State v. Patel ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. HIRAL M. PATEL
(SC 20446)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
Convicted of various crimes, including murder, in connection with a home
invasion, the defendant appealed, claiming, inter alia, that the trial court
had improperly admitted into evidence a dual inculpatory statement
made by a codefendant, C, to E, a fellow prison inmate. The defendant’s
cousin, N, had included the defendant and C in N’s plan to rob the
victim, with whom N had previously engaged in drug transactions. N
drove the defendant and C to the area of the victim’s home, which the
defendant and C eventually entered. After encountering the victim, C
shot and killed him. While in custody on an unrelated charge, C recounted
the events of the home invasion, including the defendant’s role, to E,
who surreptitiously recorded the conversation. At trial, the recording
of C’s conversation with E was admitted as a statement against penal
interest under the applicable provision (§ 8-6 (4)) of the Connecticut
Code of Evidence. In addition, defense counsel, in order to advance a
theory of third-party culpability, sought to have the defendant’s sister,
M, testify about a purported confession that P, N’s cousin, made to M.
The trial court excluded M’s testimony regarding P’s confession on the
ground that it was not sufficiently trustworthy. The Appellate Court
affirmed the judgment of conviction, and the defendant, on the granting
of certification, appealed to this court. Held:
1. The Appellate Court correctly concluded that the trial court had not
abused its discretion in admitting into evidence C’s dual inculpatory
statement to E:
a. The admission of C’s statement did not violate the defendant’s right
to confrontation under the United States constitution: in Crawford v.
United States (541 U.S. 36), the United States Supreme Court indicated
that statements of a defendant’s coconspirator to a fellow inmate incul-
pating the defendant are nontestimonial, and, subsequently, federal and
state courts have consistently rejected claims that the admission of
statements between inmates or between an inmate and an informant
that inculpate a defendant violate the defendant’s right to confrontation;
moreover, in determining whether the admission of such statements
implicates a defendant’s right to confrontation, courts have undertaken
an objective analysis of the circumstances surrounding the making of
the statements and the encounter during which they were made in order
to assess the primary purpose and degree of formality of that encounter;
in the present case, C’s statement to E was elicited under circumstances
in which the objectively manifested purpose of the encounter was not
to secure testimony for trial, as C made his statement in an informal
setting, namely, his prison cell, to his cellmate, E, who questioned C in
a sufficiently casual manner to avoid alerting C that C’s statement was
going to be relayed to law enforcement.
b. The admission of C’s statement did not violate the defendant’s confron-
tation rights under article first, § 8, of the Connecticut constitution:
although the defendant urged this court to depart from the federal stan-
dard and to hold, under the state constitution, that a statement qualifies
as testimonial if the reasonable expectation of either the declarant or
the interrogator/listener is to prove past events potentially relevant to
a later criminal prosecution, this court was not convinced that the defen-
dant established the necessary predicates for departing from the federal
standard, as an analysis under the six factors set forth in State v. Geisler
(222 Conn. 672) did not support a more protective interpretation under
the state constitution; moreover, although this court noted that it might
be compelled to reach a different result under a slight variation of the
facts, in the present case, the court had a fair assurance that government
officials did not influence the content or the making of C’s statement,
as there was no evidence to suggest any involvement by the state’s
attorney’s office in orchestrating the inquiry or that the police coached
E on what questions to ask or what facts they were seeking to learn,
and, because the conversation between C and E was recorded, the trial
court could ascertain the extent to which, if any, C’s answers may have
been shaped or coerced by E.
c. The trial court did not abuse its discretion in admitting C’s statement
under § 8-6 (4) of the Connecticut Code of Evidence as a statement
against penal interest: although the fact that the statement was made
thirteen months after the commission of the crimes weighed against its
admission, and although E and C, who were fellow inmates for only a
short period of time, did not share the type of relationship that would
support the statement’s trustworthiness, C’s account of the home inva-
sion was consistent with the physical evidence in almost all material
respects, the statement was clearly against C’s penal interest, as he cast
himself as the principal actor in the commission of the crimes, and
C’s statement and the circumstances surrounding the making of that
statement had none of the characteristics that historically has caused
courts to view dual inculpatory statements as presumptively unreliable
when offered to prove the guilt of a declarant’s accomplice.
2. The Appellate Court correctly concluded that the trial court had properly
excluded P’s confession to M, which the defendant attempted to offer
through M’s testimony as a statement against penal interest under § 8-
6 (4): the trial court reasonably concluded that P’s purported confession,
in which he admitted that it was he, and not the defendant, who accompa-
nied C into the victim’s home, was not sufficiently trustworthy to be
admitted as a statement against penal interest, as much of the evidence
that the defendant characterized as corroborative indicated only that P
may have played some role in connection with the home invasion, not
that P had been present in the victim’s home; moreover, P’s confession
was made more than one year after the incident, and M claimed to have
told no one except the defendant about P’s confession for more than
three and one-half years after P made the confession, delays that pro-
vided M with the opportunity to learn of the details of the prosecution’s
theory of the case.
Argued February 22, 2021—officially released March 22, 2022
Procedural History
Substitute information charging the defendant with
the crimes of felony murder, murder, home invasion,
burglary in the first degree as an accessory, robbery in
the first degree as an accessory, conspiracy to commit
robbery in the first degree, conspiracy to commit bur-
glary in the first degree, and tampering with physical
evidence, brought to the Superior Court in the judicial
district of Litchfield and tried to the jury before Danaher,
J.; thereafter, the court denied the defendant’s motions
to preclude certain evidence; verdict of guilty; subse-
quently, the court, Danaher, J., granted the defendant’s
motion to vacate the verdict as to the charge of felony
murder and vacated the verdict as to the charge of
conspiracy to commit robbery in the first degree; judg-
ment of guilty of murder, home invasion, burglary in the
first degree as an accessory, robbery in the first degree
as an accessory, conspiracy to commit burglary in the
first degree, and tampering with physical evidence, from
which the defendant appealed to this court; subse-
quently, the case was transferred to the Appellate Court,
Alvord, Bright and Bear, Js., which affirmed the trial
court’s judgment, and the defendant, on the granting of
certification, appealed to this court. Affirmed.
Richard Emanuel, for the appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, was Dawn Gallo, state’s attorney,
for the appellee (state).
Opinion
KAHN, J. Following a jury trial, the defendant, Hiral
M. Patel, was convicted of murder in violation of Gen-
eral Statutes § 53a-54a, home invasion in violation of
General Statutes § 53a-100aa (a) (1), burglary in the
first degree as an accessory in violation of General
Statutes §§ 53a-101 (a) (1) and 53a-8 (a), robbery in the
first degree as an accessory in violation of General
Statutes §§ 53a-134 (a) (2) and 53a-8 (a), conspiracy to
commit burglary in the first degree in violation of § 53a-
101 (a) (1) and General Statutes § 53a-48, and tampering
with physical evidence in violation of General Statutes
(Rev. to 2011) § 53a-155 (a) (1).1 The Appellate Court
affirmed the judgment of conviction; State v. Patel, 194
Conn. App. 245, 250, 301, 221 A.3d 45 (2019); and we
thereafter granted the defendant’s petition for certifica-
tion to appeal. See State v. Patel, 334 Conn. 921, 223 A.3d
60 (2020). The defendant’s principal challenge relates to
the admission into evidence of a codefendant’s recorded
dual inculpatory statement2 to a fellow inmate acting
at the behest of the state police. The defendant contends
that the Appellate Court incorrectly concluded that the
statement was nontestimonial and, therefore, did not
implicate the defendant’s confrontation rights under
either the United States constitution or the Connecticut
constitution, and that the trial court properly admitted
it under the hearsay exception for statements against
penal interest. We disagree with the defendant’s claims
and affirm the Appellate Court’s judgment.
The Appellate Court’s decision sets forth the follow-
ing facts that the jury reasonably could have found.
‘‘On June 12, 2012, [the] police arrested Niraj Patel
(Niraj), the defendant’s cousin, after a motor vehicle
stop . . . . [Niraj] was charged with criminal attempt
to possess more than four ounces of marijuana, interfer-
ing with an officer, tampering with evidence, possession
of drug paraphernalia, and motor vehicle charges. Fol-
lowing his arrest, Niraj unsuccessfully attempted to bor-
row money . . . to pay his attorney.
‘‘Niraj thereafter formed a plan to rob Luke Vitalis,
a marijuana dealer with whom Niraj had conducted
drug transactions. Vitalis lived with his mother, Rita G.
Vitalis . . . in Sharon. [Niraj offered money to Michael
Calabrese, a friend, and the defendant to perform the
robbery.]
‘‘Niraj knew that Vitalis had sold ten pounds of mari-
juana from his home on August 5, 2012, and set up a
transaction with Vitalis for the following day, with the
intention of robbing Vitalis of his proceeds of the previ-
ous sale. On August 6, 2012, Niraj drove Calabrese and
the defendant to the area of Vitalis’ home and dropped
them off down the road. Calabrese and the defendant
ran through the woods to Vitalis’ home. They watched
the home and saw Vitalis’ mother come home. At
approximately 6 p.m., Calabrese and the defendant,
wearing masks, bandanas, black hats, and gloves,
entered the home, encountered Vitalis’ mother, and
restrained her using zip ties. Calabrese, armed with a
Ruger handgun that he received from Niraj, went
upstairs and encountered Vitalis in his bedroom. He
struck Vitalis with the handgun and shot him three
times, killing him. Calabrese searched the bedroom but
could find only Vitalis’ wallet with $70 and approxi-
mately one-half ounce of marijuana, both of which he
took. Calabrese and the defendant ran from the prop-
erty into the woods, where the defendant lost his cell
phone. Calabrese and the defendant eventually met up
with Niraj, who was driving around looking for them.
Calabrese burned his clothing and sneakers on the side
of Wolfe Road in Warren.
‘‘After freeing herself, Vitalis’ mother called 911. State
police . . . arrived at the scene at approximately 6:14
p.m. and found Vitalis deceased. Some of the drawers
in the furniture in Vitalis’ bedroom were pulled out.
The police searched the bedroom and found $32,150
. . . 1.7 pounds of marijuana . . . and evidence of
marijuana sales.’’ (Footnote omitted.) State v. Patel,
supra, 194 Conn. App. 250–51.
The record reveals the following additional undis-
puted facts and procedural history. While the police
were investigating the Sharon home invasion, Calabrese
was arrested and detained on an unrelated charge.
While in custody, Calabrese recounted the events that
had occurred during the home invasion, including the
defendant’s role, to a jailhouse informant who was sur-
reptitiously recording the conversation. At trial, the
state established that Calabrese had invoked his fifth
amendment privilege not to testify and introduced, over
defense counsel’s objection, the recording of Cala-
brese’s dual inculpatory statement as a statement
against penal interest under § 8-6 (4) of the Connecticut
Code of Evidence. The state also introduced cell phone
site location information, testimony from Calabrese’s
former girlfriend, and other evidence that tended to
corroborate the defendant’s presence at, and involve-
ment in, the Sharon home invasion, as well as evidence
establishing that friends and family of the defendant
had been unable to make contact with the defendant
immediately before, during, and after the period during
which the Sharon home invasion occurred. See id., 251–
52, 262, 284–89.
The defense advanced theories of alibi and third-
party culpability. The defendant’s older sister, Salony
Majmudar, testified that the defendant was visiting her
in Boston, Massachusetts, to celebrate an important
Hindu holiday when the Sharon home invasion occurred.3
Defense counsel also sought to have Majmudar testify
about a purported confession that had been made to
her by Niraj’s brother, Shyam Patel (Shyam), in which
Shyam admitted that it was he, and not the defendant,
who had accompanied Calabrese to Vitalis’ home. Defense
counsel offered Shyam’s statement as a statement
against penal interest under § 8-6 (4) of the Connecticut
Code of Evidence. The trial court sustained the prosecu-
tor’s objection to the admission of the statement, ruling
that the statement was insufficiently trustworthy to sat-
isfy § 8-6 (4).
The jury returned a verdict, finding the defendant
guilty of murder, home invasion, burglary in the first
degree as an accessory, robbery in the first degree as
an accessory, conspiracy to commit burglary in the first
degree, and tampering with physical evidence, among
other charges, and the trial court thereafter rendered
judgment in accordance with the jury’s verdict. See
footnote 1 of this opinion. The court imposed a total
effective sentence of forty-five years of imprisonment,
execution suspended after thirty-five years and one day,
and five years of probation.
The defendant appealed from the judgment of convic-
tion, claiming that constitutional and evidentiary errors
entitled him to a new trial. See id., 249–50. The Appellate
Court affirmed the judgment of conviction. Id., 250,
301. We thereafter granted the defendant’s petition for
certification to appeal, limited to the following issues:
(1) whether the Appellate Court correctly concluded
that the admission of Calabrese’s dual inculpatory state-
ment (a) did not violate the defendant’s confrontation
rights under the United States constitution, (b) did not
violate the defendant’s confrontation rights under the
Connecticut constitution, and (c) was proper under our
code of evidence as a statement against penal interest;
and (2) whether the Appellate Court correctly con-
cluded that the trial court had properly excluded Shy-
am’s confession. See State v. Patel, supra, 334 Conn.
921 n.22. The defendant’s constitutional claims are sub-
ject to plenary review; see, e.g., State v. Smith, 289
Conn. 598, 618–19, 960 A.2d 993 (2008); whereas his
evidentiary claims, which challenge the application,
rather than the interpretation, of our code of evidence,
are reviewed for an abuse of discretion. See, e.g., State
v. Pierre, 277 Conn. 42, 68, 890 A.2d 474, cert. denied,
547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006);
see also State v. Saucier, 283 Conn. 207, 218–21, 926
A.2d 633 (2007) (contrasting standards of review).
I
The defendant challenges the admission of Cala-
brese’s dual inculpatory statement on both constitu-
tional and evidentiary grounds. We agree with the
Appellate Court that the trial court properly admitted
this statement.
The following additional undisputed facts provide
context for our resolution of this issue. Calabrese was
arrested on August 29, 2013, on drug charges unrelated
to the August 6, 2012 Sharon home invasion. He was
initially held in custody at the same correctional facility
where Wayne Early was being held following his convic-
tions of attempted burglary in the first degree with a
deadly weapon and criminal possession of a firearm.
On September 3, 2013, Early was summoned to the
facility’s intelligence office. Department of Correction
officials there informed Early that Calabrese, whom
Early did not know, was going to be moved into Early’s
cell and asked Early whether he would be willing to
wear a recording device. Early previously had made
confidential recordings of other cellmates. Early said
that he would be willing to record Calabrese, if Cala-
brese seemed inclined to talk. Late that evening, Cala-
brese was moved into Early’s cell. The two men shared
information about the charges for which they were in
custody. Early disclosed that he had originally been
charged with home invasion, but that charge later was
reduced to burglary. Calabrese responded that the
police were ‘‘looking’’ at him for the same type of inci-
dent and began to talk about the Sharon home invasion.4
Early changed the subject because he was not yet wear-
ing the recording device.
The following day, Early was brought back to the
corrections intelligence office. Early confirmed that he
was willing to record Calabrese. A corrections official
then placed a call to a state police official, who spoke
with Early to establish that he had no knowledge about
the incident of interest5 and directed Early to get details
about it if he could. When Early returned to his cell,
equipped with a hidden recording device, he gradually
turned the conversation to the subject of the home
invasion that Calabrese had mentioned the prior night,
telling Calabrese that he ‘‘want[ed] to hear how that
shit went down . . . .’’ Calabrese volunteered many
details, including the fact that the defendant partici-
pated, but Early repeatedly asked questions to obtain
further details or clarification about the incident.
Calabrese’s account ascribed the following actions
and intentions to the participants. He and the defendant
went to Sharon with the intention of robbing a drug
dealer (Vitalis). Calabrese entered Vitalis’ home first,
because he was the only one with a gun. After they
entered and saw Vitalis’ mother, Calabrese grabbed her
and started to tie her hands. Calabrese directed the
defendant to finish the task and to watch her while
Calabrese confronted Vitalis upstairs. Calabrese did not
plan to shoot Vitalis but did so after Vitalis threatened
him with a knife and tried to grab the gun. The defendant
fled when he heard the gunshots, allowing Vitalis’
mother to make her way to a phone and to call the
police. Calabrese’s search yielded only $70 and a small
amount of marijuana before he had to flee. Calabrese
was able to catch up with the defendant because the
defendant had stopped to look for his cell phone, which
he had dropped while running through a swampy area
in the woods and was unable to recover. Niraj, who
had planned the robbery, eventually found them and
gave Calabrese a change of clothes. Calabrese set fire
to his blood soaked clothes and shoes in a wooded
area, because he had left a footprint in a pool of Vitalis’
blood at the crime scene.
At trial, the state offered the recording of Calabrese’s
dual inculpatory statement into evidence for its truth;
therefore, it indisputably is hearsay. See Conn. Code
Evid. § 8-1 (3). Because Calabrese’s invocation of his
fifth amendment privilege not to testify deprived the
defendant of an opportunity to cross-examine Cala-
brese about that statement, his statement is admissible
only if it avoids the constitutional hurdle imposed by
the confrontation clauses of the federal and state consti-
tutions; see U.S. Const., amends. VI and XIV, §1; Conn.
Const., art. I, § 8; and the evidentiary hurdle of hear-
say rules.6
A
The parties disagree as to whether the United States
Supreme Court has in fact settled the issue of whether
the admission of a hearsay statement to a jailhouse
informant inculpating the declarant and a codefendant
violates the codefendant’s rights under the confronta-
tion clause of the sixth amendment to the United States
constitution. The defendant contends that the court
answered that question in the negative only in dicta,
under distinguishing circumstances, and that subse-
quent decisions that have expanded the framework of
this inquiry by recognizing that the identity and actions
of the questioner must be considered. The defendant
argues that he prevails under the current framework
because Early, acting as an agent of law enforcement,
effectively interrogated Calabrese for the primary pur-
pose of obtaining testimony to be used in a criminal
prosecution.
There can be no doubt that the court’s confrontation
clause jurisprudence has vexed courts as applied to
particular circumstances, a point we elaborate on in
part I B of this opinion. The present case, however, is
one in which we have confidence as to how the court
would resolve the issue presented, namely, in favor of
the state. The federal constitutional issue, therefore, is
our starting point. See State v. Purcell, 331 Conn. 318,
334 n.11, 203 A.3d 542 (2019) (noting that we address
federal constitution first when ‘‘we can predict to a
reasonable degree of certainty how the United States
Supreme Court would resolve the issue’’); see also State
v. Taupier, 330 Conn. 149, 166 n.14, 193 A.3d 1 (2018)
(concluding that it was more efficient to address federal
claim first because review of federal precedent would
be necessary under state constitutional framework in
State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225(1992)), cert. denied, U.S. , 139 S. Ct. 1188, 203
L. Ed. 2d 202 (2019).
The sixth amendment’s confrontation clause, which
is binding on the states through the due process clause
of the fourteenth amendment; Pointer v. Texas, 380
U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965);
provides in relevant part: ‘‘In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .’’ U.S. Const.,
amend. VI. Although an ‘‘essential purpose of confronta-
tion is to secure for the opponent the opportunity of
cross-examination’’; (emphasis omitted; internal quota-
tion marks omitted) Davis v. Alaska, 415 U.S. 308, 315–
16, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); this clause
has never been interpreted to require the opportunity
to cross-examine every hearsay declarant. See, e.g.,
Idaho v. Wright, 497 U.S. 805, 813–14, 110 S. Ct. 3139,
111 L. Ed. 2d 638 (1990); see also Crawford v. Washing-
ton, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d
177 (2004).
In prior cases, we have chronicled the development
of the court’s confrontation case law, including its sea
change from a focus on whether the hearsay statement
bore adequate ‘‘indicia of reliability’’; (internal quota-
tion marks omitted) Ohio v. Roberts, 448 U.S. 56, 66,
100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); to a focus on
whether the statement is ‘‘[t]estimonial’’ in nature under
Crawford v. Washington, supra, 541 U.S. 59, and its
progeny. See generally State v. Rodriguez, 337 Conn.
175, 226–27, 252 A.3d 811 (2020) (Kahn, J., concurring).7
Although the court has ‘‘labored to flesh out what it
means for a statement to be ‘testimonial’ ’’; Ohio v.
Clark, 576 U.S. 237, 244, 135 S. Ct. 2173, 192 L. Ed. 2d
306 (2015); it has deemed the term to include not only
ex parte in-court testimony and formalized testimonial
materials such as affidavits and depositions but also
‘‘[p]olice interrogations . . . .’’ Crawford v. Washing-
ton, supra, 51–53. The court used that term in its collo-
quial, rather than its strictly legal, sense to include a
‘‘recorded statement, knowingly given in response to
structured police questioning . . . .’’ Id., 53 n.4. Such
statements ‘‘are testimonial when the circumstances
objectively indicate that . . . the primary purpose of the
interrogation is to establish or prove past events poten-
tially relevant to later criminal prosecution.’’ (Internal
quotation marks omitted.) Ohio v. Clark, supra, 244,
quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.
Ct. 2266, 165 L. Ed. 2d 224 (2006).
In dicta in Crawford and Davis, the court indicated
that statements of a coconspirator to a fellow inmate
and to an undercover agent inculpating the defendant
were clearly nontestimonial. The court asserted that its
newly adopted testimonial rubric would not alter the
results reached in its prior cases. See Davis v. Washing-
ton, supra, 547 U.S. 825–26; Crawford v. Washington,
supra, 541 U.S. 58. Two of the cases cited by the court
as examples were Dutton v. Evans, 400 U.S. 74, 77–78,
91 S. Ct. 210, 27 L. Ed. 2d 213 (1970) (plurality opinion),
and Bourjaily v. United States, 483 U.S. 171, 174, 107
S. Ct. 2775, 97 L. Ed. 2d 144 (1987), in which the declar-
ants were unavailable for cross-examination. See Davis
v. Washington, supra, 825; Crawford v. Washington,
supra, 57–58. In Dutton, the court had held that the
admission of a statement of the defendant’s coconspira-
tor to a cellmate, implicating the defendant in a triple
homicide, did not violate the defendant’s confrontation
rights. See Dutton v. Evans, supra, 87–89. In Bourjaily,
the court had held that the admission of a recorded
telephone conversation between the defendant’s cocon-
spirator and an FBI informant, in which the coconspira-
tor implicated the defendant in a drug selling enterprise,
did not violate the defendant’s confrontation rights. See
Bourjaily v. United States, supra, 173–74, 183–84.
Post-Crawford, federal courts and state courts have
consistently rejected claims that the admission of inmate
to inmate or inmate to informant statements inculpating
a defendant, whether recorded or not, violated his or
her confrontation rights. See, e.g., United States v. Veloz,
948 F.3d 418, 430–32 (1st Cir.), cert. denied, U.S.
, 141 S. Ct. 438, 208 L. Ed. 2d 133 (2020); United
States v. Dargan, 738 F.3d 643, 650–51 (4th Cir. 2013);
United States v. Dale, 614 F.3d 942, 954–56 (8th Cir.
2010), cert. denied, 563 U.S. 918, 131 S. Ct. 1814, 179
L. Ed. 2d 774 (2011), and cert. denied sub nom. Johnson
v. United States, 563 U.S. 919, 131 S. Ct. 1814, 179 L.
Ed. 2d 775 (2011); United States v. Smalls, 605 F.3d
765, 778 (10th Cir. 2010); People v. Arauz, 210 Cal. App.
4th 1394, 1402, 149 Cal. Rptr. 3d 211 (2012); State v.
Nieves, 376 Wis. 2d 300, 326–27, 897 N.W.2d 363 (2017).
Courts also have routinely held that statements made
unwittingly to a government agent or an undercover
officer, outside of the prison context, are nontestimo-
nial.8 See, e.g., Brown v. Epps, 686 F.3d 281, 287 and n.35
(5th Cir. 2012) (citing cases reaching this conclusion).
Although some of these cases simply relied on the
United States Supreme Court’s dicta; see, e.g., United
States v. Veloz, supra, 431–32; United States v. Saget,
377 F.3d 223, 229 (2d Cir. 2004), cert. denied, 543 U.S.
1079, 125 S. Ct. 938, 160 L. Ed. 2d 821 (2005); many
others reasoned that such statements could not have
been given for the purpose of proving past facts relevant
to a prosecution because the declarant did not know
that he was speaking to an informant or an undercover
officer. See, e.g., United States v. Dargan, supra, 646,
650–51; State v. Nieves, supra, 326–27.
The defendant contends, however, that the court’s
more recent confrontation clause jurisprudence sug-
gests that the court would now reject this dicta. Our
review of this case law confirms, rather than under-
mines, the vitality of this dicta.
‘‘Crawford and Davis did not address whose perspec-
tive matters—the declarant’s, the interrogator’s, or
both—when assessing the primary purpose of [an] inter-
rogation.’’ (Internal quotation marks omitted.) Michi-
gan v. Bryant, 562 U.S. 344, 381, 131 S. Ct. 1143, 179
L. Ed. 2d 93 (2011) (Scalia, J., dissenting). More recent
cases have interpreted Davis to require consideration
of ‘‘the statements and actions of the parties to the
encounter, in light of the circumstances in which the
interrogation occurs.’’ Id., 370; see also Ohio v. Clark,
supra, 576 U.S. 246–47 (considering identity of partici-
pants as well). A consistent theme echoed in the case
law, however, is that this consideration is one based
on objective facts. See Davis v. Washington, supra, 547
U.S. 826 (‘‘[t]he question before us in Davis . . . is
whether, objectively considered, the interrogation that
took place in the course of the 911 call produced testi-
monial statements’’); Crawford v. Washington, supra,
541 U.S. 52 (testimonial statements would include those
‘‘that were made under circumstances which would
lead an objective witness reasonably to believe that the
statement would be available for use at a later trial’’
(internal quotation marks omitted)).
This point was underscored and elaborated on in
Michigan v. Bryant, supra, 562 U.S. 344, when the court
stated: ‘‘The Michigan Supreme Court correctly under-
stood that this inquiry is objective. . . . Davis uses the
word ‘objective’ or ‘objectively’ no fewer than eight
times in describing the relevant inquiry. . . . ‘Objectively’
also appears in the definitions of both testimonial and
nontestimonial statements that Davis established.
. . .
‘‘An objective analysis of the circumstances of an
encounter and the statements and actions of the parties
to it provides the most accurate assessment of the ‘pri-
mary purpose of the interrogation.’ The circumstances
in which an encounter occurs—e.g., at or near the scene
of the crime versus at a police station, during an ongoing
emergency or afterwards—are clearly matters of objec-
tive fact. The statements and actions of the parties
must also be objectively evaluated. That is, the relevant
inquiry is not the subjective or actual purpose of the
individuals involved in a particular encounter, but
rather the purpose that reasonable participants would
have had, as ascertained from the individuals’ state-
ments and actions and the circumstances in which
the encounter occurred.’’ (Citations omitted; emphasis
added; footnote omitted.) Id., 360.
The court’s most recent confrontation clause case
exemplifies this objective, totality of circumstances
approach, as well as the significance of the formality
of the encounter in making that determination. See Ohio
v. Clark, supra, 576 U.S. 237. In Clark, the court consid-
ered the statements of a three year old child, in response
to his teachers’ questions, in which he identified his
mother’s boyfriend as the perpetrator of injuries discov-
ered by the teachers. Id., 240. The teachers were man-
dated by state law to report suspected abuse to govern-
ment authorities. Id., 242. These facts required the court
to squarely address for the first time the question of
whether statements made to individuals who are not
law enforcement officers implicate confrontation rights.
Id., 246.
The court first summarized its confrontation clause
jurisprudence, noting that the primary purpose test has
evolved to require consideration of ‘‘all of the relevant
circumstances.’’ (Internal quotation marks omitted.) Id.,
244. One such circumstance it identified ‘‘is the infor-
mality of the situation and the interrogation. . . . A
formal [station house] interrogation, like the ques-
tioning in Crawford, is more likely to provoke testimo-
nial statements, while less formal questioning is less
likely to reflect a primary purpose aimed at obtaining
testimonial evidence against the accused.’’ (Citation
omitted; internal quotation marks omitted.) Id., 245.
The court in Clark recognized that statements to indi-
viduals who are not law enforcement officers ‘‘could
conceivably raise confrontation concerns’’; id., 246; but
cautioned that ‘‘[s]tatements made to someone who is
not principally charged with uncovering and prosecut-
ing criminal behavior are significantly less likely to be
testimonial than statements given to law enforcement
officers.’’ Id., 249. Thus, the fact that the child was speak-
ing to his teachers ‘‘remains highly relevant. Courts must
evaluate challenged statements in context, and part of
that context is the questioner’s identity.’’ Id., 249; see also
id. (‘‘the relationship between a student and his teacher
is very different from that between a citizen and the
police’’).
In concluding that the primary purpose of the encoun-
ter was not to gather evidence for the defendant’s prose-
cution but to protect the child, the court in Clark
pointed to the following facts: ‘‘At no point did the
teachers inform [the child] that his answers would be
used to arrest or punish his abuser. [The child] never
hinted that he intended his statements to be used by
the police or prosecutors.9 And the conversation between
[the child] and his teachers was informal and spontane-
ous. The teachers asked [the child] about his injuries
immediately upon discovering them, in the informal
setting of a preschool lunchroom and classroom, and
they did so precisely as any concerned citizen would
talk to a child who might be the victim of abuse. This
was nothing like the formalized [station house] ques-
tioning in Crawford or the police interrogation and
battery affidavit in Hammon [v. Indiana, which was
decided together with Davis v. Washington, supra, 547
U.S. 813].’’10 (Footnote added.) Id., 247.
Consistent with Bryant, the court in Clark thus relied
exclusively on the objectively manifested facts—what
was said, who said it, how it was said, and where it
was said. Nothing indicates that, contrary to Bryant,
the hidden intentions or identity of the person eliciting
the statement would be relevant, let alone dispositive.11
See United States v. Volpendesto, 746 F.3d 273, 289–90
(7th Cir.) (‘‘Bryant mandates that we not evaluate the
purpose of [the] recorded conversation from the subjec-
tive point of view of [the coconspirator], who knew he
was secretly collecting evidence for the government.
Instead, we evaluate their conversation objectively. And
from an objective perspective, [the recorded] conversa-
tion looks like a casual, confidential discussion between
[coconspirators].’’), cert. denied sub nom. Sarno v.
United States, 574 U.S. 936, 135 S. Ct. 382, 190 L. Ed.
2d 256 (2014), and cert. denied sub nom. Polchan v.
United States, 574 U.S. 936, 135 S. Ct. 383, 190 L. Ed.
2d 256 (2014). Clark also underscores the significance
of the formality surrounding the questioning, which
imparts to the declarant a solemnity of purpose akin
to other forms of testimonial statements, such as ex
parte testimony, affidavits, and grand jury testimony.
See Ohio v. Clark, supra, 576 U.S. 243 (‘‘[i]n Crawford
. . . [w]e explained that ‘witnesses,’ under the [c]on-
frontation [c]lause, are those ‘who bear testimony,’ and
we defined ‘testimony’ as ‘a solemn declaration or affir-
mation made for the purpose of establishing or proving
some fact’ ’’ (citation omitted)); see also State v. Sin-
clair, 332 Conn. 204, 225, 210 A.3d 509 (2019) (‘‘there
is agreement among all of the justices that the formality
attendant to the making of the statement must be con-
sidered’’).
The court’s reasoning in Bryant and Clark thus con-
firms the court’s dicta characterizing the statements in
Dutton and Bourjaily made to persons who harbored
secret intentions to obtain evidence to be used at trial
as clearly nontestimonial.12 Like the statements in Dut-
ton and Bourjaily, Calabrese’s statement was elicited in
circumstances under which the objectively manifested
purpose of the encounter was not to secure testimony
for trial. Calabrese made his statements in an informal
setting, his prison cell, to his cellmate, who undoubtedly
actively questioned the defendant but did so in an evi-
dently sufficiently casual manner to avoid alerting Cala-
brese that his statement was going to be relayed to law
enforcement. Cf. United States v. Dargan, supra, 738
F.3d 650–51 (statements by defendant’s coconspirator
to cellmate were clearly nontestimonial because they
were made ‘‘in an informal setting—a scenario far afield
from the type of declarations that represented the focus
of Crawford’s concern’’ and declarant ‘‘had no plausible
expectation of ‘bearing witness’ against anyone’’). The
admission of Calabrese’s dual inculpatory statement,
therefore, did not violate the defendant’s confrontation
rights under the federal constitution.
B
We next turn to the defendant’s confrontation clause
challenge under article first, § 8, of the Connecticut
constitution. The defendant asks this court to hold that,
under our state constitution, a statement qualifies as
‘‘testimonial’’ if the reasonable expectation of either the
declarant or the interrogator/listener is to establish
or to prove past events potentially relevant to a later
criminal prosecution. (Internal quotation marks omit-
ted.) We are not persuaded that the defendant has estab-
lished the necessary predicates for departing from the
federal standard. We do not, however, foreclose the
possibility of departing from the federal standard under
appropriate circumstances in a future case, and raise
a strong cautionary note about the present circum-
stances.
In State v. Geisler, supra, 222 Conn. 684–85, this court
identified factors to be considered to encourage a prin-
cipled development of our state constitutional jurispru-
dence. Those six factors are (1) persuasive relevant
federal precedents, (2) the text of the operative consti-
tutional provisions, (3) historical insights into the intent
of our constitutional forebears, (4) related Connecticut
precedents, (5) persuasive precedents of other state
courts, and (6) contemporary understandings of appli-
cable economic and sociological norms, or as otherwise
described, relevant public policies. Id., 685; accord Fee-
han v. Marcone, 331 Conn. 436, 449, 204 A.3d 666, cert.
denied, U.S. , 140 S. Ct. 144, 205 L. Ed. 2d 35(2019).
The defendant concedes that the first, second, and
fifth factors do not support a more protective interpreta-
tion under state law. The text of the two clauses are
nearly identical. Compare Conn. Const., art. I, § 8 (guar-
anteeing defendant’s right ‘‘to be confronted by the
witnesses against him’’ (emphasis added)) with U.S.
Const., amend. VI (guaranteeing right ‘‘to be confronted
with the witnesses against him’’ (emphasis added)).
The federal and state precedent we have addressed in
part I A of this opinion does not support the defendant’s
proposed standard. To this we would add that we are
aware of only one state that has charted an independent
course under its state constitution’s confrontation
clause with regard to this issue.13 That state did not
adopt the defendant’s proposed standard; it never
adopted Crawford’s testimonial standard and contin-
ued to adhere to the ‘‘adequate indicia of reliability’’
standard recognized in Ohio v. Roberts, supra, 448 U.S.
66. See State v. Copeland, 353 Or. 816, 820–24, 306 P.3d
610 (2013).
With regard to the third and fourth factors, historical
insights and Connecticut precedent, the defendant
expressly conceded before the Appellate Court that
these factors also do not favor his position. This court’s
first confrontation clause case, in 1921, took the posi-
tion that ‘‘[t]he underlying reasons for the adoption of
this right in the [f]ederal [c]onstitution and in [s]tate
[c]onstitutions, and the principles of interpretation
applying to this provision, are identical.’’ State v. Gae-
tano, 96 Conn. 306, 310, 114 A. 82 (1921). We recently
reiterated this position. See State v. Lockhart, 298 Conn.
537, 555, 4 A.3d 1176 (2010) (noting that federal and state
provisions are subject to same interpretation because
they have ‘‘shared genesis in the common law’’).14
The defendant does not expressly concede the third
and fourth Geisler factors to this court as he did before
the Appellate Court, but he acknowledges this case law
in his brief to this court. In lieu of an argument regarding
the significance of that case law, the defendant empha-
sizes the historical fact that third-party statements
against penal interest constituted inadmissible hearsay
at the time of the framing, as well as for an extended
period thereafter. See, e.g., Bruton v. United States,
391 U.S. 123, 128 n.3, 88 S. Ct. 1620, 20 L. Ed. 2d 476(1968); State v. Schiappa, 248 Conn. 132, 147 and n.18,
728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152,
145 L. Ed. 2d 129 (1999). See generally E. Schaerer,
‘‘Proving the Constitution: Burdens of Proof and the
Confrontation Clause,’’ 55 U. Rich. L. Rev. 491, 494
(2021) (‘‘[a]t the framing, hearsay was more strictly
prohibited at trial, and courts recognized few hearsay
exceptions’’). This fact has no logical connection, how-
ever, to the defendant’s proposed confrontation stan-
dard.15 The defendant’s testimonial standard would not
categorically preclude such statements, whether they
were dual inculpatory statements or not; it would only
preclude such statements when the declarant is unavail-
able for cross-examination and the reasonable expecta-
tion of either the declarant or the listener is to establish
or to prove past events potentially relevant to a later
criminal prosecution. Reliance on the lack of a recog-
nized exception for these statements at the time of the
framing is also in tension with the defendant’s represen-
tation that he does not seek to overrule Crawford,
which rejected the Roberts framework, which consid-
ered whether the statement fell within a ‘‘firmly rooted’’
hearsay exception. See Ohio v. Roberts, supra, 448 U.S.
66; see also State v. Nieves, supra, 376 Wis. 2d 316–19
(citing sources addressing admission of dual inculpa-
tory statements post-Crawford and acknowledging that
Bruton16 doctrine regarding confrontation violation aris-
ing from admission of such statements as against third
party survives only as to testimonial statements).
The defendant’s state constitutional claim, thus,
effectively rests exclusively on the sixth Geisler factor,
public policy. He identifies the following considera-
tions. First, the defendant argues that the United States
Supreme Court is not infallible. The sea change from
Roberts’ reliability standard to Crawford’s testimonial
standard demonstrates this reality, as does the fact that
the court’s confrontation clause case law continues to
be in flux. Second, the defendant seeks a modified inter-
pretive standard—an additional layer of prophylaxis to
prevent a significant risk of deprivation of confrontation
rights—not the rejection of the court’s testimonial, pri-
mary purpose framework. The defendant argues that
this interpretation fills a gap in the court’s case law,
which has yet to clarify if a statement is testimonial
when the speaker is unaware that the statement may
be used as evidence in a criminal prosecution but the
listener seeks to obtain the statement for that purpose.
He contends that, by adopting a standard under which
the perspective of either the declarant or the listener
can render the statement testimonial, we would place
the emphasis where it belongs—on the testimonial
effect of the statement, i.e., the jury would believe that
the statement is equivalent to testimony and would rely
on it to assess guilt or innocence. Third, the defendant
argues that the adoption of the ‘‘either perspective’’
approach would serve the public interest by enhancing
the perception that our criminal trial proceedings are
fair.17 (Internal quotation marks omitted.)
We are not persuaded that these arguments are suffi-
cient to carry the day under the present circumstances.
We previously have relied on policy considerations simi-
lar to those mentioned by the defendant but have always
cited to other Geisler factors that supported the rule
we adopted. See, e.g., State v. Purcell, supra, 331 Conn.
342–46 (explaining that we were adopting broader pro-
phylactic rule not expanding constitutional right, but
also citing other Geisler factors that supported rule);
State v. Linares, 232 Conn. 345, 379–80, 655 A.2d 737(1995) (concluding that United States Supreme Court’s
rationale for departing from prior, more protective stan-
dard was unsound but also citing other Geisler factors
that supported our rule). Although the need to fill a
‘‘gap’’ in the court’s confrontation jurisprudence to
resolve a case may provide a compelling policy argu-
ment, even in the absence of other supporting Geisler
factors, our discussion in part II explains why the gap
identified by the defendant does not exist. None of the
defendant’s other policy arguments rises to a similar
level of necessity. Some of his policy arguments, e.g.,
that the court does not always reach the correct result,
could apply in any case. In sum, it is clear that the
defendant cannot prevail under a traditional Geisler
analysis. His state constitutional claim under the con-
frontation clause, therefore, fails.18
We end this discussion, however, with a strong note
of caution. Although the defendant cannot prevail under
our state constitution in the present case, we might be
compelled to reach a different result under a slight
variation of facts. The circumstances under which Cala-
brese’s statement was elicited implicate several con-
cerns identified by the court in Crawford and its prog-
eny. Crawford recognized that ‘‘[i]nvolvement of govern-
ment officers in the production of testimony with an eye
toward trial presents unique potential for prosecutorial
abuse . . . .’’ Crawford v. Washington, supra, 541 U.S.
56 n.7. The court in Davis also cautioned that law
enforcement officials should not be permitted to cir-
cumvent the confrontation clause by intentionally alter-
ing the method by which they collect the statement
to render the statement nontestimonial. See Davis v.
Washington, supra, 547 U.S. 826 (‘‘we do not think it
conceivable that the protections of the [c]onfrontation
[c]lause can readily be evaded by having a note-taking
policeman recite the unsworn hearsay testimony of the
declarant, instead of having the declarant sign a deposi-
tion’’ (emphasis omitted)); see also Williams v. Illinois,
567 U.S. 50, 133, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012)
(Kagan, J., dissenting) (noting that five justices reject
proposition that, ‘‘[i]f the [c]onfrontation [c]lause pre-
vents the [s]tate from getting its evidence in through
the front door, then the [s]tate could sneak it in through
the back’’). Recruiting an inmate to elicit inculpatory
evidence regarding uncharged criminal activity from
another inmate suspected of committing such activity,
when law enforcement officials would be unable, or
were in fact unable, to obtain a confession directly,19
clearly raises the potential for abuse.20 Although such
circumstances do not meet the present legal definition
of an interrogation and, hence, do not implicate the
confrontation clause, we can envision facts under
which eliciting an inculpatory statement in this setting
might rise to the level of a violation of due process or
a circumstance under which it might be appropriate for
this court to consider the extraordinary measure of
reversal under the exercise of its supervisory authority.
Cf. Illinois v. Perkins, 496 U.S. 292, 302–303, 110 S. Ct.
2394, 110 L. Ed. 2d 243 (1990) (Brennan, J., concurring)
(expressing concern whether due process may be vio-
lated when undercover agent and jailhouse informant
‘‘lure [the] respondent into incriminating himself when
he was in jail on an unrelated charge,’’ noting that, under
such circumstances, state ‘‘can ensure that a suspect
is barraged with questions from an undercover agent
until the suspect confesses’’).
Our concerns are tempered in the present case, how-
ever, for a few reasons. There was no evidence pre-
sented suggesting any involvement by the Office of the
State’s Attorney in orchestrating the recording or direct-
ing the inquiry. Nor is there evidence that any police
official coached Early on what questions to ask or what
facts they were seeking to learn. The trial court did not
abuse its discretion by crediting Early’s testimony that
he was not given any information about the crime and
that Calabrese first raised the subject of his involvement
in the Sharon home invasion.21 Because the exchange
was recorded, the trial court was able to ascertain the
extent to which, if any, Calabrese’s answers may have
been shaped or coerced by Early. See M. Berger, ‘‘The
Deconstitutionalization of the Confrontation Clause: A
Proposal for a Prosecutorial Restraint Model,’’ 76 Minn.
L. Rev. 557, 609 (1992) (noting that recording coconspir-
ators’ statements made to government agent or infor-
mant will ‘‘deter prosecutorial abuse and enhance jury’s
ability to function’’). Recording also eliminates con-
cerns of fabrication by the informant. See id.; cf. State
v. Jones, 337 Conn. 486, 504, 254 A.3d 239 (2020) (noting
that special credibility instruction is required when jail-
house informant testifies because such testimony must
be reviewed with particular scrutiny in light of witness’
powerful motive to falsify his or her testimony). That
recording makes clear that Calabrese volunteered most
of the inculpatory information with no prompting. We
therefore have a fair assurance that the involvement of
government officials did not influence the content or
the making of the statement.
C
Because we have concluded that the admission of
Calabrese’s dual inculpatory statement did not violate
the defendant’s federal or state confrontation rights,
the admissibility of the statement is, therefore, limited
only by the rules of evidence. See, e.g., Ohio v. Clark,
supra, 576 U.S. 245. Calabrese’s statement was admitted
under the hearsay exception for statements against
penal interest. See Conn. Code Evid. § 8-6 (4). ‘‘We
evaluate dual inculpatory statements using the same
criteria that we use for statements against penal inter-
est.’’ State v. Camacho, 282 Conn. 328, 359, 924 A.2d
99, cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L.
Ed. 2d 273 (2007). We conclude that the trial court’s
admission of Calabrese’s statement under § 8-6 (4) was
not an abuse of discretion.
Admission of a hearsay statement pursuant to § 8-6
(4) of the Connecticut Code of Evidence ‘‘is subject to
a binary inquiry: (1) whether [the] statement . . . was
against [the declarant’s] penal interest and, if so, (2)
whether the statement was sufficiently trustworthy.’’
(Internal quotation marks omitted.) State v. Bonds, 172
Conn. App. 108, 117, 158 A.3d 826, cert. denied, 326
Conn. 907, 163 A.3d 1206 (2017); see also State v. Pierre,
supra, 277 Conn. 67. Only the second part of that inquiry
is at issue in this appeal.
Our code of evidence directs trial courts to consider
the following factors in assessing the trustworthiness
of the statement: ‘‘(A) the time the statement was made
and the person to whom the statement was made, (B)
the existence of corroborating evidence in the case,
and (C) the extent to which the statement was against
the declarant’s penal interest.’’ Conn. Code Evid. § 8-6
(4). ‘‘[N]o single factor . . . is necessarily conclusive
. . . . Thus, it is not necessary that the trial court find
that all of the factors support the trustworthiness of the
statement. The trial court should consider all of the fac-
tors and determine whether the totality of the circum-
stances supports the trustworthiness of the statement.’’
(Citations omitted; internal quotation marks omitted.)
State v. Lopez, 254 Conn. 309, 316, 757 A.2d 542 (2000).
The trial court concluded that the length of the delay
between the crimes and the making of the statement,
thirteen months, weighed against its trustworthiness
but that all of the other factors strongly weighed in
favor of admission. The state concedes that the timing
of the statement weighs against admission. See, e.g.,
State v. Pierre, supra, 277 Conn. 70 (‘‘[i]n general, decla-
rations made soon after the crime suggest more reliabil-
ity than those made after a lapse of time [when] a
declarant has a more ample opportunity for reflection
and contrivance’’ (internal quotation marks omitted)).
We therefore focus on the remaining factors. We dis-
agree with the trial court’s treatment of one of the
factors but conclude that it ultimately did not abuse its
discretion in admitting the statement.
The trial court suggested that the fact that the state-
ment was made ‘‘to a fellow inmate who appeared to
the defendant [to] be a fellow gang member, and one
who was facing serious charges,’’ rendered the state-
ment more trustworthy. The record does not support
a factual predicate for this conclusion, and the law does
not support its reasoning. Calabrese was not a fellow
gang member.22 He unambiguously informed Early that
he was not a ‘‘blood,’’ although ‘‘all [his] boys’’ belonged
to the gang, and he did not join because he ‘‘really
[didn’t] give a shit’’ about belonging to the gang.
The fact that Early and Calabrese were fellow
inmates, in and of itself, does not establish that they
shared the type of relationship of trust and confidence
that demonstrates the trustworthiness of the statement.
Cf. State v. Thompson, 305 Conn. 412, 435, 45 A.3d 605(2012) (statement was trustworthy when made to fellow
inmate who was known to declarant for several years
before incarceration, and with whom declarant had
become ‘‘reasonably close’’ in two months of incarcera-
tion prior to making of statement (internal quotation
marks omitted)), cert. denied, 568 U.S. 1146, 133 S. Ct.
988, 184 L. Ed. 2d 767 (2013); State v. Camacho, supra,282 Conn. 361 (statement made ‘‘to people with whom
[declarant] had a trusting relationship’’); State v. Pierre,
supra, 277 Conn. 69 (statement made to friend, with
whom declarant ‘‘routinely socialized’’); State v. Bryan,
193 Conn. App. 285, 304–306, 219 A.3d 477 (relationship
of trust and friendship when declarant had known per-
son to whom he made statement for approximately ten
years, had stayed at person’s home, and had committed
robbery with that person), cert. denied, 334 Conn. 906,
220 A.3d 37 (2019). Our appellate case law indicates
that ‘‘[s]tatements made by a declarant to fellow
inmates have been considered untrustworthy. See State
v. DeFreitas, 179 Conn. 431, 453, 426 A.2d 799 (1980)
(declarations against penal interest are untrustworthy
when, inter alia, confessions made to fellow inmate);
Morant v. State, 68 Conn. App. 137, 172, 802 A.2d 93(exclusion of [third-party] confession proper when,
inter alia, declarant confided not in close friends but
in fellow inmate) (overruled in part on other grounds
by Shabazz v. State, 259 Conn. 811, 830 n.13, 792 A.2d
797 (2002)), cert. denied, 260 Conn. 914, 796 A.2d 558(2002). The fact that the statements allegedly made by
[the declarant] were made to a fellow inmate, with
whom [the declarant] did not have a close relationship,
weighs against their trustworthiness.’’ (Emphasis added.)
Martin v. Flanagan, 107 Conn. App. 544, 549–50, 945
A.2d 1024 (2008).
State v. Smith, supra, 289 Conn. 598, on which the
state relies, is not to the contrary. In Smith, we con-
cluded that the trial court’s admission of an inmate’s
recorded statement, when the court found that it was
made in a private manner to a cellmate in whom the
declarant would be likely to confide, was not an abuse
of discretion. Id., 630, 632–33. It was not our intention
in Smith to adopt a blanket rule or presumption that
a relationship between inmates, or even cellmates, is
one of trust and confidence simply because of their
shared circumstance. The inmates in Smith were both
facing drug charges and had been cellmates for perhaps
as long as one month when the statements were made.
Id., 615.
In the present case, Early and Calabrese were strang-
ers who were cellmates for less than twenty-four hours
when the statement was made. Early’s purported status
as a gang member could have induced Calabrese to
embellish his criminal history to send a message that
neither Early nor any of his fellow gang members in
the facility should mess with him. There is no basis in
the record to conclude that, in this fleeting period, a
relationship of trust and confidence developed.
The two remaining factors, however, corroboration
and the degree to which the statement was against
Calabrese’s penal interest, overwhelmingly weigh in
favor of trustworthiness. Calabrese’s account was con-
sistent with the physical evidence in almost all material
respects; the only material inconsistency was his claim
that Vitalis had pulled a knife on him when no knife
was found at the scene. There are numerous reasons
why Calabrese may have intentionally fabricated the
existence of the knife.23 The state also produced inde-
pendent evidence to corroborate Calabrese’s identifica-
tion of the defendant as his accomplice and Calabrese’s
presence at the scene—cell phone location information
and a statement that Calabrese had made to his girl-
friend before the crime, among other evidence. Although
the defendant points to certain aspects of Calabrese’s
account that are inconsistent with the evidence (i.e., time
of day, which door was the point of entry, etc.), none of
these facts is material. It is unsurprising that such incon-
sequential details could have been misremembered more
than one year after the events occurred.
The extent to which the statement is against Cala-
brese’s own penal interest could not be greater. He cast
himself as the principal actor—the only perpetrator
armed, the person who first restrained Vitalis’ mother,
the person who shot Vitalis, and the only one who stole
property from the scene. He exposed himself to felony
murder charges, among other charges. Calabrese’s
statement and the circumstances of its making have
none of the characteristics that had historically caused
courts to view dual inculpatory statements as presump-
tively unreliable when offered to prove the guilt of an
accomplice of the declarant. See Lilly v. Virginia, 527
U.S. 116, 134, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999)
(plurality opinion) (concluding that such statements are
not within firmly rooted hearsay exception for confron-
tation clause purposes); see also id., 136–37 (confirming
that such statements may nonetheless be admitted if
they possess particularized guarantees of trustworthi-
ness). Calabrese neither shifted blame from himself to
the defendant nor attempted to share the blame for
the murder with the defendant. See State v. Schiappa,
supra, 248 Conn. 155 (citing these factors). Calabrese
did not know that his statement was being recorded at
the behest of state officials, and, thus, he could not
have been making the statement to curry favor with
the government. See State v. Rivera, 268 Conn. 351,
370, 844 A.2d 191 (2004) (‘‘Lilly’s main concern was
with statements in which, as is common in police station
confessions, the declarant admits only what the authori-
ties are already capable of proving against him and
seeks to shift the principal blame to another (against
whom the prosecutor then offers the statement at trial)’’
(internal quotation marks omitted)); State v. Gold, 180
Conn. 619, 635, 431 A.2d 501 (concern with attempt to
‘‘curry favor’’), cert. denied, 449 U.S. 920, 101 S. Ct. 320,
66 L. Ed. 2d 148 (1980); 2 R. Mosteller, McCormick on
Evidence (8th Ed. 2020) § 319, p. 569 (‘‘federal courts
have most frequently admitted [third-party] statements
that inculpate a defendant [when] two general condi-
tions are satisfied: (1) the statement does not seek to
curry the favor of law enforcement authorities, and
(2) it does not shift blame’’). Therefore, the trial court
clearly did not abuse its discretion by admitting Cala-
brese’s dual inculpatory statement under § 8-6 (4).
II
The defendant’s final challenge is to the trial court’s
exclusion of Shyam’s confession to the defendant’s sis-
ter, Majmudar, which the defendant offered as a state-
ment against penal interest under § 8-6 (4) of the Con-
necticut Code of Evidence. The defendant contends
that the trial court abused its discretion in concluding
that Shyam’s statement was not trustworthy. We agree
with the Appellate Court that the trial court’s ruling
was not an abuse of discretion.24
The principles that we articulated in part I C regarding
the hearsay exception for statements against penal
interest under § 8-6 (4) of the Connecticut Code of Evi-
dence apply equally to the admissibility of Shyam’s con-
fession. We assess the trial court’s discretion in applying
those principles to the following undisputed facts. Dur-
ing the presentation of the defense’s case-in-chief, Maj-
mudar testified that her cousin Shyam had made a sur-
prise visit to her Boston home sometime in the last two
weeks of September, 2013. When asked what Shyam
had said during that visit, the prosecutor objected. In
a proffer outside of the jury’s presence, Majmudar pro-
vided the following testimony. She and Shyam had a
close relationship, becoming especially close when
Shyam lived with Majmudar’s family in Branford, Con-
necticut, for two years while Majmudar was in high
school. When Shyam visited Majmudar in Boston in
September, 2013, he told Majmudar that his family was
asking relatives for help posting bond for Niraj, and
asked whether he could borrow $50,000 from her. Maj-
mudar replied that she could not lend the money
because she needed it to help the defendant post bond
and pay attorney’s fees. Majmudar told Shyam that she
knew the defendant was innocent because he had been
with her in Boston when the crimes occurred. When
Shyam did not appear surprised by this revelation, Maj-
mudar asked him if he knew who had accompanied
Calabrese. After further probing, Shyam broke down in
tears and admitted that he and Calabrese were the ones
who had tried to rob Vitalis. Shyam then provided her
with an account of the incident, in which he stated that
he had fled the Vitalis home after Calabrese shot Vitalis
and later returned in a vehicle with Niraj to pick up
Calabrese. Majmudar asked Shyam whether Calabrese
had used the defendant’s cell phone during the rob-
bery.25 Shyam responded affirmatively and volunteered
that he had left his own cell phone at home. Majmudar
told Shyam that he needed to come forward and con-
fess, but Shyam said that he could not do that to his
parents, as they already faced the risk that Niraj would
be taken away from them.
The trial court asked Majmudar who she had told
about Shyam’s confession. She replied that she had told
only the defendant, after he was released on bond.
The court sustained the prosecutor’s objection to
the admission of the testimony pertaining to Shyam’s
confession. The court found that, in light of the totality
of the circumstances under which the statement was
purportedly made, the statement was untrustworthy
and particularly lacking in sufficient corroboration. The
court cited the following factors. The court pointed out
that the alleged confession was made thirteen months
after the crime and that Majmudar claimed to have
told no one except the defendant about the alleged
confession for more than three and one-half years after
the statement was made. It reasoned: ‘‘Both of these
delays provided her with years to learn the details of
the prosecution’s theory of the case and, if she wished
to do so, [to] fabricate the statement. . . . [B]oth the
delay in which the statement was supposedly made and
the time at which it was revealed, which was yesterday,
independently, and, when combined, weigh heavily
against the admissibility of the statement. The incrimi-
nating statements were, based on the evidence made
to date, made to only one person, [Majmudar]; that fact
weighs against admissibility. The concept that [Majmu-
dar] allegedly allowed her parents and her sister to
agonize over the emotional and financial burden of this
prosecution for the past three and [one-half] years, all
the while keeping to herself the supposed confession
that would have been of incalculable relief to them, is
incomprehensible and weighs against admissibility. The
nature of the relationship between [Majmudar] and
Shyam . . . weighs heavily against admissibility. The
witness is highly motivated to assist her brother, and,
even though there may be a strong relationship between
these two cousins, Shyam and [Majmudar] . . . Shyam
. . . had to know that [Majmudar’s] primary loyalty
would be to her brother. Unless Shyam . . . wanted
his confession to be open and known, he would never
have made it to one of the four people on this planet
who are most highly motivated above and beyond all
others to bring it to the attention of the authorities to
save their son, their sibling, from what they would have
believed to be a wrongful prosecution.’’
The court further reasoned that ‘‘[t]he details of the
statement . . . make it untrustworthy and even
bizarre.’’ The court questioned why Shyam would volun-
teer trivial details such as which vehicle he had driven,26
and found it ‘‘[e]specially suspect’’ that Majmudar asked
Shyam if Calabrese used the defendant’s phone during
the robbery. See footnote 26 of this opinion. The court
noted that there was no evidence explaining how Maj-
mudar would have known that phones played any role
in the robbery—‘‘for all she knew, the plan was hatched
by coconspirators in a bar, immediately carried out
and no phones were used at all.’’ The court found it
nonsensical that, if Calabrese and Shyam decided not
to use their own phones during the robbery, they would
use the phone of someone with whom they are associ-
ated or related, instead of untraceable phones.
The court also pointed out that evidence demon-
strated that ‘‘Vitalis had significant contacts and deal-
ings with Niraj . . . and Shyam . . . which explains
. . . at least in part, why Niraj . . . and Shyam . . .
did not enter that home, because . . . despite masks,
through their voices in the prior context, it would have
been readily recognized, and that would explain why
Niraj . . . solicited others who [did] not have contact
with . . . Vitalis to carry out the robbery. . . . [T]hat
evidence alone points more to . . . Calabrese and this
defendant than it does to Shyam . . . having been the
person to enter the Vitalis home. The circumstances
surrounding the event are far more consistent with [the]
defendant entering the Vitalis’ home than Shyam . . .
entering that home.’’
The Appellate Court agreed that Shyam’s statement
‘‘was against [his] penal interest to a significant extent,
such that this factor weighs in favor of a finding of
trustworthiness,’’ but concluded that the trial court had
not abused its discretion in concluding that the remaining
factors clearly weighed against such a finding. State v.
Patel, supra, 194 Conn. App. 280, 283. We agree that the
trial court’s exclusion of the statement was not an abuse
of discretion.27
The defendant’s arguments for the admission of the
statement are unpersuasive. He suggests that, with
regard to the temporal factor, it is more important that
Shyam’s confession was made shortly after the arrests
in connection with the Sharon home invasion than the
fact that it was made more than one year after the
incident. The defendant cites no case law supporting
this proposition, and this proposition is contradicted
by the rationale for the temporal factor—that a lapse
of time following the crime provides a declarant with
opportunity for reflection and contrivance. See State v.
Pierre, supra, 277 Conn. 70. The defendant’s emphasis
on the close relationship between the cousins, Majmu-
dar and Shyam, and on the case law recognizing that
a blood relationship may be one of trust; see, e.g., State
v. Rivera, supra, 268 Conn. 369; misses the point. The
trial court reasonably pointed to the stronger relation-
ship between the defendant and his sister, and her loy-
alty to him over Shyam.
Most of the evidence that the defendant characterizes
as corroborative indicates only that Shyam may have
played some role in connection with the incident, not
that Shyam was present in the Vitalis home.28 We pre-
viously have emphasized that ‘‘[t]he corroboration
requirement for the admission of a [third-party] state-
ment against penal interest is significant and goes beyond
minimal corroboration.’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Lopez, supra, 254
Conn. 319. The only evidence that could corroborate
Shyam’s presence at the Vitalis home invasion is one
of the several statements given by Vitalis’ mother to
the police about the incident. In January, 2016, more
than three years after the incident, Rita Vitalis told the
police that she believed that one of the masked intrud-
ers was an Indian male and believed that this person
was Shyam. She knew Niraj and Shyam but not the
defendant. In other statements, however, she reported
that she believed that both of the intruders were white,
that they could be Hispanic, or that she did not know
who either intruder was with certainty. The trial court,
therefore, reasonably concluded that Shyam’s state-
ment was not sufficiently trustworthy to be admitted
as a statement against penal interest.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The defendant also was convicted of felony murder in violation of General
Statutes § 53a-54c and conspiracy to commit robbery in the first degree in
violation of §§ 53a-134 (a) (2) and 53a-48. The trial court vacated his convic-
tions on those charges to avoid double jeopardy concerns.
2
‘‘A dual inculpatory statement is a statement that inculpates both the
declarant and a third party, in this case the defendant.’’ (Internal quotation
marks omitted.) State v. Camacho, 282 Conn. 328, 359, 924 A.2d 99, cert.
denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007).
3
The holiday, Raksha Bhandana, which celebrates the bond between a
brother and sister, or other close male/female relationships, fell on August
2, 2012. The director of Hindu life at Yale University confirmed the holiday’s
significance and that, although the preferred way to celebrate is in each
other’s presence, there is flexibility in both the manner and timing of the
holiday’s observance. Cell phone records established that Majmudar and
the defendant had a thirty-seven minute phone call on August 2, 2012, and
no phone contact on August 6, 2012.
4
In the recorded exchange on September 4, 2013, Calabrese told Early
that the police had questioned him about the incident after they reviewed
cell phone records for Vitalis, which eventually led them to information
about Calabrese’s cell phone. The trial court credited Early’s testimony that,
on the evening of September 3, 2013, Calabrese initiated the topic of the
Sharon home invasion.
5
It is unclear from the record whether Early was told where the incident
took place, or how the matter of interest was described to Early.
6
Although several of this court’s decisions address the evidentiary issue
first; see, e.g., State v. Simpson, 286 Conn. 634, 650–51, 945 A.2d 449 (2008);
State v. Camacho, supra, 282 Conn. 362–63; State v. Kirby, 280 Conn. 361,
373–78, 908 A.2d 506 (2006); those cases appear to rely on the jurisprudential
policy of constitutional avoidance, which directs courts to decide a case
on a nonconstitutional basis if one is available, rather than unnecessarily
deciding a constitutional issue. See, e.g., State v. Cameron M., 307 Conn.
504, 516 n.16, 55 A.3d 272 (2012) (overruled in part on other grounds by
State v. Elson, 311 Conn. 726, 728 n.14, 754, 91 A.3d 862 (2014)), cert. denied,
569 U.S. 1005, 133 S. Ct. 2744, 186 L. Ed. 2d 194 (2013); State v. McCahill,
261 Conn. 492, 501, 811 A.2d 667 (2002). This policy is inapplicable, however,
to cases in which a defendant raises the constitutional claim based on his
right to confrontation. Resolution of the evidentiary claim would not obviate
the need to address the constitutional issue because, even if the statement
is inadmissible under the hearsay exception relied on, the state would be
free on retrial to seek admission of the same statement on a different
evidentiary basis. The constitutional issue, therefore, is the appropriate
starting point.
7
See also State v. Sinclair, 332 Conn. 204, 218–25, 210 A.3d 509 (2019);
State v. Slater, 285 Conn. 162, 169–74, 939 A.2d 1105, cert. denied, 553 U.S.
1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008); State v. Kirby, supra, 280
Conn. 378–83.
8
We are aware of only two cases to the contrary. In Cazares v. State,
Docket No. 08-15-00266-CR, 2017 WL 3498483, *10 (Tex. App. August 16,
2017, review refused), cert. denied, U.S. , 139 S. Ct. 422, 202 L. Ed.
2d 324 (2018), the court deemed the informant’s purpose, which was
unknown to the declarant, to be dispositive. In People v. Redeaux, 355 Ill.
App. 3d 302, 823 N.E.2d 268, cert. denied, 215 Ill. 2d 613, 833 N.E.2d 7 (2005),
the court took a narrower approach. It suggested that a coconspirator’s
statements to an undercover officer could be testimonial if elicited pursuant
to an ‘‘interrogation,’’ meaning formal, structured questioning. (Internal quo-
tation marks omitted.) Id., 306–307. The court in Redeaux ultimately con-
cluded that the conversation at issue did not come close to such questioning,
pointing to the facts that its purpose was to facilitate a drug transaction,
not ‘‘a subterfuge to gain information about this or some other crime,’’ and
that the undercover officer never asked the coconspirator, a drug dealer,
to name his ‘‘source,’’ i.e., the defendant. (Internal quotation marks omitted.)
Id., 306.
Before and shortly after Crawford was decided, a few commentators had
advocated for a de facto interrogation approach but limited that term to
circumstances in which there was sustained questioning, leading questions,
or suggestions made with a preconceived notion of the evidence that the
agent or informant wanted to obtain. See M. Berger, ‘‘The Deconstitutionali-
zation of the Confrontation Clause: A Proposal for a Prosecutorial Restraint
Model,’’ 76 Minn. L. Rev. 557, 608–609 (1992); M. Seigel & D. Weisman, ‘‘The
Admissibility of Co-Conspirator Statements in a Post-Crawford World,’’ 34
Fla. St. U. L. Rev. 877, 903–904 (2007). Courts have rejected a ‘‘de facto’’
interrogation theory in the context of jailhouse informants acting as agents
for the police on the grounds that this circumstance is not an interrogation
and would not yield a testimonial statement, even if it could be broadly
characterized as an interrogation. See, e.g., United States v. Smalls, supra,605 F.3d 779 (‘‘[C]asual questioning by a fellow inmate does not equate to
police interrogation, even though the government coordinated the placement
of the fellow inmate and encouraged him to question [the defendant’s accom-
plice]. But whether we properly may label [the confidential informant’s]
encounter with [the defendant’s accomplice] as an interrogation in some
remote sense is beside the point because Davis establishes that not every
statement made in response to an interrogation is testimonial. Rather, only in
some instances does interrogation tend to generate testimonial responses.’’
(Emphasis omitted; internal quotation marks omitted.)). But see id., 788(Kelly, J., dissenting) (arguing that history supports confrontation analysis
based on declarant with full knowledge of facts, including true identity and
purpose of person eliciting information). We explain subsequently in this
opinion why both Cazares and Redeaux are contrary to the United States
Supreme Court’s most recent case law.
9
The court in Clark also observed that its decision was bolstered by the
age of the child: ‘‘Statements by very young children will rarely, if ever,
implicate the [c]onfrontation [c]lause. Few preschool students understand
the details of our criminal justice system. Rather, [r]esearch on children’s
understanding of the legal system finds that young children have little under-
standing of prosecution. . . . Thus, it is extremely unlikely that a [three
year old] child in [this child’s] position would intend his statements to be
a substitute for trial testimony.’’ (Citation omitted; emphasis added; internal
quotation marks omitted.) Ohio v. Clark, supra, 576 U.S. 247–48.
10
Hammon involved statements given by a domestic violence victim to
the police, after being isolated from her abusive husband, which were memo-
rialized in a ‘‘battery affidavit.’’ (Internal quotation marks omitted.) Davis
v. Washington, supra, 574 U.S. 820. The court held that the statements in
Hammon were testimonial. Id., 830.
11
The court in Clark rejected the defendant’s reliance on the state’s manda-
tory reporting obligation as a basis to equate the child’s teachers with the
police and their questions with an official interrogation. See Ohio v. Clark,
supra, 576 U.S. 249. The court observed that ‘‘mandatory reporting statutes
alone cannot convert a conversation between a concerned teacher and her
student into a law enforcement mission aimed primarily at gathering evi-
dence for a prosecution.’’ Id.12
The defendant makes much of the fact that the statements in Dutton
and Bourjaily were admitted under the hearsay exception for statements
by a coconspirator—historically viewed as inherently reliable—whereas
Calabrese’s statement was admitted under the exception for statements
against penal interest—historically viewed as presumptively unreliable when
used to inculpate a codefendant. Even if we were to accept the defendant’s
characterization; see United States v. Inadi, 475 U.S. 387, 400, 106 S. Ct.
1121, 89 L. Ed. 2d 390 (1986) (recognizing that Dutton involved state cocon-
spirator rule that admitted broader category of statements than did federal
coconspirator rule); the distinction he draws is immaterial. Bryant would
compel us to reach the same result even in the absence of this dictum.
Moreover, the distinction between the hearsay exceptions has no relevance
under Crawford’s testimonial analytical framework, which abandoned the
traditional evidentiary analytical approach, a reliability focused inquiry. See,
e.g., State v. Rivera, 268 Conn. 351, 365 n.13, 844 A.2d 191 (2004) (‘‘[b]ecause
the United States Supreme Court [in Crawford] has characterized [the]
statement [in Dutton] as nontestimonial . . . it would follow that the state-
ment [against penal interest to a fellow inmate] . . . is also nontestimo-
nial’’).
13
There are examples of courts relying on their respective state constitu-
tions to fill gaps in the United States Supreme Court’s testimonial framework,
at least until the court does so itself. See, e.g., State v. Scanlan, 193 Wn.
2d 753, 766, 445 P.3d 960 (2019) (concluding that Washington case law
articulating comprehensive definition of ‘‘testimonial’’ statements and spe-
cific test for applying that definition to statements to nongovernmental
witnesses under Washington constitution due to gap in federal jurisprudence
was superseded by subsequent decision of United States Supreme Court
applying its primary purpose test to statements to nongovernmental wit-
nesses), cert. denied, U.S. , 140 S. Ct. 834, 205 L. Ed. 2d 483 (2020);
see also State v. Rodriguez, supra, 337 Conn. 226–27 (Kahn, J., concurring)
(filling gap regarding admissibility of forensic evidence with its own test
under federal constitution); People v. John, 27 N.Y.3d 294, 312–15, 52 N.E.3d
1114, 33 N.Y.S.3d 88 (2016) (filling gap regarding admissibility of forensic
scientific laboratory reports).
14
Although this court indicated that the federal and state provisions are
subject to the same interpretation because of their ‘‘shared genesis in the
common law’’; State v. Lockhart, supra, 298 Conn. 555; it is important to
acknowledge that we have never undertaken an independent examination
of the circumstances surrounding the adoption of the federal confrontation
clause. This acknowledgement is important because examinations of those
circumstances by courts and scholars have not yielded a consensus as to
what historical facts matter and what these facts reveal about the intended
meaning and application of the confrontation clause.
This inconsistency is reflected in the court’s case law; see, e.g., Crawford
v. Washington, supra, 541 U.S. 60–64 (determining that court’s previous
interpretation of confrontation clause in Roberts was wholly incompatible
with historical basis for adoption of confrontation clause); as well as in
scholarship that, in turn, criticizes Crawford’s own historical account. See,
e.g., K. Graham, ‘‘Confrontation Stories: Raleigh on the Mayflower,’’ 3 Ohio
St. J. Crim. L. 209, 209 (2005) (‘‘Justice Scalia’s majority opinion [in Crawford]
tells a version of the history of the [c]onfrontation [c]lause that would do
Hollywood proud’’); B. Trachtenberg, ‘‘Confronting Coventurers: Coconspir-
ator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation
Clause,’’ 64 Fla. L. Rev. 1669, 1677–78 (2012) (citing sources).
The lack of consensus as to which historical facts motivated the adoption
of the confrontation clause and how the clause applies to present circum-
stances seems to be a product of several factors. No court or scholar has
concluded that the confrontation clause is unambiguous and can be interpre-
ted literally. See State v. Torello, 103 Conn. 511, 513, 131 A. 429 (1925)
(‘‘[interpreted] [l]iterally it would prohibit the introduction of the testimony
of any witness who was not produced in court’’); M. Larkin, ‘‘The Right of
Confrontation: What Next?,’’ 1 Tex. Tech L. Rev. 67, 67 (1969) (‘‘[t]he precise
source of this use of the word ‘confront’ is obscure’’). Ascertaining original
intent in the absence of a plain textual meaning is complicated by the lack
of any meaningful debate during the drafting and ratification of the federal
confrontation clause. See H. Gutman, ‘‘Academic Determinism: The Division
of the Bill of Rights,’’ 54 S. Cal. L. Rev. 295, 332 n.181 (1981) (debate on
confrontation clause lasted five minutes); R. Mosteller, ‘‘Remaking Confron-
tation Clause and Hearsay Doctrine Under the Challenge of Child Sexual
Abuse Prosecutions’’, 1993 U. Ill. L. Rev. 691, 737 (‘‘Enough of the historical
materials surrounding the drafting and the ratification debates survives that
we can be relatively confident that no precise meaning was ascribed to the
[c]onfrontation [c]lause in either process. Indeed, the clause received only
limited attention.’’ (Footnote omitted.)). Case law is of marginal help in
ascertaining original intent because criminal cases largely were tried in
state courts at the time of the framing and the sixth amendment right of
confrontation was not extended to the states until 1965. See R. Friedman,
‘‘Crawford, Davis and Way Beyond,’’ 15 J.L. & Policy 553, 553 (2007); K.
Graham, supra, 3 Ohio St. J. Crim. L. 210.
In addition, application of the confrontation clause has been complicated
by significant historical developments that could not have been foreseen
by the framers. Crimes are investigated and prosecuted differently than at
the time of the framing. See M. Mannheimer, ‘‘Toward a Unified Theory of
Testimonial Evidence Under the Fifth and Sixth Amendments,’’ 80 Temp. L.
Rev. 1135, 1164 (2007) (‘‘professional police now replicate the investigatory
function of the magistrate’’); E. Schaerer, ‘‘Proving the Constitution: Burdens
of Proof and the Confrontation Clause,’’ 55 U. Rich. L. Rev. 491, 494–95
(2021) (noting that, at time of framing, police generally did not initiate
investigations on their own based on suspicion of probable crime, and
prosecution typically was initiated by crime victims and their families); M.
Seigel & D. Weisman, ‘‘The Admissibility of Co-Conspirator Statements in
a Post-Crawford World,’’ 34 Fla. St. U. L. Rev. 877, 906–907 (2007) (‘‘[i]n
the [f]ramers’ day, there was essentially no such thing as an undercover
investigation; indeed, organized, professional police forces did not come
onto the scene until around the Civil War’’ (footnote omitted)). Hearsay
exceptions have been expanded significantly; see E. Schaerer, supra, 494–95;
and new forms of evidence, e.g., forensic evidence, have developed. See D.
Noll, ‘‘Constitutional Evasion and the Confrontation Puzzle,’’ 56 B.C. L. Rev.
1899, 1904 (2015).
The defendant advances no argument about the significance of any of
these factors, other than the lack of a historical hearsay exception for
statements against penal interest, which we address subsequently in this
opinion. We acknowledge these factors to make clear that Gaetano does
not foreclose an argument that the federal courts have misinterpreted the
confrontation clause or that the development of our common law may
support an independent interpretation in a different context.
15
In the section of his brief devoted to historical insights and Connecticut
precedent, the defendant cites authority for propositions that he also does
not connect to the principal question before us—whether our state has ever
been more protective of confrontation rights than the federal system or
standard—and that do not lend support to the specific testimonial standard
that he advances. These authorities state the following propositions: Con-
necticut has long recognized the importance of cross-examination; see, e.g., 2
H. Dutton, A Revision of Swift’s Digest of the Laws of the State of Connecticut
(1862) c. XX, § 411, p. 437; and special sensitivity to confrontation clause
concerns is appropriate when the testimony of a witness is critical to the
state’s case against the defendant and the consequences of a conviction
based on the absent witness’ testimony are grave. See, e.g., State v. Lebrick,
334 Conn. 492, 507, 512, 223 A.3d 333 (2020) (stating these principles in
connection with question of whether state made reasonable efforts to locate
witness who purportedly was unavailable to testify, to satisfy federal con-
frontation clause).
The defendant also cites to one scholarly article in which the author
asserts that the testimonial nature of the statement should be established
from the perspective of either the speaker or the listener. See M. Pardo,
‘‘Confrontation After Scalia and Kennedy,’’ 70 Ala. L. Rev. 757, 782 (2019).
The author of this article offers no historical analysis to support this standard
and acknowledges doctrinal difficulties in applying it. See id., 782 n.180.
Many other commentators reject the defendant’s view. See, e.g., M. Mann-
heimer, supra, 80 Temp. L. Rev. 1192; W. Reed, ‘‘Michigan v. Bryant: Origi-
nalism Confronts Pragmatism,’’ 89 Denv. L. Rev. 269, 300–302 (2011).
16
Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d
476 (1968).
17
The defendant’s brief has a fourth policy section, from which we have
difficulty gleaning a specific policy argument. The defendant asserts that
one or more of the participants in the planning and execution of Calabrese’s
‘‘interrogation’’ should have known that the recorded statement would be
admissible at trial if Calabrese was unavailable to testify, that the sequence
of codefendants’ trials can affect their availability for cross-examination,
and that sequence is a matter of prosecutorial discretion.
There are several flaws in these assumptions. There is no evidence that
the police knew that Calabrese was the shooter when they asked Early to
record him. Had Calabrese offered an account identifying someone else as
the shooter, it is possible that the state would have attempted to use the
statement to extract a plea agreement in exchange for Calabrese’s testimony
against the shooter. Even if Calabrese had been tried first after admitting
to being the shooter, there is a strong possibility that he still would have
been unavailable to testify at the defendant’s subsequent trial. Calabrese’s
fifth amendment privilege would continue during any pending appeal; see,
e.g., United States v. Kennedy, 372 F.3d 686, 691 (4th Cir. 2004), cert. denied,
543 U.S. 1123, 125 S. Ct. 1019, 160 L. Ed. 2d 1073 (2005); as well as during any
possible retrial should he prevail on appeal. We also note that circumstances
outside of the state’s control (e.g., discovery, availability of witnesses, etc.)
may dictate the sequence of codefendants’ trials. If a rare case arose in
which there was evidence that the state intentionally delayed the declarant’s
trial so as to ensure the declarant’s unavailability for cross-examination,
the defendant may have a viable due process claim or argument for the
adoption of an equitable rule akin to the forfeiture doctrine, which bars a
defendant from objecting to the admission of hearsay statements of a witness
whose absence has been procured by the defendant. See T. Lininger, ‘‘Recon-
ceptualizing Confrontation After Davis,’’ 85 Tex. L. Rev. 271, 300–301 and
nn.165–68 (2006) (discussing forfeiture doctrine). We have no occasion to
consider either possibility in the present case.
18
We underscore that we do not intend for this decision to foreclose
the possibility of departing from the federal courts’ interpretation of the
confrontation clause in another context. We are mindful of two concerns
that are not implicated in the present case that may, in the future, weigh
in favor of an independent course of action. First, there are indications in
opinions of various United States Supreme Court justices that the court
may adopt more limiting principles than those articulated in Crawford and
Davis. See, e.g., Williams v. Illinois, 567 U.S. 50, 58–59, 132 S. Ct. 2221,
183 L. Ed. 2d 89 (2012) (plurality opinion); see also Ohio v. Clark, supra,576 U.S. 254 (Thomas, J. concurring). Second, courts are increasingly con-
fronting circumstances in which they are unsure how to assess whether a
statement is testimonial. See K. McMunigal, ‘‘Crawford, Confrontation, and
Mental States,’’ 64 Syracuse L. Rev. 219, 220 (2014) (observing that commen-
tators have described contemporary confrontation clause jurisprudence as
‘‘ ‘incoherent,’ ‘uncertain,’ ‘unpredictable,’ ‘a train wreck,’ suffering from
‘vagueness’ and ‘[doublespeak],’ and, simply put, a ‘mess’ ’’ (footnotes omit-
ted)). This problem is particularly acute in cases in which forensic evidence
is at issue. See, e.g., State v. Rodriguez, supra, 337 Conn. 203–204 (Kahn,
J., concurring). Even some of the court’s justices have complained about
the lack of clear direction from the court. See id., 204 (citing cases from
various courts raising this concern). Justice Gorsuch, joined by Justice
Sotomayor, stated in a recent dissent from the court’s denial of certiorari
in a confrontation clause case: ‘‘Respectfully, I believe we owe lower courts
struggling to abide our holdings more clarity than we have afforded them
in this area. Williams imposes on courts with crowded dockets the job of
trying to distill holdings on two separate and important issues from four
competing opinions. The errors here may be manifest, but they are under-
standable and they affect courts across the country in cases that regularly
recur.’’ Stuart v. Alabama, U.S. , 139 S. Ct. 36, 37, 202 L. Ed. 2d 414(2018) (Gorsuch, J., dissenting from the denial of certiorari). As applied
to the facts of the present case, however, the current standard yields a
clear result.
19
The police affidavit in support of the defendant’s arrest warrant reflects
that, many months before Calabrese gave the surreptitiously recorded state-
ment, he had given several statements to the police about the Sharon home
invasion. Calabrese was approached by the police because of cell phone
records connecting him to Niraj. Calabrese provided a statement to the
police at that time and later provided additional statements through his
attorney. Calabrese initially claimed to have learned about the home invasion
only after the fact but later admitted that he was present when Niraj
announced the plan. In all of the statements, however, Calabrese disavowed
any participation and claimed that the defendant and an unknown third
party were the perpetrators.
20
The fact that Early was recording Calabrese in their prison cell at the
behest of law enforcement would not implicate either Calabrese’s Miranda
rights under the fifth amendment to the United States constitution; see
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966);
because courts do not consider this situation to be a ‘‘custodial interroga-
tion’’; (internal quotation marks omitted) Illinois v. Perkins, 496 U.S. 292,
296–98, 110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990); or his right to counsel
under the sixth and fourteenth amendments to the United States constitution,
because that right is offense specific and is limited to charged offenses or
uncharged offenses that are directly connected to the charged offense. See
id., 299; United States v. Basciano, 634 Fed. Appx. 832, 836 (2d Cir. 2015),
cert. denied, U.S. , 136 S. Ct. 2529, 195 L. Ed. 2d 859 (2016). But use
of this tactic in other factual scenarios may cross a constitutional line. For
example, if Calabrese had been charged in connection with the Sharon
home invasion and invoked his right to counsel, the police could not have
surreptitiously questioned him through an agent or undercover operative.
See, e.g., Massiah v. United States, 377 U.S. 201, 205–206, 84 S. Ct. 1199,
12 L. Ed. 2d 246 (1964) (‘‘Any secret interrogation of the defendant, from
and after the finding of the indictment, without the protection afforded by
the presence of counsel, contravenes the basic dictates of fairness in the
conduct of criminal causes and the fundamental rights of persons charged
with [a] crime. . . . [I]f such a rule is to have any efficacy it must apply
to indirect and surreptitious interrogations as well as those conducted in the
jailhouse.’’ (Citations omitted; footnotes omitted; internal quotation marks
omitted.)). Although Calabrese clearly was a suspect in the Sharon home
invasion when Early recorded Calabrese’s statements; see footnote 19 of
this opinion; there is no claim that there was probable cause to arrest
Calabrese in connection with that incident at that time and that a decision
was made to delay arrest to circumvent Calabrese’s right to counsel.
21
The trial court properly raised these concerns at the hearing on the
motion in limine in Niraj’s trial; its ruling in that case was deemed the law
of the case for the defendant’s identical motion: ‘‘It does, in my mind, create
an issue as to whether the recording is testimonial, and that’s an issue that
really can only be resolved, I believe, with an understanding of what led
up to the recording. Who initiated the conversation? My understanding
is the topic first came up the day before the recording. What were the
circumstances under which, after that conversation, the cooperating individ-
ual agreed to record a conversation? What happened on the morning of the
conversation before it took place? What interaction did that individual have
with law enforcement? Certainly, I believe all that is relevant to a Crawford
analysis.’’ Neither Niraj nor the defendant called the corrections officials
or law enforcement officials who spoke with Early to testify at the hearing
on the motion in limine. We note, however, that nothing that Early stated
in his conversation with Calabrese suggested any personal knowledge about
the facts of the crime.
22
It is unclear what the trial court meant when it stated that ‘‘Early was
facing serious charges.’’ When Calabrese’s statement was elicited, Early had
already been convicted of attempted burglary in the first degree with a
deadly weapon and criminal possession of a firearm.
23
It is immaterial whether Calabrese subjectively, but incorrectly, assumed
that he would be less culpable if it was believed that he killed Vitalis in
self-defense. ‘‘Whether a statement is against a declarant’s penal interests is
an objective inquiry of law, rather than a subjective analysis of the declarant’s
personal legal knowledge.’’ State v. Camacho, supra, 282 Conn. 359.
24
The state contends that the trial court also properly excluded Shyam’s
purported confession on the ground that the defendant failed to establish
Shyam’s unavailability, a precondition for the admission of a statement
against penal interest. See Conn. Code Evid. § 8-6 (4). Although there were
several exchanges between defense counsel and the court on this issue, it
is not entirely clear whether the trial court conclusively determined that
the defendant had failed to meet this condition. Like the Appellate Court,
we conclude that it is unnecessary to address Shyam’s availability in light
of our conclusion that the trial court did not abuse its discretion in determin-
ing that Shyam’s statement was not trustworthy. See State v. Patel, supra,
194 Conn. App. 279 n.19.
25
Evidence was presented at trial regarding the movement of cell phones
associated with Niraj, Calabrese, and the defendant on August 6, 2012, which
placed those phones near the crime scene and often in contact with one
another. See State v. Patel, supra, 194 Conn. App. 285–86. The cell phone
associated with the defendant accessed the cell tower located between
seven and eight miles from the crime scene for a series of phone calls prior
to 6:04 p.m. See id., 286–87. There were no outgoing calls or messages from
the cell phone associated with the defendant after 6:04 p.m. on August 6,
2012, which, the state’s expert observed, ‘‘indicated ‘either that the phone
was off or that it was . . . in an area where it could not receive any cell
signal,’ or that ‘something could have happened to the phone that rendered
it unable’ to receive a [cell] signal.’’ Id., 286. On August 6, 2012, Shyam’s
phone was used to make several phone calls through a device in his home
in Warren.
26
According to Majmudar, Shyam said that he and Niraj had driven ‘‘the
Pathfinder’’ back to the woods to find Calabrese. Shyam’s family owns a
white Pathfinder. Majmudar testified that, when she questioned Shyam as
to why the police had seized her parents’ two black sport utility vehicles
(SUVs), Shyam said that they had used ‘‘the black Saab SUV from New York’’
during the robbery. From the defendant’s perspective, these statements
identifying the vehicles provide two benefits. The report of the use of the
black Saab explains a witness’ report of seeing Niraj driving a vehicle fitting
the description of the defendant’s black Honda CRV about five miles away
from Vitalis’ home, when no such vehicle was registered to Niraj or to
Niraj’s family. The report of the use of the Pathfinder, after the murder was
committed, in conjunction with evidence that Shyam had access to that
vehicle on August 6, 2012, and that the Pathfinder was thoroughly cleaned
in the weeks before the police seized it in mid-September, 2013, provides
potential physical evidence connecting Shyam to the crime.
27
We observe that several statements made by the trial court in connection
with its ruling could be interpreted as comments explaining why Majmudar’s
testimony lacked credibility. ‘‘We previously have concluded . . . that a
trial court may not consider the credibility of the testifying witness in
determining the trustworthiness of a declaration against penal interest.’’
State v. Rivera, supra, 268 Conn. 372; see also 2 R. Mosteller, supra, § 319,
p. 575 (‘‘The federal courts have disagreed on whether the corroboration
requirement applies to the veracity of the in-court witness testifying that
the statement was made in addition to the clearly required showing that
the statement itself is trustworthy. As a matter of standard hearsay analysis,
the credibility of the in-court witness regarding the fact that the statement
was made is not an appropriate inquiry.’’ (Footnote omitted.)). The defendant
did not challenge the trial court’s ruling on this basis. Even if the trial
court had improperly rested its decision in part on Majmudar’s credibility,
however, the reasons articulated by the trial court illustrate why a jury
would have been highly unlikely to credit her testimony, and any potential
error in excluding Shyam’s purported confession would have been harmless.
28
‘‘There was evidence at trial that Shyam sent the following text messages
to Niraj at 8:13 p.m. on August 6, 2012: ‘U want me to come to the station
in [P]athfinder?’; ‘?’; ‘Lemme know . . . I got keys.’ A white Pathfinder,
registered at the home Shyam shared with his parents and, occasionally,
Niraj, was seized by [the] police. The vehicle smelled clean and seemingly
had new floor mats. A receipt dated August 31, 2012, at 10:40 a.m. from
Personal Touch Car Wash in New Milford was found in a bedroom at Shyam’s
home, and Shyam’s cell phone utilized two cell towers in the vicinity of the
car wash around the date and time printed on the receipt.’’ State v. Patel,
supra, 194 Conn. App. 282 n.22. ‘‘There was [also] evidence at trial that
there were Google searches conducted on Shyam’s computer for the terms
‘conspiracy to commit murder in Connecticut’ and ‘conspiracy to kill,’ along
with searches for penalties for those crimes.’’ Id., 282 n.23.