State v. Azevedo ( 2017 )

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STATE OF CONNECTICUT v. AMANDA AZEVEDO
(AC 38124)
Lavine, Kahn and Bishop, Js.
Syllabus
Convicted of the crimes of arson in the first degree, attempt to commit
insurance fraud, attempt to commit larceny in the first degree, conspir-
acy to commit arson in the first degree, conspiracy to commit insurance
fraud and conspiracy to commit larceny in the first degree in connection
with an arson that destroyed her home, the defendant appealed to this
court. She claimed, inter alia, that certain out-of-court statements that
D, her coconspirator, had made to an insurance company fire investiga-
tor and to two police officers, and certain testimony that D had given
in a deposition in a related civil action, should not have been admitted
into evidence because they constituted inadmissible hearsay and vio-
lated her sixth amendment right to confrontation. D had told the investi-
gator about the defendant’s actions and whereabouts on the morning
of the fire, and testified similarly in the deposition. After a memorial
service for the defendant’s late husband, D asked to speak to the police
officers privately and told them that the defendant was responsible for
setting her house on fire and how she set the fire, that he was present
while items were being removed from the defendant’s home prior to
the fire and that there was a video of the items being removed. The
trial court determined, on the basis of D’s deposition testimony and
statements to the investigator, that the state had established, by a fair
preponderance of the evidence, the existence of a conspiracy between
D and the defendant, and, therefore, that D’s deposition testimony and
statements to the investigator were admissible under § 8-3 (1) (D) of
the Connecticut Code of Evidence as statements of a coconspirator in
furtherance of a conspiracy. The trial court further determined that
D’s statements to the police officers inculpated both himself and the
defendant, and, thus, were admissible as dual inculpatory statements
under § 8-6 (4) of the Connecticut Code of Evidence. Held:
1. The defendant could not prevail on her claim that the trial court improperly
admitted into evidence D’s deposition testimony and statements to the
investigator as statements of a coconspirator in furtherance of a conspir-
acy under § 8-3 (1) (D) of the Connecticut Code of Evidence: although
that court admitted D’s statements and deposition testimony for their
substantive use, the statements were not admitted to prove their con-
tents but, rather, were admitted as verbal acts in furtherance of a conspir-
acy, and, therefore, because the statements and testimony were not
testimonial in nature, the defendant’s right of confrontation was not
implicated; moreover, in light of the extrinsic evidence of the conspiracy
presented by the state, which included evidence of discrepancies con-
cerning the defendant’s activities and whereabouts on the morning of
the fire, and showing D’s presence at the defendant’s home days prior
to the fire when the defendant’s belongings were removed from the
home and that D wanted the defendant’s husband to receive the insur-
ance proceeds from the fire, it was not clearly erroneous for the trial
court to conclude that the state had proven the existence of a conspiracy
between D and the defendant by a fair preponderance of the evidence
so as to permit the jury to consider D’s deposition testimony and state-
ments as evidence of the continuing conspiracy under § 8-3 (1) (D).
2. The trial court properly characterized D’s statements to the police officers
as dual inculpatory statements under § 8-6 (4) of the Connecticut Code
of Evidence: D’s statements to the police officers reasonably could
be characterized as inculpating both himself and the defendant, as D
reasonably understood that his statements were against his penal inter-
est in that they implicated him in the conspiracy to commit insurance
fraud, D was unavailable to testify at the defendant’s trial in that he
would have invoked his fifth amendment right against self-incrimination
had he been called to testify, and his statements presented sufficient
indicia of reliability; moreover, given the substantial amount of admissi-
ble evidence adduced at trial that supported the defendant’s conviction,
any possible error in the court’s admission of D’s statements to the
officers as dual inculpatory statements was harmless beyond a reason-
able doubt.
3. The record was inadequate to review the defendant’s unpreserved claim
that the state’s use of cell site location information pertaining to her
phone records violated her rights under article first, § 7, of the state
constitution; for the defendant to prevail on her claim, she had to demon-
strate that the state or an entity acting on behalf of the state obtained
the phone records, but the trial record was silent in that regard, as it
was unclear from the record who had issued the subpoena to obtain
the records, and, thus, the defendant could not establish that the claimed
violation of her constitutional rights was the result of state action.
Argued September 11—officially released December 19, 2017
Procedural History
Substitute information charging the defendant with
the crimes of arson in the first degree, attempt to com-
mit insurance fraud, attempt to commit larceny in the
first degree, conspiracy to commit arson in the first
degree, conspiracy to commit insurance fraud and con-
spiracy to commit larceny in the first degree, brought
to the Superior Court in the judicial district of Fairfield,
where the court, Blawie, J., denied the defendant’s
motion to preclude certain evidence; thereafter, the
matter was tried to the jury; verdict and judgment of
guilty, from which the defendant appealed to this court;
subsequently, the court, Blawie, J., issued an articula-
tion of its decision. Affirmed.
John R. Williams, for the appellant (defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were John C. Smriga,
state’s attorney, and Howard S. Stein, senior assistant
state’s attorney, for the appellee (state).
Opinion
BISHOP, J. The defendant, Amanda Azevedo, appeals
from the judgment of conviction, rendered after a jury
trial, of the following six counts: (1) arson in the first
degree in violation of General Statutes § 53a-111 (a)
(3); (2) attempt to commit insurance fraud in violation
of General Statutes §§ 53a-215 and 53a-49; (3) attempt
to commit larceny in the first degree in violation of
General Statutes §§ 53a-49, 53a-119 and 53a-122 (a) (2);
(4) conspiracy to commit arson in the first degree in
violation of General Statutes §§ 53a-48 and 53a-111 (a)
(3); (5) conspiracy to commit insurance fraud in viola-
tion of General Statutes §§ 53a-48 and 53a-215; and (6)
conspiracy to commit larceny in the first degree in
violation of General Statutes §§ 53a-48, 53a-119 and 53a-
122 (a) (2). On appeal, the defendant argues that (1)
out-of-court statements of a coconspirator that the trial
court admitted into evidence constituted inadmissible
hearsay and violated the confrontation clause of the
sixth amendment to the United States constitution, and
(2) that the state’s use of cell site location information
violated article first, § 7, of the constitution of Connecti-
cut. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On January 28, 2008, at approximately 9:50 a.m.,
the defendant’s neighbor called 911 to report a fire at
the defendant’s residence. The neighbor saw the flames
through a window in front of the defendant’s home. No
one was home at the time the neighbor called 911, and
the defendant was the last person to have been in the
house before the fire. The fire destroyed the defendant’s
home. After firefighters extinguished the flames, state
and local fire marshals began examining the circum-
stances of the fire, as well as the defendant’s behavior.
Lengthy police and insurance company investigations
ensued.
The police and insurance company investigations
revealed the following details of the defendant’s per-
sonal life and financial situation at the time of the fire.
The defendant was unemployed and her husband, Joao
Azevedo, owned a small flooring business, which was
the family’s sole source of income. Azevedo’s business
was failing, however, due to his opioid addiction. On
the day of the fire, the defendant’s husband was set to
be released from an inpatient treatment program for
his opioid addiction. At the time of the fire, the defen-
dant and her husband were making late payments to
various creditors and had trouble paying for necessities
such as home heating oil, health insurance, and property
insurance premiums. Additionally, the defendant and
her husband had federal and state tax liens of nearly
$145,000 filed against their home as a result of unpaid
income taxes. Two weeks prior to the fire, Norwalk
police arrested the defendant’s husband on a charge of
writing a bad check to a supplier for more than $25,000
worth of hardwood flooring.
On January 10, 2008, eighteen days prior to the fire,
the defendant called her local insurance agent to inquire
about the status and expiration date of her homeown-
er’s insurance policy. Although the defendant’s insur-
ance carrier had threatened cancellation due to late
payments, the policy was in effect on the date of the
fire. Additionally, days prior to the fire, the defendant
and coconspirator Diniz Depina removed items from
the defendant’s home such as furniture, jewelry, and
personal documents. After the fire, the defendant filed
a claim with her insurance company for payment of
$1,235,087.45 in losses caused by the fire.
Due to the suspicious circumstances surrounding the
fire, the defendant’s insurance company hired investiga-
tor Robert Corry, who conducted a detailed cause and
origin investigation. After completing his investigation,
Corry reached the conclusion that the fire at the defen-
dant’s home had been intentionally set.
On January 5, 2015, the state charged the defendant in
an amended information with arson in the first degree;
conspiracy to commit arson in the first degree; attempt
to commit insurance fraud; conspiracy to commit insur-
ance fraud; attempt to commit larceny in the first
degree; and conspiracy to commit larceny in the first
degree. On March 6, 2015, a jury found the defendant
guilty of all charges. On April 24, 2015, the court sen-
tenced the defendant to a total effective sentence of
ten years of imprisonment, execution suspended after
four years, and three years of probation. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
I
On appeal, the defendant argues that the admission
of certain statements made by Depina constituted inad-
missible hearsay and violated the confrontation clause
of the sixth amendment to the United States constitu-
tion. The statements at issue are Depina’s statements
to Corry; Depina’s deposition testimony, which echoes
his statements to Corry; and Depina’s statements to
Laura Azevedo Rasuk and Johanna Angelo, both of
whom are family friends and Bridgeport police officers.
The state responds that Depina’s statements to Corry
and Depina’s deposition testimony were admissible as
statements of a coconspirator in furtherance of a con-
spiracy under § 8-3 (1) (D) of the Connecticut Code
of Evidence. The state further argues, with respect to
Depina’s statements to Rasuk and Angelo, that the
defendant waived her right to claim a confrontation
clause violation under Crawford v. Washington, 541
U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and
that the statements were properly admitted as dual
inculpatory statements. We agree with the state.
‘‘The [c]onfrontation [c]lause . . . bars the admis-
sion of some evidence that would otherwise be admissi-
ble under an exception to the hearsay rule.’’ (Internal
quotation marks omitted.) State v. Camacho, 282 Conn.
328, 347–48, 924 A.2d 99, cert. denied, 552 U.S. 956, 128
S. Ct. 338, 169 L. Ed. 2d 273 (2007). ‘‘[W]hen faced
with the issue of the contested admission of hearsay
statements against the accused in a criminal trial, courts
first must determine whether the statement is testimo-
nial.’’ Id., 349. Although the Supreme Court declined to
define the term ‘‘testimonial,’’ it noted, however, that
‘‘[w]hatever else the term covers, it applies at a mini-
mum to prior testimony at a preliminary hearing, before
a grand jury, or at a formal trial; and to police interroga-
tions.’’ Crawford v. Washington, supra, 541 U.S. 68.
‘‘Various formulations of this core class of testimonial
statements exist: ex parte in-court testimony or its func-
tional equivalent—that is, material such as affidavits,
custodial examinations, prior testimony that the defen-
dant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to
use prosecutorially . . . .’’ (Citations omitted; empha-
sis omitted; internal quotation marks omitted.) Id.,
51–52.
Accordingly, even though the Supreme Court did not
establish a ‘‘comprehensive definition of testimonial, it
is clear that much of the [United States] Supreme
Court’s and our jurisprudence applying Crawford
largely has focused on the reasonable expectation of
the declarant that, under the circumstances, his or her
words later could be used for prosecutorial purposes.’’
(Internal quotation marks omitted.) State v. Slater, 285
Conn. 162, 172, 939 A.2d 1105, cert. denied, 553 U.S.
1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008). ‘‘[T]his
expectation must be reasonable under the circum-
stances and not some subjective or far-fetched, hypo-
thetical expectation that takes the reasoning in
Crawford and Davis [v. Washington, 547 U.S. 813, 126
S. Ct. 2266, 165 L. Ed. 2d 224 (2006)] to its logical
extreme.’’ (Emphasis in original.) State v. Slater,
supra, 175.
‘‘[T]he threshold inquiries that determine the nature
of the claim are whether the statement was hearsay,
and if so, whether the statement was testimonial in
nature, questions of law over which our review is ple-
nary.’’ State v. Smith, 289 Conn. 598, 618–19, 960 A.2d
993 (2008). ‘‘To the extent a trial court’s admission of
evidence is based on an interpretation of the [Connecti-
cut] Code of Evidence, our standard of review is ple-
nary. For example, whether a challenged statement
properly may be classified as hearsay and whether a
hearsay exception properly is identified are legal ques-
tions demanding plenary review. They require determi-
nations about which reasonable minds may not differ;
there is no judgment call by the trial court.’’ (Internal
quotation marks omitted.) State v. Miller, 121 Conn.
App. 775, 780, 998 A.2d 170, cert. denied, 298 Conn. 902,
3 A.3d 72 (2010).
A
Depina’s Statements to Corry and Depina’s
Deposition Testimony
We begin with the defendant’s argument that the
admission into evidence of Depina’s statements to
Corry and Depina’s deposition testimony violated the
defendant’s right to confrontation under the sixth
amendment to the United States constitution and were
improperly admitted under § 8-3 (1) (D) of the Connecti-
cut Code of Evidence as statements of a coconspirator
in furtherance of a conspiracy. We disagree.
The following additional facts and procedural history
are relevant in part to our decision. In the course of
his investigation on behalf of the defendant’s insurance
company, Corry interviewed Depina. Depina also gave
a deposition during the course of the civil litigation
stemming from the defendant’s insurance claim after
the fire. Depina told Corry, and testified in his deposi-
tion, that the defendant called him at approximately 9
a.m. on the morning of the fire. Depina testified that
the defendant then stopped by his house after visiting
her husband at Griffin Hospital, which was close to
Depina’s house. Depina told Corry that the defendant
was at his house because he was borrowing money
from her. He stated, as well, that the defendant had
stopped by to drop off money so he could purchase
food for a party the defendant was throwing to welcome
her husband home from the hospital. The defendant
remained at Depina’s residence for approximately fif-
teen minutes. The next communication between Depina
and the defendant occurred when she called him and
exclaimed that her house was on fire.
Initially, the trial court admitted Depina’s statements
to Corry for the limited purpose of showing only that
the statements were ‘‘in fact, made by Mr. Depina to this
witness, Mr. Corry.’’ The court gave the jury a limiting
instruction to that effect. Later, the court found from
the introduction of additional evidence, that the state
had established the existence of a conspiracy between
Depina and the defendant by a fair preponderance of the
evidence. On that basis, the court removed the limiting
instruction and admitted Depina’s statements to Corry
for their substantive use under § 8-3 (1) (D) of the Con-
necticut Code of Evidence. The court also admitted
Depina’s deposition transcript into evidence for its sub-
stantive use pursuant to the same section of the code.
In assessing the propriety of the court’s decision to
permit into evidence Depina’s statements to Corry and
Depina’s deposition testimony, we first must determine
whether the statements and deposition testimony were
testimonial in nature. This is a question of law over
which our review is plenary. See State v. Smith, supra,
289 Conn. 618–19. The defendant argues that both the
statements to Corry and the deposition testimony are
testimonial in nature. The state argues, on the other
hand, that the court properly admitted Depina’s state-
ments to Corry and deposition testimony as verbal acts
in furtherance of a conspiracy and that, because the
statements were not admitted for the truth of their
contents, they cannot be considered testimonial in
nature. We agree with the state.
‘‘In Connecticut, an out-of-court statement offered to
prove the truth of the matter asserted is hearsay. . . .
If such a statement is offered for a purpose other than
establishing the truth of the matters contained in the
statement, it is not hearsay.’’ (Citation omitted.) State
v. Esposito, 223 Conn. 299, 315, 613 A.2d 242 (1992).
‘‘[T]he matter asserted [is] the matter asserted by the
[statement], not the matter asserted by the proponent
of the evidence.’’ (Internal quotation marks omitted.)
Id. ‘‘If the state again introduces [a declarant’s] state-
ment for the nonhearsay purpose of simply proving that
it was made, the defendant’s right of confrontation will
not be implicated.’’ Id., 316. Even Crawford acknowl-
edged that, generally speaking, the admission of out-
of-court statements for purposes other than their truth,
such as statements in furtherance of a conspiracy, do
not raise confrontation clause issues. See Crawford v.
Washington, supra, 541 U.S. 56 (‘‘[m]ost of the hearsay
exceptions covered statements that by their nature
were not testimonial—for example . . . statements in
furtherance of a conspiracy’’); see also id., 60 n.9 (‘‘The
[c]lause does not bar admission of a statement so long
as the declarant is present at trial to defend or explain
it. [The (c)lause also does not bar the use of testimonial
statements for purposes other than establishing the
truth of the matter asserted. . . .]’’ [Citation omitted.]).
Section 8-3 of the Connecticut Code of Evidence pro-
vides in relevant part: ‘‘The following are not excluded
by the hearsay rule, even though the declarant is avail-
able as a witness . . . (1) . . . (D) a statement by a
coconspirator of a party while the conspiracy is ongoing
and in furtherance of a conspiracy . . . .’’ Before the
court can admit statements made in furtherance of a
conspiracy, the court must find the existence of a con-
spiracy by a fair preponderance of the evidence. See
State v. Camacho, supra, 282 Conn. 354. ‘‘[T]he evidence
will be construed in a way most favorable to sustaining
the preliminary determinations of the trial court; its
conclusions will not be disturbed on appeal unless
found to be clearly erroneous.’’ (Citation omitted.) Id.
The defendant contends that the court admitted Depi-
na’s statements to Corry and Depina’s deposition testi-
mony for the truth of their contents. The record belies
this claim, however. Although the court subsequently
admitted Depina’s statements to Corry and Depina’s
deposition testimony for their substantive use, the state-
ments were not admitted to prove their contents.
Rather, the state sought to admit these statements as
verbal acts. Indeed, the state expressly stated its posi-
tion that the statements were false, but that they evi-
denced a false interlocking alibi between the defendant
and Depina.1 Therefore, they were, in short, verbal acts
in furtherance of a conspiracy. The matters asserted
by the statements at issue here were that the defendant
had gone to Depina’s house to give him money after
visiting her husband in the hospital. The state’s position
was that these statements were false and were made
as part of a continuing conspiracy. Accordingly,
because the statements made in furtherance of the con-
spiracy were not admitted for the truth of the matters
asserted therein, the defendant’s claim under the con-
frontation clause of the sixth amendment to the United
States constitution must fail with respect to Depina’s
statements to Corry and his deposition testimony. See
State v. Carpenter, 275 Conn. 785, 821, 882 A.2d 604
(2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164
L. Ed. 2d 309 (2006); see also State v. Foster, 293 Conn.
327, 334–35, 977 A.2d 199 (2009) (concluding that Craw-
ford not violated because trial court admitted state-
ments for purpose other than for truth of matter
asserted, and, therefore, statements were not inadmissi-
ble either on hearsay grounds or pursuant to rule in
Crawford).
Additionally, at the time the court admitted Depina’s
statements to Corry and Depina’s deposition testimony,
the court had heard extrinsic evidence of the conspir-
acy. Thus, it was not clearly erroneous for the court to
conclude that the state had proven the existence of a
conspiracy between the defendant and Depina by a fair
preponderance of the evidence, so as to then permit
the jury to consider Depina’s statements to Corry and
deposition testimony as evidence of the continuing con-
spiracy. The extrinsic evidence that the state presented
to demonstrate the existence of the conspiracy included
a transcript of the defendant’s interview with Corry, in
which she detailed her activities on the morning of the
fire. The state also produced the defendant’s cell phone
records, which contradicted the timing and locations
that the defendant described in her interview with
Corry. In addition, the state produced Depina’s cell
phone records, which contradicted the timing he
described in his interview with Corry and in his deposi-
tion regarding his communications with the defendant
on the morning of the fire. The court also heard testi-
mony regarding Depina’s presence at the defendant’s
home days prior to the fire when the defendant’s belong-
ings were removed from the home, and that Depina
wanted the defendant’s husband to receive the insur-
ance proceeds from the fire.
Before admitting these statements pursuant to § 8-3
(1) (D), the trial court needed to find only that the
state had proven the existence of a conspiracy by a
fair preponderance of the evidence. This standard is
substantially lower than the ‘‘beyond a reasonable
doubt’’ standard required to convict a criminal defen-
dant. On the basis of the evidence that the state pre-
sented, it was not clearly erroneous for the court to find
the existence of a conspiracy by a fair preponderance
of the evidence. Accordingly, the trial court properly
interpreted Depina’s statements to Corry and Depina’s
deposition testimony as statements of a coconspirator
in furtherance of a conspiracy under § 8-3 (1) (D) of
the Connecticut Code of Evidence, and admitted them
as further evidence of the conspiracy between Depina
and the defendant.
B
Depina’s Statements to Rasuk and Angelo
Turning next to Depina’s statements to Rasuk and
Angelo, the defendant relies on Crawford v. Washing-
ton, supra, 541 U.S. 36, to support her argument that
admission of these statements violated her right to con-
frontation under the sixth amendment to the United
States constitution. The defendant also claims that the
court abused its discretion by admitting the statements
as dual inculpatory statements. The state’s response is
threefold: that the defendant waived any Crawford
claim at trial; that, even if Crawford was not waived,
the statements were not testimonial and, thus, their
admission into evidence was not proscribed by Craw-
ford; and, finally, even if the court incorrectly admitted
Depina’s statements to Rasuk and Angelo, the court’s
error was harmless beyond a reasonable doubt in light
of the strength of the properly admitted evidence of
the conspiracy.
The following additional facts and procedural history
are relevant to this portion of our opinion. The state
called Angelo to testify about statements that Depina
made to her and Rasuk. At the time of her testimony,
Angelo had been a Bridgeport police officer for thirteen
years. On December 19, 2010, Angelo was at the home
of Rasuk, a friend and fellow Bridgeport police officer.
Rasuk is also the defendant’s sister-in-law. Rasuk was
hosting a reception at her home following a memorial
service for the defendant’s husband, who had died a
couple of days prior. Depina was present at the memo-
rial reception, and at one point during the evening asked
to speak to Rasuk in private. Angelo was present during
the conversation, along with Depina’s girlfriend, Carla
Silva. Depina stated that he wanted to speak to the
group ‘‘with regards to the Monroe residence being set
on fire by [the defendant].’’ He told the group that the
defendant was responsible for setting the house on fire,
and made statements regarding his communications
with the defendant before and after the morning of
the fire.
Depina explained that several days prior to the fire,
numerous items were removed from the defendant’s
home. These items included jewelry, furniture, family
pictures, and other personal items. Depina stated that
he was present while the items were being removed
and videotaped the items being removed. Additionally,
he stated that prior to the fire, he warned the defendant
against setting the fire. He also told the group that on
the morning of the fire, the defendant called him and
stated that ‘‘it was done,’’ meaning that the fire had
been set. Depina detailed that the defendant had ‘‘lit
a match in the stove and also she had lit a sheet in
the chimney.’’
While speaking to the group, Depina stated that he
wanted to see the defendant’s husband get the insur-
ance money from the fire. He also explained ‘‘that if he
had to, he would go to the police. And that if he had
to go to jail, he would go to jail . . . .’’ Finally, Depina
stated ‘‘just to leave his girlfriend [Silva] out of
everything.’’
Prior to Angelo’s testimony in front of the jury, the
court heard arguments on the admissibility of Depina’s
statements to Rasuk and Angelo. The state argued that
Depina’s statements should be admitted as dual inculpa-
tory statements under § 8-6 (4) of the Connecticut Code
of Evidence. Defense counsel responded that Depina’s
statements were not admissible as dual inculpatory
statements because they were not against Depina’s
penal interest and did not meet the second prong of
Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed.
2d 597 (1980), overruled in part on other grounds by
Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004).2 In fact, defense counsel
stated that ‘‘[t]his is not a Crawford issue.’’3 The court
determined that Depina’s statements to Rasuk and
Angelo were admissible as dual inculpatory statements,
and that admission of the statements satisfied the sec-
ond prong of Roberts.
Before discussing the state’s claim that the defendant
waived reliance on Crawford v. Washington, supra, 541
U.S. 36, we turn to the question of whether Depina’s
statements to Rasuk and Angelo reasonably can be char-
acterized as inculpating both himself and the defendant
pursuant to § 8-6 (4) of the Connecticut Code of Evi-
dence. ‘‘To the extent a trial court’s admission of evi-
dence is based on an interpretation of the [Connecticut]
Code of Evidence, our standard of review is plenary.’’
(Internal quotation marks omitted.) State v. Miller,
supra, 121 Conn. App. 780.
‘‘Section 8-6 (4) of the Connecticut Code of Evidence
creates an exception to the hearsay rule for an out-of-
court statement made by an unavailable declarant if
that statement was trustworthy and, at the time of its
making, so far tended to subject the declarant to crimi-
nal liability that a reasonable person in the declarant’s
position would not have made the statement unless the
person believed it to be true. . . . That section further
instructs that, [i]n determining the trustworthiness of
a statement against penal interest, the court shall con-
sider (A) the time the statement was made and the
person to whom the statement was made, (B) the exis-
tence of corroborating evidence in the case, and (C)
the extent to which the statement was against the
declarant’s penal interest. . . . Additionally, this court
has held that, 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 factors and determine whether the totality of the
circumstances supports the trustworthiness of the
statement.’’ (Citations omitted; footnote omitted; inter-
nal quotation marks omitted.) State v. Camacho, supra,
282 Conn. 358–59.
‘‘A dual inculpatory statement is a statement that
inculpates both the declarant and a third party, in this
case the defendant. . . . We evaluate dual inculpatory
statements using the same criteria we use for state-
ments against penal interest. . . . 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. Under § 8-6 (4)
[of the Connecticut Code of Evidence], we must evalu-
ate the statements according to a reasonable person
standard, not according to an inquiry into the declar-
ant’s personal knowledge or state of mind.’’ (Citations
omitted; internal quotation marks omitted.) Id., 359.
Our Supreme Court’s decision in Camacho informs
our analysis of this issue. In Camacho, the trial court
admitted the testimony of two witnesses (Martin and
Fusco), who testified regarding statements that the
defendant’s coconspirator (Henry) made to them. Id.,
341. Henry detailed to Martin and Fusco, on separate
occasions, that he and the defendant went to the resi-
dence of one of the victims (Votino) to collect a drug
debt. Id., 345. When another person in the home taunted
the defendant, the defendant shot that person and Vot-
ino. Id. Henry then instructed the defendant to shoot
the final two victims so no one could identify him and
the defendant. Id.
On appeal, the defendant argued that the trial court
improperly concluded that Henry’s statements fell
within the exception for dual inculpatory statements
under the Code of Evidence.4 Id., 358. Our Supreme
Court disagreed and concluded that ‘‘Henry’s state-
ments to Fusco were not blame-shifting because they
exposed him to potential liability for the same crimes
with which the defendant is now charged, thereby impli-
cating both himself and the defendant equally.’’ (Foot-
note omitted.) Id., 360. The court further noted that
‘‘Henry understood the legal implications of his state-
ments.’’ Id. For example, while speaking to Martin,
Henry stated ‘‘that [Martin] could put him in the electric
chair,’’ and ‘‘repeatedly warned [Martin] not to talk to
the police and questioned whether he could trust her
. . . .’’ Id., 360–61. The court concluded that these state-
ments ‘‘indicat[e] that [Henry] reasonably understood
that his statements were against his penal interest.’’
Id., 361.5
Here, Depina’s statements to Rasuk and Angelo fol-
low a line similar to Henry’s statements to Martin and
Fusco. Depina asked Rasuk if he could speak to her in
private, away from the other guests who were attending
the memorial reception for the defendant’s husband.
Rasuk, Angelo, Silva, and Depina then gathered in the
hallway of Rasuk’s home, away from the other guests.
Depina stated that the defendant was responsible for
setting her house on fire and detailed how the defendant
set the fire that destroyed her home. Depina explained
that he knew this information because he was in contact
with the defendant on the day of, as well as the days
prior to, the fire. He also explained that he was present
while items were being removed from the defendant’s
home prior to the fire and that there was a video of
the items being removed. Regarding the consequence
of his admissions, Depina stated ‘‘that he knew that
what he was telling [the group] would possibly have
him arrested, and that he . . . doesn’t care, he would
go to the police [and] if he had to be arrested, he would
be arrested.’’ Depina also stated that ‘‘if he had to go
to jail, he would go to jail,’’ and ‘‘to keep his girlfriend
out of this, and that if he had to go to the police, he
would go to the police.’’
The foregoing demonstrate that Depina ‘‘reasonably
understood that his statements’’ to Rasuk and Angelo
‘‘were against his penal interest.’’ State v. Camacho,
supra, 282 Conn. 361. Depina similarly understood the
legal implications of his statements, as he indicated
that he knew his statements could result in his being
arrested, and that, if necessary, he would go to the
police and go to jail. Like Henry’s statements in Cama-
cho, Depina’s statements here were not blame-shifting,
as the statements exposed him to liability for the same
crimes for which the defendant was charged.6 See
id., 360–61.
It is undisputed that Depina was unavailable to testify
at the defendant’s trial, as he would have invoked his
fifth amendment right against self-incrimination if
called to testify. Additionally, Depina’s statements to
Rasuk and Angelo present sufficient indicia of reliabil-
ity. As noted in the preceding paragraphs, Depina asked
to speak to Rasuk and Angelo in private. Depina made
this request during a memorial reception that Rasuk was
hosting following the death of the defendant’s husband.
The statements were against Depina’s penal interest as
they implicated Depina in the conspiracy to commit
insurance fraud. Although the statements were made
three years after the fire, taking all the relevant factors
into consideration, we conclude that the court properly
characterized Depina’s statements to Rasuk and Angelo
as dual inculpatory statements under § 8-6 (4) of the
Connecticut Code of Evidence. See State v. Smith,
supra, 289 Conn. 631–32.
We acknowledge that whether counsel’s statement
that ‘‘[t]his is not a Crawford issue’’ waived the defen-
dant’s claim under Crawford presents a close question.
If counsel’s statement did not waive the Crawford
claim, whether Depina’s statements to Rasuk and
Angelo were testimonial for Crawford purposes pre-
sents another close question of law. As to waiver, it is
apparent that the court was mindful, before trial, of the
potential Crawford implications surrounding Depina’s
statements to Rasuk and Angelo; see footnote 3 of this
opinion; but at trial, counsel expressly disclaimed
Crawford on this issue. We are also mindful, too, that
decisional law regarding the contours of waiver is
evolving.7
Regarding whether Depina’s statements were testi-
monial, it is apparent from the record that Depina per-
ceived that his statements to the police officers could
subsequently be used against him. Reciprocally, it is
evident that the officers did not interrogate Depina or
otherwise question him in any way, behavior that Craw-
ford expressly found rendered a person’s statements
testimonial.
From the record, however, it is abundantly clear that
whether or not the court erroneously admitted evidence
of this conversation between Depina and the Bridgeport
police officers as dual inculpatory statements, there
was an abundance of admissible evidence adduced at
trial to render this mistake, if any, harmless beyond a
reasonable doubt.8 For example, the jury heard evi-
dence about the defendant’s deteriorating financial situ-
ation. Specifically, there was evidence that the
defendant and her husband were late making payments
to creditors, they had state and federal tax liens of
nearly $145,000 filed against their home, they could not
pay for necessities such as home heating oil, and the
defendant’s husband’s business was failing because of
his opioid addiction. This evidence provided a strong
motive for the defendant to burn down her house to
obtain the insurance proceeds.
Moreover, the jury heard that the defendant con-
tacted her insurance carrier days before the fire to
inquire about whether her homeowner’s insurance pol-
icy was still active. Additionally, Corry testified that
‘‘after ruling all of [the] other potential sources of igni-
tion out, that this was an intentionally set fire.’’ Corry
also testified that the defendant claimed she had valu-
able jewelry in her bedroom, but that after an extensive
search of the bedroom, he never located the valuable
jewelry. From this evidence, the jury could infer that
the valuable jewelry was removed from the home prior
to the fire.
The state presented the transcript of the defendant’s
interview with Corry, as well as a recording of Depina’s
interview with Corry and Depina’s deposition testi-
mony. In these exhibits, the defendant and Depina
detailed their activities on the morning of the fire. The
state then presented cell site location information evi-
dence, which contradicted the times and locations that
the defendant and Depina told Corry and the police.
The state used this evidence of a false interlocking alibi
to establish the existence of a conspiracy between the
defendant and Depina. Taken together, the substantial
amount of admissible evidence supporting the defen-
dant’s conviction renders any mistake by the trial court,
if any, harmless beyond a reasonable doubt. Accord-
ingly, the defendant’s first claim on appeal fails.
II
The defendant’s second claim on appeal is that the
state’s use of cell site location information to convict
her violated her rights under article first, § 7, of the
constitution of Connecticut.9 Although the defendant
did not raise this claim at trial, she argues that review
of the claim is appropriate under State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by
In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
The state maintains that the record is inadequate for
review of this claim, and that if reviewed, the defendant
has not shown state action to establish a violation under
article first, § 7. We agree with the state.
The following additional facts and procedural history
are relevant to the defendant’s second claim. On Febru-
ary 4, 2015, the state presented the testimony of Ryan
Harger, a representative of Sprint Corporation (Sprint).
The defendant and her husband were customers of
Sprint. The state, through Harger, introduced the defen-
dant’s Sprint phone records (records) from January,
2008. Harger explained that Sprint often receives court
orders or subpoenas from law enforcement agencies
ordering Sprint to produce phone records. Although
Harger stated that Sprint produced the defendant’s
records pursuant to a subpoena, he did not testify from
what agency Sprint received the subpoena.
The state then called Deputy United States Marshal
James Masterson. Masterson testified that he had
reviewed the records from the morning of the fire and
analyzed the defendant’s movements on that morning.
Masterson explained that, even though the defendant
stated that she left her house at approximately 9 a.m.
on the morning of the fire, she made a phone call to
Depina at 9:36:14 a.m. that began and ended on the
same cell towers as the defendant’s previous calls from
home. Additionally, the defendant received a phone call
from her security system with ADT Security Services,
Inc., at 9:39:47 a.m., which also began and ended on
the same towers as the defendant’s previous calls from
home. It was not until the defendant received a phone
call at approximately 9:50 a.m. that her phone accessed
a cell tower other than the ones typically accessed when
the defendant made a call from home.
Moreover, Masterson opined that, by 9:56 a.m. on
the morning of the fire, the defendant’s phone had not
arrived in Ansonia or connected to any cell tower in
Ansonia. He testified that at 10:45 a.m., the defendant
received a phone call that connected to a cell tower
near Depina’s home. Masterson explained that, at 10:52
a.m., the defendant received a phone call that connected
to a cell tower near Griffin Hospital. At about 11:22 a.m.,
the defendant’s phone accessed a cell tower typically
accessed from the defendant’s home.
The defendant argues that the court improperly
admitted the cell site location information evidence that
the state presented because admission of the cell site
location information violated her rights under article
first, § 7, of the constitution of Connecticut. We
disagree.
‘‘[I]f an [evidentiary] impropriety is of constitutional
proportions, the state bears the burden of proving that
the error was harmless beyond a reasonable doubt.
. . . We recognize, of course, that a violation of consti-
tutional magnitude may be established even though
there has not been a complete abridgement or depriva-
tion of the right. A constitutional violation may result,
therefore, when a constitutional right has been imper-
missibly burdened or impaired by virtue of state action
that unnecessarily chills or penalizes the free exercise
of the right.’’ (Citation omitted; internal quotation marks
omitted.) State v. Johnson, 171 Conn. App. 328, 348,
157 A.3d 120, cert. denied, 325 Conn. 911, 158 A.3d
322 (2017).
Key to our analysis is whether the action under review
is state action, which includes action directly by the
state as well as action by a private actor at the behest
of the state. See, e.g., State v. Colvin, 241 Conn. 650,
657, 697 A.2d 1122 (1997) (‘‘[t]he initial determination is,
therefore, whether the challenged evidence is in some
sense the product of illegal government activity’’ [inter-
nal quotation marks omitted]); see also State v. Betts,
286 Conn. 88, 96, 942 A.2d 364 (2008) (‘‘[a] private citi-
zen’s actions may be considered state action, however,
if he acts as an instrument or agent of the state’’ [internal
quotation marks omitted]). Thus, in order for the defen-
dant to prevail on this issue, she must, as a preliminary
matter, point to trial evidence that the state or an entity
acting on behalf of the state obtained the phone records
from Sprint. The trial record, however, is silent in
that regard.
‘‘The defendant bears the responsibility for providing
a record that is adequate for review of his claim of
constitutional error. If the facts revealed by the record
are insufficient, unclear or ambiguous as to whether a
constitutional violation has occurred, we will not
attempt to supplement or reconstruct the record, or to
make factual determinations, in order to decide the
defendant’s claim. . . . The defendant also bears the
responsibility of demonstrating that his claim is indeed
a violation of a fundamental constitutional right. Pat-
ently nonconstitutional claims that are unpreserved at
trial do not warrant special consideration simply
because they bear a constitutional label.’’ (Citations
omitted.) State v. Golding, supra, 213 Conn. 240.
On the basis of our review of the record, it is unclear
from whom Sprint received the subpoena to produce
the defendant’s phone records. The defendant did not
produce any evidence establishing the source of the
subpoena that ordered Sprint to produce her phone
records. Because the defendant cannot establish that
the production of the records was the result of state
action, the defendant cannot, therefore, establish that
the claimed violation of article first, § 7, of the constitu-
tion of Connecticut resulted from state action. We con-
clude that the record is inadequate to review, and,
accordingly, the defendant’s second claim on appeal
fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At a hearing prior to the start of evidence, the state explained, with
respect to Depina’s statements to Corry and deposition testimony that ‘‘[t]he
state is offering those statements as verbal acts, verbal deeds, the fact
that those statements were given, not that they’re necessarily true because
obviously the state’s position is, is the fact that they’re not true, but they
are part of [the] concept of the interlocking false alibi.’’
2
The second prong of Roberts requires that a statement bear ‘‘adequate
‘indicia of reliability.’ ’’ Ohio v. Roberts, supra, 448 U.S. 66.
3
To give context to defense counsel’s statement, we highlight portions
from an on-the-record hearing that occurred the day prior to the start of
evidence. Our review of this colloquy makes clear that the court was con-
cerned about a potential Crawford issue regarding Depina’s statements and
alerted both the state and defense counsel to its concern. For example,
while discussing the admissibility of Depina’s statements, the court stated
that ‘‘the court has a Crawford issue here; that’s what I’m trying to figure
out, which way we go with this.’’ Shortly thereafter, the court noted, ‘‘I think
the court has to conduct a Crawford analysis in light of all of these facts
and circumstances . . . . I think Crawford is in the case, but whether or
not I find that it does not apply to—to these statements, that’s a different
issue.’’ Additionally, the court directed defense counsel’s attention to Craw-
ford when it stated:
‘‘The Court: [Y]ou don’t cite Crawford by name, [counsel], but you do,
in your motion, clearly in the first paragraph, [d]o talk about her rights of
confrontation and due process under the fifth, sixth and fourteenth
[a]mendment.
‘‘[Defense Counsel]: Right.
‘‘The Court: It’s implicated.
‘‘[Defense Counsel]: It is. And I just see a potential can of worms being
opened here if the state is allowed to bring in witnesses, and let’s say Mr.
Depina has a different view of the conversation that took place, and he’s
claiming the fifth [amendment], and I can’t call him; I think then we’re
running into some problems. But again, it’s all fact dependent.’’
4
In Camacho, the defendant also argued that admission of Fusco’s testi-
mony violated the confrontation clause of the sixth amendment to the United
States constitution; our Supreme Court rejected that argument. State v.
Camacho, supra, 282 Conn. 351.
5
The Supreme Court noted that ‘‘[a]lthough Henry made these statements
to Martin, not Fusco, because he told both women essentially the same
story, it is clear that he understood the legal ramifications of both state-
ments.’’ State v. Camacho, supra, 282 Conn. 361.
6
In fact, Depina was charged with acting as the defendant’s coconspirator.
See State v. Azevedo, Superior Court, judicial district of Fairfield, Docket
No. CR-13-270435T, 2015 WL 5626280, *2 (August 21, 2015).
7
See, e.g., State v. Davis, 311 Conn. 468, 485, 88 A.3d 445 (2014) (Palmer,
J., concurring) (‘‘If the majority now has second thoughts about . . . [State
v. Kitchens, 299 Conn. 447, 10 A.3d 947 (2011)]—as it should . . . then the
majority should say so. . . . I continue to believe that our decision in Kitch-
ens was manifestly incorrect.’’); State v. Bellamy, 323 Conn. 400, 454, 147
A.3d 655 (2016) (Rogers, C. J., concurring) (‘‘I agree with the defendant
. . . that this court’s marked expansion of the doctrine of implied waiver
of claims of jury instructional error in . . . Kitchens . . . was mistaken
and, therefore, I would overrule that decision and return to the much nar-
rower conception of implied waiver that previously governed our jurispru-
dence in this area’’); id., 470 (Palmer, J., concurring in the judgment) (‘‘[T]he
court [in Kitchens] concluded that, for various reasons of public policy, it
is desirable and appropriate to treat such challenges as waived and unreview-
able on appeal. . . . Both of these conclusions are indefensible.’’ [Cita-
tion omitted.]).
8
In deciding this case based on harmlessness, we have not concluded
that the trial court abused its discretion in admitting Depina’s statements
to Rasuk and Angelo. The question of whether these statements are testimo-
nial is a very close call, as is the question of whether defense counsel’s
statement that ‘‘[t]his is not a Crawford issue’’ constituted a waiver of the
defendant’s right to claim a confrontation clause violation under Crawford.
Additionally, it appears from the record that defense counsel’s argument
steered the court away from Crawford. Under these circumstances, and
because the contours of waiver are the subject of a continuing discussion
in our Supreme Court; see footnote 7 of this opinion; considerations of
judicial efficiency and fundamental fairness warrant assessing this issue on
the basis of harmless error analysis.
We note that we are disposing of this claim pursuant to State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015). The defendant here has failed to
satisfy the fourth prong of Golding, which requires that the state fail to
demonstrate the harmlessness of an alleged constitutional violation beyond
a reasonable doubt. See id., 240. In Golding, the court explained that ‘‘[when]
the state is able to demonstrate the harmlessness of such alleged violation
beyond a reasonable doubt . . . it would be a waste of judicial resources,
and a pedantic exercise, to delve deeply into the constitutional merits of a
claim that can appropriately be resolved in accordance with the relevant
harmless error analysis.’’ (Citations omitted.) Id., 241–42. Here, given the
amount of independent, admissible evidence of the defendant’s guilt, we
decline to ‘‘delve deeply into the constitutional merits’’; id. 242; of the defen-
dant’s claim, and resolve this issue through harmless error analysis.
9
Article first, § 7, of the Connecticut constitution provides: ‘‘The people
shall be secure in their persons, houses, papers and possessions from unrea-
sonable searches or seizures; and no warrant to search any place, or to
seize any person or things, shall issue without describing them as nearly
as may be, nor without probable cause supported by oath or affirmation.’’