State v. Lebrick , 179 Conn. App. 221 ( 2018 )

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STATE OF CONNECTICUT v. HORVIL F. LEBRICK
(AC 39980)
Alvord, Prescott and Pellegrino, Js.
Syllabus
Convicted of the crimes of felony murder, home invasion, conspiracy to
commit home invasion, burglary in the first degree, attempt to commit
robbery in the first degree and assault in the first degree in connection
with the shooting death of the victim, the defendant appealed. He
claimed, inter alia, that the trial court improperly admitted into evidence
the former testimony of a witness, P, who testified at the defendant’s
probable cause hearing. The defendant also claimed that the court
improperly permitted the testimony of a firearm and tool mark expert,
S, who testified at trial regarding the ballistic evidence collected at the
crime scene. Held:
1. The defendant could not prevail on his claim that the former testimony
of P was inadmissible hearsay because the state failed to establish
that P was unavailable and, thus, P’s testimony did not fall within the
exception to the hearsay rule set forth in § 8-6 (1) of the Connecticut
Code of Evidence: the trial court did not abuse its discretion in admitting
the challenged testimony, which involved substantially similar issues
to those at the defendant’s trial, as the record demonstrated that the
defendant had a full and fair opportunity to cross-examine P about her
testimony at the probable cause hearing, and the state made a good
faith effort to locate P by attempting to contact P at her last known
address and phone number found in the case file and searching multiple
computer databases in order to locate P, which was unsuccessful; more-
over, the defendant’s claim that the admission of P’s former testimony
violated his constitutional right to confrontation was unavailing, as P
was unavailable to testify at trial and the defendant had a full and
fair opportunity to cross-examine her at the probable cause hearing
regarding her testimony.
2. The defendant’s unpreserved claim that the trial court improperly admitted
S’s testimony in violation of § 4-1 of the Connecticut Code of Evidence
because the state failed to establish the relevancy of S’s testimony
by providing a sufficient evidentiary foundation that the photographs,
report, and notes relied on by S were associated with the crimes at
issue in the present case was not reviewable, the defendant having failed
to raise before the trial court the particular relevancy objection that he
asserted on appeal; moreover, even though S’s opinion was formulated
in part by his review of a ballistic report prepared by a former employee
of the state’s forensic laboratory who was not available to testify at
trial, there was no merit to the defendant’s claim that his constitutional
right to confrontation was implicated by the admission of S’s opinion
testimony because, even if the ballistic report contained testimonial
hearsay, the state did not seek to introduce the ballistic report or any
statement or opinion by the former employee regarding the ballistic
evidence through S, who was available for cross-examination at trial
regarding his own scientific conclusions and the factual basis underpin-
ning his opinion, and, thus, the defendant was afforded a full opportunity
to confront the declarant of the actual scientific conclusions admitted
against him.
Argued October 12, 2017—officially released January 16, 2018
Procedural History
Substitute information charging the defendant with
the crimes of felony murder, home invasion, conspiracy
to commit home invasion, burglary in the first degree,
conspiracy to commit burglary in the first degree,
attempt to commit robbery in the first degree, conspir-
acy to commit robbery in the first degree, and assault
in the first degree, brought to the Superior Court in the
judicial district of Hartford, and tried to the jury before
Dewey, J.; thereafter, the court denied the defendant’s
motions to preclude certain evidence; verdict and judg-
ment of guilty; subsequently, the defendant’s conviction
of conspiracy to commit burglary in the first degree
and conspiracy to commit robbery in the first degree
was vacated, and the defendant appealed. Affirmed.
Raymond L. Durelli, assigned counsel, for the appel-
lant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, John F. Fahey and Robert Diaz, senior assistant
state’s attorneys, and Allen M. Even, certified legal
intern, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Horvil F. Lebrick,
appeals from the judgment of conviction, rendered after
a jury trial, of felony murder in violation of General
Statutes (Rev. to 2009) § 53a-54c, home invasion in vio-
lation of General Statutes §§ 53a-100aa (a) (2) and 53a-
8, conspiracy to commit home invasion in violation of
General Statutes §§ 53a-100aa (a) (2) and 53a-48 (a),
burglary in the first degree in violation of General Stat-
utes §§ 53a-8 (a) and 53a-101 (a) (1), conspiracy to
commit burglary in the first degree in violation of Gen-
eral Statutes §§ 53a-48 (a) and 53a-101 (a) (1), attempt
to commit robbery in the first degree in violation of
General Statutes §§ 53a-134 (a) (2) and 53a-49 (a) (2),
conspiracy to commit robbery in the first degree in
violation of General Statutes §§ 53a-134 (a) (2) and 53a-
48 (a), and assault in the first degree in violation of
General Statutes §§ 53a-59 (a) (5) and 53a-8.1
The defendant claims on appeal that the trial court
improperly admitted into evidence (1) former testimony
of a witness in violation of § 8-6 (1) of the Connecticut
Code of Evidence and the confrontation clause of the
sixth amendment to the United States constitution, and
(2) testimony by the state’s firearm and tool mark expert
in violation of § 4-1 of the Connecticut Code of Evidence
and the confrontation clause of the sixth amendment
to the United States constitution. We disagree and,
accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following
facts on the basis of the evidence presented at trial. On
the morning of May 6, 2010, the defendant and his twin
cousins, Andrew and Andraw Moses, were driven by
an unidentified fourth man in a Ford Econoline van
from New York to an apartment building located at 115
Nutmeg Lane in East Hartford. One of the apartments
in that building was rented by Omari Barrett, a pur-
ported drug dealer, whom the defendant and the twins
intended to rob. When they arrived at the apartment
building, the defendant and the twins, who were dressed
in workmen’s clothes and hard hats, exited the van,
entered the building, and knocked on the door of Bar-
rett’s third floor apartment. When no one answered
after repeated knocking, the defendant kicked open the
door, and he and the twins entered the apartment. All
three were armed with guns.
Barrett’s girlfriend, Shawna Lee Hudson, was alone
in the small, two bedroom apartment at that time. She
did not open the door when she heard knocking, but
instead telephoned Barrett. Barrett told Hudson that
he was not expecting any workers and hung up the
phone. Hearing someone trying to force entry, Hudson
called Barrett back, and he told her to get the .357
magnum revolver that was in the apartment. Barrett
ended the call and proceeded to drive to the apartment
armed with a nine millimeter revolver. Hudson called
him a third time as he was driving and conveyed that
the men were in the apartment and that she was hiding
in the bedroom closet. As Barrett arrived, he heard on
the phone someone saying, ‘‘Where’s the money? Shut
the fuck up,’’ at which point the call ended.
Barrett ran into the building to the apartment, notic-
ing as he approached that the door was open and
appeared to have been kicked in. Barrett entered the
apartment and immediately encountered the twins,
whom he fatally shot. Barrett then called out to Hudson,
who was in the bedroom with the defendant, and asked
her how many more people were in the apartment. She
said that there was one more. The defendant and Barrett
then engaged in a gunfight in which Barrett was shot
once in the leg and once in the arm. Barrett retreated
from the apartment into the hallway to an alcove by
the elevators. He next heard a single gunshot and saw
the defendant exit the apartment and flee in the oppo-
site direction down the hallway. Running back into the
apartment, Barrett found Hudson, who had been shot
once in the chest.
Both Hudson and the twins were pronounced dead
at the scene. The police collected numerous bullets and
shell casings from in and around the apartment. The
only firearm recovered at the scene was a .45 caliber
automatic. The police also found an oil change receipt
for an Econoline van. That receipt helped the police to
identify the defendant as a suspect, and he subsequently
was arrested and charged.
Following a jury trial, the defendant was convicted
on all charges.2 He was later sentenced by the court,
which imposed a total effective sentence of ninety years
of incarceration. This appeal followed. Additional facts
and procedural history will be set forth as necessary.
I
The defendant first claims that the court improperly
admitted into evidence the former testimony of a mate-
rial witness, Keisha Parks, who testified at the defen-
dant’s probable cause hearing in this matter. The
defendant’s arguments in support of that claim are two-
fold. First, he argues that Parks’ former testimony was
inadmissible hearsay because it did not fall within the
exception to the hearsay rule set forth in § 8-6 (1) of
the Connecticut Code of Evidence in light of the state’s
failure to properly establish that Parks was unavailable
for trial, a necessary prerequisite to the exception’s
applicability. Second, he argues that the admission of
the former testimony violated his rights under the con-
frontation clause of the sixth amendment of the United
States constitution, citing Crawford v. Washington, 541
U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We
disagree with both arguments.
The following additional facts are relevant to our
resolution of this claim. Parks was the fiance´e of
Andrew Moses, one of the defendant’s twin cousins.
She reluctantly testified at the defendant’s probable
cause hearing on November 10, 2010. Among other
things, she testified about a conversation that she had
with the defendant in the early evening of May 6, 2010,
in which he implicated himself in the events that tran-
spired that same day at the apartment in East Hartford.
The defendant was represented by counsel at the proba-
ble cause hearing, and defense counsel extensively
cross-examined Parks about her testimony.
On March 5, 2014, the defendant filed a motion asking
the court to preclude the state from offering Parks’
probable cause testimony as evidence at trial. The
defendant argued that Parks’ former testimony was
hearsay and testimonial in nature and, thus, was admis-
sible only if the state could show that Parks was unavail-
able and that the defendant had had a full and fair
opportunity to cross-examine her. The defendant
argued that the state had the burden of demonstrating
Parks’ unavailability, including that it made a good faith
effort to procure her attendance for trial.
On October 16, 2014, during the trial but outside the
presence of the jury, the court heard testimony from the
following two witnesses concerning the state’s effort
to locate Parks for trial: Henry Hightower, a police
inspector with the state’s criminal justice division, and
Frank Garguilo, an investigator with the Brooklyn Dis-
trict Attorney’s Office. Hightower testified that the case
file contained Parks’ last known address and phone
number. Hightower called the telephone numbers listed
in the case file for Parks but received no answers. He
also ran Parks’ name and birthdate through several
computer database searches. Specifically, he utilized
the Hartford Police Department’s in-house computer;
National Crime Information Center, a national database
utilized by the Connecticut State Police to run criminal
background checks; and CLEAR, a database that
searches publicly available data within a specified state.
The CLEAR search was the only one that produced any
results, listing several phone numbers and addresses in
New York associated with Parks as of 2013. Hightower
e-mailed the Brooklyn District Attorney’s Office with
the most current phone numbers and addresses he
could find for Parks, and asked the office to send an
investigator to check those addresses and to serve
Parks with an interstate summons to appear for trial.
Garguilo testified that the Brooklyn District Attor-
ney’s Office assigned him with the task of serving the
summons on Parks. He checked the addresses provided
by Hightower; he visited the addresses, sometimes
twice in one day, but no one answered at any of the
locations. Garguilo also called the telephone numbers
provided to him and left messages on some answering
machines, but got no return response. Garguilo was
never asked to conduct an independent investigation
into Parks’ whereabouts, and he did not do so. Ulti-
mately, neither Hightower nor Garguilo was able to
locate Parks.
After hearing from the state’s witnesses, the court
heard argument from the parties. The state maintained
that the efforts described by Hightower and Garguilo
demonstrated that the state exercised reasonable due
diligence in locating Parks to secure her testimony for
trial. The defendant, on the other hand, took the posi-
tion that the state’s efforts fell far short of meeting its
burden of showing the necessary good faith effort to
procure Parks’ attendance. The defendant referenced
our decision in State v. Wright, 107 Conn. App. 85, 943
A.2d 1159, cert. denied, 287 Conn. 914, 950 A.2d 1291(2008), both for the proposition that the state must
show substantial due diligence and as an example of
what has qualified previously as a reasonable effort to
locate a witness. See id., 90–92. The defendant pointed
out that the state had failed to conduct any searches
of social media websites, to look for driver’s license
information in New York, or to access social security
information to use as an additional search criterion.
The defendant also argued that no effort was made to
speak to a landlord or neighbors at the addresses visited
by Garguilo in order to determine whether Parks cur-
rently lived at those locations or had moved. Finally,
the defendant argued that although Hightower testified
that he believed that information such as housing mat-
ters, civil protective orders and child support orders
involving Parks should have been discovered as part
of his search of the CLEAR system, he was unable
to testify precisely about what information could be
obtained by a search in CLEAR. The court reserved
ruling on the motion at that time.
At the court’s request, the state later presented addi-
tional testimony from a CLEAR product specialist
employed by Thomson Reuters, Erin Tiernam, who had
knowledge of how the CLEAR system operated. Tier-
nam testified that CLEAR was a subscription service
used to search for people and that it acted as a data
aggregator, pulling information from a number of public
record sources. If a name and date of birth is entered,
the system is designed to return credit histories, utility
records, death records, records of court and property
records. After hearing from Tiernam, the court ruled
that it would allow the state to read the former testi-
mony into the record.3
A
We first address the defendant’s evidentiary claim
that, because the state failed to meet its burden regard-
ing Parks’ unavailability, the court should have deemed
her former testimony inadmissible hearsay. We are
not persuaded.
We begin by discussing our standard of review. In
considering the propriety of a court’s evidentiary rul-
ings, ‘‘the appropriate standard of review is best deter-
mined, not as a strict bright line rule, but as one driven
by the specific nature of the claim.’’ State v. Saucier,
283 Conn. 207, 218, 926 A.2d 633 (2007). ‘‘To the extent
a trial court’s admission of evidence is based on an
interpretation of the Code of Evidence, our standard
of review is plenary. For example, whether a challenged
statement properly may be classified as hearsay and
whether a hearsay exception properly is identified are
legal questions demanding plenary review. They require
determinations about which reasonable minds may not
differ; there is no ‘judgment call’ by the trial court, and
the trial court has no discretion to admit hearsay in the
absence of a provision providing for its admissibility.’’
Id. If, however, the court’s decision to admit evidence
is premised upon a correct view of the law, we review
such decisions only for an abuse of discretion. Id.It is undisputed in the present case that Parks’ former
testimony is properly classified as hearsay and, thus,
inadmissible unless it satisfies the exception in § 8-
6 (1) of the Connecticut Code of Evidence. The sole
challenge here is to the unavailability of Parks, or, more
precisely, whether the court properly determined that
the state had exercised due diligence to locate and
secure Parks’ attendance at trial. Because that determi-
nation involved the court exercising its discretion to
make a ‘‘judgment call,’’ the proper standard of review
is the abuse of discretion standard. See id.; see also
State v. Lopez, 239 Conn. 56, 79, 681 A.2d 950 (1996)
(‘‘it is within the discretion of the trial court to accept
or to reject the proponent’s representations regarding
the unavailability of a declarant and the trial court’s
ruling will generally not be disturbed unless the court
has abused its discretion’’). ‘‘[W]hen [appellate courts]
review claims for an abuse of discretion, the question
is not whether any one of us, had we been sitting as
the trial judge, would have exercised our discretion
differently. . . . Rather, our inquiry is limited to
whether the trial court’s ruling was arbitrary or unrea-
sonable.’’ (Citation omitted; internal quotation marks
omitted.) State v. Cancel, 275 Conn. 1, 18, 878 A.2d
1103 (2005).
Turning to the applicable law, the Connecticut Code
of Evidence § 8-6 provides in relevant part: ‘‘The follow-
ing are not excluded by the hearsay rule if the declarant
is unavailable as a witness: (1) Former testimony.
Testimony given as a witness at another hearing of the
same or a different proceeding, provided (A) the issues
in the former hearing are the same or substantially
similar to those in the hearing in which the testimony
is being offered, and (B) the party against whom the
testimony is now offered had an opportunity to develop
the testimony in the former hearing. . . .’’ (Emphasis
added.) In the present case, there is no dispute that
Parks’ testimony at the defendant’s probable cause
hearing involved ‘‘substantially similar’’ issues as those
at trial, particularly because both concerned the same
substantive criminal charges. See State v. Parker, 161
Conn. 500, 503–504, 289 A.2d 894 (1971). Furthermore,
the defendant had a full and fair opportunity to cross-
examine the witness about her testimony at the proba-
ble cause hearing and, as reflected in the record, took
advantage of that opportunity. Therefore, as we pre-
viously have indicated, the sole basis for the defendant’s
claim that the former testimony was inadmissible hear-
say is his argument that the state failed to demonstrate
Parks’ unavailability for trial.
A declarant is deemed unavailable if he is ‘‘absent
from the hearing [or trial] and the proponent of his
statement has been unable to procure his attendance
. . . by process or other reasonable means.’’ (Internal
quotation marks omitted.) State v. Frye, 182 Conn. 476,
481, 438 A.2d 735 (1980) (utilizing for state law purposes
definition of unavailability contained in rule 804 of Fed-
eral Rules of Evidence). Our Supreme Court has inter-
preted ‘‘reasonable means’’ as requiring the proponent
‘‘to exercise due diligence and, at a minimum, make a
good faith effort to procure the declarant’s attendance.’’
(Internal quotation marks omitted.) State v. Rivera, 221
Conn. 58, 62, 602 A.2d 571 (1992). Although our Supreme
Court has stated that a good faith effort necessarily
requires a showing of ‘‘substantial diligence’’; State v.
Lopez, supra, 239 Conn. 75; it has also explained that
‘‘[a] proponent’s burden is to demonstrate a diligent
and reasonable effort, not to do everything conceivable,
to secure the witness’ presence.’’ (Emphasis added.)
Id., 77–78. Therefore, an opponent’s ability to point out
additional yet unexplored avenues of investigation will
not be dispositive of whether a proponent’s efforts at
locating a witness are deemed reasonable by a court.
In the present case, we agree with the defendant that
the state’s efforts to locate Parks were not exhaustive.
That, however, is not the standard, nor will we substi-
tute our own judgment for that of the trial court. The
standard is whether the state made a good faith effort to
locate Parks. Hightower, who was tasked with locating
Parks for the state, attempted to find her by using her
last known address and phone number found in the
case file. When that was unsuccessful, he utilized Parks’
name and birthdate to search several computer data-
bases, most notably the CLEAR system. The CLEAR
system searched for available public information
regarding Parks, including civil and criminal matters in
New York. The CLEAR search in fact returned addi-
tional addresses and telephone numbers associated
with Parks. Hightower engaged the help of the district
attorney’s office in New York to try to initiate personal
contact with Parks or Parks’ mother at the addresses
obtained from CLEAR and to serve a summons. The
assigned investigator from that office, Garguilo, made
several attempts personally to visit the addresses pro-
vided and to make telephone calls, but was unsuccess-
ful at making any contacts.
Although the defendant provides various additional
steps or alternative avenues of investigation that the
state might have utilized to locate Parks, including mak-
ing some effort to speak with third parties to obtain
her current whereabouts, the defendant has cited to no
authority mandating that such actions are necessary in
order to establish a good faith effort to locate a witness.
‘‘[T]he question of whether an effort to locate a missing
witness has been sufficiently diligent to declare that
person unavailable is one that is inherently fact specific
and always vulnerable to criticism, due to the fact that
one, in hindsight, may always think of other things.’’
(Internal quotation marks omitted.) State v. Miller, 56
Conn. App. 191, 194, 742 A.2d 402 (1999), cert. denied,
252 Conn. 937, 747 A.2d 4 (2000). In Miller, the state’s
investigator in that case testified at trial that he had
made unsuccessful efforts to contact three witnesses
at their last known addresses on file several weeks
prior to trial. Id., 194–95. This court concluded that the
state had made a good faith effort to locate the wit-
nesses and that the investigator’s testimony was satis-
factory to prove the witnesses’ unavailability. Id., 195.
The investigator in the present case did no less, and
also attempted to find additional leads by utilizing the
CLEAR database search. On the basis of this record,
we cannot conclude that the court abused its discretion
in finding, albeit implicitly, that the state met its burden
of demonstrating Parks’ unavailability.4
B
In addition to his evidentiary challenge, the defendant
also argues that the admission of Parks’ former testi-
mony violated his rights under the confrontation clause
of the sixth amendment to the United States constitu-
tion.5 Citing to Crawford v. Washington, supra, 541 U.S.
36, the defendant contends in his brief that ‘‘[t]estimo-
nial statements by witnesses who are not subject to
cross-examination at trial may not be admitted unless
the witness is unavailable and there has been a prior
opportunity for cross-examination.’’ Because both con-
ditions were met in the present case, we are not per-
suaded that the defendant’s rights under the
confrontation clause are implicated.
‘‘Beyond [applicable] evidentiary principles, the
state’s use of hearsay evidence against an accused in
a criminal trial is [also] limited by the confrontation
clause of the sixth amendment. . . . The sixth amend-
ment to the constitution of the United States guarantees
the right of an accused in a criminal prosecution to be
confronted with the witnesses against him. This right
is secured for defendants in state criminal proceedings.
. . . [T]he primary interest secured by confrontation
is the right of cross-examination.’’ (Citation omitted;
internal quotation marks omitted.) State v. Skakel, 276
Conn. 633, 712, 888 A.2d 985, cert. denied, 549 U.S. 1030,
127 S. Ct. 578, 166 L. Ed. 2d 428 (2006). ‘‘Traditionally,
for purposes of the confrontation clause, all hearsay
statements were admissible [under Ohio v. Roberts, 448
U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980)] if
(1) the declarant was unavailable to testify, and (2) the
statement bore adequate indicia of reliability. . . . [In
Crawford v. Washington, supra, 541 U.S. 68, however],
the United States Supreme Court overruled Roberts to
the extent that it applied to testimonial hearsay state-
ments. . . . In Crawford, the court concluded that the
reliability standard set forth in the second prong of the
Roberts test is too amorphous to prevent adequately
the improper admission of core testimonial statements
that the [c]onfrontation [c]lause plainly meant to
exclude.’’ (Internal quotation marks omitted.) State v.
Kirby, 280 Conn. 361, 379, 908 A.2d 506 (2006). Accord-
ingly, the United States Supreme Court held that if ‘‘tes-
timonial evidence is at issue . . . the [s]ixth
[a]mendment demands what the common law required:
unavailability and a prior opportunity for cross-exami-
nation.’’ Crawford v. Washington, supra, 68.
It is undisputed that Parks’ testimony at the probable
cause hearing was testimonial in nature and, thus, its
admission at trial for the truth of the matters asserted
implicated the test established in Crawford. See State
v. Skakel, supra, 276 Conn. 714 (former probable cause
hearing testimony ‘‘falls squarely within Crawford’s
core class of testimonial evidence’’). To the extent, how-
ever, that the defendant’s constitutional challenge relies
on the same assertion made in support of his evidentiary
argument, namely, that the state failed to demonstrate
that Parks was unavailable for trial, we again reject it.
Although a court’s ultimate determination as to
whether a statement is precluded under Crawford
raises an issue of constitutional law that is subject to
plenary review; see State v. Kirby, supra, 280 Conn.
378; the factual underpinnings of such a determination
are entitled to significant deference. State v. Swinton,
268 Conn. 781, 855, 847 A.2d 921 (2004). Whether a
witness is unavailable is such a factual determination.
See State v. Schiappa, 248 Conn. 132, 141, 728 A.2d 466(recognizing fact-bound nature of unavailability
inquiry), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145
L. Ed. 2d 129 (1999). In reviewing constitutional claims,
our customary deference to the trial court’s factual
finding is ‘‘tempered by the necessity for a scrupulous
examination of the record to ascertain whether such a
factual finding is supported by substantial evidence.’’
(Internal quotation marks omitted.) State v. Swinton,
supra, 855. Having conducted a scrupulous review of
the record, we are convinced that the testimony of
Hightower and Garguilo, as discussed in part I A of
this opinion, constitutes substantial evidence that fully
supports the trial court’s implicit findings that the state
exercised due diligence to locate Parks, and that Parks
was unavailable to testify.
Moreover, the record demonstrates that the defen-
dant had a full and fair opportunity to cross-examine
Parks regarding her testimony at the probable cause
hearing, defense counsel vigorously cross-examined
her at that time, and Parks’ cross-examination was part
of the testimony that was read back to the jury at trial.
Because Parks was unavailable to testify at trial and
the defendant had a full and fair opportunity to cross-
examine her at the probable cause hearing regarding
her testimony, his confrontation clause rights were not
violated by the admission of her former testimony at
trial.
II
The defendant next claims that the court improperly
permitted the testimony of James Stephenson, a firearm
and tool mark expert who testified at trial regarding
the ballistic evidence collected at the crime scene. The
defendant’s arguments in support of this claim are,
again, twofold. First, he argues that the testimony was
not relevant and, thus, admitted in violation of § 4-1 of
the Connecticut Code of Evidence, and that this error
was harmful. Second, he argues that the testimony vio-
lated his rights under the confrontation clause of the
sixth amendment to the United States constitution. We
disagree with both arguments.
The following additional facts and procedural history
are relevant to this claim. Gerard Petillo, a former
employee of the state’s forensic laboratory, performed
various tests on the ballistic evidence collected in this
case and authored a report containing his findings and
analysis. Unfortunately, prior to trial, Petillo passed
away and, thus, was unavailable to testify regarding his
report and its contents. Stephenson also worked for
the state’s forensic laboratory at the time that Petillo
created the ballistic report in this case and acted as
that report’s technical reviewer and ‘‘second signer.’’
Although the state informed the defendant that it did
not intend to offer Petillo’s report into evidence, it did
indicate that it would offer testimony from Stephenson,
who had agreed to testify on the basis of his review of
the photographs and report prepared by Petillo regard-
ing his own, independent conclusions.6
The defendant filed a motion to preclude Stephen-
son’s testimony, arguing that Petillo’s report was testi-
monial in nature and hearsay and, thus, that any
testimony or evidence concerning that report would
violate the defendant’s constitutional rights as deline-
ated in Melendez-Diaz v. Massachusetts, 557 U.S. 305,
129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), and Bullcoming
v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed.
2d 610 (2011). The defendant later supplemented his
motion, arguing that Stephenson lacked a proper foun-
dation to render his own opinion in this matter because
he had not personally performed any of the testing or
measurement of the evidence and that ‘‘[p]ermitting
Stephenson to testify about the adequacy and accuracy
of tests he did not perform is nothing more than a
means by which to present evidence of another witness
that is not available.’’ In support of this supplemental
argument, the defendant cited to § 7-4 of the Connecti-
cut Code of Evidence.7
The court held a hearing on the defendant’s motion
on October 27, 2014. At that time, the defendant
renewed his objection based on the confrontation
clause and raised, for the first time, an objection based
on relevancy. With respect to his relevancy argument,
the defendant asserted that he could not evaluate the
relevancy of Stephenson’s testimony because nothing
had been proffered regarding that testimony and it was
the defendant’s understanding that Stephenson had not
conducted his own independent testing but would rely
upon information in Petillo’s report.
The state argued that Stephenson would testify about
the projectiles found at the crime scene. In particular,
he would opine that the projectile found in Hudson’s
body and a shell casing recovered in her bedroom were
inconsistent with the nine millimeter projectiles found
in the twins’ bodies and in other areas of the crime
scene, suggesting that Hudson was killed by a different
nine millimeter gun, presumably one fired by the defen-
dant. Furthermore, the state argued that Stephenson’s
conclusions, although not any different than those
reached by Petillo, would be his own and based on his
independent evaluation of the information available.
Stephenson would be subject to cross-examination as
to those conclusions. Whatever materials or informa-
tion he reviewed in reaching his conclusions also would
be fodder for cross-examination.
The court denied the motion to preclude on the
record, indicating to defense counsel that it was going
to permit Stephenson to testify. The court explained
that the defendant certainly could raise by way of cross-
examination that Stephenson had not examined the
actual projectiles himself, suggesting that the court may
have believed that the defendant’s objections to Ste-
phenson’s testimony went more to the weight of the
evidence to the jury than to its overall admissibility.8
Before the jury, Stephenson testified consistent with
the state’s proffer. He never referred to the contents
of Petillo’s report, including Petillo’s conclusions.
Rather, he indicated only that he had reviewed a number
of reports and photographs relating to evidence submit-
ted to the state lab in preparation for his testimony and,
based on his background, training and experience, he
was able from that review to formulate his own opinion.
A
We first dispose of the defendant’s argument that the
court improperly admitted Stephenson’s testimony in
violation of § 4-1 of the Connecticut Code of Evidence9
because the state failed to establish the relevancy of
Stephenson’s testimony by providing a sufficient evi-
dentiary foundation that the photographs, report, and
notes relied on by Stephenson were associated with
the crimes at issue in this case. The state argues, inter
alia, that this evidentiary claim is unreviewable because
it was never raised before the trial court. We agree with
the state.
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
[An appellate court] is not bound to consider claims of
law not made at the trial. . . . In order to preserve an
evidentiary ruling for review, trial counsel must object
properly. . . . In objecting to evidence, counsel must
properly articulate the basis of the objection so as to
apprise the trial court of the precise nature of the objec-
tion and its real purpose, in order to form an adequate
basis for a reviewable ruling. . . . Once counsel states
the authority and ground of [the] objection, any appeal
will be limited to the ground asserted.’’ (Internal quota-
tion marks omitted.) State v. Jorge P., 308 Conn. 740,
753, 66 A.3d 869 (2013).
The defendant never raised an issue of relevancy in
his motion to preclude Stephenson’s testimony but did
argue relevancy in his argument before the court prior
to Stephenson’s testimony. That particular argument,
however, was premised solely on the fact that the state
had not yet made a proffer regarding Stephenson’s trial
testimony nor had the defense been provided with any
report from Stephenson. The defendant asserted, there-
fore, that he could not yet evaluate the relevancy of
Stephenson’s testimony. After hearing from the state
regarding the nature of Stephenson’s testimony, how-
ever, the trial court overruled the defendant’s objec-
tions and decided to allow Stephenson to testify. The
defendant thereafter never raised the particular rele-
vancy objection that he now asserts on appeal regarding
whether the materials relied on by Stephenson were
associated with the crimes at issue in this case. Because
the defendant cannot be heard on an evidentiary claim
that was never raised before or decided by the trial
court, we decline to review this aspect of his claim
on appeal.
B
Finally, we turn to the defendant’s argument that
Stephenson’s testimony was admitted in violation of
the defendant’s rights under the confrontation clause.
The defendant argues that because Stephenson’s testi-
mony was based entirely on his review of Petillo’s ballis-
tic photographs and report, Petillo was, in effect, the
witness who the defendant had a right to confront. We
are not persuaded that Stephenson’s testimony violated
the defendant’s constitutional rights under the confron-
tation clause. We have already discussed the intersec-
tion between the confrontation clause and the
admissibility of hearsay statements in criminal cases in
part I B of this opinion. In short, hearsay statements
that are deemed testimonial in nature are admissible
in a criminal prosecution only if the declarant is both
unavailable for trial and the defendant has had a prior
opportunity to cross-examine the declarant regarding
those statements. See Crawford v. Washington, supra,541 U.S. 68.
‘‘Two cases decided by the United States Supreme
Court after Crawford apply the confrontation clause in
the specific context of scientific evidence. In Melendez-
Diaz v. Massachusetts, supra, 557 U.S. 310–11, the court
held that certificates signed and sworn to by state foren-
sics analysts, which set forth the laboratory results of
the drug tests of those analysts and which were admit-
ted into evidence in lieu of live testimony from the
analysts themselves, were testimonial within the mean-
ing of Crawford. In so concluding, the court reasoned
that: (1) the certificates clearly were a sworn and sol-
emn declaration by the analysts as to the truth of the
facts asserted; (2) under Massachusetts law the sole
purpose of the affidavits was to provide prima facie
evidence of the composition, quality, and the net weight
of the analyzed substance; and (3) the court could safely
assume that the analysts were aware of the affidavits’
evidentiary purpose, since that purpose—as stated in
the relevant state-law provision—was reprinted on the
affidavits themselves. . . . In Bullcoming v. New Mex-
ico, [supra, 564 U.S. 652], the court held that the con-
frontation clause also does not permit the prosecution
to introduce a forensic laboratory report containing a
testimonial statement by an analyst, certifying to the
results of a blood alcohol concentration test he per-
formed, through the in-court testimony of another sci-
entist who did not sign the certification or perform or
observe the test reported in the certification.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Buckland, 313 Conn. 205, 213–14, 96 A.3d 1163 (2014),
cert. denied, U.S. , 135 S. Ct. 992, 190 L. Ed. 2d
837 (2015). In short, an accused has the right ‘‘to be
confronted with the analyst who made the certification,
unless that analyst is unavailable at trial, and the
accused had an opportunity, pretrial, to cross-examine
that particular scientist.’’ Bullcoming, supra, 652.
Melendez-Diaz and Bullcoming, however, addressed
only the admission of statements in forensic reports
either without any accompanying testimony by the ana-
lyst or scientist that prepared them or through a surro-
gate who lacked direct involvement in the preparation
of the report. Neither directly addressed the situation
now presented, in which a potentially testimonial foren-
sic report is not itself offered or admitted into evidence,
but rather was utilized by another expert witness to
form an independent opinion. See id., 673 (Sotomayor,
J., concurring) (‘‘[w]e would face a different question
if asked to determine the constitutionality of allowing
an expert witness to discuss others’ testimonial state-
ments if the testimonial statements were not themselves
admitted as evidence’’). Although the United States
Supreme Court had an opportunity to clarify this aspect
of its confrontation clause jurisprudence in Williams
v. Illinois, 567 U.S. 50, 132 S. Ct. 2221, 183 L. Ed. 2d
89 (2012), that case yielded multiple opinions by the
court, none of which, for the reasons we explain, is
controlling here.
The issue in Williams was whether a defendant’s
confrontation clause rights were violated by the admis-
sion of testimony from a police laboratory analyst who
had reviewed and compared a DNA profile prepared
by an outside laboratory from vaginal swabs taken from
the victim and matched it with a DNA profile in the
state’s DNA database that was produced from a sample
of the defendant’s blood in an unrelated case. Id., 56–57,
59. The United States Supreme Court upheld the trial
court’s admission of the testimony. Id., 57–58. Although
a majority of the court concluded that the expert’s testi-
mony did not violate the confrontation clause, they did
not agree as to the rationale. A plurality of four justices,
Justice Alito, joined by Chief Justice Roberts, Justice
Kennedy, and Justice Breyer, concluded that the con-
frontation clause was not violated because the outside
laboratory’s report was not used to prove the truth of
the matter asserted therein and, thus, was not hearsay.
Id. Alternatively, those justices concluded that the
report was not testimonial in nature because it was
produced before any suspect was identified, and, thus,
its primary purpose was not to obtain evidence to be
used against the defendant. Id., 58. A fifth justice, Justice
Thomas, agreed with the plurality’s disposition of the
case, and with its alternative conclusion that the report
was not testimonial in nature.10 Id., 103–104. In conclud-
ing that the report was not testimonial in nature, how-
ever, Justice Thomas focused on the report’s lack of
formality and solemnity, and specifically rejected the
plurality’s reliance on the ‘‘primary purpose test’’ to
determine whether the report was testimonial in nature.
Id., 111, 113–18. Thus, the plurality opinion and the
opinion by Justice Thomas cannot be read together
to provide one analytical path to employ in deciding
whether a particular forensic report may be considered
testimonial in nature.11
‘‘When a fragmented [United States Supreme] Court
decides a case and no single rationale explaining the
result enjoys the assent of five Justices, the holding of
the Court may be viewed as that position taken by
those Members who concurred in the judgments on the
narrowest grounds . . . .’’ (Internal quotation marks
omitted.) Marks v. United States, 430 U.S. 188, 193, 97
S. Ct. 990, 51 L. Ed. 2d 260 (1977). The Marks test has
been explained by the United States Court of Appeals
for the District of Columbia Circuit as follows: ‘‘[O]ne
opinion can be meaningfully regarded as narrower than
another—only when one opinion is a logical subset
of other, broader opinions. In essence, the narrowest
opinion must represent a common denominator of the
Court’s reasoning; it must embody a position implicitly
approved by at least five Justices who support the judg-
ment.’’ (Internal quotation marks omitted.) King v.
Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991), cert. denied
sub nom. King v. Ridley, 505 U.S. 1229, 112 S. Ct. 3054,
120 L. Ed. 2d 920 (1992). Given that no readily applicable
rationale for the court’s holding in Williams obtained
the approval of a majority of the justices, its preceden-
tial value seems, at best, to be confined to the distinct
factual scenario at issue in that case.12 In any event,
our ultimate resolution of the present appeal is not
inconsistent with the overall result reached in
Williams.
Turning to the present case, even assuming that Pet-
illo’s report contained testimonial hearsay,13 there sim-
ply is no merit to the defendant’s argument that his
right to confrontation was implicated in the present
case by the admission of Stephenson’s opinion testi-
mony, despite Stephenson’s opinion having been formu-
lated in part by his review of Petillo’s ballistic report. As
our Supreme Court indicated in Buckland, in Crawford,
Melendez-Diaz, and Bullcoming, the court’s violation
of the defendant’s confrontation rights occurred
because it admitted certain inculpatory statements that
were testimonial in nature and were made against the
defendant by an individual who was absent at the trial.
See State v. Buckland, supra, 313 Conn. 215–16. Those
same circumstances simply are not present here. In
the present case, the only inculpatory conclusion or
statement regarding the ballistic evidence presented to
the jury was made by Stephenson in court. At no point
did the state seek to introduce Petillo’s report or any
statement or opinion by Petillo regarding the ballistic
evidence through Stephenson. Stephenson obviously
was fully available for cross-examination at trial regard-
ing his own scientific conclusions and the factual basis
underpinning his opinion. Indeed, defense counsel not
only questioned Stephenson about the allegedly subjec-
tive nature of the science involved but was also able
to reinforce to the jury the fact that Stephenson’s opin-
ion was not formulated on the basis of his own physical
examination of the ballistic evidence, and was instead
based on his review of photographs and information
in other reports. The same attack on the reliability of
Stephenson’s opinion was repeated by the defense dur-
ing closing arguments.
There is no dispute that an accused has the right to
confront the analyst who states a conclusion drawn
from scientific evidence or certifies the results of scien-
tific tests in a report prepared for trial because such
statements qualify as testimonial statements subject to
the confrontation clause as set forth in Melendez-Diaz
and its progeny. To the extent, however, that, as in
the present case, the defendant was afforded a full
opportunity to confront the declarant of the actual sci-
entific conclusions admitted against him, any claim of
a confrontation clause violation simply is not per-
suasive.14
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant’s conviction of the charges of conspiracy to commit bur-
glary in the first degree and conspiracy to commit robbery in the first degree
was vacated.
2
See footnote 1 of this opinion.
3
In so ruling, the court made the following statement: ‘‘Well, the reason
I had wanted to hear or put on the record information about CLEAR was
because I realized after the hearing, I knew what it was, but there was no
record of what it was. Now, with that on the record, I am going to allow
the former testimony.’’
4
Although the court did not provide specific factual findings or legal
analysis regarding the state’s efforts, by deciding to admit Parks’ former
testimony, it necessarily determined that the state had demonstrated suffi-
cient and reasonable efforts to secure her availability for trial. Absent some
indication to the contrary, we assume that the trial court acted properly in
accordance with established legal principles. See State v. Marrero, 59 Conn.
App. 189, 191–92, 757 A.2d 594, cert. denied, 254 Conn. 934, 761 A.2d 756(2000).
5
Although the state argues that this aspect of the defendant’s claim is
unpreserved and raised for the first time on appeal, we conclude that the
defendant adequately raised the confrontation argument in his pretrial
motion to exclude Parks’ former testimony, which was adjudicated at trial.
6
The state indicated on the record before the trial court that it began
discussing Petillo’s death and the possibility of Stephenson’s testimony with
the defense during jury selection. The state also explained that it had sought
to have the forensic lab retest the evidence, but that the lab had indicated
it would not be able to comply prior to trial.
7
Section 7-4 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) Opinion testimony by experts. An expert may testify in the form
of an opinion and give reasons therefor, provided sufficient facts are shown
as the foundation for the expert’s opinion.
‘‘(b) Bases of opinion testimony by experts. The facts in the particular
case upon which an expert bases an opinion may be those perceived by or
made known to the expert at or before the proceeding. The facts need not
be admissible in evidence if of a type customarily relied on by experts in
the particular field in forming opinions on the subject. The facts relied on
pursuant to this subsection are not substantive evidence, unless otherwise
admissible as such evidence. . . .’’
8
The court did not state the factual or legal basis of its ruling on the record.
9
Section 4-1 of the Connecticut Code of Evidence provides: ‘‘ ‘Relevant
evidence’ means evidence having any tendency to make the existence of any
fact that is material to the determination of the proceeding more probable
or less probable than it would be without the evidence.’’
10
Justice Thomas did not agree with the plurality’s conclusion that the
report was not hearsay because it was not offered for the truth of the matter
asserted therein. Williams v. Illinois, supra, 567 U.S. 104.
11
The four dissenting justices concluded that the expert testimony was
‘‘functionally identical to the surrogate testimony’’ in Bullcoming and that
Bullcoming controlled the outcome. (Internal quotation marks omitted.)
Williams v. Illinois, supra, 567 U.S. 124.
12
Courts in a number of other jurisdictions have struggled with how to
apply the Williams holding. See, e.g., Washington v. Griffin, Docket No.
15-3831-pr, 2017 WL 5707606, *9 (2d Cir. November 28, 2017) (noting that
‘‘neither of the plurality’s rationales commanded a majority’’); State v.
Michaels, 219 N.J. 1, 31, 95 A.3d 648 (‘‘[w]e find Williams’s force, as prece-
dent, at best unclear’’), cert. denied, U.S. , 135 S. Ct. 761, 190 L. Ed.
2d 635 (2014); State v. Dotson, 450 S.W.3d 1, 68 (Tenn. 2014) (‘‘[t]he [United
States] Supreme Court’s fractured decision in Williams provides little guid-
ance and is of uncertain precedential value because no rationale for the
decision—not one of the three proffered tests for determining whether an
extrajudicial statement is testimonial—garnered the support of a majority
of the Court’’), cert. denied, U.S. , 135 S. Ct. 1535, 191 L. Ed. 2d 565(2015); State v. Griep, 361 Wis. 2d 657, 680, 863 N.W.2d 567 (2015) (‘‘[a]s
no opinion overlaps with another, the Marks narrowest grounds rule does
not apply to [Williams]’’), cert. denied, U.S. , 136 S. Ct. 793, 193 L.
Ed. 2d 709 (2016).
13
For purposes of our analysis, we will presume without deciding that
the ballistic report prepared by Petillo in this matter, which was never
introduced into evidence or otherwise made a part of the record in this
case, contained certifications or other statements that would be deemed
testimonial in accordance with Crawford. Although no appellate court in
this state squarely has addressed the extent to which contents of a ballistic
report are testimonial statements for purposes of confrontation clause analy-
sis, courts in other jurisdiction have treated them as such. See, e.g., Ayala
v. Saba, 940 F. Supp. 2d 18, 20 (D. Mass. 2013); Conners v. State, 92 So. 3d
676, 684 (Miss. 2012); Miller v. Commonwealth, Docket No. 1353-08-2, 2009
WL 2997079, *2 (Va. App. September 22, 2009).
14
Our conclusion is in accord with the decision of the Wisconsin Supreme
Court, which considered a similar issue in State v. Griep, supra, 361 Wis.
2d 682–83, 691 (holding right of confrontation not violated where expert
witness reviewed another analyst’s forensic test results in forming indepen-
dent opinion relayed at trial).