State v. Walker , 180 Conn. App. 291 ( 2018 )

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STATE OF CONNECTICUT v. EUGENE L. WALKER
(AC 39797)
Alvord, Kahn and Bear, Js.
Syllabus
Convicted of the crimes of felony murder, manslaughter in the first degree
with a firearm, attempt to commit robbery in the first degree and criminal
possession of a pistol or revolver, the defendant appealed. The defen-
dant’s conviction stemmed from his alleged involvement with that of his
codefendant, A, in the shooting death of the victim during an attempted
robbery in a parking lot. The defendant, who was wearing a bandana
and carrying a revolver, and A’s cousin, D, had approached the victim’s
Acura, and a struggle ensued during which the victim was shot. A ban-
dana that the police recovered from the Acura, the victim’s bloodstain,
and known samples that included buccal swabs from the defendant, A
and D were sent to a state laboratory, where they were analyzed by a
supervisory forensics examiner, H, and the laboratory’s known pro-
cessing group. H determined that the defendant’s DNA profile matched
the DNA found on the bandana. H testified about her findings and the
DNA profile that another analyst in the laboratory had generated from
the defendant’s buccal swab. M, who knew the defendant only by a
nickname, identified the defendant during her testimony, which
occurred after she previously had met with the prosecutor in his office.
During a discussion about the defendant in the prosecutor’s office, M
had identified the defendant by his nickname from a photograph that
was on the prosecutor’s desk. On appeal, the defendant claimed, inter
alia, that the trial court violated his right to confrontation by permitting
H to testify about a DNA sample that had been processed by a different
analyst. The defendant also claimed that the trial court improperly
denied his motion to sever his trial from that of A after the trial court had
admitted into evidence certain statements of A under the coconspirator
exception to the rule against hearsay. Held:
1. The defendant could not prevail on his unpreserved claim that the trial
court violated his right to confrontation by allowing H to testify about
a DNA sample that was processed by another analyst in the same labora-
tory without requiring that analyst to testify; H, who had conducted the
critical analysis and made the findings that connected the defendant’s
DNA to the DNA found on the bandana, testified about the standard
operating procedures of the laboratory, including the manner in which
the known samples were processed and verified, she relied on her
personal knowledge of the procedures performed by the analysts in the
known processing group in reaching her own conclusions, her analysis
was reviewed by another analyst at the laboratory who signed her report,
and even if H’s testimony about the processing of the defendant’s known
profile was considered a critical stage of the analysis or chain of custody,
it did not implicate the confrontation clause because H was available
and testified extensively on cross-examination.
2. The defendant’s claim that the trial court violated his right to a fair trial
by declining to grant his motion for a mistrial or to strike M’s in-court
identification of him was unavailing:
a. M’s pretrial identification of the defendant in the prosecutor’s office
did not result from an unnecessarily suggestive identification procedure
and, thus, her subsequent in-court identification of the defendant did
not violate his due process rights; M was not an eyewitness to the crimes
at issue, she identified the defendant in the prosecutor’s office, and
then in court, as the person she knew by a certain nickname, and the
prosecutor did not ask M to identify the individual in the defendant’s
photograph, but instead, M’s identification occurred spontaneously as
a result of her familiarity with the individual she knew by the nickname,
and not as the result of an arranged procedure by law enforcement.
b. The trial court did not abuse its discretion in declining to strike
M’s in-court identification of the defendant or to declare a mistrial as
sanctions for the state’s failure to disclose M’s pretrial identification of
the defendant’s photograph in the prosecutor’s office: the defendant did
not demonstrate that the prosecutor violated the rule of practice (§ 40-
13A) that requires the prosecuting authority, upon written request of a
defendant, to provide photocopies of all statements, law enforcement
reports and affidavits within its possession concerning the offense
charged, as the record did not indicate that the defendant made a written
request as required by § 40-13A, and M’s comment to the prosecutor
made prior to trial identifying the defendant was not a discoverable
statement pursuant to § 40-13A because M’s comment to the prosecutor
was oral and the record did not contain evidence that it had been
recorded, and even if the prosecutor improperly withheld M’s statement
from defense counsel, the defendant did not show any prejudice, as the
jury reasonably could have found that M knew the defendant prior to
the victim’s murder.
3. The defendant could not prevail on his claim that the trial court erred in
admitting certain hearsay testimony under the coconspirator exception
to the hearsay rule, which was based on his claim that the court improp-
erly concluded that a conspiracy existed when it admitted that testimony
under the coconspirator exception; that court did not err in its prelimi-
nary determination that a conspiracy existed, as the court admitted the
hearsay testimony subject to the state’s later admission of sufficient
foundational evidence and the state later introduced the necessary con-
necting facts, the record did not indicate that the court improperly
considered the hearsay statements in its analysis, and although the court
mentioned coconspirator hearsay statements in addition to independent
evidence when it discussed whether the state had established the exis-
tence of a conspiracy by a preponderance of the evidence, the court
based its ruling only on independent evidence.
4. The defendant could not prevail on his unpreserved claim that the trial
court improperly denied his motion to sever his trial from that of A,
which was based on his assertion that evidence was admitted that would
not have been admissible against him at a separate trial; although the
trial court clearly raised potential joint trial issues with counsel, defense
counsel reassured the trial court that such problems would not arise,
the defendant was not substantially prejudiced by the admission of A’s
statements so as to require a separate trial, as certain of A’s statements
were admissible against the defendant under the coconspirator excep-
tion to the hearsay rule, and the court’s curative instructions to the jury
did not identify the defendant but were directed toward A.
5. The trial court did not abuse its discretion in admitting into evidence a
photograph of the bandana, the bandana and the DNA evidence that
was derived from it; the police officer who testified that the photograph
was a fair and accurate representation of what she personally had
observed in the Acura was a competent witness, as her testimony pro-
vided a proper foundation for the admission of the photograph, and
there was a sufficient chain of custody for the admission of the bandana
and, by extension, the DNA evidence derived from the bandana.
6. The defendant’s conviction of felony murder and manslaughter in the first
degree violated the constitutional provision against double jeopardy, as
the conviction of both charges arose from the single act of killing the
victim; accordingly, the conviction of manslaughter in the first degree
was vacated and the case was remanded to resentence the defendant.
Argued September 7, 2017—officially released March 20, 2018
Procedural History
Substitute information charging the defendant with
the crimes of felony murder, manslaughter in the first
degree with a firearm, manslaughter in the first degree,
attempt to commit robbery in the first degree, conspir-
acy to commit robbery in the first degree, carrying a
pistol without a permit and criminal possession of a
pistol or revolver, brought to the Superior Court in the
judicial district of Ansonia-Milford, where the court,
Iannotti, J., granted the state’s motion to consolidate
the case with the case of a codefendant; thereafter,
the state filed a substitute information charging the
defendant with the crimes of felony murder, manslaugh-
robbery in the first degree, conspiracy to commit rob-
bery in the first degree, carrying a pistol without a
permit and criminal possession of a pistol or revolver;
subsequently, the matter was tried to the jury before
Markle, J.; thereafter, the court, Markle, J., denied the
defendant’s motions to sever and for a mistrial; subse-
quently, the court, Markle, J., granted the defendant’s
motion for a judgment of acquittal as to the charge of
carrying a pistol without a permit; verdict of guilty of
felony murder, manslaughter in the first degree with a
firearm, attempt to commit robbery in the first degree
and criminal possession of a pistol or revolver; there-
after, the court, Markle, J., denied the defendant’s
motions for a judgment of acquittal and a new trial,
and rendered judgment in accordance with the verdict,
from which the defendant appealed. Reversed in part;
judgment directed; further proceedings.
Damian K. Gunningsmith, with whom were John
L. Cordani, Jr., and, on the brief, Moira L. Buckley,
assigned counsel, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Kevin D. Lawlor, state’s attor-
ney, and Cornelius P. Kelly, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
KAHN, J. The defendant, Eugene L. Walker, appeals
from the judgment of conviction, rendered following a
jury trial, of felony murder in violation of General Stat-
utes § 53a-54c; manslaughter in the first degree with a
firearm in violation of General Statutes § 53a-55a (a);
attempt to commit robbery in the first degree in viola-
tion of General Statutes §§ 53a-49 (a) (2) and 53a-134
(a) (2); and criminal possession of a pistol or revolver
in violation of General Statutes § 53a-217c (a) (1). The
defendant claims that the trial court (1) violated his
right to confrontation by permitting a laboratory analyst
to testify regarding a known DNA sample processed by
another analyst in the same laboratory; (2) violated his
right to due process when it declined to either strike
certain testimony or grant the defendant’s motion for
a mistrial; (3) erred in admitting certain testimony under
the coconspirator exception to the hearsay rule; (4)
erred in denying his motion to sever his trial from that
of his codefendant; (5) erred in admitting certain evi-
dence at trial; and (6) violated double jeopardy by con-
victing him of both manslaughter and felony murder.
We affirm the judgment in part, and we reverse the
judgment in part.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On the night of
October 28, 2012, Anthony Adams, the codefendant in
this consolidated trial, telephoned Alexis Morrison to
ask if she knew ‘‘somebody that could sell him some
weed.’’ Morrison called Neville Malacai Registe, the vic-
tim, to arrange for him to meet with Adams in the
parking lot of her West Haven residence. When the
victim received Morrison’s telephone call, he was with
his friend, Stephon Green, at his mother’s home in New
Haven. After some time, the victim and Green left in
the victim’s Acura. As they approached the designated
parking lot, the victim called Morrison. Morrison then
telephoned Adams to tell him that the victim ‘‘was
there.’’ Adams replied that he had already left because
the victim ‘‘took too long . . . and that Day-Day and
GZ [were] going to get the weed.’’ ‘‘Day-Day’’ and ‘‘GZ’’
were nicknames for Daquane Adams, who is Anthony
Adams’ cousin, and the defendant, respectively, both
of whom Morrison knew.
When the victim and Green arrived in the parking
lot, the victim backed his car into a parking space.
Green, who was rolling a marijuana joint in the front
passenger seat, looked up and noticed two men
approaching the Acura. He returned his attention to his
task, and the victim opened the driver’s door to talk to
one of the men. The man, who was wearing a black
bandana and who was later identified as the defendant,
held a revolver inside the car and said, ‘‘run it,’’ meaning,
‘‘give me it. It’s a robbery . . . .’’ A physical altercation
ensued. The second man, later identified as Daquane
Adams, stepped away from the Acura and placed a cell
phone call to someone. A Toyota arrived, and a third
man exited that car and asked the defendant for the
gun.1 The struggle over the gun continued inside the
victim’s Acura, and someone knocked Green into the
backseat. Daquane Adams and the third man pulled the
defendant out of the car and, as Green was climbing
back into the front passenger seat, a shot was fired.
Green heard the victim say, ‘‘oh, shit,’’ and then heard
a second shot.
The defendant, Daquane Adams, and the third man
got in the Toyota and drove toward the parking lot exit.
With the victim slumped over in the driver’s seat, Green
pursued the Toyota. He caught up to it at the end of
the street and rammed the Acura into the back of the
Toyota. The victim’s Acura was disabled, but the Toyota
was able to be driven away. The victim died of a gunshot
wound to his head.
The defendant’s case was consolidated for trial with
that of his codefendant, Anthony Adams.2 Following
trial, the jury found the defendant guilty of felony mur-
der, manslaughter in the first degree with a firearm,
attempt to commit robbery in the first degree, and crimi-
nal possession of a pistol or revolver. The jury found
him not guilty of the charge of conspiracy to commit
robbery. The court imposed a total effective sentence
of forty-five years incarceration followed by ten years
special parole. This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that he was deprived of
his right to confrontation under the federal constitution
when the court permitted a forensic science examiner
to testify about the results of a comparison she made
between (1) a DNA profile she generated from crime
scene evidence and (2) a DNA profile another analyst
in the laboratory generated from the defendant’s buccal
swab, without requiring the other analyst to testify.3
We disagree.
The following additional facts that the jury reason-
ably could have found are relevant to this claim. The
police recovered a black bandana from the Acura and
sent the bandana and the victim’s bloodstain to the
state’s Division of Scientific Services laboratory for
analysis. The police also obtained and sent additional
known samples to the laboratory, including buccal
swabs from the defendant, his codefendant and
Daquane Adams. Although Heather Degnan, a supervi-
sory forensics examiner, visually inspected all of the
samples, including the buccal swab obtained from the
defendant, per standard laboratory procedure the
known samples were processed by the laboratory’s
‘‘known processing group’’ (group). Degnan processed
the bandana using the standard forensic DNA typing
techniques used in the laboratory. She isolated DNA
from two sites on the bandana and generated DNA
profiles (evidentiary profiles) that contained a mixture
of DNA from at least two contributors, one of which
was deemed a major contributor and the other, a minor
contributor. An analyst in the group generated DNA
profiles from the known samples (known profiles) and
sent them to Degnan. Degnan compared the evidentiary
profiles she had extracted from the DNA on the bandana
with the known profiles. Degnan’s analysis determined
that the defendant was included as a major contributor
to the DNA that was on the bandana.4 She also entered
the evidentiary profile of the major contributor to the
DNA found on the bandana into the Connecticut and
national DNA databases5 and obtained a ‘‘hit’’ for the
defendant because his DNA profile had been entered
due to a prior felony conviction. Degnan prepared a
report summarizing her findings.6
At trial, Tammy Murray, the detective who took the
buccal swab from the defendant, testified that she
obtained a subpoena for nontestimonial evidence and
testified about the established procedure she followed
to take the sample from the defendant. The buccal swab
itself was introduced into evidence along with the ban-
dana. After Murray’s testimony, the state called Degnan
to testify about her analysis and findings. She first testi-
fied about the procedures she followed when analyzing
the DNA found on the bandana. Degnan explained that
she swabbed the bandana and generated an evidentiary
profile from each side of the bandana, and that the
group processed and generated the known profiles from
the defendant’s buccal swab and the victim’s blood-
stain. According to Degnan, this division of tasks took
place according to ‘‘standard operating procedure.’’ The
group then provided the known profiles to Degnan for
comparison with the evidentiary profiles.
Prior to the admission of Degnan’s findings, defense
counsel objected to Degnan’s testimony and the admis-
sion of her report on the grounds that Degnan was not
competent to testify about the known profiles and that
there was a lack of foundation for this evidence. Specifi-
cally, the defendant’s counsel objected because Degnan
had not been formally qualified as an expert. Counsel
for Anthony Adams objected on the ground that Degnan
did not process the known samples herself but, rather,
obtained the results ‘‘second hand.’’7 The court, Markle,
J., overruled the objections and allowed Degnan to tes-
tify as to the results of her analysis.
Degnan testified that, on the basis of her analysis and
comparison, the defendant was a major contributor to
the DNA found on both sides of the bandana. On cross-
examination, Degnan elaborated that she had ‘‘exam-
ined the known samples and then sent those samples
to the known processing group for extraction and ampli-
fication,’’ but had not been present for that stage of the
process. She was, however, familiar with the group’s
functions. She noted that the laboratory’s use of known
control samples ensured that the machines used in the
testing processes were working properly. She further
explained that whenever a DNA profile is generated,
including a known profile, it is analyzed independently
by a second analyst, who also reviews the paperwork
associated with that analysis to determine if the initial
analyst generated the profile properly. Degnan’s analy-
sis of both the evidentiary and known profiles was
independently reviewed by Dahong Sun, another DNA
analyst at the laboratory, who cosigned Degnan’s
report. The court admitted Degnan’s report8 containing
her findings but redacted it to eliminate references to
the known samples of the other defendants, Anthony
Adams and Daquane Adams.
On appeal, the defendant claims that he was deprived
of his right to confrontation under the sixth amendment
to the federal constitution when the court permitted
Degnan to testify about the results of her comparison
of the DNA profiles, without requiring an analyst from
the known processing group to testify. The state argues
that the defendant’s confrontation claim was not pre-
served because it was not raised at trial and was not
subsumed within the defendant’s evidentiary objections
regarding lack of competence and foundation.9 The
state further claims that had the defendant properly
presented his claim as one of confrontation that was
based on testimonial hearsay, as opposed to a challenge
to Degnan’s competence to render an opinion regarding
the known profile, the state may have chosen to call
the known processing group analyst, assuming he or
she was available to testify.10 The state argues that rais-
ing the confrontation issue for the first time on appeal
amounts to an ambush on the state and the trial court.
Nonetheless, as the state concedes, our Supreme Court
has reviewed a confrontation claim under the bypass
rule of State v. Golding, 213 Conn. 233, 567 A.2d 823
(1989), even when there was a claim of waiver. State
v. Smith, 289 Conn. 598, 619, 960 A.2d 993 (2008); see
also State v. Holley, 327 Conn. 576, 590, 175 A.3d 514
(2018). We will, therefore, review this unpreserved
claim pursuant to Golding, as modified by In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
‘‘[A] defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following
conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitu-
tional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . .
exists and . . . deprived the defendant of a fair trial;
and (4) if subject to harmless error analysis, the state
has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt.’’
(Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 213 Conn. 239–40. The defendant claims that
the court violated his right to confrontation by allowing
Degnan to testify about the results of the comparison
she made, without anyone from the known processing
group being called to testify. Because Degnan, the ana-
lyst who conducted the critical analysis and made the
resulting findings, testified and was subject to cross-
examination, we conclude that there was no confronta-
tion clause violation, and thus this claim fails under the
third prong of Golding. See id., 240.
The sixth amendment to the United States constitu-
tion provides in relevant part: ‘‘In all criminal prosecu-
tions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him. . . .’’ The
sixth amendment right of confrontation extends to the
states through the due process clause of the fourteenth
amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.
Ct. 1065, 13 L. Ed. 2d 923 (1965).
‘‘In Crawford v. Washington, [541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004)], the [United States]
Supreme Court substantially revised its approach to
confrontation clause claims. Under Crawford, testimo-
nial hearsay is admissible against a criminal defendant
at trial only if the defendant had a prior opportunity
[to cross-examine the witness who is otherwise]
unavailable to testify at trial. Id., 68. In adopting this
categorical approach, the court overturned existing
precedent that had applied an open-ended balancing
[test] . . . conditioning the admissibility of out-of-
court statements on a court’s determination of whether
the proffered statements bore adequate indicia of relia-
bility. . . . Although Crawford’s revision of the court’s
confrontation clause jurisprudence is significant, its
rules govern the admissibility only of certain classes
of statements, namely, testimonial hearsay.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Buckland, 313 Conn. 205, 212–13, 96 A.3d 1163 (2014),
cert. denied, U.S. , 135 S. Ct. 992, 190 L. Ed.
2d 837 (2015). Even where the subject statement is
testimonial hearsay, ‘‘[t]he [confrontation] [c]lause
does not bar admission of a statement so long as the
declarant is present at trial to defend or explain it.’’
Crawford v. Washington, supra, 60 n.9.
In the context of laboratory tests, ‘‘the analysts who
write reports that the prosecution introduces must be
made available for confrontation . . . .’’ Bullcoming v.
New Mexico, 564 U.S. 647, 661, 131 S. Ct. 2705, 180 L.
Ed. 2d 610 (2011). Nevertheless, ‘‘it is not the case
. . . that anyone whose testimony may be relevant in
establishing the chain of custody, authenticity of the
sample, or accuracy of the testing device, must appear
in person as part of the prosecution’s case.’’ Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 311 n.1, 129 S. Ct.
2527, 174 L. Ed. 2d 314 (2009). Although ‘‘[i]t is the
obligation of the prosecution to establish the chain of
custody . . . this does not mean that everyone who
laid hands on the evidence must be called. . . . [G]aps
in the chain [of custody] normally go to the weight of
the evidence rather than its admissibility.’’ (Citations
omitted; internal quotation marks omitted.) Id. As the
United States Court of Appeals for the Second Circuit
recently noted, ‘‘the Supreme Court has never held that
the [c]onfrontation [c]lause requires an opportunity to
cross-examine each lab analyst involved in the process
of generating a DNA profile and comparing it with
another . . . .’’ Washington v. Griffin, 876 F.3d 395,
407 (2d Cir. 2017); see also State v. Buckland, supra,
313 Conn. 214 (‘‘neither Melendez-Diaz nor Bullcoming
require every witness in the chain of custody to testify’’).
Generally, the ‘‘rules of evidence . . . permit experts
to express opinions based on facts about which they
lack personal knowledge . . . .’’ Williams v. Illinois,
567 U.S. 50, 69, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012).11
In the present case, Degnan, the analyst who con-
ducted the critical analysis and made the findings that
connected the defendant’s DNA to the DNA found on
the bandana, testified and was subject to cross-exami-
nation. Degnan explained the procedures she followed
in processing the DNA found on the bandana and com-
paring it to the known profiles. It was Degnan, and not
the analyst from the group, who conducted the forensic
analysis of the known profiles and the evidentiary pro-
file and determined that the defendant’s DNA profile
matched the DNA found on the bandana. See People v.
Corey, 52 Misc. 3d 987, 992, 36 N.Y.S.3d 354 (2016)
(‘‘Nothing . . . supports the conclusion that the ana-
lysts involved in the preliminary testing stages, specifi-
cally, the extraction, quantification or amplification
stages, are necessary witnesses . . . . Rather, it is the
generated numerical identifiers and the calling of the
alleles at the final stage of DNA typing that effectively
accuses defendant of his role in the crime charged
. . . .’’ [Citations omitted; internal quotation marks
omitted.]). Although Degnan did not run the machines
that extracted the DNA profiles from the known sam-
ples, she was fully aware of, and testified to, the stan-
dard operating procedures of the laboratory, including
the manner in which the known samples are processed
and verified. The defendant’s known profile was not
inherently inculpatory. It was the forensic analysis con-
ducted by Degnan that made it so. Degnan was exten-
sively cross-examined about her analysis and findings.
She was specifically questioned about the processing
of the known samples and her lack of participation in
the generation of the known profiles. She was the pri-
mary analyst who made the findings and prepared the
report, and was available to defend and explain her
conclusion that the two DNA profiles matched.
Nevertheless, in support of his contention that his
right to confrontation was violated, the defendant cites
Melendez-Diaz v. Massachusetts, supra, 557 U.S. 305.
This case, however, can be readily distinguished. In
Melendez-Diaz, the Supreme Court addressed the issue
of whether a petitioner’s right of confrontation was
violated when the trial court admitted certificates of
analysis reporting the results of a laboratory test, with-
out the analysts who had prepared and signed the certif-
icates appearing to testify. Id., 308–309. The court held
that the notarized certificates were ‘‘a solemn declara-
tion or affirmation made for the purpose of establishing
or proving some fact’’; (internal quotation marks omit-
ted) id., 310; and thus, ‘‘[a]bsent a showing that the
analysts were unavailable to testify at trial and that
the petitioner had a prior opportunity to cross-examine
them,’’ the petitioner’s right to confrontation had been
violated. (Internal quotation marks omitted.) Id., 311.
In the present case, unlike in Melendez-Diaz, the analyst
who conducted the analysis to establish ‘‘some fact’’
and who prepared and signed the report, testified at
trial and was therefore available for cross-examination.
See Washington v. Griffin, supra, 876 F.3d 401, 405
(similarly distinguishing Melendez-Diaz in case where
analyst who testified had conducted DNA extraction of
evidentiary samples but not DNA extraction of defen-
dant’s buccal swab, which she utilized in her analysis
and conclusions).
Even if we assume, arguendo, that the processing of
the defendant’s known profile was considered a critical
stage of the analysis or chain of custody, the admission
of Degnan’s testimony referencing it did not implicate
the confrontation clause because Degnan was available
and testified extensively on cross-examination. This is
particularly important where, as here, the laboratory
testing functions are allocated among multiple employ-
ees. Although not determinative of the outcome of this
case, Williams v. Illinois, supra, 567 U.S. 50, informs
our opinion. See State v. Lebrick, 179 Conn. App. 221,
244, A.3d (‘‘[g]iven 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’’), cert. granted
on other grounds, 328 Conn. 912, A.3d (2018).
‘‘When lab technicians are asked to work on the produc-
tion of a DNA profile, they often have no idea what the
consequences of their work will be. In some cases, a
DNA profile may provide powerful incriminating evi-
dence against a person who is identified either before
or after the profile is completed. But in others, the
primary effect of the profile is to exonerate a suspect
who has been charged or is under investigation. The
technicians who prepare a DNA profile generally have
no way of knowing whether it will turn out to be incrimi-
nating or exonerating—or both.’’ Williams v. Illinois,
supra, 85. Here, only one of the three known profiles
matched the crime scene evidence; the known profiles
of Anthony Adams and Daquane Adams were elimi-
nated. ‘‘When the work of a lab is divided up in such
a way, it is likely that the sole purpose of each technician
is simply to perform his or her task in accordance with
accepted procedures.’’ Id.
Courts have consistently held that experts may rely
on other experts’ findings in reaching their own inde-
pendent conclusions. See State v. Hutchison, 482
S.W.3d 893, 914 (Tenn. 2016) (applying Williams to
admission of autopsy report prepared by nontestifying
medical examiner); see also Washington v. Griffin,
supra, 876 F.3d 395 (testifying analyst who conducted
comparisons of DNA profiles may rely on extractions
conducted by other analysts without violating confron-
tation clause). ‘‘When an expert testifies for the prose-
cution in a criminal case, the defendant has the
opportunity to cross-examine the expert about any
statements that are offered for their truth. Out-of-court
statements that are related by the expert solely for the
purpose of explaining the assumptions on which that
opinion rests are not offered for their truth and thus
fall outside the scope of the [c]onfrontation [c]lause.’’
Williams v. Illinois, supra, 567 U.S. 58. That is precisely
what occurred in this case when Degnan relied on her
personal knowledge of the procedures performed by the
analysts in the group in comparing the known profiles
to the evidentiary profile and reaching her own conclu-
sions. As she noted, all DNA profiles generated by each
analyst are independently reviewed by a second analyst.
‘‘[T]he knowledge that defects in a DNA profile may
often be detected from the profile itself provides a fur-
ther safeguard.’’ Id., 85. We conclude, therefore, that
the defendant’s right to confrontation was not violated
because Degnan, the primary analyst who performed
and supervised the generation and analysis of the DNA
profiles and resulting findings, testified and was avail-
able for cross-examination. Accordingly, the defen-
dant’s claim fails under the third prong of Golding.
II
The defendant next claims that the court erred by
declining either to strike Morrison’s in-court identifica-
tion of the defendant or to grant the defendant’s motion
for a mistrial. The defendant primarily argues that Mor-
rison’s identification of him was based on an unneces-
sarily suggestive procedure and, thus, by declining to
strike Morrison’s testimony or to declare a mistrial,
the court violated his due process right to a fair trial
pursuant to the fifth and fourteenth amendments to the
United States constitution, and article first, § 8, of the
Connecticut constitution.12 Additionally, the defendant
argues that the court erred by declining to strike Mor-
rison’s testimony or order a mistrial as a sanction pursu-
ant to Practice Book § 40-5, for the state’s failure to
disclose that Morrison had previously identified the
defendant in a photograph. We disagree.
We employ a plenary standard of review when analyz-
ing whether a defendant was deprived of his right to
due process. State v. Dickson, 322 Conn. 410, 423, 141
A.3d 810 (2016), cert. denied, U.S. , 137 S. Ct.
2263, 198 L. Ed. 2d 713 (2017). We review the court’s
decision to refuse to impose sanctions for abuse of
discretion. State v. Respass, 256 Conn. 164, 184, 770
A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151
L. Ed. 2d 392 (2001).
The following additional facts are relevant. Morrison
testified that Anthony Adams informed her that the
victim was taking too long to arrive at the parking lot,
so he was leaving and ‘‘Day-Day and GZ’’ would instead
purchase the marijuana. Morrison knew that Day-Day
was Daquane Adams, although she did not know his
last name, and that GZ was Daquane Adams’ friend,
whom she knew only by his nickname. She testified
that, at the time of the incident, she had known Daquane
Adams for a year or two, and had known the defendant
for ‘‘a couple of years’’ and saw him ‘‘once in a blue
moon.’’ The prosecutor asked her to identify GZ in the
courtroom, and Morrison identified the defendant.
Following a discussion outside the presence of the
jury, defense counsel made a motion for a mistrial and
a motion for severance on the grounds that Morrison’s
in-court identification of the defendant was inherently
suggestive due to the courtroom setting and that it was
a surprise, in that the state had never disclosed that
Morrison would identify the defendant. The court
denied the motions, reasoning that Morrison’s in-court
identification of the defendant was based on prior
knowledge and not based on any suggestive identifica-
tion procedure. With respect to Morrison’s ability to
identify the defendant, the prosecutor elaborated that
‘‘[l]ast week when [Morrison] was in my office . . . I
had photos on my desk of all the defendants . . . .
[W]e were talking about [the defendant], and there was
a photo on the side of . . . where she was sitting, of
[the defendant], she goes, ‘yeah, that’s GZ.’ ’’ Defense
counsel then asked that Morrison’s in-court identifica-
tion be stricken on the ground of late disclosure by the
state of Morrison’s ability to identify the defendant in
court. The court declined to strike Morrison’s tes-
timony.
A
On appeal, the defendant argues that Morrison’s in-
court identification of him was tainted by an unneces-
sarily suggestive identification procedure in the prose-
cutor’s office prior to trial. He argues that the procedure
was unnecessarily suggestive because the photographs
on the prosecutor’s desk were of the defendants, and
that because Anthony Adams and Daquane Adams were
well known to Morrison, ‘‘it would have been easy for
her to determine that the photograph of the person she
did not know was GZ. The nature and extent of [her]
prior knowledge of GZ was questionable.’’13 We are
not persuaded.
In the context of eyewitness identifications, when a
defendant claims ‘‘that an in-court identification fol-
lowed an unduly suggestive pretrial identification pro-
cedure that was conducted by a state actor . . . both
the initial identification and the in-court identification
may be excluded if the improper procedure created a
substantial likelihood of misidentification. . . . In
determining whether identification procedures violate
a defendant’s due process rights, the required inquiry
is made on an ad hoc basis and is two-pronged: first,
it must be determined whether the identification proce-
dure was unnecessarily suggestive; and second, if it is
found to have been so, it must be determined whether
the identification was nevertheless reliable based on
examination of the totality of the circumstances. . . .
If the trial court determines that there was no unduly
suggestive identification procedure, that is the end of
the analysis, and the identification evidence is admissi-
ble.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Dickson, supra, 322 Conn. 420–21.
On the basis of our plenary review, we conclude that
the defendant cannot prevail on his claim that Morrison
identified the defendant in the prosecutor’s office as
a result of an unnecessarily suggestive identification
procedure. Morrison was not an eyewitness to the
crime; instead, she identified the defendant from a pho-
tograph in the prosecutor’s office, and then in court,
as the person she knew as GZ. Although the only photo-
graphs in the prosecutor’s office were those of the
defendants, and although Morrison only saw the defen-
dant ‘‘once in a blue moon,’’ Morrison testified that at
the time of the incident, she had known the defendant
for, ‘‘[l]ike, a couple of years.’’ The prosecutor did not
ask Morrison to identify the individual in the defen-
dant’s photograph. Instead, she saw the photograph
during her discussion with the prosecutor about the
defendant, and told the prosecutor that it was a photo-
graph of GZ. Morrison’s identification of the defendant
occurred spontaneously as a result of her familiarity
with GZ, and not as the result of an arranged procedure
by law enforcement. See State v. Jones, 59 Conn. App.
762, 766, 757 A.2d 689 (2000) (‘‘[i]f an identification of
a defendant is done spontaneously and is not arranged
by the police, the identification is not tainted by state
action and due process rights are not violated’’), cert.
denied, 255 Conn. 924, 767 A.2d 99 (2001). Because
the pretrial identification occurrence was not unduly
suggestive, Morrison’s in-court identification of the
defendant did not violate the defendant’s due process
rights, and the court did not err in allowing that identifi-
cation to stand.
B
The defendant also argues that the court erred in
declining to strike Morrison’s identification testimony
or to declare a mistrial because of the prosecutor’s
violation of Practice Book § 40-13A,14 by failing to dis-
close Morrison’s identification of the defendant’s photo-
graph prior to trial. We are not persuaded.
Citing Practice Book § 40-5,15 the defendant argues
that if a party fails to comply with the rules of discovery,
the court may preclude the evidence at issue. Section
40-5 ‘‘gives broad discretion to the trial judge to fashion
an appropriate remedy for non-compliance with discov-
ery. . . . Generally, [t]he primary purpose of a sanc-
tion for violation of a discovery order is to ensure that
the defendant’s rights are protected, not to exact pun-
ishment on the state for its allegedly improper conduct.
As we have indicated, the formulation of an appropriate
sanction is a matter within the sound discretion of the
trial court. . . . In determining what sanction is appro-
priate for failure to comply with court ordered discov-
ery, the trial court should consider the reason why
disclosure was not made, the extent of prejudice, if
any, to the opposing party, the feasibility of rectifying
that prejudice by a continuance, and any other relevant
circumstances.’’ (Internal quotation marks omitted.)
State v. Hamlett, 105 Conn. App. 862, 873, 939 A.2d
1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008).
In the present case, the defendant has not demonstrated
that the court abused its discretion by declining to strike
Morrison’s testimony or to declare a mistrial as a rem-
edy for noncompliance with the discovery rules. First,
the defendant has not demonstrated that the prosecutor
violated Practice Book § 40-13A. As the state notes in
its brief, the record does not indicate that the defendant
made the written request required by § 40-13A. Addi-
tionally, Morrison’s comment to the prosecutor, made
prior to trial, identifying the defendant, was not a dis-
coverable ‘‘statement’’ pursuant to § 40-13A. The term
‘‘statement,’’ as used in that section, is defined as ‘‘(1)
A written statement made by a person and signed or
otherwise adopted or approved by such person; or (2)
A stenographic, mechanical, electrical, or other
recording, or a transcription thereof, which is a substan-
tially verbatim recital of an oral statement made by
a person and recorded contemporaneously with the
making of such oral statement.’’ Practice Book § 40-15.
Morrison’s comment to the prosecutor was oral, and
the record does not contain any evidence that it had
been recorded.
Moreover, even if we assume that the prosecutor
improperly withheld Morrison’s statement from defense
counsel, the court did not abuse its broad discretion in
declining to impose sanctions under these circum-
stances. At trial, the prosecutor explained that he had
not disclosed the identification because ‘‘it wasn’t a
situation where [Morrison] was identifying [the defen-
dant] other than a situation that she had known [him]
for a period of time. It wasn’t implicating him in the
crime or anything along those lines. It was more of a
situation of, yeah, I know who he is because I’ve been
with him and I’ve been in his company for a number
of years.’’ Further, although ‘‘the remedy of a mistrial
is permitted under the rules of practice, it is not favored.
[A] mistrial should be granted only as a result of some
occurrence upon the trial of such a character that it is
apparent to the court that because of it a party cannot
have a fair trial . . . and the whole proceedings are
vitiated. . . . In [its] review of the denial of a motion
for mistrial, [our Supreme Court has] recognized the
broad discretion that is vested in the trial court to decide
whether an occurrence at trial has so prejudiced a party
that he or she can no longer receive a fair trial.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Hamlett, supra, 105 Conn. App. 872. Because the jury
reasonably could have found that Morrison knew the
defendant prior to the incident that resulted in the vic-
tim’s murder, the defendant did not show that he was
prejudiced by Morrison’s identification of him. Under
these circumstances, the court did not abuse its discre-
tion by declining to strike Morrison’s identification testi-
mony or to declare a mistrial as sanctions against the
state.
III
The defendant next claims that the court erred in
admitting certain hearsay testimony under the cocon-
spirator exception to the hearsay rule.16 Specifically,
the defendant argues that the court improperly con-
cluded that a conspiracy existed when determining
whether to admit the testimony of Morrison, Daniels,
Green, and Jamila Bello, an acquaintance of Anthony
Adams, under the coconspirator exception to the hear-
say rule. We disagree.17
‘‘Statements made by coconspirators are recognized
in Connecticut as an exception to the general prohibi-
tion against hearsay. See State v. Vessichio, 197 Conn.
644, 653–60, 500 A.2d 1311 (1985), cert. denied, 475 U.S.
1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). However,
[b]efore such statements may be admitted, the trial
judge must make a preliminary determination that there
is sufficient independent evidence to establish the fol-
lowing: (1) that a conspiracy existed . . . (2) that the
conspiracy was still in existence at the time the state-
ment was made . . . (3) that the declarations were
made in furtherance of the conspiracy . . . and (4) that
both the declarant and the defendant participated in the
conspiracy . . . . The court must make its preliminary
determination by a fair preponderance of the evidence
independent of the hearsay utterances . . . a standard
which is lower than the standard of evidence required
to submit a charge of conspiracy to the jury. . . . Once
the threshold requirement for admissibility is satisfied
by a showing of a likelihood of an illicit association
between the declarant and the defendant . . . the con-
spirators’ statements are admissible and they might tip
the scale in favor of the defendant’s guilt . . . .’’ (Inter-
nal quotation marks omitted.) State v. Haggood, 36
Conn. App. 753, 766–68, 653 A.2d 216, cert. denied, 233
Conn. 904, 657 A.2d 644 (1995).
The following facts and procedural history are neces-
sary for the resolution of the defendant’s claim. Mor-
rison testified that Anthony Adams asked her to arrange
a marijuana purchase and that he later informed her that
Daquane Adams and the defendant would be making
the purchase. The defendant did not object to this testi-
mony. The defendant only later argued that the state
had failed to satisfy the foundational requirements of
State v. Vessichio, supra, 197 Conn. 653–60, for the
admission of Morrison’s statements under the cocon-
spirator exception to the hearsay rule. According to the
defendant, Morrison’s statements could not be used as
evidence of a conspiracy for purposes of establishing
a foundation for Daniels’ testimony because Morrison’s
statements were also inadmissible.
During the state’s offer of proof outside the presence
of the jury, Daniels testified that when Daquane Adams
came to see her at work at approximately midnight on
October 29, 2012, he informed her that her car had been
stolen and that she should report her car as having been
stolen, implying that he had been robbed. The defendant
objected on the ground that there was insufficient inde-
pendent evidence to establish the existence of a con-
spiracy. The defendant argued that the only potential
evidence of a conspiracy was Morrison’s testimony
regarding what Anthony Adams had told her about the
marijuana purchase, which, likewise, was improperly
admitted under the coconspirator exception. The court
sustained the objection to Daniels’ testimony, reasoning
that the state had not met its burden, at that time,
of demonstrating that her statements were admissible
under the coconspirator exception. Later in the trial,
the state recalled Daniels to testify. The defendant again
raised a Vessichio issue with respect to Daquane
Adams’ statements to Daniels. The court ruled that it
would allow the statements into evidence but the state
would ‘‘have to tie it in at some point and . . . it’s
subject to the tie-in.’’ Daniels then testified in front of
the jury that Daquane Adams had told her that he had
been robbed and to report her car as stolen.
The defendant also objected to two portions of
Green’s testimony on the ground that a conspiracy had
not been established pursuant to Vessichio. First, the
defendant objected to Green’s testimony that, while the
victim and the individual with the bandana struggled
over the gun, a third individual approached and said,
‘‘just give us the gun . . . .’’ The court overruled the
objection, finding that the statement was admissible
both under the coconspirator exception and to show the
effect of the statement on Green. Second, the defendant
objected to Green’s testimony that the individual with
the bandana said, ‘‘run it,’’ which Green understood to
mean that this was a robbery. The court also overruled
the second objection.
Later, Bello testified that after midnight on October
29, 2012, Anthony Adams telephoned her and asked
her for a favor. The defendant objected on Vessichio
grounds. The court overruled the objection, subject to
the state ‘‘linking it in . . . .’’ Bello proceeded to testify
that Anthony Adams had telephoned her and asked her
to ‘‘pick [Daquane Adams] up and bring him to the
hospital’’ because he ‘‘had to pick keys up from the
hospital.’’ She stated that when she arrived to pick up
Daquane Adams, the defendant was also present, and
he sat in the backseat while she drove Daquane Adams
to the hospital. En route to the hospital, she heard the
defendant exclaim, ‘‘[o]h, shit. Fuck.’’ The defendant
objected to this testimony, and the court overruled the
objection. Bello testified that later that night, Anthony
Adams telephoned her to thank her and said that ‘‘some
wild shit happened,’’ but that ‘‘we didn’t go into details
about what the wild shit [that] had happened was.’’ After
the state rested, the defendant renewed his objection
to the hearsay statements by Morrison and Daniels
regarding what Anthony Adams and Daquane Adams
had said to them, respectively, and argued that the state
had not proven the existence of a conspiracy suffi-
ciently for the court to admit the coconspirator hearsay
statements under the exception. The court stated that
it had reserved judgment on Morrison’s statements and
that it had let other statements in under the coconspira-
tor exception. The court then ruled that the statements
were admissible under the coconspirator exception.
The defendant primarily challenges the sufficiency
of the state’s evidence admitted to establish by a fair
preponderance that a conspiracy to commit robbery
existed. The defendant further contends that even
assuming a conspiracy existed, there was no evidence
that the defendant was a participant in that conspiracy.
We conclude that the court did not err in its preliminary
determination that a conspiracy existed.
‘‘The standard of proof of a fact by a fair preponder-
ance has been met when all the evidence considered
fairly and impartially evinces a reasonable belief that
it is more probable than not that the fact is true. . . .
In reviewing a claim that the state failed to meet the
threshold of proof regarding the existence of a conspir-
acy with the defendant as a participant to permit evi-
dence of out-of-court statements by coconspirators, we
must construe the evidence 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.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Hag-
good, supra, 36 Conn. App. 767–68; see also State v.
Peeler, 267 Conn. 611, 628, 841 A.2d 181 (2004).
The defendant argues that the court erred in condi-
tionally admitting into evidence hearsay testimony from
Morrison and Daniels under the coconspirator excep-
tion, subject to the state satisfying the foundational
requirements of Vessichio at a later point in the trial.
He contends that the court was required to make a
determination regarding the admissibility of the testi-
mony under the coconspirator exception based only on
the evidence elicited at trial prior, and not subsequent,
to the admission of the testimony. We disagree, as Ves-
sichio contains no such requirement. The court’s condi-
tional admission of the hearsay testimony subject to
the state’s later admission of the sufficient foundational
evidence is permitted under § 1-3 (b) of the Connecticut
Code of Evidence, which provides: ‘‘When the admissi-
bility of evidence depends upon connecting facts, the
court may admit the evidence upon proof of the con-
necting facts or subject to later proof of the connecting
facts.’’ In such an instance, ‘‘there can be no prejudice
where . . . the necessary foundation is finally estab-
lished.’’ State v. Anonymous (83-FG), 190 Conn. 715,
725, 463 A.2d 533 (1983).
In the present case, the state later introduced the
necessary connecting facts. During their investigation,
the police found a black bandana containing the defen-
dant’s DNA in the victim’s Acura. The center console
of the Acura contained a bullet hole, and the interior
frame on the driver’s side door had a ricochet mark
from a bullet. The police discovered Daniels’ Toyota,
which had been used in the robbery and which Daquane
Adams had used to drive Daniels to work earlier that
night, abandoned on a street near the West Haven park-
ing lot in which the incident had occurred.
Bello testified that she picked up the defendant and
Daquane Adams on the night of October 28, 2012, at a
nearby location in West Haven. On November 1, 2012,
the defendant met with his probation officer, and when
his probation officer asked him to remove his sun-
glasses, he noticed that the defendant’s eyes were ‘‘a
deep red.’’ Cell phone records showed calls between
Anthony Adams and Daquane Adams during the time
of the incident that utilized cell phone towers in West
Haven. The cell phone records also showed calls that
evening, at the times in question, between Anthony
Adams and Morrison, between Anthony Adams and
Daquane Adams, and between Anthony Adams and
Bello.
The defendant also argues that the court erred in
relying on coconspirator hearsay testimony in reaching
its determination that the hearsay testimony that it had
conditionally admitted into evidence was supported by
the necessary foundational evidence of a conspiracy.
He contends that the court improperly failed to rely
exclusively on independent evidence. We disagree.
There is no indication from the record that the court
improperly considered the hearsay statements in its
analysis. The court mentioned coconspirator hearsay
statements in addition to independent evidence when
discussing whether the state had established the exis-
tence of a conspiracy by a preponderance of the evi-
dence. Defense counsel, however, asked the court to
clarify its basis, arguing that it could not ‘‘take [into
account] the coconspirator hearsay declaration state-
ments themselves.’’ The court responded by specifying
that it had relied on ‘‘the other independent evidence
that was established.’’ Defense counsel asked the court
to clarify whether this independent evidence included
Morrison’s and Daniels’ hearsay statements, and the
court confirmed that it did not. It is clear from this
colloquy that the court based its ruling only on indepen-
dent evidence.
Because Vessichio does not require the court to deter-
mine the admissibility of the testimony under the cocon-
spirator exception based only on the evidence elicited
at trial prior, and not subsequent, to the admission
of the statement, and because the court considered
independent evidence that could establish by a prepon-
derance of the evidence that a conspiracy to rob the
victim existed and that the defendant was a participant
in that conspiracy, the court’s admission of the chal-
lenged statements was not improper.18
IV
The defendant next claims that the court erred in
denying his motion to sever his trial from that of his
codefendant, Anthony Adams. We disagree.
The following procedural history is relevant to this
claim. Prior to the start of trial, the court, Iannotti, J.,
granted the state’s motion to consolidate the trials of
the defendant and Anthony Adams. At a hearing on
the motion, defense counsel stated that he was not
objecting to consolidation. Prior to jury selection, the
court, Markle, J., questioned counsel regarding whether
the joinder of the trials presented any issues under
Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620,
20 L. Ed. 2d 476 (1968).19 The court expressed concern
that Anthony Adams’ testimony could place the defen-
dant at the scene of the crime. Anthony Adams’ counsel
stated that defense counsel ‘‘freely admits that his client
was in the vicinity around the time of the shooting and
is . . . claiming mere presence.’’ Both counsel for the
defendant and Anthony Adams stated that there were
no Bruton issues, and that they did not object to the
state’s motion to consolidate.20 The cases remained con-
solidated.
During Morrison’s direct examination, and after she
testified that she knew the defendant by his nickname,
defense counsel moved for severance. Defense counsel
argued that Morrison testified that Anthony Adams
stated that ‘‘Day-Day and GZ’’ would purchase the mari-
juana, identifying ‘‘Day-Day’’ as Daquane Adams, and,
to counsel’s surprise, ‘‘GZ’’ as the defendant. Defense
counsel contended that he did not know that Morrison
would identify the defendant as GZ, that her identifica-
tion of GZ was a result of a suggestive pretrial proce-
dure; see part II of this opinion; and that her testimony
as to Daquane Adams arguably placed the defendant
at the scene of the crime. The court denied the motion
for severance.
Later, Danielle Zakar, an acquaintance of Anthony
Adams, testified that on December 27, 2012, while
Anthony Adams and another man were at her New York
residence, the police arrived, causing the two men to
flee. On direct examination, Zakar denied hearing
Anthony Adams say why he was in New York. Joseph
Thomas, a detective with the Fugitive Task Force Mar-
shal Service, then testified, under State v. Whelan, 200
Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107
S. Ct. 597, 93 L. Ed. 2d 598 (1986),21 that he took Zakar’s
statement, in which she indicated that she had over-
heard Anthony Adams state that he had killed a man
in Connecticut and was now on the run from the Con-
necticut police.
On appeal, the defendant argues that severance was
necessary because evidence was admitted at the joint
trial that would not have been admissible against him
at a separate trial. The evidence the defendant identifies
as being inadmissible against him in a separate trial is
as follows: hearsay statements Anthony Adams made
to Morrison and Bello, which the defendant argues were
inadmissible under the coconspirator exception to the
hearsay rule; see part III of this opinion; and Zakar’s
statement to the police that she had heard Anthony
Adams say that he was on the run because he had
killed someone in Connecticut. Although the defendant
argues that this issue is reviewable, he did not move
for severance on the basis of this evidence and, as
such, his claim is unpreserved. In the alternative, the
defendant seeks review under the bypass rule of State
v. Golding, supra, 213 Conn. 239–40, but he has not
demonstrated that a constitutional violation exists and,
therefore, has not satisfied the third prong of Golding.
The court clearly raised potential joint trial issues,
specifying what types of evidence would create a Bru-
ton issue.22 Defense counsel reassured the court that
such problems would not arise. As we concluded in
part III of this opinion, Anthony Adams’ statements to
Morrison and Bello were admissible against the defen-
dant under the coconspirator exception to the hearsay
rule. Thus, the introduction of those statements did not
create a Bruton issue. See State v. Robertson, 254 Conn.
739, 765, 760 A.2d 82 (2000). As to Zakar’s Whelan state-
ment, a Bruton issue ‘‘does not occur if the codefen-
dant’s confession is redacted to omit any reference to
the defendant, and a proper limiting instruction is given
by the trial court.’’ State v. Edwards, 39 Conn. App.
242, 245, 665 A.2d 611, cert. denied, 235 Conn. 924, 925,
666 A.2d 1186 (1995). Zakar’s Whelan statement did
not identify the defendant, and the court gave curative
instructions, reminding the jury that Thomas’ testimony
concerning his interview of Zakar was ‘‘directed toward
the [codefendant] Anthony Adams.’’ ‘‘Accordingly, the
defendant did not suffer substantial prejudice by the
admission of the codefendant’s statement so as to
require a separate trial.’’ State v. Edwards, supra, 246.
Because the defendant has not demonstrated that a
constitutional violation exists, he cannot prevail under
the third prong of Golding.23
V
The defendant next claims that the court erred in
admitting into evidence (1) a photograph depicting a
black bandana on the floor of the front passenger side
of the Acura, and (2) a black bandana and the DNA
evidence derived therefrom. We disagree.
The following additional procedural history is rele-
vant. Murray testified that as part of the investigation,
the police seized both the Acura and the Toyota, and
that a black bandana was seized from the front passen-
ger seat floor of the Acura. The prosecutor showed
Murray a photograph and asked if it was an accurate
representation of what the bandana looked like and
where it was located before it was seized. Murray
responded affirmatively. The prosecutor then sought to
offer the photograph as an exhibit, and defense counsel
objected. During voir dire, Murray stated that she did
not remember who took the photograph or whether it
was taken at the scene or at the West Haven Police
Department. The court admitted the photograph as a
full exhibit on the basis of Murray’s testimony that it
was a fair and accurate representation of what she
observed at the West Haven Police Department.
Murray further testified on direct examination that
she recognized the black bandana as being the one
recovered from the Acura, that the bandana was taken
into police custody, and that it remained in the posses-
sion of the West Haven Police Department prior to
being sent to a laboratory for analysis. When the state
sought to admit the bandana into evidence, defense
counsel objected on the ground that Murray did not
know the bandana’s location prior to seeing it at the
West Haven Police Department after the Acura had
been towed to that location and, therefore, a chain of
custody had not been established. The court overruled
the objection, and the bandana was admitted as a
full exhibit.
The defendant argues that the state failed to lay a
proper foundation for the admission of the photograph,
the bandana, and the DNA evidence. With respect to
the photograph of the bandana, the defendant contends
that the state failed to establish its authenticity because
Murray could not identify who took it or where it had
been taken. Regarding the bandana itself and the DNA
evidence derived from the bandana, the defendant
argues that the state failed to establish a sufficient chain
of custody because the state ‘‘could not demonstrate
that the bandana was originally in the Acura at the
scene, and had not been moved or tampered with in
any respect before it was seized at the police depart-
ment.’’ In making this argument, the defendant contends
that Green had not seen the shooter without the ban-
dana, the first officer to arrive at the scene did not see
the bandana in the Acura after conducting a plain view
search of the vehicle, and an inventory listed the black
bandana as having been seized from the Toyota rather
than from the Acura. The defendant argues that the
only evidence linking the bandana to the Acura was
Murray’s testimony, which related to the bandana’s
location at the police department, not at the scene.
We first address the defendant’s claim with respect
to the photograph and conclude that the court did not
abuse its discretion in admitting the photograph into
evidence. ‘‘Under [the foundational] standard [for pho-
tographs], all that is required is that a photograph be
introduced through a witness competent to verify it as
a fair and accurate representation of what it depicts.’’
State v. Swinton, 268 Conn. 781, 802, 847 A.2d 921
(2004). ‘‘[T]he testimony of the photographer is not
essential for the authentication of a photograph, as long
as other evidence is produced that satisfies the court.’’
Gioielli v. Mallard Cove Condominium Assn., Inc., 37
Conn. App. 822, 834, 658 A.2d 134 (1995). ‘‘Verification
of a photograph is a preliminary question of fact to be
determined by the trial court. . . . Whether a photo-
graph shows a situation with sufficient accuracy to
render it admissible, is a preliminary question for the
court . . . . [T]he trial court has wide discretion in
admitting photographic evidence and its determination
will stand unless there has been a clear abuse of that
discretion.’’ (Citations omitted; internal quotation
marks omitted.) State v. Walker, 215 Conn. 1, 6, 574
A.2d 188 (1990). Although the photographer did not
testify, Murray’s testimony that the photograph was a
fair and accurate representation of what the bandana
looked like before it was seized satisfied the court as
to the photograph’s authenticity. See State v. Swinton,
supra, 802; Gioielli v. Mallard Cove Condominium
Assn., Inc., supra, 834. Regardless of whether Murray
remembered who took the photograph or knew whether
the photograph was taken at the scene or at the police
department, the court did not clearly abuse its discre-
tion in finding that Murray was a competent witness to
testify that the photograph was a fair and accurate
representation of what she personally observed in the
car. See State v. Walker, supra, 6. Thus, Murray’s testi-
mony provided a proper foundation for the admission
of the photograph.
We next address the defendant’s argument regarding
the admissibility of the bandana, and the DNA evidence
derived therefrom. ‘‘Appellate courts grant great defer-
ence to a trial court’s ruling on the admissibility of
evidence . . . and will not disturb such rulings absent
a clear abuse of the trial court’s discretion. . . . As a
general rule, it may be said that the prosecution is
not required or compelled to prove each and every
circumstance in the chain of custody beyond a reason-
able doubt . . . . It is not necessary for every person
who handled the item to testify in order to establish
the chain of custody. It is sufficient if the chain of
custody is established with reasonable certainty to elim-
inate the likelihood of mistake or alteration.’’ (Internal
quotation marks omitted.) State v. Lowe, 61 Conn. App.
291, 303, 763 A.2d 680 (2001).
‘‘The state’s burden with respect to chain of custody
is met by a showing that there is a reasonable probabil-
ity that the substance has not been changed in important
respects. . . . The court must consider the nature of
the article, the circumstances surrounding its preserva-
tion and custody and the likelihood of intermeddlers
tampering with it . . . . Thus, this court has found suf-
ficient evidence to establish an adequate chain of cus-
tody where there is testimony that evidence was
transferred between law enforcement personnel, deliv-
ered and received by the state toxicology laboratory
and was identified at trial as the same evidence in an
unchanged condition with no indication of tampering.’’
(Citation omitted; internal quotation marks omitted.)
Id. ‘‘An object connected with the commission of a
crime must be shown to be in substantially the same
condition as when the crime was committed before it
can be properly admitted into evidence. . . . There is
no hard and fast rule that the prosecution must exclude
or disprove all possibility that the article or substance
has been tampered with; in each case the trial court
must satisfy itself in reasonable probability that the
substance had not been changed in important respects.’’
(Internal quotation marks omitted.) State v. Pollitt, 205
Conn. 61, 88, 530 A.2d 155 (1987).
The court reasonably could have concluded that the
bandana had not been tampered with. Following the
incident, Green, who was driving the Acura, followed
the Toyota. The Acura became disabled after hitting
the Toyota in the vicinity of Glade Street and Terrance
Street in West Haven. Seth Twohill, an officer with the
West Haven Police Department, arrived on the scene
at approximately midnight, and saw the Acura at that
location and Green attempting to revive the victim.
Twohill blocked off the area with crime scene tape.
Joseph D’Amato, another responding officer, testified
that Green and the victim were in the Acura when he
arrived, and that he did not see anyone disturbing the
integrity of the crime scene. Murray testified that the
Acura was later towed from its location in West Haven
to the West Haven Police Department. Robert Fazzino,
a detective with the West Haven Police Department,
and Murray testified that the black bandana was
removed from the Acura. Murray further testified that
the black bandana was in police custody prior to being
sent to the laboratory. At trial, Murray recognized her
initials on the packaging containing the bandana. Deg-
nan testified that she received the bandana from the
West Haven Police Department, designated the front
and back side of the bandana with numbers, placed her
initials on the barcode and sealed it with evidence tape
that also had her initials on it.
The defendant’s argument that the bandana could
have been tampered with between the time of the com-
mission of the crime and the time the bandana was
recovered by police is pure speculation. State v.
Estrada, 71 Conn. App. 344, 354, 802 A.2d 873 (mere
speculation of tampering insufficient to show break in
chain of custody), cert. denied, 261 Conn. 934, 806 A.2d
1068 (2002). There is no evidence to support the defen-
dant’s claim that the bandana could have been tampered
with between the time Green followed the Toyota, hit
the Toyota, and tried to revive the victim, and when the
Acura was towed to the West Haven Police Department.
The defendant incorrectly suggests that an absence of
evidence of tampering weighs in his favor. In the
absence of ‘‘an affirmative showing that the evidence
was in some way tampered with, misplaced, mislabeled
or otherwise mishandled’’; (internal quotation marks
omitted) State v. Lowe, supra, 61 Conn. App. 304; we
cannot conclude that the court abused its discretion
in admitting the bandana into evidence. See State v.
Johnson, 162 Conn. 215, 233, 292 A.2d 903 (1972) (where
there was no affirmative showing that evidence was
tampered with, it cannot be said that court abused dis-
cretion in admitting evidence).24 Because there was a
sufficient chain of custody for the admission of the
bandana and, by extension, the DNA evidence derived
from the bandana, we conclude that the court did not
abuse its discretion in admitting these two items into
evidence.
VI
The defendant last claims that his conviction of both
felony murder and manslaughter in the first degree with
a firearm, which arose from the act of killing the victim,
violates his right against double jeopardy and, accord-
ingly, his manslaughter conviction should be vacated.
The state agrees that the manslaughter conviction
should be vacated.
The defendant seeks review of his unpreserved dou-
ble jeopardy claim pursuant to State v. Golding, supra,
213 Conn. 239–40. We review this claim because the
record is adequate for review and the claim is of consti-
tutional magnitude. See State v. Barber, 64 Conn. App.
659, 671, 781 A.2d 464 (‘‘[i]f double jeopardy claims
arising in the context of a single trial are raised for
the first time on appeal, these claims are reviewable’’
[internal quotation marks omitted]), cert. denied, 258
Conn. 925, 783 A.2d 1030 (2001).
‘‘The fifth amendment to the United States constitu-
tion provides in relevant part: No person shall . . . be
subject for the same offense to be twice put in jeopardy
of life or limb . . . . The double jeopardy clause of
the fifth amendment is made applicable to the states
through the due process clause of the fourteenth
amendment. . . . Double jeopardy prohibits . . .
multiple punishments for the same offense.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Carlos P., 171 Conn. App. 530, 537, 157 A.3d 723, cert.
denied, 325 Conn. 912, 158 A.3d 321 (2017). In State v.
Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013), our
Supreme Court held that if a defendant is convicted of
greater and lesser included offenses, the trial court must
vacate the conviction of the lesser offense. Our
Supreme Court in State v. Miranda, 317 Conn. 741, 751,
120 A.3d 490 (2015), extended the rule of vacatur in
Polanco for double jeopardy claims to apply in a situa-
tion such as this, where there are multiple homicide
convictions that are based on a single act. In the present
case, the defendant’s conviction of felony murder and
manslaughter violate his constitutional protections
against double jeopardy. Accordingly, the third prong
of Golding is met, and the defendant prevails on his
claim. See State v. Biggs, 176 Conn. App. 687, 714,
171 A.3d 457, cert. denied, 327 Conn. 975, 174 A.3d
193 (2017).
The judgment is reversed only as to the defendant’s
conviction of manslaughter in the first degree and the
case is remanded with direction to vacate that convic-
tion and to resentence the defendant consistent with
this opinion. The judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
The Toyota was discovered to belong to Ronja Daniels, Daquane Adams’
girlfriend. Daniels testified that earlier that night, Daquane Adams had
dropped her off at work and borrowed her car.
2
Anthony Adams was charged with felony murder in violation of § 53a-
54c; manslaughter in the first degree with a firearm in violation of § 53a-
55a (a); attempt to commit robbery in the first degree in violation of §§ 53a-
49 (a) (2), 53a-134 (a) (2); and conspiracy to commit robbery in the first
degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a). Daquane
Adams was also a codefendant but was tried separately.
3
The defendant mentions in his brief that the court also violated his right
under article first, § 8, of the Connecticut constitution; however, he fails
to provide an independent analysis of his state constitutional claim. We,
accordingly, deem his state constitutional claim abandoned. See State v.
Pierre, 277 Conn. 42, 74 n.12, 890 A.2d 474 (‘‘[w]ithout a separately briefed
and analyzed state constitutional claim, we deem abandoned the defendant’s
claim’’ [internal quotation marks omitted]), cert. denied, 547 U.S. 1197, 126
S. Ct. 2873, 165 L. Ed. 2d 904 (2006).
4
According to Degnan’s findings, the expected statistical frequency that
an individual could be a contributor to the DNA profile found on the bandana
was less than one in seven billion in a random population.
5
Degnan testified that she did not enter the profile of the minor contributor
into the databases because it did not meet the guidelines to qualify for entry.
6
Anthony Adams and Daquane Adams were eliminated as contributors
to the DNA extracted from the bandana.
7
Neither counsel raised a Crawford v. Washington, 541 U.S. 36, 61, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004), or a confrontation issue.
8
On appeal, the defendant does not argue that admitting Degnan’s report
violated his right to confrontation.
9
Because confrontation claims that involve testimonial hearsay raise due
process concerns, and because those claims are not determined on the basis
of the rules of evidence after Crawford v. Washington, 541 U.S. 36, 61, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004), it is particularly important that trial
counsel articulate whether they are raising a constitutional due process claim
or an evidentiary issue. See, e.g., Chief Disciplinary Counsel v. Rozbicki,
326 Conn. 686, 695, 167 A.3d 351 (2017) (‘‘to permit a party to raise a claim
on appeal that has not been raised at trial—after it is too late for the trial
court or the opposing party to address the claim—would encourage trial
by ambuscade, which is unfair to both the trial court and the opposing
party’’ [internal quotation marks omitted]); State v. Hilton, 45 Conn. App.
207, 222, 694 A.2d 830 (‘‘[w]e are not bound to consider claims of law not
properly raised at trial’’), cert. denied, 243 Conn. 925, 701 A.2d 659 (1997),
cert. denied, 522 U.S. 1134, 118 S. Ct. 1091, 140 L. Ed. 2d 147 (1998).
10
There is no evidence in the record to suggest that the analyst was not
available to be called to testify by either the state or the defendant.
11
Similarly, under the Connecticut Code of Evidence, ‘‘[t]he facts in the
particular case upon which an expert bases an opinion may be those per-
ceived 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. . . .’’
Conn. Code Evid. § 7-4 (b).
12
Although the defendant raises this claim under the Connecticut constitu-
tion, he does not provide a separate analysis of the claim under the Connecti-
cut constitution and, accordingly, we deem that claim abandoned. See
footnote 3 of this opinion.
13
On appeal, unlike at trial, the defendant does not argue that Morrison’s
in-court identification of him was the product of an inherently suggestive
procedure due to the courtroom setting but, instead, focuses on the out-of-
court identification procedure’s effect on the in-court identification.
14
Practice Book § 40-13A provides that ‘‘[u]pon written request by a defen-
dant and without requiring any order of the judicial authority, the prosecuting
authority shall, no later than forty-five days from receiving the request,
provide photocopies of all statements, law enforcement reports and affida-
vits within the possession of the prosecuting authority and his or her agents,
including state and local law enforcement officers, which statements, reports
and affidavits were prepared concerning the offense charged . . . .’’
15
Practice Book § 40-5 provides in relevant part that ‘‘[i]f a party fails to
comply with disclosure as required under these rules, the opposing party
may move the judicial authority for an appropriate order’’ and sets forth a
nonexhaustive list of sanctions to be imposed ‘‘as it deems appropriate
. . . .’’
16
The defendant also argues that the admission of this evidence violated
his right to confrontation under the federal and state constitutions. We
conclude that the court properly admitted the statements because coconspir-
ator statements, ‘‘by their nature [are] not testimonial.’’ Crawford v. Wash-
ington, supra, 541 U.S. 56. As Crawford acknowledged, ‘‘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.’’ State v. Azevedo, 178 Conn. App. 671, 679, A.3d
(2017), cert. denied, 328 Conn. 908, A.3d (2018).
17
Insofar as the defendant argues that the court erroneously found that
these statements were reliable, we hold that the court did not abuse its
discretion in deciding to admit these statements. See, e.g., State v. Camacho,
282 Conn. 328, 363, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S. Ct. 388,
169 L. Ed. 2d 273 (2007).
18
Furthermore, as the state suggests in its brief, Green’s testimony that
he heard the man with the bandana say, ‘‘just give us the gun,’’ and, ‘‘run
it,’’ as well as Bello’s testimony that she heard the defendant exclaim, ‘‘[o]h,
shit. Fuck,’’ as she drove him to the hospital were also admissible as to the
defendant as statements by a party opponent. Conn. Code Evid. § 8-3 (1).
Section 8-3 of the Connecticut Code of Evidence provides in relevant part
that ‘‘[t]he following are not excluded by the hearsay rule, even though the
declarant is available as a witness (1) . . . [a] statement that is being offered
against a party and is . . . the party’s own statement, in either an individual
or a representative capacity . . . .’’
These statements were offered against the defendant and were the defen-
dant’s own statements. The statements were both relevant and material,
providing inculpatory evidence against the defendant, and thus, were admis-
sible under this exception to the hearsay rule, in addition to the coconspirator
exception. See State v. Ferguson, 260 Conn. 339, 357–58, 796 A.2d 1118
(2002) (‘‘[s]tatements made out of court by a party-opponent are universally
deemed admissible when offered against him . . . so long as they are rele-
vant and material to issues in the case’’ [citation omitted; internal quotation
marks omitted]).
19
‘‘[I]n Bruton, the United States Supreme Court held that a defendant is
deprived of his rights under the confrontation clause when his codefendant’s
incriminating confession is introduced at their joint trial, even if the jury is
instructed to consider that confession only against the codefendant. . . .
In Bruton, however, the court emphasized that it was dealing with a case in
which the hearsay statement inculpating petitioner was clearly inadmissible
against him under traditional rules of evidence. . . . Several lower courts
have thus concluded that Bruton has no application when the statements
of a codefendant are otherwise admissible against the defendant.’’ (Citations
omitted; internal quotation marks omitted.) State v. Robertson, 254 Conn.
739, 765, 760 A.2d 82 (2000).
20
At oral argument before this court, the state maintained that there was
no Bruton violation or evidence that triggered Bruton.
21
State v. Whelan, supra, 200 Conn. 753, established a hearsay exception
that allows ‘‘the substantive use of prior written inconsistent statements,
signed by the declarant, who has personal knowledge of the facts stated,
when the declarant testifies at trial and is subject to cross-examination.’’
22
The court explained that ‘‘the legal issues that are addressed under the
Bruton issue that would prohibit joinder [are] whether or not there are any
postarrest statements made by codefendants and/or confessions that can
be used to prejudice another codefendant. And if those statements or confes-
sions are entered into during the course of the evidence, Bruton says clearly
that there is a conflict and the codefendant can’t be prejudiced by that, and
therefore you can’t join the cases together; you have to have separate trials.’’
23
The reason stated by the defendant for moving for severance was Mor-
rison’s identification of the defendant as ‘‘GZ.’’ This identification was based
on Morrison’s prior knowledge of the defendant and would have been admis-
sible against the defendant in a separate trial. See part II of this opinion;
see also State v. Johnson, 29 Conn. App. 394, 396, 615 A.2d 512 (1992)
(defendant withdrew motion to suppress upon learning that witness’ identifi-
cation of him was based, ‘‘in part, on her prior knowledge of and contact
with him’’), appeal dismissed, 227 Conn. 611, 630 A.2d 69 (1993).
24
Evidence that an inventory listed the bandana as having been recovered
from the Toyota, instead of the Acura, does not render the bandana inadmis-
sible. Fazzino testified that, as the lead investigator, he signed an inventory
mistakenly indicating that the black bandana had been recovered from the
Toyota. He testified that he personally saw the black bandana in the Acura
and that it was recovered from the Acura, not the Toyota. That an inventory
sheet listed the bandana as having been seized from the Toyota goes to the
weight of the evidence, not its admissibility. See, e.g., State v. John, 210 Conn.
652, 678, 557 A.2d 93 (‘‘fact that there was conflicting evidence regarding
the [fact] in question would go to the weight of [witness’] opinion and not
to its admissibility’’), cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d
50 (1989).