State v. Gray ( 2022 )

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STATE OF CONNECTICUT v. BENNIE GRAY, JR.
(AC 43339)
Prescott, Moll and Cradle, Js.
Syllabus
Convicted, after a jury trial, of the crime of possession of narcotics with
intent to sell, the defendant appealed to this court. After observing a
suspected narcotics transaction between the defendant and D, police
officers recovered crack cocaine on D and seized $1268 in cash from
the defendant. Prior to trial, the defendant filed a motion for discovery
requesting that the state produce the money seized during his arrest.
The state responded that it could not produce the exact currency because
the police department, in accordance with its policy, had deposited
those funds immediately into a secure bank account. The defendant
subsequently filed a motion to dismiss the charges against him or, in
the alternative, to suppress any evidence relating to the currency, which
the trial court denied. Also prior to trial, the state provided the defendant
with a copy of a forensic lab report describing the narcotics as being
contained within ‘‘knotted plastic,’’ which contradicted certain other
pretrial statements. The defendant argued that these discrepancies pre-
sented a chain of custody issue and requested that his standby counsel
subpoena the lab for any photographs taken of the seized narcotics. At
trial, a forensic lab employee produced two photographs of the narcotics
as initially received by the lab, which were admitted into evidence as a
defense exhibit, and testified that the narcotics appeared to be contained
within a knotted plastic bag. The defendant presented testimony, during
his case-in-chief, that the narcotics were ‘‘loose’’ when recovered by the
police, and not placed into a plastic bag, then moved for a judgment of
acquittal based on the chain of custody issue. After the state recalled
certain witnesses on rebuttal, the trial court denied the defendant’s
motion for a judgment of acquittal. When the defendant asked to call
additional lab employees as witnesses, the state presented additional
testimony from forensic lab employees and introduced an enlarged copy
of one of the forensic lab photographs already in evidence. The witnesses
testified that what they originally believed to be knotted plastic looked
to be a glare or reflection in the enlarged photograph. The trial court
subsequently denied the defendant’s postverdict motions for a new trial
or, in the alternative, a mistrial, based on the state’s late disclosure of
the forensic lab photographs. Held:
1. The trial court did not violate the defendant’s right to due process under
article first, § 8, of the state constitution by denying his pretrial motion
to dismiss the charges against him or, in the alternative, to suppress
any evidence relating to the currency seized during his arrest: although
this court determined that the police department’s improper disposition
of the currency violated the requirements of the applicable statute (§ 54-
36a (b) (3) (B)) and demonstrated a reckless disregard of the defendant’s
right to a hearing on the currency’s disposition, this court also concluded,
applying the factors set forth in State v. Asherman (193 Conn. 695),
that the seized currency was immaterial because it was speculative
whether the defendant’s examination or testing of the currency would
have led to exculpatory evidence that affected the outcome of the pro-
ceeding, the currency’s absence was unlikely to lead to misinterpretation
of the evidence by the jury, and, considering the strength of the state’s
case, as well as the defendant’s opportunity to engage in unfettered
cross-examination and to raise doubt about the significance of the seized
currency during closing argument, the defendant was not prejudiced by
the currency’s unavailability.
(One judge concurring separately)
2. The defendant could not prevail on his claim that the trial court abused
its discretion by denying his postverdict motions for a new trial or, in
the alternative, a mistrial, as the defendant failed to demonstrate that
the state’s late disclosure of the forensic lab photographs violated his
right to due process under Brady v. Maryland (373 U.S. 83): the defen-
dant could not demonstrate that the forensic lab photographs were
favorable to his defense because, although there was confusion at trial
regarding the presence of a knotted plastic bag with the narcotics, the
enlarged photograph clearly demonstrated that the photographs at issue
did not depict knotted plastic and, therefore, did not support his chal-
lenge to the chain of custody.
3. This court declined to review the defendant’s claim that the trial court
abused its discretion by permitting the state to present as evidence the
enlarged lab photograph of the narcotics and related witness testimony
on rebuttal, the defendant having invited any error that may have arisen
from the trial court’s decision to permit such evidence: although the
defendant initially argued against the state’s introduction of witness
testimony on rebuttal, he repeatedly asked to call additional lab employ-
ees to testify as to the forensic lab photographs and documents related
to the narcotics after the court denied his motion for a judgment of
acquittal and, only thereafter, did the witnesses examine the enlarged
photograph and testify that what originally appeared to be knotted
plastic was actually glare or reflected light; moreover, the defendant
was given a full and fair opportunity to cross-examine the witnesses
regarding the condition in which the lab received the narcotics and to
elicit testimony regarding any discrepancies.
Argued October 19, 2021—officially released May 3, 2022
Procedural History
Substitute two part information charging the defen-
dant, in the first part, with one count each of the crimes
of possession of narcotics with intent to sell and posses-
sion of narcotics, and, in the second part, with having
previously been convicted of possession of narcotics
with intent to sell, brought to the Superior Court in
the judicial district of New London, geographical area
number ten, where the first part of the information was
tried to the jury before Kwak, J.; verdict of guilty of
possession of narcotics with intent to sell; thereafter,
the defendant pleaded guilty to the second part of the
information; subsequently, the state entered a nolle pro-
sequi as to the charge of possession of narcotics; there-
after, the court, Kwak, J., rendered judgment of guilty
in accordance with the verdict and the plea, from which
the defendant appealed to this court. Affirmed.
Raymond L. Durelli, assigned counsel, for the appel-
lant (defendant).
Jonathan M. Sousa, deputy assistant state’s attorney,
with whom, on the brief, were Paul J. Narducci, state’s
attorney, and Sarah Bowman, assistant state’s attorney,
for the appellee (state).
Opinion
CRADLE, J. The defendant, Bennie Gray, Jr., appeals
from the judgment of conviction, rendered after a jury
trial, of possession of narcotics with intent to sell in
violation of General Statutes § 21a-277 (a). On appeal,
the defendant claims that the trial court (1) improperly
denied his motion to dismiss the charges against him
or, in the alternative, to suppress any evidence relating
to currency seized during his arrest, thereby violating
his right to due process under article first, § 8, of the
Connecticut constitution, (2) abused its discretion by
denying the defendant’s postverdict motion for a new
trial or, in the alternative, for a mistrial based on the
state’s late disclosure of forensic lab photographs, and
(3) abused its discretion by permitting the state, on rebut-
tal, to present an enlarged copy of a lab photograph
already in evidence and witness testimony on that pho-
tograph. We disagree and, accordingly, affirm the judg-
ment of the trial court.
The jury reasonably could have found the following
facts. During the late afternoon hours of May 9, 2018,
four plainclothes officers from the vice and narcotics
unit of the New London Police Department1 (police depart-
ment) were conducting surveillance near the intersec-
tion of Broad Street and Ledyard Street in New London.
The officers were monitoring two convenience stores,
the Gulf station located at 265 Broad Street and the 7-
Eleven situated at the corner of Broad Street and Parker
Street, which were locations known for narcotics traf-
ficking. The officers were divided into teams of two, with
investigators Todd Lynch and Jeremy Zelinski occu-
pying one unmarked vehicle, and investigators Ryan
Griffin and Joseph Pelchat occupying another.
At approximately 4:30 p.m., the officers noticed a
man, later identified as Brian Drobnak, standing along-
side a Volvo sedan parked on the right side of the Gulf
station parking lot. The officers observed Drobnak pace
back and forth alongside the vehicle and continuously
check his cell phone. They did not see Drobnak pur-
chase gasoline, enter the convenience store, or use the
air pressure machine near where the Volvo was parked.
Shortly thereafter, a dark blue Toyota Camry, oper-
ated by a man later identified as the defendant, drove
into the Gulf station and stopped alongside the Volvo.
The officers observed Drobnak enter the front passen-
ger seat of the Toyota, remain inside the vehicle for
less than one minute, exit the vehicle, and subsequently
enter the Volvo through the driver’s side door. The offi-
cers could not see what transpired between Drobnak
and the defendant inside of the Toyota, but the brief
nature of the interaction led them to believe that they
had just witnessed a narcotics transaction. Accordingly,
the officers decided that Lynch and Zelinski would
investigate Drobnak, while Griffin and Pelchat would
follow the Toyota. Lynch and Zelinski then drove into
the Gulf station parking lot at the same moment that
the Toyota was exiting the lot, parked their unmarked
vehicle behind the Volvo, and exited the vehicle.2 Lynch
walked toward the driver’s side door of the Volvo while
Zelinski approached the passenger’s side.
Through the driver’s side window, Lynch observed
Drobnak sitting in the driver’s seat with a white, rock
like substance in his lap. Lynch later testified that Drob-
nak appeared to be manipulating the rock like sub-
stance with the ink cartridge of a ballpoint pen. Lynch
identified himself as law enforcement, at which point
Drobnak attempted to conceal the ink cartridge and
rock like substance in the empty space between the driv-
er’s seat and the passenger’s seat. Zelinski then opened
the passenger side door, placed Drobnak in custody,
and took possession of the rock like substance, which
had fallen to the floor of the vehicle. Lynch performed
a field test on the rock like substance, which returned
positive for crack cocaine. Drobnak was arrested and
given Miranda3 warnings. At the scene, Drobnak volun-
tarily agreed to speak with Lynch and Zelinski. He
informed the officers that he had purchased $50 worth
of crack cocaine from the man in the Toyota and showed
them the phone number he had contacted to arrange the
transaction.
Meanwhile, Griffin and Pelchat continuously had been
monitoring the Toyota operated by the defendant since
it had exited the Gulf station. After leaving the parking
lot, the defendant traveled down Broad Street and turned
into a Sunoco station, where he remained for a few
minutes. Griffin and Pelchat observed a woman, later
identified as Amanda Barton, emerge from a restaurant
next to the Sunoco station and walk toward the Toyota
carrying two plastic bags. Once Barton entered the Toy-
ota, the defendant exited the Sunoco parking lot and
turned onto Connecticut Avenue.
As Griffin and Pelchat continued to follow the Toyota,
they were informed by the other officers that Drobnak
was found in possession of narcotics, was placed under
arrest, and had told the officers that he had purchased
the narcotics from the operator of the Toyota. Believing
this information provided probable cause to conduct a
motor vehicle stop, Griffin and Pelchat requested that
the police department send a marked police cruiser
to assist them in apprehending the Toyota.4 Sergeant
Gregory Moreau, the street sergeant assigned to the patrol
shift, responded to the officers’ request.
Shortly thereafter, Moreau pulled behind Griffin and
Pelchat, who were still following the defendant down
Briggs Street. Moreau then maneuvered his police cruiser
between the Toyota and the officers’ unmarked vehicle,
activated his siren and overhead lights, and attempted
to initiate a motor vehicle stop. Despite the siren and
headlights, the defendant continued to drive forward
at a slow speed. Moreau then used his vehicle’s public
address system to order the defendant to pull the Toyota
over to the side of the road. After proceeding an additional
two to four hundred feet, the defendant came to a stop.
Moreau exited the police cruiser and walked toward the
driver’s side window of the Toyota, while Griffin, who
had exited the unmarked vehicle, began to approach the
Toyota on foot.
As Griffin drew closer to the Toyota, he observed Bar-
ton and the defendant appear to manipulate their hands
near their waists. Concerned that Barton and the defen-
dant could be concealing ‘‘weapons’’ or ‘‘narcotics’’ on
their persons, Griffin and Moreau ordered the passengers
to raise their hands to where the officers could see them.
Barton complied immediately, but the defendant raised
his hands only after Griffin issued a second verbal com-
mand. The officers removed Barton and the defendant
from the Toyota and placed them in investigative deten-
tion. Griffin conducted a pat-down search of the defen-
dant for weapons and, after feeling ‘‘a bulge in [the defen-
dant’s] pocket,’’ uncovered $1268 in cash. Believing the
cash to be the proceeds of narcotics transactions, the
officers seized the currency. The officers also noticed
three cell phones, including an LG cell phone, in the
Toyota’s center console. Although Barton and the defen-
dant each claimed ownership of one of the phones, nei-
ther claimed to own the LG phone.5
Around that time, Pelchat, who had parked the
unmarked vehicle a short distance away,6 approached
the defendant’s Toyota. Pelchat had been in contact with
Lynch, who communicated that Drobnak had provided
the officers with the phone number he had used to arrange
the narcotics transaction. The officers agreed that Lynch
would use his city-issued cell phone to call the number
once Pelchat arrived at the motor vehicle stop. When
Lynch placed the call, Pelchat observed the unclaimed
phone ring in the Toyota’s center console and display
Lynch’s phone number as the incoming caller. The offi-
cers seized the phone. The defendant was then placed
under arrest and transported to the police department.
No narcotics, residue, or paraphernalia were recovered
from the scene.
At the station, Lynch asked the defendant why he was
involved in selling narcotics, to which the defendant
responded, ‘‘that’s all I know.’’ The defendant was subse-
quently charged, by way of a substitute information dated
March 25, 2019, with one count of possession of narcotics
with intent to sell in violation of § 21a-277 (a), and one
count of possession of narcotics in violation of General
Statutes § 21a-279 (a).7
Drobnak was transported to the New London police
station, where he provided a written statement indicating
that he had purchased $50 worth of ‘‘loose crack cocaine’’
from ‘‘G,’’ and had done so on ‘‘at least three different
occasions.’’ Drobnak was also shown a photographic
lineup consisting of eight photographs and was asked to
determine whether one of those photographs displayed
the individual from whom he had purchased narcotics. He
identified an individual other than the defendant. Later,
at trial, Drobnak identified the defendant as the individual
from whom he had purchased narcotics and testified that
he had purchased the narcotics using two $20 bills and
one $10 bill. Drobnak explained that he initially misidenti-
fied the defendant because his ‘‘anxiety was off the wall,’’
he was going through withdrawal, and he ‘‘just wanted
[the police interview] to be over and to be done with.’’
He then testified that ‘‘[t]here is no doubt in my mind that
[the defendant] is the man who sold me crack cocaine.’’
Drobnak also testified that he was previously familiar
with the defendant and had purchased narcotics from
the defendant at least twice before. During cross-exami-
nation, Drobnak admitted that ‘‘G’’ was actually the nick-
name of Greg Williams, a mutual acquaintance of Drob-
nak and the defendant. Although Drobnak identified ‘‘G’’
in his written statement, he testified that he had intended
to refer to the defendant.
A jury trial commenced on April 2, 2019. At trial, the
defendant, appearing as a self-represented party, testified
in his defense that he had previously met Drobnak a few
days prior to May 9, 2018, when Drobnak had given the
defendant and Williams a ride to Groton. The defendant
stated that he had left his son’s cell phone—the same
unclaimed LG phone recovered from the defendant’s cen-
ter console—in Drobnak’s car. He further testified that
he had met with Williams on the morning of May 9, 2018,
and that Williams had returned the phone to him. The
defendant asserted that Drobnak contacted him later that
day in order to speak with him about the missing phone.
The defendant agreed, and the two arranged to meet at
the Gulf station.
The defendant testified that Drobnak briefly entered
the defendant’s car in the Gulf station parking lot and
requested a financial reward for finding the missing cell
phone. The defendant told Drobnak that the phone
already had been returned to him and asked Drobnak to
exit his car. The defendant denied selling narcotics and
testified that the seized currency was income he had
earned working as a groundskeeper at Lake of Isles golf
course in North Stonington. He asserted that he planned
to use the money to pay for rent.
The jury found the defendant guilty of possession of
narcotics with intent to sell.8 On July 8, 2019, the court,
Kwak, J., sentenced the defendant to twenty years of
incarceration, execution suspended after twelve years,
followed by five years of probation. The Sentence Review
Division of the Superior Court subsequently reduced the
sentence to twelve years of incarceration, execution sus-
pended after seven years, followed by five years of proba-
tion. This appeal followed. Additional facts and proce-
dural history will be set forth as necessary.
I
The defendant first claims that the trial court improp-
erly denied his pretrial motion to dismiss the charges
against him or, in the alternative, to suppress any evidence
relating to the currency seized during his arrest, which
the police department improperly deposited prior to trial,
thereby violating his right to due process under article
first, § 8, of the Connecticut constitution. Specifically, the
defendant contends that the police department’s improper
disposition of the currency denied him an opportunity
(1) to test the bills for the absence of Drobnak’s finger-
prints or DNA and (2) to demonstrate that the denomi-
nations on the inventory list were incorrect, that the
currency was comprised of large bills, and that the
actual denominations could have been used to impeach
Drobnak’s testimony regarding the transaction. Although
we determine that the police department’s disposition
of the seized currency violated General Statutes § 54-
36a (b) (3) (B),9 we conclude that the defendant has
failed to demonstrate a due process violation under
article first, § 8, of our state constitution.
The following additional facts and procedural history
are relevant to our resolution of this claim. After Griffin
and Pelchat delivered the seized currency to the New
London police station, Lynch and Pelchat each counted
the bills and listed the total amount and denominations
on a police department money envelope. The officers
recorded that the total amount of money recovered was
$1268, which consisted of two $50 bills, forty-eight $20
bills, twenty $10 bills, one $5 bill, and three $1 bills.10
On October 11, 2018, the defendant filed a motion
for discovery requesting that the state produce, inter
alia, ‘‘the actual money seized from [the defendant] on
May 9, 2018 . . . for review and inspection by . . .
[the defendant].’’ In its written response, the state
replied that the ‘‘[police department’s] policy for seized
funds is to deposit such funds immediately in a secure
bank account, not in evidence at the [police depart-
ment]. . . . Accordingly, the state cannot produce the
exact bills for the defendant’s inspection.’’ On January
3, 2018, the defendant moved to dismiss the charges,
or, alternatively, to suppress any evidence concerning
the seized cash arguing, inter alia, that the police depart-
ment’s failure to preserve potentially exculpatory evi-
dence violated his right to due process under article
first, § 8, of the Connecticut constitution as set forth
in State v. Morales, 232 Conn. 707, 720–21, 657 A.2d
585 (1995). The state subsequently filed a response in
opposition.
On February 27, 2019, the court heard argument on
the defendant’s motion. The defendant argued that the
police department had violated § 54-36a (b) (3) (B) by
failing to provide him with notice of his right to a hearing
on the disposition of the seized currency before depos-
iting the currency into a secure bank account. He con-
tended that the police department’s failure to preserve
the currency prevented him from testing the bills for
Drobnak’s fingerprints and DNA, and from determining
their actual denominations, resulting in a violation of
his state constitutional right to due process. The state
conceded that the police department improperly had
deposited the seized currency without providing the
defendant notice, explaining that the police department
had been using an outdated inventory form and that it
was the department’s standard procedure to deposit
currency in a secure bank account. The state argued,
however, that the currency’s exculpatory value was
speculative and that the defendant was not prejudiced
by its inability to produce missing bills. The state also
contended that the police department’s failure to inform
the defendant of his right to a hearing was not done in
bad faith and, therefore, did not rise to the level of a
constitutional violation.11
After hearing argument, the court orally denied the
defendant’s motion. In so doing, the court applied the
four factor test set forth in State v. Asherman, 193
Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470
U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), to
determine whether the police department’s failure to
preserve the currency violated the defendant’s state
constitutional right to due process. Specifically, the
court ‘‘consider[ed] the following factors . . . [1] the
materiality of the potentially exculpatory evidence, [2]
the likelihood of mistaken interpretation of the missing
evidence by witnesses or the fact finder, [3] the reason
for the unavailability of the evidence, and [4] the preju-
dice to the defendant.’’ Applying each factor, the court
held that (1) ‘‘the money [was not material because]
. . . while it may be exculpatory, it could go both ways
. . . . If [forensic testing] found [Drobnak’s] finger-
prints or DNA on the money that you held, it’s going
to support . . . Drobnak’s potential testimony that he
gave you the money for some drugs,’’ (2) ‘‘regarding
the likelihood of mistaken interpretation of missing evi-
dence . . . I think it could be very well explained by
. . . the state that this is per statute, even despite the
fact that they didn’t notify you,’’ (3) ‘‘the reason for the
unavailability of the evidence is that it was deposited
wrongfully because you didn’t get notice, but that
wasn’t bad faith,’’ and (4) ‘‘to ensure that you’re not
prejudiced by [the missing currency] . . . I’m going to
allow you full cross-examination to the police about
why you weren’t notified pursuant to the statute.’’
We begin our analysis by setting forth the appropriate
standard of review and the relevant principles of law
that govern the defendant’s claim on appeal. ‘‘With
respect to a due process violation for failure to preserve
[potentially exculpatory evidence] under the federal
constitution, the United States Supreme Court has held
that the due process clause of the fourteenth amend-
ment requires that a criminal defendant . . . show bad
faith on the part of the police [for] failure to preserve
potentially useful evidence [to] constitute a denial of
due process of law. . . .
‘‘In . . . Morales . . . our Supreme Court rejected
the federal bad faith requirement and instead held that,
when a due process claim is advanced under the Con-
necticut constitution, our courts should employ the bal-
ancing test set forth in . . . Asherman . . . . In
determining whether the reasons for the unavailability
of the evidence outweigh the degree of prejudice to the
accused, the Asherman test reviews the totality of the
circumstances surrounding the missing evidence. . . .
Specifically, the Asherman test considers [1] the materi-
ality of the missing evidence, [2] the likelihood of mis-
taken interpretation of it by witnesses or the jury, [3]
the reason for its unavailability to the defense and [4]
the prejudice to the defendant caused by its unavailabil-
ity . . . . The reason for the missing evidence’s non-
availability factor concerns the state’s involvement and
the remaining three factors scrutinize the impact of
the missing evidence on the trial.’’ (Citations omitted;
internal quotation marks omitted.) State v. Fox, 192
Conn. App. 221, 236–37, 217 A.3d 41, cert. denied, 333
Conn. 946, 219 A.3d 375 (2019).
Here, the trial court examined the underlying facts
and determined that the unavailability of the seized
currency did not violate the defendant’s right to due
process under our state constitution. ‘‘[W]hether those
facts constituted a violation of the [defendant’s right
to due process] is a mixed determination of law and
fact that requires the application of legal principles to
the historical facts of the case. . . . Whether the histor-
ical facts as found by the [trial] court constituted a viola-
tion of the [defendant’s right to due process] is subject
to plenary review by this court, unfettered by the clearly
erroneous standard.’’ (Internal quotation marks omit-
ted.) State v. Nunez, 93 Conn. App. 818, 823, 890 A.2d
636, cert. denied, 278 Conn. 914, 899 A.2d 621, cert.
denied, 549 U.S. 906, 127 S. Ct. 236, 166 L. Ed. 2d 186(2006). Applying the Asherman test to the present case,
we conclude that the state’s failure to preserve the
seized currency did not violate the defendant’s due pro-
cess right under the Connecticut constitution.
The first Asherman factor involves the materiality of
the missing evidence. In State v. Asherman, supra, 193
Conn. 695, our Supreme Court set forth the standard
for materiality in cases where evidence was lost or
destroyed prior to forensic testing. Specifically, the
court held that ‘‘if the state has not tested an item of
evidence before its loss or destruction, and no other
facts indicate that test results might have proved unfa-
vorable to the defendant, little more is required than a
showing that the test could have been performed and
results obtained which, in the context of the defendant’s
version of the facts, would prove exculpatory.’’ (Internal
quotation marks omitted.) Id., 725. Our courts subse-
quently have clarified that standard, explaining that
‘‘[missing] evidence is material only if there is a reason-
able probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have
been different.’’ (Internal quotation marks omitted.)
State v. Fox, supra, 192 Conn. App. 237; State v. Estrella,
277 Conn. 458, 485, 893 A.2d 348 (2006) (same).12
The defendant contends that, had the currency been
available, he could have (1) tested it for the absence
of Drobnak’s DNA or fingerprints and (2) demonstrated
that the currency denominations had been larger than
those listed on the police department’s envelope con-
taining the seized currency, thereby negating Drobnak’s
account that he purchased crack cocaine from the
defendant with two $20 bills and one $10 bill. We are
not persuaded.
As an initial matter, the defendant has not established
that forensic testing of the currency for DNA or finger-
prints could have been performed and that those results
would prove to be exculpatory under the circumstances
of this case. Indeed, it is speculative whether forensic
testing yielding cognizable fingerprints or DNA profiles
could have been performed on the currency. The record
indicates that Drobnak was in the Toyota operated by
the defendant for less than one minute. The defendant
has not presented evidence establishing that Drobnak
was in possession of the bills for a substantial period
of time before the alleged transaction or that Drobnak
handled each bill individually. Therefore, it remains
unclear whether a quick exchange of currency would
have been sufficient for Drobnak to leave traceable
fingerprints or DNA profiles on any or all of the bills.
Moreover, given the frequency by which currency
changes hands, and the fact that the bills were commin-
gled when recovered during the arrest, the defendant
has not demonstrated that the forensic lab would have
been able to extract unique and discernable profiles
from the bills.
The defendant argues that the speculative nature of
such testing is irrelevant because he sought to establish
the absence, rather than the presence, of Drobnak’s
DNA and fingerprints. Relying on the language set forth
in Asherman, he claims that tests could have been per-
formed and results obtained, which, whether inconclu-
sive or affirmatively indicating the absence of Drob-
nak’s fingerprints, would have proven exculpatory
within his version of the facts. Stated otherwise, the
defendant contends that the inability to isolate identifi-
able fingerprints or DNA on the currency would have
supported his theory of defense, namely, that no trans-
action transpired between him and Drobnak at the Gulf
station parking lot. However, even if we were to assume
that forensic test results would have been inconclusive,
or that such results actually would indicate the absence
of Drobnak’s fingerprints or DNA, the defendant still
cannot demonstrate a reasonable probability that the
outcome at trial would have been different. As this court
frequently has held, such results would not conclusively
establish that Drobnak never handled the seized cur-
rency, but only that his DNA and fingerprints were not
detectable. See Jason B. v. Commissioner of Correc-
tion, 141 Conn. App. 674, 678, 62 A.3d 1144, cert. denied,
308 Conn. 935, 66 A.3d 498 (2013); Davis v. Commis-
sioner of Correction, 140 Conn. App. 597, 607–608, 59
A.3d 403, cert. denied, 308 Conn. 920, 62 A.3d 1133(2013); State v. Morales, 39 Conn. App. 617, 623–24, 667
A.2d 68, cert. denied, 235 Conn. 938, 668 A.2d 376 (1995).
In addition, there are ‘‘other facts’’ indicating that the
test results in this case might have proved unfavorable
to the defendant. State v. Asherman, supra, 193 Conn.
725. Drobnak testified that he provided the defendant
with currency in exchange for narcotics. Likewise, the
officers observed Drobnak in possession of the crack
cocaine immediately after his encounter with the defen-
dant in a location well-known for narcotics trafficking.
Considered together, these facts suggest that the seized
bills could have tested positive for Drobnak’s DNA and/
or fingerprints, and, therefore, were as likely to be incul-
patory as they were exculpatory. Indeed, had the test
results returned positive for Drobnak’s DNA or finger-
prints, the defendant’s theory of defense would have
been severely undermined.
Finally, although the defendant repeatedly has argued
that the seized currency was comprised of large bills,
he has not provided any additional support for that
contention. It is true that the defendant presented testi-
mony at trial that detailed his alternative and legitimate
sources of income. He has failed, however, to offer any
evidence demonstrating that he received this income,
or withdrew money, exclusively in large bills.13 Accord-
ingly, this claim is also speculative. In the absence of
additional evidentiary support, the defendant cannot
persuasively demonstrate that the ability to examine
the currency prior to trial would have changed the out-
come of the proceeding, especially in light of Pelchat’s
testimony regarding the denominations that were
recorded on the police department’s inventory enve-
lope. We conclude, therefore, that the materiality of the
missing currency weighs in favor of the state.
The second Asherman factor requires us to consider
the likelihood of mistaken interpretation of the missing
evidence by witnesses or the jury. The defendant argues
that the possibility of jury misinterpretation was sub-
stantial in this case because the testimony surrounding
the currency denominations supported the inference
that he was a narcotics dealer. Specifically, the state
presented evidence that the seized currency was com-
prised of several small bills, which corroborated Drob-
nak’s testimony that he provided the defendant with
two $20 bills and one $10 bill in exchange for the crack
cocaine. In the absence of the actual currency, the
defendant argues that the jury was likely to misinterpret
the evidence as supporting the state’s version of the
case.
This court, however, has held that ‘‘[m]istaken inter-
pretation can be minimized at the trial by permitting
testimony on the issue . . . .’’ (Internal quotation
marks omitted.) State v. Fox, supra, 192 Conn. App.
240; see also State v. Thompson, 128 Conn. App. 296,
304, 17 A.3d 488 (2011), cert. denied, 303 Conn. 928, 36
A.3d 241 (2012). In the present case, the trial court
allowed the defendant ‘‘full cross-examination’’ of the
state’s witnesses regarding why the seized currency was
improperly deposited, the specific denominations, and
the inability to test the currency for DNA and finger-
prints. The defendant also testified that he had earned
the money working as a greens mower and that the
money seized was comprised exclusively of large bills.
Moreover, although the court allowed the defendant
considerable leeway to discuss the circumstances sur-
rounding the missing currency, the defendant never
requested an adverse inference instruction or a missing
evidence instruction. See State v. Barnes, 127 Conn.
App. 24, 33–34, 15 A.3d 170 (2011) (weighing mistaken
interpretation prong in state’s favor where defendant
failed to request missing evidence instruction or
adverse inference instruction), aff’d, 308 Conn. 38, 60
A.3d 256 (2013). Accordingly, the jury was presented
with two different versions of the facts and was free
to determine how much weight to afford each version.
We conclude, therefore, that the likelihood of mistaken
interpretation at trial was minimal.
The third Asherman factor concerns the reason for
the nonavailability of the evidence. ‘‘In weighing the
third Asherman factor . . . our cases have focused on
the motives behind the destruction of the evidence.
. . . In examining the motives . . . our courts have
considered such factors as whether the destruction was
deliberate and intentional rather than negligent . . . or
done in bad faith or with malice . . . or with reckless
disregard . . . or calculated to hinder the defendant’s
defense, out of other animus or improper motive, or in
reckless disregard of the defendant’s rights.’’ (Internal
quotation marks omitted.) State v. Thompson, supra,128 Conn. App. 304.
It is undisputed that the police department failed to
notify the defendant of his right to a hearing on the
disposition of the currency and the state concedes that
the currency was improperly deposited into a secure
bank account in violation of § 54-36a (b) (3) (B). The
defendant argues that the police department’s admitted
mishandling of the currency weighs this factor in his
favor. Conversely, the state argues that, in the absence
of a showing of bad faith or improper motive on the
part of the police department, the factor should weigh
in the state’s favor.
In considering whether the state acted with improper
motive, or in reckless disregard of the defendant’s
rights, we must examine the requirements of § 54-36a
(b) (3) (B). Section 54-36a (b) (3) (B) provides in rele-
vant part that ‘‘[i]f the seized property is currency and
is not stolen property, the law enforcement agency seiz-
ing the currency shall, within ten days of such seizure,
notify the defendant . . . if such currency was seized
in connection with a criminal arrest . . . that such
defendant . . . has the right to a hearing before the
Superior Court on the disposition of the currency. Such
defendant . . . may, not later than thirty days after
receiving such notice, request a hearing before the
Superior Court. The court may, after any such hearing,
order that the law enforcement agency, after taking
reasonable measures to preserve the evidentiary value
of the currency, deposit the currency in a deposit
account in the name of the law enforcement agency as
custodian for evidentiary funds at a financial institution
in this state or order, for good cause shown, that the
currency be retained for a period to be determined by
the court. If such defendant or person does not request
a hearing, the law enforcement agency may, after taking
reasonable measures to preserve the evidentiary value
of the currency, deposit the currency in a deposit
account in the name of the law enforcement agency as
custodian for evidentiary funds at a financial institution
in this state.’’ (Emphasis added.)
It is clear from the plain language14 of the statute that
the legislature, in enacting § 54-36a (b) (3) (B), was
particularly concerned with the preservation of cur-
rency by law enforcement in criminal proceedings and
with providing individuals with the right to a hearing
on the disposition of such currency. Indeed, subdivision
(b) (3) was amended in 2001 specifically to provide a
statutory right to notice of the opportunity to request
a hearing before any currency is deposited. See Public
Acts 2001, No. 01-104.15
Section 54-36a (b) (3) (B), therefore, required the
police department to notify the defendant within ten
days of May 9, 2018, the date of his arrest, of his right
to a hearing on the disposition of the seized currency.
During the pretrial hearing, however, the prosecutor
indicated that the police department was using an out-
dated inventory form, which did not include the statu-
tory mandate to inform criminal defendants of their
right to a hearing on the disposition of seized currency.
The prosecutor also indicated that it was the police
department’s standard ‘‘procedure at the time’’ to imme-
diately deposit seized currency into a bank account.
Such procedure clearly violates the requirements of
§ 54-36a (b) (3) (B) and deprives individuals, such as
the defendant, of their statutory right to notice of a
hearing on the disposition of currency seized during an
arrest. Indeed, the police department’s ‘‘outdated’’ form
and practices failed to reflect a statutory amendment
passed in 2001 for the purpose of preserving evidence.
See Public Acts 2001, No. 01-104. As such, the police
department’s procedure stood in direct violation of Con-
necticut law for more than seventeen years. Although
the record does not reflect animus or improper motive
on the part of the individual officers involved, it is
clear that the police department’s policy in this case
constituted a reckless disregard of the defendant’s
rights. Accordingly, the reason for the unavailability of
the evidence weighs in the defendant’s favor.
The final Asherman factor involves the prejudice
caused to the defendant as a result of the unavailability
of the evidence. ‘‘In measuring the degree of prejudice
to an accused caused by the unavailability of the evi-
dence, a proper consideration is the strength or weak-
ness of the state’s case, as well as the corresponding
strength or weakness of the defendant’s case.’’ (Internal
quotation marks omitted.) State v. Morales, 90 Conn.
App. 82, 91, 876 A.2d 561, cert. denied, 275 Conn. 924,
883 A.2d 1250 (2005). Our review of the record leads us
to conclude that the direct and circumstantial evidence
presented by the state provided strong evidence of the
defendant’s guilt. At trial, the state offered Drobnak’s
testimony that he had purchased crack cocaine from
the defendant and had done so on at least two prior
occasions. This court previously has held that such
eyewitness testimony can provide critical evidence in
cases where other evidentiary sources are lost or miss-
ing. See State v. Barnes, supra, 127 Conn. App. 33–36.
Moreover, Drobnak’s account was corroborated by
Lynch and Zelinski, both of whom observed Drobnak
enter the Toyota operated by the defendant and testified
to finding Drobnak in possession of narcotics immedi-
ately after he exited the vehicle. The officers also testi-
fied, in light of their training and experience, that the
limited exchange between Drobnak and the defendant,
which occurred in an area well-known for frequent drug
sales, was behavior indicative of a narcotics transac-
tion. In addition, Drobnak provided the officers with the
cell phone number of the individual he had contacted
to arrange the narcotics transaction, a number belong-
ing to the phone Pelchat recovered from the center
console of the defendant’s vehicle. Finally, the defen-
dant continued to operate the Toyota for two to four
hundred feet after Moreau attempted to conduct a
motor vehicle stop and the defendant stated ‘‘that’s all
I know’’ in response to Lynch’s question regarding the
defendant’s involvement in narcotics trafficking.
By contrast, the defendant presented a largely unsub-
stantiated account of what transpired between himself
and Drobnak during their brief interaction at the Gulf
station. As discussed previously, the defendant could
not demonstrate the currency’s exculpatory value beyond
speculative assertions. Although the defendant did offer
witness testimony that he had legitimate sources of
income, he presented no evidence indicating that he
was either paid in large bills or had withdrawn large
bills from his bank account.
Finally, this court repeatedly has held that a trial
court may ameliorate any prejudice resulting from
unavailable evidence by providing the defendant with
unfettered cross-examination and by allowing the defen-
dant to focus on the state’s failure to produce such
evidence during closing argument. See id., 36 (‘‘any
potential prejudice from the loss of [evidence] was
ameliorated by the court’s allowing the defendant unfet-
tered cross-examination [and] . . . allowing the defen-
dant to use, during closing argument, the fact that the
[evidence was] missing in an attempt to raise reasonable
doubt in the mind of the jury’’); see also State v. Kelsey,
93 Conn. App. 408, 422, 889 A.2d 855 (‘‘the court amelio-
rated any potential prejudice to the defendant by
allowing unfettered cross-examination of the state’s
witnesses regarding the loss of the evidence and in
allowing his closing argument to focus on the state’s
failure to produce the requested items that were seized’’),
cert. denied, 277 Conn. 928, 895 A.2d 800 (2006).
In the present case, the trial court provided the defen-
dant with a full opportunity to question the officers
regarding the improper disposition of the currency and
the accuracy of the denominations listed on the inven-
tory list. He was also able to elicit inconsistencies in
Drobnak’s testimony, including his initial misidentifica-
tion of the defendant. Similarly, the defendant provided
his version of the facts on direct examination and argued
that the currency’s absence prejudiced him during clos-
ing argument. As a result, the defendant’s narrative,
the reasons for the currency’s unavailability, and the
prejudicial concerns stemming from the currency’s
unavailability were all before the jury for consideration.
Accordingly, any prejudice to the defendant resulting
from the missing currency was minimal. We conclude
that the fourth Asherman factor weighs in favor of the
state.
Considering the Asherman factors together, we con-
clude that the defendant was not deprived of his state
constitutional right to due process. Although the police
department’s improper disposition of the currency dem-
onstrated a reckless disregard of the defendant’s statu-
tory right to notice of a hearing on the currency’s dispo-
sition under § 54-36a (b) (3) (B), we find that (1) the
actual bills were immaterial because it is speculative
whether the defendant’s examination or testing of the
currency would have led to exculpatory evidence that
affected the outcome of the proceeding, (2) the curren-
cy’s absence was unlikely to lead to misinterpretation
of the evidence by the jury, and (3) considering the
strength of the state’s case, as well as the defendant’s
opportunity to engage in unfettered cross-examination
and to raise doubt about the significance of the seized
currency during closing argument, the defendant was
not prejudiced by the currency’s unavailability. The
defendant’s due process claim, therefore, must fail.
II
The defendant’s second claim is that the trial court
abused its discretion by denying his postverdict motions
for a new trial or, in the alternative, a mistrial based
on the state’s late disclosure of forensic lab photographs
depicting the narcotics seized from Drobnak’s vehicle
on May 9, 2018. The defendant argues that the state’s
failure to timely disclose potentially exculpatory photo-
graphs violated his right to due process under Brady
v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed.
2d 215 (1963). Specifically, the defendant contends that
the state’s delayed disclosure resulted in prejudice
because it prevented the defendant from (1) pursuing
an alternative trial strategy and (2) accepting a favor-
able plea agreement rather than proceeding to trial. We
are not persuaded.
The following additional facts and procedural history
are relevant to our disposition of this claim. On August
2, 2018, the state provided the defendant with a copy
of the state’s forensic lab report (report), generated by
Ellen Conlon, an analyst with the division of scientific
services of the Department of Emergency Services and
Public Protection (lab), after testing the narcotics
seized from Drobnak’s vehicle. In the section entitled
‘‘Description of Evidence Submitted,’’ the report stated
that the white, rock like substance was contained within
‘‘knotted plastic.’’
On September 20, 2018, the defendant filed a motion
to suppress the currency and the phone seized during
the defendant’s arrest, as well as the defendant’s state-
ments made to law enforcement during the arrest, on
the ground that the police lacked any legal authority
to stop the defendant’s vehicle. The court subsequently
held a suppression hearing on October 4, 2018, during
which Lynch testified that, at the time he approached
Drobnak’s vehicle, he observed Drobnak ‘‘poking at [a]
white rock like substance’’ with the ink cartridge of
a pen.
After the suppression hearing, the defendant noticed
that the report’s description indicating the presence of
‘‘knotted plastic’’ contradicted both Lynch’s testimony
and Drobnak’s formal statement given to the police
department that he had purchased ‘‘loose’’ crack cocaine
from the defendant on May 9, 2018. The defendant sub-
sequently argued that these discrepancies presented a
chain of custody issue and requested that his standby
counsel subpoena the lab for any photographs taken of
the seized narcotics. In response to the defendant’s
subpoena, the lab sent Mark Anderson, its chemistry
department supervisor16 and the technical reviewer17 in
the present case, to testify as to the report and photo-
graphs.
At trial, Lynch again testified that he found Drobnak
poking at a white, rock like substance with the ink
cartridge of a pen. Likewise, Drobnak reiterated that
the narcotics were not wrapped in plastic at the time
he purchased them, but rather were ‘‘handed to [him]
loose.’’
On the second day of trial, the state called Anderson
to testify as to the lab’s procedures and the results obtained
in the defendant’s case. Anderson testified that he over-
saw Conlon’s performance and verified that the white,
rock like substance tested positive for cocaine. During
cross-examination, the defendant inquired as to whether
lab employees took photographs of the narcotics when
they were initially received by the lab. Anderson then
produced two photographs depicting the narcotics, which
were subsequently introduced together as a full exhibit.
Anderson proceeded to testify that, on the basis of the
photographs, the narcotics appeared to be contained
within a knotted plastic bag and identified the location
of the purported plastic within one of the photographs.
He stated that he did not know who placed the narcotics
in knotted plastic, but testified that the narcotics were
in that condition when received by the lab.
At the beginning of the defendant’s case-in-chief, the
defendant called Zelinski to testify as to the condition
of the narcotics when they were initially seized. Specifi-
cally, the defendant inquired whether Zelinski, as the
officer who initially recovered the narcotics from Drob-
nak’s Volvo, remembered whether the narcotics were
wrapped in knotted plastic or whether he manipulated
the narcotics in any way. Zelinski testified that the nar-
cotics were ‘‘loose’’ when he first took possession of
them and that he did not place them in a plastic bag.
After Zelinski’s testimony, the defendant argued, out-
side the presence of the jury, that the inconsistent evi-
dence regarding the knotted plastic presented a signifi-
cant question regarding the chain of custody of the
narcotics such that the test results of the narcotics
should be excluded. The court agreed with the defen-
dant’s contention that ‘‘nobody testified that [the nar-
cotics were] recovered in a knotted plastic bag, and
none of the officers stated that they placed it in a plastic
bag. . . . [S]omewhere along the line, somebody put
the rock like substance in a knotted plastic bag inside
the [evidence] envelope.’’ The court stated, however,
that, because the defendant presented the chain of cus-
tody issue ‘‘last minute,’’ it was going to allow the state
time to investigate the matter and provide an explana-
tion for the inconsistency. The defendant subsequently
moved for a judgment of acquittal based on the chain
of custody issue. He also argued that it would be
improper for the state to present rebuttal witnesses
after having rested its case-in-chief. The court disagreed
and decided that it would delay its ruling on the defen-
dant’s motion until after the state had an opportunity
to present its rebuttal.
On rebuttal, the state recalled Lynch to testify as
to the chain of custody issue. Lynch testified that the
narcotics were ‘‘loose’’ when seized, subsequently pack-
aged only in an official evidence bag, and then trans-
ferred to the police department’s evidence officer, John
Green. On cross-examination, Lynch testified that he
would have documented the presence of knotted plas-
tic, had the narcotics been seized in that condition.
When shown the forensic lab photographs, Lynch stated
that he was unsure whether the photographs depicted
knotted plastic, but agreed that the presence of knotted
plastic would contradict the manner in which he pre-
served the narcotics.
The state then called Green to testify as to the condi-
tion of the narcotics both before the narcotics were
transferred from the police department to the lab and
after the lab returned the narcotics to the police depart-
ment. Green testified that the cocaine was not contained
within knotted plastic when he originally received it
from Lynch. He testified further that, after receiving
the narcotics, he completed a request for analysis form
before the narcotics were ‘‘sealed [and] transported to
the lab.’’
Green proceeded to testify that, upon submitting the
narcotics, he was given a written receipt from the lab
(submission receipt). He testified that neither the request
for analysis form he completed nor the submission
receipt indicated the presence of a knotted plastic bag.
Green also testified that the lab provided an additional
receipt upon returning the narcotics to the police depart-
ment (return receipt). Although the return receipt con-
tained an itemized line listing ‘‘[r]ock-like material in
knotted plastic,’’ a handwritten notation indicated that
the knotted plastic was ‘‘not applicable.’’ When shown
the forensic lab photographs of the narcotics, Green
stated that he did not believe the photographs depicted
a knotted plastic bag.
At the conclusion of Green’s testimony, the state
informed the court that it did not intend to call addi-
tional rebuttal witnesses on the chain of custody issue.
Regarding the defendant’s motion for a judgment of
acquittal, the state argued that the conflicting testimony
surrounding the knotted plastic bag was an issue for
the jury to resolve. In response, the defendant requested
additional testimony from lab employees to clarify ‘‘the
condition they received [the narcotics] in’’ and explain
the significance behind the ‘‘not applicable’’ notation
on the return receipt.
The trial court subsequently denied the defendant’s
motion for a judgment of acquittal, concluding that,
‘‘[u]ltimately it’s up to the jury to decide whether or
not [the narcotics are] in a knotted plastic bag or not,
and that will determine what their verdict may be. And
it’s something [the defendant] could discuss on closing
argument.’’ Afterward, the defendant renewed his request
to call additional lab employees as witnesses. The court
stated that it was ‘‘a little late [to] subpoena’’ lab employ-
ees, but asked the state to contact the lab and produce
any representatives who could explain ‘‘what was actu-
ally received and what was returned.’’
The next morning, the state informed the court that
it was prepared to present testimony from Anderson
and Conlon, the analyst who performed the forensic
testing in the defendant’s case and took the photographs
in question. Before Anderson and Conlon took the
stand, the defendant requested to speak with either
witness regarding any evidence he or she intended to
offer. The court denied the defendant’s request, explain-
ing that Anderson and Conlon were the state’s witnesses,
that it was still the state’s case on rebuttal, and that
the defendant would have an opportunity to question them
on the stand.
Anderson testified that, as a technical reviewer, he
was not responsible for personally examining the nar-
cotics in this case. Rather, his role involved reviewing
photographs and notes from the case file before ulti-
mately approving the forensic report. He clarified that,
based on his view of the photographs taken by Conlon,
he had originally believed that the narcotics were
wrapped in a knotted plastic bag. Anderson proceeded
to testify, however, that he later had an opportunity to
enlarge and review one of the photographs. He explained
that ‘‘[l]ooking at the zoomed-in photograph, it looks
like . . . what I thought was the end piece of some
plastic was probably glare now after I blew it up, and
I can’t definitively say if there’s a knotted piece of plastic
there or not.’’ The court admitted the enlarged photo-
graph as a full exhibit over the defendant’s objection.
The state then called Conlon as a witness, who testi-
fied that, when she prepared the report in the defen-
dant’s case, she was working off the photographs she
had taken of the narcotics as opposed to the actual
narcotics.18 She stated that the original photograph had
led her to believe that the narcotics were contained
within a knotted plastic bag. Upon viewing the enlarged
photograph, Conlon testified that ‘‘there’s no question
it’s—it certainly looks like a reflection here. . . . It
means there was not a piece of plastic in that. . . . I
looked at this and saw a piece of plastic, and obviously
there wasn’t one.’’ The defendant was given a full oppor-
tunity to cross-examine both Anderson and Conlon
regarding the discrepancies between the report, the
original photograph, and the enlarged photograph.
After the jury returned its verdict, the defendant filed
a series of postverdict motions, seeking either a new
trial or a mistrial.19 The defendant’s motions claimed,
inter alia, that the state had violated his right to due
process under Brady v. Maryland, supra, 373 U.S. 87, by
failing to timely disclose the forensic lab photographs.
Specifically, the defendant argued that the report’s
description of ‘‘knotted plastic’’ caused him to pursue
a trial strategy based on the chain of custody. He con-
tended that, had the photographs been disclosed earlier,
he would have pursued alternative trial strategies20 or
reserved his chain of custody theory for closing argu-
ment. In response to the defendant’s motions, the state
argued that it had timely disclosed the report, that it
was not in possession of the forensic lab photographs
until the defendant subpoenaed them during trial, and
that the actual narcotics were made available to the
defendant before the start of trial.
On July 8, 2019, the court heard argument on the
defendant’s postverdict motions. In an oral ruling, the
court held that the defendant had failed to establish a
Brady violation. The court explained that ‘‘[the defen-
dant] could’ve called for further witnesses to testify
after it was established that the picture or the lab report
was in error regarding the knotted plastic bag—there
was a flash or something, some kind of shiny object
that appeared in the initial photograph that made it
look like it possibly could’ve been the knotted plastic
bag, but again, both parties, as well as the court, saw
that it—in fact, it was a flash; some kind of shiny object
made it appear that way. . . . [T]he evidence is not
exculpatory; in fact, it’s inculpatory.’’ The court subse-
quently denied each of the defendant’s motions.
On appeal, the defendant claims that the trial court
abused its discretion by denying his postverdict motions
for a new trial or, in the alternative, a mistrial because
the state’s failure to timely disclose the forensic lab
photographs violated his right to due process under
Brady. The defendant further argues that the delayed
disclosure resulted in prejudice by causing the defen-
dant to (1) forgo alternative trial strategies and (2) reject
a favorable plea agreement. We are not persuaded.
We begin by setting forth the appropriate standard
of review and relevant principles of law that guide our
resolution of the defendant’s claim on appeal. ‘‘In Brady
. . . the United States Supreme Court held that the
suppression by the prosecution of evidence favorable
to an accused . . . violates due process where the evi-
dence is material either to guilt or to punishment, irre-
spective of the good faith or bad faith of the prosecu-
tion. . . . [T]he Brady rule applies not just to
exculpatory evidence, but also to impeachment evi-
dence . . . which, broadly defined, is evidence having
the potential to alter the jury’s assessment of the credi-
bility of a significant prosecution witness. . . . In order
to prove a Brady violation, the defendant must show:
(1) that the prosecution suppressed evidence after a
request by the defense; (2) that the suppressed evidence
was favorable to the defense; and (3) that the evidence
was material. . . .
‘‘[E]vidence known to the defendant or his counsel,
or that is disclosed, even if during trial, is not considered
suppressed as that term is used in Brady. . . . Even
if evidence is not deemed suppressed under Brady
because it is disclosed during trial, however, the defen-
dant nevertheless may be prejudiced if he is unable to
use the evidence because of the late disclosure. . . .
Under these circumstances, the defendant bears the
burden of proving that he was prejudiced by the state’s
failure to make the information available to him at an
earlier time. . . . Whether the [defendant] was
deprived of his due process rights due to a Brady viola-
tion is a question of law, to which we grant plenary
review.’’ (Citation omitted; internal quotation marks
omitted.) State v. Washington, 155 Conn. App. 582, 596–
97, 110 A.3d 493 (2015).
In the present case, we need not reach the issue of
whether the state’s delayed disclosure prejudiced the
defendant because the defendant cannot demonstrate
that the forensic lab photographs were favorable to his
defense. See Morant v. Commissioner of Correction,
117 Conn. App. 279, 296, 979 A.2d 507 (‘‘[i]f . . . the
petitioner has failed to meet his burden as to one of
the three prongs of the Brady test, then we must con-
clude that a Brady violation has not occurred’’), cert.
denied, 294 Conn. 906, 982 A.2d 1080 (2009). Although
there was confusion at trial regarding the presence of
a knotted plastic bag, the enlarged photograph clearly
demonstrated that, what originally appeared to be knot-
ted plastic, was actually glare or reflection from Con-
lon’s camera. Indeed, the defendant conceded during
the posttrial hearing on his motions that ‘‘[t]here’s no
denying that there is no knotted plastic bag inside of
that container.’’ Because the photographs did not depict
knotted plastic, they were not favorable to the defen-
dant because they did not support his challenge to the
chain of custody. See State v. Gradzik, 193 Conn. 35,
40–41, 475 A.2d 269 (1984) (finding no Brady violation
where suppressed testimony was not exculpatory).21
We conclude, therefore, that the defendant has failed
to demonstrate a due process violation under Brady.
Accordingly, the trial court did not abuse its discretion
by denying the defendant’s postverdict motions for a
new trial or, in the alternative, a mistrial.
III
The defendant’s final claim is that the court abused
its discretion by permitting the state to present the
enlarged lab photograph and related witness testimony
on rebuttal. Specifically, the defendant argues that the
court improperly (1) allowed the state to reopen its
case-in-chief after the defendant moved for a judgment
of acquittal, (2) admitted evidence on rebuttal that did
not contradict the defendant’s case-in-chief, and (3)
denied the defendant’s request to review the enlarged
photograph prior to Anderson’s and Conlon’s testi-
mony. He contends that these errors were harmful
because they resulted in the ‘‘collapse’’ of his trial strat-
egy. We conclude, however, that the defendant invited
any error that may have arisen from the court’s decision
to permit such evidence. Accordingly, the defendant’s
claim is unreviewable.
‘‘[T]his court routinely has held that it will not afford
review of claims of error when they have been induced.
. . . As we previously have explained, the term induced
error, or invited error, has been defined as [a]n error
that a party cannot complain of on appeal because the
party, through conduct, encouraged or prompted the
trial court to make the [alleged] erroneous ruling. . . .
It is well established that a party who induces an error
cannot be heard to later complain about that error.
. . . This principle bars appellate review of induced
nonconstitutional error and induced constitutional
error. . . . The invited error doctrine rests [on princi-
ples] of fairness, both to the trial court and to the oppos-
ing party.’’ (Citations omitted; internal quotation marks
omitted.) State v. Martone, 160 Conn. App. 315, 328,
125 A.3d 590, cert. denied, 320 Conn. 904, 127 A.3d
187 (2015).
On rebuttal, the state initially presented testimony
from Lynch and Green. Both witnesses testified as to the
condition of the narcotics before and after the narcotics
had been tested by the lab, and offered their opinion on
the presence of plastic in the original lab photographs.
Upon the conclusion of Green’s testimony, the state
informed the court that it did not intend to call addi-
tional witnesses on the chain of custody issue. The state
argued that the inconsistent testimony regarding the
presence of knotted plastic was a matter to be resolved
by the jury. The court agreed and subsequently denied
the defendant’s motion for a judgment of acquittal.
Although the defendant initially argued against the
state’s introduction of witness testimony on rebuttal,
he repeatedly asked to call additional lab employees to
testify as to the report, the return receipt, and the foren-
sic lab photographs after the court denied his motion
for a judgment of acquittal. Specifically, the defendant
stated that ‘‘I’d like, I guess, [to] call somebody from
the lab . . . back down here and then say if this is the
condition they received it in’’ and ‘‘I want somebody
from the lab or whoever took the photos . . . .’’ The
court denied the defendant’s request to subpoena addi-
tional witnesses, but asked the state to contact the lab
and produce employees that could clarify the docu-
ments and the photographs. Only thereafter did Ander-
son and Conlon examine the enlarged photograph and
testify that, what originally appeared to be knotted plas-
tic, was actually glare or reflected light.22 As a result,
the defendant invited the exact testimony he now com-
plains undermined his defense. Further, the defendant
was given a full and fair opportunity to cross-examine
both Anderson and Conlon regarding the condition in
which the lab received the narcotics and to elicit testi-
mony regarding alleged discrepancies. We therefore
decline to review his claim.
The judgment is affirmed.
In this opinion MOLL, J., concurred.
1
At the time, each officer held the title of investigator and was assigned
to the vice and narcotics unit of the police department. Vice and narcotics
investigators are charged with investigating and arresting individuals that
use, possess, and sell narcotics. Because anonymity is necessary to conduct
undercover investigations and ensure officer safety, vice and narcotics offi-
cers frequently wear plain clothes and utilize unmarked vehicles.
2
Upon entering the Gulf station parking lot, Lynch was able to observe,
and later identify, the defendant as the operator of the Toyota.
3
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
4
Griffin testified that it is against the police department’s policy to initiate
a motor vehicle stop in an unmarked vehicle.
5
The defendant would later claim, first on October 4, 2018, during a
hearing on the defendant’s motion to suppress, and then later at trial, that
the LG phone belonged to his son.
6
At trial, Griffin and Pelchat testified that vice and narcotics officers
typically do not park their unmarked vehicles near marked police cruisers.
This is done to preserve the anonymity of the unmarked vehicle.
7
The substitute information also included a part B information, which
charged the defendant with having previously been convicted of possession
of narcotics with intent to sell in violation of § 21a-277 (a). On April 8, 2019,
the defendant waived his right to a trial on the charge contained in the part
B information and admitted to the prior conviction.
8
The jury did not return a verdict on the lesser included charge of posses-
sion of narcotics, and the state entered a nolle prosequi as to that charge.
9
General Statutes § 54-36a (b) (3) (B) provides in relevant part that ‘‘[i]f the
seized property is currency and is not stolen property, the law enforcement
agency seizing the currency shall, within ten days of such seizure, notify
the defendant . . . if such currency was seized in connection with a criminal
arrest . . . that such defendant . . . has the right to a hearing before the
Superior Court on the disposition of the currency. Such defendant . . .
may, not later than thirty days after receiving such notice, request a hearing
before the Superior Court. The court may, after any such hearing, order
that the law enforcement agency, after taking reasonable measures to pre-
serve the evidentiary value of the currency, deposit the currency in a deposit
account in the name of the law enforcement agency as custodian for eviden-
tiary funds at a financial institution in this state or order, for good cause
shown, that the currency be retained for a period to be determined by the
court. . . .’’
10
A photograph of the police department’s money envelope reflecting
these denominations was admitted into evidence at trial.
11
We note that the state’s argument rested upon an incorrect understand-
ing of the law. Although the United States Supreme Court has held that a
criminal defendant cannot demonstrate a federal due process violation,
based upon the failure of the police to preserve potentially exculpatory
evidence, in the absence of a showing of bad faith on the part of the police;
see Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d
281 (1988); our Supreme Court unequivocally has rejected that standard.
State v. Morales, supra, 232 Conn. 726–27. Rather, our state constitution
requires that trial courts employ the balancing test set forth in State v.
Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S.
1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), in determining whether the
failure of police to preserve potentially exculpatory evidence constitutes a
violation of the defendant’s right to due process. Id.12
In Correia v. Rowland, 263 Conn. 453, 476–77, 820 A.2d 1009 (2003), our
Supreme Court rejected the argument that unpreserved, untested evidence
is exculpatory per se. The court stated that adopting such a presumption
‘‘would stand in violent contradiction of the balancing principles espoused
by the Asherman/Morales rule; by virtue of the fact that the evidence at issue
is unpreserved and untested, the state could never rebut that presumption,
despite the strength of its case as a result of other evidence.’’ Id., 476–77.
Accordingly, a defendant is not entitled to a presumption that the currency
was exculpatory merely because it was lost prior to forensic testing. Rather,
in such instances, the defendant must affirmatively demonstrate that such
testing ‘‘could . . . [be] performed’’ and results obtained that ‘‘would prove
exculpatory.’’ (Emphasis added; internal quotation marks omitted). State v.
Asherman, supra, 193 Conn. 725.
13
At trial, the defendant presented testimony from Adam Stewart, the
defendant’s supervisor at the Lake of Isles golf course in North Stonington,
where the defendant was employed for nineteen days, specifically, April 9
through April 28, 2018. Stewart testified that the defendant worked full-time
as a greens mower during that period and was paid biweekly by either direct
deposit or live check. We note that Stewart’s testimony regarding the form
of payment fails to support the defendant’s contention that he was paid in
large bills. The defendant also introduced testimony from Attorney Shawn
Sims as a representative of the Department of Revenue Services. Sims
testified that the defendant was, ‘‘at some point . . . issued a cigarette
[vendor’s] license.’’ Similarly, although the defendant claimed to have earned
additional income from the lawful sale of cigarettes, he did not introduce
any evidence of sales transactions or proceeds from the alleged sales.
14
‘‘When construing a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to consider the text of the
statute itself and its relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be considered. . . . The
test to determine ambiguity is whether the statute, when read in context,
is susceptible to more than one reasonable interpretation. . . . When a
statute is not plain and unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding its enactment, to
the legislative policy it was designed to implement, and to its relationship to
existing legislation and common law principles governing the same general
subject matter . . . .’’ (Internal quotation marks omitted.) Onofrio v. Min-
eri, 207 Conn. App. 630, 645–46, 263 A.3d 857 (2021).
15
Prior to the 2001 amendment, subdivision (b) (3) read: ‘‘If the seized
property is currency, the law enforcement agency seizing the property may
deposit the currency in a safe deposit box in a financial institution in this
state. No funds may be removed from such safe deposit box unless ordered
by the court. The financial institution at which the safe deposit box is located
shall not be responsible for monitoring activity in the safe deposit box or
insuring that the contents of the safe deposit box are removed in accordance
with the requirements of this subdivision.’’ General Statutes (Rev. to 1999)
§ 54-36a (b) (3) (B), as amended by Public Acts 1999, No. 99-247, § 5.
16
The chemistry department tests evidence for the presence of controlled
drugs and narcotics. Members of the department also produce forensic
reports and testify at trials, when necessary.
17
The technical reviewer performs a supervisory role, evaluating work
performed by analysts in a given case. Technical reviewers must examine
the relevant data and agree with the analyst’s conclusions before the analyst
is permitted to release a formal report.
18
Conlon testified that her typical procedure upon receiving evidence
involved checking the evidence for discrepancies between the physical item
and the police report, photographing the evidence, and re-sealing the evi-
dence before performing an analysis and preparing a report.
19
The defendant filed a motion entitled ‘‘Defendant’s Motion for New Trial
or Alternatively Declare a Mistrial,’’ dated April 8, 2019. The defendant
subsequently filed a ‘‘Supplement to Defendant’s Motion for New Trial or
Alternatively Declare a Mistrial’’ dated May 9, 2019, and an ‘‘Amendment to
Defendant’s Motion for New Trial or Alternatively Declare a Mistrial Dated
April 8, 2019’’ dated June 3, 2019. The defendant also filed a motion entitled
‘‘Defendant’s Motion for New Trial for State’s Failure to Provide Brady
Material,’’ dated April 10, 2019. Each of these motions alleged, inter alia,
that the state had failed to timely disclose the forensic lab photographs in
violation of Brady.
20
Specifically, the defendant claimed that he would have argued that his
arrest was the result of a targeted investigation coordinated by Zelinski and
presented evidence attacking Zelinski’s credibility.
21
In his reply brief to this court, the defendant argues that the forensic
lab photographs were exculpatory by drawing a distinction between the
original and enlarged photographs. Specifically, the defendant claims that
the original, unenlarged photographs were exculpatory because they pur-
ported to show the narcotics wrapped in a knotted plastic bag. He contends
that had the photographs been timely disclosed, and had he learned that
the enlarged photograph demonstrated the absence of knotted plastic, he
would have attempted to introduce only the original photographs at trial.
The defendant cites no authority standing for the proposition that the state
must provide criminal defendants with neutral or inculpatory evidence so
that the defendant can subsequently misrepresent that evidence as exculpa-
tory at trial. See Morant v. Commissioner of Correction, supra, 117 Conn.
App. 286 (‘‘[o]ne does not show a Brady violation by demonstrating that
some of the inculpatory evidence should have been excluded, but by showing
that the favorable evidence could reasonably be taken to put the whole case
in such a different light as to undermine confidence in the verdict’’). We
conclude, therefore, that the defendant’s argument is without merit.
22
Although the defendant initially objected to the introduction of the
enlarged photograph, his theory of objection was that the photograph was
not authenticated, and not that the photograph was unduly prejudicial. After
having an opportunity to examine the photograph, the defendant stipulated
that the enlarged photograph was, in fact, a magnified version of the original.
‘‘Our Supreme Court has explained that, to afford [defendants] on appeal
an opportunity to raise different theories of objection would amount to
ambush of the trial court because, [h]ad specific objections been made at
trial, the court would have had the opportunity to . . . respond.’’ (Internal
quotation marks omitted.) State v. Chiclana, 149 Conn. App. 130, 141, 85
A.3d 1251, cert. denied, 311 Conn. 950, 90 A.3d 977 (2014). Because the
defendant failed to object on the ground that the enlarged photograph was
unduly prejudicial, we conclude that his claim is not reviewable.