State v. Fox ( 2019 )

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STATE OF CONNECTICUT v. MICHAEL FOX
(AC 41009)
Lavine, Keller and Bishop, Js.
Syllabus
Convicted of the crimes of home invasion, conspiracy to commit home
invasion, assault in the first degree, and conspiracy to commit assault
in the first degree in connection with the assault of the victims, H and
E, the defendant appealed to this court. The defendant, along with two
others, allegedly broke into H’s apartment and assaulted H and E. A
police officer, A, testified that he took certain photographs of the scene,
including photographs of certain doors of the premises, but while some
of the photographs resulted in discernable images, others did not. On
appeal, the defendant claimed, inter alia, violations of the federal and
state constitutions. Held:
1. The trial court violated the defendant’s right against double jeopardy
by sentencing him on two counts of conspiracy pursuant to a single
agreement with multiple criminal objectives, as the defendant’s convic-
tion of both conspiracy charges stemmed from a single unlawful agree-
ment to enter the premises and harm E; accordingly, the proper remedy
was to remand the case with direction to vacate the defendant’s convic-
tion of conspiracy to commit assault in the first degree, and resentencing
was not necessary, where, as here, vacatur of the defendant’s conviction
and sentence for conspiracy to commit assault in the first degree would
not alter his total effective sentence.
2. The defendant could not prevail on his claim that the state violated his
right to due process under the Connecticut constitution as a result of
the destruction or loss of photographs depicting the crime scene, which
was based on his claim that the police failed to preserve potentially
exculpatory evidence in the form of photographs of the doors of H’s
apartment, the defendant having failed to meet the balancing test set
forth in State v. Asherman (193 Conn. 695), which was applicable to
his due process claim: the defendant could not establish the materiality
of the indiscernible photographs from the apartment, as the weight
of the evidence established that the defendant unlawfully entered or
remained in H’s apartment, forced entry was not a necessary element
of the home invasion charge, although it could be probative of unlawful
entry, and there was not a reasonable probability that, had the photo-
graphs been discernable, the result of the proceeding would have been
different; moreover, the likelihood of mistaken interpretation of the
missing evidence by the witnesses or jury was low given the ample
testimony regarding the photographs, nothing in the record indicated
that the state’s failure to preserve useful photographic evidence of the
condition of the doors was the result of any bad faith or improper motive
on the part of the state or law enforcement, and the defendant failed
to show that he was prejudiced as a result of the unavailable evidence,
as the court found that the defendant received all evidence available to
the state, including any indiscernible photographs, and the state had a
strong case with regard to the home invasion charge.
3. The trial court did not err when it denied the defendant’s request for an
adverse inference jury instruction related to the failure of the police to
produce discernable photographs of the apartment doors; no factual
basis existed for the specific charge requested by the defendant, as the
record was devoid of any evidence that the police investigation was
incomplete or that, in their investigation, the police had acted negligently
or in bad faith, and even if the trial court should have delivered the
requested instruction, in light of the evidence as a whole, its failure to
do so was harmless because the defendant failed to show that it was
more probable than not that the failure to give the requested instruction
affected the result of the trial.
Argued May 16—officially released August 27, 2019
Procedural History
Substitute information charging the defendant with
the crimes of home invasion, conspiracy to commit
home invasion, assault in the first degree, and conspir-
acy to commit assault in the first degree, brought to
the Superior Court in the judicial district of Ansonia-
Milford, geographical area number twenty-two, and
tried to the jury before Markle, J.; verdict and judgment
of guilty, from which the defendant appealed to this
court. Reversed in part; judgment directed.
Megan L. Wade, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appel-
lant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, was Kevin D. Lawlor, deputy chief
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Michael Fox, appeals
from the judgment of conviction, rendered after a jury
trial, of home invasion in violation of General Statutes
§ 53a-100aa (a) (1), conspiracy to commit home inva-
sion in violation of General Statutes §§ 53a-48 and 53a-
100aa (a) (1), assault in the first degree in violation of
General Statutes § 53a-59 (a) (4), and conspiracy to
commit assault in the first degree in violation of General
Statutes §§ 53a-48 and 53a-59 (a) (4). On appeal, the
defendant claims that (1) the trial court violated the
double jeopardy clause of the United States constitution
by sentencing the defendant on two counts of conspir-
acy on the basis of a single agreement with multiple
criminal objectives, (2) the state violated the defen-
dant’s right to due process under the Connecticut con-
stitution as a result of the destruction or loss of photo-
graphs depicting the crime scene, and (3) the trial court
erred in denying the defendant’s request for an adverse
inference jury instruction. We agree with the defen-
dant’s first claim only and, accordingly, affirm in part
and reverse in part the judgment of the trial court.
The jury reasonably could have found the following
facts. Nicole Hart resided in Milford in an in-law apart-
ment (apartment) connected to a main residence. The
apartment consists of a bedroom, bathroom, kitchen,
and living room. An interior door separates the apart-
ment from the main residence. At the time of the inci-
dent in question, Nicole Hart’s grandmother, Dorothy
Hart, owned the dwelling and lived in the main resi-
dence, along with Nicole Hart’s cousin, Thomas Hart,
and Nicole Hart’s father. Nicole Hart’s cousin, Christo-
pher Hart, also lived in the main residence at the time
of the incident. Nicole Hart and Joe Fox, the defendant’s
brother, were involved romantically, intermittently
from 2007 through October, 2014, and they share a
child together. Joe Fox lived with Nicole Hart in the
apartment for several weeks, from late September
through mid-October, 2014, until the two ended their
relationship in the second week of October, 2014.
On October 26, 2014, Thomas Hart texted Joe Fox,
alerting him that Nicole Hart’s new boyfriend, Anthony
Esposito, was at the apartment. Later in the day,
Thomas Hart drove to a park near the dwelling where
he met Joe Fox, who was driving a vehicle with two
passengers: the defendant and Zachary Labbe. Joe Fox
then followed Thomas Hart to the dwelling where
Thomas Hart, Joe Fox, the defendant, and Labbe exited
their vehicles. At approximately 11:30 p.m., the four
men entered the main residence through the front door
on the left-hand side of the dwelling and proceeded
into the apartment. The defendant, Joe Fox, and Labbe
then entered Nicole Hart’s bedroom where she was in
bed asleep with Esposito. Joe Fox dragged Nicole Hart,
by her neck, from the bedroom into the adjoining
kitchen where he directed expletives at her and stran-
gled her, causing her to lose control of her bladder.
From the kitchen, Nicole Hart could hear crashing
noises coming from the bedroom where the defendant,
Labbe, and Esposito were located. Joe Fox returned
to the bedroom where he, the defendant, and Labbe
punched and kicked Esposito. Nicole Hart went to the
main residence to call 911 from the residence’s landline
telephone. Meanwhile, Joe Fox, the defendant, Thomas
Hart, and Labbe exited the apartment and left in the
same cars in which they had arrived.
Police arrived at the residence at approximately 11:45
p.m. where they found Esposito, who was bleeding and
bruised about his head and face. Police also observed
blood on the floor of the entry way of Nicole’s bedroom
as well as on the mattress in Nicole’s bedroom. An
ambulance took Esposito to the hospital where he was
treated for orbital wall fractures of both eyes, a nasal
bone fracture, a closed head injury, and lacerations to
the inside of his mouth.
Later that same night, police located the vehicle that
Joe Fox had used to transport himself, the defendant,
and Labbe to and from the dwelling. Law enforcement
found Esposito’s blood on the steering wheel, exterior
driver’s side door handle, and exterior driver’s side door
of the vehicle in question. Lieutenant Richard Anderson,
of the Milford Police Department, obtained an arrest
warrant for the defendant. The defendant was arrested
on October 31, 2014, and subsequently charged with
home invasion in violation of § 53a-100aa (a) (1), con-
spiracy to commit home invasion in violation of §§ 53a-
48 and 53a-100aa (a) (1), assault in the first degree as
to Esposito in violation of § 53a-59 (a) (4), and conspir-
acy to commit assault in the first degree as to Esposito
in violation of §§ 53a-48 and 53a-59 (a) (4).
Following a jury trial, the defendant was found guilty
of home invasion, conspiracy to commit home invasion,
assault in the first degree, and conspiracy to commit
assault in the first degree. The defendant received a
total effective sentence of ten years of incarceration.1
This appeal followed. Additional facts will be set forth
as necessary.
I
The defendant first claims that the court violated the
double jeopardy clause of the United States constitution
by sentencing him on two counts of conspiracy pursu-
ant to a single agreement with multiple criminal objec-
tives. Specifically, he argues that the court committed
plain error when it rendered judgment and sentenced
him on the charges of conspiracy to commit home inva-
sion and conspiracy to commit assault in the first degree
because both of those counts stemmed from a single
unlawful agreement to enter the apartment and harm
Esposito. In its reply brief, the state agrees with the
defendant that there was only one conspiracy and there-
fore the defendant’s conviction of two counts of con-
spiracy constitutes a violation of the defendant’s right
against double jeopardy. We, too, agree that a double
jeopardy violation exists and that the appropriate rem-
edy is to reverse the judgment of conspiracy to commit
assault in the first degree and remand the case to the
trial court with direction to vacate the defendant’s con-
viction of conspiracy to commit assault in the first
degree.
The defendant concedes, and the state agrees, that
his double jeopardy claim was not preserved at trial
and thus seeks review pursuant to State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by
In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015).2
The first Golding prong is met because the record is
adequate for review. There is a clear record of the
allegations underlying the defendant’s convictions, as
well as a clear record of the offenses of which he was
convicted. ‘‘A defendant may obtain review of a double
jeopardy claim, even if it is unpreserved, if he has
received two punishments for two crimes, which he
claims were one crime, arising from the same transac-
tion and prosecuted at one trial . . . .’’ (Internal quota-
tion marks omitted.) State v. Urbanowski, 163 Conn.
App. 377, 386–87, 136 A.3d 236 (2016), aff’d, 327 Conn.
169 (2017). Additionally, ‘‘claims of double jeopardy
involving multiple punishments in the same trial present
a question of law to which we afford plenary review.’’
State v. Kurzatkowski, 119 Conn. App. 556, 568, 988
A.2d 393, cert. denied, 296 Conn. 902, 991 A.2d 1104
(2010); see also State v. Burnell, 290 Conn. 634, 642,
966 A.2d 168 (2009); State v. Culver, 97 Conn. App. 332,
336, 904 A.2d 283, cert. denied, 280 Conn. 935, 909 A.2d
961 (2006).
Further, the second Golding prong is met because a
claim of a double jeopardy violation is of constitutional
magnitude. The double jeopardy clause of the fifth
amendment to the United States constitution provides
that no person shall ‘‘be subject for the same [offense]
to be twice put in jeopardy of life or limb . . . .’’ U.S.
Const., amend. V.
The third Golding prong is also met because in the
present case, the trial court convicted and sentenced
the defendant on separate charges of conspiracy to
commit home invasion in violation of §§ 53a-48 and 53a-
100aa (a) (1), and conspiracy to commit assault in the
first degree in violation of §§ 53a-48 and 53a-59 (a) (4)
that were based on a single conspiratorial agreement.
‘‘Whether the object of a single agreement is to commit
one or many crimes, it is in either case that agreement
which constitutes the conspiracy which the statute pun-
ishes. The one agreement cannot be taken to be several
agreements and hence several conspiracies because it
envisages the violation of several statutes rather than
one. . . . The single agreement is the prohibited con-
spiracy, and however diverse its objects it violates but
a single statute . . . .’’ (Citations omitted; internal quo-
tation marks omitted.) Braverman v. United States, 317
U.S. 49, 53–54, 63 S. Ct. 99, 87 L. Ed. 23 (1942). ‘‘[U]nder
Connecticut law; see, e.g., State v. Ortiz, 252 Conn. 533,
559, 747 A.2d 487 (2000); it is a double jeopardy violation
to impose cumulative punishments for conspiracy
offenses if they arise from a single agreement with
multiple criminal objectives.’’ State v. Wright, 320 Conn.
781, 829, 135 A.3d 1 (2016). Here, both conspiracy con-
victions arose from the single agreement reached by
the defendant, Joe Fox, Labbe, and Hart to enter the
apartment and inflict serious injury to Esposito. There-
fore, the charges in question arise out of the same act
or transaction.
The fourth Golding prong is met because the state
has failed to demonstrate that the alleged constitutional
violation was harmless beyond a reasonable doubt. To
the contrary, the state has conceded that the two con-
spiracy convictions violate the double jeopardy clause
of the fifth amendment. Although the sentence imposed
for conspiracy to commit assault in the first degree did
not lengthen the total effective sentence imposed in
this case; see footnote 1 of this opinion; other adverse
consequences may result from the sentence. The
Supreme Court has concluded that a cumulative convic-
tion has ‘‘potential adverse collateral consequences’’3
that can independently qualify as a punishment. (Inter-
nal quotation marks omitted.) Rutledge v. United States,
517 U.S. 292, 302, 116 S. Ct. 1241, 134 L. Ed. 2d 419
(1996).
When a defendant’s double jeopardy rights have been
violated because the court has imposed multiple senten-
ces for conspiracy offenses that arose out of the same
agreement, the proper remedy is for this court to
reverse the judgment of conviction for the lesser offense
of conspiracy, remand the case to the trial court with
direction to vacate the conviction for the lesser offense
of conspiracy, and to resentence the defendant accord-
ingly. See State v. Wright, supra, 320 Conn. 829 (holding
vacatur of lesser conspiracy offense, rather than
merger, was proper remedy in case involving multiple
punishments for cumulative conspiracy convictions
arising from single agreement);4 State v. Steele, 176
Conn. App. 1, 38, 169 A.3d 797, cert. denied, 327 Conn.
962, 172 A.3d 1261 (2017) (holding vacatur of lesser
conspiracy offense, rather than merger, was proper
remedy in case involving multiple punishments for
cumulative conspiracy convictions arising from single
agreement).
At oral argument, both parties agreed that it is not
necessary to resentence the defendant because the
requested remedy will not alter the defendant’s total
sentence. We agree that, while the trial court retains
the authority to restructure the defendant’s sentence if
that court determines that doing so is necessary to
retain its original sentencing intent, it is unnecessary
for this court to remand the case to the trial court
for resentencing because vacatur of the defendant’s
conviction and sentence for conspiracy to commit
assault in the first degree will not alter his total effective
sentence. See footnote 1 of this opinion; see also State
v. Johnson, 316 Conn. 34, 42–43, 111 A.3d 447 (2015);
State v. Steele, supra, 176 Conn. App. 38–39.
II
The defendant next claims that the state violated his
right to due process under the Connecticut constitution
as a result of the ‘‘destruction or loss’’ of photographs
depicting the crime scene. Despite the fact that the
defendant refers to the photographs as destroyed or
lost, the state counters, and we agree, that the photo-
graphs exist, but are merely indiscernible. The state
contends that the record is inadequate to review this
claim because the trial court did not make any factual
findings concerning the indiscernible photographs. In
the alternative, the state argues that, even if the record is
adequate for review, the defendant’s claim fails because
the defendant cannot show that a constitutional viola-
tion exists and deprived him of a fair trial. We disagree
with the state that the record is inadequate to review
the claim, but agree with the state that, although the
record is adequate for review and the defendant raises
a constitutional claim, his claim ultimately fails because
the alleged constitutional violation does not exist and
did not deprive the defendant of a fair trial.
The following facts are relevant to our conclusion.
At trial, Nicole Hart testified to the following facts: Joe
Fox lived in the apartment with her for several weeks
around October, 2014. Nicole Hart and Joe Fox ended
their relationship around the second week of October,
2014, at which time Nicole Hart asked Joe Fox to leave
the apartment and he moved out. Joe Fox took his
belongings from the apartment and he did not have
keys to the apartment or the main residence. Nicole
Hart routinely locked the doors to her apartment and
to her bedroom, ‘‘for sleeping purposes,’’ and the doors
were locked on the night of October 26, 2014, when
she and Esposito went to sleep in her bedroom.
On the night of October 26, 2014, Nicole Hart awoke
to the sound of two loud bangs, followed by the defen-
dant, Joe Fox, and Labbe entering her bedroom. While
the defendant, Joe Fox, and Labbe were punching and
kicking Esposito, Nicole Hart asked them what they
were doing in her house and to leave. Following the
incident at the apartment, Nicole Hart observed damage
to the apartment’s entrance door and her bedroom door.
Specifically, she observed that the apartment entrance
door was ‘‘kicked in’’ and a screw was missing from
the locking mechanism. She also observed that the
right-hand frame of her bedroom door had broken dur-
ing the incident and the bedroom door did not lock as
of the time of trial.
Other witnesses testified as to the condition of the
apartment entrance door and bedroom door following
the incident on October 26, 2014. Erika Berrios, then
girlfriend of Nicole Hart’s cousin, Christopher Hart, tes-
tified that Nicole Hart routinely locked and closed the
apartment entrance door when she had visitors. Berrios
further testified that the day following the incident, she
observed damage to the apartment entrance door and
noted that the lock was out of place. She also testified
that Nicole Hart’s bedroom door was ‘‘completely . . .
damaged’’ and not ‘‘even worth fixing.’’
Thomas Hart testified that on the night of October
26, 2014, he observed Joe Fox trying to enter the apart-
ment, but not being able to open the locked door. He
further testified that he then left Joe Fox, entered the
main residence, and subsequently heard a loud bang.
Anderson testified that he responded to the residence
on October 26, 2014, following the incident, and
observed damage to the apartment’s entrance door and
Nicole Hart’s bedroom door. Specifically, he observed
a broken door jamb and ‘‘some locking mechanism on
the floor’’ with regard to the apartment’s entrance door.
With regard to Nicole Hart’s bedroom door, he testified
that it ‘‘looked like it was forced open,’’ the door jamb
was broken, and a locking mechanism was on the floor.
Susan Delgado, a Hart family friend and the sole
defense witness, testified that the apartment entrance
door was ‘‘never locked.’’ She further testified that she
spoke with Anderson by phone and went to the apart-
ment the day following the incident and she did not
observe damage to any of the doors in the apartment.
On cross-examination, however, Delgado provided con-
flicting testimony regarding how many days following
the incident she spoke with Anderson and visited the
apartment.
Anderson testified to the following facts: As part of
his investigation of the scene, he photographed relevant
areas of the main residence and the apartment including
the outside of the main residence, the entrance door
to the apartment, the apartment bedroom door, the
apartment bedroom, kitchen areas, and blood on the
floor of the entryway to the apartment bedroom. For
unknown reasons, some of the photographs Anderson
took resulted in discernable images while others did
not. Anderson noted, ‘‘[i]t’s electronic equipment, some-
times it works, most of the time it works, but this time
all the pictures did [not] come out.’’ It was not until
a later date that Anderson realized that some of the
photographs taken on October 26, 2014, did not ‘‘come
out.’’ Three of the seven photographs taken by Ander-
son on October 26, 2014, were discernable and were
entered into evidence as State’s Exhibits 6A, 6B, and
6C (photographs of blood on the floor of the entryway
to the bedroom, blood on Nicole Hart’s mattress, and
exterior of the main residence, respectively).5 Anderson
took the photographs of the main residence and the
apartment using a police issued Nikon digital camera.
He did not know how old the camera was and he did
not know whether the camera had a memory chip.
Anderson testified that he took the photographs
according to procedure and he thought he performed
diligently. Anderson also testified on cross-examination
that he only takes the photographs at the scene, while
an evidence technician at the ID bureau extracts the
photographs from the camera and prints the photo-
graphs. On cross-examination, when asked whether
someone could have deleted photographs of the doors
in question, Anderson responded, ‘‘[t]hey could have,
yes.’’ On redirect examination, Anderson reiterated that
some of the photographs from October 24, 2016, did
not come out and that he personally observed damage
to both the apartment entry door and Nicole Hart’s
bedroom door.
On the last day of the state’s case-in-chief, the defen-
dant argued to the court that the state had failed to turn
over all potentially exculpatory material in violation of
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963). Specifically, the defendant argued
that the state, or other governmental agencies, failed
to turn over a video recording of inventory of a vehicle
seized in connection with the case. The defendant also
argued that he was not aware that photographs taken
at the scene were missing and that he should have been
provided with the opportunity to review the memory
card from the police department’s digital camera, if one
so existed. In response, the state argued that, during
discovery, it had provided the defendant with the video
recording of the vehicle, as well as the seven photo-
graphs taken at the scene on October 24, 2016.6 The
state noted that three of the seven photographs, which
presumably would have included images of the apart-
ment doors, were ‘‘barely legible,’’ did not ‘‘come out,’’
and were ‘‘overexposed.’’ At a later point in trial, the
state described one of the photographs as ‘‘completely
white,’’ one as ‘‘completely dark,’’ several as ‘‘grainy,’’
and noted ‘‘that you can’t see what they are.’’ The state
further noted that the photographs of the doors were
not lost, rather, Anderson did not notice ‘‘until a later
date that they did not come out.’’ The state noted that
it had provided all seven photographs to the defendant
and that he had access to the ones that did not
‘‘come out.’’
The court noted that it was satisfied that the state
had turned over all available evidence to the defendant,
and that before the trial, the defendant was aware of
the issue with the indiscernible photographs. Later in
the trial, the court independently raised the defendant’s
claim of a Brady violation and again concluded that
the defendant had received all evidence available to
the state, that the defendant had the ability to cross-
examine Anderson as to the indiscernible photographs,
and that no Brady violation existed.
On appeal, the defendant claims that his conviction of
home invasion and conspiracy to commit home invasion
violates his right to due process because the police
failed to preserve potentially exculpatory evidence in
the form of photographs of the doors of the apartment.7
It is not disputed that the defendant did not raise a due
process violation at trial, and therefore the defendant
seeks review of the unpreserved claim pursuant to State
v. Golding, supra, 213 Conn. 239–40. See footnote 2 of
this opinion.
Under the first Golding prong, we conclude that we
have a sufficient record on appeal to consider the claim.
Anderson testified at length about the photographs he
took at the scene on October 26, 2014, and the fact that
some of the photographs were indiscernible. He noted
that he took photographs of the apartment’s entryway
door and Nicole Hart’s bedroom door, but that neither
of these photographs produced clear images. The defen-
dant had ample opportunity to cross-examine Anderson
as to the indiscernible photographs and did in fact ques-
tion him at length about the camera used, the witness’s
camera training, the procedure for extracting photo-
graphs from the camera, and the reason the photo-
graphs did not come out. In addition to both parties
questioning Anderson, the court ruled on the defen-
dant’s oral motion in which he claimed that he was not
aware that some of the photographs taken at the scene
were indiscernible and that he should have been given
an opportunity to review the camera’s memory card.
The court concluded that the defendant had access to
all evidence in the possession of the state, and that the
state had no further obligation to provide the defendant
with information to which it did not itself have access.
The state claims that the record is inadequate for review
because the trial court did not weigh ‘‘the reasons for
the unavailability of the evidence against the degree of
prejudice to the accused.’’ (Internal quotation marks
omitted.) State v. Joyce, 243 Conn. 282, 301, 705 A.2d
181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523,
140 L. Ed. 2d 674 (1998). We conclude, on the basis of
the testimony adduced at trial and the trial court’s ruling
with regard to the indiscernible photographs, that the
record is adequate to review the claim and, therefore,
the first Golding prong is met.8
The second Golding prong is also met because the
defendant’s claim is of constitutional magnitude alleg-
ing the violation of a fundamental right. Specifically,
the defendant claims a due process violation in deroga-
tion of his rights under article first, § 8, of the constitu-
tion of Connecticut.9
The defendant’s claim fails, however, on the third
Golding prong because the defendant’s alleged due pro-
cess violation does not exist and the defendant was not
deprived of a fair trial. ‘‘With respect to a due process
violation for failure to preserve under the federal consti-
tution, the United States Supreme Court has held that
the due process clause of the fourteenth amendment
requires that a criminal defendant . . . show bad faith
on the part of the police [for] failure to preserve poten-
tially useful evidence [to] constitute a denial of due
process of law.’’ (Internal quotation marks omitted.)
State v. Smith, 174 Conn. App. 172, 182, 166 A.3d 691,
cert. denied, 327 Conn. 910, 170 A.3d 680 (2017); see
also Arizona v. Youngblood 488 U.S. 51, 57–58, 109 S.
Ct. 333, 102 L. Ed. 2d 281 (1988).
In State v. Morales, 232 Conn. 707, 720–21, 657 A.2d
585 (1995), our Supreme Court rejected the federal bad
faith requirement and instead held that, when a due
process claim is advanced under the Connecticut con-
stitution, our courts should 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 reasons for the unavailability of the evidence out-
weigh the degree of prejudice to the accused, the Asher-
man test reviews the totality of the circumstances sur-
rounding the missing evidence. State v. Morales, supra,
720–21. Specifically, the Asherman test considers ‘‘the
materiality of the missing evidence, the likelihood of
mistaken interpretation of it by witnesses or the jury,
the reason for its unavailability to the defense and the
prejudice to the defendant caused by its unavailability
. . . .’’ Id., 722–23. The reason for the missing evi-
dence’s nonavailability factor concerns the state’s
involvement and the remaining three factors scrutinize
the impact of the missing evidence on the trial. Applying
this test, we conclude that the defendant’s right to due
process under the state constitution was not violated.
The first Asherman factor is the materiality of the
missing evidence. ‘‘The evidence is material only if there
is a reasonable 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. Estrella, 277 Conn. 458, 485, 893 A.2d
348 (2006). On the other hand, ‘‘[t]he defendant’s mere
speculation that the [lost evidence] could have been
beneficial or not does not meet the standard necessary
to prove materiality.’’ (Emphasis in original.) State v.
Barnes, 127 Conn. App. 24, 33, 15 A.3d 170 (2011), aff’d,
308 Conn. 38, 60 A.3d 256 (2013).
Under this standard, the defendant cannot establish
the materiality of the indiscernible photographs from
the apartment. As a preliminary matter, the photographs
in question were not lost or missing, but rather, the
photographs of the apartment doors were indiscernible.
The trial court ruled that the state turned over all evi-
dence in its possession to the defendant, including the
photographs that did not produce clear images. Never-
theless, the defendant contends that his conviction of
home invasion and conspiracy to commit home invasion
should be reversed and remanded as a result of the
alleged due process violation.
In light of the language of the home invasion statute
under which the defendant was convicted, there is not a
reasonable probability that the result of the proceeding
would have been different, even if the photographs were
discernable. Section 53a-100aa (a) provides in relevant
part: ‘‘A person is guilty of home invasion when such
person enters or remains unlawfully in a dwelling
. . . .’’ The express language of the statue does not
require that the defendant enter the dwelling using
force, or that he cause any damage upon entering.
Nicole Hart’s testimony established that the defendant
did not have permission to enter the apartment, and
also that he remained unlawfully in the apartment on
October 26, 2014, after she told him and the other perpe-
trators to leave. Although forced entry is not a necessary
element to prove home invasion, evidence of forced
entry may be probative of unlawful entry and, thus,
three witnesses testified as to the damaged doors of
the apartment. Even though the defendant’s witness,
Susan Delgado, testified that the doors were not dam-
aged, the defendant is incorrect in his assertion that
had the photographs been discernable, the result of the
proceeding would have been different. The weight of
the evidence presented at trial established that the
defendant unlawfully entered or unlawfully remained
in the apartment. We are not persuaded, in light of the
evidence in its entirety and the essential elements of
the offense, that there is a reasonable probability that
had the photographs of the doors been discernible, the
result of the proceeding would have been different.
‘‘In further examining the materiality of potentially
exculpatory evidence under the Asherman test, a criti-
cal factor that our courts have considered is the defen-
dant’s lack of interest in the evidence.’’ State v. Morales,
39 Conn. App. 617, 625, 667 A.2d 68, cert. denied, 235
Conn. 938, 668 A.2d 376 (1995). ‘‘The fact that a defen-
dant failed to request the evidence goes to the issue
of materiality and whether the defendant deemed it
significant.’’ State v. Morales, supra, 232 Conn. 712 n.7.
Here, the defendant failed to raise the issue of the indis-
cernible photographs, or his ability to review the cam-
era from which they were taken, until the last day of
the state’s case-in-chief. Outside the presence of the
jury, the defendant maintained that he did not learn of
the missing photographs until Anderson’s testimony.
The state, however, claimed that, during discovery, it
had turned over all photographs to the defendant,
including the three that were indiscernible. The prose-
cutor also claimed that he and the defendant had dis-
cussed the issue of the photographs ‘‘numerous times’’
prior to trial. The court ruled that it was satisfied that
the state had turned over the evidence in its possession
and that the defendant should have raised the issue
during discovery, rather than on the last day of the
state’s case-in-chief. Therefore, because there is not a
reasonable probability that the evidence would have
changed the outcome of the trial, and because the defen-
dant showed a lack of interest in the evidence prior to
trial, the defendant is unable to establish the materiality
of the indiscernible photographs.
The second Asherman factor considers the likelihood
of mistaken interpretation of the missing evidence by
witnesses or the jury. Mistaken interpretation can be
‘‘minimized at the trial by permitting testimony on the
issue . . . .’’ State v. Leroux, 18 Conn. App. 223, 233,
557 A.2d 1271, cert. denied, 212 Conn. 809, 564 A.2d
1072 (1989). In this case, the likelihood of mistaken
interpretation of the missing evidence by witnesses or
the jury is low. Anderson testified, on both direct and
cross-examination, that he took photographs on the
scene and that some of the photographs did not come
out. Given the ample testimony regarding the missing
photographs, the likelihood of mistaken interpretation
by the witnesses or jury is low.
The third Asherman factor concerns the reasons for
the nonavailability of the evidence, namely, the motives
underlying the loss of the evidence. In analyzing this
factor, courts examine ‘‘whether the destruction was
deliberate and intentional rather than negligent . . . or
done in bad faith or with malice . . . 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. Weaver, 85 Conn. App. 329, 353, 857 A.2d 376,
cert. denied, 271 Conn. 942, 861 A.2d 517 (2004). Here,
nothing in the record indicates that the state’s failure
to preserve useful photographic evidence of the condi-
tion of the doors was the result of any bad faith or
improper motive on the part of the state or law enforce-
ment. Anderson testified that, as part of routine proce-
dure, he took photographs of the main residence and the
apartment, including the apartment entry and bedroom
doors. He further testified that, for an unknown reason,
some of the photographs did not come out, but that
he had followed procedure and performed his duties
diligently. In ruling on the defendant’s oral motion
regarding the photographs, the court observed that the
defendant had received all evidence available to the
state, including any indiscernible photographs. There-
fore, the defendant is unable to establish that the indis-
cernible photographs are the result of improper motive
or animus on the part of the state.
The final Asherman factor concerns the prejudice
caused to the defendant as a result of the unavailability
of evidence. ‘‘In measuring the degree of prejudice to
an accused caused by the unavailability of the evidence,
a proper consideration is the strength or weakness of
the state’s case, as well as the corresponding strength or
weakness of the defendant’s case.’’ (Internal quotation
marks omitted.) State v. Joyce, supra, 243 Conn. 303.
Under this analysis, the state had a strong case with
regard to the home invasion claim. Nicole Hart testified
that the defendant did not have permission to be in the
apartment, that the doors were locked when she and
Esposito went to sleep on October 26, 2014, and that
she awoke to the sound of her doors being forcefully
opened. Nicole Hart also testified that she told the
defendant, Joe Fox, and Labbe to leave the apartment
as they were punching and kicking Esposito. Further,
she testified that her doors sustained physical damage
on the night in question. In addition to Nicole Hart’s
testimony, Anderson, Thomas Hart, and Erika Berrios
all testified that they observed physical damage to the
doors of the apartment. Given the testimony of the
state’s witnesses, the state’s case was strong with regard
to whether the defendant unlawfully entered or unlaw-
fully remained in the apartment. In contrast, the defen-
dant presented one witness, Susan Delgado, who testi-
fied that she did not observe damage to the doors on
the day following the incident. The defendant also
extensively questioned Anderson on cross-examination
as to the reason for the indiscernible photographs. As
a result of the foregoing evidence, we cannot conclude
that the defendant was prejudiced as a result of the
unavailable evidence.
For the foregoing reasons, we conclude that the
defendant has failed to demonstrate that his right to
due process under the Connecticut constitution has
been violated by the state’s failure to produce discern-
ible photographs of the doors at issue.
III
The defendant next claims that the trial court erred
in denying his request for an adverse inference jury
instruction related to the failure of the police to produce
discernable photographs of the apartment doors. We
disagree.
The following additional facts are relevant to our
analysis. At trial, the defendant filed a request to charge,
including a proposed instruction as to the indiscernible
photographs of the doorways and the investigation by
the police as a whole. The proposed instruction read
as follows: ‘‘Investigation which is thorough and con-
ducted in good faith may be more credible while an
investigation which is incomplete, negligent, or in bad
faith may be found to have lesser value or no value at
all. In deciding the credibility of the witnesses and the
weight, if any, to give the prosecution evidence, con-
sider whether the investigation was negligent and/or
conducted in bad faith. If the police inadequately inves-
tigated one matter, you may infer that the prosecution
also inadequately investigated other matters. Based on
this inference alone you may disbelieve the prosecution
witnesses and evidence. This may be sufficient by itself
for you to have a reasonable doubt as to the defendant’s
guilt.’’ The court heard from the parties before the
defendant presented his witness, Susan Delgado, and
noted that ‘‘I don’t know if it was negligent or not that
the picture didn’t come out because there are no facts
underlying it. . . . I can’t find an evidentiary basis to
say that it’s negligent that something didn’t come out.’’10
After hearing from Delgado, the court revisited the
defendant’s adverse inference instruction request and
noted that the defendant’s requested instruction ‘‘would
have to be based on some sort of evidence . . . that the
police were negligent in some way. [Susan Delgado’s]
testimony does not in any way indicate anything about
the police investigation really. . . . I’m going to decline
giving that instruction. I just don’t think there’s any
evidence there.’’
‘‘[T]o prevail on appeal, [the defendant] must show
both that the trial court abused its discretion in refusing
to give the adverse inference instruction on the [missing
evidence] and that it was more probable than not that
the failure to give the requested instruction affected the
result of the trial.’’ (Internal quotation marks omitted.)
State v. Johnson, 67 Conn. App. 299, 314, 786 A.2d 1269
(2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002).
‘‘Although an adverse inference instruction may be
appropriate under certain circumstances, a trial court
is not required to give an adverse inference instruction
in every case involving missing evidence.’’ (Internal quo-
tation marks omitted.) Id.
We agree with the court’s determination that no fac-
tual basis existed for the specific charge requested by
the defendant. The record is devoid of any evidence
that the police investigation was incomplete or that, in
their investigation, the police had acted negligently or in
bad faith. Anderson testified that the police department
taught him how to take photographs using the camera.
He further testified that his responsibilities did not
include transferring the digital images for printing.
Anderson testified that he followed procedure, believed
he was diligent, and that sometimes the photographs
from investigations did not come out. He also testified
that part of his due diligence as a police officer includes
ensuring that photographs have been taken by
reviewing them. In this case, Anderson reviewed the
photographs at a later date, at which point he realized
three were indiscernible. The reason for the indiscerni-
bility of the photographs remains unknown, but none
of the evidence adduced at trial attributes their condi-
tion to an incomplete, negligent, or bad faith police
investigation.
Even if we were to conclude that the court should
have delivered the requested instruction, we are per-
suaded in light of the evidence as a whole that its failure
to do so was harmless because the defendant has failed
to show that it was more probable than not that the
failure to give the requested instruction affected the
result of the trial. The state’s case included three eyewit-
nesses who testified that the apartment doors were
damaged after the incident. Additionally, Nicole Hart
and Esposito both positively identified the defendant
as one of the intruders and perpetrators of the assault.
In light of the ample evidence that the defendant entered
and remained unlawfully in the apartment, had the court
delivered the requested adverse inference instruction
to the jury, we do not agree that it is more probable
than not that the outcome of the trial would have been
different. Accordingly, we conclude that the court did
not err in denying the defendant’s requested adverse
inference jury instruction regarding the police investi-
gation.
The judgment is reversed only as to the conviction
of conspiracy to commit assault in the first degree and
the case is remanded with direction to vacate the defen-
dant’s conviction of that offense. The judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
Pursuant to statutory mandatory minimum sentence provisions, the trial
court imposed a sentence of ten years of incarceration for the count of
home invasion, ten years for the count of conspiracy to commit home
invasion, and one year to serve for the counts of assault in the first degree
and conspiracy to commit assault in the first degree. The court ordered
each of the sentences to run concurrently to each other, for a total effective
sentence of ten years of incarceration.
2
‘‘[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 constitutional
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; see also In re Yaisel R., supra, 317 Conn. 781
(modifying third prong of Golding by eliminating word ‘‘clearly’’ before
words ‘‘exists’’ and ‘‘deprived’’).
3
The United States Supreme Court recognized potential adverse collateral
consequences stemming from cumulative convictions such as delaying a
defendant’s eligibility for parole, increasing a sentence under a recidivist
statute for a future offense, impeaching a defendant’s credibility, or stigma-
tizing the defendant. Rutledge v. United States, 517 U.S. 292, 302, 116 S. Ct.
1241, 134 L. Ed. 2d 419 (1996)
4
The court in Wright extended our Supreme Court’s holding in State v.
Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), which established vacatur as
the proper remedy for double jeopardy violations resulting from the imposi-
tion of multiple sentences related to greater and lesser included offenses.
State v. Wright, supra, 320 Conn. 829.
5
The state also entered into evidence twenty-two photographs of the
crime scene, which were taken at a later date following the October 24,
2016 incident. Anderson did not take the twenty-two additional photographs
of the crime scene. The clarity of these photographs, State’s Exhibits 1A-
1U and 3A, was not in dispute at trial.
6
The state entered into evidence only three of the seven photographs
taken at the scene on October 26, 2014 (State’s Exhibits 6A, 6B, and 6C).
7
At trial, the defendant claimed that, had the photographs been discern-
ible, they could have been exculpatory because they may have shown lack
of forced entry into the apartment. The state noted that forced entry is not
an element of a home invasion claim. The court noted that the defendant
had not provided any evidence in support of the fact that the photographs
would have been exculpatory.
8
In response to the defendant’s oral claim of a Brady violation, the court
noted, ‘‘if they handed over the discovery and you fully reviewed the discov-
ery, and you saw that there were not pictures, something that you felt was
important, you didn’t address it with the state’s attorney?’’ The court further
noted, ‘‘[y]ou have what they have. You have an explanation, you may not
like what happened or you may feel that that’s wrong, you know, that you
cross-examined the police officer as to how did it happen, why did it happen.
You had that ability. You asked the questions. And so, I’m not left with any
evidence of any type of Brady violations at this point in time.’’
9
The due process clause provides in relevant part: ‘‘No person shall . . .
be deprived of life, liberty or property without due process of law . . . .’’
Conn. Const., art. I, § 8.
10
During the court’s colloquy with defense counsel, the court asked
whether the police have a duty to take photographs of a crime scene or if
they can use their discretion. The court appeared to draw a distinction
between whether the issue with the photographs was the result of negligent
conduct by the police or whether it was attributable to unknown technical
reasons, or in the court’s words, a ‘‘technical snag.’’ Defense counsel did
not appear to have a response as to whether a mere technical failure was
the cause of the indiscernible photographs, but responded that it was his
position that the police, through their training and experience, have a duty
to take and review on-scene photographs.