State v. Patel ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. HIRAL M. PATEL
(AC 41821)
Alvord, Bright and Bear, Js.
Syllabus
Convicted of the crimes of murder, home invasion, burglary in the first
degree as an accessory, robbery in the first degree as an accessory,
conspiracy to commit burglary in the first degree and tampering with
physical evidence in connection with the shooting death of the victim, the
defendant appealed, claiming, inter alia, that the trial court improperly
admitted into evidence certain statements by his coconspirator, C, that
inculpated the defendant, and precluded him from introducing into evi-
dence a statement by S, a cousin of the defendant, that was against S’s
penal interest. N, a cousin of the defendant who had been charged with
narcotics offenses, enlisted the defendant and C in N’s plan to rob the
victim, with whom N previously had engaged in drug transactions. N
drove the defendant and C to an area near the victim’s home before
driving away. After the defendant and C entered the victim’s home and
tied up his mother, C went upstairs, shot the victim and ransacked his
bedroom looking for money. The defendant and C then fled into the
woods, where the defendant lost his cell phone, and they thereafter met
up with N and drove away. N subsequently was convicted of murder in
a separate trial, and this court affirmed his conviction on appeal. In the
defendant’s trial, C, in response to a question by the court and without
having been sworn in, informed the court that he would exercise his fifth
amendment privilege against self-incrimination and refuse to answer
questions if he were called to testify. The court thereafter admitted into
evidence a tape recording of a conversation between C and E, a jailhouse
informant, that was made after E told correction officials that he would
be willing to record his conversations with C without C’s knowledge.
The court further admitted into evidence testimony from C’s girlfriend,
B, about statements C had made to her and precluded the defendant’s
sister, M, from testifying that S had told her that S was with C during
the incident. Held:
1. The trial court did not abuse its discretion when it admitted C’s statements
to E and B pursuant to the dual inculpatory statement exception to the
hearsay rule under the applicable provision (§ 8-6 [4]) of the Connecticut
Code of Evidence:
a. The defendant could not prevail on his unpreserved claim that the
trial court improperly found that C was unavailable to testify because
C was not under oath when questioned about his fifth amendment
privilege; that court’s failure to have C sworn in did not violate the
defendant’s sixth amendment right to confrontation or constitute plain
error, as the defendant made no claim that C’s privilege against self-
incrimination might not pertain to all of the questions that he would
have been asked, and the defendant did not contend that C would have
answered some questions or that the court’s inquiry of C as to his
personal invocation of the privilege was deficient in substance.
b. The trial court did not violate the defendant’s sixth amendment right
to confrontation when it admitted C’s statements to E, this court having
determined in N’s appeal that C’s statements to E bore none of the
characteristics of testimonial hearsay; C’s statements, which implicated
himself, N and the defendant, were made to his cellmate in an informal
setting, there was no indication that C anticipated that his statements
would be used in a criminal investigation or prosecution, and although
the evidence suggested that the recording of C’s statements was initiated
by the Department of Correction and that the police had spoken to E
prior to the recording, which was not clear from the testimony in N’s
trial, an objective witness would not reasonably believe that C’s state-
ments could be used at a trial, as there was no indication under either
scenario that C had knowledge that he was speaking with a jailhouse
informant, the determination of whether C’s statements were testimonial
focused on the reasonable expectations of C, and nothing about the
circumstances suggested that a person in C’s position would intend his
statements to be a substitute for trial testimony.
c. This court found unavailing the defendant’s unpreserved claim that
C’s statements to E were testimonial under the due process and confron-
tation clauses in article first, § 8, of the state constitution, as the defen-
dant did not identify any compelling economic or sociological concern
that supported a change in the interpretation of the confrontation clause
in article first, § 8, of the state constitution.
d. The trial court did not abuse its discretion when it admitted C’s
statements to E and B pursuant to § 8-6 (4), as that court’s findings
adequately supported its conclusion that C’s statements presented suffi-
cient indicia of reliability to justify their admission: C made the state-
ments to E, a fellow inmate who was facing serious charges and appeared
to be a fellow gang member, the details of the crime were related
only by C, and it was within the trial court’s discretion to evaluate the
consistencies and inconsistencies in C’s statements and to conclude,
on balance, in favor of a determination that the statements were reliable;
moreover, C had a close relationship with B, and his statements to her
were made on the day of the crime and were consistent with other
evidence, and even if C downplayed his involvement when he admitted
to B that he robbed the victim while failing to offer that he also murdered
the victim, C directly and explicitly incriminated himself by admitting
his participation in the robbery, and, thus, the statement remained
against his penal interest.
2. The trial court did not abuse its discretion when it excluded from evidence
M’s testimony concerning S’s statement to her on the ground that it was
not trustworthy and, thus, did not satisfy the requirements of § 8-6 (4):
although S’s statement that he should have been charged with murder
instead of the defendant was against his penal interest, the relationship
between M and S did not support a finding of trustworthiness, as M
acknowledged that, although they had been close while growing up, she
did not see S as much as she did before she entered medical school,
that she had seen S only twice in the past year and that it had been
years since she had more steady contact with him, and there was no
evidence that S had ever repeated his statement to M or made inculpatory
statements to others; moreover, contrary to the defendant’s assertion
that S’s statement was supported by corroborating circumstances, state-
ments of the victim’s mother, in which she described the intruders, were
inconsistent, the lack of proof that S was at a location distant from
the crime was not necessarily corroborative of his statement, other
statements S had made did not corroborate the key portion of his state-
ment to M but suggested merely that he was involved in the crime to
some degree, and circumstances surrounding the murder were far more
consistent with a finding that the defendant had entered the victim’s
home, rather than S.
3. The defendant could not prevail on his claim that the trial court abused
its discretion when it denied his motion to preclude the state from
offering the testimony of an agent with the Federal Bureau of Investiga-
tion about cell phone tower data analysis relative to the movement of
cell phones associated with the defendant, N and C on the day of the
murder: contrary to the defendant’s assertion that the court improperly
failed to conduct a hearing pursuant to State v. Porter (241 Conn. 57)
to determine the reliability of the agent’s methods and procedures, the
court held the functional equivalent of a Porter hearing, as there was
ample testimony bearing on the relevant Porter factors and sufficient
testimony to enable the court to determine whether the agent’s methods
were reliable, and although the court did not use the words rate of error
or peer review in its ruling, it appropriately relied on the experience of
other experts who had carried out similar work and noted that the agent’s
findings were reviewed by other experts in the same field; moreover,
the defendant’s assertion that the absence of sector analysis in the
data rendered the agent’s calculations and conclusions less precise and
accurate than they would have been with a sector-based analysis was
unavailing, as defense counsel did not identify at trial the defendant’s
alibi that he was out of state at the time of the crime as a factual
distinction requiring the court to reconsider its ruling on the issue in
N’s trial, nor did he explain to this court how sector analysis would be
more reliable, when the state, in light of the defendant’s alibi, sought
only to identify the general area in which his phone was present.
4. The evidence was sufficient to convict the defendant of murder under a
theory of liability predicated on Pinkerton v. United States (328 U.S.
640); it reasonably was foreseeable that the victim might fight back to
thwart the robbery of his proceeds from a drug sale and that C, who
was armed with a loaded gun, might, in furtherance of the conspiracy,
cause the victim’s death with the intent to do so, and the defendant’s
role in the incident was not too attenuated that it would have been
unjust to hold him responsible for the criminal conduct of C, as the
defendant had communicated with N about the crime days prior thereto,
planned to enter the victim’s home to rob him of money he had received
from a drug sale and restrained the victim’s mother after entering the
home.
Argued May 14—officially released November 12, 2019
Procedural History
Substitute information charging the defendant with
the crimes of felony murder, murder, home invasion,
burglary in the first degree as an accessory, robbery in
the first degree as an accessory, conspiracy to commit
robbery in the first degree, conspiracy to commit bur-
glary in the first degree and tampering with physi-
cal evidence, brought to the Superior Court in the judi-
cial district of Litchfield and tried to the jury before
Danaher, J.; thereafter, the court denied the defen-
dant’s motions to preclude certain evidence; verdict of
guilty; subsequently, the court denied the defendant’s
motion for a new trial and granted the defendant’s
motion to vacate the verdict as to the charge of felony
murder; thereafter, the court vacated the verdict as to
the charge of conspiracy to commit robbery in the first
degree; judgment of guilty of murder, home invasion,
burglary in the first degree as an accessory, robbery
in the first degree as an accessory, conspiracy to commit
burglary in the first degree and tampering with phys-
ical evidence, from which the defendant appealed.
Affirmed.
Richard Emanuel, for the appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were David S. Shepack, state’s
attorney, and Dawn Gallo, supervisory assistant state’s
attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Hiral M. Patel, appeals
from the judgment of conviction of murder in violation
of General Statutes § 53a-54a, home invasion in viola-
tion of General Statutes § 53a-100aa (a) (1), burglary
in the first degree as an accessory in violation of General
Statutes §§ 53a-101 (a) (1) and 53a-8 (a), robbery in the
first degree as an accessory in violation of General
Statutes §§ 53a-134 (a) (2) and 53a-8 (a), conspiracy to
commit burglary in the first degree in violation of Gen-
eral Statutes §§ 53a-101 (a) (1) and 53a-48, and tam-
pering with physical evidence in violation of General
Statutes § 53a-155 (a) (1).1 On appeal, the defendant
claims that (1) the court erred in admitting into evi-
dence dual inculpatory statements of his coconspirator,
Michael Calabrese; (2) the court erred in precluding
the defendant from introducing into evidence a state-
ment of Shyam Patel (Shyam), a cousin of the defen-
dant, that was against his penal interest; (3) the court
erred in admitting historical cell site location informa-
tion without conducting a Porter2 hearing; and (4) there
was insufficient evidence adduced at trial to sustain his
conviction of murder on a theory of Pinkerton3 liability.
We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On June 12, 2012, police arrested Niraj Patel
(Niraj), the defendant’s cousin, after a motor vehicle
stop and seized $12,575 from his person and his vehicle.
He was charged with criminal attempt to possess more
than four ounces of marijuana, interfering with an offi-
cer, tampering with evidence, possession of drug para-
phernalia, and motor vehicle charges. Following his
arrest, Niraj unsuccessfully attempted to borrow money
from family members to pay his attorney.
Niraj thereafter formed a plan to rob Luke Vitalis,
a marijuana dealer with whom Niraj had conducted
drug transactions. Vitalis lived with his mother, Rita
G. Vitalis, at 399 Cornwall Bridge Road in Sharon. On
August 3, 2012, Niraj sent a text message to the defen-
dant, stating: ‘‘I throw you some dough to do this if you
have to bring Diva,’’ who was the defendant’s family
dog. The defendant responded by stating: ‘‘You fig a ride
out.’’ Niraj responded: ‘‘Yes.’’ The defendant replied:
‘‘Word.’’ Niraj also offered Calabrese, a friend, money
to participate in the robbery.
Niraj knew that Vitalis had sold ten pounds of mari-
juana from his home on August 5, 2012, and set up a
transaction with Vitalis for the following day, with the
intention of robbing Vitalis of his proceeds of the pre-
vious sale. On August 6, 2012, Niraj drove Calabrese
and the defendant to the area of Vitalis’ home and
dropped them off down the road. Calabrese and the
defendant ran through the woods to Vitalis’ home. They
watched the home and saw Vitalis’ mother come home.
At approximately 6 p.m., Calabrese and the defendant,
wearing masks, bandanas, black hats, and gloves,
entered the home, encountered Vitalis’ mother, and
restrained her using zip ties. Calabrese, armed with
a Ruger handgun that he received from Niraj, went
upstairs and encountered Vitalis in his bedroom. He
struck Vitalis with the handgun and shot him three
times, killing him. Calabrese searched the bedroom but
could find only Vitalis’ wallet with $70 and approxi-
mately one-half ounce of marijuana, both of which he
took. Calabrese and the defendant ran from the prop-
erty into the woods, where the defendant lost his cell
phone. Calabrese and the defendant eventually met up
with Niraj, who was driving around looking for them.
Calabrese burned his clothing and sneakers on the side
of Wolfe Road in Warren.4
After freeing herself, Vitalis’ mother called 911. State
police troopers arrived at the scene at approximately
6:14 p.m. and found Vitalis deceased. Some of the draw-
ers in the furniture in Vitalis’ bedroom were pulled out.
The police searched the bedroom and found $32,150.
They also found marijuana plants growing in the home
and outside, 1.7 pounds of marijuana inside Vitalis’ bed-
room closet, and evidence of marijuana sales.
The defendant’s parents, who were traveling out of
state on the day of the crime, owned a package store
in Madison. While the defendant’s parents were away,
the defendant was supposed to assist the store’s
employee, James Smith, and provide him with a ride
home at night. On the afternoon of the day of the crime,
Smith called the defendant to ask him to pick up single
dollar bills for the store, but could not get in touch with
him. The defendant’s parents also could not reach him
and, eventually, they called a family member, Sachin
Patel (Sachin). Sachin left his job at 6:30 p.m. and
arrived at the store at about 7 p.m. After Sachin could
not reach the defendant on his cell phone, Sachin went
to the defendant’s house in Branford, let the dog out,
and continued to call the defendant from the house
phone. Sachin left the defendant’s house at about 8:30
p.m. and returned to the store to give Smith a ride home.
On September 11, 2013, the defendant was arrested.
Following a trial, the jury, on February 1, 2017, returned
a guilty verdict on all counts. The court, thereafter,
rendered judgment in accordance with the jury’s ver-
dict. See footnote 1 of this opinion. The court imposed
a total effective sentence of forty-five years of imprison-
ment, execution suspended after thirty-five years and
one day, twenty-five years of which were the mandatory
minimum, with five years of probation. This appeal
followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the court erred in
admitting into evidence ‘‘dual inculpatory statements’’
made by Calabrese. First, he contends as a threshold
matter that the state failed to prove Calabrese’s unavail-
ability because Calabrese was not under oath when he
invoked his fifth amendment privilege. Next, he claims
that Calabrese’s statements made to a jailhouse infor-
mant, Wayne Early, were testimonial, and that the
introduction into evidence of the recording of those
statements violated his federal and state confrontation
and due process rights. He further contends that the
recording and the testimony of Britney Colwell, Cala-
brese’s girlfriend at the time of the crime, regarding
statements Calabrese made to her, also were inadmissi-
ble pursuant to § 8-6 (4) of the Connecticut Code of
Evidence. We consider each of these claims in turn.
A
As a threshold matter, the defendant contends that
‘‘the court erred in finding that Calabrese was ‘unavail-
able’ because Calabrese was not under oath when
questioned about his fifth amendment privilege.’’ The
defendant acknowledges that his claim is unpreserved
but nevertheless seeks review pursuant to the bypass
doctrine set forth by our Supreme Court in State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015), or reversal pursuant to the plain error
doctrine.5 The state argues that the defendant’s argu-
ment is meritless, emphasizing the defendant’s ‘‘fail[-
ure] to cite a single case that holds that a trial court’s
finding of ‘unavailability’ must be based on the sworn
testimony of the purportedly unavailable witness.’’6 We
agree with the state that the court did not err in finding
Calabrese to be unavailable and, therefore, the defen-
dant has not shown the existence of a constitutional
violation or met the stringent standard for relief pursu-
ant to the plain error doctrine.7
The following additional procedural history is rele-
vant. On the morning of January 4, 2017, the court stated
that defense counsel wanted a ‘‘record to be made as
to whether . . . Calabrese would be willing to testify
if he were called by either party in this case or if,
alternatively, he would seek to invoke his rights under
the fifth amendment.’’ Defense counsel represented
his understanding ‘‘that the state does not intend to call
this gentleman based on their understanding that he’s
going to invoke his fifth amendment privilege. It is my
position that, if that’s to be done, it should be done
by the witness himself . . . on the record in court;
his lawyer can’t do it for him.’’ Calabrese was present
in court with his counsel, Attorney Gerald Giaimo.
Responding to the court’s inquiry, Calabrese stated that
he had the opportunity to talk with Attorney Giaimo
about the proceeding. In response to the court’s ques-
tion concerning whether he would answer questions if
he were called as a witness in the defendant’s case, he
stated that he ‘‘would plead the fifth.’’ In response to
the court’s follow-up questions, Calabrese confirmed
that he planned to invoke his rights under the fifth
amendment. The court inquired of the parties whether
there was ‘‘any question in the mind of either party
as to whether this is a valid invocation of the fifth
amendment privilege,’’ and defense counsel responded
that he had ‘‘no question about that’’ but requested
‘‘a follow-up question in terms of whether or not he
would intend to invoke his fifth amendment rights with
respect to every question he might be asked, not just
generally.’’ Defense counsel asked to inquire, and the
state objected. The court indicated that it did not think
it was necessary for defense counsel to inquire. Defense
counsel stated that he wanted to know whether Cala-
brese’s invocation of the fifth amendment ‘‘applie[d] to
every question that is asked of him relevant to this
case.’’ The court then asked Calabrese: ‘‘[i]f you were
to be asked questions about the facts of this case by
either party, what position would you take?’’ Calabrese
stated that he would ‘‘take the fifth.’’ The court then
asked: ‘‘Anything further?’’ Defense counsel responded:
‘‘Nothing from me.’’
The court found that Calabrese had made a valid
invocation of his fifth amendment privilege, stating that
it believed that if ‘‘Calabrese were to answer any ques-
tions relative to the facts of this case, they could have
a tendency to incriminate him.’’ The court again asked
whether there was ‘‘[a]nything further from either
party,’’ to which defense counsel responded, ‘‘[n]oth-
ing further.’’
‘‘Under Golding, 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 viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; internal
quotation marks omitted.) State v. Walker, 332 Conn.
678, 688, 212 A.3d 1244 (2019). We conclude that the
defendant’s claim is reviewable under the first and sec-
ond prongs of Golding. Accordingly, we turn to the
third prong of Golding—namely, whether the defendant
has established a violation of his sixth amendment con-
frontation rights.
In support of his claim that his sixth amendment right
to confrontation was violated, the defendant cites State
v. Cecarelli, 32 Conn. App. 811, 821, 631 A.2d 862 (1993).
In Cecarelli, the trial court accepted the representation
made by counsel for a witness that the witness would
invoke his fifth amendment privilege regardless of the
question he was asked. Id., 817. The witness did not
appear in court, and the court denied the defendant’s
request for a hearing to determine whether a valid privi-
lege properly was claimed as to questions concern-
ing the scope and extent of the witness’ actions as
a police informant. Id., 817–18. On appeal, this court
concluded that the trial court’s failure to hold a hear-
ing implicated the defendant’s constitutional right to
present a defense. Id., 821. Noting that ‘‘a question-by-
question invocation of the privilege against self-incrimi-
nation may not be required under all circumstances,’’
this court concluded that the sustaining of a blanket
privilege claim was not appropriate given the circum-
stances before the trial court, and that a hearing was
required. Id., 820.
Cecarelli is distinguishable from the present case in
that the defendant in Cecarelli challenged the witness’
assertion of his constitutional privilege on the ground
that it might not pertain to all of the questions the
defendant sought to ask regarding his entrapment
defense. Specifically, this court reasoned: ‘‘We cannot
speculate that the defendant’s entrapment defense may
be inextricably bound up with a scheme of criminality
on the part of [the witness] and that all questions asked
of [the witness] to corroborate that defense might
require answers tending to incriminate him. That deter-
mination may be reached only at a hearing for that
purpose, which would allow the trial court to explore
the basis, if any, of the witness’ refusal to testify, if he
does, in fact, invoke his privilege.’’ Id., 821. Here, the
defendant makes no claim that Calabrese’s constitu-
tional privilege might not have pertained to all of the
questions that would have been asked of him.
On point with this case is State v. Nieves, 89 Conn.
App. 410, 417, 873 A.2d 1066, cert. denied, 275 Conn.
906, 882 A.2d 679 (2005). In Nieves, this court rejected
the defendant’s claim ‘‘that the [trial] court violated his
sixth amendment right to present a defense simply by
failing to hold a hearing, requiring [the witness] to take
the stand and personally to invoke his fifth amendment
privilege.’’ Id. In Nieves, the court permitted the witness’
counsel to represent that his client would invoke his
fifth amendment privilege against self-incrimination as
to all questions. Id., 416–17. The defendant did not
request a hearing but moved to compel the witness to
testify. Id., 416. On appeal, this court noted that ‘‘there
is no claim that [the witness] might have answered some
relevant questions that would go to the defendant’s
defense’’; id., 418–19; and found the defendant’s argu-
ment premised solely on the fact that the witness per-
sonally did not invoke the privilege at a hearing unavail-
ing. Id., 420–21.
The defendant’s sole challenge to the court’s unavail-
ability finding is that Calabrese had not been adminis-
tered an oath prior to his testimony, during a hearing
before the court, that he would assert his fifth amend-
ment privilege not to testify. The defendant does not
contend that Calabrese would have answered some
questions or that the court’s inquiry of Calabrese as to
his personal invocation of the privilege was deficient
in substance. We cannot conclude that the court’s fail-
ure to have Calabrese sworn in violated the defendant’s
sixth amendment right to confrontation or constituted
plain error. Accordingly, the court did not err in finding
Calabrese to be unavailable.
B
Having concluded that the court did not err in finding
Calabrese to be unavailable, we now consider the defen-
dant’s claim that the court improperly admitted into
evidence Calabrese’s statements to Colwell and Early.
The following additional facts and procedural history
are relevant. In statements made to Colwell on the day
of Vitalis’ killing, Calabrese admitted his participation
in the robbery. Subsequently, in September, 2013, Cala-
brese detailed the events surrounding Vitalis’ kill-
ing, implicating himself, Niraj, and the defendant, in a
recorded statement to a confidential inmate informant.
Our analysis of this issue requires discussion of filings
in Niraj’s trial on charges stemming from the same inci-
dent.8 In Niraj’s trial, he filed a motion in limine seeking
to preclude the state from introducing into evidence
out-of-court statements made by Calabrese in lieu of
his live testimony, contending that the admission of his
statements would violate the fourth, fifth, sixth and
fourteenth amendments to the United States consti-
tution, article first, §§ 8, 9 and 10 of the Connecticut
constitution, and Practice Book § 42-15. See State v.
Patel, 186 Conn. App. 814, 831, 201 A.3d 459, cert.
denied, 331 Conn. 906, 203 A.3d 569 (2019). On Decem-
ber 31, 2015, the court issued a ruling denying Niraj’s
motion without prejudice.
Addressing Calabrese’s statements to Early, the court
noted the passage of time, thirteen months, as a factor
weighing against the trustworthiness of the statements.
The court further considered that Calabrese’s state-
ments ‘‘were made to a fellow inmate who appeared to
the defendant to be a fellow gang member, and one
who was facing serious charges.’’ The court found that
the statements were ‘‘replete with specific details of
the crime,’’ and stated that inconsistencies identified
by the defendant were not as significant as they appear
and ‘‘pale[d] in comparison to the myriad details of the
crime that could only be known to a participant in the
crime.’’ Considering the extent to which the statements
were against Calabrese’s penal interest, the court noted
that Calabrese explicitly stated that he killed Vitalis and
‘‘ma[de] clear that any other person involved is less
culpable than he is.’’ The court also considered that
Calabrese had initiated the discussion about the crime
on September 3, 2015, and that Calabrese had made
statements to Colwell that were consistent with his
statements to Early. Last, the court stated that the state
offered cell phone location evidence linking Calabrese
to the crime. The court concluded that Calabrese’s
statements to Early were admissible as statements
against penal interest pursuant to § 8-6 (4) of the Con-
necticut Code of Evidence. The court further concluded
that Calabrese’s statements to Early were not testi-
monial.
Regarding Calabrese’s statements to Colwell, the
court found that the statements constituted declara-
tions against penal interest pursuant to § 8-6 (4), in that
the ‘‘statements were made to a confidante; they were
made just before, on the day of, and the day after, the
homicide. Their trustworthiness lies in not only the
foregoing facts, but in their consistency with other phys-
ical evidence in the case, including the time of the
statements relative to the event; the specific admissions
of theft that were consistent with other evidence rela-
tive to the theft and the statements regarding clothing
that were consistent with the declarant’s efforts to
destroy clothing that might carry evidence of the
crime.’’
In the trial underlying this appeal, on August 3, 2016,
the defendant filed a similar motion in limine seeking
to preclude the state from offering into evidence Cala-
brese’s out-of-court statements. In his memorandum of
law in support of his motion, the defendant recognized
that the issue had been considered and ruled on by the
court in connection with Niraj’s trial. On November 8,
2016, the court, at the request of defense counsel and
without objection from the state, took judicial notice
of the totality of the filings and the transcripts in Niraj’s
trial. Later that day, the court noted that, in Niraj’s trial,
it had ruled on a motion in limine regarding Calabrese’s
statements and asked whether ‘‘there are any changes
in the law since that ruling that require a different result
and, alternatively, whether there are any factual devel-
opments that you wish to bring to my attention that
might bring about a different result.’’ Defense counsel
responded, ‘‘[n]o, as to both, Your Honor.’’ The court
indicated that ‘‘it would appear that the law of the case
would control,’’9 and the state agreed. The court asked
defense counsel whether he had anything further, and
defense counsel replied: ‘‘No, I just want to make—I
think we agree that in the event that this has to—this
case has to go beyond as proceeding subsequent to the
verdict, that Your Honor is relying—and [the] defendant
will have available the record of the Niraj Patel file—
trial . . . with respect to the arguments and the sub-
missions.’’ The state had no objection to that request.
The court then stated: ‘‘Well, the law of the case is not
absolute, but under the circumstances expressed by the
defense in the motion and the responses to my questions
today, I find that the law of the case controls that the
ruling of December 31, 2015, will control this motion
as well, and the motion is denied for the reasons set
forth in that opinion.’’
On January 6, 2017, the state called Early as a witness.
Early, who remained incarcerated at the time of the
defendant’s trial, testified that while incarcerated at the
New Haven Correctional Center, he was called to the
intelligence office, informed that Calabrese was going
to be moved into Early’s cell, and asked whether he
would be willing to wear a recording device to record
Calabrese.10 Early, who previously had made confiden-
tial recordings of other inmates, indicated he would be
willing to do so, and Calabrese was moved into his cell
that evening. Later that evening, the two discussed the
crimes for which they were incarcerated. Early stopped
the conversation, however, because he knew he was
going to wear a recording device and did not want to
repeat the same conversation the next day. The next
day, Early again was called to the intelligence office
and asked whether he ‘‘ ‘could do it,’ ’’ and Early
responded that he could. The intelligence officer then
placed a telephone call to the state police, in which
Early was asked what he knew about the case. Early
responded that he did not know anything about it, and
the state police asked Early to get as many details as
possible. The intelligence officer then placed the
recording device in Early’s shirt pocket.
Early went back to his cellblock recreation area, a
lockdown was called, and he went back to his cell with
Calabrese. The two engaged in a lengthy conversation,
in which Calabrese detailed the events surrounding
Vitalis’ killing, implicating himself, Niraj, and the defen-
dant. Over the defendant’s objection, the recording was
played for the jury during trial.11 The defendant renewed
his objection to the admission of the recording in his
motion for a new trial, which was denied.
On January 18, 2017, the state called Colwell as a
witness, who testified that in August, 2012, she lived
with her boyfriend at the time, Calabrese, at their condo-
minium in Branford. Colwell stated that one day in
the first week of August, 2012, Calabrese was on the
telephone with Niraj. He told Colwell that Niraj ‘‘wanted
him to go up near his parents’ house . . . to rob a kid
that owed him money’’ and that Niraj told Calabrese
that he ‘‘would give him a good amount of money if he
did this.’’ Colwell stated that Calabrese was hesitant at
first but later decided ‘‘he was gonna do it.’’ Within a
couple days of the telephone call with Niraj, Calabrese
left their condominium, saying that ‘‘he was going to
pick up [the defendant] to go up near his parents’ house
to go rob the kid.’’ Colwell begged him not to go. As
the evening went on and Colwell did not hear from
Calabrese, she began calling him ‘‘a hundred times’’ and
calling everyone he knew. When Colwell spoke with
Calabrese later that evening, she asked him whether
he did what he had to do, and Calabrese responded,
‘‘yeah, but we didn’t get any money. We just got a little
bit of weed.’’ When Calabrese returned to their condo-
minium early the next morning, he was wearing differ-
ent clothes and was not wearing shoes. He told Colwell
he had been playing basketball at Niraj’s house and that
Niraj had given him a change of clothes.
1
Federal Constitutional Claim
We begin by addressing the defendant’s federal con-
stitutional claim that his confrontation rights were vio-
lated by the introduction into evidence of the recording
of Calabrese’s statements to Early. He argues that Cala-
brese’s statements were testimonial. We disagree with
the defendant’s claim, which is controlled by our recent
decision in State v. Patel, supra, 186 Conn. App. 814.
‘‘The sixth amendment to the United States constitu-
tion, applicable to the states through the fourteenth
amendment, provides in relevant part: In all criminal
prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him . . . . In
Crawford v. Washington, [541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004)], the [United States] Supreme
Court substantially revised its approach to confronta-
tion clause claims. Under Crawford, testimonial hear-
say is admissible against a criminal defendant at trial
only if the defendant had a prior opportunity for cross-
examination and the witness is unavailable to testify
at trial. . . . In adopting this categorical approach, the
court overturned existing precedent that had applied
an open-ended balancing [test] . . . conditioning the
admissibility of out-of-court statements on a court’s
determination of whether the proffered statements bore
adequate indicia of reliability. . . . Although Craw-
ford’s revision of the court’s confrontation clause juris-
prudence is significant, its rules govern the admissibility
only of certain classes of statements, namely, testimo-
nial hearsay. . . . Accordingly, the threshold inquiries
in a confrontation clause analysis are whether the state-
ment was hearsay, and if so, whether the statement
was testimonial in nature . . . . These are questions
of law over which our review is plenary.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) State v. Walker, supra, 332 Conn. 689–90.
‘‘As a general matter, a testimonial statement is typi-
cally [a] solemn declaration or affirmation made for
the purpose of establishing or proving some fact. . . .
Although the United States Supreme Court did not pro-
vide a comprehensive definition of what constitutes a
testimonial statement in Crawford, the court did
describe three core classes of testimonial statements:
[1] ex parte in-court testimony or its functional equiva-
lent—that is, material such as affidavits, custodial exam-
inations, prior testimony that the defendant was unable
to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecu-
torially . . . [2] extrajudicial statements . . . con-
tained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions
[and] . . . [3] statements that were made under cir-
cumstances which would lead an objective witness rea-
sonably to believe that the statement would be available
for use at a later trial . . . . The present case concerns
only this third category form of testimonial statements.
‘‘[I]n Davis v. Washington, [547 U.S. 813, 822, 126 S.
Ct. 2266, 165 L. Ed. 2d 224 (2006)], the United States
Supreme Court elaborated on the third category and
applied a primary purpose test to distinguish testimo-
nial from nontestimonial statements given to police
officials, holding: Statements are nontestimonial when
made in the course of police interrogation under cir-
cumstances objectively indicating that the primary pur-
pose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there
is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prose-
cution.
‘‘In State v. Slater, [285 Conn. 162, 172 n.8, 939 A.2d
1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L.
Ed. 2d 822 (2008)], we reconciled Crawford and Davis,
noting: We view the primary purpose gloss articulated
in Davis as entirely consistent with Crawford’s focus
on the reasonable expectation of the declarant. . . .
[I]n focusing on the primary purpose of the communica-
tion, Davis provides a practical way to resolve what
Crawford had identified as the crucial issue in deter-
mining whether out-of-court statements are testimo-
nial, namely, whether the circumstances would lead an
objective witness reasonably to believe that the state-
ments would later be used in a prosecution.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Walker, supra, 332 Conn. 700–702.
Although arguing that the United States Supreme
Court has yet to make an explicit post-Crawford ruling
on this issue, the defendant recognizes that the court,
in dicta, has expressed the view that ‘‘statements made
unwittingly to a [g]overnment informant’’ or ‘‘state-
ments from one prisoner to another’’ are ‘‘clearly non-
testimonial.’’ Davis v. Washington, supra, 547 U.S. 825
(citing Bourjaily v. United States, 483 U.S. 171, 181–84,
107 S. Ct. 2775, 97 L. Ed. 2d 144 [1987], and Dutton v.
Evans, 400 U.S. 74, 87–89, 91 S. Ct. 210, 27 L. Ed. 2d
213 [1970] [plurality]). The defendant further concedes
that ‘‘to date, federal and state courts have refused to
accord ‘testimonial’ status to statements made to fellow
inmates or informants.’’
This court, in resolving Niraj’s appeal, noted that our
Supreme Court had not ‘‘addressed the specific issue
of whether a recording initiated by a prisoner, who is
acting as a confidential informant, of a fellow prisoner
unwittingly making dual inculpatory statements about
himself and a coconspirator or codefendant are testimo-
nial in nature.’’ State v. Patel, supra, 186 Conn. App. 837.
Considering this question in the context of Calabrese’s
statements, this court concluded that his statements
were nontestimonial in nature. Id. This court relied on
United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004),
cert. denied, 543 U.S. 1079, 125 S. Ct. 938, 160 L. Ed.
2d 821 (2005), in which the United States Court of
Appeals for the Second Circuit concluded ‘‘that a declar-
ant’s statements to a confidential informant, whose true
status is unknown to the declarant, do not constitute
testimony within the meaning of Crawford’’ and deci-
sions from other jurisdictions holding that statements to
confidential jailhouse informants were not testimonial.
See State v. Patel, supra, 840–41 (collecting cases).
We conclude that the resolution of the defendant’s
federal constitution claim is controlled by our decision
in State v. Patel, supra, 186 Conn. App. 814, in which
we concluded that Calabrese’s statements ‘‘[bore] none
of the characteristics of testimonial hearsay,’’ in that
‘‘Calabrese made these statements to his prison cell-
mate in an informal setting. He implicated himself, [the
defendant] and [Niraj] and there is no indication that
he anticipated that his statements would be used in a
criminal investigation or prosecution.’’ Id., 841. State v.
Patel, supra, 814, was released on January 8, 2019, after
the briefing was completed in this case.12 At oral argu-
ment before this court, the sole bases advanced by the
defendant’s appellate counsel for distinguishing Patel
were differences in the evidence presented as to the
circumstances preceding Early’s agreement to record
Calabrese.
The following additional background is relevant. In
Niraj’s trial, the court denied his motion in limine to
preclude introduction into evidence of the Calabrese
recording and noted that ‘‘the state claims that the con-
versations between Calabrese and the cellmate were
initiated on September 3, 2013, without the involvement
of law enforcement . . . .’’ Early testified, in that case,
that ‘‘the intelligence officer asked me if I was—if I was
willing to wear a device because I was ready—they
don’t want him because I’m trying to—I’m trying to dis
on my plate, so, I say—I say, absolutely, I will. Know
what I mean? He was in my cell. And I went to the
officer and he started speaking; the next day, I went to
the officer and said, he—he’s talking about it; know
what I mean? So, he put the device in my pocket—in
my pocket and sent me back to the cell.’’ On cross-
examination, Early further testified that the night Cala-
brese was moved into his cell, he and Calabrese talked
about their charges, and that the following day, Early
went to security and said that he knew he could get
Calabrese to talk.13 In the present case, as described
previously, Early testified that he first was called to the
intelligence office, informed that Calabrese was going
to be placed in his cell, and asked whether he would
be willing to wear a recording device to record Cala-
brese. The next day, when Early again was called to
the intelligence office, he was put on a telephone call
with the state police and was asked to get as many
details as possible.
Accordingly, the evidence in the present case sug-
gests that the recording was initiated by the Department
of Correction, which fact was not clear from the testi-
mony during Niraj’s trial, and that the state police were
involved and had spoken to Early, facts that were not
in evidence during Niraj’s trial. We are not convinced
that factual discrepancies in Early’s testimony as to
whether it was Early or law enforcement officials who
initiated the cooperation between the two disturbs
our conclusion that Calabrese’s statements were non-
testimonial. The analysis regarding whether Calabrese’s
statements were testimonial focuses on the reasonable
expectation of the declarant, Calabrese. Under either
factual scenario, there is no indication that Calabrese
had knowledge that he was speaking with a confiden-
tial jailhouse informant and, thus, an objective witness
making statements under those circumstances would
not reasonably believe that his statements later may be
used at a trial. Accordingly, as this court previously
concluded in State v. Patel, supra, 186 Conn. App. 841–
42, Calabrese’s statements to Early were nontestimo-
nial, and the admission into evidence of the recording
did not violate the defendant’s right to confrontation
under the federal constitution.
The defendant raises one additional argument not
raised in State v. Patel, supra, 186 Conn. App. 814. The
defendant claims that the court ran afoul of Michigan
v. Bryant, 562 U.S. 344, 369–70, 131 S. Ct. 1143, 179 L.
Ed. 2d 93 (2011), in failing to give consideration to
Early’s statements and actions during his conversation
with Calabrese. He relies on Bryant’s direction that,
‘‘[i]n determining whether a declarant’s statements are
testimonial, courts should look to all of the relevant
circumstances,’’ such as ‘‘the statements and actions of
all participants.’’ Id. The state responds that ‘‘[w]hile
the circumstances leading to a declarant making his
hearsay statements can be relevant to whether they
were testimonial, nothing about the circumstances here
suggests that a person in Calabrese’s ‘position would
intend his statements to be a substitute for trial testi-
mony,’ ’’ quoting Ohio v. Clark, U.S. , 135 S. Ct.
2173, 2182, 192 L. Ed. 2d 306 (2015). The state directs
this court’s attention to post-Bryant decisions from the
United States Court of Appeals for the Fourth and Fifth
Circuits that have continued to engage in a declarant
focused analysis. See United States v. Dargan, 738 F.3d
643, 650 (4th Cir. 2013) (‘‘[t]he primary determinant of a
statement’s testimonial quality is whether a reasonable
person in the declarant’s position would have expected
his statements to be used at trial—that is, whether the
declarant would have expected or intended to bear
witness against another in a later proceeding’’ [internal
quotation marks omitted]). In Dargan, the United States
Court of Appeals for the Fourth Circuit held that jail-
house disclosures to a cellmate were plainly nontesti-
monial, where the statements were made to a casual
acquaintance, his cellmate, in an informal setting, and
were not made with an eye toward trial, where the
declarant ‘‘had no plausible expectation of ‘bearing wit-
ness’ against anyone.’’ Id., 651; see also Brown v. Epps,
686 F.3d 281, 287–88 (5th Cir. 2012) (noting, in post-
Bryant decision, that ‘‘several district courts in this
Circuit have held that statements unknowingly made
to an undercover officer, confidential informant, or
cooperating witness are not testimonial in nature
because the statements are not made under circum-
stances which would lead an objective witness to rea-
sonably believe that the statements would be available
for later use at trial. Many other Circuits have come
to the same conclusion, and none disagree’’ [footnote
omitted; internal quotation marks omitted]). Consider-
ing these decisions in factually similar circumstances,
we are not persuaded that the court erred in engaging
in a declarant focused analysis.14
2
State Constitutional Claim
For the first time, on appeal, the defendant argues
that ‘‘[a]s an independent ground for relief, this court
should conclude that Calabrese’s statement was ‘testi-
monial’ for purposes of the due process and confronta-
tion clauses in article first, § 8, of the Connecticut con-
stitution.’’ The defendant concedes that this issue is
unpreserved, but nevertheless seeks review pursuant
to the bypass doctrine set forth by our Supreme Court
in State v. Golding, supra, 213 Conn. 239–40. We con-
clude that the record is adequate for review, and the
defendant’s claim, on its face, is of constitutional mag-
nitude. The claim fails to satisfy the third prong of
Golding, however, because the defendant has not estab-
lished that a constitutional violation exists.
‘‘In determining the contours of the protections pro-
vided by our state constitution, we employ a multifactor
approach that we first adopted in [State v. Geisler, 222
Conn. 672, 684–85, 610 A.2d 1225 (1992)]. The factors
that we consider are (1) the text of the relevant constitu-
tional provisions; (2) related Connecticut precedents;
(3) persuasive federal precedents; (4) persuasive prece-
dents of other state courts; (5) historical insights into
the intent of [the] constitutional [framers]; and (6) con-
temporary understandings of applicable economic and
sociological norms [otherwise described as public poli-
cies]. . . . We have noted, however, that these factors
may be inextricably interwoven, and not every [such]
factor is relevant in all cases.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Skok, 318 Conn.
699, 708, 122 A.3d 608 (2015).
At the outset, we conclude that five Geisler factors—
the first through the fifth—do not support the defen-
dant’s claim that the admission into evidence of Cala-
brese’s statements violated his rights under article first,
§ 8, and indeed, the defendant, in his principal brief to
this court, concedes as much. Moreover, our Supreme
Court has stated that ‘‘with respect to the right to con-
frontation within article first, § 8, of our state constitu-
tion, its language is nearly identical to the confrontation
clause in the sixth amendment to the United States
constitution. The provisions have a shared genesis in
the common law. . . . Moreover, we have acknowl-
edged that the principles of interpretation for applying
these clauses are identical.’’ (Citations omitted.) State
v. Lockhart, 298 Conn. 537, 555, 4 A.3d 1176 (2010).
As to the sixth Geisler factor—contemporary eco-
nomic and sociological considerations, including rele-
vant public policy—the defendant argues that ‘‘[t]he
Department of Correction should not serve as a Depart-
ment of Interrogation.’’ He argues: ‘‘This is a case in
which . . . correctional officers . . . acting at the
behest of [the] state police . . . purposely relocated a
targeted inmate by moving him to a particular cell so
that . . . a ‘wired’ informant could interrogate the tar-
geted inmate and record the interrogation for later use
in a criminal prosecution.’’ He maintains that the law
enforcement involved in planning the recording knew
or should have known that ‘‘under existing law’’ the
recording would likely be admissible at trial if the
declarant were unavailable as a witness ‘‘and would
thereby deprive any codefendant who had been impli-
cated by the declarant of his or her right to confront
their accuser.’’ Citing prosecutorial discretion in the
determination of the order in which cases are brought
to trial, the defendant argues that ‘‘prosecutors can
effectively manipulate the system to deprive defendants
of their confrontation rights.’’
The state responds, inter alia, that ‘‘short of preclud-
ing the use of any taped recording of inmate to inmate
communication, it is unclear how the defendant’s pro-
posed constitutional rule would work in practice. Yet,
recording of inmate confessions should be encouraged,
not forbidden, given the distrust with which our courts
historically have viewed jailhouse informant testi-
mony.’’ We conclude that the defendant has not identi-
fied any compelling economic or sociological concern
supporting a change in the interpretation of our con-
frontation clause and therefore conclude that the sixth
Geisler factor does not lend support to the defen-
dant’s claim.
In light of the foregoing, we conclude that the admis-
sion into evidence of Calabrese’s statements did not
violate the defendant’s rights under article first, § 8, of
the Connecticut constitution.
3
Evidentiary Claim
The defendant also claims that the court abused its
discretion when it concluded that Calabrese’s state-
ments to Early and Colwell were admissible as dual
inculpatory statements pursuant to § 8-6 (4) of the Con-
necticut Code of Evidence. We disagree.
‘‘A dual inculpatory statement is admissible as a state-
ment against penal interest under § 8-6 (4) of the Con-
necticut Code of Evidence, which carves out an
exception to the hearsay rule for an out-of-court state-
ment made by an unavailable declarant if the statement
at the time of its making . . . so far tended to subject
the declarant to . . . criminal liability . . . that a rea-
sonable person in the declarant’s position would not
have made the statement unless believing it to be true.’’
(Internal quotation marks omitted.) State v. Pierre, 277
Conn. 42, 67, 890 A.2d 474, cert. denied, 547 U.S. 1197,
126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006). ‘‘In short, the
admissibility of a hearsay statement pursuant to § 8-6
(4) . . . is subject to a binary inquiry: (1) whether [the]
statement . . . was against [the declarant’s] penal
interest and, if so, (2) whether the statement was suffi-
ciently trustworthy.’’ (Internal quotation marks omit-
ted.) State v. Bonds, 172 Conn. App. 108, 117, 158 A.3d
826, cert. denied, 326 Conn. 907, 163 A.3d 1206 (2017).
The defendant concedes that Calabrese’s statements to
Early and Colwell were against his penal interest and
challenges only the court’s finding that the statements
were trustworthy.
‘‘In determining the trustworthiness of a statement
against penal interest, the court shall consider (A) the
time the statement was made and the person to whom
the statement was made, (B) the existence of corrobo-
rating evidence in the case, and (C) the extent to which
the statement was against the declarant’s penal interest.
. . . Conn. Code Evid. § 8-6 (4). Additionally, when
evaluating a statement against penal interest, the trial
court must carefully weigh all of the relevant factors
in determining whether the statement bears sufficient
indicia of reliability to warrant its admission. . . .
[W]hen viewing this issue through an evidentiary lens,
we examine whether the trial court properly exercised
its discretion.’’ (Citations omitted; internal quotation
marks omitted.) State v. Pierre, supra, 277 Conn. 68;
see also State v. Bonds, supra, 172 Conn. App. 123
(‘‘[w]e review for an abuse of discretion the court’s
determination that the statement was trustworthy and,
thus, admissible at trial’’). ‘‘[N]o single factor for
determining trustworthiness . . . is necessarily con-
clusive. . . . Rather, the trial court is tasked with
weighing all of the relevant factors set forth in § 8-6
(4) . . . .’’ (Citation omitted; internal quotation marks
omitted.) State v. Bonds, supra, 125.
The defendant argues that Calabrese’s statements to
Early were not trustworthy. With respect to the first
factor, the defendant argues that statements to fellow
inmates traditionally have been considered untrustwor-
thy, Calabrese and Early did not know each other, and
most of Calabrese’s statements were prompted and
induced by Early’s questioning.15 We disagree that this
factor weighs against a finding of reliability. The court
found relevant that Calabrese made the statements ‘‘to
a fellow inmate who appeared to . . . be a fellow gang
member, and one who was facing serious charges.’’16
In State v. Smith, 289 Conn. 598, 633, 960 A.2d 993
(2008), our Supreme Court concluded that the trial
court’s findings adequately supported its conclusion
that a witness’ statements to his cellmate, in which he
implicated himself in an unsolved murder, presented
sufficient indicia of reliability to justify their admission,
noting ‘‘the camaraderie that arises’’ between those who
are incarcerated and facing criminal charges. Id. The
court in Smith also considered that the witness ‘‘did
not induce [the declarant] to share the details of the
crime.’’ Id. It noted the trial court’s finding that although
‘‘at times [the witness] seemed to lead some of the
discussion,’’ the declarant was ‘‘a willing and active
participant . . . who provided nearly all of the sub-
stance of the discussion.’’ (Internal quotation marks
omitted.) Id., 616–17. In the present case, although Early
continually asked Calabrese questions, Early testified
that he did not know anything about the crime before
talking to Calabrese. Thus, the details of the crime were
related only by Calabrese. Accordingly, the person to
whom the statements were made weighs in favor of a
finding of trustworthiness.
As to the second factor, the defendant recognizes
that Calabrese recited ‘‘specific details of the crime’’ but
contends that his statements also ‘‘contained numerous
facts that were contradicted by his other statements or
by physical evidence.’’ Specifically, he emphasizes that
Calabrese told Early that Vitalis had come at him with
a large knife, but there was no evidence of any knife.
Rather than setting forth and analyzing the remainder
of the alleged inconsistencies, the defendant merely
‘‘incorporates . . . the list of contradictory and incon-
sistent statements listed in the trial memoranda filed
by Niraj . . . and the defendant.’’ (Citation omitted.)
It was within the trial court’s discretion to evaluate the
consistencies and inconsistencies to conclude that, on
balance, the second factor weighed in favor of a deter-
mination that the statements are reliable. Indeed, the
trial court noted the inconsistencies identified by the
defendant and found that they ‘‘pale[d] in comparison
to the myriad details of the crime that could only be
known to a participant in the crime.’’ Accordingly, our
examination of the relevant factors17 leads us to con-
clude that the trial court’s findings adequately support
its conclusion that Calabrese’s statements to Early pre-
sented sufficient indicia of reliability to justify their
admission. See State v. Smith, supra, 289 Conn. 631.
The defendant also argues that Calabrese’s state-
ments to Colwell were not trustworthy because he ‘‘was
seeking to misinform his girlfriend about his involve-
ment in the incident; he downplayed his participation,
admitting to the robbery but denying involvement in
the death of . . . Vitalis. He even told Early that he
had lied to Colwell.’’ The state responds that Calabrese
actually had not denied killing Vitalis in his statement
hours after the murder, and that ‘‘Calabrese’s statement
about ‘‘rob[bing] the kid,’’ made before the incident,
was not inconsistent with the state’s theory, which
allowed for the possibility that the gunman’s intent to
kill may have been formed moments before the actual
murder.’’
With regard to the first factor, Calabrese made his
statements to Colwell on the day of the crime, both
when he was leaving their condominium to commit the
crime and later that night after having committed the
crime. ‘‘In general, declarations made soon after the
crime suggest more reliability than those made after
a lapse of time where a declarant has a more ample
opportunity for reflection and contrivance.’’ (Internal
quotation marks omitted.) State v. Camacho, 282 Conn.
328, 361, 924 A.2d 99 (statements made within one week
of murders trustworthy), cert. denied, 552 U.S. 956, 128
S. Ct. 388, 169 L. Ed. 2d. 273 (2007); see State v. Pierre,
supra, 277 Conn. 71 (statements made within ‘‘couple
of weeks’’ trustworthy). The statements also were made
to Calabrese’s girlfriend, a person with whom Calabrese
had a close relationship. See State v. Camacho, supra,
361–62 (statement made to neighbor, who was also
friend, indicative of statement’s reliability). As to the
second factor, the statements were consistent with
other evidence in the case, in that Calabrese told Col-
well they ‘‘didn’t get any money,’’ which was consistent
with the police, upon conducting a search, finding
$32,150 in Vitalis’ bedroom. As to the third factor, even
if Calabrese downplayed his involvement by admitting
that he robbed Vitalis while failing to offer that he also
had murdered Vitalis, the statement remained against
his penal interest to a significant extent, in that he
‘‘directly and explicitly incriminated himself by admit-
ting his own participation in’’ the robbery. State v.
Bonds, supra, 172 Conn. App. 123. Thus, the trial court’s
findings adequately support its conclusion that Cala-
brese’s statements to Colwell presented sufficient indi-
cia of reliability to justify their admission. See State v.
Smith, supra, 289 Conn. 631.
In light of the preceding factors, we conclude that
the court did not abuse its discretion when it admitted
Calabrese’s statements to Early and Colwell pursuant
to the dual inculpatory statement exception to the hear-
say rule.
II
The defendant’s second claim on appeal is that the
‘‘court erred in ruling that the defense could not elicit
testimony from Salony [Majmudar], the defendant’s sis-
ter, that Shyam had confessed to her that it was he,
not the defendant, who had accompanied Calabrese
into the Vitalis home on August 6.’’ He claims that the
exclusion of Majmudar’s testimony regarding Shyam’s
statement constituted evidentiary error under § 8-6 (4)
of the Connecticut Code of Evidence, and violated his
federal and state constitutional rights to present a
defense and to due process of law. We disagree.
The following additional facts and procedural history
are relevant to our resolution of this claim. On January
25, 2017, Majmudar, the defendant’s sister, testified that
Shyam visited her home unannounced one evening
during the last two weeks of September, 2013. When
defense counsel sought to elicit the substance of the
conversation, the state asked for a proffer outside the
presence of the jury. The jury was excused, and Majmu-
dar testified that Shyam asked to borrow $50,000 to
help make Niraj’s bond. Majmudar testified that she
told Shyam that she could not help him because she
needed to have money ready for the defendant’s bond
and attorney’s fees. Majmudar testified: ‘‘I told him that
[the defendant] didn’t do this, that [the defendant] was
innocent, he was in Boston with me. He didn’t look
surprised. I asked him if he knew who was with [Cala-
brese] during the robbery. He stayed silent, and he
avoided making eye contact with me. I asked him again
if he knew who was with [Calabrese] during the rob-
bery, and he still stayed silent and looked away. I
directly asked him if he was with [Calabrese] during
the robbery. That’s when he started to break down in
tears, and he admitted that he and [Calabrese] tried to
rob [Vitalis] that night.’’18 Majmudar testified that she
told only the defendant about Shyam’s confession.
The following morning, the court heard argument on
the issue of whether Shyam’s statements to Majmudar
were admissible as statements against penal interest
under § 8-6 (4) of the Connecticut Code of Evidence.
Analyzing the trustworthiness of the statements, the
court considered a number of factors that it determined
weighed against admissibility, including that the confes-
sion was made thirteen months after the crime; the
witness, Majmudar, told no one other than the defen-
dant for more than three and one-half years after the
statement was made; the statements were made to only
one person, Majmudar; the nature of the relationship
between Majmudar and Shyam, in that she had only
seen Shyam approximately twice in the preceding year
or so; and Majmudar was highly motivated to assist her
brother. The court concluded that there was insufficient
evidence corroborating the statement to render it trust-
worthy and, therefore, the statement did not satisfy the
requirements of § 8-6 (4).19
As set forth in part I B 3 of this opinion, we review
for an abuse of discretion the court’s determination
of the trustworthiness of a statement against penal
interest. See State v. Pierre, supra, 277 Conn. 68. ‘‘In
determining the trustworthiness of a statement against
penal interest, the court shall consider (A) the time
the statement was made and the person to whom the
statement was made, (B) the existence of corroborating
evidence in the case, and (C) the extent to which the
statement was against the declarant’s penal interest.
. . . Conn. Code Evid. § 8-6 (4).’’ (Citation omitted;
internal quotation marks omitted.) State v. Pierre,
supra, 68.
We begin with the third factor, pursuant to which
the defendant argues that ‘‘there is no question that
Shyam’s statement was against penal interest.’’ The
court described Shyam’s statement as being ‘‘to the
effect that he should be charged with murder instead
of the defendant.’’ We agree with the defendant that
the statement was against Shyam’s penal interest to a
significant extent, such that this factor weighs in favor
of a finding of trustworthiness.
As to the first factor, the defendant argues on appeal
that Shyam’s statement was trustworthy in that it was
made to ‘‘someone with whom he had a close personal
relationship, and with whose family he had resided for
two years while in high school.’’ We cannot conclude
that the court erred in determining that the relationship
between Majmudar and Shyam did not support a finding
of trustworthiness.20 Although Majmudar testified that
Shyam had shared confidences with her, that she and
Shyam were close growing up, and that the two grew
even closer when Shyam stayed with her family for his
junior and senior years of high school, she acknowl-
edged that she did not see him as much as she did
before medical school and residency. She also testified
that she had seen Shyam only twice in the past year or
so and that it had ‘‘been years’’ since she had more
steady contact with Shyam.21 Moreover, there was no
evidence presented that Shyam ever had repeated the
statement or had made inculpatory statements to per-
sons other than Majmudar. See State v. Rivera, 221
Conn. 58, 70, 602 A.2d 571 (1992) (considering that
there was no evidence declarant repeated statement to
anyone else and testified to the contrary at probable
cause hearing); State v. Mayette, 204 Conn. 571, 578, 529
A.2d 673 (1987) (delay in making statements combined
with lack of reiteration of statements weigh against
reliability); see also State v. Lopez, 254 Conn. 309, 321,
757 A.2d 542 (2000) (considering, under second factor,
that there was no evidence declarant had repeated state-
ment or made inculpatory statements to any other
person).
As to the second factor, the defendant argues that
Shyam’s statement was supported by a number of cor-
roborating circumstances. First, he points to Vitalis’
mother’s indication, at one point, that Shyam was one
of the intruders. Although Vitalis’ mother did not testify
at trial, a joint stipulation signed by the prosecutor,
Dawn Gallo, and the defendant, by defense counsel,
William F. Dow III, was entered into evidence and read
aloud to the jury. The joint stipulation provided, in
relevant part, that Vitalis’ mother gave multiple state-
ments with different descriptions of the intruders, first
stating that both men were white and later stating that
they could have been Hispanic. In January, 2016, Vitalis’
mother told an inspector with the state’s attorney’s
office that she believed one of the two men was an
Indian male and that she believed this person to be
Shyam Patel. At the time of the incident, she knew Niraj
and Shyam, but did not know the defendant. In January,
2017, Vitalis’ mother told an inspector that she did not
know who either of the two intruders were for certain.
Because the statements of Vitalis’ mother were incon-
sistent with each other, they are not sufficiently corrob-
orative of Shyam’s statement.
Second, the defendant argues that ‘‘[t]here was no
irrefutable proof that Shyam was at some distant loca-
tion at the time of the crime, so he clearly had the
opportunity to participate in it.’’ In support of this argu-
ment, he cites State v. Gold, 180 Conn. 619, 636, 431
A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66
L. Ed. 2d 148 (1980), in which our Supreme Court noted
that the declarant had the opportunity to commit the
murders, citing, as corroborating circumstances, that
two witnesses had testified during the defendant’s offer
of proof that the declarant was in the state on the day
of the murders and was absent from his home at the
approximate time of the crimes. No such testimony
existed in the present case, and the lack of proof that
Shyam was at a distant location is not necessarily cor-
roborative of Shyam’s statement.
The defendant further argues that Shyam’s statement
is corroborated by his access to the Pathfinder after
the crime, evidence suggesting that it was he who had
the car cleaned,22 and searches he conducted online for
information about criminal penalties.23 Although this
evidence may ‘‘reinforce the idea of his active criminal
involvement,’’ as the defendant argues, these circum-
stances do not necessarily corroborate the key portion
of Shyam’s statement that he entered Vitalis’ home with
Calabrese but, rather, they suggest merely that he was
involved in the crime to some degree.
The defendant further suggests that ‘‘the court’s
admissibility ruling was based in part on an improper
consideration, i.e., the court’s own opinion as to the
credibility of Shyam’s statement against penal interest.’’
(Emphasis omitted.) He cites the court’s remarks that
the evidence pointed ‘‘more to Michael Calabrese and
this defendant than it does to Shyam Patel having been
the person to enter the Vitalis home. The circumstances
surrounding the event are far more consistent with this
defendant entering the Vitalis’ home than Shyam Patel
entering that home.’’ (Emphasis omitted.) We are not
persuaded that the challenged remarks demonstrate
that the court exceeded its gatekeeping function in
determining whether Shyam’s statements were suffi-
ciently trustworthy to be admitted into evidence. The
court referenced defense counsel’s point ‘‘that it is
important to not confuse the issue of credibility with
admissibility,’’ and stated that it was ‘‘fully cognizant
of that’’ and ‘‘kept that in mind . . . in making [its]
ruling . . . .’’
On the basis of the foregoing, we conclude that the
court did not abuse its discretion by excluding from
evidence Majmudar’s testimony as to Shyam’s state-
ment because it was not trustworthy and, therefore,
did not satisfy the requirements of § 8-6 (4).24
III
The defendant’s third claim on appeal is that ‘‘[t]he
court erred when it denied the defendant’s motion to
preclude ‘cellular telephone tower evidence’—more for-
mally known as ‘historical cell[ular] site location infor-
mation (CSLI)’—and refused to require the state to
demonstrate the reliability of such evidence at a hearing
held pursuant to State v. Porter, 241 Conn. 57, 698 A.2d
739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384,
140 L. Ed. 2d 645 (1998).’’ (Footnote omitted.) We
disagree.
The following additional facts and procedural history
are relevant to our resolution of this claim. Again, our
analysis of this issue requires discussion of filings and
testimony in Niraj’s trial. See footnote 9 of this opinion.
In Niraj’s trial, Niraj filed a motion to preclude the state
from introducing ‘‘cellular telephone tower evidence
or, in the alternative, that the state be required to dem-
onstrate the evidence’s reliability at a hearing pursuant
to Porter.’’ The court held a hearing on the motion on
December 23, 2015. Noting the many ways in which
cell tower technology has been used, the court stated
that ‘‘it would seem to me that it would make sense to
hear from the witness whom the state would offer at
trial. I’m not turning this into deposition, I’m not turning
this into a Porter hearing, but . . . th[e] first question
is whether this is an innovative scientific technique.
That’s the first question. If what is being offered is
something that’s been used uncritically for ten years
that’s one thing, if no one has ever used this type of
evidence anywhere then we might need a Porter hear-
ing.’’ Defense counsel then stated that the innovative
scientific technique he sought to challenge was the the-
ory that the cell phone ‘‘must hit the closest tower.’’
The state then presented the testimony of Special
Agent James J. Wines of the Federal Bureau of Investi-
gation (FBI) and a member of its Cellular Analysis Sur-
vey Team (CAST), whose responsibilities as a CAST
member included ‘‘analyz[ing] records obtained by law
enforcement agencies related to specific crimes and
then using those records [to] conduct an analysis using
cell tower information as to the approximate location
of a cell phone at a particular time.’’ Wines testified that
CAST members have testified in hundreds of federal
and state trials. As to Wines’ personal experience, he
stated that he has used historical call detail records
with cell site information since 2003, spent ‘‘thousands
of hours reviewing call detail records,’’ and has used
that information ‘‘to locate subjects in [his] investiga-
tions, to locate and apprehend fugitives, to assist in
the recovery of evidence, to locate victims of child
prostitution, a variety of different . . . scenarios.’’
Wines explained that his reports and presentations are
subject to internal peer review, usually by a more senior
member of CAST, who reviews his analysis for accuracy
and completeness. Wines testified that in his experi-
ence, ‘‘the individual or the phone has always been in
the area where the call detail records indicated the
phone would be.’’
Wines testified that cell phone providers use call
detail records for a number of purposes, including ‘‘for
billing records, so that they can accurately bill their
customers for the amount of network resources that
their customers use, and they also use it to assist in
optimizing the network to provide the best possible
coverage for their . . . customers.’’ Wines stated that
cell phone carriers ‘‘are constantly trying to ensure the
reliability and the quality of their networks so that they
don’t lose customers.’’ Wines testified that he had
received training from AT&T, Verizon, Sprint, and T-
Mobile, the four major cell phone providers that provide
cell phone service in Connecticut, and that he maintains
regular contact with their ‘‘legal compliance people as
well as engineers’’ regarding ‘‘how their call detail rec-
ords are populated and maintained as well as how their
networks are optimized.’’
In the present case, Wines analyzed the movement
of cell phones associated with Niraj, Calabrese, and the
defendant on August 6, 2012. He plotted the cell towers
each phone utilized, which showed ‘‘the movement of
two phones [associated with Niraj] coming up from
the area of Queens, New York, to the area of Sharon,
Connecticut, and . . . two other phones [associated
with Calabrese and the defendant] moving up from the
area of Branford, Connecticut, down on the shoreline,
again, up to the area of Sharon, Connecticut. And while
these phones are moving they’re often in contact with
one another as they proceed north.’’
With respect to the towers accessed by the cell phone
associated with the defendant on August 6, 2012, Wines
explained that prior to 6:04 p.m., the phone accessed
tower 1025, which is located on the top of Mohawk
Mountain, for a series of phone calls. Wines testified
that there were no outgoing calls or messages from the
cell phone associated with the defendant after 6:04 p.m.
on August 6, 2012, which, he observed, indicated ‘‘either
that the phone was off or that it was . . . in an area
where it could not receive any cell signal,’’ or that
‘‘something could have happened to the phone that
rendered it unable’’ to receive a cellular signal.
Wines explained that he had used an AT&T engi-
neering phone25 and had ‘‘detected energy from tower
1025’’ in the front yard and inside Vitalis’ home on a
staircase. This meant that were the engineering phone
to make a call, ‘‘it would have utilized resources from
tower 1025.’’ Wines performed this test once. Wines
stated that tower 1025 was not the closest tower to the
Vitalis residence and explained why a cell phone might
use a tower other than the closest tower. Wines stated
that a cell phone is ‘‘constantly evaluating its network,
and it’s scanning the area and determining the strength
and clarity of the signals it’s receiving from the cell
towers in the area. And in doing that analysis it is look-
ing for the strongest, cleanest signal, and that’s the
tower that it’s going to select when it requests resources
to make or receive a call or make or receive a text
message. The factors that can affect the strength and
clarity can be terrain features, can be obstructions, can
be the way that the antennas are oriented—the down-
tilt of particular antennas. In driving in this area in
preparing my analysis, what I did note that it is an
extremely hilly area, and there are significant terrain
features, peaks and valleys that could affect the strength
of signal coming from towers, which could cause a
phone to select a tower that would not necessarily be
the closest tower, but would be the strongest, clearest
signal.’’ Wines testified that tower 1025 is between seven
and eight miles from the crime scene and that the tower
likely had a maximum range of eight miles, which would
cover approximately 200 square miles.26
Wines further testified that ‘‘when a cell phone selects
a cell tower, it has to be within the RF [radio frequency]
footprint of that particular tower in order to request
resources from that tower to complete either a call or
an SMS [short message service] message’’ and, there-
fore, his analysis also can show where a cell phone
was not located. Wines acknowledged that cell towers
provide 360 degree coverage and that they are often
broken down into sectors. Wines stated that because
he ‘‘was simply trying to show movement over . . . a
large area,’’ he did not ‘‘break it down into sectors’’ and
that he conducted his analysis ‘‘simply using the
towers.’’
Wines testified that the tower a cell phone utilizes is
recorded automatically and electronically in the call
details records, and that he was not aware of any situa-
tion in which a cell tower site noted in a call detail
record was incorrect. Although he had never seen a
study from outside law enforcement in which the meth-
odology was tested, he stated that ‘‘it’s tested in a practi-
cal, real world sense every day when myself and other
members of my unit find fugitives, recover evidence,
recover kidnap victims that it’s—it works.’’
Following Wines’ testimony, the court heard argu-
ment on Niraj’s motion in limine. The court then ruled
that the evidence offered did not involve an innovative
scientific technique and, therefore, a Porter hearing was
not appropriate. It further stated that ‘‘[e]ven if a hearing
were warranted and the findings I just made and all the
findings I make are based on the evidence presented
by this witness, the objection to the technique does not
succeed. The evidence offered is scientifically valid; it’s
rooted in the methods of procedures of science. It is
far more than a subjective belief or unsupported specu-
lation; it is therefore sufficiently reliable to be admitted
into evidence.’’ The court based its findings ‘‘not only
on the testimony of the witness in general, but in par-
ticular the witness’ long experience in this type of analy-
sis, the nature of the evidence that’s being offered, the
experience of other experts who carry out similar work,
the fact that this witness has had significant training
and experience in this area, and that his findings are
reviewed by other experts in the same field.’’ The court
noted Niraj’s objection to Wines’ methodology but
stated that it ‘‘did not hear an argument from the defen-
dant as to an alternate methodology that should have
been used in this case, nor is there any evidence, offered
by the defendant, by any other expert in this field that
some other methodology should have been used.’’ Last,
the court found the evidence relevant ‘‘in that it purports
to show the movement of parties allegedly connected
with the homicide . . . on or about the date and time
of the homicide . . . .’’
In the present case, the defendant filed a motion in
limine and memorandum of law in support thereof that
virtually was identical to those filed by Niraj. The court
heard argument on the motion on November 8, 2016.
Defense counsel agreed with the court that his motion
paralleled that filed in Niraj’s case. Noting that it had
ruled on the motion in Niraj’s case from the bench on
December 23, 2015, and that its ruling was ‘‘based upon
the testimony provided . . . at a hearing, specifically,
testimony by agent Wines,’’ the court inquired of
defense counsel whether there were ‘‘any changes in
the law or factual developments that would cause me
to reconsider that ruling.’’ Defense counsel responded:
‘‘None that I’m aware of, Your Honor.’’ The court then
stated: ‘‘[F]or the reasons stated with regard to the
Calabrese statement motion, I will deny this motion as
well, pursuant to the law of the case.27 And that’s based
upon, in part, the representations made by the defense
this morning that there are no material factual changes
or changes in the law that would warrant a different
result. And so the motion in limine to preclude admis-
sion of cellular telephone tower evidence is denied.’’
(Footnote added.)
At trial, Wines testified as to the movement of cell
phones associated with Niraj, and one cell phone each
associated with Shyam, the defendant, and Calabrese
over the course of August 6, 2012, and the state intro-
duced into evidence three PowerPoint presentations
depicting the movement of those phones to and from
the Sharon area, movement in the Sharon area on the
afternoon and evening of August 6, 2012, and the activity
of cell phones associated with the defendant’s family
members. Wines testified that from 3:57 p.m. through
6:04 p.m. on August 6, 2012, all activity on the cell phone
associated with the defendant utilized tower 1025,
which Wines’ engineering phone had detected as the
‘‘strongest, highest quality signal’’ at the crime scene
and which an AT&T drive test conducted two and one-
half weeks prior to the crime ‘‘along route 4 approxi-
mately two and a quarter to two and a half miles south-
east of the crime scene also detect[ed] signal from tower
1025 as being the strongest, highest quality signal in
that area.’’
In his February 6, 2017 motion for a new trial, the
defendant claimed that the court, without requiring a
sufficient showing of reliability, improperly admitted
evidence ‘‘purporting to establish instances of mobile
telephone communications between the defendant and
other accused parties as well as their whereabouts and
movements . . . .’’ The state objected, arguing that the
court properly admitted the evidence ‘‘after having held
a Porter hearing in State v. [Patel, supra, 186 Conn.
App. 814], then again hearing argument in [this case],
which incorporated by agreement of the parties the
evidence and argument presented in State v. [Patel,
supra, 814].’’ The court denied the motion on April
28, 2017.
In a supplemental written ruling issued on June 20,
2017, the court addressed our Supreme Court’s deci-
sion, released following the jury’s verdict in the present
case, in State v. Edwards, 325 Conn. 97, 133, 156 A.3d
506 (2017), which held that the trial court improperly
admitted testimony and documentary evidence of his-
toric cell site analysis, including cell tower coverage
maps, through a detective without qualifying him as an
expert and conducting a Porter hearing in order to
ensure that his testimony was based on reliable scien-
tific methodology. The court in Edwards relied on the
approach by the United States District Court for the
District of Connecticut in United States v. Mack, Docket
No. 3:13-cr-00054 (MPS), 2014 WL 6474329 (D. Conn.
November 19, 2014), in which the court conducted a
hearing pursuant to Daubert v. Merrell Dow Pharma-
ceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993), and concluded that the FBI agent’s
methodology was sufficiently reliable to meet the
requirements of Daubert and, therefore, the agent could
testify regarding his conclusions.
The court in the present case stated that ‘‘the state
presented an expert witness with qualifications equal
to those of the witness who testified in Mack, as
opposed to the limited qualifications of the state’s wit-
ness in Edwards.’’ The court explained that Wines dem-
onstrated in detail the methodology that he used in
completing his analysis. The court stated: ‘‘More signifi-
cantly, even though this court found that a Porter hear-
ing was not required relative to the cell tower data
analysis, it effectively carried out a Porter hearing out
of the presence of the jury in the proceeding against
Niraj and concluded that, even if a Porter hearing was
required, the evidence proffered by the state was scien-
tifically valid in that it was rooted in the methods and
procedures of science. Thus, this court made the find-
ings that were lacking in Edwards and that the District
Court did make in Mack.’’28
On appeal, the defendant argues that ‘‘[t]his court
should not countenance the trial court’s attempt, in its
June 20, 2017 ruling, to retroactively ‘reclassify’ the
offer of proof at Niraj’s trial as ‘effectively’ constituting
a Porter hearing.’’ The state responds that the court
‘‘conducted the functional equivalent of a Porter hearing
and, most importantly, made the findings required by
Porter.’’ We agree with the state that the court held the
functional equivalent of a Porter hearing.
‘‘In Porter, we followed the United States Supreme
Court’s decision in Daubert v. Merrell Dow Pharmaceu-
ticals, Inc., [supra, 509 U.S. 579], and held that testi-
mony based on scientific evidence should be subjected
to a flexible test to determine the reliability of methods
used to reach a particular conclusion. . . . A Porter
analysis involves a two part inquiry that assesses the
reliability and relevance of the witness’ methods. . . .
First, the party offering the expert testimony must show
that the expert’s methods for reaching his conclusion
are reliable. A nonexhaustive list of factors for the court
to consider include: general acceptance in the relevant
scientific community; whether the methodology under-
lying the scientific evidence has been tested and sub-
jected to peer review; the known or potential rate of
error; the prestige and background of the expert witness
supporting the evidence; the extent to which the tech-
nique at issue relies [on] subjective judgments made by
the expert rather than on objectively verifiable criteria;
whether the expert can present and explain the data
and methodology underlying the testimony in a manner
that assists the jury in drawing conclusions therefrom;
and whether the technique or methodology was devel-
oped solely for purposes of litigation. . . . Second, the
proposed scientific testimony must be demonstrably
relevant to the facts of the particular case in which it
is offered, and not simply be valid in the abstract. . . .
Put another way, the proponent of scientific evidence
must establish that the specific scientific testimony at
issue is, in fact, derived from and based [on] . . . [sci-
entifically reliable] methodology.’’ (Internal quotation
marks omitted.) State v. Edwards, supra, 325 Conn. 124.
‘‘[I]t is well established that [t]he trial court has broad
discretion in ruling on the admissibility [and relevancy]
of evidence. . . . [Accordingly] [t]he trial court’s ruling
on evidentiary matters will be overturned only upon a
showing of a clear abuse of the court’s discretion. . . .
Because a trial court’s ruling under Porter involves the
admissibility of evidence, we review that ruling on
appeal for an abuse of discretion.’’ (Citation omitted;
internal quotation marks omitted.) State v. Montanez,
185 Conn. App. 589, 619, 197 A.3d 959 (2018), cert.
denied, 332 Conn. 907, 209 A.3d 643 (2019).
We first consider whether the hearing conducted in
Niraj’s case was, in substance, a Porter hearing. Our
review of the transcript reveals that there was ample
testimony before the court bearing on the relevant Por-
ter factors and that there was sufficient testimony to
enable the court to determine whether Wines’ methods
were reliable. Specifically, Wines testified, inter alia,
that, although he had not seen a study from outside law
enforcement that tested his methodology, ‘‘it’s tested
in a practical, real world sense’’ when CAST members
find fugitives and recover kidnap victims and evidence,
his work is subject to an internal peer review process
where another CAST member reviews his analysis for
accuracy and completeness, his personal experience
with the accuracy of the technology was such that ‘‘the
individual or the phone has always been in the area
where the call detail records indicated the phone would
be,’’ he has had personal experience using historical
call detail records with cell site information since 2003
and has received training from the major cell phone
providers; and the technology was developed for a num-
ber of purposes, including to assist cell phone carriers
in optimizing their networks to provide the best possible
coverage for their customers.
The defendant contends, however, that the court ‘‘did
not make adequate Porter findings . . . .’’29 Specifi-
cally, he argues that the court’s ruling failed to address
‘‘the known or potential rate of error’’ and the ‘‘peer
review’’ factor. (Internal quotation marks omitted.)
Although the court did not use the words ‘‘rate of error’’
or ‘‘peer review,’’ it expressly relied on ‘‘the experience
of other experts who carry out similar work’’ and noted
that Wines’ ‘‘findings are reviewed by other experts in
the same field,’’ both appropriate considerations under
the flexible Porter test. See United States v. Mack,
supra, 2014 WL 6474329, *4 (citing testimony that esti-
mation procedures ‘‘are commonly relied upon by law
enforcement and the cell phone industry when more
precise methods of estimation are unavailable’’ and not-
ing that CAST member had testified that, ‘‘in his experi-
ence, it is an unusual case in which the actual coverage
area of a cell tower differs greatly from the estimation
derived from this method’’). Last, we note that each of
these factors is ‘‘only one of several nonexclusive fac-
tors . . . . No single Porter factor is dispositive.’’
(Internal quotation marks omitted.) State v. Montanez,
supra, 185 Conn. App. 620–21.
Moreover, the court in Mack found that the CAST
member’s inability to provide a precise numerical error
rate in the context of estimating the coverage area of
cell towers did not negate his qualitative testimony, nor
did the lack of scientific peer review render his methods
unreliable. United States v. Mack, supra, 2014 WL
6474329, *4; see also State v. Montanez, supra, 185
Conn. App. 621 (noting, in context of determining cover-
age areas of particular towers through drive test analy-
sis, that certain federal courts have declined to find
drive test data unreliable on basis of lack of scientific
testing and publications).
Last, the defendant contends that ‘‘the most funda-
mental omission is the court’s failure to consider the
absence of ‘sector’ analysis and how that absence
affected Wines’ ability to provide objective rather than
subjective data.’’ Specifically, he emphasizes that ‘‘[t]he
absence of sector analysis means that Wines’ calcula-
tions and conclusions were less precise and less accu-
rate than they would have been with a sector-based
analysis.’’ As the defendant recognizes, defense counsel
in Niraj’s trial conceded that Niraj, whose alibi was that
he was at his parents’ house in Warren, was within the
radius of coverage of tower 1025. The defendant in the
present case states that he ‘‘did not make any such
concession.’’ Indeed, the defendant’s alibi in the present
case was that he was at Majmudar’s house in Boston,
plainly outside of tower 1025’s uncontested coverage
area of 200 square miles.30 When the court in the present
case asked whether there were any factual develop-
ments that would cause it to reconsider the ruling ren-
dered in Niraj’s case, defense counsel did not identify
his out-of-state alibi as a factual distinction requiring
reconsideration. Nor does he explain in his appellate
brief how the greater precision of a sector analysis
would be more reliable, where the state, in light of the
defendant’s alibi that he was in Boston, sought only to
identify the general area in which his phone was
present.
Accordingly, the defendant has not demonstrated
that the court abused its discretion in denying his
motion to preclude CSLI evidence.
IV
The defendant’s final claim on appeal is that there
was insufficient evidence to convict him of murder
predicated on Pinkerton liability. The defendant
acknowledges that he ‘‘actively participated in the
planned burglary and robbery’’ but argues that ‘‘there
is no evidence that he or any [coconspirator] ever con-
templated the death of [Vitalis].’’ He further argues that
his ‘‘participation in the conspiracy and Calabrese’s
murder of [Vitalis] was so attenuated or remote . . .
that it would be unjust to hold the defendant responsible
for the criminal conduct of his coconspirator.’’ (Internal
quotation marks omitted.) We disagree.
We first set forth our standard of review. ‘‘The stan-
dard of review employed in a sufficiency of the evidence
claim is well settled. [W]e apply a two part test. First,
we construe the evidence in the light most favorable
to sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the [finder of fact] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt.
. . . This court cannot substitute its own judgment for
that of the jury if there is sufficient evidence to support
the jury’s verdict. . . . In conducting our review, we
are mindful that the finding of facts, the gauging of
witness credibility and the choosing among competing
inferences are functions within the exclusive province
of the jury, and, therefore, we must afford those deter-
minations great deference.’’ (Internal quotation marks
omitted.) State v. Leggett, 94 Conn. App. 392, 398, 892
A.2d 1000, cert. denied, 278 Conn. 911, 899 A.2d 39
(2006).
We next set forth the scope of Pinkerton liability.
‘‘Under the Pinkerton doctrine . . . a conspirator may
be held liable for criminal offenses committed by a
coconspirator that are within the scope of the conspir-
acy, are in furtherance of it, and are reasonably foresee-
able as a necessary or natural consequence of the
conspiracy. . . . The rationale for the principle is that,
when the conspirator [has] played a necessary part in
setting in motion a discrete course of criminal conduct,
he should be held responsible, within appropriate limits,
for the crimes committed as a natural and probable
result of that course of conduct. . . . [W]here . . . the
defendant was a full partner in the illicit venture and the
coconspirator conduct for which the state has sought
to hold him responsible was integral to the achievement
of the conspiracy’s objectives, the defendant cannot
reasonably complain that it is unfair to hold him vicari-
ously liable, under the Pinkerton doctrine, for such
criminal conduct. . . .
‘‘In analyzing vicarious liability under the Pinkerton
doctrine, we have stated that the Pinkerton doctrine
constitutionally may be, and, as a matter of state policy,
should be, applied in cases in which the defendant did
not have the level of intent required by the substantive
offense with which he was charged. The rationale for
the doctrine is to deter collective criminal agreement
and to protect the public from its inherent dangers by
holding conspirators responsible for the natural and
probable—not just the intended—results of their con-
spiracy. . . . This court previously has recognized that
[c]ombination in crime makes more likely the commis-
sion of crimes unrelated to the original purpose for
which the group was formed. In sum, the danger which a
conspiracy generates is not confined to the substantive
offense which is the immediate aim of the enterprise.
. . . In other words, one natural and probable result
of a criminal conspiracy is the commission of originally
unintended crimes. . . . Indeed, we specifically have
contrasted Pinkerton liability, which is predicated on
an agreement to participate in the conspiracy, and
requires the substantive offense to be a reasonably fore-
seeable product of that conspiracy . . . with accesso-
rial liability, which requires the defendant to have the
specific mental state required for the commission of
the substantive crime. . . .
‘‘Thus, the focus in determining whether a defendant
is liable under the Pinkerton doctrine is whether the
coconspirator’s commission of the subsequent crime
was reasonably foreseeable, and not whether the defen-
dant could or did intend for that particular crime to
be committed. In other words, the only mental states
that are relevant with respect to Pinkerton liability are
that of the defendant in relation to the conspiracy itself,
and that of the coconspirator in relation to the offense
charged. If the state can prove that the coconspirator’s
conduct and mental state satisfied each of the elements
of the subsequent crime at the time that the crime was
committed, then the defendant may be held liable for
the commission of that crime under the Pinkerton doc-
trine if it was reasonably foreseeable that the coconspir-
ator would commit that crime within the scope of and
in furtherance of the conspiracy.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
State v. Coward, 292 Conn. 296, 307–309, 972 A.2d
691 (2009).
Accordingly, ‘‘[u]nder the Pinkerton doctrine . . . a
defendant may not be convicted of murder unless one
of his criminal associates, acting foreseeably and in
furtherance of the conspiracy, caused the victim’s death
with the intent to do so. . . . [U]nder Pinkerton, a
coconspirator’s intent to kill may be imputed to a defen-
dant who does not share that intent, provided, of course,
that the nexus between the defendant’s role and his
coconspirator’s conduct was not so attenuated or
remote . . . that it would be unjust to hold the defen-
dant responsible . . . .’’ (Citation omitted; emphasis
in original; internal quotation marks omitted.) State v.
Coltherst, 263 Conn. 478, 494, 820 A.2d 1024 (2003).
Our Supreme Court has acknowledged, however, that
‘‘there may be occasions when it would be unreasonable
to hold a defendant criminally liable for offenses com-
mitted by his coconspirators even though the state has
demonstrated technical compliance with the Pinkerton
rule. . . . For example, a factual scenario may be envi-
sioned in which the nexus between the defendant’s role
in the conspiracy and the illegal conduct of a coconspir-
ator is so attenuated or remote, notwithstanding the
fact that the latter’s actions were a natural consequence
of the unlawful agreement, that it would be unjust to
hold the defendant responsible for the criminal conduct
of his coconspirator. In such a case, a Pinkerton charge
would not be appropriate.’’ (Internal quotation marks
omitted.) Id., 493.
The defendant cursorily maintains that Vitalis’ mur-
der was not reasonably foreseeable. We disagree. Giving
deference, as we must, to the reasonable inferences of
the jury, it reasonably was foreseeable that Vitalis, who
was home with his mother at the time of the crime,
might resist or fight back to thwart the robbery of his
proceeds from a large drug sale, and that the defen-
dant’s coconspirator, Calabrese, who was armed with
a loaded gun, might, in furtherance of the conspiracy,
cause Vitalis’ death with the intent to do so. See State
v. Coward, supra, 292 Conn. 312 (quoting State v. Rossi,
132 Conn. 39, 44, 42 A.2d 354 [1945], for proposition
that ‘‘crimes against the person like robbery . . . are,
in common experience, likely to involve danger to life
in the event of resistance by the victim or the attempt
of the perpetrator to make good his escape and conceal
his identity’’); State v. Taylor, 177 Conn. App. 18, 33,
171 A.3d 1061 (2017) (Sufficient evidence to support the
defendant’s conviction of murder under the Pinkerton
doctrine existed where the ‘‘court reasonably found, on
the basis of the evidence presented and the reasonable
inferences drawn therefrom, that the defendant and [his
alleged coconspirator] robbed the victim, who fought
back, and that they did so in furtherance of an agree-
ment to commit a robbery while at least one of them
was armed with a deadly weapon. Because the murder
of the victim was committed in furtherance of that
conspiracy, and was a reasonably foreseeable conse-
quence thereof, such proof of conspiracy also sup-
ported the defendant’s conviction for murder under the
Pinkerton doctrine.’’), cert. denied, 327 Conn. 998, 176
A.3d 555 (2018); see also State v. Gonzalez, 311 Conn.
408, 427, 87 A.3d 1101 (2014) (noting that had the state
sought to prove the defendant’s liability for manslaugh-
ter in the first degree with a firearm under Pinkerton,
evidence that the defendant possessed a loaded gun
when he was together with an individual selling drugs
‘‘could well have been probative circumstantial evi-
dence of the existence of a conspiracy between them
to sell drugs at [the housing complex], of which the
death of an interfering party could be a foreseeable,
natural, and probable consequence’’).
Moreover, we disagree that the defendant’s role was
too attenuated, such that it would be unfair to apply
Pinkerton. Viewing the evidence in the light most favor-
able to sustaining the verdict, the defendant communi-
cated with Niraj via text message regarding the crime
days prior to it. The defendant, presumably aware, as
was Calabrese, that Vitalis was a drug dealer who
recently received a large amount of cash from a drug
sale, planned to enter Vitalis’ home to rob him of that
money. Moreover, before the defendant and Calabrese
entered the home, they saw Vitalis’ mother arrive home.
Once inside, the defendant restrained her using zip ties.
Cf. State v. Coward, supra, 292 Conn. 311 (considering,
among other evidence, that the ‘‘plan called for [the
defendant’s coconspirator] and the defendant to invade
an occupied home and to ‘use force’ to commit the
robbery’’). Under these circumstances, we conclude
that the extent of the defendant’s participation was not
so attenuated and remote that it would be unjust to
hold him responsible for the criminal conduct of his
coconspirator, Calabrese.31
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also was convicted of felony murder and conspiracy to
commit robbery in the first degree. The trial court vacated his conviction
of those charges to avoid double jeopardy concerns. See footnote 31 of
this opinion.
2
See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523
U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).
3
See Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed.
1489 (1946).
4
The burnt clothing and sneakers later were discovered, and subsequent
forensic testing revealed that footwear imprints from the crime scene proba-
bly were made by the right sneaker.
5
‘‘The plain error doctrine is based on Practice Book § 60-5, which pro-
vides in relevant part: The court shall not be bound to consider a claim
unless it was distinctly raised at the trial or arose subsequent to the trial.
The court may in the interests of justice notice plain error not brought to
the attention of the trial court. . . . The plain error doctrine is reserved
for truly extraordinary situations [in which] the existence of the error is so
obvious that it affects the fairness and integrity of and public confidence
in the judicial proceedings. . . . A party cannot prevail under [the] plain
error [doctrine] unless [he] has demonstrated that the failure to grant relief
will result in manifest injustice.’’ (Internal quotation marks omitted.) Cator
v. Commissioner of Correction, 181 Conn. App. 167, 177 n.3, 185 A.3d 601,
cert. denied, 329 Conn. 902, 184 A.3d 1214 (2018).
6
The state also responds that the defendant’s challenge is ‘‘unreviewable
because he never asserted in the trial court that Calabrese needed to be
sworn in before responding to the trial court’s questions.’’ We disagree that
the claim is unreviewable. See State v. Nieves, 89 Conn. App. 410, 414–15,
873 A.2d 1066 (reviewing, pursuant to Golding, unpreserved claim that court
failed to hold hearing and require witness personally to invoke privilege
against self-incrimination), cert. denied, 275 Conn. 906, 882 A.2d 679 (2005).
7
The defendant makes only passing reference in his appellate briefs to
his right to confrontation as the constitutional right violated.
8
Niraj also was arrested on September 11, 2013. State v. Patel, 186 Conn.
App. 814, 820, 201 A.3d 459, cert. denied, 331 Conn. 906, 203 A.3d 569 (2019).
The trial court, Danaher, J., presided over Niraj’s jury trial, which was held
in January and February, 2016. Niraj was convicted on multiple charges and
appealed from the judgment of conviction to this court, which affirmed his
conviction. Id., 857.
Judge Danaher also presided over the defendant’s trial. At the request of
defense counsel, Judge Danaher took judicial notice of the totality of the
filings and the transcripts of Niraj’s case. During the defendant’s trial, the
court also referred to certain rulings issued in Niraj’s trial.
Accordingly, this opinion references certain decisions, motions, and testi-
mony from Niraj’s trial where necessary to our consideration of the issues
presented in this appeal.
9
The trial court referred to two rulings in Niraj’s trial as the ‘‘law of the
case’’ when ruling on similar motions in the defendant’s trial. See part III
of this opinion. Aside from the defendant’s accurate notation in a footnote
in his principal brief that the law of the case doctrine is not applicable,
neither party on appeal raises a claim of error in the court’s presumably
inartful reference to its rulings in Niraj’s trial as the law of the case in the
defendant’s trial.
10
Early did not know whether Calabrese was moved into his cell for the
sole purpose of being recorded. Early testified: ‘‘I don’t know if he was
comin’ in just for that reason. I know he got moved out [of] the dorm
because of some, some foolishness he did in the dorm. So, when he came
to my cellblock, the officer told me, I want you to try to see if you can get
him . . . because I done it before.’’
11
Defense counsel indicated his objection to the recording’s introduction
into evidence. The court noted that it had written an opinion on this issue
in the trial of Niraj and indicated that it had not written the same opinion
for this trial, but that it already had ruled on the issue. Defense counsel
agreed that the motion was the same in both trials and indicated his under-
standing that the ‘‘ruling . . . stands,’’ but advised that he planned to for-
mally object in front of the jury to make a record.
12
In his brief, the defendant relies on several factors, which he contends
support a conclusion that Calabrese’s statements were testimonial. First,
he argues that there was no ongoing emergency and that the primary purpose
of the interrogation, conducted thirteen months after the crime, was ‘‘to
establish or prove past events potentially relevant to later criminal prosecu-
tion.’’ Davis v. Washington, supra, 547 U.S. 822. Second, as to the ‘‘objective
analysis of the circumstances of [the] encounter’’; Michigan v. Bryant, 562
U.S. 344, 360, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011); he contends that
Calabrese intentionally was moved to a specific cell in order to enable Early
to gather evidence for the state to use against Calabrese in a criminal
prosecution. Third, emphasizing that Early ‘‘was not a neutral listening
device,’’ the defendant states that Early interrogated Calabrese by asking
‘‘at least 200 questions.’’ Fourth, the defendant places weight on the fact
that Early had been asked by correctional staff and the state police to serve
as a confidential informant, which, he contends, rendered Early an agent
of law enforcement. Last, the defendant argues that ‘‘any reasonable person
objectively would have known that such statements could be used against
him. Indeed, Early confirmed that all prisoners are aware of the possibility of
someone ‘snitching them out’ and becom[ing] a state’s witness against them.’’
13
Accordingly, this court, in State v. Patel, supra, 186 Conn. App. 831,
recited the circumstances leading to Early’s recording as follows: ‘‘After
Calabrese was arrested, he and his cellmate were talking about the charges
that were pending against them. Thereafter, the cellmate approached a
security officer and offered to record Calabrese. The cellmate was set up
with a recording device, and he recorded his conversation with Calabrese,
who was unaware that he was being recorded.’’
14
We also do not find persuasive the defendant’s citation to a single
unreported case from Texas in which the court found testimonial a declar-
ant’s statements made to his aunt while she was wearing a wire. Cazares
v. State, Docket No. 15-00266-CR, 2017 WL 3498483, *11 (Tex. App. August
16, 2017), review refused, Texas Court of Criminal Appeals, Docket No. PD-
0204-18 (May 23, 2018), U.S. , 139 S. Ct. 422, 202 L. Ed. 2d 324 (2018).
15
The court found that the passage of thirteen months between the crime
and Calabrese’s statements weighs against the trustworthiness of the
statements.
16
The defendant argues that ‘‘Early would not have appeared to . . . be
a fellow gang member,’’ and points to Early’s encouraging Calabrese to
become a member of the ‘‘blood’’ gang. (Internal quotation marks omitted.)
After Early told Calabrese he could ‘‘make shit happen’’ for him, Calabrese
responded: ‘‘[I]t’s basically the same shit anyway. Fuckin all my boys are
fuckin bloods every time there’s fucking something goin on I get fucking
sucked into fuckin going.’’ Even if Early would not have appeared to be ‘‘a
fellow gang member,’’ the evidence suggested that he was a member of a
gang, with which all of Calabrese’s friends were affiliated. Thus, the court
did not err in considering this relationship in support of a finding of reliability.
17
As to the third factor, the extent to which the statement was against
the declarant’s penal interest, the defendant does not challenge the court’s
finding that Calabrese explicitly stated that he killed Vitalis and ‘‘ma[de]
clear that any other person involved is less culpable than he is.’’
18
Majmudar testified to the remainder of the conversation as follows: ‘‘So,
I asked him why they robbed [Vitalis]. He said that they needed money to
pay for Niraj’s attorney fees. He said that [Calabrese] was supposed to rob
Luke alone, that Niraj dropped [Calabrese] off near Luke’s house first. When
Luke’s mom got home, [Calabrese] got cold feet and refused to rob [Vitalis]
until Shyam showed up last minute.
‘‘I asked him what happened during the robbery. He said the robbery
went bad; [Vitalis] got shot. Shyam said he panicked, ran out of the house
back to the car. [Calabrese] was still in the house looking for that money.
Shyam didn’t want to wait around and get caught, so he drove home as fast
as he could to change his clothes.
‘‘I asked him what happened to [Calabrese]. He said that he and Niraj
drove around with the Pathfinder and eventually picked up [Calabrese] from
the woods, and they burned everything they wore in different locations.
‘‘I asked him if [Calabrese] used [the defendant’s] phone during the rob-
bery. He said yes. He said that he and [Calabrese] didn’t use their own
phones, cars or gun during the robbery. He said that Niraj was stupid to
use his own phone to contact [Vitalis] that day. I asked him where they left
their phones. He said [Calabrese’s] phone was with Niraj. Shyam said he
left his phone at home.
‘‘I asked him why my parents’ two black [sport utility vehicles] were
seized. He said they used the black Saab [sport utility vehicle] from New
York during the robbery.
‘‘I asked him what happened to the gun. He said that he and Niraj gave
the gun to [their cousin] to get rid of.
‘‘I asked him if [the defendant] ever came to Warren earlier that day. He
said he never came that day, he came two weeks later.
‘‘I asked him why he was charged with so little, with hindering prosecution
and tampering with evidence, why his bond was only fifty thousand when
everyone else’s was at least one million or more. He said that he threatened
[Calabrese], threatened to go after his sister if [Calabrese] ever gave him up.
‘‘I was infuriated. I told Shyam that he needed to come forward and
confess. He said that he couldn’t do that to his parents, that Niraj may go
down for this and his parents couldn’t lose him as well.
‘‘I told him that he needed to leave, and I never saw Shyam again.’’
19
The court also indicated that it did not ‘‘believe there’s been a sufficient
showing that Shyam Patel is unavailable’’ but stated that ‘‘the decision I am
rendering does not at all turn on that fact.’’ Because we conclude that the
court did not abuse its discretion in determining that Shyam’s statement
was not trustworthy, we need not address the court’s finding that the defen-
dant had not established that Shyam was unavailable.
20
Likewise, the court did not err in determining that the thirteen month
time period between the crime and Shyam’s statement weighed against a
finding of trustworthiness, notwithstanding that his statement was made
within a few weeks of his arrest. See State v. Lopez, 254 Conn. 309, 317,
757 A.2d 542 (2000).
21
The court also noted Majmudar’s relationship to the defendant in its
consideration of the person to whom Shyam’s statement was made. ‘‘[A]
trial court may not consider the credibility of the testifying witness in
determining the trustworthiness of a declaration against penal interest.’’
State v. Rivera, 268 Conn. 351, 372, 844 A.2d 191 (2004). Our Supreme Court
has considered the witness’ relationship to the defendant, however, as a
factor ‘‘ ‘coloring’ ’’ the trustworthiness of the proffered statements. State
v. Payne, 219 Conn. 93, 115, 591 A.2d 1246 (1991) (agreeing with trial court’s
conclusion that long-standing relationship between defendant and witness
would not lead to conclusion of trustworthiness).
22
There was evidence at trial that Shyam sent the following text messages
to Niraj at 8:13 p.m. on August 6, 2012: ‘‘U want me to come to the station
in pathfinder?’’; ‘‘?’’; ‘‘Lemme know . . . I got keys.’’ A white Pathfinder,
registered at the home Shyam shared with his parents and, occasionally,
Niraj, was seized by police. The vehicle smelled clean and seemingly had
new floor mats. A receipt dated August 31, 2012, at 10:40 a.m. from Personal
Touch Car Wash in New Milford was found in a bedroom at Shyam’s home,
and Shyam’s cell phone utilized two cell towers in the vicinity of the car
wash around the date and time printed on the receipt.
23
There was evidence at trial that there were Google searches conducted
on Shyam’s computer for the terms ‘‘conspiracy to commit murder in Con-
necticut’’ and ‘‘conspiracy to kill,’’ along with searches for penalties for
those crimes.
24
The defendant also claims that the court’s exclusion of Shyam’s state-
ment violated his constitutional rights to present a defense and to due
process of law. We disagree. ‘‘The defendant’s rights to present a defense
and to due process do not give him the prerogative to present any testimony
or evidence he chooses. In the exercise of his constitutional rights, the
accused, as required of the [s]tate, must comply with the established rules
of procedure and evidence designed to assure both fairness and reliability
in the ascertainment of guilt and innocence.’’ (Internal quotation marks
omitted.) State v. Rosado, 218 Conn. 239, 249–50, 588 A.2d 1066 (1991).
25
Wines testified that an engineering phone is ‘‘a phone that’s set up to
show you the—the signals that it’s receiving from the tower. It shows you
what’s happening on your cell phone in the background that you don’t see.
It presents it on the screen, so that you can kind of spot check and confirm
what a particular phone from a particular carrier—what it sees as the
strongest, cleanest signal at a particular time.’’
26
In situations in which a cell phone connects to a tower that is not the
closest tower to the cell phone, Wines stated, he would try to conduct a
drive test ‘‘if the network was still in the same condition that it was in at
the time the crime occurred.’’ In the present case, Wines stated that there
had been changes to the AT&T network, so a drive test was not possible.
A drive test had been conducted three weeks prior to the homicide, however,
and a signal from tower 1025 was present along Route 4, approximately
two miles southeast of the crime scene.
27
See footnote 9 of this opinion.
28
The defendant does not dispute that he agreed at trial that the court
could rely on the evidence presented at the hearing on the motion in limine
in Niraj’s trial.
29
In a one sentence footnote in his appellate brief, the defendant argues
that ‘‘[t]he state did not meet its burden of showing that Wines was qualified
as an expert . . . and the court never expressly decided that ‘preliminary
question.’ ’’ (Citation omitted.) This argument is inadequately briefed and,
accordingly, we decline to review it. See State v. Prosper, 160 Conn. App.
61, 74–75, 125 A.3d 219 (2015).
30
Majmudar testified that she and the defendant celebrate Raksha Band-
han, an annual religious festival celebrating the bonds between brothers
and sisters, and that the 2012 festival was scheduled for August 2. Majmudar
testified that because she was out of town on August 2, she and the defendant
arranged to meet at her home on August 6. According to Majmudar, after
notifying the defendant that she would arrive home late, Majmudar arrived
at about 7 p.m. The defendant was parked with his car door open and was
looking for something, which she thought was his cell phone. She stated
that they then went inside her home and performed the ceremony, which
took no longer than five minutes, and that the defendant left within two
hours to return home to Branford to let the dog out. Majmudar testified
that she learned about the homicide two days after the defendant was
arrested on September 11, 2013. According to Majmudar’s testimony, she
realized that the defendant came to see her on the day of the homicide and
then she told her mother that he could not have been involved.
31
We further note that the jury also found the defendant guilty of felony
murder. See footnote 1 of this opinion. Upon motion of the defendant, the
court vacated the conviction of felony murder to avoid double jeopardy
concerns. Consequently, even if there was insufficient evidence to sustain
the defendant’s conviction of murder predicated on Pinkerton liability, the
felony murder conviction could be reinstated on remand. See State v.
Miranda, 317 Conn. 741, 753–54, 120 A.3d 490 (2015) (‘‘[W]e see no substan-
tive obstacle to resurrecting a cumulative conviction that was once vacated
on double jeopardy grounds—provided that the reasons for overturning the
controlling conviction would not also undermine the vacated conviction.
. . . [A] jury necessarily found that all the elements of the cumulative offense
were proven beyond a reasonable doubt. Put differently, although the cumu-
lative conviction goes away with vacatur, the jury’s verdict does not.’’).