State v. Hutton , 188 Conn. App. 481 ( 2019 )

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STATE OF CONNECTICUT v. NIRONE HUTTON
(AC 41011)
Alvord, Prescott and Norcott, Js.
Syllabus
Convicted of the crime of murder in connection with the shooting death of
the victim, the defendant appealed. He claimed that his constitutional
right to confrontation was violated when the trial court admitted into
evidence, as a prior inconsistent statement pursuant to State v. Whelan
(200 Conn. 743), a videotaped statement to the police that was made
by W, in which W identified the defendant as the shooter. The defendant
and W had gone to a housing complex where they became embroiled
in a confrontation with the victim, who had been selling fake crack
cocaine there, which adversely affected the defendant’s drug business.
The defendant claimed that he shot the victim not over a dispute about
gang turf and drugs, but in defense of his friend, S, who was being
kicked and pistol-whipped by the victim during the confrontation. After
W took the witness stand and was sworn in to testify before the jury,
he refused to provide verbal responses to any of the questions asked
by the prosecutor and by defense counsel, and refused to answer ques-
tions after the trial court ordered him to do so. In its ruling admitting
the videotaped statement, the court described W’s nonverbal manner-
isms that it observed when he was on the witness stand, and determined
that his presence on the witness stand and the jury’s ability to assess
his demeanor and body language in responding to questions was suffi-
cient for cross-examination purposes and for confrontation. Held that
the trial court violated the defendant’s right to confrontation when it
admitted into evidence W’s videotaped statement to the police, as W’s
refusal to provide verbal responses to counsels’ questions rendered him
functionally unavailable to testify, which thwarted the defendant from
any meaningful opportunity to cross-examine W and to expose infirmit-
ies in the videotaped statement or the reasons behind W’s recalcitrance
or lack of memory: although W was called to the witness stand and put
under oath before the jury, his outright refusal to respond to any ques-
tions rendered him unavailable for cross-examination, the court did not
make any finding that W intended any of his gestures or body language
to convey a specific nonverbal response to a question that would amount
to a yes or no, and the meaning of the court’s observations of W, which
were unconnected to verbal responses to questions, was ambiguous and
too speculative to be considered the equivalent of testimony, as body
language and demeanor are instructive only in assessing the credibility of
testimony actually given and are not a substitute for verbal or nonverbal
responses that are intended to convey a substantive response to a ques-
tion; accordingly, because the defendant was deprived of an opportunity
to cross-examine W regarding his prior videotaped statement to the
police, the statement was inadmissible, and its improper admission was
not harmless beyond a reasonable doubt, it having been reasonably
likely that the statement played a significant role in the jury’s decision
to disregard the defendant’s justification defense, as the defendant’s
claim that the shooting occurred in his defense of S, even if technically
weak, was sufficiently supported in law and fact such that the court
instructed the jury on that defense, and W’s statement provided the
jury with evidence of a clear and alternative motive on the part of the
defendant to shoot the victim that, if credited, obliterated any need for
the jury to consider the defendant’s justification defense.
Argued October 25, 2018—officially released March 19, 2019
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of Fairfield and tried to the jury
before Kahn, J.; verdict and judgment of guilty, from
which the defendant appealed. Reversed; new trial.
Jennifer B. Smith, assigned counsel, for the appel-
lant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Joseph J. Harry, senior assistant state’s
attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Nirone Hutton, appeals
from the judgment of conviction, rendered against him
after a jury trial, of murder in violation of General Stat-
utes § 53a-54a. The defendant claims on appeal that the
trial court violated his rights under the confrontation
clause of the sixth amendment to the United States
constitution1 as articulated in Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Specifically, the defendant argues that the court vio-
lated his confrontation rights by improperly admitting
into evidence a witness’ prior videotaped statement to
the police in accordance with State v. Whelan, 200 Conn.
743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.
Ct. 597, 93 L. Ed. 2d 598 (1986), because the witness
was functionally unavailable for cross-examination due
to his refusal to provide verbal responses to any ques-
tions asked by the prosecutor or defense counsel when
called to testify before the jury. The defendant further
argues that the improper admission of the witness’ prior
statement did not constitute harmless error because its
content significantly undermined his justification
defense. We agree with the defendant and, accordingly,
reverse the judgment of conviction and remand the
matter for a new trial.2
The jury reasonably could have found the following
facts. Late in the evening on February 27, 2007, the
defendant and Lenworth Williams entered Building 5
of the Greene Homes housing complex in Bridgeport, at
which time they encountered the victim, Juan Marcano,
and several of his friends. The victim and his friends
became embroiled in a confrontation with the defen-
dant and Williams. The defendant, who was part of a
group that controlled the sale of drugs in Building 5,
was angry with the victim because he had been selling
fake crack cocaine in Building 5, damaging the defen-
dant’s reputation and drug business. As the confronta-
tion escalated, the victim went to his car and retrieved
a handgun. At some point, Williams was able to get
away by ascending a nearby staircase, returning soon
thereafter with Garrett Bostick, also known as ‘‘Slim,’’
who lived on the fifth floor of Building 5, and John
Trevil, also known as ‘‘Pealz’’ or ‘‘Pills.’’ When the defen-
dant and his group tried to exit the lobby back into the
stairwell and up the stairs, the victim grabbed Slim and
pulled him back down the stairs, at which time the
victim was kicking and pistol-whipping Slim. The vic-
tim, who was six feet, eight inches tall and weighed
approximately 400 pounds, was considerably larger
than Slim. Neither the defendant nor his friends called
for help or otherwise attempted to break up the fight
by nondeadly means. Rather, the defendant pulled out
a pistol and fired two gunshots into the victim’s back,
which immediately incapacitated him.
The victim’s friends chased the defendant and his
group up the stairs. Slim and Pills went into Slim’s
apartment. The defendant tossed his gun into the apart-
ment before he and Williams continued down the hall-
way, exiting the building via a different stairway.
Williams eventually drove the defendant back to his
mother’s house at 135 Higgins Avenue.
The victim was able to call 911 for medical assistance
and, after the police responded, he was transported
to Bridgeport Hospital. The next morning, the police
arrested Slim, Pills, and a third man, Ricardo Richmond,
at Building 5 on wholly unrelated drug charges. At that
time, the police searched Slim’s apartment and recov-
ered a gun that later was determined to be the gun used
in the shooting of the victim.
The police showed photographs of Slim, Pills and
Richmond to the victim, who remained hospitalized.
The victim was able to identify Slim as the person with
whom he was fighting at the time he was shot. The
victim could not, however, identify the shooter from
the photographs and maintained that the only other
persons in the area at the time of the incident were
himself, Slim, and Slim’s friends. The victim eventually
died of complications from his gunshot wounds.
Despite some leads, the police were unable to
develop sufficient evidence to obtain an arrest warrant,
and the matter eventually was classified as a cold case.
On July 4, 2013, however, Williams, who the police
had arrested and were booking on unrelated charges,
informed the police that he had information about the
2007 shooting. He thereafter gave a videotaped state-
ment to the police in which he identified the defendant
as the person who shot the victim. In his statement,
Williams also explained that Building 5 was part of the
drug dealing territory controlled by the defendant and
Slim. According to Williams, the defendant confronted
and shot the victim because the victim had been selling
fake drugs in Building 5, which adversely affected the
defendant’s drug business.3
Williams’ statement identifying the defendant as the
shooter also corroborated other evidence that the
police had collected implicating the defendant in the
victim’s murder. Specifically, the police had obtained
a letter that the defendant had sent to a friend in prison.
In the letter, the defendant admitted to having commit-
ted a ‘‘redrum,’’ which was street slang for murder, and
he also indicated that Slim had been caught with the
gun he used a few hours later. Additionally, a jailhouse
informant, Anestos Moffat, who was incarcerated for
a time with the defendant and Pills, told the police that
the defendant had confessed to him about shooting a
‘‘Spanish kid’’ who was ‘‘getting the best of Slim . . . .’’
On October 4, 2013, the defendant was arrested and
charged with the victim’s murder.4 He pleaded not guilty
and elected a jury trial. The defendant testified at trial
on his own behalf and admitted to shooting the victim.
The theory of the defense was that the defendant had
shot the victim, not over a dispute about gang turf and
drugs, but in defense of his friend, Slim, who was being
repeatedly pistol-whipped by the victim.5 The state’s
theory was that the confrontation with the victim cen-
tered on a dispute over the victim selling ‘‘burn bags,’’
i.e., fake drugs, in the defendant’s territory and that the
evidence established beyond a reasonable doubt that
the defendant’s actions were not justified as a defense
of others.6
The jury found the defendant guilty of murder. On
May 2, 2016, the court sentenced him to fifty-five years
of incarceration. This appeal followed. Additional facts
and procedural history will be set forth as necessary.
The defendant claims on appeal that the trial court
improperly violated his constitutional right to confron-
tation by admitting into evidence Williams’ videotaped
statement to the police. In particular, the defendant
argues that because Williams refused to answer even
a single question when he was called to testify before
the jury, he was functionally unavailable for purposes
of cross-examination and, therefore, his statement was
inadmissible under State v. Whelan, supra, 200 Conn.
753, and its admission violated his confrontation rights
under Crawford v. Washington, supra, 541 U.S. 36. The
defendant further argues that the state could not dem-
onstrate that the improper admission of the statement
was harmless beyond a reasonable doubt.
The state responds that the court properly admitted
Williams’ statement as a prior inconsistent statement
in accordance with Whelan, and that Williams’ refusal
to give verbal responses to the questions asked at trial
did not implicate the defendant’s confrontation clause
rights because the jury was able to observe and evaluate
Williams’ nonverbal reactions to the questions posed
to him by the prosecutor and by defense counsel. We
agree with the defendant that, despite Williams’ physi-
cal presence on the witness stand, the defendant was
not afforded a meaningful opportunity to cross-examine
Williams about his prior statement due to Williams’
outright refusal to answer questions, and, therefore, the
admission of Williams’ statement violated the defen-
dant’s right to confrontation. We also agree that the
state has failed to demonstrate that the error was harm-
less beyond a reasonable doubt.
The following additional facts are relevant to our
resolution of this claim. On the afternoon of February
3, 2016, during the state’s case-in-chief and outside the
presence of the jury, the state informed the court, Kahn,
J., that it intended to call Williams as its next witness.
The prosecutor informed the court that Williams likely
would be a ‘‘difficult witness’’ and that the court may
want to permit the state first to question him outside
the presence of the jury ‘‘just to see where he stands
. . . .’’ The court asked the prosecutor if Williams had
a ‘‘fifth amendment issue . . . .’’ The prosecutor indi-
cated that because the case was nine years old, every-
thing but the murder fell outside the statute of
limitations and, thus, he did not believe that Williams
intended to invoke the fifth amendment. Nevertheless,
the prosecutor informed the court that the witness was
represented by Attorney Don Cretella, who was present
and could address that issue further. Cretella told the
court that he had spoken with Williams in the court-
house lockup and that he did not anticipate him invok-
ing his fifth amendment right not to incriminate himself.
Cretella, however, informed the court that Williams had
indicated that he was going to refuse to answer any
questions, despite Cretella’s advisement of the possible
consequences of pursuing that course of action. After
taking a brief recess to speak with all counsel in cham-
bers, the court came back on the record and indicated
that it intended to permit the state to question Williams
outside the presence of the jury.
After Williams was sworn in, the court addressed
him. The court first indicated its understanding that
Williams did not intend to invoke his fifth amendment
right not to testify. Williams answered that this was
correct. The court then explained to Williams that, as
a subpoenaed witness, he would be questioned under
oath by the state following which defense counsel
would have an opportunity to cross-examine him. Wil-
liams indicated that he understood the process. When
the court asked if he intended to go forward with that
process, Williams said: ‘‘I’m not complying with nothing
you’re asking me, ma’am.’’ The court responded: ‘‘Well,
I don’t know what you mean by not complying, but the
state is going to ask you some questions . . . .’’
The prosecutor began by asking Williams his name,
which did not elicit a verbal response. The following
colloquy ensued:
‘‘The Court: Mr. Williams, are you going to answer
the questions?
‘‘[Williams]: No. There’s no question. I don’t know
nothing.
‘‘The Court: Well, that’s different. If you don’t know
anything, that’s different. The question is whether
you’re going to answer any of the questions—
‘‘[Williams]: No.
‘‘The Court: —posed to you—
‘‘[Williams]: No.
‘‘The Court: —by the state.
‘‘[Williams]: No.
‘‘The Court: What about questions posed by
[defense counsel]?
‘‘[Williams]: No—um, no, um, no.
‘‘The Court: You understand that if you refuse to
answer questions the court can hold you in contempt?
‘‘[Williams]: Yeah, do that then.
‘‘The Court: And I can sentence you to six months
in jail.
‘‘[Williams]: Okay.
‘‘The Court: That you will not get any credit for any
good time, and it will not count toward any of your
sentence. So that you’re basically doing dead time for
six months with no credit whatsoever.
‘‘[Williams]: Everything is understood.
‘‘The Court: I’m sorry?
‘‘[Williams]: I said I understand. I understand every-
thing clearly.
‘‘The Court: Okay.
‘‘[Cretella]: I have advised him of that, Your Honor.
‘‘The Court: You have advised him—
‘‘[Cretella]: That it’s my opinion that he does—
‘‘The Court: —that the court could hold him in
contempt?
‘‘[Cretella]: And it is my opinion that he does under-
stand what I’ve explained.
‘‘The Court: The state’s position?
‘‘[The Prosecutor]: Your Honor, the state would ask
that the witness be held in contempt if he refuses to
answer the questions.
‘‘The Court: Do you understand, Mr. Williams, that
if—if you believe that the information you gave pre-
viously is wrong, this would be your chance to correct
that, you understand that, and to answer the questions
posed to you by the defense. But it’s your position not
to answer any questions posed by either side?
‘‘[Williams]: No. As I told you before, I’m not answer-
ing no questions. I don’t know nothing.
‘‘[The Prosecutor]: You can say that to each one of
my questions.
‘‘The Court: Yes.
‘‘[The Prosecutor]: You can say that. If you don’t
know anything, you don’t know anything to any of my
questions. Did you meet with Detective [Heitor]
Teixeira?
‘‘[Williams]: (No verbal response.)
‘‘[The Prosecutor]: Did you meet with the Bridgeport
Police Department detectives on July 4th, 2013?
‘‘[Williams]: (No verbal response.)
‘‘[The Prosecutor]: Do you remember meeting with
them?
‘‘[Cretella]: Your Honor, the offer of proof I think
we can safely assume this is how each question will
be answered.
‘‘The Court: So, Mr. Williams, I’m going to begin con-
tempt proceedings. You can talk to your lawyer.’’
After making findings that the defendant had
appeared pursuant to a valid subpoena, he did not have
a valid fifth amendment claim, and he was refusing
to answer any questions ‘‘not just with I don’t know
anything but not even answering,’’ the court gave the
parties an opportunity to address the court regarding
contempt. Both Williams and Cretella declined to make
any statement. The prosecutor also made no statement
with respect to the contempt proceedings but argued
that because Williams had indicated to the court under
oath during the state’s proffer that he did not know
anything about the shooting, which was in direct contra-
diction to his videotaped statement to the police, the
state should be permitted to play the videotaped state-
ment to the jury as a prior inconsistent statement.
Defense counsel argued that Williams was not ‘‘avail-
able’’ to testify and, therefore, his prior statement was
not admissible under Whelan.
The court found Williams in criminal contempt and
imposed a sentence of six months of incarceration for
his failure to answer questions. The court ordered Wil-
liams to return to court the next day, however, and,
indicated that, if Williams decided to answer questions
at that time, the court would consider vacating the
contempt conviction. The court reserved making a deci-
sion on whether Williams’ videotaped prior statement
would be admitted into evidence.
The next day, in the presence of the jury, the state
again called Williams to testify. The prosecutor asked
Williams if he remembered being in court the day before
and telling the judge that he knew ‘‘nothing about noth-
ing . . . .’’ Williams provided no verbal response. The
prosecutor then asked Williams if he remembered being
interviewed by the police on July 4, 2013, and signing
a statement identifying the person who shot the victim
in the present case. Williams refused to respond and
initially would not look at the copy of his written state-
ment when it was handed to him by the prosecutor to
verify his signature on the document. At the state’s
request, the court admonished Williams that he was in
court under a subpoena and had a legal obligation to
answer the questions posed to him. The state briefly
resumed questioning Williams, who continued to give
no verbal responses to the prosecutor’s questions. The
court then excused the jury.
Once the jury left, the prosecutor renewed his request
that the court allow the jury to hear Williams’ video-
taped statement. The prosecutor argued that the state-
ment was admissible under Whelan as a prior
inconsistent statement on the basis of Williams’ testi-
mony to the court the day before that he knew nothing.
Defense counsel responded that the availability of a
witness is a prerequisite to the admission of any Whelan
statement and that Williams’ refusal to answer any of
the questions posed to him rendered him unavailable.
Defense counsel clarified that he was not challenging
whether the videotaped statement was inconsistent
with the position Williams had staked out the day
before, but that the admission of the prior statement
without any opportunity for meaningful cross-examina-
tion would seriously impede the defendant’s right to
confrontation.
The court made an oral ruling admitting Williams’
statement to the police, concluding that the statement
met the Whelan criteria. Specifically, the court found
that the statement was reliably recorded by audio/video-
tape, the statement was duly authenticated, and Wil-
liams had personal knowledge of the events recounted
in the statement. With respect to the defense’s objection
that the witness was functionally unavailable and never
subject to cross-examination with respect to his state-
ment, the court first read into the record Williams’ testi-
mony proffered the day before, concluding: ‘‘Clearly,
his statements yesterday under oath are inconsistent
with the interview he provided to the police back on
July 4th, 2013, as well as what he signed on that date.
And pursuant to State v. Simpson, [286 Conn. 634, 945
A.2d 449 (2008)], the [Supreme] Court admitted under
Whelan a taped interview, even though the witness did
not remember making the prior statement. Also State
[v. Cameron M., 307 Conn. 504, 55 A.3d 272 (2012), cert.
denied, 569 U.S. 1005, 133 S. Ct. 2744, 186 L. Ed. 2d 194
(2013), and overruled in part on other grounds by State
v. Elson, 311 Conn. 726, 748 n.14, 754, 91 A.3d 862
(2014)]. That case really stands for the proposition that
State v. Pierre, [277 Conn. 42, 890 A.2d 474, cert. denied,
547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006)]
and other cases this court is relying on are still valid law.
‘‘State [v. Eaton, 59 Conn. App. 252, 755 A.2d 973,
cert. denied, 254 Conn. 937, 761 A.2d 763 (2000)]. Also,
there is no need for the court to find that the lack
of memory is not feigned. And that’s under State [v.
Cameron M., supra, 307 Conn. 504] and State [v. Rodri-
guez, 139 Conn. App. 594, 56 A.3d 980 (2012), cert.
denied, 308 Conn. 902, 60 A.3d 286 (2013)]. And specifi-
cally in [Rodriguez], the issue was raised about a wit-
ness’ lack of response to any questions . . . . And in
a footnote the [Appellate Court] wrote: we note that
the witness, in that case, need not have affirmatively
renounced his statement for the court to have properly
decided it was inconsistent. [State v. Rodriguez, supra,
605 n.12.] The court makes its determination based on
the overall effect of the witness’ testimony looking at
both omissions and contradictions under State v.
[Whelan, supra, 200 Conn. 743].
‘‘Both under [Cameron M.], [Rodriguez], as well as
[Pierre], State [v. George J., 280 Conn. 551, 910 A.2d
931 (2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919,
167 L. Ed. 2d 573 (2007)], and under Crawford and
other cases cited under Crawford, it is obvious that
as far as availability, both under Crawford and under
Whelan, as long as the witness is physically present on
the stand, as he is, and the jury is able to assess his
demeanor, his body language, his gestures, his omis-
sions in responding to questions, that is sufficient for
cross-examination purposes and for confrontation. And
in State [v. Pierre, supra, 277 Conn. 57], [our Supreme
Court] noted: The cross-examination to which a
recanting witness will be subjected is likely to be mean-
ingful because the witness will be forced either to
explain the discrepancies between the earlier state-
ments and his present testimony or to deny [that] the
earlier statement was made at all. If, from all [that] the
jury see of the witness, they conclude that what he says
now is not the truth, but what he said before, they are
none the less deciding from what they see and hear of
that person and in court. . . . The jury can, therefore,
determine whether to believe the present testimony,
the prior statement, or neither. . . . Quite simply,
when the declarant is in court, under oath, and subject
to cross-examination before the [fact finder] concerning
both his out-of-court and in-court statements, the usual
dangers of hearsay are largely nonexistent. [Internal
quotation marks omitted.]
‘‘The court [in Pierre] goes on to note that: Addition-
ally, we note that other jurisdictions that have had the
opportunity to interpret what it means to [appear] for
cross-examination under Crawford [v. Washington,
supra, 541 U.S. 60 n.9], have concluded that a refusal
or inability by the witness to recall the events recorded
in a prior statement does not render the witness unavail-
able for purposes of cross-examination. And they cite
cases for which I will now not cite. So, here’s what
I’m going to do. I’m going to allow the statements to
come in.’’
The court then addressed Williams, explaining that
the court was going to bring the jury back into the
courtroom and that the state would resume asking him
questions. The court explained: ‘‘You can choose to
answer them or proceed the way you have, at which
point they will read portions of yesterday’s transcript,
and the state will move to admit [your prior written
and videotaped statements], at which point, based on
my ruling, I will allow that to come in. It’s your choice
whether you choose to answer the state’s questions,
not answer the state’s questions, recant your statement,
not recant it; take it back, not take it back, answer the
defense’s questions or not.
‘‘I want you to understand something. Not answering
the defendant’s questions, you’re not helping him any
because the case law is clear, just by sitting there that’s
enough for cross-examination for the jury to assess
whether you’re truthful—your statement back then was
truthful or not. They can assess your demeanor and
your conduct.’’
After the jury returned, the prosecutor asked Wil-
liams a series of questions, none of which elicited any
verbal response. Williams’ prior videotaped statement
was admitted into evidence and played for the jury.
Williams refused to respond to any of the prosecutor’s
remaining questions, and he also refused to give verbal
responses when defense counsel sought to cross-exam-
ine him. After both the prosecutor and defense counsel
indicated they had no more questions for Williams, the
court excused the jury.
Outside the presence of the jury, the court then
elected to vacate Williams’ contempt conviction ren-
dered the day before despite the fact that Williams had
continued to engage in the same contumacious behavior
that had justified the court holding him in contempt
the previous day.7 The court next decided to place on
the record the following observations it had made of
Williams and the jury while Williams was on the stand:
‘‘[T]he jury was looking at the witness while he was
being asked questions both by the state as well as on
cross-examination by the defense.
‘‘For the record, the defense questioned, based on
my timing, this witness for approximately over forty
minutes or certainly close to forty minutes. When—
there were times when I observed the witness he either
raised his eyebrows, looked askance at counsel. He
raised his eyebrows at certain critical times, like when
he was cross-examined about not knowing the date of
the shooting when the police asked him the date. He
first didn’t look at state’s exhibits 9 and 14, then he
looked at it, then he looked and looked away. He
had gestures.
‘‘When questioned about whether he could see the
first step let alone the landing, he looked down. When
asked how long he was selling drugs in Building 5, he
looked up at the ceiling. Questioned about not telling
the police that the name of the project was Greenes or
something like that, yet he knew the name well, he
closed his eyes. When asked about whether he was a
womanizer, he didn’t audibly do it but he sort of chuck-
led in his nonverbal expression. When questioned
whether he wanted the jury to believe that he didn’t
know where this girl lived that he was seeing, he sat
straight up.
‘‘Again, he continued to make facial expressions, clos-
ing his eyes. He sighed when he was asked questions
about Caroline [a woman at Greene Homes with whom,
he told the police, he had been having sex] and that
being the reason he went to Building 5, and saying that
she was nice and straight. When asked about whether
he indicated that [the victim] was the villain who went
out of his way to raise trouble, he nodded and raised
his eyebrows. Asked questions about whether he
observed the victim go to the car to grab a gun and then
start a conversation with Slim, he raised his eyebrows,
sighed, and looked at defense counsel. And there were
many instances where he did that.
‘‘When he was questioned about not knowing [the
defendant’s] name as Nirone Hutchinson, he frowned.
When asked about his plea agreement and plea deal to
get cooperation for his testimony, he nodded and raised
his eyebrows, and then when asked about whether he
told the police he was smoking and what he was smok-
ing, which was toward the end of the cross, he sighed
again. So, there were many instances. I didn’t capture
them all, but certainly his body language is something
from which the jury can assess his credibility.’’
We begin our discussion of the defendant’s claim by
setting forth the legal principles that govern our review.
Although we review evidentiary rulings, including
whether a statement is properly admitted pursuant to
Whelan, under a deferential abuse of discretion stan-
dard; State v. Simpson, supra, 286 Conn. 643; whether
the trial court properly concluded that the admission
of Williams’ videotaped statement to the police did not
violate his confrontation clause rights under Crawford
presents a legal question over which we exercise ple-
nary review. State v. George J., supra, 280 Conn. 592.
Generally, a statement made outside of court and
offered at trial to establish the truth of the facts con-
tained in that statement is hearsay and, therefore, pre-
sumptively inadmissible. Conn. Code Evid. §§ 8-1 and
8-2. There are, nevertheless, many exceptions to the
hearsay rule. One such exception is set forth in § 8-5 of
the Connecticut Code of Evidence, which incorporates
and codifies a rule established in State v. Whelan, supra,
200 Conn. 753.
In Whelan, our Supreme Court rejected traditional,
common-law application of the hearsay rule, pursuant
to which courts admitted prior inconsistent statements
only for impeachment purposes, and ‘‘adopted [a] rule
allowing the substantive use of a prior inconsistent
statement if: (1) the statement is in writing; (2) it is
signed by the declarant; (3) the declarant has personal
knowledge of the facts set forth in the statement; and
(4) the declarant testifies at trial and is subject to cross-
examination.’’ (Footnote omitted.) State v. Hopkins,
222 Conn. 117, 123, 609 A.2d 236 (1992). The court in
Whelan explained: ‘‘[If] the declarant is available for
cross-examination the jury has the opportunity to
observe him as he repudiates or varies his former state-
ment. The cross-examination to which a recanting wit-
ness will be subjected is likely to be meaningful because
the witness will be forced either to explain the discrep-
ancies between the earlier statements and his present
testimony, or to deny that the earlier statement was
made at all. If, from all that the jury see of the witness,
they conclude that what he says now is not the truth,
but what he said before, they are none the less deciding
from what they see and hear of that person and in
court. . . . The jury can, therefore, determine whether
to believe the present testimony, the prior statement,
or neither. . . . Quite simply, when the declarant is in
court, under oath, and subject to cross-examination
before the factfinder concerning both his out-of-court
and in-court statements, the usual dangers of hearsay
are largely nonexistent.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) State v.
Whelan, supra, 200 Conn. 750–51.
Section 8-5 of the Connecticut Code of Evidence codi-
fies the Whelan rule, including later developments and
clarifications of that rule. It provides in relevant part:
‘‘The following are not excluded by the hearsay rule,
provided the declarant is available for cross-examina-
tion at trial: (1) . . . A prior inconsistent statement
of a witness, provided (A) the statement is in writing
or otherwise recorded by audiotape, videotape or some
other equally reliable medium, (B) the writing or
recording is duly authenticated as that of the witness,
and (C) the witness has personal knowledge of the
contents of the statement.’’ (Emphasis added.) As
explained in the commentary to the rule, ‘‘[u]se of the
word ‘witness’ in Section 8-5 (1) assumes that the
declarant has testified at the proceeding in question,
as required by the Whelan rule.’’ (Emphasis added.)
Conn. Code Evid. § 8-5 (1), commentary.
Even if hearsay evidence satisfies an exception to
the hearsay rule, however, it may remain inadmissible
in a criminal case unless it also comports with the
confrontation clauses of the federal and state constitu-
tions.8 Conn. Code Evid. § 8-2 (b);9 see also California
v. Green, 399 U.S. 149, 155–56, 90 S. Ct. 1930, 26 L. Ed.
2d 489 (1970) (noting that ‘‘more than once [the court
had] found a violation of confrontation [rights] even
though the statements in issue were admitted under an
arguably recognized hearsay exception’’).
In Crawford v. Washington, supra, 541 U.S. 68, the
United States Supreme Court reexamined and refined
its confrontation clause jurisprudence with respect to
its limitations on the admission of hearsay evidence in
criminal cases. Prior to Crawford, courts faced with
deciding whether the admission of a hearsay statement
would violate the confrontation clause followed the test
set forth in Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct.
2531, 65 L. Ed. 2d 597 (1980), overruled in part by
Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004). Under Roberts, hearsay
statements by an unavailable declarant were constitu-
tionally admissible provided that the statement had an
‘‘adequate indicia of reliability,’’ which could be inferred
by a court either on the basis of a ‘‘firmly rooted hearsay
exception’’ or if the statement bore other ‘‘particular-
ized guarantees of trustworthiness.’’ Id. Thus, in prac-
tice, a defendant’s confrontation rights were generally
not implicated provided that a hearsay statement was
admitted pursuant to a recognized statutory or com-
mon-law exception to the hearsay rule. The court
rejected that approach in Crawford, overruling Roberts.
The court in Crawford reasoned that the cornerstone
of a defendant’s right to confrontation was not the relia-
bility or trustworthiness of a statement, but the defen-
dant’s opportunity to question the declarant about the
statement through cross-examination. It observed that
hearsay statements fell into two broad categories: testi-
monial and nontestimonial.10 The court held that, in a
criminal trial, the confrontation clause prohibits the
admission of testimonial hearsay statements by an
unavailable declarant unless the defendant previously
had an opportunity to cross-examine the declarant
about the statement. The court made clear that if a
declarant appears for cross-examination at trial, the
confrontation clause ‘‘places no constraints at all on
the use of [the declarant’s] prior testimonial statements
. . . so long as the declarant is present at trial to defend
or explain it.’’ (Citations omitted.) Crawford v. Wash-
ington, supra, 541 U.S. 60 n.9. Accordingly, pursuant
to the confrontation clause, ‘‘[a witness’] testimony
against a defendant is thus inadmissible unless the wit-
ness appears at trial or, if the witness is unavailable,
the defendant had a prior opportunity for cross-exami-
nation.’’ Melendez-Diaz v. Massachusetts, 557 U.S. 305,
309, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).
Turning to the present case, the defendant does not
dispute that Williams’ testimonial statement to the
police was inconsistent with sworn testimony that Wil-
liams provided outside the presence of the jury that he
‘‘knew nothing,’’ from which it reasonably could be
inferred that he was claiming to know nothing about
the shooting. There is also no dispute that the state
sought to admit Williams’ prior statement for the truth
of the matters asserted therein, which included both
Williams’ identification of the defendant as the shooter
and his explanation for why the defendant shot the
victim, which directly undermined the defense’s theory
of the case that the defendant was justified in shooting
the victim. The court considered all the relevant factors
set forth in Whelan, including Williams’ ‘‘availability’’
for cross-examination at trial and concluded that his
prior inconsistent statement was made with personal
knowledge, properly recorded and authenticated, and,
thus, was admissible hearsay under the Whelan rule.
The dispute on appeal is limited to whether the court
properly rejected the defendant’s argument that, due
to Williams’ refusal to provide verbal responses to any
of the questions asked under oath by the prosecutor
and by defense counsel, Williams was functionally
unavailable, thus thwarting the defendant from any
meaningful opportunity to cross-examine Williams
about his prior statement, something that was neces-
sary to satisfy both the Whelan rule and to protect
his right to confrontation. Accordingly, we must first
consider whether the defendant was denied an opportu-
nity for cross-examination that implicated his right to
confrontation, and then, if so, whether that constitu-
tional violation was harmless beyond a reasonable
doubt.
I
The United States Supreme Court has described the
right of confrontation as composed of several elements:
‘‘physical presence, oath, cross-examination, and obser-
vation of demeanor by the trier of fact . . . .’’ Mary-
land v. Craig, 497 U.S. 836, 846, 110 S. Ct. 3157, 111 L.
Ed. 2d 666 (1990). Neither the United States Supreme
Court nor any appellate court in this state has held that
a witness’ mere physical presence at trial on the witness
stand is sufficient to satisfy a criminal defendant’s right
to confrontation. Such a holding would be inconsistent
with the right to an adequate opportunity to cross-exam-
ine, an indispensable element of a defendant’s right to
confrontation. See State v. Martinez, 171 Conn. App.
702, 733–34, 158 A.3d 373 (‘‘primary interest secured
by confrontation is the right to cross-examination’’ and
‘‘if testimony of a witness is to remain in the case as a
basis for conviction, the defendant must be afforded a
reasonable opportunity to reveal any infirmities that
cast doubt on the reliability of that testimony’’ [internal
quotation marks omitted]), cert. denied, 325 Conn. 925,
160 A.3d 1067 (2017); 5 J. Wigmore, Evidence (Chad-
bourn Rev. 1974) § 1395, p. 150 (‘‘[t]he main and essen-
tial purpose of confrontation is to secure for the
opponent the opportunity of cross-examination’’
[emphasis in original]).
‘‘The test of cross-examination is the highest and
most indispensable test known to the law for the discov-
ery of truth.’’ Bishop v. Copp, 96 Conn. 571, 575, 114
A. 682 (1921). Cross-examination ‘‘cannot be had except
by the direct and personal putting of questions and
obtaining immediate answers.’’ (Emphasis added.) 5
J. Wigmore, supra, p. 150. ‘‘Ordinarily, a witness is
regarded as subject to cross-examination when he is
placed on the stand, under oath, and responds willingly
to questions.’’ (Emphasis added; internal quotation
marks omitted.) United States v. Owens, 484 U.S. 554,
561, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988). We certainly
are mindful that ‘‘the [c]onfrontation [c]lause guaran-
tees only an opportunity for effective cross-examina-
tion, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.’’
(Emphasis in original; internal quotation marks omit-
ted.) Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct.
2658, 96 L. Ed. 2d 631 (1987). Further, ‘‘[t]he [c]onfronta-
tion [c]lause includes no guarantee that every witness
called by the prosecution will refrain from giving testi-
mony that is marred by forgetfulness, confusion, or
evasion. To the contrary, the [c]onfrontation [c]lause
is generally satisfied when the defense is given a full and
fair opportunity to probe and expose these infirmities
through cross-examination, thereby calling to the atten-
tion of the factfinder the reasons for giving scant weight
to the witness’ testimony.’’ Delaware v. Fensterer, 474
U.S. 15, 21–22, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985).
In other words, ‘‘[t]he [confrontation clause] does not
bar admission of a statement so long as the declarant
is present at trial to defend or explain it.’’ (Emphasis
added; internal quotation marks omitted.) State v.
Pierre, supra, 277 Conn. 78.
Accordingly, the mere fact that a witness is called to
the stand and placed under oath does not mean that
the witness is necessarily available for cross-examina-
tion. In some circumstances, an otherwise available
witness might render themselves unavailable by his or
her actions on the witness stand. Although no appellate
court in this state has squarely addressed whether a
witness is ‘‘available for cross-examination’’ if he or she
refuses outright to answer any questions after being
sworn in to testify, courts in other jurisdictions that
have considered this issue have concluded that such a
witness is functionally unavailable and, therefore, the
admission of a prior statement of that witness would
violate the confrontation clause’s guarantee of an
opportunity to cross-examine. Although not binding on
this court, we find these cases persuasive.11 The state
has not cited, nor has our own research revealed, any
post-Crawford court decision expressly holding that a
witness who takes the stand but then refuses to answer
any questions despite having no valid right to refuse to
answer the questions is available for cross-exami-
nation.12
In Barksdale v. State, 265 Ga. 9, 453 S.E.2d 2 (1995),
the Georgia Supreme Court was presented with a situa-
tion quite similar to the one now before us. The defen-
dant in Barksdale was charged with murder and armed
robbery. The state called as a witness one of the defen-
dant’s accomplices, who already had pleaded guilty to
armed robbery in exchange for the state’s dropping the
murder charge against him. The witness, who remained
incarcerated, refused to testify at trial, believing that,
by doing so, he would put his life in danger. After con-
sulting with counsel, the trial court ruled that the wit-
ness did not have any valid fifth amendment privilege
to assert, and the court ordered him to testify. The
witness nevertheless continued to refuse to answer any
questions. The prosecutor asked the court to hold him
in contempt, but the trial court declined to do so imme-
diately. The state also moved to admit a videotaped
statement that the witness previously had provided to
the police. The court postponed ruling on the request
to permit counsel time to research the issue. The next
day, the state recalled the witness. The prosecutor
asked the witness if he still refused to answer questions
in light of a possible criminal contempt conviction. He
continued to refuse to testify and was excused. The
state renewed its motion to admit the prior videotaped
statement, arguing that it was admissible for substan-
tive purposes as a prior inconsistent statement under
Georgia’s version of the Whelan rule.13 The defendant
objected, arguing, inter alia, that the admission of the
videotaped statement would violate his confrontation
rights. The trial court nevertheless ruled that the video-
taped statement was admissible as a prior inconsistent
statement. The state recalled the witness to the stand
and played the videotaped statement to the jury. At the
conclusion of the videotape, the court permitted the
defense to attempt to cross-examine the witness.
Defense counsel asked the witness if he intended to
continue to refuse to answer questions. The witness
answered in the affirmative, and defense counsel indi-
cated that he had nothing further to ask.
In his appeal of the conviction, the defendant in Bark-
sdale claimed that the admission of the videotaped prior
statement violated his right to confrontation because
the witness was not subject to cross-examination
regarding the prior statement. The Georgia Supreme
Court unanimously agreed and reversed his conviction.
In so doing, it distinguished for confrontation purposes
the case before it, in which the witness refused to
answer questions outright, from cases in which a wit-
ness had testified but asserted a lack of memory regard-
ing a prior statement or the events at issue. In the latter
line of cases, the court explained, the defendant had
‘‘the opportunity to cross-examine a forgetful witness
about such matters as his bias, his lack of care and
[attentiveness] . . . and even . . . the very fact that
he has a bad memory.’’ Id., 13, quoting United States
v. Owens, supra, 484 U.S. 559. The court reasoned that
unlike a witness who claims memory loss but nonethe-
less is willing to answer questions, the witness in the
case before it had refused to provide any answers to
questions, even in the face of a trial court’s order to
do so or be held in contempt and, thus, ‘‘was not avail-
able for cross-examination.’’14
The Pennsylvania Supreme Court reached a similar
conclusion in In re N.C., 629 Pa. 475, 105 A.3d 1199
(2014). In that case—a delinquency adjudication in
which the juvenile was alleged to have committed a
sexual assault on a three year old child—the court deter-
mined that a juvenile court had admitted a videotaped
forensic interview of the minor victim in violation of
the juvenile’s right to confrontation. Although the vic-
tim, who was four years old at the time of the adjudica-
tion hearing, was found competent by the juvenile court
to testify; id., 480; she was unable on direct examination
to verbalize any responses to questions about the juve-
nile or his alleged contacts with her, although she did
nod or shake her head in response to a few preliminary
questions. Id., 480–81. After a number of unsuccessful
attempts to elicit her testimony, the witness eventually
became totally unresponsive and curled up into a fetal
position.15 Id., 487. The juvenile court inquired if defense
counsel would like to ask her any questions, but defense
counsel declined. Id.
Later in the proceeding, following the testimony of
a forensic interviewer, the juvenile court admitted, over
the objections of defense counsel, a DVD containing a
previously recorded forensic interview of the witness.
Id., 487–88. The juvenile objected on the grounds that
the video constituted testimonial hearsay evidence and
that its admission would violate his sixth amendment
right to confrontation. Id. The juvenile court ruled that
although there was no Pennsylvania case law defining
what it means to testify in a proceeding, it concluded
that the witness effectively had testified because she
was found competent to testify and took the witness
stand. Id., 488. The juvenile was adjudicated delinquent
and appealed to the Superior Court.
The juvenile claimed on appeal that the admission of
the witness’ prior testimonial statement to the forensic
interviewer was admitted in violation of Crawford
because the witness had been unavailable for cross-
examination at the adjudicatory hearing. Id., 489–90.
The Superior Court agreed, concluding that the juvenile
court had improperly found that the witness was avail-
able for sixth amendment purposes. It reversed the
delinquency adjudication and ordered a new hearing.
Id., 490.
The commonwealth was granted permission to
appeal from the Superior Court’s decision to the Penn-
sylvania Supreme Court. Id., 492. The commonwealth
argued that the dispositive concern under the confron-
tation clause was not ‘‘the manner in which a witness
performs during direct examination but rather whether
the defendant was given the opportunity to conduct an
effective cross-examination of that witness.’’ Id., 494.
The commonwealth contended that ‘‘a [witness’] eva-
siveness, refusal to cooperate, or lack of memory of
certain events does not preclude a finding that a defen-
dant’s right to cross-examine that witness under the
confrontation clause has been satisfied.’’ Id. The juve-
nile responded that the United States Supreme Court
has always required ‘‘meaningful participation in the
courtroom proceeding before a witness may be deemed
available for cross-examination and that the [c]ommon-
wealth’s arguments stand for the proposition that the
mere presence of a witness in the courtroom will satisfy
a defendant’s constitutional right to confront that wit-
ness.’’ Id., 497. The juvenile noted that the confrontation
clause as interpreted by the United States Supreme
Court ‘‘requires a witness who appears and takes the
stand at trial and willingly responds to questions.’’
(Emphasis added.) Id.
The Pennsylvania Supreme Court unanimously
agreed with the juvenile that his right to confrontation
was violated and affirmed the decision of the Superior
Court. Id., 504. The court explained: ‘‘[I]t is difficult to
harmonize the juvenile court’s ultimate determination
at the adjudicatory hearing that [the minor witness]
was available for cross-examination under the [s]ixth
[a]mendment with its unequivocal statement on the
record earlier that ‘she’s not going to testify’ and its
observation she did not testify on the substantive issues
of the case. . . . Its contemporaneous courtroom
observations also belie the juvenile court’s characteriza-
tion of [the witness’] behavior as merely ‘less than forth-
coming’ . . . . [A] review of its explanation for its
reasoning on the record suggests the juvenile court
conflated the federal constitutional challenge that was
before it—whether [the juvenile’s] right to confronta-
tion under the [c]onfrontation [c]lause of the [s]ixth
[a]mendment had been satisfied—with the separate
issues of [the witness’] competency to testify at the
adjudicatory hearing . . . and of whether the forensic
interview was admissible under [a statutory hearsay
exception].
‘‘We cannot find the confrontation element of Craw-
ford was met herein, for Crawford and its progeny
require an opportunity for effective cross-examination
which [the juvenile] simply did not have. Contrary to
the juvenile court’s analysis, defense counsel’s indica-
tion he had no questions on cross-examination cannot
be deemed to have been a strategic choice, for any
attempt on his part to continue to question this young
witness whose fear and fragility were evident during
direct examination and whose last expression before
melding herself into a fetal position on her grandmoth-
er’s lap was a desire to go home would have been, at
best, pro forma. In addition, [the witness] did not act
merely with trepidation at the hearing; she provided
virtually no verbal responses on direct examination,
despite two recesses and as many changes in caregivers
to comfort her while she was on the witness stand which
effectively left defense counsel with no opportunity
to cross-examine her on the charges brought against
[the juvenile].
‘‘[The witness’] inability to speak and physical recoil-
ing simply is not of the ilk of the witnesses in the
caselaw to which the [c]ommonwealth cites who either
could not remember certain details or refused to coop-
erate with counsel. As such, the Superior Court cor-
rectly determined that the juvenile court improperly
deemed [the witness] to have been available for cross-
examination and that [the juvenile’s] right to confront
her guaranteed under the [c]onfrontation [c]lause of
the[s]ixth [a]mendment to the United States constitu-
tion had been violated when it admitted her recorded
statements, which were testimonial in nature, into evi-
dence during [the juvenile’s] adjudicatory hearing with-
out [his] having had a prior opportunity to cross-
examine her.’’ (Citations omitted; emphasis altered.)
Id., 503–504.
Finally, in State v. Irlas, 888 N.W.2d 709 (Minn. App.
2016), the Court of Appeals of Minnesota, was asked
to determine, as a matter of first impression, whether
a witness who took the stand and answered some pre-
liminary questions, but then invoked his fifth amend-
ment privilege and refused to respond willingly to
questions about a prior guilty plea statement, was not
available for cross-examination for purposes of the con-
frontation clause. Id., 713. The court concluded that,
although the witness’ invocation of his fifth amendment
right on the stand was invalid, it nevertheless rendered
him unavailable for cross-examination, and the subse-
quent admission of his prior plea transcript violated the
defendant’s rights under the confrontation clause. Id.
The court explained that, by refusing to respond to
questions, the witness ‘‘did not testify . . . making him
not subject to cross-examination under Crawford.’’
Id., 714.
On the basis of the preceding case law and our careful
consideration of confrontation clause jurisprudence as
it exists post-Crawford, with its emphasis on the signifi-
cance of a defendant’s right to cross-examine a declar-
ant about any out-of-court testimonial statement that
the state seeks to admit against the defendant for sub-
stantive purposes, we conclude that Williams’ video-
taped statement to the police was admitted in violation
of the defendant’s constitutional right to confrontation.
Although Williams was called to the stand and put under
oath before the jury, he outright refused to give any
verbal responses to questions asked of him. Although
both the prosecutor and the defense counsel were per-
mitted to ask Williams a series of questions, merely
posing questions is not the equivalent of cross-examina-
tion; the defendant is also entitled to answers, whatever
they may be. If a witness does not provide even a single
answer while on the witness stand, the defendant is
completely deprived of any opportunity he might have
to probe and expose infirmities in the witness’ prior
statement or even the reasons behind the witness’ recal-
citrance or lack of memory. Williams’ outright refusal
to respond to any questions rendered him unavailable
for cross-examination, and because the defendant never
had any other opportunity to cross-examine Williams
about his statement to the police prior to trial, admis-
sion of that statement violated Crawford.
Our conclusion that Williams was unavailable for pur-
poses of cross-examination is consistent with the Fed-
eral Rules of Evidence regarding criteria that render a
witness unavailable under the federal rules for purposes
of admitting hearsay statements. Rule 804 (a) of the
Federal Rules of Evidence provides in relevant part: ‘‘A
declarant is considered to be unavailable as a witness
if the declarant . . . (2) refuses to testify about the
subject matter despite a court order to do so . . . .’’
As this court has previously noted, prior to the adoption
of the Connecticut Code of Evidence, our Supreme
Court has cited with approval rule 804 in determining
whether a declarant was unavailable as a witness. See
State v. Richard P., 179 Conn. App. 676, 687 n.11, 181
A.3d 107, cert. denied, 328 Conn. 924, 181 A.3d 567
(2018), citing State v. Bryant, 202 Conn. 676, 694, 523
A.2d 451 (1987). Here, despite the court’s order that
he answer questions, Williams refused to provide any
information about the ‘‘subject matter,’’ which here
meant any information about the shooting or about the
circumstances surrounding his videotaped statement to
the police.
In reaching its contrary conclusion that the defen-
dant’s confrontation rights were not violated on the
basis of Williams’ outright refusal to respond to ques-
tions, the court relied on a line of cases in which a
witness’ prior statement was deemed properly admitted
despite the witness’ claimed lack of memory either
about the statement and/or the events in question. See
State v. Cameron M., supra, 307 Conn. 504; State v.
Simpson, supra, 286 Conn. 634; State v. George J., supra,
280 Conn. 551; State v. Pierre, supra, 277 Conn. 42;
State v. Rodriguez, supra, 139 Conn. App. 594; State v.
Eaton, supra, 59 Conn. App. 252. For purposes of the
confrontation clause analysis now before us, however,
we conclude, as did the court in Barksdale v. State,
supra, 265 Ga. 12–13, that cases involving a witness with
memory loss, whether real or feigned, are sufficiently
distinguishable from the circumstances of the present
case to render their holdings inapposite. See also People
v. Foalima, 239 Cal. App. 4th 1376, 1390–91, 192 Cal.
Rptr. 3d 136 (2015) (‘‘[An] opportunity [to cross-exam-
ine] may be denied if a witness refuses to answer ques-
tions, but it is not denied if a witness cannot remember.
A witness who refuses to answer any question on direct
or cross-examination denies a defendant the right to
confrontation which contemplates a meaningful oppor-
tunity to cross-examine the witness. . . . By contrast,
a witness who suffers from memory loss—real or
feigned—is considered subject to cross-examination
because his presence and responses provide the jury
with the opportunity to see [his] demeanor and assess
[his] credibility.’’ [Citations omitted; internal quotation
marks omitted.]). It is helpful to briefly discuss this line
of cases before explaining why they are not controlling
under the circumstances of the present case.
The earliest case cited by the trial court was State
v. Eaton, supra, 59 Conn. App. 252, a case decided by
this court prior to Crawford. In Eaton, we held that a
witness’ written statement to the police properly was
admitted as a full exhibit under Whelan despite the fact
that the witness, when called to testify at trial, indicated
that she could not recall making the statement. Id., 264.
Specifically, the record on appeal showed that after
the witness was called to testify, she was shown the
statement that she previously had given to the police.
The witness, in response to questioning, indicated that
although she recognized the signature on the statement
as being her own, she did not recall making the state-
ment. The statement was then admitted into evidence
under Whelan over the objection of the defendant. The
defendant was permitted to cross-examine the witness,
and ‘‘probed into the circumstances under which she
gave her statement to the police, including how she got
to the police station, how long she was there, how she
was questioned, who questioned her, how she answered
the questions and whether the police had [identified
the perpetrator].’’ Id., 258. This court concluded on
appeal that the defendant’s sixth amendment right to
confrontation was not violated because, despite the
claim of lack of memory, the defendant had a meaning-
ful opportunity to cross-examine the witness while she
was on the witness stand. We explained: ‘‘Although [the
witness] was uncooperative for the defense as well as
for the state in failing to recall her statement to the
police even after she was given the opportunity to
review it, she did describe in some detail the circum-
stances of when she gave her statement to the police.
She was able to recall that she signed and initialed the
statement after it was read to her and that she was
present at the club at the time of that incident. Signifi-
cantly, she testified that the contents of her statement
. . . were truthful.’’ Id., 266.
In State v. Pierre, supra, 277 Conn. 42, our Supreme
Court rejected the defendant’s claim on appeal that the
trial court improperly admitted a witness’ prior written
statement to the police because the witness was func-
tionally unavailable for cross-examination at trial and
the defendant had not had any prior opportunity to
cross-examine the witness about the statement. The
defendant argued that although the witness had taken
the stand at trial and answered questions, he was func-
tionally unavailable because he claimed that he ‘‘could
not remember ever having heard any of the information
recounted in the written statement, that he never had
substantively reviewed the statement, and had signed
the document only to stop the police from harassing
him . . . .’’ Id., 79. The Supreme Court agreed with the
state that the defendant’s confrontation right to cross-
examination was not violated because the witness ‘‘took
the stand at trial, agreed to testify truthfully, was subject
to cross-examination by the defendant, and answered
all questions posed by defense counsel.’’ (Emphasis
added.) Id., 84. The witness asserted in response to
questions that he had no memory of the details con-
tained in his signed statement to the police. The court
noted, however, that the witness ‘‘acknowledged meet-
ing with the detectives in his attorney’s office and sign-
ing the written statement prepared by the investigating
officers. Additionally, [the witness] responded to sev-
eral questions regarding his motives and interest in
providing information to the police. . . . [The witness]
stated that he had signed the written statement despite
the fact that it was not accurate, because the police
had contacted him on several occasions and he was
interested in trying to get them to stop bothering him.
Moreover, [the witness] confirmed several other pieces
of information contained in the statement . . . .’’ Id.,
84–85. In sum, the court held that ‘‘a witness’ claimed
inability to remember earlier statements or the events
surrounding those statements does not implicate the
requirements of the confrontation clause under Craw-
ford, so long as the witness appears at trial, takes an
oath to testify truthfully, and answers the questions put
to him or her during cross-examination.’’ (Emphasis
added.) Id., 86. Later that same year, in State v. George
J., supra, 280 Conn. 551, our Supreme Court, citing
Pierre, reiterated that the fact that a testifying witness
claimed to have no recollection of the contents of a
past statement did not render the witness unavailable
for Crawford purposes. Id., 596.
In 2008, our Supreme Court decided State v. Simpson,
supra, 286 Conn. 634. The defendant in Simpson had
been convicted, inter alia, of sexually assaulting a
minor. During trial, the court had admitted into evi-
dence for substantive purposes under Whelan portions
of a videotaped forensic interview of the victim, after
the victim testified at trial that she did not remember the
defendant touching her body in the way she described
in the video. One of the defendant’s claims on appeal
was that the witness’ lack of memory of the events
rendered her functionally unavailable for cross-exami-
nation under Crawford. Relying on its prior decisions
in Pierre and George J., the court upheld the admission
of the videotape. In so doing, the court noted that the
defendant ‘‘cross-examined [the witness] extensively
about her memory and perception . . . .’’ Id., 654. Fur-
ther, with respect to the specific allegations contained
in the videotaped statement, ‘‘the defendant also cross-
examined [the witness] extensively and elicited testi-
mony that she had never seen a man or boy without
his clothing on, and that she did not remember partici-
pating in the videotaped interview or making the accu-
sation that the defendant had touched her with his
penis, that she got in trouble when she was younger
for touching herself, and that she was not afraid of the
defendant. Finally, the defendant was able to utilize
this information in his closing arguments to the jury.
Accordingly, we conclude that the defendant had an
ample opportunity to cross-examine [the witness] effec-
tively, and, therefore, his confrontation clause rights
were not violated by the admission into evidence of the
videotaped statement.’’ Id., 654–55.
In State v. Cameron M., supra, 307 Conn. 504, the
Supreme Court rejected a claim nearly identical to the
one raised in Simpson, namely, that the child sexual
assault victim was functionally unavailable for cross-
examination for purposes of Crawford because she tes-
tified at trial during direct examination that she could
not remember anything regarding the forensic interview
or the allegations at issue. Id., 515–16. The court indi-
cated that to the extent the defendant was claiming
that the witness was functionally unavailable solely due
to her lack of memory, that claim was controlled by its
holding in Simpson. Further, the court noted that the
defendant had elected not to cross-examine the witness
and, thus, any lack of cross-examination was the result
of ‘‘a strategic election by the defendant . . . .’’ Id.,
520. The fact that ‘‘the victim could have been cross-
examined on, for example, her memory and understand-
ings of truth and fantasy was sufficient to render her
available for confrontation purposes under Crawford.’’
(Emphasis omitted.) Id.
The circumstances of the present case render it dis-
tinguishable from Pierre and its progeny. In each of
those cases, the witness willingly provided some
responses to the questions asked when called to testify.
Although the witnesses in the cases cited by the trial
court claimed or feigned memory loss regarding the
information provided in the statement or of making the
statement at all, they nevertheless responded verbally
to questioning, providing some relevant information
from which the jury, in combination with the witness’
demeanor, could evaluate whether to believe the facts
of the statement or the witness’ trial testimony. In the
present case, Williams did not respond in any way to
any of the questions asked. He did not assert whether
he had or had not made the statement at issue, whether
he remembered the contents of the statement or the
events contained therein. He simply failed to provide
any testimony. Contrary to the position that the state
now takes on appeal, at trial, the prosecutor seemed
to understand that it was essential that Williams provide
verbal responses to questions. When Williams stated,
outside the presence of the jury, that he was not
‘‘answering no questions,’’ the prosecutor told him that
he could say that in response to each question he
was asked.
The utter lack of a verbal response to any questions
renders the present case wholly unlike the cases that
the trial court relied on in admitting Williams’ prior
statement. The trial court, in rendering its ruling, indi-
cated that the availability required under both Crawford
and Whelan was satisfied simply from the witness’ phys-
ical presence and the jury’s ability to assess his
demeanor and body language ‘‘in responding to ques-
tions.’’ (Emphasis added.) Williams, however, never
responded to a single question asked of him before
the jury, remaining silent throughout. In its analysis of
whether Williams’ refusal to answer questions rendered
him functionally unavailable to testify, the trial court
also appeared to conflate that question with whether
a prior statement could be considered inconsistent if
a witness failed to respond to questions.
It certainly is within the province of the jury in its
role as fact finder to assess the credibility of a witness’
answers to questions by assessing the witness’
demeanor on the stand, which would include how a
witness looks and acts while testifying. In the present
case, the trial court stated on the record its own obser-
vations of Williams while he was on the stand, including,
inter alia, that Williams had looked up at the ceiling,
looked down, raised his eyebrows, closed his eyes, and
‘‘sort of chuckled in his nonverbal expression.’’ The
court did not make any finding, however, that Williams
intended any of his gestures or body language to convey
a specific nonverbal response to a question that would
amount to a yes or no. We agree with the defendant
that the meaning of the court’s observations of Williams,
which were completely unconnected to verbal
responses to questions, is ambiguous and far too specu-
lative to be considered as the equivalent of testimony.
In other words, body language and demeanor are only
instructive in assessing the credibility of testimony actu-
ally given, and are not a substitute for verbal responses
or nonverbal responses intended to convey a substan-
tive response to a question.16
Our reasoning is consistent with observations made
by the United States Court of Appeals for the Second
Circuit in upholding a District Court’s ruling that it
did not implicate confrontation rights for a witness
to testify while wearing dark sunglasses. The Second
Circuit noted: ‘‘Even if we accept the idea, grounded
perhaps more on tradition than on empirical data,
that demeanor is a useful basis for assessing credibility,
the jurors had an entirely unimpaired opportunity to
assess the delivery of [the witness’] testimony, notice
any evident nervousness, and observe her body lan-
guage. Most important, they had a full opportunity to
combine these fully observable aspects of demeanor
with their consideration of the substance of her testi-
mony, assessing her opportunity to observe, the consis-
tency of her account, any hostile motive, and all the
other traditional bases for evaluating testimony.’’
(Emphasis added; footnotes omitted.) Morales v. Artuz,
281 F.3d 55, 61–62 (2d Cir.), cert. denied sub nom.
Morales v. Greiner, 537 U.S. 836, 123 S. Ct. 152, 154 L.
Ed. 2d 56 (2002).
In sum, because of Williams’ refusal to provide any
verbal responses to questions he was asked by both
the prosecutor and defense counsel, and absent any-
thing more than speculation as to the nonverbal man-
nerisms observed by the trial court, we conclude that
the defendant was deprived of an opportunity to cross-
examine Williams regarding his prior videotaped state-
ment to the police. Because he admittedly had no prior
opportunity to cross-examine Williams, the statement
was inadmissible under Crawford.17
II
Our conclusion that the court violated the defendant’s
rights under the confrontation clause by admitting Wil-
liams’ prior videotaped statement into evidence without
an opportunity for cross-examination does not end our
inquiry. We must also consider whether the defendant
was harmed by this error. See Delaware v. Van Arsdall,
475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)
(stating that confrontation clause violations are subject
to harmless error analysis). Because the error is consti-
tutional in magnitude, ‘‘the state has the burden of prov-
ing [that] the constitutional error was harmless beyond
a reasonable doubt.’’ (Internal quotation marks omit-
ted.) State v. Peeler, 271 Conn. 338, 384, 857 A.2d 808
(2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L.
Ed. 2d 110 (2005). We conclude that the state has failed
to meet that high burden in the present case.
In Williams’ videotaped statement, he identified the
defendant as the shooter. If the identification had been
the only inculpatory information conveyed by Williams
in his statement, its subsequent admission at trial likely
would have been harmless in light of the defendant’s
decision to admit that he shot the victim, but that he did
so in defense of his friend, Slim. In his prior statement,
however, Williams also provided information that, if
credited, significantly undercut the defendant’s claim
that he shot the victim in defense of Slim.
‘‘[General Statutes] § 53a-19 provides for two sepa-
rate, but related, defenses—self-defense and defense
of others . . . .’’ State v. Bryan, 307 Conn. 823, 833,
60 A.3d 246 (2013). ‘‘The defense of others, like self-
defense, is a justification defense. These defenses oper-
ate to exempt from punishment otherwise criminal con-
duct when the harm from such conduct is deemed to
be outweighed by the need to avoid an even greater
harm or to further a greater societal interest. . . .
Thus, conduct that is found to be justified is, under the
circumstances, not criminal.’’ (Internal quotation marks
omitted.) Id., 832–33. ‘‘Under . . . § 53a-19 (a), a per-
son can, under appropriate circumstances, justifiably
exercise . . . deadly force if he reasonably believes
both that [the] attacker is using or about to use deadly
force against [himself or a third person] and that deadly
force is necessary to repel such attack.’’ (Internal quota-
tion marks omitted.) Id., 835–36. Unlike an affirmative
defense, the defendant has no burden of persuasion for
a claim of defense of others, only a burden of produc-
tion. Id., 834. In other words, once the defendant has
adduced evidence to raise a reasonable doubt in the
mind of a rational juror as to whether he acted in
defense of another, the state has the burden to prove
beyond a reasonable doubt that the defendant’s actions
were unjustified. Id., 832; State v. Hall-Davis, 177 Conn.
App. 211, 224, 172 A.3d 222 (jury’s duty to ascertain
‘‘whether the state has met its burden of proving beyond
a reasonable doubt that the [crime] was not justified’’
[internal quotation marks omitted]), cert. denied, 327
Conn. 987, 175 A.3d 43 (2017).
The defendant testified before the jury that, at the
time he shot the victim, the victim was physically
assaulting his friend, Slim, that the victim was much
taller and significantly heavier than Slim, and that the
victim was armed with a handgun and was pistol-whip-
ping Slim. Significantly, aspects of the defendant’s
account were corroborated by other evidence. The
state’s medical examiner testified that the victim was
six feet, eight inches tall and weighed about 400 pounds.
Detective Michael Fiumidinisi, who initially investi-
gated the shooting, testified that Slim was six feet, two
inches tall, from which the jury could infer that he was
smaller than the victim. More importantly, Fiumidinisi
testified, without objection, about statements that the
victim made to him at the hospital, many of which
corroborated the defendant’s narrative of the events
just prior to the shooting. For example, the victim stated
to the detective that he had followed Slim when Slim
tried to leave the lobby, that he was trying to intimidate
Slim, and that he pulled him down the stairs and was
engaged in a fistfight with Slim when he was shot
from behind.
Williams’ videotaped statement to the police was the
only other evidence presented from an eyewitness of
the shooting. The significance of his statement cannot
be downplayed given that prior to that statement, there
was insufficient evidence to establish probable cause
for the defendant’s arrest. Williams told the police that
the defendant was part of the group that controlled
drug sales in Building 5. Williams indicated that the
defendant knew that the victim was selling fake drugs,
which adversely affected the defendant’s drug business.
It can be reasonably inferred from Williams’ statement
that this knowledge motivated the defendant to con-
front and ultimately shoot the victim. If the jury believed
Williams, this would have cast serious doubt on the
veracity of the defendant’s version of events, namely,
that he and Williams were initially attacked by the vic-
tim and his friends, and that he had shot the victim
only to prevent him from seriously injuring Slim, who
had come to their aid. Without Williams’ alternate ver-
sion of events, which put the defendant’s encounter
with the victim into a different context, the only evi-
dence before the jury would have been the account
given by the defendant, which, as we have set forth,
was corroborated by other evidence.
The state argues that the defendant’s testimony was
‘‘inconsistent and patently incredible.’’ Moreover, the
state contends that the defendant’s claimed justification
for using deadly force was ‘‘internally inconsistent, con-
trary to common sense and arguably legally insufficient,
even viewed in a light most favorable to him.’’ According
to the state, even if the jury credited the defendant’s
version of events, the jury was ‘‘unlikely to have found
that the scenario he posited, whereby neither he nor
any of his friends made any effort to assist Slim in
stopping the victim by using nonlethal force, justified
his actions.’’ In short, the state takes the position that
the defendant’s defense of others claim was so ‘‘fraught
with problems that the jury could not have overlooked’’
that any improper admission of Williams’ statement was
rendered harmless.
Although we acknowledge that, as the state suggests,
there were potential problems with the defendant’s the-
ory of defense and there is no guarantee that the jury
would have found the defendant not guilty on that basis
in the absence of the erroneous admission of Williams’
statement, the state’s arguments are insufficient to sat-
isfy its demanding burden of demonstrating harm-
lessness beyond a reasonable doubt. First, however
technically weak the defendant’s claim of defense of
others might have been, it was sufficiently supported
by both law and fact that the court agreed to give the
jury an instruction on the defense of others. The state
does not argue that the defendant was not entitled to
the instruction. Second, and more importantly, the
introduction of Williams’ statement provided the jury
with evidence of a clear and alternative motive on the
part of the defendant to shoot the victim that, if credited,
effectively obliterated any need for the jury to consider
the defendant’s justification defense.
Contrary to the position taken by the state, we con-
clude that it was reasonably likely that Williams’ state-
ment played a significant role in the jury’s decision
to disregard the defendant’s justification defense, and,
therefore, the improper admission of Williams’ state-
ment and its effect on the jury cannot be viewed as
harmless beyond a reasonable doubt.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
The sixth amendment to the United States constitution provides in rele-
vant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him . . . .’’ U.S. Const.,
amend. VI. ‘‘[T]he sixth amendment rights to confrontation and to compul-
sory process are made applicable to state prosecutions through the due
process clause of the fourteenth amendment.’’ (Internal quotation marks
omitted.) State v. Holley, 327 Conn. 576, 593, 175 A.3d 514 (2018).
2
The defendant also claims on appeal that the court improperly admitted
evidence of his gang affiliation and prior gun trafficking activities, which
the defendant characterizes as inadmissible evidence of uncharged miscon-
duct. See Conn. Code Evid. § 4-5 (a). Because we conclude that the defendant
is entitled to a new trial on his other claim of error, and it is speculative
whether the uncharged misconduct issue will arise again on retrial, we
decline to review this additional claim of error.
3
At trial, the state presented testimony from a police sergeant familiar
with gang activities at the Greene Homes housing complex. He explained
that the five Greene Homes buildings were controlled by several different
groups, and that violence often broke out if one group tried to sell drugs
to another group’s customers. He also explained that if someone sold fake
drugs in a building, it would result in both a loss of revenue and reputation
for the group that controlled the building, and that the group would seek
retribution against such an offender.
4
In addition to the murder, the state initially charged the defendant with
one count of criminal possession of a firearm in violation of General Statutes
§ 53a-217 and carrying a pistol without a permit in violation of General
Statutes § 29-35 (a). The state later chose not to pursue those additional
charges, filing a substitute information limited to the murder charge.
5
We note that this defense strategy was in place prior to trial and prior
to the admission of Williams’ statement identifying the defendant as the
person who shot the victim. The defendant submitted pretrial written
requests to charge that included an instruction on self-defense and the
defense of others.
6
General Statutes § 53a-19 (a) codifies defense of others and provides in
relevant part: ‘‘[A] person is justified in using reasonable physical force
upon another person to defend . . . a third person from what he reasonably
believes to be the use or imminent use of physical force, and he may use
such degree of force which he reasonably believes to be necessary for such
purpose; except that deadly physical force may not be used unless the actor
reasonably believes that such other person is (1) using or about to use
deadly physical force, or (2) inflicting or about to inflict great bodily harm.’’
7
The court stated: ‘‘Yesterday, I held Mr. Williams in contempt for his
entire conduct yesterday. I told him I’d be bringing him back today. I advised
him that, under Whelan, given the responses he had given yesterday, that—
and the inconsistencies, that, in all likelihood I would take a look at the
case law, but his statement to the police back on July 4th would likely be
shown to the jury, and he had a choice to answer questions or not answer
questions; and by not answering questions and his gestures and facial expres-
sions, that is a part of testimony for which the jury could assess whether
his position today, which is inconsistent from that of July 4, 2013, is the
truthful one or the statement he gave back on July 4th. They can assess all
of it; the questions he was posed both by the state and on cross-examination,
his expressions—and I’ll make a record of some of those in a moment.
‘‘But given that, Mr. Williams, I understand the predicament that you’re in.
‘‘But what I’m going to do is, in light of his conduct today, which was
respectful, I’ll vacate the contempt, and he’ll resume whatever time he has
and then he’s on his own, obviously, as far as recommendation. But I’ll
vacate the contempt.’’
8
The defendant in the present case has not raised a claim under the state
constitution. Nevertheless, we note that ‘‘our Supreme Court has interpreted
Connecticut’s confrontation clause to provide the same protections as its
federal counterpart. . . . [W]ith respect to the right to confrontation within
article first, § 8, of our state constitution, its language is nearly identical to
the confrontation clause in the United States constitution. The provisions
have a shared genesis in the common law. . . . [T]he principles of interpre-
tation for applying these clauses are identical.’’ (Citations omitted; internal
quotation marks omitted.) State v. Jones, 140 Conn. App. 455, 474–75, 59 A.3d
320 (2013) (rejecting claim that confrontation clause of our state constitution
provides greater protections than its federal counterpart), aff’d, 314 Conn.
410, 102 A.3d 694 (2014).
9
Section 8-2 (b) of the Connecticut Code of Evidence provides: ‘‘In crimi-
nal cases, hearsay statements that might otherwise be admissible under one
of the exceptions in this Article may be inadmissible if the admission of
such statements is in violation of the constitutional right of confrontation.’’
10
Hearsay statements that are nontestimonial in nature do not implicate
the confrontation clause; rather, their admissibility is governed solely by
the rules of evidence. See State v. Slater, 285 Conn. 162, 169–70, 939 A.2d
1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008).
Although Crawford’s failure to precisely define what it meant by ‘‘testimo-
nial’’ has resulted in an abundance of litigation on that subject; id., 171; the
parties in the present appeal agree that the videotaped police interview of
Williams was testimonial in nature and, thus, implicates Crawford. See
Crawford v. Washington, supra, 541 U.S. 52 (‘‘[s]tatements taken by police
officers in the course of interrogations are . . . testimonial under even a
narrow standard’’).
11
‘‘[T]he contours of the post-Crawford jurisprudence regarding unavail-
ability for Confrontation Clause purposes—especially as unavailability
relates to refusal to testify—are emerging.’’ State v. Kitt, 284 Neb. 611, 629,
823 N.W.2d 175 (2012).
12
We note that in Fowler v. Indiana, 829 N.E.2d 459 (Ind. 2005), cert.
denied, 547 U.S. 1193, 126 S. Ct. 2862, 165 L. Ed. 2d 898 (2006), the issue
before the Indiana Supreme Court was ‘‘whether a witness who is present
and takes the stand, but then refuses to testify with no valid claim of privilege,
is a witness who ‘appears for cross-examination’ (as that term is used in
Crawford) if no effort is made to compel the witness to respond.’’ Id., 465.
The court, in a scholarly and historical discussion of the issue, first noted
that, pre-Crawford, although a witness who asserted an inability to recall
any significant information was deemed available for cross-examination
under existing United State Supreme Court precedent, some courts neverthe-
less held that a witness who refused to answer any questions on the stand
was not available for cross-examination for confrontation purposes. Id.,
466–67. The court in Fowler concluded that it was unnecessary to decide
the confrontation issue post-Crawford because it concluded that the defen-
dant had forfeited any right to confrontation by making no effort to compel
the witness’ testimony. The court explained: ‘‘A refusal to answer, even
after a court order, arguably falls on the loss of memory side of the line.
Unlike a privilege that, as in Crawford, prevents the witness from taking
the stand, the refusing witness, like the amnesiac, is before the jury. The
basis for the refusal and the [witness’] demeanor can be taken into account
in evaluating the prior statement just as the loss of memory can be evaluated
by the trier of fact. On the other hand, a simple refusal to answer may be
viewed as barring the defendant’s access to meaningful cross-examination.
We believe we need not resolve this issue because here [the defendant] did
not seek an order compelling a response. . . . [W]e think a request for an
order directing the witness to respond is necessary to preserve a [c]onfronta-
tion [c]lause objection to prior statements by the witness.’’ Id., 467.
13
See Gibbons v. State, 248 Ga. 858, 862–64, 286 S.E.2d 717 (1982).
14
We note that because Barksdale was decided prior to the United States
Supreme Court’s decision in Crawford, the court, in analyzing whether the
defendant’s right to confrontation was violated, applied the former trustwor-
thiness standard set forth in Ohio v. Roberts, supra, 448 U.S. 56. The court’s
finding that the witness was not available for cross-examination, however,
necessarily would have led to the same result under Crawford’s new stan-
dard. Other courts have reached the same conclusion reached in Barksdale
under pre-Crawford jurisprudential standards. See, e.g., People v. Rios, 163
Cal. App. 3d 852, 864, 210 Cal. Rptr. 271 (1985) (‘‘we find the admission of
a prior statement made by a witness who stonewalls at trial and refuses to
answer any question on direct or cross-examination denies a defendant the
right to confrontation which contemplates a meaningful opportunity to
cross-examine the witness’’).
15
As the Pennsylvania Supreme Court noted in its decision, the juvenile
court took two recesses and made changes in the caregivers who sat with
the witness on the stand in an effort to make the witness more comfortable,
to no avail. In re N.C., supra, 629 Pa. 497.
16
The cases the state relies on to support its assertion that nonverbal
conduct by a witness properly could be viewed as testimony are limited to
instances of nodding and shaking of the head in lieu of a verbal response
of yes and no.
17
Our decision today is to be read as limited to the unique set of circum-
stances present in this case. We are cognizant of the reality that the state
has limited control over recalcitrant and noncooperating witnesses. Never-
theless, this concern is overborne by our duty to adhere to existing confronta-
tion jurisprudence, which seeks to ensure that only testimonial hearsay
evidence that has been subjected to a reasonable opportunity for cross-
examination is admitted against a defendant.