State v. Sinclair

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STATE OF CONNECTICUT v. CASEY SINCLAIR
(SC 19932)
Palmer, McDonald, Robinson, D’Auria,
Mullins and Kahn, Js.*
Syllabus
Convicted, after a jury trial, of the crime of possession of narcotics with
intent to sell by a person who is not drug-dependent, the defendant
appealed to the Appellate Court, claiming that the admission of hearsay
testimony used to establish that he was the de facto owner of a motor
vehicle in which the narcotics were found violated his constitutional
right to confront a witness against him and that certain improper state-
ments by the prosecutor during closing argument violated his constitu-
tional right to a fair trial. At the defendant’s trial, a police officer, G,
testified that he had conducted organized surveillance in a certain area
of Waterbury on the basis of an anonymous tip that there would be
drug activity there. G also testified that he had stopped a Jeep in which
the defendant was a passenger and his girlfriend, L, was the driver, it
having matched the description of the vehicle that had been provided
in the tip. According to G, the defendant appeared unusually nervous
as G approached the Jeep during the stop. A narcotics detection canine
subsequently alerted to the presence of narcotics in the Jeep. L testified
that, before the motor vehicle stop, the defendant had directed her to
drive the Jeep that he had driven to her home in New York, where L
lived, to a specific location in Waterbury, where he opened a hidden
compartment in the Jeep and removed two white packages. He then
walked to a black vehicle nearby, gave the packages to someone inside
that vehicle, and started walking back to the Jeep with money in his
hand. Before he got back to the Jeep, he noticed a police cruiser and
threw the money into a nearby bush. The defendant then returned to
the Jeep and directed L to drive to a nearby gas station with an attached
convenience store, where he made a cell phone call, asking an individual
to meet him so that he could retrieve the money. Surveillance video
from the gas station was introduced at trial and showed the same black
vehicle that L claimed had been involved in the drug transaction arriving
at the gas station moments later, the defendant entering the back seat
of that vehicle, and the vehicle driving away. The video also showed
that the black vehicle returned to the gas station approximately ten
minutes later and that the defendant then reentered the Jeep, which L
then drove away. The video then showed the driver of the black vehicle
exiting that vehicle and entering the convenience store. From that video,
G identified the driver of the black vehicle as a known heroin dealer
in Waterbury. G further testified that the Jeep was registered to an
individual in Bronx, New York, and, over defense counsel’s objection,
testified that a New York vehicle inspection record indicated that the
Jeep had been inspected at M Co., a business located in the Bronx
adjacent to the defendant’s business. G explained that certain of the
inspection information had been relayed to him by an individual in the
Waterbury Police Department, who had received that information from
an employee with the New York State Police. The Appellate Court
concluded that any violation of the defendant’s constitutional rights with
respect to the hearsay testimony regarding the inspection information
for the Jeep was harmless beyond a reasonable doubt and that three
acts of prosecutorial impropriety did not deprive the defendant of a fair
trial. On the granting of certification, the defendant appealed to this
court. Held:
1. This court concluded that the out-of-court statements to which G testified
in support of the fact that the Jeep was inspected at M Co. were hearsay
but were nontestimonial, the improper admission of that hearsay evi-
dence therefore was not of constitutional magnitude, and the defendant
did not meet his burden of proving that the evidentiary error was harmful:
a. Although it was undisputed that the out-of-court statements were
admitted for the truth of the matter asserted and, thus, constituted
hearsay, and that there were no applicable hearsay exceptions, the
statements were not testimonial in nature, as the underlying vehicle
inspection record was created solely for administrative or regulatory
purposes rather than for the purpose of proving some fact at trial, and
as the statements by the New York State Police and Waterbury Police
Department employees connecting the inspection record to M Co. did not
certify the inspection record’s substance or effect because an objective
declarant would not reasonably have believed that those statements
would be used for the purpose of creating a record for use at a later
criminal trial; accordingly, any error in the admission of the out-of-court
statements was not of constitutional magnitude.
b. The defendant failed to prove that any evidentiary error in the admis-
sion of the out-of-court statements to which G testified was harmful, as
the information conveyed through those statements was not of sufficient
consequence, when viewed in the light of the state’s relatively strong
case against the defendant, so as to persuade this court that it had a
significant effect on the jury’s verdict; additional evidence, other than the
defendant’s presence in the Jeep, linked him to the crime of possession
of narcotics with intent to sell, including L’s testimony regarding the
defendant’s actions, which the jury could have found credible, the defen-
dant’s inconsistent trial testimony explaining his presence in Waterbury
at the time of the drug transaction, the surveillance video, which
appeared to contradict the defendant’s testimony regarding his version
of the events, and G’s testimony that the individual who exited the black
vehicle was a known heroin dealer in Waterbury, that the defendant
appeared unusually nervous during the motor vehicle stop, that it was
common for drug dealers to register vehicles that they use for the sale
of drugs to another individual, as the defendant had done with the Jeep,
and that most heroin sold in Waterbury has its source in the Bronx,
where the defendant lived and owned a business.
2. The Appellate Court correctly concluded that, although three remarks by
the prosecutor during closing argument were improper, they did not
deprive the defendant of his due process right to a fair trial, there having
been no reasonable likelihood that the jury would have returned a
different verdict in the absence of those improprieties; the state’s case
was relatively strong, one of the prosecutor’s improper remarks was
invited by defense counsel’s comments during closing argument and
was an attempt to explain, in response to those comments, why L had
difficulty with defense counsel’s questions, the improprieties were not
frequent or particularly severe, as the defendant’s theory hinged on
attacking the credibility of L, and none of the improper remarks signifi-
cantly undercut that theory, defense counsel objected to only one of the
improper remarks, and, although two of the improper remarks related
to a critical issue in the case, the credibility of L versus the credibility
of the defendant, the comments only indirectly bolstered L’s credibility
or undercut the defendant’s credibility.
(One justice concurring separately)
Argued April 3, 2018—officially released July 9, 2019
Procedural History
Substitute information charging the defendant with
the crime of possession of narcotics with intent to sell
by a person who is not drug-dependent, brought to the
Superior Court in the judicial district of Waterbury and
tried to the jury before Crawford, J.; verdict and judg-
ment of guilty, from which the defendant appealed to
the Appellate Court, Lavine and Keller, Js., with Beach,
J., concurring in part and dissenting in part, which
affirmed the trial court’s judgment, and the defendant,
on the granting of certification, appealed to this
court. Affirmed.
John L. Cordani, Jr., assigned counsel, with whom,
on the brief, was Damian K. Gunningsmith, assigned
counsel, for the appellant (defendant).
Jennifer F. Miller, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Don E. Therkildsen, Jr., senior assistant state’s
attorney, for the appellee (state).
Opinion
McDONALD, J. Police officers discovered bricks of
heroin and a large sum of cash in a vehicle registered
to a third party in which the defendant, Casey Sinclair,
was the passenger. Following a jury trial at which the
driver of the vehicle testified against him, the defendant
was convicted of one count of possession of narcotics
with intent to sell by a person who is not drug-depen-
dent in violation of General Statutes (Rev. to 2013)
§ 21a-278 (b). The Appellate Court thereafter rejected
the defendant’s claim that he was entitled to a new trial
because (1) the admission of hearsay statements used
to establish that he was the de facto owner of the
vehicle—based on vehicle inspection records—violated
his constitutional right to confront a witness against
him, and (2) improper statements in the prosecutor’s
closing argument violated his constitutional right to a
fair trial. State v. Sinclair, 173 Conn. App. 1, 7, 24, 162
A.3d 43 (2017). We granted the defendant’s petition
for certification to appeal to this court. We affirm the
Appellate Court’s judgment, albeit under different rea-
soning on the first issue. We conclude that admission of
the hearsay statement was not an error of constitutional
dimension and that the defendant did not meet his bur-
den of proving that the evidentiary error was harmful.
I
At trial, the state proved its case against the defendant
largely though the testimony of three witnesses: the
defendant’s girlfriend, Winsome Lawrence, who was
the driver of the vehicle; Lawrence’s cousin, Charmaine
Henriques; and Sergeant Gary Angon of the Waterbury
Police Department. In addition, the state introduced
into evidence a surveillance video reflecting the defen-
dant’s conduct preceding his arrest.
Lawrence offered the following account of the events
leading to that arrest. The defendant lives in the Bronx,
New York, where he operates a used car business under
the name of Sinclair Enterprise. On multiple occasions
between October, 2012, and February, 2013, the defen-
dant and Lawrence drove to Connecticut for various
purposes. On each such occasion, the defendant drove
a tan Jeep to Lawrence’s house in Mount Vernon, New
York, and then directed Lawrence to drive while the
defendant sat in the passenger seat.1
On February 5, 2013, the defendant had Lawrence
drive the Jeep to Waterbury, purportedly to go to a
shopping mall. When they arrived in Waterbury, the
defendant instructed Lawrence to exit the highway and
eventually directed her to a side street, where he told
her to stop the car. Shortly thereafter, when a black
vehicle came toward the Jeep, the defendant directed
Lawrence to sound the horn. The driver of the black
vehicle made a U turn and parked a few cars ahead of
the Jeep. To Lawrence’s surprise, the defendant then
accessed a hidden compartment within the center con-
sole of the Jeep and removed two white packages of
drugs. He took the packages to the black vehicle, gave
them to someone inside, and walked back toward the
Jeep with money in hand. Just then a marked police
car slowly drove down the street toward the Jeep. When
the defendant got into the Jeep, Lawrence saw that he
no longer had the money in hand and asked him where
it was. The defendant said that he had thrown it into
a bush. He then directed Lawrence to drive to a nearby
gas station.
After they arrived at the gas station, the defendant
called someone on his cell phone and said, ‘‘Jay, come
and pick me up, I’m going for the money, I’m going to
pick up the money.’’ The defendant then told Lawrence
that he needed to get a bag, and he went into the gas
station convenience store. After he returned to the Jeep,
the same black vehicle involved in the earlier transac-
tion pulled into the gas station. The defendant exited
the Jeep and got into the black vehicle. The vehicle
departed and then returned soon afterward. When the
defendant returned to the Jeep, he had a black bag
filled with money, which he placed in the Jeep’s hidden
compartment. He then directed Lawrence to drive to
the mall in Waterbury.
Sergeant Angon offered the following account of the
circumstances that followed. Waterbury police orga-
nized surveillance of the area near the Brass Mill Mall
on the basis of an anonymous tip that the department
received earlier in the day regarding drug activity that
allegedly was going to occur that evening. At approxi-
mately 8 p.m., Angon saw a tan Jeep coming off the
exit ramp of Interstate 84 near the mall, which fit the
description of the vehicle that the department had been
given. He and his partner conducted a motor vehicle
stop. Upon approaching the Jeep, Angon observed that
the defendant appeared unusually nervous. When
Angon asked the defendant who owned the Jeep, the
defendant replied that it was his ‘‘friend’s.’’
A police detective from the department arrived with
a narcotics detection canine and conducted a detection
sweep of the Jeep. The dog alerted to the driver’s side
door and then to the center console. Angon and another
officer then inspected the center console and discov-
ered the hidden compartment beneath it. Therein they
found a black bag containing $12,248 and ten bricks of
what was later established to be heroin; each brick
comprised of approximately 1000 prepackaged bags of
heroin. The heroin had an estimated street value of
between $45,000 and $60,000. The cash recovered from
the compartment was consistent with the price of two
bricks of heroin. The police officers placed the defen-
dant and Lawrence under arrest.2
Henriques, Lawrence’s cousin, testified that the
defendant provided money to help pay Lawrence’s bond
after the defendant and Lawrence were arrested. She
further testified that when she met with the defendant
to ask for his help, he told her that he ‘‘was trying a
thing and [got] fucked.’’
In addition to this testimony, the jury viewed a sur-
veillance video from the gas station for the period at
issue. In the video, the defendant enters the conve-
nience store and returns to the Jeep, carrying a bever-
age; no bag is in view. A black vehicle then arrives,
and the defendant immediately gets into the rear right
passenger seat of that vehicle. The vehicle leaves and
then returns approximately ten minutes later. The
defendant gets back into the Jeep, and the Jeep departs.
The driver of the black vehicle exits that vehicle and
enters the convenience store. Angon identified that per-
son, Terence Saunders, as a heroin dealer in Waterbury.
Angon also testified that most of the heroin sold in
Waterbury comes from the Bronx.
In addition to this evidence regarding the incident in
question, the state attempted to demonstrate that the
defendant was the de facto owner of the Jeep. Angon
testified that he had run a law enforcement query, which
revealed that the Jeep was registered to a third party,
Victor A. Manana, at an address in the Bronx.3 Angon
testified that, in his experience, drug dealers commonly
register their vehicles in someone else’s name and have
someone else drive, so that if they come in contact with
the police, they are not directly linked to the vehicle.
Over the defendant’s objections, Angon then was per-
mitted to testify that the Jeep had been inspected at
Manny’s Auto. He testified that a Google search
revealed an address for Manny’s Auto and a photograph
of that location, which showed Manny’s Auto to be
located adjacent to Sinclair Enterprise, the defendant’s
used car business. Angon explained that certain inspec-
tion information had been elicited by someone in his
department from the New York State Police Department.
The defendant testified on his own behalf. According
to the defendant, the tan Jeep belonged to Lawrence,
and she was the ‘‘friend’’ to whom he was referring
when responding to Angon’s question of who owned the
Jeep. He claimed that he had accompanied Lawrence
to Connecticut on only one other occasion prior to this
incident and was unaware that there were drugs in the
Jeep. He admitted that he had asked Lawrence to stop
at the gas station but claimed that it was for the purpose
of meeting someone named Paul, who was interested
in selling a vehicle to the defendant. According to the
defendant, Paul was a passenger in the black vehicle
that came to the gas station. The defendant joined Paul
in the black vehicle, along with two individuals not
known to the defendant, and drove to look at the vehicle
Paul wished to sell. When they could not agree on a
price, they returned to the gas station. Lawrence then
drove the Jeep toward the mall.
The defendant’s inculpation of Lawrence was lent
marginal support by DNA testing performed by the state
forensic laboratory on the packaging of the heroin and
a strap used as a component of the hidden compartment
in the Jeep. The defendant was excluded as a contribu-
tor to any of the DNA samples they were able to recover.
Lawrence was excluded as a contributor to all but one
sample, which had insufficient material to rule her out
as a contributor.
The jury found the defendant guilty of the charge of
possession of narcotics with intent to sell by a person
who is not drug-dependent. The court subsequently sen-
tenced him to an eight year term of imprisonment.
The defendant appealed from the trial court’s judg-
ment to the Appellate Court, claiming that (1) the admis-
sion of Angon’s hearsay testimony concerning the
Jeep’s inspection site violated the defendant’s rights
under the confrontation clause of the sixth amendment
to the United States constitution, and (2) numerous
improprieties during the prosecutor’s closing argument
violated the defendant’s due process right to a fair trial.4
A divided Appellate Court affirmed the judgment of
conviction. State v. Sinclair, supra, 173 Conn. App. 28.
The majority held that, even if it were to assume that
the admission of the inspection testimony was a con-
frontation clause violation, any such error would be
harmless beyond a reasonable doubt. Id., 16. The major-
ity further held that, although a few of the prosecutor’s
comments during closing argument were improper,
those improprieties did not deprive the defendant of a
fair trial. Id., 24. Judge Beach dissented in part, conclud-
ing that the admission of the inspection testimony was
in fact a violation of the confrontation clause and that
this error was not harmless beyond a reasonable doubt.5
Id., 28–32.
This court granted the defendant’s petition for certifi-
cation to appeal, initially limited to the issues of
whether the Appellate Court correctly concluded that
any ‘‘presumed violation’’ of the defendant’s confronta-
tion clause rights was harmless beyond a reasonable
doubt and that acts of prosecutorial impropriety did
not deprive the defendant of a fair trial. State v. Sinclair,
326 Conn. 904, 163 A.3d 1205 (2017). In his brief to this
court, the defendant addressed the threshold issue that
the Appellate Court majority assumed but did not
decide, asserting that the improperly admitted evidence
amounted to constitutional, not merely evidentiary,
error. In its responsive brief, the state asserted that this
issue is outside the scope of the certified question and
declined to address it. At oral argument, the state sug-
gested that if we were to disagree with the Appellate
Court’s assessment of harm, that court could address
the substantive issue on remand.
This court subsequently issued an order directing
the parties to file supplemental briefs addressing the
following issues: (1) ‘‘Did the evidence establishing that
the Jeep had been inspected at a repair shop located
adjacent to the defendant’s business constitute testimo-
nial hearsay for purposes of Crawford v. Washington,
541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)?
See United States v. Mendez, 514 F.3d 1035, 1045 (10th
Cir. 2008) (discussing public records under Crawford).’’
And (2) ‘‘[i]f not, can the defendant meet his burden of
proving that admission of this evidence was harmful
error?’’
II
We begin with the defendant’s challenge to the admis-
sion of Angon’s testimony regarding the Jeep’s inspec-
tion. The defendant claims that this evidence constituted
testimonial hearsay admitted in violation of his constitu-
tional rights. The defendant further contends that the
improper admission of this evidence was harmful, irre-
spective of whether it is reviewed under the standard of
harm for constitutional error or evidentiary error. The
state concedes that the inspection testimony was hear-
say but contends that it is nontestimonial. The state fur-
ther contends that its erroneous admission was not
harmful, no matter what standard is applied.
Whether the admission of the contested testimony was
constitutional error or merely evidentiary error will dic-
tate which party bears the burden of proof as to harm
and the extent of that burden. ‘‘[I]f an [evidentiary]
impropriety is of constitutional proportions, the state
bears the burden of proving that the error was harmless
beyond a reasonable doubt. . . . When an improper
evidentiary ruling is not constitutional in nature, the
defendant bears the burden of demonstrating that the
error was harmful.’’ (Internal quotation marks omitted.)
State v. Osimanti, 299 Conn. 1, 16, 6 A.3d 790 (2010).
On the basis of the record before this court, we are
compelled to conclude that the statements regarding
the inspection were nontestimonial. We further con-
clude that the improper admission of the hearsay evi-
dence was not harmful.
A
The following testimony regarding the Jeep was elic-
ited from Angon on direct examination:
‘‘[The Prosecutor]: And showing you what’s been
marked State’s Exhibit 4—I’ll show you on—up on the
screen—let me just zoom in there for you. Could you
tell the jury what you’re seeing here?
‘‘[Angon]: That is a printout from the law enforcement
query of the vehicle registration number, New York F
X L 3 7 5 4, which was the license plate on the Jeep
Liberty. And it shows that it was registered to a Victor
A. Manana, 1178 Washington Avenue, 5C, Bronx,
New York.
***
‘‘[The Prosecutor]: During your investigation, did you
. . . determine if there were any inspections on that
vehicle?
‘‘[Angon]: Yes, there was a—for a vehicle to be regis-
tered in New York, New York state requires a vehicle
inspection. I’m not sure exactly what the period
between inspections is, but they have periodic inspec-
tions where they have to meet certain standards in order
for the vehicle to be registered and remain registered
in the state.
‘‘[The Prosecutor]: And where was that done?
[Objections raised and overruled.]
‘‘[The Prosecutor]: Where was the inspection done?
‘‘[Angon]: The inspection was done at Manny Auto
at 3 5 3 0—well, I’m not sure exact—I know it was a
3000 block of Webster Avenue in the Bronx, New York.
‘‘[The Prosecutor]: And there’s a—is there a business
located adjacent to the Manny’s Auto?
‘‘[Angon]: Manny Auto is actually part of a fenced in
lot that has one large business name over the front of
it that I just got from a Google search of that address.6
‘‘[The Prosecutor]: Do you know the name of that
business?
[Objections raised and overruled.]7
‘‘[The Prosecutor]: What business is it next to?
‘‘[Angon]: Sinclair Enterprise.’’
Angon’s source for the inspection information
became clearer when the following testimony was elic-
ited on cross-examination:
‘‘[Defense Counsel]: [B]y the way, the registration you
can get that information from the police department,
correct, from—
‘‘[Angon]: From—
‘‘[Defense Counsel]: your police computers.
‘‘[Angon]: Yes, I can run a—the law enforcement
query of a license plate. So I can punch the numbers
in on a computer terminal, and they’ll give me the regis-
tration.
‘‘[Defense Counsel]: Okay. And you can get an official
documentation as to registration, things like that?
‘‘[Angon]: Yes.
‘‘[Defense Counsel]: Okay. And you’ve also now indi-
cated on direct examination that you ran the—some
sort of inspection record of the vehicle also.
‘‘[Angon]: My office contacted [the] New York State
Police to see if they could translate, for lack of a better
word, a lot of the information that’s on the printout,
because different states have different ways of
recording things. One of the numbers on the New York
query is an inspection number that gets issued because
that’s part of them getting registrations for the car.
And then whoever issues that inspection number has
a number.8
‘‘[Defense Counsel]: And then when was that
inquiry made?
‘‘[Angon]: Sometime in the last two days.’’ (Emphasis
added; footnotes added.)
Defense counsel later moved to have Angon’s testi-
mony relating to the inspection stricken from the
record. He argued that cross-examination had revealed
that Angon did not obtain the information firsthand but,
rather, secondhand from an unidentified person. As
such, he submitted that this testimony was double hear-
say ‘‘at best’’ and that its admission violated the defen-
dant’s rights under Crawford to confront witnesses
against him. The trial court denied the motion, stating
that the jury could determine what weight to give the
testimony.
We begin our analysis of the importance of Angon’s
testimony with the observation that there are three
layers of potential hearsay imbedded in it: (1) the New
York inspection record itself; (2) the statement by a
New York State Police employee relaying information
in that record to a Waterbury Police Department
employee; and (3) the statement by the Waterbury
police employee relaying this information to Angon.
There is no dispute that these out-of-court statements
were admitted for the truth of the matter asserted and
therefore constitute hearsay.9 See Conn. Code Evid.
§ 8-1 (3); see also Doe v. Hartford Roman Catholic
Diocesan Corp., 317 Conn. 357, 390, 119 A.3d 462 (2015)
(‘‘[s]uch statements generally are inadmissible unless
they fall within an exception to the hearsay rule’’). Each
layer of hearsay would have to independently satisfy
an exception to the hearsay rule in order to be admissi-
ble. See Conn. Code Evid. § 8-7.
Our concern in the present case is not, however,
whether there are applicable hearsay exceptions to
avoid evidentiary error; the state concedes there are
not. Rather, our concern is that, ‘‘[i]n the context of a
criminal trial . . . the admission of a hearsay state-
ment against a defendant is further limited by the con-
frontation clause of the sixth amendment.’’ State v.
Smith, 289 Conn. 598, 618, 960 A.2d 993 (2008). The
confrontation clause provides that, ‘‘[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him . . . .’’
U.S. Const., amend. VI.10
‘‘Under Crawford v. Washington, supra, 541 U.S. 59,
hearsay statements of an unavailable witness that are
testimonial in nature may be admitted in accordance
with the confrontation clause only if the defendant pre-
viously has had the opportunity to cross-examine the
unavailable witness. Nontestimonial statements, how-
ever, are not subject to the confrontation clause and
may be admitted under state rules of evidence. Davis
v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165
L. Ed. 2d 224 (2006). Thus, the threshold inquiries that
determine the nature of the claim are whether the state-
ment was hearsay, and if so, whether the statement
was testimonial in nature, questions of law over which
our review is plenary.’’ State v. Smith, supra, 289
Conn. 618–19.
‘‘[A] testimonial statement is typically [a] solemn dec-
laration or affirmation made for the purpose of estab-
lishing or proving some fact. . . . Crawford v.
Washington, supra, 541 U.S. 51. Although the United
States Supreme Court did not provide 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 testi-
mony or its functional equivalent—that is, material such
as affidavits, custodial examinations, prior testimony
that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would rea-
sonably expect to be used prosecutorially . . . [2]
extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions,
prior testimony, or confessions [and] . . . [3] state-
ments that were made under circumstances which
would lead an objective witness reasonably to believe
that the statement would be available for use at a later
trial . . . . Id., 51–52.’’ (Emphasis added; internal quo-
tation marks omitted.) State v. Smith, supra, 289 Conn.
622–23. It is this third category into which the defendant
contends that Angon’s testimony falls.
In Davis v. Washington, supra, 547 U.S. 822, the
United States Supreme Court elaborated on the third
category, applying a ‘‘primary purpose’’ test to distin-
guish between testimonial and nontestimonial state-
ments made to police officials. In the context of
considering hearsay statements made to a 911 operator,
the court in Davis held: ‘‘Statements are nontestimonial
when made in the course of police interrogation under
circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assis-
tance to meet an ongoing emergency. They are testimo-
nial when the circumstances objectively indicate that
there is no such ongoing emergency, and that the pri-
mary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution.’’11 (Emphasis added.) Id.
‘‘In State v. Slater, [285 Conn. 162, 172 n.8, 939 A.2d
1105 (2008), this court] 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 determin-
ing whether out-of-court statements are testimonial,
namely, whether the circumstances would lead an
objective witness reasonably to believe that the state-
ments would later be used in a prosecution.’ ’’ State v.
Smith, supra, 289 Conn. 623–24.
Crawford’s progeny indicates that a significant factor
in ascertaining whether the primary purpose of the com-
munication is testimonial, i.e., whether the declarant
reasonably would believe that the statement would be
used in a subsequent prosecution, is the relative formal-
ity or informality of the manner in which the statement
was given or elicited. See, e.g., Bullcoming v. New Mex-
ico, 564 U.S. 647, 665, 131 S. Ct. 2705, 180 L. Ed. 2d 610
(2011) (concluding that ‘‘the formalities attending the
‘report of blood alcohol analysis’ are more than ade-
quate to qualify [the declarant’s] assertions as testimo-
nial’’ because declarant’s certificate was ‘‘ ‘formalized’
in a signed document,’’ was ‘‘headed a ‘report,’ ’’ and
report form refers to courts’ rules that provide for
admission of this type of report); id., 671 (Sotomayor,
J., concurring in part) (‘‘The formality inherent in the
certification further suggests its evidentiary purpose.
Although [f]ormality is not the sole touchstone of our
primary purpose inquiry, a statement’s formality or
informality can shed light on whether a particular state-
ment has a primary purpose of use at trial.’’ [Internal
quotation marks omitted.]); Michigan v. Bryant, 562
U.S. 344, 366, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011)
(concluding that Michigan Supreme Court did not suffi-
ciently account for importance of informality in encoun-
ter between victim and police in assessing whether
statement was testimonial but acknowledging that
‘‘informality does not necessarily indicate . . . the lack
of testimonial intent’’); Melendez–Diaz v. Massachu-
setts, 557 U.S. 305, 308, 310, 129 S. Ct. 2527, 174 L. Ed.
2d 314 (2009) (‘‘certificates of analysis’’ completed by
employees of State Laboratory Institute of the Massa-
chusetts Department of Public Health were testimonial
because they were ‘‘incontrovertibly . . . solemn dec-
laration[s] or affirmation[s] made for the purpose of
establishing or proving some fact’’ [internal quotation
marks omitted]); Melendez–Diaz v. Massachusetts,
supra, 310–11 (‘‘ ‘certificates’ are functionally identical
to live, in-court testimony, doing ‘precisely what a wit-
ness does on direct examination’ ’’); Davis v. Washing-
ton, supra, 547 U.S. 827 (emphasizing difference in level
of formality between interviews in case before it and
in Crawford); Davis v. Washington, supra, 830 (deter-
mining that act of separating declarant from defendant
in order to conduct investigation was ‘‘formal enough’’
under circumstances to render statement testimonial);
United States v. Smalls, 605 F.3d 765, 778 (10th Cir.
2010) (‘‘[s]ynthesizing Crawford and Davis, we might
today formulate a definition of a testimonial statement
which reads: a formal declaration made by the declarant
that, when objectively considered, indicates the primary
purpose for which the declaration was made was that
of establishing or proving some fact potentially relevant
to a criminal prosecution’’).
The United States Supreme Court’s most recent foray
into confrontation clause jurisprudence, however, calls
into question the continuing vitality of the primary pur-
pose test, at least as articulated in Davis. In Williams
v. Illinois, 567 U.S. 50, 132 S. Ct. 2221, 183 L. Ed. 2d
89 (2012), an expert had testified that a DNA profile
produced by an outside laboratory matched a profile
produced by the state police laboratory using a sample
of the petitioner’s blood. Id., 56 (plurality opinion). Five
justices agreed that the profile relied on by the expert
was nontestimonial, but the fifth justice rejected the
plurality’s ‘‘flawed analysis’’; id., 104 (Thomas, J., con-
curring in the judgment); as did the four dissenting
justices.12 Id., 135–38 (Kagan, J., dissenting). Justice
Alito, writing for the plurality, reasoned that ‘‘[t]he
abuses that the court has identified as prompting the
adoption of the [c]onfrontation [c]lause shared the fol-
lowing two characteristics: (1) [t]hey involved out-of-
court statements having the primary purpose of accus-
ing a targeted individual of engaging in criminal con-
duct and (2) they involved formalized statements such
as affidavits, depositions, prior testimony, or confes-
sions.’’ (Emphasis added.) Id., 82. The plurality noted
that all but one of the court’s cases involving testimonial
hearsay post-Crawford had both characteristics, the
one exception having only the second characteristic.
Id., 82–83. The plurality reasoned that the DNA profile
at issue lacked the first characteristic because no one
at the laboratory producing it could know that it would
inculpate the petitioner, let alone any other person who
might currently be in a law enforcement database. Id.,
84–85. ‘‘Under these circumstances, there was no pros-
pect of fabrication and no incentive to produce anything
other than a scientifically sound and reliable profile.’’
(Internal quotation marks omitted.) Id., 85 (plurality
opinion); see also id., 86–87, 89 (Breyer, J., concurring)
(agreeing with plurality’s reasoning but emphasizing
administrative burden of requiring every person work-
ing on reports to testify).
In his concurrence, Justice Thomas reiterated his
previously expressed view that the confrontation clause
only ‘‘reaches formalized testimonial materials, such
as depositions, affidavits, and prior testimony, or
statements resulting from formalized dialogue, such as
custodial interrogation.’’ (Internal quotation marks
omitted.) Id., 111. He reasoned that the primary purpose
test, as originally articulated in Davis, was a necessary,
but not sufficient, criterion to render a statement testi-
monial because a statement may serve more than one
purpose. See id., 114 (Thomas, J., concurring in the
judgment) (‘‘Statements to police are often made both
to resolve an ongoing emergency and to establish facts
about a crime for potential prosecution. The primary
purpose test gives courts no principled way to assign
primacy to one of those purposes.’’ [Emphasis omit-
ted.]). He noted that ‘‘[t]he shortcomings of the original
primary purpose test pale in comparison, however, to
those plaguing the reformulated version that the plural-
ity suggests today.’’ Id. (Thomas, J., concurring in the
judgment). Both he and the four dissenting justices
agreed that a requirement that the statement must have
the primary purpose of accusing a targeted individual
did not derive from either the text or the history of the
confrontation clause. Id. (Thomas, J., concurring in the
judgment); id., 135 (Kagan, J., dissenting).
Justice Kagan, writing for the four dissenting justices,
argued that application of the court’s precedent com-
pelled the conclusion that the DNA profile in the labora-
tory report was testimonial hearsay, because it was ‘‘a
statement [that] was made for the primary purpose of
establishing ‘past events potentially relevant to later
criminal prosecution’—in other words, for the purpose
of providing evidence.’’ Id., 135. With regard to Justice
Thomas’ view that the laboratory report did not qualify
as testimonial because it was neither a sworn nor certi-
fied declaration of fact, Justice Kagan observed that
there was no material difference between the degree
of formality in the reports at issue and those in its prior
cases deemed testimonial: ‘‘Each report is an official
and signed record of laboratory test results, meant to
establish a certain set of facts in legal proceedings.’’
Id., 139. Justice Kagan noted that, in those prior cases,
‘‘a law enforcement officer provided evidence to a state
laboratory assisting in police investigations,’’ ‘‘the ana-
lyst tested the evidence and prepared a certificate con-
cerning the result[s],’’ and ‘‘the certificate was
formalized in a signed document . . . headed a report.
. . . That was enough.’’ (Citation omitted; internal quo-
tation marks omitted.) Id.
In considering what to make of Williams, we are
mindful of the Supreme Court’s direction that, ‘‘[w]hen
a fragmented [c]ourt decides a case and no single ratio-
nale explaining the result enjoys the assent of five [j]us-
tices, the holding of the [c]ourt may be viewed as that
position taken by those members who concurred in the
judgments on the narrowest grounds . . . .’’ (Internal
quotation marks omitted.) Marks v. United States, 430
U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977). But
see Grutter v. Bollinger, 539 U.S. 306, 325, 123 S. Ct.
2325, 156 L. Ed. 2d 304 (2003) (acknowledging that there
are cases in which Marks test ‘‘is more easily stated
than applied to the various opinions supporting the
result’’ [internal quotation marks omitted]). The prob-
lem with Williams, as the Second Circuit Court of
Appeals has aptly observed, is that the court made it
impossible to identify the narrowest ground because
the analyses of the various opinions are irreconcilable.
See United States v. James, 712 F.3d 79, 95 (2d Cir.
2013), cert. denied, 572 U.S. 1134, 134 S. Ct. 2660, 189
L. Ed. 2d 208 (2014); see also Williams v. Illinois, supra,
567 U.S. 141 (Kagan, J., dissenting) (‘‘[t]he five [j]ustices
who control the outcome of today’s case agree on very
little’’ and ‘‘have left significant confusion in their
wake’’). Like the Second Circuit, we ‘‘think it sufficient
to conclude that we must rely on Supreme Court prece-
dent before Williams to the effect that a statement
triggers the protections of the [c]onfrontation [c]lause
when it is made with the primary purpose of creating
a record for use at a later criminal trial.’’ United States
v. James, supra, 712 F.3d 95–96; see also State v.
Lebrick, 179 Conn. App. 221, 244, 178 A.3d 1064 (‘‘[g]iven
that no readily applicable rationale for the court’s hold-
ing in Williams obtained the approval of a majority of
the justices, its precedential value seems, at best, to be
confined to the distinct factual scenario at issue in that
case’’), cert. granted, 328 Conn. 912, 179 A.3d 218 (2018).
The one thread of Williams that is consistent with the
court’s earlier precedent is that there is agreement
among all of the justices that the formality attendant
to the making of the statement must be considered.
With this framework in mind, we turn to Angon’s
hearsay testimony in the present case. We begin with
the New York vehicle inspection record, which purport-
edly indicated that Manny’s Auto had been assigned the
inspection number revealed by Angon’s law enforce-
ment query. Public records, such as the inspection
records at issue, also are governed by the primary pur-
pose test. The United States Supreme Court has
explained that ‘‘[b]usiness and public records are gener-
ally admissible absent confrontation not because they
qualify under an exception to the hearsay rules, but
because—having been created for the administration
of an entity’s affairs and not for the purpose of establish-
ing or proving some fact at trial—they are not testimo-
nial.’’ Melendez–Diaz v. Massachusetts, supra, 557 U.S.
324; see also United States v. Mendez, 514 F.3d 1035,
1044–1045 (10th Cir.) (‘‘As a public record, the [Immi-
gration and Customs Enforcement] Central Index Sys-
tem is not testimonial. . . . Where records are not
prepared for litigation or criminal prosecution, but
rather administrative and regulatory purposes, the ‘prin-
cipal evil at which the [c]onfrontation [c]lause was
directed’ is not implicated.’’ [Citations omitted.]), cert.
denied, 553 U.S. 1044, 128 S. Ct. 2455, 171 L. Ed. 2d 250
(2008); United States v. Vidrio-Osuna, 198 Fed. Appx.
582, 584 (9th Cir. 2006) (admission of record that is
‘‘ ‘routine, objective, cataloging of an unambiguous fac-
tual matter,’ ’’ such as birth certificate, is not testimo-
nial). Nonetheless, such records will be deemed
testimonial if they were created for the purpose of
establishing or proving some fact at trial. See, e.g., Mel-
endez–Diaz v. Massachusetts, supra, 324. Compare
United States v. Feliz, 467 F.3d 227, 236–37 (2d Cir.
2006) (concluding that autopsy report is public record
and is not testimonial even though medical examiner
may understand that report may be available for use
at trial), cert. denied sub nom. Erbo v. United States,
549 U.S. 1238, 127 S. Ct. 1323, 167 L. Ed. 2d 132 (2007),
with United States v. James, supra, 712 F.3d 99, 101–102
(concluding that court must consider circumstances of
death to determine whether primary purpose of autopsy
was for use in criminal prosecution).
State vehicle inspection records are created solely
for administrative or regulatory purposes. Therefore,
the information in the New York inspection record was
not testimonial hearsay. See footnote 9 of this opinion
(acknowledging possibility that inspection record was
not hearsay).
The fact that the underlying record is nontestimonial
does not, however, end our inquiry. Just as every layer
of hearsay must independently satisfy a hearsay excep-
tion to be admissible, a subsequent recitation of a non-
testimonial statement may itself be testimonial. See,
e.g., United States v. Brooks, 772 F.3d 1161, 1167–68 (9th
Cir. 2014) (court determined that there was Crawford
violation when postal inspector testified that postal
supervisor provided inspector with tracking number
and mailing information on package, which was used
to prove that it was same package that defendant had
mailed earlier that day, when supervisor would have
understood that purpose of inquiry was investigative
and supervisor’s statement reported past event); United
States v. Bustamante, 687 F.3d 1190, 1194 (9th Cir.
2012) (court determined that there was Crawford viola-
tion when affidavit of official from Philippines’ Office
of Civil Registrar General was admitted, which attested
that defendant’s birth record indicated that he was born
in Philippines, to prove that defendant was not United
States citizen for purposes of various criminal charges);
United States v. Weiland, 420 F.3d 1062, 1076–1077 (9th
Cir. 2005) (court considered whether Crawford was
violated by admission of documents in ‘‘ ‘penitentiary
packet,’ ’’ which ‘‘incorporate two layers of hearsay,
and, correspondingly, two potential [c]onfrontation
[c]lause problems: [1] the records themselves, and [2]
the statements of [the Oklahoma records custodian] and
the Secretary of State . . . providing the foundation
to establish their authenticity,’’ and then considered
whether second layer was testimonial after concluding
that first layer was public record and nontestimonial),
cert. denied, 547 U.S. 1114, 126 S. Ct. 1911, 164 L. Ed.
2d 667 (2006); see also Tapke v. Brunsman, 565 Fed.
Appx. 430, 435, 436 (6th Cir.) (court considered whether
Crawford was violated by admission of social worker’s
report regarding child sexual abuse, which contained
double hearsay, and determined that first level of hear-
say, child’s statement, was nontestimonial because pri-
mary purpose of interview was to assist physicians in
conducting medical examination, and then examined
second level of hearsay, social worker’s report
recounting child’s statement, to determine whether it
was testimonial), cert. denied sub nom. Tapke v. Moore,
U.S. , 135 S. Ct. 486, 190 L. Ed. 2d 367 (2014);
Jones v. Basinger, 635 F.3d 1030, 1040–1043 (7th Cir.
2011) (concluding that confrontation clause was vio-
lated by admission of police officer’s testimony because
second layer of hearsay was testimonial, when officer
testified that informant stated that his brother had con-
fessed to him that he, along with defendant and others,
had committed murder and that defendant’s need for
money was motive).
The United States Supreme Court has distinguished
between a statement by a custodian ‘‘certify[ing] to the
correctness of a copy of a record kept in his office,’’
which historically has been admissible and thus deemed
nontestimonial, and a declarant’s statement ‘‘furnish-
[ing], as evidence for the trial of a lawsuit, his interpreta-
tion of what the record contains or shows, or to certify
to its substance or effect,’’ which is testimonial. (Inter-
nal quotation marks omitted.) Melendez–Diaz v. Massa-
chusetts, supra, 557 U.S. 322. If a nontestimonial record
is used to create a new record for the purpose of provid-
ing evidence for a criminal prosecution, that new record
is testimonial. See id., 322–23 (‘‘[a] clerk could by affida-
vit authenticate or provide a copy of an otherwise
admissible record, but could not do what the analysts
did here: create a record for the sole purpose of provid-
ing evidence against a defendant’’ [emphasis omitted]);
see also United States v. Bustamante, supra, 687 F.3d
1194 (The court explained why an affidavit from an
official attesting that the defendant’s birth record indi-
cated that he was born in the Philippines, offered to
prove that the defendant was not a United States citizen
for purposes of various criminal charges, was testimo-
nial: The affidavit was created for the purpose of an
investigation into the defendant’s citizenship and was
‘‘made under circumstances which would lead an objec-
tive witness reasonably to believe that the statement
would be available for use at a later trial. . . . Rather
than simply authenticating an existing [nontestimonial]
record, [the official] created a new record for the pur-
pose of providing evidence against [the defendant].’’
[Citations omitted.]).
The statements in the present case by the New York
State Police and Waterbury Police Department employ-
ees plainly do not certify to the correctness of the New
York inspection record (or a copy thereof). Nor do
they interpret what the record contains or shows. The
question is whether the statements certify the record’s
substance or effect.
We observe that the informal manner in which the
information was elicited and communicated bears no
indicia of a ‘‘ ‘solemn declaration or affirmation made
for the purpose of establishing or proving some fact.’ ’’
Crawford v. Washington, supra, 541 U.S. 51. In other
words, the declarant did not take the information in
the public record and create a new record for use at
trial. The information was obtained through a telephone
call. There is no indication that the call was recorded
(e.g., a 911 call) or that the information was memorial-
ized in any manner. There is nothing in the record to
indicate whether the identity (name and position) of the
declarant was elicited or offered. Nor does the record
indicate how the information was in turn conveyed by
the Waterbury Police Department employee to Angon.13
Although the pre-Williams case law indicates that a
lack of formality will not necessarily deprive a state-
ment of its testimonial character, Williams suggests
that this fact would be dispositive. Even if we were
permitted to look beyond the casual manner in which
these statements were elicited and conveyed, Craw-
ford’s first principles require proof that an objective
declarant reasonably would believe that his or her state-
ment would be used for prosecutorial purposes. Such
proof is not evident in the present record. Neither the
substance nor the form of the statements at issue objec-
tively demonstrates that they were made with the pri-
mary purpose of creating a record for use at a later
criminal trial. The inspection information conveyed
(i.e., inspection number X is assigned to Manny’s Auto)
is neutral. It bears no overt relevance to any criminal
activity or even any individual. There is no basis in the
record to infer that the New York State Police employee
was informed about the potential relevance of this infor-
mation to a criminal prosecution. See Gregor v. Frank-
lin, 466 Fed. Appx. 709, 711 (10th Cir. 2012) (The court,
in determining that it was reasonable to conclude that,
because the declarant’s statement to the officer did not
inculpate the defendant in criminal activity, its introduc-
tion did not amount to a Crawford violation, noted that
‘‘not every statement made in response to an interroga-
tion is testimonial for purposes of confrontation clause
analysis . . . . Rather, the emphasis must be on the
responses generated. . . . Crawford itself deals with
witnesses against the accused bearing inculpatory testi-
monial statements. [Citations omitted; internal quota-
tion marks omitted.]). In fact, the information was not
even necessarily relevant to the defendant’s case. It
became relevant only because the name associated with
the number subsequently was linked by Angon to an
address that happened to be in close proximity to the
defendant’s business. Our review of Crawford cases
reveals no instance in which such neutral information
was deemed testimonial.
The cases on which the defendant relies, as well
as others revealed by our independent research, are
consistent with our conclusion in the present case that
the statements relaying the information in the inspec-
tion record are nontestimonial hearsay. By contrast, in
each such case, the manner in which the information
was conveyed or elicited provided an objective indica-
tion that the declarant would have believed that his or
her statement could be used in a criminal prosecution.
See United States v. London, 746 Fed. Appx. 317, 319–20
(5th Cir. 2018) (notarized documents containing state-
ments from Assistant Executive Secretary at Federal
Deposit Insurance Corporation [FDIC] regarding bank’s
FDIC status in relation to query indicating that such
status was relevant to robbery charge); United States
v. Brooks, supra, 772 F.3d 1167–68 (postal supervisor
provided information in response to investigation
directed at individual); United States v. Bustamante,
supra, 687 F.3d 1194 (affidavit attesting to entry in
defendant’s birth record); United States v. Smith, 640
F.3d 358, 362–63 (D.C. Cir. 2011) (letters from court
clerk, containing seal and clerk’s signature, stating that
‘‘it appears from an examination of the records on file
in this office’’ that defendant had been convicted of
felony); Cascen v. Virgin Islands, 60 V.I. 392, 399, 411
(2014) (forms generated by firearms supervisor for Vir-
gin Islands Police Department indicating that her search
of firearm registry revealed that defendant did not have
license to possess firearm in Virgin Islands).
The record before us does not establish that any
declarant objectively would have believed that his or
her statement relaying that the inspection number
revealed by Angon’s query corresponded to Manny’s
Auto would be used as evidence in a prosecution. Most
of the concerns articulated with respect to the state-
ment by the New York State Police employee apply
equally to the relaying of that statement to Angon by
the Waterbury Police Department employee. See foot-
note 13 of this opinion. Therefore, neither of those
statements was testimonial, and the admission of the
hearsay was not an error of constitutional magnitude.
B
Our conclusion in the preceding section requires us
to consider whether the defendant has established that
the evidentiary error in admitting Angon’s hearsay state-
ment regarding the Jeep’s inspection site was harmful
error. We conclude that he has not.
The law governing harmless error for nonconstitu-
tional evidentiary claims is well settled. ‘‘[W]hether [an
improper ruling] is harmless in a particular case
depends upon a number of factors, such as the impor-
tance of the witness’ testimony in the [defendant’s] case,
whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting
the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and,
of course, the overall strength of the prosecution’s case.
. . . Most importantly, we must examine the impact of
the . . . evidence on the trier of fact and the result of
the trial. . . . [T]he proper standard for determining
whether an erroneous evidentiary ruling is harmless
should be whether the jury’s verdict was substantially
swayed by the error. . . . Accordingly, a nonconstitu-
tional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict.’’ (Internal quotation marks omitted.) State
v. Favoccia, 306 Conn. 770, 808–809, 51 A.3d 1002
(2012).
In order for the jury to have found the defendant
guilty in the present case, the state had to prove that
the defendant knowingly possessed and intended to sell
the narcotics found in the Jeep. See General Statutes
(Rev. to 2013) § 21a-278 (b). Because both the defendant
and Lawrence were in the vehicle at the time of the
police stop and the drugs were in a hidden compart-
ment, the state had to prove the defendant’s construc-
tive possession of the narcotics at trial. ‘‘Where the
defendant is not in exclusive possession of the premises
where the narcotics are found, it may not be inferred
that [the defendant] knew of the presence of the narcot-
ics and had control of them, unless there are other
incriminating statements or circumstances tending to
buttress such an inference. . . . [Although] mere pres-
ence is not enough to support an inference of dominion
or control, where there are other pieces of evidence
tying the defendant to dominion and control, the [finder
of fact is] entitled to consider the fact of [the defen-
dant’s] presence and to draw inferences from that pres-
ence and the other circumstances linking [the
defendant] to the crime.’’ (Internal quotation marks
omitted.) State v. Bruno, 293 Conn. 127, 136–37, 975
A.2d 1253 (2009).
There were plenty of circumstances other than the
defendant’s presence in the Jeep linking him to the
crime of possession with intent to sell. Although Law-
rence and the defendant pointed the finger at the other
at trial, the jury reasonably could have found Lawrence
credible as to the defendant’s actions, even if it did not
credit her testimony that she had no knowledge that
the drugs were in the Jeep. See, e.g., State v. Brown,
299 Conn. 640, 648, 11 A.3d 663 (2011) (‘‘[t]he trier of
fact may credit part of a witness’ testimony and reject
other parts’’ [internal quotation marks omitted]). Her
testimony was corroborated by many facts independent
of the inspection information.
The defendant admitted to Henriques, in so many
words, that he was the one who was selling the narcot-
ics. He provided $4000 to help Lawrence make bail. The
defendant was in the company of a known Waterbury
heroin dealer just before a large quantity of heroin,
packaged for sale, was discovered in the car in which
he was a passenger. As we explain later, it was clear
that the defendant was well acquainted with this person.
During the motor vehicle stop, the defendant appeared
more nervous than the average person who is subject
to such a stop.
The defendant’s own account of the events on the
night in question was manifestly not credible. He ini-
tially testified on direct examination that the purpose
of the February 5, 2013 trip was to go to ‘‘the casino’’
with Lawrence, a trip that he claimed they had made
before. The defendant later admitted that he had never
been to a casino in Connecticut and did not know how
to get there from Waterbury. Thereafter, the defendant
offered a different explanation for the February 5 trip.
He testified that he and Lawrence had driven to Con-
necticut that night to look at a used car owned by a
man named Paul. The defendant testified that he had
never previously spoken to Paul and only learned about
him through Lawrence, who had informed the defen-
dant that Paul wanted to sell him a used car. The defen-
dant also claimed not to know any of the other
occupants of the black vehicle.
The surveillance video tells a different story. It shows
a black vehicle arriving at the gas station approximately
three minutes after the defendant is seen on his cell
phone. The vehicle is being driven by a Waterbury her-
oin dealer. The defendant walks up to the vehicle as it
is pulling into the gas station and, without hesitation,
enters the rear passenger seat the moment it stops.
The vehicle immediately departs. It strains credulity to
believe that neither the defendant nor three purported
strangers would take a moment to confirm the identity
of the other or to introduce themselves.14 The video
also reflects that the black vehicle returned to the gas
station approximately eleven minutes after it left with
the defendant. That brief period of time would be con-
sistent with the time it would take to retrieve something
from a known location nearby (the cash in the bush).
That period does not seem consistent with the time
that it would take to drive the ‘‘mile and a-half [or] two
miles down the road’’ where the defendant claimed
Paul’s vehicle was located, to conduct a sufficiently
thorough inspection of the vehicle to decide to make
an offer, to engage in a failed negotiation on price, and
then to return to the gas station.
Finally, we observe that evidence independent of the
inspection testimony pointed to the defendant as the
person having control over the Jeep. The defendant
mentioned an unnamed ‘‘friend’’ as the Jeep’s owner
when Angon inquired during the vehicle stop. His post
facto claim that the friend to whom he was referring
was Lawrence was manifestly not credible given that
she was present when he identified the purported
owner. Angon testified that it was common for drug
dealers to register a vehicle they use for the sale of
drugs to another person. The defendant had a used car
business, which would provide ready access to vehicles,
including those registered to third parties. The Jeep
was registered in the name of a person who purportedly
lives in the Bronx. The defendant’s business is in the
Bronx. Angon testified that most heroin sold in Water-
bury comes from the Bronx.
We conclude that the inspection testimony, while not
unimportant, was not of sufficient consequence when
viewed in light of the state’s relatively strong case
against the defendant to persuade us that the improper
admission of this evidence had a significant effect on
the verdict. Therefore, the defendant has not proved
harmful error.
III
Finally, we turn to the defendant’s claim that the
Appellate Court incorrectly concluded that, although
the prosecutor made certain improper statements dur-
ing closing argument, those improprieties did not
deprive the defendant of his due process right to a fair
trial. We disagree.
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . We first
examine whether prosecutorial impropriety occurred.
. . . Second, if an impropriety exists, we then examine
whether it deprived the defendant of his due process
right to a fair trial.’’ (Internal quotation marks omitted.)
State v. Maguire, 310 Conn. 535, 552, 78 A.3d 828 (2013).
‘‘[T]he defendant has the burden to show both that the
prosecutor’s conduct was improper and that it caused
prejudice to his defense.’’ State v. A. M., 324 Conn. 190,
199, 152 A.3d 49 (2016).
In determining whether the defendant was deprived
of his due process right to a fair trial, ‘‘we are guided
by the factors enumerated by this court in State v.
Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). These
factors include [1] the extent to which the [impropriety]
was invited by defense conduct or argument, [2] the
severity of the [impropriety], [3] the frequency of the
[impropriety], [4] the centrality of the [impropriety] to
the critical issues in the case, [5] the strength of the
curative measures adopted, and [6] the strength of the
state’s case. . . . [A] reviewing court must apply the
Williams factors to the entire trial, because there is no
way to determine whether the defendant was deprived
of his right to a fair trial unless the [impropriety] is
viewed in light of the entire trial. . . . The question of
whether the defendant has been prejudiced by prosecu-
torial [impropriety] . . . depends on whether there is
a reasonable likelihood that the jury’s verdict would
have been different absent the sum total of the impropri-
eties.’’ (Citations omitted; internal quotation marks
omitted.) State v. Martinez, 319 Conn. 712, 736, 127
A.3d 164 (2015); see also State v. Gould, 290 Conn. 70,
77, 961 A.2d 975 (2009) (court looks to cumulative effect
of all improprieties).
In the present case, the Appellate Court identified
three improprieties that occurred during closing argu-
ment.15 In the first instance, the prosecutor argued to
the jury that, to find the defendant not guilty, the jury
had to disbelieve the testimony of Angon, Henriques,
and another state witness (Singh violation). See State
v. Singh, 259 Conn. 693, 712, 793 A.2d 226 (2002) (‘‘[A]
witness may not be asked to characterize another wit-
ness’ testimony as a lie, mistaken or wrong. Moreover,
closing arguments providing, in essence, that in order
to find the defendant not guilty, the jury must find that
witnesses had lied, are similarly improper.’’ [Foot-
note omitted.]).
In the second and third instances, the prosecutor
improperly disparaged the integrity and role of defense
counsel. See State v. Outing, 298 Conn. 34, 82–83, 3
A.3d 1 (2010) (‘‘[T]he prosecutor is expected to refrain
from impugning, directly or through implication, the
integrity or institutional role of defense counsel. . . .
[I]t is improper for a prosecutor to tell a jury, explicitly
or implicitly, that defense counsel is employing stan-
dard tactics used in all trials, because such argument
relies on facts not in evidence and has no bearing on
the issue before the jury, namely, the guilt or innocence
of the defendant.’’ [Citation omitted; internal quotation
marks omitted.]), cert. denied, 562 U.S. 1225, 131 S. Ct.
1479, 179 L. Ed. 2d 316 (2011). Specifically, during his
rebuttal argument, in response to defense counsel’s
assertion that the lack of DNA evidence linking the
defendant to the drugs was significant, the prosecutor
first stated, ‘‘[s]o here’s the state’s Hobson’s choice, our
conundrum, if we don’t put the evidence up to the lab,
defense can argue, oh my God, they didn’t test anything.
Oh, my God, what are they doing? Just like he did with
the black bag, right, and then we do send the stuff up
there, we know we’re not gonna get stuff, usually they
use that against us, right, it’s a Hobson’s choice.’’
(Emphasis added.) Then, in response to defense coun-
sel’s argument that Lawrence had no difficulty under-
standing the prosecutor’s questions but intentionally
failed to understand defense counsel’s questions, the
prosecutor stated, ‘‘[w]hen you think about [Law-
rence’s] testimony, think about the manner in which I
ask questions, even consider how I was talking. And
think about the rocket fire questions from defense coun-
sel. Was he trying to trip her up? Was he trying to put
words in her mouth?’’ (Emphasis added.)
Applying the Williams factors to the present case,
we agree with the Appellate Court that they do not
collectively weigh in favor of the defendant. First,
defense counsel invited one of the three prosecutorial
improprieties regarding his cross-examination of Law-
rence. Specifically, defense counsel stated in his closing
argument that Lawrence deployed a strategy of claiming
she did not understand defense counsel’s questions or
could not recall the answers, even though she had no
difficulty understanding the prosecutor or recalling
information necessary to answer his questions. The
prosecutor’s comment regarding defense counsel’s
cross-examination technique was an attempt to explain
why Lawrence had difficulty with defense counsel’s
questions.
Second, the improprieties were not particularly
severe. The defendant’s theory hinged on attacking the
credibility of Lawrence, not of the police. None of the
improper comments significantly undercuts that theory.
Although one of the problems arising from a Singh
violation is that it risks distorting the state’s burden of
proof; see State v. Singh, supra, 259 Conn. 709–10
(‘‘such comments excluded possibility that jury could
have concluded only that witnesses were probably
truthful and defendant was probably lying, thereby pre-
venting jury from ‘return[ing] a verdict of not guilty
because the evidence might not be sufficient to convict
the defendant beyond a reasonable doubt’ ’’ [emphasis
omitted]), the fact that it was not directed at the state’s
key witness and had no impact on the critical video
evidence renders it less serious. Defense counsel
objected to only one of the comments—the prosecutor’s
comment concerning defense counsel’s cross-examina-
tion of Lawrence—which suggests that the other com-
ments were not viewed as particularly serious. See, e.g.,
State v. Medrano, 308 Conn. 604, 620–21, 65 A.3d 503
(2013) (‘‘[w]hen defense counsel does not object,
request a curative instruction or move for a mistrial,
he presumably does not view the alleged impropriety
as prejudicial enough to jeopardize seriously the defen-
dant’s right to a fair trial’’ [internal quotation marks
omitted]). The court sustained that objection, although
it declined a subsequent request for a curative
instruction.
Third, there were only three brief improper com-
ments, all during rebuttal argument. Cf. State v. Singh,
supra, 259 Conn. 724 (finding it noteworthy that
improper comments occurred in both cross-examina-
tion and closing arguments). Those comments can
hardly be properly characterized as frequent in the total-
ity of the closing argument.
Fourth, although two of the comments related to
a critical issue in the case, namely, the credibility of
Lawrence and the defendant, the comments only indi-
rectly bolstered Lawrence’s credibility or undercut the
defendant’s credibility. Defense counsel had been able
to strongly argue to the jury that Lawrence’s testimony
was not credible in light of certain impeachment evi-
dence. Although the defendant did rely on the lack of
DNA evidence tying him to the narcotics, DNA was not
critical to the case, and the comment regarding typical
defense strategies regarding such evidence did not
place such argument in doubt.
Fifth, the strength of any curative measures does not
weigh in favor of either party. The trial court sustained
defense counsel’s only objection in the presence of the
jury but denied his request for a curative instruction.
The court properly instructed the jury that nothing the
attorneys said was evidence. Further, the court properly
instructed the jury that it was free to credit all, some,
or none of each witness’ testimony.
Finally, the state’s case was relatively strong. Despite
inconsistencies in Lawrence’s testimony, which
undoubtedly was critical to the case, the video provided
neutral evidence that sufficiently corroborated her
account of the defendant’s conduct. Moreover, the
defendant’s own testimony, which was internally incon-
sistent and objectively inconsistent with the video, was
strong evidence of his guilt.
We conclude that there was no reasonable likelihood
that the jury would have returned a different verdict
in the absence of the three relatively inconsequential
improprieties. Therefore, the defendant has not met his
burden of establishing that he was deprived of his due
process right to a fair trial.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, ROBINSON, MULLINS and
KAHN, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
On one occasion, the defendant brought a different color Jeep, but the
driving arrangement was the same.
2
Lawrence admitted that, in exchange for her testimony against the defen-
dant, she hoped to have the state dismiss the charge (unidentified) filed
against her. Lawrence is a citizen of Jamaica and had a green card permitting
her to be in the United States. She disclaimed any knowledge that a convic-
tion could result in her deportation.
3
Manana was not called as a witness, and no further evidence was adduced
as to his identity or connection to the defendant.
4
The defendant raised an additional evidentiary claim, which the Appellate
Court rejected; State v. Sinclair, supra, 173 Conn. App. 24–28; that is not
at issue in this certified appeal.
5
In light of this conclusion, Judge Beach declined to reach the issue of
whether the conviction should have been reversed due to the prosecutorial
improprieties. State v. Sinclair, supra, 173 Conn. App. 32 n.2 (Beach, J.,
concurring in part and dissenting in part).
6
The defendant does not challenge the admission of the information
yielded from Angon’s Google search, only the statements that led to that
search.
7
In response to a hearsay objection, the state initially argued that the
inspection information was admissible as a business record and then later
argued that Angon could testify as to his personal knowledge of the record.
The court initially overruled defense counsel’s objection and told Angon:
‘‘You can testify as to what you know and indicate how you know it.’’
8
A printout of the Jeep’s registration record was admitted into evidence
without objection. That printout does not contain any inspection informa-
tion. No other printout relating to the Jeep was admitted into evidence. We
assume that Angon’s reference to inspection numbers on a printout, which
needed translation, refers to information obtained in a different computer
query.
9
Although the state concedes that Angon’s inspection testimony contains
hearsay, we note the possibility that the inspection record itself may not
be hearsay. We cannot ascertain from the record whether the inspection
numbers are assigned to inspection sites by computer or whether there is
some aspect of human input involved. ‘‘Generally, mechanically generated
records don’t qualify as ‘statements’ for hearsay purposes, but when those
records are developed with human input, they can become hearsay state-
ments.’’ United States v. Bates, 665 Fed. Appx. 810, 814 (11th Cir. 2016);
see State v. Buckland, 313 Conn. 205, 221, 96 A.3d 1163 (2014) (machine
generated data is not subject to restrictions imposed by Crawford and its
progeny), cert. denied, U.S. , 135 S. Ct. 992, 190 L. Ed. 2d 837 (2015);
see also Bullcoming v. New Mexico, 564 U.S. 647, 660, 131 S. Ct. 2705,
180 L. Ed. 2d 610 (2011) (contrasting ‘‘raw, machine-produced data’’ or ‘‘a
machine-generated number’’ with certifications relating to past events and
human actions, latter being appropriately tested by cross-examination).
10
The right to confrontation guaranteed by the sixth amendment is made
applicable to the states through the due process clause of the fourteenth
amendment. See, e.g., Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065,
13 L. Ed. 2d 923 (1965).
11
In Davis, the court held that the victim’s statements to the 911 operator
while the emergency was unfolding were nontestimonial and could be admit-
ted because they were given for the primary purpose of responding to the
emergency. Davis v. Washington, supra, 547 U.S. 829. In contrast, statements
given after the defendant fled, in response to targeted questions by the 911
operator, were testimonial and, therefore, inadmissible because they were
provided after the emergency had passed for the primary purpose of devel-
oping evidence against an accused. Id., 828–29.
12
The plurality rested its holding on two independent grounds. See Wil-
liams v. Illinois, supra, 567 U.S. 58, 86. The first ground, irrelevant to the
present case, was that the out-of-court statements were not hearsay under
traditional rules of evidence. Id., 57–58 (plurality opinion). It reasoned that
the expert relayed those statements solely for the purpose of explaining
the assumptions on which the expert’s opinion rested. Id., 56–58 (plurality
opinion). The plurality thus concluded that the statements were not offered
for their truth and therefore would fall outside the scope of the confrontation
clause. Id., 58. Five justices disagreed with this reasoning. Id., 104–109
(Thomas, J., concurring in the judgment); id., 125–33 (Kagan, J., dissenting).
13
Although Angon presumably could have identified the Waterbury Police
Department employee from his ‘‘office’’ who relayed the inspection informa-
tion to him, he was not asked to identify that person. It is unclear whether
this information was elicited, and in turn communicated, by someone serving
in a law enforcement capacity or in a purely administrative capacity. Angon
also was not asked whether this person was aware of the potential relevance
of this information.
We note that neither party has provided this court with any case law
addressing testimonial hearsay in the context of one police officer relaying
the statement of a third party to another officer. Nonetheless, we are mindful
of the United States Supreme Court’s admonition that ‘‘we do not think it
conceivable that the protections of the [c]onfrontation [c]lause can readily
be evaded by having a [note taking] policeman recite the unsworn hearsay
testimony of the declarant, instead of having the declarant sign a deposition.’’
(Emphasis omitted.) Davis v. Washington, supra, 547 U.S. 826. In Williams,
the four dissenting justices acknowledged Justice Thomas’ view that ‘‘the
[c]onfrontation [c]lause reaches [bad faith] attempts to evade the formalized
process’’; Williams v. Illinois, supra, 567 U.S. 113 (Thomas, J., concurring
in the judgment); but noted that he ‘‘provides scant guidance on how to
conduct this novel inquiry into motive.’’ Id., 140 n.7 (Kagan, J., dissenting).
There is nothing in the record before us, or in logic, tending to suggest
that Angon or any other police officer intentionally elicited the inspection
information informally to avoid the confrontation issue. A certified copy of
the record would have avoided both the confrontation and hearsay issues.
14
It also seems implausible that the four strangers would have driven off
together to allow the defendant to view Paul’s vehicle rather than meet
where Paul’s car purportedly was located a short distance away or have
Paul’s car brought to the gas station.
15
In his brief, the defendant devotes the majority of his argument
addressing whether the Appellate Court correctly concluded that only three
of eleven actions on the part of the prosecutor constituted prosecutorial
impropriety. Although the state asserted in its brief that the certified issue
before this court is limited to whether the three improprieties identified by
the Appellate Court deprived the defendant of his right to a fair trial, the state
conceded at oral argument that this court may review all of the defendant’s
additional claims that were raised and rejected, by the Appellate Court. We
agree with the Appellate Court that the eight additional claims of prosecu-
torial impropriety are without merit and do not warrant further analysis.
See State v. Sinclair, supra, 173 Conn. App. 16 and n.2.