State v. Leniart

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STATE OF CONNECTICUT v. GEORGE
MICHAEL LENIART
(AC 36358)
Sheldon, Prescott and Flynn, Js.
Argued October 8, 2015—officially released June 14, 2016
(Appeal from Superior Court, judicial district of New
London, Jongbloed, J.)
Lauren Weisfeld, senior assistant public defender,
for the appellant (defendant).
Stephen M. Carney, senior assistant state’s attorney,
with whom, on the brief, was Michael L. Regan, state’s
attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, George Michael Leni-
art, appeals from the judgment of conviction, rendered
after a jury trial, of murder in violation of General Stat-
utes § 53a-54a (a),1 and three counts of capital felony
in violation of General Statutes (Rev. to 1995) § 53a-
54b (5), (7) and (9), as amended by Public Acts 1995,
No. 95-16, § 4.2 The defendant claims that the evidence
was insufficient to prove beyond a reasonable doubt
each of the crimes of which he was convicted. He also
claims that the trial court improperly excluded a video-
tape of an interview conducted by police of a crucial
prosecution witness just prior to the administration of
a polygraph examination, admitted evidence of prior
misconduct committed by the defendant, and excluded
expert testimony that he proffered regarding the lack
of reliability of jailhouse informant testimony. Although
we disagree with the defendant’s claims regarding the
sufficiency of the evidence, we agree that the court
improperly excluded the polygraph pretest interview
videotape, and, accordingly, we reverse the judgment
of conviction and remand the case for a new trial.
Because the remaining two evidentiary issues are likely
to arise again on remand, we address them in turn.
Although we disagree with the defendant that the court
improperly admitted evidence of his prior misconduct,
we agree that the court improperly excluded expert
testimony proffered by the defendant regarding the
reliability of jailhouse informant testimony.
The jury reasonably could have found the following
facts. On May 29, 1996, the victim, A.P.,3 who was fifteen
years old, snuck out of her parents’ home to meet P.J.
Allain, another teenager, so that they could smoke mari-
juana, drink alcohol, and have sex. The two teenagers
were picked up by the defendant, who at the time was
thirty-three years old. They then drove to a secluded
location in the woods.
A.P. and Allain drank beer, smoked marijuana, and
kissed in the defendant’s pickup truck. The defendant
took Allain aside and told him that he wanted ‘‘to do
her’’ and that he ‘‘wanted a body for the altar.’’ The
defendant had previously told Allain that he was in
a cult.
Allain returned to the truck and told A.P. that she
was going to be raped by the defendant. A.P. asked that
she have sex only with Allain. Allain then removed her
clothes and had sex with her in the truck while the
defendant watched through the windshield. After Allain
and A.P. finished having sex, the defendant climbed
into the truck and sexually assaulted A.P. During the
assault, Allain kept his hand on A.P.’s breast but could
not look at her because he felt horrible. Afterward, A.P.
pretended not to be upset so that the defendant would
not harm her further.
The defendant then proceeded to drive the teenagers
toward home. The defendant dropped off Allain near his
home. After Allain was no longer present, the defendant
drove A.P. to an unknown location, where he pretended
to run out of gas. The defendant forced A.P. to run into
the woods with him, and at times he had to drag her
along. The defendant then choked A.P., killed her, and
disposed of her body in an unknown location. A.P. was
never seen again by anyone despite a nationwide search
by law enforcement for many years, and her remains
have never been recovered.
The defendant admitted to four individuals, on differ-
ent occasions, to killing A.P. and/or to disposing of her
body: Allain4 and three inmates—Michael Douton,5 Zee
Ching,6 and Kenneth Buckingham.7 The defendant was
incarcerated with Douton, Ching, and Buckingham at
various times while he was serving a sentence for sexu-
ally assaulting K.S., a thirteen year old girl, approxi-
mately six months prior to the disappearance of A.P.
A warrant was issued for the defendant’s arrest on
March 28, 2008, and the defendant was subsequently
charged in a substitute, long form information with
the following crimes: murder in violation of § 53a-54a;
capital felony in violation of § 53a-54b (5) (kidnap-mur-
der); capital felony in violation of § 53a-54b (7) (murder
in the course of sexual assault); and capital felony in
violation of § 53a-54b (9) (murder of person under
age sixteen).
The matter was tried to a jury, Jongbloed, J., presid-
ing. On March 2, 2010, the jury returned a verdict of
guilty on all counts. On June 22, 2010, the court merged
the verdicts into a single conviction of capital felony and
sentenced the defendant to a term of life imprisonment
without the possibility of release. This appeal followed.
Additional facts and procedural history shall be set forth
as necessary to address the claims of the defendant.
I
SUFFICIENCY OF THE EVIDENCE
The defendant first claims that the evidence was
insufficient to prove beyond a reasonable doubt any of
the charges of which he was convicted. Specifically,
the defendant asserts that the evidence was insufficient
to establish beyond a reasonable doubt that (1) A.P. is
dead, because, pursuant to the corpus delicti rule, the
defendant’s alleged confessions may not be used as
evidence to prove that A.P. is dead in the absence of
independent proof of her death; (2) the defendant
intended to kill A.P.; (3) he murdered A.P. during the
commission of a sexual assault because there was no
evidence independent of his confessions that he sexu-
ally assaulted A.P.; and (4) he murdered A.P. in the
course of a kidnapping or before she could be returned
to safety.8 For the reasons that follow, the defendant
cannot prevail on his sufficiency of the evidence claims.
A
We first turn to the defendant’s claim that the evi-
dence was insufficient to prove beyond a reasonable
doubt that A.P. is dead because, in his view, the only
evidence of A.P.’s death is the testimony of four of the
state’s witnesses that the defendant separately con-
fessed to each of them that he killed A.P. and disposed
of her body. The defendant argues that, under these
circumstances, the common-law corpus delicti rule pre-
vents him from being convicted of murder and capital
felony solely on the basis of his uncorroborated confes-
sions and in the absence of independent extrinsic evi-
dence of the fact of death of the alleged victim.
In response, the state argues that the evidence is
sufficient to prove A.P.’s death beyond a reasonable
doubt because (1) the defendant cannot rely on the
corpus delicti rule, as he failed to object to the admis-
sion of his confessions at trial; and (2), under Connecti-
cut’s formulation of the corpus delicti rule, a
defendant’s confession may be used to prove the corpus
delicti, i.e., the death of the victim, as long as there is
corroborating evidence that substantially establishes
the trustworthiness of the defendant’s confession. Such
corroborating evidence, the state contends, need not
itself independently establish the corpus delicti, may
be circumstantial in nature, and need not prove any
element of the offense beyond a reasonable doubt.
We reject the defendant’s claim that the evidence
was insufficient to prove A.P.’s death. We reach this
conclusion primarily for two reasons. First, we con-
clude that under Connecticut law the corpus delicti
rule is an evidentiary rule regarding the admissibility
of confessions rather than a substantive rule of criminal
law to be applied in reviewing the sufficiency of the
state’s evidence. In this case, the defendant did not
object to the admissibility of his confessions at trial
and has not challenged their admissibility on appeal.9
Accordingly, we conclude that because the defendant
has not challenged the admission of the confessions,
the confessions may be considered by this court in
analyzing the sufficiency of the state’s evidence without
reference to the corpus delicti rule.
Second, we conclude that, even if the defendant is
permitted to raise the corpus delicti rule as part of his
sufficiency of the evidence claim, the sufficiency claim
fails because substantial evidence, circumstantial or
otherwise, was admitted at trial to corroborate both
the trustworthiness of his confessions and the fact of
A.P.’s death. As a result, because the defendant’s confes-
sions may be considered by this court in assessing the
sufficiency of the evidence, we apply the traditional
standard of review in assessing the evidence and con-
clude that the evidence was sufficient for the jury to
conclude beyond a reasonable doubt that A.P. is dead.
We begin our analysis by reviewing the purpose, his-
tory, and present scope of the corpus delicti rule in
Connecticut. The corpus delicti rule, which is often also
referred to as the corroboration rule, exists ‘‘to protect
against conviction of offenses that have not, in fact,
occurred, in other words, to prevent errors in convic-
tions based solely upon untrue confessions to nonexis-
tent crimes.’’ State v. Arnold, 201 Conn. 276, 287, 514
A.2d 330 (1986). An early version of Connecticut’s cor-
roboration rule was extensively discussed in State v.
Doucette, 147 Conn. 95, 98–100, 157 A.2d 487 (1959),
overruled in part by State v. Tillman, 152 Conn. 15, 20,
202 A.2d 494 (1964). The court in Doucette described
the rule as follows: ‘‘[T]he corpus delicti [that is, that
the crime charged has been committed by someone]
cannot be established by the extra-judicial confession
of the defendant unsupported by corroborative evi-
dence. . . .
‘‘The Connecticut rule, which we reaffirm, is that,
although the confession is evidence tending to prove
both the fact that the crime [charged] was committed
[by someone, that is, the corpus delicti] and the defen-
dant’s agency therein, it is not sufficient of itself to
prove the former, and, without evidence [from another
source] of facts also tending to prove the corpus delicti,
it is not enough to warrant a conviction; and that there
must be such extrinsic corroborative evidence as will,
when taken in connection with the confession, establish
the corpus delicti in the mind of the trier beyond a
reasonable doubt. . . . The independent evidence
must tend to establish that the crime charged has been
committed and must be material and substantial, but
need not be such as would establish the corpus delicti
beyond a reasonable doubt apart from the confession.
. . . Properly this [extrinsic] evidence should be intro-
duced and the court satisfied of its substantial character
and sufficiency to render the confession admissible,
before the latter is allowed in evidence. State v.
LaLouche, [116 Conn. 691, 695, 166 A. 252 (1933)].’’
(Citations omitted; emphasis altered; internal quotation
marks omitted.) State v. Doucette, supra, 147 Conn.
98–100. In Doucette, the court concluded that the sum
total of the evidence presented by the state of the corpus
delicti was inadequate to constitute ‘‘material and sub-
stantial evidence of the corpus delicti under our rule
[and we] are therefore constrained to find error in the
admission of [the evidence of the defendant’s extra-
judicial confession].’’ (Emphasis added; internal quota-
tion marks omitted.) Id., 106.
In 1964, our Supreme Court in State v. Tillman, 152
Conn. 15, 18, 202 A.2d 494 (1964), decided that Connecti-
cut’s traditional corpus delicti rule needed refinement
in part because of ‘‘a lack of harmony in the decisions
as to the extent and nature of the corroborative or
extrinsic evidence required, both as a prerequisite to
the admission of a confession into evidence and as a
prerequisite to a conviction where confessions have
been introduced.’’ After examining authorities from
numerous jurisdictions, the court in Tillman concluded
that Connecticut’s ‘‘difficulties in the application of our
corroboration rule largely stem from our present defini-
tion of corpus delicti and dictate its abandonment.’’ Id.,
20. Instead, the court adopted Professor John Henry
Wigmore’s definition of the corpus delicti as being ‘‘the
occurrence of the specific kind of loss or injury
embraced in the crime charged.’’ Id. Specifically, the
court stated that, in a homicide case, ‘‘the corpus delicti
is the fact of the death, whether or not feloniously
caused, of the person whom the accused is charged
with having killed or murdered.’’10 Id.
The court in Tillman also emphasized that although
the corroborating evidence must be material and sub-
stantial, it may be circumstantial in nature. Id.11 After
applying the new definition of corpus delicti to the
corroboration evidence in the case before it, the court
in Tillman concluded that there ‘‘was no error in the
admission or use of the confessions.’’ Id., 21.
The next major refinement of Connecticut’s corpus
delicti rule occurred in State v. Harris, 215 Conn. 189,
192–97, 575 A.2d 223 (1990). In Harris, the defendant
was charged with operating a motor vehicle while under
the influence of liquor. Id., 190. At trial, the court
granted a motion in limine to exclude inculpatory state-
ments made by the defendant because the state had
failed to produce material and substantial independent
evidence of the corpus delicti. Id., 191. The state
appealed.
Our Supreme Court reversed the judgment of the trial
court, holding that the corpus delicti rule should not
have barred the admission of the defendant’s inculpa-
tory statements. Id., 196. In so doing, the court reasoned
that the corpus delicti rule as formulated in State v.
Tillman, supra, 152 Conn. 20, which required corrobo-
ration of ‘‘the specific kind of loss or injury embraced
in the crime charged,’’ should not apply in Harris
because the crime of operating a motor vehicle while
under the influence of liquor proscribes only conduct.
See State v. Harris, supra, 215 Conn. 193. The court in
Harris reasoned that ‘‘when the crime charged prohib-
its certain conduct but does not encompass a specific
harm, loss or injury, a different approach to the corpus
delicti rule, other than that enunciated in Tillman, is
required.’’ Id.
Instead of following the traditional rule, the court in
Harris adopted the formulation of the corroboration
rule set forth in Opper v. United States, 348 U.S. 84,
93, 75 S. Ct. 158, 99 L. Ed. 101 (1954), which held that
‘‘the corroborative evidence need not be sufficient,
independent of the statements, to establish the corpus
delicti. It is [only] necessary, therefore, to require the
Government . . . to establish the trustworthiness of
the [defendant’s] statement.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) State v. Harris, supra,
215 Conn. 193–94. Thus, ‘‘[i]f . . . there is substantial
extrinsic evidence tending to demonstrate that the
statements of the defendant are true, i.e., trustworthy,
the statements are admissible. . . . The corpus delicti
of the crime may then be established by the statements
of the accused and the extrinsic evidence considered
together.’’ (Citation omitted; internal quotation marks
omitted.) Id., 195.
Our Supreme Court’s last major reformulation of our
corroboration rule came in State v. Hafford, 252 Conn.
274, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct.
136, 148 L. Ed. 2d 89 (2000). In Hafford, the defendant
at trial filed a motion to exclude a portion of his confes-
sion in which he stated that he sexually assaulted the
victim before murdering her. Id., 314. The trial court,
relying on State v. Harris, supra, 215 Conn. 189, denied
the motion, finding that there was sufficient corroborat-
ing evidence to establish that the defendant’s confes-
sion was trustworthy. State v. Hafford, supra, 314–15.
On appeal, the defendant claimed that, because he
was charged with the felony of sexual assault,12 which
requires proof of a specific loss or injury, the trial court
improperly applied the version of the corroboration
rule set forth in Harris. Id., 315. Instead, the defendant
argued in Hafford, the trial court should have applied
the corroboration rule set forth in State v. Tillman,
supra, 152 Conn. 15, and, before admitting the confes-
sion, required independent corroborating evidence of
the corpus delicti itself, i.e., that the victim was sexually
assaulted, rather than evidence that did not relate to
the corpus delicti but otherwise corroborated the relia-
bility of the defendant’s admission that he sexually
assaulted her. State v. Hafford, supra, 252 Conn. 315.
In rejecting the defendant’s claim, our Supreme Court
concluded that the same version of the corroboration
rule adopted in Harris should be extended to all types
of crimes, not just those that prohibit conduct and do
not require demonstration of a specific loss or injury.
Id., 317. In other words, in all criminal cases in which
the corroboration rule is raised, the state need only
present extrinsic corroborating evidence of the trust-
worthiness of the defendant’s confession and need not
offer material and substantial independent evidence of
the corpus delicti itself. The court held that as long as
a sufficient showing has been made that the confession
is trustworthy, the confession itself may be used to
meet the state’s burden to prove beyond a reasonable
doubt the corpus delicti and all elements of the offense.
In a somewhat cryptic footnote, however, the court
in Hafford provides what can be described as commen-
tary on its newly minted holding, using language that
the concurring opinion here appears to construe as
carving out a limited exception for homicide cases. In
that footnote, the court stated: ‘‘We note, however, that
proving the trustworthiness of a defendant’s confession
to a crime resulting in injury or loss often will require
evidence of that injury or loss. For example, a confes-
sion to a homicide likely would not be trustworthy
without evidence of the victim’s death.’’ (Emphasis
added.) Id., 317 n.23.
We have several observations about this footnote.
First, by its use of the adverbs ‘‘often’’ and ‘‘likely,’’
our Supreme Court appeared to recognize at least the
possibility that in some homicide cases, the state could
be successful in establishing that a defendant’s confes-
sion is sufficiently trustworthy without independent,
extrinsic evidence of the victim’s death. We are uncon-
vinced that the footnote was intended to convey any
deviation from the court’s holding. Rather, the footnote
simply conveyed that in many cases involving an injury
or loss, the trustworthiness of the confession might
be most easily and sufficiently corroborated through
evidence of the corpus delicti itself. That statement,
however, does not alter the court’s holding that such
evidence is no longer mandatory if other sufficient cor-
roborating evidence is available.
Second, unlike the former version of the corrobora-
tion rule expressed in Tillman, the touchstone of the
court’s analysis in Hafford is the trustworthiness of the
confession rather than an evaluation of whether the
state has presented independent, material, and substan-
tial evidence of the corpus delicti itself. We do not read
the footnote, which contains no analysis, to change
that focus.
Third, the footnote is dictum. ‘‘Dictum is generally
defined as [a]n expression in an opinion which is not
necessary to support the decision reached by the court.
. . . A statement in an opinion with respect to a matter
which is not an issue necessary for decision. . . . Our
Supreme Court has instructed that dicta have no prece-
dential value.’’ (Citation omitted; internal quotation
marks omitted.) State v. Torres, 85 Conn. App. 303, 320,
858 A.2d 776, cert. denied, 271 Conn. 947, 861 A.2d 1179
(2004). In Hafford, the victim’s body was found and thus
there was undeniable evidence of the victim’s death. As
a result, there was no need for the court to opine
whether a confession to a homicide may or may not
be trustworthy without evidence of the victim’s death.
Moreover, the footnote has never been relied upon by
our Supreme Court or this court. In any event, even if
we were to conclude that in homicide cases the trust-
worthiness of a confession may only be sufficiently
established by extrinsic evidence of the victim’s death,
we conclude, for reasons that we will subsequently
discuss at greater length, that the state in this case has
offered sufficient independent evidence of A.P.’s death,
along with other facts, to establish both the trustworthi-
ness of the defendant’s confession and the fact of death.
Having ascertained and articulated the specific ver-
sion of the corroboration rule that is to be applied,
we next turn to the issue of whether Connecticut’s
corroboration rule is an evidentiary rule that must be
raised by objecting to the admission of the defendant’s
confessions at trial, or whether it is a substantive rule
of criminal law that may be raised for the first time
after the confessions are introduced, either at trial or
in postverdict proceedings, including on appeal.13 This
question is not academic because if the corroboration
rule is a substantive rule of criminal law, i.e., an implicit
element of the state’s case for which there must be
sufficient evidence, then the state’s failure to establish
the corpus delicti could entitle a defendant to a judg-
ment of acquittal. If the corroboration rule is simply
an evidentiary rule that prohibits the admission of a
defendant’s confession until the state has offered mate-
rial and substantial evidence to establish the trustwor-
thiness of the defendant’s confession, then any
reversible error by the trial court in applying the rule
could only result in a new trial for a defendant rather
than a judgment of acquittal. We conclude that Connect-
icut’s corroboration rule is properly understood and
applied as an evidentiary rule rather than a substantive
rule of criminal law.
We begin our analysis by reviewing Connecticut
authority on this point. Prior to 1988, our Supreme Court
typically applied the corroboration rule in the context
in which the defendant raised it. In other words, if
a defendant at trial objected to the admission of his
confession on the ground that the state had not satisfied
the corpus delicti rule, then, on appeal, our courts
treated the claim as an evidentiary issue. See, e.g., State
v. Hafford, supra, 252 Conn. 314 (‘‘The defendant’s final
claim is that . . . [his] confession was inadmissible
under the corpus delicti rule. We disagree.’’); State v.
Tillman, supra, 152 Conn. 17–21 (‘‘The defendant
objected to the admission . . . of each of these confes-
sions on the ground that the state had failed to offer
sufficient preliminary proof of the corpus delicti to ren-
der any of the confessions admissible . . . . [T]here
was no error . . . .’’ [Citations omitted.]). If, however,
the defendant raised the corroboration rule as part of
a sufficiency of evidence claim, then our courts
reviewed the claim under that rubric. See, e.g., State v.
Arnold, supra, 201 Conn. 286 (‘‘a naked extrajudicial
confession of guilt by one accused of crime is not suffi-
cient to sustain a conviction when unsupported by any
corroborative evidence’’ [emphasis in original; internal
quotation marks omitted]).
In 1988, our Supreme Court decided State v. Uretek,
Inc., 207 Conn. 706, 543 A.2d 709 (1988). In Uretek, Inc.,
the defendant company and its vice president, John
Andrews, were prosecuted for knowingly storing haz-
ardous waste without a permit. Id., 707. At trial, the
defendants did not challenge the admission of certain
inculpatory extrajudicial statements made by Andrews.
Id., 713. On appeal, the defendants challenged the suffi-
ciency of the evidence. Id., 707. As part of their eviden-
tiary sufficiency claims, the defendants contended that
the statements made by Andrews could not be consid-
ered because the state had failed to present independent
evidence to establish the corpus delicti. Id., 713.
Our Supreme Court, however, declined to review the
corpus delicti claim because the defendant company
had failed to object to the admission of the statements
at trial or to move for a judgment of acquittal on the
basis of a lack of corpus delicti evidence. Id. The court
then stated that it would not review the unpreserved
corpus delicti claim because it did ‘‘not implicate a
fundamental constitutional right’’ and, thus, did not sat-
isfy the requirements for review of unpreserved claims
set forth in State v. Evans, 165 Conn. 61, 70, 327 A.2d
576 (1973), the precursor to State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989), modified by In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
State v. Uretek, Inc., supra, 207 Conn. 713.
Less than one year later, however, our Supreme
Court, in State v. Oliveras, 210 Conn. 751, 757, 557 A.2d
534 (1989), was again confronted with a sufficiency of
the evidence claim that relied upon the corpus delicti
rule. At trial, the defendant had failed to object to the
admission of his inculpatory statement or raise the cor-
pus delicti rule in his motion for a judgment of acquittal.
Although the court recognized that in State v. Uretek,
Inc., supra, 207 Conn. 713, it had ‘‘summarily’’ declined
to review an unpreserved corpus delicti claim because
it was not of constitutional magnitude; State v. Oliveras,
supra, 756; the court in Oliveras stated that ‘‘[w]e need
not now decide whether a claim that there was no proof
of the corpus delicti . . . from evidence independent
of the confession or admissions of an accused would
warrant review under Evans as implicating a constitu-
tional right.’’ Id., 757.14 Instead, the court chose to
review the unpreserved claim and concluded that there
was ample evidence of the victim’s death15 and, there-
fore, that the defendant’s confession could be used to
prove the other elements of the offense. Id. In choosing
to review the claim, the court did not indicate whether
it considered the claim to be unpreserved because the
defendant had failed to object to the admission of his
confession.
Despite the language in Oliveras, this court pre-
viously has concluded that it is bound by our Supreme
Court’s holding in Uretek, Inc., that the corroboration
rule is not of constitutional magnitude and, thus, an
unpreserved corpus delicti claim founders on the sec-
ond prong of Golding. See State v. Heredia, 139 Conn.
App. 319, 324–25, 55 A.3d 598 (2012), cert. denied, 307
Conn. 952, 58 A.3d 975 (2013). As we stated in Heredia,
‘‘[o]ur Supreme Court has held that corpus delicti does
not implicate a fundamental constitutional right suffi-
cient to satisfy the standard set forth in Golding. In
State v. Uretek, Inc., [supra, 207 Conn. 713], our
Supreme Court summarily rejected a claim that the lack
of extrinsic corroboration of an admission that was
vital to proving an element of the offense implicated a
fundamental constitutional right and, therefore, con-
cluded that such a claim did not qualify for review. . . .
State v. Oliveras, [supra, 210 Conn. 756] . . . .
Although our Supreme Court in Oliveras retreated from
the holding in Uretek, Inc., by declining to decide
whether [an unpreserved] claim that there was no proof
of the corpus delicti . . . would warrant review . . .
as implicating a constitutional right; [id., 757]; and this
court in State v. McArthur, [96 Conn. App. 155, 166,
899 A.2d 691, cert. denied, 280 Conn. 908, 907 A.2d 93
(2006)], assume[d] . . . that the defendant’s [unpre-
served corpus delicti] claim [was] constitutional in
nature in order to reach its merits, Uretek, Inc., has not
been expressly overruled. . . . Accordingly, we con-
clude that the defendant has failed to show that his
claim is of constitutional magnitude as required by the
second Golding prong.’’ (Citations omitted; internal
quotation marks omitted.) State v. Heredia, supra,
324–25.16
The defendant argues that Heredia is wrongly
decided and should be overruled because (1) other juris-
dictions have given unpreserved corpus delicti claims
appellate review, and (2) Uretek, Inc., is not binding
authority because our Supreme Court retreated in Oli-
veras from its holding in Uretek, Inc. We decline to
overrule Heredia because ‘‘[t]his court’s policy dictates
that one panel should not, on its own, [overrule] the
ruling of a previous panel. The [overruling] may be
accomplished only if the appeal is heard en banc.’’
(Internal quotation marks omitted.) State v. Ortiz, 133
Conn. App. 118, 122, 33 A.3d 862 (2012), aff’d, 312 Conn.
551, 93 A.3d 1128 (2014). Moreover, we agree with this
court’s conclusion in Heredia that because the Supreme
Court in Oliveras did not overturn its prior decision
in Uretek, Inc., this court remains obligated to follow
Uretek, Inc.
Even if we were to conclude that we are not bound
by Uretek, Inc., and thus that the law on this issue
remains unsettled in Connecticut, we would still reject
the defendant’s claim that he is entitled to rely on the
corroboration rule on appeal despite his failure to
object to the admission of his alleged confessions at
trial and his argument that the corroboration rule is a
substantive rule of criminal law. The question of
whether the corroboration rule is an evidentiary rule or
a substantive rule of criminal law has been the subject
of significant discussion in other jurisdictions and by
commentators. Professor Wayne LaFave aptly
describes this debate as follows: ‘‘In its traditional form,
the corpus delicti rule may have barred the government
from introducing the defendant’s confession until it had
first proved the corpus delicti. However, it is now gener-
ally accepted that a trial judge has the discretion to
vary the order of proof, meaning that the government
may introduce the defendant’s confession before it has
introduced the additional evidence that will establish
the corpus delicti, so long as the corpus delicti is proved
before the government rests. Aside from the order of
proof, there is also the question of whether the corpus
delicti rule simply defines the evidentiary foundation
needed to support the introduction of the defendant’s
confession, so that the decision is to be made by the
trial judge before the case is submitted to the jury, or
whether on the other hand it establishes an implicit
element of the government’s proof, so that the trial
judge’s evidentiary ruling would be merely preliminary
to the jury’s later determination of corpus delicti. There
is a split of authority between the ‘evidentiary founda-
tion’ and ‘implicit element’ approaches, though appar-
ently most courts follow the latter view.’’ (Emphasis
omitted; footnotes omitted.) 1 W. LaFave, Substantive
Criminal Law (2d Ed. 2003) § 1.4 (b), p. 31; compare,
e.g., Langevin v. State, 258 P.3d 866, 869 (Alaska App.
2011) (‘‘Alaska cases . . . have followed the ‘eviden-
tiary foundation’ approach to corpus delicti’’); State v.
Fundalewicz, 49 A.3d 1277, 1278–79 (Me. 2012) (credi-
ble evidence of corpus delicti must be presented before
defendant’s confession is admissible); State v. Sweat,
366 N.C. 79, 88, 727 S.E.2d 691 (2012) (‘‘corpus delicti
doctrine is a legal question of admissibility’’); with Peo-
ple v. LaRosa, 293 P.3d 567, 578–79 (Colo. 2013) (en
banc) (treating corpus delicti doctrine as rule affecting
sufficiency of evidence); State v. Reddish, 181 N.J. 553,
617–19, 859 A.2d 1173 (2004) (reviewing whether trial
court properly denied defendant’s motion for judgment
of acquittal); Commonwealth v. Byrd, 490 Pa. 544, 556,
417 A.2d 173 (1980) (given limited nature of corpus
delicti requirement, state produced sufficient indepen-
dent evidence to support conviction of robbery, con-
spiracy). Professor LaFave sides with the evidentiary
foundation formulation of the rule.17 See 1 W. LaFave,
supra, p. 31.
Some federal courts have characterized the corrobo-
ration rule as a hybrid rule. For example, the United
States Court of Appeals for the Seventh Circuit recently
stated: ‘‘The corroboration principle sometimes comes
into play in the trial court’s decision to admit the defen-
dant’s confession and also if he later challenges the
sufficiency of the evidence.’’ United States v. McDowell,
687 F.3d 904, 912 (7th Cir. 2012); see also United States
v. Dickerson, 163 F.3d 639, 642 (D.C. Cir. 1999) (‘‘[t]o
be sure, the corroboration requirement has also been
described as a rule governing the sufficiency of the
evidence’’). Even in those jurisdictions that consider
the corpus delicti rule to be an implicit element of an
offense or treat it as a hybrid rule, many courts have
concluded that no special instructions to the jury are
required. See, e.g., United States v. McDowell, supra,
912; United States v. Dickerson, supra, 642–43; United
States v. Singleterry, 29 F.3d 733, 737–38 (1st Cir.), cert.
denied, 513 U.S. 1048, 115 S. Ct. 647, 130 L. Ed. 2d
552 (1994).
After an extensive review of the case law and com-
mentary, we conclude, for the following reasons, that
Connecticut’s version of the corroboration rule is best
characterized and applied as an evidentiary rule, under
which a trial judge, upon objection, assesses the corrob-
oration evidence offered by the state before deciding
whether to admit the defendant’s inculpatory state-
ments. First, our Supreme Court has chosen to follow
the corroboration rule established for federal courts in
Opper v. United States, supra, 348 U.S. 93. Under the
typical application of that rule, the court exercises its
traditional evidentiary gatekeeping function by deciding
whether the defendant’s extrajudicial confession is suf-
ficiently trustworthy before allowing the jury to hear
the confession evidence. State v. Harris, supra, 215
Conn. 194–95. If the defendant’s inculpatory statements
are admitted by the trial court, the jury typically does
not receive any instruction from the court regarding
the corroboration rule, but instead simply assesses
whether all of the evidence is sufficient to prove the
elements of the offense beyond a reasonable doubt. In
so doing, the jury accords the defendant’s confession
whatever evidentiary weight it concludes is appropriate
after considering all relevant evidence, including evi-
dence of its trustworthiness.18 See Lego v. Twomey, 404
U.S. 477, 486, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972)
(‘‘[j]uries [are] at liberty to disregard confessions that
are insufficiently corroborated or otherwise deemed
unworthy of belief’’).
Certainly, if the corroboration rule implicated the
sufficiency of the evidence, then the jury would be
expected to play some role in its application but, as
previously discussed, most courts following the Opper
rule do not instruct the jury on the corroboration rule.
Moreover, in our view, an appellate court reviewing the
jury’s factual determination of guilt should not apply a
sufficiency of the evidence standard that looks at the
evidence at trial through a different lens than that used
by the jury in deciding whether the evidence established
the defendant’s guilt beyond a reasonable doubt.
Instead, an appellate court should review for error the
trial court’s gatekeeping determination that the defen-
dant’s confessions are sufficiently trustworthy to permit
the jury to hear them.
Second, there is no constitutional requirement to
have a corroboration rule at all. See, e.g., United States
v. Dickerson, supra, 163 F.3d 643 (corroboration
requirement ‘‘stems from a judicially created eviden-
tiary rule’’). Indeed, at least one state has chosen to
abandon altogether the corroboration rule; see State v.
Suriner, 154 Idaho 81, 87–88, 294 P.3d 1093 (2013); and
other jurisdictions, such as Connecticut, have signifi-
cantly narrowed the rule over time. See State v. Hafford,
supra, 252 Conn. 315–17. If the rule itself is not constitu-
tional in nature and jurisdictions are free to abandon
it altogether, then it makes little sense to characterize
it as an implicit element of the state’s case that is subject
to appellate review like all other unpreserved suffi-
ciency of the evidence claims.19
Finally, treating the corroboration rule as an implicit
element of the offense has been criticized by courts and
commentators because it places juries in the difficult
position of having to determine whether the state has
proven the corpus delicti or otherwise met the corrobo-
ration rule after it has heard evidence regarding the
defendant’s confessions. See, e.g., Langevin v. State,
supra, 258 P.3d 870; 1 W. LaFave, supra, p. 31. As the
Alaska Court of Appeals explained in Langevin v. State,
supra, 870: ‘‘The implicit element approach to corpus
delicti is difficult to reconcile with our law’s normal
view concerning a jury’s ability to dispassionately
assess a confession. Confessions can be powerful evi-
dence, and courts have traditionally feared that, once
a jury hears the defendant’s confession, the jury will
be unable to put aside this knowledge.
‘‘One example of the cautious approach taken by
courts when faced with admitting defendants’ confes-
sions is the Bruton rule—the rule that, when two or
more defendants are being tried jointly, if one defendant
has confessed and has implicated the co-defendants,
that confession cannot be admitted unless the confess-
ing defendant takes the stand. [See Bruton v. United
States, 391 U.S. 123, 126, 128–29, 88 S. Ct. 1620, 20 L.
Ed. 2d 476 (1968)] . . . The [United States Supreme]
Court concluded that, once the jury heard that one of
the defendants had confessed and had implicated one
or more co-defendants, the jurors simply could not be
trusted to obey an instruction that forbade them from
considering that confession when assessing the guilt of
the other defendants.
‘‘The implicit element approach to the corpus delicti
rule suffers from this same psychological difficulty.
Under this approach, if the trial judge rules that the
corpus delicti is satisfied, the jury would hear the defen-
dant’s confession, only to later be asked to set the
confession to one side and determine whether the gov-
ernment’s remaining evidence is sufficient to establish
the corpus delicti. One might doubt whether jurors,
having heard the defendant’s confession to a heinous
crime, could dispassionately discharge this duty.’’
(Internal quotation marks omitted.)
For these reasons, we conclude that Connecticut’s
corroboration rule is a rule of admissibility to be
decided by the court. A defendant who fails to challenge
the admissibility of the defendant’s confession at trial
is not entitled to raise the corroboration rule on appeal
because (1) the evidentiary claim is not of constitutional
magnitude and, thus, cannot meet Golding’s second
prong; see State v. Uretek, Inc., supra, 207 Conn. 713;
and (2) the rule does not implicate the sufficiency of
the state’s evidence.20 Accordingly, because the defen-
dant did not object to the admission of the confessions,
he is not entitled to raise the corroboration rule on
appeal, and, thus, the confessions are substantive evi-
dence that can be used in analyzing his sufficiency of
the evidence claims.
We turn, then, to the defendant’s claim that the evi-
dence was insufficient to prove beyond a reasonable
doubt that A.P. is dead. We begin our analysis by setting
forth the traditional standard of review applicable to a
sufficiency of the evidence claim. It is well settled that a
defendant who ‘‘asserts an insufficiency of the evidence
claim bears an arduous burden.’’ (Internal quotation
marks omitted.) State v. Rodriguez, 146 Conn. App. 99,
110, 75 A.3d 798, cert. denied, 310 Conn. 948, 80 A.3d
906 (2013). ‘‘[F]or the purposes of sufficiency review
. . . we review the sufficiency of the evidence as the
case was tried . . . . [A] claim of insufficiency of the
evidence must be tested by reviewing no less than,
and no more than, the evidence introduced at trial.’’
(Internal quotation marks omitted.) State v. Nasheed,
121 Conn. App. 672, 682, 997 A.2d 623, cert. denied, 298
Conn. 902, 3 A.3d 73 (2010). ‘‘In reviewing a sufficiency
of the evidence claim, we apply a two part test. First,
we construe the evidence in the light most favorable
to sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the [jury] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt . . . .
This court cannot substitute its own judgment for that
of the jury if there is sufficient evidence to support
the jury’s verdict.’’ (Internal quotation marks omitted.)
State v. Allan, 311 Conn. 1, 25, 83 A.3d 326 (2014).
‘‘[T]he jury must find every element proven beyond
a reasonable doubt in order to find the defendant guilty
of the charged offense, [but] each of the basic and
inferred facts underlying those conclusions need not
be proved beyond a reasonable doubt. . . . If it is rea-
sonable and logical for the jury to conclude that a basic
fact or an inferred fact is true, the jury is permitted to
consider the fact proven and may consider it in combi-
nation with other proven facts in determining whether
the cumulative effect of all the evidence proves the
defendant guilty of all the elements of the crime charged
beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact . . . but the cumulative impact of
a multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence. . . . In
evaluating evidence, the [jury] is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [jury] may draw
whatever inferences from the evidence or facts estab-
lished by the evidence [that] it deems to be reasonable
and logical.’’ (Internal quotation marks omitted.) State
v. Papandrea, 302 Conn. 340, 348–49, 26 A.3d 75 (2011).
Finally, on appeal, we do not ‘‘ask whether there is
a reasonable view of the evidence that would support
a reasonable hypothesis of innocence. We ask, instead,
whether there is a reasonable view of the evidence that
supports the jury’s verdict of guilty.’’ (Internal quotation
marks omitted.) State v. Stephen J. R., 309 Conn. 586,
594, 72 A.3d 379 (2013).
In this case, there is ample evidence from which
the jury reasonably could have concluded beyond a
reasonable doubt that A.P. is dead. First, the defendant
admitted to Allain on the day following her disappear-
ance that he had choked A.P. to death and disposed of
her corpse in a body of water. This admission, for the
reasons discussed previously in this opinion, may be
used as substantive evidence that she is dead. Similarly,
the defendant told Douton, a fellow inmate, that ‘‘she
was in the river’’ and that ‘‘they would never convict
him because they would never find [her] body.’’ The
defendant also told his cellmate, Ching, about a teenage
girl whom he had raped and killed on his boat before
disposing of her body by hiding it in a well and later
dumping it in Long Island Sound. In the same vein,
but on a different occasion, he told another inmate,
Buckingham, that he had accidently choked a young
girl to death while having sex with her and ‘‘disposed
of her off of a boat that he had or had access to out
in the Sound.’’ Although these confessions certainly
differed from one another in certain respects, the core
facts admitted in them were the same: that he killed
A.P. by choking her, then disposed of her remains in a
body of water.
Additionally, there is evidence independent of the
defendant’s confessions from which the jury could infer
that A.P. is dead. For example, A.P. disappeared during
the evening hours from her house never to be seen
again despite a nationwide search for her. She had been
missing for more than thirteen years at the time of the
defendant’s trial. She left home that evening without
taking money, clothes, or other personal belongings.
She was fifteen years old at the time, and the jury
could infer from her age and from other evidence of
her mental state and maturity that she lacked the intel-
lectual ability and life skills that would equip her with
the necessary resources to live elsewhere, undiscov-
ered by law enforcement and her family. See People v.
Ruiz, 44 Cal. 3d 589, 610–11, 749 P.2d 854, 244 Cal.
Rptr. 200 (although victim’s body never found, ample
circumstantial evidence of her death by foul play
included her abrupt disappearance, her failure to con-
tact friends and relatives, and her abandonment of per-
sonal effects), cert. denied, 488 U.S. 871, 109 S. Ct. 186,
102 L. Ed. 2d 155 (1988).
Moreover, on the basis of the eyewitness testimony
of Allain, the jury reasonably could have concluded
that, on the night of her disappearance, the defendant
sexually assaulted A.P. in his truck and could have
inferred that the defendant, who then had a motive to
kill her to avoid criminal liability for the sexual assault,
also had the opportunity to kill her as the last person
to be seen with her when she was alive.
The jury was also free to credit Allain’s testimony
that the defendant had stated to him while A.P. was
still in his truck and before he sexually assaulted her
that he was planning to kill her when he stated that he
‘‘wanted to do her’’ and that ‘‘we need a body.’’21 This
evidence may be used as substantive evidence that the
defendant followed through on his plan. ‘‘[A] declara-
tion indicating a present intention to do a particular
act in the immediate future, made in apparent good
faith and not for self-serving purposes, is admissible to
prove that the act was in fact performed.’’ (Internal
quotation marks omitted.) State v. Farnum, 275 Conn.
26, 35, 878 A.2d 1095 (2005); Conn. Code Evid. § 8-3 (4).
Finally, the jury reasonably could have inferred that
the defendant choked A.P. to death because approxi-
mately six months prior to A.P.’s disappearance, the
defendant choked another girl, thirteen year old K.S.,
into unconsciousness during a violent sexual assault.
See State v. DeJesus, 288 Conn. 418, 473, 953 A.2d 45
(2008) (evidence of prior sexual misconduct admissible
to establish defendant’s ‘‘propensity or a tendency to
engage in the type of aberrant and compulsive criminal
sexual behavior with which he or she is charged’’); see
also State v. Smith, 313 Conn. 325, 331–43, 96 A.3d
1238 (2014) (prior misconduct evidence that defendant
sexually assaulted and choked third party admissible
to demonstrate he choked and murdered victim during
commission of sexual assault).22
The defendant argues in his brief that there was some
evidence before the jury that A.P. was still alive. In
particular, the defendant points to a sworn statement,
admitted at trial, given to the police by James Butler,
a former Marine and a friend of A.P. and her family. In
his statement, Butler claimed to have seen and spoken
with A.P. in Virginia Beach, Virginia, after her disappear-
ance. Butler was not called to testify at trial, however,
and the police were unable to verify any of the details
he supplied as to his claimed encounter with A.P. In
any event, the jury certainly was free to disbelieve this
evidence because it was largely dependent on hearsay
and unsupported by any other evidence. In reviewing
a sufficiency of the evidence claim, ‘‘we do not ask
whether there is a reasonable view of the evidence that
would support a reasonable hypothesis of innocence.
We ask, instead, whether there is a reasonable view
of the evidence that supports the [trier’s judgment] of
guilty.’’ (Internal quotation marks omitted.) State v.
Brown, 90 Conn. App. 835, 839, 879 A.2d 466, cert.
denied, 276 Conn. 901, 884 A.2d 1026 (2005).
In light of all of the evidence, including all of the
reasonable inferences to be drawn therefrom, the fact
that law enforcement failed to find her body or discover
other forensic evidence that she is dead did not require
the jury to conclude that the state failed to meet its
burden to prove that A.P. is dead. See, e.g., State v.
Estrella, 277 Conn. 458, 465, 893 A.2d 348 (2006)
(upholding conviction despite lack of body and any
physical or forensic evidence of death); see also annot.,
65 A.L.R. 6th 359, 371, § 2 (2011) (‘‘it has long been
established and is almost universally recognized that
the existence of a body is not necessary for a homicide
conviction to be sustained’’).
Moreover, even if the defendant is entitled to rely on
the corroboration rule as part of our review of the
sufficiency of the evidence, we would still conclude
that independent evidence substantially corroborates
the trustworthiness of his confessions.23 As noted pre-
viously, under Opper and its progeny, the corroboration
evidence (1) may be circumstantial, (2) need not rise
to the level of proof beyond a reasonable doubt, and
(3) need not independently establish the death of A.P.
See State v. Harris, supra, 215 Conn. 194–95. The evi-
dence previously discussed substantially corroborates
the trustworthiness of the defendant’s confessions that
he acted in accordance with his intention to kill A.P.,
as expressed to Allain. There is direct eyewitness testi-
mony that he sexually assaulted A.P. on the night of
her disappearance. He had a motive to kill her. The
behavior to which he confessed, i.e., having sex with
and choking a young lady victim under sixteen years
of age, is consistent with his behavior in doing the
same to K.S. All of this evidence leads to the inevitable
conclusion that there was sufficient evidence from
which the jury reasonably could have concluded that
there was substantial evidence to corroborate the trust-
worthiness of the defendant’s confessions.
Finally, even if footnote 23 in Hafford required the
state to offer substantial evidence of A.P.’s death that
is totally independent of the defendant’s confessions,
we would still conclude that the state has met this
burden. On the basis of the conduct and statements of
the defendant during the evening hours of May 29, 1996,
and the other circumstances regarding A.P.’s abrupt
disappearance, all of which was supported by testimony
and facts independent from his confessions, there was
substantial circumstantial evidence from which the jury
could conclude that A.P. is dead. Under any version of
the corroboration rule, this evidence alone need not
establish the death of the victim beyond a reasonable
doubt, provided that this evidence and the defendant’s
confessions together constitute sufficient evidence
from which the jury could find beyond a reasonable
doubt that A.P. is dead. We conclude that the state met
that burden.
B
We next turn to the defendant’s claim that the evi-
dence was insufficient to prove beyond a reasonable
doubt that the defendant intended to cause the death of
A.P. Specifically, the defendant argues that the evidence
was sufficient at best to demonstrate an accidental
homicide, but falls short of establishing intent to kill.
We disagree.
‘‘[T]he specific intent to kill is an essential element of
the crime of murder. To act intentionally, the defendant
must have had the conscious objective to cause the
death of the victim. . . . Because direct evidence of the
accused’s state of mind is rarely available . . . intent is
often inferred from conduct . . . and from the cumula-
tive effect of the circumstantial evidence and the
rational inferences drawn therefrom. . . . Intent to
cause death may be inferred from . . . the events lead-
ing to and immediately following the death. . . . Fur-
thermore, it is a permissible, albeit not a necessary
or mandatory, inference that a defendant intended the
natural consequences of his voluntary conduct. . . . In
addition, intent to kill may be inferred from evidence
that the defendant had a motive to kill.’’ (Internal quota-
tion marks omitted.) State v. Otto, 305 Conn. 51, 66–67,
43 A.3d 629 (2012). We recognize that a jury may not
properly infer an intent to ‘‘commit murder from the
mere fact of the death of the victim, [or] even from her
death at the hands of the defendant.’’ State v. Crafts,
226 Conn. 237, 248, 627 A.2d 877 (1993).
The following evidence, and the reasonable infer-
ences to be drawn therefrom, was sufficient to demon-
strate beyond a reasonable doubt that the defendant
intended to cause A.P.’s death. First, although A.P.’s
body was never found, the defendant has repeatedly
admitted24 that he choked the victim. From this fact,
the jury could infer that he intended her death as a
natural consequence of that voluntary act. Although
such conduct may also be probative of a lesser mental
state, such as recklessness, it is not unreasonable to
infer that he intended A.P.’s death by choking her.
Second, the defendant expressed to Allain before
A.P.’s death that he intended to kill her. As previously
discussed, ‘‘[A] declaration indicating a present inten-
tion to do a particular act in the immediate future, made
in apparent good faith and not for self-serving purposes,
is admissible to prove that the act was in fact per-
formed.’’ (Internal quotation marks omitted.) State v.
Farnum, supra, 275 Conn. 35. This same principle is
relevant to whether the defendant committed that act
consistent with his stated contention.
Third, the defendant failed to obtain, or to try to
obtain, medical assistance for A.P. for the injuries he
caused to her. This failure supports an ‘‘antecedent
intent to cause death.’’ State v. Sivri, 231 Conn. 115,
129, 646 A.2d 169 (1994); see also State v. Francis, 228
Conn. 118, 128–29, 635 A.2d 762 (1993) (evidence that
defendant stabbed victim and immediately left scene
without rendering assistance was sufficient to infer
intent); State v. Greenfield, 228 Conn. 62, 78, 634 A.2d
879 (1993) (victim found ‘‘bloodied, unconscious, his
forehead visibly compressed, outside his blood-soaked
apartment’’ with ‘‘not the slightest evidence that the
defendant made any attempt to help the victim’’ was
sufficient evidence to infer intent).
Fourth, the defendant disposed of the victim’s body
so that it could not be located. Concealing a victim’s
corpse is ‘‘strong evidence of the defendant’s conscious-
ness of guilt,’’ and such evidence may be considered
‘‘as part of the evidence from which a jury may draw
an inference of an intent to kill.’’ State v. Sivri, supra,
231 Conn. 130 (defendant took extraordinarily success-
ful measures to hide victim’s body).
Finally, the state presented strong evidence of the
defendant’s motive to kill the victim, namely, that the
defendant had sexually assaulted A.P. and, therefore,
had an interest in ensuring that she could never testify
against him.25 From this evidence, the jury reasonably
could have inferred that the defendant had a motive to
kill the victim, which the jury could have considered
when evaluating the defendant’s intent. ‘‘Although
motive is not an element of the crime of murder that
the state must prove beyond a reasonable doubt . . .
an intent to kill may be inferred from evidence that the
defendant had motive to kill.’’ (Internal quotation marks
omitted.) State v. Otto, supra, 305 Conn. 73–74.
In the present case, the defendant’s intent, as an
element of the crime of murder, was proven beyond
a reasonable doubt by the cumulative impact of the
evidence and the rational inferences permissibly drawn
therefrom. Accordingly, the defendant cannot prevail
on this claim.
C
The defendant also claims, with respect to the crime
of capital felony in violation of § 53a-54b (7), that the
evidence was insufficient to prove beyond a reasonable
doubt that A.P. was murdered in the course of the
commission of a sexual assault. The defendant’s entire
argument with respect to this claim is contained in one
paragraph of his principal brief and is premised on his
contention that the only evidence that he murdered A.P.
in the course of the commission of a sexual assault
came from informants and was supported by no other
evidence of a sexual assault.26 We reject this claim for
several reasons.
First, as we have concluded in part I A of this opinion,
the defendant did not object to the admission of his
confessions and is not entitled to Golding review that
the confessions were improperly admitted. Moreover,
even if the defendant was entitled to raise the corrobo-
ration rule on appeal, we have already concluded that
the trustworthiness of his confessions was sufficiently
corroborated. Finally, the defendant does not contend
that the confessions (if properly admitted) and other
evidence in the case were insufficient to prove this
capital felony count beyond a reasonable doubt.
Accordingly, we are not persuaded by the defendant’s
claim that the evidence was insufficient to prove that
the defendant committed murder in the commission of
a sexual assault.
D
The defendant next claims that the evidence was
insufficient to prove that he is guilty of capital felony
in violation of § 53a-54b (5), as alleged in count one of
the information, because the state failed to demonstrate
beyond a reasonable doubt that he murdered A.P. dur-
ing the course of a kidnapping or before she was able
to return to safety.27 We disagree.
General Statutes (Rev. to 1995) § 53a-54b (5), as
amended by Public Act 95-16, § 4, defines the capital
offense of kidnap-murder as ‘‘murder by a kidnapper
of a kidnapped person during the course of the kidnap-
ping or before such person is able to return or be
returned to safety . . . .’’ In State v. Salamon, 287
Conn. 509, 542, 949 A.2d 1092 (2008), our Supreme Court
‘‘reconsidered its prior interpretation and construction
of the kidnapping statutes and concluded that [o]ur
legislature . . . intended to exclude from the scope of
the more serious crime of kidnapping and its accompa-
nying severe penalties those confinements or move-
ments of a victim that are merely incidental to and
necessary for the commission of another crime against
that victim. Stated otherwise, to commit a kidnapping
in conjunction with another crime, a defendant must
intend to prevent the victim’s liberation for a longer
period of time or to a greater degree than that which
is necessary to commit the other crime.
‘‘Although [the] holding in Salamon constituted a
significant change with respect to our interpretation
of the kidnapping statutes, we emphasized that [o]ur
holding does not represent a complete refutation of the
principles established by our prior kidnapping jurispru-
dence. First, in order to establish a kidnapping, the
state is not required to establish any minimum period
of confinement or degree of movement. When that con-
finement or movement is merely incidental to the com-
mission of another crime, however, the confinement or
movement must have exceeded that which was neces-
sary to commit the other crime. [T]he guiding principle
is whether the [confinement or movement] was so much
the part of another substantive crime that the substan-
tive crime could not have been committed without such
acts . . . . In other words, the test . . . to determine
whether [the] confinements or movements involved
[were] such that kidnapping may also be charged and
prosecuted when an offense separate from kidnapping
has occurred asks whether the confinement, movement,
or detention was merely incidental to the accompanying
felony or whether it was significant enough, in and of
itself, to warrant independent prosecution.’’ (Internal
quotation marks omitted.) State v. O’Brien-Veader, 318
Conn. 514, 557–59, 122 A.3d 555 (2015).
In the present case, the defendant’s admissions to
Allain regarding his conduct on May 29, 1996, toward
A.P. after Allain exited the defendant’s vehicle and the
defendant drove away with A.P. were sufficient to estab-
lish beyond a reasonable doubt that the defendant mur-
dered A.P. during the course of a kidnapping or before
she was able to return to safety. The defendant con-
fessed to Allain that he pretended to run out of gas,
and that A.P. was ‘‘freaking out, saying she had to go
home.’’ The defendant stated to Allain that he then
dragged A.P. into the woods, ‘‘made her run with him’’
and choked her because she was ‘‘freaking out.’’
According to Allain, the defendant also admitted that
he tied A.P. to a tree.
On the basis of the defendant’s admissions and the
reasonable inferences that they support, we conclude
that the evidence was sufficient to demonstrate that
the defendant’s movement and confinement of A.P. was
not merely incidental to the crime of murder because
he engaged in conduct beyond that necessary to choke
the victim to death. Specifically, in a series of events,
the defendant prevented A.P. from returning to safety
and dragged her by force into the woods and tied her
to a tree. The jury was free to infer that these events
were protracted and occurred along a series of indepen-
dent locations. See State v. Ward, 306 Conn. 718, 736–39,
51 A.3d 970 (2012) (sufficient evidence of kidnapping
where defendant dragged victim from kitchen to bed-
room and moved her from bed to floor for sexual assault
because that act made victim’s ‘‘possibility of escape
even more remote,’’ and sexual assault was brief part
of entire fifteen minute encounter); State v. Salamon,
supra, 287 Conn. 549–50 (sufficient evidence of kidnap-
ping because, in addition to assaultive acts, defendant
subdued victim and held her down for at least five
minutes). Accordingly, we conclude that the jury’s ver-
dict that the defendant committed a kidnapping was
supported by sufficient evidence.
II
EXCLUSION OF VIDEOTAPE OF INTERVIEW
We next turn to the defendant’s claim that the court
improperly excluded from evidence a videotape of an
interview that the police conducted of Allain immedi-
ately prior to his taking a polygraph examination (pre-
test interview). The defendant argues that the court
abused its discretion by excluding the videotape of the
pretest interview because the videotape contained rele-
vant evidence of Allain’s bias and motive for testifying
for the state.28 The state argues that the pretest interview
was an inseverable component of the polygraph exami-
nation, and, therefore, the court properly excluded the
videotape in accordance with our Supreme Court’s
holding in State v. Porter, 241 Conn. 57, 698 A.2d 739
(1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct.
1384, 140 L. Ed. 2d 645 (1998), in which the court,
inter alia, reaffirmed Connecticut’s per se ban on the
admissibility of ‘‘polygraph evidence.’’ We disagree that
the videotape of the pretest interview is ‘‘polygraph
evidence,’’ as that term was used by the court in Porter,
and we agree with the defendant that, by excluding
the tape on that basis, the court improperly excluded
relevant evidence of bias. We further conclude, contrary
to the state’s position, that because the evidentiary error
pertained to the veracity of a crucial state’s witness, it
was harmful and, therefore, constituted reversible
error.
The following additional facts, as established by the
record and procedural history, are relevant to the defen-
dant’s claim. In August, 2004, Allain, who already had
provided the police with a written statement implicating
the defendant in the murder of A.P., made himself avail-
able for a polygraph examination conducted by the state
police. Immediately prior to the administration of the
polygraph examination, Allain was subjected to an
approximately ninety minute pretest interview that was
conducted by the polygraph examiner, state police
Trooper Tim Madden. Allain was alone with Madden
for the majority of the pretest interview, although, at
one point, officers who had taken Allain’s earlier written
statement were brought in to allow Allain to amend
that statement. Although Madden informed Allain of his
right to have counsel available, Allain never requested
access to a lawyer.29 The pretest interview was video-
taped, as was the polygraph examination itself.30
At the outset of the interview, Allain repeatedly made
clear that he was motivated to take the test because
he recently had been charged with violating his proba-
tion and had a suspended period of incarceration hang-
ing over his head. Allain told Madden that his probation
officer was ‘‘pushing toward violating me if I don’t take
[the polygraph test].’’ Although Madden attempted to
persuade Allain that there were other and perhaps bet-
ter reasons why he should take the test, the videotape
of the interview plainly demonstrates the pressure
Allain felt to take the test.
During the pretest interview, Madden stressed to
Allain several times that the police wanted Allain ‘‘on
their team.’’ He suggested to Allain that the goal of
the polygraph was to help Allain give a truthful and
consistent statement at trial so that they could ‘‘get’’
the defendant, whom Madden described as the ‘‘big
fish.’’ Madden said he wanted Allain to pass the poly-
graph test because it would ensure that he would be a
more reliable witness for the state against the defen-
dant. Madden reviewed Allain’s prior sworn statement
with Allain in detail, and several times expressed his
desire that Allain ‘‘confirm’’ his prior statement. On
more than one occasion, Madden stopped to point out
weak spots in Allain’s narrative and arguably attempted
to shape Allain’s future testimony by suggesting ways
in which his statement could be amended to make it
more believable.
Madden also repeatedly indicated that it was in
Allain’s best interest to cooperate with the state, and
made clear to Allain that if he failed to cooperate fully,
he risked being charged in this matter, something that
Allain thus far had avoided. Several times during the
pretest interview, Madden offered Allain assurances
that even if he were to admit to more substantial
involvement in A.P.’s disappearance and murder than
previously disclosed, things would go better for Allain
if he cooperated fully with the state. To illustrate this
point, on at least six different occasions during the
pretest interview, Madden and the officers who took
his amended statement told Allain about the well-publi-
cized Maryann Measles case, in which a number of
persons had been implicated in the horrific rape and
murder of a teenage girl in Litchfield County.31 As it
was explained to Allain, one of the participants in the
Measles murder (Maggie Bennett), who had cooperated
fully with the state, had ‘‘gotten off lightly,’’ and received
a ‘‘slap on the wrist,’’ whereas those who had lied or
had been uncooperative with the police and prosecutors
received harsh punishments.
The defendant contends, on the basis of a report
disclosed to the defense by the state, that Allain failed
the polygraph examination. Although the state con-
ceded that the report contained a preliminary conclu-
sion that some of Allain’s answers were consistent with
deception, the state argued that it would have had to
conduct additional testing to determine whether Allain
actually failed the polygraph test. There is no evidence
that the state performed such testing despite the offi-
cers’ representations to Allain that the test would defini-
tively determine if he was telling the truth, and thus he
must take and pass it before he would be permitted to
testify and become eligible for favorable treatment in
connection with A.P.’s rape, disappearance, and death.
Prior to trial, the state filed a motion in limine seeking
to exclude all testimony or evidence pertaining to the
polygraph examinations of any witnesses. The court
first took up the motion in limine at a hearing on Febru-
ary 8, 2010. At that time, defense counsel indicated his
opposition to the motion, stating that it was his inten-
tion to have the videotape of Allain’s pretest interview
admitted into evidence along with the results of the
polygraph test. With respect to the videotape of the
pretest interview, the defendant stated that he would
seek to offer it on the ground that it showed Madden
giving Allain numerous assurances that Allain would
receive favorable treatment if he cooperated,32 which
defense counsel argued ‘‘raises questions in my mind
about whether this young man is coming into this court-
room with the intention to do anything other than save
himself.’’ With respect to the polygraph results, defense
counsel argued that Allain had failed the polygraph with
respect to questions about whether he had killed A.P.
or seen her body after she was dead, and the defendant
sought to offer those results not for their truth but for
the limited purpose of showing Allain’s motivation to
fabricate or tailor his trial testimony in order to curry
favor from the state. According to defense counsel,
because Allain failed the polygraph, he likely was moti-
vated more than ever to convince the state that the
defendant was the sole guilty party and that he had
nothing to do with A.P.’s murder. Defense counsel
stated to the court: ‘‘I understand the general rule
against the admissibility of polygraph exams and would
contend that if the finder of fact were made available
of the results, it do so with a limiting instruction that
[Allain’s] credibility is for them to determine.’’
The state took the position that none of the evidence
that the defense sought to present to the jury regarding
the polygraph examination was admissible under appli-
cable law as set forth in State v. Porter, supra, 241
Conn. 57. The state argued that, as with any witness,
the defendant could question Allain about whether his
testimony was the result of coercion or assurances from
the state. The state also argued that the defendant could
call Madden to testify. The state nonetheless agreed
with the defendant that the court needed to review the
pretest videotape prior to ruling on the motion in limine.
The court agreed and passed on ruling on the motion
until after it had viewed the videotapes.
On February 11, 2010, the day that Allain was sched-
uled to testify, the court returned to the issue of the
polygraph examination and the videotape evidence,
having had an opportunity to review the videotapes of
the pretest and the examination itself. The court heard
additional arguments from the defense and the state,
each of which essentially reasserted the arguments
made at the prior hearing. The state’s position remained
that the videotape of the pretest interview, like the
polygraph results themselves, was ‘‘polygraph evi-
dence’’ as that term was used by our Supreme Court
in Porter in reaffirming ‘‘our per se rule against the use
of polygraph evidence in Connecticut courts.’’ State v.
Porter, supra, 241 Conn. 115. The defense countered
that, at least with respect to the admission of the video-
tape of the pretest, this did not present a Porter issue
because the Porter holding was limited to the scientific
reliability and admissibility of polygraph results, and
because the court in Porter never considered or
addressed whether the existing bar should extend to
any reference to the term polygraph or to other types
of evidence related to the administration of poly-
graph tests.
In an oral ruling following argument, the court
refused to admit the videotape as evidence at trial.
The trial court appears to have agreed with the state’s
position that the videotape constituted inadmissible
polygraph evidence, reasoning as follows: ‘‘Well, I guess
in part it depends on how you define the phrase poly-
graph evidence, but Porter does indicate and I quote
that: Polygraph evidence should remain per se inadmis-
sible in all trial court proceedings in which the rules of
evidence apply, and for all trial purposes, in Connecticut
courts. [See id., 94.]
‘‘There’s specific reference in footnote 37 [of Porter]
which addresses the issue of using a polygraph. I’ll
quote from the footnote: Some jurisdictions that bar
the admission of polygraph evidence for the substantive
truth of the matter asserted do allow it to corroborate
or impeach a witness’ testimony. We see no reason for
this distinction. [See id., 94 n.37.]
‘‘So, I’m going to prohibit the use of the reference
to polygraph. But as the state has indicated, there’s
certainly no prohibition against . . . asking the wit-
ness questions on cross-examination that would get to
any promises or benefits that were made to him during
the course of that interview.’’ (Citations added; empha-
sis added.) We construe the court’s ruling as barring
any use of the videotape by the defendant and preclud-
ing him from mentioning the term ‘‘polygraph’’ for
any purpose.33
It is axiomatic that ‘‘[w]e review the trial court’s deci-
sion to admit [or to exclude] evidence, if premised on
a correct view of the law . . . for an abuse of discre-
tion.’’ State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633
(2007). Section 6-5 of the Connecticut Code of Evidence
provides: ‘‘The credibility of a witness may be
impeached by evidence showing bias for, prejudice
against, or interest in any person or matter that might
cause the person to testify falsely.’’ As indicated in
the official commentary to § 6-5, ‘‘[b]ecause evidence
tending to show a witness’ bias, prejudice or interest
is never collateral . . . impeachment of a witness on
these matters may be accomplished through the intro-
duction of extrinsic evidence, in addition to examining
the witness directly. . . . The scope and extent of
proof through the use of extrinsic evidence is subject
to the court’s discretion . . . .’’ (Citations omitted.)
See State v. Colton, 227 Conn. 231, 248, 630 A.2d 577
(1993) (‘‘Evidence tending to show the motive, bias or
interest of an important witness is never collateral or
irrelevant. It may be . . . the very key to an intelligent
appraisal of the testimony of the [witness].’’ [Internal
quotation marks omitted.]).
The defendant claims that the court’s decision to
exclude the videotape of the pretest interview was
premised, not on the court’s independent assessment
as to the probative value of the videotape as evidence
of bias weighed against its prejudicial impact, but on
an incorrect view of the law, namely, a misunder-
standing or misinterpretation of our Supreme Court’s
holding in State v. Porter, supra, 241 Conn. 57. Whether
the trial court’s decision was mandated by Porter pre-
sents a question of law over which our review is plenary.
See State v. Foster, 293 Conn. 327, 334, 977 A.2d 199
(2009).
In Porter, our Supreme Court considered whether
Connecticut should adopt the standard announced by
the United States Supreme Court in Daubert34 for evalu-
ating the admissibility of scientific evidence, and
‘‘whether Connecticut should abandon its traditional
per se rule that polygraph evidence is inadmissible at
trial’’; State v. Porter, supra, 241 Conn. 58; which the
defendant in Porter argued was inconsistent with the
Daubert standard. Id., 93. After an extensive discussion,
the court adopted the Daubert standard.
The court then turned to the polygraph issue. For
purposes of its analysis, the court assumed without
deciding that ‘‘polygraph evidence’’ would satisfy the
admissibility threshold established by Daubert, ulti-
mately concluding, however, that the prejudicial impact
of ‘‘polygraph evidence’’ greatly exceeds its probative
value. On the basis of that conclusion, the court reaf-
firmed our per se rule against the admissibility of such
evidence ‘‘in all trial proceedings in which the rules of
evidence apply, and for all trial purposes.’’ Id.
We are unconvinced that the videotape of the pretest
interview falls within the scope of the exclusionary rule
discussed in Porter. Although the court in Porter used
the term ‘‘polygraph evidence’’ throughout the opinion,
a term that, at first blush, seems to be rather broad in
scope, it is easily gleaned from the decision that the
term was not intended to have an expansive meaning
or to encompass any and all evidence tangential to or
referring to a polygraph examination. First, as the court
indicated, the issue before it was whether to abandon
the existing rule regarding the inadmissibility of the
results of polygraph tests. The court gave no indication
that it was considering whether to expand the scope
of that exclusion, only whether the rule should be main-
tained in its present iteration. Second, in identifying the
rule at issue, the court clearly set forth the scope of
the rule as follows: ‘‘This court has repeatedly held
that neither the results of a polygraph test nor the
willingness of a witness to take such a test is admissible
in Connecticut courts.’’ (Emphasis added; internal quo-
tation marks omitted.) State v. Porter, supra, 241 Conn.
93; accord State v. Duntz, 223 Conn. 207, 238, 613 A.2d
224 (1992) (‘‘[d]ue to the questionable accuracy of the
results of polygraph examinations, this court has con-
sistently held that they are not admissible either for
substantive or impeachment purposes’’ [emphasis
added]); State v. Plourde, 208 Conn. 455, 471, 545 A.2d
1071 (1988) (‘‘evidence of the defendant’s willingness
to take a polygraph test, which the defendant proffered
to rehabilitate her credibility, was properly excluded
because of the almost complete lack of probative value
[of such consent] and because of its self-serving charac-
ter’’ [emphasis added; internal quotation marks omit-
ted]), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L.
Ed. 2d 979 (1989). Thus, because the existing rule under
consideration in Porter was a per se prohibition against
the use of polygraph results or evidence of a witness’
willingness to take a polygraph test—usually the defen-
dant—we construe the Porter court’s use of the term
‘‘polygraph evidence’’ as a shorthand reference to those
two specific types of evidence, which were the only
evidence associated with the rule of admissibility
under review.
We are aware of no other appellate decision in which
our courts have been asked to directly address whether
a videotape of a pretest interview constitutes exclud-
able polygraph evidence. However, we note that in State
v. Davis, 135 Conn. App. 385, 42 A.3d 446, cert. denied,
305 Conn. 916, 46 A.3d 171 (2012), this court was asked
to consider whether the trial court had properly denied
a defendant’s motion for a continuance prompted by the
state’s late disclosure of inculpatory statements made
during a polygraph pretest interview. In concluding that
the defense had not been unfairly surprised by the evi-
dence because the defendant was aware of the video-
tape of the pretest interview and had asked the state
about it prior to trial, this court rejected the defendant’s
argument that ‘‘he believed that the tape was unusable
as evidence,’’ noting: ‘‘there is no reason that the sub-
stance of the statements made by the defendant during
that interview would not have been admissible evidence
at trial.’’ Id., 401. This is consistent with our view that
the videotape of Allain’s pretest interview is not per se
excludable polygraph evidence under Porter.
In the present case, use of the videotape of the pretest
interview to demonstrate motive, bias, or interest would
not have revealed the results of Allain’s polygraph test
nor was it being offered as evidence of Allain’s willing-
ness to take a polygraph examination. The state never
advanced either ground in support of excluding the
videotape from evidence. The videotape of the pretest
interview was not ‘‘polygraph evidence’’ and, accord-
ingly, did not fall within the scope of the per se exclu-
sionary rule reaffirmed by the court in Porter.
Additionally, nothing in the Porter decision, or in any
other case law of which we are aware, countenances
the trial court’s decision to preclude all evidentiary
references to the term ‘‘polygraph’’ itself.35 It was not
necessary for the court to preclude from evidence the
mere fact that a polygraph examination had occurred.
As we have already stated, the court needed only to
guard against the admission of the results of a polygraph
examination or of the examinee’s willingness to take
such an examination as evidence at trial.36 Indeed, to
the extent that the court was concerned that the jury
would draw some impermissible inference from the
videotape of the pretest interview regarding Allain’s
willingness to take a polygraph examination, the court
could have given the jury a limiting instruction as to
the appropriate use of this evidence.
Instead of excluding the videotape outright as ‘‘poly-
graph evidence,’’ the court was obligated to exercise
its legal discretion in deciding whether to permit the
jury to view the videotape by evaluating its probative
value against its prejudicial effect, in the same manner
that it would have considered any other extrinsic evi-
dence offered for the purpose of establishing motive
and bias of a witness. Because the court’s ruling regard-
ing the admissibility of the videotape of the pretest
interview was not made on the basis of a correct view
of the law but on the court’s mistaken belief that the
videotape was inadmissible ‘‘polygraph evidence,’’ the
court improperly excluded the videotape.
Furthermore, upon consideration of the entire
record, we do not have a fair assurance that the exclu-
sion of the videotape of the pretest interview did not
substantially affect the verdict. The defendant has the
burden of establishing harm from any nonconstitutional
evidentiary error.37 State v. Gallo, 135 Conn. App. 438,
443, 41 A.3d 1183 (2012), appeal dismissed, 310 Conn.
602, 78 A.3d 854 (2013). ‘‘[A] nonconstitutional error is
harmless when an appellate court has a fair assurance
that the error did not substantially affect the verdict.
. . . [O]ur determination that the defendant was
harmed by the trial court’s [evidentiary rulings] is
guided by the various factors that we have articulated
as relevant [to] the inquiry of evidentiary harmlessness
. . . such as the importance of the [evidence] . . .
whether the [evidence] was cumulative, the presence
or absence of evidence corroborating or contradicting
the [evidence] on material points, the extent of cross-
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case.’’ (Internal
quotation marks omitted.) Id., 443–44.
The state argues that even if the court’s ruling was
improper, the defendant has not met his burden of
establishing harm because the court’s ruling could not
have substantially affected the verdict. According to
the state, the court only precluded the defendant from
making references to the polygraph test itself, and,
therefore, the defendant could, and did, question Allain
about any motivations, inducements, or promises made
to him prior to his testifying. The state also suggests
that its case against the defendant was strong. The state
contends that although the evidence of A.P.’s death was
largely circumstantial, it was overwhelming. The state
also asserts that ‘‘evidence of motive, means and oppor-
tunity was abundant,’’ and notes that the defendant
confessed to the murder to at least four different indi-
viduals. We disagree that the defendant has failed to
demonstrate harm under the circumstances of this case.
The videotape of the pretest interview was offered
for the limited and proper purpose of showing Allain’s
motivation for testifying in favor of the state against
the defendant. A court commits reversible error when-
ever it unduly restricts a defendant’s right to present
evidence that tends to show motive, interest, bias, or
prejudice on the part of a key government witness.
State v. Luzzi, 147 Conn. 40, 46, 156 A.2d 505 (1959);
see also State v. Colton, supra, 227 Conn. 250. The tape
shows Madden and other officers repeatedly trying to
convince Allain that it would be in his best interest to
testify favorably for the state, indicating that they
wanted him ‘‘on the team’’ and suggesting that if he
cooperated in getting a conviction of the defendant, he
would receive favorable treatment and likely escape
any criminal charges himself. Moreover, from the video-
taped interview, the jury would have had the opportu-
nity to more fully assess Allain’s mindset in agreeing
to testify against the defendant, including his significant
concerns regarding his fear of being charged with vio-
lating his probation. Additionally, the jury could reason-
ably conclude from the videotape that Madden
attempted to shape Allain’s story about the defendant’s
actions on May 29, 1996, in order to make it more
plausible.
It is undisputed that Allain’s trial testimony was an
integral component, if not the linchpin, of the state’s
case against the defendant. He was the only witness
with any direct knowledge of the events that led up to
A.P.’s disappearance and his testimony corroborated
the reliability of the defendant’s alleged jailhouse con-
fessions. Because the state’s case against the defendant
turned in large part on Allain’s testimony in order to
secure a conviction, the jury’s assessment of Allain’s
credibility was crucial. Accordingly, any evidence of
Allain’s bias and motivation to tailor his testimony in
favor of the prosecution’s case was critically important
to the defense, and the videotape of the pretest inter-
view was the most persuasive evidence available to
the defendant because it reveals Allain’s demeanor and
concerns in living color.
The state correctly notes that the defendant was not
precluded from raising during cross-examination the
fact that Allain had been interviewed by the police or
from exploring whether the state had offered Allain any
incentives to testify against the defendant or pressured
him to testify in a particular way. Our review of Allain’s
cross-examination shows that the defense challenged
Allain’s credibility by pointing out evidence tending to
demonstrate that Allain had changed or augmented
aspects of his story on a number of occasions. Cross-
examination highlighted a number of details that he
testified to on direct examination that he never dis-
closed in his prior written statements. The defense ques-
tioned Allain about his ‘‘interview’’ with Madden and,
without mentioning that it occurred prior to a polygraph
examination, noted the fact that the police believed he
was not telling the truth about his involvement in A.P.’s
murder, suggesting that Allain had incentive to cooper-
ate with the state and implicate the defendant in order
to keep the investigation away from him.
No cross-examination, however, could have substi-
tuted for or been as impactful as to Allain’s motive and
bias as the direct evidence afforded by the videotape.
Although the defendant was allowed to question Allain
regarding his ‘‘interview’’ with Madden, the defense was
precluded, among other things, from revealing the con-
text in which that interview occurred. That context was
significant. The videotape reveals that the law enforce-
ment officers used the context of the polygraph exami-
nation process to pressure Allain to inculpate the
defendant in the (lengthy) pretest interview in the fol-
lowing way. Madden emphasized to Allain that the poly-
graph examination would definitively determine
whether he was going to be part of the state’s ‘‘team’’
that would ‘‘get’’ the defendant, ‘‘the big fish’’ in the
case, and possibly receive a slap on the wrist himself,
or, conversely, whether he would be fully prosecuted
like the noncooperating witnesses in the Measles case.
In our view, the videotape tends to show, among other
things, the subtle but significant pressure placed on
Allain by law enforcement through the means of the
specific factual context in which the pretest interview
occurred. No amount of generic questioning of Allain
on cross-examination, without clarifying this important
context, would show the precise degree, nature, and
effect of both the inducements and pressure on Allain
to inculpate the defendant that the videotape reveals.
In other words, exclusion of the videotape and all refer-
ences to polygraph deprived the defense of its best
opportunity to show the degree of pressure, induce-
ments and manipulation exerted on Allain. We are con-
vinced that had the jury been given an opportunity
to view the pretest interview, the evidence may have
significantly altered how the jury assessed Allain’s testi-
mony as a whole, possibly raising reasonable doubt
about the guilt of the defendant. The defendant, there-
fore, is entitled to a new trial.
Our conclusion that a new trial is warranted because
the court improperly excluded evidence of bias is dis-
positive of the defendant’s appeal, thus eliminating the
need to address the remainder of the defendant’s evi-
dentiary claims. Nevertheless, because the defendant’s
claims that the court improperly admitted prior miscon-
duct evidence and improperly precluded the defendant
from presenting expert testimony concerning the relia-
bility of jailhouse informants are likely to arise again
on remand, we also address those claims. See State v.
Arroyo, 284 Conn. 597, 601 n.3, 935 A.2d 975 (2007).
III
ADMISSION OF PRIOR MISCONDUCT
The defendant claims that, on two occasions, the
court improperly admitted unduly prejudicial evidence
of prior misconduct. First, the defendant challenges
the court’s admission of testimony by K.S., a former
girlfriend of Allain, that the defendant choked and raped
her six months prior to the rape and murder of A.P.
Second, the defendant challenges the admission of testi-
mony by Ching that, during his time as the defendant’s
cellmate, the defendant asked Ching for his opinion
about whether the defendant should ‘‘do in’’ Allain. The
state responds that, in each instance, the court properly
admitted the challenged testimony under a recognized
exception to the general rule precluding evidence of a
defendant’s prior misconduct or on other grounds. See
Conn. Code Evid. § 4-5. For the reasons we will set
forth, we agree with the state that the court properly
admitted the challenged testimony.38
Before turning to a discussion of each of the defen-
dant’s claims, we set forth the legal principles and stan-
dard of review generally applicable to the admissibility
of evidence of prior misconduct. Section 4-5 of the
Connecticut Code of Evidence provides: ‘‘(a) Evidence
of other crimes, wrongs or acts of a person is inadmissi-
ble to prove the bad character, propensity, or criminal
tendencies of that person except as provided in subsec-
tion (b).
‘‘(b) Evidence of other sexual misconduct is admissi-
ble in a criminal case to establish that the defendant
had a tendency or a propensity to engage in aberrant and
compulsive sexual misconduct if: (1) the case involves
aberrant and compulsive sexual misconduct; (2) the
trial court finds that the evidence is relevant to a
charged offense in that the other sexual misconduct is
not too remote in time, was allegedly committed upon
a person similar to the alleged victim, and was otherwise
similar in nature and circumstances to the aberrant and
compulsive sexual misconduct at issue in the case; and
(3) the trial court finds that the probative value of the
evidence outweighs its prejudicial effect.
‘‘(c) Evidence of other crimes, wrongs or acts of
a person is admissible for purposes other than those
specified in subsection (a), such as to prove intent,
identity, malice, motive, common plan or scheme,
absence of mistake or accident, knowledge, a system
of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony.
‘‘(d) In cases in which character or a trait of character
of a person in relation to a charge, claim or defense is
in issue, proof shall be made by evidence of specific
instances of the person’s conduct.’’
Under this rule, evidence of a defendant’s prior mis-
conduct generally is inadmissible to show that a defen-
dant committed the crime charged or to show that the
defendant is predisposed to commit that crime. Never-
theless, otherwise inadmissible prior misconduct evi-
dence may be admitted if it is offered, not for propensity
purposes, but ‘‘to prove intent, identity, malice, motive,
a system of criminal activity or the elements of a crime.’’
(Internal quotation marks omitted.) State v. Pena, 301
Conn. 669, 673, 22 A.3d 611 (2011).
Furthermore, our Supreme Court has explained that
courts must apply a more liberal standard of admissibil-
ity in cases involving the admission of prior sexual
misconduct. See State v. Smith, supra, 313 Conn. 334.
‘‘Under this standard, prior misconduct evidence may
be admitted to establish propensity in sex related cases
if certain conditions are met. . . . As we explained in
[State v. DeJesus, supra, 288 Conn. 470–74], evidence
of uncharged sexual misconduct is admissible only if
it is relevant to prove that the defendant had a propen-
sity or a tendency to engage in the type of aberrant and
compulsive criminal sexual behavior with which he or
she is charged. Relevancy is established by satisfying
the liberal standard pursuant to which evidence pre-
viously was admitted under the common scheme or
plan exception. Accordingly, evidence of uncharged
misconduct is relevant to prove that the defendant had a
propensity or a tendency to engage in the crime charged
only if it is: (1) . . . not too remote in time; (2) . . .
similar to the offense charged; and (3) . . . committed
upon persons similar to the prosecuting witness.’’
(Internal quotation marks omitted.) State v. Smith,
supra, 334–35. This ‘‘exception to the rule barring pro-
pensity evidence applies whenever the evidence estab-
lishes that both the prior misconduct and the offense
with which the defendant is charged were driven by an
aberrant sexual compulsion, regardless of whether the
prior misconduct or the conduct at issue resulted in
sexual offense charges.’’ (Emphasis added.) State v.
Snelgrove, 288 Conn. 742, 760, 954 A.2d 165 (2008).
‘‘[T]o minimize the risk of undue prejudice to the defen-
dant, the admission of evidence of uncharged sexual
misconduct under the limited propensity exception
. . . must be accompanied by an appropriate caution-
ary instruction to the jury.’’ State v. DeJesus, supra, 474.
‘‘The admission of evidence of prior uncharged mis-
conduct is a decision properly within the discretion of
the trial court. . . . [E]very reasonable presumption
should be given in favor of the trial court’s ruling. . . .
[T]he trial court’s decision will be reversed only where
abuse of discretion is manifest or where an injustice
appears to have been done. . . . [T]he burden to prove
the harmfulness of an improper evidentiary ruling is
borne by the defendant . . . [who] must show that it
is more probable than not that the erroneous action of
the court affected the result.’’ (Internal quotation marks
omitted.) State v. Heck, 128 Conn. App. 633, 638, 18
A.3d 673, cert. denied, 301 Conn. 935, 23 A.3d 728 (2011).
In deciding whether evidence of prior misconduct
falls within any of the exceptions to the general rule
prohibiting the admission of such evidence, we have
employed a two part analysis. See State v. Kalil, 314
Conn. 529, 540, 107 A.3d 343 (2014). ‘‘First, the evidence
must be relevant and material to at least one of the
circumstances encompassed by the exceptions. Sec-
ond, the probative value of such evidence must out-
weigh the prejudicial effect of the other crime
evidence.’’ (Internal quotation marks omitted.) Id.
‘‘[R]egardless of the nature or the purpose for which
evidence is being offered, this court has identified four
factors relevant to determining whether the admission
of otherwise probative evidence is unduly prejudicial.
These are: (1) where the facts offered may unduly
arouse the [jurors’] emotions, hostility or sympathy, (2)
where the proof and answering evidence it provokes
may create a side issue that will unduly distract the
jury from the main issues, (3) where the evidence
offered and the counterproof will consume an undue
amount of time, and (4) where the defendant, having no
reasonable ground to anticipate the evidence, is unfairly
surprised and unprepared to meet it.’’ (Internal quota-
tion marks omitted.) State v. Hill, 307 Conn. 689, 698,
59 A.3d 196 (2013). With those principles in mind, we
now turn to the specific claims raised by the defendant.
A
The defendant first claims that the court improperly
allowed K.S., a former girlfriend of Allain’s, to testify
that the defendant had choked and raped her in Novem-
ber, 1995. We disagree.
The following additional facts are relevant to this
aspect of the defendant’s claim. In November, 1995,
K.S. was thirteen years old and a girlfriend of Allain.
Allain introduced K.S. to the defendant. On November
26, 1995, at approximately 10 p.m., K.S. was picked up
by the defendant in his pickup truck. She went with the
defendant to his trailer, which was behind the homes of
the defendant’s parents, believing that Allain would join
them later. The defendant provided K.S. with beer and
whiskey, which she drank while she waited for Allain to
arrive. The defendant received a call on his cell phone,
which he told K.S. was from Allain, who could not leave
home to join them. K.S. asked to leave at that point,
but the defendant told her that she was not going any-
where. She tried to open the trailer door to leave, but
it was locked. At that point, the defendant pushed K.S.
over to his bed, where he choked and raped her. At
about 5 a.m. the defendant left the trailer to make a
phone call in his parents’ house, threatening K.S. that
he would hunt her down and kill her if she tried to
leave the trailer. After the defendant left, K.S., fearing
that this might be her only opportunity ‘‘to make it out
alive,’’ ran to the nearest home and called the police
and her father. The defendant later was arrested.
Prior to trial, the state filed a motion in limine giving
notice of its intent to call K.S. as a witness who would
testify about being raped by the defendant. The state
primarily argued that her testimony was admissible to
show a common plan or scheme, although the state also
argued that it was admissible to show motive, intent,
identity and to corroborate crucial prosecution testi-
mony. The defendant filed a written opposition to the
motion in limine arguing that the testimony was not
relevant to any exception to the general rule barring
the admission of prior misconduct evidence and, alter-
natively, that the evidence was far more prejudicial than
probative. Prior to ruling on the admissibility of K.S.’s
testimony, K.S. testified about the prior rape to the
court outside the presence of the jury. Following that
testimony, and after hearing additional oral argument,
the court ruled that K.S.’s testimony was admissible.
The court, citing State v. Snelgrove, supra, 288 Conn.
760, first determined that because the defendant was
charged with the capital felony of causing the death of
A.P. in the course of committing a sexual assault in the
first degree, this case properly was viewed as a sex
crime case despite the state’s not having charged the
defendant directly with a sexual assault. On the basis
of that determination, the court found that the more
liberal test set forth in State v. DeJesus, supra, 288
Conn. 418, applied to the admission of K.S.’s testimony.
Applying that test, the court found that evidence of the
defendant’s sexual assault of K.S. was relevant to the
defendant’s propensity to engage in aberrant and crimi-
nal sexual behavior because it was not too remote in
time, the incident was similar in many ways to the
sexual assault that led to A.P.’s murder, and it was
committed upon a similar person. The court also found
that the evidence was more probative than prejudicial.
On the basis of those findings, the court ruled that K.S.’s
testimony was admissible for propensity purposes and
instructed the jury that, if it believed the testimony, the
jury could consider it for ‘‘its bearing on any matter to
which [the jury found] it relevant, including, specifi-
cally, motive and whether the defendant acted under a
common scheme or plan.’’ After K.S. testified to the
jury about the 1995 incident, the court repeated its
limiting instruction.
On the basis of our review of the record, we conclude
that the court properly exercised its discretion in admit-
ting K.S.’s testimony. Our review is guided by subsec-
tion (b) of § 4-5 of the Connecticut Code of Evidence,
set forth previously, which codifies the exception, first
recognized in DeJesus, that evidence of prior sexual
misconduct may be admitted to show a defendant’s
propensity to engage in similar misconduct. Before per-
mitting K.S. to testify, the court made all necessary
determinations regarding each of the three elements
set forth in the rule necessary to admit evidence of
prior sexual misconduct for propensity purposes.
The first requirement of the rule pertains to the appli-
cability of the exception and requires that the court
determine whether the case in which the prior miscon-
duct evidence is offered ‘‘involves aberrant and compul-
sive sexual misconduct . . . .’’ Conn. Code Evid. § 4-
5 (b) (1). The court properly determined that such con-
duct was involved in the present case. As the trial court
indicated, that determination does not hinge on whether
the defendant was charged with a sexual assault in the
present case, but only on whether the prior misconduct
and the offense presently charged each were ‘‘driven
by an aberrant sexual compulsion, regardless of
whether the prior misconduct or the conduct at issue
resulted in sexual offense charges.’’ (Internal quotation
marks omitted.) State v. Johnson, 289 Conn. 437, 454,
958 A.2d 713 (2008), overruled in part on other grounds
by State v. Payne, 303 Conn. 538, 548, 34 A.3d 370
(2012); State v. Snelgrove, supra, 288 Conn. 760. In the
present case, the defendant, in furtherance of the capital
felony for which he was charged, was alleged to have
used a teenage boy to isolate a teenage girl and then
raped and choked her. Such behavior—followed by
threats of death in the case of K.S. and murder in the
case of A.P.—constituted aberrant and potentially com-
pulsive sexual misconduct sufficient to support the
court’s initial determination regarding the applicability
of the propensity exception in this case.
Second, the court was required to determine if K.S.’s
testimony about the prior sexual misconduct was rele-
vant to the offense currently charged. The relevancy
requirement is met if the prior sexual misconduct ‘‘is
not too remote in time, was allegedly committed upon
a person similar to the alleged victim, and was otherwise
similar in nature and circumstances to’’ the misconduct
in the present case. Conn. Code Evid. § 4-5 (b) (2). The
court properly found that each of these requirements
was met. The defendant’s rape of K.S. occurred just six
months prior to the sexual assault and murder of A.P.,
and, thus, clearly was not too remote in time. See State
v. Antonaras, 137 Conn. App. 703, 716, 49 A.3d 783, and
cases cited therein (holding even nine year and ten year
gaps not too remote in time), cert. denied, 307 Conn.
936, 56 A.3d 716 (2012). The court also properly deter-
mined that the sexual assaults were committed upon
similar persons on the basis of its findings that ‘‘these
were both very young girls—one, thirteen; one fifteen—
from the same town who both were girlfriends of
[Allain].’’ Last, the sexual assaults at issue were other-
wise sufficiently similar in nature and circumstances
for the reasons cited by the court, including that both
incidents involved Allain, who had arranged for the
young victims to meet the defendant, both incidents
occurred late at night, the defendant had provided alco-
hol to both victims, both victims were driven by the
defendant to a secluded location where they were both
sexually assaulted and choked by the defendant. See
State v. Smith, supra, 313 Conn. 337 (concluding trial
court properly determined charged crime and
uncharged misconduct sufficiently similar to satisfy
DeJesus exception because both acts involved sexual
assaults in which victim was choked by attacker).
Finally, the trial court properly considered whether
the probative value of K.S.’s testimony outweighed its
prejudicial effect before admitting K.S.’s testimony, and
provided the jury with a limiting instruction that was
based upon the instruction set forth in DeJesus, the
purpose of which was to limit any prejudicial effect.
State v. DeJesus, supra, 288 Conn. 474 and n.36. It is well
settled that ‘‘[t]he primary responsibility for conducting
the balancing test to determine whether the evidence
is more probative than prejudicial rests with the trial
court, and its conclusion will be disturbed only for a
manifest abuse of discretion. . . . [Thus, our] review
of such rulings is limited to the questions of whether
the trial court correctly applied the law and [whether
it] reasonably could have reached the conclusion that
it did.’’ (Citations omitted; internal quotation marks
omitted.) State v. James G., 268 Conn. 382, 396, 844
A.2d 810 (2004). Although the defendant claims that the
admission of K.S.’s testimony ‘‘created a very strong
likelihood that the jury’s emotions were unduly roused,’’
and that this prejudicial effect outweighed any proba-
tive value, we are unconvinced. Clearly, given the simi-
larities between the sexual assaults of K.S. and A.P.,
K.S.’s testimony was highly probative. In a case in which
the defendant is accused of brutally sexually assaulting
and murdering a young woman and disposing of her
body, it is unlikely that the addition of K.S.’s testimony
would have unduly roused the emotions or passions of
the jury further. Nor did the testimony consume an
unreasonable amount of time, raise any distracting side
issues, or surprise the defense. On the basis of our
review, we cannot say that the court abused its discre-
tion by admitting the testimony of K.S.
B
The defendant also contends that the court improp-
erly permitted Ching to testify that the defendant had
asked him his opinion on whether the defendant should
kill Allain. The state argued at trial that this was not
evidence of uncharged misconduct, and, therefore, was
not improperly admitted as such and argues on appeal
that the court properly admitted the testimony as rele-
vant evidence of the defendant’s consciousness of guilt.
We agree with the state on both points and, thus, reject
the defendant’s claim.
The following additional facts are relevant to this
claim. Ching testified at trial that he had shared a cell
with the defendant for two weeks at the Corrigan-Rad-
gowski Correctional Center in 2007. During that time,
the defendant told Ching that he and a younger man
had taken a fifteen year old girl out on his boat, gotten
her drunk, and raped her. Ching did not recall the defen-
dant giving him the name of either the girl or the young
man. Ching testified that the defendant had admitted
to killing the girl after she ‘‘started flipping out,’’ and
that ‘‘[t]he young man that was with him refused to
cooperate in helping with this’’ and ‘‘he killed her on
his own and hid the body.’’
When the state inquired during its direct examination
of Ching whether the defendant had talked to Ching
about the young man, Ching responded: ‘‘He asked my
opinion if I thought he should, you know, do the guy
in . . . .’’ After the state followed up by asking Ching
how he interpreted that inquiry, defense counsel
objected on relevancy grounds, arguing that although
what his client said to Ching was admissible, Ching’s
interpretation of what he said was not. The court over-
ruled the objection and counsel then asked to be heard
outside the presence of the jury. After the jury was
excused, defense counsel argued that although the state
had disclosed its intent to offer evidence about the
defendant’s prior sexual assault of K.S., it had never
disclosed that it intended to present evidence that the
defendant had discussed killing a witness. Defense
counsel moved for a mistrial, arguing that it was highly
prejudicial to have this information, which he described
as evidence of uncharged misconduct, blurted out to
the jury absent any prior notice to the defendant. The
state responded that it did not believe the information
disclosed was uncharged misconduct, and, therefore,
they had no obligation to disclose it. The state viewed
the testimony as part of the conversation between the
inmates and was not claiming that the defendant took
any affirmative steps to kill anyone or to make anyone
fear that they were going to be killed. The court took
a brief recess during which the court met with counsel
in chambers off the record.
Following that recess, the court indicated that the
parties had agreed to a further proffer regarding the
witness. In response to questions by the state, outside
the presence of the jury, Ching disclosed that he had
interpreted the defendant’s inquiry about ‘‘doing’’ the
young man as asking Ching’s opinion about whether he
should kill the young man who was with him on the
boat. Ching further disclosed that he had told the defen-
dant that, if he was in the defendant’s situation, he
would do so, and that this same conversation had been
repeated three or four times over the course of the two
weeks that Ching was housed with the defendant.
After hearing additional argument from both sides,
the court denied the defendant’s motion for a mistrial
and ruled that Ching’s testimony was admissible, treat-
ing it as prior misconduct evidence, but ruling that it
was nonetheless admissible because it was relevant to
corroborate crucial prosecution testimony and because
its probative value outweighed any prejudicial effect.
When the jury returned, the court gave a limiting
instruction in which it indicated that the state had
offered evidence of uncharged misconduct, that it was
admitted not to prove the defendant’s bad character or
tendency to commit criminal acts, but only to corrobo-
rate crucial prosecution testimony, and, that if the jury
believed the testimony, it was to consider the evidence
only for that purpose and not as evidence demonstrating
a propensity to commit the crimes charged. The exami-
nation of Ching continued. The state never asked any
additional questions regarding the defendant’s inquiries
about ‘‘doing in’’ Allain. Defense counsel revisited the
topic on cross-examination, getting Ching to admit that
he had never mentioned that aspect of his conversation
with the defendant in his prior statements to the police,
and that he had first brought the issue to the attention
of the state only a few weeks ago.
The defendant contends on appeal that Ching’s testi-
mony that the defendant had mused about whether
he should have Allain killed constituted evidence of
uncharged misconduct that was not previously dis-
closed to the defense, and that the court improperly
denied its motion for a mistrial claiming unfair surprise
and improper admission of the testimony for corrobora-
tive purposes. According to the defendant, nothing
about the challenged portion of Ching’s testimony cor-
roborated the state’s allegations that the defendant had
sexually assaulted, kidnapped, or killed A.P., and, even
assuming that Ching’s testimony was true, it tended to
show only that the defendant was angry at Allain for
falsely accusing him of murder.
At trial, in addition to arguing that Ching’s statement
was admissible for the purpose of corroborating crucial
prosecution testimony, the state argued, in the alterna-
tive, that the testimony did not constitute evidence of
misconduct. The court rejected that argument. In cham-
bers, the state also advanced the argument that Ching’s
statement was admissible as evidence of consciousness
of guilt. Although the state did not pursue that ground
in its arguments before the trial court, in its appellate
brief, the state urges us to conclude that Ching’s testi-
mony was relevant to show the defendant’s conscious-
ness of guilt and thus admissible on that alternate
ground.
Having reviewed the record and the arguments of the
parties, we conclude that the trial court incorrectly
labeled Ching’s testimony as uncharged misconduct
committed by the defendant. Ching’s statement indi-
cated only that the defendant had spoken to Ching about
the possibility of killing Allain. Although such thoughts
or ideations may certainly have reflected poorly upon
the defendant in the eyes of the jury, without more,
they do not constitute ‘‘a clear expression of prior mis-
conduct on the part of the defendant.’’ State v. Gilbert
I., 106 Conn. App. 793, 799, 944 A.2d 353 (vague refer-
ence to fact that defendant and babysitter ‘‘did some-
thing and Mom kicked [the babysitter] out’’ did not
constitute evidence of prior uncharged misconduct
[internal quotation marks omitted]), cert. denied, 287
Conn. 913, 950 A.2d 1289 (2008). Accordingly, there
is no merit to the defendant’s argument that Ching’s
statement was inadmissible evidence of prior mis-
conduct.
‘‘[W]e are mindful of our authority to affirm a judg-
ment of a trial court on a dispositive alternate ground
for which there is support in the trial court record.’’
(Internal quotation marks omitted.) State v. Vines, 71
Conn. App. 359, 366–67, 801 A.2d 918, cert. denied, 261
Conn. 939, 808 A.2d 1134 (2002). Having concluded that
Ching’s statement did not constitute evidence of
uncharged misconduct, we nevertheless agree with the
state that Ching’s statement constituted evidence of
consciousness of guilt and therefore was admissible on
that basis.
‘‘[E]vidence is admissible to prove consciousness of
guilt if, first, it is relevant, and second, its probative
value outweighs its prejudicial effect.’’ State v. Hill,
supra, 307 Conn. 698. ‘‘In a criminal trial, it is relevant
to show the conduct of an accused, as well as any
statement made by him subsequent to the alleged crimi-
nal act, which may fairly be inferred to have been influ-
enced by the criminal act. . . . The state of mind which
is characterized as guilty consciousness or conscious-
ness of guilt is strong evidence that the person is indeed
guilty . . . and, under proper safeguards . . . is
admissible evidence against an accused.’’ (Internal quo-
tation marks omitted.) State v. Camacho, 92 Conn. App.
271, 294, 884 A.2d 1038 (2005), cert. denied, 276 Conn.
935, 891 A.2d 1 (2006). ‘‘[T]he fact that ambiguities or
explanations may exist which tend to rebut an inference
of guilt does not render [such] evidence . . . inadmis-
sible but simply constitutes a factor for the jury’s con-
sideration. . . . The fact that the evidence might
support an innocent explanation as well as an inference
of a consciousness of guilt does not make [the admis-
sion of evidence of consciousness of guilt] erroneous.
. . . Moreover, [t]he court [is] not required to enumer-
ate all the possible innocent explanations offered by the
defendant.’’ (Internal quotation marks omitted.) State v.
Coccomo, 302 Conn. 664, 670, 31 A.3d 1012 (2011).
Here, the evidence was relevant because if the jury
believed Ching’s testimony that the defendant had
asked him for his opinion about whether to ‘‘do in’’
Allain, it reasonably could have inferred that the inquiry
was directly related to the charges pending against the
defendant and that the defendant did not want Allain
testifying against him. Threats by a defendant against
a witness generally are deemed admissible ‘‘either on
the theory that such conduct is inconsistent with the
defendant’s claim of innocence or on the theory that
the making of such threats evinces a consciousness of
guilt.’’ State v. Walker, 214 Conn. 122, 129, 571 A.2d
686 (1990). Although the defendant in the present case
stopped short of directly threatening a witness, a jury
nonetheless reasonably could have inferred that his
statement to Ching constituted circumstantial evidence
of his desire to keep his criminal activities from being
revealed and, thus, his consciousness of guilt. In addi-
tion to being relevant evidence, nothing in the record
before us leaves us with the impression that Ching’s
statement was so unduly prejudicial as to overcome its
probative value. The jury had already heard evidence
about the defendant’s violent nature. Ching’s statement
that the defendant had been thinking about killing Allain
was therefore unlikely to have unduly aroused the
jurors’ emotions. We accordingly reject the defendant’s
claim that Ching’s statement was improperly admitted.
IV
EXCLUSION OF EXPERT TESTIMONY
Finally, we turn to the defendant’s claim that the
court improperly excluded expert testimony regarding
the use and effect of informant testimony. According to
the defendant, because the case against him depended
heavily upon the testimony of jailhouse informants,
some if not all of whom benefited from cooperating
with the state, the court should have permitted him to
present expert testimony to the jury concerning the
general unreliability of such evidence. The defendant
contends that the information that he sought to present
is not within the knowledge of the average juror, nor
was it supplied to them through other evidence or by
the court’s instructions. The defendant claims that the
court not only abused its discretion by precluding the
expert testimony, but that it also violated his right to
due process, and his rights under the sixth amendment
to confront witnesses and to present a defense.
In response, the state argues that the court properly
excluded the expert testimony because the subject mat-
ter of the testimony was within the ken of the average
juror and because allowing the testimony would have
invaded the province of the jury, namely, its exclusive
function as trier of fact to assess the credibility of wit-
nesses. We agree with the defendant that the court
abused its discretion by precluding the expert testimony
offered by the defendant. We hold that expert testimony
concerning the reliability of informant testimony should
be admitted if the court on remand determines that
the expert is qualified and the proffered testimony is
relevant to the specific issues in the case.39
The following additional facts are relevant to our
resolution of this claim. The defense disclosed Alexan-
dra Natapoff, a professor at Loyola Law School, as a
witness who the defendant intended to call regarding
the general unreliability of informant testimony. The
state filed a motion in limine to exclude Natapoff’s
testimony, arguing that (1) the substance of the antici-
pated testimony concerned matters within the general
knowledge of jurors, and (2) the witness’ opinions
would invade the exclusive province of the jury to
assess the credibility of witnesses. The state also
argued, in essence, that Natapoff’s testimony was
unnecessary because the state anticipated that the court
would instruct the jury concerning testimony by jail-
house informants in accordance with our Supreme
Court’s mandate in State v. Arroyo, 292 Conn. 558, 569–
71, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130
S. Ct. 1296, 175 L. Ed. 2d 1086 (2010).
In Arroyo, our Supreme Court acknowledged the
growing recognition by the legal community that jail-
house informant testimony is inherently unreliable and
is a major contributor to wrongful convictions through-
out this country. Id., 567, 569. The Supreme Court noted:
‘‘In recent years, there have been a number of high
profile cases involving wrongful convictions based on
the false testimony of jailhouse informants. See, e.g., R.
Bloom, ‘Jailhouse Informants,’ 18 Crim. Just. 20 (Spring
2003). Several of these cases resulted in formal investi-
gations that shed much needed light on the extensive
use of jailhouse informants in criminal prosecutions,
an issue that previously had been ‘largely a closeted
aspect of the criminal justice system.’ Id. One such
investigation, by a grand jury in Los Angeles [C]ounty,
California, revealed an ‘appalling number of instances
of perjury or other falsifications to law enforcement
. . . .’ (Internal quotation marks omitted.) C. Sherrin,
‘Jailhouse Informants, Part I: Problems with their Use,’
40 Crim. L. Q. 106, 113 (1997). The grand jury also
‘found that a particularly clever informant realizes that
a successful performance on the witness stand is
enhanced if it appears he or she is not benefiting from
the testimony. . . . These informants wait until after
they’ve testified to request favors—a request that is
generally answered. . . . And, because the reward is
not offered before the testimony, the jury has no way
to measure the informant’s motivation to fabricate testi-
mony, as the prosecutor . . . is under no obligation to
disclose nonexisting exculpatory evidence.’ . . . R.
Bloom, supra, 18 Crim. Just. 24. Thus, the expectation
of a ‘[r]eward for testifying is a systemic reality’; id.;
even where the informant has not received an explicit
promise of a reward. In addition, several commentators
have pointed out that jailhouse informants frequently
have motives to testify falsely that may have nothing
to do with the expectation of receiving benefits from
the government.’’ (Footnotes omitted.) State v. Arroyo,
supra, 292 Conn. 567–69. In its discussion, the court
also recognizes Professor Natapoff’s expertise in this
area by citing to her research. Id., 568 n.8.
Accordingly, our Supreme Court mandated that,
going forward, trial courts in this state must give a
special credibility instruction to the jury any time infor-
mant testimony was used, regardless of whether the
informant had been promised any benefit for his or her
testimony. Id., 569. Specifically, the court indicated that
trial courts should instruct the jury ‘‘that the informant’s
testimony must be reviewed with particular scrutiny
and weighed . . . with greater care than the testimony
of an ordinary witness. . . . In addition, the trial court
may ask the jury to consider: the extent to which the
informant’s testimony is confirmed by other evidence;
the specificity of the testimony; the extent to which the
testimony contains details known only by the perpetra-
tor; the extent to which the details of the testimony
could be obtained from a source other than the defen-
dant; the informant’s criminal record; any benefits
received in exchange for the testimony; whether the
informant previously has provided reliable or unreliable
information; and the circumstances under which the
informant initially provided the information to the
police or the prosecutor, including whether the infor-
mant was responding to leading questions.’’ (Citation
omitted; internal quotation marks omitted.) Id., 570–71.
Prior to the court’s hearing argument on whether to
exclude Natapoff as a witness, Natapoff testified out-
side the presence of the jury. After testifying as to her
educational background and professional credentials,
which included authoring various scholarly works and
testifying before Congress on the subject of infor-
mants,40 Natapoff testified about the inherent problems
associated with the use of jailhouse informants.
According to Natapoff, the manner in which informants
are used in the criminal justice system is largely unregu-
lated and secretive, and the public has very little knowl-
edge about the process. She testified that jailhouse
informants are known to fabricate information because
they are aware that they can barter with the state for
favorable treatment on the basis of such information.
In particular, Natapoff stated: ‘‘We have evidence of
collusion between jailhouse informants in which infor-
mants cooperate in order to create stories that they
corroborate in order to persuade the government to
use that information. We know that sometimes infor-
mants and criminal offenders can be very entrepreneur-
ial about coming up with information, knowing that the
system will likely reward them in some way.’’ The hope
for favorable treatment also provides a strong incentive
for informants to search out any source of information,
reliable or not, so that they can trade that information
to the authorities.
Natapoff also testified about studies that demonstrate
that the usual cautionary instructions given to jurors
about informant testimony generally are not effective
and that even if jurors are made aware of and cautioned
about an informant’s compensation or other motivation
to fabricate testimony, jurors are ill-equipped to accu-
rately evaluate an informant’s credibility and often will
accept the testimony as true. One study published by
Northwestern Law School, discussed by Natapoff dur-
ing her testimony, indicated that approximately 45 per-
cent of all the wrongful capital convictions identified
in this country were the direct result of an informant
who was lying. According to Natapoff, informants’ sto-
ries are often difficult to corroborate or to contradict,
especially in cases in which the informant’s testimony
is the central evidence against the defendant.
On cross-examination, the state questioned Natapoff
about the fact that permitting experts to testify before
juries was not among the reforms Natapoff had pro-
posed in her book and asked Natapoff what information
she believed a jury could not be expected to have knowl-
edge of based upon common sense alone. Natapoff
responded as follows: ‘‘I think that a lay person on a jury
cannot know the extent of the benefits and expectations
that an informant in our system would reasonably
expect to get; that a promise or an understanding made
by a police officer or prosecutor to an informant, and
the history of the use of informants in our jails and
prisons give informants and law enforcement knowl-
edge about benefits that a lay person couldn’t under-
stand and wouldn’t see from the outside. . . . I think
a lay person would not expect or could not be expected
to understand how much effort informants sometimes
put into coming up with information from stealing files
from other inmates to calling outside sources and ask-
ing for resources from the newspapers and media from
outside sources. They couldn’t be expected to under-
stand the culture in jails; the understanding that this
entrepreneurial approach to information is expected.
A lay person on a jury could not be expected to know
how infrequent perjury prosecutions are for informants
who turn out to be lying. In polling jurors after trials
or after cases where a wrongful conviction is found,
you sometimes hear jurors say that they think that if
an informant lies, they’ll be prosecuted for perjury but
because that is so rare, that expectation is misguided,
although it’s a widely shared expectation, I think, among
the public.’’
At the conclusion of Natapoff’s testimony, the court
heard additional argument from the parties. The state
argued that making credibility determinations fell
within the exclusive province of the jury as fact finders
‘‘into which no expert may venture,’’ quoting this court’s
decision in State v. Favoccia, 119 Conn. App. 1, 29, 986
A.2d 1081 (2010), aff’d, 306 Conn. 770, 51 A.3d 1002
(2012). The state further argued that any concerns that
the defense sought to alleviate through Natapoff’s testi-
mony would be adequately covered by the instruction
mandated by our Supreme Court in Arroyo. The state
also made a direct analogy between the testimony that
the defense sought to elicit from Natapoff and expert
testimony concerning the reliability of eyewitness testi-
mony, which, at that time, the Supreme Court had held
may be properly excluded. See State v. McClendon, 248
Conn. 572, 586, 730 A.2d 1107 (1999) (holding average
juror aware of factors affecting reliability of eyewitness
identification and expert testimony on issue disfavored
because it would invade province of jury to determine
weight to give evidence), overruled in part by State v.
Guilbert, 306 Conn. 218, 253, 49 A.3d 705 (2012); State v.
Kemp, 199 Conn. 473, 477, 507 A.2d 1387 (1986) (same),
overruled in part by State v. Guilbert, 306 Conn. 218,
253, 49 A.3d 705 (2012).
The defense argued that Natapoff’s testimony would
impart uniquely insightful information to the jury and
would not invade the jury’s province to assess credibil-
ity because she would not offer an opinion about the
credibility of any particular witness. Natapoff’s testi-
mony would provide only background information and
would describe and put into context the rather opaque
circumstances surrounding the development and use
of jailhouse informants. Further, the defense disagreed
that an Arroyo instruction offered all of the same infor-
mation, particularly in light of the studies showing that
such instructions had no appreciable difference on
jurors. Finally, the defense noted that Natapoff’s testi-
mony was especially relevant in the present case
because the state’s case was built largely on the testi-
mony of informants.
After taking a short recess, the court rendered the
following oral ruling: ‘‘It is the court’s ruling that the
proffered expert testimony of Professor Natapoff would
indeed invade the very core function of the jury; that
is, to assess the credibility of the witnesses, and so I
am going to sustain the state’s objection to her testi-
mony. The court did have an opportunity to review the
recent Favoccia case . . . which confirms that credi-
bility determinations are within the exclusive province
of the fact finder. The subject matter about which Pro-
fessor Natapoff would testify is not, in the court’s view,
outside the common experience, ken, or common
knowledge of the jury; the court cites [State v. McClen-
don, supra, 248 Conn. 586]. Although Professor Natapoff
may reference certain studies and research about which
the jury may not be aware, that does not make her
conclusions about the marketplace or exchange of
information for certain benefits outside the common
experience or ken of the jury. The court has given wide
latitude throughout the cross-examination of the wit-
nesses concerning any possible consideration for testi-
mony or anticipation of benefits in exchange for
testifying for the state, and the jury certainly will have
that information to consider in making its credibility
determinations. Finally, of course, the court will be
instructing the jury in accordance with [State v. Arroyo,
supra, 292 Conn. 569–71], as to the testimony of incar-
cerated witnesses. So, for these reasons, the court sus-
tains the state’s objections to the testimony of
Professor Natapoff.’’
Accordingly, Natapoff was not permitted to testify
before the jury. Later, as part of the court’s jury charge,
the court gave an instruction regarding informant testi-
mony, cautioning the jurors to consider such testimony
with ‘‘particular care’’ and to ‘‘scrutinize it very carefully
before you accept it.’’41
At the outset, we note that ‘‘[a] witness qualified
as an expert by knowledge, skill, experience, training,
education or otherwise may testify in the form of an
opinion or otherwise concerning scientific, technical
or other specialized knowledge, if the testimony will
assist the trier of fact in understanding the evidence or
in determining a fact in issue.’’ Conn. Code Evid. § 7-
2. ‘‘[I]n order to be admissible, the proffered expert’s
knowledge must be directly applicable to the matter
specifically in issue.’’ State v. Douglas, 203 Conn. 445,
453, 525 A.2d 101 (1987). ‘‘The true test for the admissi-
bility of expert testimony is whether the witnesses
offered as experts have any peculiar knowledge or expe-
rience, not common to the world, which renders their
opinions founded on such knowledge or experience any
aid to the court or the jury in determining the question
at issue. . . . The test for admissibility is not limited
to matters of scientific knowledge. Generally, expert
testimony may be admitted if the witness has a special
skill or knowledge, beyond the ken of the average juror,
that, as properly applied, would be helpful to the deter-
mination of an ultimate issue. . . . The trial court has
wide discretion in ruling on the admissibility of expert
testimony and, unless that discretion has been abused
or the error is clear and involves a misconception of
the law, its ruling will not be disturbed.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985).
On the basis of our review of the record and the
arguments of the parties, we conclude that the court
abused its discretion by granting the state’s motion in
limine and excluding Natapoff as a witness, especially
in light of the fact that, in the present case, informants
played a crucial role in the state’s case against the
defendant. The court provided scant analysis for its
decision, essentially stating two reasons for precluding
Natapoff from testifying as an expert. First, the court
stated that Natapoff’s testimony would invade the jury’s
core function of assessing the credibility of witnesses.
Second, the court concluded that the subject matter of
Natapoff’s testimony was within the common knowl-
edge of the jury. Both rationales, however, are belied
by the substance of Natapoff’s unchallenged proffer,
and our Supreme Court’s acknowledgement of the
inherent unreliability of informant testimony in Arroyo
and the need to further educate jurors on this topic.
Moreover, the case law cited by the court is not control-
ling and does not support the court’s ruling.
We begin with the court’s conclusion that Natapoff’s
testimony would invade the jury’s exclusive province
to determine the credibility of witnesses. The court
indicated that it reached its decision on the basis of its
review of this court’s decision in State v. Favoccia,
supra, 119 Conn. App. 1, a case that was cited by the
state. The court’s reliance on Favoccia, however, is mis-
placed.
Favoccia involved the sexual abuse of a child. The
issue before this court was whether a psychologist, who
was offered by the state as an expert witness to explain
to the jury about characteristics and behaviors com-
monly exhibited by child sex abuse victims, improperly
was permitted to testify about the particular victim in
that case and if she had exhibited the type of behavior
described by the expert because such testimony consti-
tuted inadmissible vouching for the credibility of a wit-
ness. We held that the expert’s testimony ‘‘crossed the
line of permissible expert opinion’’ because her testi-
mony ‘‘went beyond a general discussion of characteris-
tics of sexual abuse victims and offered opinions, based
on her review of the videotaped forensic interview and
other documentation, as to whether this particular vic-
tim in fact exhibited the specified behaviors . . . .’’ Id.,
23. Our decision later was affirmed by our Supreme
Court; see State v. Favoccia, 306 Conn. 770, 805–807,
51 A.3d 1002 (2012); albeit after the ruling challenged
in the present appeal was rendered.
We began our analysis by noting generally that ‘‘[t]he
determination of the credibility of a witness is solely
the function of the jury. . . . It is the trier of fact which
determines the credibility of witnesses and the weight
to be accorded their testimony. . . . Expert witnesses
cannot be permitted to invade the province of the jury
by testifying as to the credibility of a particular wit-
ness or the truthfulness of a particular witness’
claims.’’ (Emphasis added; internal quotation marks
omitted.) State v. Favoccia, supra, 119 Conn. App. 18.
We later reiterated that ‘‘[c]redibility determinations are
the exclusive province of the fact finder, into which no
expert may venture.’’ Id., 29.
Favoccia, however, did not alter our well settled rule
as set forth in State v. Spigarolo, 210 Conn. 359, 378,
380, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct.
322, 107 L. Ed. 2d 312 (1989), that experts are permitted
to testify in sex abuse cases ‘‘to demonstrate or explain
in general terms the behavioral characteristics of child
abuse victims in disclosing alleged incidents’’; id., 380;
and that such expert testimony is admissible precisely
because it ‘‘is of valuable assistance to the trier in
assessing the minor victim’s credibility.’’ (Internal quo-
tation marks omitted.) State v. Favoccia, supra, 306
Conn. 787.
In Spigarolo, our Supreme Court rejected the defen-
dant’s argument that testimony by an expert would
usurp the jury’s function of assessing the credibility of
witnesses. The court found such concerns unfounded
because the expert ‘‘was not asked about the credibility
of the particular victims in this case, nor did she testify
as to their credibility.’’ State v. Spigarolo, supra, 210
Conn. 379. The court stressed that in determining the
admissibility of expert testimony, a critical distinction
must be recognized between admissible expert testi-
mony limited to general or typical behavior patterns and
inadmissible testimony directly related to a particular
witness’ credibility. Id., 378–79.
Our decision in State v. Favoccia, supra, 119 Conn.
App. 1, as affirmed by our Supreme Court, thus stands
for the general proposition that, although credibility
determinations ultimately must be left to the jury,
expert testimony nevertheless is admissible if it can
provide a jury with generalized information or behav-
ioral observations that are outside the knowledge of an
average juror and that would assist it in assessing a
particular witness’ credibility. As long as the expert
does not directly opine about a particular witness’ credi-
bility or, as in Favoccia, testify in such a way as to vouch
indirectly for or bolster the credibility of a witness, the
expert’s testimony would not invade the province of
the jury to decide credibility and may be admitted. State
v. Favoccia, supra, 306 Conn. 803–805.
In deciding to exclude Natapoff’s testimony on the
basis of Favoccia, the court did not refer to any particu-
lar portion of Natapoff’s testimony that it believed
would cross the line into impermissible expert testi-
mony regarding credibility. Natapoff, in fact, offered no
testimony regarding any of the particular informants in
this case, either with respect to their status as infor-
mants, how they had obtained their information, or their
potential reliability as witnesses. The defense clearly
indicated to the court during argument that the defen-
dant did not intend to ask Natapoff about the present
case, and that Natapoff had no specific knowledge of
the case or the informants involved. Natapoff’s testi-
mony, as proffered, was narrowly tailored to provide
only general information related to informant testimony
and its unreliability, an issue clearly recognized by our
Supreme Court in State v. Arroyo, supra, 292 Conn.
567–70. Our review of her testimony reveals that it could
have aided the jury in making its own informed and
independent assessment regarding the credibility of the
informants in the present case. Accordingly, the court
abused its discretion by excluding Natapoff’s testimony
on the ground that it invaded the province of the jury
to decide the credibility of witnesses.
The court also abused its discretion when it con-
cluded that the subject matter of Natapoff’s testimony
was within the common knowledge of the average juror.
The court provided no legal or factual basis for that
determination. The court never expressly stated that
it was rejecting Natapoff’s testimony or that it found
unreliable the underlying studies, some of which had
already been cited with approval by our Supreme Court.
The state offered nothing to counter Natapoff’s testi-
mony that, based on these studies, expert testimony
would provide significant information to the jury that
is not known by the average juror. Indeed, we are aware
of no empirical studies, nor were any provided by the
state, that suggest the subject matter of Natapoff’s testi-
mony was well within the knowledge of the average
lay person.
To the contrary, Natapoff testified that even if aver-
age jurors had some limited knowledge related to the
use of jailhouse informants, they did not understand
the true culture of jails or the full extent to which
informants could benefit in our criminal justice system.
She explained that a juror could not be expected to
understand the efforts informants put forth to obtain
their information or the possible sources for that infor-
mation. Further, according to Natapoff’s research,
jurors often have a misguided understanding regarding
the consequences an informant likely will face if he or
she lies. She explained that although perjury prosecu-
tions of informants are rare, jurors nevertheless often
believe the threat of perjury charges plays an important
role in ensuring that an informant tells the truth. Nata-
poff testified that without access to background infor-
mation, jurors are ill-equipped to assess properly an
informant’s credibility, even in the face of an instruction
asking them to take great care in doing so. In the face
of Natapoff’s uncontested testimony that jurors were
not fully aware of the dangers in relying on informant
testimony and that expert testimony could assist jurors
in properly evaluating an informant’s credibility, the
court abused its discretion by concluding that the sub-
stance of Natapoff’s testimony was within the ken of
the average juror.
In finding that the information Natapoff had to convey
was within the ken of the average juror, the court cited
favorably without discussion to our Supreme Court’s
decision in State v. McClendon, supra, 248 Conn. 586.
In McClendon, the court reaffirmed its decision in State
v. Kemp, supra, 199 Conn. 477, that a trial court does
not abuse its discretion by excluding expert testimony
on the reliability of eyewitness testimony because the
general principles of why such testimony may be unreli-
able were something that was ‘‘within the knowledge of
jurors and expert testimony generally would not assist
them in determining the question.’’ (Internal quotation
marks omitted.) State v. McClendon, supra, 586.
Because Kemp and McClendon did not involve infor-
mant testimony, and thus were in no way binding on
the trial court, they represented, at best, the Supreme
Court’s resolution of an arguably analogous issue.42 As
we have already explained, however, the only real evi-
dence before the trial court was that jurors did not have
a full understanding of the role of informants and the
inherent unreliability of their testimony, and that expert
testimony could aid the jury in assessing the credibility
of informants, a number of whom had testified against
the defendant in the present case.
Further, given that our Supreme Court has since over-
ruled Kemp and McClendon; see State v. Guilbert, 306
Conn. 218, 253, 49 A.3d 705 (2012); and has concluded
that a trial court may abuse its discretion by refusing to
permit expert testimony on the reliability of eyewitness
identifications, the court’s citation to McClendon, with-
out more, does not persuade us that the court properly
exercised its discretion. Even at the time the trial court
relied on McClendon, our Supreme Court already had
cast serious doubt upon the viability of its holding in
McClendon that jurors understood the factors that
affect the unreliability of eyewitness identification. See
State v. Ledbetter, 275 Conn. 534, 881 A.2d 290 (2005),
cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed.
2d 537 (2006); see also State v. Marquez, 291 Conn. 122,
967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237,
175 L. Ed. 2d 163 (2009).
In State v. Ledbetter, supra, 275 Conn. 579, the court
mandated that trial courts instruct juries about the risk
of misidentification caused by certain out-of-court iden-
tification procedures. That decision was reached on
the basis of the court’s exhaustive review of scientific
studies involving the risks of eyewitness identifications.
See id., 569–74. If the court needed to review scientific
studies in order to conclude that a jury instruction was
needed to avoid the risks inherent to eyewitness identi-
fications, this raised significant doubts about whether
such risks necessarily were within the general under-
standing of jurors and, therefore, whether expert testi-
mony properly should be precluded on that basis. As we
have already discussed, the Supreme Court in Arroyo
similarly reviewed and found persuasive studies dis-
cussing the dangers of informant testimony, including
work done by Natapoff, and, as it had done in Ledbetter,
it mandated that courts should give an appropriate
jury instruction.
Eventually, in State v. Guilbert, supra, 306 Conn. 253,
our Supreme Court overruled Kemp and McClendon,
and concluded that the trial court in Guilbert had
abused its discretion by not allowing expert testimony.
Indeed, it recognizing that although ‘‘[a]n expert should
not be permitted to give an opinion about the credibility
or accuracy of the eyewitness testimony itself [because]
that determination is solely within the province of the
jury . . . [an] expert should be permitted to testify
. . . about factors that generally have an adverse effect
on the reliability of eyewitness identifications and are
relevant to the specific eyewitness identification at
issue.’’ Id., 248. The court also held that generalized
jury instructions were not an adequate substitute for
expert testimony. Id., 258.
It is undisputed that Natapoff’s testimony demon-
strated that she was qualified to testify as an expert
about informant testimony. She had relevant informa-
tion about factors a jury should consider when evaluat-
ing the credibility of an informant, information that
was outside the knowledge of the average juror, as
demonstrated by Natapoff’s own testimony and the
numerous studies and research she cited to the court
and by our Supreme Court.43 Because her testimony
could have aided the jury in evaluating the credibility
of the informants who testified on behalf of the state
against the defendant, we are convinced that the court
abused its discretion by granting the state’s motion in
limine to preclude Natapoff’s testimony.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion SHELDON, J., concurred.
1
General Statutes § 53a-54a (a) provides in relevant part: ‘‘A person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person . . . .’’
2
General Statutes (Rev. to 1995) § 53a-54b, as amended by Public Acts
1995, No. 95-16, § 4, provides in relevant part: ‘‘A person is guilty of a capital
felony who is convicted of any of the following . . . (5) murder by a kidnap-
per of a kidnapped person during the course of the kidnapping or before
such person is able to return or be returned to safety . . . (7) murder
committed in the course of the commission of sexual assault in the first
degree . . . or (9) murder of a person under sixteen years of age.’’
Hereafter, unless otherwise indicated, all references in this opinion to
§ 53a-54b are to General Statutes (Rev. to 1995) § 53a-54b, as amended by
Public Acts 1995, No. 95-16, § 4.
3
In accordance with our policy of protecting the interests of the victims
of sexual abuse, we decline to identify the victim or others through whom
the victim’s identity may be ascertained. See General Statutes § 54-86e.
4
The defendant admitted to Allain that he choked A.P. to death and
disposed of her corpse in a body of water.
5
The defendant admitted to Douton that A.P. ‘‘was in the river’’ and that
‘‘they would never convict him because they would never find [her] body.’’
6
The defendant admitted to Ching that he had raped and killed a girl on
his boat. He also told Ching that he had hidden the body in a well before
dumping it in the Long Island Sound.
7
The defendant admitted to Buckingham that he accidentally choked a
young girl to death while having sex with her and that he then disposed of
the body in the ‘‘Sound.’’
8
Even though we conclude that the defendant is entitled to a new trial
because of harmful evidentiary error, it is necessary to address first the
defendant’s sufficiency of the evidence claim. As our Supreme Court stated
in State v. Padua, 273 Conn. 138, 179, 869 A.2d 192 (2005), ‘‘a reviewing
court must address a defendant’s insufficiency of the evidence claim, if the
claim is properly briefed and the record is adequate for the court’s review,
because resolution of the claim may be dispositive of the case and a retrial
may be a wasted endeavor.’’ (Internal quotation marks omitted.) ‘‘[A] defen-
dant is entitled to a judgment of acquittal and retrial is barred if an appellate
court determines that the evidence is insufficient to support the conviction.’’
(Internal quotation marks omitted.) State v. Tenay, 156 Conn. App. 792,
801–802, 114 A.3d 931 (2015).
9
The defendant also did not request that the jury be instructed on the
corpus delicti rule.
10
We note that, in one isolated instance, a concurring and dissenting
opinion, quoting a case from North Dakota, defines the corpus delicti rule
in homicide cases as ‘‘consist[ing] of two component parts, the first of which
is the death of the person alleged to have been killed, and the second that
such death was produced through criminal agency.’’ (Internal quotation
marks omitted.) State v. Courchesne, 296 Conn. 622, 791 n.5, 998 A.2d 1
(2010) (Zarella, J., concurring in part and dissenting in part).
11
In State v. DelVecchio, 191 Conn. 412, 426, 464 A.2d 813 (1983), our
Supreme Court later clarified that although it was not necessary for such
corroborating evidence to be introduced into evidence prior to the defen-
dant’s confession, that ‘‘is ordinarily the better procedure.’’
12
The defendant in Hafford was convicted of a capital felony for commit-
ting a murder in the course of the commission of a first degree sexual
assault, felony murder, murder, robbery in the first degree, burglary in the
first degree and sexual assault in the first degree. State v. Hafford, supra,
252 Conn. 276–77. The defendant’s corpus delicti claim was directed at his
sexual assault conviction.
13
Although the state did not initially raise this question in its brief, the
court raised the issue at oral argument and subsequently ordered the parties
to file supplemental briefs addressing the issue.
14
In at least one case decided since Oliveras, our Supreme Court noted that
the defendant at trial had objected to the admission of certain incriminating
statements on the ground that the state had failed to establish that the
corpus delicti existed in Connecticut. See State v. Beverly, 224 Conn. 372,
374 n.3, 618 A.2d 1335 (1993). On appeal, however, the defendant did not
pursue this evidentiary claim, but instead raised the corroboration rule as
part of his challenge to the sufficiency of the evidence. The court entertained
this claim without discussion of whether the corroboration rule is solely a
rule of evidence or may be raised as an insufficiency of the evidence claim.
Id., 374–75. Although the court in Beverly allowed the defendant to raise
the corroboration rule in challenging the sufficiency of the evidence, the
court also somewhat contradictorily stated: ‘‘The corpus delicti rule is a
rule of evidence intended to protect an accused from conviction as a result of
a baseless confession when no crime has in fact been committed.’’ (Emphasis
added.) Id., 375.
15
State v. Oliveras, supra, 210 Conn. 751, was decided before our Supreme
Court reformulated the corpus delicti rule in State v. Hafford, supra, 252
Conn. 314–18, by extending the Opper rule to all crimes, including homicides.
16
The concurring opinion does not explain why we are not bound by
the Supreme Court’s decision in Uretek, Inc., or by this court’s decision
in Heredia.
17
Professor George E. Dix opines that the rule is best understood as a
question of evidentiary sufficiency and recognizes that ‘‘[i]nsofar as the rule
is one of evidentiary sufficiency, its nature suggests that the jury should at
least play a role in its application.’’ 1 K. Broun, McCormick on Evidence (7th
Ed. 2013) § 145, p. 806. The treatise subsequently suggests, in a contradictory
fashion, that the jury is ill-suited to play a role in considering whether the
prosecution has introduced sufficient corroborating evidence. Id., p. 807.
18
This process is akin to the procedure used by a trial court in considering,
pursuant to a motion to suppress, whether a defendant’s statements to
law enforcement must be suppressed pursuant to constitutional guarantees
because they were not voluntarily made. In those circumstances, the trial
court decides whether to admit such statements and, if admitted, the jurors
are free to give the statements whatever weight they conclude is appropriate
based on all relevant facts, including whether such statements were volunta-
rily made. See Lego v. Twomey, 404 U.S. 477, 483–86, 92 S. Ct. 619, 30 L.
Ed. 2d 618 (1972).
19
Certainly, it is possible that the corroboration rule could have constitu-
tional implications if the legislature chose as a matter of state law to make
its proof an express statutory requirement and, thus, an element of the
crime. See Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d
508 (1975). The legislature has not done so in Connecticut.
20
The concurring opinion suggests that we have violated the rule that
sufficiency of the evidence claims are reviewable without reference to Gold-
ing. See State v. Adams, 225 Conn. 270, 276 n.3, 623 A.2d 42 (1993) This
suggestion misapprehends our analysis. We agree with the concurring opin-
ion that the defendant is entitled to appellate review of the sufficiency of
the evidence without reference to Golding, and we have afforded the defen-
dant that review by considering all the evidence admitted, including his
unobjected-to confessions. It is only the unpreserved, corpus delicti-based
challenge to the admission of the defendant’s confessions that we have
found to be an unpreserved, nonconstitutional claim that is not reviewable
under Golding. Under our standard of review, alleged errors in the admission
of evidence play no legitimate role in our evaluation of sufficiency of the
evidence claims. See State v. Carey, 228 Conn. 487, 496, 636 A.2d 840 (1994)
(‘‘[c]laims of evidentiary insufficiency in criminal cases are always addressed
independently of claims of evidentiary error’’); State v. Smith, 73 Conn.
App. 173, 180, 807 A.2d 500 (‘‘claim of insufficiency of the evidence must
be tested by reviewing no less than, and no more than, the evidence intro-
duced at trial’’), cert. denied, 262 Conn. 923, 812 A.2d 865 (2002).
21
The jury was free to interpret the defendant’s statement that he wanted
‘‘to do her’’ either as an expression of his intent to have sexual intercourse
with A.P. or as an expression of his intent to kill her. In either instance,
when considered in light of the defendant’s statement that he ‘‘need[ed] a
body for the altar,’’ the jury reasonably could have inferred that his ultimate
plan was to kill A.P.
22
We recognize that this prior misconduct evidence, standing alone, is
insufficient to prove that the defendant committed the crimes with which
he is charged. State v. DeJesus, supra, 288 Conn. 474 n.36. Such evidence,
however, may be used by the jury, in conjunction with all of the other
evidence, to conclude that the state proved the charges beyond a reason-
able doubt.
23
We note that the defendant’s confession to Ching, in particular, had
heightened trustworthiness because Ching was no longer in prison, on proba-
tion or parole, and had no charges pending against him at the time he related
the defendant’s confession to the police.
24
The defendant cannot rely on the corroboration rule in challenging the
sufficiency of the evidence regarding an intent to kill because, as previously
discussed, (1) he waived the application of that rule by failing to object
to the admission of the confessions, (2) his confessions were sufficiently
corroborated pursuant to Opper v. United States, supra, 348 U.S. 93, and
State v. Hafford, supra, 252 Conn. 316–17, and (3) the corpus delicti of the
crime of murder relates solely to the death of the victim and not to whether
the defendant had the requisite intent to kill.
25
The jury could have reasonably concluded from Allain’s eyewitness
testimony that the sexual assault occurred in the defendant’s truck in the
presence of Allain, or on the defendant’s boat, or at another location as
described in the defendant’s confession to Buckingham.
26
The defendant’s contention that his confessions are the only evidence
that he murdered A.P. in the course of the commission of a sexual assault
is incorrect. First, the defendant’s sexual assault of K.S. was admitted as
substantive evidence of his propensity to engage in the sexual assault of
teenage girls. Second, the jury could also have concluded that, in addition
to any sexual assault to which the defendant confessed, Allain witnessed
the defendant sexually assault A.P. in his truck. With respect to that sexual
assault, the defendant did not argue at trial, and does not argue in his
principal brief on appeal, that the sexual assault that Allain testified that
he witnessed is insufficient evidence because of any temporal incongruity
between the predicate sexual assault and A.P.’s murder. Accordingly, we
express no opinion regarding whether the murder was committed in the
course of the commission of the sexual assault to which Allain was an
eyewitness or a subsequent sexual assault as described in the defendant’s
confessions.
27
In his supplemental brief, the defendant does not rely on the corrobora-
tion rule with respect to this count except for the fact of A.P.’s death.
28
The defendant also argues that, by excluding the evidence, the court
violated his constitutional rights to due process, to confront witnesses, and
to present a defense. Because we rule in favor of the defendant on the
evidentiary ground raised, we do not consider the constitutional aspects of
this claim. See State v. Genotti, 220 Conn. 796, 804, 601 A.2d 1013 (1992)
(court should eschew reaching constitutional issues on appeal if claim dis-
posed of on evidentiary grounds).
29
Allain did ask Madden for guidance as to whether he needed a lawyer,
but then let the matter drop.
30
Although the videotape containing the pretest interview was never
shown to the jury, it was reviewed by the trial court, along with the videotape
of the polygraph examination, and marked for identification, thereby pre-
serving it for appellate review.
31
Our Supreme Court, in an opinion affirming the denial of a motion for
sentence modification filed by one of the convicted perpetrators in the
Measles case, noted the underlying facts as follows: ‘‘[P]ersons kidnapped
the thirteen year old victim, [Measles], then brought her to a remote location
where she was terrorized, beaten, gang-raped and murdered. Members of
the group then rolled the victim’s body in a tarp, wrapped it in chains, and
dumped the victim’s body in the Housatonic River.’’ State v. Dupas, 291
Conn. 778, 786 n.8, 970 A.2d 102 (2009).
32
The defendant’s trial counsel conceded that there was ‘‘nothing in the
tape that suggests that [Madden] had the condignation, approval, or support
of the state’s attorney’s office, but I don’t think that’s necessary for the
purposes for which I offer it.’’
33
After the court’s clarification that it was not prohibiting the defendant
from asking Allain questions concerning assurances made to him during the
pretest interview, the following colloquy occurred:
‘‘[Defense Counsel]: The use of the tape then?
‘‘The Court: Well, I would think that the tape itself would not—that’s even
a separate issue as to whether or not you could use that; that would be
extrinsic evidence of something.
‘‘[Defense Counsel]: I don’t think it’s extrinsic evidence at all. It’s his
conduct during an interview and his response to questions during the
interview.
‘‘The Court: Well—
‘‘[Defense Counsel]: It’s much like asking—using a deposition transcript
of a prior proceeding where a question is answered and the lawyer or the
declarant says he understand it.
‘‘The Court: And we’re not there yet, in the court’s view.
‘‘[Defense Counsel]: I gather, constructively—and I just want to round
the record out—that as to the B claim—that is, the claim that we can use
the polygraph results to show the present influence on the declarant, that
is, his knowledge that the police regard him as having failed and therefore
his motive for telling him [w]hat they want to hear today—I gather the court
is ruling under Porter, as it understands it, that that is not permitted as well?
‘‘The Court: Yes.’’
The state, in its principal appellate brief, references the court’s statement,
‘‘we’re not there yet,’’ and indicates that the defense in fact questioned Allain
on cross-examination about whether he was offered any assurances during
the pretest interview. The state correctly notes that defense counsel made
no further effort to introduce the videotape into evidence. To the extent
that the state is suggesting either that the defendant waived his claim regard-
ing the admissibility of the videotape, that he abandoned that claim, or that
the trial court failed to issue a final ruling as to the admissibility of the
videotape, we do not entertain those arguments because they are not
expressly raised or briefed by the state, and the state addresses the eviden-
tiary claim on its merits. See State v. Luis F., 85 Conn. App. 264, 271 n.1,
856 A.2d 522 (2004).
34
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
35
Even the state, in seeking to preclude the admission of the pretest
videotape, did not contend that any mention of the term polygraph was
impermissible.
36
We note that the prohibition against the admission of ‘‘willingness’’
evidence is designed to avoid using such willingness as a basis for finding
a witness credible. Other uses, for example, to establish a particular motiva-
tion to take advantage of a deal offered by the state, may not necessarily
warrant similar exclusion.
37
Although the defendant did raise constitutional challenges, we resolve
this claim on evidentiary grounds; see footnote 8 of this opinion; and thus
properly place the burden on the defendant to prove harmful error.
38
In conjunction with his prior misconduct claim, the defendant also
contends that the court improperly instructed the jury as to the proper use
of the challenged evidence. The state responds that the defendant implicitly
waived any claim of instructional error at trial and, thus, the claim is unre-
viewable on appeal. According to the state, after the court provided him
with an opportunity to review the written jury charge, the defendant did
not object and failed to raise the issue that he now asserts on appeal. See
State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011). Having con-
cluded that the defendant is entitled to a new trial, we conclude that it is
unnecessary to address the defendant’s claim of instructional error.
39
Again, because we rule in favor of the defendant on an evidentiary basis,
we do not reach the constitutional aspects of his claim. See footnote 28 of
this opinion.
40
See, e.g., A. Natapoff, Snitching: Criminal Informants and the Erosion of
American Justice (New York University Press 2009); A. Natapoff, comment,
‘‘Beyond Unreliable: How Snitches Contribute to Wrongful Convictions,’’ 37
Golden Gate U. L. Rev. 107 (2006). The state never argued before the trial
court nor does it claim on appeal that Natapoff does not qualify as an
expert concerning the reliability of informant testimony on the basis of her
knowledge, experience and training. In fact, the state acknowledges that
our Supreme Court, in Arroyo, cited favorably to Natapoff’s writings on this
subject. See State v. Arroyo, supra, 292 Conn. 568 n.8. It should be further
noted that the trial court did not preclude Natapoff’s testimony on the
ground that she did not qualify as an expert. Because Natapoff’s credentials
as an expert are not at issue, we do not set forth her qualifications in
detail here.
41
The court’s instruction regarding informant testimony was, in total, as
follows: ‘‘Witnesses testified in this case as informants. An informant is
someone who has information regarding the crime and agrees to testify in
exchange for some benefit from the state. In evaluating an informant’s
testimony, you should consider the benefits that the state has promised the
informant in exchange for his cooperation.
‘‘It may be that you would not believe a person who is receiving benefits
in exchange for testimony as well as you might believe other witnesses. An
informant may have such an interest in the outcome of this case that his
testimony may have been colored by that fact.
‘‘Therefore, you must look with particular care at the testimony of an
informant and scrutinize it very carefully before you accept it. You should
determine the credibility of that witness in the light of any motive for
testifying falsely and inculpating the accused.
‘‘If you find that the witness is an informant who has been promised a
reduction in his sentence or other valuable consideration by the state in
return for his testimony, or who hopes for or expects consideration by the
state in return for his testimony, you must decide whether you will believe
or disbelieve the testimony of a person who is testifying in exchange for
some benefit from the state. Like all other questions of credibility, this is
a question you must decide based on all the evidence presented to you.’’
42
The type of expert testimony at issue here does not involve the scientific
evidence at issue in Kemp and McClendon. Perhaps a more appropriate
analogy would be to child sex abuse cases in which the victim has been
impeached concerning inconsistencies or recantations and expert testimony
is thereafter permitted to explain, in general terms, the types of behavioral
characteristics to be expected when a child discloses instances of sexual
abuse. See State v. Vumback, 68 Conn. App. 313, 327–32, 791 A.2d 569 (2002),
aff’d, 263 Conn. 215, 819 A.2d 250 (2003).
43
This opinion should not be read as suggesting that expert testimony
must be permitted in all criminal cases in which a jailhouse informant
testifies. Rather, in order to admit the testimony of an expert regarding
the reliability of informant testimony, the defendant bears the burden of
establishing that the testimony the expert will provide is relevant and suffi-
ciently tailored to the circumstances surrounding the particular informant.
See Conn. Code Evid. § 7-2 (requiring that expert testimony ‘‘assist the trier
of fact in understanding the evidence or in determining a fact in issue’’);
Kairon v. Burnham, 120 Conn. App. 291, 296–97, 991 A.2d 675 (proper to
exclude expert testimony not relevant to facts at issue), cert. denied, 297
Conn. 906, 995 A.2d 634 (2010). This additional ‘‘fit’’ requirement was met
in the present case because the defense established during its proffer that
many of the circumstances identified by Natapoff as affecting the reliability
of jailhouse informants existed with respect to the informants who testified
against the defendant.