State v. Gordon

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. TAMARA GORDON
(AC 42039)
Alvord, Prescott and Cradle, Js.
Syllabus
Convicted of the crime of larceny of an elderly person by embezzlement in
the second degree in connection with certain credit card transactions,
the defendant appealed to this court. The defendant was a health care
aide who lived part-time with the alleged victim, R, and his wife. Eventu-
ally, the defendant and R became romantic and intimate. R gave the
defendant large sums of money, and, according to the defendant, author-
ized the use of his credit card to make purchases for the defendant’s
own personal needs. After R’s health declined, his son, B, hired a book-
keeper to help R manage his finances. When the bookkeeper found
certain credit card charges and checks written to the defendant, the
defendant’s employment was terminated. B filed a complaint with the
police, who conducted a larceny investigation, during which a detective,
S, interviewed R. Prior to trial, R died, and the court granted a motion
in limine filed by the defendant to preclude the admission of statements
made by R to any law enforcement agent. At trial, S testified that he
met with R and that R consented to the investigation. On appeal, the
defendant claimed that the trial court improperly admitted into evidence
a testimonial hearsay statement of R in violation of her constitutional
right to confrontation and that she was deprived of her due process
rights when the prosecutor engaged in prosecutorial impropriety by
making substantive use of the testimonial hearsay statement in her
closing rebuttal argument. Held:
1. The trial court violated the defendant’s right to confrontation under the
federal constitution by admitting into evidence, without limitation, S’s
testimony that R consented to the larceny investigation, which consti-
tuted hearsay: R’s consent to the larceny investigation was an out-of-
court statement, and, although S did not repeat any of the specific words
that R spoke during his interview with S, S’s testimony presented to
the jury, by implication, the substance of R’s statements during the
interview, that, after being informed of the nature of the investigation
into the defendant’s conduct, R communicated to S that the police had
his permission to continue to pursue the larceny investigation because
the transactions were unauthorized; moreover, R’s statement of consent
was admitted for the truth of the matter asserted, as the court indicated
to the parties that it would admit the statement even if it were hearsay
in that it was akin to a dying declaration, the court admitted the statement
at issue without limitation, which meant it could be used for any purpose,
and the prosecutor’s closing rebuttal argument that the jury should infer
that the defendant made unauthorized purchases with R’s credit card
because otherwise R would not have consented to the police investiga-
tion was a powerful indicia that the parties and the court understood
that R’s statement of consent was admitted for substantive purposes;
furthermore, R’s statement was testimonial in nature because the state
conceded it would be if it came in for substantive purposes and it was
provided amidst an interrogation to establish or to prove past events
potentially relevant to later criminal prosecution, and the defendant
did not previously have the opportunity to cross-examine R, who was
unavailable due to his death; additionally, the defendant was harmed
by the error, because the circumstances of the trial suggested that the
admission of S’s testimony influenced the judgment of the jury in that
R effectively testified against the defendant on this critical issue from
the grave without ever having been subjected to cross-examination, the
jury had been presented with evidence that R had often gifted the
defendant money and that the state did not charge the defendant for
the theft of those funds, and, less than ten minutes after the jury reheard
S’s testimony, it returned a guilty verdict.
2. Because this court concluded that the trial court improperly admitted
R’s testimonial statement for substantive purposes, in contravention of
the defendant’s constitutional right to confrontation, it did not need to
reach the merits of the defendant’s prosecutorial impropriety claim.
Argued January 6—officially released July 20, 2021
Procedural History
Substitute information charging the defendant with
the crime of larceny of an elderly person by embezzle-
ment in the second degree, brought to the Superior
Court in the judicial district of Stamford-Norwalk, geo-
graphical area number twenty, and tried to the jury
before Hernandez, J.; verdict and judgment of guilty,
from which the defendant appealed to this court.
Reversed; new trial.
Megan L. Wade, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appel-
lant (defendant).
Melissa E. Patterson, senior assistant state’s attor-
ney, with whom, on the brief, were Paul J. Ferencek,
state’s attorney, and Justina Moore, assistant state’s
attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Tamara Gordon, appeals
from the judgment of conviction, rendered following a
jury trial, of larceny of an elderly person by embezzle-
ment in the second degree in violation of General Stat-
utes §§ 53a-119 (1) and 53a-123 (a) (5). On appeal, the
defendant claims that (1) the court improperly admitted
into evidence a testimonial hearsay statement of the
alleged victim, Robert Duke, Sr. (Duke), who died prior
to trial, in violation of the defendant’s right to confronta-
tion under the sixth amendment to the United States
constitution1 and article first, § 8, of the Connecticut
constitution,2 and (2) she was deprived of her due pro-
cess rights when the prosecutor engaged in prosecu-
torial impropriety by making substantive use of Duke’s
testimonial hearsay statement in her closing rebuttal
argument. Because we conclude that the court improp-
erly admitted Duke’s testimonial statement for substan-
tive purposes, in contravention of the defendant’s right
to confrontation, we do not need to reach the merits of
the defendant’s prosecutorial impropriety claim. Accord-
ingly, we reverse the judgment of conviction and remand
for a new trial.
The following facts, as presented to the jury, and proce-
dural history are relevant to our review of the defendant’s
claims. For approximately thirty-eight years, Duke, a law-
yer, and his wife, Jeanette Duke,3 lived together in their
family home in Wilton where they raised four children.
Jeanette Duke developed a degenerative neurological dis-
order and eventually required around-the-clock care. To
assist with Jeanette Duke’s care, Duke hired two live-in
health care aides, Tina Grigoryan, who was responsible for
Jeanette Duke’s care from Monday morning until Saturday
morning, and the defendant, who was responsible for
Jeanette Duke’s care from Saturday morning until Monday
morning. The aides’ responsibilities included, inter alia,
purchasing groceries, household items, and personal
items for the Dukes. For such purchases, Duke authorized
the aides to use his credit card, which was kept in a
designated kitchen drawer.
Duke was generous to his employees. Grigoryan and
the defendant were well compensated, earning between
$400 and $500 per day and regular bonuses. Duke loaned
Grigoryan money on at least two occasions for eye surgery
and a personal family matter. Duke also assisted the defen-
dant with a business endeavor that ultimately was unsuc-
cessful, by drafting the requisite legal documents, connect-
ing the defendant with an attorney, and providing funds.
According to the defendant, in April, 2010, her relation-
ship with Duke became romantic and intimate. At that
time, Duke was in his early eighties and the defendant was
in her early thirties. The defendant testified that Duke’s
generosity increased in tandem with the intimacy of the
relationship, and that he made sure she did not ‘‘want for
anything at all.’’ At a certain point, the Dukes’ children
became upset about the amount of money their father
was providing to the defendant. In March, 2012, Ben Duke,
Duke’s son, met with the defendant and his father to
present information that he thought would demonstrate
that the defendant was making misrepresentations to his
father. After that conversation, the defendant quit working
for the Dukes. Duke wrote the defendant a $10,000 sever-
ance check.
Approximately three weeks later, the defendant
returned to work for the Dukes at Duke’s request. When
the defendant returned to work, Duke continued to give
her large sums of money in addition to her daily pay, in the
form of checks designated for a Health Reimbursement
Account (HRA).4 The defendant testified that she used
Duke’s credit card to make purchases for her own per-
sonal needs and that Duke was aware of, and authorized,
those purchases.
Ben Duke testified that Duke’s health declined signifi-
cantly in late 2012, and he began to need additional assis-
tance. In March, 2013, the Dukes moved to an independent
living facility in Redding, at which the aides continued to
provide care for them pursuant to the same schedule—
Grigoryan during the week and the defendant on the
weekends. In August, 2013, Ben Duke hired Beth Wagner,
a bookkeeper, to help his father manage his finances.
Upon reviewing eight months of Duke’s credit card state-
ments, from January through September, 2013, Wagner
found that there were $7371.43 worth of weekend charges
at CVS Pharmacy, $4197.57 at T.J. Maxx, and $7812.30 at
Stop & Shop. Duke had written checks to pay these credit
card bills. Wagner also determined that, in 2013, Duke
wrote the defendant a number of HRA checks totaling
$78,446.43. On September 7, 2013, shortly after Wagner
presented her findings to Ben Duke and Duke, the defen-
dant’s employment was terminated.
On September 13, 2013, Ben Duke filed a complaint with
the Wilton Police Department regarding approximately
$23,000 in suspicious weekend transactions on Duke’s
credit card from January through September, 2013. The
Wilton police then conducted a larceny investigation, dur-
ing which the police detective assigned to the case, Robert
Scott Sear, interviewed Duke. The defendant was arrested
in 2014, and later charged, by an amended long form
information, with larceny of an elderly person by embez-
zlement in the second degree, in violation of §§ 53a-119
(1)5 and 53a-123 (a) (5).6 Duke died in October, 2014,
approximately three and one-half years before trial.
Prior to trial, the defendant filed a motion in limine to
preclude the admission of statements made by Duke to
‘‘any law enforcement agent,’’ in which she argued that
any statements made to the police were inadmissible testi-
monial hearsay. At the hearing on the motion in limine,
the court asked the state if it intended to offer any hearsay
testimony regarding statements of Duke. The state’s
response was that it would follow the rules of evidence,
it did not plan to claim any exceptions to the hearsay
rule that would apply to Duke’s statements, and it would
notify opposing counsel if it found ‘‘some crazy exception
that [it] think[s] would be useful . . . .’’ The court granted
the defendant’s motion in limine, explaining that its deci-
sion was based on the prosecutor’s representation that
she would not be offering any testimony regarding hearsay
statements of Duke.
The defendant later filed a motion to suppress certain
evidence obtained from the stores at which the defendant
had used Duke’s credit card to make personal purchases.
At the hearing on the motion to suppress, Detective Sear
testified regarding, inter alia, his interview with Duke.
Specifically, he stated, ‘‘I went to Yale New Haven Hospi-
tal, spoke to [Duke], met with him on normal rapport. He
had a very weak voice. He obviously was partially blind.
He could not write, but he was aware of his surroundings.
He was alert. He was oriented. He agreed to speak with
me. I thought the interview was appropriate. His son with
power of attorney was present and I began to speak to
him about why I was there.
‘‘He explained that he knew and understood why I was
there, and then I began to ask him questions about these
certain transactions in which he did explain that there
were some food items that may have been purchased. It
would be difficult for him to isolate those, but the items
of gift card transactions, he was insistent that he never
authorized such purchases and he never authorized any
purchases within the T.J. Maxx store purchases that
were used.’’ (Emphasis added.)
Shortly thereafter, the court denied the defendant’s
motion to suppress on grounds not relevant to the present
appeal. Defense counsel then raised additional issues with
respect to Detective Sear’s potential trial testimony. Spe-
cifically, defense counsel argued, inter alia, that any state-
ments that Duke made to Detective Sear during the inter-
view are testimonial hearsay and not admissible at trial
pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.
Ct. 1354, 158 L. Ed. 2d 177 (2004). The following collo-
quy ensued:
‘‘The Court: All right. Does the state intend to offer the
substance of that interview and the statements that
[Duke] made?
‘‘[The Prosecutor]: I think that the jury should know
that Detective [Sear] met with [Duke] for sure.
‘‘The Court: All right. And—but are you offering
[Duke’s] statements to the detective at trial?
‘‘[The Prosecutor]: The state is not offering that as
evidence, Your Honor.
‘‘The Court: There’s your answer. There’s no Craw-
ford issue.’’
On February 13, 2018, the first day of trial, but before
the jury was sworn in, defense counsel again raised to
the court the issue of Detective Sear testifying on the
topic of his interview with Duke:
‘‘[Defense Counsel]: And then also, Your Honor, on—
on Thursday last week we had talked about—a little
bit about the hospital visit of Detective Sear. And our
position, the court may recall, was that given the fact
that no statement from [Duke] would be admissible
because it’s testimonial hearsay, that there’s just no
relevance to that meeting between Detective Sear and—
‘‘The Court: No, I disagree. Do you intend to offer any
statements from that meeting, or just the fact that it
occurred?
‘‘[The Prosecutor]: Do I intend to offer any statements
from that meeting? I’m going to ask Detective Sear, did
there come a time that he met with [Duke]. And I don’t
know exactly what his response will be, but I’m not
going to [ask] what did he tell you.
‘‘The Court: All right. I think that answers your ques-
tion. The fact that he met with [Duke] I think is highly
relevant. It shows the integrity and the thoroughness
of the investigation, which is always an issue in a crimi-
nal trial.
‘‘[Defense Counsel]: But—
‘‘The Court: And it sounds like the state does not intend
to offer any statements from [Duke], which would qual-
ify as hearsay evidence.
‘‘[Defense Counsel]: But it presumes the competency
of [Duke] regarding whatever was said.
‘‘The Court: Well, you’re free to cross-examine on that.
Do you intend to cross-examine on that?
‘‘[Defense Counsel]: I guess we’ll see.
‘‘The Court: All right. Well then it shouldn’t be an issue.
I mean, it seems to me that you’re—that you’re—you’re
jumping ahead. Just because he had a conversation
with the person that somehow that calls the person’s
competence into—into question. If the state’s not offer-
ing any substantive statements from [Duke] from that
meeting, then I don’t see what the hearsay problem is.’’
Detective Sear was the first witness to testify, and when
he took the stand, he testified as follows with respect
to
his interview with Duke:
‘‘Q. Did you ever meet with [Duke]?
‘‘A. I did. I did meet with [Duke] I wanted to have
him relay facts to me, even though his son was repre-
sented by power of attorney. I made arrangements to
meet with him and develop what he could provide me
with the information as to his concerns and validate
the complaint.
‘‘Q. Did he consent to the investigation?
‘‘A. He did.’’
Defense counsel did not object at the time to Detec-
tive Sear’s testimony. After the court dismissed the jury
for its morning recess, however, defense counsel moved
for a mistrial on the ground that Detective Sear’s testi-
mony that Duke had consented to the investigation was
a constitutional violation under Crawford v. Washing-
ton, supra, 541 U.S. 36. Defense counsel further explained
that he did not object at the time that Detective Sear
made the comment because it ‘‘would have highlighted
the damaging nature of that testimony to the jury,’’ and
that ‘‘[t]he only remedy is a mistrial’’ because if the jury
was told to disregard that portion of Detective Sear’s
testimony, it only would have highlighted that remark
for the jury.
The court disagreed with defense counsel on the basis
that Duke’s consent to the investigation is not a state-
ment of fact offered for the truth of the matter asserted,
but instead was a verbal act. As such, it concluded that
Detective Sear’s response was not hearsay, and, even
if it was, the court explained that it was admissible
under the residual exception to the hearsay rule
because the circumstances under which Duke gave con-
sent ‘‘bore a high level of credibility and authenticity,’’
and it was almost akin to a dying declaration.7
The topic of Detective Sear’s interview with Duke did
not come up again until the rebuttal portion of the pros-
ecutor’s closing argument, during which she argued,
inter alia: ‘‘Is it far-fetched to think that [Duke] would
be generous with writing checks and then think who
cares about the credit card? I would submit to you that
[Duke] was generous in writing checks. Why else would
it explain that [Duke], gave consent to Detective [Sear]
and to Ben Duke to pursue the charges that we have
before you today. Generosity is not on trial here. The
only thing that’s on trial is whether [the defendant]
abused her authority to use [Duke’s] credit card.’’
(Emphasis added.) The defendant did not object during
the prosecutor’s rebuttal argument.
During its multiday deliberation, the jury submitted
several notes. In one of the final notes that the jury
submitted before reaching a verdict, it requested a
replay of Detective Sear’s testimony. After the court
played Detective Sear’s testimony, it played a one
minute long portion of the defendant’s testimony, which
the jury had also requested. Then, after an additional
five minutes of deliberation, the jury returned a verdict
of guilty. The defendant later was sentenced to ten years
of imprisonment, execution suspended after twelve
months, followed by five years of probation. The court
also ordered restitution in the amount of $12,908. This
appeal followed. Additional facts will be set forth as
necessary.
The defendant first claims that she was deprived of
her constitutional right to confrontation under the sixth
amendment to the United States constitution and article
first, § 8, of the Connecticut constitution when the trial
court improperly admitted Detective Sear’s testimony
that Duke had consented to the larceny investigation.8
Specifically, the defendant argues that Duke’s consent
constituted implied hearsay that was testimonial in
nature, because it implied the content of Duke’s state-
ments to Detective Sear during the interview and the
testimony was offered for the truth of the matter
asserted, namely, that Duke consented to the investiga-
tion because he agreed that the defendant had made
unauthorized purchases on his credit card. As such, the
court’s admission of the contested testimony violated
the defendant’s right to confrontation, because Duke
was an unavailable witness and the defendant did not
have an opportunity to cross-examine him. The defen-
dant further argues that the state cannot demonstrate
that the improper admission of Detective Sear’s testi-
mony was harmless beyond a reasonable doubt.
The state responds that Duke’s consent to the investi-
gation constituted a verbal act and, accordingly, was
properly admitted into evidence as a nonhearsay state-
ment. In addition, the state argues that even if Duke’s
consent constituted testimonial hearsay, the defendant
is not entitled to reversal because such error was harm-
less beyond a reasonable doubt. We conclude that the
trial court’s admission of Detective Sear’s testimony
without limitation violated the defendant’s right to con-
frontation and the state has failed to demonstrate that
the error was harmless beyond a reasonable doubt.
We begin by setting forth the appropriate standard of
review and governing legal principles. ‘‘The standard
under which we review evidentiary claims depends on
the specific nature of the claim presented. . . . To the
extent a trial court’s admission of evidence is based on
an interpretation of [law], our standard of review is
plenary. For example, whether a challenged statement
properly may be classified as hearsay and whether a
hearsay exception properly is identified are legal ques-
tions demanding plenary review. . . . We review the
trial court’s decision to admit evidence, if premised on
a correct view of the law, however, for an abuse of
discretion. . . .
‘‘As a general matter, hearsay statements may not be
admitted into evidence unless they fall within a recog-
nized exception to the hearsay rule. . . . In the context
of a criminal trial, however, the admission of a hearsay
statement against a defendant is further limited by the
confrontation clause of the sixth amendment. Under
Crawford v. Washington, supra, 541 U.S. 59, hearsay
statements of an unavailable witness that are testimo-
nial in nature may be admitted in accordance with the
confrontation clause only if the defendant previously
has had the opportunity to cross-examine the unavail-
able witness. Nontestimonial statements, however, are
not subject to the confrontation clause and may be
admitted under state rules of evidence. . . . Thus, the
threshold inquiries that determine the nature of the
claim are whether the statement was hearsay, and if
so, whether the statement was testimonial in nature,
questions of law over which our review is plenary.’’
(Citations omitted; internal quotation marks omitted.)
State v. Smith, 289 Conn. 598, 617–19, 960 A.2d 993(2008).
We first consider, as an initial threshold inquiry,
whether Duke’s consent to the larceny investigation con-
stituted hearsay. ‘‘An out-of-court statement offered to
establish the truth of the matter asserted is hearsay.
. . . The hearsay rule forbids evidence of out-of-court
assertions to prove the facts asserted in them. If the
statement is not an assertion or is not offered to prove
the facts asserted, it is not hearsay.’’ (Citations omitted;
internal quotation marks omitted.) Farrell v. Johnson &
Johnson, 335 Conn. 398, 407, 238 A.3d 698 (2020); see
also Conn. Code Evid. §§ 8-1 and 8-2. ‘‘Subject to certain
exceptions, hearsay is inadmissible. . . . A statement
is defined as an oral or written assertion or . . . non-
verbal conduct of a person, if it is intended by the person
as an assertion.’’ (Citation omitted; internal quotation
marks omitted.) Loiselle v. Browning & Browning Real
Estate, LLC, 147 Conn. App. 246, 257, 83 A.3d 608 (2013);
see also Conn. Code Evid. §§ 8-1 and 8-2. ‘‘If the conduct
is assertive in nature, that is, meant to be a communica-
tion—like the nodding or shaking of the head in answer
to a question—it is treated as a statement, and the
hearsay rule applies.’’ (Internal quotation marks omit-
ted.) State v. King, 249 Conn. 645, 670, 735 A.2d 267(1999).
‘‘There are certain circumstances when, although the
witness did not repeat the statements of another person,
his or her testimony presented to the jury, by implica-
tion, the substance of another person’s statements. . . .
Under these circumstances, a witness has implied an
out-of-court statement of another by testifying to the
witness’ own verbal or nonverbal response to an identi-
fiable conversation.’’ (Citation omitted; internal quota-
tion marks omitted.) Loiselle v. Browning & Browning
Real Estate, LLC, supra, 147 Conn. App. 257–58; see
State v. Burton, 191 Conn. App. 808, 832–33, 216 A.3d
734 (concluding that unmarked photographic array doc-
uments offered for purpose of establishing inference
that eyewitnesses were unable to identify defendant
constituted implied hearsay), cert. denied, 333 Conn.
927, 217 A.3d 995 (2019).
We now turn to a category of nonhearsay statements
known as verbal acts. ‘‘A verbal act is an out-of-court
statement that causes certain legal consequences, or,
stated differently, it is an utterance to which the law
attaches duties and liabilities . . . [and] is admissible
nonhearsay because it is not being offered for the truth
of the facts contained therein.’’ (Internal quotation
marks omitted.) State v. Perkins, 271 Conn. 218, 255,
856 A.2d 917 (2004). Often cited examples of verbal
acts include words of offer and acceptance in a contract
action; Gyro Brass Mfg. Corp. v. United Automobile
Workers, Aircraft & Agricultural Implement Workers
of America, AFL-CIO, 147 Conn. 76, 80, 157 A.2d 241(1959); Carrano v. Hutt, 93 Conn. 106, 111, 105 A. 323(1918); defamatory statements in a slander action; Hay-
ward v. Maroney, 86 Conn. 261, 262, 85 A. 379 (1912);
an offer of a bribe; State v. Halili, 175 Conn. App. 838,
861, 168 A.3d 565, cert. denied, 327 Conn. 961, 172 A.3d
1261 (2017); and statements of conspirators that form
the basis of the conspiracy. State v. Azevedo, 178 Conn.
App. 671, 680–81, 176 A.3d 1196 (2017), cert. denied,
328 Conn. 908, 178 A.3d 390 (2018).
In the present case, Duke’s consent to the larceny
investigation was an out-of-court statement. See State
v. King, supra, 249 Conn. 670 (conduct that is meant
to be communication is treated as statement for hearsay
purposes). Moreover, although Detective Sear did not
repeat any of the specific words that Duke spoke, Detec-
tive Sear’s testimony presented to the jury, by implica-
tion, the substance of Duke’s statements during the
interview. Specifically, Detective Sear’s testimony
implied that, after being informed of the nature of the
investigation into the defendant’s conduct with respect
to the credit card transactions at issue, Duke communi-
cated to Detective Sear that the police had his permis-
sion to continue to pursue the larceny investigation
because the transactions were unauthorized, which is
precisely what the prosecutor argued in her closing
rebuttal argument. The full context of Detective Sear’s
testimony to the jury further highlights this implication.
That is, immediately before the question and answer
related to Duke’s consent, Detective Sear stated that
he met with Duke to ‘‘have him relay facts to me . . .
and develop what he could provide me with the informa-
tion as to his concerns and validate the complaint.’’
(Emphasis added.)
Next, we consider the purpose for which Duke’s out-
of-court statement of consent was admitted. We con-
clude for three reasons that it was admitted for the
truth of the matter asserted, and, thus, constituted hear-
say. First, the court stated, when ruling on the defen-
dant’s motion for a mistrial, that Duke’s consent was
not hearsay because it was a verbal act, but, even if it
were hearsay, it would be admissible under recognized
exceptions to the hearsay rule. Specifically, the court
said that it would admit the statement under the residual
exception, and that the statement was akin to a dying
declaration. Irrespective of whether these hearsay
exceptions were, in fact, applicable, it is significant that
the court indicated to the parties that it would admit
the statement even if it were hearsay.
Second, the court admitted the statement at issue
without limitation. ‘‘Evidence that is admissible . . .
for one purpose but not for another, is admissible . . .
for that purpose. The court may, and upon request shall,
restrict the evidence to its proper scope.’’ Conn. Code
Evid. § 1-4. ‘‘Absent a party’s request for a limiting
instruction, upon the admission of evidence, the court
is encouraged to instruct the jury on the proper scope
of the evidence or inquire whether counsel desires a
limiting instruction to be given.’’ Conn. Code Evid. § 1-
4, commentary; see also Rokus v. Bridgeport, 191 Conn.
62, 67, 463 A.2d 252 (1983) (‘‘it is the better practice
for the trial court to instruct the jury whenever evidence
is admitted for a limited purpose even when not
requested to do so’’). If Duke’s consent had been admit-
ted only as a verbal act, the jury should have been so
instructed.9 Because the court did not place any restric-
tion on the jury’s use of the testimony, the evidence
could be used for any purpose. See Curran v. Kroll,
303 Conn. 845, 864, 37 A.3d 700 (2012) (‘‘This evidence
was admitted in full, without limitation. In the absence
of any limiting instruction, the jury was entitled to draw
any inferences from the evidence that it reasonably
would support.’’). In the present case, the failure to
limit the purpose for which Duke’s statement of consent
came in was particularly egregious because, as we
explain subsequently, it resulted in a violation of the
defendant’s constitutional right to confrontation. See
State v. Atkins, 118 Conn. App. 520, 535–36, 984 A.2d
1088 (2009) (concluding, in context of reviewing for
plain error trial court’s failure to give limiting instruc-
tion concerning use of evidence of prior misconduct,
that ‘‘[t]he failure by the court to give, sua sponte, an
instruction that the defendant did not request, that is
not of constitutional dimension . . . is not so egre-
gious that it affects fundamental fairness or the integrity
of and public confidence in the judicial proceedings’’
(emphasis added)), cert. denied, 295 Conn. 906, 989 A.2d
119 (2010).
Third, the prosecutor’s closing rebuttal argument that
the jury should infer that the defendant made unautho-
rized purchases with Duke’s credit card because other-
wise Duke would not have consented to the police
pursuing charges against the defendant, is a powerful
indicia that the parties and the court understood that
Duke’s statement of consent was admitted for substan-
tive purposes. That is to say that if Duke’s statement
of consent was admitted solely as a verbal act, it would
have been improper for the prosecutor to argue that
Duke’s statement should be understood to mean that
he had not authorized the credit card transactions, par-
ticularly in light of the fact that Detective Sear had
testified, outside of the presence of the jury, that Duke
‘‘was insistent that he never authorized [gift card trans-
actions] and he never authorized any purchases within
the T.J. Maxx store . . . .’’ See State v. Alexander, 254
Conn. 290, 306, 755 A.2d 868 (2000) (‘‘A prosecutor, in
fulfilling his duties, must confine himself to the evi-
dence in the record. . . . Statements as to facts that
have not been proven amount to unsworn testimony,
which is not the subject of proper closing argument.’’
(Citations omitted; internal quotation marks omitted.)).
For Duke’s statement of consent to be admitted prop-
erly as a verbal act, the consent would have to be offered
for a purpose related not to its substance but, rather,
solely to the fact that it was given.10 See State v. Perkins,
supra, 271 Conn. 255. By simultaneously arguing that
Duke’s consent was admitted as a verbal act and that
the prosecutor’s substantive use of the consent in her
closing rebuttal argument did not constitute prosecu-
torial impropriety, the state attempts to have it both
ways. It cannot. The statement of consent was either
a verbal act and it was prosecutorial impropriety to
use it for substantive purposes in the closing rebuttal
argument, or, the statement of consent came in as
implied hearsay under an exception to the hearsay rule
and it was not improper for the prosecutor to use it
substantively in the closing rebuttal argument. We reach
the latter conclusion, and express no opinion as to
whether, under a different set of circumstances, an out-
of-court statement of consent could constitute a ver-
bal act.
The second inquiry under our confrontation jurispru-
dence is to determine whether the statement at issue
is testimonial in nature. See State v. Smith, supra, 289
Conn. 622 (‘‘the confrontation clause applies only to
statements that are testimonial in nature’’). During oral
argument before this court, the state conceded that if
we were to conclude that Duke’s statement of consent
came in for substantive purposes, it was testimonial in
nature. See State v. Sinclair, 332 Conn. 204, 219–20,
210 A.3d 509 (2019) (‘‘Statements are nontestimonial
when made in the course of police interrogation under
circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assis-
tance to meet an ongoing emergency. They are testimo-
nial when the circumstances objectively indicate that
there is no such ongoing emergency, and that the pri-
mary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution.’’ (Emphasis in original; internal quotation
marks omitted.)). Because we have determined that
Duke’s statement of consent came in for its truth and
the state has conceded that under such circumstances
the statement was testimonial, and because the state-
ment was provided amidst an interrogation to establish
or prove past events potentially relevant to later crimi-
nal prosecution, we conclude that the statement was
testimonial in nature.
As previously mentioned, pursuant to Crawford,
‘‘hearsay statements of an unavailable witness that are
testimonial in nature may be admitted in accordance
with the confrontation clause only if the defendant pre-
viously has had the opportunity to cross-examine the
unavailable witness.’’ (Internal quotation marks omit-
ted.) Id., 218. In the present case, it is undisputed that
Duke was unavailable because he had died; State v.
Frye, 182 Conn. 476, 481, 438 A.2d 735 (1980); the defen-
dant did not previously have the opportunity to cross-
examine him, and Duke’s consent to the larceny investi-
gation was testimonial in nature. Therefore, the court
violated the defendant’s right to confrontation under the
federal constitution by admitting, without limitation,
Detective Sear’s testimony that Duke consented to the
larceny investigation.
This conclusion, however, does not end our inquiry.
We must also consider whether the defendant was
harmed by this error. ‘‘Because the error is constitu-
tional in magnitude, the state has the burden of proving
[that] the constitutional error was harmless beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Hutton, 188 Conn. App. 481, 521, 205 A.3d 637(2019). ‘‘Whether such error is harmless in a particular
case depends upon a number of factors, such as the
importance of the witness’ testimony in the prosecu-
tion’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or con-
tradicting the testimony of the witness on material
points, the extent of cross-examination otherwise per-
mitted, and, of course, the overall strength of the prose-
cution’s case. . . . Most importantly, we must examine
the impact of the evidence on the trier of fact and the
result of the trial. . . . If the evidence may have had
a tendency to influence the judgment of the jury, it
cannot be considered harmless.’’ (Internal quotation
marks omitted.) State v. Smith, supra, 289 Conn. 628.
First, we conclude that this is a close case because
there was a dearth of evidence on the critical factual
question of whether Duke authorized the defendant to
use his credit card to purchase items for her personal
use, or whether the defendant wrongfully appropriated
Duke’s money for such purchases. In other words, the
key question to be answered by the jury was whether
the items that the defendant purchased with Duke’s
credit cards were gifts, or whether they were stolen.
Additionally, it is important to note that the jury was
presented with evidence that Duke often had gifted
the defendant money, and the state did not charge the
defendant for theft of those funds. Moreover, there are
only two people who could have definitively answered
the critical question: the defendant and Duke. By virtue
of the admission of Detective Sear’s testimony that
Duke consented to the larceny investigation, Duke
effectively testified against the defendant on this critical
issue, from the grave, without ever having been sub-
jected to cross-examination. See State v. Hutton, supra,
188 Conn. App. 503–504 (‘‘[t]he test of cross-examina-
tion is the highest and most indispensable test known
to the law for the discovery of truth’’ (internal quotation
marks omitted)). Indeed, the defendant never had an
opportunity to ask Duke under oath whether he had
consented to the investigation because he did not autho-
rize the credit card transactions or, conversely, whether
he had let the defendant use the credit card for personal
reasons and that he had consented to the investigation
in the belief that she would be exonerated. Finally, we
note that less than ten minutes after the jury reheard
Detective Sear’s testimony it returned a guilty verdict.
These circumstances suggest that the admission of
Detective Sear’s testimony influenced the judgment of
the jury.
The state argues that the court’s error in admitting
Detective Sear’s testimony was harmless beyond a rea-
sonable doubt because (1) Ben Duke also testified that
Duke had given him permission to go to the police
regarding the credit card transactions at issue,11 and (2)
in light of the other evidence at trial, the jury reasonably
could have concluded that the defendant’s use of Duke’s
credit card was unauthorized.
We are not persuaded. With respect to the state’s first
argument, we acknowledge that Duke’s improperly
admitted statement could be considered cumulative of
Ben Duke’s testimony, and, as such, that factor favors
the state’s position that the admission of Duke’s consent
was harmless. As the defendant points out, however,
Ben Duke is an individual with both a financial and
emotional interest in the outcome of the case, and,
therefore, his testimony on this issue likely would have
carried less weight with the jury than the hearsay state-
ment of the witness, Duke, who had a critical perspec-
tive in the matter.
As to the state’s second argument, it fails to appreci-
ate the magnitude of the state’s burden. It is not suffi-
cient to say that the jury could have reached the same
result in the absence of the improperly admitted testi-
mony. The state must establish, beyond a reasonable
doubt, that the improperly admitted testimony did not
have a tendency to influence the judgment of the jury.
In this vein, with respect to the overall strength of the
prosecution’s case, we consider the following to be
significant: (1) there were a number of letters submitted
into evidence, written by Duke, that corroborated the
defendant’s story that the two were having a romantic
relationship and that he enjoyed providing for her finan-
cially; (2) the evidence suggests that Duke was aware
of the defendant’s spending on his credit card, as he
was the one that wrote the checks to pay for the charges;
and (3) aside from Ben Duke and Detective Sear’s testi-
mony that Duke authorized and/or consented to the
larceny investigation, there was no other evidence
regarding Duke’s mindset after the defendant’s employ-
ment was terminated.
Under these circumstances, we conclude that Detec-
tive Sear’s testimony that Duke consented to the larceny
investigation may have had a tendency to influence the
jury’s decision to find the defendant guilty of larceny
of an elderly person by embezzlement in the second
degree in violation of §§ 53a-119 (1) and 53a-123 (a)
(5). As such, the state has failed to meet its burden of
proving, beyond a reasonable doubt, that the improper
admission of Detective Sear’s testimony and its effect
on the jury was harmless.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
The sixth amendment to the United States constitution provides in rele-
vant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him . . . .’’ U.S. Const.,
amend. VI. ‘‘[T]he sixth amendment rights to confrontation and to compul-
sory process are made applicable to state prosecutions through the due
process clause of the fourteenth amendment.’’ (Internal quotation marks
omitted.) State v. Holley, 327 Conn. 576, 593, 175 A.3d 514 (2018).
2
Article first, § 8, of the Connecticut constitution provides in relevant
part: ‘‘In all criminal prosecutions, the accused shall have a right . . . to
be confronted by the witnesses against him . . . .’’
3
We refer to Robert Duke, Sr., and Jeanette Duke collectively as the Dukes.
4
The defendant testified that Duke came up with two different ‘‘plans’’
concerning the money that he was giving to her. The first plan was to say
that Duke was giving money to the defendant as a loan that she would repay
when she sold a property that she owned in Jamaica. The second plan,
which took effect after the defendant returned to work in approximately
April, 2012, was to say that the defendant had breast cancer and the money
from Duke was to pay for medical expenses. The defendant further testified
that she used the money for her business and to take care of herself and
her family.
5
General Statutes § 53a-119 provides in relevant part: ‘‘A person commits
larceny when, with intent to deprive another of property or to appropriate
the same to himself or a third person, he wrongfully takes, obtains or
withholds such property from an owner. Larceny includes, but is not limited
to: (1) Embezzlement. A person commits embezzlement when he wrongfully
appropriates to himself or to another property of another in his care or
custody. . . .’’
6
General Statutes § 53a-123 (a) provides in relevant part: ‘‘A person is
guilty of larceny in the second degree when he commits larceny, as defined
in section 53a-119, and . . . (5) the property, regardless of its nature or
value, is obtained by embezzlement, false pretenses or false promise and
the victim of such larceny is sixty years of age or older, or is a conserved
person . . . or is blind or physically disabled . . . .’’
7
Specifically, the court stated, inter alia: ‘‘It’s an act. I agree, is an act.
It’s not—it’s not a statement of fact. So it’s not even hearsay. . . . [Y]our
exception is noted for the record. I would note that even if—under the totality
of the circumstances offered at the hearing and during today’s testimony,
that even if it were hearsay, I would still admit it under the residual hearsay
evidence rule in as much as it’s apparent under the totality of the circum-
stances, that the statements were—that the circumstances under which the
statement was made bore a high level of credibility and authenticity.
‘‘It was taken at a time when [Duke] obviously was very concerned about
his finances and had every reason to be fully transparent with the investiga-
tion about the nature of his finances.
‘‘It’s almost, it’s not exactly, but it’s almost like a dying declaration. Some-
body in that situation, I think would be very, very interested in getting his
finances in order. So it bears independent indicia of reliability.
‘‘And therefore, even if it were hearsay it would—it would be admissible.
And it was not, in my view, testimonial nature.
‘‘And again, at the very heart of it, it’s not a statement, it’s an act.’’
8
The state concedes that the defendant’s claim under the federal constitu-
tion is preserved. It maintains, however, that the defendant’s claim under the
state constitution is not preserved. Because we conclude that the defendant’s
right to confrontation under the federal constitution was violated, it is
unnecessary to consider whether the state constitution provides greater
constitutional protections with respect to the right to confrontation.
9
The fact that the defendant did not ask for a limiting instruction, with
respect to the admission of Duke’s consent solely as a verbal act, is not
fatal to her claim because such a request likely would have been futile in
light of the fact that the court said it would admit the statement even if it
were hearsay.
10
We note that, here, Duke’s statement of consent does not appear to
have had any legal consequence, as the police generally do not require
consent from the victim of an alleged crime in order to conduct an investiga-
tion. See State v. Perkins, supra, 271 Conn. 255 (‘‘verbal act is an out-of-
court statement that causes certain legal consequences’’ (internal quotation
marks omitted)). Moreover, to the extent that Detective Sear testified that
the police require a sworn statement to make a complaint official, Ben Duke
provided such a sworn statement before Detective Sear interviewed Duke.
11
Specifically, Ben Duke testified: ‘‘My father said I could go to the police.
. . . And so I had his authorization [to] do that.’’ The defendant has not
challenged the admission of this testimony.