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STATE OF CONNECTICUT v. BILLY RAY WRIGHT
(SC 19411)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and
Vertefeuille, Js.
Argued February 24—officially released August 2, 2016
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and John Waddock, supervisory assis-
tant state’s attorney, for the appellant (state).
Lisa J. Steele, assigned counsel, for the appellee
(defendant).
Opinion
McDONALD, J. This certified appeal requires us to
consider a defendant’s rights and obligations when he
seeks to advance a theory of defense that the police
investigation into the crime with which he was charged
was inadequate. The state appeals from the judgment
of the Appellate Court, which reversed the judgment
of conviction of the defendant, Billy Ray Wright, of
murder and remanded the case for a new trial. The
Appellate Court held that the trial court violated the
defendant’s right to a fair trial by limiting his cross-
examination of the investigating police officers as to
whether the murder investigation conformed to general
police practices and/or standard police investigative
procedures. State v. Wright, 152 Conn. App. 260, 269,
96 A.3d 638 (2014). We conclude that, in the absence
of a sufficient offer of proof regarding this line of ques-
tioning, the trial court’s rulings limiting cross-examina-
tion to the adequacy of the investigation at hand cannot
be deemed improper. We therefore reverse the judg-
ment of the Appellate Court.
The record reveals the following undisputed facts
and procedural history. The victim, Ronald Bethea, was
shot from behind as he stood a short distance from a
small crowd of people outside a New Haven bar just
before the bar’s closing at 2 a.m. on April 27, 2008. The
crowd scattered upon hearing the gunshot. The victim
staggered into the bar, collapsed, and lost conscious-
ness. He later died from his wound.
Police officers with the New Haven Police Depart-
ment arrived at the scene minutes later. The first offi-
cers to arrive operated under the assumption that the
shooting had occurred inside the bar, based on informa-
tion to that effect relayed by a dispatcher, the victim’s
location, and the statements of persons outside the bar.
It was only after the department’s detectives subse-
quently arrived and reviewed surveillance video from
several cameras positioned inside and outside the bar
that it was ascertained that the shooting occurred out-
side the bar. The investigation that ensued led to the
defendant being charged with the victim’s murder.
The state’s evidence at the defendant’s trial consisted
entirely of circumstantial evidence. The principal evi-
dence was the surveillance video, which, in grainy
images, showed the perpetrator’s movements from
inside the bar to outside the bar prior to the murder.
The surveillance video of activity outside of the bar
showed the perpetrator approach two people, give one
person a handshake and a sort of hug, walk away after
that encounter, approach the victim from behind, and
then shoot the victim with a gun hidden under his jacket.
Although no witness identified the defendant as the
perpetrator from that video,1 an acquaintance of the
defendant, Denard Lester, identified himself as the per-
son on the video being given the handshake and he had
made a prior statement under oath that the defendant
had given him ‘‘dap’’ (described as a handshake and
hug) outside the bar on the evening of the shooting.2
Another witness corroborated that she was with Lester
outside the bar when someone had given Lester ‘‘dap’’
shortly before the shooting occurred. The two owners
of the bar identified the defendant and Lester as being
present in the bar that evening.
On the first day of trial, the state offered the testimony
of four New Haven police officers who responded to
or processed the crime scene. On cross-examination,
defense counsel sought to question these witnesses
regarding their investigation into the murder. The trial
court sustained the state’s objections to several of
defense counsel’s questions. These evidentiary rulings
form the basis of the dispute in this appeal.
The first witness, Officer David Parker, had attended
to the victim and had not played any investigative role
in the murder. On cross-examination, defense counsel
established that Parker had never relayed to other offi-
cers that he had observed people running from the
scene upon his arrival, or taken any steps to determine
the perpetrator’s identity. After defense counsel estab-
lished that Parker had responded on other occasions
to shooting incidents prior to the murder of the victim,
the state objected on the ground of relevance when
defense counsel asked: ‘‘And when you arrived at a
shooting, do—do you try to determine whether or not
any witnesses were at the scene?’’ Defense counsel
responded: ‘‘It’s not just what he did, Your Honor, that’s
relevant. It’s also what he didn’t do that’s relevant.’’ The
court sustained the objection.
The second witness, Officer Terrence McNeil, testi-
fied that, although he was not instructed to do so, he
had made repeated efforts to canvass for potential wit-
nesses upon his arrival at the scene but ‘‘nobody wanted
to get involved.’’ On cross-examination, defense counsel
established that during those canvasses, McNeil had
not: (1) asked anyone for identification even though he
could have; (2) noted descriptions of people present at
the scene; (3) canvassed homes across the street from
the bar to ascertain whether anyone had seen anything;
or (4) noted the license plate numbers of the vehicles
that people leaving the scene had entered. Defense
counsel established that McNeil previously had
responded to many shootings, and then sought to ask:
‘‘And one of the things you want to determine is where
the shooting occurred, correct?’’ The court sustained
the state’s objection, ruling: ‘‘What’s relevant is his
actions on the evening of April 27, 2008.’’ The court
later sustained the state’s relevance objection when
defense counsel attempted to ask: ‘‘Well, this is not a—
a reaction that was new to you, people not wanting to
get involved, correct?’’ The court reiterated: ‘‘Counsel
it has to be related to this day.’’
Defense counsel then asked for the jury to be
excused. After the court did so, defense counsel argued:
‘‘This . . . is not the . . . first shooting [McNeil has]
responded to. . . . His investigative skills are honed
over thirteen years of experience. What he does relates
to that experience. Okay. For me to say to him this is
not the first time he’s responded to a shooting where
people were not cooperative is just preliminary to me
asking him well . . . having had people refuse to coop-
erate in the past have you taken steps to secure that
cooperation other than merely asking them to cooper-
ate. I mean it’s not as if—it’s just what he did at the
scene here. When he is confronted with uncooperative
witnesses, there are other things he can do in order to
secure that cooperation. It’s not the first scene where
he’s gone to where people did not . . . want to get
involved.’’ The court responded that questions per-
taining to what McNeil did or did not do in connection
with this particular investigation were proper, but ques-
tions regarding other investigations were not relevant.
Defense counsel requested to make a further offer of
proof by questioning McNeil, which the court allowed.
Defense counsel then asked McNeil only two questions:
‘‘When people tell you that they don’t want to cooperate,
is there anything you can do to secure that coopera-
tion?’’; and ‘‘When you are confronted with noncoopera-
tion of potential witnesses as you were in this case,
can you take any other steps other than merely asking
them to cooperate?’’ The state objected, but noted that
it would have no objection to questions limited to the
events of April 27, 2008. The court responded that it
had understood defense counsel’s question to be related
to that date. After confirming with defense counsel that
he had nothing further, the court recalled the jury.
When cross-examination resumed, defense counsel
asked McNeil: ‘‘When you are faced with this noncoop-
eration by the people you spoke to, was there anything
you could have done in light of that noncooperation to
secure their cooperation?’’ McNeil responded, ‘‘No.’’
Defense counsel then attempted to ask: ‘‘Well, wouldn’t
some of the people not want to give you information
in front of other people? . . . Is that one of the things
you were cognizant of?’’ The court sustained the state’s
objection on the ground that the questions called for
speculation. Defense counsel then asked in rapid suc-
cession, with objections from the state and comments
from the court interposed: ‘‘Well, if you had [the poten-
tial witnesses’] names that you didn’t secure and you
approached them when they were home and not in
front of a crowd of people, is that something that is
done . . . on occasion? . . . You couldn’t have done
that? . . . Some people don’t like to give information
in front of other people, isn’t that correct, Officer?’’ The
court also sustained objections to these questions.
During a subsequent jury recess, defense counsel
stated to the court: ‘‘In regard to . . . my cross-exami-
nation to what was done by the police officers in this
case the state is going to get up and argue during closing
argument, at least in everything humanly possible, as—
and they were unable to have any witnesses, it’s not
their fault. The fact of the matter is, Your Honor, that
they didn’t do everything humanly possible. And what
they didn’t do is as relevant in this case as what they
did do because they do not have any eyewitness to this
shooting, and what steps they . . . took or didn’t take
to secure an eyewitness is important. Now, for me not
to be able to ask an officer when you . . . canvass
a crowd of people and say, does anybody have any
information . . . we all know in the real world a lot
of people don’t come forward to be labeled a snitch in
front of a crowd . . . but had he gotten identification,
which he could have gotten, then he could have
approached these people when they had been alone
to try to determine whether or not anybody had seen
anything. . . .
‘‘Your Honor, nobody cooperated at the scene but
that did not foreclose them from pursuing other avenues
with the same people had they gotten their names. And
for me not to ask a police officer, isn’t it true that
some people are not forthcoming in groups but when
approached later in a one-to-one situation have pro-
vided information? And why didn’t you take steps to
ensure that you identified those people so you could
at a later date go to them outside of a group of people
to ask them if they had seen anything? I mean, I . . .
don’t understand why I would be foreclosed from . . .
inquiring as to why [they] didn’t do those things.’’
The court responded: ‘‘I made my rulings based on
what this witness said here. I don’t know what else I’m
going [to] hear from detectives who were in charge and
investigating this case. But I . . . made my rulings with
relevancy with [Officer McNeil] concerning his activi-
ties on April 27, 2008. . . . That does not mean if I
hear—you know, I don’t know what other evidence I’m
going to hear from the state and I’m not sure if you
are too, about detectives and captains and what their
procedure is and was on that particular night . . . but
I stand by my rulings . . . .’’ Defense counsel reiterated
his concern that the state would ‘‘say the police did
everything humanly possible and were unable to
develop any witnesses to the shooting,’’ and that he
‘‘would like to be able to say, well, they didn’t . . . .’’
The state’s case thereafter resumed with its third
witness, Detective Herbert V. Johnson III. Johnson testi-
fied that he had arrived at the scene approximately one
hour after the shooting and had been assigned specific
duties that did not include canvassing witnesses.
Defense counsel established that Johnson had not: (1)
conducted any type of canvass; (2) inquired as to what
efforts other officers had made to develop potential
witnesses; (3) instructed officers to canvass the homes
across the street; or (4) attempted to establish a motive
for the shooting. Defense counsel was precluded, on
the ground of relevance, from asking Johnson as to
whether he was ‘‘unable to determine whether anybody
was outside smoking when the shooting occurred.’’
The state’s fourth witness, Detective Bridgett Brosna-
han of the department’s Bureau of Identification, had
photographed the scene and collected potential physi-
cal evidence. On direct examination, Brosnahan testi-
fied that she had collected some ‘‘fiber-like materials’’
from the scene. On cross-examination, defense counsel
established that those materials had not been tested to
determine color or composition, even though they could
have been.3 When defense counsel attempted to ask
Brosnahan whether she ever suggests to detectives
working a case with her that further testing is necessary,
the state sought clarification, saying that it would have
no objection if defense counsel was ‘‘referring to this
case . . . .’’ Defense counsel responded: ‘‘I’m not just
asking about this case. . . . I’m asking about general
procedures between [the Bureau of Identification] and
detectives.’’ The court instructed defense counsel to
limit the question ‘‘to the events of April 27, 2008.’’
On the second day of trial, before the jury entered
the courtroom, defense counsel expressed his general
disagreement with the trial court’s rulings of the prior
day. Defense counsel argued that he should be able to
elicit testimony to demonstrate that the officers could
have done more to secure potential witnesses. Appar-
ently in reference to the lead investigating detective,
whom defense counsel anticipated would be called by
the state to testify that day, defense counsel stated:
‘‘I’m going to establish that he is an expert and at that
point I think I could ask him hypothetical questions
that do not stem from the evidence in this case . . . .
I’m going to ask him about isn’t it true that certain
people cannot come forward and do not cooperate in
a group setting, but may be amenable to speaking to
the police one-on-one. Isn’t it important to establish
who was present, at least, to get their names and if
they aren’t cooperative, go back and speak with them.’’
The court expressed no opinion on defense counsel’s
proposal, instead addressing another evidentiary matter
that had been raised earlier. The state never called the
lead detective to testify, and the defense did not seek
to proffer the detective as its own witness. The defense
offered no other witnesses nor did it attempt to intro-
duce evidence relating to investigative practices or pro-
cedures.
The jury found the defendant guilty of murder. The
court rendered judgment in accordance with the
verdict.
On appeal before the Appellate Court, the defendant
claimed that he had been deprived of his constitutional
right to present a defense because the trial court
improperly limited the scope of his cross-examination
of the investigating police officers regarding the ade-
quacy of their investigation. State v. Wright, supra, 152
Conn. App. 263. With regard to the issue in this certified
appeal, the defendant specifically contended that the
trial court improperly had limited his cross-examination
of the investigating officers regarding what the officers
did or did not do by way of investigation on the night
of the murder and precluded his broader inquiry into
police procedures generally followed in cases like his.
Id., 268–69. The Appellate Court concluded that the
defendant had been permitted to inquire into what the
officers did not do in his case, but determined that ‘‘it
was equally important for the defendant to be permitted
to bring to the attention of the jury any differences
there may have been between what [the officers] did
not do in this investigation and general or ordinary
police procedures that they had followed in other mur-
der cases.’’ Id., 275–76. The Appellate Court character-
ized the defendant’s questions as seeking ‘‘to elicit
testimony as to whether the police, in not pursuing
certain avenues of investigation or possible procedures,
were acting in accord with past practices or with what
could be regarded as standard police investigative pro-
cedures.’’ Id., 269. The court saw no reason why the
police officers could not have been qualified as expert
witnesses and asked such questions on the basis of
their training and experience. Id., 276. The court held
that the trial court’s refusal to permit such an inquiry
violated the defendant’s right to a fair trial and required
a new trial in light of the tenuous nature of the state’s
case. Id., 274, 282.
We thereafter granted the state’s petition for certifica-
tion to appeal to this court, limited to the following
issues: (1) ‘‘Did the Appellate Court properly determine
that the trial court had abused its discretion by preclud-
ing the defendant from asking certain questions during
cross-examination about the police investigation in this
case?’’; and (2) ‘‘If the answer to the first question is
‘yes,’ did these evidentiary improprieties deprive the
defendant of his constitutional right to a fair trial?’’ State
v. Wright, 314 Conn. 941, 941–42, 103 A.3d 165 (2014).
The state claims that the Appellate Court’s reasoning
was flawed in two principal respects. First, it contends
that the Appellate Court improperly created a new rule
deeming a defendant constitutionally entitled to inquire
into police practices and procedures. Second, it con-
tends that, even if a defendant may permissibly inquire
into police practices and procedures, in the present
case, the defendant failed to make an offer of proof to
establish his intention to present a defense that the
police had deviated from those practices or procedures,
let alone establish that their actions had not conformed
to any such practices or procedures.
We disagree with the state that the Appellate Court
adopted a per se rule deeming a defendant constitution-
ally entitled to present evidence that the police investi-
gation failed to conform to standard practices or
operating procedures. We read the Appellate Court’s
decision simply to hold that, under the facts of the
present case, the trial court’s limitation on cross-exami-
nation was of constitutional dimension because it pre-
cluded the defendant from placing the police officers’
investigation into a meaningful context for purposes of
the defendant’s inadequate investigation defense. State
v. Wright, supra, 152 Conn. App. 274–76.
We do not consider, however, whether that determi-
nation was correct. We conclude that because neither
the defendant’s proposed questions nor his offer of
proof established the basis for a claim that the police,
in not pursuing certain avenues of investigation, had
failed to act in accordance with past established prac-
tices or standard police investigative procedures, he
cannot establish that the trial court improperly pre-
cluded him from advancing an inadequate investigation
defense on this basis.
This court has not previously addressed the parame-
ters of an inadequate investigation defense. Nonethe-
less, this court has recognized that defendants may use
evidence regarding the inadequacy of the investigation
into the crime with which they are charged as a legiti-
mate defense strategy. See State v. Collins, 299 Conn.
567, 599–600, 10 A.3d 1005, cert. denied, U.S. ,
132 S. Ct. 314, 181 L. Ed. 2d 193 (2011). Collins involved
a challenge to a jury instruction stating that the ultimate
issue to be decided was not the thoroughness of the
investigation, but whether the state had proven the
defendant’s guilt beyond a reasonable doubt. Id. In con-
cluding that the instruction was not improper, we
explained: ‘‘In the abstract, whether the government
conducted a thorough, professional investigation is not
relevant to what the jury must decide: Did the defendant
commit the alleged offense? Juries are not instructed
to acquit the defendant if the government’s investigation
was superficial. Conducting a thorough, professional
investigation is not an element of the government’s
case. . . . A defendant may, however, rely upon rele-
vant deficiencies or lapses in the police investigation
to raise the specter of reasonable doubt, and the trial
court violates his right to a fair trial by precluding the
jury from considering evidence to that effect.’’4 (Cita-
tions omitted; internal quotation marks omitted.) Id.;
see also Kyles v. Whitley, 514 U.S. 419, 446 and n.15,
115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) (acknowledging
that it is common and accepted tactic for defendants
to challenge adequacy of police investigation).
As another court has explained: ‘‘[T]he inference that
may be drawn from an inadequate police investigation
is that the evidence at trial may be inadequate or unrelia-
ble because the police failed to conduct the scientific
tests or to pursue leads that a reasonable police investi-
gation would have conducted or investigated, and these
tests or investigation reasonably may have led to signifi-
cant evidence of the defendant’s guilt or innocence. A
jury may find a reasonable doubt if they conclude that
the investigation was careless, incomplete, or so
focused on the defendant that it ignored leads that
may have suggested other culprits.’’ Commonwealth
v. Silva-Santiago, 453 Mass. 782, 801, 906 N.E.2d 299
(2009); see also Sample v. State, 314 Md. 202, 207, 550
A.2d 661 (1988) (explaining that, when ‘‘the [s]tate has
failed to utilize a well-known, readily available, and
superior method of proof to link the defendant with
the criminal activity, the defendant ought to be able to
comment on the absence of such evidence’’).
Other jurisdictions have recognized that evidence
that the police failed to follow routine practices or
standard procedures can be relevant to an inadequate
investigation defense strategy. See State v. Hites-Cla-
baugh, 251 Or. App. 255, 259–67, 283 P.3d 402 (2012)
(concluding that evidence of protocols for investigating
sexual abuse cases, to prove that such protocols had not
been followed, was improperly precluded). Standard
procedures presumably reflect departmental recogni-
tion that certain actions are necessary to ensure the
integrity of an investigation or are productive insofar
as they often yield useful information. Cf. Common-
wealth v. Bowden, 379 Mass. 472, 486, 399 N.E.2d 482
(1980) (‘‘[t]he fact that . . . certain police procedures
[were] not followed could raise a reasonable doubt
as to the defendant’s guilt’’). Although perhaps not as
weighty evidence as standard operating procedures,
routine practices reflect experience that such a practice
has reliably produced material information.
A defendant, however, does not have an unfettered
right to elicit evidence regarding the adequacy of the
police investigation. The reference in Collins to ‘‘rele-
vant deficiencies or lapses in the police investigation’’
suggests that the defendant must do more than simply
seek to establish that the police could have done more.
(Emphasis added.) State v. Collins, supra, 299 Conn.
599; see also Thompson v. State, 399 A.2d 194, 198 (Del.
1979) (‘‘[The] defendant failed to demonstrate how his
witnesses’ testimony was relevant and material to that
issue. The mere possibility that exculpatory evidence
might have been found through a more extensive inves-
tigation by the [s]tate is an insufficient demonstra-
tion.’’); Commonwealth v. Silva-Santiago, supra, 453
Mass. 801 (citing ‘‘tests or investigation [that] reason-
ably may have led to significant evidence of the defen-
dant’s guilt or innocence’’ [emphasis added]); People
v. Hayes, 17 N.Y.3d 46, 53, 950 N.E.2d 118, 926 N.Y.S.2d
382 (‘‘[A] criminal defendant does not have an unfet-
tered right to challenge the adequacy of a police investi-
gation by any means available. It is well settled that
[a]n accused’s right to cross-examine witnesses . . .
is not absolute . . . .’’ [Citation omitted; internal quota-
tion marks omitted.]), cert. denied sub nom. Hayes v.
New York, U.S. , 132 S. Ct. 844, 181 L. Ed. 2d 553
(2011). Even when such evidence has some probative
value, the court must consider ‘‘whether the probative
weight of the . . . evidence exceed[s] the risk of unfair
prejudice to the [state] from diverting the jury’s atten-
tion to collateral matters.’’ (Internal quotation marks
omitted.) Commonwealth v. Alcantara, 471 Mass. 550,
561–62, 31 N.E.3d 561 (2015); see also State v. Brown,
273 Conn. 330, 342–43, 869 A.2d 1224 (2005) (trial court
reasonably could have determined that questioning
police officer about departmental policies regarding use
of deadly force and officer’s prior use of deadly force
under questionable circumstances in other cases poten-
tially would have confused issues and diverted jury’s
attention to collateral issue of propriety of officer’s
conduct in light of departmental standards); Conn. Code
Evid. § 4-3 (exclusion of relevant evidence on grounds
of prejudice, confusion, or waste of time).
All of these factors must be evaluated by the trial
court in determining whether the particular inadequate
investigation evidence should be admitted. That evalua-
tion necessarily is framed by the theory of the proffering
party. It is well settled that ‘‘[t]he proffering party bears
the burden of establishing the relevance of the offered
testimony. Unless a proper foundation is established,
the evidence is irrelevant. . . . Relevance may be
established in one of three ways. First, the proffering
party can make an offer of proof. . . . Second, the
record can itself be adequate to establish the relevance
of the proffered testimony. . . . Third, the proffering
party can establish a proper foundation for the testi-
mony by stating a good faith belief that there is an
adequate factual basis for his or her inquiry.’’ (Internal
quotation marks omitted.) State v. Benedict, 313 Conn.
494, 511, 98 A.3d 42 (2014).
In the present case, the defendant first asserts that
he ‘‘explained [to the trial court] his intent was to estab-
lish that the officers had investigated other homicide
cases, qualify the officer[s] as . . . expert[s], and then
ask whether there were steps the officer[s] had taken in
other homicide cases to identify and contact witnesses
[who] could have been used in this case.’’ The record
is clearly to the contrary.5
Although police officers who are properly qualified
on the basis of their training and/or experience often
are used as expert witnesses; see, e.g., State v. Camp-
bell, 225 Conn. 650, 655, 626 A.2d 287 (1993); State v.
Girolamo, 197 Conn. 201, 215, 496 A.2d 948 (1985); State
v. Cosgrove, 181 Conn. 562, 587–88, 436 A.2d 33 (1980);
the defendant never asked to qualify any of the testifying
officers as an expert. Defense counsel only stated dur-
ing his offer of proof that McNeil’s actions were related
to McNeil’s ‘‘experience,’’ which cannot reasonably be
construed as an expression of an intention to qualify
McNeil as an expert. By contrast, the day after comple-
tion of the testimony of the four officers at issue,
defense counsel expressed a clear intention to qualify
a prospective police witness as an expert. At that time,
defense counsel never indicated that his questions from
the prior day were aimed at a similar intent.
The record does not contain sufficient evidence to
qualify the witnesses as experts, and the defendant did
not seek to elicit information that would have done
so. The state elicited testimony on direct examination
regarding the length of each officer’s tenure. No infor-
mation was elicited regarding training or duties. The
testimony established that Parker and Brosnahan had
minimal experience in their positions at the time of
the murder, one year and approximately two years,
respectively. Although McNeil and Johnson had thirteen
and fourteen years with the police force at the time of
trial, respectively, the closest the defendant came to
building on that information was to establish that
McNeil had responded to ‘‘many’’ shootings during
his tenure.
The defendant also did not seek to elicit information
regarding routine practices or standard police operating
procedures for any period of time, let alone the time
of the crime. Defense counsel’s questions instead asked
whether the officer ‘‘ever’’ did something; whether a
particular response was ‘‘new’’ to the officer; whether
something had been done ‘‘on occasion’’; and other
questions that generally sought information about
whether some action previously had been undertaken
in some other cases. Defense counsel never asked
whether the officer had undertaken the action in ques-
tion ‘‘routinely,’’ ‘‘consistently,’’ ‘‘regularly,’’ or any term
of like effect.6 Nor did the defendant attempt to intro-
duce documentary evidence or proffer his own witness
regarding any police investigative protocols or proce-
dures that have been adopted by national, state, or local
law enforcement agencies or organizations.
Most significantly, when the defendant made his offer
of proof, he never addressed routine practices or stan-
dard operating procedures at the time of the crime.
He did not elicit evidence as to the existence of such
practices or procedures, the failure to adhere to such
practices or procedures, or the possibility that adher-
ence to such practices or procedures could have led to
material evidence of the defendant’s guilt or innocence.
See, e.g., State v. Shaw, 312 Conn. 85, 106, 90 A.3d 936
(2014) (offer of proof must be sufficient to show that
evidence sought to be explored is relevant); State v.
Esposito, 235 Conn. 802, 832–33, 670 A.2d 301 (1996)
(defendant, as proffering party, bore burden of making
sufficient offer of proof); see also State v. Bova, 240
Conn. 210, 226, 690 A.2d 1370 (1997) (defendant’s offer
of proof failed to establish evidentiary foundation suffi-
cient to support inference establishing relevancy of
proffered testimony).
Instead, the defendant’s offer of proof consisted only
of two questions to McNeil regarding whether McNeil
could have done more to obtain cooperation from
potential witnesses. Defense counsel’s subsequent
arguments repeatedly underscored that he wanted to
inquire into what the officers had not done in the defen-
dant’s case, which he was permitted to do, and what the
officers had done in some other investigations, which he
was not permitted to do. The latter inquiry is not the
same as one directed at establishing that the officers
had failed to follow routine practices or standard proce-
dures. Nor is it tantamount to laying a foundation for
establishing recognized practices or procedures and a
failure to comply therewith. Although defense counsel
stated, prior to questioning McNeil for his offer of proof,
that his overruled questions had been ‘‘preliminary,’’
his questions to McNeil never inquired further into prac-
tices or procedures.
Indeed, defense counsel’s lone reference to a matter
akin to routine practices or standard procedures was
a complete non sequitur relating to a witness who was
not qualified to offer such testimony. Specifically, in
response to the state’s request for clarification regard-
ing his question to Brosnahan whether she ‘‘ever’’ sug-
gests to detectives that further testing is necessary,
defense counsel asserted that he was asking about ‘‘gen-
eral procedures between [the Bureau of Identification]
and detectives.’’ The question plainly did not relate to
standard procedures, and defense counsel never
rephrased his question to relate to such procedures.
Moreover, Brosnahan had a limited tenure with the
bureau, and had not been asked about the extent of
her experience in a manner that could qualify her as
an expert.
The defendant’s second argument implicitly con-
cedes the deficiencies in the record. He repeatedly
asserts that he ‘‘was not allowed to make an offer of
proof’’ and that the ‘‘trial court violated [his] constitu-
tional rights . . . by not letting him make a full offer
of proof.’’7 The record is clearly to the contrary on this
point as well.
The trial court permitted the defendant to make an
offer of proof through his examination of McNeil, over
the state’s objection, without limitations. See State v.
Esposito, supra, 235 Conn. 833 (defendant’s failure to
make sufficient offer of proof not attributable to trial
court where court placed no limitations on defendant’s
offer); cf. State v. Zoravali, 34 Conn. App. 428, 432–33,
641 A.2d 796 (trial court denied defendant’s request to
make offer), cert. denied, 230 Conn. 906, 644 A.2d 921
(1994). Defense counsel posed only two questions,
which the trial court interpreted to be directed at the
investigation at hand. Defense counsel said nothing to
disabuse the court of that impression. The court asked
defense counsel whether he had anything further before
it recalled the jury. Defense counsel indicated that he
did not.
During a subsequent jury recess, defense counsel was
permitted to press his argument further. The trial court
underscored that the limitations that it had placed on
defense counsel’s questions were based on the testi-
mony of the particular witness and that witness’ role
in the investigation at hand. The court expressly left
the door open to a broader inquiry when the officers
and detectives in charge of the case were called to
testify. Defense counsel never argued that officers other
than those in a supervisory capacity could competently
testify regarding routine practices and standard
operating procedures. Nor did he represent a good faith
basis to believe that such practices or procedures
existed and had been violated. The next day, when
defense counsel renewed his disagreement with the
limitations imposed on cross-examination the previous
day, the trial court did nothing to preclude or limit
that argument.
Ultimately, it is the defendant’s duty to put the trial
court on notice of his defense theory and to ensure that
evidence to support that theory is placed on the record
for appellate review. See State v. Brunetti, 279 Conn.
39, 63, 901 A.2d 1 (2006) (requiring defendant ‘‘to take
the necessary steps to sustain [his] burden of providing
an adequate record for appellate review’’ [internal quo-
tation marks omitted]), cert. denied, 549 U.S. 1212, 127
S. Ct. 1328, 167 L. Ed. 2d 85 (2007). We recognize that
the state repeatedly interrupted defense counsel’s ques-
tions and argument, which undoubtedly made defense
counsel’s job more difficult. Nonetheless, defense coun-
sel was permitted to place relevant facts on the record.
Stated simply, the record does not reflect that the
defendant expressed an intention to qualify any of the
testifying officers as experts and to inquire about stan-
dard operating procedures or routine practices that had
not been followed in the investigation at hand. Nor does
the record establish such facts. The defendant’s claim
that the trial court improperly precluded his inadequate
investigation defense strategy as to such a line of inquiry
therefore necessarily fails.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
render judgment affirming the judgment of the trial
court.
In this opinion the other justices concurred.
1
The state’s witness from the state forensic laboratory testified that he
had been unable to enhance the video to allow identification of the perpetra-
tor. The state maintains in its brief to this court that it had not asked any
witness to directly identify the defendant on the video because such an
identification would have been improper pursuant to State v. Finan, 275
Conn. 60, 67, 881 A.2d 187 (2005), in that the perpetrator’s identity was an
ultimate issue for the jury.
2
Lester had made this statement at the defendant’s first trial, which ended
in a mistrial. At the defendant’s second trial, Lester recanted his identification
of the defendant.
3
Defense counsel suggested that the fibers could have come from the
shooter’s shirt. Brosnahan explained that the fibers had not been tested
because there was nothing against which they could be compared.
4
We upheld the instruction in Collins because it did not direct the jury
not to consider the adequacy of the investigation. State v. Collins, supra,
299 Conn. 600–601.
5
The record similarly refutes the defendant’s claim that he was ‘‘repeatedly
precluded from asking officers about what steps they could have taken to
identify and contact potential witnesses.’’ (Emphasis added.) The defendant
was permitted to ask that question directly, or was permitted to elicit testi-
mony from which the jury reasonably would have inferred that such action
could have been undertaken. For example, the defendant was permitted to
ask McNeil whether he could have asked for identification from the people
he had canvassed, and to ask Brosnahan whether the fiber-like materials
that she collected could have been tested for color and composition. In the
few exceptions, it would have been a matter of common sense that the
officers could have done so. It was obvious, for example, that Johnson, who
testified that he had spoken to the bar’s security personnel but did not ask
them where patrons who wanted to smoke exited the bar, could have asked
a question about a smoking exit.
6
The imprecise phrasing of several questions further muddied the waters.
Defense counsel’s question to McNeil as to whether, in responding to a
shooting ‘‘one of the things you want to determine is where the shooting
occurred,’’ is unclear as to whether it refers to McNeil’s practice or police
practices generally. To the extent that ‘‘you’’ would presumably be interpre-
ted to inquire as to McNeil’s own practice, McNeil previously had testified
that he had been informed by persons outside the bar, as well as dispatch,
that the shooting occurred inside the bar, where the victim was found.
Thus, such a determination had been made, which later was proven wrong.
Moreover, the testimony established that each officer had undertaken differ-
ent duties, some unconnected to investigation. No testimony established
what McNeil’s assignment was at this scene, except that his duties did
not include canvassing witnesses (but he voluntarily did so), or at other
scenes generally.
7
The defendant similarly presses the argument that the trial court’s eviden-
tiary rulings effectively instructed the jury not to consider the adequacy of
the police investigation. The trial court, however, instructed the jury that
it should not be influenced by the court’s rulings on objections. It is well
established that in ‘‘the absence of a showing that the jury failed or declined
to follow the court’s instructions, we presume that it heeded them.’’ (Internal
quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 828, 882 A.2d
604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006).