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STATE OF CONNECTICUT v. JAQUWAN BURTON
(AC 41807)
DiPentima, C. J., and Prescott and Bright, Js.
Syllabus
Convicted, after a jury trial, of the crimes of murder, criminal possession of
a firearm and carrying a pistol without a permit, the defendant appealed,
claiming, inter alia, that the trial court improperly denied his motion to
suppress certain evidence seized by the police during a warrantless
search of the bedroom of his girlfriend, J, which was located in the
residence of her mother, N. The defendant’s conviction stemmed from
an incident in which he was driven by a friend to the victim’s residence
to obtain marijuana, and, during the transaction, the defendant fatally
shot the victim. Approximately two months later, the police went to N’s
residence to arrest the defendant pursuant to an outstanding arrest
warrant unrelated to the homicide of the victim. N answered the door
and permitted entry into the premises by the police, who proceeded
upstairs to a locked bedroom where they found the defendant, who was
taken into custody and brought outside to a patrol car. J, who also was
in the bedroom, was escorted downstairs by the police. N initially had
declined to give the police consent to search the premises, but, after
the defendant told her that a gun was in the bedroom and that she
should let the police get it, she signed a consent form allowing the
police to search the bedroom. J signed a similar consent form. The
police proceeded to search the bedroom and seized a two-tone chrome
and black nine millimeter handgun, an ammunition magazine and fifteen
rounds of nine millimeter ammunition from inside a dresser drawer.
Thereafter, it was determined that a nine millimeter shell casing that
was found at the crime scene was in substantial agreement with the
nine millimeter handgun seized from the dresser in the bedroom. Prior
to trial, the defendant filed a motion to suppress the evidence seized
from the bedroom, asserting that the warrantless search violated his
constitutional rights and, therefore, the fruit of that illegal search had
to be suppressed. Following an evidentiary hearing, the trial court denied
the motion. Held:
1. The trial court properly denied the defendant’s motion to suppress the
evidence seized by the police from J’s bedroom, as that court’s finding
that N and J voluntarily had consented to the search of the bedroom
by the police was not clearly erroneous: although the defendant claimed
that N and J had been coerced by the police to give their consent, in
making that claim the defendant relied on certain testimony of J, N and
himself that the police allegedly threatened to arrest J if she refused to
consent and that the police informed N and J that, if they did not consent,
the police would obtain a search warrant anyway, which the court
explicitly found to be not credible, and this court had to defer to the
trial court’s credibility assessments; moreover, the remaining evidence
presented supported the court’s voluntariness finding, as it showed that
although there were eight to ten armed police officers at the subject
premises early in the morning seeking to arrest the defendant, who was
a convicted felon, potentially a gang member, had been involved in
shootings and was suspected to have a weapon, there was no evidence
that the officers forcibly entered the residence of N, who had granted
them access, there was no evidence that two police officers who had
pointed their weapons at the defendant and J when entering the bedroom
used their weapons for any other purpose, including when they asked
for consent, and N and J both completed and signed a consent to search
form that contained disclaimers, including that the consent was given
voluntarily and without duress, threats or promises of any kind; further-
more, the fact that N initially declined to consent to a search did not
render the court’s voluntariness finding clearly erroneous, as it showed
that N possessed the ability and the will to make that decision despite
what the defendant claimed were coercive conditions, and it was a
strong indication of voluntariness that N and J decided to give the police
consent only after the defendant had told N that there was a handgun
in the bedroom and that she should let the police get it.
2. The defendant could not prevail on his claim that the trial court improperly
excluded evidence concerning the inability of two potential eyewit-
nesses to identify the defendant in a photographic array as the shooter,
which was based on his assertion that the court improperly determined
that § 8-5 (2) of the Connecticut Code of Evidence was the hearsay
exception applicable to such nonidentification evidence: because W,
the lead investigator in connection with the victim’s homicide, was not
present when the witnesses reviewed the photographic array and the
defendant sought to introduce the witnesses’ nonidentification of the
defendant in an assertive manner as evidence that they could not identify
the defendant as the shooter, the trial court correctly concluded that
W’s testimony was hearsay and was admissible only if it fell within a
hearsay exception, and that § 8-5 (2) of the Connecticut Code of Evidence
was not applicable to W’s testimony where, as here, the witnesses were
not available to be cross-examined, and, therefore, in light of the defen-
dant’s failure to identify any other hearsay exception that would have
applied to W’s testimony, there was no basis to conclude that the trial
court erred in excluding W’s testimony regarding the nonidentifications
by the witnesses; moreover, because certain photographic array docu-
ments that were offered into evidence by the defendant were offered
for the inference of the witnesses’ nonverbal assertive acts drawn from
the documents, the business records exception to the hearsay rule did
not apply to the inference that the witnesses could not identify the
defendant from the photographic array because that fact was not con-
tained in the documents themselves and was based on hearsay implied
from a combination of the documents and the witnesses’ assertive
actions or inactions, and in light of the defendant’s failure to identify
any other hearsay exception that would have allowed for the admission
of the photographic array documents, the court properly excluded them.
3. The trial court did not abuse its discretion in concluding that a video
recording of an interview between an eyewitness and the police was
not sufficiently reliable or trustworthy to support its admission under the
residual exception to the hearsay rule set forth in § 8-9 of the Connecticut
Code of Evidence: the reliability and trustworthiness of the interview
was undermined by the inability of the state to question the witness as
to her ability to perceive the shooter and the events on the evening of
the shooting and to cross-examine her as to the critical uncertainties
contained within the interview, and the evidence presented at trial failed
to corroborate in many material respects, and actually contradicted, the
witness’ version of the events; moreover, because the trial court properly
excluded the video recording of the interview, the defendant’s constitu-
tional claim necessarily failed.
Argued February 13—officially released August 13, 2019
Procedural History
Substitute information charging the defendant with
the crimes of murder, criminal possession of a firearm
and carrying a pistol without a permit, brought to the
Superior Court in the judicial district of New Haven,
where the court, Alander, J., denied the defendant’s
motion to suppress certain evidence; thereafter, the
matter was tried to the jury; verdict and judgment of
guilty, from which the defendant appealed. Affirmed.
Alice Osedach, assistant public defender, for the
appellant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and John P. Doyle, Jr., senior assistant state’s
attorney, for the appellee (state).
Opinion
BRIGHT, J. The defendant, Jaquwan Burton, appeals1
from the judgment of conviction, rendered after a jury
trial, of murder in violation of General Statutes §§ 53a-
54a (a) and 53a-8, criminal possession of a firearm in
violation of General Statutes § 53a-217 (a) (1), and car-
rying a pistol without a permit in violation of General
Statutes § 29-35 (a). On appeal, the defendant claims
that the trial court improperly (1) denied his motion to
suppress items of evidence seized from his girlfriend’s
bedroom located at her mother’s residence because
neither his girlfriend nor her mother provided voluntary
consent to search therein, (2) excluded evidence con-
cerning the inability of two eyewitnesses to identify
extrajudicially the defendant from a photographic array
as the shooter, and (3) excluded from evidence a video
recording of an interview between an eyewitness and
the police. We affirm the judgment of the trial court.
The relevant facts, as reasonably could have been
found by the jury, and procedural history, are as follows.
On the evening of February 10, 2014, the defendant
called his friend, John Helwig, and indicated that he
wanted a ride to buy some marijuana. Helwig, in his
gray or ‘‘greenish’’ car, picked up the defendant at a
house on Valley Street in New Haven, at which the
defendant’s girlfriend, Laneice Jackson, resided with
her mother, Patrice Nixon. Helwig then picked up two
other males, and the defendant instructed Helwig to
drive to an address in the proximity of 31 Kossuth Street
in New Haven and to park on a side street. When they
arrived, the defendant exited the vehicle alone and was
talking on his cell phone to the victim, Kyle Brown-
Edwards, about a marijuana transaction. The defendant
stated to the victim that he was ‘‘right around the cor-
ner,’’ and then the defendant walked away behind
the vehicle.
Meanwhile, the victim and his friends, Joseph Cordy
and Perry,2 were present on the second floor of the
victim’s residence at 31 Kossuth Street. After speaking
with the defendant on his cell phone, the victim, at
approximately 8:30 p.m., with marijuana in his posses-
sion, proceeded to go downstairs to the front entrance
of the residence. While standing in the doorway of the
front entrance, the victim was shot in the face by the
defendant. Cordy heard the gunshot, observed the vic-
tim at the bottom of the stairs, and then called the
police. At the same time, the victim’s cousin, Jeremy
Brown, and Jeremy’s girlfriend, Morgan Brown, were
somewhere outside the residence at 31 Kossuth Street.
Approximately five minutes after he left Helwig’s
vehicle, the defendant sprinted back to the vehicle with
a gun in his hand and, after entering the vehicle, pointed
the gun at Helwig and told him to drive. Helwig then
drove to his grandmother’s residence. There, the defen-
dant told Helwig that he had planned to rob the victim,
but, after the victim declined ‘‘to give it up’’ and gave
him ‘‘a weird look,’’ he shot the victim in the face.
The defendant also asked Helwig for some cleaner to
remove the blood from his sneakers.
At approximately 8:30 p.m., New Haven police were
dispatched to 31 Kossuth Street in response to a report
of someone being shot and, upon arrival, observed that
the victim had a gunshot wound to his head. The victim
was transported to a hospital, and he died as a result
of his injuries. Later that same night, New Haven police
investigated the crime scene and seized a single nine
millimeter shell casing from the floor at the bottom of
the staircase near the doorway inside 31 Kossuth Street.
New Haven police also seized the victim’s cell phone,
which was provided to them by Cordy. An examination
of the victim’s cell phone revealed one missed call and
two completed calls on February 10, 2014, between 8:21
p.m. and 8:31 p.m., from the defendant’s cell phone.
On the morning of April 3, 2014, several law enforce-
ment officers went to 461 Valley Street to arrest the
defendant pursuant to an outstanding arrest warrant
unrelated to the homicide of the victim. Nixon answered
the door and permitted State Trooper Chris McWilliams
and New Haven Police Sergeant Karl Jacobson and
Detective Martin Podsiad to enter the premises. McWil-
liams and Podsiad proceeded upstairs to a locked bed-
room, and, after they had knocked, the defendant
opened the door. The defendant was taken into custody
and brought outside to a patrol car. Jackson, who also
was in the bedroom, was escorted downstairs. The offi-
cers did not have a search warrant, but they received
written consent to search the bedroom from both Jack-
son and Nixon. The officers searched the bedroom and
seized, among other things, a two-tone chrome and
black nine millimeter handgun, an ammunition maga-
zine, and fifteen rounds of nine millimeter ammunition
from inside a dresser drawer.
Further investigation revealed that the nine millime-
ter shell casing that was found at the crime scene was
in ‘‘substantial agreement’’ with the nine millimeter
handgun seized from the dresser in the bedroom. Fur-
thermore, the defendant’s friends had seen him always
carrying a particular nine millimeter gun that matched
the two-tone appearance of the gun found in the dresser.
Also as part of their investigation, law enforcement
seized the defendant’s cell phone. Thereon, they discov-
ered a video of the defendant reacting to a television
news report of the victim’s murder, and pictures of
himself, prior to the shooting, holding a two-tone hand-
gun matching the one found in the dresser. The defen-
dant thereafter was charged with murder, criminal pos-
session of a firearm, and carrying a pistol without a
permit. He pleaded not guilty and elected a jury trial.
On March 31, 2016, before trial, the defendant filed
a motion to suppress the evidence seized from the bed-
room at 461 Valley Street, specifically including the nine
millimeter handgun, tests performed thereon, and any
testimony related thereto. The defendant maintained
that the warrantless search of the bedroom at 461 Valley
Street violated his rights under the fourth amendment
to the constitution of the United States and article first,
§ 7, of the constitution of Connecticut and, thus, he
argued that the fruit of those searches must be sup-
pressed. In contrast, the state argued that the searches
and seizures did not violate the defendant’s constitu-
tional rights because both Jackson and Nixon provided
voluntary consent to search the bedroom.
On January 30, 2017, after a two day evidentiary hear-
ing, the court issued a memorandum of decision in
which it denied the defendant’s motion to suppress.
Therein, the court found that the credible evidence
established that the state proved that the warrantless
search of the bedroom at 461 Valley Street and seizure
of the handgun therein did not violate the defendant’s
constitutional rights because consent to search was
freely and voluntarily given by Jackson and Nixon, who
were the individuals with the requisite authority to
do so.
Thereafter, the defendant’s case proceeded to a jury
trial. During the state’s case-in-chief, the defendant
sought to introduce testimony and documentary evi-
dence to establish that Morgan Brown and Jeremy
Brown (collectively, the Browns), who were potential
eyewitnesses to the murder and not available to testify
at trial, each previously had been unable to identify the
defendant in a photographic array. The defendant first
asked Detective Michael Wuchek, who was the lead
investigator in connection with the homicide of the
victim, whether the Browns were able to identify the
defendant in a photographic array. The state objected,
and the court excused the jury. The court heard argu-
ment and sustained the state’s objection on the ground
that Wuchek’s testimony as to whether the Browns were
able to identify the defendant was hearsay and, because
they were unavailable to testify, the pretrial identifica-
tion exception to the hearsay rule; see Conn. Code Evid.
§ 8-5 (2);3 did not apply to his testimony. Second, still
outside the presence of the jury, defense counsel made
an offer of proof as to the photographic array docu-
ments shown to the Browns. Those documents included
a single sheet containing eight photographs of individu-
als, including the defendant, and two instruction sheets,
one purportedly signed by Morgan Brown and one pur-
portedly signed by Jeremy Brown. Defense counsel
argued that these documents were admissible pursuant
to the business records exception to the hearsay rule.
See Conn. Code Evid. § 8-4 (a).4 The state objected, and
the court sustained the objection on the ground that
the inference drawn from the documents that the
Browns were unable to identify the defendant consti-
tuted hearsay that was not excepted from the hearsay
rule pursuant to § 8-5 (2) of the Connecticut Code of
Evidence.
Several days later, in the course of the state’s case-
in-chief, the defendant filed a motion to admit into evi-
dence the video recording of an interview between Mor-
gan Brown and the police on the night of the victim’s
murder because he believed that Morgan Brown’s
description of the events that night contradicted the
state’s evidence in certain important respects. In his
memorandum of law in support of his motion to admit,
the defendant maintained that the video recording was
admissible pursuant to the residual exception to the
hearsay rule. See Conn. Code Evid. § 8-9.5 The next day,
the court, after it heard argument from both parties,
issued an oral decision in which, after expressing doubt
as to whether the defendant had established that Mor-
gan Brown was unavailable, it denied the defendant’s
motion on the ground that the interview was not trust-
worthy and reliable because the state would be unable
to cross-examine Morgan Brown about the inconsisten-
cies therein.
The jury subsequently found the defendant guilty of
all charges, and the court, after rendering judgment in
accordance with the verdict, sentenced the defendant
to a total effective sentence of fifty-five years incarcera-
tion and imposed a fine of $5000. This appeal followed.
Additional facts will be set forth as necessary.
I
The defendant first claims that the court improperly
denied his motion to suppress several items of evidence
seized from Jackson’s bedroom located at Nixon’s resi-
dence because neither Jackson nor Nixon provided vol-
untary consent to search therein. Specifically, he con-
tends that the court erroneously found that both
Jackson and Nixon had provided free and voluntary
consent to search the bedroom because the evidence
presented at the motion to suppress hearing established
that they were coerced by the law enforcement officers
into providing consent. The defendant argues that the
warrantless search of the bedroom by the law enforce-
ment officers violated his constitutional rights, and,
therefore, the items of evidence seized from this search
should have been suppressed. We disagree.
In its memorandum of decision denying the defen-
dant’s motion to suppress, the court found the following
additional facts. ‘‘Law enforcement officers . . . were
seeking to serve two arrest warrants on the defendant,
[who] . . . was a convicted felon and a suspected gang
member. The officers also possessed information from
a confidential informant that the defendant was in pos-
session of a weapon, [had previously been involved in
shootings], and was residing with his girlfriend . . .
[Jackson] . . . [i]n one of two houses in the Valley
Street area of New Haven. On April [3], 2014, eight to
ten law enforcement officers went to 461 Valley Street
in New Haven to determine whether the defendant was
at that address and to serve the arrest warrants. They
arrived at approximately 6 a.m. Three of the officers
approached the front door of the dwelling, while the
remaining officers took up positions outside the perime-
ter of the house. The three officers were armed. Karl
Jacobson, a sergeant with the New Haven Police
Department, was armed with a handgun, while . . .
Podsiad . . . and State Trooper McWilliams were
armed with assault rifles. Jacobson knocked on the
front door, which was eventually answered by . . .
Nixon, who was the lessee of the home. Nixon opened
the door and let the three officers inside the house.
Jacobson asked Nixon whether the defendant was there
to which Nixon replied that she did not think so. Jacob-
son then asked Nixon if they could look to see if the
defendant was present and Nixon responded, ‘go
ahead.’ Jacobson stayed with Nixon as Podsiad and
McWilliams searched the premises for the defendant.
The two officers proceeded to an upstairs bedroom and
knocked on the door, which was locked. The defendant
opened the door and was immediately arrested and
handcuffed. Also inside the bedroom was . . . Jack-
son . . . .
‘‘The defendant was eventually brought outside and
placed inside a patrol car. Nixon initially declined to
consent to a search of the premises. At some point,
Jacobson was informed by a patrol officer that the
defendant wanted to speak with him. Jacobson went
to the patrol car where the defendant was in custody.
The defendant volunteered that the gun they were look-
ing for was in the bedroom and he did not want anyone
else to get in trouble for it. Jacobson informed the
defendant that Nixon would not consent to a search.
Upon hearing this news, the defendant asked to speak
with Nixon. The defendant’s request was accommo-
dated, whereupon the defendant told Nixon that the
gun was in the bedroom and to ‘just let them get it.’
Nixon then signed a consent form allowing the officers
to search the bedroom. Jackson signed a similar con-
sent form. Each form stated that the signer ha[d] been
informed of her constitutional right not to have a search
made without a search warrant and her right to refuse
to consent to a search. The form also stated that permis-
sion to search [was] being given ‘voluntarily and without
duress, threats, or promises of any kind.’ After obtaining
the written consent to search from Nixon and Jackson,
Podsiad searched the bedroom and seized the subject
handgun located in a dresser drawer.’’
The court also specifically credited the testimony
of the law enforcement officers and discredited the
conflicting testimony of Jackson, Nixon, and the defen-
dant. The court stated that ‘‘Nixon and Jackson disputed
the above facts in important respects. Jackson testified
that she returned to the bedroom prior to her signing
the consent form to obtain clothes for the defendant
and that it was apparent from the disarray of the room
and the open dresser drawer that it had already been
searched. [The court] find[s] this testimony not to be
credible. It is contradicted by the testimony of Podsiad
that no civilian was allowed back into the bedroom after
it was initially vacated by Jackson and the defendant,
as well as the testimony of Nixon . . . that Jackson
did not go back upstairs.
‘‘Nixon testified that she was coerced into consenting
to a search of the bedroom because she was told by a
police officer that Jackson would be arrested if the
police were required to obtain a search warrant and a
handgun was found. Nixon testified that, since [Jack-
son] was pregnant and she was concerned that she
might be arrested, she was forced to consent to the
search. Jackson and the defendant offered testimony,
which supported Nixon’s version of events. [The court]
do[es] not find any of this testimony to be credible.
Rather, [the court] credit[s] the testimony of Jacobson,
the lead law enforcement officer during the search and
the person who witnessed the signing of the two con-
sent forms, that neither Nixon nor Jackson [were]
coerced or threatened in any way.’’
We turn next to the well established law and standard
of review that governs the defendant’s claim. Both the
fourth amendment to the United States constitution
and article first, § 7, of the constitution of Connecticut
protect individuals from unreasonable searches and sei-
zures. ‘‘Under both the fourth amendment to the federal
constitution and article first, § 7, of the state constitu-
tion, a warrantless search of a home is presumptively
unreasonable.’’ (Internal quotation marks omitted.)
State v. Brunetti, 279 Conn. 39, 69, 901 A.2d 1 (2006),
cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed.
2d 85 (2007).
‘‘A warrantless search is not unreasonable under
either the fourth amendment to the constitution of the
United States or article first, § 7, of the constitution of
Connecticut if a person with authority to do so has
freely consented to the search. . . . The state bears the
burden of proving [by a preponderance of the evidence]
that the consent was free and voluntary. . . . The state
must affirmatively establish that the consent was volun-
tary; mere acquiescence to a claim of lawful authority
is not enough to meet the state’s burden. . . . The ques-
tion whether consent to a search has in fact been freely
and voluntarily given, or was the product of coercion,
express or implied . . . is a question of fact to be deter-
mined from the totality of all the circumstances. . . .
We may reverse [the trial court’s factual findings] on
appeal only if they are clearly erroneous. . . . Thus,
[w]hether there was valid consent to a search is a factual
question that will not be lightly overturned on appeal.’’
(Citation omitted; footnote omitted; internal quotation
marks omitted.) State v. Jenkins, 298 Conn. 209, 249–50,
3 A.3d 806 (2010); see State v. Azukas, 278 Conn. 267,
277–78, 897 A.2d 554 (2006) (delineating principles of
valid third-party consent of residence).
‘‘Our standard of review of a trial court’s findings and
conclusions in connection with a motion to suppress
is well defined. A finding of fact will not be disturbed
unless it is clearly erroneous in view of the evidence
and pleadings in the whole record . . . . We undertake
a more probing factual review when a constitutional
question hangs in the balance.’’ (Internal quotation
marks omitted.) State v. Davis, 331 Conn 239, 246, 203
A.3d 1233 (2019).
‘‘Notwithstanding our responsibility to examine the
record scrupulously, it is well established that we may
not substitute our judgment for that of the trial court
when it comes to evaluating the credibility of a witness.
. . . It is the exclusive province of the trier of fact to
weigh conflicting testimony and make determinations
of credibility, crediting some, all or none of any given
witness’ testimony. . . . Questions of whether to
believe or to disbelieve a competent witness are beyond
our review. As a reviewing court, we may not retry the
case or pass on the credibility of witnesses. . . . We
must defer to the trier of fact’s assessment of the credi-
bility of the witnesses that is made on the basis of its
firsthand observation of their conduct, demeanor and
attitude.’’ (Internal quotation marks omitted.) State v.
Castillo, 329 Conn. 311, 322, 186 A.3d 672 (2018).
On appeal, it is undisputed that the law enforcement
officers did not have a search warrant and that Jackson
and Nixon had the authority to give and actually pro-
vided consent to search the bedroom; the issue, there-
fore, is whether their consent was voluntary. The defen-
dant argues that the consent was not voluntary because,
under the totality of the circumstances, Jackson and
Nixon had been coerced to give their consent.6 In sup-
port of his argument, the defendant relies on the testi-
mony of Jackson, Nixon, and himself that the officers
allegedly threatened to arrest Jackson if she refused to
consent and that the officers informed them that, if
they did not consent, the officers would obtain a search
warrant anyway.7 The defendant also relies on the evi-
dence presented that Nixon initially refused to consent,
there was a large number of armed officers present
within the home at an early hour in the morning, and
Jacobson told Nixon that it was okay if she did not
consent because they were applying for a warrant to
search the house.
The initial problem with the defendant’s claim is that
he relies, in part, on the testimony of Jackson, Nixon,
and himself, which the court explicitly found to be not
credible. In light of the principle that we must defer
to the credibility assessments of the trial court, the
testimony of Jackson, Nixon, and the defendant as to
the allegedly coercive statements made by the police
are removed from our determination as to whether the
court’s voluntariness finding was clearly erroneous. See
id.; see also State v. Martinez, 49 Conn. App. 738, 745–
46, 718 A.2d 22 (declining to second-guess trial court’s
assessment that discredited individual’s testimony that
she did not consent to search), cert. denied, 247 Conn.
934, 719 A.2d 1175 (1998).
On the basis of the remaining evidence presented,
we conclude that the court’s voluntariness finding was
not clearly erroneous. Although there were eight to ten
armed officers at the premises early in the morning,
this was due to the fact that they were seeking to arrest
the defendant, who was a convicted felon, potentially
a gang member, had been involved in shootings, and
was suspected to have a weapon. See State v. Gray-
Brown, 188 Conn. App. 446, 458–59, 204 A.3d 1161
(rejecting argument that ‘‘consent was coerced because
the search occurred in the early morning and twelve
police officers were present at the house’’ where police
believed that suspect was armed and responsible for
homicide), cert. denied, 331 Conn. 922, 205 A.3d 568
(2019). There was no evidence that the officers forcibly
entered the home; rather, three of the officers were
granted access to the premises by Nixon, and she will-
ingly answered their question as to whether she knew
if the defendant was present. See State v. Reynolds,
264 Conn. 1, 45, 836 A.2d 224 (2003) (determining that
finding of voluntary consent to search not clearly erro-
neous where officers requested permission to enter
premises and did not use loud or threatening language
or point their guns at anyone), cert. denied, 541 U.S.
908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). Although
two officers pointed their weapons at the defendant
and Jackson when entering the bedroom, there was no
evidence that the police used their weapons for any
other purpose, including when they asked for consent.
See State v. Jenkins, supra, 298 Conn. 254 (presence
of armed officers, although factor to be considered,
‘‘does not render the atmosphere coercive’’). Further,
Jackson and Nixon each completed and signed a con-
sent to search form that contained disclaimers, includ-
ing that the consent was given ‘‘voluntarily and without
duress, threats, or promises of any kind.’’
Moreover, the fact that Nixon initially declined to
consent to a search does not render the court’s voluntar-
iness finding clearly erroneous; rather, it shows that
she possessed the ability and the will to make that
decision despite what the defendant claims were coer-
cive conditions. See State v. Brunetti, supra, 279 Conn.
56 (‘‘because refusal to sign a consent to search form
is one of several factors to be considered in determining
the validity of consent, such refusal does not vitiate
consent otherwise found to be valid in light of all of
the circumstances’’). Indeed, it is a strong indication
of voluntariness that Jackson and Nixon decided to
provide the officers consent only after the defendant
told Nixon that the gun was in the bedroom and that
she should ‘‘just let them get it.’’
Finally, Jacobson testified that after Nixon initially
refused consent to search, he sent officers back to the
police station to start ‘‘drafting up a [search] warrant.’’
He did not testify, however, that he told Nixon or Jack-
son that he would get a warrant if they did not consent.
Furthermore, he testified that after the defendant told
him there was a gun in the bedroom, Jacobson told the
defendant that Nixon and Jackson were not consenting
to a search so the police were going to apply for a
search warrant. Jacobson never testified that any such
statement was made to Nixon or Jackson, or that they
were aware of Jacobson’s conversation with the defen-
dant when they consented to the search.
We conclude that the evidence presented supported
the court’s finding that Jackson and Nixon voluntarily
consented to the officers’ request for permission to
search the bedroom, and, therefore, the court properly
denied the defendant’s motion to suppress the evidence
seized by the police from the bedroom.8
II
The defendant next claims that the court improperly
excluded evidence concerning the inability of the
Browns to identify extrajudicially the defendant in a
photographic array as the shooter. The defendant
argues that the court improperly determined that § 8-
5 (2) of the Connecticut Code of Evidence was the
hearsay exception applicable to the evidence of non-
identification in the form of the testimony of Wuchek
and the photographic array documents. We conclude
that the court did not improperly exclude the evidence
of nonidentification.
The following additional facts are relevant to our
resolution of the defendant’s claim. Wuchek testified as
part of the state’s case-in-chief. On cross-examination,
Wuchek testified that the Browns, as potential eyewit-
nesses, were interviewed by the police on the night of
the murder. He testified that, two months after the
murder, the Browns were recalled to the police station
where they each separately completed a review of a
photographic array. Wuchek averred that he did not
administer either array. Consequently, he was not in a
position to testify regarding how the Browns responded
to the photographic array, and, thus, he could not con-
firm whether they affirmatively said that they did not
see the shooter, were uncertain if the shooter was in
the array, or were silent after reviewing the array. Nev-
ertheless, he outlined that it was the then existing prac-
tice of the police to present to the witness eight photo-
graphs of people similar in appearance, including a
picture of the suspect, one at a time. The witness then
would state whether any of the pictures represented
the individual that they saw commit the crime. After
Wuchek answered that the Browns each had completed
a review of a photographic array, which included a
picture of the defendant, defense counsel then asked
whether the Browns were able to identify the defendant
from the photographic array. The state objected, and
the court excused the jury.
At the outset, the court recognized that the question
called for hearsay, and it stated that the relevant hearsay
exception was § 8-5 (2) of the Connecticut Code of
Evidence, which excepts pretrial identification evi-
dence from the hearsay rule when the witness is avail-
able to testify at trial. The court stated that, on the
basis of a conversation with counsel in chambers, it
understood that the Browns both were unavailable to
testify. The state then represented that it had confirmed
that, to the best of its knowledge, Morgan Brown was
on active duty in the United States Air Force in Texas,
and Jeremy Brown also was in the state of Texas, but
not assigned to the Air Force. Defense counsel con-
firmed that he had not been able to verify the Browns’
addresses or to contact them. Accordingly, the court
determined that, because the Browns would not be
available at trial for cross-examination, Wuchek’s testi-
mony as to whether they previously had been able to
identify the defendant in a photographic array was not
excepted from the hearsay rule pursuant to § 8-5 (2) of
the Connecticut Code of Evidence.
Next, defense counsel made an offer of proof as to
a pair of two page documents that constituted the one
page New Haven Police Department ‘‘witness instruc-
tions—identification procedures’’ and a one page com-
pilation of the photographic array. The two sheets of
instructions were completed and individually signed
by the Browns and New Haven Police Sergeant David
Zannelli. The two photographic arrays contained eight
pictures of individuals with comparable appearances,
including the defendant, as well as their corresponding
names. Neither photographic array contained any mark-
ings. In response to several questions posed by defense
counsel, Wuchek testified that he recognized the docu-
ments, but that the photographs depicted in the arrays
would have been presented separately to the Browns
and that the Browns would not have been shown the
names of the individuals. He testified that the police
maintain the photographic array records as part of their
investigation and case file. He also testified that if a
witness were to identify an individual in the array, they
would mark that individual’s picture, and, if the witness
were unable to identify an individual in the array, no
marks would be made. Defense counsel then asked that
the documents be admitted as business records for the
purpose of establishing that the Browns could not iden-
tify the defendant. The state objected on the ground
of relevancy.
The court reasoned that these documents, which did
not indicate whether the Browns were able to identify
any of the individuals, were relevant only if the Browns’
identification or lack of identification also was admissi-
ble as evidence. Defense counsel argued that the docu-
ments were relevant because the jury could draw a
reasonable inference therefrom that there was no posi-
tive identification. The court then determined that, if
the documents were used for the purpose of inferring
the lack of a positive identification, then that evidence
was not admissible pursuant to § 8-5 (2) of the Connecti-
cut Code of Evidence because the Browns were unavail-
able to be cross-examined at trial.
We turn next to the well established law and standard
of review that governs the defendant’s claim. ‘‘To the
extent [that] a trial court’s admission of evidence is
based on an interpretation of the Code of Evidence,
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 questions demanding plenary
review.’’ (Internal quotation marks omitted.) State v.
Taupier, 330 Conn. 149, 181, 193 A.3d 1 (2018), cert.
denied, U.S. , 139 S. Ct. 1188, 203 L. Ed. 2d
202 (2019).
‘‘It is well settled that . . . [a]n out-of-court state-
ment offered to prove the truth of the matter asserted
is hearsay and is generally inadmissible unless an excep-
tion to the general rule applies.’’ (Internal quotation
marks omitted.) State v. Carrion, 313 Conn. 823, 837,
100 A.3d 361 (2014). Evidence offered for the purpose
of establishing whether the declarant extrajudicially
identified a defendant is hearsay. See State v. Outlaw,
216 Conn. 492, 496–98, 582 A.2d 751 (1990). This identifi-
cation evidence may be excepted from the hearsay rule
if the requirements of § 8-5 (2) of the Connecticut Code
of Evidence are met. That section provides in relevant
part: ‘‘The following are not excluded by the hearsay
rule, provided the declarant is available for cross-exami-
nation at trial . . . (2) The identification of a person
made by a declarant prior to trial where the identifica-
tion is reliable.’’ Conn. Code Evid. § 8-5 (2).
Furthermore, a hearsay document may be excepted
from the hearsay rule pursuant to § 8-4 (a) of the Con-
necticut Code of Evidence, which provides: ‘‘Any writ-
ing or record, whether in the form of an entry in a book
or otherwise, made as a memorandum or record of any
act, transaction, occurrence or event, shall be admissi-
ble as evidence of the act, transaction, occurrence or
event, if the trial judge finds that it was made in the
regular course of any business, and that it was the
regular course of the business to make the writing or
record at the time of the act, transaction, occurrence
or event or within a reasonable time thereafter.’’ See
also General Statutes § 52-180 (governing admissibility
of business entries); Margolin v. Kleban & Samor, P.C.,
275 Conn. 765, 779–80, 882 A.2d 653 (2005) (outlining
three requisite conditions for admissibility of busi-
ness record).
In the present case, the defendant twice sought to
introduce the fact that the Browns, although they were
in close proximity to 31 Kossuth Street at the time the
victim was shot, were unable to identify the defendant,
from a photographic array, as the shooter. He sought
to introduce this fact through the testimony of Wuchek
as well as through the photographic array documents.
The defendant argues that the court improperly identi-
fied § 8-5 (2) of the Connecticut Code of Evidence as
applicable to his offers of proof.
With respect to the testimony of Wuchek, the defen-
dant argues that the pretrial identification hearsay
exception does not apply because his answer would
have revealed that the Browns failed to identify the
defendant, not that they positively identified him. He
argues that the language of § 8-5 (2) of the Connecticut
Code of Evidence was intended to govern only positive
identifications, as opposed to a failure to make an iden-
tification. Because the defendant has identified no other
hearsay exception that would have made Wuchek’s tes-
timony admissible, the defendant’s argument necessar-
ily relies on an assumption that testimony from Wuchek
that the Browns did not identify the defendant when
shown the photographic array would not have been
hearsay at all. We disagree.
Hearsay includes not only verbal and written state-
ments, but also ‘‘nonverbal conduct of a person, if it is
intended by the person as an assertion.’’ Conn. Code
Evid. § 8-1 (1) (B); see State v. Burney, 288 Conn. 548,
561, 954 A.2d 793 (2008). For example, an out-of-court
nod or shake of the head in response to a question is
as much an assertion subject to the hearsay rules as if
the person had answered the question verbally or in
writing. See State v. King, 249 Conn. 645, 670–71, 735
A.2d 267 (1999). Similarly, testimony that a person was
silent in response to a question or did not mention a
particular fact may constitute hearsay when offered to
prove the existence or nonexistence of the fact. Id.,
672; see also State v. Rosado, 134 Conn. App. 505, 519,
39 A.3d 1156, cert. denied, 305 Conn. 905, 44 A.3d
181 (2012).
For example, in King, our Supreme Court addressed
the issue of whether testimony as to the nonverbal
conduct of a declarant was assertive and, thus, consti-
tuted hearsay. State v. King, supra, 249 Conn. 670–72.
At the defendant’s murder trial, defense counsel sought
to introduce the testimony of a police officer who had
shown a photographic array, which included a picture
of the defendant, to the victim’s younger sister, who
was present at the home where the murder occurred.
Id., 652–53, 670, 673. Defense counsel expected the
police officer to testify that the victim’s sister ‘‘did noth-
ing’’ when presented with the picture of the defendant.
Id., 670 n.31. The state objected on the ground that this
testimony was inadmissible hearsay because defense
counsel sought to treat the silence of the victim’s sister
as an assertion that she could not identify the defendant.
Id., 671. The trial court sustained the state’s objection.
Id. On appeal, our Supreme Court held that the trial
court properly excluded the officer’s testimony because
the silence of the victim’s sister was offered by defense
counsel to establish only that she failed to identify the
defendant from the photographic array. Id., 672. As
such, the declarant’s silence was ‘‘a nonverbal assertion
or statement’’ that constituted ‘‘inadmissible hear-
say.’’ Id.
The same is true in the present case. The defendant
sought to have Wuchek testify that the Browns did not
identify the defendant’s picture when they reviewed the
photographic array. As in King, the defendant sought
to introduce the Browns’ nonidentification of the defen-
dant in an assertive manner, as evidence that the
Browns could not identify the defendant as the shooter.
Because Wuchek was not present when the Browns
reviewed the photographic array, it is unclear exactly
how they responded, if at all, to the defendant’s photo-
graph. Nevertheless, it does not matter. Whether the
Browns affirmatively excluded the defendant’s picture,
shook their heads when asked if they saw the shooter,
or were silent, makes no difference when their noniden-
tification is offered in an assertive manner. Clearly,
testimony as to the Browns’ verbal responses or nonver-
bal conduct, if offered through Wuchek, would consti-
tute hearsay because the defendant would be offering
the Browns’ conduct for the truth of the matter asserted.
We see no reason why the same rule, as outlined in
King, should not apply to Wuchek’s testimony that the
Browns did not identify the defendant from the photo-
graphic array. Consequently, the court was correct in
concluding that Wuchek’s testimony regarding the
Browns’ nonidentification of the defendant was hearsay
and was only admissible if it fell within a hearsay excep-
tion. The court also correctly concluded that § 8-5 (2)
of the Connecticut Code of Evidence was not applicable
to Wuchek’s testimony because the Browns were not
available to be cross-examined.9 Because the defendant
has not identified any other hearsay exception that
would have applied to the proffered testimony, there
is no basis to conclude that the court in any way erred
in excluding Wuchek’s testimony regarding the non-
identifications by the Browns.
With respect to the photographic array documents,
the defendant argues that the court improperly deter-
mined that the pretrial identification exception, as
opposed to the business records exception, was the
applicable hearsay exception. The defendant offered
these photographic array documents for the relevant
purpose of establishing an inference that the Browns
were unable to identify the defendant, from the photo-
graphic array, as the shooter.10 When offered for that
purpose, the inference that the Browns were unable to
identify the defendant constituted implied hearsay in
the form of a nonverbal assertion.
This relevant inference constituted implied hearsay
because, although the offered documents themselves
do not establish whether the Browns were able to iden-
tify the defendant, this fact can be inferred from
Wuchek’s foundational testimony in conjunction with
the lack of markings on the documents. See State v.
Jones, 44 Conn. App. 476, 486, 691 A.2d 14 (implied
hearsay occurs when ‘‘although a witness did not repeat
the statements of [the declarant], his or her testimony
presented to the jury, by implication, [revealed] the
substance of the [the declarant’s] statements’’), cert.
denied, 241 Conn. 901, 693 A.2d 304 (1997); In re Jose
M., 30 Conn. App. 381, 386, 620 A.2d 804 (‘‘The conversa-
tion was not repeated verbatim by [the coconspirator]
but, nevertheless, his testimony expressly conveyed the
substance of the conversation. As such, [the coconspira-
tor’s] testimony, by implication, presented out-of-court
statements that if offered as assertions or to prove the
facts asserted would run afoul of the hearsay rule.’’),
cert. denied, 225 Conn. 921, 625 A.2d 821 (1993); see
also Dutton v. Evans, 400 U.S. 74, 88, 91 S. Ct. 210, 27
L. Ed. 2d 213 (1970) (recognizing that witness’ statement
included implicit identification of accused). Accord-
ingly, we must determine whether this inference of non-
verbal conduct was admissible under the business
records exception as claimed by the defendant.
The business records exception, however, applies, at
most, to the contents of the documents themselves and
not to the implied hearsay drawn therefrom. ‘‘[O]nce
[the criteria of business records exception] have been
met by the party seeking to introduce the record . . .
it does not necessarily follow that the record itself is
generally admissible, nor does it mean that everything
in it is required to be admitted into evidence. . . . For
example, the information contained in the record must
be relevant to the issues being tried. . . . In addition,
the information contained in the [record] must be based
on the entrant’s own observation or on information of
others whose business duty it is to transmit it to the
entrant. . . . If the information does not have such a
basis, it adds another level of hearsay to the [record]
which necessitates a separate exception to the hearsay
rule in order to justify its admission.’’ (Emphasis
added; internal quotation marks omitted.) State v.
George J., 280 Conn. 551, 593–94, 910 A.2d 931 (2006),
cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed.
2d 573 (2007); see Pagano v. Ippoliti, 245 Conn. 640,
651, 716 A.2d 848 (1998) (meeting notes admissible as
business record but their description of statements
made by meeting participant constituted inadmissible
hearsay).
In the present case, the photographic array docu-
ments were offered not for the information contained
therein, but for the inference of the Browns’ nonverbal
assertive acts that is drawn from the documents. Thus,
the business records exception does not apply to the
inference that the Browns could not identify the defen-
dant from the photographic array because that fact is
not contained in the documents themselves, but is
based on hearsay implied from a combination of the
documents and the Browns’ assertive actions or inac-
tions. Accordingly, in light of our conclusion that the
business records exception does not apply to the
implied hearsay, the defendant was required to identify
an applicable hearsay exception that would allow for
its admission. Because the defendant has failed to iden-
tify any applicable exception, we conclude that the
court properly excluded the evidence concerning the
inability of the Browns to identify extrajudicially the
defendant in a photographic array.
The defendant also argues that, notwithstanding its
evidentiary admissibility, the evidence of nonidentifica-
tion was ‘‘constitutionally admissible pursuant to the
defendant’s rights to due process and to present a
defense.’’ We disagree. Our conclusion that the court
properly applied the rules of evidence to exclude this
evidence disposes of the defendant’s constitutional
claim. See State v. Bennett, 324 Conn. 744, 764, 155
A.3d 188 (2017) (‘‘[i]f . . . we conclude that the trial
court properly excluded the proffered evidence, then
the defendant’s constitutional claims necessarily fail’’
[internal quotation marks omitted]).
III
The defendant finally claims that the court improp-
erly excluded from evidence a video recording of an
interview between Morgan Brown and the police. The
defendant argues, contrary to the court’s ruling, that
the video recording of the interview was admissible
pursuant to the residual exception to the hearsay rule;
see Conn. Code Evid. § 8-9; because there was a reason-
able necessity for its admission and it was trustworthy
and reliable. We disagree.
The following additional facts are relevant to our
resolution of the defendant’s claim. During the state’s
case-in-chief, the defendant filed a motion to admit the
entire video recording of an interview between Morgan
Brown and the police (interview), and a memorandum
of law in support thereof. The interview took place at
the New Haven Police Department on the night of the
murder of the victim. In the course of the interview,
which later was transcribed, Morgan Brown provided
the following description of events in response to a
series of questions posed by New Haven police detec-
tives. She and Jeremy Brown were sitting in a parked
vehicle in front of 31 Kossuth Street when they observed
a vehicle driven by a young female with a light complex-
ion park on Ann Street. She first answered that the
female driver was white, but then immediately cor-
rected her answer to say that she was black. She
described the female as wearing her hair down, not up.
She further stated that she did not know what kind of
car the female was driving because she ‘‘was not really
paying attention to it,’’ and there were ‘‘so many’’ cars
because it was a busy street. Nonetheless, she gave a
description of the car as a newer, plain, charcoal grey,
four door car with dark tinted windows.
She stated that, approximately two to five minutes
later, ‘‘a boy comes out, well, I didn’t see him come out
[of] the car, but you put two and two together. He
walk[ed] down the street smoking a cigarette’’ and
approached the entrance to 31 Kossuth Street. On the
way to the entrance, the boy walked in front of the
Browns’ car and looked at them. She stated that ‘‘he
looked young, but [she] did [not] really see his face,’’
but she described the boy as black, about five feet, nine
inches tall, skinny, wearing a dark hooded sweatshirt,
with the hood up, jeans, and black shoes. Several ques-
tions later, she described the boy as having light skin.
After the victim opened the door, the boy entered
the residence and, while the door stayed open, she ‘‘just
heard the shot. He ran out [of] the house, ran across
the street, hopped in the car, and they pulled off.’’ The
boy had passed them again on the way back to his car,
and she did not see him with a gun. Morgan Brown
then entered 31 Kossuth Street and saw the victim lying
on the ground bleeding from his head just inside the
entrance.
The defendant sought to admit the entire video
recording of the interview pursuant to the residual
exception to the hearsay rule. See Conn. Code Evid.
§ 8-9. At oral argument on the motion, held outside the
presence of the jury, the defendant maintained that the
interview was reasonably necessary to his case because
Morgan Brown was unavailable for trial, and that the
interview was reliable on the basis of the circum-
stances. The state opposed the admission of the inter-
view. The state disputed that admission of the video
recording of the interview was necessary because
defense counsel had not undertaken all efforts to pro-
cure Morgan Brown for trial. See General Statutes § 54-
82i (c) (delineating procedures to summon out-of-state
material witness). The state also argued that it would
not have an opportunity to cross-examine Morgan
Brown regarding the inconsistent statements made in
the interview and that the interview is not categorically
reliable because it was given to the police and recorded
on video.
The court then orally denied the defendant’s motion
to admit the video recording of the interview. The court
initially expressed its concern whether the defendant
had undertaken sufficient efforts to procure Morgan
Brown’s attendance by way of an interstate subpoena,
but it rested its decision on the sole ground that the
interview failed to meet the trustworthy and reliable
requirement. In particular, the court recognized that
the interview occurred immediately after the shooting,
was given to the police, and was video recorded, but
it determined that those circumstances, alone, did not
make the interview trustworthy and reliable. The court
reasoned that the inability of the state to cross-examine
Morgan Brown as to the ‘‘clear ambiguities in her state-
ment,’’ and her ability to perceive the shooter, were fatal
to the admission of the video recording of the interview.
We turn next to the law and standard of review that
governs the defendant’s claim. ‘‘[I]n order to establish
reversible error on an evidentiary impropriety, the
defendant must prove both an abuse of discretion and
a harm that resulted from such abuse.’’ (Internal quota-
tion marks omitted.) State v. Jenkins, 271 Conn. 165,
189, 856 A.2d 383 (2004); see State v. Bennett, supra,
324 Conn. 761–62 (affording abuse of discretion review
to claim that court improperly determined that hearsay
statement was not admissible under residual
exception).
‘‘The legal principles guiding the exercise of the trial
court’s discretion regarding the admission of hearsay
evidence under the residual exception are well estab-
lished. An [out-of-court] statement is hearsay when it
is offered to establish the truth of the matters contained
therein. . . . As a general rule, hearsay evidence is not
admissible unless it falls under one of several well estab-
lished exceptions. . . . The purpose behind the hear-
say rule is to effectuate the policy of requiring that
testimony be given in open court, under oath, and sub-
ject to cross-examination.’’ (Internal quotation marks
omitted.) State v. Bennett, supra, 324 Conn. 762. Section
8-9 of the Connecticut Code of Evidence, which is ‘‘[t]he
residual, or catchall, exception to the hearsay rule
allows a trial court to admit hearsay evidence not admis-
sible under any of the established exceptions if: (1)
there is a reasonable necessity for the admission of the
statement, and (2) the statement is supported by the
equivalent guarantees of reliability and trustworthiness
essential to other evidence admitted under the tradi-
tional hearsay exceptions. . . . [T]he residual hearsay
exceptions [should be] applied in the rarest of cases
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Id.
In Bennett, our Supreme Court considered whether
the trial court abused its discretion in denying the
admission, pursuant to § 8-9 of the Connecticut Code of
Evidence, of a recorded statement made by a purported
eyewitness to the police on the same day that the victim
had been murdered. Id., 760. There, the trial court
‘‘rested its decision solely on the ground that [the wit-
ness’] statement lacked sufficient reliability and trust-
worthiness.’’ Id., 763. Our Supreme Court concluded
that the trial court had not abused its discretion in
denying the admission of the witness’ statement
because the witness ‘‘had never been subjected to cross-
examination regarding the circumstances surrounding
her observations of the incident. A declarant’s availabil-
ity for cross-examination has been deemed particularly
significant in determining whether hearsay evidence is
supported by guarantees of trustworthiness and relia-
bility. . . . [The witness] conceded in her statement
that the lighting was too limited to make out any distin-
guishing features of the people at the scene. [The wit-
ness] was never subject to cross-examination to further
explore her ability to properly observe the events that
she reported or her ability to accurately hear the sounds
and statements that she had reported (i.e., how far she
was from the incident, whether she has any visual or
hearing impairments, whether there were obstructions
or distractions at the time). . . .
‘‘Additionally, the evidence at trial not only failed
to materially corroborate [the witness’] statement, it
contradicted her statement in part. . . . None of the
witnesses reported hearing any gunshots, and [the vic-
tim’s] injuries were inflicted by a knife. [The witness’]
report that a man in a yellow shirt was kneeling beside
the victim stating, Oh, I killed him. I killed him, was
consistent with the other witnesses only insofar as they
reported that [the victim’s friend] wore a yellow shirt
as he knelt by [the victim]; no one reported that anyone
had made statements remotely consistent with that
statement or any others recounted by [the witness].
Given that [the witness’] report of this inculpatory state-
ment constituted hearsay within hearsay, the lack of
corroboration bore significantly on its indicia of reliabil-
ity.’’ (Citations omitted; internal quotation marks omit-
ted.) Id., 763–64.
In the present case, as in Bennett, the eyewitness,
Morgan Brown, never was subjected to cross-examina-
tion; thus, the trustworthiness and reliability of the
interview is undermined by the parties’ inability to ques-
tion her as to her ability to perceive the events that
night. We agree with the trial court that cross-examina-
tion was particularly important given the substance of
Morgan Brown’s interview. She told the police that the
driver was a black female with a light complexion, how-
ever, it is unclear the extent to which the allegedly
dark tinted windows on the female’s vehicle hindered
Morgan Brown’s observation. She also provided a
description of the car that was driven by the female,
but could not recall anything distinctive about it
because there were ‘‘so many’’ cars because it was a
busy street, and she ‘‘really wasn’t paying attention to
it.’’ She also told the police that the shooter had twice
walked directly in front of the vehicle in which she was
sitting and looked at her, but she later discounted her
observation by stating that she ‘‘did [not] really see his
face’’ and that he was wearing the hood on his
sweatshirt.
The state also did not have the opportunity to cross-
examine Morgan Brown as to the critical uncertainties
contained within the interview. For example, she told
the police that she saw the shooter walking down the
street and, although she did not see what car he came
from, that he must have exited the female’s car. She
further stated that when the shooter rapidly exited the
residence, he hopped in ‘‘the car and they pulled off.’’
It is unclear from both of these statements which car,
if any, the shooter came from and to which car he
returned.
Furthermore, also as in Bennett, the evidence pre-
sented at trial failed to corroborate in many material
respects, and actually contradicted, Morgan Brown’s
version of events. For instance, Morgan Brown stated
that the car in which the shooter purportedly arrived
was driven by a female, however, Helwig, a male, testi-
fied at trial that he was the driver of the car that the
defendant arrived and left in. She also told the police
that the shooter departed 31 Kossuth Street without a
gun, conversely, there was evidence presented at trial
to establish that the defendant sprinted back to the
vehicle with a gun in his hand and, after entering the
vehicle, he pointed the gun at Helwig and told him to
go. Therefore, we conclude that the court did not abuse
its discretion in concluding that the video recording of
Morgan Brown’s interview was not sufficiently reliable
or trustworthy to support its admission under the resid-
ual exception.
The defendant also argues that, ‘‘the defendant’s con-
stitutional rights to present a defense and to confronta-
tion and due process requires the admission of this
evidence without strict adherence to the evidentiary
rules.’’ As noted in part II of this opinion, such a claim
is without merit. See State v. Bennett, supra, 324 Conn.
764 (‘‘[i]f . . . we conclude that the trial court properly
excluded the proffered evidence, then the defendant’s
constitutional claims necessarily fail’’ [internal quota-
tion marks omitted]).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant originally appealed to our Supreme Court pursuant to
General Statutes § 51-199 (b) (3). The appeal subsequently was transferred
to this court pursuant to Practice Book § 65-1.
2
It is unclear whether ‘‘Perry’’ was this individual’s first or last name
because he only was referred to as Perry throughout the trial.
3
Section 8-5 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule, provided the
declarant is available for cross-examination at trial . . . (2) The identifica-
tion of a person made by a declarant prior to trial where the identification
is reliable.’’
4
Section 8-4 (a) of the Connecticut Code of Evidence provides: ‘‘Any
writing or record, whether in the form of an entry in a book or otherwise,
made as a memorandum or record of any act, transaction, occurrence or
event, shall be admissible as evidence of the act, transaction, occurrence
or event, if the trial judge finds that it was made in the regular course of
any business, and that it was the regular course of the business to make
the writing or record at the time of the act, transaction, occurrence or event
or within a reasonable time thereafter.’’
5
Section 8-9 of the Connecticut Code of Evidence provides: ‘‘A statement
that is not admissible under any of the foregoing exceptions is admissible
if the court determines that (1) there is a reasonable necessity for the
admission of the statement, and (2) the statement is supported by equivalent
guarantees of trustworthiness and reliability that are essential to other
evidence admitted under traditional exceptions to the hearsay rule.’’
6
The defendant also argues that the court erroneously made three subsid-
iary factual findings that (1) Jackson had not returned to the bedroom to
obtain clothing for the defendant, (2) Nixon and Jackson were informed
that they had the right to refuse to consent to the search, and (3) no officer
pointed a weapon at Nixon when they entered the home or at Nixon and
Jackson when they sought consent to search the bedroom. These findings
warrant little discussion because there was evidence presented at the motion
to suppress hearing to support them. First, Podsiad testified that Jackson
was not permitted to return upstairs, and Nixon testified that there were
officers standing at the bottom of the stairs preventing anyone from going
back upstairs. Second, Sergeant Jacobson testified that both Nixon and
Jackson each had signed a consent to search form that contained an express
disclaimer that they had ‘‘been informed of [their] constitutional rights not
to have a search made without a search warrant, and [their] right to refuse
to consent to such a search . . . .’’ Third, although there was testimony
that the officers pointed their guns at Jackson when they first entered the
bedroom, as they were aware that the defendant potentially was armed,
there was no evidence presented that an officer pointed a gun at Jackson
at any other point in time, or at Nixon at any time.
7
See State v. Brunetti, supra, 279 Conn. 70 (‘‘[i]t is true that, if the police
had instructed the [individual who provided consent] that they would obtain
a search warrant if he had refused to give consent, then such consent would
have been involuntary, for constitutional purposes, because the intimation
that a warrant will automatically issue is as inherently coercive as the
announcement of an invalid warrant’’ [internal quotation marks omitted]).
8
The state alternatively argues on appeal that the evidence seized from
the bedroom would have been admissible, even if it was seized therefrom
in violation of the defendant’s constitutional rights, pursuant to the inevitable
discovery doctrine. See State v. Shields, 308 Conn. 678, 689 n.13, 69 A.3d
293 (2013), cert. denied, 571 U.S. 1176, 134 S. Ct. 1040, 188 L. Ed. 2d 123
(2014). We need not reach this alternative argument in light of our conclusion
that the court’s voluntariness finding was not clearly erroneous.
9
We note that the rationale for the identification exception in § 8-5 (2)
of the Connecticut Code of Evidence applies with equal force to positive
identifications and nonidentifications. Section 8-5 (2) of the Connecticut
Code of Evidence has two requirements: that the declarant is available for
cross-examination and that the identification is reliable. If the Browns had
been available for trial, the opportunity to test what they said or did during
their reviews of the photographic array would have been the same regardless
of whether they made an identification. Similarly, the reliability of the asser-
tion resulting from the identification procedure is the same regardless of
whether it resulted in a positive identification or a nonidentification. Conse-
quently, had the Browns been available to testify at the defendant’s trial,
we see no reason why § 8-5 (2) of the Connecticut Code of Evidence would
not apply to their failure to identify the defendant prior to trial.
10
The state argues on appeal that the documents were irrelevant as offered
for this purpose because the circumstances under which the Browns
observed the shooter had not been admitted into evidence. We disagree
with the state that the court abused its discretion in determining that the
business records were relevant if offered for this purpose. See State v.
Fernando V., 331 Conn. 201, 212, 202 A.3d 350 (2019) (trial court’s relevancy
determination is subject to abuse of discretion review); see also §§ 4-1 and
4-2 of the Connecticut Code of Evidence; E. Prescott, Tait’s Handbook of
Connecticut Evidence (6th Ed. 2019) § 4.1, pp. 144–46. This inference is
relevant as exculpatory evidence as to whether the defendant was the individ-
ual who had shot the victim. If the Browns, who were in the proximity of
31 Kossuth Street when the victim was shot, were unable to identify the
defendant, from a photographic array, as the shooter, this fact would tend
to make it more probable that the defendant was not the shooter.