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STATE OF CONNECTICUT v. LUIS CASTRO
(AC 43386)
Keller, Prescott and Devlin, Js.
Syllabus
Convicted of the crime of murder in connection with the shooting death of
the victim, the defendant appealed. He claimed that the trial court vio-
lated his right under the confrontation clause of the sixth amendment
when it admitted into evidence a certain ballistics report, whose author
did not testify at trial, after defense counsel expressly waived the defen-
dant’s confrontation right. The state had elicited testimony from R, a
police forensics supervisor, about the findings of the report, which R
neither authored nor peer-reviewed. Defense counsel indicated to the
court that, to expedite matters, he had no objection to the admission
of the report or to R’s testifying about its contents. The defendant further
claimed that this court should hold that the right to confrontation can
only be personally waived by the defendant because article first, § 8, of
the Connecticut constitution provides greater protection than the federal
constitution. Held:
1. The defendant could not prevail on his unpreserved claim that counsel’s
waiver of his confrontation right was invalid because the trial court
failed to make a finding that counsel’s decision was a legitimate trial
tactic or part of a prudent trial strategy: despite the defendant’s claim
that his counsel’s rationale for the waiver, which was to expedite matters,
could not be considered a legitimate trial tactic or part of a prudent
trial strategy, counsel’s indication to the court that he had no objection
to the admission of the ballistics report or to R’s testifying as to its
contents constituted a valid, express waiver of the defendant’s sixth
amendment confrontation clause claim, and this court declined to apply
a rule requiring the trial court to explore defense counsel’s rationale
for the waiver and to make a finding that it was either a legitimate trial
tactic or part of a prudent trial strategy before accepting the waiver, our
Supreme Court having repeatedly and expressly rejected the proposition
that a trial court is required to assess defense counsel’s professional
judgment before accepting his or her waiver of a constitutional claim;
moreover, in circumstances in which defense counsel’s waiver of a
constitutional claim constitutes a violation of the defendant’s right to
the effective assistance of counsel, the defendant may seek recourse
through habeas corpus proceedings.
2. The defendant’s claim that the right to confrontation can only be personally
waived by the defendant was unavailing, as his assertion that article
first, § 8, of the state constitution provides greater protection than the
federal constitution was contrary to established precedent.
Submitted on briefs April 6—officially
released September 29, 2020
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of Waterbury and tried to the jury
before Alander, J.; verdict and judgment of guilty, from
which the defendant appealed. Affirmed.
Emily Graner Sexton, assigned counsel, and Mat-
thew C. Eagan, assigned counsel, filed a brief for the
appellant (defendant).
Maureen Platt, state’s attorney, Jesse Ware Giddings,
assistant state’s attorney, and Laurie N. Feldman, spe-
cial deputy assistant state’s attorney, filed a brief for
the appellee (state).
Opinion
PRESCOTT, J. The defendant, Luis Castro, appeals
from the judgment of conviction, rendered after a jury
trial, of murder in violation of General Statutes § 53a-
54a (a). On appeal, the defendant claims that the trial
court violated his right under the confrontation clause
of the sixth amendment to the United States constitu-
tion.1 Specifically, the defendant argues that the trial
court improperly admitted into evidence a ballistics
report that was authored by an individual whom the
defendant did not have an opportunity to confront
because he did not testify at trial, after defense counsel
expressly waived, without any legitimate or prudent
strategical reasons, the defendant’s confrontation right
with respect to the author of the ballistics report.2 The
defendant further argues that article first, § 8, of the
Connecticut constitution3 provides greater protection
than the federal constitution, and, thus, a waiver of the
right to confrontation must be personally made by the
defendant in order to comport with our state constitu-
tion. We disagree with the defendant and, accordingly,
affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On April 9, 2016, at about 2 a.m., a group of
people, including the defendant, Jacquise Henry, and
Michael Roman, arrived at Bobby D’s Café, a bar on
Whitewood Road in Waterbury. Shortly thereafter, the
group confronted the victim, Harry Mendoza, who was
by a pool table. Henry punched the victim in the face,
and a physical altercation involving many of the bar
patrons ensued. The bartender told everyone to leave.
The defendant, Henry, and the victim walked out to the
parking lot near the rear of the building. The defendant
took a revolver from his waistband and shot the victim
twice. The victim was transported to Waterbury Hospi-
tal where he died from his gunshot wounds.
Later that day, Henry turned himself in to the police
and gave a statement identifying the defendant as the
shooter. The police obtained a warrant for the defen-
dant’s arrest but were unable to find him. On April 18,
2016, the defendant turned himself in to the United
States Marshals Service in Puerto Rico. No weapon was
ever recovered. The defendant was charged with the
victim’s murder.4
The defendant elected a jury trial, which began on
May 14, 2018. On the third day of trial, the state called
as a witness Joseph Rainone, supervisor of the forensics
division of the Waterbury Police Department, and had
him explain the findings of a ballistics report, which
was admitted into evidence for substantive purposes
but that he neither authored nor peer-reviewed.5 Specifi-
cally, Rainone testified, inter alia, that, after assessing
a bullet recovered from the victim’s body, a state’s fire-
arms examiner concluded that it was discharged from
a .38 or .357 caliber firearm, which could have been a
revolver or a semiautomatic pistol. While testifying,
Rainone stated that, on the basis of the report, the bullet
would have come from a revolver.6 Defense counsel
did not object to either the admission of the ballistics
report or to Rainone’s testimony. At the conclusion of
the testimony, the court requested a sidebar conference
with counsel. Subsequently, outside the presence of
the jury, the court summarized the conference on the
record. The following colloquy ensued:
‘‘The Court: So, first I want to put on the record
that—a sidebar conversation I had with counsel at the
conclusion of Joseph Rainone’s testimony. Mr. Rainone
obviously testified as to the contents of the state lab
firearms report, exhibit 39. The defense had no objec-
tion to the admission of that report. And then Mr. Rai-
none testified as to the contents of the report. I just
wanted to verify that the defense had no objection to
Mr. Rainone testifying as to the contents of the report.
He obviously was not the author of that report. And
under Crawford v. Washington [541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004)], the defendant has a
right to have the author of that report testify. And,
[defense counsel], you indicated that you had no objec-
tion to Mr. Rainone testifying with respect to the report.
Anybody want to be heard?
‘‘[Defense Counsel]: Judge, just to complete the
record—
‘‘The Court: Yes.
‘‘[Defense Counsel]: —that is correct. I spoke with
the state’s attorney. Obviously that report, it speaks for
itself, it’s not terribly complicated. The issue would be
the individual that authored that report, I believe, is no
longer in the state. So, to expedite matters, [the state]
had indicated to me Mr. Rainone’s credentials and what
he would testify to. I saw no problem with it, what-
soever.
‘‘The Court: Okay.
‘‘[Defense Counsel]: So, I had no objection.
‘‘The Court: Okay.
‘‘[Defense Counsel]: I knew it was going to happen,
and it’s—
‘‘The Court: Okay, fine.
‘‘[Defense Counsel]: —absolutely no objection.’’
The jury found the defendant guilty of murder in
violation of § 53a-54a (a), and he was subsequently sen-
tenced to forty-seven years of incarceration. This
appeal followed.
I
The defendant first claims that the trial court violated
his sixth amendment right to confrontation by admitting
the ballistics report into evidence because, even though
defense counsel expressly waived the defendant’s right
to confront the author of the report, the waiver was
invalid.7 Specifically, the defendant argues that, pursu-
ant to State v. Rivera, 129 Conn. App. 619, 632, 22 A.3d
636, cert. denied, 302 Conn. 922, 28 A.3d 342 (2011),
counsel’s waiver of a defendant’s sixth amendment right
to confrontation is invalid unless (1) the defendant does
not dissent from his attorney’s decision, and (2) the
attorney’s decision is a legitimate trial tactic or part of
a prudent trial strategy. The defendant acknowledges
that he did not dissent, on the record, from his counsel’s
decision, but he contends that the trial court failed to
make a finding that the decision was a legitimate trial
tactic or part of a prudent trial strategy. Additionally, the
defendant asserts that defense counsel’s given rationale
for the waiver, namely, ‘‘ ‘to expedite matters,’ ’’ cannot
be considered a legitimate trial tactic or part of a pru-
dent trial strategy, and, to the extent that the trial court
accepted this rationale, it committed reversible error.
For these reasons, the defendant contends that he was
deprived of his confrontation right under the sixth
amendment. We disagree.
The defendant concedes that he did not preserve this
claim at trial and seeks review pursuant to State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015). Under Golding, ‘‘a defendant can
prevail on a claim of constitutional error not preserved
at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim
of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the
alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional viola-
tion beyond a reasonable doubt.’’ (Emphasis in original;
footnote omitted.) State v. Golding, supra, 239–40. ‘‘The
first two Golding requirements involve whether the
claim is reviewable, and the second two involve
whether there was constitutional error requiring a new
trial.’’ (Internal quotation marks omitted.) State v.
Fabricatore, 281 Conn. 469, 477, 915 A.2d 872 (2007).
With respect to the first two prongs, we note that
the record, which contains the full transcript of the trial
proceedings, is adequate for our review; see id.; and
the claim is of constitutional magnitude because it
implicates the defendant’s sixth amendment right to
confrontation. Accordingly, the defendant’s claim is
reviewable under Golding. Therefore, we next address
the merits of the defendant’s claim under the third prong
of Golding.
‘‘[A] constitutional claim that has been waived does
not satisfy the third prong of the Golding test because,
in such circumstances, we simply cannot conclude that
injustice [has been] done to either party . . . or that
the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial . . . . To
reach a contrary conclusion would result in an ambush
of the trial court by permitting the defendant to raise
a claim on appeal that his or her counsel expressly
had abandoned in the trial court.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Holness, 289 Conn. 535, 543, 958 A.2d 754 (2008).
‘‘It is well settled that a criminal defendant may waive
rights guaranteed to him under the constitution. . . .
The mechanism by which a right may be waived, how-
ever, varies according to the right at stake. . . . For
certain fundamental rights, the defendant must person-
ally make an informed waiver. . . . For other rights,
however, waiver may be effected by action of counsel.’’
(Citations omitted; internal quotation marks omitted.)
Mozell v. Commissioner of Correction, 291 Conn. 62,
71, 967 A.2d 41 (2009). ‘‘As to many decisions pertaining
to the conduct of the trial, the defendant is deemed
bound by the acts of his lawyer-agent . . . . Thus, deci-
sions by counsel are generally given effect as to what
arguments to pursue . . . what evidentiary objections
to raise . . . and what agreements to conclude regard-
ing the admission of evidence . . . . Absent a demon-
stration of ineffectiveness, counsel’s word on such mat-
ters is the last.’’ (Internal quotation marks omitted.)
State v. Kitchens, 299 Conn. 447, 468, 10 A.3d 942 (2011),
quoting New York v. Hill, 528 U.S. 110, 115, 120 S. Ct.
659, 145 L. Ed. 2d 560 (2000). ‘‘The fundamental rights
that a defendant personally must decide to waive are
therefore distinguishable from tactical trial rights that
are not personal to the defendant and that counsel may
choose to waive as part of trial strategy.’’8 State v. Gore,
288 Conn. 770, 778–79, 955 A.2d 1 (2008).
‘‘[T]he definition of a valid waiver of a constitutional
right . . . [is] the intentional relinquishment or aban-
donment of a known right.’’ (Internal quotation marks
omitted.) Id., 776. ‘‘When a party consents to or
expresses satisfaction with an issue at trial, claims aris-
ing from that issue are deemed waived and may not be
reviewed on appeal. See, e.g., State v. Holness, [supra,
289 Conn 544–45] (holding that defendant waived [claim
under Crawford v. Washington, supra, 541 U.S. 36, that
trial court improperly admitted recording of conversa-
tion in violation of confrontation clause of federal con-
stitution] when counsel agreed to limiting instruction
regarding hearsay statements introduced by state on
cross-examination) . . . .’’ (Citation omitted; empha-
sis added; internal quotation marks omitted.) Mozell v.
Commissioner of Correction, supra, 291 Conn. 71–72.
In the present case, the defendant does not dispute
that defense counsel knowingly and intentionally aban-
doned the defendant’s sixth amendment right to con-
front the author of the ballistics report. Rather, he main-
tains that, when counsel expressly waives a defendant’s
right to confrontation, the trial court has a duty to
‘‘[explore] defense counsel’s rationale for the waiver’’
and make a finding that it is either a legitimate trial
tactic or part of a prudent trial strategy before accepting
it. In support of that assertion, the defendant relies on
the standard under federal case law that this court
applied in Rivera, namely, that counsel may waive a
defendant’s sixth amendment right to confrontation, if
(1) the defendant does not dissent from his attorney’s
decision, and (2) ‘‘it can be said that the attorney’s
decision was a legitimate trial tactic or part of a prudent
trial strategy.’’ (Internal quotation marks omitted.) State
v. Rivera, supra, 129 Conn. App. 631.
In response, the state argues that the trial court has
no duty to elicit or examine the soundness of counsel’s
decision to waive a confrontation clause claim. More-
over, the state asserts that a claim that counsel’s waiver
was not part of a legitimate trial tactic or part of a
prudent trial strategy is, in essence, a claim of ineffec-
tive assistance of counsel, which can be properly
addressed only in a habeas corpus proceeding. We agree
with the state.9
Our Supreme Court has repeatedly and expressly
rejected the proposition that a trial court is required to
assess defense counsel’s professional judgment before
accepting his or her waiver of a constitutional claim.
Specifically, in Holness, the defendant argued, inter alia,
that defense counsel’s waiver of his sixth amendment
Crawford claim was invalid because the state did not
demonstrate that counsel’s waiver was knowing and
intelligent. The court disagreed, reasoning that,
‘‘[a]lthough a defendant will not be deemed to have
waived certain constitutional rights unless the state can
demonstrate that the defendant’s waiver was knowing
and intelligent . . . that requirement is inapplicable
when, as in the present case, counsel has waived a
potential constitutional claim in the exercise of his or
her professional judgment. . . . In our adversary sys-
tem, the trial court was entitled to presume that defense
counsel was familiar with Crawford and had acted com-
petently in determining that the limiting instruction was
adequate to safeguard the defendant’s sixth amendment
rights. To conclude otherwise would require the trial
court to canvass defense counsel with respect to coun-
sel’s understanding of the relevant constitutional princi-
ples before accepting counsel’s agreement on how to
proceed. For good reason, there is nothing in our crimi-
nal law that supports such a requirement.’’ (Citations
omitted; footnote omitted.) State v. Holness, supra, 289
Conn. 544.
The court employed the same rationale in Kitchens
to justify the implied waiver rule for jury instruction
claims. See State v. Kitchens, supra, 299 Conn. 482–83;
id., 486–91 (‘‘In adopting the standard set forth in this
opinion, we also rely on . . . the widely recognized
presumption that counsel is competent . . . . As we
explained in Holness, when . . . counsel has waived
a potential . . . claim . . . in the exercise of his or
her professional judgment . . . [it may be] presume[d]
that defense counsel was familiar with [the law] and
. . . acted competently in determining that the [court’s]
limiting instruction was adequate to safeguard the
defendant’s [constitutional] rights. To conclude other-
wise would require the trial court to canvass defense
counsel with respect to counsel’s understanding of the
relevant constitutional principles before accepting
counsel’s agreement on how to proceed. . . . [T]here
is nothing in our criminal law that supports such a
requirement.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.)). In State v. Bellamy,
323 Conn. 400, 414–19, 147 A.3d 655 (2016), the court
used the rationale again when rejecting the defendant’s
invitation to overrule Kitchens. See id., 419 (stating that
‘‘a comprehensive canvass of this nature not only would
be difficult if not impossible to conduct, but would not
promote this court’s interest in judicial economy, given
the time required to determine whether counsel was
aware of every conceivable constitutional principle
under which an instructional flaw might be identified’’).
Moreover, ‘‘in circumstances in which defense coun-
sel’s waiver of a constitutional claim cannot be justified,
that is, when the waiver constitutes a violation of the
defendant’s right to the effective assistance of counsel,
the defendant may seek recourse through habeas cor-
pus proceedings.’’ State v. Holness, supra, 289 Conn.
544 n.8. ‘‘[A] claim of ineffective assistance of counsel
is more properly pursued on a petition for new trial or
on a petition for a writ of habeas corpus rather than
on direct appeal . . . [because] [t]he trial transcript
seldom discloses all of the considerations of strategy
that may have induced counsel to follow a particular
course of action.’’ (Internal quotation marks omitted.)
State v. Taft, 306 Conn. 749, 768, 51 A.3d 988 (2012).
‘‘[A] habeas proceeding provides a superior forum for
the review of a claim of ineffective assistance because
it provides the opportunity for an evidentiary hearing
in which the attorney whose conduct is challenged may
testify . . . .’’ State v. Kitchens, supra, 299 Conn.
496–97; see also State v. Bellamy, supra, 323 Conn.
431 (reiterating that habeas proceeding is ‘‘ ‘superior
forum’ ’’ for reviewing claim of ineffective assistance
of counsel because it allows for development of record
‘‘sufficient to determine whether counsel waived [a]
claim for constitutionally acceptable strategic rea-
sons’’).
Defense counsel’s indication that he had ‘‘absolutely
no objection’’ to the admission of the ballistics report,
or to Rainone testifying to the contents of that report,
constituted a valid, express waiver of the defendant’s
sixth amendment confrontation clause claim. Thus, in
light of the authority already set forth in our discussion
of this claim, the defendant’s claim fails under the third
prong of State v. Golding, supra, 213 Conn. 240. The
defendant may seek recourse through habeas corpus,
which is the superior forum for determining whether
counsel waived a constitutional claim for acceptable
strategic reasons.10 See State v. Kitchens, supra, 299
Conn. 496–97; see also State v. Bellamy, supra, 323
Conn. 431.
Furthermore, we decline the defendant’s invitation
to apply the rule articulated under federal law in State
v. Rivera, supra, 129 Conn. App. 619, for two reasons.
First, that case is factually distinct from the present
case, in that it involved an instance of implied waiver,
not express waiver. Indeed, in that case, defense coun-
sel consented to the admission of a recording without
being aware that it contained a hearsay statement to
which she had objected, and the court excluded, when
it was offered into evidence through witness testimony.
See id., 623–24. As such, the court’s conclusion that
defense counsel had waived the defendant’s sixth
amendment claim by consenting to the admission of
the recording as a full exhibit arose from an inference
that defense counsel knowingly and voluntarily had
relinquished the right. Id., 636; see also State v. Bellamy,
supra, 323 Conn. 443 (‘‘implied waiver . . . arises from
an inference that the defendant knowingly and volunta-
rily relinquished the right in question . . . and . . .
competent counsel is presumed, when determining
whether a defendant’s waiver of a constitutional right
or statutory privilege has been knowing and intelligent’’
(citation omitted; internal quotation marks omitted)).11
By contrast, in the present case, there is no question
that defense counsel knowingly and voluntarily waived
the defendant’s right to confrontation.
Second, the federal standard applied in Rivera has
not been adopted by our Supreme Court, and may have
been superseded by more recent developments in Con-
necticut’s law of waiver, including our apparent diver-
gence from federal waiver law. Specifically, in Bellamy,
the defendant argued that the court should overrule
Kitchens and instead follow federal waiver law as it
pertains to unpreserved jury instruction claims. See
State v. Bellamy, supra, 323 Conn. 414, 433. The court
rejected this argument on the ground that, inter alia,
‘‘federal waiver law is inconsistent with our jurispru-
dence, thus making a comparison of federal and Con-
necticut law extremely difficult, if not impossible.’’ Id.,
435. The court explained that, under federal law, ‘‘[a]
finding of waiver requires evidence that the defendant
knowingly and voluntarily approved of the disputed
[jury] instruction after an on-the-record discussion . . .
or very clear evidence that the failure to object was
due to tactical considerations. . . .12 In contrast, Con-
necticut waiver law is construed more broadly . . .
and plain error review more strictly. . . . Unpreserved
claims that have not been waived are not automatically
reviewed under the plain error doctrine because the
plain error doctrine in Connecticut, unlike under federal
law, is one of reversibility rather than reviewability.’’
(Citations omitted; emphasis added; footnote added.)
Id., 437–38. Accordingly, in light of the fundamental
differences between federal case law and our state’s
jurisprudence in the law of waiver, we decline to apply
the federal standard articulated in Rivera, here, to an
instance in which defense counsel’s waiver was express
as opposed to implied.
II
The defendant’s second argument is that article first,
§ 8, of the Connecticut constitution provides greater
protection than the federal constitution and, thus, that
this court should hold that the right to confrontation
can only be personally waived by the defendant. We
reject this argument, as it is contrary to established
precedent. Indeed, in State v. Lockhart, 298 Conn. 537,
4 A.3d 1176 (2010), our Supreme Court determined that
‘‘with respect to the right to confrontation within article
first, § 8, of our state constitution, its language is nearly
identical to the confrontation clause in the sixth amend-
ment to the United States constitution. The provisions
have a shared genesis in the common law. . . . More-
over, we have acknowledged that the principles of inter-
pretation for applying these clauses are identical. . . .
Therefore, we are not convinced that we should . . .
construe the confrontation clause of our state constitu-
tion to provide greater protections than its federal coun-
terpart.’’ (Citations omitted.) Id., 555.
Similarly, in State v. Jones, 140 Conn. App. 455, 59
A.3d 320 (2013), aff’d, 314 Conn. 410, 102 A.3d 694
(2014), this court concluded that ‘‘there exists no legal
basis that suggests that our state constitution provides
the defendant any broader protection [than the federal
constitution] to confront a witness against him.’’ Id.,
466. ‘‘In the brief time since our Supreme Court con-
ducted [its analysis under State v. Geisler, 222 Conn.
672, 684–86, 610 A.2d 1225 (1992)] of the confrontation
clause in Lockhart, no decision from our state courts
or from our sister states’ appellate courts has called
into question the soundness of its logic. Further, there
are no compelling economic or sociological concerns
that have arisen since the analysis was authored that
would support a change in the interpretation of our
confrontation clause.’’ State v. Jones, supra, 475–76.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The sixth amendment to the United States constitution provides in rele-
vant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him . . . .’’ U.S. Const.,
amend. VI. ‘‘[T]he sixth amendment rights to confrontation and to compul-
sory process are made applicable to state prosecutions through the due
process clause of the fourteenth amendment.’’ (Internal quotation marks
omitted.) State v. Holley, 327 Conn. 576, 593, 175 A.3d 514 (2018).
2
The defendant also argues that the state cannot prove that the admission
of the ballistics report was harmless beyond a reasonable doubt because it
tied the state’s case together and bolstered the credibility of otherwise
unreliable eyewitnesses. Because we conclude that the defendant’s claim
fails under the third prong of State v. Golding, 213 Conn. 233, 240, 567 A.2d
823 (1989), as a result of defense counsel’s express waiver, we do not reach
the issue of whether the admission of the report constituted harmless error.
3
The constitution of Connecticut, article first, § 8, as amended by articles
seventeen and twenty-nine of the amendments, provides in relevant part:
‘‘In all criminal prosecutions, the accused shall have a right . . . to be
confronted by the witnesses against him . . . .’’
4
In addition to the murder charge, the state initially charged the defendant
with reckless endangerment in the first degree in violation of General Stat-
utes § 53a-63, unlawful discharge of a firearm in violation of General Statutes
§ 53-203, and carrying a pistol without a permit in violation of General
Statutes § 29-35. The state later chose not to pursue those additional charges
and filed a substitute information limited to the murder charge.
5
According to Rainone’s testimony, the procedure of the state forensic
science laboratory is that, after the examiner completes his or her report,
it is peer-reviewed by another individual for accuracy. Both the examiner
and the individual who conducted the peer-review sign the report.
6
Specifically, the prosecutor stated: ‘‘But this bullet would have come
from a revolver,’’ and Rainone responded, ‘‘[c]orrect, from what he’s saying—
yeah—well—yes, correct, from what he’s saying.’’
7
In Bullcoming v. New Mexico, 564 U.S. 647, 652, 131 S. Ct. 2705, 180 L.
Ed. 2d 610 (2011), the United States Supreme Court held that the confronta-
tion clause does not permit the prosecution to introduce a forensic labora-
tory report containing a testimonial statement by an analyst, certifying the
results of a test he performed, through the in-court testimony of another
scientist who did not sign the certification or perform or observe the test
reported in the certification. The accused has the right ‘‘to be confronted
with the analyst who made the certification, unless that analyst is unavailable
at trial, and the accused had an opportunity, pretrial, to cross-examine that
particular scientist.’’ Id. Moreover, as our Supreme Court stated in State v.
Walker, 332 Conn. 678, 212 A.3d 1244 (2019), ‘‘where the testifying expert
explicitly refers to, relies on, or vouches for the accuracy of the other expert’s
findings, the testifying expert has introduced out-of-court statements that,
if offered for their truth and are testimonial in nature, are subject to the
confrontation clause. . . . [E]xpert witnesses cannot be used as conduits
for the admission into evidence of the testimonial statements of others.’’
(Citations omitted.) Id., 694–95.
8
‘‘The fundamental rights that a defendant personally must waive typically
are identified as the rights to plead guilty, waive a jury, testify in his or her
own behalf, and take an appeal.’’ State v. Gore, 288 Conn. 770, 779 n.9, 955
A.2d 1 (2008).
9
To the extent that the state claims that a habeas proceeding is the only
forum to address a claim of ineffective assistance of counsel, we do not
agree. There are some instances in which an ineffective assistance of counsel
claim may be pursued on direct appeal. In State v. Crespo, 246 Conn. 665,
718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L.
Ed. 2d 909 (1999), our Supreme Court explained that, ‘‘[a]lmost without
exception, we have required that a claim of ineffective assistance of counsel
must be raised by way of habeas corpus, rather than by direct appeal,
because of the need for a full evidentiary record for such [a] claim. . . .
On the rare occasions that we have addressed an ineffective assistance of
counsel claim on direct appeal, we have limited our review to allegations
that the defendant’s sixth amendment rights had been jeopardized by the
actions of the trial court, rather than by those of counsel. . . . We have
addressed such claims, moreover, only where the record of the trial court’s
allegedly improper action was adequate for review or the issue presented was
a question of law, not one of fact requiring further evidentiary development.’’
(Citations omitted; emphasis in original; internal quotation marks omitted.)
Id., 687–88.
Additionally, in State v. Polynice, 164 Conn. App. 390, 133 A.3d 952, cert.
denied, 321 Conn. 914, 136 A.3d 1274 (2016), this court acknowledged that
‘‘[a] claim of ineffective assistance of counsel is generally made pursuant
to a petition for a writ of habeas corpus rather than in a direct appeal. . . .
Section 39-27 of the Practice Book, however, provides an exception to that
general rule when ineffective assistance of counsel results in a guilty plea.’’
(Internal quotation marks omitted.) Id., 397.
10
We note that, in the present case, defense counsel may not have fully
articulated all of his reasons for the waiver, and the trial court risks interfer-
ing with the defendant’s right to counsel and the attorney-client relationship
if the court asks counsel, during trial, for a full explanation of his strategy.
11
In drawing that inference, the court noted that the fact that defense
counsel used the recording containing the hearsay statement to the defen-
dant’s benefit—referring to it during cross-examination of a state’s witness
and in closing argument—indicates that she was following a sound or pru-
dent trial strategy when she consented to its admission. See State v. Rivera,
supra, 129 Conn. App. 634–35. Under Connecticut’s implied waiver jurispru-
dence, it is appropriate for a court to consider ‘‘the particular facts and
circumstances surrounding [the] case, including the . . . conduct of the
[person waiving the right] . . . .’’ (Internal quotation marks omitted.) State
v. Kitchens, supra, 299 Conn. 484; id. (‘‘[i]t . . . is well established that any
such inference [of waiver] must be based on a course of conduct’’).
12
For the latter proposition, the court in Bellamy cited United States v.
Cooper, 243 F.3d 411, 416 (7th Cir.), cert. denied, 534 U.S. 825, 122 S. Ct.
64, 151 L. Ed. 2d 31 (2001), which is one of the cases this court cited in
Rivera to support its conclusion that the federal waiver standard should be
applied. See State v. Rivera, supra, 129 Conn. App. 632–35. Cooper involved
a claim by the defendant that his sixth amendment right to confrontation
was violated by the government’s repeated references to the substance of
an anonymous tip. See United States v. Cooper, supra, 415. In resolving the
claim, the court adopted the standard used by the majority of federal Circuit
Courts of Appeals at that time, namely, ‘‘a defendant’s attorney can waive
his client’s [s]ixth [a]mendment confrontation right so long as the defendant
does not dissent from his attorney’s decision, and so long as it can be said
that the attorney’s decision was a legitimate trial tactic or part of a prudent
trial strategy.’’ (Internal quotation marks omitted.) Id., 418.