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STATE OF CONNECTICUT v. DIANE WILLIAMS
(AC 40953)
Elgo, Cradle and Devlin, Js.
Syllabus
The defendant, who had been convicted of the crime of larceny in the first
degree, appealed to this court, challenging various evidentiary rulings
by the trial court and its denial of her request to secure the attendance
at trial of several out-of-state witnesses pursuant to statute (§ 54-82i).
The defendant had been a finance director for the state chapter of the
American Red Cross and was responsible for reporting payroll informa-
tion to P Co., which produced payroll checks and made direct deposits
into American Red Cross employees’ bank accounts. The defendant
was responsible for using SPIN, an online reporting system, to report
employee salaries and benefits to the national chapter of the American
Red Cross. After the defendant’s employment was terminated following
a merger of several American Red Cross chapters, her responsibilities
were taken over by L, the chief financial officer for the Connecticut
American Red Cross. L compared P Co.’s records to the SPIN reports
that the defendant had submitted and discovered that the defendant
had paid herself $409,647.47 more than she was entitled to while she
was employed by the American Red Cross. Thereafter, the defendant
gave state police detectives a written, six page statement in which
she admitted that she had embezzled money from the American Red
Cross. Held:
1. The defendant could not prevail on her claim that the trial court abused
its discretion in admitting the SPIN reports into evidence pursuant to
the statutory (§ 52-180) business records exception to the rule against
hearsay because nothing in L’s testimony indicated that the American
Red Cross prepared the SPIN reports in the regular course of business;
the record plainly indicated that the three statutory requirements for the
admissibility of the SPIN reports under the business records exception
to the hearsay rule were satisfied, as L testified that the defendant was
responsible for submitting individual payroll information to the national
chapter of the American Red Cross, that the national chapter of the
American Red Cross would create SPIN reports for pension and insur-
ance purposes, and that the creation of SPIN reports was in the normal
course of business for the national chapter of the American Red Cross.
2. The trial court did not abuse its discretion in sustaining various evidentiary
objections by the state to certain documents and testimony that the
defendant proffered at trial, the defendant having failed to demonstrate
that any of the court’s rulings were harmful; the state presented over-
whelming evidence of the defendant’s guilt, most notably her confession,
which she read, signed and corrected, and which was sufficiently corrob-
orated by her intimate knowledge of the details of the crime and the
testimony of one of the detectives that the defendant reviewed and
understood the statement before swearing to its accuracy.
3. The defendant’s claim that the trial court abused its discretion by denying
her request for certificates to subpoena out-of-state witnesses pursuant
to § 54-82i (c) and by considering the timeliness of her request was
unavailing:
a. The limited nature of the defendant’s proffer at trial failed to demon-
strate that the witnesses were material and necessary, as she provided
generalized allegations in her written applications as to what they could
testify to and what documents they could provide, her appellate coun-
sel’s more specific references to offers of proof at oral argument before
this court pertained to collateral issues that were immaterial to whether
she embezzled funds, and much of the proffered testimony would have
been cumulative because similar issues had already been explored dur-
ing cross-examination; moreover, the defendant made no offer of proof
that the testimony of the proposed witness who was the source of the
SPIN information would have challenged the reliability or authenticity
of the SPIN reports.
b. The trial court’s consideration of timeliness and delay as a factor in
determining whether to grant the defendant certificates was not an
abuse of discretion: contrary to the defendant’s claim that whether she
would have had the time to secure the witnesses was not relevant, a
delay of the trial for an indeterminate amount of time as a result of the
issuance of the certificates was not inconsequential, as the court had
confirmed the trial schedule with counsel so that it could advise venire-
persons of the time commitment expected of them at trial, and consid-
ered that the case had been pending for more than five and one-half
years and that the defendant could have taken numerous steps to secure
the testimony of the witnesses in the fifteen months since the mistrial
in this case; moreover, nothing in § 54-82i (c) impaired the court’s obliga-
tion to oversee the management of the trial and the impact that delays
could have on the availability of jurors, trial dates and the court’s docket,
and the complicated procedural and logistical consequences that arise
from the issuance of certificates pursuant to § 54-82i (c) underscored
the defendant’s need to make timely and adequately supported applica-
tions to the court.
Argued September 10, 2020—officially released January 26, 2021
Procedural History
Substitute information charging the defendant with
the crime of larceny in the first degree, brought to the
Superior Court in the judicial district of Middlesex and
tried to the jury before B. Fischer, J.; verdict and judg-
ment of guilty, from which the defendant appealed to
this court. Affirmed.
Raymond L. Durelli, assigned counsel, for the appel-
lant (defendant).
Brett R. Aiello, deputy assistant state’s attorney, with
whom, on the brief, were Michael A. Gailor, state’s
attorney, and Peter A. McShane, former state’s attorney,
for the appellee (state).
Opinion
ELGO, J. The defendant, Diane Williams, appeals
from the judgment of conviction, rendered after a jury
trial, of larceny in the first degree in violation of General
Statutes § 53a-122 (a). On appeal, the defendant chal-
lenges the propriety of various evidentiary rulings and
the denial of her request to secure the attendance at
trial of several out-of-state witnesses. We affirm the
judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
resolution of this appeal. The defendant was a finance
director for the American Red Cross, Middlesex County
chapter (chapter). She was hired by Brenda J. Simmons,
who was the executive director of the chapter. The
American Red Cross employed both hourly and salaried
employees; the defendant’s position as finance director
was a salaried position. Unlike hourly employees, Amer-
ican Red Cross employees who were salaried were not
entitled to overtime. As finance director, the defendant
was responsible for reporting the chapter’s finances to
Simmons, which included payroll, accounts payable and
receivable, as well as assisting Simmons in preparing
budgets. From 2006 to 2010, the salary for the finance
director position at the American Red Cross ranged
from $49,000 to $57,000. The American Red Cross had
a ‘‘use it or lose it’’ policy with regard to vacation time,
pursuant to which employees would forfeit their unused
vacation time if it was not used by March 1 of the
following year.
As part of her payroll responsibilities, the defendant
was required to fill out payroll information in an online
data entry system and then report that information to
Paychex, a payroll processing company. Paychex used
that information to produce payroll checks and to make
direct deposits into employees’ bank accounts. The
defendant was the only chapter employee responsible
for communicating with Paychex. When Paychex deliv-
ered the paychecks, the defendant personally received
them. Simmons was not responsible for reviewing cor-
respondence from Paychex. Additionally, the defendant
was responsible for submitting ‘‘SPIN reports.’’ SPIN is
an online reporting system utilized by local chapters of
the American Red Cross to report employee salaries
and benefits to the national chapter of the American
Red Cross (national). SPIN reports, thus, were intended
to be an accurate reflection of what a person earned
as an employee of the American Red Cross.
On June 30, 2010, the defendant’s employment was
terminated following the merger of several chapters of
the American Red Cross, which eliminated the need
for her position. At that time, Paula Lajoie, the chief
financial officer for the Connecticut American Red
Cross, took over the defendant’s responsibilities. In
2011, while conducting a closeout audit of the chapter,
Lajoie sought payroll information that had been main-
tained by the defendant. Despite searching the chapter’s
entire building, including the defendant’s former office,
Lajoie was unable to locate payroll records for the chap-
ter’s employees. That search raised other concerns for
Lajoie, as she was unable to locate any of the payroll
records that the defendant had been responsible for
archiving. In addition, the defendant’s work computer
had been ‘‘wiped clean,’’ and Lajoie was unable to find
any of the defendant’s human resource records. The
defendant was uncooperative when questioned by
Lajoie.
Thereafter, Lajoie obtained records from Paychex to
review the defendant’s compensation while employed
with the American Red Cross. Lajoie discovered that
the defendant’s actual compensation was significantly
greater than the $47,000 to $57,000 typical salary range
for the position of finance director and the figures that
the defendant had reported to the American Red Cross
through internal SPIN reports.1 The defendant’s W-2
tax forms, which were admitted into evidence at trial,
confirmed that the Paychex records accurately
reflected how much the defendant had been paid by
the American Red Cross. A comparison of the Paychex
records to the internal SPIN reports submitted by the
defendant revealed that the defendant had paid herself
$409,647.47 more than she was entitled to.
On September 28, 2011, Detective Anthony Buglione,
who was assigned to the state police Central District
Major Crime Squad, and his partner, Detective Kevin
A. Slonski, interviewed the defendant at her home
regarding her inflated earnings. The defendant at that
time agreed to provide an oral statement, which was
transcribed by Buglione. After the interview was com-
plete, the defendant signed Buglione’s transcription of
their conversation.2 In that six page statement, the
defendant admitted that she had embezzled money from
the American Red Cross from 2006 to 2010. On the basis
of that signed confession, the defendant was charged
with larceny in the first degree in violation of § 53a-122
(a).3 Following a jury trial, the defendant was found
guilty of larceny in the first degree. The court rendered
judgment accordingly, sentencing the defendant to a
term of thirteen years of incarceration, execution sus-
pended after eight years, and five years of probation.
This appeal followed.
On appeal, the defendant raises sixteen claims of
error, divided into three groupings: (1) whether the
court improperly admitted her SPIN reports; (2)
whether the court improperly sustained various eviden-
tiary objections by the state; and (3) whether the court
erred in its denial of her request to secure the atten-
dance of several out-of-state witnesses.4
I
The defendant first claims that the court abused its
discretion by admitting into evidence state’s exhibit 7,
a spreadsheet containing the defendant’s SPIN reports
that summarized her biweekly salary and payroll earn-
ings from 2006 to 2010. We disagree.
‘‘The standard for review of evidentiary rulings is
well established.’’ State v. Carpenter, 275 Conn. 785,
815, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025,
126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006). ‘‘[T]he trial
court has broad discretion in ruling on the admissibility
. . . of evidence. . . . The trial court’s ruling on evi-
dentiary matters will be overturned only upon a show-
ing of a clear abuse of the court’s discretion. . . . We
will make every reasonable presumption in favor of
upholding the trial court’s ruling, and only upset it for
a manifest abuse of discretion. . . . Moreover, eviden-
tiary rulings will be overturned on appeal only where
there was an abuse of discretion and a showing by the
defendant of substantial prejudice or injustice.’’ (Inter-
nal quotation marks omitted.) State v. Gonzalez, 272
Conn. 515, 542, 864 A.2d 847 (2005).
The following additional facts are relevant to the
defendant’s evidentiary claim. At trial, the state sought
to introduce into evidence the defendant’s SPIN reports
so that the jury could compare the figures that she had
reported to national with her W-2 tax statements. That
comparison would demonstrate that the defendant had
received hundreds of thousands of dollars more in com-
pensation than what she reported to national. To lay
the appropriate foundation for this evidence, the state’s
attorney questioned Lajoie as follows:
‘‘Q. Okay. . . . [I]s that report kept in the ordinary
course of business by the American Red Cross?
‘‘A. Yes, it was.
‘‘Q. And are those SPIN numbers or the numbers
reflected there recorded at or about the time that some-
one receives a paycheck for benefit purposes?
‘‘A. Yes. They were filed each pay period.’’
When the state attempted to offer the defendant’s
SPIN report into evidence, the defendant conducted a
voir dire of Lajoie, in which Lajoie conceded that she
did not know who prepared the SPIN reports. The court
asked Lajoie if she prepared the document, and Lajoie
confirmed that she did not. The court then sustained
the defendant’s objection but advised the state that it
might be able to admit the report with additional foun-
dation.
Later in its direct examination of Lajoie, the state
again attempted to offer the SPIN reports into evidence.
The court at that time heard arguments on the admissi-
bility of the SPIN reports. During that exchange, defense
counsel argued that ‘‘one of the problems is [that the
SPIN reports contained in exhibit 7 do not] even have
any indicia of reliability. It just . . . doesn’t even look
like an official document. It has no Red Cross marking.’’
In response, the court engaged in the following colloquy
with Lajoie:
‘‘Q. . . . [A]s far as the salary of a Red Cross employee
. . . in the regular course of business, if you wanted to
find out the salary of a Red Cross employee, you would
go to national, and they would, basically, produce a
SPIN report on that employee?
‘‘A. Normally, you would go to a human resources
file. We went to SPIN because that file was missing.
‘‘Q. All right. But the SPIN accurately reflects the
salary of a Red Cross employee?
‘‘A. Yes.
‘‘Q. All right. And you have observed . . . many of
these . . . SPIN reports of Red Cross employees?
‘‘A. Yes.
‘‘Q. So, in the regular course of business for [national],
they keep, if requested, SPIN reports on employees;
correct?
‘‘A. They did. They’re not using the system now, so
I just want to clarify.
‘‘Q. But, back then?
‘‘A. But, back when they did use that system . . . yes.
‘‘Q. You know, whether someone is a . . . clerical
worker or finance director . . . you could find that
out; correct?
‘‘A. Yes.
‘‘Q. And is that information provided by the employee
to national? In other words, does [the defendant] submit
that to national?
‘‘A. It was done through finance. So, in this case, it
would have been [the defendant], but in her capacity
as a finance person, [not as an employee]—
‘‘Q. All right. Submitting this . . . to [national so a
SPIN report could be produced?] . . .
‘‘A. It drove some of the pension and insurance, so
it was used in that capacity.
‘‘Q. All right. And that’s in the normal course of busi-
ness for the national; is that correct?
‘‘A. Yes.’’
In light of that testimony, the trial court admitted the
defendant’s SPIN report into evidence.
On appeal, the defendant argues that the court abused
its discretion in admitting the defendant’s SPIN reports
because that evidence was hearsay and did not satisfy
the requirements of the business records exception to
reports fall under the business records exception to the
hearsay rule because testimony established that the
records were ‘‘kept in the ordinary course of business
by the [American Red Cross] . . . .’’ (Internal quotation
marks omitted.)5 We agree with the state.
‘‘Hearsay is an out-of-court statement offered to
prove the truth of the matter asserted. . . . Unless sub-
ject to an exception, hearsay is inadmissible. . . . If
the proffered evidence consists of business records, the
court must determine whether the documents satisfy
the modest requirements under [General Statutes] § 52-
180 to admit them under the business records exception
to the hearsay rule.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Midland Fund-
ing, LLC v. Mitchell-James, 163 Conn. App. 648, 655,
137 A.3d 1 (2016). ‘‘To be admissible under the business
record[s] exception to the hearsay rule, a trial court
judge must find that the record satisfies each of the
three conditions set forth in . . . § 52-180. The court
must determine, before concluding that it is admissible,
[1] that the record was made in the regular course of
business, [2] that it was the regular course of such
business to make such a record, and [3] that it was
made at the time of the act described in the report, or
within a reasonable time thereafter. . . . In applying
the business records exception, the statute . . . should
be liberally interpreted. . . . In part, this is because
the statute recognizes the inherent trustworthiness of
documents created for business rather than litigation
purposes.’’ (Citation omitted; internal quotation marks
omitted.) Calcano v. Calcano, 257 Conn. 230, 240–41,
777 A.2d 633 (2001). ‘‘[Our Supreme Court] repeatedly
has held that [i]t is not necessary . . . that the witness
have been the entrant himself or in the employ of the
business when the entry was made. . . . It is sufficient
for a witness to testify that it was the regular business
practice to create a document within a reasonable time
after the occurrence of the event. This is sufficient to
ensure that the document was created at the time when
the event was fresh in the author’s mind. . . . To
require the defendant to produce a witness that could
testify from personal knowledge as to the specific time
that a particular document was made would unduly
constrain the use of the business records exception and
directly contradict the liberal interpretation that this
court has accorded to § 52-180.’’ (Citations omitted;
internal quotation marks omitted.) Id., 241–42.
The defendant concedes that the first and third ele-
ments of the business records exception were satisfied
by Lajoie’s testimony. Nevertheless, she argues that the
second requirement for the business records exception
was not met at trial because ‘‘[n]othing in [Lajoie’s]
testimony indicates that the Red Cross prepared [the
defendant’s SPIN report] in the regular course of busi-
ness.’’ We disagree.
The defendant argues that the present case is analo-
gous to River Dock & Pile, Inc. v. O & G Industries,
Inc., 219 Conn. 787, 595 A.2d 839 (1991). In River Dock &
Pile, Inc., the plaintiff sought to admit a document into
evidence pursuant to the business records exception.
To do so, the plaintiff offered the testimony of a witness,
who stated that the document ‘‘was kept in the [busi-
ness’] files, and . . . was prepared in the ordinary
course of business . . . .’’ Id., 795. The witness none-
theless ‘‘did not testify as to whether it was in the
regular course of [the business] to make such a record
or whether the record was made at or within a reason-
able time of the act described in the exhibit.’’ Id., 795–96.
On appeal, our Supreme Court agreed with the defen-
dant that the trial court had improperly admitted the
document under the business records exception. Id.,
797. As the court explained, the plaintiff had offered
‘‘no testimony as to whether it was the regular business
to make such a record or whether the record was made
at or near the time of the act described in the report.
A brief examination of the document indicates that
the latter requirement was satisfied by notations in the
document itself, but we find nothing in the testimony
of [the witness] to indicate that it was in the regular
course of business of the [business] to prepare such
a record.’’ (Footnote omitted.) Id., 796–97. The court
further noted that, ‘‘[a]lthough § 52-180 is to be liberally
construed, we cannot allow any of the three statutory
requirements for the admission of business records to
be ignored completely.’’ Id., 797. The court thus con-
cluded that the trial court improperly admitted the doc-
ument in question under the business records excep-
tion. Id.
Unlike in River Dock & Pile, Inc., Lajoie’s testimony
in the present case established that the American Red
Cross generated SPIN reports in the regular course of
business for pension and insurance purposes. During
the colloquy with Lajoie, the court asked if the defen-
dant, in her capacity as finance director, was responsi-
ble for submitting individual payroll information to
national. Lajoie responded in the affirmative. The court
also asked if the payroll information was submitted to
national so that SPIN reports could be produced by
the American Red Cross. Lajoie answered that national
would create SPIN reports for pension and insurance
purposes. Finally, the court asked if creating SPIN
reports was ‘‘in the normal course of business for
[national].’’ Lajoie again answered in the affirmative.
The record thus plainly indicates that the three statutory
requirements for the admissibility of business records
were satisfied. Contra River Dock & Pile, Inc. v. O &
G Industries, Inc., supra, 219 Conn. 797. For that rea-
son, we conclude that the court did not abuse its discre-
tion in admitting the SPIN reports into evidence pursu-
ant to the business records exception.
II
The defendant’s second claim is that the court abused
its discretion by sustaining various objections by the
state. At trial, the court sustained the state’s objections
to (1) certain documents that were marked for identifi-
cation as exhibits J, K, L, P and Q,6 the defendant’s
attempt to impeach a witness named Elaine Niland
through the testimony of Simmons,7 (3) testimony by
the defendant that she was instructed not to cooperate
with Lajoie’s efforts regarding consolidation, (4) the
defendant’s testimony that Simmons took her personnel
file home and that Lajoie did not attempt to locate
Simmons’ missing personnel file, and (5) the defen-
dant’s testimony that Simmons previously was the sub-
ject of an investigation. The state argues that the court’s
evidentiary rulings were correct, and, in the alternative,
that any errors were harmless. We agree with the state’s
latter contention and conclude that any evidentiary
error in the present case was harmless.
It is well established that, ‘‘[w]hen an improper evi-
dentiary ruling is not constitutional in nature, the defen-
dant bears the burden of demonstrating that the error
was harmful. . . . [Our Supreme Court has] concluded
that a nonconstitutional error is harmless when an
appellate court has a fair assurance that the error did
not substantially affect the verdict. . . . [The court
has] considered a number of factors in determining
whether a defendant has been harmed by the admission
or exclusion of particular evidence. Whether such error
is harmless in a particular case depends [on] a number
of factors, such as [1] the importance of the witness’
testimony in the prosecution’s case, [2] whether the
testimony was cumulative, [3] the presence or absence
of evidence corroborating or contradicting the testi-
mony of the witness on material points, [4] the extent of
cross-examination otherwise permitted, and, of course,
[5] the overall strength of the prosecution’s case. . . .
Considering these various factors, we have declared
that the proper standard for determining whether an
erroneous evidentiary ruling is harmless should be
whether the jury’s verdict was substantially swayed by
the error.’’ (Citations omitted; internal quotation marks
omitted.) State v. Bonner, 290 Conn. 468, 500–501, 964
A.2d 73 (2009).
Our review of the record convinces us that the defen-
dant has failed to meet her burden of demonstrating
that any of the court’s evidentiary rulings were harmful.
Our conclusion is premised on the ‘‘weight of the state’s
evidence absent the contested [exhibits or] testimony
. . . .’’ (Internal quotation marks omitted.) State v.
Johnson, 171 Conn. App. 328, 339, 157 A.3d 120, cert.
denied, 325 Conn. 911, 158 A.3d 322 (2017). At trial, the
state presented overwhelming evidence of the defen-
dant’s guilt, most notably her six page confession. See
Arizona v. Fulminante, 499 U.S. 279, 296, 111 S. Ct.
1246, 113 L. Ed. 2d 302 (1991) (‘‘[a] confession is like
no other evidence’’).
Here, the defendant’s statement to the detectives was
drafted over a period of ninety minutes and was hand-
written by Buglione. Buglione testified that the defen-
dant read and signed the confession, and made correc-
tions to the statement. In that statement, the defendant
described, in painstaking detail, how she embezzled
funds from the American Red Cross. The defendant
stated that she began embezzling money after she ‘‘fig-
ured out’’ that ‘‘there was a button’’ on the Paychex
data entry system that ‘‘automatically doubled your pay-
check.’’ According to the defendant, starting in 2005,
she made approximately $65,000, but she should have
earned approximately $53,000 to $55,000 that year. The
defendant stated that, in 2006, she ‘‘began to really take
a lot of money from my payroll’’ and had paid herself
‘‘approximately $110,000’’ that year, which she acknowl-
edged ‘‘was approximately $50,000 more than [she] was
entitled to.’’ With respect to 2007, the defendant stated
that she was paid approximately $141,000 when her
salary ‘‘should have been less than $60,000.’’ She also
indicated that she ‘‘began to add hours and add comp
time and cash in vacation time’’ in 2007. When the defen-
dant ran out of vacation time, she stated, she ‘‘began
to fictitiously add vacation time that [she] certainly was
not entitled to.’’ The defendant further stated that she
paid herself ‘‘approximately $132,000’’ in 2008, and
$189,000 in 2009. In January, 2010, after learning that
‘‘[her] job was going to be eliminated at some point
during the year’’ due to consolidation among local chap-
ters of the American Red Cross, the defendant admitted
that she ‘‘continued to take the additional money for
as long as [she] could’’ and paid herself approximately
$80,000 for only six months of work. In addition, the
defendant explained in her statement why she stole
from the American Red Cross. The defendant stated
that she began having ‘‘financial difficulties’’ in 2005,
stemming in part from mortgage obligations and the
cost of her daughter’s college tuition. ‘‘Based on these
bills,’’ the defendant stated, she ‘‘began inflating [her]
pay from the Red Cross.’’ The defendant also indicated
that another reason why she stole from her employer
was ‘‘just impulse on [her] part,’’ stating that she ‘‘knew
that it was easy to doctor [her] paycheck because [Sim-
mons] never checked.’’ In that statement, the defendant
acknowledged that she was ‘‘aware of what she was
doing but was unable to stop,’’ and that she was
‘‘trapped, financially, and needed a way out.’’
As our Supreme Court has observed: ‘‘[A] confession,
if sufficiently corroborated, is the most damaging evi-
dence of guilt . . . and in the usual case will constitute
the overwhelming evidence necessary to render harm-
less any errors at trial.’’ (Internal quotation marks omit-
ted.) State v. Iban C., 275 Conn. 624, 645, 881 A.2d 1005
(2005); see also Milton v. Wainwright, 407 U.S. 371,
372–73, 92 S. Ct. 2174, 33 L. Ed. 2d 1 (1972). In the
present case, the defendant’s signed confession is suffi-
ciently corroborated. First, the defendant’s ‘‘intimate
knowledge of the details of this crime . . . provide[s]
strong corroboration for [her] confession.’’ State v. Shif-
flett, 199 Conn. 718, 752, 508 A.2d 748 (1986). The defen-
dant’s statement to the detectives was drafted over a
period of ninety minutes. See State v. Stevenson, 269
Conn. 563, 596, 849 A.2d 626 (2004). The defendant’s
confession also was corroborated by Buglione, who
testified that the defendant reviewed and understood
the statement before swearing to its accuracy. See State
v. Iban C., supra, 646. Because the evidentiary rulings in
question are not constitutional in nature,8 the defendant
bore the burden of demonstrating harmful error. See
State v. Bonner, supra, 290 Conn. 500–501. In light of
the signed confession that properly was admitted into
evidence and before the jury, we conclude that the
defendant has failed to establish the harmfulness of
any of the allegedly improper evidentiary rulings by
the court.
III
The defendant also claims that the court abused its
discretion by denying her request for certificates to
subpoena several out-of-state witnesses pursuant to
General Statutes § 54-82i (c) and by considering the
timeliness of her requests. We do not agree.
The following additional facts are relevant to the
defendant’s claim. On the first day of trial, May 9, 2017,
the defendant filed several applications for certificates
to summon the attendance of out-of-state witnesses.
The applications requested the attendance of Brian
Rhoa,9 Douglas Brownley,10 Ann Shearer,11 Frank R. Fav-
illa,12 and Teala Brewer.13 That same day, after the jury
was selected, both parties had a preliminary discussion
with the court about the defendant’s application for
out-of-state subpoenas. The prosecutor noted that, on
the basis of his experience, applications of this nature
‘‘take some time.’’ The court then discussed the proce-
dural history of the case and noted that the defendant’s
first trial had ended in a mistrial on February 9, 2016,
approximately fifteen months before the defendant filed
the applications at issue.14 The court asked defense
counsel if, during that fifteen month window, she had
taken advantage of Practice Book § 40-44,15 which
allows for the depositions of out-of-state witnesses in
criminal cases for discovery purposes. Defense counsel
conceded that she had not. In response, the court stated
that, although it ‘‘might be very inclined to grant [the]
requests,’’ the defendant needed to have the witnesses
in court when the state rested its case. The court at
that time stressed that the case was ‘‘going to . . . go
forward’’ and that no further delays would be enter-
tained. The court deferred ruling on the defendant’s
subpoena requests. No further action was taken by the
defendant until May 12, 2017, when, following the con-
clusion of the second day of evidence, the court heard
arguments on why each requested witness was material
and necessary. The court thereafter concluded that all
five of the out-of-state witnesses were not material or
necessary and declined to issue the subpoenas.
A
We first address the defendant’s contention that the
court improperly denied her request for certificates to
subpoena several out-of-state witnesses. Our review of
that claim is governed by the abuse of discretion stan-
dard. See State v. Bennett, 324 Conn. 744, 758–59, 155
A.3d 188 (2017).
The defendant’s request was filed pursuant to § 54-
82i (c), which provides in relevant part: ‘‘If a person in
any state . . . is a material witness in a prosecution
pending in a court of record in this state . . . a judge
of such court may issue a certificate under seal of the
court, stating such facts and specifying the number of
days the witness will be required.’’ ‘‘Section 54-82i is
Connecticut’s adoption of the 1936 revision of the Uni-
form Act to Secure the Attendance of Witnesses from
Without a State in Criminal Proceedings [Uniform Act].’’
Hickey v. Commissioner of Correction, 82 Conn. App.
25, 38, 842 A.2d 606 (2004), appeal dismissed, 274 Conn.
553, 876 A.2d 1195 (2005). ‘‘[T]he Uniform Act provides
a procedure for summoning a witness in the state of
the forum to testify in another state, and a procedure
for summoning a witness from another state to testify
in proceedings in the forum.’’ 25B Am. Jur. Pleading
and Practice Forms, Witnesses § 29 (2020). Pursuant to
the provisions of the Uniform Act, an issuing court must
make a predicate finding that the proposed witness is
a material witness. Id. The defendant argues that each
of the witnesses was material and necessary and that
the court improperly considered the timeliness of the
request in denying the applications.16
We have reviewed each of the defendant’s written
applications and verbal offers of proof to the court on
May 12, 2017, as to why the witnesses were material
and necessary. On the basis of that review, we conclude
that the defendant failed to demonstrate that Rhoa,
Brownley, Shearer, Favilla, and Brewer were material
and necessary witnesses. In the written applications,
the defendant provided generalized allegations that
each witness: (1) could testify that ‘‘the defendant is
an employee of [the American] Red Cross’’ (which was
never in dispute), and (2) ‘‘would be able to provide
. . . [a]ll notes, documents, memorandums, communi-
cations, [and] forensic accounting records of the inves-
tigation conducted by the [American Red Cross] regard-
ing the defendant’’ (which the defendant had already
obtained from prior discovery).; At oral argument
before this court, the defendant’s appellate counsel
gave more specific offers of proof for some of the wit-
nesses. For example, appellate counsel referred to
defense counsel’s proffer that Rhoa ‘‘indicate[d] [in the
schedule O] that the chapter removed the executive
director and [that] finances are monitored by the divi-
sion vice president in [national’s] headquarters.’’
Defense counsel proffered that, because Simmons pre-
viously testified that she retired voluntarily, Rhoa’s tes-
timony would impeach Simmons’ testimony as to that
issue. Defense counsel also proffered that Brownley
had ‘‘been involved with the insurance carrier . . . for
coverage regarding this case’’ and that ‘‘there [were]
discussion[s] about . . . what was the actual salary
. . . .’’ We agree with the state that the court did not
abuse its discretion in finding that each of those argu-
ments pertained to collateral issues, were immaterial
to the question of whether the defendant embezzled
funds from the American Red Cross, and that much of
this proffered testimony would be cumulative because
similar issues had already been explored during
cross-examination.
Even the proffered testimony of Shearer, who, as the
defendant asserted in her offer of proof, was the source
of the SPIN information, was insufficient to establish
that the court abused its discretion. We agree with the
defendant that Shearer’s testimony could have been
relevant, material and necessary if defense counsel had
proffered that Shearer’s testimony would have chal-
lenged the reliability or authenticity of the defendant’s
SPIN reports that were offered by the state and admitted
into evidence. However, the defendant did not make
such an offer of proof to the court. Instead, the defen-
dant merely proffered that Shearer could testify as to
whether the SPIN information was accurate. In light
of the limited nature of the proffer submitted by the
defendant, we conclude that the court did not abuse its
discretion in denying the defendant’s subpoena request.
B
The defendant also argues that the court improperly
rested its decision on the time constraints because
‘‘[w]hether or not [the] defendant would have had the
time to secure the witness is not relevant.’’ To the extent
that the court considered timeliness and delay as a
factor in determining whether to grant certificates pur-
suant to § 54-82i, we agree with the state that the court
did not abuse its discretion.
As we previously noted, § 54-82i is Connecticut’s
adoption of the Uniform Act. See Hickey v. Commis-
sioner of Correction, supra, 82 Conn. App. 38. ‘‘Deci-
sions from other states . . . are valuable aids for inter-
preting the provisions of [the Uniform Act].’’ Id., 39. In
Commonwealth v. Dirring, 354 Mass. 523, 238 N.E.2d
508 (1968), the Supreme Judicial Court of Massachu-
setts considered the issue of timeliness in the context
of the Uniform Act. In that case, the defendant filed
an application on the fifth day of trial requesting the
attendance of thirty-two out-of-state witnesses from
various states. Id., 529. The trial court denied the appli-
cation, in part, because the request was filed at a ‘‘late
stage’’ in the proceeding. Id. On appeal, the Massachu-
setts Supreme Judicial Court held that the denial of the
untimely applications was proper, stating: ‘‘The defen-
dant would have us read the word ‘may’ as ‘shall’. This
we decline to do. Some discretion must reside in the
trial judge to prevent abuses. . . . This is particularly
so in a case where a defendant tardily presents nothing
more than a list of names of persons residing in all
parts of the United States, and requests their presence
without any prima facie showing that their testimony
is relevant or competent.’’ (Citation omitted.) Id., 530.
The court continued: ‘‘It appears that [the defendant]
was arraigned on the indictment on June 10, 1963; the
trial commenced on April 6, 1964. Thus [the defendant]
had approximately ten months in which to prepare for
trial. . . . The denial of the motion reveals no abuse
of discretion.’’ Id. Other courts likewise have recognized
that one of the requirements under the Uniform Act is
that ‘‘the petition must be made in a timely manner.’’
People v. Williams, 114 Mich. App. 186, 201, 318 N.W.2d
671 (1982), appeal denied, 422 Mich. 909, 368 N.W.2d
246 (1985).
We reiterate that the plain language of § 54-82i (c)
provides in relevant part that, ‘‘[i]f a person in any state
. . . is a material witness in a prosecution pending in
a court of record in this state . . . a judge of such
court may issue a certificate under seal of the court,
stating such facts and specifying the number of days
the witness will be required. . . .’’ (Emphasis added.)
The text of § 54-82i (c) thus confers a degree of discre-
tion in ruling on such applications even when a defen-
dant has demonstrated that a witness is material to the
case. See State v. Bennett, supra, 324 Conn. 758–60
(despite materiality of witness, court did not improperly
deny certificate when defendant provided insufficient
information regarding address of witness). The defen-
dant here would have us read the discretionary language
contained in § 54-82i (c) as requiring trial courts to issue
subpoenas even when the applications are filed in the
middle of trial. We decline to do so.
As this court has observed, ‘‘[t]he trial court has the
responsibility to avoid unnecessary interruptions, to
maintain the orderly procedure of the court docket, and
to prevent any interference with the fair administration
of justice.’’ (Internal quotation marks omitted.) State v.
Stevenson, 53 Conn. App. 551, 562, 733 A.2d 253, cert.
denied, 250 Conn. 917, 734 A.2d 990 (1999); id., 563
(affirming denial of continuance to subpoena out-of-
state witness when defendant failed to specify probable
length of delay and could not assure trial court he would
be successful in obtaining witness’ attendance). The
interpretation of § 54-82i (c) advanced by the defendant
would impede those core responsibilities of the trial
court.
In the present case, the court reviewed the trial sched-
ule on May 3, 2017, just prior to the beginning of jury
voir dire and nearly one week before the defendant
filed her applications with the court. At that time, the
court confirmed with counsel its understanding from
an earlier chambers conference on April 28, 2017, that,
with evidence, deliberation, and additional days, the
jury would be advised that the trial will require a com-
mitment of ten days, from May 11 through 24, 2017.
When the court asked, ‘‘Am I correct with the schedule,
counsel?,’’ both counsel for the defendant and the state
agreed that they had represented to the court that that
should be sufficient time for trial and that the schedule
was correct. On May 9, 2017, following jury selection,
the defendant filed seven applications for the issuance
of certificates for out-of-state witnesses. In its initial
review of the applications, the court voiced its concern
that the case had been pending more than five and one-
half years and that it was ‘‘the oldest case in this judicial
district.’’ The court also questioned whether the defen-
dant had utilized Practice Book § 40-44 (2), which
allows for depositions of out-of-state witnesses in crimi-
nal cases for discovery purposes when their ‘‘presence
cannot be compelled under the provisions of General
Statutes § 54-82i . . . .’’17
Notably, the defendant does not dispute the court’s
concern that issuance of the certificates would have
triggered significant delay, requiring an independent
hearing by the courts in each of the respective jurisdic-
tions.18 At the same time, the defendant concedes that,
if she had sought a continuance, the trial court would
not have abused its discretion in denying that request.
She asserts, instead, that she is seeking only the right
to subpoena witnesses. See State v. Godbolt, 161 Conn.
App. 367, 375–79, 127 A.3d 1139 (2015) (court did not
abuse its discretion when it declined to grant defendant
continuance after considering timeliness, unspecified
length of delay and failure to utilize available proce-
dures to secure testimony of out-of-state witness), cert.
denied, 320 Conn. 931, 134 A.3d 621 (2016).19 When, as
in the present case, the inevitable effect of issuing a
certificate results in delaying the trial for an indetermi-
nate amount of time, that distinction is inconsequential.
Nothing in § 54-82i impairs the court’s obligation to
oversee the management of the trial and the impact
that unwarranted and unforeseen delays can have on
the availability of jurors, trial dates, and the court’s
overall docket.20 In fact, the complicated procedural
and logistical consequences arising from the issuance
of certificates pursuant to § 54-82i; see footnotes 16 and
18 of this opinion; underscore a defendant’s need to
make timely as well as adequately supported applica-
tions to the court. See State v. Cecil J., 99 Conn. App.
274, 292–93, 913 A.2d 505 (2007) (trial court did not
abuse its discretion in denying defendant continuance
to meet with witness to review documents on morning
of witness’ testimony when defendant had months
beforehand to interview potential witnesses and to seek
judicial orders to permit him to question witnesses who
might otherwise be unable to testify), aff’d, 291 Conn.
813, 970 A.2d 710 (2009). Here, the court had confirmed
the trial schedule with counsel so that in the course of
jury selection, it could advise the venirepersons of the
time commitment expected of them. In addition to eval-
uating the merits of the application, the court also con-
sidered that the case had been pending for five and one-
half years, and that, since the mistrial fifteen months
before, the defendant could have taken numerous steps
to secure the testimony of the witnesses.21 See footnotes
14 and 17 of this opinion. Without a more substantive
showing of materiality and necessity, and given the
timing and context of the defendant’s request, we con-
clude that the court did not abuse its discretion in
denying the applications.22
The judgment is affirmed.
In this opinion the other judges concurred.
1
For example, according to the SPIN reports submitted by the defendant,
the defendant reported her salary to be $49,536.19 in 2006, $47,205.36 in
2007, $56,356.90 in 2008, $56,659.67 in 2009, and $43,411.71 in 2010. However,
Paychex records of the defendant’s compensation indicated that the actual
compensation that she received was $109,202.27 in 2006, $141,715.42 in 2007,
$131,989.89 in 2008, $188,809.47 in 2009, and $78,953.44 in 2010. Simmons and
Lajoie testified at trial that the maximum salary a person in the defendant’s
position was permitted to receive from 2006 to 2010, was $57,000 annually.
2
After transcribing the defendant’s statement, Buglione gave the defen-
dant an opportunity to review the statement and to cross out any spelling
errors or make any revisions. For those instances in which the defendant
amended the statement, Buglione had the defendant mark her initials next to
the cross outs to verify that she was the one making changes to the statement.
3
General Statutes § 53a-122 (a) provides in relevant part: ‘‘A person is
guilty of larceny in the first degree when he commits larceny, as defined
in section 53a-119, and . . . (2) the value of the property or service exceeds
twenty thousand dollars . . . .’’
Larceny in the first degree is a class B felony. See General Statutes § 53a-
122 (c).
4
The defendant initially filed a self-represented brief claiming that the
court improperly denied her motion to suppress the signed statement she
gave to the detectives and that the evidence was insufficient to sustain
her conviction. On July 8, 2019, the defendant’s newly appointed appellate
counsel filed a motion with this court for permission to file a substitute
brief on the ground that the defendant’s self-represented brief inadequately
set forth the defendant’s claims. This court denied that request but, sua
sponte, permitted the defendant to file a late reply brief and/or supplemental
brief. The court also permitted the state to file a supplemental appellee
brief in the event that the defendant filed a supplemental brief. On October
22, 2019, the defendant filed a supplemental brief raising the issues before
us. At oral argument before this court, the defendant’s appellate counsel
withdrew both pro se claims. Accordingly, we need not consider them.
5
Alternatively, the state argues that, (1) the defendant’s hearsay claim
was unreviewable because the defendant’s objection at trial pertained to
authenticity, not hearsay, and (2) the defendant cannot establish that the
admission of the SPIN reports was harmful error due to the admission of
the defendant’s confession, which explicitly specified how much she stole
from her employer. Because we agree with the state that the court properly
admitted the defendant’s SPIN reports, we need not consider those
arguments.
6
Exhibit J was a spreadsheet showing the fiscal year 2010 budget for the
chapter. The court permitted the state to voir dire the defendant, who
acknowledged that, although the spreadsheet showed the total salaries paid
out to the entire American Red Cross, it did not show individual salaries.
For example, the spreadsheet does not identify how much Simmons was
paid. When the voir dire concluded, the state objected to the spreadsheet
as irrelevant because ‘‘[i]t doesn’t go to . . . individual salaries.’’ The court
sustained the objection, stating: ‘‘It’s not relevant to what this jury has to
decide . . . .’’
Exhibit K was a spreadsheet of the proposed 2010 budget for the chapter,
which contained a line item for total salaries for 2009 and total salaries
budgeted for 2010. During voir dire, the defendant acknowledged that this
spreadsheet included only total salaries, not individual salaries and, thus,
would not show the defendant’s salary for that year. The state again objected
on relevance grounds, and the court sustained the objection, stating: ‘‘It’s
not relevant to what this jury has to decide, the overall gross budget for
that chapter.’’
Exhibit L was a spreadsheet for the 2010 budget for the chapter that was
submitted to national. The state objected to the relevance of that spreadsheet
because, like exhibits J and K, exhibit L provided only total salaries for
the chapter and did not contain individual salaries. The court sustained
the objection.
Exhibit P was a consolidated income statement for the twelve month
period ending June 30, 2010, that contained a line item for total salaries for
the chapter. The state raised a relevance objection, which the court sus-
tained.
Exhibit Q was the June 30, 2010 audit report for the chapter. Like the
previous defense exhibits, that document did not contain the defendant’s
individual salary. The court sustained the state’s objection to that audit
report.
7
Niland served on the chapter’s board of directors and its finance commit-
tee from 1999 until approximately 2005. The defendant called Niland as a
witness at trial. She testified on direct examination that, as a member of the
finance committee, she maintained a binder of income statements, financial
reports, budgets, and any other documents she received from finance com-
mittee meetings. According to Niland, she shredded those documents some-
time after she was no longer on the finance committee.
Thereafter, the defendant called Simmons as a witness and questioned
Simmons about an American Red Cross function in the fall of 2013 (a ‘‘Red
Cross revisit’’) that Simmons had attended with Niland. The defendant asked
Simmons if Niland had anything in her possession. The state objected to
that line of questioning, stating that the defense ‘‘seem[ed] to be asking
questions with regard to [Simmons] to impeach . . . Niland.’’ The state
argued that such questioning was improper and immaterial. The court agreed
and sustained the state’s objection.
8
The defendant asserts that the court’s decision to sustain various objec-
tions by the state was a violation of her constitutional right to a complete
defense. The defendant did not preserve that claim at trial and now requests
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). Because her claims are evidentiary, and not constitutional, in nature,
that request is unavailing. See State v. Golding, supra, 240–41 (‘‘Patently
nonconstitutional claims that are unpreserved at trial do not warrant special
consideration simply because they bear a constitutional label. . . . For
example, once identified, unpreserved evidentiary claims masquerading as
constitutional claims will be summarily dismissed.’’ (Citations omitted.)).
9
The defendant first challenges the denial of her request to subpoena
Rhoa, the chief financial officer for the American Red Cross, who resided
in Washington, D.C. According to the application filed by the defendant,
Rhoa signed an Internal Revenue Service form 990 for the 2011–2012 tax
year on February 13, 2014. In an accompanying schedule O supplemental
information form, Rhoa described the circumstances surrounding the defen-
dant’s embezzlement. The defendant alleged initially that the Rhoa’s testi-
mony was material and necessary to establish that the defendant was an
employee of the American Red Cross. At trial, defense counsel elaborated
that the reason Rhoa’s testimony was material and necessary was because
he ‘‘indicate[d] [in the schedule O] that the chapter removed the executive
director and finances are monitored by the division vice president in [nation-
al’s] headquarters.’’ Thus, because Simmons previously testified that she
retired after twenty-nine years, the defendant wanted to offer Rhoa’s testi-
mony to establish that Simmons’ employment was terminated by the Red
Cross and that she did not leave voluntarily. The court denied the request
to subpoena Rhoa, finding that the defendant did not meet her burden of
showing that the statement was material and necessary. However, the court
advised the defendant that its ruling did not preclude her from filing a
motion to admit the Internal Revenue Service statement as a business record.
10
The defendant next claims that the court improperly denied her request
to subpoena Brownley, a corporate claim manager in risk management at
the American Red Cross. Brownley also resided in Washington, D.C. In her
application, the defendant stated that Brownley was a material and necessary
witness ‘‘because he was . . . the claims manager assigned to the defen-
dant’s matter’’ who could testify as to ‘‘[t]he insurance policy in effect at
the time of the incident in the information,’’ ‘‘[t]he deductible on the [Ameri-
can Red Cross’] insurance policy,’’ ‘‘[a]ll amounts paid to the [American
Red Cross] by insurance,’’ ‘‘[a]ll documents submitted or received by the
[American Red Cross] regarding this claim,’’ and ‘‘[t]he content of e-mail[s]
sent and received in the ordinary course of business by this witness . . . .’’
At trial, the court questioned defense counsel concerning the relevance
of such testimony:
‘‘The Court: How is that relevant to what this jury has to decide? Whether
there’s any insurance coverage or not is not relevant, to my understanding.
I mean, it might be relevant in terms of, if, per chance, this jury made a
guilty finding, as far as a potential disposition with whether a policy paid
X amount . . . for restitution purposes. But that’s not relevant for a jury
to hear unless there’s something else you want to add.
‘‘[Defense Counsel]: There is. . . . I understand what the court is saying
and anticipated that. But my point was that, in conversations between
[Brownley] and the insurance carrier . . . there was discussion about . . .
what was the actual loss, does anybody know her salary, can we find her
salary, where is it. And, so, it was the same kind of discussion that’s already
come into evidence in this case a little bit. And . . .
‘‘The Court: . . . You have challenged appropriately in your cross-exami-
nation the salary . . . and the jury is going to make a decision on that. So,
I don’t know what Brownley would add to that discussion . . . that’s any
different as far as the salary of [the defendant]. I mean, in other words, that
that’s [not] material and necessary for somebody who resides in [Washing-
ton, D.C.] unless there’s something else on there that I’m not.
‘‘[Defense Counsel]: No. It would—it would focus on that.
‘‘The Court: I’m going to deny the request for that individual.’’
11
The defendant’s third subpoena request was for Shearer, vice president
of Human Resource Enterprise Services at the American Red Cross. Shearer
also resided in Washington, D.C. The defendant claimed that Shearer was
a material and necessary witness because she was ‘‘Chief Investigator Frank
Favilla’s superior, who was an integral part of the [American Red Cross’]
investigation into the actions’’ of the defendant. The defendant thus argued
that Shearer could testify ‘‘[t]hat the [d]efendant was an employee of [the]
Red Cross,’’ and that Shearer could provide ‘‘[a]ll notes, documents, memo-
randums, communications, forensic accounting records of the investigation
conducted by the [American Red Cross] regarding the defendant, including,
but not limited to, all communications with . . . Favilla,’’ and ‘‘[t]he content
of e-mails sent and received in the ordinary course of the business by
[Shearer] . . . .’’
From the outset, the court was skeptical of the necessity of Shearer’s
testimony and the document requests:
‘‘The Court: ‘‘You know, my understanding, and based on my involvement
in this trial so far, is that [the state] . . . basically, has an open file policy.
My understanding is, they’ve given you all the documents relevant that
you’ve requested. . . . So, is some of this duplicates of what has already
been done here?’’
Defense counsel then made the following offer of proof as to why she
believed Shearer’s testimony and the document requests were material
and necessary:
‘‘[Defense Counsel]: [M]y understanding from e-mails that I obtained from
. . . Favilla last year is that [Shearer] was the source of the SPIN informa-
tion. She was the one that was responsible for sending it to Rebecca C.
Williams, who was an assistant for [Favilla], who then sent it to [Lajoie].
So, [Shearer] would be, my understanding, the source of the SPIN informa-
tion and be able to say how it was—if that is, in fact, the SPIN information.
‘‘The Court: But, as a practical matter, how—if I agreed with your position
that this is material and necessary information for this jury to hear, how
are you going to have [Shearer] in a few days—
‘‘[Defense Counsel]: I know.
‘‘The Court: —based on the protection that the statute affords a potential
witness? I mean, you know, you tell me. I mean, the statute—
‘‘[Defense Counsel]: I mean, she may—she may agree to come. I mean—
‘‘The Court: I have . . . no problem with that.
‘‘[Defense Counsel]: Right.
‘‘The Court: No problem with that. I mean, you could call her as soon as
we adjourn today. I mean, there’s no prohibition on that . . . . And, you
know, maybe all these people will agree to come. But you’re asking me,
pursuant to statute, to make a finding that their proposed testimony is
material and necessary . . . . I think we’re all in agreement with what that
entails, going to a circuit court or a superior court down in—most of these
are in [Washington, D.C.], some of these are in Virginia, where, you know,
a notice is sent, summons is sent for somebody to come a few weeks down
the road. Then, that judge has to make an independent finding. You know,
we’ve [reviewed] the dates of this case before. This case is not going to be
delayed, and I think you’ll agree with that. So, you know, there’s nothing
wrong with you contacting her in ten minutes; maybe she’ll come on up.
So, I’m going to—what you’ve presented to me—I make a finding there’s
nothing material and necessary that is needed for this particular client.’’
12
The fourth application at issue was the request to subpoena Favilla, an
investigation officer at the American Red Cross who resided in New York.
The defendant argued that Favilla was a material and necessary witness
because ‘‘he [was] an investigator of the alleged larceny of which the defen-
dant is accused’’ who could testify that ‘‘the defendant was an employee of
[the] Red Cross,’’ and the defendant also sought ‘‘[a]ll notes, documents,
memorandums, communications, forensic accounting records of the investi-
gation conducted by the [American Red Cross] regarding the defendant,’’
‘‘[i]nformation contained in a binder referenced in [an] e-mail dated Tuesday,
August 16, 2011, at 2:07 p.m.,’’ and ‘‘[a]ll e-mails sent and received by this
witness in the course of his duties . . . .’’ The court disagreed that any of
the testimony or records sought were material and necessary, and denied
the subpoena request.
13
The defendant’s final subpoena request sought to secure the attendance
of Brewer, vice president of the Office of Investigations, Compliance and
Ethics at the American Red Cross, who resided in Washington, D.C. The
defendant claimed that Brewer was a material and necessary witness
because she was Favilla’s ‘‘superior who was an integral part of the [Ameri-
can Red Cross’] investigation into the actions of [the defendant].’’ The defen-
dant further argued that Brewer could testify ‘‘[t]hat the defendant was
an employee of [the] Red Cross’’ and that she could provide ‘‘[a]ll notes,
documents, memorandums, communications, forensic accounting records
of the investigation conducted by the [American Red Cross] regarding the
defendant, including, but not limited to, all communications with [Favilla],’’
‘‘Frank Aiello, senior director, Information Security,’’ and ‘‘Rebecca C. Wil-
liams, senior director Office of Investigations, Compliance and Ethics
. . . .’’ Finally, the defendant claimed that Brewer could testify as to ‘‘[t]he
content[s] of e-mail[s] [that Brewer] sent and received in the ordinary course
of the business . . . .’’
At trial, the court asked defense counsel why obtaining e-mails from
Brewer was necessary, and the following colloquy transpired:
‘‘The Court: Now, on these e-mails, you have these e-mails on [Brewer],
right, a lot of them? . . .
‘‘[Defense Counsel]: Yeah.’’
Accordingly, the court denied the application for Brewer’s testimony.
14
The defendant’s first trial ended in a mistrial because new information
in the form of undisclosed e-mails between American Red Cross employees
required a delay in the proceedings. The court made specific findings on
the record that the mistrial was through no fault of the state or the defendant.
15
Practice Book § 40-44 provides: ‘‘In any case involving an offense for
which the punishment may be imprisonment for more than one year the
judicial authority, upon request of any party, may issue a subpoena for the
appearance of any person at a designated time and place to give his or her
deposition if such person’s testimony may be required at trial and it appears
to the judicial authority that such person:
‘‘(1) Will, because of physical or mental illness or infirmity, be unable to
be present to testify at any trial or hearing; or
‘‘(2) Resides outside of this state, and his or her presence cannot be
compelled under the provisions of General Statutes § 54-82i; or
‘‘(3) Will otherwise be unable to be present to testify at any trial or
hearing; or
‘‘(4) Is an expert who has examined a defendant pursuant to Sections 40-
17 through 40-19 and has failed to file a written report as provided by
such sections.’’
16
A plain reading of the text of § 54-82i (c) indicates that the court must
find only that an out-of-state witness is a material witness in order to trigger
the processes pursuant to its provisions; it does not require a showing
that the witness is necessary. In reliance upon such representations by the
defendant, the court may ‘‘issue a certificate under seal of the court, stating
such facts and specifying the number of days the witness will be required.’’
General Statutes § 54-82i (c). By contrast, the court of the sending state, as
a signatory to the Uniform Act, must determine whether a person who is
the subject of the certificate is a material and necessary witness, relying,
in part, on the representations in the certificate of the issuing court as
‘‘prima facie evidence . . . .’’ D.C. Code § 23-1502 (b) (2001). To illustrate,
§ 54-82i (b), which applies when this state is the sending state under the
Uniform Act and is nearly identical to the provisions of the Uniform Act in
the jurisdictions that have adopted it, provides in relevant part that ‘‘such
judge shall fix a time and place for a hearing and shall make an order
directing the witness to appear at such time and place for such hearing. If,
at such hearing, the judge determines that the witness is material and neces-
sary, that it will not cause undue hardship to the witness to be compelled
to attend and testify in the prosecution . . . the judge shall issue a sum-
mons, with a copy of the certificate attached, directing the witness to attend
and testify in the court where the prosecution is pending . . . at a time
and place specified in the summons. At any such hearing, the certificate
shall be prima facie evidence of all the facts stated therein. . . .’’ General
Statutes § 54-82i (b).
In the present case, the defendant has maintained in her applications, in
her argument to the court and on appeal to this court that the legal standard
is materiality and necessity. This appears to be a fair interpretation of the
burden the defendant must ultimately demonstrate because the certificate
on which the sending court relies for prima facie evidence in support of its
ultimate conclusions is generated by the issuing court. Indeed, the record
reflects that, in arguing that each of the proposed witnesses was material
and necessary, the defendant submitted applications that specifically cited
to this state’s provisions of the Uniform Act and the provisions of the
respective sending jurisdictions. In addition, the defendant drafted the certif-
icates with a representation that each respective witness was a material
and necessary witness in the proceeding to which the court, upon approval,
would have to attest under seal of the court.
Therefore, although the trial court, in order to trigger the procedures
pursuant to § 54-82i (c), is required to determine only that a witness is
material, and then represent the factual basis for its finding in the issuing
certificate conveyed to the sending state, we agree with the defendant that
consideration of whether a witness is necessary comes within the ambit of
the court’s discretion. Because a successful application will ultimately
require the court of the sending state to make a finding, inter alia, of necessity
as well as materiality, the issuing court’s independent inquiry as to whether
the witness is necessary is not unreasonable or inappropriate in order to
assure itself that (1) the process is not a futile exercise, and (2) any facts
supporting the necessity of a given witness be included in the certificate
for review by the sending state. Cf. Davenport v. State, 289 Ga. 399, 406–407,
711 S.E.2d 699 (2011) (Hines, J., dissenting) (In challenging the majority
opinion’s holding that the issuing court is limited toa finding of materiality,
the dissent observed that, ‘‘even assuming arguendo that a showing of ‘neces-
sity and materiality’ is different and a greater burden than that of solely
‘materiality,’ it defies logic and flies in the face of judicial economy that the
[legislature] intended that the threshold showing . . . be lesser than that
before the court in the foreign jurisdiction. To find otherwise permits a
petitioner to utilize the judicial time and resources of two jurisdictions when
the petitioner cannot initially prevail, and allows ‘necessity’ to be decided
solely by a court other than the one faced with the trial of the case.’’).
17
The court’s inquiry was particularly apt because, as the defendant
acknowledged, fifteen months had elapsed since the mistrial in the case
due to numerous late disclosed documents and e-mails by the American
Red Cross. See footnote 14 of this opinion. Under such circumstances, the
usual purpose of a mistrial and continuance is to mitigate the prejudice to
the defendant and to allow her the opportunity to prepare for trial, including
engaging in additional discovery as necessary. The court’s query thus follows
naturally from the defendant’s applications, which, in our view, are more
akin to discovery requests than representations of how each witness is
material and necessary to the defense.
18
The court observed that such hearings require notice and summons for
a hearing to be scheduled potentially weeks later, and it also referenced
the statutory protections afforded to potential witnesses. Specifically, the
provisions of § 54-82i (b) require that the sending court determine that the
witness is material and necessary, and also that it will not cause undue
hardship to the witness to be compelled to attend and to testify.
19
See also State v. Rivera, 268 Conn. 351, 379, 844 A.2d 191 (2004)
(‘‘[a]lthough resistant to precise cataloguing, such factors revolve around
the circumstances before the trial court at the time it rendered its decision,
including: the timeliness of the request for continuance; the likely length of
the delay; the age and complexity of the case; the granting of other continu-
ances in the past; the impact of delay on the litigants, witnesses, opposing
counsel and the court; the perceived legitimacy of the reasons proffered in
support of the request; [and] the defendant’s personal responsibility for the
timing of the request’’ (internal quotation marks omitted)); State v. Bethea,
167 Conn. 80, 86, 355 A.2d 6 (1974) (trial court did not abuse its discretion
in denial of motion for continuance when defendant made no showing of
good faith and diligence in attempting to find alibi witnesses during five
months between his arrest and trial).
20
See State v. Godbolt, supra, 161 Conn. App. 376 (‘‘The trial court has
the responsibility to avoid unnecessary interruptions, to maintain the orderly
procedure of the court docket, and to prevent any interference with the fair
administration of justice. . . . Once a trial has begun . . . a defendant’s
right to due process . . . [does not entitle] him to a continuance upon
demand.’’ (Internal quotation marks omitted.)).
21
On May 12, 2017, the court stated that, since the mistrial, counsel could
have ‘‘contacted [the witness] at any time . . . sent [her] investigator . . .
[taken] a deposition . . . or [she] could . . . contact him [that] afternoon.’’
Although the court would not delay the trial, the court also repeatedly stated
that the defendant was free to contact the witnesses to determine their
willingness and availability to testify. See footnote 11 of this opinion.
22
The defendant also claims that the court violated her constitutional
right to present a defense under the sixth amendment to the United States
constitution by denying her applications to subpoena out-of-state witnesses.
Having failed to preserve that constitutional claim at trial, the defendant
requests review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823
(1989). 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 demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Emphasis in original; footnote omit-
ted.) State v. Golding, supra, 239–40, as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015).
Aside from a cursory reference to Golding, the defendant has failed to
engage in an analysis of the four prongs of Golding. Because we conclude
that this claim is inadequately briefed, we consider it abandoned. See, e.g.,
State v. Tierinni, 144 Conn. App. 232, 238, 71 A.3d 675 (‘‘It is well established
that . . . this court will not review claims that were not properly preserved
in the trial court. . . . [A] defendant’s failure to address the four prongs of
Golding amounts to an inadequate briefing of the issue and results in the
unpreserved claim being abandoned.’’ (Internal quotation marks omitted.)),
cert. denied, 310 Conn. 911, 76 A.3d 627 (2013).