***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE v. SAYLES—DISSENT
ECKER, J., dissenting. In conducting harmless error
review of a constitutional violation, it is tempting for
a reviewing court to take on the role of a thirteenth
juror by reconstructing a hypothetical trial at which
the tainted evidence was not admitted and then asking
whether the properly admitted evidence is so strong
that the court can be confident that it establishes the
defendant’s guilt beyond a reasonable doubt. Our case
law teaches that we must avoid this temptation because
the inquiry asks and answers the wrong question. The
correct question is whether there is a reasonable possi-
bility that the improperly admitted evidence had a ten-
dency to influence the judgment of the particular jury
in the case before us. ‘‘The inquiry, in other words, is
not whether, in a trial that occurred without the error,
a guilty verdict would surely have been [returned], but
whether the guilty verdict actually [returned] in this
trial was surely unattributable to the error.’’ (Emphasis
in original.) Sullivan v. Louisiana, 508 U.S. 275, 279,
113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). In my view we
can only answer that question ‘‘no’’ in the present case.
The state has not come close to providing the level
of assurance required to find the alleged constitutional
error harmless beyond a reasonable doubt. I base my
conclusion principally on the lack of physical evidence
connecting the defendant, Dwayne Sayles, to the
charged crimes, the kind and quality of the state’s cir-
cumstantial evidence, the highly inculpatory nature of
some of the tainted evidence procured from the defen-
dant’s cell phone in presumptive violation of the prophy-
lactic rules created by Miranda v. Arizona, 384 U.S.
436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and
Edwards v. Arizona, 451 U.S. 477, 483–85, 101 S. Ct.
1880, 68 L. Ed. 2d 378 (1981), and the prosecutor’s heavy
reliance at trial on that tainted evidence to persuade
the jury of the defendant’s guilt. As a result, I believe
that we must reach the constitutional issues certified
by this court and briefed and argued by the parties
on appeal.1
I
LEGAL PRINCIPLES GOVERNING HARMLESS
ERROR REVIEW
The error that we are presuming is of constitutional
magnitude. This means that the process by which the
defendant was convicted and sentenced to eighty years
of incarceration violated our most fundamental norms
of justice. Under these circumstances, the burden prop-
erly falls on the state to demonstrate that the error,
despite its grave nature, nonetheless did not possibly
affect the jury’s verdict and, therefore, was harmless
beyond a reasonable doubt. This standard is ‘‘demanding
. . . .’’ State v. Mangual, 311 Conn. 182, 212, 85 A.3d
627 (2014). ‘‘[W]e must examine the impact of the evi-
dence on the trier of fact and the result of the trial. . . .
If the evidence may have had a tendency to influence
the judgment of the jury, it cannot be considered harm-
less. . . . That determination must be made in light of
the entire record [including the strength of the state’s
case without the evidence admitted in error].’’ (Internal
quotation marks omitted.) Id., 214–15.
Harmless error review analyzes the impact of the
constitutional error on the result of the trial, rather than
on whether the jury arrived at a correct finding of guilt,
because the United States constitution guarantees every
defendant the right to a trial by the actual jury convened
to hear the evidence. A criminal conviction cannot be
based on the verdict of a hypothetical jury. The doctrine
governing constitutional harmless error review is
designed with this precise principle in mind. The leading
case remains Chapman v. California, 386 U.S. 18, 87
S. Ct. 824, 17 L. Ed. 2d 705 (1967), which, as construed
by the United States Supreme Court, prescribes the
required analysis: ‘‘Consistent with the [jury trial] guar-
antee, the question [that Chapman] instructs the reviewing
court to consider is not what effect the constitutional
error might generally be expected to have [on] a reason-
able jury, but rather what effect it had [on] the guilty
verdict in the case at hand. . . . [Harmless error]
review looks, [the United States Supreme Court has]
said, to the basis on which the jury actually rested its
verdict. . . . The inquiry, in other words, is not
whether, in a trial that occurred without the error, a
guilty verdict would surely have been [returned], but
whether the guilty verdict actually [returned] in this
trial was surely unattributable to the error.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Sullivan v. Louisiana, supra, 508 U.S. 279.
Thus, ‘‘[t]he [harmless error] inquiry cannot be merely
whether there was enough to support the result, apart
from the phase affected by the error. It is rather, even
so, whether the error itself had substantial influence.
If so, or if one is left in grave doubt, the conviction
cannot stand.’’ Kotteakos v. United States, 328 U.S. 750,
765, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946); see also State
v. Mangual, supra, 311 Conn. 214 (‘‘[W]e must examine
the impact of the evidence on the trier of fact and the
result of the trial. . . . If the evidence may have had
a tendency to influence the judgment of the jury, it
cannot be considered harmless.’’ (Internal quotation
marks omitted.)).
It follows that harmless error review is not the same
as sufficiency of the evidence review. See, e.g., Fahy
v. Connecticut, 375 U.S. 85, 86–87, 84 S. Ct. 229, 11 L.
Ed. 2d 171 (1963) (‘‘We are not concerned . . . with
whether there was sufficient evidence on which the
petitioner could have been convicted without the evi-
dence complained of. The question is whether there is
a reasonable possibility that the evidence complained
of might have contributed to the conviction.’’); State v.
Bruno, 197 Conn. 326, 336, 497 A.2d 758 (1985) (Shea,
J., concurring) (‘‘Legal sufficiency of the evidence is
not the test for harmless error even if only a nonconsti-
tutional error is involved. The harmlessness of an error
depends [on] its impact on the trier and the result
. . . .’’), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90
L. Ed. 2d 181 (1986); see also State v. Torres, 343 Conn.
208, 245, 273 A.3d 163 (2022) (Ecker, J., dissenting)
(‘‘the legal sufficiency of the evidence is not the issue,
and the . . . marshaling of evidence sufficient to sup-
port the conviction misapprehends the point of harm-
less error analysis’’).
Many courts and commentators have emphasized this
important distinction. The following words of the Flor-
ida Supreme Court summarize the point: ‘‘The test is
not a [sufficiency of the evidence], a correct result, a
not clearly wrong, a substantial evidence, a more proba-
ble than not, a clear and convincing, or even an over-
whelming evidence test. Harmless error is not a device
for the appellate court to substitute itself for the [trier
of fact] by simply weighing the evidence. The focus is
on the effect of the error on the [trier of fact]. The
question is whether there is a reasonable possibility
that the error affected the verdict. The burden to show
the error was harmless must remain on the state. If the
appellate court cannot say beyond a reasonable doubt
that the error did not affect the verdict, then the error
is by definition harmful.’’ (Emphasis omitted; internal
quotation marks omitted.) Ventura v. State, 29 So. 3d
1086, 1089–90 (Fla. 2010); see also State v. Gibson, 391
So. 2d 421, 427 (La. 1980) (‘‘[a]lthough the [harmless
error] standard requires a reviewing court to consider
the evidence in order to determine if there is a reason-
able possibility that the error had prejudicial effect, it
does not permit a court to substitute for the verdict its
judgment of what the jury would or should have decided
in the absence of error’’); State v. Alvarez-Lopez, 136
N.M. 309, 319–320, 98 P.3d 699 (2004) (‘‘[C]onstitutional
error cannot be deemed harmless simply because there
is overwhelming evidence of the defendant’s guilt. Our
focus must remain squarely on assessing the likely
impact of the error on the jury’s verdict.’’), cert. denied,
543 U.S. 1177, 125 S. Ct. 1334, 161 L. Ed. 2d 162 (2005).
In sum, the proper standard to determine whether a
constitutional error is harmless does not, as the major-
ity states, assess whether the result of the trial would
have been the same without the admission of the pre-
sumptively improper evidence. The correct inquiry,
rather, is whether we are assured beyond a reasonable
doubt that the result of the trial would have been the
same despite the admission of the presumptively
improper evidence. The distinction between these two
formulations is subtle but important. The former inquiry
incorrectly focuses on the properly admitted evidence
and the correctness of the jury’s verdict, whereas the
latter inquiry correctly focuses on the improperly admit-
ted evidence and its likely impact on the jury’s verdict.
II
THE TAINTED EVIDENCE AND THE STATE’S
RELIANCE ON IT
The majority accurately recounts the facts that the
jury reasonably could have found, and I will not repeat
those facts at any length here. I consider the majority’s
legal analysis flawed because it alternatively under-
states or altogether overlooks the full extent of the
tainted evidence and the prosecutor’s heavy reliance
on that evidence at trial. The proper analysis must begin
by examining more closely the evidence extracted from
the defendant’s cell phone, the fruits of that evidence,2
and the manner in which the prosecutor emphasized
all of the presumptively inadmissible evidence during
closing and rebuttal arguments to support an inference
of guilt.
The most damaging tainted evidence is the text mes-
sages extracted from the defendant’s cell phone. Eman-
uel Hatzikostas, a digital forensic examiner with the
computer analysis response team at the Federal Bureau
of Investigation (FBI), testified about these text mes-
sages. According to Hatzikostas, at 3:55 a.m. on April
15, 2015, the date on which the search warrant for
the residence of the defendant’s mother was executed
during the early morning hours, someone texted the
defendant, ‘‘[d]o not come here.’’ Approximately three
hours later, at 7:48 a.m., someone texted the defendant,
‘‘M sai call his [s]hit now.’’ On that same date, the defen-
dant drafted the following text message, which was
never sent, to an unknown recipient: ‘‘If I get locked
up tell sheema put them shits in the river some where
worda loc.’’ It should come as no surprise that the
content and meaning of these text messages became a
focal point of the state’s case.
The text messages are central to the harmlessness
analysis, and I will return to them shortly, but it is
important to understand at the outset that those mes-
sages were by no means the only presumptively inad-
missible evidence extracted from the defendant’s cell
phone and presented to the jury. Multiple screenshots
of a news article regarding the murder and robbery also
were admitted into evidence. Specifically, the jury heard
that, following the search of his mother’s residence on
April 15, 2015, the defendant searched the news feed of
WTNH, a local New Haven news station, for information
regarding the crimes for which he was on trial. On that
same date, the defendant also accessed a news article
on Instagram pertaining to the crimes. This tainted evi-
dence, largely unexamined by the majority, was relied
on extensively by the prosecutor during closing and
rebuttal arguments to buttress the state’s theory of guilt.
The tainted evidence also included the fact that the
name associated with the defendant’s cell phone was
‘‘Blackhead’’ and that the name associated with the
Instagram account on the defendant’s cell phone was
‘‘Black Hoodie,’’ consistent with the testimony of the
state’s witnesses, Leighton Vanderberg, Derrick Hoo-
ver, and Jeremiah Samuels, regarding the defendant’s
street names. A photograph of the defendant also was
among the tainted evidence, depicting him wearing
white sneakers, black jeans, and a shirt emblazoned
with ‘‘Born Fly As F*ck.’’ The photograph not only por-
trays the defendant as proudly transgressive, using pro-
fanity to describe his nature, but, more important,
shows him wearing the same color shoes and jeans
worn by the perpetrator of the charged crimes.3 This
is the kind of detail that can matter to a jury.
The inadmissible contents of the defendant’s cell
phone yielded additional probative evidence that the
prosecutor used at trial to establish the defendant’s
guilt.4 The unsent text message referencing ‘‘sheema’’
led the state to the defendant’s then girlfriend, Tys-
heema Barker. Douglas Jowett, an inspector in the
state’s attorney’s office, testified that he visited Barker
to ‘‘[confront] her with the text message’’ and to serve
her with a subpoena to testify at the defendant’s trial.
Jowett explained that Barker was ‘‘irate’’ and that, not
long afterward, the Department of Correction notified
Jowett that she had gone to visit the defendant at the
New Haven Correctional Center. Barker appeared at
trial pursuant to the state’s subpoena and testified
regarding her relationship with the defendant, the unsent
text message, and her visit to the defendant at the cor-
rectional center. Barker explained that she lived with
the defendant in April, 2015, and that she never saw
the defendant with any guns. Barker also testified that
she never received the unsent text message drafted on
the defendant’s cell phone and that the term ‘‘loc’’ refers
to ‘‘somebody who passed away.’’ According to Barker,
she visited the defendant for the first time since ‘‘[a]lmost
[one] year ago’’ because she was very upset that she
had been subpoenaed to testify at his criminal trial.
During that visit, she informed the defendant that she
had been asked about the unsent text message on his
cell phone, and the defendant replied: ‘‘You’re straight.
Just don’t worry. They’re going to try to get you mad.’’
The defendant also said about the unsent text message
something to the effect of, ‘‘[y]eah, fuck that shit. That
don’t mean anything . . . . You never got it. That don’t
mean anything.’’ Barker acknowledged that, afterward,
she and the defendant communicated nonverbally
through the glass separating them during their noncon-
tact visit so that a portion of their conversation would
not be recorded by the Department of Correction. The
testimony of Jowett and Barker was fruit of the pre-
sumed constitutional violation, and, as set forth in detail
in this opinion, the prosecutor relied on it extensively
in closing argument to urge the jury to find that the
‘‘sheema’’ referred to in the unsent text message was
Barker and that the ‘‘shits’’ was the gun used in the
commission of the crimes with which the defendant
was charged.
The state relied heavily on the tainted evidence to
prove its case in a manner significantly more extensive
and rhetorically persuasive than acknowledged by the
majority. The prosecutor used the contents of the defen-
dant’s cell phone and the fruits of those contents during
closing and rebuttal arguments not only to demonstrate
the defendant’s participation in the commission of the
crimes but also to lend credibility to the disparate bits
and pieces of the state’s admissible evidence that either
were unsupported, uncorroborated, or inherently suspect.
The prosecutor made strong and effective use of the
most powerful piece of evidence that presumptively
was admitted in violation of the defendant’s constitu-
tional rights, namely, the unsent text message on the
defendant’s cell phone instructing his girlfriend, Barker,
to throw ‘‘them shits in the river’’ if he were arrested.
If the jury credited the prosecutor’s claim that ‘‘shits’’
meant ‘‘gun,’’ an extremely plausible interpretation, then
the unsent text message was the functional equivalent
of a confession by the defendant. The persuasive force
of this evidence was obvious, as the prosecutor point-
edly highlighted for the jury during initial closing argu-
ment: ‘‘You heard from FBI analyst . . . Hatzikostas.
. . . Hatzikostas testified that he was able to analyze
a [cell] phone belonging to the defendant. If you recall,
it had the [defendant’s] name . . . on it, Blackhead.
He was able to retrieve a series of text messages from
April 15, 2015. Now, if you recall, there is testimony
that, in the early hours of April 15, [at] approximately
3 a.m., [the] New Haven Police Department executed
a search warrant . . . [at] the defendant’s residence.
In the series of text messages that [was] presented,
there’s a text message that was received by the defen-
dant’s phone at 3:55 a.m. on April 15, 2015, that says,
‘[d]o not come here.’ There was also testimony that,
later that day, the same day, April 15, 2015, the defen-
dant and his mother went to the New Haven Police
Department to talk to detectives about why they were
at . . . his house. In the same string of text messages,
there’s a text message that . . . was not sent, although
. . . Hatzikostas said there were numerous reasons
why a text message may not be sent. Maybe [the cell
phone] lost contact with the server, but there’s a text
message that was typed on the defendant’s [cell] phone,
‘[i]f I get locked up tell sheema put them shits in the
river some where [worda loc].’’5
The prosecutor also emphasized the significance of
the unsent text message by tying the gun (the ‘‘shits’’)
allegedly referenced in that message to the testimony of
other witnesses, with the effect of providing a mutually
reinforcing narrative. The prosecutor explained to the
jury that Barker testified that ‘‘she also goes by the
name Sheema. . . . She testified that, after [one] year
of not going to visit . . . the defendant in jail, after she
was served with a subpoena by . . . Jowett . . . she
went to go visit him on January 27, 2018, a little [more
than one] week ago. She testified that she knows those
telephone calls while you’re in a face-to-face visit are
recorded. She also testified that, when they want to
talk about things that they don’t want recorded, they
put the phone down and talk through the glass. She
told you that she told the defendant that . . . Jowett
had come to see her and that . . . Jowett ha[d] asked
her about the text message, ‘[i]f I get locked up tell
sheema . . . put them shits in the river’ or to lie. The
defendant at that point told her not to worry.’’ The
inference was both obvious and compelling: the suspi-
cious and secretive communications between Barker
and the defendant at the correctional center were fur-
ther evidence that the unsent text message meant exactly
what the prosecutor suggested it meant.
Similarly, the prosecutor reminded the jury that there
was evidence from both Samuels and Hoover that the
defendant had stashed the gun used in the commission
of the crimes at Barker’s residence. The prosecutor
referenced Samuels’ prior inconsistent statement to the
police, which was admitted into evidence for substan-
tive purposes under State v. Whelan, 200 Conn. 743,
753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct.
597, 93 L. Ed. 2d 598 (1986), ‘‘that the defendant had a
girlfriend by the name of Tysheema, that he had a baby’s
mother by the name of Imani, and that the guns were
probably at either one of those locations.’’ The prosecu-
tor later referenced Hoover’s testimony that ‘‘[t]he
defendant told . . . Hoover that the guns were at [the
defendant’s] girlfriend’s house [and] that, after the
police raided his house, he moved them.’’ On the basis
of this testimony, the prosecutor simultaneously tied
together disparate threads of evidence and bolstered
the credibility of the jailhouse informants by implicitly
but unmistakably suggesting to the jury that the ‘‘shits’’
mentioned in the defendant’s unsent text message referred
to the gun used in the commission of the crimes, consis-
tent with the statement of Samuels and the testimony
of Hoover.
The prosecutor continued to hammer home the signif-
icance of the tainted evidence during rebuttal argument
to construct a compelling narrative of guilt. In one
instance, the prosecutor argued that ‘‘April 15 is kind
of an interesting time frame because . . . Vanderberg
goes down April 14, he gives the information to [the]
police, and then everything starts rolling. . . . The next
day, the defendant [was] on the WTNH app . . . look-
ing up the story. Pretty coincidental. And he’s looking
up this story when he’s got nothing to do with it? He’s
so concerned that he’s reading details in the afternoon
time on April 15 about this Forbes [Avenue] gas station
and homicide. . . . He got a series of texts, right? . . .
And what were those texts? . . . [H]e got the first one
right around the time the police [were] actually tossing
his house, from someone to [the defendant], ‘[d]o not
come here.’ Later that day, a text [message] that we
know was never sent, but it was drafted on that phone,
‘[i]f I get locked up tell sheema put them shits in the
river some where [worda loc].’ Shits can mean anything,
right? People are constantly throwing stuff in the river.
Does that make sense, or does it make more sense that
he keeps his gun at his girlfriend’s house? He knows
he’s going to get locked up for this offense, and he’s
desperately trying to get the word out to get rid of
those guns.’’
The prosecutor continued: ‘‘How about the conversa-
tion with Sheema? They’re talking about the text mes-
sage. She had met with . . . Jowett a couple [of] days
earlier. Of course, she hasn’t seen [the defendant] in
over [one] year, but she decides to go and pay him a
visit days before she gets on the stand. And he says,
‘[t]hat don’t mean nothing. You never got it. That don’t
mean nothing.’ He’s not worried at all. What’s he refer-
ring to? Is he referring to the guns? Is he referring
to the text message? I don’t know. It certainly shows
knowledge of something though, doesn’t it?’’
The record, in short, establishes without question
that the prosecutor’s use of the tainted evidence was
extensive, integral to the state’s theory of guilt, and
rhetorically effective.
III
HARMLESS ERROR ANALYSIS
Applying the proper standard of review, I cannot con-
clude on this record that the presumed constitutional
error is harmless beyond a reasonable doubt. The incul-
patory nature of the tainted evidence strikes me as
self-evident. The timing of the text messages and the
defendant’s searches for news articles was highly suspi-
cious because they occurred on the same day and
around the same time that his mother’s residence was
being searched for evidence of the murder and robbery
with which the defendant eventually was charged. The
jury heard that, at the time the search warrant was
executed at his mother’s residence, someone texted
the defendant ‘‘[d]o not come here.’’ Additionally, soon
thereafter, the defendant searched the WTNH news app
and Instagram for information regarding the very crimes
at issue. Even more damning is the unsent text message:
‘‘If I get locked up tell sheema put them shits in the
river some where worda loc.’’ It is irrelevant to the
analysis that this text message never was sent—the
important point is that the message reflects the defen-
dant’s own acknowledgment that he might get ‘‘locked
up,’’ i.e., arrested, presumably for the crimes for which
his mother’s residence was searched and for which he
was soon to be charged. The jury readily could have
inferred, as the prosecutor plainly argued, that the
unsent text message captures the defendant himself
acknowledging that there is inculpatory evidence of his
participation in those crimes, namely, the ‘‘shits’’ that
the defendant tells his girlfriend to throw into the river.
This is strong evidence of guilt by any standard. The
prosecutor knew that it was powerful and deployed it
accordingly. The prosecutor invited the jury to infer
that the word ‘‘shits’’ in the unsent text message referred
to the gun used in the commission of the murder and
robbery, which never was recovered. She implored the
jurors to use their common sense and to find that there
was no innocent explanation for the text: ‘‘Shits can
mean anything, right? People are constantly throwing
stuff in the river. Does that make sense, or does it make
more sense that he keeps his gun at his girlfriend’s
house? He knows he’s going to get locked up for this
offense, and he’s desperately trying to get the word out
to get rid of those guns.’’ The prosecutor expressed
even greater incredulity that there could be an innocent
explanation for the defendant’s Internet searches for
news of the crimes: ‘‘The next day, the defendant [was]
on the WTNH app . . . looking up the story. Pretty
coincidental. And he’s looking up this story when he’s
got nothing to do with it? He’s so concerned that he’s
reading details in the afternoon time on April 15, about
this Forbes [Avenue] gas station and homicide.’’ The
prosecutor also suggested to the jury that an innocent
man, one unconnected to the crimes with which the
defendant was charged, would not be instructed ‘‘[d]o
not come here’’ during the execution of a search war-
rant. These are good arguments, and I cannot imagine
being confident that they had no tendency to persuade
the jury to reach a guilty verdict.
The other evidence extracted from the defendant’s
cell phone led directly to additional inculpatory evi-
dence, which the prosecutor used to strengthen the
case against the defendant. The jury heard that the
unsent text message led the state to Barker, who, after
being confronted with the text message, visited the
defendant for the first time in approximately one year.
According to Barker, the defendant was unconcerned
about the unsent text message, purportedly saying to
Barker: ‘‘Yeah, fuck that shit. That don’t mean anything
. . . . You never got it. That don’t mean anything.’’
Through questioning and argument, the prosecutor
used the inculpatory nature of the text message to sug-
gest to the jury that Barker and the defendant continued
their cover-up when the defendant and Barker inten-
tionally communicated nonverbally so that their conver-
sation would not be overheard by the Department of
Correction: ‘‘How about the conversation with Sheema?
They’re talking about the text message. She had met
with . . . Jowett a couple [of] days earlier. Of course,
she hasn’t seen [the defendant] in over [one] year, but
she decides to go and pay him a visit days before she
gets on the stand. And he says, ‘[t]hat don’t mean noth-
ing. You never got it. That don’t mean nothing.’ He’s
not worried at all. What’s he referring to? Is he referring
to the guns? Is he referring to the text message? I don’t
know. It certainly shows knowledge of something though,
doesn’t it?’’
The prosecutor appealed to the jurors to use their
common sense and experience to find that the defen-
dant’s text messages, searches for news articles, and
conversation with Barker reflected the defendant’s guilt
and an attempt to cover up his commission of the
crimes. This would have been entirely appropriate advo-
cacy if the evidence had been admissible. See, e.g., State
v. Courtney G., 339 Conn. 328, 347, 260 A.3d 1152 (2021)
(prosecutor is permitted to ‘‘appeal to [the jurors’] com-
mon sense in closing remarks’’ (internal quotation
marks omitted)). But we are presuming in the present
appeal that the evidence was improperly admitted in
violation of the defendant’s constitutional rights, as
guaranteed by Miranda v. Arizona, supra, 384 U.S.
478–79, and Edwards v. Arizona, supra, 451 U.S. 483–
85. The prosecutor’s pointed and repeated reliance on
the tainted evidence during closing and rebuttal argu-
ments undermines the majority’s conclusion that the
admission of this evidence was harmless beyond a rea-
sonable doubt.
We previously have observed that a prosecutor’s ‘‘fre-
quent and repeated emphasis on [inadmissible evidence]
during [his or her] closing and rebuttal arguments indi-
cates that [its] admission was not harmless.’’ State v.
Culbreath, 340 Conn. 167, 195, 263 A.3d 350 (2021); see
also State v. Ayala, 333 Conn. 225, 235, 215 A.3d 116
(2019) (‘‘in evaluating harm [we] look to see how the
state used [the inadmissible] evidence in its closing
argument’’); State v. Sawyer, 279 Conn. 331, 360–61,
904 A.2d 101 (2006) (finding harm because, among other
reasons, state repeatedly emphasized improperly admit-
ted evidence during its closing argument), overruled in
part on other grounds by State v. DeJesus, 288 Conn.
418, 953 A.2d 45 (2008). Although we have not explicitly
articulated our rationale for this principle, the logic is
unmistakable. The prosecutor’s own selection of evi-
dence to use during closing and rebuttal arguments at
trial, chosen specifically for the purpose of persuading
the jury of the defendant’s guilt, is among the very best
indicators of what evidence would have had a tendency
to impact the jury’s assessment of guilt. Why, after all,
would the prosecutor repeatedly emphasize the con-
tents of the defendant’s cell phone to persuade the jury
of his guilt if that evidence was trivial, inconsequential,
equivocal, or immaterial? If we are attempting to recon-
struct what evidence reasonably was relied on by this
jury to arrive at its verdict, and if our inquiry must strive
(as much as possible) to avoid the risk of retrospective
appellate hypothesizing, I would think that the state
would have great difficulty meeting its burden of dem-
onstrating harmlessness on appeal when, as here, the
particular evidence that it now seeks to characterize
as having had no tendency to persuade the jury was,
in fact, evidence handpicked by the prosecutor pre-
cisely for its persuasive force at trial and explicitly and
repeatedly relied on by the prosecutor to convince the
jury of the defendant’s guilt.
The majority’s failure to adequately consider the
effect that the prosecutor’s heavy reliance on the improp-
erly admitted evidence likely had on the jury marks a
departure from our usual harmless error analysis. Rather
than examine what the prosecutor said and the likely
impact it had on the jury, the majority focuses on the
number of impermissible arguments in comparison to
the permissible arguments, concluding that, ‘‘[v]iewed
in context . . . the prosecutor’s focus on the unsent
text message was minimal relative to the other evidence
admitted at trial.’’
This analysis is flawed for two reasons. First, even
if I were to accept the suggestion that the harmlessness
analysis focuses on the relative quantity of references
to the tainted evidence vis-à-vis the untainted evidence,
and even if numerous references to the tainted evidence
throughout the prosecutor’s arguments could be consid-
ered insubstantial—both flatly erroneous propositions
in my view—the tainted evidence in this case was far
more extensive than just the unsent text message. It
also included all of the other evidence found on the
defendant’s cell phone and the fruits of the constitu-
tional violation, such as the defendant’s searches for
news articles regarding the crimes of conviction, the
text message sent to him when his mother’s residence
was being searched (‘‘[d]o not come here’’), and Bark-
er’s testimony about her off-the-record conversation
with the defendant regarding the unsent text message
at the correctional center. The prosecutor relied on all
of this evidence, at length, during her closing and rebut-
tal arguments. Indeed, it is fair to say that the tainted
evidence pervaded the prosecutor’s closing and rebut-
tal arguments.
Second, regardless of the number of references, when
examining the likely effect that inadmissible evidence
had on the jury, our review must be qualitative, not
quantitative. See, e.g., State v. Van Kirk, 306 Mont. 215,
224, 32 P.3d 735 (2001) (when conducting harmless
error review, appellate courts cannot ‘‘simply tally the
quantity of the admissible evidence of guilt, [but] instead
[must] evaluat[e] the qualitative impact the inadmissi-
ble evidence might have had on the finder of fact’’
(emphasis in original)). That is to say, we must examine
the quality and nature of the improperly admitted evi-
dence in relation to the other evidence adduced at trial
and carefully assess the manner in which the prosecutor
highlighted that evidence to the jury and encouraged
the jury to rely on it to find the defendant guilty. In
my view, the inculpatory nature of the inadmissible
evidence combined with the prosecutor’s pointed and
repeated references to that evidence during closing and
rebuttal arguments demonstrate why the state cannot
meet its burden of proving harmlessness beyond a rea-
sonable doubt.6
Even in the strongest of cases, it would be difficult to
conclude that such damaging evidence had no possible
tendency to affect the jury’s verdict. And this is not
the strongest of cases. There was no physical evidence
connecting the defendant to the crimes. For example,
there were no impartial eyewitnesses who identified
the defendant as a participant, there was no forensic
or DNA evidence placing the defendant at the scene of
the crimes, and there was no ballistic evidence connect-
ing the defendant to the gun used in the commission
of the crimes.
The admissible evidence of the defendant’s guilt was
derived predominantly from the testimony of convicted
felons (Vanderberg, Hoover, and Samuels), jailhouse
informants (Hoover and Samuels), and the defendant’s
accomplice (Vanderberg). Although each of these wit-
nesses implicated the defendant in the charged crimes,
they suffered from serious credibility problems and had
a powerful incentive, fueled by self-interest, to falsely
implicate the defendant in the crimes charged. See, e.g.,
State v. Jones, 337 Conn. 486, 496, 254 A.3d 239 (2020)
(Jailhouse informants have ‘‘a powerful incentive, fueled
by self-interest, to implicate falsely the accused. Conse-
quently, the testimony of such an informant . . . is
inevitably suspect.’’ (Internal quotation marks omit-
ted.)); State v. Patterson, 276 Conn. 452, 469, 886 A.2d
777 (2005) (‘‘[a]s the United States Supreme Court
observed . . . ‘[t]he use of informers, accessories,
accomplices, false friends, or any of the other betrayals
which are ‘‘dirty business’’ may raise serious questions
of credibility’ ’’), quoting On Lee v. United States, 343
U.S. 747, 757, 72 S. Ct. 967, 96 L. Ed. 1270 (1952). The
testimony of jailhouse informants and accomplices
regarding a defendant’s allegedly inculpatory admis-
sions is inherently suspect, particularly damaging, and
has a significant influence on conviction rates. See State
v. Jones, supra, 502 (‘‘false confession evidence from
informants is the leading factor associated with wrong-
ful convictions in capital cases and a major factor con-
tributing to wrongful convictions in noncapital cases’’
(emphasis in original; internal quotation marks omit-
ted); J. Neuschatz et al., ‘‘The Effects of Accomplice
Witnesses and Jailhouse Informants on Jury Decision
Making,’’ 32 Law & Hum. Behav. 137, 146 (2008) (‘‘the
presence of a secondary confession provided by a coop-
erating witness ha[s] a strong influence on conviction
rates when compared with the absence of such testi-
mony’’). For this reason, the jury in the present case
was instructed to ‘‘look with particular care at the testi-
mony of’’ these witnesses and to ‘‘scrutinize it very
carefully before . . . accept[ing] it.’’
The credibility of these witnesses plainly was important
to the state’s case, and any evidence that tended to
bolster their credibility likely would have affected the
jury’s verdict. See State v. Fernando V., 331 Conn. 201,
223–24, 202 A.3d 350 (2019) (‘‘[when] credibility is an
issue and, thus, the jury’s assessment of who is telling
the truth is critical, an error affecting the jury’s ability
to assess a [witness’] credibility is not harmless error’’
(internal quotation marks omitted)). The tainted evi-
dence did just that—it corroborated the testimony of
Vanderberg and Hoover that the defendant was involved
in the commission of the crimes charged and tended
to support their testimony that he hid the murder
weapon at the home of his girlfriend. Given ‘‘[t]he com-
monsense inference that corroborated statements tend
to be true,’’ the inadmissible evidence necessarily enhanced
the credibility of these crucial witnesses. State v. Fauci,
282 Conn. 23, 40, 917 A.2d 978 (2007).
Further compounding the harm to the defendant is
the fact that the accuracy and believability of the evi-
dence from the defendant’s cell phone—particularly the
unsent text message, ‘‘[i]f I get locked up tell sheema
put them shits in the river some where worda loc’’—
could not seriously be doubted once heard by the jury.
The jury could not easily discount this evidence as self-
serving, mistaken, or unreliable because, after all, it
came from the defendant himself. See Zappulla v. New
York, 391 F.3d 462, 473 (2d Cir. 2004) (inculpatory
admissions from defendant are ‘‘the most probative and
damaging evidence that can be admitted against him’’
because they ‘‘come from the actor himself, the most
knowledgeable and unimpeachable source of informa-
tion about his past conduct’’ (internal quotation marks
omitted)), cert. denied, 546 U.S. 957, 126 S. Ct. 472, 163
L. Ed. 2d 358 (2005). Together, the tainted evidence and
the testimony of Vanderberg, Hoover, and Samuels had
a synergistic effect, which reinforced the state’s theory
of guilt and likely affected the outcome of the jury’s
verdict.
The majority acknowledges ‘‘that the testimony of
Vanderberg and Hoover is properly viewed with some
skepticism, given their obvious self-interest in testifying
for the state as an accomplice and a jailhouse informant,
respectively,’’ but finds this evidence to be compelling
in large part because the testimony of each was corrobo-
rated by the testimony of the other and the prior incon-
sistent statement of Samuels, another jailhouse informant.
I cannot agree with the majority that the suspect testi-
mony of a jailhouse informant ‘‘grow[s] in strength con-
siderably’’ simply because it is repeated by another
jailhouse informant or accomplice. In determining whether
independent corroboration exists in the context of harm-
less error review, we must exercise care that we do
not abandon our well justified skepticism about the
untrustworthy nature of testimony provided by accom-
plices and jailhouse informants. The untrustworthy
nature of this testimony exists because these witnesses
have a powerful incentive, animated by self-interest, to
falsely implicate the defendant in the crimes charged.
I fail to understand how this powerful incentive is elimi-
nated or even reduced by the fact that multiple wit-
nesses all share the same motivation. Indeed, some
states will not even permit the testimony of accomplices
or jailhouse informants to come into evidence without
corroboration by a source other than another accom-
plice or jailhouse informant. See, e.g., State v. Harris,
405 N.W.2d 224, 227 (Minn. 1987) (‘‘[a]ccomplice testi-
mony, it is clear, may not be corroborated solely by the
testimony of another accomplice’’); People v. Ohlstein,
54 App. Div. 2d 109, 112, 387 N.Y.S. 2d 860 (1976) (‘‘[t]es-
timony of each of several accomplices is not corrobora-
tive of the other’’), aff’d, 44 N.Y.2d 896, 379 N.E.2d 222,
407 N.Y.S.2d 696 (1978); Chapman v. State, 470 S.W.2d
656, 660 (Tex. Crim. App. 1971) (‘‘it is a fundamental
principle that the testimony of one accomplice witness
cannot corroborate another accomplice witness’ testi-
mony’’); see also Schnidt v. State, 357 S.W.3d 845, 851
(Tex. App. 2012, pet. ref’d) (standard for corroboration
of accomplice and jailhouse informant testimony is
same, and one cannot corroborate the testimony of other).7
We need not go so far in the present case, which
does not involve the admissibility or sufficiency of evi-
dence but, rather, the different question of whether the
evidence demonstrates the harmlessness of the pre-
sumed constitutional error beyond a reasonable doubt.
The inherently dubious testimony of accomplices or
jailhouse informants and accomplices simply cannot
supply what the majority characterizes as ‘‘overwhelm-
ing’’ evidence of guilt; nor is it sufficiently strong to
remove the taint of the improper admission of the defen-
dant’s cell phone and its contents. To the extent that
the jury found the testimony of Vanderberg, Hoover,
and Samuels credible, I consider it most likely that they
were persuaded to believe this testimony only because
it was corroborated by the highly inculpatory contents
of the defendant’s own cell phone, which the defendant
could not explain away. This is the very definition of
harmful error.
The cell site location data, which the majority charac-
terizes as ‘‘the most powerful evidence corroborating
the testimony of Hoover and Vanderberg,’’ appears to
be fruit of the poisonous tree because the warrant used
to procure that data was based on information obtained
as a direct and proximate result of the presumed consti-
tutional violation. See footnote 4 of this opinion. Regard-
less, even if we were we to include the cell site location
data in the harmless error analysis, it did not establish
any of the essential elements of the crimes charged or
that the defendant was in the actual location of the
murder and robbery when those crimes occurred. At
most, this evidence established that the defendant was
in the general vicinity of the Forbes Avenue gas station
approximately seventeen minutes beforehand. The defen-
dant’s location at 7:33 p.m., the approximate time of
the murder and robbery, is unknown. Indeed, the cell
site location data indicate that the defendant was mov-
ing in and around the city during the one and one-half
hours between 7:00 and 8:30 p.m. At 7:15 p.m., he was
in the Long Wharf area of New Haven, but, one minute
later, at 7:16 p.m., he was across the Quinnipiac River
in the area where the gas station on Forbes Avenue
was located. More than one hour later, at 8:29 p.m., he
was again across the Quinnipiac River in the area of
New Haven where his mother’s residence was located.
His movements between 7:16 and 8:29 p.m. are unclear,
but what is clear is that the cell site location data do
not disclose the defendant’s precise location at the time
of the crimes charged. Moreover, given that the defen-
dant’s cell phone pinged on two different cell towers
in two separate areas of New Haven within less than
two minutes, it is reasonable to infer that the defendant
was moving around the city at the time and could have
traveled a considerable distance in the seventeen
minute time period between 7:16 and 7:33 p.m. It may
be equally reasonable to infer that the defendant’s
movements remained static during this time period and
that he was in the vicinity of Forbes Avenue when the
crimes occurred, but, under any scenario, the defen-
dant’s presence in the general area of the crime is hardly
powerful evidence of guilt because the imprecision of
the cell site location data and the dense population
of the city would at best make him one of countless
potential suspects.
The testimony of the impartial eyewitness, Jonathan
Gavilanes, who observed two men fleeing the scene of
the crime, does nothing to remove the doubt sur-
rounding the state’s case. Gavilanes did not identify the
defendant as one of the men and was unable to provide
a detailed description of the perpetrators, aside from
their clothing and height. As to their height, Gavilanes’
testimony was equivocal. Gavilanes, who is six feet tall,
described the perpetrators’ height as ‘‘[a]bout five feet,
seven inches [tall], almost my height.’’8 On cross-exami-
nation, Gavilanes acknowledged that there is ‘‘a big
difference between five foot, seven inches, and six feet,’’
and reiterated that the perpetrators were about his own
height—six feet. On redirect examination, Gavilanes
testified that he was ‘‘guessing’’ that the perpetrators
were about five feet, seven inches tall. Given the incon-
sistent nature of Gavilanes’ testimony and the fact that
the average height of all men is between five feet, seven
inches, and six feet tall, his description adds no strength
to the state’s case.
I likewise see no significant force added to the state’s
case by the black ski mask and gloves found in the
residence of the defendant’s mother. There was DNA
evidence indicating that the defendant was a possible
contributor—as were one out of every five other African
Americans in the population. The majority candidly
acknowledges the tenuous connection between the ski
mask and gloves and the defendant, stating that ‘‘the
DNA evidence standing alone is far from definitive . . . .
’’ I agree with that assessment. The connection between
the black ski mask and gloves and the crimes charged
is even weaker. There was nothing distinctive about
the black ski mask and gloves used in the murder and
robbery—no unique markings, patterns, or colors—to
distinguish those items from the type or color of ski
masks and gloves commonly found in a typical Connect-
icut household. There is nothing unusual or inherently
inculpatory in possessing a black ski mask and gloves.
Given Connecticut’s cold winters, countless residents
of this state have these items in their closets. Absent
some evidence connecting the black ski mask and gloves
found in the residence of the defendant’s mother with the
black ski mask and gloves used in the commission of the
crimes, I cannot conclude that this evidence constitutes
physical evidence connecting the defendant to the murder
and robbery.
For the foregoing reasons, the properly admitted evi-
dence was of a circumstantial nature and dubious or
imprecise quality that does not come close to the kind of
evidentiary showing that would remove or diminish the
harmful effect that the improperly admitted evidence
likely had on the jury’s verdict in the present case. Accord-
ingly, I cannot conclude, beyond a reasonable doubt, that
the alleged constitutional violation was harmless. I am
not any more eager than the majority to reach the constitu-
tional issues analyzed by the Appellate Court, certified by
this court, and briefed and argued by the parties on appeal,
but I do not believe that we can dispose of this case
on the ground of harmless error. The defendant has a
constitutional right to have a duly constituted jury deter-
mine his guilt on the basis of lawfully obtained evidence.
Absent waiver of this right, only a jury, not a panel of
judges, can find the defendant guilty of the crimes charged
beyond a reasonable doubt. As a result of this fundamental
mandate, when an error of constitutional magnitude
occurs at trial, the defendant is entitled to a new jury trial
unless a reviewing court can say beyond a reasonable
doubt that the error did not have a tendency to influence
the jury’s verdict. I cannot reach that conclusion on this
record, and, accordingly, I respectfully dissent.
1
We granted the defendant’s petition for certification to appeal, limited to
the following issues: (1) ‘‘Did the Appellate Court properly uphold the trial
court’s denial of the defendant’s motion to suppress the contents of his [cell
phone] in reliance on United States v. Patane, 542 U.S. 630, 124 S. Ct. 2620,
159 L. Ed. 2d 667 (2004), and State v. Mangual, 311 Conn. 182, 85 A.3d 627
(2014), when the seizure of those contents was the result of questioning after
he had invoked his Miranda rights, on the basis that a cell phone and its
stored data constitute ‘physical’ (i.e., nontestimonial) evidence that need not
be suppressed if seized as the result of a Miranda violation?’’ And (2) ‘‘[d]id
the Appellate Court properly reject the defendant’s claim that the holding in
Patane does not comport with the broader protections against compelled self-
incrimination afforded under article first, § 8, of the Connecticut constitution?’’
State v. Sayles, 336 Conn. 929, 247 A.3d 578 (2021). Additionally, we granted
the defendant permission to raise on appeal a fourth amendment claim challeng-
ing the sufficiency and particularity of the search warrant used to obtain the
contents of his cell phone pursuant to our recent decision in State v. Smith,
344 Conn. 229, 246–52, 278 A.3d 481 (2022).
2
‘‘As a general principle, the exclusionary rule bars the government from
introducing at trial evidence obtained in violation of the . . . United States
constitution. . . . The rule applies to evidence that is derived from unlawful
government conduct, which is commonly referred to as the fruit of the poisonous
tree . . . .’’ (Citation omitted; internal quotation marks omitted.) State v. Bro-
cuglio, 264 Conn. 778, 786, 826 A.2d 145 (2003).
3
The perpetrator also was wearing white sneakers and dark colored jeans.
4
It appears that the cell site location data, which were utilized by the prosecu-
tion to track the defendant’s movements on the night at issue, also are fruits
of the presumed constitutional violation. The record reflects that the search
warrant used to obtain the call detail records and cell site location information,
like the search warrant used to obtain the contents of the defendant’s cell
phone, was based on information acquired as a direct and proximate result of
the alleged violation of the defendant’s Miranda rights. Specifically, the warrant
recites that, ‘‘[o]n April 15, 2015, [the defendant] came to [p]olice [h]eadquarters
with his mother. Prior to any questioning, [the defendant] was given his Miranda
[r]ights from a New Haven Police Department Miranda [w]aiver form. [The
defendant] requested an attorney and no questioning took place. Prior to [the
defendant’s] leaving, his mother handed to [the] detectives a [cell phone that]
she said belonged to [the defendant] and provided [a certain ten digit number]
as the phone number. The phone was seized and placed in an electronic
protective bag to prevent remote erasure of data. A [s]earch and [s]eizure
[w]arrant was obtained to retrieve data from within the [cell phone] . . . .
Detectives were unable to gain access to the [cell phone] without the required
passcode.’’ Just as we are presuming in the present appeal that the defendant’s
cell phone and its contents should have been suppressed as fruits of the poison-
ous tree because the phone was obtained from the defendant’s mother as a
result of the alleged violation of the defendant’s Miranda rights, so, too, must we
presume that the defendant’s cell phone number and the information obtained
as a result of the procurement of the defendant’s cell phone number must be
suppressed because they were obtained from the defendant’s mother in the
same encounter pursuant to the same alleged Miranda violation. Because the
information provided by the defendant’s mother is the only information in the
warrant that links the defendant to the cell phone number used to generate
the cell site location data, and the record plainly reflects that it was obtained
‘‘by exploitation of [the alleged] illegality,’’ it is fruit of the poisonous tree.
(Internal quotation marks omitted.) Wong Sun v. United States, 371 U.S. 471,
488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).
The majority does not address the substance of my assertion that the cell
site location data are fruits of the presumed constitutional violation and affords
the evidence ‘‘full consideration’’ in its harmless error analysis on the ground
that the defendant abandoned any challenge to this evidence through inadequate
briefing. Footnote 8 of the majority opinion. I cannot agree for three reasons.
First, the defendant’s challenge to the cell site location data is subsumed within
and intertwined with his claim that that the evidence obtained as a result of
the violation of his Miranda rights improperly was admitted into evidence at
trial. The police obtained his cell phone and cell phone number from his mother
as the direct and proximate result of an interrogation that we presume was
illegal, and precisely the same analysis applies to both. See, e.g., Meribear
Productions, Inc. v. Frank, 340 Conn. 711, 732, 265 A.3d 870 (2021) (‘‘[w]e may
. . . review legal arguments that differ from those raised by the parties if they
are subsumed within or intertwined with arguments related to the legal claim
before the court’’ (internal quotation marks omitted)). Second, the burden is
not on the defendant to establish that the presumed constitutional violation
was harmless; the burden instead rests on the state, and the state has failed
to explain why the cell site location data can be treated any differently from
the cell phone itself in this respect. Cf. State v. Jacques, 332 Conn. 271, 294,
210 A.3d 533 (2019) (reversing defendant’s conviction because state did not
claim in its appellate brief that constitutional violation was harmless beyond
reasonable doubt). Third, the overriding question that we must answer when
conducting harmless error review, under any standard, is whether we have
confidence in the fairness and integrity of the verdict despite the error, and
answering this question requires a careful and searching review of the entire
record. See, e.g., State v. Mangual, supra, 311 Conn. 214–15. Our appellate
review must independently assess whether the state has met its heavy burden
of establishing that a constitutional error is harmless beyond a reasonable
doubt. See, e.g., State v. Alexander, 343 Conn. 495, 510, 275 A.3d 199 (2022)
(conducting ‘‘our harmless error analysis . . . on the basis of our independent
review of the record’’). This mandate does not authorize the court to ferret out
new issues unrelated to the constitutional claims raised by the defendant, but,
by the same token, I do not see how our independent assessment of the entire
record can treat evidence as untainted when it comes from the very same
poisonous tree that rendered the defendant’s cell phone and its contents inad-
missible.
5
Defense counsel also referred to the unsent text message in his closing
argument, stating, ‘‘[t]his text message [about] the shits . . . could mean any-
thing. They want you to think, oh, it was guns, right? That’s what they want
you to think. Who knows, right? It could be drugs. It could be stolen property.
It could be anything. It doesn’t have to be guns. You don’t have to believe this
because they say it. And [the unsent text message] never even gets sent.’’
6
I agree with the majority that a prosecutor’s reliance on illegally obtained
evidence in closing argument is not dispositive, but I find the cases cited by
the majority to be distinguishable because, in those cases, the tainted evidence
paled in comparison to the strength and quality of the properly admitted evi-
dence, such that we could say beyond a reasonable doubt that the result of
the trial would have been the same despite the admission of the tainted evidence
and the prosecutor’s reliance on it. See, e.g., State v. Tony M., 332 Conn. 810,
823–25, 213 A.3d 1128 (2019) (improper admission of defendant’s statement
that he tossed infant son off bridge in manner similar to ‘‘ ‘free throw’ ’’ was
harmless beyond reasonable doubt as to defendant’s intent in light of defendant’s
numerous text messages detailing his intent and testimony from multiple wit-
nesses); State v. Jordan, 314 Conn. 89, 104, 101 A.3d 179 (2014) (improper
admission of evidence of drugs found in closet was harmless beyond reasonable
doubt as to issue of intent to sell because number of pills found on defendant’s
person, combined with fact that these pills ‘‘contained identical markings to
pills [the defendant] previously had sold, [was] consistent with a drug dealer
soliciting repeat business’’). Importantly, in the cases relied on by the majority,
the remaining evidence of guilt did not derive predominantly from ‘‘[t]he use
of informers, accessories, accomplices, false friends, or any of the other betrayals
[that] are ‘dirty business’ [and] may raise serious questions of credibility.’’ On
Lee v. United States, 343 U.S. 747, 757, 72 S. Ct. 967, 96 L. Ed. 1270 (1952).
7
The majority contends that my reliance on State v. Harris, supra, 405 N.W.2d
227, People v. Ohlstein, supra, 54 App. Div. 2d 112, Chapman v. State, supra,
470 S.W.2d 660, and Schnidt v. State, supra, 357 S.W.3d 851, is misplaced
because Connecticut has not adopted a corroboration rule for the testimony
of accomplices and jailhouse informants. See footnote 10 of the majority opinion.
The majority misapprehends my point. I do not intend to suggest that indepen-
dent corroboration of accomplice and jailhouse testimony is necessary to adduce
sufficient evidence of a criminal defendant’s guilt. As I previously explained,
sufficiency of the evidence review is distinct from harmless error review, and
the two types of appellate review should not be conflated. My argument, which
the majority does not refute, is that the testimony of accomplices and jailhouse
informants is inherently suspect and, absent objectively verifiable substantiation,
is inadequate in the present case to satisfy the state’s burden of establishing that
the presumed constitutional violation is harmless beyond a reasonable doubt.
8
The defendant is five feet, seven inches tall.