State v. Rivera, 129 Conn. App. 619

April 1, 2008, the victim was assaulted at a Danbury gas station by individuals in a white Blazer; five occupants were detained during a felony stop, including the defendant.
The ICOP recording from the stop captured the scene; the victim later allegedly identified the defendant as his attacker, a statement later excluded as hearsay under Crawford.
Prior to trial, the victim was unavailable to testify; the State sought to admit identification testimony; the court deferred ruling pending offer of proof.
During trial, the State offered the ICOP recording in full; the court admitted it as a full exhibit, but later the court ruled the victim’s identification statement on the recording was testimonial and inadmissible for confrontation purposes.
The jury acquitted on two counts of first-degree assault, found the defendant guilty of two counts of third-degree assault as an accessory and of attempted first-degree assault; the court sentenced him to 12 years, with counts merged as appropriate.
On appeal, the defendant argues (1) confrontation rights were violated by admitting the victim’s identification statement via the ICOP recording and (2) prosecutorial impropriety in closing argument by referencing the hearsay statement.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Confrontation clause and admissibility of victim identification	Rivera identifies Crawford violation due to testimonial victim statement admitted via ICOP.	Consent to admit ICOP did not waive confrontation rights because counsel was unaware of the hearsay statement.	Waived; counsel consented to admission as a trial tactic; defense used the recording, satisfying waiver and strategy doctrine.
Prosecutorial impropriety in closing arguing about the hearsay statement	State improperly highlighted the hearsay statement during rebuttal after it had been excluded.	Prosecutor exploited the hearsay reference to influence the jury.	Not improper; ICOP was a full exhibit admitted with consent, and use of it was permissible.

State v. Golding, 213 Conn. 233 (1989) (test for unpreserved constitutional errors)
Hawkins v. Hannigan, 185 F.3d 1146 (10th Cir. 1999) (defense may waive confrontation right via stipulation if strategy justified)
United States v. Aptt, 354 F.3d 1269 (10th Cir. 2004) (stakes in waiver as trial tactic; ties to Strickland analysis)
United States v. Stephens, 609 F.2d 230 (5th Cir. 1980) (defense may waive confrontation right through counsel)
Wilson v. Gray, 345 F.2d 282 (9th Cir. 1965) (counsel may waive confrontation right as trial strategy)
New York v. Hill, 528 U.S. 110 (U.S. 2000) (recognizes counsel can make strategic decisions on trial)
State v. Camacho, 282 Conn. 328 (2007) (evidence admitted as full exhibit remains admissible for all purposes)