STATE OF CONNECTICUT v. MIGUEL ESTRELLA
SC 17188
Supreme Court of Connecticut
Argued November 23, 2005—officially released March 21, 2006
277 Conn. 458
Sullivan, C. J., and Borden, Katz, Palmer and Zarella, Js.
The judgment is affirmed.
In this opinion the other justices concurred.
Robert J. Scheinblum, senior assistant state‘s attorney, with whom, on the brief, were Michael Dearington, state‘s attorney, and James G. Clark, senior assistant state‘s attorney, for the appellee (state).
Opinion
KATZ, J. The defendant, Miguel Estrella, was charged with murder in violation of
After a jury trial, the defendant was convicted as charged, and, thereafter, pursuant to
The record reflects the following undisputed facts and procedural history.8 At the defendant‘s hearing in probable cause,9 the state‘s key witness was Rivers, a
Rivers further testified that later that evening, he, Marrow, the defendant and two women, Sandra Rodriguez and Leslie Torres, drove in Disla‘s van to New York, where they abandoned it. Although Rivers did not know what had happened to Disla‘s body, he testified that he saw a bonfire in the backyard of the defendant‘s home, destroying what he believed to be some of Disla‘s clothing.
Rivers explained that, on the day of the robbery, there had not been any discussion of killing or robbing Disla and that he was in fact surprised when Marrow shot
At the probable cause hearing, the defendant questioned at length Rivers’ ability to see what actually had happened to Disla in light of the fact that, for most of the time, Rivers admitted that he was 300 yards away from Disla and had his back turned away. The defendant also explored inconsistencies between Rivers’ earlier statement to the police and his testimony at the hearing in probable cause regarding Rivers’ drug and alcohol ingestion on the day in question. Finally, the defendant introduced a written agreement between Rivers and the state in which the state had promised to recommend that, in exchange for his testimony against the defendant, the state would dispose of all the criminal cases pending against Rivers,10 to recommend to the court that Rivers be sentenced to a period of incarceration of twenty years, execution suspended after a period of five to ten years, and to ensure that Rivers and the defendant would be housed in separate correctional facilities. Rivers acknowledged that the leniency of his sentence would depend on the effectiveness of his testimony against the defendant in helping the state to attain the defendant‘s conviction.
At the time of trial, Disla‘s body had not been recovered, and, despite a thorough search of the crime scene and extensive forensic testing, there was no physical or forensic evidence to corroborate the state‘s theory
During the course of the defendant‘s case at trial, the defendant attempted to introduce into evidence a letter written to him by Rivers in which Rivers purported to recant his probable cause hearing testimony.11 The letter was postmarked June 5, 2003, and was written while the defendant was awaiting trial in this case. The state objected to admission of the letter, claiming that it was unreliable. The court excluded the letter from evidence, agreeing with the state that it was unreliable, but allowed the defendant to identify the letter for the jury as corroboration for his claim that Rivers had attempted to contact him in June, 2003. Later, when the defendant began to testify regarding whether Rivers ever had told him why he had testified to certain things at the probable cause hearing, the trial court modified its earlier decision, permitting the defendant to testify that Rivers had apologized to him for having lied in that testimony.12
As a consequence, the defendant was able to testify that, on several occasions, Rivers had recanted his probable cause hearing testimony and had apologized for having lied.13 The defendant also testified that, although he had participated in the July 21, 2000 events, he had done so under duress in response to express and implied threats from Marrow and Smith. Thereafter, the jury returned a verdict of guilty on all charges, and the trial court rendered judgment in accordance with the verdict. This appeal followed.
I
On appeal, the defendant raises two claims in relation to Rivers’ letter.14 First, he contends that, by allowing
A
The defendant concedes that he never objected at trial to the introduction into evidence of Rivers’ hearing testimony, and therefore seeks, under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), to prevail on his claim that his opportunity for cross-examination of Rivers was not constitutionally adequate.15 We conclude that the claim is reviewable, but that the defendant ultimately cannot prevail.
As an initial matter, we note that, with respect to the question of whether the circumstances under which an out-of-court statement was obtained satisfied the requirements of the confrontation clause, our review is plenary. See State v. Rivera, 268 Conn. 351, 367, 844 A.2d 191 (2004). We recently had the opportunity to address in detail what the sixth amendment to the
“Beyond [the] general evidentiary principles [requiring the trustworthiness and reliability of out-of-court statements], the state‘s use of hearsay evidence against an accused in a criminal trial is limited by the confrontation clause of the sixth amendment. In defining the specific limits of the confrontation clause, the United States Supreme Court consistently has held that the confrontation clause does not erect a per se bar to the admission of hearsay statements against criminal defendants. E.g., Idaho v. Wright, 497 U.S. 805, 813, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990); see also id., 814 ([w]hile a literal interpretation of the [c]onfrontation [c]lause could bar the use of any out-of-court statements when the declarant is unavailable, [the] [c]ourt has rejected that view as unintended and too extreme . . . ). At the same time, [a]lthough . . . hearsay rules and the [c]onfrontation [c]lause are generally designed to protect similar values, [the court has] also been careful not to equate the [c]onfrontation [c]lause‘s prohibitions with the general rule prohibiting the admission of hearsay statements. . . . The [c]onfrontation [c]lause, in other words, bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule. . . .
“Traditionally, for purposes of the confrontation clause, all hearsay statements were admissible if (1) the declarant was unavailable to testify, and (2) the statement bore adequate indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). . . . [In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 354, 158 L. Ed. 2d 177 (2004)] however, the United States Supreme Court overruled Roberts to the extent that it applied to testimonial hearsay statements. . . . In Crawford, the court concluded that the reliability standard set forth in the second prong of the
“In so concluding, the court drew a distinction between testimonial hearsay statements and those deemed nontestimonial. Where nontestimonial hearsay is at issue, it is wholly consistent with the [f]ramers’ design to afford the [s]tates flexibility in their development of hearsay law—as does Roberts, and as would an approach that exempted such statements from [c]onfrontation [c]lause scrutiny altogether. . . . In other words, nontestimonial hearsay statements may still be admitted as evidence against an accused in a criminal trial if it satisfies both prongs of the Roberts test, irrespective of whether the defendant has had a prior opportunity to cross-examine the declarant.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Rivera, supra, 268 Conn. 361-63.
Thus, although the issue as to both testimonial and nontestimonial statements is one of reliability, the focus of the court‘s inquiry is different. Crawford v. Washington, supra, 541 U.S. 61-63. With respect to nontestimonial statements, which do not implicate the confrontation clause, the focus remains on substantive reliability and other general evidentiary concerns. With respect to testimonial statements, however, the constitution implicates an additional concern—procedural reliability, namely, whether cross-examination has provided a procedural safeguard to the right of confrontation. Id., 61 (“the [confrontation] [c]lause‘s ultimate goal
“Although the court declined to define the terms testimonial and nontestimonial, it considered three formulations of th[e] core class of testimonial statements. . . . The first formulation consists of ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially . . . . The second formulation consists of extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions . . . . Finally, the third formulation consists of statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . . . The court did not adopt any one particular formulation, noting that, [t]hese formulations all share a common nucleus and then define the [confrontation] [c]lause‘s coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition—for example, ex parte testimony at a preliminary hearing. . . . Similarly, [s]tatements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. . . . Therefore, [w]hatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the [c]onfrontation [c]lause was directed.” (Citations omitted; internal quotation marks omitted.) State v. Rivera, supra, 268 Conn. 363-64.
It is undisputed that Rivers’ invocation of his fifth amendment right to silence rendered him unavailable; State v. Munoz, 233 Conn. 106, 137, 659 A.2d 683 (1995); and, therefore, the focus of our inquiry is on the second step in the analysis. The defendant contends that his opportunity for cross-examination of Rivers at the probable cause hearing was inadequate. We disagree.
Although Crawford expanded to all testimonial statements the constitutional rule that a defendant must be afforded the right of cross-examination, that case did not portend to alter the preexisting case law as to what that right entails. See Malone v. Stewart, United States District Court, Docket No. CV-01-2099-PHX-NVW (D. Ariz. September 23, 2005) p. 14 (“[P]rior ‘in-court’ statements have never been admissible unless the defendant had adequate opportunity to cross-examine the declarant at the earlier ‘in-court’ proceeding. See Crawford [v. Washington, supra, 541 U.S. 57] [noting development of the rule in Mattox v. United States, 156 U.S. 237,
“Although it is within the trial court‘s discretion to determine the extent of cross-examination . . . the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment.” State v. Colton, 227 Conn. 231, 249, 630 A.2d 577 (1993), appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 13 L. Ed. 2d 892 (1996). “The right of confrontation is preserved [however] if defense counsel is permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Internal quotation marks omitted.) Id. “[B]y testing in the crucible of cross-examination“; Crawford v. Washington, supra, 541 U.S. 61; the testimonial evidence at issue, the defendant is afforded his sixth amendment constitutional rights.
As the defendant in the present case never objected at trial to the introduction into evidence of Rivers’ hearing
Looking to whether the defendant had a sufficient opportunity to undermine and to discredit Rivers’ testimony, we note that the defendant elicited through cross-examination that Rivers was a drug dealer and that the state had promised him that it would reduce charges against him and recommend what was essentially a minimal sentence of incarceration when compared with the gravity of the criminal charges. The defendant also elicited that Rivers never had seen the actual killing and questioned him regarding his impaired ability to see Marrow‘s actions. Finally, the defendant explored inconsistencies between Rivers’ testimony and his initial statement to the police. Indeed, no restrictions were placed on the defendant‘s ability to cross-examine Rivers at the probable cause hearing. See State v. Bryant, 71 Conn. App. 488, 493-94, 802 A.2d 224 (concluding trial court properly admitted probable cause hearing testimony when defendant was not limited in ability to cross-examine), cert. denied, 261 Conn. 939, 808 A.2d 1133 (2002). Indeed, to the extent that the defendant wanted to elicit evidence supporting his duress defense, we note that Rivers testified on cross-examination that Marrows was known as a “cold-blooded killer” whom he feared.
Measuring the defendant‘s ability to cross-examine Rivers on matters affecting his reliability and credibility
The only question remaining is whether the defendant‘s obvious inability to cross-examine Rivers regarding statements made in the letter ostensibly retracting that probable cause testimony, because that letter did not exist at the time of the hearing, undermines our conclusion that the defendant‘s opportunity to cross-examine Rivers was constitutionally adequate. We conclude that it does not. First, Crawford does not address whether evidence that did not exist at the time of the prior opportunity for cross-examination can somehow render that opportunity inadequate and therefore render the prior testimony inadmissible. Even if we were to assume without deciding that such evidence is relevant to the adequacy of the prior cross-examination, we nevertheless conclude that the letter, which we address at greater length in part I B of this opinion, did not introduce any new evidence. The letter did not provide specific details of the crime, the whereabouts of the participants or other information that previously had not been explored fully. The credibility of Rivers’ testimony was always at issue, and, as long as the defendant had the ability to scrutinize his testimony at the hearing, his constitutional rights were protected. Accordingly, “[w]e thus decline to adopt the defendant‘s position that the equivalent of significant cross-examination can take place at a preliminary hearing only when a defendant‘s opportunity to cross-examine is
The cases on which the defendant relies are not to the contrary. In those cases, subsequent to the hearing in which the challenged testimony had been given, the defendant learned of evidence demonstrating facts that could have been used to impeach the witness’ testimony, but the defendant had no basis for knowing those facts at the time of the hearing. See, e.g., People v. McCambry, 218 Ill. App. 3d 996, 1001-1002, 578 N.E.2d 1224 (1991) (defendant unaware of suggestive lineup from which accuser identified defendant at time accuser testified at preliminary hearing), cert. denied, 142 Ill. 2d 661, 584 N.E.2d 136 (1991); People v. Reed, 98 Misc. 2d 488, 488-90, 414 N.Y.S.2d 89 (1979) (defendant deprived of adequate opportunity at preliminary hearing to cross-examine person who accused him of robbery when accuser died four days before indictment was filed, victim‘s death certificate listed cause of death as chronic alcoholism and that condition was not known to defendant at time of hearing); Commonwealth v. Bazemore, 531 Pa. 582, 588-89, 591, 614 A.2d 684 (1992) (prior testimony of unavailable witness not admissible at trial when defendant unaware at time of preliminary hearing that witness accuser had made prior inconsistent statement to police, that witness had criminal record, and that district attorney was, at that time, contemplating filing criminal charges against witness for homicide and conspiracy in connection with same incident giving rise to complaint against defendant). Here, by contrast, the defendant knew better than anyone else whether Rivers was lying about the defendant‘s conduct and thus readily could have challenged his credibility even without the letter. We, therefore, conclude that the trial court properly admitted into evi-
B
The defendant next challenges the trial court‘s refusal to allow into evidence Rivers’ letter. The defendant asserts that this decision, based upon the court‘s determination that the letter was unreliable, was improper because he was not using the letter for substantive purposes, but, rather, to impeach Rivers’ probable cause testimony. Consequently, according to the defendant, the trial court deprived him of his constitutional right to confront Rivers and his due process right to a fair trial. We conclude that the letter should have been admitted into evidence as appropriate impeachment evidence of Rivers’ testimony at the probable cause hearing. “The purpose of impeaching the credibility of a hearsay declarant is merely to show that he or she talked one way at one point in time and a different way on a previous occasion, which could give rise to a doubt as to the truthfulness of both statements. See State v. Saia, 172 Conn. 37, 45, 372 A.2d 144 (1976) (witness talking one way on witness stand and another way previously raises doubt as to truthfulness of both statements); see also State v. Moales, 41 Conn. App. 817, 822, 678 A.2d 500, cert. denied, 239 Conn. 908, 682 A.2d 1011 (1996).” State v. Pare, 75 Conn. App. 474, 480, 816 A.2d 657, cert. denied, 263 Conn. 924, 823 A.2d 1216 (2003). We need not determine, however, whether the trial court‘s exclusion of the letter constituted an impropriety of constitutional magnitude, requiring the state to prove the error harmless beyond a reasonable doubt, because it is clear that the state can and indeed has more than satisfied that burden.
At trial, over the state‘s objection, the court allowed the defendant to testify that Rivers had told him, on several occasions on the telephone, that he had lied at
Significantly, we note that, although there was no physical evidence linking the defendant to the crimes, in furtherance of his theory of defense and consistent with his failure to object to the admission of Rivers’ testimony, the defendant testified to his participation in the crimes and largely corroborated the significant elements of the robbery, murder and destruction of evidence.16 Specifically, the defendant claimed that Marrow had set up the robbery, that Marrow and Smith were the ones who had decided to kill Disla and that he had participated under duress. The defendant testified that he participated in the crimes because Marrow and Smith were cold-blooded killers who impliedly had
Finally, Rodriguez also testified and corroborated the fact that the defendant had led the effort to dispose of the van, the license plate and the contents of the van. According to Rodriguez, the defendant gave orders to the other men on the way to New York and, once they arrived, removed the license plate from the van and gave the keys to three other men who then drove it away. Additionally, on the way home, the defendant stopped at a gas station, where he discarded a black garbage bag in a dumpster. In light of the overwhelming evidence of the defendant‘s guilt, the trial court‘s decision precluding the admission of Rivers’ letter into evidence, which was cumulative at best, was harmless beyond a reasonable doubt.
II
The last issue on appeal involves the tape-recorded conversations with Williams, the defendant‘s cellmate, who was deported before the defendant had knowledge of his cooperation. The record discloses the following additional facts.
In September, 2000, Williams, a legal alien and a native of Jamaica, was in federal custody for drug violations. On September 8, 2000, the defendant was arrested on an unrelated federal drug charge. Williams subsequently approached federal authorities, offering infor
In the tape recordings, which were nearly five hours in length, the defendant portrayed himself as a leader and active participant in Disla‘s murder. He told Williams that he had plotted the murder in order to gain respect from Disla, who had been cheating him in their drug dealings. The defendant set up the meeting at Dairy Queen expecting Marrow and Rivers to rob Disla. He did not want there to be any bloodshed, but, when Marrow shot Disla “for fun,” the defendant instructed Rivers and Marrow to follow him to Smith‘s house, where the defendant told Smith to “get rid of [Disla].” The defendant provided details of the car ride to the wooded area and how they had killed Disla by suffocation. He recounted in lengthy and harrowing detail how he and Smith had destroyed the body, first by dismembering it and then burning it with acid. During the conversations, the defendant repeatedly took credit for the
Because Williams had been deported prior to the defendant‘s knowledge or receipt of the tape recordings, and neither the state nor the federal government knew of Williams’ whereabouts after his deportation, the defendant could not cross-examine Williams about the circumstances surrounding their creation. Accordingly, the defendant moved to suppress the tape recordings and to dismiss the charges, claiming that his rights to due process and compulsory process had been violated. Following extensive argument and the submission of lengthy briefs on the issues, the trial court denied both motions after applying the balancing test set forth by this court in State v. Morales, 232 Conn. 707, 719-20, 657 A.2d 585 (1995). Specifically, the court found that the defendant had failed to establish any bad faith on the part of the state or the federal government in deporting Williams and to demonstrate that Williams’ testimony would have been favorable to him.
The defendant challenges the trial court‘s denial of the motions claiming that, because part of the defense theory of the case was that the defendant‘s statements to Williams were exaggerations meant to make him appear tough to further protect himself while incarcerated, and that he made the statement to Williams only after Williams had warned him about the need to appear tough so as not to be victimized by the other inmates, Williams’ unavailability left the defendant unable independently to corroborate his theory of defense. The defendant claims that as a consequence of the court‘s decisions, his rights to due process under the state constitution and compulsory process under the state and federal constitutions were violated. Although we are mindful that the state is under an obligation to
A
We begin with the standard by which we determine whether the defendant‘s state constitutional rights to due process were violated. Under both the state and the federal constitution, the state‘s failure to provide evidence within its control to a criminal defendant may violate the defendant‘s right to due process of law in two types of situations. Id., 714. The first situation concerns the state‘s withholding of exculpatory evidence. Id. The second situation, and the one at issue in this case, concerns the failure of the police to preserve evidence that might be useful to the accused. Id.
Prior to the decision of the United States Supreme Court in Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), wherein the court held that “bad faith” on the part of the government was necessary in order to establish a due process violation for its failure to preserve evidence, we had applied “a balancing test in determining whether the failure of the police to preserve potentially useful evidence had deprived a criminal defendant of due process of law under either the federal or state constitution. Relying on decisions of federal courts interpreting the federal constitution‘s due process clause, we had required a trial court, in determining whether the defendant had been deprived of his rights under either the federal or the state constitution, to weigh several factors. These factors included ‘the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.’ State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985) . . . .” (Citations omitted.) State v. Morales, supra, 232 Conn. 719-20; see also id., 720 (noting that “we refer to these factors as the Asherman test“).
Then, in Morales, we rejected the bad faith litmus test from Youngblood as inadequate to determine whether the defendant had been afforded due process under the state constitution, and instead we incorporated the Asherman balancing test as the appropriate framework for deciding whether the failure of the police to preserve evidence deprived the defendant of his state constitutional rights to due process. State v. Morales, supra, 232 Conn. 720. Accordingly, applying the Asherman test, we weigh the reasons for the unavailability of the evidence, the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury and the prejudice to the defendant. Id., 726-27. The first factor scrutinizes the state‘s involvement, and the remaining three examine the impact on the trial. Applying this test, we conclude that the defendant‘s rights to due process under the state constitution were not violated.
We begin with the state‘s involvement in the failure to preserve the evidence. We recognize the state‘s claim that it had no responsibility for Williams’ deportation and that it had no ability or authority to control it. We need not, however, find that the state had control over federal immigration to hold the state accountable for Williams’ unavailability. The state may not have known about Williams’ actual deportation until after the fact, but it had worked closely with the federal government building its case against the defendant, it knew that Williams’ cooperation was a factor in his federal sentence and it knew that deportation was a likely consequence of his felony conviction, as reflected in Williams’
We turn next to the remaining three factors, the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury and the prejudice to the defendant, all of which focus on the impact the failure to preserve Williams’ testimony had on the defendant‘s trial. When he testified, the defendant admitted to the jury that he had spent nearly five hours recounting to Williams in exacting detail how he had ordered the robbery, participated in the murder and destroyed the evidence; he claimed, however, to have exaggerated his role in the crimes and to have lied to some degree to Williams because he was afraid of him and other violent felons with whom he was incarcerated. The defendant thought that it would be in his interest to earn a reputation as a “tough guy.”
In deciding whether Williams’ testimony would have been material,17 we are guided by how we have defined that term in other preservation cases. In State v. Baldwin, 224 Conn. 347, 365, 618 A.2d 513 (1993), a case involving the destruction of evidence, decided before the Morales court‘s rejection of the Youngblood bad faith litmus test in a state due process analysis, this
Because Williams could have testified to the circumstances surrounding the making of the tape recording, the defendant contends that his testimony was material. Certainly, his testimony might have been material had there been an issue of authenticity of the tape recording. There was no such issue in this case, however, only whether Williams had indeed threatened the defendant prior to turning on the tape recorder, thereby motivating the defendant to embellish the details of the crime so as to appear dangerous in his own right. Although Williams might have been cross-examined in this regard, there
Indeed, the only other legitimate purpose that examination of Williams could have had was to show that he had received consideration by the federal government for his assistance in the present case, that prison is a place to be avoided and that Williams was, in general, someone to be feared. Williams’ criminal involvement illustrating his criminal propensities and the relatively lenient treatment he received vis-a-vis the disposition of his cases were, however, put before the jury through the defendant‘s extensive cross-examination of the federal officers through whom the tape recording was offered.
In short, we cannot assume, and the defendant has not pointed us to any evidence to suggest, that Williams would have admitted to threatening the defendant prior to recording the conversations or that Williams said anything else to support the defendant‘s explanation of why he felt the need to embellish the details of the murder. Accordingly, the defendant has not demonstrated that Williams’ testimony would have been favorable and, thus, that his absence was prejudicial.
B
The defendant also claims that the state‘s failure to preserve Williams as an available witness violated his
“The federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment . . . [guarantees] the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant‘s version of the facts as well as the prosecution‘s to the jury so that it may decide where the truth lies. . . . When defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense.” (Citation omitted; internal quotation marks omitted.) State v. West, 274 Conn. 605, 624, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).
“The right to present a defense, and its concomitant right to compulsory process, are not unqualified; they are subject to countervailing public interests, Taylor v. Illinois, 484 U.S. 400, 414, 108 S. Ct. 646, 655, 98 L. Ed. 2d 798 (1988), such as the state‘s responsibility for arresting and prosecuting suspected criminals. See e.g., United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73, 102 S. Ct. 3440, 3449-50, 73 L. Ed. 2d 1193 (1982) (United States’ interest in faithfully executing immigration policy). To establish a violation of the right to present a defense based on lost evidence, a defendant must show that the evidence was material and exculpatory, and that it was of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413 (1984); see [United States v. Valenzuela-Bernal, supra, 867]; United States v. Rastelli, 870 F.2d 822, 833 (2d Cir.), cert. denied [sub nom. Agar v. United States, 493 U.S. 982, 110 S. Ct. 515, 107 L. Ed. 2d 516 (1989)]. Moreover, unless the defendant can show bad faith on the part of the state, failure to preserve potentially useful evidence does not constitute a denial of due process of law. Arizona v. Youngblood, [supra, 488 U.S. 58]; [California v. Trombetta, supra, 488]; [United States v. Valenzuela-Bernal, supra, 872]. Finally, the misconduct must demonstrate that the absence of [fundamental] fairness infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial. [United States v. Valenzuela-Bernal, supra, 872].” (Internal quotation marks omitted.) Buie v. Sullivan, 923 F.2d 10, 11-12 (2d Cir. 1990).
Although bad faith is not a prerequisite to a due process claim under the state constitution; see part II A of this opinion; the other requirements set forth in our prior discussion, along with our analysis of why the defendant has failed to satisfy them, pertain equally to his federal confrontation clause claim. Accordingly, the defendant‘s sixth amendment claim also fails.
C
Finally, although the defendant raises a compulsory process claim under the state constitution, complete with the requisite analysis enunciated in State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992),18 in the present
The judgment is affirmed.
In this opinion SULLIVAN, C. J., and PALMER and ZARELLA, Js., concurred.
BORDEN, J., concurring. I agree with the result reached by the majority, affirming the judgment of the trial court. I reach that same result, however, by a different route.
The defendant, Miguel Estrella, first claims that he was deprived of his constitutional right of confrontation, under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 354, 158 L. Ed. 2d 177 (2004), because at the probable cause hearing he did not have the opportunity to cross-examine an accomplice, Jonathan Rivers, about a letter that Rivers subsequently wrote admitting that he had lied at that hearing.1 More specifically, the defendant‘s claim is that, under Crawford, he did not have an adequate opportunity to cross-examine Rivers at the hearing because that opportunity did not include the use of the letter in that cross-examination. The majority addresses this claim by concluding that “[m]easuring the defendant‘s ability to cross-examine Rivers on matters affecting his reliability and credibility in order to comport with the constitutional standards embodied in the right to cross-examine; State v. Ortiz, 198 Conn. 220, 224, 502 A.2d 400 (1985); we are satisfied that the defendant was provided the requisite procedural safeguard to the right of confrontation. Crawford v. Washington, supra, [61]. Accordingly, we conclude that the defendant had a more than adequate and full opportunity to cross-examine Rivers both generally and specifically to address whether Rivers was giving truthful testimony.” The majority then goes on to conclude that the fact that the letter did not exist at the time of the hearing does not undermine its conclusion because “[e]ven if we were to assume without deciding that such evidence [namely, evidence that did not exist at the time of the prior opportunity for cross-examination] is relevant to the adequacy of the prior cross-examina-
In my view, this approach misconstrues the import of Crawford, and makes what is a very simple question into a needlessly complex one. Contrary to the majority‘s assumption of relevance of nonexistent evidence under Crawford, I conclude that such evidence is simply irrelevant to a proper Crawford analysis.
It cannot be the law that, under Crawford, evidence that did not even exist at the time of the prior opportunity for cross-examination can somehow render that opportunity inadequate, and therefore render the prior testimony inadmissible. Put another way, whether the prior opportunity for cross-examination was adequate, within the meaning of Crawford, must be gauged on the basis of evidence that was, at the least, in existence at that time; evidence that did not come into existence until years later, such as the letter in the present case, is simply irrelevant to the adequacy of the prior cross-examination.2 In short, whether the testimony that the
Crawford fundamentally changed our jurisprudence under the confrontation clause of the sixth amendment, as applied to the states through the fourteenth amendment. Whereas prior to Crawford our jurisprudence focused on whether hearsay was sufficiently reliable to satisfy the confrontation clause; see, e.g., Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); in Crawford, the United States Supreme Court changed the confrontation clause analysis from an assessment of reliability to the original understanding of the meaning of that clause. Thus, the court held that “the principal evil at which the [c]onfrontation [c]lause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused“; Crawford v. Washington, supra, 541 U.S. 50; and that “the [f]ramers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id., 53–54. Under the confrontation clause, therefore, “[t]estimonial statements of witnesses absent from trial have been
Applying this analysis to the defendant‘s claim, the conclusion is inexorable, in my view, that the letter, which did not exist at the time of the defendant‘s prior opportunity to cross-examine Rivers, cannot affect the admissibility, under Crawford, of that testimony. It is simply inconceivable to me that we could conclude that evidence that did not exist at the time of the prior testimony could somehow retroactively make that testi
The following hypothetical demonstrates the problem with the majority‘s analysis. Suppose that in a probable cause hearing an expert testifies that, under the DNA technology available at the time, the blood found on the victim is that of the defendant, and suppose further that the defendant has an opportunity to cross-examine the witness regarding that evidence and does so. Now suppose that, by the time of the trial, the expert witness has died, and the state offers her probable cause testimony. Under Crawford, the probable cause testimony would be admissible because of the defendant‘s prior opportunity for cross-examination.
Now add the fact that, by the time of trial,4 the defendant offers a new and, in his expert‘s opinion, more reliable type of DNA analysis, which was not in existence at the time of the prior testimony, that would tend to establish that the blood was not that of the defendant. The defendant objects to the admission of
Thus, the only legitimate question raised by the defendant‘s claim is not his Crawford claim of inadmissibility of Rivers’ testimony based on the letter—which I would summarily reject because the letter simply did not exist at the time of Rivers’ testimony—but his second claim, namely, that the trial court improperly excluded the letter. That, therefore, brings me to the defendant‘s second claim.
II
I agree with the majority that the letter was improperly excluded as impeachment evidence of Rivers’ probable cause testimony, but that the error was harmless. Without belaboring the point, I would also conclude, however, contrary to the majority‘s posture of not deciding the question, that the trial court‘s error was evidentiary and not constitutional.
It seems quite clear to me that there is no foundation—unless I am missing something—for a constitutional basis for the letter‘s admissibility. It is not bias or motive evidence; it is nothing more than evidence that impeaches Rivers’ prior testimony at the probable cause hearing, and the trial court abused its discretion in excluding it. Thus, the error was evidentiary, and
PALMER, J., concurring. I agree with, and therefore join, the majority opinion. I also agree generally with the view expressed by Justice Borden in his concurrence that Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 354, 158 L. Ed. 2d 177 (2004), does not bar the state from using the probable cause hearing testimony of Jonathan Rivers merely because Rivers’ recantation letter, which did not exist at the time of that hearing, was not available to the defendant when counsel cross-examined Rivers. Because the majority does not take a position contrary to that view, I join the majority opinion.