State v. GrahamState v. Graham
Convicted of felony murder, conspiracy to commit robbery in the first degree, and carrying a pistol without a permit, the defendant appealed. The defendant and two friends, M and C, encountered the victim on a walking path and decided to rob him. C attempted to shoot the victim, but his gun jammed, and the defendant used his own gun to fatally shoot the victim. The three men took money and other belongings from the victim, and fled the scenе. Approximately one week later, the defendant recounted the details of the incident to his friend, B. Around the same time, M described the incident to S, a friend, while they were together in M‘s backyard. At trial, B and S both testified, pursuant to cooperation agreements they each had with the state, regarding the conversations that they had with the defendant and M, respectively. Defense counsel objected when the state attempted to question S regarding the statement M had made to him, but the trial court determined that M‘s statement to S was admissible under the relevant provision (§ 8-6 (4)) of the Connecticut Code of Evidence embracing the hearsay exception for statements against penal interest. In making that determination, the court found that M was unavailable to testify, M‘s statement to S was sufficiently trustworthy, and the statement was against M‘s penal interest insofar as it implicated M in a plan to rob the victim, even if the statement also was, to some extent, self-serving. The defendant testified in his own defense, claiming that an unknown individual had shot the victim. During closing argument, the prosecutor suggested that the jury should discredit the defendant‘s testimony because he had tailored it to reflect the evidence presented by the other witnesses who had testified before the defendant took the stand. On the defendant‘s appeal, held:
1. Thе trial court properly admitted M‘s statement to S, in which M inculpated the defendant in the shooting:
a. The trial court did not abuse its discretion in admitting M‘s statement as a statement against penal interest under § 8-6 (4) of the Connecticut Code of Evidence: M‘s statement to S, which the state offered as a dual inculpatory statement insofar as it inculpated both M and the defendant, was against M‘s penal interest because M implicated himself in a plan to rob the victim and admitted his participation in the robbery, which gave rise to a homicide, exposing himself to a risk of punishment for conspiracy to commit robbery, robbery, and felony murder; moreover, regardless of the extent to which M‘s statement was intended to minimize his participation in the homicide by identifying the defendant as the shooter, the entire statement was self-inculpatory, including the specific portions in which M specifically identified the defendant as the shooter, because it exposed M to potential criminal liability for the same types of crimes with which the defendant was charged, and, inasmuch as this court concluded that M‘s entire statement was inculpatory, it declined the defendant‘s invitation to consider adopting a rule that prohibits the admission non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory; furthermore, the circumstances under which M made the statement were strongly indicative of its reliability, as M made the statement of his own volition, only one week after the crime took place, to an individual with whom he had a close relationship, during a casual encounter in his own backyard, and other evidence presented at trial, including video surveillance footage, the testimony of other witnesses, and physical evidence corroborated the trustworthiness of M‘s statement.
b. The admission of M‘s statement to S did not violate the defendant‘s federal constitutional right to confront the witnesses against him: M‘s statement was nontestimonial, as it was made in an informal setting, on M‘s own initiative, and to a friend before any criminal charges had been filed, and, therefore, it was not made under circumstances that would
2. The defendant could not prevail on his unpreserved claim that his right of confrontation under article first, § 8, of the Connecticut constitution was violated when the proseсutor, during closing argument, presented a generic tailoring argument: a generic tailoring argument is a comment, often made during closing argument, asking the jury to infer that the defendant had fabricated his testimony to conform to the testimony of previous witnesses, solely on the basis of the defendant‘s presence at trial and without reference to evidence from which the fact finder might reasonably infer that the substance of the defendant‘s testimony was fabricated in light of the evidence admitted at trial; in the present case, the prosecutor indicated that the defendant had listened to all of the testimony during the trial before deciding which pieces of evidence he would agree with, but in the context of noting that the defendant‘s account of the incident was inconsistent with his behavior on surveillance video and sharply diverged from the testimony of S and B, which supported the inference that the defendant‘s version of events was fabricated to conform to the evidence presented; accordingly, the challenged tailoring comments were specific rather than generic, as the prosecutor‘s suggestion of tailoring was tied to evidence admitted at trial that, if credited by the jury, could have supported the prosecutor‘s claims, and, therefore, the challenged comments did nоt violated the defendant‘s state constitutional right of confrontation.
3. This court declined to review the defendant‘s claim that the prosecutor improperly had elicited certain information contained in the cooperation agreements between the state and S and B, and improperly presented closing argument relating to that information: the defendant‘s claim was an unpreserved evidentiary claim masquerading as a claim of prosecutorial impropriety, because, during closing argument, the prosecutor merely commented on evidence that the trial court explicitly had allowed during S‘s and B‘s testimony, which was not improper, and the defendant failed to claim in his main brief filed with this court that the trial court had abused its discretion in admitting such testimony.
McDONALD, J. The defendant, James Graham, appeals from the judgment of conviction, rendered after a jury trial, of one count each of felony murder, conspiracy to commit robbery in the first degree, and carrying a pistol without a permit. On appeal, the defendant claims that (1) the trial court erred in admitting the statement of an accomplice that inculpated the defendant, in violation of § 8-6 (4) of the Connecticut Code of Evidence and the defendant‘s sixth amendment right to confrontation, (2) the prosecutor сommitted impropriety by presenting a generic tailoring argument during closing argument, which violated the defendant‘s confrontation rights under our state constitution, and (3) the prosecutor committed impropriety by eliciting certain information contained in two witnesses’ cooperation agreements and by presenting closing argument related to those materials. We affirm the judgment of conviction.
The jury reasonably could have found the following relevant facts. In 2017, the defendant and two of his friends, Robert Moye and Brennan Coleman, walked from the defendant‘s home in New Haven to the area where the Farmington Canal Heritage Trail (Canal Line Trail), a walking and bike path, intersects with Dudley Street in Hamden. Along the way, they observed Donavan Lowndes—a friend of Coleman‘s—driving along Dudley Street. Coleman flagged Lowndes down, and the three men approached Lowndes’ vehicle, where they talked briefly. During their conversation, Coleman pulled out a semiautomatic pistol and showed it to Lowndes.
Moments later, the defendant, Moye, and Coleman observed the victim, Leandre Benton, walking along the Canal Line Trail. The defendant and his friends were members of “Read Street” and “Starr Block,” allied groups in New Haven. The victim, however, was a member of “SLB,” a rival group in Hamden. When they saw the victim, Coleman suggested, “let‘s go stain him,” meaning they should rob him. They approached the victim and asked him whether he was “SLB.” In response, the victim punched Coleman in the face. Coleman took out his gun to shoot the victim, but the gun jammed. The defendant then pulled out his .380 caliber pistol and fatally shot the victim. Following the shooting, the three men took money and a cell phone from the victim. They also took some of the victim‘s clothing and then fled the scene on foot.
Thereafter, Moye messaged his friend, Steven Capers, and asked him to pick him up in Hamden. Capers agreed. Shortly after Capers arrived, the defendant, Moye, and Coleman emerged from a backyard, running away from the direction of Dudley Street. They rushed into the back seat of Capers’ car, leaving the doors
Later that same evening, Moye initiated a FaceTime call with Donald Harris, who was in the car with Capers. The defendant, Moye, and Coleman were all visible on the screen. They informed Harris and Capers that they were staying in Waterbury. During the call, the defendant, Moye, and Coleman were “flashing guns.” Moye displayed a .38 caliber revolver, Coleman displayed a nine millimeter semiautomatic pistol, and the defendant displayed a .380 caliber pistol.
Approximately one week later, while the defendant was at the home of his friend, Jalen Bacote, Bacote mentioned that he had seen a post on Facebook about the victim‘s death. The defendant went on to recount the details of the incident, including that he shot the victim and that he, Moye, and Coleman then took money, a cell phone, and some clothes from the victim. Around the same time, Capers visited Moye. While they were smoking marijuana, in Moye‘s backyard, with Harris, Moye asked Capers to swear that he would not tell anyone what he was about to say. Capers agreed, and Moye proceeded to divulge certain details about the murder.
The state charged the defendant with one count each of felony murder, conspiracy to commit robbery in the first degree, and carrying a pistol without a permit. At trial, the state called, among other witnesses, Capers and Bacote, who, рursuant to their cooperation agreements with the state, testified regarding the aforementioned conversations they had with Moye and the defendant, respectively. The defendant also testified in his own defense. Although the defendant admitted that he was at the scene of the murder, along with Moye and Coleman, he denied any involvement. According to the defendant, he, Moye, and Coleman walked to Dudley Street because Coleman was planning to meet someone there. Because that person never arrived, they began walking back toward the defendant‘s house and encountered the victim. The defendant explained that the victim called them over and asked for marijuana bags, which Coleman happened to be carrying. The defendant testified that, while Coleman and the victim began to engage in a drug transaction, someone wearing a black hooded sweat suit and a face covering came up from behind and aimed a gun at them. The defendant claimed that he yelled out and began running back toward Dudley Street. Moye and Coleman followed. He also said
Ultimately, at the conclusion of the trial, the jury found the defendant guilty as charged. The court sentenced the defendant to a total effective sentence of fifty-two years of incarceration. This appeal followed. Additional facts will be set forth as necessary.
I
A
We begin with the defendant‘s challenge to the trial court‘s admission of Capers’ testimony regarding Moye‘s statement to him about the murder. The following additional facts are relevant to our analysis. At trial, the prosecutor called Capers to testify. During Capers’ direct examination, the prosecutor alerted the court that he anticipated that defense counsel would object to questions he intended to ask regarding a “dual inculpatory statement” that Moye had made to Capers after the murder. The prosecutor conducted a proffer examination of Capers outside the presence of the jury. In response to the prosecutor‘s questions, Capers explained that, approximately one week after the murder, Moye, Capers, and Harris were smoking marijuana in Moye‘s backyard. During that gathering, Moye made Capers “do a solemn . . . oath, like say on word of [his] son [that he] wasn‘t going to tell something” or, in other words, “swear to God [he would not] say nothing.” Capers “told [Moye] to say the same thing,” and they went on to exchange secrets. Moye divulged details about the murder to Capers. Specifically, Moye told Capers that, when he was walking with Coleman and the defendant on the Canal Line Trail, they saw the victim and decided to “stain” him. Moye explained that he, Coleman, and the defendant approached the victim and asked if he was “SLB.” Moye stated that the victim then punched Coleman in the face, and Coleman, in turn, pulled out his gun, a “baby nine,” and attempted to shoot the victim, but the gun jammed, so the defendant shot him with his .380 caliber pistol. Moye did not tell Capers whether he was carrying a gun, himself, or whether they actually stole anything from the victim.
Defense counsel objected to the state‘s proffer, arguing that Moye‘s statement to Capers constituted
Ultimately, the trial court overruled defense counsel‘s objection to Capers’ testimony and concluded that the statement was admissible as a statement against penal interest. Specifically, after finding that Moye was unavailable,1 the court applied the test set forth in § 8-6 (4) of the Connecticut Code of Evidence to determine whether Moye‘s statement to Capеrs was sufficiently trustworthy to constitute a statement against penal interest. The court made the following findings: “A fair reading of [Moye‘s] statement, viewed through the lens of common sense, makes it abundantly clear that [his] statements . . . subject[ed] both [him] and the defendant to criminal liability; to wit, a conspiracy or plan to rob the victim. . . . With regard to the factors, the time that the statement was made, it was made only one week following the commission of the crime. The person to whom it was made, this witness, who, there‘s evidence before the jury, is a longtime friend. They hung out together almost on a daily basis, and the evidence demonstrates that . . . Capers is a person in whom, based on their relationship, [Moye] would be likely to confide . . . . In fact, the testimony is that . . . Moye made . . . Capers swear an oath not to repeat the statement, and . . . Capers testified [that] he told [Moye], in fact, a confidence in return. In terms of corroboration of the evidence, there is the evidence before the jury with regard to the state‘s exhibit, the video [of the defendant, Moye, and Coleman walking to and from the Canal Line Trail], which shows all these individuals together. And the jury now knows, through the testimony, if [the jury chooses] to accept it, from . . . Lowndes, that at least one of them, as far as the jury knows at this point, was armed. In terms of penal interest, [State v. Azevedo, 178 Conn. App. 671, 686, 176 A.3d 1196 (2017), cert. denied, 328 Conn. 908, 178 A.3d 390 (2018)], indicates that whether a statement is against a declarant‘s penal interest is an objective inquiry of law, rather than a subjective analysis of the
On appeal, the defendant contends that the trial court incorrectly concluded that the statement satisfied the dual inculpatory hearsay exception because the statement (1) was not truly against Moye‘s penal interest, in that it minimized Moye‘s role in the criminal conduct, while inculpating the defendant and Coleman, and (2) was not trustworthy. The state disagrees and argues that the trial court properly found that the statement at issue (1) was against Moye‘s penal interest, even though he did not portray himsеlf as the actual shooter, and (2) was sufficiently trustworthy, under the factors set forth in § 8-6 (4) of the Connecticut Code of Evidence, to be admitted into evidence.
We begin with the standard of review and relevant legal principles. “The law regarding out-of-court statements admitted for the truth therein is well settled. An out-of-court statement offered to establish the truth of the matter asserted is hearsay. . . . As a general rule, such hearsay statements are inadmissible unless they fall within a recognized exception to the hearsay rule.” (Internal quotation marks omitted.) State v. Rivera, 268 Conn. 351, 360, 844 A.2d 191 (2004). “Section 8-6 (4) of the Connecticut Code of Evidence carves out an exception to the hearsay rule for an out-of-court statement made by an unavailable declarant if the statement was ‘trustworthy’ and, ‘at the time of its making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarant‘s position would not have made the statement unless the person believed it to be true.’ ” Id., 361; see also, e.g., State v. Patel, 342 Conn. 445, 477, 270 A.3d 627 (2022), petition for cert. filed (U.S. August 18, 2022) (No. 22-155). Section 8-6 (4) further instructs that, “[i]n determining the trustworthiness of a statement against penal interest, the court shall consider (A) the time the statement was made and the person to whom the statement was made, (B) the existence of corroborating evidence in the case, and (C) the extent to which the statement was against the declarant‘s penal interest.” Conn. Code Evid. § 8-6 (4). “[N]o single factor . . . is necessarily conclusive . . . . Thus, it is not necessary that the trial court find that all of the factors support the trustworthiness of the statement. The trial court should consider all of the
In this case, the state offered Moye‘s statement to Capers as a dual inculpatory statement, which is “a statement that inculpates both the declarant and a third party, in this case the defendant.” State v. Schiappa, 248 Conn. 132, 145 n.15, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). We evaluate a dual inculpatory statement using the same criteria that govern the admission of a statement against penal interest. See, e.g., id., 153–54. “Whether a statement is against a declarant‘s penal interests is an objective inquiry of law, rather than a subjective analysis of the declarant‘s personal legal knowledge. Under § 8-6 (4) [of the Connecticut Code of Evidence], we must evaluate the statements according to a reasonable person standard, not according to an inquiry into the declarant‘s personal knowledge or state of mind.” State v. Camacho, 282 Conn. 328, 359, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007). Moreover, “it is not the fact that the declaration is against interest but the awareness of that fact by the declarant which gives the statement significance.” (Internal quotation marks omitted.) State v. Bryant, 202 Conn. 676, 696, 523 A.2d 451 (1987). “[W]hen viewing this issue through an evidentiary lens, we examine whether the trial court properly exercised its discretion.” (Internal quotation marks omitted.) State v. Camacho, supra, 363.
We first consider whether Moye‘s statement was against his penal interest. The essential characteristic as to what is against penal interest is “the exposure to risk of punishment for a crime.” (Internal quotation marks omitted.) State v. Bryant, supra, 202 Conn. 695–96. Here, Moye‘s statement exposed him to a risk of punishment for conspiracy to commit robbery, robbery, and felony murder. As the trial court noted, Moye implicated himself in a plan to rob the victim. Moye also told Capers that he was aware that Coleman and the defendant were armed with firearms and, therefore, was aware that there was a likelihood that death could result during the commission of the robbery. He also admitted that he was present when the defendant shot and killed the victim. Moye, therefore, admitted his participation in a robbery that gave rise to a homicide and exposed himself to the possibility of a charge of felony murder. See
To the extent that Moye attempted to minimize his participation in the homicide by stating that the defendant was the one who shot the victim, we find this court‘s decision in State v. Rivera, supra, 268 Conn.
We also find it significant that Moye requested that Capers undertake “a solemn . . . oath” before divulging the details of the murder. This “oath,” coupled with the fact that Moye repeatedly told Capers “that they probably [were] going to get caught,” bolsters the conclusion that Moye was aware that the statement was against his penal interest. See, e.g., State v. Camacho, supra, 282 Conn. 360–61; see also, e.g., State v. Rivera, supra, 268 Conn. 368–69 (fact that declarant drove to remote location before making inculpatory statement, told nephew that he and defendant had done something wrong, and admonished nephew not to repeat statement indicated that declarant “reasonably could have foreseen that the statement was against his penal interest“).
The defendant nevertheless contends that, short of excluding the entire statement, the trial court should have admitted only those portions of the statement in which Moye explicitly inculpated himself in the crime. Specifically, he contends that Moye‘s statement “that the defendant took out his gun and shot the victim is a non-self-inculpatory statement contained in an overall broader narrative.” To that end, he argues that we should reject the approach to statements against penal interest that we adoptеd in State v. Bryant, supra, 202 Conn. 696–97, namely, that, “[when] the disserving parts of a statement are intertwined with self-serving parts, it is more prudential to admit the entire statement and let the trier of fact assess its evidentiary quality in the complete context,” and, instead, follow the United States
Because we conclude that Moye‘s entire statement, including those specific portions naming the defendant as the shooter, was self-inculpatory, we need not decide whether to adopt the approach taken by Williamson. See, e.g., State v. Rivera, supra, 268 Conn. 371 n.18 (concluding that codefendant‘s entire statement was self-inculpatory, including any portions that were designed to minimize codefendant‘s participation in crime). Indeed, although Moye identified the defendant as the actual shooter, Moye also directly and explicitly incriminated himself by admitting his own participation in the plan to commit a robbery that gave rise to the murder. Moreover, even if Moye‘s statement served as an attempt to minimize his participation in the actual homicide, the statement still implicated him in the murder and exposed him to potential liability for the same types of crimes with which the defendant was charged. See, e.g., State v. Camacho, supra, 282 Conn. 360 (codefendant‘s statements were not blame shifting because they exposed him to potential liability for same crimes with which defendant was charged, thereby implicating codefendant and defendant equally); State v. Azevedo, supra, 178 Conn. App. 685–88 (statements were against penal interest when declarant, who was accessory to defendant‘s crimes, stated that defendant was responsible for setting house on fire and detailed how defendant set fire that destroyed home).
We also note an important factual distinction that differentiates this case from Williamson. In Williamson, the United States Supreme Court was required to determine whether an accomplice‘s confession to the United States Drug Enforcement Administration, which inculpated the defendant, was admissible pursuant to
The application of the foregoing principles leads us to conclude that the trial court did not abuse its discretion in determining that Moye‘s statement was against his penal interest. Having so concluded, we turn next to the remaining factors under the trustworthiness component of our inquiry, namely, “(A) the time the statement was made and the person to whom the statement was made, [and] (B) the existence of corroborating evidence in the case . . . .” Conn. Code Evid. § 8-6 (4).
With regard to the first factor, we conclude that the circumstances under which Moye made his statement to Capers were strongly indicative of its reliability. “In general, declarations made soon after the crime suggest more reliability than those made after a lapse of time [when] a declarant has a more ample opportunity for reflection and contrivance.” (Internal quotation marks
Additionally, Moye made the contested statement of his own volition, to people with whom he had a close relationship, during a casual encounter in his backyard. Capers testified that he had known Moye for six or seven years and that he, Harris, and Moye were all part of a group who regularly hung out together. It is well settled that statements made to friends and close associates “are significantly more trustworthy than statements obtained by government agents for the purpose of creating evidence that would be useful at a future trial. . . . In short, neither facing arrest nor being under arrest when making his statements to [the witness], [the declarant] lacked the obvious incentive to shift blame or curry favor with the police. . . . Additionally, although [the witness] was not a relative of [the declarant] . . . a factor that we have previously noted when evaluating whether a statement is trustworthy, the trial court specifically found that [the witness] was far from a stranger . . . . [T]he fact remains that they shared a friendship and a relationship of trust.” (Citations omitted.) State v. Pierre, supra, 277 Conn. 70; see also, e.g., State v. Camacho, supra, 282 Conn. 362; State v. Rivera, supra, 268 Conn. 369; State v. Bryan, 193 Conn. App. 285, 305 n.15, 219 A.3d 477, cert. denied, 334 Conn. 906, 220 A.3d 37 (2019). We therefore conclude that the fact that Moye made the contested statement in a noncoercive atmosphere to a person with whom he had a close relationship further supports the statement‘s reliability and weighs in favor of admissibility.3
The defendant nevertheless contends that the circumstances in which Moye made his statement are “no different” from the circumstances in which the declarant made a statement in State v. Boyd, 214 Conn. 132, 570 A.2d 1125 (1990), which we held were not trustworthy. See id., 140. We disagree. In Boyd, the defendant was charged with felony murder and first degree burglary, among other crimes. Id., 133. The only evidence offered by the state to implicate the defendant in the victim‘s murder was a written statement made by the codefendant, Tyrone Wilson. Id., 134. This court held that the statement was inadmissible on evidentiary grounds because it “was made to the police while Wil-
This case is clearly distinguishable from Boyd. Here, Moye‘s statement was not made during police interrogation, and, thus, there was no such “obvious [motive] for falsification,” namely, “the very natural desire to curry favor from the arresting officers . . . .” (Internal quotation marks omitted.) Id. Furthermore, as we explain hereinafter, there was evidence adduced at trial that corroborated Moye‘s account insofar as it implicated the defendant in the murder. As our Appellate Court aptly stated, ”Boyd does not create a blanket rule of inadmissibility of all declarations against penal interest when they are inculpatory as to both the declarant and the defendant. Instead, based [on] the traditional analysis of trustworthiness, such statements are inadmissible when made after the crime is complete and when made in a custodial environment to a custodian such as a law enforcement officer.” (Emphasis added.) State v. Lynch, 21 Conn. App. 386, 396, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990). Far from giving a statement in a custodial environment to law enforcement, Moye made his statement during a casual backyard gathering to a longtime friend. Thus, we conclude that the first factor strongly weighs in favor of the statement‘s trustworthiness.
With regard to the second factor, there was other evidence presented at trial that corroborated the trustworthiness of Moye‘s statement. The trial court expressly relied on the fact that video surveillance captured Moye, Coleman, and the defendant in the vicinity immediately before and after the shooting. Further, the jury heard testimony from Lowndes that, prior to their encounter with the victim, either the defendant, Moye, or Coleman was armed, as Coleman showed Lowndes a gun after approaching his car. In addition to the evidence on which the trial court explicitly relied, additional, independent evidence adduced at trial further corroborated Moye‘s statement. Moye‘s account was consistent with the physical evidence; Moye told Capers that the defendant used a .380 caliber pistol, which was corroborated by the .380 caliber bullet recovered from the victim‘s body during his autopsy. Additionally, Moye accurately
In sum, in light of the inculpatory nature of the statement, the fact that the statement was made only one week after the crime during a casual encounter in Moye‘s backyard, and the existence of corroborating evidence presented at trial that supported the statement‘s trustworthiness, we conclude that the trial court did not abuse its discretion when it admitted Moye‘s dual inculpatory statement to Capers under § 8-6 (4) of the Connecticut Code of Evidence.
B
We next address whether the admission of Moye‘s statement violated the defendant‘s sixth amendment right to confrontation.4 At the outset, we note that the defendant makes only cursory reference to his sixth amendment right in his brief and does not separately analyze this constitutional claim from his evidentiary claim. Indeed, he does not cite or apply the controlling standard set forth by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), or its progeny, Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). Nevertheless, to the extent that this unpreserved claim was adequately briefed, we conclude that Moye‘s statement was nontestimonial, and its admission, therefore, did not violate the defendant‘s confrontation rights.
The defendant did not raise his sixth amendment claim at trial and seeks review pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original; footnote omitted.) State v. Golding, supra, 239–40; see In re Yasiel R., supra, 781 (modifying third prong of Golding). Because the record is adequate for review,
As we have explained: “Beyond [the previously mentioned] evidentiary principles, the state‘s use of hearsay evidence against an accused in a criminal trial is limited by the confrontation clause of the sixth amendment. . . . The [c]onfrontation [c]lause . . . bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.” (Internal quоtation marks omitted.) State v. Pierre, supra, 277 Conn. 75.
In Crawford, the United States Supreme Court “drew a distinction between testimonial hearsay statements and those deemed nontestimonial.” (Internal quotation marks omitted.) State v. Pierre, supra, 277 Conn. 76. “Under Crawford . . . the hearsay statements of an unavailable witness that are testimonial in nature may be admitted under the sixth amendment‘s confrontation clause only if the defendant has had a prior opportunity to cross-examine the declarant. Hearsay statements that are nontestimonial in nature are not governed by the confrontation clause, and their admissibility is governed solely by the rules of evidence.” (Citation omitted; internal quotation marks omitted.) State v. Holley, 327 Conn. 576, 585 n.5, 175 A.3d 514 (2018).
Since the United States Supreme Court‘s decision in Crawford, the court has formulated a “primary purpose” test for determining whether a statement is testimonial in nature. Davis v. Washington, supra, 547 U.S. 822. The primary purpose test directs courts to consider “whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’ of [a given] conversation was to ‘creat[e] an out-of-court substitute for trial testimony.’ ” Ohio v. Clark, 576 U.S. 237, 245, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015), quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). Accordingly, this court applies a primary purpose test for evaluating whether a statement is testimonial. See, e.g., State v. Sinclair, 332 Conn. 204, 225, 210 A.3d 509 (2019). Additionally, we have consistently applied the rule that, in determining a declarant‘s primary purpose in making a statement, courts must consider “the formality attendant to the making of the statement . . . .” Id.; see also Ohio v. Clark, supra, 245, 247; Michigan v. Bryant, supra, 366, 377; State v. Patel, supra, 342 Conn. 462, 464–65.
A review of our case law in this area persuades us that Moye‘s statement was nontestimonial, and, therefore, its admission did not violate the defendant‘s confrontation rights. See, e.g., Ohio v. Clark, supra, 576 U.S. 245 (“[A] statement cannot fall within the [c]onfrontation [c]lause unless its primary purpose was testimonial. [When] no such primary purpose exists, the
II
We next address the defendant‘s claim that the prosecutor committed impropriety by presenting a generic tailoring argument during closing argument when he suggested that the jury should discredit the defendant‘s testimony because the defendant testified after “hear[ing] all the testimony.” The defendant contends that this argument violated his confrontation rights under article first, § 8, of the state constitution.
The following additional facts are relevant to our analysis. During his closing argument, the prosecutor summarized the defendant‘s testimony as follows: “[The defendant] indicate[d] that [the person who shot the victim] wasn‘t him. It was a masked man in a track suit who came in from somewhere, not anywhere on camera . . . but from somewhere in the trees, and aimed this gun at them and fired.” The prosecutor proceeded to replay a video, which was shown during the course of trial, of the defendant, Moye, and Coleman running away from the scene after the victim was shot. The prosecutor then asked: “Do you see any of those men duck? Do you see any of them scatter, dive behind a car, get behind a tree, try to get anywhere away from the shooter? Do you see them running with arms pumping like an Olympic sprinter, or do they have their hands in their pockets, jogging, like they are trying to get away from a crime scene?”
The prosecutor then returned to the defendant‘s ver-
The defendant‘s claim on appeal rests on two predicates, both of which must be satisfied in order for him to prevail. First, the defendant argues that the prosecutor made a generic tailoring argument in two particular portions of the closing argument. In the first instance, the prosecutor said: “The defendant sat here throughout the course of the trial. He heard all the testimony. And, I‘d submit to you, he had an opportunity to decide which pieces of evidence he wanted to disagree with and which pieces of evidence he was going to concede.” In the second instance, the prosecutor argued: “So, the one portion of the evidence [for which] the defendant has an opportunity to give a piece of information—it can‘t easily be challenged because it‘s not on camera—is the [moment] of the shooting. So, the [moment] of the shooting, he tells you the story that we‘ve been talking about.” Second, the defendant argues that, although permissible under the federal constitution, generic tailoring arguments violate the right to confrontation guaranteed by article first, § 8, of the state constitution, which, according to the defendant, provides broader protections than the federal constitution. The state argues, however, that the contested portions of the prosecutor‘s closing argument constituted a specific, rather than generic, tailoring argument, which this court
Defense counsel did not object to the prosecutor‘s closing argument at trial, and the defendant therefore seeks review of his unpreserved claim under State v. Golding, supra, 213 Conn. 239–40, as modified by In re Yasiel R., supra, 317 Conn. 781. See part I B of this opinion. Because the record is adequate for review and the defendant alleges a violation of a state constitutional right, we must determine whether the alleged violation exists.
“A prosecutor makes a tailoring argument when he or shе attacks the credibility of a testifying defendant by asking the jury to infer that the defendant has fabricated his testimony to conform to the testimony of previous witnesses. . . . The term most frequently is used to refer to a prosecutor‘s direct comment during closing argument on the defendant‘s opportunity to tailor his testimony, although a prosecutor sometimes also will use cross-examination to convey a discrediting tailoring message to the jury. There are two types of tailoring arguments: generic and specific. The former occurs when the prosecutor argues the inference solely on the basis of the defendant‘s presence at trial and his accompanying opportunity to fabricate or tailor his testimony. . . . A specific tailoring argument, by contrast, occurs when a prosecutor makes express reference to the evidence, from which the jury might reasonably infer that the substance of the defendant‘s testimony was fabricated to conform to the state‘s case as presented at trial.” (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Weatherspoon, 332 Conn. 531, 543–44, 212 A.3d 208 (2019).
In State v. Cassidy, 236 Conn. 112, 120, 125–29, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996), this court first addressed the constitutionality of tailoring arguments. We concluded that generic tailoring arguments violate a criminal defendant‘s sixth amendment right to confrontation; id., 125, 128–29; but specific tailoring arguments are constitutionally pеrmissible because such arguments are “linked solely to the evidence and not, either directly or indirectly, to the defendant‘s presence at trial.” Id., 128 n.17. Four years later, however, the United States Supreme Court released its decision in Portuondo v. Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000), in which it held that generic tailoring arguments do not violate any federal constitutional rights. Id., 70–71, 73.
The United States Supreme Court‘s decision in Portuondo required us to overrule Cassidy, which we did in State v. Alexander, 254 Conn. 290, 296, 755 A.2d 868 (2000). In Alexander, this court noted that, to the extent
In determining whether a tailoring comment is specific or generic, “we must view [the] statement in context to determine the true nature of the prosecutor‘s argument.” Id., 549. In this case, immediately preceding the first contested statement—that “[t]he defendant sat here throughout the course of the trial. He heard all the testimony. And, I‘d submit to you, he had an opportunity to decide which pieces of evidence he wanted to disagree with and which pieces of evidence he was going to concede“—the prosecutor summarized the defendant‘s version of events, then played a surveillance video that showed the defendant, Moye, and Coleman leaving the scene of the crime. The prosecutor suggested that the defendant‘s version of events was tailored to fit the evidence showing that he and his compatriots were captured on video leaving the scene of the crime, a fact that required him to fabricate a story about a masked gunman. The prosecutor then argued that the defendant‘s story was demonstrably false because his version—that an unnamed, masked assailant shot at the victim—was inconsistent with the video surveillance, which did not show the men ducking, hiding, or taking cover, as one would expect a person to do when faced with an armed assailant.
In the portion of argument between the two contested statements, the prosecutor noted that the defendant agreed with the state only with respect to those elements of his story that were established by indisputable evidence, namely, the GPS data, surveillance imaging, and electronic records. The prosecutor urged the jury to evaluate the defendant‘s credibility by reference to his behavior in the surveillance video, GPS records, which recorded the time at which the defendant left and returned to his home, and the testimony of the defendant‘s mother, Bellamy, Capers, and Bacote. He went on, in the second contested statement, to suggest that the defendant fabricated the only thing with which there was no irrefutable evidence to support—the true identity of the person who shot the victim.
We therefore conclude that the challenged tailoring comments were specific, rather than generic, because the suggestion of tailoring was tied to evidence that, if credited by the jury, could have supported the prosecutor‘s claims. See, e.g., State v. Weatherspoon, supra, 332 Conn. 549–50 (because prosecutor‘s statement that defendant‘s testimony “was entirely self-serving with the benefit of hearing all the testimony that came before” was supported by explicit evidence that could lead to reasonable inference of tailoring, it was specific tailoring argument (emphasis omitted; internal quotation marks omitted)); see also State v. Mattson, 122 Haw. 312, 327, 226 P.3d 482 (2010) (because prosecutor referred to specific evidence presented at trial, in addition to referring to defendant‘s presence at trial, court
III
Finally, we turn to the defendant‘s second claim of prosecutorial impropriety. Specifically, the defendant claims that the prosecutor improperly elicited certain information contained in the cooperation agreements of two of the state‘s witnesses, Capers and Bacote, and improperly presented closing argument related to those materials. The state contends that the defendant erroneously attempts to recast routine claims of alleged evidentiary error as claims of prosecutorial impropriety. Because the defendant did not challenge the trial court‘s evidentiary rulings admitting the testimony regarding Capers’ and Bacote‘s cooperation agreements on appeal, the state argues that the defendant‘s evidentiary claim is unreviewable. We agree with the state.
Our courts have recognized that it is usually not impropriety for a prosecutor to ask a question that may elicit objectionable testimony, let alone one—as in this case—that garners an objection that the trial court overrules, in favor of the prosecution. See, e.g., State v. Holmes, 169 Conn. App. 1, 15, 148 A.3d 581 (“simply posing an objectionable question does not amount to an actionable impropriety“), cert. denied, 323 Conn. 951, 151 A.3d 847 (2016); see also State v. Garcia, 7 Conn. App. 367, 374, 509 A.2d 31 (1986); cf. State v. Rowe, 279 Conn. 139, 151–52, 900 A.2d 1276 (2006) (defendant‘s claim was premisеd on propriety of prosecutor‘s questioning on subject of consciousness of guilt, rather than on alleged prosecutorial impropriety, and claim, therefore, must be considered evidentiary rather than constitutional). Moreover, “[a]rguing on the basis of evidence explicitly admitted [by the trial court] for that purpose cannot constitute prosecutorial [impropriety].” State v. Rowe, supra, 152. In this case, during closing argument, the prosecutor merely commented on evidence that the court explicitly allowed during the course of Capers’ and Bacote‘s respective testimonies. This certainly was not improper.
As a result, we conclude that the defendant‘s claim regarding Capers’ and Bacote‘s cooperation agreements is an unpreserved evidentiary claim masquerading as a claim of prosecutorial impropriety. It is well settled that we will not review such a claim. See, e.g., State v. Golding, supra, 213 Conn. 241; see also, e.g., State v.
The judgment is affirmed.
In this opinion ROBINSON, C. J., and MULLINS, KAHN and KELLER, Js., concurred.
Notes
The defendant does not raise a state constitutional claim in this regard. Accordingly, we have no occasion to consider whether our state constitution affords greater protection than the federal constitution.