STATE OF CONNECTICUT v. HIRAL M. PATEL
(SC 20446)
Supreme Court of Connecticut
Argued February 22, 2021—officially released March 22, 2022
Robinson, C. J., and McDonald, D‘Auria, Mullins, Kahn and Ecker, Js.
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Convicted of various crimes, including murder, in connection with a home invasion, the defendant appealed, claiming, inter alia, that the trial court had improperly admitted into evidence a dual inculpatory statement made by a codefendant, C, to E, a fellow prison inmate. The defendant‘s cousin, N, had included the defendant and C in N‘s plan to rob the victim, with whom N had previously engaged in drug transactions. N drove the defendant and C to the area of the victim‘s home, which the defendant and C eventually entered. After encountering the victim, C shot and killed him. While in custody on an unrelated charge, C recounted the events of the home invasion, including the defendant‘s role, to E, who surreptitiously recorded the conversation. At trial, the recording of C‘s conversation with E was admitted as a statement against penal interest under the applicable provision (§ 8-6 (4)) of the Connecticut Code of Evidence. In addition, defense counsel, in order to advance a theory of third-party culpability, sought to have the defendant‘s sister, M, testify about a purported confession that P, N‘s cousin, made to M. The trial court excluded M‘s testimony regarding P‘s confession on the ground that it was not sufficiently trustworthy. The Appellate Court affirmed the judgment of conviction, and the defendant, on the granting of certification, appealed to this court. Held:
- The Appellate Court correctly concluded that the trial court had not abused its discretion in admitting into evidence C‘s dual inculpatory statement to E:
- The admission of C‘s statement did not violate the defendant‘s right to confrontation under the United States constitution: in Crawford v. United States (541 U.S. 36), the United States Supreme Court indicated that statements of a defendant‘s coconspirator to a fellow inmate inculpating the defendant are nontestimonial, and, subsequently, federal and state courts have consistently rejected claims that the admission of statements between inmates or between an inmate and an informant that inculpate a defendant violate the defendant‘s right to confrontation; moreover, in determining whether the admission of such statements implicates a defendant‘s right to confrontation, courts have undertaken an objective analysis of the circumstances surrounding the making of the statements and the encounter during which they were made in order to assess the primary purpose and degree of formality of that encounter; in the present case, C‘s statement to E was elicited under circumstances in which the objectively manifested purpose of the encounter was not to secure testimony for trial, as C made his statement in an informal setting, namely, his prison cell, to his cellmate, E, who questioned C in a sufficiently casual manner to avoid alerting C that C‘s statement was going to be relayed to law enforcement.
- The admission of C‘s statement did not violate the defendant‘s confrontation rights under
article first, § 8, of the Connecticut constitution : although the defendant urged this court to depart from the federal standard and to hold, under the state constitution, that a statement qualifies as testimonial if the reasonable expectation of either the declarant or the interrogator/listener is to prove past events potentially relevant to a later criminal prosecution, this court was not convinced that the defendant established the necessary predicates for departing from the federal standard, as an analysis under the six factors set forth in State v. Geisler (222 Conn. 672) did not support a more protective interpretation under the state constitution; moreover, although this court noted that it might be compelled to reach a different result under a slight variation of the facts, in the present case, the court had a fair assurance that government officials did not influence the content or the making of C‘s statement, as there was no evidence to suggest any involvement by the state‘s attorney‘s office in orchestrating the inquiry or that the police coachedE on what questions to ask or what facts they were seeking to learn, and, because the conversation between C and E was recorded, the trial court could ascertain the extent to which, if any, C‘s answers may have been shaped or coerced by E. - The trial court did not abuse its discretion in admitting C‘s statement under § 8-6 (4) of the Connecticut Code of Evidence as a statement against penal interest: although the fact that the statement was made thirteen months after the commission of the crimes weighed against its admission, and although E and C, who were fellow inmates for only a short period of time, did not share the type of relationship that would support the statement‘s trustworthiness, C‘s account of the home invasion was consistent with the physical evidence in almost all material respects, the statement was clearly against C‘s penal interest, as he cast himself as the principal actor in the commission of the crimes, and C‘s statement and the circumstances surrounding the making of that statement had none of the characteristics that historically has caused courts to view dual inculpatory statements as presumptively unreliable when offered to prove the guilt of a declarant‘s accomplice.
- The Appellate Court correctly concluded that the trial court had properly excluded P‘s confession to M, which the defendant attempted to offer through M‘s testimony as a statement against penal interest under § 8-6 (4): the trial court reasonably concluded that P‘s purported confession, in which he admitted that it was he, and not the defendant, who accompanied C into the victim‘s home, was not sufficiently trustworthy to be admitted as a statement against penal interest, as much of the evidence that the defendant characterized as corroborative indicated only that P may have played some role in connection with the home invasion, not that P had been present in the victim‘s home; moreover, P‘s confession was made more than one year after the incident, and M claimed to have told no one except the defendant about P‘s confession for more than three and one-half years after P made the confession, delays that provided M with the opportunity to learn of the details of the prosecution‘s theory of the case.
Procedural History
Substitute information charging the defendant with the crimes of felony murder, murder, home invasion, burglary in the first degree as an accessory, robbery in the first degree as an accessory, conspiracy to commit robbery in the first degree, conspiracy to commit burglary in the first degree, and tampering with physical evidence, brought to the Superior Court in the judicial district of Litchfield and tried to the jury before Danaher, J.; thereafter, the court denied the defendant‘s motions to preclude certain evidence; verdict of guilty; subsequently, the court, Danaher, J., granted the defendant‘s motion to vacate the verdict as to the charge of felony murder and vacated the verdict as to the charge of conspiracy to commit robbery in the first degree; judgment of guilty of murder, home invasion, burglary in the first degree as an accessory, robbery in the first degree as an accessory, conspiracy to commit burglary in the first degree, and tampering with physical evidence, from which the defendant appealed to this court; subsequently, the case was transferred to the Appellate Court, Alvord, Bright and Bear, Js., which affirmed the trial court‘s judgment, and the defendant, on the granting of certification, appealed to this court. Affirmed.
Richard Emanuel, for the appellant (defendant).
Matthew A. Weiner, assistant state‘s attorney, with whom, on the brief, was Dawn Gallo, state‘s attorney,
KAHN, J. Following a jury trial, the defendant, Hiral M. Patel, was convicted of murder in violation of
The Appellate Court‘s decision sets forth the following facts that the jury reasonably could have found. “On June 12, 2012, [the] police arrested Niraj Patel (Niraj), the defendant‘s cousin, after a motor vehicle stop . . . . [Niraj] was charged with criminal attempt to possess more than four ounces of marijuana, interfering with an officer, tampering with evidence, possession of drug paraphernalia, and motor vehicle charges. Following his arrest, Niraj unsuccessfully attempted to borrow money . . . to pay his attorney.
“Niraj thereafter formed a plan to rob Luke Vitalis, a marijuana dealer with whom Niraj had conducted drug transactions. Vitalis lived with his mother, Rita G. Vitalis . . . in Sharon. [Niraj offered money to Michael Calabrese, a friend, and the defendant to perform the robbery.]
“Niraj knew that Vitalis had sold ten pounds of marijuana from his home on August 5, 2012, and set up a transaction with Vitalis for the following day, with the intention of robbing Vitalis of his proceeds of the previous sale. On August 6, 2012, Niraj drove Calabrese and the defendant to the area of Vitalis’ home and dropped them off down the road. Calabrese and the defendant ran through the woods to Vitalis’ home. They watched the home and saw Vitalis’ mother come home. At
“After freeing herself, Vitalis’ mother called 911. State police . . . arrived at the scene at approximately 6:14 p.m. and found Vitalis deceased. Some of the drawers in the furniture in Vitalis’ bedroom were pulled out. The police searched the bedroom and found $32,150 . . . 1.7 pounds of marijuana . . . and evidence of marijuana sales.” (Footnote omitted.) State v. Patel, supra, 194 Conn. App. 250–51.
The record reveals the following additional undisputed facts and procedural history. While the police were investigating the Sharon home invasion, Calabrese was arrested and detained on an unrelated charge. While in custody, Calabrese recounted the events that had occurred during the home invasion, including the defendant‘s role, to a jailhouse informant who was surreptitiously recording the conversation. At trial, the state established that Calabrese had invoked his fifth amendment privilege not to testify and introduced, over defense counsel‘s objection, the recording of Calabrese‘s dual inculpatory statement as a statement against penal interest under § 8-6 (4) of the Connecticut Code of Evidence. The state also introduced cell phone site location information, testimony from Calabrese‘s former girlfriend, and other evidence that tended to corroborate the defendant‘s presence at, and involvement in, the Sharon home invasion, as well as evidence establishing that friends and family of the defendant had been unable to make contact with the defendant immediately before, during, and after the period during which the Sharon home invasion occurred. See id., 251-52, 262, 284-89.
The defense advanced theories of alibi and third-party culpability. The defendant‘s older sister, Salony Majmudar, testified that the defendant was visiting her in Boston, Massachusetts, to celebrate an important Hindu holiday when the Sharon home invasion occurred.3 Defense counsel also sought to have Majmudar testify about a purported confession that had been made to her by Niraj‘s brother, Shyam Patel (Shyam), in which
The jury returned a verdict, finding the defendant guilty of murder, home invasion, burglary in the first degree as an accessory, robbery in the first degree as an accessory, conspiracy to commit burglary in the first degree, and tampering with physical evidence, among other charges, and the trial court thereafter rendered judgment in accordance with the jury‘s verdict. See footnote 1 of this opinion. The court imposed a total effective sentence of forty-five years of imprisonment, execution suspended after thirty-five years and one day, and five years of probation.
The defendant appealed from the judgment of conviction, claiming that constitutional and evidentiary errors entitled him to a new trial. See id., 249–50. The Appellate Court affirmed the judgment of conviction. Id., 250, 301. We thereafter granted the defendant‘s petition for certification to appeal, limited to the following issues: (1) whether the Appellate Court correctly concluded that the admission of Calabrese‘s dual inculpatory statement (a) did not violate the defendant‘s confrontation rights under the United States constitution, (b) did not violate the defendant‘s confrontation rights under the Connecticut constitution, and (c) was proper under our code of evidence as a statement against penal interest; and (2) whether the Appellate Court correctly concluded that the trial court had properly excluded Shyam‘s confession. See State v. Patel, supra, 334 Conn. 921 n.22. The defendant‘s constitutional claims are subject to plenary review; see, e.g., State v. Smith, 289 Conn. 598, 618-19, 960 A.2d 993 (2008); whereas his evidentiary claims, which challenge the application, rather than the interpretation, of our code of evidence, are reviewed for an abuse of discretion. See, e.g., State v. Pierre, 277 Conn. 42, 68, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006); see also State v. Saucier, 283 Conn. 207, 218-21, 926 A.2d 633 (2007) (contrasting standards of review).
I
The defendant challenges the admission of Calabrese‘s dual inculpatory statement on both constitutional and evidentiary grounds. We agree with the Appellate Court that the trial court properly admitted this statement.
The following additional undisputed facts provide context for our resolution of this issue. Calabrese was arrested on August 29, 2013, on drug charges unrelated
The following day, Early was brought back to the corrections intelligence office. Early confirmed that he was willing to record Calabrese. A corrections official then placed a call to a state police official, who spoke with Early to establish that he had no knowledge about the incident of interest and directed Early to get details about it if he could.5 When Early returned to his cell, equipped with a hidden recording device, he gradually turned the conversation to the subject of the home invasion that Calabrese had mentioned the prior night, telling Calabrese that he “want[ed] to hear how that shit went down . . . .” Calabrese volunteered many details, including the fact that the defendant participated, but Early repeatedly asked questions to obtain further details or clarification about the incident.
Calabrese‘s account ascribed the following actions and intentions to the participants. He and the defendant went to Sharon with the intention of robbing a drug dealer (Vitalis). Calabrese entered Vitalis’ home first, because he was only one with a gun. After they entered and saw Vitalis’ mother, Calabrese grabbed her and started to tie her hands. Calabrese directed the defendant to finish the task and to watch her while Calabrese confronted Vitalis upstairs. Calabrese did not plan to shoot Vitalis but did so after Vitalis threatened him with a knife and tried to grab the gun. The defendant fled when he heard the gunshots, allowing Vitalis’ mother to make her way to a phone and to call the police. Calabrese‘s search yielded only $70 and a small amount of marijuana before he had to flee. Calabrese was able to catch up with the defendant because the defendant had stopped to look for his cell phone, which he had dropped while running through a swampy area
At trial, the state offered the recording of Calabrese‘s dual inculpatory statement into evidence for its truth; therefore, it indisputably is hearsay. See
A
The parties disagree as to whether the United States Supreme Court has in fact settled the issue of whether the admission of a hearsay statement to a jailhouse informant inculpating the declarant and a codefendant violates the codefendant‘s rights under the confrontation clause of the sixth amendment to the United States constitution. The defendant contends that the court answered that question in the negative only in dicta, under distinguishing circumstances, and that subsequent decisions that have expanded the framework of this inquiry by recognizing that the identity and actions of the questioner must be considered. The defendant argues that he prevails under the current framework because Early, acting as an agent of law enforcement, effectively interrogated Calabrese for the primary purpose of obtaining testimony to be used in a criminal prosecution.
There can be no doubt that the court‘s confrontation clause jurisprudence has vexed courts as applied to particular circumstances, a point we elaborate on in part I B of this opinion. The present case, however, is one in which we have confidence as to how the court would resolve the issue presented, namely, in favor of the state. The federal constitutional issue, therefore, is our starting point. See State v. Purcell, 331 Conn. 318, 334 n.11, 203 A.3d 542 (2019) (noting that we address federal constitution first when “we can predict to a reasonable degree of certainty how the United States Supreme Court would resolve the issue“); see also State v. Taupier, 330 Conn. 149, 166 n.14, 193 A.3d 1 (2018) (concluding that it was more efficient to address federal claim first because review of federal precedent would be necessary under state constitutional framework in State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992)), cert. denied, ___ U.S. ___, 139 S. Ct. 1188, 203 L. Ed. 2d 202 (2019).
In prior cases, we have chronicled the development of the court‘s confrontation case law, including its sea change from a focus on whether the hearsay statement bore adequate “indicia of reliability“; (internal quotation marks omitted) Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); to a focus on whether the statement is “[t]estimonial” in nature under Crawford v. Washington, supra, 541 U.S. 59, and its progeny. See generally State v. Rodriguez, 337 Conn. 175, 226–27, 252 A.3d 811 (2020) (Kahn, J., concurring).7 Although the court has “labored to flesh out what it means for a statement to be ‘testimonial’ “; Ohio v. Clark, 576 U.S. 237, 244, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015); it has deemed the term to include not only ex parte in-court testimony and formalized testimonial materials such as affidavits and depositions but also “[p]olice interrogations . . . .” Crawford v. Washington, supra, 51-53. The court used that term in its colloquial, rather than its strictly legal, sense to include a “recorded statement, knowingly given in response to structured police questioning . . . .” Id., 53 n.4. Such statements “are testimonial when the circumstances objectively indicate that . . . the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Internal quotation marks omitted.) Ohio v. Clark, supra, 244, quoting Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
In dicta in Crawford and Davis, the court indicated that statements of a coconspirator to a fellow inmate and to an undercover agent inculpating the defendant were clearly nontestimonial. The court asserted that its newly adopted testimonial rubric would not alter the results reached in its prior cases. See Davis v. Washington, supra, 547 U.S. 825-26; Crawford v. Washington, supra, 541 U.S. 58. Two of the cases cited by the court as examples were Dutton v. Evans, 400 U.S. 74, 77–78, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970) (plurality opinion),
Post-Crawford, federal courts and state courts have consistently rejected claims that the admission of inmate to inmate or inmate to informant statements inculpating a defendant, whether recorded or not, violated his or her confrontation rights. See, e.g., United States v. Veloz, 948 F.3d 418, 430-32 (1st Cir.), cert. denied, ___ U.S. ___, 141 S. Ct. 438, 208 L. Ed. 2d 133 (2020); United States v. Dargan, 738 F.3d 643, 650–51 (4th Cir. 2013); United States v. Dale, 614 F.3d 942, 954–56 (8th Cir. 2010), cert. denied, 563 U.S. 918, 131 S. Ct. 1814, 179 L. Ed. 2d 774 (2011), and cert. denied sub nom. Johnson v. United States, 563 U.S. 919, 131 S. Ct. 1814, 179 L. Ed. 2d 775 (2011); United States v. Smalls, 605 F.3d 765, 778 (10th Cir. 2010); People v. Arauz, 210 Cal. App. 4th 1394, 1402, 149 Cal. Rptr. 3d 211 (2012); State v. Nieves, 376 Wis. 2d 300, 326–27, 897 N.W.2d 363 (2017). Courts also have routinely held that statements made unwittingly to a government agent or an undercover officer, outside of the prison context, are nontestimonial.8 See, e.g., Brown v. Epps, 686 F.3d 281, 287 and n.35 (5th Cir. 2012) (citing cases reaching this conclusion). Although some of these cases simply relied on the United States Supreme Court‘s dicta; see, e.g., United States v. Veloz, supra, 431–32; United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004), cert. denied, 543 U.S. 1079, 125 S. Ct. 938, 160 L. Ed. 2d 821 (2005); many others reasoned that such statements could not have been given for the purpose of proving past facts relevant to a prosecution because the declarant did not know that he was speaking to an informant or an undercover officer. See, e.g., United States v. Dargan, supra, 646, 650-51; State v. Nieves, supra, 326-27.
The defendant contends, however, that the court‘s more recent confrontation clause jurisprudence suggests that the court would now reject this dicta. Our review of this case law confirms, rather than undermines, the vitality of this dicta.
”Crawford and Davis did not address whose perspective matters—the declarant‘s, the interrogator‘s, or
This point was underscored and elaborated on in Michigan v. Bryant, supra, 562 U.S. 344, when the court stated: “The Michigan Supreme Court correctly understood that this inquiry is objective. . . . Davis uses the word ‘objective’ or ‘objectively’ no fewer than eight times in describing the relevant inquiry. . . . ‘Objectively’ also appears in the definitions of both testimonial and nontestimonial statements that Davis established. . . .
“An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the ‘primary purpose of the interrogation.’ The circumstances in which an encounter occurs—e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.” (Citations omitted; emphasis added; footnote omitted.) Id., 360.
The court‘s most recent confrontation clause case exemplifies this objective, totality of circumstances approach, as well as the significance of the formality of the encounter in making that determination. See Ohio v. Clark, supra, 576 U.S. 237. In Clark, the court considered the statements of a three year old child, in response to his teachers’ questions, in which he identified his mother‘s boyfriend as the perpetrator of injuries discovered by the teachers. Id., 240. The teachers were man-
The court first summarized its confrontation clause jurisprudence, noting that the primary purpose test has evolved to require consideration of “all of the relevant circumstances.” (Internal quotation marks omitted.) Id., 244. One such circumstance it identified “is the informality of the situation and the interrogation. . . . A formal [station house] interrogation, like the questioning in Crawford, is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused.” (Citation omitted; internal quotation marks omitted.) Id., 245.
The court in Clark recognized that statements to individuals who are not law enforcement officers “could conceivably raise confrontation concerns“; id., 246; but cautioned that “[s]tatements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.” Id., 249. Thus, the fact that the child was speaking to his teachers “remains highly relevant. Courts must evaluate challenged statements in context, and part of that context is the questioner‘s identity.” Id., 249; see also id. (“the relationship between a student and his teacher is very different from that between a citizen and the police“).
In concluding that the primary purpose of the encounter was not to gather evidence for the defendant‘s prosecution but to protect the child, the court in Clark pointed to the following facts: “At no point did the teachers inform [the child] that his answers would be used to arrest or punish his abuser. [The child] never hinted that he intended his statements to be used by the police or prosecutors.9 And the conversation between [the child] and his teachers was informal and spontaneous. The teachers asked [the child] about his injuries immediately upon discovering them, in the informal setting of a preschool lunchroom and classroom, and they did so precisely as any concerned citizen would talk to a child who might be the victim of abuse. This was nothing like the formalized [station house] questioning in Crawford or the police interrogation and battery affidavit in Hammon [v. Indiana, which was decided together with Davis v. Washington, supra, 547 U.S. 813].” 10 (Footnote added.) Id., 247.
Consistent with Bryant, the court in Clark thus relied exclusively on the objectively manifested facts—what was said, who said it, how it was said, and where it was said. Nothing indicates that, contrary to Bryant,
The court‘s reasoning in Bryant and Clark thus confirms the court‘s dicta characterizing the statements in Dutton and Bourjaily made to persons who harbored secret intentions to obtain evidence to be used at trial as clearly nontestimonial.12 Like the statements in Dutton and Bourjaily, Calabrese‘s statement was elicited in circumstances under which the objectively manifested purpose of the encounter was not to secure testimony for trial. Calabrese made his statements in an informal setting, his prison cell, to his cellmate, who undoubtedly actively questioned the defendant but did so in an evidently sufficiently casual manner to avoid alerting Calabrese that his statement was going to be relayed to law enforcement. Cf. United States v. Dargan, supra, 738 F.3d 650-51 (statements by defendant‘s coconspirator to cellmate were clearly nontestimonial because they were made “in an informal setting—a scenario far afield from the type of declarations that represented the focus of Crawford‘s concern” and declarant “had no plausible expectation of ‘bearing witness’ against anyone“). The admission of Calabrese‘s dual inculpatory statement, therefore, did not violate the defendant‘s confrontation rights under the federal constitution.
B
We next turn to the defendant‘s confrontation clause challenge under
In State v. Geisler, supra, 222 Conn. 684–85, this court identified factors to be considered to encourage a principled development of our state constitutional jurisprudence. Those six factors are (1) persuasive relevant federal precedents, (2) the text of the operative constitutional provisions, (3) historical insights into the intent of our constitutional forebears, (4) related Connecticut precedents, (5) persuasive precedents of other state courts, and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise described, relevant public policies. Id., 685; accord Feehan v. Marcone, 331 Conn. 436, 449, 204 A.3d 666, cert. denied, ___ U.S. ___, 140 S. Ct. 144, 205 L. Ed. 2d 35 (2019).
The defendant concedes that the first, second, and fifth factors do not support a more protective interpretation under state law. The text of the two clauses are nearly identical. Compare
With regard to the third and fourth factors, historical insights and Connecticut precedent, the defendant expressly conceded before the Appellate Court that these factors also do not favor his position. This court‘s first confrontation clause case, in 1921, took the position that “[t]he underlying reasons for the adoption of this right in the [f]ederal [c]onstitution and in [s]tate [c]onstitutions, and the principles of interpretation
The defendant does not expressly concede the third and fourth Geisler factors to this court as he did before the Appellate Court, but he acknowledges this case law in his brief to this court. In lieu of an argument regarding the significance of that case law, the defendant emphasizes the historical fact that third-party statements against penal interest constituted inadmissible hearsay at the time of the framing, as well as for an extended period thereafter. See, e.g., Bruton v. United States, 391 U.S. 123, 128 n.3, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); State v. Schiappa, 248 Conn. 132, 147 and n.18, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). See generally E. Schaerer, “Proving the Constitution: Burdens of Proof and the Confrontation Clause,” 55 U. Rich. L. Rev. 491, 494 (2021) (“[a]t the framing, hearsay was more strictly prohibited at trial, and courts recognized few hearsay exceptions“). This fact has no logical connection, however, to the defendant‘s proposed confrontation standard.15 The defendant‘s testimonial standard would not categorically preclude such statements, whether they were dual inculpatory statements or not; it would only preclude such statements when the declarant is unavailable for cross-examination and the reasonable expectation of either the declarant or the listener is to establish or to prove past events potentially relevant to a later criminal prosecution. Reliance on the lack of a recognized exception for these statements at the time of the framing is also in tension with the defendant‘s representation that he does not seek to overrule Crawford, which rejected the Roberts framework, which considered whether the statement fell within a “firmly rooted” hearsay exception. See Ohio v. Roberts, supra, 448 U.S. 66; see also State v. Nieves, supra, 376 Wis. 2d 316-19 (citing sources addressing admission of dual inculpatory statements post-Crawford and acknowledging that Bruton16 doctrine regarding confrontation violation arising from admission of such statements as against third party survives only as to testimonial statements).
The defendant‘s state constitutional claim, thus, effectively rests exclusively on the sixth Geisler factor, public policy. He identifies the following considerations. First, the defendant argues that the United States Supreme Court is not infallible. The sea change from Roberts’ reliability standard to Crawford‘s testimonial standard demonstrates this reality, as does the fact that the court‘s confrontation clause case law continues to be in flux. Second, the defendant seeks a modified interpretive standard—an additional layer of prophylaxis to prevent a significant risk of deprivation of confrontation
We are not persuaded that these arguments are sufficient to carry the day under the present circumstances. We previously have relied on policy considerations similar to those mentioned by the defendant but have always cited to other Geisler factors that supported the rule we adopted. See, e.g., State v. Purcell, supra, 331 Conn. 342-46 (explaining that we were adopting broader prophylactic rule not expanding constitutional right, but also citing other Geisler factors that supported rule); State v. Linares, 232 Conn. 345, 379-80, 655 A.2d 737 (1995) (concluding that United States Supreme Court‘s rationale for departing from prior, more protective standard was unsound but also citing other Geisler factors that supported our rule). Although the need to fill a “gap” in the court‘s confrontation jurisprudence to resolve a case may provide a compelling policy argument, even in the absence of other supporting Geisler factors, our discussion in part II explains why the gap identified by the defendant does not exist. None of the defendant‘s other policy arguments rises to a similar level of necessity. Some of his policy arguments, e.g., that the court does not always reach the correct result, could apply in any case. In sum, it is clear that the defendant cannot prevail under a traditional Geisler analysis. His state constitutional claim under the confrontation clause, therefore, fails.18
We end this discussion, however, with a strong note of caution. Although the defendant cannot prevail under our state constitution in the present case, we might be compelled to reach a different result under a slight variation of facts. The circumstances under which Calabrese‘s statement was elicited implicate several concerns identified by the court in Crawford and its progeny. Crawford recognized that “[i]nvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse . . . .” Crawford v. Washington, supra, 541 U.S. 56 n.7. The court in Davis also cautioned that law
Our concerns are tempered in the present case, however, for a few reasons. There was no evidence presented suggesting any involvement by the Office of the State‘s Attorney in orchestrating the recording or directing the inquiry. Nor is there evidence that any police official coached Early on what questions to ask or what facts they were seeking to learn. The trial court did not abuse its discretion by crediting Early‘s testimony that he was not given any information about the crime and that Calabrese first raised the subject of his involvement in the Sharon home invasion.21 Because the exchange was recorded, the trial court was able to ascertain the extent to which, if any, Calabrese‘s answers may have been shaped or coerced by Early. See M. Berger, “The Deconstitutionalization of the Confrontation Clause: A Proposal for a Prosecutorial Restraint Model,” 76 Minn. L. Rev. 557, 609 (1992) (noting that recording coconspirators’ statements made to government agent or infor-
C
Because we have concluded that the admission of Calabrese‘s dual inculpatory statement did not violate the defendant‘s federal or state confrontation rights, the admissibility of the statement is, therefore, limited only by the rules of evidence. See, e.g., Ohio v. Clark, supra, 576 U.S. 245. Calabrese‘s statement was admitted under the hearsay exception for statements against penal interest. See
Admission of a hearsay statement pursuant to
Our code of evidence directs trial courts to consider the following factors in assessing the trustworthiness of the statement: “(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.”
The trial court suggested that the fact that the statement was made “to a fellow inmate who appeared to the defendant [to] be a fellow gang member, and one who was facing serious charges,” rendered the statement more trustworthy. The record does not support a factual predicate for this conclusion, and the law does not support its reasoning. Calabrese was not a fellow gang member.22 He unambiguously informed Early that he was not a “blood,” although “all [his] boys” belonged to the gang, and he did not join because he “really [didn‘t] give a shit” about belonging to the gang.
The fact that Early and Calabrese were fellow inmates, in and of itself, does not establish that they shared the type of relationship of trust and confidence that demonstrates the trustworthiness of the statement. Cf. State v. Thompson, 305 Conn. 412, 435, 45 A.3d 605 (2012) (statement was trustworthy when made to fellow inmate who was known to declarant for several years before incarceration, and with whom declarant had become “reasonably close” in two months of incarceration prior to making of statement (internal quotation marks omitted)), cert. denied, 568 U.S. 1146, 133 S. Ct. 988, 184 L. Ed. 2d 767 (2013); State v. Camacho, supra, 282 Conn. 361 (statement made “to people with whom [declarant] had a trusting relationship“); State v. Pierre, supra, 277 Conn. 69 (statement made to friend, with whom declarant “routinely socialized“); State v. Bryan, 193 Conn. App. 285, 304-306, 219 A.3d 477 (relationship of trust and friendship when declarant had known person to whom he made statement for approximately ten years, had stayed at person‘s home, and had committed robbery with that person), cert. denied, 334 Conn. 906, 220 A.3d 37 (2019). Our appellate case law indicates that “[s]tatements made by a declarant to fellow inmates have been considered untrustworthy. See State v. DeFreitas, 179 Conn. 431, 453, 426 A.2d 799 (1980) (declarations against penal interest are untrustworthy when, inter alia, confessions made to fellow inmate); Morant v. State, 68 Conn. App. 137, 172, 802 A.2d 93 (exclusion of [third-party] confession proper when,
inter alia, declarant confided not in close friends but in fellow inmate) (overruled in part on other grounds by Shabazz v. State, 259 Conn. 811, 830 n.13, 792 A.2d 797 (2002)), cert. denied, 260 Conn. 914, 796 A.2d 558 (2002). The fact that the statements allegedly made by [the declarant] were made to a fellow inmate, with whom [the declarant] did not have a close relationship, weighs against their trustworthiness.” (Emphasis added.) Martin v. Flanagan, 107 Conn. App. 544, 549–50, 945 A.2d 1024 (2008).State v. Smith, supra, 289 Conn. 598, on which the state relies, is not to the contrary. In Smith, we concluded that the trial court‘s admission of an inmate‘s recorded statement, when the court found that it was made in a private manner to a cellmate in whom the declarant would be likely to confide, was not an abuse of discretion. Id., 630, 632-33. It was not our intention in Smith to adopt a blanket rule or presumption that a relationship between inmates, or even cellmates, is one of trust and confidence simply because of their shared circumstance. The inmates in Smith were both facing drug charges and had been cellmates for perhaps as long as one month when the statements were made. Id., 615.
In the present case, Early and Calabrese were strangers who were cellmates for less than twenty-four hours when the statement was made. Early‘s purported status as a gang member could have induced Calabrese to embellish his criminal history to send a message that neither Early nor any of his fellow gang members in the facility should mess with him. There is no basis in the record to conclude that, in this fleeting period, a relationship of trust and confidence developed.
The two remaining factors, however, corroboration and the degree to which the statement was against Calabrese‘s penal interest, overwhelmingly weigh in favor of trustworthiness. Calabrese‘s account was consistent with the physical evidence in almost all material respects; the only material inconsistency was his claim that Vitalis had pulled a knife on him when no knife was found at the scene. There are numerous reasons why Calabrese may have intentionally fabricated the existence of the knife.23 The state also produced independent evidence to corroborate Calabrese‘s identification of the defendant as his accomplice and Calabrese‘s presence at the scene—cell phone location information and a statement that Calabrese had made to his girlfriend before the crime, among other evidence. Although the defendant points to certain aspects of Calabrese‘s account that are inconsistent with the evidence (i.e., time of day, which door was the point of entry, etc.), none of these facts is material. It is unsurprising that such inconsequential details could have been misremembered more than one year after the events occurred.
The extent to which the statement is against Cala
II
The defendant‘s final challenge is to the trial court‘s exclusion of Shyam‘s confession to the defendant‘s sister, Majmudar, which the defendant offered as a statement against penal interest under
The principles that we articulated in part I C regarding the hearsay exception for statements against penal
The trial court asked Majmudar who she had told about Shyam‘s confession. She replied that she had told only the defendant, after he was released on bond.
The court sustained the prosecutor‘s objection to the admission of the testimony pertaining to Shyam‘s confession. The court found that, in light of the totality of the circumstances under which the statement was purportedly made, the statement was untrustworthy and particularly lacking in sufficient corroboration. The court cited the following factors. The court pointed out that the alleged confession was made thirteen months after the crime and that Majmudar claimed to have told no one except the defendant about the alleged confession for more than three and one-half years after the statement was made. It reasoned: “Both of these delays provided her with years to learn the details of the prosecution‘s theory of the case and, if she wished
The court further reasoned that “[t]he details of the statement ... make it untrustworthy and even bizarre.” The court questioned why Shyam would volunteer trivial details such as which vehicle he had driven,26 and found it “[e]specially suspect” that Majmudar asked Shyam if Calabrese used the defendant‘s phone during the robbery. See footnote 26 of this opinion. The court noted that there was no evidence explaining how Majmudar would have known that phones played any role in the robbery—“for all she knew, the plan was hatched by coconspirators in a bar, immediately carried out and no phones were used at all.” The court found it nonsensical that, if Calabrese and Shyam decided not to use their own phones during the robbery, they would use the phone of someone with whom they are associated or related, instead of untraceable phones.
The court also pointed out that evidence demonstrated that “Vitalis had significant contacts and dealings with Niraj ... and Shyam ... which explains ... at least in part, why Niraj ... and Shyam ... did not enter that home, because ... despite masks, through their voices in the prior context, it would have been readily recognized, and that would explain why Niraj ... solicited others who [did] not have contact with ... Vitalis to carry out the robbery. ... [T]hat evidence alone points more to ... Calabrese and this defendant than it does to Shyam ... having been the person to enter the Vitalis home. The circumstances surrounding the event are far more consistent with [the]
The Appellate Court agreed that Shyam‘s statement “was against [his] penal interest to a significant extent, such that this factor weighs in favor of a finding of trustworthiness,” but concluded that the trial court had not abused its discretion in concluding that the remaining factors clearly weighed against such a finding. State v. Patel, supra, 194 Conn. App. 280, 283. We agree that the trial court‘s exclusion of the statement was not an abuse of discretion.27
The defendant‘s arguments for the admission of the statement are unpersuasive. He suggests that, with regard to the temporal factor, it is more important that Shyam‘s confession was made shortly after the arrests in connection with the Sharon home invasion than the fact that it was made more than one year after the incident. The defendant cites no case law supporting this proposition, and this proposition is contradicted by the rationale for the temporal factor—that a lapse of time following the crime provides a declarant with opportunity for reflection and contrivance. See State v. Pierre, supra, 277 Conn. 70. The defendant‘s emphasis on the close relationship between the cousins, Majmudar and Shyam, and on the case law recognizing that a blood relationship may be one of trust; see, e.g., State v. Rivera, supra, 268 Conn. 369; misses the point. The trial court reasonably pointed to the stronger relationship between the defendant and his sister, and her loyalty to him over Shyam.
Most of the evidence that the defendant characterizes as corroborative indicates only that Shyam may have played some role in connection with the incident, not that Shyam was present in the Vitalis home.28 We previously have emphasized that “[t]he corroboration requirement for the admission of a [third-party] statement against penal interest is significant and goes beyond minimal corroboration.” (Emphasis omitted; internal quotation marks omitted.) State v. Lopez, supra, 254 Conn. 319. The only evidence that could corroborate Shyam‘s presence at the Vitalis home invasion is one of the several statements given by Vitalis’ mother to the police about the incident. In January, 2016, more than three years after the incident, Rita Vitalis told the police that she believed that one of the masked intruders was an Indian male and believed that this person was Shyam. She knew Niraj and Shyam but not the defendant. In other statements, however, she reported that she believed that both of the intruders were white, that they could be Hispanic, or that she did not know who either intruder was with certainty. The trial court, therefore, reasonably concluded that Shyam‘s statement was not sufficiently trustworthy to be admitted as a statement against penal interest.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.