State v. VillanuevaState v. Villanueva
Syllabus
Convicted of murder, carrying a pistol without a permit, and criminal possession of a firearm in connection with the shooting death of the victim, the defendant appealed to this court. The defendant claimed that the trial court had deprived him of his constitutional right to present a defense by declining to instruct the jury on the adequacy of the police investigation into the victim’s murder. He also claimed that the trial court had violated his right to due process under the state constitution by admitting into evidence an out-of-court identification of him by B, an eyewitness to the shooting, and his constitutional right to confrontation by admitting certain testimony of a medical examiner, N, who did not personally perform the victim’s autopsy. Held:
There was no merit to the defendant’s claim that he was deprived of his right to present a defense when the trial court declined to instruct the jury that it could consider inadequacies in the investigation of the victim’s murder by the police.
To the extent that the defendant’s investigative inadequacy claim was premised on the contention that the investigation by the officers responding to the crime scene resulted in certain lapses, this court declined to review that portion of the defendant’s claim because defense counsel did not raise it in the trial court.
Moreover, as to the portion of the defendant’s claim regarding the failure of the police to investigate another individual as an alternative suspect and to perform a victimology, there was no evidence in the record to support these contentions.
The trial court did not violate the defendant’s state constitutional right to due process by denying the defendant’s motion to preclude B’s out-of-court identification of the defendant.
The defendant could not prevail on his claim that the identification procedure employed by the police was suggestive and that the resulting identification was unreliable on the ground that, one week before a police officer administered the photographic array, another police officer had allegedly pressured B to identify someone or face possible prosecution for the victim’s murder, as B provided uncontroverted testimony at trial that the officer administering the photographic array reassured her that it was fine if she did not identify anyone from the array and that she did not select the defendant’s photograph due to coercion or the potential threat of prosecution.
Furthermore, the failure of the police officer administering the identification procedure to instruct B, in accordance with the statute (
The trial court did not violate the defendant’s sixth amendment right to confrontation by allowing N to testify regarding the victim’s injuries and cause of death, even though N did not personally perform the victim’s autopsy.
To the extent that the defendant’s claim was based on his contention that a certain autopsy photograph admitted into evidence communicated the apparent conclusions of W, the medical examiner who conducted the autopsy and that N’s testimony interpreting that photograph violated his right to confront W, the confrontation clause bars only the introduction of hearsay, and this court concluded that the autopsy photograph itself was not hearsay and that N’s testimony about the victim’s wounds as depicted in the photograph was based solely on her review and interpretation of the photograph rather than on the findings and conclusions W included in the autopsy report.
Moreover, even if some of N’s other testimony regarding the autopsy and the victim’s injuries constituted improperly admitted testimonial hearsay, the error was harmless beyond a reasonable doubt, as the improperly admitted evidence could not have affected the verdict because there was no dispute regarding the cause of the victim’s death and the evidence of the defendant’s guilt was overwhelming.
Argued April 16—officially released July 15, 2025
Substitute information charging the defendant with the crimes of murder, carrying a pistol without a permit, and criminal possession of a weapon, brought to the Superior Court in the district of New Haven, where the court, Alander, J., denied the defendant’s motion to preclude a witness’ out-of-court identification; there-after, the charges of murder and carrying a pistol without a permit were tried to the jury before Alander, J.; verdict of guilty; subsequently, the charge of criminal possession of a weapon was tried to the court, Alander, J.; finding of guilty; thereafter, the court, Alander, J., rendered judgment in accordance with the verdict and the finding, from which the defendant appealed to this court. Affirmed.
Denis J. O’Malley III, assistant public defender, for the appellant (defendant).
Laurie N. Feldman, assistant state’s attorney, with whom were Melissa R. Holmes, deputy assistant state’s attorney, and, on the brief, John P. Doyle, state’s attorney, and Seth R. Garbarsky, senior assistant state’s attorney, for the appellee (state).
Opinion
DANNEHY, J. The defendant, Davis Roman Villanueva, appeals1 from the judgment of conviction, rendered after a jury trial, of murder in violation of
The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of this appeal. In the early morning hours of October 4, 2020, the defendant shot and killed the victim outside Mr. Bentley’s Cafe´ on Grove Street in Meriden. The entire incident was captured by various video surveillance cameras connected to the cafe´ . At approximately 12 a.m. that morning, Diana Baez, an eyewitness to the shooting, had gone with her siblings and brother-in-law to a private, after-hours club located on the second floor of the cafe´ . There, she interacted with the defendant but never exchanged names with him. At approximately 4 a.m., Baez and her family decided to go to an all-night diner and invited the defendant to accompany them. As the group was leaving the club, they ran into a former boyfriend of Baez’ sister, Ramphis Pacheco, who was extremely intoxicated and acting belligerent. For his own good, the family convinced Pacheco to leave with them.
The victim arrived at the club just as Baez’ group was leaving. At the door, Pacheco threw his arm around the victim and started hassling him. The victim told Pacheco to leave him alone and go home. In response, the defendant threw a beer can at the victim and charged at him. Baez and her siblings pulled the defendant off the victim, after which the defendant ran to his red pickup truck, which was parked in an empty lot next to the cafe´ . When he got there, he retrieved something from inside the truck. As he was doing this, Baez walked up behind him, and they began talking. Within seconds, the victim appeared and started walking diagonally across the lot in the direction of Foster Court, a no outlet road where he had left his car. Foster Court runs parallel to Grove Street along the west side of the lot where the defendant’s truck was parked. Footage from the cafe´ ’s surveillance cameras shows that, when the defendant saw the victim, he ran toward him, struck him forcefully on the head and then shot him twice. The footage also shows the victim’s body jerk violently after the first shot was fired, at which point Baez and her brother-in-law tried to intervene on the victim’s behalf. After shooting the victim, the defendant jumped into his truck and sped away. Baez did not see a gun in the defendant’s hand until after the shooting, although she did see a muzzle flash when the weapon discharged. The victim ran away after the shooting, which led Baez to assume he was uninjured. In fact, one of the bullets severed a major artery in his abdomen.
Meriden Police Officer Zackary Golebiewski arrived at the scene seconds after the shooting. Golebiewski heard two gunshots from where he was parked a short distance away and saw the defendant’s red truck speeding away. Just as he heard the gunshots, Golebiewski saw Pacheco cross Grove Street and walk toward Union Street. He then saw Pacheco’s grey Chevrolet Malibu turn south on Grove Street and then take an immediate right on Springdale Avenue. Golebiewski advised police dispatch of what was happening at the cafe´ and then proceeded to search for the defendant’s red truck. While enroute, Golebiewski pulled alongside Baez’ family and asked whether they too had heard gunshots and whether the red truck was involved in the shooting. They responded falsely that the shots had come from an area west of the cafe´ and that the
With the help of a phone locator application, the victim’s girlfriend found the victim’s body three hours later, lying next to his car on Foster Court, about forty feet from where the defendant had shot him. Because the victim’s gunshot wounds were not immediately incapacitating, he would have been able to walk or run for one or two minutes before succumbing to his injuries.
Four days later, on October 8, 2020, two Meriden police detectives visited Baez at her Manchester apartment, having identified her from the cafe´ ’s surveillance video footage. During the interview, they told Baez that she could be charged with conspiracy to commit murder or hindering if she did not reveal the name of the person who shot the victim. Baez told them that she had never met the shooter prior to the night in question, that they had not exchanged names that evening, and that, if she had known that the victim had been shot, she would have summoned help immediately.
As part of their investigation, the police collected several beer cans from near the cafe´ ’s entrance, where the shooter was seen on the surveillance video footage throwing a can of beer at the victim. A DNA mixture collected from one of the cans included the defendant’s DNA, with a profile 100 billion times more likely to occur if it originated from the defendant and an unknown individual than from two unknown individuals.
Within days of the murder, Lieutenant Noel Perez Crespo, a twenty-eight year veteran of the Puerto Rico police who had known the defendant his entire life, received a tip from an informant that the defendant had murdered a man in Meriden. Meriden police sent Crespo a still photograph of the defendant taken from the sur-veillance footage. Crespo identified the defendant immediately from that photograph.
A few days later, Baez identified the defendant through a double-blind, sequential photographic array procedure conducted by an officer from the Manchester Police Department. After the identification, Baez informed the officer that she was not 100 percent certain that the person she identified was the person who shot the victim because the shooter was wearing eyeglasses on the night in question, whereas none of the men in the photographic array was wearing glasses. The defendant was subsequently arrested in Puerto Rico and extradited to Connecticut to stand trial for the victim’s murder. At trial, Baez did not identify the defendant. When asked whether the person in the surveillance footage and whom she had identified in the photographic array was present in the court room, Baez replied, ‘‘[n]o.’’2
I
The defendant first claims that the trial court deprived him of his right to present a defense by declining to instruct the jury that it could consider inadequacies in the police investigation in determining whether the state had proven his guilt beyond a reasonable doubt. We disagree.
The following additional facts are relevant to this claim. Near the end of the trial, the court, Alander, J., conducted a charging conference at which defense counsel requested that the court provide the jury with an investigative inadequacy instruction. Counsel requested the instruction ‘‘on the theory that . . . there were multiple failures’’ in the police investigation. The court asked defense counsel if she could be more specific as to the nature of the alleged failures. Counsel replied that there was a failure to inspect the victim’s cell phone. When the court responded that, according to the testimony, the victim’s phone was sent to the Federal Bureau of Investigation for forensic analysis, defense counsel argued that the prosecutor should have presented evidence concerning the results of that analysis. She further stated, ‘‘I’m not sure that we necessarily need to specifically identify the cell phone, but I think it’s a . . . broader question of whether or not the police failed to inspect the . . . evidence that was seized.’’ The trial court replied, ‘‘[w]ell, there needs to be some evidence that they didn’t . . . evaluate evidence that was seized. Right? I mean, there needs to be some evidence of an inadequate investigation before I can give the charge. So, that’s what I’m trying to understand. What evidence is there that you’re claiming in this case . . . arguably . . . shows an inadequate investigation?’’ Defense counsel responded that there was testimony that, ‘‘in . . . due course, they would have done a victimology [which is a study that] . . . look[s] into the victim . . . [to determine] whether or not he had a criminal history, whether or not he had any enemies on the street. And . . . there was no evidence that [this] was done in this case.’’ She further argued that there was no evidence that the police investigated alternative suspects.
At this point, the prosecutor interjected that there was ‘‘no evidence at all that [any of this] wasn’t done,’’ that, in fact, all of it had been done, and that, in order to instruct the jury on investigative inadequacy, there must be evidence of a specific investigative lapse or a failure on the part of the police. The prosecutor further argued that the defense had every opportunity at trial to adduce evidence that the state had failed to investigate other suspects, perform a victimology, or examine the victim’s cell phone, but failed to do so. Defense counsel responded that it was not the defendant’s burden ‘‘to prove or disprove anything’’ and that it was incumbent on the state to present evidence that the police performed an adequate investigation.
The following legal principles guide our analysis of this claim. ‘‘In determining whether the trial court improperly refused a request to charge, [w]e . . . review the evidence presented at trial in the light most favorable to supporting the . . . proposed charge. . . . A request to charge [that] is relevant to the issues of [a] case and [that] is an accurate statement of the law must be given. . . . If, however, the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury. . . . Thus, a trial court should instruct the jury in accordance with a party’s request to charge [only] if the proposed instructions are reasonably supported by the evidence.’’ (Internal quotation marks omitted.) State v. Ashby, 336 Conn. 452, 497–98, 247 A.3d 521 (2020).
‘‘As a general rule, a defendant is entitled to have instructions on a defense for which there is evidence produced at trial to justify the instruction, no matter how weak or incredible the claim.’’ State v. Varszegi, 236 Conn. 266, 282, 673 A.2d 90 (1996). Thus, ‘‘[i]f [a] defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction. . . . The defendant’s right to such an instruction is founded on the principles of due process. . . . Before an instruction is warranted,
On appeal, the defendant argues that the trial court incorrectly concluded that the evidence was insufficient to warrant an investigative inadequacy instruction. He contends that a defendant is entitled to a theory of defense instruction no matter how weak or incredible the evidence supporting it may be and that the evidence in the present case ‘‘more than satisfied’’ this low threshold. In particular, the defendant claims that the following evidence warranted the instruction: (1) Golebiewski chose to pursue the red pickup truck rather than interview witnesses, namely, Baez and her family, ‘‘even though he ‘did not know what direction the truck went in,’ ’’ (2) those same witnesses ‘‘told him they heard gunshots [coming] from the west,’’ which was the direction of Foster Court, and yet he and his fellow officers limited their search to the parking lot next to the cafe´ , (3) despite stopping Pacheco’s vehicle shortly after the shooting, ‘‘the police failed to investigate [him] as a suspect,’’ and (4) no witness testified that a victimology was performed, even though a Meriden police officer testified that a victimology is ‘‘ ‘very important’ ’’ in homicide investigations.
As the state argues, and our review of the record confirms, the defendant did not claim in the trial court that investigative lapses on the part of Golebiewski—or any of the other responding officers—supported an investigative inadequacy instruction. Counsel argued that the instruction was warranted on the theory that the police had failed to inspect the victim’s cell phone, perform a victimology, and investigate other suspects. As a result, the trial court was not on notice that the defendant was seeking the instruction on the basis of any investigative error on the part of the responding officers. Because the claim was not raised in the trial court, we decline to review it on appeal.4
As for the defendant’s remaining contentions relating to his investigative inadequacy claim, a review of the record reveals no evidence that the police had failed to investigate Pacheco as an alternative suspect or perform a victimology. Indeed, when asked by the trial court if she could identify any evidence supporting either contention, defense counsel was unable to do so. Instead, she argued that the defendant was not required to present evidence of specific investigative lapses, that it was the state’s burden to prove that the police conducted an adequate investigation, and that the jury could infer an inadequate investigation from the absence of evidence indicating differently. Suffice it to say, the trial court properly rejected these contentions as contrary to settled principles of law. See, e.g., State v. Gomes, 337 Conn. 826, 851, 256 A.3d 131 (2021) (‘‘[c]onducting a thorough, professional investigation is not an element of the government’s case’’ (internal quotation marks omitted)); see also State v. Terwilliger, 294 Conn. 399, 409, 984 A.2d 721 (2009) (defendant must produce
evidence to justify theory of
II
The defendant next claims that the trial court violated his state constitutional right to due process by denying his motion in limine to preclude Baez’ out-of-court identification of him. The defendant argues that the identification was the product of an unnecessarily suggestive identification procedure because the Manchester police officer who administered it failed to instruct Baez, in accordance with
that the police would continue to investigate the
During the probable cause hearing, defense counsel asked to be heard on the defendant’s motion to preclude Baez’ October 14, 2020 out-of-court identification, arguing that the procedure by which the identification was obtained was unnecessarily suggestive because of the omitted instruction and the Meriden police officers’ October 8, 2020 threats of prosecution. With respect to the instruction, defense counsel argued that the photographic array instruction sheet that Baez had signed on October 14, 2020, was incomplete under
the procedure [administered by the Manchester police officer] unnecessarily suggestive . . . ? Do you have any authority for that?’’ When counsel replied that he had no authority, the court permitted him ‘‘to explore with [Baez] the circumstances surrounding the [identification] procedure in an effort to try to lay a [factual] basis for [the claim] . . . .’’
Thereafter, defense counsel asked Baez whether the Meriden police informed her during the October 8, 2020 interview that she ‘‘[was] possibly in trouble for being associated with the murder,’’ to which Baez replied, ‘‘[t]hat’s true.’’ Counsel also asked her whether the police had told her, ‘‘I’m going to find out who did it, and I need your help,’’ to which Baez replied, ‘‘I don’t recall those exact words, but yes.’’ She further stated, ‘‘they . . . ask[ed] me if I had any connections in any way, shape or form with [the defendant]’’ and ‘‘ask[ed] . . . for . . . [my] help in trying to track [him] down . . . .’’ Counsel asked Baez, ‘‘[a]nd you understood from them that, if you didn’t help them, you could be looking at . . . criminal charges, right?’’ Baez replied, ‘‘[t]hat was clear, yes.’’ Counsel then asked Baez whether, when she was asked to look at the photographic array on October 14, 2020, she ‘‘understood that it would be helpful for [her] . . . if [she] could identify somebody from [the] photos?’’ Baez replied, ‘‘[i]t would have been ideal, yes.’’8
‘‘[The Prosecutor]: . . . Safe to say there [were] no threats . . . made by the Manchester cop?
‘‘[Baez]: Absolutely not; he was very helpful.
‘‘[The Prosecutor]: How about the Meriden cop, and I don’t mean at your house . . . on [October 8, 2020], but [rather] when you made the photo identification, did he say once again, hey, we’re going to charge you with murder and all that?
‘‘[Baez]: No, sir.
‘‘[The Prosecutor]: What was the exchange you had with him to the extent you had any exchange?
‘‘[Baez]: They knocked on my door, I opened it. He said hey, [Baez], it’s me again. I was like sure, come on in. He just introduced the Manchester police [officer] and . . . said . . . we have some pictures that we would like to . . . show you. I’m gonna step out of your apartment, and . . . [the Manchester officer is] gonna go over everything with you, and that’s exactly what happened. . . .
‘‘[The Prosecutor]: And then from then on, the Manchester [cop] showed you the pictures and [gave you] instructions . . . ?
‘‘[Baez]: Yes, he read . . . things in depth, and he explained things in depth, and I was completely honest with him . . . [that] I wasn’t sure . . . and he reassured me. He’s like, if you’re not sure, then you’re not sure—you know. There was absolutely no pressure.
‘‘[The Prosecutor]: Okay, and along those lines, did you feel pressure either from the Manchester police officer or from the Meriden detectives to pick someone out of that [photographic] lineup . . . ?
‘‘[Baez]: No.’’
At the conclusion of the hearing, the trial court denied the defendant’s motion to preclude Baez’ identification, concluding that the identification procedure conducted by the Manchester police was not in any way suggestive. In reaching its determination, the court applied the test adopted in State v. Harris, 330 Conn. 91, 131, 191 A.3d 119 (2018), for determining whether an out-of-court identification is admissible under the state constitution. See id., 131. The court found ‘‘zero evidence’’ that the officer who administered the procedure put any pressure on Baez to make an identification or that the procedure did not adhere to best practices in terms of the composition of the photographic array and the care taken to ensure Baez’ attention was not directed toward the defendant’s photograph. Likewise, the
any matter the court have had to decide relative to the admissibility of the identification.
The trial court also rejected the defendant‘s contention that the omitted instruction rendered the identification procedure unnecessarily suggestive. In so doing, the court noted that, in State v. Marquez, 291 Conn. 122, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009), this court held that there is no presumption of suggestiveness, even when the police omit more critical instructions. See id., 162. The court further observed that the Manchester officer‘s instructions that the perpetrator‘s photograph may or may not be among the photographs in the array, that it was just as important to exclude innocent persons as it was to identify the perpetrator, and that Baez should not feel compelled to make an identification were more important than the omitted instruction in terms of reducing the procedure‘s potential suggestiveness. The court finally observed that, even if it was later determined that the procedure was unnecessarily suggestive, the identification itself was reliable and, therefore, admissible under the eight “estimator variables” adopted in Harris for determining the admissibility of identifications that are the product of unnecessarily suggestive identification procedures.9
On appeal, the defendant reasserts his claim that the Manchester police officer‘s failure to instruct Baez that the investigation would continue regardless of whether she identified a suspect, combined with the Meriden police officers’ earlier threats of prosecution, gave rise to a substantial risk of misidentification and, therefore, that the identification should have been suppressed.10 We disagree.
“[A] challenge to a trial court‘s conclusion regarding whether the pretrial identification procedure was unnecessarily suggestive presents a mixed question of law and fact. . . . [B]ecause . . . the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court‘s ultimate inference of reliability was reasonable.” (Citation omitted; internal quotation marks omitted.) State v. Outing, 298 Conn. 34, 50, 3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011).
In State v. Harris, supra, 330 Conn. 115, this court adopted the burden shifting framework embraced by the New Jersey Supreme Court in State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011), for determining the admissibility of an eyewitness identification under the state constitution. We held, “as a matter of state constitutional law, that, when an eyewitness identification allegedly results from an unnecessarily suggestive procedure, the defendant has the initial burden of offering some evidence that a system variable undermined the reliability of the eyewitness identification. . . . If the defendant meets this burden, the state must then offer evidence demonstrating that the identification was reliable in light of all relevant system and estimator variables. . . . If the state adduces such evidence, the defendant must then prove a very substantial likelihood of misidentification.” (Internal quotation marks omitted.) State v. White, 334 Conn. 742, 770, 224 A.3d 855 (2020).
“System variables are factors, such as lineup procedures, that are within the control of the criminal justice system.” (Internal quotation marks omitted.) State v. Harris, supra, 330 Conn. 124 n.24. “Estimator variables are factors that stem from conditions over which the criminal justice system has no control and generally arise out of the circumstances under which the eyewitness viewed the perpetrator during the commission of the crime, such as lighting, distance or presence of a weapon.” (Internal quotation marks omitted.) Id., 124 n.25. “When there is evidence of a suggestive procedure, the trial court should consider the eight estimator variables . . . identified in State v. Guilbert, [306 Conn. 218, 253-54, 49 A.3d 705 (2012)] in determining whether the identification is [nevertheless] reliable.11” (Footnote altered; internal quotation marks omitted.) State v. White, supra, 334 Conn. 770.
When there is no evidence of a suggestive procedure, the reliability of the identification is generally a matter for the jury to decide. See, e.g., State v. Harris, supra, 330 Conn. 132 (“[i]n the absence of evidence of a suggestive procedure or other extraordinary circumstances . . . we continue to believe that evidence relating solely to estimator factors that affect the reliability of the identification goes to the weight, not the admissibility, of the identification“).
The first issue we must decide, then, is whether there was evidence of a suggestive identification procedure. The defendant argues that the Meriden police officers’ prior threats of prosecution “coerced Baez’ identification of the defendant”
The defendant‘s claim that earlier threats caused Baez to believe that she must identify someone or else she would be charged with murder is utterly at odds with Baez’ testimony—which the trial court credited—that she felt “absolutely no pressure” to identify a suspect during the identification procedure that took place on October 14, 2020. Indeed, Baez testified that (1) the Manchester officer “reassured” her that it was perfectly fine if she did not identify a suspect, (2) she did not pick the defendant‘s photograph because of any threats or coercion by the Meriden police, and (3) when she stated that she wanted to help the police, that was because it was “the right thing to do,” not because she thought it would benefit her personally. Given Baez’ uncontroverted testimony in this regard, the trial court correctly concluded that the defendant‘s claim concerning the suggestiveness of the prior threats was baseless. See State v. Henderson, supra, 208 N.J. 290-91 (“If . . . at any time during the hearing the trial court concludes from the testimony that [the] defendant‘s initial claim of suggestiveness is baseless, and if no other evidence of suggestiveness has been demonstrated by the evidence, the court may exercise its discretion to end the hearing. Under those circumstances, the court need not permit the defendant or require the [s]tate to elicit more evidence about estimator variables; that evidence would be reserved for the jury.“); see also State v. White, supra, 334 Conn. 772 (“like the court in Henderson, we conclude that [no further inquiry] ordinarily is required when there is no evidence of a suggestive procedure“).
We are not persuaded that the failure to instruct Baez that the investigation would continue regardless of whether she identified someone rendered the identification procedure suggestive. Although Harris adopted a new framework for assessing the reliability of an identification once it is determined to have been the product of a suggestive procedure; State v. Harris, supra, 330 Conn. 131; the standard for assessing whether a procedure was suggestive in the first instance remains the same. That is, “any analysis of unnecessary suggestiveness must be conducted in light of the totality of the circumstances and must focus specifically on the presentation of the photographic array itself as well as the behavior of law enforcement personnel to determine if the procedure was designed or administered in such a way as to suggest to the witness that a particular photograph represents the individual under suspicion.” State v. Marquez, supra, 291 Conn. 161.
“The second factor [the behavior of the administering officer], which is related to the first but conceptually broader, requires the court to examine the actions of law enforcement personnel to determine whether the witness’ attention was directed to a suspect because of police conduct. . . . It stands to reason that police officers administering a photographic identification
In the present case, the defendant makes no claim that the composition of the photographic array or the conduct of the Manchester officer was suggestive in the sense that either directed Baez’ attention toward the defendant‘s photograph. His claim concerns only the Manchester officer‘s failure to instruct Baez, prior to administering the procedure, that the investigation would continue regardless of whether she identified someone. As the trial court aptly noted, this court has rejected claims that the failure to provide specific warnings prior to an identification rendered an identification procedure unnecessarily suggestive. See, e.g., State v. Marquez, supra, 291 Conn. 162-63 (citing cases and observing that, “[e]ven if a court finds that the police expressly informed witnesses [contrary to established protocol] that the defendant would be in the array, our courts have found the identification procedure unnecessarily suggestive only when other factors exist that otherwise emphasize the defendant‘s photograph” (internal quotation marks omitted)).
This is not to say that preidentification instructions are irrelevant to the suggestiveness inquiry. In Marquez, this court “[found] it significant that the . . . photographic arrays contained a conspicuous might or might not be present warning, indicating to each witness that the perpetrator was not necessarily among those pictured and that the witnesses should not feel obligated to choose someone. The presence of such a warning is a consistent recommendation of the scientific literature . . . and is deemed to counteract effectively the tendency of witnesses to use relative judgment. . . . Moreover, this court expressly has endorsed . . . the use of such warnings and has recognized their potential prophylactic effect against the dangers of the relative judgment process.”12 (Citations omitted; internal quotation marks omitted.) Id., 162. It is undisputed that both of these instructions were given in this case.
In Harris, moreover, we rejected a claim by the amici curiae, the Connecticut Innocence Project and the Innocence Project, “that, for purposes of our state constitutional framework, any material violation
Applying this standard to the present case, we conclude that the totality of the circumstances supported the trial court‘s determination that the failure to provide the omitted instruction did not render suggestive what was otherwise a properly conducted double-blind sequential array procedure. To be sure, as the defendant argues, the omitted instruction is one of several required instructions intended to assure witnesses that the case does not depend on them and that they need not feel any pressure to identify a suspect. When, however, the remainder of those required instructions are provided,14 as they were in the present case, and there is no evidence that the witness actually thought the investigation would not continue if she failed to identify a suspect, the failure to provide the omitted instruction will not render what was otherwise a textbook double-blind sequential identification procedure suggestive.
III
The defendant next claims that the trial court violated his sixth amendment right to confrontation15 under Smith v. Arizona, 602 U.S. 779, 144 S. Ct. 1785, 219 L. Ed. 2d 420 (2024), by allowing Associate Medical Examiner Jacqueline Nunez to testify regarding the victim‘s injuries and cause of death, even though another medical examiner, Dollett White, performed the autopsy. The defendant argues
The following facts are relevant to our resolution of this claim. At trial, the defendant sought to preclude Nunez’ testimony on the ground that she had not performed the victim‘s autopsy. The trial court allowed defense counsel to voir dire Nunez outside the presence of the jury to ascertain the bases for her conclusions regarding the victim‘s injuries. At that time, Nunez stated that, although she had reviewed White‘s autopsy report, her opinions would be based solely on her review of the victim‘s autopsy photographs. Defense counsel then showed Nunez a photograph depicting a metal probe threaded through four perforations in the victim‘s neck and asked her whether she could tell if the neck perforations were caused by one or two bullets. Nunez responded that the photograph was “consistent with either one . . . projectile causing all [four] perforations or two separate projectiles causing the four [perforations]” but that she could not say for sure. Nunez agreed that, were it not for the metal probe photograph, she would not be able to conclude that one projectile could have caused two entrance wounds. She also agreed that she could not determine from the photograph “the degree to which the probe had to be manipulated or pushed to line up those holes.” On the basis of this testimony, defense counsel argued that the prosecutor would ask Nunez “to render an opinion about a photograph [that] . . . documents a particular test that was done by a [different] medical examiner” and that, if Nunez were allowed to testify about this particular photograph, the defendant would “lose the right of confrontation on . . . a critical issue in this case,” namely, whether the victim was shot two or three times.
The trial court responded that there could be no confrontation clause violation if Nunez based her opinions on the photographs alone and that defense counsel would be able to cross-examine her “as to whether she [could] actually give [an] opinion not knowing things you think she should know [about the probe] . . . .” The court further stated, “what this witness won‘t be able to do is tell the jury what [White‘s] conclusions were . . . . And if she, on the stand, says ‘from that photograph, I make the following conclusions,’ that‘s okay, and [it] is admissible. And you‘re free to cross-examine her as to how [she] can . . . [draw] that conclusion when [she doesn‘t] know [certain facts pertaining to the insertion of the probe].”
At the conclusion of voir dire, the prosecutor clarified that the state was not seeking to admit White‘s autopsy report and that the only questions he intended to ask
Thereafter, upon direct examination, Nunez was shown a series of autopsy photographs and was asked to explain what each one depicted. The autopsy report was not entered as a full exhibit at trial. With respect to the photograph of the metal probe in the victim‘s neck, Nunez testified generally about the use of probes. She explained that probes are often used to determine a bullet‘s trajectory. She further testified that the victim‘s four neck perforations were all superficial skin wounds that could have been caused by either one or two bullets but that she could not say for sure. Nunez opined, on the basis of the photograph, that the four perforations resulted from either one bullet that entered and exited twice, or two bullets that each entered and exited once. Nunez further testified that only one of the four perforations resembled an entrance wound. The others, she stated, were “ambiguous,” although their irregular edges were more consistent with exit wounds. Nunez was also shown a photograph of a wound in the center of the victim‘s lower back, which she testified was a single entrance wound for which there was no corresponding exit wound. She testified that the projectile that entered the lower back had damaged the victim‘s lower spinal cord, colon, and a large artery, causing him to lose approximately two liters of blood.
During cross-examination, Nunez repeated that she did not perform the autopsy and that her knowledge was based on a review of the photographs and the autopsy report. Defense counsel asked Nunez whether it would have required a considerable amount of force or manipulation to insert the probe into the victim‘s neck wounds. Nunez responded that she could not tell from the photographs how much, if any, force or manipulation was involved but that it could have required some of each. Defense counsel also asked Nunez, “your expertise . . . as a medical examiner . . . only allows you to conclude what the body tells you. . . . And, in this particular case, what . . . the body has told you is what the photographs have told you. Is that fair to say?” Nunez responded, “[y]es.”
The following legal principles guide our analysis of the defendant‘s claim. The confrontation clause bars admission of “testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The clause‘s prohibition “applies only to testimonial hearsay . . . .” State v. Slater, 285 Conn. 162, 170, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008). Relevant for purposes of the questions presented here is that the confrontation clause bars only the introduction of hearsay, meaning “a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.” (Emphasis added.)
The defendant claims that his right to confrontation was violated because the probe photograph communicated White‘s purported conclusion that a single bullet caused the four neck wounds and because Nunez’ testimony that the wounds could have been caused by one or two bullets did nothing more than convey the out-of-court testimonial statements of White from the autopsy report. The defendant is essentially arguing that both the photograph and Nunez’ statement interpreting the photograph were hearsay statements. We disagree and conclude that the probe photograph was not hearsay and that Nunez’ testimony about the neck wounds was based solely on her review and interpretation of the probe photograph, not on White‘s autopsy report.
As we have explained, the confrontation clause bars the admission of “testimonial statements” when certain conditions are met. See, e.g., Crawford v. Washington, supra, 541 U.S. 68-69. Section 8-1 (1) of the Connecticut Code of Evidence defines “[s]tatement” as “(A) an oral or written assertion or (B) nonverbal conduct of a person, if it is intended by the person as an assertion.”
Contrary to the defendant‘s contention, the photograph does not state or imply that one bullet caused these wounds. It simply depicts an image of the victim‘s body with a probe inserted through four wounds. The probe photograph does not include or depict any words, gestures, or some other indicative content that can reasonably be understood as an assertion. It does not convey White‘s intention with respect to the probe; it does not communicate how the probe was inserted, why the probe was inserted, what White intended the probe to show, or what conclusions she drew from the probe. Nunez testified that probes generally are used to determine the trajectory of a bullet but are also used to determine whether a wound is a bullet wound or whether two or more wounds are connected. Here, however, the photograph does not convey White‘s reason for inserting the probe, which could have been for one or more of the purposes identified by Nunez. We do know, however, that Nunez relied on the photograph to deduce and communicate her own conclusions about the wounds. Nunez testified that, while looking at the photograph, she could not state with a reasonable degree of medical certainty whether one or two bullets had caused the wounds depicted in the photograph. Finally, in providing her opinion of the probe photo-graph, Nunez did not reference White‘s process for inserting the probe, the autopsy report, or what, if any, conclusions White documented in that report with respect to the probe. Rather, Nunez relied on the probe photograph‘s objective depiction of the wounds and patterns.
This court has held that medical examiners may testify regarding a victim‘s injuries, even though they did not perform the autopsy, so long as their testimony is based solely on the autopsy photographs. See, e.g., State v. Robles, 348 Conn. 1, 11, 301 A.3d 498 (2023) (“to the extent that the defendant challenges the admission of [the substitute medical examiner‘s] testimony concerning the autopsy photographs, the admission of that testimony did not violate the confrontation clause . . . [because] [t]his portion of [the witness‘] testimony
Contrary to the defendant‘s claim, this issue is not “squarely controlled” by Smith v. Arizona, supra, 602 U.S. 779. In Smith, the United States Supreme Court held that “[a] [s]tate may not introduce the testimonial out-of-court statements of a forensic analyst at trial, unless she is unavailable and the defendant has had a prior chance to cross-examine her. . . . Neither may the [s]tate introduce those statements through a surrogate analyst who did not participate in their creation. . . . And nothing changes if the surrogate . . . presents the out-of-court statements as the basis for his expert opinion. Those statements, as we have explained, come into evidence for their truth—because only if true can they provide a reason to credit the substitute
The defendant next claims that Nunez’ testimony that (1) White “performed an external and internal investigation of the victim‘s body,” (2) White “recovered a bullet from the victim‘s midsection,” (3) “[t]he [midsection] bullet injured the victim‘s spine, colon, and a large artery,” and (4) “[t]he arterial injury caused ‘approximately two liters’ of internal bleeding” was inadmissible testimonial hearsay that Nunez could have known only by reading White‘s autopsy report. Even if we assume that these statements were improperly admitted, we nevertheless conclude that their admission was harmless beyond a reasonable doubt.17 See, e.g., State v. Merriam, 264 Conn. 617, 649, 835 A.2d 895 (2003) (“[a]s with other constitutional violations that are subject to harmless error analysis, the state has the burden of demonstrating that a confrontation clause violation was harmless beyond a reasonable doubt“).
As previously indicated, the sole issue before the jury was whether the defendant or someone else—ostensibly Pacheco—killed the victim. There was no dispute over the cause of the victim‘s death. He died from a gunshot wound to his lower back. Evidence from Nunez that White had performed an external and internal investigation of the victim‘s body, recovered a bullet from his midsection, and measured two liters of blood was, therefore, not harmful to the defendant. To the contrary, such evidence supported one of his defense theories. Defense counsel argued at trial that, if the jury believed the defendant was the individual who shot the victim in the parking lot, Nunez’ testimony that the superficial wounds on the victim‘s neck could have been caused by two bullets meant that the defendant did not deliver the fatal shot to the victim. Instead, that shot was likely delivered by Pacheco. Consequently, none of Nunez’ testimony regarding the abdominal injuries could have affected the verdict. See, e.g., State v. Johnson, 345 Conn. 174, 196, 283 A.3d 477 (2022) (“the test for determining whether a constitutional [error] is harmless . . . is whether it appears beyond a reasonable doubt that the [error] complained of did not contribute to the verdict obtained” (internal quotation marks omitted)).
As to the strength of the state‘s case, two different people identified the defendant as the person who shot the victim. One of them, Crespo, had known the defendant his entire life. The other, Baez, was standing next to the defendant when the shooting occurred and had a number of face-to-face interactions with the defendant
Despite the state‘s substantial evidence, the defendant contends that, but for a portion of Nunez’ testimony, the jury reasonably could have found that the victim was struck by three bullets, rather than two, and, on the basis of this finding, reasonably could have concluded that Pacheco, rather than the defendant, was the actual killer. The only evidence supporting this theory consists of several still photographs from the surveillance footage indicating that, after leaving the cafe, Pacheco drove his Chevrolet Malibu around the block, which would have taken him past the turnoff to Foster Court, where the victim‘s body was found. According to the time stamps on these photographs, however, Pacheco‘s trip around the block, which began approximately one minute after the defendant shot the victim, took Pacheco approximately seventy-two seconds to complete. During this time frame, no one reported hearing any additional gunshots in the vicinity of the cafe. Nor was there any evidence that Pacheco knew that the victim was parked on Foster Court, much less that Pacheco stopped at that location, found the victim, shot him, and returned to the front of the cafe in that short length of time. In light of the foregoing, we conclude that, even if some of the cited testimony was improperly admitted, the state has sustained its burden of demonstrating that the error was harmless beyond a reasonable doubt.
The judgment is affirmed.
In this opinion the other justices concurred.
Notes
‘‘[The Prosecutor]: You were asked some questions about being [threatened with prosecution]. Were you ever charged with this incident?
‘‘[Baez]: No.
‘‘[The Prosecutor]: Okay. Did the [Meriden] cops—when they met [you] the second time in Manchester [before the photographic array], did they [threaten] you again [with] charges and all that?
‘‘[Baez]: No.
‘‘[The Prosecutor]: How about the Manchester cop, did he threaten you at all?
‘‘[Baez]: Not at all.
‘‘[The Prosecutor]: Did he coerce you at all?
‘‘[Baez]: No.
‘‘[The Prosecutor]: Did he tell you at any time who to pick out of that lineup?
‘‘[Baez]: No.
‘‘[The Prosecutor]: You said you wanted to cooperate with the cops. You were just asked that a moment ago.
‘‘[Baez]: Yes.
‘‘[The Prosecutor]: Be helpful?
‘‘[Baez]: Yes.
‘‘[The Prosecutor]: How come?
‘‘[Baez]: It’s the right thing to do.’’