State v. Ashby ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. LAZALE ASHBY
(SC 18190)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
Convicted of the crimes of capital felony, murder, felony murder, sexual
assault in the first degree, kidnapping in the first degree, and burglary
in the first degree in connection with the stabbing and strangulation of
the victim in her apartment, the defendant appealed to this court. The
police arrested the defendant when his DNA profile was matched to
DNA taken from the victim’s vaginal swab, and, after the defendant was
confronted with that evidence, he gave the police a written confession.
Evidence presented at trial established that a second, unidentified male
also contributed to the DNA on the victim’s vaginal swab, and unidenti-
fied male DNA also was discovered on the doorframe of the victim’s
bedroom and in saliva found on the victim’s shoulder. Prior to the
defendant’s trial, P, a jailhouse informant who was incarcerated with
the defendant, wrote a letter to W, a detective with the Hartford Police
Department, indicating that he had information about the defendant
that would be useful to W and referencing an unrelated criminal case
pending against the defendant. W subsequently met with P at the prison,
where they discussed the defendant’s involvement in the victim’s death,
whether P might receive a benefit for providing additional information,
and whether P would be willing to wear a wire. When W did not contact
P again after the meeting, P informed the defendant of the meeting, and
the defendant devised a ruse intended to undermine W’s credibility in
anticipation of W’s testimony at trial. A few days before the state was
to rest its case, P contacted W and informed W of the defendant’s ruse,
and the state notified the defense that it intended to call P as a witness.
The defendant filed a motion to suppress P’s testimony, which the trial
court denied, concluding that P had not been acting as an agent of the
state when he elicited information from the defendant. Thereafter, the
defendant requested an instruction on third-party culpability in connec-
tion with the presence of the unidentified male DNA found in and on
the victim’s body and at the crime scene, but the trial court declined
to give that instruction. On appeal from the judgment of conviction, the
defendant claimed that the state violated his sixth amendment right
to counsel by using P as an agent to deliberately elicit incriminating
statements from the defendant, there was insufficient evidence to sup-
port his conviction of burglary in the first degree, and the trial court
improperly declined to provide a third-party culpability instruction to
the jury in light of the unidentified male DNA discovered in and on the
victim’s body and at the crime scene. Held:
1. The trial court improperly denied the defendant’s motion to suppress
P’s testimony in violation of the defendant’s sixth amendment right to
counsel because P was acting as an agent of the state when he deliber-
ately elicited incriminating statements from the defendant, and, accord-
ingly, the judgment of conviction was reversed and the case was
remanded for a new trial: although there was no express or formal
agreement between P and W, in light of the totality of the circumstances,
P’s efforts to elicit incriminating statements from the defendant were
fairly attributable to the state, as the meeting between P and W empha-
sized what useful, incriminating information P might obtain as a result
of his future assistance and specifically focused on P’s efforts to obtain
information from the defendant, possibly through wearing a wire or by
other means, about his specific involvement in the victim’s death rather
than his involvement in unrelated criminal cases; moreover, P and W
discussed P’s interest in receiving a benefit in exchange for his coopera-
tion, W indicated that the state’s attorney would have to approve any
such deal, and, after P testified at the defendant’s trial, the state in fact
provided P with his desired benefit by agreeing not to object to P’s
attempt to secure a sentence modification, which P and W had discussed
during their meeting; furthermore, the psychological pressures inherent
in confinement, along with P’s lengthy consecutive sentences, provided
P with a strong incentive to cooperate with the state, W never directed
P to cease eliciting information from the defendant or to avoid conversa-
tions with the defendant until the state’s attorney had approved of P’s
cooperation with W, and the state either knew or should have known
that W’s meeting with P was likely to result in further elicitation of
information from the defendant.
(One justice concurring in part and dissenting in part)
2.This court declined the defendant’s invitation to overrule its holding in
State v. Allen (216 Conn. 367), and, accordingly, the defendant could
not prevail on his claim that the evidence was insufficient to establish
that he remained unlawfully in the victim’s apartment for purposes of
his conviction of burglary in the first degree; contrary to the defendant’s
assertion that Allen improperly conflates the burglary elements of intent
and unlawful remaining, that case stands for the narrow proposition
that the state may prove an unlawful remaining on the premises, for
purposes of first degree burglary, by proffering evidence that a defendant
has engaged in conduct on the premises that was likely to terrorize the
occupants, and the defendant advanced no argument that his conduct
in the victim’s apartment was unlikely to terrorize the victim; moreover,
this court’s narrow reading of Allen was bolstered insofar as the Appel-
late Court has consistently restricted its application of Allen to cases
in which the state has presented evidence that the defendant engaged
in conduct likely to terrorize occupants, and the fact that the legislative
history of recent amendments to the burglary statutes strongly indicated
that the legislature has acquiesced in this court’s decision in Allen coun-
seled strongly against overruling Allen in favor of a more restrictive
statutory interpretation of the relevant statutory ((Rev. to 2001) §§ 53a-
100 (b) and 53a-101 (a) (2)) language; furthermore, variations among
jurisdictions with respect to the law of burglary and license to remain
did not justify departing from the weighty considerations attendant to
stare decisis.
3. The trial court abused its discretion by declining to provide a third-party
culpability instruction to the jury, as the defendant established a direct
connection between a third person and the charged offenses; the evi-
dence reasonably supported an instruction on third-party culpability,
as unidentified male DNA was recovered directly from the victim’s body
and from the blood covered doorframe of her bedroom, rather than
from the periphery of the crime scene, and the DNA on the victim’s
shoulder would have existed only for a limited duration and was not
otherwise explained by the record.
Argued April 29, 2019—officially released August 6, 2020**
Procedural History
Substitute information charging the defendant with
three counts of the crime of kidnapping in the first
degree, two counts of the crime of capital felony, and
one count each of the crimes of murder, felony murder,
sexual assault in the first degree, and burglary in the
first degree, brought to the Superior Court in the judicial
district of Hartford and tried to the jury before
Espinosa, J.; verdict of guilty; thereafter, during the
penalty phase of the proceedings, the jury found that
the existence of aggravating factors outweighed the
mitigating factors, and the court rendered judgment of
guilty in accordance with the verdict and imposed the
death penalty on each count of capital felony and terms
of imprisonment on the remaining counts, from which
the defendant appealed to this court; subsequently, the
trial court, Dewey, J., granted in part the defendant’s
postjudgment motion for an evidentiary hearing but
denied the relief requested; thereafter, the trial court,
Baldini, J., resentenced the defendant on each count
of felony murder to a term of life imprisonment without
the possibility of release. Reversed; new trial.
Adele V. Patterson, senior assistant public defender,
Jennifer L. Bourn, supervisory assistant public
defender, and Judith L. Borman, former senior assis-
tant public defender, for the appellant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and John Fahey, supervisory assistant state’s
attorney, for the appellee (state).
Opinion
ROBINSON, C. J. The principal issue in this appeal
is whether the state violated its affirmative obligation
under Massiah v. United States, 377 U.S. 201, 206, 84
S. Ct. 1199, 12 L. Ed. 2d 246 (1964), and its progeny to
respect and preserve an invocation of the right to coun-
sel under the sixth amendment to the United States
constitution by using a jailhouse informant, Kenneth
Pladsen, Jr., to deliberately elicit certain incriminating
statements from the defendant, Lazale Ashby. The
defendant, who was convicted of several crimes in con-
nection with a murder in the city of Hartford on the
night of December 1, 2002, appeals1 from the underlying
judgment, raising numerous claims of error. For the
reasons that follow, we conclude that the defendant’s
constitutional right to counsel was violated and, accord-
ingly, that he is entitled to a new trial on all counts.
With respect to the defendant’s other claims, we con-
clude that (1) he is not entitled to a judgment of acquittal
on the charge of burglary in the first degree in violation
of General Statutes (Rev. to 2001) § 53a-101 (a) (2) on
the ground of insufficient evidence, and (2) the trial
court improperly declined to provide a third-party cul-
pability instruction to the jury in light of certain uniden-
tified male DNA discovered at the crime scene.2
The record reveals the following relevant facts and
procedural history. On December 1, 2002, the victim3
was living with her two year old daughter on the second
floor of a three story apartment building located on
Zion Street in Hartford. At approximately 7 p.m. that
evening, Yvette Davila, who lived in an apartment on
the third floor, invited the victim’s daughter upstairs to
watch Rudolph the Red-Nosed Reindeer on television.
The victim went upstairs about one-half hour later, left
her daughter with Davila, and never returned. Although
Davila made several attempts to contact the victim over
the hours that followed, those efforts proved unsuccess-
ful. Davila’s husband, Daniel Roman, went downstairs
the following morning, noticed that a door to the vic-
tim’s apartment was ajar, and stepped into the victim’s
kitchen. Once inside, Roman saw the victim’s naked
body lying on the floor of an adjacent bedroom. Roman
then went back upstairs to his apartment, where he
and Davila called the police at 7:17 a.m.
The evidence offered at trial indicates that the victim
died as the result of strangulation. Specifically, an exam-
ination of the body revealed petechial hemorrhages and
neck abrasions consistent with the use of an irregular
ligature. The victim had also sustained several nonfatal
injuries, including numerous stab wounds to her back.
Forensic evidence did not establish an exact time of
death, but the presence of rigor mortis indicated that
the victim had been dead for hours by the time the
paramedics arrived that morning. A significant amount
of blood was found in both the kitchen and the bed-
room.
The police subsequently developed an unspecified
lead and, as a result of that information, were able to
obtain a warrant for a sample of the defendant’s DNA
to test against several samples collected from the crime
scene. Those tests revealed that the defendant and an
unidentified male were contributors to certain DNA
profiles developed from the victim’s vaginal swab. On
September 3, 2003, the defendant, who was eighteen
years old at the time, was arrested by the police. He
waived his Miranda4 rights and then was questioned
at length. Although the defendant initially denied know-
ing or having sex with the victim, he ultimately gave a
written confession after being confronted with the
results of the testing that had been performed on the
victim’s vaginal swab.5
The operative information in the present case con-
tained nine counts, including two counts of capital fel-
ony; General Statutes (Rev. to 2001) § 53a-54b (5) and
(6); one count of murder; General Statutes § 53a-54a
(a); one count of felony murder; General Statutes (Rev.
to 2001) § 53a-54c; one count of sexual assault in the
first degree; General Statutes § 53a-70 (a) (1); three
counts of kidnapping in the first degree; General Stat-
utes § 53a-92 (a) (2) (A), (B) and (C); and one count
of burglary in the first degree. General Statutes (Rev.
to 2001) § 53a-101 (a) (2). The defendant pleaded not
guilty, and a trial commenced on May 8, 2007.6 On June
27, 2007, a jury returned a verdict finding the defendant
guilty on all counts. The trial court subsequently ren-
dered a judgment of conviction in accordance with the
jury’s verdict.7 This appeal followed. See footnote 1 of
this opinion.
I
We begin with the defendant’s claim that the state
violated his right to counsel under the sixth amend-
ment.8 Pladsen, a jailhouse informant who was incarcer-
ated with the defendant prior to and during the defen-
dant’s trial, testified that the defendant had asked him
to participate in a ruse intended to undermine the credi-
bility of Andrew Weaver, a detective with the Hartford
Police Department. The defendant sought to suppress
that testimony pursuant to Massiah v. United States,
supra, 377 U.S. 201, and its progeny, arguing that Plad-
sen had deliberately elicited incriminating statements
while acting as an agent of the police. On appeal, the
defendant claims that the trial court incorrectly con-
cluded that no agency relationship existed and, as a
result, improperly denied his motion to suppress Plad-
sen’s testimony pursuant to Massiah. In response, the
state contends that the trial court’s conclusion was cor-
rect, and, therefore, the defendant’s motion to suppress
was properly denied. We agree with the defendant.
The record reveals the following additional undis-
puted facts relating to Pladsen’s involvement in the
present case. On December 27, 2006, Pladsen wrote a
letter to Weaver. At that time, Pladsen was an inmate at
Northern Correctional Institution (Northern) in Somers
and interacted with the defendant on a regular basis.9
That letter stated, among other things, that Pladsen had
information about the defendant that could prove ‘‘very
useful’’ to Weaver, that Pladsen was scheduled to be
paroled to serve a separate fifty-five year sentence in
Iowa, and that Pladsen would be extradited back to
Connecticut after serving that sentence. The letter refer-
enced certain individuals involved in another criminal
case that was pending against the defendant and
included the following invitation: ‘‘You want my help,
come [and] see me [and] we’ll talk.’’ The letter stated
that Pladsen was not seeking a transfer to another cor-
rectional institution, a sentence reduction, or ‘‘anything
like that.’’
In response to Pladsen’s letter, Weaver scheduled a
meeting that was held in a private office at Northern
on January 5, 2007. During that meeting, Weaver and
Pladsen spoke specifically about the defendant’s
involvement in the victim’s death. Pladsen did not con-
vey any detailed information but, instead, provided only
general facts to show that ‘‘he might know something.’’
At some point during that conversation, Weaver
inquired whether Pladsen would be willing to wear a
wire.10 Pladsen initially expressed some concern but
ultimately agreed. Pladsen also asked whether he would
benefit in some way from providing information about
the defendant.11 Weaver said that any ‘‘deals’’ or plans
to use a wire would have to be approved by the Office
of the State’s Attorney and that he would get back to
Pladsen.12 Pladsen said that he understood. Weaver then
added that the police are ‘‘always interested’’ in gather-
ing information about criminal matters from reliable
sources and that he would be willing to listen to, and
subsequently verify, anything Pladsen had to say.
Weaver also made Pladsen generally aware that the
defendant’s trial was imminent and that the Office of the
State’s Attorney would be told any relevant information.
Weaver then told Pladsen that, because of his criminal
record and history, his word ‘‘[w]asn’t going to be good
enough . . . .’’
The Office of the State’s Attorney subsequently
advised Weaver to take no further action with respect
to Pladsen. As a result, Weaver did not follow up with
Pladsen as Weaver had promised. Over the months that
followed, a corrections officer contacted Weaver on a
few occasions to let him know that Pladsen wanted to
speak again. On May 17, 2007, Weaver asked a correc-
tions officer to inform Pladsen that ‘‘nothing . . . had
changed’’ and that Weaver would try to be in touch
again soon.13
Pladsen testified that he eventually told the defendant
about the meeting with Weaver. Pladsen stated that the
defendant had then made a plan for Pladsen to feed
Weaver information about the case so that the state
would call Pladsen as a witness. According to Pladsen,
he was then supposed to lie on the stand and say that
he had received that information from Weaver. Pladsen
testified that he asked the defendant to write the infor-
mation down and that the defendant had created a one
page note as a result. On May 28, 2007, a few days
before the state was scheduled to rest its case, Weaver
received multiple telephone calls indicating that Plad-
sen wanted to get in touch again. Pladsen testified that
Weaver called him the following day to ask what infor-
mation Pladsen had. Pladsen then read Weaver the note
over the telephone.14
The state immediately notified the defense of its
intention to call Pladsen as a witness and disclosed
a copy of a five page report by Weaver detailing the
preceding events. On May 30, 2007, the defendant filed
a motion seeking to suppress Pladsen’s testimony pur-
suant to, inter alia, the sixth amendment. The following
day, the trial court commenced an evidentiary hearing
outside of the presence of the jury. During that hearing,
Weaver and Pladsen testified about the nature of their
conversations and the various events leading up to the
creation of the note. In particular, Pladsen testified that
he had acted on his own accord and that Weaver had
not promised him anything.
At the close of the evidentiary hearing, the trial court
orally denied the defendant’s motion to suppress Plad-
sen’s testimony.15 In a subsequent, written memoran-
dum of decision, the trial court concluded that Pladsen
was not acting as an agent of the state. In reaching that
conclusion, the trial court expressly found Pladsen’s
testimony to be credible. The trial court reasoned: ‘‘Tes-
timony demonstrated that Pladsen and Weaver had no
contact prior to January, 2007, and that Pladsen initiated
the first contact. There is no evidence to suggest that
the state, at any point, had a plan to enlist Pladsen’s
help in obtaining incriminating evidence from the defen-
dant or had made an agreement with Pladsen to obtain
such evidence. In fact, all [the] evidence indicates that
there was no plan or agreement. Likewise, there is no
evidence to suggest that . . . any . . . law enforce-
ment agency was involved in the decision to house
Pladsen near the defendant. Weaver never instructed
Pladsen to obtain incriminating evidence about the
defendant but, in fact, told him that any action would
require prior approval by the [Office of the State’s Attor-
ney]. Weaver was advised not to pursue the matter
and never initiated further contact with Pladsen. When
Weaver later contacted Pladsen, it was only in response
to multiple messages requesting a return call. In addi-
tion, Weaver made no promises or offers to Pladsen
and told him that he had no authority to do so. Finally,
the defendant continued to discuss the details of his
case with Pladsen, even after he knew that Pladsen had
met with Weaver.’’
After the trial court denied the defendant’s motion
to suppress, the following evidence was presented to
the jury. Pladsen testified that he was an inmate at
Northern, again recounted the defendant’s ruse to dis-
credit Weaver, and identified a particular exhibit sub-
mitted by the state as the note that the defendant had
written.16 Although Pladsen was subjected to extensive
cross-examination regarding his criminal history, men-
tal health, and possible motives, he testified that he
was receiving absolutely no benefit in exchange for his
testimony. The state then presented testimony from a
handwriting expert, Greg Kettering, who concluded that
there was ‘‘no doubt’’ that the note shared a common
authorship with known samples of the defendant’s writ-
ing. The note was then admitted into evidence as a full
exhibit over the defendant’s objection. The contents of
that note stated, among other things, that the author
had ‘‘used the bloody tank top on the floor to strangle
[the victim], and that’s the murder weapon.’’17
Pladsen subsequently filed a motion in the Superior
Court seeking modification of a twenty-five year sen-
tence he had received for an assault on a corrections
officer.18 The state consented to a hearing on that
motion, which was held on December 23, 2016, pursuant
to General Statutes § 53a-39 (b). At that hearing, the
state represented that Pladsen’s motion for a sentence
modification ‘‘was made . . . in the spirit of what
[Senior Assistant State’s Attorney John] Fahey had indi-
cated to . . . Pladsen, that [the state] would make the
court aware of what [Pladsen] had done . . . .’’ See
footnote 17 of this opinion. Although the state con-
sented to the hearing, it took no position on whether
Pladsen’s motion should be granted. After listening to
testimony from the corrections officer who Pladsen had
assaulted, the trial court in that case denied Pladsen’s
motion.
On appeal, the defendant claims that the trial court
improperly denied his motion to suppress Pladsen’s
testimony. Specifically, the defendant claims that his
sixth amendment right to counsel was violated when
the state used Pladsen as an agent to deliberately elicit
incriminating statements. In order to obtain relief on
such a claim, a defendant must prove the following:
‘‘(1) the [s]ixth [a]mendment right to counsel has
attached; (2) the individual seeking information from
the defendant is a government agent acting without the
defendant’s [counsel] being present; and (3) that agent
deliberately elicit[s] incriminating statements from the
defendant.’’ (Internal quotation marks omitted.) Hen-
derson v. Quarterman, 460 F.3d 654, 664 (5th Cir. 2006),
cert. denied, 549 U.S. 1252, 127 S. Ct. 1383, 167 L. Ed.
2d 160 (2007); see also Massiah v. United States, supra,377 U.S. 206; Stewart v. Wagner, 836 F.3d 978, 985 (8th
Cir. 2016); State v. Swinton, 268 Conn. 781, 854, 847
A.2d 921 (2004).
The defendant’s presentation of this claim, which
focuses on the question of agency, turns on the follow-
ing general themes: ‘‘(1) Weaver’s encouragement . . .
of Pladsen, (2) Pladsen’s agreement to provide evidence
and wear a wire, and (3) the state’s failure to take any
action to call off Pladsen . . . .’’ The defendant asserts
that ‘‘[t]he trial court’s and [the] state’s constrained
view of agency as requiring explicit instruction, or as
requiring that the informant adhere to a preexisting
plan . . . is unsupported . . . [by] the case law’’ and
that the state ‘‘knew or should have known that Weav-
er’s interaction with Pladsen created a situation likely
to induce [the defendant] into unknowingly giving
uncounseled, incriminating statements to a person who
had agreed to help the state obtain evidence . . . .’’
In response, the state argues that the trial court cor-
rectly concluded that Pladsen was not acting as an agent
of the government. The state supports this argument
by pointing to several of the same facts relied on by
the trial court. Specifically, the state highlights (1) the
absence of specific plans or instructions, (2) the fact
that Pladsen appeared to be self-motivated, (3) Weav-
er’s statement that he could not personally approve
any plans or deals, and (4) the fact that Weaver never
followed up with Pladsen after their initial meeting.
The state concedes, as it must, that the defendant’s
sixth amendment right to counsel attached well before
Pladsen’s involvement. See, e.g., Kirby v. Illinois, 406
U.S. 682, 689–90, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972).
Likewise, the state advances no argument that Pladsen’s
actions fell short of deliberate elicitation. See, e.g., Kuh-
lmann v. Wilson, 477 U.S. 436, 459, 106 S. Ct. 2616, 91
L. Ed. 2d 364 (1986). Finally, the state does not claim the
absence of prejudice or otherwise invoke the harmless
error doctrine. See, e.g., United States v. Miller, 116
F.3d 641, 667–69 (2d Cir. 1997), cert. denied, 524 U.S.
905, 118 S. Ct. 2063, 141 L. Ed. 2d 140 (1998), and cert.
denied sub nom. Arroyo v. United States, 524 U.S. 905,
118 S. Ct. 2063, 141 L. Ed. 2d 140 (1998). Thus, the sole
issue with respect to this claim on appeal is whether
Pladsen was acting as an agent of the state when he
elicited incriminating statements from the defendant.
‘‘It is well settled that, [w]hen reviewing a trial court’s
denial of a motion to suppress, [a] finding of fact will
not be disturbed unless it is clearly erroneous in view
of the evidence and pleadings in the whole record
. . . . [W]hen a question of fact is essential to the out-
come of a particular legal determination that implicates
a defendant’s constitutional rights . . . and the credi-
bility of witnesses is not the primary issue, our custom-
ary deference to the trial court’s factual findings is
tempered by a scrupulous examination of the record
to ascertain that the trial court’s factual findings are
supported by substantial evidence.’’ (Internal quotation
marks omitted.) State v. Jacques, 332 Conn. 271, 279,
210 A.3d 533 (2019); see also State v. Swinton, supra,
268 Conn. 855. ‘‘The issue of agency, even in a constitu-
tional context, is primarily a question of fact . . . .’’
(Citations omitted.) State v. Alexander, 197 Conn. 180,
185, 496 A.2d 486 (1985). Nonetheless, to the extent
that the resolution of that question ‘‘calls for application
of the controlling legal standard to the historical facts,’’
it ‘‘presents a . . . question of law . . . which [this
court reviews] de novo.’’19 (Internal quotation marks
omitted.) State v. Castillo, 329 Conn. 311, 322–23, 186
A.3d 672 (2018). Such a review ‘‘is not limited to the
facts the trial court actually found in its decision on
the defendant’s motion to suppress. Rather, [this court]
may also consider undisputed facts established in the
record, including the evidence presented at trial.’’ Id.,
340 (D’Auria, J., dissenting). ‘‘[I]n particular, [this
court] must take account of any undisputed evidence
that does not support the trial court’s ruling in favor
of the state but that the trial court did not expressly
discredit.’’ State v. Edmonds, 323 Conn. 34, 39, 145 A.3d
861 (2016).
‘‘[T]he United States Supreme Court has held that a
state violates the sixth amendment when, acting
through an undisclosed agent, it ‘deliberately elicit[s]’
incriminating statements from an accused ‘after he [has]
been indicted’ and his right to counsel has attached.’’
State v. Swinton, supra, 268 Conn. 855, quoting Massiah
v. United States, supra, 377 U.S. 206. The general nature
of this constitutional duty is clear: ‘‘[T]he [s]tate [has]
an affirmative obligation to respect and preserve the
accused’s choice to seek [the] assistance [of counsel].’’
(Emphasis added.) Maine v. Moulton, 474 U.S. 159, 171,
106 S. Ct. 477, 88 L. Ed. 2d 481 (1985).20
Cases from the United States Supreme Court estab-
lishing this line of sixth amendment jurisprudence do
not directly address the question of agency. A review
of those decisions does, however, provide necessary
context. In Massiah v. United States, supra, 377 U.S.
202–203, law enforcement officers installed a radio
transmitter inside of a vehicle belonging to a cooperat-
ing codefendant. While the defendant in that case was
free on bail, he made incriminating statements inside
of the vehicle that were later admitted into evidence
over his objection at trial. Id., 203. The Supreme Court
concluded that these facts amounted to an indirect
interrogation and that federal agents, therefore, had
violated the sixth amendment.21 Id., 206.
Like the present case, United States v. Henry, 447
U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980), involves
government interactions with a jailhouse informant. In
that case, federal law enforcement officers contacted
an inmate who previously had been paid for providing
information. Id., 266, 270. That informant indicated that
he had been assigned to the same cellblock as the defen-
dant and several other federal prisoners. Id., 266. ‘‘The
[officer] told him to be alert to any statements made
by the federal prisoners, but not to initiate any conversa-
tion with or [to] question [the defendant] regarding the
[crime at issue].’’ Id. Notwithstanding these instruc-
tions, the informant subsequently engaged the defen-
dant in a series of conversations about the crime at
issue, which caused the defendant to make certain
incriminating statements. Id., 267. The informant
recounted those statements at trial, and the defendant
subsequently was convicted. Id. The government argued
on appeal that, although the informant had asked the
defendant questions, no sixth amendment violation
occurred because the informant had disobeyed instruc-
tions. Id., 269–71. The Supreme Court rejected that argu-
ment, concluding that, because of the informant’s his-
tory and proximity to the defendant, the officer ‘‘must
have known that such propinquity likely would lead to
that result.’’ Id., 271. The court then recounted ‘‘the
powerful psychological inducements’’ attendant to con-
finement: ‘‘[T]he mere fact of custody imposes pres-
sures on the accused; confinement may bring into play
subtle influences that will make him particularly sus-
ceptible to the ploys of undercover [g]overnment
agents.’’ Id., 274. On these grounds, the court concluded
that the government had violated the defendant’s consti-
tutional rights by ‘‘intentionally creating a situation
likely to induce [the defendant] to make incriminating
statements without the assistance of counsel . . . .’’22
Id., 274.
Finally, in Maine v. Moulton, supra, 474 U.S. 159,
a cooperating codefendant wore a wire to a meeting
requested by the defendant. Id., 164. As in Henry, the
informant was affirmatively instructed not to question
the defendant. Id., 165. Notwithstanding that instruc-
tion, the informant prompted the defendant to make
certain incriminating statements. Id., 166. Some of those
statements were admitted at trial, and the defendant
subsequently was convicted. Id., 167. Before examining
the facts of the case before it, the court characterized
the right at issue as follows: ‘‘Once the right to counsel
has attached and been asserted, the [s]tate must of
course honor it. This means more than simply that the
[s]tate cannot prevent the accused from obtaining the
assistance of counsel. The [s]ixth [a]mendment also
imposes on the [s]tate an affirmative obligation to
respect and preserve the accused’s choice to seek this
assistance. We have on several occasions been called
upon to clarify the scope of the [s]tate’s obligation in
this regard, and have made clear that, at the very least,
the prosecutor and police have an affirmative obligation
not to act in a manner that circumvents and thereby
dilutes the protection afforded by the right to counsel.’’23
(Footnote omitted.) Id., 170–71.
In Moulton, the state advanced an argument on
appeal that the sixth amendment had not been violated
because the meeting had been initiated by the defendant
rather than by the state. Id., 174. The Supreme Court
rejected that argument, concluding that the defendant
had an affirmative right ‘‘to rely on counsel as a
‘medium’ between him and the [s]tate.’’ Id., 176; see
also id., 170–71 n.6. Thus, the court concluded that
‘‘knowing exploitation by the [s]tate of an opportunity
to confront the accused without counsel being present
is as much a breach of the [s]tate’s obligation not to
circumvent the right to the assistance of counsel as is
the intentional creation of such an opportunity. Accord-
ingly, the [s]ixth [a]mendment is violated when the
[s]tate obtains incriminating statements by knowingly
circumventing the accused’s right to have counsel pres-
ent in a confrontation between the accused and a state
agent.’’ Id., 176. As it had in Henry, the court then held
that this standard had been met, concluding that, in
light of the undisputed facts, the state ‘‘must have
known’’ that the informant would elicit incriminating
statements. Id., 177.
Some general principles can be drawn from these
Supreme Court cases. First, although the state’s affirma-
tive obligation primarily requires it to refrain from tak-
ing action, it does not follow that a court conducting
a sixth amendment analysis must ignore opportunities
for the state that came to pass by chance. Thus, the
court found a constitutional violation in United States v.
Henry, supra, 447 U.S. 268, even though the informant’s
housing in the same cellblock as the defendant in that
case had not been prearranged by the government. The
fact that the defendant requested the meeting in Maine
v. Moulton, supra, 474 U.S. 174–76, likewise did not
preclude a constitutional violation. Second, because of
the pressures attendant to physical custody, the risk of
infringement of the right to counsel is more acute in
the jailhouse setting. See United States v. Henry, supra,
274. Third, a rule requiring direct proof that the govern-
ment knowingly violated the defendant’s right to coun-
sel sets the bar too high to protect that right. See Maine
v. Moulton, supra, 176 n.12; see also State v. Diaz, 302
Conn. 93, 120, 25 A.3d 594 (2011) (Palmer, J., concur-
ring) (‘‘[I]t is difficult for a defendant to demonstrate
the existence of an ‘implicit understanding’ between
the state and an informer that the latter will, in fact,
receive a benefit for his or her testimony. In fact, it is
likely to be impossible for the defendant to demonstrate
the existence of such an understanding between the
state and its witness.’’ (Emphasis in original.)). It will
suffice to show that, in light of the totality of the circum-
stances, the state ‘‘must have known’’ that its actions
likely would lead to the deliberate elicitation of incrimi-
nating statements.24 United States v. Henry, supra, 271.
Although these United States Supreme Court cases
explored the bounds of deliberate elicitation, lower
courts examining the question of agency—including
this court—have frequently looked to those decisions
for guidance. See, e.g., State v. Alexander, supra, 197
Conn. 184; see also Ayers v. Hudson, 623 F.3d 301,
310–16 (6th Cir. 2010) (applying ‘‘must have known’’
standard from Henry and invoking state’s affirmative
obligation from Moulton in case in which deliberate
elicitation was conceded by governemnt); Randolph v.
People, 380 F.3d 1133, 1144 (9th Cir. 2004) (‘‘Henry
makes clear that it is not the government’s intent or
overt acts that are important; rather, it is the ‘likely
. . . result’ of the government’s acts’’); Matteo v. Super-
intendent, SCI Albion, 171 F.3d 877, 895 (3d Cir.)
(applying intentional creation standard from Henry to
question of agency), cert. denied sub nom. Matteo v.
Brennan, 528 U.S. 824, 120 S. Ct. 73, 145 L. Ed. 2d 62(1999); United States v. Johnson, 4 F.3d 904, 912 (10th
Cir. 1993) (applying ‘‘ ‘affirmative obligation’ ’’ standard
from Moulton to question of agency), cert. denied, 510
U.S. 1123, 114 S. Ct. 1082, 127 L. Ed. 2d 398 (1994), and
cert. denied sub nom. Carroll v. United States, 510 U.S.
1123, 114 S. Ct. 1081, 127 L. Ed. 2d 398 (1994), and cert.
denied sub nom. Nottingham v. United States, 510 U.S.
1123, 114 S. Ct. 1081, 127 L. Ed. 2d 398 (1994); Depree
v. Thomas, 946 F.2d 784, 796 (11th Cir. 1991) (applying
‘‘must have known’’ standard from Henry to question
of agency); Thomas v. Cox, 708 F.2d 132, 136 (4th Cir.)
(‘‘The point at which agency—hence proper attribu-
tion—for this purpose arises out of a government-citi-
zen relationship is not subject to any bright-line test.
But we think a general benchmark can be derived from
Henry, [in which] the agency question did figure in the
[c]ourt’s factual analysis.’’), cert. denied, 464 U.S. 918,
104 S. Ct. 284, 78 L. Ed. 2d 262 (1983).25
The United States Supreme Court has yet to articulate
a test for determining agency under Massiah. Other
courts, however, have confronted that question directly.
Decisions of this court, in particular, provide some ini-
tial instruction in this regard. ‘‘There is no [bright-line]
test for determining when a private citizen is acting as
an agent of the police.’’ State v. Alexander, supra, 197
Conn. 183. ‘‘The existence of an agency relationship
. . . turns upon a number of factual inquiries into the
extent of police involvement with the informant. Those
inquiries include the following: whether the police have
promised the informant a reward for his cooperation
or whether he is self-motivated . . . whether the police
have asked the informant to obtain incriminating evi-
dence and placed him in a position to receive it . . .
and whether the information is secured as part of a
government initiated, [preexisting] plan.’’ (Internal quo-
tation marks omitted.) State v. Swinton, supra, 268
Conn. 855–56; accord State v. Marshall, 882 N.W.2d 68,
91 (Iowa 2016) (‘‘[I]t seems clear . . . that agency
under Massiah does not rely too heavily on traditional
principles of private contract or agency law, but instead
seems closer to the doctrine of state action. The ques-
tion, for constitutional purposes, is whether the actions
of an informant may be fairly attributed to the state.’’),
cert. denied, U.S. , 137 S. Ct. 829, 197 L. Ed. 2d
68 (2017).
The facts underlying State v. Swinton, supra, 268
Conn. 781, serve as a useful starting point. In that case,
a jailhouse informant, who previously had provided
information to the police in unrelated cases, overheard
the defendant making death threats against certain wit-
nesses. Id., 852–53. The informant later met with the
police, told them about the defendant’s statements, and
entered into a formal agreement with the state to serve
as a ‘‘ ‘listening post.’ ’’ Id., 853. After the informant
returned to prison, the defendant made further incrimi-
nating statements. Id. The trial court found that the
nature of the informant’s relationship had changed
when he entered into a formal agreement with the
police. Id., 853–54. Specifically, the trial court found
that, before the meeting, there was ‘‘no evidence what-
soever that the police had instructed [the informant] to
gather information about [the defendant’s] case, about
crimes in general, or about any other case in particular,
nor [was] there any evidence that the police had indi-
cated to [the informant] that he would be rewarded
in any way by providing information . . . .’’ (Internal
quotation marks omitted.) Id., 857. This court agreed,
noting that, although the informant had assisted the
police previously and ‘‘had some expectation that he
would benefit from providing information . . . there
was no evidence that the government had directed or
steered the informant toward the defendant.’’ Id., 858.
Neither the trial court in that case nor this court, how-
ever, had any difficulty concluding that the informant
was a government agent after entering into a formal
agreement with the state.26 Id., 859.
Cases from other jurisdictions help to draw the line
between entrepreneur and agent more precisely. The
United States Court of Appeals for the Second Circuit,27
for example, has held that ‘‘[a]n informant becomes a
government agent vis-à-vis a defendant when the infor-
mant is instructed by the police to get information about
[that] particular defendant.’’ (Internal quotation marks
omitted.) United States v. Whitten, 610 F.3d 168, 193
(2d Cir. 2010); see also United States v. LaBare, 191
F.3d 60, 65 (1st Cir. 1999); Moore v. United States, 178
F.3d 994, 999 (8th Cir.), cert. denied, 528 U.S. 943, 120
S. Ct. 356, 145 L. Ed. 2d 278 (1999).28
Other courts have looked at the government’s rela-
tionship with the informant more broadly and examined
the record for, among other things,29 evidence of prom-
ises or the provision of some benefit. See Thompson v.
Davis, 916 F.3d 444, 455 (5th Cir. 2019) (‘‘[t]o determine
whether an informant was a government agent for pur-
poses of a Massiah claim, the court asks whether the
informant was promised, reasonably led to believe, or
actually received a benefit in exchange for soliciting
information from the defendant . . . and whether he
acted pursuant to instructions from the [s]tate, or other-
wise submitted to the [s]tate’s control’’); United States
v. Johnson, supra, 4 F.3d 910–11 (agency may be sup-
ported by express or implied quid pro quo); see also
Ayers v. Hudson, supra, 623 F.3d 311 (‘‘although direct
written or oral instructions by the [s]tate to a jailhouse
informant to obtain evidence from a defendant would
be sufficient to demonstrate agency, it is not the only
relevant factor’’); Depree v. Thomas, supra, 946 F.2d
793–94 (‘‘[t]here is, by necessity, no bright-line rule for
determining whether an individual is a government
agent for purposes of the sixth amendment right to
counsel’’).
Courts have reached a general consensus that an
agency relationship may be established through either
implicit or explicit conduct. See State v. Marshall,
supra, 882 N.W.2d 91 (citing cases). Indeed, requiring a
defendant to produce admissible evidence of an explicit
agreement, promise, or instruction as a predicate to
relief would substantially diminish the protections
afforded under Massiah. See Ayers v. Hudson, supra,623 F.3d 312 (‘‘[t]o hold otherwise would allow the
[s]tate to accomplish ‘with a wink and a nod’ what it
cannot do overtly’’). Requiring proof of formal arrange-
ments is also in tension with the affirmative obligation
to protect a defendant’s right to counsel imposed by the
United States Supreme Court. See Maine v. Moulton,
supra, 474 U.S. 171.
The trial court in the present case correctly deter-
mined that the record does not evince an express or
formal agreement between Pladsen and Weaver. How-
ever, this is also not a case in which the state met
with a jailhouse informant only after the incriminating
statements had been elicited. See, e.g., State v. Swinton,
supra, 268 Conn. 857. Accordingly, we must determine
whether Pladsen’s conduct after meeting with Weaver
was, in light of all the facts presented, fairly attributable
to the state. See United States v. Henry, supra, 447 U.S.
270; State v. Marshall, supra, 882 N.W.2d 91. Although
the question is a close one in this case, we believe that,
on balance, Pladsen’s efforts to procure incriminating
statements from the defendant during the course of the
underlying trial were not the result of mere ‘‘luck or
happenstance . . . .’’ Maine v. Moulton, supra, 474 U.S.
176. Rather, we conclude that those efforts are fairly
attributable to the state.
First, the meeting between Pladsen and Weaver
placed a significant emphasis on what useful informa-
tion Pladsen might obtain as the result of his future
assistance. Indeed, Pladsen did not convey any informa-
tion of importance to Weaver during their initial meeting
at Northern. Instead, the two discussed the possibility
that Pladsen could elicit, and perhaps record, addi-
tional incriminating statements from the defendant at
some later point in time. Although the state is correct
to note that Weaver conditioned any formal plans on
approval by the Office of the State’s Attorney, the con-
tent of this particular conversation indicates, at the very
least, that the prospect of such assistance would be
considered.
Second, the meeting at Northern appears to have
focused Pladsen’s efforts on producing a particular type
of evidence. Pladsen’s letter to Weaver offered to pro-
vide information against the defendant but referenced
only unrelated criminal charges.30 During the meeting
that followed, Weaver and Pladsen expressly discussed
the defendant’s involvement in the victim’s death.
Weaver asked Pladsen if he would be comfortable wear-
ing a wire, plainly stated that the police were ‘‘always
interested’’ in verifiable information from reliable
sources, and then left Pladsen with his contact informa-
tion. In this context, one could readily infer that the
state was principally interested in objectively verifiable
forms of evidence regarding the defendant’s involve-
ment in this particular case, such as a recording or
writing. Although Weaver made no explicit requests
during this meeting, the handwritten note that Pladsen
ultimately produced during the state’s case-in-chief mir-
rored those requirements precisely.31
Third, Pladsen clearly sought assurance from Weaver
that a benefit would be made available in exchange for
his cooperation. See footnote 11 of this opinion. Weaver
said that he could not personally make any promises,
but his response (1) informed Pladsen that the Office
of the State’s Attorney would have to approve any ‘‘deals,’’
and (2) made Pladsen ‘‘generally aware’’ of the fact that
‘‘any information received’’ would be conveyed to the
Office of the State’s Attorney. Weaver said that he would
be willing to listen to anything Pladsen had to say, and
Pladsen said that he understood. Although Weaver did
not connect these dots in explicit terms, the presence
of such express language is not necessarily required
for the reasons stated previously. See State v. Arroyo,
292 Conn. 558, 568, 973 A.2d 1254 (2009) (‘‘the expecta-
tion of a [r]eward for testifying is a systemic reality . . .
even where the informant has not received an explicit
promise of a reward’’ (citation omitted; internal quota-
tion marks omitted)), cert. denied, 559 U.S. 911, 130 S.
Ct. 1296, 175 L. Ed. 2d 1086 (2010); see also McBeath v.
Commonwealth, 244 S.W.3d 22, 33–34 (Ky. 2007) (there
was some evidence that informant acted with expecta-
tion of future benefit when officer responded to infor-
mant’s inquiry by stating ‘‘ ‘[t]hat’s up to the prosecu-
tor’ ’’).
The fact that the state did not object to Pladsen’s
attempt to pursue a modification of his twenty-five year
sentence is also relevant.32 As we noted previously, Plad-
sen’s testimony indicates that this precise exchange was
discussed during his meeting with Weaver at Northern.
Indeed, the state does not appear to contest that, as a
factual matter, Pladsen ultimately was permitted to
seek a sentence modification as the result of his assis-
tance in the present case. Although Pladsen’s efforts in
that regard ultimately proved unsuccessful, the state’s
forbearance of its unilateral right to veto such a pro-
ceeding in its entirety pursuant to § 53a-39 (b) provided
something objectively valuable in exchange for Plad-
sen’s cooperation. Cf. United States v. Brink, 39 F.3d
419, 423 n.5 (3d Cir. 1994). In the sixth amendment
context, the provision of such an actual benefit in
exchange for an informant’s cooperation serves as at
least some evidence of agency. See United States v.
Johnson, supra, 4 F.3d 910–11; United States v. York,
933 F.2d 1343, 1358 (7th Cir.) (overruled on other
grounds by Wilson v. Williams, 182 F.3d 562 (7th Cir.
1999)), cert. denied, 502 U.S. 916, 112 S. Ct. 321, 116 L.
Ed. 2d 262 (1991); United States v. Surridge, 687 F.2d
250, 254 (8th Cir.), cert. denied, 459 U.S. 1044, 103 S.
Ct. 465, 74 L. Ed. 2d 614 (1982).
Finally, the sixth amendment concerns in the present
case must be viewed in light of the defendant’s confine-
ment. As the United States Supreme Court has noted,
‘‘the mere fact of custody imposes pressures on the
accused; confinement may bring into play subtle influ-
ences that will make him particularly susceptible to
the ploys of undercover [g]overnment agents.’’ United
States v. Henry, supra, 447 U.S. 274; see Matteo v. Super-
intendent, SCI Albion, supra, 171 F.3d 895; see also
Illinois v. Perkins, 496 U.S. 292, 307, 110 S. Ct. 2394, 110
L. Ed. 2d 243 (1990) (Marshall, J., dissenting) (‘‘Custody
works to the [s]tate’s advantage in obtaining incriminat-
ing information. The psychological pressures inherent
in confinement increase the suspect’s anxiety, making
him likely to seek relief by talking with others.’’). In
this context, ‘‘the government has long been on notice
that the use of prison informants risks treading on the
constitutional rights of an accused . . . .’’ United
States v. Stevens, 83 F.3d 60, 65 (2d Cir.), cert. denied,
519 U.S. 902, 117 S. Ct. 255, 136 L. Ed. 2d 181 (1996).33
To summarize, Weaver met with Pladsen and
expressed an interest in obtaining verifiable evidence of
incriminating statements from this particular defendant
regarding this particular case. Although there was no
‘‘agreement,’’ ‘‘contract,’’ ‘‘mutual understanding,’’ or
‘‘meeting of the minds,’’ the two expressly discussed
Pladsen’s desire for a benefit in exchange for his cooper-
ation in the present case, and, in fact, the state actually
provided such a benefit to Pladsen after the desired
evidence was produced. Although the record does not
evince any particular ‘‘plan’’ or ‘‘instruction,’’ Weaver
knew from the initial letter that Pladsen had strong
incentives to cooperate as the result of his incarceration
and consecutive sentences, had already gained the
defendant’s trust, and was in a uniquely strong position
to question the defendant at length. After Weaver told
Pladsen that he was interested in hearing new evidence
relating to the victim’s death—by, for example, sug-
gesting the use of a wire—additional control would
have been superfluous. We conclude that the state
either knew or should have known that such a conversa-
tion was likely to end in further deliberate elicitation.34
Notwithstanding the eventual likelihood of such
efforts by Pladsen, very little was done to protect the
defendant’s sixth amendment rights. During the meet-
ing at Northern, Weaver could have expressly instructed
Pladsen to cease deliberately eliciting information from
the defendant or to avoid conversations regarding the
present case until the Office of the State’s Attorney
could provide guidance on how to proceed. Although
the Office of the State’s Attorney ultimately instructed
Weaver not to pursue this avenue, that fact was never
communicated to Pladsen. Weaver’s general admoni-
tion that any plans or deals would have to be formally
approved, the impact of which is unclear; see footnote
12 of this opinion; was ‘‘a far cry from the express
and appropriate warnings’’ that should have been given.
State v. Howell, Superior Court, judicial district of New
Britain, Docket No. CR-05-222048-S (January 30, 2007)
(Sheldon, J.).35 On the basis of the record presently
before us, we simply cannot conclude that the state
has satisfied its affirmative obligation under Massiah
and its progeny to respect and preserve the defendant’s
invocation of his constitutional right to counsel. See
Maine v. Moulton, supra, 474 U.S. 171.
The trial court’s remaining findings of historical fact
do not alter this analysis. Although Pladsen was housed
with the defendant by chance, that same fact was of
no moment in United States v. Henry, supra, 447 U.S.
268. Likewise, the fact that Pladsen initiated contact
with the police does not diminish the possibility that
the state subsequently took advantage of the opportu-
nity that contact created. See Maine v. Moulton, supra,474 U.S. 176 (‘‘knowing exploitation by the [s]tate of
an opportunity to confront the accused without counsel
being present is as much a breach of the [s]tate’s obliga-
tion not to circumvent the right to the assistance of
counsel as is the intentional creation of such an oppor-
tunity’’). Finally, although the defendant’s subjective
knowledge that Pladsen was speaking with Weaver may
be relevant to an analysis of waiver; see United States
v. Henry, supra, 273; the question of agency must be
resolved by an examination of the facts relating to the
nature of the relationship between the state and the
defendant’s interrogator.36
For the foregoing reasons, we conclude that a scrupu-
lous examination of the undisputed facts contained
within the record of the present case establishes that
the defendant has satisfied his burden of demonstrating
the existence of an agency relationship under Massiah.
The trial court’s denial of the motion to suppress Plad-
sen’s testimony was, therefore, improper. As a result,
the defendant is entitled to a new trial.
II
The defendant next claims that there is insufficient
evidence that he had ‘‘remain[ed] unlawfully’’ in the
victim’s apartment, as required to sustain a conviction
on the charge of burglary in the first degree under
General Statutes (Rev. to 2001) § 53a-101 (a) (2).37 The
defendant’s sole argument in support of this claim is
that State v. Allen, 216 Conn. 367, 382, 579 A.2d 1066(1990), should be overruled because it ‘‘impermissibly
merges the [element] of remaining unlawfully and the
intent to commit a crime’’ by holding that proof of any
indoor criminal act satisfies both elements. The state
agrees with the defendant’s reading of Allen but never-
theless argues that its holding should be allowed to
stand as settled law. We conclude, however, that the
holding of that case stands for the far narrower proposi-
tion that the state may prove an unlawful remaining by
producing evidence that a defendant has engaged in
conduct that was likely to terrorize occupants. State v.
Allen, supra, 382–84. For the reasons that follow, we
decline the defendant’s invitation to overrule that hold-
ing.
Although this claim is framed as a question of eviden-
tiary sufficiency, the issue presented relates to the
proper construction of this state’s burglary statutes and,
more particularly, the scope of the phrase ‘‘enters or
remains unlawfully . . . .’’ General Statutes (Rev. to
2001) § 53a-101 (a). The question of whether our con-
struction of that statutory language in Allen should be
overruled raises an issue of law that is subject to plenary
review. See, e.g., State v. Salamon, 287 Conn. 509, 529,
949 A.2d 1092 (2008); see also, e.g., Spiotti v. Wolcott,
326 Conn. 190, 195, 163 A.3d 46 (2017).
‘‘The doctrine of stare decisis counsels that a court
should not overrule its earlier decisions unless the most
cogent reasons and inescapable logic require it.’’ (Inter-
nal quotation marks omitted.) Commission on Human
Rights & Opportunities v. Sullivan, 285 Conn. 208, 216,
939 A.2d 541 (2008). ‘‘In evaluating the force of stare
decisis, our case law dictates that we should be espe-
cially wary of overturning a decision that involves the
construction of a statute. . . . When we construe a
statute, we act not as plenary lawgivers but as surro-
gates for another policy maker, [that is] the legislature.
In our role as surrogates, our only responsibility is to
determine what the legislature, within constitutional
limits, intended to do. Sometimes, when we have made
such a determination, the legislature instructs us that
we have misconstrued its intentions. We are bound by
the instructions so provided. . . . More often, how-
ever, the legislature takes no further action to clarify
its intentions. Time and again, we have characterized
the failure of the legislature to take corrective action
as manifesting the legislature’s acquiescence in our con-
struction of a statute. . . . Once an appropriate inter-
val to permit legislative reconsideration has passed
without corrective legislative action, the inference of
legislative acquiescence places a significant jurispru-
dential limitation on our own authority to reconsider
the merits of our earlier decision.’’ (Internal quotation
marks omitted.) Id., 216–17.
We begin by setting forth the relevant statutory lan-
guage. General Statutes (Rev. to 2001) § 53a-101 (a) (2)
provides in relevant part that ‘‘[a] person is guilty of
burglary in the first degree when he enters or remains
unlawfully in a building with intent to commit a crime
therein and . . . in the course of committing the
offense, he intentionally, knowingly or recklessly
inflicts or attempts to inflict bodily injury on anyone.’’38
General Statutes (Rev. to 2001) § 53a-100 (b), in turn,
provides that ‘‘[a] person ‘enters or remains unlawfully’
in or upon premises when the premises, at the time of
such entry or remaining, are not open to the public and
when the actor is not otherwise licensed or privileged
to do so.’’39
In State v. Allen, supra, 216 Conn. 379, this court
considered whether there was sufficient evidence to
support a conviction of burglary in the first degree. In
addressing that claim, we began by noting that the
phrase ‘‘licensed or privileged’’ was ‘‘meant as a unitary
phrase, rather than as a reference to two separate con-
cepts.’’ (Internal quotation marks omitted.) Id., 380.
Drawing from a previous Appellate Court decision, we
explained: ‘‘A license in real property is defined as a
personal, revocable, and unassignable privilege, con-
ferred either by writing or parol, to do one or more
acts on land without possessing any interest therein.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id., quoting State v. Grant, 6 Conn. App. 24, 29,
502 A.2d 945 (1986).
In Allen, the evidence showed that the defendant had
entered the subject premises, a condominium, with an
accomplice who had a key. State v. Allen, supra, 216
Conn. 381. The defendant was then led upstairs where
the occupant of the home was tied up, unclothed, and
gagged. Id., 381–82. Although the victim looked to the
defendant for assistance, none was given. Id. Instead,
the defendant stole some of the victim’s property and
watched while his accomplice choked the victim. Id.,
382. On the basis of these facts, this court rejected the
defendant’s claim that there was insufficient evidence
of an unlawful remaining. Id. Specifically, we reasoned
that, ‘‘even if the defendant initially entered the victim’s
condominium lawfully, it is clear that consent to remain
was implicitly withdrawn and thus that the [defendant]
unlawfully remained within the meaning of the statute.’’
(Internal quotation marks omitted.) Id.In Allen, this court distinguished State v. Thomas,
210 Conn. 199, 204, 554 A.2d 1048 (1989), a case that
involved a convenience store robbery. We indicated
that the holding of Thomas—namely, that ‘‘a defendant
does not lose his status as a member of the public by
manifesting a criminal intent’’—was relevant only in
cases in which the premises were held ‘‘ ‘open to the
public’ ’’ and, therefore, did ‘‘not apply to a private
dwelling that requires the continued consent of its occu-
pant.’’40 State v. Allen, supra, 216 Conn. 383–84. We
then reiterated that the purpose of the statutory phrase
‘‘enters or remains unlawfully’’ is ‘‘to make clear that
only the kind of entry or remaining [that] is likely to
terrorize occupants is prohibited by the crime of bur-
glary.’’ (Internal quotation marks omitted.) Id., 384. In
Allen, we readily concluded that ‘‘the element of terror
was present’’ and that ‘‘seeing the victim naked, gagged,
and tied up on the floor, and seeing [his accomplice]
threaten, strike and choke the victim while the victim,
in terror, looked for help, all clearly indicated to the
defendant that, even if there were consent for his ini-
tially entering the condominium, it had been [implicitly]
withdrawn.’’ Id.The defendant in the present case suggests that Allen
‘‘conflate[s] the elements of intent and unlawful remain-
ing.’’ Specifically, the defendant asserts that our reason-
ing in that case implies that ‘‘a person’s license to be
on the property is revoked simply because he commits
a crime inside the premises . . . .’’ Put differently, the
defendant claims that, under Allen, ‘‘every person who
commits a crime while inside a building also commits
a burglary . . . .’’ The defendant argues that, instead,
this court should restrict unlawful remaining to surrep-
titious conduct.41 In presenting these arguments, the
defendant relies on case law from other jurisdictions,
this state’s plain meaning rule, as embodied in General
Statutes § 1-2z, and various cannons of statutory con-
struction.
Neither Allen nor its progeny, however, supports the
defendant’s interpretation of this court’s reasoning.
Indeed, that case was expressly dependent on the vic-
tim’s sense of terror. Broadening the holding of that
case to reach any indoor criminal act would not only
dispense with that requirement but also with the need
for any occupants at all. Although such facts are not
always required for the commission of a burglary; com-
pare General Statutes § 53a-102 (a) (occupancy is
required for burglary in second degree) with General
Statutes § 53a-101 (a) (3) (occupancy is not required for
burglary in first degree); or for a finding of an unlawful
remaining itself; see footnote 40 of this opinion; the
fact that the defendant’s presence was ‘‘likely to terror-
ize’’ the victim in Allen was indispensable to our conclu-
sion that any existing license or privilege to remain
had been implicitly revoked. (Internal quotation marks
omitted.) State v. Allen, supra, 216 Conn. 384.
This narrower reading of Allen is bolstered by the
fact that the Appellate Court has consistently restricted
its application to cases in which the state has presented
evidence that the defendant engaged in conduct likely
to terrorize occupants. See, e.g., State v. Marsan, 192
Conn. App. 49, 53–54, 56–61, 216 A.3d 818 (declining to
extend Allen to case in which home aide stole from
client’s unoccupied home), cert. denied, 333 Conn. 939,
218 A.3d 1049 (2019); State v. Bharrat, 129 Conn. App.
1, 26–27, 20 A.3d 9 (implicit revocation of license or
privilege to remain when defendant awoke victim by
stabbing him to death with knife), cert. denied, 302
Conn. 905, 23 A.3d 1243 (2011); State v. Morocho, 93
Conn. App. 205, 219, 888 A.2d 164 (‘‘whatever possible
license the defendant thought he had to enter the vic-
tim’s bedroom . . . that license was withdrawn when
he refused to identify himself, charged toward the vic-
tim, lay on top of her and attempted to kiss and to
touch her all over her body’’), cert. denied, 277 Conn.
915, 895 A.2d 792 (2006); State v. Brooks, 88 Conn. App.
204, 208 n.2, 868 A.2d 778 (‘‘[e]ven if the evidence could
be construed to show an implicit consent to the defen-
dant’s entry into [the] apartment, [a] vicious assault
. . . was clearly not within the scope of that consent’’),
cert. denied, 273 Conn. 933, 873 A.2d 1001 (2005); State
v. Gelormino, 24 Conn. App. 563, 572, 590 A.2d 480(‘‘even if the evidence could be construed to show the
victim’s implicit consent to the defendant’s entry, the
vicious assault perpetrated on the victim was clearly
not within the scope of that consent’’), cert. denied,
219 Conn. 911, 593 A.2d 136 (1991); see also State v.
Stagnitta, 74 Conn. App. 607, 615, 813 A.2d 1033(although defendant’s status as employee may have pro-
vided license or privilege to enter private office while
restaurant was closed to public, ‘‘that privilege did not
extend to entering the office displaying an eight to ten
inch knife and demanding money’’), cert. denied, 263
Conn. 902, 819 A.2d 838 (2003). The defendant has not
cited, and our research has not discovered, any appel-
late authority extending the holding of Allen beyond
this context.
The fact that our legislature has declined to express
any disagreement with this line of cases over the course
of nearly three decades counsels strongly against over-
ruling Allen in favor of a more restrictive statutory
interpretation. See, e.g., Commission on Human Rights
& Opportunities v. Sullivan, supra, 285 Conn. 216–17.
This is especially true because the legislature has made
unrelated amendments to the relevant statutory scheme.
See Stuart v. Stuart, 297 Conn. 26, 47, 996 A.2d 259(2010) (argument in favor of ‘‘[l]egislative concurrence
is particularly strong [when] the legislature makes unre-
lated amendments in the same statute’’ (internal quota-
tion marks omitted)). Specifically, our legislature passed
a series of comprehensive amendments to this state’s
burglary statutes in 2008 that not only retained the
phrase ‘‘enters or remains unlawfully’’ in § 53a-101 (a)
and the existing statutory definition set forth in § 53a-
100 (b), but also added several new instances of that
exact same statutory phrase. Public Acts, Spec. Sess.,
January, 2008, No. 08-1, §§ 1, 2 and 4. We may presume
that the legislature was aware of Allen and its progeny
when doing so. See, e.g., R.C. Equity Group, LLC v.
Zoning Commission, 285 Conn. 240, 257 n.20, 939 A.2d
1122 (2008).
The defendant’s various arguments do not warrant
the opposite result. The defendant, citing § 1-2z, encour-
ages this court to abandon the existing line of cases
and to begin the process of statutory construction anew.
We decline to do so. See, e.g., Kasica v. Columbia, 309
Conn. 85, 93–94 and n.10, 70 A.3d 1 (2013) (in interpre-
ting statutory text, this court is bound by our prior
constructions of statute); Hummel v. Marten Trans-
port, Ltd., 282 Conn. 477, 501, 923 A.2d 657 (2007)
(enactment of § 1-2z did not overrule existing case law).
Although an argument in favor of overruling established
precedent may well be strengthened by tension with a
statute’s plain meaning, we can discern no such conflict
in the present case. When a building is not open to the
public, the relevant statutory inquiry turns on whether
a defendant was ‘‘licensed or privileged’’ to remain.
General Statutes (Rev. to 2001) § 53a-100 (b). The hold-
ing of Allen, which merely stated the standard for prov-
ing the absence of such a license or privilege in a partic-
ular factual setting, is facially consistent with that
requirement. Finally, the defendant’s argument that
Allen results in statutory surplusage because it dis-
penses with the element of an unlawful entry or
remaining is logically dependent on the premise that
any indoor criminal conduct necessarily gives rise to
an implicit revocation. Because, as we previously indi-
cated, the holding in Allen extends only to conduct
by a defendant that is ‘‘likely to terrorize occupants’’;
(internal quotation marks omitted) State v. Allen, supra,
216 Conn. 384; the distinct elements of the crime of
burglary remain.
The defendant is correct that intermediate appellate
courts in New York have declined to conclude that viop
lent conduct gives rise to an implicit revocation of a
defendant’s license or privilege to remain. See People
v. Bowen, 17 App. Div. 3d 1054, 1055, 794 N.Y.S.2d
203, appeal denied, 5 N.Y.3d 759, 834 N.E.2d 1264, 801
N.Y.S.2d 254 (2005); People v. Konikov, 160 App. Div.
2d 146, 152–53, 559 N.Y.S.2d 901, appeal denied, 76
N.Y.2d 941, 564 N.E.2d 680, 563 N.Y.S.2d 70 (1990). The
conclusion reached in Allen, however, is consistent with
the law in states other than New York. See Davis v.
State, 737 So. 2d 480, 484 (Ala. 1999) (‘‘[E]vidence of
a struggle giving rise to the inference of an unlawful
remaining is supplied by [the defendant’s] choice to kill
by a [less than instantaneous] technique of strangula-
tion and by his use of three nonfatal stab wounds to
the victim’s lower back. Based on the circumstances
suggested by the evidence, the jury reasonably could
have found that [the defendant], from the point at which
he began committing his criminal acts, ‘remain[ed]
unlawfully’ in [the victim’s] home with the intent to
commit a crime.’’); Sparre v. State, 164 So. 3d 1183, 1200–
1201 (Fla.) (defendant’s invitation to premises was
‘‘effectively rescinded’’ when victim began attempting
futilely to defend herself from fatal attack), cert. denied,
U.S. , 136 S. Ct. 411, 193 L. Ed. 2d 325 (2015);
State v. Walker, 600 N.W.2d 606, 610 (Iowa 1999) (vic-
tim’s begging and resistance to assault amounted to
implicit revocation of defendant’s license to remain).
Notwithstanding common origins, modern burglary law
often differs significantly between jurisdictions. See
Quarles v. United States, U.S. , 139 S. Ct. 1872,
1879, 204 L. Ed. 2d 200 (2019). Such variations are,
without more, generally insufficient to overcome the
weighty considerations attendant to stare decisis.42 See,
e.g., Graham v. Commissioner of Transportation, 330
Conn. 400, 420, 195 A.3d 664 (2018).
In light of the foregoing, we decline the defendant’s
invitation to overrule Allen and its progeny. The defen-
dant advances no argument on appeal that the conduct
at issue in the present case was unlikely to terrorize
the victim. As a result, the defendant’s sufficiency of
the evidence claim relating to the crime of burglary in
the first degree must fail.
III
Finally, we address the defendant’s claim of instruc-
tional error because we conclude that the issue of third-
party culpability is likely to arise on remand. The defen-
dant contends that a third-party culpability instruction
was reasonably supported by the evidence relating to
unidentified male DNA discovered on the victim’s vagi-
nal swab, her shoulder, and her bedroom doorframe.
In response, the state argues that this evidence was
insufficient to support such an instruction.43 Specifi-
cally, the state argues that this evidence establishes
only that ‘‘the victim may have socialized, done drugs,
and had sex with various men in the days preceding
her death’’ and, therefore, fails to establish a direct
connection ‘‘between any particular third party and the
crimes against the victim . . . .’’
The following additional facts and procedural history
are relevant to our discussion of this claim. Carll Ladd,
the supervisor of the DNA section of the state forensic
laboratory, testified at trial that a particular test had
indicated that both the defendant and a second, uniden-
tified male were contributors to DNA on the victim’s
vaginal swab.44 Ladd also testified that the defendant
was excluded as a contributor to certain unidentified
male DNA in saliva discovered on the victim’s shoul-
der.45 Finally, Ladd testified that the defendant also was
excluded as a contributor to certain unidentified male
DNA discovered at the location of a transfer bloodstain
on the victim’s bedroom doorframe.46 Ladd testified that
he did not know precisely when any of this male DNA
was deposited.
The defendant’s revised request to charge included
the following proposed instruction regarding evidence
of third-party involvement: ‘‘You are hereby instructed
that a defendant may offer proof [that] indicates that
a third party, and not the defendant, committed some
of the acts for which the defendant is on trial. The
defendant must, however, show some evidence which,
if believed, tends to directly connect a third party to
said acts. The primary object of the third-party suspect
testimony is not to prove the guilt of the third party
but to raise a reasonable doubt about the guilt of the
defendant. In the present case, you have heard evidence
concerning the presence of the DNA of a person or
persons other than [the defendant] and [the victim] at
the scene of the crime. If that evidence leaves you with
a reasonable doubt as to [the defendant’s] guilt, you
must find him not guilty.’’47
The state objected to this proposed instruction at a
charging conference held on June 12, 2007. In response,
defense counsel asserted that such an instruction was
warranted by ‘‘the forensics’’ proffered at trial, citing
State v. Cerreta, 260 Conn. 251, 260–62, 796 A.2d 1176(2002). After hearing arguments, the trial court con-
cluded that the defendant had failed to establish entitle-
ment to a third-party culpability instruction.
‘‘In determining whether the trial court improperly
refused a request to charge, [w]e . . . review the evi-
dence 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 instruc-
tions are reasonably supported by the evidence.’’ (Inter-
nal quotation marks omitted.) State v. Schovanec, 326
Conn. 310, 318–19, 163 A.3d 581 (2017). This court has
previously stated that ‘‘the very standards governing
the admissibility of [third-party] culpability evidence
also should serve as the standards governing a trial
court’s decision of whether to submit a requested [third-
party] culpability charge to the jury.’’ State v. Arroyo,
284 Conn. 597, 608–609, 935 A.2d 975 (2007).
We note that, although Arroyo did not expressly state
a particular standard of review for claims of instruc-
tional error related to third-party culpability, this court
has previously reviewed such claims under an abuse
of discretion standard. See State v. Schovanec, supra,
326 Conn. 320–23; State v. Jackson, 304 Conn. 383, 424,
40 A.3d 290 (2012); see also State v. James, 141 Conn.
App. 124, 137, 60 A.3d 1011, cert. denied, 308 Conn. 932,
64 A.3d 331 (2013); cf. State v. Ceballos, 266 Conn. 364,
422, 832 A.2d 14 (2003) (‘‘[w]e review a trial court’s
refusal to give a child credibility instruction for abuse
of discretion because that instruction is not for the
statement of any rule of law but for a cautionary com-
ment upon the evidence’’ (internal quotation marks
omitted)); State v. Hines, 243 Conn. 796, 816, 709 A.2d
522 (1998) (‘‘[t]he decision whether to give an instruc-
tion on flight, as well as the content of such an instruc-
tion, if given, should be left to the sound discretion of
the trial court’’).
The admissibility of third-party culpability evidence
is generally ‘‘governed by the rules relating to relevancy.
. . . Relevant evidence is evidence having any ten-
dency to make the existence of any fact that is material
to the determination of the proceeding more probable
or less probable than it would be without the evidence.
. . . [E]vidence that establishes a direct connection
between a third party and the charged offense is rele-
vant to the central question before the jury, namely,
whether a reasonable doubt exists as to whether the
defendant committed the offense. Evidence that [raises]
only a bare suspicion that a third party, rather than
the defendant, committed the charged offense [is not]
relevant to the jury’s determination.’’ (Internal quota-
tion marks omitted.) State v. Schovanec, supra, 326
Conn. 319; see also State v. Baltas, 311 Conn. 786, 810,
91 A.3d 384 (2014) (‘‘in explaining the requirement that
the proffered evidence establish a direct connection to
a third party, rather than raise merely a bare suspicion
regarding a third party, we have stated [that] [s]uch
evidence is relevant, exculpatory evidence, rather than
merely tenuous evidence of [third-party] culpability’’
(internal quotation marks omitted)).
‘‘[I]n some cases, the location of [physical] evidence
at a particular crime scene will give rise to a reasonable
inference that the evidence was left at the scene by a
perpetrator of the crime, such as when the relationship
between the evidence and crime scene is close and
direct . . . .’’ (Citation omitted.) State v. West, 274
Conn. 605, 626–27, 877 A.2d 787, cert. denied, 546 U.S.
1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005). This nexus,
however, necessarily attenuates with distance. See id.,
627 (concluding that evidence discovered ‘‘at the
periphery of the crime scene’’ lacked probative value).
A comparison of our decisions in Cerreta and West is
illustrative of this principle.
In State v. Cerreta, supra, 260 Conn. 253, this court
considered a claim that third-party culpability evidence
was improperly excluded in violation of the defendant’s
right to present a defense under the sixth and fourteenth
amendments to the United States constitution. The vic-
tim in that case, a seventy-four year old woman, died
from asphyxia after being bound with a sock in her
mouth. Id., 254. The defendant, who had been charged
with murder, sought to introduce forensic evidence con-
nected to the crime scene. Id., 253. Specifically, the
defendant submitted evidence indicating that hairs
found on both the victim’s body and the ligatures used
to bind her had not come from him. Id., 257–59. The
defendant also sought to introduce evidence that finger-
prints from a third party had been discovered on various
personal effects strewn about the victim’s body. Id., 254,
259. The trial court excluded these pieces of forensic
evidence on relevancy grounds. Id., 259. On appeal, the
defendant claimed that the proffered evidence should
have been admitted because it ‘‘was relevant to the
question of whether someone [else had] committed the
crime . . . charged.’’ Id. The state responded by
arguing, among other things, that the forensic evidence
stopped short of ‘‘conclusively exonerating the defen-
dant’’; id., 260; and was irrelevant ‘‘because it was
impossible to determine exactly when the hair and fin-
gerprints were left where the police discovered them.’’
Id., 263.
This court agreed with the defendant, concluding that
it could ‘‘discern no reasonable basis for concluding
that the exculpatory evidence the defendant sought to
introduce was irrelevant.’’ Id., 262. Specifically, we held
that ‘‘[e]vidence that a third party’s hair and fingerprints
were found at the crime scene [raised] more than a
bare suspicion that someone other than the defendant
may have committed the crime. Rather, the excluded
evidence established a direct connection between the
unidentified source of hair and fingerprints and the
scene of the murder. Such evidence meets the threshold
requirement that it directly connect a third party to the
crime.’’48 Id., 263. We then rejected the state’s arguments
to the contrary: ‘‘The hair and fingerprints were recov-
ered not from the periphery of the crime scene but from
the victim’s body, the ligatures used to bind her hands
and feet, and the personal effects on and around her
body. This evidence was central to the only contested
issue at trial: the identity of the perpetrator. Although
it may be the case that this evidence would not have
exonerated the defendant unequivocally, such is not
the standard for relevance. All that must be shown is
that the evidence tends to support the conclusion for
which it is offered, even if it does so only to a slight
degree.’’ Id.
By contrast, in State v. West, supra, 274 Conn. 610,
this court concluded that the trial court did not abuse
its discretion by excluding certain forensic evidence
recovered from a crime scene. The defendant in that
case, who was charged with murder, sought to intro-
duce evidence eliminating her as the source of unidenti-
fied latent prints discovered in the victim’s home on a
second floor bathroom door and on the doorjamb of a
first floor bedroom. Id., 609, 623. The defendant claimed
‘‘that the unidentified . . . [prints were] relevant, and
therefore admissible, because that evidence established
that a person or persons other than the defendant were
present in those areas of [the] home where the intruder
had gone after entering . . . namely, the second floor
and the first floor master bedroom.’’ Id., 626. We
rejected that argument, concluding that the prints could
have been ‘‘made weeks, months or even years before’’
the crimes at issue. Id. We noted that, although the
location of such evidence can ‘‘give rise to a reasonable
inference that the evidence was left at the scene by
a perpetrator . . . when the relationship between the
evidence and crime scene is close and direct,’’ the prints
at issue in that case ‘‘were located at the periphery of
the crime scene, where . . . they may have been left
by any number of invitees . . . .’’ Id., 626–27. We
remarked that, ‘‘[b]ecause the nexus between the prints
and the crime scene [was] so attenuated, and because
there [were] so many likely explanations for the prints
aside from the mere possibility that they were left by
an unidentified perpetrator, the evidence of the prints
[was] lacking in probative value.’’49 Id., 627. Accordingly,
this court concluded that the trial court did not abuse
its discretion by excluding the unidentified prints that
the defendant had sought to admit. Id.
The evidence forming the basis of the defendant’s
request for a third-party culpability instruction in the
present case was, of course, admitted into evidence
and placed before the jury.50 The trial court’s initial
decision to admit that evidence does not, however, nec-
essarily compel the issuance of a third-party culpability
instruction as a matter of law.51 ‘‘Whether a defendant
has sufficiently established a direct connection between
a third party and the crime with which the defendant
has been charged is necessarily a fact intensive inquiry.’’
State v. Baltas, supra, 311 Conn. 811. A trial court must
make that decision on the basis of the totality of the
evidence actually admitted at trial. See State v. Mar-
shall, 114 Conn. App. 178, 187, 969 A.2d 202 (noting
fluid nature of trials), cert. denied, 292 Conn. 911, 973
A.2d 661 (2009).
In order to determine whether the evidence actually
admitted during the course of the defendant’s trial would
have supported a third-party culpability instruction, we
look to the context surrounding it and the guiding prin-
ciples set forth in Cerreta and West. See State v. Arroyo,
supra, 284 Conn. 608–609. It cannot be said that two of
the DNA samples found on the victim’s body—namely,
the samples from her vaginal swab and from the saliva
on her shoulder—were recovered from the periphery
of the crime scene. Like the hair in Cerreta, that evi-
dence was recovered directly from the victim’s body.
It is important to note that context, and not proxim-
ity alone, is necessary to establish a direct connection
between forensic evidence and a third party to the crime.
In the present case, for example, Ladd gave a ‘‘general
estimate’’ that the unidentified male DNA found on the
victim’s vaginal swab could have lasted for up to three
days. Given this longer time frame, the unidentified
male DNA on the victim’s vaginal swab, in and of itself,
would have been insufficient to require a third-party
culpability instruction as a matter of law. The male DNA
on the victim’s shoulder, however, would have existed
for a more limited duration and was not otherwise
explained by the record. Finally, the unidentified male
DNA on the doorframe of the victim’s bedroom was
recovered from a location that was, undisputedly, cov-
ered in the victim’s blood during the commission of the
crimes charged. That fact readily distinguishes it from
the prints on the doorjamb in West.
The state argues that the evidence of the unidentified
male DNA discovered at the crime scene was wholly
irrelevant because ‘‘there was no evidence as to when
any of that DNA had been deposited or to whom it
belonged.’’ The fact that both the source of the DNA and
the exact time that it was deposited remained unknown
does not, however, require a conclusion that the evi-
dence was irrelevant. Indeed, this court readily con-
cluded that the evidence at issue in Cerreta was admissi-
ble, notwithstanding the absence of proof regarding
those same facts. See State v. Cerreta, supra, 260 Conn.
263 (‘‘The state took the position . . . that the
excluded evidence was unreliable, and therefore irrele-
vant, because it was impossible to determine exactly
when the hair and fingerprints were left where the
police discovered them. We find no merit in this argu-
ment.’’).
Viewing all of the evidence contained in the record
in the light most favorable to supporting the proposed
charge; see, e.g., State v. Schovanec, supra, 326 Conn.
318; we conclude that the defendant satisfied the thresh-
old requirement of establishing a direct connection
between at least some of the unidentified male DNA
discovered in the victim’s apartment and the various
crimes alleged. Because the DNA on the victim’s shoul-
der and the bedroom doorframe would have reasonably
supported an instruction on third-party culpability, we
conclude that the trial court abused its discretion by
declining to provide such an instruction to the jury.52
The judgment is reversed and the case is remanded
for a new trial.
In this opinion PALMER, McDONALD, D’AURIA,
KAHN and ECKER, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Robinson and Justices Palmer, McDonald,
D’Auria, Mullins, Kahn and Ecker. Although Justice Palmer was not present
when the case was argued before the court, he has read the briefs and
appendices, and listened to a recording of the oral argument prior to partici-
pating in this decision.
** August 6, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The defendant appealed directly to this court pursuant to General Stat-
utes § 51-199 (b) (4).
2
The defendant has raised more than two dozen additional claims on
appeal. These claims relate to, inter alia, isolated evidentiary rulings, the
posttrial discovery of evidence, and certain inadvertent mistakes or omis-
sions. Still other claims arise from various tactical decisions. In light of the
information contained in the record and the positions adopted by the parties
in their briefs, we are unable to conclude that such claims are likely to
arise on remand. Accordingly, we decline to review those claims in the
present appeal.
3
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-
86e; see also, e.g., State v. Weatherspoon, 332 Conn. 531, 536 n.3, 212 A.3d
208 (2019).
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
5
The defendant’s statement indicated that the victim had attacked him
in the kitchen with a knife. The defendant stated that the resulting struggle
moved to the bedroom and that the victim had eventually asked, ‘‘[w]hat
do you want sex?’’ The defendant allegedly said yes and then had unprotected
sex with the victim. The defendant stated that, after they were done, the
victim attacked him again with the knife. The defendant stated that he then
stabbed the victim, that she stopped moving, and that he left her face
down on the bed. After a police officer noted that there was no mention of
strangulation, the defendant amended his statement to include the fact that
he had used his hands to get the victim to stop making noise.
Several factual discrepancies between this account and the physical evi-
dence discovered at the crime scene were noted at trial and, indeed, remain
contested in the present appeal. The extent to which the defendant’s memory
may have been impaired by drug use, both on the night of the victim’s death
and during his interrogation, also remains disputed.
6
General Statutes (Rev. to 2001) § 53a-54b (5) and (6) proscribe, respec-
tively, murder during the course of a kidnapping and murder during the
course of sexual assault in the first degree. Because the defendant was
charged with these capital offenses, the guilt and penalty phases of the trial
were bifurcated pursuant to General Statutes (Rev. to 2001) § 53a-46a, as
amended by Public Acts 2001, No. 01-151, §§ 1 and 2.
7
Although the defendant was originally sentenced to death on the capital
felony counts, he was subsequently resentenced to a term of life imprison-
ment without the possibility of release on those charges. See, e.g., State v.
Peeler, 321 Conn. 375, 377, 140 A.3d 811 (2016); State v. Santiago, 318 Conn.
1, 85–86, 122 A.3d 1 (2015).
8
A defendant’s right to counsel under the sixth amendment is made appli-
cable to the states through the due process clause of the fourteenth amend-
ment to the United States constitution. See, e.g., State v. Leconte, 320 Conn.
500, 505 n.2, 131 A.3d 1132 (2016).
9
The record indicates that Pladsen and the defendant occupied cells
close to one another and typically participated in recreation outside of the
presence of other inmates.
10
Although the state’s brief appears to contest whether Weaver made an
affirmative request, the trial court’s factual findings, Pladsen’s testimony,
and the state’s own arguments at trial indicate, at the very least, that the
topic of using a wire was broached by Weaver.
11
Pladsen testified that he had specifically asked Weaver about the possi-
bility of receiving a sentence modification. Weaver testified that Pladsen
did not expressly mention what kind of benefit he was seeking.
12
The record contains conflicting indications regarding the impact of
Weaver’s statement. For example, Pladsen testified that, during this meeting,
he had told Weaver that he ‘‘would try’’ to get more information from the
defendant and that Weaver had not dissuaded him from doing so. Pladsen
also testified that he continued his general ‘‘effort to obtain information
from [the defendant]’’ after the meeting with Weaver. On another occasion,
Pladsen testified: ‘‘I remember telling [Weaver that] I don’t mind going back
trying to get some more information in the meantime, and I remember him
saying, well just let me run it by the . . . state’s attorney first and let’s see
[how] this wire pans out, and he never got back to me.’’ Finally, Pladsen
testified that his decision to ask the defendant to write a note was a ‘‘spur
of the moment type of thing . . . .’’ In light of these discrepancies, we are
unable to agree with the assertion of the concurring and dissenting justice
that the record contains ‘‘[no] evidence that Pladsen ever informed Weaver
that he intended to obtain information from the defendant.’’ Pladsen’s testi-
mony on this point was simply inconsistent.
13
In light of the messages both into and out of Northern, we respectfully
disagree with the contention of the concurring and dissenting justice that
‘‘Weaver never communicated directly with Pladsen’’ in the months following
their meeting at Northern.
14
Pladsen also testified that the defendant became angry later that day
about the fact that the note had been given to the prosecution. Pladsen
testified that he had told the defendant that the note must have been discov-
ered in the trash and that the defendant had then asked him to claim
authorship.
15
The trial court file contains an incorrect notation by the clerk indicating
that the defendant’s motion to suppress Pladsen’s testimony was granted.
16
Pladsen also recounted the defendant’s reaction to the state’s discovery
of the note and the conversation that followed. See footnote 14 of this opin-
ion.
17
Following the defendant’s conviction, the trial court held an evidentiary
hearing pursuant to State v. Floyd, 253 Conn. 700, 732, 756 A.2d 799 (2000),
in order to explore whether the state had, yet failed to disclose, an agreement
with Pladsen at the time of trial, in violation of Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). During that hearing, the lead
prosecutor at the defendant’s trial, Senior Assistant State’s Attorney John
Fahey, testified that he had made no deals with Pladsen at the time of trial
and that they had not discussed the possibility of a sentence modification.
Fahey testified that he had promised Pladsen only that he would, ‘‘if ever
requested, as a commissioner of the Superior Court, make known to a judge
[the] good, bad and indifferent . . . .’’
Two other witnesses testified at that hearing about the interactions
between Fahey and Pladsen. The first of those witnesses, a corrections
officer who had been assaulted by Pladsen, Karen Stratton White, testified
that Fahey had visited her in 2015 to discuss modification of the twenty-
five year sentence that had resulted from that assault. White testified that,
during that discussion, she received the impression that Fahey wanted her
‘‘to go along with Pladsen having [a sentence modification] hearing’’ and
that Fahey had ‘‘given his word’’ because Pladsen ‘‘had helped him with that
other case.’’ The second witness, Pladsen’s mother, Judy Yvonne Pladsen,
testified that she had spoken with Fahey at the time of the defendant’s trial
and that he had ‘‘guaranteed’’ her that the court would modify her son’s
sentence in exchange for providing testimony against the defendant. In
rejecting the defendant’s Brady claim, however, the trial court expressly
declined to credit the testimony of these two witnesses, stating that ‘‘[n]either
was in a position to either confirm or deny the existence of any agreement.’’
18
Records of that proceeding are the proper subject of judicial notice.
See, e.g., Shirley P. v. Norman P., 329 Conn. 648, 660, 189 A.3d 89 (2018).
19
We note that this approach is consistent with the standard of review
applied to the agency prong of Massiah by the majority of the federal courts
of appeals. See, e.g., United States v. Ocean, 904 F.3d 25, 33 (1st Cir. 2018)
(‘‘We review the trial judge’s findings of fact for clear error . . . . We review
de novo [the] constitutional conclusion based on the facts as the trial judge
found them.’’ (Citation omitted.)), cert. denied sub nom. Mitchell v. United
States, U.S. , 139 S. Ct. 931, 202 L. Ed. 2d 656 (2019), and cert. denied,
U.S. , 139 S. Ct. 1362, 203 L. Ed. 2d 596 (2019); United States v.
Birbal, 113 F.3d 342, 345 (2d Cir.) (‘‘review[ing] the [D]istrict [C]ourt’s
conclusions as to constitutional violations de novo, and its findings of fact
for clear error’’), cert. denied, 522 U.S. 976, 118 S. Ct. 433, 139 L. Ed. 2d
333 (1997); United States v. O’Dell, Docket No. 95-1069, 1995 WL 765231,
*3 (7th Cir. December 27, 1995) (decision without published opinion, 73
F.3d 364 (7th Cir. 1995)) (‘‘we conclude as a matter of law that [the informant]
acted as a government agent when he spoke to [the defendant]’’); United
States v. Brink, 39 F.3d 419, 421 (3d Cir. 1994) (‘‘[w]e apply plenary review
to the [D]istrict [C]ourt’s application of legal precepts . . . and clearly erro-
neous review to its factual findings’’ (citation omitted)); United States v.
Johnson, 4 F.3d 904, 910 (10th Cir. 1993) (reviewing District Court’s conclu-
sion on agency ‘‘under the clearly erroneous standard with respect to the
underlying factual issues but de novo with respect to the ultimate constitu-
tional issue’’), cert. denied, 510 U.S. 1123, 114 S. Ct. 1082, 127 L. Ed. 2d 398(1994), and cert. denied sub nom. Carroll v. United States, 510 U.S. 1123, 114
S. Ct. 1081, 127 L. Ed. 2d 398 (1994), and cert. denied sub nom. Nottingham
v. United States, 510 U.S. 1123, 114 S. Ct. 1081, 127 L. Ed. 2d 398 (1994);
United States v. Surridge, 687 F.2d 250, 252 (8th Cir.) (‘‘Some courts have
called the determination of whether a person is a government informant or
agent a factual determination. . . . We agree that the determination as to
the relationship or understanding between the police and the informant is
a factual determination. However, beyond this factual determination there
is a legal question: whether the relationship or understanding as found by
the [D]istrict [C]ourt is such that the informant’s questioning has to be
considered government interrogation for constitutional examination.’’ (Cita-
tions omitted; footnote omitted.)), cert. denied, 459 U.S. 1044, 103 S. Ct.
465, 74 L. Ed. 2d 614 (1982). But see United States v. Li, 55 F.3d 325, 328
(7th Cir. 1995); United States v. Malik, 680 F.2d 1162, 1165 (7th Cir. 1982);
United States v. Van Scoy, 654 F.2d 257, 261 (3d Cir.), cert. denied, 454 U.S.
1126, 102 S. Ct. 977, 71 L. Ed. 2d 114 (1981).
The concurring and dissenting justice contends that this court’s observa-
tion in State v. Alexander, supra, 197 Conn. 185, that agency is ‘‘primarily
a question of fact’’ compels the application of the substantial evidence
standard of review to the trial court’s ultimate conclusion on the question of
agency. This court, however, also has characterized the deliberate elicitation
prong in a similar manner. See State v. Swinton, supra, 268 Conn. 856 (‘‘[t]he
second issue of fact is whether [the informant] ‘deliberately elicited’ the
defendant’s statements’’). Cases from the United States Supreme Court leave
little room for doubt that questions of law abound in that context. In United
States v. Henry, 447 U.S. 264, 268–69, 100 S. Ct. 2183, 65 L. Ed. 2d 115(1980), for example, the court did not even mention, much less afford
deference to, the trial court’s ultimate conclusion on the question of deliber-
ate elicitation.
20
The concurring and dissenting justice concludes that this precept is
irrelevant to the question of agency under Massiah because that precise
issue was not disputed in Moulton. See footnote 9 of the concurring and
dissenting opinion. We, however, agree with those federal courts of appeals
that read this language as a broader, guiding principle in this unique constitu-
tional context and, accordingly, decline to cabin its import to cases examin-
ing deliberate elicitation. See Ayers v. Hudson, 623 F.3d 301, 316 (6th Cir.
2010); United States v. Johnson, 4 F.3d 904, 912 (10th Cir. 1993), cert. denied,
510 U.S. 1123, 114 S. Ct. 1082, 127 L. Ed. 2d 398 (1994), and cert. denied
sub nom. Carroll v. United States, 510 U.S. 1123, 114 S. Ct. 1081, 127 L. Ed.
2d 398 (1994), and cert. denied sub nom. Nottingham v. United States, 510
U.S. 1123, 114 S. Ct. 1081, 127 L. Ed. 2d 398 (1994).
21
In reaching this conclusion, the United States Supreme Court rejected
an argument that the statements should be admissible because the police
were merely fulfilling their duty to continue an investigation. Massiah v.
United States, supra, 377 U.S. 206. Although the court recognized that such
continuing investigations may be proper, it nonetheless concluded that the
defendant’s own incriminating statements ‘‘could not constitutionally be
used by the prosecution as evidence against him at his trial.’’ (Emphasis
in original.) Id., 207.
22
Justice Blackmun authored a vigorous dissent asserting that the majority
effectively had ignored the fact that the informant had been explicitly
instructed not to ask any questions and that, by using phrases such as ‘‘ ‘must
have known’ ’’ and ‘‘ ‘likely,’ ’’ the majority had ‘‘fundamentally restruc-
ture[d]’’ Massiah to include even ‘‘ ‘negligent’ ’’ elicitation. United States v.
Henry, supra, 447 U.S. 278–80 (Blackmun, J., dissenting).
23
Indeed, the court asked, ‘‘what use is a defendant’s right to effective
counsel at every stage of a criminal case if, while he is held awaiting trial,
he can be questioned in the absence of counsel until he confesses?’’ (Internal
quotation marks omitted.) Maine v. Moulton, supra, 474 U.S. 171, quoting
Spano v. New York, 360 U.S. 315, 326, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959)
(Douglas, J., concurring).
24
We agree with the concurring and dissenting justice that the state’s
foreknowledge of deliberate elicitation is alone insufficient to give rise to
an agency relationship. Simply put, such a test could result in a constitutional
violation without any state action. See State v. Marshall, 882 N.W.2d 68, 91
(Iowa 2016), cert. denied, U.S. , 137 S. Ct. 829, 197 L. Ed. 2d 68(2017). We emphasize that some action by the state is always required in
this context; the question of whether such actions suffice to create an agency
relationship, in turn, must be determined by examining whether, in light of
the surrounding context, the state must have known that its own conduct
was likely to result in an infringement of the defendant’s sixth amendment
right to counsel. See Ayers v. Hudson, 623 F.3d 301, 311 (6th Cir. 2010)
(‘‘[i]t is not the government’s intent or overt acts that are important; rather,
it is the likely . . . result of the government’s acts’’ (internal quotation
marks omitted)). In cases in which the state chooses to act, its affirmative
obligation requires it to do so in a manner that ‘‘respect[s] and preserve[s]
the accused’s choice to seek [the] assistance [of counsel].’’ Maine v. Moulton,
supra, 474 U.S. 171.
25
The concurring and dissenting justice’s reliance on Cox to support the
proposition that Henry is irrelevant to the question of agency is, therefore,
inapt. It is also worth noting that, although the concurring and dissenting
justice is correct that a case from the United States Court of Appeals for
the Fifth Circuit has declined to adopt language from Henry as governing
the question of agency, the precise passage that court declined to engraft
looks very similar to the test proposed by the concurring and dissenting
justice. See Creel v. Johnson, 162 F.3d 385, 393 (5th Cir.1998) (‘‘[C]iting
to [Henry], [the defendant] argues that we should consider whether [the
informant] ‘was charged with the task of obtaining information from an
accused.’ Henry involved . . . a clear case of agency, and the [c]ourt only
considered if the agent [was] ‘charged with the task of obtaining information
from an accused’ to determine whether the agent ‘deliberately elicited’ the
information. [The defendant’s argument fails because] the agency inquiry
is precedent to and distinct from determining whether an agent ‘deliberately
elicits’ information.’’).
26
In State v. Swinton, supra, 268 Conn. 855, we cited a previous decision
of this court, State v. Alexander, supra, 197 Conn. 185, for the applicable
legal standard governing the question of agency. In Alexander, this court
concluded that there was substantial evidence to support the trial court’s
factual finding that an agency relationship was absent when the police drove
a private citizen who lacked a driver’s license to meet with the defendant
in jail on two occasions. Id., 186–87. Although our decision in that case
noted some level of facilitation and encouragement by the police; id.; the
informant in that case was not incarcerated, and there was no evidence
that he actually received anything in exchange for his cooperation. Id., 187
and n.4. Finally, we note that our decision in Alexander predated the United
States Supreme Court’s pronouncement that, under Massiah, the ‘‘police
have an affirmative obligation not to act in a manner that circumvents and
thereby dilutes the protection afforded by the right to counsel.’’ Maine v.
Moulton, supra, 474 U.S. 171. In light of these distinctions, our decision in
Alexander is of limited utility in the present case.
A Superior Court case, State v. Howell, Superior Court, judicial district
of New Britain, Docket No. CR-05-222048-S (January 30, 2007) (Sheldon,
J.), contains a more instructive set of facts. In that case, the defendant was
arrested, charged with murder, and held in lieu of bond. Id. The informant
in that case, a fellow inmate, began interacting with the defendant in the
prison recreation area. Id. During a series of conversations there, the defen-
dant remarked that his charges related to the disappearance of a prostitute
and made certain incriminating statements. Id. The informant subsequently
called the police to discuss the defendant, and a detective asked, in particu-
lar, if the defendant had said anything about the body. Id. The informant
responded that, although the defendant had not said anything yet, the conver-
sations would likely ‘‘ ‘lead up to that.’ ’’ Id. The detective affirmatively
instructed the informant not to press the defendant for information but
also implied that the informant should continue listening, stating: ‘‘[I]f [the
defendant’s] offering shit you know just.’’ Id. The informant then returned
to the recreation area and elicited further incriminating statements from
the defendant. Id.The detective spoke to the informant again the following day. ‘‘This conver-
sation began with a lengthy lecture by the [d]etective to [the informant]
about the legal consequences of his continuing cooperation with the investi-
gation in light of the fact that the defendant was formally charged with
murder and had an attorney appointed to represent him. According to the
[d]etective, [the informant] had become an agent of the [s]tate with respect
to the police investigation of [the] death and disappearance [of the victim]
when they first spoke on the telephone the day before. Thus, the [d]etective
told him, he could not ask the defendant any questions on the subject of
[the victim] . . . and he could not agree with the defendant, or even nod
his head, if the defendant ever spoke about her.’’ (Citation omitted.) Id. At
trial, the state sought to admit the incriminating statements made by the
defendant both before and after the informant’s first contact with the
police. Id.The trial court in that case concluded that, notwithstanding certain evi-
dence indicating that the informant had provided information to the police
regarding certain other cases, there was no evidence of an agency relation-
ship before the first telephone call. Id. The trial court also found, however,
that an agency relationship had been established when, ‘‘upon completing
his short phone call . . . [with] the [d]etective . . . and learning that the
[d]etective was very interested in what the defendant might ultimately tell
him, [the informant] returned to the recreation area to hear whatever else
the defendant was ready to say.’’ Id. The trial court opined that the detective’s
admonition not to ‘‘ ‘press’ ’’ the defendant was ‘‘a far cry from the express
and appropriate warnings’’ given the following day and that the informant’s
actions after the first telephone call amounted to deliberate elicitation. Id.Accordingly, the trial court in that case suppressed the evidence regarding
the statements made by the defendant after the informant’s first contact
with the police. Id.27
Because this issue relates to a question arising under the federal constitu-
tion, case law from the Second Circuit is entitled to significant weight. See,
e.g., Gleason v. Smolinski, 319 Conn. 394, 444 n.41, 125 A.3d 920 (2015).
28
Although this approach has been described as a bright-line rule requiring
government instruction as a predicate to relief under Massiah; see D. Kirsch,
Note, ‘‘The Prosecutor Circumvents the Sixth Amendment Right to Counsel
with a Simple ‘Wink and Nod,’ ’’ 69 Mo. L. Rev. 553, 560–61 (2004); its origins
may be traced back to cases weighing various factors. See, e.g., United
States v. Birbal, 113 F.3d 342, 346 (2d Cir.), cert. denied, 522 U.S. 976, 118
S. Ct. 433, 139 L. Ed. 2d 333 (1997); Stano v. Butterworth, 51 F.3d 942, 977
(11th Cir. 1995), cert. denied sub nom. Stano v. Singletary, 516 U.S. 1122,
116 S. Ct. 932, 133 L. Ed. 2d 859 (1996); Brooks v. Kincheloe, 848 F.2d 940,
944–45 (9th Cir. 1988).
29
For largely pragmatic reasons, courts have often hesitated to articulate
an exhaustive list of factors in this context. See, e.g., People v. Cardona,
41 N.Y.2d 333, 335, 360 N.E.2d 1306, 392 N.Y.S.2d 606 (1977) (‘‘we decline
to subscribe to any ironclad rules as to when agency exists since the niceties
of rule-complying form could easily mask the substance of a true agency
relationship’’).
30
The concurring and dissenting justice contests this reading. See footnote
22 of the concurring and dissenting opinion. This letter, which was marked
as an exhibit for identification purposes, provides in relevant part: ‘‘I have
some information that could be very useful to you and one of your cases.
. . . I know all about Nashon and Valentino and so on. . . . You want my
help, come [and] see me [and] we’ll talk. . . .’’ Nashon and Valentino are
individuals related to a different criminal case then pending against the
defendant. Indeed, as the trial court in the present case itself noted, ‘‘the
initial letter was not about [the victim]; [Pladsen] wanted to give information
about [the defendant’s] other crimes.’’
31
Although it is not entirely clear from the record whether Pladsen
expressly indicated that he would be continuing his efforts to obtain informa-
tion from the defendant; see footnote 12 of this opinion; that fact would
have become apparent to the state no later than May 29, 2007, the day
the note was given to Weaver. Pladsen’s testimony at trial indicates that,
notwithstanding this fact, the defendant was returned to Northern later that
same day where he made additional incriminating statements to Pladsen.
Specifically, Pladsen testified at trial that the defendant was upset that the
state had found the note and had asked him to claim authorship. See foot-
notes 14 and 16 of this opinion.
32
We note that the record contains some evidence indicating that the
state had expressly agreed to permit a sentence modification shortly before
Pladsen testified in the present case. See footnote 17 of this opinion. The
trial court, however, declined to find that evidence to be credible in ruling
on a related postjudgment claim.
33
The concurring and dissenting justice concludes that the defendant’s
incarceration ‘‘is simply not relevant to the question of whether Pladsen
was an agent of the state.’’ We recognize that a circuit split exists on this
particular point of law and that, as a result, the position of the concurring
and dissenting justice is supported by relevant case law. Compare Matteo
v. Superintendent, SCI Albion, supra, 171 F.3d 895 (concluding that, ‘‘[c]er-
tainly, the ‘special pressures’ of custody were present’’), with United States
v. Watson, 894 F.2d 1345, 1347 (D.C. Cir. 1990) (‘‘it is of no moment that
the incriminating conversations took place while the accused was incarcer-
ated’’). Nonetheless, we disagree. The circumstances attendant to the defen-
dant’s incarceration, such as the undisputed fact that he recreated alone
with Pladsen, must be considered when evaluating the ‘‘likely . . . result
of the government’s acts.’’ (Internal quotation marks omitted.) Ayers v.
Hudson, supra, 623 F.3d 311. As a result, we find the reasoning of the United
States Court of Appeals for the Third Circuit in Matteo, on balance, more
persuasive.
34
Even if Pladsen’s initial private meeting with Weaver did not result in
agency, surely, such a relationship would have been established after Pladsen
offered, and the state affirmatively accepted, evidence specifically relating
to the defendant’s involvement in the victim’s death. It is undisputed, how-
ever, that Pladsen was returned to Northern after producing the note, had
another conversation with the defendant about the present case, and was
subsequently called by the state to testify as to that conversation. See
footnotes 14, 16 and 31 of this opinion. Because the state has conceded
both deliberate elicitation and harmless error in the present appeal, this
fact alone would have been sufficient to warrant reversal of the defendant’s
conviction.
35
Although the presence of such prophylactic steps does not necessarily
preclude sixth amendment infirmity; Maine v. Moulton, supra, 474 U.S. 165;
United States v. Henry, supra, 447 U.S. 266–67; the state’s failure to employ
these measures in the present case undoubtedly increased the likelihood
of infringement of the defendant’s constitutional rights.
36
To conclude otherwise would allow jailhouse informants to exclude
themselves from consideration as a state actor simply by pretending to be
a double agent. The fact that a defendant who falls victim to such a ruse
may himself be seeking to gain some measure of unfair advantage is irrele-
vant. The state’s affirmative obligation to avoid infringement of the right to
counsel precludes such gamesmanship. See Maine v. Moulton, supra, 474
U.S. 171.
37
We address this claim because it seeks relief in the form of a judgment
of acquittal. See, e.g., State v. Padua, 273 Conn. 138, 178–79, 869 A.2d
192 (2005).
38
Although the operative information charged the defendant with both
unlawfully entering and remaining, the state’s evidence and arguments per-
tain solely to the latter. See State v. Belton, 190 Conn. 496, 500, 461 A.2d 973(1983) (‘‘[t]o enter unlawfully contemplates an entry [that] is accomplished
unlawfully, [whereas] to remain unlawfully contemplates an initial legal
entry [that] becomes unlawful at the time that the actor’s right, privilege or
license to remain is extinguished’’). Indeed, the state’s brief notes that, at
trial, it proceeded under the theory ‘‘that, because the victim was acquainted
with the defendant and because there were no signs of forced entry, [the
victim] likely willingly permitted [the defendant] to enter her apartment.’’
39
The trial court gave the following instructions to the jury with respect
to this element: ‘‘[T]he state must prove beyond a reasonable doubt that the
defendant entered unlawfully or, regardless of how the defendant entered,
he remained there unlawfully. A person enters or remains unlawfully in or
upon premises when the premises, at the time of such entry or remaining,
are not open to the public and when the defendant is not otherwise licensed
or privileged to do so. It does not matter how an intruder may actually have
entered; if he did so without license, he has entered unlawfully. Even if a
person entered a building lawfully, that is, he had the right or had been
given permission and the right had been terminated or the permission with-
drawn by someone who had a right to terminate or withdraw it, you may
find unlawfully remaining as the basis of burglary.’’
40
In Thomas, the state argued that the jury could have inferred an unlawful
remaining from the fact that the defendant had ‘‘manifested an intent to
carry out a criminal purpose’’ while inside of the convenience store. State
v. Thomas, supra, 210 Conn. 207. In rejecting that argument, this court relied
on a comment by the Commission to Revise the Criminal Statutes, which
provides in relevant part: ‘‘ ‘The purpose of this definition is to make clear
that only the kind of entry or remaining which is likely to terrorize occupants
is prohibited by the crime of burglary. Thus, when the building is, at the
time, open to the public, or the actor is otherwise licensed or privileged to
be there, the element of terror is missing and the requirement is not met.’ ’’
(Emphasis added.) Id., quoting Commission to Revise the Criminal Statutes,
Penal Code Comments, Connecticut General Statutes (1969) pp. 52–53,
reprinted in Conn. Gen. Stat. Ann. § 53a-100 (West 2012), commission com-
ment, p. 16.
41
The paradigm of such an unlawful remaining occurs when a defendant
enters a business when it is open to the public and then stays past closing.
See State v. Allen, supra, 216 Conn. 384 (‘‘A enters an office building during
business hours—a lawful entry since the building is open to the public—
and remains, perhaps hidden, after the building is closed, with intent to
steal. A is guilty of burglary.’’ (Internal quotation marks omitted.)).
42
The defendant relies on State v. Clark, 48 Conn. App. 812, 713 A.2d 834,
cert. denied, 245 Conn. 921, 717 A.2d 238 (1998), as an example of the
absurd results that would occur in the absence of a bright-line rule requiring
surreptitious conduct. In that case, the victim was sexually assaulted in her
own kitchen by an uninvited assailant. Id., 814, 824. The defendant argues
that, ‘‘[i]f the conduct [at issue in Clark] had occurred outdoors, [the defen-
dant in that case] would not have been guilty of the class B felony of burglary,
but only of the class D felony of third degree sexual assault. Clearly the
legislature did not intend for there to be such a disparity in the sentence a
person could receive simply because the crime was committed indoors as
opposed to outdoors.’’
It is, however, well established that such intrusions into the home cause
a unique form of injury that has traditionally been punished as a separate
and distinct offense under the law of this state. See, e.g., State v. Little, 194
Conn. 665, 675–76, 485 A.2d 913 (1984). In the absence of constitutional
infirmity, concerns regarding the penalty affixed by statute to the crime of
burglary are appropriately addressed to the legislature. See, e.g., Washington
v. Commissioner of Correction, 287 Conn. 792, 828, 950 A.2d 1220 (2008)
(acknowledging ‘‘the legislature’s authority to define crimes and [set] appro-
priate penalties’’).
43
We note that the state also contends that any error in this regard was
harmless and that the parties disagree on the burden of proof attendant to
such an analysis. See State v. Arroyo, 284 Conn. 597, 614, 935 A.2d 975(2007) (declining to consider whether constitutional or nonconstitutional
standard of harmless error review applies to improper omission of third-
party culpability instruction). Because we address this claim as an issue
likely to arise on remand, we need not address questions of harmless error
in the present appeal.
44
Although testimony offered at trial indicated that the victim had unpro-
tected vaginal intercourse with a particular man the night before her death,
no evidence was introduced to demonstrate that that man was the source
of the unknown male DNA on victim’s vaginal swab.
45
Ladd indicated that this saliva came from a different source than other
male DNA found on a condom from the victim’s bedroom. In light of certain
posttrial evidence linking the condom to another man; see footnote 44 of
this opinion; it is reasonable to deduce that neither that man nor the defen-
dant was the source of the male DNA discovered on the victim’s shoulder.
We note that, although both the state and the defendant make the same
inference in briefing various issues in the present appeal, this information
was not available to the trial court when it instructed the jury.
46
With respect to this sample, Ladd testified that the victim was a major
contributor and that the unidentified male was a minor contributor.
47
We note that the current revision of the model criminal jury instructions
contains similar language. See Connecticut Criminal Jury Instructions 2.6-
10, available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited
August 5, 2020).
48
In reaching this conclusion, this court noted: ‘‘The restrictions placed
on [third-party] culpability evidence are concerned primarily with reliability
and, in essence, seek to ensure that a defendant does not introduce tenuous
evidence of [third-party] culpability in an attempt to divert from himself the
evidence of guilt. . . . Those same concerns do not exist . . . where the
evidence the defendant [seeks] to introduce [is] reliable, physical evidence
that had undergone the rigors of forensic analysis.’’ (Citations omitted.)
State v. Cerreta, supra, 260 Conn. 262, citing State v. Hernandez, 224 Conn.
196, 202, 618 A.2d 494 (1992) (evidence of threat by third party), and State
v. Echols, 203 Conn. 385, 392–94, 524 A.2d 1143 (1987) (evidence that third-
party lookalike committed similar crime in same vicinity).
49
This evidence stood in contrast to an unidentified print lifted from a
gasoline filled soda bottle that had been used in the commission of the
underlying crime that, we noted, had been properly admitted during the
course of the underlying trial. State v. West, supra, 274 Conn. 616, 627 n.29.
50
We note that the trial court ‘‘is in the best position to view the evidence
in the context of the entire case and has wide discretion in making its
evidentiary rulings.’’ State v. Schovanec, supra, 326 Conn. 320; see also State
v. Walsh, 67 Conn. App. 776, 790, 789 A.2d 1031, cert. denied, 260 Conn.
906, 795 A.2d 546 (2002). Like the decision of whether to give a third-party
culpability instruction, a trial court’s decision as to the admissibility of
‘‘[third-party] inculpatory evidence will be reversed on appeal only if the
court has abused its discretion or an injustice appears to have been done.’’
(Internal quotation marks omitted.) State v. West, supra, 274 Conn. 626.
51
For example, a trial court that exercises its discretion to admit forensic
evidence demonstrating the presence of a third party at a crime scene
nonetheless may act within its discretion by declining to give a third-party
culpability instruction in the event the evidence actually admitted at trial
falls short of proving a direct connection. Put differently, the fact that the
trial court’s predicate evidentiary rulings may have benefited the defendant
does not compel the conclusion that its ultimate decision to withhold an
instruction was error. Cf. State v. Schovanec, supra, 326 Conn. 316–17, 323.
52
We emphasize that the question of whether the evidence actually admit-
ted in any new trial will reasonably support a third-party culpability instruc-
tion must be vested, in the first instance, to the sound discretion of the trial
court. See, e.g., State v. Jackson, supra, 304 Conn. 424.