State v. Prudhomme ( 2022 )

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STATE OF CONNECTICUT v. KRISTOPHER
JOSEPH PRUDHOMME
(AC 43302)
Moll, Clark and Sheldon, Js.
Syllabus
Convicted of the crimes of assault in the first degree, cruelty to persons
and tampering with physical evidence, the defendant appealed to this
court. He claimed that the trial court’s jury instructions deprived him
of his right to due process and a fair trial because they could have
misled the jurors into thinking they could not consider inadequacies in
the police investigation in evaluating whether the state had proved him
guilty beyond a reasonable doubt. The complainant, L, and the defendant
shared an apartment. After they returned to the apartment with M, the
defendant’s girlfriend, in the early morning hours after visiting a club,
L told the defendant that he had twice slept with M. In the early evening
of that same day, the defendant found L passed out in his room, covered
in vomit and urine, with a red ring around his neck. The defendant told
the 911 dispatcher that L had attempted suicide. The police found L on
the floor of his bedroom. Although the police searched the apartment
for anything that could have caused the red marks on L’s neck, they
did not enter or search the defendant’s separate bedroom. One of the
police officers who searched the apartment, relying in part on the defen-
dant’s statements, believed that L had attempted suicide and sought to
have him seen by a psychologist after L was taken to a hospital. After
L’s mother reported to the police that, when L had awoken from a coma
he was in at the hospital, he told her that the defendant had attempted
to strangle him, the police interviewed the defendant, who changed his
story and told them for the first time both that he had a form of autism
and that L had told him about having had sex with M. The defendant’s
theory of defense was that the police conducted an inadequate investiga-
tion in that, inter alia, they failed to sufficiently document the injuries
to L’s neck, they failed to interview L or his mother about the allegation
that the defendant strangled him, they failed to analyze certain eviden-
tiary inconsistencies, and they never considered that the defendant’s
autism could explain his behavior or inconsistent statements to paramed-
ics and the police when they responded to his 911 call. The defendant
filed a request to charge the jury in which he sought, in part, to have
the jury instructed to consider the completeness or incompleteness of
the police investigation and whether evidence concerning the adequacy
of the investigation affected the reliability of the evidence and the credi-
bility of witnesses. After conducting a charging conference with counsel,
the court declined to instruct the jury in accordance with that portion
of the defendant’s request and instead instructed the jury in accordance
with the model investigative inadequacy instruction on the Judicial
Branch website at that time. Held:
1. The trial court’s jury instruction on the adequacy of the police investigation
was erroneous, as there was a reasonable possibility that it misled the
jury and, thus, prejudiced the defendant:
a. The trial court failed to inform the jury of the defendant’s right to
have it consider the inadequacy of the police investigation in evaluating
whether the state had proved him guilty beyond a reasonable doubt:
because the court noted during the charge conference that there was a
factual dispute as to the adequacy of the investigation, the defendant was
entitled to have the jury consider evidence of any relevant deficiencies
or lapses in the investigation as bases for entertaining reasonable doubt
as to his guilt; moreover, had language been added to the court’s charge
of the sort the defendant requested, the jury would have been apprised
of his right to present an investigative inadequacy defense and the jury’s
right to consider it in evaluating the strength of the state’s case.
b. Because the trial court’s instructional error prejudiced the defendant
and was not harmless beyond a reasonable doubt, he was entitled to a new
trial, there having been a reasonable possibility that the error affected
the verdict: the jury may have ignored key evidence as to the adequacy
of the police investigation, as there was a significant risk that it was
misled to believe that it could not consider the defendant’s arguments
as to the investigation, and it was apparent that the instructional error
was harmful given the relative weakness of the state’s case, which turned
almost entirely on the believability of L’s allegation that the defendant
strangled him, even though L did not see the defendant attempt to do
so; moreover, defense counsel adduced evidence that tended to under-
mine L’s credibility, elicited testimony that there were alternative expla-
nations for L’s neck injuries and argued that any inconsistencies in the
defendant’s statements or mannerisms could be explained by his autism;
furthermore, the state did not prove beyond a reasonable doubt that a
properly instructed jury would not have entertained a reasonable doubt
as to the defendant’s guilt and, thus, find him not guilty on the basis of
the alleged deficiencies in the police investigation.
2. The trial court improperly admitted into evidence a police disciplinary
report in violation of the defendant’s state and federal constitutional
rights to confront witnesses against him: contrary to the court’s determi-
nation that the state offered the report to show that the police depart-
ment had taken action with regard to the performance of an officer
during the investigation, the report was introduced to prove the truth
of its contents, which were that the officer’s investigation and conclusion
that L had attempted suicide were inadequate and unsatisfactory; more-
over, the report was inadmissible under the business records exception
(§ 52-180) to the rule against hearsay, as the state failed to establish
that it was made in the regular course of business, and, because the
report was made three months after the actions it described, it did not
have the indicia of trustworthiness required to fall within the business
records exception; furthermore, the report was testimonial in nature,
the statements in it having been made under circumstances that would
lead an objective witness reasonably to believe that the report would
be available for use at a later trial, and the state did not introduce
evidence that the officer who prepared the report was unavailable to
testify at trial or that the defendant had a prior opportunity to cross-
examine him.
Argued October 13, 2021—officially released January 25, 2022
Procedural History
Substitute information charging the defendant with
two counts of the crime of assault in the first degree,
and with one count each of the crimes of assault in the
second degree, strangulation in the first degree, cruelty
to persons and tampering with physical evidence,
brought to the Superior Court in the judicial district of
New London and tried to the jury before Jongbloed, J.;
thereafter, the court denied the defendant’s motions to
preclude certain evidence and to strike certain testi-
mony; verdict of guilty of one count of assault in the
first degree, and of cruelty to persons and tampering
with physical evidence; subsequently, the court dis-
missed the charge of assault in the second degree,
denied the defendant’s motion for a new trial and ren-
dered judgment in accordance with the verdict, from
which the defendant appealed to this court. Reversed;
new trial.
Andrew P. O’Shea, assigned counsel, for the appellant
(defendant).
Laurie N. Feldman, deputy assistant state’s attorney,
with whom, on the brief, were Michael L. Regan, state’s
attorney, and Stephen M. Carney, senior assistant
state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Kristopher Joseph
Prudhomme, appeals from the judgment of conviction,
rendered after a jury trial, of charges of assault in the
first degree in violation of General Statutes § 53a-59 (a)
(3), cruelty to persons in violation of General Statutes
§ 53-20 (a) (1), and tampering with evidence in violation
of General Statutes § 53a-155. On appeal, the defendant
claims that the trial court improperly (1) failed to
instruct the jury that it properly could consider evidence
of inadequacies in the police investigation that led to
his arrest and prosecution as a basis for discrediting
the state’s evidence against him and entertaining rea-
sonable doubt as to his guilt, (2) admitted into evidence,
over his objection, a police disciplinary report con-
taining hearsay statements from nontestifying police
officers that tended to undermine his theory of defense,
and (3) denied his motion for a new trial pursuant to
his claim that the jury’s verdict was against the manifest
weight of the evidence.1 We agree with the defendant’s
first claim of error, and accordingly, on that basis,
reverse the judgment of conviction of all charges and
remand this case for a new trial thereon. We also agree
with the defendant’s second claim of error, which we
have reviewed because it is likely to arise again at retrial.
We do not reach the defendant’s third claim of error
because it is unnecessary for the ultimate disposition
of this appeal.
The jury was presented with the following evidence
on which to base its verdict. In the autumn of 2016, the
complainant, Michael Lovering, moved from Louisiana
to Connecticut. On October 1 of that year, on the invita-
tion of the defendant, Lovering became the defendant’s
roommate in an apartment in Norwich. Having first met
the defendant, a fellow participant in the Goth culture,
when they worked together as disc jockeys, Lovering
had known the defendant for eight years by the time
they became roommates in the Norwich apartment.
On the night of October 21, 2016, the defendant, Lov-
ering, and the defendant’s girlfriend, Lauren Muskus,
went to see a band play at a club in New Haven. Lovering
consumed alcohol while at the club, then got into an
altercation with the mother of an underage girl. Follow-
ing the altercation, Lovering left the club, intending to
walk home. Shortly thereafter, however, he was picked
up by the defendant and Muskus, who drove him back
to Norwich.
Upon arriving back at the apartment, sometime after
2:30 a.m. on October 22, 2016, Lovering saw his neigh-
bors, Chandler Gottshall and her boyfriend, outside the
apartment and invited them inside. The group initially
talked and drank alcohol for a while in the kitchen of
the apartment. During that time, Gottshall noticed that
Lovering appeared to be intoxicated, as he was slurring
his speech, stumbling when he walked, and, at one
point, fell over and struck the stove. Later, according
to Gottshall, the mood of the gathering changed after
Lovering and the defendant went into the defendant’s
room and had a short conversation in which Lovering
told the defendant that he had slept with Muskus on
two separate occasions. Gottshall testified that, when
Lovering returned to the kitchen after having that con-
versation, he pulled her and her boyfriend outside. Lov-
ering told them what he had told the defendant about
sleeping with Muskus, then told them that they should
leave, which they promptly did. Gottshall testified that,
after Lovering spoke with the defendant, Lovering ‘‘was
very upset about it, just talking about it . . . .’’
Later in the day on October 22, at approximately 5:30
p.m., the defendant called 911 and requested that an
ambulance be sent to his residence. The defendant told
the police dispatcher during the call that he had just
found Lovering in his room, passed out and covered in
vomit and urine. During the call, the defendant further
stated that Lovering was barely conscious, completely
incoherent, and continuing to vomit. The defendant also
informed the dispatcher that Lovering had ‘‘a red ring
around his neck.’’ He concluded the call by telling the
dispatcher, ‘‘[I]t’s a suicide attempt.’’
Officer Jared Homand of the Norwich Police Depart-
ment was dispatched to the defendant’s residence in
response to the 911 call. When Homand arrived, he was
met by the defendant at the front door. The defendant
told the officer that he had found Lovering in his room,
incapacitated, after hearing him groaning and going in
to check on him. Homand then entered the residence,
accompanied by the defendant, and found Lovering
lying on the floor of his bedroom with his legs tucked
up under his body as if he had knelt down on the floor
and lain over backward.
Homand initially attempted to speak with Lovering,
but Lovering only groaned in response and gestured
toward his legs. The officer assisted Lovering by straight-
ening out his legs from under his body so that Lovering
was lying flat on his back. The officer then noticed ‘‘a
ligature mark or a red circular mark around the front
of his neck.’’ Homand testified that he ‘‘didn’t see if it
went all the way around because he was on his back,
but it went at least the three-quarters that were visible
around his neck.’’ The officer also observed a dried
substance on Lovering’s lips and chest, which he
believed to be either blood or vomit.
Other emergency personnel arrived at the scene
shortly thereafter, including Officer Anthony Marceau
and a team of paramedics. Paramedic Mackenzie
Kelsey, who first attended to Lovering, found him to be
conscious but unable to communicate with her. Kelsey
observed that Lovering was very pale—an indication
of severe oxygen deprivation. She also observed that
Lovering had dried blood and vomit on his chest and
‘‘bruising and marks around his neck.’’ According to
Kelsey’s testimony, the marks on Lovering’s neck ‘‘were
very red’’ and ‘‘were very thin’’ and appeared to her ‘‘to
be something that had recently happened’’ given their
color. Kelsey explained that there were ‘‘multiple marks
across his neck and they went straight across his neck.’’
However, according to paramedic Ashleigh Ridenour’s
testimony, ‘‘[t]here were multiple marks in different
stages, so some were older and some were fresh.’’ Ride-
nour explained that the marks ‘‘were different colors.
There were some that were red and there were some
that were more purple in color.’’ On the basis of these
observations, Ridenour believed that some of the marks
were fresh but others were old. The paramedics deter-
mined that Lovering’s blood oxygen was extremely low,
his heartbeat was very fast, and his levels of potassium
were high. The paramedics provided oxygen to Lov-
ering, put him on a stretcher, and transported him to
William W. Backus Hospital in Norwich in an ambu-
lance.
During trial, Kelsey testified that the defendant was
acting in an unusual manner when she and the other
paramedics arrived at the apartment. Kelsey explained
that the defendant ‘‘didn’t seem to want to make eye
contact with us. He didn’t seem to want to really speak
with us in detail. When we were taking [Lovering] out
of the room, placing him on the stretcher, I did note
that he seemed to be blocking another door or walkway
into another part of the apartment and wouldn’t let
anybody through into that area. And then, in the midst
of information being communicated to me through
[Ridenour], the story in which what had happened to
[Lovering] changed multiple times. There was two or
three iterations of what had actually happened.’’ On
cross-examination, Kelsey conceded that had she
known the defendant was autistic, she potentially
would have changed her perception of his behavior.2
Meanwhile, Homand and Marceau looked around the
apartment to determine if there was anything there that
could have caused the red marks on Lovering’s neck,
such as a rope, a belt, or a similar item. Although the
officers searched for this purpose throughout the com-
mon areas of the apartment and in Lovering’s bedroom,
they found nothing that, in their opinion, could have
caused the marks. The officers, however, never searched,
or even entered, the defendant’s separate bedroom on
that day.
At Backus Hospital, Lovering was placed in the care
of Melissa Lin Monte, an emergency department physi-
cian. Lin Monte found Lovering’s lower legs to be very
swollen and his calves to be extremely firm, which she
found to be consistent with a lack of blood flow to his
lower legs. She also found that Lovering’s potassium
levels were dangerously high—higher than she had ever
seen before—which she understood to be an indicator
of muscle breakdown of the sort that can be caused
when a person remains immobile for a prolonged period
of time.
Because of the severity of Lovering’s condition, he
was put in a medically induced coma and then trans-
ferred to the intensive care unit. After Lovering was
transferred, however, the condition of his legs worsened.
On the basis of the seriousness of the condition of his
legs, Lovering was ultimately transferred by helicopter
to Hartford Hospital.
At Hartford Hospital, Parth Shah, a vascular surgeon,
examined Lovering’s legs and determined that they
needed to be amputated below the knee because of the
breakdown of his leg muscles. After Lovering’s lower
legs were amputated, he remained in a coma until the
evening of October 27.
Marceau, who had followed the ambulance to Backus
Hospital, filled out an emergency evaluation request
form to ensure that Lovering would be seen by a psy-
chologist within forty-eight hours of his admission to
the hospital. Marceau testified that he had filled out the
form because he believed that the cause of Lovering’s
injuries was an attempted suicide. Marceau based this
belief on the defendant’s statements to the police, on
Lovering’s alleged past attempts at suicide, and on Lov-
ering’s dire physical condition at the time he was found.
Later, however, on November 2, six days after Lov-
ering emerged from the coma, he told his mother that
the defendant had strangled him. Lovering’s mother
immediately called the police to report her son’s allega-
tions. On the basis of Lovering’s allegation that the
defendant had strangled him, the police went to the
defendant’s apartment on November 2 to interview him.
After questioning the defendant in his apartment, Detec-
tive Kyle Besse asked the defendant to come with him
to the police station to answer more questions, and the
defendant agreed. At the police station, the defendant
was placed in an interview room and the interview was
recorded. The defendant also gave Besse access to his
cell phone. Besse then asked the defendant to repeat
his story from the beginning. Besse testified that the
defendant’s story changed slightly during this second
round of questioning. Specifically, at the police station,
the defendant mentioned for the first time that Lovering
had told him that he had had sex with Muskus. Besse
thought it suspicious that, even though the defendant
had said that he ‘‘wanted to hit [Lovering]’’ when he
learned of Lovering’s sexual activities with Muskus, he
admittedly ‘‘was trying to think up ahead how this would
look [if he did so]. . . . Like, in retrospect now, like,
even in the hospital—‘cause, like, his mom asked, well,
how did he get a black eye; a nurse would have asked
me, well, how did he get a black eye; a[nd] police would
have asked, how’d he get a black eye. I would have had
to say, well, I hit him.’’ Besse responded by telling the
defendant that he was ‘‘still getting the sense that there’s
something. Every time I ask you that—you know, what
else happened, what else happened—you give me a sign
that you’re not comfortable enough to be completely
honest.’’ The defendant then told the detective that,
‘‘[m]entally, the only thing with me is, I have Asperger’s
syndrome, which is like a form of autism.’’
The defendant was subsequently arrested and charged
with assault in the first degree in violation of § 53a-59
(a) (1), assault in the first degree in violation of § 53a-
59 (a) (3), strangulation in the first degree in violat-
ion of General Statutes § 53a-64aa (a) (1) (B), cruelty
to persons in violation of § 53-20, and tampering with
physical evidence in violation of § 53a-155 (a) (1).
After a jury trial, the defendant was found guilty of
assault in the first degree in violation of § 53a-59 (a) (3),
cruelty to persons in violation of § 53-20, and tampering
with physical evidence in violation of § 53a-155 (a) (1).
The jury found the defendant not guilty of assault in the
first degree under § 53a-59 (a) (1) and strangulation in
the first degree under § 53a-64aa (a) (1) (B).3 Before he
was sentenced, the defendant filed a timely motion for
a new trial on the ground that the jury’s guilty verdict
was against the weight of the evidence. The court denied
that motion prior to the defendant’s sentencing. There-
after, the court sentenced the defendant to a total effec-
tive term of twenty years of incarceration, execution
suspended after ten years, and five years of probation.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
The defendant first claims that the trial court violated
his constitutional right to due process and a fair trial by
failing to instruct the jury on the manner in which it
could use evidence of the allegedly incomplete and
biased police investigation in determining whether he
was guilty of the charged offenses. The defendant argues
that the jury charge as given prejudiced him because it
could have ‘‘misled [the jury] into thinking it could not
conclude that the investigation’s inadequacies, which
were the heart of the defense, could be a reasonable
basis to find a lower probative value in the evidence the
investigation produced, resulting in reasonable doubt.’’
We agree.
The following well established legal principles guide
our analysis of the defendant’s first claim of error. ‘‘[A]
fundamental element of due process of law is the right
of a defendant charged with a crime to establish a
defense. . . . Where . . . the challenged jury instruc-
tions involve a constitutional right, the applicable stan-
dard of review is whether there is a reasonable possibility
that the jury was misled in reaching its verdict. . . . In
evaluating the particular charges at issue, we must
adhere to the well settled rule that a charge to the jury
is to be considered in its entirety, read as a whole, and
judged by its total effect rather than by its individual
component parts. . . . [T]he test of a court’s charge is
. . . whether it fairly presents the case to the jury in
such a way that injustice is not done to either party
under the established rules of law.’’ (Internal quotation
marks omitted.) State v. Collins, 299 Conn. 567, 598–99,
10 A.3d 1005, cert. denied, 565 U.S. 908, 132 S. Ct. 314,
181 L. Ed. 2d 193 (2011). ‘‘If a requested charge is in
substance given, the court’s failure to give a charge in
exact conformance with the words of the request will
not constitute a ground for reversal. . . . As long as
[the instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper. . . . Addition-
ally, we have noted that [a]n error in instructions in a
criminal case is reversible error when it is shown that
it is reasonably possible for errors of constitutional
dimension or reasonably probable for nonconstitutional
errors that the jury [was] misled.’’ (Citations omitted;
internal quotation marks omitted.) State v. Aviles, 277
Conn. 281, 309–10, 891 A.2d 935, cert. denied, 549 U.S.
840, 127 S. Ct. 108, 166 L. Ed. 2d 69 (2006). ‘‘A challenge
to the validity of jury instructions presents a question
of law over which [we have] plenary review.’’ (Internal
quotation marks omitted.) State v. Gomes, 337 Conn.
826, 849–50, 256 A.3d 131 (2021).
A
We first consider whether the trial court committed
instructional error when it failed to inform the jury of
the defendant’s right to rely on the alleged inadequacy
of the police investigation as a possible basis for finding
that the state had failed to prove him guilty beyond a
reasonable doubt.
‘‘[T]his court has recognized that defendants may use
evidence regarding the inadequacy of the investigation
into the crime with which they are charged as a legitimate
defense strategy. . . . Conducting a thorough, profes-
sional investigation is not an element of the government’s
case. . . . A defendant may, however, rely upon rele-
vant deficiencies or lapses in the police investigation to
raise the specter of reasonable doubt, and the trial court
violates his right to a fair trial by precluding the jury from
considering evidence to that effect.’’ (Citation omitted;
internal quotation marks omitted.) State v. Wright, 322
Conn. 270, 282, 140 A.3d 939 (2016). ‘‘[T]he inference that
may be drawn from an inadequate police investigation is
that the evidence at trial may be inadequate or unreliable
because the police failed to conduct the scientific tests
or to pursue leads that a reasonable police investigation
would have conducted or investigated, and these tests
or investigation reasonably may have led to significant
evidence of the defendant’s guilt or innocence. A jury
may find a reasonable doubt if [it] conclude[s] that the
investigation was careless, incomplete, or so focused
on the defendant that it ignored leads that may have
suggested other culprits.’’ (Internal quotation marks
omitted.) Id., 283.
The following additional facts are relevant to our reso-
lution of this claim. The main theory advanced by the
defendant at trial was that the police had conducted an
inadequate investigation of the incident. Specifically, the
defense argued that the police had (1) failed to consider
and investigate the possibility that Lovering’s injuries had
been self-inflicted and (2) acted with bias and prejudice
against the defendant because he was autistic.
During closing argument, defense counsel argued that
‘‘[t]he government’s case is fundamentally flawed. The
government wants you to find [the defendant] guilty
based solely upon the unreliable, uninvestigated, and
uncorroborated allegations of [Lovering]. They want you
to ignore the fact that it failed to conduct a complete
and unbiased investigation. . . . Proof beyond a reason-
able doubt is proof that precludes every reasonable
hypothesis except guilt and is inconsistent with any other
rational conclusion. The government hasn’t even
attempted to do that. . . . Detective Besse testified in
front of you it never occurred to him that these allega-
tions might not be true. It never occurred to him that
[Lovering], what he was saying might be false; that he
might be mistaken. . . . You can’t rely upon the evi-
dence presented in court based upon this incomplete
and biased investigation. . . . These are alternative,
innocent explanations that needed to be considered,
investigated in an attempt to rule [them] out. They
needed to gather evidence specifically on these issues.
‘‘There’s an obvious alternative innocent explanation
in this case. [Lovering] lost consciousness due to acute
alcohol intoxication. . . . Possibly [Lovering] engaged
in some sort of suicide gesture at the time when he was
highly intoxicated around 3:30 in the morning on October
22, 2016. . . . It’s also reported that he has a history of
loss of consciousness, especially when he’s drinking or—
specifically, when he’s drinking. . . . [Lovering] had a
practice of kneeling, putting his buttocks onto his feet,
and even he was so flexible, he could go all the way
back. . . . Acute alcohol intoxication alone is sufficient
to explain the serious medical injuries. . . . Detective
Besse never considered that. . . . There are many alter-
native, innocent explanations for the red marks on [Lov-
ering’s] neck. Possible suicide gesture, scratches by [Lov-
ering] or someone else. There’s talk about him engaging
in self-harm. . . . They could be explained by falls while
he’s intoxicated, falling on the stove, and there was evi-
dence of other falls. . . . It could have been nonfatal
autoerotic activities . . . . It could have been caused
by the self-flagellation with the flogger or cat-o’-nine-
tails whip. . . . Isn’t that extraordinary that someone
can be arrested and put on trial and that there never is
an investigation or serious investigation or even a
moment of consideration that the allegations might not
be true? It’s shocking. That alone is cause for reason-
able doubt.’’
In support of the defense theory of an inadequate
police investigation, the defense elicited testimony from
numerous witnesses at trial directing the jury’s attention
to inadequacies and omissions in the investigation. First
and foremost, on cross-examination, Besse, the lead
detective, testified that he never considered the possibil-
ity that Lovering’s allegation that the defendant had
strangled him was not true. Besse testified that he briefly
considered the possibility that Lovering’s injuries were
caused by autoerotic asphyxiation4 but quickly ruled it
out as a possibility due to the absence of any type of
ligature near Lovering when he was found and the fact
that his pants were on at that time. Besse simply testified
that he had no reason to disbelieve Lovering’s allegation
that the defendant had strangled him.
Additionally, Lovering’s Facebook records were not
obtained and reviewed by the police to determine if they
were consistent with Lovering’s version of events prior
to the arrest of the defendant. In fact, according to the
testimony of Facebook employee Christine Oliveira, Lov-
ering’s Facebook records were not requested by the state
until May 23, 2018, more than eighteen months after
Lovering suffered his injuries, and no preservation
request for those records was ever made, making it possi-
ble for messages to have been deleted from the records
before they were finally produced. Once the records
were obtained in 2018, they revealed a previously undis-
covered message suggesting that Lovering was planning
to die by suicide, which was sent to Muskus from Lov-
ering’s account at 3:30 a.m. on October 22. The message
cryptically, but ominously, told Muskus
to ‘‘[h]ave fun with my death.’’
Besse also testified that he never made a time line
of events on October 22, 2016, although, admittedly,
that would have been helpful to the investigation, for
it would have revealed inconsistencies in Lovering’s
version of events. Besse also conceded on cross-exami-
nation that he had failed to reconcile the claim made
by Lovering’s mother—that Lovering had awakened
from the coma on November 2, 2016, and immediately
told her that the defendant had strangled him—with
Lovering’s phone records showing that he had first
awakened from the coma and begun to make calls from
his cell phone more than one week earlier, on the eve-
ning of October 27. Besse testified that, if he had real-
ized this inconsistency, he would have interviewed both
Lovering and his mother about their claims. He also
stated that, if this inconsistency had been discovered
earlier, as it should have been, before the defendant
was arrested, it would have been brought to the court’s
attention in the application by the police for a warrant
for the defendant’s arrest.
Furthermore, Besse testified that he did not interview
either Lovering or Lovering’s mother on November 2,
the day the mother reported her son’s belated allegation
that the defendant had strangled him. Instead, Besse
interviewed only the defendant on that day. In fact,
Besse conceded in his testimony that he never inter-
viewed Lovering or his mother about the allegation that
the defendant had strangled him.
Last, defense counsel elicited testimony from Besse
that he never considered the possibility that the defen-
dant’s autism could explain his peculiar behaviors or his
inconsistent statements to paramedics and the police
when they responded to his 911 call about Lovering’s
injuries.
Defense counsel also adduced testimony about the
small number and poor quality of the photographs that
were taken by the police to document Lovering’s injur-
ies. Specifically, James R. Gill, the state’s chief medical
examiner and a forensic pathologist, testified that,
although multiple, close-range photographs are typi-
cally taken of neck compression injuries in order to
document them and assist in determining their cause,
the police in this case took just one blurry photograph of
Lovering’s injured neck. Ljubisa J. Dragovic, a forensic
pathologist, also testified that the one blurry photo-
graph taken in this case of the marks on Lovering’s
neck was insufficient to support any conclusion as to
what had caused those marks. According to Dragovic,
at least four photographs are required to determine the
cause of a neck injury: ‘‘The strangulation of any type
of neck manipulation calls for [a] photograph from the
front of the neck, [a] photograph of the left side, [a]
photograph of the right side, and [a] photograph of the
back of the neck . . . .’’ Dragovic further testified that,
in this case, with one photograph alone, ‘‘you cannot
say anything but that—other than there is an obliquely
oriented pattern of three lines in the front of the neck.
That’s all you can conclude on the basis of this photo-
graph.’’
In connection with his defense of an inadequate
police investigation, the defendant filed a written
request to charge the jury, which provided in relevant
part: ‘‘You have heard evidence and argument that the
police investigation was inadequate and that the police
involved in this case were incompetent. The ultimate
issue for you to decide is not the thoroughness of the
investigation or the competence of the police. Rather,
the ultimate issue you have to determine is whether
the state, in the light of all the evidence before you, has
proved beyond a reasonable doubt that the defendant
is guilty of the counts with which he is charged.
‘‘You should not acquit the defendant merely because
you conclude that the police have conducted an inade-
quate investigation. However, you may consider the
completeness or incompleteness of the police investiga-
tion when deciding whether the state has presented
evidence sufficient to preclude every reasonable
hypothesis inconsistent with the defendant’s guilt. You
may also consider whether the evidence concerning
the adequacy of the police investigation affects the
credibility of any witnesses who testified or the relia-
bility of any evidence before you.’’ (Emphasis added.)
On December 4, 2018, the court held a charge confer-
ence. The first paragraph of the defendant’s requested
jury charge was substantially similar to the former
model criminal jury instruction on investigative inade-
quacy then published on the Judicial Branch website.5
In discussing this paragraph of the defendant’s requested
jury charge, the court noted that ‘‘it’s factually disputed
that the police investigation was inadequate and the
police involved were incompetent . . . this is a charge
that should probably be there.’’ The court then stated,
however, that, although it was willing to instruct the
jury in accordance with the first paragraph of the defen-
dant’s request to charge, it was not inclined to instruct
it in accordance with the second paragraph of the
request to charge, as previously quoted in italics. In
response, defense counsel argued that ‘‘informing the
jury that this isn’t the ultimate issue is potentially mis-
leading without informing them how to use the evidence
of the police investigation . . . .’’ The state, however,
argued that ‘‘the first paragraph . . . fairly puts the
issue before the jury . . . .’’ After considering the argu-
ments from both parties, the court ruled that it would
not instruct the jury in accordance with the second,
italicized paragraph of the defendant’s request to
charge, explaining: ‘‘Well, I think it’s certainly fair com-
mentary for closing argument with regard to whether
the adequacy of the investigation affect[s] the credibility
of any witnesses, and so I do think that’s something
that can be addressed that way. It’s not part of the
pattern instruction. . . . I’m going to deny your request
for that second paragraph. I think the jury does have
sufficient ability to consider that evidence appropriately
under all of the court’s instructions when taken as a
whole.’’
Consistent with its foregoing ruling at the charge
conference, the court later instructed the jury in rele-
vant part: ‘‘You may have heard some argument that
the police investigation was inadequate and that one
or more police officers involved in this case were incom-
petent. The issue for you to decide is not the thorough-
ness of the investigation or the competence of the
police. The only issue you have to determine is whether
the state, in the light of all the evidence before you, has
proved beyond a reasonable doubt that the defendant
is guilty of the counts with which he is charged.’’
We agree with the defendant that the jury charge
given by the court was erroneous because it failed to
inform the jury of his right to have it consider the
inadequacy of the police investigation in evaluating
whether the state had proven him guilty beyond a rea-
sonable doubt.
Our Supreme Court’s recent decision in State v.
Gomes, supra, 337 Conn. 826, governs the analysis of
this claim on appeal. In Gomes, ‘‘[t]he main defense
advanced by the defendant was that the police had
conducted an inadequate investigation of the incident.’’
Id., 832. Defense counsel in Gomes argued that the state
had not proven its case beyond a reasonable doubt on
the basis of inadequacies in the police investigation. Id.
At trial, defense counsel elicited testimony that (1) the
defendant had left the scene of the crime before the
victim was assaulted, (2) another individual was beaten
up by a group of club patrons immediately after the
victim had sustained her injuries, (3) officers who were
dispatched to the scene were informed that another
individual was a suspect in the assault but never investi-
gated that other individual as a suspect, (4) the officers
did not ask for the names of or contact information for
any witnesses at the scene or attempt to interview them
as to what they had seen, and, (5) although the victim
had selected the defendant’s photograph from an array
at the police station and stated she was 100 percent
confident that he was the person who had attacked
her, she testified that she had never met or seen the
defendant prior to the night in question and that she
had only a split second to observe her attacker. Id.,
831–32, 847–48.
‘‘During closing arguments, defense counsel [in
Gomes] argued that this case screams reasonable doubt.
. . . [T]he police completely failed in this case, and
they completely failed [the victim]. They didn’t go back
to that scene that night. They didn’t identify the crime
scene. They didn’t take any photos so that you, ladies
and gentlemen, could see how the scene looked that
night. How the lighting looked. They never tried to get
any surveillance video. . . . They didn’t confirm what
happened. Defense counsel also argued that the police
spent ninety minutes on this investigation, and that the
case boil[ed] down to one witness and what she saw
in a split second, and she may very well believe that [the
defendant] did this to her.’’ (Internal quotation marks
omitted.) Id., 832.
‘‘In connection with his defense of inadequate police
investigation, the defendant had filed a written request
to charge the jury, which provided in relevant part:
[1] You have heard some arguments that the police
investigation was inadequate and biased. [2] The issue
for you to decide is not the thoroughness of the investi-
gation or the competence of the police. [3] However,
you may consider evidence of the police investigation
as it might relate to any weaknesses in the state’s case.
[4] Again, the only issue you have to determine is
whether the state, in light of all the evidence before
you, has proved beyond a reasonable doubt that the
defendant is guilty of the counts with which he is
charged.’’ (Internal quotation marks omitted.) Id., 833.
During the charge conference in Gomes, ‘‘the court
told defense counsel that it would be charging on the
adequacy of the police investigation, in a form that was
somewhat similar to the defendant’s requested instruc-
tion, but that [its instruction] may be a little bit differ-
ent.’’ (Internal quotation marks omitted.) Id. At trial,
however, the court instructed the jury, in relevant part,
using the then model jury instruction: ‘‘You have heard
some arguments that the police investigation was inade-
quate and that the police involved in the case were
incompetent or biased. The issue for you to decide is
not the thoroughness of the investigation or the compe-
tence of the police. The only issue you have to determine
is whether the state, in light of all the evidence before
you has proved beyond a reasonable doubt that the
defendant is guilty of the counts with which he was
charged.’’ (Internal quotation marks omitted.) Id.
Defense counsel excepted to the jury instructions as
given. Id., 833–34.
The jury subsequently found the defendant guilty,
and the defendant appealed to this court. Id., 834. The
defendant claimed that ‘‘the jury instructions, as given,
deprived him of his right to present a defense of investi-
gative inadequacy. Specifically, the defendant argue[d]
that the [trial] court erred in failing to include point
three of his requested jury charge, which [provides]:
However, you may consider evidence of the police
investigation as it might relate to any weaknesses in
the state’s case. The defendant argue[d] that without
the inclusion of this requested sentence, the jury would
not have understood how to use the evidence [defense
counsel] was able to elicit about the inadequacies of
[the police investigation].’’ (Internal quotation marks
omitted.) Id. This court rejected the defendant’s claim,
‘‘noting that the instruction given by the trial court was
(1) identical to the model criminal jury instruction on
investigative inadequacy provided on the Judicial
Branch website, and (2) consistent with investigative
inadequacy instructions approved by [our Supreme
Court in other cases].’’ (Citations omitted; footnote
omitted.) Id., 834–35. A certified appeal to our Supreme
Court followed. Id., 837.
In Gomes, our Supreme Court reversed, holding that
‘‘the model jury instruction utilized by the trial court
. . . failed to inform the jury not only of a defendant’s
right to rely upon relevant deficiencies or lapses in the
police investigation to raise the specter of reasonable
doubt . . . but also the jury’s concomitant right to con-
sider any such deficiencies in evaluating whether the
state ha[d] proved its case beyond a reasonable doubt.’’
(Citation omitted; internal quotation marks omitted.)
Id., 853.
In explaining its decision, our Supreme Court stated
that, ‘‘[a]lthough the model instruction is similar to the
instructions this court approved in Williams and Col-
lins because it informs the jury not to consider investi-
gative inadequacy in the abstract . . . the model
instruction, unlike the instructions in Williams and Col-
lins, improperly fails to inform the jury that a defendant
may present evidence of investigative inadequacy in his
or her particular case. Indeed, as the defendant argues,
the model instruction omits the very language that the
court in Collins determined rendered the instruction in
that case acceptable because it (1) apprised the jury
that the defendant was entitled to make an investigation
and put his evidence before [it], and (2) directed the
jury to determine, based on all the evidence before [it],
including evidence presented by the defendant, whether
the state had proved the defendant’s guilt beyond a
reasonable doubt. . . . The language that the defen-
dant requested be added to the model jury instruction—
i.e., that the jury may consider evidence of the police
investigation as it might relate to any weaknesses in
the state’s case—would have similarly apprised the jury
of the defendant’s right to present an investigative inad-
equacy defense and the jury’s right to consider it in
evaluating the strength of the state’s case.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Id., 853–54 (citing State v. Collins, supra, 299
Conn. 567; State v. Williams, 169 Conn. 322, 363 A.2d
72 (1975)).
The court in Gomes also stated that the model crimi-
nal jury instruction on investigative inadequacy ‘‘should
be improved on to better convey, as this court recently
explained in [State v. Wright, supra, 322 Conn. 283], that
‘[t]he inference that may be drawn from an inadequate
police investigation is that the evidence at trial may be
inadequate or unreliable because the police failed to
conduct the scientific tests or to pursue leads that a
reasonable police investigation would have conducted
or investigated, and these tests or investigation reason-
ably may have led to significant evidence of the defen-
dant’s guilt or innocence. A jury may find a reasonable
doubt if [it] conclude[s] that the investigation was care-
less, incomplete, or so focused on the defendant that
it ignored leads that may have suggested other cul-
prits.’ ’’ Id., 856 n.20.
‘‘Toward that end, [the court in Gomes] encourage[d]
our trial courts going forward to utilize the following
investigative inadequacy instruction, which bears resem-
blance to the one utilized by the Massachusetts courts:
You have heard some testimony of witnesses and
arguments by counsel that the state did not (mention
alleged investigative failure: e.g., conduct certain scien-
tific tests, follow standard procedure, perform a thor-
ough and impartial police investigation, etc.) in this
case. This is a factor that you may consider in deciding
whether the state has met its burden of proof in this
case because the defendant may rely on relevant defi-
ciencies or lapses in the police investigation to raise
reasonable doubt. Specifically, you may consider
whether (relevant police investigative action) would
normally be taken under the circumstances, whether, if
(that/those) action(s) (was/were) taken, (it/they) could
reasonably have been expected to lead to significant
evidence of the defendant’s guilt or innocence, and
whether there are reasonable explanations for the
omission of (that/those) action(s). If you find that any
omissions in the investigation were significant and not
reasonably explained, you may consider whether the
omissions tend to affect the quality, reliability, or credi-
bility of the evidence presented by the state to prove
beyond a reasonable doubt that the defendant is guilty
of the count(s) with which (he/she) is charged. The
ultimate issue for you to decide, however, is whether
the state, in light of all of the evidence before you, has
proved beyond a reasonable doubt that the defendant
is guilty of the count(s) with which (he/she) is charged.’’6
Id.Here, as in Gomes, the main defense theory advanced
by the defendant was that the police had conducted
an inadequate investigation of the incident. The state
attempts to distinguish the facts here from Gomes,
arguing that Gomes is not controlling because the defen-
dant here attacked the conclusions the police drew
from their investigation rather than the actual police
investigation itself. We disagree. As previously
detailed, defense counsel elicited testimony from
numerous witnesses regarding deficiencies or lapses
in the police investigation. Specifically, he presented
evidence that the police failed (1) to consider the possi-
bility that Lovering’s allegation that the defendant stran-
gled him was not true or that Lovering’s injuries were
caused by autoerotic asphyxiation, (2) to obtain and
preserve Lovering’s Facebook records, (3) to make a
time line of events on October 21 and 22, (4) to interview
Lovering or his mother about Lovering’s alleged state-
ment to her that the defendant had strangled him, (5)
to reconcile the inconsistency between the statement
of Lovering’s mother that Lovering had first awakened
from his coma and begun to talk to her on November
2 with his phone records, which indicated he had first
awakened from the coma and begun to use his cell
phone on October 27, (6) to consider that the defen-
dant’s autism was a possible explanation for his unusual
behavior after he reported Lovering’s injuries to the
police, and (7) to sufficiently document, either descrip-
tively or photographically, the injuries to Lovering’s
neck. Contrary to the state’s argument, this evidence
certainly highlights shortcomings in the police investi-
gation itself, not simply in the conclusions the police
drew from their investigation. Moreover, the court
noted during the charge conference that ‘‘it’s factually
disputed that the police investigation was inadequate
and the police involved were incompetent.’’ As a result,
the defendant was entitled to have the jury consider
evidence of any relevant deficiencies or lapses it might
find in the police investigation as bases for entertaining
reasonable doubt as to the defendant’s guilt. See State
v. Wright, supra, 322 Conn. 282 (‘‘[a] defendant may
. . . rely upon relevant deficiencies or lapses in the
police investigation to raise the specter of reasonable
doubt, and the trial court violates his right to a fair trial
by precluding the jury from considering evidence to
that effect’’ (internal quotation marks omitted)).
Additionally, here, as in Gomes, by instructing the
jury that ‘‘[t]he issue for [it] to decide [was] not the
thoroughness of the investigation or the competence
of the police’’ and that ‘‘[t]he only issue [it had] to
determine is whether the state, in the light of all the
evidence . . . has proved beyond a reasonable doubt
that the defendant is guilty of the counts with which
he is charged,’’ the court failed to inform the jury of
the defendant’s right to rely on relevant deficiencies or
lapses in the police investigation as possible bases for
raising reasonable doubt as to his guilt.7 The jury
instruction failed to inform the jury of its ‘‘concomitant
right to consider any such deficiencies in evaluating
whether the state has proved its case beyond a reason-
able doubt.’’ State v. Gomes, supra, 337 Conn. 853. Had
language of the sort requested by the defendant in the
second paragraph of his request to charge been added,
it would, as the current model jury instruction does,
have ‘‘apprised the jury of the defendant’s right to pres-
ent an investigative inadequacy defense and the jury’s
right to consider it in evaluating the strength of the
state’s case.’’ Id., 854.
Because the court failed to inform the jury of the
defendant’s right to rely on the inadequacy of the police
investigation and the jury’s right to rely on such inade-
quacies in evaluating whether the state has proved its
case beyond a reasonable doubt, we conclude that the
trial court committed instructional error in charging
the jury as it did.
B
Having determined that the trial court improperly
instructed the jury as to how it might consider evidence
of the inadequacy of the police investigation in conduct-
ing its deliberations, we next consider whether the jury
charge resulted in prejudice to the defendant. In so
doing, we first note that ‘‘the state bears the burden of
proving that the constitutional impropriety was harm-
less beyond a reasonable doubt.’’ State v. Brown, 279
Conn. 493, 511, 903 A.2d 169 (2006).
The defendant claims that the court’s instructional
error was harmful because ‘‘there is at the very least a
reasonable possibility that the jury was misled by the
[trial] court’s instructions’’ given the overall weakness
of the state’s case. We agree.
‘‘When a defendant challenges the trial court’s failure
to provide a requested charge, or some other impropri-
ety in the jury instructions, one of two separate and
distinct legal standards of review is used. If the claimed
omission or impropriety is of constitutional dimension,
we must be convinced that there is no reasonable possi-
bility that it affected the verdict. . . . When the error
is merely of an evidentiary nature, then the defendant
must prove that it was reasonably probable that the
jury was misled.’’ (Citation omitted.) State v. Ali, 233
Conn. 403, 422–23, 660 A.2d 337 (1995); see also State
v. Gomes, supra, 337 Conn. 849 (‘‘[a]n error in instruc-
tions in a criminal case is reversible error when it is
shown that it is reasonably possible for errors of consti-
tutional dimension or reasonably probable for noncon-
stitutional errors that the jury [was] misled’’ (internal
quotation marks omitted)).
The challenged jury instructions here involve a con-
stitutional right. See State v. Collins, supra, 299 Conn.
598 (‘‘[a] fundamental element of due process of law
is the right of a defendant charged with a crime to
establish a defense’’ (internal quotation marks omit-
ted)). ‘‘A defendant may . . . rely upon relevant defi-
ciencies or lapses in the police investigation to raise
the specter of reasonable doubt, and the trial court
violates his right to a fair trial by precluding the jury
from considering evidence to that effect.’’ (Internal quo-
tation marks omitted.) State v. Wright, supra, 322 Conn.
282. Because the defendant’s claim is of constitutional
magnitude, we review his claim by the ‘‘ ‘reasonable
possibility’ ’’ standard. See State v. Collins, supra,598–99 (applying ‘‘reasonable possibility’’ standard
where defendant claimed trial court violated his consti-
tutional right to present defense by improperly instruct-
ingjury that adequacy of police investigation was not
issue in case).
‘‘[T]he United States Supreme Court has repeatedly
reaffirmed the principle that an otherwise valid convic-
tion should not be set aside if the reviewing court may
confidently say, on the whole record, that the constitu-
tional error was harmless beyond a reasonable doubt.’’
(Internal quotation marks omitted.) State v. Brown,
supra, 279 Conn. 504. ‘‘[I]t is well established that a
defect in a jury charge which raises a constitutional
question is reversible error if it is reasonably possible
that, considering the charge as a whole, the jury was
misled. . . . [T]he test for determining whether a con-
stitutional error is harmless . . . is whether it appears
beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained.’’ (Internal
quotation marks omitted.) Bell v. Commissioner of Cor-
rection, 184 Conn. App. 150, 162, 194 A.3d 809 (2018),
aff’d, 339 Conn. 79, 259 A.3d 1073 (2021).
In Gomes, the court held that it was apparent that
the instructional error complained of was harmful to
the defendant, ‘‘[g]iven the relative weakness of the
state’s case . . . .’’ State v. Gomes, supra, 337 Conn.
855. The court determined that the state’s case was
relatively weak because it ‘‘turned almost entirely on
the believability of the victim’s testimony that, although
she had never seen the defendant before the night in
question and could not describe him to [a police officer]
when they spoke at the hospital following the assault,
and although the attack occurred in ‘a split second’
from behind a six foot fence, she was able to identify the
defendant as her assailant from a photographic array
conducted more than two weeks later. Defense counsel
sought to exploit and amplify the weaknesses in the
state’s evidence by directing the jury’s attention to inad-
equacies and omissions in the investigation, in particu-
lar [the officers’] failure to consider [another individual]
as a potential suspect, even though he was identified
as such by the police dispatcher, as well as their failure
to interview any of the witnesses who approached them
on the night in question outside the club, claiming to
have information about the assault. Defense counsel
asked the jury to find the defendant not guilty on the
basis of these investigative lapses because they raised
a reasonable doubt as to the trustworthiness of the
victim’s identification of him as the person who
attacked her. We cannot conclude that a properly
instructed jury would not have done so.’’ Id., 855–56.
Our Supreme Court in Gomes reasoned that there
was ‘‘a significant risk that the instruction given by the
trial court misled the jury to believe that it could not
consider the defendant’s arguments concerning the ade-
quacy of the police investigation. Although the first
sentence of the instruction acknowledged that the
defendant made arguments that the police had failed
to investigate adequately the crime in question, in the
very next sentence, the jury was instructed that the
adequacy of the police investigation was not for it to
decide. This admonishment was reinforced by the third
and final sentence that the only issue for the jury to
decide was whether the state had proven the defen-
dant’s guilt beyond a reasonable doubt. . . . Thus,
rather than apprising the jury that reasonable doubt
could be found to exist if the jury conclude[d] that the
investigation was careless, incomplete, or so focused
on the defendant that it ignored leads that may have
suggested other culprits . . . there is a reasonable pos-
sibility that the instruction had the opposite effect and
caused the jury to believe that it was prohibited from
considering any such evidence.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Id., 854–55.
Considered in light of the decision in Gomes, the
following additional facts are relevant to our resolution
of the state’s claim of harmlessness with respect to the
improper instruction challenged in this appeal. During
the trial, it became apparent that there were weak-
nesses in the state’s case against the defendant. Import-
antly, no one—not even Lovering—claimed to have
seen the defendant strangle Lovering. According to Lov-
ering’s testimony at trial, when he was allegedly being
strangled, he was sitting with his back to the door, on
his knees with his lower legs tucked beneath him, and
his buttocks resting on his legs. Lovering testified that
this was a common position for him to sit in. At the
time, Lovering claimed, he was talking to Muskus, who
was sitting on an air mattress in front of him. Lovering
testified that, while he and Muskus were talking, he felt
pressure around his neck from either rope or a string
and then everything went black. However, Lovering
testified that he did not see the person who allegedly
strangled him. According to Lovering, the next thing he
remembered was waking up in the hospital. Muskus,
however, did not corroborate Lovering’s version of
events at trial. According to Muskus’ testimony, in the
early hours of October 22, after the neighbors had left
the apartment, she and the defendant were in the defen-
dant’s room when Lovering came into the room.
According to Muskus, the defendant told Lovering that
he could no longer stay in the apartment. Muskus testi-
fied that Lovering began crying. Muskus testified that
she remained in the defendant’s room for the remainder
of the night.
Although Lovering suggested that the only possible
explanation for his injuries was that the defendant had
attempted to strangle him, testimony from other wit-
nesses supported several alternative explanations for
the red marks on his neck. Lin Monte testified that
there were three possible explanations for those marks,
including (1) an attempted suicide, (2) strangulation,
or (3) autoerotic asphyxiation. Dragovic testified that,
because of the single, blurry photograph of Lovering’s
neck injury, ‘‘[t]here [were] endless possibilities for [the
pattern on Lovering’s neck], based on how it appear[ed]’’
and the ‘‘extent of documentation present[ed] to us.’’
Paramedic Kelsey testified that it was possible Lov-
ering’s condition had been caused by autoerotic asphyx-
iation. Paramedic Ridenour testified that the marks on
Lovering’s neck were of various colors, indicating that
some of the marks were fresh but others were old.
Multiple witnesses also testified about possible
causes of the injuries to Lovering’s legs. Shah testified
that the lack of blood flow to Lovering’s legs could have
been the result of alcohol intoxication. Shah explained
that alcohol intoxication can cause a person to lose
consciousness and remain immobile for a prolonged
period of time, cutting off blood flow to parts of his
body. Shah testified that Lovering could have sustained
the observed injuries to his legs if he had fallen over
backward while kneeling with his lower legs on the
floor and his buttocks resting on his heels. Dragovic
also testified that the observed injuries to Lovering’s
legs could have been caused by acute alcohol intoxica-
tion alone, stating: ‘‘You can’t rule it out because, if
there is alcohol intoxication, that is the most logical
explanation of these complications . . . because of the
position one takes being intoxicated, being under the
influence of alcohol, and being in [a] prolonged position
in such a way so that it undercuts the circulation, the
blood supply to the large bulk of skeletal muscle and
skeletal muscle, after [a] few hours, has the tendency
to start necrosis and it undergoes necrosis and it shuts
down [the] kidneys and there is maybe irreparable dam-
age.’’
Inconsistencies in Lovering’s recollection of events
were also revealed at trial. Lovering testified that he
has had issues with his memory since suffering a head
injury in 2014. Inconsistencies existed between Lov-
ering’s written statement to the police on November
11, 2016, and his testimony at trial. Lovering gave a
signed, written statement to the police, which did not
mention the neighbors coming to the apartment. At
trial, however, Lovering testified that he had invited his
neighbors into the apartment for a drink.
When Lovering initially woke up from the coma in
the hospital, he told his doctors that he had no recollec-
tion of what had happened to him on October 22. It
was not until several days later, on November 2, that
he first told his mother that the defendant had strangled
him. When questioned about this inconsistency at trial,
Lovering testified that he did in fact remember what
had happened to him when he first spoke to his doctors
but he had lied to the doctors about it. Lovering testified
that he lied to his doctors about the cause of his injuries
because he did not want to deal with the situation.
Furthermore, a message suggesting that Lovering was
planning to die by suicide was sent from Lovering’s
Facebook account to Muskus’ Facebook account at 3:30
a.m. on October 22, 2016. The message stated: ‘‘Have
fun with my death.’’ Lovering claimed that he never sent
that message. On cross-examination, Lovering testified
that he did not have any recollection of what happened
during the time period when the message was sent.
Lovering testified that he did not believe he sent the
message because he ‘‘would never put anybody through
that turmoil’’ of thinking that he was going to kill him-
self. During trial, however, substantial challenges were
made to Lovering’s memory and general credibility. Lov-
ering admitted, for example, to having had problems
with drugs and alcohol in the past but firmly denied
that he was intoxicated in the early morning hours
of October 22. This claim was flatly contradicted by
Gottshall, who testified that she had seen Lovering at
about 2:30 a.m. on that date when she and her boyfriend
at the time, who then lived next door to Lovering,
returned to the boyfriend’s apartment. According to
Gottshall, Lovering appeared to be intoxicated at that
time, for his speech was slurred, he was stumbling when
he walked, and at one point he fell over in the kitchen,
striking the stove.
The defense also argued that any alleged inconsisten-
cies in the defendant’s recollection of events and his
behavior could be explained by his autism. Psychiatrist
Alexander Westphal testified that the defendant was
autistic, a diagnosis having been made in 2013. According
to Westphal, people with autism may have difficulty
telling stories in a coherent manner, may have memory
deficits, and may attempt to fill in gaps in their memo-
ries with events that may not have actually occurred.
Here, as in Gomes, there is a ‘‘significant risk that
the instruction given by the trial court misled the jury
to believe that it could not consider the defendant’s
arguments concerning the adequacy of the police inves-
tigation.’’ (Emphasis in original.) State v. Gomes, supra,
Conn. 854. As the court explained in Gomes, ‘‘[a]lthough
the first sentence of the instruction acknowledged that
the defendant made arguments that the police had failed
to investigate adequately the crime in question, in the
very next sentence, the jury was instructed that the
adequacy of the police investigation was not for it to
decide. This admonishment was reinforced by the third
and final sentence that the only issue for the jury to
decide was whether the state had proven the defen-
dant’s guilt beyond a reasonable doubt. . . . Thus,
rather than apprising the jury that reasonable doubt
could be found to exist if the jury conclude[d] that the
investigation was careless, incomplete, or so focused
on the defendant that it ignored leads that may have
suggested other culprits . . . there is a reasonable pos-
sibility that the instruction had the opposite effect and
caused the jury to believe that it was prohibited from
considering any such evidence.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Id., 854–55. Because there is a reasonable possibility
that the instruction caused the jury to believe that it
was prohibited from considering evidence of the inade-
quacy of the police investigation, the jury may have
ignored key evidence introduced by the defendant at
trial, as previously described, concerning the inade-
quacy of the investigation.
Furthermore, ‘‘[g]iven the relative weakness of the
state’s case, it also is apparent that the instructional
error was harmful to the defendant.’’ Id., 855. As pre-
viously noted, the state’s case against the defendant
turned almost entirely on the believability of Lovering’s
allegation that the defendant had strangled him,
although Lovering did not actually see the defendant
attempt to strangle him. Defense counsel also adduced
evidence tending to undermine Lovering’s credibility,
particularly as to inconsistencies in his claimed recol-
lection of events on the evening of October 22, lies he
admittedly told his doctors after he awakened from his
coma, and the message sent from his Facebook account
to Muskus’ Facebook account that stated: ‘‘Have fun
with my death,’’ which suggested that he was then con-
templating his own imminent death, and thus possibly
planning to die by suicide.
At trial, defense counsel sought to exploit and amplify
the weaknesses in the state’s case by directing the jury’s
attention to testimony from various witnesses concern-
ing these weaknesses. In particular, defense counsel
elicited testimony that there were alternative explana-
tions for Lovering’s neck injuries, including attempted
suicide or autoerotic asphyxiation and that the marks
on Lovering’s neck were of various colors, indicating
that some of them may have been made on a previous
occasion. Testimony also revealed that Lovering’s leg
injuries could have been caused by prolonged immobil-
ity of his legs during a period of unconsciousness
resulting from acute alcohol intoxication. Defense
counsel also argued that any inconsistencies in the
defendant’s statements and his odd mannerisms could
be explained by his autism.
During closing argument, defense counsel asked the
jury to find the defendant not guilty on the basis of
reasonable doubt arising both from the many alleged
inadequacies of the police investigation that led to his
arrest and prosecution, and from the overall weakness
of the state’s case. Here, as in Gomes, we conclude that
the defendant’s conviction must be reversed because
the state has not proved beyond a reasonable doubt that
a properly instructed jury would not have entertained
a reasonable doubt as to the defendant’s guilt on the
basis of the alleged deficiencies in the police investiga-
tion and thus found the defendant not guilty of all
charges in this case.
As a result, we conclude that there was a reasonable
possibility that the trial court’s instructional error mis-
led the jury, that it affected the verdict, and, thus, that
it was not harmless beyond a reasonable doubt,
resulting in prejudice to the defendant. See Bell v. Com-
missioner of Correction, supra, 184 Conn. App. 162(‘‘[I]t is well established that a defect in a jury charge
which raises a constitutional question is reversible error
if it is reasonably possible that, considering the charge
as a whole, the jury was misled. . . . [T]he test for
determining whether a constitutional error is harmless
. . . is whether it appears beyond a reasonable doubt
that the error complained of did not contribute to the
verdict obtained.’’ (Internal quotation marks omitted.)).
Accordingly, the proper remedy is to reverse the judg-
ment of conviction and remand this case for a new trial.
II
The defendant also claims that the trial court improp-
erly admitted into evidence a police disciplinary report
in violation of his state and federal constitutional rights
to confront the witnesses against him.8 Specifically, the
defendant argues that the report (1) constituted hearsay
that was not admissible under the business record
exception to the hearsay rule and (2) was testimonial.
We agree.
‘‘The standard under which we review evidentiary
claims depends on the specific nature of the claim pre-
sented. . . . To the extent a trial court’s admission of
evidence is based on an interpretation of [law], our stan-
dardof review is plenary. For example, whether a chal-
lenged statement properly may be classified as hearsay
and whether a hearsay exception properly is identified
are legal questions demanding plenary review. . . . As
a general matter, hearsay statements may not be admit-
ted into evidence unless they fall within a recognized
exception to the hearsay rule. . . . In the context of
a criminal trial, however, the admission of a hearsay
statement against a defendant is further limited by the
confrontation clause of the sixth amendment. Under
Crawford v. Washington, [541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004)], hearsay statements of an
unavailable witness that are testimonial in nature may
be admitted in accordance with the confrontation
clause only if the defendant previously has had the
opportunity to cross-examine the unavailable witness.
Nontestimonial statements, however, are not subject
to the confrontation clause and may be admitted under
state rules of evidence. . . . Thus, the threshold inquir-
ies that determine the nature of the claim are whether
the statement was hearsay, and if so, whether the state-
ment was testimonial in nature, questions of law over
which our review is plenary.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Smith, 289 Conn.
598, 617–19, 960 A.2d 993 (2008).
The following additional facts and procedural history
are relevant to our resolution of this claim on appeal.
During trial, the prosecution sought to introduce into
evidence a police observation report (report) written
by Sergeant Thomas Lazzaro on January 7, 2017, con-
cerning Marceau’s performance during the investigation
of this case, in order to show the actions taken by the
police department in response to that performance. The
first page of the report indicated that Marceau’s work on
this case was ‘‘unsatisfactory’’ as to his (1) techniques
of assignment, (2) judgment and decision-making, (3)
quality of work, and (4) initiative. The second page,
with the subsequently redacted material italicized, read:
‘‘On 10/22/2016 at approximately 1733 hours Officer
Marceau and Officer Homand responded to a residence
for a medical call . . . . The caller stated that the vic-
tim had red marks around his neck and stated he
believed the victim tried to hang himself. While at the
scene the victim was not conscious and could not pro-
vide any information. Officer Marceau stated there were
ligature marks present on the victim’s neck. As a result
Officer Marceau investigated the incident as a suicide
attempt [and] the victim was transported to Backus
Hospital. It was later determined, when the victim
regained consciousness, that the incident was not a
suicide attempt. The victim later provided information
that suggested the reporting person caused the victim’s
injuries. The case was later turned over to the Detective
Division as a serious assault investigation.
‘‘In light of the facts provided following Officer Mar-
ceau’s investigation, it was determined that the informa-
tion which suggested the incident was an assault could
have been discovered during the initial report. Some
inconsistencies in the information provided by the
reporting person and the scene itself clearly required
further investigation by the officers who initially
responded to the scene. As a result, valuable evidence
and on scene interview opportunities may have been
lost which adversely affected the investigation.
“More specifically, Officer Marceau failed to look
for, ask and identify any object in the area that could
have been used to make the victim’s ligature marks
which he clearly observed. Officer Marceau failed to
recognize the statements from the witnesses and infor-
mation did not correspond to what he was observing
in the area and around the victim. No photographs
were taken of the scene. Furthermore, the on duty road
supervisor was not contacted as a resource.
‘‘As a result of this incident it is apparent that Officer
Marceau can improve his performance in similar cir-
cumstances by probing further in on scene interviews
with principal parties involved. Officer Marceau can
improve by not taking information provided to him at
face value. Officer Marceau should spend more time
asking more questions when his observations do not
match information he gathers from evidence at the
scene, witnesses and the statements of medical person-
nel on scene or anyone else involved. Officer Marceau
should be clearly aware that if he has a question at any
time for any incident, he can contact the road supervisor
and should that supervisor not be available, he may
contact the shift supervisor.’’
The defense objected to the admission of the report,
arguing that it included the state’s opinion about the
strength of its case. Defense counsel argued that ‘‘there
are things in [the report] that are clearly just bolstering
of the prosecution’s case. Where whoever it is that
wrote this report, Sergeant Lazzaro is claiming that, in
light of the facts provided following Officer Marceau’s
investigation, it was determined that the information,
which suggests the incident was an assault and could
have been discovered during the initial report. That’s
just plainly bolstering. It’s an opinion that—it shouldn’t
be admitted into evidence.’’ Defense counsel also stated
that he planned to question Marceau about the report
but that he ‘‘certainly wouldn’t be offering it for the
truth of this was clearly an assault. That’s highly inap-
propriate.’’ Defense counsel also added that, ‘‘[t]his is
not a disciplinary report, Your Honor. It’s made to
appear as if he’s being disciplined to bolster their case,
but they shouldn’t be allowed to, in the process, express
their opinions to the jury about the strength of their
case.’’
In response to defense counsel’s objection, the prose-
cutor argued that the state was ‘‘claiming all of it now
because this was the action that they took. And it
doesn’t say clearly assaulted. It says suggested, I think,
but this is the action that the police department took
against him, and that’s not exactly phrased properly.
But this is the police response to this. That the objection
that this bolsters the state’s case—well, all of our evi-
dence is intended to bolster the state’s case. I mean,
there’s nothing particularly wrong with the state trying
to move its case forward. There’s no question that’s
what I’m doing.’’ The prosecutor argued that the report
should ‘‘go into evidence with the possibility of redac-
tions in the future.’’
The court stated, ‘‘I haven’t heard any testimony
about [the report] yet, so I don’t know if you’re asking
me to rule on it at this point, but, based on what I
understand or anticipate the state would be establish-
ing, I would think that some of this would be admissible,
and I would entertain a request that some parts of it be
redacted.’’ The court then overruled defense counsel’s
objection, and the report was admitted into evidence
as a full exhibit subject to redaction.
The following day, the defendant filed a motion for
reconsideration regarding the admission of the police
report. In his motion, the defendant argued that the
report was inadmissible hearsay and that the state had
not laid an adequate foundation to meet the require-
ments of the business record exception to the rule
against hearsay. The defendant further argued that the
admission of the report violated his right to confront
the witnesses against him pursuant to the sixth and
fourteenth amendments to the United States constitu-
tion and article first, § 8, of the Connecticut constitu-
tion.
The court heard argument on the motion, and defense
counsel iterated his assertion that the report constituted
inadmissible hearsay and that the state had not laid an
adequate foundation to meet the requirements of the
business record exception because ‘‘there’s no evidence
that it was the regular course of business to make these
observation reports or that this one, in particular, was
made in a regular course of business. In fact, it seems
as though this was a special, rare occurrence that’s
outside the usual course of business for the police
department. Next, in order for something to be a busi-
ness record, it needs to be created within a reasonable
amount of time after the incident that’s being described.
Here, this was made close to three months after the
investigation was initiated, and the events described
took place almost three months before the report was
prepared. Finally, it was prepared by Sergeant [Laz-
zaro], who has no role in the investigation of this case.
It’s not based, in any way, on his personal knowledge,
and so, given that, there’s no reason to think that it has
the requisite reliability to qualify as a business record.
The second related issue is that it violates the defen-
dant’s right to confrontation. The person who produced
this record has not been a witness. . . . The defendant
has a right to be able to present evidence before the jury
through cross-examination of any witness who testifies
against him.’’
The prosecutor, in response, argued that, ‘‘we did
move pursuant to the business record exception, [§ 8-
4 of the Connecticut Code of Evidence], and I think we
did lay a proper foundation under those rules, and I
don’t think it’s fair, at this juncture, after it’s already
been admitted, to claim a lack of proper foundation.
. . . In regard to [the argument] that the record is
required to be done or created close in time to the event
to which [it] purports to be about, we’re not saying
that that record is, in and of itself, about the events of
October 22, 2016. We’re saying it’s about the police
officer’s conduct, and there was what is referred to in
the police department as an observation—an observa-
tion report was made, and this document is contempo-
raneous with that event. I’m using the word disciplined,
but it’s not exactly the accurate word, as I understand
the rules of the police department, but it is an accurate
account of what the police department did in regard to
this police officer that the higher-ups felt had done a
job that could have been done better. And that’s what
that report is about, directly. It’s not directly about the
incident of October the 22nd, 2016, nor do we claim it.
[Defense counsel] says that the individual who prepared
the report wasn’t here or available for cross-examina-
tion. Of course, this is the exact reason for the business
record exception. That’s [sub]section B [of § 8-4 of the
Connecticut Code of Evidence] entitled witness need
not be available. . . . And the point of the document
was that the police officer was held accountable in
some sort of way by the authorities for what they con-
sidered to be an inadequate performance on or about
October 22, 2016. That’s what the report is meant to
address. That the police department looked at this con-
duct of the police officer and found it to be an inade-
quate response.’’ The prosecutor also argued, in the
alternative: ‘‘I would assert that it’s introduced [as non-
hearsay], and it is not for the truth of what’s purported
in the document. The purpose of the entry was to show
this is the action the police department took in regard
to this investigation by this particular police officer.’’
In rebuttal, defense counsel argued that ‘‘we need to
be able to cross-examine the person who made [the
report] in order to adequately present the case. Second,
almost the entire second page describes the investiga-
tion of this case. Now, if this document is admitted
for the purpose of simply showing that someone was
unhappy with his work, I think virtually the entirety of
the second page needs to be redacted because none of
that would come in under, through the business record
exception. . . . And I would point out, even though
the business record exception does allow for docu-
ments that were not produced—or it doesn’t require the
maker of the document to come in—the confrontation
clause does, and, in this instance, a criminal proceeding,
that trumps the rule of evidence.’’
The court subsequently granted the defendant’s
motion for reconsideration, but after reconsideration,
it ruled that its ‘‘prior decision to allow [the report] to
be a full exhibit with redactions stands.’’ From the
bench, the court stated: ‘‘[U]nder the circumstances,
since the document is being offered by the state only
to show that this was action that the Norwich Police
Department took, I am going to permit it to continue
to be marked as a full exhibit. However, I do understand
the defendant’s concern, and I am going to permit sub-
stantial redactions, particularly with respect to the nar-
rative on page two, which, I think, could fairly be viewed
as bolstering the state’s case improperly. So, I am going
to permit anything that could be viewed that way to be
redacted from this document. But because the state is
offering it really only to show that this was the action
that the Norwich Police Department took and not for
the truth of those matters that are contained, particu-
larly on page two, I am going to permit it to continue
to be marked as a full exhibit.’’ Redactions, as detailed
previously, were subsequently made to the report, and
the report was published to the jury as a full exhibit.
We agree with the defendant that the report consti-
tutes inadmissible hearsay and that the state failed to lay
an adequate foundation to satisfy the business record
exception to the hearsay rule. We further agree that
the report was testimonial, and therefore, its admission
into evidence in this case violated the defendant’s state
and federal constitutional rights to confront the wit-
nesses against him.
We first consider, as a threshold inquiry, whether the
report constituted hearsay. ‘‘An out-of-court statement
offered to establish the truth of the matter asserted is
hearsay. . . . The hearsay rule forbids evidence of out-
of-court assertions to prove the facts asserted in them.
If the statement is not an assertion or is not offered to
prove the facts asserted, it is not hearsay.’’ (Internal
quotation marks omitted.) State v. Gordon, 206 Conn.
App. 70, 82, 259 A.3d 676, cert. granted, 339 Conn. 913,
262 A.3d 135 (2021). The report is inarguably an out-
of-court statement. The report constitutes a statement
because it is a written assertion. See id., 83 (‘‘[a] state-
ment is defined as an oral or written assertion’’ (internal
quotation marks omitted)). The statement was also
made out of court. Therefore, we must consider the
purpose for which the report was admitted.
We conclude that the report was admitted for the
truth of the matter asserted. ‘‘It is settled law that out-
of-court statements that are not offered to establish the
truth of the matter asserted are not hearsay. [A]n out-
of-court statement offered to prove the truth of the
matter asserted is hearsay. . . . If such a statement is
offered for a purpose other than establishing the truth
of the matters contained in the statement, it is not
hearsay.’’ (Internal quotation marks omitted.) State v.
Willoughby, 153 Conn. App. 611, 617–18, 102 A.3d 1118(2014). In determining whether an out-of-court state-
ment is offered for the truth of the matter asserted, and
thus is hearsay, ‘‘the matter asserted [is] the matter
asserted by the writing or speech, not the matter
asserted by the proponent of the evidence.’’ (Internal
quotation marks omitted.) State v. Esposito, 223 Conn.
299, 315, 613 A.2d 242 (1992); see also State v. Williams,
48 Conn. App. 361, 368–69, 709 A.2d 43 (‘‘[t]he matter
asserted [in an out-of-court statement is] the matter
asserted by the writing or speech, not the matter
asserted by the proponent of the evidence’’ (internal
quotation marks omitted)), cert. denied, 245 Conn. 907,
718 A.2d 16 (1998).
Although the trial court determined that the report
was offered by the state only to show that the Norwich
Police Department took action with regard to Marceau’s
performance during the investigation of the case, the
matter asserted in the report relates to the investigation
of this case and the quality of Marceau’s work on the
case. The first page of the report asserts that Marceau’s
work on the case was unsatisfactory. Although the sec-
ond page of the report was subject to redactions, the
matter asserted on the second page is that Marceau’s
initial determination that the incident was a suicide
attempt was incorrect and that Marceau’s actions lead-
ing him to that conclusion were inadequate. Thus, the
report was introduced to prove that Marceau’s investi-
gation and conclusion that the incident was a suicide
attempt were inadequate and unsatisfactory. For these
reasons, we conclude that the report was introduced
to prove the truth of its contents.
Having determined that the report constituted hear-
say, we next determine whether the report was admissi-
ble under a hearsay exception. As detailed previously,
the state argued at trial that the report was admissible
under the business record exception. Because the trial
court concluded that the report was not hearsay, it did
not make an explicit finding concerning whether the
report fell under the business record exception. ‘‘[H]ear-
say may be admitted if there is a sufficient probability
that the statement is reliable and trustworthy, if the
evidence contained in the statement is necessary to
resolution of the case, and if the trial court concludes
that admitting the statement is in the interests of justice.
. . . Some types of admissible hearsay occur frequently
enough that certain defined exceptions to the general
rule of inadmissibility have come to be recognized.’’
(Citation omitted; internal quotation marks omitted.)
State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985).
One such exception is the business record exception
set forth in General Statutes § 52-180.9
‘‘To admit evidence under the business record excep-
tion to the hearsay rule, a trial court judge must find
that the record satisfies each of the three conditions
set forth in . . . § 52-180. The court must determine,
before concluding that it is admissible, that the record
was made in the regular course of business, that it was
the regular course of such business to make such a
record, and that it was made at the time of the act
described in the report, or within a reasonable time
thereafter.’’ (Internal quotation marks omitted.) River
Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn.
787, 793–94, 595 A.2d 839 (1991).
The state failed to establish that the report in this
case was made in the regular course of business, instead
of in anticipation of litigation. ‘‘The business record
exception recognizes that documents used for business
are trustworthy. Those prepared for litigation, however,
lack the presumption of trustworthiness.’’ Connecticut
Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702,
710, 638 A.2d 44 (1994). ‘‘[D]ocuments prepared for
litigation are excluded, not on a per se basis, but rather
upon an inquiry into whether such documents bear
circumstantial indicia of lack of trustworthiness. In the
exercise of appropriate discretion, courts may exclude
such records where they are self-serving and a motive
for falsification can be demonstrated.’’ (Internal quotation
marks omitted.) Webster Bank v. Flanagan, 51 Conn.
App. 733, 749, 725 A.2d 975 (1999). We conclude that
the report here lacks trustworthiness. The report was
made on January 7, 2017, after the defendant had been
arrested, but before the commencement of his trial. The
report was also made three months after the actions
described in it. Because the report was made after the
defendant’s arrest and three months after the events it
describes, it does not have the indicia of trustworthi-
ness required to fall within the business record excep-
tion. We therefore conclude that the report constitutes
inadmissible hearsay and does not fall under the busi-
ness record exception.
The defendant also claims that the admission of the
report violated his right to confront the witnesses
against him. ‘‘[T]he state’s use of hearsay evidence
against an accused in a criminal trial is limited by the
confrontation clause of the sixth amendment. . . . The
sixth amendment to the constitution of the United
States guarantees the right of an accused in a criminal
prosecution to be confronted with the witnesses against
him. This right is secured for defendants in state crimi-
nal proceedings. . . . [T]he primary interest secured
by confrontation is the right of cross-examination.’’
(Citations omitted; internal quotation marks omitted.)
State v. Carpenter, 275 Conn. 785, 816, 882 A.2d 604(2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164
L. Ed. 2d 309 (2006). ‘‘The confrontation clause of the
sixth amendment is made applicable to the states through
the due process clause of the fourteenth amendment.’’
(Internal quotation marks omitted.) State v. Simpson,
286 Conn. 634, 636 n.4, 945 A.2d 449 (2008). Article first,
§ 8, of the Connecticut constitution also provides that
a defendant has the right ‘‘to be confronted by the
witnesses against him . . . .’’ Conn. Const., art. I, § 8.
‘‘[O]ur Supreme Court has interpreted Connecticut’s
confrontation clause to provide the same protections
as its federal counterpart. . . . [W]ith respect to the
right to confrontation within article first, § 8, of our
state constitution, its language is nearly identical to the
confrontation clause in the United States constitution.
The provisions have a shared genesis in the common
law. . . . [T]he principles of interpretation for applying
these clauses are identical.’’ (Internal quotation marks
omitted.) State v. Hutton, 188 Conn. App. 481, 500 n.8,
205 A.3d 637 (2019).
The initial inquiry to determine whether the defen-
dant’s right to confrontation was violated is whether
the hearsay statement is testimonial in nature. See State
v. Lahai, 128 Conn. App. 448, 468, 18 A.3d 630 (‘‘the
threshold inquiry for purposes of the admissibility of
such statements under the confrontation clause is
whether they are testimonial in nature’’ (internal quota-
tion marks omitted)), cert. denied, 301 Conn. 934, 23
A.3d 727 (2011). ‘‘A police report is a quintessential
example of an extrajudicial statement contained in a
formalized testimonial material. It is signed by the
attesting officer under penalty of law. It is prepared with
an eye toward prosecution . . . and it is inherently
accusatory. . . . The primary purpose of a police
report is to establish or prove past events potentially
relevant to later criminal prosecution.’’ (Citations omit-
ted; internal quotation marks omitted.) Id., 469. Here,
we find that the report was testimonial in nature because
its purpose was to establish that Marceau’s work on
the present case and conclusion that the incident under
investigation was a suicide attempt rather than a crimi-
nal assault was inadequate and unsatisfactory. The
report suggests that Lovering was assaulted—a fact
relevant to the defendant’s prosecution. The statements
in the report were ‘‘made under circumstances which
would lead an objective witness reasonably to believe
that the statement would be available for use at a later
trial . . . .’’ (Internal quotation marks omitted.) Id.,
470–71.
In Crawford v. Washington, supra, 541 U.S. 68, the
United States Supreme Court held that ‘‘testimonial
hearsay statements may be admitted as evidence
against an accused at a criminal trial only when (1) the
declarant is unavailable to testify, and (2) the defendant
had a prior opportunity to cross-examine the declar-
ant.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Carpenter, supra, 275 Conn. 817. Here,
the state did not introduce any evidence that (1) Laz-
zaro, who prepared the report, was unavailable to testify
at trial, and (2) the defendant had a prior opportunity
to cross-examine Lazzaro. Therefore, we conclude that
the trial court improperly admitted the report into evi-
dence in violation of the defendant’s right to confront
witnesses against him.
We do not determine whether admission of the report
into evidence was harmless error. See State v. Raynor,
337 Conn. 527, 561 n.20, 254 A.3d 874 (2020) (‘‘The state
also contends that any error in this regard was harmless.
Because we address this claim as an issue likely to arise
on remand, we need not address questions of harmless
error [with respect to this claim] in the present
appeal.’’).
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
For clarity and ease of discussion, we have reordered the claims from
how they are set forth in the defendant’s brief.
2
In 2013, it was determined that the defendant was autistic. At trial,
defense counsel argued that any inconsistencies in the defendant’s state-
ments and his odd mannerisms could be explained by his autism.
3
The jury did not consider, and the trial court dismissed, a charge of
assault in the second degree in violation of General Statutes § 53a-60 (a) (1).
4
Autoerotic asphyxiation is ‘‘the practice of limiting the flow of oxygen
to the brain during masturbation in an effort to heighten sexual pleasure.’’
Critchlow v. First UNUM Life Ins. Co. of America, 378 F.3d 246, 250 (2d
Cir. 2004).
5
Connecticut Criminal Jury Instruction 2.6-14, titled ‘‘Adequacy of Police
Investigation,’’ was approved by the Judicial Branch’s Criminal Jury Instruc-
tion Committee on November 6, 2014. That instruction, as it existed at the
time of the charge conference, provided: ‘‘You have heard some arguments
that the police investigation was inadequate and that the police involved in
this case were incompetent. The issue for you to decide is not the thorough-
ness of the investigation or the competence of the police. The only issue
you have to determine is whether the state, in light of all the evidence before
you, has proved beyond a reasonable doubt the defendant is guilty of the
count[s] with which (he/she) is charged.’’ See State v. Gomes, supra, 337
Conn. 834 n.7.
The commentary to instruction 2.6-14 provided: ‘‘ ‘A defendant may . . .
rely upon relevant deficiencies or lapses in the police investigation to raise
the specter of reasonable doubt, and the trial court violates his right to a
fair trial by precluding the jury from considering evidence to that effect.’
State v. Collins, [supra, 299 Conn. 599–600] (finding that such an instruction
as this does not preclude the jury from considering the evidence of the
police investigation as it might relate to any weaknesses in the state’s case).
‘Collins does not require a court to instruct the jury on the quality of police
investigation, but merely holds that a court may not preclude such evidence
and argument from being presented to the jury for its consideration.’ State
v. Wright, 149 Conn. App. 758, 773–74, [89 A.3d 458] cert. denied, 312 Conn.
917 [94 A.3d 641] (2014).’’ See State v. Gomes, supra, 337 Conn. 834–35 n.7.
6
This instruction was subsequently approved by the Judicial Branch’s
Criminal Jury Instruction Committee as 2.6-14, titled ‘‘Adequacy of Police
Investigation.’’ Connecticut Criminal Jury Instructions 2.6-14, available at
https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited January 19,
2022).
7
In Gomes, the court made clear that ‘‘[t]he language used in the model
jury instructions, although instructive in considering the adequacy of a jury
instruction . . . is not binding on this court. . . . [W]e previously have
cautioned that the . . . jury instructions found on the Judicial Branch web-
site are intended as a guide only, and that their publication is no guarantee
of their adequacy.’’ (Citation omitted; internal quotation marks omitted.)
State v. Gomes, supra, 337 Conn. 853 n.19.
8
Although our conclusion in part I of this opinion is dispositive of the
present appeal, we address the defendant’s claim that the trial court improp-
erly admitted the police disciplinary report because it has been raised and
fully briefed, and it is likely to arise on remand. See, e.g., State v. Chyung,
325 Conn. 236, 260 n.21, 157 A.3d 628 (2017) (addressing claim that court
abused its discretion in admitting evidence of uncharged misconduct
because issue was likely to arise on remand).
9
General Statutes § 52-180 (a) provides: ‘‘Any writing or record, whether
in the form of an entry in a book or otherwise, made as a memorandum or
record of any act, transaction, occurrence or event, shall be admissible as
evidence of the act, transaction, occurrence or event, if the trial judge finds
that it was made in the regular course of any business, and that it was the
regular course of the business to make the writing or record at the time
of the act, transaction, occurrence or event or within a reasonable time
thereafter.’’