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*********************************************** 
STATE OF CONNECTICUT v. LUIS CASTRO

(AC 43386)

Keller, Prescott and Devlin, Js.

Syllabus

Convicted of the crime of murder in connection with the shooting death of

the victim, the defendant appealed. He claimed that the trial court violated his right under the confrontation clause of the sixth amendment

when it admitted into evidence a certain ballistics report, whose author

did not testify at trial, after defense counsel expressly waived the defendant’s confrontation right. The state had elicited testimony from R, a

police forensics supervisor, about the findings of the report, which R

neither authored nor peer-reviewed. Defense counsel indicated to the

court that, to expedite matters, he had no objection to the admission

of the report or to R’s testifying about its contents. The defendant further

claimed that this court should hold that the right to confrontation can

only be personally waived by the defendant because article first, § 8, of

the Connecticut constitution provides greater protection than the federal

constitution. Held:

1. The defendant could not prevail on his unpreserved claim that counsel’s

waiver of his confrontation right was invalid because the trial court

failed to make a finding that counsel’s decision was a legitimate trial

tactic or part of a prudent trial strategy: despite the defendant’s claim

that his counsel’s rationale for the waiver, which was to expedite matters,

could not be considered a legitimate trial tactic or part of a prudent

trial strategy, counsel’s indication to the court that he had no objection

to the admission of the ballistics report or to R’s testifying as to its

contents constituted a valid, express waiver of the defendant’s sixth

amendment confrontation clause claim, and this court declined to apply

a rule requiring the trial court to explore defense counsel’s rationale

for the waiver and to make a finding that it was either a legitimate trial

tactic or part of a prudent trial strategy before accepting the waiver, our

Supreme Court having repeatedly and expressly rejected the proposition

that a trial court is required to assess defense counsel’s professional

judgment before accepting his or her waiver of a constitutional claim;

moreover, in circumstances in which defense counsel’s waiver of a

constitutional claim constitutes a violation of the defendant’s right to

the effective assistance of counsel, the defendant may seek recourse

through habeas corpus proceedings.

2. The defendant’s claim that the right to confrontation can only be personally

waived by the defendant was unavailing, as his assertion that article

first, § 8, of the state constitution provides greater protection than the

federal constitution was contrary to established precedent.

Submitted on briefs April 6—officially

released September 29, 2020

Procedural History

Substitute information charging the defendant with

the crime of murder, brought to the Superior Court in

the judicial district of Waterbury and tried to the jury

before Alander, J.; verdict and judgment of guilty, from

which the defendant appealed. Affirmed.

Emily Graner Sexton, assigned counsel, and Matthew C. Eagan, assigned counsel, filed a brief for the

appellant (defendant).

Maureen Platt, state’s attorney, Jesse Ware Giddings,

assistant state’s attorney, and Laurie N. Feldman, special deputy assistant state’s attorney, filed a brief for

the appellee (state).
Opinion

PRESCOTT, J. The defendant, Luis Castro, appeals

from the judgment of conviction, rendered after a jury

trial, of murder in violation of General Statutes § 53a54a (a). On appeal, the defendant claims that the trial

court violated his right under the confrontation clause

of the sixth amendment to the United States constitution.1 Specifically, the defendant argues that the trial

court improperly admitted into evidence a ballistics

report that was authored by an individual whom the

defendant did not have an opportunity to confront

because he did not testify at trial, after defense counsel

expressly waived, without any legitimate or prudent

strategical reasons, the defendant’s confrontation right

with respect to the author of the ballistics report.2 The

defendant further argues that article first, § 8, of the

Connecticut constitution3 provides greater protection

than the federal constitution, and, thus, a waiver of the

right to confrontation must be personally made by the

defendant in order to comport with our state constitution. We disagree with the defendant and, accordingly,

affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. On April 9, 2016, at about 2 a.m., a group of

people, including the defendant, Jacquise Henry, and

Michael Roman, arrived at Bobby D’s Cafe ́, a bar on

Whitewood Road in Waterbury. Shortly thereafter, the

group confronted the victim, Harry Mendoza, who was

by a pool table. Henry punched the victim in the face,

and a physical altercation involving many of the bar

patrons ensued. The bartender told everyone to leave.

The defendant, Henry, and the victim walked out to the

parking lot near the rear of the building. The defendant

took a revolver from his waistband and shot the victim

twice. The victim was transported to Waterbury Hospital where he died from his gunshot wounds.

Later that day, Henry turned himself in to the police

and gave a statement identifying the defendant as the

shooter. The police obtained a warrant for the defendant’s arrest but were unable to find him. On April 18,

2016, the defendant turned himself in to the United

States Marshals Service in Puerto Rico. No weapon was

ever recovered. The defendant was charged with the

victim’s murder.4

The defendant elected a jury trial, which began on

May 14, 2018. On the third day of trial, the state called

as a witness Joseph Rainone, supervisor of the forensics

division of the Waterbury Police Department, and had

him explain the findings of a ballistics report, which

was admitted into evidence for substantive purposes

but that he neither authored nor peer-reviewed.5 Specifically, Rainone testified, inter alia, that, after assessing

a bullet recovered from the victim’s body, a state’s firearms examiner concluded that it was discharged from
a .38 or .357 caliber firearm, which could have been a

revolver or a semiautomatic pistol. While testifying,

Rainone stated that, on the basis of the report, the bullet

would have come from a revolver.6 Defense counsel

did not object to either the admission of the ballistics

report or to Rainone’s testimony. At the conclusion of

the testimony, the court requested a sidebar conference

with counsel. Subsequently, outside the presence of

the jury, the court summarized the conference on the

record. The following colloquy ensued:

‘‘The Court: So, first I want to put on the record

that—a sidebar conversation I had with counsel at the

conclusion of Joseph Rainone’s testimony. Mr. Rainone

obviously testified as to the contents of the state lab

firearms report, exhibit 39. The defense had no objection to the admission of that report. And then Mr. Rainone testified as to the contents of the report. I just

wanted to verify that the defense had no objection to

Mr. Rainone testifying as to the contents of the report.

He obviously was not the author of that report. And

under Crawford v. Washington [541 U.S. 36, 124 S. Ct.

1354, 158 L. Ed. 2d 177 (2004)], the defendant has a

right to have the author of that report testify. And,

[defense counsel], you indicated that you had no objection to Mr. Rainone testifying with respect to the report.

Anybody want to be heard?

‘‘[Defense Counsel]: Judge, just to complete the

record—

‘‘The Court: Yes.

‘‘[Defense Counsel]: —that is correct. I spoke with

the state’s attorney. Obviously that report, it speaks for

itself, it’s not terribly complicated. The issue would be

the individual that authored that report, I believe, is no

longer in the state. So, to expedite matters, [the state]

had indicated to me Mr. Rainone’s credentials and what

he would testify to. I saw no problem with it, whatsoever.

‘‘The Court: Okay.

‘‘[Defense Counsel]: So, I had no objection.

‘‘The Court: Okay.

‘‘[Defense Counsel]: I knew it was going to happen,

and it’s—

‘‘The Court: Okay, fine.

‘‘[Defense Counsel]: —absolutely no objection.’’

The jury found the defendant guilty of murder in

violation of § 53a-54a (a), and he was subsequently sentenced to forty-seven years of incarceration. This

appeal followed.

I

The defendant first claims that the trial court violated

his sixth amendment right to confrontation by admitting
the ballistics report into evidence because, even though

defense counsel expressly waived the defendant’s right

to confront the author of the report, the waiver was

invalid.7 Specifically, the defendant argues that, pursuant to State v. Rivera, 129 Conn. App. 619, 632, 22 A.3d

636, cert. denied, 302 Conn. 922, 28 A.3d 342 (2011),

counsel’s waiver of a defendant’s sixth amendment right

to confrontation is invalid unless (1) the defendant does

not dissent from his attorney’s decision, and (2) the

attorney’s decision is a legitimate trial tactic or part of

a prudent trial strategy. The defendant acknowledges

that he did not dissent, on the record, from his counsel’s

decision, but he contends that the trial court failed to

make a finding that the decision was a legitimate trial

tactic or part of a prudent trial strategy. Additionally, the

defendant asserts that defense counsel’s given rationale

for the waiver, namely, ‘‘ ‘to expedite matters,’ ’’ cannot

be considered a legitimate trial tactic or part of a prudent trial strategy, and, to the extent that the trial court

accepted this rationale, it committed reversible error.

For these reasons, the defendant contends that he was

deprived of his confrontation right under the sixth

amendment. We disagree.

The defendant concedes that he did not preserve this

claim at trial and seeks review pursuant to State v.

Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),

as modified by In re Yasiel R., 317 Conn. 773, 781,

120 A.3d 1188 (2015). Under Golding, ‘‘a defendant can

prevail on a claim of constitutional error not preserved

at trial only if all of the following conditions are met:

(1) the record is adequate to review the alleged claim

of error; (2) the claim is of constitutional magnitude

alleging the violation of a fundamental right; (3) the

alleged constitutional violation . . . exists and . . .

deprived the defendant of a fair trial; and (4) if subject

to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’’ (Emphasis in original;

footnote omitted.) State v. Golding, supra, 239–40. ‘‘The

first two Golding requirements involve whether the

claim is reviewable, and the second two involve

whether there was constitutional error requiring a new

trial.’’ (Internal quotation marks omitted.) State v.

Fabricatore, 281 Conn. 469, 477, 915 A.2d 872 (2007).

With respect to the first two prongs, we note that

the record, which contains the full transcript of the trial

proceedings, is adequate for our review; see id.; and

the claim is of constitutional magnitude because it

implicates the defendant’s sixth amendment right to

confrontation. Accordingly, the defendant’s claim is

reviewable under Golding. Therefore, we next address

the merits of the defendant’s claim under the third prong

of Golding.

‘‘[A] constitutional claim that has been waived does

not satisfy the third prong of the Golding test because,
in such circumstances, we simply cannot conclude that

injustice [has been] done to either party . . . or that

the alleged constitutional violation . . . exists and

. . . deprived the defendant of a fair trial . . . . To

reach a contrary conclusion would result in an ambush

of the trial court by permitting the defendant to raise

a claim on appeal that his or her counsel expressly

had abandoned in the trial court.’’ (Citations omitted;

emphasis omitted; internal quotation marks omitted.)

State v. Holness, 289 Conn. 535, 543, 958 A.2d 754 (2008).

‘‘It is well settled that a criminal defendant may waive

rights guaranteed to him under the constitution. . . .

The mechanism by which a right may be waived, however, varies according to the right at stake. . . . For

certain fundamental rights, the defendant must personally make an informed waiver. . . . For other rights,

however, waiver may be effected by action of counsel.’’

(Citations omitted; internal quotation marks omitted.)

Mozell v. Commissioner of Correction, 291 Conn. 62,

71, 967 A.2d 41 (2009). ‘‘As to many decisions pertaining

to the conduct of the trial, the defendant is deemed

bound by the acts of his lawyer-agent . . . . Thus, decisions by counsel are generally given effect as to what

arguments to pursue . . . what evidentiary objections

to raise . . . and what agreements to conclude regarding the admission of evidence . . . . Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last.’’ (Internal quotation marks omitted.)

State v. Kitchens, 299 Conn. 447, 468, 10 A.3d 942 (2011),

quoting New York v. Hill, 528 U.S. 110, 115, 120 S. Ct.

659, 145 L. Ed. 2d 560 (2000). ‘‘The fundamental rights

that a defendant personally must decide to waive are

therefore distinguishable from tactical trial rights that

are not personal to the defendant and that counsel may

choose to waive as part of trial strategy.’’8 State v. Gore,

288 Conn. 770, 778–79, 955 A.2d 1 (2008).

‘‘[T]he definition of a valid waiver of a constitutional

right . . . [is] the intentional relinquishment or abandonment of a known right.’’ (Internal quotation marks

omitted.) Id., 776. ‘‘When a party consents to or

expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be

reviewed on appeal. See, e.g., State v. Holness, [supra,

289 Conn 544–45] (holding that defendant waived [claim

under Crawford v. Washington, supra, 541 U.S. 36, that

trial court improperly admitted recording of conversation in violation of confrontation clause of federal constitution] when counsel agreed to limiting instruction

regarding hearsay statements introduced by state on

cross-examination) . . . .’’ (Citation omitted; emphasis added; internal quotation marks omitted.) Mozell v.

Commissioner of Correction, supra, 291 Conn. 71–72.

In the present case, the defendant does not dispute

that defense counsel knowingly and intentionally abandoned the defendant’s sixth amendment right to con-
front the author of the ballistics report. Rather, he maintains that, when counsel expressly waives a defendant’s

right to confrontation, the trial court has a duty to

‘‘[explore] defense counsel’s rationale for the waiver’’

and make a finding that it is either a legitimate trial

tactic or part of a prudent trial strategy before accepting

it. In support of that assertion, the defendant relies on

the standard under federal case law that this court

applied in Rivera, namely, that counsel may waive a

defendant’s sixth amendment right to confrontation, if

(1) the defendant does not dissent from his attorney’s

decision, and (2) ‘‘it can be said that the attorney’s

decision was a legitimate trial tactic or part of a prudent

trial strategy.’’ (Internal quotation marks omitted.) State

v. Rivera, supra, 129 Conn. App. 631.

In response, the state argues that the trial court has

no duty to elicit or examine the soundness of counsel’s

decision to waive a confrontation clause claim. Moreover, the state asserts that a claim that counsel’s waiver

was not part of a legitimate trial tactic or part of a

prudent trial strategy is, in essence, a claim of ineffective assistance of counsel, which can be properly

addressed only in a habeas corpus proceeding. We agree

with the state.9

Our Supreme Court has repeatedly and expressly

rejected the proposition that a trial court is required to

assess defense counsel’s professional judgment before

accepting his or her waiver of a constitutional claim.

Specifically, in Holness, the defendant argued, inter alia,

that defense counsel’s waiver of his sixth amendment

Crawford claim was invalid because the state did not

demonstrate that counsel’s waiver was knowing and

intelligent. The court disagreed, reasoning that,

‘‘[a]lthough a defendant will not be deemed to have

waived certain constitutional rights unless the state can

demonstrate that the defendant’s waiver was knowing

and intelligent . . . that requirement is inapplicable

when, as in the present case, counsel has waived a

potential constitutional claim in the exercise of his or

her professional judgment. . . . In our adversary system, the trial court was entitled to presume that defense

counsel was familiar with Crawford and had acted competently in determining that the limiting instruction was

adequate to safeguard the defendant’s sixth amendment

rights. To conclude otherwise would require the trial

court to canvass defense counsel with respect to counsel’s understanding of the relevant constitutional principles before accepting counsel’s agreement on how to

proceed. For good reason, there is nothing in our criminal law that supports such a requirement.’’ (Citations

omitted; footnote omitted.) State v. Holness, supra, 289

Conn. 544.

The court employed the same rationale in Kitchens

to justify the implied waiver rule for jury instruction

claims. See State v. Kitchens, supra, 299 Conn. 482–83;
id., 486–91 (‘‘In adopting the standard set forth in this

opinion, we also rely on . . . the widely recognized

presumption that counsel is competent . . . . As we

explained in Holness, when . . . counsel has waived

a potential . . . claim . . . in the exercise of his or

her professional judgment . . . [it may be] presume[d]

that defense counsel was familiar with [the law] and

. . . acted competently in determining that the [court’s]

limiting instruction was adequate to safeguard the

defendant’s [constitutional] rights. To conclude otherwise would require the trial court to canvass defense

counsel with respect to counsel’s understanding of the

relevant constitutional principles before accepting

counsel’s agreement on how to proceed. . . . [T]here

is nothing in our criminal law that supports such a

requirement.’’ (Citations omitted; footnote omitted;

internal quotation marks omitted.)). In State v. Bellamy,

323 Conn. 400, 414–19, 147 A.3d 655 (2016), the court

used the rationale again when rejecting the defendant’s

invitation to overrule Kitchens. See id., 419 (stating that

‘‘a comprehensive canvass of this nature not only would

be difficult if not impossible to conduct, but would not

promote this court’s interest in judicial economy, given

the time required to determine whether counsel was

aware of every conceivable constitutional principle

under which an instructional flaw might be identified’’).

Moreover, ‘‘in circumstances in which defense counsel’s waiver of a constitutional claim cannot be justified,

that is, when the waiver constitutes a violation of the

defendant’s right to the effective assistance of counsel,

the defendant may seek recourse through habeas corpus proceedings.’’ State v. Holness, supra, 289 Conn.

544 n.8. ‘‘[A] claim of ineffective assistance of counsel

is more properly pursued on a petition for new trial or

on a petition for a writ of habeas corpus rather than

on direct appeal . . . [because] [t]he trial transcript

seldom discloses all of the considerations of strategy

that may have induced counsel to follow a particular

course of action.’’ (Internal quotation marks omitted.)

State v. Taft, 306 Conn. 749, 768, 51 A.3d 988 (2012).

‘‘[A] habeas proceeding provides a superior forum for

the review of a claim of ineffective assistance because

it provides the opportunity for an evidentiary hearing

in which the attorney whose conduct is challenged may

testify . . . .’’ State v. Kitchens, supra, 299 Conn.

496–97; see also State v. Bellamy, supra, 323 Conn.

431 (reiterating that habeas proceeding is ‘‘ ‘superior

forum’ ’’ for reviewing claim of ineffective assistance

of counsel because it allows for development of record

‘‘sufficient to determine whether counsel waived [a]

claim for constitutionally acceptable strategic reasons’’).

Defense counsel’s indication that he had ‘‘absolutely

no objection’’ to the admission of the ballistics report,

or to Rainone testifying to the contents of that report,

constituted a valid, express waiver of the defendant’s
sixth amendment confrontation clause claim. Thus, in

light of the authority already set forth in our discussion

of this claim, the defendant’s claim fails under the third

prong of State v. Golding, supra, 213 Conn. 240. The

defendant may seek recourse through habeas corpus,

which is the superior forum for determining whether

counsel waived a constitutional claim for acceptable

strategic reasons.10 See State v. Kitchens, supra, 299

Conn. 496–97; see also State v. Bellamy, supra, 323

Conn. 431.

Furthermore, we decline the defendant’s invitation

to apply the rule articulated under federal law in State

v. Rivera, supra, 129 Conn. App. 619, for two reasons.

First, that case is factually distinct from the present

case, in that it involved an instance of implied waiver,

not express waiver. Indeed, in that case, defense counsel consented to the admission of a recording without

being aware that it contained a hearsay statement to

which she had objected, and the court excluded, when

it was offered into evidence through witness testimony.

See id., 623–24. As such, the court’s conclusion that

defense counsel had waived the defendant’s sixth

amendment claim by consenting to the admission of

the recording as a full exhibit arose from an inference

that defense counsel knowingly and voluntarily had

relinquished the right. Id., 636; see also State v. Bellamy,

supra, 323 Conn. 443 (‘‘implied waiver . . . arises from

an inference that the defendant knowingly and voluntarily relinquished the right in question . . . and . . .

competent counsel is presumed, when determining

whether a defendant’s waiver of a constitutional right

or statutory privilege has been knowing and intelligent’’

(citation omitted; internal quotation marks omitted)).11

By contrast, in the present case, there is no question

that defense counsel knowingly and voluntarily waived

the defendant’s right to confrontation.

Second, the federal standard applied in Rivera has

not been adopted by our Supreme Court, and may have

been superseded by more recent developments in Connecticut’s law of waiver, including our apparent divergence from federal waiver law. Specifically, in Bellamy,

the defendant argued that the court should overrule

Kitchens and instead follow federal waiver law as it

pertains to unpreserved jury instruction claims. See

State v. Bellamy, supra, 323 Conn. 414, 433. The court

rejected this argument on the ground that, inter alia,

‘‘federal waiver law is inconsistent with our jurisprudence, thus making a comparison of federal and Connecticut law extremely difficult, if not impossible.’’ Id.,

435. The court explained that, under federal law, ‘‘[a]

finding of waiver requires evidence that the defendant

knowingly and voluntarily approved of the disputed

[jury] instruction after an on-the-record discussion . . .

or very clear evidence that the failure to object was

due to tactical considerations. . . .12 In contrast, Connecticut waiver law is construed more broadly . . .
and plain error review more strictly. . . . Unpreserved

claims that have not been waived are not automatically

reviewed under the plain error doctrine because the

plain error doctrine in Connecticut, unlike under federal

law, is one of reversibility rather than reviewability.’’

(Citations omitted; emphasis added; footnote added.)

Id., 437–38. Accordingly, in light of the fundamental

differences between federal case law and our state’s

jurisprudence in the law of waiver, we decline to apply

the federal standard articulated in Rivera, here, to an

instance in which defense counsel’s waiver was express

as opposed to implied.

II

The defendant’s second argument is that article first,

§ 8, of the Connecticut constitution provides greater

protection than the federal constitution and, thus, that

this court should hold that the right to confrontation

can only be personally waived by the defendant. We

reject this argument, as it is contrary to established

precedent. Indeed, in State v. Lockhart, 298 Conn. 537,

4 A.3d 1176 (2010), our Supreme Court determined that

‘‘with 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 sixth amendment to the United States constitution. The provisions

have a shared genesis in the common law. . . . Moreover, we have acknowledged that the principles of interpretation for applying these clauses are identical. . . .

Therefore, we are not convinced that we should . . .

construe the confrontation clause of our state constitution to provide greater protections than its federal counterpart.’’ (Citations omitted.) Id., 555.

Similarly, in State v. Jones, 140 Conn. App. 455, 59

A.3d 320 (2013), aff’d, 314 Conn. 410, 102 A.3d 694

(2014), this court concluded that ‘‘there exists no legal

basis that suggests that our state constitution provides

the defendant any broader protection [than the federal

constitution] to confront a witness against him.’’ Id.,

466. ‘‘In the brief time since our Supreme Court conducted [its analysis under State v. Geisler, 222 Conn.

672, 684–86, 610 A.2d 1225 (1992)] of the confrontation

clause in Lockhart, no decision from our state courts

or from our sister states’ appellate courts has called

into question the soundness of its logic. Further, there

are no compelling economic or sociological concerns

that have arisen since the analysis was authored that

would support a change in the interpretation of our

confrontation clause.’’ State v. Jones, supra, 475–76.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The sixth amendment to the United States constitution provides in relevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against him . . . .’’ U.S. Const.,

amend. VI. ‘‘[T]he sixth amendment rights to confrontation and to compulsory process are made applicable to state prosecutions through the due

process clause of the fourteenth amendment.’’ (Internal quotation marks
omitted.) State v. Holley, 327 Conn. 576, 593, 175 A.3d 514 (2018).

2 The defendant also argues that the state cannot prove that the admission

of the ballistics report was harmless beyond a reasonable doubt because it

tied the state’s case together and bolstered the credibility of otherwise

unreliable eyewitnesses. Because we conclude that the defendant’s claim

fails under the third prong of State v. Golding, 213 Conn. 233, 240, 567 A.2d

823 (1989), as a result of defense counsel’s express waiver, we do not reach

the issue of whether the admission of the report constituted harmless error.

3 The constitution of Connecticut, article first, § 8, as amended by articles

seventeen and twenty-nine of the amendments, provides in relevant part:

‘‘In all criminal prosecutions, the accused shall have a right . . . to be

confronted by the witnesses against him . . . .’’

4

In addition to the murder charge, the state initially charged the defendant

with reckless endangerment in the first degree in violation of General Statutes § 53a-63, unlawful discharge of a firearm in violation of General Statutes

§ 53-203, and carrying a pistol without a permit in violation of General

Statutes § 29-35. The state later chose not to pursue those additional charges

and filed a substitute information limited to the murder charge.

5 According to Rainone’s testimony, the procedure of the state forensic

science laboratory is that, after the examiner completes his or her report,

it is peer-reviewed by another individual for accuracy. Both the examiner

and the individual who conducted the peer-review sign the report.

6 Specifically, the prosecutor stated: ‘‘But this bullet would have come

from a revolver,’’ and Rainone responded, ‘‘[c]orrect, from what he’s saying—

yeah—well—yes, correct, from what he’s saying.’’

7

In Bullcoming v. New Mexico, 564 U.S. 647, 652, 131 S. Ct. 2705, 180 L.

Ed. 2d 610 (2011), the United States Supreme Court held that the confrontation clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial statement by an analyst, certifying the

results of a test he performed, through the in-court testimony of another

scientist who did not sign the certification or perform or observe the test

reported in the certification. The accused has the right ‘‘to be confronted

with the analyst who made the certification, unless that analyst is unavailable

at trial, and the accused had an opportunity, pretrial, to cross-examine that

particular scientist.’’ Id. Moreover, as our Supreme Court stated in State v.

Walker, 332 Conn. 678, 212 A.3d 1244 (2019), ‘‘where the testifying expert

explicitly refers to, relies on, or vouches for the accuracy of the other expert’s

findings, the testifying expert has introduced out-of-court statements that,

if offered for their truth and are testimonial in nature, are subject to the

confrontation clause. . . . [E]xpert witnesses cannot be used as conduits

for the admission into evidence of the testimonial statements of others.’’

(Citations omitted.) Id., 694–95.

8

‘‘The fundamental rights that a defendant personally must waive typically

are identified as the rights to plead guilty, waive a jury, testify in his or her

own behalf, and take an appeal.’’ State v. Gore, 288 Conn. 770, 779 n.9, 955

A.2d 1 (2008).

9 To the extent that the state claims that a habeas proceeding is the only

forum to address a claim of ineffective assistance of counsel, we do not

agree. There are some instances in which an ineffective assistance of counsel

claim may be pursued on direct appeal. In State v. Crespo, 246 Conn. 665,

718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L.

Ed. 2d 909 (1999), our Supreme Court explained that, ‘‘[a]lmost without

exception, we have required that a claim of ineffective assistance of counsel

must be raised by way of habeas corpus, rather than by direct appeal,

because of the need for a full evidentiary record for such [a] claim. . . .

On the rare occasions that we have addressed an ineffective assistance of

counsel claim on direct appeal, we have limited our review to allegations

that the defendant’s sixth amendment rights had been jeopardized by the

actions of the trial court, rather than by those of counsel. . . . We have

addressed such claims, moreover, only where the record of the trial court’s

allegedly improper action was adequate for review or the issue presented was

a question of law, not one of fact requiring further evidentiary development.’’

(Citations omitted; emphasis in original; internal quotation marks omitted.)

Id., 687–88.

Additionally, in State v. Polynice, 164 Conn. App. 390, 133 A.3d 952, cert.

denied, 321 Conn. 914, 136 A.3d 1274 (2016), this court acknowledged that

‘‘[a] claim of ineffective assistance of counsel is generally made pursuant

to a petition for a writ of habeas corpus rather than in a direct appeal. . . .

Section 39-27 of the Practice Book, however, provides an exception to that

general rule when ineffective assistance of counsel results in a guilty plea.’’
(Internal quotation marks omitted.) Id., 397.

10 We note that, in the present case, defense counsel may not have fully

articulated all of his reasons for the waiver, and the trial court risks interfering with the defendant’s right to counsel and the attorney-client relationship

if the court asks counsel, during trial, for a full explanation of his strategy.

11 In drawing that inference, the court noted that the fact that defense

counsel used the recording containing the hearsay statement to the defendant’s benefit—referring to it during cross-examination of a state’s witness

and in closing argument—indicates that she was following a sound or prudent trial strategy when she consented to its admission. See State v. Rivera,

supra, 129 Conn. App. 634–35. Under Connecticut’s implied waiver jurisprudence, it is appropriate for a court to consider ‘‘the particular facts and

circumstances surrounding [the] case, including the . . . conduct of the

[person waiving the right] . . . .’’ (Internal quotation marks omitted.) State

v. Kitchens, supra, 299 Conn. 484; id. (‘‘[i]t . . . is well established that any

such inference [of waiver] must be based on a course of conduct’’).

12 For the latter proposition, the court in Bellamy cited United States v.

Cooper, 243 F.3d 411, 416 (7th Cir.), cert. denied, 534 U.S. 825, 122 S. Ct.

64, 151 L. Ed. 2d 31 (2001), which is one of the cases this court cited in

Rivera to support its conclusion that the federal waiver standard should be

applied. See State v. Rivera, supra, 129 Conn. App. 632–35. Cooper involved

a claim by the defendant that his sixth amendment right to confrontation

was violated by the government’s repeated references to the substance of

an anonymous tip. See United States v. Cooper, supra, 415. In resolving the

claim, the court adopted the standard used by the majority of federal Circuit

Courts of Appeals at that time, namely, ‘‘a defendant’s attorney can waive

his client’s [s]ixth [a]mendment confrontation right so long as the defendant

does not dissent from his attorney’s decision, and so long as it can be said

that the attorney’s decision was a legitimate trial tactic or part of a prudent

trial strategy.’’ (Internal quotation marks omitted.) Id., 418.