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*********************************************** 
STATE OF CONNECTICUT v. HORVIL F. LEBRICK

(SC 20083)

Robinson, C. J., and Palmer, McDonald, D’Auria, Mullins and Ecker, Js.

Syllabus

Convicted of the crimes of felony murder, home invasion, conspiracy to

commit home invasion, burglary in the first degree, attempt to commit

robbery in the first degree, and assault in the first degree in connection

with the shooting deaths of the victim and two of the defendant’s accomplices, A and M, the defendant appealed to the Appellate Court, claiming,

inter alia, that the trial court had violated his constitutional right to

confrontation when it admitted into evidence the former testimony of

a purportedly unavailable witness, P, and the testimony of the state’s

expert witness, S, about ballistic evidence. Pursuant to a court order, P

reluctantly testified at the defendant’s probable cause hearing. P testified

that she had met with the defendant in Brooklyn, New York, on the day

after the shootings in question and that the defendant confessed that

he had gone to East Hartford with A and M intending to rob B, a drug

dealer. According to P, the defendant stated that he had kicked open

the door to B’s apartment and encountered the victim, who was armed

with a gun. The defendant disarmed the victim and proceeded to another

room of the apartment, from where he heard several gunshots and the

shooter ask the victim how many people remained in the apartment. P

further testified that the defendant had told her that he then used the

gun he had taken from the victim to shoot his way out of the apartment

and past the bodies of A and M, both of whom apparently had been

shot. The state could not locate P before the defendant’s trial and sought

to admit her former testimony from the probable cause hearing pursuant

to the provision (§ 8-6 [1]) of the Connecticut Code of Evidence allowing

for the admission at a subsequent trial of an unavailable witness’ prior

testimony. The defendant moved to suppress P’s former testimony on

the ground that the state had failed to establish P’s unavailability insofar

as it had not made diligent and good faith efforts to procure her attendance at trial. The court held a hearing on the motion at which an

inspector for the state’s attorney’s office, H, testified about his efforts

to locate P. H testified that he first conducted electronic searches in

the Hartford Police Department’s in-house computer database and the

National Crime Information Center (NCIC) database, a national repository of criminal records, but that those searches yielded no results. He

then used CLEAR, a subscription based search engine that aggregates

publicly available data, which revealed two addresses for P and one

address for P’s mother, all of which were in New York, as well as several

phone numbers for P, none of which was in service or receiving calls.

H forwarded the addresses to the Kings County District Attorney’s Office

in Brooklyn, and an investigator in that office, G, was assigned to serve

an interstate summons on P. Over two days, G visited one of P’s

addresses on three occasions and P’s other address and her mother’s

address one time each, but no one was home on any of those occasions.

The trial court denied the defendant’s motion to suppress P’s former

testimony, concluding that the state’s efforts to locate P were sufficient

to establish her unavailability under both § 8-6 (1) of the Connecticut

Code of Evidence and the confrontation clause of the federal constitution. The defendant also moved to suppress S’s expert testimony about

ballistic evidence, arguing that its admission would violate his right to

confrontation because it was based on a ballistic report, which the

defendant claimed contained testimonial hearsay, prepared by a former

employee of the state forensic laboratory who had examined the ballistic

evidence recovered from the crime scene but who was unavailable to

testify because he died before the defendant’s trial. The trial court denied

the defendant’s motion to suppress S’s testimony, agreeing with the

state that there was no confrontation clause issue because S had formed

his own independent conclusions after reviewing the former employee’s

report and photographs, and the defendant could cross-examine S at

trial. S ultimately testified, and the state emphasized during its closing
argument that the ballistic evidence indicated that the bullet that killed

the victim came from the gun used by the defendant. The Appellate

Court affirmed the judgment of the trial court, concluding, inter alia,

that the defendant’s right to confrontation was not violated by the admission of P’s former testimony. On the granting of certification, the defendant appealed to this court. Held:

1. The Appellate Court incorrectly concluded that the admission of P’s

former testimony did not violate the defendant’s right to confrontation,

the state having failed to establish that it undertook a reasonable, diligent, and good faith effort to procure P’s attendance at the defendant’s

trial: this court, having concluded that the issue of whether a witness

is unavailable for purposes of the confrontation clause presents a mixed

question of law and fact subject to plenary review, employed four objective criteria for determining the reasonableness of the state’s efforts to

demonstrate the unavailability of a witness, including the importance

of the witness to the state’s case, the seriousness of the crimes for

which the defendant was tried, whether the witness had reason to favor

the prosecution, and whether the state made the same sort of effort to

procure the witness for trial that it would have made if it did not have

the witness’ prior testimony available; in the present case, although the

record did not reflect that P received any consideration for her testimony, such as an immunity arrangement, the other three criteria weighed

in favor of the defendant because the defendant was charged with

extremely serious crimes, P’s testimony was critical to the state’s case

as she provided crucial, inculpatory testimony regarding the defendant’s

role in the commission of the crimes that directly contradicted the

defendant’s own statements about his version of the events and that

was not provided by any other witness, namely, that the defendant had

confessed that he had gone to the apartment intending to commit a

robbery, he was armed with a gun that he had taken from the victim,

and he had used that gun to shoot his way out of the apartment, and,

in light of the crucial nature of P’s testimony, the serious nature of the

crimes, and the state’s knowledge that P was a reluctant witness who

had been compelled to testify at the probable cause hearing by court

order, this court could not conclude that the state’s efforts to locate P

were as vigorous as they would have been if the state did not have her

former testimony to rely on, as H conducted electronic searches for P

in only three content limited databases, the usefulness of his searches

in two of those databases was of questionable value in light of H’s

knowledge that P was a New York resident with no known criminal

record, H’s search in the third database was limited to only basic location

information, H did not search any New York governmental databases

for P’s motor vehicle, social service, housing court, family court, or

child support records, H did not conduct any routine Internet searches

on Google or social media sites, once H had forwarded the three

addresses he found for P to G, he never spoke to or requested that G,

who visited the addresses associated with P only during normal business

hours, make any additional efforts to locate her by returning to the

addresses at other times of day, speaking with neighbors or landlords,

or conducting surveillance, and, after G failed to locate P at any of the

three addresses that H had provided, the state made no further efforts

to locate her.

2. The admission of S’s expert testimony did not violate the defendant’s sixth

amendment right to confrontation because, even if it was predicated in

part on testimonial hearsay purportedly contained in a ballistic report

prepared by a former employee of the state forensics laboratory and

photographs that S had reviewed, such hearsay was not admitted into

evidence or otherwise introduced to the jury for the truth of the matter

asserted; although the jury had been informed that S had reviewed

certain reports and photographs in preparation of his testimony, neither

those materials nor the out-of-court statements that they contained were

admitted into evidence as an exhibit or through the conduit of S’s incourt testimony, the jury was not informed of the nature of the reports,

who had prepared them, or whether S’s opinions were consistent with

those contained in the reports, and the trial court sustained the defendant’s objection when the state attempted to question S as to which

materials he had reviewed and ruled that S’s testimony must be limited

to S’s own conclusions; accordingly, this court concluded that S applied

his training and experience to reach an independent judgment about

the ballistic evidence, the basis of which could be tested through cross-
examination at the defendant’s trial, and that S did not merely transmit

the testimonial hearsay purportedly contained in the ballistic report

prepared and photographs generated by the former employee of the

state forensics laboratory.

(Two justices concurring in part and dissenting in part in one opinion)

Argued January 23, 2019—officially released January 28, 2020

Procedural History

Substitute information charging the defendant with

the crimes of felony murder, home invasion, conspiracy

to commit home invasion, burglary in the first degree,

conspiracy to commit burglary in the first degree,

attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree, and assault

in the first degree, brought to the Superior Court in the

judicial district of Hartford, and tried to the jury before

Dewey, J.; subsequently, the court denied the defendant’s motions to preclude certain evidence; verdict of

guilty; thereafter, the court vacated the jury’s finding

of guilty as to conspiracy to commit burglary in the

first degree and conspiracy to commit robbery in the

first degree and rendered judgment thereon, from which

the defendant appealed to the Appellate Court, Alvord,

Prescott and Pellegrino, Js., which affirmed the judgment of the trial court, and the defendant, on the granting of certification, appealed to this court. Reversed;

new trial.

Raymond L. Durelli, assigned counsel, for the appellant (defendant).

Kathryn W. Bare, assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, John F. Fahey and Robert Diaz, senior assistant

state’s attorneys, and Allen M. Even, certified legal

intern, for the appellee (state).
Opinion

ECKER, J. The defendant, Horvil F. Lebrick, claims in

this certified appeal that the Appellate Court improperly

affirmed his judgment of conviction because the trial

testimony of two witnesses should have been excluded

from evidence under the Connecticut Code of Evidence

and the confrontation clause of the sixth amendment

to the United States constitution.1 Specifically, the

defendant contends that (1) the state failed to establish

adequately that a nonappearing witness named Keisha

Parks was unavailable to testify at trial, and, therefore,

her former testimony improperly was admitted under

§ 8-6 (1) of the Connecticut Code of Evidence2 and

in violation of the confrontation clause, and (2) the

testimony of James Stephenson, the state’s expert witness on firearm and tool mark identification, was predicated on inadmissible hearsay and, therefore, improperly was admitted in violation of the confrontation

clause. We agree with the defendant that the admission

of Parks’ former testimony violated his constitutional

right of confrontation, but we disagree that the admission of Stephenson’s testimony was unconstitutional.

We therefore reverse the judgment of the Appellate

Court and remand the case for a new trial.

The jury reasonably could have found the following

facts. During the early morning hours of May 6, 2010,

the defendant and his cousins, twin brothers Andrew

and Andraw Moses, traveled from New York to East

Hartford in a Ford Econoline van driven by a fourth,

unidentified man. At approximately 8 a.m., the van

arrived at an apartment complex located at 115 Nutmeg

Avenue, where a purported drug dealer, Omari Barrett,

rented an apartment on the third floor. The plan was

to rob Barrett of money and/or drugs. In order to gain

entry into the apartment, the Moses twins dressed as

workmen and armed themselves with guns. The defendant accompanied the Moses twins to Barrett’s apartment, where they knocked on the door multiple times.

When no one answered, the defendant kicked the door

open, and the three men entered the apartment.

The victim, Shawna Lee Hudson, was alone in the

apartment at the time. The victim telephoned Barrett

when the three men initially knocked on the door, and

Barrett informed her that he had not requested any

maintenance at the apartment. Shortly thereafter, the

victim called Barrett a second time and told him that

the three men were ‘‘breaking down the door to get in

the apartment.’’ Barrett informed the victim that he was

on his way and instructed her to arm herself with a

.357 magnum revolver located inside the apartment.

Soon thereafter, the victim called Barrett a third time

and whispered to him that the men were inside the

apartment and that she was hiding in a closet. At this

point, Barrett had arrived at the apartment complex

and was on his way up to the third floor. Barrett could
hear a voice in the background on the open phone line

of someone saying, ‘‘ ‘[w]here’s the money? Shut the

fuck up,’ ’’ and then the phone line went dead.

Barrett, who was armed with a nine millimeter

revolver, arrived outside the apartment and noticed that

the door was ajar and looked ‘‘like somebody [had]

kicked it in . . . .’’ After entering the apartment, Barrett encountered the Moses twins, whom he fatally shot.

Barrett then called out to the victim to ask how many

people were left in the apartment, and she responded

that there was one more. Barrett and the defendant

then exchanged gunfire, and Barrett was shot twice—

once in the leg and once in the arm. Barrett retreated

from the apartment to an alcove down the hallway by

the elevators. He then heard a single gunshot and saw

someone exit the apartment and flee in the opposite

direction down the hallway. Barrett returned to the

apartment, where he found the victim, who had been

shot fatally once in the chest. Additional facts will be

set forth as necessary.

Following a jury trial, the defendant was convicted

of felony murder in violation of General Statutes (Rev.

to 2009) § 53a-54c, home invasion in violation of General

Statutes §§ 53a-8 (a) and 53a-100aa (a) (2), conspiracy

to commit home invasion in violation of General Statutes §§ 53a-48 (a) and 53a-100aa (a) (2), burglary in the

first degree in violation of General Statutes §§ 53a-8 (a)

and 53a-101 (a) (1), attempt to commit robbery in the

first degree in violation of General Statutes §§ 53a-49

(a) (2) and 53a-134 (a) (2), and assault in the first degree

in violation of General Statutes §§ 53a-8 (a) and 53a-59

(a) (5).3 The trial court sentenced the defendant to a

total effective sentence of ninety years of imprisonment.

The Appellate Court affirmed the defendant’s judgment of conviction. See State v. Lebrick, 179 Conn. App.

221, 246, 178 A.3d 1064 (2018). As relevant to the issues

before us, the Appellate Court determined that the trial

court had not abused its discretion in admitting the

former testimony of Parks, a witness who did not

appear at trial but who reluctantly testified at the defendant’s probable cause hearing, because the state had

made a diligent and good faith effort to secure her

attendance at the defendant’s trial. Id., 229–36. The

Appellate Court held, for this reason, that Parks’ former

testimony was admissible under both § 8-6 (1) of the

Connecticut Code of Evidence and the confrontation

clause. Id., 233, 236. The Appellate Court also determined that the admission of Stephenson’s expert testimony did not violate the defendant’s sixth amendment

right of confrontation because, even if Stephenson had

relied on testimonial hearsay in formulating his expert

opinion, he was ‘‘fully available for cross-examination

at trial regarding his own scientific conclusions and the

factual basis underpinning his opinion.’’4

Id., 245. This
certified appeal followed.5

I

The defendant’s first claim of error involves the

admissibility of the former testimony of Parks, who was

Andrew Moses’ fiance ́e at the time of the underlying

events. The following additional facts and procedural

history are relevant to our review of this claim.

After hearing a rumor on May 6, 2010, that the Moses

twins had been killed in Connecticut, Parks contacted

the East Hartford Police Department to find out if the

rumor was true. Two days later, Parks provided the

East Hartford police with a written statement, and, after

the defendant’s arrest, she reluctantly testified at his

probable cause hearing pursuant to a court order.

Parks testified to the following facts at the defendant’s probable cause hearing. On the evening of May

5, 2010, Parks observed the Moses twins enter the defendant’s Ford Econoline van in Brooklyn.6 The next day,

after learning that the twins had been killed, Parks and

Andraw Moses’ wife spent several hours searching for

the defendant. The defendant finally contacted Parks

and Andraw Moses’ wife, and they then met the defendant in Brooklyn. The defendant explained at the meeting that he had traveled to Connecticut with the twins

and the unidentified driver of the van to commit a robbery. After knocking on an apartment door and receiving no answer, the defendant kicked the door open

and found a girl inside the apartment with a gun. The

defendant grabbed the gun from the girl and made his

way to another room of the apartment. The defendant

heard gunshots while he was in the other room, and one

of the Moses twins went to investigate. The defendant

heard another shot, and the other twin followed his

brother to investigate. The defendant then heard

another shot, followed by the shooter’s asking the girl

how many people were left in the apartment. The defendant proceeded to shoot his way out of the apartment

using the gun he had taken from the girl, observing the

twins’ bodies lying on the floor as he left. He then exited

the building, told the driver of the van that the twins

were dead, and fled to New York.

In late August or early September of 2014,7 around

the time that jury selection in the defendant’s trial commenced, the state began to search for Parks in order

to secure her in-court testimony at the defendant’s

trial. Emory L. Hightower, a police inspector with the

state’s criminal justice division in the Hartford state’s

attorney’s office, first attempted to contact Parks at

her last known address and phone number. When that

effort proved unsuccessful, Hightower conducted an

electronic search for Parks in the Hartford Police

Department’s local in-house computer database. The

search yielded no results. Hightower next searched

the National Crime Information Center (NCIC) data-
base, a national database administered by the Federal

Bureau of Investigation and utilized by law enforcement

to search for an individual’s prior criminal records.

After discovering no criminal record for Parks in the

NCIC database, Hightower used a search engine called

CLEAR, operated by the Thomson Reuters Corporation,

which aggregates publicly available data. Through the

CLEAR search, Hightower obtained two addresses for

Parks in New York and several phone numbers. Hightower called the phone numbers, but two were not in

service, and one was not receiving phone calls.

An interstate summons was prepared to compel

Parks’ attendance at the defendant’s trial. Hightower

e-mailed the interstate summons to the Kings County

District Attorney’s Office and requested service on

Parks. The same e-mail included a memorandum containing the addresses and phone numbers that Hightower had found in the CLEAR system for Parks.

Hightower also provided the Kings County District

Attorney’s Office with the last known address of Parks’

mother, who lived in Brooklyn, New York.

Frank Garguilo, an investigator with the Kings County

District Attorney’s Office, was assigned the task of serving the interstate summons on Parks. Garguilo was not

asked to conduct an independent investigation to ascertain Parks’ whereabouts and did not do so. Over the

course of two days, September 25 and 26, 2014, Garguilo

visited each of the addresses associated with Parks.

At approximately 12:30 p.m. on September 25, 2014,

Garguilo visited the first address that Hightower had

provided him for Parks in Brooklyn. After being let into

the building by a neighbor, he knocked on the door

of the apartment believed to belong to Parks, but he

received no answer. Garguilo then called one of the

phone numbers associated with Parks, but the greeting

on the voicemail indicated that the phone number

belonged to an individual named Miriam Augustine.

Garguilo left a message asking Augustine to return his

call but never received a response. Garguilo then traveled to the last known address of Parks’ mother, also

in Brooklyn, but no one was home. Garguilo returned

to Parks’ Brooklyn address for a second time at approximately 5 p.m., but again no one was home. The next

morning, September 26, 2014, Garguilo made a third

and final visit to Parks’ Brooklyn address. When he was

unsuccessful, he traveled to the last address for Parks

that Hightower had provided, in the Jamaica neighborhood of Queens. No one was home at that location,

either. Garguilo did not encounter anyone, at any of

the addresses, whom he could question regarding

Parks’ whereabouts.

At the defendant’s trial, the state sought to admit

Parks’ former testimony from the probable cause hearing pursuant to § 8-6 (1) of the Connecticut Code of

Evidence, which permits the admission of ‘‘[t]estimony
given as a witness at another hearing of the same or a

different proceeding’’ if ‘‘the declarant is unavailable as

a witness . . . .’’ The defendant moved to exclude

Parks’ former testimony, contending that the state had

failed to establish Parks’ unavailability under § 8-6 (1)

because it had not ‘‘exercised due diligence and made

a good faith effort to procure [her] attendance’’ at trial.

The defendant further claimed that the admission of

Parks’ former testimony would violate his sixth amendment right of confrontation pursuant to Crawford v.

Washington, 541 U.S. 36, 68–69, 124 S. Ct. 1354, 158 L.

Ed. 2d 177 (2004).

The trial court conducted a hearing on the defendant’s motion to exclude Parks’ former testimony, at

which it heard the testimony of Hightower and Garguilo,

as previously described, regarding their efforts to locate

Parks. The trial court also heard testimony from Erin

Tiernam, a CLEAR product specialist employed by the

Thomson Reuters Corporation, regarding how CLEAR

operates and the information available through it. Tiernam explained that CLEAR offers different subscription

levels. The ‘‘basic subscription’’ includes ‘‘location services,’’ such as credit headers and utility hookups,

whereas the ‘‘second level includes the more detailed

reports like . . . lawsuits, liens, judgments, [and] criminal records.’’ There is also an additional option to add

‘‘a web analytic search,’’ which aggregates social media

data, such as ‘‘Facebook pages, LinkedIn pages, and

also just somebody’s general presence on the web.’’

Tiernam did not know what subscription level Hightower had used to search for information about Parks.

Defense counsel argued that the state’s efforts to

procure Parks’ in-court testimony were insufficient to

meet the evidentiary and constitutional unavailability

standard because the state had failed to search (1)

social media websites, such as Facebook, (2) New York

State Department of Motor Vehicles records, (3) New

York State Department of Corrections and Community

Supervision records, (4) housing and/or eviction

records, (5) Social Security Administration records, (6)

Immigration and Naturalization Service records, (7)

records of protective orders or child support orders,

and (8) for Parks’ relatives, friends, and/or landlords,

who might be aware of her whereabouts. The trial court

disagreed, implicitly finding that the state’s efforts to

locate Parks were sufficient to establish her unavailability under both our rules of evidence and the confrontation clause of the sixth amendment.8 Parks’ former testimony was read to the jury. On appeal, the defendant

contends that Parks’ former testimony improperly was

admitted in violation of § 8-6 (1) of the Connecticut

Code of Evidence and the confrontation clause of the

sixth amendment, both of which require the state to

make a reasonable, diligent, and good faith effort to

secure the in-court testimony of an unavailable declarant before the declarant’s former testimony is admitted.
A

As a preliminary matter, we address the standard of

review applicable to the defendant’s evidentiary and

constitutional claims. We previously have observed in

general terms that ‘‘[t]he trial court has broad discretion

in determining whether the proponent has shown a

declarant to be unavailable. A trial court’s determination of the unavailability of a witness will be overturned

only if there has been a clear abuse of discretion.’’ State

v. Lapointe, 237 Conn. 694, 738, 678 A.2d 942, cert.

denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378

(1996); accord State v. Rivera, 221 Conn. 58, 62, 602

A.2d 571 (1992). We explained that this deferential standard of review is appropriate ‘‘[i]n light of the [fact

bound] nature of the [unavailability] inquiry . . . .’’

State v. Schiappa, 248 Conn. 132, 141, 728 A.2d 466,

cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d

129 (1999); see id., 145–58 (examining unavailability

under statements against penal interest exception to

hearsay rule); see also State v. Wright, 107 Conn. App.

85, 89, 943 A.2d 1159 (holding that, under § 8-6 [1], ‘‘the

court’s assessment of whether the actions of the state

in attempting to find the witness properly could be

characterized as having been undertaken with due diligence involve[s] a ‘judgment call’ by the court’’ properly

reviewed under ‘‘the abuse of discretion standard’’),

cert. denied, 287 Conn. 914, 950 A.2d 1291 (2008). It

is clear that the abuse of discretion standard applies

specifically to a trial court’s determination that a witness is ‘‘unavailable’’ to testify under § 8-6 (1) of the

Connecticut Code of Evidence. See, e.g., State v. Morquecho, 138 Conn. App. 841, 859 n.8, 54 A.3d 609

(reviewing defendant’s challenge to admission of evidence under § 8-6 [1] for abuse of discretion but noting

that ‘‘[t]he defendant does not raise a Crawford claim

and did not advance arguments of that nature before

the trial court’’), cert. denied, 307 Conn. 941, 56 A.3d

948 (2012); State v. Wright, supra, 87–88 (rejecting

defendant’s claim that reviewing court ‘‘should employ

a plenary standard of review’’ but noting that defendant

only raised evidentiary claim and did ‘‘not rais[e] a

Crawford confrontation clause issue’’).

It is less clear whether this deferential standard of

review applies with respect to a defendant’s confrontation clause claim challenging the admissibility of out-ofcourt statements of an allegedly unavailable declarant

pursuant to Crawford v. Washington, supra, 541 U.S.

36. In our view, the abuse of discretion standard is at

odds with the axiomatic principle that ‘‘question[s] of

constitutional law . . . [are] subject to plenary

review.’’ State v. Kirby, 280 Conn. 361, 378, 908 A.2d

506 (2006); see also State v. Simpson, 286 Conn. 634,

651, 945 A.2d 449 (2008) (‘‘we exercise plenary review

over whether the trial court properly concluded that

the admission of the videotapes did not violate the
defendant’s confrontation clause rights under Crawford’’). We therefore take this opportunity to clarify the

appropriate standard of review governing such claims.

Consistent with the case law of the United States

Circuit Courts of Appeals, we conclude that ‘‘[t]he

issues of the unavailability of the witness and the reasonableness of the [s]tate’s efforts to produce the witness [under] the [c]onfrontation [c]lause [of] the [s]ixth

[a]mendment . . . are mixed questions of law and fact

. . . .’’ Hamilton v. Morgan, 474 F.3d 854, 858 (6th

Cir.), cert. denied, 552 U.S. 953, 128 S. Ct. 380, 169 L.

Ed. 2d 268 (2007); see also McCandless v. Vaughn, 172

F.3d 255, 265 (3d Cir. 1999) (‘‘the ultimate issue of

unavailability for purposes of the [c]onfrontation

[c]lause is a mixed question of fact and law’’ [internal

quotation marks omitted]); Martinez v. Sullivan, 881

F.2d 921, 926 (10th Cir. 1989) (noting that ‘‘the ultimate

issue of unavailability for purposes of the [c]onfrontation [c]lause is a mixed question of fact and law’’), cert.

denied sub nom. Martinez v. Tansy, 493 U.S. 1029, 110

S. Ct. 740, 107 L. Ed. 2d 758 (1990); Burns v. Clusen, 798

F.2d 931, 942 (7th Cir. 1986) (holding that unavailability

under confrontation clause is ‘‘a mixed question of law

and fact’’).9 As the United States Court of Appeals for

the Seventh Circuit has explained, a ‘‘finding of ‘unavailability’ . . . has more resemblance to a ‘mixed’ determination rather than a straight finding of fact. The issue

takes on a constitutional dimension of its own when

analyzed in the context of the [c]onfrontation [c]lause,

as opposed to simply in the context of [the state’s]

hearsay rules. A determination [of] ‘unavailability’ goes

beyond assessments of credibility and demeanor’’ and

‘‘necessarily includes the ultimate legal issue at stake.’’

Burns v. Clusen, supra, 941. Accordingly, a trial court’s

subordinate factual findings regarding the unavailability

of a witness ‘‘will not be disturbed unless clearly erroneous and the trial court’s legal conclusion regarding the

applicability of the [law] in light of these facts will be

reviewed de novo.’’ (Internal quotation marks omitted.)

State v. DeMarco, 311 Conn. 510, 518–19, 88 A.3d 491

(2014); see also State v. Marquez, 291 Conn. 122, 136,

967 A.2d 56 (relying on ‘‘federal precedent and the

approach taken by our sister states’’ to conclude that

‘‘the ultimate question as to the constitutionality of . . .

pretrial identification procedures . . . is a mixed question of law and fact’’ [internal quotation marks omitted]), cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L.

Ed. 2d 163 (2009).

‘‘[W]hen a question of fact is essential to the outcome

of a particular legal determination that implicates a

defendant’s constitutional rights, and the credibility of

witnesses is not the primary issue, our customary deference to the trial court’s factual findings is tempered by

a scrupulous examination of the record to ascertain

that the trial court’s factual findings are supported by

substantial evidence. . . . [W]here the legal conclu-
sions of the court are challenged, [our review is plenary,

and] we must determine whether they are legally and

logically correct and whether they find support in the

facts set out in the memorandum of decision . . . .’’

(Internal quotation marks omitted.) State v. DeMarco,

supra, 311 Conn. 519. Although ‘‘we are bound to accept

the factual findings of the trial court unless they are

clearly erroneous’’; State v. Mangual, 311 Conn. 182,

197, 85 A.3d 627 (2014); the ultimate determination of

whether a witness is ‘‘unavailable’’ for purposes of the

confrontation clause is reviewed de novo. See id.

B

The defendant claims that Parks’ former testimony

improperly was admitted because the state failed to

demonstrate that Parks was unavailable within the

meaning of our rules of evidence and the confrontation

clause of the sixth amendment. To determine whether

a witness is unavailable for purposes of § 8-6 (1) of the

Connecticut Code of Evidence, ‘‘this court follows the

definition of the term ‘unavailable’ in rule 804 (a) of

the Federal Rules of Evidence.’’ Maio v. New Haven,

326 Conn. 708, 726, 167 A.3d 338 (2017). Under rule 804

(a), ‘‘[a] declarant is considered to be unavailable as a

witness’’ for the purpose of admitting former testimony

‘‘if the declarant . . . is absent from the trial or hearing

and the statement’s proponent has not been able, by

process or other reasonable means, to procure . . .

the declarant’s attendance . . . .’’ Fed. R. Evid. 804 (a)

(5) (A). ‘‘In interpreting reasonable means, we have

held that the proponent must exercise due diligence

and, at a minimum, make a good faith effort to procure

the declarant’s attendance.’’ (Internal quotation marks

omitted.) State v. Rivera, supra, 221 Conn. 62.

Similarly, under the confrontation clause of the sixth

amendment, a witness is not unavailable ‘‘ ‘unless the

prosecutorial authorities have made a [good faith] effort

to obtain his presence at trial.’ ’’ Hardy v. Cross, 565

U.S. 65, 69, 132 S. Ct. 490, 181 L. Ed. 2d 468 (2011),

quoting Barber v. Page, 390 U.S. 719, 725, 88 S. Ct. 1318,

20 L. Ed. 2d 255 (1968). ‘‘ ‘The lengths to which the

prosecution must go to produce a witness . . . is a

question of reasonableness.’ ’’ Hardy v. Cross, supra,

70, quoting Ohio v. Roberts, 448 U.S. 56, 74, 100 S. Ct.

2531, 65 L. Ed. 2d 597 (1980), overruled on other grounds

by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,

158 L. Ed. 2d 177 (2004). To demonstrate reasonableness, ‘‘the proponent must exercise due diligence and,

at a minimum, make a good faith effort to procure

the declarant’s attendance.’’ (Internal quotation marks

omitted.) State v. Rivera, supra, 221 Conn. 62.

Former testimony therefore is inadmissible under

both our rules of evidence and the confrontation clause

unless the state has made a reasonable, diligent, and

good faith effort to procure the absent witness’ attendance at trial. ‘‘This showing necessarily requires sub-
stantial diligence. In determining whether the proponent of the declaration has satisfied this burden of

making reasonable efforts, the court must consider

what steps were taken to secure the presence of the

witness and the timing of efforts to procure the declarant’s attendance.’’ State v. Lopez, 239 Conn. 56, 75, 681

A.2d 950 (1996). ‘‘A proponent’s burden is to demonstrate a diligent and reasonable effort, not to do everything conceivable, to secure the witness’ presence.’’ Id.,

77–78. Indeed, it is always possible, in hindsight, to

think of some ‘‘additional steps that the prosecution

might have taken to secure the witness’ presence,’’ but

the ‘‘[s]ixth [a]mendment does not require the prosecution to exhaust every avenue of inquiry, no matter how

unpromising.’’ Hardy v. Cross, supra, 565 U.S. 71–72;

see also Ohio v. Roberts, supra, 448 U.S. 74 (‘‘The law

does not require the doing of a futile act. Thus, if no

possibility of procuring the witness exists [as, for example, the witness’ intervening death], ‘good faith’

demands nothing of the prosecution.’’); State v. Rivera,

supra, 221 Conn. 67 (‘‘the question of whether an effort

to locate a missing witness has been sufficiently diligent

to declare that person unavailable is one that is inherently fact specific and always vulnerable to criticism,

due to the fact that [o]ne, in hindsight, may always

think of other things’’ [internal quotation marks omitted]). ‘‘But if there is a possibility, albeit remote, that

affirmative measures might produce the declarant, the

obligation of good faith may demand their effectuation.’’ (Emphasis in original.) Ohio v. Roberts, supra, 74.

C

Turning to the merits of the defendant’s claim, we

focus our analysis on the confrontation clause because

the definition of unavailability is the same under both

our rules of evidence and the confrontation clause, but

the ultimate determination of whether the state’s efforts

are constitutionally sufficient to establish the unavailability of the witness is a question of law reviewed de

novo.10 See part I A of this opinion; see also State v.

Cameron M., 307 Conn. 504, 516 n.16, 55 A.3d 272 (2012)

(recognizing our ‘‘general practice of not addressing

constitutional questions unless their resolution is

unavoidable’’ but nonetheless focusing analysis on confrontation clause because determination of unavailability under our rules of evidence and confrontation clause

‘‘is analytically identical’’ [internal quotation marks

omitted]), cert. denied, 569 U.S. 1005, 133 S. Ct. 2744,

186 L. Ed. 2d 194 (2013); United States v. Tirado-Tirado,

563 F.3d 117, 123 n.4 (5th Cir. 2009) (‘‘[t]his [c]ourt

treats the [c]onfrontation [c]lause unavailability inquiry

as identical to the unavailability inquiry under [r]ule

804 [a] [5] of the Federal Rules of Evidence’’).

‘‘The central concern of the [c]onfrontation [c]lause

is to ensure the reliability of the evidence against a

criminal defendant by subjecting it to rigorous testing
in the context of an adversary proceeding before the

trier of fact.’’ Maryland v. Craig, 497 U.S. 836, 845,

110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990). The right of

confrontation includes (1) the physical presence of the

witness, (2) the administration of an oath to impress

upon the witness ‘‘the seriousness of the matter’’ and

to guard ‘‘against the lie by the possibility of a penalty

for perjury,’’ (3) cross-examination of the witness to

aid in ‘‘the discovery of truth,’’ and (4) the opportunity

for the jury ‘‘to observe the demeanor of the witness

in making his statement, thus aiding the jury in assessing

his credibility.’’ (Internal quotation marks omitted.) Id.,

845–46. The former testimony of an absent witness typically was produced under oath at a proceeding at which

the witness was subject to cross-examination, but the

admission of this testimony nonetheless implicates concerns under the confrontation clause because its use

deprives the jury of the opportunity to ‘‘observe closely

the [witness’] demeanor, expressions, and intonations,

and thereby [to] determine the [witness’] credibility.’’

United States v. Smith, 928 F.3d 1215, 1226 (11th Cir.

2019), cert. denied, 88 U.S.L.W. 3225 (U.S. January 13,

2020) (No. 19-361).

‘‘[I]n conformance with the [f]ramers’ preference for

face-to-face accusation, the [s]ixth [a]mendment establishes a rule of necessity. In the usual case (including

cases [in which] prior cross-examination has occurred),

the prosecution must either produce, or demonstrate

the unavailability of, the declarant whose statement it

wishes to use against the defendant.’’ Ohio v. Roberts,

supra, 448 U.S. 65. As we explained in part I B of this

opinion, to demonstrate the unavailability of a witness,

the state must establish that it made a reasonable, diligent, and good faith effort to procure the witness’ attendance at trial. See Hardy v. Cross, supra, 565 U.S. 69

(‘‘a witness is not unavailable for purposes of the . . .

confrontation requirement unless the prosecutorial

authorities have made a [good faith] effort to obtain his

presence at trial’’ [internal quotation marks omitted]);

Ohio v. Roberts, supra, 74 (‘‘[t]he lengths to which the

prosecution must go to produce a witness . . . is a

question of reasonableness,’’ and ‘‘[t]he ultimate question is whether the witness is unavailable despite [good

faith] efforts undertaken prior to trial to locate and

present that witness’’ [internal quotation marks

omitted]).

‘‘[T]here is no [bright line] rule for reasonableness,

and [the] reasonableness inquiry necessarily is [fact

specific] and examines the totality of the factual circumstances of each particular case.’’ United States v. Smith,

supra, 928 F.3d 1228; see also State v. Rivera, supra,

221 Conn. 67 (emphasizing ‘‘fact specific’’ nature of

unavailability inquiry). Although the United States Circuit Courts of Appeals have rejected a ‘‘per se rule’’ or

‘‘categorical approach’’ when it comes to assessing the

reasonableness of efforts to produce a missing witness;
United States v. Burden, 934 F.3d 675, 689 (D.C. Cir.

2019); they have identified four objective criteria to

guide the reasonableness inquiry. ‘‘First, the more crucial the witness, the greater the effort required to secure

his attendance. . . . Second, the more serious the

crime for which the defendant is being tried, the greater

the effort the [state] should put forth to produce the

witness at trial. . . . Third, where a witness has special

reason to favor the prosecution, such as an immunity

arrangement in exchange for cooperation, the defendant’s interest in confronting the witness is stronger.

. . . Fourth, a good measure of reasonableness is to

require the [s]tate to make the same sort of effort to

locate and secure the witness for trial that it would have

made if it did not have the prior testimony available.’’

(Citations omitted.) Cook v. McKune, 323 F.3d 825,

835–36 (10th Cir. 2003); see also McCandless v. Vaughn,

supra, 172 F.3d 266 (‘‘Confrontation [c]lause concerns

are heightened and courts insist on more diligent efforts

by the prosecution where a ‘key’ or ‘crucial’ witness’

testimony is involved. . . . The defendant’s interest in

confrontation is, of course, further heightened where

the absent witness has special reason to give testimony

favorable to the prosecution. . . . Finally, special sensitivity to [c]onfrontation [c]lause concerns is appropriate where the consequences of a conviction based

on the absent witness’ testimony are grave.’’ [Citations

omitted.]); United States v. Quinn, 901 F.2d 522, 529

(6th Cir. 1990) (‘‘[c]onfrontation [c]lause considerations

are especially cogent when the testimony of a witness is

critical to the prosecution’s case against the defendant’’

[internal quotation marks omitted]); United States v.

Lynch, 499 F.2d 1011, 1023 (D.C. Cir. 1974) (government’s duty to search for missing witness ‘‘in good faith

and with reasonable diligence and care’’ ordinarily ‘‘will

require a search equally as vigorous as that which the

government would undertake to find a critical witness

if it has no preliminary hearing testimony to rely [on]

in the event of ‘unavailability’ ’’); Brooks v. United

States, 39 A.3d 873, 884 (D.C. 2012) (‘‘[t]he government’s

obligation to take steps to produce the witness ha[s]

to correspond to the importance of the witness and

the potential prejudice to the defendant if she [does]

not testify’’).

We believe that this approach provides useful guidance and structure, and we will employ these four criteria here to assess whether the state’s efforts to locate

Parks were sufficient to protect the defendant’s sixth

amendment right of confrontation.11 First, as the state

conceded at oral argument before this court,12 Parks

was an important witness who provided key testimony

that was not provided by any other witness, namely,

the defendant’s confession that he kicked in the door

to Barrett’s apartment, took the gun away from the

victim, and shot his way out of the apartment.13 Parks’

testimony directly contradicted the defendant’s state-
ment to the police, in which he admitted that he was

present in the apartment at the time of the shooting

but maintained that he was there to help the Moses

twins ‘‘move some boxes’’ when ‘‘a guy showed up

shooting.’’ The defendant stated to the police that he

did not have a gun and did not know that the Moses

twins were armed with guns before the shooting began.

The defendant explained that he escaped from the

apartment by following behind some other men ‘‘as they

shot their way out of the apartment.’’

Parks’ testimony provided the state with crucial,

inculpatory evidence regarding the defendant’s role in

the commission of the crimes—the defendant’s confession that he intended to commit a robbery, was armed

with a gun, and was one of the shooters. Given that

‘‘[a] defendant’s confession is probably the most probative and damaging evidence that can be admitted against

him’’; (internal quotation marks omitted) Arizona v.

Fulminante, 499 U.S. 279, 292, 111 S. Ct. 1246, 113 L.

Ed. 2d 302 (1991); we conclude that the first factor

weighs in favor of the defendant. See, e.g., State v.

Lockhart, 298 Conn. 537, 597, 4 A.3d 1176 (2010) (‘‘confessions are such powerful forms of evidence’’ [internal

quotation marks omitted]); State v. Iban C., 275 Conn.

624, 645, 881 A.2d 1005 (2005) (‘‘a confession, if sufficiently corroborated, is the most damaging evidence of

guilt’’ [internal quotation marks omitted]).

Turning to the second factor, we note that the defendant was charged with extremely serious crimes—

namely, felony murder, home invasion, conspiracy to

commit home invasion, burglary in the first degree,

attempt to commit robbery in the first degree, and

assault in the first degree—and the penalties he faced

were severe. The charge of felony murder alone carries

a potential sentence of life imprisonment. See State v.

Adams, 308 Conn. 263, 265, 63 A.3d 934 (2013) (holding

that felony murder ‘‘is a class A felony and, therefore,

is punishable by a term of imprisonment of twenty-five

years to life’’). In a case such as this one, ‘‘it is fair to

ask more of the prosecution than in a situation involving

significantly less serious consequences.’’ McCandless

v. Vaughn, supra, 172 F.3d 266. The second factor therefore favors the defendant.

Although the third factor weighs in favor of the state

because the record does not reflect that Parks

‘‘receive[d] any consideration from the government for

her testimony’’; United States v. Smith, supra, 928 F.3d

1242; we conclude that the fourth factor, like the first

two, favors the defendant. Given the crucial nature of

Parks’ testimony and the serious nature of the crimes

charged, we cannot conclude that the state’s efforts to

locate Parks were ‘‘as vigorous’’ as they would have

been ‘‘if it ha[d] no preliminary hearing testimony to

rely [on] in the event of ‘unavailability.’ ’’ United States

v. Lynch, supra, 499 F.2d 1023. The state knew that
Parks was a crucial and reluctant witness whose testimony at the probable cause hearing had to be procured

by court order but nonetheless did not keep apprised

of her whereabouts or begin searching for her until the

end of August or beginning of September, 2014, shortly

before jury selection began. See footnote 7 of this opinion. When Hightower began to try and locate Parks, his

efforts were confined to a computer search of only

three content limited electronic databases, each of

which contained relatively narrow categories of information. Hightower did not use the most basic Google

search engine to locate Parks or even attempt to access

any of the most popular social media sites, such as

Facebook. Although Hightower knew that Parks was a

New York resident, he did not search any New York

state governmental databases to look for routine information, such as motor vehicle, social service, housing

court, family court, or child support records. He did

not use the information in his possession about Parks’

last known addresses to learn whether she owned her

own home or had a landlord who might have knowledge

of her whereabouts. Nor did he ever ask anyone else

to pursue any of these basic avenues of inquiry.

Instead, Hightower conducted his investigation by

searching three content limited databases available on

his work computer. He began with the Hartford Police

Department’s local in-house computer database, which,

unsurprisingly, yielded no results for Parks, a New York

resident. Hightower then turned his attention to two

national computer databases—NCIC and CLEAR. The

first, NCIC, contains only information about individuals

with prior criminal and/or arrest records. There is no

evidence that Parks had such a record, and this particularized search also failed to return any useful information. The second database, CLEAR, contains different

types of information depending on the subscription

level purchased, and, although the subscription levels

beyond ‘‘basic’’ provide access to more robust information, the state failed to present evidence establishing

what subscription level Hightower had used to search

for Parks. The evidence indicates that Hightower’s

search did not encompass ‘‘detailed reports like . . .

lawsuits, liens, [and] judgments’’ or ‘‘social media information.’’14

In the digital age, a vast amount of information is

‘‘[nonterrestrial] and borderless,’’ thus enabling the government ‘‘to do more, and to do it better, faster, and

cheaper than before’’ by conducting searches via computer rather than pounding the pavement to locate

paper records, brick and mortar locations, and flesh

and blood witnesses or informants. L. Donohue, ‘‘The

Fourth Amendment in a Digital World,’’ 71 N.Y.U. Ann.

Surv. Am. L. 553, 554 (2016). A vast amount of information can be accessed in a short amount of time using

minimal physical effort. But this is true only if the proper

electronic resources are used and the operator uses
those resources properly. The efficacy of computer

research necessarily is limited by the contents of the

databases searched. In the present case, Hightower

searched only three computer databases, two of which

were of questionable value in locating a New York resident with no known criminal record, and the third of

which we are compelled to conclude included only

‘‘basic’’ location information, such as credit headers

and utility hookups. See footnote 14 of this opinion.

The on the ground efforts were equally anemic. Once

Hightower acquired two possible addresses for Parks

and one for her mother, he forwarded those addresses

to Garguilo for service of the interstate summons. Hightower never spoke with Garguilo and made no request

that Garguilo or anyone else in New York undertake

any investigative efforts, knock on doors, talk with

neighbors, locate a landlord, follow any leads, or conduct the most minimal surveillance. Garguilo visited

the addresses only during normal working hours, when

most people with a nine-to-five job would not be

expected to be at home. Compare Hardy v. Cross,

supra, 565 U.S. 68 (no confrontation clause violation

when state visited witness’ residence ‘‘on numerous

occasions, approximately once every three days, at different hours of the day and night’’), with United States

v. Quinn, supra, 901 F.2d 528 (government’s efforts

were insufficient to establish witness’ unavailability

because government visited her apartment only twice,

talked to her apartment manager and neighbor, drove

by her mother’s house, and talked to her mother on

phone). No follow-up was requested after Garguilo

reported back regarding his lack of success, and no

further efforts were made to locate Parks.

The minimal effort undertaken by the state does not

qualify as diligent. If the state did not already have

Parks’ former testimony in hand, we consider it very

unlikely that a supervisor would have accepted Hightower’s efforts without requiring more. Although we do

not doubt the sincerity of the state’s efforts to secure

Parks’ attendance at trial, we nonetheless find ourselves

firmly of the view, on this record, that the state’s ‘‘unenthusiastic’’; United States v. Quinn, supra, 901 F.2d 528;

and ‘‘perfunctory’’ efforts are insufficient to meet the

‘‘relatively high good faith standard’’ of the confrontation clause. United States v. Mann, 590 F.2d 361, 367

(1st Cir. 1978); see id. (explaining that ‘‘perfunctory

efforts’’ are insufficient under confrontation clause

because, otherwise, prosecutorial authorities would

have incentive to ‘‘discourage attempts to bring the

witness to trial so long as the government is satisfied

with what is in the transcript’’). Because Parks was an

important witness and the criminal charges against the

defendant were of the most serious nature, ‘‘we are left

with the firm conviction that the [state’s] efforts to

[ensure] [Parks’] presence would have been far less

casual had the shoe been on the other foot. If the [state]
had not had [Parks’] preliminary hearing testimony and

had needed [Parks’] presence at trial, we are confident

that the resources and effort devoted to finding [her]

prior to trial would have been greater than they in fact

were. To countenance such a disparity would ill serve

the interests protected by the [c]onfrontation [c]lause.’’

McCandless v. Vaughn, supra, 172 F.3d 269; see also

Cook v. McKune, supra, 323 F.3d 840 (explaining that,

‘‘[i]f the [s]tate’s feeble exertions’’ to procure the attendance of crucial witness in murder case ‘‘can be called

a [good faith] effort,’’ then ‘‘the [s]ixth [a]mendment

protections . . . would be toothless’’).

We cannot agree with the dissenting opinion that the

state’s efforts in this case were ‘‘solidly on the spectrum

of those deemed to be reasonable and in good faith

by Connecticut and federal courts.’’ As we explained

previously, the reasonableness of the state’s efforts

must be ‘‘evaluated with a sensitivity to the surrounding

circumstances and the defendant’s interest in confronting the absent witness.’’ McCandless v. Vaughn, supra,

172 F.3d 266. In cases in which ‘‘a ‘key’ or ‘crucial’

witness’ testimony is involved’’ and in which ‘‘the consequences of a conviction based on the absent witness’

testimony are grave,’’ ‘‘[c]onfrontation [c]lause concerns are heightened and courts insist on more diligent

efforts by the prosecution . . . .’’ Id.; see also United

States v. Lynch, supra, 499 F.2d 1023–24 (holding that

government’s efforts to find sole eyewitness to murder

were not ‘‘as vigorous’’ as they would have been in

absence of witness’ prior testimony, even though witness was served with subpoena and detectives interrogated her grandmother and went to apartment at which

she allegedly could be found multiple times); Brooks v.

United States, supra, 39 A.3d 884 (‘‘[t]he government’s

obligation to take steps to produce the witness ha[s]

to correspond to the importance of the witness and the

potential prejudice to the defendant if she [does] not

testify’’); State v. Lee, 83 Haw. 267, 279–80, 925 P.2d

1091 (1996) (state’s ‘‘lackluster efforts’’ to find crucial

witnesses to murder were insufficient to establish their

unavailability under confrontation clause because,

among other things, state failed to search for their ‘‘driver’s license or motor vehicle registration’’ or show ‘‘any

follow-up’’ after visit to one witness’ last known

address); State v. Maben, 132 N.J. 487, 503–504, 626

A.2d 63 (1993) (The state’s ‘‘minimal search’’ efforts

were insufficient to establish the unavailability of the

child sexual assault victim because ‘‘[t]he [s]tate [neither] asked the post office whether the family had left

a forwarding address, nor [asked] neighbors for the

names of family members who might know of the family’s location. The [s]tate never checked to see whether

the mother, who had received welfare in New Jersey,

had applied for benefits in Houston, [Texas] which was

the logical place to check because prosecutors had an

indication that the family had moved there . . . . [T]he
[s]tate did not ask the Houston police for assistance in

locating the family, other than to provide the police

with one address.’’ [Citation omitted.]). Although Hightower’s efforts to locate Parks might have been sufficient to demonstrate her unavailability if her testimony

had been peripheral in its importance or if the crimes

charged had not been grave; see, e.g., State v. Smith, 112

Conn. App. 592, 603–604, 963 A.2d 104 (state’s efforts

to find witness by visiting her home and calling her cell

phone multiple times were sufficient to establish her

unavailability when witness, who neither was present

at time of shooting nor had any firsthand knowledge

about it, testified only about victim’s demeanor prior

to shooting), cert. denied, 291 Conn. 912, 969 A.2d 176

(2009); State v. Miller, 56 Conn. App. 191, 195, 742 A.2d

402 (1999) (state’s efforts to find witnesses by checking

motor vehicle department records for their last known

addresses and visiting those addresses prior to trial of

defendant, who was charged with larceny and engaging

in real estate business without license, were sufficient

to establish witnesses’ unavailability), cert. denied, 252

Conn. 937, 747 A.2d 4 (2000); the crucial nature of Parks’

testimony and the severe crimes with which the defendant was charged ineluctably lead to the conclusion

that the state must put forth a ‘‘greater . . . effort’’;

Cook v. McKune, supra, 323 F.3d 835; to secure Parks’

attendance at trial.15

For the foregoing reasons, we conclude that the state

has failed to establish that it undertook a reasonable,

diligent, and good faith effort to locate Parks prior to

the defendant’s trial, and, therefore, Parks’ former testimony improperly was admitted in violation of the defendant’s right of confrontation. We therefore reverse the

judgment of the Appellate Court.

II

Although our conclusion in part I of this opinion that

the defendant is entitled to a new trial disposes of this

appeal, we address the merits of the defendant’s second

claim that the trial court improperly admitted the testimony of the state’s expert witness on firearm and tool

mark identification in violation of the defendant’s sixth

amendment right of confrontation because it is likely

to arise on remand.16 The following additional facts

and procedural history are relevant to our review of

this claim.

One of the critical issues at trial was whether Barrett

or the defendant had fired the projectile17 that fatally

wounded the victim. The state recovered various projectiles and casings from the scene of the crimes and

submitted them to the state forensic laboratory for analysis. Gerard Petillo, a former employee of the state

forensic laboratory, examined seven of these projectiles

and casings, produced photographs, and generated a

ballistic report containing his expert conclusions. Stephenson, who also was employed at the state forensic
laboratory at that time, was the ‘‘technical reviewer’’

and ‘‘second signer’’ on Petillo’s ballistic report. As part

of his technical review, Stephenson physically examined four of the projectiles recovered from the scene

of the crimes.

Petillo died prior to trial and, therefore, was unavailable to testify. The state sought to admit the in-court

expert testimony of Stephenson in lieu of Petillo’s ballistic report. The defendant moved to suppress Stephenson’s in-court testimony, contending that it was inadmissible under the confrontation clause of the sixth

amendment pursuant to Bullcoming v. New Mexico,

564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011),

and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129

S. Ct. 2527, 174 L. Ed. 2d 314 (2009), because it was

predicated on Petillo’s ballistic report, which the defendant claimed was testimonial hearsay. The state

opposed the defendant’s motion, arguing that, although

Stephenson’s expert opinions ultimately were ‘‘no different’’ than Petillo’s, Stephenson had formed his own

independent conclusions after reviewing all of the information available, including photographs, notes, and Petillo’s report. The state argued that there was ‘‘no confrontation issue’’ because the defendant would be able

to confront Stephenson and to cross-examine him

regarding the basis of his expert opinions. The trial

court agreed and denied the defendant’s motion to

suppress.

At trial, Stephenson testified that seven nine millimeter caliber cartridge cases and projectiles recovered

from the scene of the shooting were submitted to the

state forensic laboratory for examination. Stephenson

explained that six of the seven cartridge cases ‘‘had

consistent rifling characteristics as being fired [from]

the same firearm,’’ whereas the seventh cartridge case,

which was recovered near the victim’s body, had been

fired from a different firearm. Similarly, with respect

to the projectiles, Stephenson testified that one of the

seven projectiles—the one recovered from the victim’s

body—‘‘was inconsistent’’ and ‘‘couldn’t have come

from the same barrel.’’ During closing argument, the

state emphasized the importance of Stephenson’s testimony, arguing that it supported the state’s theory that

the bullet that killed the victim ‘‘wasn’t from [Barrett’s]

gun’’ but, rather, was from the defendant’s gun.

On appeal, the defendant contends that the trial court

improperly admitted Stephenson’s expert testimony in

violation of his sixth amendment right of confrontation

because his testimony was predicated on Petillo’s ballistic report, which he argues is testimonial hearsay, and

the defendant did not have a prior opportunity to crossexamine Petillo regarding his expert conclusions. The

state responds that the record is inadequate to review

the defendant’s confrontation clause claim because neither Petillo’s ballistic report nor the other materials
‘‘reviewed by Stephenson in preparation for his testimony were . . . marked for identification or entered

into evidence at trial,’’ and, therefore, it cannot be determined whether they ‘‘were, in fact, testimonial’’ in

nature. Alternatively, the state contends that there was

no confrontation clause violation because Stephenson

conducted his own independent review of the evidence,

formulated his own expert opinion, and was available

for cross-examination. The state also argues that, even

if a confrontation clause violation occurred, any such

violation was harmless beyond a reasonable doubt.

‘‘Under Crawford v. Washington, supra, 541 U.S. 59,

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.’’ State v. Smith, 289 Conn. 598,

618, 960 A.2d 993 (2008). ‘‘Nontestimonial statements,

however, are not subject to the confrontation clause

and may be admitted under state rules of evidence.

. . . Thus, the threshold inquiries that determine the

nature of the claim are whether the statement was hearsay, and if so, whether the statement was testimonial

in nature, questions of law over which our review is

plenary.’’ (Citation omitted.) Id., 618–19.

We recently addressed the admissibility of expert

testimony under the sixth amendment’s confrontation

clause in State v. Walker, 332 Conn. 678, 212 A.3d 1244

(2019). In Walker, we acknowledged that ‘‘expert witnesses . . . may base their testimony on information

provided to them by other sources without their testimony necessarily being regarded as introducing hearsay.’’ Id., 691; see also Conn. Code Evid. § 7-4 (b) (‘‘The

facts in the particular case upon which an expert bases

an opinion may be those perceived by or made known

to the expert at or before the proceeding. The facts

need not be admissible in evidence if of a type customarily relied on by experts in the particular field in forming opinions on the subject.’’). ‘‘Accordingly, [w]hen the

expert witness has consulted numerous sources, and

uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own

right and not as hearsay in disguise.’’ (Emphasis in

original; internal quotation marks omitted.) State v.

Walker, supra, 692.

‘‘Nonetheless, the underlying information upon

which the expert’s opinion is based may not itself be

admitted into evidence for its truth.’’ Id.; see also Conn.

Code Evid. § 7-4 (b) (‘‘[t]he facts relied on [by the

expert] pursuant to this subsection are not substantive

evidence, unless otherwise admissible as such evidence’’). ‘‘Accordingly, the testimony of an expert witness improperly introduces hearsay when the out-ofcourt statements upon which it is based are themselves
admitted into evidence to prove the truth of what they

assert.’’ State v. Walker, supra, 332 Conn. 692.

‘‘In criminal cases, the admission of expert testimony

that is based upon an out-of-court statement may implicate the confrontation clause if the underlying statement itself is testimonial. Acknowledging these concerns, courts have held that expert witnesses may base

their opinions on the testimonial findings of other

experts without violating the confrontation clause if

those underlying findings are not themselves put before

the jury. . . . On the other hand, 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.’’ (Citations omitted.) Id., 693–94. Thus, expert testimony is inadmissible

under the confrontation clause if it is ‘‘used as [a conduit] for the admission into evidence of the testimonial

statements of others.’’ Id., 695.

We applied these principles in Walker to determine

whether the admission into evidence of the testimony

and report of the state’s expert witness on DNA,

Heather Degnan, violated the sixth amendment right of

confrontation of the defendant, Eugene L. Walker. Id.,

680–81. Degnan personally tested a bandana found at

the scene of the crime and determined that it contained

Walker’s DNA, but her expert opinion was predicated

on a DNA profile for Walker generated, without her

participation, by the ‘‘ ‘known processing group.’ ’’ Id.,

684. Specifically, an analyst or analysts at the known

processing group had analyzed Walker’s buccal swab

and generated a ‘‘known’’ DNA profile for Walker, which

Degnan then relied on to reach her conclusion that the

DNA found on the bandana belonged to Walker. Id.

Degnan ‘‘neither performed nor observed the analysis

of the buccal swab that produced [Walker’s] DNA profile’’; id., 681; nor was there any evidence that she was

provided with ‘‘the raw machine data . . . .’’ Id., 696.

Nonetheless, at the defendant’s trial, Degnan swore ‘‘ ‘to

the accuracy’ of the DNA profile provided to her’’ and

testified ‘‘that the analyst or analysts who processed

the known samples ‘did it properly, followed standard

operating procedures.’ ’’ Id., 685–86.

We concluded in Walker that ‘‘Degnan’s testimony at

trial necessarily introduced the out-of-court statements

of the known processing group and did not consist

merely of her own independent opinion.’’ Id., 697.

Although ‘‘Degnan’s testimony about the DNA profiles

she generated from the bandana was not hearsay

because she conducted these analyses herself,’’ Degnan

‘‘explicitly referred to, relied on, and vouched for the

quality of work that she did not perform and, in so

doing, relayed to the jury the known processing group’s

out-of-court statements about [Walker’s] numerical
DNA profile.’’ Id. Additionally, ‘‘Degnan introduced the

known processing group’s out-of-court statements by

including in her report, which was admitted into evidence without limitation, the allele numbers comprising

[Walker’s] DNA profile that the known processing group

had provided to her.’’ Id., 697–98. Because the known

processing group’s out-of-court statement regarding

Walker’s DNA profile was offered for its truth, was

hearsay, and was testimonial in nature; id., 700; we

held that Degnan’s expert testimony was admitted in

violation of Walker’s sixth amendment right of confrontation. Id., 719–20.

Pursuant to Walker, Stephenson’s testimony was

admissible, even if predicated in material part on testimonial hearsay, as long as the underlying hearsay was

not admitted into evidence or otherwise put before the

jury for the truth of the matter asserted. The record

reflects that neither Petillo’s ballistic report nor any of

the statements or conclusions contained therein were

admitted into evidence, either as an exhibit or through

the conduit of Stephenson’s live, in-court testimony.

Although the jury was informed that Stephenson had

reviewed ‘‘a number of reports and photographs in preparation for [his] testimony,’’ the contents of those

reports were not presented to the jury. When the state

attempted to elicit information regarding ‘‘which

reports [Stephenson had] reviewed,’’ the defendant

objected to this line of inquiry, and the trial court implicitly sustained the defendant’s objection, ruling that Stephenson’s testimony must be limited ‘‘to his own conclusions.’’ Thus, the jury was not informed of the nature

of the reports on which Stephenson had relied, who

generated the reports, what information they contained,

or whether Stephenson’s expert opinions were consistent with the reports. On the record before us, we conclude that Stephenson applied ‘‘his training and experience to the sources before him and reach[ed] an

independent judgment,’’ the basis of which could be

‘‘tested through cross-examination.’’18 United States v.

Johnson, 587 F.3d 625, 635 (4th Cir. 2009), cert. denied

sub nom. Martin v. United States, 559 U.S. 1082, 130

S. Ct. 2128, 176 L. Ed. 2d 749 (2010). ‘‘Where, as here,

expert witnesses present their own independent judgments, rather than merely transmitting testimonial hearsay, and are then subject to cross-examination, there

is no [c]onfrontation [c]lause violation.’’ Id., 636; see

also Bullcoming v. New Mexico, supra, 564 U.S. 673

(Sotomayor, J., concurring in part) (concluding that

admission of expert report violated confrontation

clause but noting that ‘‘[w]e would face a different question if asked to determine the constitutionality of

allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not

themselves admitted as evidence’’); United States v.

Mejia, 545 F.3d 179, 198 (2d Cir. 2008) (‘‘the question

underCrawford is whether the expert applied his exper-
tise to those [testimonial] statements but did not

directly convey the substance of the statements to the

jury’’ [internal quotation marks omitted]); State v.

McLeod, 165 N.H. 42, 53, 66 A.3d 1221 (2013) (‘‘the

[c]onfrontation [c]lause is not violated when an expert

testifies regarding his or her independent judgment,

even if that judgment is based [on] inadmissible testimonial hearsay’’); State v. Griep, 361 Wis. 2d 657, 682–83,

863 N.W.2d 567 (2015) (no confrontation clause violation when nontestifying analyst’s ‘‘testimonial forensic

report is not admitted and the expert witness who testifies at trial gives his or her independent opinion after

review of laboratory data’’), cert. denied, U.S. ,

136 S. Ct. 793, 193 L. Ed. 2d 709 (2016).

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

remand the case to the trial court for a new trial.

In this opinion PALMER, McDONALD and D’AURIA,

Js., concurred.

1 The confrontation clause of the sixth amendment to the United States

constitution, which is applicable to the states through the due process clause

of the fourteenth amendment; Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct.

1065, 13 L. Ed. 2d 923 (1965); provides in relevant part that, ‘‘[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him . . . .’’ U.S. Const., amend. VI.

2 Section 8-6 of the Connecticut Code of Evidence provides in relevant

part: ‘‘The following are not excluded by the hearsay rule if the declarant

is unavailable as a witness:

‘‘(1) Former testimony. Testimony given as a witness at another hearing

of the same or a different proceeding, provided (A) the issues in the former

hearing are the same or substantially similar to those in the hearing in which

the testimony is being offered, and (B) the party against whom the testimony

is now offered had an opportunity to develop the testimony in the former

hearing. . . .’’

3 The trial court vacated the jury’s findings of guilty with respect to the

charges of conspiracy to commit burglary in the first degree in violation of

§§ 53a-48 (a) and 53a-101 (a) (1) and conspiracy to commit robbery in the

first degree in violation of §§ 53a-48 (a) and 53a-134 (a) (2) because ‘‘[t]here

can . . . be [only] one conspiracy.’’

4 The defendant also challenged the admission of Stephenson’s expert

testimony under § 4-1 of the Connecticut Code of Evidence, arguing that

‘‘the state failed to establish the relevancy of Stephenson’s testimony by

providing a sufficient evidentiary foundation that the photographs, report,

and notes relied on by Stephenson were associated with the crimes at issue

in this case.’’ State v. Lebrick, supra, 179 Conn. App. 239. The Appellate

Court declined to address that claim because it was not preserved in the

trial court. Id., 240. The defendant has abandoned the claim in this certified

appeal. Although we reverse the Appellate court’s judgment insofar as it

affirmed the judgment of conviction, we take no position concerning the

Appellate Court’s analysis with respect to this issue.

5 We granted the defendant’s petition for certification, limited to the following issues: (1) ‘‘Did the Appellate Court properly conclude that the trial

court properly admitted the probable cause hearing testimony of . . .

Parks?’’ And (2) ‘‘[d]id the Appellate Court properly conclude that the trial

court properly admitted the testimony of . . . Stephenson?’’ State v.

Lebrick, 328 Conn. 912, 179 A.3d 218 (2018).

6 The evidence at trial established that the van was owned by Jamie

Henlon, who had rented it to the defendant.

7 At the defendant’s trial, Emory L. Hightower, the inspector in the Hartford

state’s attorney’s office assigned to locate Parks, testified on October 27,

2014, that he had commenced his search for Parks ‘‘approximately two

months ago.’’

8 Although the trial court did not make any explicit factual findings, its

ruling necessarily included an implicit finding that the state’s efforts to

produce Parks’ attendance at trial were reasonable, diligent, and conducted
in good faith. See, e.g., State v. Azukas, 278 Conn. 267, 276, 897 A.2d 554

(2006) (holding that trial court’s ruling on motion to suppress ‘‘necessarily

included an implicit finding’’ on whether homeowner had authority to consent to search of bedroom that his daughter shared with defendant); State

v. Johnson, 253 Conn. 1, 25, 751 A.2d 298 (2000) (holding that, ‘‘in accepting

the defendant’s guilty plea, the trial court implicitly found him [to be] competent’’).

9 We recognize that the federal habeas cases cited here are subject to the

Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254,

which requires federal courts to apply a presumption of correctness to a

state court’s factual findings. See 28 U.S.C. § 2254 (e) (1) (2012) (‘‘a factual

issue made by a [s]tate court shall be presumed to be correct’’). Nonetheless,

we conclude that the ‘‘mixed question of law and fact’’ standard appropriately

balances the traditional deference afforded to a trial court’s factual findings

and the plenary review of a trial court’s ultimate legal determination regarding the existence of a constitutional violation.

10 The defendant does not challenge, as a factual matter, the efforts undertaken by Hightower and Garguilo to locate Parks prior to trial. Rather, his

claim is that these efforts were insufficient as a matter of law to establish

Parks’ unavailability.

11 In doing so, we do not intend to suggest that other factors relevant to

the reasonableness inquiry cannot be considered in any particular case.

12 The state conceded at oral argument that, if Parks’ former testimony

improperly was admitted in violation of our rules of evidence or the confrontation clause, then the improper admission cannot be deemed harmless.

13 Barrett was unable to identify the defendant as the individual who shot

him and killed the victim. Although Ricky Naylor, the defendant’s former

cellmate at the MacDougall-Walker Correctional Institution, testified at trial

that the defendant had admitted to him that he was involved in a ‘‘robbery

gone bad,’’ he was armed with a gun, and three people died, Naylor’s testimony differed from Parks’ because, according to Naylor, the defendant did

not take the gun away from the victim, but, rather, his ‘‘cousins gave him

a gun’’ before he entered the apartment. Furthermore, unlike Parks, Naylor

did not testify that the defendant admitted to firing his weapon or shooting

his way out of the apartment. Therefore, we agree with the state that Parks’

testimony contained key inculpatory facts not available through the testimony of any other witness.

14 We disagree with the dissenting opinion that the evidence supports a

reasonable inference that Hightower used a ‘‘nonbasic’’ subscription to

CLEAR to search for Parks. Although Hightower at one point testified that

he thought that CLEAR included ‘‘all public databanks . . . or any sort of

anything that has to do with a public domain,’’ he later admitted that he

did not ‘‘know [the] specifics’’ of ‘‘how extensive’’ their databases are and

the types of information available. Tiernam, the CLEAR product specialist,

testified that CLEAR searches ‘‘detailed reports like . . . lawsuits, liens,

[and] judgments’’ or ‘‘social media information’’ only if the subscriber purchases an enhanced subscription. There is no evidence in the record, much

less the substantial evidence required to meet the state’s burden, to support

a reasonable inference that ‘‘the state . . . opted for the higher level subscription to CLEAR,’’ as the dissent posits. The trial court itself made no such

finding. To the contrary, our review of the record compels the conclusion

that Hightower’s CLEAR search encompassed only basic location information. See State v. Mangual, supra, 311 Conn. 197 (when defendant’s constitutional rights are at stake, reviewing court must ‘‘conduct a scrupulous examination of the record . . . in order to ascertain whether, in light of the totality

of the circumstances, the trial court’s finding is supported by substantial

evidence’’ [internal quotation marks omitted]).

15 Our conclusion is not predicated on ‘‘twenty-twenty hindsight,’’ as the

dissenting opinion suggests. Hindsight has no role in our analysis. Our

conclusion is based instead on the facts and circumstances known or readily

knowable to Hightower when he conducted his search. Hightower knew

that Parks was a reluctant witness who resided in the state of New York,

yet he never searched any New York state governmental databases, including

its motor vehicle, family court, child support, or housing records. Hightower

delegated the actual physical effort to serve process on Parks in New York

entirely to Garguilo, but he never even spoke with Garguilo regarding the

assignment and did not ask him to conduct any actual investigative work.

When Hightower thereafter received word that Garguilo’s efforts to serve

Parks were unsuccessful, Hightower did not pursue any follow-up, for example, by asking Garguilo to return to the locations at a time outside of normal
working hours. Hightower also failed to conduct basic Internet searches.

It was common knowledge in 2014, as it is today, that publicly available

websites such as Google and Facebook are valuable resources for locating

individuals, and these resources were (and continue to be) used every day

by tens of millions of people to locate everything and everyone from the

nearest gas station to a long lost childhood friend. Yet Hightower did not

use these tools to search for Parks. It is unknown whether any of these

inquiries would have unearthed information leading to Parks’ whereabouts,

but it is not the defendant’s burden to demonstrate that Hightower’s efforts

would have been successful. Instead, it is the state’s burden to demonstrate

that Hightower’s efforts were reasonable under the circumstances. See, e.g.,

Ohio v. Roberts, supra, 448 U.S. 74–75 (under confrontation clause, ‘‘the

prosecution bears the burden of establishing’’ that ‘‘the witness is unavailable

despite [good faith] efforts undertaken prior to trial to locate and present

that witness’’). It is not hindsight to observe that numerous basic and obvious

avenues of inquiry were left unpursued. Simply put, the state has failed to

meet its burden of demonstrating that Hightower’s efforts were reasonable

in this case.

16 ‘‘Ordinarily, we do not decide constitutional issues when resolving those

issues is not necessary to dispose of the case before us. . . . We have

made an exception to this rule, however, when an issue with constitutional

implications that has been presented and briefed by the parties is likely to

arise on remand.’’ In re Taijha H.-B., 333 Conn. 297, 312 n.9, 216 A.3d

601 (2019).

17 Stephenson explained that a projectile is a bullet that exits the cartridge

case of the firearm during the firing process, leaving behind a casing.

18 The defendant claims that Stephenson’s expert testimony is inadmissible

pursuant to State v. Buckland, 313 Conn. 205, 96 A.3d 1163 (2014), cert.

denied, 574 U.S. 1078, 135 S. Ct. 992, 190 L. Ed. 2d 837 (2015), because

the state failed to produce the live in-court testimony of ‘‘the person who

performed the test . . . .’’ We disagree. In Buckland, the defendant claimed

that the results of his breath alcohol test improperly were admitted under

the confrontation clause because ‘‘the state did not produce four witnesses

regarding the [Breathalyzer] machine and its calibration . . . .’’ Id., 211. We

rejected the defendant’s claim because, among other reasons, the ‘‘live

presence’’ of ‘‘both the person who performed the test . . . and an expert

to explain the results’’ satisfied the requirements of the confrontation clause.

Id., 216. Buckland is distinguishable from the present case because Stephenson did not explain the results of a test performed by an out-of-court declarant; instead, he testified about the results of his own independent analysis

of the available information. Accordingly, the defendant’s reliance on Buckland is misplaced.