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STATE OF CONNECTICUT v. CHRISTOPHER

ANTHONY BROWN

(AC 37646)

Lavine, Prescott and Bishop, Js.

Argued September 22—officially released November 24, 2015

(Appeal from Superior Court, judicial district of

Hartford, Mullarkey, J.)

S. Max Simmons, assigned counsel, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy,

state’s attorney, and Robin D. Krawczyk, senior assistant state’s attorney, for the appellee (state).
Opinion

BISHOP, J. The defendant, Christopher Anthony

Brown, appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the second

degree in violation of General Statutes § 53a-94 (a), and

conspiracy to commit kidnapping in the second degree

in violation of General Statutes §§ 53a-48 (a) and 53a94 (a). On appeal, the defendant claims that the trial

court improperly denied his motion to compel the state

to disclose the identity of a confidential informant.1 We

affirm the judgment of the trial court.

At trial, the jury reasonably could have found the

following facts. In the early morning of August 4, 2012,

the defendant, Christopher Anthony Brown, and two

associates abducted the victim, NevilleBar, and brought

him to an abandoned building located at 27 Glendale

Avenue in Hartford. The defendant and his two associates brought the victim to the basement of 27 Glendale

Avenue, tied his wrists and ankles with rope, and threatened him at gunpoint, demanding to know where he

kept his supply of marijuana and cash. During the incident, the defendant and his associates stabbed the victim in the leg, hit him in the face with a gun several

times, and tortured him by melting a plastic water bottle

onto his arms. Before leaving the abandoned basement,

the three men took the victim’s wallet, which contained

$700, tied him with a blanket and a string of Christmas

lights, and left him in a bathtub.

On the morning of August 5, 2012, Hartford police

officers found the victim in the basement of 27 Glendale

Avenue after a neighbor heard him screaming for help.

When discovered, the victim was standing in the bathtub, covered in feces and urine, and bound by rope,

the string of Christmas lights, and the blanket. He was

confused and could only provide disjointed answers to

police questioning about the incident and the identity

of his assailants. He was then sent to Hartford Hospital

for treatment of his wounds and dehydration.

Later that day, Hartford police Detective Richard Salkeld visited the victim at the hospital at which time the

victim informed Salkeld that the three assailants were

black Jamaican men, one of whom had a ‘‘milky-white’’

left eye.

Following his conversation with the victim, Salkeld

spoke to the victim’s wife, Margaret Bar, and his niece,

Karina Reed. Reed informed Salkeld that she knew a

Jamaican male who had recently been evicted from 27

Glendale Avenue, but still used that location as a place

to party. She identified the Jamaican male as ‘‘Banit’’

and described him as having only ‘‘one eye.’’

On the basis of the descriptions provided by the victim and Reed, Salkeld searched the Hartford Police

database for black Jamaican men associated with 27

Glendale Avenue. That search revealed that the defen-
dant had recently been a resident of 27 Glendale Avenue. A physical description of the defendant in the

police booking system indicated that one of the defendant’s eyes was ‘‘whited over.’’

In the morning of August 6, 2012, Harford police

Detective Renee LeMark-Muir received information

from a registered confidential informant2 who, in the

past, had provided the police with credible and reliable

information that had led to the identification and location of suspects. The confidential informant told LeMark-Muir that on August 5, 2012, Reed had contacted

the informant, asked whether the informant had information regarding the abduction of the victim, and asked

whether a Jamaican male known as ‘‘Banit’’ had been

involved. The informant told the detective that the informant had then spoken to the defendant, whom the informant knew by his street name ‘‘Banit.’’ The informant

stated that the defendant had confessed to kidnapping,

tying up, beating, and melting a plastic bottle on the

victim. The informant also stated that the defendant

did not believe that the victim would identify him or his

two associates because the victim was afraid of them.

On the basis of the results of the police database

search, the descriptions of the assailants from the victim and Reed, and the information from the confidential

informant, Hartford police Detective David Ritcher prepared a photographic array consisting of eight photographs, one photograph of the defendant and seven of

black men of similar age, appearance, and dress. To

further make uniform the appearance of the individuals

and eliminate the distinct characteristic of the defendant’s eye, Ritcher blacked out the left eye of each

individual in the photographic array.

At approximately noon, on August 6, 2012, Ritcher

and Salkeld visited the victim in the hospital. They

administered the standard witness identification

instructions and also gave the victim a form containing

the same instructions. The victim initialed each instruction and signed the form, indicating that he understood

each instruction. The detectives then presented the photographic array to the victim, who selected the photograph of the defendant, whom he knew as ‘‘Banit.’’

He then provided the police with a signed voluntary

statement stating ‘‘this is the guy who robbed me and

kidnapped me.’’

The defendant was subsequently arrested pursuant

to a warrant and charged in a five count long form

information with: kidnapping in the second degree in

violation of § 53a-94 (a); assault in the second degree

in violation of General Statutes § 53a-60 (a) (2); robbery

in the first degree in violation of General Statutes § 53a134 (a) (4); conspiracy to commit kidnapping in the

second degree in violation of §§ 53a-48 (a) and 53a-94

(a); and conspiracy to commit assault in the second

degree in violation of §§ 53a-48 (a) and 53a-60 (a) (2).
Prior to trial, the defendant moved to compel the

disclosure of the confidential informant’s identity. In

support of his motion for disclosure, the defendant

claimed that he had a right to contact and to interview

the confidential informant to discover whether the

informant was credible and if the informant possessed

information helpful to his case. The defendant also

expressed suspicion that the confidential informant,

police, and victim had fabricated the identification of

him in the photographic array. In that regard, the defendant argued, through counsel, that while the victim

had been unable to identify his assailants when police

rescued him from the basement of 27 Glendale Avenue,

‘‘all of a sudden, it looks like [the informant] came along

and said whatever [the informant] said and then all

of a sudden the [identification] was made.’’ Defense

counsel further stated that ‘‘we have to jump to the

spot where we assume that the police are telling the

truth. I hope—we have to assume the police are telling

the truth. I hope that they are, they probably are, but

I have a shot, I think, to determine whether or not

there’s any issue with respect to these people in their

credibility.’’

The defendant offered, as an additional reason for his

request, his desire to investigate whether the informant

possessed any information that was relevant to his

defense. Defense counsel stated to the court that ‘‘I

can’t tell if [the informants] were eye witnesses or not.

[The state] says they were not, but I read them and I

wasn’t sure. . . . I don’t know, they might be helpful

to me. I think I have a right to at least try to talk to them,

with any limitations that the court wants to impose, I’m

happy to do that, but all this is rumor, upon rumor,

upon rumor and it’s just hard and it’s not fair.’’ Defense

counsel concluded by requesting that the court ‘‘order

the names of the [informants] to be turned over to me

so that I can contact them and determine if they can

be helpful to the case.’’

The state objected to the disclosure, arguing that

the confidential informant was credible because that

person was registered with the Hartford police and had

provided reliable and credible information to the police

in the past. The state argued, as well, that the informant

had no independent information regarding the crime

and had only aided the police in the identification of a

suspect whom the victim subsequently and independently picked out of a photographic array. Finally, the

state argued that the informant likely would be killed

if the informant’s identity was disclosed. In that regard,

the state asserted that although the defendant had confessed details of the crime to the confidential informant,

the state said that it would not be calling the informant

as a witness at trial in order to protect the informant’s identity.

In denying the defendant’s motion for disclosure, the
court stated: ‘‘[A]s far as the discovery is concerned,

there’s a purpose to withholding the identity of informants, a public interest purpose, with law enforcement

in its course, discretion, and duty to balance and the

preservation of the underlying purpose of the privilege

with the fundamental requirements of fairness. That’s

under State v. Jackson, [239 Conn. 629, 632–33, 687

A.2d 485 (1997).] . . .

‘‘Some of the questions that arise [are] whether or

not the information was given in confidence that it

would not be disclosed. If that was essential to maintaining the relationship between the parties and the

police, then it fosters a good community purpose as far

as confidential informants are concerned, and if the

disclosure would be harmful to that purpose. Now, if

the informant was a witness to or a participant in a

crime, it would be required that the[ir] be—the identity

be disclosed. . . .

‘‘Now, the defense in this particular motion has the

burden to establish, beyond mere speculation, that the

information would assist them, and if the only information they have is that the defendant made [an] admission

to them, and the state is not offering that, I can’t see

the necessity for disclosing that, nor do I find the

defense has met its burden.’’

At the subsequent jury trial, the defendant was convicted of kidnapping in the second degree in violation

of § 53a-94 (a), and conspiracy to commit kidnapping

in the second degree in violation of §§ 53a-48 (a) and

53a-94 (a).3 The court rendered judgment accordingly

and sentenced the defendant to a total effective term

of forty years incarceration, execution suspended after

twenty-three years, followed by five years conditional

discharge. This appeal followed.

On appeal, the defendant claims that the trial court

abused its discretion by denying his motion for disclosure of the identity of the confidential informant. Specifically, he argues that the circumstances leading to the

identification of the defendant from the photographic

array ‘‘support a reasonable inference’’ that the police,

victim, and informant fabricated the defendant’s

involvement in the crime and that the testimony of

the informant was necessary to present this defense of

mistaken identity to the jury.4 We are not persuaded.

‘‘As a threshold matter, we set forth the standard by

which an appellate court may review the propriety of

a trial court’s decision to order disclosure. . . . [T]he

determination of whether an inform[ant’s] identity shall

be revealed is reviewed as a matter involving the exercise of discretion by the court. . . . In determining

whether the trial court [has] abused its discretion, this

court must make every reasonable presumption in favor

of [the correctness of] its action. . . . Our review of a

trial court’s exercise of the legal discretion vested in it
is limited to the questions of whether the trial court

correctly applied the law and could reasonably have

reached the conclusion that it did.’’ (Citations omitted;

internal quotation marks omitted.) State v. Hernandez,

254 Conn. 659, 665–66, 759 A.2d 79 (2000).

Generally, the state is not required to disclose a confidential informant’s identity. Rovario v. United States,

353 U.S. 53, 59, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957).

This is known as the informant’s privilege, but is more

appropriately described as ‘‘the Government’s privilege

to withhold from disclosure the identity of persons who

furnish information of violations of law to officers

charged with enforcement of that law.’’ Id.

‘‘Roviaro established a test for assessing challenges

to the applicability of the informant’s privilege. This

test involves the balancing of two competing interests:

(1) the preservation of the underlying purpose of the

privilege; and (2) the fundamental requirements of fairness. . . . The underlying purpose of the privilege is

to protect the public interest in the flow of information

to law enforcement officials. The fundamental requirements of fairness comprise the defendant’s right to a

fair trial, including the right to obtain information relevant and helpful to a defense. . . . Whether [disclosure

is warranted depends] on the particular circumstances

of each case, taking into consideration the crime

charged, the possible defenses, the possible significance of the informant’s testimony, and other relevant

factors. . . .

‘‘Once the state has invoked the privilege, it is then

the defendant’s burden to show that the balance of the

evidence falls in favor of disclosure. . . . When the

defendant demonstrates that disclosure of an inform[ant’s] identity, or the contents of his communication,

is relevant and helpful to the defense, or is essential

to a fair determination of a cause, the government’s

privilege must yield. . . . Disclosure is essential to the

defense where nondisclosure could hamper the defendant’s right to a fair trial, such as where the informant

is a key witness or participant in the crime charged,

someone whose testimony would be significant in

determining guilt or innocence. . . . Mere speculation

that the informant’s information will be helpful to the

defense is not sufficient to mandate disclosure. . . .

[Accordingly, c]ourts generally agree that if the informant provides information to law enforcement officers

without any further involvement, disclosure must yield

to the protection of the informant.’’ (Citations omitted;

internal quotation marks omitted.) State v. Messam, 108

Conn. App. 744, 748–50, 949 A.2d 1246 (2008).

The rationale for this point of view is that the proposed testimony of an informant, who neither witnessed nor participated in the criminal activity, is

typically based on speculation. Because informants

who neither witnessed nor participated in the criminal
activity under scrutiny generally do not possess firsthand knowledge of the events, their information typically is not found sufficient to defeat the public’s

interest in protecting informant anonymity. See id.,

752–53 (‘‘[b]ecause the confidential informant was not

there to witness the [criminal activity], the courtreasonably concluded that the informant would not have had

any relevant testimony to offer as to the defendant’s

defense’’); State v. Hunt, 72 Conn. App. 875, 882–83,

806 A.2d 1084 (concluding that ‘‘[w]ithout any evidence

to suggest that the confidential informant was a witness

to, or a participant in, the transaction, the proposed

testimony was based simply on speculation’’ where

defendant ‘‘conten[ed] that the informant ‘had the

potential to the defense to rebut [the] charges with

potential testimony’ ’’ [emphasis in original]), cert.

denied, 262 Conn. 920, 812 A.2d 863 (2002). Therefore,

although not a fixed rule; Roviaro v. United States,

supra, 353 U.S. 62; it is typically not an abuse of discretion for a trial court to deny a defendant’s motion for

disclosure of an informant’s identity if the informant

did not witness the crime charged and merely provided

police with information that initiated an investigation

of the defendant. See State v. Richardson, 204 Conn.

654, 667–69, 529 A.2d 1236 (1987).

On the basis of our review of the record, we agree

that the defendant’s proffer in support of his motion

for disclosure amounted to mere speculation. The

defendant did not describe the substance of the informant’s potential testimony and indicated that he had

no idea as to whether the informant might have been a

witness or participantin the criminal activity. Moreover,

the defendant did not even claim that the substance of

the informant’s potential testimony would be relevant

and helpfulto his defense, stating only,through counsel:

‘‘[T]he prosecutor says [the informant] would be helpful

to the state, maybe that’s the case, I don’t know, they

might be helpful to me.’’ Similarly, in his concluding

remarks before the court ruled on the disclosure

motion, defense counsel asked the court to ‘‘order the

names of the [informants] be turned over to me so that

I can contact them and determine if they can be helpful

to the case.’’ Accordingly, the defendant, in pursuit of

his motion for disclosure, did not make any proffer,

either by eliciting testimony or through oral argument,

regarding how his right to a fair trial would be denied

if the informant’s identity was not made known to him.5

The court, in balancing the competing interests of the

state and the defendant, concluded that the defendant’s

unsubstantiated assertion that access to the informant

may have aided his case was insufficient to meet his

burden necessary to compel the disclosure of the informant’s identity. The court explained, ‘‘the defense in

this particular motion has the burden to establish,

beyond mere speculation, that the information would

assist them, and if the only information they have is
that the defendant made [an] admission to [the informant], and the state is not offering that [admission], I

can’t see the necessity for disclosing that, nor do I find

the defense has met its burden.’’

The balance weighs even more heavily toward nondisclosure when, as is the case here, the defendant can

neither claim with certainty that the informant was a

witness to or participant in the charged crime, nor point

to how the informant’s testimony at trial would, potentially, be helpful to the defense. See State v. Hunt,

supra, 72 Conn. App. 883. Proffers such as these are

too speculative to meet the defendant’s burden required

to compel disclosure. See State v. West, 178 Conn. 444,

446, 423 A.2d 117 (1979) (concluding trial court did not

abuse its discretion in denying defendant’s request to

disclose informant’s identity where ‘‘defendant never

advanced a specific reason for needing disclosure of

inform[ant’s] identity . . . [but] merely asserted that

it might be necessary to his defense’’). In such cases,

the Roviaro balancing test will rarely, if ever, favor disclosure.

Finally, the defendant argues that an inconsistency

between the victim’s initial and subsequent statements

to the police regarding his ability to identify his assailants raised a suspicion concerning the relationship

between the informant and the development of probable cause. See footnote 4 of this opinion. This claim,

however, rested entirely on innuendo propelled only

by speculation. Suspicions, without factual support, are

too speculative to meet the burden necessary for overcoming the informant’s interest in anonymity and the

public’s interest in effective law enforcement.6

Indeed,

the only factual assertions presented to the court

directly opposed the defendant’s suppositions. During

argument, the state asserted that the informant’s information only led to the inclusion of the defendant’s photograph in the photographic array and that the victim

independently picked the photograph out of the array

without coercion from the police. Additionally, the state

asserted that Reed’s statement to Salkeld independently

corroborated the informant’s tip. See State v. Richardson, supra, 204 Conn. 661 (denying disclosure of informant’s identity where informant’s tip corroborated).

In sum, the record reflects that the defendant’s claim

for disclosure was based on ‘‘[m]ere speculation thatthe

informant’s information will be helpful to the defense

[which] is not sufficient to mandate disclosure.’’ (Internal quotation marks omitted.) State v. Hunt, supra, 72

Conn. App. 883. Thus, on the basis of this record, the

court could have reasonably reached the conclusion

that the defendant did not meet his burden to compel

the disclosure of a confidential informant’s identity with

a bare assertion that an informant’s identify might be

necessary to his defense without advancing a specific

reason for needing disclosure of the informant’s iden-
tity. State v. West, supra, 178 Conn. 446. Accordingly,

the trial court did not abuse its discretion and the defendant’s claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant’s notice of appeal raised several challenges to his conviction. The only ground that the defendant pursues on appeal, however, is

that ‘‘the trial court abuse[d] its discretion in denying his motion to disclose

the identity of a confidential informant.’’

2 Although two confidential informants were involved in the police investigation and the defendant initially sought the disclosure of the identities of

both of them prior to trial, the defendant’s challenge on appeal is limited

to the disclosure of only one of the informants. Our analysis is similarly

limited to that specific informant.

3 The jury also convicted the defendant of conspiracy to commit assault

in the second degree in violation of §§ 53a-48 (a) and 53a-60 (a)(2). The court,

however, and without objection from the state, dismissed that conviction

pursuant to State v. Polanco, 308 Conn. 242, 248, 61 A.3d 1084 (2013).

4 At trial, the defendant argued that he required the informant’s identity

in order to assess the informant’s credibility, to determine whether the

informant’s information was based on hearsay, and to learn whether the

informant was biased against him. On appeal, the defendant slightly recasts

his prior argument, recalibrating it to assert that the sequence of certain

events during the police investigation reasonably could be described as

suspicious and that his reasonable suspicion supports the inference that

the informant could have offered information to the defense regarding the

propriety of the police investigation. Specifically, the defendant identifies

inconsistencies between the victim’s initial statement to the police when

he was rescued from the basement and his subsequent statement given at

the hospital. Initially, the victim—who police had ‘‘trouble understanding’’

and who gave ‘‘unconnected’’ responses to police questions—did not give

the police any details about the identity of the assailants or the white eye

of the defendant, but merely told the police that he could identify his assailants if he saw them again. Later, the victim was able to describe his assailants

as black Jamaican men, describe the defendant’s unique white eye, pick

the defendant out of a photographic array, and identify him as ‘‘Banit.’’

Accordingly, the defendant argues that a suspicion that the police, informant,

and victim deceitfully collaborated to fabricate the identification of the

defendant can be inferred from the inconsistent statements and that questioning of the informant—and not the police or victim—is necessary to quell

his suspicion.

5 Although we note that the defendant did not request an evidentiary

hearing in support of his motion for disclosure of the informant’s identity,

we do not mean to suggest that such a hearing is invariably required in this

context. In the case at hand, however, the absence of any evidentiary basis

for the motion, combined with defense counsel’s inability to articulate any

supporting factual basis not resting on mere speculation, left the court with

nothing more than mere conjecture from the defendant to balance against

the state’s interest in nondisclosure.

6 Alternatively, it could be inferred that the inconsistency between the

victim’s statements was the product of trauma rather than deceit.