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*********************************************** 
STATE v. LEBRICK—CONCURRENCE AND DISSENT

ROBINSON, C. J., with whom MULLINS, J., joins,

concurring in part and dissenting in part. I respectfully

disagree with part I of the majority opinion, in which

the majority concludes that the state did not engage in

a diligent, reasonable, and good faith effort to procure

the in-court testimony of a witness, Keisha Parks, at

the trial at which the defendant, Horvil F. Lebrick, was

convicted of, inter alia, felony murder and home invasion. Given this conclusion, the majority holds that the

Appellate Court improperly upheld the trial court’s

determination that Parks was an unavailable witness

and that the admission of her testimony from the defendant’s probable cause hearing did not violate the confrontation clause of the sixth amendment to the United

States constitution. See State v. Lebrick, 179 Conn. App.

221, 235–36, 178 A.3d 1064 (2018). In my view, the majority relies on twenty-twenty hindsight to conclude that

the state’s efforts to find Parks, which utilized comprehensive online resources and on the ground assistance

from an investigator with the Kings County District

Attorney’s Office to look for her at several potential

addresses in two boroughs of New York City, were not

reasonable. Because I would affirm the judgment of the

Appellate Court upholding the judgment of conviction,

I respectfully dissent.1

By way of background, I agree with the majority’s

statement of the relevant facts and procedural history.

I also agree with the general principles of law stated

by the majority, along with its conclusion in part I A

of its opinion that whether a witness is unavailable

for confrontation clause purposes presents a mixed

question of law and fact subject to plenary review.2

‘‘The

[s]ixth [a]mendment’s [c]onfrontation [c]lause provides

that ‘[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against him.’ . . . Most of the time, this means

that a witness must appear in person and give live

testimony at trial if her statements are to be used against

the defendant. . . .

‘‘The defendant’s right to a [witness’] live testimony

in the courtroom serves many important purposes,

including allowing the jury to observe closely the [witness’] demeanor, expressions, and intonations, and

thereby determine the [witness’] credibility. . . . The

[United States] Supreme Court has emphasized that incourt confrontation not only allows the defendant to

test the [witness’] recollection, but also compels the

witness ‘to stand face to face with the jury in order that

they may look at him, and judge by his demeanor upon

the stand and the manner in which he gives his testimony whether he is worthy of belief.’ . . .

‘‘Of course, the [United States] Supreme Court has
also told us that the right to a [witness’] presence at

trial is not absolute. In [Crawford v. Washington, 541

U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)],

the Supreme Court expressly held that the testimony

of a witness who does not appear at trial is still admissible, in the constitutional sense, if these two conditions

are met: (1) the witness ‘was unavailable to testify’; and

(2) ‘the defendant had had a prior opportunity for crossexamination.’ . . . Accordingly, prior cross-examination alone cannot substitute for the defendant’s right

to live testimony in the courtroom unless the witness

meets the [c]onfrontation [c]lause’s requirement of

‘unavailability.’ . . . The integrity of the fact-finding

process is at stake because the [c]onfrontation [c]lause

is a procedural protection.’’ (Citations omitted.) United

States v. Smith, 928 F.3d 1215, 1226–27 (11th Cir. 2019),

cert. denied, 88 U.S.L.W. 3225 (U.S. January 13, 2020)

(No. 19-361); see, e.g., State v. Kirby, 280 Conn. 361,

364 n.1, 908 A.2d 506 (2006) (‘‘[t]he confrontation clause

of the sixth amendment is made applicable to the states

through the due process clause of the fourteenth

amendment’’ [internal quotation marks omitted]).

Consistent with the constitutional restrictions under

Crawford, § 8-6 (1) of the Connecticut Code of Evidence3 allows for the admission of the ‘‘prior testimony

of an unavailable witness . . . in a subsequent trial as

an exception to the hearsay rule. . . . The two part

test for the admissibility of such testimony is as follows:

First . . . [t]he prosecution must either produce, or

demonstrate the unavailability of, the declarant whose

statement it wishes to use against the defendant. . . .

Even after the declarant is satisfactorily shown to be

unavailable, his statement is admissible only if it bears

adequate indicia of reliability . . . which serve to

afford the trier of fact a satisfactory basis for evaluating

the truth of the prior statement. . . .

‘‘In State v. Frye, 182 Conn. 476, 480–81, 438 A.2d

735 (1980), we identified five of the most common situations in which the declarant will be deemed unavailable

for the purposes of certain hearsay exceptions. The

situation relevant here states: the declarant is absent

from the hearing and the proponent of his statement

has been unable to procure his attendance . . . by process or other reasonable means. . . . 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.’’

(Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) State v. Rivera,

221 Conn. 58, 61–62, 602 A.2d 571 (1992); see, e.g.,

Hardy v. Cross, 565 U.S. 65, 69, 132 S. Ct. 490, 181 L.

Ed. 2d 468 (2011); 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); Barber v. Page,

390 U.S. 719, 724–25, 88 S. Ct. 1318, 20 L. Ed. 2d 255
(1968); State v. Wright, 107 Conn. App. 85, 89–90, 943

A.2d 1159, cert. denied, 287 Conn. 914, 950 A.2d 1291

(2008).

‘‘To take advantage of the hearsay exceptions requiring unavailability, the proponent must show a good

faith, genuine effort to procure the declarant’s attendance by process or other reasonable means. . . . This

showing necessarily requires substantial 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.’’ (Citations omitted.) 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;

accord State v. Wright, supra, 107 Conn. App. 90.

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

. . . a 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, e.g., Cook v. McKune, 323

F.3d 825, 835 (10th Cir. 2003) (noting that there is no

‘‘per se rule defining the measures that the prosecution

must take before a witness can be deemed unavailable’’

[internal quotation marks omitted]). ‘‘Simply put, the

[c]onfrontation [c]lause does not require the government to make every conceivable effort to locate a witness; it requires only a [good faith] effort that is reasonable under all of the circumstances of the case. . . .

As the [United States] Supreme Court has told us, [o]ne,

in hindsight, may always think of other things. . . .

[G]reat improbability that such efforts would have

resulted in locating the witness, and would have led to

her production at trial, neutralizes any intimation that

a concept of reasonableness required their execution.’’

(Citations omitted; internal quotation marks omitted.)

United States v. Smith, supra, 1230. ‘‘At bottom, a reasonable, [good faith] effort is [case specific] and contextually driven.’’ Id.

As the majority explains, four factors guide the determination of whether the state’s efforts to procure the

attendance of the witness were reasonable, namely (1)

‘‘the more crucial the witness, the greater the effort

required to secure his attendance,’’ (2) ‘‘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,’’ (3) ‘‘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,’’ and (4) whether the state made ‘‘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.’’ Cook v. McKune, supra, 323 F.3d
835–36. In my view, these factors reflect the prosecutor’s important role as a ‘‘minister of justice’’; Rules of

Professional Conduct 3.8, commentary; who is ‘‘not only

an officer of the court, like every attorney, but is also

a high public officer, representing the people of the

[s]tate, who seek impartial justice for the guilty as much

as for the innocent.’’ (Internal quotation marks omitted.) State v. Medrano, 308 Conn. 604, 612, 65 A.3d

503 (2013).

I agree with the majority that Parks was a critical

witness to the state’s case because, as the fiance ́e of

one of the defendant’s accomplices, she would have

testified to the defendant’s confession that he kicked

in the door to the apartment, disarmed the victim, and

shot his way out. It is beyond cavil that the defendant

was charged with extremely serious crimes, including

felony murder and home invasion, which left him

exposed to a life sentence. I also agree that Parks had

no special reason to favor the prosecution, insofar as

there is no indication that she stood to benefit personally from testifying in this case.

I part company from the majority with respect to

its analysis of the fourth factor, which considers the

reasonableness of the search in light of the efforts that

the state would have made if it did not have Parks’

prior testimony available. In contrast to the majority’s

view of the state’s efforts, my review of the record leads

me to conclude that the state’s efforts were competent

and reasonable rather than perfunctory and inadequate.

Emory L. Hightower, the inspector with the state’s criminal justice division in the Hartford state’s attorney’s

office who was tasked with finding Parks, commenced

his efforts at the end of August, 2014, approximately

two months prior to the defendant’s trial. Hightower

began his investigation by reviewing police reports and

memoranda in the state’s case file for Parks’ contact

information, and he unsuccessfully called the telephone

numbers contained in the file. He then searched for

Parks in the local Hartford police database to determine

whether she had had some ‘‘police contact’’ locally,

and he also searched for her in the National Crime

Information Center (NCIC) database, which is maintained by the Federal Bureau of Investigation but run

locally by the Connecticut State Police and contains

criminal and motor vehicle records. Hightower’s criminal records searches also included searches for pending

matters and other police contacts in both Connecticut

and Parks’ home state of New York. These searches

were unsuccessful.

With his criminal records searches bearing no fruit,

Hightower then utilized the CLEAR database system,

which is a search engine provided by the Thomson

Reuters Corporation that searches public records on a

state by state basis. As explained by Erin Tiernam, a

CLEAR product specialist employed by the Thomson
Reuters Corporation, CLEAR is a ‘‘data aggregator’’ that

pulls from numerous public records ‘‘to search for people, to [perform] due diligence on people, [and to] get

detailed background information, those types of

things.’’ In connection with a ‘‘person search,’’ CLEAR

uses a person’s name and date of birth to locate them

via credit header information from credit reporting

agencies, utility hookups for cable, gas, and electric

services, death records, civil court records, property

records, and motor vehicle registrations.4 Hightower

testified that his CLEAR search revealed contact information for Parks in New York that was current through

2013, the year before trial, including several telephone

numbers and addresses.

Moving offline, Hightower turned to the New York

addresses and telephone numbers that he had found

via his CLEAR search. He called the numbers and

learned that they were either no longer in service or

no longer receiving calls. Hightower learned that Parks’

last known address was an apartment located at 819

East 22nd Street in Brooklyn, New York, that her

address before that was an apartment at 108–09 159th

Street in the Jamaica neighborhood of Queens, New

York, and that her mother lived in an apartment at

1169 Flatbush Avenue in Brooklyn.5 Hightower then

forwarded the addresses and telephone numbers to the

Office of the Kings County District Attorney, which sent

one of its investigators, Frank Garguilo, to locate Parks

at those addresses and to serve her with a subpoena.

At 12:30 p.m. on Thursday, September 25, 2014, Garguilo went to the first Brooklyn address, 819 East 22nd

Street, and discovered a large house divided into several

apartments. He testified that a young woman from an

upstairs apartment let him into the building, and he

knocked on the door of the apartment believed to

belong to Parks, receiving no answer. Garguilo then

went back to his car and called one of the provided

telephone numbers, getting a voicemail recording

belonging to a ‘‘Miriam Augustine.’’ He then left a voicemail message but received no return call. Garguilo then

drove to 1169 Flatbush Avenue, another Brooklyn

address that Hightower identified as belonging to Parks’

mother. Garguilo knocked on that door and found no

one home. Later that day, at approximately 5 p.m., Garguilo returned to the East 22nd Street address and again

checked unsuccessfully for Parks.

The following morning, Friday, September 26, 2014,

Garguilo made a third visit to the East 22nd Street

address, which was similarly unsuccessful. That morning, he also tried calling the telephone number again,

but he received the same voicemail recording. He then

attempted to locate Parks by driving to the secondary

address that Hightower had provided in the Jamaica

section of Queens; that address was for another large

single family home that had been divided into apart-
ments. Garguilo testified that no one was home in any

of those apartments. Garguilo further testified that no

one had answered the door at any of the locations

that he had visited, leaving him unable to request more

information from neighbors, which is his ordinary practice when looking for someone. Garguilo testified that

his approach also was consistent with the policy directive of the Kings County District Attorney’s Office,

which was to follow the information provided by the

agency that had requested assistance rather than to

conduct an independent investigation.

I conclude that the efforts undertaken by the state

through Hightower’s investigation, which started online

and finished with Garguilo’s on the ground efforts in

Brooklyn and Queens, are solidly on the spectrum of

those deemed to be reasonable and in good faith by

Connecticut and federal courts.6 See, e.g., State v.

Rivera, supra, 221 Conn. 62–67 (trial court did not abuse

its discretion in determining that state had demonstrated that two witnesses who had left Connecticut

for Massachusetts and Puerto Rico were unavailable

for trial when state’s investigator, with assistance from

numerous out of state agencies, used criminal, corrections, and labor department databases to discover witnesses’ aliases and identification numbers, and state’s

failure to contact one of witness’ brothers was not

unreasonable because it might have narrowed investigation but would not ‘‘necessarily have found her’’); State

v. Smith, 112 Conn. App. 592, 596–98, 963 A.2d 104

(finding good faith, reasonable, and diligent effort when

state’s inspector called home of nonappearing witness

who resided in judicial district and received message

that number was not in service, left unreturned messages over multiple days on her cell phone ‘‘at varying

hours of the day and evening,’’ and visited her home

twice and place of employment once, where her boss

indicated that she could not reach her), cert. denied,

291 Conn. 912, 969 A.2d 176 (2009); State v. Wright,

supra, 107 Conn. App. 91 (good faith, reasonable and

diligent effort when state’s inspector looked for witness

over nine days, reviewed databases with driver’s license

and motor vehicle information, checked national and

local civil and criminal databases, identified witness’

social security number, and physically visited all

addresses in Bridgeport and New Haven found in

searches for witness, his mother, and his brother); State

v. Miller, 56 Conn. App. 191, 194–95, 742 A.2d 402 (1999)

(unavailability of witnesses ‘‘satisfactorily proved’’

when investigator checked witnesses’ addresses with

motor vehicles department, visited those addresses two

weeks before trial, and learned from individuals at those

addresses that witnesses had all moved out of state),

cert. denied, 252 Conn. 937, 747 A.2d 4 (2000); State v.

Sanchez, 25 Conn. App. 21, 24–25, 592 A.2d 413 (1991)

(reasonable good faith efforts to locate juvenile witness,

who had been ordered transported to airport for flight
to Puerto Rico upon her release from custody, when

state contacted investigator for juvenile court from public defender’s office and juvenile division probation officer, probation office did not know witness’ whereabouts, and investigator unsuccessfully attempted to

contact witness’ out of state grandmother both by telephone and through welfare office); see also Hardy v.

Cross, supra, 565 U.S. 67–71 (state’s efforts to secure

presence of missing sexual assault victim were reasonable when investigators visited her home every three

days at different times, visited and interviewed her relatives and former boyfriend’s family, and checked local

hospitals, jails, medical examiner, immigration, and

post office, and state’s failure to check with her friends

or current boyfriend was not unreasonable because

persons interviewed earlier provided no reason to think

that those individuals would have information about

witness’ whereabouts); United States v. Smith, supra,

928 F.3d 1229–31 (government made good faith efforts

to locate undocumented immigrant witness, who had

been mistakenly released from custody and had fled

from jurisdiction of trial court, by having immigration

agents search address that she previously had provided,

contacting attorney who had represented her on material witness complaint, and trying to communicate with

her by calling and sending text messages to her boyfriend’s cell phone); Evans v. Lindsey, Docket No. 19-

1394, 2019 WL 3214661, *3 (6th Cir. July 10, 2019) (state

court reasonably concluded that witness was unavailable when, after testifying at preliminary hearing, ‘‘[the

detective] personally served [her] at her residence with

a subpoena for trial,’’ she appeared in person for first

day of trial but then ‘‘expressed fear about testifying

and thereafter refused to answer or respond to [the

detective’s] numerous phone calls and voicemails,’’ and

detective went to her ‘‘residence multiple times, and

checked another address, but was unable to locate [the

witness],’’ whose husband ‘‘indicated that [she] was

afraid and had left without stating where she was

going,’’ even though detective did not check ‘‘other locations, such as hospitals and jails’’); Acosta v. Raemisch,

877 F.3d 918, 929–31 (10th Cir. 2017) (state court reasonably concluded that prosecution engaged in good faith

efforts to produce witness at trial when investigator

visited her last known addresses, checked with post

office to see whether she had filed change of address

form, ‘‘obtained information from ‘various sources’ indicating [that the witness] had no permanent residence,

lived on the streets, and was in hiding to avoid testifying,’’ and engaged assistance from other investigative

units, despite state’s failure to contact relatives other

than her grandfather or to check arrest records, which

would have revealed recent arrest), cert. denied,

U.S. , 139 S. Ct. 321, 202 L. Ed. 2d 220 (2018); Young

v. Grace, 525 Fed. Appx. 153, 156–59 (3d Cir. 2013) (state

court reasonably concluded that state police detective

made good faith effort to find witness by going to his
last known address several times, speaking with his

sister, and checking in with numerous local law enforcement agencies, post office, welfare department, and

department of motor vehicles), cert. denied sub nom.

Young v. Bickell, 571 U.S. 1241, 134 S. Ct. 1499, 188 L.

Ed. 2d 382 (2014); Mermer v. McDowell, Docket No.

CV 16-932-VAP(E), 2016 WL 5329623, *19–22 (C.D. Cal.

August 15, 2016) (reasonable efforts when detectives

engaged assistance from multiple law enforcement

agencies in region, checked multiple databases, continuously monitored arraignments, visited and surveilled

home of witness’ father, and went to three other locations where witness had been seen), report and recommendation accepted and adopted, 2016 WL 5329560

(C.D. Cal. September 21, 2016).

I respectfully disagree with the majority’s criticisms

of the state’s online and on the ground efforts as ‘‘anemic,’’ ‘‘perfunctory,’’ and ‘‘unenthusiastic,’’ and, therefore, insufficient to satisfy the good faith and reasonableness standards required by the confrontation

clause. The state’s efforts in this case bear none of

the hallmarks that courts have deemed unreasonable,

namely, a complete dereliction of the duty to search,

refusing to follow unmistakably obvious leads, or failing

to react to obvious warning signs that a witness

intended to disappear. Beyond cases featuring a complete absence of an effort to search,7 a paradigmatic

example of an unconstitutionally low effort is found in

Brooks v. United States, 39 A.3d 873 (D.C. 2012), in

which the District of Columbia Court of Appeals

deemed unreasonable the government’s efforts to find

a witness who had fled from the courthouse prior to

testifying at trial. Id., 879. Although the government had

tried ‘‘overnight, unsuccessfully, to contact her through

family and former addresses’’ and called local hospitals

and jails the next day, the court deemed these efforts

unreasonable on the basis of its assumption that the

witness was likely still in the vicinity. Id., 887. The

court emphasized that the prosecutor had rejected the

suggestion of defense counsel and specifically refused

to check in neighboring Virginia, where the witness had

been arrested in the past, or to contact her attorney

for assistance, even though she had expressly stated to

the prosecutor that ‘‘she needed to see her lawyer during the lunch break . . . . Instead, the prosecutor

declared he had ‘no expectation’ that she could be

found.’’ Id., 888. The court observed that ‘‘[w]hat the

situation demanded . . . was an intensification of

efforts, a [doubling down], to search for and locate

the witness, even if it required more than an overnight

continuance of the trial. In short, this is unlike prior

cases, in which we have held that in the absence of

evidence that there was any possibility of locating [the

missing witness], no matter how remote, we cannot say

that the government failed to meet its good faith effort

requirement.’’ (Internal quotation marks omitted.) Id.
The court stated that, although it was ‘‘mindful that the

government can face real challenges in dealing with

witnesses who may be unwilling to testify for any number of reasons, some of them understandable and compelling,’’ the ‘‘government’s efforts were pro forma and

plainly inadequate in light of [the witness’] demonstrated reluctance and her importance to the government’s case. It is difficult to imagine, in this prosecution

dependent on a sole eyewitness, that this lackadaisical

approach was equally as vigorous as that which the

government would [have] undertake[n] to prevent [the

witness] from disappearing had it not had her prior

testimony. . . . We can only infer that the government’s vigilance had relaxed and only minimal steps

were taken to present her live testimony at [the] appellant’s second trial once [the witness’] prior testimony

was in hand. . . . [Half measures] do not satisfy . . .

the [c]onfrontation [c]lause or the evidentiary requirement that the witness be unavailable before prior

recorded testimony may be admitted.’’ (Citations omitted; internal quotation marks omitted.) Id.

Other cases holding efforts to locate a witness to be

unreasonable involve similarly perfunctory efforts that

consist of nothing more than going through the motions,

with a record showing promising stones left unturned.

See, e.g., Cook v. McKune, supra, 323 F.3d 825, 836–40

(finding state’s efforts to locate witness, who was ‘‘vital’’

to first degree murder trial and who had received immunity from prosecution, to be unreasonable, ‘‘perfunctory,’’ and lacking good faith when state had engaged

in ‘‘heroic’’ efforts to contact witness while he was

hitchhiking in California and Mexico before receiving

his former testimony but relied on ‘‘gentlemen’s agreement’’ to have him return for trial and declined to pay

his travel expenses in advance, despite knowing that

he was ‘‘nomadic’’ and indigent, and refused to charge

him with aiding and abetting after he failed to appear);

United States v. Quinn, 901 F.2d 522, 528 (6th Cir. 1990)

(finding government’s efforts to locate critical witness,

who lived locally, to be ‘‘negligible’’ and ‘‘singularly

unenthusiastic’’ when search was initiated on Thursday

before Monday trial, government presented no evidence

that it checked public records or attempted to find

forwarding address after being told by witness’ neighbor that she recently had moved, and, after being

informed that witness was at her mother’s house,

United States marshal merely drove by without stopping); People v. Cromer, 24 Cal. 4th 889, 903–904, 15

P.3d 243, 103 Cal. Rptr. 2d 23 (2001) (unreasonable

efforts when state did not begin to seek witness, who

had been reported to have disappeared months before,

until just before trial, visited her former residence several times, and, after receiving tip that witness was

living locally with her mother, delayed for two days

before visiting mother’s house once and leaving subpoena there); People v. Bean, 457 Mich. 677, 687–90,
580 N.W.2d 390 (1998) (state failed to exercise due

diligence when its efforts to locate witness were limited

to unsuccessful telephone calls, it failed to check for

change of address form, match telephone numbers of

witness’ relatives to addresses or check public agency

records, and it took ‘‘no steps whatsoever’’ to contact

authorities in the District of Columbia, where neighbors

and relatives informed investigators that witness had

moved with his mother); Hernandez v. State, 124 Nev.

639, 649–52, 188 P.3d 1126 (2008) (efforts to procure

attendance of out of state witness after she failed to

appear for trial were not reasonable when state called

her home, spoke only to child who mentioned family

emergency but did not speak to witness or other adult

to ascertain length of her absence or ability to return

to Nevada, and did not seek continuance to obtain such

information or to secure witness’ attendance); State v.

Harris, 279 Or. App. 446, 455–57, 379 P.3d 539 (2016)

(after reluctant teenage witness in family violence case

failed to appear in court despite being subpoenaed, ‘‘the

state made no further effort to locate her or to compel

her attendance at trial,’’ ‘‘did not attempt to locate [the

witness] through her mother, who was present at the

courthouse, or through other relatives or law enforcement; [and] it did not send or even propose to send law

enforcement to get her’’ or request continuance for that

purpose [emphasis in original]), rev’d on other grounds,

362 Or. 55, 404 P.3d 926 (2017);8 State v. King, 287 Wis.

2d 756, 768–69, 706 N.W.2d 181 (App.) (holding that it

was unreasonable for state to opt to ‘‘persuade’’ witness

to come to court rather than to serve her with subpoena

when she was available, especially when state conceded

that it had wrong address for seven prior attempts at

service and had failed to serve her after being informed

by victim’s advocate that witness believed that she did

not have to come to court without subpoena), review

denied, 286 Wis. 2d 662, 708 N.W.2d 694 (2005); cf.

State v. King, 622 N.W.2d 800, 807–808 (Minn. 2001)

(reserving decision about availability but expressing

concern that state had agreed to witness’ release after

his guilty plea, when plea testimony contained incriminating statements about defendant, and ‘‘expended minimal efforts’’ to find witness, as state did not contact

witness’ court services worker until after trial started,

that worker made only single telephone call to witness,

and state failed to contact witness’ mother or spouse,

who lived locally).

In contrast to these cases demonstrating a constitutionally inadequate effort to find a witness, I agree with

the Appellate Court that the state’s online and offline

efforts in this case were reasonable and consistent with

the prosecutor’s obligation to provide procedural justice, even though the efforts were ‘‘not exhaustive.’’

State v. Lebrick, supra, 179 Conn. App. 231–32. After

his search of criminal and law enforcement records in

Connecticut and New York was unsuccessful, High-
tower utilized the CLEAR ‘‘data aggregator,’’ which he

understood from his training and experience to be a

comprehensive resource, for his online search of

numerous public and private records.9 That online

search identified several potential addresses in Brooklyn and Queens where Parks might be found, which

Garguilo then checked multiple times to no avail, with

the other residents at those locations not answering

the door to furnish additional leads to Garguilo. There

is no evidence that Garguilo or Hightower ignored

potential leads; Parks did not want to be found, and

their searches of available locations simply brought

them to dead ends. Although Parks was a reluctant

witness, there is no claim that the state could or should

have acted peremptorily because of an indication that

she planned to disappear or refuse to testify. See People

v. Fuiava, 53 Cal. 4th 622, 676, 269 P.3d 568, 137 Cal.

Rptr. 3d 147 (‘‘[W]e could not properly impose upon

the [p]eople an obligation to keep periodic tabs on every

material witness in a criminal case, for the administrative burdens of doing so would be prohibitive. Moreover, it is unclear what effective and reasonable controls the [p]eople could impose upon a witness who

plans to leave the state, or simply disappear, long before

a trial date is set.’’ [Internal quotation marks omitted.]),

cert. denied, 568 U.S. 1069, 133 S. Ct. 788, 184 L. Ed.

2d 583 (2012). Put differently, the majority’s assessment

of the state’s efforts to the contrary runs afoul of the

maxim that ‘‘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.) State v.

Rivera, supra, 221 Conn. 67; see Ohio v. Roberts, supra,

448 U.S. 75–76. Accordingly, I conclude that the Appellate Court properly upheld the trial court’s determination that Parks was an unavailable witness for purposes

of the confrontation clause and § 8-6 (1) of the Connecticut Code of Evidence.

Because I would affirm the judgment of the Appellate

Court, I respectfully concur in part and dissent in part.

1

I agree with part II of the majority opinion, in which the majority concludes that the admission of the testimony of James Stephenson, the state’s

expert witness on firearm and tool mark identification, did not violate the

confrontation clause.

2

In the absence of confrontation clause concerns, for evidentiary purposes

under § 8-6 of the Connecticut Code of Evidence, ‘‘[t]he trial court has broad

discretion in determining whether the proponent has shown a declarant to

be unavailable. Only upon a showing of a clear abuse of discretion will this

court set aside on appeal rulings on evidentiary matters.’’ (Internal quotation

marks omitted.) State v. Rivera, 221 Conn. 58, 62, 602 A.2d 571 (1992).

3 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. . . .’’

4

I disagree with the majority’s assertion that ‘‘[t]he evidence indicates

that Hightower’s [CLEAR] search did not encompass ‘detailed reports like

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

there is no specific evidence as to which CLEAR subscription level was

available to Hightower. This criticism is not supported by the record. First,

although Tiernam testified that she did not know which subscription level

the state had purchased in this case, she also stated that CLEAR’s ‘‘basic’’

subscription level ‘‘includes what we would call our location services, which

would include all the credit headers, utility hookups, kind of the finding

people information,’’ with the second level providing ‘‘more detailed reports

like . . . lawsuits, liens, judgements, [and] criminal records.’’ (Emphasis

added.) Second, consistent with Tiernam’s description of CLEAR, Hightower

testified that, on the basis of his training and experience, he understood

CLEAR to ‘‘[list] any public document’’ and to provide access to the data

contained therein about civil proceedings, such as information about public

assistance and child support benefits. This evidence supports an inference

that the state—even in these challenging fiscal times—opted for the higher

level subscription to CLEAR.

I acknowledge, however, that there were several electronic sources that

Hightower was unable to search. Although Hightower had access to credit

headers via CLEAR, he did not have access to the underlying credit reports

or—in the absence of a subpoena—to banking records. He also did not have

access to Facebook or other social media sites from his office computer,

and it is not apparent from the record whether the state’s subscription to

CLEAR included the ‘‘web analytic search’’ function, which, according to

Tiernam, searches items such as ‘‘Facebook pages, LinkedIn pages, and also

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

Finally, Hightower also testified that there was no national database that

he could access that would allow him to see whether Parks was receiving

federal public benefits or payments from the Internal Revenue Service.

Hightower also did not inquire with immigration authorities; he testified

that he did not know whether Parks was Jamaican, like the defendant and

other individuals involved in the case.

5 Hightower testified that he did not know whether Parks owned or rented

her residences at those locations, and he did not do any additional research

to determine whether she had a landlord.

6 The reasonableness of the state’s efforts is also supported by on point

case law from our sister states. See, e.g., People v. Valencia, 43 Cal. 4th

268, 292–93, 180 P.3d 351, 74 Cal. Rptr. 3d 605 (finding good faith efforts

to locate helpful, but not critical, witness when investigator started search

several months before trial, called telephone number witness had provided in

police report, attempted to obtain new telephone number through telephone

company, checked addresses contained in motor vehicles records and spoke

to persons at those addresses, and reviewed criminal, credit, real estate,

and civil court records), cert. denied, 555 U.S. 891, 129 S. Ct. 198, 172 L.

Ed. 2d 158 (2008); Berkman v. State, 976 N.E.2d 68, 76–77 (Ind. App. 2012)

(efforts were reasonable when state, which learned that witness had left

Indiana for Florida while attempting to serve him with subpoena, believed

that witness was evading existing arrest warrants in Indiana and was unable

to contact him by telephone, even though state did not send investigator

to Florida because record did not reflect that state had possible address

for witness there), transfer denied, 984 N.E.2d 221 (Ind.), cert. denied, 571

U.S. 863, 134 S. Ct. 155, 187 L. Ed. 2d 109 (2013); Commonwealth v. Robinson,

451 Mass. 672, 675–77, 888 N.E.2d 926 (2008) (commonwealth engaged in

good faith efforts to locate witness, despite failure to search for him in New

Jersey where he reportedly had gone without leaving address or telephone

number, because he had outstanding arrest warrants in Massachusetts and

would be unlikely to return voluntarily, and investigators had checked other

potential addresses for him in Massachusetts and Rhode Island); State v.

Trice, 292 Neb. 482, 486, 495, 874 N.W.2d 286 (2016) (efforts to serve out

of state witness were reasonable when they ‘‘began well in advance of

trial and continued up to the time of trial’’ and involved ‘‘considerable

coordination with [out of state] authorities,’’ who had visited witness’

address and learned from his parents only that he had left Nebraska, with

no other information about his location provided); State v. Bailey, 163 N.C.

App. 84, 91, 592 S.E.2d 738 (finding good faith efforts from evidence that

‘‘law enforcement officers tried to subpoena [the witness] at the address

they were given, and called several phone numbers [for him] provided by’’

another witness), appeal dismissed, 358 N.C. 733, 601 S.E.2d 861 (2004);
State v. Brown, 744 A.2d 831, 835–37 (R.I. 2000) (state engaged in good faith

search for previously cooperative, subpoenaed witness who failed to appear

for trial when police from two towns unsuccessfully searched for him at

addresses where he might have been staying, repeatedly paged witness,

inquired of family members and neighbors, and checked hospitals and detention facilities throughout state); State v. Jones, 568 S.W.3d 101, 129–30

(Tenn.) (state made good faith effort to find critical witness in capital

homicide case by contacting multiple jurisdictions in Florida, where witness

was believed to be living, publishing his photograph in Florida newspaper,

and, after obtaining his telephone number from his mother, calling witness,

who indicated that he would not return to Tennessee to testify), cert. denied,

U.S. , 140 S. Ct. 262, 205 L. Ed. 2d 144 (2019); State v. Garner, Docket

No. 2016AP2201-CR, 2018 WL 1837088, *3–5 (Wis. App. April 17, 2018) (state

made reasonable efforts to locate witness, who had fled her pretrial services

program after testing positive for drugs, because she had willingly testified

at first trial and had given no indication that she would not testify at second

trial, and multiple police investigative units conducted local searches for

her over four days, including checking with her grandmother and following

up on leads suggested by defense counsel and witness’ own attorney), review

denied, 383 Wis. 2d 624, 918 N.W.2d 431 (2018).

7 See, e.g., Barber v. Page, supra, 390 U.S. 720, 723–25 (state ‘‘made absolutely no effort’’ to bring witness to testify in person, despite knowledge

that witness was in federal prison approximately 200 miles away); Earhart

v. Konteh, 589 F.3d 337, 345–46 (6th Cir. 2009) (unreasonable efforts when

state did not seek to compel attendance of minor witness at sexual assault

trial, ‘‘even though it knew exactly where [she] was,’’ namely, on vacation

with her family, which constituted ‘‘complete lack of effort’’), cert. denied,

562 U.S. 874, 131 S. Ct. 178, 178 L. Ed. 2d 107 (2010); Jackson v. Brown,

513 F.3d 1057, 1083–84 (9th Cir. 2008) (search for one witness was not

diligent when detective made no effort to locate him until several weeks

into trial because ‘‘he was ‘too busy and he hadn’t had really any time to

check it out,’ ’’ but search was diligent as to second witness, who had been

subpoenaed prior to trial and then released from custody, when officer

‘‘repeatedly checked’’ to see if she had been rearrested ‘‘under any of her

aliases’’ and repeatedly visited ‘‘the street corner where she was allegedly

working . . . to no avail’’); Whelchel v. Washington, 232 F.3d 1197, 1209

(9th Cir. 2000) (state made no effort to seek attendance of witness who

was being transferred out of state by his employer); United States v. Mann,

590 F.2d 361, 367–68 (1st Cir. 1978) (finding no good faith efforts when

government misused rule 15 [a] of Federal Rules of Criminal Procedure by

allowing key witness, who was juvenile Australian citizen, to leave Puerto

Rico for Australia); Abreu v. State, 804 So. 2d 442, 444 (Fla. App. 2001)

(finding that ‘‘the state made no effort to secure [the witness’] attendance

at trial’’ despite its awareness that ‘‘[the witness] may have been reluctant

to attend the second trial because he did not care for his earlier hotel

accommodations’’), aff’d, 837 So. 2d 400 (Fla. 2003); State v. Nobles, 357

N.C. 433, 441, 584 S.E.2d 765 (2003) (‘‘the present record does not demonstrate that [the witness] was even contacted for purposes of determining

her availability to testify at [the] defendant’s capital sentencing proceeding’’);

State v. Workman, 171 Ohio App. 3d 89, 95–96, 869 N.E.2d 713 (2007) (single

attempt to serve local witness with subpoena at her home on morning of

trial, with no other evidence offered about witness’ unavailability or state’s

efforts to locate her, was not diligent effort).

8 The Oregon Supreme Court reversed on the issue of unavailability, but

only because the defendant ‘‘objected to a continuance that would have

enabled the state to pursue other means of securing [the] witness.’’ State

v. Harris, 362 Or. 55, 57, 66–67, 404 P.3d 926 (2017).

9 The majority takes issue with Hightower’s failure to conduct a basic

Google or social media search for Parks, as well as his decision to rely on

a search of the databases available through CLEAR once his searches in

the Hartford Police Department and NCIC databases were unsuccessful.

Although the majority’s aspersion sounds good at first, given that the word

‘‘Google’’ is sufficiently ubiquitous as to be both noun and verb, it ultimately

is not a fair criticism of Hightower’s efforts, given the lack of evidence to

establish that a standard Google search would have revealed any more

information about Park’s whereabouts than the databases searched even

under a ‘‘basic’’ subscription to CLEAR. See footnote 4 of this opinion.