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*********************************************** 
STATE OF CONNECTICUT v. LAZALE ASHBY

(SC 18190)

Robinson, C. J., and Palmer, McDonald, D’Auria,

Mullins, Kahn and Ecker, Js.*

Syllabus

Convicted of the crimes of capital felony, murder, felony murder, sexual

assault in the first degree, kidnapping in the first degree, and burglary

in the first degree in connection with the stabbing and strangulation of

the victim in her apartment, the defendant appealed to this court. The

police arrested the defendant when his DNA profile was matched to

DNA taken from the victim’s vaginal swab, and, after the defendant was

confronted with that evidence, he gave the police a written confession.

Evidence presented at trial established that a second, unidentified male

also contributed to the DNA on the victim’s vaginal swab, and unidentified male DNA also was discovered on the doorframe of the victim’s

bedroom and in saliva found on the victim’s shoulder. Prior to the

defendant’s trial, P, a jailhouse informant who was incarcerated with

the defendant, wrote a letter to W, a detective with the Hartford Police

Department, indicating that he had information about the defendant

that would be useful to W and referencing an unrelated criminal case

pending against the defendant. W subsequently met with P at the prison,

where they discussed the defendant’s involvement in the victim’s death,

whether P might receive a benefit for providing additional information,

and whether P would be willing to wear a wire. When W did not contact

P again after the meeting, P informed the defendant of the meeting, and

the defendant devised a ruse intended to undermine W’s credibility in

anticipation of W’s testimony at trial. A few days before the state was

to rest its case, P contacted W and informed W of the defendant’s ruse,

and the state notified the defense that it intended to call P as a witness.

The defendant filed a motion to suppress P’s testimony, which the trial

court denied, concluding that P had not been acting as an agent of the

state when he elicited information from the defendant. Thereafter, the

defendant requested an instruction on third-party culpability in connection with the presence of the unidentified male DNA found in and on

the victim’s body and at the crime scene, but the trial court declined

to give that instruction. On appeal from the judgment of conviction, the

defendant claimed that the state violated his sixth amendment right

to counsel by using P as an agent to deliberately elicit incriminating

statements from the defendant, there was insufficient evidence to support his conviction of burglary in the first degree, and the trial court

improperly declined to provide a third-party culpability instruction to

the jury in light of the unidentified male DNA discovered in and on the

victim’s body and at the crime scene. Held:

1. The trial court improperly denied the defendant’s motion to suppress

P’s testimony in violation of the defendant’s sixth amendment right to

counsel because P was acting as an agent of the state when he deliberately elicited incriminating statements from the defendant, and, accordingly, the judgment of conviction was reversed and the case was

remanded for a new trial: although there was no express or formal

agreement between P and W, in light of the totality of the circumstances,

P’s efforts to elicit incriminating statements from the defendant were

fairly attributable to the state, as the meeting between P and W emphasized what useful, incriminating information P might obtain as a result

of his future assistance and specifically focused on P’s efforts to obtain

information from the defendant, possibly through wearing a wire or by

other means, about his specific involvement in the victim’s death rather

than his involvement in unrelated criminal cases; moreover, P and W

discussed P’s interest in receiving a benefit in exchange for his cooperation, W indicated that the state’s attorney would have to approve any

such deal, and, after P testified at the defendant’s trial, the state in fact

provided P with his desired benefit by agreeing not to object to P’s

attempt to secure a sentence modification, which P and W had discussed

during their meeting; furthermore, the psychological pressures inherent
in confinement, along with P’s lengthy consecutive sentences, provided

P with a strong incentive to cooperate with the state, W never directed

P to cease eliciting information from the defendant or to avoid conversations with the defendant until the state’s attorney had approved of P’s

cooperation with W, and the state either knew or should have known

that W’s meeting with P was likely to result in further elicitation of

information from the defendant.

(One justice concurring in part and dissenting in part)

2.This court declined the defendant’s invitation to overrule its holding in

State v. Allen (216 Conn. 367), and, accordingly, the defendant could

not prevail on his claim that the evidence was insufficient to establish

that he remained unlawfully in the victim’s apartment for purposes of

his conviction of burglary in the first degree; contrary to the defendant’s

assertion that Allen improperly conflates the burglary elements of intent

and unlawful remaining, that case stands for the narrow proposition

that the state may prove an unlawful remaining on the premises, for

purposes of first degree burglary, by proffering evidence that a defendant

has engaged in conduct on the premises that was likely to terrorize the

occupants, and the defendant advanced no argument that his conduct

in the victim’s apartment was unlikely to terrorize the victim; moreover,

this court’s narrow reading of Allen was bolstered insofar as the Appellate Court has consistently restricted its application of Allen to cases

in which the state has presented evidence that the defendant engaged

in conduct likely to terrorize occupants, and the fact that the legislative

history of recent amendments to the burglary statutes strongly indicated

that the legislature has acquiesced in this court’s decision in Allen counseled strongly against overruling Allen in favor of a more restrictive

statutory interpretation of the relevant statutory ((Rev. to 2001) §§ 53a100 (b) and 53a-101 (a) (2)) language; furthermore, variations among

jurisdictions with respect to the law of burglary and license to remain

did not justify departing from the weighty considerations attendant to

stare decisis.

3. The trial court abused its discretion by declining to provide a third-party

culpability instruction to the jury, as the defendant established a direct

connection between a third person and the charged offenses; the evidence reasonably supported an instruction on third-party culpability,

as unidentified male DNA was recovered directly from the victim’s body

and from the blood covered doorframe of her bedroom, rather than

from the periphery of the crime scene, and the DNA on the victim’s

shoulder would have existed only for a limited duration and was not

otherwise explained by the record.

Argued April 29, 2019—officially released August 6, 2020**

Procedural History

Substitute information charging the defendant with

three counts of the crime of kidnapping in the first

degree, two counts of the crime of capital felony, and

one count each of the crimes of murder, felony murder,

sexual assault in the first degree, and burglary in the

first degree, brought to the Superior Court in the judicial

district of Hartford and tried to the jury before

Espinosa, J.; verdict of guilty; thereafter, during the

penalty phase of the proceedings, the jury found that

the existence of aggravating factors outweighed the

mitigating factors, and the court rendered judgment of

guilty in accordance with the verdict and imposed the

death penalty on each count of capital felony and terms

of imprisonment on the remaining counts, from which

the defendant appealed to this court; subsequently, the

trial court, Dewey, J., granted in part the defendant’s

postjudgment motion for an evidentiary hearing but

denied the relief requested; thereafter, the trial court,

Baldini, J., resentenced the defendant on each count

of felony murder to a term of life imprisonment without

the possibility of release. Reversed; new trial.
Adele V. Patterson, senior assistant public defender,

Jennifer L. Bourn, supervisory assistant public

defender, and Judith L. Borman, former senior assistant public defender, for the appellant (defendant).

Melissa L. Streeto, senior assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, and John Fahey, supervisory assistant state’s

attorney, for the appellee (state).
Opinion

ROBINSON, C. J. The principal issue in this appeal

is whether the state violated its affirmative obligation

under Massiah v. United States, 377 U.S. 201, 206, 84

S. Ct. 1199, 12 L. Ed. 2d 246 (1964), and its progeny to

respect and preserve an invocation of the right to counsel under the sixth amendment to the United States

constitution by using a jailhouse informant, Kenneth

Pladsen, Jr., to deliberately elicit certain incriminating

statements from the defendant, Lazale Ashby. The

defendant, who was convicted of several crimes in connection with a murder in the city of Hartford on the

night of December 1, 2002, appeals1

from the underlying

judgment, raising numerous claims of error. For the

reasons that follow, we conclude that the defendant’s

constitutional right to counsel was violated and, accordingly, that he is entitled to a new trial on all counts.

With respect to the defendant’s other claims, we conclude that (1) he is not entitled to a judgment of acquittal

on the charge of burglary in the first degree in violation

of General Statutes (Rev. to 2001) § 53a-101 (a) (2) on

the ground of insufficient evidence, and (2) the trial

court improperly declined to provide a third-party culpability instruction to the jury in light of certain unidentified male DNA discovered at the crime scene.2

The record reveals the following relevant facts and

procedural history. On December 1, 2002, the victim3

was living with her two year old daughter on the second

floor of a three story apartment building located on

Zion Street in Hartford. At approximately 7 p.m. that

evening, Yvette Davila, who lived in an apartment on

the third floor, invited the victim’s daughter upstairs to

watch Rudolph the Red-Nosed Reindeer on television.

The victim went upstairs about one-half hour later, left

her daughter with Davila, and never returned. Although

Davila made several attempts to contact the victim over

the hours that followed, those efforts proved unsuccessful. Davila’s husband, Daniel Roman, went downstairs

the following morning, noticed that a door to the victim’s apartment was ajar, and stepped into the victim’s

kitchen. Once inside, Roman saw the victim’s naked

body lying on the floor of an adjacent bedroom. Roman

then went back upstairs to his apartment, where he

and Davila called the police at 7:17 a.m.

The evidence offered at trial indicates that the victim

died as the result of strangulation. Specifically, an examination of the body revealed petechial hemorrhages and

neck abrasions consistent with the use of an irregular

ligature. The victim had also sustained several nonfatal

injuries, including numerous stab wounds to her back.

Forensic evidence did not establish an exact time of

death, but the presence of rigor mortis indicated that

the victim had been dead for hours by the time the

paramedics arrived that morning. A significant amount

of blood was found in both the kitchen and the bed-
room.

The police subsequently developed an unspecified

lead and, as a result of that information, were able to

obtain a warrant for a sample of the defendant’s DNA

to test against several samples collected from the crime

scene. Those tests revealed that the defendant and an

unidentified male were contributors to certain DNA

profiles developed from the victim’s vaginal swab. On

September 3, 2003, the defendant, who was eighteen

years old at the time, was arrested by the police. He

waived his Miranda4

rights and then was questioned

at length. Although the defendant initially denied knowing or having sex with the victim, he ultimately gave a

written confession after being confronted with the

results of the testing that had been performed on the

victim’s vaginal swab.5

The operative information in the present case contained nine counts, including two counts of capital felony; General Statutes (Rev. to 2001) § 53a-54b (5) and

(6); one count of murder; General Statutes § 53a-54a

(a); one count of felony murder; General Statutes (Rev.

to 2001) § 53a-54c; one count of sexual assault in the

first degree; General Statutes § 53a-70 (a) (1); three

counts of kidnapping in the first degree; General Statutes § 53a-92 (a) (2) (A), (B) and (C); and one count

of burglary in the first degree. General Statutes (Rev.

to 2001) § 53a-101 (a) (2). The defendant pleaded not

guilty, and a trial commenced on May 8, 2007.6 On June

27, 2007, a jury returned a verdict finding the defendant

guilty on all counts. The trial court subsequently rendered a judgment of conviction in accordance with the

jury’s verdict.7 This appeal followed. See footnote 1 of

this opinion.

I

We begin with the defendant’s claim that the state

violated his right to counsel under the sixth amendment.8 Pladsen, a jailhouse informant who was incarcerated with the defendant prior to and during the defendant’s trial, testified that the defendant had asked him

to participate in a ruse intended to undermine the credibility of Andrew Weaver, a detective with the Hartford

Police Department. The defendant sought to suppress

that testimony pursuant to Massiah v. United States,

supra, 377 U.S. 201, and its progeny, arguing that Pladsen had deliberately elicited incriminating statements

while acting as an agent of the police. On appeal, the

defendant claims that the trial court incorrectly concluded that no agency relationship existed and, as a

result, improperly denied his motion to suppress Pladsen’s testimony pursuant to Massiah. In response, the

state contends that the trial court’s conclusion was correct, and, therefore, the defendant’s motion to suppress

was properly denied. We agree with the defendant.

The record reveals the following additional undis-
puted facts relating to Pladsen’s involvement in the

present case. On December 27, 2006, Pladsen wrote a

letter to Weaver. At that time, Pladsen was an inmate at

Northern Correctional Institution (Northern) in Somers

and interacted with the defendant on a regular basis.9

That letter stated, among other things, that Pladsen had

information about the defendant that could prove ‘‘very

useful’’ to Weaver, that Pladsen was scheduled to be

paroled to serve a separate fifty-five year sentence in

Iowa, and that Pladsen would be extradited back to

Connecticut after serving that sentence. The letter referenced certain individuals involved in another criminal

case that was pending against the defendant and

included the following invitation: ‘‘You want my help,

come [and] see me [and] we’ll talk.’’ The letter stated

that Pladsen was not seeking a transfer to another correctional institution, a sentence reduction, or ‘‘anything

like that.’’

In response to Pladsen’s letter, Weaver scheduled a

meeting that was held in a private office at Northern

on January 5, 2007. During that meeting, Weaver and

Pladsen spoke specifically about the defendant’s

involvement in the victim’s death. Pladsen did not convey any detailed information but, instead, provided only

general facts to show that ‘‘he might know something.’’

At some point during that conversation, Weaver

inquired whether Pladsen would be willing to wear a

wire.10 Pladsen initially expressed some concern but

ultimately agreed. Pladsen also asked whether he would

benefit in some way from providing information about

the defendant.11 Weaver said that any ‘‘deals’’ or plans

to use a wire would have to be approved by the Office

of the State’s Attorney and that he would get back to

Pladsen.12 Pladsen said that he understood. Weaver then

added that the police are ‘‘always interested’’ in gathering information about criminal matters from reliable

sources and that he would be willing to listen to, and

subsequently verify, anything Pladsen had to say.

Weaver also made Pladsen generally aware that the

defendant’s trial was imminent and that the Office of the

State’s Attorney would be told any relevant information.

Weaver then told Pladsen that, because of his criminal

record and history, his word ‘‘[w]asn’t going to be good

enough . . . .’’

The Office of the State’s Attorney subsequently

advised Weaver to take no further action with respect

to Pladsen. As a result, Weaver did not follow up with

Pladsen as Weaver had promised. Over the months that

followed, a corrections officer contacted Weaver on a

few occasions to let him know that Pladsen wanted to

speak again. On May 17, 2007, Weaver asked a corrections officer to inform Pladsen that ‘‘nothing . . . had

changed’’ and that Weaver would try to be in touch

again soon.13

Pladsen testified that he eventually told the defendant
about the meeting with Weaver. Pladsen stated that the

defendant had then made a plan for Pladsen to feed

Weaver information about the case so that the state

would call Pladsen as a witness. According to Pladsen,

he was then supposed to lie on the stand and say that

he had received that information from Weaver. Pladsen

testified that he asked the defendant to write the information down and that the defendant had created a one

page note as a result. On May 28, 2007, a few days

before the state was scheduled to rest its case, Weaver

received multiple telephone calls indicating that Pladsen wanted to get in touch again. Pladsen testified that

Weaver called him the following day to ask what information Pladsen had. Pladsen then read Weaver the note

over the telephone.14

The state immediately notified the defense of its

intention to call Pladsen as a witness and disclosed

a copy of a five page report by Weaver detailing the

preceding events. On May 30, 2007, the defendant filed

a motion seeking to suppress Pladsen’s testimony pursuant to, inter alia, the sixth amendment. The following

day, the trial court commenced an evidentiary hearing

outside of the presence of the jury. During that hearing,

Weaver and Pladsen testified about the nature of their

conversations and the various events leading up to the

creation of the note. In particular, Pladsen testified that

he had acted on his own accord and that Weaver had

not promised him anything.

At the close of the evidentiary hearing, the trial court

orally denied the defendant’s motion to suppress Pladsen’s testimony.15 In a subsequent, written memorandum of decision, the trial court concluded that Pladsen

was not acting as an agent of the state. In reaching that

conclusion, the trial court expressly found Pladsen’s

testimony to be credible. The trial court reasoned: ‘‘Testimony demonstrated that Pladsen and Weaver had no

contact prior to January, 2007, and that Pladsen initiated

the first contact. There is no evidence to suggest that

the state, at any point, had a plan to enlist Pladsen’s

help in obtaining incriminating evidence from the defendant or had made an agreement with Pladsen to obtain

such evidence. In fact, all [the] evidence indicates that

there was no plan or agreement. Likewise, there is no

evidence to suggest that . . . any . . . law enforcement agency was involved in the decision to house

Pladsen near the defendant. Weaver never instructed

Pladsen to obtain incriminating evidence about the

defendant but, in fact, told him that any action would

require prior approval by the [Office of the State’s Attorney]. Weaver was advised not to pursue the matter

and never initiated further contact with Pladsen. When

Weaver later contacted Pladsen, it was only in response

to multiple messages requesting a return call. In addition, Weaver made no promises or offers to Pladsen

and told him that he had no authority to do so. Finally,

the defendant continued to discuss the details of his
case with Pladsen, even after he knew that Pladsen had

met with Weaver.’’

After the trial court denied the defendant’s motion

to suppress, the following evidence was presented to

the jury. Pladsen testified that he was an inmate at

Northern, again recounted the defendant’s ruse to discredit Weaver, and identified a particular exhibit submitted by the state as the note that the defendant had

written.16 Although Pladsen was subjected to extensive

cross-examination regarding his criminal history, mental health, and possible motives, he testified that he

was receiving absolutely no benefit in exchange for his

testimony. The state then presented testimony from a

handwriting expert, Greg Kettering, who concluded that

there was ‘‘no doubt’’ that the note shared a common

authorship with known samples of the defendant’s writing. The note was then admitted into evidence as a full

exhibit over the defendant’s objection. The contents of

that note stated, among other things, that the author

had ‘‘used the bloody tank top on the floor to strangle

[the victim], and that’s the murder weapon.’’17

Pladsen subsequently filed a motion in the Superior

Court seeking modification of a twenty-five year sentence he had received for an assault on a corrections

officer.18 The state consented to a hearing on that

motion, which was held on December 23, 2016, pursuant

to General Statutes § 53a-39 (b). At that hearing, the

state represented that Pladsen’s motion for a sentence

modification ‘‘was made . . . in the spirit of what

[Senior Assistant State’s Attorney John] Fahey had indicated to . . . Pladsen, that [the state] would make the

court aware of what [Pladsen] had done . . . .’’ See

footnote 17 of this opinion. Although the state consented to the hearing, it took no position on whether

Pladsen’s motion should be granted. After listening to

testimony from the corrections officer who Pladsen had

assaulted, the trial court in that case denied Pladsen’s

motion.

On appeal, the defendant claims that the trial court

improperly denied his motion to suppress Pladsen’s

testimony. Specifically, the defendant claims that his

sixth amendment right to counsel was violated when

the state used Pladsen as an agent to deliberately elicit

incriminating statements. In order to obtain relief on

such a claim, a defendant must prove the following:

‘‘(1) the [s]ixth [a]mendment right to counsel has

attached; (2) the individual seeking information from

the defendant is a government agent acting without the

defendant’s [counsel] being present; and (3) that agent

deliberately elicit[s] incriminating statements from the

defendant.’’ (Internal quotation marks omitted.) Henderson v. Quarterman, 460 F.3d 654, 664 (5th Cir. 2006),

cert. denied, 549 U.S. 1252, 127 S. Ct. 1383, 167 L. Ed.

2d 160 (2007); see also Massiah v. United States, supra,

377 U.S. 206; Stewart v. Wagner, 836 F.3d 978, 985 (8th
Cir. 2016); State v. Swinton, 268 Conn. 781, 854, 847

A.2d 921 (2004).

The defendant’s presentation of this claim, which

focuses on the question of agency, turns on the following general themes: ‘‘(1) Weaver’s encouragement . . .

of Pladsen, (2) Pladsen’s agreement to provide evidence

and wear a wire, and (3) the state’s failure to take any

action to call off Pladsen . . . .’’ The defendant asserts

that ‘‘[t]he trial court’s and [the] state’s constrained

view of agency as requiring explicit instruction, or as

requiring that the informant adhere to a preexisting

plan . . . is unsupported . . . [by] the case law’’ and

that the state ‘‘knew or should have known that Weaver’s interaction with Pladsen created a situation likely

to induce [the defendant] into unknowingly giving

uncounseled, incriminating statements to a person who

had agreed to help the state obtain evidence . . . .’’

In response, the state argues that the trial court correctly concluded that Pladsen was not acting as an agent

of the government. The state supports this argument

by pointing to several of the same facts relied on by

the trial court. Specifically, the state highlights (1) the

absence of specific plans or instructions, (2) the fact

that Pladsen appeared to be self-motivated, (3) Weaver’s statement that he could not personally approve

any plans or deals, and (4) the fact that Weaver never

followed up with Pladsen after their initial meeting.

The state concedes, as it must, that the defendant’s

sixth amendment right to counsel attached well before

Pladsen’s involvement. See, e.g., Kirby v. Illinois, 406

U.S. 682, 689–90, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972).

Likewise, the state advances no argument that Pladsen’s

actions fell short of deliberate elicitation. See, e.g., Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S. Ct. 2616, 91

L. Ed. 2d 364 (1986). Finally, the state does not claim the

absence of prejudice or otherwise invoke the harmless

error doctrine. See, e.g., United States v. Miller, 116

F.3d 641, 667–69 (2d Cir. 1997), cert. denied, 524 U.S.

905, 118 S. Ct. 2063, 141 L. Ed. 2d 140 (1998), and cert.

denied sub nom. Arroyo v. United States, 524 U.S. 905,

118 S. Ct. 2063, 141 L. Ed. 2d 140 (1998). Thus, the sole

issue with respect to this claim on appeal is whether

Pladsen was acting as an agent of the state when he

elicited incriminating statements from the defendant.

‘‘It is well settled that, [w]hen reviewing a trial court’s

denial of a motion to suppress, [a] finding of fact will

not be disturbed unless it is clearly erroneous in view

of the evidence and pleadings in the whole record

. . . . [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.’’ (Internal quotation

marks omitted.) State v. Jacques, 332 Conn. 271, 279,

210 A.3d 533 (2019); see also State v. Swinton, supra,

268 Conn. 855. ‘‘The issue of agency, even in a constitutional context, is primarily a question of fact . . . .’’

(Citations omitted.) State v. Alexander, 197 Conn. 180,

185, 496 A.2d 486 (1985). Nonetheless, to the extent

that the resolution of that question ‘‘calls for application

of the controlling legal standard to the historical facts,’’

it ‘‘presents a . . . question of law . . . which [this

court reviews] de novo.’’19 (Internal quotation marks

omitted.) State v. Castillo, 329 Conn. 311, 322–23, 186

A.3d 672 (2018). Such a review ‘‘is not limited to the

facts the trial court actually found in its decision on

the defendant’s motion to suppress. Rather, [this court]

may also consider undisputed facts established in the

record, including the evidence presented at trial.’’ Id.,

340 (D’Auria, J., dissenting). ‘‘[I]n particular, [this

court] must take account of any undisputed evidence

that does not support the trial court’s ruling in favor

of the state but that the trial court did not expressly

discredit.’’ State v. Edmonds, 323 Conn. 34, 39, 145 A.3d

861 (2016).

‘‘[T]he United States Supreme Court has held that a

state violates the sixth amendment when, acting

through an undisclosed agent, it ‘deliberately elicit[s]’

incriminating statements from an accused ‘after he [has]

been indicted’ and his right to counsel has attached.’’

State v. Swinton, supra, 268 Conn. 855, quoting Massiah

v. United States, supra, 377 U.S. 206. The general nature

of this constitutional duty is clear: ‘‘[T]he [s]tate [has]

an affirmative obligation to respect and preserve the

accused’s choice to seek [the] assistance [of counsel].’’

(Emphasis added.) Maine v. Moulton, 474 U.S. 159, 171,

106 S. Ct. 477, 88 L. Ed. 2d 481 (1985).20

Cases from the United States Supreme Court establishing this line of sixth amendment jurisprudence do

not directly address the question of agency. A review

of those decisions does, however, provide necessary

context. In Massiah v. United States, supra, 377 U.S.

202–203, law enforcement officers installed a radio

transmitter inside of a vehicle belonging to a cooperating codefendant. While the defendant in that case was

free on bail, he made incriminating statements inside

of the vehicle that were later admitted into evidence

over his objection at trial. Id., 203. The Supreme Court

concluded that these facts amounted to an indirect

interrogation and that federal agents, therefore, had

violated the sixth amendment.21 Id., 206.

Like the present case, United States v. Henry, 447

U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980), involves

government interactions with a jailhouse informant. In

that case, federal law enforcement officers contacted

an inmate who previously had been paid for providing

information. Id., 266, 270. That informant indicated that
he had been assigned to the same cellblock as the defendant and several other federal prisoners. Id., 266. ‘‘The

[officer] told him to be alert to any statements made

by the federal prisoners, but not to initiate any conversation with or [to] question [the defendant] regarding the

[crime at issue].’’ Id. Notwithstanding these instructions, the informant subsequently engaged the defendant in a series of conversations about the crime at

issue, which caused the defendant to make certain

incriminating statements. Id., 267. The informant

recounted those statements at trial, and the defendant

subsequently was convicted. Id. The government argued

on appeal that, although the informant had asked the

defendant questions, no sixth amendment violation

occurred because the informant had disobeyed instructions. Id., 269–71. The Supreme Court rejected that argument, concluding that, because of the informant’s history and proximity to the defendant, the officer ‘‘must

have known that such propinquity likely would lead to

that result.’’ Id., 271. The court then recounted ‘‘the

powerful psychological inducements’’ attendant to confinement: ‘‘[T]he mere fact of custody imposes pressures on the accused; confinement may bring into play

subtle influences that will make him particularly susceptible to the ploys of undercover [g]overnment

agents.’’ Id., 274. On these grounds, the court concluded

that the government had violated the defendant’s constitutional rights by ‘‘intentionally creating a situation

likely to induce [the defendant] to make incriminating

statements without the assistance of counsel . . . .’’22

Id., 274.

Finally, in Maine v. Moulton, supra, 474 U.S. 159,

a cooperating codefendant wore a wire to a meeting

requested by the defendant. Id., 164. As in Henry, the

informant was affirmatively instructed not to question

the defendant. Id., 165. Notwithstanding that instruction, the informant prompted the defendant to make

certain incriminating statements. Id., 166. Some of those

statements were admitted at trial, and the defendant

subsequently was convicted. Id., 167. Before examining

the facts of the case before it, the court characterized

the right at issue as follows: ‘‘Once the right to counsel

has attached and been asserted, the [s]tate must of

course honor it. This means more than simply that the

[s]tate cannot prevent the accused from obtaining the

assistance of counsel. The [s]ixth [a]mendment also

imposes on the [s]tate an affirmative obligation to

respect and preserve the accused’s choice to seek this

assistance. We have on several occasions been called

upon to clarify the scope of the [s]tate’s obligation in

this regard, and have made clear that, at the very least,

the prosecutor and police have an affirmative obligation

not to act in a manner that circumvents and thereby

dilutes the protection afforded by the right to counsel.’’23

(Footnote omitted.) Id., 170–71.

In Moulton, the state advanced an argument on
appeal that the sixth amendment had not been violated

because the meeting had been initiated by the defendant

rather than by the state. Id., 174. The Supreme Court

rejected that argument, concluding that the defendant

had an affirmative right ‘‘to rely on counsel as a

‘medium’ between him and the [s]tate.’’ Id., 176; see

also id., 170–71 n.6. Thus, the court concluded that

‘‘knowing exploitation by the [s]tate of an opportunity

to confront the accused without counsel being present

is as much a breach of the [s]tate’s obligation not to

circumvent the right to the assistance of counsel as is

the intentional creation of such an opportunity. Accordingly, the [s]ixth [a]mendment is violated when the

[s]tate obtains incriminating statements by knowingly

circumventing the accused’s right to have counsel present in a confrontation between the accused and a state

agent.’’ Id., 176. As it had in Henry, the court then held

that this standard had been met, concluding that, in

light of the undisputed facts, the state ‘‘must have

known’’ that the informant would elicit incriminating

statements. Id., 177.

Some general principles can be drawn from these

Supreme Court cases. First, although the state’s affirmative obligation primarily requires it to refrain from taking action, it does not follow that a court conducting

a sixth amendment analysis must ignore opportunities

for the state that came to pass by chance. Thus, the

court found a constitutional violation in United States v.

Henry, supra, 447 U.S. 268, even though the informant’s

housing in the same cellblock as the defendant in that

case had not been prearranged by the government. The

fact that the defendant requested the meeting in Maine

v. Moulton, supra, 474 U.S. 174–76, likewise did not

preclude a constitutional violation. Second, because of

the pressures attendant to physical custody, the risk of

infringement of the right to counsel is more acute in

the jailhouse setting. See United States v. Henry, supra,

274. Third, a rule requiring direct proof that the government knowingly violated the defendant’s right to counsel sets the bar too high to protect that right. See Maine

v. Moulton, supra, 176 n.12; see also State v. Diaz, 302

Conn. 93, 120, 25 A.3d 594 (2011) (Palmer, J., concurring) (‘‘[I]t is difficult for a defendant to demonstrate

the existence of an ‘implicit understanding’ between

the state and an informer that the latter will, in fact,

receive a benefit for his or her testimony. In fact, it is

likely to be impossible for the defendant to demonstrate

the existence of such an understanding between the

state and its witness.’’ (Emphasis in original.)). It will

suffice to show that, in light of the totality of the circumstances, the state ‘‘must have known’’ that its actions

likely would lead to the deliberate elicitation of incriminating statements.24 United States v. Henry, supra, 271.

Although these United States Supreme Court cases

explored the bounds of deliberate elicitation, lower

courts examining the question of agency—including
this court—have frequently looked to those decisions

for guidance. See, e.g., State v. Alexander, supra, 197

Conn. 184; see also Ayers v. Hudson, 623 F.3d 301,

310–16 (6th Cir. 2010) (applying ‘‘must have known’’

standard from Henry and invoking state’s affirmative

obligation from Moulton in case in which deliberate

elicitation was conceded by governemnt); Randolph v.

People, 380 F.3d 1133, 1144 (9th Cir. 2004) (‘‘Henry

makes clear that it is not the government’s intent or

overt acts that are important; rather, it is the ‘likely

. . . result’ of the government’s acts’’); Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 895 (3d Cir.)

(applying intentional creation standard from Henry to

question of agency), cert. denied sub nom. Matteo v.

Brennan, 528 U.S. 824, 120 S. Ct. 73, 145 L. Ed. 2d 62

(1999); United States v. Johnson, 4 F.3d 904, 912 (10th

Cir. 1993) (applying ‘‘ ‘affirmative obligation’ ’’ standard

from Moulton to question of agency), cert. denied, 510

U.S. 1123, 114 S. Ct. 1082, 127 L. Ed. 2d 398 (1994), and

cert. denied sub nom. Carroll v. United States, 510 U.S.

1123, 114 S. Ct. 1081, 127 L. Ed. 2d 398 (1994), and cert.

denied sub nom. Nottingham v. United States, 510 U.S.

1123, 114 S. Ct. 1081, 127 L. Ed. 2d 398 (1994); Depree

v. Thomas, 946 F.2d 784, 796 (11th Cir. 1991) (applying

‘‘must have known’’ standard from Henry to question

of agency); Thomas v. Cox, 708 F.2d 132, 136 (4th Cir.)

(‘‘The point at which agency—hence proper attribution—for this purpose arises out of a government-citizen relationship is not subject to any bright-line test.

But we think a general benchmark can be derived from

Henry, [in which] the agency question did figure in the

[c]ourt’s factual analysis.’’), cert. denied, 464 U.S. 918,

104 S. Ct. 284, 78 L. Ed. 2d 262 (1983).25

The United States Supreme Court has yet to articulate

a test for determining agency under Massiah. Other

courts, however, have confronted that question directly.

Decisions of this court, in particular, provide some initial instruction in this regard. ‘‘There is no [bright-line]

test for determining when a private citizen is acting as

an agent of the police.’’ State v. Alexander, supra, 197

Conn. 183. ‘‘The existence of an agency relationship

. . . turns upon a number of factual inquiries into the

extent of police involvement with the informant. Those

inquiries include the following: whether the police have

promised the informant a reward for his cooperation

or whether he is self-motivated . . . whether the police

have asked the informant to obtain incriminating evidence and placed him in a position to receive it . . .

and whether the information is secured as part of a

government initiated, [preexisting] plan.’’ (Internal quotation marks omitted.) State v. Swinton, supra, 268

Conn. 855–56; accord State v. Marshall, 882 N.W.2d 68,

91 (Iowa 2016) (‘‘[I]t seems clear . . . that agency

under Massiah does not rely too heavily on traditional

principles of private contract or agency law, but instead

seems closer to the doctrine of state action. The ques-
tion, for constitutional purposes, is whether the actions

of an informant may be fairly attributed to the state.’’),

cert. denied, U.S. , 137 S. Ct. 829, 197 L. Ed. 2d

68 (2017).

The facts underlying State v. Swinton, supra, 268

Conn. 781, serve as a useful starting point. In that case,

a jailhouse informant, who previously had provided

information to the police in unrelated cases, overheard

the defendant making death threats against certain witnesses. Id., 852–53. The informant later met with the

police, told them about the defendant’s statements, and

entered into a formal agreement with the state to serve

as a ‘‘ ‘listening post.’ ’’ Id., 853. After the informant

returned to prison, the defendant made further incriminating statements. Id. The trial court found that the

nature of the informant’s relationship had changed

when he entered into a formal agreement with the

police. Id., 853–54. Specifically, the trial court found

that, before the meeting, there was ‘‘no evidence whatsoever that the police had instructed [the informant] to

gather information about [the defendant’s] case, about

crimes in general, or about any other case in particular,

nor [was] there any evidence that the police had indicated to [the informant] that he would be rewarded

in any way by providing information . . . .’’ (Internal

quotation marks omitted.) Id., 857. This court agreed,

noting that, although the informant had assisted the

police previously and ‘‘had some expectation that he

would benefit from providing information . . . there

was no evidence that the government had directed or

steered the informant toward the defendant.’’ Id., 858.

Neither the trial court in that case nor this court, however, had any difficulty concluding that the informant

was a government agent after entering into a formal

agreement with the state.26 Id., 859.

Cases from other jurisdictions help to draw the line

between entrepreneur and agent more precisely. The

United States Court of Appeals for the Second Circuit,27

for example, has held that ‘‘[a]n informant becomes a

government agent vis-a`-vis a defendant when the informant is instructed by the police to get information about

[that] particular defendant.’’ (Internal quotation marks

omitted.) United States v. Whitten, 610 F.3d 168, 193

(2d Cir. 2010); see also United States v. LaBare, 191

F.3d 60, 65 (1st Cir. 1999); Moore v. United States, 178

F.3d 994, 999 (8th Cir.), cert. denied, 528 U.S. 943, 120

S. Ct. 356, 145 L. Ed. 2d 278 (1999).28

Other courts have looked at the government’s relationship with the informant more broadly and examined

the record for, among other things,29 evidence of promises or the provision of some benefit. See Thompson v.

Davis, 916 F.3d 444, 455 (5th Cir. 2019) (‘‘[t]o determine

whether an informant was a government agent for purposes of a Massiah claim, the court asks whether the

informant was promised, reasonably led to believe, or
actually received a benefit in exchange for soliciting

information from the defendant . . . and whether he

acted pursuant to instructions from the [s]tate, or otherwise submitted to the [s]tate’s control’’); United States

v. Johnson, supra, 4 F.3d 910–11 (agency may be supported by express or implied quid pro quo); see also

Ayers v. Hudson, supra, 623 F.3d 311 (‘‘although direct

written or oral instructions by the [s]tate to a jailhouse

informant to obtain evidence from a defendant would

be sufficient to demonstrate agency, it is not the only

relevant factor’’); Depree v. Thomas, supra, 946 F.2d

793–94 (‘‘[t]here is, by necessity, no bright-line rule for

determining whether an individual is a government

agent for purposes of the sixth amendment right to

counsel’’).

Courts have reached a general consensus that an

agency relationship may be established through either

implicit or explicit conduct. See State v. Marshall,

supra, 882 N.W.2d 91 (citing cases). Indeed, requiring a

defendant to produce admissible evidence of an explicit

agreement, promise, or instruction as a predicate to

relief would substantially diminish the protections

afforded under Massiah. See Ayers v. Hudson, supra,

623 F.3d 312 (‘‘[t]o hold otherwise would allow the

[s]tate to accomplish ‘with a wink and a nod’ what it

cannot do overtly’’). Requiring proof of formal arrangements is also in tension with the affirmative obligation

to protect a defendant’s right to counsel imposed by the

United States Supreme Court. See Maine v. Moulton,

supra, 474 U.S. 171.

The trial court in the present case correctly determined that the record does not evince an express or

formal agreement between Pladsen and Weaver. However, this is also not a case in which the state met

with a jailhouse informant only after the incriminating

statements had been elicited. See, e.g., State v. Swinton,

supra, 268 Conn. 857. Accordingly, we must determine

whether Pladsen’s conduct after meeting with Weaver

was, in light of all the facts presented, fairly attributable

to the state. See United States v. Henry, supra, 447 U.S.

270; State v. Marshall, supra, 882 N.W.2d 91. Although

the question is a close one in this case, we believe that,

on balance, Pladsen’s efforts to procure incriminating

statements from the defendant during the course of the

underlying trial were not the result of mere ‘‘luck or

happenstance . . . .’’ Maine v. Moulton, supra, 474 U.S.

176. Rather, we conclude that those efforts are fairly

attributable to the state.

First, the meeting between Pladsen and Weaver

placed a significant emphasis on what useful information Pladsen might obtain as the result of his future

assistance. Indeed, Pladsen did not convey any information of importance to Weaver during their initial meeting

at Northern. Instead, the two discussed the possibility

that Pladsen could elicit, and perhaps record, addi-
tional incriminating statements from the defendant at

some later point in time. Although the state is correct

to note that Weaver conditioned any formal plans on

approval by the Office of the State’s Attorney, the content of this particular conversation indicates, at the very

least, that the prospect of such assistance would be

considered.

Second, the meeting at Northern appears to have

focused Pladsen’s efforts on producing a particular type

of evidence. Pladsen’s letter to Weaver offered to provide information against the defendant but referenced

only unrelated criminal charges.30 During the meeting

that followed, Weaver and Pladsen expressly discussed

the defendant’s involvement in the victim’s death.

Weaver asked Pladsen if he would be comfortable wearing a wire, plainly stated that the police were ‘‘always

interested’’ in verifiable information from reliable

sources, and then left Pladsen with his contact information. In this context, one could readily infer that the

state was principally interested in objectively verifiable

forms of evidence regarding the defendant’s involvement in this particular case, such as a recording or

writing. Although Weaver made no explicit requests

during this meeting, the handwritten note that Pladsen

ultimately produced during the state’s case-in-chief mirrored those requirements precisely.31

Third, Pladsen clearly sought assurance from Weaver

that a benefit would be made available in exchange for

his cooperation. See footnote 11 of this opinion. Weaver

said that he could not personally make any promises,

but his response (1) informed Pladsen that the Office

of the State’s Attorney would have to approve any ‘‘deals,’’

and (2) made Pladsen ‘‘generally aware’’ of the fact that

‘‘any information received’’ would be conveyed to the

Office of the State’s Attorney. Weaver said that he would

be willing to listen to anything Pladsen had to say, and

Pladsen said that he understood. Although Weaver did

not connect these dots in explicit terms, the presence

of such express language is not necessarily required

for the reasons stated previously. See State v. Arroyo,

292 Conn. 558, 568, 973 A.2d 1254 (2009) (‘‘the expectation of a [r]eward for testifying is a systemic reality . . .

even where the informant has not received an explicit

promise of a reward’’ (citation omitted; internal quotation marks omitted)), cert. denied, 559 U.S. 911, 130 S.

Ct. 1296, 175 L. Ed. 2d 1086 (2010); see also McBeath v.

Commonwealth, 244 S.W.3d 22, 33–34 (Ky. 2007) (there

was some evidence that informant acted with expectation of future benefit when officer responded to informant’s inquiry by stating ‘‘ ‘[t]hat’s up to the prosecutor’ ’’).

The fact that the state did not object to Pladsen’s

attempt to pursue a modification of his twenty-five year

sentence is also relevant.32 As we noted previously, Pladsen’s testimony indicates that this precise exchange was
discussed during his meeting with Weaver at Northern.

Indeed, the state does not appear to contest that, as a

factual matter, Pladsen ultimately was permitted to

seek a sentence modification as the result of his assistance in the present case. Although Pladsen’s efforts in

that regard ultimately proved unsuccessful, the state’s

forbearance of its unilateral right to veto such a proceeding in its entirety pursuant to § 53a-39 (b) provided

something objectively valuable in exchange for Pladsen’s cooperation. Cf. United States v. Brink, 39 F.3d

419, 423 n.5 (3d Cir. 1994). In the sixth amendment

context, the provision of such an actual benefit in

exchange for an informant’s cooperation serves as at

least some evidence of agency. See United States v.

Johnson, supra, 4 F.3d 910–11; United States v. York,

933 F.2d 1343, 1358 (7th Cir.) (overruled on other

grounds by Wilson v. Williams, 182 F.3d 562 (7th Cir.

1999)), cert. denied, 502 U.S. 916, 112 S. Ct. 321, 116 L.

Ed. 2d 262 (1991); United States v. Surridge, 687 F.2d

250, 254 (8th Cir.), cert. denied, 459 U.S. 1044, 103 S.

Ct. 465, 74 L. Ed. 2d 614 (1982).

Finally, the sixth amendment concerns in the present

case must be viewed in light of the defendant’s confinement. As the United States Supreme Court has noted,

‘‘the mere fact of custody imposes pressures on the

accused; confinement may bring into play subtle influences that will make him particularly susceptible to

the ploys of undercover [g]overnment agents.’’ United

States v. Henry, supra, 447 U.S. 274; see Matteo v. Superintendent, SCI Albion, supra, 171 F.3d 895; see also

Illinois v. Perkins, 496 U.S. 292, 307, 110 S. Ct. 2394, 110

L. Ed. 2d 243 (1990) (Marshall, J., dissenting) (‘‘Custody

works to the [s]tate’s advantage in obtaining incriminating information. The psychological pressures inherent

in confinement increase the suspect’s anxiety, making

him likely to seek relief by talking with others.’’). In

this context, ‘‘the government has long been on notice

that the use of prison informants risks treading on the

constitutional rights of an accused . . . .’’ United

States v. Stevens, 83 F.3d 60, 65 (2d Cir.), cert. denied,

519 U.S. 902, 117 S. Ct. 255, 136 L. Ed. 2d 181 (1996).33

To summarize, Weaver met with Pladsen and

expressed an interest in obtaining verifiable evidence of

incriminating statements from this particular defendant

regarding this particular case. Although there was no

‘‘agreement,’’ ‘‘contract,’’ ‘‘mutual understanding,’’ or

‘‘meeting of the minds,’’ the two expressly discussed

Pladsen’s desire for a benefit in exchange for his cooperation in the present case, and, in fact, the state actually

provided such a benefit to Pladsen after the desired

evidence was produced. Although the record does not

evince any particular ‘‘plan’’ or ‘‘instruction,’’ Weaver

knew from the initial letter that Pladsen had strong

incentives to cooperate as the result of his incarceration

and consecutive sentences, had already gained the

defendant’s trust, and was in a uniquely strong position
to question the defendant at length. After Weaver told

Pladsen that he was interested in hearing new evidence

relating to the victim’s death—by, for example, suggesting the use of a wire—additional control would

have been superfluous. We conclude that the state

either knew or should have known that such a conversation was likely to end in further deliberate elicitation.34

Notwithstanding the eventual likelihood of such

efforts by Pladsen, very little was done to protect the

defendant’s sixth amendment rights. During the meeting at Northern, Weaver could have expressly instructed

Pladsen to cease deliberately eliciting information from

the defendant or to avoid conversations regarding the

present case until the Office of the State’s Attorney

could provide guidance on how to proceed. Although

the Office of the State’s Attorney ultimately instructed

Weaver not to pursue this avenue, that fact was never

communicated to Pladsen. Weaver’s general admonition that any plans or deals would have to be formally

approved, the impact of which is unclear; see footnote

12 of this opinion; was ‘‘a far cry from the express

and appropriate warnings’’ that should have been given.

State v. Howell, Superior Court, judicial district of New

Britain, Docket No. CR-05-222048-S (January 30, 2007)

(Sheldon, J.).35 On the basis of the record presently

before us, we simply cannot conclude that the state

has satisfied its affirmative obligation under Massiah

and its progeny to respect and preserve the defendant’s

invocation of his constitutional right to counsel. See

Maine v. Moulton, supra, 474 U.S. 171.

The trial court’s remaining findings of historical fact

do not alter this analysis. Although Pladsen was housed

with the defendant by chance, that same fact was of

no moment in United States v. Henry, supra, 447 U.S.

268. Likewise, the fact that Pladsen initiated contact

with the police does not diminish the possibility that

the state subsequently took advantage of the opportunity that contact created. See Maine v. Moulton, supra,

474 U.S. 176 (‘‘knowing exploitation by the [s]tate of

an opportunity to confront the accused without counsel

being present is as much a breach of the [s]tate’s obligation not to circumvent the right to the assistance of

counsel as is the intentional creation of such an opportunity’’). Finally, although the defendant’s subjective

knowledge that Pladsen was speaking with Weaver may

be relevant to an analysis of waiver; see United States

v. Henry, supra, 273; the question of agency must be

resolved by an examination of the facts relating to the

nature of the relationship between the state and the

defendant’s interrogator.36

For the foregoing reasons, we conclude that a scrupulous examination of the undisputed facts contained

within the record of the present case establishes that

the defendant has satisfied his burden of demonstrating

the existence of an agency relationship under Massiah.
The trial court’s denial of the motion to suppress Pladsen’s testimony was, therefore, improper. As a result,

the defendant is entitled to a new trial.

II

The defendant next claims that there is insufficient

evidence that he had ‘‘remain[ed] unlawfully’’ in the

victim’s apartment, as required to sustain a conviction

on the charge of burglary in the first degree under

General Statutes (Rev. to 2001) § 53a-101 (a) (2).37 The

defendant’s sole argument in support of this claim is

that State v. Allen, 216 Conn. 367, 382, 579 A.2d 1066

(1990), should be overruled because it ‘‘impermissibly

merges the [element] of remaining unlawfully and the

intent to commit a crime’’ by holding that proof of any

indoor criminal act satisfies both elements. The state

agrees with the defendant’s reading of Allen but nevertheless argues that its holding should be allowed to

stand as settled law. We conclude, however, that the

holding of that case stands for the far narrower proposition that the state may prove an unlawful remaining by

producing evidence that a defendant has engaged in

conduct that was likely to terrorize occupants. State v.

Allen, supra, 382–84. For the reasons that follow, we

decline the defendant’s invitation to overrule that holding.

Although this claim is framed as a question of evidentiary sufficiency, the issue presented relates to the

proper construction of this state’s burglary statutes and,

more particularly, the scope of the phrase ‘‘enters or

remains unlawfully . . . .’’ General Statutes (Rev. to

2001) § 53a-101 (a). The question of whether our construction of that statutory language in Allen should be

overruled raises an issue of law that is subject to plenary

review. See, e.g., State v. Salamon, 287 Conn. 509, 529,

949 A.2d 1092 (2008); see also, e.g., Spiotti v. Wolcott,

326 Conn. 190, 195, 163 A.3d 46 (2017).

‘‘The doctrine of stare decisis counsels that a court

should not overrule its earlier decisions unless the most

cogent reasons and inescapable logic require it.’’ (Internal quotation marks omitted.) Commission on Human

Rights & Opportunities v. Sullivan, 285 Conn. 208, 216,

939 A.2d 541 (2008). ‘‘In evaluating the force of stare

decisis, our case law dictates that we should be especially wary of overturning a decision that involves the

construction of a statute. . . . When we construe a

statute, we act not as plenary lawgivers but as surrogates for another policy maker, [that is] the legislature.

In our role as surrogates, our only responsibility is to

determine what the legislature, within constitutional

limits, intended to do. Sometimes, when we have made

such a determination, the legislature instructs us that

we have misconstrued its intentions. We are bound by

the instructions so provided. . . . More often, however, the legislature takes no further action to clarify

its intentions. Time and again, we have characterized
the failure of the legislature to take corrective action

as manifesting the legislature’s acquiescence in our construction of a statute. . . . Once an appropriate interval to permit legislative reconsideration has passed

without corrective legislative action, the inference of

legislative acquiescence places a significant jurisprudential limitation on our own authority to reconsider

the merits of our earlier decision.’’ (Internal quotation

marks omitted.) Id., 216–17.

We begin by setting forth the relevant statutory language. General Statutes (Rev. to 2001) § 53a-101 (a) (2)

provides in relevant part that ‘‘[a] person is guilty of

burglary in the first degree when he enters or remains

unlawfully in a building with intent to commit a crime

therein and . . . in the course of committing the

offense, he intentionally, knowingly or recklessly

inflicts or attempts to inflict bodily injury on anyone.’’38

General Statutes (Rev. to 2001) § 53a-100 (b), in turn,

provides that ‘‘[a] person ‘enters or remains unlawfully’

in or upon premises when the premises, at the time of

such entry or remaining, are not open to the public and

when the actor is not otherwise licensed or privileged

to do so.’’39

In State v. Allen, supra, 216 Conn. 379, this court

considered whether there was sufficient evidence to

support a conviction of burglary in the first degree. In

addressing that claim, we began by noting that the

phrase ‘‘licensed or privileged’’ was ‘‘meant as a unitary

phrase, rather than as a reference to two separate concepts.’’ (Internal quotation marks omitted.) Id., 380.

Drawing from a previous Appellate Court decision, we

explained: ‘‘A license in real property is defined as a

personal, revocable, and unassignable privilege, conferred either by writing or parol, to do one or more

acts on land without possessing any interest therein.’’

(Emphasis in original; internal quotation marks omitted.) Id., quoting State v. Grant, 6 Conn. App. 24, 29,

502 A.2d 945 (1986).

In Allen, the evidence showed that the defendant had

entered the subject premises, a condominium, with an

accomplice who had a key. State v. Allen, supra, 216

Conn. 381. The defendant was then led upstairs where

the occupant of the home was tied up, unclothed, and

gagged. Id., 381–82. Although the victim looked to the

defendant for assistance, none was given. Id. Instead,

the defendant stole some of the victim’s property and

watched while his accomplice choked the victim. Id.,

382. On the basis of these facts, this court rejected the

defendant’s claim that there was insufficient evidence

of an unlawful remaining. Id. Specifically, we reasoned

that, ‘‘even if the defendant initially entered the victim’s

condominium lawfully, it is clear that consent to remain

was implicitly withdrawn and thus that the [defendant]

unlawfully remained within the meaning of the statute.’’

(Internal quotation marks omitted.) Id.
In Allen, this court distinguished State v. Thomas,

210 Conn. 199, 204, 554 A.2d 1048 (1989), a case that

involved a convenience store robbery. We indicated

that the holding of Thomas—namely, that ‘‘a defendant

does not lose his status as a member of the public by

manifesting a criminal intent’’—was relevant only in

cases in which the premises were held ‘‘ ‘open to the

public’ ’’ and, therefore, did ‘‘not apply to a private

dwelling that requires the continued consent of its occupant.’’40 State v. Allen, supra, 216 Conn. 383–84. We

then reiterated that the purpose of the statutory phrase

‘‘enters or remains unlawfully’’ is ‘‘to make clear that

only the kind of entry or remaining [that] is likely to

terrorize occupants is prohibited by the crime of burglary.’’ (Internal quotation marks omitted.) Id., 384. In

Allen, we readily concluded that ‘‘the element of terror

was present’’ and that ‘‘seeing the victim naked, gagged,

and tied up on the floor, and seeing [his accomplice]

threaten, strike and choke the victim while the victim,

in terror, looked for help, all clearly indicated to the

defendant that, even if there were consent for his initially entering the condominium, it had been [implicitly]

withdrawn.’’ Id.

The defendant in the present case suggests that Allen

‘‘conflate[s] the elements of intent and unlawful remaining.’’ Specifically, the defendant asserts that our reasoning in that case implies that ‘‘a person’s license to be

on the property is revoked simply because he commits

a crime inside the premises . . . .’’ Put differently, the

defendant claims that, under Allen, ‘‘every person who

commits a crime while inside a building also commits

a burglary . . . .’’ The defendant argues that, instead,

this court should restrict unlawful remaining to surreptitious conduct.41 In presenting these arguments, the

defendant relies on case law from other jurisdictions,

this state’s plain meaning rule, as embodied in General

Statutes § 1-2z, and various cannons of statutory construction.

Neither Allen nor its progeny, however, supports the

defendant’s interpretation of this court’s reasoning.

Indeed, that case was expressly dependent on the victim’s sense of terror. Broadening the holding of that

case to reach any indoor criminal act would not only

dispense with that requirement but also with the need

for any occupants at all. Although such facts are not

always required for the commission of a burglary; compare General Statutes § 53a-102 (a) (occupancy is

required for burglary in second degree) with General

Statutes § 53a-101 (a) (3) (occupancy is not required for

burglary in first degree); or for a finding of an unlawful

remaining itself; see footnote 40 of this opinion; the

fact that the defendant’s presence was ‘‘likely to terrorize’’ the victim in Allen was indispensable to our conclusion that any existing license or privilege to remain

had been implicitly revoked. (Internal quotation marks
omitted.) State v. Allen, supra, 216 Conn. 384.

This narrower reading of Allen is bolstered by the

fact that the Appellate Court has consistently restricted

its application to cases in which the state has presented

evidence that the defendant engaged in conduct likely

to terrorize occupants. See, e.g., State v. Marsan, 192

Conn. App. 49, 53–54, 56–61, 216 A.3d 818 (declining to

extend Allen to case in which home aide stole from

client’s unoccupied home), cert. denied, 333 Conn. 939,

218 A.3d 1049 (2019); State v. Bharrat, 129 Conn. App.

1, 26–27, 20 A.3d 9 (implicit revocation of license or

privilege to remain when defendant awoke victim by

stabbing him to death with knife), cert. denied, 302

Conn. 905, 23 A.3d 1243 (2011); State v. Morocho, 93

Conn. App. 205, 219, 888 A.2d 164 (‘‘whatever possible

license the defendant thought he had to enter the victim’s bedroom . . . that license was withdrawn when

he refused to identify himself, charged toward the victim, lay on top of her and attempted to kiss and to

touch her all over her body’’), cert. denied, 277 Conn.

915, 895 A.2d 792 (2006); State v. Brooks, 88 Conn. App.

204, 208 n.2, 868 A.2d 778 (‘‘[e]ven if the evidence could

be construed to show an implicit consent to the defendant’s entry into [the] apartment, [a] vicious assault

. . . was clearly not within the scope of that consent’’),

cert. denied, 273 Conn. 933, 873 A.2d 1001 (2005); State

v. Gelormino, 24 Conn. App. 563, 572, 590 A.2d 480

(‘‘even if the evidence could be construed to show the

victim’s implicit consent to the defendant’s entry, the

vicious assault perpetrated on the victim was clearly

not within the scope of that consent’’), cert. denied,

219 Conn. 911, 593 A.2d 136 (1991); see also State v.

Stagnitta, 74 Conn. App. 607, 615, 813 A.2d 1033

(although defendant’s status as employee may have provided license or privilege to enter private office while

restaurant was closed to public, ‘‘that privilege did not

extend to entering the office displaying an eight to ten

inch knife and demanding money’’), cert. denied, 263

Conn. 902, 819 A.2d 838 (2003). The defendant has not

cited, and our research has not discovered, any appellate authority extending the holding of Allen beyond

this context.

The fact that our legislature has declined to express

any disagreement with this line of cases over the course

of nearly three decades counsels strongly against overruling Allen in favor of a more restrictive statutory

interpretation. See, e.g., Commission on Human Rights

& Opportunities v. Sullivan, supra, 285 Conn. 216–17.

This is especially true because the legislature has made

unrelated amendments to the relevant statutory scheme.

See Stuart v. Stuart, 297 Conn. 26, 47, 996 A.2d 259

(2010) (argument in favor of ‘‘[l]egislative concurrence

is particularly strong [when] the legislature makes unrelated amendments in the same statute’’ (internal quotation marks omitted)). Specifically, our legislature passed

a series of comprehensive amendments to this state’s
burglary statutes in 2008 that not only retained the

phrase ‘‘enters or remains unlawfully’’ in § 53a-101 (a)

and the existing statutory definition set forth in § 53a100 (b), but also added several new instances of that

exact same statutory phrase. Public Acts, Spec. Sess.,

January, 2008, No. 08-1, §§ 1, 2 and 4. We may presume

that the legislature was aware of Allen and its progeny

when doing so. See, e.g., R.C. Equity Group, LLC v.

Zoning Commission, 285 Conn. 240, 257 n.20, 939 A.2d

1122 (2008).

The defendant’s various arguments do not warrant

the opposite result. The defendant, citing § 1-2z, encourages this court to abandon the existing line of cases

and to begin the process of statutory construction anew.

We decline to do so. See, e.g., Kasica v. Columbia, 309

Conn. 85, 93–94 and n.10, 70 A.3d 1 (2013) (in interpreting statutory text, this court is bound by our prior

constructions of statute); Hummel v. Marten Transport, Ltd., 282 Conn. 477, 501, 923 A.2d 657 (2007)

(enactment of § 1-2z did not overrule existing case law).

Although an argument in favor of overruling established

precedent may well be strengthened by tension with a

statute’s plain meaning, we can discern no such conflict

in the present case. When a building is not open to the

public, the relevant statutory inquiry turns on whether

a defendant was ‘‘licensed or privileged’’ to remain.

General Statutes (Rev. to 2001) § 53a-100 (b). The holding of Allen, which merely stated the standard for proving the absence of such a license or privilege in a particular factual setting, is facially consistent with that

requirement. Finally, the defendant’s argument that

Allen results in statutory surplusage because it dispenses with the element of an unlawful entry or

remaining is logically dependent on the premise that

any indoor criminal conduct necessarily gives rise to

an implicit revocation. Because, as we previously indicated, the holding in Allen extends only to conduct

by a defendant that is ‘‘likely to terrorize occupants’’;

(internal quotation marks omitted) State v. Allen, supra,

216 Conn. 384; the distinct elements of the crime of

burglary remain.

The defendant is correct that intermediate appellate

courts in New York have declined to conclude that viop

lent conduct gives rise to an implicit revocation of a

defendant’s license or privilege to remain. See People

v. Bowen, 17 App. Div. 3d 1054, 1055, 794 N.Y.S.2d

203, appeal denied, 5 N.Y.3d 759, 834 N.E.2d 1264, 801

N.Y.S.2d 254 (2005); People v. Konikov, 160 App. Div.

2d 146, 152–53, 559 N.Y.S.2d 901, appeal denied, 76

N.Y.2d 941, 564 N.E.2d 680, 563 N.Y.S.2d 70 (1990). The

conclusion reached inAllen, however, is consistent with

the law in states other than New York. See Davis v.

State, 737 So. 2d 480, 484 (Ala. 1999) (‘‘[E]vidence of

a struggle giving rise to the inference of an unlawful

remaining is supplied by [the defendant’s] choice to kill

by a [less than instantaneous] technique of strangula-
tion and by his use of three nonfatal stab wounds to

the victim’s lower back. Based on the circumstances

suggested by the evidence, the jury reasonably could

have found that [the defendant], from the point at which

he began committing his criminal acts, ‘remain[ed]

unlawfully’ in [the victim’s] home with the intent to

commit a crime.’’); Sparre v. State, 164 So. 3d 1183, 1200–

1201 (Fla.) (defendant’s invitation to premises was

‘‘effectively rescinded’’ when victim began attempting

futilely to defend herself from fatal attack), cert. denied,

U.S. , 136 S. Ct. 411, 193 L. Ed. 2d 325 (2015);

State v. Walker, 600 N.W.2d 606, 610 (Iowa 1999) (victim’s begging and resistance to assault amounted to

implicit revocation of defendant’s license to remain).

Notwithstanding common origins, modern burglary law

often differs significantly between jurisdictions. See

Quarles v. United States, U.S. , 139 S. Ct. 1872,

1879, 204 L. Ed. 2d 200 (2019). Such variations are,

without more, generally insufficient to overcome the

weighty considerations attendant to stare decisis.42 See,

e.g., Graham v. Commissioner of Transportation, 330

Conn. 400, 420, 195 A.3d 664 (2018).

In light of the foregoing, we decline the defendant’s

invitation to overrule Allen and its progeny. The defendant advances no argument on appeal that the conduct

at issue in the present case was unlikely to terrorize

the victim. As a result, the defendant’s sufficiency of

the evidence claim relating to the crime of burglary in

the first degree must fail.

III

Finally, we address the defendant’s claim of instructional error because we conclude that the issue of thirdparty culpability is likely to arise on remand. The defendant contends that a third-party culpability instruction

was reasonably supported by the evidence relating to

unidentified male DNA discovered on the victim’s vaginal swab, her shoulder, and her bedroom doorframe.

In response, the state argues that this evidence was

insufficient to support such an instruction.43 Specifically, the state argues that this evidence establishes

only that ‘‘the victim may have socialized, done drugs,

and had sex with various men in the days preceding

her death’’ and, therefore, fails to establish a direct

connection ‘‘between any particular third party and the

crimes against the victim . . . .’’

The following additional facts and procedural history

are relevant to our discussion of this claim. Carll Ladd,

the supervisor of the DNA section of the state forensic

laboratory, testified at trial that a particular test had

indicated that both the defendant and a second, unidentified male were contributors to DNA on the victim’s

vaginal swab.44 Ladd also testified that the defendant

was excluded as a contributor to certain unidentified

male DNA in saliva discovered on the victim’s shoulder.45 Finally, Ladd testified that the defendant also was
excluded as a contributor to certain unidentified male

DNA discovered at the location of a transfer bloodstain

on the victim’s bedroom doorframe.46 Ladd testified that

he did not know precisely when any of this male DNA

was deposited.

The defendant’s revised request to charge included

the following proposed instruction regarding evidence

of third-party involvement: ‘‘You are hereby instructed

that a defendant may offer proof [that] indicates that

a third party, and not the defendant, committed some

of the acts for which the defendant is on trial. The

defendant must, however, show some evidence which,

if believed, tends to directly connect a third party to

said acts. The primary object of the third-party suspect

testimony is not to prove the guilt of the third party

but to raise a reasonable doubt about the guilt of the

defendant. In the present case, you have heard evidence

concerning the presence of the DNA of a person or

persons other than [the defendant] and [the victim] at

the scene of the crime. If that evidence leaves you with

a reasonable doubt as to [the defendant’s] guilt, you

must find him not guilty.’’47

The state objected to this proposed instruction at a

charging conference held on June 12, 2007. In response,

defense counsel asserted that such an instruction was

warranted by ‘‘the forensics’’ proffered at trial, citing

State v. Cerreta, 260 Conn. 251, 260–62, 796 A.2d 1176

(2002). After hearing arguments, the trial court concluded that the defendant had failed to establish entitlement to a third-party culpability instruction.

‘‘In determining whether the trial court improperly

refused a request to charge, [w]e . . . review the evidence presented at trial in the light most favorable to

supporting the . . . proposed charge. . . . A request

to charge [that] is relevant to the issues of [a] case and

[that] is an accurate statement of the law must be given.

. . . If, however, the evidence would not reasonably

support a finding of the particular issue, the trial court

has a duty not to submit it to the jury. . . . Thus, a

trial court should instruct the jury in accordance with

a party’s request to charge [only] if the proposed instructions are reasonably supported by the evidence.’’ (Internal quotation marks omitted.) State v. Schovanec, 326

Conn. 310, 318–19, 163 A.3d 581 (2017). This court has

previously stated that ‘‘the very standards governing

the admissibility of [third-party] culpability evidence

also should serve as the standards governing a trial

court’s decision of whether to submit a requested [thirdparty] culpability charge to the jury.’’ State v. Arroyo,

284 Conn. 597, 608–609, 935 A.2d 975 (2007).

We note that, although Arroyo did not expressly state

a particular standard of review for claims of instructional error related to third-party culpability, this court

has previously reviewed such claims under an abuse

of discretion standard. See State v. Schovanec, supra,
326 Conn. 320–23; State v. Jackson, 304 Conn. 383, 424,

40 A.3d 290 (2012); see also State v. James, 141 Conn.

App. 124, 137, 60 A.3d 1011, cert. denied, 308 Conn. 932,

64 A.3d 331 (2013); cf. State v. Ceballos, 266 Conn. 364,

422, 832 A.2d 14 (2003) (‘‘[w]e review a trial court’s

refusal to give a child credibility instruction for abuse

of discretion because that instruction is not for the

statement of any rule of law but for a cautionary comment upon the evidence’’ (internal quotation marks

omitted)); State v. Hines, 243 Conn. 796, 816, 709 A.2d

522 (1998) (‘‘[t]he decision whether to give an instruction on flight, as well as the content of such an instruction, if given, should be left to the sound discretion of

the trial court’’).

The admissibility of third-party culpability evidence

is generally ‘‘governed by the rules relating to relevancy.

. . . Relevant evidence is evidence having any tendency to make the existence of any fact that is material

to the determination of the proceeding more probable

or less probable than it would be without the evidence.

. . . [E]vidence that establishes a direct connection

between a third party and the charged offense is relevant to the central question before the jury, namely,

whether a reasonable doubt exists as to whether the

defendant committed the offense. Evidence that [raises]

only a bare suspicion that a third party, rather than

the defendant, committed the charged offense [is not]

relevant to the jury’s determination.’’ (Internal quotation marks omitted.) State v. Schovanec, supra, 326

Conn. 319; see also State v. Baltas, 311 Conn. 786, 810,

91 A.3d 384 (2014) (‘‘in explaining the requirement that

the proffered evidence establish a direct connection to

a third party, rather than raise merely a bare suspicion

regarding a third party, we have stated [that] [s]uch

evidence is relevant, exculpatory evidence, rather than

merely tenuous evidence of [third-party] culpability’’

(internal quotation marks omitted)).

‘‘[I]n some cases, the location of [physical] evidence

at a particular crime scene will give rise to a reasonable

inference that the evidence was left at the scene by a

perpetrator of the crime, such as when the relationship

between the evidence and crime scene is close and

direct . . . .’’ (Citation omitted.) State v. West, 274

Conn. 605, 626–27, 877 A.2d 787, cert. denied, 546 U.S.

1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005). This nexus,

however, necessarily attenuates with distance. See id.,

627 (concluding that evidence discovered ‘‘at the

periphery of the crime scene’’ lacked probative value).

A comparison of our decisions in Cerreta and West is

illustrative of this principle.

In State v. Cerreta, supra, 260 Conn. 253, this court

considered a claim that third-party culpability evidence

was improperly excluded in violation of the defendant’s

right to present a defense under the sixth and fourteenth

amendments to the United States constitution. The vic-
tim in that case, a seventy-four year old woman, died

from asphyxia after being bound with a sock in her

mouth. Id., 254. The defendant, who had been charged

with murder, sought to introduce forensic evidence connected to the crime scene. Id., 253. Specifically, the

defendant submitted evidence indicating that hairs

found on both the victim’s body and the ligatures used

to bind her had not come from him. Id., 257–59. The

defendant also sought to introduce evidence that fingerprints from a third party had been discovered on various

personal effects strewn about the victim’s body. Id., 254,

259. The trial court excluded these pieces of forensic

evidence on relevancy grounds. Id., 259. On appeal, the

defendant claimed that the proffered evidence should

have been admitted because it ‘‘was relevant to the

question of whether someone [else had] committed the

crime . . . charged.’’ Id. The state responded by

arguing, among other things, that the forensic evidence

stopped short of ‘‘conclusively exonerating the defendant’’; id., 260; and was irrelevant ‘‘because it was

impossible to determine exactly when the hair and fingerprints were left where the police discovered them.’’

Id., 263.

This court agreed with the defendant, concluding that

it could ‘‘discern no reasonable basis for concluding

that the exculpatory evidence the defendant sought to

introduce was irrelevant.’’ Id., 262. Specifically, we held

that ‘‘[e]vidence that a third party’s hair and fingerprints

were found at the crime scene [raised] more than a

bare suspicion that someone other than the defendant

may have committed the crime. Rather, the excluded

evidence established a direct connection between the

unidentified source of hair and fingerprints and the

scene of the murder. Such evidence meets the threshold

requirement that it directly connect a third party to the

crime.’’48 Id., 263. We then rejected the state’s arguments

to the contrary: ‘‘The hair and fingerprints were recovered not from the periphery of the crime scene but from

the victim’s body, the ligatures used to bind her hands

and feet, and the personal effects on and around her

body. This evidence was central to the only contested

issue at trial: the identity of the perpetrator. Although

it may be the case that this evidence would not have

exonerated the defendant unequivocally, such is not

the standard for relevance. All that must be shown is

that the evidence tends to support the conclusion for

which it is offered, even if it does so only to a slight

degree.’’ Id.

By contrast, in State v. West, supra, 274 Conn. 610,

this court concluded that the trial court did not abuse

its discretion by excluding certain forensic evidence

recovered from a crime scene. The defendant in that

case, who was charged with murder, sought to introduce evidence eliminating her as the source of unidentified latent prints discovered in the victim’s home on a

second floor bathroom door and on the doorjamb of a
first floor bedroom. Id., 609, 623. The defendant claimed

‘‘that the unidentified . . . [prints were] relevant, and

therefore admissible, because that evidence established

that a person or persons other than the defendant were

present in those areas of [the] home where the intruder

had gone after entering . . . namely, the second floor

and the first floor master bedroom.’’ Id., 626. We

rejected that argument, concluding that the prints could

have been ‘‘made weeks, months or even years before’’

the crimes at issue. Id. We noted that, although the

location of such evidence can ‘‘give rise to a reasonable

inference that the evidence was left at the scene by

a perpetrator . . . when the relationship between the

evidence and crime scene is close and direct,’’ the prints

at issue in that case ‘‘were located at the periphery of

the crime scene, where . . . they may have been left

by any number of invitees . . . .’’ Id., 626–27. We

remarked that, ‘‘[b]ecause the nexus between the prints

and the crime scene [was] so attenuated, and because

there [were] so many likely explanations for the prints

aside from the mere possibility that they were left by

an unidentified perpetrator, the evidence of the prints

[was] lacking in probative value.’’49 Id., 627. Accordingly,

this court concluded that the trial court did not abuse

its discretion by excluding the unidentified prints that

the defendant had sought to admit. Id.

The evidence forming the basis of the defendant’s

request for a third-party culpability instruction in the

present case was, of course, admitted into evidence

and placed before the jury.50 The trial court’s initial

decision to admit that evidence does not, however, necessarily compel the issuance of a third-party culpability

instruction as a matter of law.51 ‘‘Whether a defendant

has sufficiently established a direct connection between

a third party and the crime with which the defendant

has been charged is necessarily a fact intensive inquiry.’’

State v. Baltas, supra, 311 Conn. 811. A trial court must

make that decision on the basis of the totality of the

evidence actually admitted at trial. See State v. Marshall, 114 Conn. App. 178, 187, 969 A.2d 202 (noting

fluid nature of trials), cert. denied, 292 Conn. 911, 973

A.2d 661 (2009).

In order to determine whether the evidence actually

admitted during the course of the defendant’s trial would

have supported a third-party culpability instruction, we

look to the context surrounding it and the guiding principles set forth in Cerreta and West. See State v. Arroyo,

supra, 284 Conn. 608–609. It cannot be said that two of

the DNA samples found on the victim’s body—namely,

the samples from her vaginal swab and from the saliva

on her shoulder—were recovered from the periphery

of the crime scene. Like the hair in Cerreta, that evidence was recovered directly from the victim’s body.

It is important to note that context, and not proximity alone, is necessary to establish a direct connection

between forensic evidence and a third party to the crime.
In the present case, for example, Ladd gave a ‘‘general

estimate’’ that the unidentified male DNA found on the

victim’s vaginal swab could have lasted for up to three

days. Given this longer time frame, the unidentified

male DNA on the victim’s vaginal swab, in and of itself,

would have been insufficient to require a third-party

culpability instruction as a matter of law. The male DNA

on the victim’s shoulder, however, would have existed

for a more limited duration and was not otherwise

explained by the record. Finally, the unidentified male

DNA on the doorframe of the victim’s bedroom was

recovered from a location that was, undisputedly, covered in the victim’s blood during the commission of the

crimes charged. That fact readily distinguishes it from

the prints on the doorjamb in West.

The state argues that the evidence of the unidentified

male DNA discovered at the crime scene was wholly

irrelevant because ‘‘there was no evidence as to when

any of that DNA had been deposited or to whom it

belonged.’’ The fact that both the source of the DNA and

the exact time that it was deposited remained unknown

does not, however, require a conclusion that the evidence was irrelevant. Indeed, this court readily concluded that the evidence at issue inCerreta was admissible, notwithstanding the absence of proof regarding

those same facts. See State v. Cerreta, supra, 260 Conn.

263 (‘‘The state took the position . . . that the

excluded evidence was unreliable, and therefore irrelevant, because it was impossible to determine exactly

when the hair and fingerprints were left where the

police discovered them. We find no merit in this argument.’’).

Viewing all of the evidence contained in the record

in the light most favorable to supporting the proposed

charge; see, e.g., State v. Schovanec, supra, 326 Conn.

318; we conclude that the defendant satisfied the threshold requirement of establishing a direct connection

between at least some of the unidentified male DNA

discovered in the victim’s apartment and the various

crimes alleged. Because the DNA on the victim’s shoulder and the bedroom doorframe would have reasonably

supported an instruction on third-party culpability, we

conclude that the trial court abused its discretion by

declining to provide such an instruction to the jury.52

The judgment is reversed and the case is remanded

for a new trial.

In this opinion PALMER, McDONALD, D’AURIA,

KAHN and ECKER, Js., concurred.

* The listing of justices reflects their seniority status on this court as of

the date of oral argument.

This case originally was scheduled to be argued before a panel of this

court consisting of Chief Justice Robinson and Justices Palmer, McDonald,

D’Auria, Mullins, Kahn and Ecker. Although Justice Palmer was not present

when the case was argued before the court, he has read the briefs and

appendices, and listened to a recording of the oral argument prior to participating in this decision.

** August 6, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.

1 The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b) (4).

2 The defendant has raised more than two dozen additional claims on

appeal. These claims relate to, inter alia, isolated evidentiary rulings, the

posttrial discovery of evidence, and certain inadvertent mistakes or omissions. Still other claims arise from various tactical decisions. In light of the

information contained in the record and the positions adopted by the parties

in their briefs, we are unable to conclude that such claims are likely to

arise on remand. Accordingly, we decline to review those claims in the

present appeal.

3

In accordance with our policy of protecting the privacy interests of the

victims of sexual assault, we decline to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-

86e; see also, e.g., State v. Weatherspoon, 332 Conn. 531, 536 n.3, 212 A.3d

208 (2019).

4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

5 The defendant’s statement indicated that the victim had attacked him

in the kitchen with a knife. The defendant stated that the resulting struggle

moved to the bedroom and that the victim had eventually asked, ‘‘[w]hat

do you want sex?’’ The defendant allegedly said yes and then had unprotected

sex with the victim. The defendant stated that, after they were done, the

victim attacked him again with the knife. The defendant stated that he then

stabbed the victim, that she stopped moving, and that he left her face

down on the bed. After a police officer noted that there was no mention of

strangulation, the defendant amended his statement to include the fact that

he had used his hands to get the victim to stop making noise.

Several factual discrepancies between this account and the physical evidence discovered at the crime scene were noted at trial and, indeed, remain

contested in the present appeal. The extent to which the defendant’s memory

may have been impaired by drug use, both on the night of the victim’s death

and during his interrogation, also remains disputed.

6 General Statutes (Rev. to 2001) § 53a-54b (5) and (6) proscribe, respectively, murder during the course of a kidnapping and murder during the

course of sexual assault in the first degree. Because the defendant was

charged with these capital offenses, the guilt and penalty phases of the trial

were bifurcated pursuant to General Statutes (Rev. to 2001) § 53a-46a, as

amended by Public Acts 2001, No. 01-151, §§ 1 and 2.

7 Although the defendant was originally sentenced to death on the capital

felony counts, he was subsequently resentenced to a term of life imprisonment without the possibility of release on those charges. See, e.g., State v.

Peeler, 321 Conn. 375, 377, 140 A.3d 811 (2016); State v. Santiago, 318 Conn.

1, 85–86, 122 A.3d 1 (2015).

8 A defendant’s right to counsel under the sixth amendment is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See, e.g., State v. Leconte, 320 Conn.

500, 505 n.2, 131 A.3d 1132 (2016).

9 The record indicates that Pladsen and the defendant occupied cells

close to one another and typically participated in recreation outside of the

presence of other inmates.

10 Although the state’s brief appears to contest whether Weaver made an

affirmative request, the trial court’s factual findings, Pladsen’s testimony,

and the state’s own arguments at trial indicate, at the very least, that the

topic of using a wire was broached by Weaver.

11 Pladsen testified that he had specifically asked Weaver about the possibility of receiving a sentence modification. Weaver testified that Pladsen

did not expressly mention what kind of benefit he was seeking.

12 The record contains conflicting indications regarding the impact of

Weaver’s statement. For example, Pladsen testified that, during this meeting,

he had told Weaver that he ‘‘would try’’ to get more information from the

defendant and that Weaver had not dissuaded him from doing so. Pladsen

also testified that he continued his general ‘‘effort to obtain information

from [the defendant]’’ after the meeting with Weaver. On another occasion,

Pladsen testified: ‘‘I remember telling [Weaver that] I don’t mind going back

trying to get some more information in the meantime, and I remember him

saying, well just let me run it by the . . . state’s attorney first and let’s see

[how] this wire pans out, and he never got back to me.’’ Finally, Pladsen

testified that his decision to ask the defendant to write a note was a ‘‘spur

of the moment type of thing . . . .’’ In light of these discrepancies, we are

unable to agree with the assertion of the concurring and dissenting justice
that the record contains ‘‘[no] evidence that Pladsen ever informed Weaver

that he intended to obtain information from the defendant.’’ Pladsen’s testimony on this point was simply inconsistent.

13 In light of the messages both into and out of Northern, we respectfully

disagree with the contention of the concurring and dissenting justice that

‘‘Weaver never communicated directly with Pladsen’’ in the months following

their meeting at Northern.

14 Pladsen also testified that the defendant became angry later that day

about the fact that the note had been given to the prosecution. Pladsen

testified that he had told the defendant that the note must have been discovered in the trash and that the defendant had then asked him to claim

authorship.

15 The trial court file contains an incorrect notation by the clerk indicating

that the defendant’s motion to suppress Pladsen’s testimony was granted.

16 Pladsen also recounted the defendant’s reaction to the state’s discovery

of the note and the conversation that followed. See footnote 14 of this opinion.

17 Following the defendant’s conviction, the trial court held an evidentiary

hearing pursuant to State v. Floyd, 253 Conn. 700, 732, 756 A.2d 799 (2000),

in order to explore whether the state had, yet failed to disclose, an agreement

with Pladsen at the time of trial, in violation of Brady v. Maryland, 373

U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). During that hearing, the lead

prosecutor at the defendant’s trial, Senior Assistant State’s Attorney John

Fahey, testified that he had made no deals with Pladsen at the time of trial

and that they had not discussed the possibility of a sentence modification.

Fahey testified that he had promised Pladsen only that he would, ‘‘if ever

requested, as a commissioner of the Superior Court, make known to a judge

[the] good, bad and indifferent . . . .’’

Two other witnesses testified at that hearing about the interactions

between Fahey and Pladsen. The first of those witnesses, a corrections

officer who had been assaulted by Pladsen, Karen Stratton White, testified

that Fahey had visited her in 2015 to discuss modification of the twentyfive year sentence that had resulted from that assault. White testified that,

during that discussion, she received the impression that Fahey wanted her

‘‘to go along with Pladsen having [a sentence modification] hearing’’ and

that Fahey had ‘‘given his word’’ because Pladsen ‘‘had helped him with that

other case.’’ The second witness, Pladsen’s mother, Judy Yvonne Pladsen,

testified that she had spoken with Fahey at the time of the defendant’s trial

and that he had ‘‘guaranteed’’ her that the court would modify her son’s

sentence in exchange for providing testimony against the defendant. In

rejecting the defendant’s Brady claim, however, the trial court expressly

declined to credit the testimony of these two witnesses, stating that ‘‘[n]either

was in a position to either confirm or deny the existence of any agreement.’’

18 Records of that proceeding are the proper subject of judicial notice.

See, e.g., Shirley P. v. Norman P., 329 Conn. 648, 660, 189 A.3d 89 (2018).

19 We note that this approach is consistent with the standard of review

applied to the agency prong of Massiah by the majority of the federal courts

of appeals. See, e.g., United States v. Ocean, 904 F.3d 25, 33 (1st Cir. 2018)

(‘‘We review the trial judge’s findings of fact for clear error . . . . We review

de novo [the] constitutional conclusion based on the facts as the trial judge

found them.’’ (Citation omitted.)), cert. denied sub nom. Mitchell v. United

States, U.S. , 139 S. Ct. 931, 202 L. Ed. 2d 656 (2019), and cert. denied,

U.S. , 139 S. Ct. 1362, 203 L. Ed. 2d 596 (2019); United States v.

Birbal, 113 F.3d 342, 345 (2d Cir.) (‘‘review[ing] the [D]istrict [C]ourt’s

conclusions as to constitutional violations de novo, and its findings of fact

for clear error’’), cert. denied, 522 U.S. 976, 118 S. Ct. 433, 139 L. Ed. 2d

333 (1997); United States v. O’Dell, Docket No. 95-1069, 1995 WL 765231,

*3 (7th Cir. December 27, 1995) (decision without published opinion, 73

F.3d 364 (7th Cir. 1995)) (‘‘we conclude as a matter of law that [the informant]

acted as a government agent when he spoke to [the defendant]’’); United

States v. Brink, 39 F.3d 419, 421 (3d Cir. 1994) (‘‘[w]e apply plenary review

to the [D]istrict [C]ourt’s application of legal precepts . . . and clearly erroneous review to its factual findings’’ (citation omitted)); United States v.

Johnson, 4 F.3d 904, 910 (10th Cir. 1993) (reviewing District Court’s conclusion on agency ‘‘under the clearly erroneous standard with respect to the

underlying factual issues but de novo with respect to the ultimate constitutional issue’’), cert. denied, 510 U.S. 1123, 114 S. Ct. 1082, 127 L. Ed. 2d 398

(1994), and cert. denied sub nom. Carroll v. United States, 510 U.S. 1123, 114

S. Ct. 1081, 127 L. Ed. 2d 398 (1994), and cert. denied sub nom. Nottingham

v. United States, 510 U.S. 1123, 114 S. Ct. 1081, 127 L. Ed. 2d 398 (1994);
United States v. Surridge, 687 F.2d 250, 252 (8th Cir.) (‘‘Some courts have

called the determination of whether a person is a government informant or

agent a factual determination. . . . We agree that the determination as to

the relationship or understanding between the police and the informant is

a factual determination. However, beyond this factual determination there

is a legal question: whether the relationship or understanding as found by

the [D]istrict [C]ourt is such that the informant’s questioning has to be

considered government interrogation for constitutional examination.’’ (Citations omitted; footnote omitted.)), cert. denied, 459 U.S. 1044, 103 S. Ct.

465, 74 L. Ed. 2d 614 (1982). But see United States v. Li, 55 F.3d 325, 328

(7th Cir. 1995); United States v. Malik, 680 F.2d 1162, 1165 (7th Cir. 1982);

United States v. Van Scoy, 654 F.2d 257, 261 (3d Cir.), cert. denied, 454 U.S.

1126, 102 S. Ct. 977, 71 L. Ed. 2d 114 (1981).

The concurring and dissenting justice contends that this court’s observation in State v. Alexander, supra, 197 Conn. 185, that agency is ‘‘primarily

a question of fact’’ compels the application of the substantial evidence

standard of review to the trial court’s ultimate conclusion on the question of

agency. This court, however, also has characterized the deliberate elicitation

prong in a similar manner. See State v. Swinton, supra, 268 Conn. 856 (‘‘[t]he

second issue of fact is whether [the informant] ‘deliberately elicited’ the

defendant’s statements’’). Cases from the United States Supreme Court leave

little room for doubt that questions of law abound in that context. In United

States v. Henry, 447 U.S. 264, 268–69, 100 S. Ct. 2183, 65 L. Ed. 2d 115

(1980), for example, the court did not even mention, much less afford

deference to, the trial court’s ultimate conclusion on the question of deliberate elicitation.

20 The concurring and dissenting justice concludes that this precept is

irrelevant to the question of agency under Massiah because that precise

issue was not disputed in Moulton. See footnote 9 of the concurring and

dissenting opinion. We, however, agree with those federal courts of appeals

that read this language as a broader, guiding principle in this unique constitutional context and, accordingly, decline to cabin its import to cases examining deliberate elicitation. See Ayers v. Hudson, 623 F.3d 301, 316 (6th Cir.

2010); United States v. Johnson, 4 F.3d 904, 912 (10th Cir. 1993), cert. denied,

510 U.S. 1123, 114 S. Ct. 1082, 127 L. Ed. 2d 398 (1994), and cert. denied

sub nom. Carroll v. United States, 510 U.S. 1123, 114 S. Ct. 1081, 127 L. Ed.

2d 398 (1994), and cert. denied sub nom. Nottingham v. United States, 510

U.S. 1123, 114 S. Ct. 1081, 127 L. Ed. 2d 398 (1994).

21 In reaching this conclusion, the United States Supreme Court rejected

an argument that the statements should be admissible because the police

were merely fulfilling their duty to continue an investigation. Massiah v.

United States, supra, 377 U.S. 206. Although the court recognized that such

continuing investigations may be proper, it nonetheless concluded that the

defendant’s own incriminating statements ‘‘could not constitutionally be

used by the prosecution as evidence against him at his trial.’’ (Emphasis

in original.) Id., 207.

22 Justice Blackmun authored a vigorous dissent asserting that the majority

effectively had ignored the fact that the informant had been explicitly

instructed not to ask any questions and that, by using phrases such as ‘‘ ‘must

have known’ ’’ and ‘‘ ‘likely,’ ’’ the majority had ‘‘fundamentally restructure[d]’’ Massiah to include even ‘‘ ‘negligent’ ’’ elicitation. United States v.

Henry, supra, 447 U.S. 278–80 (Blackmun, J., dissenting).

23 Indeed, the court asked, ‘‘what use is a defendant’s right to effective

counsel at every stage of a criminal case if, while he is held awaiting trial,

he can be questioned in the absence of counsel until he confesses?’’ (Internal

quotation marks omitted.) Maine v. Moulton, supra, 474 U.S. 171, quoting

Spano v. New York, 360 U.S. 315, 326, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959)

(Douglas, J., concurring).

24 We agree with the concurring and dissenting justice that the state’s

foreknowledge of deliberate elicitation is alone insufficient to give rise to

an agency relationship. Simply put, such a test could result in a constitutional

violation without any state action. See State v. Marshall, 882 N.W.2d 68, 91

(Iowa 2016), cert. denied, U.S. , 137 S. Ct. 829, 197 L. Ed. 2d 68

(2017). We emphasize that some action by the state is always required in

this context; the question of whether such actions suffice to create an agency

relationship, in turn, must be determined by examining whether, in light of

the surrounding context, the state must have known that its own conduct

was likely to result in an infringement of the defendant’s sixth amendment

right to counsel. See Ayers v. Hudson, 623 F.3d 301, 311 (6th Cir. 2010)

(‘‘[i]t is not the government’s intent or overt acts that are important; rather,
it is the likely . . . result of the government’s acts’’ (internal quotation

marks omitted)). In cases in which the state chooses to act, its affirmative

obligation requires it to do so in a manner that ‘‘respect[s] and preserve[s]

the accused’s choice to seek [the] assistance [of counsel].’’ Maine v. Moulton,

supra, 474 U.S. 171.

25 The concurring and dissenting justice’s reliance on Cox to support the

proposition that Henry is irrelevant to the question of agency is, therefore,

inapt. It is also worth noting that, although the concurring and dissenting

justice is correct that a case from the United States Court of Appeals for

the Fifth Circuit has declined to adopt language from Henry as governing

the question of agency, the precise passage that court declined to engraft

looks very similar to the test proposed by the concurring and dissenting

justice. See Creel v. Johnson, 162 F.3d 385, 393 (5th Cir.1998) (‘‘[C]iting

to [Henry], [the defendant] argues that we should consider whether [the

informant] ‘was charged with the task of obtaining information from an

accused.’ Henry involved . . . a clear case of agency, and the [c]ourt only

considered if the agent [was] ‘charged with the task of obtaining information

from an accused’ to determine whether the agent ‘deliberately elicited’ the

information. [The defendant’s argument fails because] the agency inquiry

is precedent to and distinct from determining whether an agent ‘deliberately

elicits’ information.’’).

26 In State v. Swinton, supra, 268 Conn. 855, we cited a previous decision

of this court, State v. Alexander, supra, 197 Conn. 185, for the applicable

legal standard governing the question of agency. In Alexander, this court

concluded that there was substantial evidence to support the trial court’s

factual finding that an agency relationship was absent when the police drove

a private citizen who lacked a driver’s license to meet with the defendant

in jail on two occasions. Id., 186–87. Although our decision in that case

noted some level of facilitation and encouragement by the police; id.; the

informant in that case was not incarcerated, and there was no evidence

that he actually received anything in exchange for his cooperation. Id., 187

and n.4. Finally, we note that our decision in Alexander predated the United

States Supreme Court’s pronouncement that, under Massiah, the ‘‘police

have an affirmative obligation not to act in a manner that circumvents and

thereby dilutes the protection afforded by the right to counsel.’’ Maine v.

Moulton, supra, 474 U.S. 171. In light of these distinctions, our decision in

Alexander is of limited utility in the present case.

A Superior Court case, State v. Howell, Superior Court, judicial district

of New Britain, Docket No. CR-05-222048-S (January 30, 2007) (Sheldon,

J.), contains a more instructive set of facts. In that case, the defendant was

arrested, charged with murder, and held in lieu of bond. Id. The informant

in that case, a fellow inmate, began interacting with the defendant in the

prison recreation area. Id. During a series of conversations there, the defendant remarked that his charges related to the disappearance of a prostitute

and made certain incriminating statements. Id. The informant subsequently

called the police to discuss the defendant, and a detective asked, in particular, if the defendant had said anything about the body. Id. The informant

responded that, although the defendant had not said anything yet, the conversations would likely ‘‘ ‘lead up to that.’ ’’ Id. The detective affirmatively

instructed the informant not to press the defendant for information but

also implied that the informant should continue listening, stating: ‘‘[I]f [the

defendant’s] offering shit you know just.’’ Id. The informant then returned

to the recreation area and elicited further incriminating statements from

the defendant. Id.

The detective spoke to the informant again the following day. ‘‘This conversation began with a lengthy lecture by the [d]etective to [the informant]

about the legal consequences of his continuing cooperation with the investigation in light of the fact that the defendant was formally charged with

murder and had an attorney appointed to represent him. According to the

[d]etective, [the informant] had become an agent of the [s]tate with respect

to the police investigation of [the] death and disappearance [of the victim]

when they first spoke on the telephone the day before. Thus, the [d]etective

told him, he could not ask the defendant any questions on the subject of

[the victim] . . . and he could not agree with the defendant, or even nod

his head, if the defendant ever spoke about her.’’ (Citation omitted.) Id. At

trial, the state sought to admit the incriminating statements made by the

defendant both before and after the informant’s first contact with the

police. Id.

The trial court in that case concluded that, notwithstanding certain evidence indicating that the informant had provided information to the police
regarding certain other cases, there was no evidence of an agency relationship before the first telephone call. Id. The trial court also found, however,

that an agency relationship had been established when, ‘‘upon completing

his short phone call . . . [with] the [d]etective . . . and learning that the

[d]etective was very interested in what the defendant might ultimately tell

him, [the informant] returned to the recreation area to hear whatever else

the defendant was ready to say.’’ Id. The trial court opined that the detective’s

admonition not to ‘‘ ‘press’ ’’ the defendant was ‘‘a far cry from the express

and appropriate warnings’’ given the following day and that the informant’s

actions after the first telephone call amounted to deliberate elicitation. Id.

Accordingly, the trial court in that case suppressed the evidence regarding

the statements made by the defendant after the informant’s first contact

with the police. Id.

27 Because this issue relates to a question arising under the federal constitution, case law from the Second Circuit is entitled to significant weight. See,

e.g., Gleason v. Smolinski, 319 Conn. 394, 444 n.41, 125 A.3d 920 (2015).

28 Although this approach has been described as a bright-line rule requiring

government instruction as a predicate to relief under Massiah; see D. Kirsch,

Note, ‘‘The Prosecutor Circumvents the Sixth Amendment Right to Counsel

with a Simple ‘Wink and Nod,’ ’’ 69 Mo. L. Rev. 553, 560–61 (2004); its origins

may be traced back to cases weighing various factors. See, e.g., United

States v. Birbal, 113 F.3d 342, 346 (2d Cir.), cert. denied, 522 U.S. 976, 118

S. Ct. 433, 139 L. Ed. 2d 333 (1997); Stano v. Butterworth, 51 F.3d 942, 977

(11th Cir. 1995), cert. denied sub nom. Stano v. Singletary, 516 U.S. 1122,

116 S. Ct. 932, 133 L. Ed. 2d 859 (1996); Brooks v. Kincheloe, 848 F.2d 940,

944–45 (9th Cir. 1988).

29 For largely pragmatic reasons, courts have often hesitated to articulate

an exhaustive list of factors in this context. See, e.g., People v. Cardona,

41 N.Y.2d 333, 335, 360 N.E.2d 1306, 392 N.Y.S.2d 606 (1977) (‘‘we decline

to subscribe to any ironclad rules as to when agency exists since the niceties

of rule-complying form could easily mask the substance of a true agency

relationship’’).

30 The concurring and dissenting justice contests this reading. See footnote

22 of the concurring and dissenting opinion. This letter, which was marked

as an exhibit for identification purposes, provides in relevant part: ‘‘I have

some information that could be very useful to you and one of your cases.

. . . I know all about Nashon and Valentino and so on. . . . You want my

help, come [and] see me [and] we’ll talk. . . .’’ Nashon and Valentino are

individuals related to a different criminal case then pending against the

defendant. Indeed, as the trial court in the present case itself noted, ‘‘the

initial letter was not about [the victim]; [Pladsen] wanted to give information

about [the defendant’s] other crimes.’’

31 Although it is not entirely clear from the record whether Pladsen

expressly indicated that he would be continuing his efforts to obtain information from the defendant; see footnote 12 of this opinion; that fact would

have become apparent to the state no later than May 29, 2007, the day

the note was given to Weaver. Pladsen’s testimony at trial indicates that,

notwithstanding this fact, the defendant was returned to Northern later that

same day where he made additional incriminating statements to Pladsen.

Specifically, Pladsen testified at trial that the defendant was upset that the

state had found the note and had asked him to claim authorship. See footnotes 14 and 16 of this opinion.

32 We note that the record contains some evidence indicating that the

state had expressly agreed to permit a sentence modification shortly before

Pladsen testified in the present case. See footnote 17 of this opinion. The

trial court, however, declined to find that evidence to be credible in ruling

on a related postjudgment claim.

33 The concurring and dissenting justice concludes that the defendant’s

incarceration ‘‘is simply not relevant to the question of whether Pladsen

was an agent of the state.’’ We recognize that a circuit split exists on this

particular point of law and that, as a result, the position of the concurring

and dissenting justice is supported by relevant case law. Compare Matteo

v. Superintendent, SCI Albion, supra, 171 F.3d 895 (concluding that, ‘‘[c]ertainly, the ‘special pressures’ of custody were present’’), with United States

v. Watson, 894 F.2d 1345, 1347 (D.C. Cir. 1990) (‘‘it is of no moment that

the incriminating conversations took place while the accused was incarcerated’’). Nonetheless, we disagree. The circumstances attendant to the defendant’s incarceration, such as the undisputed fact that he recreated alone

with Pladsen, must be considered when evaluating the ‘‘likely . . . result

of the government’s acts.’’ (Internal quotation marks omitted.) Ayers v.
Hudson, supra, 623 F.3d 311. As a result, we find the reasoning of the United

States Court of Appeals for the Third Circuit in Matteo, on balance, more

persuasive.

34 Even if Pladsen’s initial private meeting with Weaver did not result in

agency, surely, such a relationship would have been established after Pladsen

offered, and the state affirmatively accepted, evidence specifically relating

to the defendant’s involvement in the victim’s death. It is undisputed, however, that Pladsen was returned to Northern after producing the note, had

another conversation with the defendant about the present case, and was

subsequently called by the state to testify as to that conversation. See

footnotes 14, 16 and 31 of this opinion. Because the state has conceded

both deliberate elicitation and harmless error in the present appeal, this

fact alone would have been sufficient to warrant reversal of the defendant’s

conviction.

35 Although the presence of such prophylactic steps does not necessarily

preclude sixth amendment infirmity; Maine v. Moulton, supra, 474 U.S. 165;

United States v. Henry, supra, 447 U.S. 266–67; the state’s failure to employ

these measures in the present case undoubtedly increased the likelihood

of infringement of the defendant’s constitutional rights.

36 To conclude otherwise would allow jailhouse informants to exclude

themselves from consideration as a state actor simply by pretending to be

a double agent. The fact that a defendant who falls victim to such a ruse

may himself be seeking to gain some measure of unfair advantage is irrelevant. The state’s affirmative obligation to avoid infringement of the right to

counsel precludes such gamesmanship. See Maine v. Moulton, supra, 474

U.S. 171.

37 We address this claim because it seeks relief in the form of a judgment

of acquittal. See, e.g., State v. Padua, 273 Conn. 138, 178–79, 869 A.2d

192 (2005).

38 Although the operative information charged the defendant with both

unlawfully entering and remaining, the state’s evidence and arguments pertain solely to the latter. See State v. Belton, 190 Conn. 496, 500, 461 A.2d 973

(1983) (‘‘[t]o enter unlawfully contemplates an entry [that] is accomplished

unlawfully, [whereas] to remain unlawfully contemplates an initial legal

entry [that] becomes unlawful at the time that the actor’s right, privilege or

license to remain is extinguished’’). Indeed, the state’s brief notes that, at

trial, it proceeded under the theory ‘‘that, because the victim was acquainted

with the defendant and because there were no signs of forced entry, [the

victim] likely willingly permitted [the defendant] to enter her apartment.’’

39 The trial court gave the following instructions to the jury with respect

to this element: ‘‘[T]he state must prove beyond a reasonable doubt that the

defendant entered unlawfully or, regardless of how the defendant entered,

he remained there unlawfully. A person enters or remains unlawfully in or

upon premises when the premises, at the time of such entry or remaining,

are not open to the public and when the defendant is not otherwise licensed

or privileged to do so. It does not matter how an intruder may actually have

entered; if he did so without license, he has entered unlawfully. Even if a

person entered a building lawfully, that is, he had the right or had been

given permission and the right had been terminated or the permission withdrawn by someone who had a right to terminate or withdraw it, you may

find unlawfully remaining as the basis of burglary.’’

40 In Thomas, the state argued that the jury could have inferred an unlawful

remaining from the fact that the defendant had ‘‘manifested an intent to

carry out a criminal purpose’’ while inside of the convenience store. State

v. Thomas, supra, 210 Conn. 207. In rejecting that argument, this court relied

on a comment by the Commission to Revise the Criminal Statutes, which

provides in relevant part: ‘‘ ‘The purpose of this definition is to make clear

that only the kind of entry or remaining which is likely to terrorize occupants

is prohibited by the crime of burglary. Thus, when the building is, at the

time, open to the public, or the actor is otherwise licensed or privileged to

be there, the element of terror is missing and the requirement is not met.’ ’’

(Emphasis added.) Id., quoting Commission to Revise the Criminal Statutes,

Penal Code Comments, Connecticut General Statutes (1969) pp. 52–53,

reprinted in Conn. Gen. Stat. Ann. § 53a-100 (West 2012), commission comment, p. 16.

41 The paradigm of such an unlawful remaining occurs when a defendant

enters a business when it is open to the public and then stays past closing.

See State v. Allen, supra, 216 Conn. 384 (‘‘A enters an office building during

business hours—a lawful entry since the building is open to the public—

and remains, perhaps hidden, after the building is closed, with intent to
steal. A is guilty of burglary.’’ (Internal quotation marks omitted.)).

42 The defendant relies on State v. Clark, 48 Conn. App. 812, 713 A.2d 834,

cert. denied, 245 Conn. 921, 717 A.2d 238 (1998), as an example of the

absurd results that would occur in the absence of a bright-line rule requiring

surreptitious conduct. In that case, the victim was sexually assaulted in her

own kitchen by an uninvited assailant. Id., 814, 824. The defendant argues

that, ‘‘[i]f the conduct [at issue in Clark] had occurred outdoors, [the defendant in that case] would not have been guilty of the class B felony of burglary,

but only of the class D felony of third degree sexual assault. Clearly the

legislature did not intend for there to be such a disparity in the sentence a

person could receive simply because the crime was committed indoors as

opposed to outdoors.’’

It is, however, well established that such intrusions into the home cause

a unique form of injury that has traditionally been punished as a separate

and distinct offense under the law of this state. See, e.g., State v. Little, 194

Conn. 665, 675–76, 485 A.2d 913 (1984). In the absence of constitutional

infirmity, concerns regarding the penalty affixed by statute to the crime of

burglary are appropriately addressed to the legislature. See, e.g., Washington

v. Commissioner of Correction, 287 Conn. 792, 828, 950 A.2d 1220 (2008)

(acknowledging ‘‘the legislature’s authority to define crimes and [set] appropriate penalties’’).

43 We note that the state also contends that any error in this regard was

harmless and that the parties disagree on the burden of proof attendant to

such an analysis. See State v. Arroyo, 284 Conn. 597, 614, 935 A.2d 975

(2007) (declining to consider whether constitutional or nonconstitutional

standard of harmless error review applies to improper omission of thirdparty culpability instruction). Because we address this claim as an issue

likely to arise on remand, we need not address questions of harmless error

in the present appeal.

44 Although testimony offered at trial indicated that the victim had unprotected vaginal intercourse with a particular man the night before her death,

no evidence was introduced to demonstrate that that man was the source

of the unknown male DNA on victim’s vaginal swab.

45 Ladd indicated that this saliva came from a different source than other

male DNA found on a condom from the victim’s bedroom. In light of certain

posttrial evidence linking the condom to another man; see footnote 44 of

this opinion; it is reasonable to deduce that neither that man nor the defendant was the source of the male DNA discovered on the victim’s shoulder.

We note that, although both the state and the defendant make the same

inference in briefing various issues in the present appeal, this information

was not available to the trial court when it instructed the jury.

46 With respect to this sample, Ladd testified that the victim was a major

contributor and that the unidentified male was a minor contributor.

47 We note that the current revision of the model criminal jury instructions

contains similar language. See Connecticut Criminal Jury Instructions 2.6-

10, available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited

August 5, 2020).

48 In reaching this conclusion, this court noted: ‘‘The restrictions placed

on [third-party] culpability evidence are concerned primarily with reliability

and, in essence, seek to ensure that a defendant does not introduce tenuous

evidence of [third-party] culpability in an attempt to divert from himself the

evidence of guilt. . . . Those same concerns do not exist . . . where the

evidence the defendant [seeks] to introduce [is] reliable, physical evidence

that had undergone the rigors of forensic analysis.’’ (Citations omitted.)

State v. Cerreta, supra, 260 Conn. 262, citing State v. Hernandez, 224 Conn.

196, 202, 618 A.2d 494 (1992) (evidence of threat by third party), and State

v. Echols, 203 Conn. 385, 392–94, 524 A.2d 1143 (1987) (evidence that thirdparty lookalike committed similar crime in same vicinity).

49 This evidence stood in contrast to an unidentified print lifted from a

gasoline filled soda bottle that had been used in the commission of the

underlying crime that, we noted, had been properly admitted during the

course of the underlying trial. State v. West, supra, 274 Conn. 616, 627 n.29.

50 We note that the trial court ‘‘is in the best position to view the evidence

in the context of the entire case and has wide discretion in making its

evidentiary rulings.’’ State v. Schovanec, supra, 326 Conn. 320; see also State

v. Walsh, 67 Conn. App. 776, 790, 789 A.2d 1031, cert. denied, 260 Conn.

906, 795 A.2d 546 (2002). Like the decision of whether to give a third-party

culpability instruction, a trial court’s decision as to the admissibility of

‘‘[third-party] inculpatory evidence will be reversed on appeal only if the

court has abused its discretion or an injustice appears to have been done.’’
(Internal quotation marks omitted.) State v. West, supra, 274 Conn. 626.

51 For example, a trial court that exercises its discretion to admit forensic

evidence demonstrating the presence of a third party at a crime scene

nonetheless may act within its discretion by declining to give a third-party

culpability instruction in the event the evidence actually admitted at trial

falls short of proving a direct connection. Put differently, the fact that the

trial court’s predicate evidentiary rulings may have benefited the defendant

does not compel the conclusion that its ultimate decision to withhold an

instruction was error. Cf. State v. Schovanec, supra, 326 Conn. 316–17, 323.

52 We emphasize that the question of whether the evidence actually admitted in any new trial will reasonably support a third-party culpability instruction must be vested, in the first instance, to the sound discretion of the trial

court. See, e.g., State v. Jackson, supra, 304 Conn. 424.