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*********************************************** 
STATE OF CONNECTICUT v. JAQUWAN BURTON

(AC 41807)

DiPentima, C. J., and Prescott and Bright, Js.

Syllabus

Convicted, after a jury trial, of the crimes of murder, criminal possession of

a firearm and carrying a pistol without a permit, the defendant appealed,

claiming, inter alia, that the trial court improperly denied his motion to

suppress certain evidence seized by the police during a warrantless

search of the bedroom of his girlfriend, J, which was located in the

residence of her mother, N. The defendant’s conviction stemmed from

an incident in which he was driven by a friend to the victim’s residence

to obtain marijuana, and, during the transaction, the defendant fatally

shot the victim. Approximately two months later, the police went to N’s

residence to arrest the defendant pursuant to an outstanding arrest

warrant unrelated to the homicide of the victim. N answered the door

and permitted entry into the premises by the police, who proceeded

upstairs to a locked bedroom where they found the defendant, who was

taken into custody and brought outside to a patrol car. J, who also was

in the bedroom, was escorted downstairs by the police. N initially had

declined to give the police consent to search the premises, but, after

the defendant told her that a gun was in the bedroom and that she

should let the police get it, she signed a consent form allowing the

police to search the bedroom. J signed a similar consent form. The

police proceeded to search the bedroom and seized a two-tone chrome

and black nine millimeter handgun, an ammunition magazine and fifteen

rounds of nine millimeter ammunition from inside a dresser drawer.

Thereafter, it was determined that a nine millimeter shell casing that

was found at the crime scene was in substantial agreement with the

nine millimeter handgun seized from the dresser in the bedroom. Prior

to trial, the defendant filed a motion to suppress the evidence seized

from the bedroom, asserting that the warrantless search violated his

constitutional rights and, therefore, the fruit of that illegal search had

to be suppressed. Following an evidentiary hearing, the trial court denied

the motion. Held:

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

evidence seized by the police from J’s bedroom, as that court’s finding

that N and J voluntarily had consented to the search of the bedroom

by the police was not clearly erroneous: although the defendant claimed

that N and J had been coerced by the police to give their consent, in

making that claim the defendant relied on certain testimony of J, N and

himself that the police allegedly threatened to arrest J if she refused to

consent and that the police informed N and J that, if they did not consent,

the police would obtain a search warrant anyway, which the court

explicitly found to be not credible, and this court had to defer to the

trial court’s credibility assessments; moreover, the remaining evidence

presented supported the court’s voluntariness finding, as it showed that

although there were eight to ten armed police officers at the subject

premises early in the morning seeking to arrest the defendant, who was

a convicted felon, potentially a gang member, had been involved in

shootings and was suspected to have a weapon, there was no evidence

that the officers forcibly entered the residence of N, who had granted

them access, there was no evidence that two police officers who had

pointed their weapons at the defendant and J when entering the bedroom

used their weapons for any other purpose, including when they asked

for consent, and N and J both completed and signed a consent to search

form that contained disclaimers, including that the consent was given

voluntarily and without duress, threats or promises of any kind; furthermore, the fact that N initially declined to consent to a search did not

render the court’s voluntariness finding clearly erroneous, as it showed

that N possessed the ability and the will to make that decision despite

what the defendant claimed were coercive conditions, and it was a

strong indication of voluntariness that N and J decided to give the police

consent only after the defendant had told N that there was a handgun
in the bedroom and that she should let the police get it.

2. The defendant could not prevail on his claim that the trial court improperly

excluded evidence concerning the inability of two potential eyewitnesses to identify the defendant in a photographic array as the shooter,

which was based on his assertion that the court improperly determined

that § 8-5 (2) of the Connecticut Code of Evidence was the hearsay

exception applicable to such nonidentification evidence: because W,

the lead investigator in connection with the victim’s homicide, was not

present when the witnesses reviewed the photographic array and the

defendant sought to introduce the witnesses’ nonidentification of the

defendant in an assertive manner as evidence that they could not identify

the defendant as the shooter, the trial court correctly concluded that

W’s testimony was hearsay and was admissible only if it fell within a

hearsay exception, and that § 8-5 (2) of the Connecticut Code of Evidence

was not applicable to W’s testimony where, as here, the witnesses were

not available to be cross-examined, and, therefore, in light of the defendant’s failure to identify any other hearsay exception that would have

applied to W’s testimony, there was no basis to conclude that the trial

court erred in excluding W’s testimony regarding the nonidentifications

by the witnesses; moreover, because certain photographic array documents that were offered into evidence by the defendant were offered

for the inference of the witnesses’ nonverbal assertive acts drawn from

the documents, the business records exception to the hearsay rule did

not apply to the inference that the witnesses could not identify the

defendant from the photographic array because that fact was not contained in the documents themselves and was based on hearsay implied

from a combination of the documents and the witnesses’ assertive

actions or inactions, and in light of the defendant’s failure to identify

any other hearsay exception that would have allowed for the admission

of the photographic array documents, the court properly excluded them.

3. The trial court did not abuse its discretion in concluding that a video

recording of an interview between an eyewitness and the police was

not sufficiently reliable or trustworthy to support its admission under the

residual exception to the hearsay rule set forth in § 8-9 of the Connecticut

Code of Evidence: the reliability and trustworthiness of the interview

was undermined by the inability of the state to question the witness as

to her ability to perceive the shooter and the events on the evening of

the shooting and to cross-examine her as to the critical uncertainties

contained within the interview, and the evidence presented at trial failed

to corroborate in many material respects, and actually contradicted, the

witness’ version of the events; moreover, because the trial court properly

excluded the video recording of the interview, the defendant’s constitutional claim necessarily failed.

Argued February 13—officially released August 13, 2019

Procedural History

Substitute information charging the defendant with

the crimes of murder, criminal possession of a firearm

and carrying a pistol without a permit, brought to the

Superior Court in the judicial district of New Haven,

where the court, Alander, J., denied the defendant’s

motion to suppress certain evidence; thereafter, the

matter was tried to the jury; verdict and judgment of

guilty, from which the defendant appealed. Affirmed.

Alice Osedach, assistant public defender, for the

appellant (defendant).

Rocco A. Chiarenza, assistant state’s attorney, with

whom, on the brief, were Patrick J. Griffin, state’s

attorney, and John P. Doyle, Jr., senior assistant state’s

attorney, for the appellee (state).
Opinion

BRIGHT, J. The defendant, Jaquwan Burton, appeals1

from the judgment of conviction, rendered after a jury

trial, of murder in violation of General Statutes §§ 53a54a (a) and 53a-8, criminal possession of a firearm in

violation of General Statutes § 53a-217 (a) (1), and carrying a pistol without a permit in violation of General

Statutes § 29-35 (a). On appeal, the defendant claims

that the trial court improperly (1) denied his motion to

suppress items of evidence seized from his girlfriend’s

bedroom located at her mother’s residence because

neither his girlfriend nor her mother provided voluntary

consent to search therein, (2) excluded evidence concerning the inability of two eyewitnesses to identify

extrajudicially the defendant from a photographic array

as the shooter, and (3) excluded from evidence a video

recording of an interview between an eyewitness and

the police. We affirm the judgment of the trial court.

The relevant facts, as reasonably could have been

found by the jury, and procedural history, are as follows.

On the evening of February 10, 2014, the defendant

called his friend, John Helwig, and indicated that he

wanted a ride to buy some marijuana. Helwig, in his

gray or ‘‘greenish’’ car, picked up the defendant at a

house on Valley Street in New Haven, at which the

defendant’s girlfriend, Laneice Jackson, resided with

her mother, Patrice Nixon. Helwig then picked up two

other males, and the defendant instructed Helwig to

drive to an address in the proximity of 31 Kossuth Street

in New Haven and to park on a side street. When they

arrived, the defendant exited the vehicle alone and was

talking on his cell phone to the victim, Kyle BrownEdwards, about a marijuana transaction. The defendant

stated to the victim that he was ‘‘right around the corner,’’ and then the defendant walked away behind

the vehicle.

Meanwhile, the victim and his friends, Joseph Cordy

and Perry,2 were present on the second floor of the

victim’s residence at 31 Kossuth Street. After speaking

with the defendant on his cell phone, the victim, at

approximately 8:30 p.m., with marijuana in his possession, proceeded to go downstairs to the front entrance

of the residence. While standing in the doorway of the

front entrance, the victim was shot in the face by the

defendant. Cordy heard the gunshot, observed the victim at the bottom of the stairs, and then called the

police. At the same time, the victim’s cousin, Jeremy

Brown, and Jeremy’s girlfriend, Morgan Brown, were

somewhere outside the residence at 31 Kossuth Street.

Approximately five minutes after he left Helwig’s

vehicle, the defendant sprinted back to the vehicle with

a gun in his hand and, after entering the vehicle, pointed

the gun at Helwig and told him to drive. Helwig then

drove to his grandmother’s residence. There, the defen-
dant told Helwig that he had planned to rob the victim,

but, after the victim declined ‘‘to give it up’’ and gave

him ‘‘a weird look,’’ he shot the victim in the face.

The defendant also asked Helwig for some cleaner to

remove the blood from his sneakers.

At approximately 8:30 p.m., New Haven police were

dispatched to 31 Kossuth Street in response to a report

of someone being shot and, upon arrival, observed that

the victim had a gunshot wound to his head. The victim

was transported to a hospital, and he died as a result

of his injuries. Later that same night, New Haven police

investigated the crime scene and seized a single nine

millimeter shell casing from the floor at the bottom of

the staircase near the doorway inside 31 Kossuth Street.

New Haven police also seized the victim’s cell phone,

which was provided to them by Cordy. An examination

of the victim’s cell phone revealed one missed call and

two completed calls on February 10, 2014, between 8:21

p.m. and 8:31 p.m., from the defendant’s cell phone.

On the morning of April 3, 2014, several law enforcement officers went to 461 Valley Street to arrest the

defendant pursuant to an outstanding arrest warrant

unrelated to the homicide of the victim. Nixon answered

the door and permitted State Trooper Chris McWilliams

and New Haven Police Sergeant Karl Jacobson and

Detective Martin Podsiad to enter the premises. McWilliams and Podsiad proceeded upstairs to a locked bedroom, and, after they had knocked, the defendant

opened the door. The defendant was taken into custody

and brought outside to a patrol car. Jackson, who also

was in the bedroom, was escorted downstairs. The officers did not have a search warrant, but they received

written consent to search the bedroom from both Jackson and Nixon. The officers searched the bedroom and

seized, among other things, a two-tone chrome and

black nine millimeter handgun, an ammunition magazine, and fifteen rounds of nine millimeter ammunition

from inside a dresser drawer.

Further investigation revealed that the nine millimeter shell casing that was found at the crime scene was

in ‘‘substantial agreement’’ with the nine millimeter

handgun seized from the dresser in the bedroom. Furthermore, the defendant’s friends had seen him always

carrying a particular nine millimeter gun that matched

the two-tone appearance of the gun found in the dresser.

Also as part of their investigation, law enforcement

seized the defendant’s cell phone. Thereon, they discovered a video of the defendant reacting to a television

news report of the victim’s murder, and pictures of

himself, prior to the shooting, holding a two-tone handgun matching the one found in the dresser. The defendant thereafter was charged with murder, criminal possession of a firearm, and carrying a pistol without a

permit. He pleaded not guilty and elected a jury trial.

On March 31, 2016, before trial, the defendant filed
a motion to suppress the evidence seized from the bedroom at 461 Valley Street, specifically including the nine

millimeter handgun, tests performed thereon, and any

testimony related thereto. The defendant maintained

that the warrantless search of the bedroom at 461 Valley

Street violated his rights under the fourth amendment

to the constitution of the United States and article first,

§ 7, of the constitution of Connecticut and, thus, he

argued that the fruit of those searches must be suppressed. In contrast, the state argued that the searches

and seizures did not violate the defendant’s constitutional rights because both Jackson and Nixon provided

voluntary consent to search the bedroom.

On January 30, 2017, after a two day evidentiary hearing, the court issued a memorandum of decision in

which it denied the defendant’s motion to suppress.

Therein, the court found that the credible evidence

established that the state proved that the warrantless

search of the bedroom at 461 Valley Street and seizure

of the handgun therein did not violate the defendant’s

constitutional rights because consent to search was

freely and voluntarily given by Jackson and Nixon, who

were the individuals with the requisite authority to

do so.

Thereafter, the defendant’s case proceeded to a jury

trial. During the state’s case-in-chief, the defendant

sought to introduce testimony and documentary evidence to establish that Morgan Brown and Jeremy

Brown (collectively, the Browns), who were potential

eyewitnesses to the murder and not available to testify

at trial, each previously had been unable to identify the

defendant in a photographic array. The defendant first

asked Detective Michael Wuchek, who was the lead

investigator in connection with the homicide of the

victim, whether the Browns were able to identify the

defendant in a photographic array. The state objected,

and the court excused the jury. The court heard argument and sustained the state’s objection on the ground

that Wuchek’s testimony as to whether the Browns were

able to identify the defendant was hearsay and, because

they were unavailable to testify, the pretrial identification exception to the hearsay rule; see Conn. Code Evid.

§ 8-5 (2);3 did not apply to his testimony. Second, still

outside the presence of the jury, defense counsel made

an offer of proof as to the photographic array documents shown to the Browns. Those documents included

a single sheet containing eight photographs of individuals, including the defendant, and two instruction sheets,

one purportedly signed by Morgan Brown and one purportedly signed by Jeremy Brown. Defense counsel

argued that these documents were admissible pursuant

to the business records exception to the hearsay rule.

See Conn. Code Evid. § 8-4 (a).4 The state objected, and

the court sustained the objection on the ground that

the inference drawn from the documents that the

Browns were unable to identify the defendant consti-
tuted hearsay that was not excepted from the hearsay

rule pursuant to § 8-5 (2) of the Connecticut Code of

Evidence.

Several days later, in the course of the state’s casein-chief, the defendant filed a motion to admit into evidence the video recording of an interview between Morgan Brown and the police on the night of the victim’s

murder because he believed that Morgan Brown’s

description of the events that night contradicted the

state’s evidence in certain important respects. In his

memorandum of law in support of his motion to admit,

the defendant maintained that the video recording was

admissible pursuant to the residual exception to the

hearsay rule. See Conn. Code Evid. § 8-9.5 The next day,

the court, after it heard argument from both parties,

issued an oral decision in which, after expressing doubt

as to whether the defendant had established that Morgan Brown was unavailable, it denied the defendant’s

motion on the ground that the interview was not trustworthy and reliable because the state would be unable

to cross-examine Morgan Brown about the inconsistencies therein.

The jury subsequently found the defendant guilty of

all charges, and the court, after rendering judgment in

accordance with the verdict, sentenced the defendant

to a total effective sentence of fifty-five years incarceration and imposed a fine of $5000. This appeal followed.

Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly

denied his motion to suppress several items of evidence

seized from Jackson’s bedroom located at Nixon’s residence because neither Jackson nor Nixon provided voluntary consent to search therein. Specifically, he contends that the court erroneously found that both

Jackson and Nixon had provided free and voluntary

consent to search the bedroom because the evidence

presented at the motion to suppress hearing established

that they were coerced by the law enforcement officers

into providing consent. The defendant argues that the

warrantless search of the bedroom by the law enforcement officers violated his constitutional rights, and,

therefore, the items of evidence seized from this search

should have been suppressed. We disagree.

In its memorandum of decision denying the defendant’s motion to suppress, the court found the following

additional facts. ‘‘Law enforcement officers . . . were

seeking to serve two arrest warrants on the defendant,

[who] . . . was a convicted felon and a suspected gang

member. The officers also possessed information from

a confidential informant that the defendant was in possession of a weapon, [had previously been involved in

shootings], and was residing with his girlfriend . . .

[Jackson] . . . [i]n one of two houses in the Valley
Street area of New Haven. On April [3], 2014, eight to

ten law enforcement officers went to 461 Valley Street

in New Haven to determine whether the defendant was

at that address and to serve the arrest warrants. They

arrived at approximately 6 a.m. Three of the officers

approached the front door of the dwelling, while the

remaining officers took up positions outside the perimeter of the house. The three officers were armed. Karl

Jacobson, a sergeant with the New Haven Police

Department, was armed with a handgun, while . . .

Podsiad . . . and State Trooper McWilliams were

armed with assault rifles. Jacobson knocked on the

front door, which was eventually answered by . . .

Nixon, who was the lessee of the home. Nixon opened

the door and let the three officers inside the house.

Jacobson asked Nixon whether the defendant was there

to which Nixon replied that she did not think so. Jacobson then asked Nixon if they could look to see if the

defendant was present and Nixon responded, ‘go

ahead.’ Jacobson stayed with Nixon as Podsiad and

McWilliams searched the premises for the defendant.

The two officers proceeded to an upstairs bedroom and

knocked on the door, which was locked. The defendant

opened the door and was immediately arrested and

handcuffed. Also inside the bedroom was . . . Jackson . . . .

‘‘The defendant was eventually brought outside and

placed inside a patrol car. Nixon initially declined to

consent to a search of the premises. At some point,

Jacobson was informed by a patrol officer that the

defendant wanted to speak with him. Jacobson went

to the patrol car where the defendant was in custody.

The defendant volunteered that the gun they were looking for was in the bedroom and he did not want anyone

else to get in trouble for it. Jacobson informed the

defendant that Nixon would not consent to a search.

Upon hearing this news, the defendant asked to speak

with Nixon. The defendant’s request was accommodated, whereupon the defendant told Nixon that the

gun was in the bedroom and to ‘just let them get it.’

Nixon then signed a consent form allowing the officers

to search the bedroom. Jackson signed a similar consent form. Each form stated that the signer ha[d] been

informed of her constitutional right not to have a search

made without a search warrant and her right to refuse

to consent to a search. The form also stated that permission to search [was] being given ‘voluntarily and without

duress, threats, or promises of any kind.’ After obtaining

the written consent to search from Nixon and Jackson,

Podsiad searched the bedroom and seized the subject

handgun located in a dresser drawer.’’

The court also specifically credited the testimony

of the law enforcement officers and discredited the

conflicting testimony of Jackson, Nixon, and the defendant. The court stated that ‘‘Nixon and Jackson disputed

the above facts in important respects. Jackson testified
that she returned to the bedroom prior to her signing

the consent form to obtain clothes for the defendant

and that it was apparent from the disarray of the room

and the open dresser drawer that it had already been

searched. [The court] find[s] this testimony not to be

credible. It is contradicted by the testimony of Podsiad

that no civilian was allowed back into the bedroom after

it was initially vacated by Jackson and the defendant,

as well as the testimony of Nixon . . . that Jackson

did not go back upstairs.

‘‘Nixon testified that she was coerced into consenting

to a search of the bedroom because she was told by a

police officer that Jackson would be arrested if the

police were required to obtain a search warrant and a

handgun was found. Nixon testified that, since [Jackson] was pregnant and she was concerned that she

might be arrested, she was forced to consent to the

search. Jackson and the defendant offered testimony,

which supported Nixon’s version of events. [The court]

do[es] not find any of this testimony to be credible.

Rather, [the court] credit[s] the testimony of Jacobson,

the lead law enforcement officer during the search and

the person who witnessed the signing of the two consent forms, that neither Nixon nor Jackson [were]

coerced or threatened in any way.’’

We turn next to the well established law and standard

of review that governs the defendant’s claim. Both the

fourth amendment to the United States constitution

and article first, § 7, of the constitution of Connecticut

protect individuals from unreasonable searches and seizures. ‘‘Under both the fourth amendment to the federal

constitution and article first, § 7, of the state constitution, a warrantless search of a home is presumptively

unreasonable.’’ (Internal quotation marks omitted.)

State v. Brunetti, 279 Conn. 39, 69, 901 A.2d 1 (2006),

cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed.

2d 85 (2007).

‘‘A warrantless search is not unreasonable under

either the fourth amendment to the constitution of the

United States or article first, § 7, of the constitution of

Connecticut if a person with authority to do so has

freely consented to the search. . . . The state bears the

burden of proving [by a preponderance of the evidence]

that the consent was free and voluntary. . . . The state

must affirmatively establish that the consent was voluntary; mere acquiescence to a claim of lawful authority

is not enough to meet the state’s burden. . . . The question whether consent to a search has in fact been freely

and voluntarily given, or was the product of coercion,

express or implied . . . is a question of fact to be determined from the totality of all the circumstances. . . .

We may reverse [the trial court’s factual findings] on

appeal only if they are clearly erroneous. . . . Thus,

[w]hether there was valid consent to a search is a factual

question that will not be lightly overturned on appeal.’’
(Citation omitted; footnote omitted; internal quotation

marks omitted.) State v. Jenkins, 298 Conn. 209, 249–50,

3 A.3d 806 (2010); see State v. Azukas, 278 Conn. 267,

277–78, 897 A.2d 554 (2006) (delineating principles of

valid third-party consent of residence).

‘‘Our standard of review of a trial court’s findings and

conclusions in connection with a motion to suppress

is well defined. A finding of fact will not be disturbed

unless it is clearly erroneous in view of the evidence

and pleadings in the whole record . . . . We undertake

a more probing factual review when a constitutional

question hangs in the balance.’’ (Internal quotation

marks omitted.) State v. Davis, 331 Conn 239, 246, 203

A.3d 1233 (2019).

‘‘Notwithstanding our responsibility to examine the

record scrupulously, it is well established that we may

not substitute our judgment for that of the trial court

when it comes to evaluating the credibility of a witness.

. . . It is the exclusive province of the trier of fact to

weigh conflicting testimony and make determinations

of credibility, crediting some, all or none of any given

witness’ testimony. . . . Questions of whether to

believe or to disbelieve a competent witness are beyond

our review. As a reviewing court, we may not retry the

case or pass on the credibility of witnesses. . . . We

must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its

firsthand observation of their conduct, demeanor and

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

Castillo, 329 Conn. 311, 322, 186 A.3d 672 (2018).

On appeal, it is undisputed that the law enforcement

officers did not have a search warrant and that Jackson

and Nixon had the authority to give and actually provided consent to search the bedroom; the issue, therefore, is whether their consent was voluntary. The defendant argues that the consent was not voluntary because,

under the totality of the circumstances, Jackson and

Nixon had been coerced to give their consent.6

In support of his argument, the defendant relies on the testimony of Jackson, Nixon, and himself that the officers

allegedly threatened to arrest Jackson if she refused to

consent and that the officers informed them that, if

they did not consent, the officers would obtain a search

warrant anyway.7 The defendant also relies on the evidence presented that Nixon initially refused to consent,

there was a large number of armed officers present

within the home at an early hour in the morning, and

Jacobson told Nixon that it was okay if she did not

consent because they were applying for a warrant to

search the house.

The initial problem with the defendant’s claim is that

he relies, in part, on the testimony of Jackson, Nixon,

and himself, which the court explicitly found to be not

credible. In light of the principle that we must defer

to the credibility assessments of the trial court, the
testimony of Jackson, Nixon, and the defendant as to

the allegedly coercive statements made by the police

are removed from our determination as to whether the

court’s voluntariness finding was clearly erroneous. See

id.; see also State v. Martinez, 49 Conn. App. 738, 745–

46, 718 A.2d 22 (declining to second-guess trial court’s

assessment that discredited individual’s testimony that

she did not consent to search), cert. denied, 247 Conn.

934, 719 A.2d 1175 (1998).

On the basis of the remaining evidence presented,

we conclude that the court’s voluntariness finding was

not clearly erroneous. Although there were eight to ten

armed officers at the premises early in the morning,

this was due to the fact that they were seeking to arrest

the defendant, who was a convicted felon, potentially

a gang member, had been involved in shootings, and

was suspected to have a weapon. See State v. GrayBrown, 188 Conn. App. 446, 458–59, 204 A.3d 1161

(rejecting argument that ‘‘consent was coerced because

the search occurred in the early morning and twelve

police officers were present at the house’’ where police

believed that suspect was armed and responsible for

homicide), cert. denied, 331 Conn. 922, 205 A.3d 568

(2019). There was no evidence that the officers forcibly

entered the home; rather, three of the officers were

granted access to the premises by Nixon, and she willingly answered their question as to whether she knew

if the defendant was present. See State v. Reynolds,

264 Conn. 1, 45, 836 A.2d 224 (2003) (determining that

finding of voluntary consent to search not clearly erroneous where officers requested permission to enter

premises and did not use loud or threatening language

or point their guns at anyone), cert. denied, 541 U.S.

908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). Although

two officers pointed their weapons at the defendant

and Jackson when entering the bedroom, there was no

evidence that the police used their weapons for any

other purpose, including when they asked for consent.

See State v. Jenkins, supra, 298 Conn. 254 (presence

of armed officers, although factor to be considered,

‘‘does not render the atmosphere coercive’’). Further,

Jackson and Nixon each completed and signed a consent to search form that contained disclaimers, including that the consent was given ‘‘voluntarily and without

duress, threats, or promises of any kind.’’

Moreover, the fact that Nixon initially declined to

consent to a search does not render the court’s voluntariness finding clearly erroneous; rather, it shows that

she possessed the ability and the will to make that

decision despite what the defendant claims were coercive conditions. See State v. Brunetti, supra, 279 Conn.

56 (‘‘because refusal to sign a consent to search form

is one of several factors to be considered in determining

the validity of consent, such refusal does not vitiate

consent otherwise found to be valid in light of all of

the circumstances’’). Indeed, it is a strong indication
of voluntariness that Jackson and Nixon decided to

provide the officers consent only after the defendant

told Nixon that the gun was in the bedroom and that

she should ‘‘just let them get it.’’

Finally, Jacobson testified that after Nixon initially

refused consent to search, he sent officers back to the

police station to start ‘‘drafting up a [search] warrant.’’

He did not testify, however, that he told Nixon or Jackson that he would get a warrant if they did not consent.

Furthermore, he testified that after the defendant told

him there was a gun in the bedroom, Jacobson told the

defendant that Nixon and Jackson were not consenting

to a search so the police were going to apply for a

search warrant. Jacobson never testified that any such

statement was made to Nixon or Jackson, or that they

were aware of Jacobson’s conversation with the defendant when they consented to the search.

We conclude that the evidence presented supported

the court’s finding that Jackson and Nixon voluntarily

consented to the officers’ request for permission to

search the bedroom, and, therefore, the court properly

denied the defendant’s motion to suppress the evidence

seized by the police from the bedroom.8

II

The defendant next claims that the court improperly

excluded evidence concerning the inability of the

Browns to identify extrajudicially the defendant in a

photographic array as the shooter. The defendant

argues that the court improperly determined that § 8-

5 (2) of the Connecticut Code of Evidence was the

hearsay exception applicable to the evidence of nonidentification in the form of the testimony of Wuchek

and the photographic array documents. We conclude

that the court did not improperly exclude the evidence

of nonidentification.

The following additional facts are relevant to our

resolution of the defendant’s claim. Wuchek testified as

part of the state’s case-in-chief. On cross-examination,

Wuchek testified that the Browns, as potential eyewitnesses, were interviewed by the police on the night of

the murder. He testified that, two months after the

murder, the Browns were recalled to the police station

where they each separately completed a review of a

photographic array. Wuchek averred that he did not

administer either array. Consequently, he was not in a

position to testify regarding how the Browns responded

to the photographic array, and, thus, he could not confirm whether they affirmatively said that they did not

see the shooter, were uncertain if the shooter was in

the array, or were silent after reviewing the array. Nevertheless, he outlined that it was the then existing practice of the police to present to the witness eight photographs of people similar in appearance, including a

picture of the suspect, one at a time. The witness then
would state whether any of the pictures represented

the individual that they saw commit the crime. After

Wuchek answered that the Browns each had completed

a review of a photographic array, which included a

picture of the defendant, defense counsel then asked

whether the Browns were able to identify the defendant

from the photographic array. The state objected, and

the court excused the jury.

At the outset, the court recognized that the question

called for hearsay, and it stated that the relevant hearsay

exception was § 8-5 (2) of the Connecticut Code of

Evidence, which excepts pretrial identification evidence from the hearsay rule when the witness is available to testify at trial. The court stated that, on the

basis of a conversation with counsel in chambers, it

understood that the Browns both were unavailable to

testify. The state then represented that it had confirmed

that, to the best of its knowledge, Morgan Brown was

on active duty in the United States Air Force in Texas,

and Jeremy Brown also was in the state of Texas, but

not assigned to the Air Force. Defense counsel confirmed that he had not been able to verify the Browns’

addresses or to contact them. Accordingly, the court

determined that, because the Browns would not be

available at trial for cross-examination, Wuchek’s testimony as to whether they previously had been able to

identify the defendant in a photographic array was not

excepted from the hearsay rule pursuant to § 8-5 (2) of

the Connecticut Code of Evidence.

Next, defense counsel made an offer of proof as to

a pair of two page documents that constituted the one

page New Haven Police Department ‘‘witness instructions—identification procedures’’ and a one page compilation of the photographic array. The two sheets of

instructions were completed and individually signed

by the Browns and New Haven Police Sergeant David

Zannelli. The two photographic arrays contained eight

pictures of individuals with comparable appearances,

including the defendant, as well as their corresponding

names. Neither photographic array contained any markings. In response to several questions posed by defense

counsel, Wuchek testified that he recognized the documents, but that the photographs depicted in the arrays

would have been presented separately to the Browns

and that the Browns would not have been shown the

names of the individuals. He testified that the police

maintain the photographic array records as part of their

investigation and case file. He also testified that if a

witness were to identify an individual in the array, they

would mark that individual’s picture, and, if the witness

were unable to identify an individual in the array, no

marks would be made. Defense counsel then asked that

the documents be admitted as business records for the

purpose of establishing that the Browns could not identify the defendant. The state objected on the ground

of relevancy.
The court reasoned that these documents, which did

not indicate whether the Browns were able to identify

any of the individuals, were relevant only if the Browns’

identification or lack of identification also was admissible as evidence. Defense counsel argued that the documents were relevant because the jury could draw a

reasonable inference therefrom that there was no positive identification. The court then determined that, if

the documents were used for the purpose of inferring

the lack of a positive identification, then that evidence

was not admissible pursuant to § 8-5 (2) of the Connecticut Code of Evidence because the Browns were unavailable to be cross-examined at trial.

We turn next to the well established law and standard

of review that governs the defendant’s claim. ‘‘To the

extent [that] a trial court’s admission of evidence is

based on an interpretation of the Code of Evidence,

our standard of review is plenary. For example, whether

a challenged statement properly may be classified as

hearsay and whether a hearsay exception properly is

identified are legal questions demanding plenary

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

Taupier, 330 Conn. 149, 181, 193 A.3d 1 (2018), cert.

denied, U.S. , 139 S. Ct. 1188, 203 L. Ed. 2d

202 (2019).

‘‘It is well settled that . . . [a]n out-of-court statement offered to prove the truth of the matter asserted

is hearsay and is generally inadmissible unless an exception to the general rule applies.’’ (Internal quotation

marks omitted.) State v. Carrion, 313 Conn. 823, 837,

100 A.3d 361 (2014). Evidence offered for the purpose

of establishing whether the declarant extrajudicially

identified a defendant is hearsay. See State v. Outlaw,

216 Conn. 492, 496–98, 582 A.2d 751 (1990). This identification evidence may be excepted from the hearsay rule

if the requirements of § 8-5 (2) of the Connecticut Code

of Evidence are met. That section provides in relevant

part: ‘‘The following are not excluded by the hearsay

rule, provided the declarant is available for cross-examination at trial . . . (2) The identification of a person

made by a declarant prior to trial where the identification is reliable.’’ Conn. Code Evid. § 8-5 (2).

Furthermore, a hearsay document may be excepted

from the hearsay rule pursuant to § 8-4 (a) of the Connecticut Code of Evidence, which provides: ‘‘Any writing or record, whether in the form of an entry in a book

or otherwise, made as a memorandum or record of any

act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or

event, if the trial judge finds that it was made in the

regular course of any business, and that it was the

regular course of the business to make the writing or

record at the time of the act, transaction, occurrence

or event or within a reasonable time thereafter.’’ See

also General Statutes § 52-180 (governing admissibility
of business entries); Margolin v. Kleban & Samor, P.C.,

275 Conn. 765, 779–80, 882 A.2d 653 (2005) (outlining

three requisite conditions for admissibility of business record).

In the present case, the defendant twice sought to

introduce the fact that the Browns, although they were

in close proximity to 31 Kossuth Street at the time the

victim was shot, were unable to identify the defendant,

from a photographic array, as the shooter. He sought

to introduce this fact through the testimony of Wuchek

as well as through the photographic array documents.

The defendant argues that the court improperly identified § 8-5 (2) of the Connecticut Code of Evidence as

applicable to his offers of proof.

With respect to the testimony of Wuchek, the defendant argues that the pretrial identification hearsay

exception does not apply because his answer would

have revealed that the Browns failed to identify the

defendant, not that they positively identified him. He

argues that the language of § 8-5 (2) of the Connecticut

Code of Evidence was intended to govern only positive

identifications, as opposed to a failure to make an identification. Because the defendant has identified no other

hearsay exception that would have made Wuchek’s testimony admissible, the defendant’s argument necessarily relies on an assumption that testimony from Wuchek

that the Browns did not identify the defendant when

shown the photographic array would not have been

hearsay at all. We disagree.

Hearsay includes not only verbal and written statements, but also ‘‘nonverbal conduct of a person, if it is

intended by the person as an assertion.’’ Conn. Code

Evid. § 8-1 (1) (B); see State v. Burney, 288 Conn. 548,

561, 954 A.2d 793 (2008). For example, an out-of-court

nod or shake of the head in response to a question is

as much an assertion subject to the hearsay rules as if

the person had answered the question verbally or in

writing. See State v. King, 249 Conn. 645, 670–71, 735

A.2d 267 (1999). Similarly, testimony that a person was

silent in response to a question or did not mention a

particular fact may constitute hearsay when offered to

prove the existence or nonexistence of the fact. Id.,

672; see also State v. Rosado, 134 Conn. App. 505, 519,

39 A.3d 1156, cert. denied, 305 Conn. 905, 44 A.3d

181 (2012).

For example, in King, our Supreme Court addressed

the issue of whether testimony as to the nonverbal

conduct of a declarant was assertive and, thus, constituted hearsay. State v. King, supra, 249 Conn. 670–72.

At the defendant’s murder trial, defense counsel sought

to introduce the testimony of a police officer who had

shown a photographic array, which included a picture

of the defendant, to the victim’s younger sister, who

was present at the home where the murder occurred.

Id., 652–53, 670, 673. Defense counsel expected the
police officer to testify that the victim’s sister ‘‘did nothing’’ when presented with the picture of the defendant.

Id., 670 n.31. The state objected on the ground that this

testimony was inadmissible hearsay because defense

counsel sought to treat the silence of the victim’s sister

as an assertion that she could not identify the defendant.

Id., 671. The trial court sustained the state’s objection.

Id. On appeal, our Supreme Court held that the trial

court properly excluded the officer’s testimony because

the silence of the victim’s sister was offered by defense

counsel to establish only that she failed to identify the

defendant from the photographic array. Id., 672. As

such, the declarant’s silence was ‘‘a nonverbal assertion

or statement’’ that constituted ‘‘inadmissible hearsay.’’ Id.

The same is true in the present case. The defendant

sought to have Wuchek testify that the Browns did not

identify the defendant’s picture when they reviewed the

photographic array. As in King, the defendant sought

to introduce the Browns’ nonidentification of the defendant in an assertive manner, as evidence that the

Browns could not identify the defendant as the shooter.

Because Wuchek was not present when the Browns

reviewed the photographic array, it is unclear exactly

how they responded, if at all, to the defendant’s photograph. Nevertheless, it does not matter. Whether the

Browns affirmatively excluded the defendant’s picture,

shook their heads when asked if they saw the shooter,

or were silent, makes no difference when their nonidentification is offered in an assertive manner. Clearly,

testimony as to the Browns’ verbal responses or nonverbal conduct, if offered through Wuchek, would constitute hearsay because the defendant would be offering

the Browns’ conduct for the truth of the matter asserted.

We see no reason why the same rule, as outlined in

King, should not apply to Wuchek’s testimony that the

Browns did not identify the defendant from the photographic array. Consequently, the court was correct in

concluding that Wuchek’s testimony regarding the

Browns’ nonidentification of the defendant was hearsay

and was only admissible if it fell within a hearsay exception. The court also correctly concluded that § 8-5 (2)

of the Connecticut Code of Evidence was not applicable

to Wuchek’s testimony because the Browns were not

available to be cross-examined.9 Because the defendant

has not identified any other hearsay exception that

would have applied to the proffered testimony, there

is no basis to conclude that the court in any way erred

in excluding Wuchek’s testimony regarding the nonidentifications by the Browns.

With respect to the photographic array documents,

the defendant argues that the court improperly determined that the pretrial identification exception, as

opposed to the business records exception, was the

applicable hearsay exception. The defendant offered

these photographic array documents for the relevant
purpose of establishing an inference that the Browns

were unable to identify the defendant, from the photographic array, as the shooter.10 When offered for that

purpose, the inference that the Browns were unable to

identify the defendant constituted implied hearsay in

the form of a nonverbal assertion.

This relevant inference constituted implied hearsay

because, although the offered documents themselves

do not establish whether the Browns were able to identify the defendant, this fact can be inferred from

Wuchek’s foundational testimony in conjunction with

the lack of markings on the documents. See State v.

Jones, 44 Conn. App. 476, 486, 691 A.2d 14 (implied

hearsay occurs when ‘‘although a witness did not repeat

the statements of [the declarant], his or her testimony

presented to the jury, by implication, [revealed] the

substance of the [the declarant’s] statements’’), cert.

denied, 241 Conn. 901, 693 A.2d 304 (1997); In re Jose

M., 30 Conn. App. 381, 386, 620 A.2d 804 (‘‘The conversation was not repeated verbatim by [the coconspirator]

but, nevertheless, his testimony expressly conveyed the

substance of the conversation. As such, [the coconspirator’s] testimony, by implication, presented out-of-court

statements that if offered as assertions or to prove the

facts asserted would run afoul of the hearsay rule.’’),

cert. denied, 225 Conn. 921, 625 A.2d 821 (1993); see

also Dutton v. Evans, 400 U.S. 74, 88, 91 S. Ct. 210, 27

L. Ed. 2d 213 (1970) (recognizing that witness’ statement

included implicit identification of accused). Accordingly, we must determine whether this inference of nonverbal conduct was admissible under the business

records exception as claimed by the defendant.

The business records exception, however, applies, at

most, to the contents of the documents themselves and

not to the implied hearsay drawn therefrom. ‘‘[O]nce

[the criteria of business records exception] have been

met by the party seeking to introduce the record . . .

it does not necessarily follow that the record itself is

generally admissible, nor does it mean that everything

in it is required to be admitted into evidence. . . . For

example, the information contained in the record must

be relevant to the issues being tried. . . . In addition,

the information contained in the [record] must be based

on the entrant’s own observation or on information of

others whose business duty it is to transmit it to the

entrant. . . . If the information does not have such a

basis, it adds another level of hearsay to the [record]

which necessitates a separate exception to the hearsay

rule in order to justify its admission.’’ (Emphasis

added; internal quotation marks omitted.) State v.

George J., 280 Conn. 551, 593–94, 910 A.2d 931 (2006),

cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed.

2d 573 (2007); see Pagano v. Ippoliti, 245 Conn. 640,

651, 716 A.2d 848 (1998) (meeting notes admissible as

business record but their description of statements

made by meeting participant constituted inadmissible
hearsay).

In the present case, the photographic array documents were offered not for the information contained

therein, but for the inference of the Browns’ nonverbal

assertive acts that is drawn from the documents. Thus,

the business records exception does not apply to the

inference that the Browns could not identify the defendant from the photographic array because that fact is

not contained in the documents themselves, but is

based on hearsay implied from a combination of the

documents and the Browns’ assertive actions or inactions. Accordingly, in light of our conclusion that the

business records exception does not apply to the

implied hearsay, the defendant was required to identify

an applicable hearsay exception that would allow for

its admission. Because the defendant has failed to identify any applicable exception, we conclude that the

court properly excluded the evidence concerning the

inability of the Browns to identify extrajudicially the

defendant in a photographic array.

The defendant also argues that, notwithstanding its

evidentiary admissibility, the evidence of nonidentification was ‘‘constitutionally admissible pursuant to the

defendant’s rights to due process and to present a

defense.’’ We disagree. Our conclusion that the court

properly applied the rules of evidence to exclude this

evidence disposes of the defendant’s constitutional

claim. See State v. Bennett, 324 Conn. 744, 764, 155

A.3d 188 (2017) (‘‘[i]f . . . we conclude that the trial

court properly excluded the proffered evidence, then

the defendant’s constitutional claims necessarily fail’’

[internal quotation marks omitted]).

III

The defendant finally claims that the court improperly excluded from evidence a video recording of an

interview between Morgan Brown and the police. The

defendant argues, contrary to the court’s ruling, that

the video recording of the interview was admissible

pursuant to the residual exception to the hearsay rule;

see Conn. Code Evid. § 8-9; because there was a reasonable necessity for its admission and it was trustworthy

and reliable. We disagree.

The following additional facts are relevant to our

resolution of the defendant’s claim. During the state’s

case-in-chief, the defendant filed a motion to admit the

entire video recording of an interview between Morgan

Brown and the police (interview), and a memorandum

of law in support thereof. The interview took place at

the New Haven Police Department on the night of the

murder of the victim. In the course of the interview,

which later was transcribed, Morgan Brown provided

the following description of events in response to a

series of questions posed by New Haven police detectives. She and Jeremy Brown were sitting in a parked
vehicle in front of 31 Kossuth Street when they observed

a vehicle driven by a young female with a light complexion park on Ann Street. She first answered that the

female driver was white, but then immediately corrected her answer to say that she was black. She

described the female as wearing her hair down, not up.

She further stated that she did not know what kind of

car the female was driving because she ‘‘was not really

paying attention to it,’’ and there were ‘‘so many’’ cars

because it was a busy street. Nonetheless, she gave a

description of the car as a newer, plain, charcoal grey,

four door car with dark tinted windows.

She stated that, approximately two to five minutes

later, ‘‘a boy comes out, well, I didn’t see him come out

[of] the car, but you put two and two together. He

walk[ed] down the street smoking a cigarette’’ and

approached the entrance to 31 Kossuth Street. On the

way to the entrance, the boy walked in front of the

Browns’ car and looked at them. She stated that ‘‘he

looked young, but [she] did [not] really see his face,’’

but she described the boy as black, about five feet, nine

inches tall, skinny, wearing a dark hooded sweatshirt,

with the hood up, jeans, and black shoes. Several questions later, she described the boy as having light skin.

After the victim opened the door, the boy entered

the residence and, while the door stayed open, she ‘‘just

heard the shot. He ran out [of] the house, ran across

the street, hopped in the car, and they pulled off.’’ The

boy had passed them again on the way back to his car,

and she did not see him with a gun. Morgan Brown

then entered 31 Kossuth Street and saw the victim lying

on the ground bleeding from his head just inside the

entrance.

The defendant sought to admit the entire video

recording of the interview pursuant to the residual

exception to the hearsay rule. See Conn. Code Evid.

§ 8-9. At oral argument on the motion, held outside the

presence of the jury, the defendant maintained that the

interview was reasonably necessary to his case because

Morgan Brown was unavailable for trial, and that the

interview was reliable on the basis of the circumstances. The state opposed the admission of the interview. The state disputed that admission of the video

recording of the interview was necessary because

defense counsel had not undertaken all efforts to procure Morgan Brown for trial. See General Statutes § 54-

82i (c) (delineating procedures to summon out-of-state

material witness). The state also argued that it would

not have an opportunity to cross-examine Morgan

Brown regarding the inconsistent statements made in

the interview and that the interview is not categorically

reliable because it was given to the police and recorded

on video.

The court then orally denied the defendant’s motion

to admit the video recording of the interview. The court
initially expressed its concern whether the defendant

had undertaken sufficient efforts to procure Morgan

Brown’s attendance by way of an interstate subpoena,

but it rested its decision on the sole ground that the

interview failed to meet the trustworthy and reliable

requirement. In particular, the court recognized that

the interview occurred immediately after the shooting,

was given to the police, and was video recorded, but

it determined that those circumstances, alone, did not

make the interview trustworthy and reliable. The court

reasoned that the inability of the state to cross-examine

Morgan Brown as to the ‘‘clear ambiguities in her statement,’’ and her ability to perceive the shooter, were fatal

to the admission of the video recording of the interview.

We turn next to the law and standard of review that

governs the defendant’s claim. ‘‘[I]n order to establish

reversible error on an evidentiary impropriety, the

defendant must prove both an abuse of discretion and

a harm that resulted from such abuse.’’ (Internal quotation marks omitted.) State v. Jenkins, 271 Conn. 165,

189, 856 A.2d 383 (2004); see State v. Bennett, supra,

324 Conn. 761–62 (affording abuse of discretion review

to claim that court improperly determined that hearsay

statement was not admissible under residual

exception).

‘‘The legal principles guiding the exercise of the trial

court’s discretion regarding the admission of hearsay

evidence under the residual exception are well established. An [out-of-court] statement is hearsay when it

is offered to establish the truth of the matters contained

therein. . . . As a general rule, hearsay evidence is not

admissible unless it falls under one of several well established exceptions. . . . The purpose behind the hearsay rule is to effectuate the policy of requiring that

testimony be given in open court, under oath, and subject to cross-examination.’’ (Internal quotation marks

omitted.) State v. Bennett, supra, 324 Conn. 762. Section

8-9 of the Connecticut Code of Evidence, which is ‘‘[t]he

residual, or catchall, exception to the hearsay rule

allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if: (1)

there is a reasonable necessity for the admission of the

statement, and (2) the statement is supported by the

equivalent guarantees of reliability and trustworthiness

essential to other evidence admitted under the traditional hearsay exceptions. . . . [T]he residual hearsay

exceptions [should be] applied in the rarest of cases

. . . .’’ (Citations omitted; internal quotation marks

omitted.) Id.

In Bennett, our Supreme Court considered whether

the trial court abused its discretion in denying the

admission, pursuant to § 8-9 of the Connecticut Code of

Evidence, of a recorded statement made by a purported

eyewitness to the police on the same day that the victim

had been murdered. Id., 760. There, the trial court
‘‘rested its decision solely on the ground that [the witness’] statement lacked sufficient reliability and trustworthiness.’’ Id., 763. Our Supreme Court concluded

that the trial court had not abused its discretion in

denying the admission of the witness’ statement

because the witness ‘‘had never been subjected to crossexamination regarding the circumstances surrounding

her observations of the incident. A declarant’s availability for cross-examination has been deemed particularly

significant in determining whether hearsay evidence is

supported by guarantees of trustworthiness and reliability. . . . [The witness] conceded in her statement

that the lighting was too limited to make out any distinguishing features of the people at the scene. [The witness] was never subject to cross-examination to further

explore her ability to properly observe the events that

she reported or her ability to accurately hear the sounds

and statements that she had reported (i.e., how far she

was from the incident, whether she has any visual or

hearing impairments, whether there were obstructions

or distractions at the time). . . .

‘‘Additionally, the evidence at trial not only failed

to materially corroborate [the witness’] statement, it

contradicted her statement in part. . . . None of the

witnesses reported hearing any gunshots, and [the victim’s] injuries were inflicted by a knife. [The witness’]

report that a man in a yellow shirt was kneeling beside

the victim stating, Oh, I killed him. I killed him, was

consistent with the other witnesses only insofar as they

reported that [the victim’s friend] wore a yellow shirt

as he knelt by [the victim]; no one reported that anyone

had made statements remotely consistent with that

statement or any others recounted by [the witness].

Given that [the witness’] report of this inculpatory statement constituted hearsay within hearsay, the lack of

corroboration bore significantly on its indicia of reliability.’’ (Citations omitted; internal quotation marks omitted.) Id., 763–64.

In the present case, as in Bennett, the eyewitness,

Morgan Brown, never was subjected to cross-examination; thus, the trustworthiness and reliability of the

interview is undermined by the parties’ inability to question her as to her ability to perceive the events that

night. We agree with the trial court that cross-examination was particularly important given the substance of

Morgan Brown’s interview. She told the police that the

driver was a black female with a light complexion, however, it is unclear the extent to which the allegedly

dark tinted windows on the female’s vehicle hindered

Morgan Brown’s observation. She also provided a

description of the car that was driven by the female,

but could not recall anything distinctive about it

because there were ‘‘so many’’ cars because it was a

busy street, and she ‘‘really wasn’t paying attention to

it.’’ She also told the police that the shooter had twice

walked directly in front of the vehicle in which she was
sitting and looked at her, but she later discounted her

observation by stating that she ‘‘did [not] really see his

face’’ and that he was wearing the hood on his

sweatshirt.

The state also did not have the opportunity to crossexamine Morgan Brown as to the critical uncertainties

contained within the interview. For example, she told

the police that she saw the shooter walking down the

street and, although she did not see what car he came

from, that he must have exited the female’s car. She

further stated that when the shooter rapidly exited the

residence, he hopped in ‘‘the car and they pulled off.’’

It is unclear from both of these statements which car,

if any, the shooter came from and to which car he

returned.

Furthermore, also as in Bennett, the evidence presented at trial failed to corroborate in many material

respects, and actually contradicted, Morgan Brown’s

version of events. For instance, Morgan Brown stated

that the car in which the shooter purportedly arrived

was driven by a female, however, Helwig, a male, testified at trial that he was the driver of the car that the

defendant arrived and left in. She also told the police

that the shooter departed 31 Kossuth Street without a

gun, conversely, there was evidence presented at trial

to establish that the defendant sprinted back to the

vehicle with a gun in his hand and, after entering the

vehicle, he pointed the gun at Helwig and told him to

go. Therefore, we conclude that the court did not abuse

its discretion in concluding that the video recording of

Morgan Brown’s interview was not sufficiently reliable

or trustworthy to support its admission under the residual exception.

The defendant also argues that, ‘‘the defendant’s constitutional rights to present a defense and to confrontation and due process requires the admission of this

evidence without strict adherence to the evidentiary

rules.’’ As noted in part II of this opinion, such a claim

is without merit. See State v. Bennett, supra, 324 Conn.

764 (‘‘[i]f . . . we conclude that the trial court properly

excluded the proffered evidence, then the defendant’s

constitutional claims necessarily fail’’ [internal quotation marks omitted]).

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant originally appealed to our Supreme Court pursuant to

General Statutes § 51-199 (b) (3). The appeal subsequently was transferred

to this court pursuant to Practice Book § 65-1.

2

It is unclear whether ‘‘Perry’’ was this individual’s first or last name

because he only was referred to as Perry throughout the trial.

3 Section 8-5 of the Connecticut Code of Evidence provides in relevant

part: ‘‘The following are not excluded by the hearsay rule, provided the

declarant is available for cross-examination at trial . . . (2) The identification of a person made by a declarant prior to trial where the identification

is reliable.’’

4 Section 8-4 (a) of the Connecticut Code of Evidence provides: ‘‘Any

writing or record, whether in the form of an entry in a book or otherwise,
made as a memorandum or record of any act, transaction, occurrence or

event, shall be admissible as evidence of the act, transaction, occurrence

or event, if the trial judge finds that it was made in the regular course of

any business, and that it was the regular course of the business to make

the writing or record at the time of the act, transaction, occurrence or event

or within a reasonable time thereafter.’’

5 Section 8-9 of the Connecticut Code of Evidence provides: ‘‘A statement

that is not admissible under any of the foregoing exceptions is admissible

if the court determines that (1) there is a reasonable necessity for the

admission of the statement, and (2) the statement is supported by equivalent

guarantees of trustworthiness and reliability that are essential to other

evidence admitted under traditional exceptions to the hearsay rule.’’

6 The defendant also argues that the court erroneously made three subsidiary factual findings that (1) Jackson had not returned to the bedroom to

obtain clothing for the defendant, (2) Nixon and Jackson were informed

that they had the right to refuse to consent to the search, and (3) no officer

pointed a weapon at Nixon when they entered the home or at Nixon and

Jackson when they sought consent to search the bedroom. These findings

warrant little discussion because there was evidence presented at the motion

to suppress hearing to support them. First, Podsiad testified that Jackson

was not permitted to return upstairs, and Nixon testified that there were

officers standing at the bottom of the stairs preventing anyone from going

back upstairs. Second, Sergeant Jacobson testified that both Nixon and

Jackson each had signed a consent to search form that contained an express

disclaimer that they had ‘‘been informed of [their] constitutional rights not

to have a search made without a search warrant, and [their] right to refuse

to consent to such a search . . . .’’ Third, although there was testimony

that the officers pointed their guns at Jackson when they first entered the

bedroom, as they were aware that the defendant potentially was armed,

there was no evidence presented that an officer pointed a gun at Jackson

at any other point in time, or at Nixon at any time.

7 See State v. Brunetti, supra, 279 Conn. 70 (‘‘[i]t is true that, if the police

had instructed the [individual who provided consent] that they would obtain

a search warrant if he had refused to give consent, then such consent would

have been involuntary, for constitutional purposes, because the intimation

that a warrant will automatically issue is as inherently coercive as the

announcement of an invalid warrant’’ [internal quotation marks omitted]).

8 The state alternatively argues on appeal that the evidence seized from

the bedroom would have been admissible, even if it was seized therefrom

in violation of the defendant’s constitutional rights, pursuant to the inevitable

discovery doctrine. See State v. Shields, 308 Conn. 678, 689 n.13, 69 A.3d

293 (2013), cert. denied, 571 U.S. 1176, 134 S. Ct. 1040, 188 L. Ed. 2d 123

(2014). We need not reach this alternative argument in light of our conclusion

that the court’s voluntariness finding was not clearly erroneous.

9 We note that the rationale for the identification exception in § 8-5 (2)

of the Connecticut Code of Evidence applies with equal force to positive

identifications and nonidentifications. Section 8-5 (2) of the Connecticut

Code of Evidence has two requirements: that the declarant is available for

cross-examination and that the identification is reliable. If the Browns had

been available for trial, the opportunity to test what they said or did during

their reviews of the photographic array would have been the same regardless

of whether they made an identification. Similarly, the reliability of the assertion resulting from the identification procedure is the same regardless of

whether it resulted in a positive identification or a nonidentification. Consequently, had the Browns been available to testify at the defendant’s trial,

we see no reason why § 8-5 (2) of the Connecticut Code of Evidence would

not apply to their failure to identify the defendant prior to trial.

10 The state argues on appeal that the documents were irrelevant as offered

for this purpose because the circumstances under which the Browns

observed the shooter had not been admitted into evidence. We disagree

with the state that the court abused its discretion in determining that the

business records were relevant if offered for this purpose. See State v.

Fernando V., 331 Conn. 201, 212, 202 A.3d 350 (2019) (trial court’s relevancy

determination is subject to abuse of discretion review); see also §§ 4-1 and

4-2 of the Connecticut Code of Evidence; E. Prescott, Tait’s Handbook of

Connecticut Evidence (6th Ed. 2019) § 4.1, pp. 144–46. This inference is

relevant as exculpatory evidence as to whether the defendant was the individual who had shot the victim. If the Browns, who were in the proximity of

31 Kossuth Street when the victim was shot, were unable to identify the

defendant, from a photographic array, as the shooter, this fact would tend
to make it more probable that the defendant was not the shooter.