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*********************************************** 
STATE OF CONNECTICUT v.

LUIS M. RODRIGUEZ

(SC 20372)

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

Mullins, Kahn and Ecker, Js.*

Syllabus

Convicted, after a jury trial, of sexual assault in the first degree and criminal

attempt to commit sexual assault in the first degree, the defendant

appealed. The defendant’s conviction stemmed from an incident in which

two Hispanic men pulled a woman, who was walking on a street in

New Britain, into the backseat of their car and sexually assaulted her.

Approximately ten years after the incident, the defendant became a

person of interest based on a match between the DNA sample that had

been extracted from the victim’s sexual assault evidence kit and a sample

of the defendant’s DNA that had been placed into a database at some

point after the victim’s assault. The police interviewed the defendant,

and he denied that the incident in question occurred but consented to

the taking of a buccal swab, which the police submitted to the state

forensic laboratory for analysis. The laboratory subsequently reported

a match between the DNA from the defendant’s buccal swab and that

taken from the victim’s sexual assault evidence kit, and the police interviewed the defendant again. During the second interview, the defendant

admitted that he did have a threesome after he picked up a man and a

woman near an automobile parts store. At trial, three laboratory reports

analyzing the DNA samples were introduced into evidence through the

testimony of P, a forensic science examiner with the state forensic

laboratory. The first of the three reports was produced in 2007 and

described the results of the victim’s sexual assault evidence kit. The

second and third reports were produced in 2016 and were based on

comparisons of the DNA samples from the sexual assault evidence kit

and the defendant’s buccal swab. P testified regarding the procedures

used to test the DNA evidence and the results contained in the three

reports. The third and final report analyzed the sperm-rich and epithelialrich fractions of the vaginal, oral and genital swabs, including a 2016

reworking of the sperm-rich fraction of the vaginal swabs, and the

defendant’s buccal swab. That report concluded that the defendant was

a potential contributor to the DNA profile from the sperm-rich fraction

of the vaginal swabs and that the expected frequency of individuals who

could be a contributor to that DNA profile was approximately 1 in

230,000 in the Hispanic population. On appeal from the judgment of

conviction, the defendant claimed, inter alia, that the trial court had

violated his right to confrontation by allowing P to testify about the

results of the DNA identification analysis without requiring testimony

from the individual who generated the DNA profiles. Held:

1. The defendant’s unpreserved claim that the trial court violated his right

to confrontation failed under State v. Golding (213 Conn. 233) because

it was unclear whether the 2016 retesting of the vaginal swab was

performed by someone other than P, and, therefore, the record was

inadequate to establish whether a violation of the defendant’s right to

confrontation occurred.

2. The defendant could not prevail on his unpreserved claim that his due

process right was violated by the introduction of DNA identification

evidence that was unreliable: the defendant failed to establish a constitutional violation under Golding because the jury was presented with

evidence that there was a genetic profile match and the statistical rarity

of the match, P explained the statistical method she used to determine

the rarity of the match, and defense counsel had the opportunity to

cross-examine P, present his own statistical evidence, or request a jury

instruction; moreover, this court declined the defendant’s invitation to

exercise its supervisory authority to require trial courts to instruct juries

on the meaning of random match probability when DNA evidence is

the only evidence identifying the defendant as the perpetrator.

3. There was no merit to the defendant’s claim that a random match probabil-
ity of 1 in 230,000 in the Hispanic population, by itself, was insufficient

to prove that he was guilty beyond a reasonable doubt; the evidence

establishing the identity of the defendant was not based on DNA evidence

alone, as the video recordings of the defendant’s two interviews with the

police, which were played for the jury and which included inconsistent

statements that indicated the defendant’s consciousness of guilt, provided additional evidence to establish the defendant’s guilt beyond a

reasonable doubt.

(One justice concurring separately)

Argued December 19, 2019—officially released September 24, 2020**

Procedural History

Substitute information charging the defendant with

two counts of the crime of sexual assault in the first

degree and one count of criminal attempt to commit

sexual assault in the first degree, brought to the Superior Court in the judicial district of New Britain and

tried to the jury before Dewey, J.; verdict and judgment

of guilty, from which the defendant appealed. Affirmed.

Mark Rademacher, assistant public defender, for the

appellant (defendant).

Timothy J. Sugrue, assistant state’s attorney, with

whom, on the brief, were Brian W. Preleski, state’s

attorney, and Brett J. Salafia, senior assistant state’s

attorney, for the appellee (state).
Opinion

McDONALD, J. The defendant, Luis M. Rodriguez,

appeals from the judgment of conviction, rendered after

a jury trial, of two counts of sexual assault in the first

degree and one count of criminal attempt to commit

sexual assault in the first degree. The defendant claims

that (1) the trial court violated his right to confrontation,

as articulated in Crawford v. Washington, 541 U.S. 36,

124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), by allowing

a laboratory analyst to testify about the results of a

DNA identification analysis without requiring testimony

from the individual who generated the DNA profiles, (2)

his due process right was violated by the introduction of

DNA identification evidence that was unreliable under

Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53

L. Ed. 2d 140 (1977), because of the danger that the jury

would not understand the meaning of random match

probability, and (3) the evidence is insufficient to sustain his conviction. We disagree and, accordingly, affirm

the judgment of the trial court.

The record reveals the following facts, which the jury

reasonably could have found, and procedural history.

In the early morning, the victim1 was walking from her

residence on Martin Luther King Drive in New Britain to

a nearby convenience store. Near Lafayette and Beaver

Streets, a gold, four door sedan with two male occupants stopped and asked the victim if she knew where

they could buy cocaine. The victim told the men that

she did not know, and they drove away. Less than five

minutes later, the men returned, and one of them pulled

the victim into the backseat with him. After driving for

between ten and fifteen minutes, the vehicle stopped

at an abandoned housing complex. The driver got into

the backseat, and the victim sat between the two men.

The victim testified that both men were Hispanic, one

man ‘‘was kind of thin and the other one was kind of

heavy,’’ and both spoke Spanish to each other during

the attack.

After the men removed, or had the victim remove,

her clothing, ‘‘[t]hey started putting their fingers . . .

[i]nto [her] vagina’’ against her will. The thin man

engaged in forcible penile-vaginal intercourse with the

victim, made her perform oral sex on him, and ‘‘was

pretty much done with [her] within probably about five

minutes . . . .’’ The heavier man could not maintain

an erection, and he forced the victim to perform oral sex

and forcibly digitally penetrated her vagina. Thereafter,

the heavier man pulled the victim out of the car by her

hair and ejaculated while ‘‘rubbing his penis up against

the inside of [the victim’s] thigh.’’

After the assault, the two men drove away, and the

victim ‘‘walked quite a ways’’ and came upon a house.

The occupant of the house, Juanita Isaacs, testified that

the victim banged on her door and asked Isaacs for
help, telling her that she had been raped. Isaacs called

the police, Officer Alan Vincent Raynis, Jr., of the New

Britain Police Department responded, and the victim

told him what happened. Raynis took the victim back

to the scene of the crime, where he took several photographs and seized a pair of jeans, a sports brassiere,

and panties.

The victim was transported to New Britain General

Hospital, where she was examined, and a sexual assault

evidence kit was processed. The examining nurse

swabbed the victim’s vaginal and oral cavities, the exterior surface of her genitalia, and her inner thigh to

collect any biological material that could be used to

identify the perpetrators. Raynis collected the kit and

submitted it to the state forensic laboratory for analysis.

Thereafter, the victim provided the police with a sworn,

written statement regarding the incident.

The laboratory staff found sperm in the vaginal smear

and genital swabs. The staff did not find sperm on the

oral sample, but other tests revealed the presence of

human seminal fluid protein. The laboratory staff

extracted DNA from the evidentiary materials and

searched it against DNA contained in the Combined

DNA Index System (CODIS).2 No matching profiles

were found.

Approximately ten years later, the defendant became

a person of interest in the sexual assault based on a

CODIS match between the evidentiary DNA sample that

had been extracted from the victim’s sexual assault

evidence kit and a sample of the defendant’s DNA that

had been placed into CODIS at some point after the

victim’s assault. In August, 2016, a detective from the

New Britain Police Department interviewed the defendant. The detective informed the defendant that he was

a suspect in a sexual assault involving two men and

a woman. The defendant denied having had sex in a

threesome, which he described as disgusting, and said

he did not allow women in his car. The defendant also

described to the police vehicles that he previously

owned, which did not include a gold, four door sedan,

and informed the police that he currently did not have

any car registered in his name. The defendant then

consented to the taking of a buccal swab, which the

police submitted to the laboratory for analysis.

Several months later, the laboratory reported a match

between the DNA from the defendant’s buccal swab

and that taken from the victim’s sexual assault evidence

kit. In December, 2016, the police again spoke with the

defendant. The detective informed the defendant that

his DNA was found in the vaginal sample from the

victim. Contrary to his previous statement to the police,

the defendant admitted that he did have a threesome

on two occasions in hotels in Plainville and on the

Berlin Turnpike. He stated that one incident involved

a ‘‘skinny, Puerto Rican’’ girl and occurred when he
picked up a man and a woman near an AutoZone store

and dropped them off at a store on Broad Street in New

Britain. The detective also informed the defendant that,

in addition to the assault, the victim complained of

being robbed of several hundred dollars, and the defendant replied with words to the effect of: ‘‘That’s not

me. It’s the other guy.’’

The defendant was arrested and charged in the operative information with two counts of sexual assault in

the first degree and one count of criminal attempt to

commit sexual assault in the first degree. The trial commenced in March, 2018. At trial, three laboratory reports

analyzing the DNA samples were introduced into evidence through the testimony of Angela Przech, a forensic science examiner with the laboratory, whose testimony and related evidence are the subject of the

defendant’s confrontation and due process claims.

First, the state introduced a laboratory report dated

November 26, 2007, that describes the results of the

sexual assault evidence kit. The report indicates that

the laboratory tested the vaginal, oral, and genital

swabs, and it states that the material on the swabs was

divided into sperm-rich and epithelial-rich fractions, all

of which yielded DNA.3 The report further states that

item number 1E, the oral swabs, and item number 1I,

the genital swabs, ‘‘were consumed in testing,’’ and that

the balance of item number 1C, the vaginal swabs, ‘‘was

retained in the laboratory.’’ The report notes that the

extracted DNA profiles of item numbers 1I and 1C were

entered into CODIS for comparison and no matches

were reported at the time the report was issued. The

report was signed by Przech and Melanie G. Ktorides,

a forensic science examiner.

Second, over the state’s relevance objection, the

defendant introduced into evidence an unofficial laboratory report dated September 12, 2016, which was

marked ‘‘DNR’’ for ‘‘do not report’’ and was never officially released. It indicates that the laboratory tested

the sperm-rich and epithelial-rich fractions of the vaginal, oral and genital swabs, as well as the defendant’s

2016 buccal swab. The unofficial report concluded that

the defendant ‘‘is included as a potential contributor to

the DNA profile’’ from the sperm-rich fraction of the

vaginal swabs. It states that the ‘‘expected frequency

of individuals who could be a contributor to the DNA

profile . . . from [the sperm-rich fraction of the vaginal swabs] is . . . approximately 1 in 4.9 in the Hispanic population.’’4 The report was signed by Przech,

as the analyst, and a technical reviewer.

Finally, the state introduced a laboratory report dated

December 16, 2016. Similar to the September, 2016

report, the December report analyzed the sperm-rich

and epithelial-rich fractions of the vaginal, oral and

genital swabs, as well as the defendant’s 2016 buccal

swab. It also added three new items of evidence to the
list, including ‘‘[item number] 1C [v]aginal [s]wabs,’’

and noted that this item had been separated into spermrich and epithelial-rich fractions. The report concluded

that the sperm-rich fraction of the vaginal swabs was

a mixture, and the defendant ‘‘is included as a potential

contributor to the DNA profile . . . .’’ Unlike the September, 2016 report, however, the December, 2016

report concluded that the ‘‘expected frequency of individuals who could be a contributor to the DNA profile

. . . from [the sperm-rich fraction of the vaginal swabs]

is . . . approximately 1 in 230,000 in the Hispanic population.’’5 The report was again signed by Przech, as

the analyst, and a technical reviewer.

At trial, Przech testified regarding the procedures

used to test the DNA evidence and the results contained

in her three reports. Specifically, she testified that, in

2007, the laboratory used a DNA testing kit called Identifiler to develop the DNA profiles from the sexual

assault evidence kit and produced the November, 2007

report. She explained that the laboratory had successfully separated sperm cells from epithelial cells in the

various evidentiary samples.

Przech further testified that, in 2016, the New Britain

Police Department submitted a known buccal swab of

a suspect in the case to the laboratory for comparison

with the evidentiary DNA that had been extracted in

2007. She explained that, rather than having an analyst

physically process the defendant’s buccal swab, the

laboratory processed it via ‘‘an automated procedure’’

in which ‘‘a robot’’ extracts and processes DNA from

the known buccal sample. Przech compared the defendant’s DNA profile to the profiles that had been

extracted from the evidentiary swabs in 2007 and concluded that the defendant was a ‘‘potential contributor’’

to the DNA mixture that had been extracted from the

sperm-rich fraction of the vaginal swabs.

Przech testified that the December, 2016 report set

forth her conclusions regarding the comparison of the

defendant’s buccal swab and the DNA taken from the

sexual assault evidence kit. She explained that, prior to

the creation of the December, 2016 report, her technical

leader requested that ‘‘additional work be done with

the sample in order to make sure that there was a fully

developed profile, and it was to the standard that was

required in 2016 and not the standard that was required

in [2007].’’ Przech clarified that the unofficial report

from September, 2016, ‘‘is not an official report generated. [These are] case notes within [her] case jacket

that are clearly marked DNR, which is do not report.

. . . No, [this is not an official report]; this is not a

report at all. It never went out. It never went to the

. . . [New Britain Police Department]. So, it’s considered case notes within [her] case jacket.’’

On redirect examination, Przech further explained

that the sperm-rich fraction of the vaginal swabs was
‘‘rework[ed]’’ in 2016 to comply with contemporary

interpretations of the rules relating to statistical analyses. Przech explained that she ‘‘chose not to issue [the

unofficial, September, 2016] report because the information that was there was not complete according to

our rules for 2016 statistic[al] [data] generation,’’ which

required taking into account ‘‘many different parts of

the profile that we didn’t have to consider in 2007.’’

Because there was not a complete profile, the unofficial,

September, 2016 report did not give ‘‘the whole story,’’

and Przech’s technical leader requested that the spermrich vaginal swab be ‘‘amplified more and [Przech] can

develop a different profile and get better results. [The]

sample that [Przech] had in 2007 wasn’t complete.’’

Przech reworked the sample using a new kit, called

Identifiler Plus, which was more sensitive than the earlier kit to degraded DNA and also to inhibitors, such

as bacteria, that could be found in a sample. Finally,

she explained that ‘‘the [September, 2016] report that

was DNR, that never went out, that sample for [item

number] 1CB [the sperm-rich fraction of the vaginal

swabs] was a different profile than the one that was

issued [i]n [the December, 2016 report] . . . . So, they

are two different profiles.’’

Following the trial, the jury found the defendant

guilty on all counts. The defendant was sentenced to a

total effective sentence of thirty years incarceration.

He appealed from the judgment of conviction to the

Appellate Court, and the appeal was transferred to this

court. Additional facts will be set forth as necessary.

I

We first consider the defendant’s claim that the trial

court violated his right to confrontation, as articulated

in Crawford v. Washington, supra, 541 U.S. 36, by

allowing Przech to testify about the results of the DNA

identification analysis without requiring testimony from

the individual who generated the DNA profiles. Specifically, the defendant contends that, during questioning

about the disparate statistical results presented in the

two 2016 reports, Przech testified that she did not conduct the testing underlying those reports. Rather, the

defendant argues, Przech used the unnamed analyst’s

data to deduce the characteristics and sources of the

DNA profiles. The defendant concedes that he did not

preserve this claim properly at trial and seeks review

under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d

823 (1989), as modified by In re Yasiel R., 317 Conn.

773, 781, 120 A.3d 1188 (2015).6 The state contends that

the record is inadequate to establish factually whether

a confrontation right violation occurred. We agree with

the state.7

At the outset, we note that the defendant’s claim is not

based on any of the 2007 testing because, as the defendant acknowledges, ‘‘Przech did not use the testing in

2007 of the . . . vaginal sample to identify the defendant
as the assailant.’’ It also is not based on the admission

of the evidence of the DNA profile generated from the

defendant’s buccal swab in 2016, which was extracted

in the automated process that Przech described.8 Finally,

the defendant makes no claim that his confrontation

right was violated by his own admission of the unofficial, September, 2016 report into evidence. Rather, the

defendant asserts that it is the admission of the DNA

identification evidence contained in the December, 2016

report and Przech’s corresponding testimony that violated his confrontation right because someone other

than Przech performed the 2016 retesting of the vaginal

sample.

Because the defendant seeks Golding review of this

unpreserved claim, we begin by determining whether

this claim is reviewable. ‘‘The first two [prongs of Golding] involve a determination of whether the claim is

reviewable . . . .’’ (Internal quotation marks omitted.)

State v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004),

cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d

110 (2005). Under the first prong of Golding, for the

record to be adequate for review, the record must contain sufficient facts to establish that a violation of constitutional magnitude has occurred. See, e.g., State v.

Brunetti, 279 Conn. 39, 55–56, 901 A.2d 1 (2006), cert.

denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85

(2007). ‘‘[W]e will not attempt to supplement or reconstruct the record, or to make factual determinations, in

order to decide the defendant’s claim.’’ State v. Golding,

supra, 213 Conn. 240. As a result, ‘‘we will not address

an unpreserved constitutional claim [i]f the facts

revealed by the record are insufficient, unclear or

ambiguous as to whether a constitutional violation has

occurred . . . .’’ (Internal quotation marks omitted.)

State v.Canales, 281 Conn. 572, 581, 916 A.2d 767 (2007).

Here, the record is inadequate to establish that the

defendant’s confrontation right was violated because it

is unclear whether the 2016 retesting of the vaginal

swab was performed by someone other than Przech.9

The following testimony suggests that Przech performed the testing herself. On cross-examination,

defense counsel twice asked Przech whether ‘‘you conducted’’ additional testing of the vaginal sample in 2016.

(Emphasis added.) Przech responded ‘‘[y]es’’ both

times.10 On redirect examination, after Przech testified

about ‘‘rework[ing] the sample’’ in 2016, the prosecutor

asked: ‘‘[I]s that what you did in this case?’’ (Emphasis

added.) Przech replied: ‘‘Yes, [item number] 1CB [vaginal sample].’’ Thereafter, Przech testified that, following

the unofficial, September, 2016 report, her technical

leader told her that the vaginal sample ‘‘can be amplified

more and [that she could] develop a different profile

and get better results.’’ The prosecutor then asked:

‘‘[W]ere you able to amplify the sample?’’ (Emphasis

added.) Przech responded: ‘‘I was able to redo the sample using a new kit that we used.’’ (Emphasis added.)
Przech further testified that the December, 2016 report

was based on this ‘‘redo’’ of the sample, which resulted

in a different DNA profile than the one on which the

unofficial, September, 2016 report was based. Defense

counsel did not conduct a recross-examination of

Przech.

But Przech also testified on cross-examination, without referencing a specific test, that ‘‘I was the analyst

who analyzed the data. I didn’t develop the profiles or

do the lab work.’’ In light of this inconsistent testimony,

it is, at best, unclear whether someone other than

Przech retested the vaginal samples in 2016, and any

conclusion we could attempt to draw as to who retested

the vaginal samples would be purely speculative. As

we have explained, ‘‘[i]t is incumbent upon the [defendant] to take the necessary steps to sustain [his] burden

of providing an adequate record for appellate review.

. . . Our role is not to guess at possibilities . . . but

to review claims based on a complete factual record

developed by a trial court. . . . Without the necessary

factual and legal conclusions furnished by the trial court

. . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.’’ (Internal

quotation marks omitted.) State v. Brunetti, supra, 279

Conn. 63. Because it is the function of the trial court,

not this court, to make factual findings; see, e.g., State

v. Satchwell, 244 Conn. 547, 562, 710 A.2d 1348 (1998);

the defendant was required to clarify the record as

to whether someone other than Przech conducted the

retesting in 2016. Because the facts revealed by the

record are inadequate to establish whether the alleged

constitutional violation did, in fact, occur, we conclude

that the defendant’s claim fails under the first prong of

Golding, and, thus, we decline to review it.

II

We next turn to the defendant’s contention that his

due process right was violated by the introduction of

DNA identification evidence that was unreliable under

Manson v. Brathwaite, supra, 432 U.S. 98, because of

the danger that the jury would assume that a random

match probability is the likelihood that the defendant

is not the source of the DNA in the vaginal sample.11

The defendant again seeks review of this unpreserved

claim under State v. Golding, supra, 213 Conn. 239–40.12

See footnote 6 of this opinion. We conclude that the

defendant’s claim fails under the third prong of Golding

because he has not established a constitutional violation.

To understand the defendant’s claim, we begin with

background principles of DNA evidence. DNA evidence

consists of two elements: (1) a determination that the

defendant’s genetic profile matches a genetic profile

present in the evidentiary sample, and (2) a statistical

calculation of the rarity of that match. See, e.g., State

v. Sivri, 231 Conn. 115, 155, 646 A.2d 169 (1994)
(explaining that calculation of rarity of match ‘‘generates a ratio which accompanies a match in order to

express the statistical likelihood that an unrelated individual chosen at random from a particular population

could have the same DNA profile as the suspect’’ (internal quotation marks omitted)). This is because a match

means little without statistical evidence that will allow

the fact finder to determine the strength of the match

and, thus, the strength of the inferential fact that the

defendant is the person whose DNA is present in the

actual evidentiary sample. See id., 155–56. Three types

of statistical methods, relevant to the defendant’s claim,

are used to express the rarity of the match: random

match probability, combined probability of inclusion,

and source probability. Each method describes the rarity of the match in a different way. The random match

probability is the probability that the defendant’s DNA

profile would match the DNA profile of an unrelated

member of the general population who is chosen at

random. See id., 155; see also State v. Small, 180 Conn.

App. 674, 685, 184 A.3d 816, cert. denied, 328 Conn.

938, 184 A.3d 268 (2018). The combined probability of

inclusion is employed when there is a mixed DNA profile, which indicates the presence of genetic material

from two or more contributors. See Roberts v. United

States, 916 A.2d 922, 927 (D.C. 2007). This method

‘‘takes all of the observed data and considers all possible

profiles that could produce that data. Then, it generates

a statistic, which expresses the probability that a random person would have any of those generated profiles.’’ B. Stiffelman, ‘‘No Longer the Gold Standard:

Probabilistic Genotyping Is Changing the Nature of

DNA Evidence in Criminal Trials,’’ 24 Berkeley J. Crim.

L. 110, 128 (2019). ‘‘Source probability is the probability

that someone other than the defendant is the source of

the DNA found at the crime scene.’’ (Internal quotation

marks omitted.) State v. Small, supra, 685. Neither the

random match probability nor the combined probability

of inclusion is a statement of source probability. To

conflate either type with source probability is to ascribe

a greater degree of certainty that the evidentiary sample

contains the defendant’s DNA than is warranted based

on a proper understanding of the random match probability or the combined probability of inclusion.13

Here, the defendant contends that, unless the prosecutor properly explained the DNA evidence to the jury,

the jury ‘‘would likely believe that a random match

probability of 1 in 230,000 is the likelihood that the

defendant is not the source of the DNA in the vaginal

sample.’’ (Emphasis omitted.) The defendant notes that

the prosecutor asked Przech only one question about

the statistical probability of the match, and, on crossexamination, Przech only briefly discussed her probability statement. The defendant contends that, because

random match probability was never explained to the

jury, and given the likelihood that jurors would misun-
derstand the DNA identification evidence, the evidence

was unreliable and introduced in violation of the due

process clause under Manson v. Brathwaite, supra, 432

U.S. 98. In short, the defendant contends that the jurors

likely would have misunderstood Przech’s testimony

regarding the combined probability of inclusion as indicating source probability rather than random match

probability.

The state claims that the defendant is not entitled to

Golding review of this unpreserved claim because it is

evidentiary given that (1) the statistical ‘‘evidence, on

its face, is neither fundamentally unfair nor materially

misleading,’’ (2) ‘‘the record offers no suggestion that

the jurors were potentially confused about the evidence,’’ and (3) ‘‘the defendant makes no claim that

the prosecutor mischaracterized or misused the . . .

evidence in his closing remarks to the jury.’’ Alternatively, the state claims that the defendant’s claim fails

the third prong of Golding because nothing in the record

improperly described random match probability.

Assuming the defendant’s claim asserts a constitutional violation and not merely an evidentiary issue, we

conclude that the defendant has failed to establish a

constitutional violation, and, accordingly, his claim fails

under the third prong of Golding. Contrary to the defendant’s assertions, the December, 2016 report and

Przech’s corresponding testimony were not unreliable

because the jury was presented with evidence that there

was a match and the statistical rarity of the match. See

State v. Sivri, supra, 231 Conn. 156 (‘‘because a match

between two DNA bands means little without data on

probabilities, the calculation of statistical probabilities

is an integral part of the process [of DNA matching]’’

(internal quotation marks omitted)). Przech also

explained that she used the combined probability of

inclusion to determine the rarity of the match between

the defendant’s buccal swab and the evidentiary sample, and nothing in the record improperly equates random match probability with source probability.

On direct examination, the prosecutor asked Przech

to explain the significance of the frequency numbers

contained in her December, 2016 report. Przech testified that she employed the combined probability of

inclusion. She properly explained that the combined

probability of inclusion is a mathematical calculation

representing ‘‘the statistical frequency for anyone that

would be included in that profile . . . .’’ (Emphasis

added.) She emphasized that the statistical frequency

was ‘‘not just for [the defendant], but for someone else

[who] could have a different combination of numbers

that could also be included in that profile.’’

Przech further noted that the DNA that had been

extracted from the sperm-rich fraction of the vaginal

swabs was a mixture containing DNA of three or more

persons. She explained that the laboratory cannot deter-
mine when or how recovered DNA is deposited in the

place that it is found, and the laboratory does not make

DNA derived ‘‘identity statements’’ regarding samples.

Rather, forensic science examiners compare ‘‘the

known profile of whoever it is to the sample’’ and ‘‘come

up with a conclusion, and then have a statistic that is

driven by the [evidentiary] sample, and not by the

known [sample].’’ Przech agreed with defense counsel

that she could say only ‘‘that [the defendant] is a potential contributor and that, as of [December 16, 2016], it

was 1 in 230,000 in the Hispanic population as potential

contributors.’’ Przech did not suggest that the combined

probability of inclusion is a statement of source probability.

The parties’ closing arguments only indirectly

addressed Przech’s probability statistics and could not

reasonably be viewed as confusing or misleading the

jury as to the meaning of the combined probability

of inclusion or random match probability. During the

state’s closing argument, the prosecutor emphasized to

the jurors that Przech’s testimony regarding the DNA

evidence was just one piece of a puzzle and that ‘‘[p]utting these puzzle pieces together and deciding whether

. . . there’s a picture . . . [is] your job, and the judge

is going to instruct you on it.’’ Defense counsel

reminded the jurors that the laboratory does not make

identity statements regarding who is or is not guilty of

a crime. Defense counsel also drew the jury’s attention

to the statistical discrepancies between the September,

2016 and December, 2016 reports.

There is no indication in the record that the jury

misunderstood the meaning of the combined probability of inclusion or random match probability. Cf. State

v. Pappas, 256 Conn. 854, 887, 776 A.2d 1091 (2001)

(during jury deliberations, jury sent note asking

whether DNA from certain evidence was ‘‘a match to the

[defendant’s] known DNA sample’’ (internal quotation

marks omitted)). If the defendant nonetheless believed

that the DNA evidence was unreliable, misleading or

required a more detailed explanation, he had the opportunity to object to the testimony, cross-examine Przech,

present his own expert or other contradictory evidence,

and request a jury instruction. See, e.g., id., 889 (‘‘a

defendant may offer an opposing expert or, as the defendant here did, use cross-examination to critique the

analysis and interpretation of mtDNA evidence’’); State

v. Haughey, 124 Conn. App. 58, 75, 3 A.3d 980 (‘‘inconclusive characteristics of the [combined probability of

inclusion] method’s results were the proper subject for

cross-examination’’), cert. denied, 299 Conn. 912, 10

A.3d 529 (2010); State v. Lindsey, Docket No. 02C01-

9804-CR-00110, 1999 WL 1095679, *12 (Tenn. Crim. App.

October 28, 1999) (‘‘the defense ably challenged the

state’s DNA proof through intense, probing cross-examination of the state’s expert and presentation of its own

expert proof’’); cf. Daubert v. Merrell Dow Pharmaceu-
ticals, Inc., 509 U.S. 579, 596, 113 S. Ct. 2786, 125 L.

Ed. 2d 469 (1993) (‘‘[v]igorous cross-examination, presentation of contrary evidence, and careful instruction

on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence’’). Throughout defense counsel’s extensive crossexamination of Przech, defense counsel never sought

to elicit any additional information regarding the combined probability of inclusion; nor did he present his

own statistical evidence or request a jury instruction.

The defendant also contends that, without guidance,

the jury was likely to overvalue the DNA evidence and

ignore the other types of evidence pointing toward or

away from his guilt. One way to address that concern

is an instruction to the jury on the need to consider all

of the evidence in a case. See, e.g., State v. Pappas,

supra, 256 Conn. 889. Here, despite the fact that the

defendant did not request an instruction addressing the

DNA evidence, the trial court did instruct the jurors

that, ‘‘[i]n deciding what the facts are, you must consider

all the evidence.’’ The court also instructed the jurors

that expert testimony is presented to assist them but

that ‘‘[n]o such testimony is binding [on] you, and you

may disregard the testimony either in whole or in part.

It is for you to consider the testimony with the other

circumstances in the case and, using your best judgment, determine whether you will give any weight to

it . . . .’’ Finally, the court reminded the jurors that

the defendant denies he is the person involved in the

assault and instructed them that they ‘‘must be satisfied

beyond a reasonable doubt of the identity of the defendant as the one who committed the crime . . . .’’ In

the absence of evidence to the contrary, we presume

that the jury followed the court’s instructions. See, e.g.,

State v. O’Neil, 261 Conn. 49, 82, 801 A.2d 730 (2002).

Given that Przech properly explained the statistical

method she used to determine the rarity of the match,

and defense counsel had the opportunity to cross-examine her, present his own statistical evidence, or request

a jury instruction on this point, we conclude that the

defendant has failed to establish a constitutional violation, and, as such, his claim fails under the third prong

of Golding.

The defendant also asks us to exercise our supervisory authority to require trial courts to instruct the jury

on the meaning of random match probability when DNA

evidence is the only evidence identifying the defendant

as the perpetrator. In response, the state contends that,

‘‘[a]ssuming that this is a claim for relief, as opposed

to a suggestion, it is . . . inadequately briefed,’’ and,

alternatively, ‘‘this request should be denied because

. . . DNA was not the only evidence of guilt in this

case.’’

‘‘Although [a]ppellate courts possess an inherent

supervisory authority over the administration of justice
. . . [that] authority . . . is not a form of free-floating

justice, untethered to legal principle. . . . Our supervisory powers are not a last bastion of hope for every

untenable appeal. They are an extraordinary remedy

to be invoked only when circumstances are such that

the issue at hand, [although] not rising to the level

of a constitutional violation, is nonetheless of utmost

seriousness, not only for the integrity of a particular

trial but also for the perceived fairness of the judicial

system as a whole. . . . Constitutional, statutory and

procedural limitations are generally adequate to protect

the rights of the defendant and the integrity of the

judicial system. Our supervisory powers are invoked

only in the rare circumstance [when] these traditional

protections are inadequate to ensure the fair and just

administration of the courts.’’ (Emphasis in original;

internal quotation marks omitted.) State v. Wade, 297

Conn. 262, 296, 998 A.2d 1114 (2010).

We decline the defendant’s invitation to exercise our

supervisory powers in the present case. First, the defendant seeks to require an instruction on random match

probability, but, in this case, Przech relied on the combined probability of inclusion as her statistical method

to determine the rarity of the match. Although the combined probability of inclusion and random match probability produce similar statistical metrics, given that random match probability is employed for single source

DNA profiles and the combined probability of inclusion

is employed for mixed DNA profiles, a jury instruction

on random match probability would not have fully

explained the statistical method Przech employed in

this case. Second, there is no indication that the jury

misunderstood Przech’s description of the statistical

method that she used to determine the rarity of the

DNA match. Third, as we discuss in part III of this

opinion, contrary to the defendant’s suggestion, the

DNA evidence in this case is not the only evidence

identifying the defendant as the perpetrator. Finally, the

defendant also fails to explain why this extraordinary

remedy is required and how this issue impacts, not

only the integrity of this particular trial, but also the

perceived fairness of the judicial system as a whole.

See, e.g., State v. Elson, 311 Conn. 726, 768, 91 A.3d 862

(2014) (‘‘a defendant seeking review of an unpreserved

claim under our supervisory authority must demonstrate that his claim is one that, as a matter of policy,

is relevant to the perceived fairness of the judicial system as a whole, most typically in that it lends itself to

the adoption of a procedural rule that will guide the

lower courts in the administration of justice in all

aspects of the criminal process’’ (internal quotation

marks omitted)). Accordingly, we decline to invoke our

supervisory authority at this time to require trial courts

to instruct the jury on the meaning of random match

probability.14

III
Finally, we consider the defendant’s contention that

a random match probability of 1 in 230,000, by itself,

is insufficient to prove that he is guilty beyond a reasonable doubt. Specifically, the defendant contends that a

random match probability of 1 in 230,000 in the Hispanic

population means that there are about ninety Hispanic

males over the age of fifteen in the United States who

could have contributed a DNA profile to the vaginal

sample.15 The state contends that this ‘‘claim is meritless

because the evidence establishing the defendant’s identity was not based on the DNA evidence alone.’’ Rather,

the state contends, ‘‘the recordings of the defendant’s

two interviews with the police provided sufficient additional evidence to establish his guilt beyond a reasonable doubt.’’ We agree with the state.

The defendant concedes that, although he moved for

a judgment of acquittal, he did not raise this argument

before the trial court. This court, however, ‘‘review[s]

an unpreserved sufficiency of the evidence claim as

though it had been preserved.’’ (Internal quotation

marks omitted.) State v. Josephs, 328 Conn. 21, 35 n.11,

176 A.3d 542 (2018).

In evaluating a claim of evidentiary insufficiency, we

‘‘review the evidence and construe it as favorably as

possible with a view toward sustaining the conviction,

and then . . . determine whether, in light of the evidence, the trier of fact could reasonably have reached

the conclusion it did reach.’’ (Emphasis in original;

internal quotation marks omitted.) State v. Jordan, 314

Conn. 354, 385, 102 A.3d 1 (2014). A trier of fact is

permitted to make reasonable conclusions by ‘‘draw-

[ing] whatever inferences from the evidence or facts

established by the evidence it deems to be reasonable

and logical. . . . [These inferences, however] cannot

be based on possibilities, surmise or conjecture.’’ (Internal quotation marks omitted.) Id.

In the present case, the evidence establishing the

identity of the defendant was not based on the DNA

evidence alone. In particular, the video recordings of

the defendant’s two interviews with the police, which

were played for the jury, provided additional evidence

from which the jury could have concluded that the

defendant was one of the perpetrators. The August,

2016 interview established that the defendant was a

resident of New Britain at the time of the assault. The

video of both the August and December, 2016 interviews

also established that, consistent with the victim’s

description of the perpetrators, the defendant is Hispanic, heavyset, and speaks English.16

Jurors also reasonably could have concluded that

several of the defendant’s statements to the police during the interviews were inconsistent or partial truths

influenced by his participation in the crime and evidence of his consciousness of guilt. For example, after
denying ever having had a threesome during the first

interview, during the second interview, the defendant

admitted that he had engaged in threesomes on two

occasions. When the detective asked him during the

second interview what happened the day the victim

reported being assaulted, the defendant abandoned his

lack of recollection and offered an account of picking

up a man and a woman in his car near an AutoZone in

New Britain and engaging in a threesome. The defendant later explained that he could not remember when

that occurred or whether it was the same incident the

detective was referencing. The defendant’s mention of

an AutoZone was significant, however, because the jury

was presented with evidence that an AutoZone was

located in the vicinity of where the victim reported

being abducted. Finally, when the detective informed

him that, in addition to the assault, the victim stated

that she had been robbed of several hundred dollars,

the defendant replied with words to the effect of:

‘‘That’s not me. It’s the other guy.’’ The defendant concedes that his inconsistent statements to the police

‘‘might be construed as consciousness of guilt evidence . . . .’’

We have ‘‘repeatedly held that a jury may infer guilt

based on consciousness of guilt evidence in conjunction

with other evidence . . . .’’ State v. Davis, 324 Conn.

782, 797 n.8, 155 A.3d 221 (2017); see also State v.

Morelli, 293 Conn. 147, 154, 976 A.2d 678 (2009) (evidence of consciousness of guilt, along with other evidence, provided sufficient evidence to prove that defendant was under influence of intoxicating liquor, which is

essential element of offense of operating motor vehicle

while under influence of intoxicating liquor); State v.

Groomes, 232 Conn. 455, 473–74, 656 A.2d 646 (1995)

(holding that trial court properly instructed jury that it

may use defendant’s flight as evidence of consciousness

of guilt and as independent, circumstantial evidence of

defendant’s guilt). Here, that other evidence was the

DNA evidence.

Construing the evidence as favorably as possible to

sustaining the guilty verdict, we conclude that the

state’s case did not rest on the DNA evidence alone

and that the circumstantial evidence, combined with

the DNA evidence, was sufficient for the jury to find

beyond a reasonable doubt that the defendant was one

of the perpetrators of the sexual assault. See, e.g., State

v. Young, 157 Conn. App. 544, 558–59, 117 A.3d 944

(rejecting defendant’s contention that evidence was

insufficient to support conviction based only on DNA

evidence because state’s case did not rest on DNA evidence alone), cert. denied, 317 Conn. 922, 118 A.3d

549 (2015).

The judgment is affirmed.

In this opinion the other justices concurred.

* The listing of justices reflects their seniority status on this court as of
the date of oral argument.

** September 24, 2020, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1

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.

2 CODIS contains DNA profiles from unsolved crimes and compares them

to known samples from convicted felons that are periodically added to the

database. See, e.g., State v. Webb, 128 Conn. App. 846, 852–53 n.3, 19 A.3d

678, cert. denied, 303 Conn. 907, 32 A.3d 961 (2011).

3 Because it is preferable to analyze a profile of the semen sample alone,

Przech explained that, before the DNA is separated from the samples, the

epithelial—or skin—cells are separated from the sperm cells.

4 The unofficial report also concludes that the expected frequency of

individuals who could be a contributor to the DNA profile from the spermrich fraction of the vaginal swabs is ‘‘approximately 1 in 4.9 in the [AfricanAmerican] population’’ and ‘‘approximately 1 in 3.3 in the Caucasian population . . . .’’

5 The December, 2016 report also concludes that the expected frequency

of individuals who could be a contributor to the DNA profile from the spermrich fraction of the vaginal swabs is ‘‘approximately 1 in 2.1 million in

the [African-American] population’’ and ‘‘approximately 1 in 120,000 in the

Caucasian population . . . .’’

6 Golding provides that a defendant may prevail on an unpreserved claim

when ‘‘(1) the record is adequate to review the alleged claim of error; (2)

the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . .

deprived the defendant of a fair trial; and (4) if subject to harmless error

analysis, the state has failed to demonstrate harmlessness of the alleged

constitutional violation beyond a reasonable doubt.’’ (Footnote omitted.)

State v. Golding, supra, 213 Conn. 239–40; see In re Yasiel R., supra, 317

Conn. 781 (modifying third prong of Golding by eliminating word ‘‘clearly’’

before ‘‘exists’’ and ‘‘deprived’’).

7 We note that the issues raised in the concurring opinion are beyond the

scope of this appeal. Accordingly, we express no opinion on the merits of

that opinion.

8

In his original brief, the defendant concedes that he does not ‘‘dispute

that the analyst who generated the profile from a single source, known

sample, such as a buccal swab from the defendant, may not need to testify.’’

Nevertheless, in his reply brief and at oral argument, the defendant attempts

to raise this issue, claiming that the analyst who tested the known buccal

sample from the defendant must testify at trial. We note that Przech’s limited

testimony on this point indicated that the buccal swab was processed in

‘‘an automated procedure,’’ and, rather than having an analyst physically

process the sample, ‘‘a robot actually does it.’’ Moreover, as we have repeatedly explained, ‘‘[i]t is axiomatic that a party may not raise an issue for the

first time on appeal in [his] reply brief. . . . Our practice requires an appellant to raise claims of error in his original brief, so that the issue as framed

by him can be fully responded to by the appellee in its brief, and so that

we can have the full benefit of that written argument. Although the function

of the appellant’s reply brief is to respond to the arguments and authority

presented in the appellee’s brief, that function does not include raising an

entirely new claim of error.’’ (Citations omitted; internal quotation marks

omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 197, 982

A.2d 620 (2009). We therefore decline to review the defendant’s belated

claim relating to the testing of the known buccal swab.

9 During cross-examination, Przech testified that she did not process the

sample or perform the lab work in 2007. This is of no moment because the

defendant’s claim is not based on the 2007 testing.

10 ‘‘[Defense Counsel]: Okay. Now, we discussed your testing in 200[7];

however, you conducted additional testing and analysis . . . in 2016. Correct?

‘‘[Przech]: Yes.

‘‘[Defense Counsel]: In 2016, you conducted DNA testing of the vaginal,

oral [and] genital swabs and compared the DNA profiles on those items to

the known profile of [the defendant], correct?

‘‘[Przech]: Yes.

* * *

‘‘[Defense Counsel]: Okay. You were given the known sample in August,

[2016], or sometime after August 17, and you issued a report in December,
[2016]. You did testing on that sample during that time period. Right?

‘‘[Przech]: Yes.

‘‘[Defense Counsel]: And you documented your results, correct?

‘‘[Przech]: Yes.’’

11 Contrary to the defendant’s assertion, Manson v. Brathwaite, supra,

432 U.S. 98, provides little guidance for assessing DNA evidence. In that

case, the United States Supreme Court concluded that ‘‘reliability is the

linchpin in determining the admissibility’’ of evidence of an eyewitness

identification that results from an unnecessarily suggestive procedure. Id.,

114. The court also concluded that the factors to be considered in the

analysis of whether the identification evidence is admissible are those set

forth in Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct. 375, 34 L. Ed. 2d

401 (1972). See Manson v. Brathwaite, supra, 114. These factors include

‘‘the opportunity of the witness to view the criminal at the time of the crime,

the witness’ degree of attention, the accuracy of his prior description of the

criminal, the level of certainty demonstrated at the confrontation, and the

time between the crime and the confrontation. Against these factors is to

be weighed the corrupting effect of the suggestive identification itself.’’ Id.

12 The defendant also appears to contend that we may reverse the judgment

on the ground of plain error. The defendant’s claim is not briefed beyond

a conclusory assertion in a single footnote. He contends, without any analysis, that ‘‘[c]onvicting the defendant solely on misunderstood DNA evidence

affects the fairness and integrity of and public confidence in his trial and

conviction.’’ In addition to inadequately briefing his claim; see, e.g., Estate

of Rock v. University of Connecticut, 323 Conn. 26, 33, 144 A.3d 420 (2016)

(‘‘Claims are inadequately briefed when they are merely mentioned and not

briefed beyond a bare assertion. . . . Claims are also inadequately briefed

when they . . . consist of conclusory assertions . . . with no mention of

relevant authority and minimal or no citations from the record . . . .’’ (Internal quotation marks omitted.)); the defendant also failed to demonstrate

that the jury did not understand the state’s DNA evidence.

13 Conflating the random match probability with source probability is

known as the prosecutor’s fallacy. See, e.g., McDaniel v. Brown, 558 U.S.

120, 128, 130 S. Ct. 665, 175 L. Ed. 2d 582 (2010) (‘‘The prosecutor’s fallacy

is the assumption that the random match probability is the same as the

probability that the defendant was not the source of the DNA sample. . . .

In other words, if a juror is told [that] the probability a member of the

general population would share the same DNA is 1 in 10,000 (random match

probability), and he takes that to mean there is only a 1 in 10,000 chance

that someone other than the defendant is the source of the DNA found

at the crime scene (source probability), then he has succumbed to the

prosecutor’s fallacy.’’ (Citation omitted.)).

14 Having reached this conclusion, however, we take this opportunity to

emphasize that, in appropriate circumstances, and when the defendant

requests it, a trial court may instruct the jury on the meaning of the statistical

rarity of a match. Our research has not revealed, and the defendant does

not contend, that any jurisdiction—state or federal—has adopted a model

instruction on the meaning of random match probability. The need for such

an instruction, what information such an instruction might contain, and

whether it is proper to give such an instruction, however, have been discussed in academic literature and several cases. See, e.g., State v. Bloom,

516 N.W.2d 159, 170–71 (Minn. 1994) (Page, J., concurring specially); P.

Chaudhuri, ‘‘A Right to Rational Juries? How Jury Instructions Create the

‘Bionic Juror’ in Criminal Proceedings Involving DNA Match Evidence,’’ 105

Cal. L. Rev. 1807, 1850–51 (2017).

Several courts have concluded that the failure to give such an instruction

was appropriate because the instruction improperly addressed matters of

scientific fact, not legal principles. See, e.g., State v. Paxton, Docket No. 2

CA-CR 2007-0062, 2008 WL 4551502, *4 (Ariz. App. January 14, 2008); Stanley

v. State, 289 Ga. App. 373, 375–76, 657 S.E.2d 305 (2008); Keen v. Commonwealth, 24 Va. App. 795, 807–808, 485 S.E.2d 659 (1997).

This court, however, has taken a different view of jury instructions involving scientific facts—specifically, in the context of research disproving common misperceptions about the reliability of eyewitness identification. We

determined that, in a given case in which the concerns raised by the scientific

evidence were applicable, it would be proper for a trial court to give a

cautionary jury instruction on eyewitness identification. See State v. Harris,

330 Conn. 91, 134–35, 191 A.3d 119 (2018) (‘‘it may be appropriate for the

trial court to craft jury instructions to assist the jury in its consideration of

[the reliability of eyewitness testimony]’’), citing State v. Guilbert, 306 Conn.
218, 257–58, 49 A.3d 705 (2012); see also State v. Guilbert, supra, 258 (trial

court retains discretion to give ‘‘jury instructions on the fallibility of eyewitness identification evidence,’’ provided that ‘‘any such instructions should

reflect the findings and conclusions of the relevant scientific literature pertaining to the particular variable or variables at issue in the case’’).

Given that there is no consensus on the proper instruction explaining

random match probability, or whether such instruction is appropriate, and

that we need not decide this issue to resolve the present case, we leave for

another day the question of under what circumstances a jury instruction

should be provided and the precise phrasing of that instruction.

15 The defendant reasons that the 2016 census identified 41.5 million Hispanic people in the United States over the age of fifteen. The defendant

assumes that one half of those individuals, 20.75 million, are male. He arrives

at the pool of ninety by dividing 20.75 million by 230,000.

16 Evidence that the defendant lived in New Britain and resembled the

victim’s description of one of the perpetrators renders the defendant’s argument regarding the number of Hispanic males in the United States unpersuasive because the argument erroneously assumes that the group of people

in the population that could have contributed to the profile in the evidentiary

sample, in this case ninety, are all equally suspect. This is known as the

defense fallacy, and it ‘‘understat[es] the tendency of a reported match to

strengthen source probability and narrow the group of potential suspects.

. . . [T]he real source probability will reflect the relative strength of circumstantial evidence connecting the defendant and other persons with matching

DNA to the scene of the crime.’’ (Emphasis omitted; footnote omitted.)

United States v. Chischilly, 30 F.3d 1144, 1157 (9th Cir. 1994) (overruled

in part on other grounds by United States v. Preston, 751 F.3d 1008 (9th

Cir. 2014)), cert. denied, 513 U.S. 1132, 115 S. Ct. 946, 130 L. Ed. 2d 890 (1995).