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

JOSEPH PRUDHOMME

(AC 43302)

Moll, Clark and Sheldon, Js.

Syllabus

Convicted of the crimes of assault in the first degree, cruelty to persons

and tampering with physical evidence, the defendant appealed to this

court. He claimed that the trial court’s jury instructions deprived him

of his right to due process and a fair trial because they could have

misled the jurors into thinking they could not consider inadequacies in

the police investigation in evaluating whether the state had proved him

guilty beyond a reasonable doubt. The complainant, L, and the defendant

shared an apartment. After they returned to the apartment with M, the

defendant’s girlfriend, in the early morning hours after visiting a club,

L told the defendant that he had twice slept with M. In the early evening

of that same day, the defendant found L passed out in his room, covered

in vomit and urine, with a red ring around his neck. The defendant told

the 911 dispatcher that L had attempted suicide. The police found L on

the floor of his bedroom. Although the police searched the apartment

for anything that could have caused the red marks on L’s neck, they

did not enter or search the defendant’s separate bedroom. One of the

police officers who searched the apartment, relying in part on the defendant’s statements, believed that L had attempted suicide and sought to

have him seen by a psychologist after L was taken to a hospital. After

L’s mother reported to the police that, when L had awoken from a coma

he was in at the hospital, he told her that the defendant had attempted

to strangle him, the police interviewed the defendant, who changed his

story and told them for the first time both that he had a form of autism

and that L had told him about having had sex with M. The defendant’s

theory of defense was that the police conducted an inadequate investigation in that, inter alia, they failed to sufficiently document the injuries

to L’s neck, they failed to interview L or his mother about the allegation

that the defendant strangled him, they failed to analyze certain evidentiary inconsistencies, and they never considered that the defendant’s

autism could explain his behavior or inconsistent statements to paramedics and the police when they responded to his 911 call. The defendant

filed a request to charge the jury in which he sought, in part, to have

the jury instructed to consider the completeness or incompleteness of

the police investigation and whether evidence concerning the adequacy

of the investigation affected the reliability of the evidence and the credibility of witnesses. After conducting a charging conference with counsel,

the court declined to instruct the jury in accordance with that portion

of the defendant’s request and instead instructed the jury in accordance

with the model investigative inadequacy instruction on the Judicial

Branch website at that time. Held:

1. The trial court’s jury instruction on the adequacy of the police investigation

was erroneous, as there was a reasonable possibility that it misled the

jury and, thus, prejudiced the defendant:

a. The trial court failed to inform the jury of the defendant’s right to

have it consider the inadequacy of the police investigation in evaluating

whether the state had proved him guilty beyond a reasonable doubt:

because the court noted during the charge conference that there was a

factual dispute as to the adequacy of the investigation, the defendant was

entitled to have the jury consider evidence of any relevant deficiencies

or lapses in the investigation as bases for entertaining reasonable doubt

as to his guilt; moreover, had language been added to the court’s charge

of the sort the defendant requested, the jury would have been apprised

of his right to present an investigative inadequacy defense and the jury’s

right to consider it in evaluating the strength of the state’s case.

b. Because the trial court’s instructional error prejudiced the defendant

and was not harmless beyond a reasonable doubt, he was entitled to a new

trial, there having been a reasonable possibility that the error affected

the verdict: the jury may have ignored key evidence as to the adequacy
of the police investigation, as there was a significant risk that it was

misled to believe that it could not consider the defendant’s arguments

as to the investigation, and it was apparent that the instructional error

was harmful given the relative weakness of the state’s case, which turned

almost entirely on the believability of L’s allegation that the defendant

strangled him, even though L did not see the defendant attempt to do

so; moreover, defense counsel adduced evidence that tended to undermine L’s credibility, elicited testimony that there were alternative explanations for L’s neck injuries and argued that any inconsistencies in the

defendant’s statements or mannerisms could be explained by his autism;

furthermore, the state did not prove beyond a reasonable doubt that a

properly instructed jury would not have entertained a reasonable doubt

as to the defendant’s guilt and, thus, find him not guilty on the basis of

the alleged deficiencies in the police investigation.

2. The trial court improperly admitted into evidence a police disciplinary

report in violation of the defendant’s state and federal constitutional

rights to confront witnesses against him: contrary to the court’s determination that the state offered the report to show that the police department had taken action with regard to the performance of an officer

during the investigation, the report was introduced to prove the truth

of its contents, which were that the officer’s investigation and conclusion

that L had attempted suicide were inadequate and unsatisfactory; moreover, the report was inadmissible under the business records exception

(§ 52-180) to the rule against hearsay, as the state failed to establish

that it was made in the regular course of business, and, because the

report was made three months after the actions it described, it did not

have the indicia of trustworthiness required to fall within the business

records exception; furthermore, the report was testimonial in nature,

the statements in it having been made under circumstances that would

lead an objective witness reasonably to believe that the report would

be available for use at a later trial, and the state did not introduce

evidence that the officer who prepared the report was unavailable to

testify at trial or that the defendant had a prior opportunity to crossexamine him.

Argued October 13, 2021—officially released January 25, 2022

Procedural History

Substitute information charging the defendant with

two counts of the crime of assault in the first degree,

and with one count each of the crimes of assault in the

second degree, strangulation in the first degree, cruelty

to persons and tampering with physical evidence,

brought to the Superior Court in the judicial district of

New London and tried to the jury before Jongbloed, J.;

thereafter, the court denied the defendant’s motions to

preclude certain evidence and to strike certain testimony; verdict of guilty of one count of assault in the

first degree, and of cruelty to persons and tampering

with physical evidence; subsequently, the court dismissed the charge of assault in the second degree,

denied the defendant’s motion for a new trial and rendered judgment in accordance with the verdict, from

which the defendant appealed to this court. Reversed;

new trial.

Andrew P. O’Shea, assigned counsel, for the appellant

(defendant).

Laurie N. Feldman, deputy assistant state’s attorney,

with whom, on the brief, were Michael L. Regan, state’s

attorney, and Stephen M. Carney, senior assistant

state’s attorney, for the appellee (state).
Opinion

SHELDON, J. The defendant, Kristopher Joseph

Prudhomme, appeals from the judgment of conviction,

rendered after a jury trial, of charges of assault in the

first degree in violation of General Statutes § 53a-59 (a)

(3), cruelty to persons in violation of General Statutes

§ 53-20 (a) (1), and tampering with evidence in violation

of General Statutes § 53a-155. On appeal, the defendant

claims that the trial court improperly (1) failed to

instruct the jury that it properly could consider evidence

of inadequacies in the police investigation that led to

his arrest and prosecution as a basis for discrediting

the state’s evidence against him and entertaining reasonable doubt as to his guilt, (2) admitted into evidence,

over his objection, a police disciplinary report containing hearsay statements from nontestifying police

officers that tended to undermine his theory of defense,

and (3) denied his motion for a new trial pursuant to

his claim that the jury’s verdict was against the manifest

weight of the evidence.1 We agree with the defendant’s

first claim of error, and accordingly, on that basis,

reverse the judgment of conviction of all charges and

remand this case for a new trial thereon. We also agree

with the defendant’s second claim of error, which we

have reviewed because it is likely to arise again at retrial.

We do not reach the defendant’s third claim of error

because it is unnecessary for the ultimate disposition

of this appeal.

The jury was presented with the following evidence

on which to base its verdict. In the autumn of 2016, the

complainant, Michael Lovering, moved from Louisiana

to Connecticut. On October 1 of that year, on the invitation of the defendant, Lovering became the defendant’s

roommate in an apartment in Norwich. Having first met

the defendant, a fellow participant in the Goth culture,

when they worked together as disc jockeys, Lovering

had known the defendant for eight years by the time

they became roommates in the Norwich apartment.

On the night of October 21, 2016, the defendant, Lovering, and the defendant’s girlfriend, Lauren Muskus,

went to see a band play at a club in New Haven. Lovering

consumed alcohol while at the club, then got into an

altercation with the mother of an underage girl. Following the altercation, Lovering left the club, intending to

walk home. Shortly thereafter, however, he was picked

up by the defendant and Muskus, who drove him back

to Norwich.

Upon arriving back at the apartment, sometime after

2:30 a.m. on October 22, 2016, Lovering saw his neighbors, Chandler Gottshall and her boyfriend, outside the

apartment and invited them inside. The group initially

talked and drank alcohol for a while in the kitchen of

the apartment. During that time, Gottshall noticed that

Lovering appeared to be intoxicated, as he was slurring
his speech, stumbling when he walked, and, at one

point, fell over and struck the stove. Later, according

to Gottshall, the mood of the gathering changed after

Lovering and the defendant went into the defendant’s

room and had a short conversation in which Lovering

told the defendant that he had slept with Muskus on

two separate occasions. Gottshall testified that, when

Lovering returned to the kitchen after having that conversation, he pulled her and her boyfriend outside. Lovering told them what he had told the defendant about

sleeping with Muskus, then told them that they should

leave, which they promptly did. Gottshall testified that,

after Lovering spoke with the defendant, Lovering ‘‘was

very upset about it, just talking about it . . . .’’

Later in the day on October 22, at approximately 5:30

p.m., the defendant called 911 and requested that an

ambulance be sent to his residence. The defendant told

the police dispatcher during the call that he had just

found Lovering in his room, passed out and covered in

vomit and urine. During the call, the defendant further

stated that Lovering was barely conscious, completely

incoherent, and continuing to vomit. The defendant also

informed the dispatcher that Lovering had ‘‘a red ring

around his neck.’’ He concluded the call by telling the

dispatcher, ‘‘[I]t’s a suicide attempt.’’

Officer Jared Homand of the Norwich Police Department was dispatched to the defendant’s residence in

response to the 911 call. When Homand arrived, he was

met by the defendant at the front door. The defendant

told the officer that he had found Lovering in his room,

incapacitated, after hearing him groaning and going in

to check on him. Homand then entered the residence,

accompanied by the defendant, and found Lovering

lying on the floor of his bedroom with his legs tucked

up under his body as if he had knelt down on the floor

and lain over backward.

Homand initially attempted to speak with Lovering,

but Lovering only groaned in response and gestured

toward his legs. The officer assisted Lovering by straightening out his legs from under his body so that Lovering

was lying flat on his back. The officer then noticed ‘‘a

ligature mark or a red circular mark around the front

of his neck.’’ Homand testified that he ‘‘didn’t see if it

went all the way around because he was on his back,

but it went at least the three-quarters that were visible

around his neck.’’ The officer also observed a dried

substance on Lovering’s lips and chest, which he

believed to be either blood or vomit.

Other emergency personnel arrived at the scene

shortly thereafter, including Officer Anthony Marceau

and a team of paramedics. Paramedic Mackenzie

Kelsey, who first attended to Lovering, found him to be

conscious but unable to communicate with her. Kelsey

observed that Lovering was very pale—an indication

of severe oxygen deprivation. She also observed that
Lovering had dried blood and vomit on his chest and

‘‘bruising and marks around his neck.’’ According to

Kelsey’s testimony, the marks on Lovering’s neck ‘‘were

very red’’ and ‘‘were very thin’’ and appeared to her ‘‘to

be something that had recently happened’’ given their

color. Kelsey explained that there were ‘‘multiple marks

across his neck and they went straight across his neck.’’

However, according to paramedic Ashleigh Ridenour’s

testimony, ‘‘[t]here were multiple marks in different

stages, so some were older and some were fresh.’’ Ridenour explained that the marks ‘‘were different colors.

There were some that were red and there were some

that were more purple in color.’’ On the basis of these

observations, Ridenour believed that some of the marks

were fresh but others were old. The paramedics determined that Lovering’s blood oxygen was extremely low,

his heartbeat was very fast, and his levels of potassium

were high. The paramedics provided oxygen to Lovering, put him on a stretcher, and transported him to

William W. Backus Hospital in Norwich in an ambulance.

During trial, Kelsey testified that the defendant was

acting in an unusual manner when she and the other

paramedics arrived at the apartment. Kelsey explained

that the defendant ‘‘didn’t seem to want to make eye

contact with us. He didn’t seem to want to really speak

with us in detail. When we were taking [Lovering] out

of the room, placing him on the stretcher, I did note

that he seemed to be blocking another door or walkway

into another part of the apartment and wouldn’t let

anybody through into that area. And then, in the midst

of information being communicated to me through

[Ridenour], the story in which what had happened to

[Lovering] changed multiple times. There was two or

three iterations of what had actually happened.’’ On

cross-examination, Kelsey conceded that had she

known the defendant was autistic, she potentially

would have changed her perception of his behavior.2

Meanwhile, Homand and Marceau looked around the

apartment to determine if there was anything there that

could have caused the red marks on Lovering’s neck,

such as a rope, a belt, or a similar item. Although the

officers searched for this purpose throughout the common areas of the apartment and in Lovering’s bedroom,

they found nothing that, in their opinion, could have

caused the marks. The officers, however, never searched,

or even entered, the defendant’s separate bedroom on

that day.

At Backus Hospital, Lovering was placed in the care

of Melissa Lin Monte, an emergency department physician. Lin Monte found Lovering’s lower legs to be very

swollen and his calves to be extremely firm, which she

found to be consistent with a lack of blood flow to his

lower legs. She also found that Lovering’s potassium

levels were dangerously high—higher than she had ever
seen before—which she understood to be an indicator

of muscle breakdown of the sort that can be caused

when a person remains immobile for a prolonged period

of time.

Because of the severity of Lovering’s condition, he

was put in a medically induced coma and then transferred to the intensive care unit. After Lovering was

transferred, however, the condition of his legs worsened.

On the basis of the seriousness of the condition of his

legs, Lovering was ultimately transferred by helicopter

to Hartford Hospital.

At Hartford Hospital, Parth Shah, a vascular surgeon,

examined Lovering’s legs and determined that they

needed to be amputated below the knee because of the

breakdown of his leg muscles. After Lovering’s lower

legs were amputated, he remained in a coma until the

evening of October 27.

Marceau, who had followed the ambulance to Backus

Hospital, filled out an emergency evaluation request

form to ensure that Lovering would be seen by a psychologist within forty-eight hours of his admission to

the hospital. Marceau testified that he had filled out the

form because he believed that the cause of Lovering’s

injuries was an attempted suicide. Marceau based this

belief on the defendant’s statements to the police, on

Lovering’s alleged past attempts at suicide, and on Lovering’s dire physical condition at the time he was found.

Later, however, on November 2, six days after Lovering emerged from the coma, he told his mother that

the defendant had strangled him. Lovering’s mother

immediately called the police to report her son’s allegations. On the basis of Lovering’s allegation that the

defendant had strangled him, the police went to the

defendant’s apartment on November 2 to interview him.

After questioning the defendant in his apartment, Detective Kyle Besse asked the defendant to come with him

to the police station to answer more questions, and the

defendant agreed. At the police station, the defendant

was placed in an interview room and the interview was

recorded. The defendant also gave Besse access to his

cell phone. Besse then asked the defendant to repeat

his story from the beginning. Besse testified that the

defendant’s story changed slightly during this second

round of questioning. Specifically, at the police station,

the defendant mentioned for the first time that Lovering

had told him that he had had sex with Muskus. Besse

thought it suspicious that, even though the defendant

had said that he ‘‘wanted to hit [Lovering]’’ when he

learned of Lovering’s sexual activities with Muskus, he

admittedly ‘‘was trying to think up ahead how this would

look [if he did so]. . . . Like, in retrospect now, like,

even in the hospital—‘cause, like, his mom asked, well,

how did he get a black eye; a nurse would have asked

me, well, how did he get a black eye; a[nd] police would

have asked, how’d he get a black eye. I would have had
to say, well, I hit him.’’ Besse responded by telling the

defendant that he was ‘‘still getting the sense that there’s

something. Every time I ask you that—you know, what

else happened, what else happened—you give me a sign

that you’re not comfortable enough to be completely

honest.’’ The defendant then told the detective that,

‘‘[m]entally, the only thing with me is, I have Asperger’s

syndrome, which is like a form of autism.’’

The defendant was subsequently arrested and charged

with assault in the first degree in violation of § 53a-59

(a) (1), assault in the first degree in violation of § 53a59 (a) (3), strangulation in the first degree in violation of General Statutes § 53a-64aa (a) (1) (B), cruelty

to persons in violation of § 53-20, and tampering with

physical evidence in violation of § 53a-155 (a) (1).

After a jury trial, the defendant was found guilty of

assault in the first degree in violation of § 53a-59 (a) (3),

cruelty to persons in violation of § 53-20, and tampering

with physical evidence in violation of § 53a-155 (a) (1).

The jury found the defendant not guilty of assault in the

first degree under § 53a-59 (a) (1) and strangulation in

the first degree under § 53a-64aa (a) (1) (B).3 Before he

was sentenced, the defendant filed a timely motion for

a new trial on the ground that the jury’s guilty verdict

was against the weight of the evidence. The court denied

that motion prior to the defendant’s sentencing. Thereafter, the court sentenced the defendant to a total effective term of twenty years of incarceration, execution

suspended after ten years, and five years of probation.

This appeal followed. Additional facts and procedural

history will be set forth as necessary.

I

The defendant first claims that the trial court violated

his constitutional right to due process and a fair trial by

failing to instruct the jury on the manner in which it

could use evidence of the allegedly incomplete and

biased police investigation in determining whether he

was guilty of the charged offenses. The defendant argues

that the jury charge as given prejudiced him because it

could have ‘‘misled [the jury] into thinking it could not

conclude that the investigation’s inadequacies, which

were the heart of the defense, could be a reasonable

basis to find a lower probative value in the evidence the

investigation produced, resulting in reasonable doubt.’’

We agree.

The following well established legal principles guide

our analysis of the defendant’s first claim of error. ‘‘[A]

fundamental element of due process of law is the right

of a defendant charged with a crime to establish a

defense. . . . Where . . . the challenged jury instructions involve a constitutional right, the applicable standard of review is whether there is a reasonable possibility

that the jury was misled in reaching its verdict. . . . In

evaluating the particular charges at issue, we must

adhere to the well settled rule that a charge to the jury
is to be considered in its entirety, read as a whole, and

judged by its total effect rather than by its individual

component parts. . . . [T]he test of a court’s charge is

. . . whether it fairly presents the case to the jury in

such a way that injustice is not done to either party

under the established rules of law.’’ (Internal quotation

marks omitted.) State v. Collins, 299 Conn. 567, 598–99,

10 A.3d 1005, cert. denied, 565 U.S. 908, 132 S. Ct. 314,

181 L. Ed. 2d 193 (2011). ‘‘If a requested charge is in

substance given, the court’s failure to give a charge in

exact conformance with the words of the request will

not constitute a ground for reversal. . . . As long as

[the instructions] are correct in law, adapted to the issues

and sufficient for the guidance of the jury . . . we will

not view the instructions as improper. . . . Additionally, we have noted that [a]n error in instructions in a

criminal case is reversible error when it is shown that

it is reasonably possible for errors of constitutional

dimension or reasonably probable for nonconstitutional

errors that the jury [was] misled.’’ (Citations omitted;

internal quotation marks omitted.) State v. Aviles, 277

Conn. 281, 309–10, 891 A.2d 935, cert. denied, 549 U.S.

840, 127 S. Ct. 108, 166 L. Ed. 2d 69 (2006). ‘‘A challenge

to the validity of jury instructions presents a question

of law over which [we have] plenary review.’’ (Internal

quotation marks omitted.) State v. Gomes, 337 Conn.

826, 849–50, 256 A.3d 131 (2021).

A

We first consider whether the trial court committed

instructional error when it failed to inform the jury of

the defendant’s right to rely on the alleged inadequacy

of the police investigation as a possible basis for finding

that the state had failed to prove him guilty beyond a

reasonable doubt.

‘‘[T]his court has recognized that defendants may use

evidence regarding the inadequacy of the investigation

into the crime with which they are charged as a legitimate

defense strategy. . . . Conducting a thorough, professional investigation is not an element of the government’s

case. . . . A defendant may, however, rely upon relevant deficiencies or lapses in the police investigation to

raise the specter of reasonable doubt, and the trial court

violates his right to a fair trial by precluding the jury from

considering evidence to that effect.’’ (Citation omitted;

internal quotation marks omitted.) State v. Wright, 322

Conn. 270, 282, 140 A.3d 939 (2016). ‘‘[T]he inference that

may be drawn from an inadequate police investigation is

that the evidence at trial may be inadequate or unreliable

because the police failed to conduct the scientific tests

or to pursue leads that a reasonable police investigation

would have conducted or investigated, and these tests

or investigation reasonably may have led to significant

evidence of the defendant’s guilt or innocence. A jury

may find a reasonable doubt if [it] conclude[s] that the

investigation was careless, incomplete, or so focused
on the defendant that it ignored leads that may have

suggested other culprits.’’ (Internal quotation marks

omitted.) Id., 283.

The following additional facts are relevant to our resolution of this claim. The main theory advanced by the

defendant at trial was that the police had conducted an

inadequate investigation of the incident. Specifically, the

defense argued that the police had (1) failed to consider

and investigate the possibility that Lovering’s injuries had

been self-inflicted and (2) acted with bias and prejudice

against the defendant because he was autistic.

During closing argument, defense counsel argued that

‘‘[t]he government’s case is fundamentally flawed. The

government wants you to find [the defendant] guilty

based solely upon the unreliable, uninvestigated, and

uncorroborated allegations of [Lovering]. They want you

to ignore the fact that it failed to conduct a complete

and unbiased investigation. . . . Proof beyond a reasonable doubt is proof that precludes every reasonable

hypothesis except guilt and is inconsistent with any other

rational conclusion. The government hasn’t even

attempted to do that. . . . Detective Besse testified in

front of you it never occurred to him that these allegations might not be true. It never occurred to him that

[Lovering], what he was saying might be false; that he

might be mistaken. . . . You can’t rely upon the evidence presented in court based upon this incomplete

and biased investigation. . . . These are alternative,

innocent explanations that needed to be considered,

investigated in an attempt to rule [them] out. They

needed to gather evidence specifically on these issues.

‘‘There’s an obvious alternative innocent explanation

in this case. [Lovering] lost consciousness due to acute

alcohol intoxication. . . . Possibly [Lovering] engaged

in some sort of suicide gesture at the time when he was

highly intoxicated around 3:30 in the morning on October

22, 2016. . . . It’s also reported that he has a history of

loss of consciousness, especially when he’s drinking or—

specifically, when he’s drinking. . . . [Lovering] had a

practice of kneeling, putting his buttocks onto his feet,

and even he was so flexible, he could go all the way

back. . . . Acute alcohol intoxication alone is sufficient

to explain the serious medical injuries. . . . Detective

Besse never considered that. . . . There are many alternative, innocent explanations for the red marks on [Lovering’s] neck. Possible suicide gesture, scratches by [Lovering] or someone else. There’s talk about him engaging

in self-harm. . . . They could be explained by falls while

he’s intoxicated, falling on the stove, and there was evidence of other falls. . . . It could have been nonfatal

autoerotic activities . . . . It could have been caused

by the self-flagellation with the flogger or cat-o’-ninetails whip. . . . Isn’t that extraordinary that someone

can be arrested and put on trial and that there never is

an investigation or serious investigation or even a
moment of consideration that the allegations might not

be true? It’s shocking. That alone is cause for reasonable doubt.’’

In support of the defense theory of an inadequate

police investigation, the defense elicited testimony from

numerous witnesses at trial directing the jury’s attention

to inadequacies and omissions in the investigation. First

and foremost, on cross-examination, Besse, the lead

detective, testified that he never considered the possibility that Lovering’s allegation that the defendant had

strangled him was not true. Besse testified that he briefly

considered the possibility that Lovering’s injuries were

caused by autoerotic asphyxiation4 but quickly ruled it

out as a possibility due to the absence of any type of

ligature near Lovering when he was found and the fact

that his pants were on at that time. Besse simply testified

that he had no reason to disbelieve Lovering’s allegation

that the defendant had strangled him.

Additionally, Lovering’s Facebook records were not

obtained and reviewed by the police to determine if they

were consistent with Lovering’s version of events prior

to the arrest of the defendant. In fact, according to the

testimony of Facebook employee Christine Oliveira, Lovering’s Facebook records were not requested by the state

until May 23, 2018, more than eighteen months after

Lovering suffered his injuries, and no preservation

request for those records was ever made, making it possible for messages to have been deleted from the records

before they were finally produced. Once the records

were obtained in 2018, they revealed a previously undiscovered message suggesting that Lovering was planning

to die by suicide, which was sent to Muskus from Lovering’s account at 3:30 a.m. on October 22. The message

cryptically, but ominously, told Muskus

to ‘‘[h]ave fun with my death.’’

Besse also testified that he never made a time line

of events on October 22, 2016, although, admittedly,

that would have been helpful to the investigation, for

it would have revealed inconsistencies in Lovering’s

version of events. Besse also conceded on cross-examination that he had failed to reconcile the claim made

by Lovering’s mother—that Lovering had awakened

from the coma on November 2, 2016, and immediately

told her that the defendant had strangled him—with

Lovering’s phone records showing that he had first

awakened from the coma and begun to make calls from

his cell phone more than one week earlier, on the evening of October 27. Besse testified that, if he had realized this inconsistency, he would have interviewed both

Lovering and his mother about their claims. He also

stated that, if this inconsistency had been discovered

earlier, as it should have been, before the defendant

was arrested, it would have been brought to the court’s

attention in the application by the police for a warrant

for the defendant’s arrest.
Furthermore, Besse testified that he did not interview

either Lovering or Lovering’s mother on November 2,

the day the mother reported her son’s belated allegation

that the defendant had strangled him. Instead, Besse

interviewed only the defendant on that day. In fact,

Besse conceded in his testimony that he never interviewed Lovering or his mother about the allegation that

the defendant had strangled him.

Last, defense counsel elicited testimony from Besse

that he never considered the possibility that the defendant’s autism could explain his peculiar behaviors or his

inconsistent statements to paramedics and the police

when they responded to his 911 call about Lovering’s

injuries.

Defense counsel also adduced testimony about the

small number and poor quality of the photographs that

were taken by the police to document Lovering’s injuries. Specifically, James R. Gill, the state’s chief medical

examiner and a forensic pathologist, testified that,

although multiple, close-range photographs are typically taken of neck compression injuries in order to

document them and assist in determining their cause,

the police in this case took just one blurry photograph of

Lovering’s injured neck. Ljubisa J. Dragovic, a forensic

pathologist, also testified that the one blurry photograph taken in this case of the marks on Lovering’s

neck was insufficient to support any conclusion as to

what had caused those marks. According to Dragovic,

at least four photographs are required to determine the

cause of a neck injury: ‘‘The strangulation of any type

of neck manipulation calls for [a] photograph from the

front of the neck, [a] photograph of the left side, [a]

photograph of the right side, and [a] photograph of the

back of the neck . . . .’’ Dragovic further testified that,

in this case, with one photograph alone, ‘‘you cannot

say anything but that—other than there is an obliquely

oriented pattern of three lines in the front of the neck.

That’s all you can conclude on the basis of this photograph.’’

In connection with his defense of an inadequate

police investigation, the defendant filed a written

request to charge the jury, which provided in relevant

part: ‘‘You have heard evidence and argument that the

police investigation was inadequate and that the police

involved in this case were incompetent. The ultimate

issue for you to decide is not the thoroughness of the

investigation or the competence of the police. Rather,

the ultimate issue you have to determine is whether

the state, in the light of all the evidence before you, has

proved beyond a reasonable doubt that the defendant

is guilty of the counts with which he is charged.

‘‘You should not acquit the defendant merely because

you conclude that the police have conducted an inadequate investigation. However, you may consider the
completeness or incompleteness of the police investigation when deciding whether the state has presented

evidence sufficient to preclude every reasonable

hypothesis inconsistent with the defendant’s guilt. You

may also consider whether the evidence concerning

the adequacy of the police investigation affects the

credibility of any witnesses who testified or the reliability of any evidence before you.’’ (Emphasis added.)

On December 4, 2018, the court held a charge conference. The first paragraph of the defendant’s requested

jury charge was substantially similar to the former

model criminal jury instruction on investigative inadequacy then published on the Judicial Branch website.5

In discussing this paragraph of the defendant’s requested

jury charge, the court noted that ‘‘it’s factually disputed

that the police investigation was inadequate and the

police involved were incompetent . . . this is a charge

that should probably be there.’’ The court then stated,

however, that, although it was willing to instruct the

jury in accordance with the first paragraph of the defendant’s request to charge, it was not inclined to instruct

it in accordance with the second paragraph of the

request to charge, as previously quoted in italics. In

response, defense counsel argued that ‘‘informing the

jury that this isn’t the ultimate issue is potentially misleading without informing them how to use the evidence

of the police investigation . . . .’’ The state, however,

argued that ‘‘the first paragraph . . . fairly puts the

issue before the jury . . . .’’ After considering the arguments from both parties, the court ruled that it would

not instruct the jury in accordance with the second,

italicized paragraph of the defendant’s request to

charge, explaining: ‘‘Well, I think it’s certainly fair commentary for closing argument with regard to whether

the adequacy of the investigation affect[s] the credibility

of any witnesses, and so I do think that’s something

that can be addressed that way. It’s not part of the

pattern instruction. . . . I’m going to deny your request

for that second paragraph. I think the jury does have

sufficient ability to consider that evidence appropriately

under all of the court’s instructions when taken as a

whole.’’

Consistent with its foregoing ruling at the charge

conference, the court later instructed the jury in relevant part: ‘‘You may have heard some argument that

the police investigation was inadequate and that one

or more police officers involved in this case were incompetent. The issue for you to decide is not the thoroughness of the investigation or the competence of the

police. The only issue you have to determine is whether

the state, in the light of all the evidence before you, has

proved beyond a reasonable doubt that the defendant

is guilty of the counts with which he is charged.’’

We agree with the defendant that the jury charge

given by the court was erroneous because it failed to
inform the jury of his right to have it consider the

inadequacy of the police investigation in evaluating

whether the state had proven him guilty beyond a reasonable doubt.

Our Supreme Court’s recent decision in State v.

Gomes, supra, 337 Conn. 826, governs the analysis of

this claim on appeal. In Gomes, ‘‘[t]he main defense

advanced by the defendant was that the police had

conducted an inadequate investigation of the incident.’’

Id., 832. Defense counsel in Gomes argued that the state

had not proven its case beyond a reasonable doubt on

the basis of inadequacies in the police investigation. Id.

At trial, defense counsel elicited testimony that (1) the

defendant had left the scene of the crime before the

victim was assaulted, (2) another individual was beaten

up by a group of club patrons immediately after the

victim had sustained her injuries, (3) officers who were

dispatched to the scene were informed that another

individual was a suspect in the assault but never investigated that other individual as a suspect, (4) the officers

did not ask for the names of or contact information for

any witnesses at the scene or attempt to interview them

as to what they had seen, and, (5) although the victim

had selected the defendant’s photograph from an array

at the police station and stated she was 100 percent

confident that he was the person who had attacked

her, she testified that she had never met or seen the

defendant prior to the night in question and that she

had only a split second to observe her attacker. Id.,

831–32, 847–48.

‘‘During closing arguments, defense counsel [in

Gomes] argued that this case screams reasonable doubt.

. . . [T]he police completely failed in this case, and

they completely failed [the victim]. They didn’t go back

to that scene that night. They didn’t identify the crime

scene. They didn’t take any photos so that you, ladies

and gentlemen, could see how the scene looked that

night. How the lighting looked. They never tried to get

any surveillance video. . . . They didn’t confirm what

happened. Defense counsel also argued that the police

spent ninety minutes on this investigation, and that the

case boil[ed] down to one witness and what she saw

in a split second, and she may very well believe that [the

defendant] did this to her.’’ (Internal quotation marks

omitted.) Id., 832.

‘‘In connection with his defense of inadequate police

investigation, the defendant had filed a written request

to charge the jury, which provided in relevant part:

[1] You have heard some arguments that the police

investigation was inadequate and biased. [2] The issue

for you to decide is not the thoroughness of the investigation or the competence of the police. [3] However,

you may consider evidence of the police investigation

as it might relate to any weaknesses in the state’s case.

[4] Again, the only issue you have to determine is
whether the state, in light of all the evidence before

you, has proved beyond a reasonable doubt that the

defendant is guilty of the counts with which he is

charged.’’ (Internal quotation marks omitted.) Id., 833.

During the charge conference in Gomes, ‘‘the court

told defense counsel that it would be charging on the

adequacy of the police investigation, in a form that was

somewhat similar to the defendant’s requested instruction, but that [its instruction] may be a little bit different.’’ (Internal quotation marks omitted.) Id. At trial,

however, the court instructed the jury, in relevant part,

using the then model jury instruction: ‘‘You have heard

some arguments that the police investigation was inadequate and that the police involved in the case were

incompetent or biased. The issue for you to decide is

not the thoroughness of the investigation or the competence of the police. The only issue you have to determine

is whether the state, in light of all the evidence before

you has proved beyond a reasonable doubt that the

defendant is guilty of the counts with which he was

charged.’’ (Internal quotation marks omitted.) Id.

Defense counsel excepted to the jury instructions as

given. Id., 833–34.

The jury subsequently found the defendant guilty,

and the defendant appealed to this court. Id., 834. The

defendant claimed that ‘‘the jury instructions, as given,

deprived him of his right to present a defense of investigative inadequacy. Specifically, the defendant argue[d]

that the [trial] court erred in failing to include point

three of his requested jury charge, which [provides]:

However, you may consider evidence of the police

investigation as it might relate to any weaknesses in

the state’s case. The defendant argue[d] that without

the inclusion of this requested sentence, the jury would

not have understood how to use the evidence [defense

counsel] was able to elicit about the inadequacies of

[the police investigation].’’ (Internal quotation marks

omitted.) Id. This court rejected the defendant’s claim,

‘‘noting that the instruction given by the trial court was

(1) identical to the model criminal jury instruction on

investigative inadequacy provided on the Judicial

Branch website, and (2) consistent with investigative

inadequacy instructions approved by [our Supreme

Court in other cases].’’ (Citations omitted; footnote

omitted.) Id., 834–35. A certified appeal to our Supreme

Court followed. Id., 837.

In Gomes, our Supreme Court reversed, holding that

‘‘the model jury instruction utilized by the trial court

. . . failed to inform the jury not only of a defendant’s

right to rely upon relevant deficiencies or lapses in the

police investigation to raise the specter of reasonable

doubt . . . but also the jury’s concomitant right to consider any such deficiencies in evaluating whether the

state ha[d] proved its case beyond a reasonable doubt.’’

(Citation omitted; internal quotation marks omitted.)
Id., 853.

In explaining its decision, our Supreme Court stated

that, ‘‘[a]lthough the model instruction is similar to the

instructions this court approved in Williams and Collins because it informs the jury not to consider investigative inadequacy in the abstract . . . the model

instruction, unlike the instructions in Williams and Collins, improperly fails to inform the jury that a defendant

may present evidence of investigative inadequacy in his

or her particular case. Indeed, as the defendant argues,

the model instruction omits the very language that the

court in Collins determined rendered the instruction in

that case acceptable because it (1) apprised the jury

that the defendant was entitled to make an investigation

and put his evidence before [it], and (2) directed the

jury to determine, based on all the evidence before [it],

including evidence presented by the defendant, whether

the state had proved the defendant’s guilt beyond a

reasonable doubt. . . . The language that the defendant requested be added to the model jury instruction—

i.e., that the jury may consider evidence of the police

investigation as it might relate to any weaknesses in

the state’s case—would have similarly apprised the jury

of the defendant’s right to present an investigative inadequacy defense and the jury’s right to consider it in

evaluating the strength of the state’s case.’’ (Citations

omitted; emphasis in original; internal quotation marks

omitted.) Id., 853–54 (citing State v. Collins, supra, 299

Conn. 567; State v. Williams, 169 Conn. 322, 363 A.2d

72 (1975)).

The court in Gomes also stated that the model criminal jury instruction on investigative inadequacy ‘‘should

be improved on to better convey, as this court recently

explained in [State v. Wright, supra, 322 Conn. 283], that

‘[t]he inference that may be drawn from an inadequate

police investigation is that the evidence at trial may be

inadequate or unreliable because the police failed to

conduct the scientific tests or to pursue leads that a

reasonable police investigation would have conducted

or investigated, and these tests or investigation reasonably may have led to significant evidence of the defendant’s guilt or innocence. A jury may find a reasonable

doubt if [it] conclude[s] that the investigation was careless, incomplete, or so focused on the defendant that

it ignored leads that may have suggested other culprits.’ ’’ Id., 856 n.20.

‘‘Toward that end, [the court in Gomes] encourage[d]

our trial courts going forward to utilize the following

investigative inadequacy instruction, which bears resemblance to the one utilized by the Massachusetts courts:

You have heard some testimony of witnesses and

arguments by counsel that the state did not (mention

alleged investigative failure: e.g., conduct certain scientific tests, follow standard procedure, perform a thorough and impartial police investigation, etc.) in this
case. This is a factor that you may consider in deciding

whether the state has met its burden of proof in this

case because the defendant may rely on relevant deficiencies or lapses in the police investigation to raise

reasonable doubt. Specifically, you may consider

whether (relevant police investigative action) would

normally be taken under the circumstances, whether, if

(that/those) action(s) (was/were) taken, (it/they) could

reasonably have been expected to lead to significant

evidence of the defendant’s guilt or innocence, and

whether there are reasonable explanations for the

omission of (that/those) action(s). If you find that any

omissions in the investigation were significant and not

reasonably explained, you may consider whether the

omissions tend to affect the quality, reliability, or credibility of the evidence presented by the state to prove

beyond a reasonable doubt that the defendant is guilty

of the count(s) with which (he/she) is charged. The

ultimate issue for you to decide, however, is whether

the state, in light of all of the evidence before you, has

proved beyond a reasonable doubt that the defendant

is guilty of the count(s) with which (he/she) is charged.’’6

Id.

Here, as in Gomes, the main defense theory advanced

by the defendant was that the police had conducted

an inadequate investigation of the incident. The state

attempts to distinguish the facts here from Gomes,

arguing that Gomes is not controlling because the defendant here attacked the conclusions the police drew

from their investigation rather than the actual police

investigation itself. We disagree. As previously

detailed, defense counsel elicited testimony from

numerous witnesses regarding deficiencies or lapses

in the police investigation. Specifically, he presented

evidence that the police failed (1) to consider the possibility that Lovering’s allegation that the defendant strangled him was not true or that Lovering’s injuries were

caused by autoerotic asphyxiation, (2) to obtain and

preserve Lovering’s Facebook records, (3) to make a

time line of events on October 21 and 22, (4) to interview

Lovering or his mother about Lovering’s alleged statement to her that the defendant had strangled him, (5)

to reconcile the inconsistency between the statement

of Lovering’s mother that Lovering had first awakened

from his coma and begun to talk to her on November

2 with his phone records, which indicated he had first

awakened from the coma and begun to use his cell

phone on October 27, (6) to consider that the defendant’s autism was a possible explanation for his unusual

behavior after he reported Lovering’s injuries to the

police, and (7) to sufficiently document, either descriptively or photographically, the injuries to Lovering’s

neck. Contrary to the state’s argument, this evidence

certainly highlights shortcomings in the police investigation itself, not simply in the conclusions the police

drew from their investigation. Moreover, the court
noted during the charge conference that ‘‘it’s factually

disputed that the police investigation was inadequate

and the police involved were incompetent.’’ As a result,

the defendant was entitled to have the jury consider

evidence of any relevant deficiencies or lapses it might

find in the police investigation as bases for entertaining

reasonable doubt as to the defendant’s guilt. See State

v. Wright, supra, 322 Conn. 282 (‘‘[a] defendant may

. . . rely upon relevant deficiencies or lapses in the

police investigation to raise the specter of reasonable

doubt, and the trial court violates his right to a fair trial

by precluding the jury from considering evidence to

that effect’’ (internal quotation marks omitted)).

Additionally, here, as in Gomes, by instructing the

jury that ‘‘[t]he issue for [it] to decide [was] not the

thoroughness of the investigation or the competence

of the police’’ and that ‘‘[t]he only issue [it had] to

determine is whether the state, in the light of all the

evidence . . . has proved beyond a reasonable doubt

that the defendant is guilty of the counts with which

he is charged,’’ the court failed to inform the jury of

the defendant’s right to rely on relevant deficiencies or

lapses in the police investigation as possible bases for

raising reasonable doubt as to his guilt.7 The jury

instruction failed to inform the jury of its ‘‘concomitant

right to consider any such deficiencies in evaluating

whether the state has proved its case beyond a reasonable doubt.’’ State v. Gomes, supra, 337 Conn. 853. Had

language of the sort requested by the defendant in the

second paragraph of his request to charge been added,

it would, as the current model jury instruction does,

have ‘‘apprised the jury of the defendant’s right to present an investigative inadequacy defense and the jury’s

right to consider it in evaluating the strength of the

state’s case.’’ Id., 854.

Because the court failed to inform the jury of the

defendant’s right to rely on the inadequacy of the police

investigation and the jury’s right to rely on such inadequacies in evaluating whether the state has proved its

case beyond a reasonable doubt, we conclude that the

trial court committed instructional error in charging

the jury as it did.

B

Having determined that the trial court improperly

instructed the jury as to how it might consider evidence

of the inadequacy of the police investigation in conducting its deliberations, we next consider whether the jury

charge resulted in prejudice to the defendant. In so

doing, we first note that ‘‘the state bears the burden of

proving that the constitutional impropriety was harmless beyond a reasonable doubt.’’ State v. Brown, 279

Conn. 493, 511, 903 A.2d 169 (2006).

The defendant claims that the court’s instructional

error was harmful because ‘‘there is at the very least a
reasonable possibility that the jury was misled by the

[trial] court’s instructions’’ given the overall weakness

of the state’s case. We agree.

‘‘When a defendant challenges the trial court’s failure

to provide a requested charge, or some other impropriety in the jury instructions, one of two separate and

distinct legal standards of review is used. If the claimed

omission or impropriety is of constitutional dimension,

we must be convinced that there is no reasonable possibility that it affected the verdict. . . . When the error

is merely of an evidentiary nature, then the defendant

must prove that it was reasonably probable that the

jury was misled.’’ (Citation omitted.) State v. Ali, 233

Conn. 403, 422–23, 660 A.2d 337 (1995); see also State

v. Gomes, supra, 337 Conn. 849 (‘‘[a]n error in instructions in a criminal case is reversible error when it is

shown that it is reasonably possible for errors of constitutional dimension or reasonably probable for nonconstitutional errors that the jury [was] misled’’ (internal

quotation marks omitted)).

The challenged jury instructions here involve a constitutional right. See State v. Collins, supra, 299 Conn.

598 (‘‘[a] fundamental element of due process of law

is the right of a defendant charged with a crime to

establish a defense’’ (internal quotation marks omitted)). ‘‘A defendant may . . . rely upon relevant deficiencies or lapses in the police investigation to raise

the specter of reasonable doubt, and the trial court

violates his right to a fair trial by precluding the jury

from considering evidence to that effect.’’ (Internal quotation marks omitted.) State v. Wright, supra, 322 Conn.

282. Because the defendant’s claim is of constitutional

magnitude, we review his claim by the ‘‘ ‘reasonable

possibility’ ’’ standard. See State v. Collins, supra,

598–99 (applying ‘‘reasonable possibility’’ standard

where defendant claimed trial court violated his constitutional right to present defense by improperly instructingjury that adequacy of police investigation was not

issue in case).

‘‘[T]he United States Supreme Court has repeatedly

reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may

confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’’

(Internal quotation marks omitted.) State v. Brown,

supra, 279 Conn. 504. ‘‘[I]t is well established that a

defect in a jury charge which raises a constitutional

question is reversible error if it is reasonably possible

that, considering the charge as a whole, the jury was

misled. . . . [T]he test for determining whether a constitutional error is harmless . . . is whether it appears

beyond a reasonable doubt that the error complained

of did not contribute to the verdict obtained.’’ (Internal

quotation marks omitted.) Bell v. Commissioner of Correction, 184 Conn. App. 150, 162, 194 A.3d 809 (2018),
aff’d, 339 Conn. 79, 259 A.3d 1073 (2021).

In Gomes, the court held that it was apparent that

the instructional error complained of was harmful to

the defendant, ‘‘[g]iven the relative weakness of the

state’s case . . . .’’ State v. Gomes, supra, 337 Conn.

855. The court determined that the state’s case was

relatively weak because it ‘‘turned almost entirely on

the believability of the victim’s testimony that, although

she had never seen the defendant before the night in

question and could not describe him to [a police officer]

when they spoke at the hospital following the assault,

and although the attack occurred in ‘a split second’

from behind a six foot fence, she was able to identify the

defendant as her assailant from a photographic array

conducted more than two weeks later. Defense counsel

sought to exploit and amplify the weaknesses in the

state’s evidence by directing the jury’s attention to inadequacies and omissions in the investigation, in particular [the officers’] failure to consider [another individual]

as a potential suspect, even though he was identified

as such by the police dispatcher, as well as their failure

to interview any of the witnesses who approached them

on the night in question outside the club, claiming to

have information about the assault. Defense counsel

asked the jury to find the defendant not guilty on the

basis of these investigative lapses because they raised

a reasonable doubt as to the trustworthiness of the

victim’s identification of him as the person who

attacked her. We cannot conclude that a properly

instructed jury would not have done so.’’ Id., 855–56.

Our Supreme Court in Gomes reasoned that there

was ‘‘a significant risk that the instruction given by the

trial court misled the jury to believe that it could not

consider the defendant’s arguments concerning the adequacy of the police investigation. Although the first

sentence of the instruction acknowledged that the

defendant made arguments that the police had failed

to investigate adequately the crime in question, in the

very next sentence, the jury was instructed that the

adequacy of the police investigation was not for it to

decide. This admonishment was reinforced by the third

and final sentence that the only issue for the jury to

decide was whether the state had proven the defendant’s guilt beyond a reasonable doubt. . . . Thus,

rather than apprising the jury that reasonable doubt

could be found to exist if the jury conclude[d] that the

investigation was careless, incomplete, or so focused

on the defendant that it ignored leads that may have

suggested other culprits . . . there is a reasonable possibility that the instruction had the opposite effect and

caused the jury to believe that it was prohibited from

considering any such evidence.’’ (Citation omitted;

emphasis in original; internal quotation marks omitted.)

Id., 854–55.

Considered in light of the decision in Gomes, the
following additional facts are relevant to our resolution

of the state’s claim of harmlessness with respect to the

improper instruction challenged in this appeal. During

the trial, it became apparent that there were weaknesses in the state’s case against the defendant. Importantly, no one—not even Lovering—claimed to have

seen the defendant strangle Lovering. According to Lovering’s testimony at trial, when he was allegedly being

strangled, he was sitting with his back to the door, on

his knees with his lower legs tucked beneath him, and

his buttocks resting on his legs. Lovering testified that

this was a common position for him to sit in. At the

time, Lovering claimed, he was talking to Muskus, who

was sitting on an air mattress in front of him. Lovering

testified that, while he and Muskus were talking, he felt

pressure around his neck from either rope or a string

and then everything went black. However, Lovering

testified that he did not see the person who allegedly

strangled him. According to Lovering, the next thing he

remembered was waking up in the hospital. Muskus,

however, did not corroborate Lovering’s version of

events at trial. According to Muskus’ testimony, in the

early hours of October 22, after the neighbors had left

the apartment, she and the defendant were in the defendant’s room when Lovering came into the room.

According to Muskus, the defendant told Lovering that

he could no longer stay in the apartment. Muskus testified that Lovering began crying. Muskus testified that

she remained in the defendant’s room for the remainder

of the night.

Although Lovering suggested that the only possible

explanation for his injuries was that the defendant had

attempted to strangle him, testimony from other witnesses supported several alternative explanations for

the red marks on his neck. Lin Monte testified that

there were three possible explanations for those marks,

including (1) an attempted suicide, (2) strangulation,

or (3) autoerotic asphyxiation. Dragovic testified that,

because of the single, blurry photograph of Lovering’s

neck injury, ‘‘[t]here [were] endless possibilities for [the

pattern on Lovering’s neck], based on how it appear[ed]’’

and the ‘‘extent of documentation present[ed] to us.’’

Paramedic Kelsey testified that it was possible Lovering’s condition had been caused by autoerotic asphyxiation. Paramedic Ridenour testified that the marks on

Lovering’s neck were of various colors, indicating that

some of the marks were fresh but others were old.

Multiple witnesses also testified about possible

causes of the injuries to Lovering’s legs. Shah testified

that the lack of blood flow to Lovering’s legs could have

been the result of alcohol intoxication. Shah explained

that alcohol intoxication can cause a person to lose

consciousness and remain immobile for a prolonged

period of time, cutting off blood flow to parts of his

body. Shah testified that Lovering could have sustained

the observed injuries to his legs if he had fallen over
backward while kneeling with his lower legs on the

floor and his buttocks resting on his heels. Dragovic

also testified that the observed injuries to Lovering’s

legs could have been caused by acute alcohol intoxication alone, stating: ‘‘You can’t rule it out because, if

there is alcohol intoxication, that is the most logical

explanation of these complications . . . because of the

position one takes being intoxicated, being under the

influence of alcohol, and being in [a] prolonged position

in such a way so that it undercuts the circulation, the

blood supply to the large bulk of skeletal muscle and

skeletal muscle, after [a] few hours, has the tendency

to start necrosis and it undergoes necrosis and it shuts

down [the] kidneys and there is maybe irreparable damage.’’

Inconsistencies in Lovering’s recollection of events

were also revealed at trial. Lovering testified that he

has had issues with his memory since suffering a head

injury in 2014. Inconsistencies existed between Lovering’s written statement to the police on November

11, 2016, and his testimony at trial. Lovering gave a

signed, written statement to the police, which did not

mention the neighbors coming to the apartment. At

trial, however, Lovering testified that he had invited his

neighbors into the apartment for a drink.

When Lovering initially woke up from the coma in

the hospital, he told his doctors that he had no recollection of what had happened to him on October 22. It

was not until several days later, on November 2, that

he first told his mother that the defendant had strangled

him. When questioned about this inconsistency at trial,

Lovering testified that he did in fact remember what

had happened to him when he first spoke to his doctors

but he had lied to the doctors about it. Lovering testified

that he lied to his doctors about the cause of his injuries

because he did not want to deal with the situation.

Furthermore, a message suggesting that Lovering was

planning to die by suicide was sent from Lovering’s

Facebook account to Muskus’ Facebook account at 3:30

a.m. on October 22, 2016. The message stated: ‘‘Have

fun with my death.’’ Lovering claimed that he never sent

that message. On cross-examination, Lovering testified

that he did not have any recollection of what happened

during the time period when the message was sent.

Lovering testified that he did not believe he sent the

message because he ‘‘would never put anybody through

that turmoil’’ of thinking that he was going to kill himself. During trial, however, substantial challenges were

made to Lovering’s memory and general credibility. Lovering admitted, for example, to having had problems

with drugs and alcohol in the past but firmly denied

that he was intoxicated in the early morning hours

of October 22. This claim was flatly contradicted by

Gottshall, who testified that she had seen Lovering at

about 2:30 a.m. on that date when she and her boyfriend
at the time, who then lived next door to Lovering,

returned to the boyfriend’s apartment. According to

Gottshall, Lovering appeared to be intoxicated at that

time, for his speech was slurred, he was stumbling when

he walked, and at one point he fell over in the kitchen,

striking the stove.

The defense also argued that any alleged inconsistencies in the defendant’s recollection of events and his

behavior could be explained by his autism. Psychiatrist

Alexander Westphal testified that the defendant was

autistic, a diagnosis having been made in 2013. According

to Westphal, people with autism may have difficulty

telling stories in a coherent manner, may have memory

deficits, and may attempt to fill in gaps in their memories with events that may not have actually occurred.

Here, as in Gomes, there is a ‘‘significant risk that

the instruction given by the trial court misled the jury

to believe that it could not consider the defendant’s

arguments concerning the adequacy of the police investigation.’’ (Emphasis in original.) State v. Gomes, supra,

Conn. 854. As the court explained in Gomes, ‘‘[a]lthough

the first sentence of the instruction acknowledged that

the defendant made arguments that the police had failed

to investigate adequately the crime in question, in the

very next sentence, the jury was instructed that the

adequacy of the police investigation was not for it to

decide. This admonishment was reinforced by the third

and final sentence that the only issue for the jury to

decide was whether the state had proven the defendant’s guilt beyond a reasonable doubt. . . . Thus,

rather than apprising the jury that reasonable doubt

could be found to exist if the jury conclude[d] that the

investigation was careless, incomplete, or so focused

on the defendant that it ignored leads that may have

suggested other culprits . . . there is a reasonable possibility that the instruction had the opposite effect and

caused the jury to believe that it was prohibited from

considering any such evidence.’’ (Citation omitted;

emphasis in original; internal quotation marks omitted.)

Id., 854–55. Because there is a reasonable possibility

that the instruction caused the jury to believe that it

was prohibited from considering evidence of the inadequacy of the police investigation, the jury may have

ignored key evidence introduced by the defendant at

trial, as previously described, concerning the inadequacy of the investigation.

Furthermore, ‘‘[g]iven the relative weakness of the

state’s case, it also is apparent that the instructional

error was harmful to the defendant.’’ Id., 855. As previously noted, the state’s case against the defendant

turned almost entirely on the believability of Lovering’s

allegation that the defendant had strangled him,

although Lovering did not actually see the defendant

attempt to strangle him. Defense counsel also adduced

evidence tending to undermine Lovering’s credibility,
particularly as to inconsistencies in his claimed recollection of events on the evening of October 22, lies he

admittedly told his doctors after he awakened from his

coma, and the message sent from his Facebook account

to Muskus’ Facebook account that stated: ‘‘Have fun

with my death,’’ which suggested that he was then contemplating his own imminent death, and thus possibly

planning to die by suicide.

At trial, defense counsel sought to exploit and amplify

the weaknesses in the state’s case by directing the jury’s

attention to testimony from various witnesses concerning these weaknesses. In particular, defense counsel

elicited testimony that there were alternative explanations for Lovering’s neck injuries, including attempted

suicide or autoerotic asphyxiation and that the marks

on Lovering’s neck were of various colors, indicating

that some of them may have been made on a previous

occasion. Testimony also revealed that Lovering’s leg

injuries could have been caused by prolonged immobility of his legs during a period of unconsciousness

resulting from acute alcohol intoxication. Defense

counsel also argued that any inconsistencies in the

defendant’s statements and his odd mannerisms could

be explained by his autism.

During closing argument, defense counsel asked the

jury to find the defendant not guilty on the basis of

reasonable doubt arising both from the many alleged

inadequacies of the police investigation that led to his

arrest and prosecution, and from the overall weakness

of the state’s case. Here, as in Gomes, we conclude that

the defendant’s conviction must be reversed because

the state has not proved beyond a reasonable doubt that

a properly instructed jury would not have entertained

a reasonable doubt as to the defendant’s guilt on the

basis of the alleged deficiencies in the police investigation and thus found the defendant not guilty of all

charges in this case.

As a result, we conclude that there was a reasonable

possibility that the trial court’s instructional error misled the jury, that it affected the verdict, and, thus, that

it was not harmless beyond a reasonable doubt,

resulting in prejudice to the defendant. See Bell v. Commissioner of Correction, supra, 184 Conn. App. 162

(‘‘[I]t is well established that a defect in a jury charge

which raises a constitutional question is reversible error

if it is reasonably possible that, considering the charge

as a whole, the jury was misled. . . . [T]he test for

determining whether a constitutional error is harmless

. . . is whether it appears beyond a reasonable doubt

that the error complained of did not contribute to the

verdict obtained.’’ (Internal quotation marks omitted.)).

Accordingly, the proper remedy is to reverse the judgment of conviction and remand this case for a new trial.

II
The defendant also claims that the trial court improperly admitted into evidence a police disciplinary report

in violation of his state and federal constitutional rights

to confront the witnesses against him.8 Specifically, the

defendant argues that the report (1) constituted hearsay

that was not admissible under the business record

exception to the hearsay rule and (2) was testimonial.

We agree.

‘‘The standard under which we review evidentiary

claims depends on the specific nature of the claim presented. . . . To the extent a trial court’s admission of

evidence is based on an interpretation of [law], our standardof 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. . . . As

a general matter, hearsay statements may not be admitted into evidence unless they fall within a recognized

exception to the hearsay rule. . . . In the context of

a criminal trial, however, the admission of a hearsay

statement against a defendant is further limited by the

confrontation clause of the sixth amendment. Under

Crawford v. Washington, [541 U.S. 36, 124 S. Ct. 1354,

158 L. Ed. 2d 177 (2004)], hearsay statements of an

unavailable witness that are testimonial in nature may

be admitted in accordance with the confrontation

clause only if the defendant previously has had the

opportunity to cross-examine the unavailable witness.

Nontestimonial statements, however, are not subject

to the confrontation clause and may be admitted under

state rules of evidence. . . . Thus, the threshold inquiries that determine the nature of the claim are whether

the statement was hearsay, and if so, whether the statement was testimonial in nature, questions of law over

which our review is plenary.’’ (Citations omitted; internal quotation marks omitted.) State v. Smith, 289 Conn.

598, 617–19, 960 A.2d 993 (2008).

The following additional facts and procedural history

are relevant to our resolution of this claim on appeal.

During trial, the prosecution sought to introduce into

evidence a police observation report (report) written

by Sergeant Thomas Lazzaro on January 7, 2017, concerning Marceau’s performance during the investigation

of this case, in order to show the actions taken by the

police department in response to that performance. The

first page of the report indicated that Marceau’s work on

this case was ‘‘unsatisfactory’’ as to his (1) techniques

of assignment, (2) judgment and decision-making, (3)

quality of work, and (4) initiative. The second page,

with the subsequently redacted material italicized, read:

‘‘On 10/22/2016 at approximately 1733 hours Officer

Marceau and Officer Homand responded to a residence

for a medical call . . . . The caller stated that the victim had red marks around his neck and stated he

believed the victim tried to hang himself. While at the
scene the victim was not conscious and could not provide any information. Officer Marceau stated there were

ligature marks present on the victim’s neck. As a result

Officer Marceau investigated the incident as a suicide

attempt [and] the victim was transported to Backus

Hospital. It was later determined, when the victim

regained consciousness, that the incident was not a

suicide attempt. The victim later provided information

that suggested the reporting person caused the victim’s

injuries. The case was later turned over to the Detective

Division as a serious assault investigation.

‘‘In light of the facts provided following Officer Marceau’s investigation, it was determined that the information which suggested the incident was an assault could

have been discovered during the initial report. Some

inconsistencies in the information provided by the

reporting person and the scene itself clearly required

further investigation by the officers who initially

responded to the scene. As a result, valuable evidence

and on scene interview opportunities may have been

lost which adversely affected the investigation.

“More specifically, Officer Marceau failed to look

for, ask and identify any object in the area that could

have been used to make the victim’s ligature marks

which he clearly observed. Officer Marceau failed to

recognize the statements from the witnesses and information did not correspond to what he was observing

in the area and around the victim. No photographs

were taken of the scene. Furthermore, the on duty road

supervisor was not contacted as a resource.

‘‘As a result of this incident it is apparent that Officer

Marceau can improve his performance in similar circumstances by probing further in on scene interviews

with principal parties involved. Officer Marceau can

improve by not taking information provided to him at

face value. Officer Marceau should spend more time

asking more questions when his observations do not

match information he gathers from evidence at the

scene, witnesses and the statements of medical personnel on scene or anyone else involved. Officer Marceau

should be clearly aware that if he has a question at any

time for any incident, he can contact the road supervisor

and should that supervisor not be available, he may

contact the shift supervisor.’’

The defense objected to the admission of the report,

arguing that it included the state’s opinion about the

strength of its case. Defense counsel argued that ‘‘there

are things in [the report] that are clearly just bolstering

of the prosecution’s case. Where whoever it is that

wrote this report, Sergeant Lazzaro is claiming that, in

light of the facts provided following Officer Marceau’s

investigation, it was determined that the information,

which suggests the incident was an assault and could

have been discovered during the initial report. That’s

just plainly bolstering. It’s an opinion that—it shouldn’t
be admitted into evidence.’’ Defense counsel also stated

that he planned to question Marceau about the report

but that he ‘‘certainly wouldn’t be offering it for the

truth of this was clearly an assault. That’s highly inappropriate.’’ Defense counsel also added that, ‘‘[t]his is

not a disciplinary report, Your Honor. It’s made to

appear as if he’s being disciplined to bolster their case,

but they shouldn’t be allowed to, in the process, express

their opinions to the jury about the strength of their

case.’’

In response to defense counsel’s objection, the prosecutor argued that the state was ‘‘claiming all of it now

because this was the action that they took. And it

doesn’t say clearly assaulted. It says suggested, I think,

but this is the action that the police department took

against him, and that’s not exactly phrased properly.

But this is the police response to this. That the objection

that this bolsters the state’s case—well, all of our evidence is intended to bolster the state’s case. I mean,

there’s nothing particularly wrong with the state trying

to move its case forward. There’s no question that’s

what I’m doing.’’ The prosecutor argued that the report

should ‘‘go into evidence with the possibility of redactions in the future.’’

The court stated, ‘‘I haven’t heard any testimony

about [the report] yet, so I don’t know if you’re asking

me to rule on it at this point, but, based on what I

understand or anticipate the state would be establishing, I would think that some of this would be admissible,

and I would entertain a request that some parts of it be

redacted.’’ The court then overruled defense counsel’s

objection, and the report was admitted into evidence

as a full exhibit subject to redaction.

The following day, the defendant filed a motion for

reconsideration regarding the admission of the police

report. In his motion, the defendant argued that the

report was inadmissible hearsay and that the state had

not laid an adequate foundation to meet the requirements of the business record exception to the rule

against hearsay. The defendant further argued that the

admission of the report violated his right to confront

the witnesses against him pursuant to the sixth and

fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.

The court heard argument on the motion, and defense

counsel iterated his assertion that the report constituted

inadmissible hearsay and that the state had not laid an

adequate foundation to meet the requirements of the

business record exception because ‘‘there’s no evidence

that it was the regular course of business to make these

observation reports or that this one, in particular, was

made in a regular course of business. In fact, it seems

as though this was a special, rare occurrence that’s

outside the usual course of business for the police
department. Next, in order for something to be a business record, it needs to be created within a reasonable

amount of time after the incident that’s being described.

Here, this was made close to three months after the

investigation was initiated, and the events described

took place almost three months before the report was

prepared. Finally, it was prepared by Sergeant [Lazzaro], who has no role in the investigation of this case.

It’s not based, in any way, on his personal knowledge,

and so, given that, there’s no reason to think that it has

the requisite reliability to qualify as a business record.

The second related issue is that it violates the defendant’s right to confrontation. The person who produced

this record has not been a witness. . . . The defendant

has a right to be able to present evidence before the jury

through cross-examination of any witness who testifies

against him.’’

The prosecutor, in response, argued that, ‘‘we did

move pursuant to the business record exception, [§ 8-

4 of the Connecticut Code of Evidence], and I think we

did lay a proper foundation under those rules, and I

don’t think it’s fair, at this juncture, after it’s already

been admitted, to claim a lack of proper foundation.

. . . In regard to [the argument] that the record is

required to be done or created close in time to the event

to which [it] purports to be about, we’re not saying

that that record is, in and of itself, about the events of

October 22, 2016. We’re saying it’s about the police

officer’s conduct, and there was what is referred to in

the police department as an observation—an observation report was made, and this document is contemporaneous with that event. I’m using the word disciplined,

but it’s not exactly the accurate word, as I understand

the rules of the police department, but it is an accurate

account of what the police department did in regard to

this police officer that the higher-ups felt had done a

job that could have been done better. And that’s what

that report is about, directly. It’s not directly about the

incident of October the 22nd, 2016, nor do we claim it.

[Defense counsel] says that the individual who prepared

the report wasn’t here or available for cross-examination. Of course, this is the exact reason for the business

record exception. That’s [sub]section B [of § 8-4 of the

Connecticut Code of Evidence] entitled witness need

not be available. . . . And the point of the document

was that the police officer was held accountable in

some sort of way by the authorities for what they considered to be an inadequate performance on or about

October 22, 2016. That’s what the report is meant to

address. That the police department looked at this conduct of the police officer and found it to be an inadequate response.’’ The prosecutor also argued, in the

alternative: ‘‘I would assert that it’s introduced [as nonhearsay], and it is not for the truth of what’s purported

in the document. The purpose of the entry was to show

this is the action the police department took in regard
to this investigation by this particular police officer.’’

In rebuttal, defense counsel argued that ‘‘we need to

be able to cross-examine the person who made [the

report] in order to adequately present the case. Second,

almost the entire second page describes the investigation of this case. Now, if this document is admitted

for the purpose of simply showing that someone was

unhappy with his work, I think virtually the entirety of

the second page needs to be redacted because none of

that would come in under, through the business record

exception. . . . And I would point out, even though

the business record exception does allow for documents that were not produced—or it doesn’t require the

maker of the document to come in—the confrontation

clause does, and, in this instance, a criminal proceeding,

that trumps the rule of evidence.’’

The court subsequently granted the defendant’s

motion for reconsideration, but after reconsideration,

it ruled that its ‘‘prior decision to allow [the report] to

be a full exhibit with redactions stands.’’ From the

bench, the court stated: ‘‘[U]nder the circumstances,

since the document is being offered by the state only

to show that this was action that the Norwich Police

Department took, I am going to permit it to continue

to be marked as a full exhibit. However, I do understand

the defendant’s concern, and I am going to permit substantial redactions, particularly with respect to the narrative on page two, which, I think, could fairly be viewed

as bolstering the state’s case improperly. So, I am going

to permit anything that could be viewed that way to be

redacted from this document. But because the state is

offering it really only to show that this was the action

that the Norwich Police Department took and not for

the truth of those matters that are contained, particularly on page two, I am going to permit it to continue

to be marked as a full exhibit.’’ Redactions, as detailed

previously, were subsequently made to the report, and

the report was published to the jury as a full exhibit.

We agree with the defendant that the report constitutes inadmissible hearsay and that the state failed to lay

an adequate foundation to satisfy the business record

exception to the hearsay rule. We further agree that

the report was testimonial, and therefore, its admission

into evidence in this case violated the defendant’s state

and federal constitutional rights to confront the witnesses against him.

We first consider, as a threshold inquiry, whether the

report constituted hearsay. ‘‘An out-of-court statement

offered to establish the truth of the matter asserted is

hearsay. . . . The hearsay rule forbids evidence of outof-court assertions to prove the facts asserted in them.

If the statement is not an assertion or is not offered to

prove the facts asserted, it is not hearsay.’’ (Internal

quotation marks omitted.) State v. Gordon, 206 Conn.

App. 70, 82, 259 A.3d 676, cert. granted, 339 Conn. 913,
262 A.3d 135 (2021). The report is inarguably an outof-court statement. The report constitutes a statement

because it is a written assertion. See id., 83 (‘‘[a] statement is defined as an oral or written assertion’’ (internal

quotation marks omitted)). The statement was also

made out of court. Therefore, we must consider the

purpose for which the report was admitted.

We conclude that the report was admitted for the

truth of the matter asserted. ‘‘It is settled law that outof-court statements that are not offered to establish the

truth of the matter asserted are not hearsay. [A]n outof-court statement offered to prove the truth of the

matter asserted is hearsay. . . . If such a statement is

offered for a purpose other than establishing the truth

of the matters contained in the statement, it is not

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

Willoughby, 153 Conn. App. 611, 617–18, 102 A.3d 1118

(2014). In determining whether an out-of-court statement is offered for the truth of the matter asserted, and

thus is hearsay, ‘‘the matter asserted [is] the matter

asserted by the writing or speech, not the matter

asserted by the proponent of the evidence.’’ (Internal

quotation marks omitted.) State v. Esposito, 223 Conn.

299, 315, 613 A.2d 242 (1992); see also State v. Williams,

48 Conn. App. 361, 368–69, 709 A.2d 43 (‘‘[t]he matter

asserted [in an out-of-court statement is] the matter

asserted by the writing or speech, not the matter

asserted by the proponent of the evidence’’ (internal

quotation marks omitted)), cert. denied, 245 Conn. 907,

718 A.2d 16 (1998).

Although the trial court determined that the report

was offered by the state only to show that the Norwich

Police Department took action with regard to Marceau’s

performance during the investigation of the case, the

matter asserted in the report relates to the investigation

of this case and the quality of Marceau’s work on the

case. The first page of the report asserts that Marceau’s

work on the case was unsatisfactory. Although the second page of the report was subject to redactions, the

matter asserted on the second page is that Marceau’s

initial determination that the incident was a suicide

attempt was incorrect and that Marceau’s actions leading him to that conclusion were inadequate. Thus, the

report was introduced to prove that Marceau’s investigation and conclusion that the incident was a suicide

attempt were inadequate and unsatisfactory. For these

reasons, we conclude that the report was introduced

to prove the truth of its contents.

Having determined that the report constituted hearsay, we next determine whether the report was admissible under a hearsay exception. As detailed previously,

the state argued at trial that the report was admissible

under the business record exception. Because the trial

court concluded that the report was not hearsay, it did

not make an explicit finding concerning whether the
report fell under the business record exception. ‘‘[H]earsay may be admitted if there is a sufficient probability

that the statement is reliable and trustworthy, if the

evidence contained in the statement is necessary to

resolution of the case, and if the trial court concludes

that admitting the statement is in the interests of justice.

. . . Some types of admissible hearsay occur frequently

enough that certain defined exceptions to the general

rule of inadmissibility have come to be recognized.’’

(Citation omitted; internal quotation marks omitted.)

State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985).

One such exception is the business record exception

set forth in General Statutes § 52-180.9

‘‘To admit evidence under the business record exception to the hearsay rule, a trial court judge must find

that the record satisfies each of the three conditions

set forth in . . . § 52-180. The court must determine,

before concluding that it is admissible, that the record

was made in the regular course of business, that it was

the regular course of such business to make such a

record, and that it was made at the time of the act

described in the report, or within a reasonable time

thereafter.’’ (Internal quotation marks omitted.) River

Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn.

787, 793–94, 595 A.2d 839 (1991).

The state failed to establish that the report in this

case was made in the regular course of business, instead

of in anticipation of litigation. ‘‘The business record

exception recognizes that documents used for business

are trustworthy. Those prepared for litigation, however,

lack the presumption of trustworthiness.’’ Connecticut

Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702,

710, 638 A.2d 44 (1994). ‘‘[D]ocuments prepared for

litigation are excluded, not on a per se basis, but rather

upon an inquiry into whether such documents bear

circumstantial indicia of lack of trustworthiness. In the

exercise of appropriate discretion, courts may exclude

such records where they are self-serving and a motive

for falsification can be demonstrated.’’ (Internal quotation

marks omitted.) Webster Bank v. Flanagan, 51 Conn.

App. 733, 749, 725 A.2d 975 (1999). We conclude that

the report here lacks trustworthiness. The report was

made on January 7, 2017, after the defendant had been

arrested, but before the commencement of his trial. The

report was also made three months after the actions

described in it. Because the report was made after the

defendant’s arrest and three months after the events it

describes, it does not have the indicia of trustworthiness required to fall within the business record exception. We therefore conclude that the report constitutes

inadmissible hearsay and does not fall under the business record exception.

The defendant also claims that the admission of the

report violated his right to confront the witnesses

against him. ‘‘[T]he state’s use of hearsay evidence
against an accused in a criminal trial is limited by the

confrontation clause of the sixth amendment. . . . The

sixth amendment to the constitution of the United

States guarantees the right of an accused in a criminal

prosecution to be confronted with the witnesses against

him. This right is secured for defendants in state criminal proceedings. . . . [T]he primary interest secured

by confrontation is the right of cross-examination.’’

(Citations omitted; internal quotation marks omitted.)

State v. Carpenter, 275 Conn. 785, 816, 882 A.2d 604

(2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164

L. Ed. 2d 309 (2006). ‘‘The confrontation clause of the

sixth amendment is made applicable to the states through

the due process clause of the fourteenth amendment.’’

(Internal quotation marks omitted.) State v. Simpson,

286 Conn. 634, 636 n.4, 945 A.2d 449 (2008). Article first,

§ 8, of the Connecticut constitution also provides that

a defendant has the right ‘‘to be confronted by the

witnesses against him . . . .’’ Conn. Const., art. I, § 8.

‘‘[O]ur Supreme Court has interpreted Connecticut’s

confrontation clause to provide the same protections

as its federal counterpart. . . . [W]ith respect to the

right to confrontation within article first, § 8, of our

state constitution, its language is nearly identical to the

confrontation clause in the United States constitution.

The provisions have a shared genesis in the common

law. . . . [T]he principles of interpretation for applying

these clauses are identical.’’ (Internal quotation marks

omitted.) State v. Hutton, 188 Conn. App. 481, 500 n.8,

205 A.3d 637 (2019).

The initial inquiry to determine whether the defendant’s right to confrontation was violated is whether

the hearsay statement is testimonial in nature. See State

v. Lahai, 128 Conn. App. 448, 468, 18 A.3d 630 (‘‘the

threshold inquiry for purposes of the admissibility of

such statements under the confrontation clause is

whether they are testimonial in nature’’ (internal quotation marks omitted)), cert. denied, 301 Conn. 934, 23

A.3d 727 (2011). ‘‘A police report is a quintessential

example of an extrajudicial statement contained in a

formalized testimonial material. It is signed by the

attesting officer under penalty of law. It is prepared with

an eye toward prosecution . . . and it is inherently

accusatory. . . . The primary purpose of a police

report is to establish or prove past events potentially

relevant to later criminal prosecution.’’ (Citations omitted; internal quotation marks omitted.) Id., 469. Here,

we find that the report was testimonial in nature because

its purpose was to establish that Marceau’s work on

the present case and conclusion that the incident under

investigation was a suicide attempt rather than a criminal assault was inadequate and unsatisfactory. The

report suggests that Lovering was assaulted—a fact

relevant to the defendant’s prosecution. The statements

in the report were ‘‘made under circumstances which

would lead an objective witness reasonably to believe
that the statement would be available for use at a later

trial . . . .’’ (Internal quotation marks omitted.) Id.,

470–71.

In Crawford v. Washington, supra, 541 U.S. 68, the

United States Supreme Court held that ‘‘testimonial

hearsay statements may be admitted as evidence

against an accused at a criminal trial only when (1) the

declarant is unavailable to testify, and (2) the defendant

had a prior opportunity to cross-examine the declarant.’’ (Emphasis in original; internal quotation marks

omitted.) State v. Carpenter, supra, 275 Conn. 817. Here,

the state did not introduce any evidence that (1) Lazzaro, who prepared the report, was unavailable to testify

at trial, and (2) the defendant had a prior opportunity

to cross-examine Lazzaro. Therefore, we conclude that

the trial court improperly admitted the report into evidence in violation of the defendant’s right to confront

witnesses against him.

We do not determine whether admission of the report

into evidence was harmless error. See State v. Raynor,

337 Conn. 527, 561 n.20, 254 A.3d 874 (2020) (‘‘The state

also contends that any error in this regard was harmless.

Because we address this claim as an issue likely to arise

on remand, we need not address questions of harmless

error [with respect to this claim] in the present

appeal.’’).

The judgment is reversed and the case is remanded

for a new trial.

In this opinion the other judges concurred.

1 For clarity and ease of discussion, we have reordered the claims from

how they are set forth in the defendant’s brief.

2

In 2013, it was determined that the defendant was autistic. At trial,

defense counsel argued that any inconsistencies in the defendant’s statements and his odd mannerisms could be explained by his autism.

3 The jury did not consider, and the trial court dismissed, a charge of

assault in the second degree in violation of General Statutes § 53a-60 (a) (1).

4 Autoerotic asphyxiation is ‘‘the practice of limiting the flow of oxygen

to the brain during masturbation in an effort to heighten sexual pleasure.’’

Critchlow v. First UNUM Life Ins. Co. of America, 378 F.3d 246, 250 (2d

Cir. 2004).

5 Connecticut Criminal Jury Instruction 2.6-14, titled ‘‘Adequacy of Police

Investigation,’’ was approved by the Judicial Branch’s Criminal Jury Instruction Committee on November 6, 2014. That instruction, as it existed at the

time of the charge conference, provided: ‘‘You have heard some arguments

that the police investigation was inadequate and that the police involved in

this case were incompetent. The issue for you to decide is not the thoroughness of the investigation or the competence of the police. The only issue

you have to determine is whether the state, in light of all the evidence before

you, has proved beyond a reasonable doubt the defendant is guilty of the

count[s] with which (he/she) is charged.’’ See State v. Gomes, supra, 337

Conn. 834 n.7.

The commentary to instruction 2.6-14 provided: ‘‘ ‘A defendant may . . .

rely upon relevant deficiencies or lapses in the police investigation to raise

the specter of reasonable doubt, and the trial court violates his right to a

fair trial by precluding the jury from considering evidence to that effect.’

State v. Collins, [supra, 299 Conn. 599–600] (finding that such an instruction

as this does not preclude the jury from considering the evidence of the

police investigation as it might relate to any weaknesses in the state’s case).

‘Collins does not require a court to instruct the jury on the quality of police

investigation, but merely holds that a court may not preclude such evidence

and argument from being presented to the jury for its consideration.’ State
v. Wright, 149 Conn. App. 758, 773–74, [89 A.3d 458] cert. denied, 312 Conn.

917 [94 A.3d 641] (2014).’’ See State v. Gomes, supra, 337 Conn. 834–35 n.7.

6 This instruction was subsequently approved by the Judicial Branch’s

Criminal Jury Instruction Committee as 2.6-14, titled ‘‘Adequacy of Police

Investigation.’’ Connecticut Criminal Jury Instructions 2.6-14, available at

https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited January 19,

2022).

7

In Gomes, the court made clear that ‘‘[t]he language used in the model

jury instructions, although instructive in considering the adequacy of a jury

instruction . . . is not binding on this court. . . . [W]e previously have

cautioned that the . . . jury instructions found on the Judicial Branch website are intended as a guide only, and that their publication is no guarantee

of their adequacy.’’ (Citation omitted; internal quotation marks omitted.)

State v. Gomes, supra, 337 Conn. 853 n.19.

8 Although our conclusion in part I of this opinion is dispositive of the

present appeal, we address the defendant’s claim that the trial court improperly admitted the police disciplinary report because it has been raised and

fully briefed, and it is likely to arise on remand. See, e.g., State v. Chyung,

325 Conn. 236, 260 n.21, 157 A.3d 628 (2017) (addressing claim that court

abused its discretion in admitting evidence of uncharged misconduct

because issue was likely to arise on remand).

9 General Statutes § 52-180 (a) 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.’’