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*********************************************** 
STATE OF CONNECTICUT v. HIRAL M. PATEL

(SC 20446)

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

Mullins, Kahn and Ecker, Js.

Syllabus

Convicted of various crimes, including murder, in connection with a home

invasion, the defendant appealed, claiming, inter alia, that the trial court

had improperly admitted into evidence a dual inculpatory statement

made by a codefendant, C, to E, a fellow prison inmate. The defendant’s

cousin, N, had included the defendant and C in N’s plan to rob the

victim, with whom N had previously engaged in drug transactions. N

drove the defendant and C to the area of the victim’s home, which the

defendant and C eventually entered. After encountering the victim, C

shot and killed him. While in custody on an unrelated charge, C recounted

the events of the home invasion, including the defendant’s role, to E,

who surreptitiously recorded the conversation. At trial, the recording

of C’s conversation with E was admitted as a statement against penal

interest under the applicable provision (§ 8-6 (4)) of the Connecticut

Code of Evidence. In addition, defense counsel, in order to advance a

theory of third-party culpability, sought to have the defendant’s sister,

M, testify about a purported confession that P, N’s cousin, made to M.

The trial court excluded M’s testimony regarding P’s confession on the

ground that it was not sufficiently trustworthy. The Appellate Court

affirmed the judgment of conviction, and the defendant, on the granting

of certification, appealed to this court. Held:

1. The Appellate Court correctly concluded that the trial court had not

abused its discretion in admitting into evidence C’s dual inculpatory

statement to E:

a. The admission of C’s statement did not violate the defendant’s right

to confrontation under the United States constitution: in Crawford v.

United States (541 U.S. 36), the United States Supreme Court indicated

that statements of a defendant’s coconspirator to a fellow inmate inculpating the defendant are nontestimonial, and, subsequently, federal and

state courts have consistently rejected claims that the admission of

statements between inmates or between an inmate and an informant

that inculpate a defendant violate the defendant’s right to confrontation;

moreover, in determining whether the admission of such statements

implicates a defendant’s right to confrontation, courts have undertaken

an objective analysis of the circumstances surrounding the making of

the statements and the encounter during which they were made in order

to assess the primary purpose and degree of formality of that encounter;

in the present case, C’s statement to E was elicited under circumstances

in which the objectively manifested purpose of the encounter was not

to secure testimony for trial, as C made his statement in an informal

setting, namely, his prison cell, to his cellmate, E, who questioned C in

a sufficiently casual manner to avoid alerting C that C’s statement was

going to be relayed to law enforcement.

b. The admission of C’s statement did not violate the defendant’s confrontation rights under article first, § 8, of the Connecticut constitution:

although the defendant urged this court to depart from the federal standard and to hold, under the state constitution, that a statement qualifies

as testimonial if the reasonable expectation of either the declarant or

the interrogator/listener is to prove past events potentially relevant to

a later criminal prosecution, this court was not convinced that the defendant established the necessary predicates for departing from the federal

standard, as an analysis under the six factors set forth in State v. Geisler

(222 Conn. 672) did not support a more protective interpretation under

the state constitution; moreover, although this court noted that it might

be compelled to reach a different result under a slight variation of the

facts, in the present case, the court had a fair assurance that government

officials did not influence the content or the making of C’s statement,

as there was no evidence to suggest any involvement by the state’s

attorney’s office in orchestrating the inquiry or that the police coached
E on what questions to ask or what facts they were seeking to learn,

and, because the conversation between C and E was recorded, the trial

court could ascertain the extent to which, if any, C’s answers may have

been shaped or coerced by E.

c. The trial court did not abuse its discretion in admitting C’s statement

under § 8-6 (4) of the Connecticut Code of Evidence as a statement

against penal interest: although the fact that the statement was made

thirteen months after the commission of the crimes weighed against its

admission, and although E and C, who were fellow inmates for only a

short period of time, did not share the type of relationship that would

support the statement’s trustworthiness, C’s account of the home invasion was consistent with the physical evidence in almost all material

respects, the statement was clearly against C’s penal interest, as he cast

himself as the principal actor in the commission of the crimes, and

C’s statement and the circumstances surrounding the making of that

statement had none of the characteristics that historically has caused

courts to view dual inculpatory statements as presumptively unreliable

when offered to prove the guilt of a declarant’s accomplice.

2. The Appellate Court correctly concluded that the trial court had properly

excluded P’s confession to M, which the defendant attempted to offer

through M’s testimony as a statement against penal interest under § 8-

6 (4): the trial court reasonably concluded that P’s purported confession,

in which he admitted that it was he, and not the defendant, who accompanied C into the victim’s home, was not sufficiently trustworthy to be

admitted as a statement against penal interest, as much of the evidence

that the defendant characterized as corroborative indicated only that P

may have played some role in connection with the home invasion, not

that P had been present in the victim’s home; moreover, P’s confession

was made more than one year after the incident, and M claimed to have

told no one except the defendant about P’s confession for more than

three and one-half years after P made the confession, delays that provided M with the opportunity to learn of the details of the prosecution’s

theory of the case.

Argued February 22, 2021—officially released March 22, 2022

Procedural History

Substitute information charging the defendant with

the crimes of felony murder, murder, home invasion,

burglary in the first degree as an accessory, robbery in

the first degree as an accessory, conspiracy to commit

robbery in the first degree, conspiracy to commit burglary in the first degree, and tampering with physical

evidence, brought to the Superior Court in the judicial

district of Litchfield and tried to the jury before Danaher,

J.; thereafter, the court denied the defendant’s motions

to preclude certain evidence; verdict of guilty; subsequently, the court, Danaher, J., granted the defendant’s

motion to vacate the verdict as to the charge of felony

murder and vacated the verdict as to the charge of

conspiracy to commit robbery in the first degree; judgment of guilty of murder, home invasion, burglary in the

first degree as an accessory, robbery in the first degree

as an accessory, conspiracy to commit burglary in the

first degree, and tampering with physical evidence, from

which the defendant appealed to this court; subsequently, the case was transferred to the Appellate Court,

Alvord, Bright and Bear, Js., which affirmed the trial

court’s judgment, and the defendant, on the granting of

certification, appealed to this court. Affirmed.

Richard Emanuel, for the appellant (defendant).

Matthew A. Weiner, assistant state’s attorney, with

whom, on the brief, was Dawn Gallo, state’s attorney,
for the appellee (state).
Opinion

KAHN, J. Following a jury trial, the defendant, Hiral

M. Patel, was convicted of murder in violation of General Statutes § 53a-54a, home invasion in violation of

General Statutes § 53a-100aa (a) (1), burglary in the

first degree as an accessory in violation of General

Statutes §§ 53a-101 (a) (1) and 53a-8 (a), robbery in the

first degree as an accessory in violation of General

Statutes §§ 53a-134 (a) (2) and 53a-8 (a), conspiracy to

commit burglary in the first degree in violation of § 53a101 (a) (1) and General Statutes § 53a-48, and tampering

with physical evidence in violation of General Statutes

(Rev. to 2011) § 53a-155 (a) (1).1 The Appellate Court

affirmed the judgment of conviction; State v. Patel, 194

Conn. App. 245, 250, 301, 221 A.3d 45 (2019); and we

thereafter granted the defendant’s petition for certification to appeal. See State v. Patel, 334 Conn. 921, 223 A.3d

60 (2020). The defendant’s principal challenge relates to

the admission into evidence of a codefendant’s recorded

dual inculpatory statement2

to a fellow inmate acting

at the behest of the state police. The defendant contends

that the Appellate Court incorrectly concluded that the

statement was nontestimonial and, therefore, did not

implicate the defendant’s confrontation rights under

either the United States constitution or the Connecticut

constitution, and that the trial court properly admitted

it under the hearsay exception for statements against

penal interest. We disagree with the defendant’s claims

and affirm the Appellate Court’s judgment.

The Appellate Court’s decision sets forth the following facts that the jury reasonably could have found.

‘‘On June 12, 2012, [the] police arrested Niraj Patel

(Niraj), the defendant’s cousin, after a motor vehicle

stop . . . . [Niraj] was charged with criminal attempt

to possess more than four ounces of marijuana, interfering with an officer, tampering with evidence, possession

of drug paraphernalia, and motor vehicle charges. Following his arrest, Niraj unsuccessfully attempted to borrow money . . . to pay his attorney.

‘‘Niraj thereafter formed a plan to rob Luke Vitalis,

a marijuana dealer with whom Niraj had conducted

drug transactions. Vitalis lived with his mother, Rita G.

Vitalis . . . in Sharon. [Niraj offered money to Michael

Calabrese, a friend, and the defendant to perform the

robbery.]

‘‘Niraj knew that Vitalis had sold ten pounds of marijuana from his home on August 5, 2012, and set up a

transaction with Vitalis for the following day, with the

intention of robbing Vitalis of his proceeds of the previous sale. On August 6, 2012, Niraj drove Calabrese and

the defendant to the area of Vitalis’ home and dropped

them off down the road. Calabrese and the defendant

ran through the woods to Vitalis’ home. They watched

the home and saw Vitalis’ mother come home. At
approximately 6 p.m., Calabrese and the defendant,

wearing masks, bandanas, black hats, and gloves,

entered the home, encountered Vitalis’ mother, and

restrained her using zip ties. Calabrese, armed with a

Ruger handgun that he received from Niraj, went

upstairs and encountered Vitalis in his bedroom. He

struck Vitalis with the handgun and shot him three

times, killing him. Calabrese searched the bedroom but

could find only Vitalis’ wallet with $70 and approximately one-half ounce of marijuana, both of which he

took. Calabrese and the defendant ran from the property into the woods, where the defendant lost his cell

phone. Calabrese and the defendant eventually met up

with Niraj, who was driving around looking for them.

Calabrese burned his clothing and sneakers on the side

of Wolfe Road in Warren.

‘‘After freeing herself, Vitalis’ mother called 911. State

police . . . arrived at the scene at approximately 6:14

p.m. and found Vitalis deceased. Some of the drawers

in the furniture in Vitalis’ bedroom were pulled out.

The police searched the bedroom and found $32,150

. . . 1.7 pounds of marijuana . . . and evidence of

marijuana sales.’’ (Footnote omitted.) State v. Patel,

supra, 194 Conn. App. 250–51.

The record reveals the following additional undisputed facts and procedural history. While the police

were investigating the Sharon home invasion, Calabrese

was arrested and detained on an unrelated charge.

While in custody, Calabrese recounted the events that

had occurred during the home invasion, including the

defendant’s role, to a jailhouse informant who was surreptitiously recording the conversation. At trial, the

state established that Calabrese had invoked his fifth

amendment privilege not to testify and introduced, over

defense counsel’s objection, the recording of Calabrese’s dual inculpatory statement as a statement

against penal interest under § 8-6 (4) of the Connecticut

Code of Evidence. The state also introduced cell phone

site location information, testimony from Calabrese’s

former girlfriend, and other evidence that tended to

corroborate the defendant’s presence at, and involvement in, the Sharon home invasion, as well as evidence

establishing that friends and family of the defendant

had been unable to make contact with the defendant

immediately before, during, and after the period during

which the Sharon home invasion occurred. See id., 251–

52, 262, 284–89.

The defense advanced theories of alibi and thirdparty culpability. The defendant’s older sister, Salony

Majmudar, testified that the defendant was visiting her

in Boston, Massachusetts, to celebrate an important

Hindu holiday when the Sharon home invasion occurred.3

Defense counsel also sought to have Majmudar testify

about a purported confession that had been made to

her by Niraj’s brother, Shyam Patel (Shyam), in which
Shyam admitted that it was he, and not the defendant,

who had accompanied Calabrese to Vitalis’ home. Defense

counsel offered Shyam’s statement as a statement

against penal interest under § 8-6 (4) of the Connecticut

Code of Evidence. The trial court sustained the prosecutor’s objection to the admission of the statement, ruling

that the statement was insufficiently trustworthy to satisfy § 8-6 (4).

The jury returned a verdict, finding the defendant

guilty of murder, home invasion, burglary in the first

degree as an accessory, robbery in the first degree as

an accessory, conspiracy to commit burglary in the first

degree, and tampering with physical evidence, among

other charges, and the trial court thereafter rendered

judgment in accordance with the jury’s verdict. See

footnote 1 of this opinion. The court imposed a total

effective sentence of forty-five years of imprisonment,

execution suspended after thirty-five years and one day,

and five years of probation.

The defendant appealed from the judgment of conviction, claiming that constitutional and evidentiary errors

entitled him to a new trial. See id., 249–50. The Appellate

Court affirmed the judgment of conviction. Id., 250,

301. We thereafter granted the defendant’s petition for

certification to appeal, limited to the following issues:

(1) whether the Appellate Court correctly concluded

that the admission of Calabrese’s dual inculpatory statement (a) did not violate the defendant’s confrontation

rights under the United States constitution, (b) did not

violate the defendant’s confrontation rights under the

Connecticut constitution, and (c) was proper under our

code of evidence as a statement against penal interest;

and (2) whether the Appellate Court correctly concluded that the trial court had properly excluded Shyam’s confession. See State v. Patel, supra, 334 Conn.

921 n.22. The defendant’s constitutional claims are subject to plenary review; see, e.g., State v. Smith, 289

Conn. 598, 618–19, 960 A.2d 993 (2008); whereas his

evidentiary claims, which challenge the application,

rather than the interpretation, of our code of evidence,

are reviewed for an abuse of discretion. See, e.g., State

v. Pierre, 277 Conn. 42, 68, 890 A.2d 474, cert. denied,

547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006);

see also State v. Saucier, 283 Conn. 207, 218–21, 926

A.2d 633 (2007) (contrasting standards of review).

I

The defendant challenges the admission of Calabrese’s dual inculpatory statement on both constitutional and evidentiary grounds. We agree with the

Appellate Court that the trial court properly admitted

this statement.

The following additional undisputed facts provide

context for our resolution of this issue. Calabrese was

arrested on August 29, 2013, on drug charges unrelated
to the August 6, 2012 Sharon home invasion. He was

initially held in custody at the same correctional facility

where Wayne Early was being held following his convictions of attempted burglary in the first degree with a

deadly weapon and criminal possession of a firearm.

On September 3, 2013, Early was summoned to the

facility’s intelligence office. Department of Correction

officials there informed Early that Calabrese, whom

Early did not know, was going to be moved into Early’s

cell and asked Early whether he would be willing to

wear a recording device. Early previously had made

confidential recordings of other cellmates. Early said

that he would be willing to record Calabrese, if Calabrese seemed inclined to talk. Late that evening, Calabrese was moved into Early’s cell. The two men shared

information about the charges for which they were in

custody. Early disclosed that he had originally been

charged with home invasion, but that charge later was

reduced to burglary. Calabrese responded that the

police were ‘‘looking’’ at him for the same type of incident and began to talk about the Sharon home invasion.4

Early changed the subject because he was not yet wearing the recording device.

The following day, Early was brought back to the

corrections intelligence office. Early confirmed that he

was willing to record Calabrese. A corrections official

then placed a call to a state police official, who spoke

with Early to establish that he had no knowledge about

the incident of interest5 and directed Early to get details

about it if he could. When Early returned to his cell,

equipped with a hidden recording device, he gradually

turned the conversation to the subject of the home

invasion that Calabrese had mentioned the prior night,

telling Calabrese that he ‘‘want[ed] to hear how that

shit went down . . . .’’ Calabrese volunteered many

details, including the fact that the defendant participated, but Early repeatedly asked questions to obtain

further details or clarification about the incident.

Calabrese’s account ascribed the following actions

and intentions to the participants. He and the defendant

went to Sharon with the intention of robbing a drug

dealer (Vitalis). Calabrese entered Vitalis’ home first,

because he was the only one with a gun. After they

entered and saw Vitalis’ mother, Calabrese grabbed her

and started to tie her hands. Calabrese directed the

defendant to finish the task and to watch her while

Calabrese confronted Vitalis upstairs. Calabrese did not

plan to shoot Vitalis but did so after Vitalis threatened

him with a knife and tried to grab the gun. The defendant

fled when he heard the gunshots, allowing Vitalis’

mother to make her way to a phone and to call the

police. Calabrese’s search yielded only $70 and a small

amount of marijuana before he had to flee. Calabrese

was able to catch up with the defendant because the

defendant had stopped to look for his cell phone, which

he had dropped while running through a swampy area
in the woods and was unable to recover. Niraj, who

had planned the robbery, eventually found them and

gave Calabrese a change of clothes. Calabrese set fire

to his blood soaked clothes and shoes in a wooded

area, because he had left a footprint in a pool of Vitalis’

blood at the crime scene.

At trial, the state offered the recording of Calabrese’s

dual inculpatory statement into evidence for its truth;

therefore, it indisputably is hearsay. See Conn. Code

Evid. § 8-1 (3). Because Calabrese’s invocation of his

fifth amendment privilege not to testify deprived the

defendant of an opportunity to cross-examine Calabrese about that statement, his statement is admissible

only if it avoids the constitutional hurdle imposed by

the confrontation clauses of the federal and state constitutions; see U.S. Const., amends. VI and XIV, §1; Conn.

Const., art. I, § 8; and the evidentiary hurdle of hearsay rules.6

A

The parties disagree as to whether the United States

Supreme Court has in fact settled the issue of whether

the admission of a hearsay statement to a jailhouse

informant inculpating the declarant and a codefendant

violates the codefendant’s rights under the confrontation clause of the sixth amendment to the United States

constitution. The defendant contends that the court

answered that question in the negative only in dicta,

under distinguishing circumstances, and that subsequent decisions that have expanded the framework of

this inquiry by recognizing that the identity and actions

of the questioner must be considered. The defendant

argues that he prevails under the current framework

because Early, acting as an agent of law enforcement,

effectively interrogated Calabrese for the primary purpose of obtaining testimony to be used in a criminal

prosecution.

There can be no doubt that the court’s confrontation

clause jurisprudence has vexed courts as applied to

particular circumstances, a point we elaborate on in

part I B of this opinion. The present case, however, is

one in which we have confidence as to how the court

would resolve the issue presented, namely, in favor of

the state. The federal constitutional issue, therefore, is

our starting point. See State v. Purcell, 331 Conn. 318,

334 n.11, 203 A.3d 542 (2019) (noting that we address

federal constitution first when ‘‘we can predict to a

reasonable degree of certainty how the United States

Supreme Court would resolve the issue’’); see also State

v. Taupier, 330 Conn. 149, 166 n.14, 193 A.3d 1 (2018)

(concluding that it was more efficient to address federal

claim first because review of federal precedent would

be necessary under state constitutional framework in

State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225

(1992)), cert. denied, U.S. , 139 S. Ct. 1188, 203

L. Ed. 2d 202 (2019).
The sixth amendment’s confrontation clause, which

is binding on the states through the due process clause

of the fourteenth amendment; Pointer v. Texas, 380

U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965);

provides in relevant part: ‘‘In all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted

with the witnesses against him . . . .’’ U.S. Const.,

amend. VI. Although an ‘‘essential purpose of confrontation is to secure for the opponent the opportunity of

cross-examination’’; (emphasis omitted; internal quotation marks omitted) Davis v. Alaska, 415 U.S. 308, 315–

16, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); this clause

has never been interpreted to require the opportunity

to cross-examine every hearsay declarant. See, e.g.,

Idaho v. Wright, 497 U.S. 805, 813–14, 110 S. Ct. 3139,

111 L. Ed. 2d 638 (1990); see also Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d

177 (2004).

In prior cases, we have chronicled the development

of the court’s confrontation case law, including its sea

change from a focus on whether the hearsay statement

bore adequate ‘‘indicia of reliability’’; (internal quotation marks omitted) Ohio v. Roberts, 448 U.S. 56, 66,

100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); to a focus on

whether the statement is ‘‘[t]estimonial’’ in nature under

Crawford v. Washington, supra, 541 U.S. 59, and its

progeny. See generally State v. Rodriguez, 337 Conn.

175, 226–27, 252 A.3d 811 (2020) (Kahn, J., concurring).7

Although the court has ‘‘labored to flesh out what it

means for a statement to be ‘testimonial’ ’’; Ohio v.

Clark, 576 U.S. 237, 244, 135 S. Ct. 2173, 192 L. Ed. 2d

306 (2015); it has deemed the term to include not only

ex parte in-court testimony and formalized testimonial

materials such as affidavits and depositions but also

‘‘[p]olice interrogations . . . .’’ Crawford v. Washington, supra, 51–53. The court used that term in its colloquial, rather than its strictly legal, sense to include a

‘‘recorded statement, knowingly given in response to

structured police questioning . . . .’’ Id., 53 n.4. Such

statements ‘‘are testimonial when the circumstances

objectively indicate that . . . the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later criminal prosecution.’’ (Internal

quotation marks omitted.) Ohio v. Clark, supra, 244,

quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.

Ct. 2266, 165 L. Ed. 2d 224 (2006).

In dicta in Crawford and Davis, the court indicated

that statements of a coconspirator to a fellow inmate

and to an undercover agent inculpating the defendant

were clearly nontestimonial. The court asserted that its

newly adopted testimonial rubric would not alter the

results reached in its prior cases. See Davis v. Washington, supra, 547 U.S. 825–26; Crawford v. Washington,

supra, 541 U.S. 58. Two of the cases cited by the court

as examples were Dutton v. Evans, 400 U.S. 74, 77–78,
91 S. Ct. 210, 27 L. Ed. 2d 213 (1970) (plurality opinion),

and Bourjaily v. United States, 483 U.S. 171, 174, 107

S. Ct. 2775, 97 L. Ed. 2d 144 (1987), in which the declarants were unavailable for cross-examination. See Davis

v. Washington, supra, 825; Crawford v. Washington,

supra, 57–58. In Dutton, the court had held that the

admission of a statement of the defendant’s coconspirator to a cellmate, implicating the defendant in a triple

homicide, did not violate the defendant’s confrontation

rights. See Dutton v. Evans, supra, 87–89. In Bourjaily,

the court had held that the admission of a recorded

telephone conversation between the defendant’s coconspirator and an FBI informant, in which the coconspirator implicated the defendant in a drug selling enterprise,

did not violate the defendant’s confrontation rights. See

Bourjaily v. United States, supra, 173–74, 183–84.

Post-Crawford, federal courts and state courts have

consistently rejected claims that the admission of inmate

to inmate or inmate to informant statements inculpating

a defendant, whether recorded or not, violated his or

her confrontation rights. See, e.g., United States v. Veloz,

948 F.3d 418, 430–32 (1st Cir.), cert. denied, U.S.

, 141 S. Ct. 438, 208 L. Ed. 2d 133 (2020); United

States v. Dargan, 738 F.3d 643, 650–51 (4th Cir. 2013);

United States v. Dale, 614 F.3d 942, 954–56 (8th Cir.

2010), cert. denied, 563 U.S. 918, 131 S. Ct. 1814, 179

L. Ed. 2d 774 (2011), and cert. denied sub nom. Johnson

v. United States, 563 U.S. 919, 131 S. Ct. 1814, 179 L.

Ed. 2d 775 (2011); United States v. Smalls, 605 F.3d

765, 778 (10th Cir. 2010); People v. Arauz, 210 Cal. App.

4th 1394, 1402, 149 Cal. Rptr. 3d 211 (2012); State v.

Nieves, 376 Wis. 2d 300, 326–27, 897 N.W.2d 363 (2017).

Courts also have routinely held that statements made

unwittingly to a government agent or an undercover

officer, outside of the prison context, are nontestimonial.8 See, e.g., Brown v. Epps, 686 F.3d 281, 287 and n.35

(5th Cir. 2012) (citing cases reaching this conclusion).

Although some of these cases simply relied on the

United States Supreme Court’s dicta; see, e.g., United

States v. Veloz, supra, 431–32; United States v. Saget,

377 F.3d 223, 229 (2d Cir. 2004), cert. denied, 543 U.S.

1079, 125 S. Ct. 938, 160 L. Ed. 2d 821 (2005); many

others reasoned that such statements could not have

been given for the purpose of proving past facts relevant

to a prosecution because the declarant did not know

that he was speaking to an informant or an undercover

officer. See, e.g., United States v. Dargan, supra, 646,

650–51; State v. Nieves, supra, 326–27.

The defendant contends, however, that the court’s

more recent confrontation clause jurisprudence suggests that the court would now reject this dicta. Our

review of this case law confirms, rather than undermines, the vitality of this dicta.

‘‘Crawford and Davis did not address whose perspective matters—the declarant’s, the interrogator’s, or
both—when assessing the primary purpose of [an] interrogation.’’ (Internal quotation marks omitted.) Michigan v. Bryant, 562 U.S. 344, 381, 131 S. Ct. 1143, 179

L. Ed. 2d 93 (2011) (Scalia, J., dissenting). More recent

cases have interpreted Davis to require consideration

of ‘‘the statements and actions of the parties to the

encounter, in light of the circumstances in which the

interrogation occurs.’’ Id., 370; see also Ohio v. Clark,

supra, 576 U.S. 246–47 (considering identity of participants as well). A consistent theme echoed in the case

law, however, is that this consideration is one based

on objective facts. See Davis v. Washington, supra, 547

U.S. 826 (‘‘[t]he question before us in Davis . . . is

whether, objectively considered, the interrogation that

took place in the course of the 911 call produced testimonial statements’’); Crawford v. Washington, supra,

541 U.S. 52 (testimonial statements would include those

‘‘that 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)).

This point was underscored and elaborated on in

Michigan v. Bryant, supra, 562 U.S. 344, when the court

stated: ‘‘The Michigan Supreme Court correctly understood that this inquiry is objective. . . . Davis uses the

word ‘objective’ or ‘objectively’ no fewer than eight

times in describing the relevant inquiry. . . . ‘Objectively’

also appears in the definitions of both testimonial and

nontestimonial statements that Davis established.

. . .

‘‘An objective analysis of the circumstances of an

encounter and the statements and actions of the parties

to it provides the most accurate assessment of the ‘primary purpose of the interrogation.’ The circumstances

in which an encounter occurs—e.g., at or near the scene

of the crime versus at a police station, during an ongoing

emergency or afterwards—are clearly matters of objective fact. The statements and actions of the parties

must also be objectively evaluated. That is, the relevant

inquiry is not the subjective or actual purpose of the

individuals involved in a particular encounter, but

rather the purpose that reasonable participants would

have had, as ascertained from the individuals’ statements and actions and the circumstances in which

the encounter occurred.’’ (Citations omitted; emphasis

added; footnote omitted.) Id., 360.

The court’s most recent confrontation clause case

exemplifies this objective, totality of circumstances

approach, as well as the significance of the formality

of the encounter in making that determination. See Ohio

v. Clark, supra, 576 U.S. 237. In Clark, the court considered the statements of a three year old child, in response

to his teachers’ questions, in which he identified his

mother’s boyfriend as the perpetrator of injuries discovered by the teachers. Id., 240. The teachers were man-
dated by state law to report suspected abuse to government authorities. Id., 242. These facts required the court

to squarely address for the first time the question of

whether statements made to individuals who are not

law enforcement officers implicate confrontation rights.

Id., 246.

The court first summarized its confrontation clause

jurisprudence, noting that the primary purpose test has

evolved to require consideration of ‘‘all of the relevant

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

244. One such circumstance it identified ‘‘is the informality of the situation and the interrogation. . . . A

formal [station house] interrogation, like the questioning in Crawford, is more likely to provoke testimonial statements, while less formal questioning is less

likely to reflect a primary purpose aimed at obtaining

testimonial evidence against the accused.’’ (Citation

omitted; internal quotation marks omitted.) Id., 245.

The court in Clark recognized that statements to individuals who are not law enforcement officers ‘‘could

conceivably raise confrontation concerns’’; id., 246; but

cautioned that ‘‘[s]tatements made to someone who is

not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be

testimonial than statements given to law enforcement

officers.’’ Id., 249. Thus, the fact that the child was speaking to his teachers ‘‘remains highly relevant. Courts must

evaluate challenged statements in context, and part of

that context is the questioner’s identity.’’ Id., 249; see also

id. (‘‘the relationship between a student and his teacher

is very different from that between a citizen and the

police’’).

In concluding that the primary purpose of the encounter was not to gather evidence for the defendant’s prosecution but to protect the child, the court in Clark

pointed to the following facts: ‘‘At no point did the

teachers inform [the child] that his answers would be

used to arrest or punish his abuser. [The child] never

hinted that he intended his statements to be used by

the police or prosecutors.9And the conversation between

[the child] and his teachers was informal and spontaneous. The teachers asked [the child] about his injuries

immediately upon discovering them, in the informal

setting of a preschool lunchroom and classroom, and

they did so precisely as any concerned citizen would

talk to a child who might be the victim of abuse. This

was nothing like the formalized [station house] questioning in Crawford or the police interrogation and

battery affidavit in Hammon [v. Indiana, which was

decided together with Davis v. Washington, supra, 547

U.S. 813].’’10 (Footnote added.) Id., 247.

Consistent with Bryant, the court in Clark thus relied

exclusively on the objectively manifested facts—what

was said, who said it, how it was said, and where it

was said. Nothing indicates that, contrary to Bryant,
the hidden intentions or identity of the person eliciting

the statement would be relevant, let alone dispositive.11

See United States v. Volpendesto, 746 F.3d 273, 289–90

(7th Cir.) (‘‘Bryant mandates that we not evaluate the

purpose of [the] recorded conversation from the subjective point of view of [the coconspirator], who knew he

was secretly collecting evidence for the government.

Instead, we evaluate their conversation objectively. And

from an objective perspective, [the recorded] conversation looks like a casual, confidential discussion between

[coconspirators].’’), cert. denied sub nom. Sarno v.

United States, 574 U.S. 936, 135 S. Ct. 382, 190 L. Ed.

2d 256 (2014), and cert. denied sub nom. Polchan v.

United States, 574 U.S. 936, 135 S. Ct. 383, 190 L. Ed.

2d 256 (2014). Clark also underscores the significance

of the formality surrounding the questioning, which

imparts to the declarant a solemnity of purpose akin

to other forms of testimonial statements, such as ex

parte testimony, affidavits, and grand jury testimony.

See Ohio v. Clark, supra, 576 U.S. 243 (‘‘[i]n Crawford

. . . [w]e explained that ‘witnesses,’ under the [c]onfrontation [c]lause, are those ‘who bear testimony,’ and

we defined ‘testimony’ as ‘a solemn declaration or affirmation made for the purpose of establishing or proving

some fact’ ’’ (citation omitted)); see also State v. Sinclair, 332 Conn. 204, 225, 210 A.3d 509 (2019) (‘‘there

is agreement among all of the justices that the formality

attendant to the making of the statement must be considered’’).

The court’s reasoning in Bryant and Clark thus confirms the court’s dicta characterizing the statements in

Dutton and Bourjaily made to persons who harbored

secret intentions to obtain evidence to be used at trial

as clearly nontestimonial.12 Like the statements in Dutton and Bourjaily, Calabrese’s statement was elicited in

circumstances under which the objectively manifested

purpose of the encounter was not to secure testimony

for trial. Calabrese made his statements in an informal

setting, his prison cell, to his cellmate, who undoubtedly

actively questioned the defendant but did so in an evidently sufficiently casual manner to avoid alerting Calabrese that his statement was going to be relayed to law

enforcement. Cf. United States v. Dargan, supra, 738

F.3d 650–51 (statements by defendant’s coconspirator

to cellmate were clearly nontestimonial because they

were made ‘‘in an informal setting—a scenario far afield

from the type of declarations that represented the focus

of Crawford’s concern’’ and declarant ‘‘had no plausible

expectation of ‘bearing witness’ against anyone’’). The

admission of Calabrese’s dual inculpatory statement,

therefore, did not violate the defendant’s confrontation

rights under the federal constitution.

B

We next turn to the defendant’s confrontation clause

challenge under article first, § 8, of the Connecticut
constitution. The defendant asks this court to hold that,

under our state constitution, a statement qualifies as

‘‘testimonial’’ if the reasonable expectation of either the

declarant or the interrogator/listener is to establish

or to prove past events potentially relevant to a later

criminal prosecution. (Internal quotation marks omitted.) We are not persuaded that the defendant has established the necessary predicates for departing from the

federal standard. We do not, however, foreclose the

possibility of departing from the federal standard under

appropriate circumstances in a future case, and raise

a strong cautionary note about the present circumstances.

In State v. Geisler, supra, 222 Conn. 684–85, this court

identified factors to be considered to encourage a principled development of our state constitutional jurisprudence. Those six factors are (1) persuasive relevant

federal precedents, (2) the text of the operative constitutional provisions, (3) historical insights into the intent

of our constitutional forebears, (4) related Connecticut

precedents, (5) persuasive precedents of other state

courts, and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise

described, relevant public policies. Id., 685; accord Feehan v. Marcone, 331 Conn. 436, 449, 204 A.3d 666, cert.

denied, U.S. , 140 S. Ct. 144, 205 L. Ed. 2d 35

(2019).

The defendant concedes that the first, second, and

fifth factors do not support a more protective interpretation under state law. The text of the two clauses are

nearly identical. Compare Conn. Const., art. I, § 8 (guaranteeing defendant’s right ‘‘to be confronted by the

witnesses against him’’ (emphasis added)) with U.S.

Const., amend. VI (guaranteeing right ‘‘to be confronted

with the witnesses against him’’ (emphasis added)).

The federal and state precedent we have addressed in

part I A of this opinion does not support the defendant’s

proposed standard. To this we would add that we are

aware of only one state that has charted an independent

course under its state constitution’s confrontation

clause with regard to this issue.13 That state did not

adopt the defendant’s proposed standard; it never

adopted Crawford’s testimonial standard and continued to adhere to the ‘‘adequate indicia of reliability’’

standard recognized in Ohio v. Roberts, supra, 448 U.S.

66. See State v. Copeland, 353 Or. 816, 820–24, 306 P.3d

610 (2013).

With regard to the third and fourth factors, historical

insights and Connecticut precedent, the defendant

expressly conceded before the Appellate Court that

these factors also do not favor his position. This court’s

first confrontation clause case, in 1921, took the position that ‘‘[t]he underlying reasons for the adoption of

this right in the [f]ederal [c]onstitution and in [s]tate

[c]onstitutions, and the principles of interpretation
applying to this provision, are identical.’’ State v. Gaetano, 96 Conn. 306, 310, 114 A. 82 (1921). We recently

reiterated this position. See State v. Lockhart, 298 Conn.

537, 555, 4 A.3d 1176 (2010) (noting that federal and state

provisions are subject to same interpretation because

they have ‘‘shared genesis in the common law’’).14

The defendant does not expressly concede the third

and fourth Geisler factors to this court as he did before

the Appellate Court, but he acknowledges this case law

in his brief to this court. In lieu of an argument regarding

the significance of that case law, the defendant emphasizes the historical fact that third-party statements

against penal interest constituted inadmissible hearsay

at the time of the framing, as well as for an extended

period thereafter. See, e.g., Bruton v. United States,

391 U.S. 123, 128 n.3, 88 S. Ct. 1620, 20 L. Ed. 2d 476

(1968); State v. Schiappa, 248 Conn. 132, 147 and n.18,

728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152,

145 L. Ed. 2d 129 (1999). See generally E. Schaerer,

‘‘Proving the Constitution: Burdens of Proof and the

Confrontation Clause,’’ 55 U. Rich. L. Rev. 491, 494

(2021) (‘‘[a]t the framing, hearsay was more strictly

prohibited at trial, and courts recognized few hearsay

exceptions’’). This fact has no logical connection, however, to the defendant’s proposed confrontation standard.15 The defendant’s testimonial standard would not

categorically preclude such statements, whether they

were dual inculpatory statements or not; it would only

preclude such statements when the declarant is unavailable for cross-examination and the reasonable expectation of either the declarant or the listener is to establish

or to prove past events potentially relevant to a later

criminal prosecution. Reliance on the lack of a recognized exception for these statements at the time of the

framing is also in tension with the defendant’s representation that he does not seek to overrule Crawford,

which rejected the Roberts framework, which considered whether the statement fell within a ‘‘firmly rooted’’

hearsay exception. See Ohio v. Roberts, supra, 448 U.S.

66; see also State v. Nieves, supra, 376 Wis. 2d 316–19

(citing sources addressing admission of dual inculpatory statements post-Crawford and acknowledging that

Bruton16 doctrine regarding confrontation violation arising from admission of such statements as against third

party survives only as to testimonial statements).

The defendant’s state constitutional claim, thus,

effectively rests exclusively on the sixth Geisler factor,

public policy. He identifies the following considerations. First, the defendant argues that the United States

Supreme Court is not infallible. The sea change from

Roberts’ reliability standard to Crawford’s testimonial

standard demonstrates this reality, as does the fact that

the court’s confrontation clause case law continues to

be in flux. Second, the defendant seeks a modified interpretive standard—an additional layer of prophylaxis to

prevent a significant risk of deprivation of confrontation
rights—not the rejection of the court’s testimonial, primary purpose framework. The defendant argues that

this interpretation fills a gap in the court’s case law,

which has yet to clarify if a statement is testimonial

when the speaker is unaware that the statement may

be used as evidence in a criminal prosecution but the

listener seeks to obtain the statement for that purpose.

He contends that, by adopting a standard under which

the perspective of either the declarant or the listener

can render the statement testimonial, we would place

the emphasis where it belongs—on the testimonial

effect of the statement, i.e., the jury would believe that

the statement is equivalent to testimony and would rely

on it to assess guilt or innocence. Third, the defendant

argues that the adoption of the ‘‘either perspective’’

approach would serve the public interest by enhancing

the perception that our criminal trial proceedings are

fair.17 (Internal quotation marks omitted.)

We are not persuaded that these arguments are sufficient to carry the day under the present circumstances.

We previously have relied on policy considerations similar to those mentioned by the defendant but have always

cited to other Geisler factors that supported the rule

we adopted. See, e.g., State v. Purcell, supra, 331 Conn.

342–46 (explaining that we were adopting broader prophylactic rule not expanding constitutional right, but

also citing other Geisler factors that supported rule);

State v. Linares, 232 Conn. 345, 379–80, 655 A.2d 737

(1995) (concluding that United States Supreme Court’s

rationale for departing from prior, more protective standard was unsound but also citing other Geisler factors

that supported our rule). Although the need to fill a

‘‘gap’’ in the court’s confrontation jurisprudence to

resolve a case may provide a compelling policy argument, even in the absence of other supporting Geisler

factors, our discussion in part II explains why the gap

identified by the defendant does not exist. None of the

defendant’s other policy arguments rises to a similar

level of necessity. Some of his policy arguments, e.g.,

that the court does not always reach the correct result,

could apply in any case. In sum, it is clear that the

defendant cannot prevail under a traditional Geisler

analysis. His state constitutional claim under the confrontation clause, therefore, fails.18

We end this discussion, however, with a strong note

of caution. Although the defendant cannot prevail under

our state constitution in the present case, we might be

compelled to reach a different result under a slight

variation of facts. The circumstances under which Calabrese’s statement was elicited implicate several concerns identified by the court in Crawford and its progeny. Crawford recognized that ‘‘[i]nvolvement of government officers in the production of testimony with an eye

toward trial presents unique potential for prosecutorial

abuse . . . .’’ Crawford v. Washington, supra, 541 U.S.

56 n.7. The court in Davis also cautioned that law
enforcement officials should not be permitted to circumvent the confrontation clause by intentionally altering the method by which they collect the statement

to render the statement nontestimonial. See Davis v.

Washington, supra, 547 U.S. 826 (‘‘we do not think it

conceivable that the protections of the [c]onfrontation

[c]lause can readily be evaded by having a note-taking

policeman recite the unsworn hearsay testimony of the

declarant, instead of having the declarant sign a deposition’’ (emphasis omitted)); see also Williams v.Illinois,

567 U.S. 50, 133, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012)

(Kagan, J., dissenting) (noting that five justices reject

proposition that, ‘‘[i]f the [c]onfrontation [c]lause prevents the [s]tate from getting its evidence in through

the front door, then the [s]tate could sneak it in through

the back’’). Recruiting an inmate to elicit inculpatory

evidence regarding uncharged criminal activity from

another inmate suspected of committing such activity,

when law enforcement officials would be unable, or

were in fact unable, to obtain a confession directly,19

clearly raises the potential for abuse.20 Although such

circumstances do not meet the present legal definition

of an interrogation and, hence, do not implicate the

confrontation clause, we can envision facts under

which eliciting an inculpatory statement in this setting

might rise to the level of a violation of due process or

a circumstance under which it might be appropriate for

this court to consider the extraordinary measure of

reversal under the exercise of its supervisory authority.

Cf. Illinois v. Perkins, 496 U.S. 292, 302–303, 110 S. Ct.

2394, 110 L. Ed. 2d 243 (1990) (Brennan, J., concurring)

(expressing concern whether due process may be violated when undercover agent and jailhouse informant

‘‘lure [the] respondent into incriminating himself when

he was in jail on an unrelated charge,’’ noting that, under

such circumstances, state ‘‘can ensure that a suspect

is barraged with questions from an undercover agent

until the suspect confesses’’).

Our concerns are tempered in the present case, however, for a few reasons. There was no evidence presented suggesting any involvement by the Office of the

State’s Attorney in orchestrating the recording or directing the inquiry. Nor is there evidence that any police

official coached Early on what questions to ask or what

facts they were seeking to learn. The trial court did not

abuse its discretion by crediting Early’s testimony that

he was not given any information about the crime and

that Calabrese first raised the subject of his involvement

in the Sharon home invasion.21 Because the exchange

was recorded, the trial court was able to ascertain the

extent to which, if any, Calabrese’s answers may have

been shaped or coerced by Early. See M. Berger, ‘‘The

Deconstitutionalization of the Confrontation Clause: A

Proposal for a Prosecutorial Restraint Model,’’ 76 Minn.

L. Rev. 557, 609 (1992) (noting that recording coconspirators’ statements made to government agent or infor-
mant will ‘‘deter prosecutorial abuse and enhance jury’s

ability to function’’). Recording also eliminates concerns of fabrication by the informant. See id.; cf. State

v. Jones, 337 Conn. 486, 504, 254 A.3d 239 (2020) (noting

that special credibility instruction is required when jailhouse informant testifies because such testimony must

be reviewed with particular scrutiny in light of witness’

powerful motive to falsify his or her testimony). That

recording makes clear that Calabrese volunteered most

of the inculpatory information with no prompting. We

therefore have a fair assurance that the involvement of

government officials did not influence the content or

the making of the statement.

C

Because we have concluded that the admission of

Calabrese’s dual inculpatory statement did not violate

the defendant’s federal or state confrontation rights,

the admissibility of the statement is, therefore, limited

only by the rules of evidence. See, e.g., Ohio v. Clark,

supra, 576 U.S. 245. Calabrese’s statement was admitted

under the hearsay exception for statements against

penal interest. See Conn. Code Evid. § 8-6 (4). ‘‘We

evaluate dual inculpatory statements using the same

criteria that we use for statements against penal interest.’’ State v. Camacho, 282 Conn. 328, 359, 924 A.2d

99, cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L.

Ed. 2d 273 (2007). We conclude that the trial court’s

admission of Calabrese’s statement under § 8-6 (4) was

not an abuse of discretion.

Admission of a hearsay statement pursuant to § 8-6

(4) of the Connecticut Code of Evidence ‘‘is subject to

a binary inquiry: (1) whether [the] statement . . . was

against [the declarant’s] penal interest and, if so, (2)

whether the statement was sufficiently trustworthy.’’

(Internal quotation marks omitted.) State v. Bonds, 172

Conn. App. 108, 117, 158 A.3d 826, cert. denied, 326

Conn. 907, 163 A.3d 1206 (2017); see also State v. Pierre,

supra, 277 Conn. 67. Only the second part of that inquiry

is at issue in this appeal.

Our code of evidence directs trial courts to consider

the following factors in assessing the trustworthiness

of the statement: ‘‘(A) the time the statement was made

and the person to whom the statement was made, (B)

the existence of corroborating evidence in the case,

and (C) the extent to which the statement was against

the declarant’s penal interest.’’ Conn. Code Evid. § 8-6

(4). ‘‘[N]o single factor . . . is necessarily conclusive

. . . . Thus, it is not necessary that the trial court find

that all of the factors support the trustworthiness of the

statement. The trial court should consider all of the factors and determine whether the totality of the circumstances supports the trustworthiness of the statement.’’

(Citations omitted; internal quotation marks omitted.)

State v. Lopez, 254 Conn. 309, 316, 757 A.2d 542 (2000).
The trial court concluded that the length of the delay

between the crimes and the making of the statement,

thirteen months, weighed against its trustworthiness

but that all of the other factors strongly weighed in

favor of admission. The state concedes that the timing

of the statement weighs against admission. See, e.g.,

State v. Pierre, supra, 277 Conn. 70 (‘‘[i]n general, declarations made soon after the crime suggest more reliability than those made after a lapse of time [when] a

declarant has a more ample opportunity for reflection

and contrivance’’ (internal quotation marks omitted)).

We therefore focus on the remaining factors. We disagree with the trial court’s treatment of one of the

factors but conclude that it ultimately did not abuse its

discretion in admitting the statement.

The trial court suggested that the fact that the statement was made ‘‘to a fellow inmate who appeared to

the defendant [to] be a fellow gang member, and one

who was facing serious charges,’’ rendered the statement more trustworthy. The record does not support

a factual predicate for this conclusion, and the law does

not support its reasoning. Calabrese was not a fellow

gang member.22 He unambiguously informed Early that

he was not a ‘‘blood,’’ although ‘‘all [his] boys’’ belonged

to the gang, and he did not join because he ‘‘really

[didn’t] give a shit’’ about belonging to the gang.

The fact that Early and Calabrese were fellow

inmates, in and of itself, does not establish that they

shared the type of relationship of trust and confidence

that demonstrates the trustworthiness of the statement.

Cf. State v. Thompson, 305 Conn. 412, 435, 45 A.3d 605

(2012) (statement was trustworthy when made to fellow

inmate who was known to declarant for several years

before incarceration, and with whom declarant had

become ‘‘reasonably close’’ in two months of incarceration prior to making of statement (internal quotation

marks omitted)), cert. denied, 568 U.S. 1146, 133 S. Ct.

988, 184 L. Ed. 2d 767 (2013); State v. Camacho, supra,

282 Conn. 361 (statement made ‘‘to people with whom

[declarant] had a trusting relationship’’); State v. Pierre,

supra, 277 Conn. 69 (statement made to friend, with

whom declarant ‘‘routinely socialized’’); State v. Bryan,

193 Conn. App. 285, 304–306, 219 A.3d 477 (relationship

of trust and friendship when declarant had known person to whom he made statement for approximately ten

years, had stayed at person’s home, and had committed

robbery with that person), cert. denied, 334 Conn. 906,

220 A.3d 37 (2019). Our appellate case law indicates

that ‘‘[s]tatements made by a declarant to fellow

inmates have been considered untrustworthy. See State

v. DeFreitas, 179 Conn. 431, 453, 426 A.2d 799 (1980)

(declarations against penal interest are untrustworthy

when, inter alia, confessions made to fellow inmate);

Morant v. State, 68 Conn. App. 137, 172, 802 A.2d 93

(exclusion of [third-party] confession proper when,
inter alia, declarant confided not in close friends but

in fellow inmate) (overruled in part on other grounds

by Shabazz v. State, 259 Conn. 811, 830 n.13, 792 A.2d

797 (2002)), cert. denied, 260 Conn. 914, 796 A.2d 558

(2002). The fact that the statements allegedly made by

[the declarant] were made to a fellow inmate, with

whom [the declarant] did not have a close relationship,

weighs against their trustworthiness.’’ (Emphasis added.)

Martin v. Flanagan, 107 Conn. App. 544, 549–50, 945

A.2d 1024 (2008).

State v. Smith, supra, 289 Conn. 598, on which the

state relies, is not to the contrary. In Smith, we concluded that the trial court’s admission of an inmate’s

recorded statement, when the court found that it was

made in a private manner to a cellmate in whom the

declarant would be likely to confide, was not an abuse

of discretion. Id., 630, 632–33. It was not our intention

in Smith to adopt a blanket rule or presumption that

a relationship between inmates, or even cellmates, is

one of trust and confidence simply because of their

shared circumstance. The inmates in Smith were both

facing drug charges and had been cellmates for perhaps

as long as one month when the statements were made.

Id., 615.

In the present case, Early and Calabrese were strangers who were cellmates for less than twenty-four hours

when the statement was made. Early’s purported status

as a gang member could have induced Calabrese to

embellish his criminal history to send a message that

neither Early nor any of his fellow gang members in

the facility should mess with him. There is no basis in

the record to conclude that, in this fleeting period, a

relationship of trust and confidence developed.

The two remaining factors, however, corroboration

and the degree to which the statement was against

Calabrese’s penal interest, overwhelmingly weigh in

favor of trustworthiness. Calabrese’s account was consistent with the physical evidence in almost all material

respects; the only material inconsistency was his claim

that Vitalis had pulled a knife on him when no knife

was found at the scene. There are numerous reasons

why Calabrese may have intentionally fabricated the

existence of the knife.23 The state also produced independent evidence to corroborate Calabrese’s identification of the defendant as his accomplice and Calabrese’s

presence at the scene—cell phone location information

and a statement that Calabrese had made to his girlfriend before the crime, among other evidence. Although

the defendant points to certain aspects of Calabrese’s

account that are inconsistent with the evidence (i.e., time

of day, which door was the point of entry, etc.), none of

these facts is material. It is unsurprising that such inconsequential details could have been misremembered more

than one year after the events occurred.

The extent to which the statement is against Cala-
brese’s own penal interest could not be greater. He cast

himself as the principal actor—the only perpetrator

armed, the person who first restrained Vitalis’ mother,

the person who shot Vitalis, and the only one who stole

property from the scene. He exposed himself to felony

murder charges, among other charges. Calabrese’s

statement and the circumstances of its making have

none of the characteristics that had historically caused

courts to view dual inculpatory statements as presumptively unreliable when offered to prove the guilt of an

accomplice of the declarant. See Lilly v. Virginia, 527

U.S. 116, 134, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999)

(plurality opinion) (concluding that such statements are

not within firmly rooted hearsay exception for confrontation clause purposes); see also id., 136–37 (confirming

that such statements may nonetheless be admitted if

they possess particularized guarantees of trustworthiness). Calabrese neither shifted blame from himself to

the defendant nor attempted to share the blame for

the murder with the defendant. See State v. Schiappa,

supra, 248 Conn. 155 (citing these factors). Calabrese

did not know that his statement was being recorded at

the behest of state officials, and, thus, he could not

have been making the statement to curry favor with

the government. See State v. Rivera, 268 Conn. 351,

370, 844 A.2d 191 (2004) (‘‘Lilly’s main concern was

with statements in which, as is common in police station

confessions, the declarant admits only what the authorities are already capable of proving against him and

seeks to shift the principal blame to another (against

whom the prosecutor then offers the statement at trial)’’

(internal quotation marks omitted)); State v. Gold, 180

Conn. 619, 635, 431 A.2d 501 (concern with attempt to

‘‘curry favor’’), cert. denied, 449 U.S. 920, 101 S. Ct. 320,

66 L. Ed. 2d 148 (1980); 2 R. Mosteller, McCormick on

Evidence (8th Ed. 2020) § 319, p. 569 (‘‘federal courts

have most frequently admitted [third-party] statements

that inculpate a defendant [when] two general conditions are satisfied: (1) the statement does not seek to

curry the favor of law enforcement authorities, and

(2) it does not shift blame’’). Therefore, the trial court

clearly did not abuse its discretion by admitting Calabrese’s dual inculpatory statement under § 8-6 (4).

II

The defendant’s final challenge is to the trial court’s

exclusion of Shyam’s confession to the defendant’s sister, Majmudar, which the defendant offered as a statement against penal interest under § 8-6 (4) of the Connecticut Code of Evidence. The defendant contends

that the trial court abused its discretion in concluding

that Shyam’s statement was not trustworthy. We agree

with the Appellate Court that the trial court’s ruling

was not an abuse of discretion.24

The principles that we articulated in part I C regarding

the hearsay exception for statements against penal
interest under § 8-6 (4) of the Connecticut Code of Evidence apply equally to the admissibility of Shyam’s confession. We assess the trial court’s discretion in applying

those principles to the following undisputed facts. During the presentation of the defense’s case-in-chief, Majmudar testified that her cousin Shyam had made a surprise visit to her Boston home sometime in the last two

weeks of September, 2013. When asked what Shyam

had said during that visit, the prosecutor objected. In

a proffer outside of the jury’s presence, Majmudar provided the following testimony. She and Shyam had a

close relationship, becoming especially close when

Shyam lived with Majmudar’s family in Branford, Connecticut, for two years while Majmudar was in high

school. When Shyam visited Majmudar in Boston in

September, 2013, he told Majmudar that his family was

asking relatives for help posting bond for Niraj, and

asked whether he could borrow $50,000 from her. Majmudar replied that she could not lend the money

because she needed it to help the defendant post bond

and pay attorney’s fees. Majmudar told Shyam that she

knew the defendant was innocent because he had been

with her in Boston when the crimes occurred. When

Shyam did not appear surprised by this revelation, Majmudar asked him if he knew who had accompanied

Calabrese. After further probing, Shyam broke down in

tears and admitted that he and Calabrese were the ones

who had tried to rob Vitalis. Shyam then provided her

with an account of the incident, in which he stated that

he had fled the Vitalis home after Calabrese shot Vitalis

and later returned in a vehicle with Niraj to pick up

Calabrese. Majmudar asked Shyam whether Calabrese

had used the defendant’s cell phone during the robbery.25 Shyam responded affirmatively and volunteered

that he had left his own cell phone at home. Majmudar

told Shyam that he needed to come forward and confess, but Shyam said that he could not do that to his

parents, as they already faced the risk that Niraj would

be taken away from them.

The trial court asked Majmudar who she had told

about Shyam’s confession. She replied that she had told

only the defendant, after he was released on bond.

The court sustained the prosecutor’s objection to

the admission of the testimony pertaining to Shyam’s

confession. The court found that, in light of the totality

of the circumstances under which the statement was

purportedly made, the statement was untrustworthy

and particularly lacking in sufficient corroboration. The

court cited the following factors. The court pointed out

that the alleged confession was made thirteen months

after the crime and that Majmudar claimed to have

told no one except the defendant about the alleged

confession for more than three and one-half years after

the statement was made. It reasoned: ‘‘Both of these

delays provided her with years to learn the details of

the prosecution’s theory of the case and, if she wished
to do so, [to] fabricate the statement. . . . [B]oth the

delay in which the statement was supposedly made and

the time at which it was revealed, which was yesterday,

independently, and, when combined, weigh heavily

against the admissibility of the statement. The incriminating statements were, based on the evidence made

to date, made to only one person, [Majmudar]; that fact

weighs against admissibility. The concept that [Majmudar] allegedly allowed her parents and her sister to

agonize over the emotional and financial burden of this

prosecution for the past three and [one-half] years, all

the while keeping to herself the supposed confession

that would have been of incalculable relief to them, is

incomprehensible and weighs against admissibility. The

nature of the relationship between [Majmudar] and

Shyam . . . weighs heavily against admissibility. The

witness is highly motivated to assist her brother, and,

even though there may be a strong relationship between

these two cousins, Shyam and [Majmudar] . . . Shyam

. . . had to know that [Majmudar’s] primary loyalty

would be to her brother. Unless Shyam . . . wanted

his confession to be open and known, he would never

have made it to one of the four people on this planet

who are most highly motivated above and beyond all

others to bring it to the attention of the authorities to

save their son, their sibling, from what they would have

believed to be a wrongful prosecution.’’

The court further reasoned that ‘‘[t]he details of the

statement . . . make it untrustworthy and even

bizarre.’’ The court questioned why Shyam would volunteer trivial details such as which vehicle he had driven,26

and found it ‘‘[e]specially suspect’’ that Majmudar asked

Shyam if Calabrese used the defendant’s phone during

the robbery. See footnote 26 of this opinion. The court

noted that there was no evidence explaining how Majmudar would have known that phones played any role

in the robbery—‘‘for all she knew, the plan was hatched

by coconspirators in a bar, immediately carried out

and no phones were used at all.’’ The court found it

nonsensical that, if Calabrese and Shyam decided not

to use their own phones during the robbery, they would

use the phone of someone with whom they are associated or related, instead of untraceable phones.

The court also pointed out that evidence demonstrated that ‘‘Vitalis had significant contacts and dealings with Niraj . . . and Shyam . . . which explains

. . . at least in part, why Niraj . . . and Shyam . . .

did not enter that home, because . . . despite masks,

through their voices in the prior context, it would have

been readily recognized, and that would explain why

Niraj . . . solicited others who [did] not have contact

with . . . Vitalis to carry out the robbery. . . . [T]hat

evidence alone points more to . . . Calabrese and this

defendant than it does to Shyam . . . having been the

person to enter the Vitalis home. The circumstances

surrounding the event are far more consistent with [the]
defendant entering the Vitalis’ home than Shyam . . .

entering that home.’’

The Appellate Court agreed that Shyam’s statement

‘‘was against [his] penal interest to a significant extent,

such that this factor weighs in favor of a finding of

trustworthiness,’’ but concluded that the trial court had

not abused its discretion in concluding that the remaining

factors clearly weighed against such a finding. State v.

Patel, supra, 194 Conn. App. 280, 283. We agree that the

trial court’s exclusion of the statement was not an abuse

of discretion.27

The defendant’s arguments for the admission of the

statement are unpersuasive. He suggests that, with

regard to the temporal factor, it is more important that

Shyam’s confession was made shortly after the arrests

in connection with the Sharon home invasion than the

fact that it was made more than one year after the

incident. The defendant cites no case law supporting

this proposition, and this proposition is contradicted

by the rationale for the temporal factor—that a lapse

of time following the crime provides a declarant with

opportunity for reflection and contrivance. See State v.

Pierre, supra, 277 Conn. 70. The defendant’s emphasis

on the close relationship between the cousins, Majmudar and Shyam, and on the case law recognizing that

a blood relationship may be one of trust; see, e.g., State

v. Rivera, supra, 268 Conn. 369; misses the point. The

trial court reasonably pointed to the stronger relationship between the defendant and his sister, and her loyalty to him over Shyam.

Most of the evidence that the defendant characterizes

as corroborative indicates only that Shyam may have

played some role in connection with the incident, not

that Shyam was present in the Vitalis home.28 We previously have emphasized that ‘‘[t]he corroboration

requirement for the admission of a [third-party] statement against penal interest is significant and goes beyond

minimal corroboration.’’ (Emphasis omitted; internal

quotation marks omitted.) State v. Lopez, supra, 254

Conn. 319. The only evidence that could corroborate

Shyam’s presence at the Vitalis home invasion is one

of the several statements given by Vitalis’ mother to

the police about the incident. In January, 2016, more

than three years after the incident, Rita Vitalis told the

police that she believed that one of the masked intruders was an Indian male and believed that this person

was Shyam. She knew Niraj and Shyam but not the

defendant. In other statements, however, she reported

that she believed that both of the intruders were white,

that they could be Hispanic, or that she did not know

who either intruder was with certainty. The trial court,

therefore, reasonably concluded that Shyam’s statement was not sufficiently trustworthy to be admitted

as a statement against penal interest.

The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.

1 The defendant also was convicted of felony murder in violation of General

Statutes § 53a-54c and conspiracy to commit robbery in the first degree in

violation of §§ 53a-134 (a) (2) and 53a-48. The trial court vacated his convictions on those charges to avoid double jeopardy concerns.

2

‘‘A dual inculpatory statement is a statement that inculpates both the

declarant and a third party, in this case the defendant.’’ (Internal quotation

marks omitted.) State v. Camacho, 282 Conn. 328, 359, 924 A.2d 99, cert.

denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007).

3 The holiday, Raksha Bhandana, which celebrates the bond between a

brother and sister, or other close male/female relationships, fell on August

2, 2012. The director of Hindu life at Yale University confirmed the holiday’s

significance and that, although the preferred way to celebrate is in each

other’s presence, there is flexibility in both the manner and timing of the

holiday’s observance. Cell phone records established that Majmudar and

the defendant had a thirty-seven minute phone call on August 2, 2012, and

no phone contact on August 6, 2012.

4

In the recorded exchange on September 4, 2013, Calabrese told Early

that the police had questioned him about the incident after they reviewed

cell phone records for Vitalis, which eventually led them to information

about Calabrese’s cell phone. The trial court credited Early’s testimony that,

on the evening of September 3, 2013, Calabrese initiated the topic of the

Sharon home invasion.

5

It is unclear from the record whether Early was told where the incident

took place, or how the matter of interest was described to Early.

6 Although several of this court’s decisions address the evidentiary issue

first; see, e.g., State v. Simpson, 286 Conn. 634, 650–51, 945 A.2d 449 (2008);

State v. Camacho, supra, 282 Conn. 362–63; State v. Kirby, 280 Conn. 361,

373–78, 908 A.2d 506 (2006); those cases appear to rely on the jurisprudential

policy of constitutional avoidance, which directs courts to decide a case

on a nonconstitutional basis if one is available, rather than unnecessarily

deciding a constitutional issue. See, e.g., State v. Cameron M., 307 Conn.

504, 516 n.16, 55 A.3d 272 (2012) (overruled in part on other grounds by

State v. Elson, 311 Conn. 726, 728 n.14, 754, 91 A.3d 862 (2014)), cert. denied,

569 U.S. 1005, 133 S. Ct. 2744, 186 L. Ed. 2d 194 (2013); State v. McCahill,

261 Conn. 492, 501, 811 A.2d 667 (2002). This policy is inapplicable, however,

to cases in which a defendant raises the constitutional claim based on his

right to confrontation. Resolution of the evidentiary claim would not obviate

the need to address the constitutional issue because, even if the statement

is inadmissible under the hearsay exception relied on, the state would be

free on retrial to seek admission of the same statement on a different

evidentiary basis. The constitutional issue, therefore, is the appropriate

starting point.

7 See also State v. Sinclair, 332 Conn. 204, 218–25, 210 A.3d 509 (2019);

State v. Slater, 285 Conn. 162, 169–74, 939 A.2d 1105, cert. denied, 553 U.S.

1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008); State v. Kirby, supra, 280

Conn. 378–83.

8 We are aware of only two cases to the contrary. In Cazares v. State,

Docket No. 08-15-00266-CR, 2017 WL 3498483, *10 (Tex. App. August 16,

2017, review refused), cert. denied, U.S. , 139 S. Ct. 422, 202 L. Ed.

2d 324 (2018), the court deemed the informant’s purpose, which was

unknown to the declarant, to be dispositive. In People v. Redeaux, 355 Ill.

App. 3d 302, 823 N.E.2d 268, cert. denied, 215 Ill. 2d 613, 833 N.E.2d 7 (2005),

the court took a narrower approach. It suggested that a coconspirator’s

statements to an undercover officer could be testimonial if elicited pursuant

to an ‘‘interrogation,’’ meaning formal, structured questioning. (Internal quotation marks omitted.) Id., 306–307. The court in Redeaux ultimately concluded that the conversation at issue did not come close to such questioning,

pointing to the facts that its purpose was to facilitate a drug transaction,

not ‘‘a subterfuge to gain information about this or some other crime,’’ and

that the undercover officer never asked the coconspirator, a drug dealer,

to name his ‘‘source,’’ i.e., the defendant. (Internal quotation marks omitted.)

Id., 306.

Before and shortly after Crawford was decided, a few commentators had

advocated for a de facto interrogation approach but limited that term to

circumstances in which there was sustained questioning, leading questions,

or suggestions made with a preconceived notion of the evidence that the

agent or informant wanted to obtain. See M. Berger, ‘‘The Deconstitutionalization of the Confrontation Clause: A Proposal for a Prosecutorial Restraint

Model,’’ 76 Minn. L. Rev. 557, 608–609 (1992); M. Seigel & D. Weisman, ‘‘The
Admissibility of Co-Conspirator Statements in a Post-Crawford World,’’ 34

Fla. St. U. L. Rev. 877, 903–904 (2007). Courts have rejected a ‘‘de facto’’

interrogation theory in the context of jailhouse informants acting as agents

for the police on the grounds that this circumstance is not an interrogation

and would not yield a testimonial statement, even if it could be broadly

characterized as an interrogation. See, e.g., United States v. Smalls, supra,

605 F.3d 779 (‘‘[C]asual questioning by a fellow inmate does not equate to

police interrogation, even though the government coordinated the placement

of the fellow inmate and encouraged him to question [the defendant’s accomplice]. But whether we properly may label [the confidential informant’s]

encounter with [the defendant’s accomplice] as an interrogation in some

remote sense is beside the point because Davis establishes that not every

statement made in response to an interrogation is testimonial. Rather, only in

some instances does interrogation tend to generate testimonial responses.’’

(Emphasis omitted; internal quotation marks omitted.)). But see id., 788

(Kelly, J., dissenting) (arguing that history supports confrontation analysis

based on declarant with full knowledge of facts, including true identity and

purpose of person eliciting information). We explain subsequently in this

opinion why both Cazares and Redeaux are contrary to the United States

Supreme Court’s most recent case law.

9 The court in Clark also observed that its decision was bolstered by the

age of the child: ‘‘Statements by very young children will rarely, if ever,

implicate the [c]onfrontation [c]lause. Few preschool students understand

the details of our criminal justice system. Rather, [r]esearch on children’s

understanding of the legal system finds that young children have little understanding of prosecution. . . . Thus, it is extremely unlikely that a [three

year old] child in [this child’s] position would intend his statements to be

a substitute for trial testimony.’’ (Citation omitted; emphasis added; internal

quotation marks omitted.) Ohio v. Clark, supra, 576 U.S. 247–48.

10 Hammon involved statements given by a domestic violence victim to

the police, after being isolated from her abusive husband, which were memorialized in a ‘‘battery affidavit.’’ (Internal quotation marks omitted.) Davis

v. Washington, supra, 574 U.S. 820. The court held that the statements in

Hammon were testimonial. Id., 830.

11 The court in Clark rejected the defendant’s reliance on the state’s mandatory reporting obligation as a basis to equate the child’s teachers with the

police and their questions with an official interrogation. See Ohio v. Clark,

supra, 576 U.S. 249. The court observed that ‘‘mandatory reporting statutes

alone cannot convert a conversation between a concerned teacher and her

student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.’’ Id.

12 The defendant makes much of the fact that the statements in Dutton

and Bourjaily were admitted under the hearsay exception for statements

by a coconspirator—historically viewed as inherently reliable—whereas

Calabrese’s statement was admitted under the exception for statements

against penal interest—historically viewed as presumptively unreliable when

used to inculpate a codefendant. Even if we were to accept the defendant’s

characterization; see United States v. Inadi, 475 U.S. 387, 400, 106 S. Ct.

1121, 89 L. Ed. 2d 390 (1986) (recognizing that Dutton involved state coconspirator rule that admitted broader category of statements than did federal

coconspirator rule); the distinction he draws is immaterial. Bryant would

compel us to reach the same result even in the absence of this dictum.

Moreover, the distinction between the hearsay exceptions has no relevance

under Crawford’s testimonial analytical framework, which abandoned the

traditional evidentiary analytical approach, a reliability focused inquiry. See,

e.g., State v. Rivera, 268 Conn. 351, 365 n.13, 844 A.2d 191 (2004) (‘‘[b]ecause

the United States Supreme Court [in Crawford] has characterized [the]

statement [in Dutton] as nontestimonial . . . it would follow that the statement [against penal interest to a fellow inmate] . . . is also nontestimonial’’).

13 There are examples of courts relying on their respective state constitutions to fill gaps in the United States Supreme Court’s testimonial framework,

at least until the court does so itself. See, e.g., State v. Scanlan, 193 Wn.

2d 753, 766, 445 P.3d 960 (2019) (concluding that Washington case law

articulating comprehensive definition of ‘‘testimonial’’ statements and specific test for applying that definition to statements to nongovernmental

witnesses under Washington constitution due to gap in federal jurisprudence

was superseded by subsequent decision of United States Supreme Court

applying its primary purpose test to statements to nongovernmental witnesses), cert. denied, U.S. , 140 S. Ct. 834, 205 L. Ed. 2d 483 (2020);
see also State v. Rodriguez, supra, 337 Conn. 226–27 (Kahn, J., concurring)

(filling gap regarding admissibility of forensic evidence with its own test

under federal constitution); People v. John, 27 N.Y.3d 294, 312–15, 52 N.E.3d

1114, 33 N.Y.S.3d 88 (2016) (filling gap regarding admissibility of forensic

scientific laboratory reports).

14 Although this court indicated that the federal and state provisions are

subject to the same interpretation because of their ‘‘shared genesis in the

common law’’; State v. Lockhart, supra, 298 Conn. 555; it is important to

acknowledge that we have never undertaken an independent examination

of the circumstances surrounding the adoption of the federal confrontation

clause. This acknowledgement is important because examinations of those

circumstances by courts and scholars have not yielded a consensus as to

what historical facts matter and what these facts reveal about the intended

meaning and application of the confrontation clause.

This inconsistency is reflected in the court’s case law; see, e.g., Crawford

v. Washington, supra, 541 U.S. 60–64 (determining that court’s previous

interpretation of confrontation clause in Roberts was wholly incompatible

with historical basis for adoption of confrontation clause); as well as in

scholarship that, in turn, criticizes Crawford’s own historical account. See,

e.g., K. Graham, ‘‘Confrontation Stories: Raleigh on the Mayflower,’’ 3 Ohio

St. J. Crim. L. 209, 209 (2005) (‘‘Justice Scalia’s majority opinion [inCrawford]

tells a version of the history of the [c]onfrontation [c]lause that would do

Hollywood proud’’); B. Trachtenberg, ‘‘Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation

Clause,’’ 64 Fla. L. Rev. 1669, 1677–78 (2012) (citing sources).

The lack of consensus as to which historical facts motivated the adoption

of the confrontation clause and how the clause applies to present circumstances seems to be a product of several factors. No court or scholar has

concluded that the confrontation clause is unambiguous and can be interpreted literally. See State v. Torello, 103 Conn. 511, 513, 131 A. 429 (1925)

(‘‘[interpreted] [l]iterally it would prohibit the introduction of the testimony

of any witness who was not produced in court’’); M. Larkin, ‘‘The Right of

Confrontation: What Next?,’’ 1 Tex. Tech L. Rev. 67, 67 (1969) (‘‘[t]he precise

source of this use of the word ‘confront’ is obscure’’). Ascertaining original

intent in the absence of a plain textual meaning is complicated by the lack

of any meaningful debate during the drafting and ratification of the federal

confrontation clause. See H. Gutman, ‘‘Academic Determinism: The Division

of the Bill of Rights,’’ 54 S. Cal. L. Rev. 295, 332 n.181 (1981) (debate on

confrontation clause lasted five minutes); R. Mosteller, ‘‘Remaking Confrontation Clause and Hearsay Doctrine Under the Challenge of Child Sexual

Abuse Prosecutions’’, 1993 U. Ill. L. Rev. 691, 737 (‘‘Enough of the historical

materials surrounding the drafting and the ratification debates survives that

we can be relatively confident that no precise meaning was ascribed to the

[c]onfrontation [c]lause in either process. Indeed, the clause received only

limited attention.’’ (Footnote omitted.)). Case law is of marginal help in

ascertaining original intent because criminal cases largely were tried in

state courts at the time of the framing and the sixth amendment right of

confrontation was not extended to the states until 1965. See R. Friedman,

‘‘Crawford, Davis and Way Beyond,’’ 15 J.L. & Policy 553, 553 (2007); K.

Graham, supra, 3 Ohio St. J. Crim. L. 210.

In addition, application of the confrontation clause has been complicated

by significant historical developments that could not have been foreseen

by the framers. Crimes are investigated and prosecuted differently than at

the time of the framing. See M. Mannheimer, ‘‘Toward a Unified Theory of

Testimonial Evidence Under the Fifth and Sixth Amendments,’’ 80 Temp. L.

Rev. 1135, 1164 (2007) (‘‘professional police now replicate the investigatory

function of the magistrate’’); E. Schaerer, ‘‘Proving the Constitution: Burdens

of Proof and the Confrontation Clause,’’ 55 U. Rich. L. Rev. 491, 494–95

(2021) (noting that, at time of framing, police generally did not initiate

investigations on their own based on suspicion of probable crime, and

prosecution typically was initiated by crime victims and their families); M.

Seigel & D. Weisman, ‘‘The Admissibility of Co-Conspirator Statements in

a Post-Crawford World,’’ 34 Fla. St. U. L. Rev. 877, 906–907 (2007) (‘‘[i]n

the [f]ramers’ day, there was essentially no such thing as an undercover

investigation; indeed, organized, professional police forces did not come

onto the scene until around the Civil War’’ (footnote omitted)). Hearsay

exceptions have been expanded significantly; see E. Schaerer, supra, 494–95;

and new forms of evidence, e.g., forensic evidence, have developed. See D.

Noll, ‘‘Constitutional Evasion and the Confrontation Puzzle,’’ 56 B.C. L. Rev.

1899, 1904 (2015).
The defendant advances no argument about the significance of any of

these factors, other than the lack of a historical hearsay exception for

statements against penal interest, which we address subsequently in this

opinion. We acknowledge these factors to make clear that Gaetano does

not foreclose an argument that the federal courts have misinterpreted the

confrontation clause or that the development of our common law may

support an independent interpretation in a different context.

15 In the section of his brief devoted to historical insights and Connecticut

precedent, the defendant cites authority for propositions that he also does

not connect to the principal question before us—whether our state has ever

been more protective of confrontation rights than the federal system or

standard—and that do not lend support to the specific testimonial standard

that he advances. These authorities state the following propositions: Connecticut has long recognized the importance of cross-examination; see, e.g., 2

H. Dutton, A Revision of Swift’s Digest of the Laws of the State of Connecticut

(1862) c. XX, § 411, p. 437; and special sensitivity to confrontation clause

concerns is appropriate when the testimony of a witness is critical to the

state’s case against the defendant and the consequences of a conviction

based on the absent witness’ testimony are grave. See, e.g., State v. Lebrick,

334 Conn. 492, 507, 512, 223 A.3d 333 (2020) (stating these principles in

connection with question of whether state made reasonable efforts to locate

witness who purportedly was unavailable to testify, to satisfy federal confrontation clause).

The defendant also cites to one scholarly article in which the author

asserts that the testimonial nature of the statement should be established

from the perspective of either the speaker or the listener. See M. Pardo,

‘‘Confrontation After Scalia and Kennedy,’’ 70 Ala. L. Rev. 757, 782 (2019).

The author of this article offers no historical analysis to support this standard

and acknowledges doctrinal difficulties in applying it. See id., 782 n.180.

Many other commentators reject the defendant’s view. See, e.g., M. Mannheimer, supra, 80 Temp. L. Rev. 1192; W. Reed, ‘‘Michigan v. Bryant: Originalism Confronts Pragmatism,’’ 89 Denv. L. Rev. 269, 300–302 (2011).

16 Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d

476 (1968).

17 The defendant’s brief has a fourth policy section, from which we have

difficulty gleaning a specific policy argument. The defendant asserts that

one or more of the participants in the planning and execution of Calabrese’s

‘‘interrogation’’ should have known that the recorded statement would be

admissible at trial if Calabrese was unavailable to testify, that the sequence

of codefendants’ trials can affect their availability for cross-examination,

and that sequence is a matter of prosecutorial discretion.

There are several flaws in these assumptions. There is no evidence that

the police knew that Calabrese was the shooter when they asked Early to

record him. Had Calabrese offered an account identifying someone else as

the shooter, it is possible that the state would have attempted to use the

statement to extract a plea agreement in exchange for Calabrese’s testimony

against the shooter. Even if Calabrese had been tried first after admitting

to being the shooter, there is a strong possibility that he still would have

been unavailable to testify at the defendant’s subsequent trial. Calabrese’s

fifth amendment privilege would continue during any pending appeal; see,

e.g., United States v. Kennedy, 372 F.3d 686, 691 (4th Cir. 2004), cert. denied,

543 U.S. 1123, 125 S. Ct. 1019, 160 L. Ed. 2d 1073 (2005); as well as during any

possible retrial should he prevail on appeal. We also note that circumstances

outside of the state’s control (e.g., discovery, availability of witnesses, etc.)

may dictate the sequence of codefendants’ trials. If a rare case arose in

which there was evidence that the state intentionally delayed the declarant’s

trial so as to ensure the declarant’s unavailability for cross-examination,

the defendant may have a viable due process claim or argument for the

adoption of an equitable rule akin to the forfeiture doctrine, which bars a

defendant from objecting to the admission of hearsay statements of a witness

whose absence has been procured by the defendant. See T. Lininger, ‘‘Reconceptualizing Confrontation After Davis,’’ 85 Tex. L. Rev. 271, 300–301 and

nn.165–68 (2006) (discussing forfeiture doctrine). We have no occasion to

consider either possibility in the present case.

18 We underscore that we do not intend for this decision to foreclose

the possibility of departing from the federal courts’ interpretation of the

confrontation clause in another context. We are mindful of two concerns

that are not implicated in the present case that may, in the future, weigh

in favor of an independent course of action. First, there are indications in

opinions of various United States Supreme Court justices that the court
may adopt more limiting principles than those articulated in Crawford and

Davis. See, e.g., Williams v. Illinois, 567 U.S. 50, 58–59, 132 S. Ct. 2221,

183 L. Ed. 2d 89 (2012) (plurality opinion); see also Ohio v. Clark, supra,

576 U.S. 254 (Thomas, J. concurring). Second, courts are increasingly confronting circumstances in which they are unsure how to assess whether a

statement is testimonial. See K. McMunigal, ‘‘Crawford, Confrontation, and

Mental States,’’ 64 Syracuse L. Rev. 219, 220 (2014) (observing that commentators have described contemporary confrontation clause jurisprudence as

‘‘ ‘incoherent,’ ‘uncertain,’ ‘unpredictable,’ ‘a train wreck,’ suffering from

‘vagueness’ and ‘[doublespeak],’ and, simply put, a ‘mess’ ’’ (footnotes omitted)). This problem is particularly acute in cases in which forensic evidence

is at issue. See, e.g., State v. Rodriguez, supra, 337 Conn. 203–204 (Kahn,

J., concurring). Even some of the court’s justices have complained about

the lack of clear direction from the court. See id., 204 (citing cases from

various courts raising this concern). Justice Gorsuch, joined by Justice

Sotomayor, stated in a recent dissent from the court’s denial of certiorari

in a confrontation clause case: ‘‘Respectfully, I believe we owe lower courts

struggling to abide our holdings more clarity than we have afforded them

in this area. Williams imposes on courts with crowded dockets the job of

trying to distill holdings on two separate and important issues from four

competing opinions. The errors here may be manifest, but they are understandable and they affect courts across the country in cases that regularly

recur.’’ Stuart v. Alabama, U.S. , 139 S. Ct. 36, 37, 202 L. Ed. 2d 414

(2018) (Gorsuch, J., dissenting from the denial of certiorari). As applied

to the facts of the present case, however, the current standard yields a

clear result.

19 The police affidavit in support of the defendant’s arrest warrant reflects

that, many months before Calabrese gave the surreptitiously recorded statement, he had given several statements to the police about the Sharon home

invasion. Calabrese was approached by the police because of cell phone

records connecting him to Niraj. Calabrese provided a statement to the

police at that time and later provided additional statements through his

attorney. Calabrese initially claimed to have learned about the home invasion

only after the fact but later admitted that he was present when Niraj

announced the plan. In all of the statements, however, Calabrese disavowed

any participation and claimed that the defendant and an unknown third

party were the perpetrators.

20 The fact that Early was recording Calabrese in their prison cell at the

behest of law enforcement would not implicate either Calabrese’s Miranda

rights under the fifth amendment to the United States constitution; see

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

because courts do not consider this situation to be a ‘‘custodial interrogation’’; (internal quotation marks omitted) Illinois v. Perkins, 496 U.S. 292,

296–98, 110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990); or his right to counsel

under the sixth and fourteenth amendments to the United States constitution,

because that right is offense specific and is limited to charged offenses or

uncharged offenses that are directly connected to the charged offense. See

id., 299; United States v. Basciano, 634 Fed. Appx. 832, 836 (2d Cir. 2015),

cert. denied, U.S. , 136 S. Ct. 2529, 195 L. Ed. 2d 859 (2016). But use

of this tactic in other factual scenarios may cross a constitutional line. For

example, if Calabrese had been charged in connection with the Sharon

home invasion and invoked his right to counsel, the police could not have

surreptitiously questioned him through an agent or undercover operative.

See, e.g., Massiah v. United States, 377 U.S. 201, 205–206, 84 S. Ct. 1199,

12 L. Ed. 2d 246 (1964) (‘‘Any secret interrogation of the defendant, from

and after the finding of the indictment, without the protection afforded by

the presence of counsel, contravenes the basic dictates of fairness in the

conduct of criminal causes and the fundamental rights of persons charged

with [a] crime. . . . [I]f such a rule is to have any efficacy it must apply

to indirect and surreptitious interrogations as well as those conducted in the

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

omitted.)). Although Calabrese clearly was a suspect in the Sharon home

invasion when Early recorded Calabrese’s statements; see footnote 19 of

this opinion; there is no claim that there was probable cause to arrest

Calabrese in connection with that incident at that time and that a decision

was made to delay arrest to circumvent Calabrese’s right to counsel.

21 The trial court properly raised these concerns at the hearing on the

motion in limine in Niraj’s trial; its ruling in that case was deemed the law

of the case for the defendant’s identical motion: ‘‘It does, in my mind, create

an issue as to whether the recording is testimonial, and that’s an issue that
really can only be resolved, I believe, with an understanding of what led

up to the recording. Who initiated the conversation? My understanding

is the topic first came up the day before the recording. What were the

circumstances under which, after that conversation, the cooperating individual agreed to record a conversation? What happened on the morning of the

conversation before it took place? What interaction did that individual have

with law enforcement? Certainly, I believe all that is relevant to a Crawford

analysis.’’ Neither Niraj nor the defendant called the corrections officials

or law enforcement officials who spoke with Early to testify at the hearing

on the motion in limine. We note, however, that nothing that Early stated

in his conversation with Calabrese suggested any personal knowledge about

the facts of the crime.

22 It is unclear what the trial court meant when it stated that ‘‘Early was

facing serious charges.’’ When Calabrese’s statement was elicited, Early had

already been convicted of attempted burglary in the first degree with a

deadly weapon and criminal possession of a firearm.

23 It is immaterial whether Calabrese subjectively, but incorrectly, assumed

that he would be less culpable if it was believed that he killed Vitalis in

self-defense. ‘‘Whether a statement is against a declarant’s penal interests is

an objective inquiry of law, rather than a subjective analysis of the declarant’s

personal legal knowledge.’’ State v. Camacho, supra, 282 Conn. 359.

24 The state contends that the trial court also properly excluded Shyam’s

purported confession on the ground that the defendant failed to establish

Shyam’s unavailability, a precondition for the admission of a statement

against penal interest. See Conn. Code Evid. § 8-6 (4). Although there were

several exchanges between defense counsel and the court on this issue, it

is not entirely clear whether the trial court conclusively determined that

the defendant had failed to meet this condition. Like the Appellate Court,

we conclude that it is unnecessary to address Shyam’s availability in light

of our conclusion that the trial court did not abuse its discretion in determining that Shyam’s statement was not trustworthy. See State v. Patel, supra,

194 Conn. App. 279 n.19.

25 Evidence was presented at trial regarding the movement of cell phones

associated with Niraj, Calabrese, and the defendant on August 6, 2012, which

placed those phones near the crime scene and often in contact with one

another. See State v. Patel, supra, 194 Conn. App. 285–86. The cell phone

associated with the defendant accessed the cell tower located between

seven and eight miles from the crime scene for a series of phone calls prior

to 6:04 p.m. See id., 286–87. There were no outgoing calls or messages from

the cell phone associated with the defendant after 6:04 p.m. on August 6,

2012, which, the state’s expert observed, ‘‘indicated ‘either that the phone

was off or that it was . . . in an area where it could not receive any cell

signal,’ or that ‘something could have happened to the phone that rendered

it unable’ to receive a [cell] signal.’’ Id., 286. On August 6, 2012, Shyam’s

phone was used to make several phone calls through a device in his home

in Warren.

26 According to Majmudar, Shyam said that he and Niraj had driven ‘‘the

Pathfinder’’ back to the woods to find Calabrese. Shyam’s family owns a

white Pathfinder. Majmudar testified that, when she questioned Shyam as

to why the police had seized her parents’ two black sport utility vehicles

(SUVs), Shyam said that they had used ‘‘the black Saab SUV from New York’’

during the robbery. From the defendant’s perspective, these statements

identifying the vehicles provide two benefits. The report of the use of the

black Saab explains a witness’ report of seeing Niraj driving a vehicle fitting

the description of the defendant’s black Honda CRV about five miles away

from Vitalis’ home, when no such vehicle was registered to Niraj or to

Niraj’s family. The report of the use of the Pathfinder, after the murder was

committed, in conjunction with evidence that Shyam had access to that

vehicle on August 6, 2012, and that the Pathfinder was thoroughly cleaned

in the weeks before the police seized it in mid-September, 2013, provides

potential physical evidence connecting Shyam to the crime.

27 We observe that several statements made by the trial court in connection

with its ruling could be interpreted as comments explaining why Majmudar’s

testimony lacked credibility. ‘‘We previously have concluded . . . that a

trial court may not consider the credibility of the testifying witness in

determining the trustworthiness of a declaration against penal interest.’’

State v. Rivera, supra, 268 Conn. 372; see also 2 R. Mosteller, supra, § 319,

p. 575 (‘‘The federal courts have disagreed on whether the corroboration

requirement applies to the veracity of the in-court witness testifying that

the statement was made in addition to the clearly required showing that
the statement itself is trustworthy. As a matter of standard hearsay analysis,

the credibility of the in-court witness regarding the fact that the statement

was made is not an appropriate inquiry.’’ (Footnote omitted.)). The defendant

did not challenge the trial court’s ruling on this basis. Even if the trial

court had improperly rested its decision in part on Majmudar’s credibility,

however, the reasons articulated by the trial court illustrate why a jury

would have been highly unlikely to credit her testimony, and any potential

error in excluding Shyam’s purported confession would have been harmless.

28 ‘‘There was evidence at trial that Shyam sent the following text messages

to Niraj at 8:13 p.m. on August 6, 2012: ‘U want me to come to the station

in [P]athfinder?’; ‘?’; ‘Lemme know . . . I got keys.’ A white Pathfinder,

registered at the home Shyam shared with his parents and, occasionally,

Niraj, was seized by [the] police. The vehicle smelled clean and seemingly

had new floor mats. A receipt dated August 31, 2012, at 10:40 a.m. from

Personal Touch Car Wash in New Milford was found in a bedroom at Shyam’s

home, and Shyam’s cell phone utilized two cell towers in the vicinity of the

car wash around the date and time printed on the receipt.’’ State v. Patel,

supra, 194 Conn. App. 282 n.22. ‘‘There was [also] evidence at trial that

there were Google searches conducted on Shyam’s computer for the terms

‘conspiracy to commit murder in Connecticut’ and ‘conspiracy to kill,’ along

with searches for penalties for those crimes.’’ Id., 282 n.23.