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*********************************************** 
STATE OF CONNECTICUT v. MICHAEL FOX

(AC 41009)

Lavine, Keller and Bishop, Js.

Syllabus

Convicted of the crimes of home invasion, conspiracy to commit home

invasion, assault in the first degree, and conspiracy to commit assault

in the first degree in connection with the assault of the victims, H and

E, the defendant appealed to this court. The defendant, along with two

others, allegedly broke into H’s apartment and assaulted H and E. A

police officer, A, testified that he took certain photographs of the scene,

including photographs of certain doors of the premises, but while some

of the photographs resulted in discernable images, others did not. On

appeal, the defendant claimed, inter alia, violations of the federal and

state constitutions. Held:

1. The trial court violated the defendant’s right against double jeopardy

by sentencing him on two counts of conspiracy pursuant to a single

agreement with multiple criminal objectives, as the defendant’s conviction of both conspiracy charges stemmed from a single unlawful agreement to enter the premises and harm E; accordingly, the proper remedy

was to remand the case with direction to vacate the defendant’s conviction of conspiracy to commit assault in the first degree, and resentencing

was not necessary, where, as here, vacatur of the defendant’s conviction

and sentence for conspiracy to commit assault in the first degree would

not alter his total effective sentence.

2. The defendant could not prevail on his claim that the state violated his

right to due process under the Connecticut constitution as a result of

the destruction or loss of photographs depicting the crime scene, which

was based on his claim that the police failed to preserve potentially

exculpatory evidence in the form of photographs of the doors of H’s

apartment, the defendant having failed to meet the balancing test set

forth in State v. Asherman (193 Conn. 695), which was applicable to

his due process claim: the defendant could not establish the materiality

of the indiscernible photographs from the apartment, as the weight

of the evidence established that the defendant unlawfully entered or

remained in H’s apartment, forced entry was not a necessary element

of the home invasion charge, although it could be probative of unlawful

entry, and there was not a reasonable probability that, had the photographs been discernable, the result of the proceeding would have been

different; moreover, the likelihood of mistaken interpretation of the

missing evidence by the witnesses or jury was low given the ample

testimony regarding the photographs, nothing in the record indicated

that the state’s failure to preserve useful photographic evidence of the

condition of the doors was the result of any bad faith or improper motive

on the part of the state or law enforcement, and the defendant failed

to show that he was prejudiced as a result of the unavailable evidence,

as the court found that the defendant received all evidence available to

the state, including any indiscernible photographs, and the state had a

strong case with regard to the home invasion charge.

3. The trial court did not err when it denied the defendant’s request for an

adverse inference jury instruction related to the failure of the police to

produce discernable photographs of the apartment doors; no factual

basis existed for the specific charge requested by the defendant, as the

record was devoid of any evidence that the police investigation was

incomplete or that, in their investigation, the police had acted negligently

or in bad faith, and even if the trial court should have delivered the

requested instruction, in light of the evidence as a whole, its failure to

do so was harmless because the defendant failed to show that it was

more probable than not that the failure to give the requested instruction

affected the result of the trial.

Argued May 16—officially released August 27, 2019

Procedural History
Substitute information charging the defendant with

the crimes of home invasion, conspiracy to commit

home invasion, assault in the first degree, and conspiracy to commit assault in the first degree, brought to

the Superior Court in the judicial district of AnsoniaMilford, geographical area number twenty-two, and

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

of guilty, from which the defendant appealed to this

court. Reversed in part; judgment directed.

Megan L. Wade, assigned counsel, with whom was

Emily Graner Sexton, assigned counsel, for the appellant (defendant).

Kathryn W. Bare, assistant state’s attorney, with

whom, on the brief, was Kevin D. Lawlor, deputy chief

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

KELLER, J. The defendant, Michael Fox, appeals

from the judgment of conviction, rendered after a jury

trial, of home invasion in violation of General Statutes

§ 53a-100aa (a) (1), conspiracy to commit home invasion in violation of General Statutes §§ 53a-48 and 53a100aa (a) (1), assault in the first degree in violation of

General Statutes § 53a-59 (a) (4), and conspiracy to

commit assault in the first degree in violation of General

Statutes §§ 53a-48 and 53a-59 (a) (4). On appeal, the

defendant claims that (1) the trial court violated the

double jeopardy clause of the United States constitution

by sentencing the defendant on two counts of conspiracy on the basis of a single agreement with multiple

criminal objectives, (2) the state violated the defendant’s right to due process under the Connecticut constitution as a result of the destruction or loss of photographs depicting the crime scene, and (3) the trial court

erred in denying the defendant’s request for an adverse

inference jury instruction. We agree with the defendant’s first claim only and, accordingly, affirm in part

and reverse in part the judgment of the trial court.

The jury reasonably could have found the following

facts. Nicole Hart resided in Milford in an in-law apartment (apartment) connected to a main residence. The

apartment consists of a bedroom, bathroom, kitchen,

and living room. An interior door separates the apartment from the main residence. At the time of the incident in question, Nicole Hart’s grandmother, Dorothy

Hart, owned the dwelling and lived in the main residence, along with Nicole Hart’s cousin, Thomas Hart,

and Nicole Hart’s father. Nicole Hart’s cousin, Christopher Hart, also lived in the main residence at the time

of the incident. Nicole Hart and Joe Fox, the defendant’s

brother, were involved romantically, intermittently

from 2007 through October, 2014, and they share a

child together. Joe Fox lived with Nicole Hart in the

apartment for several weeks, from late September

through mid-October, 2014, until the two ended their

relationship in the second week of October, 2014.

On October 26, 2014, Thomas Hart texted Joe Fox,

alerting him that Nicole Hart’s new boyfriend, Anthony

Esposito, was at the apartment. Later in the day,

Thomas Hart drove to a park near the dwelling where

he met Joe Fox, who was driving a vehicle with two

passengers: the defendant and Zachary Labbe. Joe Fox

then followed Thomas Hart to the dwelling where

Thomas Hart, Joe Fox, the defendant, and Labbe exited

their vehicles. At approximately 11:30 p.m., the four

men entered the main residence through the front door

on the left-hand side of the dwelling and proceeded

into the apartment. The defendant, Joe Fox, and Labbe

then entered Nicole Hart’s bedroom where she was in

bed asleep with Esposito. Joe Fox dragged Nicole Hart,

by her neck, from the bedroom into the adjoining
kitchen where he directed expletives at her and strangled her, causing her to lose control of her bladder.

From the kitchen, Nicole Hart could hear crashing

noises coming from the bedroom where the defendant,

Labbe, and Esposito were located. Joe Fox returned

to the bedroom where he, the defendant, and Labbe

punched and kicked Esposito. Nicole Hart went to the

main residence to call 911 from the residence’s landline

telephone. Meanwhile, Joe Fox, the defendant, Thomas

Hart, and Labbe exited the apartment and left in the

same cars in which they had arrived.

Police arrived at the residence at approximately 11:45

p.m. where they found Esposito, who was bleeding and

bruised about his head and face. Police also observed

blood on the floor of the entry way of Nicole’s bedroom

as well as on the mattress in Nicole’s bedroom. An

ambulance took Esposito to the hospital where he was

treated for orbital wall fractures of both eyes, a nasal

bone fracture, a closed head injury, and lacerations to

the inside of his mouth.

Later that same night, police located the vehicle that

Joe Fox had used to transport himself, the defendant,

and Labbe to and from the dwelling. Law enforcement

found Esposito’s blood on the steering wheel, exterior

driver’s side door handle, and exterior driver’s side door

of the vehicle in question. Lieutenant Richard Anderson,

of the Milford Police Department, obtained an arrest

warrant for the defendant. The defendant was arrested

on October 31, 2014, and subsequently charged with

home invasion in violation of § 53a-100aa (a) (1), conspiracy to commit home invasion in violation of §§ 53a48 and 53a-100aa (a) (1), assault in the first degree as

to Esposito in violation of § 53a-59 (a) (4), and conspiracy to commit assault in the first degree as to Esposito

in violation of §§ 53a-48 and 53a-59 (a) (4).

Following a jury trial, the defendant was found guilty

of home invasion, conspiracy to commit home invasion,

assault in the first degree, and conspiracy to commit

assault in the first degree. The defendant received a

total effective sentence of ten years of incarceration.1

This appeal followed. Additional facts will be set forth

as necessary.

I

The defendant first claims that the court violated the

double jeopardy clause of the United States constitution

by sentencing him on two counts of conspiracy pursuant to a single agreement with multiple criminal objectives. Specifically, he argues that the court committed

plain error when it rendered judgment and sentenced

him on the charges of conspiracy to commit home invasion and conspiracy to commit assault in the first degree

because both of those counts stemmed from a single

unlawful agreement to enter the apartment and harm

Esposito. In its reply brief, the state agrees with the
defendant that there was only one conspiracy and therefore the defendant’s conviction of two counts of conspiracy constitutes a violation of the defendant’s right

against double jeopardy. We, too, agree that a double

jeopardy violation exists and that the appropriate remedy is to reverse the judgment of conspiracy to commit

assault in the first degree and remand the case to the

trial court with direction to vacate the defendant’s conviction of conspiracy to commit assault in the first

degree.

The defendant concedes, and the state agrees, that

his double jeopardy claim was not preserved at trial

and thus seeks review pursuant to State v. Golding, 213

Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by

In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015).2

The first Golding prong is met because the record is

adequate for review. There is a clear record of the

allegations underlying the defendant’s convictions, as

well as a clear record of the offenses of which he was

convicted. ‘‘A defendant may obtain review of a double

jeopardy claim, even if it is unpreserved, if he has

received two punishments for two crimes, which he

claims were one crime, arising from the same transaction and prosecuted at one trial . . . .’’ (Internal quotation marks omitted.) State v. Urbanowski, 163 Conn.

App. 377, 386–87, 136 A.3d 236 (2016), aff’d, 327 Conn.

169 (2017). Additionally, ‘‘claims of double jeopardy

involving multiple punishments in the same trial present

a question of law to which we afford plenary review.’’

State v. Kurzatkowski, 119 Conn. App. 556, 568, 988

A.2d 393, cert. denied, 296 Conn. 902, 991 A.2d 1104

(2010); see also State v. Burnell, 290 Conn. 634, 642,

966 A.2d 168 (2009); State v. Culver, 97 Conn. App. 332,

336, 904 A.2d 283, cert. denied, 280 Conn. 935, 909 A.2d

961 (2006).

Further, the second Golding prong is met because a

claim of a double jeopardy violation is of constitutional

magnitude. The double jeopardy clause of the fifth

amendment to the United States constitution provides

that no person shall ‘‘be subject for the same [offense]

to be twice put in jeopardy of life or limb . . . .’’ U.S.

Const., amend. V.

The third Golding prong is also met because in the

present case, the trial court convicted and sentenced

the defendant on separate charges of conspiracy to

commit home invasion in violation of §§ 53a-48 and 53a100aa (a) (1), and conspiracy to commit assault in the

first degree in violation of §§ 53a-48 and 53a-59 (a) (4)

that were based on a single conspiratorial agreement.

‘‘Whether the object of a single agreement is to commit

one or many crimes, it is in either case that agreement

which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several

agreements and hence several conspiracies because it

envisages the violation of several statutes rather than
one. . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but

a single statute . . . .’’ (Citations omitted; internal quotation marks omitted.) Braverman v. United States, 317

U.S. 49, 53–54, 63 S. Ct. 99, 87 L. Ed. 23 (1942). ‘‘[U]nder

Connecticut law; see, e.g., State v. Ortiz, 252 Conn. 533,

559, 747 A.2d 487 (2000); it is a double jeopardy violation

to impose cumulative punishments for conspiracy

offenses if they arise from a single agreement with

multiple criminal objectives.’’ State v. Wright, 320 Conn.

781, 829, 135 A.3d 1 (2016). Here, both conspiracy convictions arose from the single agreement reached by

the defendant, Joe Fox, Labbe, and Hart to enter the

apartment and inflict serious injury to Esposito. Therefore, the charges in question arise out of the same act

or transaction.

The fourth Golding prong is met because the state

has failed to demonstrate that the alleged constitutional

violation was harmless beyond a reasonable doubt. To

the contrary, the state has conceded that the two conspiracy convictions violate the double jeopardy clause

of the fifth amendment. Although the sentence imposed

for conspiracy to commit assault in the first degree did

not lengthen the total effective sentence imposed in

this case; see footnote 1 of this opinion; other adverse

consequences may result from the sentence. The

Supreme Court has concluded that a cumulative conviction has ‘‘potential adverse collateral consequences’’3

that can independently qualify as a punishment. (Internal quotation marks omitted.) Rutledge v. United States,

517 U.S. 292, 302, 116 S. Ct. 1241, 134 L. Ed. 2d 419

(1996).

When a defendant’s double jeopardy rights have been

violated because the court has imposed multiple sentences for conspiracy offenses that arose out of the same

agreement, the proper remedy is for this court to

reverse the judgment of conviction for the lesser offense

of conspiracy, remand the case to the trial court with

direction to vacate the conviction for the lesser offense

of conspiracy, and to resentence the defendant accordingly. See State v. Wright, supra, 320 Conn. 829 (holding

vacatur of lesser conspiracy offense, rather than

merger, was proper remedy in case involving multiple

punishments for cumulative conspiracy convictions

arising from single agreement);4 State v. Steele, 176

Conn. App. 1, 38, 169 A.3d 797, cert. denied, 327 Conn.

962, 172 A.3d 1261 (2017) (holding vacatur of lesser

conspiracy offense, rather than merger, was proper

remedy in case involving multiple punishments for

cumulative conspiracy convictions arising from single

agreement).

At oral argument, both parties agreed that it is not

necessary to resentence the defendant because the

requested remedy will not alter the defendant’s total

sentence. We agree that, while the trial court retains
the authority to restructure the defendant’s sentence if

that court determines that doing so is necessary to

retain its original sentencing intent, it is unnecessary

for this court to remand the case to the trial court

for resentencing because vacatur of the defendant’s

conviction and sentence for conspiracy to commit

assault in the first degree will not alter his total effective

sentence. See footnote 1 of this opinion; see also State

v. Johnson, 316 Conn. 34, 42–43, 111 A.3d 447 (2015);

State v. Steele, supra, 176 Conn. App. 38–39.

II

The defendant next claims that the state violated his

right to due process under the Connecticut constitution

as a result of the ‘‘destruction or loss’’ of photographs

depicting the crime scene. Despite the fact that the

defendant refers to the photographs as destroyed or

lost, the state counters, and we agree, that the photographs exist, but are merely indiscernible. The state

contends that the record is inadequate to review this

claim because the trial court did not make any factual

findings concerning the indiscernible photographs. In

the alternative, the state argues that, even if the record is

adequate for review, the defendant’s claim fails because

the defendant cannot show that a constitutional violation exists and deprived him of a fair trial. We disagree

with the state that the record is inadequate to review

the claim, but agree with the state that, although the

record is adequate for review and the defendant raises

a constitutional claim, his claim ultimately fails because

the alleged constitutional violation does not exist and

did not deprive the defendant of a fair trial.

The following facts are relevant to our conclusion.

At trial, Nicole Hart testified to the following facts: Joe

Fox lived in the apartment with her for several weeks

around October, 2014. Nicole Hart and Joe Fox ended

their relationship around the second week of October,

2014, at which time Nicole Hart asked Joe Fox to leave

the apartment and he moved out. Joe Fox took his

belongings from the apartment and he did not have

keys to the apartment or the main residence. Nicole

Hart routinely locked the doors to her apartment and

to her bedroom, ‘‘for sleeping purposes,’’ and the doors

were locked on the night of October 26, 2014, when

she and Esposito went to sleep in her bedroom.

On the night of October 26, 2014, Nicole Hart awoke

to the sound of two loud bangs, followed by the defendant, Joe Fox, and Labbe entering her bedroom. While

the defendant, Joe Fox, and Labbe were punching and

kicking Esposito, Nicole Hart asked them what they

were doing in her house and to leave. Following the

incident at the apartment, Nicole Hart observed damage

to the apartment’s entrance door and her bedroom door.

Specifically, she observed that the apartment entrance

door was ‘‘kicked in’’ and a screw was missing from

the locking mechanism. She also observed that the
right-hand frame of her bedroom door had broken during the incident and the bedroom door did not lock as

of the time of trial.

Other witnesses testified as to the condition of the

apartment entrance door and bedroom door following

the incident on October 26, 2014. Erika Berrios, then

girlfriend of Nicole Hart’s cousin, Christopher Hart, testified that Nicole Hart routinely locked and closed the

apartment entrance door when she had visitors. Berrios

further testified that the day following the incident, she

observed damage to the apartment entrance door and

noted that the lock was out of place. She also testified

that Nicole Hart’s bedroom door was ‘‘completely . . .

damaged’’ and not ‘‘even worth fixing.’’

Thomas Hart testified that on the night of October

26, 2014, he observed Joe Fox trying to enter the apartment, but not being able to open the locked door. He

further testified that he then left Joe Fox, entered the

main residence, and subsequently heard a loud bang.

Anderson testified that he responded to the residence

on October 26, 2014, following the incident, and

observed damage to the apartment’s entrance door and

Nicole Hart’s bedroom door. Specifically, he observed

a broken door jamb and ‘‘some locking mechanism on

the floor’’ with regard to the apartment’s entrance door.

With regard to Nicole Hart’s bedroom door, he testified

that it ‘‘looked like it was forced open,’’ the door jamb

was broken, and a locking mechanism was on the floor.

Susan Delgado, a Hart family friend and the sole

defense witness, testified that the apartment entrance

door was ‘‘never locked.’’ She further testified that she

spoke with Anderson by phone and went to the apartment the day following the incident and she did not

observe damage to any of the doors in the apartment.

On cross-examination, however, Delgado provided conflicting testimony regarding how many days following

the incident she spoke with Anderson and visited the

apartment.

Anderson testified to the following facts: As part of

his investigation of the scene, he photographed relevant

areas of the main residence and the apartment including

the outside of the main residence, the entrance door

to the apartment, the apartment bedroom door, the

apartment bedroom, kitchen areas, and blood on the

floor of the entryway to the apartment bedroom. For

unknown reasons, some of the photographs Anderson

took resulted in discernable images while others did

not. Anderson noted, ‘‘[i]t’s electronic equipment, sometimes it works, most of the time it works, but this time

all the pictures did [not] come out.’’ It was not until

a later date that Anderson realized that some of the

photographs taken on October 26, 2014, did not ‘‘come

out.’’ Three of the seven photographs taken by Anderson on October 26, 2014, were discernable and were
entered into evidence as State’s Exhibits 6A, 6B, and

6C (photographs of blood on the floor of the entryway

to the bedroom, blood on Nicole Hart’s mattress, and

exterior of the main residence, respectively).5 Anderson

took the photographs of the main residence and the

apartment using a police issued Nikon digital camera.

He did not know how old the camera was and he did

not know whether the camera had a memory chip.

Anderson testified that he took the photographs

according to procedure and he thought he performed

diligently. Anderson also testified on cross-examination

that he only takes the photographs at the scene, while

an evidence technician at the ID bureau extracts the

photographs from the camera and prints the photographs. On cross-examination, when asked whether

someone could have deleted photographs of the doors

in question, Anderson responded, ‘‘[t]hey could have,

yes.’’ On redirect examination, Anderson reiterated that

some of the photographs from October 24, 2016, did

not come out and that he personally observed damage

to both the apartment entry door and Nicole Hart’s

bedroom door.

On the last day of the state’s case-in-chief, the defendant argued to the court that the state had failed to turn

over all potentially exculpatory material in violation of

Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10

L. Ed. 2d 215 (1963). Specifically, the defendant argued

that the state, or other governmental agencies, failed

to turn over a video recording of inventory of a vehicle

seized in connection with the case. The defendant also

argued that he was not aware that photographs taken

at the scene were missing and that he should have been

provided with the opportunity to review the memory

card from the police department’s digital camera, if one

so existed. In response, the state argued that, during

discovery, it had provided the defendant with the video

recording of the vehicle, as well as the seven photographs taken at the scene on October 24, 2016.6 The

state noted that three of the seven photographs, which

presumably would have included images of the apartment doors, were ‘‘barely legible,’’ did not ‘‘come out,’’

and were ‘‘overexposed.’’ At a later point in trial, the

state described one of the photographs as ‘‘completely

white,’’ one as ‘‘completely dark,’’ several as ‘‘grainy,’’

and noted ‘‘that you can’t see what they are.’’ The state

further noted that the photographs of the doors were

not lost, rather, Anderson did not notice ‘‘until a later

date that they did not come out.’’ The state noted that

it had provided all seven photographs to the defendant

and that he had access to the ones that did not

‘‘come out.’’

The court noted that it was satisfied that the state

had turned over all available evidence to the defendant,

and that before the trial, the defendant was aware of

the issue with the indiscernible photographs. Later in

the trial, the court independently raised the defendant’s
claim of a Brady violation and again concluded that

the defendant had received all evidence available to

the state, that the defendant had the ability to crossexamine Anderson as to the indiscernible photographs,

and that no Brady violation existed.

On appeal, the defendant claims that his conviction of

home invasion and conspiracy to commit home invasion

violates his right to due process because the police

failed to preserve potentially exculpatory evidence in

the form of photographs of the doors of the apartment.7

It is not disputed that the defendant did not raise a due

process violation at trial, and therefore the defendant

seeks review of the unpreserved claim pursuant to State

v. Golding, supra, 213 Conn. 239–40. See footnote 2 of

this opinion.

Under the first Golding prong, we conclude that we

have a sufficient record on appeal to consider the claim.

Anderson testified at length about the photographs he

took at the scene on October 26, 2014, and the fact that

some of the photographs were indiscernible. He noted

that he took photographs of the apartment’s entryway

door and Nicole Hart’s bedroom door, but that neither

of these photographs produced clear images. The defendant had ample opportunity to cross-examine Anderson

as to the indiscernible photographs and did in fact question him at length about the camera used, the witness’s

camera training, the procedure for extracting photographs from the camera, and the reason the photographs did not come out. In addition to both parties

questioning Anderson, the court ruled on the defendant’s oral motion in which he claimed that he was not

aware that some of the photographs taken at the scene

were indiscernible and that he should have been given

an opportunity to review the camera’s memory card.

The court concluded that the defendant had access to

all evidence in the possession of the state, and that the

state had no further obligation to provide the defendant

with information to which it did not itself have access.

The state claims that the record is inadequate for review

because the trial court did not weigh ‘‘the reasons for

the unavailability of the evidence against the degree of

prejudice to the accused.’’ (Internal quotation marks

omitted.) State v. Joyce, 243 Conn. 282, 301, 705 A.2d

181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523,

140 L. Ed. 2d 674 (1998). We conclude, on the basis of

the testimony adduced at trial and the trial court’s ruling

with regard to the indiscernible photographs, that the

record is adequate to review the claim and, therefore,

the first Golding prong is met.8

The second Golding prong is also met because the

defendant’s claim is of constitutional magnitude alleging the violation of a fundamental right. Specifically,

the defendant claims a due process violation in derogation of his rights under article first, § 8, of the constitution of Connecticut.9
The defendant’s claim fails, however, on the third

Golding prong because the defendant’s alleged due process violation does not exist and the defendant was not

deprived of a fair trial. ‘‘With respect to a due process

violation for failure to preserve under the federal constitution, the United States Supreme Court has held that

the due process clause of the fourteenth amendment

requires that a criminal defendant . . . show bad faith

on the part of the police [for] failure to preserve potentially useful evidence [to] constitute a denial of due

process of law.’’ (Internal quotation marks omitted.)

State v. Smith, 174 Conn. App. 172, 182, 166 A.3d 691,

cert. denied, 327 Conn. 910, 170 A.3d 680 (2017); see

also Arizona v. Youngblood 488 U.S. 51, 57–58, 109 S.

Ct. 333, 102 L. Ed. 2d 281 (1988).

In State v. Morales, 232 Conn. 707, 720–21, 657 A.2d

585 (1995), our Supreme Court rejected the federal bad

faith requirement and instead held that, when a due

process claim is advanced under the Connecticut constitution, our courts should employ the balancing test

set forth in State v. Asherman, 193 Conn. 695, 724, 478

A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct.

1749, 84 L. Ed. 2d 814 (1985). In determining whether

the reasons for the unavailability of the evidence outweigh the degree of prejudice to the accused, the Asherman test reviews the totality of the circumstances surrounding the missing evidence. State v. Morales, supra,

720–21. Specifically, the Asherman test considers ‘‘the

materiality of the missing evidence, the likelihood of

mistaken interpretation of it by witnesses or the jury,

the reason for its unavailability to the defense and the

prejudice to the defendant caused by its unavailability

. . . .’’ Id., 722–23. The reason for the missing evidence’s nonavailability factor concerns the state’s

involvement and the remaining three factors scrutinize

the impact of the missing evidence on the trial. Applying

this test, we conclude that the defendant’s right to due

process under the state constitution was not violated.

The first Asherman factor is the materiality of the

missing evidence. ‘‘The evidence is material only if there

is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding

would have been different.’’ (Internal quotation marks

omitted.) State v. Estrella, 277 Conn. 458, 485, 893 A.2d

348 (2006). On the other hand, ‘‘[t]he defendant’s mere

speculation that the [lost evidence] could have been

beneficial or not does not meet the standard necessary

to prove materiality.’’ (Emphasis in original.) State v.

Barnes, 127 Conn. App. 24, 33, 15 A.3d 170 (2011), aff’d,

308 Conn. 38, 60 A.3d 256 (2013).

Under this standard, the defendant cannot establish

the materiality of the indiscernible photographs from

the apartment. As a preliminary matter, the photographs

in question were not lost or missing, but rather, the

photographs of the apartment doors were indiscernible.
The trial court ruled that the state turned over all evidence in its possession to the defendant, including the

photographs that did not produce clear images. Nevertheless, the defendant contends that his conviction of

home invasion and conspiracy to commit home invasion

should be reversed and remanded as a result of the

alleged due process violation.

In light of the language of the home invasion statute

under which the defendant was convicted, there is not a

reasonable probability that the result of the proceeding

would have been different, even if the photographs were

discernable. Section 53a-100aa (a) provides in relevant

part: ‘‘A person is guilty of home invasion when such

person enters or remains unlawfully in a dwelling

. . . .’’ The express language of the statue does not

require that the defendant enter the dwelling using

force, or that he cause any damage upon entering.

Nicole Hart’s testimony established that the defendant

did not have permission to enter the apartment, and

also that he remained unlawfully in the apartment on

October 26, 2014, after she told him and the other perpetrators to leave. Although forced entry is not a necessary

element to prove home invasion, evidence of forced

entry may be probative of unlawful entry and, thus,

three witnesses testified as to the damaged doors of

the apartment. Even though the defendant’s witness,

Susan Delgado, testified that the doors were not damaged, the defendant is incorrect in his assertion that

had the photographs been discernable, the result of the

proceeding would have been different. The weight of

the evidence presented at trial established that the

defendant unlawfully entered or unlawfully remained

in the apartment. We are not persuaded, in light of the

evidence in its entirety and the essential elements of

the offense, that there is a reasonable probability that

had the photographs of the doors been discernible, the

result of the proceeding would have been different.

‘‘In further examining the materiality of potentially

exculpatory evidence under the Asherman test, a critical factor that our courts have considered is the defendant’s lack of interest in the evidence.’’ State v. Morales,

39 Conn. App. 617, 625, 667 A.2d 68, cert. denied, 235

Conn. 938, 668 A.2d 376 (1995). ‘‘The fact that a defendant failed to request the evidence goes to the issue

of materiality and whether the defendant deemed it

significant.’’ State v. Morales, supra, 232 Conn. 712 n.7.

Here, the defendant failed to raise the issue of the indiscernible photographs, or his ability to review the camera from which they were taken, until the last day of

the state’s case-in-chief. Outside the presence of the

jury, the defendant maintained that he did not learn of

the missing photographs until Anderson’s testimony.

The state, however, claimed that, during discovery, it

had turned over all photographs to the defendant,

including the three that were indiscernible. The prosecutor also claimed that he and the defendant had dis-
cussed the issue of the photographs ‘‘numerous times’’

prior to trial. The court ruled that it was satisfied that

the state had turned over the evidence in its possession

and that the defendant should have raised the issue

during discovery, rather than on the last day of the

state’s case-in-chief. Therefore, because there is not a

reasonable probability that the evidence would have

changed the outcome of the trial, and because the defendant showed a lack of interest in the evidence prior to

trial, the defendant is unable to establish the materiality

of the indiscernible photographs.

The secondAsherman factor considers the likelihood

of mistaken interpretation of the missing evidence by

witnesses or the jury. Mistaken interpretation can be

‘‘minimized at the trial by permitting testimony on the

issue . . . .’’ State v. Leroux, 18 Conn. App. 223, 233,

557 A.2d 1271, cert. denied, 212 Conn. 809, 564 A.2d

1072 (1989). In this case, the likelihood of mistaken

interpretation of the missing evidence by witnesses or

the jury is low. Anderson testified, on both direct and

cross-examination, that he took photographs on the

scene and that some of the photographs did not come

out. Given the ample testimony regarding the missing

photographs, the likelihood of mistaken interpretation

by the witnesses or jury is low.

The third Asherman factor concerns the reasons for

the nonavailability of the evidence, namely, the motives

underlying the loss of the evidence. In analyzing this

factor, courts examine ‘‘whether the destruction was

deliberate and intentional rather than negligent . . . or

done in bad faith or with malice . . . or calculated to

hinder the defendant’s defense, out of other animus

or improper motive, or in reckless disregard of the

defendant’s rights.’’ (Internal quotation marks omitted.)

State v. Weaver, 85 Conn. App. 329, 353, 857 A.2d 376,

cert. denied, 271 Conn. 942, 861 A.2d 517 (2004). Here,

nothing in the record indicates that the state’s failure

to preserve useful photographic evidence of the condition of the doors was the result of any bad faith or

improper motive on the part of the state or law enforcement. Anderson testified that, as part of routine procedure, he took photographs of the main residence and the

apartment, including the apartment entry and bedroom

doors. He further testified that, for an unknown reason,

some of the photographs did not come out, but that

he had followed procedure and performed his duties

diligently. In ruling on the defendant’s oral motion

regarding the photographs, the court observed that the

defendant had received all evidence available to the

state, including any indiscernible photographs. Therefore, the defendant is unable to establish that the indiscernible photographs are the result of improper motive

or animus on the part of the state.

The final Asherman factor concerns the prejudice

caused to the defendant as a result of the unavailability
of evidence. ‘‘In measuring the degree of prejudice to

an accused caused by the unavailability of the evidence,

a proper consideration is the strength or weakness of

the state’s case, as well as the corresponding strength or

weakness of the defendant’s case.’’ (Internal quotation

marks omitted.) State v. Joyce, supra, 243 Conn. 303.

Under this analysis, the state had a strong case with

regard to the home invasion claim. Nicole Hart testified

that the defendant did not have permission to be in the

apartment, that the doors were locked when she and

Esposito went to sleep on October 26, 2014, and that

she awoke to the sound of her doors being forcefully

opened. Nicole Hart also testified that she told the

defendant, Joe Fox, and Labbe to leave the apartment

as they were punching and kicking Esposito. Further,

she testified that her doors sustained physical damage

on the night in question. In addition to Nicole Hart’s

testimony, Anderson, Thomas Hart, and Erika Berrios

all testified that they observed physical damage to the

doors of the apartment. Given the testimony of the

state’s witnesses, the state’s case was strong with regard

to whether the defendant unlawfully entered or unlawfully remained in the apartment. In contrast, the defendant presented one witness, Susan Delgado, who testified that she did not observe damage to the doors on

the day following the incident. The defendant also

extensively questioned Anderson on cross-examination

as to the reason for the indiscernible photographs. As

a result of the foregoing evidence, we cannot conclude

that the defendant was prejudiced as a result of the

unavailable evidence.

For the foregoing reasons, we conclude that the

defendant has failed to demonstrate that his right to

due process under the Connecticut constitution has

been violated by the state’s failure to produce discernible photographs of the doors at issue.

III

The defendant next claims that the trial court erred

in denying his request for an adverse inference jury

instruction related to the failure of the police to produce

discernable photographs of the apartment doors. We

disagree.

The following additional facts are relevant to our

analysis. At trial, the defendant filed a request to charge,

including a proposed instruction as to the indiscernible

photographs of the doorways and the investigation by

the police as a whole. The proposed instruction read

as follows: ‘‘Investigation which is thorough and conducted in good faith may be more credible while an

investigation which is incomplete, negligent, or in bad

faith may be found to have lesser value or no value at

all. In deciding the credibility of the witnesses and the

weight, if any, to give the prosecution evidence, consider whether the investigation was negligent and/or

conducted in bad faith. If the police inadequately inves-
tigated one matter, you may infer that the prosecution

also inadequately investigated other matters. Based on

this inference alone you may disbelieve the prosecution

witnesses and evidence. This may be sufficient by itself

for you to have a reasonable doubt as to the defendant’s

guilt.’’ The court heard from the parties before the

defendant presented his witness, Susan Delgado, and

noted that ‘‘I don’t know if it was negligent or not that

the picture didn’t come out because there are no facts

underlying it. . . . I can’t find an evidentiary basis to

say that it’s negligent that something didn’t come out.’’10

After hearing from Delgado, the court revisited the

defendant’s adverse inference instruction request and

noted that the defendant’s requested instruction ‘‘would

have to be based on some sort of evidence . . . that the

police were negligent in some way. [Susan Delgado’s]

testimony does not in any way indicate anything about

the police investigation really. . . . I’m going to decline

giving that instruction. I just don’t think there’s any

evidence there.’’

‘‘[T]o prevail on appeal, [the defendant] must show

both that the trial court abused its discretion in refusing

to give the adverse inference instruction on the [missing

evidence] and that it was more probable than not that

the failure to give the requested instruction affected the

result of the trial.’’ (Internal quotation marks omitted.)

State v. Johnson, 67 Conn. App. 299, 314, 786 A.2d 1269

(2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002).

‘‘Although an adverse inference instruction may be

appropriate under certain circumstances, a trial court

is not required to give an adverse inference instruction

in every case involving missing evidence.’’ (Internal quotation marks omitted.) Id.

We agree with the court’s determination that no factual basis existed for the specific charge requested by

the defendant. The record is devoid of any evidence

that the police investigation was incomplete or that, in

their investigation, the police had acted negligently or in

bad faith. Anderson testified that the police department

taught him how to take photographs using the camera.

He further testified that his responsibilities did not

include transferring the digital images for printing.

Anderson testified that he followed procedure, believed

he was diligent, and that sometimes the photographs

from investigations did not come out. He also testified

that part of his due diligence as a police officer includes

ensuring that photographs have been taken by

reviewing them. In this case, Anderson reviewed the

photographs at a later date, at which point he realized

three were indiscernible. The reason for the indiscernibility of the photographs remains unknown, but none

of the evidence adduced at trial attributes their condition to an incomplete, negligent, or bad faith police

investigation.

Even if we were to conclude that the court should
have delivered the requested instruction, we are persuaded in light of the evidence as a whole that its failure

to do so was harmless because the defendant has failed

to show that it was more probable than not that the

failure to give the requested instruction affected the

result of the trial. The state’s case included three eyewitnesses who testified that the apartment doors were

damaged after the incident. Additionally, Nicole Hart

and Esposito both positively identified the defendant

as one of the intruders and perpetrators of the assault.

In light of the ample evidence that the defendant entered

and remained unlawfully in the apartment, had the court

delivered the requested adverse inference instruction

to the jury, we do not agree that it is more probable

than not that the outcome of the trial would have been

different. Accordingly, we conclude that the court did

not err in denying the defendant’s requested adverse

inference jury instruction regarding the police investigation.

The judgment is reversed only as to the conviction

of conspiracy to commit assault in the first degree and

the case is remanded with direction to vacate the defendant’s conviction of that offense. The judgment is

affirmed in all other respects.

In this opinion the other judges concurred.

1 Pursuant to statutory mandatory minimum sentence provisions, the trial

court imposed a sentence of ten years of incarceration for the count of

home invasion, ten years for the count of conspiracy to commit home

invasion, and one year to serve for the counts of assault in the first degree

and conspiracy to commit assault in the first degree. The court ordered

each of the sentences to run concurrently to each other, for a total effective

sentence of ten years of incarceration.

2

‘‘[A] defendant can prevail on a claim of constitutional error not preserved

at trial only if all of the following conditions are met: (1) the record is

adequate to review the alleged claim of error; (2) the claim is of constitutional

magnitude alleging the violation of a fundamental right; (3) the alleged

constitutional violation . . . exists and . . . deprived the defendant of a

fair trial; and (4) if subject to harmless error analysis, the state has failed

to demonstrate harmlessness of the alleged constitutional violation beyond

a reasonable doubt.’’ (Emphasis in original; footnote omitted.) State v. Golding, supra, 213 Conn. 239–40; see also In re Yaisel R., supra, 317 Conn. 781

(modifying third prong of Golding by eliminating word ‘‘clearly’’ before

words ‘‘exists’’ and ‘‘deprived’’).

3 The United States Supreme Court recognized potential adverse collateral

consequences stemming from cumulative convictions such as delaying a

defendant’s eligibility for parole, increasing a sentence under a recidivist

statute for a future offense, impeaching a defendant’s credibility, or stigmatizing the defendant. Rutledge v. United States, 517 U.S. 292, 302, 116 S. Ct.

1241, 134 L. Ed. 2d 419 (1996)

4 The court in Wright extended our Supreme Court’s holding in State v.

Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), which established vacatur as

the proper remedy for double jeopardy violations resulting from the imposition of multiple sentences related to greater and lesser included offenses.

State v. Wright, supra, 320 Conn. 829.

5 The state also entered into evidence twenty-two photographs of the

crime scene, which were taken at a later date following the October 24,

2016 incident. Anderson did not take the twenty-two additional photographs

of the crime scene. The clarity of these photographs, State’s Exhibits 1A1U and 3A, was not in dispute at trial.

6 The state entered into evidence only three of the seven photographs

taken at the scene on October 26, 2014 (State’s Exhibits 6A, 6B, and 6C).

7 At trial, the defendant claimed that, had the photographs been discernible, they could have been exculpatory because they may have shown lack
of forced entry into the apartment. The state noted that forced entry is not

an element of a home invasion claim. The court noted that the defendant

had not provided any evidence in support of the fact that the photographs

would have been exculpatory.

8

In response to the defendant’s oral claim of a Brady violation, the court

noted, ‘‘if they handed over the discovery and you fully reviewed the discovery, and you saw that there were not pictures, something that you felt was

important, you didn’t address it with the state’s attorney?’’ The court further

noted, ‘‘[y]ou have what they have. You have an explanation, you may not

like what happened or you may feel that that’s wrong, you know, that you

cross-examined the police officer as to how did it happen, why did it happen.

You had that ability. You asked the questions. And so, I’m not left with any

evidence of any type of Brady violations at this point in time.’’

9 The due process clause provides in relevant part: ‘‘No person shall . . .

be deprived of life, liberty or property without due process of law . . . .’’

Conn. Const., art. I, § 8.

10 During the court’s colloquy with defense counsel, the court asked

whether the police have a duty to take photographs of a crime scene or if

they can use their discretion. The court appeared to draw a distinction

between whether the issue with the photographs was the result of negligent

conduct by the police or whether it was attributable to unknown technical

reasons, or in the court’s words, a ‘‘technical snag.’’ Defense counsel did

not appear to have a response as to whether a mere technical failure was

the cause of the indiscernible photographs, but responded that it was his

position that the police, through their training and experience, have a duty

to take and review on-scene photographs.