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State v. Devin M.
STATE OF CONNECTICUT v. DEVIN M.*
(AC 45999)
Alvord, Seeley and Palmer, Js.
Syllabus
Convicted of the crimes of sexual assault in the fourth degree and risk of
injury to a child, the defendant appealed. He claimed, inter alia, that the
trial court violated his right to due process under the state constitution
when it denied his pretrial motion to dismiss the charges against him, in
which he alleged that the police improperly failed to preserve and to collect
certain evidence. Held:
The defendant’s due process claim that the police failed to preserve the
contents of a certain clothes hamper, which was predicated on his claim
that the police failed to seize that hamper, failed as a matter of law, as the
failure by the police to collect and preserve that evidence did not implicate
the defendant’s right to due process pursuant to State v. Morales (232
Conn. 707).
The defendant was not deprived of his state constitutional right to due
process by the state’s failure to preserve certain evidence, namely, two
photographs, as all four factors of the balancing test set forth in State v.
Asherman (193 Conn. 695) weighed against the defendant with respect to
the lost photographs.
The trial court did not abuse its discretion by declining to engage in extensive
inquiry into an allegation of juror misconduct, as the inquiry it conducted
was adequate pursuant to State v. Brown (235 Conn. 502).
Argued September 17—officially released November 19, 2024
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the fourth degree and
risk of injury to a child, brought to the Superior Court
in the judicial district of Litchfield, geographical area
number eighteen, where the court, Pelosi, J., denied
the defendant’s motion to dismiss; thereafter, the case
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
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State v. Devin M.
was tried to the jury before Pelosi, J.; verdict and judgment of guilty, from which the defendant appealed to
this court. Affirmed.
Shanna P. Hugle, deputy assistant public defender,
for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were David R. Shannon, state’s
attorney, and Terri L. Sonnemann, senior assistant
state’s attorney, for the appellee (state).
Opinion
SEELEY, J. The defendant, Devin M., appeals from
the judgment of conviction, rendered after a jury trial,
of sexual assault in the fourth degree in violation of
General Statutes § 53a-73a (a) (1) (A)1 and risk of injury
to a child in violation of General Statutes § 53-21 (a)
(2). On appeal, the defendant claims that the trial court
(1) violated his right to due process under article first,
§ 8, of the Connecticut constitution, when it denied his
pretrial motion to dismiss the charges against him,2 in
which he alleged that the police improperly failed to
preserve and to collect certain evidence relating to
clothing recovered from the laundry hamper (hamper)3
in the victim’s bedroom, and (2) abused its discretion by
failing to conduct additional inquiry into an allegation
of juror misconduct. We disagree and, accordingly,
affirm the judgment of the court.
1
Although § 53a-73a was the subject of amendments in 2019 and 2023;
see Public Acts 2019, No. 19-16, § 16; Public Acts 2019, No. 19-93, § 10;
Public Acts 2023, No. 23-47, § 10; Public Acts 2023, No. 23-149, § 3; those
amendments have no bearing on the merits of this appeal. In the interest
of simplicity, we refer to the current revision of the statute.
2
As an alternative to dismissal, the defendant asked the court to suppress
the evidence or to permit the jury to draw an adverse inference against the
state for its failure to preserve evidence.
3
The object at issue was referred to as a ‘‘hamper’’ and ‘‘laundry basket’’
by different parties throughout the proceedings. For consistency in this
opinion, we refer to it as a hamper.
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State v. Devin M.
The jury reasonably could have found the following
facts based on the evidence and testimony presented.
In May, 2017, the defendant was a houseguest staying
at the eleven year old victim’s home in Thomaston,
where she lived with her mother, her father and her
older brother. The defendant’s and the victim’s families
were close—the defendant was a close friend of the
victim’s brother, the defendant’s mother was close
friends with the victim’s mother, and the families sometimes did activities together. The victim’s parents had
agreed to allow the defendant to stay with them, in the
bedroom of the victim’s brother, after the defendant
was ‘‘kicked out’’ of his girlfriend’s home. Late at night,
on May 19, 2017, the defendant entered the victim’s
bedroom after everybody else in the house had gone
to sleep. This woke the victim up, and the defendant told
her to ‘‘shush,’’ pulled down her pants and underwear,
pulled down his pants, and then placed his penis near
the crack of her buttocks. The defendant rubbed his
penis on the victim’s buttocks for a few minutes before
leaving the victim’s bedroom and going to the bedroom
of the victim’s brother, at which point the victim pulled
her pants up, curled up in a ball in the corner of her
bed for a time before she got up to change her clothes,
placed the clothes she was wearing4 into the hamper
in her room, and then went to the living room, where
her father was sleeping, to go back to sleep.
Approximately a week later, the victim disclosed
being sexually assaulted for the first time, telling her
best friend, J, that the defendant had come into her
room in the middle of the night and rubbed his penis
on her buttocks. J encouraged the victim to inform her
brother about what happened, which she did on May
26, 2017. The victim’s brother subsequently informed
their mother about what the victim had told him. The
4
The evidence established that the victim was wearing leggings and underwear at the time of the assault.
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State v. Devin M.
victim’s mother called the victim’s father to notify him,
and, although they decided to wait until he got home
from work to talk to the victim about it, the victim’s
mother ‘‘couldn’t hold it in anymore’’ and questioned
her alone. When asked, the victim told her mother that
the defendant had come into her room and sexually
assaulted her. Immediately after the victim made that
statement, the victim’s mother went to the home of the
defendant’s mother with the victim and informed the
defendant’s mother about what had happened. The
defendant’s mother then called the police. Around the
time the police arrived at the home, the victim’s father
arrived with the victim’s brother, and the victim was
eventually transported by ambulance to Saint Mary’s
Hospital in Waterbury for a medical examination, at
which her mother and father were present. At the hospital, the victim told hospital staff that the clothes she
was wearing during the sexual assault were still in the
hamper in her bedroom.
In the meantime, Detective Keith Koval of the Thomaston Police Department arrived at the home of the
defendant’s mother. He took a statement from the victim’s brother and then spoke on the phone with the
victim’s father, who told Koval about the clothes in the
hamper. Thereafter, Koval went to the victim’s home,
accompanied by the victim’s brother and, with the consent of the victim’s parents, entered the home to locate
evidence of the sexual assault, namely, the leggings and
underwear in the hamper in the victim’s bedroom that
she reported she was wearing at the time of the sexual
assault. Koval found and collected the leggings and
underwear from the hamper in the victim’s bedroom,
processed the evidence at the police department, and
then brought the evidence to the state laboratory for
forensic testing. He also collected a DNA sample from
the victim and obtained a search warrant to collect
DNA from the defendant.
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State v. Devin M.
At the state laboratory, forensic testing conducted
on a ‘‘whitish stained area’’ found by a forensic examiner on the victim’s underwear produced a positive reaction for semen, and a microscopic examination of the
area revealed the presence of spermatozoa. A DNA
extraction from that same area yielded a DNA mixture
of two persons, at least one of whom was male. The
defendant’s DNA profile was included within the male
DNA profile of the extracted DNA mixture. A forensic
examiner concluded from the DNA analysis, after
assuming that the victim was the other contributor, that
the DNA mixture was one hundred billion times more
likely to occur if it came from the defendant and the
victim, rather than from the victim and another
unknown individual in the general population.
The defendant was subsequently arrested and
charged in a long form information with sexual assault
in the fourth degree in violation of § 53a-73a (a) (1) (A)
and risk of injury to a child in violation of § 53-21 (a) (2).
A trial followed, at which the state presented testimony
from the victim; J; the victim’s brother; the victim’s
mother; Jason Paul Prevelige, the physician’s assistant
at Saint Mary’s Hospital who examined the victim; Danielle Williams, an expert on child forensic interviews;
Koval; Christine Roy, the state forensic examiner who
tested the clothing; and Jian Tao, the state forensic
analyst who conducted the DNA analysis. The defense
presented testimony from the defendant’s mother and
Nancy Eiswirth, an expert on investigation protocols
used in sexual assault cases involving child victims. At
the conclusion of trial, the jury found the defendant
guilty of both charges. On August 26, 2022, the court,
Pelosi, J., sentenced the defendant to a total effective
sentence of twenty years of incarceration, execution
suspended after nine years, five of which were a statutory mandatory minimum, and fifteen years of probation. It also ordered the defendant to register as a sexual
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State v. Devin M.
offender for a period of ten years. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
I
The defendant claims that the court violated his right
to due process under article first, § 8, of the Connecticut
constitution,5 when it denied his pretrial motion to dismiss the charges against him or, in the alternative, to
suppress evidence, in which he alleged that the police
improperly failed to preserve and to collect certain evidence relating to the leggings and underwear recovered
from the hamper in the victim’s bedroom. He asserts
that an order of remand for dismissal or a new trial is
warranted. We disagree.
The following additional facts and procedural history
are relevant to our resolution of this claim. When Koval
went to the victim’s home to locate the leggings and
underwear that she was wearing during the sexual
assault, the victim’s brother directed him to the victim’s
bedroom. On entering the victim’s bedroom, Koval
located the hamper and took a photograph of ‘‘the hamper itself.’’ After taking that photograph, Koval put
gloves on and moved other clothes in the hamper to
the side to search for the leggings and underwear. Koval
testified that, while he was searching through the hamper, he saw ‘‘typical girl’s laundry, underwear, socks,
shirts’’ but that he was not really paying attention to
the other clothes inside of it, nor did he collect anything
else as evidence from the hamper or the rest of the
home. He did not take a photograph of any of the other
items in the hamper. After finding the leggings and
underwear in the hamper,6 he collected them and
5
Article first, § 8, of the Connecticut constitution provides in relevant
part: ‘‘No person shall be . . . deprived of life, liberty or property without
due process of law . . . .’’
6
Koval described the state of the leggings and underwear in the hamper
as being ‘‘together, the underwear [was] inside of the pants.’’
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State v. Devin M.
brought them to the police station for processing, where
he took a photograph of the leggings. He then separated
the leggings and the underwear and placed each item
into its own evidence bag. Thereafter, the clothing was
brought to the state laboratory for testing. Subsequently, both of the photographs taken by Koval—one
of the hamper taken in the victim’s room and one of
the leggings taken at the police station—were lost when
he attempted to transfer them from his camera to a
computer at the police department.7
Prior to trial, on May 2, 2022, the defendant filed a
motion to dismiss the charges against him, or alternatively, to suppress the evidence from the hamper ‘‘and
the ‘poison fruit’ results of any forensic testing performed upon the seized clothing,’’ pursuant to State v.
Morales, 232 Conn. 707,
657 A.2d 585 (1995), based on
the failure of law enforcement to collect and preserve
evidence. Specifically, in his motion to dismiss the
defendant argued that Koval’s failure to ‘‘preserve the
hamper and its contents’’ was a violation of his right to
due process under the state constitution. The defendant
further argued that the evidence in question was exculpatory given the defense’s theory of DNA transfer—
that the other contents of the hamper, if preserved,
could have exonerated the defendant because, if any
of the uncollected clothes in the hamper belonged to
the defendant, that could have provided an explanation
for how his DNA transferred onto the victim’s clothing.
On May 20, 2022, the court held an evidentiary hearing
and heard oral argument on the defendant’s motion.
When asked during cross-examination by defense counsel to explain the
7
process of how the photographs were lost, Koval testified: ‘‘The SD card
was taken from the camera, put into a card reader, which was attached to
the computer. . . . And when the [police] sergeant went to transfer them,
there must have been a faulty SD card or SD reader.’’ Koval also stated
that he did not report the loss of the photographs or make any efforts to
recover them.
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State v. Devin M.
The defendant called Koval as a witness and argued
that the failure to collect and preserve the contents of
the hamper and the loss of the two photographs taken
by Koval deprived him of material evidence and the
opportunity to fully present his DNA transfer defense
because (1) other items in the hamper could not be
tested for the defendant’s DNA and (2) neither the jury
nor the defense would be able to see the state of the
hamper’s contents from Koval’s position at the time he
seized evidence from it. In response, the state argued
that Morales and its progeny pertain to claims regarding
the preservation of evidence that is lost or destroyed,
not claims that law enforcement failed to preserve evidence that it never collected. The state also argued
that the other contents of the hamper could not be
considered material evidence because whether such
evidence would have benefitted the defendant was
speculative and that any failure to preserve evidence
by Koval was not done in bad faith.
The court orally denied the defendant’s motion on
the first day of trial, May 24, 2022, and subsequently
issued a memorandum of decision dated June 29, 2022.8
The court applied the four factor 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), to determine whether
Koval’s failure to preserve the contents of the hamper,
the photograph of the hamper and the photograph of
the leggings, violated the defendant’s state constitutional right to due process. Specifically, the court considered ‘‘[1] the materiality of [the] missing evidence,
[2] the likelihood of mistaken interpretation of the missing . . . evidence by witnesses or the jury, [3] the reason for [the] nonavailability [of the evidence], [and] [4]
8
The court incorporated the findings of its oral decision into its memorandum of decision.
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State v. Devin M.
the prejudice to the defendant caused by the unavailability of the evidence.’’ The court applied each factor
to the defendant’s claims regarding the contents of the
hamper and the lost photographs.
As to the contents of the hamper, the court determined that, (1) ‘‘even assuming that the defendant’s
DNA was transferred to the [victim’s] underwear
through commingling in the hamper, this is not [material
because it is not] dispositive of the charges the defendant faces [and] [i]ndeed, the [victim] has stated to a
number of people, including medical personnel, police
officers, and constancy witnesses that she was
assaulted by the defendant’’; (2) ‘‘there is little likelihood of mistaken interpretation, as the defendant will
have the opportunity to cross-examine [Koval] concerning the collection of the DNA evidence . . . and the
decision to not test the other contents in the hamper’’;
(3) ‘‘there was no improper motive or bad faith on the
part of . . . Koval . . . [and] at the time the evidence
was seized, it was unclear if it would yield any useful
information [and] [f]urther, it was outside of the state’s
purview that failing to test and photograph all of the
items in the hamper may yield some injustice to the
defendant’’; and (4) ‘‘[t]he defendant . . . will not suffer substantial prejudice by way of the missing evidence. The court can address any potential prejudice
that this evidence will have on the defendant by
allowing the defendant to cross-examine the state’s witnesses and by allowing the defendant to focus on the
state’s failure to preserve the other contents of the
hamper in his closing argument. Additionally, the court
could provide the jury with a limiting instruction or an
instruction concerning the weight they are permitted
to give to certain evidence.’’
Regarding the lost photographs, the court held that
(1) ‘‘the defendant is unable to show that there is a
reasonable probability that, had the photo[graph] taken
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State v. Devin M.
by . . . Koval of the [victim’s] hamper been preserved,
the result of the present proceeding would be different
[and] [i]t is speculative that the photograph taken by
. . . Koval, alone, would be exculpatory’’; (2) ‘‘there
is little likelihood of mistaken interpretation, as the
defendant will have the opportunity to cross-examine
the state’s witnesses concerning . . . the missing photograph’’; and (3) ‘‘the loss of the photograph was unintentional and was not done in bad faith or with malice.’’
At trial, the defendant’s theory of the case was that
there were communal hampers in the victim’s home
and, therefore, his DNA could have become commingled with the victim’s DNA. The defense attempted to
advance his theory by cross-examining the victim’s
brother and her mother about how laundry was typically
done in the home.9 Defense counsel also extensively
cross-examined Koval about his investigation of the
home—including whether he was concerned about the
possibility of DNA transfer—and about the loss of the
photographs. In addition, the defense called the defendant’s mother as a witness and elicited testimony concerning her knowledge of the location and use of hampers in the victim’s home.10 Defense counsel continued
9
The victim’s brother and her mother both testified, however, that the
hampers in the home were not communal. The victim’s mother testified
that ‘‘we each have our own [hampers] in our bedrooms.’’ Likewise, the
victim testified that each member of her family had a hamper that was a
different color and that ‘‘everyone’s clothes were kept separate.’’ She
described her hamper as being white, tall and circular and further testified
that it was for her room only.
10
The defendant’s mother testified that she ‘‘frequently’’ visited the victim’s
home and would assist with household chores, including laundry, due to
the close relationship between her and the victim’s mother, that she never
observed any effort in the victim’s home to keep the laundry for each resident
of the home separate, and that the hampers were not exclusive to any
particular room in the home. She also testified, however, that from the date
of the sexual assault to the date it was first reported, she did not assist
with laundry in the victim’s home and that she had stated she would stand
by her son the morning after learning about the assault.
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State v. Devin M.
reinforcing the theory of commingling and DNA transfer
during closing argument by arguing that the victim’s
account that she did not feel anything wet on her buttocks was inconsistent with the presence of the defendant’s bodily fluids on her underwear. Defense counsel
also asked the jury if it was reasonable to believe that
the evidence remained in the hamper for eight days
without contamination and stated that the DNA analysis
cannot explain how, when or in what order the defendant’s genetic materials ended up in the hamper.
Defense counsel also challenged the adequacy of the
police investigation through his cross-examination of
Koval and in his closing argument. As a result, the
court gave an instruction on the adequacy of the police
investigation to the jury, which included an instruction
regarding the failure of the police to adequately preserve and document evidence relating to the contents
of the hamper and their failure to preserve the two
photographs.11
We next set forth the relevant standard of review and
principles of law that govern this claim. ‘‘[O]ur Supreme
11
The court’s jury instruction stated in relevant part: ‘‘You have heard
some testimony of witnesses and arguments by counsel that the state did
not adequately preserve and document evidence relative to lost photographs
and the documentation of the hamper and its contents. This is a factor that
you may consider in deciding whether the state has met its burden of proof
in this case, because the defendant may rely on relevant deficiencies or
lapses in the police investigation to raise reasonable doubt. Specifically,
you may consider whether a failure to adequately preserve and document this
evidence would normally be . . . taken under the circumstances. Whether
if these actions were taken, they could reasonably have been expected to
lead to significant evidence of the defendant’s guilt or evidence creating a
reasonable doubt of his guilt and whether there are reasonable explanations
for the admission of those actions. If you find that any omission[s] in the
investigation were significant and not reasonably explained, you may consider whether the omissions tend to affect the quality, reliability or credibility
of the evidence presented by the state to prove beyond a reasonable doubt
that the defendant is guilty of the counts with which he is charged in the
information. The ultimate issue for you to decide, however, is whether the
state, in light of all the evidence before you, has proved beyond a reasonable
doubt that the defendant is guilty of the counts for which he is charged.’’
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State v. Devin M.
Court has set forth the analytical path for determining
whether the failure of the police to preserve evidence
constitutes a due process violation under our state constitution. In [Morales], the court expressly rejected the
federal standard of Arizona v. Youngblood, 488 U.S. 51,
58,
109 S. Ct. 333,
102 L. Ed. 2d 281 (1988).12 The court
in Morales held that ‘the good or bad faith of the police
in failing to preserve potentially useful evidence cannot
be dispositive of whether a criminal defendant has been
deprived of due process of law. . . . Rather, in
determining whether a defendant has been afforded
due process of law under the state constitution, the
trial court must employ the [Asherman] balancing test,
weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused.
More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: [(1) the materiality of the missing evidence, (2) the likelihood of
mistaken interpretation of it by witnesses or the jury,
(3) the reason for its nonavailability to the defense,
and (4) the prejudice to the defendant caused by the
unavailability of the evidence.]’ . . . ‘[P]olice [are not
required] to preserve every shred of physical evidence,
every object . . . [seized] from a crime scene, no matter how remote or tangential to the case the item seems
to be. The . . . court should . . . [consider] the reason for the unavailability of an item of evidence, as
well as the motivation and good or bad faith of the
police in failing to preserve that evidence.’ ’’ (Citations
omitted; footnote in original.) State v. Thompson, 128
Conn. App. 296, 301–303,
17 A.3d 488 (2011), cert.
denied, 303 Conn. 928,
36 A.3d 241 (2012).
12
‘‘In Arizona v. Youngblood, supra,488 U.S. 58, the United States Supreme
Court stated: ‘We therefore hold that unless a criminal defendant can show
bad faith on the part of the police, failure to preserve potentially useful
evidence does not constitute a denial of due process of law.’ ’’ State v.
Thompson, 128 Conn. App. 296, 302 n.1,
17 A.3d 488 (2011), cert. denied,
303 Conn. 928,
36 A.3d 241 (2012).
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State v. Devin M.
‘‘[W]hether [the circumstances] constituted a violation of the [defendant’s right to due process] is a mixed
determination of law and fact that requires the application of legal principles to the historical facts of the case.
. . . Whether the historical facts as found by the [trial]
court constituted a violation of the [defendant’s right
to due process] is subject to plenary review by this
court, unfettered by the clearly erroneous standard.’’
(Internal quotation marks omitted.) State v. Gray, 212
Conn. App. 193, 206–207,
274 A.3d 870, cert. denied,
343 Conn. 929,
281 A.3d 1188 (2022).
A
We first address the defendant’s claim as it pertains
to the failure of law enforcement to preserve the contents of the hamper. Particularly, the defendant claims
that Koval’s failure to preserve ‘‘uncollected evidence’’—the contents of the hamper at the time he
searched it—violated the defendant’s right to due process. We disagree.
Both the state and the defendant analyzed this issue
in their appellate briefs pursuant to Morales and by
applying the Asherman balancing test. The state, however, also advanced the argument that ‘‘Koval’s alleged
failure . . . did not implicate the defendant’s due process right under Morales because it relates to the creation, not preservation, of evidence.’’ The defendant
claims that this argument constitutes an improper alternative ground for affirmance, which is not supported
by the record, and that Koval ‘‘had an obligation to
preserve the evidence inside the hamper, which was
under his possession and control at the time that he
seized the [victim’s] clothing.’’ After considering the
arguments of the state and the defendant on this issue,
we agree with the state that any failure by law enforcement in this case to collect and preserve the contents
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State v. Devin M.
of the hamper does not implicate the defendant’s right
to due process.
The defendant argues that we are barred from
affirming the court’s decision on this ground because
nothing in the record establishes that such reasoning
was an alternative ground for the court’s denial of the
defendant’s due process claim. This assertion, however,
ignores the fact that our review of the court’s conclusions regarding ‘‘[w]hether the historical facts . . .
constituted a violation of the [defendant’s right to due
process]’’ is plenary. (Internal quotation marks omitted.) State v. Gray, supra, 212 Conn. App. 206–207; see
also Council v. Commissioner of Correction, 114 Conn.
App. 99, 103 n.1,
968 A.2d 483 (‘‘[a]n allegation of a
violation of due process . . . is a question of law’’),
cert. denied, 292 Conn. 918,
973 A.2d 1275 (2009). It
follows that the same standard of review applies when
determining whether the historical facts of a case implicate a defendant’s right to due process because for
conduct to constitute a violation of an individual’s due
process rights, it must implicate those rights in some
tangible way. See State v. Collymore, 334 Conn. 431,
477, 485,
223 A.3d 1 (applying plenary review to defendant’s due process claim based on admission of identification testimony and rejecting claim because testimony
‘‘did not implicate the defendant’s due process rights’’
(emphasis added)), cert. denied, U.S. , 141 S.
Ct. 433,
208 L. Ed. 2d 129 (2020). Therefore, we reject
the defendant’s contention that we cannot affirm the
judgment of conviction on this basis because, regardless of whether the trial court relied on it as an alternative ground for its decision, our plenary standard of
review over this issue entitles us to determine, as a
matter of law, whether the conduct at issue implicated
the defendant’s right to due process under Morales. If
it did, application of the Asherman balancing test is
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State v. Devin M.
appropriate, but if it did not, the defendant’s due process claim regarding the contents of the hamper must
fail outright. See State v. Johnson, 288 Conn. 236, 281,
951 A.2d 1257 (2008) (rejecting defendant’s due process
claim brought pursuant to Morales without applying
Asherman test because defendant did ‘‘not adequately
[allege] a failure to preserve . . . thus, Youngblood and
Morales [were] not applicable’’ and ‘‘no need for the
Morales remedies ever arose’’).
To resolve this claim, we therefore first must determine whether the claim that Koval failed to collect and
preserve the entire contents of the hamper as evidence
is an allegation that sufficiently implicates the defendant’s due process rights under Morales. ‘‘[I]t is well
established that there are two areas of constitutionally
guaranteed access to evidence such that denying or
foreclosing the defendant’s access to that evidence may
constitute a due process violation. . . . The first situation concerns the withholding of exculpatory evidence
by the police from the accused. . . . The second situation . . . concerns the failure of the police to preserve
evidence that might be useful to the accused.’’ (Citations omitted; emphasis omitted; internal quotation
marks omitted.) Id., 275–76. The defendant claims that
Koval’s failure to collect and preserve the entire contents of the hamper as evidence is encompassed by the
second situation.
Significantly, Johnson involved a similar claim,
namely, that law enforcement’s failure to record the
entirety of an interview with a state’s witness violated
the defendant’s right to due process. Id., 270. In that
case, our Supreme Court clarified that ‘‘Morales and
Youngblood address the ‘preservation’ of evidence, not
the collection and creation of evidence’’ and ‘‘conclude[d] that the duty to preserve with which Morales
and Youngblood are concerned depends on the [state’s]
possession of evidence capable of being preserved.’’
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(Emphasis added.) Id., 279. The court further noted that
‘‘a review of our case law generally reveals nothing
. . . that would support the existence of an affirmative
duty to create evidence . . . .’’ (Emphasis added.) Id.
Our Supreme Court, therefore, rejected the defendant’s
claim that ‘‘police officers ha[ve] a duty to record the
entirety of their interviews with [state’s witnesses] and
that [the] failure to do so constitute[s] a failure to preserve evidence within the meaning of Morales and
Youngblood.’’ Id., 278. As a result, the court concluded
that ‘‘the state did not violate the defendant’s due process rights, as a matter of law,’’ and, in doing so, it
denied the due process claim without any application
of the Asherman balancing test. Id., 281.
More recently, this court relied on Johnson in
rejecting ‘‘an analogous claim’’ that ‘‘[a law enforcement
officer’s] decision to turn off his body microphone so
that his conversation with [another law enforcement
officer] was never recorded is, in essence, the legal
equivalent of the state failing to preserve or destroying
evidence’’ within the meaning of Morales and Youngblood. State v. Bouvier, 209 Conn. App. 9, 35,
267 A.3d
211 (2021), cert. denied,
341 Conn. 903,
269 A.3d 789
(2022). In Bouvier, we determined that ‘‘[a] trooper’s
choice not to record audio of a consultation between
himself and another law enforcement officer did not
result in the creation of evidence that was capable of
either preservation or destruction’’ and, thus, the ‘‘basic
factual predicate underlying the alleged due process
violation [was] missing . . . .’’ Id., 39. Accordingly, we
rejected the defendant’s due process claim in Bouvier
without applying the Asherman balancing test.
Importantly, our holding in Bouvier recognized that,
generally, procedures amounting to ‘‘administrative
directives or best practices’’ do not ‘‘[create] any cognizable due process interest in the defendant as might
be the case with a duly enacted statute or properly
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promulgated regulation’’; id., 38; and that, as ‘‘the
[Supreme] [C]ourt in Johnson made clear, the due process clause is not implicated by a claim that, in the
absence of an express legal duty to do so, the state
failed to collect or create certain evidence.’’ (Emphasis
added.) Id., 37–38.13
In the present case, the evidence in the record persuades us that Koval’s failure to collect and preserve
the contents of the hamper as evidence did not implicate
the defendant’s right to due process under Morales. We
also conclude that we need not apply the Asherman
balancing test in such circumstances, as the alleged
failure to preserve, which was predicated on a failure
to collect or to create evidence, did not implicate the
defendant’s right to due process.14 The record in this
case shows that Koval never seized the contents of
the hamper, meaning those contents were never in his
possession, and the defendant acknowledges as much
in his appellate brief on the issue when he refers to
the contents of the hamper as ‘‘uncollected evidence.’’
(Emphasis added.) Therefore, the defendant cannot
demonstrate that the state was in possession of the
contents of the hamper but failed to preserve them,
which is required to show a due process violation under
13
See also State v. Beckerman, 145 Conn. App. 767,
85 A.3d 655 (2013),
cert. denied, 311 Conn. 938,
89 A.3d 349 (2014). In Beckerman, we noted
in dicta that the defendant’s due process claim in an arson prosecution,
namely, that ‘‘the state had a duty to preserve for testing a sample of the
area around the furnace [in the home that caught fire] where [the canine
belonging to the fire marshal detective investigating the scene] alerted to
the presence of accelerants’’; id., 774; rested ‘‘on the premise that the state
has a duty to collect evidence, rather than simply to preserve evidence that
has been collected in the course of an investigation’’; (emphasis in original)
id., 777 n.6; and we rejected the claim because it did not challenge the trial
court’s finding that there was no bad faith. Id., 777.
14
Additionally, the defendant’s reference in his appellate brief to ‘‘best
practices’’ in evidence gathering is immaterial because the defendant has
failed to demonstrate that any of these ‘‘best practices’’ created a ‘‘cognizable
due process interest’’ in him. State v. Bouvier, supra,209 Conn. App. 38.
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Morales. See State v. Johnson, supra,288 Conn. 279.
15
As we have stated, this court and our Supreme Court
have recognized that Morales does not apply to ‘‘the
collection . . . of evidence’’; id.; and the defendant has
provided no support for his claim that law enforcement
officers possess an affirmative constitutional duty to
collect evidence. Thus, we conclude that the conduct
at issue in the present case does not implicate the defendant’s right to due process under Morales.16 The defendant’s due process claim, therefore, fails as a matter
of law.
15
We find the defendant’s argument that the state was obligated to preserve
the entire contents of the hamper because they were in Koval’s possession
and under his control at the time of his search to be without merit for a
number of reasons. First, the defendant did not provide any authority to
support his proposition that the state is considered to be in possession of
containers that law enforcement officers search but do not seize. Second,
applying the defendant’s proposed logic to commonplace scenarios involving
law enforcement would defy practicality. See State v. Johnson, supra, 288
Conn. 279–80 (declining to adopt rule proposed by defendant because
‘‘[t]here is a need by law enforcement personnel for considerable flexibility
in how they go about their investigations, and courts should not intrude
into this area,’’ and ‘‘the adoption of such a rule would place a substantial
burden on the administration of law enforcement and would amount to an
unwarranted intrusion by the courts into the professional practices chosen
by our trained law enforcement personnel’’ (internal quotation marks omitted)). For instance, under the defendant’s logic, law enforcement officers
who exercise control over a home while executing a search warrant would
be in possession of the home, which would then entail an obligation to
preserve the entire contents of the home as evidence. Such a result would
clearly be impractical and more importantly, would also be contrary to our
Supreme Court’s recognition in Morales that ‘‘the Asherman test does not
require the police to preserve every shred of physical evidence, every object
it seizes from a crime scene, no matter how remote or tangential to the
case the item seems to be.’’ State v. Morales, supra,232 Conn. 723.
16
We note that a majority of the states that have reached this issue have
likewise determined that constitutional due process requirements do not
impose on law enforcement officers a duty to collect evidence. See, e.g.,
People v. Fultz, 69 Cal. App. 5th 395, 425,
284 Cal. Rptr. 3d 515 (2021) (‘‘[D]ue
process does not require the police to collect particular items of evidence.
. . . The police cannot be expected to gather up everything which might
eventually prove useful to the defense.’’ (Internal quotation marks omitted.));
State v. Stepter, 794 S.W.2d 649, 655 (Mo. 1990) (‘‘[t]he state is not bound
to gather and present all physical evidence conceivably germane to its [case-
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B
We next address the defendant’s claim as it pertains
to the failure of police to preserve the two photographs
in-chief]’’ nor ‘‘is [it] required to account for its failure to gather or present
such evidence’’ (internal quotation marks omitted)); Taylor v. State, 375
Mont. 234, 238,
335 P.3d 1218 (2014) (‘‘[p]olice officers have no duty to take
initiative or even assist in procuring evidence on behalf of a defendant’’);
Belcher v. State, 136 Nev. 261, 272,
464 P.3d 1013 (2020) (‘‘[p]olice officers
generally have no duty to collect all potential evidence from a crime scene’’
(internal quotation marks omitted)); State v. Ware, 118 N.M. 319, 323,
881
P.2d 679 (1994) (‘‘the failure to gather evidence is not the same as the failure
to preserve evidence, and . . . the [s]tate generally has no duty to collect
particular evidence at the crime scene’’); State v. Steffes, 500 N.W.2d 608,
612 (N.D. 1993) (‘‘[p]olice generally have no duty to collect evidence for
the defense’’); State v. Young, 176 N.E.3d 1074, 1106 (Ohio App. 2021) (‘‘the
state has no duty to gather exculpatory evidence’’), review denied, 165 Ohio
St. 3d 1505,
179 N.E.3d 122 (2022); State v. Pemental,
434 A.2d 932, 936 (R.I.
1981) (no due process violation in sexual assault case where defendant
claimed law enforcement ‘‘fail[ed] to seize the bed linen of the victim and
to have the linen scientifically analyzed’’). Although a few states have indicated that this rule is not absolute; see, e.g., People ex rel. Gallagher v.
District Court, 656 P.2d 1287, 1291 (Colo. 1983) (‘‘police investigators have
no general duty to search out possible exculpatory evidence or to perform
tests . . . however . . . when evidence can be collected and preserved in
the performance of routine procedures by state agents . . . the state must
employ regular procedures to preserve evidence which a state agent, in
the regular performance of his duties, could reasonably foresee might be
favorable to the accused’’ (citations omitted)); State v. Hayes, 203 Vt. 153,
160,
154 A.3d 964 (2016) (‘‘even though police do not have a duty to collect
all potentially exculpatory evidence, [a state law remedy may] apply in
situations where the [s]tate’s failure to procure potentially exculpatory evidence results in prejudice—for example, failing to procure a bloody knife
lying next to a body in a murder case’’ (emphasis in original)); only a minority
of states, Alaska and Kentucky among them, have adopted a contrary rule.
See Snyder v. State, 930 P.2d 1274, 1277 (Alaska 1996) (state rules of criminal
procedure impose affirmative duty on state to collect ‘‘material’’ evidence
(emphasis in original; internal quotation marks omitted)); Collins v. Commonwealth, 951 S.W.2d 569, 572 (Ky. 1997) (applying Youngblood to due
process claim that state failed to collect evidence).
Federal courts, however, have reached differing conclusions on the issue.
Compare Miller v. Vasquez, 868 F.2d 1116, 1119–20 (9th Cir. 1989) (noting
that government’s duty to preserve evidence does not impose duty to obtain
evidence but nonetheless ‘‘hold[ing] that a bad faith failure to collect potentially exculpatory evidence would violate the due process clause’’), with
United States v. Roper, Docket No. 1:23-cr-1617 (WJ), 2024 WL 3688266, *2
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that Koval took of the hamper and the leggings, to which
the Asherman balancing test applies.
The first Asherman factor involves the materiality of
the missing evidence. ‘‘The evidence is material only if
there is a reasonable probability that, had the evidence
been disclosed [or available] to the defense, the result
of the proceeding would have been different. . . . 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.’’ (Citation omitted; emphasis omitted; internal quotation marks omitted.) State v. Fox, 192 Conn. App. 221,
237–38, 217 A.3d 41, cert. denied,
333 Conn. 946,
219
A.3d 375 (2019). The defendant argues that the lost
photographs were material based on his theory of the
case because ‘‘the lack of photographic documentation
undermined any ability to observe the hamper, its condition and contents or any other missed details,’’ and the
‘‘[m]ovement of the [victim’s] clothing during Koval’s
seizure could have been a source of [DNA] transfer.’’
(Emphasis added.) Therefore, he argues, the ‘‘court
. . . had insufficient information . . . without photographs’’ to reach conclusions regarding the location of
the leggings and underwear when Koval found them.
We are not persuaded that there is a reasonable probability that, had the photograph of the hamper located
in the victim’s room and the photograph of the leggings
taken at the police station been available to the defendant, the result of the proceeding would have been
(D.N.M. August 7, 2024) (‘‘the [d]ue [p]rocess [c]lause is not violated if law
enforcement simply fails to collect evidence’’); White v. Tamlyn, 961 F. Supp.
1047, 1062 n.12 (E.D. Mich. 1997) (characterizing Miller as ’’an aberration
and the law only in the Ninth Circuit’’); Colon v. Kuhlmann, Docket No.
87-CIV. 2980 (MGC), 1988 WL 61822, *5 (S.D.N.Y. June 3, 1988) (failure to
collect rape victim’s underwear did not violate due process because ‘‘due
process clause . . . does not require that particular evidence be gathered’’),
aff’d, 865 F.2d 29 (2d Cir. 1988).
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different. The lost photographs, as described in the
record, would have shown nothing more than ‘‘the hamper itself’’ before Koval searched it and the state of
the victim’s leggings and underwear before they were
separated, placed into evidence bags and sent to the
state laboratory. Thus, we conclude that the defendant
cannot establish the materiality of the two lost photographs, and, therefore, the first Asherman factor weighs
in favor of the state.17
The second Asherman factor requires us to consider
the likelihood of mistaken interpretation of the missing
evidence by witnesses or the jury. ‘‘This court . . . has
held that [m]istaken interpretation can be minimized at
the trial by permitting testimony on the issue’’; (internal
quotation marks omitted) State v. Gray, supra, 212
Conn. App. 211; or ‘‘by an appropriate instruction from
the court permitting the jury to draw an adverse inference against the state.’’ (Internal quotation marks omitted.) State v. Jones, 50 Conn. App. 338, 357–58,
718 A.2d
470 (1998), cert. denied,
248 Conn. 915,
734 A.2d 568
(1999). The defendant argues that, ‘‘[a]lthough [he] was
able to cross-examine the state’s witnesses [about the
lost photographs], that testimony did not minimize the
significance of the missing evidence or the risk of mistaken interpretation’’ because ‘‘[t]he jury also heard
conflicting and vague testimony from Koval about the
contents of the hamper.’’
17
The defendant’s argument that the lost photographs of either the hamper
or the leggings could have supported a theory of DNA transfer is misplaced
because photographs of the ‘‘hamper itself’’ and the leggings do not do
anything to further that theory. Indeed, such a purely speculative argument
is not sufficient to show a reasonable probability that the result of the
proceeding would have been different if the photographs were available.
See State v. Barnes, 127 Conn. App. 24, 33,
15 A.3d 170 (2011) (first Asherman
factor weighed against defendant who argued that lost audio recordings
‘‘were the only piece of evidence that ‘could have’ proven [his] guilt or
innocence’’ because ‘‘mere speculation that the tapes could have been beneficial or not simply does not meet the standard necessary to prove materiality’’
(emphasis in original)), aff’d, 308 Conn. 38,
60 A.3d 256 (2013).
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Here, the court permitted defense counsel to engage
in extensive cross-examination of Koval regarding the
lost photographs,18 which elicited a description of how
they were lost, and he also referenced Koval’s inadequate and incomplete investigation and the lost photographs several times during closing argument, claiming
that Koval tainted the investigation in an attempt to
raise reasonable doubt in the minds of the jurors.
Finally, the court gave the jury a detailed instruction19
addressing the lost photographs that included the following language: ‘‘If you find that any omission[s] in
the investigation were significant and not reasonably
explained, you may consider whether the omissions
tend to affect the quality, reliability or credibility of
the evidence presented by the state to prove beyond a
18
For example, during defense counsel’s cross-examination of Koval, the
following exchange occurred:
‘‘[Defense Counsel]: Okay. So, what did you do [after learning that the
photographs were lost]?
‘‘[Koval]: I didn’t do anything at that point.
‘‘[Defense Counsel]: Okay. You didn’t complete a supplemental report
documenting the fact that this evidence had been lost?
‘‘[Koval]: Not at that point, no.
‘‘[Defense Counsel]: Okay. At any point in time did you author a police
report documenting the loss of those photographs?
‘‘[Koval]: No.
‘‘[Defense Counsel]: Did you take that SD card or that camera and send
it up to the state lab in an effort to recover these photos?
‘‘[Koval]: No.
‘‘[Defense Counsel]: So, the only documentation of that hamper—did you
do anything else to document that hamper in the position it was in?
‘‘[Koval]: No.
‘‘[Defense Counsel]: So, the only documentation of that—of that hamper, in
that position where it was, has been lost?
‘‘[Koval]: Correct.
‘‘[Defense Counsel]: And no effort was made to try and recover those
photos, correct?
‘‘[Koval]: Not at that time, no.
‘‘[Defense Counsel]: And no documentation was made regarding that loss
of evidence?
‘‘[Koval]: Correct.’’
19
See footnote 11 of this opinion.
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reasonable doubt that the defendant is guilty of the
counts with which he is charged in the information.’’
On the basis of the record in this case, including the
testimony that described the content of the photographs
and how they were lost, it is not likely that the jury
was misled by the missing photographs, as it was presented with ample testimony and an instruction concerning the missing photographs. See State v. Fox,
supra,192 Conn. App. 240 (second Asherman factor
weighed in favor of state ‘‘[g]iven the ample testimony
regarding the missing photographs’’); State v. Barnes,
127 Conn. App. 24, 33–34,
15 A.3d 170 (2011) (same
where defendant was ‘‘provided wide leeway’’ in cross-examination about missing evidence and ‘‘used the
missing [evidence] as a means of attempting to raise
reasonable doubt in the mind of the jury during closing
argument’’), aff’d, 308 Conn. 38,
60 A.3d 256 (2013).
We therefore conclude that the likelihood of mistaken
interpretation of the missing evidence at trial was minimal and that this factor weighs in the state’s favor.
The third Asherman factor concerns the reason for
the nonavailability of the evidence. ‘‘In weighing the
third Asherman factor . . . our cases have focused on
the motives behind the destruction of the evidence.
. . . In examining the motives . . . our courts have
considered such factors as whether the destruction was
deliberate and intentional rather than negligent . . . or
done in bad faith or with malice . . . or with reckless
disregard . . . 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. Gray, supra, 212
Conn. App. 212.
The defendant concedes that there is no evidence of
bad faith by law enforcement here but, nonetheless,
argues that this factor weighs in his favor because
‘‘Koval’s gross indifference in the . . . preservation of
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the evidence . . . result[ed] in a fundamentally unfair
trial.’’ Given the defendant’s concession that there was
no evidence that Koval acted with bad faith in his handling of the lost photographs, we conclude that this
factor weighs in favor of the state.20 See State v. Fox,
supra,192 Conn. App. 241 (third Asherman factor
weighed in favor of state because defendant was
‘‘unable to establish’’ that missing evidence was due to
‘‘improper motive or animus’’); State v. Barnes, supra,127 Conn. App. 34 (same where defendant conceded
lack of evidence of bad faith).
The final Asherman factor requires consideration of
the prejudice caused to the defendant due to the
20
Despite acknowledging the lack of evidence of bad faith here, the defendant attempts to support his claim on appeal by arguing that Koval acted
with ‘‘gross indifference’’ with respect to the preservation of evidence at
the crime scene. Unlike a reference to bad faith, malice, or even gross
negligence, the defendant’s reference to ‘‘gross indifference’’ does not invoke
a legal term of art commonly used by Connecticut courts in any context.
Nevertheless, based on the arguments made by the defendant, we do not
view the claimed ‘‘gross indifference’’ as rising to the same level of severity
as conduct undertaken maliciously, or with bad faith or reckless indifference,
of which the Asherman test requires consideration. Rather, we view the
defendant’s claim of ‘‘gross indifference’’ as invoking conduct more akin to
ordinary, or gross, negligence. See Rubel v. Wainwright, 86 Conn. App. 728,
741,
862 A.2d 863 (‘‘[r]ecklessness . . . is more than negligence and also
is more than gross negligence’’), cert. denied, 273 Conn. 919,
871 A.2d 1028
(2005); see also State v. Gray, supra, 212 Conn. App. 214–15 (finding third
Asherman factor weighed against state even though record did not reflect
animus or improper motive, because police department’s policy violating
state law ‘‘constituted a reckless disregard of the defendant’s rights’’).
Even if we assume that Koval was grossly negligent in his handling of
the lost photographs, that fact would not impact our Asherman analysis.
See State v. Gray, supra, 212 Conn. App. 212 (‘‘[i]n examining the motives
[behind the destruction of evidence] . . . our courts have considered such
factors as whether the destruction was deliberate and intentional rather
than negligent’’ (emphasis added; internal quotation marks omitted)); see
also State v. Morales, 39 Conn. App. 617, 627,
667 A.2d 68 (‘‘while the police
department may have been negligent in returning the jacket to the victim,’’
because there was ‘‘no evidence of bad faith or an intention to harm,’’ it
was not improper for the court to find ‘‘that the reason for the unavailability
of the jacket did not significantly tip the Asherman scale in favor of the
defendant’’), cert. denied, 235 Conn. 938,
668 A.2d 376 (1995).
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unavailability of the 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.
. . . [T]his court repeatedly has held that a trial court
may ameliorate any prejudice resulting from unavailable evidence by providing the defendant with unfettered cross-examination and by allowing the defendant
to focus on the state’s failure to produce such evidence
during closing argument.’’ (Citations omitted; internal
quotation marks omitted.) State v. Gray, supra, 212
Conn. App. 215–16. ‘‘In analyzing this prong, our courts
have evaluated the strength of the state’s case by
reviewing the ‘testimony and exhibits [introduced at
trial], aside from’ the missing evidence.’’ (Emphasis in
original.) Id., 236 (Prescott, J., concurring), quoting
State v. Morales, 90 Conn. App. 82, 92,
876 A.2d 561,
cert. denied, 275 Conn. 924,
883 A.2d 1250 (2005). The
defendant argues that ‘‘Koval’s failure to properly document or observe the crime scene made the loss of the
only photograph taken there critical’’ and that ‘‘the missing photographs . . . undermined the defendant’s ability to present a defense and hobbled his [DNA] transfer
theory.’’
Our review of the record leads us to conclude that
the direct and circumstantial evidence presented by the
state provided strong evidence of the defendant’s guilt.
At trial, the victim testified about the details of the
sexual assault and identified the defendant as the perpetrator, and three constancy of accusation21 witnesses—
21
‘‘[T]he constancy of accusation doctrine . . . permits the victim in a
sexual assault case . . . to testify on direct examination regarding the facts
of the sexual assault and the identity of the person or persons to whom the
incident was reported. . . . Thereafter, if defense counsel challenges the
victim’s credibility by inquiring, for example, on cross-examination as to
any out-of-court complaints or delayed reporting, the state will be permitted
to call constancy of accusation witnesses subject to [certain] limitations
. . . . If defense counsel does not challenge the victim’s credibility in any
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the victim’s mother and brother, and J—testified that
the victim told them that the defendant had sexually
assaulted her.22 Moreover, the underwear itself, along
with the leggings worn by the victim during the assault,
were both entered into evidence as physical exhibits
for the jury to inspect. The state also offered as evidence
the results of a DNA analysis linking the defendant to
a semen stain found on the victim’s underwear and
testimony from the state laboratory employees who
analyzed the evidence. Furthermore, the prosecutor
elicited testimony from Williams, an expert witness on
fashion on these points, the trial court shall not permit the state to introduce
constancy testimony but, rather, shall instruct the jury that there are many
reasons why sexual assault victims may delay in officially reporting the
offense, and, to the extent the victim delayed in reporting the offense, the
delay should not be considered by the jury in evaluating the victim’s credibility. . . . A constancy of accusation witness is limited to testifying only with
respect to the fact and timing of the victim’s complaint; any testimony by
the witness regarding the details surrounding the assault must be strictly
limited to those necessary to associate the victim’s complaint with the
pending charge, including, for example, the time and place of the attack or
the identity of the alleged perpetrator.’’ (Citation omitted; internal quotation
marks omitted.) State v. Dionne, 207 Conn. App. 106, 112–13,
262 A.3d 961,
cert. denied, 340 Conn. 910,
264 A.3d 577 (2021).
22
Given this testimony, the court gave the jury a constancy of accusation
limiting instruction, stating, in part: ‘‘In this case you heard testimony that,
sometime after the alleged sexual offense, [the victim] made out-of-court
statements to other persons, [her brother], [J] and [her mother], about what
had taken place. More particularly, there was testimony about the time,
place, identity and general nature of the defendant’s alleged sexual assault
of [the victim]. The law recognizes that people might assume that anyone
subjected to a sexual offense would complain within a reasonable time to
someone to whom she ordinarily would turn for sympathy, protection or
advice. If there was no evidence that a complainant made such a complaint,
some might conclude that no sexual offense occurred. As a result, in cases
involving an allegation . . . of a sexual offense, the state is permitted in
certain circumstances to introduce out-of-court statements to other persons
about what occurred. The only reason that the evidence is permitted, is to
negate the inference that the complainant failed to confide in anyone about
the sexual offense. In other words, the narrow purpose of the constancy
evidence is to negate any inference that [the victim] failed to tell anyone
about the sexual offense and therefore that [her] later assertion cannot
be believed.’’
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child forensic interviews, explaining how perceived
inconsistencies in the account of a child who has been
sexually assaulted can arise and be cleared up during
the forensic interview process.23
By contrast, the defendant presented a DNA transfer
theory, which, aside from the testimony of his mother
that she had assisted with laundry at the victim’s home,
although not during the time period after the sexual
assault, amounted to unsubstantiated speculation
based on what the photograph and contents of the hamper could have shown if available. Indeed, the theory
and testimony offered by the defendant was contradicted by the testimony of the victim, her brother, and
her mother, as well as the lack of any evidence in
the record that the defendant had masturbated in the
victim’s home, which was the factual predicate underlying his theory of DNA transfer. Likewise, the record
was devoid of any evidence that, in the eight days that
elapsed between the sexual assault and the victim’s
report, the defendant’s mother assisted with laundry at
the victim’s home or the defendant deposited clothing
in the hamper in the victim’s room. Apart from the DNA
transfer theory, the defendant’s other primary strategy
23
For instance, Williams testified in part: ‘‘So the forensic interview process looks to clarify inconsistencies, we expect to have some, but there’s
a difference between [an] inconsistency and a discrepancy. And so . . . an
inconsistency we expect. A discrepancy would be, for example . . . if I
was interviewing . . . a child who had been beaten very much and was in
the hospital . . . and I’m interviewing them about the physical abuse and
they say: ‘Nope, I was never physically abused,’ but then later in the interview
may . . . refer to being hit with a broom or something, that would be a
discrepancy, versus an inconsistency where a child might say: ‘Well, the
blanket was red,’ but the blanket was blue, because we really haven’t gathered all that information, and so they’ve told that one person and that one
person only heard that one aspect, and the child’s memory might have been
when there was a red blanket there, so those inconsistencies we expect
them, and . . . if the child provides a credible enough disclosure, then
those inconsistencies may be cleared up and then simply . . . the other
investigators would move on with their investigation.’’
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was to attempt to undermine the credibility of the victim’s story by calling the jury’s attention to claimed
inconsistencies in the victim’s retellings of what happened, but, importantly, these purported inconsistencies were explained as being common and, in fact,
expected, by the state’s expert witness on child forensic
interviews.
In the present case, the court provided defense counsel with a full opportunity to engage in ‘‘unfettered
cross-examination’’ of Koval about the missing photographs; State v. Gray, supra, 212 Conn. App. 216; and
likewise permitted him to focus on the state’s loss of
the photographs during closing argument. This resulted
in the jury having an adequate opportunity to consider
the defendant’s narrative, the reason the photographs
were lost, and the prejudicial concerns stemming from
the unavailability of the photographs. Furthermore, the
state introduced into evidence several photographs
taken of the underwear at the state laboratory by the
forensic examiner, and its case was not based on the
missing photographs. See State v. Weaver, 85 Conn.
App. 329, 353,
857 A.2d 376 (fourth Asherman factor
weighed in state’s favor because state’s ‘‘strong’’ case
‘‘was not in any way based upon the lost evidence’’),
cert. denied, 271 Conn. 942,
861 A.2d 517 (2004). There
was also no affirmative evidence in the record indicating that the victim possessed a motive to fabricate the
accusation against the defendant or had a tendency to
be dishonest. See State v. Morales, 39 Conn. App. 617,
629–31, 667 A.2d 68 (weighing victim’s credibility during
prejudice analysis in Asherman challenge to, inter alia,
sexual assault conviction), cert. denied, 235 Conn. 938,
668 A.2d 376 (1995); cf. State v. Aaron L.,
272 Conn.
798, 815–16,
865 A.2d 1135 (2005) (considering victim’s
‘‘motive to fabricate or lack thereof’’ as factor in evaluating admissibility of statement under residual exception
to hearsay rule (internal quotation marks omitted)).
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Accordingly, any prejudice to the defendant resulting
from the missing photographs was minimal, and we
conclude that the fourth Asherman factor weighs in
favor of the state.
For the foregoing reasons, having determined that
all of the Asherman factors, on balance, weigh against
the defendant with respect to the lost photographs, we
conclude that the defendant was not deprived of his
state constitutional right to due process.
II
The defendant next claims that the court abused its
discretion in conducting an insufficient inquiry into an
allegation of juror misconduct. Specifically, he argues
that the inquiry the court engaged in was not adequate
under State v. Brown, 235 Conn. 502,
668 A.2d 1288
(1995),24 given the nature of the allegation and defense
counsel’s request that further inquiry, including the
recalling and questioning of a particular juror, be conducted. The defendant asks this court for a ‘‘remand to
conduct a Brown inquiry [that] appropriately addresses
the allegations of juror misconduct.’’ Conversely, the
state argues that the extent of the court’s inquiry was
appropriate and within its discretion. We agree with
the state.
The following additional facts and procedural history
are relevant to our analysis of this claim. On August
26, 2022, at the start of the defendant’s sentencing hearing, the court indicated to both parties that an allegation
of juror misconduct raised by defense counsel needed
to be addressed. Defense counsel then described the
24
In State v. Brown, supra,235 Conn. 504, our Supreme Court held that
the trial court’s ‘‘duty to conduct an inquiry into . . . allegations [of serious
jury misconduct]’’ was triggered when the court ‘‘received an anonymous
note’’ informing it that ‘‘the jurors overheard the sheriffs betting that the
defendant would be found guilty because he was black and from New York.’’
(Internal quotation marks omitted.) Id., 519–20.
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issue and how it had come to his attention, stating:
‘‘Early . . . last week, [the defendant] advised me of
a conversation he had with a young man by the name
of Nathan Gray. . . . Gray had advised [the defendant]
that he had spoken to a gentleman by the name of Chris
[Durante] through work. [Durante] was a supervisor at
[their workplace]. He worked with [Gray]. [Durante]
had spoken to one of the jurors, and what was conveyed
by [Durante] to [Gray], was that this juror had told him
that at some point during the trial [the juror] knew what
he was gonna say before he went into the jury room.
That information, once it got to me, I contacted my
investigator and I asked my investigator to, basically,
track this down. I had him start by talking to . . . Gray.
The investigator confirmed the information from . . .
Gray. . . . [M]y investigator then went and spoke to
. . . Durante about this alleged conversation with the
juror. . . . Durante denied having that conversation to
my investigator, so my investigator then came back to
me with that information. I asked my investigator to
follow up with . . . Gray. . . . Gray remained consistent in what he said, and we obtained a statement from
him . . . . [W]hen I got the statement in my possession, I contacted the state’s attorney, let her know and
explained, basically, what I just explained to the court,
and provided a copy of the statement as well so that’s
how we got to this point. And then, at some point this
week, it was brought to the court’s attention, and we
are here today.’’
The court then engaged in a preliminary inquiry into
the allegation by questioning defense counsel about it.
In response to the court’s questions, defense counsel
explained that the source of the allegation, Gray, is the
boyfriend of the sister of the defendant’s girlfriend and
that Durante ‘‘denied ever having that conversation
. . . with [Gray] or the juror.’’ Defense counsel conceded that the statement ‘‘is hearsay layered upon hearsay’’ but nevertheless asked the court to find that ‘‘a
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sufficient basis [existed] to conduct further inquiry and
to conduct some inquiry of the juror himself.’’ The state
opposed further inquiry by the court into the allegation.
After hearing argument from both counsel on the
issue, the court recessed for a short period and then
orally denied the defendant’s request for further inquiry
into the allegation of juror misconduct. In doing so, the
court applied the factors set forth by our Supreme Court
in Brown, discussing each factor in detail, and concluding, in pertinent part: ‘‘[R]elevant case law states that
a trial court must conduct a preliminary inquiry on the
record whenever it is presented with any allegations of
juror misconduct in a criminal case. Although the form
and scope of such an inquiry lie within a trial court’s
discretion, the court must conduct some type of inquiry
in response to the allegations of jury misconduct. . . .
Whether a preliminary inquiry of counsel or some other
limited formal proceeding will lead to [more] extensive
proceedings will depend on what is disclosed during
the initial limited proceeding and on the exercise of the
trial court’s sound discretion with respect thereto. . . .
‘‘In this case, the defendant did not in [the court’s]
opinion, request only a minimal type of proceeding:
it asked that the court bring in the actual juror who
committed the alleged misconduct. In contrast, although
the defendant can request an evidentiary hearing, the
trial court should not hold such a proceeding if it’s
persuaded that a less extensive inquiry is more appropriate in light of all the circumstances; so, the court is
taking that factor into consideration. . . .
‘‘The defense has presented extremely weak evidence
relevant to its claim of juror misconduct and rel[ies]
solely on double hearsay statements that were denied
by the middle declarant . . . Durante. . . . Gray has
a connection or apparent possible bias to the defendant
as there’s a nexus between him and the defendant’s
girlfriend. The statement is also very vague. We don’t
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know at what point of the trial or . . . when the statement was made. It could have been made during deliberations. The court is [entitled] to rely on its jury instructions that the jury would not deliberate until all evidence
was submitted to the jury and that [it] would deliberate
in good faith. Again . . . Durante denies making the
statement. I’ll also note that, during the trial, the jury
did in fact have readback and a question relative to the
evidence. There’s nothing in the statement to suggest
either that he shared any of his thoughts with the other
jurors. Balancing those factors against the state’s strong
interest in the finality of verdicts and how our caselaw
explains [that] the danger in discussing or forcing a
juror to come in, explain his thought process during
the trial or during the deliberations, simply outweighs
having any evidentiary proceeding based on the facts
and circumstances of this case.
‘‘So, the inquiry will end here. And again, based on
these factors and weighing these factors and circumstances of . . . Gray’s statement, its reliability, its bias,
versus the strong interest with the finality of judgments
and the state’s [interest in] protecting the privacy and
integrity of any jury deliberations, a full evidentiary
hearing is not warranted.’’
We next set forth our standard of review for a claim
that a court’s inquiry into an allegation of jury misconduct or bias was insufficient. ‘‘[J]ury impartiality is a
core requirement of the right to trial by jury guaranteed
by the constitution of Connecticut, article first, § 8, and
by the sixth amendment to the United States constitution. . . . In essence, the right to jury trial guarantees
to the criminally accused a fair trial by a panel of impartial, indifferent jurors. . . . The modern jury is
regarded as an institution in our justice system that
determines the case solely on the basis of the evidence
and arguments given [it] in the adversary arena after
proper instructions on the law by the court. . . . We
have recognized, moreover, that [t]he trial court, which
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has a [firsthand] impression of [the] jury, is generally
in the best position to evaluate the critical question of
whether the juror’s or jurors’ exposure to improper
matter has prejudiced a defendant.’’ (Internal quotation
marks omitted.) State v. Montanez, 185 Conn. App. 589,
602–603, 197 A.3d 959 (2018), cert. denied,
332 Conn.
907,
209 A.3d 643 (2019).
‘‘Our review on appeal is limited to the inquiry of
whether the court’s review of the alleged jury misconduct can be characterized fairly as an abuse of discretion’’; State v. Kamel, 115 Conn. App. 338, 343,
972 A.2d
780 (2009); and ‘‘[a]ppellate review of a trial court’s
preliminary inquiry into claims of jury misconduct or
bias is governed by [Brown]. In Brown, our Supreme
Court invoked its supervisory authority over the administration of justice to hold that a trial court must conduct
a preliminary inquiry, on the record, whenever it is
presented with any allegations of jury misconduct in
a criminal case, regardless of whether an inquiry is
requested by counsel. . . . The form and scope of such
inquiry is left to the discretion of the trial court based
on a consideration of multiple factors, including: (1)
the private interest of the defendant; (2) a risk and
value assessment of additional procedural safeguards;
and (3) the [state’s] interest. . . . In outlining these
factors, we also [have] acknowledged, however, that
[i]n the proper circumstances, the trial court may discharge its obligation simply by notifying the defendant
and the state of the allegations, providing them with
an adequate opportunity to respond and stating on the
record its reasons for the limited form and scope of
the proceedings held. . . . Accordingly, [a]ny assessment of the form and scope of the inquiry that a trial
court must undertake when it is presented with allegations of jur[or] [bias or] misconduct will necessarily
be fact specific.’’ (Citations omitted; internal quotation
marks omitted.) State v. Montanez, supra,185 Conn.
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App. 603–604; see also State v. Biggs, 176 Conn. App.
687, 704,
171 A.3d 457 (‘‘we recognize that the trial court
has wide latitude in fashioning the proper response to
allegations of juror [misconduct]’’ (internal quotation
marks omitted)), cert. denied, 327 Conn. 975,
174 A.3d
193 (2017).
‘‘In Brown, [our Supreme Court] noted that ‘[t]here
may well be cases . . . in which a trial court will rightfully be persuaded, solely on the basis of the allegations
before it and the preliminary inquiry of counsel on the
record, that such allegations lack any merit. In such
cases, a defendant’s constitutional rights may not be
violated by the trial court’s failure to hold an evidentiary
hearing . . . .’ ’’ State v. Michael J., 274 Conn. 321, 340,
875 A.2d 510 (2005). ‘‘[O]f course . . . it is within the
discretion of the trial court to make credibility assessments and determine whether the allegations [of juror
misconduct] are facially credible.’’ (Internal quotation
marks omitted.) State v. Roman, 262 Conn. 718, 728,
817 A.2d 100 (2003); see also State v.
Brown, supra,
235 Conn. 527–28 (‘‘the trial judge has a superior opportunity to assess the proceedings over which he or she
personally has presided . . . and thus is in a superior
position to evaluate the credibility of allegations of . . .
misconduct, [regardless of] their source’’ (citations
omitted)).
‘‘[A]lthough the defendant can request an evidentiary
hearing, the trial court should not hold such a proceeding if it is persuaded that a less extensive inquiry is
more appropriate in light of all the circumstances. . . .
It should also consider the seriousness of the allegation
by taking into account the prejudicial nature of the
alleged misconduct as well as the nature and degree of
the jury’s alleged involvement in the misconduct. . . .
Brown also advises that, when exercising its discretion
as to how to proceed with a claim of juror misconduct,
a court should credit the [state’s] interest in the finality
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of judgments, protecting the privacy and integrity of
jury deliberations, preventing juror harassment, and
maintaining public confidence in the jury system.’’
(Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Biggs, supra, 176 Conn.
App. 709–10.
We conclude that the court did not abuse its discretion in denying the defendant’s request for additional
inquiry into the allegation of juror misconduct. By notifying the parties about the allegation, engaging in a
preliminary inquiry during which it questioned defense
counsel and heard from both parties on the issue, and
then thoughtfully applying the Brown factors after
learning about the allegation, the court conducted the
‘‘meaningful, on the record, preliminary inquiry . . .
required by Brown and its progeny.’’ State v. Kamel,
supra,115 Conn. App. 344; see State v.
Biggs, supra,176 Conn. App. 711 n.7 (‘‘[a]lthough . . . courts have
heard testimony from jurors accused of misconduct
before rendering decisions as to whether juror misconduct occurred and thus prejudiced the defendant . . .
the court here was within its province to determine,
in its fact specific inquiry, that such testimony was
unnecessary in light of its preliminary inquiry’’ (citation
omitted)). The court specifically stated on the record
its reasons for the limited form and scope of its inquiry;
see State v. Montanez, supra,185 Conn. App. 604; particularly, its findings that the source of the allegation was
connected to the defendant, the statement itself was
vague, it was double hearsay, and the purported middle
declarant of that double hearsay statement denied ever
having made the statement.
The facts of the present case fall squarely within
those cases in which we have held that the court’s
inquiry was adequate under Brown.25 For example, in
25
The present case differs from those in which we have found a court’s
inquiry into an allegation of juror misconduct or bias to be insufficient under
Brown. For instance, in State v. Kamel, supra, 115 Conn. App. 348–50, we
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State v. Necaise, 97 Conn. App. 214, 220–26,
904 A.2d
245, cert. denied,
280 Conn. 942,
912 A.2d 478 (2006),
we determined that the court responded appropriately
after it received a note from a juror suggesting possible
bias by conducting a preliminary inquiry, on the record,
in which it notified the parties about the note, gave them
an opportunity to propose possible remedial actions,
including requesting further inquiry, and then determined that a curative instruction without further inquiry
was warranted. See also State v. Alston, 272 Conn. 432,
453,
862 A.2d 817 (2005) (court did not abuse its discretion and clearly satisfied preliminary inquiry required
by Brown when, ‘‘[a]fter learning about the alleged misconduct, the . . . court, on the record, alerted both
parties to it [and] allowed them to respond and to
request a more extensive inquiry’’). Likewise, in the
present case, the court notified the parties, on the
record, about the allegation, inquired into the allegation
by questioning defense counsel, and provided both the
state and the defendant an opportunity to be heard as
to how it should proceed. In light of the ‘‘wide latitude’’
the court has in making credibility determinations and
‘‘in fashioning the proper response to allegations of
juror [misconduct]’’ under Brown; (internal quotation
marks omitted) State v. Biggs, supra,176 Conn. App.
704; and the nature of the allegation made in the present
case, as revealed through the court’s meaningful questioning, the court was well within its discretion to ‘‘disheld that the court abused its discretion by failing to conduct the meaningful,
on the record, preliminary inquiry required by Brown because, after the
court discovered brass knuckles—which were not admitted into evidence—
in the jury deliberation room, it failed ‘‘to inform both sides that the jury
was exposed to the brass knuckles,’’ or to inquire into the matter on the
record. See also State v. Roman, supra, 262 Conn. 727–28 (court abused its
discretion by failing to conduct any on record inquiry into specific and
facially credible allegation that juror spoke to victim’s family member); State
v. Centeno, 259 Conn. 75, 82–83,
787 A.2d 537 (2002) (court abused its
discretion by failing to conduct at least ‘‘some inquiry’’ on record into
defendant’s facially credible allegation that he knew juror from prior, possibly criminal, relationship).
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charge its obligation simply by notifying the defendant
and the state of the allegations, providing them with
an adequate opportunity to respond and [then] stating
on the record its reasons’’ for going no further than a
preliminary inquiry, as it did. (Internal quotation marks
omitted.) State v. Montanez, supra,185 Conn. App. 604.
We conclude that it was not an abuse of discretion
for the court to determine that recalling a juror for
questioning three months after the jury delivered its
verdict was unwarranted; see State v. Biggs, supra,176
Conn. App. 709; see also United States v. Scarfo,
41
F.4th 136, 209 (3d Cir. 2022) (‘‘substantial evidence of
jury misconduct . . . [is required] [before] a district
court may, within its sound discretion, investigate the
allegations through juror questioning’’ (internal quotation marks omitted)), cert. denied sub nom. Pelullo v.
United States, U.S. , 143 S. Ct. 1044,
215 L. Ed.
2d 201 (2023); Walters v. Hitchcock,
237 Kan. 31, 36,
697 P.2d 847 (1985) (acknowledging that ‘‘recall of
jurors after their service has ended to testify . . . is a
serious step’’); and that, instead, a less extensive inquiry
was appropriate given the circumstances surrounding
the allegation and the considerations outlined in
Brown.26 Accordingly, we reject the defendant’s claim
that the court abused its discretion in declining to
engage in further inquiry into the allegation of juror
misconduct.
The judgment is affirmed.
In this opinion the other judges concurred.
26
‘‘Moreover, [when, as here] the trial court was in no way responsible
for the juror misconduct . . . we have repeatedly held that a defendant
who offers proof of juror misconduct bears the burden of proving that
actual prejudice resulted from that misconduct.’’ (Internal quotation marks
omitted.) State v. James H., 150 Conn. App. 847, 854,
95 A.3d 524, cert.
denied, 314 Conn. 913,
100 A.3d 404 (2014). The defendant has not made any
such showing of prejudice in his brief or at oral argument before this court.
