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State v. Bember
STATE OF CONNECTICUT v. TYHITT BEMBER
(SC 20708)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker, Alexander and Dannehy, Js.
Syllabus
Convicted of felony murder, attempt to commit robbery in the first degree,
and carrying a pistol or revolver without a permit in connection with
the shooting death of the victim, the defendant appealed to this court.
On the night of the victim’s murder, the defendant, armed with a .22
caliber revolver with black duct tape wrapped around its grip, was
parked at a restaurant with H in H’s car. When the defendant saw the
victim walking nearby, he instructed H to follow the victim in the car.
At some point, the defendant exited the car to pursue the victim on
foot. After confronting the victim, the defendant decided to rob him,
but, when the victim resisted, the defendant shot the victim five times.
At trial, the state’s case rested almost entirely on the testimony of H
and B, who were both facing charges for their involvement in another
homicide and had entered into cooperation agreements with the state.
The defendant had allegedly confessed his involvement in the victim’s
murder to B, who was the defendant’s close friend. Prior to trial, the
defense moved to preclude the state from introducing the cooperation
agreements during its direct examination of H and B. The trial court
granted the motion but ruled that the prosecutor would be permitted
to use leading questions to flesh out the terms of the agreements. The
defense also moved for a pretrial hearing regarding the reliability of
H’s and B’s proposed trial testimony pursuant to the statute (§ 54-86p)
governing the reliability and admissibility of jailhouse informant testimony. Following a hearing, at which H and B testified, the trial court,
over defense counsel’s objection, granted the state’s motion to open the
hearing for the purpose of introducing five exhibits relating to evidence
that the parties had referenced during their arguments at the hearing.
Thereafter, the trial court found that H’s and B’s proposed trial testimony
was sufficiently reliable to be admitted at trial. In reaching its decision,
the trial court relied on, inter alia, its credibility assessment of H’s and
B’s testimony in another criminal case. At trial, the prosecutor elicited
testimony from H and B on direct examination regarding their cooperation agreements, including their obligation to tell the truth under the
terms of those agreements. Held:
1. The defendant could not prevail on his claim that the trial court had
abused its discretion in permitting the prosecutor to question H and B
during direct examination regarding the specific terms of their cooperation agreements with the state:
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State v. Bember
The defendant waived this claim, as defense counsel expressly agreed
that the state could use leading questions during direct examination to
flesh out the terms of the cooperation agreements and H’s and B’s
understanding of them, and, even if the claim was not waived, it still
would have failed because defense counsel informed the trial court, prior
to the start of the trial, that he intended to cross-examine H and B about
their expectations under the cooperation agreements, and, therefore, it
was within the trial court’s discretion to permit the prosecutor to use the
agreements to rehabilitate H and B in advance, during direct examination.
2. The defendant could not prevail on his claim that the prosecutor had
impermissibly vouched for H’s and B’s credibility by introducing the
truthfulness provisions of their cooperation agreements, eliciting testimony from H and B that their attorneys were present in the courtroom,
and referencing their prior testimony in other criminal cases on behalf
of the state:
This court, relying on State v. Calhoun (346 Conn. 288) and State v. Flores
(344 Conn. 713), concluded that the introduction of the truthfulness
provisions of H’s and B’s cooperation agreements did not constitute
improper vouching because they did not refer to facts not in evidence,
explicitly or implicitly indicate that the state had verified the accuracy
of their testimony, or offer the prosecutor’s personal opinion regarding
the truthfulness of their testimony, and those provisions merely stated
that the witnesses had an obligation to testify truthfully and explained
the consequences for a breach of that obligation.
It was unnecessary for this court to decide whether the prosecutor’s
questions relating to H’s and B’s testimony in other cases and their
attorneys’ presence in the courtroom were improper because, even if
they were, they did not deprive the defendant of a fair trial, as defense
counsel did not raise any objection to these questions or ask the trial
court to take any curative measures, and, accordingly, it could be inferred
that defense counsel did not regard the questions as seriously prejudicial
when they were posed to H and B.
Moreover, the alleged improprieties were infrequent, as the challenged
questions comprised only a small portion of the prosecutor’s lengthy
examination of both witnesses, this court did not perceive the questions
as blatantly egregious or inexcusable, and, although H’s and B’s testimony
was central to the state’s case, the state presented evidence that corroborated their testimony, including cell site data and analysis placing the
defendant near the crime scene close to the time that the victim was
shot and a .22 caliber revolver with black duct tape wrapped around its
grip, which the defendant had given to his then girlfriend for safe keeping
after the victim’s murder.
3. The trial court did not abuse its discretion in opening the reliability hearing
to allow the state to introduce evidence that the parties had referenced
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State v. Bember
during the hearing or in determining that H’s and B’s proposed trial
testimony was sufficiently reliable to be admissible at trial under
§ 54-86p:
With respect to the trial court’s opening of the reliability hearing, the
defendant failed to identify any resulting prejudice, as the court found
that the state had inadvertently failed to introduce the evidence referenced at the hearing and that the defendant was aware of that evidence,
and as the court properly could have considered most, if not all, of the
evidence under § 54-86p, even if it had not been admitted at the hearing.
With respect to the trial court’s reliability determination, the trial court
conducted a careful review of the record of the hearing, the legal arguments advanced by both parties, and the statutory factors enumerated
in § 54-86p (a) in concluding that H’s and B’s proposed testimony was
sufficiently reliable to be admitted at trial.
Moreover, although the trial court erroneously included its own assessment of H’s and B’s testimony in another case in determining that their
proposed testimony was sufficiently reliable to be admitted at trial in
the present case, that error was harmless because it was clear that the
court would have found H’s and B’s testimony sufficiently reliable utilizing only permissible statutory factors under § 54-86p, as its prior credibility assessment was one of many factors that it considered in determining
that the testimony was sufficiently reliable, there was nothing in the
record to suggest that it was a dispositive factor or that the court’s
decision might have been different in its absence, and defense counsel
had ample opportunity to impeach H’s and B’s credibility at trial and
thoroughly availed himself of that opportunity through cross-examination and during closing argument.
This court instructed trial courts to rely on objective criteria, to which all
parties would have access through the discovery process, in considering
information disclosed pursuant to statute (§ 54-86o (a) (5)) for purposes
of making a prima facie reliability determination under § 54-86p (a).
4. There was no merit to the defendant’s claim that the trial court’s denial
of his motion to suppress a recording of a phone conversation he had
had with his then girlfriend, D, while he was being held in pretrial
detention on unrelated charges and to suppress the .22 caliber revolver
seized by the police as a fruit of the information acquired from the
recording violated his rights under the fourth amendment to the United
States constitution:
The defendant failed to demonstrate that he maintained a subjective
expectation of privacy in the content of his phone conversation with D,
as he stipulated that, at the time of his admission to the correctional
facility, he was notified and signed a waiver acknowledging that all
nonprivileged calls were subject to recording and monitoring, there were
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State v. Bember
signs posted near the phone area at the correctional facility, and a
recorded message played throughout his call with D, reminding him that
his call was subject to recording and monitoring, and nothing about the
defendant’s actions in placing a call under these conditions indicated
an intent to preserve the contents of the call as private.
Moreover, in the absence of such an expectation of privacy, the defendant
was not entitled to suppression of the recording of the phone conversation or the .22 caliber revolver.
Argued October 27, 2023—officially released June 25, 2024
Procedural History
Substitute information charging the defendant with
the crimes of murder, felony murder, attempt to commit
robbery in the first degree, conspiracy to commit robbery in the first degree, and carrying a pistol or revolver
without a permit, brought to the Superior Court in the
judicial district of New Haven, where the court, Vitale,
J., denied the defendant’s motion to suppress certain
evidence; thereafter, the case was tried to the jury
before Vitale, J.; subsequently, the court granted the
defendant’s motion for a judgment of acquittal as to
the charge of conspiracy to commit robbery in the first
degree; verdict and judgment of guilty of felony murder,
attempt to commit robbery in the first degree, and carrying a pistol or revolver without a permit, from which
the defendant appealed to this court. Affirmed.
James B. Streeto, senior assistant public defender,
for the appellant (defendant).
Meryl R. Gersz, assistant state’s attorney, with whom
were John P. Doyle, Jr., state’s attorney, and Melissa
Holmes, assistant state’s attorney, for the appellee (state).
Opinion
ALEXANDER, J. Following a jury trial, the defendant,
Tyhitt Bember, was convicted of felony murder in violation of General Statutes § 53a-54c, attempt to commit
robbery in the first degree in violation of General Stat-
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State v. Bember
utes §§ 53a-49 (a) (2) and 53a-134 (a) (2), and carrying
a pistol or revolver without a permit in violation of
General Statutes § 29-35.1 On appeal,2 the defendant
claims that (1) the trial court abused its discretion in
permitting the state to question two of its witnesses
about their cooperation agreements with the state during
direct examination and that this questioning amounted
to prosecutorial impropriety, (2) the trial court abused
its discretion in concluding that the testimony of the
cooperating witnesses was reliable and admissible pursuant to General Statutes § 54-86p,3 and (3) the trial
court’s denial of his motion to suppress the recording
of a jailhouse phone call and the .22 caliber revolver
seized by the police as a result of information acquired
from that recording violated his rights under the fourth
1
The jury found the defendant not guilty of the charge of murder in
violation of General Statutes § 53a-54a (a). The trial court granted the defendant’s motion for a judgment of acquittal as to the charge of conspiracy to
commit robbery in the first degree in violation of General Statutes §§ 53a-
48 (a) and 53a-134 (a) (2).
2
The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b) (3).
3
General Statutes § 54-86p provides in relevant part: ‘‘(a) In any criminal
prosecution of a defendant for a violation of section . . . 53a-54c . . . upon
a motion of the defendant before the start of a trial on any such offense,
the court shall conduct a hearing at which hearsay or secondary evidence
shall be admissible to determine whether any jailhouse witness’s testimony
is reliable and admissible. The court shall make a prima facie determination
concerning the reliability of such testimony after evaluation of the evidence
submitted at the hearing and the information or material disclosed pursuant
to subdivisions (1) to (5), inclusive, of subsection (a) of section 54-86o, and
may consider the following factors:
‘‘(1) The extent to which the jailhouse witness’s testimony is confirmed
by other evidence;
‘‘(2) The specificity of the testimony;
‘‘(3) The extent to which the testimony contains details known only by
the perpetrator of the alleged offense;
‘‘(4) The extent to which the details of the testimony could be obtained
from a source other than the defendant; and
‘‘(5) The circumstances under which the jailhouse witness initially provided information supporting such testimony to . . . a prosecutorial official, including whether the jailhouse witness was responding to a leading
question. . . .’’
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State v. Bember
amendment to the United States constitution. We reject
the defendant’s claims and affirm the judgment of the
trial court.
The following facts are relevant to our analysis of
the defendant’s claims. On the evening of December
27, 2013, the defendant was driving around New Haven
with John Helwig and Melvin Younger in Helwig’s car.
The three men were friends and often spent time
together smoking, drinking, and engaging in criminal
activity. On the night of the murder, the defendant was
armed with an older model .22 caliber revolver that had
black duct tape wrapped around the grip. Sometime
around midnight, Helwig drove the men to a Taco Bell
restaurant near exit 8 on Interstate 91. While parked at
the restaurant, the defendant saw the victim, Javier
Martinez, walking nearby. The defendant mistook the
victim for someone he did not like and with whom he
previously had fought. The defendant told Helwig to
follow the victim so that he could confront him. At
some point, the defendant and Younger exited Helwig’s
car to pursue the victim on foot. When the defendant
caught up to him, he realized that the victim was not
the person he thought he was but decided to rob him
anyway. When the victim resisted, the defendant shot
him five times. The victim died at the scene. Upon
returning to Helwig’s car, the defendant told Helwig
that he had shot the victim because the victim disrespected him during the robbery by pushing his gun out
of the way.
A nearby resident found the victim’s body in the street
and summoned the police. Five .22 caliber bullets were
later removed from the victim’s body. Investigators
were able to determine that four of the bullets had been
fired from the same weapon. The remaining bullet was
too damaged for an accurate comparison.
In 2017, after a lengthy investigation, the state charged
the defendant with several offenses relating to the victim’s
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State v. Bember
death. The state’s case turned primarily on the testimony of two cooperating witnesses, Otis Burton, a close
friend of the defendant to whom the defendant had
confessed after the murder, and Helwig, who was with
the defendant on the night of the murder. The state
also presented cell site data and analysis placing the
defendant near the crime scene close to the time that
the victim was shot, and a .22 caliber revolver with
black duct tape wrapped around its grip, which the
defendant had given to his girlfriend for safe keeping.
The bullets recovered from the victim’s body and crime
scene were too damaged to be directly connected to
the defendant’s .22 caliber revolver.
I
The defendant first claims that the trial court abused
its discretion in permitting the state to question Helwig
and Burton regarding the specific terms of their cooperation agreements with the state4 during direct examina-
4
Helwig’s cooperation agreement, which was identical to Burton’s in all
pertinent respects, provided in relevant part: ‘‘The [state] agrees to: (1)
[u]pon Helwig’s request, to provide information regarding his cooperation
pursuant to his agreement to any government agency in any matter or to
any court in any proceeding. The [s]tate will not make a specific sentence
recommendation unless required to do so by the [c]ourt.
‘‘Helwig agrees to: (1) truthfully disclose all information pertaining to his
criminal activities, and/or the criminal activities of others, as these activities
relate to matters about which the [state] and any investigating police officer
or agency inquires of him; (2) truthfully testify before any investigatory
grand jury, and/or at any trial, retrial, or other court proceeding concerning
such criminal activity when requested to do so by the [state]. . . .
‘‘It is understood that this agreement contemplates the following criminal
activities, whether completed, attempted, or conspired: murder; hindering
prosecution; the discharge, theft, possession and trafficking of firearms; and
that it may include any other criminal activities that may arise upon further
information and investigation.
‘‘It is understood that this is not an immunity agreement and that, in
providing information pursuant to this agreement, Helwig may be subject
to prosecution for any applicable state criminal offense.
‘‘It is understood that the [state], in fulfilling its obligations pursuant to
this agreement, makes no promises or representations regarding the actual
sentence imposed in any future matter, or the certainty of concurrent time.
The disposition of such matters rests entirely with the trial court. . . .
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State v. Bember
tion. The defendant contends that the state should have
been precluded from introducing the bolstering aspects
of the agreements, particularly the truthfulness provisions, until after Helwig’s and Burton’s credibility was
attacked by the defense. The defendant further contends that the state’s use of the cooperation agreements
during its direct examination, and the testimony elicited
as a result, amounted to prosecutorial impropriety because
it impermissibly vouched for the witnesses’ credibility.
The state argues that the defendant waived this claim
because defense counsel affirmatively agreed that the
state could question Helwig and Burton about their
cooperation agreements during direct examination. The
state further argues that, even if the claim was not
waived, the trial court did not abuse its discretion in
allowing the challenged testimony under State v. Calhoun, 346 Conn. 288,
289 A.3d 584 (2023), and State v.
Helwig understands that the charges for which he has entered pleas carry
an exposure of thirty years incarceration.
‘‘It is understood that Helwig is obligated pursuant to this agreement to
at all times give complete and truthful information and testimony. In the
event that the [state] in its discretion reasonably determines that Helwig
has given incomplete, false or misleading information, the agreement shall
become null and void and of no further effect, and Helwig may be subject
to prosecution of perjury and/or any other applicable state criminal offense
relating to the giving of such information.
‘‘It is understood that if the [state] reasonably determines that Helwig has
violated any provision of this agreement, the agreement shall become null
and void and of no effect. In the event that the agreement is rendered null
and void, for any reason, Helwig understands that any information that he
has provided pursuant to [the] agreement may be used against him in court
and he agrees to waive (1) any claim in law that his statements conveying
such information are subject to suppression, and (2) any statutes of limitations defense.
‘‘It is understood that this contract embodies the entirety of the agreement
between the parties, and that any amendment of, or addition to, the terms
hereof shall be executed in writing that is signed by the [state], Helwig, and
Helwig’s attorney. By signing this agreement, Helwig acknowledges that he
has carefully considered each of its provision[s], discussed each with his
counsel, and has no questions or concerns relating to entering into the agreement.’’
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State v. Bember
Flores, 344 Conn. 713,
281 A.3d 420 (2022), because
defense counsel informed the court, prior to the start
of trial, that Helwig’s and Burton’s expectations under
their cooperation agreements would be ‘‘front and center’’ in his cross-examination of them. The state further
argues that, because the trial court did not abuse its
discretion in permitting the state to introduce the cooperation agreements, there was no prosecutorial impropriety.
The following additional facts are relevant to the
resolution of this claim. Prior to trial, the defendant
moved to preclude the state ‘‘from offering [Helwig’s
and Burton’s] cooperation agreement[s] in its case-inchief.’’ Defense counsel argued that the state should be
precluded from presenting the agreements because the
prosecutor trying the case was the sole signatory on
the agreements, which was inherently bolstering of the
witnesses’ credibility. Defense counsel further argued
that, because ‘‘[t]he expectations of the witnesses under
[the cooperation] agreement[s] [would] be front and
center of some portion of . . . [his] cross-examination
. . . [he] should have the right to introduce [the agreements] . . . if [he] choose[s] to go down that road.’’
In making this argument, defense counsel acknowledged that, under State v. Gentile, 75 Conn. App. 839,
851–52, 818 A.2d 88, cert. denied,
263 Conn. 926,
823
A.2d 1218 (2003),5 the trial court had discretion to admit
5
In Gentile, the Appellate Court adopted the rule followed by the majority
of federal appellate courts permitting courts to admit a cooperation agreement before the cooperating witness’ credibility has been attacked. State
v. Gentile, supra, 75 Conn. App. 851–52; see also
id., 851 (‘‘it is not improper
bolstering for a prosecutor to question a witness on direct examination about
[a] cooperation agreement’s requirement that the witness testify truthfully
to receive the benefits of the agreement’’). We have not yet decided whether
we agree with the Appellate Court’s holding in Gentile on this issue, although
we have held that the trial court may exercise its discretion to permit the
state to question a witness about the terms of the witness’ cooperation
agreement during its direct examination, if defense counsel indicates that the
defense intends to question the witness regarding the cooperation agreement
during cross-examination. See State v. Flores, supra, 344 Conn. 748 (‘‘[w]e
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State v. Bember
the cooperation agreements during the state’s direct
examination, before the cooperating witnesses’ credibility was attacked. Defense counsel maintained, however, that, because Helwig’s and Burton’s credibility
was pivotal to the success of the state’s case, ‘‘this [was]
the very sort of case [that] Gentile may have had in
mind, [in which] the court ha[s] the ability to exercise
its discretion and [to] say to the state, no, you don’t
get to offer [the agreements] in your case-in-chief. You
can certainly mention [them]. . . . I don’t think that’s
improper. But to . . . offer the document[s] [themselves] . . . especially when the [person who signed
them] on behalf of the state . . . is the very [person]
trying the case . . . [that is a bridge too] far. . . .
[T]hat’s implicit vouching that this court should prohibit . . . .’’
The trial court thereafter granted the defense’s
request to preclude the state from introducing copies
of the cooperation agreements during its direct examination. At that time, the court asked defense counsel
if it correctly understood the defense’s objection to the
introduction of the agreements, stating in relevant part:
‘‘The [defense] has requested that the written agreement[s] be disallowed as . . . exhibit[s], but, as I
understand the record, and I can be corrected shortly
if I’m wrong . . . [the defense] has no objection to
thorough and specific testimony by each witness as to
the exact contents of the agreements and their understanding [of the agreements]. . . . There’s no objection, as I understand it, to the [state’s] examining the
witnesses from a document not in evidence. . . .
need not decide today whether to follow the majority or the minority of
jurisdictions regarding whether the admission of the agreements and their
truthfulness provisions must await an attack on the witness’ credibility
because the trial court did not abuse its discretion under either approach’’).
Although Flores had not been decided at the time of the defendant’s trial,
it is controlling on appeal. See, e.g., State v. Calhoun, supra, 346 Conn.
302 n.4.
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State v. Bember
[Therefore], the state will be permitted leading questions on direct [examination] to fully [flesh] out the
terms of the agreement[s]. The documents will be
marked for [identification] purposes only.’’6 When the
trial court finished speaking, it asked defense counsel
whether it had accurately conveyed for the record the
defense’s objection to the state’s use of the cooperation
agreements. Defense counsel responded, ‘‘Yes, I believe
. . . that [the court has] stated [the defense’s] position
correctly . . . .’’
Given this procedural history, we agree with the state
that the defendant has waived the right to challenge
the trial court’s evidentiary ruling as it relates to the
admission of the terms of the cooperation agreements
on direct examination.7 See, e.g., State v. Hampton, 293
Conn. 435, 449,
988 A.2d 167 (2009) (‘‘[w]hen a party
[or his counsel] consents to or expresses satisfaction
6
This procedure was initially proposed by defense counsel earlier at the
hearing conducted pursuant to § 54-86p in response to a question from the
trial court about how the jury would be made aware of the precise terms
of Helwig’s and Burton’s cooperation agreements. Defense counsel then
affirmatively stated: ‘‘I have consented to leading questions to avoid the
harm that I’m complaining about here. . . . I would agree that leading
questions would be appropriate there.’’
7
With respect to his other evidentiary claims, the defendant contends
that the trial court abused its discretion in permitting the state to use the
text of the cooperation agreements to vouch for Helwig’s and Burton’s
credibility. The defendant additionally contends that the trial court erred
in allowing the state to further vouch for their credibility by eliciting testimony from them that they previously had testified on behalf of the state in
other cases and that their attorneys were present in the courtroom at the
defendant’s trial. Defense counsel did not object at trial to the state’s questioning relating to the text of the cooperation agreements, Helwig’s and
Burton’s prior testimony, or their attorneys’ presence in the courtroom.
These claims are thus unpreserved, and we decline to review them on
appeal. See, e.g., State v. Qayyum, 344 Conn. 302, 312,
279 A.3d 172 (2022)
(‘‘[D]efense counsel’s failure to object to those questions necessarily means
that he did not articulate his claim regarding those questions with sufficient
clarity to put the trial court on notice. As a result, we conclude that the
defendant failed to preserve this evidentiary claim, and, therefore, we do
not review it.’’).
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State v. Bember
with an issue at trial, claims arising from that issue are
deemed waived and may not be reviewed on appeal’’
(internal quotation marks omitted)). The record leaves
no reasonable question that defense counsel assented
to the very procedure of which the defendant now complains. Defense counsel expressly agreed that the state
could use ‘‘leading questions on direct [examination]
to fully [flesh] out the terms of the agreement[s]’’ and
the witnesses’ understanding of them, which is exactly
what occurred. Furthermore, even if the claim was not
waived, it still would fail because defense counsel
informed the trial court, prior to the start of trial, that
Helwig’s and Burton’s expectations under their cooperation agreements would be ‘‘front and center’’ in his
cross-examination of them. See, e.g., State v. Calhoun,
supra, 346 Conn. 302 (‘‘if defense counsel makes it clear
that [the defense] intend[s] to cross-examine a witness
on that witness’ cooperation agreement, then the trial
court has discretion to permit the state to use the text
of the cooperation agreement to rehabilitate the witness
in advance, during direct examination’’).
We now turn to the defendant’s claims of prosecutorial impropriety. The defendant claims that the prosecutor impermissibly vouched for Helwig’s and Burton’s
credibility by (1) introducing the truthfulness provisions of their cooperation agreements, (2) eliciting testimony from them that their attorneys were present in
the courtroom, and (3) referencing their previous testimony in other cases on behalf of the state.8 The state
8
The state argues that these claims are merely a recharacterization of
the defendant’s evidentiary claims. See, e.g., State v. Graham, 344 Conn.
825, 858,
282 A.3d 435 (2022). We disagree. We previously have reviewed
claims relating to the admission of truthfulness provisions as claims of
prosecutorial impropriety. See, e.g., State v. Flores, supra, 344 Conn. 736,
742. We also disagree with the state’s contention that the defendant’s vouching claims relating to Helwig’s and Burton’s prior testimony and their attorneys’ presence in the courtroom are strictly evidentiary. Although
unpreserved challenges to the use of leading questions are unreviewable
when the defendant ‘‘take[s] issue with the form of the prosecutor’s questions
and not the information elicited’’; State v. Morel-Vargas, 343 Conn. 247, 273,
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State v. Bember
maintains that no impropriety occurred and, in the alternative, that the defendant was not deprived of a fair
trial. Although defense counsel did not object to many
of the questions the defendant now argues constituted
impropriety, this court reviews unpreserved claims of
prosecutorial impropriety under State v. Williams, 204
Conn. 523,
529 A.2d 653 (1987), and State v. Warholic,
278 Conn. 354,
897 A.2d 569 (2006). In so doing, however, ‘‘we continue to adhere to the well established
maxim that defense counsel’s failure to object to the
prosecutor’s [question] when it was [asked] suggests
that defense counsel did not believe that it was [improper]
in light of the record of the case at the time.’’ (Internal
quotation marks omitted.) State v. Taft, 306 Conn. 749,
762, 51 A.3d 988 (2012). We conduct a two step inquiry
in analyzing a claim of prosecutorial impropriety: ‘‘(1)
whether [impropriety] occurred in the first instance;
and (2) whether that [impropriety] deprived a defendant
of his due process right to a fair trial.’’ (Internal quotation marks omitted.) Id., 761–62. ‘‘[I]n determining
whether prosecutorial impropriety so infected the proceedings with unfairness as to deprive the defendant
of a fair trial, this court applies the factors set forth in
State v. Williams, [supra, 540]. These factors include:
the extent to which the [impropriety] was invited by
defense conduct or argument . . . the severity of the
[impropriety] . . . the frequency of the [impropriety]
. . . the centrality of the [impropriety] to the critical
issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s
case.’’ (Internal quotation marks omitted.) State v.
Hinds, 344 Conn. 541, 563–64,
280 A.3d 446 (2022).
273 A.3d 661, cert. denied, U.S. ,
143 S. Ct. 263,
214 L. Ed. 2d 114
(2022); in the present case, the defendant is not challenging the manner in
which the testimony relating to the witnesses’ prior testimony and their
attorneys’ presence at trial was elicited but, rather, is challenging the substance of that testimony.
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‘‘Vouching occurs when the state expressly or impliedly
attests to the credibility of a witness. . . . Although
the state would not put on a witness it did not believe,
the state’s confidence in its witnesses may not be stated
or implied to the jury.’’ (Citation omitted.) State v. Calhoun, supra, 346 Conn. 300. To avoid impermissible
vouching, the state may not express a personal opinion
about witness credibility, imply a guarantee of truthful
testimony, or make suggestions to the jury on the basis
of facts not in evidence. See, e.g., United States v.
Roundtree, 534 F.3d 876, 880 (8th Cir. 2008). To avoid
such impropriety, ‘‘the state must take care in drafting
its cooperation agreements, and trial courts must carefully examine their language before admitting them fully
into evidence.’’ (Internal quotation marks omitted.)
State v. Calhoun, supra, 301.
Looking first to whether recitation of the truthfulness
provisions of Helwig’s and Burton’s cooperation agreements constituted impropriety in the first instance, we
note that, in both Calhoun and Flores, this court concluded that the state’s use of nearly identical cooperation agreements did not constitute improper vouching.
See id.; State v. Flores, supra, 344 Conn. 748–50. The
truthfulness provisions at issue in those cases and in
the present case ‘‘are similar to the kind of provisions
considered permissible in the federal case law discussed and cited [in Flores]—specifically, the provisions stating that [the witness] had a duty to ‘truthfully
disclose’ and ‘truthfully testify’ and that he may be
charged with perjury if he lies. Under applicable case
law, these provisions do not constitute impermissible
vouching because they do not refer to facts not in evidence, do not explicitly or implicitly indicate that the
state has verified the accuracy of the testimony, and
do not offer the prosecutor’s personal opinion regarding
the truthfulness of the testimony. Rather, [they] merely
state that [the witness] had an obligation to testify truth-
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fully—a duty all witnesses are sworn to uphold—and
[to] explain the consequences for a breach of that obligation.’’ State v. Flores, supra, 748–49; see also State v.
Calhoun, supra, 301–302 (truthfulness provision that
witness could be prosecuted for perjury if state later
determines that witness lied under oath was not vouching because it ‘‘[did] not imply that the state or judge
knows that the witness presently is telling the truth, or
that they possess information or means, unavailable
to the jury, to determine the veracity of the witness’
testimony’’). Our analysis in these cases is dispositive
of the defendant’s prosecutorial impropriety claim with
respect to the introduction of the truthfulness provisions of Helwig’s and Burton’s cooperation agreements.
The defendant next claims that the prosecutor
vouched for Helwig’s and Burton’s credibility by eliciting testimony from them that both previously had
testified on behalf of the state in other cases. He argues
that this testimony, ‘‘[although] not objected to, constituted vouching in effect when combined with the testimony concerning the cooperation agreements’’ because
‘‘[i]t suggested to the jury that the prosecutor had already
verified the truth of the testimony . . . or [else] he
wouldn’t have used them as witnesses in subsequent
proceedings.’’ Further, the defendant contends that the
prosecutor vouched for Helwig’s and Burton’s credibility by eliciting from them the fact that their attorneys
were present in the courtroom during their testimony.
The defendant asserts that the prosecutor’s questioning
in this regard constituted vouching because, otherwise,
the jury would necessarily have to conclude that both
the prosecutor and defense counsel would be ‘‘willing
to sit idly by while Helwig and Burton lied under oath.’’
We conclude that it is unnecessary to decide whether
the prosecutor’s questions relating to Helwig’s and Burton’s prior testimony and their attorneys’ presence in
the courtroom were improper because, even if they
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were, they did not deprive the defendant of a fair trial.
See, e.g., State v. Hinds, supra, 344 Conn. 563 (‘‘even
if the prosecutor’s remarks were improper, there is
no possibility that they deprived the defendant of a
fair trial’’).
There is no indication in the record that the defense
invited the questions relating to Helwig’s and Burton’s
prior testimony and their attorneys’ presence in the
courtroom. However, defense counsel did not object,
and we interpret defense counsel’s lack of objection
‘‘as a strong indication that [the alleged improprieties]
did not carry substantial weight in the course of the
trial as a whole and were not so egregious that they
caused the defendant harm.’’ State v. Weatherspoon,
332 Conn. 531, 558,
212 A.3d 208 (2019). Although a
lack of objection is not dispositive in our analysis,
‘‘[w]hen no objection is raised at trial, we infer that
defense counsel did not regard the remarks as seriously
prejudicial at the time the statements were made.’’ State
v. Medrano, 308 Conn. 604, 620,
65 A.3d 503 (2013).
Furthermore, even though the trial court did not adopt
any curative measures, ‘‘the absence of such measures
is attributable to [defense counsel’s] failure to object
or request any curative instruction from the court.’’
State v. Ortiz, 343 Conn. 566, 581,
275 A.3d 578 (2022).
Moreover, we do not view the prosecutor’s questioning
regarding Helwig’s and Burton’s prior testimony or their
attorney’s presence in the courtroom to be ‘‘blatantly
egregious or inexcusable.’’ (Internal quotation marks
omitted.) State v. Ciullo, 314 Conn. 28, 59,
100 A.3d 779
(2014). The allegedly improper questions were asked
in conjunction with the state’s introduction of the terms
of the witnesses’ cooperation agreements, were isolated
in nature, did not constitute significant evidence in the
context of their entire testimony, and, again, resulted
in no objection from defense counsel. Given this con-
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text, we do not perceive the questions as blatantly egregious or inexcusable.
Nor can these instances of alleged impropriety be
characterized as frequent. See, e.g., State v. Felix R., 319
Conn. 1, 17,
124 A.3d 871 (2015) (‘‘[i]mproper statements
that are minor and isolated will generally not taint the
overall fairness of an entire trial’’ (internal quotation
marks omitted)). The challenged questions comprised
only a small portion of the state’s lengthy examination
of both witnesses. Moreover, the few isolated questions
relating to their prior testimony revealed the name and
nature of the cases in which they previously had testified on behalf of the state. The prosecutor asked Helwig
and Burton whether their attorneys were present in the
courtroom once and did so in confirming that both
witnesses were represented by counsel when they
entered the pleas related to their cooperation agreements. Finally, although Helwig’s and Burton’s testimony was important to the state’s case, the extent to
which their credibility was a central issue is mitigated
by the other evidence of guilt presented at trial. Specifically, both witnesses’ testimony was corroborated in
many respects by cell site data and analysis, which
coincided with the testimony about the defendant’s
movements on the night of the murder, placing him
close to the crime scene around the time of the shooting.
The jury was also presented with evidence that the
defendant had given his unique .22 caliber revolver—
the same caliber weapon used to shoot and kill the
victim—to his then girlfriend to hold for him shortly
after the murder took place. This corroborating evidence reinforces our conclusion that, even if we assume
the existence of impropriety, the defendant was not
deprived of a fair trial. See, e.g., State v. Weatherspoon,
supra,332 Conn. 558 (‘‘[W]e do not doubt that the jury’s
assessment of witness credibility was a significant factor in determining its verdict. But the jury was also
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presented with substantial physical and testimonial evidence corroborating [the witness’] story . . . .’’); State
v. Thompson, 266 Conn. 440, 482,
832 A.2d 626 (2003)
(‘‘we see no reason why the nature of the evidence as
circumstantial rather than direct should bear on the
assessment of the strength of the state’s case’’). Considering all of these factors, we cannot conclude that the
prosecutor’s questions relating to Helwig’s and Burton’s
testimony and their attorneys’ presence in the courtroom ‘‘so infected the trial with unfairness as to make
the conviction a denial of due process.’’ (Internal quotation marks omitted.) State v. Hinds, supra, 344 Conn.
556. Accordingly, the defendant cannot prevail on any
of his claims of prosecutorial impropriety.
II
The defendant next claims that the trial court abused
its discretion in concluding that Helwig’s and Burton’s
testimony was sufficiently reliable to be admissible
under § 54-86p. The defendant makes three arguments
in support of this claim: (1) the court abused its discretion in opening the hearing conducted pursuant to § 54-
86p (reliability hearing) to allow the state to introduce
evidence corroborating Helwig’s and Burton’s testimony, (2) the court abused its discretion in determining
that the state made a prima facie showing of reliability,
as required by § 54-86p, and (3) the court improperly
relied on its own credibility assessment of Helwig’s and
Burton’s testimony in another case in concluding that
their testimony was sufficiently reliable to be admissible in the present case. The state responds that the trial
court did not abuse its discretion in granting the motion
to open the reliability hearing and in finding Helwig’s
and Burton’s testimony reliable under § 54-86p. With
respect to the defendant’s third argument, the state
contends that it is not preserved because defense counsel did not object to this part of the court’s ruling at
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the reliability hearing, even though he had the opportunity to do so.
The following additional facts are relevant to our
resolution of this claim. At the reliability hearing, Burton testified that, at the time of the victim’s murder,
he was sixteen years old and spent almost every day
‘‘hanging out’’ with a group of teenagers in the basement
of an apartment building where a friend, McKinney
Davis, lived. Most of the teenagers, including the defendant, were members of a New Haven street gang known
as ‘‘Piru.’’ At the time of the murder, Burton had known
the defendant for approximately three years. Burton
testified that the defendant often carried a revolver that
had tape around the handle. It was in Davis’ basement
that he heard the defendant discuss the victim’s murder.
According to Burton, several individuals were present
when this conversation occurred, including Younger,
Helwig, Davis, and Torrence Gamble. The defendant
told them that, on the night of the murder, he had gone
out to look for someone he ‘‘had a beef with,’’ who
was in a relationship with the mother of his child. The
defendant said that he did not find the person and that,
when he came across the victim, whom he did not
know, he decided to rob him, but ‘‘the robbery didn’t
go right . . . [because the victim] reached for the gun.’’
Burton further testified that, after the murder, New
Haven police officers came to his home and told him
that a confidential informant had informed them that
Burton was present in Davis’ basement when the defendant discussed the murder. Burton told the officers that
he was wearing headphones at the time and did not hear
anything. Burton testified that he lied to the officers
because ‘‘it’s street code . . . . Nobody likes a snitch.’’
In 2016, Burton was arrested for conspiracy to commit murder in connection with the murder of Gamble,
who was killed because members of their gang sus-
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pected him of being a snitch. Burton was also arrested
for assault in the first degree in an unrelated case.
Burton testified that, after his arrests, he implicated the
defendant in the victim’s murder and entered into plea
and cooperation agreements with the state in the hope
of receiving a more lenient sentence. At the time of the
defendant’s trial, Burton was awaiting sentencing in
both the murder and assault cases. Under the cooperation agreement, his sentence exposure was capped at
twenty years. Without the agreement, he could have
faced up to forty-six years of incarceration.
Helwig testified that he met the defendant at the end
of 2012 or the beginning of 2013 through a mutual friend.
They grew so close that Helwig hired the defendant to
work for his family’s business. Most of the people they
socialized with were affiliated with the Piru street gang,
although Helwig was not a member of the gang. As the
only person with a car, Helwig regularly drove gang
members where they needed to go. Helwig testified that
the defendant carried an older .22 caliber revolver with
black tape around the grip. The gun was unique because
it held more rounds than a normal revolver.
Helwig further testified that, on the night of the murder, he, the defendant, and Younger began the evening
near Goffe and Orchard streets in New Haven. Later,
they drove to the Taco Bell restaurant near exit 8 on
Interstate 91. While parked at the restaurant, the defendant ‘‘noticed an individual that he thought he had problems with . . . and he wanted to confront [him].’’ They
then drove down the street in the direction they thought
the individual was headed. As the individual approached,
the defendant and Younger got out of the car to pursue
him on foot. A short time later, Helwig heard several
gunshots, after which the defendant and Younger came
running back to the car. According to Helwig, the defendant had his .22 caliber revolver in his hand when he
entered the car. When Helwig asked the defendant what
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had happened, the defendant said that, when he tried
to rob the individual, ‘‘the kid tried to mush the gun
out of his hand, [so] he shot him.’’ They then drove
back to Goffe Street, to the home of Rayshawn Burrows,
where they hung out, smoking, drinking, and discussing
the events of the evening.
When initially questioned by the police, Helwig denied
any knowledge of the victim’s murder. It was only after
he was arrested for conspiracy to commit murder in
connection with the killing of Gamble that he gave a
statement to the police implicating the defendant in the
victim’s murder. He did so pursuant to a plea agreement
that subjected him to a maximum term of incarceration
of thirty years, which was considerably shorter than
the sentence he would have faced without the cooperation agreement.
After Helwig and Burton testified, the trial court heard
arguments from the parties. Defense counsel argued that
the testimony was not sufficiently reliable to be admissible because there was absolutely no evidence corroborating any of it, the testimony itself was vague and
contradictory, and there was no forensic evidence linking the defendant’s .22 caliber revolver to the murder.
Following the parties’ arguments, the trial court
observed that § 54-86p (a) (1) provides that, in making
its reliability determination, the court may consider the
extent to which the witness’ testimony is confirmed
by other evidence. The court noted that, during their
arguments, both sides had referenced evidence that
they expected to be admitted at trial. The court stated
that, ‘‘if counsel has . . . reached an accommodation
or an agreement because counsel knows what the evidence is and what would be produced, that’s fine. But
the record is not going to show that . . . the evidence
. . . was introduced at [this] hearing . . . .’’ The court
further stated: ‘‘[Y]ou’re all proceeding under the assump-
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tion that you know what [the evidence] is because
you’ve got the discovery, it’s been referenced. I’ve heard
about it, you made a proffer. [Defense counsel] doesn’t
seem to dispute it, so, as long as everybody is on board
with that, that’s fine with me. I just want to make sure
that the record is clear that that’s how [we chose to
proceed].’’ In response, defense counsel asked whether
the parties could discuss the matter in chambers.
When the parties returned to the courtroom, the trial
court, over the defense’s objection, granted the state’s
motion to open the reliability hearing for the purpose of
introducing five exhibits: a police report on the victim’s
murder (exhibit 3), the defendant’s and Helwig’s arrest
warrant applications (exhibits 4 and 5), the victim’s
autopsy report (exhibit 6), and the ballistics report on
the defendant’s .22 caliber revolver (exhibit 7). The
court found that the state’s failure to introduce this
evidence was the result of ‘‘inadvertence or assumption’’ about the statutory requirements. The court further found that there would be ‘‘[no] undue prejudice
to the defense by allowing the state to [open the hearing]
just to complete the record’’ and that it was within the
court’s discretion to do so.
The next day, the trial court found that Helwig’s and
Burton’s testimony was sufficiently reliable to be presented to the jury. In an oral ruling, the court stated
that it had considered each of the factors set forth in
§ 54-86p (a) (1) through (5) in light of the evidence
presented at the reliability hearing and the discovery
provided pursuant to General Statutes § 54-86o (a) (1)
through (5).9 The court found Helwig’s testimony to be
9
General Statutes § 54-86o (a) provides in relevant part: ‘‘In any criminal
prosecution . . . the defendant may request of the prosecutorial official
whether such official intends to introduce testimony of a jailhouse witness.
The prosecutorial official shall promptly . . . disclose to the defendant
whether the official intends to introduce such testimony and, if so, the
following information and material:
‘‘(1) The complete criminal history of any such jailhouse witness, including
any charges pending against such witness, or which were reduced or dis-
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reliable because, at the time of the murder, he and the
defendant had been friends for approximately eighteen
months and saw each other nearly every day, and, thus,
‘‘[t]he night [the murder] occurred was . . . not an isolated occasion in which they were together.’’ The court
further noted that ‘‘Helwig’s description of the general
location of the crime scene, the number of shots he
had heard, and the description of the gun he alleges
that the defendant utilized was corroborated by state’s
exhibits 3, 5, and 6,’’ that, consistent with Helwig’s testimony, the victim suffered multiple gunshot wounds
from a .22 caliber revolver, and that historical cell site
data and analysis registered the defendant’s phone in
the vicinity of the murder scene at approximately 11:23
p.m., further corroborating Helwig’s testimony. Finally,
the court noted that Helwig statements to the police
implicating the defendant in the victim’s murder were
statements against his own penal interest and that Helwig himself had been charged in the victim’s murder.
The trial court reached similar conclusions with
respect to Burton, stating: ‘‘Burton . . . had a close
relationship with the defendant, they were similar in
missed as part of a plea bargain;
‘‘(2) The jailhouse witness’s cooperation agreement with the prosecutorial
official and any benefit that the official has provided, offered or may offer
in the future to any such jailhouse witness;
‘‘(3) The substance, time and place of any statement allegedly given by
the defendant to a jailhouse witness, and the substance, time and place of
any statement given by a jailhouse witness implicating the defendant in an
offense for which the defendant is indicted;
‘‘(4) Whether at any time the jailhouse witness recanted any testimony
subject to the disclosure, and, if so, the time and place of the recantation,
the nature of the recantation and the name of any person present at the
recantation; and
‘‘(5) Information concerning any other criminal prosecution in which the
jailhouse witness testified, or offered to testify, against a person suspected
as the perpetrator of an offense or defendant with whom the jailhouse
witness was imprisoned or otherwise confined, including any cooperation
agreement with a prosecutorial official or any benefit provided or offered
to such witness by a prosecutorial official.’’
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age, they associated with the same people, and [they]
were fellow gang members. [Burton was] someone [in]
whom the defendant would naturally confide as a result.
Burton was . . . sixteen years of age at the time of the
crime and the defendant’s alleged admissions to him.
The defendant and Burton had known each other since
they were thirteen or fourteen years of age. [Burton]
confirmed the defendant’s association with . . . Helwig . . . [and], although . . . Burton denied knowing
anything about the [victim’s murder] when first
approached by [the] police, citing what he called a
‘street code,’ . . . [h]e later provided specific information to [the] police [implicating the defendant in the
victim’s murder], which he has never recanted. He also
described seeing the defendant in possession . . . of
a .22 caliber revolver with tape on the handle.’’
In reaching its decision, the trial court addressed
the defense’s argument that Burton’s testimony was
unreliable because the information he provided was
vague and could have come from sources other than
the defendant, such as the police. The court concluded
that, if Burton had acquired his information from other
sources ‘‘in an effort to obtain favorable treatment . . .
his account of the defendant’s admissions [would] have
been far more detailed and incriminating, and [would]
have involved claims of multiple confessions by the
defendant [and] everyone involved, or [it would have
been] tailored to match [the testimony of] other witnesses.’’
Finally, the trial court observed: ‘‘Each of these witnesses has testified before this court on a prior occasion
in [State v. Bunn, Superior Court, judicial district of
New Haven, Docket No. NNH-CR15-0158844-T], and
were among the witnesses that, in light of the verdict,
were credited by a jury. This court found their testimony
in that case to be credible.’’ The court further observed
that, ‘‘even if the state had not presented any corrobora-
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tion [of the witnesses’ testimony], their testimony standing alone was credible and reliable enough, and
[therefore] worth[y] of consideration by the jury.’’
After issuing its ruling, the trial court asked both
parties whether there was anything else they needed
to address. Defense counsel requested ‘‘a specific ruling
as to one of the claims’’ made during the previous day.
The court issued the ruling, which is not at issue in this
appeal, and indicated that it understood that defense
counsel ‘‘ha[s] to make the record for any future proceedings, if there are any.’’ The court then gave the
parties an additional opportunity to raise further questions or objections before concluding the hearing.
As a preliminary matter, we set forth the standard
of review. It is well established that a trial court’s ruling
on evidentiary matters will not be disturbed unless the
court abused its discretion. See, e.g., State v. Mark T.,
339 Conn. 225, 232,
260 A.3d 402 (2021) (‘‘[i]n determining whether there has been an abuse of discretion, every
reasonable presumption should be made in favor of the
correctness of the trial court’s ruling’’ (internal quotation marks omitted)). We likewise review a trial court’s
decision to open the evidence under the abuse of discretion standard. See, e.g., State v. Allen, 205 Conn. 370,
380,
533 A.2d 559 (1987) (‘‘[t]he reopening of a criminal
case either to present omitted evidence or to add further
testimony after either of the parties has rested is within
the sound discretion of the [t]rial [c]ourt’’ (internal quotation marks omitted)).
We disagree with the defendant that the trial court
abused its discretion in granting the state’s motion to
open the reliability hearing to allow the state to introduce evidence that the parties had referenced during
the hearing. The court found that the state’s failure
to introduce this evidence was merely attributable to
‘‘inadvertence’’ and that the defendant was aware of
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the evidence the state sought to admit. See, e.g., State
v. Freeman, 132 Conn. App. 438, 446,
33 A.3d 256 (2011)
(court did not abuse its discretion in opening pretrial
hearing when state ‘‘inadvertently excluded . . . testimony from the . . . hearing’’ and ‘‘[t]he additional testimony offered . . . [came] as no surprise to the
defendant’’ (internal quotation marks omitted)), aff’d,
310 Conn. 370,
77 A.3d 745 (2013). We note that most,
if not all, of the admitted evidence was part of the
discovery turned over to the defense pursuant to § 54-
86o, which, under § 54-86p (a), the court properly could
have considered, even if it had not been admitted at
the reliability hearing. See General Statutes § 54-86p (a)
(‘‘[t]he court shall make a prima facie determination
concerning the reliability of [a jailhouse witness’] testimony after evaluation of the evidence submitted at the
hearing and the information or material disclosed pursuant to subdivisions (1) to (5), inclusive, of subsection (a) of section 54-86o’’ (emphasis added)). In light
of the foregoing, and because the defendant has not
identified any prejudice resulting from the trial court’s
ruling, we cannot conclude that the trial court abused
its discretion in opening the reliability hearing for the
purpose of completing the record.
We also disagree with the defendant that the trial
court erred in concluding that Helwig’s and Burton’s
testimony was sufficiently reliable to be presented to
the jury. Section 54-86p (a) provides in relevant part:
‘‘The court shall make a prima facie determination concerning the reliability of [a jailhouse witness’] testimony
after evaluation of the evidence submitted at the hearing
and the information or material disclosed pursuant to
subdivisions (1) to (5), inclusive, of subsection (a) of
section 54-86o, and may consider the following factors:
(1) The extent to which the . . . testimony is confirmed by other evidence; (2) The specificity of the
testimony; (3) The extent to which the testimony con-
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tains details known only by the perpetrator of the
alleged offense; (4) The extent to which the details of
the testimony could be obtained from a source other
than the defendant; and (5) The circumstances under
which the jailhouse witness initially provided information supporting such testimony to . . . a prosecutorial
official, including whether the jailhouse witness was
responding to a leading question.’’ Importantly, the statute does not provide that any one of the enumerated
factors is dispositive or that any are mandatory considerations. See State v. Christopher S., 338 Conn. 255,
288, 257 A.3d 912 (2021) (‘‘[a]lthough corroborating evidence is included in the list [of factors in § 54-86p (a)],
it is only one factor that the court may consider’’).
In considering Helwig’s testimony, the trial court
made explicit findings under subdivisions (1), (2), (3),
and (5) of § 54-86p (a) in concluding that his testimony
was sufficiently reliable to be admitted at trial. The
court made similar explicit findings relating to Burton’s
testimony. Although Burton could offer very little information about the murder, the court noted that his
account was largely corroborated by Helwig’s testimony in that both men described what was essentially
a robbery gone wrong, and both stated that the defendant did not know the victim. The court further found
that Burton provided a detailed description of the
alleged murder weapon and testified to having handled
the weapon himself on occasion. In short, the record
reveals that the court underwent a careful review of
the hearing record, the legal arguments advanced by
both parties, and the statutory factors enumerated in
§ 54-86p (a) in concluding that Helwig’s and Burton’s
testimony was sufficiently reliable to be admissible.
We turn, therefore, to the defendant’s contention that
the trial court abused its discretion in considering its
own assessment of Helwig’s and Burton’s testimony in
Bunn in concluding that their testimony was sufficiently
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reliable to be admitted in the present case. Although
we agree that the trial court erroneously included this
assessment in its pretrial ruling, we conclude that this
error was harmless. See, e.g., State v. Raynor, 337 Conn.
527, 541,
254 A.3d 874 (2020) (‘‘[i]n order to establish
the harmfulness of a trial court ruling, the defendant
must show that it is more probable than not that the
improper action affected the result’’ (internal quotation
marks omitted)).
We begin our analysis by noting that § 54-86p (a)
permits a court, in making its prima facie reliability
determination, to evaluate not only evidence submitted
at the hearing, but also ‘‘the information . . . disclosed
pursuant to . . . subsection (a) of section 54-86o
. . . .’’ General Statutes § 54-86p (a). This includes
‘‘[i]nformation concerning any other criminal prosecution in which the jailhouse witness testified . . .
against a person suspected as the perpetrator of an
offense . . . .’’ (Emphasis added.) General Statutes
§ 54-86o (a) (5). Thus, the trial court was clearly authorized to consider ‘‘information’’ concerning Helwig’s and
Burton’s participation in Bunn.
Although the trial court likely understood ‘‘information’’ to include its own prior credibility assessment,
we do not interpret the statute’s use of the term ‘‘information’’ so broadly. Section 54-86o (a) sets forth the
state’s disclosure obligations when it seeks to introduce
testimony of a jailhouse witness in a criminal prosecution. Section 54-86o (a) (5) requires the state to disclose
to the defendant information relating to the other prosecutions in which the witness may have participated on
behalf of the state. This includes, if applicable, the fact
that the witness has testified previously and details
about how many other proceedings in which the witness
has participated. It follows that the defendant could
use this information in attacking the witness’ credibility
both at a § 54-86p reliability hearing and, potentially,
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later during cross-examination at trial. Thus, the trial
court’s prior credibility assessment of a testifying witness in a jury trial, in which the court was not serving
as the fact finder, is not relevant information under
§ 54-86o (a) (5). This credibility assessment of a witness
could not be utilized by both parties in the same manner
as the information properly discoverable under § 54-
86o (a) (5), including the number of times the witness
previously has testified and the verdicts in those cases.
We therefore instruct trial courts to rely on objective
criteria, to which all parties would have access through
the discovery process, in considering information disclosed pursuant to § 54-86o (a) (5) for purposes of making a prima facie reliability determination under § 54-
86p (a). This is consistent with the language of the
statute, which allows the parties and the trial court to
consider the witness’ participation on behalf of the state
but does not include this type of collateral assessment
of a witness’ testimony.
However, because it is clear that the trial court would
have found Helwig’s and Burton’s testimony sufficiently
reliable to be admitted utilizing only permissible statutory factors under § 54-86p, we conclude that the error
was harmless. The trial court’s prior credibility assessment was one of many factors that the court considered
in determining that Helwig’s and Burton’s testimony
was sufficiently reliable to be presented to the jury.
There is nothing in the record to suggest that it was a
dispositive factor or that the court’s decision might
have been different in its absence. Moreover, defense
counsel had ample opportunity to impeach Helwig’s
and Burton’s credibility at trial and thoroughly availed
himself of that opportunity through cross-examination
and in closing argument, during which he cataloged
every conceivable reason why their testimony should
not be credited. For all of these reasons, there is no
error warranting reversal of the judgment.
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State v. Bember
III
The defendant finally claims that the trial court erred
in denying his motion to suppress the recording of a
phone call that he had made while incarcerated and
the .22 caliber revolver that the police had seized as
a result of information acquired from the recording.
Although the defendant acknowledges that inmate
phone calls may be monitored and recorded for purposes of prison safety, he contends that the fourth
amendment to the United States constitution10 prohibits
the state from using pretrial detainee phone call
recordings for investigative purposes.11 The state argues
that the defendant had no reasonable expectation of
privacy in his nonprivileged phone calls, and, thus, the
subsequent use of the recording did not implicate the
fourth amendment.
The following additional facts are relevant to our
resolution of this claim. In March, 2014, the defendant
placed a phone call to his then girlfriend, Lavenia Darden, while being held in pretrial detention on unrelated
charges. During the call, which was recorded and moni-
10
The fourth amendment to the United States constitution provides: ‘‘The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons
or things to be seized.’’
The fourth amendment’s protection against unreasonable searches and
seizures is made applicable to the states through the due process clause of
the fourteenth amendment to the United States constitution. See, e.g., Mapp
v. Ohio, 367 U.S. 643, 655,
81 S. Ct. 1684,
6 L. Ed. 2d 1081 (1961).
11
The defendant additionally claims that monitoring inmate calls ‘‘may
have a chilling effect on speech’’ and ‘‘can give rise to first amendment
concerns.’’ Because this statement constitutes the entirety of the defendant’s
argument concerning this issue, we agree with the state that the claim is
inadequately briefed, and, therefore, we decline to review it. See, e.g., State
v. Buhl, 321 Conn. 688, 726,
138 A.3d 868 (2016) (‘‘[The] relative sparsity
[of briefing] weighs in favor of concluding that the argument has been
inadequately briefed. This is especially so with regard to first amendment
and other constitutional claims, which are often analytically complex.’’).
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State v. Bember
tored by the Department of Correction, the defendant
referred to a .22 caliber firearm that he had given to
Darden for safekeeping. At the time of the call, Darden
lived at her grandmother’s home in New Haven. In April,
2014, the Department of Correction sent the recording
to the New Haven Police Department, which obtained
permission from Darden’s grandmother to search her
residence for the firearm. During the search, the police
located a small .22 caliber revolver with black tape on
the handle and eight rounds of ammunition in a closet
in Darden’s bedroom. The next day, Darden gave a
statement to the police identifying the revolver as
belonging to the defendant.
Before trial, the defendant filed a motion to suppress
the recording of his phone conversation with Darden
as an illegal search in violation of the fourth amendment. He also sought to suppress the .22 caliber revolver
and ammunition as fruits of the allegedly unlawful
search. At the hearing on the motion to suppress, the
defendant stipulated that, at the time of his admission
to the correctional facility, he was notified and signed
a waiver acknowledging that all his nonprivileged phone
calls were subject to recording and monitoring. The
defendant further stipulated that, at the time of his call
to Darden, he was aware that the phone calls of all
inmates, pretrial detainees and convicted inmates alike,
were subject to recording and monitoring, and that
there were signs posted near the phones reminding
inmates of this policy. Finally, the defendant stipulated
that, at the beginning of his call to Darden, a recorded
message notified him that the call was subject to
recording and monitoring, and that this message
repeated at regular intervals throughout the call.
After stipulating to the foregoing facts, defense counsel argued that the defense ‘‘[did] not dispute the legitimate penological interests of the Department of
Correction, as reflected in its regulations and its prac-
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State v. Bember
tice, to monitor the calls . . . of all inmates.’’ Defense
counsel further acknowledged that the Department of
Correction was responsible for the protection and
safety of all inmates, pretrial detainees and convicted
inmates alike, and that the recording and monitoring
policy furthered institutional safety concerns. Defense
counsel argued, however, that, in the case of pretrial
detainees still ‘‘cloaked in the presumption of innocence, unable to make bond,’’ the Department of Correction has ‘‘no right to become adjuncts to the
investigative process’’ and that ‘‘a presumption of privacy for pretrial detainees at least with respect to law
enforcement purposes’’ should prevail and preclude the
department from turning recordings of their phone calls
over to the police.
At the conclusion of the hearing, the trial court denied
the defendant’s motion to suppress. The court observed
that, in applying the federal constitution, courts uniformly have held that an inmate’s limited privacy rights
do not include a right to make unmonitored, nonprivileged phone calls. The court explained that, without a
reasonable expectation of privacy, there can be no
fourth amendment violation. The court further observed
that, although defense counsel had argued that a distinction should be drawn between the privacy rights of
pretrial detainees and convicted inmates with respect
to their phone calls, he had not cited a single case in
which such a distinction had been drawn, whereas the
court was aware of many cases rejecting the existence
of any such distinction.
We agree with the trial court that the defendant’s
claim is without merit. Whether the defendant had a
right to privacy in his nonprivileged prison phone calls
presents a question of law, over which we exercise
plenary review. See, e.g., State v. Houghtaling, 326
Conn. 330, 340–41,
163 A.3d 563 (2017), cert. denied,
584 U.S. 949,
138 S. Ct. 1593,
200 L. Ed. 2d 776 (2018).
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State v. Bember
‘‘To receive fourth amendment protection against
unreasonable searches and seizures, a defendant must
have a legitimate expectation of privacy in the [subject
of the search]. . . . [In the absence of] such an expectation, the subsequent police action has no constitutional ramifications.’’ (Internal quotation marks
omitted.) State v. Russo, 259 Conn. 436, 441 n.7,
790
A.2d 1132, cert. denied,
537 U.S. 879,
123 S. Ct. 79,
154
L. Ed. 2d 134 (2002); see also State v.
Houghtaling,
supra, 341 (‘‘[t]o determine whether a person has a
reasonable expectation of privacy in an invaded place
or seized effect, that person must satisfy [both the subjective and objective prongs of] the Katz12 test’’). ‘‘The
burden of proving the existence of a reasonable expectation of privacy rests [with] the defendant.’’ (Internal
quotation marks omitted.) State v. Jacques, 332 Conn.
271, 279,
210 A.3d 533 (2019).
In Washington v. Meachum, 238 Conn. 692,
680 A.2d
262 (1996), this court held that ‘‘[t]he inmates of Connecticut’s correctional institutions . . . have no reasonable expectation of privacy in their nonprivileged
telephone calls and [that] those calls may be monitored
and recorded.’’ Id., 725. We concluded that, even if
inmates retain a subjective privacy interest in their nonprivileged calls, ‘‘[t]he general law of privacy attendant
upon incarceration, and the recognized need for institutional security, clearly do not legitimize such an expectation.’’ Id., 724.
The defendant does not ask this court to reconsider
Meachum but, instead, urges us to recognize a fourth
amendment distinction between the privacy expectations of pretrial detainees and convicted inmates in
their nonprivileged phone calls. We need not reach this
issue because we conclude that the defendant in the
12
Katz v. United States, 389 U.S. 347, 361,
88 S. Ct. 507, 19 L. Ed. 2d. 576
(1967) (Harlan, J., concurring).
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State v. Bember
present case maintained no subjective expectation of
privacy. See State v. Houghtaling, supra, 326 Conn
341–42 (‘‘In analyzing the subjective prong of the Katz
test, we look for actions or conduct demonstrating that
the defendant sought to preserve the property or location as private. . . . Although this prong is the subjective portion of the test, it does not rest solely on the
defendant’s actual beliefs.’’ (Citations omitted; internal
quotation marks omitted.)).
As he stipulated to at the hearing on his motion to
suppress, the defendant was notified and signed a
waiver acknowledging that all nonprivileged calls were
subject to recording and monitoring. Further, there
were signs posted near the phone area at the correctional facility and a recorded message played throughout the defendant’s call with Darden, reminding him
that his call was subject to recording and monitoring.
Nothing about the defendant’s actions in placing a call
under these conditions indicates an intent to preserve
the contents of the call as private. See id., 348 (‘‘we
reaffirm that courts should properly test a defendant’s
subjective expectations by looking for conduct demonstrating an intent to preserve [something] as private
and free from knowing exposure to the view of others’’
(internal quotation marks omitted)). Because the defendant failed to demonstrate that he maintained a subjective expectation of privacy in the content of his phone
call to Darden, ‘‘the subsequent police action ha[d] no
constitutional ramifications.’’ (Internal quotation marks
omitted.) State v. Correa, 340 Conn. 619, 640,
264 A.3d
894 (2021); cf. United States v. Eggleston,
165 F.3d 624,
626 (8th Cir.) (‘‘The defendant concedes that he agreed
to the recording and monitoring of the calls, but argued
that he did not consent to their use in evidence against
him. We do not think that the loaf can be sliced so thin.
If someone agrees that the police may listen to his
conversations and may record them, all reasonable
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State v. Bember
expectation of privacy is lost, and there is no legitimate
reason to think that the recordings, like any other evidence lawfully discovered, would not be admissible.’’),
cert. denied, 526 U.S. 1031,
119 S. Ct. 1280,
143 L. Ed.
2d 373 (1999); People v. Diaz,
33 N.Y.3d 92, 99–100,
122
N.E.3d 61,
98 N.Y.S.3d 544 (‘‘[when pretrial] detainees
are aware that their phone calls are being [monitored
and] recorded, all reasonable expectation of privacy in
the content of those phone calls is lost, and there is no
legitimate reason to think that the recordings, like any
other evidence lawfully discovered, would not be admissible’’ (internal quotation marks omitted)), cert. denied,
U.S. , 140 S. Ct. 394,
205 L. Ed. 2d 215 (2019).
In light of the foregoing, the defendant cannot prevail
on his claim that the trial court erred in denying his
motion to suppress.
The judgment is affirmed.
In this opinion the other justices concurred.
