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State v. Iverson
STATE OF CONNECTICUT v.
CHRISTOPHER J. IVERSON
(SC 20844)
Mullins, C. J., and McDonald, D’Auria, Ecker,
Alexander, Dannehy and Bright, Js.
Syllabus
Convicted of murder, attempt to commit murder, burglary in the first degree,
and arson in the first degree in connection with the stabbing death of the
victim and assault of the victim’s son, the defendant appealed to this court.
The defendant claimed that the trial court had improperly denied his request
to charge the jury on manslaughter in the first degree as a lesser included
offense of murder and had improperly admitted a report concerning the
victim’s autopsy that was prepared by a medical examiner who did not
testify at the defendant’s trial. Held:
The trial court correctly determined that the defendant was not entitled to
an instruction on the lesser included offense of manslaughter in the first
degree, the defendant having failed to demonstrate that he satisfied either
the third or the fourth prong of the test set forth in State v. Whistnant (179
Conn. 576) for determining whether a defendant is entitled to a lesser
included offense instruction.
The defendant did not present sufficient evidence at trial to justify a conviction of manslaughter in the first degree, and the evidence presented with
respect to the element that differentiates manslaughter from murder, namely,
whether the defendant acted recklessly with extreme indifference to human
life or whether he acted intentionally, was not sufficiently in dispute to
permit the jury to find the defendant not guilty of murder but guilty of first
degree manslaughter.
Specifically, the state presented overwhelming evidence that the defendant
had intended to kill the victim, and there was no evidence that would have
supported a conclusion that the defendant had acted recklessly in causing
the victim’s death.
The defendant could not prevail on his unpreserved claim that the trial
court had improperly admitted into evidence an autopsy report that was
prepared by a medical examiner who performed the autopsy but who did
not testify at the defendant’s trial, in violation of the defendant’s constitutional right to confrontation.
Because defense counsel made a strategic decision at trial not to object to
the admission of the autopsy report, autopsy photographs, and the testimony
of another medical examiner who observed the autopsy and testified about
the autopsy on the basis of her own opinions, defense counsel waived the
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State v. Iverson
defendant’s confrontation clause claim, and the defendant’s claim on appeal
therefore failed under the third prong of State v. Golding (213 Conn. 233),
as modified by In re Yasiel R. (317 Conn. 773).
Argued April 17—officially released July 15, 2025
Procedural History
Substitute information charging the defendant with
the crimes of murder, attempt to commit murder, burglary in the first degree, and arson in the first degree,
brought to the Superior Court in the judicial district of
Waterbury and tried to the jury before Kwak, 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).
Nathan J. Buchok, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attorney, Don Therkildsen, supervisory assistant state’s
attorney, and Alexandra Arroyo, assistant state’s attorney, for the appellee (state).
Opinion
MULLINS, C. J. Following a trial, the jury found the
defendant, Christopher J. Iverson, guilty of murder in
violation of General Statutes § 53a-54a (a), attempted
murder in violation of General Statutes § 53a-49 (a) (2)
and § 53a-54a (a), burglary in the first degree in violation
of General Statutes § 53a-101 (a) (3), and arson in the
first degree in violation of General Statutes § 53a-111 (a)
(1). The trial court subsequently sentenced the defendant to a total effective sentence of 105 years of imprisonment for those crimes. In this direct appeal,1 the
defendant asserts that the trial court improperly (1) denied
his request to charge the jury on the lesser included offense
1
Pursuant to General Statutes § 51-199 (b) (3), ‘‘an appeal in any criminal
action involving a conviction for a . . . class A felony’’ shall be taken
directly to this court.
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State v. Iverson
of manslaughter in the first degree, and (2) admitted
into evidence an autopsy report authored by a nontestifying expert in violation of his confrontation rights
under the federal constitution. Because the evidence was
insufficient to justify an instruction on the lesser included
offense of manslaughter and the defendant waived any
challenge to the admission of the autopsy report, we
affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On August 28, 2018, the victim was at home with
her eleven year old son, J.2 The victim’s husband was
out of the home, working an overnight shift. In the
early morning hours, J was woken up when the victim
suddenly grabbed his leg. She begged J to ‘‘call your
daddy, I’m getting killed.’’ J saw the defendant, whom
he recognized as a longtime family friend, stabbing the
victim with a knife from the home’s kitchen knife set.
J sprang into action and shoved the defendant away
from the victim. The defendant then ran back toward
the victim and continued to stab her. During this vicious
attack, the victim asked the defendant, ‘‘[w]hy are you
doing this,’’ to which the defendant responded, ‘‘[b]ecause
I hate you.’’ The defendant continued to stab the victim
until she ultimately collapsed on the bedroom floor and
bled to death.
After fatally stabbing the victim, the defendant threatened to ‘‘slice [J’s] throat’’ if he identified the defendant
as the perpetrator. The defendant next grabbed J and
tied him to a chair near his deceased mother, using a
pair of headphones, a jump rope, and J’s karate belt.
The defendant then went into the kitchen and grabbed
2
In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106,
136 Stat. 49, 851; we decline to identify any person
protected or sought to be protected under a protection order, protective
order, or a restraining order that was issued or applied for, or others through
whom that person’s identity may be ascertained.
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State v. Iverson
a beer bottle. He returned to the bedroom and struck
J in the back of his head with the beer bottle, rendering
him unconscious. While J was unconscious, the defendant entered the bedroom of the victim and her husband, took one of her husband’s clean shirts and put
it on. He took off his dirty shirt and wrapped it around
the bloody knife before returning to J’s bedroom to
take the victim’s and J’s cell phones.
After changing his shirt, the defendant set fire to the
bedspread in the victim and her husband’s bedroom, the
shear window curtain in the living room, the bathroom
shower curtain, and the bathroom window curtain.
Believing the fires would engulf the crime scene and
kill J, the defendant left the victim’s home and walked
toward his own home, disposing of his shirt, the knife,
and the cell phones in two different storm drains along
the way.
Once the victim’s husband finished his work shift,
he drove directly home and arrived around 7:15 a.m.
Noticing that the back door was slightly ajar, the victim’s husband entered the home and found that the
lights were off and the home smelled of smoke. J freed
himself from his restraints and yelled to his father to
‘‘come go look in my room.’’ The victim’s husband raced
into J’s room and found the victim on the floor covered
in cuts and blood. The victim’s husband called 911 and
performed cardiopulmonary resuscitation until the police
arrived. Once the police and paramedics arrived on the
scene, the paramedics pronounced the victim dead.
Shortly thereafter, J identified the defendant as the
perpetrator, and the police immediately brought the
defendant in for questioning. The defendant signed a
Miranda3 waiver and spoke with detectives. Initially,
the defendant claimed that the last time he had spoken
to anyone from the victim’s family was one week prior,
3
Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).
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State v. Iverson
when they all had returned from a joint family vacation
in Florida. He further denied going to the victim’s residence that evening and claimed he was in bed by 1 a.m.
Eventually, however, the defendant admitted that he
had an affair with the victim that had ended several
years earlier. He claimed that, on the evening of the
incident, the victim invited him over. When he arrived,
the victim was intoxicated4 and held a frying pan decorated with yellow flowers5 in one hand and a knife in
the other. The victim then told the defendant, ‘‘you’re
not going to leave here alive anyway.’’ The victim and
the defendant began to ‘‘tussle . . . .’’ According to the
defendant, the victim had already tied up J in his room.
The defendant told the police that he tried to flee into
the victim and her husband’s bedroom but that the
victim took a yellow BIC lighter and flicked it on the
bed, causing the mattress to ignite. He claimed that he
then went back into J’s room and attempted to untie
him, but the victim jumped on his back and the two
tumbled to the ground. During the scuffle, he heard the
victim exclaim that she stabbed herself. The defendant
said that he did not remember anything beyond that
and believed he must have then blacked out.6
When detectives confronted the defendant about the
possibility that he could have stabbed the victim after
the ‘‘tussle’’ without realizing it, he first responded, ‘‘no’’
but then said, ‘‘I’m not even sure. I’m not gonna say
yes. I’m not gonna say no.’’ The defendant claimed that,
when he awoke from his blackout, he saw the knife
4
Despite the defendant’s assertion that the victim was intoxicated and
that he could smell alcohol on her breath, ‘‘the toxicology report was negative
for any [alcohol] . . . .’’
5
Investigators never recovered a frying pan matching the defendant’s
description at the scene.
6
At trial, the defendant did not claim that he acted in self-defense or seek
a self-defense instruction. He also admitted during cross-examination that
whoever stabbed the victim did so intentionally.
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State v. Iverson
sticking out of the victim and took the knife out of her
body. He explained that he then left the house out of
fear and walked home. He told the detectives that, on
his way home, he purchased a bottle of water from the
gas station to wash his hands of the victim’s blood.
After adamantly denying that he took the victim’s and
J’s cell phones, the defendant finally admitted that he
did take them from the scene. The defendant then
directed Detective Peter Morgan to two different storm
drains located along the route he took to go home. The
police recovered the cell phones and the knife wrapped
in a shirt from the two storm drains. Shortly thereafter,
the defendant was arrested.
The victim’s autopsy revealed that her ‘‘cause of death
[was] sharp force injuries of the torso and extremities.’’
Sharp force injuries are ‘‘a classification of injuries . . .
use[d] to describe any time a sharp implement is used
to cut someone’s body.’’ More precisely, the victim sustained twenty-six ‘‘stab wounds and incised wounds’’
to her body. Nine of them were stab wounds, meaning
that they were ‘‘deeper into the body than they [were]
long on the surface of the skin.’’ Seventeen were incised
wounds, meaning that they were ‘‘longer on the skin
[than] they [were] deep.’’ Three of the stab wounds
were to the victim’s neck, chest, and right armpit. The
other six were on her back, aligned along the left side
of the spine. One of the wounds, cutting into her jugular
vein, likely caused a ‘‘significant amount of bleeding
. . . .’’ The deepest penetration of the stab wounds was
about four inches.
The seventeen incised wounds were primarily found
on the victim’s upper extremities, including her hands.
The location of the wounds on her hands was consistent
with her trying to defend herself. Further examination
revealed that the victim also had blunt force injuries
to the head, as well as indications that she was strangled. The medical examiner concluded that the victim
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State v. Iverson
died from the collective blood loss caused by the
twenty-six sharp force injuries.
After a trial, the jury found the defendant guilty on
all counts. This appeal followed. Additional facts and
procedural history will be set forth as necessary.
I
On appeal, the defendant first asserts that the trial
court improperly denied his request to charge the jury
on the lesser included offense of manslaughter in the
first degree. Specifically, the defendant claims that he
was entitled to an instruction on this lesser included
offense pursuant to State v. Whistnant, 179 Conn. 576,
427 A.2d 414 (1980), because the evidence adduced at
trial would have permitted the jury to find the defendant
guilty of manslaughter in the first degree. We disagree.
The applicable legal principles are well established.
‘‘Although there is no constitutional right to have a jury
consider possible lesser included offenses, Connecticut
law entitles a defendant to a lesser included offense
charge if his request satisfies the four requirements set
forth in State v. Whistnant, [supra,
179 Conn. 588].’’
State v. Crafts, 226 Conn. 237, 250,
627 A.2d 877 (1993).
‘‘A defendant is entitled to an instruction on a lesser
offense if, and only if, the following conditions are met:
(1) an appropriate instruction is requested by either the
state or the defendant; (2) it is not possible to commit
the greater offense, in the manner described in the
information or bill of particulars, without having first
committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a
combination of their proofs, [that] justifies conviction
of the lesser offense; and (4) the proof on the element
or elements [that] differentiate the lesser offense from
the offense charged is sufficiently in dispute to permit
the jury consistently to find the defendant [not guilty]
of the greater offense but guilty of the lesser.’’ State v.
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State v. Iverson
Whistnant, supra, 588. ‘‘The Whistnant test is conjunctive, requiring satisfaction of all four prongs.’’ State v.
Smith, 262 Conn. 453, 461,
815 A.2d 1216 (2003).
‘‘The defendant’s claim that he had improperly been
denied an instruction on a lesser included offense
requires us, on appeal, to review the facts in the light
most favorable to the defendant. . . . Whether one
offense is a lesser included offense of another presents
a question of law. . . . Accordingly, our review is de
novo.’’ (Internal quotation marks omitted.) State v. Marsala, 337 Conn. 55, 65,
252 A.3d 349 (2020).
We are unpersuaded by the defendant’s contention
that he meets all the requirements of the Whistnant
test. Instead, we conclude that his claim fails on the
third and fourth Whistnant prongs. See, e.g., State v.
Jones, 289 Conn. 742, 762,
961 A.2d 322 (2008) (‘‘[d]espite
being conceptually distinct parts of the Whistnant formulation, the third and fourth prongs are subject to the
same evidentiary analysis . . . [and, therefore, can be
analyzed] simultaneously’’ (internal quotation marks
omitted)). The defendant fails to meet the third prong
because there was not sufficient evidence presented at
trial to justify a conviction of manslaughter in the first
degree. The defendant also fails to meet the fourth prong
because the evidence presented on the element that
differentiates manslaughter from murder—whether the
defendant acted recklessly with extreme indifference
to human life for manslaughter or acted intentionally
for murder—was not sufficiently in dispute to permit
the jury consistently to find the defendant not guilty of
murder but guilty of manslaughter.7
7
Manslaughter in the first degree under General Statutes § 53a-55 (a) (3)
requires ‘‘that the defendant must have (1) engaged in conduct that created
a grave risk of death, (2) acted recklessly, (3) acted under circumstances
evincing an extreme indifference to human life, and (4) caused the death
of the victim.’’ State v. Hughes, 341 Conn. 387, 405,
267 A.3d 81 (2021).
Murder, on the other hand, requires the defendant to act ‘‘with intent to
cause the death of another person, [and also requires that] he causes the
death of such person . . . .’’ General Statutes § 53a-54a (a).
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State v. Iverson
The state unquestionably presented overwhelming
evidence that the defendant had intended to kill the
victim, and there was no evidence that would have supported a conclusion that the defendant acted recklessly
in causing the victim’s death. To start, the nature and
extent of the victim’s injuries demonstrated an intent to
kill rather than recklessness. As this court has explained,
the defendant’s intent to kill can be inferred from evidence that the defendant used a deadly weapon and
from the nature and number of wounds inflicted. See,
e.g., State v. Coleman, 304 Conn. 161, 167–68,
37 A.3d
713 (2012) (‘‘[t]he fact that the defendant stabbed [the
victim] in her chest with a knife and did so deeply
enough to penetrate her heart . . . would support an
inference that he intended to kill her’’); State v. Edwards,
247 Conn. 318, 322–23,
721 A.2d 519 (1998) (‘‘[w]e have
stated that [o]ne who uses a deadly weapon [on] a vital
part of another will be deemed to have intended the probable result of that act, and from such a circumstance a
proper inference may be drawn in some cases that there
was an intent to kill’’ (internal quotation marks omitted)).
In the present case, the evidence established that the
defendant used a kitchen knife to stab the victim and that
she had twenty-six sharp force wounds. In addition, the
evidence established that six of the stab wounds were in
a fairly straight line on her back and that one of the stab
wounds consisted of a cut through her jugular vein. See
State v. Rasmussen, 225 Conn. 55, 72–73,
621 A.2d 728
(1993) (rejecting claim that trial court should have instructed
jury on lesser included offenses of manslaughter because
‘‘[i]t requires nothing more than common sense to conclude that slashes to the neck of a conscious victim
that severed the victim’s jugular vein . . . are evidence
of an intent to kill rather than mere recklessness’’). Given
the nature and extent of the victim’s wounds, we conclude that there was overwhelming evidence of the defendant’s intent to cause the death of the victim. During
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State v. Iverson
cross-examination, the defendant agreed that whoever
murdered the victim did so intentionally and not accidentally.
Moreover, we also are unconvinced by the defendant’s argument that, because this was a sudden confrontation that was ‘‘spontaneous, unplanned, and lacked
motive,’’ he was entitled to an instruction on manslaughter in the first degree. As additional circumstances supporting this argument, he contends that he blacked out
during the altercation and that the victim sustained only
two stab wounds, the one to her hand and the other to
her chest, while he was conscious. He testified that it
was the victim who accidentally inflicted both of these
wounds on herself while he was trying to run away.
‘‘It is well established that intent [can] be formed
instantaneously and [does] not require any specific
period of time for thought or premeditation for its formation.’’ (Internal quotation marks omitted.) State v.
Brown, 345 Conn. 354, 373 n.10,
285 A.3d 367 (2022).
In State v. Crafts, supra,
226 Conn. 237, the defendant,
who was charged with murder, claimed that he was
entitled to instructions on the offenses of manslaughter
in the first and second degree because the evidence at
trial suggested a sudden confrontation that resulted in
the victim’s death. Id., 238, 251–52. This court rejected
the defendant’s claim of a sudden confrontation as ‘‘too
speculative’’ on the basis of the preplanning evidence
that the defendant had rented a woodchipper before
the killing to dispose of the victim’s body. Id., 251.
Here, although there was no evidence of preplanning
presented at trial, the defendant’s own testimony does
not supply the factual basis necessary to support a
charge for manslaughter. He testified that the victim’s
fatal wounds were inflicted while he was unconscious
and that he did not know who was responsible for
stabbing the victim multiple times. He also testified that
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State v. Iverson
he was defending himself from the victim’s attack and
that at least some of her wounds were self-inflicted.
Thus, the defendant denied engaging in any conduct,
reckless or otherwise, that caused the victim’s death.
But see State v. Smith, supra,
262 Conn. 473, 476 (determining that defendant was entitled to instruction on manslaughter in first degree after he responded, when police
asked if he had killed victim, ‘‘I guess you could say
we both did, but not on purpose’’ (emphasis in original;
internal quotation marks omitted)). The defendant’s denial
of any conduct that would support a finding of recklessness fails to put the element of intent sufficiently in
dispute.
Indeed, in addition to the number and nature of the
stab wounds, J’s testimony further removes any dispute
regarding the intentional nature of this crime. J testified
that he was awoken by the victim, pulling at his leg, as
the defendant was attacking her. J then stated that he
tried to defend the victim from the brutal attack by
pushing the defendant away. The defendant, however,
was not deterred and instead charged back toward the
victim and resumed the attack. See State v. Greenfield,
228 Conn. 62, 78,
634 A.2d 879 (1993) (finding that
defendant intended to cause victim’s death after pursuing him through apartment). J also testified that, when
the victim begged the defendant to explain why he was
harming her, J heard the defendant reply that he hated
her. J’s testimony undoubtedly describes an intentional
killing at the hands of the defendant.
Thus, the defendant’s denial of any conduct—coupled
with his admission to the jury that whoever inflicted
the victim’s wounds did so intentionally, the severity,
depth and number of the victim’s stab wounds, and J’s
testimony about the sustained and vicious nature of the
attack—makes the defendant’s theory of a spontaneous
tussle far ‘‘too speculative’’ to warrant an instruction
on a lesser charge. See, e.g., State v. Tomlin, 266 Conn.
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State v. Iverson
608, 631, 835 A.2d 12 (2003) (‘‘[we] expressly [reject]
the proposition that a defendant is entitled to instructions on lesser included offenses based on merely theoretical or possible scenarios’’ (internal quotation marks
omitted)). Put differently, there is no construction of
this evidence, even in the light most favorable to the
defendant, that would suggest anything other than an
intentional killing.
In light of the evidence presented at trial, we cannot
conclude that the defendant satisfied either the third
or fourth prongs of Whistnant. We agree with the trial
court that the defendant was not entitled to an instruction on the lesser included offense of manslaughter in
the first degree.
II
The defendant also claims that the trial court improperly admitted into evidence an autopsy report prepared
by a nontestifying expert in violation of his right to
confrontation under the sixth and fourteenth amendments to the federal constitution. The defendant acknowledges that he did not raise this claim at trial, so he
seeks review of his claim pursuant to State v. Golding,
213 Conn. 233, 239–40,
567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188
(2015).8 The state asserts that defense counsel made a
strategic decision not to object to the autopsy report or
the medical examiner’s testimony and therefore has waived
this claim. Consequently, the state contends, there is
8
A defendant may prevail on an unpreserved claim under Golding when
‘‘(1) the record is adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Footnote omitted.) State v. Golding,
supra, 213 Conn. 239–40; see In re Yasiel
R., supra,
317 Conn. 781 (modifying
third prong of Golding).
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State v. Iverson
no constitutional violation because a waived claim fails
under the third prong of Golding. We agree with the
state.
The following additional facts and procedural history
are necessary for our resolution of this claim. On the
second day of trial, defense counsel sought to preclude
the state from admitting into evidence three photographs of the crime scene that depicted the victim’s
wounds. He argued that the photographs had little probative value because ‘‘there’s no dispute as to the cause
or manner of death in this case.’’ He further explained
that ‘‘[t]he crime scene [photographs] are not necessary
. . . to assist the medical examiner . . . in describing
the cause of death or the manner of death,’’ and, given
their gruesome nature, their probative value was outweighed by their prejudicial effect.
The prosecutor claimed that the crime scene photographs would corroborate not only the medical examiner’s testimony but also the testimony of J and the
paramedics. The court, concerned with cumulative evidence, asked the prosecutor, ‘‘[w]on’t the [medical
examiner] be able to show how many incisions or stab
wounds . . . the victim sustained?’’ The prosecutor
responded, ‘‘according to the [medical examiner’s]
report and the autopsy photographs, they will document every single wound.’’ (Emphasis added.) Defense
counsel responded that, even if the three crime scene
photographs were relevant, the rules of evidence still
permit the exclusion of evidence when there is ‘‘the
needless presentation of cumulative evidence . . . [and],
with what the [medical examiner is] bringing in, [that]
should be enough’’ to warrant exclusion of this evidence.
The court ‘‘agree[d] with [defense counsel] that [the
crime scene photographs] could be too prejudicial to
the defendant. Any information the state needs can
be brought forth through the [medical examiner]. The
number of stab wounds, the manner of death, that’s
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State v. Iverson
where [the court] think[s] it’s also cumulative . . . .’’
As a result, the court excluded two of the photographs,
but it allowed one of them to be admitted, as it was
merely a close-up of a previously admitted photograph.
The next day, when Deputy Chief Medical Examiner
Maura DeJoseph testified, she made it clear that, even
though she observed the autopsy, she did not personally
conduct the autopsy or author the autopsy report.9 She
explained that the author of the report, Associate Medical Examiner Angela McGuire, was no longer employed
by the Office of the Chief Medical Examiner. During
DeJoseph’s testimony, after she explained that she had
not conducted the autopsy, the prosecutor moved to
introduce into evidence the autopsy report authored by
McGuire.10 The trial court asked defense counsel directly
if he had any objections. Defense counsel replied, ‘‘[n]o,
Your Honor.’’ Thereafter, the trial court admitted the
exhibit containing the autopsy report.11 DeJoseph then
testified about what each autopsy photograph depicted
to catalog the victim’s various injuries for the jury.
9
When asked, ‘‘based on your autopsy of [the victim], within the bounds
of reasonable medical certainty, have you formed an expert opinion concerning her cause of death,’’ DeJoseph responded: ‘‘Yes. Just for clarification
though, I did not perform the autopsy, but I was present when the autopsy
was performed. So, I have reviewed everything and concluded—made my
own opinion about the findings.’’
10
The autopsy report was admitted into evidence as part of state’s exhibit
61. That exhibit was composed of the autopsy report, the anthropology
consultation report, the toxicology report, an identification form, a fingerprint identification form, an evidence-out receipt to the crime lab, and
an evidence-out receipt to the police department. The defendant does not
challenge the admission of the other reports in this exhibit on appeal. The
autopsy photographs of the victim’s body were not part of the autopsy
report and were addressed separately from the admission of the autopsy
report. See footnote 11 of this opinion.
11
The autopsy photographs are separate exhibits from the autopsy report.
The parties agreed, before DeJoseph’s testimony, that these photographs
would be admitted. When the prosecutor indicated to the court that there
was an agreement that these twenty-two photographs could be admitted as
full exhibits, defense counsel confirmed, ‘‘[t]hat is correct.’’
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State v. Iverson
Defense counsel had the opportunity to cross-examine
DeJoseph but declined to do so.
On appeal, the defendant asserts that he has satisfied
Golding because the trial court’s decision to admit the
autopsy report into evidence constituted a violation
of his constitutional right of confrontation and was
harmful. We disagree and conclude that his claim fails
under the third prong of Golding because he waived it.
It is well established that ‘‘[a] waived claim, as
opposed to an unpreserved claim, does not satisfy the
third prong of the Golding test because, in such circumstances, we simply cannot conclude that injustice [has
been] done to either party . . . or that the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial . . . . It is well established
that [a] defendant in a criminal prosecution may waive
one or more of his or her fundamental rights. . . . The
mechanism by which a right may be waived . . . varies
according to the right at stake. . . . For certain fundamental rights, the defendant must personally make an
informed waiver. . . . For other rights, however,
waiver may be effected by action of counsel. . . . The
decision to admit or exclude evidence on constitutional,
statutory, or evidentiary grounds is the type of tactical
trial decision that appropriately may be waived by counsel acting alone . . . .’’ (Citations omitted; internal quotation marks omitted.) State v. Culbreath, 340 Conn.
167, 179–80,
263 A.3d 350 (2021).
In the present case, a review of the record demonstrates that defense counsel was aware that DeJoseph
had not conducted the autopsy. Despite knowing this
fact, when the court asked defense counsel directly if
he had any objection to the admission of the report, he
replied, ‘‘[n]o, Your Honor.’’ The decision not to object
appears to be part of defense counsel’s trial strategy.
Indeed, at the hearing on the motion to suppress the
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crime scene photographs, defense counsel, in significant part, justified his objection to the admissibility
of the crime scene photographs on the basis of the
anticipated admission of the testimony of the medical
examiner regarding the number and extent of the victim’s injuries. To be sure, our review of the autopsy
photographs, the admission of which defense counsel
also did not object to, confirms that the number of stab
wounds and the manner of death are depicted in a more
sanitized manner than they are in the gruesome crime
scene photographs that defense counsel sought to
suppress.
On the basis of our thorough review of the record,
we conclude that defense counsel’s decision not to
object to the admission of the autopsy report was a
strategic decision made to strengthen his argument that
the court should preclude admission of the crime scene
photographs. Given that defense counsel made a strategic choice to seek to preclude the crime scene photographs but raised no objection to the admission of the
autopsy report, the medical examiner’s testimony or
the autopsy photographs, we cannot conclude that the
trial court violated the defendant’s constitutional rights
by admitting these items into evidence. See, e.g., Mozell
v. Commissioner of Correction, 291 Conn. 62, 73,
967
A.2d 41 (2009) (‘‘[t]o allow the [defendant] to seek reversal now that his trial strategy has failed would amount
to allowing him to induce potentially harmful error,
and then ambush the state with that claim on appeal’’
(internal quotation marks omitted)).
Lastly, the defendant claims that he could not waive
his constitutional claim because the controlling precedent changed in 2024, when the United States Supreme
Court decided Smith v. Arizona, 602 U.S. 779,
144 S.
Ct. 1785,
219 L. Ed. 2d 420 (2024). See State v. Johnson,
345 Conn. 174, 188–89,
283 A.3d 477 (2022) (‘‘when the
law governing a defendant’s constitutional claim has
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State v. Iverson
changed after the defendant’s trial, counsel acting under
binding precedent in effect at the time of the trial cannot
make a knowing and intelligent waiver of rights affected
by the later decision changing the law’’). We disagree
because Smith did not change the controlling law governing the defendant’s claim. Smith held in relevant
part that ‘‘[a] [s]tate may not introduce the testimonial
out-of-court statements of a forensic analyst at trial,
unless she is unavailable and the defendant has had a
prior chance to cross-examine her. . . . Neither may
the [s]tate introduce those statements through a surrogate analyst who did not participate in their creation.
. . . And nothing changes if the surrogate . . . presents the out-of-court statements as the basis for his
expert opinion.’’ (Citations omitted; emphasis added.)
Smith v. Arizona, supra, 802–803.
This holding is consistent with controlling precedent
in existence since at least 2011. Indeed, in Bullcoming
v. New Mexico, 564 U.S. 647,
131 S. Ct. 2705,
180 L.
Ed. 2d 610 (2011), the United States Supreme Court
explained that ‘‘surrogate testimony’’—when the testifying expert neither participated in nor observed the
test but worked in the same laboratory as the nontestifying expert who conducted the test—does not satisfy
the confrontation clause because the testifying ‘‘surrogate’’ could not convey what the original expert knew
or observed about the particular test utilized. Id., 652,
661. In State v. Walker,
332 Conn. 678,
212 A.3d 1244
(2019), decided more than three years before trial in
the present case, we relied on Bullcoming to hold that
an expert may testify regarding a nontestifying expert’s
results only if the testifying expert personally observed
the testing or retested the raw materials herself. Id.,
716–19.
In the present case, it is undisputed that DeJoseph
personally observed the autopsy being conducted,
reviewed the autopsy findings and photographs, and
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formed her own opinions. See footnote 9 of this opinion.
Because Smith v. Arizona, supra, 602 U.S. 779, did not
change the law regarding the constitutional right of
confrontation applicable to these circumstances, ‘‘we
must presume that defense counsel was aware of the
defendant’s federal constitutional claim and made a
strategic decision to waive it.’’ State v. Culbreath, supra,
340 Conn. 182.
Accordingly, defense counsel waived the defendant’s
constitutional claim at trial, and the defendant’s claim
fails under the third prong of Golding.
The judgment is affirmed.
In this opinion the other justices concurred.
