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State v. Jacques
STATE OF CONNECTICUT v. JEAN JACQUES
(SC 20781)
McDonald, D’Auria, Mullins, Ecker, Alexander,
Dannehy and Bright, Js.*
Syllabus
Convicted, after a second trial, of murder in connection with the stabbing
death of the victim, the defendant appealed to this court. The defendant
was convicted of murder after his first trial, but this court reversed his
conviction and remanded the case for a new trial on the ground that certain
illegally obtained evidence had been improperly admitted. Prior to the defendant’s second trial, defense counsel requested a second probable cause
hearing, but the trial court denied that request. The trial court also denied
the defendant’s pretrial motion to exclude the testimony of a jailhouse
informant, V, after making a threshold determination that V’s purported
testimony was reliable. At the defendant’s second trial, the trial court permitted the state to introduce, as a prior inconsistent statement, the written
statement of the defendant’s former cellmate, J, which J had given to the
police and which recounted certain inculpatory statements of the defendant.
J had testified at the defendant’s probable cause hearing and at his first
trial but later suffered a stroke prior to the defendant’s second trial that
allegedly resulted in memory loss. Although J testified at the defendant’s
second trial, the defense claimed that his alleged memory loss rendered
him functionally unavailable as a witness at the second trial. On appeal to
this court, the defendant challenged the trial court’s rulings on the request
for a second probable cause hearing and the admission of J’s statement to
the police and V’s testimony. Held:
The trial court did not violate the defendant’s state constitutional right to a
probable cause hearing by declining counsel’s request for a second probable
cause hearing after this court reversed the defendant’s conviction and
remanded the case for a second trial.
Neither the state constitution nor the statute (§ 54-46a) governing probable
cause hearings requires a second probable cause hearing when an appellate
* This case was originally argued before a panel of this court consisting
of Chief Justice Robinson and Justices McDonald, D’Auria, Mullins, Ecker,
Alexander and Dannehy. Thereafter, Chief Justice Robinson retired from
this court and did not participate in the consideration of this case. In addition,
Justice Bright was added to the panel and has read the briefs and appendices
and listened to a recording of oral argument prior to participating in this
decision.
The listing of justices reflects their seniority status on this court as of
the date of oral argument.
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State v. Jacques
court reverses a criminal conviction but does not dismiss the charge or
charges that resulted in that conviction, the fact that a reviewing court
determines that illegally obtained evidence should have been excluded at
the defendant’s trial has no impact on the earlier probable cause determination, and the defendant failed to demonstrate a jurisdictional defect that
would render the first probable cause hearing invalid and entitle him to a
second one.
The trial court did not violate the defendant’s federal constitutional right
to confrontation by admitting J’s written statement to the police, that court
having correctly determined that, despite J’s alleged memory loss, J was
available at the defendant’s second trial for purposes of the defendant’s
right to confrontation.
After reviewing federal and Connecticut case law, this court concluded that
J was available for cross-examination for purposes of any claimed violation
of the defendant’s right to confrontation because J appeared at the defendant’s second trial, took an oath to testify truthfully, testified that he understood the oath, and answered all questions asked of him during cross-examination, during which defense counsel had the opportunity to ask J
questions about his prior testimony, during the probable cause hearing and
the first trial, regarding his written statement to the police.
The trial court did not abuse its discretion in admitting J’s written statement
to the police as a prior inconsistent statement under State v. Whelan (200
Conn. 743) and the corresponding provision (§ 8-5 (1)) of the Connecticut
Code of Evidence.
J was available as a witness at the defendant’s second trial, it was of no
consequence that J could not explain the discrepancies between his written
statement to the police and his testimony, insofar as a denial of recollection
or a claim of memory loss can serve as the basis for a finding of inconsistency,
and defense counsel effectively had conceded that a police officer had typed
J’s statement and that J had signed it, which satisfied the other elements
for the admissibility of a prior inconsistent statement under Whelan and
§ 8-5 (1) of the Code of Evidence.
This court declined the defendant’s requests to adopt a prophylactic rule
under the state constitution, pursuant to which a witness would not be
considered available for cross-examination if, due to a valid medical condition, the witness has no memory of the incident at issue or of making an
out-of-court statement about the incident, and to exercise its supervisory
authority to modify § 8-5 (1) of the Code of Evidence to preclude the admission of a prior inconsistent statement when a witness who made the prior
statement has a medical condition that causes total memory loss.
The trial court did not abuse its discretion in making a prima facie determination that V’s purported testimony was reliable and therefore admissible at
the defendant’s second trial.
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State v. Jacques
The trial court considered the statutory (§§ 54-86o (a) and 54-86p (a)) factors
that may be considered when making a prima facie determination that a
jailhouse informant’s testimony is reliable, and that court reasonably concluded that independent evidence corroborated specific details of V’s testimony, there was no evidence establishing that those details were publicly
available or that V had access to them while he was incarcerated, and
the circumstances under which V initially provided information about the
defendant to the police supported a finding of reliability.
Argued May 1, 2024—officially released August 26, 2025
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of New London and tried to the jury
before S. Murphy, J.; verdict and judgment of guilty,
from which the defendant appealed to this court. Affirmed.
Pamela S. Nagy, supervisory assistant public defender,
for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom were Christa L. Baker, senior assistant state’s
attorney, and, on the brief, Paul J. Narducci, state’s
attorney, and Marissa Goldberg, assistant state’s attorney, for the appellee (state).
Opinion
DANNEHY, J. The defendant, Jean Jacques, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of murder in violation of General
Statutes § 53a-54a (a). On appeal, the defendant claims
that the trial court (1) violated his state constitutional
right to a probable cause hearing by denying his request
for a second probable cause hearing after this court
reversed his previous conviction and remanded the case
for a new trial in State v. Jacques, 332 Conn. 271, 294,
210 A.3d 533 (2019), (2) violated his confrontation
clause rights under the sixth amendment to the United
States constitution, as well as abused its discretion,
by admitting Tywan Jenkins’ written statement to the
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State v. Jacques
police as a prior inconsistent statement under State v.
Whelan, 200 Conn. 743,
513 A.2d 86, cert. denied,
479
U.S. 994,
107 S. Ct. 597,
93 L. Ed. 2d 598 (1986), and
(3) abused its discretion in finding that the state had
made a prima facie showing that the testimony of Danny
Vazquez, a jailhouse informant, was reliable and admissible under General Statutes § 54-86p. We affirm the
judgment of conviction.
I
On the evening of June 14, 2015, Casey Chadwick
and her boyfriend, Jean Joseph, were at their apartment
in Norwich. At approximately 9 or 10 p.m., Joseph left
the apartment and went to the home of Johane Jean
Baptiste, the mother of Joseph’s son, where he spent the
night.1 Around 11 p.m. that evening, Chadwick texted
Joseph to tell him that the defendant was at their apartment. The defendant knew Chadwick and Joseph
because he occasionally sold marijuana to them, and
Joseph would also sometimes sell marijuana to the
defendant.2 Joseph responded to Chadwick and told
her to ask the defendant to leave. Joseph also called
the defendant and asked that he leave the apartment.
The last outgoing message from Chadwick’s cell phone
was sent on the morning of June 15, 2015, at 12:20 a.m.
Later that morning, Joseph woke up, brought his son
to day care, and attended a doctor’s appointment. He
also called and texted Chadwick multiple times to let
her know when he would be back at the apartment and
1
Joseph would occasionally spend the night at Baptiste’s home so he
could spend time with his son. Although Joseph did not intend to spend
the night at Baptiste’s that evening, he fell asleep on the couch with his son
during his visit. Joseph remained there until the next morning, at which
time he brought his son to day care and attended a doctor’s appointment.
2
Joseph indicated that he met the defendant through Chadwick. Joseph
testified that Chadwick was friends with the defendant and that ‘‘he would
stop by the house sometimes and just joke around, you know, and sit for
like a good half hour, talk with us, and then just leave.’’
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State v. Jacques
to apologize that he did not make it home the previous
night. Chadwick did not pick up his calls or answer
his text messages. Joseph returned to the apartment
immediately after his doctor’s appointment and found
the apartment in disarray. Joseph later described the
apartment as looking like someone had ‘‘ransacked’’ it.
Chadwick was not present, and the marijuana that she
and Joseph had purchased the day before,3 as well as
some narcotics that Joseph had stored in the kitchen,
was missing.
Joseph began to panic when he could not find Chadwick. Fearing that their apartment had been raided by
the police, and Chadwick arrested, Joseph called the
police department and then the courthouse. Joseph
learned nothing of Chadwick’s whereabouts from these
calls. Joseph also called a local bail bondsman to try
to figure out what was going on, contacted Chadwick’s
friend to see if she had heard from Chadwick, and went
to a neighbor’s house to see if he had seen or heard
anything. Unable to locate Chadwick or get in contact
with her, Joseph returned to the apartment. Upon a
further search of the apartment, Joseph discovered
Chadwick’s body inside of a closet, bloody and lifeless.
Joseph called 911 to report what he had found, and
the police and medical personnel were dispatched to
the apartment.
Police officers responding to the call observed Chadwick’s body in a seated, slumped over position in the
closet with large lacerations to her neck area. A police
officer at the scene testified that he detected a strong
odor of cleaning supplies and observed a mop and
bucket in the kitchen. The police did not find Chadwick’s cell phone or any drugs during their search of
the apartment.
3
Joseph testified that he and Chadwick went to Mystic on June 14, 2015,
where Chadwick purchased approximately four ounces of marijuana from
her brother’s friend.
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State v. Jacques
An autopsy determined that Chadwick died as a result
of numerous sharp force injuries to her head and neck
that caused massive vascular damage and bleeding. She
suffered four penetrating stab wounds and eleven lateral incised wounds to the head and neck; incised
wounds to the right ring finger, left upper arm and left
wrist; and six blunt force trauma injuries to the torso.
Her right vertebral artery was damaged, and her right
jugular vein and right carotid artery were ‘‘cut all the
way through, severed.’’
The police learned from Joseph that Chadwick had
texted him the night before to report that the defendant
was in the apartment with her. Having reason to believe
that the defendant was an active drug dealer, the police
used a confidential informant to contact him on that
same day to arrange a controlled purchase of cocaine.4
When the arranged transaction was completed, the
police arrested the defendant on a drug charge. At the
time of his arrest, the police noticed blood on the defendant’s shoes and cuts on his hands. Maura DeJoseph,
the deputy chief medical examiner, examined the defendant’s hands pursuant to a search warrant and opined
that the cuts thereon appeared to be sharp force injuries
that may have occurred within one or two days of her
examination. DeJoseph opined that the cuts could have
been caused by the defendant’s hands slipping off the
handle of a knife and down over the blade.5
4
Police officers testified that the defendant was familiar to them because
a confidential informant had previously named the defendant as a drug
dealer in the downtown area of Norwich. An officer testified that they had
attempted a controlled purchase with the defendant just four days before
Chadwick’s murder, but the defendant said he did not have drugs at that time.
5
Mandi Edwards, a line cook at the Rustic Café in East Lyme, testified
that the defendant cut his right hand on a broken plate while working at
the restaurant on June 14, 2015, as a dishwasher. Merzilas Braboy, another
restaurant employee who was working at the time, testified that the defendant ‘‘had broken a glass and cut his hand open.’’ DeJoseph acknowledged
that the cuts on the defendant’s hands also could have been caused by a
broken plate.
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State v. Jacques
State police detectives searched the defendant’s
apartment pursuant to a valid search warrant. They
discovered, among other things, a first aid kit on top
of an ironing board and a white, rock like substance
that appeared to be crack cocaine.6 The police later
obtained the defendant’s pants from the car of a friend
who had driven him to a laundromat early in the morning on June 15, 2015. The pants recovered by the police
had blood stains on them.
Subsequent forensic testing indicated that the blood
on the defendant’s shoes and pants was consistent with
Chadwick’s DNA profile. Forensic testing also indicated
that blood found on Chadwick’s living room floor was
consistent with the defendant’s DNA profile. Blood
found on Chadwick’s kitchen wall came from a blood
mixture that was consistent with her and the defendant’s DNA profiles. The testing eliminated Joseph as
a contributor to the blood found on the defendant’s
shoes and in Chadwick’s apartment.
The state subsequently charged the defendant with
one count of murder in violation of § 53a-54a (a). The
defendant was first tried in 2016, and the jury found
him guilty of murder. See State v. Jacques, supra,332
Conn. 277. This court reversed that judgment of conviction and remanded the case for a new trial, concluding
that the trial court improperly denied the defendant’s
motion to suppress evidence that the police had
obtained during a warrantless search of the defendant’s
apartment. Id., 293–94.
6
After receiving a tip from a confidential informant, the police later conducted a second search of the defendant’s apartment, this time without a
warrant. State v. Jacques, supra,332 Conn. 275. Relying on the informant’s
statements, the officers located a hole in the wall of the defendant’s bathroom, where they found Chadwick’s cell phone and some drugs. In Jacques,
we held that the trial court improperly denied the defendant’s motion to
suppress the evidence seized from this illegal search, and, accordingly, we
remanded the case for a new trial. Id., 277–78, 294.
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State v. Jacques
On remand, the trial court denied three pretrial
motions that are relevant to the defendant’s claims on
appeal. First, the trial court denied the defendant’s
motion for a second probable cause hearing. Defense
counsel argued that a second probable cause hearing
was required because this court’s reversal of the first
judgment of conviction started the case ‘‘from scratch,’’
thereby effectively resetting the defendant’s right to
such a hearing. Second, the trial court denied the defendant’s motion to exclude the testimony of his former
cellmate, Jenkins, who previously testified that the
defendant admitted to him that he had killed Chadwick.
The defendant claimed, among other things, that Jenkins had suffered a stroke sometime after the first trial,
which rendered him unable to recall the alleged admissions made to him by the defendant. He argued that
Jenkins was unavailable as a witness and that Jenkins’
testimony did not fit within the hearsay exceptions set
forth in the Code of Evidence. Third, the trial court
denied the defendant’s motion to exclude the testimony
of Vazquez, another jailhouse informant. The defendant
claimed that Vazquez’ testimony was unreliable.
The defendant was tried again in 2022. The state
presented a wide array of evidence, including inculpatory statements that were attributed to the defendant
by Jenkins and Vazquez, which will be discussed in
greater detail in this opinion. The defendant was again
found guilty of murder, and the trial court sentenced
him to sixty years of incarceration. This appeal followed.7 Additional facts and procedural history will be
set forth as necessary.
II
We first consider the defendant’s claim that the trial
court violated his constitutional right to a probable
7
The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b) (3).
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State v. Jacques
cause hearing under article first, § 8, of the Connecticut
constitution, as amended by article seventeen of the
amendments, and General Statutes § 54-46a by denying
his request for a second probable cause hearing after
we reversed his previous conviction and remanded the
case for a new trial.
In January, 2016, prior to the first trial, the trial court
held a probable cause hearing pursuant to § 54-46a.
The court found probable cause to believe that the
defendant had murdered Chadwick based on ‘‘the
exhibits, the autopsy report, the DNA report, all the
photographs, and the totality of the testimony and the
evidence submitted during the hearing . . . .’’ The
defendant declined to make an offer of proof pursuant
to § 54-46a (b). The defendant also did not challenge
the trial court’s probable cause finding.
At a hearing before the second trial, defense counsel
requested a new probable cause hearing. Defense counsel argued that, although the defendant already had a
probable cause hearing before the first trial, he was
entitled to a second one because this court reversed his
prior conviction. By implication, he argued, the reversal
‘‘starts [the case] from scratch,’’ including the charges.
The prosecutor disagreed, arguing that the defendant
‘‘is not entitled to an additional [probable cause] hearing’’ because, ‘‘[w]hile the trial starts from scratch, the
case does not . . . .’’ The trial court agreed with the
prosecutor, finding that the defendant already received
a probable cause hearing. The trial court emphasized
that the reversal was relative to one issue and that this
court did not dismiss the defendant’s charges.
On appeal, the defendant claims that, because the
trial court relied on evidence at the probable cause
hearing that we later held was improperly admitted
at trial, § 54-46a required the trial court to grant the
defendant a new probable cause hearing. The defendant
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State v. Jacques
contends that the trial court’s refusal to hold a second
probable cause hearing warrants automatic reversal of
his conviction. In response, the state argues that (1)
the defendant’s first probable cause hearing satisfied
the statutory requirement, and (2) the defendant’s argument lacks merit because the evidence improperly
admitted at the first trial was nonetheless admissible
at the probable cause hearing because the defendant
was not entitled, under § 54-46a (b), to file a motion to
suppress. We agree with the state.
Because the defendant’s claim is premised on an
alleged infringement of his constitutional rights, our
review is plenary. See, e.g., State v. Douglas C., 345
Conn. 421, 435,
285 A.3d 1067 (2022).
Article first, § 8, of the Connecticut constitution, as
amended by article seventeen of the amendments, provides in relevant part that ‘‘[n]o person shall be held
to answer for any crime, punishable by death or life
imprisonment, unless upon probable cause shown at a
hearing in accordance with procedures prescribed by
law . . . .’’ In the 1983 legislative session, the legislature enacted § 54-46a ‘‘to institute the procedures necessary to implement article first, § 8, of the Connecticut
constitution, as amended by article seventeen of the
amendments . . . .’’ (Footnote omitted.) State v. Kane,
218 Conn. 151, 157,
588 A.2d 179 (1991).
A probable cause hearing held pursuant to § 54-46a
is not only a constitutional right in Connecticut but ‘‘a
jurisdictional prerequisite to continuing prosecution.’’
State v. Mitchell, 200 Conn. 323, 332,
512 A.2d 140 (1986).
Indeed, this provision ‘‘guarantees that no one will be
forced to stand trial for a serious crime unless a court
has first made a finding of probable cause at an open
hearing in which the accused is provided with a full
panoply of adversarial rights.’’ Id., 330. We have emphasized that an ‘‘invalid finding of probable cause at [a
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State v. Jacques
probable cause hearing] undermines the court’s power
to hear the case at trial.’’ Id., 332. ‘‘We did not, in Mitchell, define precisely what defects would render a finding
of probable cause ‘invalid,’ although implicit in our decision was an understanding that, at the very least, insufficiency of evidence presented at the probable cause
hearing will deprive the trial court of jurisdiction
. . . .’’ State v. McPhail, 213 Conn. 161, 170,
567 A.2d
812 (1989). In McPhail, we also concluded that a probable cause finding is invalid when ‘‘there has been a
failure to disclose exculpatory evidence at a criminal
defendant’s probable cause hearing,’’ but only if that
failure to disclose ‘‘did in fact taint the defendant’s
subsequent prosecution.’’ Id.; see also State v. White,
229 Conn. 125, 131, 136,
640 A.2d 572 (1994) (reversing
defendants’ convictions and remanding for new probable cause hearing because state failed to disclose exculpatory evidence that would have impeached testimony
of state’s only witness).
Although § 54-46a affords an accused with ‘‘a full
panoply of adversarial rights’’; State v. Mitchell, supra,200 Conn. 330; we have made clear that ‘‘[a] probable
cause hearing . . . was not designed to be a mini trial.’’
(Internal quotation marks omitted.) State v. Conn, 234
Conn. 97, 110,
662 A.2d 68 (1995); see also State v.
Rollinson, 203 Conn. 641, 649,
526 A.2d 1283 (1987) (‘‘a
hearing in probable cause is necessarily more limited
in scope than a full trial on the merits’’). That is precisely
why § 54-46a (b) forbids the use of motions to suppress
or for discovery in connection with such hearings. See
State v. Conn, supra, 110.
In State v. Kane, supra,218 Conn. 151, this court
addressed a constitutional challenge to § 54-46a in
which the defendant claimed that he was deprived of
due process of law because ‘‘the statute precluded a
motion to suppress at his probable cause hearing and
consequently deprived him of the opportunity to sup-
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State v. Jacques
press his allegedly involuntary statements to the police
at that stage of the proceedings.’’ Id., 155. We rejected
that argument on the basis that the defendant had an
adequate opportunity to later challenge the allegedly
illegally obtained evidence during the course of his trial.
Id., 159. Indeed, we said that, ‘‘as long as the defendant
was afforded the opportunity to challenge the admissibility of his statements at trial, the adjudicatory phase
of the proceeding against him, his right to due process
was preserved.’’ Id. We never suggested, however, that
evidence that is later successfully challenged and
excluded at trial would have any effect on the earlier
probable cause determination or would otherwise
require a new probable cause hearing. See id. (recognizing that ‘‘a damaging confession, which may later be
suppressed at the trial level on the ground that it was
involuntary and illegally obtained by the police, may be
admitted at a preliminary hearing’’ (internal quotation
marks omitted)).
The defendant does not contest that a probable cause
hearing was held prior to his first trial. Nor does he
challenge the trial court’s finding of probable cause.
Rather, the defendant essentially asks this court to hold
that, because we reversed the defendant’s first conviction on the ground that the trial court improperly had
admitted illegally obtained evidence, a second hearing
in probable cause is required. In making this argument,
the defendant implies that our holding in Jacques
imputed a jurisdictional defect to his first hearing in
probable cause that entitles him to a second one. We
find no legal support for the defendant’s contention.
First, the defendant’s argument confuses the scope
of our decision in Jacques and the nature of § 54-46a
hearings. In Jacques, we reversed the defendant’s conviction and remanded the case for a new trial in which
the illegally obtained evidence would be excluded; we
did not dismiss the charges. See State v. Jacques, supra,
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State v. Jacques
332 Conn. 294. Neither our state constitution nor § 54-
46a requires a second probable cause hearing when this
court reverses a criminal conviction.
Second, the fact that a court later determines that
illegally obtained evidence should have been excluded
at trial has no impact on the earlier probable cause
determination. See, e.g., State v. Kane, supra,218 Conn.
159. Accordingly, our holding in Jacques affected only
the admissibility of the evidence at retrial—it did not
impair or vacate the earlier probable cause determination.
Last, the defendant has not demonstrated that a jurisdictional defect exists that would render the first probable cause hearing invalid and entitle him to a second
one. Notably, we have found no case in which we have
required a new hearing in probable cause be held after
we remanded the case for a new trial based on a trial
court’s erroneous admission of improperly obtained evidence. See, e.g., State v. Oquendo, 223 Conn. 635, 660–
61, 613 A.2d 1300 (1992) (not requiring new probable
cause hearing when trial court improperly admitted
identification and evidence obtained from illegal seizure); State v. Duntz, 223 Conn. 207, 225,
613 A.2d 224
(1992) (not requiring new probable cause hearing when
trial court improperly admitted evidence obtained by
illegal search).
Because the defendant has already had a probable
cause hearing and has not otherwise demonstrated a
jurisdictional defect to the charges against him, we conclude that the trial court did not violate the defendant’s
constitutional rights by declining his request for a second hearing in probable cause.
III
We turn next to the defendant’s constitutional and
evidentiary claims that stem from the trial court’s
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State v. Jacques
admission of Jenkins’ written statement to the police
as a prior inconsistent statement under Whelan. The
defendant’s primary claim is that the trial court violated
his sixth amendment right to confrontation under the
United States constitution by admitting Jenkins’ statement to the police because Jenkins’ alleged medical
memory loss made him functionally unavailable at trial.8
Alternatively, the defendant claims that, regardless of
how this court decides the constitutional question, it
should hold that the trial court abused its discretion in
finding that Jenkins was available under Whelan because,
unlike the witness in Whelan, Jenkins (1) could not
explain the discrepancies between his prior statement
and his testimony, and (2) never acknowledged that he
signed the statement he made to the police. See State
v. Whelan, supra,200 Conn. 746. The defendant further
invites this court either (1) to adopt a prophylactic rule
under our state constitution that provides that a witness
is not considered available for cross-examination if, due
to a valid medical condition, he has no memory of the
incident and of making an out-of-court statement about
the incident, or (2) to exercise our supervisory authority
to modify Whelan and Connecticut Code of Evidence
§ 8-5 to preclude their application to situations in which
a witness has a medical condition that causes total
memory loss and is not trying to thwart justice or feign
memory loss.
On July 23, 2015, Jenkins made a written statement
to the police. The statement detailed inculpatory state-
8
The defendant specifically states that he is not claiming our state constitution provides a broader confrontation right than the federal constitution.
Rather, he argues that, if this court does not find a federal constitutional
violation, we should nevertheless adopt a prophylactic rule under our state
constitution in order to protect the right of confrontation thereunder, that
provides that a witness is not considered available for cross-examination
if, due to a valid medical condition, he has no memory of the incident and
of making an out-of-court statement about the incident. We address, but
ultimately reject, his request in part III C of this opinion.
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State v. Jacques
ments that the defendant allegedly made to Jenkins
while the two were cellmates at Corrigan Correctional
Center (Corrigan). Jenkins stated that the defendant
had asked him if he could help write a statement to
explain the defendant’s side of what happened to Chadwick. The defendant allegedly provided several versions
of his account to Jenkins, the earlier versions pinning
the death on a third party and the final version confessing that he had ‘‘snapped’’ and killed Chadwick, had
tried to clean up the blood using a mop and bleach, had
stolen Chadwick’s phone and drugs, and had planned
on selling the drugs to the contacts he would find in
Chadwick’s cell phone.
During both a January, 2016 probable cause hearing
and the defendant’s first murder trial, defense counsel
cross-examined Jenkins regarding his statement to the
police. The statement was not made a full exhibit at
the probable cause hearing; it was made a full exhibit
at the defendant’s first trial, during the prosecutor’s
redirect examination of Jenkins, as a prior consistent
statement. During both the probable cause hearing and
the defendant’s first trial, Jenkins testified that the
defendant had confessed to killing Chadwick and that
Jenkins later provided a statement to the police detailing the defendant’s confession.
After the defendant’s first trial and before testifying
at the second trial, Jenkins suffered a stroke. Defense
counsel moved to suppress Jenkins’ testimony prior to
the commencement of the second trial on the basis of
Jenkins’ memory loss due to the stroke, claiming that,
‘‘[d]ue to the fact that . . . Jenkins had a stroke, the
change in circumstances, he is an unavailable witness
and anything to replace him would be prejudicial.’’ The
trial court considered the issue and determined that
questions about the nature and scope of the testimony
would be addressed as the evidence came in.
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When the prosecutor called Jenkins as a witness,
defense counsel objected based on Jenkins’ memory
loss. The court proposed that the witness take the stand
and that the court would ‘‘see where the testimony
goes,’’ ‘‘address any objections as soon as they’re raised’’
and, if necessary, ‘‘take argument outside of the presence of the jury . . . .’’ Defense counsel agreed with
the procedure. Jenkins walked into the courtroom,
raised his right hand, and took an oath to tell the truth.
On direct examination, Jenkins testified that he had
received a subpoena from the state’s attorney’s office
to testify and did not want to be in court. Jenkins
recalled being incarcerated and being told that he had
been convicted of a crime. Jenkins testified that he did
not recall giving a statement to the police regarding
information concerning Chadwick’s murder. He acknowledged that he had suffered a stroke that caused memory
loss and that the stroke occurred two or three years
earlier. The prosecutor then offered Jenkins’ 2015 statement to the police as a prior inconsistent statement
under Whelan and § 8-5 of the Connecticut Code of
Evidence.
Defense counsel objected to the admission of Jenkins’ 2015 police statement, and the court heard arguments outside the presence of the jury. Defense counsel
argued that admitting Jenkins’ testimony would violate
the defendant’s sixth amendment right to confrontation
under Crawford v. Washington, 541 U.S. 36, 68,
124 S.
Ct. 1354,
158 L. Ed. 2d 177 (2004), describing Jenkins
as having brain damage that is more than memory loss.
Counsel further argued that the defendant lacked an
opportunity to cross-examine Jenkins at the time Jenkins gave his statement to the police. In response, the
prosecutor contended that, despite any memory loss,
Jenkins was available because he was physically present and subject to cross-examination. The prosecutor
further argued that, regardless of whether the defendant
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was available, defense counsel already had an opportunity to cross-examine Jenkins at the probable cause
hearing and at the first trial. Therefore, the prosecutor
argued that admitting Jenkins’ statement to the police
did not violate the defendant’s right to confrontation.
Defense counsel requested that the court canvass
Jenkins to see if he understood the oath. The court
instructed defense counsel that he was free to voir dire
the witness. Counsel then asked Jenkins whether he
knew what the oath was, and Jenkins responded in the
affirmative. Counsel then asked Jenkins whether he
knew that he could get in trouble if he did not follow
the oath, to which Jenkins responded, ‘‘[y]es.’’ Defense
counsel asked no further questions and did not probe
the nature of the stroke or the extent of Jenkins’ memory loss. The court, relying on prior case law and the
responses from Jenkins, including that Jenkins understood the oath and understood that he could get in
trouble for not telling the truth, admitted the police
statement into evidence. The court noted that, what it
had seen was memory loss with respect to the statement
and being incarcerated with the defendant, but that
Jenkins was ‘‘adequately responding to the questions
posed . . . .’’ The court ruled that Jenkins was not
functionally unavailable.
During trial, defense counsel cross-examined Jenkins
regarding his recollection of his statement to the police.
Jenkins again affirmed that he had a stroke but understood that taking the oath required him to tell the truth.
When asked questions about his prior statement to the
police, Jenkins repeatedly answered, ‘‘I don’t recall.’’
He testified that he could not remember meeting the
defendant, being cellmates with the defendant, hearing
the defendant’s alleged confession, or making a statement to the police about the defendant’s alleged confession. But Jenkins remembered other details of his life.
Jenkins said that, from what he understood, he had
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been in jail fourteen or fifteen times for minor offenses
and agreed that jail was not pleasant. Defense counsel
gave Jenkins a copy of the statement, and Jenkins said
that he could read and understand it. When counsel
asked Jenkins if he was okay to turn to page two by
himself, Jenkins said, ‘‘[y]eah . . . I’m not crazy. You
talking to me like I’m crazy. . . . I forget a lot. . . .
But I do understand.’’ Jenkins read a portion of the
statement and agreed that it said he was incarcerated.
Jenkins then acknowledged that he had been incarcerated fourteen or fifteen times. When asked about whether
he was incarcerated at the time of the statement, Jenkins said that he did not recall but all that he had been
told was that he ‘‘was called a jailhouse snitch’’ and
that he could not ‘‘see [his] grandchildren because it’s
dangerous.’’ When asked if people would be upset if he
made up information about people in prison to help
himself, Jenkins said that he did not recall.
After the defendant was convicted, he filed a motion
for a new trial and raised, among other issues, that
the admission of Jenkins’ 2015 police statement into
evidence violated his sixth amendment right to confrontation. The trial court denied the motion and, in addressing
the confrontation clause issue, specifically noted that
it had the opportunity to observe Jenkins on the stand
as well as his ability to testify. The court concluded
that it stood by its findings, its reasoning, and the rulings
on the record and that the admissibility of Jenkins’
statement was not in violation of the defendant’s constitutional rights under Crawford or in violation of Whelan.
A
The defendant claims that the trial court violated
his sixth amendment right to confrontation under the
United States constitution because Jenkins’ memory
loss stemming from his stroke rendered him functionally unavailable and made it impossible to confront
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Jenkins about his 2015 statement to the police. He
acknowledges that, in United States v. Owens, 484 U.S.
554,
108 S. Ct. 838,
98 L. Ed. 2d 951 (1988), the United
States Supreme Court held that a defendant’s right to
confrontation is not violated when an out-of-court identification by a witness is introduced into evidence and
that witness has no memory at trial of the basis for the
identification. See id., 559–60. He argues, however, that
Owens does not control here because there is a significant difference between the facts of Owens and the
facts of the present case, namely, that the witness in
Owens could testify about the events leading up to the
attack in that case; see id., 556; whereas Jenkins could
not remember anything about the contents of his statement or that he ever gave a statement to the police.
The defendant also argues that the facts of the present
case are distinguishable from the facts of other cases
in which this court rejected a defendant’s claim that a
witness was functionally unavailable for confrontation
clause purposes. See State v. Cameron M., 307 Conn.
504, 520–21,
55 A.3d 272 (2012) (overruled on other
grounds by State v. Elson, 311 Conn. 726,
91 A.3d 862
(2014)), cert. denied, 569 U.S. 1005,
133 S. Ct. 2744,
186
L. Ed. 2d 194 (2013); State v. Simpson,
286 Conn. 634,
654,
945 A.2d 449 (2008); State v. Pierre,
277 Conn. 42,
84–85, 890 A.2d 474, cert. denied,
547 U.S. 1197,
126 S.
Ct. 2873,
165 L. Ed. 2d 904 (2006). He argues that the
relevant federal and state cases that have permitted the
introduction of hearsay statements have addressed only
situations in which a witness remembers either making
a police statement or the events that gave rise to the
statement.
The state contends that, although the defendant
attempts to distinguish the facts of the present case
from other cases in which courts have determined that a
witness was available for purposes of the confrontation
clause, the defendant ignores the fact that the sixth
amendment guarantees only an opportunity to probe
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and expose infirmities through cross-examination; it
does not guarantee that cross-examination is effective
in whatever way, and to whatever extent, the defense
might wish. Because Jenkins took the witness stand,
took an oath, and willingly answered all the questions
put to him on cross-examination, the state contends
that he was available for confrontation clause purposes.
For the reasons discussed herein, we conclude that
Jenkins was available for cross-examination and that
the defendant’s confrontation clause claim fails.
Although we generally ‘‘review the trial court’s decision to admit evidence, if premised on a correct view
of the law . . . for an abuse of discretion’’; (internal
quotation marks omitted) State v. Beavers, 290 Conn.
386, 396,
963 A.2d 956 (2009); we have explained that
‘‘the abuse of discretion standard is at odds with the
axiomatic principle that question[s] of constitutional
law . . . [are] subject to plenary review.’’ (Internal
quotation marks omitted.) State v. Lebrick, 334 Conn.
492, 505,
223 A.3d 333 (2020). In Lebrick, we concluded
that the question of availability under the sixth amendment confrontation clause is a mixed question of law
and fact subject to plenary review. Id. Accordingly, the
trial court’s subordinate factual findings regarding the
availability of a witness will not be disturbed unless
they are clearly erroneous and the trial court’s ultimate
legal conclusion that a witness is constitutionally available, in light of the facts found, will be reviewed de
novo. Id., 506.
The confrontation clause of the sixth amendment of
the United States constitution affords ‘‘the accused’’ in
‘‘all criminal prosecutions’’ a right ‘‘to be confronted
with the witnesses against him . . . .’’ U.S. Const.,
amend. VI.9 In Crawford v. Washington, supra,541 U.S.
9
The sixth amendment right to confrontation is applicable to the states
through the due process clause of the fourteenth amendment to the United
States constitution. E.g., Pointer v. Texas, 380 U.S. 400, 403, 406,
85 S. Ct.
1065,
13 L. Ed. 2d 923 (1965).
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36, the United States Supreme Court altered the
approach to the confrontation clause that it had previously followed. See id., 68–69. After considering the
historical underpinnings of the confrontation clause,
the court overruled its decision in Ohio v. Roberts, 448
U.S. 56,
100 S. Ct. 2531,
65 L. Ed. 2d 597 (1980), which
had interpreted the confrontation clause to permit the
admission of out-of-court statements by an unavailable
witness so long as the statements ‘‘[bore] adequate indicia of reliability’’; (internal quotation marks omitted)
id., 66; and adopted a rule that hearsay labeled as ‘‘[t]estimonial’’ shall not be admitted into evidence unless
the witness appears at trial for cross-examination or,
if the witness is unavailable, the defendant had a prior
opportunity for cross-examination.10 Crawford v. Wash-
ington, supra, 59, 68; see also State v. Rivera,
268 Conn.
351, 362,
844 A.2d 191 (2004) (explaining that Crawford
overruled reliability approach set forth in Roberts for
testimonial statements). Although Crawford left open
many questions about how to define a testimonial statement, the decision did nothing to alter the court’s prior
jurisprudence on unavailability. See Crawford v. Wash-
ington, supra, 68. Indeed, nothing in the decision purported to overrule or call into question the pre-Crawford cases in which the court addressed memory
loss in the confrontation clause context. It is those
pre-Crawford cases that are pertinent to the question
presented in the present case.
In California v. Green, 399 U.S. 149,
90 S. Ct. 1930,
26 L. Ed. 2d 489 (1970), a sixteen year old declarant
reported, in both a police interview and at a preliminary
hearing, that the defendant was his marijuana supplier.
Id., 151. At trial, however, the declarant claimed that
he could not remember how he received the marijuana
because he had taken LSD (lysergic acid diethylamide)
10
The parties agree that Jenkins’ 2015 statement to the police was testimonial.
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on the day it was delivered. Id., 152. The prosecutor
proceeded to introduce the declarant’s statements from
the preliminary hearing and the police interview. Id.
The declarant admitted to making the prior statements
and insisted that he had been telling the truth as he
then believed it, but he also testified that he was telling
the truth on the stand in claiming his inability to remember the actual events. Id.
The United States Supreme Court explained that ‘‘the
[c]onfrontation [c]lause is not violated by admitting a
declarant’s out-of-court statements, as long as the
declarant is testifying as a witness and subject to full
and effective cross-examination.’’ Id., 158. The court
further explained that the confrontation clause ‘‘does
not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise
explain the inconsistency between his prior and his
present version[s] of the events in question, thus opening himself to full cross-examination at trial as to both
stories.’’ Id., 164. The declarant’s preliminary hearing
testimony was deemed admissible, but the court declined
to address whether the declarant’s purported loss of
memory so affected the defendant’s right to cross-examination as to ‘‘make a critical difference’’ in the application of the confrontation clause because that issue was
not yet ripe. Id., 168–69.
In a concurring opinion, Justice John Marshall Harlan
II opined that ‘‘[t]he fact that the witness, though physically available, cannot recall either the underlying
events that are the subject of an extra-judicial statement
or previous testimony or recollect the circumstances
under which the statement was given, does not have
[s]ixth [a]mendment consequence. The prosecution has
no less fulfilled its obligation simply because a witness
has a lapse of memory. The witness is, in my view,
available. To the extent that the witness is, in a practical
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sense, unavailable for cross-examination on the relevant facts . . . I think confrontation is nonetheless satisfied.’’ Id., 188–89 (Harlan, J., concurring).
Fifteen years after Green, the United States Supreme
Court had the opportunity to consider whether admitting opinion testimony from a state’s expert—‘‘who was
unable to recall the basis for his opinion’’—violated the
confrontation clause. Delaware v. Fensterer, 474 U.S.
15, 16,
106 S. Ct. 292,
88 L. Ed. 2d 15 (1985). In Fensterer,
the defendant was convicted of murdering his fiancée.
Id. To establish that a cat leash was the murder weapon,
the state sought to prove that two hairs found on the
leash were similar to the fiancée’s hair, and that one
of those hairs had been forcibly removed. Id. To prove
that the hairs were forcibly removed, the state relied
on the testimony of an agent with the Federal Bureau
of Investigation (FBI). Id. The agent testified that one
of the hairs was forcibly removed and explained that
‘‘there are three methods of determining that a hair has
forcibly been removed . . . .’’ Id., 16–17. The agent,
however, went on to say, ‘‘I have reviewed my notes,
and I have no specific knowledge as to the particular
way that I determined the hair was forcibly removed
other than the fact that one of those hairs was forcibly
removed.’’ (Internal quotation marks omitted.) Id., 17.
On cross-examination, the agent again was unable to
remember which method he had employed to determine
that the hair was forcibly removed. Id. The Delaware
Supreme Court concluded that there was a confrontation clause violation because ‘‘[e]ffective cross-examination and discrediting of [the special agent’s] opinion
at a minimum required that he commit himself to the
basis of his opinion.’’ (Internal quotation marks omitted.) Id., 18.
The United States Supreme Court disagreed. It held
that, in general, the confrontation clause ‘‘guarantees an
opportunity for effective cross-examination, not cross-
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State v. Jacques
examination that is effective in whatever way, and to
whatever extent, the defense might wish.’’ (Emphasis in
original.) Id., 20. It explained that ‘‘[t]he [c]onfrontation
[c]lause includes no guarantee that every witness called
by the prosecution will refrain from giving testimony
that is marred by forgetfulness, confusion, or evasion.
To the contrary, the [c]onfrontation [c]lause is generally
satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through
cross-examination, thereby calling to the attention of
the [fact finder] the reasons for giving scant weight to
the witness’ testimony.’’ Id., 21–22. The court noted
that, in that case, defense counsel’s cross-examination
of the special agent ‘‘demonstrated to the jury that [he]
could not even recall the theory on which his opinion
was based’’ and that ‘‘the defense was able to suggest
to the jury that [the special agent] had relied on a theory
[that] the defense expert considered baseless.’’ Id., 20.
The court nevertheless indicated that it did not need
to decide in that case ‘‘whether there are circumstances
in which a witness’ lapse of memory may so frustrate
any opportunity for cross-examination that admission
of the witness’ direct testimony violates the [c]onfrontation [c]lause.’’ Id.
Then came the United States Supreme Court’s decision in Owens, which required it to squarely consider
whether the confrontation clause barred testimony
regarding a previous, out-of-court identification ‘‘when
the identifying witness [was] unable, because of memory loss, to explain the basis for the identification.’’
United States v. Owens, supra, 484 U.S. 555–56. There,
a correctional counselor at a federal prison was beaten
with a metal pipe, which resulted in injuries that
severely impaired his memory. Id., 556. When the counselor first spoke with the FBI, he was unable to remember his attacker’s name.
Id. A few weeks later, in a
second interview with the FBI, he was able to describe
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State v. Jacques
the attack, name his attacker, and identify his attacker
from an array of photographs. Id. At trial, the counselor
recounted his activities just prior to the attack,
described feeling blows to his head, and recalled seeing
blood on the floor. Id. He also clearly remembered
identifying the defendant as his assailant during the
second interview. Id. On cross-examination, however,
the counselor acknowledged that ‘‘he could not remember seeing his assailant’’ at the time of the assault. Id.
And, ‘‘although there was evidence that he had received
numerous visitors in the hospital,’’ he could remember
visits from only one of them; he ‘‘could not remember
whether any of these visitors had suggested that [the
defendant] was the assailant.’’ Id. Although defense counsel ‘‘sought to refresh [the counselor’s] recollection with
hospital records, including one indicating that [he] had
attributed the assault to someone other than [the defendant],’’ these attempts to refresh the counselor’s recollection were unsuccessful. Id.
The United States Supreme Court concluded that the
confrontation clause was not violated by the counsel- or’s memory loss. Id., 559–60. It began by stating that
it ‘‘has never held that a [c]onfrontation [c]lause violation’’ could be founded on the basis of a witness’ loss
of memory. Id., 557. After reviewing its decisions in
Green and Fensterer, the court indicated that it ‘‘agree[d]
with the answer suggested 18 years ago by Justice Harlan’’ in Green. Id., 559. The confrontation clause, the
court stated, ‘‘guarantees only an opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the
defense might wish.’’ (Emphasis in original; internal
quotation marks omitted.) Id. The opportunity for cross-examination, the court reasoned, ‘‘is not denied when
a witness testifies as to his current belief but is unable
to recollect the reason for that belief. It is sufficient
that the defendant has the opportunity to bring out
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State v. Jacques
such matters as the witness’ bias, his lack of care and
attentiveness, his poor eyesight, and even (what is often
a prime objective of cross-examination . . . ) the very
fact that he has a bad memory.’’ (Citation omitted.) Id.
The court recognized that ‘‘[t]he weapons available to
impugn the witness’ statement when memory loss is
asserted will of course not always achieve success, but
successful cross-examination is not the constitutional
guarantee.’’ Id., 560. The court explained, however, that,
if a witness asserts memory loss, a defendant may still
have ‘‘realistic weapons’’ to attack a witness’ statement.
Id. The court observed that defense counsel in that very
case emphasized during summation the counselor’s
memory loss and ‘‘argued that [the counselor’s] identification of [the defendant] was the result of the suggestions of people who visited him in the hospital.’’ Id. The
court concluded that, when the ‘‘declarant is present
at trial and subject to unrestricted cross-examination,’’
there was no need to evaluate the reliability of the prior
out-of-court statement. Id.
Although Green, Fensterer, and Owens predated the
United States Supreme Court’s decision in Crawford,
nothing in Crawford, as we have explained, explicitly
overruled or called into question the vitality of these
cases. See State v. Pierre, supra,277 Conn. 82 (acknowledging that ‘‘Crawford neither overruled nor called into
question its . . . earlier decisions that addressed and
resolved [the memory loss] issue’’ (internal quotation
marks omitted)). The defendant, however, points to
footnote 9 in Crawford, which provides in relevant part
that the confrontation clause ‘‘does not bar admission
of a statement so long as the declarant is present at
trial to defend or explain it,’’ suggesting that a witness
who has memory loss cannot ‘‘defend or explain’’ his
statement and is therefore unavailable for confrontation
clause purposes. Crawford v. Washington, supra,541
U.S. 60 n.9. By focusing on this sentence in isolation,
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State v. Jacques
the defendant fails to consider the statement in its full
context. Immediately preceding that sentence is the
unambiguous statement from the court that, ‘‘when the
declarant appears for cross-examination at trial, the
[c]onfrontation [c]lause places no constraints at all on
the use of his prior testimonial statements.’’ Id., citing
California v. Green, supra,399 U.S. 162. Since Crawford, the court has reiterated that a witness’ ‘‘testimony
against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable,
the defendant had a prior opportunity for cross-examination.’’ Melendez-Diaz v. Massachusetts, 557 U.S. 305,
309,
129 S. Ct. 2527,
174 L. Ed. 2d 314 (2009). Although
we recognize that the United States Supreme Court
has not addressed what constitutes ‘‘availability’’ postCrawford, there is nothing in Crawford that indicates
that the court intended to overrule or alter its prior
memory loss jurisprudence.
Since Crawford, virtually every court that has been
confronted with a memory loss claim has followed the
Owens approach and concluded that a declarant’s
appearance and subjection to cross-examination at trial
is generally all that is necessary to pass muster under
the confrontation clause. See, e.g., United States v.
Shaffers, 22 F.4th 655, 661–62 (7th Cir. 2022) (rejecting
defendant’s argument that Crawford changed Owens’
approach to cases of claimed memory loss and concluding ‘‘that the [c]onfrontation [c]lause is satisfied when
the witness must look the accused in the eye in court;
shortcomings in the declarant’s memory may be made
known to the jury’’ (internal quotation marks omitted));
United States v. Bliss, 188 Fed. Appx. 13, 16 (2d Cir.)
(‘‘because [the declarant] was available for cross-examination at trial, there was no [c]onfrontation [c]lause
violation, notwithstanding [the defendant’s] claim of
loss of memory’’), cert. denied sub nom. Lott v. United
States, 549 U.S. 1026,
127 S. Ct. 570,
166 L. Ed. 2d 421
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State v. Jacques
(2006); Mercer v. United States, 864 A.2d 110, 113, 114
n.4 (D.C. 2004) (holding that ‘‘the requirements of Crawford were met’’ when witness was ‘‘unable to recall in
any meaningful way the events of the day of the shooting, her testimony before the grand jury, or her testimony in the first trial’’), cert. denied, 543 U.S. 1188,
125
S. Ct. 1425,
161 L. Ed. 2d 191 (2005); see also State v.
Holliday, 745 N.W.2d 556, 566–67 (Minn.) (citing cases),
cert. denied, 555 U.S. 856,
129 S. Ct. 124,
172 L. Ed. 2d
95 (2008).11 Indeed, this court said as much in State v.
Pierre, supra,277 Conn. 79. In Pierre, we addressed
the issue of whether the admission of a witness’ prior
inconsistent written statement to the police violated
the defendant’s right to confrontation when the witness
claimed at trial that he could not remember ever having
heard any of the information recounted in the written
statement, that he never had substantively reviewed the
statement, and that he had signed the statement only
to stop the police from harassing him. Id., 78–79. In
other words, we had to determine whether a witness
who testifies at trial and is subject to cross-examination
is nevertheless ‘‘functionally unavailable’’ for purposes
of the confrontation clause due to the witness’ loss of
memory. (Internal quotation marks omitted.) Id., 80.
In concluding that there was no confrontation clause
violation, we relied on our previous Whelan jurisprudence and sister state decisions that had interpreted
Crawford’s availability element; id., 81–84; holding that
‘‘a witness’ claimed inability to remember earlier state-
11
It appears that only one state supreme court, in interpreting its own
constitution, has found that total memory loss of a witness can run afoul
of its state constitution’s confrontation clause. See Goforth v. State, 70 So.
3d 174, 183, 187 (Miss. 2011) (‘‘[because] [a]rticle 3, [§] 26 of the Mississippi
[c]onstitution provides defendants a constitutional right to confront the
witnesses against them, we base our opinion on its provisions’’ and ‘‘find
that, under the Mississippi [c]onstitution, [the defendant] did not have a
constitutionally adequate opportunity to cross-examine [the witness] at trial
or beforehand’’).
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State v. Jacques
ments or the events surrounding those statements does
not implicate the requirements of the confrontation
clause under Crawford, so long as the witness appears
at trial, takes an oath to testify truthfully, and answers
the questions put to him or her during cross-examination.’’ Id., 86. We agreed with the jurisdictions interpreting ‘‘ ‘availability for cross-examination’ under Crawford
as needing to be synthesized with the United States
Supreme Court’s holdings in [Owens and Fensterer]
. . . .’’ (Citations omitted.) Id. We acknowledged that,
‘‘although ‘availability’ was not defined in Crawford,
Owens and Fensterer [nevertheless] make clear that
the right to cross-examination does not imply a right
to cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.’’ Id.
We therefore concluded that, because the witness ‘‘took
the stand at trial, agreed to testify truthfully, was subject
to cross-examination by the defendant, and answered
all questions posed by defense counsel’’; id., 84; there
was no confrontation clause violation. Id., 86. We further explained that there was no confrontation clause
violation because of the substance of the witness’ testimony. See id., 85–86. In particular, we emphasized that
the witness’ testimony regarding details he could remember about his statement to the police ‘‘provided the
defendant with the opportunity to show [the witness’]
bias, interest, potential motives and demeanor as a witness.’’ Id., 86.
Here, the trial court determined that Jenkins was
available for cross-examination. Like the witness in
Pierre, Jenkins appeared at trial, took an oath to testify
truthfully, testified that he understood the oath and the
implications of not telling the truth, and answered the
questions put to him during cross-examination. See id.
We need not decide, however, whether those facts
alone, in the context of the facts of the present case,
would be sufficient to establish availability for confron-
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tation clause purposes, or whether the extent of Jenkins’ memory loss is even relevant to that analysis,
because the defendant also had the means to impugn
the foundation of Jenkins’ belief expressed in his prior
statement.
Defense counsel, for example, could have cross-examined Jenkins regarding his prior testimony at the
probable cause hearing and the first trial, and could
have sought to admit any portions of that testimony
that were inconsistent with Jenkins’ asserted lack of
memory at the second trial. See Conn. Code Evid. § 8-
5 (1); see also part III B of this opinion. With that prior
testimony, defense counsel could have established,
among other things, that (1) Jenkins had difficulty communicating with the defendant due to the defendant’s
thick Haitian accent and his nonlinear thinking, (2) Jenkins lied to the defendant about the existence of forensic evidence implicating the defendant in the crime
‘‘[t]o see if [the defendant] had really [done] it,’’ (3)
the defendant told Jenkins ‘‘seven or eight’’ different
versions of what happened, but the written statement
provided ‘‘[t]he best one,’’ and (4) the written statement
did not include all of the information that Jenkins had
conveyed to the police about his conversations with
the defendant.
Defense counsel also could have highlighted during
cross-examination that Jenkins not only did not want
to testify at the trial but also did not like being labeled
a jailhouse snitch, which calls into question the extent
of his memory loss and his motive for testifying; emphasized that, based on Jenkins’ limited memory and because
he did not personally write the statement, Jenkins could
not say at the time of the second trial whether the police
had completely fabricated the information; pointed to
key details Jenkins previously testified to knowing but
had left out of his statement; and argued that the police
statement was as unreliable as Jenkins’ memory argua-
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bly was. Moreover, the trial court instructed the jury
on the heightened scrutiny required when evaluating
jailhouse informant testimony—an additional layer that
was absent in Pierre. Simply put, defense counsel was
not without tools to probe Jenkins’ lack of memory or
to try to cast doubt on his earlier statement to the
police. See, e.g., State v. Pierre, supra,277 Conn. 81
(‘‘defense counsel was not without resources’’ in crossexamining witness (internal quotation marks omitted));
see also United States v. Owens, supra,484 U.S. 560
(explaining that defendants may have ‘‘realistic weapons’’ to attack witness’ statement when memory loss
is asserted).
On this factual record, we conclude that the trial
court correctly determined that Jenkins was available
for confrontation clause purposes because (1) Jenkins
appeared at trial, took an oath to testify truthfully, and
answered all the questions put to him during cross-examination, and (2) defense counsel had tools available to cross-examine Jenkins, namely, the opportunity
to ask Jenkins questions about his prior testimony
regarding his statement to the police. Like the United
States Supreme Court in Green, Fensterer, and Owens,
we do not need to address in the present case whether
there may be circumstances in which a witness, because
of the nature and extent of a medical condition and
its impact on memory, is unavailable for confrontation
clause purposes. Although trial courts should, when
requested, hold a pretrial evidentiary hearing to consider medical evidence that may establish that a valid
medical condition so frustrates the opportunity for
cross-examination that the witness is functionally
unavailable, this is not such a case.
B
The defendant next claims that, even if the admission
of Jenkins’ statement did not violate his sixth amend-
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ment rights, the trial court nevertheless abused its discretion in admitting Jenkins’ statement under Whelan
and § 8-5 of the Connecticut Code of Evidence. We
disagree.
It is well known that this court ‘‘review[s] the trial
court’s decision to admit evidence, if premised on a
correct view of the law . . . for an abuse of discretion.’’
(Internal quotation marks omitted.) State v. Smith, 289
Conn. 598, 617,
960 A.2d 993 (2008). ‘‘We will make
every reasonable presumption in favor of upholding the
trial court’s ruling . . . .’’ (Internal quotation marks
omitted.) State v. Qayyum, 344 Conn. 302, 315,
279 A.3d
172 (2022).
In State v. Whelan, supra,200 Conn. 743, we held
that the substantive use of a prior written inconsistent
statement is permitted, provided that the statement has
been ‘‘signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at
trial and is subject to cross-examination.’’ Id., 753. This
rule has been codified at § 8-5 of the Connecticut Code
of Evidence.12 It is well settled that ‘‘changes in position,’’ ‘‘denial[s] of recollection,’’ and ‘‘omissions’’ can
satisfy the inconsistency element of Whelan. (Emphasis
omitted; internal quotation marks omitted.) State v.
Simpson, supra,286 Conn. 649; see also State v.
Whelan,
supra, 748–49 n.4. For a prior inconsistent statement
to be admitted under Whelan and § 8-5, however, the
declarant must be available to testify at trial and be
subject to cross-examination. E.g., State v. Whelan,
supra, 750–53.
12
Section 8-5 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule, provided the
declarant is available for cross-examination at trial:
‘‘(1) Prior inconsistent statement. A prior inconsistent statement of a
witness, provided (A) the statement is in writing or otherwise recorded by
audiotape, videotape or some other equally reliable medium, (B) the writing
or recording is duly authenticated as that of the witness, and (C) the witness
has personal knowledge of the contents of the statement. . . .’’
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In part III A of this opinion, we concluded that the
trial court had correctly determined that Jenkins was
available for cross-examination at trial for purposes of
the confrontation clause. For the same reasons, we
conclude that Jenkins was also available for purposes of
Whelan and § 8-5 of the Connecticut Code of Evidence.13
The defendant nevertheless argues that two of the other
requirements of Whelan and § 8-5 were not satisfied.
Specifically, he argues that Jenkins (1) could not explain
the discrepancies between his prior statement and his
testimony, and (2) never acknowledged that he signed
the statement he made to the police. These arguments
are unavailing.14
First, although the defendant contends that Jenkins
could not explain the discrepancies between his prior
statement and his testimony, the defendant concedes
that Whelan plainly states that a denial of recollection
or a claim of memory loss can serve as the basis for a
finding of inconsistency. See id., 748 n.4. Therefore, the
13
We note that the defendant argues that Jenkins was unavailable under
both Crawford and Whelan. Although this could be construed as suggesting
that availability under Crawford and Whelan differs, the defendant did not
make this argument before the trial court and does not explain on appeal
how a defendant can be ‘‘available’’ for purposes of Crawford and the
confrontation clause but nevertheless be ‘‘unavailable’’ for purposes of
Whelan. As such, we need not decide whether there may ever be a circumstance involving medical memory loss in which the definition of ‘‘availability’’
for purposes of Whelan is not coterminous with the meaning of ‘‘availability’’
under Crawford.
14
On appeal, the defendant notes that he does not claim that the trial
court abused its discretion on the ground that Jenkins’ genuine lack of
memory was not inconsistent with his prior statement under Whelan because
he did not raise such a claim before the trial court. Nevertheless, we note
that we have expressly rejected any distinction between feigned and genuine
memory loss under Whelan. See, e.g., State v. Cameron M., supra, 307 Conn.
527 (rejecting proposition that ‘‘whether the Whelan rule should be limited
to feigned loss of memory, rather than the genuine loss of memory experienced by the victim . . . remains an open question’’). Although the defendant has asked us to invoke our supervisory authority to modify Whelan
and § 8-5 of the Connecticut Code of Evidence; see part III D of this opinion;
he has not asked that we overrule Cameron M.
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State v. Jacques
fact that Jenkins was not able to explain the discrepancies due to his memory loss did not preclude admission
of the statement under Whelan. Second, although counsel raised an objection to Jenkins’ availability under
Whelan and the confrontation clause, he represented to
the court that Detective Anthony Gomes of the Norwich
Police Department had typed up the statement, that
Gomes had given it to Jenkins, and that Jenkins had
signed it, effectively conceding those points. Because
all of the requirements of Whelan and § 8-5 of the Connecticut Code of Evidence were satisfied, we conclude
that the trial court did not abuse its discretion in admitting Jenkins’ statement.
C
In the alternative, the defendant asks that we adopt
a state constitutional prophylactic rule that provides
that a witness is not considered available for cross-examination if, due to a valid medical condition, he has
no memory of the incident or of making an out-of-court
statement about the incident. The defendant contends
that, because medical memory loss would prevent a
defendant from obtaining any meaningful information
from the witness during cross-examination, a jury could
not accurately determine the witness’ credibility. Thus,
the defendant argues that applying the prophylactic rule
in such situations would ‘‘prevent the significant risk
of a constitutional violation . . . .’’15 (Citation omitted;
15
The defendant does not argue that the confrontation clause in article
first, § 8, of our state constitution provides any greater protection than the
confrontation clause of the federal constitution. See State v. Lockhart, 298
Conn. 537, 555,
4 A.3d 1176 (2010) (‘‘[W]ith respect to the right to confrontation within article first, § 8, of our state constitution, its language is nearly
identical to the confrontation clause in the sixth amendment to the United
States constitution. The provisions have a shared genesis in the common
law.’’). Rather, the defendant is asking this court to craft a prophylactic rule
that arguably provides greater protection than what the state constitution
requires. The defendant and the state address this request under the six
factors that we set forth in State v. Geisler, 222 Conn. 672, 684–85,
610 A.2d
1225 (1992). The Geisler analysis, however, ‘‘applies to cases in which the
state constitution has no federal analogue, as well as those in which the
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State v. Jacques
internal quotation marks omitted.) State v. Purcell, 331
Conn. 318, 342,
203 A.3d 542 (2019).
‘‘We begin our analysis with a brief discussion of
the nature of constitutional prophylactic rules and the
distinction between such rules and ordinary case-bycase judicial review of constitutional claims. This court
has recognized that ‘courts have the duty not only to
craft remedies for actual constitutional violations, but
also to craft prophylactic constitutional rules to prevent
the significant risk of a constitutional violation.’ . . .
State v. Dickson, 322 Conn. 410, 426 n.11,
141 A.3d 810
(2016), cert. denied, 582 U.S. 922,
137 S. Ct. 2263,
198
L. Ed. 2d 713 (2017); see, e.g., C. Rogers, ‘Putting Meat
on Constitutional Bones: The Authority of State Courts
To Craft Constitutional Prophylactic Rules Under the
Federal Constitution,’ 98 B.U. L. Rev. 541, 545 (2018)
(former Chief Justice of Connecticut Supreme Court
explaining nature, scope, and purpose of court’s power
to adopt prophylactic rules). Prophylactic rules ‘are
[forward-looking] and [have the potential to] either sanction future government conduct that is not expressly
prohibited by the applicable constitutional provision or
require future government conduct that the constitutional provision does not expressly mandate . . . .’ C.
claim is that the state constitution provides greater protection than does
the federal constitution.’’ (Internal quotation marks omitted.) State v. Jose
A. B., 342 Conn. 489, 508,
270 A.3d 656 (2022). We have previously recognized
that it may not be necessary to consider the Geisler factors in deciding
whether to adopt a prophylactic rule because the analytical process in
deciding whether to adopt such a rule necessarily involves a policy centered
weighing process. See State v. Purcell, 331 Conn. 318, 343 n.16,
203 A.3d
542 (2019); see also State v. Haynes,
352 Conn. 236, 246 n.6,
336 A.3d 1139
(2025) (policy centered weighing process is embedded in Geisler analysis
as sixth factor). In the present case, we focus on the sixth Geisler factor
and ask whether a judicially created rule or an additional layer of prophylaxis, rather than a case-by-case analysis, is necessary to protect the constitutional right. We note, however, that the result, based on a consideration of
all of the Geisler factors, for the reasons articulated in part III A of this
opinion, would be the same.
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State v. Jacques
Rogers, supra, 547. Because constitutional prophylactic
rules have this potential to prohibit or to mandate what
the constitution does not, their adoption is justified
only when the risk of a constitutional violation is high,
i.e., when the constitutional protections are ‘not by their
terms readily applicable in the field’ . . . id., 553; or
when case-by-case analysis by the courts is inadequate
due to the lack of ‘judicially manageable standards.’ Id.,
554. Thus, ‘the authority . . . to create prophylactic
rules is not without limits. To the contrary, there is
general agreement that [courts] should use this authority cautiously and rules should be as narrowly tailored
as possible to accomplish their purpose.’ Id., 565.’’ State
v. Andres C., 349 Conn. 300, 328–29,
315 A.3d 1014,
cert. denied, U.S. , 145 S. Ct. 602,
220 L. Ed. 2d
236 (2024).
With this general background in mind, we turn to the
defendant’s claim that we should adopt a prophylactic
rule that witnesses who have medical memory loss are
unavailable if, due to that memory loss, they cannot
remember making the out-of-court statement or the
circumstances surrounding the statement. Although we
recognize that a witness’ memory loss can pose real
challenges and can conceivably result in a constitutional violation under certain circumstances, we are
not persuaded that the risks, as articulated by the defendant in his brief, warrant the adoption of a categorical
prophylactic rule for which the defendant advocates,
especially when it is not clear that such a rule would
accomplish what a case-by-case analysis could not.
First, we note that neither the United States Supreme
Court nor this court has ever drawn a distinction based
on the reason for the memory loss, as the defendant
does in the present case. Rather, both courts have suggested that memory loss, whether genuine or feigned,
medical or otherwise, is an issue of credibility and
weight for the jury. See, e.g., Bullcoming v. New Mexico,
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State v. Jacques
564 U.S. 647, 661–62 n.7,
131 S. Ct. 2705,
180 L. Ed. 2d
610 (2011) (suggesting that there is no confrontation
clause violation when analyst who cannot remember
performing particular test is placed under oath and is
subject to cross-examination by defense counsel); State
v. Pierre, supra,277 Conn. 85 (‘‘[d]efense counsel was
presented with, and used, plenty of ammunition to
attack [declarant’s] credibility and truthfulness on
cross-examination’’ (internal quotation marks omitted));
see also United States v. Keeter, 130 F.3d 297, 302 (7th
Cir. 1997) (explaining that confrontation clause does
not distinguish between genuine and feigned memory
loss and that confrontation clause is satisfied when
witness ‘‘look[s] the accused in the eye in court’’), cert.
denied sub nom. Ahrens v. United States, 523 U.S. 1034,
118 S. Ct. 1331, 140 L. Ed 2d 492 (1998); 30 C. Wright &
D. Blinka, Federal Practice and Procedure (Supp. 2025)
§ 6446, p. 24 (‘‘[w]hether the memory loss appears genuine (e.g., a head injury) or feigned (e.g., friends helping
friends), the issue is one of credibility that is left for
the jury’’).
Second, even if it is proper to single out memory loss
stemming from a medical condition from other types
of memory loss, it is not clear to us what the defendant
means by the phrase ‘‘valid medical condition’’ in advancing his proposed rule. Although memory loss stemming
from a stroke may fall within his proposed rule, would
the nature of the stroke not be relevant? Would memory
loss stemming from old age fall under the rule? What
if the witness claims that he has poor memory or a lack
of memory because he previously hit his head? The
questions that remain are numerous, and the line drawing required is difficult. The proposed rule neither provides clear guidance nor is it aimed at government
misconduct. See C. Rogers, supra, 98 B.U. L. Rev. 553–54
(‘‘[b]y providing clear guidelines for official conduct,
‘prophylactic rules build a fence around the [c]onstitu-
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State v. Jacques
tion’ ’’). We are therefore not confident that the rule for
which the defendant advocates is sufficiently tailored to
ameliorate the alleged risk of constitutional violations.
Rather than craft a rule that may be overinclusive or
underinclusive, we think the better approach is to allow
trial courts, on a case-by-case basis, to determine whether
a valid medical condition so frustrates the opportunity
for cross-examination that the witness is functionally
unavailable.
In short, although we are cognizant that memory loss
and forgetfulness can raise complex problems in the
courtroom, we are not persuaded that it is necessary
or appropriate at this time to adopt the defendant’s
proposed rule.
D
The defendant makes a final request. He asks that
we exercise our supervisory authority to modify Connecticut Code of Evidence § 8-5 to preclude its application to situations in which a witness has a medical
condition that causes total memory loss. The defendant
argues that, when a witness has medical memory loss
to the extent that he cannot remember making the out-of-court statement or the circumstances surrounding
the statement, there is no basis to determine that the
lack of memory constitutes an inconsistency under Connecticut Code of Evidence § 8-5.
The state argues that we should decline to exercise
our supervisory authority because the defendant’s proposed modification to the Code of Evidence is a matter
of substantive law rather than judicial procedure. The
state further argues that the rule is unnecessary because
trial judges are best situated to evaluate whether a prior
statement is inconsistent with contemporaneous testimony. Finally, the state argues that ‘‘the record is inadequate to demonstrate that Jenkins . . . is a diminished
witness . . . .’’
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We have emphasized that our ‘‘[s]upervisory authority is an extraordinary remedy that should be used sparingly . . . .’’ (Internal quotation marks omitted.) In re
Aisjaha N., 343 Conn. 709, 724,
275 A.3d 1181 (2022).
‘‘Although [a]ppellate courts possess an inherent supervisory authority over the administration of justice . . .
[that] authority . . . is not a form of free-floating justice, untethered to legal principle. . . . Our supervisory powers are not a last bastion of hope for every
untenable appeal. They are an extraordinary remedy
to be invoked only when circumstances are such that
the issue at hand, [although] not rising to the level
of a constitutional violation, is nonetheless of utmost
seriousness, not only for the integrity of a particular
trial but also for the perceived fairness of the judicial
system as a whole. . . . Constitutional, statutory and
procedural limitations are generally adequate to protect
the rights of the [litigant] and the integrity of the judicial
system. Our supervisory powers are invoked only in
the rare circumstance [in which] these traditional protections are inadequate to ensure the fair and just
administration of the courts.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Wade, 297
Conn. 262, 296,
998 A.2d 1114 (2010). Overall, ‘‘the integrity of the judicial system serves as a unifying principle
behind the seemingly disparate use of our supervisory
powers.’’ (Internal quotation marks omitted.) State v.
Anderson, 255 Conn. 425, 439,
773 A.2d 287 (2001).
Thus, we are more likely to invoke our supervisory
powers when there is a ‘‘pervasive and significant problem’’; State v. Hill, 307 Conn. 689, 706,
59 A.3d 196
(2013); or when the conduct or violation at issue is
‘‘offensive to the sound administration of justice . . . .’’
(Internal quotation marks omitted.) State v. Colon, 272
Conn. 106, 239–40,
864 A.2d 666 (2004), cert. denied,
546 U.S. 848,
126 S. Ct. 102,
163 L. Ed. 2d 116 (2005).
Even assuming that the rule the defendant requests
that we adopt falls within the ambit of our supervisory
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State v. Jacques
powers, we respectfully decline the defendant’s invitation to adopt such a rule. The defendant does not argue
that the traditional protection afforded when a trial
judge exercises his or her discretion to determine
whether medical memory loss constitutes a basis for
finding inconsistency is ‘‘inadequate to ensure the fair
and just administration of the courts.’’ (Internal quotation marks omitted.) State v. Wade, supra,297 Conn.
296. We do not rule out that there may be circumstances
in which, due to the nature and extent of a witness’
medical memory loss, the trial court in the exercise of
its considerable discretion concludes that the witness’
prior statement is not admissible under Whelan, either
because the statement is not inconsistent with the witness’ testimony or because the witness is unavailable
for cross-examination.16 ‘‘Whether there are inconsistencies between the two statements is properly a matter
for the trial court. . . . Inconsistencies may be shown
not only by contradictory statements but also by omissions. In determining whether an inconsistency exists,
the testimony of a witness as a whole, or the whole
impression or effect of what has been said, must be
examined. . . . Inconsistency in effect, rather than
contradiction in express terms, is the test for admitting a witness’ prior statement . . . and the same principle governs the case of the forgetful witness. . . . A
statement’s inconsistency may be determined from the
circumstances and is not limited to cases in which diametrically opposed assertions have been made. Thus,
inconsistencies may be found in changes in position
and they may also be found in denial of recollection.’’
(Emphasis omitted; internal quotation marks omitted.)
16
As previously noted, the defendant has failed to preserve any claim that
Jenkins’ lack of memory was not inconsistent with his prior statement under
Whelan. See footnote 14 of this opinion. Accordingly, we need not—and do
not—decide whether there may ever be a circumstance in which a witness’
medical condition and its effect on memory may render a statement not
inconsistent for purposes of Whelan.
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State v. Simpson, supra,286 Conn. 649. Thus, the concerns raised by the defendant are adequately addressed
under the present analytical framework of the Whelan
rule, and he has not demonstrated, and our research
has not revealed, that trial judges are improperly (and
frequently) admitting evidence based on inconsistency
when the witness has total memory loss, so as to call
it a problem that is ‘‘pervasive and significant,’’ warranting this court’s intervention. (Internal quotation
marks omitted.) In re Aisjaha N., supra, 343 Conn. 725.
For these reasons, we decline the defendant’s invitation
to exercise our supervisory authority.
IV
Finally, we turn to the defendant’s claim that the trial
court abused its discretion in finding that the state made
a prima facie showing that the testimony of Vazquez,
a jailhouse informant, was reliable under § 54-86p.
In February, 2021, Vazquez sent a letter to the state’s
attorney’s office offering to provide information regarding the defendant if the state would ‘‘help’’ him. Vazquez
sent the letter while incarcerated and after having been
sentenced to fifteen years of imprisonment for multiple
felony counts. The state subsequently contacted Vazquez to gather more information and then decided to
call him as a witness at the defendant’s trial. Once the
defendant learned that the state would present Vazquez
as a witness, the defendant requested a reliability hearing pursuant to § 54-86p and moved to exclude Vazquez’
testimony on the ground that it was unreliable under
the statutory factors.
Based on Vazquez’ testimony at the reliability hearing,
the trial court found the following facts. ‘‘[T]he defendant was a cellmate . . . [with] Vazquez’’ and was
‘‘housed in the same unit or pod at Corrigan’’ during
the ‘‘late summer, early fall of 2019,’’ although Vazquez
later stated that he was not certain of the year. Vazquez
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State v. Jacques
had not heard Chadwick’s name prior to speaking with
the defendant. Vazquez spent time with the defendant
while they were in the same unit, where ‘‘the defendant
admitted to him that he killed . . . Chadwick.’’ The
defendant also told Vazquez that the state found ‘‘blood
on his shoelaces or sneakers, that he tried to clean up
some blood with a mop . . . that . . . he had put a
cell phone in a wall in the bathroom and that the police
said that they located it by pinging a location of the
phone.’’ Vazquez also testified that the defendant told
him that he had removed the SIM card from Chadwick’s
cell phone to evade police detection and that another
person named ‘‘P.K.’’ was present the night of the
incident.
The trial court further found that Vazquez had contacted the state’s attorney’s office voluntarily. He did
not speak with ‘‘the police department or the state’s
attorney’s office prior to writing the letter.’’ The court
noted that Vazquez had never testified as an informant
but had contacted authorities on other matters in the
past, and he is an official ‘‘ ‘source of information’ for
the Department of Correction . . . .’’ The court
explained that ‘‘Vazquez receive[d] no benefit for being
a source of information’’ other than ‘‘picking a cellmate.’’ The court acknowledged that, although Vazquez
hoped to receive a reduced sentence in exchange for
his testimony, ‘‘[n]o promises ha[d] been made to Vazquez in exchange for his testimony . . . .’’
During the reliability hearing, the defendant chose
not to testify or present witnesses after Vazquez’ testimony. The trial court nevertheless gave the defendant
an opportunity to submit a supplemental brief to further
address the admissibility of Vazquez’ testimony. In his
memorandum of law in support of his motion to exclude
Vazquez’ testimony, the defendant claimed that Vazquez’ testimony was not reliable and, accordingly, was
inadmissible pursuant to § 54-86p. He primarily argued
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State v. Jacques
that the information Vazquez provided was vague and
already public knowledge. He also argued that the
Department of Correction’s records indicated that the
defendant and Vazquez did not overlap as prisoners at
Corrigan during the summer of 2019, when the defendant allegedly confessed to Vazquez.
The trial court denied the defendant’s motion to
exclude Vazquez’ testimony, finding that it was reliable.
The court stated that it had considered each factor
set forth in § 54-86p and emphasized several specific
factual findings to support its finding of reliability. First,
the court noted that Vazquez reached out to the state
‘‘without having first been contacted by authorities
. . . .’’ Second, the court found it significant that the
information that Vazquez provided was ‘‘consistent with
the investigation and corroborated other key evidence.’’
In particular, the court emphasized that Vazquez mentioned that the defendant had told him that Chadwick’s
cell phone was missing a ‘‘SIM card,’’ reasoning that
this was likely not public information. Third, the court
explained that Vazquez provided the information ‘‘without a witness’ cooperation agreement or any other benefit or promise provided in exchange for his testimony
. . . .’’ Fourth, the court noted that the statements were
obtained when the defendant and Vazquez were imprisoned in the same unit at Corrigan, even though Vazquez
was ‘‘vague’’ about the ‘‘specific date(s) . . . .’’ Finally,
the court was not made aware of an instance in which
Vazquez had recanted proposed testimony or provided
‘‘jailhouse testimony against other defendants.’’ Accordingly, the trial court concluded that, ‘‘[i]n accordance
with the testimony and exhibits submitted at the hearing, the consideration of [the defendant’s] memorandum [of law in support of his motion], and the statutory
factors set forth in [General Statutes] §§ 54-86o and 54-
86p, the court finds that the state has met its burden
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State v. Jacques
of proving the reliability of . . . Vazquez’ testimony
and makes a threshold determination of reliability.’’
The defendant claims that the trial court abused its
discretion because it was unreasonable for the court
to find that Vazquez’ testimony was reliable under § 54-
86p. The defendant primarily argues that Vazquez provided vague information about details that were already
public knowledge, inaccurate information about the
SIM card, and that the trial court ignored that Vazquez
had a strong incentive to testify against the defendant.17
The state disagrees, arguing that the defendant failed
to show a clear abuse of discretion and that the trial
court acted reasonably in making its threshold determination of reliability. We agree with the state.
It is well established that we will overturn a ‘‘trial
court’s ruling on evidentiary matters . . . only upon a
showing of a clear abuse of the court’s discretion.’’
(Internal quotation marks omitted.) State v. Mark T.,
339 Conn. 225, 232,
260 A.3d 402 (2021). We ‘‘make
every reasonable presumption in favor of upholding the
17
The defendant also argues in his reply brief that ‘‘the trial court failed
to give adequate consideration to the factors that weighed against the reliability of Vazquez’ testimony . . . .’’ Although not explicitly argued, the defendant appears to argue that, because the trial court did not analyze each
factor individually, it did not adequately consider them. Rather than set
forth its analysis factor by factor, the trial court generally concluded that,
‘‘[a]fter careful consideration of the factors set forth in the statute, the court
hereby finds that the state’’ met its burden under § 54-86p. The trial court’s
analysis was not improper in this respect. Neither § 54-86p nor our case
law requires the trial court to expressly discuss each § 54-86p factor individually. See General Statutes § 54-86p (a) (providing that trial courts ‘‘may
consider the [enumerated] factors’’ (emphasis added)); State v. Bember, 349
Conn. 417, 443,
316 A.3d 297 (2024) (§ 54-86p ‘‘does not provide that any
one of the enumerated factors is dispositive or that any are mandatory
considerations’’). Rather, it is sufficient that the trial court considered the
statutory factors. Absent evidence to the contrary, we ‘‘[presume] that the
trial court properly applied the law’’; Dur-A-Flex, Inc. v. Dy, 349 Conn.
513, 533 n.6,
321 A.3d 295 (2024); especially in light of the court’s express
acknowledgment that it carefully considered ‘‘the factors set forth in the
statute . . . .’’
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State v. Jacques
trial court’s rulings, considering only whether the court
reasonably could have concluded as it did.’’ State v.
Annulli, 309 Conn. 482, 491,
71 A.3d 530 (2013). ‘‘The
issue, therefore, is not whether we would reach the
same conclusion in the exercise of our own judgment,
but only whether the trial court acted reasonably.’’ State
v. Deleon, 230 Conn. 351, 363,
645 A.2d 518 (1994).
The legislature has set forth a nonexhaustive list of
factors that the trial court ‘‘may consider’’ when making
a prima facie determination that a jailhouse informant’s
testimony is reliable. General Statutes § 54-86p (a).
These factors include ‘‘(1) [t]he extent to which the
. . . testimony is confirmed by other evidence; (2) [t]he
specificity of the testimony; (3) [t]he extent to which
the testimony contains details known only by the perpetrator of the alleged offense; (4) [t]he extent to which
the details of the testimony could be obtained from a
source other than the defendant; and (5) [t]he circumstances under which the jailhouse witness initially provided information supporting such testimony to . . .
[the] [p]olice . . . including whether the jailhouse witness was responding to a leading question.’’ General
Statutes § 54-86p (a). ‘‘Importantly, the statute does not
provide that any one of the enumerated factors is dispositive or that any are mandatory considerations.’’
State v. Bember, 349 Conn. 417, 443,
316 A.3d 297 (2024).
When considering the factors enumerated in § 54-86p
(a), a court can consider ‘‘information . . . disclosed
pursuant to . . . subsection (a) of section 54-86o
. . . .’’ General Statutes § 54-86p (a). This includes (1)
information about a jailhouse witness’ criminal history,
(2) the existence of a jailhouse witness cooperation
agreement, (3) details about ‘‘any statement allegedly
given by the defendant to a jailhouse witness,’’ (4)
whether the witness has previously ‘‘recanted any testimony subject to the disclosure,’’ and (5) ‘‘[i]nformation
concerning any other criminal prosecution in which the
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jailhouse witness testified, or offered to testify . . . .’’
General Statutes § 54-86o (a).
Here, the trial court reasonably concluded that, consistent with § 54-86p (a), independent evidence corroborated specific details of Vazquez’ testimony. Specifically,
Vazquez testified that the defendant told him that the
police had found blood on his shoes or shoelaces and
a mop at the crime scene, and that the defendant sought
to remove the SIM card to prevent the police from
tracking the cell phone’s location. Police testimony and
exhibits introduced at trial confirmed these details. The
details were specific, and it is unlikely that a source
other than the defendant and the police would have
known them.
The defendant unpersuasively challenges the reasonableness of these findings. In his brief, the defendant
primarily emphasizes that all the details, besides the
SIM card, were publicly available, in which case, it
is immaterial that they were corroborated. Nothing in
Vazquez’ testimony or the record, however, supports a
conclusion that the other facts were publicly available.
Indeed, the defendant did not present evidence that
established that these details were publicly available
or that Vazquez had access to that information while
incarcerated. See, e.g., State v. Little, 194 Conn. 665,
673,
485 A.2d 913 (1984) (‘‘[a]ny inferences drawn [by
the trier of fact] must be rational and founded upon
the evidence’’).
The defendant further argues that the details about
the SIM card are factually incorrect because the police
report indicated that the ‘‘SD card,’’ not the SIM card,
was missing from Chadwick’s cell phone. The defendant
contends that the trial court ‘‘presumably relied on this
information when making its finding[s] . . . .’’ The trial
court, however, reasonably could have inferred that the
defendant mistakenly thought he had removed the SIM
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card but actually had removed the SD card. See, e.g.,
State v. Mark T., supra, 339 Conn. 232. The trial court
also reasonably could have inferred that the defendant
thought that the SD card was the SIM card. In either
case, the trial court could have reasonably concluded
that this information supported its conclusion that Vazquez’ testimony was reliable.
The defendant also argues that the trial court could
not have reasonably concluded that the circumstances
under which Vazquez provided the information to the
state’s attorney’s office were reliable. He claims that in
situations, as here, in which a jailhouse informant writes
a letter explicitly offering to provide information about
the defendant in exchange for the state’s ‘‘help’’ shortly
after receiving a fifteen year sentence, a trial court
cannot conclude that the informant’s testimony is reliable. We have emphasized, however, that ‘‘the expectation of a [r]eward for testifying is a systemic reality
. . . even [when] the informant has not received an
explicit promise of a reward.’’ (Citation omitted; internal quotation marks omitted.) State v. Arroyo, 292 Conn.
558, 568,
973 A.2d 1254 (2009), cert. denied,
559 U.S.
911,
130 S. Ct. 1296,
175 L. Ed. 2d 1086 (2010); see also
id., 569 (highlighting that ‘‘several commentators have
pointed out that jailhouse informants frequently have
motives to testify falsely that may have nothing to do
with the expectation of receiving benefits from the government’’). Furthermore, the trial court considered
other aspects of Vazquez’ testimony and information
provided under § 54-86o. Specifically, the trial court
highlighted that Vazquez’ initial letter to the state was
unprompted, that he testified without a witness cooperation agreement, and that he had not otherwise
recanted proposed testimony in other criminal proceedings or previously testified as a jailhouse informant.
Based on this information, the court could have reason-
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State v. Jacques
ably concluded that the circumstances under which
Vazquez’ statement was given were reliable.
Even if this court came out differently on the question
of whether the circumstances under which Vazquez
gave his statement supported a finding of reliability,
we cannot, on this record, conclude that the trial court’s
overall finding of reliability was a clear abuse of discretion. Whether the circumstances under which Vazquez
initially provided information to the state support a
finding of reliability implicates one statutory factor. But
no single factor is ‘‘dispositive or . . . mandatory
. . . .’’ State v. Bember, supra, 349 Conn. 443. Because
the trial court’s factual findings were otherwise reasonable, we conclude that the trial court did not abuse its
discretion in finding that the state had made a prima
facie showing that Vazquez’ testimony was reliable and,
therefore, admissible at trial after consideration of all
of the factors enumerated in §§ 54-86o and 54-86p.
The judgment is affirmed.
In this opinion the other justices concurred.
