State v. Leniart

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STATE OF CONNECTICUT v. GEORGE

MICHAEL LENIART

(AC 36358)

Sheldon, Prescott and Flynn, Js.

Argued October 8, 2015—officially released June 14, 2016

(Appeal from Superior Court, judicial district of New

London, Jongbloed, J.)

Lauren Weisfeld, senior assistant public defender,

for the appellant (defendant).

Stephen M. Carney, senior assistant state’s attorney,

with whom, on the brief, was Michael L. Regan, state’s

attorney, for the appellee (state).

Opinion

PRESCOTT, J. The defendant, George Michael Leni-

art, appeals from the judgment of conviction, rendered

after a jury trial, of murder in violation of General Stat-

utes § 53a-54a (a),1 and three counts of capital felony

in violation of General Statutes (Rev. to 1995) § 53a-

54b (5), (7) and (9), as amended by Public Acts 1995,

No. 95-16, § 4.2 The defendant claims that the evidence

was insufficient to prove beyond a reasonable doubt

each of the crimes of which he was convicted. He also

claims that the trial court improperly excluded a video-

tape of an interview conducted by police of a crucial

prosecution witness just prior to the administration of

a polygraph examination, admitted evidence of prior

misconduct committed by the defendant, and excluded

expert testimony that he proffered regarding the lack

of reliability of jailhouse informant testimony. Although

we disagree with the defendant’s claims regarding the

sufficiency of the evidence, we agree that the court

improperly excluded the polygraph pretest interview

videotape, and, accordingly, we reverse the judgment

of conviction and remand the case for a new trial.

Because the remaining two evidentiary issues are likely

to arise again on remand, we address them in turn.

Although we disagree with the defendant that the court

improperly admitted evidence of his prior misconduct,

we agree that the court improperly excluded expert

testimony proffered by the defendant regarding the

reliability of jailhouse informant testimony.

The jury reasonably could have found the following

facts. On May 29, 1996, the victim, A.P.,3 who was fifteen

years old, snuck out of her parents’ home to meet P.J.

Allain, another teenager, so that they could smoke mari-

juana, drink alcohol, and have sex. The two teenagers

were picked up by the defendant, who at the time was

thirty-three years old. They then drove to a secluded

location in the woods.

A.P. and Allain drank beer, smoked marijuana, and

kissed in the defendant’s pickup truck. The defendant

took Allain aside and told him that he wanted ‘‘to do

her’’ and that he ‘‘wanted a body for the altar.’’ The

defendant had previously told Allain that he was in

a cult.

Allain returned to the truck and told A.P. that she

was going to be raped by the defendant. A.P. asked that

she have sex only with Allain. Allain then removed her

clothes and had sex with her in the truck while the

defendant watched through the windshield. After Allain

and A.P. finished having sex, the defendant climbed

into the truck and sexually assaulted A.P. During the

assault, Allain kept his hand on A.P.’s breast but could

not look at her because he felt horrible. Afterward, A.P.

pretended not to be upset so that the defendant would

not harm her further.

The defendant then proceeded to drive the teenagers

toward home. The defendant dropped off Allain near his

home. After Allain was no longer present, the defendant

drove A.P. to an unknown location, where he pretended

to run out of gas. The defendant forced A.P. to run into

the woods with him, and at times he had to drag her

along. The defendant then choked A.P., killed her, and

disposed of her body in an unknown location. A.P. was

never seen again by anyone despite a nationwide search

by law enforcement for many years, and her remains

have never been recovered.

The defendant admitted to four individuals, on differ-

ent occasions, to killing A.P. and/or to disposing of her

body: Allain4 and three inmates—Michael Douton,5 Zee

Ching,6 and Kenneth Buckingham.7 The defendant was

incarcerated with Douton, Ching, and Buckingham at

various times while he was serving a sentence for sexu-

ally assaulting K.S., a thirteen year old girl, approxi-

mately six months prior to the disappearance of A.P.

A warrant was issued for the defendant’s arrest on

March 28, 2008, and the defendant was subsequently

charged in a substitute, long form information with

the following crimes: murder in violation of § 53a-54a;

capital felony in violation of § 53a-54b (5) (kidnap-mur-

der); capital felony in violation of § 53a-54b (7) (murder

in the course of sexual assault); and capital felony in

violation of § 53a-54b (9) (murder of person under

age sixteen).

The matter was tried to a jury, Jongbloed, J., presid-

ing. On March 2, 2010, the jury returned a verdict of

guilty on all counts. On June 22, 2010, the court merged

the verdicts into a single conviction of capital felony and

sentenced the defendant to a term of life imprisonment

without the possibility of release. This appeal followed.

Additional facts and procedural history shall be set forth

as necessary to address the claims of the defendant.

I

SUFFICIENCY OF THE EVIDENCE

The defendant first claims that the evidence was

insufficient to prove beyond a reasonable doubt any of

the charges of which he was convicted. Specifically,

the defendant asserts that the evidence was insufficient

to establish beyond a reasonable doubt that (1) A.P. is

dead, because, pursuant to the corpus delicti rule, the

defendant’s alleged confessions may not be used as

evidence to prove that A.P. is dead in the absence of

independent proof of her death; (2) the defendant

intended to kill A.P.; (3) he murdered A.P. during the

commission of a sexual assault because there was no

evidence independent of his confessions that he sexu-

ally assaulted A.P.; and (4) he murdered A.P. in the

course of a kidnapping or before she could be returned

to safety.8 For the reasons that follow, the defendant

cannot prevail on his sufficiency of the evidence claims.

A

We first turn to the defendant’s claim that the evi-

dence was insufficient to prove beyond a reasonable

doubt that A.P. is dead because, in his view, the only

evidence of A.P.’s death is the testimony of four of the

state’s witnesses that the defendant separately con-

fessed to each of them that he killed A.P. and disposed

of her body. The defendant argues that, under these

circumstances, the common-law corpus delicti rule pre-

vents him from being convicted of murder and capital

felony solely on the basis of his uncorroborated confes-

sions and in the absence of independent extrinsic evi-

dence of the fact of death of the alleged victim.

In response, the state argues that the evidence is

sufficient to prove A.P.’s death beyond a reasonable

doubt because (1) the defendant cannot rely on the

corpus delicti rule, as he failed to object to the admis-

sion of his confessions at trial; and (2), under Connecti-

cut’s formulation of the corpus delicti rule, a

defendant’s confession may be used to prove the corpus

delicti, i.e., the death of the victim, as long as there is

corroborating evidence that substantially establishes

the trustworthiness of the defendant’s confession. Such

corroborating evidence, the state contends, need not

itself independently establish the corpus delicti, may

be circumstantial in nature, and need not prove any

element of the offense beyond a reasonable doubt.

We reject the defendant’s claim that the evidence

was insufficient to prove A.P.’s death. We reach this

conclusion primarily for two reasons. First, we con-

clude that under Connecticut law the corpus delicti

rule is an evidentiary rule regarding the admissibility

of confessions rather than a substantive rule of criminal

law to be applied in reviewing the sufficiency of the

state’s evidence. In this case, the defendant did not

object to the admissibility of his confessions at trial

and has not challenged their admissibility on appeal.9

Accordingly, we conclude that because the defendant

has not challenged the admission of the confessions,

the confessions may be considered by this court in

analyzing the sufficiency of the state’s evidence without

reference to the corpus delicti rule.

Second, we conclude that, even if the defendant is

permitted to raise the corpus delicti rule as part of his

sufficiency of the evidence claim, the sufficiency claim

fails because substantial evidence, circumstantial or

otherwise, was admitted at trial to corroborate both

the trustworthiness of his confessions and the fact of

A.P.’s death. As a result, because the defendant’s confes-

sions may be considered by this court in assessing the

sufficiency of the evidence, we apply the traditional

standard of review in assessing the evidence and con-

clude that the evidence was sufficient for the jury to

conclude beyond a reasonable doubt that A.P. is dead.

We begin our analysis by reviewing the purpose, his-

tory, and present scope of the corpus delicti rule in

Connecticut. The corpus delicti rule, which is often also

referred to as the corroboration rule, exists ‘‘to protect

against conviction of offenses that have not, in fact,

occurred, in other words, to prevent errors in convic-

tions based solely upon untrue confessions to nonexis-

tent crimes.’’ State v. Arnold, 201 Conn. 276, 287, 514

A.2d 330 (1986). An early version of Connecticut’s cor-

roboration rule was extensively discussed in State v.

Doucette, 147 Conn. 95, 98–100, 157 A.2d 487 (1959),

overruled in part by State v. Tillman, 152 Conn. 15, 20,

202 A.2d 494 (1964). The court in Doucette described

the rule as follows: ‘‘[T]he corpus delicti [that is, that

the crime charged has been committed by someone]

cannot be established by the extra-judicial confession

of the defendant unsupported by corroborative evi-

dence. . . .

‘‘The Connecticut rule, which we reaffirm, is that,

although the confession is evidence tending to prove

both the fact that the crime [charged] was committed

[by someone, that is, the corpus delicti] and the defen-

dant’s agency therein, it is not sufficient of itself to

prove the former, and, without evidence [from another

source] of facts also tending to prove the corpus delicti,

it is not enough to warrant a conviction; and that there

must be such extrinsic corroborative evidence as will,

when taken in connection with the confession, establish

the corpus delicti in the mind of the trier beyond a

reasonable doubt. . . . The independent evidence

must tend to establish that the crime charged has been

committed and must be material and substantial, but

need not be such as would establish the corpus delicti

beyond a reasonable doubt apart from the confession.

. . . Properly this [extrinsic] evidence should be intro-

duced and the court satisfied of its substantial character

and sufficiency to render the confession admissible,

before the latter is allowed in evidence. State v.

LaLouche, [116 Conn. 691, 695, 166 A. 252 (1933)].’’

(Citations omitted; emphasis altered; internal quotation

marks omitted.) State v. Doucette, supra, 147 Conn.

98–100. In Doucette, the court concluded that the sum

total of the evidence presented by the state of the corpus

delicti was inadequate to constitute ‘‘material and sub-

stantial evidence of the corpus delicti under our rule

[and we] are therefore constrained to find error in the

admission of [the evidence of the defendant’s extra-

judicial confession].’’ (Emphasis added; internal quota-

tion marks omitted.) Id., 106.

In 1964, our Supreme Court in State v. Tillman, 152

Conn. 15, 18, 202 A.2d 494 (1964), decided that Connecti-

cut’s traditional corpus delicti rule needed refinement

in part because of ‘‘a lack of harmony in the decisions

as to the extent and nature of the corroborative or

extrinsic evidence required, both as a prerequisite to

the admission of a confession into evidence and as a

prerequisite to a conviction where confessions have

been introduced.’’ After examining authorities from

numerous jurisdictions, the court in Tillman concluded

that Connecticut’s ‘‘difficulties in the application of our

corroboration rule largely stem from our present defini-

tion of corpus delicti and dictate its abandonment.’’ Id.,

20. Instead, the court adopted Professor John Henry

Wigmore’s definition of the corpus delicti as being ‘‘the

occurrence of the specific kind of loss or injury

embraced in the crime charged.’’ Id. Specifically, the

court stated that, in a homicide case, ‘‘the corpus delicti

is the fact of the death, whether or not feloniously

caused, of the person whom the accused is charged

with having killed or murdered.’’10 Id.

The court in Tillman also emphasized that although

the corroborating evidence must be material and sub-

stantial, it may be circumstantial in nature. Id.11 After

applying the new definition of corpus delicti to the

corroboration evidence in the case before it, the court

in Tillman concluded that there ‘‘was no error in the

admission or use of the confessions.’’ Id., 21.

The next major refinement of Connecticut’s corpus

delicti rule occurred in State v. Harris, 215 Conn. 189,

192–97, 575 A.2d 223 (1990). In Harris, the defendant

was charged with operating a motor vehicle while under

the influence of liquor. Id., 190. At trial, the court

granted a motion in limine to exclude inculpatory state-

ments made by the defendant because the state had

failed to produce material and substantial independent

evidence of the corpus delicti. Id., 191. The state

appealed.

Our Supreme Court reversed the judgment of the trial

court, holding that the corpus delicti rule should not

have barred the admission of the defendant’s inculpa-

tory statements. Id., 196. In so doing, the court reasoned

that the corpus delicti rule as formulated in State v.

Tillman, supra, 152 Conn. 20, which required corrobo-

ration of ‘‘the specific kind of loss or injury embraced

in the crime charged,’’ should not apply in Harris

because the crime of operating a motor vehicle while

under the influence of liquor proscribes only conduct.

See State v. Harris, supra, 215 Conn. 193. The court in

Harris reasoned that ‘‘when the crime charged prohib-

its certain conduct but does not encompass a specific

harm, loss or injury, a different approach to the corpus

delicti rule, other than that enunciated in Tillman, is

required.’’ Id.

Instead of following the traditional rule, the court in

Harris adopted the formulation of the corroboration

rule set forth in Opper v. United States, 348 U.S. 84,

93, 75 S. Ct. 158, 99 L. Ed. 101 (1954), which held that

‘‘the corroborative evidence need not be sufficient,

independent of the statements, to establish the corpus

delicti. It is [only] necessary, therefore, to require the

Government . . . to establish the trustworthiness of

the [defendant’s] statement.’’ (Emphasis omitted; inter-

nal quotation marks omitted.) State v. Harris, supra,

215 Conn. 193–94. Thus, ‘‘[i]f . . . there is substantial

extrinsic evidence tending to demonstrate that the

statements of the defendant are true, i.e., trustworthy,

the statements are admissible. . . . The corpus delicti

of the crime may then be established by the statements

of the accused and the extrinsic evidence considered

together.’’ (Citation omitted; internal quotation marks

omitted.) Id., 195.

Our Supreme Court’s last major reformulation of our

corroboration rule came in State v. Hafford, 252 Conn.

274, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct.

136, 148 L. Ed. 2d 89 (2000). In Hafford, the defendant

at trial filed a motion to exclude a portion of his confes-

sion in which he stated that he sexually assaulted the

victim before murdering her. Id., 314. The trial court,

relying on State v. Harris, supra, 215 Conn. 189, denied

the motion, finding that there was sufficient corroborat-

ing evidence to establish that the defendant’s confes-

sion was trustworthy. State v. Hafford, supra, 314–15.

On appeal, the defendant claimed that, because he

was charged with the felony of sexual assault,12 which

requires proof of a specific loss or injury, the trial court

improperly applied the version of the corroboration

rule set forth in Harris. Id., 315. Instead, the defendant

argued in Hafford, the trial court should have applied

the corroboration rule set forth in State v. Tillman,

supra, 152 Conn. 15, and, before admitting the confes-

sion, required independent corroborating evidence of

the corpus delicti itself, i.e., that the victim was sexually

assaulted, rather than evidence that did not relate to

the corpus delicti but otherwise corroborated the relia-

bility of the defendant’s admission that he sexually

assaulted her. State v. Hafford, supra, 252 Conn. 315.

In rejecting the defendant’s claim, our Supreme Court

concluded that the same version of the corroboration

rule adopted in Harris should be extended to all types

of crimes, not just those that prohibit conduct and do

not require demonstration of a specific loss or injury.

Id., 317. In other words, in all criminal cases in which

the corroboration rule is raised, the state need only

present extrinsic corroborating evidence of the trust-

worthiness of the defendant’s confession and need not

offer material and substantial independent evidence of

the corpus delicti itself. The court held that as long as

a sufficient showing has been made that the confession

is trustworthy, the confession itself may be used to

meet the state’s burden to prove beyond a reasonable

doubt the corpus delicti and all elements of the offense.

In a somewhat cryptic footnote, however, the court

in Hafford provides what can be described as commen-

tary on its newly minted holding, using language that

the concurring opinion here appears to construe as

carving out a limited exception for homicide cases. In

that footnote, the court stated: ‘‘We note, however, that

proving the trustworthiness of a defendant’s confession

to a crime resulting in injury or loss often will require

evidence of that injury or loss. For example, a confes-

sion to a homicide likely would not be trustworthy

without evidence of the victim’s death.’’ (Emphasis

added.) Id., 317 n.23.

We have several observations about this footnote.

First, by its use of the adverbs ‘‘often’’ and ‘‘likely,’’

our Supreme Court appeared to recognize at least the

possibility that in some homicide cases, the state could

be successful in establishing that a defendant’s confes-

sion is sufficiently trustworthy without independent,

extrinsic evidence of the victim’s death. We are uncon-

vinced that the footnote was intended to convey any

deviation from the court’s holding. Rather, the footnote

simply conveyed that in many cases involving an injury

or loss, the trustworthiness of the confession might

be most easily and sufficiently corroborated through

evidence of the corpus delicti itself. That statement,

however, does not alter the court’s holding that such

evidence is no longer mandatory if other sufficient cor-

roborating evidence is available.

Second, unlike the former version of the corrobora-

tion rule expressed in Tillman, the touchstone of the

court’s analysis in Hafford is the trustworthiness of the

confession rather than an evaluation of whether the

state has presented independent, material, and substan-

tial evidence of the corpus delicti itself. We do not read

the footnote, which contains no analysis, to change

that focus.

Third, the footnote is dictum. ‘‘Dictum is generally

defined as [a]n expression in an opinion which is not

necessary to support the decision reached by the court.

. . . A statement in an opinion with respect to a matter

which is not an issue necessary for decision. . . . Our

Supreme Court has instructed that dicta have no prece-

dential value.’’ (Citation omitted; internal quotation

marks omitted.) State v. Torres, 85 Conn. App. 303, 320,

858 A.2d 776, cert. denied, 271 Conn. 947, 861 A.2d 1179

(2004). In Hafford, the victim’s body was found and thus

there was undeniable evidence of the victim’s death. As

a result, there was no need for the court to opine

whether a confession to a homicide may or may not

be trustworthy without evidence of the victim’s death.

Moreover, the footnote has never been relied upon by

our Supreme Court or this court. In any event, even if

we were to conclude that in homicide cases the trust-

worthiness of a confession may only be sufficiently

established by extrinsic evidence of the victim’s death,

we conclude, for reasons that we will subsequently

discuss at greater length, that the state in this case has

offered sufficient independent evidence of A.P.’s death,

along with other facts, to establish both the trustworthi-

ness of the defendant’s confession and the fact of death.

Having ascertained and articulated the specific ver-

sion of the corroboration rule that is to be applied,

we next turn to the issue of whether Connecticut’s

corroboration rule is an evidentiary rule that must be

raised by objecting to the admission of the defendant’s

confessions at trial, or whether it is a substantive rule

of criminal law that may be raised for the first time

after the confessions are introduced, either at trial or

in postverdict proceedings, including on appeal.13 This

question is not academic because if the corroboration

rule is a substantive rule of criminal law, i.e., an implicit

element of the state’s case for which there must be

sufficient evidence, then the state’s failure to establish

the corpus delicti could entitle a defendant to a judg-

ment of acquittal. If the corroboration rule is simply

an evidentiary rule that prohibits the admission of a

defendant’s confession until the state has offered mate-

rial and substantial evidence to establish the trustwor-

thiness of the defendant’s confession, then any

reversible error by the trial court in applying the rule

could only result in a new trial for a defendant rather

than a judgment of acquittal. We conclude that Connect-

icut’s corroboration rule is properly understood and

applied as an evidentiary rule rather than a substantive

rule of criminal law.

We begin our analysis by reviewing Connecticut

authority on this point. Prior to 1988, our Supreme Court

typically applied the corroboration rule in the context

in which the defendant raised it. In other words, if

a defendant at trial objected to the admission of his

confession on the ground that the state had not satisfied

the corpus delicti rule, then, on appeal, our courts

treated the claim as an evidentiary issue. See, e.g., State

v. Hafford, supra, 252 Conn. 314 (‘‘The defendant’s final

claim is that . . . [his] confession was inadmissible

under the corpus delicti rule. We disagree.’’); State v.

Tillman, supra, 152 Conn. 17–21 (‘‘The defendant

objected to the admission . . . of each of these confes-

sions on the ground that the state had failed to offer

sufficient preliminary proof of the corpus delicti to ren-

der any of the confessions admissible . . . . [T]here

was no error . . . .’’ [Citations omitted.]). If, however,

the defendant raised the corroboration rule as part of

a sufficiency of evidence claim, then our courts

reviewed the claim under that rubric. See, e.g., State v.

Arnold, supra, 201 Conn. 286 (‘‘a naked extrajudicial

confession of guilt by one accused of crime is not suffi-

cient to sustain a conviction when unsupported by any

corroborative evidence’’ [emphasis in original; internal

quotation marks omitted]).

In 1988, our Supreme Court decided State v. Uretek,

Inc., 207 Conn. 706, 543 A.2d 709 (1988). In Uretek, Inc.,

the defendant company and its vice president, John

Andrews, were prosecuted for knowingly storing haz-

ardous waste without a permit. Id., 707. At trial, the

defendants did not challenge the admission of certain

inculpatory extrajudicial statements made by Andrews.

Id., 713. On appeal, the defendants challenged the suffi-

ciency of the evidence. Id., 707. As part of their eviden-

tiary sufficiency claims, the defendants contended that

the statements made by Andrews could not be consid-

ered because the state had failed to present independent

evidence to establish the corpus delicti. Id., 713.

Our Supreme Court, however, declined to review the

corpus delicti claim because the defendant company

had failed to object to the admission of the statements

at trial or to move for a judgment of acquittal on the

basis of a lack of corpus delicti evidence. Id. The court

then stated that it would not review the unpreserved

corpus delicti claim because it did ‘‘not implicate a

fundamental constitutional right’’ and, thus, did not sat-

isfy the requirements for review of unpreserved claims

set forth in State v. Evans, 165 Conn. 61, 70, 327 A.2d

576 (1973), the precursor to State v. Golding, 213 Conn.

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

Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).

State v. Uretek, Inc., supra, 207 Conn. 713.

Less than one year later, however, our Supreme

Court, in State v. Oliveras, 210 Conn. 751, 757, 557 A.2d

534 (1989), was again confronted with a sufficiency of

the evidence claim that relied upon the corpus delicti

rule. At trial, the defendant had failed to object to the

admission of his inculpatory statement or raise the cor-

pus delicti rule in his motion for a judgment of acquittal.

Although the court recognized that in State v. Uretek,

Inc., supra, 207 Conn. 713, it had ‘‘summarily’’ declined

to review an unpreserved corpus delicti claim because

it was not of constitutional magnitude; State v. Oliveras,

supra, 756; the court in Oliveras stated that ‘‘[w]e need

not now decide whether a claim that there was no proof

of the corpus delicti . . . from evidence independent

of the confession or admissions of an accused would

warrant review under Evans as implicating a constitu-

tional right.’’ Id., 757.14 Instead, the court chose to

review the unpreserved claim and concluded that there

was ample evidence of the victim’s death15 and, there-

fore, that the defendant’s confession could be used to

prove the other elements of the offense. Id. In choosing

to review the claim, the court did not indicate whether

it considered the claim to be unpreserved because the

defendant had failed to object to the admission of his

confession.

Despite the language in Oliveras, this court pre-

viously has concluded that it is bound by our Supreme

Court’s holding in Uretek, Inc., that the corroboration

rule is not of constitutional magnitude and, thus, an

unpreserved corpus delicti claim founders on the sec-

ond prong of Golding. See State v. Heredia, 139 Conn.

App. 319, 324–25, 55 A.3d 598 (2012), cert. denied, 307

Conn. 952, 58 A.3d 975 (2013). As we stated in Heredia,

‘‘[o]ur Supreme Court has held that corpus delicti does

not implicate a fundamental constitutional right suffi-

cient to satisfy the standard set forth in Golding. In

State v. Uretek, Inc., [supra, 207 Conn. 713], our

Supreme Court summarily rejected a claim that the lack

of extrinsic corroboration of an admission that was

vital to proving an element of the offense implicated a

fundamental constitutional right and, therefore, con-

cluded that such a claim did not qualify for review. . . .

State v. Oliveras, [supra, 210 Conn. 756] . . . .

Although our Supreme Court in Oliveras retreated from

the holding in Uretek, Inc., by declining to decide

whether [an unpreserved] claim that there was no proof

of the corpus delicti . . . would warrant review . . .

as implicating a constitutional right; [id., 757]; and this

court in State v. McArthur, [96 Conn. App. 155, 166,

899 A.2d 691, cert. denied, 280 Conn. 908, 907 A.2d 93

(2006)], assume[d] . . . that the defendant’s [unpre-

served corpus delicti] claim [was] constitutional in

nature in order to reach its merits, Uretek, Inc., has not

been expressly overruled. . . . Accordingly, we con-

clude that the defendant has failed to show that his

claim is of constitutional magnitude as required by the

second Golding prong.’’ (Citations omitted; internal

quotation marks omitted.) State v. Heredia, supra,

324–25.16

The defendant argues that Heredia is wrongly

decided and should be overruled because (1) other juris-

dictions have given unpreserved corpus delicti claims

appellate review, and (2) Uretek, Inc., is not binding

authority because our Supreme Court retreated in Oli-

veras from its holding in Uretek, Inc. We decline to

overrule Heredia because ‘‘[t]his court’s policy dictates

that one panel should not, on its own, [overrule] the

ruling of a previous panel. The [overruling] may be

accomplished only if the appeal is heard en banc.’’

(Internal quotation marks omitted.) State v. Ortiz, 133

Conn. App. 118, 122, 33 A.3d 862 (2012), aff’d, 312 Conn.

551, 93 A.3d 1128 (2014). Moreover, we agree with this

court’s conclusion in Heredia that because the Supreme

Court in Oliveras did not overturn its prior decision

in Uretek, Inc., this court remains obligated to follow

Uretek, Inc.

Even if we were to conclude that we are not bound

by Uretek, Inc., and thus that the law on this issue

remains unsettled in Connecticut, we would still reject

the defendant’s claim that he is entitled to rely on the

corroboration rule on appeal despite his failure to

object to the admission of his alleged confessions at

trial and his argument that the corroboration rule is a

substantive rule of criminal law. The question of

whether the corroboration rule is an evidentiary rule or

a substantive rule of criminal law has been the subject

of significant discussion in other jurisdictions and by

commentators. Professor Wayne LaFave aptly

describes this debate as follows: ‘‘In its traditional form,

the corpus delicti rule may have barred the government

from introducing the defendant’s confession until it had

first proved the corpus delicti. However, it is now gener-

ally accepted that a trial judge has the discretion to

vary the order of proof, meaning that the government

may introduce the defendant’s confession before it has

introduced the additional evidence that will establish

the corpus delicti, so long as the corpus delicti is proved

before the government rests. Aside from the order of

proof, there is also the question of whether the corpus

delicti rule simply defines the evidentiary foundation

needed to support the introduction of the defendant’s

confession, so that the decision is to be made by the

trial judge before the case is submitted to the jury, or

whether on the other hand it establishes an implicit

element of the government’s proof, so that the trial

judge’s evidentiary ruling would be merely preliminary

to the jury’s later determination of corpus delicti. There

is a split of authority between the ‘evidentiary founda-

tion’ and ‘implicit element’ approaches, though appar-

ently most courts follow the latter view.’’ (Emphasis

omitted; footnotes omitted.) 1 W. LaFave, Substantive

Criminal Law (2d Ed. 2003) § 1.4 (b), p. 31; compare,

e.g., Langevin v. State, 258 P.3d 866, 869 (Alaska App.

2011) (‘‘Alaska cases . . . have followed the ‘eviden-

tiary foundation’ approach to corpus delicti’’); State v.

Fundalewicz, 49 A.3d 1277, 1278–79 (Me. 2012) (credi-

ble evidence of corpus delicti must be presented before

defendant’s confession is admissible); State v. Sweat,

366 N.C. 79, 88, 727 S.E.2d 691 (2012) (‘‘corpus delicti

doctrine is a legal question of admissibility’’); with Peo-

ple v. LaRosa, 293 P.3d 567, 578–79 (Colo. 2013) (en

banc) (treating corpus delicti doctrine as rule affecting

sufficiency of evidence); State v. Reddish, 181 N.J. 553,

617–19, 859 A.2d 1173 (2004) (reviewing whether trial

court properly denied defendant’s motion for judgment

of acquittal); Commonwealth v. Byrd, 490 Pa. 544, 556,

417 A.2d 173 (1980) (given limited nature of corpus

delicti requirement, state produced sufficient indepen-

dent evidence to support conviction of robbery, con-

spiracy). Professor LaFave sides with the evidentiary

foundation formulation of the rule.17 See 1 W. LaFave,

supra, p. 31.

Some federal courts have characterized the corrobo-

ration rule as a hybrid rule. For example, the United

States Court of Appeals for the Seventh Circuit recently

stated: ‘‘The corroboration principle sometimes comes

into play in the trial court’s decision to admit the defen-

dant’s confession and also if he later challenges the

sufficiency of the evidence.’’ United States v. McDowell,

687 F.3d 904, 912 (7th Cir. 2012); see also United States

v. Dickerson, 163 F.3d 639, 642 (D.C. Cir. 1999) (‘‘[t]o

be sure, the corroboration requirement has also been

described as a rule governing the sufficiency of the

evidence’’). Even in those jurisdictions that consider

the corpus delicti rule to be an implicit element of an

offense or treat it as a hybrid rule, many courts have

concluded that no special instructions to the jury are

required. See, e.g., United States v. McDowell, supra,

912; United States v. Dickerson, supra, 642–43; United

States v. Singleterry, 29 F.3d 733, 737–38 (1st Cir.), cert.

denied, 513 U.S. 1048, 115 S. Ct. 647, 130 L. Ed. 2d

552 (1994).

After an extensive review of the case law and com-

mentary, we conclude, for the following reasons, that

Connecticut’s version of the corroboration rule is best

characterized and applied as an evidentiary rule, under

which a trial judge, upon objection, assesses the corrob-

oration evidence offered by the state before deciding

whether to admit the defendant’s inculpatory state-

ments. First, our Supreme Court has chosen to follow

the corroboration rule established for federal courts in

Opper v. United States, supra, 348 U.S. 93. Under the

typical application of that rule, the court exercises its

traditional evidentiary gatekeeping function by deciding

whether the defendant’s extrajudicial confession is suf-

ficiently trustworthy before allowing the jury to hear

the confession evidence. State v. Harris, supra, 215

Conn. 194–95. If the defendant’s inculpatory statements

are admitted by the trial court, the jury typically does

not receive any instruction from the court regarding

the corroboration rule, but instead simply assesses

whether all of the evidence is sufficient to prove the

elements of the offense beyond a reasonable doubt. In

so doing, the jury accords the defendant’s confession

whatever evidentiary weight it concludes is appropriate

after considering all relevant evidence, including evi-

dence of its trustworthiness.18 See Lego v. Twomey, 404

U.S. 477, 486, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972)

(‘‘[j]uries [are] at liberty to disregard confessions that

are insufficiently corroborated or otherwise deemed

unworthy of belief’’).

Certainly, if the corroboration rule implicated the

sufficiency of the evidence, then the jury would be

expected to play some role in its application but, as

previously discussed, most courts following the Opper

rule do not instruct the jury on the corroboration rule.

Moreover, in our view, an appellate court reviewing the

jury’s factual determination of guilt should not apply a

sufficiency of the evidence standard that looks at the

evidence at trial through a different lens than that used

by the jury in deciding whether the evidence established

the defendant’s guilt beyond a reasonable doubt.

Instead, an appellate court should review for error the

trial court’s gatekeeping determination that the defen-

dant’s confessions are sufficiently trustworthy to permit

the jury to hear them.

Second, there is no constitutional requirement to

have a corroboration rule at all. See, e.g., United States

v. Dickerson, supra, 163 F.3d 643 (corroboration

requirement ‘‘stems from a judicially created eviden-

tiary rule’’). Indeed, at least one state has chosen to

abandon altogether the corroboration rule; see State v.

Suriner, 154 Idaho 81, 87–88, 294 P.3d 1093 (2013); and

other jurisdictions, such as Connecticut, have signifi-

cantly narrowed the rule over time. See State v. Hafford,

supra, 252 Conn. 315–17. If the rule itself is not constitu-

tional in nature and jurisdictions are free to abandon

it altogether, then it makes little sense to characterize

it as an implicit element of the state’s case that is subject

to appellate review like all other unpreserved suffi-

ciency of the evidence claims.19

Finally, treating the corroboration rule as an implicit

element of the offense has been criticized by courts and

commentators because it places juries in the difficult

position of having to determine whether the state has

proven the corpus delicti or otherwise met the corrobo-

ration rule after it has heard evidence regarding the

defendant’s confessions. See, e.g., Langevin v. State,

supra, 258 P.3d 870; 1 W. LaFave, supra, p. 31. As the

Alaska Court of Appeals explained in Langevin v. State,

supra, 870: ‘‘The implicit element approach to corpus

delicti is difficult to reconcile with our law’s normal

view concerning a jury’s ability to dispassionately

assess a confession. Confessions can be powerful evi-

dence, and courts have traditionally feared that, once

a jury hears the defendant’s confession, the jury will

be unable to put aside this knowledge.

‘‘One example of the cautious approach taken by

courts when faced with admitting defendants’ confes-

sions is the Bruton rule—the rule that, when two or

more defendants are being tried jointly, if one defendant

has confessed and has implicated the co-defendants,

that confession cannot be admitted unless the confess-

ing defendant takes the stand. [See Bruton v. United

States, 391 U.S. 123, 126, 128–29, 88 S. Ct. 1620, 20 L.

Ed. 2d 476 (1968)] . . . The [United States Supreme]

Court concluded that, once the jury heard that one of

the defendants had confessed and had implicated one

or more co-defendants, the jurors simply could not be

trusted to obey an instruction that forbade them from

considering that confession when assessing the guilt of

the other defendants.

‘‘The implicit element approach to the corpus delicti

rule suffers from this same psychological difficulty.

Under this approach, if the trial judge rules that the

corpus delicti is satisfied, the jury would hear the defen-

dant’s confession, only to later be asked to set the

confession to one side and determine whether the gov-

ernment’s remaining evidence is sufficient to establish

the corpus delicti. One might doubt whether jurors,

having heard the defendant’s confession to a heinous

crime, could dispassionately discharge this duty.’’

(Internal quotation marks omitted.)

For these reasons, we conclude that Connecticut’s

corroboration rule is a rule of admissibility to be

decided by the court. A defendant who fails to challenge

the admissibility of the defendant’s confession at trial

is not entitled to raise the corroboration rule on appeal

because (1) the evidentiary claim is not of constitutional

magnitude and, thus, cannot meet Golding’s second

prong; see State v. Uretek, Inc., supra, 207 Conn. 713;

and (2) the rule does not implicate the sufficiency of

the state’s evidence.20 Accordingly, because the defen-

dant did not object to the admission of the confessions,

he is not entitled to raise the corroboration rule on

appeal, and, thus, the confessions are substantive evi-

dence that can be used in analyzing his sufficiency of

the evidence claims.

We turn, then, to the defendant’s claim that the evi-

dence was insufficient to prove beyond a reasonable

doubt that A.P. is dead. We begin our analysis by setting

forth the traditional standard of review applicable to a

sufficiency of the evidence claim. It is well settled that a

defendant who ‘‘asserts an insufficiency of the evidence

claim bears an arduous burden.’’ (Internal quotation

marks omitted.) State v. Rodriguez, 146 Conn. App. 99,

110, 75 A.3d 798, cert. denied, 310 Conn. 948, 80 A.3d

906 (2013). ‘‘[F]or the purposes of sufficiency review

. . . we review the sufficiency of the evidence as the

case was tried . . . . [A] claim of insufficiency of the

evidence must be tested by reviewing no less than,

and no more than, the evidence introduced at trial.’’

(Internal quotation marks omitted.) State v. Nasheed,

121 Conn. App. 672, 682, 997 A.2d 623, cert. denied, 298

Conn. 902, 3 A.3d 73 (2010). ‘‘In reviewing a sufficiency

of the evidence claim, we apply a two part test. First,

we construe the evidence in the light most favorable

to sustaining the verdict. Second, we determine whether

upon the facts so construed and the inferences reason-

ably drawn therefrom the [jury] reasonably could have

concluded that the cumulative force of the evidence

established guilt beyond a reasonable doubt . . . .

This court cannot substitute its own judgment for that

of the jury if there is sufficient evidence to support

the jury’s verdict.’’ (Internal quotation marks omitted.)

State v. Allan, 311 Conn. 1, 25, 83 A.3d 326 (2014).

‘‘[T]he jury must find every element proven beyond

a reasonable doubt in order to find the defendant guilty

of the charged offense, [but] each of the basic and

inferred facts underlying those conclusions need not

be proved beyond a reasonable doubt. . . . If it is rea-

sonable and logical for the jury to conclude that a basic

fact or an inferred fact is true, the jury is permitted to

consider the fact proven and may consider it in combi-

nation with other proven facts in determining whether

the cumulative effect of all the evidence proves the

defendant guilty of all the elements of the crime charged

beyond a reasonable doubt. . . .

‘‘Moreover, it does not diminish the probative force

of the evidence that it consists, in whole or in part, of

evidence that is circumstantial rather than direct. . . .

It is not one fact . . . but the cumulative impact of

a multitude of facts which establishes guilt in a case

involving substantial circumstantial evidence. . . . In

evaluating evidence, the [jury] is not required to accept

as dispositive those inferences that are consistent with

the defendant’s innocence. . . . The [jury] may draw

whatever inferences from the evidence or facts estab-

lished by the evidence [that] it deems to be reasonable

and logical.’’ (Internal quotation marks omitted.) State

v. Papandrea, 302 Conn. 340, 348–49, 26 A.3d 75 (2011).

Finally, on appeal, we do not ‘‘ask whether there is

a reasonable view of the evidence that would support

a reasonable hypothesis of innocence. We ask, instead,

whether there is a reasonable view of the evidence that

supports the jury’s verdict of guilty.’’ (Internal quotation

marks omitted.) State v. Stephen J. R., 309 Conn. 586,

594, 72 A.3d 379 (2013).

In this case, there is ample evidence from which

the jury reasonably could have concluded beyond a

reasonable doubt that A.P. is dead. First, the defendant

admitted to Allain on the day following her disappear-

ance that he had choked A.P. to death and disposed of

her corpse in a body of water. This admission, for the

reasons discussed previously in this opinion, may be

used as substantive evidence that she is dead. Similarly,

the defendant told Douton, a fellow inmate, that ‘‘she

was in the river’’ and that ‘‘they would never convict

him because they would never find [her] body.’’ The

defendant also told his cellmate, Ching, about a teenage

girl whom he had raped and killed on his boat before

disposing of her body by hiding it in a well and later

dumping it in Long Island Sound. In the same vein,

but on a different occasion, he told another inmate,

Buckingham, that he had accidently choked a young

girl to death while having sex with her and ‘‘disposed

of her off of a boat that he had or had access to out

in the Sound.’’ Although these confessions certainly

differed from one another in certain respects, the core

facts admitted in them were the same: that he killed

A.P. by choking her, then disposed of her remains in a

body of water.

Additionally, there is evidence independent of the

defendant’s confessions from which the jury could infer

that A.P. is dead. For example, A.P. disappeared during

the evening hours from her house never to be seen

again despite a nationwide search for her. She had been

missing for more than thirteen years at the time of the

defendant’s trial. She left home that evening without

taking money, clothes, or other personal belongings.

She was fifteen years old at the time, and the jury

could infer from her age and from other evidence of

her mental state and maturity that she lacked the intel-

lectual ability and life skills that would equip her with

the necessary resources to live elsewhere, undiscov-

ered by law enforcement and her family. See People v.

Ruiz, 44 Cal. 3d 589, 610–11, 749 P.2d 854, 244 Cal.

Rptr. 200 (although victim’s body never found, ample

circumstantial evidence of her death by foul play

included her abrupt disappearance, her failure to con-

tact friends and relatives, and her abandonment of per-

sonal effects), cert. denied, 488 U.S. 871, 109 S. Ct. 186,

102 L. Ed. 2d 155 (1988).

Moreover, on the basis of the eyewitness testimony

of Allain, the jury reasonably could have concluded

that, on the night of her disappearance, the defendant

sexually assaulted A.P. in his truck and could have

inferred that the defendant, who then had a motive to

kill her to avoid criminal liability for the sexual assault,

also had the opportunity to kill her as the last person

to be seen with her when she was alive.

The jury was also free to credit Allain’s testimony

that the defendant had stated to him while A.P. was

still in his truck and before he sexually assaulted her

that he was planning to kill her when he stated that he

‘‘wanted to do her’’ and that ‘‘we need a body.’’21 This

evidence may be used as substantive evidence that the

defendant followed through on his plan. ‘‘[A] declara-

tion indicating a present intention to do a particular

act in the immediate future, made in apparent good

faith and not for self-serving purposes, is admissible to

prove that the act was in fact performed.’’ (Internal

quotation marks omitted.) State v. Farnum, 275 Conn.

26, 35, 878 A.2d 1095 (2005); Conn. Code Evid. § 8-3 (4).

Finally, the jury reasonably could have inferred that

the defendant choked A.P. to death because approxi-

mately six months prior to A.P.’s disappearance, the

defendant choked another girl, thirteen year old K.S.,

into unconsciousness during a violent sexual assault.

See State v. DeJesus, 288 Conn. 418, 473, 953 A.2d 45

(2008) (evidence of prior sexual misconduct admissible

to establish defendant’s ‘‘propensity or a tendency to

engage in the type of aberrant and compulsive criminal

sexual behavior with which he or she is charged’’); see

also State v. Smith, 313 Conn. 325, 331–43, 96 A.3d

1238 (2014) (prior misconduct evidence that defendant

sexually assaulted and choked third party admissible

to demonstrate he choked and murdered victim during

commission of sexual assault).22

The defendant argues in his brief that there was some

evidence before the jury that A.P. was still alive. In

particular, the defendant points to a sworn statement,

admitted at trial, given to the police by James Butler,

a former Marine and a friend of A.P. and her family. In

his statement, Butler claimed to have seen and spoken

with A.P. in Virginia Beach, Virginia, after her disappear-

ance. Butler was not called to testify at trial, however,

and the police were unable to verify any of the details

he supplied as to his claimed encounter with A.P. In

any event, the jury certainly was free to disbelieve this

evidence because it was largely dependent on hearsay

and unsupported by any other evidence. In reviewing

a sufficiency of the evidence claim, ‘‘we do not ask

whether there is a reasonable view of the evidence that

would support a reasonable hypothesis of innocence.

We ask, instead, whether there is a reasonable view

of the evidence that supports the [trier’s judgment] of

guilty.’’ (Internal quotation marks omitted.) State v.

Brown, 90 Conn. App. 835, 839, 879 A.2d 466, cert.

denied, 276 Conn. 901, 884 A.2d 1026 (2005).

In light of all of the evidence, including all of the

reasonable inferences to be drawn therefrom, the fact

that law enforcement failed to find her body or discover

other forensic evidence that she is dead did not require

the jury to conclude that the state failed to meet its

burden to prove that A.P. is dead. See, e.g., State v.

Estrella, 277 Conn. 458, 465, 893 A.2d 348 (2006)

(upholding conviction despite lack of body and any

physical or forensic evidence of death); see also annot.,

65 A.L.R.6th 359, 371, § 2 (2011) (‘‘it has long been

established and is almost universally recognized that

the existence of a body is not necessary for a homicide

conviction to be sustained’’).

Moreover, even if the defendant is entitled to rely on

the corroboration rule as part of our review of the

sufficiency of the evidence, we would still conclude

that independent evidence substantially corroborates

the trustworthiness of his confessions.23 As noted pre-

viously, under Opper and its progeny, the corroboration

evidence (1) may be circumstantial, (2) need not rise

to the level of proof beyond a reasonable doubt, and

(3) need not independently establish the death of A.P.

See State v. Harris, supra, 215 Conn. 194–95. The evi-

dence previously discussed substantially corroborates

the trustworthiness of the defendant’s confessions that

he acted in accordance with his intention to kill A.P.,

as expressed to Allain. There is direct eyewitness testi-

mony that he sexually assaulted A.P. on the night of

her disappearance. He had a motive to kill her. The

behavior to which he confessed, i.e., having sex with

and choking a young lady victim under sixteen years

of age, is consistent with his behavior in doing the

same to K.S. All of this evidence leads to the inevitable

conclusion that there was sufficient evidence from

which the jury reasonably could have concluded that

there was substantial evidence to corroborate the trust-

worthiness of the defendant’s confessions.

Finally, even if footnote 23 in Hafford required the

state to offer substantial evidence of A.P.’s death that

is totally independent of the defendant’s confessions,

we would still conclude that the state has met this

burden. On the basis of the conduct and statements of

the defendant during the evening hours of May 29, 1996,

and the other circumstances regarding A.P.’s abrupt

disappearance, all of which was supported by testimony

and facts independent from his confessions, there was

substantial circumstantial evidence from which the jury

could conclude that A.P. is dead. Under any version of

the corroboration rule, this evidence alone need not

establish the death of the victim beyond a reasonable

doubt, provided that this evidence and the defendant’s

confessions together constitute sufficient evidence

from which the jury could find beyond a reasonable

doubt that A.P. is dead. We conclude that the state met

that burden.

B

We next turn to the defendant’s claim that the evi-

dence was insufficient to prove beyond a reasonable

doubt that the defendant intended to cause the death of

A.P. Specifically, the defendant argues that the evidence

was sufficient at best to demonstrate an accidental

homicide, but falls short of establishing intent to kill.

We disagree.

‘‘[T]he specific intent to kill is an essential element of

the crime of murder. To act intentionally, the defendant

must have had the conscious objective to cause the

death of the victim. . . . Because direct evidence of the

accused’s state of mind is rarely available . . . intent is

often inferred from conduct . . . and from the cumula-

tive effect of the circumstantial evidence and the

rational inferences drawn therefrom. . . . Intent to

cause death may be inferred from . . . the events lead-

ing to and immediately following the death. . . . Fur-

thermore, it is a permissible, albeit not a necessary

or mandatory, inference that a defendant intended the

natural consequences of his voluntary conduct. . . . In

addition, intent to kill may be inferred from evidence

that the defendant had a motive to kill.’’ (Internal quota-

tion marks omitted.) State v. Otto, 305 Conn. 51, 66–67,

43 A.3d 629 (2012). We recognize that a jury may not

properly infer an intent to ‘‘commit murder from the

mere fact of the death of the victim, [or] even from her

death at the hands of the defendant.’’ State v. Crafts,

226 Conn. 237, 248, 627 A.2d 877 (1993).

The following evidence, and the reasonable infer-

ences to be drawn therefrom, was sufficient to demon-

strate beyond a reasonable doubt that the defendant

intended to cause A.P.’s death. First, although A.P.’s

body was never found, the defendant has repeatedly

admitted24 that he choked the victim. From this fact,

the jury could infer that he intended her death as a

natural consequence of that voluntary act. Although

such conduct may also be probative of a lesser mental

state, such as recklessness, it is not unreasonable to

infer that he intended A.P.’s death by choking her.

Second, the defendant expressed to Allain before

A.P.’s death that he intended to kill her. As previously

discussed, ‘‘[A] declaration indicating a present inten-

tion to do a particular act in the immediate future, made

in apparent good faith and not for self-serving purposes,

is admissible to prove that the act was in fact per-

formed.’’ (Internal quotation marks omitted.) State v.

Farnum, supra, 275 Conn. 35. This same principle is

relevant to whether the defendant committed that act

consistent with his stated contention.

Third, the defendant failed to obtain, or to try to

obtain, medical assistance for A.P. for the injuries he

caused to her. This failure supports an ‘‘antecedent

intent to cause death.’’ State v. Sivri, 231 Conn. 115,

129, 646 A.2d 169 (1994); see also State v. Francis, 228

Conn. 118, 128–29, 635 A.2d 762 (1993) (evidence that

defendant stabbed victim and immediately left scene

without rendering assistance was sufficient to infer

intent); State v. Greenfield, 228 Conn. 62, 78, 634 A.2d

879 (1993) (victim found ‘‘bloodied, unconscious, his

forehead visibly compressed, outside his blood-soaked

apartment’’ with ‘‘not the slightest evidence that the

defendant made any attempt to help the victim’’ was

sufficient evidence to infer intent).

Fourth, the defendant disposed of the victim’s body

so that it could not be located. Concealing a victim’s

corpse is ‘‘strong evidence of the defendant’s conscious-

ness of guilt,’’ and such evidence may be considered

‘‘as part of the evidence from which a jury may draw

an inference of an intent to kill.’’ State v. Sivri, supra,

231 Conn. 130 (defendant took extraordinarily success-

ful measures to hide victim’s body).

Finally, the state presented strong evidence of the

defendant’s motive to kill the victim, namely, that the

defendant had sexually assaulted A.P. and, therefore,

had an interest in ensuring that she could never testify

against him.25 From this evidence, the jury reasonably

could have inferred that the defendant had a motive to

kill the victim, which the jury could have considered

when evaluating the defendant’s intent. ‘‘Although

motive is not an element of the crime of murder that

the state must prove beyond a reasonable doubt . . .

an intent to kill may be inferred from evidence that the

defendant had motive to kill.’’ (Internal quotation marks

omitted.) State v. Otto, supra, 305 Conn. 73–74.

In the present case, the defendant’s intent, as an

element of the crime of murder, was proven beyond

a reasonable doubt by the cumulative impact of the

evidence and the rational inferences permissibly drawn

therefrom. Accordingly, the defendant cannot prevail

on this claim.

C

The defendant also claims, with respect to the crime

of capital felony in violation of § 53a-54b (7), that the

evidence was insufficient to prove beyond a reasonable

doubt that A.P. was murdered in the course of the

commission of a sexual assault. The defendant’s entire

argument with respect to this claim is contained in one

paragraph of his principal brief and is premised on his

contention that the only evidence that he murdered A.P.

in the course of the commission of a sexual assault

came from informants and was supported by no other

evidence of a sexual assault.26 We reject this claim for

several reasons.

First, as we have concluded in part I A of this opinion,

the defendant did not object to the admission of his

confessions and is not entitled to Golding review that

the confessions were improperly admitted. Moreover,

even if the defendant was entitled to raise the corrobo-

ration rule on appeal, we have already concluded that

the trustworthiness of his confessions was sufficiently

corroborated. Finally, the defendant does not contend

that the confessions (if properly admitted) and other

evidence in the case were insufficient to prove this

capital felony count beyond a reasonable doubt.

Accordingly, we are not persuaded by the defendant’s

claim that the evidence was insufficient to prove that

the defendant committed murder in the commission of

a sexual assault.

D

The defendant next claims that the evidence was

insufficient to prove that he is guilty of capital felony

in violation of § 53a-54b (5), as alleged in count one of

the information, because the state failed to demonstrate

beyond a reasonable doubt that he murdered A.P. dur-

ing the course of a kidnapping or before she was able

to return to safety.27 We disagree.

General Statutes (Rev. to 1995) § 53a-54b (5), as

amended by Public Act 95-16, § 4, defines the capital

offense of kidnap-murder as ‘‘murder by a kidnapper

of a kidnapped person during the course of the kidnap-

ping or before such person is able to return or be

returned to safety . . . .’’ In State v. Salamon, 287

Conn. 509, 542, 949 A.2d 1092 (2008), our Supreme Court

‘‘reconsidered its prior interpretation and construction

of the kidnapping statutes and concluded that [o]ur

legislature . . . intended to exclude from the scope of

the more serious crime of kidnapping and its accompa-

nying severe penalties those confinements or move-

ments of a victim that are merely incidental to and

necessary for the commission of another crime against

that victim. Stated otherwise, to commit a kidnapping

in conjunction with another crime, a defendant must

intend to prevent the victim’s liberation for a longer

period of time or to a greater degree than that which

is necessary to commit the other crime.

‘‘Although [the] holding in Salamon constituted a

significant change with respect to our interpretation

of the kidnapping statutes, we emphasized that [o]ur

holding does not represent a complete refutation of the

principles established by our prior kidnapping jurispru-

dence. First, in order to establish a kidnapping, the

state is not required to establish any minimum period

of confinement or degree of movement. When that con-

finement or movement is merely incidental to the com-

mission of another crime, however, the confinement or

movement must have exceeded that which was neces-

sary to commit the other crime. [T]he guiding principle

is whether the [confinement or movement] was so much

the part of another substantive crime that the substan-

tive crime could not have been committed without such

acts . . . . In other words, the test . . . to determine

whether [the] confinements or movements involved

[were] such that kidnapping may also be charged and

prosecuted when an offense separate from kidnapping

has occurred asks whether the confinement, movement,

or detention was merely incidental to the accompanying

felony or whether it was significant enough, in and of

itself, to warrant independent prosecution.’’ (Internal

quotation marks omitted.) State v. O’Brien-Veader, 318

Conn. 514, 557–59, 122 A.3d 555 (2015).

In the present case, the defendant’s admissions to

Allain regarding his conduct on May 29, 1996, toward

A.P. after Allain exited the defendant’s vehicle and the

defendant drove away with A.P. were sufficient to estab-

lish beyond a reasonable doubt that the defendant mur-

dered A.P. during the course of a kidnapping or before

she was able to return to safety. The defendant con-

fessed to Allain that he pretended to run out of gas,

and that A.P. was ‘‘freaking out, saying she had to go

home.’’ The defendant stated to Allain that he then

dragged A.P. into the woods, ‘‘made her run with him’’

and choked her because she was ‘‘freaking out.’’

According to Allain, the defendant also admitted that

he tied A.P. to a tree.

On the basis of the defendant’s admissions and the

reasonable inferences that they support, we conclude

that the evidence was sufficient to demonstrate that

the defendant’s movement and confinement of A.P. was

not merely incidental to the crime of murder because

he engaged in conduct beyond that necessary to choke

the victim to death. Specifically, in a series of events,

the defendant prevented A.P. from returning to safety

and dragged her by force into the woods and tied her

to a tree. The jury was free to infer that these events

were protracted and occurred along a series of indepen-

dent locations. See State v. Ward, 306 Conn. 718, 736–39,

51 A.3d 970 (2012) (sufficient evidence of kidnapping

where defendant dragged victim from kitchen to bed-

room and moved her from bed to floor for sexual assault

because that act made victim’s ‘‘possibility of escape

even more remote,’’ and sexual assault was brief part

of entire fifteen minute encounter); State v. Salamon,

supra, 287 Conn. 549–50 (sufficient evidence of kidnap-

ping because, in addition to assaultive acts, defendant

subdued victim and held her down for at least five

minutes). Accordingly, we conclude that the jury’s ver-

dict that the defendant committed a kidnapping was

supported by sufficient evidence.

II

EXCLUSION OF VIDEOTAPE OF INTERVIEW

We next turn to the defendant’s claim that the court

improperly excluded from evidence a videotape of an

interview that the police conducted of Allain immedi-

ately prior to his taking a polygraph examination (pre-

test interview). The defendant argues that the court

abused its discretion by excluding the videotape of the

pretest interview because the videotape contained rele-

vant evidence of Allain’s bias and motive for testifying

for the state.28 The state argues that the pretest interview

was an inseverable component of the polygraph exami-

nation, and, therefore, the court properly excluded the

videotape in accordance with our Supreme Court’s

holding in State v. Porter, 241 Conn. 57, 698 A.2d 739

(1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct.

1384, 140 L. Ed. 2d 645 (1998), in which the court,

inter alia, reaffirmed Connecticut’s per se ban on the

admissibility of ‘‘polygraph evidence.’’ We disagree that

the videotape of the pretest interview is ‘‘polygraph

evidence,’’ as that term was used by the court in Porter,

and we agree with the defendant that, by excluding

the tape on that basis, the court improperly excluded

relevant evidence of bias. We further conclude, contrary

to the state’s position, that because the evidentiary error

pertained to the veracity of a crucial state’s witness, it

was harmful and, therefore, constituted reversible

error.

The following additional facts, as established by the

record and procedural history, are relevant to the defen-

dant’s claim. In August, 2004, Allain, who already had

provided the police with a written statement implicating

the defendant in the murder of A.P., made himself avail-

able for a polygraph examination conducted by the state

police. Immediately prior to the administration of the

polygraph examination, Allain was subjected to an

approximately ninety minute pretest interview that was

conducted by the polygraph examiner, state police

Trooper Tim Madden. Allain was alone with Madden

for the majority of the pretest interview, although, at

one point, officers who had taken Allain’s earlier written

statement were brought in to allow Allain to amend

that statement. Although Madden informed Allain of his

right to have counsel available, Allain never requested

access to a lawyer.29 The pretest interview was video-

taped, as was the polygraph examination itself.30

At the outset of the interview, Allain repeatedly made

clear that he was motivated to take the test because

he recently had been charged with violating his proba-

tion and had a suspended period of incarceration hang-

ing over his head. Allain told Madden that his probation

officer was ‘‘pushing toward violating me if I don’t take

[the polygraph test].’’ Although Madden attempted to

persuade Allain that there were other and perhaps bet-

ter reasons why he should take the test, the videotape

of the interview plainly demonstrates the pressure

Allain felt to take the test.

During the pretest interview, Madden stressed to

Allain several times that the police wanted Allain ‘‘on

their team.’’ He suggested to Allain that the goal of

the polygraph was to help Allain give a truthful and

consistent statement at trial so that they could ‘‘get’’

the defendant, whom Madden described as the ‘‘big

fish.’’ Madden said he wanted Allain to pass the poly-

graph test because it would ensure that he would be a

more reliable witness for the state against the defen-

dant. Madden reviewed Allain’s prior sworn statement

with Allain in detail, and several times expressed his

desire that Allain ‘‘confirm’’ his prior statement. On

more than one occasion, Madden stopped to point out

weak spots in Allain’s narrative and arguably attempted

to shape Allain’s future testimony by suggesting ways

in which his statement could be amended to make it

more believable.

Madden also repeatedly indicated that it was in

Allain’s best interest to cooperate with the state, and

made clear to Allain that if he failed to cooperate fully,

he risked being charged in this matter, something that

Allain thus far had avoided. Several times during the

pretest interview, Madden offered Allain assurances

that even if he were to admit to more substantial

involvement in A.P.’s disappearance and murder than

previously disclosed, things would go better for Allain

if he cooperated fully with the state. To illustrate this

point, on at least six different occasions during the

pretest interview, Madden and the officers who took

his amended statement told Allain about the well-publi-

cized Maryann Measles case, in which a number of

persons had been implicated in the horrific rape and

murder of a teenage girl in Litchfield County.31 As it

was explained to Allain, one of the participants in the

Measles murder (Maggie Bennett), who had cooperated

fully with the state, had ‘‘gotten off lightly,’’ and received

a ‘‘slap on the wrist,’’ whereas those who had lied or

had been uncooperative with the police and prosecutors

received harsh punishments.

The defendant contends, on the basis of a report

disclosed to the defense by the state, that Allain failed

the polygraph examination. Although the state con-

ceded that the report contained a preliminary conclu-

sion that some of Allain’s answers were consistent with

deception, the state argued that it would have had to

conduct additional testing to determine whether Allain

actually failed the polygraph test. There is no evidence

that the state performed such testing despite the offi-

cers’ representations to Allain that the test would defini-

tively determine if he was telling the truth, and thus he

must take and pass it before he would be permitted to

testify and become eligible for favorable treatment in

connection with A.P.’s rape, disappearance, and death.

Prior to trial, the state filed a motion in limine seeking

to exclude all testimony or evidence pertaining to the

polygraph examinations of any witnesses. The court

first took up the motion in limine at a hearing on Febru-

ary 8, 2010. At that time, defense counsel indicated his

opposition to the motion, stating that it was his inten-

tion to have the videotape of Allain’s pretest interview

admitted into evidence along with the results of the

polygraph test. With respect to the videotape of the

pretest interview, the defendant stated that he would

seek to offer it on the ground that it showed Madden

giving Allain numerous assurances that Allain would

receive favorable treatment if he cooperated,32 which

defense counsel argued ‘‘raises questions in my mind

about whether this young man is coming into this court-

room with the intention to do anything other than save

himself.’’ With respect to the polygraph results, defense

counsel argued that Allain had failed the polygraph with

respect to questions about whether he had killed A.P.

or seen her body after she was dead, and the defendant

sought to offer those results not for their truth but for

the limited purpose of showing Allain’s motivation to

fabricate or tailor his trial testimony in order to curry

favor from the state. According to defense counsel,

because Allain failed the polygraph, he likely was moti-

vated more than ever to convince the state that the

defendant was the sole guilty party and that he had

nothing to do with A.P.’s murder. Defense counsel

stated to the court: ‘‘I understand the general rule

against the admissibility of polygraph exams and would

contend that if the finder of fact were made available

of the results, it do so with a limiting instruction that

[Allain’s] credibility is for them to determine.’’

The state took the position that none of the evidence

that the defense sought to present to the jury regarding

the polygraph examination was admissible under appli-

cable law as set forth in State v. Porter, supra, 241

Conn. 57. The state argued that, as with any witness,

the defendant could question Allain about whether his

testimony was the result of coercion or assurances from

the state. The state also argued that the defendant could

call Madden to testify. The state nonetheless agreed

with the defendant that the court needed to review the

pretest videotape prior to ruling on the motion in limine.

The court agreed and passed on ruling on the motion

until after it had viewed the videotapes.

On February 11, 2010, the day that Allain was sched-

uled to testify, the court returned to the issue of the

polygraph examination and the videotape evidence,

having had an opportunity to review the videotapes of

the pretest and the examination itself. The court heard

additional arguments from the defense and the state,

each of which essentially reasserted the arguments

made at the prior hearing. The state’s position remained

that the videotape of the pretest interview, like the

polygraph results themselves, was ‘‘polygraph evi-

dence’’ as that term was used by our Supreme Court

in Porter in reaffirming ‘‘our per se rule against the use

of polygraph evidence in Connecticut courts.’’ State v.

Porter, supra, 241 Conn. 115. The defense countered

that, at least with respect to the admission of the video-

tape of the pretest, this did not present a Porter issue

because the Porter holding was limited to the scientific

reliability and admissibility of polygraph results, and

because the court in Porter never considered or

addressed whether the existing bar should extend to

any reference to the term polygraph or to other types

of evidence related to the administration of poly-

graph tests.

In an oral ruling following argument, the court

refused to admit the videotape as evidence at trial.

The trial court appears to have agreed with the state’s

position that the videotape constituted inadmissible

polygraph evidence, reasoning as follows: ‘‘Well, I guess

in part it depends on how you define the phrase poly-

graph evidence, but Porter does indicate and I quote

that: Polygraph evidence should remain per se inadmis-

sible in all trial court proceedings in which the rules of

evidence apply, and for all trial purposes, in Connecticut

courts. [See id., 94.]

‘‘There’s specific reference in footnote 37 [of Porter]

which addresses the issue of using a polygraph. I’ll

quote from the footnote: Some jurisdictions that bar

the admission of polygraph evidence for the substantive

truth of the matter asserted do allow it to corroborate

or impeach a witness’ testimony. We see no reason for

this distinction. [See id., 94 n.37.]

‘‘So, I’m going to prohibit the use of the reference

to polygraph. But as the state has indicated, there’s

certainly no prohibition against . . . asking the wit-

ness questions on cross-examination that would get to

any promises or benefits that were made to him during

the course of that interview.’’ (Citations added; empha-

sis added.) We construe the court’s ruling as barring

any use of the videotape by the defendant and preclud-

ing him from mentioning the term ‘‘polygraph’’ for

any purpose.33

It is axiomatic that ‘‘[w]e review the trial court’s deci-

sion to admit [or to exclude] evidence, if premised on

a correct view of the law . . . for an abuse of discre-

tion.’’ State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633

(2007). Section 6-5 of the Connecticut Code of Evidence

provides: ‘‘The credibility of a witness may be

impeached by evidence showing bias for, prejudice

against, or interest in any person or matter that might

cause the person to testify falsely.’’ As indicated in

the official commentary to § 6-5, ‘‘[b]ecause evidence

tending to show a witness’ bias, prejudice or interest

is never collateral . . . impeachment of a witness on

these matters may be accomplished through the intro-

duction of extrinsic evidence, in addition to examining

the witness directly. . . . The scope and extent of

proof through the use of extrinsic evidence is subject

to the court’s discretion . . . .’’ (Citations omitted.)

See State v. Colton, 227 Conn. 231, 248, 630 A.2d 577

(1993) (‘‘Evidence tending to show the motive, bias or

interest of an important witness is never collateral or

irrelevant. It may be . . . the very key to an intelligent

appraisal of the testimony of the [witness].’’ [Internal

quotation marks omitted.]).

The defendant claims that the court’s decision to

exclude the videotape of the pretest interview was

premised, not on the court’s independent assessment

as to the probative value of the videotape as evidence

of bias weighed against its prejudicial impact, but on

an incorrect view of the law, namely, a misunder-

standing or misinterpretation of our Supreme Court’s

holding in State v. Porter, supra, 241 Conn. 57. Whether

the trial court’s decision was mandated by Porter pre-

sents a question of law over which our review is plenary.

See State v. Foster, 293 Conn. 327, 334, 977 A.2d 199

(2009).

In Porter, our Supreme Court considered whether

Connecticut should adopt the standard announced by

the United States Supreme Court in Daubert34 for evalu-

ating the admissibility of scientific evidence, and

‘‘whether Connecticut should abandon its traditional

per se rule that polygraph evidence is inadmissible at

trial’’; State v. Porter, supra, 241 Conn. 58; which the

defendant in Porter argued was inconsistent with the

Daubert standard. Id., 93. After an extensive discussion,

the court adopted the Daubert standard.

The court then turned to the polygraph issue. For

purposes of its analysis, the court assumed without

deciding that ‘‘polygraph evidence’’ would satisfy the

admissibility threshold established by Daubert, ulti-

mately concluding, however, that the prejudicial impact

of ‘‘polygraph evidence’’ greatly exceeds its probative

value. On the basis of that conclusion, the court reaf-

firmed our per se rule against the admissibility of such

evidence ‘‘in all trial proceedings in which the rules of

evidence apply, and for all trial purposes.’’ Id.

We are unconvinced that the videotape of the pretest

interview falls within the scope of the exclusionary rule

discussed in Porter. Although the court in Porter used

the term ‘‘polygraph evidence’’ throughout the opinion,

a term that, at first blush, seems to be rather broad in

scope, it is easily gleaned from the decision that the

term was not intended to have an expansive meaning

or to encompass any and all evidence tangential to or

referring to a polygraph examination. First, as the court

indicated, the issue before it was whether to abandon

the existing rule regarding the inadmissibility of the

results of polygraph tests. The court gave no indication

that it was considering whether to expand the scope

of that exclusion, only whether the rule should be main-

tained in its present iteration. Second, in identifying the

rule at issue, the court clearly set forth the scope of

the rule as follows: ‘‘This court has repeatedly held

that neither the results of a polygraph test nor the

willingness of a witness to take such a test is admissible

in Connecticut courts.’’ (Emphasis added; internal quo-

tation marks omitted.) State v. Porter, supra, 241 Conn.

93; accord State v. Duntz, 223 Conn. 207, 238, 613 A.2d

224 (1992) (‘‘[d]ue to the questionable accuracy of the

results of polygraph examinations, this court has con-

sistently held that they are not admissible either for

substantive or impeachment purposes’’ [emphasis

added]); State v. Plourde, 208 Conn. 455, 471, 545 A.2d

1071 (1988) (‘‘evidence of the defendant’s willingness

to take a polygraph test, which the defendant proffered

to rehabilitate her credibility, was properly excluded

because of the almost complete lack of probative value

[of such consent] and because of its self-serving charac-

ter’’ [emphasis added; internal quotation marks omit-

ted]), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L.

Ed. 2d 979 (1989). Thus, because the existing rule under

consideration in Porter was a per se prohibition against

the use of polygraph results or evidence of a witness’

willingness to take a polygraph test—usually the defen-

dant—we construe the Porter court’s use of the term

‘‘polygraph evidence’’ as a shorthand reference to those

two specific types of evidence, which were the only

evidence associated with the rule of admissibility

under review.

We are aware of no other appellate decision in which

our courts have been asked to directly address whether

a videotape of a pretest interview constitutes exclud-

able polygraph evidence. However, we note that in State

v. Davis, 135 Conn. App. 385, 42 A.3d 446, cert. denied,

305 Conn. 916, 46 A.3d 171 (2012), this court was asked

to consider whether the trial court had properly denied

a defendant’s motion for a continuance prompted by the

state’s late disclosure of inculpatory statements made

during a polygraph pretest interview. In concluding that

the defense had not been unfairly surprised by the evi-

dence because the defendant was aware of the video-

tape of the pretest interview and had asked the state

about it prior to trial, this court rejected the defendant’s

argument that ‘‘he believed that the tape was unusable

as evidence,’’ noting: ‘‘there is no reason that the sub-

stance of the statements made by the defendant during

that interview would not have been admissible evidence

at trial.’’ Id., 401. This is consistent with our view that

the videotape of Allain’s pretest interview is not per se

excludable polygraph evidence under Porter.

In the present case, use of the videotape of the pretest

interview to demonstrate motive, bias, or interest would

not have revealed the results of Allain’s polygraph test

nor was it being offered as evidence of Allain’s willing-

ness to take a polygraph examination. The state never

advanced either ground in support of excluding the

videotape from evidence. The videotape of the pretest

interview was not ‘‘polygraph evidence’’ and, accord-

ingly, did not fall within the scope of the per se exclu-

sionary rule reaffirmed by the court in Porter.

Additionally, nothing in the Porter decision, or in any

other case law of which we are aware, countenances

the trial court’s decision to preclude all evidentiary

references to the term ‘‘polygraph’’ itself.35 It was not

necessary for the court to preclude from evidence the

mere fact that a polygraph examination had occurred.

As we have already stated, the court needed only to

guard against the admission of the results of a polygraph

examination or of the examinee’s willingness to take

such an examination as evidence at trial.36 Indeed, to

the extent that the court was concerned that the jury

would draw some impermissible inference from the

videotape of the pretest interview regarding Allain’s

willingness to take a polygraph examination, the court

could have given the jury a limiting instruction as to

the appropriate use of this evidence.

Instead of excluding the videotape outright as ‘‘poly-

graph evidence,’’ the court was obligated to exercise

its legal discretion in deciding whether to permit the

jury to view the videotape by evaluating its probative

value against its prejudicial effect, in the same manner

that it would have considered any other extrinsic evi-

dence offered for the purpose of establishing motive

and bias of a witness. Because the court’s ruling regard-

ing the admissibility of the videotape of the pretest

interview was not made on the basis of a correct view

of the law but on the court’s mistaken belief that the

videotape was inadmissible ‘‘polygraph evidence,’’ the

court improperly excluded the videotape.

Furthermore, upon consideration of the entire

record, we do not have a fair assurance that the exclu-

sion of the videotape of the pretest interview did not

substantially affect the verdict. The defendant has the

burden of establishing harm from any nonconstitutional

evidentiary error.37 State v. Gallo, 135 Conn. App. 438,

443, 41 A.3d 1183 (2012), appeal dismissed, 310 Conn.

602, 78 A.3d 854 (2013). ‘‘[A] nonconstitutional error is

harmless when an appellate court has a fair assurance

that the error did not substantially affect the verdict.

. . . [O]ur determination that the defendant was

harmed by the trial court’s [evidentiary rulings] is

guided by the various factors that we have articulated

as relevant [to] the inquiry of evidentiary harmlessness

. . . such as the importance of the [evidence] . . .

whether the [evidence] was cumulative, the presence

or absence of evidence corroborating or contradicting

the [evidence] on material points, the extent of cross-

examination otherwise permitted, and, of course, the

overall strength of the prosecution’s case.’’ (Internal

quotation marks omitted.) Id., 443–44.

The state argues that even if the court’s ruling was

improper, the defendant has not met his burden of

establishing harm because the court’s ruling could not

have substantially affected the verdict. According to

the state, the court only precluded the defendant from

making references to the polygraph test itself, and,

therefore, the defendant could, and did, question Allain

about any motivations, inducements, or promises made

to him prior to his testifying. The state also suggests

that its case against the defendant was strong. The state

contends that although the evidence of A.P.’s death was

largely circumstantial, it was overwhelming. The state

also asserts that ‘‘evidence of motive, means and oppor-

tunity was abundant,’’ and notes that the defendant

confessed to the murder to at least four different indi-

viduals. We disagree that the defendant has failed to

demonstrate harm under the circumstances of this case.

The videotape of the pretest interview was offered

for the limited and proper purpose of showing Allain’s

motivation for testifying in favor of the state against

the defendant. A court commits reversible error when-

ever it unduly restricts a defendant’s right to present

evidence that tends to show motive, interest, bias, or

prejudice on the part of a key government witness.

State v. Luzzi, 147 Conn. 40, 46, 156 A.2d 505 (1959);

see also State v. Colton, supra, 227 Conn. 250. The tape

shows Madden and other officers repeatedly trying to

convince Allain that it would be in his best interest to

testify favorably for the state, indicating that they

wanted him ‘‘on the team’’ and suggesting that if he

cooperated in getting a conviction of the defendant, he

would receive favorable treatment and likely escape

any criminal charges himself. Moreover, from the video-

taped interview, the jury would have had the opportu-

nity to more fully assess Allain’s mindset in agreeing

to testify against the defendant, including his significant

concerns regarding his fear of being charged with vio-

lating his probation. Additionally, the jury could reason-

ably conclude from the videotape that Madden

attempted to shape Allain’s story about the defendant’s

actions on May 29, 1996, in order to make it more

plausible.

It is undisputed that Allain’s trial testimony was an

integral component, if not the linchpin, of the state’s

case against the defendant. He was the only witness

with any direct knowledge of the events that led up to

A.P.’s disappearance and his testimony corroborated

the reliability of the defendant’s alleged jailhouse con-

fessions. Because the state’s case against the defendant

turned in large part on Allain’s testimony in order to

secure a conviction, the jury’s assessment of Allain’s

credibility was crucial. Accordingly, any evidence of

Allain’s bias and motivation to tailor his testimony in

favor of the prosecution’s case was critically important

to the defense, and the videotape of the pretest inter-

view was the most persuasive evidence available to

the defendant because it reveals Allain’s demeanor and

concerns in living color.

The state correctly notes that the defendant was not

precluded from raising during cross-examination the

fact that Allain had been interviewed by the police or

from exploring whether the state had offered Allain any

incentives to testify against the defendant or pressured

him to testify in a particular way. Our review of Allain’s

cross-examination shows that the defense challenged

Allain’s credibility by pointing out evidence tending to

demonstrate that Allain had changed or augmented

aspects of his story on a number of occasions. Cross-

examination highlighted a number of details that he

testified to on direct examination that he never dis-

closed in his prior written statements. The defense ques-

tioned Allain about his ‘‘interview’’ with Madden and,

without mentioning that it occurred prior to a polygraph

examination, noted the fact that the police believed he

was not telling the truth about his involvement in A.P.’s

murder, suggesting that Allain had incentive to cooper-

ate with the state and implicate the defendant in order

to keep the investigation away from him.

No cross-examination, however, could have substi-

tuted for or been as impactful as to Allain’s motive and

bias as the direct evidence afforded by the videotape.

Although the defendant was allowed to question Allain

regarding his ‘‘interview’’ with Madden, the defense was

precluded, among other things, from revealing the con-

text in which that interview occurred. That context was

significant. The videotape reveals that the law enforce-

ment officers used the context of the polygraph exami-

nation process to pressure Allain to inculpate the

defendant in the (lengthy) pretest interview in the fol-

lowing way. Madden emphasized to Allain that the poly-

graph examination would definitively determine

whether he was going to be part of the state’s ‘‘team’’

that would ‘‘get’’ the defendant, ‘‘the big fish’’ in the

case, and possibly receive a slap on the wrist himself,

or, conversely, whether he would be fully prosecuted

like the noncooperating witnesses in the Measles case.

In our view, the videotape tends to show, among other

things, the subtle but significant pressure placed on

Allain by law enforcement through the means of the

specific factual context in which the pretest interview

occurred. No amount of generic questioning of Allain

on cross-examination, without clarifying this important

context, would show the precise degree, nature, and

effect of both the inducements and pressure on Allain

to inculpate the defendant that the videotape reveals.

In other words, exclusion of the videotape and all refer-

ences to polygraph deprived the defense of its best

opportunity to show the degree of pressure, induce-

ments and manipulation exerted on Allain. We are con-

vinced that had the jury been given an opportunity

to view the pretest interview, the evidence may have

significantly altered how the jury assessed Allain’s testi-

mony as a whole, possibly raising reasonable doubt

about the guilt of the defendant. The defendant, there-

fore, is entitled to a new trial.

Our conclusion that a new trial is warranted because

the court improperly excluded evidence of bias is dis-

positive of the defendant’s appeal, thus eliminating the

need to address the remainder of the defendant’s evi-

dentiary claims. Nevertheless, because the defendant’s

claims that the court improperly admitted prior miscon-

duct evidence and improperly precluded the defendant

from presenting expert testimony concerning the relia-

bility of jailhouse informants are likely to arise again

on remand, we also address those claims. See State v.

Arroyo, 284 Conn. 597, 601 n.3, 935 A.2d 975 (2007).

III

ADMISSION OF PRIOR MISCONDUCT

The defendant claims that, on two occasions, the

court improperly admitted unduly prejudicial evidence

of prior misconduct. First, the defendant challenges

the court’s admission of testimony by K.S., a former

girlfriend of Allain, that the defendant choked and raped

her six months prior to the rape and murder of A.P.

Second, the defendant challenges the admission of testi-

mony by Ching that, during his time as the defendant’s

cellmate, the defendant asked Ching for his opinion

about whether the defendant should ‘‘do in’’ Allain. The

state responds that, in each instance, the court properly

admitted the challenged testimony under a recognized

exception to the general rule precluding evidence of a

defendant’s prior misconduct or on other grounds. See

Conn. Code Evid. § 4-5. For the reasons we will set

forth, we agree with the state that the court properly

admitted the challenged testimony.38

Before turning to a discussion of each of the defen-

dant’s claims, we set forth the legal principles and stan-

dard of review generally applicable to the admissibility

of evidence of prior misconduct. Section 4-5 of the

Connecticut Code of Evidence provides: ‘‘(a) Evidence

of other crimes, wrongs or acts of a person is inadmissi-

ble to prove the bad character, propensity, or criminal

tendencies of that person except as provided in subsec-

tion (b).

‘‘(b) Evidence of other sexual misconduct is admissi-

ble in a criminal case to establish that the defendant

had a tendency or a propensity to engage in aberrant and

compulsive sexual misconduct if: (1) the case involves

aberrant and compulsive sexual misconduct; (2) the

trial court finds that the evidence is relevant to a

charged offense in that the other sexual misconduct is

not too remote in time, was allegedly committed upon

a person similar to the alleged victim, and was otherwise

similar in nature and circumstances to the aberrant and

compulsive sexual misconduct at issue in the case; and

(3) the trial court finds that the probative value of the

evidence outweighs its prejudicial effect.

‘‘(c) Evidence of other crimes, wrongs or acts of

a person is admissible for purposes other than those

specified in subsection (a), such as to prove intent,

identity, malice, motive, common plan or scheme,

absence of mistake or accident, knowledge, a system

of criminal activity, or an element of the crime, or to

corroborate crucial prosecution testimony.

‘‘(d) In cases in which character or a trait of character

of a person in relation to a charge, claim or defense is

in issue, proof shall be made by evidence of specific

instances of the person’s conduct.’’

Under this rule, evidence of a defendant’s prior mis-

conduct generally is inadmissible to show that a defen-

dant committed the crime charged or to show that the

defendant is predisposed to commit that crime. Never-

theless, otherwise inadmissible prior misconduct evi-

dence may be admitted if it is offered, not for propensity

purposes, but ‘‘to prove intent, identity, malice, motive,

a system of criminal activity or the elements of a crime.’’

(Internal quotation marks omitted.) State v. Pena, 301

Conn. 669, 673, 22 A.3d 611 (2011).

Furthermore, our Supreme Court has explained that

courts must apply a more liberal standard of admissibil-

ity in cases involving the admission of prior sexual

misconduct. See State v. Smith, supra, 313 Conn. 334.

‘‘Under this standard, prior misconduct evidence may

be admitted to establish propensity in sex related cases

if certain conditions are met. . . . As we explained in

[State v. DeJesus, supra, 288 Conn. 470–74], evidence

of uncharged sexual misconduct is admissible only if

it is relevant to prove that the defendant had a propen-

sity or a tendency to engage in the type of aberrant and

compulsive criminal sexual behavior with which he or

she is charged. Relevancy is established by satisfying

the liberal standard pursuant to which evidence pre-

viously was admitted under the common scheme or

plan exception. Accordingly, evidence of uncharged

misconduct is relevant to prove that the defendant had a

propensity or a tendency to engage in the crime charged

only if it is: (1) . . . not too remote in time; (2) . . .

similar to the offense charged; and (3) . . . committed

upon persons similar to the prosecuting witness.’’

(Internal quotation marks omitted.) State v. Smith,

supra, 334–35. This ‘‘exception to the rule barring pro-

pensity evidence applies whenever the evidence estab-

lishes that both the prior misconduct and the offense

with which the defendant is charged were driven by an

aberrant sexual compulsion, regardless of whether the

prior misconduct or the conduct at issue resulted in

sexual offense charges.’’ (Emphasis added.) State v.

Snelgrove, 288 Conn. 742, 760, 954 A.2d 165 (2008).

‘‘[T]o minimize the risk of undue prejudice to the defen-

dant, the admission of evidence of uncharged sexual

misconduct under the limited propensity exception

. . . must be accompanied by an appropriate caution-

ary instruction to the jury.’’ State v. DeJesus, supra, 474.

‘‘The admission of evidence of prior uncharged mis-

conduct is a decision properly within the discretion of

the trial court. . . . [E]very reasonable presumption

should be given in favor of the trial court’s ruling. . . .

[T]he trial court’s decision will be reversed only where

abuse of discretion is manifest or where an injustice

appears to have been done. . . . [T]he burden to prove

the harmfulness of an improper evidentiary ruling is

borne by the defendant . . . [who] must show that it

is more probable than not that the erroneous action of

the court affected the result.’’ (Internal quotation marks

omitted.) State v. Heck, 128 Conn. App. 633, 638, 18

A.3d 673, cert. denied, 301 Conn. 935, 23 A.3d 728 (2011).

In deciding whether evidence of prior misconduct

falls within any of the exceptions to the general rule

prohibiting the admission of such evidence, we have

employed a two part analysis. See State v. Kalil, 314

Conn. 529, 540, 107 A.3d 343 (2014). ‘‘First, the evidence

must be relevant and material to at least one of the

circumstances encompassed by the exceptions. Sec-

ond, the probative value of such evidence must out-

weigh the prejudicial effect of the other crime

evidence.’’ (Internal quotation marks omitted.) Id.

‘‘[R]egardless of the nature or the purpose for which

evidence is being offered, this court has identified four

factors relevant to determining whether the admission

of otherwise probative evidence is unduly prejudicial.

These are: (1) where the facts offered may unduly

arouse the [jurors’] emotions, hostility or sympathy, (2)

where the proof and answering evidence it provokes

may create a side issue that will unduly distract the

jury from the main issues, (3) where the evidence

offered and the counterproof will consume an undue

amount of time, and (4) where the defendant, having no

reasonable ground to anticipate the evidence, is unfairly

surprised and unprepared to meet it.’’ (Internal quota-

tion marks omitted.) State v. Hill, 307 Conn. 689, 698,

59 A.3d 196 (2013). With those principles in mind, we

now turn to the specific claims raised by the defendant.

A

The defendant first claims that the court improperly

allowed K.S., a former girlfriend of Allain’s, to testify

that the defendant had choked and raped her in Novem-

ber, 1995. We disagree.

The following additional facts are relevant to this

aspect of the defendant’s claim. In November, 1995,

K.S. was thirteen years old and a girlfriend of Allain.

Allain introduced K.S. to the defendant. On November

26, 1995, at approximately 10 p.m., K.S. was picked up

by the defendant in his pickup truck. She went with the

defendant to his trailer, which was behind the homes of

the defendant’s parents, believing that Allain would join

them later. The defendant provided K.S. with beer and

whiskey, which she drank while she waited for Allain to

arrive. The defendant received a call on his cell phone,

which he told K.S. was from Allain, who could not leave

home to join them. K.S. asked to leave at that point,

but the defendant told her that she was not going any-

where. She tried to open the trailer door to leave, but

it was locked. At that point, the defendant pushed K.S.

over to his bed, where he choked and raped her. At

about 5 a.m. the defendant left the trailer to make a

phone call in his parents’ house, threatening K.S. that

he would hunt her down and kill her if she tried to

leave the trailer. After the defendant left, K.S., fearing

that this might be her only opportunity ‘‘to make it out

alive,’’ ran to the nearest home and called the police

and her father. The defendant later was arrested.

Prior to trial, the state filed a motion in limine giving

notice of its intent to call K.S. as a witness who would

testify about being raped by the defendant. The state

primarily argued that her testimony was admissible to

show a common plan or scheme, although the state also

argued that it was admissible to show motive, intent,

identity and to corroborate crucial prosecution testi-

mony. The defendant filed a written opposition to the

motion in limine arguing that the testimony was not

relevant to any exception to the general rule barring

the admission of prior misconduct evidence and, alter-

natively, that the evidence was far more prejudicial than

probative. Prior to ruling on the admissibility of K.S.’s

testimony, K.S. testified about the prior rape to the

court outside the presence of the jury. Following that

testimony, and after hearing additional oral argument,

the court ruled that K.S.’s testimony was admissible.

The court, citing State v. Snelgrove, supra, 288 Conn.

760, first determined that because the defendant was

charged with the capital felony of causing the death of

A.P. in the course of committing a sexual assault in the

first degree, this case properly was viewed as a sex

crime case despite the state’s not having charged the

defendant directly with a sexual assault. On the basis

of that determination, the court found that the more

liberal test set forth in State v. DeJesus, supra, 288

Conn. 418, applied to the admission of K.S.’s testimony.

Applying that test, the court found that evidence of the

defendant’s sexual assault of K.S. was relevant to the

defendant’s propensity to engage in aberrant and crimi-

nal sexual behavior because it was not too remote in

time, the incident was similar in many ways to the

sexual assault that led to A.P.’s murder, and it was

committed upon a similar person. The court also found

that the evidence was more probative than prejudicial.

On the basis of those findings, the court ruled that K.S.’s

testimony was admissible for propensity purposes and

instructed the jury that, if it believed the testimony, the

jury could consider it for ‘‘its bearing on any matter to

which [the jury found] it relevant, including, specifi-

cally, motive and whether the defendant acted under a

common scheme or plan.’’ After K.S. testified to the

jury about the 1995 incident, the court repeated its

limiting instruction.

On the basis of our review of the record, we conclude

that the court properly exercised its discretion in admit-

ting K.S.’s testimony. Our review is guided by subsec-

tion (b) of § 4-5 of the Connecticut Code of Evidence,

set forth previously, which codifies the exception, first

recognized in DeJesus, that evidence of prior sexual

misconduct may be admitted to show a defendant’s

propensity to engage in similar misconduct. Before per-

mitting K.S. to testify, the court made all necessary

determinations regarding each of the three elements

set forth in the rule necessary to admit evidence of

prior sexual misconduct for propensity purposes.

The first requirement of the rule pertains to the appli-

cability of the exception and requires that the court

determine whether the case in which the prior miscon-

duct evidence is offered ‘‘involves aberrant and compul-

sive sexual misconduct . . . .’’ Conn. Code Evid. § 4-

5 (b) (1). The court properly determined that such con-

duct was involved in the present case. As the trial court

indicated, that determination does not hinge on whether

the defendant was charged with a sexual assault in the

present case, but only on whether the prior misconduct

and the offense presently charged each were ‘‘driven

by an aberrant sexual compulsion, regardless of

whether the prior misconduct or the conduct at issue

resulted in sexual offense charges.’’ (Internal quotation

marks omitted.) State v. Johnson, 289 Conn. 437, 454,

958 A.2d 713 (2008), overruled in part on other grounds

by State v. Payne, 303 Conn. 538, 548, 34 A.3d 370

(2012); State v. Snelgrove, supra, 288 Conn. 760. In the

present case, the defendant, in furtherance of the capital

felony for which he was charged, was alleged to have

used a teenage boy to isolate a teenage girl and then

raped and choked her. Such behavior—followed by

threats of death in the case of K.S. and murder in the

case of A.P.—constituted aberrant and potentially com-

pulsive sexual misconduct sufficient to support the

court’s initial determination regarding the applicability

of the propensity exception in this case.

Second, the court was required to determine if K.S.’s

testimony about the prior sexual misconduct was rele-

vant to the offense currently charged. The relevancy

requirement is met if the prior sexual misconduct ‘‘is

not too remote in time, was allegedly committed upon

a person similar to the alleged victim, and was otherwise

similar in nature and circumstances to’’ the misconduct

in the present case. Conn. Code Evid. § 4-5 (b) (2). The

court properly found that each of these requirements

was met. The defendant’s rape of K.S. occurred just six

months prior to the sexual assault and murder of A.P.,

and, thus, clearly was not too remote in time. See State

v. Antonaras, 137 Conn. App. 703, 716, 49 A.3d 783, and

cases cited therein (holding even nine year and ten year

gaps not too remote in time), cert. denied, 307 Conn.

936, 56 A.3d 716 (2012). The court also properly deter-

mined that the sexual assaults were committed upon

similar persons on the basis of its findings that ‘‘these

were both very young girls—one, thirteen; one fifteen—

from the same town who both were girlfriends of

[Allain].’’ Last, the sexual assaults at issue were other-

wise sufficiently similar in nature and circumstances

for the reasons cited by the court, including that both

incidents involved Allain, who had arranged for the

young victims to meet the defendant, both incidents

occurred late at night, the defendant had provided alco-

hol to both victims, both victims were driven by the

defendant to a secluded location where they were both

sexually assaulted and choked by the defendant. See

State v. Smith, supra, 313 Conn. 337 (concluding trial

court properly determined charged crime and

uncharged misconduct sufficiently similar to satisfy

DeJesus exception because both acts involved sexual

assaults in which victim was choked by attacker).

Finally, the trial court properly considered whether

the probative value of K.S.’s testimony outweighed its

prejudicial effect before admitting K.S.’s testimony, and

provided the jury with a limiting instruction that was

based upon the instruction set forth in DeJesus, the

purpose of which was to limit any prejudicial effect.

State v. DeJesus, supra, 288 Conn. 474 and n.36. It is well

settled that ‘‘[t]he primary responsibility for conducting

the balancing test to determine whether the evidence

is more probative than prejudicial rests with the trial

court, and its conclusion will be disturbed only for a

manifest abuse of discretion. . . . [Thus, our] review

of such rulings is limited to the questions of whether

the trial court correctly applied the law and [whether

it] reasonably could have reached the conclusion that

it did.’’ (Citations omitted; internal quotation marks

omitted.) State v. James G., 268 Conn. 382, 396, 844

A.2d 810 (2004). Although the defendant claims that the

admission of K.S.’s testimony ‘‘created a very strong

likelihood that the jury’s emotions were unduly roused,’’

and that this prejudicial effect outweighed any proba-

tive value, we are unconvinced. Clearly, given the simi-

larities between the sexual assaults of K.S. and A.P.,

K.S.’s testimony was highly probative. In a case in which

the defendant is accused of brutally sexually assaulting

and murdering a young woman and disposing of her

body, it is unlikely that the addition of K.S.’s testimony

would have unduly roused the emotions or passions of

the jury further. Nor did the testimony consume an

unreasonable amount of time, raise any distracting side

issues, or surprise the defense. On the basis of our

review, we cannot say that the court abused its discre-

tion by admitting the testimony of K.S.

B

The defendant also contends that the court improp-

erly permitted Ching to testify that the defendant had

asked him his opinion on whether the defendant should

kill Allain. The state argued at trial that this was not

evidence of uncharged misconduct, and, therefore, was

not improperly admitted as such and argues on appeal

that the court properly admitted the testimony as rele-

vant evidence of the defendant’s consciousness of guilt.

We agree with the state on both points and, thus, reject

the defendant’s claim.

The following additional facts are relevant to this

claim. Ching testified at trial that he had shared a cell

with the defendant for two weeks at the Corrigan-Rad-

gowski Correctional Center in 2007. During that time,

the defendant told Ching that he and a younger man

had taken a fifteen year old girl out on his boat, gotten

her drunk, and raped her. Ching did not recall the defen-

dant giving him the name of either the girl or the young

man. Ching testified that the defendant had admitted

to killing the girl after she ‘‘started flipping out,’’ and

that ‘‘[t]he young man that was with him refused to

cooperate in helping with this’’ and ‘‘he killed her on

his own and hid the body.’’

When the state inquired during its direct examination

of Ching whether the defendant had talked to Ching

about the young man, Ching responded: ‘‘He asked my

opinion if I thought he should, you know, do the guy

in . . . .’’ After the state followed up by asking Ching

how he interpreted that inquiry, defense counsel

objected on relevancy grounds, arguing that although

what his client said to Ching was admissible, Ching’s

interpretation of what he said was not. The court over-

ruled the objection and counsel then asked to be heard

outside the presence of the jury. After the jury was

excused, defense counsel argued that although the state

had disclosed its intent to offer evidence about the

defendant’s prior sexual assault of K.S., it had never

disclosed that it intended to present evidence that the

defendant had discussed killing a witness. Defense

counsel moved for a mistrial, arguing that it was highly

prejudicial to have this information, which he described

as evidence of uncharged misconduct, blurted out to

the jury absent any prior notice to the defendant. The

state responded that it did not believe the information

disclosed was uncharged misconduct, and, therefore,

they had no obligation to disclose it. The state viewed

the testimony as part of the conversation between the

inmates and was not claiming that the defendant took

any affirmative steps to kill anyone or to make anyone

fear that they were going to be killed. The court took

a brief recess during which the court met with counsel

in chambers off the record.

Following that recess, the court indicated that the

parties had agreed to a further proffer regarding the

witness. In response to questions by the state, outside

the presence of the jury, Ching disclosed that he had

interpreted the defendant’s inquiry about ‘‘doing’’ the

young man as asking Ching’s opinion about whether he

should kill the young man who was with him on the

boat. Ching further disclosed that he had told the defen-

dant that, if he was in the defendant’s situation, he

would do so, and that this same conversation had been

repeated three or four times over the course of the two

weeks that Ching was housed with the defendant.

After hearing additional argument from both sides,

the court denied the defendant’s motion for a mistrial

and ruled that Ching’s testimony was admissible, treat-

ing it as prior misconduct evidence, but ruling that it

was nonetheless admissible because it was relevant to

corroborate crucial prosecution testimony and because

its probative value outweighed any prejudicial effect.

When the jury returned, the court gave a limiting

instruction in which it indicated that the state had

offered evidence of uncharged misconduct, that it was

admitted not to prove the defendant’s bad character or

tendency to commit criminal acts, but only to corrobo-

rate crucial prosecution testimony, and, that if the jury

believed the testimony, it was to consider the evidence

only for that purpose and not as evidence demonstrating

a propensity to commit the crimes charged. The exami-

nation of Ching continued. The state never asked any

additional questions regarding the defendant’s inquiries

about ‘‘doing in’’ Allain. Defense counsel revisited the

topic on cross-examination, getting Ching to admit that

he had never mentioned that aspect of his conversation

with the defendant in his prior statements to the police,

and that he had first brought the issue to the attention

of the state only a few weeks ago.

The defendant contends on appeal that Ching’s testi-

mony that the defendant had mused about whether

he should have Allain killed constituted evidence of

uncharged misconduct that was not previously dis-

closed to the defense, and that the court improperly

denied its motion for a mistrial claiming unfair surprise

and improper admission of the testimony for corrobora-

tive purposes. According to the defendant, nothing

about the challenged portion of Ching’s testimony cor-

roborated the state’s allegations that the defendant had

sexually assaulted, kidnapped, or killed A.P., and, even

assuming that Ching’s testimony was true, it tended to

show only that the defendant was angry at Allain for

falsely accusing him of murder.

At trial, in addition to arguing that Ching’s statement

was admissible for the purpose of corroborating crucial

prosecution testimony, the state argued, in the alterna-

tive, that the testimony did not constitute evidence of

misconduct. The court rejected that argument. In cham-

bers, the state also advanced the argument that Ching’s

statement was admissible as evidence of consciousness

of guilt. Although the state did not pursue that ground

in its arguments before the trial court, in its appellate

brief, the state urges us to conclude that Ching’s testi-

mony was relevant to show the defendant’s conscious-

ness of guilt and thus admissible on that alternate

ground.

Having reviewed the record and the arguments of the

parties, we conclude that the trial court incorrectly

labeled Ching’s testimony as uncharged misconduct

committed by the defendant. Ching’s statement indi-

cated only that the defendant had spoken to Ching about

the possibility of killing Allain. Although such thoughts

or ideations may certainly have reflected poorly upon

the defendant in the eyes of the jury, without more,

they do not constitute ‘‘a clear expression of prior mis-

conduct on the part of the defendant.’’ State v. Gilbert

I., 106 Conn. App. 793, 799, 944 A.2d 353 (vague refer-

ence to fact that defendant and babysitter ‘‘did some-

thing and Mom kicked [the babysitter] out’’ did not

constitute evidence of prior uncharged misconduct

[internal quotation marks omitted]), cert. denied, 287

Conn. 913, 950 A.2d 1289 (2008). Accordingly, there

is no merit to the defendant’s argument that Ching’s

statement was inadmissible evidence of prior mis-

conduct.

‘‘[W]e are mindful of our authority to affirm a judg-

ment of a trial court on a dispositive alternate ground

for which there is support in the trial court record.’’

(Internal quotation marks omitted.) State v. Vines, 71

Conn. App. 359, 366–67, 801 A.2d 918, cert. denied, 261

Conn. 939, 808 A.2d 1134 (2002). Having concluded that

Ching’s statement did not constitute evidence of

uncharged misconduct, we nevertheless agree with the

state that Ching’s statement constituted evidence of

consciousness of guilt and therefore was admissible on

that basis.

‘‘[E]vidence is admissible to prove consciousness of

guilt if, first, it is relevant, and second, its probative

value outweighs its prejudicial effect.’’ State v. Hill,

supra, 307 Conn. 698. ‘‘In a criminal trial, it is relevant

to show the conduct of an accused, as well as any

statement made by him subsequent to the alleged crimi-

nal act, which may fairly be inferred to have been influ-

enced by the criminal act. . . . The state of mind which

is characterized as guilty consciousness or conscious-

ness of guilt is strong evidence that the person is indeed

guilty . . . and, under proper safeguards . . . is

admissible evidence against an accused.’’ (Internal quo-

tation marks omitted.) State v. Camacho, 92 Conn. App.

271, 294, 884 A.2d 1038 (2005), cert. denied, 276 Conn.

935, 891 A.2d 1 (2006). ‘‘[T]he fact that ambiguities or

explanations may exist which tend to rebut an inference

of guilt does not render [such] evidence . . . inadmis-

sible but simply constitutes a factor for the jury’s con-

sideration. . . . The fact that the evidence might

support an innocent explanation as well as an inference

of a consciousness of guilt does not make [the admis-

sion of evidence of consciousness of guilt] erroneous.

. . . Moreover, [t]he court [is] not required to enumer-

ate all the possible innocent explanations offered by the

defendant.’’ (Internal quotation marks omitted.) State v.

Coccomo, 302 Conn. 664, 670, 31 A.3d 1012 (2011).

Here, the evidence was relevant because if the jury

believed Ching’s testimony that the defendant had

asked him for his opinion about whether to ‘‘do in’’

Allain, it reasonably could have inferred that the inquiry

was directly related to the charges pending against the

defendant and that the defendant did not want Allain

testifying against him. Threats by a defendant against

a witness generally are deemed admissible ‘‘either on

the theory that such conduct is inconsistent with the

defendant’s claim of innocence or on the theory that

the making of such threats evinces a consciousness of

guilt.’’ State v. Walker, 214 Conn. 122, 129, 571 A.2d

686 (1990). Although the defendant in the present case

stopped short of directly threatening a witness, a jury

nonetheless reasonably could have inferred that his

statement to Ching constituted circumstantial evidence

of his desire to keep his criminal activities from being

revealed and, thus, his consciousness of guilt. In addi-

tion to being relevant evidence, nothing in the record

before us leaves us with the impression that Ching’s

statement was so unduly prejudicial as to overcome its

probative value. The jury had already heard evidence

about the defendant’s violent nature. Ching’s statement

that the defendant had been thinking about killing Allain

was therefore unlikely to have unduly aroused the

jurors’ emotions. We accordingly reject the defendant’s

claim that Ching’s statement was improperly admitted.

IV

EXCLUSION OF EXPERT TESTIMONY

Finally, we turn to the defendant’s claim that the

court improperly excluded expert testimony regarding

the use and effect of informant testimony. According to

the defendant, because the case against him depended

heavily upon the testimony of jailhouse informants,

some if not all of whom benefited from cooperating

with the state, the court should have permitted him to

present expert testimony to the jury concerning the

general unreliability of such evidence. The defendant

contends that the information that he sought to present

is not within the knowledge of the average juror, nor

was it supplied to them through other evidence or by

the court’s instructions. The defendant claims that the

court not only abused its discretion by precluding the

expert testimony, but that it also violated his right to

due process, and his rights under the sixth amendment

to confront witnesses and to present a defense.

In response, the state argues that the court properly

excluded the expert testimony because the subject mat-

ter of the testimony was within the ken of the average

juror and because allowing the testimony would have

invaded the province of the jury, namely, its exclusive

function as trier of fact to assess the credibility of wit-

nesses. We agree with the defendant that the court

abused its discretion by precluding the expert testimony

offered by the defendant. We hold that expert testimony

concerning the reliability of informant testimony should

be admitted if the court on remand determines that

the expert is qualified and the proffered testimony is

relevant to the specific issues in the case.39

The following additional facts are relevant to our

resolution of this claim. The defense disclosed Alexan-

dra Natapoff, a professor at Loyola Law School, as a

witness who the defendant intended to call regarding

the general unreliability of informant testimony. The

state filed a motion in limine to exclude Natapoff’s

testimony, arguing that (1) the substance of the antici-

pated testimony concerned matters within the general

knowledge of jurors, and (2) the witness’ opinions

would invade the exclusive province of the jury to

assess the credibility of witnesses. The state also

argued, in essence, that Natapoff’s testimony was

unnecessary because the state anticipated that the court

would instruct the jury concerning testimony by jail-

house informants in accordance with our Supreme

Court’s mandate in State v. Arroyo, 292 Conn. 558, 569–

71, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130

S. Ct. 1296, 175 L. Ed. 2d 1086 (2010).

In Arroyo, our Supreme Court acknowledged the

growing recognition by the legal community that jail-

house informant testimony is inherently unreliable and

is a major contributor to wrongful convictions through-

out this country. Id., 567, 569. The Supreme Court noted:

‘‘In recent years, there have been a number of high

profile cases involving wrongful convictions based on

the false testimony of jailhouse informants. See, e.g., R.

Bloom, ‘Jailhouse Informants,’ 18 Crim. Just. 20 (Spring

2003). Several of these cases resulted in formal investi-

gations that shed much needed light on the extensive

use of jailhouse informants in criminal prosecutions,

an issue that previously had been ‘largely a closeted

aspect of the criminal justice system.’ Id. One such

investigation, by a grand jury in Los Angeles [C]ounty,

California, revealed an ‘appalling number of instances

of perjury or other falsifications to law enforcement

. . . .’ (Internal quotation marks omitted.) C. Sherrin,

‘Jailhouse Informants, Part I: Problems with their Use,’

40 Crim. L. Q. 106, 113 (1997). The grand jury also

‘found that a particularly clever informant realizes that

a successful performance on the witness stand is

enhanced if it appears he or she is not benefiting from

the testimony. . . . These informants wait until after

they’ve testified to request favors—a request that is

generally answered. . . . And, because the reward is

not offered before the testimony, the jury has no way

to measure the informant’s motivation to fabricate testi-

mony, as the prosecutor . . . is under no obligation to

disclose nonexisting exculpatory evidence.’ . . . R.

Bloom, supra, 18 Crim. Just. 24. Thus, the expectation

of a ‘[r]eward for testifying is a systemic reality’; id.;

even where the informant has not received an explicit

promise of a reward. In addition, 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.’’ (Footnotes omitted.) State v. Arroyo,

supra, 292 Conn. 567–69. In its discussion, the court

also recognizes Professor Natapoff’s expertise in this

area by citing to her research. Id., 568 n.8.

Accordingly, our Supreme Court mandated that,

going forward, trial courts in this state must give a

special credibility instruction to the jury any time infor-

mant testimony was used, regardless of whether the

informant had been promised any benefit for his or her

testimony. Id., 569. Specifically, the court indicated that

trial courts should instruct the jury ‘‘that the informant’s

testimony must be reviewed with particular scrutiny

and weighed . . . with greater care than the testimony

of an ordinary witness. . . . In addition, the trial court

may ask the jury to consider: the extent to which the

informant’s testimony is confirmed by other evidence;

the specificity of the testimony; the extent to which the

testimony contains details known only by the perpetra-

tor; the extent to which the details of the testimony

could be obtained from a source other than the defen-

dant; the informant’s criminal record; any benefits

received in exchange for the testimony; whether the

informant previously has provided reliable or unreliable

information; and the circumstances under which the

informant initially provided the information to the

police or the prosecutor, including whether the infor-

mant was responding to leading questions.’’ (Citation

omitted; internal quotation marks omitted.) Id., 570–71.

Prior to the court’s hearing argument on whether to

exclude Natapoff as a witness, Natapoff testified out-

side the presence of the jury. After testifying as to her

educational background and professional credentials,

which included authoring various scholarly works and

testifying before Congress on the subject of infor-

mants,40 Natapoff testified about the inherent problems

associated with the use of jailhouse informants.

According to Natapoff, the manner in which informants

are used in the criminal justice system is largely unregu-

lated and secretive, and the public has very little knowl-

edge about the process. She testified that jailhouse

informants are known to fabricate information because

they are aware that they can barter with the state for

favorable treatment on the basis of such information.

In particular, Natapoff stated: ‘‘We have evidence of

collusion between jailhouse informants in which infor-

mants cooperate in order to create stories that they

corroborate in order to persuade the government to

use that information. We know that sometimes infor-

mants and criminal offenders can be very entrepreneur-

ial about coming up with information, knowing that the

system will likely reward them in some way.’’ The hope

for favorable treatment also provides a strong incentive

for informants to search out any source of information,

reliable or not, so that they can trade that information

to the authorities.

Natapoff also testified about studies that demonstrate

that the usual cautionary instructions given to jurors

about informant testimony generally are not effective

and that even if jurors are made aware of and cautioned

about an informant’s compensation or other motivation

to fabricate testimony, jurors are ill-equipped to accu-

rately evaluate an informant’s credibility and often will

accept the testimony as true. One study published by

Northwestern Law School, discussed by Natapoff dur-

ing her testimony, indicated that approximately 45 per-

cent of all the wrongful capital convictions identified

in this country were the direct result of an informant

who was lying. According to Natapoff, informants’ sto-

ries are often difficult to corroborate or to contradict,

especially in cases in which the informant’s testimony

is the central evidence against the defendant.

On cross-examination, the state questioned Natapoff

about the fact that permitting experts to testify before

juries was not among the reforms Natapoff had pro-

posed in her book and asked Natapoff what information

she believed a jury could not be expected to have knowl-

edge of based upon common sense alone. Natapoff

responded as follows: ‘‘I think that a lay person on a jury

cannot know the extent of the benefits and expectations

that an informant in our system would reasonably

expect to get; that a promise or an understanding made

by a police officer or prosecutor to an informant, and

the history of the use of informants in our jails and

prisons give informants and law enforcement knowl-

edge about benefits that a lay person couldn’t under-

stand and wouldn’t see from the outside. . . . I think

a lay person would not expect or could not be expected

to understand how much effort informants sometimes

put into coming up with information from stealing files

from other inmates to calling outside sources and ask-

ing for resources from the newspapers and media from

outside sources. They couldn’t be expected to under-

stand the culture in jails; the understanding that this

entrepreneurial approach to information is expected.

A lay person on a jury could not be expected to know

how infrequent perjury prosecutions are for informants

who turn out to be lying. In polling jurors after trials

or after cases where a wrongful conviction is found,

you sometimes hear jurors say that they think that if

an informant lies, they’ll be prosecuted for perjury but

because that is so rare, that expectation is misguided,

although it’s a widely shared expectation, I think, among

the public.’’

At the conclusion of Natapoff’s testimony, the court

heard additional argument from the parties. The state

argued that making credibility determinations fell

within the exclusive province of the jury as fact finders

‘‘into which no expert may venture,’’ quoting this court’s

decision in State v. Favoccia, 119 Conn. App. 1, 29, 986

A.2d 1081 (2010), aff’d, 306 Conn. 770, 51 A.3d 1002

(2012). The state further argued that any concerns that

the defense sought to alleviate through Natapoff’s testi-

mony would be adequately covered by the instruction

mandated by our Supreme Court in Arroyo. The state

also made a direct analogy between the testimony that

the defense sought to elicit from Natapoff and expert

testimony concerning the reliability of eyewitness testi-

mony, which, at that time, the Supreme Court had held

may be properly excluded. See State v. McClendon, 248

Conn. 572, 586, 730 A.2d 1107 (1999) (holding average

juror aware of factors affecting reliability of eyewitness

identification and expert testimony on issue disfavored

because it would invade province of jury to determine

weight to give evidence), overruled in part by State v.

Guilbert, 306 Conn. 218, 253, 49 A.3d 705 (2012); State v.

Kemp, 199 Conn. 473, 477, 507 A.2d 1387 (1986) (same),

overruled in part by State v. Guilbert, 306 Conn. 218,

253, 49 A.3d 705 (2012).

The defense argued that Natapoff’s testimony would

impart uniquely insightful information to the jury and

would not invade the jury’s province to assess credibil-

ity because she would not offer an opinion about the

credibility of any particular witness. Natapoff’s testi-

mony would provide only background information and

would describe and put into context the rather opaque

circumstances surrounding the development and use

of jailhouse informants. Further, the defense disagreed

that an Arroyo instruction offered all of the same infor-

mation, particularly in light of the studies showing that

such instructions had no appreciable difference on

jurors. Finally, the defense noted that Natapoff’s testi-

mony was especially relevant in the present case

because the state’s case was built largely on the testi-

mony of informants.

After taking a short recess, the court rendered the

following oral ruling: ‘‘It is the court’s ruling that the

proffered expert testimony of Professor Natapoff would

indeed invade the very core function of the jury; that

is, to assess the credibility of the witnesses, and so I

am going to sustain the state’s objection to her testi-

mony. The court did have an opportunity to review the

recent Favoccia case . . . which confirms that credi-

bility determinations are within the exclusive province

of the fact finder. The subject matter about which Pro-

fessor Natapoff would testify is not, in the court’s view,

outside the common experience, ken, or common

knowledge of the jury; the court cites [State v. McClen-

don, supra, 248 Conn. 586]. Although Professor Natapoff

may reference certain studies and research about which

the jury may not be aware, that does not make her

conclusions about the marketplace or exchange of

information for certain benefits outside the common

experience or ken of the jury. The court has given wide

latitude throughout the cross-examination of the wit-

nesses concerning any possible consideration for testi-

mony or anticipation of benefits in exchange for

testifying for the state, and the jury certainly will have

that information to consider in making its credibility

determinations. Finally, of course, the court will be

instructing the jury in accordance with [State v. Arroyo,

supra, 292 Conn. 569–71], as to the testimony of incar-

cerated witnesses. So, for these reasons, the court sus-

tains the state’s objections to the testimony of

Professor Natapoff.’’

Accordingly, Natapoff was not permitted to testify

before the jury. Later, as part of the court’s jury charge,

the court gave an instruction regarding informant testi-

mony, cautioning the jurors to consider such testimony

with ‘‘particular care’’ and to ‘‘scrutinize it very carefully

before you accept it.’’41

At the outset, we note that ‘‘[a] witness qualified

as an expert by knowledge, skill, experience, training,

education or otherwise may testify in the form of an

opinion or otherwise concerning scientific, technical

or other specialized knowledge, if the testimony will

assist the trier of fact in understanding the evidence or

in determining a fact in issue.’’ Conn. Code Evid. § 7-

2. ‘‘[I]n order to be admissible, the proffered expert’s

knowledge must be directly applicable to the matter

specifically in issue.’’ State v. Douglas, 203 Conn. 445,

453, 525 A.2d 101 (1987). ‘‘The true test for the admissi-

bility of expert testimony is whether the witnesses

offered as experts have any peculiar knowledge or expe-

rience, not common to the world, which renders their

opinions founded on such knowledge or experience any

aid to the court or the jury in determining the question

at issue. . . . The test for admissibility is not limited

to matters of scientific knowledge. Generally, expert

testimony may be admitted if the witness has a special

skill or knowledge, beyond the ken of the average juror,

that, as properly applied, would be helpful to the deter-

mination of an ultimate issue. . . . The trial court has

wide discretion in ruling on the admissibility of expert

testimony and, unless that discretion has been abused

or the error is clear and involves a misconception of

the law, its ruling will not be disturbed.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985).

On the basis of our review of the record and the

arguments of the parties, we conclude that the court

abused its discretion by granting the state’s motion in

limine and excluding Natapoff as a witness, especially

in light of the fact that, in the present case, informants

played a crucial role in the state’s case against the

defendant. The court provided scant analysis for its

decision, essentially stating two reasons for precluding

Natapoff from testifying as an expert. First, the court

stated that Natapoff’s testimony would invade the jury’s

core function of assessing the credibility of witnesses.

Second, the court concluded that the subject matter of

Natapoff’s testimony was within the common knowl-

edge of the jury. Both rationales, however, are belied

by the substance of Natapoff’s unchallenged proffer,

and our Supreme Court’s acknowledgement of the

inherent unreliability of informant testimony in Arroyo

and the need to further educate jurors on this topic.

Moreover, the case law cited by the court is not control-

ling and does not support the court’s ruling.

We begin with the court’s conclusion that Natapoff’s

testimony would invade the jury’s exclusive province

to determine the credibility of witnesses. The court

indicated that it reached its decision on the basis of its

review of this court’s decision in State v. Favoccia,

supra, 119 Conn. App. 1, a case that was cited by the

state. The court’s reliance on Favoccia, however, is mis-

placed.

Favoccia involved the sexual abuse of a child. The

issue before this court was whether a psychologist, who

was offered by the state as an expert witness to explain

to the jury about characteristics and behaviors com-

monly exhibited by child sex abuse victims, improperly

was permitted to testify about the particular victim in

that case and if she had exhibited the type of behavior

described by the expert because such testimony consti-

tuted inadmissible vouching for the credibility of a wit-

ness. We held that the expert’s testimony ‘‘crossed the

line of permissible expert opinion’’ because her testi-

mony ‘‘went beyond a general discussion of characteris-

tics of sexual abuse victims and offered opinions, based

on her review of the videotaped forensic interview and

other documentation, as to whether this particular vic-

tim in fact exhibited the specified behaviors . . . .’’ Id.,

23. Our decision later was affirmed by our Supreme

Court; see State v. Favoccia, 306 Conn. 770, 805–807,

51 A.3d 1002 (2012); albeit after the ruling challenged

in the present appeal was rendered.

We began our analysis by noting generally that ‘‘[t]he

determination of the credibility of a witness is solely

the function of the jury. . . . It is the trier of fact which

determines the credibility of witnesses and the weight

to be accorded their testimony. . . . Expert witnesses

cannot be permitted to invade the province of the jury

by testifying as to the credibility of a particular wit-

ness or the truthfulness of a particular witness’

claims.’’ (Emphasis added; internal quotation marks

omitted.) State v. Favoccia, supra, 119 Conn. App. 18.

We later reiterated that ‘‘[c]redibility determinations are

the exclusive province of the fact finder, into which no

expert may venture.’’ Id., 29.

Favoccia, however, did not alter our well settled rule

as set forth in State v. Spigarolo, 210 Conn. 359, 378,

380, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct.

322, 107 L. Ed. 2d 312 (1989), that experts are permitted

to testify in sex abuse cases ‘‘to demonstrate or explain

in general terms the behavioral characteristics of child

abuse victims in disclosing alleged incidents’’; id., 380;

and that such expert testimony is admissible precisely

because it ‘‘is of valuable assistance to the trier in

assessing the minor victim’s credibility.’’ (Internal quo-

tation marks omitted.) State v. Favoccia, supra, 306

Conn. 787.

In Spigarolo, our Supreme Court rejected the defen-

dant’s argument that testimony by an expert would

usurp the jury’s function of assessing the credibility of

witnesses. The court found such concerns unfounded

because the expert ‘‘was not asked about the credibility

of the particular victims in this case, nor did she testify

as to their credibility.’’ State v. Spigarolo, supra, 210

Conn. 379. The court stressed that in determining the

admissibility of expert testimony, a critical distinction

must be recognized between admissible expert testi-

mony limited to general or typical behavior patterns and

inadmissible testimony directly related to a particular

witness’ credibility. Id., 378–79.

Our decision in State v. Favoccia, supra, 119 Conn.

App. 1, as affirmed by our Supreme Court, thus stands

for the general proposition that, although credibility

determinations ultimately must be left to the jury,

expert testimony nevertheless is admissible if it can

provide a jury with generalized information or behav-

ioral observations that are outside the knowledge of an

average juror and that would assist it in assessing a

particular witness’ credibility. As long as the expert

does not directly opine about a particular witness’ credi-

bility or, as in Favoccia, testify in such a way as to vouch

indirectly for or bolster the credibility of a witness, the

expert’s testimony would not invade the province of

the jury to decide credibility and may be admitted. State

v. Favoccia, supra, 306 Conn. 803–805.

In deciding to exclude Natapoff’s testimony on the

basis of Favoccia, the court did not refer to any particu-

lar portion of Natapoff’s testimony that it believed

would cross the line into impermissible expert testi-

mony regarding credibility. Natapoff, in fact, offered no

testimony regarding any of the particular informants in

this case, either with respect to their status as infor-

mants, how they had obtained their information, or their

potential reliability as witnesses. The defense clearly

indicated to the court during argument that the defen-

dant did not intend to ask Natapoff about the present

case, and that Natapoff had no specific knowledge of

the case or the informants involved. Natapoff’s testi-

mony, as proffered, was narrowly tailored to provide

only general information related to informant testimony

and its unreliability, an issue clearly recognized by our

Supreme Court in State v. Arroyo, supra, 292 Conn.

567–70. Our review of her testimony reveals that it could

have aided the jury in making its own informed and

independent assessment regarding the credibility of the

informants in the present case. Accordingly, the court

abused its discretion by excluding Natapoff’s testimony

on the ground that it invaded the province of the jury

to decide the credibility of witnesses.

The court also abused its discretion when it con-

cluded that the subject matter of Natapoff’s testimony

was within the common knowledge of the average juror.

The court provided no legal or factual basis for that

determination. The court never expressly stated that

it was rejecting Natapoff’s testimony or that it found

unreliable the underlying studies, some of which had

already been cited with approval by our Supreme Court.

The state offered nothing to counter Natapoff’s testi-

mony that, based on these studies, expert testimony

would provide significant information to the jury that

is not known by the average juror. Indeed, we are aware

of no empirical studies, nor were any provided by the

state, that suggest the subject matter of Natapoff’s testi-

mony was well within the knowledge of the average

lay person.

To the contrary, Natapoff testified that even if aver-

age jurors had some limited knowledge related to the

use of jailhouse informants, they did not understand

the true culture of jails or the full extent to which

informants could benefit in our criminal justice system.

She explained that a juror could not be expected to

understand the efforts informants put forth to obtain

their information or the possible sources for that infor-

mation. Further, according to Natapoff’s research,

jurors often have a misguided understanding regarding

the consequences an informant likely will face if he or

she lies. She explained that although perjury prosecu-

tions of informants are rare, jurors nevertheless often

believe the threat of perjury charges plays an important

role in ensuring that an informant tells the truth. Nata-

poff testified that without access to background infor-

mation, jurors are ill-equipped to assess properly an

informant’s credibility, even in the face of an instruction

asking them to take great care in doing so. In the face

of Natapoff’s uncontested testimony that jurors were

not fully aware of the dangers in relying on informant

testimony and that expert testimony could assist jurors

in properly evaluating an informant’s credibility, the

court abused its discretion by concluding that the sub-

stance of Natapoff’s testimony was within the ken of

the average juror.

In finding that the information Natapoff had to convey

was within the ken of the average juror, the court cited

favorably without discussion to our Supreme Court’s

decision in State v. McClendon, supra, 248 Conn. 586.

In McClendon, the court reaffirmed its decision in State

v. Kemp, supra, 199 Conn. 477, that a trial court does

not abuse its discretion by excluding expert testimony

on the reliability of eyewitness testimony because the

general principles of why such testimony may be unreli-

able were something that was ‘‘within the knowledge of

jurors and expert testimony generally would not assist

them in determining the question.’’ (Internal quotation

marks omitted.) State v. McClendon, supra, 586.

Because Kemp and McClendon did not involve infor-

mant testimony, and thus were in no way binding on

the trial court, they represented, at best, the Supreme

Court’s resolution of an arguably analogous issue.42 As

we have already explained, however, the only real evi-

dence before the trial court was that jurors did not have

a full understanding of the role of informants and the

inherent unreliability of their testimony, and that expert

testimony could aid the jury in assessing the credibility

of informants, a number of whom had testified against

the defendant in the present case.

Further, given that our Supreme Court has since over-

ruled Kemp and McClendon; see State v. Guilbert, 306

Conn. 218, 253, 49 A.3d 705 (2012); and has concluded

that a trial court may abuse its discretion by refusing to

permit expert testimony on the reliability of eyewitness

identifications, the court’s citation to McClendon, with-

out more, does not persuade us that the court properly

exercised its discretion. Even at the time the trial court

relied on McClendon, our Supreme Court already had

cast serious doubt upon the viability of its holding in

McClendon that jurors understood the factors that

affect the unreliability of eyewitness identification. See

State v. Ledbetter, 275 Conn. 534, 881 A.2d 290 (2005),

cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed.

2d 537 (2006); see also State v. Marquez, 291 Conn. 122,

967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237,

175 L. Ed. 2d 163 (2009).

In State v. Ledbetter, supra, 275 Conn. 579, the court

mandated that trial courts instruct juries about the risk

of misidentification caused by certain out-of-court iden-

tification procedures. That decision was reached on

the basis of the court’s exhaustive review of scientific

studies involving the risks of eyewitness identifications.

See id., 569–74. If the court needed to review scientific

studies in order to conclude that a jury instruction was

needed to avoid the risks inherent to eyewitness identi-

fications, this raised significant doubts about whether

such risks necessarily were within the general under-

standing of jurors and, therefore, whether expert testi-

mony properly should be precluded on that basis. As we

have already discussed, the Supreme Court in Arroyo

similarly reviewed and found persuasive studies dis-

cussing the dangers of informant testimony, including

work done by Natapoff, and, as it had done in Ledbetter,

it mandated that courts should give an appropriate

jury instruction.

Eventually, in State v. Guilbert, supra, 306 Conn. 253,

our Supreme Court overruled Kemp and McClendon,

and concluded that the trial court in Guilbert had

abused its discretion by not allowing expert testimony.

Indeed, it recognizing that although ‘‘[a]n expert should

not be permitted to give an opinion about the credibility

or accuracy of the eyewitness testimony itself [because]

that determination is solely within the province of the

jury . . . [an] expert should be permitted to testify

. . . about factors that generally have an adverse effect

on the reliability of eyewitness identifications and are

relevant to the specific eyewitness identification at

issue.’’ Id., 248. The court also held that generalized

jury instructions were not an adequate substitute for

expert testimony. Id., 258.

It is undisputed that Natapoff’s testimony demon-

strated that she was qualified to testify as an expert

about informant testimony. She had relevant informa-

tion about factors a jury should consider when evaluat-

ing the credibility of an informant, information that

was outside the knowledge of the average juror, as

demonstrated by Natapoff’s own testimony and the

numerous studies and research she cited to the court

and by our Supreme Court.43 Because her testimony

could have aided the jury in evaluating the credibility

of the informants who testified on behalf of the state

against the defendant, we are convinced that the court

abused its discretion by granting the state’s motion in

limine to preclude Natapoff’s testimony.

The judgment is reversed and the case is remanded

for a new trial.

In this opinion SHELDON, J., concurred.

1

General Statutes § 53a-54a (a) provides in relevant part: ‘‘A person is

guilty of murder when, with intent to cause the death of another person,

he causes the death of such person . . . .’’

2

General Statutes (Rev. to 1995) § 53a-54b, as amended by Public Acts

1995, No. 95-16, § 4, provides in relevant part: ‘‘A person is guilty of a capital

felony who is convicted of any of the following . . . (5) murder by a kidnap-

per of a kidnapped person during the course of the kidnapping or before

such person is able to return or be returned to safety . . . (7) murder

committed in the course of the commission of sexual assault in the first

degree . . . or (9) murder of a person under sixteen years of age.’’

Hereafter, unless otherwise indicated, all references in this opinion to

§ 53a-54b are to General Statutes (Rev. to 1995) § 53a-54b, as amended by

Public Acts 1995, No. 95-16, § 4.

3

In accordance with our policy of protecting the interests of the victims

of sexual abuse, we decline to identify the victim or others through whom

the victim’s identity may be ascertained. See General Statutes § 54-86e.

4

The defendant admitted to Allain that he choked A.P. to death and

disposed of her corpse in a body of water.

5

The defendant admitted to Douton that A.P. ‘‘was in the river’’ and that

‘‘they would never convict him because they would never find [her] body.’’

6

The defendant admitted to Ching that he had raped and killed a girl on

his boat. He also told Ching that he had hidden the body in a well before

dumping it in the Long Island Sound.

7

The defendant admitted to Buckingham that he accidentally choked a

young girl to death while having sex with her and that he then disposed of

the body in the ‘‘Sound.’’

8

Even though we conclude that the defendant is entitled to a new trial

because of harmful evidentiary error, it is necessary to address first the

defendant’s sufficiency of the evidence claim. As our Supreme Court stated

in State v. Padua, 273 Conn. 138, 179, 869 A.2d 192 (2005), ‘‘a reviewing

court must address a defendant’s insufficiency of the evidence claim, if the

claim is properly briefed and the record is adequate for the court’s review,

because resolution of the claim may be dispositive of the case and a retrial

may be a wasted endeavor.’’ (Internal quotation marks omitted.) ‘‘[A] defen-

dant is entitled to a judgment of acquittal and retrial is barred if an appellate

court determines that the evidence is insufficient to support the conviction.’’

(Internal quotation marks omitted.) State v. Tenay, 156 Conn. App. 792,

801–802, 114 A.3d 931 (2015).

9

The defendant also did not request that the jury be instructed on the

corpus delicti rule.

10

We note that, in one isolated instance, a concurring and dissenting

opinion, quoting a case from North Dakota, defines the corpus delicti rule

in homicide cases as ‘‘consist[ing] of two component parts, the first of which

is the death of the person alleged to have been killed, and the second that

such death was produced through criminal agency.’’ (Internal quotation

marks omitted.) State v. Courchesne, 296 Conn. 622, 791 n.5, 998 A.2d 1

(2010) (Zarella, J., concurring in part and dissenting in part).

11

In State v. DelVecchio, 191 Conn. 412, 426, 464 A.2d 813 (1983), our

Supreme Court later clarified that although it was not necessary for such

corroborating evidence to be introduced into evidence prior to the defen-

dant’s confession, that ‘‘is ordinarily the better procedure.’’

12

The defendant in Hafford was convicted of a capital felony for commit-

ting a murder in the course of the commission of a first degree sexual

assault, felony murder, murder, robbery in the first degree, burglary in the

first degree and sexual assault in the first degree. State v. Hafford, supra,

252 Conn. 276–77. The defendant’s corpus delicti claim was directed at his

sexual assault conviction.

13

Although the state did not initially raise this question in its brief, the

court raised the issue at oral argument and subsequently ordered the parties

to file supplemental briefs addressing the issue.

14

In at least one case decided since Oliveras, our Supreme Court noted that

the defendant at trial had objected to the admission of certain incriminating

statements on the ground that the state had failed to establish that the

corpus delicti existed in Connecticut. See State v. Beverly, 224 Conn. 372,

374 n.3, 618 A.2d 1335 (1993). On appeal, however, the defendant did not

pursue this evidentiary claim, but instead raised the corroboration rule as

part of his challenge to the sufficiency of the evidence. The court entertained

this claim without discussion of whether the corroboration rule is solely a

rule of evidence or may be raised as an insufficiency of the evidence claim.

Id., 374–75. Although the court in Beverly allowed the defendant to raise

the corroboration rule in challenging the sufficiency of the evidence, the

court also somewhat contradictorily stated: ‘‘The corpus delicti rule is a

rule of evidence intended to protect an accused from conviction as a result of

a baseless confession when no crime has in fact been committed.’’ (Emphasis

added.) Id., 375.

15

State v. Oliveras, supra, 210 Conn. 751, was decided before our Supreme

Court reformulated the corpus delicti rule in State v. Hafford, supra, 252

Conn. 314–18, by extending the Opper rule to all crimes, including homicides.

16

The concurring opinion does not explain why we are not bound by

the Supreme Court’s decision in Uretek, Inc., or by this court’s decision

in Heredia.

17

Professor George E. Dix opines that the rule is best understood as a

question of evidentiary sufficiency and recognizes that ‘‘[i]nsofar as the rule

is one of evidentiary sufficiency, its nature suggests that the jury should at

least play a role in its application.’’ 1 K. Broun, McCormick on Evidence (7th

Ed. 2013) § 145, p. 806. The treatise subsequently suggests, in a contradictory

fashion, that the jury is ill-suited to play a role in considering whether the

prosecution has introduced sufficient corroborating evidence. Id., p. 807.

18

This process is akin to the procedure used by a trial court in considering,

pursuant to a motion to suppress, whether a defendant’s statements to

law enforcement must be suppressed pursuant to constitutional guarantees

because they were not voluntarily made. In those circumstances, the trial

court decides whether to admit such statements and, if admitted, the jurors

are free to give the statements whatever weight they conclude is appropriate

based on all relevant facts, including whether such statements were volunta-

rily made. See Lego v. Twomey, 404 U.S. 477, 483–86, 92 S. Ct. 619, 30 L.

Ed. 2d 618 (1972).

19

Certainly, it is possible that the corroboration rule could have constitu-

tional implications if the legislature chose as a matter of state law to make

its proof an express statutory requirement and, thus, an element of the

crime. See Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d

508 (1975). The legislature has not done so in Connecticut.

20

The concurring opinion suggests that we have violated the rule that

sufficiency of the evidence claims are reviewable without reference to Gold-

ing. See State v. Adams, 225 Conn. 270, 276 n.3, 623 A.2d 42 (1993) This

suggestion misapprehends our analysis. We agree with the concurring opin-

ion that the defendant is entitled to appellate review of the sufficiency of

the evidence without reference to Golding, and we have afforded the defen-

dant that review by considering all the evidence admitted, including his

unobjected-to confessions. It is only the unpreserved, corpus delicti-based

challenge to the admission of the defendant’s confessions that we have

found to be an unpreserved, nonconstitutional claim that is not reviewable

under Golding. Under our standard of review, alleged errors in the admission

of evidence play no legitimate role in our evaluation of sufficiency of the

evidence claims. See State v. Carey, 228 Conn. 487, 496, 636 A.2d 840 (1994)

(‘‘[c]laims of evidentiary insufficiency in criminal cases are always addressed

independently of claims of evidentiary error’’); State v. Smith, 73 Conn.

App. 173, 180, 807 A.2d 500 (‘‘claim of insufficiency of the evidence must

be tested by reviewing no less than, and no more than, the evidence intro-

duced at trial’’), cert. denied, 262 Conn. 923, 812 A.2d 865 (2002).

21

The jury was free to interpret the defendant’s statement that he wanted

‘‘to do her’’ either as an expression of his intent to have sexual intercourse

with A.P. or as an expression of his intent to kill her. In either instance,

when considered in light of the defendant’s statement that he ‘‘need[ed] a

body for the altar,’’ the jury reasonably could have inferred that his ultimate

plan was to kill A.P.

22

We recognize that this prior misconduct evidence, standing alone, is

insufficient to prove that the defendant committed the crimes with which

he is charged. State v. DeJesus, supra, 288 Conn. 474 n.36. Such evidence,

however, may be used by the jury, in conjunction with all of the other

evidence, to conclude that the state proved the charges beyond a reason-

able doubt.

23

We note that the defendant’s confession to Ching, in particular, had

heightened trustworthiness because Ching was no longer in prison, on proba-

tion or parole, and had no charges pending against him at the time he related

the defendant’s confession to the police.

24

The defendant cannot rely on the corroboration rule in challenging the

sufficiency of the evidence regarding an intent to kill because, as previously

discussed, (1) he waived the application of that rule by failing to object

to the admission of the confessions, (2) his confessions were sufficiently

corroborated pursuant to Opper v. United States, supra, 348 U.S. 93, and

State v. Hafford, supra, 252 Conn. 316–17, and (3) the corpus delicti of the

crime of murder relates solely to the death of the victim and not to whether

the defendant had the requisite intent to kill.

25

The jury could have reasonably concluded from Allain’s eyewitness

testimony that the sexual assault occurred in the defendant’s truck in the

presence of Allain, or on the defendant’s boat, or at another location as

described in the defendant’s confession to Buckingham.

26

The defendant’s contention that his confessions are the only evidence

that he murdered A.P. in the course of the commission of a sexual assault

is incorrect. First, the defendant’s sexual assault of K.S. was admitted as

substantive evidence of his propensity to engage in the sexual assault of

teenage girls. Second, the jury could also have concluded that, in addition

to any sexual assault to which the defendant confessed, Allain witnessed

the defendant sexually assault A.P. in his truck. With respect to that sexual

assault, the defendant did not argue at trial, and does not argue in his

principal brief on appeal, that the sexual assault that Allain testified that

he witnessed is insufficient evidence because of any temporal incongruity

between the predicate sexual assault and A.P.’s murder. Accordingly, we

express no opinion regarding whether the murder was committed in the

course of the commission of the sexual assault to which Allain was an

eyewitness or a subsequent sexual assault as described in the defendant’s

confessions.

27

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