State v. Lebrick

Procedural entryThis page is a short order in State v. Lebrick. Read the opinion of the Court — 334 Conn. 492
Supreme Court of Connecticut·Decided January 28, 2020·No. SC20083 and·Published

Opinion

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The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. *********************************************** STATE v. LEBRICK—CONCURRENCE AND DISSENT

ROBINSON, C. J., with whom MULLINS, J., joins, concurring in part and dissenting in part. I respectfully disagree with part I of the majority opinion, in which the majority concludes that the state did not engage in a diligent, reasonable, and good faith effort to procure the in-court testimony of a witness, Keisha Parks, at the trial at which the defendant, Horvil F. Lebrick, was convicted of, inter alia, felony murder and home inva- sion. Given this conclusion, the majority holds that the Appellate Court improperly upheld the trial court’s determination that Parks was an unavailable witness and that the admission of her testimony from the defen- dant’s probable cause hearing did not violate the con- frontation clause of the sixth amendment to the United States constitution. See State v. Lebrick, 179 Conn. App. 221, 235–36, 178 A.3d 1064 (2018). In my view, the major- ity relies on twenty-twenty hindsight to conclude that the state’s efforts to find Parks, which utilized compre- hensive online resources and on the ground assistance from an investigator with the Kings County District Attorney’s Office to look for her at several potential addresses in two boroughs of New York City, were not reasonable. Because I would affirm the judgment of the Appellate Court upholding the judgment of conviction, I respectfully dissent.1 By way of background, I agree with the majority’s statement of the relevant facts and procedural history. I also agree with the general principles of law stated by the majority, along with its conclusion in part I A of its opinion that whether a witness is unavailable for confrontation clause purposes presents a mixed question of law and fact subject to plenary review.2 ‘‘The [s]ixth [a]mendment’s [c]onfrontation [c]lause provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the wit- nesses against him.’ . . . Most of the time, this means that a witness must appear in person and give live testimony at trial if her statements are to be used against the defendant. . . . ‘‘The defendant’s right to a [witness’] live testimony in the courtroom serves many important purposes, including allowing the jury to observe closely the [wit- ness’] demeanor, expressions, and intonations, and thereby determine the [witness’] credibility. . . . The [United States] Supreme Court has emphasized that in- court confrontation not only allows the defendant to test the [witness’] recollection, but also compels the witness ‘to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testi- mony whether he is worthy of belief.’ . . . ‘‘Of course, the [United States] Supreme Court has also told us that the right to a [witness’] presence at trial is not absolute. In [Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)], the Supreme Court expressly held that the testimony of a witness who does not appear at trial is still admissi- ble, in the constitutional sense, if these two conditions are met: (1) the witness ‘was unavailable to testify’; and (2) ‘the defendant had had a prior opportunity for cross- examination.’ . . . Accordingly, prior cross-examina- tion alone cannot substitute for the defendant’s right to live testimony in the courtroom unless the witness meets the [c]onfrontation [c]lause’s requirement of ‘unavailability.’ . . . The integrity of the fact-finding process is at stake because the [c]onfrontation [c]lause is a procedural protection.’’ (Citations omitted.) United States v. Smith, 928 F.3d 1215, 1226–27 (11th Cir. 2019), cert. denied, 88 U.S.L.W. 3225 (U.S. January 13, 2020) (No. 19-361); see, e.g., State v. Kirby, 280 Conn. 361, 364 n.1, 908 A.2d 506 (2006) (‘‘[t]he confrontation clause of the sixth amendment is made applicable to the states through the due process clause of the fourteenth amendment’’ [internal quotation marks omitted]). Consistent with the constitutional restrictions under Crawford, § 8-6 (1) of the Connecticut Code of Evi- dence3 allows for the admission of the ‘‘prior testimony of an unavailable witness . . . in a subsequent trial as an exception to the hearsay rule. . . . The two part test for the admissibility of such testimony is as follows: First . . . [t]he prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. . . . Even after the declarant is satisfactorily shown to be unavailable, his statement is admissible only if it bears adequate indicia of reliability . . . which serve to afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement. . . . ‘‘In State v. Frye, 182 Conn. 476, 480–81, 438 A.2d 735 (1980), we identified five of the most common situa- tions in which the declarant will be deemed unavailable for the purposes of certain hearsay exceptions. The situation relevant here states: the declarant is absent from the hearing and the proponent of his statement has been unable to procure his attendance . . . by pro- cess or other reasonable means. . . . In interpreting reasonable means, we have held that the proponent must exercise due diligence and, at a minimum, make a good faith effort to procure the declarant’s attendance.’’ (Citations omitted; emphasis in original; footnote omit- ted; internal quotation marks omitted.) State v. Rivera, 221 Conn. 58, 61–62, 602 A.2d 571 (1992); see, e.g., Hardy v. Cross, 565 U.S. 65, 69, 132 S. Ct. 490, 181 L. Ed. 2d 468 (2011); Ohio v. Roberts, 448 U.S. 56, 74, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), overruled on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); Barber v. Page, 390 U.S. 719, 724–25, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968); State v. Wright, 107 Conn. App. 85, 89–90, 943 A.2d 1159, cert. denied, 287 Conn. 914, 950 A.2d 1291 (2008). ‘‘To take advantage of the hearsay exceptions requir- ing unavailability, the proponent must show a good faith, genuine effort to procure the declarant’s atten- dance by process or other reasonable means. . . .

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