MAY CONTAIN INFORMATION PROTECTED

BY ORDER OR STATUTE

SUPREME COURT
OF THE

State of Connecticut

JUDICIAL DISTRICT OF NEW HAVEN

S.C.18973

STATE OF CONNECTICUT

JOSHUA KOMISARJEVSKY

BRIEF OF THE STATE OF CONNECTICUT-APPELLEE

WITH ATTACHED APPENDIX

To Be Argued By:

MARJORIE ALLEN DAUSTER

Senior Assistant State's Attorney
Office Of The Chief State's Attorney
Appellate Bureau
300 Corporate Place
Rocky Hill, CT 06067
Telephone: (860) 258-5807
Facsimile: (860) 258-5828
Juris Number 402418
Email: dcj.ocsa.appellate@ct.gov; marjorie.dauster@ct.gov
 TABLE OF CONTENTS

Page
COUNTERSTATEMENT OF THE ISSUES

TABLE OF AUTHORITIES.

NATURE OF THE PROCEEDINGS 1

COUNTERSTATEMENT OF THE FACTS 1

A. The Crimes 2

B. The Defendant's Statement 10

C. The Defendant's Case 16

D. Forensic Investigation 16

ARGUMENT 19

I. THE TRIAL COURT PROPERLY DENIED THE DEFENDANT'S MOTIONS

FOR CHANGE OF VENUE BECAUSE THE DEFENDANT FAILED TO
ESTABLISH THAT, DUE TO ADVERSE PRETRIAL PUBLICITY, IT WOULD
BE NEARLY IMPOSSIBLE TO SELECT A FAIR JURY, AND THE PARTIES
WERE ABLE TO SELECT A FAIR AND IMPARTIAL JURY 19

A. Applicable Law Respecting Change of Venue 20

B. Additional Facts and Proceedings 22

1. Motion to change venue and hearing 22

a. Evidence presented at hearing 22

b. Argument and ruling 23

2. Motion to sequester jurors 26

3. Oral motions to excuse tainted panels 26

4. Voir Dire 27

b. TA

TM-T 29
 d. KA

e. VK

g. LC

h. RF

k. JH,

5. Jurors for whom trial court denied the defendant's motions for
dismissal for cause and for whom the defendant exercised a
peremptory challenge 38

6. Other jurors challenged 38

a. JM-M 38

b. CLandMB 40

7. Other Motions

a. Pretrial motions 40

b. Motions filed after twelfth seated juror selected 41

8. Motion to strike panel and change venue to Stamford 41

9. Post-trial venue argument 43

Pretrial Publicity About This Case Did Not Deprive The Defendant Of A
Fair Trial By An Impartial Jury 44

1. Prejudice should not be presumed 44

a. Prejudice should not be presumed 44

b. Alternatively, any presumed prejudice is rebuttable 53

2. There was no actual bias 55

D. The Trial Court Properly Denied The Other Motions Referred To By
The Defendant 61

1. Motions to sequester jury dated February 24, 2011, and

Septennber12. 2011 61

2. Motion to continue jury selection due to connments of Senator

Prague, dated May 17. 2011 61

3. Motions to Excuse Tainted Jury Panels^ dated April 12, 2011,

April 20, 2011 and April 27, 2011 62

4. Motion for a new trial 62

5. Other Actions 62

E. Conclusion 63

THE DEFENDANT CANNOT PREVAIL ON HIS CLAIM THAT THE TRIAL

COURT IMPROPERLY DENIED HIS CHALLENGES FOR CAUSE 63

THE DEFENDANT'S RIGHT TO DUE PROCESS WAS NOT VIOLATED BY

THE PRODUCTION OF THE HAYES LETTERS AFTER THE EVIDENCE
HAD CLOSED, AND THE TRIAL COURT PROPERLY EXERCISED ITS
DISCRETION WHEN IT DENIED THE DEFENDANT'S MOTIONS TO
REOPEN. FOR A CONTINUANCE AND FOR A MISTRIAL 65

A. Additional Facts Pertinent to this Claim 65

1. Motion for continuance 65

2. Exhibit BBB-i 66

3. Closing arguments 70

4. Post argument discussions 74

B. The Trial Court Properly Denied Motions To Reopen And For A

Continuance 80

1. Standard of review 80

2. The Trial Court Properly Exercised its Discretion 81

a. The trial court properly exercised its discretion in ruling

that the letters were inadmissible 81
 b. When denying the motion for continuance, the trial court
properly took into consideration that the duration of the
delay was entirely speculative 87

c. Any error was manifestly harmless 89

C. The Defendant Has Failed To Prove A Brac/yViolation 89

1. Standard of review and pertinent law 90

2. The defendant cannot establish the three elements of Brady 91

a. The defendant was not prejudiced by late disclosure 91

b. The evidence was not material 92

c. The record is inadequate to determine if the state

suppressed the letters 93

D. Conclusion,

THE DEFENDANT WAS NOT DENIED DUE PROCESS BY THE STATE'S

FAILURE TO PRODUCE CERTAIN TAPE RECORDINGS OF POLICE
COMMUNICATIONS 95

A. Additional Facts PertinentTo All Of The Communications 96

1. Production pre-trial

2. Stipulations and trial court ruling after Floyd hearing 99

B. Standard Of Review 101

C. The Defendant Was Not Deprived Of A Fair Trial By The State's

Failure To Produce Six Police Calls Relevant To Police Response 103

1. Additional facts pertinent to police response. 105

a. Use of police response during trial 105

b. Other evidence presented 112

c. Closing arguments 113

d. Additional evidence adduced at F/oyrfmotion and hearing....116

2. There is no reasonable probability that the result of the trial

would have been different if the communications had been
produced at trial 117
D. The Defendant Was Not Deprived Of A Fair Trial By Failure To
Produce Police Connmunications Of Shawn Patterson or Kerry Nastri
Relevant To Demeanor 123

1. Additional facts pertinent to the demeanor calls 124

a. Hearing on motion to suppress 124

b. Proceedings at trial 128

c. Evidence from Floyd hearing 129

2. The evidence was not material 130

E. Considered Cumulatively, The Suppressed Evidence Was Not

Material 131

F. The Trial Court Did Not Err In Determining That The Defendant Failed
To Prove The Existence Of A Communication Referred To By CHR 131

1. Additional facts pertinent to this claim 132

2. The trial court did not err in determining that the defendant did
not prove the existence of the call 136

a. The trial court did not err when it found that the
defendant failed to prove that the call existed 136

b. The trial court applied the correct burden of proof. 136

0. The trial court acted well within its broad discretion when
It sustained the state's objection to lay opinion 138

THERE IS NO REASONABLE POSSIBILITY THAT THE DEFENDANT WAS

DEPRIVED OF A FAIR TRIAL BY THE PROSECUTION'S PRESENTATION
OF TESTIMONY ABOUT PHOTOGRAPHS FROM THE DEFENDANT'S
PHONE 139

A. Additional Facts Pertinent to this Claim 140

1. Floyd hearing 140

2. Testimony from the Hayes trial ..140

3. Testimony from the defendant's trial 142

B. Standard Of Review And Pertinent Law 146

C. The State Acted Properly When It Did Not Correct Brunetti's Testimony.... 147
 The transcript and the photo from the Hayes trial should not
have been made part of the record 147

If this Court reviews the Hayes documents, the record is

Inadequate to demonstrate that any testimony was false or
substantially misleading 149

If the testimony was false, there Is no due process violation

because defendant was aware of the information 151

There is no reasonable likelihood that any false testimony

affected the judgment of the jury 154

VI. THE DEFENDANT CANNOT PREVAIL ON HIS CLAIM THAT GENERAL

STATUTES § 18-10b CANNOT BE APPLIED TO HIM 157

CONCLUSION 158
 COUNTERSTATEMENT OF THE ISSUES

DID THE TRIAL COURT IMPROPERLY DENY THE DEFENDANT'S

MOTIONS FOR CHANGE OF VENUE WHERE THE DEFENDANT FAILED
TO ESTABLISH THAT, DUE TO ADVERSE PRETRIAL PUBLICITY, IT
WOULD BE NEARLY IMPOSSIBLE TO SELECT A FAIR JURY, AND THE
PARTIES WERE ABLE TO SELECT A FAIR AND IMPARTIAL JURY?

CAN THE DEFENDANT PREVAIL ON HIS CLAIM THAT THE TRIAL COURT
IMPROPERLY DENIED HIS CHALLENGES FOR CAUSE?

WAS THE DEFENDANT'S RIGHT TO DUE PROCESS VIOLATED BY THE

PRODUCTION OF THE HAYES LETTERS AFTER THE EVIDENCE HAD
CLOSED, AND DID THE TRIAL COURT PROPERLY EXERCISE ITS
DISCRETION WHEN IT DENIED THE DEFENDANT'S MOTIONS TO
REOPEN. FOR A CONTINUANCE AND FOR A MISTRIAL?

WAS THE DEFENDANT DENIED DUE PROCESS BY THE STATE'S

FAILURE TO PRODUCE CERTAIN TAPE RECORDINGS OF POLICE
COMMUNICATIONS?

IS THERE A REASONABLE POSSIBILITY THAT THE DEFENDANT WAS

DEPRIVED OF A FAIR TRIAL BY THE PROSECUTION'S PRESENTATION
OF TESTIMONY ABOUT PHOTOGRAPHS FROM THE DEFENDANT'S
PHONE?

CAN THE DEFENDANT PREVAIL ON HIS CLAIM THAT GENERAL

STATUTES § 18-1 Ob CANNOT BE APPLIED TO HIM?
 TABLE OF AUTHORITIES

CASES

Adams v. Commissioner, 309 Conn. 359, 71 A.3d 512 (2013) 146, 155

Alcorta v. Texas, 355 U.S. 28 (1957) 146

Beck V. Washington, 369 U.S. 541 (1962) 53, 57

Beltran v. Cockreli, 294 F.3d 730 {5th Cir. 2002) 151

Brady V. Maryland, 373 U.S. 83 (1963) passim

Calleyv. Callaway, 519 F.2d 184 (5th Cir. 1975) 21

Demers v. State, 209 Conn. 143, 547 A.2d 28 (1988) 94, 95

Diaz V. Commissioner, 152 Conn. App. 669, 100 A.3d 856,

cert, denied, 314 Conn. 937 (2014) 148

DiSimone v. Phillips, 461 F.3d 181 (2d Cir. 2006) 91

Dobbert Florida, 432 U.S. 282 (1977) 20, 57, 61

Elsey V. Commissioner, 126 Conn. App. 144, 10 A.3d 578,

cert, denied, 300 Conn. 922 (2011) 121

Estes V. Texas, 381 U.S. 532 (1965) 51

Ferguson v. State, 101 So. 3d 895 (Fla. Dist. Ct. App. 2012),
rev. denied. 147 So.3d 522 (2014) 150

First Am. Title Ins. Co. v. 273 Water St, LLC, 157 Conn. App. 23,
117A.3d 857 (2015) 138

Flippo V. McBride, 393 Fed. Appx 93 (4th Cir. 2010) 149

Franko v. Commissioner, 165 Conn. App. 505, 139 A.3d 798 (2016) 137

Gaskin v. Commissioner, 183 Conn. App. 496, 193 A.3d 625 (2018) 153

Gentile v. State BarofNev., 501 U.S. 1030 (1991) 46

Gibson v. Sec'y Pennsylvania Dep'tofCorr., 718 F. App'x 126 (3d Cir. 2017) 118
Giglio V. U.S.. 405 U.S. 150 (1972) 139, 140, 142, 146, 150-152

Greene v. Commissioner, 330 Conn. 1, 190 A.3d 851 (2018) 151

Hafdahi v. Johnson, 251 F.3d 528 (5th Cir.),

cert, denied, 534 U.S. 1047 (2001) 147

Hous. Auth. of City of Hartford v. Charter Oak Terrace/Rice Heights Health Ctr, Inc.,
82 Conn. App. 18, 842 A.2d 601 (2004) 147
In re Tsamaev, 780 F.3d 14 (1st Cir. 2015) 45, 47, 48, 55, 59

Irvin V. Dowd, 366 U.S. 717 (1961) 20

Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002) 153

Ken/ick v. Silver Hil! Hosp., 309 Conn. 688, 72 A.3d 1044 (2013) 63
Kyles V. Whitley, 514 U.S. 419 (1995) 90, 93, 94, 102, 131, 137
Lamarca v. State, 931 So. 2d 838 (Fla. 2006) 149
Luong v. State, 199 So.3d 139 (Ala. 2014),
as modified (May 23, 2014) 51

Maharaj v. Sec'yDept ofCorrs., 432 F.3d 1292 (11th Cir.),

cert, denied, 549 U.S. 819 (2005) 150

Martin v. Flanagan, 107 Conn. App. 544, 945 A.2d 1024 (2008) 83, 84
Mayola v. Alabama, 623 F. 2d 992 (5th Cir. 1980),
cert, denied, 451 U.S. 913 (1981) 53

McClintock v. Rivard, 219 Conn. 417, 593 A.2d 1375 (1991) 147
Miller V. Pate, 386 U.S. 1 (1967) 146

Mooneyv. Holohan, 294 U.S. 103 (1935) 146, 152

Mu'Min \/. Virginia, 500 U.S. 415 (1991) 48, 58
Murphy v. Florida, 421 U.S. 794 (1975) 48, 53, 57, 59
Napue V. Illinois, 360 U.S. 264 (1959) 139, 140, 142, 146, 148, 151, 152
Nebraska Press Assn. Stuart, 427 U.S. 539 (1976) 21, 55
Ration v. Yount, 467 U.S. 1025 (1984) 21, 53, 54. 57. 59

People V. Superior Court, 80 Cal. App. 4th 1305, 96 Cal. Rptr. 2d 264 (2000) 95

Rideau v. Louisiana, 373 U.S. 723 (1963) 24, 25, 45-47, 49, 55

Ross V. Heyne, 638 F.2d 979 (7th Cir. 1980) 153

Ross V. Oklahonja, 487 U.S. 81 (1988) 28, 38, 40, 64

Sheppard v. Maxwell, 384 U.S. 333 (1966) 51

Skilling v. United States, 561 U.S. 358 (2010) passim

Smith V. Cain, 565 U.S. 73 (2012) 102

State V. Annum, 309 Conn. 482, 71 A.3d 530 (2013) 81

State V. Bonds, 172 Conn. App. 108. 158 A.3d 826,

cert, denied, 326 Conn. 907 (2017) 84

State V. Breton, 264 Conn. 327, 824 A.2d 778,

cert, denied, 540 U.S. 1055 (2003) 80, 81, 88

V. Brunetti, 279 Conn. 39, 901 A.2d 1 (2006),

cert, denied, 549 U.S. 1212 (2007) 147

State I/. Bryant, 202 Conn. 676, 523 A.2d 451 (1987) 86

State V. Camacho, 282 Conn 328, 924 A.2d 99 (2007) 82, 83

State V. Campbell. 328 Conn. 444, 180 A.3d 882 (2018) 64. 87, 89, 158

State V. Carpenter, 275 Conn. 785, 882 A.2d 604 (2005).

cert, denied. 547 U.S. 1025 (2006) 60.138

State V. Carter, 228 Conn. 412. 636 A.2d 821 (1994) 80, 81

State Chapman, 33 Conn. App. 205, 635 A.2d 290 (1993),

cert, denied, 228 Conn. 920 (1994) 60

State V. Clark, 255 Conn. 268, 764 A.2d 1251 (2001) 99,104

Sfafe v. Crafts, 226 Conn. 226 Conn. 237, 627 A.2d 877 (1993) 60

State V. Ellis, 224 Conn. 711, 621 A.2d 250 (1993) 150
state V. Esposito, 223 Conn. 299, 613 A.2d 242 (1992) 64, 65

Sfafe V. Finan, 275 Conn. 60, 881 A.2d 187 (2005) 138

State V. Floyd. 253 Conn. 700, 756 A.2d 799 (2000) passim

State V. Gonzalez, 205 Conn. 673, 535 A.2d 345 (1987) 154

State \/. Gould, 322 Conn. 519, 142 A.3d 253 (2016) 62

Sfafe V/. Griffin, 251 Conn. 671, 741 A.2d 913 (1999) 21

Sfafe V. Guenrera, S.C. 19785, argued September 21, 2017 94

State V. Hamlin, 90 Conn. App. 445, 878 A.2d 374,

cert, denied, 276 Conn. 914 (2005) 147, 148

State V. Johnson, 57 Conn. App. 156, 748 A.2d 334,

cert, denied, 253 Conn. 912 (2000) 152

State V. Jordan, 314 Conn. 354, 102 A.3d 1 (2014) 146, 151

State V. Kelly, 256 Conn. 23, 770 A.2d 908 (2001) 26, 47, 61, 64

State I'. Komisarjevsky, 302 Conn. 162, 25 A.3d 613 (2011) 52

State I/. Komisarjevsky, No. CR07241860, 2011 WL 1168532

(Conn. Super. Ct. Feb. 28, 2011) 24, 46-48, 50

Sfafe v. Lawrence, 282 Conn, 141, 920 A.2d 236 (2007) 130

State V. Lopez, 254 Conn. 309, 757 A.2d 542 (2000) 85

State V. Man-a, 195 Conn. 421, 489 A.2d 350 (1985) 21

State V. McKnight, 191 Conn. 564, 469 A.2d 397 (1983) 80

State V. Mercer, 208 Conn. 52, 544 A.2d 611 (1988) 54

State I'. Miguel C., 305 Conn. 562, 46 A.3d 126 (2012) 81

State V. Montini, 52 Conn. App. 682, 730 A.2d 76,

cert, denied, 249 Conn. 909 (1999) 80

State V. Nonnan P., 329 Conn. 440, 186 A.3d 1143 (2018) 87

State V. O'Brien-Veader, 318 Conn. 514, 122 A.3d 555 (2015) 19

state I/. Ortiz, 252 Conn. 533, 747 A.2d 487 (2000) 91

State V. Ortiz, 280 Conn. 686, 911 A.2d 1055 (2006) 91,122, 137, 148

State V. Osimanti, 299 Conn. 1,6 A.3d 790 (2010) 61

State V. Ouellette, 295 Conn. 173, 989 A.2d 1048 (2010) 146

State V. Ovechka, 292 Conn. 533, 975 A.2d 1 (2009) 150

State V. Papineau, 182 Conn. App. 756, 190 A.3d 913,

cert, denied, 330 Conn. 916 (2018) 81, 86

State v. Peeler, 271 Conn. 338, 857 A.2d 808 (2004),

cert, denied, 546 U.S. 845 (2005) 19

State 1/. Pierre, 277 Conn. 42, 890 A.2d 474,

cert, denied, 547 U.S. 1197 (2006) 83

State V. Poianco, 308 Conn. 242, 61 A.3d 1084 (2013) 1

State V. Pollitt, 199 Conn. 399, 508 A.2d 1 (1986) 91, 92

State V. Reynolds, 264 Conn. 1, 836 A.2d 224 (2003),

cert, denied, 541 U.S. 908 (2004) 20, 21, 55, 154

State V. Rivera, 268 Conn. 351, 844 A.2d 191 (2004) 82, 87, 89

State V. Rizzo, 303 Conn. 71, 31 A.3d 1094 (2011),

cert, denied, 568 U.S. 836 (2112) 130

State V. Roman, 224 Conn. 63, 616 A.2d 266 (1992),

cert, denied, 507 U.S. 1039 (1993) 80

State V. Rosado, 218 Conn. 239, 588 A.2d 1066 (1991) 85

State I/. Ross, 251 Conn. 579, 742 A.2d 312 (1999) 91

State V. Ross, 269 Conn. 213, 849 A.2d 648 (2004) 90

State V. Santiago. 245 Conn. 301, 715 A.2d 1 (1998) 90

State V. Santiago, 318 Conn. 1, 122 A.3d 1 (2015) 1, 158

State V. Satchweli, 244 Conn. 547, 710 A.2d 1348 (1998) 149, 150
State i^. Schiappa, 248 Conn. 132, 728 A.2d 466 (1999) 82, 83, 86
state V. Smith, 289 Conn. 598, 960 A.2ci 993 (2008) 83

State v. Snelgrove, 288 Conn, 742, 954 A.2d 165 (2008) 82

State V. Stovall, 316 Conn. 514, 115 A.3d 1071 (2015) 121

State V. T.R.D., 286 Conn. 191, 942 A.2d 1000 (2008) 19, 22, 61, 63, 65, 154

State V. Thompson, 305 Conn. 412, 45 A.3d 605 (2012),

cert, denied, 568 U.S. 1146 (2013) 137

State V. Tomas D., 296 Conn. 476, 995 A.2d 583 (2010) 152

State V. Townsend, 211 Conn. 215, 558 A.2d 669 (1989) 49

State V. Vitale, 190 Conn. 219, 460 A.2d 961 (1983) 59, 64

State V. Walker. 214 Conn. 122, 571 A.2d 686 (1990) 90-92

Stevenson v. Commissioner, 165 Conn. App. 355, 139 A.3d 718,

cert, denied, 322 Conn. 903 (2016) 95

Stricl<land v. Washington, 466 U.S. 668 (1984) 137

Stricklerv. Greene, 527 U.S. 263 (1999) 90, 94, 122

Strobie v. California, 343 U.S. 181 (1952) 48, 50

Tnijillo V. Sullivan, 815 F.2d 597 (10th Cir.),

cert, denied, 484 U.S. 929 (1987) 121

U.S. V. Agurs, 427 U.S. 97 (1976) 102, 146, 155

U.S. v. Avellino, 136 F.3d 249 (2d Cir. 1998) 95

U.S. V. Bagley, 473 U.S. 667 (1985) 137

U.S. V. Campa, 459 F.3d 1121 (11th Cir. 2006) 46, 53-55

U.S. V. Cannady, 719 F. App'x 237 (4th Cir. 2018) 102,118

U.S. V. Casellas-Toro, 807 F.3d 380 (1st Cir. 2015) 47

U.S. V. Crockett, 435 F.3d 1305 (10th Cir. 2006) 151

U.S. V. Decker, 543 F.2d 1102 (5th Cir. 1976),

cert, denied, 431 U.S. 906 (1977) 151
us. v. Foster, 874 F.2d 491 (8th Cir. 1988) 151

U.S. V. Harris, 498 F.2d 1164 (3d Cir.),

cert, denied. 419 U.S. 1069 (1974) 151

U.S. v'. Iverson, 648 F.2d 737 (D C. Cir. 1981) 151, 153

U.S. V. LaPage, 231 F.3d 488 (9th Cir. 2000) ..152

U.S. V. Mangual-Garcia, 505 F.3d 1 (1st Cir. 2007),

cert, denied, 553 U.S. 1019 (2008) 151,154

as. V. Martinez-Salazar, 528 U.S. 304 (2000) 64

U.S. I/. McVeigh, 153 F.3d 1166 (10th Cir. 1998),

cert, denied, 526 U.S. 1007 (1999) 54

U.S. V. Meinster, 619 F.2d 1041 (4th Cir. 1980) 151

U.S. V. Michael, 17 F.3d 1383 (11th Clr.1994) 149

U.S. V. Parker, 877 F. 2d 327 (5th Cir.),

cert, denied, 493 U.S. 871 (1981) 54

U.S. V. Sanfilippo, 564 F.2d 176 (5th Cir. 1977) ....153

U.S. V. Stadtmauer, 620 F.3d 238 (3rd Cir. 2010) 149

U.S. V. Stein, 846 F.3d 1135 (11th dr.),

cert, denied, 138 S.Ct. 556 (2017) 151

U.S. V. Tsarnaev, 157 F.Supp.3d 57 (D.Mass. 2016) 46

U.S. V. Wright. 848 F.3d 1274 (10th Cir.),

cert, denied, 138 S.Ct. 115 (2017) 118

U.S. V. Sabhnani, 599 F.3d 215 (2d Cir. 2010) 25

Williamson v. U.S., 512 U.S. 594 (1994) 86

Wright v. Sec'y, Fla. Dep't of Com, 761 F.3d 1256 (11th Cir, 2014) 131

STATUTORY PROVISIONS

General Statutes § 18-1 Ob 157, 158

General Statutes § 18-81 95

General Statutes § 53a-46a

General Statutes § 53a-54a,

General Statutes § 53a-54b,

General Statutes § 53a-60

General Statutes § 53a-70,

General Statutes § 53a-92,

General Statutes § 53a-102

General Statutes § 53a-111

General Statutes § 53a-122

General Statutes § 54-82h 27

CONSTITUTIONAL PROVISIONS

Eighth Amendment to the United States Constitution 157

Fifth Amendment to the United States Constitution 76. 79. 82, 94

Sixth Amendment to the United States Constitution 20, 64
RULES OF COURT

Practice Book§ 1-5 87

Practice Book § 41-23 20

Practice Book § 42-22 26

MISCELLANEOUS

2 Charles Alan Wright, Federal Practice and Procedure § 342 (3d ed. 2000) 54
Code of Evidence § 4-3 79, 87
Code of Evidence § 4-5 81

Code of Evidence § 7-1 138

Code of Evidence § 8-6 79, 81

Code of Evidence § 9-1 138

Tait's Handbook of Connecticut Evidence {4th Ed.2008) 150

 NATURE OF THE PROCEEDINGS

After a July 23, 2007 home invasion by the defendant, Joshua Komisarjevsky, and
Steven Hayes, followed by assault and murder, the defendant was tried before a jury, Blue,
J. presiding. On October 13, 2011, the jury found him guilty of six counts of capital felony.
General Statutes § 53a-54b: three counts of murder, General Statutes § 53a-54a; four
counts of first degree kidnapping, General Statutes § 53a-92; one count of first degree sex
ual assault, General Statutes § 53a-70; one count of second degree burglary, General Sta
tutes §§ 53a-102 and 53a-122; one count of first degree arson. General Statutes § 53a-
111; and one count of second degree assault, General Statutes § 53a-60. T.I0/13/11 at 8-
17. On December 9, 2011, after a penalty hearing under General Statutes § 53a-46a, the
jury agreed to the death penalty for each capital felony count. T.12/9/11 at 7-86. On Janu
ary 27, 2012, the trial court imposed a total effective term of six consecutive death sen

tences plus 140 years of imprisonment. T.1/27/12 at 65. Following this Court's decisions in
State V. Santiago, 318 Conn. 1 (2015), which held that capital punishment violates the state
constitution, and in State v. Polanco, 308 Conn. 242 (2013), which held that the proper
remedy for double jeopardy violations is vacatur of lesser included offenses, the defendant
moved the trial court to correct an illegal sentence. Accordingly, on July 26, 2016, the trial
court vacated the six death sentences, vacated the defendant's three murder convictions

and first-degree sexual assault conviction, and resentenced him to six consecutive terms of

life imprisonment without the possibility of release plus 140 years of imprisonment.
COUNTERSTATEMENT OF THE FACTS

At trial, the defendant admitted that he was guilty of kidnapping all four victims, sex
ual assault, burglary, and assault. See T.9/19/11 at 41; T.I0/11/II at 58, 105-06. The de
fendant contested the murder and capital felony charges, claiming he did not intend to kill,
and contested the factual basis of the sexual assault charge, claiming he had engaged in
oral assault and masturbation, not anal assault. T.I0/11/11 at 56-59. Based on the evi-'
dence presented at the guilt phase, the jury reasonably could have concluded that the de
fendant was guilty of all of the charges."'
A. The Crimes

In July of 2007, WP, an endocrinologist, and JHP, a pediatric nurse, lived with their
two children, HP, age seventeen and a rising college freshman, and MP, age eleven and
about to enter sixth grade, in a residential neighborhood in Cheshire. T.9/20/11 at 16-18,
21, 23-25. On Sunday, July 22, 2007, WP, JHP, and MP attended their local church. Id. at
27. Following church, WP met his father for golf, while JHP and both girls spent the day at
the beach. Id. at 27. After returning from the beach, JHP and MP went shopping at Stop &
Shop in the Maplecroft Plaza in Cheshire. Id. at 28. The defendant had gone to Stop &
Shop at around 6 p.m. to meet Michael Ranno to get paid for having worked for him that
day. T.9/21/11 at 149-50; T.9/26/11 at 137-38. The defendant saw JHP and MP enter the

store and thought they had a very nice vehicle. T.9/21/11 at 150; T.9/26/11 at 108-27, 137-
38, 145. About 15 minutes later, as the defendant completed his transaction with Ranno, he
saw JHP and MP get in their car; the defendant followed them home. T.9/21/11 at 150.

The defendant contacted Hayes, who had been calling him all day wanting to dis
cuss options for making money fast. T.9/21/11 at 150-51. The defendant spent the rest of
the evening with his daughter. Id. at 151.
Between 8 and 9 p.m. that evening, P family ate dinner together in their home.
T.9/20/11 at 28, 31. Following dinner, WP retired to the family room to read the paper, and,
when the three women came to the family room to watch a 10 o'clock show, WP moved to
the sofa in the sunroom. Id. at 31-32. At some point, WP fell asleep on the sofa. Id. at 32.

' With respect to arson in the first degree, the defendant agreed that at one point he
did intend to burn the house down when he thought he and Hayes would first remove the
family, but later did not intend that the house be burned with people inside. T.I0/11/11 at
59-60, 106. The trial court instructed that the defendant had to intend to damage a building,
and that the building was occupied. See T.10/11/11 at 202-03.
 While the P family was having dinner, Hayes and the defendant exchanged several
text messages: (1) at 7:45 p.m., Hayes texted to the defendant, "I'm chomping at the bit to
get started. Need a margarita soon"; (2) at 8:45 p.m., Hayes texted to the defendant, "We
still on?"; (3) two minutes later, the defendant replied, "Yes"; (4) three minutes later, Hayes
texted to the defendant, "Soon?"; (5) three minutes later, the defendant replied, "I'm putting
the kid to bed, hold your horses": and (6) at 9:20 p.m., Hayes responded. "Dude, the horses

want to get loose, L-O-L". T.9/28/11 at 40-42; see S.Ex.173. At about 10 o'clock that even

ing, the defendant met Hayes at Stop & Shop in Cheshire. T.9/21/11 at 151. They got in the
defendant's car and drove around, talking about ways to score money. Id at 151-52. When
the defendant remembered the family from Stop & Shop, they drove to the neighborhood,
parked out of sight, donned rubber gloves and facemasks cut out of shirts and walked to
the house. Id. at 152. Hayes carried a pellet gun that he had purchased the day before at
Walmart, accompanied by the defendant. Id. at 153. The two walked around the house and
noticed the father was sleeping in the sunroom. Id. at 153. After checking windows and
doors, they determined that a Bilco door to the basement was unlocked. Id. at 153-54. The

defendant opened the door and entered the basement; it was now 2 to 2:45 a.m. Id. at 154.

The defendant found a baseball bat in the basement and made his way to the sun-
room. T.9/21/11 at 154-55. The defendant struck WP in the head with the baseball bat, and

WP let out an "unearthly scream." T.9/20/11 at 32, 71; T.9/21/11 at 155. There was a lot of
blood. T.9/20/11 at 32; T.9/21/11 at 155. The defendant kept hitting him until he backed into
a corner of the couch and quieted down. T.9/21/11 at 155. The defendant then unlocked
the rear door and let in Hayes. T.9/21/11 at 155. When WP sat up, he saw one person
standing in front of him, and about thirty seconds later, he noted a second standing right
behind the first. T.9/20/11 at 33. The person in the rear seemed to be holding a gun in his
hand, and WP thought the gun resembled a 9 millimeter automatic. T.9/20/11 at 33.
The defendant told WP to lie back on the couch and tied him at his wrists and

ankles. T.9/20/11 at 35; T.9/21/11 at 156 (defendant tied feet and Hayes tied hands). The
intruders covered WP's head with a towel. T.9/20/11 at 35; T.9/21/11 at 161. WP heard the

defendant say that, if he moves, put a bullet in him.^ T.9/20/11 at 35. The defendant also
said "if we get the money, nobody will be hurt." T.9/20/11 at 46; T.9/21/11 at 156.
The defendant asked if there was any one else In the house, and WP told them
there were three women upstairs. T.9/21/11 at 156. Hayes and the defendant went upstairs
and found JHP and MP in the same bed and tied them up. Id. at 156-57. They then went to
HP's room and tied her up. Id. at 160.
Hayes and the defendant then "empt[ied] the house of valuables", but found no
cash. T.9/21/11 at 160-61. They also gathered all the phones and put them in a central loc
ation. Id. at 165-66. The defendant asked WP ifthere was a safe, and WP replied that there
was no safe. T.9/20/11 at 36, T.9/21/11 at 161 (JHP also said no safe). The defendant
asked WP if he had a large amount of money in his checking accounts and WP said no.
T.9/20/11 at 73. For the next hour and a half or so, WP remained on the sofa in the sun-
room, woozy and oozing a lot of blood due to the Coumadin he was taking. Id. at 36-37. It
was very quiet in the house and he never heard the voices of HP or MP. Id. at 37, 46-47.
The defendant decided to move his car because, as dawn approached, he believed
it would be noticed on the street. T.9/21/11 at 163-64. To keep the family from getting free,
the intruders moved MP to her own room and then tied each woman to her bed. Id. at 164-

65. The men put pillowcases over their heads so they could not see the intruders and be
cause it was difficult to walk around with the masks on. Id. at 178-79. The men found JHP's

car keys; Hayes got into the family's Pacifica and the defendant went to his van. T.9/21/11
at 165-66. They left WP in the sunroom. T.9/20/11 at 46; T.9/21/11 at 166. They left the de
fendant's car in the parking lot of a condo complex. T.9/21/11 at 167; T.9/26/11 at 196.

2 ri|-1
The jury could have inferred the speaker was the defendant because Hayes had
the gun; T.9/21/11 at 126, 153; the defendant, in his statement, said he spoke; id. at 156;
and WP believed that only one of the intruders ever spoke to him. Id. at 37, 72, 87.
 On their return, between 4:45 and 5:30, the nnen cut the bindings on WP's feet and
took him to the basement because it was getting light out and the defendant was con
cerned neighbors might see WP. T.9/20/11 at 36; T.9/21/11 at 162-63, 170-71. In the base
ment, they threw a couch cushion on the floor, WP sat on it, and they rebound his feet with
hard plastic and rope, and tied him to a pole with rope around his waist and chest.
T.9/20/11 at 38, 39-43; T.9/21/11 at 171. WP would "fade a bit" at times, slump, and his
weight would loosen the rope around his chest. T.9/20/11 at 48.

Overnight, the defendant and Hayes decided to take JHP to the bank to withdraw
$15,000, thinking that amount would not raise a "red flag" at the bank. T.9/21/11 at 161-62;
174-76. They planned to leave to arrive when the bank opened at nine. Id. at 176, 180.
At about 6:45 a.m., the defendant and Hayes made JHP call WP's office to say he
was ill and would not be in that morning. T.9/19/11 at 62-65; T.9/20/11 at 45; T.9/21/11 at
173-74. WP heard that conversation and heard her tell the intruders she would have to get
dressed and get WP's checkbook and some identification. T.9/20/11 at 43. 47. JHP stayed
downstairs, tied but not tied to furniture, until they went to the bank. T.9/21/11 at 183.
While they waited for the bank to open, Hayes found one gallon bottles of windshield
washer fluid in the garage and drained them in the kitchen sink. T.9/21/11 at 181; T.9/20/11
at 65-66. At about 8:00 a.m., Hayes left in the family's Chrysler Pacifica, leaving the
defendant in the house. T.9/20/11 at 46; T.9/21/11 at 177, 181. Hayes went to a gas station
in Cheshire to fill the bottles with gas; T9/27/11 at 145-46; T.9/28/11 at 57-64; returned, and
put four containers of gasoline in the garage. T.9/21/11 at 182.
At about 9:00 a.m., Hayes untied JHP, and drove her in the Pacifica to Bank of
America at Maplecroft Plaza in Cheshire. T.9/20/11 at 47; T.9/21/11 at 184-85. On the way,
Hayes called the defendant, "giving [him] updates of where they were ..." T.9/22/11 at 18.
While Hayes was with JHP at the bank, the defendant anally raped MP. T.9/22/11 at
116-18; T9/29/11 at 60; 108-09. The defendant also took six photographs of MP with his
cell phone, and told Hayes that the defendant would send them to show to JHP if she failed
to cooperate. T.9/22/11 at 16; T.9/26/11 at 63. 65; T.9/28/11 at 45-46, 66-69; S.Ex. 209.

Shortly after the Bank of America opened, JHP went to the teller window of Kristin
Makhzangi. T.9/19/11 at 70, 73, 92. JHP asked to withdraw $15,000 from a joint savings
account. Id at 74. When JHP did not have the correct identification for that account and

there was insufficient money in other accounts, JHP told the teller that she needed to take
the money out because two men had her family hostage at her house. Id. at 74-75. Makh
zangi called branch manager Mary Lyons to her window and informed her of the situation.
Id. at 75-76. JHP then produced her wallet, showed Lyons photographs of her daughters;
Lyons believed her and believed she was who she said she was. T.9/19/11 at 94; T.9/20/11
at 135. Lyons approved removal of the funds from the home equity line of credit. T.9/19/11
at 75-76, 96. Makhzangi then entered the bank's money vault, retrieved three straps of
fifties, each of which contained $5,000, and handed JHP the money. T.9/19/11 at 77-79,
96; see S.Ex. 4 (bank video). JHP said not to tell anyone because it was important that she
get the money back to her home; she said if they called the police the intruders would kill
her family. T.9/19/11 at 97; T.9/20/11 at 129. Nonetheless, shortly after JHP left the bank,
Lyons called 911 and reported the incident to the police. T.9/19/11 at 84, 96-97. After JHP
left, Makhzangi looked out the window in the vault, and saw JHP waiting for someone; she
observed a van come and pick her up. T.9/19/11 at 80-82. She saw JHP get into the pas
senger seat; there was one other person, a white male, in the van. T.9/19/11 at 83.

Hayes and JHP returned from the bank and the defendant bound JHP and placed
her on the couch in the living room. T.9/22/11 at 20-22; T.9/26/11 at 187.
After the 911 call about a possible hostage situation at JHP's residence, numerous
Cheshire police officers responded to the area, established a perimeter around the house,
set up blockades with patrol cars at nearby intersections, and began watching the house for
signs of activity. T.9/19/11 at 145-46; T.9/20/11 at 94-99; T.9/20/11 at 127-32; T.9/21/11 at
31-35, 117-19. Initially, it was very quiet. T.9/20/11 at 99; 134-36.
 Hayes went into the living roonn and raped and strangled JHP, See T.9/22/11 at 25-
26; T.9/26/11 at 39 (Hayes admitted to raping JHP).
WP, who was still tied to the pole in the basement, heard the garage door open and
a car pull in, followed by three loud thumps as if someone were throwing something very
heavy on the floor. T.9/20/11 at 47. WP heard moaning that he thought was his wife, and
WP "yelled up, hey." Id. The defendant said, "don't worry, everything will be over in a cou
ple of minutes." Id. According to WP, the voice was much more serious than before, much
more sinister. Id. at 48. Immediately after hearing the sinister voice, WP "heard a funny
noise that sounded almost like spraying, sort of like shh, ssh, ssh. I couldn't - that's what it
sounded like. I couldn't imagine what was making it." Id.
WP determined that he needed help, and was able to free his hands and untie the
rope around his chest. T.9/20/11 at 48-49. Unable to free his feet and weak from the loss of

blood, he concluded he was no match for two men with a gun. Id. at 48-49. He decided to
try to get to the house of David Simcik, his next-door-neighbor. Id. at 49. WP hopped up the
hatchway stairs, out of the house, and toward his neighbor's house. Id.
While Hayes was in the living room killing JHP, the defendant heard a noise from the
Bilco door in the basement. T.9/22/11 at 25. The defendant screamed at Hayes that WP
had taken off, and when Hayes came to him, the defendant saw JHP dead in the living
room. Id. The defendant ran to the basement and determined that WP had in fact left

through the Bilco door. Id. at 27. Both the defendant and Hayes began pouring the gasoline
around the house; T.9/22/11 at 23-26; T.9/29/11 at 108-10; T.10/3/11 at 76-79; and one of
them lit a match setting the house on fire. T.9/22/11 at 36-37.
After getting outside, WP fell, stood and fell again, began crawling, then "rolled"
across the lawn, yelling out "Dave." T.9/20/11 at 49-50, 136. Upon reaching the Simcik gar
age, WP began banging on the garage door with his hand and calling "Dave." T.9/20/11 at
50, 54. The garage door opened and Simcik saw WP. T.9/19/11 at 130, T.9/20/11 at 54.
WP asked him to call 911. T.9/19/11 at 130; T.9/20/11 at 54.
 Shortly thereafter, Officer Thomas Wright, a member of the Cheshire Police Depart
ment's Special Response Team ("SRT"), appeared in the driveway and approached WP
with his rifle to his shoulder. T.9/19/11 at 132, 145, 153; T.9/20/11 at 55. Detective Dennis

Boucher Boucher arrived, asked if anyone was in the house, and WP said several times,

"the girls." Id at 55. Moments later, an ambulance arrived and rushed WP to Saint Mary's

Hospital, where doctors treated him for serious head injuries. Id. at 56, 62-64.

At about the time that officers heard someone calling "Dave," the defendant ran in
the driveway, threw a bag into the Pacifica, ran back to the house and then both Hayes and

the defendant emerged and ran to the car. T.9/20/11 at 99-100, 136-38; T.9/21/11 at 118-

19; T.9/22/11 at 28. 34, 36-37; T.9/26/11 at 187. The defendant got in the driver's side.

Hayes in the passenger side. T.9/20/11 at 137; T.9/22/11 at 36-37. As the Pacifica backed

out of the driveway, Captain Robert Vignola attempted to block its path with his police car.

T.9/20/11 at 100; 137-38; T.9/22/11 at 37. The Pacifica hit the car in the passenger side at

a high rate of speed. T.9/20/11 at 100-01, 137-38; T.9/22/11 at 37-38. The police car got

pushed back, the Pacifica did a looping 180, and wound up on a stone wall. T.9/19/11 at
157-58; T.9/20/11 at 100-01, 138-39; T.9/21/11 at 120-21; T.9/22/11 at 37.

Vignola and his partner, Detective Boucher, exited, drew their weapons and ap

proached the Pacifica while repeatedly commanding the occupants to put their hands up.
T.9/20/11 at 139-40. Sergeant Phillip Giampietro simultaneously approached the Pacifica
with his weapon drawn. Id. at 103. Instead, the Pacifica accelerated fonward and sped off in

the direction of one of the roadblocks, nearly hitting Sergeant Chis Cote. Id. at 103-04, 140.
Detective Joseph Vitello and other cruisers pursued the Pacifica. T.9/21/11 at 122.

Moments later, the Pacifica approached the intersection where Officer Jeffrey Suth

erland and Sergeant Cote had parked their cars "nose to nose" in a "V formation" to form a
roadblock. T.9/21/11 at 34-36. The Pacifica accelerated and crashed into the roadblock,

heavily damaging the cruisers. T.9/21/11 at 35-38, 123; T.9/22/11 at 39. When Sutherland

saw the driver's door open, he aimed his rifle and ordered the defendant to show his hands.
T.9/21/11 at 38. Once the defendant exited, he was ordered to lie on his stomach, and

other officers approached and secured him. Id. at 38-39. Detectives Joseph Vitello and Ken
Novi approached the passenger side and ordered Hayes out of the vehicle. Id. at 125-26.
Hayes ultimately exited and was placed in a prone position. T.9/21/11 at 125-26; T.9/26/11
at 24. When Vitello observed a handgun in Hayes' back belt line, he removed the weapon,
a BB gun resembling a 9 millimeter semi-automatic. T.9/21/11 at 126; T.9/26/11 at 29-30.

When Vitello asked Hayes whether there were any other people In the residence, Hayes
said several times, "I don't know, things just got out of control." T.9/21/11 at 127. As the de
fendant was being walked to a cruiser, Vitello asked the defendant his name, and realized
he knew the defendant from prior contacts. Id. at 128. Vitello stopped the defendant by
grabbing the front of his shirt, and asked him if there were other victims in the house. Id. at

129. The defendant said there were three, that the woman may be dead, strangled - point
ing to Hayes - and two girls. T.9/21/11 at 129; T.9/22/11 at 39-40.
At about the time that the Pacifica crashed into the roadblock, Captain Vignola and
Sergeant Giampietro turned to the house and saw large plumes of smoke emanating from
the rear sun porch. T.9/20/11 at 105, 141. Vignola looked into the sun porch and observed
a fire going through the house. T.9/20/11 at 141-42. Using his police radio, Vignola re
quested the fire department. Id. at 141-42. Vignola, Giampietro and other officers attempt-
ted to enter the house through the sun porch as well as the front door, but by then the fire
was out of control and heat, flames, and smoke made entry impossible. T.9/19/11 at 160-
62; T.9/20/11 at 106-10; 142-43.

Shortly thereafter, Cheshire firefighters arrived and extinguished the fire. T.9/21/11
at 84-90. While fighting the fire, Timothy Wysoczanski, a volunteer with the Cheshire Fire
Department, encountered JHP's charred body on the first floor. T.9/21/11 at 77, 90-91, 131.
Rick Trocchi, another volunteer, encountered HP's body at the top of the stairs. T.9/21/11
at 54, 62-63, 132, 101-02. Upon entering an upstairs bedroom, Cheshire police officers
found MP's body. Id. at 103-04.
 B. The Defendant's Statement

At 1:18 p.m. on July 23, Detective Vitello began taking the defendant's statement.
T.9/21/11 at 137. Vitello talked with the defendant for about three hours, taking notes; he
asked the defendant to write down his statement, and, when it took the defendant about 30

minutes to write one page, asked the defendant to give a taped statement, to which the de
fendant agreed. Id. at 140-43. They started the story over again at the beginning. Id, at 144;
see S.Ex. 188B, 188C (CDs of statement); 189B (transcript of statement).
The defendant related seeing JHP and MP at the Stop & Shop, following them home
and, with Hayes, breaking into the house. T.9/21/11 at 150-54. After beating and restraining
WP; id. at 154-55; the defendant stated with respect to MP:
I had locked eyes with the, the youngest daughter. I was kind of taken back
by how calm she was being, and she had this look on her face that she
understood, like, you know, that, yeah, we were here, and we were invading
her home, and that she understood, like she seemed to have this look on her,
you know, that she understood that we, we wouldn't hurt them, you know,
we'd just be on our way, and that sort of caught me off guard.

Id. at 162. Later, after tying MP up in her room, and while Hayes was at the bank with JHP,
I stopped at the youngest daughter, I noticed that she was, since being separ
ated from her mom earlier, she was a lot more, she, she was a lot more
stressed out than she was earlier. ... and um, was sweating profusely on her
bed. I went back downstairs and got her a glass of water, brought that back
up to her. I untied her hands and I asked if she wanted something to drink.
The sleeping bag that she used as a bedspread and the top sheet. I took off
and threw it off to the side because they were soaking wet. ... And then when
she was done with the glass of water, I, I let her lay back down without tying
her hands so that she was a little more comfortable. ... I felt comfortable not
tying her up as she was very well-behaved, very compliant. ... [W]e just
talked about things, about her music and like whatnot....

Id. at 168-69.

As dawn approached, the defendant began getting annoyed with Hayes because he
was walking around in front of the windows. Id. at 175.

I got to the point where I was getting so frustrated, that I just went back up
stairs again to check on the daughters and began, struck up a conversation
with KK. Um, got her some more water. She had needed to go to the bath-
 room, so I untied her and allowed her to use the bathroom in the master bed
room. ... When she was done, she came back into her room where I then
restrained her feet, but, you know, let her, her hands be where they were pre
viously. I also went to go give some water to the oldest daughter, but she
wasn't really that thirsty, which was fine, you know.

T.9/21/11 at 175-76. KK was MP's nickname. Id. at 173-74, 185-86.

The defendant asserted that Hayes said that they were going to need to get gaso
line, though the defendant professed to be surprised
that gasoline was even a factor in what was going on here. We were just sup-
I posed to get the money and get out, and he was going on, and on, and on
about DNA and, and even a drop of sweat or a hair falling out of your head is
enough to put us in jail because they have our DNA on record.
He had first mentioned that we would take the occupants of the home with us,
um, in their vehicles, and leave the house burning in their wake. I'm a little
stunned and perplexed about the whole situation and he went back down
stairs and I went into KK's room.

About 15 minutes later Steve came back and he motioned to me to go back

into the office with him and he began ranting and raving about DNA, and he
was mad at me because I had on several occasions accidentally used his
name in front of the occupants in the house and I, all of a sudden, you know,
we got to kill them.

T.9/21/11 at 177. The defendant asserted that he opposed what Hayes planned to do.
[K]ill the, the family and then burn the house down on top of them. Um, that
was, that was not in - that was not the plan. I'm, I'm not killing anyone. You
know, that's it, that's not how it's going down. Like, we were here simply for
the money, get in and get out, you know, it's almost 9:00 o'clock, and why,
why you bugging out now, you know. Plus, then I had gotten on his case, if he
was so worried about DNA, why was he walking around without his gloves on
now. ... Yeah, yeah, yeah, he had removed his gloves. And I was like, you
know, what, what are you doing? ... I had gloves on the entire time.

Id. at 177-78. Hayes did not care that he said 'Tm not killing anybody." Id. at 180.
At about 8:00 a.m, after Hayes first mentioned burning down the house, he left the
house to get gasoline, leaving the defendant alone in the house with the victims. T.9/21/11
at 181. Hayes called the defendant asking if he knew where a gas station was on Main
Street. Id. at 182. About 15 to 20 minutes later, Hayes called to say he was in Waterbury,
apparently had the gas and needed directions back to Cheshire. Id. at 182.
 Later, while Hayes was taking JHP to the bank, the defendant untied HP, let her go
to the bathroom and then retied her. T.9/21/11 at 184-85.

[T]hen I went into KK's room and began, sat down and we were talking about,
just, you know, shooting the shit, 1guess, you know, just to pass the time.
Q How old do you think KK is?
A Somewhere between 14 and 16 possibly.
j Q And the other sister you thought was how old?
A Between 18 and 19. ...

Q Okay. You're talking to KK about general things?

A Yeah, things, school and summer plans, and. you know, stuff like that,
boredom sometimes, um, obviously, not mine. ... And then one thing led to
another and I ended up having or performing oral sex on her, on KK. ...
Q Did you do that while she was tied?
A Um. yes.
Q Was it against her will?
A Her, her hands were tied, but her feet weren't. ... Um. it started off as
against her will, and then like, she wasn't like resisting or anything, so 1just
kept doing it, you know.

T.9/21/11 at 185-86. "[Ajbout five minutes or so, she, 1 had let her get dressed again, but
before she did that, she asked if she could take a shower in the master bedroom shower."

T.9/22/11 at 15.

Q Now, when you said you let her get dressed again, how, how was it she
came upon being undressed, because you originally said she was dressed?
A She, I had, I used a pair of scissors and like, cut her, her shirt off and her
skirt off.

Q Was that for the purpose of having sex with her or was there another
reason you did it?
A For the purpose of having sex. ... [W]ell, let me rephrase that. Like I didn't,
my purpose wasn't to have like, actual like, sex with her, just oral sex.
I

T.9/22/11 at 15. The defendant stated he ejaculated on MP's stomach after he performed
I

oral sex, which was the reason she said "yes, please" when he asked her if she wanted to
take a shower. Id. at 16-17. The defendant took pictures of MP with his cell phone. Id at
16. After she dressed, he retied MP's feet, but not her hands. Id at 18.
 While Hayes was driving JHP to the bank, he kept calling the defendant to give him
updates, and the defendant believed that it was a show, that Hayes' statement that "she

was very well aware of the fact that she needs to comply or things could go very badly,"
was to convince JHP to cooperate. T.9/22/11 at 19.

The defendant stated that, after Hayes returned to the house, he and Hayes argued
about whether to kill the occupants of the house and burn it down. T.9/22/11 at 22-24.

Hayes was upset that the defendant had used Hayes" first name and was "going on and on
about DNA." Id at 22. To the defendant's knowledge, Hayes did not have sexual relations

with JHP; "[i]f anyone had anything, he would not have the most to worry about DNA, it
would have been me. Um, but I wasn't worried about it because she had taken a shower."

Id. at 22-23. When the defendant objected to the killings, Hayes decided to strangle all
three himself. Id, at 24. The defendant insisted that he would kill no one. Id. at 22-24.

We're going back and forth about, he's like, well, then, you know, I'll kill the
two daughters and you can kill the mom. I was like. I'm not killing anyone. I
was like, I don't know how to put it more matter of factly, there's, no one's
dying by my hand today. There, that's not going to happen. It's, it can't.

T.9/22/11 at 23. Hayes then was In the living room for about fifteen minutes and when de
fendant looked in, he saw JHP, with purple face and protruding tongue, on the floor with her
pants around her ankles. Id. at 25-26.

Once the two ascertained that WP had escaped, the defendant insisted they had to
leave immediately. T.9/22/11 at 27-28. Hayes went to the garage and, on return, began
pouring gasoline on the kitchen floor and through the downstairs toward the stairs. Id. at 28.
He said that Hayes then went upstairs. Id. at 29.

I followed him up the stairs, cause I, I couldn't understand like, I was like, you
can't seriously be, be contemplating burning these, these two girls alive. ... I
just like, that's unconscionable, like. ... This is, it's really unreal. It's just not
what - you can't do that. It's, you just can't, and I was ... a little relieved, well,
not relieved, but that he had not poured it in the bedrooms, but he had poured
it up on the stairway, down the hallway, and into the master bedroom.
Q How do you know that?
A 'cause he was walking out of the master bedroom and you could see the
gasoline on the carpet.
Q Leading back to which bedroom?
A The master bedroom which is in the back. ... I, he, he walked out of the
master bedroom, walked past me, back to the stairs. I went to KK's room,
there was no gasoline in there, she was still in her bed, I -
Q She's still alive?

A Oh, yeah, absolutely.

Q Okay. Her face is covered?
A Oh, yeah, the pillowcase was kept over her face. ... Then I closed the
door and then I went down to the back towards the stainA/ay, then past the
oldest daughter's room. She too was sitting in her room tied to her bed, like
she was previously, and I closed that door and I went downstairs.
DETECTIVE MEDINA: Is she still alive?

THE [DEFENDANT]: Absolutely.

BY DETECTIVE VITELLO:

Q Why did you close the doors?

A I, I, I, I can't imagine anyone being bur, burned alive. You know, so I, I
thought, I, I, I fucked up. You know, I got myself in this horrible position, but,
you know, they did every - they did, they did what they were supposed to do.
There was no reason for them to die. You know, they were compliant the
entire way, both, you know, very bright young ladies, and even the mother
shouldn't have died, she didn't - she went out of her way to. to be, you know
... [c]ompliant to the T, like, you know, no talk back, no, no nothing, and why
is this happening? Like, I, I don't understand this, this isn't the plan. We were
supposed to just get the money and get out, like, hey, they haven't seen our
faces. So, what, I fucked up, you know, I used your name, there's a million
Steves in the world. ... I'm trying to buy some time, you know, and -
Q But they're tied up, why didn't you untie them?
A I didn't even think about untying them, like for, for, for whatever stupid rea
son, like it just didn't cross my mind, like when - ...
Q But you didn't untie them, why?
A I, I didn't untie them. Well, in retrospect, you know, I should have, but now
in retrospect, like I shouldn't have even fucking been there in the first place.
... But I, I, I get downstairs, and, you know, I was, and I'm like yelling at
Steve, we got to, it's been already five minutes now and, you know, I'm confi
dent, you know, there's like an anny of police officers right outside the door
waiting to open fire on me as I open the door.
T.9/22/11 at 29-33.

The defendant went outside to the car, then noticed that Hayes was not behind him.
T.9/22/11 at 34. He went back into the house to find Hayes racing up the stairs, and then
Hayes came racing back down and threw an empty bottle into the kitchen. Id at 34-35. The
defendant screamed that they needed to leave. Id. at 35. The defendant observed Hayes
trying to light a match. Id. at 35. Hayes got a match lit, Hayes flicked it Into a puddle in the

kitchen and the kitchen "just erupts." Id. at 36. The defendant saw fire travel down the front
hallway toward the stairway.^ Id. at 36. The defendant raced out the door, jumped into the
car and, as he started it, Hayes ran and jumped into the passenger side. Id. at 37.
At the conclusion of the statement, the defendant said

It wasn't supposed to be like this, it was strictly, strictly go to the bank

and leave.

Q As far as your statement, your statement's been truthful that, it's - you're
not saying that you strangled anybody, and you're not saying you, you lit the
match, you're not saying that you poured the gas?
A Right.
Q But, obviously, you were there, you did all the other things that you, you
admit to assaulting the father?
A 1,1,1 did assault the father.
Q And you had sexual contact with the daughter?
A Yes. ... So, I, it's, I, I adamantly deny that any kind of, of strangulation or
any, any of that.
Q Did you help bind them up, tying them up, tie them up?
A Yes, I admit that I did.
Q You admitted freely to that?
A Yeah.

Q Okay.

^ The defendant initially said that he had the key and that, as he started the car,
Hayes came around the corner, trying to light a match. T.9/22/11 at 35. Thereafter, he
stated that he was in the house when Hayes lit the match, and they had to race out of the
house as it erupted into flames. Id. at 36-37.
 DETECTIVE MEDINA: And shutting the doors?
[THE DEFENDANT]: When I go back in to shut the doors, I was hoping
to buy them time, you know, obviously.
DETECTIVE MEDINA; You know they're alive in the house.
[THE DEFENDANT]: Obviously, I should have done better.

T.9/22/11 at 42-43.

0. The Defendant's Case

The defendant presented evidence that he could have gotten petroleum products on
his clothes while working for Michael Ranno on July 22. T. 10/5/11 at 7-13; 19; 33-43.
The defendant presented Leo Shea, PhD in psychology, who examined the defend
ant, and, among other things, opined that due to specific deficits in his background,
he overvalues the belief that he could [perform under pressure and make a
decision in a quick period of time], that's one problem. He is not aware that he
does have the deficits, and it's kind of a grandiose way of looking at things,
that he could do things when he really can't. So, with the idea of the slow pro
cessing speed, that he makes poor decisions, really some very bad decisions,
as you could see in the Iowa Gambling Test, as well as on the other executive
functioning test where he is below normal.

T.10/5/11 at 147. Although Dr. Shea believed the defendant intended to break in to the
house, he could not give an opinion on whether the defendant intended to commit the sub
sequent crimes.'* T.I 0/5/11 at 178-79.
D. Forensic Investigation

Associate medical examiner Susan Williams performed the autopsy on JHP's body.

Because JHP's face was "burned beyond recognition," she had to be identified by dental
records. T.9/29/11 at 8. Based on her findings that JHP's ainways contained no black sooty

materials and that her blood contained no carbon monoxide. Dr. Williams determined that

JHP was not alive at the time of the fire and, therefore, smoke inhalation did not cause her

In the fact section of his brief, the defendant sets forth family history and
psychological evidence which was presented during the penalty phase and was not before
the jury when deciding his guilt. DB.1-6.
death. Id at 15-16. Dr. Williams opined that JHP's death was caused by "asphyxia due to
strangulation." T.9/29/11 at 23; see id. at 17, 20-21. Due to the condition of JHP's body, it

was not possible to determine if she was strangled manually or by ligature. Id. at 25-26.
Dr. Williams also took samples of JHP's oral, vaginal and anal mucosa. T.9/29/11 at
26-27. Sperm was found in the vaginal smear. Id. at 60. The defendant was excluded as a
contributor to the vaginal smear, and JHP and Hayes were included as contributors. Id. at

115-16. Hayes and JHP were included as contributors to the swab taken from the penis of

Hayes; the defendant was eliminated as a contributor. Id. at 113-14.

Associate medical examiner Malka Shah performed HP's autopsy. "[HP] had, she

had burns present all over her body ..." T.9/26/11 at 157. Dr. Shah found soot in HP's
nose, oral cavity, lungs and bronchi and determined that the cause of death was asphyxia

due to smoke inhalation. Id. at 150, 158-59. There was no evidence that HP was sexually

assaulted. Id. at 167.

Harold Wayne Carver II, Connecticut's chief pathologist, performed the autopsy of

MP. T.9/28/11 at 83. Dr. Carver stated that MP was eleven years old and weighed 124

pounds. Id. at 85. MP's body had considerable heat damage to her skin. Id. at 85-88. Dr.
Carver found "soot in [MP's] airways," and evidence of carbon monoxide in her blood and

concluded that MP died of smoke inhalation. Id. at 93-95.

Dr. Carver detected no injury to MP's rectum and said that he would not necessarily
expect to find injury if a penis had been inserted. T.9/28/11 at 103. MP's anal samples were

positive for sperm and semen. Id. at 101-04; T9/29/11 at 60. After DNA testing, the

defendant was included as a contributor to MP's anal samples. T.9/29/11 at 108-10 (ex
pected frequency of individuals who could be contributor is less than one in seven billion).

Samples from the defendant's penis showed sperm; id. at 68; testing eliminated MP as the
source of the DNA and was consistent with the defendant being the source. Id. at 110-11.

Blood stains on the defendant's sweatshirt were consistent with having come from
WP. T.9/29/11 at 106-07. When the defendant was arrested, he was wearing gloves which
police seized after he gave his statement. T.9/26/11 at 38, 59-60. The gloves tested nega
tive for blood and gasoline. T.9/29/11 at 50; T.10/3/11 at 79, 93. The defendant's boots,
pants and sw^eatshirt had a substance consistent w/ith gasoline. T.10/3/11 at 76-79.
On July 23, 2007, Detective Paul Makuc investigated the fire. T.9/29/11 at 135;
T.9/30/11 at 19-59. An ignitable fluid consistent with gasoline had been poured in the down
stairs family room, on the stairs, in the second floor hallway and in the girls' bedrooms. Id.
at 77-81. Makuc concluded that the fire was intentionally set. Id. at 77. With respect MP's
bedroom, Makuc determined

that the liquid pour traverses her body and affected her clothing and her flesh
as part its path of travel on the top of the bed. And it severely affected her body
and her clothing during that travel.

Id. at 37. In HP's bedroom, he found,

just as in [MPJ's room, that pattern extended up the side of the bed so too in
[HP]'s room did that pattern of, um, burning and - and charring extend up onto
the bed as well as the edge of the - um, the edges of the bed including the
pillow area of the bed and the foot of the bed where the comforter is burned.

Id. at 45. That pattern was "absolutely" consistent with accelerant being poured on the bed.
Id. at 46. He also concluded that the fire was caused by the ignition of an ignitable fluid that
exhibited a continuous pour pattern, a conclusion that does not exclude the possibility that
more than one person was pouring the fluid. Id. at 82. "[W]hile a liquid will have vapors that
will expand so too is liquid a fluid that will flow together and essentially pull [pool?] in maybe
low area of... a hallway or a stairwell or a floor area. That liquid is fluid. It's - it will be - it
could be joined together in a continuous manner." Id. at 82. That it was a continuous pour
also does not exclude the possibility that more than one container was used in pouring the
gasoline. Id. at 82-83. The remains of three window-washer-fluid containers, which smelled
of gasoline, were found in burned areas of the home, Id. at 23-27, 62.
 ARGUMENT

I. THE TRIAL COURT PROPERLY DENIED THE DEFENDANTS MOTIONS FOR

CHANGE OF VENUE BECAUSE THE DEFENDANT FAILED TO ESTABLISH
THAT, DUE TO ADVERSE PRETRIAL PUBLICITY, IT WOULD BE NEARLY
IMPOSSIBLE TO SELECT A FAIR JURY, AND THE PARTIES WERE ABLE TO
SELECT A FAIR AND IMPARTIAL JURY

The defendant claims that the trial court erred when it denied the defendant's (1)
Motion For Change Of Venue, dated February 4, 2011; (2) Motions To Sequester Jury
dated February 24, 2011 and September 12, 2011; (3) Motion To Continue Jury Selection
due to comments of Senator Prague, dated May 17, 2011; (4) Motion To Strike The Jury
Panel And For A Change of Venue dated September 15, 2011; (5) Motions To Excuse
Tainted Jury Panels, dated April 12, 2011, April 20, 2011 and April 27, 2011; and (6) Motion
For A New Trial. DB.11. All of the defendant's claims pertain to the impact of pretrial publi
city on his ability to select a fair and impartial jury with the exception of his claims regarding
Prague's comments and tainted panels. The defendant briefs only a claim challenging the
denial of the motions to change venue; see DB.35 et seq.; thus, the other claims of error
should not be reviewed due to inadequate briefing.^ State v. T.R.D., 286 Conn. 191, 214
n.18 (2008). To the extent the defendant refers to the other rulings as evidence of inherent
prejudice from pretrial publicity, the state will address the bases of these claims in that dis
cussion. The defendant cannot prevail. Because the defendant failed to establish the ex
treme circumstance that, due to adverse pretrial publicity, it would be nearly impossible to
select a fair jury, and because the parties were able to select a fair and impartial jury, the
trial court properly denied the defendant's motions for change of venue.

®The defendant may not use his reply brief to present argument on this or any ofthe
other issues the state claims are inadequately briefed; Sfafe v. Peeler, 271 Conn. 338, 372
n.36 (2004), cert, denied, 546 U.S. 845 (2005); because the state would be prejudiced if
the defendant were allowed to use the reply brief to correct the deficiencies in his main
brief. See State v. O'Brien-Veader, 318 Conn. 514, 523 n.7 (2015).
 A. Applicable Law Respecting Change of Venue
In requesting a change of venue, a defendant bears the burden of showing that
he could not othenwise receive a fair and impartial trial. The trial court exercises
its discretion in deciding whether to grant such a change of venue. ... The trial
court's discretion is governed by Practice Book [§ 41-23], which provides: "Upon
motion of the prosecuting authority or the defendant, or upon his own motion,
the judicial authority may order that any pending criminal matter be transferred
to any other court location: (1) If the judicial authority is satisfied that a fair and
impartial trial cannot be had where the case is pending...." ... Despite the broad
discretion vested in the trial court in considering such a motion, its denial has
constitutional implications and appellate review requires an independent evalu
ation of the circumstances upon which the claim of an unfair trial is based.

(Citations and internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 222
(2003), cert, denied. 541 U.S. 908 (2004).
The sixth amendment guarantees the right to trial by an impartial jury. Skilling v.
U.S., 561 U.S. 358, 377 (2010); Irvin v. Dowd, 366 U.S. 717, 722 (1961). "The theory of our
[trial] system is that the conclusions to be reached in a case will be induced only by
evidence and argument in open court, and not by any outside influence, whether of private
talk or public print." (Internal quotation marks omitted.) Skilling, 561 U.S. at 378-79.
To prevail on appeal on grounds of prejudicial pretrial publicity, a defendant gener
ally must prove actual prejudice. He may, In "extreme circumstances," instead show that
"there has been Inherently prejudicial publicity such as to make the possibility of prejudice
highly likely or almost unavoidable." State v. Reynolds, 264 Conn, at 222-23.
A defendant cannot rely, however, on the mere fact of extensive pretrial news
coverage to establish the existence of inherently prejudicial publicity.... Rather,
[t]he defendant must demonstrate that the publicity was so inflammatory or in
accurate that it created a trial atmosphere utterly corrupted by press coverage.

(Emphasis added, citations and Internal quotation marks omitted.) State v. Reynolds, 264
Conn, at 222-23; Dobbert Florida, 432 U.S. 282, 303 (1977) (defendant "has simply
shown that the community was made well aware of the charges against him and asks us on
that basis to presume unfairness of constitutional magnitude at his trial. This we will not do
in the absence of a 'trial atmosphere ... utterly corrupted by press coverage'").
 "Because most cases of consequence garner at least some pretrial publicity," Skill-
ing, 561 U.S. at 379; reviewing courts must be mindful that "pretrial publicity - even perva
sive, adverse publicity - does not inevitably lead to an unfair trial." Nebraska Press Assn. v.
Stuart, 427 U.S. 539, 554 (1976). "Prominence does not necessarily produce prejudice,
and juror impartiality ... does not require ignorance." (Emphasis in original.) SkUling, 561
U.S. at 381; see State v. Marra, 195 Conn. 421, 430 (1985) (suggesting that notoriety of
^defendant is insufficient to establish presumptive prejudice).
To determine whether a case is an extreme circumstance of presumptive prejudice,
"[t]he relevant question is not whether the community remembered the case, but whether
the jurors ... had such fixed opinions that they could not judge impartially the guilt of the
defendant." (Emphasis added). Ration v. Yount. 467 U.S. 1025, 1035 (1984).
If, in this age of instant, mass communication, [courts] were to automatically dis
qualify persons who have heard about an alleged crime from serving as a juror,
the inevitable result would be that truly heinous or notorious acts will go un
punished. The law does not prohibit the informed citizen from participating in the
affairs of justice. In prominent cases of national concern, [courts] cannot allow
widespread publicity concerning these matters to paralyze our system of justice.
Calleyv. Callaway, 519 F.2d 184, 210 (5th Cir. 1975). Hence, "Qjurors ... need not enter the
box with empty heads in order to determine the facts impartially. It is sufficient if the juror[s],
I

can lay aside [their] impression[s] or opinion[s] and render a verdict based on the evidence,
presented in court." (Internal quotation marks omitted.) Skilling, 561 U.S. at 398-99; accord ,
State V. Griffin, 251 Conn. 671, 696 (1999).
Accordingly, to determine whether publicity surrounding this high-profile criminal
case deprived the defendant of his right to a fair trial before an impartial jury, the reviewing
court must engage in a two-step analysis; (1) whether the publicity was so inflammatory or
inaccurate that it created a presumption of prejudice, making a fair trial impossible; or (2) if
not, whether actual prejudice nevertheless infected the jury thereby depriving the defendant
of a fair trial. Skilling, 561 U.S. at 377, 385; Reynolds, 264 Conn, at 222-23.
 B. Additional Facts and Proceedings
At pages 12-31 of the defendant's brief, he sets forth a narrative of media coverage,
but provides only one citation, In footnote 25, to ten different exhibits. Although some of the
discussion is of articles identified by date and source, a large amount of the publicity is attri
buted to "the media," DB.13. 14, 15, 17, 20, 21, 22. 23, 24. 25, 28, 28. 29, 30; or to content
being "widely reported" or "extensively reported": DB.16. 17. 18. 23. 25. 26; or presents
quotations of persons without citation to the source. See e.g. DB.13, 14, 15, 18, 25, 26.
Such briefing makes it virtually impossible for the state or this Court to assess the validity of
the defendant's characterization of the media coverage. Accordingly, this aspect of the
defendant's claim is inadequately briefed. State v. T.R.D., 286 Conn, at 214 n.18. The state
will rely on the trial court's findings regarding the nature of media coverage.
1. Motion to change venue and hearing
The defendant filed a motion for change of venue, dated February 4, 2011, and the
hearing thereon was held on February 23, 2011. The defendant asked that the trial be
moved from the New Haven Judicial District, the district containing Cheshire, to the Stam-
ford/Norwalk Judicial District. See Motion, D.App. at A248.
a. Evidence presented at hearing
Dr. Celia Lofink testified that she searched the internet for media coverage involving
the defendant, and compiled 1808 media reports containing the search terms "Komisarjev-
sky" and "[WP]" and submitted them to the court. T.2/23/11(am) at 6-17; Ct.Ex.A, Ct.Ex.A1.
Dr. Stephen Penrod, professor of psychology at John Jay College of Criminal Justice, con-
I

ducted a public opinion survey in four Connecticut jurisdictions, namely New Haven. Fair-1
field, Stamford/Norwalk and Danbury, concerning the impact on the public of pretrial publi
city about these crimes. T.2/23/11(am) at 23-33; Ct.Ex.C (report). Defense counsel select
ed the judicial districts to be polled and provided questions designed to assess qualification
for jury service. T.2/23/11(am) at 33-34, 46. Case recognition in all four jurisdictions was
the "highest numbers" Penrod had seen, ranging from 97% in Stamford to 99.5% in New
Haven. Id. at 39, 45. With respect to knowledge of facts of the case, the lowest was Dan-
 bury at 94%, and the highest was New Haven at 98%. Id. at 54-55. The survey organized
two categories of persons who believed the defendant to be guilty: the proportion of those
who recognize the case and the proportion of everyone surveyed. Id. at 91-92. For New
Haven, the proportion was 85% for both; for Stamford, it was 72% for those who recog
nized the case and 70% overall. Id. at 91-92. Penrod opined that holding the trial in Stam
ford would be the least prejudicial to the defendant. Id. at 92.

Penrod agreed "unquestionably," that the extensive voir dire used in Connecticut
was likely to develop greater knowledge of the venirepersons' attitudes than a phone sur-
I

vey. T.2/23/11(pm) at 17. Asked whether it was his opinion that a fair jury could not be sel
ected in the New Haven Judicial District, Penrod stated that he could not say it was imposs
ible, just that it was more likely that a fair trial could be had in Stamford. Id. at 26-27.
b. Argument and ruling
During argument on the motion, the parties discussed the extent to which the publi
city had been factual or sensational, and the court acknowledged that there had been some
of both. T.2/23/11(pm) at 56. The defendant pointed to a February 17 article in the Hartford
Courant, where the reporter, after observing the defendant during a court proceeding,
found it easy to believe that he had been the mastermind, a belief that went directly to his
defense. Id. at 56-57. The trial court noted that the February 17 article was available in all
jurisdictions through both print and internet. Id. at 58. The defendant further argued that the
publicity was factually inaccurate because it did not include facts the defense deemed im
portant, such as Hayes constantly called the defendant: Hayes went to get gas; Hayes
strangled JHP; Hayes had to have lit the match because the defendant was already out of
the house; and there was no gas on the defendant's gloves. Id. at 58-59.
The state countered that the defendant had the burden to show he could not get a
fair trial in New Haven, and an opinion that it would be easier to do so in Stamford did not
meet that burden. Id. at 64-65.

The trial court dented the motion without prejudice, ruling as follows:
 At the hearing, the defendant elicited testimony from Steven Penrod, a pro
fessor of psychology at the John Jay College of Criminal Justice. Penrod tes
tified that, in early January 2011, persons working under his supervision con
ducted a telephone poll of residents of the New Haven, Fairfield, Danbury and
Stamford-Nonwalk Judicial Districts. The poil found the highest level of "case
recognition" that Penrod had ever seen, ranging from 97% in Stamford-Nor-
walk to 99.5% in New Haven. A smaller, but still substantial, percentage of
respondents - ranging from 70% in Stamford-Nonwalk to 85% in New Haven
- expressed an opinion that Komisarjevsky was guilty. (Ex. C, Table 32.)
Penrod's findings were not uniformly dismal. 70.6% of his New Haven respon
dents reported that they could render a verdict based only on the evidence.
{Id., Table 26.) When asked if they could personally be a fair and impartial
juror in the case, 32.2% of the New Haven respondents answered "definitely
yes," and an additional 18% said "probably yes." (12.7% said "not sure," and
another 2% refused to provide an answer.) {Id, Table 27.)
Penrod testified that his statistical findings had a margin of error of 5% to 6%.
A second defense witness, Celia R. Lofink, submitted a flash drive containing
1,808 media reports concerning the Komisarjevsky and Hayes cases. (Ex.
A1.) The reports had been culled from the internet by use of a Google alert
system. Although many of these reports have been printed in the New Haven
Register, many others were not. (The Hartford Courant, a statewide news
paper. has, for example extensively covered the cases in question.)
The fact that all of the reports in Ex. A1 have been obtained from the internet
is itself significant. Each report is available to internet users throughout the
world. Anecdotally, the cases have also been reported by media located
throughout the world. (Defense counsel mentioned in argument that the cases
have been reported in Russia.) More to the point, there is no doubt that the
cases have been widely reported throughout the State of Connecticut. As
mentioned, at least 97% of Connecticut residents have at least heard of them.

(Footnotes omitted). State v. Komisarjevsky, No. CR07241860, 2011 WL 1168532, at *1

(Conn. Super. Ct. Feb. 28, 2011). After setting forth the standard for the right to a trial
before an impartial jury, the trial court stated:

SkiHing recognizes that, "most cases of consequence garner at least some

pretrial publicity." [561 U.S. at 379]. However, a "presumption of prejudice,"
requiring a change of venue, "attends only the extreme case." Id., at [381].
The test for the "extreme case" remains whether the trial atmosphere been
"utterly corrupted by press coverage." [561 U.S. at 379].
The only case In which the Supreme Court has found a trial atmosphere to be
"utterly corrupted" by pretrial press coverage [FN3] is Rideau v. Louisiana,
373 U.S. 723 (1963). Rideau was tried for murder in a Louisiana parish that
had been corrupted by law enforcement officials themselves. The morning
24
j after his arrest, Rideau was filmed in his cell being "interviewed" by the Parish
Sheriff. Over the next three days, the film of this "interview" was shown on
television stations throughout the parish. Three members of the jury had seen
the film; two others were deputy sheriffs of the parish. Id, at 724-25. The
Court reversed Rideau's conviction, terming the court proceedings in question
"a hollow formality." Id, at 726.
[FN3] Other cases have involved "media interference with courtroom
proceedings during trial." Skilling [, 561 U.S. at 382 n.14.]
Id at *3. As will be discussed below in I.C.1, the trial court summarized and applied the four
factor test set forth in Skillingto the circumstances of this case. Id at *3-4.
After a careful consideration of the Skillingfactors in light of the evidence pre
sented here, the court finds that the defendant has failed to establish a pre
sumption of prejudice requiring a change of venue prior to the beginning of
the voir dire process.
The procedural posture of this case is important. This motion has been pre
sented prior to the beginning of the voir dire process. The evidence presented
does not establish that this is a case, such as Rideau, where "even the most
scrupulous voir dire would [be] 'but a hollow formality' incapable of reliably
producing an impartial jury." Skilling v. United States, [561 U.S. at 445] (Soto-
mayor, J., dissenting). This is, however, the beginning, rather than the end, of
the process. The circumstances of this case plainly require the court "to con
duct a thorough voir dire in which prospective jurors' attitudes about the case
[are] closely scrutinized." [561 U.S. at 427], {Sotomayor, J., dissenting). "[T]he
key to determining the appropriateness of a change of venue is a searching
voir dire." United States v. Sabtinani, 599 F.3d 215, 234 (2d Cir. 2010).
(Internal quotation marks and citation omitted.)
...Throughout the process, the parties will have ample opportunity to inquire
about the effects of pretrial publicity on the individuals involved.
The goal of the voir dire process is not to select twelve jurors "with empty
heads." Skilling v. United States, [561 U.S. at 398]. "It is sufficient ifthe jurors
can lay aside their impressions or opinions and render a verdict based on the
evidence presented in court." [561 U.S. at 389-99]. (Internal quotation marks,
brackets, and citation omitted.) If the voir dire process succeeds in producing
the requisite number of jurors meeting this standard, venue need not be
changed. Id. If the voir dire process does not so succeed, the motion now
before the court must be revisited in light of that experience.
For the reasons stated above, the motion is denied without prejudice.
(Footnotes omitted). Id. at *4-5.
 2. Motion to sequester jurors
On February 9, 2011, the defendant moved for sequestration of the jurors. On Feb
ruary 24, 2011. the defendant argued that massive publicity meant that the jurors would not
be able truly to isolate themselves from the community. T.2/24/11 at 88-92. The trial court
denied the motion, citing State v. Kelly, 256 Conn. 23, 34-35 (2001) and Practice Book
§ 42-22, and stated that the atmosphere was not utterly corrupted by publicity and, thus,
the predicate for sequestration had not been met. Id. at 101-03. The trial court noted that
sequestration is extreme and burdensome in light of an expected eleven-week trial, but that
the defendant could raise the issue again if something extraordinary happened at trial. Id.
at 97, 104-05. The defendant raised the issue again on September 12, 2011, just before
evidence began, arguing that the jury needed to avoid exposure to highly prejudicial mate
rial and the pressure from the number of reporters. T.9/12/11 at 20-22. The trial court den
ied the motion. Id. at 23.
I

3. Oral motions to excuse tainted panels

On April 12, 2011, as the trial court introduced the case to a new panel of venireper-
sons, the trial court stopped, asked a woman on the panel if she was all right, and excused
her. T.4/12/11 at 3. Without comment, the trial court resumed its introduction. Id. at 3. Later,
the trial court commented that the clerk, with its permission, had excused two additional
jurors. Id. at 8. Still later, after excusals for knowledge and hardship, the defendant moved
to excuse the remaining jurors due to outbursts from four. Id. at 20-21. The trial court
denied the motion, stating that counsel could inquire of those who remained about anything
they had heard. Id. at 21. Of the remaining jurors, nine were excused by the court for bias
or hardship; id. at 60-79; 97; and the defendant exercised a peremptory challenge as to the
remaining juror. Id. at 96. No juror served who was exposed to whatever outburst occurred.
On April 20, 2011, as the trial court began describing the case to a panel of venire-
persons. both the clerk and defense counsel interrupted to alert the court to two women
who were crying In the jury box. T.4/20/11 at 4. The trial court promptly excused both, one
of whom apologized and said she knew the victims. Id. at 4-5. After the trial court excused
26
those who knew parties or counsel; id. at 9-15; and who would suffer a hardship; id. at 15-
50; defense counsel moved to excuse the remaining panel because of the two venireper
sons, one who "left crying hysterically," and the other who "left sobbing." Id. at 51-52. The
trial court denied the motion, stating that counsel could question jurors about it. Id. at 52.
JM-M, who did not sit on the jury, affirmed that she had seen two women leave crying, but
believed it would not affect her. Id. at 166; see section I.B.6 below. Several venirepersons
who had been present were sua sponte dismissed by the trial court for bias. See id. at 188;
198; 200; 203, 205. RF, whom the defendant accepted and who served on the jury, had
seen the women crying, but believed it would not affect him. Id. at 233, 246. See I.B.4.h.

On April 27, 2011, during the trial court's solicitation of names of venirepersons who
might have scheduling or financial hardships, the trial court summarily excused LB.
T.4/27/11 at 23. After addressing claims of hardship; id. at 24-60; and giving the remaining
sixteen venirepersons detailed instructions; id. at 60-82; defense counsel moved to excuse

the entire panel because LB, who was pregnant, had "left crying hysterically." Id. at 82. The
trial court denied the motion, ruling that it was unclear that "the crying was due to the nature
of the case" or because she was pregnant, but that the defendant could ask questions of
the panel. Id. at 82-83. Of the remaining venirepersons interviewed that day, the trial court
dismissed two for financial hardship; id. at 91, 142; three because they could not be impar
tial; id. at 92, 94, 145; and one by agreement of the parties. Id. at 136. In addition, the de
fendant peremptorily challenged WK without first moving for dismissal for cause. Id. at 96-
109. No juror who served was selected from this panel.
4. Voir Dire

Prior to the start of jury selection, the trial court allotted each party 40 peremptory
challenges;® T.2/24/11 at 110-11; more than the amount required in a death penalty case
under General Statutes § 54-82h{a). On May 10, 2011, when the twelfth juror was selected,

The defendant moved to be granted twice the number of peremptory challenges as

the state. T.2/24/11 at 60. The trial court denied the motion. Id. at 70-72.
the state had used twenty-one challenges, the defendant twenty-eight. T.5/9/11 at 179;
T.5/10/11 at 75. On June 8. 2011, after twelve jurors and six alternates had been selected,
the defendant moved for 40 more challenges for the selection of three backup alternates.
T.6/9/11 at 156-70. By the time the trial court heard the motion, the parties had selected
two of the three backups, and the defendant had one challenge remaining. T.6/9/11 (voir
dire) at 57; D.App. at A1441. A full complement of twelve jurors, six alternates and three
backup alternates was selected by June 14, 2011, and each party had exhausted all of its
.challenges. T.6/14/11 at 127; 170. After each juror who served was accepted, the trial court
instructed that person to avoid publicity about the case. See e.g. T.3/17/11 at 137;
T.3/21/11 at 231; T.3/23/11 at 131; T.4/4/11(excerpt) at 34-35; T.4/13/11 at 148-50;
T.4/19/11 at 160-65; T.4/20/11 at 246-50; T.4/28/11 at 115-16; T.5/4/11 at 132; T.5/5/11 at
61; T.5/10/11 at 78. The process of jury selection consumed about three months.
On September 19, 2011, just before evidence began, the trial court individually
asked each juror and alternate if anything had occurred since he or she had been selected
that meant he or she could not be fair and impartial, and each juror said no. T.9/19/11 at 7-
19. The trial court dismissed the three backup alternates. Id. at 19-20.
Although the parties selected twenty-one jurors, only the first twelve jurors selected
participated in the verdicts. Accordingly, because the focus of any claim relating to jury
impartiality must be on those jurors who actually sat; see Ross v. Oklahoma, 487 U.S. 81,
86 (1988); the state limits its summary of individual voir dire to those twelve jurors,
a. MN^
When asked whether he could be fair and impartial, MN stated that although he had
read about the crime in the news and saw reports on TV when it first happened, he recog
nized that things may not be as represented in the media and that he must evaluate the
case based solely on evidence presented in court. T.3/17/11 at 92. He had read about the

^ The defendant identifies this venlreperson as "M.D." DB.56. This person was a
doctor (M.D.), but his initials are MN. T.3/17/11 at 86.
crime in the New York Times and the last news he saw was when Hayes was being tried:
he knew Hayes had been found guilty, but did not know his punishment. Id at 93. Asked
about the facts that he had gleaned from the news, he stated; "i think that the home was. I
guess, the term has been used in the media, the home was invaded, three of the four indiv

iduals were raped and killed, and the fourth individual was beaten, and then the house was

put to fire." Id. at 94. He did not recall the victims' names. Id. at 94. After defense counsel

presented an extended hypothetical of parents* assessing responsibility when an older bro

ther led a younger brother into serious misbehavior, and whether MN could consider as a

mitigating factor the younger brother being led, MN stated: "It would depend on what the
mitigating factors are. I think they have to be pretty extreme in the circumstance, at least as
I see it." Id. at 128-29. The trial court immediately told him that that was not the standard for
mitigating factors, instructed him as to the correct standard, and MN assured the court that

he could weigh the evidence fairly. Id. at 129-30.

b. TA

TA knew about the case to the extent that it was a murder that occurred in Cheshire,

that three or four people were killed and that two people were arrested. T.3/21/11 at 189.
He knew that Hayes had been arrested and sentenced to death. Id. at 190. To the defend

ant's questions, he assured him that he had learned nothing about the case from the news
that meant he could not be fair and impartial. Id. at 208. Although he had not followed the
Hayes trial at all, he knew what had happened; he could differentiate the two perpetrators,
and he knew he must decide the defendant's case on its own evidence. Id. at 209-10. He

was aware of a lot of media attention, but believed that the media have a tendency to twist
and turn things. Id. at 211. He was in school for social work with a minor in criminal justice,
and believed in the presumption of innocence. Id. at 187. 208.
c. TM-T

TM-T was a social services investigator. T.3/23/11 at 77. Asked whether the case
had been discussed among the other venirepersons while they waited for voir dire, she sta
ted that other prospective jurors said "that the police should have been there, you know,
29
right away or should have done something that day. That the two men that participated and
that they're evil, things like that." Id. at 78. She answered "no" to the trial court's question
whether those discussions would prevent her from being fair and impartial. Id. at 79. She
said other venirepersons had said that the defendants had been caught red-handed so they
were guilty but that nothing about that meant she could not be fair and impartial. Id. at 80.
She watched television news and did not read the New Haven Register much. Id. at 81-82.

From the news coverage, she understood that

the woman - the woman was followed from Stop & Shop to her residence. I
guess they waited outside and at some point, you know, they kind of scoped
out the neighborhood, the area. Later that night they broke into a basement
where [WP] was, beat him up, tied him up, went upstairs or proceeded up
stairs and raped the young girls, [JHP], beat them up, killed them, murdered
them, and set the house on fire, tried to escape. Or, excuse me, missing the
part where I guess she went to the bank to take out "x" amount of dollars or,
you know, she was being robbed.

Id. at 82. She was not sure if these facts are what happened, and she had no preconceived

ideas of the defendant's guilt. Id. at 83. She stated she would have to hear both sides. Id. at
84. She also stated that with respect to whether she had made up her mind before she
came in, if it were true "he was caught on the scene, then yes. ... I'm not sure, though. I'm

not sure. I wasn't there, so I don't know." Id. at 84. She did not necessarily believe the de
fendant was guilty - he may or may not have done what he was accused of. Id. at 84. Al
though after seeing WP on television, she believed he had suffered a great loss, and
"would feel bad[:] I would be hurting for him and with him," if he testified, the sympathy she
felt for WP would not "influence my verdict." Id. at 85, 87. She had last heard about the
case several weeks before when Hayes was convicted and got the death penalty. Id. at 91.
That news would not influence her decision in this case because it was a "[d]ifferent indivi
dual. Different, I mean, doesn't mean that he should have the same punishment. I don't
know the facts. I don't know what part, if he played a part." Id. at 91. She had spoken to her
family and work colleagues about the case when it happened, and agreed with defense
counsel that it was "a big conversation with people who live in New Haven ... [a]nd part of
that is because of the intensity or coverage of that." Id. at 95.
d. KA

KA had heard of this case, and understood a family was lost that day. T.4/4/11
(excerpt) at 2. "I understand that a family, a woman and her daughters, were murdered in
their own homes. ... The daughters were, and 1- I don't remember the details, but I know
that there was also sexual abuse to some of them, Including the daughters." Id. at 2. She
also knew that the other defendant had been found guilty and received the death penalty,
but would not feel obligated to give the defendant the same result because she did not
know details of the case or the defendant's role. Id. at 3.

e. VK

VK did not know much about the case; she was in Spain on a semester abroad
when the crime occurred. T.4/7/11 (excerpt) at 5-6. She had heard that two daughters and
their mother were murdered, the father survived, the house burned down, and there were
two suspects. Id. at 6. She stated that she did not know what the defendant's involvement

was based on what she had heard in the news; she did not know anything about the de
fendant; had never heard anything favorable, and never heard anything about his back
ground. Id. at 27. She believed she had to hear all of the evidence to make a sound judg
ment about the case. Id. at 31. She had heard other venirepersons talking about the case,
and the comments were mostly negative - "just fear for ... being picked and saying that
they could never be ... unbiased towards it and that they felt he was guilty." Id. at 31. The
case had never been a topic of discussion with her family, friends or co-workers. Id. at 32.
She believed she could put out of her mind that Hayes had been convicted and sentenced
to death, and she did not believe that the defendant automatically should get the same pun
ishment Id. at 33. She had not read anything about who did what in the house. Id. at 33.
She believed that the opinion of the community was that he was guilty, but that she could
make a sound judgment based on the evidence presented to her. Id. at 35-36.
 MB had read about the case in the paper and read "that there were two people who
broke into a home and assaulted ... [WP], and set the house on fire, and ... only one per
son escaped, and the other three perished. I think that - what I know about it is what I've
read." T.4/13/11 at 110-11. She remembered that the defendant was arrested "directly after
he - left the house." Id. at 111. She followed the trial of Hayes in the paper, and knew that
he had been found guilty and thought that he received the death penalty. Id. at 111-12. She
did not think that knowledge would affect her judgment, and she believed that she could
presume the defendant innocent. Id. at 112, 141. She did not think that the fact that Hayes
got a death sentence meant that the defendant should, because she did not know the
relative roles of the two men. Id. at 141-42.

LC stated that she only skims the local paper and does not watch television news,
and, although she had heard of the case, she had not followed it. T.4/19/11 at 136. She

knew that there was a murder in Cheshire, and that she knew there had been a trial be

cause she drove by the courthouse every day on her way to work. Id. at 137. The press in
terest would not affect her ability to be fair and impartial; "I mean the press are always go
ing to be around." Id. at 153. She recognized neither the defendant's face nor his name. Id.
at 151. Asked by defense counsel why she thought that, "notwithstanding what [she had]
heard in the press that [she] could be fair and impartial," she answered:
Partly because I haven't followed it that much so I actually - compared to
most people in Connecticut I'm probably not very knowledgeable about it. And
... I think a lot it's ... what our legal system is. I mean that is what one is sup
posed to do ... and I am a very ethical person.

Id. at 150. She "absolutely" could presume the defendant innocent, /d. at 151. Asked if she
had a sense of what the community wanted to happen to the defendant, she answered:
Well, if I say they want justice to be served I suppose that would be a plati
tude, but I ... haven't talked with anybody about it. So, ... I'm sure there ...
must be a sense in the community of wanting some sort of retribution for the
deaths of, you know, a woman and her two children.
Id. at 155. She could withstand any pressure if she thought the community thought that the
defendant should die. Id. at 155.

h. RF

RF stated that he had followed the case since "day one." T.4/20/11 at 209. If he
were to tell a stranger what happened, he would say that the victims were at a food store
and they were followed home, and then men broke in and tied them up. Id. at 210.
I think they raped the wife, I believe, and then they took her to the bank, I
believe to try and withdraw money. They came back. He tried to start a fire or
did start a fire. They killed three of them and then they tried to drive away, the
police stopped them.

Id. at 210. He was aware that Hayes had been found guilty and sentenced to death, but
could still be fair and ignore it. Id. at 211. RF last read about the case a couple of months
before when he read about the Hayes conviction. Id. at 211. Despite the fact that he had
discussed the case with co-workers and family members, he believed he could keep an
open mind and presume the defendant innocent. Id. at 213-14. He understood the concepts
of presumption of innocence and proof beyond a reasonable doubt. Id. at 223, 229, 230.
Defense counsel asked him whether he had followed the pretrial publicity closely,
and RF stated that he had "read the newspaper about it and watched some of the things on
T.V. about it." Id. at 226. He had seen the books about the crimes at Barnes and Noble,

and had flipped through the books for about 10 seconds, but never actually read a book,
and does not recall seeing pictures. Id. at 226-27.
So, having that in the back of your mind and with all the news that you've
read about this case don't you think it would be difficult to actually push all
that aside, what your parents have said, your co-workers have said and what
you've read and actually believe him to be innocent as he sits there.
A Yeah, it could be difficult.
THE COURT; And is that a difficult job you could do?
[RF]: Yeah, I think so, your Honor.

Id. at 231. He had made decisions that made people angry in the past, and concern about
the anger of others would not factor into a decision he made. Id. at 232.
 RF saw the two crying wonnen leave from the general voir dire and stated that that
would not have any effect on his ability to serve, because "I can understand them getting
emotional about it, but it didn't really affect me." Id. at 233. Returning to the issue of pretrial
publicity, defense counsel asked:

Based on everything you've read and everything that you've heard, seen on
television, before you came into today - if we asked you yesterday if you had
a preconceived idea of whether [the defendant] was guilty what would be your
answer yesterday?
A Probably I would think he was guilty from what I've read in the paper
and what I've seen on T.V.
Q Okay. And based on what you've heard and read going back to yester
day before you came in, did you have a preconceived idea not only that he
was guilty, but did you have a preconceived idea of what punishment he
should receive?
A No, not really. I never really thought much about it.
Q So, if we asked you yesterday you would have believed him to be
guilty, but you didn't have any opinion in terms of the punishment?
A Yes, that would be correct.
Q And ... notwithstanding that, that yesterday you thought he was guilty
and today you believe you could presume him to be innocent.
A Yeah, no, that wouldn't affect me.

Id. at 234-35. Asked if he knew who was responsible for "whatever" events in the house,

RF answered that he did not know the details. Id. at 236.

LK had read about the case in the news; T.4/28/11 at 64; she got her news from the

paper, tv news and CNN. Id. at 66-67. She would tell a stranger that two men went into a
house, hit WP, and the next day took the wife and mom to the bank to withdraw a sum of
money and she indicated something to the tellers who called the police. Id. at 65. She knew
there were charges of sexual assault, that the house burned down killing three and that WP
escaped. Id. at 65. She also knew that Hayes had been convicted and believed he had
been sentenced to death. Id. at 66; see also id. at 95. She affirmed that, despite knowledge

of a lot of details, she could presume the defendant innocent and base her verdict solely on
evidence at trial. Id. at 67, 92. Asked if she thought that the media coverage had been
inconsistent, LK said:
 I remember being confused about when the police came and when they
called or if there was delay or wasn't there a delay and I don't know if that
was just what the story was at the time or if I was hearing conflicting reports.

Id. at 93. She did not recall what the news had said as to who did what in the house that
I

night. Id. at 94. She believed that knowledge of the verdict rendered against Hayes would
not affect her decision in this case, because "that was what happened with him, this is for
someone else. It's an important thing to evaluate critically." Id. at 95. She also affirmed that,
if what she heard in the courtroom were different from what she heard in the news, she
could decide based on what was presented in the courtroom. Id. at 96-97. Although she
could affirm that she could presume the defendant innocent, she acknowledged that if she
had been asked the question a few days previously, she would have thought that if the
other person was convicted, the defendant was probably guilty. Id. at 100. However,
1think that everyone forms opinions whenever they, you know, read or
hear any new[s] story. I don't think that's the goal of being in - you know if it
came out six months later, you know, whatever the timeframe is and the trial
is over that he was found innocent then he is innocent, you know, but I think
we all form opinions. I still come in with the presumption of innocence.
Q Would it be accurate to say then, based on the news reports a couple
of days ago, you would have thought he was guilty of the crimes that he's
charged with, but now that you're involved in the legal process and the Judge
has instructed you on the presumption of innocence that you now believe you
can ... presume him to be innocent?
A Yes.
Q So, you had preconceived ideas, but now ... because of the situation
... you can push those aside?
A Correct.

Id. at 100-01. LK stated that she thought the community wanted justice, but she would not
be influenced by what others want. Id. at 101-02.
I don't think that I could walk away or feel at rest with myself if- if I didn't do it
the way it was supposed to be done. You know I mean these are - these are
big decisions that have to be made and ... this was a horrific crime and this is
someone's life that we're - you know sitting here discussing and I think that it
would be very important for me to do it in the way that is the law and that has
to be done. I couldn't rest with myself if I didn't.

Id. at 102.
 j. SH
SH stated that he had read early headlines about the case and perhaps a bit of fol-

low-up. T.5/4/11 at 91. "I understand a couple of guys broke into a house, they - I guess
they tried to make it look like a robbery. I believe, and they killed some people." Id. at 91.
He believed that two had been arrested and that three had died, "I think a mother and

daughter." Id. at 91-92. He had not read anything recently and was not aware that another
trial had occurred. Id. at 92. He could not remember when he had last read about the case,

stating "I do know the specifics of it, but... [y]ou know, or I believe I know." Id. at 105, 111.

He did not recognize the name Komisarjevsky. Id. at 112. When he heard about the case
on the news, he did not assume that the men who had been arrested were guilty, and had

no opinion on it. Id. at 114. He had no recollection based on the news of the roles of the

two men. Id. at 114.

k. JH

JH stated that she would tell a stranger "that I had read somewhat about it in the

newspaper, that I was not really following the case, and that it was a terrible tragedy. ...
From what I have read two individuals broke into the home of [WP] and subsequently his
wife and two daughters were killed." T.5/5/11 at 14. She remembered reading something

about a bank, but was unsure what happened; she read about sexual assaults and does
not know how the deaths occurred or how the two suspects were captured. Id. at 14. She
knew that the case of the other suspect was "settled" recently, she believed he had been
found guilty but did not know what punishment had been imposed. Id. at 15. She did not
know what the different roles of the two men had been, did not know much about the

defendant's background, and had not seen WP on television. Id. at 15. When the crimes
first happened she had discussed them within her family, but just to be very sympathetic
with the victims. Id. at 16. She sensed that the community wanted justice, but could not pre
sume to know what that could be. Id. at 17. She further stated that "definitely, yes," she

could consider the relative culpability of the two suspects as a mitigating factor. Id. at 30-
31. She stated she could put what knowledge she had acquired through publicity aside and
decide the case on the evidence presented in court. Id. at 48.
I. CA

CA read the paper regularly, mostly New York papers, although he read the New
Haven Register periodically. T.5/10/11 at 44. He watched local television news. Id at 44.
He did not often read newspaper reports about the case, and did not follow it "at all" on the
internet. Id. at 46-47. Asked what he would tell a stranger, he stated that
A Only that it was a, you know, a very very heinous crime, very--
THE COURT: - Well, I should explain, rather than adjectives, what
we're looking for is a narrative description of what you understand happened
in Cheshire that night. ...
A There was a home break-in, people were killed, a wife and daughters were
killed, the house was set on fire, and that's relatively, as far as I know, is it.

Id. at 46. He knew only basic facts about what happened inside: he understood there was a
fire, but he did not know how it started. Id. at 48. He had no impression of the defendant
based on press reports. Id. at 49. He could give the defendant the presumption of inno
cence, and, if he had been asked last week, he would have said the defendant was inno

cent. Id. at 49. Asked why, he said it was because the case had not come to trial, not

because he did not believe the press. Id. at 50. "[M]y background is that everybody
deserves a fair shot in the court not necessarily in the court of opinion or in the court of
television, newspaper, media, whatever." Id. at 50. He did not have a sense of what the

community wanted to happen to the defendant. Id. at 52.

Asked if he believed what he had seen in the press, CA stated:

Obviously, I believe the facts, 1mean, there were people that were killed and
there was a fire and so forth. Again, with my background, I've - you reserve
judgment until, you know everything is in place, it goes to a court and then
decisions are made after that and, you know, instead, like I said before,
instead of the court of public opinion, you know, I'm more of a facts person. I
want to hear everything before I make judgments.

Id. at 56. He could put all press aside when deliberating. Id. at 58.
 5. Jurors for whom trial court denied the defendant's motions
for dismissal for cause and for whom the defendant
exercised a peremptory challenge
In his brief, in support of his claim that he was denied a fair trial before an impartial
jury due to adverse pretrial publicity, the defendant identifies twelve jurors for whom the trial
court denied a challenge for cause and for whom he elected to exercise a peremptory
challenge. DB.61-72. Because the focus of any claim relating to jury impartiality must be on
those jurors who actually sat; see Ross v. Oklahoma, 487 U.S. 81, 86 (1988); the state has
limited its summary of individual voir dire to that of those twelve jurors. The defendant, in
Issue II, independently claims that the trial court erred in denying his motions to excuse for
cause. The state will address that claim in Issue II.

6. Other jurors challenged

a. JM-M

JM-M had heard about the case from the news, but did not want to know the details.
T.4/20/11 at 139-40. Asked what she would tell a stranger about the case, she stated that
two guys who had just left prison broke into a house and killed a mother and two daughters.
Id. at 140. She "did a quick peek" to learn more details and figured out when the mother
had gone to the Stop and Shop and the bank, and when the bodies were found. Id. at 140.
She stated she had no personal opinion ofthe defendant's responsibility. Id. at 142.
When ... I said my personal judgment this what I mean, my personal thinking.
This case should be closed. This case should be already - you know get closed
in a differ way and that's what I mean with my personal feelings.
Q Okay. Well, based on what you've read and based on what've seen on
television do you believe Mr. Komisarjevsky to be innocent as he sits there now,
as you look at him?
A No, I don't think so. ... What is done is done.

Id. at 159. The trial court instructed JM-M on the presumption of innocence, and she stated
that she followed the charge and would not have a problem applying it. Id. at 159-60.
Defense counsel then asked a follow up question:
Q So, even though you've read all the facts you told us about the poor
mother, the girls and the fire and all that, even though you've read that, as you
look at [the defendant] right now you do presume him to be innocent?
38
 A No, I don't think so. There is some facts - that's all the facts we know.
There is bodies, there is -

Id. at 160. The trial court instructed again on the presumption of innocence. Id. at 160-61.
THE COURT: Yes. And, so, now, the question is can you look at [the defendant]
and tell him that you presume him innocent as I've explained that to you or is
there going to be a problem here?
[JM-M]: Oh, no, yes, I can. Now, that you explain it I will thank you for that. Yes,
1 can.

Id. at 160-61. Defense counsel asked further follow-up questions and, after some confus
ion, JM-M affirmed that she could presume the defendant innocent. Id. at 162-63.
The defendant challenged JM-M for cause citing her "grasp of the English language"
and that, "when it came to the presumption of innocence and expecting the defense to put
on evidence she very clearly said that she considered [the defendant] guilty and very
clearly said that she expected the defense to put on evidence." Id. at 180-81. The trial court
overruled it, stating that her command of English was excellent, and that her confusion over
the presumption of innocence was very common. Id. at 181-82. The defendant exercised a
peremptory challenge. Id. at 182. The trial court called JM-M Into the courtroom and

excused her, and, as she left, she stated: "Killer, asshole." Id. at 183. The defendant asked

the court to reconsider the challenge for cause, and the trial court declined, stating that it
had ruled correctly on the matter before it. Id. at 183.
The trial court continued with the voir dire of the next prospective juror, whom the
trial court dismissed due to bias. Id. at 184-88. Defense counsel then asked the trial court

to reconsider the challenge for cause, arguing that JM-M's conduct on exiting suggested
that she committed perjury during voir dire. Id. at 188. The trial court stated that on reconsi
deration, it believed the defendant was correct, and that a challenge for cause on different
grounds was well-placed. Id. at 189. The trial court stated it would not charge the defendant
with the peremptory, leaving the defendant as having exercised sixteen. Id. at 189.
 b. CLandMB

The defendant lists prospective jurors for whom he exercised peremptory challeng
es, alleging that he was "compelled" to use the challenges due to their clear bias. DB.75
n.55. He indicates that he moved to excuse two. CL and MB, for cause, but he does not set

forth the voir dire and the trial court's rulings. Id. Because the defendant did not deem the
bias of the others so "clear" as to warrant a motion for excusal for cause, and because the

defendant had not exhausted his peremptory challenges before the last juror to serve was
selected, the state will not address these. Because the focus of any claim relating to jury
impartiality must be on those jurors who actually sat; see Ross v. Oklahoma, 487 U.S. at
86; the state has limited its summary of individual voir dire to that of those twelve jurors.
7. Other Motions

a. Pretrial motions

The defendant moved the court to prohibit supporters of the victims from wearing P.
Family Foundation pins in the courtroom. T.2/15/11 at 155. The trial court denied the mo

tion on the following grounds: the pins, which were heart-shaped, about one inch in dia
meter and showed "three interlocking doves," did not convey a message relevant to the
case; Id. at 152, 157; and the pins would not prejudice the jury. Id. at 157. The trial court
advised the defendant it was his right to voir dire about the pins and to request a jury in
struction to ignore them. Id. at 158; see T.10/11/11 at 86-87 (in closing argument, defense
counsel asked jury to disregard pins).® During the trial, the defendant often noted the num
ber of pins visible. See e.g., T.9/20/11 at 6; T.9/22/11 at 7; T.9/26/11 at 5; T.I0/3/11 at 17.
The defendant moved to submit jury questionnaires to the venire. T.2/24/11 at 31-
59; Ct.Ex.E. The trial court denied the motion, ruling that in view of Connecticut's require-

®The trial court stated that it was ruling solely on the pins before it. T.2/15/11 at 158.
On September 22, 2011, the defendant commented that a member of the audience was
wearing a pin of two inches in diameter with words clearly visible to the jury. T.9/22/11 at 8.
That audience member covered it with a sweater, and the trial court cautioned that if it had
to interrupt proceedings to review new and different pins, it may prohibit all pins. Id. at 8-9.
The issue did not arise again.
ment for individual voir dire, the costs of a questionnaire outweighed the benefits. Id. at 54.
The trial court pointed out that the proposed questionnaire comprised 80 questions, includ
ing numerous calls for comments; id. at 54; that questionnaires are time-consuming and
that it Is far more efficient to ask the questions and listen to the answers; id. at 55-56; and
that voir dire can more easily and promptly deal with confusion. Id. at 57-58.
b. Motions filed after twelfth seated juror selected
The twelfth juror was selected on May 10, 2011. T.5/10/11 at 75. The defendant
made several motions subsequent to that event. He cites to the trial court rulings thereon in
his brief as evidence of inherent prejudice; DB.80-82; including: a motion for three-month
continuance after Senator Edith Prague made Inflammatory remarks about the defendant;
T.5/12/11 at 1-4; T.5/17/11 at 60-68, 213-14, see I.D.2 below; motion to strike panel and
change venue; T.9/16/11 at 25-43, see I.B.8. below; motion for additional peremptory chal
lenges, T.6/9/11 at 156-70; Motion to sequester the jurors, T.9/12/11 at 20-23, see I.D.I
below; Motion to remove newspaper boxes outside courthouse; T.9/16/11 at 18-23.
8. Motion to strike panel and change venue to Stamford
By motion dated September 15, 2011 and argued on September 16, 2011, with evi
dence to begin September 19, the defendant moved to strike the pane! and change venue
to Stamford. T.9/16/11 at 26. The defendant argued that the jury selection had not been
successful and that "It would take super human effort to put out of their mind all of the publi
city they have heard about this case... Id. at 25. The defendant summarized the evidence
presented during the February hearing on the motion to change venue; id. at 26-30; noted
that the "unrelenting sensationalism" of the media reporting had permeated the New Haven
area, and that this was clear during jury selection. Id. at 27. Defense counsel could not re
call any prospective juror saying he or she had never heard of the case. Id. at 28. It was
also the defendant's belief that most prospective jurors stated that they formed an opinion
that the defendant was guilty and that he deserved to die. Id. at 28-29. The defendant not
ed that having held that opinion for the three-and-a-half years since the crimes, the jurors
could not honestly respect the presumption of innocence. Id. at 30. The defendant pointed
41
to several prospective jurors who had demonstrated prejudice against the defendant, in
cluding JM-M, who had been challenged for cause and then yelled "killer asshole" at the
defendant. Id at 32-33. The defendant argued that JM-M proved that people can express
sincerity and pass muster, yet harbor immense ill feelings. Id. at 33. The defendant also
pointed out two jurors who were selected as alternates, DV. JM,® and subsequently stated
that they could not sit. Id. at 33-34. Defense counsel argued that weeping jurors demon

strated that the New Haven area had been poisoned by the horrific nature of the crime. Id.
at 37. The state responded that JM-M, DV and JM were not serving. Id. at 35. The state

also noted that every one of the jurors selected said that they could be fair and open-mind-
ed, that they had been voir dired extensively, and anyone who said they had formed an opi
nion about the defendant's guilt was not seated. Id. at 36.

The trial court denied the motion, stating that its perception was different than it had

been in February because it had had the experience of going through voir dire. Id. at 38-39.
[A]s I mentioned at the end of my February 28th decision, I said if the voir dire
process succeeds In producing the requisite number of jurors, meeting the
Skilling standard, venue need not be changed. If the voir dire process does not
so succeed, the motion now before the Court must be revisited in light of that
experience. And I certainly did my best to go into the voir dire process with an
open mind. And if I had become persuaded that a fair and impartial jury could
not have been impaneled In this Judicial District, I would have been the first to
say, we've got to change the venue in this case, and I was definitely open to
that, but it did become apparent, and I would say that it was certainly apparent
within the first couple of weeks that, although it would be an arduous process,
in part, because of the enormous number of challenges that were appropriately
given to each side, that it would be a long process, but we would be able to do
it, and, indeed, a fair and impartial jury has been selected.

Id. at 39-40. The trial court noted that the fact that a juror had surmounted "the challenges

of voir dire" yet yelled at the defendant, did not mean that there was a jury of people who
had tried to deceive the court and were "now intent on subverting due process." Id. at 40.

®Because these jurors were alternates, and neither they nor their replacements
deliberated the defendant's guilt, the state will not discuss them.
The trial court also noted that many of the people who were voir dired had thought, under a
"barrage of publicity" in July of 2007, that the defendant and Hayes were responsible,
but the person had gone on with life, and hadn't really thought about it at all for
three and a haif years and now, this is a completely different setting, it's a set
ting of court where jurors are placed under oath and obliged to decide the case
based on the evidence. And we try to maintain a somewhat formal system
here, which [defense counsel] regards, understandably, as a little Intimidating,
where the idea is that jurors are going to rely on their oaths of office. And just
to quote Skilling one last time, footnote 34 of Skilling says that, "It is a premise
of our system that jurors will set aside their preconceptions when they enter the
courtroom and decide cases based on the evidence presented." And that is, in
deed, a pillar of our system, and one that I heartily endorse. And it's rhetorical,
something of an exaggeration to say that somebody who might have had a
fleeting opinion three and a half years ago, and now hasn't thought about it at
all in three and a half years, and in thinking about it for the first time in a three
and a half year period has adamantly held a particular opinion for three and a
half years, there's obviously a big, big difference between the two situations.
But, be that as it may, I am fully persuaded that the panelists who have been
selected for the jury are fair and intelligent people who will take their oaths of
office very seriously and will decide the case based on the evidence and the
instructions, and that is what our law requires.
So, under these circumstances and, of course, for reasons more fully set forth
in my written decision of February 28th, the motion is, with respect, denied.
T.9/16/11 at 41-42.

9. Post-trial venue argument

On January 10, 2012, after return of sentences of death, the defendant moved for a
new trial, relying on the Penrod evidence and arguments raised previously, asserting that
due to prejudicial pretrial publicity, he had been unable to have a fair trial. T.1/18/12 at 1-6.
The trial court denied the motion, relying on its prior rulings, and stating "this was a remark
ably fair and [attentive] jury that really took its time in delivering what it recognized was a
grave decision." T.1/18/12 at 7.

And ... much has been said about the population of the courtroom, and how that
may or may not have affected the jury. And I'm not insensitive to the fact that
many members of the [P] family and friends showed up on a regular basis, as
was their perfect right, in fact, their right under the State Constitution, and trials
are supposed to be public.
 ... I think that the [P] family behaved in a very dignified manner throughout the
proceedings. There were a couple of times when the Court had differences with
I them about the size of certain Insignias, and those matters were addressed, but
... the [P] family ... behaved in a very dignified manner, not at all threatening or
' anything like that. ... Ithink that the pins, which were the object - the pins which
were an object of much contention, one is in evidence, I'm convinced that the
pins do not in any way try to intimidate the jury or appeal to their emotions.

T. 1/18/12 at 7-8.

C. Pretrial Publicity About This Case Did Not Deprive The Defendant
Of A Fair Trial By An Impartial Jury
The defendant claims that the trial court improperly denied his motions for a change
of venue. DB.11. The defendant did not meet his heavy burden to show that he would be or
that he was denied a fair trial due to pretrial publicity. For the following reasons, the de
fendant's claim fails.

1. Prejudice should not be presumed

The defendant claims that prejudice must be presumed due to three circumstances:
(1) the extraordinary media saturation both reflected and stoked intense and
inflammatory public feelings about the offense and the defendant; (2) the
media coverage contained highly prejudicial or inaccurate facts; and (3) the
coverage compromised the calmness and solemnity of the proceedings.

(Footnotes omitted). DB.38. The defendant cannot prevail because he failed to demon
strate presumptive prejudice, and any possibility of prejudice was rebutted by the thorough
voir dire. As the trial court recognized, after an "arduous process," a "fair and impartial jury
ha[d] been selected." T.9/16/11 at 39. In addition, there is no evidence, and the defendant

has cited none, that media conduct invaded the courtroom itself during the criminal trial,
a. Prejudice should not be presumed

Because the trial court properly exercised its discretion in denying change of venue,
the defendant cannot prevail. In Skilling, the United States Supreme Court examined two
questions related to the district court's refusal to change the venue of the criminal trial of
Jeffrey Skilling. Enron's former chief executive officer; (1) whether pervasive pretrial publi
city surrounding the Enron scandal created a "presumption of prejudice" to the point that
venue should have been changed; and (2) if not, whether "actual prejudice" Infected Skill
ing's jury and thereby deprived him of a fair trial. Skilling, 561 U.S. at 377, 385. To deter
mine whether the pretrial publicity surrounding Enron's collapse created a presumption of
prejudice, the Supreme Court applied a four-factor analysis: (1) the size and characteristics
of the community in which the crime occurred; (2) whether media reports about Skilling
contained a "confession or other blatantly prejudicial information of the type readers or
viewers could not reasonably be expected to shut from sight"; (3) the length of time be
tween the criminal conduct and the start of trial; and (4) the nature of the jury's verdict, i.e.,
whether the jury acquitted the defendant of any charges. Skilling, 561 U.S. at 382-84. The
Court concluded that Skilling's case shared "little in common" with the rare, extreme instan

ces where a "presumption of prejudice" was deemed appropriate. Skilling, 561 U.S. at 384.
Here, the trial court properly applied the four Skilling factors and declined to order a
venue change because "no presumption of prejudice arose." Skilling, 561 U.S. at 385.
With respect to the first factor, Skilling juxtaposed the relatively small population of
the parish in Louisiana where the murder occurred in Rideau v. Louisiana, 373 U.S. 723,^°
with the much larger population of the Houston area where Skilling's trial was held:
In Rideau, ... we noted that the murder was committed in a parish of only
150,000 residents. Houston, in contrast, is the fourth most populous city in the
Nation: At the time of Skilling's trial, more than 4.5 million individuals eligible
for jury duty resided in the Houston area.... Given this large, diverse pool of
potential jurors, the suggestion that 12 impartial individuals could not be em
paneled is hard to sustain.

In Rideau, "an unrepresented defendant's twenty-minute, in-depth confession In

the form of an 'interview' with the Sheriff was recorded and broadcast multiple times in a
small Louisiana parish. That Interview and not the later trial, the Court found, 'in a very real
sense was Rideau's trial - at which he pleaded guilty to murder.'" In re Tsarnaev, 780 F.3d
14, 23-24 (1st Cir. 2015). The Supreme Court reversed the conviction, terming the court
proceedings in question "a hollow formality." Rideau, 373 U.S. at 726.
 Id. at 382. Here, the trial court properly determined that, like Houston, the size and charac
teristics of the jury pool in the New Haven Judicial District mitigated any potential prejudice
from pretrial publicity. The trial court stated that
[T]he New Haven Judicial District has a population of 846,101. This popula
tion is substantially greater than that of Rideau's parish, which had a popula
tion of approximately 150,000 people. [Rideau, 373 U.S. at 724]. The New
Haven Judicial District, moreover, consists of thirteen towns with a significant
diversity of residents. "Given this large, diverse pool of potential jurors, the
' suggestion that 12 impartial individuals could not be empaneled is hard to
sustain." [Skilling, 561 U.S. at 382].

(Footnote omitted.) State v. Komisarjevsky, 2011 WL 1168532, at *3. The defendant con
tests the trial court finding by comparing the size of the New Haven Judicial District to that

of Houston. DB.48. However, the United States Supreme Court has found that a jury pool
of 600,000 individuals, less than the 846,101 of New Haven, reduced the likelihood of pre
judice. Gentile i/. State Bar of Nev., 501 U.S. 1030, 1044 (1991) (plurality opinion).
Importantly, the coverage here was statewide, if not nationwide. The porosity of geo
graphic boundaries due to the effects of the internet supports the trial court ruling.
We think ... that such advances in communication technology support the
conclusion [to not change venue]. If prejudice could be spread through multi
ple forms of media, the spread of such prejudice would not stop at district
lines, but would extend across the state of Florida. Following that rationale,
the district court should have refused to change venue because a district out
side Miami-Dade would have been no more capable of producing a panel of
impartial jurors than Miami-Dade itself. This is why we afford deference to the
district court's assessment of juror credibility and impartiality.

U.S. V. Camps, 459 F.3d 1121, 1148 (11th Cir. 2006). "There is no reason to think ... that
this extensive coverage would have been any different in kind or degree if the trial had
been conducted elsewhere." U.S. v. Tsamaev, 157 F.Supp.3d 57 (D.Mass. 2016) (denying
motion for new trial in Boston Marathon bombing case). Given that the trial had to occur In '
Connecticut, the small size of the state and the equally high degree of familiarity with the
case in the three other judicial districts surveyed by Penrod, a change of venue would have
had limited value. It was well within the trial court's discretion to opt first to attempt to select
an impartial jury in New Haven when a comparable level of publicity would be found
throughout the state. Compare U.S. v. Case!tas~Toro, 807 F.3d 380, 388 (1st Cir. 2015)
(finding abuse of discretion to deny venue change; massive, sensational media coverage of
murder in insular district of Puerto Rico; defendant relatively unknown outside Puerto Rico)
with In re Tsamaev, 780 F.3d 14, 22 (1st Cir. 2015) (denial of venue change proper where
national coverage of Boston Marathon bombing case).
Second, regarding the nature of the media coverage, the Skilling Court found that:
I

[A]lthough news stories about Skilling were not kind, they contained no con
fession or other blatantly prejudicial information of the type readers or viewers
could not reasonably be expected to shut from sight. Rideau's dramatically
staged admission of guilt, for instance, was likely imprinted indelibly in the
mind of anyone who watched it.... Pretrial publicity about Skilling was less
memorable and prejudicial. No evidence of the smoking-gun variety invited
prejudgment of his culpability.

(Citation omitted.) 561 U.S. at 382-83; see Kelly, 256 Conn, at 34 (recognizing Rideau as
only case where "Supreme Court held that pretrial publicity alone, without an attendant cir
cus-like trial atmosphere, was sufficient to establish a violation of the right to a fair trial").
The trial court properly determined that none of the pretrial publicity about this case
contained the kind of inherently prejudicial material that would make a fair trial impossible.
[MJedia reports concerning the cases in question have unquestionably con
tained much negative information about Komisarjevsky. Skilling, however,
specifically focuses on publicity concerning "admission[s] of guilt" of the type
at issue in [Rideau]. Some of Komisarjevsky's post-arrest statements to the
police and certain diaries apparently authored by him in prison were admitted
into evidence in the penalty phase of State v. Hayes, and these admissions
generated news reports at the time. But these admissions do not appear to
have been particularly salient in the public mind. According to [the de
fense expert], when asked to cite "the most compelling evidence against
Komisarjevsky." only 1% of New Haven Judicial District residents named "the
journals," and 6.3% cited "admitted guilt." (Ex. C., Table 22.) The most com
mon responses, in contrast, were "caught at [victims'] house" (26.4%) ... and
"nothing, don't know" (26.6%). (Id.).

(Footnote omitted; emphasis added.) State Komisarjevsky, 2011 WL 1168532, at *4.

Indeed, a good deal of the coverage was about the crime itself and community reaction.
Two of the jurors who served said they were aware of criticism of the police response;
T.3/23/11 at 78; T.4/28/11 at 93; part of the theory of the defendant's case. See Issue IV
below. In similar circumstances in the Boston Marathon bombing case,

[t]he bombings in Boston, the murder of a policeman, and the other criminal
events charged did in fact take place and were heavily covered by the media
around the world. ... [T]hat is a separate matter from the matter of whether
[the defendant] is guilty of the crimes charged. ... Seeing media coverage of !
the former does not mean the viewer is prejudiced. ... Similarly, the Boston
Strong theme is about civic resilience and recovery. It is not about whether
[the defendant] is guilty or not of the crimes charged.

(Internal citations omitted). In re Tsamaev, 780 F.3d at 25 n.13. Compare Mu'Min v. Virgi
nia, 500 U.S. 415, 429 (1991) (rejecting claim of constitutional right to extensive voir dire
where, although news reports in capital case not favorable, much of publicity aimed at criti
cism of officials for failure to supervise defendant); see Murphy v. Florida, 421 U.S. 794,
800 (1975) (knowledge of defendant's criminal history alone would not warrant finding pre
sumptive prejudice); see also Stroble v. California, 343 U.S. 181, 195 (1952) (no due pro

cess violation due to inflammatory pretrial publicity, where, though confession published, it
had been found voluntary and admitted at trial).

The defendant, without arguing that the trial court's finding was clearly erroneous,
cites many instances of factually incorrect material that appeared in some news reports and
the existence of factually correct material, such as prison journals and Hayes' characteriza
tion of the defendant's conduct, that were not admitted at his trial and that constituted "un

forgettable smoking guns." DB.38-39, 47, 79. He does not, however, counter the reliance of
the trial court on the defendant's own expert's findings, that the erroneous or inadmissible
matter was not "particularly salient" in the public mind. State v, Komisarjevsky, 2011 WL
1168532, at *4. "The judge of that court sits in the locale where the publicity is said to have
had its effect and brings to his evaluation of any such claim his own perception of the depth

and extent of news stories that might influence a juror." Mu'Min, 500 U.S. at 427.

Finally, any prejudice from the publicity might have been greater had the defendant
disputed the factual account of the events leading up to his entry into the house and the
48
fact of the deaths and assault on WP that occurred there, and had he discounted the con
tents of his confession. Of the jurors who sensed, when they stated that in the immediate
aftermath of the crimes they believed the defendant to be guilty, it is apparent that many
meant that they believed he was one of the intruders. Indeed, the defendant, who was ap
prehended in the victims' car as he fled from the burning home, did not contest identity. In
stead, he admitted his responsibility for the kidnappings, burglary, assault of WP, and sex
ual assault of MP (contesting the method by which he did so), but urged the jury to credit
the denials of an intent to kill contained in his statement to the police and vigorously argued
inferences from the evidence supporting its credibility, See T.9/19/11 at 41, 53-54 (opening
statement); T.I0/11/11 at 56-61 (closing argument); compare State v. Townsend, 211
Conn. 215, 228 (1989) (no inherent prejudice from news accounts of offer to plea, because
such account, "in these circumstances, is not as inherently prejudicial as in a case in which
a defendant denies any involvement in a crime")- Indeed, the jurors assured the court and
the lawyers that they could assess the individual responsibilities of the two accused men.
See T.3/23/11 at 91; T.4/4/11 at 3; T.4/7/11 (excerpt) at 27, 33; T.4/13/11 at 141-42;
T.4/20/11 at 236; T.4/28/11 at 94; T.5/4/11 at 114; T.5/5/11 at 15.
As to the third factor, the Skilling Court noted that, "unlike cases in which trial swiftly
followed a widely reported crime, e.g., Rideau, 373 U.S. at 724, ... over four years elapsed
between Enron's bankruptcy and Skilling's trial. Although reporters covered Enron-related
news throughout this period, the decibel level of media attention diminished somewhat in

the years following Enron's collapse." Skilling, 561 U.S. at 383. Here, about four years
elapsed between the murders and the defendant's trial. It Is true that the trial of Hayes had
finished on November 8, 2010, almost four months before the February 23, 2011 hearing
on the venue motion and the March 16, 2011 commencement of jury selection, and the
media reported on the Hayes trial and verdicts.''^ The trial court found that although
the Hayes trial plainly generated publicity unfavorable to Komisarjevsky,... as
discussed in the analysis of SkiHing's second prong, ... this publicity has not
created an indelible impression on the public with respect to Komisarjevsky's
actual admissions. As SkiHing pertinently observes, '[t]his may come as a sur
prise to lawyers and judges, but it is simply a fact of life that matters which in
terest them may be less fascinating to the public generally.' [561 U.S. at 391]
n. 28. (Internal quotation marks and citation omitted.)

State V. Komisarjevsky, 2011 WL 1168532, at *3. In addition, the defendant sought to per
suade the jury that Hayes was the mastermind of the more heinous acts; publicity about his
convictions was not necessarily prejudicial to that defense. The defendant claims that "the
decibel level of media attention ... grew louder;" DB.48; in part because of the Hayes trial,
but does not challenge as clearly erroneous the trial court's finding, which relied on the de
fendant's own expert's report, that such facts were not "particularly salient." Indeed, during
voir dire, many of the seated jurors indicated that they had not followed the Hayes case or
essentially had stopped paying attention to news coverage surrounding this case long
before they had been summoned for jury selection. T.3/17/11 at 93; T.3/21/11 at 209;
T.3/23/11 at 91; T.4/19/11 at 136, 150; T.4/20/11 at 211; T.5/4 at 91-92. See Stroble v.

California, 343 U.S. at 195 (no due process violation due to inflammatory pretrial publicity,
where publicity had receded some six weeks before trial).
Fourth, the SkilUng Court noted that his jury had acquitted him of nine insider-trading
I

counts. Id. at 383. Here, the defendant's jury did not acquit the defendant of any of the
charges. This factor is neutral, however, in this case. As the trial court pointed out, the
Hayes jury had acquitted him of one of the counts against him. Komisarjevsky, 2011 WL
1168532, at *4. "This fact serves as a counterweight to defense suggestions in this case
that, in spite of their oaths and instructions, jurors' verdicts are simply a function of pretrial

The trial court mistakenly stated that Hayes was tried in the fall of 2009. State v.
Komisarjevsky, 2011 WL 1168532, at *3.
publicity." Id. at *4, Moreover, any publicity about the Hayes verdicts could have let pro
spective jurors know that they could discount some aspect of the state's case and would re
inforce the need to pay close attention to the evidence presented at trial. As set forth
above, the defendant agreed at trial that he was guilty of the kidnappings, burglary, assault
of WP. and sexual assault of MP {contesting the method by which he did so); he contested
only whether he killed or intended to kill the occupants of the house. Significantly, the jury's
finding respecting intent would have applied to all of the homicide counts.
[I]n light of the facts of this case, ... the fact that [the defendant] was not
acquitted of any of the charged offenses does not either support or rebut a
presumption of jury bias or impartiality. The evidence in this case simply did
not create any inference from which the jury could conclude that he [intended
to kill some, but not all of the occupants of the house.]

Luong v. State. 199 So.3d 139, 148 (Ala. 2014), as modified (May 23. 2014). "Therefore, in
light of the facts of this case, the jury's verdict neither supports nor negates a finding of pre
sumed prejudice." Luong v. State, 199 So.3d at 148.

In support of his claim of presumptive prejudice, the defendant argues that "the cov
erage compromised the calmness and solemnity of the proceedings." DB.38, 40-46. This
claim fails for three reasons. First, as used in Supreme Court jurisprudence, the "calmness
and solemnity of proceedings" analysis applies to those cases where the trial court permit
ted media intrusion into the courtroom itself during trial. Here, as in SkilHng, "there is no
suggestion that the courtroom in this case became, as in Estes [v. Texas, 381 U.S. 532
(1965)] and Sheppard [v. Maxwell, 384 U.S. 333 (1966)], a 'carnival' in which the 'calmness
and solemnity' of the proceedings were compromised."^^ Skilling, 561 U.S. at 446. Second,

^ In Estes, "extensive publicity before trial swelled into excessive exposure during
preliminary court proceedings" as the media "overran the courtroom" and caused significant
disruption. Skilling, 561 U.S. at 380. In Sheppard, "bedlam reigned at the courthouse during
the trial and newsmen took over practically the entire courtroom." Sheppard, 384 U.S. at
353, 355. The Supreme Court in Sheppard "upset the [defendant's] murder conviction be
cause a 'carnival atmosphere' [had] pervaded the trial." Skilling, 561 U.S. at 380 (quoting
Sheppard, 384 U.S. at 358).
as proof of these assertions, he relies on the expressions of hostility toward and emotion
about the crimes expressed by many venirepersons during voir dire. See DB.40-46. But it is
the impact on the petit jury of the courtroom conduct of the media during the criminal trial
that serves the concern about "calmness and solemnity." In any event, none of the venire-
persons discussed served on the jury; no juror whom the defendant challenged for cause
served; and the defendant had not exhausted his peremptory challenges before every juror
who decided his guilt had been selected. In SkHling, the majority criticized the dissent for
"rely[ing] extensively on [responses of] venire members not selected for [the] jury." noting
that "elimination of these [non-seated] venire members is indeed one indicator that the [jury
selection] process fulfilled its function." (Emphasis in original). 561 U.S. at 389 n.24. Al
though the defendant complains that the trial court denied his motions to excuse panels
after some members of the venire wept in the presence of other venirepersons, only one
juror, RF, served who was on such a panel and the defendant had accepted him. T.4/20/11
at 246.''^ Third, the defendant also relies on this Court's comments on media coverage in
State V. Komisarjevsky, 302 Conn. 162, 176, 179-80 (2011). DB.38-39. There, in deciding
whether to permit the trial court to unseal witness lists, this Court ruled that the defendant's

interest in preparing a defense and not rendering witnesses and sources reluctant to talk
with counsel due to fear of adverse consequences from being identified, overrode the pub
lic's and press interest in having access to all aspects of the pretrial judicial proceedings.
Because the purpose of the inquiry into media coverage there (i.e., whether the right to
public access should yield, pretrial, to the defendant's rights to a fair trial), was distinct from
the question posed here (i.e. whether it is possible to find an impartial jury because of the
media coverage), that language is not determinative.

In his catalogue of ten reasons that the voir dire procedures did not protect him
from jury bias caused by inflammatory media, the defendant includes the trial court's denial
of his motion to preclude WP and his supporters from wearing P. Family Foundation pins.
See DB.80-81. He does not include this as a factor affecting the "calmness and solemnity
of the proceedings." DB.40-46.
 Accordingly, based the SkHling factors, the trial court properly denied the defendant's
motion to change venue and the the defendant's claim of presumptive prejudice fails.
I

b. Alternatively, any presumed prejudice Is rebuttable

The defendant claims that any presumption of prejudice is non-rebuttable. DB.49. In
Skilling, because the Court rejected the Fifth Circuit's finding that the petitioner had esta
blished presumptive prejudice from pretrial publicity, it did not decide the question "whether
a presumption of prejudice can be rebutted, and, if it can, what standard of proof governs
that issue." Skilling v. U.S., 561 U.S. at 385 n.18: but see Patton, 467 U.S. at 1035 (noting
passage of time before second trial "clearly rebuts any presumption of partiality or pre
judice" of venire that existed at time of initial trial).
The Eleventh Circuit has also held the presumption to be rebuttable.
Once the defendant puts forth evidence of the pervasive prejudice against
him, the government can rebut any presumption of juror prejudice by demon
strating that the district court's careful and thorough voir dire, as well as its
use of prophylactic measures to insulate the jury from outside influences, en
sured that the defendant received a fair trial by an impartial jury.

U.S. V. Campa, 459 F.3d at 1143. In Campa, the Court of Appeals upheld the denial of a
change in venue, ruling that the "court's careful and thorough [individual] voir dire rebutted
any presumption of jury prejudice." 459 F.2d at 1148; see Mayola v. Alabama, 623 F. 2d
992, 1001 (5th Cir. 1980) (state must have chance to rebut any presumption), cert, denied,
451 U.S. 913 (1981).
That prejudice must be rebuttable is particularly indispensable in Connecticut where
failure to examine the record of voir dire would render a nullity the unique protections af-

^ Indeed, in some cases it is the effectiveness of the voir dire proceedings that
means that the defendant has failed to demonstrate inherent prejudice in the first place.
See e.g., Murphy v. Florida, 421 U.S. at 800 (no inherent prejudice where voir dire "indi
cates no such hostility to petitioner by the jurors who served in his trial as to suggest a par
tiality that could not be laid aside"); Beck Washington, 369 U.S. 541, 555-58 (1962) (up
holding denial of motion for change of venue because jury selection process ensured that
each juror chosen was impartial).
forded by the individual voir dire mandated by the state constitution.^® This defendant, after
the extensive voir dire, permissive challenges for cause and exercise of forty peremptory
challenges, was tried only by jurors he accepted. And indeed, a Connecticut defendant
cannot prevail on a jury bias claim if "the record ... discloses no evidence that the jurors
who sat on the defendant's case were prejudiced by" what they knew. State \/. Mercer, 208
Conn. 52, 62 (1988). After all, the goal is a trial before a fair jury, a trial wherein any exter
nal prejudice ultimately was filtered out by the jury selection process.
Those courts that permit the rebuttal of the presumption place on the government
the burden of proving that the twelve jurors finally impaneled actually were impartial. See
U.S. V. Campa, 459 F.3d at 1143; U.S. v. McVeigh, 153 F.3d 1166, 1183 (10th Cir. 1998),
cert, denied, 526 U.S. 1007 (1999); see 2 Charles Alan Wright, Federal Practice and Pro
cedure § 342, at 390-92 (3d ed. 2000) ("The courts consider that the existence of prejudice
can better be determined by voir dire examination of potential jurors than by affidavits and
speculation about the effect of publicity. If the voir dire produces a satisfactory panel, this is
regarded as demonstrating that a transfer is unnecessary.") (footnote omitted). This record

demonstrates that any presumption of prejudice was soundly rebutted. The record contains
the factors courts consider when determining that the government successfully has rebut
ted presumptive prejudice, including the trial court's: excusing those people on its own mo
tion who avowedly could not reach a verdict based solely on the evidence; see U.S. v.
Campa, 459 F.3d at 1147; using extensive individual voir dire outside the presence of the'
venire; id/, and permitting unlimited exploration of whether the jurors have been exposed to
media and their familiarity with the people involved. U.S. Parker, 877 F. 2d 327, 331 (5th
Cir.), cert, denied, 493 U.S. 871 (1981). Of course, rebuttal is successful when "[t]he court's

In Patton v. Yount, 467 U.S. 1025, 1034 n.10 (1984), when concluding that the
voir dire succeeded in selecting jurors who had forgotten earlier opinions of guilt or would
need to be persuaded again, the Supreme Court found it significant, if not controlling, that
venirepersons were questioned alone and not in the presence of the entire panel.
voir dire was so effective in screening potential jurors that the defendants did not exercise
all of their peremptory challenges." U.S. v. Campa, 459 F.3d at 1148. Only in Rideau v.
Louisiana has the Supreme Court reversed a conviction based solely on presumptive preju
dice from pretrial publicity without regard to the jurors' voir dire or courtroom chaos; there,
the uncounseled custodial interview broadcast to a small community made a trial a "hollow
formality." 373 U.S. 723, 726 (1963). See also Nebraska Press Ass'n v. Stuart, 427 U.S. at

564-64 (alternatives to restraint of press to ensure fair trial included change of venue, post
ponement of trial, "searching questioning of prospective jurors," use of emphatic and clear
instructions, limitations on disclosures by lawyers, police and witness).
Here, "the trial court, in denying the defendant's motion without prejudice, properly
left open the possibility of reconsidering the motion in the unlikely event that, during the
course of the voir dire process, it became apparent that an impartial jury could not be im
paneled in the judicial district of [New Haven.]" State Reynolds, 264 Conn, at 224.
"[T]here is no reason to believe that any influence of the pretrial publicity could not have
been overcome by the voir dire process." State v. Reynolds, 264 Conn, at 224; see also In
re Tsamaev, 780 F.3d at 28 (in denying a mandamus application to order change of venue,
court notes thoroughness of ongoing jury selection process in Boston Marathon bombing
case, adding that, "rather than a voir dire taking a total of five hours as in Skilling, the voir
dire in this case has taken - appropriately we think - several weeks").
2. There was no actual bias

The defendant claims that the refusal to grant the change of venue or a continuance
resulted in actual prejudice, relying on the voir dire proceedings and the responses of the
seated jurors. DB.50-59. The defendant cites the following; because over two hundred pro
spective jurors were struck by the trial court for bias, such a number meant that a fair jury
could not be selected; DB.59-60; the jurors peremptorily challenged by the defendant and
the state "further demonstrate that pretrial publicity and community animus tainted that trial;
DB.61, 61-77; he was required to use his peremptory challenges against biased venireper-
sons, while the state could use its challenges against those with reservations about capital
punishment: DB.77-78: the venire was biased due to the emotional nature of the case and
the media saturation; DB.79-80; the jury convicted the defendant of all charged offenses;
and, for ten enumerated reasons, jury selection procedures "were insufficient to detect and
defuse the juror bias". DB.80-81.

The defendant cannot establish that the trial court's finding of an impartial jury is
manifest error. The defendant has failed to establish actual bias on the part of any of the

jurors who decided his guilt and punishment. Once again, the Skilling opinion Is instructive.

After concluding that publicity surrounding the Enron scandal did not merit a presumption of
prejudice requiring a venue change, the Court considered "whether actual prejudice infect
ed Skilling's jury." Skilling, 561 U.S. at 385. Before turning to Skilling's claim, the Court
noted the deference due to the trial court's assessment of the jurors:

No hard-and-fast formula dictates the necessary depth or breadth of voir

dire.... Jury selection, we have repeatedly emphasized, is particularly within
the province of the trial judge.
When pretrial publicity is at issue, primary reliance on the judgment of the thai
court makes [especially] good sense because the judge sits in the locale
where the publicity is said to have had its effect and may base her evaluation
on her own perception of the depth and extent of news stories that might
influence a juror.... Appellate courts making after-the-fact assessments of the
media's impact on jurors should be mindful that their judgments lack the on-
the-spot comprehension of the situation possessed by trial judges.
Reviewing courts are properly resistant to second-guessing the trial judge's
estimation of a juror's impartiality, for that judge's appraisal is ordinarily
influenced by a host of factors impossible to capture fully in the record—
among them, the prospective juror's inflection, sincerity, demeanor, candor,
body language, and apprehension of duty.... In contrast to the cold transcript
received by the appellate court, the in-the-moment voir dire affords the trial
court a more Intimate and immediate basis for assessing a venire member's
fitness for jury service. We consider the adequacy of jury selection in Skilling's
case, therefore, attentive to the respect due to district-court determinations of
juror impartiality and of the measures necessary to ensure that impartiality.

(Citations and Internal quotation marks omitted.) Skilling, 561 U.S. at 386-87.
 In rejecting Skilling's claim of actual bias, the Court relied on several factors, that,
applied here, demonstrate no actual bias.

First, voir dire in Skilling's case involved a "lengthy process" of five days, whereas in
other Enron-related prosecutions, district courts completed the jury selection process within
one day. Skilling, 561 U.S. at 388-89. Here, the individual, attorney-led voir dire, a constitu
tional requirement in Connecticut, was significantly longer than that in Skilling, consuming
roughly three months.

Second, the district court conducted voir dire "aware of the greater-than-nonnal
need, due to pretrial publicity, to ensure against jury bias." 561 U.S. at 389. Although the
district court "denied Skilling's request for attorney-led voir dire the "parties ... were accord
ed an opportunity to ask follow-up questions of every prospective juror brought to the bench
for colloquy." !d. Here, the trial court gave the parties carte blanche to probe each juror's
exposure to publicity surrounding the case. All of the seated jurors satisfied the parties that
they would set aside whatever preconceived opinions about the case they may have
formed and render a verdict based solely on the evidence. Reviewing courts take into
account the amount of voir dire conducted in assessing the trial court's judgment on impar
tiality. Patten, 467 U.S. 1058; Murphy v. Florida, 421 U.S. at 800-03; Beck v. Washington,
369 U.S. 541, 566-67 (1962). Even where the publicity is highly inflammatory and current,
that will not in itself establish actual prejudice - the impact of the publicity must be shown in
the voir dire responses. Here, many of the seated jurors said that, although they knew
about the crimes, they knew nothing about the relative roles of the two accused. T.3/23/11
at 91; T.4/4/11 at 3; T.4/7/11 (excerpt) at 27, 33; T.4/13/11 at 141-42; T.4/20/11 at 236;

T.4/28/11 at 94; T.5/4/11 at 114; T.5/5/11 at 15. This was a critical indicator of open-mind-
edness in light of the defendant's defenses, which included claims that he did not intend to

kill and that Hayes had been the perpetrator of the murders. In Dobbert v. Florida, 432 U.S.
at 303, the Court rejected the petitioner's argument that the extensive coverage by the me
dia denied him a fair trial where it rested almost entirely upon the quantum of publicity. "He
has directed us to no specific portion of the record, in particular the voir dire examination of
the jurors, which would require a finding of constitutional unfairness as to the method of jury
selection or as to the character of the jurors actually selected." Id. at 303. Similarly, in
Mu'Min V. Virginia, 500 U.S. at 429, a capital murder that engendered considerable media
coverage, the trial court's voir dire protected the defendant's right to a fair trial.
Third, SkiiUng observed that the jury "questionnaires confirmed that, whatever com

munity prejudice existed in Houston generally, Skilling's jurors were not under its sway."
561 U.S. at 391. Here, although the trial court denied the defendant's request for special
jury questionnaires, it did so believing that unlimited voir dire at which defense counsel
could observe the answer and ask follow-up questions better served the goat of choosing a
fair jury. T.2/24/11 at 55-58. The defendant has not indicated what information he could

have gleaned from the questionnaire that he could not elicit through voir dire.
Similarly, as the fourth factor, the Skilling Court lauded the district court for its follow-
up interrogation of each juror "individually to uncover concealed bias." 561 U.S. at 394-95.
"This face-to-face opportunity to gauge demeanor and credibility, coupled with information
from the questionnaires regarding jurors' backgrounds, opinions, and sources of news,
gave the [district] court a sturdy foundation to assess fitness for jury service." Id. at 395.
Here, the extensive attorney-led individual voir dire more than served the same function.
The fifth factor, that "[t]he jury's not-guilty verdict on nine insider-trading counts after
nearly five days of deliberation ... suggests the district court's assessments [of juror fitness]
were accurate," Skilling, 561 U.S. at 395; is neutral in this case.

Sixth, Skilling "unsuccessfully challenged only one of the seated jurors for cause,
strong evidence that he was convinced the [other] jurors were not biased and had not
formed any opinions as to his guilt." (Internal quotation marks omitted.) Skilling, 561 U.S. at
396. Here, the defendant did not challenge any of the seated jurors for cause, and he failed
to exhaust his full allotment of forty peremptory challenges before the seated jurors and six
alternates were selected. Despite the defendant's later profession that he was dissatisfied
with the jury, this is a strong indication that the defendant was satisfied that his jury was im
partial. See State v. Vitale, 190 Conn. 219, 224-25 (1983) (failure to exhaust peremptory
challenges indicates satisfaction with jurors selected). The defendant claims that the jurors'
statements that they could be impartial should have been given little weight because "many
of the seated jurors admitted that they had prejudged the defendant's guilt," and many
others demonstrated bias. DB.76, see DB.60-61, citing Patton \^. Yount, 467 U.S. at 1031.
In Patton, the Court held that "relevant question is not whether the community remembered
the case, but whether the jurors ... had such ffxed opinions that they could not judge impar
tially (emphasis added); Patton. 467 U.S. at 1035; and that a trial court's finding that a
jury was impartial should only be overturned for manifest error. Id. at 1031-32; see Murphy
V. Florida, 421 U.S. at 802-03 (length to which trial court goes in voir dire is part of test to
gauge assurance of impartiality). The trial court, in denying the defendant's motion to
change venue after jury selection was completed, noted that

... it's rhetorical, something of an exaggeration to say that somebody who

might have had a fleeting opinion three and a half years ago, and now hasn't
thought about it at all in three and a half years, and in thinking about it for the
first time in a three and a half year period has adamantly held a particular
opinion for three and a half years, there's obviously a big, big difference
between the two situations.

T.9/16/11 at 41-42. The trial court properly may take into account the passage of time and
its effect on the fixedness of prospective jurors' opinions. Patton, 467 U.S. at 1034. Again,
many of those jurors who said they had had an opinion of the defendant's guilt indicated
that they based that opinion on the defendant's being apprehended at the scene, and most
said they did not know what had happened in the house and the roles of each of the
accused. Awareness of the basic facts of the crimes is not the same as fixed preconceived
notions of the defendant's guilt. "It was thus not simply the existence of opinions among
prospective jurors, but the degree of their fixedness that was critical to the Court." In re
Tsarnaev, 780 F.2d at 23, see id. at 25 n.13.
 in addition, Judge Blue repeatedly instructed the jurors throughout voir dire and trial
to avoid all publicity concerning the case.^® See Skilling, 561 at 399 n.34; State v. Crafts,
226 Conn. 226 Conn. 237, 261 (1993) (rejecting claim of actual prejudice where "trial court
took unusually thorough measures to ensure the jury's continued impartiality through the
use of extensive daily admonishments counseling the avoidance of any publicity"). Absent
evidence to the contrary, jurors are presumed to follov\/ the trial court instructions to avoid

publicity. See State v. Chapman, 33 Conn. App. 205, 212 (1993) (presuming jurors fol
lowed court's instructions to avoid local newspapers absent contrary evidence), cert, den

ied, 228 Conn. 920 (1994); see generally State v. Carpenter, 275 Conn. 785, 828 (2005),
cert, denied, 547 U.S. 1025 (2006). The defendant has pointed to no evidence indicating
that the jury did not follow the trial court's instructions to avoid publicity.

Also, in denying the defendant's post-selection motion to strike the panel and for a
change of venue, the trial court ruled

1 am fully persuaded that the panelists who have been selected for the jury
are fair and intelligent people who will take their oaths of office very seriously
and will decide the case based on the evidence and the instructions, and that
is what our law requires.

T.9/16/11 at 42. And. on September 19, 2011, before evidence began, the trial court indivi
dually asked each juror and alternate if anything had occurred since he or she had been
selected that meant he or she could not be fair and impartial, and each juror said no.
T.9/19/11 at 7-19. As Skilling and this Court's jurisprudence make clear, the trial court's
finding Is entitled to deference on appeal based on his superior position from which to ob-

^®See e.g. T.3/17/11 at 137; T.3/21/11 at 231; T.3/23/11 at 131; T.4/4/11 (excerpt) at
34-35; T.4/13/11 at 148-50; T.4/19/11 at 160-65; T.4/20/11 at 246-50; T.4/28/11 at 115-16;
T.5/4/11 at 132; T.5/5/11 at 61; T.5/10/11 at 78; T.9/19/11 at 175; T.9/20/11 at 177;
T.9/21/11 atm, 187; T.9/26/11 at 122, 197; T.9/27/11 at 84, 156; T.9/28/11 at 72, 144-45;
T.9/29/11 at 176; T.9/30/11 at 101-02; T.10/3/11 at 164; T.10/5/11 at 188; T.10/6/11 at 37-
38; T.I011011 at 97, 207; T.I0/12/11 at 57.
serve juror demeanor during voir dire. SkHling, 561 U.S. at 386-87; accord State v. Osi-
manti, 299 Conn. 1, 35 (2010). Accordingly, the defendant has not shown actual prejudice.
D. The Trial Court Properly Denied The Other Motions Referred To
By The Defendant
The defendant also claims that the trial court erred in denying other motions that he
made. DB.11; see p. 19 above. Other than stating that motions for continuance and for se
questration of the jury are reviewed for abuse of discretion; DB.35; the defendant does not

brief a claim of error for any of these motions. Accordingly, the claims are inadequately
briefed. State v. T.R.D., 286 Conn, at 214 n.18. To the extent that some of these issues

bear on the impartiality of the jury, the state points out salient concerns below.
1. Motions to sequester jury dated February 24, 2011, and
September 12, 2011
The trial court did not abuse its discretion in refusing to sequester the jury for this
lengthy trial. "Sequestration is an extreme measure, one of the most burdensome tools of
the many available to assure a fair trial. ... Therefore, "it is only when there is shown to
exist a trial atmosphere ... utterly corrupted by press coverage; Dobbert v. Florida, [432
U.S. at 303 ... (1977)]; that unfairness of constitutional magnitude will be presumed." (Inter
nal citations, quotation marks omitted.) Kelly, 256 Conn, at 32. In the absence of evidence i
I

that any juror disregarded the trial court's instructions regarding publicity, or were otherwise
exposed to significant corrupting influences once the trial had begun, the defendant cannot
show prejudice due to a failure to sequester the jury. Kelly, 256 Conn, at 32 n.9.
2. Motion to continue jury selection due to comments of
Senator Prague, dated May 17, 2011
Although denial of a motion for continuance is reviewed for abuse of discretion, even

if the trial court abused its discretion, the defendant was not prejudiced thereby. The com
ments of Senator Prague were publicized on May 11, after the twelfth juror who decided the
defendant's guilt had been selected. See DB.29. In the absence of evidence that any sel
ected juror disobeyed the trial court's injunction to avoid all publicity about the case, the
defendant cannot have been prejudiced by the denial of the continuance.
 3. Motions to Excuse Tainted Jury Panels, dated April 12,
2011, April 20, 2011 and April 27, 2011
The defendant cannot have been prejudiced by the trial court's denial of the motions
to excuse panels he claimed to have been tainted by emotional outbursts of members of
the panels. DB.80. Only one person, RF, served on the jury who was from those panels
and the defendant accepted him after a thorough voir dire which included questions about
the outburst. T.4/20/11 at 233, 246. No person whom the defendant challenged for cause

served on the jury. See State v. Gould, 322 Conn. 519, 530-31 (2016) ("an improper grant
or denial of a for cause challenge is not prejudicial unless the defendant shows that the
ruling resulted in an 'identifiable, objectionable juror actually serving] on the jury that
decided the case...'"). Here, because the trial court imposed no limit on the ability of the
parties to question venirepersons about the impact on them of any emotional outbursts, be
cause RF showed no sign of having been tainted, because no juror served whom the de
fendant had challenged for cause, and because he had not exhausted his peremptory chal
lenges when the last juror who served was selected, the defendant was not prejudiced.
4. Motion for a new trial

On January 10, 2012, after return of sentences of death, the defendant moved for a

new trial, relying on the Penrod evidence and arguments raised previously, asserting that
due to prejudicial publicity, he had been unable to have a fair trial. T.1/18/12 at 1-6. The
trial court denied the motion. T.1/18/12 at 6-9. Because the defendant presents no indepen
dent argument on this issue, the defendant's claim fails for the reasons previously set forth.
5. Other Actions

The defendant lists ten acts of the trial court that, he claims, caused the jury to be
actually prejudiced due to pretriai publicity.DB.80-81. The defendant briefs only the fail-

The ten reasons are: (1) "the trial court erroneously denied the defendant's motion
for a continuance after Senator Prague made her inflammatory remarks. Tr. 5/12/11 at 1-4;
5/17/11 at 60-214;" (2) "the trial court erroneously denied the defendant's motions to dis
miss various jury panels because of prejudicial outbursts by prospective jurors. Tr. 4/12/11
at 20-21; Tr. 4/20/11 at 51-52; Tr. 4/27/11 at 82; Tr. 9/16/11 at 38-42;" (3) "the court
(continued...)
62
ure to change venue, and the state addresses most of the other claims by arguing that the
defendant has failed to establish that the impaneled jury was actually prejudiced. Any inde
pendent claims of error are inadequately briefed. State v. T.R.D., 286 Conn, at 214 n.18.
E. Conclusion

For all the reasons set forth above, the defendant has failed to establish that, due to

adverse pretrial publicity, he was denied a fair trial before an impartial jury.
II. THE DEFENDANT CANNOT PREVAIL ON HIS CLAIM THAT THE TRIAL COURT
IMPROPERLY DENIED HIS CHALLENGES FOR CAUSE

The defendant claims that the trial court improperly denied his challenges for cause
for twelve delineated venirepersons. DB.82, incorporating facts at DB.62-72. He claims that
the trial court erred for two reasons: it improperly relied on the prospective jurors' own
affirmations that they could be fair and impartial, and it improperly relied on the jurors'
responses to the trial court's questions. DB.84. The defendant cannot prevail for two rea

sons. First, because the defendant did not exhaust his forty peremptory challenges until
after the twelve main and six alternate jurors had been selected, denial of challenges for
cause cannot be reviewed. Second, the defendant's claim of error is inadequately briefed.

(...continued)
erroneously denied the defendant's motion for additional peremptory challenges. Tr. 6/9/11
at 156-170;: (4) "the court erroneously denied the defendant's motions to sequester the
jury. Tr. 2/24/11 at 88-106, A664-82;" Tr. 9/12/11 at 20-25; (5) "the trial court erroneously
denied the defendant's request to use a jury questionnaire. Tr. 2/24/11 at 54-59, A630-35;"
(6) "the court denied the defendant's motion to preclude the victims' survivors and suppor
ters from weahng P. Foundation pins in the courtroom. Tr. 2/15/1 at 155-159;" (7) "the court
refused the defendant's motion to order removal of the newspaper boxes right outside the
New Haven courtroom. Tr. 9/16/11 at 18-24;" (8) "the court failed to require sua sponte that
each juror 'immediately inform the court' if 'he or she is exposed to any publicity or commu
nications ... about the case.' Of. Kervickv. Silver HiH Hosp., 309 Conn. 688, 710-711 (2013)
(exercising supervisory authority to direct trial courts to so instruct jurors);" (9) the court
failed to instruct the venirepersons sua sponte at the commencement of their service that
they were not to discuss the case among themselves;" (10) "the court failed to take ade
quate steps to staunch the flood of inflammatory public statements by state agents and wit
nesses, or to allow the defense to respond publicly." DB.80-81.
 As to the first reason, on May 10, 2011, when the twelfth juror was selected:
T.5/10/11 at 75; the state had used 21 challenges, the defendant 28. T.5/9/11 at 179.
When, on June 8, 2011, the defendant filed his motion for forty more peremptory chal
lenges, the parties had just begun to select the first two back-up alternates. See T.9/9/11

(excerpt) at 12. When the trial court heard argument on the motion, the defendant had just
exercised a peremptory challenge after the trial court denied his request for dismissal for

cause and, as a result, the defendant had one peremptory challenge left. See T.9/9/11 at
57. A full complement of twelve jurors, six alternates and three backup alternates was sel

ected by June 14, 2011, and each party had exhausted all of its challenges. T.6/14/11 at
127; 170. The backup alternates were dismissed before evidence began. T.9/19/11 at 19-

20. Only the first twelve jurors selected actually participated In the verdicts finding guilt and
no person challenged for cause decided the defendant's guilt.

The focus of any claim relating to jury impartiality must be on those jurors who actu

ally sat. See Ross v. Oklahoma, 487 U.S. at 86; accord U.S. v. Martinez-Salazar, 528 U.S.

304, 313 (2000) (so long as jury that sits is impartial, that defendant had to use peremptory

challenge does not violate either sixth amendment or federal rule).

[This Court has] long held that "even an improper denial of a challenge for cause
provides cause for reversal only if 'the party [who makes the challenge] subse
quently exhausts all of his or her peremptory challenges and an additional chal
lenge is sought and denied.'" (Emphasis in original.) State v. Kelly, 256 Conn,
[at] 31[]. quoting State v. Esposito, 223 Conn. 299, 313, 613 A.2d 242 (1992)....
See State y. Vitale, 190 Conn. 219, 225, 460 A.2d 961 (1983) ("[ujniess all his
peremptory challenges have been exercised before the completion of jury selec
tion, It is presumed that no juror was permitted to serve whom the defendant
regarded as biased or unsuitable, although he might have preferred others").

State V. Campbell, 328 Conn. 444, 476-77 (2018). Thus, although the trial court denied for-
cause challenges when the defendant had no peremptory challenges left, all of those
jurors, selected as backup alternates, were dismissed before evidence began, and no juror
who decided the defendant's guilt was one whom the defendant had challenged for cause.
 Second, the defendant's claim that the trial court committed error when it denied his

request for excusals for cause is inadequately briefed. "The trial court is vested with wide
discretion in determining the competency of jurors to serve, and that judgment will not be
disturbed absent a showing of an abuse of discretion." State v. Esposito, 223 Conn. 299,
310 (1992). The defendant presents only general statements, applicable to all of the jurors,
that the trial court relied on improper factors when it denied his challenges for cause, but
does not, with respect to any particular juror, identify what that juror said that overrode the
trial court's judgment that the juror could be fair and impartial, nor does he identify any
questions that the trial court asked that improperly influenced the prospective jurors'
responses. In short, the defendant fails to apply the law to any facts. Thus, this claim is
inadequately briefed. State v. T.R.D., 286 Conn, at 214 n.18.

III. THE DEFENDANT'S RIGHT TO DUE PROCESS WAS NOT VIOLATED BY THE
PRODUCTION OF THE HAYES LETTERS AFTER THE EVIDENCE HAD
CLOSED, AND THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION
WHEN IT DENIED THE DEFENDANT'S MOTIONS TO REOPEN, FOR A
CONTINUANCE AND FOR A MISTRIAL

The defendant claims that his due process rights to a fair trial were violated where,
after evidence had closed, the state produced 132 pages of handwritten letters from Steven
Hayes to a woman in North Carolina and the trial court denied his motions for continuance,

to reopen the evidence, and for a mistrial. DB.87. Although the defendant briefs this as a
claim under Brady v. Maryland, 373 U.S. 83 (1963), because the issue was litigated via
motions for continuance, to reopen and for mistrial, the state will first address the rulings
made by the trial court. The trial court properly exercised its discretion when it denied the
defendant's motions for continuance, to reopen and for a mistrial; furthermore, even If
reviewed under Brady, the evidence was not material.

A. Additional Facts Pertinent to this Claim

1. Motion for continuance

Evidence began on September 19, 2011. The state rested on October 3, 2011. On

October 4, the trial court considered various motions, and, on October 5 and 6, the defend-
ant presented four witnesses, including Dr. Leo Shea, who had exannined the defendant,
and rested his case. October 6 was a Thursday.
On Tuesday,^® October 11. 2011, the defendant filed a motion for a one-day continu
ance. D.App.(l) at A380; T.10/11/11 at 4. Defense counsel represented that on the prior Fri
day, October 7, the state had given them 132 pages of letters handwritten by Hayes that
described other crimes that he had committed. Id. at 4-5. Counsel cited passages where
Mr. Hayes states, and I quote. "The [P] invasion was a dry run in a partnership
between Josh and myself. I do now realize that had we gotten away, I would
have killed Josh, he was not worthy of my partnership." He also says, "I have 17
killings throughout the northeast United States, and also dozens of date rape
victims." As put in the motion, what he describes, in terms of other crimes, pro
vides an MO for the crime that was committed in the [P] house that night. For in
stance, he talks about 17 killings, each of those killings he describes was pre
ceded by a rape, just as occurred in this case. Also, after the rape, each of those
17 killings occurred by strangulation, which also happened in this case.

Id. at 5. Defense counsel stated that a continuance was necessary to conduct an investiga
tion into the letters. Id. at 5-6. The state opposed the continuance, and stated that it had
turned the letters over to the defendant as soon as it got them from the DOC. Id. at 6.
The trial court, noting that the jury was ready, denied the motion for a continuance,
indicating it might reconsider the motion after closing arguments. T.10/11/11 at 7. It stated
that it did not see how the information was exculpatory, given that the state's theory was
that Hayes had committed the rape and murder of JHP as a principal. Id. at 7. Nonetheless,
the trial court agreed that it could not at that time determine that over one hundred pages
contained nothing exculpatory, and that the court would need to hear more later. Id. at 8-9.
2. Exhibit BBB-i

The four letters handwritten by Hayes are set forth in the defendant's appendix at
A109-247. In large part they describe in sadistic detail Hayes' claimed sexual assault, tor-

The defendant asserts that October 11 was a Monday. DB.89. It was a Tuesday.
T.10/6/11 at 37-38 (trial court reminding jury to report for closing arguments on Tuesday
because Monday was Columbus Day, a holiday).
ture and murder of some of his seventeen claimed victims. As is pertinent to the Cheshire
murders, the first letter begins by stating that he had "received your August letter." D.App.
at A112. Hayes states that "events show Josh while [he] had the proper evil intent lacked in
the most serious aspects, commitment and control." Id. at A112. Hayes brags that he has
"17 kills" and took trophies from them all, and discusses throughout the letters that the tro
phies were sneakers and that he used them as instruments in his sexual assaults. Id. at

A113, see e.g, id. at A126-27: A132-33. A152. He stated that the Cheshire crimes were
a dry run in the partnership between Josh and myself. I do now realize had
we gotten away I would have killed Josh. He was not even close to being
worthy of my partnership. His sloppiness and lack of control would have been
my downfall, was my downfall.

Id. at A113. "As for July 22, 2007 I'll say this for me. The 11 yr old was Joshes. The 17 yr
old was mine As for the kills the girls are Joshes. He poured gas on them and set the
fire. As for the Mom she was my kill." Id. at A128.
The second letter has a facsimile notation at the top with the date of 9/29/2011 Id.
at A131. This letter describes in graphic detail the rape and murder of a woman who Hayes
claimed to have been his tenth victim.

The third letter purports to tell the story of the Cheshire murders. Id. af A158.
The motive behind the home invasion was money. Before we went in we
knew we were probably going to the bank, unless we found $20,000 in the
house. But that was not the case. What is the case though is before we went
in the plan was to kill everyone and burn the house to the ground. That was
Joshes first fuck up. When he hit [WP] with the bat, he was suppose to kill
him then. Christ he swung 5 times and still failed. He told me he killed before.

Id. at A158-59. After asking the two adults whether there was money in the house (the an
swer was no) and reviewing their bank statements, "we discussed what to do next." Id. at
A159. They decided to take "the Mom" to the bank, because "Josh did say there was no

The defendant, DB.88, asserts that this notation establishes that the letters were
in the possession of the state as of September 29. The record does not indicate what that
notation means.
way [the Dad] would make it through the night." Id. at A159-60. "Now we needed to decide
how much. We batted around numbers and settled on $15,000 the max we could get with
out ra[i]sing red flags." Id. at A160. While they waited for the bank to open, "Josh went to

the 11 yr olds room" and Hayes drank beer. Id. At about 3 a.m., Hayes called the defendant
to come from the 11-year-old's room and told him they needed a plan. Id.
So as I said we already decided everyone was going to die and the house
would be burnt I told him I checked the garage and there was no gas there
so we decided one of us would go around 6:00 to get gas. We still had at
least 3 hours to kill. So Josh said since we were going to kill everyone any
way, we should have some fun with the girls. I said fuck it why not.

Id. at A160-61. They both went to check out the seventeen-year old, and Hayes was not
pleased with her as a prospective assault victim. Id. at A161. They then went to check out
the 11-year-old, and again, Hayes was disappointed, but was interested in her because she
was a virgin. Id. at A161. "But Josh really wanted the 11 yr old. ... So I told Josh to go for It
and I went to my beast." Id. at A161-62. Hayes then graphically described extended and
repeated sexual assaults of HP and the search for and seizure of a sneaker trophy. Id. at
A162-63. Hayes took the trophy downstairs, put it in his bag, and then encountered the
defendant in the hallway when he came back upstairs.

He told me he skull fucked the 11 yr old a couple times and ate her pussy and
shot a load of cum on her tits. I was like good for you. He then said he was
going to take her ass and would I like to watch. I thought about it and said we
will be right in. So I took my 17 yr old, tied her hands behind her back and
walked her to the 11 yr olds room. I told her we had a show to see. I sat her
down against the wall and Josh got the 11 yr old down on her hands and
knees. He proceeded to cut her clothes off (kind of cool) and then got behind
her. As he started to enter her ass she began to scream. So I decided to keep
her quiet. I got in front of her face, lifted her head and stuck my cock in her
mouth. Yippie my first 11 yr old. So I skull fucked her as Josh fucked her ass.
He drove her fonA^ard I drove her back. All as the 17 yr old watched from the
side lines. I have to say this skull fucking was pleasantly different. Her gag
and toung (sic) reflexes were working perfectly, but there was an added
bonus. The screaming and grunting from Josh fucking the hell out of her ass
cause new and different motions to the 11 yr old throat. It actually made it
better, much better. Too bad I'll never get to do that again. Anyway I finished
off nicely thanked Josh for sharing and told him the 17 yr old was his when
ever he grew tired of his toy. Back to the 17 yr olds room we went.
Id. at A163-64. Hayes detailed his further sexual assault of HP, after which he retied her to
the bed. W. atA164-65.

It was 5:45. I went to see Josh and he was skull fucking his 11 yr old again.
He said he refucked her ass and was now making her clean his cock (gross).
After he was through he came into the hallway to see who would get the gas.
He told me he wanted to wash his 11 yr old so I said I would go get the gas.

Id. at A165. Hayes then got the gas, and thereafter they moved the defendant's car to a

condominium parking lot. Id. at A165-66. When they got back to the house, they made their
plan: Hayes would take JHP to the bank, and when they returned, Hayes wanted time to

sexually assault and kill HP, and Josh would "play some more with his 11 yr old." Id. at
A166. After Hayes had killed HP and Josh had "killed his 11 yr old, I'd take out the mom

and he could have the Dad. We would pour the gas, light the fire and split with the money.
Josh agreed." Id. at A166. When Hayes returned from the bank, Josh told him that the Dad

was dead, and that "he killed the kids." Id. at A167. Hayes was furious, but all that was left
now was to kill "the mom," pour the gas, light the fire and leave. Id. at A167. The defendant
suggested I could kill the mom and he would start pouring the gas upstairs. So
we went to the den, Josh took a gallon upstairs and I went to the mom. [Hayes
raped and killed JHP. When he had finished] Josh came running into the room
screaming "the Dad got away" "the Dad got away". "We have to go quickly." He
ran back upstairs with his gas, I grabbed a gallon poured it on the mom and in
the den, then grabbed the other gallon poured it in the kitchen, bathroom,
hallway and halfway up the stairs where I met Josh. We both tossed our jugs
upstairs and began our escape. When we got down stairs he pulled the matches
from his pocket and lit the kitchen and "woffe" everything went up.

Id. at A167-68. Hayes described their unsuccessful attempt to flee. Id. at A168-69. Hayes
reiterated that had they gotten away, he would have killed the defendant. Id. at A169.

The final kick to the crotch was when I learned not only did Josh not kill the Dad
like he said he did, he also did not kill the two girls. Not directly at least. What
that coward did was pour gas on them when they were still alive and lit them on
fire. As you know I'm no saint. I gave you a glimpse into my dark side. What
Josh did repulses me. Kills are suppose to be personal something grand be
tween the killer and his victim. Josh is evil. But his evil lacks control and order.

Id. at A169-70.
 The final letter was dated 9-22-11. Id. at A172. In this letter, as he described another

murder, Hayes relates in detail his hunt for trophy sneakers and a target for rape murder.
Id. atA173.A175. A176, A192.

Even though 1 did have some sexual delight with [HP] the night of the home
invasion and even though I did take a trophy she was not my kill [unreadable].
Josh killed the girls, the fucken asshole robbed me of [HP].

Id. at A189-90.

3. Closing arguments
In its opening argument, the state focused on the known defense, i.e. that the de

fendant lacked the intent to kill to support convictions of murder. The state argued that the
jury could rely on the following facts to infer intent to kill: the defendant drove Hayes to the
P house, let Hayes in through the sunporch and helped tie up the victims: T. 10/11/11 at 29;
he stood guard while Hayes bought the gasoline: id. at 30; after Hayes said the family had
to be killed, the defendant did nothing to stop it; id. at 31; indeed he stood guard and gave
Hayes directions back to the house after he bought gas; id. at 32; while Hayes was gone,
after the defendant untied HP to let her go to the bathroom, and untied MP to let her take a
shower after he had sexually assaulted her, he then tied them both back up; Id. at 32; and
the timeline of events after the two conclude they must flee means that there "is absolutely
no way" that Hayes atone poured the gasoline. Id. at 33.

Ladies and gentlemen, make no mistake about it, this intrusion into the [P]
home was Mr. Komisarjevsky's idea. It was he alone who saw [JHP] at the
Stop & Shop hours before the break-in. It was the defendant alone who
followed them home and stalked them to gain the knowledge as to where they
lived so he could come back to the home when the time was right.

Id. at 33-34. The state emphasized that the defendant's motive for the crime was his desire
for MP, that he saw her in the Stop & Shop and formulated the plan. Id. at 36. Further evi
dence of intent to kill could be found in the defendant's motive to destroy DNA evidence of
his assault of MP; id. at 38; the defendant's summary in his statement of Hayes' rant about
needing to burn the house to eliminate DNA; id. at 39; and the manner in which the gas
was poured: gas was poured down the stairs, the only way out for the girls. Id at 41-42.
Referring to Dr. Shea, the expert who testified on behalf of the defendant, the state said:
Dr. Shea. I'll just spend a moment with Dr. Shea. He came in and told you
that this defendant had - well, he didn't say he didn't have an intent, he didn't
know what his intent was that night, but he did tell you that he had trouble
making quick decisions under stressful situations, which was novel. He also
mentioned that the defendant was someone who did attempt to manipulate
him, although the doctor was too smart for him and he couldn't do it. Again,
keep in mind that Mr. Hayes ... was no Dr. Shea.

Id at 45. The state also urged the jury to remember the many opportunities that the defend
ant had to reconsider when Hayes was out of the house and he knew that Hayes was com
ing back to burn the house down; id. at 46-47; and that the defendant, according to his own
statement, did nothing to save the girls but close their bedroom doors. Id. at 49.
During the defendant's closing argument, counsel acknowledged that the defend
ant's confession established his guilt of kidnapping, burglary, assault, and sexual assault.
Defense counsel stated however, that "on July 23rd of 2007, he did not intend that anyone
should die." Id. at 54. The defense highlighted the following as evidence that the defendant
did not have the intent to kill: Hayes was disturbed, had a collection of women's sneakers
upon which he or someone had written pornography focused around feet and sneakers^°
and he took HP's sneakers; id. at 61, 71; the defendant was "a damaged lad" with neurolo
gical problems and was "ready to be used by Steven Hayes;" id. at 62-63; "all the impetus
for this thing seems to come from Hayes," based on the multiple phone calls Hayes made
to the defendant prior to the break-in; id. at 64-65; it was Hayes who was desperate for mo-

The defendant appears to have based this reference to pornography on questions

defense counsel asked Detective Francis Budwitz about the search of the home of the
mother of Hayes. After the state's objection and the excusal of the jury, the defendant
asked Budwitz whether the police had seized sneakers with pornography on them and por
nographic pictures involving feet; Budwitz remembered seizing sneakers and pornography,
but did not remember what was written on the sneakers or that the pornography involved
feet. T.10/5/11 at 73-75. When the jury returned, the defendant elicited only that the police
had seized a number of sneakers, that the sneakers had things written on them, and that'
Budwitz did not recall what was written. T.I0/5/11 at 75-76; see also T.9/27/11 at 117-18.
ney so he could get out of his mother's house; id. at 65; the defendant entered the house
first only "because he is a lot more nimble than Hayes," id at 66; the defendant struck WP
to disable but not to kill as evidenced by asking him about other people in the house and by
the pillows the defendant gave him for his comfort when the defendant tied him up in the
basement; id. at 66-67, 69, 101; the defendant insisted in his statement that he told Hayes
he would not burn the house down with live victims in it; id. at 70-71, 75-77, 98-100; Hayes
took items from the house without the defendant's knowledge and put them in his car; id. at
71; Hayes stated that he himself would kill the three women; id. at 77; Hayes poured the
gas in the house, a continuous pour pattern, id. at 78-79; Hayes lit the match; id. at 80; the
defendant tried to help the girls by closing the bedroom doors and by telling the police there
were two girls upstairs; id. at 79-81, 102; the gas on the defendant's clothes could have
come from his construction work; id. at 87-89; his failure to save the girls is not evidence of
intent where Dr. Shea opined that the defendant could not cognitively make a quick deci
sion; id. at 99-101; and the defendant did not bring to the house a lethal weapon, id. at 101.
Defense counsel also contested the nature of the sexual assault of MP: in his con

fession, the defendant had acknowledged performing oral sex upon her, then ejaculating on
her abdomen, but argued that because the swab from the defendant's penis had no DNA
from MP, the swabbing of MP's rectum must have been done in a way to contaminate the
swab with the defendant's DNA on her exterior. Id. at 94-96.

Defense counsel concluded his argument with the following:

That [photograph], ladies and gentlemen, is Steven Hayes. It was he who en
couraged Joshua to bash [WP] over the head. It was he who came up with the
plan to burn the house down, first by moving the people outside. It was he who
came up with the plan to burn the house down with its inhabitants inside. It was
he who ignored Joshua Komisarjevsky when he said that's not going to hap
pen, that's just not going to happen. There is no doubt that it was he who went
and bought the gas. I'm sure the prosecution won't argue that it was he who
poured the gas. It was he who lit the match. It was he who took either a stock
ing in his hand and strangled [JHP], raped her either before or after he stran
gled her. It was he who covered her body with so much gasoline that she was
unrecognizable after his crimes. He has been tried and he has been punished.
 Joshua Komisarjevsky - Stand up, Joshua.
Joshua Komisarjevsky, as [fellow defense counsel] said in the beginning of this
trial, has participated in crimes that may shake your confidence in humanity.
He's confessed to crimes that could send him to jail for the rest of his life, but in
Cheshire on July 23rd, he did not intend that anyone should die.

Id. at 106-07.

On rebuttal, the state addressed certain factual claims that the defendant had made

and the credibility of the defendant's statement. Id. at 107-119. The prosecutor then stated;

Now, let me move on to who's in charge because, obviously, you have heard
this morning from defense that it's Mr. Hayes who's calling the shots. The
defense would want you to believe that Komisarjevsky was a follower, not
able to make decisions on what to do, not having intent to kill, not able to
function well under time constraint. You may find the evidence shows that not
only was Komisarjevsky the leader, but he is a gifted manipulator.

Id. at 119. The state again referred to Dr. Shea's testimony that the defendant was superior

in some areas, including language use, and that the defendant had been trying to manipu
late Shea. Id. at 120. The state contested the interpretation of the many phone calls over

six hours from Hayes to the defendant, stating that rather than showing that Hayes was in

structing the defendant, it showed that Hayes "is kind of this needy guy." Id. at 121.
Komisarjevsky leads Hayes to the scene early that Monday morning, takes
the lead in entering the home, takes the lead in doing the assault, and Komi
sarjevsky at some point later that morning between 6:30 and seven, he is dis
tressed with Hayes because Hayes isn't following his instructions. He is not
following Komisarjevsky's instructions. ... This is Komisarjevsky's statement.
"I was getting annoyed with Steve again Again, I'm annoyed with him, he is
not doing what he has to do because there weren't that many shades
downstairs and he was constantly walking back and forth across windows."...
"I got to the point where I was getting so frustrated, that I just went back
upstairs again to check on the daughters and began, struck up a conversation
with KK." His new best friend. "Um, got her some more water."
He's controlling everything here. He's calling the shots.

Id. at 121-22. The state proffered that, when Hayes went to get the gas, the defendant took

photographs of MP and assaulted her and that demonstrated that this incident was

motivated by the defendant's first viewing of MP at the Stop & Shop. Id. at 122. The state
noted that the defendant called Hayes several times while Hayes and JHP were at the bank
73
"directing the operations from home base." Id at 123. In addition, in the defendant's state
ment, many references were in the first person singular, not first person plural. Id. at 124.
Now, where was Hayes at the time of this home invasion? He was 44,
living with his elderly mother, sleeping on a couch, bickering with his
brother about sleeping on the couch or the floor in the living room,
walking around with his bottle of liquor, wandering off on the weekends,
coming back, using his mother's car.
Think about Komisarjevsky's and Hayes' relationship. Hayes is an older
guy, a depressed loser, eagerly waiting for his younger partner, Komi-
sarjevsky, to come up with a plan to tell him when, where, and what to
do. ... Dr. Shea testified that he was a controlling person, if he wants to,
he could take control. Hayes, as evil as he was, was the person, the
flunky, the puppet with Komisarjevsky pulling the strings and controll
ing every move. ... Molesting [MP], he had photographs on his phone, he
knew they could find that out. You may find that the fate of this family was
sealed when Komisarjevsky raped [MP]. The rape and killing of [JHP] came
after Komisarjevsky already raped [MP] and left his DNA inside of her.

(Emphasized language relied on by defendant). Id. at 124-25. Finally, the state concluded:
Is there any reasonable doubt from the moment Komisarjevsky saw
[MP] and [JHP] at Stop & Shop, that it was not Hayes who decided who,
what, where, and how? He was the first one to use physical and then
sexual violence on this innocent family. He was the one that directly
caused the deaths of [MP] and [HP].
I submit to you that there is no doubt, no reasonable doubt, no doubt at
all as to Mr. Komisarjevsky's role. He, indeed, was the leader. He knew
what was going to happen and he also tragically did it. Thank you.
(Whereupon, the CD [of defendant's police statement] was played.)
"If anyone had anything, he would not have the most to worry about DNA, it
would have been me."

(Emphasized language relied on by defendant). Id. at 126.

4. Post argument discussions
After the state concluded its opening summation, the trial court noted that the de
fendant had not yet given it copies of the letters and that, if defense counsel wanted the
trial court to review them, they had to get copies to the court. T.I0/11/11 at 52. Following
the state's rebuttal argument, the defendant objected on various grounds to the state's arg-
uments, including that he was surprised by the state's rebuttal argument that the defendant
was in charge and that that was inconsistent with the theory presented in the Hayes case,
which actually leads me into my - if I may just bridge into another topic, which
is Defense Exhibit BBB for identification, the Court has it, I'm sure the Court is
going to read it in full. In those writings, Mr. Hayes makes it very clear that he
was the leader, in fact, the quote in the Motion for Continuance we cited to
the Court earlier that Mr. Hayes says that he was trying out Mr. Komisarjev-
sky, it was a dry run to see if he was worthy of being his partner. And in the
over 100 pages of [drivel] by Mr. Hayes, he makes it quite dear that he's the
mastermind, which prior to the argument wasn't completely relevant, although
we thought it was. Now, it's even more relevant what Mr. Hayes writes be
cause it totally rebuts, what Mr. Hayes writes, that Mr. Komisarjevsky was
being the leader, and I think that was very clear in the rebuttal argument.

Id. at 133. The trial court overruled the objections. It noted that it was 3:30 p.m., and "the
record shows that I've been asking since early this morning for a copy of the letters, and if
the copy of the letters had been given to me prior to the lunch break, ... which I was beg
ging to have happen, I could have more fully addressed them now ...." Id. at 134-35. Be
cause it could not rule on any motions respecting the Hayes letters right away, the trial
court stated that it would begin the jury charge that afternoon, and would hear any argu
ments about the letters that counsel would like to make the next morning before completing
the charge and giving the case to the jury. Id. at 135, 136. This schedule would
give the defense adequate time to get their thoughts together tonight to tell me
tomorrow morning exactly what they are asking the Court to do in terms of re
opening the case or whatever, address questions of admissibility, ... both in
terms of relevance, and of any hearsay exception because those are two differ
ent hurdles that this must make, and I'll be happy to hear you out. I have made
that clear all along. Just given the present - the sequence of the presentation to
me, I haven't been able to do it quite in the sequence that you might have liked.

(Emphasis added). Id. at 135. The trial court directed defense counsel to be prepared the
following morning to tell it "with precision" what they wanted. (Emphasis added). Id. at
138. The trial court then delivered the first part of the charge to the jury. Id. at 140-207.
The following morning, Wednesday, October 12, the trial court stated that it had read
Defense Exhibit BBB-i, and defense counsel noted that they had filed two motions that they
wished the trial court to address, motions for mistrial and for a continuance. First, counsel
75
moved for mistrial, on the grounds that the state had changed its theory of relative culpabi
lity, in that during the Hayes trial it had never argued that the defendant was the leader, and
that in its opening argument to the jury in this case, it did not mention anything about the
defendant being the leader or a manipulator. T.10/12/11 at 5-6; but see T.10/11/11 at 33-

34, 36, 45. In particular, defense counsel noted that the information had charged the de

fendant as an accessory with respect to the rape and murder of JHP, but in closing argu

ment, the state argued that the defendant controlled and directed it. T.10/12/11 at 8-9. The
trial court observed that the state had argued in the Hayes trial that it was a joint enterprise,

which is not inconsistent with someone being the leader. Id. at 7. The trial court also noted

that the state had never varied from its argument that Hayes was the actual person who
caused JHP's death and the information explicitly charged the defendant as an accessory

with respect to the rape and murder of JHP. Id. at 8. The state responded that its argument
was in rebuttal to the defense use of Dr. Shea's testimony to establish that Hayes was the

leader. Id. at 9. The trial court denied the motion for mistrial.

The trial court then noted that it had in effect granted the defendant's motion for a
one-day continuance to deal with Exhibit BBB-i, and asked if there was anything more the

defendant wished to present. T.10/12/11 at 10. The defendant orally moved to reopen his
defense to offer the testimony of Steven Hayes. Id. at 11. In answer to the trial court's

question, defense counsel stated that he had not communicated with Hayes' "direct coun

sel." Id. at 11. The trial court noted that it was hard to imagine that Hayes would not assert
his Fifth Amendment rights. Id. at 11-12.
Defense counsel then stated that the exhibit "presents another problem, which
could form the basis for a Motion for Mistrial based on a tardy providing of the letters," in
that the DOC was part of the state. (Emphasis added.) T.10/12/11 at 12. The defendant
noted that although the fourth letter was dated September 22, the first letter begins by stat
ing that Hayes had received "your letter" in August. Id. at 12-13. The following ensued:

THE COURT: Tell me exactly what you want me to do now.

 [DEFENSE COUNSEL]: Well, the threshold thing is we just really haven't had
enough time, that's why we ask -
THE COURT: Are you also asking for a continuance?
[DEFENSE COUNSEL]: Perhaps.
THE COURT: I'm assuming that you don't have Mr. Hayes here ready to
testify, am I correct?
[DEFENSE COUNSEL]: That is correct.
We've had very little time to actually go through those documents and figure
out what is the evidentiary potential of those documents. ... It's pretty clear, In
reading his depraved letter, that Mr. Hayes outlines details perceived by him
and written by him as to the events that occurred in the [P] home; perhaps,
more importantly, as he details other crimes he's committed, he develops an
MO that is similar to this crime. For instance, Mr. Hayes -
THE COURT: If you take him at face value. ... [I]t seems to me that this
would be, at a minimum, a bare minimum, a mixed blessing for you because if
you view Mr. Hayes as truthful, he is one of the great serial killers of modern
American history. He claims to have killed 17 people prior to this incident in
pretty horrific ways, but he also says extremely, and I mean extremely incul
patory things about your client that it would be hard to imagine you wanting to
put on. He says that Josh had the proper evil intent, he says that Josh poured
gas on them and set the fire. ...
I need your reaction to this. He says Josh said, suppose we're going to kill
everybody anyway, this is at an early stage, he says that Josh announces
that he is going to sexually assault the 11-year-old girl which later on Mr.
Hayes purports to have personally witnessed. He says that, he says, again,
that Joshua was the one who actually killed the girls. And he says that they
went into this enterprise with the plan, the joint plan of killing everybody. So,
under these circumstances, I just don't see how, if it's true, that it helps you at
all, and, of course, if it's not true, then 1 don't see how it could be relevant. ...
And the question is: That when you have all of these inculpatory things, in
fact, damning things that are contained in this, how reopening the evidence to
allow this in would avoid a miscarriage of justice? I just don't see it. ...

(Emphasis added.) T.10/12/11 at 13-16. Defense counsel proffered the following as a basis
for finding the tetters exculpatory:
the State at the last hour has now argued that Mr. Komisarjevsky was the
leader, Mr. Komisarjevsky was pulling the strings, if you will, as Mr. Hayes
was the puppet, given that theory, it seems to me that it's exculpatory where
Mr. Hayes in his letter, right at the beginning of the letter, says that. "The [P]
invasion was a dry run, and the partnership between Josh and myself, I now
realize had we gotten away, I would have killed Josh. He was not worthy of
my partnership." This clearly demonstrates that Hayes was the mastermind
77
 and the leader. And I would suggest to the Court that, in and of itself, is excul
patory in rebutting the State's theory that Mr. Komisarjevsky was the leader.
Also, ... [i]f you believe what Mr. Hayes says, it's very exculpable in terms of
the evidence that shows his MO. His MO was consistent. He talks about kill
ing 17 women, he talks about it in each situation, kidnapping them, which oc
curred in this situation, tying them up, which occurred in this situation, raping
them, which occurred in this situation, and then killing them by strangulation,
which tragically occurred in this situation as well. So, it seems to me that that
is also information that would indicate that, unbeknownst to Mr. Komisarjev
sky, that when they entered that house, Mr. Hayes had an agenda that he
hasn't exposed to Mr. Komisarjevsky, which was to further his MO and to fur
ther his depraved actions that he had done in the past.
And in furtherance of the MO, ... when Mr. Hayes' home was searched, they
found numerous pairs of female sneakers. ...[ijf there is anything in all those
depraved writings, he talks constantly about this sneaker fetish that he has.

T.10/12/11 at 17-18. The trial court noted that defense counsel had pointed out in his clos
ing argument the fact that Hayes had a collection of sneakers and had taken one of HP's
sneakers. Id. at 19. Defense counsel then quoted other passages where Hayes detailed the
sadism of his modus operandi, stated that it demonstrated Hayes' intent and premeditation,
and was relevant to the defense. Id. at 19-20.

Defense counsel also argued that because of the timing of the disclosure of the
letters, the defense had been unable to investigate such things as when the state came into
possession of the materials, the identity of the woman to whom the letters were addressed,
and the content of the letter from the woman. T.I 0/12/11 at 21-22.

The state responded that the letters were hearsay and unreliable, and that it
objected to the defendant's motion. T.10/12/11 at 22.

The court ruled: "[T]reating this both as a motion to reopen and a motion for continu

ance, it seems to me both motions must be denied." Id. at 22-23; D.App. at A1524. The trial
court reviewed the standard for reopening a case, and stated "the precise legal question
before me is: Is it necessary to reopen the case to prevent a miscarriage of justice? And
with respect, I believe, given the materials presented to me, the answer is no." Id. at 23.
First, the particular proffer is ... that Mr. Hayes will testify, but in the last 24
hours, there has been no effort apparently to reach Hayes' attorney, his trial
 attorney is in this very building. And, frankly, it's unimaginable to me that Hayes
would not take the Fifth Amendment, he is facing the death penalty. ... If he
takes the Fifth Amendment, he becomes unavailable, and then the question is
whether this is a - if you will excuse me. a statement against penal interest. ...
and statements against penal interest come in ... only if they are trustworthy.
Id. at 23-24. The trial court then set forth the standard for the admission of statements

against penal interest under Conn.Code Evid. § 8-6(4) and ruled that the letters were

inadmissible under that rule. Id. at 24-25.

Most importantly, ... I don't think that it's - that the defense can appropriately
move to reopen this case based on this document and based on certain infer
ences that it kind of, with respect, cherrypicks from certain statements in the
document without ignoring other portions of the document which are quite
damning to Mr. Komisarjevsky.
In fact, I would say that if this document. Exhibit BBB. were to come into evi
dence, this would be the seal of Mr. Komisarjevsky's doom. Mr. Hayes says
that they - Komisarjevsky has admitted prior killings, Mr. Hayes said that they
went into this enterprise with the plan of killing all the people in the house, in
cluding [WP]. Mr. Hayes said that he personally witnessed Komisarjevsky sex
ually assault [MP], and Mr. Hayes says that it's Komisarjevsky that poured the
gasoline. So, frankly, how the admission of this could benefit Mr. Komisarjev
sky, even if it were ultimately demonstrated to the jury's satisfaction that Mr.
Hayes was the leader in this horrendous enterprise, it's just beyond me. And I
don't see this as, under the circumstances, meriting either a continuance or the
reopening of the evidence.
Id. at 25-26. Finally, the trial court invoked Conn.Code Evid. § 4-3, and concluded "I think
under these circumstances, for reasons that I have tried to explain reasonably fully, this
does not merit either [a] reopening of the evidence or a continuance at this time, and it is
time for this case to go to the jury." Id. at 26-27. The trial court noted that, despite the time
spent by counsel arguing who was in charge at the scene, "I think it should be quite clear
from my charge that leadership and following are not elements of the crimes." Id. at 28.
Defense counsel then moved for a mistrial based on the late production of the
letters. T. 10/12/11 at 29. Defense counsel stated that they did not know when these letters
came about, or who the woman recipient was. Id. at 29. Defense counsel also stated, citing
the sneakers found in Hayes' home, that there was corroboration of the claimed murders.
T.10/12/11 at 30. The trial court denied the motion. Id. at 30.
 B. The Trial Court Properly Denied Motions To Reopen And For A
Continuance

1. Standard of review

Trial court decisions regarding reopening of evidence after the parties have rested
and regarding a continuance are reviewed for abuse of discretion. State v. Breton, 264
Conn. 327, 356-57, cert, denied, 540 U.S. 1055 (2003). "If the trial court finds that inadver
tence or some other compelling circumstance ... justifies a reopening and no substantial

, prejudice will occur, it is vested with the discretion to reopen the case." State v. Carter, 228
Conn. 412, 421 (1994). "The purpose ... is to preserve the fundamental integrity of the trial's

truth-finding function." (Internal quotation marks omitted.) State i/. Montini, 52 Conn. App.
682, 687, cert, denied, 249 Conn. 909 (1999). To establish a due process violation, "greater
prejudice must be shown than in refusals to receive evidence offered in the regular course
of trial." State v. McKnight, 191 Conn. 564, 580 (1983). To show a violation of due process,
"[i]t must be shown ... that the ... evidence was of such importance to the achievement of a
just result that the need for admitting it overrides the presumption favoring enforcement of
the state's usual trial procedures." Carter, 228 Conn, at 421. To determine whether a court

abused its discretion in denying a motion to reopen, this Court looks to see if the omission
of evidence has caused an injustice. Carter, 228 Conn, at 421. Every reasonable presump
tion is given in favor of the correctness of the trial court's ruling. Carter, 228 Conn, at 421.
To determine whether the trial court acted reasonably in denying the defendant's
request to open his case, this Court must first determine whether the Hayes letters would
have been admissible had the defendant proffered them during the defendant's case. Car
ter, 228 Conn, at 422. If they would have been admissible, then this Court must determine
whether the trial court could reasonably have excluded the evidence because it had not
been tendered until after the defendant had rested his case. Carter, 228 Conn, at 422.

Except in special circumstances, "appellate courts should generally defer to the trial court's
judgment in resolving the admissibility of evidence offered after the parties have rested."
State V. Roman, 224 Conn. 63, 71 (1992), cert, denied, 507 U.S. 1039 (1993).
 Regarding motions for continuance, "[t]he determination of whether to grant a re
quest for a continuance is within the discretion of the trial court, and will not be disturbed on
appeal absent an abuse of discretion.... [0]n appeal, [this Court]... must determine whether
the trial court's decision denying the request for a continuance was arbitrary or unreason-
abl[e]." (Citations omitted; internal quotation marks omitted.) Breton, 264 Conn, at 356-57.
Although the defendant has alleged a violation of a constitutional right, on appeal
this Court first considers whether the trial court's ruling violates the rules of evidence. State
V. Annulli, 309 Conn. 482, 491 (2013). If, after reviewing the trial court's evidentiary rulings,
this Court concludes that the trial court properly excluded the proffered evidence, then the
defendant's constitutional claim necessarily fails. If, however this Court concludes that the
trial court improperly excluded the evidence, then it must analyze whether the defendant
was deprived of his right to present a defense. Annufli, 309 Conn, at 49'l-92.
To the extent [that] a trial court's admission of evidence is based on an inter
pretation of the Code of Evidence, our standard of review is plenary.... We
review the trial court's decision to admit evidence, if premised on a correct
view of the law, however, for an abuse of discretion.

(Citation omitted; internal quotation marks omitted.) State v. Miguel C., 305 Conn. 562,
571-72 (2012).

2. The Trial Court Properly Exercised its Discretion

As noted above, the first step for detennining whether the trial court abused its dis
cretion in refusing to reopen the evidence is to determine whether it abused its discretion in

ruling that the letters were inadmissible. Carter, 228 Conn, at 422.

a. The trial court properly exercised its discretion in

ruling that the letters were inadmissible
The trial court properly ruled that the evidence was not admissible under the excep
tion to the hearsay rule for a statement against penal interest.^^ Section 8-6 of the Connec-

04 _
The defendant argues that the trial court also could have admitted the evidence as
other misconduct under Conn.Code Evid. § 4-5(c). DB.97 n.82. This Court should not
address this claim because it is an unpreserved evidentiary claim. State v. Papineau, 182
(continued...)
81
ticut Code of Evidence provides in relevant part that
[t]he following are not excluded by the hearsay rule If the declarant is unavail
able as a witness ... (4) Statement against penal interest. A trustworthy state
ment against penal interest that, at the time of its making, so far tended to
subject the declarant to criminal liability that a reasonable person in the de
clarant's position would not have made the statement unless the person be
lieved it to be true. In detennining the trustworthiness of a statement against
penal interest, the court shall consider (A) the time the statement was made
and the person to whom the statement was made, (B) the existence of cor
roborating evidence in the case, and (C) the extent to which the statement
was against the declarant's penal Interest....

No single factor is determinative and not all factors need to weigh in favor of admission.
State V. Schiappa, 248 Conn. 132, 154 (1999).
The state does not contest that Hayes was unavailable: the state assumes, as did
the trial court, that Hayes, whose convictions and death sentences were on appeal at that
time, would have invoked the Fifth Amendment had the defendant called him to testify. The
state also does not contest that the letters are against Hayes' penal interest. Indeed, the
letters constitute dual inculpatory statements that inculpate both Hayes and the defendant.
See State v. Rivera, 268 Conn. 351, 361 (2004). Dual statements are evaluated using the
same criteria as statements against penal interest. State v. Schiappa, 248 Conn, at 153.
The trial court properly exercised its discretion in applying the relevant factors relat
ing to trustworthiness. First, the trial court found that the letters were written in 2011, seve
ral years after the 2007 event. T.10/12/11 at 24. In general, declarations made soon after
the crime suggest more reliability than those made after a lapse of time which provides an
opportunity for reflection and contrivance. State v. Camacho, 282 Conn 328, 361 (2007)
compare State v. Snelgrove, 288 Conn. 742, 770 (2008) (two to three years after murder

(...continued)
Conn. App. 756, 769 (review limited to theory of admissibility ruled upon by trial court), cert,
denied. 330 Conn. 916 (2018). Defense counsel's stating that the letters "show his M.O.":
see DB.97 n.82; did not alert the trial court to a claim that prior misconduct was a basis for
admission, in that "M.O." is not an explicit basis for admission listed in the rule, and the
defendant did not offer that as a basis for admission.
too remote): Martin v. Flanagan, 107 Conn. App. 544, 550 (2008) (twenty-two months after
murder untrustworthy) with State i/. Smitt), 289 Conn. 598. 631 (2008) (statement made
three months after event admissible); State v. Camacho, 282 Conn at 361 (one week,
weighed for trustworthiness); State v. Piene, Til Conn. 42, 71 (couple of weeks trust
worthy), cert, denied, 547 U.S. 1197 (2006).

Second, as to the person to whom the statement was made, the trial court observed

that nothing was known except that the person lived in North Carolina. T.I0/12/11 at 24.
Statements made to one with whom the declarant has a trusting relationship are more reli
able, especially where there is no apparent motive to lie about the defendant's conduct.
Camacho, 282 Conn, at 361-62; Sctiiappa, 248 Conn, at 155-56. In the first letter, Hayes
indicated that he had received one letter from this person, and that he was writing back to
reveal a "dark secret" to show they were kindred spirits.D.App. at A112-13. It does not

appear that they had a prior acquaintance. Here, far from showing a reason to tell the truth,
the "relationship" revealed by the letters instead show a motive for self-promotion - using
the recipient as a conduit for publicizing unthinkable evil actions. See Smith, 289 Conn, at

The letter reads: "I received your August letter and I have to say I was su[r]prjsed
on several diff[e]rent accounts. First was the contents and questions found in your letter.
I've searched my whole life for someone who could embrace and had the capa[c]ity for evil
1 possess. I though[t] I finally found it in Josh. But events show Josh while had the proper
evil intent lacked in the most serious aspects, commitment and control. You on the other
seem different. Oh what might have been. The second thing 1learned is DOC cannot possi
bly be still reading my mail otherwise I never would have received your letter. So after read
ing your letter several times 1decided two things. First to destroy your letter. It wouldn't do
to have that fall into the wrong hands. Second and more importan[t]ally I've decided to
share with you a dark secret about me. One that absolutely no one knows. Not my law-
ye[r]s, my doctors or anyone else living in this world. All I ask that you hold on to what I
share until after I'm executed in a couple of years. What I'm giving you is yours to do as
you wish and I have no doubt could be worth millions to the right people. I believe that you
will do the right thing because we are alike and if we were able to team up, the world would
have been a completely different place. Also someone else really should know the truth
about me and the truth about what happened on July 22, 2007. So yes the [P] home inva
sion a dry run in the partnership between Josh and myself. ... For now I'll move to your
second request. Yes I've killed before." D.App. at A112-13.
631 (trustworthy where spoke to cell mate in private manner): State \/. Bonds, 172 Conn.
App. 108, 125 (somewhat trustworthy where, though the record did not show nature of rela
tionship. It was outside atmosphere of police interrogation), cert, denied, 326 Conn. 907
(2017); Martin v. Flanagan, 107 Conn App. at 550-51 (that statements made to fellow in
mate with whom declarant did not have close relationship weighs against trustworthiness).
The trial court also observed that there was "no real corroboration" of the seventeen

prior homicides. T.10/12/11 at 25-26. The defendant contests that finding, arguing that the
letters' discussion of Hayes' seeking trophies - his victims' sneakers - was corroborated by
women's sneakers found in Hayes' home. DB.96 n.82. He also claims that
Hayes' statements about the home invasion and murders were corroborated by:
(1) the defendant's statement to the police, and (2) the evidence introduced at
both their trials, including but not limited to: the defendant took measures to
assist W.P. after assaulting him; Hayes purchased the BB gun and the gasoline;
Hayes took [JHP] to the bank; Hayes poured the gasoline and lit the match;
Hayes raped and strangled [JHP]; Hayes refused to inform the police when
arrested that the two girls were in the upstairs bedrooms; and the defendant im
mediately informed the police that the two girls were in the upstairs bedrooms.

DB.96-97; see DB.94 (letters favorable and material because "strongly corroborate" de
fendant's statement; letters show Hayes is leader and defendant "bumbling protege"; "no
thing" suggests had joint plan to murder; letters show arson part of "only Hayes' agenda").
There are several problems with this argument. First, the evidence that the defend
ant cites as corroborating Hayes' letters either does not do so or contradicts them: the let
ters do not indicate any measures by the defendant to assist WP;^^ the letters state that the
defendant poured gasoline on the girls and lit the match; the letters explicitly state that
Hayes and the defendant had planned before they entered the house to murder the resi
dents and burn down the house; and the letters do not discuss statements made by either

"[W]e decided to bring [WP] to the basement. Let him die down there. While down
there, Ifound a refridgator full of beer. Now at least I had something to do." D.App. at A160,
the defendant or Hayes at the time of their arrests respecting the location ofthe two girls.^^
As the trial court pointed out; T. 10/12/11 at 25-26; the defendant attempts to establish cor-
roboration by cherry-picking claimed facts (Hayes claimed multiple acts of rape, murder
and trophy-taking), while ignoring other claimed facts that wholly contradicted the defenses
raised at trial (they jointly planned to kill and burn the house before they entered, the de
fendant anally raped MP, the defendant poured gas on the girls and lit the match).

Second, the defendant asserted that it was the evidence of the pattern of kidnap,
rape, strangulation and trophy-taking by Hayes that was exculpatory to him, in that it dem

onstrated, by establishing a modus operandi, that Hayes was in charge of what occurred

and that he had a plan that he did not disclose to the defendant. T.10/12/11 at 17-18. Be

cause the description of a modus operandi. that is, seventeen rape-strangulations, is the

statement against penal interest that he wished to use, that is what must be corroborated.

[This Court] previously ha[s] emphasized that "[t]he corroboration requirement

for the admission of a third party statement against penal interest is significant
and goes beyond minimal con-oboration" (Emphasis added.) State v. Ros-
ado, 218 Conn. 239, 249, 588 A.2d 1066 (1991). ... Therefore, the statement
must be accompanied by corroborating circumstances that clearly indicate the
statement's trustworthiness.

State V. Lopez, 254 Conn. 309, 319 (2000). Admissibility does not depend, as the defend
ant claims, on the proffered evidence's corroborating a generalized defense theory, here,
the defendant's claim that Hayes was in charge. Indeed, the rule requires the "existence of
corroborating evidence in the case," and, although there is evidence in the case that

Hayes had women's sneakers, including one of HP's, there is no evidence in the case cor
roborating seventeen murders. One of HP's shoes was found in Hayes' car following the
murders, but no other facts corroborate the claimed M.O. of Hayes. The taking of a trophy
as described by Hayes in the letters involved his multiple sexual assaults of HP and no evi

dence in the case corroborates that HP was sexually assaulted. The only rape/strangula-

"He back down the driveway into a cop car, floored it down the road right into two
cop cars. Game over. Like I said I should have killed Josh in the house." D.App. at A169.
tion evidenced in the case vi/as that of JHP, from w/hom no trophy was taken. Neither the
presence of women's sneakers in Hayes' home nor the taking of HP's sneaker corrobo
rates a modus operandi of murdering women by kidnaping, raping and strangling them
even if Hayes claimed to take sneaker trophies.
The defendant also contests the trial court's assertion that the letters would be the

"seal of [the defendant]'s doom"; T.10/12/11 at 25-26; arguing that he should have been
able to redact those portions of the Hayes letters that inculpated him or, because they were
self-serving, the jury might have rejected them. DB.98. Because he did not offer redaction
as an option to the trial court, the trial court cannot have exercised any discretion on that
point, and this claim is therefore unreviewable. State y. Papineau, 182 Conn. App. 756, 769
(review limited to theory of admissibility raised before and ruled upon by trial court), cert,
denied, 330 Conn. 916 (2018). In any event, "where the disserving parts of a statement are
intertwined with self-serving parts, it is more prudential to admit the entire statement and let
the trier of fact assess its evidentiary quality in the complete context." State v. Bryant, 202
Conn. 676, 696-97 (1987). Williamson v. U.S., 512 U.S. 594 (1994), relied on by the de
fendant, DB. at 98 n.83, is distinguishable. There, the Supreme Court ruled that the federal
rule on statements against penal interest did not permit admission against the defendant of
collateral statements that were not in any way self-inculpatory, 512 U.S. at 600. Here, the
statements of Hayes that inculpate the defendant also inculpate Hayes and thus would
have been admissible. Schiappa, 248 Conn, at 148.

Moreover, redaction would have been extremely difficult. For example, Hayes states ^
in the letters that he had intended to kill HP consistent with the pattern he describes there
in, but those statements are part of his declaration that it was the defendant who had killed
the girts, depriving him of his kill. See D.App. at A189-90. The state also would have been
entitled to have sections included that rebutted the defendant's claims that the letters

showed that Hayes alone determined the plan, such as: the two had planned from the be
ginning to kill all the occupants and burn down the house; the defendant suggested that the
two men sexually assault the girls while waiting for the bank to open; the defendant invited
Hayes to watch him anally assault MP; the two discussed and agreed which parent would
go to the bank and how much money to withdraw. Practice Book § 1-5(b); see State v. Nor
man P., 329 Conn. 440, 458-62 (2018) (remainder of statement admissible under § 1-5(b) if
necessary to put initial portion in context and to prevent it from being misleading).
b. When denying the motion for continuance, the trial
court properly took Into consideration that the
duration of the delay was entirely speculative
When considering a motion for a continuance, this Court has

recognized that the factors to be considered by a trial court in ruling on a mo

tion for a continuance include the likely length of the delay ... the impact of de
lay on the litigants, witnesses, opposing counsel and the court ... the per
ceived legitimacy of the reasons proffered in support of the request ... [and]
the likelihood that the denial would substantially impair the defendant's ability
to defend himself.... There are no mechanical tests for deciding when a de
nial of a continuance is so arbitrary as to violate due process. The answer
must be found in the circumstances present in every case, particularly in the
reasons presented to the trial judge at the time the request is denied.

(Citation omitted; internal quotation marks omitted.) State v. Campbell, 328 Conn, at 474;
see also State v. Rivera, 268 Conn, at 379 (factors also include age and complexity of
case, whether other continuances have been granted). It was the trial court's obligation to
weigh the risk of indeterminate delay and loss of the jury against the likelihood that the
defendant would actually use the letters.
The trial court properly invoked Conn.Code Evid. § 4-3 which provides
relevant evidence may be excluded if its probative value is outweighed by the
danger of unfair prejudice or surprise, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time or needless
presentation of cumulative evidence.

T.10/12/11 at 26. Here, the trial court, when considering the request for an indeterminate
delay, properly took into account the low evidentiary value to the defendant of the Hayes
letters and the low likelihood that the defendant would actually offer them due to their highly
inculpatory attributes. Campbell, 328 Conn, at 474 (may consider perceived legitimacy of
reasons). Again, the defendant asserted that the evidence was relevant to refute the state's
87
assertion that the defendant was in charge of what occurred in the P home, as pertinent to
the defendant's claim that he had no intent to kill. The inference from the letters that Hayes
alone was in charge Is weak, given the passages that Hayes and the defendant had agreed
before entering to kill the occupants and burn down the house, that the two planned for the
defendant to kill WP, that It was the defendant who suggested that they sexually assault the
girls while they waited for the bank to open, that the defendant invited Hayes to watch him
anally rape MP and that the defendant had acted contrary to the plan when he set the girls
on fire like a "coward". Moreover, as the trial court correctly pointed out; T.10/12/11 at 28;
although both the state and defense counsel argued to the jury who was in charge, being in
charge was not an element of any offense and Hayes' being in charge does not negate the
defendant's intent. Indeed, the state had consistently asserted, in both the Hayes trial and
this trial, that Hayes was the principal and the defendant the accessory in the rape and
murder of JHP, the murder to which the defendant claims that Hayes' modus operandi
shown in the letters pertains. The defendant could and did point to the presence of sneak
ers in Hayes' home to ask the jury to infer that the presence of HP's sneaker in Hayes' car
showed Hayes had a personal predilection for this kind of sexual crime that impelled him
into the P home. See T. 10/11/11 at 61, 71. This Court, in State v. Breton, 264 Conn, at 360,

noted that untimely disclosure of information can justify a continuance to permit investiga
tion, but ruled where the proffered use was of marginal probative value and not, as the de
fendant had claimed, "critical and crucial," it was within the trial court's discretion to deny a
continuance. Breton, 264 Conn, at 360 ("full significance ... still speculative today"). So
here, although the defendant did not receive the letters until after evidence had closed,
given the small chance the defendant would actually offer the letters in evidence, it was
well within the trial court's discretion to deny an open-ended continuance.
I

As to time needed, after the initial request for one day, defense counsel never articu
lated how much time they were requesting, and, although they stated they wanted to in
vestigate who the intended recipient of the letter was, read her letter to which Hayes was
responding (Hayes stated he had destroyed her letter), and investigate how long the DOC
had had the letters, they did not state specifically what they had done during the five days
that had already elapsed. Defense counsel made the unspecific oral motion on Wednesday
October 12, having gotten the letters on Friday October 7. During that time, defense coun
sel had not spoken to Hayes' "direct" counsel about whether Hayes would testify, nor sug
gested any other investigation that had been done. The defense team comprised three

attorneys from different law firms and presumably had investigators available. In light of
"the age and complexity of the case," in that evidence had begun on September 19 and the

defendant had rested on October 6. the trial court was entitled to put significant weight on
the "the impact of [unspecified] delay on the litigants ... opposing counsel and the court."
Campbell, 328 Conn, at 474. On appeal, the defendant claims that he should have been
granted the continuance to find more evidence to establish the admissibillty of the letters.
DB.99. But, now, he offers no suggestions about what that could have been, and has taken
no steps, such a moving for a new trial or a motion for a hearing pursuant to State v. Floyd,

253 Conn. 700 (2000); see Issues IV and V; to take this issue outside the realm of specula
tion. State V. Rivera, 268 Conn, at 379-80 (no abuse of discretion denying continuance
where continuances had already been granted and length of delay speculative).
0. Any error was manifestly harmless
If the trial court abused its discretion, the defendant could not have been prejudiced.
For the reasons set forth above, because the content of the letters was extremely prejudi
cial to the defendant, there is no probability that the letters would have changed the verdict
0. The Defendant Has Failed To Prove A Srat/yViolation
The defendant claims that the disclosure of the Hayes letters after the evidence had
closed constituted a Brady violation. Although the defendant stated that the letters were ex
culpatory and said he could move for a mistrial based on the time of the disclosure, the de

fendant never articulated or sought a ruling on the elements of a claim under Brady either
at trial or during subsequent Floyd hearings. As a result, there is no record permitting
review of the existence of the elements of suppression, i.e. whether the DOC was acting as
89
 the prosecution's agent, and whether the information was material. Nonetheless, the
defendant cannot meet his burden to prove that the information was material.
1. Standard of review and pertinent law
The suppression by the prosecution of evidence favorable to an accused violates
due process where the evidence is material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. at 87.
To prevail on a Brady claim, the defendant bears a heavy burden to establish:
(1) that the prosecution suppressed evidence; (2) that the evidence was fav
orable to the defense; and (3) that it was material. ... The test of materiality of
nondisciosed exculpatory evidence requires that there be a reasonable pro
bability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A reasonable probability is a proba
bility sufficient to undermine confidence in the outcome.... [W]here there is no
reasonable probability that disclosure of the exculpatory evidence would have
affected the outcome, there is no constitutional violation under Brady.
(Internal citations omitted). State y. Santiago, 245 Conn. 301, 311 (1998). "[T]he adjective
Iis important. The question is not whether the defendant would more likely than not have re
ceived a different verdict with the evidence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of confidence." (Internal quotation
marks omitted.) Stricklerv. Greene. 527 U.S. 263, 289-90 (1999); State v. Ross, 269 Conn.
213, 304 (2004) (applying standard to evidence disclosed during trial). "As [the Supreme
Court] made clear in Ky/es, the materiality inquiry is not just a matter of determining wheth
er, after discounting the inculpatory evidence in light of the undisclosed evidence, the re
maining evidence is sufficient to support the jury's conclusions. [Kyles v. Whitley, 514 U.S.
419, 434-35 (1995)]... Rather, the question is whether "the favorable evidence could reaso
nably be taken to put the whole case in such a different light as to undermine confidence
in the verdict." [514 U.S.] at 435 ...." (Emphasis added). Strickler, 527 U.S. at 290.
"Evidence known to the defendant or his counsel, or that is disclosed, even if during
trial, is not considered suppressed as that term is used in Brady.... He can complain only of
the timing of the disclosure." (Internal citations and quotation marks omitted). State v.
Walker, 214 Conn. 122, 126 (1990). "Under such circumstances the defendant bears the
90
burden of proving that he was prejudiced by the failure of the state to make [the] informa
tion available to him at an earlier time." Walker, 214 Conn, at 126-27.
The standard of review of a Brady claim depends on the specific prong of Brady be
ing challenged. Whether evidence was suppressed or disclosed often involves a question
of fact, subject to reversal only upon a clearly erroneous finding; State v. Ross, 251 Conn.
579, 592 (1999); whereas whether suppressed evidence was material is a mixed question
of law and fact subject to plenary review. State v. Ortiz, 280 Conn. 686, 720 (2006).
The determination of materiality has been said to be "inevitably fact bound"
and like other factual issues is committed to the trial court in the first instance.
... There is a difficulty inherent in measuring the effect of nondisclosure in the
course of a lengthy trial with many witnesses and exhibits such as this; this
lack of certitude suggests deference by a reviewing court especially in the
weighing of evidence.

(Internal citations omitted.) State v. Ortiz, 252 Conn. 533, 545-46 (2000).
2. The defendant cannot establish the three elements of Brady

To prevail on a Brady claim, the defendant must establish all three prongs. The state
does not contest that the evidence was favorable. Evidence "having both an inculpatory
and exculpatory effect" must be turned over to the defense counsel as Brady material. DiSi-
I

mone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006). However, because the evidence was
disclosed before the end of trial, there was no Brady suppression. Alternatively, there is no
reasonable probability that the result of the trial would have been different had the Hayes
letters been produced. If there is a reasonable probability and if the letters were not pro
duced during trial, the record is inadequate to determine ifthe state suppressed the letters.
a. The defendant was not prejudiced by late disclosure
All of the material at issue was disclosed during the trial - although evidence had
closed, closing arguments, jury instruction and jury deliberations had not occurred. "No
denial of due process occurs if Brady material is disclosed ... in time for its effective use at
trial." State v. Pollitt, 199 Conn. 399, 414 (1986). "Where there has been an initial disclos
ure of exculpatory evidence at trial, the appropriate standard to be applied is whether the
disclosure came so late as to prevent the defendant from receiving a fair trial." (Internal
citations omitted.) State v. Walker, 214 Conn, at 127-28. "[Tlhe defendant bears the burden
of proving that he was prejudiced by the failure of the state to make [the] information avail
able to him at an earlier time." Walker, 214 Conn, at 126-27.

Here, the letters were disclosed before the case was submitted to the jury. The de
fendant used the procedures provided by our law when one becomes aware of information
after evidence has closed: he moved to reopen the evidence and for a continuance and, for
the reasons set forth above, failed to meet his burden for the granting of either motion.
"Whether the tardy disclosure of Brady material fairly requires a continuance or a delay in
order to make effective use of such matter is essentially a factual question in each case."
Pollitt, 199 Conn, at 414. The defendant argues that the untimely disclosure impaired his
opportunity to use the evidence because, if it were inadmissible, he did not have the oppor

tunity to obtain information to establish its admissibility. DB.99. Again, for the reasons set
forth above, he has not demonstrated either that there was a way to establish admissibility,
or that he would have used these highly inculpatory letters ifthey were admissible.
b. The evidence was not material

The defendant cannot establish that the Hayes letters were material because there

is no reasonable probability that use of the letters would have produced a different result at
trial. The defendant asserts that the letters are material

[b]ecause they strongly corroborated the defendant's theory of defense, [and]

there is a reasonable probability that, if permitted to consider them, the jury
would have found that the prosecution failed to prove beyond a reasonable
doubt that the defendant intended to kill or commit arson,[ ] and would have
acquitted him on the murder, capital felony and arson-in-the-first degree counts.

(Footnotes omitted). DB.95. The defendant relies on the state's closing argument to dem
onstrate the prejudice to him from his inability to use the Hayes letters. DB.89 n.69.

See footnote 1, page 2, above.

 Contrary to the defendant's claim, the letters contradict rather than "strongly corro
borate" the defendant's statement and theory of defense that he did not intend to kill any
one and "was stunned when Hayes suggested and then insisted on doing so." (Emphasis
in original). DB.94, 95. In the letters, Hayes said that the two planned before they even en
tered the home to kill the occupants and burn down the house, contradicting the defend
ant's claim in his statement that he never intended to kill anyone and verbally opposed
Hayes' statement that he wanted to burn down the house with the occupants inside. (Com
pare: "Nothing in the letters suggest that Hayes and the defendant had a joint plan to com
mit the Cheshire murders. ... [T]he letters demonstrate that arson was part of only Hayes'
agenda;" DB.94; with "before we went in the plan was to kill everyone and burn the house
to the ground. ... [W]e already decided everyone was going to die and the house would be
burnt. I told him I checked the garage and there was no gas there so we decided one of us
would go around 6:00 to get gas." D.App. at A158-61 (emphasis added)). Contrary to the
defendant's claim; DB.94 n.75: the letters do not state that Hayes had a plan to kill the de
fendant; instead, he states" "I do now realize had we gotten away I would have killed
Josh;" D.App. at A113; thus indicating that he would have done so, not because it had been
his plan to kill the defendant from the beginning, but because it was, in retrospect, his belief
that he would have done so because the defendant had botched the plan.
Had the letters been admitted at trial, there is no possibility that the result would
have been different.

0. The record is inadequate to determine if the state

suppressed the letters
If the Court finds that the undisclosed letters were material and that the disclosure

was not during trial, the defendant's Brady claim fails because the record is inadequate to
determine if the state suppressed them. To establish suppression, the defendant must
demonstrate that the "state" had the letters before October 6, and, to do that, he had to
show that the DOC was acting as the agent of the prosecution. In Kyles v. Whitley, 514
U.S. at 438, the Supreme Court held that the Brady rule encompasses "evidence known
only to police investigators and not to the prosecutor." Thus, "the individual prosecutor has
a duty to learn of any favorable evidence known to the others acting on the government's
behaifin the case, including the police." (Emphasis added). Kyles, 514 U.S. at 437; Strick-
lerv. Greene, 527 U.S. at 281. "The prosecution's duty to disclose applies to all material
and exculpatory evidence that is within its possession or available to it... and that the pro
secution knew or should have known was exculpatory." (Emphasis in original; citations

omitted.) Demers v. State, 209 Conn. 143, 150-51 (1988).

The record is inadequate to determine whether the DOC was acting as the agent of
the prosecution in this case and, if so, when the DOC came into possession of the letters.^®
At trial, the defendant asserted that the DOC was part of the state; T.I0/12/11 at 12; but

offered no evidence to establish agency and the trial court made no finding in that regard.^^
The defendant also did not ask the trial court to take evidence or make findings with res

pect to these facts. Such findings are indispensable to determine if there was an "agency"

This Court currently has pending before it a case in which the factors to be consi
dered when examining whether the DOC has acted as an agent for the prosecution are in
issue. See State v. Guerrera, S.C. 19785, argued September 21, 2017.
In his brief, DB. at 94 n.73, but not at trial, the defendant relies on the following as
proof that the DOC was the agent of the prosecution for Brady purposes. First, on Septem
ber 19, 2011, the defendant moved for two exceptions to the sequestration order for new
acquaintances of the defendant who would testify in the penalty phase. T.9/19/11 at 56-58.
Defense counsel asserted that the state was aware of these witnesses "because all of Mr.
Komisarjevsky's personal mail leaving the institution and coming in, it's copied and turned
over to the State through Detective Medina." Id. at 59. The state, without addressing agen
cy, simply objected to the granting of the motion, which the trial court denied. Id. at 59-60.
Second, on November 8, 2011, during the penalty phase, the state cross examined the de
fendant's psychiatric witness about the defendant's journals. T.11/8/11 at 81-82. The de
fendant objected, stating that prior to the guilt phase, he had moved to suppress those jour
nals, and had withdrawn the motion on the state's representation that it did not intend to of
fer them. Id. at 82-83, see T.8/23/11 at 4-5 (defendant withdrawing motion to suppress pri
son writings). The defendant proffered the bases he had planned to argue for suppression
(Fifth Amendment, not agency), see T.11/8/11 at 84-86, 87; and the trial court overruled the
objection, noting that because the defendant had given the journals to his expert to exa
mine for forming her opinion, the journals were a proper basis for cross examination. Id. at
85, 87. Because the defendant never proffered these facts as a basis for a finding agency
and the trial court made no factual findings, this Court cannot consider these facts.
relationship between the state's attorney and DOC for Brady purposes. The simple fact that
DOC turned the letters over to the state does not transform it into the state's attorney's in
vestigative agent. See Stevenson v. Commissioner, 165 Conn. App. 355, 364-67 (rejecting
claim that state's request for DOC employee to review DOC files and testify at trial trans
formed DOC into investigative arm of prosecution), cert, denied, 322 Conn. 903 (2016);
U.S. V. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (imputing knowledge of other govern
ment agencies onto prosecutor could "condemn the prosecution of criminal cases to a state
of paralysis") (Internal quotation marks omitted.) Unlike the police department, DOC is not a
law enforcement agency. See General Statutes § 18-81 (duties of Commissioner of Correc
tion); compare Demers v. State, 209 Conn, at 153 (police department treated as arm of
prosecution for Brady, victim's arrest report "easily available" to state's attorney) with Peo
ple V. Superior Court, 80 Cal. App. 4th 1305, 1317, 96 Cal. Rptr. 2d 264 (2000) (California
Department of Corrections distinct and separate governmental entity from District Attorney).
D. Conclusion

For the foregoing reasons, the trial court properiy denied the defendant's motions to
reopen and for a continuance, and the defendant has failed to establish a Brady violation.
IV. THE DEFENDANT WAS NOT DENIED DUE PROCESS BY THE STATE'S
FAILURE TO PRODUCE CERTAIN TAPE RECORDINGS OF POLICE
COMMUNICATIONS

The defendant claims that the state violated his rights to a fair trial pursuant to Brady
V. Maryland, 373 U.S. 83 (1963), when it failed to disclose recordings of specific telephone
calls and radio transmissions within the Cheshire Police Department (CPD) that, he claims,
were key to impeaching the testimony of police officers. DB.101-03. Three categories of
communications are at issue: first, six communications evidencing the police response to
the home invasion (IV.C. below); second, two communications relevant to the states of
mind and demeanors of the defendant and Hayes at the time of their arrests (IV.D, below);
and three, a communication, a summary of which CHR, JHP's sister, claimed to have seen,
that the trial court found that the defendant had failed to prove existed (IV.F, below). The
defendant claims that the suppressed information was material because it would have
(i) strongly supported the defendant's theory that, because of the woefully ina
dequate response to the 911 call from the Bank of America, the Cheshire
police were motivated by guilt, anger and embarrassment to undermine the
credibility of the exculpatory parts of his police statements: (ii) strongly sup
ported the defense theory that Steven Hayes was the mastermind of the mur
ders and that the defendant, stunned by Hayes' statements and actions dur
ing the crime, was slow to process and react appropriately to them; and (iii)
constituted powerful exculpatory evidence of the defendant's exhaustion and
disorientation when arrested and when he waived his Miranda rights and
g[a]ve his police statements.

DB.101-02. The defendant cannot prevail. The state will address each category of commu
nication in turn. In summary, because the communications were cumulative to information
that the defendant had and used at trial, the recordings relevant to the police response to
the home invasion and the demeanors of the defendant and Hayes were not material. In
addition, the trial court did not err when it determined that the defendant had failed to prove
the existence of the communication referred to by CHR.
A. Additional Facts Pertinent To All Of The Communications

On August 29, 2014, the defendant filed a Motion for Augmentation and Rectification
pursuant to State v. Floyd that asked the trial court to determine that the state had failed to

produce recorded police communications. In its response, the state agreed that a hearing
was necessary, representing that it had been informed by CPD that backup copies of re
cordings of communications for the time period of the home Invasion had been found in off-
site storage, and they might contain copies of communications that the defendant was
seeking. See State's Response to Defendant's Motion for Augmentation and Rectification,
S.App. at A14; T.2/23/16 at 91. The following summarizes the general evidence produced
pretrlal, at trial and at the February 23, June 6, and July 26, 2016 Floyd hearings.
1. Production pre-trial
On the afternoon of July 23, 2007, Michael Winters, IT coordinator for CPD, was dir
ected by Detective Captain Robert Vignola to capture communications from the CPD re-
cording system, starting with the initial call through the arrest and bringing of the two
accused to the station. T.2/23/16 at 82-84; T.2/23/16 at 115 (Inspector Robert Sage of New
Haven State's Attorney's office requested Captain Vignola to preserve records); see also
T.7/26/16 at 8-9. Using their then-software, Winters tagged pertinent radio and phone
transmissions, which were copied into a different file and used by the software to "recreate"
the incident T.2/23/16 at 83-84, 94; see also T.7/26/16 at 9-10. Winters reviewed the two

911 lines, three phone lines, police radio and fire radio and exercised his own judgment as
to what should be tagged. T.2/23/16 at 84-85, 92-93. Once the communications were
marked and copied, Winters burned them to a CD, which he turned over to Detective Cap
tain Vignola. Id. at 85. Winters also was tasked to create a guide to, or log of, the different
channels and the times of some of the transmissions, and draft a summary of the content of
the transmissions. Id. at 85-86, 95; Dispatch Log, D.Ex.A (trial), S.Ex.2 (F/oyc/hearing); see
also T.7/26/16 at 11. He did so one or two days after the murders. T.2/23/16 at 86. After he
turned the CDs and the Dispatch Log over to his supervisor in 2007, he did not address any
July 23 recordings again until 2011 when defense counsel requested further recordings. Id.
at 87; see also T.7/26/16 at 13 (did not see Dispatch Log again for nine years). ,
In a cover letter to counsel for Hayes and the defendant, dated September 13, 2007,
captioned "Re: State v. Steven Hayes State v. Joshua Komisarjevsky," the State's Attorney
stated "enclosed please find" inter alia, at #87, CDs with audio copies of police communica
tions. S.Ex. 1 {Floyd hearing); T.2/23/16 at 24-25; S.App. at A22. Item #87 reads "CD's,
Real Time Audio, Routine Phone, 911 Phones, CPD Radio, Fire Radio." S.Ex. 1 {Floyd
hearing) at p. 3; S.App. at A24.
In 2007, the recording system that the police department used could not perform
automatic backups; accordingly, once a week, Winters copied .wav files onto a CD, which
he stored in the server room. T,2/23/16 at 87-88; see also T.7/26/16 at 10. On December
15, 2010, a lightning strike damaged the recording system at the CPD and destroyed the
hard drive that contained the original recordings of communications. T.2/23/16 at 88-91;
S.Ex.4 {Floyd hearing) (insurance claim). Thereafter, Cheshire replaced its recording
system with one that performed automatic backups. T.2/23/16 at 90.
Before trial, the defendant moved for disclosure and examination. D.App. at A279,
286. At a hearing on August 22, 2011, defense counsel stated that "the State has conduct
ed this investigation and prosecution as an open file case ..." and had given the defense
everything they had asked for. T.8/22/11 at 36-39. The trial court granted the motion in
accordance with the Practice Book. Id. at 39. The trial court also granted the defendant's
motion for exculpatory information as required by Brady. Id. at 44-45.
Subsequently, defense counsel, by letter dated August 25, 2011, made two addition
al discovery requests. See D.Ex.J {Floyd hearing): T.2/23/16 at 23. First, because a CD of
"dispatch calls from the morning of July 23, 2007," that had been provided by Inspector
Sage on August 9, 2011, contained only select calls; counsel requested all CPD calls from
"9:00am through 1:00pm." D.Ex. J (F/oyd hearing), p.2. Second,
given the questions and widespread public criticism surrounding the [CPD]'s
response, on July 23, 2007, it would seem likely that the Department and/or
the Town investigated/assessed/formally reviewed/etc. the matter, including,
but not limited to. the conduct of the individuals officers involved. To the ex
tent such a review did occur, we ask for all documentation related thereto.

D.Ex.J {Floyd hearing), p.2. By letter dated September 2, the state responded thereto. See
T.2/23/16 at 23-24; defense letter dated September 19, 2011, D.Ex. K {Floyd hearing). The
state represented that all calls in "our possession" had been turned over, and that the state

police and CPD had advised that no other calls had been preserved. D.Ex. K {Floyd hear
ing); see S.Ex. 4 {Floyd hearing) (documenting insurance claim after December 15, 2010
lightning strike. T.2/23/16 at 88-91.) In 2011, when responding to the inquiry, Michael Win
ters did not recall that in 2007 he had been making weekly copies of recordings and be
lieved that, due to the lightning strike, CPD no longer had any original communications.
T.2/23/16 at 87, 90-92. As to the second request, the state advised that it had inquired and
believed there had been no such review. See D.Ex.K {Floyd hearing), pp. 1-2.
 By letter dated September 19, 2011, defense counsel again wrote the state's attor
ney, referring to the two discovery requests in its August 25. 2011 letter. D.Ex.K {Floyd
hearing), T.2/23/16 at 23-24. Defense counsel made the following requests:
Further review of the dispatch CD, specifically when compared to the summary
report [Dispatch Log, D.Ex. A (trial); S.Ex. 2 {Floyd hearing)] the police prepared,
reveals at least one missing call: No. 173309. That call, taken, like others on the
disc, from "1 (CPD Main)" and lasting a reported 27 seconds, concerns "D1 is
doing drive-by." We ask that the state produce this documented call.

D.Ex.K {Floyd hearing) at 2. The letter also requested a copy of an action review that would
have been required by General Order #98-6. D.Ex.K {Floyd hearing) at 2. The record does
not include the state's response.
2. Stipulations and trial court ruling after hearing
After reviewing the newly located backup CDs, the parties filed Parties' Stipulations,
dated February 3, 2016, agreeing that specified communications had not been produced
for trial. See S.App. at A25.^® These will be discussed in Sections IV.C and D. below. In
general, the parties agreed that specified calls had not been disclosed to the defendant's

trial counsel at trial in 2011; and that the state provided the recordings to the defendant's'
I

appellate counsel for the first time in November 2014.^® See S.App. at A25.
The parties disputed whether three other calls had been produced; the state con
tended that the calls had been part of the production under cover of the September 13,
2007 discovery letter, item #87, and the defendant stated that not all of the CDs listed there

In addition to the communications discussed in Issue IV.C below, the state and the
defendant stipulated that the following call was not produced: "H. A recording designated
CH10_09001C57 (Time: 9:23:12); the relevant speakers are Cheshire Police Officer Robert
Regan and Cheshire Police Lieutenant, Joe Mazzini. The time of the call was 9:23:12 am
on July 23, 2007." Stipulation dated February 3, 2016; S.App. at A25. The defendant does
not refer to this call in his brief; accordingly, any claim with respect thereto has been aban
doned. See State v. Clark, 255 Conn. 268, 281 n.30 (2001).
The stipulation included two calls that the defendant agreed had been turned over
prior to trial, and the defendant withdrew his claims with respect to the calls listed at F and
G of the stipulation. T.2/23/16 at 10-11; see Stipulation, S.App. at A25.
had been provided. The parties also disputed the existence of the call listed as paragraph
one at page 8 of the Motion for Augmentation. D.App. at A338. See Issue IV.F.
After the February 23. 2016 evidentiary hearing, the trial court found:

A. After a careful consideration of all of the evidence, the trial court does not
find that the existence of the police call described in paragraph 1 on page 8
[CHR call] of the August 19, 2014 Motion For Augmentation And Rectification
Of The Record has been proven by a fair preponderance of the evidence.
B. After a careful consideration of all of the evidence, the trial court finds that
the three police calls described in paragraph 4 on page 9 of the August 19,
2014 Motion for Augmentation and Rectification Of The Record, the existence
of which Is uncontested, were not disclosed to the defense.[^°]...

The evidence on which the trial court based this finding includes the following:
When Moira Buckley became the appellate attorney for the defendant in January of 2013,
she collected the trial files from the three trial attorneys. T.2/23/16 at 16. She determined
that a number of communications referred to in a news article were not on a CD labeled
"police dispatch calls" found in the trial file of Jeremiah Donovan. Id. at 13, 17-18, D.Ex. G
{Floyd hearing). She reviewed the state's September 13, 2007 discovery memorandum,
Item #87 ("CD's, Real Time Audio, Routine Phone, 911 Phones, CPD Radio, Fire Radio");
S.Ex. I {Floyd hearing); and located in those files a CD with two 911 calls, a CD labeled
"dispatch," and one labeled "fire radio," but did not locate in any of the trial files CDs labeled
real time audio, routine phone, or CPD radio. Id. at 25-26, 32-33,118-19; see CD Cheshire
police routine phone calls, S.Ex. 3 {Floyd hearing); CD Cheshire police radio transmissions,
S.Ex. 5 {Floyd hearing); CD Cheshire fire department radio transmissions, S.Ex. 6 {Floyd
hearing); CD Cheshire police real time audio, S.Ex. 7 {Floyd hearing); CD Cheshire police
all 911 calls, S.Ex. 8 {Floyd hearing). In late May - early June 2014, she contacted Thomas
Ullman, trial counsel for Hayes, and he had five CDs of police communications. Id. at 27-
28, 34, 41, 62-65. Donovan recalled getting a "couple" of CDs with the September 13, 2007
discovery letter, but, despite recalling that he listened to the recordings immediately, never
contacted the state's attorneys to let them know he did not have CDs consistent with what
was listed in #87. Id. at 63, 76-78. Bussert, the defense counsel responsible for dealing
with police response and related communications, testified on cross at the Floyd hearing
that he never discussed with Donovan or Bansley whether they had the five CDs listed as
item #87 in the state's discovery letter, S.Ex. I {Floyd hearing). Id. at 53, 59-60, 70. Robert
Sage, the state's attorney's inspector, could not recall what he had done specifically with
the attachments to the 2007 discovery letter, but testified that his normal practice was to
facilitate getting the information from the police to the state's attorney's office. Id. at 116-17,
120-21. One of the prosecutors would have delivered the items attached to the discovery
letter, S.Ex. 1 {Floyd hearing), to defense counsel. Id. at 121-22 He remembers that five
CDs were involved and that many copies were made. Id. at 117-18. In 2007, it was the
practice of the New Haven state's attorney's office to make copies of everything that had
(continued...)
100
Consolidated Decision. D.App. at A387.
B. Standard Of Review

The state incorporates the standard of review of a Brady clainn set forth In III.C.1. As
to the undisclosed communications concerning police response and the demeanors of the
defendant and Hayes, the state does not contest either non-disclosure or favorability.
Accordingly, the only issue is materiality.^^ The defendant claims that the undisclosed com
munications are material impeachment evidence. DB.101-02.
The purpose of requiring the state to disclose impeachment evidence to a cri
minal defendant is to ensure that the jury knows the facts that might motivate a
witness in giving testimony.... In determining whether impeachment evidence is
material, the question is not whether the verdict might have been different
without any of [the witness'] testimony, but whether the verdict might have been

(...continued)
been disclosed to defense counsel and the five CDs were maintained as evidence of what
had been produced. Id. at 122. The trial court found that
[T]he only factual question is whether these three phone calls were turned
over. The - the evidence fairly establishes that a very thorough search was done
of the files in the defense counsel's possession. These are - recordings are not
found. Attorney Donovan credibly testified that he looked ... everywhere. ... It's
just not there, and in fact, that contrast with the Hayes file where it was there.
I don't doubt the honor and integrity of the State here. I find no evidence at
all of any deliberate concealment by the State .... It was some kind of error in
transmission. We have no witness who saw these things handed over, and I un
derstand there is circumstantial evidence ... but in this case, the trout is just not in
the milk. The ... recordings just are not in the files, and these are very capable at
torneys, I have no reason to believe that they were sloppy in any way, and to me,
again, going by the more likely of the two hypotheses, either they were turned
over or they were not, I have to find that these three calls were not turned over.
Now having said that, I certainly understand that there are also facts in the
record established largely by various documents entered in, that the defense
attorneys may have had plenty of clues that these recordings existed, but having
said that... my narrow, narrow task in this proceeding is to find whether or not the
recordings were actually turned over, and I find that they were not.
T.2/23/16at 143-44.

In its November 23. 2015 response to the defendant's November 13, 2015 motion
for augmentation and rectification of the record, the state argued that the trial court should
determine all three prongs of Brady. Response at p. 6-7, S.App. at A46. The trial court
declined to do so, interpreting the remand to require only that it make factual findings
respecting production.
 different if [the witness'] testimony [was] further impeached by disclosure of the
[impeaching fact.] .... The fact that the witness' testimony is corroborated by
additional evidence supporting a guilty verdict also may be considered in
determining whether the suppressed impeachment evidence was material.

(Internal citations, quotation marks omitted). Floyd, 253 Conn, at 744-45 (because jury ap
prised of witness motivation to testify falsely, impeachment value of suppressed evidence
merely incremental: also witness corroborated by two eyewitnesses). Withheld evidence is
more likely material when the state presents a weaker case for guilt. E.g., Smith v. Cain,
565 U.S. 73. 76 (2012) (eyewitness "testimony was the only evidence linking [defendant] to
the crime", and, therefore, the undisclosed statements contradicting testimony were "plainly
material"): U.S. v. Agurs, 427 U.S. 97, 113 (1976) ("[l]f the verdict is already of questionable
validity, additional evidence of relatively minor importance might be sufficient to create a
reasonable doubt"). Conversely, if the evidence of guilt is ovenwhelming, the witnesses to
whom the suppressed impeachment pertains are relatively unimportant, or the witnesses
have already been impeached, then it will be less likely that suppression undennines confi
dence in the verdicts. See U.S. v. Cannady, 719 F. App'x 237, 241 (4th Cir. 2018) (sup
pressed information cumulative impeachment evidence and, even standing alone, of incon
clusive impeachment value: nondisclosure does not "put the whole case in such a different
light as to undermine confidence in the verdict," Ky/es, 514 U.S. at 435).
The question of materiality is assessed in two parts. First, a court must "evaluate the
tendency and force of the undisclosed evidence item by item" to determine whether it
should be considered as part of the materiality analysis. Ky/es, 514 U.S. at 436 n.10. Se
cond, it must consider the cumulative effect of all the suppressed evidence to determine
whether it is material in the aggregate. Id. The materiality inquiry is not a sufficiency of the
evidence test and the fact that enough evidence remains to convict after excluding the
tainted evidence is not a reason to deny relief. Ky/es, 514 U.S. at 434-35.
 C. The Defendant Was Not Deprived Of A Fair Trial By The State's
Failure To Produce Six Police Calls Relevant To Police Response
The defendant claims that the failure of the state to produce recordings of six com

munications relevant to the police response to the emergency deprived him of a fair trial be
cause it affected the defendant's ability to impeach Cheshire police officers. DB.101-02.
Specifically, these calls, all from July 23, are as follows:^^
1. Intercept Call (D.Ex. C-4A); 9:25:15 a.m.; 173251 (CH10__09001C58): Stipula
tion 4.A ("Call from Cheshire Police Sergeant Chris Cote to Officer Robert R-
egan, acting as dispatcher, in response to request of Officer Donald Miller for a
call"); D.Ex. C-4A {Floyd hearing); on Dispatch Log; DB.108, Call # 1; relevant
content:

A MALE VOICE: Hey, what's up.

A MALE VOICE; We're taking 911's from the bank. Apparently some
family is tied up and being held hostage and they're forcing the woman to
go to the bank and withdraw a large amount of cash to pay the captors.
Mazzini is here now. Don is getting basic information on it, but it sounds
like we might be in this for a little bit. ...
A MALE VOICE: All right. Where is it?
A MALE VOICE: The lady is at Bank of America, Don? The lady just
left, possibly with the captors, ... in a Chrysler Pacifica heading out Ves
pucci's side of Maplecroft.
A MALE VOICE: Do you want to put that on the air? Joe, what do you
want to do? Do you want to try to find that car or what do you want to do?
We're going to put that out on (indiscernible). Just with Bank of America,
the captors might be in the car with her, Chrysler Pacifica. ... The bank
manager is the one that called us. The lady doesn't even - didn't want to
notify the police because they have her family tied up
A MALE VOICE: (Indiscernible) Chrysler Pacifica, color gray, coming
out of Maplecroft Plaza [indiscernible] West Main Street towards Sorghum
Mill Road.

The calls will be described in the following form; short-form reference; time, if
known; call and channel identification numbers; its description in the February 2, 2016
stipulation, where pertinent; whether listed in the Dispatch Log, D.Ex.A (trial), S.Ex.2 {Floyd
hearing); exhibit number at the Floyd hearing; page number of the defendant's brief where
he sets it out; and its relevant content. Items 1, 2 and 3 were part of the February 3, 2016
stipulation; Items 4 and 5 were on CD labeled "routine calls" and Item 6 was on CD labeled
"911 call" of #87 of September 13, 2007 discovery letter.
 A MALE VOICE: All right. What color is the Pacifica ["]
A MALE VOICE: ... But - why don't you just head down towards that
area and see if we can intercept this car.
A MALE VOICE: I'm on Maple now. ... [indiscernible] turned onto West
Main Street, the Pacifica. [indiscernible] gray Pacifica

2. Heading-out Call (D.Ex. C-4.E); 9:27:52 a.m.; CH11_0A00327B: Stipulation

4.E ("A recording designated CH11_0A00327B; the relevant speaker is Cheshire
Police Captain Robert Vignola; Internal call from Captain Ren Marchand, shift
comnnander. The time of the call was 9:27:52 a.m. on July 23, 2007."); not listed
on Dispatch Log; D.Ex. C-4E (Floyd hearing); DB.109, #3; relevant content:

300 Sorghum Mills? ... Is the lady still at the bank? ... Chrysler Pacifica?
... All right. We are heading out.

3. Driveby Call (D.Ex. C-4B): 9:36:18 a.m. to 9:36:45 a.m.; 173309

{CH1_0000A724); Stipulation 4.B ("Cheshire Police Captain Robert Vignola
states he will do a driveby of 300 Sorghum Mill Drive and the house is described
by Officer Philip Giampietro"); listed on Dispatch Log; D.Ex. C-4B {Floyd hear
ing); DB.109, #4; relevant content:

[Undecipherable] Going to a driveby [undecipherable]

Okay, as soon as you get past Hotchkiss Ridge, just look on your left
you'll see the house. Again, the front faces Hotchkiss Ridge, the driveway
comes out onto Sorghum. The vehicle is in the driveway.

4. Hostage-negotiator Call (D.Ex. F); 173378 (CH9_080042D2_699.wav); not in

Dispatch Log; D.Ex. F (F/oyd hearing); DB.109 #5; relevant content:

Caller asks: "I need to know whether you want me in or not I'm the
hostage negotiator and 1got paged;" Answer: "Not at this time."

At this point, the dispatcher says: "Hey, we've got nothing in-house, either at the
address or for that name. I don't know if this is a wingnut or this is something actually hap
pening We've not had anything on this family before. But - why don't you just head
down towards that area and see if we can intercept this car. ... I'm going to just try and dig
up some info on her. Okay?" The defendant relies on the Don't-Know call (D.Ex.D) above,
for "Cheshire officer questioned whether JHP telling the truth." For the Intercept Call
(D.EX.C-4B), however, he relies only on those statements directing the listener to try to in
tercept the Pacifica. See DB.108. Accordingly, the defendant has abandoned a challenge
to the reference to "don't know if this is a wingnut," and trying to dig up information on JHP.
State V. Clark, 255 Conn, at 281 n.30. If this Court considers these comments, they are not
material for the reasons that apply to the comments in the Don't-Know Call (D.Ex.D).
 5. SRT Call (D.Ex. E); 173320 (CH9_080042D0_669.wav): not in Dispatch Log;
D.Ex. E (F/oyd hearing): DB.109 #6; relevant content:

Officer asks "We want to know, Brian and I are out on West Johnson, if
you want us to come in and start suiting up;" Answer, "we'll call you if we
need anything - if we need you."

6. Don't-Know Call (D.Ex. D); 173340; listed on Dispatch Log; D.Ex. D {Floyd
hearing); DB.109 #7; relevant content:

All right. Did you get that so far? ... Apparently she came into the bank,
she tried to get some money out. ... One of the accounts was in the hus
band's name, and then she says well my kids are at home tied up so we
don't know if they really are or if she was just trying to get money out of
the bank at this point. ... The car is at the house from what I understand.
The car is at the house. She got 15,000 dollars in cash in three envelopes
with 5000 dollars a piece. They're all strapped. So 15,000 dollars in 50
dollar bills, (responses omitted).

1. Additional facts pertinent to police response

To determine materiality, this Court must compare the unproduced communications
to the information that the defense had and used at trial.^^ Accordingly, the state sets forth
below the manner in which the defendant used police response when examining witnesses,
other evidence of guilt and closing arguments to the jury.
a. Use of police response during trial
At trial, Officer Thomas Wright, a Cheshire police officer, testified that at 9:30 a.m.
on July 23, he was dispatched, as part of a call to all units, to a suspected home invasion at
300 Sorghum Mill. T.9/19/11 at 145. He was about six mites away in a marked car, and, on
the way to the scene, stopped off at the police station to pick up his SRT (special response
team or SWAT) gear, including weapons, for himself and for Officers Jimmy Nemphos and

The defendant asserts that, at trial, he disputed that he had killed or had intended
to kill anyone, or that he had anally raped MP, and that his police statements supported
that defense. "In response, the prosecution called a number of Cheshire police officers
and other witnesses in order to undermine the credibility of the exculpatory portions of
the defendant's statement, including, most significantly, Cheshire Det. Joseph Vitello who
took the statement." (Emphasis added.) DB.107. The state in fact called police witnesses to
meet its burden of proving the defendant's guilt beyond a reasonable doubt.
Chris Cote, who were on their way to or already at the scene and had asked him to retrieve
their gear. Id at 145-48. Upon arriving at the scene, he parked, gave Officer Cote, who had
set up a road block, his SRT gear, tried to find Officer Nemphos to give him his gear and
found the wounded WP instead, talked to 911, saw the defendants' attempt to flee, and
then noted the fire and attempted to enter the house to rescue the occupants. Id. at 149-62.
On cross examination, the defendant elicited that: Captain Robert Vignola, who was the
commander at the scene, was not with SRT; id. at 164; the SRT commander was not at the

scene; id. at 165; Wright was specifically directed to get SRT gear to Nemphos; id. at 165;
there was a general command not to approach the house; id. at 165; and, as evidenced in
the Dispatch Log, D.Ex. A, he called for an ambulance about 7-8 minutes after arriving at
the scene. Id. at 168.

Sergeant Philip Glampietro testified that he was working an extra duty assignment
near the victims' neighborhood on the morning of July 23 when he heard a radio dispatch
about a possible home invasion. T.9/20/11 at 93-94. He was unable to leave for about three

to five minutes due to construction vehicles obstructing the road. Id. at 94. He arrived at the
scene within about five minutes. Id. at 95, 99. He drove by the residence and broadcast a
description of it, and then parked where he could watch the house. Id. at 95-98. There were

no other officers there when he arrived. Id. at 95. While looking through the trees, he saw
two white men on the driveway, and then observed Vignola pull his car in behind the Chrys
ler Pacifica. Id. at 99-100. Giampietro described the Pacifica backing into Vtgnola's car,
over the lawn, and out onto the roadway; he observed it speed out of sight and heard the
crash. Id. at 99-104. His attention was drawn to the fire in the house, and he and others
made unsuccessful efforts to enter the house to rescue its occupants. Id. at 105-10. On
cross examination, the defendant elicited that Giampietro was not a member of SRT; Id.
at 111; and explored whether he and the other first responders made the fire worse by
opening doors. Id. at 112. He elicited that: the entry in the Dispatch Log, D.Ex. A, of his
transmission at 9:31:12 reflected the time of his own transmission and not the time he first
heard the call; id. at 114-14; the Dispatch Log, shows that between 9:31:12 and 9:31:43, he
asked D1, Vignola, for permission to drive by the house; id. at 115; he was not sure whe
ther he or Officer Wright first arrived at the scene; id. at 117; because he was in his own
private car, Vignola give him permission to do the driveby; id. at 117; when he drove by, he
saw cars in the driveway; id. at 118; he turned around, did another driveby, parked and
then saw the two men in the driveway: id. at 118; he did not intercept the Pacifica between
the bank and the house because by the time he got to the scene, It was already in the
driveway. Id. at 120-21. The defendant also explored whether he knew if there was any
attempt to intercept the Pacifica before it got to the house. Id. at 121.
Captain Robert Vignola testified that: at 9:27 Captain Marchand called him regard
ing a possible hostage situation; T.9/20/11 at 125; he assigned Detectives Novi and Vitello
to go to the scene and he and Boucher, in unmarked cars, also went; id. at 127; they
arrived in eight to ten minutes; id. at 128, 131; while en route he sent two officers to the

bank to investigate, granted Giampietro's request for a driveby, spoke with Deputy Chief
Popovich who relayed Marchand's order not to approach the house because the victim had
told the bank manager if she called the police the criminals would kill her family, and or
dered the closure of roads into the Cheshire site; id. at 128-29; on his arrival at the scene,
he did a driveby and assigned officers to positions; id. at 130-31; Marchand relayed to him
the P home phone numbers for Vignola to use if and when he wanted to contact the house
but Vignola wanted more people on the inner perimeter before he called; id. at 132-33;
while waiting to complete the inner perimeter he got a phone call from Lt. Fasano stating he
had spoken to the bank manager who related what had happened at the bank and that she
believed JHP; id. at 135; while observing the house from his car, he heard communication
between Nemphos and Vitello that they heard "Dave, Dave, Dave" and at about the same
time the defendant suddenly appeared running out of the house and to the Pacifica; id. at
136; the defendant threw something in the car, ran back to the house and reemerged with
Hayes, got into the van and at about the same time he heard communications that WP had
been discovered, severely beaten, at his neighbor's house; id. at 137; he moved his car to
, block the driveway and was struck by the van; id. at 137-38; the van got hung up on a
stone wall and came crashing off of it and proceeded at high speed up the road; id. at 139-
40; he then detected smoke, called in a fire and he and others attempted to find a way into
the house; id. at 141-43; and when he heard over the radio that the van had crashed into

the barricade, he asked Vitello to find out if anyone was inside and alive. Id. at 142.
On cross examination, the defendant elicited that until Vignola arrived on scene,
the incident commander was Captain Marchand or Deputy Chief Popovich, and that he be
came on-scene commander, making assignments. T.9/20/11 at 145. Although the SRT
commander was not at the scene, SRT personnel, Nemphos, Cote and Wright were pre
sent. Id. at 146. The defendant then reviewed with Vignola the Dispatch Log, D.Ex. A, elicit
ing that: he did not hear the initial broadcast about the report from the bank and Marchand
called him at his desk; id. at 148-49; at 9:26:58, Nemphos reported that he was at a loca
tion a mile from the victims' house and some time elapsed before Nemphos reported arriv
ing at the scene:/cf. at 152, 161; 163-64, 167; between 9:32:02 and 9:35:43, C3 (Nemphos)
broadcast to headquarters suggesting that SRT personnel set up close to his car; id. at
166; and at 9:40:49, C3 (Nemphos) advised A8 (Cote) that two SRT officers were on extra
duty jobs.Id. at 167. The defendant explored whether an order not to approach the house
was consistent with policies in place for hostage situations. Id. at 152-53. At 9:28:44, Mar
chand asked Vignola if he was en route, but he and Boucher were still gearing up. Id. at
154. Defense counsel played the recordings of several of the communications listed in the ^
Dispatch Log, D.Ex.A. Id. at 160-70; T.9/21/11 at 6-19, 20-23. Vignola discussed the "four
C's" for managing a hostage situation learned in police training: Control, Contain, Call SRT

The next entry in the Dispatch Log, D.Ex.A, states that AS asked C3 if the SRT
officers were with him, and that C3 answered no, just wanted him to be aware. See
Dispatch Log. D.Ex.A; D.App. at A37.
unit and Communicate. T.9/20/11 at 169. Eighteen minutes after the original 911 call, the
perimeter was set up and Vignola detailed where the participants were located. Id at 170.
Q So, you've got one, two, three, four, five, six personnel within fairly close
proximity of the house, right?
A Yes.
Q You have also Regan over there with one roadblock, correct?
A Yes.
Q And you have Officer Sutherland on the other side of the other roadblock?
A That's correct.
Q And at some point, maybe a little bit later, maybe going a little bit further,
at some point Officers Wright and Cote show up?
A Yes.
Q They hightail it back behind the houses on foot?
A I assigned Sergeant Cote to go in front of the residence.
Q Okay,
A And he and Officer Wright was to go to the rear of the residence and
meet up with Officer Nemphos.
Q That's when he encountered [WP] outside?
A Yes.
Q But they were on foot, correct?
A At that point, yes.
Q And they had their tactical gear?
A Rifles, yeah.
Q Okay. How many more officers were you waiting to show up before you
made contact?
A Probably a few more minutes before making contact. As soon as Officer
Wright was to get to Officer Nemphos, I got off the phone with Lieutenant Fasa-
no who is at the bank. ... After what he discussed with me, I advised his SRT
command up, they started activating SRT. Sergeant Cote, now Lieutenant Cote
was moving up, and as soon as Officer Wright was positioned with Officer Nem
phos, I've got two in the back, a rescue team, myself, Detective Boucher, as well
as Sergeant Cote in the front on that inner perimeter, and I would have initiated
contact at that point.
Q You are saying this is all consistent with the four Cs?
A Control, contain, communicate, call SWAT. ... It doesn't have to be nec
essarily in that order.
Q Isn't the first C communicate?
A No.

Id, at 171-73. The defendant also explored whether the procedures used were consistent
with a particular training, and Vignola stated that the training referred to was for active
shooters, which is different from hostage situations. Id. at 174.
 Sergeant Jeffrey Sutherland testified that he was at the Cheshire Youth Center
when he was directed to respond to 300 Sorghum Mill Drive, and it took him approximately
five minutes to get there. T.9/21/11 at 32-33, 43. He was in his cruiser, and was told not to
bring marked cars into the area but to shut down the road. Id. at 33. He and Cote set up a
barricade, he took out his patrol rifle and took a position behind his vehicle. Id. at 35. He
detailed hearing the radio report that the suspects were on the move in the Pacifica, that
the car sped toward them and he had to dive to the curb to avoid being hit, and that he took
a position with his rifle directing the operator to show his hands. Id. at 35-39. On cross
examination, the defendant explored how long it should take to get from the Youth Center
to the scene, and demonstrated by way of the Dispatch Log, D.Ex. A, that at 9:27:37, Su
therland, as Unit 1, broadcast that he was turning into Higgins Road from South Main
Street, that in the three-minute-forty-second communication beginning at 9:32:02, Unit 1
was directed to set up at Sorghum and Nutmeg, but he had already gone around the block
to move to his position on the other side; and inquired whether it should take the same
amount of time to get to Sorghum Mill from the bank as from the youth center. Id. at 43-45.
Lieutenant Jay Markella testified that he was a member of Cheshire's SRT and
was called to the scene, but his SRT pager did not work, so that he arrived after the house
was on fire. T.9/21/11 at 96-98. He described how members of the SRT team entered the

house and looked for victims or a third suspect. Id. at 99-104.

Detective Joseph Vitello (whom the defendant characterizes as the "most signifi-
cant[]" witness the state used to respond to his defense, DB.105) testified that he was at
the police station when Captain Vignola assigned him to a possible hostage situation.
T.9/21/11 at 116. He went with Officer Novi in an unmarked car. Id. at 116. He parked
where he could see the front of the house, rolled down his windows so he could hear noise,

and then heard someone calling "Dave, Dave." Id. at 117-18. While trying to ascertain the
source of the voice, he heard over the radio a communication that "they" were fleeing. Id. at
119. Vitello observed the victims' car taking flight over the lawn; he activated his lights, pur-
sued the car and observed it crash into the blockade. Id at 120-23. He described removing
Hayes and the defendant from the car and placing them under arrest. Id. at 124-30. When
he asked Hayes if others were in the house. Hayes kept saying that he did not know, things
got out of control, and the defendant told him that there were three in the house, and that

the woman may be dead, strangled, and pointed at Hayes. Id. at 128-29. Vitello stated that
when he asked the defendant the question, he had stopped the defendant by grabbing the

front of his shirt as he was being walked to a cruiser. Id. at 128-29; T.9/26/11 at 56. He fur
ther described the search of the Pacifica and a walk-through of the burned-out house.
T.9/21/11 at 130-33. On cross examination, defense counsel explored the search by war
rant of the defendant's house, including that the officers seizing the desktop computer be
lieved that it was in the process of deleting files; T.9/22/11 at 57-73; T.9/26/11 at 11-17;
and that the laboratory reports on the computers do not indicate that a program had been
deleting files. T.9/26/11 at 15-16.^® Defense counsel reviewed; Vitello's response to the
crime, including that no officer stopped the Pacifica between leaving the bank and returning
to the house; id. at 19; the communications with other officers after he took his position to
observe the house; id. at 20-23; the conduct of the two suspects during their arrests and
whether the defendant was cooperative in comparison to Hayes; id. at 25-36; and the
amount of gas on the gloves taken from Hayes compared to those taken from the defend
ant. Id. at 37-39. Defense counsel also explored the degree to which the defendant's state
ment prompted investigation that corroborated the statement; id. at 47-52; and whether the

defendant volunteered his statement at the crash that the two girls were upstairs or only
relayed the information because Vitello grabbed his shirt, Id. at 61-62.
Detective Vitello testified about taking the defendant's statement. T.9/21/11 at 134-
46. The recorded statement was played to the jury. S.Ex.s 188A, 188B; T.9/21/11 at 146-
86; T.9/22/11 at 15-43. The defendant was wearing latex gloves that remained on his

John Farnam, of the computer crime unit of the forensic lab, testified that when he
examined the computer, he found no evidence of an erasure program. T.9/28/11 at 48-52.
hands until the police took them off after the statement had been completed. T.9/22/11 at
49. On cross examination, defense counsel explored that Vitello and Medina interviewed
the defendant for four hours, memorialized only by Vitello's notes; id. at 52-53; that Vitello
did not record the advisement and waiver of rights; id. at 53-54; how Vitello determined
what he would take notes of; T.9/22/11 at 55; and how it could be determined that the unre

corded statement was consistent with the recorded statement. Id. at 56. Vitello stated that:

it was not correct that a lot was discussed in the unrecorded four hours that was not on the

audio tape; T.9/26/11 at 41; the defendant never broke down or showed emotion; id. at 41;

and the defendant was "absolutely willing" to talk, showed no hesitation, and was "some
what" cooperative. Id. at 43. Vitello denied that he was aware that the defendant had not

slept; id. at 43; and stated that, although he asked whether the defendant was under the in
fluence of medications or alcohol, he did not ask the last time the defendant had slept; id. at
44; and that he promised no favor and the defendant did not ask for one. Id. at 45-46.

b. Other evidence presented

The defendant's DNA was in MP's anal samples; T9/29/11 at 108-09; testing elimi
nated MP as the source of DNA from the defendant's penis. Id. at 110-11.
Detective Paul Makuc testified that the fire was caused by the ignition of an ignit-
able fluid that exhibited a continuous pour pattern, a conclusion that does not exclude the
possibility that more than one person poured the fluid. T.9/30/11 at 82. That it was a conti
nuous pour also does not exclude the possibility that more than one container was used in
pouring the gasoline. Id. at 23-27, 62, 82-83. On cross examination, defense counsel ex

plored the impact on the fire of first responders' opening doors and breaking windows. Id. at
90-91. The detective reiterated that a conclusion that it was a continuous pour does not ex
clude the possibility that more than one person poured the gasoline. Id. at 100.
Jack Hubball, forensic chemist, testified that tests of the defendant's boots, pants
and sweatshirt were positive for gasoline; the defendant's socks, briefs, shirt, work gloves
and latex gloves did not indicate the presence of gasoline. T.I0/3/11 at 76-80. On cross
examination, the defendant explored whether gasoline or turpentine can be used to clean
construction tools and as a solvent. Id. at 96, 102-07.

Blood stains on the defendant's sweatshirt tested consistent with WP. T.9/29/11 at

106-07. The defendant's gloves, seized after he gave his statement, tested negative for
blood and gasoline. T.9/26/11 at 38, 59-60; T.9/29/11 at 50; T.I0/3/11 at 79, 93.
c. Ciosing arguments
In the state's first closing argument, it articulated the facts, see lli.A.3, from which
the jury could infer that the defendant intended to kill. In addition, after recapping evidence
of gas on the defendant's boots, pants and sweatshirt and its absence on his socks, briefs,
gloves or shirt, the state argued that the jury could infer from 1) the defendant's latex
gloves not being seized until after he had given his statement and his going to the bath
room, and 2) the gloves also not having WP's blood on them, that the defendant had
washed his hands when he went to the bathroom, removing blood and gas. T.10/11/11 at
40. The state argued that, because the Stop & Shop video, which was taken between the
defendant leaving his construction job and the home invasion, showed that he was wearing
different clothing than he wore at his arrest, the jury could infer that he had changed out of
his work clothes when he cared for his daughter Sunday evening before the home invasion
and that the gas found on his clothes was not due to his construction work. Id. at 40-41.
During his closing argument, defense counsel argued reasons to believe that Hayes
called the shots at the scene; T.10/11/11 at 61-64; and noted the defendant's statement

about the efforts he took to make WP comfortable in the basement; id. at 69; and his claim

to have protested when Hayes told him that Hayes wished to burn the house down with the
occupants inside. Id. at 72-73, 75. Counsel also asserted the following:
We know at 9:21, the 911 call came from the bank. The police, one of the most
heartbreaking things, heartbreaking, no matter how many times you hear this,
after obtaining the Information, places Mary Lyons on hold, maybe what he was
doing is alerting other people in the police station, but it sounds as though he is
taking another call. We know at 9:23 [JHP] leaves the bank. We know at 9:24
the manager gives the marker plate to Officer Miller. We know that at the next
one, at 9:25, there's a headquarters' broadcast to all units. We know at 9:26
 there is another broadcast for the incident and the Incident is at 300 Sorghum
Mill Drive. At 9:27, Officer Nemphos is almost there. There's a vehicle descrip
tion to all units. And then 9:27, the first unit - at 9:27:54, Captain [Marchand]
tells units not to approach the house. And now we also know from the telephone
records that at 9:28 or close to that, at 9:28 the telephone records show that as
they were - as he was going to the bank and coming back from the bank, Ste
ven Hayes was in constant communication with Joshua Komisarjevsky. And you
see the final call is at 9:31. At 9:31, after the Cheshire Police have already got
ten to the scene, they could have stopped him on the way back.
I'll talk a little bit more about the Cheshire Police reaction later. ...

Id. at 73-74. Defense counsel describes the sequence of events from Hayes' raping and
strangling JHP, through WP's escape.
I want you to see how quickly all of this occurs. At 9:54, we are on Hotchkiss and
we hear an 18, calling the name of Dave. Do you know where it is coming from?
We know what it is, that's [WP] at his neighbor's house calling Dave, Dave,
Dave. Maybe as he was going across the lawn, he was calling Dave, Dave,
Dave. And then at 9:56, there is activity in the driveway, two suspects In the
Chrysler. We're talking about a very, very compressed time period.
What is going on during this time period? Hayes is pouring the gasoline in the
house. ... It's the first floor centered upon [JHP], and then it goes to the stairs,
and then there is also a second floor, that's up the stairs and goes in the various
bedrooms. It is a continuous pour and Hayes is the one who pours it. ... Hayes
poured that continual pattern. ...

Now, I want to talk to you about eight different issues that arise in the case. ...
The second thing I want to talk to you about is the Cheshire Police. It is no de
fense to a crime that the police did not act swiftly enough, or they made bad de
cisions, or that had they acted differently this terrible tragedy might not have oc
curred. This case is so full of what ifs. What if [JHP] had been delayed going to
the - delayed going to the Stop & Shop or had gotten there earlier?
The real what ifs happen with respect to the police. What ifthe police had inter
cepted Hayes on the way back while he was making that last call to Komisarjev
sky? What if they announced their presence, they wouldn't have burned down
the house surrounding it. Even paranoid schizophrenics stop for red lights. The
what ifs can kill you. What does it have to do with Joshua Komisarjevsky's guilt
or innocence? What it does have to do with is evaluating the testimony of
the Cheshire Police, in particular Detective Vitello. ... Police officers will col
or their testimony somewhat toward the prosecution, but in this case, ifs very,
very different because you could see Detective Vitello and the other Che
shire Police officers are left with every day what if I had done something
 differently, what if I had done something differently, and this colors their
testimony with respect to Joshua Komisarjevsky. It's not just that a police of
ficer says, I want there to be an arrest. It's not just this is a horrible crime, I want
the man that was arrested to be punished. It's we may have made mistakes
that coutd have saved lives, I believe, and you could see it in his testi
mony. He said two days later they went to the Komisarjevsky house and seized
the computers, and the parents. I guess, had running on the computer some
program that is deleting all the materials on it. It's just not true. There is no basis.
The computer expert when he looked at the computers said all the files were on.
There was no indication that there had been a file deleting program. You could
see it too when the officer, he never said he poured the gas, well, this was that
place. Well, he, we, that's what my brother showed me during the course of his
argument. And it sounds as though Joshua actually admitted, with respect
to that, to that one, to that misstatement,[^^] you will see those throughout the
course of Joshua's confession, he will say I, we, he, and If you think about it,
he's been talking since 1:00 o'clock, all right? ...
That section that was highlighted by the State is really a thin reed on which to
embrace a claim that Joshua Komisarjevsky intended to cause the death of any
body in Cheshire.

(Emphasis added.) Id. at 82-84. Defense counsel recognized that, although defense coun
sel had said in his opening statement that there would be evidence that the defendant had
slipped in the gasoline, Vitello denied that the defendant had told him that he had slipped.
Id. at 84-85. "Well, you can't say, knowing what the detective feels about the case, he is
not telling the truth about that in order to find that it happened." (Emphasis added.) Id.
In its rebuttal, the state first contested factual arguments the defendant had made;
T.10/11/11 at 108-113; including, respecting whether the defendant had anally assaulted
MP, the fact that there was no anal injury did not mean that anal rape did not happen, and
there was no evidence that it was inevitable that, had anal penetration occurred, MP's fecal
matter would be found on the defendant's penis. Id. at 109-11. The state also detailed rea

sons that the defendant's statement was not credible, including the presence of the defend
ant's DNA in MP's rectum; id. at 114-15; the evidence demonstrating, contrary to the state-

T.9/22/11 at 35 (in defendant's statement, "I was hoping that he was just pouring it
into the office because we didn't pour any gasoline, or he didn't pour any gasoline In. in the
office, you know, and we had spent a lot of time sitting in the chairs in there.")
ment, that WP was tied to the pole In the basement; id. at 116; that, respecting the defend
ant's belief that MP was 14 to 16 years old, if the defendant truly had talked to MP about
school and summer plans, he would have discovered that she had just graduated from fifth
grade; id. at 116; that, where WP heard sounds of thumping and groaning from the base
ment just before he fled, it was Incredible that the defendant did not hear Hayes raping and
killing JHP; id. at 117; and that the jury could conclude that it was the defendant who spoke
to WP. Id. at 118. The state then concluded with the reasons the jury could find that the de
fendant was the person who called the shots during the home invasion. Id. at 119-27.
d. Additional evidence adduced at Floyd motion and
hearing
As set forth above, the defendant filed the August 29, 2014 Motion for Augmenta
tion, D.App. at A338, a Floyd hearing was held to determine whether three police communi
cations, that the state claimed had been produced in the CDs sent under item #87 of the
September 13, 2007 letter, had been produced, and whether the communication disclosed
by CHR existed. See section lll.F. re CHR communication.

At the Floyd hearing, Todd Bussert testified that the CD of dispatch calls found in his
trial file was given to him by Donovan; he had just the one CD. T.2/23/16 at 45-46. The
defense strategy was to use the calls to attack the police response to "front load mitigation
for the penalty phase Id. at 47. Defense counsel wanted the issue of whether the tra

gedy might not have occurred if the police had responded differently "out there early in the
guilt phase of the case, assuming that we were going to move to a penalty phase ...." Id. at
48. Bussert was assigned the role of dealing with the police response and to fulfill that role,
he paid close attention to the calls. Id. at 48-49. I

I think my objective in part in terms of cross-examining Captain Vignola I

which is the witness who these calls came in through, was to just establish fully
and accurately the police response in terms of when events occurred, where
individual officers were, and the like, because again, I think the evidence was
pretty clear that a perimeter was established and then part of the purpose of
cross-examination was to show that they didn't actually engage anyone; they
just kind of set up a perimeter.
 Q So one of your objectives was to demonstrate an inadequate police
response, right?
A Yes, from our perspective, yes.

Id. at 49. He did not locate any communications directing an SRT member and a hostage
negotiator not to come nor one questioning JHP's credibility. Id. at 50. These calls would
have been significant because
part of what we requested through discovery consistent with this was the SWAT
team's protocols, and when we called some of that into question because, in this
case, it was clear that they didn't follow the protocols such as filing an after
action report even though the SWAT team responded, but the notion that - that
the vehicle was seen, that there was a hostage negotiator available, and that
they wouldn't actually have that person respond to the scene and would've af
firmatively tell them not to respond or that they would just turn people who were
properly trained for these types of situations away, I think is fairly significant.
And so just to kind of complete the circle relative to this question, which is again,
part of it was the mitigation aspect of it, but the other part which I think Attorney
Donovan did bring out in his closing was this idea that relative to how the police
described Mr. Komisarjevsky on the day in question and interviews and things
that may have been said outside of - you know - the recorded statement that he
made, that they were trying to - in an effort to paint themselves in the most posi
tive light, paint him in the most negative light and we felt - you know - perhaps
were skewing their testimony in that way.

Id. at 51. Bussert acknowledged on cross examination that the Dispatch Log. D.Ex. A (trial),
S.Ex. 2 {Floyd hearing), contains the reference to call 173328 in which C3 advises A8 that
two SRT officers were on special duty, and, in 173329, that the two confirmed that the two
SRT officers were not with C3 at the scene. Id. at 53-54, 58.
2. There is no reasonable probability that the result of the trial
would have been different if the communications had been
produced at trial.
The defendant cannot prevail on his claim that there is a reasonable probability that
the result of the trial would have been different had the six communications respecting
police response been produced at trial. The defendant claims that this evidence would have
permitted him to impeach the police with their anger and embarrassment about their inade
quate response to the 911, to demonstrate their motive to undermine the credibility of ex
culpatory portions of his statement, such that the jury would have credited the defendant's
statement denying that he killed anyone, that he intended to kill any of the three women
and asserting that he performed only cunnilingus and masturbated upon MP. DB.101-02.
To the contrary, the nexus between the evidence of police response and motive to
fabricate is weak, and the undisclosed evidence was cumulative to that used by the defend
ant at trial during cross examination and closing argument. Where the purpose of impeach
ment evidence is to have the jury aware of facts which might motivate state witnesses to
testify falsely, the defendant had ample facts to make his arguments about the police mo
tives in this case. See U.S. v. Cannady, 719 F. App'x at 241 (suppressed information cumu
lative impeachment evidence and, even standing alone, of inconclusive impeachment va
lue): Gibson v. Sec'y Pennsylvania Dep't of Corr., 718 F. App'x 126, 132 {3d Cir. 2017)
(cumulative impeachment evidence is superfluous and therefore has little, if any, probative
value); U.S. v. Wright, 848 F.3d 1274, 1283 (10th Cir.) ("Where evidence insignificantly im-
pact[s] the degree of impeachment, it generally will not be sufficient to meet the ... materi
ality standard." (Internal quotation marks omitted.)), cert, denied, 138 S.Ct. 115 (2017).
Each of the calls was cumulative to evidence at trial. With respect to the Intercept
Call (D.Ex. C-4A), the defendant used evidence that police had been directed to try to inter
cept the Pacifica and argued that they could have done so. See T.9/20/11 at 188 (Giampie-
tro did not intercept Pacifica); T.9/21/11 at 43-45 (Sutherland was at nearby Cheshire
Youth Center), T.9/26/11 at 19 (exploring with Vitello that no one stopped Pacifica). The de
fendant misstates the timing of the call when he argues that Regan called Cote before the
9:26:08 broadcast to all units. See Dispatch Log, D.Ex.A (trial). DB.108. The Intercept Call |
I

(D.EX.C-4A) is part of a long recorded communication; though the recording begins at

9:25:15, the statement that directs Cote to head out does not occur until about 2 minutes

into the call, about a minute after the broadcast to all units. Thus, this call would not have

provided different support for a claim that the police should have intercepted the Pacifica.
As to the Heading-out Call (D.Ex. C-4.E), indicating that Vignola stated, at about
9:27:52, that they were "heading out" to Sorghum Mill and looking for a Pacifica, the de-
fendant had and used similar information - i.e. that Cheshire police were dispatched soon
after JHP and Hayes left the bank, knowing what the car looked like and where it was
heading. See e.g. T.9/19/11 at 145 (Wright dispatched via call to all units); T.9/20/11 at 93-
94 (Giampietro dispatched via call to all units). The Driveby Call (D.Ex. C-4B), between
9:36:18 and 9:36:45, demonstrating that Vignola would do a driveby and that Giampietro
had stated that the car was in the driveway, duplicates other information detailing that offi
cers had done a drive by the house and had seen the car in the driveway. See e.g.
T.9/20/11 at 95-98, 118 (Giampietro did driveby, cars in the driveway): T.9/20/11 at 130-31
(Vignola did driveby). The defendant asserts, DB.109, that these two calls demonstrate that
Vignola, when he said "we are heading out," actually left the police department at 9:27:52,
almost four minutes before Hayes made his last call to the defendant from the Pacifica, and
that Vignola reported that he is still on the way to do a driveby between 9:36:18 and
9:36:45, nine minutes after "heading out." and thus that it was improbable that Vignola did
not arrive at the residence before the Pacifica. DB.109 and n.95. This chronology is belied
by the Dispatch Log, D.Ex. A (trial) and Vignola's testimony, which show that at 9:28:44,
Marchand asked Vignola if he was on his way but he and Boucher, were at that time, still
gearing up. T.9/20/11 at 154. The record does not show when Vignola got on the road, and
thus these calls do not demonstrate that Vignola could have intercepted the Pacifica.
The Hostage-negotiator Call (D.Ex. F), where the hostage negotiator was told not to
come in, although not directly duplicative, is cumulative of the examination of Vignola re
garding receiving a call with the numbers of the house phone, discussing the preparations
ofthe inner perimeter that he wanted to complete before initiating contact, and the extent to
which that conduct was consistent with training that officers had received for dealing with
hostage situations. T.9/20/11 at 132-33; 146; 166-67; 171-73. Nothing in the record shows
that the person who called was the only CPD officer trained in hostage negotiation.
The SRT Call (D.Ex. E), where a member of SRT was told he would be called if
needed, is cumulative of the evidence presented that three members of SRT responded to
the call for all units to respond and got their SRT gear; T.9/19/11 at 145-48; that Nemphos
advised Cote that other SRT members were on special duty jobs; see Dispatch Log,
D.Ex.A, call at 9:40:49; that the SRT commander was not at the scene, and, that when SRT
was activated, members of the SRT unit arrived after the fire had begun. T.9/21/11 at 96-
98. Despite the defendant's argument, DB.106, that the call telling the SRT member not to
come in would have been critical to his defense, the defense had information at the time of

trial that two other SRT officers were available, that fact was made known to commanders
and the SRT officers were not asked to come to the scene. T.2/23/16 at 53-54, 58.
Finally, the Don't-Know Call (D.Ex. D), in which the speaker indicated that he did not
know if the statement of the woman at the bank that her family was tied up at home was
true, was not, as the defendant asserts, questioning her credibility, but rather a statement
that the investigation was at its beginning, and the police were trying to figure out what was
going on. This was cumulative to the evidence that, while on the way to the victim's house,
Vignola sent two officers to the bank and that the investigating officers reported to Vignola
that the bank manager believed JHP. T.9/20/11 at 128-29, 135.

The suppressed evidence could not have been material. It did not impeach any wit
ness who testified directly about the defendant's guiit. Rather, the evidence is relevant to
the defendant's attempt to highlight the motivation of police officers to deflect criticism of
the quality of their response, which was intended to impeach their credibility on issues such
as the defendant's cooperation at his arrest and his demeanor when giving his statement.'
The defendant asserts that this was particularly important with respect to Vitello, because
he arrested the defendant and took his statement and Vitello's testimony was critical to the
credibility of the defendant's denial of an intent to kill. DB.106-07. The defendant relies on

five apparently contested points in Vitello's testimony: how forthcoming the defendant was
about his own culpability in his statement. DB.106; whether the defendant immediately told
Vitello that the two girls were alive in the house; DB.106; whether the defendant could have
washed the gasoline from his gloves when he went to the bathroom while giving his state-
ment; DB.106; whether the defendant cleaned MP's fecal matter from his penis during that
bathroom trip; DB.107: and Vltello's denial that the defendant told him he had slipped in the
gasoline.^® DB.107. In closing argument, defense counsel addressed the effect that criti
cism about the police response would have on Vitello's testimony - none of the missing
calls would have changed or enhanced that argument. Moreover, the absence of this evi
dence cannot undermine confidence in the jury's determination that the defendant had in
tended to kill because the state relied on many facts other than Vitello's testimony for proof
of intent. See Trujillo v. Sullivan, 815 F.2d 597, 613 (10th Cir.) (significance of any particu
lar bit of evidence can only be determined by comparison to the rest), cert, denied, 484
U.S. 929 (1987). Although a Brady materiality inquiry is not a sufficiency of the evidence
test, where the prosecution's case regarding the defendant's intent did not hinge on Vite
llo's testimony and there exists substantial independent evidence of the defendant's guilt,
any undisclosed impeachment evidence is not material. Elsey v. Commissioner, 126 Conn.
App. 144, 159-60, cert, denied, 300 Conn. 922 (2011). Here, the state cited as evidence of
the defendant's intent his motive for destroying DNA evidence of his anal assault of MP;
that the absence of WP's blood on the gloves as well as the absence of gas supported a
finding that the defendant had washed his gloved hands; that the time frames from Hayes
strangling JHP to the defendant and Hayes fleeing the house meant that there "is absolute
ly no way" that Hayes alone poured the gasoline; and the defendant's own statements (he
untied and retied both girls, he stood guard while Hayes went to the bank and gave Hayes
directions back, he did nothing to help them while the gas was being poured). Vitello's testi
mony was a small piece of the evidence that the state relied on for proving intent. See

The defendant argues that the jury could conclude that the denial, if disbelieved,
constituted affirmative evidence that the defendant in fact told Vitello that he slipped in the
gas. DB.107 n.93. The defendant cites authority from other jurisdictions, but appropriately
acknowledges that this proposition is inconsistent with Connecticut law. See, e.g., State v.
Stovall, 316 Conn. 514, 524 (2015) (though jury free to disbelieve testimony, such disbelief
could not provide evidentiary basis for opposite finding): see also T.10/11/11 at 84-85
(defense counsel tells jury it cannot, from denial, find it happened).
Stnckler, 527 U.S. at 292-94 (where other eyewitness testimony and considerable forensic
and physical evidence linked defendant to crime, no reasonable probability of different ver
dict if government had disclosed potential impeachment evidence pertaining to key eyewit
ness); Ortiz, 280 Conn, at 177-23 (where defendant's own statement and other physical
evidence inculpated him, nondisclosure of evidence that could have impeached defend
ant's criminal cohort was not material).

In addition, contrary to the defendant's assertion; DB.107; inadequate police re

sponse was not the "central focus" of his closing argument. After first addressing the roles

that Hayes and the defendant played in the crimes; T.10/11/11 at 61-69, 72-75; and how
quickly the events unfolded following the return of Hayes and JHP from the bank; id at 77-
79; defense counsel stated he had eight things he wanted to discuss with the jury. Id. at 82.
The first was to urge jurors not to allow emotions caused by gruesome photographs to con
trol their deliberations. Id. at 82. Second, counsel addressed inadequate police response.
Id. at 82-85. Third, counsel cautioned the jury about WP's testimony; id. at 85-86; and
fourth, counsel asked the jury to disregard supporters of the victims and their pins. Id. at
86-87. Fifth, counsel discussed the significance of gas on the clothes of the defendant and
Hayes, including that, when comparing the small amount of gas on the defendant's clothes
with the large amount on Hayes' clothes, the jury should conclude that the gas on the de
fendant's clothes came from his construction work; id. at 87-88; that despite hours with the
defendant, Vitello reported no odor of gas; id. at 88-89; and that he could have gotten gas
on his clothes when he followed Hayes up the stairs and closed the doors to the girls'
rooms. Id. at 89. Sixth, counsel urged the jury to credit the defendant's confession, stating
"and this is a major part," and emphasizing the defendant's monotone speaking voice and
his evident exhaustion; that parts of the confession were corroborated by police investiga-1
I
I

tion; and that he began cooperating immediately and got nothing in exchange. Id. at 90-94.
Seventh, counsel argued why the jury should credit the defendant's statement about the
nature of the sexual assault of MP; id. at 94-96; and eighth, counsel argued how Dr. Shea's
testimony should be used to find that the defendant was unable to stop Hayes from killing
the three women and that he did not intend to kill. !d. at 97-102. Indeed, at the Floyd hear
ing, defense counsel testified that arguments about inadequate police response were of
fered pursuant to a strategy of front-loading mitigation for the penalty phase, to have the
jury prepared to diminish their sense of the defendant's moral culpability.
D. The Defendant Was Not Deprived Of A Fair Trial By Failure To
Produce Police Communications Of Shawn Patterson or Kerry
Nastri Relevant To Demeanor

The defendant claims that the state deprived him of a fair trial and a fair ruling on his
motion to suppress his statements when it failed to produce at trial the following calls
purportedly relevant to the demeanor of the defendant and Hayes:
1. Patterson Call (D.Ex. C-4C); CH10_09001CCB_669; Stipulation C ("A record
ing designated CH1 0_09001 CCB_669; in which Shawn Patterson, a Cheshire
Police Officer, speaks with Officer Brian Schechter."); not in Dispatch Log; D.Ex.
C-4C {Floyd hearing): DB.116; #1; relevant content:

I was talking to the - I was with the detective when he was talking
That kid is like, there is nobody home, dude.
Which one? The older one or the younger one?
The younger one. The darker haired dude.
Really?
There is nobody ... that dude is fucking simple as they come. ...

2. Nastri Call (D.Ex. C-4D); CH10_09001D4C_669; Stipulation D ("A recording

designated CH10_09001D4C_669: the relevant speakers are a Cheshire De-

During the Floyd hearing, defense counsel cross examined Officer Patterson,
asking him if "in your statement - in your conversation with Officer Schechter, you said that
you were with the detective when he was talking to Mr. Komisarjevsky, right?" Patterson
responded, "I don't recall saying that, but I wasn't with the detective." T.2/23/16 at 107.
Defense counsel then showed Officer Patterson a document that was not marked as an ex
hibit and asked him "Now, do you now recall saying to Officer Schechter I was talking to the
- I was with the detective when he was talking to him? Do you remember saying that?"
Officer Patterson answered "I remember saying that, but I might've misspoke because I
was never at any time with Mr. Komisarjevsky." (Emphasis added.) T.2/23/16 at 108. The
state urges the Court to listen to entry 4C on D.Ex. C {Floyd hearing), because the state
does not believe that Patterson said the words "to him."
 tective Kerry Nastri and a Connecticut State Trooper David Devito"); not in Dis
patch Log: D.Ex. C-4D (F/oyd hearing); DB.117: #2; relevant content;

...Did the officers get hurt in the cars at all?

No they were not in the cars.
The cars looked wrecked.
Oh they - they are.
They are totaled, right?
They are totaled. ... They had placed the cars so that no one would drive
into the area and there was a little gap between them and the guys tried
to -

Oh I see what he did ... - he tried to park [indecipherable] ... He hit them
hard, huh.
Oh yeah. ... And they - I'm sure their car, you know the victim's car was -
I saw the troop. I saw the troop... I saw the 2 dirtbag cars. ... There was a
red pickup and there was like a minivan.
Yeah.

I think that those are the two scumbags.

Yup.
Wow I mean that the older guy just looked evil.
Yeah?

He just looked evil. I mean you got - you know what? Your heart just
breaks as an officer watching that stuff. You know - I mean it's heart
breaking for all of us to investigate it. You know? Cuz we have families
and all that crap too you know?
Well we have - Out of all the guys that went in ... I think I was probably
the only one who didn't have children ... and we have EAP coming in
tomorrow...

1. Additional facts pertinent to the demeanor calls

a. Hearing on motion to suppress
The defendant moved to suppress his statements to the police. D.App.(l) at A303.
The suppression hearing was held on August 23, 2011, Detective Joseph Vitello testified, in
pertinent part, that after the perpetrators fled the scene and crashed the Pacifica into the
blockade, he removed the defendant from the driver's side of the car. T.8/23/11 at 16. The

defendant told Vitello his name, and the detective recognized it because he had dealt with
the defendant as a juvenile. Id at 17. After the defendant was taken to the police depart
ment, Vitello, along with state police Detective Raphael Medina, was assigned to interview
the defendant. Id at 18. Vitello asked the defendant if he recognized Vitello; the defendant
said he did and that he felt they had had a good rapport. Id. at 18-19.
Vitello removed the defendant from the cell block to the interview room at 12:55 p.m.
T.8/23/11 at 21, Vitello asked the defendant if he was hungry; when the defendant said he
was, Vitello made arrangements for food to be picked up. Id. at 21-22. Vitello removed the
defendant's handcuffs while he was in the interview room. Id. at 22. Vitello asked the

defendant if he was injured, under the influence or allergic to certain foods, something that
would prevent him from talking to them. Id. at 22.
Vitello described the defendant's reviewing and signing the waiver of rights form.
T.8/23/11 at 23-25; S.Ex.1 (suppression hearing). Vitello asked the defendant to tell what
happened at 300 Sorghum Mill, and the defendant willingly did so. Id. at 25-26. The defend
ant spoke for two to three hours, while Vitello took notes. Id. at 26-27. Vitello told the de

fendant that if he wanted to eat or use the bathroom at any time, they would stop, and the
defendant did use the bathroom. Id. at 27. Vitello asked the defendant if he would write his

statement, and the defendant agreed. Id. at 27. The form for the written statement included
a notice and waiver of rights, which the defendant read and signed. Id. at 27-28. The
defendant began writing; when it took him about 20 to 30 minutes to write one page. Vitello
asked the defendant if he would give a recorded statement and the defendant agreed. Id. at
28-29. After signing the page he had written, the defendant again received notice of, and
waived, his rights before starting his taped statement. Id. at 29-32. The defendant showed
no reluctance about giving a statement; he never asked for an attorney. Id. at 31, 33.
On cross examination, the defendant explored, in relevant part, the reason that the
detective decided it would be easier to record the defendant's statement; T.8/23/11 at 70;
whether the defendant understood his rights; id. at 71; the reasons the detective did not
record the signing of waiver forms; id. at 72-75; the length of time the defendant was inter-
rogated; id at 78-81; and whether the defendant was cooperative. Id at 88-89. Defense
counsel asked extensive questions about the defendant's mental state: the witness stated

that the defendant's mental state was "normal;" id. at 93; that he did not seem angry or
tired, and his demeanor was "fine." Id. at 93. Vitello testified that the defendant was not

emotional, he was not distraught, and to the question of whether he had a "flat affect".
Viteilo stated that "[h]e didn't fluctuate too much in his demeanor." Id. at 94.

[0]n second side of the statement, he got a little more, he sat up more, he got
more, I don't want to say animated, he got more vocal, he started to speak up a
little bit more, he seemed to almost want to discuss what we were discussing.

Id. at 94. Vitello reiterated that the defendant was awake and alert. Id. at 95. He acknow

ledged that he did not ask the defendant when he had last slept, but that he did ask if he
had been drinking, and the defendant said he was not under the influence of anything that
would affect his ability to communicate. Id. at 95. The defendant stated that he worked four-

teen-hour days, but Vitello did not recall if he said he worked the day before the murders.
Id. at 96. At about 1 a.m., July 24, the defendant gave a second statement indicating that
he had committed two unrelated burglaries in Cheshire between 1 and 4 a.m. early Sunday
morning, July 22, prior to the home invasion. Id. at 97-99; 110. After reviewing the defend
ant's statement that he had put his daughter to bed Sunday evening, had met Hayes at
about 9 or 10 p.m. that night and had driven around before breaking into the victims' home
at about 3 a.m., Viteilo stated he had no knowledge of whether the defendant had slept be
tween the Sunday morning burglaries and whatever time he may have gone to work on
Sunday. Id. at 112-14. On redirect, Vitello stated that while giving his statement, the de
fendant never nodded off or said he wished to nap; id. at 115; and did not indicate he was
"excessively tired" or that he did not understand what was being said. Id. at 115.
During argument on the motion, defense counsel argued that the detective "well
knew" that the defendant had been up all Sunday night into Monday morning. T.8/26/11 at
6. The trial court asked what evidence precluded the possibility that the defendant napped
while at the victims' home; defense counsel believed that it was obvious that he did not. Id.
at 7. The trial court also asked from what facts it could infer that the defendant had no op
portunity to sleep between the 2 a.m. burglaries Sunday morning and his meeting Hayes at
10 p.m. Id. at 8-10. Defense counsel reiterated the timeline, and pointed to factors affecting
the defendant's state of mind, such as the car accident, that the defendant had had a long
work day, and that he had had no sleep for 29 to 31 hours by the time the interrogation
began. Id. at 11-12, 17-18. Defense counsel also noted that the defendant stated he had

protested when Hayes said he intended to kill the victims, and that his shock affected his
ability to waive his rights. Id. at 19. The state argued that the defendant never complained
of sleep deprivation and that Vitello never noticed that he appeared deprived of sleep or
that he sustained any injury that would affect his ability to waive his rights. Id. at 20.
The trial court denied the motion to suppress, ruling, in pertinent part:
The defendant was arrested following a car crash at about 9;45 a.m. on July
23rd, 2007. There is evidence from the defendant's second statement that the
defendant had been burglarizing two houses in the neighborhood at about one
or 2:00 o'clock in the morning in the early morning hours of July [22nd]. The de
fendant is interrogated by the police through the afternoon of July 23rd and then,
as I stated, after a trip to the hospital for search warrant purposes, the defendant
is further interrogated through about 1:00 o'clock in the morning on July 24th.
The defendant's, as I understand it, two primary arguments:
One, that the defendant could not voluntarily and intelligently waive his Miranda
rights because of injuries from the automobile accident.
And second, ... that the defendant could not voluntarily and intelligently waive
his rights because of what the defense termed sleep deprivation. ...
I find, as a factual matter, that [the state's] burden [to prove a valid waiver] has
been carried in this case and carried quite clearly. ... [The defendant signed no
tice and waiver forms] ... So, we are back to the primary defense contentions
that either the auto accident and/or sleep deprivation rendered the defendant un
able to waive his rights in a voluntary, knowing and intelligent manner. The re
cord and the evidence simply do not bear this out.
First, in terms of the auto accident, while there was evidence of an auto acci
dent. there's no indication in the record at all that the defendant was injured in
any way, and any suggestion on that is entirely speculative. ...
In terms of sleep deprivation, the defendant's suggestion is that he was up from
at least 2:00 o'clock on the morning of July [22nd] to the time his second state
ment was completed, which would have been a little bit after 1:00 o'clock on July
- on July 24th. Two matters strike the Court in this regard: First, it is pure specu-
127
 lation as to whether the defendant was sleepless during this entire time. The evi
dence before the Court, which is that of Detective Vitello, does not firmly esta
blish what the defendant was doing at any time between 2:00 o'clock in the
morning ... on July 22nd ...and approximately 10:00 o'clock in the evening on
I July 22nd when the defendant met Mr. Hayes. That is, as I pointed out in argu
ment, is a period of about 20 hours, and I simply cannot fill in the blanks in a way
that in any way precludes the possibility of the defendant having had sleep, in
cluding fairly substantial sleep, at various times during that period of time. More
over, and much more to the point, in the defendant's numerous statements to
the police beginning with his apprehension at about 9:45 on July 23rd, there is
no indication that at any time that the defendant said that he was tired and that,
to me, is pretty persuasive evidence, especially since there is evidence that be
tween his two statements, the defendant was taken to the hospital, and there's
been no suggestion that there are medical records that the defendant indicated
to anyone at any time during this period of time that he was tired. The defendant
was 26 years old and, as far as the record indicates, in perfectly good physical
health, and under these circumstances it would be purely speculative for the
Court to find that the defendant was sleep deprived at any point in this saga in a
way that made him unable to voluntarily, knowingly and intelligently waive his
Miranda privilege. In fact, the evidence of the defendant's statements and the
testimony of Detective Vitello persuasively establish affirmatively that the de
fendant's waivers were voluntary, knowing and intelligent, and not affected by
either the auto accident or any alleged sleep deprivation.
And under these circumstances, the motion to suppress statements must, with
respect, be denied.

T.8/26/11 at 21-26.

b. Proceedings at trial
The state incorporates the summary of Vitello's testimony about the statement that is
set forth in section 1V.C.I.a. above.

Detective Markella testified that, along with other members of SRT, including Nastri,
he searched the house for victims after the fire had been put out. T.9/21/11 at 104. The
Dispatch Log, D.Ex. A, included a notation at 9:47:09 that Nastri and Brian, SRT members,
were coming to the scene. See T.7/26/16 at 16.

During closing argument to the jury, defense counsel argued, as set forth in Section
IV.C.I.c above, the reasons for evaluating the police response, and, particularly, the testi
mony of Detective Vitello. See T.10/11/11 at 82-84. Defense counsel stated the following:
 First thing we notice about the confession is Joshua's absolute mono
tone in his voice. This is a young man who is in despair, he knows, he knows
that he has no rest of his life, he knows that he is confessing to things that will
put him in jail forever. That depression you could hear. You could also hear
his tiredness. Now, he hadn't slept the night before, it's now 4:00 o'clock, 5:00
o'clock, 6:00 o'clock in the afternoon when he Is giving his statement, but he
tells the police all sorts of things that they would not know unless he told them.

(Emphasis added). T.10/11/11 at 90. Defense counsel then discussed the degree to which
the confession was corroborated and directed the police in their investigation; id. at 92-94;
and that the defendant did not ask for favor in exchange for his confession. Id. at 93.
c. Evidence from F/oyd hearing
Shawn Patterson testified that he was not scheduled to work on July 23, 2007, but
was called in around noon to cover town calls. T.2/23/16 at 100. At some point, he was
standing in the hallway looking at a bulletin board, and saw the defendant for about two se
conds as he walked with a couple of detectives past him into the booking area, whereupon
the door closed. Id. at 101, 108, 110-11. He did not interview the defendant nor was he pre
sent during any interview; he had no conversation with the defendant at that time or any
other. Id. at 101-02, 108, 110. A telephone conversation with another officer about an
assignment was subsequently recorded, wherein Patterson stated that he had seen the de
fendant and "there was nobody home" and he was "f-g simple as they come." Id. at 101-02,
106-07; D.Ex. C-4C. Patterson testified that he meant that the defendant showed no emo

tion - that in his experience, arrested people either cry or show anger or laugh. Id. at 102.
On cross examination, defense counsel explored what Patterson meant when he said "I
was talking to the - I was with the detective when he was talking ..." Id. at 108-11, see p.
132, n.40, above. Patterson stated that he said that but he misspoke because he was ne-'
ver at any time with the defendant; id. at 108; he only saw the defendant for about two se
conds in the hallway. Id. at 110. Defense counsel also cross examined Patterson about
when he first told anyone he had not seen the defendant being interrogated. Id. at 111-12.
The defendant presented no evidence respecting the Nastri call.
 2. The evidence was not material

There is no reasonable probability that had these two communications been pro
duced, the result of the trial would have been different. The defendant argues that the
communications would have affected both the trial court's ruling on the motion to suppress
and his efforts to persuade the jury to credit his statement. DB.115-18.
As a preliminary matter, the defendant makes arguments without acknowledging that
at the Floyd hearing, he did not ask the trial court to rule on materiality. Asking this Court to
do so here is an improper request that this Court engage in appellate fact-finding. State v.
Rizzo, 303 Conn. 71. 97 n.16 (2011), cert, denied, 568 U.S. 836 (2112). First, he asks this
Court to conclude that Patterson is not credible when he testified that he was not present
for the interrogation of the defendant. DB.116 n.103. Appellate courts are in no position to
determine the credibility of a witness. State v. Lawrence, 282 Conn. 141, 156 (2007). In any
event, there was much testimony about the interrogation, both at the motion to suppress
and at trial, and nowhere is there any indication that anyone other than Vitello and Medina
was present. Indeed, at the beginning of the defendant's statement, Vitello states that the
persons present in the room were himself, Medina and the defendant. See S.Ex. 188B,
188C (CDs); 189B (transcript); T.9/21/11 at 146-47. There is no mention of Patterson.
Officer Patterson's statements in the Patterson call (D.Ex. C-4C) are not material be
cause any conclusion that can be drawn from them was duplicated by information at trial.
The jury listened to a tape recording of the defendant's statement, and Viteilo testified that
the defendant showed very little emotion when he gave it. Defense counsel argued that the
defendant sounded flat and exhausted. It is not reasonably probable that Patterson's com
ment could have affected the trial court's finding that the defendant validly waived or the
jury's judgment of the defendant's credibility.
With respect to the Nasth call (D.Ex. C-4D), the defendant argues that Nastri stated
that Hayes looked evil, and that that statement could have supported his argument that
Hayes was in charge. DB.117. First, the tape itself makes absolutely clear that it is Con-
 necticut State Trooper David Devito who stated that Hayes looked evil (e.g., the other
speaker referred to going into the house and getting offered EAP counseling, and Nastri
went into the house. T.9/21/11 at 104), and there is no evidence that Devito ever saw
Hayes in person or had any role in the investigation. If it is not clear that Devito made the
statement, then, because the defendant did not ask the trial court to make a finding as to
who made the statement, it would require inappropriate appellate fact-finding by this Court
to determine who made the statement. Furthermore, the record does not indicate whether

observations during a conversation typical of gossip reflected what Hayes looked like at the
Itime of the crimes. Thus, this unproduced communication was not material.
E. Considered Cumulatively, The Suppressed Evidence Was Not
Material.

This Court's analysis does not end with the conclusion that no singular piece of sup
pressed evidence is material on its own. The evidence must be considered cumulatively.
Kyles, 514 U.S. at 436-37; see also Wright v. Sec'y. Fla. Dep't of Coir., 761 F.3d 1256,
1278 (11th Cir. 2014). "In doing so, we first evaluate the effect of each suppressed item on
its own and then weigh the cumulative impact of all the suppressed evidence. Kyles, 514
U.S. at 436 n. 10 .... Only at the end do we consider the suppressed evidence 'collectively,
not item by item.'" Wright, 761 F.3d at 1278. When all of the evidence is considered cumu
latively, the defendant has not proven a Brady violation.
F. The Trial Court Did Not Err In Determining That The Defendant
Failed To Prove The Existence Of A Communication Referred To
By CHR
The defendant claims that, when the trial court ruled that the defendant had failed to

establish the existence of a communication that CHR claimed to have seen a summary of,
it committed three errors. The defendant claims that the trial court erred: first, in finding that
the defendant failed to prove that the call existed; second, in applying a preponderance of
the evidence standard; and third, in sustaining the state's objection to a question seeking a
lay opinion.''^ The defendant cannot prevail.
In Item 1 of the defendant's August 29, 2014 motion for augmentation pursuant to
State V. Floyd, the defendant alleged that the state had failed to produce the following:
[CHR], [JHP]'s sister, has publicly stated that she has a copy of a police call
which establishes that "there actually was a police officer at my sister's home
watching her come back to the house and pull into the driveway, and they
called her car a silver Chrysler Pacifica is now entering the driveway and the
garage door is going up and the car is pulling in." Transcript from The Katie
[Couric] Show, 8/19/13 .... On information and belief, the State has never dis
closed the police call to the defense. At trial, the Cheshire police maintained
that the Chrysler Pacifica had already returned to 300 Sorghum Mill Drive
when they arrived there. See e.g. Tr. 9/20/11 at 120-21 ....

Motion, at 8, item 1, D.App. at A338. After hearings on June 6 and July 26, 2016, the trial
court ruled that the defendant had failed to prove that the communication existed.
Consolidated Decision; D.App.(I) at A764. The trial court did not err.
1. Additional facts pertinent to this claim
CHR and WR, CHR's husband, testified at the Floyd hearing that in 2008 she
received an email that depicted a timeline of events, and appeared to be a log of police
communications. T.6/6/16 at 9-12, 35. She received it shortly before January 15, her birth
day. T.6/6/16 at 12, 36. She could not recall if the timeline came as an attachment or in the

body of an email, but stated that she did not know how to open an attachment. Id. at 20.
WR thought that it was a full email with pages of information and that it was not an
attachment. Id. at 39. The email gave the time and description of calls, had many codes,
boxes and lines between them. Id. at 12, 21-22.

At that time, CHR and WR were getting twenty to thirty emails a day about the case
from both friends and strangers. T.6/6/16 at 36, 40-41. CHR thought the email was from her

The defendant moved for review of the trial court decision, by motion dated
September 16, 2016. D.App. at A389. This Court denied the motion, directing the defend
ant to raise the issue on appeal. D.App.(I) at A811.
 brother-in-law WP. but subsequently learned that he had not sent it and had not seen the
information. Id. at 13, 15. WR thought it was from citizens of Cheshire. Id, at 39. Although
CHR acknowledged that upon opening an email, the computer screen and a printed copy of
the email would show the name of the person who sent it, she never saw a name and does
not know who sent the email. Id. at 13, 22; see 39. Whoever sent the email gave no indica
tion as to who he or she might have been or how he or she had come into the supposed
possession of the information. Id. at 40. The email did not bear any logos or anything else
indicating that it originated from CPD or the State's Attorney's office. Id. at 30, 40.
I

CHR testified that:

It stated that the silver Chrysler Pacifica was now approaching the driveway and
then It said the vehicle was entering the driveway and then it said that the gar
age door was going up, and it made some type of reference, and I don't remem
ber the exact verbiage, that people were moving into the house, and I remember
these exact things because my sister's car was gold or called champagne
colored, and 1 remember thinking that's dumb they have the color wrong, she
didn't have a silver car, it was gold, and then I remember thinking I was very
upset to know that the police would've watched her move from the car into the
home and not have stopped them and asked them like to put their hands up right
there, and I have always said, if they had stopped them, this may not have
occurred, and I know they didn't cause it, but they could have stopped it.

T.6/6/16 at 13: see also id. at 20, 37. She was pretty sure that the time noted was 9:30, be
cause she remembers thinking that the police were at the house 40-45 minutes before re
porting the perpetrators leaving the scene. Id. at 28-29. She did not recall a code for the
person who made the observation. Id. at 22. She did not remember saying, in an interview
with Katie Couric, that the garage door went up and the car went into the garage. Id. at 21.
CHR showed the email to her husband, to her parents and to two reporters who
were at her house when the email arrived; she then printed it out and deleted it. Id. at 14-
15, 17, 23-25, 32. WR took the printout to a law/yer and asked him about normal police pro
tocol, but did not leave it with him. Id. at 36-39. CHR last saw the printout In February or
March of 2008 and has not since been able to locate it. Id. at 14-15, 21. The hard drive of
their computer was searched and the deleted file was not found. Id. at 14-15, 25.
 CHR reviewed the Dispatch Log. D.Ex. A (trial), S.Ex. 2 {Floyd hearing). T.6/6/16 at
18. 27. She did not see in the exhibit the call that said that JHP's car was returning to the
house and the garage door was going up. Id. at 19. CHR thought the email she received
looked just like Log. Id. at 30. Some of the information she had seen in the email was in the

exhibit, but some of the original information "seemed to be altered a bit." Id. at 18, 28. The
exhibit was "not clear like they were in the beginning of what I had seen and what I read ori
ginally." Id. at 18. CHR also listened to some recordings of calls sent to her by defendant's
counsel and did not hear a call corresponding to what she had seen in the email. Id. at 19.
At the hearing, defense counsel asked WR:
Q Did it appear to you to be a document that could have been created by
a non-police or like a layperson who was not involved in the response?
[STATE'S ATTORNEY]: Object to that. Your Honor.
A Absolutely not. This is -
[STATE'S ATTORNEY]: Objection.
THE COURT; Well. I'll let - hold on, hold on, hold on. hold on, hold on, hold
on. That just calls for an opinion that there's no foundation that he has some
expertise in this. The objection is sustained.
Next question.

T.6/6/16 at 42-43.

Michael Winters, who had been IT manager at CPD in July of 2007, testified consis
tently with his June 6 testimony about copying communications from the server and creat
ing the Dispatch Log. T.7/26/16 at 8-13. When listening to the communications, he did not
hear, and the Dispatch Log does not document, any communication by or among Cheshire
police officers that some observed the Chrysler Pacifica enter the driveway and the garage
door go up. Id. at 10-12. The Dispatch Log is the only timeline that he created, it is still
stored electronically at the Police Department, and to his knowledge, it has not been
altered. Id. at 12. When he finished the Log, he gave it to his captain, and did not see it
again for nine years. Id. at 16. On cross-examination. Winters acknowledged that there
were three calls pertaining to the incident that did not appear in the Dispatch Log. Id. at
114-16. See Parties' Stipulation, S.App. at A25. In 2007, Cheshire did not have the soft-
vtfare to do a backup, so he made weekly copies of all the .wav files. T.7/26/16 at 10. That
meant that any communication from that day that was not marked and copied as part of the
calls pertaining to the crime would have been copied and saved. Id. at 10-11.
The trial court found:

[T]he only question is whether the call existed in the first place, and I cannot find
on the basis of the evidence presented before me that by a preponderance of
the evidence such a call existed. I think that the most that I have here is what we
in the trade call reasonable suspicion. I agree that [CHR] has no incentive to
fabricate testimony to help Mr. Komisarjevsky, but the question is the reliability
of the substantive information relating to the call.
[CHR] testified that she received an email with a - apparently purported times of
police calls. There was a notation along the lines referred to in paragraph 1 on
page 8; however, [CHR] does not have the email today, she - she apparently
deleted it or - and destroyed a printout. Her husband, [WR], credibly testified that
this was a full email with pages of information, it was not an attachment. He
could not determine who it came from; he thought it might be some citizen of
Cheshire. It was from an individual, not the Town, and he doesn't know where
the individual got the information, and this was in a context where - as we all
know - this was a very, very highly-publicized case. The [HR]'s were getting all
sorts of information from people they didn't know. [WR] credibly testified they
were getting 20 to 30 emails a day.
Under those circumstances, the Court simply cannot find that this is reliable in
formation, and I want to make it clear that I'm not ruling on the admissibility of
evidence. I've allowed this evidence to go to the fact-finder, namely me, and un
der 10-3 of our Code of Evidence, if a writing - if the original of a writing has
been lost or destroyed, its existence can be - can be established by secondary
evidence, and under those circumstances, it is a - a question in terms of - on the
existence of the document or of the phone call that does go to the fact-finder,
namely me, but then I have to determine on the basis of the evidence, the credi
ble evidence submitted to me, whether I can find that the - there's a preponder
ance of the evidence that the call existed, and I simply cannot. I don't know
where the email came from, I don't know if it was from somebody who had made
it up or - or whatever, I just don't know, it's just guesswork, and I can't find facts
on the basis of guess work or speculation.

T.7/26/16 at 34-36.
 2. The trial court did not err in determining that the defendant
did not prove the existence of the call
The defendant claims that the trial court committed three errors when it ruled that the

defendant had failed to establish that a communication existed. DB.111-13. The defendant

cannot prevail.

a. The trial court did not err when it found that the
defendant failed to prove that the call existed
The defendant claims that the trial court erred in concluding that he failed to esta
blish the "authenticity of the call" by a preponderance of the evidence. DB.111-12. The de
fendant claims that he met his burden by 1) the credible testimony of CHR and WR; 2) the
pattern demonstrated by the Cheshire police of withholding communications; and 3) the im
probability that Cote, Nemphos and VIgnola all failed to arrive at the Sorghum Mill house
before the Pacifica returned. DB.111-12. The defendant cannot prevail.
First, as discussed more fully below, the defendant's burden was to establish the
existence of the communication, not its authenticity. Second, the trial court agreed that nei
ther CHR nor WR had a motive to fabricate testimony to help the defendant and that the
Dispatch Log did not include all the pertinent communications that existed. Nonetheless, It
appropriately concluded that neither of those facts proved the existence of the particular
communication in issue. Even assuming the accuracy of CHR and WR's recollection of the
email after nine years, where they did not know who sent the email or composed the chal
lenged entry in the emailed call log, and where the referenced communication was not In
the copied recordings found in 2014, the defendant failed to show that the communication
itself existed. Third, for the reasons set forth in the argument in 1V.C.2, the times in the pro
duced and unproduced communications do not establish that it is probable that those
officers reached the house before Hayes and JHP returned from the bank.
b. The trial court applied the correct burden of proof
Second, the defendant argues that the trial court erred "as a matter of law by
requiring the defendant to prove the call's authenticity by the preponderance-of-the-evi-
dence standard." DB.113. Instead, he argues, a party is required to make only a prinna facie
showing.^^ DB.113. He is incorrect. He confuses the standard for establishing the authenti
city of a document for purposes of admissibility with the standard for proof of a fact.
The defendant makes two arguments in support of a prima facie standard. First, he
argues that, because the Brady materiality standard requires a claimant only to show a rea
sonable probability that, had the evidence been disclosed, the result of the proceeding
would have been different, "[t]here is no tenable reason why his burden to prove its exis
tence should be any more stringent." DB.113 and n.100, citing U.S. v. Bagley, 473 U.S. 667
(1985). In so arguing, the defendant ignores that materiality is the standard for determining
prejudice, that is, a due process violation, based on facts found by the fact-finder. Before
the fact-finder can decide if it is reasonably probable that the defendant was prejudiced by
non-disclosure, it must have determined that the evidence in question in fact existed. The
"materiality" requirement for a Brady violation and the prejudice prong for a finding of inef
fective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 694 (1984) are
the same; Ky/es, 514 U.S. at 434; and the determination of prejudice for both constitutional
violations is based on facts found by a preponderance of the evidence. See Franko v. Com
missioner, 165 Conn. App. 505, 517 (2016) (petitioner must satisfy "burden of proving, by a
preponderance of the evidence that [representation] was deficient under the performance
prong"). See also State v. Thompson, 305 Conn. 412, 425-28 (2012) (hearsay admissible
under exception for procuring absence of witness by wrongdoing on proof of wrongdoing to
a preponderance of evidence; citing cases holding preponderance standard also Is consis-

The defendant made a required prima facie showing when he met his burden to
secure a Floyd hearing. State v. Ortiz, 280 Conn, at 712 n.17 ("the court will not hold a
hearing in the absence of sufficient prima facie evidence, direct or circumstantial, of a
Brady violation unascertainable at trial,"). Having alleged "sufficient prima facie evidence"
that a communication existed that had not been disclosed, he was entitled to a hearing at
which he must satisfy the fact-finder, the trial court, that a Brady violation occurred. The
defendant needed to establish by a preponderance of the evidence to the trial court, as
fact-finder, the existence of the communication alleged in his motion.
tent with the standard used by courts in making other preliminary determinations of fact In
volving a defendant's constitutional rights), cert, denied, 568 U.S. 1146 (2013).
Second, the defendant claims that because the issue before the trial court was whe

ther the call shown in the email was authentic, the rules governing the defendant's burden
to establish authenticity apply, and the defendant need make only a prima facie showing
that the call was authentic. DB.113. To the contrary, the prima facie standard applies to
showing the evidence to be authentic to secure its admission, so as to permit the evidence
to go to the jury "which will ultimately determine its authenticity." State v. Carpenter, 275
Conn, at 856; see also Conn.Code Evid. § 9-1(a). Here, the evidence went to the fact-
finder, the trial court, for the ultimate factual determination of whether the defendant had

shown, by a preponderance of the evidence, that the call existed.

c. The trial court acted well within its broad discretion

when it sustained the state's objection to lay opinion
The defendant claims that the trial court abused its discretion when it sustained the

objection to the question "Did it appear to you to be a document that could have been
created by a non-police or like a layperson who was not involved in the response?" DB.113.
Section 7-1 of the Connecticut Code of Evidence provides; "If a witness is not
testifying as an expert, the witness may not testify in the form of an opinion, un
less the opinion is rationally based on the perception of the witness and is help
ful to a clear understanding of the testimony of the witness or the determination
of a fact in issue." Section 7-1 is based on the traditional rule that witnesses
who did not testify as experts generally were required to limit their testimony to
an account of the facts and, with but a few exceptions, could not state an
opinion or conclusion. ... see also State v. Finan, 275 Conn. 60, 65-66, 881
A.2d 187 (2005) ("[bjecause of the wide range of matters on which lay
witnesses are permitted to give their opinion, the admissibility of such evidence
rests in the sound discretion of the trial court, and the exercise of that dis
cretion, unless abused, will not constitute reversible error" [internal quotation
marks omitted]). Thus, to be admissible, lay opinion testimony must meet two
criteria; It must rationally be based on perception, and it must be helpful....

(Internal citations and quotation marks omitted). First Am. Title Ins. Co. v. 273 Water St.,
LLC, 157 Conn. App. 23. 48-49 (2015).
 The defendant claims that WR's opinion was rationally based and helpful to deter
mining the fact In issue. DB.113-14. The trial court was well within its broad discretion to

conclude that the answer to the question was neither rationally based on perception nor
helpful. There was no dispute that the Dispatch Log, D.Ex. A (trial), S.Ex.2 {Floyd hearingj
was a timeline that had been produced by the IT specialist at CPD and that CHR believed
the timeline included in the email looked like the Dispatch Log. WR's opinion that no lay
person could have produced the email would have required WR to know whether the time
line produced by Winters could have been altered by a person unknown and the defendant
provided no foundation that WR had that knowledge. In addition, whether WR thought that
a lay person could have produced the emailed document was not helpful to the trial court's
determination of whether the call existed, because it would not assist the trial court to

determine who sent the email and who made the entry about the Pacifica in the emailed
timeline. The trial court did not abuse its discretion.

V. THERE IS NO REASONABLE POSSIBILITY THAT THE DEFENDANT WAS

DEPRIVED OF A FAIR TRIAL BY THE PROSECUTION'S PRESENTATION OF
TESTIMONY ABOUT PHOTOGRAPHS FROM THE DEFENDANT'S PHONE

The defendant claims that the state violated his rights to due process under Napue
Illinois, 360 U.S. 264 (1959) and Giglio v. U.S., 405 U.S. 150, 153 (1972) when it failed to
correct false testimony elicited at his trial. He bases this claim on testimony at his trial that
was inconsistent with testimony from the Hayes trial: John Farnham testified in the Hayes
trial that the last of the six photographs seized from the defendant's phone, each showing a
young woman, was of a different young woman who had reached puberty; at the de
fendant's trial, Dr. Wayne Carver testified that MP was eleven and looked it, and John Bru-
netti testified that all six photographs were of the same girl. The defendant cannot prevail
for four reasons: evidence from the Hayes trial should not have been made part of the
record in this case; he has failed to establish the necessary factual predicate of falsity; the
defendant was aware of the inconsistent evidence and elected not to use it; and there is no

reasonable possibility that any falsity affected the outcome of the trial.
 A. Additional Facts Pertinent to this Claim

1. hearing
On November 13, 2015, prior to filing his appellate brief, the defendant filed a "Mo
tion for Augmentation and Rectification of the Record re; Testimony and Exhibit", to add to
the record of the defendant's trial two items from the trial of Steven Hayes; 1) a transcript of
the testimony of John Farnham and 2) Hayes' Exhibit X for ID, which is an unredacted
close-up photograph of a young girl's genitalia found on the defendant's phone after his
arrest. The state objected to a hearing under State y. Floyd, because this was not newly
discovered evidence as required for augmentation of the record under Floyd, and because
the defendant had not made out a prima facie case that testimony from his own trial was
false. See "State's Response To Defendant's Motion For Augmentation And Rectification
Of The Record Re: Testimony And Exhibits" dated November 23, 2015. The trial court
granted the motion after a hearing, and marked the Farnham testimony as D.Ex.A {Floyd
hearing), and the photograph as D.Ex.B {Floyd hearing). On March 4, 2016, the state filed
a motion for review. S.App. at A29. By order dated May 4, 2016, this Court granted the
motion but denied the relief requested. S.App. at A40.
2. Testimony from the Hayes trial
The specific testimony from the Hayes trial that the defendant claims evidences a
Napue/Giglio violation, in context, is as follows; John Farnham testified that, during the in
vestigation of the crimes, he had been employed in the computer crime unit. D.Ex.A {Floyd
hearing); T.9/23/10 at 27. He retrieved text messages from cell phones belonging to Hayes
and the defendant; id. at 28; and described the method by which he did so. Id. at 28-29. He
then read the text messages between Hayes and the defendant to the jury. Id. at 31-33.
The state asked no questions about the retrieval of photos from the defendant's cell phone.
On cross-examination. Hayes' counsel reviewed text messages; Id. at 35-37; the
terms of the search warrants; id. at 36; and elicited that no photographs were found on
Hayes' phone and that eight photos were taken off the defendant's phone. Id. at 37. Hayes'
counsel asked about the software used to retrieve photos and messages. Id. at 39. Hayes'
counsel then elicited the following;

Q Now, from Joshua Komisarjevsky's phone, you testified that you

acquired eight photographs, is that right?
A That's correct. ...

Q Let me show you what's been marked as State's X for identification,

and ask if you recognize them?
A Yes, I recognize them.
Q Okay. And do you recognize them to be the photographs that you
acquired from Joshua Komisarjevsky's phone?
A Yes, I do.

Id. at 39. Hayes' counsel reviewed the witness' expertise, and to the question of whether he
previously had testified about photographs found on electronic equipment, the witness said
"Not so much doing that, no." Id. at 42-43. The witness then affirmed that the photos found
on Komisarjevsky's phone were .jpg; id. at 43; explained how he was able to determine the
dates and times the photographs were taken; id. at 43-44; and described the two photo
graphs Komisarjevsky had taken of his hand on his erect penis. Id. at 44-45. Defense coun
sel then took Farnham through each of the photographs of the young girl and had him de
scribe the photo and the time and date it was taken. Id. at 45-48; see e.g. id. at 45-46
("young female, probably pre-teen, appears to be laying on a bed on her back, she has on
a skirt and a sleeveless shirt, her legs are straight out and her arms appear to be up above
her head and there appears to be some type of cloth over her face"). As to each of the first
five photos, Farnham testified that it appeared to be or was the same young female. Id. at
46-47. As to the sixth photo, D.Ex.B (Floyd hearing), Farnham testified:
It's a different female, apparently older than the first female picture that
was taken, she's appears to be lying on her back, legs are up and spread and
the image is focusing on her private area She is unclothed.
Q When you say it appears to be older, do you have any way actually of
knowing whether the person whose genitals are depicted there is or is not the
same person that was depicted earlier?
 A Based on the size of the person, it doesn't appear to be the same per
son; this person has reached puberty.

Id. at 48. The photographs were not admitted into evidence. The state did not redirect.
3. Testimony from the defendant's trial
Prior to trial, defense counsel sent a letter to the state's attorney listing several wit
nesses, including John Farnham, who had testified at Hayes' trial who had not been named
by the state as prospective witnesses for the defendant's trial; counsel wished to know if
the state intended to call any of them. See D.Ex. J {Floyd hearing), p. 2; letter dated August
25, 2011. The record does not include the state's response.

The specific testimony from the defendant's trial that the defendant claims evidences
a Napue/Giglio violation, in context, is as follows:
Dr. Carver made a statement about MP's age and body in response to the following
questions by the state;
Q Now, starting out, if I may, with the initial external examination, Doctor,
could you tell the jury what you observed with respect to that?
A Well, it was - she was a young adolescent female.
Q Do you know her age and weight? Or if you looked at your report,
would that help you?
A I know her age was 11 years and the body looked it, and at the time of
the autopsy she weighed 124 pounds.

T.9/28/11 at 85. The Doctor commented about MP's hair in the following context:

Q Now, with respect to, you mentioned the so-called rape kit, which is
Exhibit 119. This is a kit that you utilized with respect to [MP], is that correct?
A Yes.

Q And you are the one who seized the samples that are provided for in
that particular kit?

Q And what samples are provided for with respect to that kit?
A The sample of the material that fluoresced on her leg, and then a sam
ple of blood, a sample of hairs, and / don't think she had much more than
head hair, but if she had other hairs, we would have taken them and
labeled them. And then what we call swabs and smears, we take a giant Q-
tip, basically, it's a longer wooden handle and only has cotton on one end,
142
 and that's used to retrieve material from the oral cavity, from the vagina, and
from the rectum, and ... I packaged the stuff and then the other appropriate
professionals do the rest of it [testing for proteins and DNA].

(Emphasis added). T.9/28/11 at 101-02.^^

John Farnham testified that when he was a state trooper, he had worked in the com
puter crime unit at the forensic lab in Meriden. T.9/28/11 at 34. His work included the exam
ination of cell phones. Id. at 34. He had examined, pursuant to a search warrant, the cell
phones belonging to Hayes and to the defendant. Id. at 35. He described his method for
retrieving text messages from the phones and read the texts between the two of them to
the jury. Id. at 35-45. Then the state asked the following questions;
Q In addition to the - this information that you obtained from those two
cell phones, sir, did you also obtain some Jpg picture Images from Mr Komi-
sarjevsky's phone?
A Yes. I did.
Q All right. In total, can you tell the jury how many images there were on
the phone?
A There were eight images that were contained by date and time within
the time frame specified in the search warrant. ...
Q Within that limited time frame and date, there were a total of eight
images, is it fair to say that two pertained to Mr. Komisarjevsky?
A Yeah, there were two images, like a picture taken of himself.
Q And the other six images, is it fair to say that they showed a young
white female on a bed?

T.9/28/11 at 45-46.

Defense counsel cross examined about the programs for removing information from
cell phones: T.9/28/11 at 46-47; whether any text messages had been recovered from the
period after the home invasion; id. at 47-48; and whether he found relevant evidence during

Joy Reho, the forensic science examiner who screened MP's rape kit for the pre
sence of semen or sperm, tested anal, oral and vaginal swabs and smears and a secretion
found on MP's left thigh. T.9/29/11 at 60-61. She did not refer to testing of any hairs taken
from MP's body.
his examination of the defendant's laptop. Id at 48-53. Defense counsel asked no ques
tions respecting the retrieval or evaluation of the photos taken from the cell phone.
John Brunetti testified that, at the time of the investigation, he worked in the multime
dia and image enhancement section of the Forensic Science lab. T.9/28/11 at 55-56. He
reviewed surveillance videos from the Citgo Gas Station in Cheshire, and compared a car
and person seen therein to known photos of the victims' car and of Hayes. Id. at 57-65.
Turning to the .jpg photos taken from the defendant's ceil phone. Brunetti affirmed that two
ofthe eight photographs were ofthe defendant. Id. at 65.'^^ The following ensued;
Q And the other six images are relating to a young white female, is that
correct? ^
A Yes, sir.
Q I would like to show you State's Exhibit 209 for a moment. And 1would
ask you if these are the images you examined at the State Forensic Labora
tory in Meriden, the images, .jpg images retrieved from Mr. Komisarjevsky's
cell phone?
A Yes, they are.
Q Now, in looking at those six individual images, sir, did you come to any
conclusions concerning whether or not all of those images showed the same
person?
A Yes, I did.
Q And can you tell the jury how you came to that conclusion, sir?
A Well, there's six images that I'm looking at, and the last image is more of
an image that's a close-up photograph. So, a lot of the surrounding area that
you see in the previous five images aren't this, but there are some telltale signs
that I found there that led me to the conclusion that it was the same person.
And the last photograph, what's consistent about that photograph, as com
pared to two or three of the other images, is that the person in the last pho
tograph has some type of a cloth over the upper face chest area that proceeds
under the left arm, and the arm's bent back, apparently past the head, and you
could see the cloth going out, and it's consistent on both of those photographs.
In addition, the female that's in that photograph has pretty much a pronounced
chest cavity when she's lying on her back, you could see the bones of her

Defense counsel objected to the admission of the sixth photograph of a young fe

male, S.Ex.209, on the grounds that its prejudicial effect outweighed its probative value.
T.9/28/11 at 54-55. The trial court overruled the objection. Id. at 55.
 chest cavity and they are consistent in both those images also. In addition to
that, the five previous images, the female is wearing either a skirt or some type
of a wrap and the patterning on the cloth is the same as in the last image which
shows that female lying on top of that particular skirt or wrap-type cloth.

T.9/28/11 at 65-67. Brunetti testified that

...[t]he first image was taken at 7:27 in the morning, 23 seconds past the hour.
The second image was taken at 7:51 in the morning, 32 seconds past the hour.
The third image was taken at 7:52 in the morning, 20 seconds past the hour.
The fourth image was taken at 7:52 in the morning and 57 seconds past the
hour. The fifth image was taken at 8:09 and 34 seconds past the hour. And the
last image was taken at 9:14 and 35 seconds past the hour. I

T.9/28/11 at 68. After the state said it had no further questions, the witness then stated:
THE WITNESS: Your Honor, I need to correct something. ... Well, initially I
said those were the images from the cell phone. The last image I blocked out a
portion of that image so that part of it didn't actually come from his cell phone.
Q So, the original image that the jury - we're talking about the last image
in that sequence, the sixth image shown in that sequence, there's a black bar,
and you placed that there for?
A Discretion.

T.9/28/11 at 68-69. The bar covered the genitalia of the girl. The defense counsel cross
examined about the comparison of the pictures from Citgo; id. at 69-70; and elicited that,
with respect to the photos from the cell phone, the job of the witness was to determine if
they were "all the same person" and that they were; id. at 69-70; and that he had been told
that the defendant had told interviewing officers that "he had taken pictures of one of the
victims." Id. at 70. On redirect examination, Brunetti affirmed that "after looking at those pic

tures on the cell phone ... [he came] to the conclusion that those picture were of [MP]." Id.
at 71. Defense counsel asked on recross whether the defendant had said it was MP that he

had taken the pictures of, and the witness answered "[o]n the taped interview that I heard,
yes." Id. at 71. Defense counsel asked no questions about basis of his opinion that the sixth
photograph was of the same person as the first five.
The defendant's appellate counsel testified at the Floyd hearing, that, along with
transcript excerpts and other things related to the Hayes trial, a copy of the unredacted
sixth photo was in the trial files delivered to her post trial, although it was part of general
production from the state and not marked as an identification exhibit from the Hayes trial.
T.2/23/16 at 29, 31-32. Jeremiah Donovan, his trial counsel, stated he attended portions of
the Hayes trial; id. at 75; and ordered and reviewed some transcripts. Id. at 75.
B. Standard Of Review And Pertinent Law

It is a violation of due process for a prosecutor knowingly to procure and use per
jured testimony to obtain a conviction. Mooney v. Holohan, 294 U.S. 103, 112 (1935). "The
same result obtains when the State, although not soliciting false evidence, allows it to go
uncorrected when it appears." Napue v. Illinois, 360 U.S. at 269, citing Alcorta v. Texas,
355 U.S. 28, 31 (1957) (although witness had told prosecutor pretrial that he was paramour
of victim, prosecutor did not correct when witness denied romantic relationship, depriving
defendant of "sudden passion" defense): see also Miller v. Pate, 386 U.S. 1, 7 (1967) (pro
secutor knowingly misrepresented stains on underwear as blood when in fact paint). "[A]
conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and
must be set aside if there is any reasonable likelihood that the false testimony could have
affected the judgment of the jury." (Footnote omitted). U.S. v. Agurs, 427 U.S. at 103. The
Supreme Court created a framework for evaluating testimony about cooperating witness
agreements in Napue and Giglio. Drawing from Napue and Giglio, this Court has stated:
[D]ue process is ... offended if the state, although not soliciting false evidence,
allows it to go uncorrected when it appears. ... Regardless of the lack of
intent to lie on the part of the witness, Giglio and Napue require that the pro
secutor apprise the court when he knows that his witness is giving testimony
that is substantially misleading. ... A new trial is required if the false testimony
could ... in any reasonable likelihood have affected the judgment of the jury.

(Internal citations and quotation marks omitted). State v. Ouellette, 295 Conn. 173, 186
(2010); accord State v. Jordan, 314 Conn. 354, 370-71 (2014). Whether a new trial is called
for "requires a careful review of [the false or misleading] testimony and its probable effect
on the jury, weighed against the strength of the state's case and [other relevant factors]."
Adams v. Commissioner, 309 Conn. 359, 376-73 (2013).
 A claim alleging a prosecutor's knowing use of false or substantially misleading testi
mony presents a mixed question of law and fact; the trial court's factual findings are
reviewed for clear error and its legal conclusions are subject to plenary review. Hafdahl v.
Johnson. 251 F.3d 528, 533 (5th Cir.), cert, denied. 534 U.S. 1047 (2001).
C. The State Acted Properly When It Did Not Correct Brunetti's
Testimony
1. The transcript and the photo from the Hayes trial should
not have been made part of the record
The state contested the propriety of using a Floyd proceeding to add documents
from the Hayes trial to create a record for appeal in this case, and, when the trial court
granted the motion, it filed a motion for review to this Court. S.App. at A29. Although this
Court granted the motion but denied the relief requested, the state may still ask this court to
reconsider that decision. McClintock v. Rivard, 219 Conn. 417, 425-26 (1991) (may give
second review of issues raised in motion for review when plenary review of case on merits
discloses that earlier decision was ill considered); Hous. Auth. of City of Hartford v. Charter
Oak Terrace/Rice Heights Health Ctr., Inc., 82 Conn. App. 18, 23-24 (2004) (reversing
ruling on motion for review; court free to reexamine decision when plenary review of case
on merits discloses that earlier decision was ill considered).

The defendant was not entitled to augmentation of the record under Floyd because
he failed to meet its requirements for two reasons. In State v. Floyd, this Court created a
narrow exception, for due process claims under Brady, to the rule that rectification cannot
be used to add material to the record that was never presented to the trial court. See State
y. Brunetti, 279 Conn. 39, 55 n.27 (2006). cert, denied, 549 U.S. 1212 (2007).
[This Court] will order a Floyd hearing to develop a potential Brady violation
only in "the unusual situation in which a defendant was precluded from per
fecting the record due to new information obtained after judgment." State
V. Hamlin, 90 Conn. App. 445, 453, 878 A.2d 374 (declining defendant's re
quest to remand for Floyd hearing when record demonstrated that "defendant
was aware, prior to both the suppression hearing and trial, that the holding
cell conversation had occurred"), cert, denied, 276 Conn. 914 ... (2005). A
Floyd hearing Is not a license to engage in a posttrial fishing expedition, as
 the court will not hold a hearing in the absence of sufficient prima facie evi
dence, direct or circumstantial, of a Brady violation unascertainable at trial.

(Citations omitted; emphasis added). State v. Ortiz, 280 Conn, at 712 n.17. The defendant
satisfied neither of the two bases for augmenting the record.
First, the defendant did not establish that he was "precluded from perfecting the
record due to new information obtained after judgment" that was "unascertainable at trial."
See Ortiz, 280 Conn, at 712 n.17. The state tried Hayes before it tried the defendant, in the
same courthouse and before the same trial court. The transcripts and trial exhibits were of
public record and trial counsel testified at the Floyd hearing that, in preparation for the de
fendant's trial, he had reviewed transcripts of portions of the Hayes trial, and had attended
portions of the Hayes trial; T.2/23/16 at 75; prior to trial, defense counsel sought to ascer
tain whether Farnham, who had testified at the Hayes trial, would testify at the defendant's
trial; the record shows he used transcripts to cross examine other witnesses regarding in
consistencies; see e.g., T.9/19/11 at 167-68 (inconsistency regarding radio call); T.9/20/11
at 76, 78, 84 (inconsistencies in WP testimony); T.9/28/11 at 119-26 (moving in limine to
exclude testimony about locations of cell towers used by cells phones based on testimony
that had been presented in Hayes trial); and the defendant had a copy of the unredacted!
sixth photo at trial. T.2/23/16 at 31-32. See also Diaz v. Commissioner, 152 Conn. App.
669, 681-82 (upholding trial court denial of Floyd augmentation to add transcript of sentenc
ing of witness where clear that petitioner knew about sentence modification at time of ha
beas court hearing), cert, denied, 314 Conn. 937 (2014), State v. Hamlin, 90 Conn. App. at
453 (declining request to remand for Floyd hearing because record demonstrated that de
fendant aware, prior to suppression hearing and trial, of information he sought to include in
record). In his motion, the defendant argued that under Napue he did not have to establish
that defense counsel did not know of the information at the time of the trial. D.App. (1) at

A767; Motion for Augmentation at 6 n.2. However that principle might apply to the merits
examination of a claim of failure to correct false testimony; see section V.C.3. below; this
Court has never permitted the creation of a record under Floyd in other than the context of
nev/ly discovered evidence and should not have done so here.

Second, for the reasons set forth in the next section, the defendant failed to meet his

burden to establish a prima facie case of a violation - that is, that the testimony of any w^it-
ness w/as false or substantially misleading.
2. If this Court reviews the Hayes documents, the record is
inadequate to demonstrate that any testimony was false or
substantially misleading
The defendant claims that the testimony of Dr. Carver and Brunetti

[s]ent a clear message to the jury that the defendant took the highly inflamma
tory sixth photograph and it was of M.P., who had nothing more than head
hair and who looked her 11 years of age, not 14 to 16 as the defendant stated
in his police statement. [The Hayes exhibits] demonstrate that this message
was, one way or another, false or at the very least extremely misleading and,
thus, a due process violation. Either, as is most likely, the sixth photograph
was of M.P. and she easily could have been 14 to 16 years old and had pubic
hair contrary to Carver's testimony, or the sixth photograph was not of M.P.
contrary to the testimony of Brunetti and [Farnham] at the defendant's trial.

DB.121. To the contrary, the defendant has presented only testimony about inconsistent
opinions of witnesses, and thus "has failed to establish the necessary factual predicate to I

his claim, namely, that the state's attorney did, in fact" fail to correct false testimony. State
V. Satchwefl, 244 Conn. 547, 561 (1998) (failed to establish state in fact promised to dis
miss charges against witness): Flippo v. McBride, 393 Fed. Appx 93, 98 (4th Cir. 2010) (dif
ference of opinion does not show falsity): Lamarca v. State, 931 So. 2d 838, 852 (Fla.
2006) (that witness A testimony at hearing contradicted witness B testimony at trial does
not establish that Witness B testimony was false). At worst, the testimony is a difference of
opinion or inconsistency that "alone do[es] not constitute perjury and do[es] not create an
inference, let alone prove, that the prosecution knowingly presented perjured testimony."
IU.S. V. Stadtmauer, 620 F.3d 238, 269 (3rd Cir. 2010). A reviewing Court must "refuse to
Iimpute knowledge of falsity to the prosecutor where a key government witness' testimony is
in conflict with another's statement or testimony." U.S. v. Mictiael, 17 F.3d 1383, 1385 (11th
Cir. 1994). To consider this claim, this Court would have to conduct improper appellate fact-
finding because it would have to decide which testimony in the two trials was true. State v.
Ovechka, 292 Conn. 533, 547 n.19 (2009). The simple act of marking the evidence as exhi
bits, which is all the defendant asked the trial court to do. does not establish their substan

tive truth.'^ This Court cannot determine that in-court testimony in this case is false or sub
stantially misleading just because appellate counsel found inconsistencies in testimony in
another trial, where the apparent discrepancies could reflect ambiguities that could have
been explained or resolved on further examination, honest difference of opinion, mistake or
intentionally false testimony. State v. Satchwell, 244 Conn, at 562 (function of trial court,
not this court, to resolve disputed factual issues of existence of promise to witness). "In the
Giglio context, the suggestion that a statement may have been false is simply insufficient;
the defendant must conclusively show that the statement was actually false." Maharaj v.
Sec'yDept. ofCorrs., 432 F.3d 1292. 1313 (11th Cir.). cert, denied, 549 U.S. 819 (2005).
I Farnham, in the Hayes trial, and Brunetti, in the defendant's trial, each discussed the
basis of his opinion of whether the sixth photo was of a different person than the other five.
Ferguson State, 101 So. 3d 895, 897 (Fla. Dist. Ct. App. 2012) (argument fails at most
basic level: mere differences in testimony between witnesses on same subject are not
alone sufficient to show perjury), rev. denied, 147 So.3d 522 (2014). Similarly, Carver's tes
timony that MP looked like an eleven-year old was his opinion based on his experience,
and cannot be characterized as false.

The trial court granted the defendant's motion in part because it believed that this
Court may take judicial notice of the Hayes court file. T.1/21/16 at 3. However, although this
Court can take judicial notice of the existence of pleadings in other proceedings, it can no
tice only the fact of the existence of the pleadings, not the truth of the matters contained
therein. State v. Ellis, 224 Conn. 711. 724-25 (1993) (not appropriate to reach factual con
clusions from noticed transcripts); Tait's Handbook of Connecticut Evidence (4th Ed.2008)
§ 2.16.5. Because the Hayes materials are pertinent only if they are true and the testimony
in the defendant's trial is false, taking judicial notice of them serves no purpose.
 To the extent that the defendant relies on an argument that the evidence elicited was
"highly misleading", DB.118; or "extremely misleading," DB.121; he has similarly failed to

establish that the testimony was misleading requiring the prosecution to affirmatively cor
rect it. As set forth above, Brunetti testified about the basis of his conclusions, and the

jurors could evaluate the testimony themselves

Because Brunetti's and Carver's testimony was neither false nor substantially mis

leading, the prosecutor did not have a duty to correct. Thus, the defendant cannot prevail
on this claim for failure to establish the factual predicate for the claim.

3. if the testimony was false, there is no due process violation

because defendant was aware of the information

The impact on a due process claim of defense knowledge of the falsity is an open
question in Connecticut^® and is subject to conflicting authority in other jurisdictions.^® The

This issue is currently pending before this Court in S.C. 20089, Gomez v.
Commissioner; briefing is on-going. See also Greene v. Commissioner, 330 Conn. 1,13
n.9 (2018) (no need to address question of whether prosecutor was obliged to correct testi
mony where had accurately disclosed plea agreement to defense counsel); see also State
V. Jordan, 314 Conn. 354, 369 n.7 (2014) (declining to reach issue, but noting "nothing in
[its] opinion should be construed to suggest that [it] concur[red) in the Appellate Court's
detenninatlon that improprieties occurred.").
A majority of the courts that have addressed the issue have held that "the govern
ment can discharge its responsibility under Napue and Giglio to correct false evidence by
providing defense counsel with the correct information at a time when recall of the prevari
cating witnesses and further exploration of their testimony is still possible." U.S. v. Decker,
543 F.2d 1102, 1105 (5th Cir. 1976), cert, denied, 431 U.S. 906 (1977); accord U.S. v.
Manguai-Garcia, 505 F.3d 1. 10-11 (1st Cir. 2007), cert, denied, 553 U.S. 1019 (2008);
U.S. V. Harris, 498 F.2d 1164, 1170 (3d Cir.) (defendant may not sit idly by in face of ob
vious error and later take advantage of situation which by his inaction has helped create),
cert, denied, 419 U.S. 1069 (1974); U.S. u. Meinster, 619 F.2d 1041, 1045 (4th Cir. 1980):
Beitran v. Cockreii, 294 F.3d 730, 736 (5th Cir. 2002); U.S. v. Crockett, 435 F.3d 1305,
1317-18 (10th Cir. 2006); U.S. v. Stein, 846 F.3d 1135, 1147-50 (11th Cir.) (because Giglio
error is a type of Brady violation, defendant must identify evidence withheld that would have
revealed falsity), cert, denied, 138 S.Ct. 556 (2017); U.S. v. Iverson, 648 F.2d 737, 739
(D.C. Cir. 1981). But see U.S. i/. Foster, 874 F.2d 491, 495 (8th Cir. 1988) ("fact that
defense counsel also was aware of [evidence revealing falsity] is of no consequence" be
cause defendant's failure to "correct the prosecutor's misrepresentation ... did not relieve
the prosecutor of her overriding duty of candor to the court, and to seek justice rather than
(continued...)
151
state posits that, when the prosecutor knows that a defendant knows that evidence may be

false, absent certain extenuating circumstances, it has no duty to correct. Although this
Court need not decide the issue here because of there is inadequate proof and no trial

court finding that the evidence was false or substantially misleading, should the Court dis
agree and conclude that the evidence was false, the state makes the following arguments.
The defendant claimed below that defense knowledge in a Napue/Giglio context is

irrelevant because the due process violation is predicated on the failure to correct, not a
failure to disclose, which is a Sracfy violation. Motion at 6 n.2, D.App. (1) at A767. To the

contrary. Brady, Napue and Giglio all involved information that was not available to the de
fense at trial. See Brady, 373 U.S. at 84; Napue, 360 U.S. at 265; Giglio, 405 U.S. at 153.
The Court in Brady described Napue as an "exten[sion]" of the rule from Mooney v. Holo-
han, about when "nondisclosure by a prosecutor violates due process," and viewed those
decisions as involving application of the same principle. Brady, 373 U.S. at 86-87 (citing
Napue, 360 U.S. at 269); cf. Giglio, 405 U.S. at 153-55; see also State v. Johnson, 57
Conn. App. 156, 161-62 (prosecutor complied with Brady obligation by disclosing informa
tion and did not have "a further duty to present that information to the trier of fact when the
defendant failed to offer the evidence to the jury"), cert, denied, 253 Conn. 912 (2000); cf.
State V. Tomas D., 296 Conn. 476, 509-10 (2010) (state had no obligation to call witness
where defendant aware of potential testimony and could have taken action to procure it).
The defendant is correct that a Napue/Giglio due process violation may occur in two
limited circumstances, notwithstanding the defense knowledge of the conflicting evidence.
The first situation exists where the defendant is unable, through no fault of his own, to
make use of the information to cast doubt upon contrary evidence that enters the case.

(...continued)
convictions"): U.S. v. LaPage, 231 F.3d 488, 492 (9th Cir. 2000) ("government's duty to cor
rect perjury by its witnesses is not discharged merely because defense counsel knows, and
the jury may figure out, that the testimony is false").
 See, e.g., U.S. v. Iverson, 648 F.2d 737, 738 & n.5 (D.C.Cir. 1980); accord Ross v. Heyne,
638 F.2d 979, 986 (7th Cir. 1980) (defense counsel, unbeknownst to defendant, failed to
correct false testimony because of conflict of interest): U.S. v. Sanfilippo, 564 F.2d 176, 177
(5th Cir. 1977) (prosecutor stood silent as defense attorney futilely attempted to elicit terms
of prosecution's promise to dismiss). The defendant does not claim that his attorneys were
unable, through no fault of their own, to make use of the information from the Hayes trial.
In the second situation, the prosecutor exacerbates or exploits false or misleading
testimony, typically by muddying the waters on redirect examination, or by using the evi
dence to the state's favor in closing argument. See Gaskin v. Commissioner, 183 Conn.
App. 496, 546-54 (2018) (prosecutor exploited false testimony); Jenkins v. Artuz, 294 F.3d
284, 291-94 (2d Cir. 2002). Here, according to the defendant, the prosecutor exploited the
purportedly false testimony in both ways. First, he claims that the state "reinforced the de
ceptions by posing misleading questions."^^ DB.121. But the defendant fails to explain how
the questions were misleading or designed to elicit or reinforce false testimony. Nothing in
the way the questions were asked precluded the defendant from challenging on cross
examination or through his own witnesses the identity of the young female in the sixth pho
to or the sexual maturity of the person depicted there. The defendant also claims that the
I

state exploited the purportedly false statements in closing argument. DB.121 n.110, citing
T.10/11/11 at 26-27, 122. The defendant merely cites to those pages and does not identify

The defendant cites, in a footnote, the following; "See, e.g., Tr. 9/28/11 at 66-67
(prosecution asks Brunetti if, "in looking at those six individual images, sir, did you come to
any conclusions concerning whether or not all of those images showed the same person?";
Brunetti responds in the affirmative); id. at 46 (prosecution asks Farnham if it is "fair to say
that" all six photographs "showed a young white female on a bed?" Farnham responds in
the affinnative); id. at 85 (prosecution asks Carver if he knows M.P.'s age and Carver
responds: "I know her age was 11 years and her body looked like it..."). DB.121 n.109.
purportedly offending language or argue how it exploits the clainned false evidence. Thus,
this portion ofthe claim is inadequately briefed.^® State v. T.R.D., 286 Conn, at 214 n.18.
The state submits that, at least outside the context of incentives for a witness to tes
tify for the state, where defense counsel knows of information that testimony is arguably
false and opts not to cross examine or present independent evidence on the topic, whether
defense counsel had a reasonable strategic basis to forgo the subject must be addressed
in collateral proceedings. To find a violation of due process In this context, this Court would,
in essence, have to conduct habeas review on direct appeal. See U.S. v. Mangual-Garcia,
505 F.3d 1, 10-11 (1st CIr. 2007) (when defendant knows about false testimony and fails to
bring it to jury attention, assumption is that did so for strategic reasons, and defendant will
not be allowed to question his own strategic choices on appeal), cert, denied, 553 U.S.
1019 (2008). Trial counsel here may have had sound strategic reasons for not referring to,
Farnham's opinion stated in the Hayes trial that the sixth photo was of an older female.
Indeed, counsel used Brunetti's opinion that all the photos were of WP to corroborate the
credibility of the defendant's statement. See T.9/28/11 at 69-70, 71. In that event, an
appellant cannot "create a reviewable claim because his appellate counsel disagrees with
the strategy of his trial counsel." (Internal quotation marks omitted.) State v. Reynolds, 264
Conn, at 207. Accordingly, any claim addressing trial strategies can only be addressed in
collateral proceedings. State v. Gonzalez, 205 Conn. 673, 684 (1987).
4. There is no reasonable likelihood that any false testimony
affected the judgment of the jury
There is no reasonable likelihood that any false or misleading testimony affected the
jury verdict in this case.

When ... a prosecutor obtains a conviction with evidence that he or she knows
or should know to be false, the materiality standard is significantly more
favorable to the defendant. ... This "strict standard of materiality" is appropriate

Nonetheless, no statements in those pages capitalize on the difference in appear

ance of a child who has reached puberty and one who has not.
 in [false testimony] cases "not just because they involve prosecutorial miscon
duct, but more importantly because they involve a corruption of the truth-seek
ing function of the trial process." United States v. Agurs, [427 U.S. 97,] 104 ....
In light of this corrupting effect, and because the state's use of false testimony
is fundamentally unfair, prejudice sufficient to satisfy the materiality standard is
readily shown ... such that "reversal is virtually automatic"..., unless the state's
case is "so overwhelming that there is no reasonable likelihood that the false
testimony could have affected the judgment of the jury."...

(Internal citations and quotation marks omitted). Adams v. Commissioner, 309 Conn, at
372-72. Such analysis requires a careful review of that testimony and its probable effect on
the jury, weighed against the strength of the state's case. Adams, 309 Conn, at 373.
Assuming arguendo that Brunetti's and Carver's testimony was false or substantially
misleading and that the prosecutor failed to correct it, there is no reasonable likelihood that
such testimony affected the judgment of the jury. The defendant claims that the false testi
mony "substantially undermined the credibility of the defendant's statement to the police,
both specifically with respect to his assertions that he did not anally rape MP and that he
believed her to be fourteen to sixteen years old, [T.9/21/11 at 185;] and more generally with
respect to his assertions that he did not Intend that anyone be killed and that he did not
pour any gasoline at the scene." DB.121-22. The defendant further claims that the sixth
photo was more inflammatory due to the state's assertion that "it depicted an 11-year-old
child." DB.122. Several reasons compel this Court to reject his claims.
First, the evidence against the defendant was overwhelming, including his apprehen
sion fleeing from the scene of a burning home containing three dead women; his DNA in
MP's rectum; video surveillance capturing the defendant's conspirator purchasing gasoline;
and the defendant's confession to kidnapping, burglary, assault, and sexual assault by cun-
nilingus. As argued above in Issue IV, the state cited as evidence of the defendant's intent
his motive for destroying DNA evidence of his sexual assault of MP; that the absence of
WP's blood and of gas on the gloves supported a finding that the defendant had washed
his gloved hands; that the time frames from Hayes strangling JHP to the defendant and
Hayes fleeing the house meant that there "is absolutely no way" that Hayes alone poured
the gasoline throughout the house; and things the defendant himself confessed (he untied
and retied both girls, he stood guard while Hayes went to the bank and gave Hayes direc
tions back, he did nothing to help the women while the gas was being poured).
Second, at trial, the defendant, in light of his police statement, contested only whe
ther he had killed or intended to kill anyone, including whether he had poured any gasoline,
and whether he had anally raped MP rather than performed cunnifingus and masturbation.
The defendant is unclear whether he believes the truth to be that MP had reached puberty

or that the sixth photo was of a different female (who, because the photo was taken at 9:15,
could only have been HP). Evidence permitting the jury to infer that the defendant took
highly sexualized photos of HP in addition to MP would have been extremely prejudicial to
the defendant and undercut the credibility of his statement.

Third, the state argued that the defendant's statement that he believed MP was four
teen to sixteen years old was not credible because if he had talked to MP about school and
summer plans, he would have discovered that she had just graduated from fifth grade. The
state did not base its argument on the sexual maturity of MP's genitalia. In any event, any
belief that she was fourteen to sixteen years old is no defense to a charge of rape, whether
anal or oral, so whether the jury credited his belief could not have altered the outcome of
the trial on that charge. It is certainly not inconsistent with murder. Similarly, where the
defendant argues that evidence that MP had reached puberty supported his statement that
he believed she was fourteen to sixteen years old, that evidence would have also permitted
the jury to infer that he had determined that sexual conduct was permissible because he
had undressed her to examine her genitalia and reach conclusions about her age.
Fourth, the challenged testimony does not directly relate to the impeachment of a
key witness, unlike those cases where the false testimony relates to the motive of the wit
ness to testify favorably to the state.

Fifth, in his unrecorded statement to the police, the defendant asserted that he had
taken the pictures, planning to send them to Hayes to show to JHP if she refused to coope-
rate at the bank. T9/26/11 at 57, 63, 65. Had the state directed attention to the apparent
sexual nnaturity of the person depicted in the sixth photo and the possibility that it was of
HP, not MP, this would have enhanced the extortionate purpose of his taking the photos.
Sixth, the testimony of Farnham, Carver and Brunetti on this subject was simply
descriptive: to the extent that Brunetti offered an opinion about the identity of the person in
the sixth photo, he laid out in detail the basis of his opinion and the jury could, with him,
look at the patterns in the described skirt and sheet and reach their own conclusions.
Seventh, the defendant objected to the sixth photo because a close-up photo of a
child's genitalia was inflammatory, not because the bar hid the sexual maturity of the young
woman's genitalia. Certainly the unredacted close-up photo of a young person's genitalia
would have inflamed the jury more than one with a bar over it. Defense counsel had the un
redacted photo; T.2/23/16 at 31-32; and if defense counsel thought that whether MP had
pubic hair or whether the photo was of a different young woman was important to his de
fense, nothing prevented him from offering the unredacted photo into evidence.
Finally, the jury determination of whether the defendant truthfully denied that he
killed or intended that anyone be killed depended on the jury's evaluation and drawing of
;inferences from a wide variety of evidence proffered at a multi-week trial, and this "false"
evidence of MP's sexual immaturity could have had minimal effect on that evaluation.
In conclusion, under the circumstances of this case, the defendant had all of the
information he needed to recognize, and seek to confront and/or clarify, any arguably false
or misleading testimony that was given. The playing field was level and balanced, counsel
elected not to make full use of the disclosed information, and there can be no due process

violation justifying a new trial.

VI. THE DEFENDANT CANNOT PREVAIL ON HIS CLAIM THAT GENERAL

STATUTES § 18-10b CANNOT BE APPLIED TO HIM

The defendant claims that stringent conditions of confinement set forth in General
Statutes § 18-1Ob "violated ex post facto, equal protection of the law, the Eighth Amend
ment and substantive and procedural due process." DB.123. This Court resolved this issue
157
in State v. Campbell, 328 Conn, at 461. Tliere, the defendant argued that his challenges to
the validity of his death sentences were not rendered moot by the invalidation of the death
penalty in State v. Santiago, 318 Conn. 1 (2015), because "General Statutes § 18-10b,
which governs the placement of those convicted of capital felony or murder with special cir
cumstances, may require that he be housed in administrative segregation, which he con
tends constitutes an enhanced punishment." Campbell, 328 Conn, at 461. This Court held
that the issue was not ripe for review for several reasons, some of which apply here.
If the commissioner [of correction] so determines [that § 18-1 Ob applies to the
defendant], then it is unclear to what extent the requirements of § 18-1Ob
would result in different conditions of confinement for the defendant. ... The
commissioner enjoys broad discretion in assigning classifications to inmates.
... Consistent with that broad level of discretion, the statute appears to con- i
template a highly individualized assessment before an inmate is reclassified.
It is uncertain at this time, therefore, what the defendant's eventual conditions
of confinement will be.

Additionally, there have been no factual findings as to what procedures and

rules would otherwise apply to the defendant, findings that would be neces
sary to determine whether he has been or could be prejudiced by his prior
death sentence. ... There is no evidence in the record regarding any proce
dures followed by the Department of Correction in classifying inmates for pur
poses of determining the appropriate conditions of confinement.
It is well established that the proper vehicle by which a defendant may chal
lenge his conditions of confinement is a petition for a writ of habeas corpus.
... The present case illustrates perfectly why a habeas petition is the proper
vehicle. In the habeas court, the defendant will have the opportunity to pre
sent any and all evidence that is relevant to his claim. That court is empow
ered to make factual findings on that evidence. This court is not.

(Internal citations omitted.) State v. Campbell, 328 Conn, at 464-66.

For all of the foregoing reasons, this Court should not consider this claim as it is not
yet ripe.
CONCLUSION

For all of the foregoing reasons, the State of Connecticut-Appellee asks this Court to
affirm the trial court's judgments of conviction.
 Respectfully submitted,

STATE OF CONNECTICUT

MARJQRIEALLEN DAUSTER
SenioW\ssistant State's Attorney
Office of the Chief State's Attorney
Appellate Bureau
300 Corporate Place
Rocky Hill. CT 06067
Tel. (860) 258-5807
Fax (860) 258-5828
Juris No. 402418
Marjorie.Dauster@ctgov
DCJ.OCSA.Appellate@ct.gov

PATRICK J. GRIFFIN
State's Attorney
Judicial District of New Haven

MICHAEL DEARINGTON
Former State's Attorney
Judicial District of New Haven

GARY NICHOLSON
Former Senior State's Attorney
Judicial District of New Haven

ROBERT SCHEINBLUM
Senior Assistant State's Attorney
Office of the Chief State's Attorney
Appellate Bureau

LEONARD C. BOYLE
Former Deputy Chief State's Attorney
Office of the Chief State's Attorney

November, 2018
 CERTIFICATION

The undersigned attorney hereby certifies, pursuant to Connecticut Rule of Appellate

Procedure § 67-2, that

(1) the electronically submitted brief and appendix has been delivered electronically
to the last known e-mail address of each counsel of record for whom an e-mail address has

been provided; and

(2) the electronically submitted brief and appendix and the filed paper brief and
appendix have been redacted or do not contain any names or other personal identifying
information that is prohibited from disclosure by rule, statute, court order or case law; and
(3) a copy of the brief and appendix has been sent to each counsel of record and to
any trial judge who rendered a decision that is the subject matter of the appeal, in com
pliance with Section 62-7; and

(4) the brief and appendix being filed with the appellate clerk are true copies of the
brief and appendix that were submitted electronically: and
(5) the brief complies with all provisions of this rule.

MAr4^RIE ALLEN DAUSTER

Senior Assistant State's Attorney