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State v. Patel

Court of Appeals of Connecticut

November 12, 2019

STATE OF CONNECTICUT
v.
HIRAL M. PATEL

          Argued May 14, 2019

         Procedural History

         Substitute information charging the defendant with the crimes of felony murder, murder, home invasion, burglary in the first degree as an accessory, robbery in the first degree as an accessory, conspiracy to commit robbery in the first degree, conspiracy to commit burglary in the first degree and tampering with physical evidence, brought to the Superior Court in the judicial district of Litchfield and tried to the jury before Danaher, J.; thereafter, the court denied the defendant's motions to preclude certain evidence; verdict of guilty; subsequently, the court denied the defendant's motion for a new trial and granted the defendant's motion to vacate the verdict as to the charge of felony murder; thereafter, the court vacated the verdict as to the charge of conspiracy to commit robbery in the first degree; judgment of guilty of murder, home invasion, burglary in the first degree as an accessory, robbery in the first degree as an accessory, conspiracy to commit burglary in the first degree and tampering with physical evidence, from which the defendant appealed. Affirmed.

          Richard Emanuel, for the appellant (defendant).

          Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Dawn Gallo, supervisory assistant state's attorney, for the appellee (state).

          Alvord, Bright and Bear, Js.

          OPINION

          ALVORD, J.

         The defendant, Hiral M. Patel, appeals from the judgment of conviction of murder in violation of General Statutes § 53a-54a, home invasion in violation of General Statutes § 53a-100aa (a) (1), burglary in the first degree as an accessory in violation of General Statutes §§ 53a-101 (a) (1) and 53a-8 (a), robbery in the first degree as an accessory in violation of General Statutes §§ 53a-134 (a) (2) and 53a-8 (a), conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (1) and 53a-48, and tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1).[1] On appeal, the defendant claims that (1) the court erred in admitting into evidence dual inculpatory statements of his coconspirator, Michael Calabrese; (2) the court erred in precluding the defendant from introducing into evidence a statement of Shyam Patel (Shyam), a cousin of the defendant, that was against his penal interest; (3) the court erred in admitting historical cell site location information without conducting a Porter[2] hearing; and (4) there was insufficient evidence adduced at trial to sustain his conviction of murder on a theory of Pinkerton[3] liability. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. On June 12, 2012, police arrested Niraj Patel (Niraj), the defendant's cousin, after a motor vehicle stop and seized $12, 575 from his person and his vehicle. He was charged with criminal attempt to possess more than four ounces of marijuana, interfering with an officer, tampering with evidence, possession of drug paraphernalia, and motor vehicle charges. Following his arrest, Niraj unsuccessfully attempted to borrow money from family members to pay his attorney.

         Niraj thereafter formed a plan to rob Luke Vitalis, a marijuana dealer with whom Niraj had conducted drug transactions. Vitalis lived with his mother, Rita G. Vitalis, at 399 Cornwall Bridge Road in Sharon. On August 3, 2012, Niraj sent a text message to the defendant, stating: ‘‘I throw you some dough to do this if you have to bring Diva, '' who was the defendant's family dog. The defendant responded by stating: ‘‘You fig a ride out.'' Niraj responded: ‘‘Yes.'' The defendant replied: ‘‘Word.'' Niraj also offered Calabrese, a friend, money to participate in the robbery.

         Niraj knew that Vitalis had sold ten pounds of marijuana from his home on August 5, 2012, and set up a transaction with Vitalis for the following day, with the intention of robbing Vitalis of his proceeds of the previous sale. On August 6, 2012, Niraj drove Calabrese and the defendant to the area of Vitalis' home and dropped them off down the road. Calabrese and the defendant ran through the woods to Vitalis' home. They watched the home and saw Vitalis' mother come home.

         At approximately 6 p.m., Calabrese and the defendant, wearing masks, bandanas, black hats, and gloves, entered the home, encountered Vitalis' mother, and restrained her using zip ties. Calabrese, armed with a Ruger handgun that he received from Niraj, went upstairs and encountered Vitalis in his bedroom. He struck Vitalis with the handgun and shot him three times, killing him. Calabrese searched the bedroom but could find only Vitalis' wallet with $70 and approximately one-half ounce of marijuana, both of which he took. Calabrese and the defendant ran from the property into the woods, where the defendant lost his cell phone. Calabrese and the defendant eventually met up with Niraj, who was driving around looking for them. Calabrese burned his clothing and sneakers on the side of Wolfe Road in Warren.[4]

         After freeing herself, Vitalis' mother called 911. State police troopers arrived at the scene at approximately 6:14 p.m. and found Vitalis deceased. Some of the drawers in the furniture in Vitalis' bedroom were pulled out. The police searched the bedroom and found $32, 150. They also found marijuana plants growing in the home and outside, 1.7 pounds of marijuana inside Vitalis' bedroom closet, and evidence of marijuana sales.

         The defendant's parents, who were traveling out of state on the day of the crime, owned a package store in Madison. While the defendant's parents were away, the defendant was supposed to assist the store's employee, James Smith, and provide him with a ride home at night. On the afternoon of the day of the crime, Smith called the defendant to ask him to pick up single dollar bills for the store, but could not get in touch with him. The defendant's parents also could not reach him and, eventually, they called a family member, Sachin Patel (Sachin). Sachin left his job at 6:30 p.m. and arrived at the store at about 7 p.m. After Sachin could not reach the defendant on his cell phone, Sachin went to the defendant's house in Branford, let the dog out, and continued to call the defendant from the house phone. Sachin left the defendant's house at about 8:30 p.m. and returned to the store to give Smith a ride home.

         On September 11, 2013, the defendant was arrested. Following a trial, the jury, on February 1, 2017, returned a guilty verdict on all counts. The court, thereafter, rendered judgment in accordance with the jury's verdict. See footnote 1 of this opinion. The court imposed a total effective sentence of forty-five years of imprisonment, execution suspended after thirty-five years and one day, twenty-five years of which were the mandatory minimum, with five years of probation. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that the court erred in admitting into evidence ‘‘dual inculpatory statements'' made by Calabrese. First, he contends as a threshold matter that the state failed to prove Calabrese's unavailability because Calabrese was not under oath when he invoked his fifth amendment privilege. Next, he claims that Calabrese's statements made to a jailhouse informant, Wayne Early, were testimonial, and that the introduction into evidence of the recording of those statements violated his federal and state confrontation and due process rights. He further contends that the recording and the testimony of Britney Colwell, Calabrese's girlfriend at the time of the crime, regarding statements Calabrese made to her, also were inadmissible pursuant to § 8-6 (4) of the Connecticut Code of Evidence. We consider each of these claims in turn.

         A

         As a threshold matter, the defendant contends that ‘‘the court erred in finding that Calabrese was ‘unavailable' because Calabrese was not under oath when questioned about his fifth amendment privilege.'' The defendant acknowledges that his claim is unpreserved but nevertheless seeks review pursuant to the bypass doctrine set forth by our Supreme Court in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), or reversal pursuant to the plain error doctrine.[5] The state argues that the defendant's argument is meritless, emphasizing the defendant's ‘‘fail[-ure] to cite a single case that holds that a trial court's finding of ‘unavailability' must be based on the sworn testimony of the purportedly unavailable witness.''[6] We agree with the state that the court did not err in finding Calabrese to be unavailable and, therefore, the defendant has not shown the existence of a constitutional violation or met the stringent standard for relief pursuant to the plain error doctrine.[7]

         The following additional procedural history is relevant. On the morning of January 4, 2017, the court stated that defense counsel wanted a ‘‘record to be made as to whether . . . Calabrese would be willing to testify if he were called by either party in this case or if, alternatively, he would seek to invoke his rights under the fifth amendment.'' Defense counsel represented his understanding ‘‘that the state does not intend to call this gentleman based on their understanding that he's going to invoke his fifth amendment privilege. It is my position that, if that's to be done, it should be done by the witness himself . . . on the record in court; his lawyer can't do it for him.'' Calabrese was present in court with his counsel, Attorney Gerald Giaimo. Responding to the court's inquiry, Calabrese stated that he had the opportunity to talk with Attorney Giaimo about the proceeding. In response to the court's question concerning whether he would answer questions if he were called as a witness in the defendant's case, he stated that he ‘‘would plead the fifth.'' In response to the court's follow-up questions, Calabrese confirmed that he planned to invoke his rights under the fifth amendment. The court inquired of the parties whether there was ‘‘any question in the mind of either party as to whether this is a valid invocation of the fifth amendment privilege, '' and defense counsel responded that he had ‘‘no question about that'' but requested ‘‘a follow-up question in terms of whether or not he would intend to invoke his fifth amendment rights with respect to every question he might be asked, not just generally.'' Defense counsel asked to inquire, and the state objected. The court indicated that it did not think it was necessary for defense counsel to inquire. Defense counsel stated that he wanted to know whether Calabrese's invocation of the fifth amendment ‘‘applie[d] to every question that is asked of him relevant to this case.'' The court then asked Calabrese: ‘‘[i]f you were to be asked questions about the facts of this case by either party, what position would you take?'' Calabrese stated that he would ‘‘take the fifth.'' The court then asked: ‘‘Anything further?'' Defense counsel responded: ‘‘Nothing from me.''

         The court found that Calabrese had made a valid invocation of his fifth amendment privilege, stating that it believed that if ‘‘Calabrese were to answer any questions relative to the facts of this case, they could have a tendency to incriminate him.'' The court again asked whether there was ‘‘[a]nything further from either party, '' to which defense counsel responded, ‘‘[n]othing further.''

         ‘‘Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.'' (Emphasis in original; internal quotation marks omitted.) State v. Walker, 332 Conn. 678, 688, 212 A.3d 1244 (2019). We conclude that the defendant's claim is reviewable under the first and second prongs of Golding. Accordingly, we turn to the third prong of Golding-namely, whether the defendant has established a violation of his sixth amendment confrontation rights.

         In support of his claim that his sixth amendment right to confrontation was violated, the defendant cites State v. Cecarelli, 32 Conn.App. 811, 821, 631 A.2d 862 (1993). In Cecarelli, the trial court accepted the representation made by counsel for a witness that the witness would invoke his fifth amendment privilege regardless of the question he was asked. Id., 817. The witness did not appear in court, and the court denied the defendant's request for a hearing to determine whether a valid privilege properly was claimed as to questions concerning the scope and extent of the witness' actions as a police informant. Id., 817-18. On appeal, this court concluded that the trial court's failure to hold a hearing implicated the defendant's constitutional right to present a defense. Id., 821. Noting that ‘‘a question-by-question invocation of the privilege against selfincrimi-nation may not be required under all circumstances, '' this court concluded that the sustaining of a blanket privilege claim was not appropriate given the circumstances before the trial court, and that a hearing was required. Id., 820.

         Cecarelli is distinguishable from the present case in that the defendant in Cecarelli challenged the witness' assertion of his constitutional privilege on the ground that it might not pertain to all of the questions the defendant sought to ask regarding his entrapment defense. Specifically, this court reasoned: ‘‘We cannot speculate that the defendant's entrapment defense may be inextricably bound up with a scheme of criminality on the part of [the witness] and that all questions asked of [the witness] to corroborate that defense might require answers tending to incriminate him. That determination may be reached only at a hearing for that purpose, which would allow the trial court to explore the basis, if any, of the witness' refusal to testify, if he does, in fact, invoke his privilege.'' Id., 821. Here, the defendant makes no claim that Calabrese's constitutional privilege might not have pertained to all of the questions that would have been asked of him.

         On point with this case is State v. Nieves, 89 Conn.App. 410, 417, 873 A.2d 1066, cert. denied, 275 Conn. 906, 882 A.2d 679 (2005). In Nieves, this court rejected the defendant's claim ‘‘that the [trial] court violated his sixth amendment right to present a defense simply by failing to hold a hearing, requiring [the witness] to take the stand and personally to invoke his fifth amendment privilege.'' Id. In Nieves, the court permitted the witness' counsel to represent that his client would invoke his fifth amendment privilege against self-incrimination as to all questions. Id., 416-17. The defendant did not request a hearing but moved to compel the witness to testify. Id., 416. On appeal, this court noted that ‘‘there is no claim that [the witness] might have answered some relevant questions that would go to the defendant's defense''; id., 418-19; and found the defendant's argument premised solely on the fact that the witness personally did not invoke the privilege at a hearing unavailing. Id., 420-21.

         The defendant's sole challenge to the court's unavailability finding is that Calabrese had not been administered an oath prior to his testimony, during a hearing before the court, that he would assert his fifth amendment privilege not to testify. The defendant does not contend that Calabrese would have answered some questions or that the court's inquiry of Calabrese as to his personal invocation of the privilege was deficient in substance. We cannot conclude that the court's failure to have Calabrese sworn in violated the defendant's sixth amendment right to confrontation or constituted plain error. Accordingly, the court did not err in finding Calabrese to be unavailable.

         B

         Having concluded that the court did not err in finding Calabrese to be unavailable, we now consider the defendant's claim that the court improperly admitted into evidence Calabrese's statements to Colwell and Early.

         The following additional facts and procedural history are relevant. In statements made to Colwell on the day of Vitalis' killing, Calabrese admitted his participation in the robbery. Subsequently, in September, 2013, Calabrese detailed the events surrounding Vitalis' killing, implicating himself, Niraj, and the defendant, in a recorded statement to a confidential inmate informant.

         Our analysis of this issue requires discussion of filings in Niraj's trial on charges stemming from the same incident.[8] In Niraj's trial, he filed a motion in limine seeking to preclude the state from introducing into evidence out-of-court statements made by Calabrese in lieu of his live testimony, contending that the admission of his statements would violate the fourth, fifth, sixth and fourteenth amendments to the United States constitution, article first, §§ 8, 9 and 10 of the Connecticut constitution, and Practice Book § 42-15. See State v. Patel, 186 Conn.App. 814, 831, 201 A.3d 459, cert. denied, 331 Conn. 906, 203 A.3d 569 (2019). On December 31, 2015, the court issued a ruling denying Niraj's motion without prejudice.

         Addressing Calabrese's statements to Early, the court noted the passage of time, thirteen months, as a factor weighing against the trustworthiness of the statements. The court further considered that Calabrese's statements ‘‘were made to a fellow inmate who appeared to the defendant to be a fellow gang member, and one who was facing serious charges.'' The court found that the statements were ‘‘replete with specific details of the crime, '' and stated that inconsistencies identified by the defendant were not as significant as they appear and ‘‘pale[d] in comparison to the myriad details of the crime that could only be known to a participant in the crime.'' Considering the extent to which the statements were against Calabrese's penal interest, the court noted that Calabrese explicitly stated that he killed Vitalis and ‘‘ma[de] clear that any other person involved is less culpable than he is.'' The court also considered that Calabrese had initiated the discussion about the crime on September 3, 2015, and that Calabrese had made statements to Colwell that were consistent with his statements to Early. Last, the court stated that the state offered cell phone location evidence linking Calabrese to the crime. The court concluded that Calabrese's statements to Early were admissible as statements against penal interest pursuant to § 8-6 (4) of the Connecticut Code of Evidence. The court further concluded that Calabrese's statements to Early were not testimonial.

         Regarding Calabrese's statements to Colwell, the court found that the statements constituted declarations against penal interest pursuant to § 8-6 (4), in that the ‘‘statements were made to a confidante; they were made just before, on the day of, and the day after, the homicide. Their trustworthiness lies in not only the foregoing facts, but in their consistency with other physical evidence in the case, including the time of the statements relative to the event; the specific admissions of theft that were consistent with other evidence relative to the theft and the statements regarding clothing that were consistent with the declarant's efforts to destroy clothing that might carry evidence of the crime.''

         In the trial underlying this appeal, on August 3, 2016, the defendant filed a similar motion in limine seeking to preclude the state from offering into evidence Calabrese's out-of-court statements. In his memorandum of law in support of his motion, the defendant recognized that the issue had been considered and ruled on by the court in connection with Niraj's trial. On November 8, 2016, the court, at the request of defense counsel and without objection from the state, took judicial notice of the totality of the filings and the transcripts in Niraj's trial. Later that day, the court noted that, in Niraj's trial, it had ruled on a motion in limine regarding Calabrese's statements and asked whether ‘‘there are any changes in the law since that ruling that require a different result and, alternatively, whether there are any factual developments that you wish to bring to my attention that might bring about a different result.'' Defense counsel responded, ‘‘[n]o, as to both, Your Honor.'' The court indicated that ‘‘it would appear that the law of the case would control, ''[9] and the state agreed. The court asked defense counsel whether he had anything further, and defense counsel replied: ‘‘No, I just want to make-I think we agree that in the event that this has to-this case has to go beyond as proceeding subsequent to the verdict, that Your Honor is relying-and [the] defendant will have available the record of the Niraj Patel file- trial . . . with respect to the arguments and the submissions.'' The state had no objection to that request. The court then stated: ‘‘Well, the law of the case is not absolute, but under the circumstances expressed by the defense in the motion and the responses to my questions today, I find that the law of the case controls that the ruling of December 31, 2015, will control this motion as well, and the motion is denied for the reasons set forth in that opinion.''

         On January 6, 2017, the state called Early as a witness. Early, who remained incarcerated at the time of the defendant's trial, testified that while incarcerated at the New Haven Correctional Center, he was called to the intelligence office, informed that Calabrese was going to be moved into Early's cell, and asked whether he would be willing to wear a recording device to record Calabrese.[10] Early, who previously had made confidential recordings of other inmates, indicated he would be willing to do so, and Calabrese was moved into his cell that evening. Later that evening, the two discussed the crimes for which they were incarcerated. Early stopped the conversation, however, because he knew he was going to wear a recording device and did not want to repeat the same conversation the next day. The next day, Early again was called to the intelligence office and asked whether he ‘‘ ‘could do it,' '' and Early responded that he could. The intelligence officer then placed a telephone call to the state police, in which Early was asked what he knew about the case. Early responded that he did not know anything about it, and the state police asked Early to get as many details as possible. The intelligence officer then placed the recording device in Early's shirt pocket.

         Early went back to his cell block recreation area, a lock down was called, and he went back to his cell with Calabrese. The two engaged in a lengthy conversation, in which Calabrese detailed the events surrounding Vitalis' killing, implicating himself, Niraj, and the defendant. Over the defendant's objection, the recording was played for the jury during trial.[11] The defendant renewed his objection to the admission of the recording in his motion for a new trial, which was denied.

         On January 18, 2017, the state called Colwell as a witness, who testified that in August, 2012, she lived with her boyfriend at the time, Calabrese, at their condominium in Branford. Colwell stated that one day in the first week of August, 2012, Calabrese was on the telephone with Niraj. He told Colwell that Niraj ‘‘wanted him to go up near his parents' house . . . to rob a kid that owed him money'' and that Niraj told Calabrese that he ‘‘would give him a good amount of money if he did this.'' Colwell stated that Calabrese was hesitant at first but later decided ‘‘he was gonna do it.'' Within a couple days of the telephone call with Niraj, Calabrese left their condominium, saying that ‘‘he was going to pick up [the defendant] to go up near his parents' house to go rob the kid.'' Colwell begged him not to go. As the evening went on and Colwell did not hear from Calabrese, she began calling him ‘‘a hundred times'' and calling everyone he knew. When Colwell spoke with Calabrese later that evening, she asked him whether he did what he had to do, and Calabrese responded, ‘‘yeah, but we didn't get any money. We just got a little bit of weed.'' When Calabrese returned to their condominium early the next morning, he was wearing different clothes and was not wearing shoes. He told Colwell he had been playing basketball at Niraj's house and that Niraj had given him a change of clothes.

         1

         Federal Constitutional Claim

         We begin by addressing the defendant's federal constitutional claim that his confrontation rights were violated by the introduction into evidence of the recording of Calabrese's statements to Early. He argues that Calabrese's statements were testimonial. We disagree with the defendant's claim, which is controlled by our recent decision in State v. Patel, supra, 186 Conn.App. 814.

         ‘‘The sixth amendment to the United States constitution, applicable to the states through the fourteenth amendment, provides in relevant part: In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . . In Crawford v. Washington, [541 U.S. 36');">541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)], the [United States] Supreme Court substantially revised its approach to confrontation clause claims. Under Crawford, testimonial hearsay is admissible against a criminal defendant at trial only if the defendant had a prior opportunity for cross-examination and the witness is unavailable to testify at trial. . . . In adopting this categorical approach, the court overturned existing precedent that had applied an open-ended balancing [test] . . . conditioning the admissibility of out-of-court statements on a court's determination of whether the proffered statements bore adequate indicia of reliability. . . . Although Crawford's revision of the court's confrontation clause jurisprudence is significant, its rules govern the admissibility only of certain classes of statements, namely, testimonial hearsay. . . . Accordingly, the threshold inquiries in a confrontation clause analysis are whether the statement was hearsay, and if so, whether the statement was testimonial in nature . . . . These are questions of law over which our review is plenary.'' (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Walker, supra, 332 Conn. 689-90.

         ‘‘As a general matter, a testimonial statement is typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. . . . Although the United States Supreme Court did not provide a comprehensive definition of what constitutes a testimonial statement in Crawford, the court did describe three core classes of testimonial statements: [1] ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially . . . [2] extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions [and] . . . [3] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . . . The present case concerns only this third category form of testimonial statements.

         ‘‘[I]n Davis v. Washington, [547 U.S. 813');">547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)], the United States Supreme Court elaborated on the third category and applied a primary purpose test to distinguish testimonial from nontestimonial statements given to police officials, holding: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

         ‘‘In State v. Slater, [285 Conn. 162');">285 Conn. 162, 172 n.8, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S.Ct. 2885, 171 L.Ed.2d 822 (2008)], we reconciled Crawford and Davis, noting: We view the primary purpose gloss articulated in Davis as entirely consistent with Crawford's focus on the reasonable expectation of the declarant. . . . [I]n focusing on the primary purpose of the communication, Davis provides a practical way to resolve what Crawford had identified as the crucial issue in determining whether out-of-court statements are testimonial, namely, whether the circumstances would lead an objective witness reasonably to believe that the statements would later be used in a prosecution.'' (Citations omitted; internal quotation marks omitted.) State v. Walker, supra, 332 Conn. 700-702.

         Although arguing that the United States Supreme Court has yet to make an explicit post-Crawford ruling on this issue, the defendant recognizes that the court, in dicta, has expressed the view that ‘‘statements made unwittingly to a [g]overnment informant'' or ‘‘statements from one prisoner to another'' are ‘‘clearly non-testimonial.'' Davis v. Washington, supra, 547 U.S. 825 (citing Bourjaily v. United States, 483 U.S. 171, 181-84, 107 S.Ct. 2775, 97 L.Ed.2d 144 [1987], and Dutton v. Evans, 400 U.S. 74, 87-89, 91 S.Ct. 210, 27 L.Ed.2d 213 [1970] [plurality]). The defendant further concedes that ‘‘to date, federal and state courts have refused to accord ‘testimonial' status to statements made to fellow inmates or informants.''

         This court, in resolving Niraj's appeal, noted that our Supreme Court had not ‘‘addressed the specific issue of whether a recording initiated by a prisoner, who is acting as a confidential informant, of a fellow prisoner unwittingly making dual inculpatory statements about himself and a coconspirator or codefendant are testimonial in nature.'' State v. Patel, supra, 186 Conn.App. 837. Considering this question in the context of Calabrese's statements, this court concluded that his statements were nontestimonial in nature. Id. This court relied on United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004), cert. denied, 543 U.S. 1079, 125 S.Ct. 938, 160 L.Ed.2d 821 (2005), in which the United States Court of Appeals for the Second Circuit concluded ‘‘that a declarant's statements to a confidential informant, whose true status is unknown to the declarant, do not constitute testimony within the meaning of Crawford'' and decisions from other jurisdictions holding that statements to confidential jailhouse informants were not testimonial. See State v. Patel, supra, 840-41 (collecting cases).

         We conclude that the resolution of the defendant's federal constitution claim is controlled by our decision in State v. Patel, supra, 186 Conn.App. 814, in which we concluded that Calabrese's statements ‘‘[bore] none of the characteristics of testimonial hearsay, '' in that ‘‘Calabrese made these statements to his prison cellmate in an informal setting. He implicated himself, [the defendant] and [Niraj] and there is no indication that he anticipated that his statements would be used in a criminal investigation or prosecution.'' Id., 841. State v. Patel, supra, 814, was released on January 8, 2019, after the briefing was completed in this case.[12] At oral argument before this court, the sole bases advanced by the defendant's appellate counsel for distinguishing Patel were differences in the evidence presented as to the circumstances preceding Early's agreement to record Calabrese.

         The following additional background is relevant. In Niraj's trial, the court denied his motion in limine to preclude introduction into evidence of the Calabrese recording and noted that ‘‘the state claims that the conversations between Calabrese and the cellmate were initiated on September 3, 2013, without the involvement of law enforcement . . . .'' Early testified, in that case, that ‘‘the intelligence officer asked me if I was-if I was willing to wear a device because I was ready-they don't want him because I'm trying to-I'm trying to dis on my plate, so, I say-I say, absolutely, I will. Know what I mean? He was in my cell. And I went to the officer and he started speaking; the next day, I went to the officer and said, he-he's talking about it; know what I mean? So, he put the device in my pocket-in my pocket and sent me back to the cell.'' On cross-examination, Early further testified that the night Calabrese was moved into his cell, he and Calabrese talked about their charges, and that the following day, Early went to security and said that he knew he could get Calabrese to talk.[13] In the present case, as described previously, Early testified that he first was called to the ...


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