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Connecticut Supreme Court Clarifies Standard of Review for Confrontation Clause Claims; Reverses and Remands for a New Trial

by Douglas Ankney

The Supreme Court of Connecticut clarified the standard of review for claimed violations of the Sixth Amendment’s Confrontation Clause and reversed the judgment of the Appellate Court affirming the convictions of Horvil F. Lebrick.

Lebrick was charged with attempted robbery and felony murder, among other things, for actions that resulted in the shooting death of Shawna Lee Hudson. Lebrick told police he had been present at the apartment of Omar Barrett, located in Hartford, Connecticut, assisting twin brothers Andrew and Andraw Moses “move some boxes” on May 6, 2010, when “a guy showed up shooting.”

Lebrick further told police he did not have a gun and did not know the Moses twins had guns before the shooting began. Lebrick explained to police that he escaped from the apartment by following behind some other men “as they shot their way out of the apartment.” But the State compelled a reluctant Keisha Parks — Andrew Moses’ fiancée — to testify at Lebrick’s probable cause hearing. Parks testified that on May 5, 2010, she observed the Moses brothers enter Lebrick’s van in Brooklyn. The next day she heard that the Moses brothers had been killed.

Lebrick contacted Parks and told her that he had traveled to Connecticut with the Moses brothers and an unidentified driver with the intent to rob Barrett. He and the brothers kicked open the door to the apartment and found a girl inside (Hudson) with a gun. He took the gun and went into another room of the apartment. Moments later, he heard gunshots. He then shot his way out of the apartment, observing the twins’ bodies on the floor as he left. He told the driver of the van that the Moses brothers were dead and then fled to New York.

Two months before Lebrick’s trial, the State began searching for Parks to secure her in-court testimony. Police Inspector Emory L. Hightower attempted to contact Parks at her last known address and phone number; then by conducting an electronic search for criminal records in the Hartford Police Department’s database; and then by searching for criminal records in the National Crime Information Center database. 

Obtaining no results, he used a search engine called CLEAR from which he obtained two addresses for Parks in New York and some phone numbers. He emailed an interstate summons to the Kings County District Attorney’s Office, requesting the summons be served to compel Parks’ attendance at the trial. Investigator Frank Garguillo visited each of the addresses and called the phone numbers, but he did not locate Parks. Garguillo was not instructed to conduct any independent investigation to ascertain Parks’ whereabouts, and he did not do so.

At trial, Barrett testified that he had shot and killed the Moses brothers in a gunfight, but Lebrick had shot and killed Hudson. Also at trial, the court — over Lebrick’s objections — allowed the State to enter Parks’ testimony from the probable cause hearing pursuant § 8-6(1) of the Connecticut Code of Evidence, which allows the admission of “[t]estimony given as a witness at another hearing” if “the declarant is unavailable as a witness....” Lebrick was convicted, and the Appellate Court affirmed. The Connecticut Supreme Court granted further review.

The Court acknowledged that it had previously observed in general terms that “[t]he trial court has broad discretion in determining whether a proponent has shown a declarant to be unavailable. A trial court’s determination of the unavailability of a witness will be overturned only if there has been a clear abuse of discretion.” State v. Lapointe, 678 A.2d 942 (Conn. 1996).

However, this ruling was in connection with a claim that the trial court had violated state law, i.e., § 8-6(1). When a defendant claims, as in the instant case, violation of his rights under the Confrontation Clause by the admission of an out-of-court statement of an allegedly unavailable declarant pursuant to Crawford v. Washington, 541 U.S. 36 (2004), the abuse of discretion standard “is at odds with the axiomatic principle that ‘question[s] of constitutional law ... [are] subject to plenary review.’” State v. Kirby, 908 A.2d 506 (Conn. 2006). 

The Court clarified that claims of violations of the Confrontation Clause are mixed questions of fact and law. Hamilton v. Morgan, 474 F.3d 854 (6th Cir. 2007). Therefore, the Court is bound to accept the factual findings of the trial court unless they are clearly erroneous, i.e., an abuse of discretion, but the Court reviews de novo the trial court’s application of the law to those facts.

Under the Confrontation Clause, a witness is not unavailable unless the prosecution has made a good faith, or reasonable, effort to obtain his presence at trial. Hardy v. Cross, 565 U.S. 65 (2011). There are four objective criteria that guide the reasonableness inquiry: (1) a more crucial witness requires a greater effort to secure his presence for trial; (2) the more serious the crime, the greater the effort must be; (3) if the witness has been granted a special privilege such as immunity, the greater the effort must be; and (4) the State must make the same effort to locate the witness as it would have done if it did not have the out-of-court statement. United States v. Burden, 934 F.3d 675 (D.C. Cir. 2019).

Applying those factors to Lebrick’s claim, the Connecticut Supreme Court concluded that: (1) Parks’ testimony was crucial because it directly contradicted Lebrick’s statement to police on the issue of intent to rob Barrett and whether he was armed before entering the apartment; (2) Lebrick’s charges were the most serious, including felony murder that carried up to life in prison; (3) Parks had not been promised any special privilege; but (4) had the State not been in possession of her out-of-court statement, it would have done exceedingly more to secure her presence at trial. 

For example, the Court pointed out that the State did not search popular social media sites such as Facebook or use a search engine like Google. And even though Hightower knew Parks was a New York resident, he did not search New York state agency records such as the Department of Motor Vehicles, social services, housing court, family court, or child support records. Nor did he request Garguilo to undertake such a basic investigation to locate Parks. Hightower and Garguilo’s actions were perfunctory at best and did not meet the required “greater effort” to meet the “relatively high good faith standard” of the Confrontation Clause to locate Parks. United States v. Mann, 590 F.2d 361 (1st Cir. 1978).

The Court concluded that the district court violated Lebrick’s rights under the Confrontation Clause by admitting the out-of-court statement of Parks when she was not present at trial to testify. 

Accordingly, the Court reversed the judgment of the Appellate Court and remanded to that court with instructions to remand to the trial court for a new trial. See: State v. Lebrick, 2020 Conn. LEXIS 27 (2020). 

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