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Date: 07-27-2016
Case Style: STATE OF CONNECTICUT v. BILLY RAY WRIGHT
Case Number: SC 19411
Judge: Andrew J. McDonald
Court: Connecticut Superior Court
Plaintiff's Attorney: Ronald G. Weller
Michael Dearington
John Waddock
Defendant's Attorney: Lisa J. Steele
Description: This certified appeal requires us to consider a defendant’s rights and obligations when he seeks to advance a theory of defense that the police investigation into the crimewith which he was charged was inadequate. The state appeals from the judgment of the Appellate Court, which reversed the judgment of conviction of the defendant, Billy Ray Wright, of murder and remanded the case for a new trial. The Appellate Court held that the trial court violated the defendant’s right to a fair trial by limiting his crossexamination of the investigating police officers as to whetherthemurderinvestigationconformedtogeneral police practices and/or standard police investigative procedures. State v. Wright, 152 Conn. App. 260, 269, 96 A.3d 638 (2014). We conclude that, in the absence of a sufficient offer of proof regarding this line of questioning, the trial court’s rulings limiting cross-examinationtotheadequacyoftheinvestigationathandcannot be deemed improper. We therefore reverse the judgment of the Appellate Court. The record reveals the following undisputed facts andproceduralhistory.Thevictim,RonaldBethea,was shot from behind as he stood a short distance from a small crowd of people outside a New Haven bar just before the bar’s closing at 2 a.m. on April 27, 2008. The crowd scattered upon hearing the gunshot. The victim staggered into the bar, collapsed, and lost consciousness. He later died from his wound. Police officers with the New Haven Police Department arrived at the scene minutes later. The first officers to arrive operated under the assumption that the shootinghadoccurredinsidethebar,basedoninformation to that effect relayed by a dispatcher, the victim’s location,andthestatementsofpersonsoutsidethebar. It was only after the department’s detectives subsequently arrived and reviewed surveillance video from several cameras positioned inside and outside the bar that it was ascertained that the shooting occurred outside the bar. The investigation that ensued led to the defendant being charged with the victim’s murder. Thestate’sevidenceatthedefendant’strialconsisted entirely of circumstantial evidence. The principal evidence was the surveillance video, which, in grainy images, showed the perpetrator’s movements from inside the bar to outside the bar prior to the murder. The surveillance video of activity outside of the bar showed the perpetrator approach two people, give one person a handshake and a sort of hug, walk away after that encounter, approach the victim from behind, and thenshootthevictimwithagunhiddenunderhisjacket. Although no witness identified the defendant as the perpetrator from that video,1 an acquaintance of the defendant, Denard Lester, identified himself as the per
son on the video being given the handshake and he had made a prior statement under oath that the defendant had given him ‘‘dap’’ (described as a handshake and hug) outside the bar on the evening of the shooting.2 Another witness corroborated that she was with Lester outside the bar when someone had given Lester ‘‘dap’’ shortly before the shooting occurred. The two owners of the bar identified the defendant and Lester as being present in the bar that evening. Onthefirstdayoftrial,thestateofferedthetestimony of four New Haven police officers who responded to or processed the crime scene. On cross-examination, defense counsel sought to question these witnesses regarding their investigation into the murder. The trial court sustained the state’s objections to several of defense counsel’s questions. These evidentiary rulings form the basis of the dispute in this appeal. The first witness, Officer David Parker, had attended to the victim and had not played any investigative role in the murder. On cross-examination, defense counsel established that Parker had never relayed to other officers that he had observed people running from the scene upon his arrival, or taken any steps to determine the perpetrator’s identity. After defense counsel established that Parker had responded on other occasions to shooting incidents prior to the murder of the victim, the state objected on the ground of relevance when defense counsel asked: ‘‘And when you arrived at a shooting, do—do you try to determine whether or not any witnesses were at the scene?’’ Defense counsel responded:‘‘It’snotjustwhathedid,YourHonor,that’s relevant.It’salsowhathedidn’tdothat’srelevant.’’The court sustained the objection. The second witness, Officer Terrence McNeil, testified that, although he was not instructed to do so, he had made repeated efforts to canvass for potential witnessesuponhisarrivalatthescenebut‘‘nobodywanted togetinvolved.’’Oncross-examination,defensecounsel established that during those canvasses, McNeil had not: (1) asked anyone for identification even though he could have; (2) noted descriptions of people present at the scene; (3) canvassed homes across the street from the barto ascertainwhether anyonehad seenanything; or (4) noted the license plate numbers of the vehicles that people leaving the scene had entered. Defense counsel established that McNeil previously had responded to many shootings, and then sought to ask: ‘‘And one of the things you want to determine is where the shooting occurred, correct?’’ The court sustained the state’s objection, ruling: ‘‘What’s relevant is his actions on the evening of April 27, 2008.’’ The court later sustained the state’s relevance objection when defense counsel attempted to ask: ‘‘Well, this is not a— a reaction that was new to you, people not wanting to get involved, correct?’’ The court reiterated: ‘‘Counsel
it has to be related to this day.’’ Defense counsel then asked for the jury to be excused.Afterthecourtdidso,defensecounselargued: ‘‘This . . . is not the . . . first shooting [McNeil has] responded to. . . . His investigative skills are honed over thirteen years of experience. What he does relates to that experience. Okay. For me to say to him this is not the first time he’s responded to a shooting where people were not cooperative is just preliminary to me asking him well . . . having had people refuse to cooperate in the past have you taken steps to secure that cooperation other than merely asking them to cooperate. I mean it’s not as if—it’s just what he did at the scene here. When he is confronted with uncooperative witnesses, there are other things he can do in order to secure that cooperation. It’s not the first scene where he’s gone to where people did not . . . want to get involved.’’ The court responded that questions pertaining to what McNeil did or did not do in connection withthisparticularinvestigationwereproper,butquestions regarding other investigations were not relevant. Defense counsel requested to make a further offer of proof by questioning McNeil, which the court allowed. DefensecounselthenaskedMcNeilonlytwoquestions: ‘‘Whenpeopletellyouthattheydon’twanttocooperate, is there anything you can do to secure that cooperation?’’;and‘‘Whenyouareconfrontedwithnoncooperation of potential witnesses as you were in this case, can you take any other steps other than merely asking them to cooperate?’’ The state objected, but noted that it would have no objection to questions limited to the events of April 27, 2008. The court responded that it hadunderstooddefensecounsel’squestiontoberelated tothatdate.Afterconfirmingwithdefensecounselthat he had nothing further, the court recalled the jury. When cross-examination resumed, defense counsel asked McNeil: ‘‘When you are faced with this noncooperation by the people you spoke to, was there anything you could have done in light of that noncooperation to secure their cooperation?’’ McNeil responded, ‘‘No.’’ Defensecounselthenattemptedtoask:‘‘Well,wouldn’t some of the people not want to give you information in front of other people? . . . Is that one of the things you were cognizant of?’’ The court sustained the state’s objection on the ground that the questions called for speculation. Defense counsel then asked in rapid succession, with objections from the state and comments from the court interposed: ‘‘Well, if you had [the potential witnesses’] names that you didn’t secure and you approached them when they were home and not in front of a crowd of people, is that something that is done . . . on occasion? . . . You couldn’t have done that? . . . Some people don’t like to give information infrontofotherpeople,isn’tthatcorrect,Officer?’’The court also sustained objections to these questions.
During a subsequent jury recess, defense counsel stated to the court: ‘‘In regard to . . . my cross-examination to what was done by the police officers in this casethestateisgoingtogetupandargueduringclosing argument, at least in everything humanly possible, as— and they were unable to have any witnesses, it’s not their fault. The fact of the matter is, Your Honor, that they didn’t do everything humanly possible. And what they didn’t do is as relevant in this case as what they did do because they do not have any eyewitness to this shooting, and what steps they . . . took or didn’t take to secure an eyewitness is important. Now, for me not to be able to ask an officer when you . . . canvass a crowd of people and say, does anybody have any information . . . we all know in the real world a lot of people don’t come forward to be labeled a snitch in front of a crowd . . . but had he gotten identification, which he could have gotten, then he could have approached these people when they had been alone to try to determine whether or not anybody had seen anything. . . . ‘‘Your Honor, nobody cooperated at the scene but thatdidnotforeclosethemfrompursuingotheravenues with the same people had they gotten their names. And for me not to ask a police officer, isn’t it true that some people are not forthcoming in groups but when approached later in a one-to-one situation have provided information? And why didn’t you take steps to ensure that you identified those people so you could at a later date go to them outside of a group of people to ask them if they had seen anything? I mean, I . . . don’t understand why I would be foreclosed from . . . inquiring as to why [they] didn’t do those things.’’ The court responded: ‘‘I made my rulings based on what this witness said here. I don’t know what else I’m going [to]hear from detectiveswho were incharge and investigating this case. But I . . . made my rulings with relevancy with [Officer McNeil] concerning his activities on April 27, 2008. . . . That does not mean if I hear—you know, I don’t know what other evidence I’m going to hear from the state and I’m not sure if you are too, about detectives and captains and what their procedure is and was on that particular night . . . but I stand by my rulings . . . .’’ Defense counsel reiterated his concern that the state would ‘‘say the police did everything humanly possible and were unable to develop any witnesses to the shooting,’’ and that he ‘‘would like to be able to say, well, they didn’t . . . .’’ The state’s case thereafter resumed with its third witness,DetectiveHerbertV.JohnsonIII.Johnsontestified that he had arrived at the scene approximately one hour after the shooting and had been assigned specific duties that did not include canvassing witnesses. Defense counsel established that Johnson had not: (1) conducted any type of canvass; (2) inquired as to what
efforts other officers had made to develop potential witnesses; (3) instructed officers to canvass the homes acrossthe street;or (4)attempted toestablisha motive for the shooting. Defense counsel was precluded, on the ground of relevance, from asking Johnson as to whetherhewas‘‘unabletodeterminewhetheranybody was outside smoking when the shooting occurred.’’ Thestate’sfourthwitness,DetectiveBridgettBrosnahan of the department’s Bureau of Identification, had photographed the scene and collected potential physical evidence. On direct examination, Brosnahan testified that she had collected some ‘‘fiber-like materials’’ fromthe scene.Oncross-examination, defensecounsel established that those materials had not been tested to determinecolororcomposition,eventhoughtheycould have been.3 When defense counsel attempted to ask Brosnahan whether she ever suggests to detectives workingacasewithherthatfurthertestingisnecessary, the state sought clarification, saying that it would have no objection if defense counsel was ‘‘referring to this case . . . .’’ Defense counsel responded: ‘‘I’m not just asking about this case. . . . I’m asking about general procedures between [the Bureau of Identification] and detectives.’’ The court instructed defense counsel to limit the question ‘‘to the events of April 27, 2008.’’ On the second day of trial, before the jury entered the courtroom, defense counsel expressed his general disagreement with the trial court’s rulings of the prior day. Defense counsel argued that he should be able to elicit testimony to demonstrate that the officers could have done more to secure potential witnesses. Apparently in reference to the lead investigating detective, whom defense counsel anticipated would be called by the state to testify that day, defense counsel stated: ‘‘I’m going to establish that he is an expert and at that point I think I could ask him hypothetical questions that do not stem from the evidence in this case . . . . I’m going to ask him about isn’t it true that certain people cannot come forward and do not cooperate in a group setting, but may be amenable to speaking to the police one-on-one. Isn’t it important to establish who was present, at least, to get their names and if they aren’t cooperative, go back and speak with them.’’ The court expressed no opinion on defense counsel’s proposal,insteadaddressinganotherevidentiarymatter that had been raised earlier. The state never called the lead detective to testify, and the defense did not seek to proffer the detective as its own witness. The defense offered no other witnesses nor did it attempt to introduceevidencerelatingtoinvestigativepracticesorprocedures. The jury found the defendant guilty of murder. The court rendered judgment in accordance with the verdict. On appeal before the Appellate Court, the defendant
claimed that he had been deprived of his constitutional right to present a defense because the trial court improperly limited the scope of his cross-examination of the investigating police officers regarding the adequacy of their investigation. State v. Wright, supra, 152 Conn.App.263.Withregardtotheissueinthiscertified appeal, the defendant specifically contended that the trialcourtimproperlyhadlimitedhiscross-examination of the investigating officers regarding what the officers did or did not do by way of investigation on the night of the murder and precluded his broader inquiry into police procedures generally followed in cases like his. Id., 268–69. The Appellate Court concluded that the defendant had been permitted to inquire into what the officers did not do in his case, but determined that ‘‘it wasequallyimportantforthedefendanttobepermitted to bring to the attention of the jury any differences there may have been between what [the officers] did not do in this investigation and general or ordinary police procedures that they had followed in other murder cases.’’ Id., 275–76. The Appellate Court characterized the defendant’s questions as seeking ‘‘to elicit testimony as to whether the police, in not pursuing certainavenuesofinvestigationorpossibleprocedures, were acting in accord with past practices or with what could be regarded as standard police investigative procedures.’’ Id., 269. The court saw no reason why the police officers could not have been qualified as expert witnesses and asked such questions on the basis of their training and experience. Id., 276. The court held that the trial court’s refusal to permit such an inquiry violatedthedefendant’srighttoafairtrialandrequired a new trial in light of the tenuous nature of the state’s case. Id., 274, 282. Wethereaftergrantedthestate’spetitionforcertification to appeal to this court, limited to the following issues:(1)‘‘DidtheAppellateCourtproperlydetermine thatthetrialcourthadabuseditsdiscretionbyprecluding the defendant from asking certain questions during cross-examinationaboutthepoliceinvestigationinthis case?’’; and (2) ‘‘If the answer to the first question is ‘yes,’ did these evidentiary improprieties deprive the defendantofhisconstitutionalrighttoafairtrial?’’State v. Wright, 314 Conn. 941, 941–42, 103 A.3d 165 (2014). The state claims that the Appellate Court’s reasoning was flawed in two principal respects. First, it contends that the Appellate Court improperly created a new rule deemingadefendantconstitutionallyentitledtoinquire into police practices and procedures. Second, it contends that, even if a defendant may permissibly inquire into police practices and procedures, in the present case, the defendant failed to make an offer of proof to establish his intention to present a defense that the policehaddeviatedfromthosepracticesorprocedures, letaloneestablishthattheir actionshadnotconformed to any such practices or procedures.
We disagree with the state that the Appellate Court adoptedaperseruledeemingadefendantconstitutionally entitled to present evidence that the police investigation failed to conform to standard practices or operating procedures. We read the Appellate Court’s decision simply to hold that, under the facts of the presentcase,thetrialcourt’slimitationoncross-examination was of constitutional dimension because it precluded the defendant from placing the police officers’ investigation into a meaningful context for purposes of the defendant’s inadequate investigation defense. State v. Wright, supra, 152 Conn. App. 274–76. We do not consider, however, whether that determination was correct. We conclude that because neither the defendant’s proposed questions nor his offer of proof established the basis for a claim that the police, in not pursuing certain avenues of investigation, had failed to act in accordance with past established practices or standard police investigative procedures, he cannot establish that the trial court improperly precludedhim fromadvancingan inadequateinvestigation defense on this basis. This court has not previously addressed the parameters of an inadequate investigation defense. Nonetheless, this court has recognized that defendants may use evidence regarding the inadequacy of the investigation into the crime with which they are charged as a legitimate defense strategy. See State v. Collins, 299 Conn. 567, 599–600, 10 A.3d 1005, cert. denied, U.S. , 132S.Ct.314,181L.Ed.2d193(2011). Collinsinvolved achallengetoajuryinstructionstatingthattheultimate issue to be decided was not the thoroughness of the investigation, but whether the state had proven the defendant’sguiltbeyondareasonabledoubt.Id.Inconcluding that the instruction was not improper, we explained: ‘‘In the abstract, whether the government conducted a thorough, professional investigation is not relevanttowhatthejurymustdecide:Didthedefendant commit the alleged offense? Juries are not instructed toacquitthedefendantifthegovernment’sinvestigation was superficial. Conducting a thorough, professional investigation is not an element of the government’s case. . . . A defendant may, however, rely upon relevant deficiencies or lapses in the police investigation to raise the specter of reasonable doubt, and the trial court violates his right to a fair trial by precluding the jury from considering evidence to that effect.’’4 (Citations omitted; internal quotation marks omitted.) Id.; see also Kyles v. Whitley, 514 U.S. 419, 446 and n.15, 115S.Ct.1555,131L.Ed.2d490(1995)(acknowledging that it is common and accepted tactic for defendants to challenge adequacy of police investigation). Asanothercourthasexplained:‘‘[T]heinferencethat may be drawn from an inadequate police investigation isthattheevidenceattrialmaybeinadequateorunrelia
ble because the police failed to conduct the scientific testsortopursueleadsthatareasonablepoliceinvestigationwouldhaveconductedorinvestigated,andthese testsorinvestigationreasonablymayhaveledtosignificant evidence of the defendant’s guilt or innocence. A jury may find a reasonable doubt if they conclude that the investigation was careless, incomplete, or so focused on the defendant that it ignored leads that may have suggested other culprits.’’ Commonwealth v. Silva-Santiago, 453 Mass. 782, 801, 906 N.E.2d 299 (2009); see also Sample v. State, 314 Md. 202, 207, 550 A.2d 661 (1988) (explaining that, when ‘‘the [s]tate has failed to utilize a well-known, readily available, and superior method of proof to link the defendant with the criminal activity, the defendant ought to be able to comment on the absence of such evidence’’). Other jurisdictions have recognized that evidence that the police failed to follow routine practices or standard procedures can be relevant to an inadequate investigation defense strategy. See State v. Hites-Clabaugh, 251 Or. App. 255, 259–67, 283 P.3d 402 (2012) (concludingthatevidenceofprotocolsforinvestigating sexualabusecases,toprovethatsuchprotocolshadnot been followed, was improperly precluded). Standard procedures presumably reflect departmental recognition that certain actions are necessary to ensure the integrity of an investigation or are productive insofar as they often yield useful information. Cf. Commonwealth v. Bowden, 379 Mass. 472, 486, 399 N.E.2d 482 (1980) (‘‘[t]he fact that . . . certain police procedures [were] not followed could raise a reasonable doubt as to the defendant’s guilt’’). Although perhaps not as weighty evidence as standard operating procedures, routinepracticesreflectexperiencethatsuchapractice has reliably produced material information. A defendant, however, does not have an unfettered right to elicit evidence regarding the adequacy of the police investigation. The reference in Collins to ‘‘relevant deficiencies or lapses in the police investigation’’ suggests that the defendant must do more than simply seek to establish that the police could have done more. (Emphasis added.) State v. Collins, supra, 299 Conn. 599;seealso Thompson v. State,399A.2d194,198(Del. 1979) (‘‘[The] defendant failed to demonstrate how his witnesses’ testimony was relevant and material to that issue. The mere possibility that exculpatory evidence mighthavebeenfoundthroughamoreextensiveinvestigation by the [s]tate is an insufficient demonstration.’’); Commonwealth v. Silva-Santiago, supra, 453 Mass. 801 (citing ‘‘tests or investigation [that] reasonably may have led to significant evidence of the defendant’s guilt or innocence’’ [emphasis added]); People v. Hayes, 17 N.Y.3d 46, 53, 950 N.E.2d 118, 926 N.Y.S.2d 382 (‘‘[A] criminal defendant does not have an unfetteredrighttochallengetheadequacyofapoliceinvestigation by any means available. It is well settled that
[a]n accused’s right to cross-examine witnesses . . . is not absolute . . . .’’ [Citation omitted; internal quotation marks omitted.]), cert. denied sub nom. Hayes v. New York, U.S. , 132 S. Ct. 844, 181 L. Ed. 2d 553 (2011). Even when such evidence has some probative value, the court must consider ‘‘whether the probative weight of the . . . evidence exceed[s] the risk of unfair prejudice to the [state] from diverting the jury’s attention to collateral matters.’’ (Internal quotation marks omitted.) Commonwealth v. Alcantara, 471 Mass. 550, 561–62, 31 N.E.3d 561 (2015); see also State v. Brown, 273 Conn. 330, 342–43, 869 A.2d 1224 (2005) (trial court reasonably could have determined that questioning policeofficeraboutdepartmentalpoliciesregardinguse of deadly force and officer’s prior use of deadly force underquestionablecircumstancesinothercasespotentially would have confused issues and diverted jury’s attention to collateral issue of propriety of officer’s conductinlightofdepartmentalstandards);Conn.Code Evid. § 4-3 (exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time). All of these factors must be evaluated by the trial court in determining whether the particular inadequate investigationevidenceshouldbeadmitted.Thatevaluationnecessarilyisframedbythetheoryoftheproffering party.Itiswellsettledthat‘‘[t]heprofferingpartybears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant. . . . Relevance may be established in one of three ways. First, the proffering party can make an offer of proof. . . . Second, the record can itself be adequate to establish the relevance of the proffered testimony. . . . Third, the proffering party can establish a proper foundation for the testimony by stating a good faith belief that there is an adequate factual basis for his or her inquiry.’’ (Internal quotation marks omitted.) State v. Benedict, 313 Conn. 494, 511, 98 A.3d 42 (2014). In the present case, the defendant first asserts that he‘‘explained[tothetrialcourt]hisintentwastoestablish that the officers had investigated other homicide cases, qualify the officer[s] as . . . expert[s], and then askwhethertherewerestepstheofficer[s]hadtakenin other homicide cases to identify and contact witnesses [who] could have been used in this case.’’ The record is clearly to the contrary.5 Although police officers who are properly qualified on the basis of their training and/or experience often are used as expert witnesses; see, e.g., State v. Campbell, 225 Conn. 650, 655, 626 A.2d 287 (1993); State v. Girolamo,197Conn.201,215,496A.2d948(1985);State v. Cosgrove, 181 Conn. 562, 587–88, 436 A.2d 33 (1980); thedefendantneveraskedtoqualifyanyofthetestifying officers as an expert. Defense counsel only stated during his offerof proof that McNeil’sactions were related
to McNeil’s ‘‘experience,’’ which cannot reasonably be construed as an expression of an intention to qualify McNeil as an expert. By contrast, the day after completion of the testimony of the four officers at issue, defense counsel expressed a clear intention to qualify a prospective police witness as an expert. At that time, defensecounselneverindicatedthathisquestionsfrom the prior day were aimed at a similar intent. The record does not contain sufficient evidence to qualify the witnesses as experts, and the defendant did not seek to elicit information that would have done so. The state elicited testimony on direct examination regarding the length of each officer’s tenure. No information was elicited regarding training or duties. The testimony established that Parker and Brosnahan had minimal experience in their positions at the time of the murder, one year and approximately two years, respectively.AlthoughMcNeilandJohnsonhadthirteen and fourteen years with the police force at the time of trial, respectively, the closest the defendant came to building on that information was to establish that McNeil had responded to ‘‘many’’ shootings during his tenure. The defendant also did not seek to elicit information regardingroutinepracticesorstandardpoliceoperating procedures for any period of time, let alone the time ofthecrime.Defensecounsel’squestionsinsteadasked whether the officer ‘‘ever’’ did something; whether a particular response was ‘‘new’’ to the officer; whether something had been done ‘‘on occasion’’; and other questions that generally sought information about whether some action previously had been undertaken in some other cases. Defense counsel never asked whether the officer had undertaken the action in question‘‘routinely,’’‘‘consistently,’’‘‘regularly,’’oranyterm of like effect.6 Nor did the defendant attempt to introduce documentary evidence or proffer his own witness regarding any police investigative protocols or proceduresthathavebeenadoptedbynational,state,orlocal law enforcement agencies or organizations. Mostsignificantly,whenthedefendantmadehisoffer of proof, he never addressed routine practices or standard operating procedures at the time of the crime. He did not elicit evidence as to the existence of such practices or procedures, the failure to adhere to such practices or procedures, or the possibility that adherence to such practices or procedures could have led to materialevidenceofthedefendant’sguiltorinnocence. See, e.g., State v. Shaw, 312 Conn. 85, 106, 90 A.3d 936 (2014) (offer of proof must be sufficient to show that evidence sought to be explored is relevant); State v. Esposito, 235 Conn. 802, 832–33, 670 A.2d 301 (1996) (defendant, as proffering party, bore burden of making sufficient offer of proof); see also State v. Bova, 240 Conn. 210, 226, 690 A.2d 1370 (1997) (defendant’s offer
ofprooffailedto establishevidentiaryfoundationsufficient to support inference establishing relevancy of proffered testimony). Instead, thedefendant’s offer of proofconsisted only of two questions to McNeil regarding whether McNeil could have done more to obtain cooperation from potential witnesses. Defense counsel’s subsequent arguments repeatedly underscored that he wanted to inquireintowhattheofficershadnotdoneinthedefendant’scase,whichhewaspermittedtodo,andwhatthe officershaddoneinsomeotherinvestigations,whichhe was not permitted to do. The latter inquiry is not the same as one directed at establishing that the officers hadfailedtofollowroutinepracticesorstandardprocedures. Nor is it tantamount to laying a foundation for establishing recognized practices or procedures and a failure to comply therewith. Although defense counsel stated,priortoquestioningMcNeilforhisofferofproof, that his overruled questions had been ‘‘preliminary,’’ hisquestionstoMcNeilneverinquiredfurtherintopractices or procedures. Indeed, defense counsel’s lone reference to a matter akin to routine practices or standard procedures was a complete non sequitur relating to a witness who was not qualified to offer such testimony. Specifically, in response to the state’s request for clarification regarding his question to Brosnahan whether she ‘‘ever’’ suggests to detectives that further testing is necessary, defensecounselassertedthathewasaskingabout‘‘general procedures between [the Bureau of Identification] and detectives.’’ The question plainly did not relate to standard procedures, and defense counsel never rephrased his question to relate to such procedures. Moreover, Brosnahan had a limited tenure with the bureau, and had not been asked about the extent of her experience in a manner that could qualify her as an expert. The defendant’s second argument implicitly concedes the deficiencies in the record. He repeatedly asserts that he ‘‘was not allowed to make an offer of proof’’ and that the ‘‘trial court violated [his] constitutional rights . . . by not letting him make a full offer of proof.’’7 The record is clearly to the contrary on this point as well. The trial court permitted the defendant to make an offer of proof through his examination of McNeil, over the state’s objection, without limitations. See State v. Esposito, supra, 235 Conn. 833 (defendant’s failure to make sufficient offer of proof not attributable to trial court where court placed no limitations on defendant’s offer); cf. State v. Zoravali, 34 Conn. App. 428, 432–33, 641 A.2d 796 (trial court denied defendant’s request to make offer), cert. denied, 230 Conn. 906, 644 A.2d 921 (1994). Defense counsel posed only two questions, which the trial court interpreted to be directed at the
investigation at hand. Defense counsel said nothing to disabuse the court of that impression. The court asked defensecounselwhetherhehadanythingfurtherbefore it recalled the jury. Defense counsel indicated that he did not. Duringasubsequentjuryrecess,defensecounselwas permitted to press his argument further. The trial court underscored that the limitations that it had placed on defense counsel’s questions were based on the testimony of the particular witness and that witness’ role in the investigation at hand. The court expressly left the door open to a broader inquiry when the officers and detectives in charge of the case were called to testify.Defensecounselneverarguedthatofficersother than those in a supervisory capacity could competently testify regarding routine practices and standard operatingprocedures.Nordidherepresentagoodfaith basis to believe that such practices or procedures existed and had been violated. The next day, when defense counsel renewed his disagreement with the limitations imposed on cross-examination the previous day, the trial court did nothing to preclude or limit that argument. Ultimately, it is the defendant’s duty to put the trial courtonnoticeofhisdefensetheoryandtoensurethat evidence to support that theory is placed on the record for appellate review. See State v. Brunetti, 279 Conn. 39, 63, 901 A.2d 1 (2006) (requiring defendant ‘‘to take the necessary steps tosustain [his] burden of providing an adequate record for appellate review’’ [internal quotation marks omitted]), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). We recognize that thestaterepeatedlyinterrupteddefensecounsel’squestions and argument, which undoubtedly made defense counsel’sjobmoredifficult.Nonetheless,defensecounsel was permitted to place relevant facts on the record. Stated simply, the record does not reflect that the defendant expressed an intention to qualify any of the testifying officers as experts and to inquire about standardoperatingproceduresorroutinepracticesthathad notbeenfollowedintheinvestigationathand.Nordoes the record establish such facts. The defendant’s claim thatthetrialcourtimproperlyprecludedhisinadequate investigationdefensestrategyastosuchalineofinquiry therefore necessarily fails.
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