State v. Villanueva: Evidentiary Predicate for Investigative-Inadequacy Instructions; No Per Se Suppression for § 54-1p Warning Omissions; Autopsy Photographs Are Nonhearsay for Confrontation Purposes

1. Introduction

In State v. Villanueva (Conn. July 15, 2025), the Supreme Court of Connecticut affirmed the defendant’s convictions for murder, carrying a pistol without a permit, and criminal possession of a firearm arising from a fatal shooting outside Mr. Bentley’s Café in Meriden. The case turned on three recurring trial issues in violent-crime prosecutions: (1) when a defendant is entitled to a jury instruction that alleged police investigative lapses may create reasonable doubt, (2) when an eyewitness photographic identification must be suppressed under Connecticut’s post-State v. Harris due process framework, and (3) whether (and to what extent) a medical examiner who did not perform the autopsy may testify without violating the Sixth Amendment after Smith v. Arizona.

The key parties were the State of Connecticut and defendant Davis Roman Villanueva. The state’s evidence included surveillance video of the incident, DNA on a beer can thrown by the shooter, and identification evidence. The defense theory emphasized misidentification and “tunnel vision,” suggesting an alternate perpetrator (Ramphis Pacheco).

2. Summary of the Opinion

Investigative inadequacy instruction: No constitutional deprivation occurred when the trial court refused to instruct the jury on investigative inadequacy, because the defendant failed to preserve one set of asserted lapses and failed to produce record evidence supporting the others.
Eyewitness identification suppression (state due process): The trial court properly admitted an out-of-court photographic array identification; prior alleged police “pressure” did not establish a suggestive system variable given the witness’ credited testimony of no pressure at the array, and omission of the § 54-1p (c) (3) (G) instruction was not suggestive per se under the totality of circumstances.
Confrontation Clause/autopsy testimony: An autopsy photograph showing a probe through neck perforations was not hearsay, and the testifying medical examiner’s interpretation based on photographs did not introduce testimonial hearsay. Even assuming some other testimony repeated information from the non-testifying autopsy examiner, any error was harmless beyond a reasonable doubt.

3. Analysis

3.1. Precedents Cited

A. Theory-of-defense instructions and the evidentiary threshold

State v. Ashby: Supplies the governing instruction standard—requested instructions must be accurate, relevant, and reasonably supported by the evidence; courts must not submit an issue to the jury when the evidence would not support it.
State v. Varszegi and State v. Lynch: Reaffirm that defendants may obtain instructions on a recognized defense even if the supporting evidence is “weak or incredible,” but only after meeting an initial burden to inject the defense with sufficient evidence.
State v. Terwilliger: Supports the requirement that the defendant produce evidence to justify the instruction.
State v. Singh and State v. Copas: Reinforce that argument and inference must be grounded in evidence, not conjecture or facts not in evidence.
State v. Ortega and Diaz v. Commissioner of Correction: Underpin the court’s refusal to review unpreserved variants of the investigative-inadequacy claim (avoid “trial by ambuscade” and adhere to preservation rules).
State v. Gomes: Serves as the contrasting example where an investigative inadequacy instruction was appropriate because the defense introduced concrete evidence of specific investigative lapses. The court used Gomes to highlight what was missing here: an evidentiary foundation.
State v. Gomes (also): Provides the doctrinal point that “conducting a thorough, professional investigation is not an element of the government’s case.”

B. Identification law after Harris: system variables, estimator variables, and the role of § 54-1p

State v. Harris: The centerpiece for Connecticut state constitutional identification analysis. Harris adopts a burden-shifting framework (influenced by New Jersey) and distinguishes “system variables” from “estimator variables.”
State v. Henderson: The New Jersey decision whose procedural approach Harris embraces; cited for the proposition that when a defendant’s suggestiveness claim proves baseless, the court can end the suppression inquiry without delving into estimator variables (leaving reliability to the jury).
State v. White: Clarifies Harris’ burden shifting and reiterates that absent evidence of a suggestive procedure, estimator-factor disputes generally go to weight, not admissibility.
State v. Guilbert: Source of the “eight estimator variables” used to assess reliability once a suggestive procedure is shown.
State v. Outing: Provides the “totality of the circumstances” lens for suggestiveness and emphasizes scrutinizing both array construction and police conduct that might direct a witness to a suspect.
State v. Marquez: Central to rejecting per se suggestiveness from missing warnings; also emphasizes the importance (but non-dispositive nature) of “might or might not be present” and “not compelled” warnings.
State v. Ledbetter and State v. Sanchez: Explain “relative judgment” research and why warnings matter, while rejecting an automatic suppression rule for missing warnings.

C. Confrontation Clause, hearsay, and substitute experts after Smith v. Arizona

Crawford v. Washington and Pointer v. Texas: Establish the modern Confrontation Clause framework, its testimonial focus, and incorporation against the states.
State v. Slater and State v. Walker: Confirm that the Confrontation Clause targets testimonial hearsay and frame the threshold questions (hearsay first, then testimonial character).
State v. Robles: Connecticut authority approving testimony from a medical examiner who did not perform the autopsy when the testimony is based on autopsy photographs rather than the report’s assertions.
Smith v. Arizona: The defendant’s principal federal authority; the court distinguished Smith because no testimonial out-of-court statements of the absent autopsy examiner were introduced through the testifying examiner regarding the disputed point.
State v. Merriam, State v. Johnson, and State v. Campbell: Provide the harmless-beyond-a-reasonable-doubt framework for constitutional errors, including Confrontation Clause violations.

3.2. Legal Reasoning

A. Investigative inadequacy instruction: evidence and preservation

The court’s approach is structurally simple: the instruction is permissible only when tied to evidence of particular investigative omissions, not to the abstract idea that police might have done more. Applying State v. Ashby and State v. Lynch, the court held the defendant did not meet the “initial burden” to inject investigative inadequacy into the case as a factual matter.

Two doctrinal moves drove the outcome:

Preservation: The appellate claim about responding officers’ on-scene choices was not presented as the basis for the instruction at the charge conference, so the court declined review under State v. Ortega and Diaz v. Commissioner of Correction.
No record evidence for the remaining theories: For “failure to investigate another suspect” and “failure to perform victimology,” the defense pointed to an absence of testimony that these steps were done. The court rejected that as a legally insufficient foundation: an instruction cannot rest on speculation, and the state is not required to prove “adequacy” of investigation as an element.

The opinion thereby tightens the practical requirement for using Connecticut Criminal Jury Instruction 2.6-13 (“Adequacy of Police Investigation”): the defendant must identify evidence of specific, articulable omissions (as in State v. Gomes), not merely argue that the state failed to present affirmative proof that the police checked every lead.

B. Identification suppression: threats, statutory warning omissions, and “suggestiveness” as a gateway

Under State v. Harris, the threshold question is whether the defendant produced “some evidence” that a “system variable” (i.e., something within law enforcement’s control, such as the lineup procedure) undermined reliability. Only then does the court move to the state’s reliability showing and the defendant’s ultimate “very substantial likelihood of misidentification.”

The defendant attempted to establish suggestiveness through a two-part theory: earlier threats from Meriden detectives (pressure to identify “someone—anyone—or be charged”) and the Manchester administrator’s omission of § 54-1p (c) (3) (G) (“police will continue to investigate regardless”). The court rejected both as gateways to suppression:

Prior threats as “carryover” coercion: The court credited the witness’ testimony that at the array she felt “absolutely no pressure,” was reassured it was fine not to identify anyone, and did not select due to coercion. That made the defendant’s asserted system-variable claim “baseless” within the meaning of State v. Henderson, allowing the court to stop without a full estimator-variable hearing.
Omission of § 54-1p (c) (3) (G): Consistent with State v. Marquez and Harris’ rejection of per se exclusion for § 54-1p violations, the court treated the missing instruction as a relevant circumstance, not an automatic taint. The administrator provided the core anti-suggestiveness warnings (perpetrator may or may not be present; do not feel compelled; exclude innocent persons), there was no evidence the witness believed the investigation hinged on her selection, and the procedure was otherwise “textbook” double-blind and sequential.

The deeper doctrinal point is that suggestiveness remains a gatekeeper. Harris modernized what courts do after suggestiveness is shown, but it did not convert every statutory deviation into constitutional suggestiveness. As a result, statutory noncompliance may inform the totality analysis, but suppression still turns on whether police conduct or procedure actually directed the witness toward the suspect.

C. Confrontation Clause: photographs as non-statements; Smith’s limits; harmless error

The court separated the confrontation inquiry into the steps emphasized by State v. Walker: is it hearsay, and if so, is it testimonial? The defendant’s principal attack—on the probe photograph and testimony interpreting it—failed at step one.

The court reasoned that the probe photograph was not a “statement” because it did not constitute nonverbal conduct “intended as an assertion.” It merely depicted a body with a probe; it did not itself “say” why the probe was inserted, how it was manipulated, or what conclusion the non-testifying examiner drew. The testifying examiner offered her own interpretation based on the photograph and, critically, did not convey the absent examiner’s conclusions. That preserved the distinction (also reflected in State v. Robles) between: (a) an expert’s independent interpretation of objective materials (e.g., photographs) and (b) a surrogate expert repeating an absent analyst’s testimonial assertions.

The court then explained why Smith v. Arizona did not control: Smith forbids the state from introducing an absent analyst’s testimonial statements through a surrogate—whether directly or as “basis” testimony. Here, by the court’s account, no such testimonial statement about the probe/neck wounds was introduced through the witness.

Finally, even assuming some other testimony amounted to inadmissible testimonial hearsay (e.g., “White recovered a bullet,” “two liters of bleeding”), the court found any error harmless beyond a reasonable doubt under State v. Merriam and State v. Johnson: cause of death was not disputed, the defense’s “third bullet” alternative-perpetrator theory was speculative and time-compressed, and the state’s evidence (video, DNA, identifications) was overwhelming, paralleling the harmlessness conclusion in State v. Campbell.

3.3. Impact

Investigative inadequacy instructions will be harder to obtain without a developed record: Villanueva signals that defendants must elicit concrete testimony or exhibits showing particular investigative omissions. Mere “absence of proof that police did X” will not justify Instruction 2.6-13, and unpreserved “new” inadequacy theories on appeal are unlikely to be reviewed.
§ 54-1p violations remain contextual, not dispositive: Even a conceded failure to provide a mandated instruction (here, § 54-1p (c) (3) (G)) does not automatically establish constitutional suggestiveness. The decision reinforces an ad hoc, totality-of-circumstances analysis rooted in State v. Marquez, with Harris serving primarily as the framework once a suggestive system variable is shown.
Post-Smith Confrontation Clause litigation will pivot on “what came in for its truth”: Villanueva illustrates how courts may cabin Smith by characterizing testimony as independent interpretation of nonhearsay materials (photographs) rather than relayed assertions from an absent examiner. Expect future disputes to focus on whether visual materials (photos, diagrams, annotations) embed “assertions” and whether the testifying expert implicitly transmits the non-testifying examiner’s conclusions.

4. Complex Concepts Simplified

Investigative inadequacy instruction: A jury instruction telling jurors they may consider specific investigative lapses in deciding whether the state proved guilt beyond a reasonable doubt. Courts require evidence of a real lapse, not speculation.
System variables vs. estimator variables (Harris): System variables are police-controlled factors (e.g., double-blind administration, sequential display, warnings). Estimator variables are circumstance-driven factors (e.g., stress, lighting, weapon focus, time delay). Under Harris, the defendant must first show some evidence of a problematic system variable to get suppression-style judicial screening of reliability.
Double-blind sequential array: “Double-blind” means the administrator does not know who the suspect is; “sequential” means photos are shown one at a time—both reduce unintentional cues and “relative judgment.”
Hearsay and the Confrontation Clause: The Confrontation Clause restricts admission of testimonial hearsay—out-of-court statements offered for their truth—when the declarant is not subject to cross-examination. If something is not a “statement” (e.g., a photograph without assertive content), it is not hearsay and usually does not trigger confrontation analysis.
Harmless beyond a reasonable doubt: Even if a constitutional error occurred, a conviction stands if the reviewing court is convinced beyond a reasonable doubt the error did not contribute to the verdict.

5. Conclusion

State v. Villanueva is a doctrinal consolidation decision with practical consequences. It holds the line on evidentiary predicates for defense-favorable jury instructions, confirms that statutory identification-procedure missteps under § 54-1p do not create per se constitutional suggestiveness, and delineates a post-Smith v. Arizona path for admitting substitute medical examiner testimony grounded in autopsy photographs rather than an absent examiner’s assertions. The broader signal is institutional: Connecticut appellate review will demand record-based specificity—both to obtain investigative inadequacy instructions and to establish the “suggestiveness” gateway for suppression under Harris.