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                STATE v. SINCLAIR—DISSENT

   BEACH, J., concurring in part and dissenting in part.
I agree with much of the majority’s well reasoned opin-
ion. I respectfully dissent, however, with respect to the
majority’s conclusion that the admission of the testi-
mony of Sergeant Gary Angon of the Waterbury Police
Department regarding the location of the inspection of
the Jeep involved in the incidents at issue was harmless.
  Angon’s testimony regarding the inspection quite
clearly was testimonial hearsay, and, thus, its admission
violated the confrontation clause. See Crawford v.
Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed.
2d 177 (2004). Angon testified that an unnamed person
from the Waterbury Police Department had acquired
information regarding the Jeep’s inspection from an
unnamed person working with the New York State
police. This information was acquired in the course of
Angon’s investigation of the crime under circumstances
that obviously contemplated its use in the prosecution.
The defendant, Casey Sinclair, did not have an opportu-
nity to cross-examine the unnamed person who
requested this information, nor did he have the opportu-
nity to cross-examine the unnamed person who
responded. The information reportedly gathered from
the New York police—that the Jeep’s registration num-
ber showed that it had been inspected at a garage adja-
cent to the defendant’s business—was offered by the
state at trial to prove the truth of the matter asserted.
The admission of Angon’s testimony relaying the infor-
mation about the inspection, then, quite clearly violated
the defendant’s rights under the confrontation clause
of the sixth amendment.
   The majority recognizes the problem and assumes,
for the purpose of analysis, that the confrontation
clause was violated, but then concludes that the intro-
duction of the evidence was harmless. An examination
of the record compels me to conclude that the state
has not met its burden to show that the admission of
the testimony was harmless beyond a reasonable doubt.
As the majority notes, the prosecution sought to prove
guilt under a theory of constructive possession, because
the narcotics were found in a Jeep that was not in the
defendant’s exclusive possession. Under this theory, the
prosecution was required to prove that ‘‘the defendant
knew the character of the substance, knew of its pres-
ence and exercised dominion and control over it.’’
(Internal quotation marks omitted.) State v. Martin, 285
Conn. 135, 149, 939 A.2d 524, cert. denied, 555 U.S. 859,
129 S. Ct. 133, 172 L. Ed. 2d 101 (2008).
  It was not necessary for the state to show ownership
or exclusive control of the Jeep, and the defendant
could have been found guilty, of course, without the
evidence in question. But it is undeniable, from the
record in this case, that the prosecutor used the inferred
close connection between the defendant and the Jeep to
full advantage. In his closing argument, the prosecutor
repeatedly referred to the location of the Jeep’s inspec-
tion in an effort to establish that the defendant knew
about and exercised dominion and control over the
heroin hidden in the Jeep and that the defendant fit
the profile of a drug dealer.
   The prosecutor argued, ‘‘I have to prove three things.
That [the defendant] was in possession of heroin, he
knowingly possessed the heroin, [and] he possessed it
with intent to sell.’’ In presenting his argument on the
second element, the prosecutor began by arguing:
‘‘Knowingly possessed. It’s his Jeep. There’s some dis-
pute about that. . . . Winsome Lawrence testified nine
times she came to Connecticut . . . every time he
picked her up in that Jeep. There’s also the evidence
about the Jeep that links that Jeep to being inspected
at Sinclair Enterprises, his garage right next to his
business.’’ (Emphasis added.)
   The prosecutor stressed not only the elements of
the crime, but also that the defendant’s behavior was
consistent with that of a drug dealer: he ‘‘want[ed] to
separate himself from the drugs,’’ a behavior consistent
with that of a narcotics dealer, but ‘‘there was a mistake
. . . to register a car in New York, it has to go through
an inspection, and the inspection for the car was done
at [the defendant’s] place of business. . . . There’s a
connection, right there, to [the defendant]. He didn’t
separate himself good enough.’’
   The state argues that Angon’s testimony likely did
not influence the jury in reaching its judgment because
‘‘the state’s case against [the defendant] was strong,
independent of Angon’s testimony about the inspection
location.’’ A review of the record, however, shows that
the state’s evidence was less than overwhelming on the
question of whether the defendant knew about and
exercised dominion and control over the 10,000 bags of
heroin ultimately found in the Jeep. The direct evidence
regarding the defendant’s guilt was primarily Law-
rence’s testimony; the state conceded that ‘‘the critical
issue in the case was the credibility of both Lawrence
and the defendant.’’ Lawrence testified that the defen-
dant owned the Jeep, that he had picked her up in the
Jeep on several occasions, and that she had seen him
open the Jeep’s center console, pull a string, and
retrieve two bags of heroin from inside. The defendant,
by contrast, testified that Lawrence owned the Jeep
and that he did not know that there were drugs hidden
in the car. On the issue of knowledge about and domin-
ion and control over the Jeep’s contents, Angon’s testi-
mony regarding the inspection was the only
documentary and at least superficially objective evi-
dence tending to suggest that Lawrence’s testimony was
more likely true than the defendant’s testimony. The
testimonial hearsay was not cumulative and was not
corroborated by evidence other than Lawrence’s tes-
timony.
   I stress that the hearsay, surely relevant to the issue
of constructive possession, was used to perhaps greater
effect to show more generally that the defendant was
a drug dealer. A theme of the prosecution was that the
defendant created a distance between the actual dealing
and himself, so that others would be blamed if the
enterprise faltered. In pursuit of that strategy, he ‘‘used’’
Lawrence and a false registration for the Jeep.1 There-
fore, the admission of Angon’s testimony was not harm-
less beyond a reasonable doubt.
  If the error were merely evidential, there may be a
good argument that the defendant had not proved harm.
But on the record in this case, I respectfully cannot
agree that the error was harmless beyond a reasonable
doubt. The prosecutor used the evidence to hammer
home the defendant’s nefarious ways.
  Accordingly, I would reverse the judgment of the trial
court and remand the case for a new trial.2
   1
     The prosecutor argued: ‘‘The tan Jeep Liberty. His car. Maybe not regis-
tered to his name, but why not? He wants to separate himself from the
drugs. Let’s talk about the connections with the tan Jeep Liberty to [the
defendant]. It’s if—if you put it in some—well, it’s in someone else’s name.
But there was a mistake. Because there—to register a car in New York, it
has to go through an inspection, and the inspection for the car was done
at [the defendant’s] place of business. . . .
   ‘‘So, where’s it inspected? Whose car goes there for service? Winsome
Lawrence because [the defendant] sent her there. . . . Well, that’s conve-
nient, it’s right next door. And Winsome Lawrence said it was his garage,
okay, and that’s where the inspection for the Jeep was done. There’s a
connection, right there, to [the defendant]. He didn’t separate himself good
enough. . . .
   ‘‘What is this information about the car from [the defendant]; it’s consistent
with a drug dealer trying to separate himself from the drugs in that car. It’s
consistent in the manner in ways in which they operate. What connection
does Winsome Lawrence have to the car? [The defendant.] She testified at
length, it’s not her car; the comment about the Jeep, she testified at length,
it wasn’t her car, that she owned a black Oldsmobile . . . .
                                       ***
   ‘‘He wants to use her again; don’t let him do it. His Jeep Liberty, he’s
dropping a car, everything he does is consistent with how narcotics dealers
operate at that level. It’s his heroin, it’s his money, and evidence shows
beyond a reasonable doubt he’s guilty of this charge.’’
   2
     I would not reach the claim of prosecutorial impropriety because I would
not anticipate that the conduct would occur on retrial. I concur with the
majority as to part III of its opinion.
