State v. Collymore, 334 Conn. 431

Background

On January 18, 2010 Collymore, Vance, and Bugg drove to an apartment complex and attempted a robbery; the victim, John Frazier, was shot and died.
Bugg, Vance, and Jabari Oliphant gave pretrial statements to police incriminating Collymore; each later recanted on direct examination at trial. The court admitted their prior statements for substantive purposes under State v. Whelan.
The state granted those three witnesses immunity under Conn. Gen. Stat. § 54-47a for testimony during the state’s case-in-chief. After they recanted, the defense later called them, but the prosecutor refused to extend immunity to their testimony in the defense case. The trial court said the law was unclear and told the witnesses to follow counsel’s advice; they invoked the Fifth and refused to answer some defense questions.
Collymore was convicted of felony murder, attempted robbery, conspiracy to commit robbery, and criminal possession of a firearm. He appealed, arguing (1) the state improperly revoked/failed to extend immunity and thereby violated his due process and compulsory process rights, and (2) two family witnesses made improper first-time in-court identifications in light of State v. Dickson.
The Appellate Court affirmed; the Connecticut Supreme Court granted certification and affirmed the Appellate Court: it held any statutory error (if immunity was improperly not extended) was not a constitutional violation and that any improper first-time in-court identifications were harmless beyond a reasonable doubt.

Issues

Issue	State's Argument	Collymore's Argument	Held
Whether a prosecutor’s grant of immunity to prosecution witnesses under § 54-47a must extend to those witnesses’ testimony when later called by the defense	Immunity need not extend to defense testimony; the state simply refused to grant additional immunity for matters beyond the original grant	Once granted, immunity should extend through the trial and the state’s failure to extend/revocation violated § 54-47a and Collymore’s constitutional rights	Even if the state violated § 54-47a by not extending immunity, that statutory error was not constitutional: Collymore failed to show deprivation of compulsory process or due process because prevented testimony was cumulative or witnesses validly invoked the Fifth on some matters and were not driven off stand by coercion
Whether prosecutorial misconduct/effective-defense theory required extension of immunity (i.e., discriminatory grant to gain tactical advantage)	No prosecutorial misconduct; defendant cannot show testimony would have been material, noncumulative, and unobtainable elsewhere	State acted discriminatorily to deny defense critical, noncumulative exculpatory testimony	Theories exist but impose a heavy burden; Collymore did not prove misconduct or noncumulativeness — record did not show what new, noncumulative testimony would have been elicited
Whether the prosecutor’s statements and the court’s warnings coerced witnesses and unlawfully drove them from the stand	No coercive threats were made; the court fairly warned witnesses about unsettled law and they consulted counsel	Warnings plus state action intimidated witnesses and substantially interfered with Collymore’s right to present a defense	Warnings were not coercive in context: no threats of perjury prosecution or plea revocation, witnesses had counsel, and conduct did not substantially interfere with testimony
Whether first-time in-court identifications by victim’s mother and brother violated Dickson and required reversal	Dickson inapplicable because identity was not at issue for most counts and identifications were unsolicited/unanticipated; if Dickson applies any error was harmless	Both witnesses made first-time in-court IDs that should have been prescreened under Dickson and their testimony harmed Collymore	Dickson applies to first-time in-court IDs, but identity was not at issue for felony murder/robbery counts (Collymore placed himself at scene). Identity was at issue only for the firearm count; even so the improper IDs were harmless beyond a reasonable doubt given corroborating Whelan statements and other evidence

Key Cases Cited

State v. Dickson, 322 Conn. 410 (Conn. 2016) (new rule: first-time in-court identifications that lack a prior nonsuggestive out-of-court ID must be prescreened; retroactivity framework for pending appeals)
State v. Whelan, 200 Conn. 743 (Conn. 1986) (admission of prior inconsistent statements for substantive purposes)
State v. Holmes, 257 Conn. 248 (Conn. 2001) (defendant’s right to compulsory process and circumstances when immunity may be constitutionally required)
State v. Kirby, 280 Conn. 361 (Conn. 2006) (describes prosecutorial-misconduct and effective-defense theories requiring immunity; heavy burden on defendant)
State v. Giraud, 258 Conn. 631 (Conn. 2001) (application of immunity/compulsory-process analysis where immunity granted at one stage but not extended later)
Rock v. Arkansas, 483 U.S. 44 (U.S. 1987) (limitations on defendant’s right to present certain testimony; other legitimate trial interests may limit defense presentation)
Webb v. Texas, 409 U.S. 95 (U.S. 1972) (judicial or prosecutorial intimidation that drives a witness off the stand can violate due process)
State v. Person, 215 Conn. 653 (Conn. 1990) (a witness who invokes Fifth on all questions cannot be called solely to assert privilege)