188 Conn. App. 813
Conn. App. Ct.2019Background
- Kevan Simmons was convicted by a jury of two counts of first‑degree assault and firearm offenses for a March 28, 2013 shooting; he appealed.
- The state’s key witnesses included shooting victims George Harris and Joaquin Cedeno, and Detective Reggie Early, whose conduct and interrogation produced a confession attributed to Simmons.
- Harris gave in‑custody recorded statements inconsistent with his in‑court testimony; the state used a recorded phone call to impeach Harris but did not admit the recording as substantive evidence.
- The prosecutor and Harris entered an immunity agreement before Harris testified that granted broad transactional/use immunity and, according to the state, included a promise not to prosecute Harris for perjury related to his testimony; the trial court accepted the agreement.
- After trial Simmons raised: (1) prosecutorial improprieties in closing argument; (2) a Brady claim based on nondisclosure of an internal affairs report about Detective Early; and (3) that the immunity promised to Harris (including for perjury) was improper and required reversal.
Issues
| Issue | Plaintiff's Argument (State / Prosecution) | Defendant's Argument (Simmons) | Held (concurring opinion) |
|---|---|---|---|
| Prosecutorial impropriety in summation (denigration, opinion, use of tape statements substantively, appeals to emotion) | Most remarks were fair comment on evidence; any misstatements were harmless in light of instructions and other evidence | Prosecutor improperly used recorded statements substantively, denigrated defense, expressed opinion, appealed to emotions; deprived Simmons of fair trial | Majority: found improper use of Harris’s recorded statements in argument but overall not prejudicial; concurrence: agrees most claimed improprieties did not require reversal except substantive use of taped statements was improper but not outcome‑determinative |
| Brady nondisclosure of Hartford PD internal affairs report about Detective Early | Report not material to guilt; state conceded nondisclosure but argued report cumulative and would not change outcome | Failure to disclose deprived Simmons of impeachment material on Early, impacting the confession and credibility | State conceded suppression; concurring opinion: report was favorable (impeachment) but not material under Brady given other strong evidence and prior impeachment of Early; Brady claim fails |
| Immunity agreement with Harris (including perjury immunity): legality and plain error/structural error | State conceded grant to not prosecute perjury was improper/defective but argued error was not structural and harmless beyond a reasonable doubt | Immunization of anticipated perjury violated § 54‑47a and public policy; court’s acceptance of agreement was plain error and structural — requires reversal | Concurrence: court’s acceptance and implementation of overbroad immunity (permitting anticipated perjury) was plain error that constituted structural error; reversal and new trial required (no need for supervisory‑authority remedy) |
| Whether appellate supervisory authority needed to order reversal/remand | State: error acknowledged but harmless; supervisory action unnecessary | Defendant sought reversal and supervisory relief due to prosecutorial and immunity misconduct | Concurrence: supervisory authority unnecessary because structural plain error alone mandates reversal and a new trial |
Key Cases Cited
- State v. Whelan, 200 Conn. 743 (Conn. 1986) (prior written inconsistent statements may be used substantively in narrow circumstances)
- State v. Woodson, 227 Conn. 1 (Conn. 1993) (tape‑recorded prior statements may be admitted substantively if authenticated and reliable)
- Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (prosecution must disclose favorable, material evidence to the defense)
- State v. Giraud, 258 Conn. 631 (Conn. 2001) (immunity may not license lying; perjury immunity is forbidden)
- State v. Murray, 254 Conn. 472 (Conn. 2000) (certain statutory trial defects constitute structural error not subject to harmless‑error review)
- Weaver v. Massachusetts, 137 S. Ct. 1899 (U.S. 2017) (explains rationales for structural error analysis)
- State v. McClain, 324 Conn. 802 (Conn. 2017) (plain error doctrine and its narrow application)