STATE v. KEVAN SIMMONS
Appellate Court of Connecticut
188 Conn. App. 214
BEAR, J., concurring in part and concurring in the judgment.
CONCURRENCE
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STATE v. SIMMONS—CONCURRENCE
BEAR, J.,
I agree with the
Before addressing the defendant‘s claim of plain error, I discuss the other claims raised by the defendant in support of his argument that the conviction should be reversed to determine whether reversal is warranted on a basis separate from plain error review.
I accept the facts as set forth in the majority opinion. Additional facts are set forth as relevant to the claims that are addressed in this concurring opinion.
I
PROSECUTORIAL IMPROPRIETY
The defendant first claims that the prosecutor violated his rights to due process and a fair trial when he committed several improprieties during closing argument. Specifically, the defendant claims that the prosecutor improperly (1) denigrated defense counsel; (2) asked the jury to use impeachment evidence substantively; (3) expressed his opinion about the credibility of two witnesses; (4) appealed to the jurors’ emotions; and (5) injected extraneous matters into the trial. The state argues that the prosecutor did not commit any improprieties during closing argument and that, even if he did, they did not deprive the defendant of his rights to due process and a fair trial.
Although the defendant did not object to the purported improprieties he now challenges on appeal, “under settled law, a defendant who fails to preserve claims of prosecutorial [impropriety] need not seek to prevail under the specific requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test.” (Internal quotation marks omitted.) State v. Payne, 303 Conn. 538, 560, 34 A.3d 370 (2012).
“In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. . . . In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry.” (Internal quotation marks omitted.) State v. Campbell, 328 Conn. 444, 541-42, 180 A.3d 882 (2018).
“As we previously have recognized, prosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. . . . When making closing arguments to the jury, [however] [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state‘s advocate, a prosecutor may argue the state‘s case forcefully, [provided the argument is] fair
With the foregoing in mind, I address each of the defendant‘s claims of prosecutorial impropriety in turn to determine whether any improprieties occurred.
A
The defendant first claims that the prosecutor improperly denigrated defense counsel during his closing argument. Specifically, he claims that the prosecutor‘s remarks improperly implied that defense counsel was employing standard tactics used in all trials. The state counters that the prosecutor‘s comments were proper because they challenged the theory of the defense.
“It has been held improper for the prosecutor to impugn the role of defense counsel. . . . In particular, [i]t is improper for a prosecutor to tell a jury, explicitly or implicitly, that defense counsel is employing standard tactics used in all trials, because such an argument relies on facts not in evidence and has no bearing on the issue before the jury, namely, the guilt or innocence of the defendant. . . . There is a distinction [however] between argument that disparages the integrity or role of defense counsel and argument that disparages a theory of defense. . . .
“Closing arguments of counsel . . . are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. . . . [S]ome leeway must be afforded to the advocates in offering arguments to the jury in final argument. . . . [C]ounsel must be allowed a generous latitude in argument . . . .” (Citations omitted; internal quotation marks omitted.) State v. Fasanelli, 163 Conn. App. 170, 180, 133 A.3d 921 (2016).
In Fasanelli, the defendant argued “that the prosecutor improperly denigrated defense counsel by implying that defense counsel was being deceitful and using standard defense tactics” during his closing argument Id., 181. This court concluded, however, that the challenged comments, when read in context, “did not attack defense counsel; rather, each of the challenged comments attacked the theory of the defendant . . . .” Id., 182. Because the prosecutor‘s comments were based on evidence in the record and attacked only the theory of the defense, the court concluded that they were proper. Id.
In the present case, the prosecutor stated the following during his initial closing argument: “Now, [defense counsel‘s] going to get up here, I assume, [and say] that the Hartford police are lying, [Detective] Reggie Early lied, you know, that was a deceitful tactic that he used, you know, that‘s—if he lies that way, why should you believe any of his testimony? Whatever.
Similarly to Fasanelli, when read in context these comments are clearly based on evidence in the record and attack the apparent theory of the defense, as shown during defense counsel‘s cross-examination. The prosecutor‘s comments were directed to defense counsel‘s attempts during trial to attack the credibility of the Hartford police, particularly, Detective Early‘s testimony regarding the manner in which he secured the defendant‘s confession. The defendant‘s apparent theory was that, because Early had secured the defendant‘s confession by using a fabricated confession from Harris, he must not have been truthful in the remainder of his testimony. In light of this defense theory, the prosecutor‘s comments in attacking it were not improper.
B
The defendant next claims that the prosecutor improperly made substantive use of Harris’ tape-recorded phone conversation with his mother that was recorded by the Department of Correction in accordance with its usual policy. Some of Harris’ statements were admitted by the court as prior inconsistent statements to impeach his trial testimony. Subsequently, during the prosecutor‘s initial closing argument, the prosecutor referenced the tape-recorded conversation, which had not been admitted as a full exhibit for all purposes, and then repeated to the jury what Harris had said to his mother during the phone call for the truth of the statements. In particular, the prosecutor stated:
“One point in [Harris‘] testimony that he‘s talking to his mom: First, I think I am being charged with everything [the defendant] is. Cop told me the warrant is for not cooperating, and I‘m like, yeah, I‘ll take that. Makes sense. If you woulda seen the video they showed me, I coulda got charged with the same thing [the defendant] got charged with. They showed me the video. . . . They showed everything. When I sat down, when I couldn‘t move, they showed [the defendant] walked up to me. Then they showed him run off. Then they show this girl run out, tie my leg up. They showed the whole thing. . . .
“He testified that [he and the defendant were] arrested at the same time, that they were at [the] Hartford lockup at the police department, and they were placed in cells next to each other. They smacked [the defendant] with the charges right there. They had us together. They really put us together and this ‘n’ shot me. . . . And then [Harris] laughs. I‘m in a holding cell. I don‘t know how [the defendant] seen me. I‘m asleep. [The defendant] seen me. They put [the defendant] in a cell like two cells down. It‘s like, one, two in the morning. All I hear is: George. George. Come on, man. I know you hear me. I know you hear me. I just seen you. I just seen you. I‘m like, this ‘n’ really trying to talk to me? I‘m in jail ‘cause of him right now ‘cause he shot me in the leg.
“That‘s testimony, ladies and gentlemen. That‘s not given to police or the state‘s attorney‘s office.” (Emphasis added.)
Our Supreme Court has adopted a rule “allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross examination.” State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). In Whelan, the court also held that “[p]rior oral statements of a witness, easily
In Woodson, the state had played a tape recording of a witness’ statement to police to show its inconsistency with the witness’ in-court testimony, in which he had disavowed any knowledge of the tape-recorded statements. See State v. Woodson, supra, 227 Conn. 19. Subsequently, the trial court admitted the taped statement into evidence and had portions of it played for the jury. Id. Our Supreme Court ultimately concluded that the trial court properly admitted the prior inconsistent statement for substantive purposes. Id., 23. In the present case, although the state similarly played the tape-recorded statement made by Harris to his mother to show its inconsistency with his in-court testimony that he did not remember who shot him, the state did not attempt to admit the tape recording into evidence as a full exhibit. Rather, the state made clear that the tape-recording was not being offered for its truth, but only to show its inconsistency with Harris’ testimony. Moreover, the court made clear in its instructions to the jury, after the tape recording was played, that the jurors should consider it only as it related to his credibility and that it was not substantive evidence.
As such, the prosecutor‘s two references in closing argument to Harris’ statements in the tape recording for their truth were improper because the statements had not been previously admitted as substantive evidence. The prosecutor, therefore, improperly utilized Harris’ recorded statements in his closing argument.
C
The defendant next claims that the prosecutor improperly expressed his opinion about the credibility of two of the state‘s witnesses, Harris and Joaquin Cedeno, both of whom were victims of the shooting.
“[A] prosecutor may not express his [or her] own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor‘s special position. . . . However, [i]t is not improper for the prosecutor to comment upon the
During his initial closing argument, the prosecutor made the following comments: “You can listen back to George Harris’ testimony. It was painful. He would listen to part of the tape. Is that you? Yes it is. And did you say that? And right after listening to the tape, he would say no, okay. He was an obstructionist.” In addition, during his initial closing argument, the prosecutor stated: “But again, the problem is, [the police] are dealing with obstructionists like Joaquin Cedeno and George Harris. Complete obstructionists.” During his rebuttal closing argument, the prosecutor stated: “I have to comment on Mr. Cedeno and Mr. Harris. The only thing that they‘re up here for, what I put them on for—because they are obstructionists—just to let you know that they got shot.” Finally, during rebuttal the prosecutor stated: “If Harris and Cedeno want to be obstructionists to our criminal justice system, let it be. So be it.”
The prosecutor‘s comments were not improper. The comments were based on Harris’ and Cedeno‘s testimony adduced at trial and reflect an effort on the part of the prosecutor to invite the jury to draw the reasonable inference that their testimony regarding the incident lacked credibility. See State v. Richard W., 115 Conn. App. 124, 135–36, 971 A.2d 810 (“[i]t is without question that a prosecutor may fairly comment on evidence and the reasonable inferences to be drawn therefrom that lead the jury to a conclusion as to the credibility of witnesses” [internal quotation marks omitted]), cert. denied, 293 Conn. 917, 979 A.2d 493 (2009). Specifically, because the prosecutor had established during the trial that Harris and Cedeno were friends and that the defendant and Harris were friends, the jury could have drawn a reasonable inference from Harris’ impeachment by his prior inconsistent statements to his mother that he was lying to obstruct the prosecution of the defendant and to protect himself, Cedeno, and the defendant. The prosecutor‘s comments that Harris and Cedeno were obstructionists, therefore, were not based solely on the prosecutor‘s personal opinion, but on the plausible motives that they may have had to protect themselves and the defendant. See State v. Stevenson, 269 Conn. 563, 584-85, 849 A.2d 626 (2004); id., 585 (“[i]t is not improper for a prosecutor to remark on the motives that a witness may have to lie” [internal quotation marks omitted]); see also State v. Thompson, 266 Conn. 440, 466, 832 A.2d 626 (2003) (same). The prosecutor, therefore, did not improperly express his personal opinion regarding the credibility of Harris and Cedeno.
D
The defendant next claims that the prosecutor improperly (1) appealed to the jurors’ emotions and (2) injected extraneous matters into the trial.
“It is well established that [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . [S]uch
In addition, “[a] prosecutor, in fulfilling his duties, must confine himself to the evidence in the record . . . [T]he privilege of counsel in addressing the jury . . . must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts not in evidence, or to present matters which the jury [has] no right to consider.” (Citation omitted; internal quotation marks omitted.) State v. Barry A., supra, 145 Conn. App. 605.
In the present case, the defendant takes issue with the following statements made by the prosecutor during his rebuttal closing argument:
“If Harris and Cedeno want to be obstructionists to our criminal justice system, let it be. So be it. But the state is not going to sit back and let people like Cedeno and Harris dictate that if they don‘t want to come into the court, we‘re not going to prosecute. They don‘t decide the criminal justice system, okay. We‘re not going to sit back just because I don‘t care and I‘m not saying who did it. The state‘s not going to sit back and say, okay, that‘s fine, move on. The state‘s going to press on by other means.
“Does the state have an interest in the case? You bet we do. Two people were critically injured, shot by this defendant who illegally possessed a firearm, who intentionally and with extreme indifference to human life fired it in a residential neighborhood. A community, regardless of a person‘s ethnic or economic background, has a right, a privilege, to not be subjected to this violent, criminal conduct.”
The defendant argues that the statements improperly urged the jurors to find him guilty to ensure that Harris and Cedeno would not get away with manipulating the criminal justice system through their “deliberate obstructionism,” and to protect the ethnically diverse and economically disadvantaged community in which they lived. As previously set forth in part I C of this concurring opinion, the prosecutor‘s comments referring to Harris and Cedeno as obstructionists were not improper because they were appropriately based on evidence adduced during trial. Moreover, the prosecutor‘s comments referencing the community were not directed at urging the jury to find the defendant guilty because of the location of the incident, but rather, urged the jury to remember that all communities have a general right to be free from the violence that occurred in this case. The prosecutor did not state that there was a greater reason to convict the
E
Because the prosecutor committed an impropriety by making substantive use of Harris’ prior oral inconsistent statements during his closing argument, the question of whether that established impropriety “so infected the trial with unfairness as to make the resulting conviction a denial of due process” must be examined. (Internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987).
“In determining whether prosecutorial [impropriety] was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state‘s case.” (Citations omitted.) Id., 540. “[T]he burden is on the defendant to show, not only that the remarks were improper, but also that, considered in light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process.” State v. Payne, supra, 303 Conn. 563.
As to whether the prosecutor‘s improper references to Harris’ prior inconsistent statements were invited by defense counsel, the record reflects that the references were made during the prosecution‘s initial closing argument and not in response to statements that defense counsel made in his closing argument. Thus, these comments could not have been invited by the defendant. See State v. Ceballos, 266 Conn. 364, 409-10, 832 A.2d 14 (2003) (“[T]he state‘s attorney‘s improper comments during summation, were not invited by the arguments of defense counsel. . . . As the defendant correctly points out, the state‘s attorney made the challenged comments during his initial summation, and not during the state‘s rebuttal to the defendant‘s closing argument.” [Citation omitted; emphasis in original.]). As such, this factor favors the defendant.
Additionally, the factor regarding the centrality of the impropriety to the critical issues in the case also favors the defendant. The prosecutor‘s assertion during his closing argument that Harris’ prior inconsistent statement placed the defendant at the scene of the shooting went to the defendant‘s identification as the shooter, which was a crucial issue in this case.
With respect to the frequency of the impropriety, the prosecutor‘s substantive references to Harris’ prior inconsistent statements were not frequent. The prosecutor‘s
As to the sufficiency of curative measures taken by the court, the court provided jury instructions indicating that the prosecutor was not permitted to give an opinion as to the defendant‘s guilt, that it was the role of the jury to find the facts, and that witness credibility was an issue solely for the jury. Additionally, the court instructed the jury during Harris’ direct examination that it “should consider that out-of-court evidence only as it relates to [the witness‘] credibility” and that “[i]t‘s not substantive evidence.” The court later repeated these instructions, directing the jury that it “should consider this evidence only as it relates to the credibility of the witness’ testimony, not as substantive evidence.” Furthermore, there is no suggestion in the present case that the jury failed to follow the court‘s instructions. “In the absence of a showing that the jury failed or declined to follow the court‘s instructions, we presume that it heeded them.” (Internal quotation marks omitted.) State v. Thompson, supra, 266 Conn. 485.
The defendant argues that the court‘s “general instructions were not sufficient to cure the prejudicial impact of the improper arguments.” Even if the court‘s instructions were found to be insufficient, however, “the defendant, by failing to bring [specific curative instructions] to the attention of the trial court, bears much of the responsibility for the fact that these claimed improprieties went uncured.” (Internal quotation marks omitted.) State v. Thompson, supra, 266 Conn. 483. As such, the defendant‘s failure to object to the prosecutor‘s reference to Harris’ prior inconsistent statement creates a presumption that the defendant did not view the impropriety as prejudicial enough to affect his right to a fair trial. See id., 479-80 (“[W]e consider it highly significant that defense counsel failed to object to any of the improper remarks, request curative instructions, or move for a mistrial. Defense counsel, therefore, presumably [did] not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant‘s right to a fair trial. . . . Given the defendant‘s failure to object, only instances of grossly egregious misconduct will be severe enough to mandate reversal.” [Citation omitted; emphasis added; internal quotation marks omitted.]).
Although the defendant concedes that he failed to object to the prosecutor‘s allegedly improper statements when or after they were made, he argues that the resulting impropriety was so severe as to deprive him of a fair trial. Because the prosecutor‘s substantive references to Harris’ prior inconsistent statements were not frequent, and the defendant failed to object to them, the prosecutor‘s substantive references to Harris’ prior inconsistent statements were not grossly egregious enough to warrant reversal. See id., 480 (“[g]iven the defendant‘s failure to object, only instances of grossly egregious misconduct will be severe enough to mandate reversal“); see also State v. Ross, supra, 151 Conn. App. 700 (defendant not entitled to prevail if “the claimed [impropriety] was not blatantly egregious and merely consisted of isolated
As to the strength of the state‘s case, the prosecutor conceded in his argument to the jury that the video of the shooting, which was shown to the jury and had been obtained from nearby security cameras, was not enough for the jury to return a verdict of guilty, but pointed to other ways the state could corroborate the defendant‘s identification, such as “clothes, Officer [Robert] Fogg [of the Hartford Police Department], the timing coincidence, George Harris, the video and the reasonable inferences you can draw from it, and Detective Reggie Early.” Specifically, the record reveals that Officer Fogg‘s testimony placed the defendant at the scene ten minutes after the shooting, and the video footage showed the figure who committed the shooting in clothes similar to what the defendant was wearing when he arrived on the scene. Furthermore, the prosecutor had properly impeached Harris’ credibility by presenting his prior inconsistent statements through the tape-recorded phone conversation he had engaged in with his mother. Thus, the jury reasonably could have inferred that Harris was untruthful when he responded to the question about whether the defendant was at the scene of the shooting when it occurred, but, of course, the jury could not have concluded solely from those prior inconsistent statements that the facts supporting them were true. Additionally, the defendant admitted, albeit as a result of the confession allegedly made by Harris that had been fabricated by and read to the defendant by Early, that he was the shooter. See State v. Camacho, 282 Conn. 328, 383, 924 A.2d 99 (state‘s case strong where, among other evidence, defendant admitted he had shot woman), cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007). As such, this factor favors the state.
Because the Williams factors primarily favor the state, the defendant has failed to prove that the prosecutor‘s improper substantive use of Harris’ prior inconsistent statement violated his rights to due process and a fair trial.
II
BRADY VIOLATION
The defendant next claims that the state withheld material evidence regarding Early‘s credibility in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Specifically, the defendant claims that the state deprived him of the right to cross-examine Early in regard to a Hartford Police Department internal affairs report detailing his misconduct, which was totally unrelated to the criminal incident involving the defendant and Harris, stemming from an encounter with a towing company. The state argues that the report was neither favorable nor material because it was not probative of Early‘s untruthfulness, and it was not reasonably probable that use of the report would have changed the result of this case.
The following additional facts are relevant to the disposition of this claim. The defendant alleges that, subsequent to the parties’ filing of their initial briefs, he became aware of an internal affairs report involving Early through a January 24, 2017 article published by the Journal Inquirer newspaper. The report detailed a 2007 investigation conducted by the Hartford Police Department to determine whether Early had abused his position as a police officer in attempting to convince a towing company to release his car without charging him a fee, and whether he intentionally misled the investigation by giving a false statement as to who drove him to
On February 10, 2017, after discovering the report, the defendant filed a motion for permission to file a late motion for augmentation and rectification of the record with this court in order to establish a Brady claim. Specifically, the defendant sought an evidentiary hearing to determine whether the state had failed to disclose an internal affairs investigation relating to Early at the time of trial and requested that the trial court mark the report as an exhibit. On February 27, 2017, the state filed a response to the defendant‘s motion, conceding the facts on which the defendant relied to establish his Brady claim and not opposing rectification of the record. The state further conceded that the report had been in the possession of the Hartford Police Department but had not been disclosed by the state prior to or during trial. Accordingly, the state argued that because suppression of the report was not a contested factual issue, an evidentiary hearing was not necessary. On March 15, 2017, this court granted the defendant‘s motion for permission and ordered the defendant to formally file his motion. On March 21, 2017, the defendant filed a revised motion for augmentation and rectification of the record with the trial court, in which he agreed with the state that an evidentiary hearing was not necessary due to the state‘s concessions. On November 6, 2017, the court granted the defendant‘s motion and marked the report as an exhibit.
“It is the duty of the state voluntarily to disclose material in its exclusive possession which would be exonerative or helpful to the defense . . . . The prosecution‘s duty to disclose applies to all material and exculpatory evidence that is within its possession or available to it . . . and that the prosecution knew or should have known was exculpatory. . . . To prove a Brady violation, therefore, the [defendant] must establish: (1) that the state suppressed evidence (2) that was favorable to the defense and (3) material either to guilt or to punishment. . . . If the [defendant] fails to meet his burden as to one of the three prongs of the Brady test, then we must conclude that a Brady violation has not occurred.” (Citations omitted; internal quotation marks omitted.) Peeler v. Commissioner of Correction, 170 Conn. App. 654, 687–88, 155 A.3d 772, cert. denied, 325 Conn. 901, 157 A.3d 1146 (2017). Moreover, “[w]hether the [defendant] was deprived of his due process rights due to a Brady violation is a question of law, to which we grant plenary review.” (Internal quotation marks omitted.) Id., 689.
In the present case, the state has conceded that the internal affairs report was “suppressed within the meaning of Brady and its progeny.” (Internal quotation marks omitted.) As such, the inquiry becomes whether the report was favorable to the defendant and material to his guilt or his punishment. “The United States Supreme Court . . . has recognized that [t]he jury‘s estimate of the truthfulness and reliability of a . . . witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant‘s life or liberty may depend. . . . Accordingly, the Brady rule applies not just to exculpatory evidence, but
The defendant argues that the false statements that Early made to investigators detailed in the report are specific acts of misconduct that were essential to the defense in order to impeach his credibility. The state argues that because the Hartford Police Department ultimately did not uphold the finding made by the investigating internal affairs sergeant that Early had intentionally made false statements, an inference of untruthfulness stemming from the statements “was at best very low.”
Although the internal affairs report was suppressed within the meaning of Brady and was favorable to the defense, it was not material under Brady. “Not every failure by the state to disclose favorable evidence rises to the level of a Brady violation. Indeed, a prosecutor‘s failure to disclose favorable evidence will constitute a violation of Brady only if the evidence is found to be material. The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial . . . United States v. Bagley, [473 U.S. 667, 675, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)]. In a classic Brady case, involving the state‘s inadvertent failure to disclose favorable evidence, the evidence will be deemed material only if there would be a reasonable probability of a different result if the evidence had been disclosed. Bagley‘s touchstone of materiality is a reasonable probability of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A reasonable probability of a different result is accordingly shown when the government‘s
In the present case, the defendant argues that the internal affairs report was material because Early‘s testimony was the state‘s most compelling evidence and, therefore, the defendant‘s ability to cross-examine Early with his own statements impacted the fairness of the trial. The state argues that the report was not material because it had little probative value for purposes of casting doubt on Early‘s investigation and the defendant‘s confession, the defendant had impeached Early by other means, including his fabrication of the purported Harris confession, and the state‘s evidence was strong.
The state‘s failure to disclose the report to allow the defendant yet another opportunity to impeach Early‘s credibility, viewed in the context of the entire trial, does not undermine confidence in the jury‘s verdict. As previously discussed in part I E of this concurring opinion, there was sufficient evidence in the record to support the defendant‘s conviction, namely, Officer Fogg‘s testimony that placed the defendant at the scene ten minutes after the shooting; video footage that showed the shooter in clothes similar to what the defendant was wearing when he arrived on the scene; Harris’ prior inconsistent statements allowing the jury to infer his lack of credibility; and the defendant‘s confession that he was the shooter. See Elsey v. Commissioner of Correction, supra, 126 Conn. App. 160 (“[T]here was ample evidence to support the petitioner‘s conviction. . . . Therefore, we cannot say that the fact that the state did not disclose the evidence . . . undermines our confidence in the jury‘s verdict.” [Citation omitted.]). As previously set forth, Early‘s credibility had been impeached during his cross-examination when the defense questioned him regarding his admitted fabrication of Harris’ purported confession, which, in turn, led to the defendant‘s confession. See Morant v. Commissioner of Correction, 117 Conn. App. 279, 299, 979 A.2d 507 (“[t]his evidence . . . taken in context is merely cumulative impeachment evidence and, therefore, not material under Brady“), cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).
Because the state‘s evidence was sufficient for the jury to find the defendant guilty, and because the evidence contained in the report was at best cumulative concerning Early‘s credibility, the internal affairs report was not material within the meaning of Brady. Accordingly, the defendant‘s Brady claim fails.
III
PLAIN ERROR
The defendant next claims that the state‘s agreement with Harris not to prosecute Harris for any future acts of perjury committed while testifying for the state at the defendant‘s trial constituted plain error because (1) it clearly violated the public policy of this state against immunizing perjured testimony and (2) it violated
The state concedes that its promise not to prosecute Harris for perjury in connection with his upcoming testi-mony was a defective and improper grant of immunity that was inconsistent with Harris’ duty to testify truthfully. The state articulates that plain error analysis requires a court not only to examine the nature of the error, but also to assess the grievousness of its consequences and whether it worked a serious and manifest injustice on the defendant. The state argues that the defendant was not harmed by the grant of immunity to Harris because Harris did not state during his testimony that the defendant had shot him or Cedeno. The state refers to the court‘s instructions to the jury that Harris’ out-of-court statements, including those in which he said that the defendant shot him, could not be used substantively, but only on the issue of the credibility of his in-court testimony. The state also argues that there was other evidence to prove the defendant‘s guilt, and that the jury reasonably could have found, on the basis of evidence developed through a witness other than Harris, and through the state‘s impeachment of Harris, that Harris was lying when he testified that he did not know who shot him, and that everyone, including the jury, should have seen that. From those facts the state concludes that “the prosecutor‘s error did not inflict grievous harm causing manifest injustice upon the defendant . . . .” Although the state refers to Harris’ immunized testimony before the jury that was permitted by the court, the state does not discuss the court‘s role and duty with respect to the truth seeking process that is inherent in any trial, and the constitutional, statutory, public policy and other institutional implications and ramifications of a representative of the state offering the testimony of a witness, and the court‘s permitting that testimony to be presented to the jury, which both was anticipated and expected
The following additional facts are relevant to this claim. On October 9, 2014, the prosecutor and Harris entered into an immunity agreement by which Harris was granted transactional immunity for his testimony regarding the events on March 28, 2013, the date of the shooting, and use immunity, both direct and derivative, for all other proceedings. That same day, October 9, 2014, prior to Harris’ testimony in the defendant‘s trial, the following exchange occurred between the court, Harris’ counsel, and the prosecutor:
“[The Court]: All right. And this additional immunity agreement signed by the state‘s attorney . . . do you have any issues on that?
“[Harris’ Counsel]: No. That was drafted—I was involved in the drafting of that document, Your Honor.
“[The Court]: All right.
“[Harris’ Counsel]: And so it includes transactional immunity to the events related to the—on the day of the shooting, directly and indirectly. It involves use immunity, so none of his words could be used directly against him in this or any other proceeding in state or federal court or anywhere else. It also includes derivative use so that his words can‘t be used to investigate and then come up with other evidence that can be used against him in any proceeding. . . .
“[Harris’ Counsel]: And my understanding is that there is a tape recording or the prosecuting authority believes that it has a tape recording of my client saying something related to his testimony. So, I have concerns about exposure to perjury, and my understanding is that there has been an agreement that there wouldn‘t be any perjury prosecution related to my client‘s testimony today.
“[The Prosecutor]: That‘s correct, Your Honor.
“[The Court]: Okay. Well, [counsel], I must compliment you. I have been in the criminal justice system for forty-two and one-half years. I‘ve never heard of anybody getting that agreement. But it‘s an agreement the state made. That‘s their decision.”
During Harris’ direct testimony, when the state offered Harris’ tape-recorded phone conversation with his mother as a prior inconsistent statement, the following exchange occurred:
“[The Prosecutor]: Well, this is the way you could refresh his memory, Your Honor.
“[The Court]: Well, you‘re the one who agreed not to prosecute him for perjury.
“[The Prosecutor]: I agree.
“[The Court]: Which is probably against the public interest, but I didn‘t step in.
“[The Prosecutor]: There‘s a lot of issues with public interest in this case.
“[The Court]: I must say this amount of perjury actually offends me.”
“[The plain error] doctrine, codified at Practice Book § 60-5,4 is an extraordinary
“An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily [discernible] on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error claim presented in light of the record. Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application. . . . [T]he plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . . . [Previously], we described the two-pronged nature of the plain error doctrine: [An appellant] cannot prevail under [the plain error doctrine] unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . .
“It is axiomatic that, [t]he plain error doctrine . . . is not . . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court‘s judgment . . . for reasons of policy. . . . Put another way, plain error review is reserved for only the most egregious errors. When an error of such a magnitude exists, it necessitates reversal.”5 (Citations
In the present case, the defendant argues that the violation of
Although structural error most commonly occurs in the violation of a constitutional right; see Weaver v. Massachusetts, supra, 137 S. Ct. 1908 (“violation of the right to a public trial is a structural error“); see also State v. Lopez, 271 Conn. 724, 733-34, 859 A.2d 898 (2004) (violation of constitutional right to be present during in-chambers inquiry regarding defense counsel‘s potential conflict of interest was structural error); our Supreme Court has also found structural error in the form of a statutory violation. See State v. Murray, 254 Conn. 472, 496-98, 757 A.2d 578 (2000) (substitution during jury deliberations of alternate juror who previously had been dismissed violated
Because structural error may occur in the form of a statutory violation, structural error analysis is warranted in the present case. “[T]o determine if the error in the present case was structural, we must perform an initial review of the record to determine whether the [violation] had any impact on the subsequent trial that irretrievably eroded its fundamental fairness.” (Emphasis added.) Id., 578. Under both
It is axiomatic that “a primary function of a criminal trial is to search for the truth. . . . The trial court has a duty to preside at a trial and to take appropriate actions, when necessary, that promote truth at the trial.” (Citation omitted.) State v. Kirker, 47 Conn. App. 612, 617, 707 A.2d 303, cert. denied, 244 Conn. 914, 713 A.2d 831 (1998). “Although . . . an important function of a trial is a search for facts and truth . . . a trial must also be fair. State v. Corchado, 200 Conn. 453, 459, 512 A.2d 183 (1986) (discretion to be exercised must be informed and guided by considerations of fundamental fairness that are ingrained in the concept of due process of law).” (Internal quotation marks omitted.) State v. Allen, 205 Conn. 370, 379, 533 A.2d 559 (1987). Moreover, a jury is “entitled to assume . . . that [a witness‘] statements carried the sanction of the oath which [the witness] had taken . . . .” Ruocco v. Logiocco, 104 Conn. 585, 591, 134 A. 73 (1926). Additionally, the trial court‘s unwaivable duty to prohibit knowingly perjured testimony by a witness in a trial, and the jury‘s
In the present case, the court knowingly abdicated its duty to reject any agreement that facilitated Harris’ perjured testimony, and it undermined the truth seeking purpose of the defendant‘s trial by permitting Harris to testify without fear of prosecution for perjury.8 The defendant‘s attorney did not make any objection on the record to the immunity agreement between the state and Harris. The court, however, appears immediately to have accepted the agreement without asking the defendant to comment on its validity. The court, as it expressed on the record, was fully aware of the impropriety of, and other problematic issues raised by the agreement, and it was also aware of and commented on Harris’ obviously perjurious testimony after at least some of it had occurred. In light of the clear statutory invalidity of the agreement, and the other obvious issues that were raised by the agreement, the court had a clear and unwaivable duty to act to prohibit Harris’ testimony, even in the absence of any objection by the defendant to it, and its failure to do so was plain error.
Additionally, it is reasonable to conclude, on the basis of the record of the trial, that the state provided Harris with immunity from perjury in order to use his testimony as a basis to put Harris’ prior inconsistent statements in front of the jury, initially to impeach his credibility. The state, however, subsequently and in violation of its representation to the court that it offered the evidence solely for the purpose of impeachment and not for the truth of the statements therein, improperly utilized those statements for their truth in its closing argument. The court‘s abdication of its duty to take appropriate actions, when necessary, that promoted truth finding at the trial by allowing the immunization of Harris’ testimony so that he could not be charged with and convicted of perjury undermined the fundamental fairness of the defendant‘s trial.
If the court, as it should have done pursuant to
The court‘s acceptance and implementation of the agreement, which allowed the improper, overbroad immunization of Harris’ testimony that was anticipated to include lies that amounted to perjury thus constituted plain error that was structural in nature. As previously set forth, the plain error doctrine is reserved for truly extraordinary situations in which the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. See State v. McClain, supra, 324 Conn. 812-14. Giving a witness a free pass to lie in his sworn testimony satisfies that plain error requirement. The defendant has demonstrated that the actions of the court and the prosecutor resulted in manifest injustice to him; perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings, as it goes to the very heart of the fair administration of justice. United States v. Mandujano, 425 U.S. 564, 576–77, 96 S. Ct. 1768, 48 L. Ed. 2d 212 (1976). Accordingly, I concur with the majority‘s reversal of the defendant‘s conviction and remand of the case for a new trial, but, because of the existence of such structural error, conclude that we do not need to exercise our supervisory authority to do so.9