State v. Lamantia ( 2021 )

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STATE v. LAMANTIA—FIRST DISSENT
D’AURIA, J., with whom McDONALD, J., joins, dis-
senting. I respectfully dissent because I conclude that
the Appellate Court incorrectly concluded that the evi-
dence was sufficient to convict the defendant, Jasmine
Lamantia, of tampering with a witness in violation of
General Statutes § 53a-151 (a). I do not consider this a
case that only boils down to whether the jury drew
permissible inferences from the evidence or engaged
in improper speculation, however. Rather, in my view,
recent precedents of this court involving two statutes
that criminalize offenses against the administration of
justice, only one of which the state charged the defen-
dant with violating, along with recent legislative action
in response to those precedents, illuminate the legisla-
tive intent and, to me, make clear that the defendant’s
conduct does not fall within the conduct that the legisla-
ture sought to criminalize. Specifically, I believe that,
to properly examine how § 53a-151 (a) applies to the
present case, we must consider, pursuant to General
Statutes § 1-2z, that statute’s relationship to General
Statutes § 53a-155, which criminalizes tampering with
physical evidence. Even more specifically, I believe that
how the legislature has responded to our case law
leaves an ambiguity that requires consideration of perti-
nent legislative history. That consideration of the legis-
lative history and our case law leads me to conclude
that the legislature did not intend to criminalize the
defendant’s conduct in the present case. I therefore
respectfully dissent.
Section 53a-151 (a) criminalizes ‘‘tampering with a
witness if, believing that an official proceeding is pend-
ing or about to be instituted, [an individual] induces or
attempts to induce a witness to testify falsely, withhold
testimony, elude legal process summoning him to testify
or absent himself from any official proceeding.’’ The
allegation in this case is that the defendant attempted
to induce her boyfriend, Jason Rajewski, ‘‘to withhold
testimony and to testify falsely.’’1 That allegation arises
from an altercation that took place between Rajewski
and two other men. Trooper Jonathan Baker of the
state police investigated the altercation as a possible
assault. The defendant was neither a participant in the
altercation nor a witness to it. As the case is presented
to us, however, the parties agree that the defendant in
fact sought to induce Rajewski to lie to Baker during
the course of his investigation. Specifically, she sent
text messages to Rajewski in which she encouraged
him to have blood on his clothes when Baker arrived to
investigate, to tell Baker that the victim, David Moulson,
abused her, and to stick to the same story that Rajewski
was already bloody when he arrived at the party from
a bar fight somewhere else, all to get Baker to believe
that Rajewski did not assault Moulson.
The parties disagree over whether there is sufficient
evidence that the defendant, by attempting to induce
Rajewski to lie during a police investigation, also
intended to induce him to give false testimony or to
withhold testimony on the ground that she ‘‘believ[ed]
that an official proceeding [was] . . . about to be insti-
tuted . . . .’’2 General Statutes § 53a-151 (a). The state
argues that a jury reasonably could have inferred that,
when the defendant attempted to induce Rajewski to
lie to Baker during the investigation into the incident,
she also intended to induce him to ‘‘testify falsely’’ or
to ‘‘withhold testimony’’ at an official proceeding that
was about to be instituted. The defendant argues that,
to prove she had the specific intent to induce Rajewski
to give false testimony or to withhold testimony, the
state would have been required to ‘‘prove a chain of
likelihoods.’’ According to the defendant, that chain of
likelihoods would have required the state to present
evidence that she thought that the police would charge
Rajewski with a crime, that an official proceeding would
be held, and that Rajewski would testify at an official
proceeding. On the basis of this court’s interpretations
of §§ 53a-151 (a) and 53a-155, and the legislative history
surrounding those statutes, I agree with the defendant
that the legislature did not intend to criminalize her
conduct in the present case, in which the chain of likeli-
hoods necessary to satisfy the statutory requirements
is so tenuous.
The majority explains that the state had to demon-
strate beyond a reasonable doubt the two elements of
the crime: (1) the defendant’s belief that an official
proceeding was about to be instituted, and (2) the defen-
dant’s attempt to induce Rajewski to testify falsely at
an official proceeding.
I
I begin with the first element—the defendant’s belief
that an official proceeding was about to be instituted.
Our legislature has defined an ‘‘official proceeding’’ as
‘‘any proceeding held or which may be held before any
legislative, judicial, administrative or other agency or
official authorized to take evidence under oath, includ-
ing any referee, hearing examiner, commissioner or
notary or other person taking evidence in connection
with any proceeding.’’ General Statutes § 53a-146 (1).
Unlike § 241.6 (1) of the Model Penal Code,3 our witness
tampering statute, § 53a-151 (a), does not explicitly
extend to interference with an ‘‘investigation . . . .’’
State v. Ortiz, 312 Conn. 551, 568, 93 A.3d 1128 (2014).
This is not the first time we have been confronted with
the question of under what circumstances a jury may
find that, at the investigative stage, a defendant subjec-
tively believes that an official proceeding is ‘‘about to
be instituted . . . .’’ General Statutes § 53a-151 (a).
Therefore, ‘‘we do not write on a clean slate, but are
bound by our previous judicial interpretations of the
language and the purpose of the statute.’’ Kasica v.
Columbia, 309 Conn. 85, 93–94, 70 A.3d 1 (2013).
We recently analyzed § 53a-151 in State v. Ortiz,
supra, 312 Conn. 555, in which the defendant was a
‘‘ ‘principal suspect’ ’’ in a murder investigation. During
their investigation, the police contacted Kristen Quinn,
the defendant’s former girlfriend, who, at first, did not
provide the police with any useful information and who,
after the victim’s remains were found, told the defen-
dant that she was in contact with the police and did
not want to be involved with him because she thought
he might have had something to do with the victim’s
murder. Id. In the following months, however, the defen-
dant became aware that Quinn had been speaking with
the police, and he detailed for her how he had killed
the victim with a knife. Id., 557. Later, still, the defendant
went to Quinn’s house, showed her a handgun and told
her that he ‘‘had the gun for insurance if she told the
cops about what he said about [the victim].’’ (Internal
quotation marks omitted.) Id. The defendant said that,
if Quinn spoke to the police, ‘‘[her] house was going to
go up in smoke.’’ (Internal quotation marks omitted.)
Id. He told her ‘‘that he was going to put [her down]
on [her] knees, put the gun to [her] head and scare
[her] straight.’’ (Internal quotation marks omitted.) Id.The defendant also stated that he knew where Quinn’s
grandparents lived. Id. A jury found the defendant guilty
of tampering with a witness in violation of § 53a-151
(a), as well as other charges. Id., 553–54.
The defendant appealed to this court, and we
addressed his claim that § 53a-151 does not criminalize
the act of attempting to prevent someone from giving
a statement to the police when no charges are pending.
Id., 559. We set forth the statute’s two requirements:
(1) the defendant ‘‘believes that an official proceeding
is pending or about to be instituted,’’ and (2) ‘‘the defen-
dant induces or attempts to induce a witness to engage
in the proscribed conduct.’’ Id., 562. In applying the
statute’s first requirement to the facts in Ortiz, we
referred to the phrase, ‘‘about to be instituted,’’ as
‘‘somewhat ambiguous’’ and sought to resolve that
ambiguity by looking to our cases that interpret identi-
cal language in § 53a-155. Id., 569–70. We recognized
that ‘‘the omission of ‘investigation’ [in § 53a-151 (a)]
was intended to exclude from the scope of the statute
situations in which the defendant believes that only an
investigation, but not an official proceeding, is likely
to occur.’’ Id., 570.
Nevertheless, we recognized that a defendant’s inter-
ference with a witness during the investigation of a
crime may violate § 53a-151 (a) if there was sufficient
evidence that, at the time of the interference, the defen-
dant (1) believed that an official proceeding was pend-
ing or was about to be instituted, and (2) interfered
with the witness in the investigation so as to induce
or to attempt to induce the witness to engage in the
proscribed conduct (i.e., testify falsely, withhold testi-
mony, elude legal process or absent himself from any
official proceeding). Id., 560. Although attempting to
induce a witness to lie to or to withhold evidence from
police investigators may not always itself satisfy the
subjective intent requirement of § 53a-151 (a), i.e.,
‘‘believing that an official proceeding is pending or
about to be instituted,’’4 we held that, under certain
circumstances, a jury may infer that intent from the
defendant’s attempts to induce the witness to lie or to
withhold that evidence. State v. Ortiz, supra, 312 Conn.
563. Applying that framework, we concluded that there
was sufficient evidence that the defendant intended
to induce a witness to testify falsely or to withhold
testimony at an official proceeding by attempting to
induce a witness to lie to the police. Specifically, we
held that the jury could have inferred that, by interfering
with the police investigation, the defendant intended
to influence Quinn to lie during an official proceeding
on the basis of evidence that the defendant had con-
fessed to two individuals that he had killed someone,
he knew Quinn was in contact with the police, and
he had heard that warrants had issued for his arrest.
Id., 572–73.
As we noted in Ortiz, § 53a-151 (a) is not the only
criminal statute that punishes interference with our
system of justice or that employs the phrase, ‘‘believing
that an official proceeding is pending or about to be
instituted . . . .’’ Nor is Ortiz the only recent decision
of this court interpreting and applying that phrase. Ortiz
was argued at the same time as State v. Jordan, 314
Conn. 354, 102 A.3d 1 (2014), although Jordan was
decided four months after Ortiz. In Jordan, we interpre-
ted identical language from a related statute, § 53a-155,5
which criminalizes tampering with physical evidence,
not witnesses.
Like the defendant in Ortiz, the defendant in Jordan
argued that the legislature had restricted the scope of
the tampering with physical evidence statute, § 53a-155,
by omitting from it the word ‘‘investigation.’’ Id., 381.
In Jordan, a police officer had chased a bank robbery
suspect who ran down a sidewalk when the officer
called out to him. Id., 359. One witness testified to
having seen a man who matched the description of the
individual remove his jacket while running across the
witness’ backyard. Id., 359–60. A second witness saw
the individual remove his sweatshirt while he was in
her backyard, after which the individual headed to the
back of her carport, where the witness’ husband later
found a sweatshirt that was crumpled into a ball. Id.,
360. The second witness also located a dark jacket in
a neighbor’s trash can, and, when the police took the
jacket from the trash can, they also discovered a mask,
leather gloves and a shopping bag. Id. DNA analysis of
the samples that the police took from all of the items
of clothing, except a sample that was taken from the
collar of the jacket, included the defendant as a contrib-
utor of DNA. Id., 363. A jury found the defendant guilty
of, among other crimes, tampering with physical evi-
dence in violation of § 53a-155. Id., 364.
We ‘‘agree[d] with the defendant that the legislature
restricted the scope of the tampering with physical evi-
dence statute by omitting the word ‘investigation.’ We
disagree[d] with the defendant, however, that [our pre-
vious case law had] improperly extend[ed] liability
under the evidence tampering statute to conduct that
the legislature deliberately excluded from the scope of
§ 53a-155.’’ Id., 381. As in Ortiz, we concluded in Jordan
that a defendant’s attempt to discard evidence during
the investigation of a crime may violate the evidence
tampering statute, notwithstanding the omission of the
word ‘‘investigation.’’ Id., 382; see footnote 5 of this
opinion. We explained in Jordan that the omission of
the word ‘‘investigation’’ from the tampering with physi-
cal evidence statute did not automatically exclude all
physical evidence discarded during a police investiga-
tion. State v. Jordan, supra, 314 Conn. 382. Rather, the
statute’s application depended on the point in time at
which the defendant believed that an official proceeding
probably would occur. Id. We emphasized ‘‘that it is
not the existence of an investigation that is key but,
rather, whether the defendant believes an official pro-
ceeding is pending or probable.’’ (Emphasis added.)
Id., 383.
Applying those principles in Jordan, we concluded
that ‘‘the jury could not reasonably have concluded
that the defendant believed that an official proceeding
against him was probable when he discarded the evi-
dence.’’ Id., 385. The defendant had run within minutes
of the attempted bank robbery, and there was no evi-
dence that he believed that the police officer knew his
identity or any other information connecting him to the
crime. Id., 386. ‘‘[A]t that point in time, the clothing
was the only evidence linking the defendant to the
attempted bank robbery. Therefore, it would [have
been] unreasonable for the jury to have inferred from
the fact that the defendant absconded from the police
officer that the defendant [had] believed that an official
proceeding against him was probable.’’ (Emphasis in
original.) Id. We concluded that the evidence was insuf-
ficient to support the conviction of tampering with phys-
ical evidence in violation of § 53a-155. Id., 388. ‘‘Instead,
the only reasonable inference from the facts . . . [was]
that the defendant discarded his clothing to prevent its
use in an investigation in order to escape detection and
avoid being arrested by the pursuing police officer.’’
Id., 388–89.
In both Ortiz and Jordan, therefore, we determined
that, despite the omission of the term ‘‘investigation,’’
both statutes could encompass interference with a
police investigation but only if there was proof beyond
a reasonable doubt that the defendant subjectively
‘‘believed’’ that an ‘‘official proceeding [was] pending
or about to be instituted,’’ i.e., ‘‘that an official proceed-
ing will probably occur.’’ In Ortiz, we concluded that
there was sufficient evidence of such a belief; in Jordan,
we concluded that there was not.
After our decisions in Ortiz and Jordan, the legisla-
ture, in Public Acts 2015, No. 15-211, § 9 (P.A. 15-211),
amended § 53a-155 but chose not to amend § 53a-151
(a). See, e.g., Achillion Pharmaceuticals, Inc. v. Law,
291 Conn. 525, 535, 970 A.2d 57 (2009) (‘‘[t]he legislature
is presumed to be aware and to have knowledge of all
existing statutes and the effect which its own action
or nonaction may have on them’’ (internal quotation
marks omitted)). I find the legislature’s actions—both
the enactment of new language in § 53a-155 and the
lack of that language in the related statute, § 53a-151
(a)—relevant to an appropriate analysis under § 1-2z. I
consider the legislature’s actions even more relevant,
given that, when we interpreted § 53a-151 (a) in Ortiz,
we were guided by the language of § 53a-155, before that
statute had been amended. See State v. Ortiz, supra,
312 Conn. 569–70; see also P.A. 15-211, § 9.
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case
. . . . In seeking to determine that meaning . . . [Gen-
eral Statutes] § 1-2z directs us first to consider the text
of the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered.’’ (Internal quotation marks omitted.)
Callaghan v. Car Parts International, LLC, 329 Conn.
564, 570–71, 188 A.3d 691 (2018). Because we have
previously construed § 53a-151 (a), ‘‘we must consider
its meaning in light of our prior cases interpreting the
statute . . . .’’ Id., 571. ‘‘When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and [common-law] principles governing the same gen-
eral subject matter . . . .’’ (Internal quotation marks
omitted.) State v. Panek, 328 Conn. 219, 225–26, 177
A.3d 1113 (2018).
In Ortiz, we considered the phrase, ‘‘about to be
instituted,’’ to be ‘‘somewhat ambiguous . . . .’’ (Inter-
nal quotation marks omitted.) State v. Ortiz, supra, 312
Conn. 569. Even after our construction of the term in
a number of cases, however, I do not find this ambiguity
entirely dispelled, given the legislature’s addition of the
term ‘‘investigation’’ in one statute, § 53a-155, and its
failure to add it to the related statute at issue in the
present case, § 53a-151 (a). Specifically, after the legisla-
ture’s direct response to Jordan by amending § 53a-
155, we are left with ambiguity as to how broadly or
narrowly the legislature intended ‘‘official proceeding’’
to be construed under § 53a-151 (a). See Amaral Bros.,
Inc. v. Dept. of Labor, 325 Conn. 72, 89, 155 A.3d 1255(2017) (‘‘it is at least ambiguous whether the legislature,
in amending [General Statutes] § 31-60 (b) in 1980,
intended to repeal [a Department of Labor regulation]’’).
In my view, it is unclear whether the legislature
intended the language of § 53a-151 (a)—in the absence
of the term ‘‘investigation’’—to apply to the interference
with an investigation under circumstances such as
those in the present case. Therefore, I would turn to
the legislative history. In the legislative session directly
following Jordan, the Judiciary Committee considered
Raised Bill No. 1105, ‘‘An Act Concerning Minor Revi-
sions to the Criminal Justice Statutes.’’ Raised Bill No.
1105, 2015 Sess., §§ 9 through 11. The proposed legisla-
tion included amendments to the witness tampering
statute (§ 53a-151), the witness intimidation statute
(General Statutes (Rev. to 2015) § 53a-151a), and the
evidence tampering statute (§ 53a-155).6 The proposal
would have added the term ‘‘investigation’’ to all of
the statutes. See id. The amendment to the witness
tampering statute also would have criminalized the
inducement of an individual to ‘‘inform falsely’’ and to
withhold ‘‘information’’ during an investigation. Id., § 9.
The Office of Legislative Research summarized the
proposed amendments to the statutes by stating that
‘‘[t]he bill expands the scope of these crimes to cover
conduct that occurs when a person believes an investi-
gation is pending or about to begin. By law, each of
these crimes covers conduct when a person believes
an official proceeding is pending or about to begin. The
Connecticut Supreme Court ruled that the evidence
tampering crime did not cover situations where a per-
son believes that only an investigation but not an official
proceeding is likely (State v. Jordan, 314 Conn. 354(2014)).’’ Office of Legislative Research, Bill Analysis,
S. Bill No. 1105: An Act Concerning Revisions to the
Criminal Justice Statutes (2015), available at https://
www.cga.ct.gov/2015/BA/2015SB-01105-R000741-BA.htm.
Both the Office of the Chief Public Defender (OCPD)
and the Connecticut Criminal Defense Lawyers Associa-
tion (CCDLA) opposed the proposed amendments and
submitted written testimony identifying concerns about
the inclusion of the term ‘‘investigation.’’ See Conn.
Joint Standing Committee Hearings, Judiciary, Pt. 9,
2015 Sess., pp. 4947–50. The CCDLA warned: ‘‘This bill
will create scenarios in which parents, friends or associ-
ates of witnesses arguably would engage in ‘tampering’
behavior simply by discussing whether or not the wit-
ness should provide a statement to the police or other-
wise cooperate with an ongoing investigation. If passed,
this proposal will isolate witnesses and enable law
enforcement to improperly exert pressure not only on
the witnesses but on their families, friends and associ-
ates as well.’’ Id., p. 4950, remarks of Elisa L. Villa,
president of the Connecticut Criminal Defense Lawyers
Association.
The OCPD posed a different scenario: ‘‘Assume for
instance the following facts: a child age [fifteen] attends
a school where there was a confrontation between other
students. The [fifteen] year old was not involved but
may have observed the confrontation. The [fifteen] year
old is walking home from school, is stopped by the
police and asked what he saw. The [fifteen] year old is
afraid to talk to the police and does not provide any
information. When he goes home and tells his parents
what transpired, the parents tell him not to speak with
anyone about the incident until they consult with an
attorney. Are the parents telling this ‘witness’ to with-
hold information and therefore can [the parents] be
charged with tampering with a witness?’’ Id., pp. 4947–
48, remarks of Deborah Del Prete Sullivan, legal counsel
to and director of the Office of the Chief Public Defender.
The proposal that the legislature ultimately enacted
amended the tampering with or fabricating physical
evidence statute to encompass such interference when
a person believes a ‘‘criminal investigation conducted
by a law enforcement agency’’ is pending, not just when
a person believes an official proceeding is pending or
about to be instituted. P.A. 15-211, § 9.7 The legislature
did not amend either the witness intimidation statute
or the witness tampering statute, however.
Because the legislature enacted the amendment to
§ 53a-155 to include pending investigations, we can
infer that, in response to Jordan, the legislature acted
to criminalize conduct that we had not previously inter-
preted the statute to include—specifically, tampering
with evidence during a criminal investigation, without
the need to prove that the defendant believed an official
proceeding ‘‘would probably occur . . . .’’ State v.
Ortiz, supra, 312 Conn. 570. A rational reason to explain
this expansion is that physical evidence could be the
only evidence relied on to solve crimes. If physical
evidence is destroyed or altered early enough in the
investigation stage, the crime could remain unsolvable
indefinitely.
Conversely, the legislature did not amend the tamper-
ing with a witness statute, § 53a-151, to include the
inducement of another to inform falsely or to withhold
information when a person believes only that an investi-
gation is pending. From this, we can infer that the legis-
lature did not reject our interpretation in Ortiz, leaving
Ortiz in place as good law, and did not intend to expand
the scope of the tampering with a witness statute to
the same degree as it expanded the scope of the tamper-
ing with physical evidence statute. See, e.g., State v.
Evans, 329 Conn. 770, 807, 189 A.3d 1184 (2018) (‘‘[t]he
legislature is presumed to be aware of the [courts’]
interpretation of a statute and . . . its subsequent non-
action may be understood as a validation of that inter-
pretation’’), cert. denied, U.S. , 139 S. Ct. 1304,
203 L. Ed. 2d 425 (2019).
Having construed the statute and ascertained the leg-
islature’s apparent intent regarding the witness tamper-
ing statute, I must determine whether the statute applies
to the facts of the present case, construing the record
in the light most favorable to sustaining the verdict.
See, e.g., State v. Elmer G., 333 Conn. 176, 183, 214
A.3d 852 (2019). In my view, we must evaluate the
defendant’s conduct in relation to Ortiz and Jordan,
as well as in relation to the conduct contemplated by the
legislature when it considered amending the tampering
statutes. These judicial and legislative guideposts make
clear to me that the legislature, by not adopting the
amendment to the witness tampering statute, did not
intend to criminalize interference with every investiga-
tion and, specifically, did not intend to criminalize the
inducement of others to withhold information or to
falsely inform when there is no evidence to support an
inference that, at that time, the individual also intended
to attempt to influence such behavior in a future official
proceeding. Rather, the legislature restricted applica-
tion of the statute to conduct that the tamperer would
have believed would induce false testimony or the with-
holding of testimony during an official proceeding—
the intent requirements set forth in Ortiz.
First, in Ortiz, we discussed two contrasting scenar-
ios by which to evaluate tampering conduct. See State
v. Ortiz, supra, 312 Conn. 570–71. In one scenario, a
person who committed a crime prevents the only wit-
ness to that crime from speaking to the police. Id., 570.
The interference is undertaken to hinder the investiga-
tion and to prevent an official proceeding against him-
self from ever taking place. Id. Under Ortiz, that con-
duct would not fall within the scope of the statute. Id.(‘‘[t]he individual certainly could believe that the police
would investigate the crime, but he would have no rea-
son to believe that an official proceeding would proba-
bly occur because there would be no evidence or wit-
nesses on which the police could rely to identify and
arrest [him]’’). Id. In the other scenario, the potential
tamperer knows that there is significant evidence con-
necting him to the crime and tampers with a witness
who has information relevant to that crime. Id., 570–71.
Under Ortiz, that conduct would fall within the purview
of the statute because the conduct suggests an intent
to induce that witness to testify falsely or to withhold
evidence. Id., 571.
Although not dispositive, the facts of the present case
clearly fall closer to the first scenario than the second.
The defendant was not involved in the altercation and
had no reason to believe that an official proceeding
would probably occur because there was no evidence
or witness tying her to a criminal role in the altercation.
She was not the alleged perpetrator of the crime; nor
did she witness the incident. Some evidence suggests
that someone might have inferred that an official pro-
ceeding could be instituted (the defendant was on the
scene when the police arrived, heard Moulson recount
his version of events to Baker and knew that one partici-
pant had been taken to the police station). But the
record is devoid of evidence—and surely not evidence
beyond a reasonable doubt—that the defendant in fact
believed that an official proceeding was about to be
instituted, i.e., ‘‘would probably occur . . . .’’ Id., 570.
But cf. id., 572–73 (‘‘there was substantial evidence on
which the jury could have relied to find that the defen-
dant believed an official proceeding would probably
occur,’’ including the defendant’s confessions, his con-
tacts with the police, his request to speak to an investi-
gator working on the case, and his statements that he
had heard about warrants for his arrest); State v.
Cavallo, 200 Conn. 664, 673, 513 A.2d 646 (1986) (state
‘‘introduced ample evidence to convince a reasonable
finder of fact that, at the time of his attempts to [induce
a false account from a witness] . . . the defendant had
known that an arbitration proceeding would soon be
pending and that, during the hearing, the [witness]
would probably be called to testify’’); State v. Pommer,
110 Conn. App. 608, 620, 955 A.2d 637 (The state pre-
sented evidence that the ‘‘defendant knew that [an indi-
vidual] had turned herself in to the police and had
implicated [the defendant and two others] in the rob-
bery. From this evidence, the jury reasonably could
have inferred that the defendant believed that an official
proceeding was about to be instituted.’’), cert. denied,
289 Conn. 951, 961 A.2d 418 (2008). It is true of every
investigation that a witness who seeks to interfere will
have some information about the incident under investi-
gation. Simply knowing about a crime and attempting
to prevent the police from discovering more about what
transpired does not, in and of itself, constitute witness
tampering. In my view, the defendant’s mere knowledge
of participants’ involvement in a potential crime under
investigation is hardly a sufficient limitation on the
scope of the statute, as it would virtually always impute
to the defendant a belief that an official proceeding is
about to be instituted. Importantly, both scenarios in
Ortiz contemplate a tamperer who is acting to prevent
inculpatory evidence about a crime the tamperer him-
self had committed from reaching the police and, ulti-
mately, from reaching a jury.
We know from Ortiz that the legislature did not
intend to criminalize all interferences with investiga-
tions. Missing from the record in the present case is
the type of evidence—and, more particularly, the defen-
dant’s awareness of that evidence—indicating that an
official proceeding ‘‘probably would occur . . . .’’ State
v. Ortiz, supra, 312 Conn. 570. Had her plan succeeded,
no official proceeding would have ever ensued,
undermining the argument that she believed an official
proceeding was about to be instituted.
In this way, the facts of the present case no more
support a conclusion that the defendant believed an
‘‘official proceeding . . . [was] about to be instituted’’;
General Statutes § 53a-151 (a); than did the facts of
Jordan, and are perhaps more attenuated. Unlike the
tamperer in Jordan, the defendant in the present case
was not the target of the investigation. She did not
engage in the altercation under investigation, although
she knew the participants. It was not clear whether any
one or all of the participants would be arrested that
night, let alone that there would be a trial. ‘‘Instead,
the only reasonable inference from the facts . . . [was]
that the defendant [urged Rajewski to bloody his clothes
and to get his story straight] in order [for Rajewski]
to escape detection and avoid being arrested by the
pursuing police officer.’’ State v. Jordan, supra, 314
Conn. 388–89. In my view, it was therefore unreasonable
for the jury to have inferred from the fact that the
defendant urged Rajewski to deceive the officer that
she subjectively believed ‘‘that an official proceeding
against him was probable.’’ Id., 386.
II
In light of my conclusion that the legislature did not
intend to criminalize the inducement of false testimony
or the withholding of testimony during an investigation
unless the evidence supports an inference that the
defendant subjectively believed that an official proceed-
ing would probably occur, it becomes clear that the
state bore a heavy burden to satisfy the second element
of the crime—that the defendant intended to attempt
to induce false testimony at an official proceeding. In
addition to the fact that, as discussed, I do not believe
this is a case in which the state can demonstrate that
the defendant believed an official proceeding was about
to be instituted, given my understanding of the scope
of the statute, I also do not believe that the state met
its burden of proving that, on the evening in question,
she attempted to convince Rajewski to testify falsely
at a future proceeding.
The statute’s legislative history contains another
guidepost by which we can evaluate whether the legisla-
ture intended for the defendant’s conduct to come
within the second element of the statute—intent to
attempt to induce false testimony. In its written testi-
mony about Raised Bill No. 1105, which would have
modified all three statutes; see part I of this opinion;
the CCDLA warned that expansion of the tampering
statute could criminalize friends or associates of wit-
nesses who engage in tampering behavior simply by
discussing whether the witness should provide a state-
ment to the police or otherwise cooperate with an ongo-
ing investigation. See Conn. Joint Standing Committee
Hearings, supra, p. 4950. In these scenarios, the poten-
tial tamperer is not at all involved as a participant in the
crime under investigation but only becomes involved
by telling a witness to withhold information from the
police. The potential tamperer is also not subject to
any criminal charges resulting from the investigation,
other than a charge of tampering. The tamperer does
not stand to benefit personally from the withholding of
information. The tamperer’s immediate intent, then, is
to withhold information from the police to protect
someone else from getting into trouble or from being
arrested.
Nothing in the record suggests, like the scenario that
the CCDLA warned of, that the defendant in the present
case was attempting to induce Rajewski to lie at an
official proceeding. Unlike the defendants in Ortiz and
Jordan, she was not a suspect in the crime the police
were investigating. She did not face potential prosecu-
tion in connection with the fight that took place. When
the investigating officer, Baker, was asked during trial,
‘‘what was the effect of her text messages on your
investigation,’’ he responded, ‘‘[w]ell, when I left the
scene . . . I had no reason to arrest her . . . she was
being honest with me. . . . I had to arrest her now.
She’s trying to get someone to lie to me; that’s interfer-
ing with my investigation.’’ The defendant did not stand
to benefit from information being withheld from the
police other than by keeping her boyfriend from being
prosecuted. That intent is exactly what the legislature
declined to criminalize by not extending § 53a-151 to
include interference with investigations—conduct that
would be considered within § 53a-155 after the legisla-
ture’s 2015 amendment. See P.A. 15-211, § 9.
This is not to say that a witness tampering charge is
appropriate only when the tamperer stands to benefit
personally by avoiding criminal charges or only when
the tamperer is a witness to the underlying crime. I
acknowledge that, under certain circumstances, an indi-
vidual who is not involved in the crime and does not
witness the crime certainly could be subject to a tamper-
ing charge. The Appellate Court examined that exact
situation in State v. Bennett-Gibson, 84 Conn. App. 48,
851 A.2d 1214, cert. denied, 271 Conn. 916, 859 A.2d
570 (2004). In Bennett-Gibson, the defendant’s sister
offered the alleged victim-witness financial incentives
to drop the case against her brother. Id., 50. What distin-
guishes Bennett-Gibson from the present case is that
the tamperer in Bennett-Gibson approached the wit-
ness in the courthouse after the witness had lodged a
formal complaint with the police and after the brother
had been arrested and charged—all evidence establish-
ing that an official proceeding had begun and that the
tamperer intended to influence testimony at that pro-
ceeding. Id. Bennett-Gibson clearly illustrates the point
that, once the official proceeding has begun, the tam-
perer knows it has begun, and the damaging testimony
is looming large at that proceeding; interference even
by a third party may reasonably be inferred to demon-
strate an intent to influence or prevent that testimony,
thereby supporting a tampering charge. In the absence
of evidence of at least an incipient proceeding, and
more particularly the defendant’s subjective belief that
the proceeding was about to begin, an inference of the
necessary intent remains legally tenuous.
In an attempt to bolster the state’s plainly deficient
proof of the defendant’s intent on the night in question
to induce Rajewski’s false testimony at a future pro-
ceeding—which is what she was charged with and
which I believe fails as a matter of legislative intent
and evidence—the majority relies on the defendant’s
own testimony at her own trial in her own defense
sixteen months later. From this, the majority under-
takes a leap of logic: that ‘‘the jury reasonably could
have concluded that the defendant had no qualms about
perjuring herself on the witness stand and, from such
a finding, could have inferred, in light of all the other
evidence, that the defendant intended Rajewski to do
the same when the time came.’’
I agree with the majority that, on the basis of her
testimony as well the evidence presented by the state
to rebut that testimony, the jury reasonably could have
concluded that the defendant was ‘‘dishonest and not
credible . . . .’’ For example, it could have concluded
that the defendant lied when she testified that she did
not send the text messages to Rajewski at all or that
someone else had sent them. She also lied when she
denied she was in a relationship with Rajewski at the
time of the altercation with Moulson. And she lied once
again when she insisted she was not in love with Rajew-
ski at the time of the altercation or afterward. As is
often the case these days, she was effectively hoisted
on her own social media postings,8 claiming, as with
the text messages, they either were sent from a fake
account or that her account had been hacked. The
majority therefore makes a convincing case that she
was an unrepentant perjurer.
I am a firm believer in our often stated admonition
that the line between fair inference and improper specu-
lation is, ‘‘frankly, a matter of judgment,’’ and that it is
not my role to substitute my own view for the jury’s
exercise of that judgment. (Internal quotation marks
omitted.) State v. Rhodes, 335 Conn. 226, 238, A.3d
(2020). The defendant, after all, chose a jury trial.
But the majority would have us conclude that the jury
reasonably could have inferred from the fact that she
testified falsely at her own trial, long after Baker’s inves-
tigation of the altercation between Rajewski and Moul-
son, that she also intended by her actions all those
months before to induce Rajewski to testify falsely at
any later trial arising from the altercation. This is too
much for me.
Could the jury have come to the same conclusion—
that she is a liar—if she had lied about her hair color
or her age? Possibly, and yet, so what? How do those
lies bring her conduct within the scope of the statute?
The defendant’s false testimony at her own trial is
hardly probative—and certainly not dispositive—of her
intent to attempt to induce Rajweski to lie at a different
official proceeding when she was trying to get him to
lie to the police on the evening in question.
The fundamental problem with the defendant’s own
testimony is that it suffers from a double remoteness
problem. Under the majority’s reasoning, the defen-
dant’s false testimony in 2017 is projected back in time
sixteen months to inform the defendant’s intent on the
night of the altercation in 2016, and that intent is then
propelled forward to influence a future official proceed-
ing, whenever it is held. Proving a defendant’s intent
to influence a future proceeding by having to demon-
strate her subjective belief that that proceeding was
about to be instituted is challenging enough. But while
it is certainly appropriate to seek to prove the elusive
element of intent on the basis of circumstantial evi-
dence; see, e.g., State v. Bonilla, 317 Conn. 758, 766,
120 A.3d 481 (2015); in my view, using the circumstances
of a defendant’s future testimony to make out a case
of an earlier intent to influence a future proceeding
requires that the majority attempt a feat of elasticity
that the state does not undertake on its own.
This is how the majority explains it: The defendant’s
perjury ‘‘undermines any suggestion that the defendant
could not be presumed to have contemplated that
Rajewski should lie at any trial that resulted from the
police investigation of the altercation.’’ ‘‘[U]ndermin-
[ing]’’ a ‘‘suggestion’’ of the defendant’s ‘‘presumed’’
‘‘contemplat[ion]’’ sixteen months beforehand hardly
sounds like proof of an intent beyond a reasonable
doubt. Quite simply, I disagree with the majority that
the jury’s determination of the defendant’s credibility at
her own trial in 2017 can serve to establish the statutory
requirement of intent to attempt to induce false testi-
mony at an official proceeding that, at best, may have
been about to be instituted in 2016.
The jury reasonably could have inferred from the fact
that the defendant lied at her own trial that she lies,
especially for her own benefit; however, it could not
reasonably infer from this evidence that she intended
to induce another person to lie in an official proceeding
that did not involve her. Lying, by itself, and outside of
the perjury context, is not a crime. Additionally, telling
someone else to lie to the police, without more, does
not violate any criminal statute in Connecticut, as it
would under federal law. See 18 U.S.C. § 1001 (a) (2018)
(‘‘whoever . . . (1) falsifies, conceals, or covers up by
any trick, scheme, or device a material fact . . shall be
fined . . . [or] imprisoned’’). The legislative history
tells us that the legislature did not intend to reach so
far and that there must be some limit on the scope of
the witness tampering statute. The limitation lies in
requiring proof that the tamperer ‘‘believ[es] that an
official proceeding is pending or about to be instituted’’
and ‘‘attempts to induce a witness to testify falsely . . .
[in] any official proceeding.’’ General Statutes § 53a-151
(a). In the absence of some evidence of belief and intent,
the statute sweeps in the friend or parent who the
CCDLA warned could be prosecuted for tampering,
exclusively on the basis of a discussion of whether to
provide a statement to the police or to cooperate with
their investigation. See Conn. Joint Standing Committee
Hearings, supra, p. 4950. I do not believe the legislature
intended to criminalize such conduct.
I agree with the defendant that the chain of inferences
required to get from the defendant’s texting her boy-
friend to lie to the police to intending to have her boy-
friend lie while testifying during a trial is simply too
tenuous to fall within the conduct that I conclude the
legislature intended to criminalize. Moreover, ‘‘unless
a contrary interpretation would frustrate an evident
legislative intent, criminal statutes are governed by the
fundamental principle that such statutes are strictly
construed against the state.’’ (Internal quotation marks
omitted.) State v. Cote, 286 Conn. 603, 615, 945 A.2d
412 (2008). The majority’s conclusion would expand
the scope of the witness tampering statute beyond that
of our decision in Ortiz and would, in my view, conflict
with the legislature’s rejection of the proposed amend-
ment, which reinforced the view that the statute should
not apply to every interference with an investigation.
The statute and our case law demonstrate that an intent
to attempt to influence testimony can be inferred only
when the defendant subjectively believes that an official
proceeding is about to be instituted. The evidence in
the present case does not establish that the defendant
subjectively believed that an official proceeding proba-
bly would occur. The state failed to establish that sub-
jective belief, and the record is devoid of evidence to
establish that the defendant acted with the intent to
attempt to induce false testimony at a proceeding she
did not subjectively believe was about to be instituted.
Accordingly, I would reverse in part the judgment of
the Appellate Court and remand the case to that court
with direction to direct the trial court to render judg-
ment of not guilty on the charge of witness tampering.
I therefore respectfully dissent.
1
No one contends that Rajewski actually testified falsely or withheld
testimony, so the allegation is limited to the intent element of attempting
to induce false testimony.
2
No one contends that an ‘‘official proceeding’’ was pending at the time
the police interviewed any of the witnesses in the present case.
3
See 2 A.L.I., Model Penal Code and Commentaries (1980) § 241.6 (1), p.
162 (witness tampering extends to any person who believes ‘‘that an official
proceeding or investigation is pending or about to be instituted’’).
4
We noted in Ortiz that, ‘‘[a]lthough the statute does not specify whether
the term ‘belief’ is judged by an objective or subjective standard, this court
previously has determined that the statute ‘focuses on the mental state of
the perpetrator to distinguish culpable conduct from innocent conduct.’ ’’
State v. Ortiz, supra, 312 Conn. 569, quoting State v. Cavallo, 200 Conn.
664, 669, 513 A.2d 646 (1986). Thus, § 53a-151 (a) applies to ‘‘any conduct
that is intended to prompt a witness to testify falsely or refrain from testifying
in an official proceeding that the perpetrator believes [is] pending or immi-
nent.’’ (Emphasis added.) State v. Cavallo, supra, 668. ‘‘Put simply, under
§ 53a-151 (a), as long as the defendant believes that an official proceeding
will probably occur, it does not matter whether an official proceeding is
actually pending or is about to be instituted.’’ (Emphasis omitted.) State v.
Ortiz, supra, 569.
5
At the time of the events in Jordan, § 53a-155 (a) provided: ‘‘A person
is guilty of tampering with or fabricating physical evidence if, believing that
an official proceeding is pending, or about to be instituted, he: (1) Alters,
destroys, conceals or removes any record, document or thing with purpose
to impair its verity or availability in such proceeding; or (2) makes, presents
or uses any record, document or thing knowing it to be false and with
purpose to mislead a public servant who is or may be engaged in such
official proceeding.’’ (Emphasis added.) General Statutes (Rev. to 2007)
§ 53a-155 (a).
6
The proposed amendments in §§ 9 through 11 of Raised Bill No. 1105
are as follows. We note that, within the following quoted material, proposed
additions are indicated by underlining and proposed deletions are enclosed
in brackets.
‘‘Sec. 9. Section 53a-151 of the general statutes is repealed and the follow-
ing is substituted in lieu thereof (Effective October 1, 2015):
‘‘(a) A person is guilty of tampering with a witness if, believing that an
investigation or official proceeding is pending or about to be instituted, [he]
such person induces or attempts to induce a witness to testify or inform
falsely, withhold testimony, information, a document or a thing, elude legal
process summoning [him] such person to testify or provide evidence, or
absent himself or herself from any official proceeding or investigation to
which such person has been summoned.
***
‘‘Sec. 10. Section 53a-151a of the general statutes is repealed and the
following is substituted in lieu thereof (Effective October 1, 2015):
‘‘(a) A person is guilty of intimidating a witness when, believing that an
investigation or official proceeding is pending or about to be instituted,
such person uses, attempts to use or threatens the use of physical force
against a witness or another person with intent to (1) influence, delay
or prevent the testimony of the witness in the official proceeding, or the
cooperation of the witness in the investigation, or (2) induce the witness
to testify or inform falsely, withhold testimony, information, a document or
a thing, elude legal process summoning the witness to testify or provide
evidence, or absent himself or herself from the official proceeding or investi-
gation to which such person has been summoned.
***
‘‘Sec. 11. Section 53a-155 of the general statutes is repealed and the
following is substituted in lieu thereof (Effective October 1, 2015):
‘‘(a) A person is guilty of tampering with or fabricating physical evidence
if, believing that an investigation or official proceeding is pending, or about
to be instituted, [he] such person: (1) Alters, destroys, conceals or removes
any record, document or thing with purpose to impair its verity or availability
in such investigation or proceeding; or (2) makes, presents or uses any
record, document or thing knowing it to be false and with purpose to mislead
a public servant who is or may be engaged in such investigation or official
proceeding.’’
7
Section 9 of P.A. 15-211, which amended General Statutes (Rev. to 2015)
§ 53a-155, provides in relevant part: ‘‘(a) A person is guilty of tampering
with or fabricating physical evidence if, believing that a criminal investigation
conducted by a law enforcement agency or an official proceeding is pending,
or about to be instituted, [he] such person: (1) Alters, destroys, conceals
or removes any record, document or thing with purpose to impair its verity
or availability in such criminal investigation or official proceeding; or (2)
makes, presents or uses any record, document or thing knowing it to be
false and with purpose to mislead a public servant who is or may be engaged
in such criminal investigation or official proceeding. . . .’’
Additions to § 53a-155 (a) are indicated by underlining and deletions are
enclosed in brackets.
8
The defendant’s Facebook account contained the following, which was
admitted into evidence at trial: ‘‘I love [Rajewski] with all my heart and
would do anything for him! I’m sure u know he just broke up with me. I’m
sure you know I lied and said I saw [Moulson] get out of his car and go
after [Rajewski] in court. . . . I’m sure u know I gave him 100 [percent] of
me and loved him unconditionally when he was at his worst! [A]nd would
give up everything I have to be with him! . . . [S]o I’m sure u know he
broke my heart . . . . [P]lease tell him I will be here waiting. [A]nd he’s
my soulmate . . . . [H]e brought out the real me after being abused for
[seven] years . . . .’’