State v. Jordan ( 2014 )

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STATE OF CONNECTICUT v. VICTOR L. JORDAN, SR.
(SC 18995)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued January 13—officially released November 4, 2014
Pamela S. Nagy, assigned counsel, for the appel-
lant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Terence D. Mariani, senior assistant state’s
attorney, for the appellee (state).
Opinion
ROGERS, C. J. The two issues that we must resolve
in this certified appeal are whether the Appellate Court
properly concluded that the defendant, Victor L. Jordan,
Sr., was not deprived of his right to a fair trial due
to the prosecutor’s failure to correct the potentially
misleading testimony of two witnesses, and whether
this court should overrule its construction of the evi-
dence tampering statute, General Statutes § 53a-155,1
in State v. Foreshaw, 214 Conn. 540, 572 A.2d 1006
(1990), and hold that the defendant’s conduct in the
present case did not constitute evidence tampering
under § 53a-155.2 The defendant appeals from the judg-
ment of the Appellate Court affirming his conviction,
rendered after a jury trial, of attempt to commit robbery
in the third degree in violation of General Statutes
§§ 53a-49 (a) (2) and 53a-136, conspiracy to commit
robbery in the third degree in violation of General Stat-
utes §§ 53a-48 and 53a-136, and tampering with physical
evidence in violation of § 53a-155. The defendant makes
two primary claims on appeal. First, the defendant
claims that the Appellate Court improperly concluded
that the prosecutor’s failure to correct the potentially
misleading testimony of two witnesses denying they
were promised benefits by the state in exchange for
their testimony did not violate the defendant’s due pro-
cess right to a fair trial. Second, the defendant claims
that this court should overrule its interpretation of
§ 53a-155 in Foreshaw and hold that, under a proper
understanding of that statute, his conviction cannot
stand. We reject the defendant’s claim regarding the
prosecutor’s failure to correct the potentially mis-
leading testimony of two witnesses, and we also reject
his claim that Foreshaw should be overruled. We con-
clude, however, that under a proper understanding of
Foreshaw, the defendant’s conduct did not come within
the ambit of § 53a-155. Accordingly, we affirm in part,
and reverse in part, the judgment of the Appellate Court,
and conclude that the defendant’s conviction under
§ 53a-155 should be set aside.
The relevant facts and procedural history giving rise
to this appeal are set forth in the opinion of the Appel-
late Court. ‘‘The jury reasonably could have found the
following facts. On April 1, 2008, Tannith McDonnell,
the assistant manager of the Naugatuck Savings Bank
[bank] located at 565 Straits Turnpike in Watertown,
met an acquaintance, Patsy Lombardi, in the bank park-
ing lot at approximately 4 p.m. after she had locked the
bank’s doors for the day. While seated in Lombardi’s
car, [McDonnell] observed a man approach the bank
who was wearing a heavy black coat with a raised hood,
a camouflage ski mask, dark jeans and black gloves.
The man placed a gloved hand inside his pocket and
pulled ‘aggressively’ on the bank door with the other
hand. When the locked door would not open, the man
walked back down the sidewalk and out of sight.
McDonnell waited until the man cleared the corner and
then used Lombardi’s cell phone to call 911 and report
her observations to the police. Watertown [P]olice Offi-
cer Jeffrey McKirryher, who was on duty nearby direct-
ing traffic, received McDonnell’s report over his police
radio. McKirryher immediately saw a likely suspect and
when he called out to him, the man took off, running.
‘‘McKirryher chased the suspect onto Birch Meadow
Drive, a nearby cul-de-sac, where he saw a tan vehicle
with two distinctive black doors parked at the end of
the road. The suspect made brief contact with the opera-
tor of the tan vehicle and then ran into a wooded area.
As the car was driven away, McKirryher broadcast his
observations over his police radio. Shortly thereafter,
Watertown [P]olice Detective David Bromley heard the
report, saw the tan car and pursued it until it came to
a halt at a police roadblock.
‘‘Virginia Palmer was on Birch Meadow Drive walking
her dog when she saw a light-skinned black or Hispanic
man in a dark jacket running up her street while being
chased by police. Palmer observed that the fleeing man
was wearing a telephone earpiece, and she heard him
say, ‘[M]eet me on the other street, meet me on the
other street.’ The man then ran into the wooded area
at the top of the street. Gerald Boudreau was home on
Birch Meadow Drive that afternoon and saw a black
man wearing dark clothes and sunglasses run across
his backyard while removing his jacket and running
toward Sprucewood Road.
‘‘Katherine Desantis, who lived on Sprucewood Road,
which runs parallel to Birch Meadow Drive, saw a black
man wearing a dark jacket, dark jeans and a dark col-
ored ‘do-rag’ on his head, run from behind a neighbor’s
house. She noted that the man kept looking behind him
as if he was being pursued. While the man was in the
middle of the street, she saw the man remove his jacket,
revealing its bright colored lining. Desantis telephoned
the police as the man was in her neighbor’s yard, looking
around. Desantis next saw the man in her own backyard
removing his gray sweatshirt and then going around
to the back of her carport. Desantis’ husband, Dennis
Desantis, arrived home shortly after the police had left
and located a sweatshirt ‘crumbled up in a ball’ at the far
side of the carport. Two days later, Katherine Desantis
located a dark jacket with a bright red-orange lining in
a neighbor’s trash can. The police collected the gray
sweatshirt and the dark jacket from the Desantises.
When removing the jacket from the trash can, the police
also discovered a ‘black fabric type item’; a ‘neoprene-
like fabric mask’ that was black on one side and camou-
flaged on the other; a pair of black leather gloves; and
a ‘small, black plastic . . . shopping bag.’
‘‘The tan automobile with two black doors that was
halted by the police at the roadblock was an Infiniti
sedan registered to the defendant. The lone occupant
and operator of the vehicle was Herman Cordero. Cord-
ero testified that he fixed cars for a living and that he
had been working on the defendant’s car at a nearby
Super 8 Motel on the day of the incident. He stated
that, because he needed more tools, he decided to get
some from his house. Cordero testified that he drove
the defendant’s Infiniti, with the defendant as a passen-
ger, to retrieve the tools and that on the way the defen-
dant asked him to pull over in the LaBonne’s
Supermarket parking lot. LaBonne’s Supermarket and
[the bank] are on opposite ends of the same parking
lot. The defendant gave no reason for wanting to alight
from the car, but simply stated that he would be back
in a few minutes. Cordero claimed that because it took
the defendant longer to return than he had expected,
he decided to continue to his home to retrieve the tools
and then return to the parking lot for the defendant.
Once en route, however, he changed his mind about
driving alone to his home because he did not want the
defendant to think he was stealing his car. Accordingly,
he claimed, he pulled into a cul-de-sac for a few minutes
to wait. He stated that it was just a coincidence that
he stopped in the cul-de-sac that the fleeing suspect had
used as an escape route. Although the police discovered
three cell phones in the Infiniti pursuant to a search
warrant, Cordero denied making any contact with the
[defendant] between the time he dropped him off at
the parking lot and his confrontation with the police.
‘‘One of the cell phones discovered by the police led
them to Jennifer Campbell, a woman who was romanti-
cally involved with the defendant. Campbell testified
that the defendant called her at about 8 p.m. on April
1, 2008, and said that he needed help. He asked her to
meet him at the Super 8 Motel where, he said, he was
going by taxicab and where he would be with his wife
and children. Campbell testified that when she arrived
at the motel, the defendant asked her to rent a room
in her name, and he provided her with money for the
cost of the room. According to Campbell, after settling
into the room with her, the defendant attempted multi-
ple times to call a person named ‘Jun,’ but he could not
reach him. Although she knew who Jun was, she did
not learn that his real name was Herman Cordero until
after she was arrested. Campbell testified that she had
seen the defendant and Cordero, whom she knew as
Jun, together ‘[v]ery many’ times, and she described
the two men as ‘[v]ery tight . . . very close.’
‘‘While the defendant and Campbell were in the motel
room, the defendant expressed concern that ‘they’re’
going to connect him and her together because his
iPhone, left in the car, contained her first and last name
in its directory. Campbell stated that when she asked
the defendant who ‘they’ were, the defendant avoided
answering the question. After some further discussion,
Campbell called Eric Pearson to ask that he rent a
separate room for the defendant. Thereafter, Campbell
drove to her home in Bristol to retrieve clothing for the
defendant because his jeans were muddy and he was
wet and cold. Campbell testified that when she returned
with the clothing and asked the defendant why he was
wet, he replied that he was going to ‘commit a heist’
in Watertown but the building was closed, and that the
police had chased him through a muddy wooded area,
believing that he was the person who had been spotted
wearing a mask in the vicinity of the bank.
‘‘Campbell also testified that on April 2, 2008, the
defendant asked her for a ride to the court in Bridgeport.
Campbell agreed and drove to Waterbury in her bur-
gundy Buick LeSabre where she picked up the defen-
dant at a [7-Eleven] store. She drove the defendant to
the Super 8 Motel, where, she claimed, he got ‘very
excited’ and told her to ‘[k]eep going, get out of there,
we got to get out of here.’ She testified that she believed
the defendant was excited as a result of seeing Detec-
tives David McKnight and Michael Ponzillo of the Water-
bury [P]olice [D]epartment speaking with the
defendant’s wife at the Super 8 Motel. In his testimony,
McKnight stated that he saw a red Buick in the parking
lot, recognized the defendant as its front seat passenger
and locked eyes with him. McKnight testified that after
he saw the defendant motion the Buick’s operator to
keep moving, the car took off at a high rate of speed.
‘‘Later in the day, after Campbell received cell phone
messages that Waterbury detectives wanted to speak
with her, the defendant drove her to the police station.
According to Campbell, although she initially was unco-
operative, she eventually agreed to help the police try
to lure the defendant to a place where he could be
apprehended. That effort, however, proved unsuc-
cessful.
‘‘On April 16, 2008, the police tracked the defendant
to a residence on Congress Avenue in Watertown,
where he was found hiding in a closet. The defendant
refused to comply with the commands of the police to
submit to arrest. Instead, he was removed from the
residence by force and taken into custody.
‘‘The items of clothing and apparel seized by the
police from the Desantises’ neighbor’s trash can were
submitted to the state forensic laboratory for DNA anal-
ysis with the result that the defendant was included
as a contributor in each sample except one. The lone
exception was the mixture extracted from the collar of
the jacket. As to this sample, the police concluded only
that the defendant could not be eliminated as a con-
tributor.
‘‘Following the police investigation, the defendant
was charged by information with the following offenses:
count one, attempt to commit robbery in the first degree
in violation of [General Statutes] §§ 53a-49 (a) (2) and
53a-134 (a) (4); count two, conspiracy to commit rob-
bery in the first degree in violation of §§ 53a-48 and
53a-134; count three, attempt to commit larceny in the
second degree in violation of [General Statutes] §§ 53a-
49 (a) (2) and 53a-123 (a) (3); count four, conspiracy
to commit larceny in the second degree in violation of
§§ 53a-48 and 53a-123 (a) (3); and count five, tampering
with physical evidence in violation of § 53a-155.
‘‘At the conclusion of its case-in-chief in the defen-
dant’s jury trial, the state conceded that the evidence
was insufficient to find the defendant guilty of attempt
to commit [robbery in the first degree] and conspiracy
to commit robbery in the first degree. The parties
agreed, however, that sufficient evidence existed to find
the defendant guilty of the lesser offenses of attempt
to commit [robbery in the third degree] and conspiracy
to commit robbery in the third degree. Accordingly,
the trial court rendered judgment of acquittal on the
charged offenses relating to robbery in the first degree
and expressed its intention to submit the lesser inchoate
offenses to the jury. The court also rendered judgment
of acquittal on the counts charging the defendant with
attempt to commit [larceny in the second degree] and
conspiracy to commit larceny in the second degree.
‘‘Thereafter, the state filed an amended information
that conformed to the court’s rulings, and the jury found
the defendant guilty as charged in the amended informa-
tion. As noted, the defendant also had been charged in a
part B information with committing each of the charged
offenses while on pretrial release in violation of [Gen-
eral Statutes] § 53a-40b and with being a persistent seri-
ous felony offender in violation of General Statutes
§ 53a-40 (c). The defendant elected that the part B
charges be tried to the court. Following an evidentiary
hearing, the court found the defendant guilty as charged
in part B of the amended information. The court there-
after imposed a total effective sentence of thirty years
imprisonment, to be served consecutively to any sen-
tence the defendant was then serving.’’ (Footnotes omit-
ted.) State v. Jordan, 135 Conn. App. 635, 638–44, 42
A.3d 457 (2012). Additional facts will be set forth as nec-
essary.
The defendant appealed from the trial court’s judg-
ment to the Appellate Court, claiming, inter alia,3 that
he was denied a fair trial because the prosecutor failed
to correct the allegedly false testimony of Cordero and
Campbell; id., 658; and that his conviction of tampering
with physical evidence under § 53a-155 should be
reversed because his conduct did not fall within the
terms of the statute. Id., 652. In response to the prosecu-
torial impropriety claim, the state argued that the defen-
dant was not entitled to a new trial because (1) the
defendant had waived his due process claim by not
confronting the witnesses at trial, (2) the prosecutor
had not acted improperly, and (3) in the alternative, the
defendant was not harmed by the prosecutor’s failure to
correct the witnesses’ testimony. Id., 658. The Appellate
Court agreed with the defendant that he had not waived
his claim and that the prosecutor had a duty to correct
the testimony, but ultimately concluded that this impro-
priety had not denied the defendant his due process
right to a fair trial.4 Id., 667. With respect to the defen-
dant’s claim that, under a proper interpretation of § 53a-
155, his conduct did not violate that statute, the Appel-
late Court determined that this claim would require it
to overrule this court’s decision in Foreshaw, which
was a ‘‘task beyond [the Appellate Court’s] charter.’’
Id., 653. This certified appeal followed.
I
We first consider the defendant’s claim that the
Appellate Court improperly concluded that the prosecu-
tor’s failure to correct the potentially misleading5 testi-
mony of Cordero and Campbell did not deprive the
defendant of a fair trial. The defendant argues that the
prosecutor’s alleged impropriety violated his right to a
fair trial because there is a reasonable likelihood that
the potentially misleading testimony of these witnesses
could have affected the jury’s verdict as their testimony
was crucial to the state’s case. The state responds that
the prosecutor’s failure to correct the potentially mis-
leading testimony did not violate the defendant’s due
process right to a fair trial because there was sufficient
independent evidence of the defendant’s guilt.6 We
agree with the state.
‘‘The following additional facts are relevant to this
claim. Before Cordero testified and outside the pres-
ence of the jury, the prosecutor explained to defense
counsel and to the court on the record that he had
spoken to Cordero’s counsel and that Cordero, who
had been charged in connection with the present case,
indicated that he may elect to testify for the state. The
prosecutor further stated: ‘[J]ust so the record is clear,
what I said to [Cordero’s counsel] and what I said to
[defense counsel] about [Cordero’s] cooperation is that
if he testified we would bring his cooperation to the
sentencing judge . . . when his case is disposed of.
And that’s the extent of the agreement.’
‘‘Thereafter, Cordero appeared in court and testified
in the presence of the jury. He admitted that he was
currently incarcerated and charged with bank robbery
for two separate incidents. Following testimony regard-
ing the events of April 1, 2008, the prosecutor asked:
‘And what—what were you promised in exchange for
testifying here today?’ to which Cordero responded,
‘[n]othing.’ The prosecutor thereafter asked no further
questions to clarify the discrepancy between Cordero’s
answer and representations the prosecutor had made
to the court and counsel before Cordero’s testimony. On
cross-examination, the following exchange took place
between defense counsel and Cordero:
‘‘ ‘[Defense Counsel]: And you indicate you don’t
expect any kind of benefit from testifying here today?
‘‘ ‘[Cordero]: No, sir.
‘‘ ‘[Defense Counsel]: Okay. You—you don’t expect
to get any kind of consideration for your two robbery
cases for testifying here today?
‘‘ ‘[Cordero]: No, sir.
‘‘ ‘[Defense Counsel]: And you’ve been incarcerated
since the date of your arrest. Correct?
‘‘ ‘[Cordero]: Yes, sir.
‘‘After Cordero had concluded his testimony, and left
the witness stand, the prosecutor informed the court
that the state’s next witness, Campbell, was represented
by counsel, and that [the prosecutor] needed to speak
with her counsel. Thereafter, the prosecutor placed the
following information on the record, outside the pres-
ence of the jury, but in the defendant’s and defense
counsel’s presence: ‘The next witness is . . . . Camp-
bell. And again, as [defense counsel] is aware, she has
a pending case. I believe she’s charged with hindering
prosecution based on [the events relating to the case
on trial]. [Campbell] is represented by [counsel], and
[I] made the same representation to her and her client
as I did to [Cordero’s counsel] and his client . . . that
their cooperation, if any, would be brought to the atten-
tion of the sentencing judge at the time that [their cases]
are disposed of.’ Campbell then appeared in court and
testified in the presence of the jury regarding the events
of April 1 and 2, 2008. During direct examination, she
stated that she was charged with hindering prosecution
on the basis of her involvement with the defendant in
the present case. The following exchange then
occurred:
‘‘ ‘[The Prosecutor]: Now, after you talked to your
attorney, did you make any decisions about being more
forthcoming with the police and with the [S]tate’s
[A]ttorney’s [O]ffice; did you end up coming in and
giving more information?
‘‘ ‘[Campbell]: Yes.
‘‘ ‘[The Prosecutor]: Okay. Now, when you and I
spoke, it was [I]nspector Joe Forte [who] was there
and your attorney. Is that correct?
‘‘ ‘[Campbell]: Yes.
‘‘ ‘[The Prosecutor]: And what promises, if any, were
made to you about your testimony here today?
‘‘ ‘[Campbell]: None.
‘‘ ‘[The Prosecutor]: Is what you’re telling us here
today the truth?
‘‘ ‘[Campbell]: Yes.’
‘‘As with Cordero, the prosecutor asked no further
questions of Campbell to clarify the discrepancy
between her testimony and the prosecutor’s representa-
tions to the court and counsel. On cross-examination,
defense counsel did not ask Campbell any questions
on the subject of any agreement with the state.
‘‘Despite having been informed by the prosecutor that
both Cordero and Campbell had an agreement with the
state, defense counsel did not directly confront either
witness with this information. The record reveals that
he asked neither witness any questions pertaining to
any specific agreement either had with the state other
than general questions to Cordero as already noted.
‘‘During his jury argument, defense counsel identified
both Cordero and Campbell as being ‘charged in this
case,’ and he urged jurors to carefully consider their
testimony in light of an accomplice instruction that they
would receive from the court. While the prosecutor
argued that these witnesses were credible, no reference
was made to whether either or both had any agreement
regarding their impending sentencings. In its final
charge to the jury, the court identified Cordero and
Campbell as having provided accomplice testimony and
instructed the jury accordingly.’’ Id., 658–61.
The first certified question requires us to determine
whether the defendant was harmed by the prosecutor’s
failure to correct the potentially misleading testimony
of Cordero and Campbell.7 ‘‘The rules governing our
evaluation of a prosecutor’s failure to correct false or
misleading testimony are derived from those first set
forth by the United States Supreme Court in Brady v.
Maryland, 373 U.S. 83, 86–87, 83 S. Ct. 1194, 10 L. Ed.
2d 215 (1963), and we begin our consideration of the
[defendant’s] claim with a brief review of those princi-
ples. In Brady, the court held that the suppression by
the prosecution of evidence favorable to an accused
upon request violates due process [when] the evidence
is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the [prosecutor]. . . .
The United States Supreme Court also has recognized
that [t]he jury’s estimate of the truthfulness and reliabil-
ity 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. Napue v. Illi-
nois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217
(1959). Accordingly, the Brady rule applies not just to
exculpatory evidence, but also to impeachment evi-
dence . . . which, broadly defined, is evidence having
the potential to alter the jury’s assessment of the credi-
bility of a significant prosecution witness. . . .
Because a plea agreement is likely to bear on the motiva-
tion of a witness who has agreed to testify for the state,
such agreements are potential impeachment evidence
that the state must disclose. . . .
‘‘[A] prosecutor’s failure to disclose favorable evi-
dence will constitute a violation of Brady only if the
evidence is found to be material. . . . In a classic
Brady case . . . the evidence will be deemed material
only if there would be a reasonable probability of a
different result if the evidence had been disclosed. . . .
‘‘When, however, a prosecutor obtains a conviction
with evidence that he or she knows or should know to
be false, the materiality standard is significantly more
favorable to the defendant. [A] conviction obtained by
the knowing use of perjured testimony is fundamentally
unfair, and must be set aside if there is any reasonable
likelihood that the false testimony could have affected
the judgment of the jury. . . . This standard . . .
applies whether the state solicited the false testimony
or allowed it to go uncorrected . . . and is not substan-
tively different from the test that permits the state to
avoid having a conviction set aside, notwithstanding a
violation of constitutional magnitude, upon a showing
that the violation was harmless beyond a reasonable
doubt. . . . This strict standard of materiality is appro-
priate in such cases not just because they involve prose-
cutorial misconduct, but more importantly because
they involve a corruption of the truth-seeking function
of the trial process. . . . In light of this corrupting
effect, and because the state’s use of false testimony
is fundamentally unfair, prejudice sufficient to satisfy
the materiality standard is readily shown . . . such
that reversal is virtually automatic . . . unless the
state’s case is so overwhelming that there is no reason-
able likelihood that the false testimony could have
affected the judgment of the jury. . . .
‘‘In accordance with these principles, our determina-
tion of whether [the witness’] false testimony was mate-
rial under Brady and its progeny requires a careful
review of that testimony and its probable effect on the
jury, weighed against the strength of the state’s case
and the extent to which [the defendant was] otherwise
able to impeach [the witness].’’ (Citations omitted;
emphasis added; footnotes omitted; internal quotation
marks omitted.) Adams v. Commissioner of Correc-
tion, 309 Conn. 359, 369–73, 71 A.3d 512 (2013).
Applying the foregoing principles to the present case,
we conclude that the prosecutor’s failure to correct the
potentially misleading testimony of two witnesses did
not violate the defendant’s due process right to a fair
trial because, weighing the probable effect of that testi-
mony against the defendant’s impeachment of those
witnesses and the strength of the state’s case, there is
no reasonable likelihood that the potentially misleading
testimony could have affected the judgment of the jury.
Examining first the strength of the state’s case, there
was overwhelming evidence of the defendant’s guilt
even without the testimony of Cordero and Campbell.
See, e.g., id., 388. Specifically, the state presented the
following evidence to the jury independent of Cordero
and Campbell’s testimony. A male (perpetrator) dressed
in a heavy black coat with a raised hood, camouflage
ski mask, dark jeans, and black gloves attempted to
open the locked door of the bank. State v. Jordan,
supra, 135 Conn. App. 638. A police officer then chased
the perpetrator from the bank to a nearby automobile,
which was registered to the defendant, where the perpe-
trator spoke with Cordero, the operator of the automo-
bile. Id., 639. The automobile contained three cell
phones, at least one of which belonged to the defendant.
Id., 641. After speaking with Cordero, the perpetrator
ran down a nearby street, where three witnesses saw
him and later identified him as a black or Hispanic male
wearing dark clothing. Id., 639. One witness saw the
perpetrator remove a jacket with brightly colored lining
and a gray sweatshirt, both of which were subsequently
recovered alongside other clothing items. Id., 639–40.
State forensic laboratory DNA analysis revealed that
the defendant ‘‘was included as a contributor in each
[clothing] sample except one . . . [in which] the defen-
dant could not be eliminated as a contributor.’’ Id.,
643. While removing this clothing, the perpetrator ran
through the woods, where it was raining and muddy.
The police later found muddy, wet clothes in a motel
room occupied by the defendant’s family. When con-
fronted by the police, the defendant attempted to
escape by driving away from the motel and by hiding
in a closet before his eventual arrest.
In sum, the state’s case did not depend on the testi-
mony of Cordero and Campbell because the state pre-
sented overwhelming evidence independent of that
testimony connecting the defendant to the crime. As a
result, we disagree with the defendant that the testi-
mony of Cordero and Campbell was ‘‘vital’’ to the state’s
case. The testimony of Cordero was, at best, only par-
tially favorable to the state. Although Cordero testified
that the defendant was at a location near the bank at
the time of the crime, the rest of his testimony did
not further either party’s theory and, moreover, as the
prosecutor asserted in his closing statement, ‘‘didn’t
make much sense when you put it under a microscope.’’8
Campbell provided more support for the state than
Cordero, but much of her testimony was corroborative
of other evidence.9 The portions of her testimony that
were not corroborated by other witnesses, such as the
defendant’s confession to her on the night of the crime,
were also unnecessary to establish the defendant’s guilt
beyond a reasonable doubt in light of the substantial
evidence connecting the defendant to the crime.
Turning to the question of whether defense counsel
was able to impeach the witnesses’ testimony, we con-
clude that the defendant had ample opportunity, and did
in fact, impeach Cordero and Campbell.10 Both defense
counsel and the prosecutor discounted much of Cord-
ero’s testimony in their closing statements, suggesting
that Cordero’s testimony ‘‘doesn’t make any sense’’ and
implying that he was more involved with the crime
than he had revealed. Regarding Campbell’s credibility,
defense counsel emphasized in his cross-examination
that she had initially been uncooperative with the police
and had told them that she knew nothing about the
attempted robbery. She also testified that she had been
arrested for hindering prosecution on April 16, 2008,
and made conflicting statements about whether she told
the police about the defendant’s involvement before or
after her arrest. In his closing statement, defense coun-
sel reiterated that Campbell had ‘‘changed her story
twice’’ and suggested that there might have been some
‘‘consideration’’ for one of her statements in particular
as she had added more information on the same day
that she was released from jail.
Defense counsel also challenged Campbell on a vari-
ety of other grounds. For example, he questioned her
testimony that the defendant was ‘‘wet’’ when she spoke
to him after midnight on April 1, 2008, insinuating that
it would not make sense for him to still be wet if the
attempted robbery occurred eight hours earlier.
Defense counsel suggested that it was strange for the
defendant and his family to have stayed at the same
motel as Campbell if, as she testified, the defendant
believed that the police would be able to find Campbell
via the cell phone in his vehicle. Defense counsel also
raised the fact that Campbell was an occasional drug
user. In his closing argument, defense counsel empha-
sized that Campbell had ‘‘much to gain in this case from
coming here and testifying . . . .’’ Finally, the trial
court provided the jury with instructions on accomplice
testimony, stating, in relevant part, that ‘‘[i]n weighing
the testimony of . . . Cordero and . . . Campbell,
you should consider the fact that they are facing charges
as accomplices to the crimes charge[d] in this case.’’11
After evaluating the defendant’s opportunity to
impeach Cordero and Campbell within the context of
the entire trial, we conclude that the state’s case was
so overwhelming that there was no reasonable likeli-
hood that the potentially misleading testimony of Cord-
ero and Campbell could have affected the judgment of
the jury. Accordingly, we conclude that the Appellate
Court properly determined that the prosecutor’s failure
to correct these witnesses’ testimony did not deprive
the defendant of a fair trial.
II
We next consider the defendant’s claim that this court
should overrule its construction of § 53a-155 (a) in State
v. Foreshaw, supra, 214 Conn. 540, and hold that there
was insufficient evidence to support his conviction for
tampering with physical evidence in violation of § 53a-
155 (a). See footnote 2 of this opinion. The defendant
claims that the evidence tampering statute was not
meant to apply to situations in which an individual
discards evidence in an attempt to evade the police.
On the basis of our review of the record, it is clear that
the defendant seeks to overrule Foreshaw only because
of his mistaken belief, shared by the Appellate Court
and based on a misunderstanding of this court’s holding
in Foreshaw, that he cannot prevail on his insufficiency
claim unless we overrule Foreshaw. See State v. Jor-
dan, supra, 135 Conn. App. 653 (‘‘as the defendant
acknowledges in his brief, his success in this claim
would require us to overrule a Supreme Court decision,
a task beyond [the Appellate Court’s] charter’’). To the
extent that this court’s holding in Foreshaw is unclear,
we take this opportunity to clarify it. We find no cogent
reason or inescapable logic, however, that would com-
pel us to overrule Foreshaw, and, accordingly, we
decline to do so. See, e.g., O’Connor v. O’Connor, 201
Conn. 632, 639, 519 A.2d 13 (1986). Nonetheless, we
agree with the defendant that, under a proper interpre-
tation of § 53a-155 (a) and Foreshaw, there was insuffi-
cient evidence in the present case to support his
conviction for tampering with physical evidence.
Accordingly, we reverse in part the Appellate Court’s
judgment with respect to the defendant’s conviction
under § 53a-155.
We begin our analysis with the language of the statute
at issue. Section 53a-155 (a) provides in relevant part
that ‘‘[a] person is guilty of tampering with or fabricating
physical evidence if, believing that an official proceed-
ing is pending, or about to be instituted, he . . .
[a]lters, destroys, conceals or removes any record, doc-
ument or thing with purpose to impair its verity or
availability in such proceeding . . . .’’ (Emphasis
added.)12 The state therefore must establish that the
defendant (1) believed that an official proceeding was
pending or about to be instituted, (2) discarded the
evidence at issue, and (3) acted with the intent to pre-
vent the use of the evidence at an official proceeding.
Section 53a-155 (a) does not specify, however, whether
the phrase ‘‘about to be instituted’’ connotes probability
of occurrence or temporal proximity. It also does not
establish whether the ‘‘belief’’ is what a reasonable per-
son would believe, or, rather, what the defendant
believed.
The court answered these questions, albeit implicitly,
in Foreshaw. In that case, the defendant, Bonnie Jean
Foreshaw, shot and killed the victim in front of several
witnesses and fled the scene in her automobile. State
v. Foreshaw, supra, 214 Conn. 542–43. When a police
officer arrested her shortly thereafter, the officer found
a bullet in her vehicle consistent with the gun that had
been used to shoot the victim. Id., 543. When the police
asked Foreshaw where the gun was, Foreshaw
responded that she ‘‘had thrown [it] out of the car win-
dow.’’ Id. Foreshaw then ‘‘retraced her route with the
police in an attempt to find the gun, but eventually
became confused and upset and discontinued her
search. The gun was never recovered.’’ Id. At trial, Fore-
shaw testified that ‘‘[u]pon seeing [the victim] fall, [she]
immediately drove away and discarded the gun en route
so that she would not be caught with it.’’ (Emphasis
added.) Id.
On appeal, Foreshaw challenged, inter alia, the suffi-
ciency of the evidence supporting her conviction for
tampering with physical evidence in violation of § 53a-
155 (a) (1). Id., 549. Specifically, Foreshaw argued that
‘‘because she discarded the gun prior to any contact
with law enforcement officers or the judicial system,
she could not have believed an official proceeding was
‘about to be instituted.’ ’’ Id., 550. Foreshaw contended
that the language of § 53a-155 (a) ‘‘connotes temporal
proximity between the alleged act and the official pro-
ceeding.’’ Id., 550–51. Additionally, Foreshaw argued
that ‘‘even if the state proved that she had acted with
the intent to make the gun unavailable to the police,
such an intent would not warrant conviction under the
language of § 53a-155 (a) (1).’’ (Emphasis in original.) Id.
The court disagreed, concluding that, on the basis of
the evidence presented by the state, the jury reasonably
could have concluded that Foreshaw was guilty of tam-
pering with physical evidence beyond a reasonable
doubt. The state offered evidence that, inter alia, several
individuals had witnessed Foreshaw shooting the victim
and that Foreshaw admitted to discarding the gun ‘‘so
that she would not be caught with it.’’ Id., 543. The
court concluded that this evidence provided a sufficient
basis for the jury to have inferred the belief, the dis-
card,13 and the intent elements of § 53a-155 (a). Id.,
550–51. To the extent that the reasoning of Foreshaw
was unclear, we take this opportunity to clarify it today.
With respect to the belief element, the jury reasonably
could have concluded that Foreshaw believed an offi-
cial proceeding was ‘‘about to be instituted’’ based on
the fact that Foreshaw shot the victim in the presence
of numerous witnesses and anticipated being ‘‘caught’’
by the police. Id., 543. Although Foreshaw had no prior
contact with the police before disposing of the gun,
the court reasoned that § 53a-155 (a) does not require
temporal proximity, but, rather, the statute ‘‘speaks to
that which is readily apt to come into existence or to
be contemplated . . . .’’ (Emphasis added.) Id., 551. Put
another way, § 53a-155 (a) applies, no matter what stage
the police have actually reached in their investigation,
as long as the defendant believes that it is probable that
an official proceeding will arise. This interpretation is
consistent with the commentary to the Model Penal
Code, from which our physical evidence tampering stat-
ute was adapted,14 which provides that ‘‘the word ‘about’
should be construed more in the sense of probability
than temporal relation.’’ (Emphasis added.) 2 A.L.I.,
Model Penal Code and Commentaries (1980) § 241.7,
comment 2, p. 178. It is also consistent with our interpre-
tation of an identical phrase in General Statutes § 53a-
151 (a).15 See State v. Ortiz, 312 Conn. 551, 569, 93 A.3d
1128 (2014) (‘‘[w]e conclude that ‘about to be instituted’
signifies probability’’). Thus, the court determined that
the jury reasonably could have concluded that Fore-
shaw discarded the gun believing that an official pro-
ceeding was probable because she shot the victim in
view of several witnesses and testified that she ‘‘dis-
carded the gun . . . so that she would not be caught
with it.’’ State v. Foreshaw, supra, 214 Conn. 543.
With respect to the intent element, the jury reason-
ably could have concluded that Foreshaw disposed of
the gun with intent to prevent its use in an official
proceeding based on the same facts. The court noted
that the police play a ‘‘crucial role’’ in official proceed-
ings. Id., 551. This crucial role often involves gathering
evidence, explaining that evidence to a jury, and testi-
fying against the defendant. The court in Foreshaw rea-
soned that acting with the intent to keep evidence from
the police, who play a crucial role in official proceed-
ings, may support an inference that a defendant intends
to prevent the availability of that evidence at an official
proceeding when the defendant believes such a pro-
ceeding is probable. See id. Thus, the court determined
that the jury reasonably could have concluded that
Foreshaw, who admittedly discarded the gun so that she
would not be ‘‘caught with it’’ when police apprehended
her; id., 550; intended to prevent the use of the gun at
the official proceeding that she believed was about to
be instituted and, therefore, was guilty beyond a reason-
able doubt of tampering with physical evidence. Id., 551.
In other words, because Foreshaw anticipated that
the police would apprehend her on the basis of informa-
tion connecting her to the shooting, she disposed of
the gun believing that an official proceeding, and not
just an investigation, was pending or probable. The
jury thus reasonably could have inferred that Foreshaw
discarded the evidence to prevent its use against her
in an official proceeding that she believed was probable.
Conversely, had Foreshaw discarded the gun to prevent
detection or to avoid being implicated in the shooting
in the first instance, and thus believing that only an
investigation, and not an official proceeding, was pend-
ing or probable, the belief and intent elements under
§ 53a-155 would be lacking.
The defendant contends that Foreshaw was wrongly
decided because § 53a-155 does not contain the word
‘‘investigation,’’ whereas the Model Penal Code physical
evidence tampering provision from which it was
adapted contains both ‘‘official proceeding’’ and ‘‘inves-
tigation.’’16 See Model Penal Code and Commentaries,
supra, § 241.7, p. 175. We agree with the defendant that
the legislature restricted the scope of the tampering
with physical evidence statute by omitting the word
‘‘investigation.’’ We disagree with the defendant, how-
ever, that Foreshaw improperly extends liability under
the evidence tampering statute to conduct that the legis-
lature deliberately excluded from the scope of § 53a-
155.17
First, the omission of the word ‘‘investigation’’ from
§ 53a-155 does not exclude all physical evidence dis-
carded during the course of a police investigation
because the application of the statute is not dependent
on the point in time in which the defendant’s conduct
occurs. Instead, the plain language of § 53a-155 indi-
cates that it applies when the defendant believes that
an official proceeding probably will occur. See Model
Penal Code and Commentaries, supra, § 241.7, com-
ment 2, p. 178 (‘‘[t]he prosecution must establish that
the actor believed that an official proceeding or investi-
gation was pending or about to be instituted but need
not prove that such was in fact the case’’ [emphasis
added]). A defendant certainly could believe that an
official proceeding probably would occur while an
investigation is pending. For instance, if the defendant
is aware that the police have assembled a significant
amount of evidence against him during an investigation,
then it is logical that the defendant would also believe
that an official proceeding against him is probable.
In fact, § 53a-155 must include at least some attempts
to discard evidence that occur during a police investiga-
tion, because otherwise the phrase ‘‘about to be insti-
tuted’’ in the statute would have no meaning. For
instance, if we were to determine that § 53a-155
excluded situations in which a defendant discarded evi-
dence while a police investigation was underway, the
statute would apply only when an official proceeding
was ‘‘pending’’ and never when it was ‘‘about to be
instituted . . . .’’ Thus, although we emphasize that
§ 53a-155 does not include all acts to dispose of evi-
dence that occur during a police investigation, the stat-
ute does include at least some of these acts.
Instead, the omission of the term ‘‘investigation’’ from
§ 53a-155 excludes situations in which the defendant
believes that only an investigation, but not an official
proceeding, is likely to take place. For instance, in a
scenario in which an individual commits a crime with
no witnesses, and he immediately thereafter discards
the one piece of physical evidence connecting him to
the crime, the individual certainly could believe that
the police would investigate the crime, but he would
have no reason to believe that an official proceeding
would likely occur because there would be no evidence
or witnesses upon which the police could rely to locate
and arrest him. In contrast, when an individual knows
that there is significant evidence connecting him to the
crime, a jury reasonably could infer that the individual
believed that the investigation probably would progress
into an official proceeding.18 We emphasize, however,
that it is not the existence of an investigation that is key
but, rather, whether the defendant believes an official
proceeding is pending or probable.
This analysis ensures that the focus of the inquiry is
on the culpability of the actor, rather than on ‘‘external
factors wholly unrelated to [the actor’s] purpose of
subverting the administration of justice.’’ Model Penal
Code and Commentaries, supra, § 241.7, comment 2, p.
178. The Model Penal Code commentary aptly explains
why culpability under the physical evidence tampering
statute should not be dependent on the actual stage of
police involvement: ‘‘Prior laws against tampering with
evidence often required that an official proceeding or
investigation actually be pending or in fact be under
consideration by the public authorities. Formulations
of this sort sometimes made liability of the actor turn
on external factors wholly unrelated to his purpose
of subverting the administration of justice. The Model
[Penal] Code provision, on the other hand, focuses
directly on the culpability of the individual actor.’’
(Footnote omitted.) Id.19
In summary, this court’s decision in Foreshaw is con-
sistent with these principles because it held that a defen-
dant may be found guilty of tampering with evidence
during the course of a police investigation only when
the defendant has destroyed or concealed evidence of
a crime and the circumstances would support a finding
that the defendant believed that an official proceeding,
as defined in General Statutes § 53a-146 (1), was
about to be instituted and intended to impair the avail-
ability of the evidence at that proceeding. See State
v. Foreshaw, supra, 214 Conn. 551. Contrary to the
defendant’s contention in the present case, this court
did not conclude in Foreshaw that a defendant may
be found guilty of tampering with evidence when the
defendant has destroyed or concealed evidence during
an investigation in order to avoid detection.
In light of the foregoing, we decline to overrule this
court’s prior construction of § 53a-155 in Foreshaw.
Accordingly, we apply the holding in Foreshaw to the
present case. See footnote 2 of this opinion. The defen-
dant claims that his conviction must be reversed
because there was no evidence that his intent at the
time he discarded the clothing and mask was to prevent
its use against him at a criminal trial that he believed
probable. The defendant contends that the only reason-
able view of the evidence is that he discarded his cloth-
ing and mask while being closely pursued by a police
officer in order to prevent its use in an investigation
so that he could escape detection and avoid arrest. We
agree with the defendant, and, therefore, we conclude
that the Appellate Court improperly determined that
the evidence was sufficient to support the conviction
of tampering with physical evidence.
When evaluating whether there is sufficient evidence
to support a conviction, ‘‘[i]t is our function to review
the evidence and construe it as favorably as possible
with a view toward sustaining the conviction, and
then [to] determine whether, in light of the evidence,
the trier of fact could reasonably have reached the
conclusion it did reach.’’ (Emphasis added; internal quo-
tation marks omitted.) State v. Foreshaw, supra, 214
Conn. 551. Indeed, it is axiomatic that ‘‘[t]his court
cannot substitute its own judgment for that of the jury
if there is sufficient evidence to support the jury’s ver-
dict.’’ (Internal quotation marks omitted.) State v.
Green, 261 Conn. 653, 667, 804 A.2d 810 (2002).
In determining whether the jury reasonably could
have concluded as it did, this court has stated: ‘‘[I]t is
a function of the jury to draw whatever inferences from
the evidence or facts established by the evidence it
deems to be reasonable and logical. . . . Because [t]he
only kind of an inference recognized by the law is a
reasonable one . . . any such inference cannot be
based on possibilities, surmise or conjecture. . . . If
[the] correlation [between the facts and the conclusion]
is sufficiently compelling, the inference is reasonable.
But if the correlation between the facts and the conclu-
sion is slight, or if a different conclusion is more closely
correlated with the facts than the chosen conclusion,
the inference is less reasonable. At some point, the
link between the facts and the conclusion becomes so
tenuous that we call it speculation.’’ (Internal quotation
marks omitted.) Id., 667–68.
Applying these principles to the facts in the present
case, 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. The record reveals that the defendant took off
running when a police officer called out to him within
minutes of the attempted bank robbery. State v. Jordan,
supra, 135 Conn. App. 638. Even if the defendant
believed that the police officer had a description of the
alleged bank robber’s clothing, there was no evidence
that the defendant believed that the police officer knew
his identity or had any other information connecting
him to the crime. In other words, at that point in time,
the clothing was the only evidence linking the defendant
to the attempted bank robbery. Therefore, it would be
unreasonable for the jury to have inferred from the fact
that the defendant absconded from the police officer
that the defendant believed that an official proceeding
against him was probable.
The record also reveals that the police officer chased
the defendant past a vehicle, driven by Cordero, that
was registered to the defendant. Id., 639, 640. As the
defendant ran past the vehicle, he said to Cordero ‘‘meet
me on the other street, meet me on the other street.’’
(Internal quotation marks omitted.) Id., 639. The defen-
dant’s attempt to enlist Cordero’s assistance as a get-
away driver rather than tell Cordero to flee separately
not only underscores the defendant’s intent to avoid
detection, but also undermines any inference that he
believed that the police would be able to trace the
vehicle to him. Accordingly, this fact militates against
an inference that the defendant believed an official pro-
ceeding against him was probable when he discarded
the clothing.
Even if we were to assume, however, that the jury
reasonably could have inferred that the defendant knew
that the police officer saw him speak to Cordero, the
jury would necessarily have to stack inferences based
on surmise to conclude that the defendant believed
that an official proceeding was probable. To reach this
conclusion, the jury had to infer that the defendant
believed at the time he discarded the clothing that
police would apprehend the vehicle, use its contents
to ascertain the defendant’s identity, and successfully
locate and arrest him. Thus, the jury had to infer that
the defendant realized when he discarded the clothing
that the police officer would describe the vehicle to
assisting officers, and that the assisting officers would
be dispatched to the scene in time to locate and appre-
hend the vehicle. Beyond that, the jury would have had
to infer that the defendant realized when he discarded
the clothing that the items contained in the vehicle,
once in police custody, would lead police to Campbell.20
And finally, even if all of the foregoing inferences were
reasonable, the jury still had to infer that the defendant
believed, when he discarded the clothing, that Campbell
would help the police to locate and arrest the
defendant.21
Upon the facts favorably construed and the infer-
ences reasonably drawn therefrom, we conclude that
the evidence was not sufficient to support the defen-
dant’s conviction for tampering with physical evidence
in violation of § 53a-155. While we must not substitute
our judgment for that of the jury, the reviewing court
must determine whether the jury reasonably could have
concluded as it did. In the present case, the jury had
to speculate to conclude that when the defendant dis-
carded his ‘‘ ‘robber garb’ ’’ he believed it was probable
that he would be apprehended and arrested for the
attempted bank robbery.
Instead, the only reasonable inference from the facts
in the present case is 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. There is no evidence that when
the defendant discarded the clothing he believed that
the police officer had any information, other than the
clothing, linking him to the attempted bank robbery.
Thus, the defendant discarded the only piece of evi-
dence connecting him to the crime in order to thwart
a police investigation that was actively underway.
Although the defendant may well have been uncertain
that he would escape detection and avoid arrest, a mere
apprehension of being caught does not rise to the level
of a subjective belief that an official proceeding is about
to be instituted. Indeed, if believing that an official
proceeding might occur were sufficient under § 53a-
155, then conceivably every defendant who discards
evidence knowing that a police investigation is under-
way could be found guilty of evidence tampering, since
knowledge of an investigation almost invariably gives
rise to apprehension that the investigation might prog-
ress to an official proceeding. Certainly, the legislature
did not intend for the evidence tampering statute to
sweep so broadly.
Finally, although we recognize that in certain
instances a defendant’s intent to keep evidence from
the police may support a reasonable inference that the
defendant also intends to keep evidence from being
used in an official proceeding, the defendant must
believe that an official proceeding is probable. The facts
in the present case do not support a reasonable infer-
ence that, at the time the defendant discarded the cloth-
ing, he believed that an official proceeding was
probable. Therefore, we conclude that there was insuffi-
cient evidence to support the defendant’s conviction
of tampering with physical evidence under § 53a-155.
Accordingly, we reverse the judgment of the Appellate
Court with respect to the defendant’s conviction under
§ 53a-155.
The judgment of the Appellate Court is reversed only
with respect to the charge of tampering with physical
evidence and the case is remanded to that court with
direction to remand the case to the trial court with
direction to render judgment of not guilty on that
charge; the judgment is affirmed in all other respects.
In this opinion McDONALD and ROBINSON, Js., con-
curred, and ESPINOSA, J., concurred in the result.
1
General Statutes § 53a-155 (a) provides: ‘‘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.’’
2
We granted the defendant’s petition for certification to appeal limited
to the following questions: (1) ‘‘Did the Appellate Court properly conclude
that the prosecutor’s failure to correct the misleading testimony of Herman
Cordero and Jennifer Campbell did not deprive the defendant of his due
process right to a fair trial?’’; and (2) ‘‘Should this court overrule its construc-
tion of . . . § 53a-155 in State v. Foreshaw, [supra, 214 Conn. 540]?’’ State
v. Jordan, 305 Conn. 918, 47 A.3d 388 (2012).
Although the second certified question was limited to whether this court
should overrule its construction of § 53a-155 in Foreshaw, it is implicit in this
question that the defendant is claiming that, under a proper interpretation of
§ 53a-155, his conduct did not violate that statute. Accordingly, we also
consider whether there was sufficient evidence to support the defendant’s
conviction under § 53a-155 as properly interpreted.
3
The defendant also made the following three claims: (1) the trial court
abused its discretion when it admitted evidence of prior misconduct for the
limited purpose of proving the defendant’s criminal intent; State v. Jordan,
supra, 135 Conn. App. 644; (2) his due process rights were violated because
the state failed to prove that he intended to use or threatened to use force
while committing a larceny; id., 654; and (3) the state did not comply with
General Statutes § 54-64e (b) (4), which provides that a defendant shall
receive notice that any crime committed while on release may be subject
to enhanced penalties. Id., 668–69. The Appellate Court rejected each of
these claims; id., 652, 658, 669; and the defendant has not challenged these
rulings in this certified appeal.
4
In reaching this conclusion, the Appellate Court relied on the factors
set forth in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). On
appeal, both parties agree that, if there is a violation of the standard set
forth in Napue v. Illinois, 360 U.S. 264, 269–71, 79 S. Ct. 1173, 3 L. Ed. 2d
1217 (1959), which requires that a prosecutor apprise the court when he or
she knows a witness is giving substantially misleading testimony, then this
court should apply the Napue standard in assessing whether there was harm.
5
The state concedes in its brief that there is ‘‘no dispute’’ that the relevant
testimony in the present case was ‘‘potentially misleading . . . .’’
6
The state also raises two alternative grounds for affirmance: (1) the
defendant waived his due process claim because he failed to confront Cord-
ero and Campbell with their allegedly false statements at trial; and (2)
the Appellate Court improperly concluded that the prosecutor violated the
standard set forth in Napue v. Illinois, 360 U.S. 264, 269–71, 79 S. Ct. 1173,
3 L. Ed. 2d 1217 (1959). As we explain in footnote 10 of this opinion, we
do not reach these alternative grounds for affirmance because we agree
with the state on the certified question.
7
The Appellate Court determined that while the prosecutor’s failure to
correct the misleading testimony was improper, the prosecutor’s improprie-
ties were harmless. State v. Jordan, supra, 135 Conn. App. 667. The defendant
sought certification on the harmless issue and the state seeks, as an alterna-
tive ground for affirmance, a determination that the Appellate Court improp-
erly found prosecutorial improprieties. We agree with the Appellate Court
that the alleged improprieties were harmless and thus need not reach the
alternative grounds for affirmance. Nevertheless, nothing in this opinion
should be construed to suggest that we concur in the Appellate Court’s
determination that improprieties occurred.
8
Specifically, Cordero testified that he dropped the defendant off in the
parking lot of LaBonne’s Supermarket in Watertown, and that the defendant
was wearing black jeans and a black jacket but not a face mask, gloves, or
a ‘‘hoodie.’’ Cordero stated that he waited for ten to fifteen minutes, decided
to drive to his house to get some tools to work on the defendant’s car,
pulled into a cul-de-sac located approximately ‘‘a couple hundred feet away
from the parking lot,’’ and then decided to turn back so that the defendant
would not think he had stolen the car. On his way back, Cordero asserted
that he saw a police officer running up the road toward him, but that he
had no contact with the defendant at this time.
9
For instance, there is independent testimony and evidence that the perpe-
trator had run through a muddy, swampy wooded area and that wet, muddy
clothes were found in the motel room in which the defendant’s family was
staying. In addition, although only Cordero and Campbell testified that the
defendant and Cordero were acquainted, it is uncontested that Cordero was
in a vehicle registered to the defendant at the time of the crime. Therefore, the
existence of a friendship is not necessarily relevant. Moreover, Campbell’s
testimony that the defendant had urged her to drive away upon seeing police
officers outside the motel was duplicative of Detective McKnight’s testimony
recounting this same event.
10
We emphasize that the opportunity to impeach is not outcome determi-
native but, rather, should be evaluated within the context of the strength
of the state’s case. For instance, in Adams v. Commissioner of Correction,
supra, 309 Conn. 386, the court concluded that, when a witness’ testimony
was crucial to the state’s case, the fact that defense counsel was able to
impeach the witness ‘‘was not a substitute for cross-examination about the
relationship that in fact existed between the leniency that he had been
promised and his testimony on behalf of the state.’’ In the present case,
however, the state’s case was not dependent on the credibility of Cordero
or Campbell because there was significant additional testimony and physical
evidence of the defendant’s guilt. Accordingly, the fact that defense counsel
was able to impeach Cordero and Campbell bolsters our conclusion that
the defendant was not harmed by the prosecutor’s failure to correct their tes-
timony.
11
The defendant points out that the prosecutor used Campbell’s testimony
to his benefit during closing argument, relying on Jenkins v. Artuz, 294
F.3d 284 (2d Cir. 2002). For instance, the prosecutor consistently emphasized
that Campbell’s testimony ‘‘matche[d] up perfectly’’ with other evidence and
that this consistency ‘‘bolsters her credibility in other regards . . .
[because] [i]f you can rely on the details she gives about those things, you
can rely on the details she gives about everything.’’ As we previously have
explained, the strength of the state’s case and defense counsel’s impeach-
ment of Campbell render these statements ultimately harmless. The testi-
mony of all the witnesses who saw the perpetrator and described his clothing,
the DNA evidence on that clothing, the wet and muddy clothing found in
the motel room of the defendant’s family, and the defendant’s subsequent
evasive actions all provide strong evidence of his guilt. In contrast, in Jen-
kins, the witness at issue ‘‘provided the only evidence of motive’’ and was
one of only two witnesses ‘‘specifically link[ing]’’ the defendant to the crime.
Jenkins v. Artuz, supra, 295. Further, ‘‘the remaining testimony [for the
state] was weak or problematic.’’ Id.
12
General Statutes § 53a-146 (1) defines ‘‘ ‘official proceeding’ ’’ as ‘‘any
proceeding held or which may be held before any legislative, judicial, admin-
istrative or other agency or official authorized to take evidence under oath,
including any referee, hearing examiner, commissioner or notary or other
person taking evidence in connection with any proceeding.’’
General Statutes 53a-146 (8) defines ‘‘ ‘[p]hysical evidence’ ’’ as ‘‘any arti-
cle, object, document, record or other thing of physical substance which is
or is about to be produced or used as evidence in an official proceeding.’’
13
Foreshaw admitted to having disposed of the gun in her statements to
the police and in her testimony, and, thus, the discard element was not at
issue. See State v. Foreshaw, supra, 214 Conn. 543.
14
Section 53a-155 was enacted as part of ‘‘a comprehensive revision of
the criminal code that was approved by the legislature in 1969.’’ State v.
Salamon, 287 Conn. 509, 541, 949 A.2d 1092 (2008). This statute, amongst
many others in the criminal code, was adopted from the Model Penal Code.
The Model Penal Code provides in relevant part: ‘‘A person commits a
misdemeanor if, believing that an official proceeding or investigation 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 investi-
gation . . . .’’ 2 A.L.I., Model Penal Code and Commentaries (1980) § 241.7,
p. 175.
15
General Statutes § 53a-151 (a) provides: ‘‘A person is guilty of tampering
with a witness if, believing that an official proceeding is pending or about
to be instituted, he 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.’’ (Emphasis added.)
16
See footnote 14 of this opinion.
17
The defendant also relies on several decisions from other states in
support of his claim that Foreshaw was improperly decided. We are hesitant
to adhere to the logic of those decisions, however, as most states’ tampering
with physical evidence statutes are different from our own. See Model Penal
Code and Commentary, supra, § 241.7, comment 1, p. 177 (summarizing
differences between tampering with physical evidence statutes). We do
observe, however, that most states that have omitted ‘‘investigation’’ from
their statutes have interpreted their statutes in a manner consistent with
Foreshaw. See Frayer v. People, 684 P.2d 927, 928, 929 (Colo. 1984) (conclud-
ing that defendant was guilty of tampering with physical evidence when
she threw and broke bottle containing narcotic cough syrup while struggling
with police); Commonwealth v. Henderson, 85 S.W.3d 618, 620 (Ky. 2002)
(concluding that defendant was guilty of tampering with physical evidence
when he put money from stolen purse in insole of his shoe while being
chased by police); People v. Wilkins, 111 A.D. 3d 451, 974 N.Y.S.2d 419
(2013) (concluding that defendant was guilty of tampering with physical
evidence when defendant discarded ‘‘small ziploc bags’’ while fleeing from
police after drug transaction).
18
Justice Zarella disagrees with our implementation of Foreshaw, and
would conclude that § 53a-155 does not require the state to present proof
of the defendant’s prior knowledge of evidence directly connecting him to
the crime. We are unable to perceive, however, why a defendant who had
no such knowledge would ever ‘‘[believe] that an official proceeding is
pending, or about to be instituted,’’ as required by § 53a-155.
19
We also note that this interpretation is consistent with this court’s
interpretation of a similar statute, § 53a-151, which prevents tampering with
witnesses. See State v. Ortiz, supra, 312 Conn. 568–70; State v. Cavallo, 200
Conn. 664, 668–69, 513 A.2d 646 (1986).
20
Campbell testified at trial that on the evening of the attempted robbery,
the defendant expressed concerns to her that the police would ‘‘connect
him and her together because his iPhone, left in the car, contained her first
and last name in its directory.’’ State v. Jordan, supra, 135 Conn. App. 641.
This testimony, however, does not support a reasonable inference that
the defendant believed that an official proceeding was probable when he
discarded the clothing.
The focus of the inquiry for purposes of the evidence is on the defendant’s
subjective belief and intent at the time he discarded the clothing. The fact
that the defendant may have believed hours after the challenged discard
conduct that police might be able to identify and locate him does not inform
the question of whether he believed that an official proceeding was probable
when he discarded the clothing.
21
Justice Zarella believes that Campbell’s testimony that the defendant
had told her that he believed that the police officer who was chasing him
assumed that he was the person who had attempted to enter the bank is
indicative of the defendant’s guilt. We disagree. The evidence supports a
conclusion that, while the defendant was still wearing the clothes that linked
him to the commission of the crime, Officer McKirryher pursued him until
he entered a wooded area. Thus, the most reasonable explanation for the
defendant’s subsequent removal and discarding of the clothes, which Justice
Zarella himself characterizes as ‘‘highly identifiable,’’ was that he did so in
the hope that, if the police ultimately apprehended him, they would be
unable to identify him as the person who had been wearing the clothes.
Justice Zarella also contends that the fact that the defendant spoke to
Cordero while running from McKirryher constitutes evidence that he knew
that the police had evidence connecting him to the attempted bank robbery.
Thus, Justice Zarella contends that the defendant deliberately engaged in
conduct—speaking to Cordero—that he knew would likely result in his
identification as the perpetrator. Again, we disagree. It is far more likely
that the defendant spoke to Cordero in the belief that the police officer
who was pursuing him at a distance would not notice the brief exchange.
Moreover, it would be entirely speculative to conclude that the defendant
discarded his clothes mere moments after speaking to Cordero because he
believed that Cordero had been caught and had identified him.
Finally, Justice Zarella is left with the argument that the jury reasonably
could have found that the defendant believed that he would be identified
and arrested for the attempted bank robbery because, instead of simply
throwing the items of clothing to the ground, he hid them. Again, however,
it would be entirely speculative to conclude that the defendant intentionally
‘‘hid’’ the clothes in a trash can and in the Desantises’ carport, instead of
simply discarding them there. Indeed, the record does not establish that it
was the defendant who placed the jacket in the trash can where it was
found two days after the defendant discarded it. It is entirely possible that
someone in the neighborhood found the discarded jacket and placed it there.
With respect to the evidence of the defendant’s conduct after he discarded
the clothing, we acknowledge that the evidence showing that he did not go
home, but stayed at a motel under an assumed name would support a
conclusion that, by that time, approximately four hours after the attempted
robbery, the defendant’s inability to reach Cordero by telephone had given
rise to a concern that the police had identified him as the perpetrator. The
fact that the defendant was concerned that Cordero may have been stopped
by the police at that time does not support a reasonable inference, however,
that he had such a concern mere minutes after speaking to Cordero.