State v. Jordan ( 2014 )

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STATE v. JORDAN—CONCURRENCE
ESPINOSA, J., concurring in part and concurring in
the judgment. I agree with and join part II of the majority
opinion, which concludes that the actions of the defen-
dant, Victor L. Jordan, Sr., were insufficient to sustain
his conviction of tampering with physical evidence. I
write separately because, although I agree with the
majority’s ultimate conclusion in part I that there was
no violation of the defendant’s due process right to a
fair trial, I disagree with its analysis. Specifically, I agree
that, if we were to assume, without deciding, that there
was impropriety on the part of the prosecutor, any error
was harmless beyond a reasonable doubt. I believe,
however, that we should reach the issue of whether the
Appellate Court properly concluded that the prosecutor
acted improperly.
In this concurring opinion, I first explain that the
majority’s determination not to address the prosecu-
tor’s duty under Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963), and Napue v. Illinois,
360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), is
based on an incorrect reading of the scope of the certi-
fied question. Second, and more importantly, I explain
that the majority’s failure to address the question of
whether the prosecutor acted improperly leaves stand-
ing the Appellate Court’s incorrect application of Napue
to the facts of the present case. And the incorrect legal
analysis of that court is a significant one, which should
be rectified by this court. Specifically, this appeal pre-
sents a somewhat unusual, but not rare, sequence of
events that implicates the doctrines set forth by the
United States Supreme Court in Brady v. Maryland,
supra, 87 (prosecutor’s duty to disclose exculpatory
evidence), Napue v. Illinois, supra, 269–70 (prosecu-
tor’s duty to correct false or misleading testimony), and
Giglio v. United States, 405 U.S. 150, 154–55, 92 S. Ct.
763, 31 L. Ed. 2d 104 (1972) (extending Brady and
Napue doctrines to understandings or agreements wit-
ness has with state in exchange for testimony). That
is, when a prosecutor, at the outset, has disclosed both
to the defendant and the court the nature of any
agreements that have been offered to the state’s wit-
nesses in exchange for their testimony, does the prose-
cutor have a duty to correct, in the presence of the
jury, any subsequent, misleading testimony offered by
those witnesses?
I conclude that because the prosecutor fulfilled his
duty pursuant to Brady when he informed both the
court and the defendant of the nature of the agreements
he made with the state’s witnesses, Herman Cordero
and Jennifer Campbell, in exchange for their testimony
he did not have a subsequent duty pursuant to Napue,
given the particular facts of the present case, to correct
the misleading testimony of those witnesses as to the
agreements. Accordingly, I concur.
I
CERTIFIED QUESTION
The majority suggests that the reason it does not
reach the issue of whether the Appellate Court properly
concluded that the prosecutor acted improperly is
because that issue is beyond the scope of the first certi-
fied question.1 I disagree. The first certified question
was limited to the following issue: ‘‘Did the Appellate
Court properly conclude that the prosecutor’s failure
to correct the misleading testimony of . . . Cordero
and . . . Campbell did not deprive the defendant of
his due process right to a fair trial?’’ State v. Jordan,
305 Conn. 918, 47 A.3d 388 (2012). I first observe that
even if the majority was correct that the issue is beyond
the scope of the certified question, it does not necessar-
ily follow that this court would be unable to consider
this issue.2 This court has discretion to address issues
or claims not within the scope of the certified question
if it is in the interest of judicial economy; State v. Web-
ster, 308 Conn. 43, 60 n.13, 60 A.3d 259 (2013); or if the
issue was briefed by the parties and addressed at oral
argument. Finan v. Finan, 287 Conn. 491, 498, 949 A.2d
468 (2008).3
The issue of whether the Appellate Court properly
concluded that the prosecutor acted improperly by vio-
lating his duty under Brady and Napue, however, falls
within the scope of the certified question, which
requires us to resolve whether the prosecutor’s failure
to correct the misleading testimony deprived the defen-
dant of his due process right to a fair trial. That question
encompasses the entire due process inquiry, including
both impropriety and materiality. Specifically, because
the defendant must prevail on both prongs in order to
establish that the prosecutor’s actions have violated his
right to due process, the certified question necessarily
includes both the issue of whether the prosecutor’s
actions violated Brady and Napue and, if the answer
to that question is in the affirmative, whether the viola-
tion was material. Accordingly, the majority’s reading of
the certified question is unnecessarily narrow. Finally, I
observe that, because the Appellate Court addressed
in its opinion the issue of whether the prosecutor acted
improperly and because both parties have briefed that
issue and discussed it at oral argument, there is no risk
that the parties will be prejudiced by this court reaching
the issue. Therefore, the issue of whether the Appellate
Court properly concluded that the prosecutor acted
improperly is before this court.4
II
APPELLATE COURT’S INCORRECT CONCLUSION
SHOULD NOT BE LEFT STANDING
I also write separately because the majority’s failure
to address this issue leaves standing the incorrect con-
clusion of the Appellate Court that the prosecutor’s
actions were improper. This court has a duty both to
parties and to lower courts to clarify the law and to
correct any errors in interpretation made by the Appel-
late Court. In this concurring opinion, therefore, I
explain that because the prosecutor properly disclosed
the details of his agreements with Cordero and Camp-
bell, as required under Brady, he did not have a duty,
pursuant to Napue, under the facts of the present case,
to correct the subsequent misleading testimony5 given
by these witnesses.
I begin by reviewing the Appellate Court’s discussion
of the defendant’s claim that the prosecutor violated
his due process right to a fair trial by not correcting the
misleading testimony given by Cordero and Campbell in
the presence of the jury. After addressing the threshold
issue of whether the defendant had waived the claim,6
and concluding that he had not done so because he had
‘‘attempted twice to draw out the presence of the plea
agreement from Cordero,’’ the court proceeded to the
merits of the defendant’s claim. State v. Jordan, 135
Conn. App. 635, 664, 42 A.3d 457 (2012). The court
concluded that the prosecutor’s initial disclosure of the
nature of the agreements with Campbell and Cordero
was inadequate in light of their subsequent misleading
testimony; id., 666–67; because ‘‘the jurors could well
have been left with the impression, created by Cordero’s
and Campbell’s testimony, that neither had any incen-
tive to testify favorably for the state. Under these cir-
cumstances . . . the prosecutor had a duty to correct
the record before the jury.’’ Id., 667. Having concluded
that the prosecutor acted improperly, the Appellate
Court then applied the six factors set forth in State v.
Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), to
determine that the improper action did not deprive the
defendant of his due process right to a fair trial.7 The
court based its conclusion on the fact that there was
additional evidence beyond Cordero’s and Campbell’s
testimony that pointed to the defendant as the assailant,
that the prosecutor did not attempt to use the false
testimony, that the jury was aware of the status of
Campbell and Cordero as charged accomplices in the
case, and, additionally, that ‘‘the court instructed the
jury to carefully scrutinize their testimony on the basis
of this status.’’ State v. Jordan, supra, 667–68.
By holding that the prosecutor had a duty to disclose
the nature of his agreements with Cordero and Camp-
bell in the presence of the jury, notwithstanding the
fact that he already had provided the defendant with
the information regarding the true nature of those
agreements, the Appellate Court went beyond the
requirements of both Brady and Napue. Brady sets out
the rule that ‘‘the suppression by the prosecution of
evidence favorable to an accused . . . 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].’’ (Internal quotation marks
omitted.) Adams v. Commissioner of Correction, 309
Conn. 359, 369, 71 A.3d 512 (2013). A subset of the
Brady rule was established in Napue, which places an
obligation on the prosecutor to correct false or mis-
leading witness testimony. Napue v. Illinois, supra, 360
U.S. 269–70. The duty to correct under Napue includes
the duty to correct a witness’ false testimony about any
understanding or agreement that the prosecutor and
the witness have made in exchange for the witness’
agreement to testify. Giglio v. United States, supra, 405
U.S. 154–55.
In order to understand why the prosecutor in the
present case did not have a duty to correct the mis-
leading testimony of Cordero and Campbell, it is helpful
to view the facts of the present case in light of the
overarching purpose behind Brady and Napue, which
is to ensure the fair administration of justice and fair
dealing by the prosecutor. The United States Supreme
Court explained the limits of that purpose: ‘‘The Brady
rule is based on the requirement of due process. Its
purpose is not to displace the adversary system as the
primary means by which truth is uncovered, but to
ensure that a miscarriage of justice does not occur.
Thus, the prosecutor is not required to deliver his entire
file to defense counsel, but only to disclose evidence
favorable to the accused that, if suppressed, would
deprive the defendant of a fair trial . . . .’’ (Footnotes
omitted.) United States v. Bagley, 473 U.S. 667, 675,
105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). The court further
explained in Bagley that ‘‘[b]y requiring the prosecutor
to assist the defense in making its case, the Brady rule
represents a limited departure from a pure adversary
model. The [c]ourt has recognized, however, that the
prosecutor’s role transcends that of an adversary: he
is the representative not of an ordinary party to a contro-
versy, but of a sovereignty . . . whose interest . . . in
a criminal prosecution is not that it shall win a case, but
that justice shall be done.’’ (Internal quotation marks
omitted.) Id., 675 n.6. Additionally, the United States
Supreme Court has made clear that ‘‘[the prosecutor]
may prosecute with earnestness and vigor—indeed, he
should do so. But, while he may strike hard blows, he
is not at liberty to strike foul ones. It is as much his
duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every
legitimate means to bring about a just one.’’ Berger v.
United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed.
1314 (1935).
In the present case, the prosecutor’s actions were
perfectly in accordance with the principles underlying
Brady and Napue. Far from striking ‘‘foul’’ blows, the
prosecutor did everything that due process required.
Specifically, he had disclosed to the court and to the
defendant the nature of his agreements with both Cord-
ero and Campbell before they testified. He did not
attempt to hide the information or to act, in any way,
unfairly or dishonestly in his dealing with the defendant.
The prosecutor told the defendant and the court, on
the record: ‘‘And, just [s]o the record is clear, what I
said to [Cordero’s attorney] and what I said to [defense
counsel] about [Cordero’s] cooperation is that if he
testified we would bring his cooperation to the sentenc-
ing judge . . . when his case is disposed of. And that’s
the extent of the agreement.’’ Prior to Campbell’s testi-
mony, the prosecutor again told the defendant and the
court, on the record: ‘‘[Campbell is] represented by
Attorney Auden Grogins and [I] made the same repre-
sentation to her and her client as I did to . . . Cordero
and his [attorney], that their cooperation, if any, would
be brought to the attention of the sentencing judge at
the time [her] case is disposed of.’’ The prosecutor made
both of these disclosures outside of the presence of the
jury. This fulfilled his obligation under Brady to provide
the defendant with exculpatory information. Brady v.
Maryland, supra, 373 U.S. 87. It was then incumbent
upon the defendant to determine whether to use that
information. That is, once the witnesses gave mis-
leading testimony during direct examination, the defen-
dant had the option of using the Brady material that
the prosecutor had provided to him to impeach the
witnesses by questioning them about any consideration
they were promised in exchange for testifying. As a
practical matter, the prosecutor had no duty to correct
the misleading testimony by informing the defendant
of the true nature of his agreement with the witnesses—
he already had provided the defendant with that infor-
mation. The only remaining question was, once the wit-
nesses gave misleading testimony, whose duty was it
to correct that misleading testimony in the presence of
the jury?
The mistake in the Appellate Court’s reasoning was
that it imposed a duty upon the prosecutor that properly
belonged to defense counsel. That is, after a prosecutor
has discharged his duty under Brady to provide a defen-
dant with exculpatory information, the duty to place
that information in front of the jury is a duty owed to
the defendant by his counsel, not by the prosecutor.
The mere fact that a witness has testified in a misleading
manner, without more; see footnote 6 of this concurring
opinion; does not shift responsibility back to the prose-
cutor. The prosecutor has an obligation to ensure that
the defendant is aware of any false or misleading testi-
mony at a time when the defendant can use the informa-
tion, but the prosecutor need not represent the
defendant’s interest by correcting the testimony in front
of the jury. That duty is one owed by defense counsel
to the defendant, namely, the duty to make strategic
choices about whether to impeach a witness about testi-
mony that counsel knows to be false or misleading.
Thus, the Appellate Court’s imposition of a duty on the
prosecutor to correct misleading testimony in front of
the jury is inconsistent with Brady and Napue, neither
of which imposes upon the prosecutor any duties that
are intended to replace the basic principles of our
adversarial system.
While the facts of the present case may seem like a
classic Napue scenario because there was misleading
testimony that the prosecutor did not correct—and that
is certainly what the defendant argues before this
court—it is not. In the present case, the prosecutor told
the defendant and the court the nature of his
agreements with Cordero and Campbell prior to their
testimony. This disclosure meant that the duty of the
prosecutor to correct false or misleading testimony as
set forth in Napue was never triggered. A prosecutor
may be found to have violated Napue following initial
disclosure only when the prosecutor’s subsequent
actions could mislead the jury. Examples of this include
the prosecutor relying on or using the false or mis-
leading testimony, the prosecutor interfering with the
defendant’s attempt to use the disclosed information,
the prosecutor bolstering the credibility of the witness,
or the prosecutor asking the witness questions intended
to mislead the jury.8 See footnote 6 of this concurring
opinion. None of those circumstances existed in the
present case. The Appellate Court, therefore, improp-
erly concluded that the prosecutor acted improperly.
Accordingly, I concur in the judgment.
1
We granted the defendant’s petition for certification to appeal, limited
to two issues. See footnote 2 of the majority opinion.
2
I concede that if we read the certified question narrowly, it could be
interpreted to ask whether the Appellate Court properly applied the due
process analysis in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653
(1987), to determine whether the defendant has proved that the prosecutor’s
violation under Napue was material. Even under that narrow reading, how-
ever, it is within the court’s discretion to rectify the Appellate Court’s incor-
rect application of Napue to the question of whether the prosecutor
committed an impropriety.
3
This court’s broad discretion to address issues within the scope of the
certified question is illustrated by the fact that even if a claim is not consid-
ered by the Appellate Court or briefed before this court, this court may
choose to address it, if the claim falls within the scope of the certified
question. McManus v. Commissioner of Environmental Protection, 229
Conn. 654, 661 n.6, 642 A.2d 1199 (1994).
4
I note that the state conceded at oral argument that it was raising the
issue of waiver as an alternative ground for affirmance. I read that concession
to imply that the state conceded also that it raises the impropriety issue as
an alternative ground. This concession does not, however, preclude this
court from reaching the issue of whether an impropriety occurred, nor does
it release us from our obligation to do so. As I explain herein, we have a
duty to set forth the correct application of Brady and Napue to the facts
of the present case because otherwise the Appellate Court’s incorrect appli-
cation will govern.
5
As the majority observes, the question of whether the testimony was
false or misleading is not at issue in this appeal, as the state concedes that
it was undisputed that the testimony was ‘‘potentially misleading.’’
6
The federal courts have explored at length the circumstances under
which a defendant will be deemed to have waived a claim that a prosecutor
improperly failed to correct false or misleading testimony. The general
rule is that ‘‘absent unusual circumstances, the right of the defendant to
disclosure by the prosecutor is deemed waived if defense counsel with
actual knowledge of the plea agreement or sentencing status information
chooses not to present such information to the jury.’’ (Footnote omitted.)
United States v. Iverson, 648 F.2d 737, 739 (D.C. Cir. 1981). But see Belmontes
v. Brown, 414 F.3d 1094, 1115–16 (9th Cir. 2005), rev’d on other grounds
sub nom. Ayers v. Belmontes, 549 U.S. 7, 127 S. Ct. 469, 166 L. Ed. 2d
334 (2006).
‘‘When a criminal defendant, during his trial, has reason to believe that
perjured testimony was employed by the prosecution, he must impeach the
testimony at the trial, and cannot have it both ways. He cannot withhold
the evidence, gambling on an acquittal without it, and then later, after the
gamble fails, present such withheld evidence in a subsequent proceeding
. . . .’’ (Internal quotation marks omitted.) Evans v. United States, 408 F.2d
369, 370 (7th Cir. 1969). The presumption is that the defendant chose not to
challenge the false testimony for tactical reasons. United States v. Mangual-
Garcia, 505 F.3d 1, 10–11 (1st Cir. 2007), cert. denied sub nom. Villanueva-
Rivera v. United States, 553 U.S. 1019, 128 S. Ct. 2081, 170 L. Ed. 2d 819
(2008). Accordingly, the defendant will be deemed to have waived the right
to argue on appeal that the prosecutor violated his right to due process by
failing to correct the false or misleading testimony. Id.
There are several factual circumstances that could lead a court to conclude
that a defendant did not waive the claim, despite the defendant’s failure to
use the information provided by the prosecutor regarding the nature of
the agreements. For instance, ‘‘should defense counsel be precluded by
circumstances essentially beyond his control (e.g., inaccessibility at the time
of trial of the information or refusal of the trial court to permit inquiry into
the matter) from raising or pursuing the issue, the Giglio-Napue rule strictly
applies and due process mandates a new trial.’’ United States v. Iverson,
supra, 648 F.2d 739. These circumstances also include: the prosecutor relying
on or using the false testimony; DeMarco v. United States, 928 F.2d 1074,
1076–77 (11th Cir. 1991); the prosecutor interfering with the defendant’s
attempts to impeach the witness by objecting to the questioning; Jenkins
v. Artuz, 294 F.3d 284, 294 (2d Cir. 2002); the prosecutor bolstering the
credibility of the witness, or asking questions of the witness that intentionally
misleads the jury; id.; and defense counsel choosing not to raise the issue
due to his own conflict of interest. Ross v. Heyne, 638 F.2d 979, 986 (7th
Cir. 1980) (defense counsel knew testimony denying plea agreement was
false because his law partner was witness’ defense attorney and defense
counsel, therefore, had conflict of interest). These circumstances are espe-
cially likely to preserve the due process violation claim when they are
combined with the defendant’s futile attempts to elicit the correct informa-
tion. United States v. LaPage, 231 F.3d 488, 490, 492 (9th Cir. 2000), amended
by 271 F.3d 909 (9th Cir. 2001); United States v. Sanfilippo, 564 F.2d 176,
177 (5th Cir. 1977).
Because none of the above circumstances existed in the present case, I
conclude that the defendant waived the right to challenge the prosecutor’s
failure to correct the misleading testimony. I nonetheless reach the merits
of the issue because, in light of the Appellate Court’s incorrect analysis
under Brady and Napue, it is necessary to explain the correct application
of those decisions to the facts of the present case.
I emphasize, however, that the present case is a clear example of waiver.
On cross-examination, the defendant asked Cordero only two vague ques-
tions about whether he expected to receive any benefit from the government
for his testimony. When he responded that he did not, the defendant discon-
tinued his questioning about this issue. The defendant did not ask Campbell
any questions about whether she expected to receive any benefit from her
testimony. The defendant had full knowledge of the agreements that the
prosecutor had with both of these witnesses, but chose not to raise the
issue of their misleading testimony at trial. Additionally, there were no
subsequent actions by the prosecutor or extraneous factors that might save
the claim. The prosecutor did not rely on or use the misleading testimony,
the prosecutor did not attempt to interfere with the defendant’s use of the
information about the agreements with Cordero and Campbell, and there
is no evidence that defense counsel had a conflict of interest that prevented
him from raising the issue. The presumption, then, in the present case, is
that the defendant chose not to raise the issue of Cordero’s and Campbell’s
misleading testimony at trial for tactical reasons.
7
I agree with the majority and the parties that the factors enumerated
in Williams are not relevant to the analysis of the defendant’s claim of
prosecutorial impropriety. Accordingly, I also agree that ‘‘if there is a viola-
tion of the standard set forth in Napue v. Illinois, [supra, 360 U.S. 269–71],
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.’’ See foot-
note 4 of the majority opinion.
8
Although the defendant does not appear to argue that the prosecutor
relied on the misleading testimony during redirect examination, and the
defendant does not claim that the prosecutor directly relied on the mis-
leading testimony, the defendant claims that the prosecutor’s remarks during
closing argument capitalized on that testimony. Specifically, the defendant
claims that when a state’s witness has offered misleading testimony, a
general bolstering of the witness’ credibility by the prosecutor may result
in a due process violation. Even if I were to agree with the defendant’s
proposition, that would not help him in the present case.
As the Appellate Court noted in its opinion: ‘‘Although the state com-
mented, generally, about the credibility of both witnesses during its closing
argument, the state did not suggest, at any point that either witness should
be believed on the ground that they had testified without the benefit of any
agreement with the state regarding their own pending cases. And, the jury
was made aware of both Cordero’s and Campbell’s status as charged accom-
plices through their direct testimony at the behest of the state. Additionally,
the court instructed the jury to carefully scrutinize their testimony on the
basis of this status.’’ State v. Jordan, supra, 135 Conn. App. 667–68. Viewing
the prosecutor’s comments in closing argument as a whole reveals that to
the extent that he claimed that the witnesses were credible, he did so on
the basis that their testimony was consistent with other testimony and
evidence presented at trial.
This is particularly highlighted by the fact that he argued that Campbell’s
testimony was credible, whereas he did not make the same claim about
Cordero’s testimony. For instance, although the prosecutor argued that
Cordero’s testimony placed the defendant at the scene of the crime, the
prosecutor also somewhat discredited the testimony of Cordero by saying
three times that it did not make much sense. By contrast, the prosecutor
said that Campbell’s credibility was bolstered because her descriptions of
events were consistent with how other witnesses had testified. With respect
to her descriptions of events, he summarized: ‘‘If you can rely on the details
she gives about those things you can rely on the details she gives about
everything.’’ At the same time, even though he argued that Campbell was
credible, he also encouraged the jury to look critically at her testimony.
Accordingly, rather than generally bolstering the credibility of the witnesses,
the prosecutor asked the jury to draw inferences based on the evidence
presented at trial.