State v. Myers ( 2017 )

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STATE v. MYERS—CONCURRENCE
LAVINE, J., concurring. I agree with the majority that
it is established law that an appellant must raise and
analyze in his principal brief any matters necessary for
the determination of his appeal and cannot do so for
the first time in his reply brief. I also agree that in this
case, the defendant, Ricardo O. Myers, failed to provide
in his principal brief any analysis of how the court’s
allegedly erroneous ruling was harmful. This rule makes
perfect sense in ninety-nine out of one hundred cases
because it is designed to prevent an appellee from being
ambushed by an appellant who holds back an argument
and then unfairly springs it on an adversary. See State
v. Thompson, 98 Conn. App. 245, 248, 907 A.2d 1257,
cert. denied, 280 Conn. 946, 912 A.2d 482 (2006) (fair
that appellant raise all issues in main brief, otherwise
appellee would not be alerted to them and have opportu-
nity to respond to them in writing).
Rigid adherence to the rule in this case is unneces-
sary. Given the facts, the defendant’s failure to analyze
how he was harmed by the court’s evidentiary ruling
does not matter. The defendant was charged with one
count of murder and two counts of assault in the first
degree. The jury found him guilty, and he was sentenced
to forty-seven years of imprisonment.
Failure to address this issue now is highly inefficient.
The somewhat unusual posture of this case obviates
any concern that a plethora of similar cases will find
their way to this court. It is likely, however, that the
evidentiary issue raised in this appeal may return to
this court after it is litigated in a different action and
in a different forum. For the sake of judicial economy
and in the interests of the parties, I believe this straight-
forward evidentiary issue should be resolved now. I
would reach the merits of the issue presented and would
conclude that the trial court’s ruling excluding the vid-
eotape from evidence should be affirmed.
The defendant’s theory of defense at trial was: ‘‘I
didn’t do it. Someone else did.’’ To support his theory,
the defendant sought to present Latrell Rountree’s vid-
eotaped statement to the jury. If the jury believed
Rountree, it would have exculpated the defendant, and
resulted in a verdict of not guilty. The defendant’s claim
on appeal that he was harmed is obvious. I, therefore,
would review the defendant’s claim that he was harmed
by the court’s sustaining the state’s objection to the
videotaped statement. I believe that courts should,
where possible and fair to all parties, decide cases
rather than avoid or delay their resolution.
Rountree’s videotaped statement was the sole evi-
dence offered by the defendant. Rountree stated that
Gary Pope, not the defendant, was the shooter. The
harmfulness of the court’s decision to exclude this third-
party culpability is evident. The state’s brief on appeal
demonstrates that it was not surprised or ambushed by
the defendant’s failure to argue that he was harmed by
the court’s ruling in his principal brief. The state
devoted six and one-half pages of its brief to its argu-
ment that Rountree’s videotaped statement was not
admissible under the residual exception to the hear-
say rule.
Appellate courts review the exclusion of evidence
offered pursuant to the residual exception to the hear-
say rule of the Connecticut Code of Evidence under an
abuse of discretion standard. See State v. Shehadeh,
52 Conn. App. 46, 50, 725 A.2d 394 (1999) (abuse of
discretion and showing of substantial prejudice or injus-
tice). Clearly, there was no abuse of discretion here.
The court ticked off a list of reasons why it did not
conclude that Rountree’s videotaped statement was
supported by ‘‘equivalent guarantees of trustworthiness
and reliability that are essential to other evidence admit-
ted under traditional exceptions to the hearsay rule,’’
as required by § 8-9 (2) of the Connecticut Code of
Evidence.1 Among them were the fact that Rountree’s
statement was provided without the benefit of an oath;
that Roundtree waited six days to provide any informa-
tion to the police about the death of his friend, the
victim, Tirrell Drew; that Rountree only gave his state-
ment when he was under police custody on unrelated
charges; that Rountree lied about having viewed a pho-
tograph of Pope prior to being shown photographs by
the police; that Rountree was under the influence of
an intoxicant on the night of the crime; that Rountree
gave inconsistent stories about a fight that had allegedly
occurred at the time of the incident; that there was no
clear evidence of the distance between Rountree and
the shooter at the time of the shooting; and that
Rountree was not subject to cross-examination at
any time.
Because I believe that the defendant’s claim of harm
with respect to the court’s evidentiary ruling is unambig-
uously self-evident, because I believe this court should
reach the substance of the issue presented in this appeal
and because I would affirm the trial court’s evidentiary
ruling, I respectfully concur. To the extent that this
conclusion conflicts with the precedents cited by the
majority, I believe the circumstances of this case, and
the need to conserve the resources of the court and
counsel and to resolve this case without further delay,
justify this modest departure.
For the foregoing reasons, I respectfully concur.
1
Section 8-9 of the Connecticut Code of Evidence provides in relevant part:
‘‘A statement that is not admissible under any of the foregoing exceptions
is admissible if the court determines that . . . (2) the statement is supported
by equivalent guarantees of trustworthiness and reliability that are essential
to other evidence admitted under traditional exceptions to the hearsay rule.’’