State v. Simmons , 188 Conn. App. 813 ( 2019 )

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STATE v. SIMMONS—CONCURRENCE
BEAR, J., concurring in part and concurring in the
judgment. The defendant, Kevan Simmons, appeals
from the judgment of conviction, rendered following a
jury trial, of two counts of assault in the first degree
in violation of General Statutes § 53a-59 (a) (5), and
one count each of criminal possession of a pistol or
revolver in violation of General Statutes § 53a-217c (a)
(1) and carrying a pistol without a permit in violation
of General Statutes § 29-35 (a). On appeal, the defendant
claims that (1) the prosecutor violated his constitutional
rights to due process and a fair trial by committing
improprieties during closing argument; (2) his due pro-
cess rights were violated when the state failed to dis-
close a police internal affairs report detailing the
misconduct of a police detective who was a primary
witness for the state; and (3) the state improperly
entered into an agreement to immunize testimony from
George Harris, a victim of the shooting and a key wit-
ness, including any lies and falsehoods that would con-
stitute the crime of perjury, and that agreement
constituted plain error that was either structural error
or otherwise not subject to a harmless error analysis;
and (4) the improper agreement to immunize Harris’
testimony, which the state anticipated would include
Harris’ perjury in denying knowledge, inter alia, about
who shot him, warrants the exercise of this court’s
supervisory authority to reverse the defendant’s convic-
tion and award him a new trial.1
I agree with the majority that the state’s illegal and
improper agreement with Harris to immunize all of his
anticipated testimony, including any testimony that the
state anticipated would constitute the crime of perjury,
and the trial court’s knowing acceptance and implemen-
tation of that illegal and improper agreement, warrants
a reversal of the defendant’s conviction and a remand
of this case for a new trial. I write separately, however,
because I do not agree that the majority’s invocation
of this court’s supervisory authority in its thorough,
thoughtful, and well written opinion is necessary in this
case. I would, instead, reverse the defendant’s convic-
tion on the ground that the trial court’s acceptance and
implementation of the agreement for the illegal and
improper immunization of Harris’ anticipated testi-
mony, including any testimony that would constitute
the crime of perjury, constituted plain error that was
structural error in the context of the defendant’s crimi-
nal trial.2
Before addressing the defendant’s claim of plain
error, I discuss the other claims raised by the defendant
in support of his argument that the conviction should
be reversed to determine whether reversal is warranted
on a basis separate from plain error review.
I accept the facts as set forth in the majority opinion.
Additional facts are set forth as relevant to the claims
that are addressed in this concurring opinion.
I
PROSECUTORIAL IMPROPRIETY
The defendant first claims that the prosecutor vio-
lated his rights to due process and a fair trial when he
committed several improprieties during closing argu-
ment. Specifically, the defendant claims that the prose-
cutor improperly (1) denigrated defense counsel; (2)
asked the jury to use impeachment evidence substan-
tively; (3) expressed his opinion about the credibility
of two witnesses; (4) appealed to the jurors’ emotions;
and (5) injected extraneous matters into the trial. The
state argues that the prosecutor did not commit any
improprieties during closing argument and that, even
if he did, they did not deprive the defendant of his rights
to due process and a fair trial.
Although the defendant did not object to the pur-
ported improprieties he now challenges on appeal,
‘‘under settled law, a defendant who fails to preserve
claims of prosecutorial [impropriety] need not seek to
prevail under the specific requirements of State v. Gold-
ing, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), and,
similarly, it is unnecessary for a reviewing court to
apply the four-pronged Golding test.’’ (Internal quota-
tion marks omitted.) State v. Payne, 303 Conn. 538, 560,
34 A.3d 370 (2012).
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to
a fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry.’’ (Internal
quotation marks omitted.) State v. Campbell, 328 Conn.
444, 541–42, 180 A.3d 882 (2018).
‘‘As we previously have recognized, prosecutorial
[impropriety] of a constitutional magnitude can occur
in the course of closing arguments. . . . When making
closing arguments to the jury, [however] [c]ounsel must
be allowed a generous latitude in argument, as the limits
of legitimate argument and fair comment cannot be
determined precisely by rule and line, and something
must be allowed for the zeal of counsel in the heat of
argument. . . . Thus, as the state’s advocate, a prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based upon the facts in evi-
dence and the reasonable inferences to be drawn there-
heightened duty to avoid argument that strays from the
evidence or diverts the jury’s attention from the facts
of the case. [The prosecutor] is not only an officer of
the court, like every attorney, but is also a high public
officer, representing the people of the [s]tate, who seek
impartial justice for the guilty as much as for the inno-
cent. . . . While the privilege of counsel in addressing
the jury should not be too closely narrowed or unduly
hampered, it must never be used as a license to state,
or to comment upon, or to suggest an inference from,
facts not in evidence, or to present matters which the
jury [has] no right to consider.’’ (Internal quotation
marks omitted.) State v. Reddick, 174 Conn. App. 536,
559, 166 A.3d 754, cert. denied, 327 Conn. 921, 171 A.3d
58 (2017), cert. denied, U.S. , 138 S. Ct. 1027,
200 L. Ed. 2d 285 (2018).
With the foregoing in mind, I address each of the
defendant’s claims of prosecutorial impropriety in turn
to determine whether any improprieties occurred.
A
The defendant first claims that the prosecutor
improperly denigrated defense counsel during his clos-
ing argument. Specifically, he claims that the prosecu-
tor’s remarks improperly implied that defense counsel
was employing standard tactics used in all trials. The
state counters that the prosecutor’s comments were
proper because they challenged the theory of the
defense.
‘‘It has been held improper for the prosecutor to
impugn the role of defense counsel. . . . In particular,
[i]t is improper for a prosecutor to tell a jury, explicitly
or implicitly, that defense counsel is employing stan-
dard tactics used in all trials, because such an argument
relies on facts not in evidence and has no bearing on
the issue before the jury, namely, the guilt or innocence
of the defendant. . . . There is a distinction [however]
between argument that disparages the integrity or role
of defense counsel and argument that disparages a the-
ory of defense. . . .
‘‘Closing arguments of counsel . . . are seldom care-
fully constructed in toto before the event; improvisation
frequently results in syntax left imperfect and meaning
less than crystal clear. . . . [S]ome leeway must be
afforded to the advocates in offering arguments to the
jury in final argument. . . . [C]ounsel must be allowed
a generous latitude in argument . . . .’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Fasa-
nelli, 163 Conn. App. 170, 180, 133 A.3d 921 (2016).
In Fasanelli, the defendant argued ‘‘that the prosecu-
tor improperly denigrated defense counsel by implying
that defense counsel was being deceitful and using stan-
dard defense tactics’’ during his closing argument Id.,
181. This court concluded, however, that the challenged
comments, when read in context, ‘‘did not attack
defense counsel; rather, each of the challenged com-
ments attacked the theory of the defendant . . . .’’ Id.,
182. Because the prosecutor’s comments were based
on evidence in the record and attacked only the theory
of the defense, the court concluded that they were
proper. Id.
In the present case, the prosecutor stated the follow-
ing during his initial closing argument: ‘‘Now, [defense
counsel’s] going to get up here, I assume, [and say] that
the Hartford police are lying, [Detective] Reggie Early
lied, you know, that was a deceitful tactic that he used,
you know, that’s—if he lies that way, why should you
believe any of his testimony? Whatever. Completely
predictable. When your back [is] up against the wall,
that’s what the defense is going to be. Always blame
the police, all right.’’
Similarly to Fasanelli, when read in context these
comments are clearly based on evidence in the record
and attack the apparent theory of the defense, as shown
during defense counsel’s cross-examination. The prose-
cutor’s comments were directed to defense counsel’s
attempts during trial to attack the credibility of the
Hartford police, particularly, Detective Early’s testi-
mony regarding the manner in which he secured the
defendant’s confession. The defendant’s apparent the-
ory was that, because Early had secured the defendant’s
confession by using a fabricated confession from Har-
ris, he must not have been truthful in the remainder
of his testimony. In light of this defense theory, the
prosecutor’s comments in attacking it were not
improper.
B
The defendant next claims that the prosecutor
improperly made substantive use of Harris’ tape-
recorded phone conversation with his mother that was
recorded by the Department of Correction in accor-
dance with its usual policy. Some of Harris’ statements
were admitted by the court as prior inconsistent state-
ments to impeach his trial testimony. Subsequently,
during the prosecutor’s initial closing argument, the
prosecutor referenced the tape-recorded conversation,
which had not been admitted as a full exhibit for all
purposes, and then repeated to the jury what Harris
had said to his mother during the phone call for the truth
of the statements. In particular, the prosecutor stated:
‘‘One point in [Harris’] testimony that he’s talking to
his mom: First, I think I am being charged with every-
thing [the defendant] is. Cop told me the warrant is for
not cooperating, and I’m like, yeah, I’ll take that. Makes
sense. If you woulda seen the video they showed me,
I coulda got charged with the same thing [the defen-
dant] got charged with. They showed me the video.
. . . They showed everything. When I sat down, when
I couldn’t move, they showed [the defendant] walked
up to me. Then they showed him run off. Then they
show this girl run out, tie my leg up. They showed the
whole thing. . . .
‘‘He testified that [he and the defendant were]
arrested at the same time, that they were at [the] Hart-
ford lockup at the police department, and they were
placed in cells next to each other. They smacked [the
defendant] with the charges right there. They had us
together. They really put us together and this ‘n’ shot
me. . . . And then [Harris] laughs. I’m in a holding cell.
I don’t know how [the defendant] seen me. I’m asleep.
[The defendant] seen me. They put [the defendant] in
a cell like two cells down. It’s like, one, two in the
morning. All I hear is: George. George. Come on, man.
I know you hear me. I know you hear me. I just seen
you. I just seen you. I’m like, this ‘n’ really trying to
talk to me? I’m in jail ‘cause of him right now ‘cause
he shot me in the leg.
‘‘That’s testimony, ladies and gentlemen. That’s not
given to police or the state’s attorney’s office.’’ (Empha-
sis added.)
Our Supreme Court has adopted a rule ‘‘allowing the
substantive use of prior written inconsistent state-
ments, signed by the declarant, who has personal
knowledge of the facts stated, when the declarant testi-
fies at trial and is subject to cross examination.’’ State
v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied,
479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). In
Whelan, the court also held that ‘‘[p]rior oral statements
of a witness, easily manufactured and often difficult
to rebut, should not be used to prove an element of a
crime essential to guilt.’’ (Emphasis added.) Id., 754.
In the years following Whelan, our Supreme Court has
recognized that ‘‘the general rationale of Whelan con-
cerning written statements also applies to tape-
recorded statements . . . [and that] the requirement
that such statements be signed is unnecessary because
the recording of the witness’ voice imparts the same
measure of reliability as a signature.’’ (Citation omit-
ted.) State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386
(1993). Additionally, this court has stated that a witness’
identification of his or her own voice on tape is afforded
‘‘the same measure of reliability as a signature.’’ (Inter-
nal quotation marks omitted.) State v. Perry, 48 Conn.
App. 193, 199–200, 709 A.2d 564, cert. denied, 244 Conn.
931, 711 A.2d 729 (1998); see also E. Prescott, Tait’s
Handbook of Connecticut Evidence (6th Ed. 2019)
§ 8.27.3 (b), p. 606. The Whelan rule and its subsequent
developments and clarifications have been incorpo-
rated into § 8-5 (1) of the Connecticut Code of Evidence,
which states that prior inconsistent statements are not
excluded by the hearsay rule, ‘‘provided (A) the state-
ment is in writing or otherwise recorded by audiotape,
videotape or some other equally reliable medium, (B)
the writing or recording is duly authenticated as that
of the witness, and (C) the witness has personal knowl-
edge of the contents of the statement.’’ See also Conn.
Code Evid. § 8-5 (1), commentary.
In Woodson, the state had played a tape recording of
a witness’ statement to police to show its inconsistency
with the witness’ in-court testimony, in which he had
disavowed any knowledge of the tape-recorded state-
ments. See State v. Woodson, supra, 227 Conn. 19. Sub-
sequently, the trial court admitted the taped statement
into evidence and had portions of it played for the jury.
Id. Our Supreme Court ultimately concluded that the
trial court properly admitted the prior inconsistent
statement for substantive purposes. Id., 23. In the pre-
sent case, although the state similarly played the tape-
recorded statement made by Harris to his mother to
show its inconsistency with his in-court testimony that
he did not remember who shot him, the state did not
attempt to admit the tape recording into evidence as a
full exhibit. Rather, the state made clear that the tape-
recording was not being offered for its truth, but only
to show its inconsistency with Harris’ testimony. More-
over, the court made clear in its instructions to the jury,
after the tape recording was played, that the jurors
should consider it only as it related to his credibility
and that it was not substantive evidence.
As such, the prosecutor’s two references in closing
argument to Harris’ statements in the tape recording
for their truth were improper because the statements
had not been previously admitted as substantive evi-
dence. The prosecutor, therefore, improperly utilized
Harris’ recorded statements in his closing argument.
C
The defendant next claims that the prosecutor
improperly expressed his opinion about the credibility
of two of the state’s witnesses, Harris and Joaquin Ced-
eno, both of whom were victims of the shooting.
‘‘[A] prosecutor may not express his [or her] own
opinion, directly or indirectly, as to the credibility of
the witnesses. . . . Such expressions of personal opin-
ion are a form of unsworn and unchecked testimony,
and are particularly difficult for the jury to ignore
because of the prosecutor’s special position. . . .
However, [i]t is not improper for the prosecutor to
comment upon the evidence presented at trial and to
argue the inferences that the jurors might draw there-
from . . . . We must give the jury the credit of being
able to differentiate between argument on the evidence
and attempts to persuade them to draw inferences in
the state’s favor, on one hand, and improper unsworn
testimony, with the suggestion of secret knowledge, on
the other hand. . . . [W]e must look at the statement,
including the use of the pronoun I, as a whole, in
determining whether it was an expression of the state’s
attorney’s personal opinion regarding the credibility of
witnesses.’’ (Citation omitted; internal quotation marks
omitted.) State v. Fasanelli, supra, 163 Conn. App.
185–86.
During his initial closing argument, the prosecutor
made the following comments: ‘‘You can listen back to
George Harris’ testimony. It was painful. He would lis-
ten to part of the tape. Is that you? Yes it is. And did
you say that? And right after listening to the tape, he
would say no, okay. He was an obstructionist.’’ In addi-
tion, during his initial closing argument, the prosecutor
stated: ‘‘But again, the problem is, [the police] are deal-
ing with obstructionists like Joaquin Cedeno and
George Harris. Complete obstructionists.’’ During his
rebuttal closing argument, the prosecutor stated: ‘‘I
have to comment on Mr. Cedeno and Mr. Harris. The
only thing that they’re up here for, what I put them on
for—because they are obstructionists—just to let you
know that they got shot.’’ Finally, during rebuttal the
prosecutor stated: ‘‘If Harris and Cedeno want to be
obstructionists to our criminal justice system, let it be.
So be it.’’
The prosecutor’s comments were not improper. The
comments were based on Harris’ and Cedeno’s testi-
mony adduced at trial and reflect an effort on the part of
the prosecutor to invite the jury to draw the reasonable
inference that their testimony regarding the incident
lacked credibility. See State v. Richard W., 115 Conn.
App. 124, 135–36, 971 A.2d 810 (‘‘[i]t is without question
that a prosecutor may fairly comment on evidence and
the reasonable inferences to be drawn therefrom that
lead the jury to a conclusion as to the credibility of
witnesses’’ [internal quotation marks omitted]), cert.
denied, 293 Conn. 917, 979 A.2d 493 (2009). Specifically,
because the prosecutor had established during the trial
that Harris and Cedeno were friends and that the defen-
dant and Harris were friends, the jury could have drawn
a reasonable inference from Harris’ impeachment by
his prior inconsistent statements to his mother that he
was lying to obstruct the prosecution of the defendant
and to protect himself, Cedeno, and the defendant. The
prosecutor’s comments that Harris and Cedeno were
obstructionists, therefore, were not based solely on the
prosecutor’s personal opinion, but on the plausible
motives that they may have had to protect themselves
and the defendant. See State v. Stevenson, 269 Conn.
563, 584–85, 849 A.2d 626 (2004); id., 585 (‘‘[i]t is not
improper for a prosecutor to remark on the motives
that a witness may have to lie’’ [internal quotation marks
omitted]); see also State v. Thompson, 266 Conn. 440,
466, 832 A.2d 626 (2003) (same). The prosecutor, there-
fore, did not improperly express his personal opinion
regarding the credibility of Harris and Cedeno.
D
The defendant next claims that the prosecutor
improperly (1) appealed to the jurors’ emotions and (2)
injected extraneous matters into the trial.
‘‘It is well established that [a] prosecutor may not
appeal to the emotions, passions and prejudices of the
jurors. . . . [S]uch appeals should be avoided because
they have the effect of diverting the [jurors’] attention
from their duty to decide the case on the evidence. . . .
When the prosecutor appeals to emotions, he invites
the jury to decide the case, not according to a rational
appraisal of the evidence, but on the basis of powerful
and irrelevant factors which are likely to skew that
appraisal. . . . [I]n deciding cases [however] . . .
[j]urors are not expected to lay aside matters of com-
mon knowledge or their own observations and experi-
ences, but rather, to apply them to the facts as presented
to arrive at an intelligent and correct conclusion. . . .
Therefore, it is entirely proper for counsel to appeal to
[the jurors’] common sense in closing remarks.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Barry A., 145 Conn. App. 582, 601–602, 76 A.3d 211,
cert. denied, 310 Conn. 936, 79 A.3d 889 (2013). ‘‘An
improper appeal to the jurors’ emotions can take the
form of a personal attack on the defendant’s character
. . . or a plea for sympathy for the victim or [his or]
her family.’’ (Internal quotation marks omitted.) State
v. Santiago, 143 Conn. App. 26, 34, 66 A.3d 520 (2013).
In addition, ‘‘[a] prosecutor, in fulfilling his duties,
must confine himself to the evidence in the record. . . .
[T]he privilege of counsel in addressing the jury . . .
must never be used as a license to state, or to comment
upon, or even to suggest an inference from, facts not
in evidence, or to present matters which the jury [has]
no right to consider.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Barry A., supra, 145 Conn.
App. 605.
In the present case, the defendant takes issue with
the following statements made by the prosecutor during
his rebuttal closing argument:
‘‘If Harris and Cedeno want to be obstructionists to
our criminal justice system, let it be. So be it. But the
state is not going to sit back and let people like Cedeno
and Harris dictate that if they don’t want to come into
the court, we’re not going to prosecute. They don’t
decide the criminal justice system, okay. We’re not
going to sit back just because I don’t care and I’m not
saying who did it. The state’s not going to sit back and
say, okay, that’s fine, move on. The state’s going to
press on by other means.
‘‘Does the state have an interest in the case? You bet
we do. Two people were critically injured, shot by this
defendant who illegally possessed a firearm, who inten-
tionally and with extreme indifference to human life
fired it in a residential neighborhood. A community,
regardless of a person’s ethnic or economic back-
ground, has a right, a privilege, to not be subjected to
this violent, criminal conduct.’’
The defendant argues that the statements improperly
urged the jurors to find him guilty to ensure that Harris
and Cedeno would not get away with manipulating the
criminal justice system through their ‘‘deliberate
obstructionism,’’ and to protect the ethnically diverse
and economically disadvantaged community in which
they lived. As previously set forth in part I C of this
concurring opinion, the prosecutor’s comments refer-
ring to Harris and Cedeno as obstructionists were not
improper because they were appropriately based on
evidence adduced during trial. Moreover, the prosecu-
tor’s comments referencing the community were not
directed at urging the jury to find the defendant guilty
because of the location of the incident, but rather, urged
the jury to remember that all communities have a gen-
eral right to be free from the violence that occurred in
this case. The prosecutor did not state that there was
a greater reason to convict the defendant because of
the particular location of the incident, nor did he urge
the jury to have sympathy for the victims because of
who they were or where they were from. Compare State
v. Payne, 260 Conn. 446, 463, 797 A.2d 1088 (2002)
(finding prosecutor’s statement improper where he indi-
cated that only guilty verdict would protect legal sys-
tem), and State v. Santiago, supra, 143 Conn. App. 41–42
(prosecutor improperly appealed to emotions of jurors
where he urged them to decide case on basis of sympa-
thy for victim and victim’s family), with State v. Long,
293 Conn. 31, 60, 975 A.2d 660 (2009) (prosecutor’s
remark not improper where it neither disparaged defen-
dant nor painted victim as particularly vulnerable or
deserving of sympathy, but instead was based on evi-
dence presented at trial). The prosecutor’s statements,
therefore, neither appealed to the jurors’ emotions nor
injected extraneous matters into the trial.
E
Because the prosecutor committed an impropriety by
making substantive use of Harris’ prior oral inconsistent
statements during his closing argument, the question
of whether that established impropriety ‘‘so infected
the trial with unfairness as to make the resulting convic-
tion a denial of due process’’ must be examined. (Inter-
nal quotation marks omitted.) State v. Williams, 204
Conn. 523, 539, 529 A.2d 653 (1987).
‘‘In determining whether prosecutorial [impropriety]
was so serious as to amount to a denial of due process,
this court, in conformity with courts in other jurisdic-
tions, has focused on several factors. Among them are
the extent to which the [impropriety] was invited by
defense conduct or argument . . . the severity of the
[impropriety] . . . the frequency of the [impropriety]
. . . the centrality of the [impropriety] to the critical
issues in the case . . . the strength of the curative mea-
sures adopted . . . and the strength of the state’s
case.’’ (Citations omitted.) Id., 540. ‘‘[T]he burden is on
the defendant to show, not only that the remarks were
improper, but also that, considered in light of the whole
trial, the improprieties were so egregious that they
amounted to a denial of due process.’’ State v. Payne,
supra, 303 Conn. 563.
As to whether the prosecutor’s improper references
to Harris’ prior inconsistent statements were invited by
defense counsel, the record reflects that the references
were made during the prosecution’s initial closing argu-
ment and not in response to statements that defense
counsel made in his closing argument. Thus, these com-
ments could not have been invited by the defendant.
See State v. Ceballos, 266 Conn. 364, 409–10, 832 A.2d
14 (2003) (‘‘[T]he state’s attorney’s improper comments
during summation, were not invited by the arguments
of defense counsel. . . . As the defendant correctly
points out, the state’s attorney made the challenged
. . . comments during his initial summation, and not
during the state’s rebuttal to the defendant’s closing
argument.’’ [Citation omitted; emphasis in original.]).
As such, this factor favors the defendant.
Additionally, the factor regarding the centrality of the
impropriety to the critical issues in the case also favors
the defendant. The prosecutor’s assertion during his
closing argument that Harris’ prior inconsistent state-
ment placed the defendant at the scene of the shooting
went to the defendant’s identification as the shooter,
which was a crucial issue in this case.
With respect to the frequency of the impropriety,
the prosecutor’s substantive references to Harris’ prior
inconsistent statements were not frequent. The prose-
cutor’s references regarding the identification of the
defendant in Harris’ prior inconsistent statements
occurred only during the prosecutor’s initial summa-
tion. See State v. Ross, 151 Conn. App. 687, 701, 95 A.3d
1208 (‘‘the claimed improprieties were not pervasive
throughout the trial, but were confined to, and consti-
tuted only a small portion of, closing and rebuttal argu-
ment, a part of the trial where we typically allow some
latitude’’ [internal quotation marks omitted]), cert.
denied, 314 Conn. 926, 101 A.3d 271, 272 (2014). Accord-
ingly, the frequency factor favors the state.
As to the sufficiency of curative measures taken by
the court, the court provided jury instructions indicat-
ing that the prosecutor was not permitted to give an
opinion as to the defendant’s guilt, that it was the role
of the jury to find the facts, and that witness credibility
was an issue solely for the jury. Additionally, the court
instructed the jury during Harris’ direct examination
that it ‘‘should consider that out-of-court evidence only
as it relates to [the witness’] credibility’’ and that ‘‘[i]t’s
not substantive evidence.’’ The court later repeated
these instructions, directing the jury that it ‘‘should
consider this evidence only as it relates to the credibility
of the witness’ testimony, not as substantive evidence.’’
Furthermore, there is no suggestion in the present case
that the jury failed to follow the court’s instructions.
‘‘In the absence of a showing that the jury failed or
declined to follow the court’s instructions, we presume
that it heeded them.’’ (Internal quotation marks omit-
ted.) State v. Thompson, supra, 266 Conn. 485.
The defendant argues that the court’s ‘‘general
instructions were not sufficient to cure the prejudicial
impact of the improper arguments.’’ Even if the court’s
instructions were found to be insufficient, however,
‘‘the defendant, by failing to bring [specific curative
instructions] to the attention of the trial court, bears
much of the responsibility for the fact that these claimed
improprieties went uncured.’’ (Internal quotation marks
omitted.) State v. Thompson, supra, 266 Conn. 483. As
such, the defendant’s failure to object to the prosecu-
tor’s reference to Harris’ prior inconsistent statement
creates a presumption that the defendant did not view
the impropriety as prejudicial enough to affect his right
to a fair trial. See id., 479–80 (‘‘[W]e consider it highly
significant that defense counsel failed to object to any
of the improper remarks, request curative instructions,
or move for a mistrial. Defense counsel, therefore, pre-
sumably [did] not view the alleged impropriety as preju-
dicial enough to jeopardize seriously the defendant’s
right to a fair trial. . . . Given the defendant’s failure to
object, only instances of grossly egregious misconduct
will be severe enough to mandate reversal.’’ [Citation
omitted; emphasis added; internal quotation marks
omitted.]).
Although the defendant concedes that he failed to
object to the prosecutor’s allegedly improper state-
ments when or after they were made, he argues that
the resulting impropriety was so severe as to deprive
him of a fair trial. Because the prosecutor’s substantive
references to Harris’ prior inconsistent statements were
not frequent, and the defendant failed to object to them,
the prosecutor’s substantive references to Harris’ prior
inconsistent statements were not grossly egregious
enough to warrant reversal. See id., 480 (‘‘[g]iven the
defendant’s failure to object, only instances of grossly
egregious misconduct will be severe enough to mandate
reversal’’); see also State v. Ross, supra, 151 Conn. App.
700 (defendant not entitled to prevail if ‘‘the claimed
[impropriety] was not blatantly egregious and merely
consisted of isolated and brief episodes that did not
reveal a pattern of conduct repeated throughout the
trial’’ [emphasis added; internal quotation marks
omitted]).
As to the strength of the state’s case, the prosecutor
conceded in his argument to the jury that the video of
the shooting, which was shown to the jury and had
been obtained from nearby security cameras, was not
enough for the jury to return a verdict of guilty, but
pointed to other ways the state could corroborate the
defendant’s identification, such as ‘‘clothes, Officer
[Robert] Fogg [of the Hartford Police Department], the
timing coincidence, George Harris, the video and the
reasonable inferences you can draw from it, and Detec-
tive Reggie Early.’’ Specifically, the record reveals that
Officer Fogg’s testimony placed the defendant at the
scene ten minutes after the shooting, and the video
footage showed the figure who committed the shooting
in clothes similar to what the defendant was wearing
when he arrived on the scene. Furthermore, the prose-
cutor had properly impeached Harris’ credibility by pre-
senting his prior inconsistent statements through the
tape-recorded phone conversation he had engaged in
with his mother. Thus, the jury reasonably could have
inferred that Harris was untruthful when he responded
to the question about whether the defendant was at the
scene of the shooting when it occurred, but, of course,
the jury could not have concluded solely from those
prior inconsistent statements that the facts supporting
them were true. Additionally, the defendant admitted,
albeit as a result of the confession allegedly made by
Harris that had been fabricated by and read to the
defendant by Early, that he was the shooter. See State
v. Camacho, 282 Conn. 328, 383, 924 A.2d 99 (state’s
case strong where, among other evidence, defendant
admitted he had shot woman), cert. denied, 552 U.S.
956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007). As such,
this factor favors the state.
Because the Williams factors primarily favor the
state, the defendant has failed to prove that the prosecu-
tor’s improper substantive use of Harris’ prior inconsis-
tent statement violated his rights to due process and a
fair trial.
II
BRADY VIOLATION
The defendant next claims that the state withheld
material evidence regarding Early’s credibility in viola-
tion of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963). Specifically, the defendant
claims that the state deprived him of the right to cross-
examine Early in regard to a Hartford Police Depart-
ment internal affairs report detailing his misconduct,
which was totally unrelated to the criminal incident
involving the defendant and Harris, stemming from an
encounter with a towing company. The state argues that
the report was neither favorable nor material because
it was not probative of Early’s untruthfulness, and it
was not reasonably probable that use of the report
would have changed the result of this case.
The following additional facts are relevant to the
disposition of this claim. The defendant alleges that,
subsequent to the parties’ filing of their initial briefs,
he became aware of an internal affairs report involving
Early through a January 24, 2017 article published by
the Journal Inquirer newspaper. The report detailed a
2007 investigation conducted by the Hartford Police
Department to determine whether Early had abused his
position as a police officer in attempting to convince
a towing company to release his car without charging
him a fee, and whether he intentionally misled the inves-
tigation by giving a false statement as to who drove
him to the towing company. The report stated that an
internal affairs sergeant sustained the charge of abuse
of police powers as well as the allegation that Early
intentionally made a false statement to investigators.
The report further stated that Early was issued a written
reprimand for abusing his position as a police officer
but was not disciplined for making the false statements,
as they did not appear aimed at misleading the investi-
gation.
On February 10, 2017, after discovering the report,
the defendant filed a motion for permission to file a
late motion for augmentation and rectification of the
record with this court in order to establish a Brady
claim. Specifically, the defendant sought an evidentiary
hearing to determine whether the state had failed to
disclose an internal affairs investigation relating to
Early at the time of trial and requested that the trial
court mark the report as an exhibit. On February 27,
2017, the state filed a response to the defendant’s
motion, conceding the facts on which the defendant
relied to establish his Brady claim and not opposing
rectification of the record. The state further conceded
that the report had been in the possession of the Hart-
ford Police Department but had not been disclosed by
the state prior to or during trial. Accordingly, the state
argued that because suppression of the report was not
a contested factual issue, an evidentiary hearing was
not necessary. On March 15, 2017, this court granted
the defendant’s motion for permission and ordered the
defendant to formally file his motion. On March 21,
2017, the defendant filed a revised motion for augmen-
tation and rectification of the record with the trial court,
in which he agreed with the state that an evidentiary
hearing was not necessary due to the state’s conces-
sions. On November 6, 2017, the court granted the
defendant’s motion and marked the report as an exhibit.
‘‘It is the duty of the state voluntarily to disclose
material in its exclusive possession which would be
exonerative or helpful to the defense . . . . The prose-
cution’s duty to disclose applies to all material and
exculpatory evidence that is within its possession or
available to it . . . and that the prosecution knew or
should have known was exculpatory. . . . To prove a
Brady violation, therefore, the [defendant] must estab-
lish: (1) that the state suppressed evidence (2) that was
favorable to the defense and (3) material either to guilt
or to punishment. . . . If the [defendant] fails to meet
his burden as to one of the three prongs of the Brady
test, then we must conclude that a Brady violation has
not occurred.’’ (Citations omitted; internal quotation
marks omitted.) Peeler v. Commissioner of Correction,
170 Conn. App. 654, 687–88, 155 A.3d 772, cert. denied,
325 Conn. 901, 157 A.3d 1146 (2017). Moreover,
‘‘[w]hether the [defendant] was deprived of his due
process rights due to a Brady violation is a question
of law, to which we grant plenary review.’’ (Internal
quotation marks omitted.) Id., 689.
In the present case, the state has conceded that the
internal affairs report was ‘‘suppressed within the mean-
ing of Brady and its progeny.’’ (Internal quotation marks
omitted.) As such, the inquiry becomes whether the
report was favorable to the defendant and material to
his guilt or his punishment. ‘‘The United States Supreme
Court . . . has recognized that [t]he jury’s estimate of
the truthfulness and reliability of a . . . witness may
well be determinative of guilt or innocence, and it is
upon such subtle factors as the possible interest of the
witness in testifying falsely that a defendant’s life or
liberty may depend. . . . Accordingly, the Brady rule
applies not just to exculpatory evidence, but also to
impeachment evidence . . . which, broadly defined, is
evidence having the potential to alter the jury’s assess-
ment of the credibility of a significant prosecution wit-
ness.’’ (Citations omitted; internal quotation marks
omitted.) Adams v. Commissioner of Correction, 309
Conn. 359, 369–70, 71 A.3d 512 (2013).
The defendant argues that the false statements that
Early made to investigators detailed in the report are
specific acts of misconduct that were essential to the
defense in order to impeach his credibility. The state
argues that because the Hartford Police Department
ultimately did not uphold the finding made by the
investigating internal affairs sergeant that Early had
intentionally made false statements, an inference of
untruthfulness stemming from the statements ‘‘was at
best very low.’’
Section 6-6 (b) (1) of the Connecticut Code of Evi-
dence provides that ‘‘[a] witness may be asked, in good
faith, about specific instances of conduct of the witness,
if probative of the witness’ character for untruthful-
ness.’’ Moreover, ‘‘[t]his court does not retry the case
or evaluate the credibility of the witnesses. . . .
Rather, we must defer to the [trier of fact’s] assessment
of the credibility of the witnesses based on its firsthand
observation of their conduct, demeanor and attitude.’’
(Internal quotation marks omitted.) Elsey v. Commis-
sioner of Correction, 126 Conn. App. 144, 153, 10 A.3d
578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011).
In the present case, the fact that Early was accused of
intentionally lying and was initially found to have done
so by the investigating internal affairs sergeant was
impeachment evidence that was favorable to the
defense. It would have been within the jury’s province to
assess Early’s credibility on the basis of the accusations
contained within the report. This court’s acceptance of
the state’s argument would be tantamount to preventing
a jury from conducting this assessment. Because the
internal affairs report would likely bear on the credibil-
ity of Early, it was potential impeachment evidence and,
therefore, favorable to the defendant’s position.
Although the internal affairs report was suppressed
within the meaning of Brady and was favorable to the
defense, it was not material under Brady. ‘‘Not every
failure by the state to disclose favorable evidence rises
to the level of a Brady violation. Indeed, a prosecutor’s
failure to disclose favorable evidence will constitute a
violation of Brady only if the evidence is found to be
material. The Brady rule is based on the requirement of
due process. Its purpose is not to displace the adversary
system as the primary means by which truth is uncov-
ered, but to ensure that a miscarriage of justice does
not occur. Thus, the prosecutor is not required to deliver
his entire file to defense counsel, but only to disclose
evidence favorable to the accused that, if suppressed,
would deprive the defendant of a fair trial . . . .
United States v. Bagley, [473 U.S. 667, 675, 105 S. Ct.
3375, 87 L. Ed. 2d 481 (1985)]. In a classic Brady case,
involving the state’s inadvertent failure to disclose
favorable evidence, the evidence will be deemed mate-
rial only if there would be a reasonable probability of
a different result if the evidence had been disclosed.
Bagley’s touchstone of materiality is a reasonable prob-
ability of a different result, and the adjective is
important. The question is not whether the defendant
would more likely than not have received a different
verdict with the evidence, but whether in its absence
he received a fair trial, understood as a trial resulting
in a verdict worthy of confidence. A reasonable proba-
bility of a different result is accordingly shown when
the government’s evidentiary suppression undermines
confidence in the outcome of the trial.’’ (Internal quota-
tion marks omitted.) Adams v. Commissioner of Cor-
rection, supra, 309 Conn. 370–71.
In the present case, the defendant argues that the
internal affairs report was material because Early’s tes-
timony was the state’s most compelling evidence and,
therefore, the defendant’s ability to cross-examine
Early with his own statements impacted the fairness
of the trial. The state argues that the report was not
material because it had little probative value for pur-
poses of casting doubt on Early’s investigation and the
defendant’s confession, the defendant had impeached
Early by other means, including his fabrication of the
purported Harris confession, and the state’s evidence
was strong.
The state’s failure to disclose the report to allow the
defendant yet another opportunity to impeach Early’s
credibility, viewed in the context of the entire trial,
does not undermine confidence in the jury’s verdict.
As previously discussed in part I E of this concurring
opinion, there was sufficient evidence in the record
to support the defendant’s conviction, namely, Officer
Fogg’s testimony that placed the defendant at the scene
ten minutes after the shooting; video footage that
showed the shooter in clothes similar to what the defen-
dant was wearing when he arrived on the scene; Harris’
prior inconsistent statements allowing the jury to infer
his lack of credibility; and the defendant’s confession
that he was the shooter. See Elsey v. Commissioner
of Correction, supra, 126 Conn. App. 160 (‘‘[T]here was
ample evidence to support the petitioner’s conviction.
. . . Therefore, we cannot say that the fact that the
state did not disclose the evidence . . . undermines
our confidence in the jury’s verdict.’’ [Citation omit-
ted.]). As previously set forth, Early’s credibility had
been impeached during his cross-examination when the
defense questioned him regarding his admitted fabrica-
tion of Harris’ purported confession, which, in turn, led
to the defendant’s confession. See Morant v. Commis-
sioner of Correction, 117 Conn. App. 279, 299, 979 A.2d
507 (‘‘[t]his evidence . . . taken in context is merely
cumulative impeachment evidence and, therefore, not
material under Brady’’), cert. denied, 294 Conn. 906,
982 A.2d 1080 (2009).
Because the state’s evidence was sufficient for the
jury to find the defendant guilty, and because the evi-
dence contained in the report was at best cumulative
concerning Early’s credibility, the internal affairs report
was not material within the meaning of Brady. Accord-
ingly, the defendant’s Brady claim fails.
III
PLAIN ERROR
The defendant next claims that the state’s agreement
with Harris not to prosecute Harris for any future acts
of perjury committed while testifying for the state at
the defendant’s trial constituted plain error because (1)
it clearly violated the public policy of this state against
immunizing perjured testimony and (2) it violated § 54-
47a.3 The defendant further argues that this improper
grant of immunity constitutes structural error that obvi-
ates the need to engage in harmless error analysis. In
the alternative, the defendant argues that, if harmless
error analysis applies, the state has failed to meet its
burden to show that the error was harmless beyond a
reasonable doubt. The state concedes that its
agreement not to prosecute Harris for perjury was a
defective and improper grant of immunity, but argues
that such error was not structural in nature, nor did it
cause the defendant manifest injustice.
The state concedes that its promise not to prosecute
Harris for perjury in connection with his upcoming testi-
mony was a defective and improper grant of immunity
that was inconsistent with Harris’ duty to testify truth-
fully. The state articulates that plain error analysis
requires a court not only to examine the nature of the
error, but also to assess the grievousness of its conse-
quences and whether it worked a serious and manifest
injustice on the defendant. The state argues that the
defendant was not harmed by the grant of immunity to
Harris because Harris did not state during his testimony
that the defendant had shot him or Cedeno. The state
refers to the court’s instructions to the jury that Harris’
out-of-court statements, including those in which he
said that the defendant shot him, could not be used
substantively, but only on the issue of the credibility
of his in-court testimony. The state also argues that
there was other evidence to prove the defendant’s guilt,
and that the jury reasonably could have found, on the
basis of evidence developed through a witness other
than Harris, and through the state’s impeachment of
Harris, that Harris was lying when he testified that he
did not know who shot him, and that everyone, includ-
ing the jury, should have seen that. From those facts
the state concludes that ‘‘the prosecutor’s error did not
inflict grievous harm causing manifest injustice upon
the defendant . . . .’’ Although the state refers to Har-
ris’ immunized testimony before the jury that was per-
mitted by the court, the state does not discuss the
court’s role and duty with respect to the truth seeking
process that is inherent in any trial, and the constitu-
tional, statutory, public policy and other institutional
implications and ramifications of a representative of
the state offering the testimony of a witness, and the
court’s permitting that testimony to be presented to
the jury, which both was anticipated and expected to
contain lies about a crucial issue in the trial, i.e.,
whether the defendant shot Harris and Cedeno. The
state also does not discuss the contradiction between
the grant of immunity that was not disclosed to the jury
and the usual oath to tell the truth, which Harris took
before the jury: ‘‘You solemnly swear or solemnly and
sincerely affirm, as the case may be, that the evidence
you shall give concerning this case shall be the truth,
the whole truth and nothing but the truth; so help you
God or upon penalty of perjury.’’ General Statutes
§ 1-25.
The following additional facts are relevant to this
claim. On October 9, 2014, the prosecutor and Harris
entered into an immunity agreement by which Harris
was granted transactional immunity for his testimony
regarding the events on March 28, 2013, the date of the
shooting, and use immunity, both direct and derivative,
for all other proceedings. That same day, October 9,
2014, prior to Harris’ testimony in the defendant’s trial,
the following exchange occurred between the court,
Harris’ counsel, and the prosecutor:
‘‘[The Court]: All right. And this additional immunity
agreement signed by the state’s attorney . . . do you
have any issues on that?
‘‘[Harris’ Counsel]: No. That was drafted—I was
involved in the drafting of that document, Your Honor.
‘‘[The Court]: All right.
‘‘[Harris’ Counsel]: And so it includes transactional
immunity to the events related to the—on the day of
the shooting, directly and indirectly. It involves use
immunity, so none of his words could be used directly
against him in this or any other proceeding in state or
federal court or anywhere else. It also includes deriva-
tive use so that his words can’t be used to investigate
and then come up with other evidence that can be used
against him in any proceeding. . . .
‘‘[Harris’ Counsel]: And my understanding is that
there is a tape recording or the prosecuting authority
believes that it has a tape recording of my client saying
something related to his testimony. So, I have concerns
about exposure to perjury, and my understanding is
that there has been an agreement that there wouldn’t
be any perjury prosecution related to my client’s testi-
mony today.
‘‘[The Prosecutor]: That’s correct, Your Honor.
‘‘[The Court]: Okay. Well, [counsel], I must compli-
ment you. I have been in the criminal justice system
for forty-two and one-half years. I’ve never heard of
anybody getting that agreement. But it’s an agreement
the state made. That’s their decision.’’
During Harris’ direct testimony, when the state
offered Harris’ tape-recorded phone conversation with
his mother as a prior inconsistent statement, the follow-
ing exchange occurred:
‘‘[The Prosecutor]: Well, this is the way you could
refresh his memory, Your Honor.
‘‘[The Court]: Well, you’re the one who agreed not to
prosecute him for perjury.
‘‘[The Prosecutor]: I agree.
‘‘[The Court]: Which is probably against the public
interest, but I didn’t step in.
‘‘[The Prosecutor]: There’s a lot of issues with public
interest in this case.
‘‘[The Court]: I must say this amount of perjury actu-
ally offends me.’’
‘‘[The plain error] doctrine, codified at Practice Book
§ 60-5,4 is an extraordinary remedy used by appellate
courts to rectify errors committed at trial that, although
unpreserved, are of such monumental proportion that-
they threaten to erode our system of justice and work
a serious and manifest injustice on the aggrieved party.’’
(Footnote added; internal quotation marks omitted.)
State v. Sanchez, 308 Conn. 64, 76–77, 60 A.3d 271
(2013).
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily [discernible] on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This deter-
mination clearly requires a review of the plain error
claim presented in light of the record. Although a com-
plete record and an obvious error are prerequisites for
plain error review, they are not, of themselves, suffi-
cient for its application. . . . [T]he plain error doctrine
is reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings. . . . [I]n addition to examin-
ing the patent nature of the error, the reviewing court
must examine that error for the grievousness of its
consequences in order to determine whether reversal
under the plain error doctrine is appropriate. A party
cannot prevail under plain error unless it has demon-
strated that the failure to grant relief will result in mani-
fest injustice. . . . [Previously], we described the two-
pronged nature of the plain error doctrine: [An appel-
lant] cannot prevail under [the plain error doctrine]
. . . unless he demonstrates that the claimed error is
both so clear and so harmful that a failure to reverse
the judgment would result in manifest injustice. . . .
‘‘It is axiomatic that, [t]he plain error doctrine . . .
is not . . . a rule of reviewability. It is a rule of revers-
ibility. That is, it is a doctrine that this court invokes
in order to rectify a trial court ruling that, although
either not properly preserved or never raised at all in
the trial court, nonetheless requires reversal of the trial
court’s judgment . . . for reasons of policy. . . . Put
another way, plain error review is reserved for only
the most egregious errors. When an error of such a
magnitude exists, it necessitates reversal.’’5 (Citations
omitted; emphasis in original; internal quotation marks
omitted.) State v. McClain, 324 Conn. 802, 812–14, 155
A.3d 209 (2017).
In the present case, the defendant argues that the
violation of § 54-47a (b) and the public policy against
immunizing perjured testimony constitutes plain error
that is structural in nature. The United States Supreme
Court has recently articulated that ‘‘[t]he purpose of
the structural error doctrine is to ensure insistence
on certain basic, constitutional guarantees that should
define the framework of any criminal trial. Thus, the
defining feature of structural error is that it affect[s]
the framework within which the trial proceeds, rather
than being simply an error in the trial process itself.
. . . For the same reason, a structural error def[ies]
analysis by harmless error standards.’’ (Citation omit-
ted; internal quotation marks omitted.) Weaver v. Mas-
sachusetts, U.S. , 137 S. Ct. 1899, 1907–1908, 198
L. Ed. 2d 420 (2017).6 As such, a trial is affected by
structural error when ‘‘the error always results in funda-
mental unfairness.’’ (Internal quotation marks omitted.)
State v. Cushard, 328 Conn. 558, 570, 181 A.3d 74 (2018).
Although structural error most commonly occurs in
the violation of a constitutional right; see Weaver v.
Massachusetts, supra, 137 S. Ct. 1908 (‘‘violation of the
right to a public trial is a structural error’’); see also
State v. Lopez, 271 Conn. 724, 733–34, 859 A.2d 898
(2004) (violation of constitutional right to be present
during in-chambers inquiry regarding defense counsel’s
potential conflict of interest was structural error); our
Supreme Court has also found structural error in the
form of a statutory violation. See State v. Murray, 254
Conn. 472, 496–98, 757 A.2d 578 (2000) (substitution
during jury deliberations of alternate juror who pre-
viously had been dismissed violated General Statutes
§ 54-82h [c]). In Murray, our Supreme Court overruled
in part its previous decision in State v. Williams, 231
Conn. 235, 645 A.2d 999 (1994), which had determined
that violation of § 54-82 (c) was subject to harmless
error analysis and concluded ‘‘that the inclusion of a
nonjuror among the ultimate arbiters of innocence or
guilt [in violation of § 54-82h (c)] necessarily
amount[ed] to a [defect] in the structure of the trial
mechanism that defie[d] harmless error review.’’
(Emphasis added; internal quotation marks omitted.)
State v. Murray, supra, 498. Accordingly, the court
endorsed the position that certain statutory violations
that pervade the entirety of the trial may be subject
to structural error analysis. ‘‘These so-called structural
errors tend to by their very nature cast so much doubt
on the fairness of the trial process that, as a matter of
law, they can never be considered harmless.’’ (Internal
quotation marks omitted.) State v. Cushard, supra, 328
Conn. 570.
Because structural error may occur in the form of a
statutory violation, structural error analysis is war-
ranted in the present case. ‘‘[T]o determine if the error
in the present case was structural, we must perform
an initial review of the record to determine whether
the [violation] had any impact on the subsequent trial
that irretrievably eroded its fundamental fairness.’’
(Emphasis added.) Id., 578. Under both § 54-47a (b)7
and our Supreme Court case law, immunity for perjured
or false testimony in a criminal trial is improper. See
State v. Giraud, 258 Conn. 631, 634–35, 783 A.2d 1019
(2001) (‘‘[i]mmunity . . . may not be a license to lie
while giving immunized testimony’’ [internal quotation
marks omitted]). As previously set forth, the state con-
cedes that its agreement not to prosecute Harris for
his perjured testimony at the defendant’s trial was an
improper and defective grant of immunity. Indeed, the
record reflects that both the very experienced trial court
judge and the prosecutor recognized that the breadth
of the immunity agreement was improper, and probably
unique, in Connecticut criminal proceedings. As such,
the issue is whether this improper grant of immunity
was so fundamentally unfair that it affected the entire
framework of the defendant’s trial.
It is axiomatic that ‘‘a primary function of a criminal
trial is to search for the truth. . . . The trial court has
a duty to preside at a trial and to take appropriate
actions, when necessary, that promote truth at the
trial.’’ (Citation omitted.) State v. Kirker, 47 Conn. App.
612, 617, 707 A.2d 303, cert. denied, 244 Conn. 914, 713
A.2d 831 (1998). ‘‘Although . . . an important function
of a trial is a search for facts and truth . . . a trial must
also be fair. State v. Corchado, 200 Conn. 453, 459, 512
A.2d 183 (1986) (discretion to be exercised must be
informed and guided by considerations of fundamental
fairness that are ingrained in the concept of due process
of law).’’ (Internal quotation marks omitted.) State v.
Allen, 205 Conn. 370, 379, 533 A.2d 559 (1987). More-
over, a jury is ‘‘entitled to assume . . . that [a witness’]
statements carried the sanction of the oath which [the
witness] had taken . . . .’’ Ruocco v. Logiocco, 104
Conn. 585, 591, 134 A. 73 (1926). Additionally, the trial
court’s unwaivable duty to prohibit knowingly perjured
testimony by a witness in a trial, and the jury’s entitle-
ment to assume that each witness is providing testi-
mony under the penalty of perjury, are embodied in the
language of § 54-47a (b), which explicitly forbids the
immunization of perjured testimony.
In the present case, the court knowingly abdicated
its duty to reject any agreement that facilitated Harris’
perjured testimony, and it undermined the truth seeking
purpose of the defendant’s trial by permitting Harris to
testify without fear of prosecution for perjury.8 The
defendant’s attorney did not make any objection on the
record to the immunity agreement between the state
and Harris. The court, however, appears immediately
to have accepted the agreement without asking the
defendant to comment on its validity. The court, as it
expressed on the record, was fully aware of the impro-
priety of, and other problematic issues raised by the
agreement, and it was also aware of and commented
on Harris’ obviously perjurious testimony after at least
some of it had occurred. In light of the clear statutory
invalidity of the agreement, and the other obvious issues
that were raised by the agreement, the court had a
clear and unwaivable duty to act to prohibit Harris’
testimony, even in the absence of any objection by the
defendant to it, and its failure to do so was plain error.
Additionally, it is reasonable to conclude, on the basis
of the record of the trial, that the state provided Harris
with immunity from perjury in order to use his testi-
mony as a basis to put Harris’ prior inconsistent state-
ments in front of the jury, initially to impeach his
credibility. The state, however, subsequently and in vio-
lation of its representation to the court that it offered
the evidence solely for the purpose of impeachment and
not for the truth of the statements therein, improperly
utilized those statements for their truth in its closing
argument. The court’s abdication of its duty to take
appropriate actions, when necessary, that promoted
truth finding at the trial by allowing the immunization
of Harris’ testimony so that he could not be charged with
and convicted of perjury undermined the fundamental
fairness of the defendant’s trial.
If the court, as it should have done pursuant to § 54-
47a (b) and Connecticut public policy, had rejected
the agreement for Harris’ testimony, there presumably
would have been no testimony by Harris before the jury
about the incident because Harris would have exercised
his fifth amendment privilege against self-incrimination,
and there would have been no structural error despite
the existence of the agreement. Although plain error in
this case exists solely because of the court’s acceptance
and implementation of the agreement, which allowed
the improper, overbroad, and seemingly unprecedented
immunization of Harris’ testimony that the state antici-
pated would include perjury; see footnote 2 of this con-
curring opinion; the collateral consequences of that
testimony enhance the egregiousness of the improper
grant of immunity. Had the state not provided Harris
with immunity for his intentional lies that it anticipated
were to occur during his testimony, Harris would not
have testified and, thus, the state would not have
improperly been able to utilize in its closing argument
Harris’ prior inconsistent statements against the defen-
dant in a way that substantively corroborated the state-
ments made by the defendant in his confession.
The court’s acceptance and implementation of the
agreement, which allowed the improper, overbroad
immunization of Harris’ testimony that was anticipated
to include lies that amounted to perjury thus constituted
plain error that was structural in nature. As previously
set forth, the plain error doctrine is reserved for truly
extraordinary situations in which the existence of the
error is so obvious that it affects the fairness and integ-
rity of and public confidence in the judicial proceedings.
See State v. McClain, supra, 324 Conn. 812–14. Giving
a witness a free pass to lie in his sworn testimony
satisfies that plain error requirement. The defendant
has demonstrated that the actions of the court and
the prosecutor resulted in manifest injustice to him;
perjured testimony is an obvious and flagrant affront
to the basic concepts of judicial proceedings, as it goes
to the very heart of the fair administration of justice.
United States v. Mandujano, 425 U.S. 564, 576–77, 96
S. Ct. 1768, 48 L. Ed. 2d 212 (1976). Accordingly, I
concur with the majority’s reversal of the defendant’s
conviction and remand of the case for a new trial, but,
because of the existence of such structural error, con-
clude that we do not need to exercise our supervisory
authority to do so.9
1
On December 14, 2017, prior to oral argument before this court, the
defendant filed a motion requesting supplemental briefing as to his claim
pursuant to Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed.
2d 215 (1963), which this court granted on January 11, 2018. On May 31,
2018, after oral argument, this court ordered, sua sponte, that the parties
file supplemental briefs addressing whether the state’s agreement not to
prosecute Harris for any perjury committed while testifying for the state
constituted plain error. On October 5, 2018, this court again ordered, sua
sponte, supplemental briefing to address whether this court should exercise
its supervisory authority to reverse the defendant’s conviction if the grant of
immunity to Harris for any perjury while testifying for the state was improper.
2
The defendant focuses on the actions of the prosecutor in entering into
the agreement with Harris that violated the public policy of Connecticut
and General Statutes § 54-47a. Without the acceptance and implementation
of that agreement by the court in allowing Harris to testify, the agreement
would have had no effect. I thus interpret the claims of the defendant to
include the actions of the court in allowing Harris to testify pursuant to the
illegal and improper agreement.
3
In its August 15, 2018 supplemental brief, the defendant argued that
‘‘[t]he agreement to immunize Harris from prosecution for any perjury he
might commit in testifying was plain error, both because it violated public
policy, and because it violated [§] 54-47a. It is well established that a convic-
tion obtained by the knowing use of perjured testimony is fundamentally
unfair. Adams v. Commissioner of Correction, supra, 309 Conn. 371–73;
United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342
(1976). . . . By expressly prohibiting grants of immunity for the crime of
perjury; [General Statutes] § 54-47a; the legislature safeguarded the funda-
mental rights to a fair trial and to confrontation. U.S. Const., amends. V, VI
and XIV; Conn. Const., art. I, § 8. . . . Perjured testimony is an obvious
and flagrant affront to the basic concepts of judicial proceedings; United
States v. Mandujano, 425 U.S. 564, 576–77, 96 S. Ct. 1768, 48 L. Ed. 2d 212
(1976); it goes to the very heart of the fair administration of justice. No
legal system can long remain viable if lying under oath is treated as no more
than a breach of etiquette. United States v. Cornielle, 171 F.3d 748, 753 (2d
Cir. 1999). . . . In the constitutional process of granting immunity to secure
witness testimony, perjury simply has no place whatever. United States v.
Mandujano, supra, 576–77.’’ (Citations omitted; internal quotation marks
omitted.)
Although the primary focus of the defendant’s argument is the agreement,
it is evident from the defendant’s August 15, 2018 supplemental brief that
the structural harm alleged to be caused to the defendant occurred after
the court allowed Harris to testify at trial with such an illegal and improper
grant of immunity that was not disclosed to the jury, which had witnessed
Harris take the usual oath to tell the truth: ‘‘You solemnly swear or solemnly
and sincerely affirm, as the case may be, that the evidence you shall give
concerning this case shall be the truth, the whole truth and nothing but the
truth; so help you God or upon penalty of perjury.’’ See General Statutes
§ 1-25.
4
Practice Book § 60-5 provides in relevant part that ‘‘[t]he court shall not
be bound to consider a claim unless it was distinctly raised at the trial or
arose subsequent to the trial. The court may in the interests of justice notice
plain error not brought to the attention of the trial court. . . .’’
5
The court in State v. McClain, 324 Conn. 802, 155 A.3d 209 (2017),
recently discussed the plain error doctrine, citing numerous examples of
its application by our Supreme Court and this court. See State v. Ruocco,
322 Conn. 796, 803, 144 A.3d 354 (2016) ‘‘(failure to give statutorily mandated
instruction is plain error); see also, e.g., Mueller v. Tepler, 312 Conn. 631,
645–46, 95 A.3d 1011 (2014) (plain error for Appellate Court to affirm judg-
ment of trial court granting motion to strike on alternative ground rather
than remanding to afford party opportunity to amend pleading); Ajadi v.
Commissioner of Correction, 280 Conn. 514, 522–25, 911 A.2d 712 (2006)
(failure of trial judge to remove himself from presiding over defendant’s
habeas petition plain error when judge had represented defendant at his
guilty plea); Belcher v. State, 99 Conn. App. 353, 354–58, 913 A.2d 1117 (2007)
(judge’s failure to disqualify himself based on his appearance as counsel on
brief filed on behalf of defendant on direct appeal was plain error); State
v. Cotton, 69 Conn. App. 505, 506, 794 A.2d 1116 (2002) (complete failure
to instruct jury as to meaning of term ‘drug dependency’ is plain error);
State v. Hair, 68 Conn. App. 695, 706, 792 A.2d 179 (plain error for court
to instruct jury on offense with which defendant was not charged and then
accept jury’s guilty verdict for offense on which jury had not been instructed),
cert. denied, 260 Conn. 925, 797 A.2d 522 (2002); State v. Thornton, 55 Conn.
App. 28, 33–34, 739 A.2d 271 (1999) (plain error to require defendant to pay
money into fund for future treatment or counseling of victim, as special
condition of probation).’’ State v. McClain, supra, 814.
6
In Weaver, the court set forth what it referred to as ‘‘at least three broad
rationales’’ for applying structural error analysis:
‘‘First, an error has been deemed structural in some instances if the right
at issue is not designed to protect the defendant from erroneous conviction
but instead protects some other interest. This is true of the defendant’s
right to conduct his own defense, which, when exercised, usually increases
the likelihood of a trial outcome unfavorable to the defendant. . . . That
right is based on the fundamental legal principle that a defendant must be
allowed to make his own choices about the proper way to protect his own
liberty. . . . Because harm is irrelevant to the basis underlying the right,
the Court has deemed a violation of that right structural error. . . .
‘‘Second, an error has been deemed structural if the effects of the error
are simply too hard to measure. For example, when a defendant is denied
the right to select his or her own attorney, the precise effect of the violation
cannot be ascertained. . . . Because the government will, as a result, find
it almost impossible to show that the error was harmless beyond a reasonable
doubt . . . the efficiency costs of letting the government try to make the
showing are unjustified.
‘‘Third, an error has been deemed structural if the error always results
in fundamental unfairness. For example, if an indigent defendant is denied
an attorney or if the judge fails to give a reasonable-doubt instruction, the
resulting trial is always a fundamentally unfair one. See Gideon v. Wain-
wright, 372 U.S. 335, [343–45], 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (right
to an attorney); Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078,
124 L. Ed. 2d 182 (1993) (right to a reasonable-doubt instruction). It therefore
would be futile for the government to try to show harmlessness.’’ (Citations
omitted; internal quotation marks omitted.) Weaver v. Massachusetts, supra,
137 S. Ct. 1908.
7
General Statutes § 54-47a (b) provides in relevant part: ‘‘No such witness
may be prosecuted or subjected to any penalty or forfeiture for or on account
of any transaction, matter or thing concerning which he is compelled to
testify or produce evidence, and no testimony or evidence so compelled, and
no evidence discovered as a result of or otherwise derived from testimony
or evidence so compelled, may be used as evidence against him in any
proceeding, except that no witness shall be immune from prosecution for
perjury or contempt committed while giving such testimony or producing
such evidence . . . .’’ (Emphasis added.)
8
The fact that Harris did not testify under the penalty of perjury, despite
the oath that he took in front of the jury, may also implicate the defendant’s
constitutional right to confront witnesses against him, as provided under
the sixth amendment. See Maryland v. Craig, 497 U.S. 836, 845–46, 110 S.
Ct. 3157, 111 L. Ed. 2d 666 (1990) (‘‘The central concern of the Confrontation
Clause is to ensure the reliability of the evidence against a criminal defendant
by subjecting it to rigorous testing in the context of an adversary proceeding
before the trier of fact. . . . [T]he right guaranteed by the Confrontation
Clause includes not only a personal examination . . . but also . . . insures
that the witness will give his statements under oath—thus impressing him
with the seriousness of the matter and guarding against the lie by the
possibility of a penalty for perjury . . . .’’ [Citations omitted; internal quota-
tion marks omitted.]).
9
Because I conclude that the trial court committed structural error by
permitting the state to grant Harris immunity from any perjury prosecution
related to his testimony, I need not reach the issue of whether this court
should also exercise its supervisory authority to reverse the defendant’s
conviction and to remand the case for a new trial, or instead to set rules
only for the future.