Opinion
AC 37826
03-26-2019
STATE of Connecticut v. Kevan SIMMONS
Laila M. G. Haswell, senior assistant public defender, with whom, on the brief, was Lauren Weisfeld, chief of legal services, for the appellant (defendant). Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Chris A. Pelosi, senior assistant state's attorney, for the appellee (state).
Laila M. G. Haswell, senior assistant public defender, with whom, on the brief, was Lauren Weisfeld, chief of legal services, for the appellant (defendant).
Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Chris A. Pelosi, senior assistant state's attorney, for the appellee (state).
Sheldon, Prescott and Bear, Js.
PRESCOTT, J.
In this criminal case, a witness for the state, George Harris, was promised that he would not be prosecuted for perjury even if he lied during his testimony. The trial court acquiesced to this agreement, despite recognizing that it "is probably against the public interest ...." This appeal requires us to decide, under the circumstances of this case, whether the defendant, Kevan Simmons, is entitled to a new trial because of this concededly unlawful promise. For the reasons that follow, we conclude that this error was so egregious in nature that it undermines public confidence in the due administration of justice and that, pursuant to our supervisory powers, the defendant should be granted a new trial.
The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), 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, in his initial brief, that the prosecutor committed improprieties during closing argument that deprived him of his right to a fair trial, including, among other things, suggesting to the jury that it could consider as substantive evidence a prior statement of Harris that was admitted at trial only for impeachment purposes, in which he identified the defendant as his assailant. We later granted the defendant permission to file a supplemental brief addressing an additional claim of prosecutorial impropriety, namely, whether the defendant's right to due process was violated by the state's failure to disclose to him, prior to trial, certain exculpatory evidence relevant to the veracity of the detective who took a statement from the defendant. See Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
After oral argument before this court, and on the basis of our review of the record, we ordered the parties, sua sponte, to file additional supplemental briefs addressing an unpreserved claim of error not raised by the parties, namely, "(1) whether the state's agreement not to prosecute George Harris for any future acts of perjury committed while testifying for the state at the defendant's trial constituted plain error because it violates the public policy of this state against immunizing perjured testimony; see General Statutes § 54-47a ; see also State v. Giraud , 258 Conn. 631, 634–35, 783 A.2d 1019 (2001) ; and (2) if so, whether such error was structural error or subject to harmless error analysis." Each party filed a supplemental brief. In its brief, the state conceded that its grant of immunity to Harris was improper. We later asked the parties to submit additional supplemental briefs addressing whether this court should exercise its supervisory authority to reverse the conviction. Because we exercise our supervisory powers to order a new trial for the defendant on the basis of the improper grant of immunity to Harris, we do not reach the merits of the remaining claims raised by the defendant.
Although we ordinarily would not reverse a conviction on the basis of an unpreserved claim of error that was not raised by the parties on appeal, we have the discretionary authority to address, sua sponte, instances of error that are cognizable from the record and result in manifest injustice or constitutional error, provided that we give the parties an opportunity to be heard by way of supplemental briefing. See Practice Book § 60-5 ; Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc. , 311 Conn. 123, 161–62, 162 n.33, 84 A.3d 840 (2014). The parties here were provided with an opportunity to address fully both the claim of error and the appropriate remedy. The state has not argued that this court abused its discretion by raising the claim sua sponte or that it has been unfairly prejudiced by this procedure, except if we were to reverse the defendant's conviction pursuant to our supervisory authority over the administration of justice. Cf. State v. Connor , 321 Conn. 350, 374, 138 A.3d 265 (2016). We will address that claim of prejudice in this opinion. See part IV of this opinion.
The jury reasonably could have found the following facts. A shooting occurred on Bedford Street in Hartford on March 28, 2013, involving the defendant; Harris, his friend; and Joaquin Cedeno. Specifically, at approximately 9:22 p.m. that day, the defendant and Harris were walking through the Bedford mall, a term commonly used to describe a cluster of apartment buildings on either side of Bedford Street, when they encountered Cedeno standing on the front stoop of an apartment building.
Cedeno and the defendant began arguing. The argument quickly escalated into a physical fight. Harris tried to break up the fight but was unsuccessful. During the fight, the defendant pulled out a gun and pointed it at Cedeno. Cedeno attempted to push the gun away from himself, but the defendant fired several gunshots, hitting both Cedeno and Harris. Cedeno, Harris, and the defendant then all ran from the scene in different directions.
Officer Robert Fogg of the Hartford Police Department, who was working nearby, received a dispatch that gunshots had been fired at 137 Bedford Street. Fogg drove to the location. When he arrived, he found Harris, who had been shot in the leg, lying in an alleyway just south of 137 Bedford Street. Harris did not name his shooter and only told Fogg to relay a message to his mother that he loved her. Harris was taken to a hospital by ambulance.
At 9:36 p.m., Officer Bartosz Kubiak was dispatched to 378 Garden Street, a location close to the scene of the shooting, after someone reported a serious assault with a firearm. When Kubiak arrived, Cedeno was sitting on the front steps of 378 Garden Street. Cedeno's pants, T-shirt, and sweatshirt were stained with blood, and it appeared to Kubiak that Cedeno had been shot several times on the right side of his body. Cedeno did not indicate to Kubiak who had shot him. Cedeno was also transported to a hospital. Kubiak searched the surrounding area for evidence relating to the shooting but did not find a weapon.
Approximately ten minutes after the shooting, the defendant returned to the scene of the shooting on Bedford Street. He approached Fogg, and the two began talking. Fogg knew that the defendant and Harris were friends, so Fogg relayed to the defendant the message Harris had asked Fogg to give to Harris' mother. Fogg also asked the defendant if he had seen anything with respect to the shooting, and the defendant replied that he had not.
On March 30, 2013, two days after the shooting, Detective Christopher Reeder spoke to Harris at the hospital. Harris told Reeder that, on the night of the shooting, he was walking through Bedford mall with a person nicknamed "Ghost" when he heard gunshots and realized he had been shot. He described the shooter as a black male wearing black clothing. Reeder told Harris that the police had video that captured the incident. Harris then rolled over in his hospital bed, sighed, and said, "You ain't even here; do what you gotta do." Harris also told Reeder that he might have seen "Boobie," the nickname of Cedeno, at the shooting.
That same day, Reeder also questioned Cedeno about the shooting. Cedeno described his shooter as a black male of average build, about five feet, eight inches tall, and between twenty and twenty-five years old. Cedeno also told Reeder that, on the night of the shooting, he had been hanging out in Bedford mall when he was approached by the shooter. Cedeno recalled that the two got into an argument, during which the shooter took out a gun and fired it at Cedeno. Cedeno told Reeder that, after the gunfire broke out, he ran through an alleyway between 133 and 135 Bedford Street, and made it to Garden Street before he realized that he had been shot and collapsed.
On April 19, 2013, Harris was arrested on drug charges. After reading Harris his Miranda rights, Reeder began to question Harris about the shooting incident on Bedford Street. Harris relayed to Reeder a version of events similar to that which he had given when he was questioned about the shooting in the hospital. Reeder then showed Harris a video comprised of footage recovered from security cameras attached to various apartments on Bedford Street (video) that depicted the shooting. Harris once again pointed out "Ghost" in the video, but did not offer any additional details about the shooting or identify himself on the video.
See Miranda v. Arizona , 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
While incarcerated on the drug charges, Harris made a phone call to his mother, during which he implicated the defendant as his shooter. That call was recorded by the correctional facility.
On May 2, 2013, the defendant was arrested on charges unrelated to the shooting of Harris and Cedeno. That day, Reeder, Detective Renee LaMark-Muir, and Detective Reginald Early interviewed the defendant. Reeder showed the defendant the video of the shooting. Afterward, Early presented the defendant with a statement that he represented to the defendant had been given to the police by Harris. Early, however, had fabricated the entire statement in order to encourage the defendant to confess that he was the shooter on the belief that Harris had already inculpated him. In the fabricated statement, Harris purportedly told the police that Cedeno had attempted to rob him and the defendant at gunpoint, and that the defendant had shot Cedeno in self-defense. The fabricated statement further provided that the defendant also had shot Harris by accident. After Early read the fabricated statement to the defendant, he became upset and began crying. Early then began questioning the defendant about the shooting, and the defendant gave a written statement in which he admitted that he had shot Cedeno and Harris. Specifically, the defendant stated that Cedeno had attempted to rob the defendant and Harris, and that the defendant was forced to shoot Cedeno in self-defense but hit Harris, too. The defendant also stated that he had found the gun with which he shot Cedeno and Harris earlier that day near a dumpster and, after the shooting, ran and hid the gun before the police arrived. He stated that he returned to Bedford Street after shooting Cedeno and Harris to make sure that Harris was okay. Finally, the defendant admitted that he was the person depicted in the surveillance video speaking to Officer Fogg after the shooting.
The fabricated statement provided, in relevant part: "My best friend [the defendant] shot me while he was defending us from another guy who was trying to rob us. He had a gun too. I do not know the other guy who had the gun but he was a Spanish guy. I heard his name was ‘Boobie’. My best friend name is Kevan Simmons, but everybody knows him as ‘Low’. Low and I were chilling on Bedford Street when the dude tried to rob us for our money. We all started fighting on the stairs and the Spanish guy pulled out a gun. Low and I had found the gun Low had earlier that day.
"Low normally doesn't carry a gun, but like I said he found the gun that day. So when the Spanish guy walked up on us he said "give me all your money". We told him we didn't have any money and Low managed to grab him and we started fighting.
"I grabbed him too and that's when we pulled out a gun. Low stepped back and pulled out the gun we found and started shooting. Low hit me by accident and the Spanish guy got hit too. Low is a good guy and doesn't carry guns. He was protecting us and I respect him for that. The police should arrest the Spanish guy for trying to rob us.
"The detectives showed me some photos and I picked out a guy I know as Low. I have known Low for years. Low came back to the scene after he shot me because that's my boy and he cares about me. Low went to the hospital too. I am not mad at Low for shooting me by accident. I respect him for protecting me because that Spanish guy could have killed us. We didn't even have no money like that for him to be robbing us.
"That is all I have to say about me being shot. Kevan Simmons is Low and they call ‘Deep’."
On October 1, 2014, the state filed the operative substitute information, in which it charged the defendant with two counts of assault in the first degree in violation of § 53a-59 (a) (5), and one count each of criminal possession of a pistol or revolver in violation of § 53a-217c (a) (1) and carrying a pistol without a permit in violation of § 29-35 (a). On October 8, 2014, the jury trial began.
On the first day of trial, the state called Harris as a witness during its case-in-chief. Harris' attorney was present and advised Harris to invoke his fifth and fourteenth amendment privilege against self-incrimination. Harris did so and refused to answer any questions by the state. A colloquy then ensued between the court, the state, and defense counsel regarding a potential grant of immunity for Harris.
At that time, the state agreed not to prosecute Harris for any crimes stemming from his involvement in the March 28, 2013 shooting. His attorney rejected the state's offer of immunity as insufficient because if Harris were to testify he could expose himself to federal criminal liability with respect to the Bedford Street shooting incident and might implicate himself in an unrelated shooting in 2011 for which he had just recently been served a warrant. The state represented to the court that it would inquire as to whether it could obtain federal immunity for Harris with respect to his testimony at the defendant's trial. The court then continued Harris' appearance until the next day.
On October 9, 2014, the state again called Harris as a witness. Before Harris testified, the court inquired as to whether the state and Harris had come to an agreement regarding the grant of immunity. Harris' counsel represented to the court that he believed an agreement had been reached. The following exchange then ensued between defense counsel, the court, and the prosecutor:
"[Harris' Counsel]: And so [the grant of immunity] 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 derivative 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. There are other issues that we have talked about that I think need to be addressed.
"The Court: Go ahead.
"[Harris' Counsel]: One is that the immunity statute does not immunize a witness from committing perjury at the time .
"The Court: It does not .
"[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 testimony today ."[The Prosecutor]: That's correct , Your Honor.
"The Court: Okay. Well, [counsel], I must compliment 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. Now, are we ready to testify?" (Emphasis added.)
The state filed with the court a document, signed by Gail P. Hardy, the Hartford state's attorney, partially memorializing the grant of immunity. It states: "Under [§ 54-47a ], the Hartford State's Attorney's Office grants immunity from prosecution for George Harris for any alleged conduct directly or indirectly related to Hartford Case # 13-9934 and State v. Kev [a ]n Simmons , Docket No.: HHD-CR13-0666536-T. The immunity shall be transactional immunity for the events on March 28, 2013, and use immunity—direct and derivative—for all other proceedings."
This memorialization does not appear to include the state's promise to immunize Harris from prosecution for any perjury he might commit while testifying at the defendant's trial.
Fully immunized, Harris was then administered the oath for testifying witnesses by the clerk in the presence of the jury. Although the oath taken by Harris was not transcribed, the required contents of the oath are set forth in General Statutes § 1-25, which provides that the oath administered to witnesses shall be: "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."
Harris then testified that he had been on Bedford Street on the night in question, and had been shot in the leg and hospitalized. He indicated that he and the defendant had been friends for eight years, and that he also knew Cedeno, the other gunshot victim. The state asked Harris a series of additional questions about his recollections from the night he was shot, including who he was with that night, what he and others were wearing, and whether he knew the identity of the shooter. Harris testified that he could not recall any details of the night he was shot because he had been intoxicated. He also testified that he was unable to identify anyone, including himself, from the videotape of the incident, which the state played for him in court, stopping it at various points to ask questions. He did not name the defendant as his shooter.
Although the jury was not shown the video at that time, the video was later shown to the jury and admitted into evidence as a full exhibit.
The state, however, attempted to impeach Harris' testimony that he did not know the identity of his shooter by questioning him about the May 6, 2013 telephone call he made to his mother while he was incarcerated, during which he identified the defendant as the person who shot him. After establishing that he had signed a consent form when he was incarcerated acknowledging that his telephone calls would be recorded, the state asked Harris if he had talked to his mother about this case. In particular, the prosecutor asked him if he had told his mother that he was not going to cooperate with the police because he believed that he could only receive a thirty day sentence for refusing to testify, the defendant was in a holding cell nearby, and the police had shown him a videotape of "this nigga shooting at me and this dude." He repeatedly responded that he could not remember what he had told his mother, including whether he had told her that he could identify both himself and the defendant in the surveillance videotape he was shown by the police. At this point, the jury was excused so that the state could play the recording of the telephone call for the witness in an attempt to refresh his recollection.
Outside the presence of the jury, the following colloquy between the court and the prosecutor about the immunity agreement ensued during a discussion of the admissibility of the call from Harris to his mother:
"[The Prosecutor]: The state will be offering [the recording of the telephone call] as a prior inconsistent statement by Mr. Harris. Now, if Mr. Harris—
"The Court: Well, are you sure that he does not have early onset dementia ? Because for a young man, his memory's shot.
"[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 issue with public interest in this case.
"The Court: I must say this amount of perjury actually offends me." (Emphasis added.)
Harris was then questioned before the jury about what he had said to his mother during the prison phone call. After Harris denied having told his mother that he could identify himself and the defendant in the videotape he had been shown by the police and that he could not remember making such a statement, portions of the audiotaped recording of the phone call were played to the jury without objection.
After the state had completed its direct examination of Harris, the court gave the jury the following instruction: "Ladies and gentlemen, just as I gave you the instruction a few minutes ago on prior misconduct by a witness, evidence has been presented through this witness that statements made outside the court are inconsistent with some of his trial testimony. You should consider that out-of-court evidence only as it relates to his credibility. It's not substantive evidence. In other words, you consider it evidence as you would any other evidence inconsistent with his conduct in determining the weight to give to his testimony in court."
Despite the court's instruction that the phone call between Harris and his mother could not be used for substantive purposes, the prosecutor, during closing argument, drew the jury's attention to specific portions of that phone call, arguing as follows: "One point in his testimony that he's talking to his mom: First, I think I am being charged with everything [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 he got charged with. They showed me the video. When they first showed me the video, I'm telling them: I don't know who that is. That's why they saying I won't cooperate. I'm like, that's me. That's Boobie. I don't know who that is. He like, who's that? That's Ghost. That's Ghost. 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.
"They smacked him with the charges right there. He testified that they're arrested at the same time, that they were at [the] Hartford lockup at the police department, and they were placed in cells next to each other. They smacked him with the charges right there. They had us together. They really put us together and this ‘n’ shot me. They just got us together. They don't care. And then he laughs. I'm in a holding cell. I don't know how he seen me. I'm asleep. He seen me. They put him 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. Now, I'm going to—now, that's another factor, as I said. [The defendant]—Mr. Harris places him at the scene as the shooter. " (Emphasis added.) Thus, the state attempted to make substantive use of Harris' recorded phone call to his mother despite the fact that the court had admitted it only for impeachment purposes and not for the truth of any of Harris' statements made during the phone call.
On October 14, 2014, the jury returned a verdict of guilty on all counts of the operative substitute information. On January 6, 2015, the court sentenced the defendant to twenty-three years of incarceration followed by ten years of special parole. This appeal followed. Additional facts and procedural history will be set forth as necessary.
The defendant claims that the state's agreement not to prosecute Harris for any act of perjury he committed while testifying for the state during the defendant's trial constituted plain error because it clearly violated a public policy against immunizing perjured testimony. This improper grant of immunity, the defendant contends, constitutes structural error that obviates the need to engage in harmless error analysis and warrants a new trial. 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. Finally, the defendant argues that we should exercise our supervisory authority over the administration of justice to reverse his conviction and order a new trial.The state contends that, although there was error, that error was not structural in nature and did not cause the defendant manifest injustice. Additionally, the state argues that this court should not exercise its supervisory powers over the administration of justice to reverse the conviction and order a new trial.
Although we ultimately decide to reverse the defendant's conviction and order a new trial pursuant to our supervisory authority, it is, in our view, helpful to discuss the question of structural error and harm to explain why we choose to resolve the case by resort to our supervisory powers rather than by employing the structural error doctrine or through an evaluation of harm to the defendant. See State v. Rose , 305 Conn. 594, 606–607, 46 A.3d 146 (2012).
I
We begin with a discussion of the plain error doctrine. It is axiomatic that an unpreserved claim of error, i.e., one that was neither distinctly raised before nor decided by the trial court, may be considered pursuant to the plain error doctrine. "[The plain error] doctrine, codified at Practice Book § 60-5, 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. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. 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.... In addition, 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 integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly....
"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 discernable on the face of a factually adequate record, [and] also ... obvious in the sense of not debatable.... This determination clearly requires a review of the plain error claim presented in light of the record.
"Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application.... [I]n addition to examining 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 demonstrated that the failure to grant relief will result in manifest injustice.... In State v. Fagan , [280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236 (2007) ], [our Supreme Court] described the two-pronged nature of the plain error doctrine: [An appellant] 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." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Sanchez , 308 Conn. 64, 76–78, 60 A.3d 271 (2013).
The state concedes that its improper immunity agreement with Harris violated the first prong of the plain error doctrine because the error is discernible on the face of a factually adequate record. Perhaps more significantly, the record reflects that the trial court and the prosecutor either knew or should have known that the promise of immunity to Harris by the state was improper and yet, the court permitted Harris to testify pursuant to an unlawful agreement that he could not be prosecuted for perjury even if he lied during his testimony. Despite the state's concession, it is important for us to explicate fully the reasons why such an agreement violates public policy and undermines confidence in our judicial system."[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 a 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) ; see also State v. Mendoza , 119 Conn. App. 304, 321, 988 A.2d 329 (court required "to balance the defendant's interest in a fair proceeding with a trial's fundamental and ever present search for the truth"), cert. denied, 295 Conn. 915, 990 A.2d 868 (2010) ; Riley v. Goodman , 315 F.2d 232, 234 (3d Cir. 1963) ("We have long abandoned the adversary system of litigation which regards opposing lawyers as players and the judge as a mere umpire whose only duty is to determine whether infractions of the rules of the game have been committed.... A trial is not a contest but a search for the truth so that justice may properly be administered." [Citation omitted.] ).
See footnote 17 of this opinion.
"From ancient times it has ever been held essential that witnesses in court proceedings swear or affirm before giving evidence." (Internal quotation marks omitted.) Cologne v. Westfarms Associates , 197 Conn. 141, 153, 496 A.2d 476 (1985). Our statute criminalizing perjury plays a critical role in the search for the truth at trial because it significantly deters a witness who takes an oath or an affirmation from testifying falsely at a time when the witness' testimony will significantly impact the rights of a defendant. See General Statutes § 53a-156 (a) ; Maryland v. Craig , 497 U.S. 836, 845–46, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (confrontation clause "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" [internal quotation marks omitted] ); State v. Tye , 248 Wis.2d 530, 540–41, 636 N.W.2d 473 (2001) ("[t]he purpose of an oath or affirmation is to impress upon the swearing individual an appropriate sense of obligation to tell the truth ... by creating liability for perjury" [footnotes omitted] ); 58 Am. Jur. 2d 884–86, 888–89, Oath and Affirmation §§ 1, 5 and 6 (2012).
General Statutes § 53a-156 (a) provides in relevant part: "A person is guilty of perjury if, in any official proceeding, such person intentionally, under oath ... makes a false statement, swears, affirms or testifies falsely, to a material statement which such person does not believe to be true."
Section 54-47a sets forth the requirements regarding the grant of immunity to a witness who has refused to testify pursuant to his privilege against self-incrimination guaranteed by the fifth and fourteenth amendments to the United States constitution. Section 54-47a (a) provides in relevant part that "[w]henever in the judgment of the Chief State's Attorney, a state's attorney or the deputy chief state's attorney, the testimony of any witness ... in any criminal proceeding involving ... felonious crimes of violence ... is necessary to the public interest , the Chief State's Attorney, the state's attorney, or the deputy chief state's attorney, may, with notice to the witness, after the witness has claimed his privilege against self-incrimination, make application to the court for an order directing the witness to testify or produce evidence subject to the provisions of this section." (Emphasis added.) Section 54-47a (b) provides in relevant part that "[u]pon the issuance of the order such witness shall not be excused from testifying ... on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. 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.)
The record is unclear as to whether the court made the predicated findings required by the statute in order to permit a grant of immunity to the witness. Certainly, the remarks made by the court implicitly sanctioned the state's arrangement with Harris, and Harris testified in accordance with his agreement with the state.
In State v. Giraud , supra, 258 Conn. at 634–38, 783 A.2d 1019, our Supreme Court considered a related immunity issue. Specifically, the defendant in Giraud claimed that the trial court improperly had failed to grant a defense witness immunity from prosecution. Id., at 634, 783 A.2d 1019. Prior to that witness being sworn, the defendant had moved that the state be compelled to grant the witness immunity with respect to his testimony, "with the exception [of] any perjury committed by him ...." (Internal quotation marks omitted.) Id. In rejecting the defendant's claim, our Supreme Court noted that "[t]he request did not distinguish between perjury committed before [the witness] was granted immunity and perjury committed by him when testifying after such a grant of immunity. Immunity, of course, may not be a license to lie while giving immunized testimony ." (Emphasis added; internal quotation marks omitted.) Id., at 634–35, 783 A.2d 1019. Similarly, the Supreme Court of the United States has consistently held that grants of immunity cannot extend to future perjurious testimony given by a witness—i.e., perjury committed during the course of the immunized testimony. See United States v. Apfelbaum , 445 U.S. 115, 127–30, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980) ; see also Glickstein v. United States , 222 U.S. 139, 143, 32 S.Ct. 71, 56 L.Ed. 128 (1911) (testimony given under a license to commit perjury is not "testimony in the true sense of the word").
In the present case, it is undisputed that the immunity obtained by Harris included immunity from prosecution for any perjury that Harris might commit while testifying as a witness for the state against the defendant. The state promised immunity to overcome Harris' invocation of his fifth and fourteenth amendment privilege against self-incrimination and to force him to testify. The promise plainly violated the strong public policy that is reflected in the statutory prohibition contained in § 54-47a (b).
It is unclear, on the basis of the record presented, whether Harris testified pursuant to an order issued directly under § 54-47a because the immunity agreement filed by the state with the court does not appear to be the byproduct of an application filed by the state with the court seeking an order compelling Harris to testify. Moreover, the court did not explicitly issue an order in the public interest or otherwise require Harris to testify pursuant to a particular grant of immunity. It would strain credulity, however, to imagine that the prosecutor could directly offer a witness immunity for perjury committed while providing immunized testimony if such a grant of immunity would be prohibited if ordered by the court pursuant to the procedures of § 54-47a.
A jury is entitled to assume that the statements of a witness who testifies at trial "carr[y] the sanction of the oath which [he or] she ha[s] taken ...." Ruocco v. Logiocco , 104 Conn. 585, 591, 134 A. 73 (1926). In the present case, the transcript of the proceedings indicates that Harris was sworn in by the clerk in the presence of the jury. Without any knowledge of the improper immunity agreement, the jury presumably believed that Harris was testifying under the sanction of the oath that he took "upon the penalty of perjury." General Statutes § 1-25. Unbeknownst to the jury, however, his oath had no significance because Harris knew that the immunity agreement meant he was free to lie without subjecting himself to legal jeopardy. In other words, a fraud was perpetrated on the jurors by permitting Harris to swear to a meaningless oath that gave his testimony an indicium of reliability that was not in fact present. In sum, the improper grant of immunity violates public policy and undermines the perception of and confidence in our system of justice.
II
Having explained why the grant of immunity in this case violates public policy, we next turn to the question of whether this impropriety constitutes structural error that obviates the need to engage in harmless error analysis to determine whether the defendant suffered a manifest injustice. The state contends that the improper grant of immunity does not constitute a structural error that would excuse the defendant from establishing that it caused a manifest injustice to him because the harm suffered by the defendant, if any, is not "unquantifiable or indeterminate" and was not of "such pervasiveness or magnitude" to rise to the level of structural error.
This question appears to be a matter of first impression, as our research has not revealed any reported cases addressing it. The United States Supreme Court recently set forth a comprehensive discussion of the structural error doctrine: "The 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 a 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....
The Supreme Court of Delaware afforded an unlawful immunity agreement harmless error review in Worthy v. State , 120 A.3d 581, 586–87 (Del. 2015). In Worthy , the court concluded that the state failed to demonstrate that the error was harmless beyond a reasonable doubt. Id., at 587.
"The precise reason why a particular error is not amenable to that kind of analysis—and thus the precise reason why the Court has deemed it structural—varies in a significant way from error to error. There appear to be at least three broad rationales.
"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. Wainwright , 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.
"These categories are not rigid. In a particular case, more than one of these rationales may be part of the explanation for why an error is deemed to be structural.... For these purposes, however, one point is critical: An error can count as structural even if the error does not lead to fundamental unfairness in every case. See [ United States v. Gonzalez-Lopez , 548 U.S. 140, 149 n.4, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) ] (rejecting as inconsistent with the reasoning of our precedents the idea that structural errors always or necessarily render a trial fundamentally unfair and unreliable ... [citations omitted; internal quotation marks omitted] ). Weaver v. Massachusetts , ––– U.S. ––––, 137 S.Ct. 1899, 1907–1908, 198 L.Ed.2d 420 (2017) ; see also State v. Latour , 276 Conn. 399, 410–12, 886 A.2d 404 (2005) ; State v. Lopez , 271 Conn. 724, 733–34, 859 A.2d 898 (2004).
One example given by the court in Gonzalez-Lopez of structural error that may not necessarily result in demonstrable harm to a particular defendant but nevertheless warrants reversal are cases in which a defendant improperly is denied his right to self-representation, "a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant ...." (Internal quotation marks omitted.) United States v. Gonzalez-Lopez , supra, 548 U.S. at 149 n.4, 126 S.Ct. 2557.
On one hand, the error in this case reasonably can be characterized as affecting the structural integrity of the entire trial. Permitting the testimony at a criminal trial of even a single witness who does not face the sanction of a prosecution for perjury undermines the truth seeking purpose of a trial. On the other hand, the error in this case, while egregious in nature, was related directly to a single witness who testified during a distinct portion of the trial and did not necessarily affect the entire proceeding.
The error here does not fall within the first general category of structural errors because it does not implicate a right, similar to the defendant's right to conduct his own defense, that is separate and distinct from legal protections that are designed to protect against erroneous convictions. Moreover, the second category of structural error, i.e., those errors the effect of which are simply too difficult to measure, is not applicable because there may be instances in which the effect of the improper grant of immunity on the verdict is measurable and quantifiable. For purposes of illustration, imagine a case in which twenty-five witnesses identify the defendant as the perpetrator but one of the witnesses testifies after having been given immunity from a perjury prosecution for his testimony. In such a scenario, a reviewing court could reasonably conclude that, in light of the testimony of the twenty-four other witnesses, the testimony of the one improperly immunized witness was harmless beyond a reasonable doubt and did not cause the defendant to suffer a manifest injustice.
Indeed, we are aware that, at first blush, the unlawful immunity agreement in the present case appears analogous to instances in which a witness testifies at trial without properly having been sworn in through the administration of an oath. Under existing federal jurisprudence, testimony by an unsworn witness is not considered structural error and, in fact, courts have deemed such claims of error forfeited if not raised before the trial court. See, e.g., United States v. Watson , 611 Fed. Appx. 647, 661–62 (11th Cir. 2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 1212, 194 L.Ed.2d 215 (2016). Although the two errors are similar because both involve testimony given by a witness unencumbered by the legal sanction of an oath, the situation in the present case involves a far more insidious error, warranting a different analysis. The failure to swear in a witness arising in these federal cases presumably is the product of inadvertence. Furthermore, the error typically occurs in the presence of the jury, which may be aware that the oath was not given and can evaluate the unsworn testimony accordingly. In the present case, by contrast, the jury was deceived into believing that Harris was testifying under the penalty of perjury.
The error in this case is more akin to those arising in the third category of structural errors, i.e., those errors, such as the failure to give a reasonable doubt instruction, that always result in fundamental unfairness to a defendant. The defendant's sixth and fourteenth amendment right to confront the witnesses against him is vitiated in circumstances in which a witness does not testify under the penalty of perjury. As the United States Supreme Court stated in Maryland v. Craig , supra, 497 U.S. at 836, 110 S.Ct. 3157, "[t]he central concern of the [c]onfrontation [c]lause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of adversary proceeding before the trier of fact.... [T]he right guaranteed by the [c]onfrontation [c]lause includes not only a personal examination [of the witness], 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 quotation marks omitted.) Id., at 845–46, 110 S.Ct. 3157.
Even if the error in this case implicated only a statutory as opposed to a constitutional right of the defendant, the deprivation of that statutory right may also be so significant as to constitute structural error. For example, our Supreme Court has suggested, without explicitly deciding, that a court's noncompliance with a statute mandating that the jury be instructed regarding the defendant's constitutional right not to testify is structural error and not subject to harmless error analysis. State v. Sinclair , 197 Conn. 574, 584–86, 500 A.2d 539 (1985) ; see also State v. Ruocco , 322 Conn. 796, 805, 144 A.3d 354 (2016).
In light of the dearth of authority on the question of whether the error in this case is structural in nature, and consistent with our practice of not deciding thorny constitutional questions when possible, we conclude that it is unnecessary to decide whether the defendant's constitutional rights were violated by the improper immunity agreement or whether the structural error doctrine applies in this case. Instead, for the reasons we will set forth in part IV of this opinion, we choose to exercise our supervisory powers over the administration of justice to order a new trial in this case.Indeed, our Supreme Court has taken a similar approach in several cases. In State v. Padua , 273 Conn. 138, 178–79, 869 A.2d 192 (2005), our Supreme Court declined to decide whether principles of double jeopardy required an appellate court to adjudicate the defendant's insufficiency of the evidence claim before addressing the defendant's other claims on appeal. Instead, the court in Padua , exercising its supervisory powers, concluded that it was appropriate to impose a rule requiring review of insufficiency of the evidence claims first, even in the absence of a conclusion that the defendant's constitutional rights would be violated otherwise. Id. ; see also State v. Coleman , 242 Conn. 523, 534, 700 A.2d 14 (1997) (exercising supervisory powers in lieu of deciding state constitutional claim).
In State v. Rose , supra, 305 Conn. at 607–14, 46 A.3d 146, our Supreme Court exercised its supervisory powers to reverse the conviction of a defendant and order a new trial because the trial court had compelled the defendant to wear identifiable prison clothing during his jury trial. In doing so, the Supreme Court eschewed the need to determine whether the trial court's actions constituted structural error or whether the defendant was prejudiced under the circumstances of the case. Similarly, for the reasons we will discuss in this opinion, we conclude that the error in the present case warrants an exercise of our supervisory authority over the due administration of justice, making it unnecessary to decide whether the error is structural in nature.
III
The question of whether the defendant suffered a manifest injustice as a result of the state's improper promise of immunity to Harris is equally as thorny as the question of structural error. Although the state readily concedes that the immunity agreement was improper, it contends that the defendant is not entitled to relief under the plain error doctrine because the defendant cannot establish that he was harmed by the agreement in light of the fact that Harris' testimony did not inculpate the defendant. Specifically, the state argues that Harris' testimony did not harm the defendant because "Harris did not testify that the defendant shot him or Cedeno," but instead "testified that he did not know who shot him because he had been intoxicated during the events and so did not remember them." Thus, in the state's view, the error did not cause grievous consequences to the defendant resulting in manifest injustice to him.
We first note that the state and the defendant disagree about which party bears the burden of persuasion with respect to the question of harm. Citing State v. Fagan , supra, 280 Conn. at 87, 905 A.2d 1101, and State v. Johnson , 178 Conn. App. 490, 496, 179 A.3d 780 (2017), cert. denied, 328 Conn. 905, 178 A.3d 390 (2018), the state contends that, pursuant to the plain error doctrine, the defendant always maintains the burden of establishing that he suffered a manifest injustice because of the error. The defendant asserts that the unlawful immunity agreement violated his constitutional rights and thus the state bears the burden of establishing that the error was harmless beyond a reasonable doubt. According to the defendant, he is entitled to a new trial " ‘if there is any likelihood’ " that Harris' testimony could have affected the verdict. In support of this contention, the defendant relies on cases in which reviewing courts have imposed this high burden on the state because of a prosecutor's knowing use of perjured testimony in obtaining the conviction. See, e.g., Adams v. Commissioner of Correction , 309 Conn. 359, 371–73, 71 A.3d 512 (2013). In addition to the difficulty of deciding which party bears the burden of persuasion on the question of harm; see footnote 13 of this opinion; we note that the issue of whether the defendant was in fact harmed by Harris' testimony is also a difficult one. Because Harris did not identify the defendant as the shooter at trial, his testimony, even if perjurious, should not have been used by the jury as evidence that the defendant was the shooter. It is well established that disbelief of a witness is not the equivalent of proof. State v. Alfonso , 195 Conn. 624, 634, 490 A.2d 75 (1985) ("[w]hile it is true that it is within the province of the jury to accept or reject a [witness'] testimony, a jury in rejecting such testimony cannot conclude that the opposite is true" [internal quotation marks omitted] ). Thus, even if the jury found incredible Harris' testimony that he did not know who shot him, a conclusion that Harris was lying is not substantive evidence that the defendant was the shooter.
Although we ultimately need not decide which party bears the burden of persuasion on this issue, we note that our Supreme Court has suggested that, although a party seeking to prevail pursuant to the plain error doctrine typically is obligated to demonstrate that it suffered a "manifest injustice," the state may still bear the burden of establishing harm if the underlying error was constitutional in nature. See State v. Moore , 293 Conn. 781, 823, 981 A.2d 1030 (2009), cert. denied, 560 U.S. 954, 130 S.Ct. 3386, 177 L.Ed.2d 306 (2010). In Moore , the court concluded that the defendant could not prevail under the plain error doctrine in circumstances in which the trial court failed to caution the jury to scrutinize carefully the testimony of an alleged accomplice. Id., at 827, 981 A.2d 1030. In reaching that conclusion, the court noted that because an instructional error relating to general principles of witness credibility " ‘is not constitutional in nature’ " the burden rested on the defendant rather than the state to demonstrate harm. Id., at 824, 981 A.2d 1030. This language strongly suggests that if the underlying error had been constitutional in nature, then the state would bear its usual burden of demonstrating harm beyond a reasonable doubt.
Adhering to this typical allocation of burden in the context of deciding claims arising under the plain error doctrine makes perfect sense and is not, as the state contends, "doctrinally incongruent." With respect to unpreserved errors arising during a criminal trial, the defendant may seek appellate review and to prevail either under the plain error doctrine or pursuant to State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R ., 317 Conn. 773, 781, 120 A.3d 1188 (2015). If the claim is not of a constitutional nature, the defendant will typically be confined to the plain error doctrine because a party may prevail under Golding only if the claim is of a constitutional nature. If the defendant establishes a violation of a constitutional right, then the state is obligated to demonstrate, pursuant to the fourth prong of Golding , "harmlessness of the ... constitutional violation beyond a reasonable doubt."Id., at 240, 567 A.2d 823. Thus, most claims of plain error historically have not implicated a defendant's constitutional rights because of the availability of Golding review, and thus a defendant would properly bear the burden of establishing harm.
We also recognize that, in assessing whether the error harmed the defendant, his written statement to the police was admitted into evidence. In that statement, the defendant allegedly admitted to the police that he shot Cedeno and Harris, but did so in self-defense. Importantly, however, the defendant substantially challenged the credibility of Detective Early, who obtained the defendant's statement, because of Early's creation of the fabricated written statement of Harris. Moreover, the defendant has raised the additional claim on appeal that the state violated his rights by not disclosing, prior to trial, information regarding an internal affairs investigation of Early that would have yielded further evidence to undermine his credibility.
On the other hand, if the state had been unsuccessful in forcing Harris to take the witness stand, it would never have had the opportunity to impeach him with his prior inconsistent statement to his mother, in which he identified the defendant as the shooter. Although this statement was admitted by the court only to assess the credibility of his testimony at trial that he did not know the identity of the shooter, the state, during closing argument, argued to the jury that it should treat his statement to his mother as substantive evidence that the defendant was the shooter. In other words, the state's improper promise of immunity served as the mechanism to force Harris to testify, which ultimately presented the state an opportunity to place before the jury, albeit improperly, Harris' statement that the defendant was the shooter.
None of the other witnesses at trial testified that the defendant shot Harris and Cedeno.
We do not know the state's precise motive in promising Harris such broad and unlawful immunity. It is conceivable that the state believed that if it could force Harris to testify, he simply would "change his tune" and identify the defendant as the person who shot him and Cedeno. It is also possible that the state was determined to force Harris to take the witness stand in the belief that he would testify, consistently with his prior statement to the police, that he could not identify the shooter or that he could not remember who shot him. This testimony would then permit the state to impeach Harris with his prior inconsistent statement to his mother that the defendant had shot him. Finally, the state simply may have wanted to call Harris to paint him as an obstructionist (as the state argued in closing argument) so that the jury (1) would not be left to speculate as to why the state had failed to call him—an obvious eyewitness to, and victim of, the shooting—at trial, or (2) would not infer that, as a missing witness, his testimony would have been unfavorable to the state. Regardless of the state's motive, however, forcing Harris onto the witness stand was important enough to the state's case against the defendant that the state made considerable efforts to immunize Harris in exchange for his testimony, which it presumably deemed "necessary to the public interest ...." General Statutes § 54-47a. It is incongruous for the state now to minimize the import of Harris' testimony in order to argue that the defendant was not harmed by it.
Again, as with the question of structural error, we find it unnecessary to resolve the difficult and close question of prejudice because we conclude that it is appropriate to exercise our supervisory powers over the administration of justice and to remand the case for a new trial. See State v. Rose , supra, 305 Conn. at 606–607, 46 A.3d 146.
IV
It is well settled that "[a]ppellate courts possess an inherent supervisory authority over the administration of justice." (Internal quotation marks omitted.) State v. Lockhart , 298 Conn. 537, 576, 4 A.3d 1176 (2010) ; see also State v. Rose , supra, 305 Conn. at 607, 46 A.3d 146. "Generally, cases in which we have invoked our supervisory authority for rule making have fallen into two categories.... In the first category are cases wherein we have utilized our supervisory power to articulate a procedural rule as a matter of policy, either as [a] holding or dictum, but without reversing [the underlying judgment] or portions thereof.... In the second category are cases wherein we have utilized our supervisory powers to articulate a rule or otherwise take measures necessary to remedy a perceived injustice with respect to a preserved or unpreserved claim on appeal.... In other words, in the first category of cases we employ only the rule-making power of our supervisory authority; in the second category we employ our rule-making power and our power to reverse a judgment....
"[T]he salient distinction between these two categories of cases is that in one category we afford a remedy and in the other we do not.... In the second category of cases, where we exercise both powers under our supervisory authority, the party must establish that the invocation of our supervisory authority is truly necessary because [o]ur supervisory powers are not a last bastion of hope for every untenable appeal.... In almost all cases, [c]onstitutional, statutory and procedural limitations are generally adequate to protect the rights of the [appellant] and the integrity of the judicial system.... [O]nly in the rare circumstance [in which] these traditional protections are inadequate to ensure the fair and just administration of the courts will we exercise our supervisory authority to reverse a judgment.... In such a circumstance, the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of [the ] utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. " (Citations omitted; emphasis altered; internal quotation marks omitted.) In re Daniel N. , 323 Conn. 640, 646–48, 150 A.3d 657 (2016).
Furthermore, "[a]n appeals court may ... raise the question of whether to use its supervisory powers sua sponte," and "concerns regarding unfair surprise and inadequate argumentation can be alleviated by an order requiring the parties to file supplemental briefs." State v. Elson , 311 Conn. 726, 766, 91 A.3d 862 (2014).
Although "we normally exercise this power with regard to the conduct of judicial actors"; State v. Lockhart , supra, 298 Conn. at 576, 4 A.3d 1176 ; and often have invoked our supervisory authority to mandate "rules intended to guide the lower courts in the administration of justice in all aspects of the criminal process"; (internal quotation marks omitted) State v. Rose , supra, 305 Conn. at 607, 46 A.3d 146 ; we have rejected any arbitrary and categorical limitations on our use of our supervisory authority. Id. We have also invoked this power to reverse criminal convictions tainted by significant prosecutorial impropriety, particularly in instances when "the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper." (Internal quotation marks omitted.) State v. Thompson , 266 Conn. 440, 485, 832 A.2d 626 (2003), quoting State v. Reynolds , 264 Conn. 1, 165, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004). In such cases, our standards for invoking our supervisory powers "are flexible and are to be determined in the interests of justice." (Internal quotation marks omitted.) State v. Payne , 260 Conn. 446, 451, 797 A.2d 1088 (2002). Moreover, reversal of the conviction does not necessarily serve the purpose of remedying any particular harm to the defendant in the case before the court, but ensures that the improper behavior is not repeated in the future. Id. ; State v. Rose , supra, at 611–12, 46 A.3d 146.
Rose is a direct example of the use of supervisory authority to order a new trial even in the absence of a showing that the defendant was harmed by the error or that the error was structural in nature. In Rose , our Supreme Court granted the state's petition for certification to appeal from this court's decision to reverse a criminal conviction in which the trial court had compelled the defendant to appear for trial in identifiable prison clothing. Certification initially was granted as to the following questions: "Did the Appellate Court properly determine that harmless error analysis does not apply where the trial court has compelled the defendant to appear before a jury in identifiable prison garb? If not, was the defendant's appearance before the jury in identifiable prison garb harmless beyond a reasonable doubt?" State v. Rose , 290 Conn. 920, 966 A.2d 238 (2009).
After hearing argument, the court asked the parties to file supplemental briefs addressing "[w]hether this court should affirm the judgment of the Appellate Court on the [alternative] ground that reversal of the defendant's conviction is warranted in the exercise of this court's inherent supervisory authority over the administration of justice." (Internal quotation marks omitted.) State v. Rose , supra, 305 Conn. at 604–605, 46 A.3d 146. The state argued that, if the court exercised its supervisory authority, it should do so only to issue a prospective rule and that it should reinstate the defendant's conviction. Id., at 605, 4 A.3d 1176.
The Supreme Court, however, elected to exercise its supervisory authority to reverse the defendant's conviction and order a new trial, and declined to reach the issue of whether the defendant had suffered any prejudicial harm. The court stated: "Because we decide this case on the basis of our supervisory authority, we need not resolve the issue of whether a trial court's constitutionally erroneous decision to compel a defendant to stand trial before a jury in identifiable prison clothing is susceptible to harmless error analysis, as the state claims, or instead amounts to structural error, as the defendant contends and as the Appellate Court apparently concluded." Id., at 606, 4 A.3d 1176. Similar to the present case, the court chose to use its supervisory authority to order a new trial while avoiding the need to determine whether the error that occurred resulted in harm to the particular defendant. "Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole ." (Emphasis added; internal quotation marks omitted.) Id., at 607, 4 A.3d 1176.
Likewise, in State v. Payne , supra, 260 Conn. at 446, 797 A.2d 1088, our Supreme Court reversed a criminal conviction, holding that a new trial was warranted because of the prosecutor's repeated and deliberate misconduct during closing argument, which included appealing to the jury's emotions and improperly vouching for a prosecution witness' credibility. Although the court concluded that the prosecutor's misconduct did not violate the defendant's right to a fair trial in that particular case, it nonetheless exercised its supervisory authority "in order to protect the rights of defendants and to maintain standards among prosecutors throughout the judicial system rather than to redress the unfairness of a particular trial" and "to send a strong message that such conduct will not be tolerated." (Internal quotation marks omitted.) Id., at 452, 797 A.2d 1088. Although the court in Payne identified a pattern of misconduct by the prosecutor spanning several cases, and stated that this pattern of misconduct was a significant factor in its decision to exercise its supervisory authority, it did not expressly hold that such a pattern of misconduct was a necessary requirement to the exercise of our supervisory powers. Moreover, any attempt to read such a requirement into its holding would thwart the standard it set forth, namely, that our supervisory powers must be flexible and that their application must be determined by the interest of justice. Id., at 451, 797 A.2d 1088 ; see also State v. Rose , supra, 305 Conn. at 607, 46 A.3d 146.
In the present case, we conclude that it is appropriate to exercise our supervisory powers over the administration of justice and to remand this case for a new trial for several reasons. First, the improper immunity agreement directly implicates the perception of the integrity of our justice system. The improper immunity agreement, which plainly violates our public policy, gave Harris a license to commit perjury. Historically, perjury has been characterized as a crime against the due administration of justice . In fact, § 53a-156 (a), which criminalizes perjury, is codified at part XI of chapter 952 in our Penal Code, which is titled: "Bribery, Offenses Against the Administration of Justice and Other Related Offenses." As one legal scholar has written: "In time perjury developed into a [crime] ... including everything which has a tendency to injuriously affect the administration of justice by the introduction of falsehood and fraud.... [T]he gist of the offense is the abuse of public justice, and not the injury to an individual. It does not matter whether the false oath was believed or disbelieved, or whether it caused any injury to the person against whom it was given ." (Emphasis added; footnotes omitted; internal quotation marks omitted.) H. Silving, " The Oath: I," 68 Yale L.J. 1329, 1388 (1959).
Second, as discussed previously, the existence of the sanction for perjury plays a critical role in the truth seeking process and helps to secure the defendant's right to confront the witnesses against him. Maryland v. Craig , supra, 497 U.S. at 845–46, 110 S.Ct. 3157 ; Cologne v. Westfarms Associates , supra, 197 Conn. at 153, 496 A.2d 476. It is difficult to imagine an error that strikes more directly at the truth seeking process that is at the core of our judicial system than an agreement, implicitly endorsed by the court, that permits a witness to testify with a license to lie.
Third, the reversal of the conviction will help to ensure that such an unlawful promise will not be made by prosecutors in the future. In this case, there can be no doubt that the prosecutor knew that such an immunity agreement was prohibited by § 54-47a because the statute is cited in the immunity agreement that was formally filed with the trial court. That knowledge, by itself, was insufficient to deter the state from promising Harris a form of immunity plainly prohibited by the statute. The decision to offer such an unlawful promise was not made in the heat of battle, like a brief improper remark during closing argument, but was reached as part of an extensive negotiation between the state and Harris' attorney that occurred over parts of at least two days.
It is true, as the state contends, that there does not appear to be a record of repeated instances of impropriety by this prosecutor in other cases. Nevertheless, we reject the state's assertion that we should not exercise our supervisory powers because the impropriety in this case was not deliberate and the prosecutor in this case has not engaged in repeated instances of prosecutorial impropriety in other cases.
First, we are not exercising our supervisory powers in this case merely because of prosecutorial impropriety. Indeed, a large measure of our decision to do so is a result of the trial court's unwillingness to prohibit the arrangement entered into between the state and Harris. The trial court certainly appeared to recognize that the immunity agreement was improper when it stated on the record that the agreement was "probably against the public interest, but I didn't step in." Moreover, in our view, the prosecutor knew, or certainly should have known, that the agreement was unlawful. The need to obtain immunity for Harris was discussed during trial, and, in fact, a continuance was granted in order to allow the state to work out an immunity agreement. The prosecutor filed an immunity agreement with the court, which included a citation to § 54-47a, which he presumably had read. A review of that statute's plain language should have alerted the prosecutor that the scope of the immunity deal he offered to Harris at trial exceeded the authority provided for under the statute.
Fourth, the exercise of our supervisory authority is also necessary to send a clear message to our trial courts that they have an affirmative obligation to intercede in circumstances where it appears that the state has offered a witness a license to lie during the trial. Indeed, the trial court here realized that the agreement violated public policy and believed that the witness was committing perjury but did nothing to prevent it.
Finally, it is important to remember that the ability to grant immunity to a witness is a power that belongs only to the state and is not shared by the defendant. The defendant cannot compel witnesses who have concerns about exposing themselves to criminal liability to testify, even if the defendant believes that their testimony may be exculpatory to him. Thus, it is important that courts confine the state's use of this significant prosecutorial power to appropriate instances that do not further and unfairly disadvantage a defendant.
The state objects to this court exercising its supervisory authority to reverse the defendant's conviction for several reasons. The state contends that it is "unclear" whether the Appellate Court even has the authority to exercise supervisory powers over the administration of justice. The state also argues that this court should not exercise this power sua sponte because the defendant, in essence, through his inaction, waived any challenge to the improper immunity agreement. Finally, the state asserts that the balancing of all of the interests in this case militates against the use of our supervisory powers. We disagree with each of these assertions.
First, this court disagrees with the state that the Appellate Court lacks supervisory power over the administration of justice. Our Supreme Court, in referring to the supervisory power over the administration of justice, has repeatedly stated that "[a]ppellate courts" possess that power, not just our Supreme Court itself. See, e.g., State v. Elson , supra, 311 Conn. at 768, 91 A.3d 862 ; State v. Lockhart , supra, 298 Conn. at 576, 4 A.3d 1176. More significantly, this court has exercised such powers in the past. See State v. Santiago , 143 Conn. App. 26, 48–51, 66 A.3d 520 (2013) (exercising supervisory authority to reverse conviction). Although our review of briefs filed by the state in recent appeals reveals that the state repeatedly has taken the position that this court should not exercise its supervisory powers when requested to do so for prudential reasons in a variety of contexts; see, e.g., State v. Dijmarescu , 182 Conn. App. 135, 158, 189 A.3d 111, cert. denied, 329 Conn. 912, 186 A.3d 707 (2018) ; State v. Castillo , 165 Conn. App. 703, 729, 140 A.3d 301 (2016), aff'd, 329 Conn. 311, 186 A.3d 672 (2018) ; State v. Fuller, 158 Conn. App. 378, 391, 119 A.3d 589 (2015) ; our research has not revealed any case in which our authority to do so has been challenged. We also reject the state's argument that our Supreme Court's recent decision in State v. Castillo , 329 Conn. 311, 334–35, 335 n.11, 186 A.3d 672 (2018), has raised doubt about this court's supervisory powers. In Castillo , the Supreme Court was never asked to address the existence or scope of the Appellate Court's supervisory authority, and any language employed by the court in a footnote explaining why it had reformulated the third certified question in that case is simply taken out of context. See id., at 335 n.11, 186 A.3d 672. Second, we are not persuaded by the state's assertion that it is improper to exercise our supervisory powers sua sponte because the defendant waived any challenge to the illegal immunity agreement by remaining silent during the colloquy among the court, the state, and Harris' attorney. Although the trial judge remarked during this initial colloquy that in his forty-two and one-half years of experience in the criminal justice system, he had "never heard of anybody getting that agreement," the defendant simply failed to object to Harris' testimony. We are not convinced, however, that the defendant's failure to challenge the propriety of the immunity agreement was due to a conscious trial strategy that amounts to a tactical waiver. Nothing in the record before us supports such a conclusion. Although, as indicated, defense counsel was present for the discussions about Harris' immunity agreement with the state, and voiced no objection to the agreement despite the court's skeptical response, we would have to resort to impermissible speculation to determine that defense counsel's inaction was the result of tactical calculation rather than inadvertence. Indeed, the defendant had no way to know with certainty that Harris' testimony would be favorable to him. Although the defendant may have hoped that Harris would not implicate him in the shooting and would disavow or explain away the recorded statement to his mother, it was also possible that, with the broad grant of immunity, Harris might feel free to implicate the defendant as the shooter. Furthermore, although the defendant cross-examined Harris about his inability to identify anyone on the surveillance videotape and relied to some degree on Harris' testimony during his closing argument, defense counsel did not go to such lengths to exploit Harris' testimony as to suggest a tactical waiver. The state, moreover, seems to confound the issue of implied waiver with a mere failure to object. Ordinarily, some affirmative action on the part of a defendant is needed before an appellate court will conclude that a defendant waived his right to seek appellate review. For example, by voluntarily and knowingly entering a guilty plea, a defendant waives his right to raise any nonjurisdictional claims of error. See, e.g., Savage v. Commissioner of Correction , 122 Conn. App. 800, 802–803, 998 A.2d 1247 (2010). The court did not ask the defendant for input as to the propriety of the agreement, and the defendant took no affirmative position on the agreement that could be construed as an express or implied waiver of his right to challenge it. Except in the limited circumstances of challenges to jury instructions; see State v. Kitchens , 299 Conn. 447, 469–70, 10 A.3d 942 (2011) ; we have not treated a defendant's inaction or failure to object to constitute an implied waiver that precludes the opportunity for appellate review. Indeed, even in that context, the Supreme Court has indicated that a defendant still may be entitled to relief on an unpreserved claim of instructional error pursuant to the plain error doctrine. State v. McClain , 324 Conn. 802, 808, 155 A.3d 209 (2017).
The state in Santiago did not challenge our authority to exercise supervisory powers over the administration of justice. It also did not seek certification to appeal to our Supreme Court to challenge our decision on that basis.
Footnote 11 of the majority opinion in State v. Castillo , supra, 329 Conn. at 311, 186 A.3d 672, states: "A narrow and literal interpretation of the certified issue as limited to the question of whether the Appellate Court properly declined to exercise any authority it may have to issue the requested prophylactic rule would yield the bizarre result that if this court agreed with the defendant, it would remand the case to the Appellate Court with direction to exercise such supervisory authority. That narrow reading would constitute an improper abdication of this court's duty and authority over the administration of justice." Id., at 335 n.11, 186 A.3d 672.
Accordingly, we reject the state's contention that the defendant's inaction at trial regarding the unlawful immunity agreement prevents us from exercising our supervisory power to remedy such an egregious error on appeal.
Finally, we are mindful, of course, as the state notes, that "our supervisory authority is not a form of free-floating justice, untethered to legal principle." (Internal quotation marks omitted.) State v. Pouncey , 241 Conn. 802, 813, 699 A.2d 901 (1997). Our Supreme Court has cautioned that, before we exercise our supervisory powers to reverse a criminal conviction, we must consider and balance all interests involved, including "the extent of prejudice to the defendant; the emotional trauma to the victims or others likely to result from reliving their experiences at a new trial; the practical problems of memory loss and unavailability of witnesses after much time has elapsed; and the availability of other sanctions for such misconduct." (Internal quotation marks omitted.) Id. Having considered these and other factors raised by the state, we are unconvinced that, on balance, they require us not to exercise our supervisory authority under the present circumstances.
First, as we already discussed in detail in part III of this opinion, there is a strong argument that the defendant was unfairly prejudiced by the illegal grant of immunity to Harris. The state's improper immunization of Harris served as the mechanism to force Harris to testify, which allowed the state to introduce to the jury Harris' prior statement identifying the defendant as the shooter. The impact on the defendant was then compounded by the state's improper use of the statement as substantive evidence during closing arguments.
Second, the potential that a new trial would result in significant "emotional trauma to the victims," as claimed by the state, seems unlikely. Certainly, both Harris and Cedeno suffered serious injuries in this case. Retrial of this case, however, will not involve the viewing of graphic and disturbing crime scene or autopsy photographs as one might expect in a more serious homicide case. Nor will a retrial require anyone to describe details of a highly personal nature, as in cases involving a sexual assault. It also does not involve a particularly sensitive victim such as a child. Further, Harris and Cedeno's claimed lack of memory of the events and their purported reluctance to aid authorities in bringing their assailant to justice undermines any assertion that a retrial would result in any grave emotional retraumatization to them.Third, although practical problems like memory loss and the unavailability of witnesses can arise any time there is a new trial, such risks are not of particular concern in the present case. The assaults at issue occurred in 2013, not in the distant past. This case does not turn on the testimony of eyewitnesses whose memories are likely to have faded with the passage of time. Neither Cedeno nor Harris was able to provide useful details as to the night they were shot. Harris, in fact, claimed that he was unable to remember any of the events of that night due to intoxication. Such an utter lack of recollection is not likely to worsen over time. Additionally, although it certainly is possible that a witness might be unavailable for a retrial, there is nothing in the record to suggest that any witness has died or left the jurisdiction of the state.
Finally, as we have discussed in part I of this opinion, the state's impropriety in immunizing Harris for future perjury, which the trial court expressly recognized but failed to prevent, violated public policy and undermines confidence in our judicial system. Although we recognize that reversal of a conviction is a remedy that should be invoked sparingly, we do not believe another viable solution exists here. The state has not made us aware of the availability of any other sanction, short of reversal, that will ensure that the egregious error that occurred in this case will not be repeated in the future.
The judgment is reversed and the case is remanded for a new trial.
In this opinion SHELDON, J., concurred.
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 process rights were violated when the state failed to disclose 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 witness, including any lies and falsehoods that would constitute 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 conviction and award him a new trial.
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.
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 implementation 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 conviction on the ground that the trial court's acceptance and implementation of the agreement for the illegal and improper immunization of Harris' anticipated testimony, including any testimony that would constitute the crime of perjury, constituted plain error that was structural error in the context of the defendant's criminal trial.
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.
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 violated his rights to due process and a fair trial when he committed several improprieties during closing argument. Specifically, the defendant claims that the prosecutor improperly (1) denigrated defense counsel; (2) asked the jury to use impeachment evidence substantively; (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 purported 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. Golding , 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 quotation 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.... Second, 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 fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a due process violation 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 prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.... Nevertheless, the prosecutor has a 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 innocent.... 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 closing argument. Specifically, he claims that the prosecutor'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 standard 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 theory of defense....
"Closing arguments of counsel ... are seldom carefully 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 omitted; internal quotation marks omitted.) State v. Fasanelli , 163 Conn. App. 170, 180, 133 A.3d 921 (2016).
In Fasanelli , the defendant argued "that the prosecutor improperly denigrated defense counsel by implying that defense counsel was being deceitful and using standard defense tactics" during his closing argument Id., at 181, 133 A.3d 921. This court concluded, however, that the challenged comments, when read in context, "did not attack defense counsel; rather, each of the challenged comments attacked the theory of the defendant ...." Id., at 182, 133 A.3d 921. 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 following 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 prosecutor's comments were directed to defense counsel's attempts during trial to attack the credibility of the Hartford police, particularly, Detective Early's testimony regarding the manner in which he secured the defendant's confession. The defendant's apparent theory was that, because Early had secured the defendant's confession by using a fabricated confession from Harris, 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 accordance with its usual policy. Some of Harris' statements were admitted by the court as prior inconsistent statements 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 everything [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 defendant ] 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] Hartford 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." (Emphasis added.)
Our Supreme Court has adopted a rule "allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies 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., at 754, 513 A.2d 86. In the years following Whelan , our Supreme Court has recognized that "the general rationale of Whelan concerning 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 omitted.) 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." (Internal 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 incorporated 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 statement 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 knowledge 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 statements. See State v. Woodson , supra, 227 Conn. at 19, 629 A.2d 386. Subsequently, 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., at 23, 629 A.2d 386. In the present 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. Moreover, 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 evidence. 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 Cedeno, 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 opinion 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 therefrom .... 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. at 185–86, 133 A.3d 921.
During his initial closing argument, the prosecutor made the following comments: "You can listen back to George Harris' testimony. It was painful. He would listen 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 addition, during his initial closing argument, the prosecutor stated: "But again, the problem is, [the police] are dealing 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 testimony 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 defendant 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., at 585, 849 A.2d 626 ("[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, therefore, 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 common knowledge or their own observations and experiences, 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." (Citation 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 quotation marks omitted.) State v. Barry A. , supra, 145 Conn. App. at 605, 76 A.3d 211.
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 intentionally and with extreme indifference to human life fired it in a residential neighborhood. A community, regardless of a person's ethnic or economic background, 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 referring to Harris and Cedeno as obstructionists were not improper because they were appropriately based on evidence adduced during trial. Moreover, the prosecutor'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 general 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 indicated that only guilty verdict would protect legal system), and State v. Santiago , supra, 143 Conn. App. at 41–42, 66 A.3d 520 (prosecutor improperly appealed to emotions of jurors where he urged them to decide case on basis of sympathy 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 defendant nor painted victim as particularly vulnerable or deserving of sympathy, but instead was based on evidence 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 conviction a denial of due process" must be examined. (Internal 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 jurisdictions, 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 measures adopted ... and the strength of the state's case." (Citations omitted.) Id., at 540, 529 A.2d 653. "[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. at 563, 34 A.3d 370.
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 argument and not in response to statements that defense counsel made in his closing argument. Thus, these comments 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 statement 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 prosecutor's references regarding the identification of the defendant in Harris' prior inconsistent statements occurred only during the prosecutor's initial summation. 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 constituted only a small portion of, closing and rebuttal argument, 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). Accordingly, the frequency factor favors the state.
As to the sufficiency of curative measures taken by the court, the court provided jury instructions indicating 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 omitted.) State v. Thompson , supra, 266 Conn. at 485, 832 A.2d 626.
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. at 483, 832 A.2d 626. As such, the defendant's failure to object to the prosecutor'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., at 479–80, 832 A.2d 626 ("[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, presumably [did] not view the alleged impropriety as prejudicial 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 statements 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., at 480, 832 A.2d 626 ("[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. at 700, 95 A.3d 1208 (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 Detective 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 prosecutor had properly impeached Harris' credibility by presenting 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 prosecutor's improper substantive use of Harris' prior inconsistent 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 violation 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 Department 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 investigation 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 investigation.
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 Hartford 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 augmentation 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 concessions. 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 prosecution'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 establish: (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., at 689, 155 A.3d 772.In the present case, the state has conceded that the internal affairs report was "suppressed within the meaning 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 assessment of the credibility of a significant prosecution witness." (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 Evidence 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 untruthfulness." 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. Commissioner 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 credibility 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 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 .... 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 material 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 probability 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 probability of a different result is accordingly shown when the government's evidentiary suppression undermines confidence in the outcome of the trial." (Internal quotation marks omitted.) Adams v. Commissioner of Correction , supra, 309 Conn. at 370–71, 71 A.3d 512.
In the present case, the defendant argues that the internal affairs report was material because Early's testimony 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 purposes 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 defendant 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. at 160, 10 A.3d 578 ("[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 omitted.] ). As previously set forth, Early's credibility had been impeached during his cross-examination when the defense questioned him regarding his admitted fabrication of Harris' purported confession, which, in turn, led to the defendant's confession. See Morant v. Commissioner 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 evidence contained in the report was at best cumulative concerning Early's credibility, the internal affairs report was not material within the meaning of Brady . Accordingly, 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. The defendant further argues that this improper grant of immunity constitutes structural error that obviates 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.
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 conviction obtained by the knowing use of perjured testimony is fundamentally unfair. Adams v. Commissioner of Correction , supra, 309 Conn. at 371–73, 71 A.3d 512 ; 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 fundamental 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, at 576–77, 96 S.Ct. 1768." (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.
The state concedes that its promise not to prosecute Harris for perjury in connection with his upcoming testimony was a defective and improper grant of immunity that was inconsistent with Harris' duty to testify truthfully. 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 consequences 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, including 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 Harris' immunized testimony before the jury that was permitted 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 constitutional, 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 derivative 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 testimony today.
"[The Prosecutor]: That's correct, Your Honor.
"[The Court]: Okay. Well, [counsel], I must compliment 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 following 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 actually offends me."
"[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary
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...."
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 determination clearly requires a review of the plain error claim presented in light of the record. Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient 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 examining 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 demonstrated that the failure to grant relief will result in manifest injustice.... [Previously], we described the two-pronged nature of the plain error doctrine: [An appellant] 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 reversibility. 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." (Citations
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 judgment 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, at 814, 155 A.3d 209.
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 omitted; internal quotation marks omitted.) Weaver v. Massachusetts , ––– U.S. ––––, 137 S.Ct. 1899, 1907–1908, 198 L.Ed.2d 420 (2017). As such, a trial is affected by structural error when "the error always results in fundamental unfairness." (Internal quotation marks omitted.) State v. Cushard , 328 Conn. 558, 570, 181 A.3d 74 (2018).
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. Wainwright , 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. at 1908.
Although structural error most commonly occurs in the violation of a constitutional right; see Weaver v. Massachusetts , supra, 137 S.Ct. at 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 previously 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, at 498, 757 A.2d 578. 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. at 570, 180 A.3d 882.
Because structural error may occur in the form of a statutory violation, structural error analysis is warranted 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., at 578. Under both § 54-47a (b) 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 concedes 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.
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.)
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). Moreover, 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 entitlement to assume that each witness is providing testimony 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. 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 impropriety 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.
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 quotation marks omitted.] ).
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 testimony as a basis to put Harris' prior inconsistent statements in front of the jury, initially to impeach his credibility. The state, however, subsequently and in violation 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 anticipated would include perjury; see footnote 2 of this concurring 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 defendant in a way that substantively corroborated the statements 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 integrity of and public confidence in the judicial proceedings. See State v. McClain , supra, 324 Conn. at 812–14, 155 A.3d 209. 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, conclude that we do not need to exercise our supervisory authority to do so.
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.