State v. Stephenson ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. JOSEPH A.
STEPHENSON
(SC 20272)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn, Ecker and Keller, Js.
Syllabus
Convicted of burglary in the third degree, attempt to commit tampering
with physical evidence, and attempt to commit arson in the second
degree in connection with a break-in at a courthouse in Norwalk, the
defendant appealed to the Appellate Court. The defendant had entered
the office of two assistant state’s attorneys located in the courthouse
by breaking a window. One of those attorneys was scheduled to begin
jury selection for a criminal trial against the defendant two days after
the break-in occurred. Immediately after the break-in, various case files
were discovered in a state of disarray in a common area located outside
of the attorneys’ office, and the police found a bag containing bottles
of kerosene nearby. On appeal to the Appellate Court, the defendant
claimed, inter alia, that the evidence was insufficient to allow a reason-
able inference that the defendant believed that the case files for his
criminal case that were found in disarray contained ‘‘evidence,’’ as that
term was used in the broader definition of ‘‘physical evidence,’’ as
defined by statute (§ 53a-146 (8)). The Appellate Court reversed the
trial court’s judgment, albeit on the alternative ground that there was
insufficient evidence for the jury to have reasonably concluded that the
defendant intended to tamper with any case files or their contents. The
Appellate Court expressly recognized that this issue was distinct from
the defendant’s sufficiency argument relating to the scope of items
subject to the prohibition contained in the statute (§ 53a-155) under
which the defendant was charged in connection with his alleged attempt
to tamper with physical evidence. On the granting of certification, the
state appealed to this court. Held that the Appellate Court improperly
addressed, sua sponte, an issue of evidentiary sufficiency that was dis-
tinct from the defendant’s claim, without calling for supplemental brief-
ing as required by Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc. (311 Conn. 123): the defendant never raised
the particular claim of evidentiary sufficiency the Appellate Court
addressed, and, because the sufficiency of the evidence on the question
of identity was not challenged, the state had no occasion to brief the
issue of whether it had established a connection between the defendant’s
conduct and the case files found in disarray; moreover, because the
sufficiency claim raised by the defendant challenged only whether the
jury could have reasonably inferred that his case files contained physical
evidence covered by § 53a-155, the state was never called on to apply
a sufficiency standard to the distinct issue that the Appellate Court
resolved, that is, whether the defendant had intended to alter, remove,
conceal or destroy the case files; accordingly, because the Appellate
Court failed to afford the parties an opportunity to brief or argue the
issue that ultimately proved to be dispositive in that court’s analysis,
its reversal of the trial court’s judgment of conviction was improper.
Argued September 9—officially released December 18, 2020*
Procedural History
Substitute information charging the defendant with
the crimes of burglary in the third degree, attempt to
commit tampering with physical evidence, and attempt
to commit arson in the second degree, brought to the
Superior Court in the judicial district of Stamford-Nor-
walk, geographical area number twenty, and tried to
the jury before White, J.; verdict and judgment of guilty,
from which the defendant appealed to the Appellate
Court, Sheldon, Bright and Mihalakos, Js., which
reversed the trial court’s judgment and remanded the
case to that court with direction to render a judgment
of acquittal; thereafter, the state, on the granting of cer-
tification, appealed to this court. Reversed; further pro-
ceedings.
Sarah Hanna, senior assistant state’s attorney, with
whom, on the brief, were Richard Colangelo, chief
state’s attorney, Paul J. Ferencek, state’s attorney, and
Michelle Manning, senior assistant state’s attorney, for
the appellant (state).
Vishal K. Garg, for the appellee (defendant).
Opinion
KAHN, J. The state, on the granting of certification,
appeals from the judgment of the Appellate Court, which
reversed the judgment of the trial court convicting the
defendant, Joseph A. Stephenson, of the crimes of bur-
glary in the third degree, attempt to commit tampering
with physical evidence, and attempt to commit arson
in the second degree in connection with a break-in at
the Superior Court for the judicial district of Stamford-
Norwalk, geographical area number twenty, which is
located in Norwalk. See State v. Stephenson, 187 Conn.
App. 20, 39, 201 A.3d 427 (2019). The state claims, inter
alia, that the Appellate Court improperly addressed an
issue of evidentiary sufficiency sua sponte without call-
ing for supplemental briefing as required by Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Con-
necticut, Inc., 311 Conn. 123, 84 A.3d 840 (2014)
(Blumberg). We agree and, accordingly, reverse the
judgment of the Appellate Court.
The following facts and procedural history are rele-
vant to our resolution of the present appeal. A silent
alarm at the courthouse was triggered at around 11 p.m.
on Sunday, March 3, 2013, when the defendant entered
the state’s attorney’s office by breaking a window on
the building’s eastern side.1 Although the police were
able to respond in about ninety seconds, the defendant
successfully evaded capture by running out of a door on
the building’s southern side. Footage from surveillance
cameras introduced by the state at trial show that the
defendant was inside of the building for slightly more
than three minutes. In the investigation that followed,
the police determined that the broken window belonged
to an office shared by two assistant state’s attorneys. One
of those attorneys was scheduled to commence jury
selection for a criminal trial against the defendant on
certain felony charges only two days after the break-in
occurred. No other cases were scheduled to begin jury
selection that week. Immediately after the break-in,
various case files were discovered in an apparent state
of disarray at the northern end of a central, common
area located outside of that room. Specifically, several
files were found sitting askew on top of a desk with
two open drawers; still other files were scattered on the
floor below in an area adjacent to a horizontal filing
cabinet containing similar files. Photographs admitted
as full exhibits clearly show labels on these files read-
ing ‘‘TUL’’ and ‘‘SUM.’’ Finally, in a short hallway at the
opposite end of that same common area, the police found
a black bag containing six bottles of industrial strength
kerosene with their UPC labels cut off. The bag and
its contents were swabbed, and a report subsequently
generated by the Connecticut Forensic Science Labora-
tory included the defendant’s genetic profile as a con-
tributor to a mixture of DNA discovered as a result.
Various other components of the state’s case against
the defendant warrant only a brief summary. The day
after the break-in, the defendant called the public
defender’s office at the Norwalk courthouse to ask
whether the courthouse was open and whether he was
required to come in that day. The state also submitted
evidence showing that the defendant drove a 2002 Land
Rover Freelander with an aftermarket push bumper, a
roof rack, and a broken taillight, and that surveillance
videos from the area showed a similar vehicle driving
by the courthouse repeatedly in the hours leading up
to the break-in. Finally, the state submitted recordings
of various telephone calls the defendant made after he
had been taken into custody as a result of his conviction
on the criminal charges previously pending against him
in Norwalk. During one such telephone call, the defen-
dant asked his brother, Christopher Stephenson, to get
rid of ‘‘bottles of things’’ for a heater, speculated about
how the police located the vehicle, and attempted to
arrange an alibi.
The defendant was tried before a jury on charges
of burglary in the third degree in violation of General
Statutes § 53a-103, attempt to commit tampering with
physical evidence in violation of General Statutes § 53a-
49 (a) (2) and General Statutes (Rev. to 2013) § 53a-
155 (a) (1), and attempt to commit arson in the second
degree in violation of General Statutes §§ 53a-49 (a) (2)
and 53a-112 (a) (1) (B). The jury returned a verdict
finding the defendant guilty of each of these offenses,
and the trial court subsequently rendered a judgment in
accordance with that verdict.
The defendant appealed from that judgment to the
Appellate Court, raising several distinct claims of error.2
In the final three pages of his principal brief to that court,
the defendant raised the following single, relatively nar-
row claim relating to the sufficiency of the state’s proof
with respect to the charge that he attempted to tamper
with physical evidence: ‘‘The state failed to show that
any materials in the state’s attorney’s case file for the
defendant’s criminal case constituted ‘evidence’ as
defined by [General Statutes] § 53a-146 (8); the evidence
was insufficient to allow a reasonable inference that
the defendant believed the file contained evidence.’’
(Emphasis added.) This claim challenged the judgment
of conviction by arguing that, even if the defendant did
rummage through the case files that evening, certain
evidentiary deficiencies left the jury to ‘‘speculate’’ that
he had acted with an intent to tamper with a particular
type of document—namely, that within the ambit of
§ 53a-155 (a) (1).3 Put differently, the defendant con-
tended that the state had failed to submit adequate
proof to allow reasonable inferences about the precise
nature of the items contained within his case files. The
state responded to this argument by briefing issues of
statutory construction relating to the meaning of §§ 53a-
146 (8) and 53a-155.
The Appellate Court ultimately reversed the trial
court’s judgment on a different ground, based on its
conclusion that there was insufficient evidence for the
jury to have reasonably concluded that the defendant
intended to tamper with any case files or their contents
at all. See State v. Stephenson, supra, 187 Conn. App. 39.
Specifically, the Appellate Court framed the dispositive
question before it as whether the evidence ‘‘was insuffi-
cient to prove that [the defendant] . . . acted with the
intent to tamper with physical evidence within the
courthouse because the state failed to establish any
connection between his proven conduct within the
courthouse and any of the files or materials with which
he is claimed to have had the intent to tamper.’’ (Empha-
sis added.) Id., 34. The Appellate Court answered that
question in the affirmative, concluding that the ‘‘single
fact’’ that there was ‘‘a disorganized pile of files on the
floor’’ was ‘‘insufficient for the jury to infer that the
defendant ever touched any case files in the state’s
attorney’s office . . . let alone pulled case files out of
any file cabinet or off any desk, shelf or table, or that
he went through such files for any purpose, much less
that he took any steps to alter, remove, conceal or
destroy the files or their contents as or after he went
through them.’’4 Id., 35–36. In reaching its decision, the
Appellate Court expressly recognized that the issue was
distinct from the defendant’s sufficiency argument
relating to the scope of items subject to the prohibition
contained in § 53a-155. Id., 30 n.4.
In Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 311 Conn. 128, this
court concluded, ‘‘with respect to the propriety of a
reviewing court raising and deciding an issue that the
parties themselves have not raised, that the reviewing
court (1) must do so when that issue implicates the
court’s subject matter jurisdiction, and (2) has the dis-
cretion to do so if (a) exceptional circumstances exist
that would justify review of such an issue if raised by
a party, (b) the parties are given an opportunity to be
heard on the issue, and (c) there is no unfair prejudice
to the party against whom the issue is to be decided.’’
The state claims that the Appellate Court’s decision in
the present case violated this mandate by raising a dif-
ferent claim of evidentiary sufficiency sua sponte, with-
out calling for supplemental briefing from the parties.
For the reasons that follow, we agree.
We note at the outset that, although this court applies
an abuse of discretion standard to the question of
whether the Appellate Court properly addressed an
issue that was never raised by the parties; see Diaz v.
Commissioner of Correction, 335 Conn. 53, 58, 225
A.3d 953 (2020); we engage in plenary review as to the
predicate question of whether a particular claim of error
was, in fact, raised during the course of a prior appeal.
See, e.g., State v. Connor, 321 Conn. 350, 363, 138 A.3d
265 (2016).
Our review in the present case indicates that the
defendant never raised the particular claim of eviden-
tiary sufficiency addressed by the Appellate Court.
First, the defendant’s own recitation of the facts in his
principal brief to the Appellate Court affirmatively
stated the following: ‘‘[T]he jury reasonably could have
found the following facts concerning a break-in at the
Norwalk courthouse. . . . While inside, the perpetra-
tor removed files from a file cabinet, which were found
scattered on the floor near the state’s attorney’s secre-
tary’s desk.’’ Because the sufficiency of the evidence
on the question of identity was not challenged; see State
v. Stephenson, supra, 187 Conn. App. 30, 34; the state
simply had no occasion to brief the question of whether
it had established a ‘‘connection’’ between the defen-
dant’s ‘‘proven conduct’’ and the case files found scat-
tered on the floor. Second, because the sufficiency
claim raised by the defendant challenged only whether
the jury could have reasonably inferred that his case
files contained physical evidence protected by § 53a-
155, the state was never called upon to apply a suffi-
ciency standard to the distinct question, raised by the
Appellate Court, of whether the defendant had, in the
first instance, intended to ‘‘alter, remove, conceal or
destroy’’ the case files at all.
It is, of course, beyond question that the Appellate
Court possesses discretion to raise issues pertaining to
the sufficiency of evidence sua sponte. See, e.g., Blum-
berg Associates Worldwide, Inc. v. Brown & Brown of
Connecticut, Inc., supra, 311 Conn. 128. It is equally well
established, however, that it may do so only after pro-
viding the parties with a meaningful opportunity to
address the question through supplemental briefing.
See, e.g., State v. Dort, 315 Conn. 151, 161, 106 A.3d
277 (2014) (‘‘[i]f the Appellate Court decides to address
an issue not previously raised or briefed, it may do
so only after requesting supplemental briefs from the
parties or allowing argument regarding that issue’’
(internal quotation marks omitted)); Haynes v. Middle-
town, 306 Conn. 471, 474, 50 A.3d 880 (2012) (same).
Because the Appellate Court failed to afford the parties
an opportunity to brief or argue the issue that ultimately
proved to be dispositive in its analysis, its reversal of
the trial court’s judgment of conviction was improper.
We find the defendant’s arguments to the contrary in
the present appeal to be unpersuasive. First, the defen-
dant posits that the Appellate Court was not required
to call for supplemental briefing because it merely
adopted a separate line of legal reasoning. See Finkle
v. Carroll, 315 Conn. 821, 837 n.14, 110 A.3d 387 (2015)
(concluding that supplemental briefing was not
required under Blumberg for ‘‘an amplification and logi-
cal extension of the defendants’ argument’’). The evi-
dentiary deficiency analyzed in the Appellate Court’s
decision was conceptually distinct from the one pur-
sued by the defendant in his brief to that court. Speci-
fically, the Appellate Court concluded that the state’s
proof was insufficient for the jury to have reasonably
concluded that the defendant’s conduct was connected
to the files scattered at the northern end of the office
or that, even if he did physically disturb those files, he
had ultimately intended to tamper with them within the
meaning of § 53a-155. See State v. Stephenson, supra,
187 Conn. App. 39. The defendant, however, only claimed
that the evidence admitted at trial was insufficient for
the jury to make reasonable inferences about the con-
tents of his case files. Although both of these issues
relate, at the broadest level, to the question of whether
the defendant intended to tamper with physical evi-
dence, the claims address distinct evidentiary deficienc-
ies. Cf. State v. Connor, supra, 321 Conn. 368.
Second, the defendant argues that the Appellate
Court was not required to call for supplemental briefing
because the dispositive claim was preserved at trial.
Our case law reveals that this argument must fail. See
Sequenzia v. Guerrieri Masonry, Inc., 298 Conn. 816,
821–22, 9 A.3d 322 (2010) (‘‘[A]lthough the defendant
raised the instructional impropriety claim in the trial
court . . . it concedes that it did not raise this claim in
its brief to the Appellate Court. The defendant contends,
however, that the Appellate Court has the discretion to
decide a case on any basis, regardless of whether that
claim was raised by the parties. We conclude that the
defendant misconstrues the limits of the Appellate
Court’s authority. If the Appellate Court decides to
address an issue not previously raised or briefed, it may
do so only after requesting supplemental briefs from
the parties or allowing argument regarding that issue.
. . . Here, it is undisputed that the Appellate Court did
not order supplemental briefing or argument on the
instructional impropriety claim, which deprived the
plaintiff of the opportunity to be heard on this issue
before that court.’’ (Citations omitted; emphasis omit-
ted; internal quotation marks omitted.)), overruled in
part on other grounds by Blumberg Associates World-
wide, Inc. v. Brown & Brown of Connecticut, Inc., 311
Conn. 123, 84 A.3d 840 (2014); State v. Dalzell, 282
Conn. 709, 715–17, 924 A.2d 809 (2007) (concluding that
Appellate Court improperly addressed preserved claim
not raised on appeal without ordering supplemental
briefing), overruled in part on other grounds by Blumb-
erg Associates Worldwide, Inc. v. Brown & Brown of
Connecticut, Inc., 311 Conn. 123, 84 A.3d 840 (2014);5
cf. In re Joseph W., 301 Conn. 245, 255, 21 A.3d 723(2011) (ordering supplemental briefing where pre-
served claim was not raised on appeal).
We emphasize that ‘‘[o]ur system [is] an adversarial
one in which the burden ordinarily is on the parties to
frame the issues, and the presumption is that issues
not raised by the parties are deemed waived.’’ Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Con-
necticut, Inc., supra, 311 Conn. 164. When the Appellate
Court exercises its discretion to deviate from that gen-
eral principle, it must afford the parties an opportunity
to be heard. See Bloom v. Zoning Board of Appeals, 233
Conn. 198, 205, 658 A.2d 559 (1995) (‘‘[a] fundamental
premise of due process is that a court cannot adjudicate
any matter unless the parties have been given a reason-
able opportunity to be heard on the issues involved’’).
Its failure to do so in the present case necessitates
remand. See, e.g., Diaz v. Commissioner of Correction,
supra, 335 Conn. 60–61 (concluding that Appellate
Court improperly raised and decided issue without pro-
viding parties with opportunity to be heard and remand-
ing case for further proceedings notwithstanding fact
that issue had been fully briefed on appeal); Haynes v.
Middletown, supra, 306 Conn. 474–75 (same); see also
State v. Connor, supra, 321 Conn. 368, 374–75 (conclud-
ing that Appellate Court improperly raised and decided
issue without providing parties with opportunity to be
heard and remanding case for consideration of claims
actually raised because defendant failed to advance
any argument in response to state’s colorable claim of
prejudice).6 We, therefore, remand the present case to
the Appellate Court in order to address the claims raised
by the defendant in his initial appeal. If, during that
proceeding, the Appellate Court chooses to exercise its
discretion to reach the sufficiency issue raised in its
previous decision, it must do so in a manner consistent
with this court’s decision in Blumberg.
The judgment of the Appellate Court is reversed and
the case is remanded for further proceedings consistent
with this opinion.
In this opinion the other justices concurred.
* December 18, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Although the defendant advanced an alibi defense at trial, he did not
challenge the sufficiency of the state’s evidence with respect to identity
either before the Appellate Court; see State v. Stephenson, supra, 187 Conn.
App. 30, 34; or this court.
2
On appeal to the Appellate Court, the bulk of the defendant’s principal
brief pertained to an unrelated evidentiary claim. The defendant also raised
two separate sufficiency claims relating to the charge of attempt to commit
arson in the second degree. Although the defendant renews these claims
of error in the present appeal as alternative grounds for affirmance, their
existence is irrelevant to the question of whether the Appellate Court’s
decision violated the precepts of Blumberg.
3
General Statutes (Rev. to 2013) § 53a-155 (a) provides: ‘‘A person is guilty
of tampering with or fabricating physical evidence if, believing that an official
proceeding is pending, or about to be instituted, he: (1) Alters, destroys,
conceals or removes any record, document or thing with purpose to impair
its verity or availability in such proceeding; or (2) makes, presents or uses
any record, document or thing knowing it to be false and with purpose to
mislead a public servant who is or may be engaged in such official pro-
ceeding.’’
4
In reaching this conclusion, the Appellate Court relied in part on the
absence of evidence that would have shown a completed offense. See State
v. Stephenson, supra, 187 Conn. App. 38 (‘‘[n]o evidence was presented that
any case file was altered, destroyed, concealed or removed in any way’’).
5
In Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecti-
cut, Inc., supra, 311 Conn. 162 n.34, we overruled Sequenzia and Dalzell
only to the extent that those cases stood for the proposition that supplemen-
tal briefing is ‘‘the sole condition for [a] reviewing court to raise a new issue
sua sponte pursuant to its supervisory power . . . .’’ Such a conclusion
cannot, however, be read to imply that supplemental briefing is not required
at all.
6
The defendant claims that his continued incarceration would be unjust
and asks us to exercise our supervisory authority to order his release pending
the resolution of his appeal. The use of that power is, however, limited to
the most extraordinary cases. See, e.g., State v. Edwards, 314 Conn. 465,
498–99, 102 A.3d 52 (2014). The defendant has provided no reason to distin-
guish the present case from other criminal appeals in which an uninvited
error committed by either the Appellate Court or the trial court necessitates
further proceedings.