State v. Gomes ( 2021 )

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STATE OF CONNECTICUT v. WAGNER GOMES
(SC 20407)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Ecker and Keller, Js.
Syllabus
Convicted of the crime of assault in the second degree, the defendant
appealed to the Appellate Court, claiming that the trial court had
deprived him of his right to present a defense of investigative inadequacy
by omitting from its jury instructions certain language in his written
request to charge stating that the jury could consider evidence of the
police investigation as it might relate to any weaknesses in the state’s
case. At trial, the defendant contended that the victim had either mistak-
enly or intentionally misidentified him as the person who assaulted
her and that, if the police had conducted even a minimally adequate
investigation of the incident, they would have discovered this to be the
case. In support of his contention, the defendant adduced testimony
from a number of witness regarding the inadequacy of the police investi-
gation. The Appellate Court affirmed the trial court’s judgment, conclud-
ing that the investigative inadequacy instruction that the trial court had
given did not mislead the jury or otherwise deprive the defendant of
his right to present an investigative inadequacy defense. In reaching its
conclusion, the Appellate Court noted that the trial court’s instruction
was identical to the model jury instruction provided on the Judicial
Branch website and consistent with investigative inadequacy instruc-
tions approved by this court in State v. Collins (299 Conn. 567) and
State v. Williams (169 Conn. 322). The Appellate Court also rejected
the defendant’s contention that, in light of recent developments in the
law, as indicated in this court’s recent decision in State v. Wright (322
Conn. 270), the model instruction no longer reflected the correct state-
ment of the law. On the granting of certification, the defendant appealed
to this court, renewing his claim in the Appellate Court challenging the
propriety of the trial court’s investigative inadequacy instruction. While
this appeal was pending, the defendant was deported, and the record
did not disclose the basis for his deportation. Held:
1. The defendant’s appeal was not rendered moot because of his deportation,
as this court’s mootness doctrine recognizes reputational damage as a
cognizable, collateral consequence of a criminal conviction, and, if the
defendant should prevail on the merits, it will remove the stain of the
underlying conviction from his record.
2. The Appellate Court incorrectly determined that the trial court’s investiga-
tive inadequacy instruction did not mislead the jury or otherwise deprive
the defendant of his right to present an investigative inadequacy defense,
there having been a reasonable possibility that the jury was misled by
the trial court’s instruction: in light of Williams, Collins and Wright,
this court concluded that the model jury instruction utilized by the trial
court failed to inform the jury of a defendant’s right to rely on relevant
deficiencies or lapses in the police investigation to raise the specter of
a reasonable doubt and the jury’s concomitant right to consider any
such deficiencies in evaluating whether the state has proven its case
beyond a reasonable doubt, and the language that the defendant
requested to be added to the model instruction would have properly
apprised the jury of the defendant’s right to present an investigative
inadequacy defense and its right to consider it in evaluating the strength
of the state’s case; moreover, there was a significant risk that the instruc-
tion given by the trial court improperly led the jury to believe that it
could not consider the defendant’s arguments concerning the adequacy
of the police investigation, because, instead of apprising the jury that
reasonable doubt could be found to exist if it concluded that the investi-
gation was careless, incomplete or so focused on the defendant that
it ignored leads that may have suggested other culprits, there was a
reasonable possibility that the instruction had the opposite effect and
caused the jury to believe that it was precluded from considering any
such evidence; furthermore, given the weakness of the state’s case, the
instructional error was harmful, as the state’s case against the defendant
rested almost entirely on the believabilty of the victim’s testimony identi-
fying the defendant as the perpetrator, which the defendant sought to
refute by directing the jury’s attention to the alleged inadequacies in
the police investigation.
State v. Aquino (279 Conn. 293), to the extent that it held that a defendant’s
deportation during the pendency of his or her appeal renders the appeal
moot when the record does not disclose whether the defendant’s guilty
plea was the sole reason for his deportation, overruled.
Argued September 15, 2020—officially released January 26, 2021*
Procedural History
Substitute information charging the defendant with
the crime of assault in the second degree, brought to
the Superior Court in the judicial district of Fairfield,
geographical area number two, and tried to the jury
before Doyle, J.; verdict and judgment of guilty, from
which the defendant appealed to the Appellate Court,
Alvord, Moll and Bear, Js., which affirmed the trial
court’s judgment, and the defendant, on the granting
of certification, appealed to this court. Reversed; new
trial.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Cornelius Kelly, acting state’s
attorney, and Margaret E. Kelley, state’s attorney, for
the appellee (state).
Opinion
KELLER, J. The defendant, Wagner Gomes, appeals1
from the judgment of the Appellate Court affirming his
conviction, rendered following a jury trial, of assault
in the second degree in violation of General Statutes
§ 53a-60 (a) (2). The defendant claims that the Appellate
Court incorrectly determined that the trial court’s
investigative inadequacy jury instruction did not mis-
lead the jury or otherwise deprive him of his right to
present an investigative inadequacy defense. We agree
and, accordingly, reverse the judgment of the Appel-
late Court.
The opinion of the Appellate Court sets forth the
following relevant facts and procedural history. ‘‘In the
early morning hours of September 12, 2015, the victim,
Edilene Brandao, along with several other persons,
including Raphael Morais, attended a birthday party at
the Brazilian Sports Club (club), located at 29 Federal
Street in Bridgeport. Shortly after arriving, the victim
had one drink, and Morais went to the bar to get a
drink for himself. Morais confronted the defendant’s
girlfriend, who was at the bar, pushed her, and made
offensive remarks to her. A fight then broke out inside
the club between the defendant and Morais. Security
guards intervened and separated them. The defendant
was taken outside, and Morais was taken to the
[club’s] patio.
‘‘The victim went to the patio with Morais. There was
a fence at the back of the patio, and the victim had her
back to that fence. The victim proceeded to ask Morais
why he was fighting, and Morais responded, ‘it’s him.’
The victim then turned to face the fence and saw the
defendant standing approximately two feet away from
her, on the outside of the fence, with a bottle in his
hand. The defendant then struck the victim on the fore-
head with the bottle.
‘‘The club’s owner, Demetrio Ayala, Jr., knew the
defendant because he visited the club several times per
month. Ayala observed the [earlier] fight between the
defendant and another person known to him as ‘Rafael.’2
[Ayala ordered the club’s security guards to separate
the defendant and Morais, and to take the defendant
outside and Morais to the patio. Soon thereafter] Ayala,
after hearing shouting on the patio, went to investigate
and discovered that the victim was bleeding. Ayala then
went out the front door of the club in order to try to
find the defendant, [who had just been taken outside
of the club by a security guard, to see if he was near
enough to the outside of the fence surrounding the patio
to be involved in the victim’s injuries. Ayala observed
the defendant] in the parking lot running away from
the club. Ayala subsequently called the police.
‘‘Before the police arrived, the victim was transported
to St. Vincent’s Medical Center in Bridgeport by private
car in the company of several persons who were in the
club that night. She arrived at the hospital at about
12:30 a.m., where she was seen by a triage nurse and
received treatment for the bleeding and pain. Several
hours later, the victim was also treated by a plastic
surgeon and then released.3
‘‘John Topolski and Matthew Goncalves, officers with
the Bridgeport Police Department, were among the first
police officers to arrive at the club shortly after 1:30
a.m. Upon their arrival, they observed that ‘[the scene]
was a mess’ and that ‘there [were] maybe [100] people
scattered amongst the streets.’ Officer Topolski briefly
spoke with Morais, who had, he observed, a swollen
face, one eye that was swollen shut, profuse facial
bleeding, clothes covered in blood, and an apparently
dislocated shoulder.4 Once the scene was secure, the
officers departed for the hospital, intending to question
Morais, who also had been taken to the hospital before
the police completed their initial on-site investigation.
While the officers were en route to the hospital, they
received a radio dispatch informing them that a woman,
who also had been injured at the club, was already at
the hospital.
‘‘When the officers arrived at the hospital, Officer
Topolski went in search of the injured woman, and
Officer Goncalves went in search of Morais. Although
Officer Goncalves located Morais, he was unable to
speak with Morais because his wounds were being
treated, and he was being prepared for surgery. Officer
Topolski located the victim in the waiting area of the
hospital’s emergency department and identified her as
the woman who had been injured at the club. The victim
was in the company of approximately five other individ-
uals. Officer Topolski observed that the victim was cry-
ing and visibly shaken. She had blood covering her face
and was holding gauze to her head. Despite her physical
and emotional condition, the victim was coherent
enough to provide information to Officer Topolski. In
her verbal statement to Officer Topolski, the victim
denied that Morais may have been the aggressor in
some type of altercation with her. Officer Topolski,
while he was at the hospital, also obtained the name
of the defendant, but it was not clear from whom he
received that information.5
‘‘On October 2, 2015, the victim went to the Bridge-
port police station with her attorney, where she was
interviewed by Detective Paul Ortiz in the presence of
Sergeant Gilbert Valentine about the events that
occurred on September 12, 2015. Detective Ortiz
reviewed Officer Topolski’s report of the events.
Through this report, Detective Ortiz learned that the
defendant might be a suspect. Detective Ortiz prepared
a photographic array that included a photograph of the
defendant, which he showed to the victim. When the
victim viewed the photograph of the defendant, she
became emotional and started to cry. She examined
the entire array and then selected the defendant’s photo-
graph, on which she wrote that she was ‘100 percent’
confident that he was the person who had attacked her.
The defendant was subsequently arrested.
‘‘At trial, the defendant sought to persuade the jury
that reasonable doubt existed regarding the victim’s
identification of the defendant as the person who
assaulted her. The main defense advanced by the defen-
dant was that the police had conducted an inadequate
investigation of the incident.
‘‘During closing arguments, defense counsel argued
that ‘this case screams reasonable doubt. . . . [T]he
police completely failed in this case, and they com-
pletely failed [the victim]. They didn’t go back to that
scene that night. They didn’t identify the crime scene.
They didn’t take any photos so that you, ladies and
gentlemen, could see how the scene looked that night.
How the lighting looked. They never tried to get any
surveillance video. . . . They didn’t confirm what hap-
pened.’ Defense counsel also argued that the police
‘spent ninety minutes on this investigation,’ and that
the case ‘boil[ed] down to one witness and what she
saw in a split second, and she may very well believe
that [the defendant] did this to her. But the police did
nothing to confirm as to what Officer Goncalves said
they needed to do.’6
‘‘In connection with his defense of inadequate police
investigation, the defendant had filed a written request
to charge the jury, which provided in relevant part:
‘[1] You have heard some arguments that the police
investigation was inadequate and biased. [2] The issue
for you to decide is not the thoroughness of the investi-
gation or the competence of the police. [3] However,
you may consider evidence of the police investigation
as it might relate to any weaknesses in the state’s case.
[4] Again, the only issue you have to determine is
whether the state, in light of all the evidence before
you, has proved beyond a reasonable doubt that the
defendant is guilty of the counts with which he is
charged.’
‘‘On October 27, 2018, the court held a charge confer-
ence. In discussing the final charge, the court told
defense counsel that it would be charging on the ade-
quacy of the police investigation, in a form that was
somewhat similar to the defendant’s requested instruc-
tion, but that ‘[its instruction] may be a little bit differ-
ent.’
‘‘The court instructed the jury in relevant part: ‘You
have heard some arguments that the police investiga-
tion was inadequate and that the police involved in the
case were incompetent or biased. The issue for you to
decide is not the thoroughness of the investigation or
the competence of the police. The only issue you have
to determine is whether the state, in light of all the
evidence before you has proved beyond a reasonable
doubt that the defendant is guilty of the counts with
which he was charged.’ Defense counsel objected to
the court’s omission of point three of his requested
instruction.
‘‘The jury subsequently found the defendant guilty of
assault in the second degree . . . . The court rendered
judgment in accordance with the jury’s verdict and
imposed a total effective sentence of five years of
imprisonment, execution suspended after two years,
followed by three years of probation.’’ (Footnote added;
footnotes in original; footnotes omitted.) State v.
Gomes, 193 Conn. App. 79, 81–86, 218 A.3d 1063 (2019).
The defendant appealed to the Appellate Court, claim-
ing that ‘‘the jury instructions, as given, deprived him
of his right to present a defense of investigative inade-
quacy. Specifically, the defendant argue[d] that the
[trial] court erred in failing to include point three of his
requested jury charge, which [provides]: ‘However, you
may consider evidence of the police investigation as it
might relate to any weaknesses in the state’s case.’ The
defendant argue[d] that without the inclusion of this
requested sentence, the jury would not ‘have under-
stood how to use the evidence [defense counsel] was
able to elicit about the inadequacies of [the police inves-
tigation].’ ’’ Id., 86.
The Appellate Court rejected the defendant’s claim,
noting that the instruction given by the trial court was
(1) identical to the model criminal jury instruction on
investigative inadequacy provided on the Judicial
Branch website,7 and (2) consistent with investigative
inadequacy instructions approved by this court in State
v. Collins, 299 Conn. 567, 598, 10 A.3d 1005, cert. denied,
565 U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011),8
and State v. Williams, 169 Conn. 322, 335 n.3, 363 A.2d
72 (1975),9 and by the Appellate Court in State v. Nieves,
106 Conn. App. 40, 57–58, 941 A.2d 358, cert. denied,
286 Conn. 922, 949 A.2d 482 (2008),10 and State v. Tate,
59 Conn. App. 282, 284–85, 755 A.2d 984, cert. denied,
254 Conn. 935, 761 A.2d 757 (2000).11 See State v. Gomes,
supra, 193 Conn. App. 87–89. The Appellate Court also
rejected the defendant’s contention that this court’s
recent decision in State v. Wright, 322 Conn. 270, 140
A.3d 939 (2016), signaled a marked development in our
jurisprudence on the investigative inadequacy defense,
thus calling into question the continued adequacy of the
instructions approved in earlier cases. State v. Gomes,
supra, 92. The Appellate Court determined that the
defendant’s reliance on Wright was misplaced because
that case ‘‘did not consider the adequacy of a jury
instruction on an investigative inadequacy defense’’ and
because, to the extent this court expressed any views on
the substance of that defense, they were fully consistent
with the views expressed in Collins. Id., 92–93.
Finally, the Appellate Court observed that, in its
instructions regarding reasonable doubt, the trial court
had advised the jury that ‘‘[a] reasonable doubt may
arise from the evidence itself or from a lack of evi-
dence.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 95. On the basis of this instruction, and
the trial court’s investigative inadequacy instruction,
which ‘‘repeated to the jury its responsibility to deter-
mine whether the state, in light of all of the evidence,
had proved beyond a reasonable doubt that the defen-
dant was guilty of the count with which he was
charged,’’ the Appellate Court concluded that ‘‘the jury
was not misled by the instructions given . . . .’’ Id.
This certified appeal followed.
I
Following submission of the parties’ briefs to this
court, the defendant was deported to Cape Verde.
Because the record on appeal did not disclose the basis
for the defendant’s deportation,12 we directed the par-
ties to submit supplemental briefs addressing whether
the defendant’s removal from the United States had
rendered the appeal moot13 under State v. Aquino, 279
Conn. 293, 901 A.2d 1194 (2006), and State v. Jerzy G.,
326 Conn. 206, 162 A.3d 692 (2017). We did so because,
in Aquino, this court held that a defendant’s deportation
during the pendency of his appeal had rendered his
appeal moot insofar as the record did not disclose
whether his guilty plea was the sole reason for his
deportation, and, as a result, it was not clear whether
we could afford him any practical relief. State v. Aquino,
supra, 298. In Jerzy G., however, we questioned
whether Aquino was correctly decided, noting that the
decision ‘‘[o]n its face . . . appear[ed] to be inconsis-
tent with our collateral consequences jurisprudence’’;
State v. Jerzy G., supra, 220; particularly the well estab-
lished ‘‘presumption of collateral consequences,’’ which
attaches automatically to criminal convictions. Id., 223
n.6. Because, however, we could resolve Jerzy G. with-
out deciding that question, we left it for another day.
Id., 223 and n.6. That day has come. For the reasons
set forth hereinafter, we conclude that Aquino was
wrongly decided and must be overruled. We further
conclude that the defendant’s appeal is not moot
because a favorable decision on the merits can provide
the defendant with a measure of practical relief.
It is well settled that ‘‘[a] case is considered moot if
[the] court cannot grant the [litigant] any practical relief
through its disposition of the merits . . . . Under such
circumstances, the court would merely be rendering
an advisory opinion, instead of adjudicating an actual,
justiciable controversy.’’ (Citation omitted; internal
quotation marks omitted.) Id., 213. The general princi-
ples guiding our mootness analysis are well established.
‘‘The doctrine of mootness is rooted in the same policy
interests as the doctrine of standing, namely, to assure
the vigorous presentation of arguments concerning the
matter at issue. See H. Monaghan, ‘Constitutional Adju-
dication: The Who and When,’ 82 Yale L.J. 1363, 1384
(1973) (describing mootness as the doctrine of standing
set in a time frame: [t]he requisite personal interest
that must exist at the commencement of the litigation
[standing] must continue throughout its existence
[mootness]). . . . [T]he standing doctrine is designed
to ensure that courts and parties are not vexed by suits
brought to vindicate nonjusticiable interests and that
judicial decisions which may affect the rights of others
are forged in hot controversy, with each view fairly and
vigorously represented. . . . Justiciability requires (1)
that there be an actual controversy between or among
the parties to the dispute . . . (2) that the interests of
the parties be adverse . . . (3) that the matter in con-
troversy be capable of being adjudicated by judicial
power . . . and (4) that the determination of the con-
troversy will result in practical relief to the complain-
ant. . . .
‘‘The first factor relevant to a determination of justi-
ciability—the requirement of an actual controversy—
is premised upon the notion that courts are called upon
to determine existing controversies, and thus may not
be used as a vehicle to obtain advisory judicial opinions
on points of law. . . . Moreover, [a]n actual contro-
versy must exist not only at the time the appeal is taken,
but also throughout the pendency of the appeal. . . .
When, during the pendency of an appeal, events have
occurred that preclude an appellate court from granting
any practical relief through its disposition of the merits,
a case has become moot. . . .
‘‘This court has recognized, however, that a case does
not necessarily become moot by virtue of the fact that
. . . due to a change in circumstances, relief from the
actual injury is unavailable. We have determined that
a controversy continues to exist, affording the court
jurisdiction, if the actual injury suffered by the litigant
potentially gives rise to a collateral injury from which
the court can grant relief.’’ (Citations omitted; internal
quotation marks omitted.) State v. McElveen, 261 Conn.
198, 204–205, 802 A.2d 74 (2002). ‘‘[F]or a litigant to
invoke successfully the collateral consequences doc-
trine, the litigant must show that there is a reasonable
possibility that prejudicial collateral consequences will
occur. . . . This standard provides the necessary limi-
tations on justiciability underlying the mootness doc-
trine itself. Where there is no direct practical relief
available from the reversal of the judgment . . . the
collateral consequences doctrine acts as a surrogate,
calling for a determination whether a decision in the
case can afford the litigant some practical relief in the
future. The reviewing court therefore determines, based
upon the particular situation, whether, the prejudicial
collateral consequences are reasonably possible.’’ Id.,
208.
In applying these principles, we have long held that
a conclusive presumption of prejudicial collateral con-
sequences attaches to criminal convictions not only
because of the undesirable legal disabilities they
impose, but also because of the damage they cause to
a defendant’s reputation. See, e.g., State v. Jordan, 305
Conn. 1, 10 n.9, 44 A.3d 794 (2012) (‘‘since collateral
legal disabilities are imposed as a matter of law because
of a criminal conviction, a case will not be declared
moot even [when] the sentence has been fully served’’
(internal quotation marks omitted)); Putman v. Ken-
nedy, 279 Conn. 162, 176 n.14, 900 A.2d 1256 (2006)
(‘‘the collateral consequences doctrine applies when the
collateral consequences of the contested court action,
such as the continuing stigma of a criminal conviction,
constitute a continuing injury to the specific litigant,
justifying the court’s retention of jurisdiction over the
dispute, despite the lack of any consequences flowing
from the adjudication directly at issue in the appeal’’
(internal quotation marks omitted)); Putman v. Ken-
nedy, supra, 172 (‘‘inasmuch as we previously have
recognized the importance of reputation damage as a
collateral consequence in other contexts, we see no
reason not to do so here, for being the subject of a
court order intended to prevent or stop domestic vio-
lence may well cause harm to the reputation . . . of
the defendant’’); see also Williams v. Ragaglia, 261
Conn. 219, 231, 802 A.3d 778 (2002) (appeal was not
moot because ‘‘revocation of a foster care license for
cause stigmatizes the plaintiff as having been found to
be an unfit caregiver’’); State v. McElveen, supra, 261
Conn. 215 (defendant’s appeal from probation revoca-
tion was not moot because revocation may ‘‘affect his
standing in the community in its connotation of wrong-
doing’’ (internal quotation marks omitted)); Statewide
Grievance Committee v. Whitney, 227 Conn. 829, 838
n.13, 633 A.2d 296 (1993) (‘‘collateral consequences for
an attorney’s reputation and professional standing
make it clear that the defendant’s appeal from his sus-
pension is not moot’’); State v. Collic, 55 Conn. App.
196, 201, 738 A.2d 1133 (1999) (removal of probation
violation from defendant’s record would delete ‘‘mark
that would otherwise . . . affect his reputation in the
community’’).
In Aquino, however, without any discussion of the
foregoing principles, this court dismissed the appeal
of the defendant, Mario Aquino, as moot, stating that,
‘‘[w]hile this appeal was pending, [Aquino] was
deported. There is no evidence in the record as to the
reason for his deportation. If it was not the result of
his guilty plea alone, then this court can grant no practi-
cal relief and any decision rendered by this court would
be purely advisory.’’ (Footnote omitted.) State v.
Aquino, supra, 279 Conn. 298. As we later explained in
State v. Jerzy G., supra, 326 Conn. 220–21, although the
court in Aquino cited no authority for the proposition
that we could not afford Aquino practical relief unless
he could establish that his guilty plea was the sole basis
for his deportation, it appears that the court, in reaching
that decision, followed federal case law addressing this
issue, specifically Perez v. Greiner, 296 F.3d 123 (2d
Cir. 2002), which held that, ‘‘when a conviction, other
than the one being challenged, results in a deportee’s
permanent ban from reentering this country, the depor-
tee cannot establish collateral injury even if the chal-
lenged conviction also is an impediment to reentry.
See [id., 126] (‘because [the petitioner] is permanently
inadmissible to this country due to his prior drug convic-
tion, collateral consequences cannot arise from the
challenged robbery conviction, and the petition is
moot’).’’ (Emphasis omitted.) State v. Jerzy G., supra,
221.
It is apparent, however, that the court’s reliance in
Aquino on Perez was mistaken because this court is
not bound by federal mootness principles, which are
‘‘based on the justiciability requirements applicable to
the federal courts under article three of the United
States constitution. . . . In deciding issues of moot-
ness, this court is not constrained by article three, § 2,
or the allocation of power between the state and federal
governments.14 Our state constitution [provides that]
. . . the jurisdiction of [the] courts shall be defined
by law. Conn. Const., art. V, § 1. . . . Our mootness
jurisprudence, therefore, has evolved under our com-
mon law.’’ (Citations omitted; footnote added; internal
quotation marks omitted.) State v. McElveen, supra, 261
Conn. 211–12; see also Andross v. West Hartford, 285
Conn. 309, 329, 939 A.2d 1146 (2008) (noting that, for
purposes of standing, this court is ‘‘not required to apply
federal precedent in determining the issue of
aggrievement’’ (internal quotation marks omitted)).
One significant difference between our mootness
doctrine and that of the federal courts, which is ulti-
mately dispositive of the jurisdictional question pre-
sented in this appeal and should have been dispositive
in Aquino, is that federal law does not recognize reputa-
tional damage as a cognizable collateral consequence of
a criminal conviction, only concrete legal disabilities.15
See, e.g., Spencer v. Kemna, 523 U.S. 1, 16 n.8, 118 S.
Ct. 978, 140 L. Ed. 2d 43 (1998) (damage to reputation
was insufficient collateral consequence of criminal con-
viction to avoid dismissal on mootness grounds); Fore-
tich v. United States, 351 F.3d 1198, 1212 (D.C. Cir.
2003) (‘‘[o]ur case law makes clear that [when] reputa-
tional injury is the lingering effect of an otherwise moot
aspect of a lawsuit, no meaningful relief is possible’’);
United States v. Probber, 170 F.3d 345, 349 (2d Cir.
1999) (noting that, in criminal cases, federal courts
‘‘[reject] the notion that the possibility of vindicating
a reputational interest of the sort asserted here [is]
sufficient to avoid mootness’’); Wickstrom v. Schardt,
798 F.2d 268, 270 (7th Cir. 1986) (holding that collateral
consequences must be serious legal consequences, not
mere injury to reputation).
As we have explained, our mootness doctrine does
recognize the collateral consequence of reputational
damage. See, e.g., State v. Jerzy G., supra, 326 Conn.
225 (‘‘if the defendant’s appeal is deemed to be moot,
he will have been deprived of the only avenue to remove
[the] stain [to his reputation]’’ caused by underlying
guilty plea); Putman v. Kennedy, supra, 279 Conn. 172,
175 (recognizing importance of reputation damage as
collateral consequence in determining that defendant’s
appeals were not moot). Indeed, ‘‘the citizens of this
state have placed such value on one’s interests in his
or her reputation as to afford it constitutional protec-
tion. See Conn. Const., art. I, § 10 (‘[a]ll courts shall be
open, and every person, for an injury done to him in
his person, property or reputation, shall have remedy
by due course of law, and right and justice administered
without sale, denial or delay’).’’ Williams v. Ragaglia,
supra, 261 Conn. 232–33; see id. (rejecting mootness
challenge to court’s jurisdiction). Accordingly, we con-
clude that Aquino was wrongly decided and must be
overruled. We further conclude that the defendant’s
appeal is not moot because, should he prevail on the
merits, it will remove the stain of the underlying convic-
tion from his record. We turn, therefore, to the merits
of the appeal.
II
The defendant claims that the Appellate Court incor-
rectly determined that the trial court’s investigative
inadequacy instruction did not mislead the jury or other-
wise prejudice his constitutional right to present a
defense of investigative inadequacy. As previously indi-
cated, the Appellate Court rejected the defendant’s
claim of instructional error, concluding that the chal-
lenged instruction was an accurate statement of the
law and sufficient to guide the jury in reaching a verdict
because the instruction was (1) identical to the model
jury instruction on investigative inadequacy on the Judi-
cial Branch website, and (2) ‘‘[n]early identical’’ to
instructions this court and the Appellate Court have
upheld in prior cases. State v. Gomes, supra, 193 Conn.
App. 88–89. The Appellate Court also rejected the defen-
dant’s contention that, even if the model instruction
was once considered a correct statement of the law, it
was no longer correct in light of recent developments
in the law. Id., 91–93.
On appeal to this court, the defendant renews his
claim before the Appellate Court, including his asser-
tion that the model jury instruction, though similar in
some respects to the instructions approved in Williams
and Collins, is missing critical language that saved the
instructions in those cases from constitutional infir-
mity, namely, ‘‘the defense was entitled to make an
investigation and put on evidence before you.’’ The
defendant argues that, although the omitted language
is not as clear a statement of the right to present an
investigative inadequacy defense as the statement in
Collins that ‘‘[a] defendant may . . . rely upon relevant
deficiencies or lapses in the police investigation to raise
the specter of reasonable doubt’’; State v. Collins, supra,299 Conn. 599–600; it nevertheless conveys ‘‘that the
defendant’s investigative evidence and arguments are
legitimate grist for the jury’s mill.’’ According to the
defendant, by omitting this pivotal language from the
model jury instruction—language that was included in
the instructions approved in Williams and Collins—
and by then instructing the jury that, although it had
‘‘heard some arguments that the police investigation
was inadequate and that the police involved in the case
were incompetent,’’ the issue it must decide was ‘‘not
the thoroughness of the investigation or the compe-
tence of the police,’’ the trial court effectively instructed
the jury not to consider the defendant’s arguments
regarding the inadequacy of the investigation in
assessing reasonable doubt.
The state argues, in response, that the trial court’s
instruction was not improper because it highlighted the
defendant’s investigative inadequacy arguments,
reminded the jury that its core responsibility was not
to evaluate the adequacy of the investigation in the
abstract, but to determine whether the defendant was
guilty of the charged offenses beyond a reasonable
doubt, and accords with existing Connecticut law on
investigative inadequacy instructions. We agree with
the defendant that there is a reasonable possibility that
the jury was misled by the trial court’s investigative
inadequacy instruction, and, therefore, the defendant
is entitled to a new trial.
The following additional facts are relevant to our
resolution of the defendant’s claim. As previously indi-
cated, the defendant requested that the trial court
instruct the jury that it could ‘‘consider evidence of the
police investigation as it might relate to any weaknesses
in the state’s case’’ in light of his contention at trial that
the victim had misidentified him as her assailant, either
mistakenly or intentionally to protect Morais, the actual
assailant, and that, if the police had conducted even
a minimally adequate investigation, they would have
realized this to be the case. In support of this contention,
the defendant adduced the testimony of his then girl-
friend, Juliele Silver Ferreira, who testified that she was
at the club with the defendant on the night in question
and that they had left after his altercation with Morais
but before the victim was assaulted. The defendant
further adduced the testimony of Ayala, the club owner,
and his wife, Debroa Moncio, that Morais was beaten
up by a group of club patrons immediately after the
victim sustained her injuries. The defendant also elic-
ited testimony from Officers Topolski and Goncalves,
the first two officers to arrive on the scene, that, when
they were dispatched to the club, they were informed
by the dispatcher that Morais was a suspect in the
assault but that neither officer ever investigated Morais
as a suspect. Detective Ortiz testified that, when he
interviewed Morais, he viewed him as a witness or a
victim but not as a suspect.16
Officers Topolski and Goncalves further testified
that, upon arriving at the club, they were approached
by several club patrons claiming to have information
about the assault, but they did not ask for the names
or contact information for any of these witnesses or
ever attempt to interview them regarding what they had
seen. Officers Topolski and Goncalves further acknowl-
edged never interviewing Ayala or any of the club’s
staff who were working there that evening to determine
whether they had heard or seen anything that might
aid the investigation. Finally, the victim testified that
she had never met or seen the defendant prior to the
night in question and that she had only a ‘‘split second’’
to observe her attacker.
In light of this and other testimony, defense counsel
argued to the jury that, although the state’s case relied
entirely on the victim’s identification of the defendant,
the police ‘‘did nothing’’ to confirm the accuracy of that
identification. In particular, defense counsel argued that
the police never investigated reports they had received
on the night in question that Morais, who was beaten
by club patrons immediately after the victim was
assaulted, was the actual perpetrator. As a conse-
quence, defense counsel argued that the state had not
proven its case beyond a reasonable doubt.
The following well established legal principles guide
our analysis of the defendant’s claim. ‘‘[A] fundamental
element of due process of law is the right of a defendant
charged with a crime to establish a defense. . . .
Where . . . the challenged jury instructions involve a
constitutional right, the applicable standard of review
is whether there is a reasonable possibility that the jury
was misled in reaching its verdict. . . . In evaluating
the particular charges at issue, we must adhere to the
well settled rule that a charge to the jury is to be consid-
ered in its entirety, read as a whole, and judged by its
total effect rather than by its individual component
parts. . . . [T]he test of a court’s charge is . . .
whether it fairly presents the case to the jury in such
a way that injustice is not done to either party under
the established rules of law.’’ (Internal quotation marks
omitted.) State v. Collins, supra, 299 Conn. 598–99. ‘‘If
a requested charge is in substance given, the court’s
failure to give a charge in exact conformance with the
words of the request will not constitute a ground for
reversal. . . . As long as [the instructions] are correct
in law, adapted to the issues and sufficient for the guid-
ance of the jury . . . we will not view the instructions
as improper. . . . Additionally, we have noted that [a]n
error in instructions in a criminal case is reversible
error when it is shown that it is reasonably possible
for errors of constitutional dimension or reasonably
probable for nonconstitutional errors that the jury [was]
misled.’’ (Citations omitted; internal quotation marks
omitted.) State v. Aviles, 277 Conn. 281, 309–10, 891
A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166
L. Ed. 2d 69 (2006). ‘‘A challenge to the validity of jury
instructions presents a question of law over which [we
have] plenary review.’’ (Internal quotation marks omit-
ted.) State v. Collins, supra, 599.
In Williams, this court considered for the first time
a claim of instructional error relating to ‘‘a statement
in the [jury] charge relative to the competence of the
police investigation.’’ State v. Williams, supra, 169
Conn. 334–35. The instruction provided: ‘‘Now, you have
heard in the course of arguments discussion as to
whether the police conducted a thorough search. You
have also heard some discussion about the competency
of the police in this arrest. Now, ladies and gentlemen,
this question might be a matter of opinion, but the
[s]tate has put its evidence before you, and the defense
was entitled to make an investigation and put its evi-
dence before you also, and, of course, not only the
[s]tate but also the defense has put on evidence on
behalf of the defendant. I say to you, ladies and gentle-
men, that the issue before you is not the thoroughness
of the investigation or the competence of the police.
This issue you have to determine is whether the [s]tate
in the light of all the evidence before you has proved
beyond a reasonable doubt that the defendant is guilty
on one or both counts with which he is charged.’’ (Inter-
nal quotation marks omitted,) Id., 335 n.3; see also foot-
note 9 of this opinion. Without discussing the particu-
lars of the claim or the legal basis for it, the court
concluded that the challenged instruction ‘‘gave the
jury a clear understanding of the issues involved and
a proper guidance in determining those issues.’’ Id., 336.
In Collins, however, this court took a closer look at
the right to present a defense based on the inadequacy
of a police investigation, explaining in relevant part:
‘‘In the abstract, whether the government conducted a
thorough, professional investigation is not relevant to
what the jury must decide: Did the defendant commit
the alleged offense? Juries are not instructed to acquit
the defendant if the government’s investigation was
superficial. Conducting a thorough, professional inves-
tigation is not an element of the government’s case.
. . . A defendant may, however, rely upon relevant
deficiencies or lapses in the police investigation to
raise the specter of reasonable doubt, and the trial
court violates his right to a fair trial by precluding
the jury from considering evidence to that effect. See
Commonwealth v. Bowden, 379 Mass. 472, 485–86, 399
N.E.2d 482 (1980) (trial court improperly instructed
jury not to consider evidence of investigators’ failure
to perform certain scientific tests when defendant’s
presentation at trial focused on raising inference that
police had contrived much of the case against him and
he emphasized that failure in order to call into question
the integrity of the police investigation); see also Com-
monwealth v. Avila, 454 Mass. 744, 767, 912 N.E.2d
1014 (2009) (a judge may not remove the issue of a
biased or faulty police investigation from the jury); Peo-
ple v. Rodriguez, [141 App. Div. 2d 382, 385, 529 N.Y.S.2d
318 (1988)] (trial court denied defendant fair trial by
eliminat[ing] from the jury’s consideration an essential
element of the defense, namely, police testing that did
not yield fingerprints on gun at issue).’’ (Citations omit-
ted; emphasis added; footnote omitted; internal quota-
tion marks omitted.) State v. Collins, supra, 299 Conn.
599–600.
On appeal, the defendant in Collins, Ricardo Collins,
claimed that the last two sentences of the instruction,
which substantively was identical to the one given in
Williams; see footnote 8 of this opinion; ‘‘destroyed
[his] defense by precluding consideration of it and also
by conveying the judge’s impression that his defense
was not worthy of consideration.’’ (Internal quotation
marks omitted.) State v. Collins, supra, 299 Conn. 598.
We disagreed, concluding that ‘‘[the] instruction did not
mislead the jury or violate [Collins’] right to present a
defense because it did not direct the jury not to consider
the adequacy of the investigation as it related to the
strength of the state’s case, or not to consider specific
aspects of [Collins’] theory of the case. Rather, the
instruction highlighted the portions of the parties’ argu-
ments that addressed the adequacy of the police investi-
gation, and properly reminded the jury that its core task
was to determine whether [Collins] was guilty of the
charged offenses in light of all the evidence admitted
at trial, rather than to evaluate the adequacy of the
police investigation in the abstract. . . . Moreover,
notwithstanding [Collins’] arguments to the contrary,
the . . . instruction was phrased in neutral language
and did not improperly disparage [his] claims, or
improperly highlight or endorse the state’s arguments
and evidence.’’ (Citations omitted; emphasis added;
footnotes omitted.) Id., 600–602.17
In State v. Wright, supra, 322 Conn. 281, this court
revisited the defense of investigative inadequacy, albeit
in the context of a claim that the trial court improperly
precluded the defendant, Billy Ray Wright, from asking
questions during cross-examination about the adequacy
of the police investigation in that case.18 In addressing
this claim, we reaffirmed recognition of a defendant’s
entitlement to present an investigative inadequacy
defense, stating in relevant part: ‘‘[T]he inference that
may be drawn from an inadequate police investigation
is that the evidence at trial may be inadequate or unrelia-
ble because the police failed to conduct the scientific
tests or to pursue leads that a reasonable police investi-
gation would have conducted or investigated, and these
tests or investigation reasonably may have led to signifi-
cant evidence of the defendant’s guilt or innocence. A
jury may find a reasonable doubt if [it] conclude[s]
that the investigation was careless, incomplete, or so
focused on the defendant that it ignored leads that
may have suggested other culprits.’’ (Internal quotation
marks omitted.) Id., 283, citing Commonwealth v. Silva-
Santiago, 453 Mass. 782, 801, 906 N.E.2d 299 (2009).
In light of Williams, Collins and Wright, we agree
with the defendant that the model jury instruction uti-
lized by the trial court in the present case failed to
inform the jury not only of a defendant’s right to ‘‘rely
upon relevant deficiencies or lapses in the police inves-
tigation to raise the specter of reasonable doubt’’; State
v. Collins, supra, 299 Conn. 599–600; but also the jury’s
concomitant right to consider any such deficiencies in
evaluating whether the state has proved its case beyond
a reasonable doubt.19 Although the model instruction
is similar to the instructions this court approved in
Williams and Collins because it informs the jury not
to consider investigative inadequacy ‘‘in the abstract’’;
(internal quotation marks omitted) id., 599; the model
instruction, unlike the instructions in Williams and Col-
lins, improperly fails to inform the jury that a defendant
may present evidence of investigative inadequacy in his
or her particular case. Indeed, as the defendant argues,
the model instruction omits the very language that the
court in Collins determined rendered the instruction in
that case acceptable because it (1) apprised the jury
that ‘‘the defendant was entitled to make an investiga-
tion and put his evidence before [it],’’ and (2) directed
the jury to determine, based on ‘‘all the evidence before
[it],’’ including evidence presented by the defendant,
whether the state had proved the defendant’s guilt
beyond a reasonable doubt. (Emphasis added; internal
quotation marks omitted.) Id., 595. The language that
the defendant requested be added to the model jury
instruction—i.e., that the jury ‘‘may consider evidence
of the police investigation as it might relate to any
weaknesses in the state’s case’’—would have similarly
apprised the jury of the defendant’s right to present an
investigative inadequacy defense and the jury’s right to
consider it in evaluating the strength of the state’s case.
We further conclude that there is a significant risk
that the instruction given by the trial court misled the
jury to believe that it could not consider the defendant’s
arguments concerning the adequacy of the police inves-
tigation. Although the first sentence of the instruction
acknowledged that the defendant made arguments that
the police had failed to investigate adequately the crime
in question, in the very next sentence, the jury was
instructed that the adequacy of the police investigation
was not for it to decide. This admonishment was rein-
forced by the third and final sentence that the ‘‘only’’
issue for the jury to decide was whether the state had
proven the defendant’s guilt beyond a reasonable doubt.
(Emphasis added; internal quotation marks omitted.)
Thus, rather than apprising the jury that reasonable
doubt could be found to exist if the jury ‘‘conclude[d]
that the investigation was careless, incomplete, or so
focused on the defendant that it ignored leads that
may have suggested other culprits’’; (internal quotation
marks omitted) State v. Wright, supra, 322 Conn. 283;
there is a reasonable possibility that the instruction had
the opposite effect and caused the jury to believe that
it was prohibited from considering any such evidence.
Cf. State v. Collins, supra, 299 Conn. 600–601 (instruc-
tion ‘‘did not direct the jury not to consider the adequacy
of the investigation as it related to the strength of the
state’s case, or not to consider specific aspects of the
defendant’s theory of the case’’ (emphasis added)); see
also Stabb v. State, 423 Md. 454, 472, 31 A.3d 922 (2011)
(instruction impermissibly invaded province of jury by
effectively directing it not to consider lack of sexual
assault forensics examination or corroborating physical
evidence); Atkins v. State, 421 Md. 434, 452–53, 26 A.3d
979 (2011) (concluding that instruction violated defen-
dant’s constitutional rights to due process and fair trial
because it directed jury to ignore arguments by defen-
dant that state had not presented scientific evidence
connecting knife to alleged crime).
Given the relative weakness of the state’s case, it
also is apparent that the instructional error was harmful
to the defendant. As previously indicated, the state’s
case against the defendant turned almost entirely on
the believability of the victim’s testimony that, although
she had never seen the defendant before the night in
question and could not describe him to Officer Topolski
when they spoke at the hospital following the assault,
and although the attack occurred in ‘‘a split second’’
from behind a six foot fence, she was able to identify the
defendant as her assailant from a photographic array
conducted more than two weeks later. Defense counsel
sought to exploit and amplify the weaknesses in the
state’s evidence by directing the jury’s attention to inad-
equacies and omissions in the investigation, in particu-
lar Officers Topolski’s and Goncalves’ failure to con-
sider Morais as a potential suspect, even though he was
identified as such by the police dispatcher, as well as
their failure to interview any of the witnesses who
approached them on the night in question outside the
club, claiming to have information about the assault.
Defense counsel asked the jury to find the defendant
not guilty on the basis of these investigative lapses
because they raised a reasonable doubt as to the trust-
worthiness of the victim’s identification of him as the
person who attacked her. We cannot conclude that a
properly instructed jury would not have done so.20
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for a new trial.
In this opinion the other justices concurred.
* January 26, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
This court granted the defendant’s petition for certification to appeal,
limited to the following issues: (1) ‘‘Did the Appellate Court correctly con-
clude that the trial court’s ‘investigative inadequacy’ jury instruction did not
mislead the jury or otherwise prejudice the defendant?’’ And (2) ‘‘[s]hould
this court overrule or limit its decisions in State v. Williams, 169 Conn. 322,
363 A.2d 72 (1975), and State v. Collins, 299 Conn. 567, 10 A.3d 1005, cert.
denied, 565 U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011), as they relate
to the ‘investigative inadequacy’ jury instruction, and invoke its supervisory
authority to prescribe an investigative inadequacy instruction as proposed
by the defendant?’’ State v. Gomes, 334 Conn. 902, 219 A.3d 798 (2019).
2
‘‘It is not clear from the record whether the individual that Ayala knew
as ‘Rafael’ was Raphael Morais. Ayala did not know the last name of the
individual whom he referred to as Rafael, and the spelling of the name,
Raphael or Rafael, is inconsistent throughout the trial transcripts. Neverthe-
less, both parties concede in their briefs that the defendant and Morais were
engaged in some form of altercation.’’ State v. Gomes, 193 Conn. App. 79,
82 n.5, 218 A.3d 1063 (2019).
3
‘‘The plastic surgeon who treated the victim testified regarding her injur-
ies. Reading from an emergency department attending physician’s note that
was in evidence, the plastic surgeon stated: ‘The patient sustained a deep
laceration in the left eyebrow, and she was struck with a bottle on the face
during the fight in the bar. . . . There is a five centimeter in length laceration
that’s deep with irregular borders and a small stellar portion [over] the left
brow . . . .’ The plastic surgeon also testified that the ‘stellar portion’
referred to ‘where the skin . . . bursts open from contact where it stellates,
so it just looks like a star. . . . It’s not a clean laceration, like you get from
a kitchen knife.’ ’’ State v. Gomes, 193 Conn. App. 79, 82–83 n.6, 218 A.3d
1063 (2019).
4
‘‘There was evidence that, after the defendant struck the victim with the
bottle, several other patrons of the club attacked Morais.’’ State v. Gomes,
193 Conn. App. 79, 83 n.7, 218 A.3d 1063 (2019).
5
‘‘The victim testified that she did not give the defendant’s name to the
police because she did not know the defendant prior to the night she was
attacked.’’ State v. Gomes, 193 Conn. App. 79, 84 n.8, 218 A.3d 1063 (2019).
6
Officer Goncalves testified that, in his experience responding to incidents
at bars, because of the consumption of alcohol, bystanders tend to volunteer
information to the police about their observations, which are often in
‘‘blurry’’ detail. He further testified that the police view this information
with skepticism until it can be ‘‘confirm[ed].’’ During closing argument,
defense counsel directed the jury’s attention to this testimony: ‘‘You know
what else Officer Goncalves said . . . when he testified about that night?
It was interesting. I don’t know if you caught it. He said so typically when
. . . officers do respond to bar fights, alcohol is involved so people tend
to be more vocal and facts tend to be a little blurry. . . . [The police]
want to confirm some of the information coming in. Confirm, ladies and
gentlemen. The police never confirmed what [the victim] had to say. They
never confirmed her story.’’
7
Instruction 2.6-14, titled ‘‘Adequacy of Police Investigation,’’ was
approved by the Judicial Branch’s Criminal Jury Instruction Committee on
November 6, 2014. It provides: ‘‘You have heard some arguments that the
police investigation was inadequate and that the police involved in this case
were incompetent. The issue for you to decide is not the thoroughness of
the investigation or the competence of the police. The only issue you have
to determine is whether the state, in light of all the evidence before you,
has proved beyond a reasonable doubt the defendant is guilty of the count[s]
with which (he/she) is charged.’’ Connecticut Criminal Jury Instructions 2.6-
14, available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited
January 21, 2021).
The commentary to instruction 2.6-14 provides: ‘‘ ‘A defendant may . . .
rely upon relevant deficiencies or lapses in the police investigation to raise
the specter of reasonable doubt, and the trial court violates his right to a
fair trial by precluding the jury from considering evidence to that effect.’
State v. Collins, 299 Conn. 567, 599–600 [10 A.3d 1005] (finding that such
an instruction as this does not preclude the jury from considering the evi-
dence of the police investigation as it might relate to any weaknesses in
the state’s case) [cert. denied, 565 U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d
193 (2011)]. ‘Collins does not require a court to instruct the jury on the
quality of police investigation, but merely holds that a court may not preclude
such evidence and argument from being presented to the jury for its consider-
ation.’ State v. Wright, 149 Conn. App. 758, 773–74, [89 A.3d 458] cert. denied,
312 Conn. 917 [94 A.3d 641] (2014).’’ Connecticut Criminal Jury Instructions,
supra, 2.6-14, commentary.
8
In Collins, the trial court instructed the jury in relevant part: ‘‘Now, you
have heard in the course of arguments by counsel discussion as to whether
the police conducted a thorough investigation. You have also heard some
discussion about the competency of the police in this arrest. Ladies and
gentlemen, this question might be a matter of opinion, but the state has
put its evidence before you and the defendant was entitled to make an
investigation and put his evidence before you also. And, of course, not only
the state but also the defense has put on evidence on behalf of the defendant.
I say to you, ladies and gentlemen, that the ultimate issue before you is not
the thoroughness of the investigation or the competence of the police. The
ultimate issue you have to . . . determine is whether the state in light of
all the evidence before you has proved beyond a reasonable doubt that the
defendant is guilty on one or more of the counts for which he is charged.’’
(Emphasis omitted; internal quotation marks omitted.) State v. Collins,
supra, 299 Conn. 595.
9
In Williams, the trial court instructed the jury in relevant part: ‘‘Now,
you have heard in the course of arguments discussion as to whether the
police conducted a thorough search. You have also heard some discussion
about the competency of the police in this arrest. Now, ladies and gentlemen,
this question might be a matter of opinion, but the [s]tate has put its evidence
before you, and the defense was entitled to make an investigation and put
its evidence before you also, and, of course, not only the [s]tate but also
the defense has put on evidence on behalf of the defendant. I say to you,
ladies and gentlemen, that the issue before you is not the thoroughness of
the investigation or the competence of the police. This issue you have to
determine is whether the [s]tate in the light of all the evidence before you
has proved beyond a reasonable doubt that the defendant is guilty on one
or both counts with which he is charged.’’ (Internal quotation marks omit-
ted.) State v. Williams, supra, 169 Conn. 335 n.3.
10
In Nieves, the trial court instructed the jury in relevant part: ‘‘During
the course of the case, you’ve heard some discussion or questioning as to
whether the police conducted a thorough investigation and the competency
of the police in this case. The issue before you in this case is not the
thoroughness of the investigation or the competence of the police. The issue
you have to determine is whether the state, in light of the evidence before
you, has proven beyond a reasonable doubt [that] the defendant is guilty
of the crimes charged.’’ (Internal quotation marks omitted.) State v. Nieves,
supra, 106 Conn. App. 57.
11
In Tate, the trial court instructed the jury in relevant part: ‘‘You’ve heard
questioning regarding the thoroughness of the police investigation in this
case. This question might be a matter of opinion, but the state has put its
evidence before you, and the defense is entitled to make an investigation
and put its evidence before you also. And, of course, not only the state but
also the defense has put on evidence in behalf of the defendant. I tell you
that the issue before you is not the thoroughness of the investigation of the
responding police officer; the issue you have to determine is whether the
state, in light of all the evidence before you, has proved the defendant’s
guilt beyond a reasonable doubt as I have recited that to you. That is the
sole issue.’’ (Internal quotation marks omitted.) State v. Tate, supra, 59
Conn. App. 284.
12
Although the basis for the defendant’s deportation is unknown, we take
judicial notice of the fact that, in 2011, the defendant pleaded guilty in the
Superior Court, judicial district of Fairfield, to possession of narcotics in
violation of General Statutes § 21a-279 (a), specifically, for possession of
cocaine. See Bouchard v. State Employees Retirement Commission, 328
Conn. 345, 371 n.13, 178 A.3d 1023 (2018) (‘‘[this] court may take judicial
notice of files in other cases’’). The defendant’s conviction of possession
of cocaine, which is not challenged in this appeal, renders him permanently
inadmissible to the United States because it is a ‘‘controlled substance’’
violation. See 8 U.S.C. § 1182 (a) (2) (A) (i) (2018) (‘‘any alien convicted of
. . . (II) a violation of . . . any law or regulation of a State . . . relating
to a controlled substance (as defined in section 802 of Title 21), is inadmissi-
ble’’); 21 U.S.C. § 802 (6) (2018) (‘‘[t]he term ‘controlled substance’ means
a drug or other substance, or immediate precursor, included in schedule I,
II, III, IV, or V of part B of this subchapter’’); 21 U.S.C. § 812, schedule II
(a) (4) (2018) (‘‘coca leaves . . . cocaine . . . or any compound, mixture,
or preparation which contains any quantity of any of the substances referred
to in this paragraph’’); cf. 8 U.S.C. § 1182 (h) (2018) (‘‘[t]he Attorney General
may, in his discretion, waive the application of . . . subparagraph (A) (i)
(II) of such subsection insofar as it relates to single offense of simple
possession of 30 grams or less of marijuana’’). For the reasons provided
herein, the defendant’s permanent inadmissibility to the United States does
not alter our conclusion that we may provide him with practical relief by
ruling in his favor on the merits of the appeal.
13
‘‘[M]ootness implicates [this] court’s subject matter jurisdiction and is
thus a threshold matter for us to resolve.’’ (Internal quotation marks omit-
ted.) State v. McElveen, 261 Conn. 198, 204, 802 A.2d 74 (2002), quoting
Ayala v. Smith, 236 Conn. 89, 93, 671 A.2d 345 (1996).
14
We do not find Perez particularly persuasive in any event because, in
concluding that no collateral consequences could arise from the robbery
conviction of the petitioner, Santos Perez, due to his permanent inadmissibil-
ity stemming from an unrelated drug conviction, the Second Circuit Court
of Appeals failed to consider Perez’ eligibility for a temporary admission
waiver under 8 U.S.C. § 1182 (d) (3). See United States v. Hamdi, 432 F.3d
115, 120–21 (2d Cir. 2005) (concluding that defendant’s appeal from sentence
enhancement imposed following his guilty plea was not moot, despite his
removal and inadmissibility due to unchallenged conviction, because
enhanced sentence could impact his ability to obtain discretionary waiver
under 8 U.S.C. § 1182 (d) (3)). A waiver under 8 U.S.C. § 1182 (d) (3) ‘‘waives
nearly every ground of inadmissibility set forth in [8 U.S.C. § 1182 (a)]
for nonimmigrant applicants,’’ except ‘‘security related grounds such as
espionage, sabotage, persecution, genocide, or torture . . . .’’ D. Beach,
‘‘Waivers of Inadmissibility: Off the Beaten Path,’’ 11-01 Immigr. Briefings
1 (January, 2011). Perez was inadmissible because of a prior controlled
substance conviction; Perez v. Greiner, supra, 296 F.3d 126; but that would
not have rendered him ineligible for a waiver under 8 U.S.C. § 1182 (d) (3).
According to the United States Department of State’s Foreign Affairs
Manual, ‘‘[t]he law does not require that such waiver action be limited to
exceptional, humanitarian or national interest cases. Thus, while the exercise
of discretion and good judgment is essential, generally, consular officers
may recommend waivers for any legitimate purpose such as family visits,
medical treatment (whether or not available abroad), business conferences,
tourism, etc.’’ (Internal quotation marks omitted.) D. Beach, supra, 11-01
Immigr. Briefings 1. Similarly, the Board of Immigration Appeals has stated
that there is ‘‘no requirement that the applicant’s reasons for wishing to
enter the United States be ‘compelling.’ ’’ In re Hranka, 16 I. & N. Dec. 491,
492 (B.I.A. 1978). In determining whether to grant a waiver, three factors
must be weighed: ‘‘The first is the risk of harm to society if the applicant
is admitted. The second is the seriousness of the applicant’s prior immigra-
tion law, or criminal law, violations, if any. The third factor is the nature
of the applicant’s reasons for wishing to enter the United States.’’ (Emphasis
added.) Id. Additional considerations include the ‘‘recentness and seri-
ousness of the crime or offense, type of disability, reasons for proposed
travel to the United States, and the probable consequences of the public
interest of the [United States].’’ (Emphasis added.) D. Beach, supra, 11-01
Immigr. Briefings 1.
Accordingly, in Perez, Perez’ unchallenged controlled substance convic-
tion did not necessarily render him ineligible for a discretionary waiver
under 8 U.S.C. § 1182 (d) (3). If the robbery conviction he challenged in his
appeal was upheld, however, that conviction may have weighed against his
receiving such a waiver. See United States v. Hamdi, supra, 432 F.3d 120–21.
Because ‘‘a habeas petition challenging a criminal conviction is rendered
moot by a release from imprisonment only if it is shown that there is no
possibility that any collateral legal consequences will be imposed on the
basis of the challenged conviction’’; (internal quotation marks omitted) Perez
v. Greiner, supra, 296 F.3d 125; the potential that Perez’ challenged robbery
conviction might have adversely impacted his eligibility for a discretionary
waiver under 8 U.S.C. § 1182 (d) (3) provided a sufficient basis to avoid the
dismissal of his appeal as moot. Because the court in Perez failed to consider
the relevance of a discretionary waiver under 8 U.S.C. § 1182 (d) (3), for
which the defendant in this appeal might be eligible, we do not find its
analysis persuasive.
15
It appears, however, that, in the civil law context, reputational injury
is considered by some federal courts to be a sufficiently prejudicial collateral
consequence to prevent dismissal on mootness grounds. See, e.g., Furline
v. Blakey, 246 Fed. Appx. 813, 815 (3d Cir. 2007) (appeal of airman whose
airman’s certificate was suspended for 180 days, then reinstated, was not
moot because of possible collateral consequence of ‘‘continuing stigma’’);
In re Surrick, 338 F.3d 224, 230 (3d Cir. 2003) (attorney’s suspension from
practice of law was not moot because continuing stigma associated with
suspension constituted possible collateral consequence), cert. denied, 540
U.S. 1219, 124 S. Ct. 1509, 158 L. Ed. 2d 154 (2004); Dailey v. Vought Aircraft
Co., 141 F.3d 224, 228 (5th Cir.1998) (appeal of attorney who was disbarred
and then reinstated was not moot because even temporary disbarment is
harmful to lawyer’s reputation, and ‘‘the mere possibility of adverse collateral
consequences is sufficient to preclude a finding of mootness’’ (internal
quotation marks omitted)); Connell v. Shoemaker, 555 F.2d, 483, 486–87 (5th
Cir. 1977) (appeal by apartment owners seeking relief from military official’s
order prohibiting military personnel from renting owners’ properties for
180 days was not moot after 180 day period because of harm to owners’
reputations).
16
Morais did not testify at trial. According to testimony from Richard
Lindberg, an inspector at the Office of the State’s Attorney, the state
attempted to serve a subpoena on Morais but was unsuccessful in locat-
ing him.
17
Following Collins, the model criminal jury instruction titled ‘‘Adequacy
of Police Investigations’’ was approved by the Judicial Branch’s Criminal
Jury Instruction Committee. See footnote 7 of this opinion.
18
In Wright, this court did not consider the propriety of an investigative
inadequacy instruction because the trial court had prevented Wright from
presenting evidence of investigative inadequacy that would warrant such
an instruction. Rather, this court determined what evidentiary thresholds a
defendant must satisfy before pursuing an investigative inadequacy defense.
State v. Wright, supra, 322 Conn. 284–85 (defendant must establish relevance
of testimony offered, and trial court must determine whether probative
value of evidence exceeds risk of unfair prejudice to state).
19
‘‘The language used in the model jury instructions, although instructive
in considering the adequacy of a jury instruction . . . is not binding on
this court.’’ (Citation omitted; internal quotation marks omitted.) Snell v.
Norwalk Yellow Cab, Inc., 332 Conn. 720, 762, 212 A.3d 646 (2019). ‘‘[W]e
previously have cautioned that the . . . jury instructions found on the Judi-
cial Branch website are intended as a guide only, and that their publication
is no guarantee of their adequacy. See, e.g., State v. Reyes, 325 Conn. 815,
821–22 n.3, 160 A.3d 323 (2017) (The Judicial Branch website expressly
cautions that the jury instructions contained therein [are] intended as a
guide for judges and attorneys in constructing charges and requests to
charge. The use of these instructions is entirely discretionary and their
publication by the Judicial Branch is not a guarantee of their legal sufficiency.
. . .).’’ (Internal quotation marks omitted.) Snell v. Norwalk Yellow Cab,
Inc., supra, 762–63.
20
We agree with the defendant that the investigative inadequacy instruc-
tion upheld in Williams and Collins should be improved on to better convey,
as this court recently explained in Wright, that ‘‘[t]he inference that may
be drawn from an inadequate police investigation is that the evidence at
trial may be inadequate or unreliable because the police failed to conduct
the scientific tests or to pursue leads that a reasonable police investigation
would have conducted or investigated, and these tests or investigation rea-
sonably may have led to significant evidence of the defendant’s guilt or
innocence. A jury may find a reasonable doubt if [it] conclude[s] that the
investigation was careless, incomplete, or so focused on the defendant that
it ignored leads that may have suggested other culprits.’’ (Internal quotation
marks omitted.) State v. Wright, supra, 322 Conn. 283. Toward that end, we
encourage our trial courts going forward to utilize the following investigative
inadequacy instruction, which bears resemblance to the one utilized by the
Massachusetts courts: You have heard some testimony of witnesses and
arguments by counsel that the state did not (mention alleged investigative
failure: e.g., conduct certain scientific tests, follow standard procedure,
perform a thorough and impartial police investigation, etc.) in this case.
This is a factor that you may consider in deciding whether the state has
met its burden of proof in this case because the defendant may rely on
relevant deficiencies or lapses in the police investigation to raise reasonable
doubt. Specifically, you may consider whether (relevant police investigative
action) would normally be taken under the circumstances, whether, if (that/
those) action(s) (was/were) taken, (it/they) could reasonably have been
expected to lead to significant evidence of the defendant’s guilt or innocence,
and whether there are reasonable explanations for the omission of (that/
those) action(s). If you find that any omissions in the investigation were
significant and not reasonably explained, you may consider whether the
omissions tend to affect the quality, reliability, or credibility of the evidence
presented by the state to prove beyond a reasonable doubt that the defendant
is guilty of the count(s) with which (he/she) is charged. The ultimate issue
for you to decide, however, is whether the state, in light of all of the evidence
before you, has proved beyond a reasonable doubt that the defendant is guilty
of the count(s) with which (he/she) is charged. See, e.g., Criminal Model Jury
Instructions for Use in the District Court, Instruction 3.740, available at
https://www.mass.gov/doc/3740-omissions-in-police-investigations/download
(last visited January 21, 2021).