State v. Calhoun ( 2023 )

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STATE OF CONNECTICUT v.
CHRISTOPHER CALHOUN
(SC 20497)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Ecker and Alexander, Js.
Syllabus
Convicted of murder in connection with the shooting death of the victim,
the defendant appealed to this court. The defendant had been arrested
several years after the shooting, after two individuals, C and K, came
forward and claimed to have witnessed the defendant shoot the victim.
At trial, the state’s case rested almost entirely on the testimony of C
and K, who were incarcerated both at the time of trial and when they
first approached the police with information about the shooting. The
trial court admitted into evidence the entirety of the cooperation agree-
ments that C and K had with the state, and the prosecutor used those
agreements to rehabilitate C and K during their respective direct exami-
nations, before either witness had been impeached. Defense counsel
thoroughly cross-examined C and K, including about their cooperation
agreements, but the trial court precluded defense counsel from ques-
tioning K about certain details of a prior arrest, which occurred after
K testified before the grand jury in the present case and while he was
released on parole. The trial court also declined defense counsel’s
request for a jailhouse informant instruction with respect to C and K
and, instead, gave the jury a special credibility instruction in which it
noted that C and K had entered into cooperation agreements and urged
the jury to examine their testimony with ‘‘careful scrutiny’’ and ‘‘particu-
lar care . . . .’’ On the defendant’s appeal from the judgment of convic-
tion, held:
1. The trial court gave an adequate special credibility instruction and did
not abuse its discretion in declining to give the requested jailhouse
informant instruction:
Although the trial court’s instruction was not in the exact form of the
requested jailhouse informant instruction, the substance of the requested
instruction was very similar to the instruction that the jury was given,
the jury having been cautioned that C and K were receiving benefits
from the state in return for testifying, that they might have a motive to
lie, and that their testimony therefore should be examined with ‘‘careful
scrutiny’’ and ‘‘particular care,’’ and, of all the witnesses who testified,
the trial court singled out C and K as the only individuals whose credibility
warranted such treatment.
It was no consequence that the instruction the jury was given did not
explicitly mention that C and K were incarcerated or identify them as
jailhouse informants because, in light of the admission into evidence of
the cooperation agreements, there was no need to warn the jury about
the risk that C and K might be expecting a benefit from the state when
the jury knew that they were expecting such a benefit.
Moreover, the requested instruction was poorly suited to jailhouse infor-
mants who, like C and K, were also eyewitnesses to the charged crime,
as the requested instruction invited the jury to consider the extent to
which the witness’ testimony contained details known only by the perpe-
trator and the extent to which the details of the witness’ testimony could
be obtained from a source other than the defendant.
2. The trial court did not abuse its discretion in admitting the entirety of
C’s and K’s cooperation agreements into evidence or in permitting the
prosecutor to use those agreements during direct examination, before
the witnesses had been impeached:
The provisions in the cooperation agreements providing that, if the state’s
attorney’s office or a judge determines that the witness is lying, then
the witness will be subject to prosecution, did not serve to improperly
vouch for the credibility of C and K, as those provisions did not imply
that the state or the judge knew that the witnesses were telling the truth
or that the state or the judge possessed information or means, unavailable
to the jury, to determine the veracity of the witnesses’ testimony, and
the references to prosecution in those provisions were truthfully stated
and were not gratuitously repeated in the remainder of the cooperation
agreements.
Moreover, because defense counsel made it clear that she intended to
cross-examine C and K about the cooperation agreements, it was within
the trial court’s discretion to permit the prosecutor to use the cooperation
agreements to rehabilitate C and K in advance, during direct examination.
3. The trial court did not abuse its discretion in precluding defense counsel
from cross-examining K about certain details of his prior arrest:
The trial court properly allowed cross-examination of K on the fact that
he gave the police a false name when, prior to his arrest, the police pulled
over the car that he was driving, as that fact had special significance
and directly related to K’s truthfulness, whereas it properly precluded
cross-examination with respect to other details of K’s arrest, including
the fact that his car smelled of marijuana and that he resisted arrest,
neither of which related directly to K’s truthfulness.
Notwithstanding the defendant’s argument that evidence regarding the
smell of marijuana coming from K’s car and his resisting arrest contra-
dicted his statement to the grand jury that he intended to give up his
‘‘criminal lifestyle,’’ the link between that evidence and K’s truthfulness
was indirect at best, and the trial court reasonably could have concluded
that any limited probative value of this evidence was outweighed by the
potential to sidetrack the trial.
Moreover, there was no merit to the defendant’s argument that the
evidence surrounding the traffic stop was relevant to show that K would
do anything, including falsely implicating the defendant, to avoid
returning to prison, because, although the jury heard testimony that K
gave a false name to the police when he was pulled over, and defense
counsel was free to argue that giving false testimony was not so different,
such an analogy did not extend as readily to the allegations involving
marijuana and resisting arrest, and such an inference would have been
too uncertain to require the trial court to admit such evidence.
Argued October 13, 2022—officially released March 7, 2023
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of New Haven and tried to the jury
before Alander, J.; verdict and judgment of guilty, from
which the defendant appealed to this court. Affirmed.
Kevin Smith, assigned counsel, with whom, on the
brief, was Norman A. Pattis, assigned counsel, for the
appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, former
state’s attorney, Kevin M. Black, Jr., former special
deputy assistant state’s attorney, and Seth Garbarsky,
senior assistant state’s attorney, for the appellee (state).
Opinion
ECKER, J. Isaiah Gantt was shot and killed in New
Haven’s Church Street South housing project in April,
2011. The crime went unsolved for many years, until
two men, Eric Canty and Jules Kierce, came forward
claiming to have been eyewitnesses to Gantt’s murder.
Both men identified the defendant, Christopher Cal-
houn, as Gantt’s killer. The defendant was arrested in
2018 and charged with murder under General Statutes
§ 53a-54a (a). The outcome of the trial rested largely
on the jury’s assessment of the credibility of Canty and
Kierce. Their motivations were subject to impeachment
because each of them was incarcerated when they first
contacted the state about the case, and they each
received consideration from the state in return for testi-
fying pursuant to cooperation agreements. The jury
returned a verdict finding the defendant guilty of mur-
der.1 The defendant claims on appeal that the trial court
made three erroneous rulings requiring reversal, namely,
(1) declining to give the jury a jailhouse informant
instruction, (2) admitting into evidence the entirety of
Canty’s and Kierce’s cooperation agreements, and (3)
not allowing defense counsel to cross-examine Kierce
regarding certain details of a prior arrest. We affirm
the judgment of conviction.
The jury reasonably could have found the following
facts. Gantt and the defendant both sold drugs in the
Church Street South housing project. Although they had
grown up as friends, they fell out when Gantt began to
accuse the defendant of stealing customers. The eve-
ning Gantt was killed, he openly confronted the defen-
dant about stolen customers. Canty, a younger friend
of the defendant, was present for this argument. The
defendant told Canty to go home, but he hid nearby
instead to see what would happen next.
Around this time, Kierce, a mutual friend of Gantt
and the defendant, received a series of phone calls from
Gantt. Gantt sounded worried and asked Kierce to bring
him a handgun that was hidden in a nearby apartment.
As he spoke with Gantt, Kierce could hear an argument
in the background. Kierce did not immediately get the
gun for Gantt but went to see what was happening. He
found Gantt and the defendant standing together with
Montrell ‘‘Wooly’’ Dobbs. The atmosphere was tense.
Kierce asked Gantt if he still needed the gun. Gantt said
he did, so Kierce went to retrieve it for him.
Kierce returned just in time to see the defendant
shoot Gantt multiple times in the back. Canty saw the
same thing from his hiding place in the alley. When the
police arrived, Gantt had already died from his gunshot
wounds. Later that night, Kierce encountered the defen-
dant again, at the apartment of Latisha Parker. Although
the two did not talk about the shooting, Kierce saw the
defendant empty shells out of a gun and dump them
into a toilet. A few days later, Canty also encountered
the defendant, who at that time admitted to Canty that
he had shot Gantt.
At trial, the state’s case rested almost entirely on the
testimony of Canty and Kierce. There was little other
evidence inculpating the defendant. Ballistics and medi-
cal evidence confirmed that Gantt had been shot and
killed by a .22 caliber revolver in a manner consistent
with the testimony of Canty and Kierce. One witness
saw the defendant, Gantt, and Dobbs together on the
evening of the murder and sensed that ‘‘something was
up.’’ Another testified that the defendant had told her
that Gantt was making too much money selling drugs
and that Gantt had to stop or the defendant would
make him stop. Otherwise, the case depended on the
testimony of the two eyewitnesses, Canty and Kierce.
Both Canty and Kierce were thoroughly cross-exam-
ined by defense counsel. The jury learned that they
each had criminal records and that each had entered
into a cooperation agreement with the state. These
agreements were admitted into evidence. The jury also
heard testimony from the defense’s investigator. Accord-
ing to this testimony, Kierce had contacted the defense
team and told them that he was lying to the state and
had not seen the defendant shoot Gantt.
Ultimately, the jury needed to decide whether to
credit the testimony of Canty and Kierce. The jury’s
verdict speaks for itself. This appeal is narrowly focused
on three issues: (1) the trial court’s failure to give the
jury a jailhouse informant instruction; (2) its admission
of the cooperation agreements; and (3) its refusal to
allow cross-examination on the details of a prior arrest
of Kierce.2
I
THE JAILHOUSE INFORMANT INSTRUCTION
The defendant claims that the trial court abused its
discretion by denying defense counsel’s request for a
jailhouse informant instruction. Specifically, he con-
tends that Canty and Kierce are jailhouse informants
and that a special credibility instruction was therefore
required by our holdings in State v. Patterson, 276 Conn.
452, 469, 886 A.2d 777 (2005), and its progeny. We con-
clude that the trial court provided an adequate special
credibility instruction under the circumstances of
this case.
A jailhouse informant is any incarcerated witness
who testifies to inculpatory statements made to him
by the defendant. See State v. Bruny, 342 Conn. 169,
204–205, 269 A.3d 38 (2022); see also State v. Jones,
337 Conn. 486, 501, 508, 254 A.3d 239 (2020). We have
recognized that such testimony should be subject to a
higher degree of scrutiny for three reasons: ‘‘(1) [the
witness] ha[s] an unusually strong motive to [lie] . . .
(2) confession evidence may be the most damaging
evidence of all . . . and (3) false confessions are easy
to fabricate, but difficult to subject to meaningful cross-
examination . . . . [F]alse confession evidence from
informants is the leading factor associated with wrong-
ful convictions in capital cases and a major factor con-
tributing to wrongful convictions in noncapital cases.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) State v. Jones, supra, 501–502. In
Patterson, we held that the trial court must warn the
jury that jailhouse informant testimony should ‘‘be
reviewed with particular scrutiny and weighed . . .
with greater care than the testimony of an ordinary
witness.’’ (Internal quotation marks omitted.) State v.
Patterson, supra, 276 Conn. 465.
We will assume for purposes of this opinion that
both Canty and Kierce should have been considered
jailhouse informants.3 We nonetheless conclude that the
trial court gave an adequate special credibility instruction
for both witnesses and did not abuse its discretion by
declining to give the instruction requested by defense
counsel. Although the trial court’s instruction was not
in the exact form of the jailhouse informant instruction
requested, it was good enough to warn the jury that
Canty and Kierce had a powerful motivation to lie and
that their testimony should be reviewed with scrutiny
and weighed with greater care than that of an ordinary
witness.
‘‘Our review of [an omitted jury instruction] requires
that we examine the [trial] court’s entire charge to deter-
mine whether it is reasonably possible that the jury
could have been misled by the omission of the requested
instruction. . . . If a requested charge is in substance
given, the court’s failure to give a charge in exact confor-
mance with the words of the request will not constitute
a ground for reversal.’’ (Internal quotation marks omit-
ted.) State v. Dehaney, 261 Conn. 336, 368, 803 A.2d
267 (2002), cert. denied, 537 U.S. 1217, 123 S. Ct. 1318,
154 L. Ed. 2d 1070 (2003). ‘‘[T]he language used in the
model jury instructions, although instructive . . . is
not binding on this court.’’ (Internal quotation marks
omitted.) State v. Ortiz, 343 Conn. 566, 599, 275 A.3d
578 (2022).
In this case, the trial court gave the following special
credibility instruction: ‘‘Two of the witnesses in this
case, Eric Canty and Jules Kierce, testified that they
entered into cooperation agreements with the state’s
attorney’s office . . . . I must caution you to give care-
ful scrutiny to the testimony of each of these witnesses
in determining their credibility and the weight to give
their testimony in this case. . . . In weighing their testi-
mony, you may consider whether either witness’ testi-
mony has been influenced by that agreement. You must
therefore look with particular care at the testimony of
such a witness before deciding to accept it as a basis
for convicting the defendant in a criminal prosecution.’’
The court also gave the standard general credibility
instruction, explaining that, in assessing the credibility
of each witness, ‘‘you may take into account a number
of factors, including . . . (1) was the witness able to
see or hear or know the things about which that witness
testified? (2) How well was the witness able to recall
and describe those things? (3) What was the witness’
manner and demeanor while testifying? (4) Did the wit-
ness have an interest in the outcome of this case? (5)
How much time passed before the witness came for-
ward with the information? (6) Did the witness have
any bias or prejudice concerning any party or any matter
involved in the case? (7) How reasonable was the wit-
ness’ testimony in light of all the evidence in the case?
And (8) was the witness’ testimony contradicted by
what that witness said or did at another time, or contra-
dicted by the testimony of other witnesses or by other
evidence?’’
Not given by the court was the jailhouse informant
instruction requested by defense counsel: ‘‘[The]
[s]tate’s witnesses, Jules Kierce and Eric Canty, who
are currently incarcerated, testified in this case as infor-
mants. At the time these witnesses first provided infor-
mation to [the] police, they were also incarcerated for
crimes unrelated to the crime in this case. When an
informant testifies, as Mr. Kierce and Mr. Canty did
here, their testimony must be examined with greater
scrutiny than the testimony of an ordinary witness. You
should determine the credibility of these witnesses in
light of any motive that they may have [had] for testi-
fying falsely and inculpating the accused. In considering
the testimony of these two witnesses, you may consider
[1] [w]hether the informants have received, been
offered, or reasonably expect anything from the state
. . . in exchange for their testimony that would moti-
vate them to testify falsely against the defendant, [2]
[a]ny belief they may have that these benefits are contin-
gent [on] their ability to produce evidence of criminal
conduct, [3] [a]ny other case in which the informants
testified or offered statements against another individ-
ual, and whether the informants received any deal,
promise, inducement or benefit in exchange for their
testimony or statements, [4] [w]hether the informants
have ever changed their testimony/statement, [5] [t]he
extent to which their testimony is confirmed by other
evidence, [6] [t]he specificity of their testimony, [7] [t]he
extent to which their testimony contains details known
only by the perpetrator, [8] [t]he extent to which the
details of their testimony could be obtained from a
source other than the defendant, [9] [t]heir criminal
record[s], and [10] [t]he circumstances under which
they initially provided the information to the police or
prosecutor.’’
The substance of this requested instruction is very
similar to the instruction that the jury in fact heard.
The jury was cautioned that Canty and Kierce were
receiving benefits from the state in return for testifying,
that they might have a motive to lie, and that their
testimony should therefore be examined with ‘‘careful
scrutiny . . . .’’ This cautionary instruction took on
special force because only Canty and Kierce, of all the
witnesses who testified at trial, were singled out as
individuals whose credibility warranted ‘‘careful scru-
tiny’’ and ‘‘particular care . . . .’’ The jury also was
encouraged to consider the source of the witnesses’
knowledge, their potential bias, whether their testimony
was corroborated by other witnesses, and whether they
contradicted themselves.
There are only two material respects in which the
content of the instruction the defendant requested went
beyond the instruction he received. In the circum-
stances of this case, we conclude that neither difference
misled the jury.
First, the requested jailhouse informant instruction
explicitly mentions that Canty and Kierce are incarcer-
ated criminals and identifies them as jailhouse infor-
mants. In the absence of a cooperation agreement, these
facts are important because they suggest that the wit-
nesses might be hoping for favorable treatment from
the state in return for their testimony. In the context
of this case, however, there was no need to warn the
jury about the risk that Canty and Kierce might be
expecting a benefit from the state because the jury
knew that Canty and Kierce were expecting a benefit
from the state. The witnesses had written cooperation
agreements that had been admitted into evidence, and
they each had been subject to extensive cross-examina-
tion regarding, among other things, the benefits they
hoped to receive from the state in exchange for their
testimony. In this respect, the trial court’s instructions
provided a stronger warning than the jailhouse infor-
mant instruction the defendant requested. The former
reminded the jury of the reality that Canty and Kierce
expected to benefit by their testimony while the latter
would have merely warned about the possibility of that
expectation.
Second, the requested jailhouse informant instruc-
tion invites the jury to consider ‘‘[t]he extent to which
[the witnesses’] testimony contains details known only
by the perpetrator’’ and ‘‘[t]he extent to which the
details of their testimony could be obtained from a
source other than the defendant . . . .’’ This part of
the jailhouse informant instruction is well suited to
most jailhouse informants, but it is poorly suited to a
jailhouse informant who is also an eyewitness. Canty
and Kierce both claimed to be eyewitnesses, so it would
make no sense to ask the jury to consider whether the
details of their testimony could be known only by the
defendant. The trial court was right not to give this part
of the requested instruction. Jury instructions are not
‘‘one size fits all formulations,’’ which is why trial courts
must sometimes modify jury instructions to meet the
needs of a case. (Internal quotation marks omitted.)
State v. Ortiz, supra, 343 Conn. 600.
When the trial court’s jury instructions are read as a
whole, and taken in the context of the case, it becomes
clear that the substance of the requested jailhouse infor-
mant instruction was given to the jury. Canty and Kierce
both had cooperation agreements with the state pursu-
ant to which they expected to benefit from their testi-
mony, they were both eyewitnesses to the actual crime
and could provide detailed testimony about what they
observed, and they were both thoroughly cross-exam-
ined on the details they witnessed, on their criminal
records, and on their cooperation agreements. In these
particular circumstances, the trial court did not err in
providing a cooperating witness instruction along with
a general credibility instruction, instead of the jailhouse
informant instruction requested by defense counsel.
II
THE COOPERATION AGREEMENTS
The defendant next claims that the trial court abused
its discretion by admitting the entirety of Canty’s and
Kierce’s cooperation agreements into evidence. These
agreements provide that Canty and Kierce are obligated
to tell the truth and may be prosecuted if they lie.
The defendant contends that these provisions of the
cooperation agreements constitute vouching for the
witnesses and should not have been admitted. The
defendant also contends that, even if these provisions
could have been used to rehabilitate Canty and Kierce,
the trial court abused its discretion in permitting the
prosecutor to use them during direct examination,
before the witness had been impeached. We disagree.
Whether and when to admit the text of a cooperation
agreement presents a sensitive issue for a trial court.
Understanding the terms of a cooperation agreement
can help the jury to assess the credibility of the witness.
See Marquez v. Commissioner of Correction, 330 Conn.
575, 610–13, 198 A.3d 562 (2019) (Palmer, J., concur-
ring). However, it is also a document authored by the
state, and, as we have recently observed, trial courts
must ensure that prosecutors do not gain an unfair
advantage from the way the cooperation agreement is
drafted. See State v. Flores, 344 Conn. 713, 736, 740,
281 A.3d 420 (2022).
Our case law has established a few rules to help guide
trial courts undertaking this balancing act. First, it is
well established that the prosecutor may use the text
of a witness’ cooperation agreement to rehabilitate that
witness after they have been impeached on the basis
of their cooperation with the state. See id., 738. Second,
if defense counsel indicates that they intend to cross-
examine the witness regarding the benefits the witness
may receive from the state in return for testifying, then
the trial court has the discretion to permit the prosecu-
tor to use the text of the agreement to rehabilitate the
witness in advance, during direct examination, without
waiting for defense counsel to impeach the witness.
See id. Third, and regardless of whether the witness is
impeached, the text of the cooperation agreement may
not be used by the prosecutor to vouch for the witness.
See id., 745–49.
Vouching occurs when the state expressly or impliedly
attests to the credibility of a witness. See, e.g., United
States v. Roundtree, 534 F.3d 876, 880 (8th Cir. 2008).
Although the state would not put on a witness it did
not believe, the state’s confidence in its witnesses may
not be stated or implied to the jury. The jurors’ assess-
ment of a witness’ credibility should depend on their
impression of the witness, not their faith in the probity
of the state. Federal courts have identified several ways
in which the text of a cooperation agreement might
constitute impermissible vouching: (1) if the text in any
way suggests that the prosecutor knows or believes
that the witness is telling the truth; see United States
v. Certified Environmental Services, Inc., 753 F.3d 72,
86–88 (2d Cir. 2014); (2) if the text in any way suggests
the existence of facts outside the record that support
the witness’ version of events; see United States v.
Benitez-Meraz, 161 F.3d 1163, 1167 (8th Cir. 1998); or
(3) if the text in any way suggests that the state has
the means of determining whether the witness is lying
and will use those means to ensure that the witness
tells the truth. See United States v. Bowie, 892 F.2d
1494, 1498–99 (10th Cir. 1990); see also State v. Flores,
supra, 344 Conn. 745–48. Vouching in any of these forms
can never be presented to the jury.
Closely related to vouching is the inclusion of gratu-
itous references to the witness’ obligation to tell the
truth, or to the possible consequences of lying. Such a
reference is gratuitous if it is repetitive or goes beyond
simply memorializing the agreement between the wit-
ness and the state. We have noted that gratuitous refer-
ences of this kind may constitute vouching in some
cases. See State v. Flores, supra, 344 Conn. 749. More-
over, because gratuitous references do not shed any
new light on the agreement between the witness and
the state, their probative value is negligible and out-
weighed by their prejudicial effect. To avoid this danger,
‘‘the state must take care in drafting its cooperation
agreements, and trial courts must carefully examine
their language before admitting them fully into evi-
dence.’’ Id., 736.
The defendant contends that the following language,
contained in both Canty’s and Kierce’s cooperation
agreements, constitutes vouching: ‘‘Should it reason-
ably be determined by a judge of the Superior Court
or the state’s attorney’s office that [the witness] has
given false, incomplete or misleading testimony or
information . . . he shall thereafter be subject to pros-
ecution for any state criminal offense of which this
office has knowledge, including, but not limited to . . .
perjury and hindering prosecution.’’ We disagree
because we do not consider this provision to be vouch-
ing.
The provision states that, if the state, or a judge,
determines that the witness is lying, then the witness
will be subject to prosecution. As written, the provision
does not imply that the state or judge knows that the
witness presently is telling the truth, or that they pos-
sess information or means, unavailable to the jury, to
determine the veracity of the witness’ testimony. Although
conditional statements, if not carefully drafted, may
vouch for a witness, this provision of the cooperation
agreements does not do so. Nor do we consider the
statement regarding the consequences of lying—that
the witness will be subject to prosecution—to be gratu-
itous as drafted. A cooperation agreement may refer to
the consequences of lying, as long as those consequences
are accurately stated and not needlessly repeated. See
State v. Flores, supra, 344 Conn. 748–49. The reference
to prosecution is truthfully stated and is not gratuitously
repeated in the rest of the cooperation agreement.
Taken as a whole, therefore, the trial court did not abuse
its discretion by admitting these cooperation agree-
ments into evidence.
We further conclude that the trial court did not abuse
its discretion by permitting the prosecutor to use the
cooperation agreements to fortify the credibility of
Canty and Kierce during direct examination, before they
were impeached by defense counsel. As we held in
Flores, if defense counsel makes it clear that they intend
to cross-examine a witness on that witness’ cooperation
agreement, then the trial court has discretion to permit
the state to use the text of the cooperation agreement
to rehabilitate the witness in advance, during direct
examination.4 See id., 738. Defense counsel in this case
made it clear that she intended to cross-examine Canty
and Kierce on their cooperation agreements. The trial
court therefore did not abuse its discretion in permitting
the prosecutor to use the cooperation agreements dur-
ing the direct examinations of Canty and Kierce.
III
CROSS-EXAMINATION ON PRIOR MISCONDUCT
Lastly, the defendant contends that the trial court
abused its discretion in not allowing defense counsel
to cross-examine Kierce about the details of a prior
arrest.5 The following factual background is relevant to
this claim. Two years before trial, Kierce testified to
the grand jury about the defendant’s role in the murder.
In this testimony, Kierce stated that he had come for-
ward belatedly because he ‘‘wanted to do the right
thing,’’ he ‘‘no longer wanted to be associated with the
criminal lifestyle,’’ and he ‘‘wanted to make a clean
break . . . .’’ After his grand jury testimony, Kierce
was released on parole. He violated parole by
absconding from a halfway house and was later arrested
during a traffic stop and returned to prison. At trial,
defense counsel wanted to ask Kierce about the details
of the traffic stop that lead to his capture and return
to prison. Specifically, defense counsel wanted the jury
to hear that Kierce initially refused to pull his car over
when signaled by the police, that there was an odor of
marijuana coming from Kierce’s car, that Kierce initially
gave a false name, and that he resisted arrest.
Outside the presence of the jury, defense counsel
argued that all these details were appropriate subjects
for cross-examination, because they showed that Kierce
would do anything to avoid returning to prison and that
he was being untruthful when he told the grand jury
that he was giving up his ‘‘criminal lifestyle.’’ The trial
court ruled that defense counsel could ask Kierce about
whether he was pulled over and whether he gave a false
name to the police. The jury also heard from Kierce
that he was returned to prison after being pulled over
because he had absconded from the halfway house.
The court did not allow defense counsel to ask about
the other details of the arrest. We conclude that it was
within the trial court’s discretion to make this eviden-
tiary ruling.
‘‘The law in Connecticut on impeaching a witness’
credibility provides that a witness may be cross-exam-
ined about specific acts of misconduct that relate to
his or her veracity.’’ State v. Annulli, 309 Conn. 482,
492, 71 A.3d 530 (2013). However, ‘‘[t]he right to cross-
examine a witness concerning specific acts of miscon-
duct is limited in three distinct ways. First, cross-exami-
nation may . . . extend [only] to specific acts of mis-
conduct other than a felony conviction if those acts
bear a special significance [on] the issue of veracity
. . . . Second, [w]hether to permit cross-examination
as to particular acts of misconduct . . . lies largely
within the discretion of the trial court. . . . Third,
extrinsic evidence of such acts is inadmissible.’’ (Inter-
nal quotation marks omitted.) State v. Colon, 272 Conn.
106, 206, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848,
126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); see Conn. Code
Evid. § 6-6 (b), commentary.
Kierce was subject to extensive cross-examination
on his criminal background, his possible bias, and his
prior inconsistent statements. On the subject of the
traffic stop, defense counsel was permitted to cross-
examine Kierce on the fact that he was pulled over and
the fact that he provided a false name. The fact that
Kierce gave a false name to the police has special signifi-
cance for his truthfulness, and the trial court was cor-
rect to allow cross-examination on that fact. By con-
trast, the other details of Kierce’s arrest—the
allegations that he pulled over slowly, smelled of mari-
juana, and resisted arrest—do not directly relate to his
truthfulness. See, e.g., State v. Ortiz, supra, 343 Conn.
588; Vogel v. Sylvester, 148 Conn. 666, 675–76, 174 A.2d
122 (1961).
The defendant argues that these facts contradict
Kierce’s statement to the grand jury that he intended
to give up his ‘‘criminal lifestyle.’’ Although the trial
court may have acted within its discretion had it allowed
the sought after cross-examination, it did not abuse its
discretion in drawing the line where it did by prohibiting
testimony about the smell of marijuana and allegations
of resisting arrest. A court has discretion to exclude
evidence of prior misconduct if the relevance of that
evidence to the issue of veracity is outweighed by its
tendency to delay or confuse the litigation. See State
v. Annulli, supra, 309 Conn. 494–95. Other than provid-
ing a false name to the police, the link between the
details of the traffic stop and Kierce’s truthfulness was
indirect at best. A single arrest on such charges does
not provide compelling evidence that Kierce knowingly
misled the grand jury. The excluded details would have
added little to the jury’s overall impression of Kierce’s
truthfulness, which was subject to extensive impeach-
ment by defense counsel on other grounds. The trial
court reasonably could have concluded that any limited
probative value was outweighed by the potential to
sidetrack the trial.
For the same reasons, we reject the defendant’s claim
that the evidence surrounding the traffic stop was rele-
vant to show that Kierce would do anything—including
falsely implicating the defendant—to avoid returning
to prison. The jury heard that Kierce gave a false name
to the police when he was pulled over. The defense
was free to argue that giving false testimony was not
so different. But the analogy does not extend as readily
to the other allegations of wrongdoing involving mari-
juana and resisting arrest. That inference is too uncer-
tain to require the trial court to admit such evidence.
See, e.g., State v. Pinnock, 220 Conn. 765, 782–83, 601
A.2d 521 (1992) (trial court did not abuse its discretion
by precluding cross-examination on details of cooperat-
ing witness’ prior conviction); State v. Moye, 214 Conn.
89, 95–97, 570 A.2d 209 (1990) (trial court did not abuse
its discretion in concluding that misconduct evidence
relating to witness’ failure to appear and respond to
subpoena showed witness’ fear of committing perjury
and, therefore, was relevant to his credibility). We con-
clude that there was no abuse of discretion in limiting
the cross-examination on the details of the traffic stop.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant was sentenced to forty-five years of incarceration.
2
The defendant appealed directly to this court pursuant to General Stat-
utes § 51-199 (b) (3).
3
In Bruny, we distinguished between jailhouse informants’ testimony
about statements made by the defendant, on the one hand, and jailhouse
informants’ testimony about their observations of events relating to the
crime, on the other. See State v. Bruny, supra, 342 Conn. 205–206. We held
that a special credibility instruction was mandatory for the former but not
for the latter. Id. In the present case, Canty testified about both his own
eyewitness observations at the time of the murder and a statement the
defendant made to him a few days later. See State v. Jones, supra, 337
Conn. 508 and n.14 (requiring credibility instruction for jailhouse informant’s
testifying both to statements made by defendant and observed events).
The parties dispute whether Kierce’s testimony included more than his
eyewitness observations during the events leading up to the murder. There
is no need to resolve this dispute because we assume, arguendo, that Canty
and Kierce both should have been treated as jailhouse informants. Our
decision to do so does not alter the definition of jailhouse informants set
out in Bruny and Jones.
4
Flores was not decided when this trial occurred, but it is nevertheless
controlling on appeal. See, e.g., State v. Elias G., 302 Conn. 39, 45, 23 A.3d
718 (2011).
5
The defendant frames this claim as an evidentiary issue, not a constitu-
tional violation.