State v. Ortiz ( 2014 )

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STATE OF CONNECTICUT v. AKOV ORTIZ
(SC 18946)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.
Argued January 13—officially released July 15, 2014
Pamela S. Nagy, assigned counsel, for the appel-
lant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Peter A. McShane, state’s
attorney, and Timothy J. Liston, former state’s attor-
ney, for the appellee (state).
Opinion
ZARELLA, J. The defendant, Akov Ortiz, appeals, fol-
lowing our grant of certification, from the judgment
of the Appellate Court, which affirmed his conviction,
rendered after a jury trial, of tampering with a witness
in violation of General Statutes § 53a-151 (a), criminal
trespass in the first degree in violation of General Stat-
utes § 53a-107 (a) (1), and carrying a pistol without a
permit in violation of General Statutes § 29-35 (a). On
appeal, the defendant claims that § 53a-151 (a) does
not proscribe attempts to prevent an individual from
speaking to the police because the statute requires the
intent to affect a witness’ conduct at an official proceed-
ing. The defendant thus contends that the evidence in
the present case was insufficient to establish his guilt
with respect to his conviction of tampering with a wit-
ness. The state argues, however, that the broad defini-
tions of ‘‘witness’’ and ‘‘official proceeding’’ encompass
attempts to prevent an individual from speaking to the
police when the defendant believes that an official pro-
ceeding is about to be instituted and the individual
probably will be called as a witness at that proceeding.
We agree with the defendant that § 53a-151 (a)
requires the intent to influence a witness’ conduct at
an official proceeding, but we also conclude that a jury
may infer this intent from the defendant’s attempt to
prevent an individual from giving a statement to the
police. See State v. Cavallo, 200 Conn. 664, 673–74, 513
A.2d 646 (1986). In the present case, the defendant went
to the home of his former girlfriend, Kristen Quinn,
with a gun and told her that, if she provided certain
information to the police, ‘‘[her] house was going to go
up in smoke . . . .’’ (Internal quotation marks omit-
ted.) State v. Ortiz, 133 Conn. App. 118, 121, 33 A.3d
862 (2012). Because the jury reasonably could have
found that the defendant believed that an official pro-
ceeding was about to be instituted and that Quinn prob-
ably would be called to testify at that proceeding, we
conclude that the jury reasonably could have inferred
that the defendant intended to induce Quinn to testify
falsely or to withhold testimony at that proceeding.
Accordingly, we affirm the judgment of the Appellate
Court.
‘‘The jury reasonably could have found the following
facts from the evidence presented. On April 14, 1997,
a burglary occurred at a residence located on Plains
Road in [the town of] Haddam. During the course of
the burglary, eight guns and a hunting knife were stolen.
On April 17, 1997, the defendant told Louis Labbadia
that he had committed the burglary. Labbadia reported
this information to the police the same day.
‘‘In July, 1998, the defendant went to the home of
´
Labbadia’s fiancee, Robin Bonita, in [the city of] Middle-
town. Bonita told the defendant that Labbadia ‘had gone
to the police . . . .’ On or about July 18, 1998, Labbadia
was reported missing by his family. His remains were
discovered on March 21, 1999, in Middletown.’’ Id., 120.
Thereafter, the police considered the defendant a
‘‘principal suspect’’ in Labbadia’s murder. As a result,
the police contacted Quinn, who, at the time, did not
provide the police with any useful information. None-
theless, a few days after Labbadia’s remains were found,
Quinn informed the defendant that she was in contact
with the police and did not want to be involved with
the defendant because she thought he might have been
involved in Labbadia’s murder.
About one week later, on April 1, 1999, Officer Ste-
phen G. Augeri and Detective Rick Spencer of the Mid-
dletown Police Department received a complaint that
there was an intoxicated person on the Arrigoni Bridge
in Middletown. The officers discovered the defendant,
intoxicated, on the bridge upon arrival at the scene.
The defendant appeared ‘‘[d]istraught’’ and ‘‘upset,’’
and, after seeing the officers, told them ‘‘to stay back
or he would jump.’’ The defendant informed the officers
that he ‘‘was tired of being accused of things, of some-
thing he didn’t do, and that anytime anything big ever
happen[ed] in Middletown, he [was] blamed for it.’’
Specifically, the defendant stated that he ‘‘had heard
that there were warrants for his arrest out through the
Middletown Police Department’’ and that ‘‘the Middle-
town police [were] trying to kill [him].’’ He also stated
that he ‘‘had already attempted to kill himself earlier
in the day by slitting his wrist,’’ and Augeri noticed that
the defendant had a cut on his left wrist. Notably, while
on the bridge, the defendant asked to speak with Detec-
tive Charles Jacobucci of the Middletown Police Depart-
ment, one of the detectives assigned to the Labbadia
murder investigation, in order to ‘‘to clear things up.’’
The defendant ultimately agreed to climb back over
the bridge railing and to go to the hospital with the
officers for an emergency psychological evaluation. At
the hospital, the defendant spoke to Officer Scott Are-
sco of the Middletown Police Department, one of the
investigators working on the Labbadia murder case,
about Labbadia. The defendant appeared very nervous.
The defendant told Aresco that he ‘‘was tired of being
accused of something he didn’t do’’ and that he ‘‘was
hearing that the police were accusing him of killing
. . . Labbadia.’’ The defendant also stated that Lab-
badia ‘‘gave a statement against him [in a criminal inves-
tigation concerning the burglary in Haddam], which he
was supposed to [recant]. He was supposed to go to
court and talk on [the defendant’s] behalf.’’ The defen-
dant informed Aresco that he ‘‘was never in the area
where . . . Labbadia’s remains were found.’’
On April 28, 1999, Jacobucci met with the defendant
at the police station. At the outset, Jacobucci informed
the defendant that ‘‘he was not in any trouble and [that]
he was free to leave at any time.’’ Jacobucci asked the
defendant for information about Labbadia, such as his
background and who might have seen him last. The
defendant informed Jacobucci that he had last seen
Labbadia in the first week of June, 1998. The defendant
also told Jacobucci that he ‘‘had to straighten something
out with [Labbadia] about going to the cops, about
shooting a cop at the Cenacle1 . . . .’’
In the following months, the defendant knew that
Quinn was speaking with the police. ‘‘On June 13, 1999,
the defendant went to [Quinn’s] home . . . and
knocked on her window. The defendant told Quinn that
he had killed Labbadia by stabbing him with a knife.
The defendant also told Quinn that he had dragged the
body into a wooded area and disposed of the knife by
throwing it in a river. The defendant indicated that,
were it not for his conversation with Bonita, Labbadia
would still be alive.’’2 State v. Ortiz, supra, 133 Conn.
App. 120. Quinn informed the defendant that he would
be in trouble if he were caught around her house
because she had been speaking with the police. After
the defendant had left, ‘‘Quinn wrote down what the
defendant had told her and showed these notes to her
mother the following day. Shortly thereafter, this infor-
mation was conveyed to [the] police.
‘‘On August 7, 1999, the defendant again went to
Quinn’s home. The defendant showed Quinn ‘a small
handgun’ and asked her to come outside. Quinn then
exited the residence through her bedroom window. The
defendant told Quinn that he had the gun for ‘insurance’
if she told ‘the cops about what he said about [Lab-
badia].’ The defendant said that if Quinn spoke to the
police ‘[her] house was going to go up in smoke . . . .’
The defendant stated that he knew where Quinn’s
grandparents lived. The defendant told Quinn that he
was going to ‘put [her down] on [her] knees, put the
gun to [her] head and scare [her] straight.’ ’’ (Footnote
omitted.) Id., 120–21. The defendant and Quinn dis-
cussed the fact that the murder weapon had not been
found, although it is unclear which party informed the
other of this information. Quinn subsequently informed
the police of these events.
‘‘At 10:30 p.m. on August 10, 1999, the defendant
called Quinn to arrange a meeting at a school near
Quinn’s home. Quinn told her mother about the call,
and her mother notified the police. [At approximately]
12:30 a.m. on August 11, 1999, the police apprehended
the defendant at the school.’’ Id., 121.
The defendant was charged with threatening, tamper-
ing with a witness, criminal trespass in the first degree,
and carrying a pistol without a permit.3 A jury found
the defendant not guilty of threatening but guilty of the
other charges.4
The defendant appealed from the judgment of convic-
tion to the Appellate Court, claiming, inter alia, that
‘‘(1) attempting to prevent someone from making state-
ments to the police cannot violate [§ 53a-151 (a), and]
(2) there was insufficient evidence that the defendant
possessed the specific intent required for conviction of
witness tampering . . . .’’ Id., 121–22. The Appellate
Court determined that the defendant’s first claim was
foreclosed by State v. Pommer, 110 Conn. App. 608,
955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d 418
(2008). State v. Ortiz, supra, 133 Conn. App. 122. The
Appellate Court also concluded that there was sufficient
evidence to support the defendant’s conviction of wit-
ness tampering, the defendant having confessed to
Quinn and having appeared to be concerned that she
would report this confession to the police. Id., 124.
The defendant then appealed to this court, and we
granted his petition for certification limited to two ques-
tions: First, ‘‘[s]hould this court overrule State v. Pom-
mer, [supra] 110 Conn. App. 608 . . . which holds that
the act of preventing someone from giving a statement
to the police falls within the witness tampering statute
. . . § 53a-151 (a)?’’ State v. Ortiz, 304 Conn. 914, 40
A.3d 785 (2012). Second, ‘‘[i]f so, did the Appellate Court
erroneously conclude that there was sufficient evidence
to sustain the defendant’s conviction of tampering with
a witness?’’ Id. After hearing the parties’ arguments and
considering the case more fully, however, we conclude
that the certified questions did not properly frame the
issues that must be resolved.5 Accordingly, we rephrase
the certified questions to conform to the issues actually
presented. See, e.g., State v. Ouellette, 295 Conn. 173,
183–84, 989 A.2d 1048 (2010). We recast the certified
questions as follows: First, ‘‘does the witness tampering
statute, § 53a-151 (a), proscribe the act of attempting
to prevent someone from giving a statement to the
police?’’ Second, ‘‘did the Appellate Court incorrectly
conclude that there was sufficient evidence to sustain
the defendant’s conviction of tampering with a wit-
ness?’’
With respect to the first certified question, the defen-
dant claims that the plain language of § 53a-151 (a)
does not proscribe attempts to prevent a witness from
speaking to the police. Statements to the police fall
outside the scope of the statute, according to the defen-
dant, because the terms ‘‘testimony’’ and ‘‘testify’’ in
§ 53a-151 (a) include only statements made in an official
proceeding. The defendant also relies on the omission
of the words ‘‘investigation,’’ ‘‘inform,’’ and ‘‘informant’’
from § 53a-151 (a), when these terms appear in the
Model Penal Code witness tampering provision from
which § 53a-151 (a) was adapted. See 2 A.L.I., Model
Penal Code and Commentaries (1980) § 241.6 (1), pp.
162–63. Finally, the defendant contends that the evi-
dence in the present case was insufficient to support
the jury’s verdict with respect to the witness tampering
charge because there was no evidence that the defen-
dant (1) believed that an official proceeding was about
to be instituted, and (2) intended to induce Quinn not
to testify. The state responds that the defendant’s inter-
pretation of § 53a-151 (a) is too limited and that the
words ‘‘witness,’’ ‘‘testify,’’ and ‘‘testimony’’ can include
attempts to prevent an individual from speaking to the
police in certain circumstances. Therefore, the state
argues that the evidence in the present case was suffi-
cient to establish that the defendant tampered with
a witness.
We conclude that, consistent with our decision in
State v. Cavallo, supra, 200 Conn. 664, a jury may con-
sider a defendant’s attempt to prevent an individual
from giving a statement to the police as evidence of his
intent to influence the testimony of that individual at
a future official proceeding. This conclusion is limited,
of course, by the statutory requirements that (1) the
defendant believe an official proceeding has been or is
about to be instituted, and (2) the individual probably
will be called to testify at that proceeding. In viewing
the evidence in the light most favorable to sustaining
the verdict, we conclude that the jury in the present
case reasonably could have found that the defendant
believed an official proceeding was about to be insti-
tuted and that the defendant intended to induce Quinn
not to testify or to withhold testimony at that proceed-
ing. Accordingly, we affirm the judgment of the Appel-
late Court.
I
We begin with the first certified question, which
requires us to determine whether attempts to prevent
individuals from speaking with the police fall within
the scope of § 53a-151 (a). The defendant contends that
§ 53a-151 (a) does not include such attempts but, rather,
applies only when the defendant directly acts to influ-
ence a witness’ testimony in an official proceeding.
Although we agree that the defendant must intend to
affect the witness’ conduct in an official proceeding,
this court previously has determined that a jury may
infer this intent from a defendant’s attempt to prevent
an individual from speaking to the police in certain
circumstances. See id., 673–74. Accordingly, we con-
clude that the jury may consider such actions as evi-
dence of the defendant’s intent to influence the future
testimony of a witness at an official proceeding.
The present case requires us to interpret § 53a-151
(a). ‘‘When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . .’’
(Internal quotation marks omitted.) State v. Jenkins,
288 Conn. 610, 620, 954 A.2d 806 (2008).
Section 53a-151 (a) provides: ‘‘A person is guilty of
tampering with a witness if, believing that an official
proceeding is pending or about to be instituted, he
induces or attempts to induce a witness to testify falsely,
withhold testimony, elude legal process summoning
him to testify or absent himself from any official pro-
ceeding.’’6 Thus, the witness tampering statute has two
requirements: (1) the defendant believes that an official
proceeding is pending or about to be instituted; and (2)
the defendant induces or attempts to induce a witness to
engage in the proscribed conduct. These requirements
serve the purpose of part XI of the Connecticut Penal
Code, in which § 53a-151 (a) is found, as they ‘‘punish
those who interfere with the courts and our system of
justice.’’ State v. Servello, 80 Conn. App. 313, 323, 835
A.2d 102 (2003), cert. denied, 267 Conn. 914, 841 A.2d
220 (2004).
The defendant argues that § 53a-151 (a) requires the
intent to induce a witness to, inter alia, testify falsely
in an official proceeding. In support of this position,
the defendant cites our decision in Cavallo, in which
this court determined that § 53a-151 (a) ‘‘applies to any
conduct that is intended to prompt a witness to testify
falsely or to refrain from testifying in an official pro-
ceeding that the perpetrator believes to be pending or
imminent.’’ (Emphasis added.) State v. Cavallo, supra,
200 Conn. 668. Although we agree with the defendant
that § 53a-151 (a) requires this intent, an examination
of the facts and reasoning of Cavallo reveals that a
jury may consider a defendant’s attempt to induce a
potential witness to lie to police investigators as evi-
dence of his intent to affect that witness’ conduct at a
future official proceeding. See id., 673–74.
In Cavallo, the defendant, John Cavallo, then a police
officer, often drank alcohol with a seventeen year old
woman in his police cruiser. Id., 665. This conduct led
to Cavallo’s discharge from the police force. Id. Cavallo
denied the allegations, however, and, ‘‘through his
union representative, notified the [police] department
[for which he worked] that he intended to bring the
matter to arbitration.’’ Id. Cavallo then told the woman
that, ‘‘if investigators questioned her about their rela-
tionship, she should tell them that she had never been
in [Cavallo’s] police cruiser and should deny any knowl-
edge of [Cavallo’s] social use of the vehicle.’’ Id. Cavallo
repeated these instructions to the woman on multiple
occasions. Id. He also informed her that ‘‘he had just
been arrested for tampering with another young woman
who was also a potential witness.’’ Id., 665 n.1.
When police investigators eventually questioned the
woman, ‘‘she claimed that she had never been in
[Cavallo’s] police cruiser and that [Cavallo] was guilty
of no misconduct.’’ Id., 666. Cavallo then called the
woman to determine whether she had disclosed ‘‘any
incriminating information’’ to the police investigators.
Id. Approximately two weeks later, Cavallo initiated
arbitration proceedings. See id. Despite her earlier, false
statement, the woman subsequently informed the police
investigators about her visits with Cavallo in his police
cruiser and Cavallo’s attempts to persuade her to deny
these activities. Id.
Cavallo claimed on appeal that § 53a-151 was void
for vagueness and that there was insufficient evidence
to support his conviction. Id. The court first concluded
that § 53a-151 was constitutional because it ‘‘plainly
warns potential perpetrators that the statute applies to
any conduct that is intended to prompt a witness to
testify falsely or to refrain from testifying in an official
proceeding that the perpetrator believes to be pending
or imminent.’’ Id., 668. The court further explained that,
consistent with the provision of the Model Penal Code
on which § 53a-151 (a) is based, § 53a-151 (a) ‘‘focuses
on the mental state of the perpetrator to distinguish
culpable conduct from innocent conduct.’’ Id., 669.
With respect to the evidentiary sufficiency issue, the
court concluded that the jury reasonably could have
found Cavallo guilty of violating § 53a-151. Id., 674. Spe-
cifically, the court reasoned that the state had satisfied
its burden of proving each element of the offense by
adducing the following evidence at trial: ‘‘[Cavallo] had
repeatedly instructed [the] woman to give a false
account [to the police investigators] of her activities
with [Cavallo] in his police cruiser. [The state] also
introduced ample evidence to convince a reasonable
finder of fact that, at the time of his attempts to so
induce the woman, [Cavallo] had known that an arbitra-
tion proceeding would soon be pending and that, during
the hearing, the woman would probably be called to
testify about her meetings with [Cavallo] in the cruiser.’’
Id., 673. The court thus concluded that, on the basis of
the evidence presented, ‘‘the jury could reasonably have
inferred that [Cavallo] intended to induce the woman
to testify falsely [at the arbitration hearing].’’ Id., 673–74.
The unspoken, but logical, step in this analysis is that
a jury reasonably could infer the requisite intent to
induce the woman to lie at the arbitration hearing from,
inter alia, Cavallo’s attempt to induce her to lie to police
investigators. ‘‘Intent may be, and usually is, inferred
from [a] defendant’s verbal or physical conduct. . . .
Intent may also be inferred from the surrounding cir-
cumstances. . . . The use of inferences based on cir-
cumstantial evidence is necessary because direct
evidence of the accused’s state of mind is rarely avail-
able. . . . Furthermore, it is a permissible, albeit not
a necessary or mandatory, inference that a defendant
intended the natural consequences of his voluntary
conduct.’’ (Emphasis in original; internal quotation
marks omitted.) State v. Pommer, supra, 110 Conn. App.
618–19. Because an official proceeding was about to
be instituted and the woman probably would be a wit-
ness, it is reasonable to infer that Cavallo intended the
natural consequences of his act, that is, to induce the
woman to testify falsely at the arbitration hearing. Put
differently, it is hard to imagine a scenario in which
Cavallo, believing that an arbitration proceeding was
about to be instituted and that the woman probably
would be summoned as a witness, would intend to
induce the woman to lie to investigators but not also
intend for her to lie at the arbitration hearing.
The Appellate Court followed this reasoning in State
v. Pommer, supra, 110 Conn. App. 619–20, and State v.
Higgins, 74 Conn. App. 473, 483–85, 811 A.2d 765, cert.
denied, 262 Conn. 950, 817 A.2d 110 (2003). Although the
defendant and the state suggest that Pommer extended
§ 53a-151 (a) to encompass statements to the police,
Pommer is entirely consistent with Cavallo, as the
Appellate Court concluded in Pommer that the jury
could infer the defendant’s intent from his conduct
toward a potential witness prior to the institution of an
official proceeding.7 See State v. Pommer, supra, 620.
In Pommer, the defendant, Richard Pommer, and two
accomplices committed a robbery and then escaped in
a vehicle driven by Pommer’s girlfriend, Melissa Fra-
gola. Id., 611. Fragola later told one of the accomplices,
Chaz Poole, that she was going to turn herself in to
the police, and she later did so and gave a statement
implicating Pommer. Id. Knowing that Fragola had
made this statement, Pommer called Poole and asked
him whether he was going to speak to the police as
well. Id. When Poole told Pommer that he planned to
do so, Pommer stated that ‘‘he loved [Poole] like a
brother, but if Poole went to the police, it would be
[Poole’s] ass.’’ (Internal quotation marks omitted.) Id.
Pommer was later charged with, inter alia, witness tam-
pering pursuant to § 53a-151 (a), and the jury found
Pommer guilty of that charge. See id., 610.
Pommer appealed to the Appellate Court, claiming,
inter alia, that there was insufficient evidence for the
jury to find that he had tampered with a witness. See
id. The Appellate Court disagreed, concluding, with
respect to the requirement that the defendant intend for
the witness to testify falsely, that ‘‘[t]he jury reasonably
could have inferred that [Pommer’s] slang expression
was a threat, [which was] designed to prevent Poole,
a witness to the events, from giving information to the
police and, thus, to withhold evidence [that] would
implicate [Pommer] in an official proceeding that was
imminent, namely, an arrest followed by a criminal pros-
ecution resulting in a trial in which testimony would
be taken under oath.’’ Id., 620. The Appellate Court also
concluded that the jury reasonably could have found
that Pommer believed that an official proceeding was
about to be instituted because, under § 53a-151 (a), ‘‘it
is enough . . . that an official proceeding is ‘about to
be instituted’ and is therefore imminent if a defendant,
knowing he has been implicated as a participant in a
crime, threatens a likely witness to that crime, to with-
hold evidence from the police, who . . . play a crucial
role in the commencement of criminal prosecutions.’’
Id., 618; see also State v. Higgins, supra, 74 Conn. App.
484–85 (concluding that evidence was sufficient to sup-
port conviction of witness tampering when jury reason-
ably could have concluded that defendant engaged in
improper sexual conduct with victim and subsequently
demanded that she tell police that ‘‘nothing ever hap-
pened’’ [internal quotation marks omitted]).8
The defendant also contends that, because § 53a-151
(a) is based on § 241.6 (1) of the Model Penal Code9
but § 53a-151 (a), unlike § 241.6 (1), does not contain
the words ‘‘investigation,’’ ‘‘inform,’’ or ‘‘informant,’’ the
legislature did not intend for § 53a-151 (a) to apply to
situations in which the defendant seeks to prevent an
individual from speaking with the police. We agree that
the legislature restricted the scope of the witness tam-
pering statute by omitting these words, but the scope
of the restriction was minimal.
First, the omission of the word ‘‘investigation’’ does
not mean that statements made during an investigation
are excluded because the application of the statute does
not depend on the actual stage of police involvement.
Instead, § 53a-151 (a) applies whenever the defendant
believes that an official proceeding will probably occur,
even if the police are only at the investigation stage.
Section 53a-151 (a) requires that a defendant ‘‘believ[e]
that an official proceeding is pending or about to be
instituted . . . .’’ (Emphasis added.) Although the stat-
ute does not specify whether the term ‘‘belief’’ is judged
by an objective or subjective standard, this court pre-
viously has determined that the statute ‘‘focuses on the
mental state of the perpetrator to distinguish culpable
conduct from innocent conduct.’’ State v. Cavallo,
supra, 200 Conn. 669. Thus, § 53a-151 (a) applies to
‘‘any conduct that is intended to prompt a witness to
testify falsely or refrain from testifying in an official
proceeding that the perpetrator believes [is] pending or
imminent.’’ (Emphasis added.) Id., 668. This interpreta-
tion finds support in the official comments to § 241.6
(1) of the Model Penal Code, which note that § 241.6
(1) ‘‘focuses on the individual actor’s culpability and
not on external factors that may be irrelevant to the
actor’s aim of subverting the administration of justice’’
and ‘‘eliminate[s] the purposeless quibbling invited by
laws requiring that a proceeding or investigation actu-
ally be pending or in fact be contemplated by the author-
ities.’’ Model Penal Code and Commentaries, supra,
§ 241.6 (1), comment 2, p. 166. Put simply, under § 53a-
151 (a), as long as the defendant believes that an official
proceeding will probably occur, it does not matter
whether an official proceeding is actually pending or
is about to be instituted.
The phrase ‘‘about to be instituted’’ in § 53a-151 (a)
is somewhat ambiguous, as the statute does not reveal
whether it connotes probability of occurrence or tempo-
ral proximity. We conclude that ‘‘about to be instituted’’
signifies probability, as mere temporal proximity does
not sufficiently implement the goal of punishing the
obstruction of justice. This interpretation is consistent
with this court’s reading of an identical phrase in the
related statute proscribing the tampering of physical
evidence, General Statutes § 53a-155 (a).10 See State v.
Foreshaw, 214 Conn. 540, 551, 572 A.2d 1006 (1990)
(reasoning that § 53a-155 [a] ‘‘speaks to that which is
readily apt to come into existence or [to] be contem-
plated’’ [emphasis added]). It is also consistent with
the official comments to § 241.6 (1) of the Model Penal
Code, which provide that this phrase ‘‘should be con-
strued more in the sense of probability than of temporal
relation. What is important is not that the actor believe
that an official proceeding or investigation will begin
within a certain span of time but rather that he recognize
that his conduct threatens obstruction of justice.’’
(Emphasis added.) Model Penal Code and Commentar-
ies, supra, § 241.6 (1), comment 2, p. 167.
Thus, the omission of the term ‘‘investigation’’ from
§ 53a-151 (a) does not mean that attempts to influence
witnesses that happen to occur during a police investi-
gation are excluded from the purview of the statute.
Instead, the omission of ‘‘investigation’’ was intended
to exclude from the scope of the statute situations in
which the defendant believes that only an investigation,
but not an official proceeding, is likely to occur. For
instance, consider a scenario in which an individual
commits a crime that results in no physical evidence,
and in which the individual thereafter attempts to pre-
vent the one witness to the crime from speaking to the
police. The individual certainly could believe that the
police would investigate the crime, but he would have
no reason to believe that an official proceeding would
probably occur because there would be no evidence or
witnesses on which the police could rely to identify
and arrest the individual. In contrast, when an individual
knows that there is significant evidence connecting him
to the crime, or, even further, when the individual
knows that a witness with relevant information already
has spoken with the police, a jury reasonably could
infer that the individual believed that the investigation
probably would progress into an official proceeding.
We also note that the Model Penal Code does not
define the term ‘‘witness,’’ whereas our statutory defini-
tion of the term is broad. General Statutes § 53a-146
(6) defines ‘‘witness’’ as ‘‘any person summoned, or who
may be summoned, to give testimony in an official
proceeding.’’ (Emphasis added.) In contrast, the official
comments to § 241.6 (1) of the Model Penal Code sug-
gest that, for purposes of its witness tampering provi-
sion, ‘‘an informant becomes a witness with the
issuance of legal summons.’’ Model Penal Code and
Commentaries, supra, § 241.6 (1), comment 2, pp. 170–
71. Thus, it does not necessarily follow that the omission
of the term ‘‘informant’’ from our own statute means
that all statements made by an individual to the police
are excluded from the purview of the statute because
our statutory definition of ‘‘witness’’ would overlap, at
times, with the Model Penal Code’s conception of an
‘‘informant.’’ Rather, the omission of ‘‘informant’’ from
our statutory scheme simply means that an individual
who does not qualify as a ‘‘witness’’ under § 53a-146
(6) does not fall within scope of the statute.
In sum, the jury may consider the defendant’s attempt
to prevent a potential witness from speaking with the
police as evidence of his intent to induce the witness
to engage in conduct prohibited by § 53a-151 (a).
Accordingly, it does not matter whether the police are
at the investigation stage, the official proceeding stage,
or any other stage; as long as the defendant acts with
the intent to prevent a witness from testifying at an
official proceeding, believing that such a proceeding
will probably occur, the defendant has tampered with
a witness within the meaning of § 53a-151 (a).
II
We next consider whether the evidence in the present
case was sufficient to permit the jury to reach a guilty
verdict with respect to the witness tampering charge.
The defendant argues that there is no evidence indicat-
ing that (1) he believed an official proceeding was about
to be instituted, and (2) he threatened Quinn with the
intent to induce her to withhold testimony at a criminal
trial. We disagree.
When reviewing a sufficiency of the evidence claim,
‘‘we do not attempt to weigh the credibility of the evi-
dence offered at trial, nor do we purport to substitute
our judgment for that of the jury. Instead, our review
consists of a two-step process in which we construe
the evidence presented at trial in a light most favorable
to sustaining the verdict . . . and then determine
whether the jury could reasonably have found, [on the
basis of] the facts established and the inferences reason-
ably drawn therefrom, that the cumulative effect of the
evidence established guilt beyond a reasonable doubt.’’
(Citations omitted; internal quotation marks omitted.)
State v. Cavallo, supra, 200 Conn. 673.
First, there was substantial evidence on which the
jury could have relied to find that the defendant believed
an official proceeding would probably occur. The defen-
dant confessed to at least two individuals that he had
killed someone. He knew that one of those individuals,
Quinn, was in contact with the police. In fact, the defen-
dant himself had been in contact with the police on
two occasions. After Labbadia’s remains were found,
the defendant exhibited suicidal behavior and repeat-
edly requested to speak to an investigator who was
working on the Labbadia murder case. He stated to
Middletown police officers that he ‘‘had heard there
were warrants for his arrest out through the Middletown
Police Department’’ and that ‘‘the Middletown police
[were] trying to kill [him].’’ This behavior indicates that
the defendant believed that an official proceeding prob-
ably would be instituted, regardless of whether Quinn
informed the police about the defendant’s confession.11
In addition, the jury reasonably could have found that
the defendant intended to induce Quinn to testify falsely
or withhold testimony at an official proceeding. The
defendant arrived at Quinn’s home with a gun and ‘‘told
Quinn that he had the gun for ‘insurance’ if she told
‘the cops about what he said about [Labbadia].’ The
defendant said that if Quinn spoke to the police ‘[her]
house was going to go up in smoke . . . .’ ’’ State v.
Ortiz, supra, 133 Conn. App. 121. In fact, the defendant
had confessed to Quinn that he had murdered Labbadia
for almost identical reasons. A jury could infer that the
defendant intended the natural consequences of this
threat—that she not only withhold information from
the police but also withhold testimony or provide false
testimony at a future official proceeding. As in Cavallo,
it is difficult to imagine a situation in which the defen-
dant, believing that an official proceeding would occur
at which Quinn would probably testify, would seek to
prevent Quinn from speaking to the police about his
confession but would not intend for her to lie at the
future criminal trial.
Thus, considering the evidence in the light most
favorable to sustaining the verdict, we conclude that the
jury reasonably could have found that the cumulative
effect of the evidence established the defendant’s guilt,
with respect to the charge of tampering with a witness,
beyond a reasonable doubt.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The Cenacle was an old, abandoned building in Middletown.
2
The defendant’s statement to Quinn was not his only confession. At
some point in late 1998 or early 1999, the defendant also told Jeremiah
Marselli, the former boyfriend of Labbadia’s sister, that he had killed
someone.
3
‘‘These charges pertain to the events of August 7, 1999. The defendant
was charged separately for crimes pertaining to the murder of Labbadia
and the [burglary] that occurred on April 14, 1997. Although these charges
were eventually consolidated, only those charges relating to the defendant’s
interaction with Quinn are relevant to the present appeal.’’ State v. Ortiz,
supra, 133 Conn. App. 121 n.3.
4
The defendant was sentenced to six years imprisonment for his convic-
tion on the charges of tampering with a witness, criminal trespass in the
first degree, and carrying a pistol without a permit.
5
The first certified question does not properly frame the issue presented
to this court because it does not correctly describe the Appellate Court’s
holding in Pommer. As we explain in this opinion, Pommer did not hold
that an attempt to prevent an individual from speaking with the police falls
within the ambit of § 53a-151 (a) but, rather, reasoned that such an attempt
could be considered evidence of the defendant’s intent to induce a potential
witness to engage in improper conduct at a future official proceeding. See
State v. Pommer, supra, 110 Conn. App. 619–20. The second certified ques-
tion also does not properly frame the issue because the defendant’s claim
is not contingent on our answer to the first question. We therefore recast
the questions to conform to the arguments as presented in the defendant’s
brief and at oral argument. See, e.g., State v. Ouellette, 295 Conn. 173, 183–84,
989 A.2d 1048 (2010).
6
The term ‘‘witness’’ is broadly defined as ‘‘any person summoned, or
who may be summoned, to give testimony in an official proceeding . . . .’’
(Emphasis added.) General Statutes § 53a-146 (6). The statutory scheme
also includes a broad definition of ‘‘official proceeding,’’ that is, ‘‘any proceed-
ing held or which may be held before any legislative, judicial, administrative
or other agency or official authorized to take evidence under oath, including
any referee, hearing examiner, commissioner or notary or other person
taking evidence in connection with any proceeding.’’ (Emphasis added.)
General Statutes § 53a-146 (1).
7
In his concurrence in the Appellate Court’s decision in Ortiz, Judge
Bishop suggests that Pommer does not direct the outcome of the present
case because the court did not analyze the terms ‘‘witness’’ and ‘‘testimony’’
and did not address the omission of the term ‘‘investigation’’ from § 53a-
151, even though that term appears in the Model Penal Code provision on
which § 53a-151 (a) is based. See State v. Ortiz, supra, 133 Conn. App. 130,
135 (Bishop, J., concurring in part and concurring in the judgment). Although
Pommer did not specifically analyze these terms or address the differences
between our statute and § 241.6 (1) of the Model Penal Code, the reasoning
and outcome of Pommer are consistent with our interpretation of § 53a-
151 (a) and the official comments to § 241.6 (1) of the Model Penal Code.
Furthermore, Judge Bishop observed that the court in Pommer improperly
relied on this court’s decision in State v. Foreshaw, 214 Conn. 540, 572 A.2d
1006 (1990); see State v. Ortiz, supra, 132–33 (Bishop, J., concurring in part
and concurring in the judgment); which interpreted the tampering with
physical evidence statute, General Statutes § 53a-155. See State v. Foreshaw,
supra, 547. Specifically, Judge Bishop stated: ‘‘Although it fairly can be
argued that the conduct of a person in destroying or secreting evidence to
keep it from police discovery during an investigation invariably compels a
necessary inference that the actor intends, as well, for the evidence to be
unavailable in any proceeding likely to ensue from the police investigation,
a similar inference is not necessarily compelled from the conduct of an
actor who asks another not to talk with the police during an investigation.
In the latter case, whether asking a person not to talk with the police during
an investigation permits a reasonable inference that, by such conduct, the
actor has also attempted to influence that person’s testimony in an official
proceeding likely to ensue will vary depending on the facts and circum-
stances that pertain.’’ State v. Ortiz, supra, 132–33 (Bishop, J., concurring
in part and concurring in the judgment). We agree that the inferences made
from a defendant’s conduct will depend on the facts and circumstances of
each individual case under both §§ 53a-151 (a) and 53a-155. Thus, we do
not agree, as Judge Bishop suggests, that these inferences are invariably
compelled as a matter of law but, instead, conclude that the defendant’s
belief and intent are questions of fact for the jury to decide.
8
The defendant also relies on several decisions from other states in sup-
port of his position. Some of these decisions are not necessarily contrary
to our interpretation of § 53a-151 (a). See State v. Bailey, 346 Or. 551, 564,
213 P.3d 1240 (2009) (‘‘to constitute a violation of the [witness tampering]
statute, the offender’s knowing inducement or intended inducement must
reflect, either directly or by fair inference, that the offender at that time
specifically and reasonably believes that the victim will be called to testify
at an official proceeding’’ [emphasis added]); see also State v. LaPointe,
418 N.W.2d 49, 50, 52 (Iowa 1988) (evidence insufficient to establish witness
tampering when defendant offered to pay prospective witness money after
he struck and injured her and she had informed defendant that she had not
spoken to police and did not intend to press charges). Other decisions do
not provide us with much guidance as they interpret a witness tampering
statute that has different requirements from our own. See J.L.R. v. State,
756 So. 2d 1088, 1089 (Fla. App. 2000) (statute expressly encompasses
witness tampering in context of investigations); State v. Todd, 805 S.W.2d
204, 206 (Mo. App. 1991) (statute requires that official proceeding is pending);
State v. Kilgus, 125 N.H. 739, 742, 484 A.2d 1208 (1984) (statute expressly
encompasses witness tampering in context of investigations).
9
Section 53a-151 (a), as well as many other statutes in the Connecticut
Penal Code, is based on the comparable provision in the Model Penal Code.
See, e.g., State v. Salamon, 287 Conn. 509, 541, 949 A.2d 1092 (2008).
Section 241.6 (1) of the Model Penal Code provides: ‘‘Tampering. A person
commits an offense if, believing that an official proceeding or investigation
is pending or about to be instituted, he attempts to induce or otherwise
cause a witness or informant to:
‘‘(a) testify or inform falsely; or
‘‘(b) withhold any testimony, information, document or thing; or
‘‘(c) elude legal process summoning him to testify or supply evidence; or
‘‘(d) absent himself from any proceeding or investigation to which he has
been legally summoned.’’
10
General Statutes § 53a-155 (a) provides in relevant part: ‘‘A person is
guilty of tampering with or fabricating physical evidence if, believing that
an official proceeding is pending, or about to be instituted, he: (1) Alters,
destroys, conceals or removes any record, document or thing with purpose
to impair its verity or availability in such proceeding . . . .’’
11
The defendant claims that many of these events occurred months prior
to his alleged tampering of Quinn. We do not find it unreasonable, however,
for the jury to have inferred that the defendant believed an official proceeding
was still probable four months after the victim’s remains were found, espe-
cially in light of the other evidence against him.