State v. Gibson ( 2021 )

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STATE OF CONNECTICUT v. TIJUAN GIBSON
(SC 20320)
Robinson, C. J., and McDonald, D’Auria,
Kahn, Ecker and Keller, Js.
Syllabus
Convicted of felony murder, robbery in the first degree, conspiracy to commit
robbery in the first degree, and criminal possession of a firearm in
connection with the shooting death of the victim, the defendant
appealed. At the defendant’s trial, one of the state’s witnesses, S, testified
that the defendant knew that the victim had a significant amount of
cash on him and that the defendant planned to steal it. S testified that,
at the defendant’s request, he drove the victim to the home of the
defendant’s mother, where the defendant, in S’s presence, robbed and
then shot the victim. The state presented additional evidence that was
consistent with S’s account of the events. Another witness, A, testified
that she lived across the street from where the victim’s body was found
and that she saw the defendant push a person matching the victim’s
description against a wall and drag him toward the lawn of an abandoned
house, and then A heard gunshots. The trial court also admitted into
evidence, over defense counsel’s objection, portions of A’s written state-
ment to the police. In addition, before calling the defendant’s nephew,
R, to testify, the prosecutor represented to the court that R had pending
criminal charges against him. The court initially indicated that it would
prohibit an inquiry by defense counsel into those charges, but, after
hearing additional argument, the court revised its ruling by stating that
defense counsel could question R about the existence of pending charges
and the maximum penalty that could be imposed for those charges, so
long as the questions were directed toward the issue of bias. Ultimately,
the prosecutor presented R’s testimony, which corroborated S’s testi-
mony, but the prosecutor did not mention the charges against R during
direct examination, and defense counsel declined to cross-examine R.
Held:
1. The trial court properly admitted the portions of A’s written statement
to the police because, even if the admission of that evidence was
improper, any error was harmless: A’s account of the events leading up
to the shooting was not central to the state’s case because the defendant
admitted in his interview with the police that he witnessed the shooting
and was in the area where the crime occurred, and, thus, the state
did not need A’s testimony to place the defendant at the crime scene;
moreover, because the jury found the defendant not guilty of murder
but guilty of felony murder, A’s testimony did not substantially sway
the jury’s conclusion with respect to the question of whether the defen-
dant was the person who actually killed the victim; furthermore, several
independent pieces of evidence implicated the defendant in the robbery,
and it was unlikely that any bolstering caused by the admission of the
portions of A’s written statement would have changed the way the jury
viewed A’s account of the events.
2. The trial court did not violate the defendant’s constitutional right to
confront the witnesses against him by precluding defense counsel from
cross-examining R about R’s pending criminal charges: the court
expressly stated that defense counsel could cross-examine R about the
fact that he had pending criminal charges and the maximum penalties
that he was facing, and defense counsel’s decision to forgo that opportu-
nity was his own; moreover, even if the restrictions placed on defense
counsel’s cross-examination of R infringed on the defendant’s confronta-
tion rights, the state demonstrated that any such infringement was harm-
less beyond a reasonable doubt, as R’s testimony was not critical to the
state’s case because he was neither a participant in, nor a witness to,
the attack on the victim, and the central points of R’s testimony were
consistent with the account of the events that the defendant had provided
during his interview with the police.
Argued March 22—officially released August 23, 2021*
Procedural History
Substitute information charging the defendant with
the crimes of murder, felony murder, robbery in the
first degree, conspiracy to commit robbery in the first
degree and criminal possession of a firearm, brought to
the Superior Court in the judicial district of Waterbury,
where the charges of murder, felony murder, robbery
in the first degree and conspiracy to commit robbery
in the first degree were tried to the jury before Craw-
ford, J.; verdict of guilty of felony murder, robbery in
the first degree and conspiracy to commit robbery in
the first degree; thereafter, the charge of criminal pos-
session of a firearm was tried to the court, Crawford,
J.; finding of guilty; judgment of guilty in accordance
with the jury’s verdict and the court’s finding, from
which the defendant appealed to this court. Affirmed.
Alice Osedach, assistant public defender, for the
appellant (defendant).
Kathryn W. Bare, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Cynthia Serafini and Terence D. Mari-
ani, senior assistant state’s attorneys, for the appel-
lee (state).
Opinion
KAHN, J. The defendant, Tijuan Gibson, appeals from
the judgment of the trial court convicting him of the
crimes of felony murder in violation of General Statutes
§ 53a-54c, robbery in the first degree in violation of
General Statutes § 53a-134 (a) (1), conspiracy to commit
robbery in the first degree in violation of General Stat-
utes §§ 53a-48 and 53a-134 (a) (1), and criminal posses-
sion of a firearm in violation of General Statutes § 53a-
217.1 On appeal, the defendant claims that (1) the trial
court improperly admitted portions of a written state-
ment from one of the state’s witnesses, Shyaira Atkin-
son, into evidence; and (2) the trial court unduly restrict-
ed the cross-examination of another state’s witness,
Levar Roach, with respect to certain pending criminal
charges. For the reasons that follow, we reject these
claims and, accordingly, affirm the judgment of the trial
court.
The record contains the following undisputed facts
and procedural history relevant to the present appeal.
This case arises out of the shooting death of the victim,
Savion Bostic Aponte, on Ridgewood Street in the city
of Waterbury shortly after 10:30 p.m. on January 27,
2017. Around 5 p.m. that day, the victim traveled from
the Willow Street area to the home of a coworker in
order to purchase a red Volkswagen Jetta. The victim,
who had just received a paycheck, gave his coworker
a few hundred dollars in cash as a down payment and
then drove the car to his nephew’s birthday party at a
local Chuck E. Cheese’s restaurant. The victim’s sister,
Rebecca Ruiz, testified that the victim left the party at
approximately 8 p.m. At 8:30 p.m., the victim returned
to the Willow Street area and began to socialize with
a group of people outside of a liquor store. Footage
from security cameras introduced by the state at trial
show that this group included, among other people,
both Tysean Snow and the defendant. The group eventu-
ally disbursed, and, at 10:13 p.m., a second set of secu-
rity cameras located outside of a restaurant two blocks
to the south along Willow Street recorded the victim’s
red Jetta pulling up alongside of the curb and Snow
getting into the passenger seat.
Shortly after 10:30 p.m., multiple people living along
Ridgewood Street between Wyman Street and Chestnut
Avenue heard gunfire; however, none of them reported
it to the police. Around 8 a.m. the following morning,
a person saw the victim’s body lying under a tree on
the lawn of an abandoned home located on the corner
of Ridgewood Street and Chestnut Avenue. The victim’s
yellow shirt, white hooded sweatshirt, black jacket, and
blue shoes were lying on the ground next to his body.
His pants were pulled down past his knees. Three bul-
lets were recovered from the victim’s body; two from
his head and one from his back. The medical examiner
responsible for the victim’s autopsy testified that one
of the shots to the victim’s head had been fired at close
range. The medical examiner testified that such a
wound would have caused the victim to lose conscious-
ness instantaneously.
During trial, the jury was presented with two different
accounts of the events leading up to the victim’s death.
The first of these accounts came from Snow, who, in
exchange for a plea deal, agreed to testify as a witness
for the state. The second was derived from the defen-
dant’s own statements to the police.
According to Snow, the defendant knew that the vic-
tim had a significant amount of cash on him earlier in
the day and had told at least one other person that he
planned to steal it.2 Snow testified that the defendant
had called and asked him to bring the victim down to
the corner of Ridgewood Street and Wyman Street so
that they could ‘‘drink a bottle’’ together at a house
owned by the defendant’s mother. Snow told the jury
that he had known at the time that this invitation was
likely a trap for the victim but, nonetheless, complied
with the defendant’s request because he hoped to get
a portion of what was stolen.
Snow indicated that he and the victim drove down
to the home of the defendant’s mother in the red Jetta
and parked behind a Honda on Wyman Street. Snow
stated that the defendant’s nephew, Roach, had been
inside of the Honda at the time and that the three of
them spoke briefly. Snow testified that both he and the
victim then crossed Wyman Street to meet the defen-
dant in the yard outside of his mother’s house. Snow
indicated that the victim and the defendant soon began
arguing and that the three of them eventually moved
up the hill onto Ridgewood Street. Snow testified that
the defendant then grabbed the victim by the shoulder
and pushed him up against a wall. According to Snow,
the defendant then started asking the victim where the
money was and began going through the victim’s pock-
ets. Snow stated that the defendant subsequently dragged
the victim up onto a nearby lawn and continued his
search for the money by stripping the clothing off of the
victim’s upper body. Snow indicated that the defendant
then took out a silver revolver, pointed it in the direction
of the victim’s head, and said ‘‘you think I’m fucking
playing?’’ Snow stated that the defendant then took off
the victim’s shoes, searched around the victim’s ankles
for the money, and then grabbed the victim by the pants.
Snow testified that, at this point, the defendant shot
the gun twice in quick succession and that the victim
dropped to the ground. Snow stated that, as he was
fleeing, he heard the gun go off a third time and then
turned to see the defendant beginning to run down
Ridgewood Street toward the parked Honda where
Roach was sitting.
The state introduced several additional items of evi-
dence that were consistent with Snow’s version of
events that evening. First, telephone records admitted
into evidence at trial show that the defendant called
Snow at 10:37 p.m. on the evening in question and that
this call lasted approximately twenty-seven seconds.
Second, Atkinson testified that she lived across the
street from where the victim’s body was found and that,
around 10:30 p.m. on January 27, 2017, she heard an
argument taking place outside on the street. Atkinson
looked out the window and saw the defendant pushing
a person matching the victim’s description up against
a wall while pointing a finger in his face.3 Atkinson
heard the defendant tell the person to leave but,
moments later, saw the defendant dragging him by the
back of his coat up onto the lawn of the abandoned
house across the street. Atkinson lost sight of the alter-
cation, stepped away from the window, and then heard
gunshots. She then returned to the window and saw
the defendant running down Ridgewood Street, toward
Wyman Street. Atkinson indicated that a third person
was present during the altercation between the defen-
dant and the victim but that she never saw that person
say or do anything to the victim. Finally, Roach also
testified at trial and not only corroborated Snow’s testi-
mony about the conversation on Wyman Street before
the shooting, but also indicated that, a short time later,
the defendant approached the Honda that he had been
sitting in, told him that there had been a shooting in
the area involving ‘‘the boys,’’ and asked for a ride to
New Haven.
Although the defendant elected not to testify at trial,
the jury heard his evolving versions of events through
his prior statements to the police. The day after the victim’s
death, the defendant gave a sworn, written statement to
the police indicating that he had been at the home of a
female acquaintance, Beth Quinones, on Willow Street
from 10 p.m. that evening until 5 a.m. the following morn-
ing. During a video-recorded interview conducted after
his arrest, the defendant admitted to the police that he
was on Ridgewood Street that evening and had, in fact,
witnessed the shooting of the victim. Specifically, during
that interview, the defendant described, in detail, how he
had seen Snow pull out a gun and shoot the victim. At
that time, the defendant maintained that he had been in
the area only because he was visiting a second female
acquaintance, Monique Reed, at a house across the street
from where the shooting occurred. The defendant identi-
fied Snow as the sole perpetrator and, again, denied partic-
ipating in any crimes against the victim.4
A significant amount of circumstantial evidence pre-
sented at trial suggested that the defendant was something
more than an innocent bystander. First, testimony demon-
strated that the defendant repeatedly lied to the police
about his whereabouts around the time of the victim’s
death. At trial, Quinones testified that the defendant did
spend the night with her that evening but that he did
not arrive at her home until approximately 11 p.m. Reed
testified that she had not seen the defendant at all that
evening. The defendant also admitted that he deleted data
from one of his cell phones before surrendering it to the
police,5 and the victim’s red Jetta was recovered on Tower
Road, only a short distance from Quinones’ home. Finally,
although, in his video-recorded interview with the police,
the defendant denied attempting to rob the victim, he also
complained about having to get money from his wife, and
he admitted that he had known the victim was carrying
cash earlier in the day to purchase a car.
The defendant was arrested and charged with murder,
felony murder, robbery in the first degree, conspiracy to
commit robbery in the first degree, and criminal posses-
sion of a firearm. The defendant elected a bench trial as
to the charge of criminal possession of a firearm but
claimed a trial by jury on the remaining charges. After a
two week trial, the jury returned a verdict, finding the
defendant not guilty of the crime of murder but guilty of
the crimes of felony murder, robbery in the first degree,
and conspiracy to commit robbery. Thereafter, the trial
court found the defendant guilty of the crime of criminal
possession of a firearm. The trial court subsequently ren-
dered a judgment of conviction in accordance with the
jury’s verdict and its own finding, and imposed a sentence
of fifty years of imprisonment for felony murder, a concur-
rent sentence of five years of imprisonment for robbery
in the first degree, a concurrent sentence of five years of
imprisonment for conspiracy to commit robbery in the
first degree, and a consecutive sentence of five years
of imprisonment for criminal possession of a firearm,
resulting in a total effective sentence of fifty-five years of
imprisonment. This appeal followed. Additional facts and
procedural history will be set forth as necessary.
I
The defendant’s first claim is that the trial court commit-
ted reversible error by admitting portions of Atkinson’s
written statement to the police into evidence. The state
responds by arguing that the trial court’s admission of the
statement was proper and that, even if it was not, any
error was harmless. For the reasons that follow, we agree
with the state and conclude that, even if we were to
assume that the trial court’s admission of Atkinson’s state-
ment was improper, any error was harmless.
The following additional facts and procedural history
are relevant to our consideration of this claim. On direct
examination, Atkinson testified that the defendant had
been the person yelling outside of her window that night
and, specifically, that she had recognized the sound of his
voice from a series of previous conversations at a local
store. Although Atkinson clearly testified both that the
defendant was on Ridgewood Street that evening and that
she had no doubt in her mind about that identification,
she did not expressly testify on direct examination that
she recognized the defendant that night by sight.
On cross-examination, defense counsel highlighted the
fact that Atkinson’s previous written statement to the
police did not include the fact that she had recognized
the defendant by his voice. Defense counsel then asked
the following question: ‘‘If you recognizing the voice is
not in the statement, is that because you didn’t want it
in there?’’ In response, Atkinson indicated that her recogni-
tion of the defendant’s voice was not in the statement
because she had never expressly mentioned that fact to
the police. On redirect examination, the prosecutor sought
to rehabilitate Atkinson’s testimony by admitting her writ-
ten statement to the police as a prior consistent statement.
Defense counsel objected, arguing that none of the
grounds for admission set forth in § 6-11 (b) of the Con-
necticut Code of Evidence applied. The trial court over-
ruled that objection and ultimately admitted almost the
entirety of Atkinson’s written statement into evidence.6
The standard of review applicable to the defendant’s
claim of evidentiary error is well established. ‘‘We review
the trial court’s decision to admit evidence, if premised
on a correct view of the law . . . for an abuse of discre-
tion.’’ (Internal quotation marks omitted.) State v. Beavers,
290 Conn. 386, 396, 963 A.2d 956 (2009); see also State v.
Snelgrove, 288 Conn. 742, 758, 954 A.2d 165 (2008). ‘‘When
an improper evidentiary ruling is not constitutional in
nature, the defendant bears the burden of demonstrating
that the error was harmful. . . . [W]hether [an improper
ruling] is harmless in a particular case depends [on] a
number of factors, such as the importance of the . . .
testimony in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of evidence cor-
roborating or contradicting the testimony of the witness
on material points, the extent of cross-examination other-
wise permitted, and, of course, the overall strength of the
prosecution’s case. . . . Most importantly, we must
examine the impact of the . . . evidence on the trier of
fact and the result of the trial. . . . [T]he proper standard
for determining whether an erroneous evidentiary ruling
is harmless should be whether the jury’s verdict was sub-
stantially swayed by the error. . . . Accordingly, a non-
constitutional error is harmless when an appellate court
has a fair assurance that the error did not substantially
affect the verdict.’’ (Internal quotation marks omitted.)
State v. Courtney G., 339 Conn. 328, 338, 260 A.3d 1152(2021); see also State v. Sinclair, 332 Conn. 204, 233, 210
A.3d 509 (2019).
The defendant argues that the trial court’s admission
of Atkinson’s statement to the police was harmful because
it unfairly bolstered her credibility to the jury.7 The defen-
dant asserts that Atkinson’s testimony was critical to the
state’s case because her account corroborated Snow’s
testimony. In response, the state argues that the inconsis-
tencies in the defendant’s statements to the police, the
various pieces of evidence directly contradicting his ver-
sion of events, and the evidence demonstrating his con-
sciousness of guilt, cumulatively, made its case a strong
one.
We begin our analysis of these arguments by noting
two distinct ways in which Atkinson’s testimony was not
central to the state’s case against the defendant. First,
during his video-recorded interview with the police follow-
ing his arrest, the defendant expressly admitted to being
on Ridgewood Street and to witnessing the shooting. As
a result, the state did not need Atkinson’s testimony to
place the defendant at the scene of the crime. At trial,
defense counsel argued that Snow was the sole perpetra-
tor of the robbery and that the defendant’s presence was
merely coincidental. Second, the fact that the jury returned
a verdict finding the defendant not guilty of the crime
of murder, but guilty of felony murder, illustrates that
Atkinson’s testimony did not substantially sway the jury’s
conclusion with respect to the ultimate question of
whether the defendant was the person who actually killed
the victim.
Although Snow’s credibility as a cooperating accom-
plice heightened the importance of any evidence that
tended to corroborate his testimony, Atkinson’s account
of the events was far from the only piece of evidence
demonstrating the defendant’s involvement in the robbery.
The telephone records admitted at trial show that Snow
and the defendant were in contact with one another within
minutes of the shooting. Testimony from Quinones and
Reed demonstrated that the defendant had lied to the
police not once, but twice, about his whereabouts that
evening. Before turning his cell phones over to the police,
the defendant deleted data from around the time of the
victim’s death. The defendant admitted to the police that
he was short on money and that he knew the victim was
in possession of cash earlier in the day to buy a car. The
victim’s car was eventually recovered on Tower Road,
which is near the location where the defendant eventually
spent the night with Quinones. Although this evidence
is largely circumstantial, it significantly diminished the
degree to which the state was required to rely on Atkin-
son’s testimony to demonstrate that the defendant’s pres-
ence on Ridgewood Street at the moment of the shooting
was not simply a coincidence.
Moreover, even if we were to agree with the defendant
that Atkinson’s testimony was a critical component of the
state’s case, the defendant has presented this court with
no plausible reason to believe that the absence of her
previous written statement would have caused the jury
to view her in-court testimony with suspicion. At trial,
during a discussion conducted outside the presence of
the jury as to whether the admission of Atkinson’s state-
ment was needed, defense counsel plainly stated that his
original attempt to impeach Atkinson had failed and that
he assessed Atkinson’s in-court testimony to be ‘‘highly
credible . . . .’’ Indeed, defense counsel even expressly
relied on Atkinson’s account of the events during closing
arguments by emphasizing the fact that she had recog-
nized the defendant’s voice and that she had heard the
defendant tell the victim to leave.
We conclude that the defendant has failed to satisfy his
burden of demonstrating that the admission of Atkinson’s
written statement to the police substantially swayed the
jury’s verdict. Several independent pieces of evidence
implicated the defendant in the robbery, and it is unlikely
that any bolstering caused by the trial court’s admission
of Atkinson’s written statement would have changed the
way the jury viewed her account of the events. As a result,
this claim of evidentiary error fails.8
II
The defendant’s second claim is that the trial court
violated his federal constitutional right to confront the
witnesses against him by categorically preventing him
from cross-examining Roach about pending criminal
charges.9 The state responds by arguing that the trial
court’s ruling did not categorically deny the defendant
an opportunity to question Roach and that, even if the
defendant’s cross-examination of Roach was improperly
restricted, any error was harmless beyond a reasonable
doubt. We agree with the state.
The following additional procedural history is relevant
to our consideration of this claim. Before calling Roach
to the stand, the prosecutor represented to the trial court
that Roach had pending criminal charges against him for
certain unrelated crimes and that the state had not entered
into a cooperation agreement with him or offered him
anything in exchange for his testimony in the present case.
Roach’s counsel, who was present at the time, stated that
an offer had been made by the court in Roach’s pending
case10 and that the matter had not yet proceeded to trial.
Defense counsel indicated that he intended to inquire
about those charges on cross-examination for the purpose
of demonstrating bias pursuant to § 6-5 of the Connecticut
Code of Evidence. The trial court initially indicated that
it would prohibit such an inquiry, stating that ‘‘[t]he fact
that [Roach] has a case pending by itself is not bias.’’
After hearing additional argument from the parties and
taking a recess, the trial court revised its previous ruling by
stating that defense counsel could question Roach about
‘‘anything that is factual that you believe goes to showing
interest, prejudice, bias, or motive . . . .’’ The trial court
then noted, in particular, that it viewed both the existence
of pending charges against Roach and the maximum pen-
alty that could be imposed for those charges as matters
of fact that could be explored by defense counsel on cross-
examination, so long as the questions put to the witness
were directed toward the issue of bias.11 The trial court
did, however, prohibit defense counsel from speculating
about the ‘‘final charges’’ at issue in that case, inquiring
about the nature of the criminal conduct underlying those
charges, or going into any ‘‘plea negotiations . . . .’’ Ulti-
mately, the prosecutor did not mention the charges pend-
ing against Roach in the course of its direct examination,
and defense counsel declined to conduct any cross-exami-
nation at all.
We begin by setting forth the principles of law relevant
to our consideration of the defendant’s claim. ‘‘The sixth
amendment to the [United States] constitution guarantees
the right of an accused in a criminal prosecution to con-
front the witnesses against him.12 . . . The primary inter-
est secured by confrontation is the right to cross-examina-
tion . . . and an important function of cross-examination
is the exposure of a witness’ motivation in testifying. . . .
Cross-examination to elicit facts tending to show motive,
interest, bias and prejudice is a matter of right and may not
be unduly restricted.’’ (Footnote added; internal quotation
marks omitted.) State v. Davis, 298 Conn. 1, 8–9, 1 A.3d 76(2010). ‘‘The constitutional standard is met when defense
counsel is permitted to expose to the jury the facts from
which [the] jurors, as the sole triers of fact and credibility,
could appropriately draw inferences relating to the relia-
bility of the witness.’’ (Internal quotation marks omitted.)
State v. Erickson, 297 Conn. 164, 189, 997 A.2d 480 (2010);
see also State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765(1982). The common law of this state has, to that end,
‘‘consistently recognized the right of an accused, during
cross-examination, to place before the jury the fact that
criminal charges are pending against the state’s wit-
nesses.’’ State v. Ortiz, 198 Conn. 220, 223, 502 A.2d 400(1985); see State v. Benedict, 313 Conn. 494, 510, 98 A.3d
42 (2014) (‘‘[i]t is well settled law that [t]he fact that the
witness is a defendant in a criminal prosecution . . . cre-
ates an interest which affects his [or her] credibility’’ (inter-
nal quotation marks omitted)); see also State v. George,
194 Conn. 361, 365, 481 A.2d 1068 (1984), cert. denied,
469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985).
After a detailed review of the trial transcripts, we reject
the defendant’s contention that the trial court categori-
cally prohibited defense counsel from engaging in any
inquiry relating to the charges pending against Roach.
Although the trial court’s initial discussion of the matter
was somewhat unclear, it expressly stated after returning
from a recess that defense counsel could cross-examine
Roach about the fact that he had criminal charges pending
against him and the maximum penalties that he was facing
for those charges. Defense counsel’s decision to forgo
that opportunity was his own.
Even if we were to assume that the partial restrictions
placed on defense counsel’s cross-examination of Roach13
infringed on the ‘‘irreducible minimum of cross-examina-
tion’’ guaranteed by the confrontation clause of the sixth
amendment; State v. Ortiz, supra, 198 Conn. 224; we
would, nonetheless, conclude that the state has met its
burden of demonstrating that any such infringement was
harmless beyond a reasonable doubt.14 Because Roach
was neither a participant in, nor a witness to, the attack
on the victim, his testimony was in no way critical to
the state’s case. Indeed, the central points of Roach’s
testimony—namely, that he saw both Snow and the victim
on Wyman Street shortly before the shooting and that, a
short time later, the defendant came down from Ridge-
wood Street and asked him for a ride—were consistent
with the account of the events that the defendant himself
provided to the police during his video-recorded interview.
As a result, the defendant’s constitutional claim must
also fail.15
The judgment is affirmed.
In this opinion the other justices concurred.
* August 23, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The defendant appealed directly to this court pursuant to General Statutes
§ 51-199 (b) (3).
2
Specifically, Snow testified that he had overheard the defendant telling a
person named ‘‘Bo’’ earlier that same evening about his plans to rob the victim.
Snow testified that he had tried to warn the victim that someone was going
to rob him but that the victim had just ‘‘brushed [him] off . . . .’’
3
Atkinson testified that the person being pushed up against the wall was
taller than the defendant and ‘‘had on a white hoodie and a black big . . .
puffy jacket.’’ Although Atkinson was familiar with the victim, she did not know
that it was him until the following morning.
4
Both the defendant’s initial statement to the police and the video-recorded
interview that followed his arrest were admitted into evidence during the state’s
case-in-chief.
5
The deletion of data from the defendant’s cell phone was subsequently
confirmed by a digital forensic examination.
6
Although certain limited portions of Atkinson’s statement were redacted
on the ground that they contained hearsay, those redactions in no way alter
our analysis of the evidentiary claim that the defendant now raises on appeal.
7
Although the defendant nominally contends that this evidentiary error
requires a reversal on all counts, his briefing on the question of harm focuses
on the impact of Atkinson’s testimony on the verdict reached by the jury. As
a result, we constrain our own analysis to the same point.
8
The defendant’s briefing of this claim of evidentiary error contains, entwined
within it, a cursory assertion that the trial court’s admission of Atkinson’s prior
written statement to the police also impermissibly infringed on his constitutional
right to confrontation. The defendant’s constitutional right to confront Atkinson
was, of course, preserved in the present case because Atkinson testified at
trial and was fully available for vigorous cross-examination. See Crawford v.
Washington, 541 U.S. 36, 60 n.9, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (‘‘when
the declarant appears for cross-examination at trial, the [c]onfrontation [c]lause
places no constraints at all on the use of his prior testimonial statements’’). A
detailed examination of the trial transcripts provides no support for the defen-
dant’s claim that the trial court’s subsequent evidentiary ruling with respect to
Atkinson’s statement had the effect of chilling or penalizing the exercise of his
constitutional right to confrontation.
9
The defendant’s brief claims, but does not separately analyze, violations of
both article first, § 8, of the Connecticut constitution and federal due process
rights. As a result, we deem those claims to have been inadequately briefed.
See, e.g., State v. Michael T., 338 Conn. 705, 739, 259 A.3d 617 (2021).
10
Defense counsel represented that he had been made aware of the fact that
Roach had been ‘‘charged with offenses that carry up to a twenty year maximum
and [that he has] been made an offer that would require eight years of incarcera-
tion.’’
11
Specifically, the trial court stated: ‘‘[O]bviously, you can impeach to show
interest, prejudice, bias, or motive, and I believe that was what I said earlier.
You can fashion your questions, as long as it goes to that . . . . So, to the
extent all I did get before was that there are pending cases and that obviously
would be a fact, and that whatever the maximum penalty is, that would be a
fact . . . .’’ The trial court then emphasized the point further, stating: ‘‘I don’t
want you to think in any way I’m limiting you from addressing those areas
. . . . [You are] obviously allowed to question concerning interest, prejudice,
bias, or motive for falsely testifying.’’
12
The sixth amendment right to confrontation is made applicable to state
prosecutions through the due process clause of the fourteenth amendment.
See, e.g., Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).
13
The trial court’s restriction with respect to the issue of ‘‘plea negotiations’’
did ostensibly limit defense counsel’s ability to inquire about the pretrial offer
that Roach had previously received. The record reflects, however, that the
pretrial offer was unconnected to Roach’s testimony in the present case. Specifi-
cally, when defense counsel indicated to the court that he intended to argue
that the eight year offer went to bias because ‘‘I don’t control that offer . . .
the state’s attorney’s office does,’’ Roach’s counsel immediately interjected to
inform the court that, ‘‘for the record, there has been an offer made by the judge.’’
This understanding of the offer is confirmed by the fact that the prosecutor in
the present case stated, on the record, that the state had made no agreements
with Roach in exchange for his testimony against the defendant. There is no
indication on the record that the pretrial offer was connected to Roach’s testi-
mony in this case. Because the eight year offer made to Roach was made by
the judge presiding over his case, without any connection to this case, and not
the state, that offer is not relevant to the question of bias.
14
Although not dispositive of our harmless error analysis in the present case,
we note that, as a purely practical matter, the fact that Roach would have had
at least some incentive to testify on behalf of the state would have been apparent
from the fact that, while testifying, he was wearing an orange uniform and was
visibly in custody.
15
The defendant raises two claims of error that, in our estimation, do not
warrant extended discussion. First, the defendant claims that the trial court
improperly declined to provide an instruction on the legal maxim known as
‘‘falsus in uno, falsus in omnibus,’’ expressly directed at Snow’s testimony. The
defendant concedes that the following constituted the ‘‘essence’’ of his proposed
instruction: ‘‘[I]f you conclude that a witness has deliberately testified falsely
in some respect, you should carefully consider whether you should rely on any
of that person’s testimony.’’ (Internal quotation marks omitted.) A review of
the record indicates that such a charge was, in fact, provided to the jury.
Language directing that particular instruction to Snow was not warranted. See
State v. Aviles, 277 Conn. 281, 309, 891 A.2d 935 (‘‘[i]f 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’’ (internal
quotation marks omitted)), cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166 L. Ed.
2d 69 (2006). In reaching this conclusion, we note that the trial court gave a
specific accomplice credibility instruction, which expressly cautioned the jury
to review that type of testimony with particular care and to scrutinize it closely
before accepting it.
Second, the defendant claims that there was insufficient evidence to support
his conviction on the charge of criminal possession of a firearm. Because this
court is bound to construe the evidence presented by the state in the light
most favorable to sustaining the trial court’s finding of guilt on that charge;
see State v. Millan, 290 Conn. 816, 825, 966 A.2d 699 (2009); Snow’s testimony
that the defendant shot the victim, in and of itself, will suffice to sustain it.
The trial court, as the finder of fact, expressly credited Snow’s testimony. This
court will not disturb that decision. Cf. State v. Cavallo, 200 Conn. 664, 673,
513 A.2d 646 (1986) (‘‘The defendant’s argument reflects a misunderstanding
of the scope of our review of the sufficiency of the evidence underlying a
conviction. On appeal, we do not attempt to weigh the credibility of evidence
offered at trial, nor do we purport to substitute our judgment for that of
the jury.’’)