State v. Stephenson ( 2021 )

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