State v. Cowen ( 2021 )

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STATE OF CONNECTICUT v. JERMAINE
LEE COWAN
(AC 42450)
Alvord, Clark and Norcott, Js.
Syllabus
Convicted of the crimes of robbery in the second degree, larceny in the
third degree, and conspiracy to commit larceny in the third degree
in connection with his involvement in a bank robbery, the defendant
appealed to this court. One of the defendant’s coconspirators, C, pleaded
guilty to conspiracy to commit robbery in the first degree in connection
with the incident. C testified for the state at the defendant’s trial. She
testified that the state had not offered to reduce her sentence in exchange
for her testimony nor had she been promised any other benefit. Approxi-
mately two months after the defendant’s conviction, C’s sentence was
modified and, approximately nine months later, her sentence was further
modified to replace her probation period with a conditional discharge.
The defendant appealed and, subsequently, filed a motion for augmen-
tation and rectification, requesting that the trial court review the clerk’s
files for the cases against C and any relevant transcripts to determine
whether her sentence modifications were influenced by her testimony
against the defendant and that, if evidence of such influence existed,
the court hold a hearing pursuant to State v. Floyd (253 Conn. 700) to
determine whether a nonfrivolous, factual basis for a claim of unlawful
withholding of impeachment material under Brady v. Maryland (373
U.S. 83) existed. The trial court denied the motion and, following this
court’s order in response to the defendant’s motion for review, issued
an articulation of its decision. The defendant did not file an additional
motion for review requesting that this court order a Floyd hearing or
seek any other relief in connection with the trial court’s ruling on his
motion. Held that the defendant could not prevail on his claim that his
due process rights were violated because his conviction was obtained
on the basis of false testimony, which the state failed to correct: because
the defendant did not seek further review of the trial court’s articulation
or make any mention of a Floyd hearing in his brief to this court, this
court did not review the trial court’s decision denying the defendant’s
request to hold a Floyd hearing and reviewed only whether C’s testimony
was false and whether the state improperly withheld impeachment evi-
dence regarding her credibility; moreover, the defendant did not chal-
lenge the trial court’s findings that there was no evidence that the state
had promised to help C obtain a sentence reduction in exchange for
her testimony at the defendant’s trial, that C received a sentence modifi-
cation based on her testimony, or that the state unlawfully withheld
impeachment material from the defendant, nor did the evidence in the
record indicate that the state sought or advocated for C’s sentence to
be modified after she testified; accordingly, there was no basis for the
defendant’s claim.
Argued September 21—officially released November 9, 2021
Procedural History
Substitute information charging the defendant with
the crimes of robbery in the first degree, conspiracy to
commit robbery in the first degree, larceny in the third
degree, and conspiracy to commit larceny in the third
degree, brought to the Superior Court in the judicial
district of New Haven, geographical area number
twenty-three, and tried to the jury before B. Fischer,
J.; verdict and judgment of guilty of robbery in the
second degree, larceny in the third degree, and conspir-
acy to commit larceny in the third degree, from which
the defendant appealed to this court. Affirmed.
Jermaine Lee Cowan, self-represented, the appellant
(defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Patrick Griffin, state’s attor-
ney, and Seth Garbarsky, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
PER CURIAM. The self-represented defendant, Jer-
maine Lee Cowan,1 appeals from the judgment of con-
viction, rendered after a jury trial, of robbery in the
second degree, larceny in the third degree, and conspir-
acy to commit larceny in the third degree. On appeal,
the defendant claims that his due process rights were
violated because his conviction was obtained on the
basis of false testimony, which the state failed to cor-
rect. We conclude that this claim lacks merit and,
accordingly, affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. On March 12, 2014, Zakea Crawford-Brooks
(Crawford) drove the defendant and Jermaine Brooks2
to a bank in Woodbridge. The defendant and Jermaine
Brooks exited the vehicle and proceeded to rob the
bank, and, after they exited the bank with more than
$7700, Crawford served as the getaway driver.3 Craw-
ford and Jermaine Brooks were arrested and later
pleaded guilty in connection with their roles in the
robbery. The defendant also was arrested and elected
a jury trial.
A jury trial for the defendant commenced on February
8, 2016. On February 10, 2016, the state called Crawford
as a witness to testify against the defendant. Crawford
testified regarding the defendant’s role in the robbery
and stated that she had been convicted of conspiracy
to commit robbery in connection with the March 12,
2014 incident and was serving time in prison for that
conviction. Crawford further testified that she had not
been promised any benefit in exchange for her testi-
mony and that the state had not offered to reduce her
sentence for testifying against the defendant. On Febru-
ary 16, 2016, following the trial, the defendant was found
guilty of robbery in the second degree in violation of
General Statutes § 53a-135 (a) (2), larceny in the third
degree in violation of General Statutes § 53a-124, and
conspiracy to commit larceny in the third degree in
violation of General Statutes §§ 53a-48 and 53a-124. This
appeal followed.
During the pendency of this appeal, on June 25, 2019,
the defendant, ‘‘[p]ursuant to Practice Book §§ 60-2 (1)
and (8), 60-5, 61-10, 66-5, and State v. Floyd, 253 Conn.
700, 756 A.2d 799 (2000),’’ filed a motion for augmen-
tation and rectification of the record. In that motion,
he stated that he had learned, through an off-the-record
discussion with his trial counsel, that Crawford had
received a sentence reduction in exchange for her testi-
mony against him at his trial. He requested that the
trial court review the clerk’s files in the cases against
Crawford and any relevant transcripts to determine if
Crawford’s sentence reductions were influenced by her
testimony against him. The defendant further requested
that, if the court determined that there existed prima
facie evidence of such influence, it hold a hearing pursu-
ant to Floyd ‘‘in order to make such findings as may
be necessary for [his] counsel to determine whether
there exists a nonfrivolous factual basis for an appellate
claim of an unlawful withholding of impeachment mate-
rial under Brady v. Maryland, 373 U.S. 83, [87,] 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963) . . . .’’ On August 9,
2019, the defendant supplemented the motion by filing
a notice with additional information about Crawford’s
original sentencing and sentence modifications. On
August 13, 2019, the trial court summarily denied the
motion.
On August 23, 2019, the defendant, ‘‘[p]ursuant to
Practice Book . . . §§ 60-2, 66-5, 66-6 and 66-7,’’ filed
a motion for review with this court requesting that it
‘‘direct the trial court to hold an evidentiary hearing to
determine whether the state engaged in a Brady . . .
violation’’ or, alternatively, ‘‘to direct the trial court to
articulate its findings of fact and conclusions of law
underlying its denial of the defendant’s motion for recti-
fication so that the defendant [could] respond in an
amended motion for review.’’ On October 16, 2019, this
court granted his alternative request and ordered the
trial court to articulate the factual and legal basis for
its denial of the defendant’s motion.
On January 24, 2020, the trial court issued an articula-
tion, which included the following information regard-
ing Crawford’s criminal record. On January 26, 2014,
Crawford was arrested for the sale of narcotics. On
August 17, 2015, she pleaded guilty to that charge. On
the same date, pursuant to the Alford4 doctrine, she
pleaded guilty to conspiracy to commit robbery in the
first degree in connection with her role in the bank
robbery. On October 26, 2015, she was sentenced for
both crimes, and the sentences were to run concur-
rently. On April 5, 2016, roughly two months after the
jury found the defendant guilty, Crawford’s sentence
with respect to her conviction of conspiracy to commit
robbery was modified. On April 6, 2016, her sentence
with respect to her conviction for the sale of narcotics
was modified. The state did not oppose either sentence
modification. On December 27, 2016, Crawford’s con-
spiracy sentence was modified again, on the record.
The state did not object to that modification.5
In its articulation, the trial court stated that it had
reviewed the clerk’s files and transcripts for the robbery
and narcotics cases in which Crawford was the named
defendant. The court further stated that it had reviewed
the application and sentence modification form filed
by Crawford, along with a handwritten letter attached
to her modification request in which she articulated
why she was seeking a sentence modification. To sup-
port her request, Crawford stated in the handwritten
letter, among other things, that she had ‘‘[cooperated]
with the state on the trial of [the defendant].’’ The court
concluded: ‘‘This court’s review of the previously men-
tioned clerk’s files and transcripts does not show a
promise by the state to . . . Crawford . . . to help her
obtain a sentence reduction in exchange for her trial
testimony. There is nothing in the review of the record
that indicates . . . Crawford . . . received a modifi-
cation of her sentence based on her testimony at the
defendant’s trial. A complete review of the record finds
no evidence of an unlawful withholding of impeachment
material. The defendant has not met his burden for the
court to hold a . . . hearing pursuant to State v. Floyd,
[supra, 253 Conn. 700].’’ (Internal quotation marks omit-
ted.) The defendant did not file with this court a subse-
quent motion for review requesting that this court order
a Floyd hearing nor did he seek any other relief in
connection with the court’s ruling on his motion to
augment and rectify the record.
The defendant claims that his due process rights were
violated because his conviction was obtained on the
basis of false testimony, which the state failed to cor-
rect. Specifically, he alleges that Crawford falsely testi-
fied that she was not promised a benefit for testifying
against him. We conclude that this claim lacks merit.
We begin by setting forth the standard of review and
relevant principles of law. Under Brady v. Maryland,
supra, 373 U.S. 87, the state is required to disclose to
a defendant any materially exculpatory evidence in its
possession. During or after a defendant’s trial, ‘‘[t]he
state has a duty to correct the record if it knows that
a witness has testified falsely. . . . [D]ue process is
. . . offended if the state, although not soliciting false
evidence, allows it to go uncorrected when it appears.
. . . If a government witness falsely denies having
struck a bargain with the state, or substantially mischar-
acterizes the nature of the inducement, the state is
obliged to correct the misconception. . . . [A] convic-
tion obtained by the knowing use of perjured testimony
is fundamentally unfair, and must be set aside if there
is any reasonable likelihood that the false testimony
could have affected the judgment of the jury.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Turner v. Commissioner of Correction, 181
Conn. App. 743, 754–55, 187 A.3d 1163 (2018).
‘‘As set forth by the United States Supreme Court in
Brady v. Maryland, supra, 373 U.S. 87, [t]o establish a
Brady violation, the [defendant] must show that (1) the
government suppressed evidence, (2) the suppressed
evidence was favorable to the [defendant], and (3) it
was material [either to guilt or to punishment].’’ (Inter-
nal quotation marks omitted.) State v. Bryan, 193 Conn.
App. 285, 315, 219 A.3d 477, cert. denied, 334 Conn. 906,
220 A.3d 37 (2019).
‘‘Pursuant to State v. Floyd, supra, 253 Conn. 700, a
trial court may conduct a posttrial evidentiary hearing
to explore claims of potential Brady violations . . .
when a defendant was precluded from perfecting the
record due to new information obtained after judgment.
. . . In order to warrant such a hearing, a defendant
must produce prima facie evidence, direct or circum-
stantial, of a Brady violation unascertainable at trial.
. . . The trial court’s decision with respect to whether
to hold a Floyd hearing is reviewable by motion for
review pursuant to Practice Book § 66-7 . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Ouellette, 295 Conn. 173, 182 n.7, 989 A.2d 1048 (2010).
‘‘The existence of an undisclosed agreement is an
issue of fact to be determined by the trial court, and
the defendant has the burden of proving the existence of
undisclosed exculpatory evidence.’’ State v. Henderson,
83 Conn. App. 739, 744, 853 A.2d 115, cert. denied, 271
Conn. 913, 859 A.2d 572 (2004). ‘‘A court’s factual finding
as to whether undisclosed exculpatory evidence exists
will not be disturbed on appeal unless it is clearly erro-
neous. . . . A finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Citation omitted; internal quotation
marks omitted.) State v. Dixon, 72 Conn. App. 852, 859,
806 A.2d 1153, cert. denied, 262 Conn. 926, 814 A.2d
380 (2002).
In the present case, because the defendant did not
seek further review of the trial court’s articulation or
make any mention of a Floyd hearing in his brief to
this court, we are not tasked with reviewing the trial
court’s decision denying the defendant’s request to hold
a Floyd hearing. See State v. Ouellette, supra, 295 Conn.
183–84. Rather, the question before this court is whether
the defendant established, on the basis of the record
before the trial court, that Crawford’s testimony was
false and that the state improperly withheld impeach-
ment evidence regarding her credibility. See id., 185.
‘‘[T]his is a fact based claim to be determined by the trial
court, subject only to review for clear error.’’ Id., 187.
The trial court stated in its articulation that Crawford
testified that no one in the prosecutor’s office or law
enforcement promised her that she would receive a
benefit in exchange for her testimony against the defen-
dant. The court further stated that it found no evidence
that the state had promised to help Crawford obtain a
sentence reduction in exchange for her testimony at
the defendant’s trial, that Crawford received a sentence
modification based on her testimony at the defendant’s
trial, or that the state unlawfully withheld impeachment
material from the defendant. Notably, the defendant
does not challenge those factual findings on appeal.
The defendant has not produced any evidence that
the state made a promise to Crawford in exchange for
her testimony against him at his criminal trial. Instead,
he merely speculates that such a promise was made.
Furthermore, the evidence in the record does not indi-
cate that the state sought or advocated for Crawford’s
sentence to be modified after she testified at the defen-
dant’s trial. Rather, the record indicates only that the
state did not oppose Crawford’s requests. In light of
the court’s finding, which is fully supported by the
record, that the state did not make a promise to Craw-
ford in exchange for her testimony, there is no basis
for the defendant’s claim that the state improperly relied
on the allegedly false testimony of Crawford that she
was not promised a benefit in exchange for her testi-
mony. Accordingly, the defendant cannot prevail on
his claim.
The judgment is affirmed.
1
The defendant was represented by counsel at trial. On March 28, 2019,
after this appeal was filed, the defendant’s appellate counsel filed with this
court a motion for leave to withdraw as appellate counsel ‘‘[p]ursuant to
Practice Book §§ 43-34, 43-35 and 62-9 (d), Anders v. California, 386 U.S.
738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Pascucci, 161 Conn.
382, 288 A.2d 408 (1971) . . . .’’ Pursuant to Practice Book § 62-9 (d) (3),
counsel’s motion, his memorandum of law in support thereof, and transcripts
from the proceedings were referred to the trial court for decision. The trial
court held teleconferences with the defendant and his appellate counsel on
September 24 and October 22, 2020. On November 19, 2020, the trial court
granted the appellate counsel’s motion, and the defendant has since pro-
ceeded as a self-represented litigant.
2
Crawford is married to Jermaine Brooks. For clarity, we refer to her as
Crawford and to Jermaine Brooks by his full name throughout this opinion.
3
Jermaine Brooks’ sister, Mary Brooks, was also in the car at the time
of the robbery. She also was arrested in connection with the robbery, but
her participation in the crime is not relevant to the present appeal.
4
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
5
When Crawford’s robbery sentence was first modified on April 5, 2016,
her modified sentence included three years of probation. On December 27,
2016, the court held a hearing on the record and, again, modified the sentence
by replacing the period of probation with three years of conditional dis-
charge. At the hearing, Senior Assistant State’s Attorney Seth Garbarsky,
who represented the state, stated: ‘‘My understanding is [Crawford] has
found employment out of state and [the] probation [office], for whatever
reason, was either not willing or not able to transfer the probation down
south to where she resides. So I have no objection to converting that to a
conditional discharge.’’