State v. Rosa ( 2020 )

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STATE OF CONNECTICUT v. TYRONE ROSA
(AC 42267)
Keller, Elgo and Bright, Js.
Syllabus
Convicted of the crimes of murder, assault in the first degree and criminal
possession of a firearm, the defendant appealed, claiming that the state
violated his right to due process when it suppressed DNA evidence that
was material to his defense, in violation of Brady v. Maryland (373 U.S.
83), and did not disclose it until after the jury returned its verdict. The
defendant allegedly shot the victims, J and M, in the automobile in
which the three were riding after they had left an after-hours club. M
subsequently died from his injuries but J was able to flee after he was
shot. After the three men left the after-hours club, the defendant told
J to park the automobile on the street so the defendant could exit
the automobile to urinate. The defendant testified that, while he was
urinating by a nearby fence, an unknown person put a gun to his head
and told him not to move, yell or turn around. The defendant further
testified that he then heard two loud pop sounds. When he turned around
one minute later and saw no one, he went back to the automobile and
saw that the driver’s side door was open. The defendant testified that
he did not see anyone inside the automobile or on the street and then
ran away. A discarded sweatshirt that the police found in the vicinity
of the shootings was sent to the state’s scientific laboratory for DNA
testing. At the time of trial, DNA from the sweatshirt had not been
matched to anyone, including the defendant. Two weeks after the ver-
dict, the prosecutor notified defense counsel that a DNA profile from
the sweatshirt had matched a DNA sample that had been collected
from a convicted felon, O, whom defense counsel later learned was not
incarcerated at the time of the shootings. The defendant claimed that
the state had acquired the DNA evidence at least two months before
his trial began or while his trial was proceeding, and that it would have
discredited the testimony of J, the state’s key witness, and bolstered
the defense theory that the unknown individual was the shooter. At the
defendant’s sentencing proceeding, the trial court denied the defendant’s
motion for a judgment of acquittal. Held that the defendant failed to
prove that the DNA match between the sweatshirt and O constituted
material evidence within the meaning of Brady, there having been no
reasonable basis to conclude that the lack of the DNA evidence of the
match at trial undermined its fairness and resulted in a verdict that
was not worthy of confidence: it was reasonable to conclude that the
sweatshirt could have been left as a result of innocuous activity, rather
than by someone involved in the commission of the shootings, as the
defendant did not testify that the alleged unknown gunman was wearing
a sweatshirt, which was found more than half a block away from the
crime scene in an area that was reasonably likely to be traversed by
the public, there was no evidence that indicated how long the sweatshirt
had been there, that it was present when the police first responded to
the crime scene or that it contained gunpowder residue or blood, and,
as there was no indication that O was in the vicinity of the crime scene
at the time of the shootings or had any connection to the victims, the
defendant would not have been able to successfully raise a third party
culpability defense; moreover, even though the defendant was aware
of the existence of the sweatshirt at the time of trial and that it did not
contain his DNA, it was not necessary for defense counsel to know
about the DNA match in order to suggest to the jury that the sweatshirt
belonged to someone other than the defendant, bolstering his claim that
some unknown person committed the shootings; furthermore, the state’s
case against the defendant was strong, as it included J’s identification
of the defendant as the shooter, evidence that the defendant had a
motive to kill M when he learned at the after-hours club that M had
admitted to the killing the brother of a close friend of the defendant,
the defendant’s testimony about the events was very weak and lacked
credibility, and significant consciousness of guilt evidence implicated
the defendant, as he had lied to the police when they interviewed him
and had sought to have friends dispose of his cell phone and visit an
area near the crime scene to see if surveillance cameras were present.
Argued October 11, 2019—officially released March 17, 2020
Procedural History
Substitute information charging the defendant with
the crimes of murder, assault in the first degree and
criminal possession of a firearm, brought to the Supe-
rior Court in the judicial district of Hartford and tried
to the jury before Baldini, J.; verdict of guilty; there-
after, the court denied the defendant’s motion for a
judgment of acquittal and rendered judgment in accor-
dance with the verdict, from which the defendant
appealed; subsequently, the court, Baldini, J., granted
the defendant’s motion for rectification. Affirmed.
Daniel J. Krisch, assigned counsel, for the appel-
lant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Robin D. Krawczyk, senior assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Tyrone Rosa, appeals
from the judgment of conviction, rendered following a
jury trial, of one count of murder in violation of General
Statutes § 53a-54a, one count of assault in the first
degree in violation of General Statutes § 53a-59 (a) (5)
and one count of criminal possession of a firearm in
violation of General Statutes § 53a-217 (a) (1). The
defendant claims that the state suppressed evidence
in violation of Brady v. Maryland, 373 U.S. 83, 87,
83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Specifically,
the defendant asserts that, either before his trial began
or while the trial was ongoing, the state, via its agent,
the Department of Emergency Services and Public
Protection’s division of scientific services (division),
acquired evidence that the Combined DNA Index Sys-
tem (CODIS)1 reported that a DNA profile that was
developed from the swabbing of a discarded sweatshirt
found in the vicinity of the crime scene matched (CODIS
match) a DNA sample collected from a convicted felon,
Javier Otero. He asserts that this evidence, which was
favorable to him and material for purposes of Brady,
was not disclosed to the defense until after the jury had
returned a guilty verdict. He asserts that this evidence
would have bolstered his sole theory of defense that
an unknown gunman committed the crimes and also
would have discredited the state’s key witness. We
affirm the judgment of the trial court because we con-
clude that the defendant has failed to prove that the
CODIS match was material to his defense.
On the basis of the evidence presented at trial and
the reasonable inferences drawn therefrom, the jury
reasonably could have found the following facts. The
victims, Dederick ‘‘DJ’’ Jiminez and Hiram ‘‘Sito’’ Marti-
nez, had been close friends since childhood. In 2009,
Jiminez became friends with the defendant while the
two were incarcerated in the same prison. Jiminez knew
the defendant by his nicknames of ‘‘Flex’’ and ‘‘Pipone.’’
Jiminez introduced the defendant to Martinez, who
began selling drugs with the defendant.
The defendant was friends with Joel ‘‘Tuti’’ Gonzalez,
who had a brother named Mariano ‘‘Papa’’ Gonzalez.
The defendant claimed to have never met Mariano Gon-
zalez, but when the police showed the defendant his
photograph, the defendant identified him. On December
14, 2014, Mariano Gonzalez was murdered on Bond
Street in Hartford, and the police suspected that Marti-
nez was the perpetrator.
On December 20, 2014, Jiminez and Martinez drove
in Martinez’ tan-colored Honda to an after-hours club
on Francis Avenue in Hartford.2 They arrived between
3 and 4 a.m. and encountered the defendant inside the
club. The defendant was there with a close friend, Car-
los ‘‘Cuz Los’’ Mangual. At the club, the defendant began
talking to Martinez. Jimenez walked away while Marti-
nez and the defendant continued to talk. After Martinez
and the defendant stopped talking, the defendant
approached Jiminez and asked him what had happened
on Bond Street. Jiminez believed that Martinez had just
told the defendant that he was the one who had killed
Mariano Gonzalez on Bond Street. Jiminez replied that
Mariano Gonzalez ‘‘got what he deserved’’ because he
had tried to rob Martinez and had tried to ‘‘run up in
[Martinez’] house with his family.’’ After hearing this
information from Jiminez, the defendant’s mood
changed. He became quiet and no longer wanted to
talk. Jiminez, at that time, was unaware that Joel Gonza-
lez and Mariano Gonzalez were brothers, although he
knew that they were related. He also was unaware of
the defendant’s friendship with Joel Gonzalez.
At about 5 a.m., as Jiminez and Martinez were leaving
the after-hours club, the defendant approached them
and asked if they had any cigarettes. When they
responded that they did not, he asked them to give him
a ride to get some. Jiminez refused because there was no
room in the automobile’s backseat, which was crowded
with his possessions. Upon Martinez’ insistence, how-
ever, Martinez and Jiminez made room for the defen-
dant in the backseat of the automobile, behind the
driver. The defendant got inside of the automobile in
the space made for him. Jiminez got into the driver’s
seat and Martinez got into the front passenger seat.
The defendant directed Jiminez to drive to the resi-
dence of the defendant’s sister, which was located at
the corner of Park Street and Hazel Street. After learn-
ing that no one inside of the house had any cigarettes,
the defendant directed Jiminez to drive to a twenty-
four hour convenience store at Park Street and Broad
Street. When the three men arrived at the store, how-
ever, the defendant refused to go inside, insisting that
Martinez go inside instead. Martinez refused, and he
and the defendant argued until Jiminez got out of the
car, went inside the store, and purchased cigarettes.
After Jiminez purchased the cigarettes, the defendant
directed him to drive to Hendricxsen Avenue. When
they arrived at Hendricxsen Avenue, adjacent to a
vacant lot, the defendant told Jiminez to park the auto-
mobile because he needed to urinate. Jiminez complied
and parked the automobile close to the street corner
at which Hendricxsen Avenue and Masseek Street meet,
and the defendant exited the automobile.
Initially, Jiminez could not see where the defendant
went because the defendant had left the automobile
door open, which caused the interior dome light to
remain on and obscure his view of the defendant. Once
Jiminez had closed the door, however, he saw the defen-
dant standing behind the automobile, by a fence. Jimi-
nez heard the defendant talking on his cell phone as
he returned to the automobile. Once he was back inside
the automobile, the defendant asked Jiminez and Marti-
nez if they wanted to go to the home of one of his
friends and have a few drinks. Both of them agreed.
As he waited for directions from the defendant to
the friend’s house, Jiminez checked his cell phone. He
suddenly heard a loud bang from the backseat of the
automobile. Stunned by the loudness of the bang, he
brought his hands up to his ears and ducked down. He
then felt his right arm fall to his side and realized that
his arm did not feel right. He opened the driver’s side
door, got out of the automobile and ran. While running,
he looked back and saw only the defendant standing
outside of the automobile. He did not see Martinez
exit the automobile and did not see anyone else on
the street.
Jiminez ran through a vacant lot, toward a building
located at 62 Hendricxsen Avenue. A woman inside the
building yelled to him that she was coming downstairs
to open the door. Jiminez went inside and lay down on
the steps. The woman called 911.
At approximately 5:40 a.m., Hartford Police Officer
Christopher White was dispatched to 62 Hendricxsen
Avenue, where he found Jiminez in the stairwell, bleed-
ing and holding his shoulder. At approximately 5:41
a.m., Hartford Police Officer Matthew Steinmetz was
dispatched to the area of Hendricxsen Avenue and Mas-
seek Street on a report of a shooting and a victim inside
a tan Honda. Steinmetz found the engine of the tan
Honda running and Martinez slumped over the center
console with a gunshot wound to the back left side of
his head. He did not see any other people in the area.
Martinez later was pronounced dead as a result of
the gunshot wound that he had sustained to his head.
Jiminez, who had been shot twice, underwent surgery
to repair gunshot wounds to his shoulder and elbow.
Physicians were unable to remove the bullet that was
lodged in his shoulder without risking greater damage
and had to place permanent plates and rods in his
elbow, which had shattered. After surgery, Jiminez told
the police that the defendant, whom he called ‘‘Pipone,’’
had shot him. He gave a description of ‘‘Pipone’’ that
matched the defendant’s appearance at the time of the
shooting. Later, he gave a written statement to the
police and selected the defendant’s photograph from a
sequential photographic array. Hartford police lifted the
defendant’s fingerprint from the interior handle of the
rear door on the driver’s side of the automobile, next
to the seat where Jiminez had said the defendant was
sitting when he fired the gun.
After leaving the after-hours club, Mangual could not
find the defendant and repeatedly tried to call him. It
was not until 5:36 a.m. that the defendant answered his
phone. The defendant told Mangual to pick him up.
Thereafter, Mangual picked up the defendant on Ston-
ington Street in Hartford, which is near Hendricxsen
Avenue, where the shootings occurred, and is separated
from the scene of the crimes only by a vacant lot with
a path running through it. Portions of the path are horse-
shoe shaped. When Mangual arrived to pick up the
defendant, the defendant told him that he ‘‘almost
got shot.’’
After their initial investigation, the Hartford police
suspected that the defendant had some involvement in
the shooting of Jiminez and Martinez. At the request of
the police, on December 31, 2014, the defendant was
taken into custody by his parole officer and transported
to the Hartford Police Department, where he consented
to be interviewed. He provided the police with a fake
cell phone number and falsely denied that one of his
nicknames was ‘‘Flex.’’ The police found a public Face-
book profile for the defendant that reflected his use of
that nickname. Although the defendant admitted that
he knew Joel Gonzalez, he falsely denied associating
with him. The defendant’s cell phone records, which
later were seized by the police, revealed that the defen-
dant called Joel Gonzalez’ phone fifty-one times
between December 16 and December 20, 2014. The
police also found an online video in which the defendant
stated to Joel Gonzalez that he loved him and would
die for him. The defendant admitted to the police that
he was at the same after-hours club as Jiminez and
Martinez on the morning of the shooting. He indicated,
however, that although he had gotten into a gold auto-
mobile with them and had sat behind the driver’s seat,
he had not been driven anywhere in the automobile
with them that morning. He told the police that after
he left the after-hours club, he walked to the area of
Capitol Avenue and Rowe Avenue in Hartford to visit
a woman, but he could not provide the police with
her name.3
During the interview, Hartford Police Detective Dan-
iel R. Richter told the defendant that cell towers help the
police track people’s movements via their cell phones.
After Richter made this statement to the defendant,
Officer Luis Colon of the Department of Correction
listened to and recorded a phone call the defendant
made the very next day from prison to Joel Gonzalez,
in which he instructed Joel to make sure that Mangual
destroyed his cell phone ‘‘because of [cell] towers.’’
Colon also listened to and recorded another call from
the defendant to Joel Gonzalez on February 18, 2015,
the day on which the defendant was arrested on the
charges in this case. During that phone conversation,
the defendant directed Joel Gonzalez to ‘‘take a trip
down memory lane,’’ go around the ‘‘horseshoe,’’ and
‘‘go make sure that within that trail there’s nothing
[there] . . . . But if you seen that trail and cheese, I
see you,’’ make sure that there are no ‘‘cheese, I see
you.’’ The defendant’s statement was significant evi-
dence of his involvement in the crimes because there
was a horseshoe shaped area close to the shooting
scene and ‘‘cheese, I see you’’ is code for a surveillance
camera. Thereafter, Richter returned to the area near
the crime scene and checked several horseshoe shaped
areas but did not find any additional evidence.
The defendant testified at trial. His testimony con-
cerning the events that occurred on the morning of
December 20, 2014, was markedly different from the
information that he previously had relayed to law
enforcement personnel. He testified that, while he was
standing at the fence at Hendricxsen Avenue and urinat-
ing, an unknown person put a gun to his head and told
him not to move, yell or turn around. He stated that he
then heard two loud ‘‘pops,’’ a car door open and close,
and a whistle. One minute later, he turned around, and,
seeing no one, went back to the automobile. He saw
that the driver’s door was open but did not see anyone
inside or on the street and so he ran away. The defen-
dant admitted that he never told anyone about the pres-
ence of this unknown gunman prior to his trial testi-
mony. He claimed that he did not do so and that he
lied to the police during his interview because he did
not want his parole violated. He also admitted that he
did not testify to this version of events during his parole
revocation hearing.4
After approximately two and one-half days of deliber-
ation, the jury found the defendant guilty of murder,
assault in the first degree and criminal possession of a
firearm. The trial court denied the defendant’s postver-
dict motion for a judgment of acquittal, rendered judg-
ment of conviction, and sentenced him to seventy years
of incarceration. Additional facts and procedural his-
tory will be set forth as necessary.
The defendant’s sole claim on appeal is that the state,
through its agent, the division,5 suppressed evidence
favorable to him and material to his guilt or innocence,
namely, evidence of the CODIS match indicating that
the DNA of another convicted felon was found on a
discarded sweatshirt in the vicinity of the scene of the
shootings. He alleges that the division acquired this key
evidence either at least two months before his trial
began or while his trial was proceeding, and did not
disclose it until after his trial had concluded. He asserts
that evidence belonging to a convicted felon, found near
the crime scene, would have bolstered his sole theory
of defense—that an unknown individual was the
shooter—and discredited the state’s key witness, Jimi-
nez. He maintains that because the outcome of the trial
hinged on whether the jury believed him or Jiminez
with respect to the identity of the shooter, the failure
to disclose the CODIS match for nearly two weeks after
the verdict violated his right to due process under the
United States constitution6 and cast doubt on the fair-
ness of his trial.
The state counters that the defendant’s Brady claim
was waived when his trial counsel chose to pursue a
postjudgment motion for a judgment of acquittal rather
than properly raise his Brady claim by filing a motion
for a new trial, although he had a fair opportunity to
do so. Alternatively, the state, mainly focusing on the
issue of whether the evidence of the CODIS match had
been suppressed, argues that the record is inadequate
for this court to review the defendant’s unpreserved
Brady claim under the rule in State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by
In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
Finally, the state contends that if the defendant’s Brady
claim is reviewable, it fails on its merits because the
defendant failed to prove that (1) the division sup-
pressed favorable evidence regarding the CODIS match
and (2) the CODIS match constitutes material evidence.
We agree with the state that the defendant has failed
to prove that the newly disclosed evidence of the CODIS
match was material and, therefore, affirm the judgment
of the trial court.
The following additional facts and procedural history
are relevant to the defendant’s claim. At trial, Detective
Jason Lee testified that, on December 23, 2014, he was
working for the Hartford Police Department’s crime
scene division, which processes crime scenes. His main
function was to process the crime scene by taking pho-
tographs and collecting and preserving evidence. At
approximately 11:43 a.m. on December 20, 2014, he
was called to process a murder scene in the area of
Hendricxsen Avenue and Masseek Street. While there,
the lead detective in the case, Richter, who had arrived
on the scene at approximately 7:47 a.m., alerted him to
‘‘potential evidence’’ on a street ‘‘kind of . . . nearby’’
the crime scene and south of it. Lee ‘‘tried’’ to photo-
graph his ‘‘way down there to . . . show perspective’’
and then photographed two items, a sweatshirt and a
pair of sweatpants in that area. Lee testified that the
sweatshirt was on the ‘‘southeast corner of the intersec-
tion of Hendricxsen Avenue and Curcombe Street,’’ by
a sidewalk and a fence near ‘‘an apartment complex.’’
He saw the sweatpants behind a telephone pole as ‘‘you
headed east on Curcombe . . . .’’ After photographing
the items, he seized them. The sweatshirt and
sweatpants were processed and sent to the division
for testing.
The defendant’s trial ended on February 14, 2017. On
April 4, 2017, the date of the defendant’s sentencing,
the court began the proceeding by stating on the record
that a meeting had just taken place with counsel in
chambers to go over what ‘‘we were going to do today.
During that conversation, there was some information
provided to the court.’’ The court did not indicate the
nature of this information. Defense counsel then indi-
cated that he wanted to address one issue before sen-
tencing. He stated on the record that, on February 27,
2017, almost two weeks after the jury returned its ver-
dict, the prosecutor had e-mailed him, stating that she
had been notified by the division of a ‘‘CODIS hit’’
between Otero and the sweatshirt recovered from the
corner of Hendricxsen Avenue and Curcombe Street.
Defense counsel explained that ‘‘there was some DNA
taken from a sweatshirt’’ for testing, and that, ‘‘[a]t the
time of [the defendant’s] trial,’’ the DNA had not been
matched to anyone, including the defendant. Defense
counsel indicated that, after he received the e-mail from
the prosecutor, he did some research and learned that
Otero had not been incarcerated at the time of the
crimes and, thus, ‘‘potentially,’’ could have been a sus-
pect in this case. He further stated that the ‘‘information
was not available to anyone’’ and was ‘‘not insinuating’’
that the state had engaged in any ‘‘subterfuge’’ with
regard to it. Defense counsel then noted that, after the
prosecutor had alerted him to the CODIS match and
its potential value, he did research and consulted with
several attorneys about how to proceed. Referring to
Practice Book § 42-51, which governs motions for a
judgment of acquittal,7 and Practice Book § 42-53, which
governs motions for a new trial,8 defense counsel orally
made ‘‘a motion for [a] judgment of acquittal . . .
based on new evidence.’’
Defense counsel then stated that he knew that the
court was ‘‘aware of the fact that there is some informa-
tion that may [have] changed the balance of the case,
and I would ask for the court to allow me to advance
the argument and to grant that motion. And there’s—
there’s certain remedies; I think, you could overturn or
set aside the verdict, or you could grant a new trial
. . . it’s within your discretion.’’ Defense counsel then
advised the court that it would be his plan to go through
with the sentencing if the court denied his motion and
that the next stage would be to file a petition for a new
trial, which was the ‘‘proper mechanism’’ for raising
his concerns under Practice Book § 42-559 and General
Statutes § 52-270 (a).10 He concluded by asserting that
he had just made, ‘‘fairly, a complete record,’’ and asked
the court to rule on the motion.
The prosecutor responded that the standard for grant-
ing a motion for a judgment of acquittal, as set forth
in Practice Book § 42-51, had not been met because the
admitted evidence, which included Jiminez’ eyewitness
testimony that the defendant shot both him and Marti-
nez, fully and reasonably supported the jury’s verdict.
The prosecutor did not address the defendant’s request
for a new trial.
The court then stated that, ‘‘in the interest of justice,’’
it would entertain the defendant’s late motion for a
judgment of acquittal ‘‘under Practice Book §§ 42-51
and 42-52’’ because it had had some advance notice
from defense counsel that he would be making an oral
motion, and it had reviewed its notes, some of the
testimony, ‘‘the information that was presented,’’ and
the law pertaining to postverdict motions for a judgment
of acquittal. The court did not indicate that it was con-
sidering a motion for a new trial pursuant to Practice
Book § 42-53. The court then denied the motion for a
judgment of acquittal, specifically stating that it had
considered the ‘‘information that was conveyed to the
state’s attorney’s office, which was subsequently pro-
vided to defense counsel with regard to some evidence
that was discussed at this trial’’ in light of the evidence
presented in this case. It then proceeded to sentence
the defendant.
Our review of the proceedings before the trial court
on the defendant’s oral motion for a judgment of acquit-
tal or a new trial leads us to conclude that no claim of
a Brady violation ever was advanced to the trial court by
the defendant’s trial counsel. Rather, defense counsel
explicitly stated that he had been made aware of newly
discovered evidence, and that neither the prosecution
nor the defense were at fault for the postverdict timing
of this disclosure. Without introducing any documenta-
tion or other evidence, he made an argument that an
acquittal or a new trial was justified on the basis of
newly revealed information concerning the CODIS
match, which apparently had been discussed earlier
with the court in chambers, but made no legal argument
that would have alerted the court that he was making
a Brady claim.
The state, in opposing the defendant’s motion, appar-
ently did not perceive that defense counsel was making
a claim of untimely disclosure under Brady. Rather,
the state argued that the defendant had not met the
standard for the granting of a motion for a judgment of
acquittal. Defense counsel made no rebuttal argument
indicating that his claim was of a different nature. In
denying the motion for a judgment of acquittal, the
court did not set forth any factual findings or legal
conclusions that, in any way, addressed the essential
components of a Brady claim. As we will discuss in
greater detail, ‘‘[i]n order to prove a Brady violation,
the defendant must show: (1) that the prosecution sup-
pressed evidence after a request by the defense; (2)
that the evidence was favorable to the defense; and (3)
that the evidence was material.’’ (Internal quotation
marks omitted.) State v. Dixon, 72 Conn. App. 852, 858,
806 A.2d 1153, cert. denied, 262 Conn. 926, 814 A.2d
380 (2002).11
After filing the present appeal, appellate counsel for
the defendant filed a motion for rectification of the
record and requested that three documents that were
referenced as ‘‘information’’ during the hearing on his
motion for a judgment of acquittal or a new trial be
marked as court exhibits, as they were the basis for
his unpreserved Brady claim and necessary to his
appeal. He indicated in the motion for rectification that
there had been a conversation in chambers on April 4,
2017, and that some information had been provided to
the court. That information, he claimed, was disclosed
by the state in its February 27, 2017 e-mail to defense
counsel. He alleged that the three documents contained
‘‘critical facts,’’ which were not otherwise in the record,
in support of his Brady claim. These facts included the
dates on which (1) Otero was incarcerated, (2) Otero’s
DNA sample was taken and (3) the division, the state’s
investigative agent, matched the DNA from the
sweatshirt to Otero’s DNA and provided notice of this
result to the Hartford police and the Hartford state’s
attorney’s office. Those three documents, which were
appended to the defendant’s motion for rectification,
were: (1) a printout of the February 27, 2017 e-mail
from the state to defense counsel, in which it disclosed
the CODIS hit; (2) the offender hit notification form,
dated February 23, 2017, that the division sent to the
Hartford and New Britain police departments and the
Hartford state’s attorney’s office, informing them of the
CODIS hit; and (3) an inmate information sheet from
the Department of Correction regarding the incarcera-
tion of Otero. On September 12, 2018, the trial court
granted the motion for rectification and marked the
three documents as court exhibits.12 The court stated
that the page number designations at the bottom of
the documents were not there at the time of its initial
discussion and review of the documents, but that they
were otherwise ‘‘what [the] court recollect[ed] [were]
discussed in this matter previously.’’13 The defendant
sought no further augmentation of the record.
As previously discussed, in this case, the record
reveals that defense trial counsel never argued, and the
trial court never considered, a Brady claim. Therefore,
the defendant’s Brady claim is unpreserved, a fact the
defendant concedes in his reply brief, wherein he first
asserts that his claim is subject to review under State
v. Golding, supra, 213 Conn. 239–40, as modified by In
re Yasiel R., supra, 317 Conn. 781, yet falls short of
affirmatively requesting such review. Under Golding,
‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following
conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitu-
tional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . .
exists and . . . deprived the defendant of a fair trial;
and (4) if subject to harmless error analysis, the state
has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt. In
the absence of any one of these conditions, the defen-
dant’s claim will fail.’’ (Emphasis in original; footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40.
‘‘The first two steps in the Golding analysis address
the reviewability of the claim, while the last two steps
involve the merits of the claim.’’ (Internal quotation
marks omitted.) State v. Jerrell R., 187 Conn. App. 537,
543, 202 A.3d 1044, cert. denied, 331 Conn. 918, 204
A.3d 1160 (2019).
An affirmative request for review under Golding is
not a prerequisite for review. See State v. Elson, 311
Conn. 726, 754–55, 91 A.3d 862 (2014) (to obtain Golding
review of unpreserved claim, defendant need only raise
claim in main brief, present adequate record for review
and affirmatively demonstrate that claim seeks to vindi-
cate fundamental constitutional right). The defendant’s
claim is reviewable under Golding because the record
is adequate for review and, in his main brief, he has
alleged a violation of his constitutional right to due
process and provided analysis of his claim. Therefore,
pursuant to Golding, we will proceed to examine the
defendant’s unpreserved claim that the state committed
a Brady violation by failing to disclose the CODIS
match.
‘‘Our analysis of the defendant’s claim begins with
the pertinent standard, set forth in Brady and its prog-
eny, by which we determine whether the state’s failure
to disclose evidence has violated a defendant’s right to
a fair trial. In Brady, the United States Supreme Court
held that the suppression by the prosecution of evi-
dence favorable to an accused upon request violates
due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution. . . . In Strickler v.
Greene, 527 U.S. 263, [281–82] 119 S. Ct. 1936, 144 L.
Ed. 2d 286 (1999), the United States Supreme Court
identified the three essential components of a Brady
claim, all of which must be established to warrant a
new trial: The evidence at issue must be favorable to
the accused, either because it is exculpatory, or because
it is impeaching; that evidence must have been sup-
pressed by the [s]tate, either [wilfully] or inadvertently;
and prejudice must have ensued. . . . Under the last
Brady prong, the prejudice that the defendant suffered
as a result of the impropriety must have been material
to the case, such that the favorable evidence could
reasonably be taken to put the whole case in such a
different light as to undermine confidence in the ver-
dict.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Skakel, 276 Conn. 633, 699–700, 888 A.2d
985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L.
Ed. 2d 428 (2006), discussing Kyles v. Whitley, 514 U.S.
419, 435, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). ‘‘If
. . . [the defendant] . . . fail[s] to meet his burden as
to [any] one of the three prongs of the Brady test, then
[the court] must conclude that a Brady violation has
not occurred.’’ Morant v. Commissioner of Correction,
117 Conn. App. 279, 296, 979 A.2d 507, cert. denied, 294
Conn. 906, 982 A.2d 1080 (2009).
In setting forth his claim on appeal, the defendant
does not claim that an error was committed by the trial
court. As we have discussed previously, the defendant
moved for rectification to have certain documents made
part of the record so that he could raise this Brady
claim for the first time on appeal, and he maintains that
the record, as rectified, renders his claim adequate for
review.14 Stated otherwise, the defendant relies solely
on the facts in the record to demonstrate that a Brady
violation occurred and, thus, he was deprived of a
fair trial.
With respect to the record, we observe that ‘‘[o]ur
Supreme Court has clarified that [a] record is not inade-
quate for Golding purposes because the trial court has
not reached a conclusion of law if the record contains
the factual predicates for making such a determination.
. . . Nevertheless, [i]f the facts revealed by the record
are insufficient, unclear or ambiguous as to whether a
constitutional violation has occurred, we will not
attempt to supplement or reconstruct the record, or to
make factual determinations, in order to decide the
defendant’s claim.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Morales, 164 Conn. App.
143, 167, 136 A.3d 278, cert. denied, 321 Conn. 916, 136
A.3d 1275 (2016). Although the parties dispute whether
the late disclosed CODIS match is favorable to the
defense and whether it was suppressed by the division,
they do not dispute the nature of the late disclosed
evidence or where it was located. A sweatshirt was
found approximately one-half to three-quarters of a
block away from the car in which the shootings
occurred. After the sweatshirt was tested for DNA, a
CODIS match to Otero, who was not incarcerated at
the time of the shootings, was generated. In the present
case, we are being asked by the defendant to reach a
legal conclusion that the trial court had not been asked
to address, on the basis of an undisputed factual record
that we deem adequate for review of the Brady claim
as framed by the defendant in this appeal. See State v.
Torres, 230 Conn. 372, 379, 645 A.2d 529 (1994). On
the basis of the record demonstrating these facts and,
assuming, without deciding, that this evidence is favor-
able to the defense and was suppressed, we are able
to dispose of the defendant’s Brady claim by addressing
only the materiality prong.15
Next, we turn to the standard by which we review
materiality in the context of a Brady analysis. We rely
on the standard set forth in State v. Ortiz, 280 Conn.
686, 718–22, 911 A.2d 1055 (2006), in which our Supreme
Court ‘‘clarified’’ the standard for review of materiality
in a Brady claim because it determined that prior cases
had not squarely articulated one.16
The court in Ortiz joined sister state and federal
jurisdictions that have concluded that a trial court’s
determination as to materiality under Brady presents
a mixed question of law and fact subject to plenary
review, with the underlying historical facts subject to
review for clear error. Id., 720. Our Supreme Court,
however, also expressed a preference for providing the
trial judge with the opportunity to first consider a Brady
claim, as the trial judge has observed firsthand the pro-
ceedings at trial, and it indicated that its ‘‘independent
review nevertheless is informed by [the trial judge’s]
assessment of the impact of the Brady violation . . . .’’
Id., 721–22. The court explained: ‘‘[W]e find persuasive
the Second Circuit Court of [Appeals’] approach of
engaging in independent review, yet giving ‘great
weight’ to the ‘trial judge’s conclusion as to the effect
of nondisclosure on the outcome of the trial . . . .’ ’’
Id., quoting United States v. Zagari, 111 F.3d 307, 320
(2d Cir.), cert. denied sub nom. Herzog v. United States,
522 U.S. 983, 118 S. Ct. 445, 139 L. Ed. 2d 381 (1997),
and cert. denied sub nom. Shay v. United States, 522
U.S. 988, 118 S. Ct. 455, 139 L. Ed. 2d 390 (1997).
Despite our Supreme Court’s preference to first have
the trial court assess the impact of a Brady violation,
we do not interpret this stated preference as an inviola-
ble rule that any Brady claim must first be fully pre-
sented and preserved in the trial court or be deemed
waived. That would be a derogation of defendants’
rights under Golding. This court has reviewed unpre-
served Brady claims under Golding when there was
no dispute as to the nature of the allegedly suppressed
evidence. For example, in State v. Bryan, 193 Conn.
App. 285, 219 A.3d 477, cert. denied, 334 Conn. 906, 220
A.3d 37 (2019), despite the fact that the trial court did
not adjudicate the specific issue of whether the state
committed a Brady violation by failing to disclose cer-
tain internal affairs records of a police department, this
court determined that no additional proceedings under
State v. Floyd, 253 Conn. 700, 730–32, 756 A.2d 799
(2000), were necessary. State v. Bryan, supra, 313; see
footnote 14 of this opinion. It proceeded to examine
the defendant’s unpreserved Brady claim, noted that
the state conceded that certain records had not been
disclosed, and then assumed, without deciding, that the
internal affairs records were favorable to the defendant
as impeachment evidence against one of the testifying
police officers.17 Id., 316. Addressing only the materiality
prong, the court in Bryan concluded that there was no
Brady violation because the records were not material
to the outcome of the defendant’s trial and, thus, the
state’s late disclosure did not run afoul of Brady. Id.;
see also State v. Bethea, 187 Conn. App. 263, 280–82, 202
A.3d 429 (conducting Golding review of unpreserved
Brady claim by assuming evidence was favorable to
defense, reviewing transcript of pretrial hearing, and
finding, based on transcript, that defendant had equal
access to witness to obtain statement and, thus, there
was no evidence of suppression), cert. denied, 332
Conn. 904, 208 A.3d 1239 (2019).18
Having resolved the issues of reviewability that per-
tain to the claim before us, we turn to the merits of the
claim under Golding. ‘‘Not every failure by the state to
disclose favorable evidence rises to the level of a Brady
violation. Indeed, a prosecutor’s failure to disclose
favorable evidence will constitute a violation of Brady
only if the evidence is found to be material.’’ (Internal
quotation marks omitted.) Gaskin v. Commissioner of
Correction, 183 Conn. App. 496, 529–30, 193 A.3d 625
(2018). Under the last Brady prong, the evidence must
have been material to the case, such that ‘‘the favorable
evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence
in the verdict.’’ Kyles v. Whitley, supra, 514 U.S. 435.
The mere possibility that the undisclosed information
might have helped the defense or might have affected
the outcome of the trial does not meet the materiality
standard. See State v. Pollitt, supra, 205 Conn. 149.
For the reasons that follow, we conclude that, even
assuming that the state suppressed favorable evidence,
the defendant has failed to show that the evidence the
state allegedly suppressed was material.
In deciding whether the defendant has met his burden
on the materiality prong, this court views the undis-
closed favorable evidence, ‘‘not . . . in a vacuum . . .
[but] in the context of all the evidence introduced at
trial.’’ (Internal quotation marks omitted.) Id., 143.
‘‘[E]vidence that may first appear to be quite compelling
when considered alone can lose its potency when
weighed and measured with all the other evidence, both
inculpatory and exculpatory. Implicit in the standard
of materiality is the notion that the significance of any
particular bit of evidence can only be determined by
comparison to the rest.’’ (Internal quotation marks omit-
ted.) Smith v. Commissioner of Correction, 141 Conn.
App. 626, 639, 62 A.2d 554, cert. denied, 308 Conn. 947,
67 A.3d 290 (2013). The favorable evidence must cast
the whole case in a different light. It is not enough for
the defendant to show that the undisclosed evidence
would have allowed the defense to weaken or destroy
a particular prosecution witness or item of evidence to
which the undisclosed evidence relates. See Kyles v.
Whitley, supra, 514 U.S. 460 (Scalia, J., dissenting).
When the evidence admitted at trial strongly supports
the defendant’s guilt, it is less likely that the undisclosed
evidence would undermine confidence in the verdict.
See, e.g., State v. Dupigney, 295 Conn. 50, 73, 988 A.2d
851 (2010).
In this case, the defendant failed to prove that the
CODIS match constituted material evidence. The defen-
dant did not testify that the alleged unknown gunman
was wearing a sweatshirt, and the sweatshirt was not
found at the actual crime scene but more than half a
block away19 at the corner of Hendricxsen Avenue and
Curcombe Street. There is no evidence to indicate how
long the sweatshirt had been there or that it was even
present when the police first responded to the crime
scene. There is no indication that the sweatshirt con-
tained any signs of gunpowder residue or blood. Rich-
ter, who did not arrive at the crime scene until 7:43
a.m. on the morning of December 20, 2014, testified at
trial that he alerted Lee to the sweatshirt. As depicted
in photographs taken by Lee near the crime scene, the
sweatshirt was found next to a sidewalk and in front
of a fence surrounding an apartment complex, an area
that is reasonably likely to be traversed by the public.
We are guided in our analysis by our Supreme Court’s
analysis in State v. Dupigney, supra, 295 Conn. 50, in
which the petitioner, who had been convicted of mur-
der, sought postconviction forensic DNA testing of a
hat that was found on a driveway near the crime scene
and had been introduced into evidence at his criminal
trial. In Dupigney, the state had presented evidence at
trial that the shooter had been wearing a hat. Id., 70.
In order to be entitled to postconviction DNA testing
of evidence, the petitioner, pursuant to General Statutes
§ 54-102kk (b) (1), had to demonstrate a reasonable
probability that he ‘‘would not have been prosecuted
or convicted if exculpatory results had been obtained
through DNA testing . . . .’’ The trial court denied the
petition. State v. Dupigney, supra, 53. On appeal, our
Supreme Court, applying the reasonable probability
standard under § 54-102kk, found that the possibility
that DNA testing of the hat could show that biological
material from the hat belonged to neither the victim nor
the petitioner would not create a reasonable probability
that the jury could have formed a reasonable doubt that
the petitioner was the shooter. Id., 73. In making its
decision, the court noted that the term ‘‘reasonable
probability’’ has a well established meaning—‘‘a proba-
bility sufficient to undermine confidence in the out-
come’’—in the context of postconviction challenges,
generally, including the Brady line of cases governing
postconviction challenges on the basis of prosecutorial
failure to disclose evidence to an accused. (Internal
quotation marks omitted.) Id., 60–61. Accordingly, it
applied the Brady materiality standard to its determina-
tion of whether the petitioner had shown sufficient
cause to obtain postconviction DNA testing of the hat.
Id., 64. In other words, the question that was addressed
by the court in Dupigney was whether confidence in the
outcome of the petitioner’s trial would be undermined
if the results of testing on the hat were to reveal the
presence of DNA that matched neither the petitioner
nor the victim. After noting the generic nature of the
black knit hat found approximately twenty-two feet
from the scene of the crime and the fact that the state
never argued that the shooter had worn that particular
hat, the court ruled that the link between the hat recov-
ered in the driveway and the hat worn by the shooter
was inconclusive. Id., 71–72. In light of the strong evi-
dence, entirely unrelated to the hat, identifying the peti-
tioner as the shooter, the court determined that even
if biological material could be found on the hat that did
not belong to the petitioner or the victim, it would
not undermine confidence in the fairness of the guilty
verdict. Id., 72–73.
In the present case, the connection between the
sweatshirt and the crimes is even more tenuous than
the connection between the black knit hat and the crime
in Dupigney. Specifically, the sweatshirt was found
farther away from the crime scene, and the defendant
did not testify that the alleged unknown shooter was
wearing a dark colored sweatshirt.
Furthermore, in the present case, although defense
counsel provided documentation to the trial court that
Otero was not in prison at the time of the crimes, there
is no indication that he was in the vicinity of the crime
scene on or about December 20, 2014, or that he had
any connection to the victims, let alone a motive to
harm them. Without a clear link between Otero and the
crimes, the defendant would not have been able to
successfully raise a third-party culpability defense,
assigning blame to Otero. In the absence of other evi-
dence that connected Otero to the crime, it is reason-
able to conclude that the sweatshirt at issue, which was
located more than half a block from the crime scene,
could have been left as a result of innocuous activity,
rather than by someone involved in the commission of
the shootings. See State v. Gray-Brown, 188 Conn. App.
446, 474, 204 A.3d 1161 (evidence of partial fingerprint
of third person on vehicle victim was driving at time
of robbery raised only bare suspicion that third party
committed crime and was not relevant to jury’s consid-
eration; defendant needs to demonstrate direct connec-
tion between third party and crimes to warrant giving
third-party culpability instruction to jury), cert. denied,
331 Conn. 922, 205 A.3d 568 (2019).
Even though, at the time of the trial, defense counsel
did not know of the CODIS match, which linked Otero
to the sweatshirt, he nonetheless was aware of the
existence of the sweatshirt and the fact that it did not
contain the defendant’s DNA. In fact, in closing argu-
ment, defense counsel argued to the jury that it should
question why it had heard nothing from the state about
evidence found at or near the crime scene, but which
testing revealed not to belong to the defendant. Defense
counsel referred to the sweatshirt, fingerprints, and a
cigarette butt. Obviously, it was not necessary for
defense counsel to know about the CODIS match to
suggest to the jury that the sweatshirt found up the
street near the scene of the crimes belonged to someone
other than the defendant in order to bolster his claim
that some unknown person committed the shootings.
He could have cross-examined Richter, who testified
that the sweatshirt revealed no useful evidence, in more
depth and asked him to explain in detail what forensic
analysis, if any, the state had performed and, specifi-
cally, whether the division had created a DNA profile
from a swabbing of the sweatshirt, whether that profile
was compared to the defendant’s DNA profile, and what
the results were. See United States v. Alston, 899 F.3d
135, 147 (2d Cir. 2018) (to extent that defendant argues
exculpatory testimony was material because it bol-
stered his reasonable perception that third party was
legitimate businessman, defendant had opportunity to
make that argument to jury through evidence already
admitted, specifically, third party’s trial testimony),
cert. denied, U.S. , 139 S. Ct. 1282, 203 L. Ed.
2d 292 (2019).
Although the defendant places great weight on the
fact that Otero was a convicted felon, Otero’s felony
conviction was for larceny in the second degree, not
for a violent crime. If Otero’s felony history presumes
a propensity to commit the crimes in this case, the same
could be said of the defendant’s criminal history, for
he admitted in his testimony that he had several prior
felony convictions, several for larceny.
Viewing the evidence as a whole, the state’s case
against the defendant was strong. It included Jiminez’
eyewitness identification of the defendant, a person
with whom he was familiar, as the shooter. Jiminez also
testified that he exited the car immediately after being
shot and ran in the direction of the apartment building
in front of which the sweatshirt was discarded but that
he saw no one else except the defendant in the area.
There also was evidence of a motive. The jury reason-
ably could have found that the defendant’s mood at the
after-hours club suddenly changed when he became
aware that Martinez had admitted to killing Mariano
Gonzalez, and the defendant was very close with Mari-
ano Gonzalez’ brother, Joel Gonzalez. The defendant
himself testified that he had vouched for Martinez with
the Los Solidos gang after Martinez had said the gang
suspected him of killing someone.20
There also was significant consciousness of guilt evi-
dence implicating the defendant. There was evidence
that he repeatedly lied to the police during his interview
with them, by giving an incorrect number for his cell
phone and by denying that one of his nicknames was
Flex, that he associated with Joel Gonzalez, and that
he drove anywhere with Jiminez and Martinez on the
night of the shootings. There was evidence that he
called Joel Gonzalez to ask him to tell Mangual to get
rid of the defendant’s cell phone after the police told
him they could track phone locations via cell towers.
He also called Joel Gonzalez a second time to ask him
to go to an area close to the crime scene, the ‘‘horse-
shoe,’’ to see if there were any surveillance cameras
present.
Particularly damaging to the defendant’s testimony
that an unknown gunman was the perpetrator was his
admission on cross-examination that he previously did
not describe that version of events when he was inter-
viewed by the police or when it would have behooved
him to do so at his parole revocation hearing, which
resulted from his having violated his parole by commit-
ting the crimes in this case. His testimonial version of
the events that transpired also lacks credibility in cer-
tain areas. As a matter of logic, certain unanswered
questions undermine the defendant’s version of events.
For example, how could he look into the car when the
driver’s side door was open and not see the dying,
or already deceased, Martinez slumped over the front
console? And, why would he have told his friend, Man-
gual, who picked him up near the crime scene early
that morning, only that he ‘‘almost got shot,’’ and why
wouldn’t the defense have asked Mangual, on cross-
examination, to corroborate that conversation?
There was strong evidence inculpating the defendant,
including the eyewitness testimony of Jimenez, the evi-
dence that he had a motive to commit the crimes, and
evidence that he was conscious of his guilt. Although
the defendant presented his own testimony concerning
an unknown shooter, a version of events that he did
not previously relate to the police or to parole officials,
such evidence was very weak. Additionally, the jury
was made aware of the fact that a sweatshirt and a pair
of sweatpants had been discovered near the crime scene
but that these items were not connected to the defen-
dant. Also, the defendant is unable to demonstrate any
actual connection between Otero and the victims in
this case. On the basis of the foregoing, there is no
reasonable basis to conclude that the lack of the evi-
dence of the CODIS match during the defendant’s trial
undermined its fairness and resulted in a verdict not
worthy of confidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See, e.g., State v. Webb, 128 Conn. App. 846, 852–83 n.3, 19 A.3d 678
(generally describing national CODIS database), cert. denied, 303 Conn. 907,
32 A.3d 961 (2011).
2
Jiminez described the after-hours club as a ‘‘place where people go after
the clubs are closed down.’’
3
During his trial testimony, the defendant admitted that he had fabricated
much of the information he gave the police during their interview of him,
including his statements about his association with Joel Gonzalez and about
not driving anywhere with Jiminez and Martinez in Martinez’ car after he
left the after-hours club on December 20, 2014.
4
In fact, when the defendant began referring to his encounter with an
unknown gunman on Hendricxsen Avenue, the prosecutor declared she was
surprised and had not been given any notification that the defendant was
going to assert a third-party culpability defense.
5
The state concedes that it sent the sweatshirt that was seized to the
division for DNA testing and is not contesting agency for purposes of this
appeal. See State v. Guerrera, 331 Conn. 628, 631, 206 A.3d 160 (2019) (when
Department of Correction acts as investigative arm of state in conducting
review of inmate phone calls at behest of prosecutor as part of state’s
investigation into criminal case, such calls are subject to disclosure require-
ments of Brady); Stevenson v. Commissioner of Correction, 165 Conn. App.
355, 367–68, 139 A.3d 718 (whether individual or agency is ‘‘arm of the
prosecution,’’ does not turn on status of person or agency but on what they
did—i.e., whether they worked in conjunction with police or prosecutor
and whether they actively assisted in investigation of crime), cert. denied,
322 Conn. 903, 138 A.3d 933 (2016).
6
Although the defendant also claims a due process violation under our
state constitution; see Conn. Const., art. I, § 8; he does not provide a separate
analysis thereunder or argue that the Connecticut constitution provides
greater protection than the federal constitution. Accordingly, review of his
claim is limited to the federal constitution. See State v. Ortiz, 280 Conn.
686, 689 n.2, 911 A.2d 1055 (2006).
7
Practice Book § 42-51 provides in relevant part: ‘‘If the jury returns a
verdict of guilty, the judicial authority, upon motion of the defendant . . .
shall order the entry of a judgment of acquittal as to any offense specified
in the verdict, or any lesser included offense, for which the evidence does
not reasonably permit a finding of guilty beyond a reasonable doubt. If the
judicial authority directs an acquittal for the offense specified in the verdict,
but not for a lesser included offense, it may either:
‘‘(1) Modify the verdict accordingly; or
‘‘(2) Grant the defendant a new trial as to the lesser included offense.’’
Practice Book § 42-52 provides in relevant part: ‘‘Unless the judicial author-
ity, in the interests of justice, permits otherwise, a motion for a judgment
of acquittal shall be made within five days after a . . . verdict . . . .’’
8
Practice Book § 42-53 provides in relevant part: ‘‘(a) Upon motion of the
defendant, the judicial authority may grant a new trial if it is required in
the interests of justice. Unless the defendant’s noncompliance with these
rules or with other requirements of law bars his or her asserting the error,
the judicial authority shall grant the motion:
‘‘(1) For an error by reason of which the defendant is constitutionally
entitled to a new trial; or
‘‘(2) For any other error which the defendant can establish was materially
injurious to him or her. . . .’’
9
Practice Book § 42-55 provides: ‘‘A request for a new trial on the ground
of newly discovered evidence shall be called a petition for a new trial and
shall be brought in accordance with General Statutes § 52-270. The judicial
authority may grant the petition even though an appeal is pending.’’
10
General Statutes § 52-270 (a) provides: ‘‘The Superior Court may grant
a new trial of any action that may come before it, for mispleading, the
discovery of new evidence or want of actual notice of the action to any
defendant or of a reasonable opportunity to appear and defend, when a just
defense in whole or part existed, or the want of actual notice to any plaintiff
of the entry of a nonsuit for failure to appear at trial or dismissal for
failure to prosecute with reasonable diligence, or for other reasonable cause,
according to the usual rules in such cases. The judges of the Superior Court
may in addition provide by rule for the granting of new trials upon prompt
request in cases where the parties or their counsel have not adequately
protected their rights during the original trial of an action.’’
In his brief, the defendant indicates that no petition for a new trial has
been filed.
11
In its brief, the state argues that the defendant waived his Brady claim
when defense counsel had a fair opportunity to raise a Brady claim and
made a strategic decision not to pursue one. We decline to construe the
argument of defense counsel, in seeking a judgment of acquittal or a new
trial on the basis of what he characterized as ‘‘newly discovered evidence,’’
rather than suppressed evidence, as a knowing and intelligent waiver of a
possible Brady claim. On the basis of our review of the record, we are not
convinced that defense counsel realized that he may have had the factual
requisites to raise a Brady claim.
12
The court marked the February 27, 2017 e-mail to defense counsel from
the prosecutor, the February 23, 2017 offender hit notification form from
the division, and the Department of Correction information sheet concerning
Otero as court exhibits one through three, respectively. To avoid confusion
with court exhibits one through three, which had been marked as court
exhibits during the defendant’s trial, we will refer to the three documents
added to the record through rectification as the state’s e-mail, the offender
hit notification form and the Department of Correction information sheet.
13
Because there was no specific reference, on the record, to any of these
documents during the hearing on the defendant’s postverdict motion on
April 4, 2014, we conclude that the court, in indicating that it had previously
been made aware of the documentation sought to be introduced in the
defendant’s motion for rectification, was referring to the same ‘‘information’’
to which it alluded as having been provided to it in chambers prior to the
commencement of the April 4 hearing.
14
In moving for rectification and seeking to have only the three documents
made part of the record so that he could raise a Brady claim on appeal,
the defendant should have been aware of other options available to him to
further perfect the record and to preserve the claim at trial, including
requesting an evidentiary hearing pursuant to State v. Floyd, 253 Conn. 700,
730–32, 756 A.2d 799 (2000) (defendant may request hearing to create factual
record and obtain factual findings necessary to properly present Brady
claim on appeal when he was precluded from doing so previously because
new information was obtained postjudgment). After the defendant’s motion
for rectification was granted, he chose not to ask the trial court to conduct
an evidentiary hearing to consider the merits of his Brady claim based on
this new documentation.
The defendant is not now entitled to have the matter remanded by this
court to the trial court for a Floyd hearing to further perfect the record,
especially because he has indicated, adamantly, that he does not need, and
therefore, does not request, this alternative relief. See State v. Ouellette, 295
Conn. 173, 183–84, 989 A.2d 1048 (2010) (although defendant claimed in his
intermediate appeal that Appellate Court should order Floyd hearing to
determine whether state withheld impeachment evidence, he did not renew
claim in his certified appeal to Supreme Court or ask for such relief in
alternative; consequently, he abandoned any such claim for relief).
15
Because the defendant bears the burden of proving each of the three
prongs of the Brady test, we need not address the favorability or the suppres-
sion prongs. See, e.g., Morant v. Commissioner of Correction, supra, 117
Conn. App. 296 (if petitioner fails to satisfy burden of proof as to one
of Brady’s three prongs, court must conclude that Brady violation has
not occurred).
16
In Ortiz, the court discussed the lack of clarity in its prior opinions, as
follows: ‘‘Compare, e.g., [State v. Wilcox, 254 Conn. 441, 452–55, 758 A.2d
824 (2000)] (reciting governing legal principles without stating standard of
appellate review) with State v. Pollitt, 205 Conn. 132, 147–49, 531 A.2d 125
(1987) (noting that ‘the determination of materiality has been said to be
‘‘inevitably fact-bound’’ and like other factual issues is committed to the
trial court in the first instance,’ but characterizing trial court’s determinations
about whether there was ‘‘ ‘reasonable probability’ ’’ that the result of the
trial would have been different,’ as ‘conclusions of law,’ but also recognizing
‘the difficulty inherent in measuring the effect of nondisclosure in the course
of a lengthy trial with many witnesses and exhibits such as this; this lack
of certitude suggests deference by a reviewing court especially in the
weighing of evidence’) and State v. Shannon, 212 Conn. 387, 400, 563 A.2d
646 (citing Pollitt, but reviewing trial court’s materiality determination for
abuse of discretion), cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed.
2d 512 (1989).’’ State v. Ortiz, supra, 280 Conn. 718–19.
17
There were two sets of internal affairs records in State v. Bryan, supra,
193 Conn. App. 310–11, that were the subject of the defendant’s Brady
claim: a set from 2008 and a set from 2005. During a 2017 hearing on a
motion for augmentation and rectification before the trial court, the state
conceded that it had not disclosed the 2008 records prior to trial, and, during
a second hearing on a motion for augmentation and rectification of the
record in 2018, the parties entered into a stipulation that the 2005 records
also had not been disclosed prior to trial. Id., 309–11. The trial court, however,
never ruled on whether the state’s failure to disclose the records constituted
a Brady violation. Id., 312–13.
18
Our Supreme Court in State v. Ortiz, supra, 280 Conn. 686, noted that
its decision in State v. Floyd, 253 Conn. 700, 732–33, 756 A.2d 799 (2000),
had established a procedure by which evidence could be developed to
explore claims of potential Brady violations in ‘‘the unusual situation in
which a defendant was precluded from perfecting the record due to new
information obtained after judgment.’’ (Internal quotation marks omitted.)
State v. Ortiz, supra, 713 n.17. This would include seeking a full evidentiary
hearing, a Floyd hearing, to augment the record. The purpose of a Floyd
hearing is to permit the ‘‘rapid resolution of these fact sensitive constitutional
issues and mitigate the effects of the passage of time that would accompany
requiring defendants to wait to address these matters until after the conclu-
sion of direct appellate review. Indeed, the potential memory fade attendant
to this delay conceivably might even reward the state for violating Brady.’’
Id., 714 n.17. In determining that we can address unpreserved Brady claims
under Golding in a direct appeal, we are furthering the policy favored by
our Supreme Court of promoting ‘‘rapid resolution’’ of Brady issues. Id.
19
The defendant does not dispute that the sweatshirt was 600 feet away
from where Martinez’ vehicle was stopped on Hendricxsen Avenue at the
time of the shootings.
20
The defendant testified that he had once been a member of the Los
Solidos street gang.