State v. Bruny

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STATE v. BRUNY—CONCURRENCE
ECKER, J., concurring. I agree with, and join, parts
I, II and IV of the majority opinion, and I concur in
the result reached in part III regarding the trial court’s
failure to issue a special credibility instruction with
respect to the state’s witness, Leon Pruden. In my view,
the trial court should have instructed the jury that Pru-
den was a jailhouse informant whose testimony should
be examined with greater scrutiny than that of an ordi-
nary witness because, as Justice Palmer explained in
his concurring opinion in State v. Diaz, 302 Conn. 93,
121, 25 A.3d 594 (2011), ‘‘informers seeking a benefit
from the state have a strong motive to falsely inculpate
the accused, and because the state has a strong incen-
tive not to enter into an express or explicit agreement
with such witnesses, preferring, instead, to keep any
such understanding unstated . . . .’’ Nonetheless, I
conclude that the instructional error was harmless on
the present factual record, and I therefore agree with
the majority that the judgment of conviction should
be affirmed.
The majority grounds its decision in part III on the
putative distinction between a jailhouse informant who
hopes for beneficial treatment from the state in exchange
for testimony ‘‘regarding statements made [to the infor-
mant] by the defendant,’’ on the one hand, and an infor-
mant who seeks the very same benefit in exchange for
testimony regarding ‘‘events’’ that were ‘‘observed’’ by
the informant, on the other. (Emphasis in original.) Part
III of the majority opinion. The majority points out that
this distinction derives from the majority opinion in
State v. Diaz, supra, 302 Conn. 93, which concluded
that it was not plain error for the trial court to fail to
give a special credibility instruction, in the absence of
a request by the defendant, if the informants ‘‘testified
only about the events surrounding the shooting’’ as
opposed to the defendant’s statements about those
events. Id., 104. The Diaz majority also declined to
exercise its supervisory authority to require a special
credibility instruction for all incarcerated informants
who testify about ‘‘events surrounding the crime that
[they] observed . . . .’’ Id., 110.
Despite the broad language in Diaz, our holding in
that case was quite narrow—a trial court is not required,
sua sponte, to issue a special credibility instruction for
incarcerated witnesses who testify about events they
observed if such an instruction has not been requested
by the defendant.1 The present appeal is distinguishable
from Diaz because the defendant in this case, unlike
the defendant in Diaz, filed a timely and otherwise
proper request for a special credibility instruction at
trial and, therefore, does not seek relief on appeal under
either the plain error or supervisory authority doctrine.
The procedural point is significant because reversal for
plain error ‘‘is reserved for truly extraordinary situa-
tions [in which] the existence of the error is so obvious
that it affects the fairness and integrity of and public
confidence in the judicial proceedings.’’ (Internal quota-
tion marks omitted.) State v. Fagan, 280 Conn. 69, 87,
905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127
S. Ct. 1491, 167 L. Ed. 2d 236 (2007). Again, a defendant
cannot establish plain error when, as in Diaz, the sub-
stantive legal right urged by the defendant would have
required an extension of existing law. See State v. Diaz,
supra, 302 Conn. 104 n.8 (‘‘[i]t is axiomatic that the trial
court’s proper application of the law existing at the
time of trial cannot constitute reversible error under
the plain error doctrine’’). Likewise, the majority’s
refusal to exercise its supervisory authority in Diaz
does not determine the result here because this court’s
supervisory powers represent ‘‘an extraordinary rem-
edy that should be used sparingly . . . .’’ (Internal quo-
tation marks omitted.) State v. Edwards, 314 Conn. 465,
498, 102 A.3d 52 (2014). Diaz, in short, does not control
the open issue of whether a trial court must give a
special credibility instruction when requested by a
defendant in the case of an informant who hopes to
obtain favorable treatment from the state in exchange
for testimony about an event that he or she claims to
have witnessed.
Turning to that open issue, I do not find the distinc-
tion between informants who testify about events per-
ceived and those who testify about statements overhead
to be a persuasive basis on which to deny a timely
requested special credibility instruction. The Diaz
majority cited absolutely no authority in support of this
distinction, and my research has uncovered none.2 In
language quoted and adopted by the majority in this
case; see part III of the majority opinion; the majority
in Diaz baldly asserted that ‘‘[t]estimony by a jailhouse
informant about a . . . confession is inherently sus-
pect because of the ease with which such testimony
can be fabricated, the difficulty in subjecting witnesses
who give such testimony to meaningful cross-examina-
tion and the great weight that juries tend to give to
confession evidence. . . . In contrast, when a witness
testifies about events surrounding the crime that the
witness observed, the testimony can be compared with
the testimony of other witnesses about those events,
and the ability of the witness to observe and remember
the events can be tested. Accordingly, cross-examina-
tion and argument by counsel are far more likely to
be adequate tools for exposing the truth in these cases
than in cases involving jailhouse confessions.’’ (Cita-
tions omitted; emphasis added.) State v. Diaz, supra,302 Conn. 109–10.
Again, Diaz provided no legal authority to establish
the truth or accuracy of the italicized assertion. Nor
does the majority in the present case identify any basis
for the conclusion. It is, of course, true that testimony
about a confession sometimes may be more difficult
to verify or to discredit than testimony about an event.
But the converse is also true: testimony about an event
may be more difficult to verify or to discredit than
testimony about a statement. This should not surprise
us because a statement is an event, and the ease or
difficulty of proving any event will depend on the cir-
cumstances. Spoken words are intangible and evanes-
cent, and they leave no mark unless recorded. Many
events—including the momentary display of a gun in
a private space, which allegedly occurred in Pruden’s
presence—are equally impermanent. The relative diffi-
culty of testing the credibility of an informant who
testifies regarding such statements or events will
depend on the underlying factual circumstances. Was
it physically possible that the informant was in the
particular location at the particular time of the alleged
statement or event? Was there anyone else present to
corroborate the informant’s testimony? Does the con-
tent of the informant’s testimony (including the level
of detail, corroborating facts, etc.) help establish or
undermine the claim of veracity? Did the informant
make a record or tell anyone about the statement or
event soon after its occurrence? In more concrete
terms, if Pruden testified that he had heard the defen-
dant confess one month after the shooting instead of
testifying that he had seen the defendant’s gun one
month before the shooting, why would it be so much
more difficult to cross-examine him about the veracity
of that testimony? Alternatively, if he had testified that
he saw the defendant in possession of the gun when
no one else was present, why would it be any less
difficult to cross-examine him about the veracity of that
testimony? These questions may help to explain why
the distinction articulated by the majority in Diaz and
relied on by the majority in the present case lacks sup-
porting authority.
Even accepting, purely for the sake of argument, the
claim that testimony about past statements is harder
to disprove than testimony about past events, I would
still disagree that this thin distinction justifies a differ-
ent rule governing special credibility instructions. For
the reasons explained in Justice Palmer’s compelling
concurring opinion in Diaz; State v. Diaz, supra, 302
Conn. 115–22 (Palmer, J., concurring); the majority is
mistaken when it asserts that the central rationale ani-
mating the cases adopting the special credibility instruc-
tion is inapplicable in the present context. See part III
of the majority opinion. This misapprehension derives
from a misidentification of that rationale. The need for
a special credibility instruction is not driven primarily
by concerns about the relative difficulty involved in
disproving the informant’s testimony. Rather, as we
explained in State v. Patterson, 276 Conn. 452, 886 A.2d
777 (2005), the primary and predominant concern at
stake is that ‘‘an informant who has been promised a
benefit by the state in return for his or her testimony has
a powerful incentive, fueled by self-interest, to implicate
falsely the accused. Consequently, the testimony of
such an informant, like that of an accomplice, is inevita-
bly suspect. As the United States Supreme Court observed
. . . years ago, [t]he use of informers, accessories,
accomplices, false friends, or any of the other betrayals
which are dirty business may raise serious questions
of credibility. On Lee v. United States, 343 U.S. 747,
757, 72 S. Ct. 967, 96 L. Ed. 1270 (1952). The United
States Supreme Court therefore has allowed defendants
broad latitude to probe [informants’] credibility by
cross-examination and ha[s] counseled submission of
the credibility issue to the jury with careful instruc-
tions. . . . Banks v. Dretke, 540 U.S. 668, 702, 124 S.
Ct. 1256, 157 L. Ed. 2d 1166 (2004), quoting On Lee v.
United States, supra, 757; see Hoffa v. United States,
385 U.S. 293, 311–12, 87 S. Ct. 408, 17 L. Ed. 2d 374(1966). Indeed, the court recently has characterized
such instructions as one of the customary, truth-pro-
moting precautions that generally accompany the testi-
mony of informants. Banks v. Dretke, supra, 701.
Because the testimony of an informant who expects to
receive a benefit from the state in exchange for his or
her cooperation is no less suspect than the testimony
of an accomplice who expects leniency from the state
. . . the defendant was entitled to an instruction sub-
stantially in accord with the one that he had sought.’’
(Emphasis in original; footnote omitted; internal quota-
tion marks omitted.) State v. Patterson, supra, 469–70.
This fundamental rationale applies when an incarcer-
ated informant, hoping for a benefit from the state in
exchange for his or her testimony, testifies about any
past event, whether it be a statement or some other
alleged occurrence. ‘‘A special credibility instruction,
which cautions the jury to review the testimony of such
an informer with particular scrutiny and to weigh his
or her testimony with greater care than the testimony of
an ordinary witness, is important in such circumstances
because a defendant has a strong interest in ensuring
that the jury appreciates the potential that exists for
false testimony due to the informer’s self-interest.’’ State
v. Diaz, supra, 302 Conn. 115 (Palmer, J., concurring).
It is that simple.3
Applying these principles to the present case, I con-
clude that Pruden was a jailhouse informant and, there-
fore, that the defendant was entitled to the requested
special credibility instruction. Pruden observed the
defendant with a semiautomatic, black handgun one
month before the shooting, but he did not approach
the police with this inculpatory information until March
5, 2014—the day he was arrested in connection with a
pending drug case. Pruden admitted that he hoped that,
by sharing this information with the police, he would
receive favorable treatment in his own criminal pro-
ceeding. Under these circumstances, it is beyond dis-
pute that Pruden had ‘‘a powerful incentive, fueled by
self-interest, to implicate falsely the accused,’’ and his
testimony, therefore, was ‘‘inevitably suspect.’’ State v.
Patterson, supra, 276 Conn. 469. Accordingly, I would
hold that the trial court abused its discretion in denying
the defendant’s request for a special credibility
instruction.
Nonetheless, I also would conclude that the trial
court’s failure to issue the requested instruction was
harmless. Such an error ‘‘is harmless when an appellate
court has a fair assurance that the error did not substan-
tially affect the verdict. . . . Several factors guide our
determination of whether the trial court’s failure to give
the requested instruction was harmful. These consider-
ations include: (1) the extent to which [the jailhouse
informant’s] apparent motive for falsifying his testi-
mony was brought to the attention of the jury, by cross-
examination or otherwise; (2) the nature of the court’s
instructions on witness credibility; (3) whether [the
informant’s] testimony was corroborated by substantial
independent evidence; and (4) the relative importance
of [the informant’s] testimony to the state’s case.’’
(Internal quotation marks omitted.) State v. Jones, 337
Conn. 486, 509, 254 A.3d 239 (2020).
As the majority points out, ‘‘defense counsel effec-
tively impeached the credibility of Pruden during cross-
examination’’ by eliciting ‘‘testimony from Pruden that
he did not come forward with this information until the
very day that he was arrested, seven months after he
heard about the shooting,’’ and that he only ‘‘came for-
ward because he was hoping to obtain a benefit for
himself.’’ Part III of the majority opinion. Indeed, the
defendant presented expert testimony regarding the unre-
liability of jailhouse informant testimony, and ‘‘[d]efense
counsel highlighted the problem during closing argu-
ment, saying of Pruden, ‘it is the hope for benefits that
causes the problem, the unreliability. Pruden had an
incentive to lie that is different from an ordinary wit-
ness; that’s why you need to look carefully at this testi-
mony.’ ’’ Id. The jury was made well aware of Pruden’s
apparent motive to testify falsely.
The trial court also gave a general credibility instruc-
tion that directed the jury to consider, among other
things, whether a witness had ‘‘an interest in the out-
come of the case or any bias or prejudice concerning
any party or any matter involved in the case . . . .’’ The
trial court did not name Pruden in its special credibility
instruction, but it did instruct the jury on the dangers
posed by jailhouse informant testimony, and the expert
witness and defense counsel both urged the jury to
consider these dangers when assessing the credibility
of Pruden’s testimony. In combination with the other
information made available to the jury regarding the
potential unreliability of this testimony, the jury had
the tools at its disposal to scrutinize Pruden’s testimony
more carefully than that of an ordinary witness.
Admittedly, Pruden’s testimony regarding the defen-
dant’s possession of a gun one month before the shoot-
ing was not corroborated, but Pruden was not an
eyewitness to the crime, nor was his testimony neces-
sary to convict the defendant. Indeed, Pruden’s testi-
mony was relatively unimportant to the state’s case,
which relied predominately on the video footage of
the Cheetah Club, as well as the eyewitness and DNA
evidence placing the defendant at the club on the night
of the murder, despite the defendant’s contrary state-
ments to the police. On the whole, I am confident that
the trial court’s failure to issue the requested special
credibility instruction did not substantially affect the
jury’s verdict.
For the foregoing reasons, I concur in the result
reached in part III of the majority opinion.
1
I understand that this court stated in Diaz that ‘‘the trial court’s failure
to give a special credibility instruction . . . would not have been improper
even if the defendant had requested such an instruction’’; State v. Diaz,
supra, 302 Conn. 104; but that statement was made in the context of plain
error analysis, and I take it to mean simply that, even if the request had
been made by the defendant, an adverse ruling by the trial court would not
have been improper under existing law. See id., 104 n.8 (‘‘[i]t is axiomatic
that the trial court’s proper application of the law existing at the time of
trial cannot constitute reversible error under the plain error doctrine’’). To
the extent that the quoted language was intended to signal that this court
would have rejected the defendant’s argument for an extension of the
existing law if, hypothetically, his claim had been properly preserved for
appellate review, the statement was pure dictum and does not bind us. See,
e.g., Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270
Conn. 778, 810, 855 A.2d 174 (2004) (statements that are not essential to
court’s holding ‘‘may be regarded as dicta and, thus, not binding’’).
2
The other cases on which the majority in the present case relies, namely,
State v. Jones, 337 Conn. 486, 254 A.3d 239 (2020), State v. Arroyo, 292
Conn. 558, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296,
175 L. Ed. 2d 1086 (2010), and State v. Patterson, 276 Conn. 452, 886 A.2d
777 (2005), lend no support to its conclusion that a special credibility instruc-
tion is unnecessary when an incarcerated informant testifies about an event
rather than a statement. These cases did not involve or discuss jailhouse
informant testimony regarding an event; they involved only jailhouse infor-
mant testimony regarding a defendant’s statements and hold that a special
credibility instruction is necessary in that context. Nothing in Jones, Arroyo,
or Patterson implies that a special credibility instruction is unnecessary,
inappropriate, or inadvisable in the present context.
3
The second ground on which the majority relies is ‘‘the wisdom of
harmonizing our definition of jailhouse informants with the legislature’s
recent definition of a ‘jailhouse witness’ as ‘a person who offers or provides
testimony concerning statements made to such person by another person
with whom he or she was incarcerated, or an incarcerated person who
offers or provides testimony concerning statements made to such person
by another person who is suspected of or charged with committing a criminal
offense.’’ (Internal quotation marks omitted.) Part III of the majority opinion,
quoting State v. Jones, 337 Conn. 486, 506–507, 254 A.3d 239 (2020). The
court in Jones expanded the definition of a jailhouse informant for purposes
of a special credibility jury instruction and explained that one reason to do
so was to adopt a definition matching the legislative definition of a ‘‘jailhouse
witness’’ set forth in § 6 of No. 19-132 of the 2019 Public Acts, which is
codified at General Statutes § 54-86o (d). See State v. Jones, supra, 505–507.
In Jones, however, we could ‘‘think of no reason to employ a more restrictive
definition than the one adopted by the legislature to address precisely the
same policy concern, namely, the potential unreliability of a jailhouse
witness’ testimony . . . .’’ (Emphasis added.) Id., 507 n.12. Nothing in the
logic or reasoning of Jones requires the rule to remain forever frozen there-
after or prevents the legislature or this court from adopting a more expansive
definition of ‘‘jailhouse informant’’ or ‘‘jailhouse witness’’ to protect against
the potential unreliability of such a witness’ testimony. Indeed, in Jones,
we recognized that it was not ‘‘necessary to harmonize the definitions’’ but
that it was ‘‘preferable to do so unless there is a good reason’’ to depart
from the legislative definition. (Emphasis omitted.) Id. In my view, there is
good reason to depart from the legislative definition to address the situation
presented in this case, and I see this departure as wholly consistent with
the policy underlying the statute.