State v. Collymore

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STATE OF CONNECTICUT v.
ANTHONY COLLYMORE
(SC 19868)
Palmer, McDonald, D’Auria, Kahn,
Ecker and Vertefeuille, Js.
Syllabus
Pursuant to State v. Dickson (322 Conn. 410), in cases in which the state
seeks to present an in-court identification that has not been preceded
by a successful identification during a nonsuggestive identification pro-
cedure, the state must request permission to do so, and the trial court
may grant such permission only if it determines that there is no factual
dispute as to the identity of the perpetrator or that the ability of the
eyewitness to identify the defendant is not at issue.
Convicted of the crimes of felony murder, attempt to commit robbery in
the first degree, conspiracy to commit robbery in the first degree, and
criminal possession of a firearm in connection with the shooting of the
victim, the defendant appealed to the Appellate Court. The defendant
and two friends, B and V, had driven to an apartment complex intending
to commit a robbery. B waited in the car while the defendant and V,
who were armed with guns, attempted to rob the victim. When the
victim fled, the defendant and V fired gunshots, fatally wounding the
victim, and then drove with B to the apartment of a friend, O. B, V and
O gave statements to the police that incriminated the defendant. B
also inculpated the defendant during his testimony at the defendant’s
probable cause hearing, and V inculpated the defendant when he pleaded
guilty to charges related to the shooting. At trial, the state granted B,
V and O immunity from prosecution, pursuant to statute (§ 54-47a), in
exchange for their testimony during the state’s case-in-chief. B, V and
O then repudiated their prior statements that incriminated the defendant
and testified so as to exonerate him during the state’s case-in-chief. The
state introduced their prior inconsistent statements and questioned them
regarding those statements. On cross-examination, defense counsel
questioned B, V and O extensively about their prior, incriminating state-
ments and their new, exculpatory testimony. When B, V and O were
later called to testify in the defendant’s case-in-chief, the prosecutor
informed them that the state was not extending its grant of immunity
to their testimony for the defense. The trial court informed B, V and O
that the law was unclear as to whether the immunity they already had
been granted extended to their testimony as defense witnesses and
stated that they should be guided by the advice of their counsel. B, V
and O then invoked their fifth amendment rights against self-incrimina-
tion. The defendant claimed, inter alia, that the trial court violated his
rights to due process and to compulsory process when it improperly
permitted the state to revoke the immunity that it had granted to B, V
and O. He contended that the testimony of B, V and O would have
addressed exculpatory, material and noncollateral matters, and would
have rehabilitated his credibility and the credibility of B, V and O.
The Appellate Court upheld the defendant’s conviction and rejected his
constitutional claim, reasoning that the state did not revoke the immunity
it had granted to B, V and O when they were called to testify in the
defendant’s case-in-chief but, rather, refused to grant additional immu-
nity for any transaction, matter or thing not testified to and immunized
during the state’s case. The Appellate Court also determined, inter alia,
that the defendant was not constitutionally entitled to have additional
immunity granted to B, V and O because he failed to establish that the
additional testimony would have been essential to his defense or would
not have been cumulative. The defendant thereafter filed a motion for
reconsideration in light of Dickson, a case that was decided after his
criminal trial but that applied retroactively to all cases then pending
on appeal, claiming that the trial court had improperly permitted two
witnesses, the victim’s mother, R, and the victim’s brother, G, to make
first time in-court identifications of him as one of the persons who shot
at the victim, in violation of the rule that such identifications must be
prescreened by the trial court. The Appellate Court denied the motion.
On the granting of certification, the defendant appealed to this court.
Held:
1. The defendant could not prevail on his claim that his rights to due process
and to compulsory process were violated when the state declined to
extend the immunity that it had granted under § 54-47a to B, V and O
during the state’s case-in-chief to their testimony during the defendant’s
case-in-chief because, even if that immunity could not be revoked during
the defendant’s case-in-chief and the state’s failure to extend such immu-
nity violated § 54-47a, that violation was not constitutional in nature
and, accordingly, did not violate his constitutional rights: to the extent
that B, V and O could have invoked their fifth amendment rights even
if immunity had been extended to their testimony during the defendant’s
case-in-chief, the defendant failed to establish that any improper revoca-
tion of immunity by the state violated his constitutional rights because
the witnesses would not have answered questions for which they validly
invoked those rights, and, thus, their testimony in response to those
questions would not have been exculpatory; moreover, this court con-
cluded, with respect to those matters for which B, V and O could not have
validly invoked their fifth amendment rights if the previously granted
immunity had extended to the defendant’s case-in-chief, that, even if
the state acted unfairly and committed misconduct by engaging in a
discriminatory grant of immunity to gain a tactical advantage when it
declined to extend immunity to the witnesses’ testimony during the
defendant’s case-in-chief, the defendant failed to establish that the testi-
mony he was prevented from offering during his case-in-chief was not
cumulative, as the defendant failed to establish what new information
B, V and O would have provided if the state had not declined to extend
immunity beyond the state’s case; furthermore, the state’s purported
revocation of immunity, coupled with the trial court’s warnings to B, V
and O that the law on whether immunity extended to their testimony
as defense witnesses was unclear and that they should be guided by
the advice of their counsel, did not drive them from the witness stand
and, therefore, did not violate the defendant’s constitutional rights, as
neither the trial court nor the state threatened B, V or O that testifying
for the defendant or in a manner unfavorable to the state would lead
to perjury charges or to having a plea deal revoked, and the state’s
informing those witnesses of what it believed to be the scope of § 54-
47a was not so coercive or intimidating as to substantially interfere with
their decision whether to testify in the defendant’s case-in-chief.
2. The defendant could not prevail on his claim that his right to due process
was violated, pursuant to Dickson, when R and G purportedly gave first
time in-court identification testimony about him, as that testimony, to
the extent that it was improper, was harmless beyond a reasonable
doubt: contrary to the state’s assertion that the rule created in Dickson
was inapplicable to the unsolicited and unanticipated identification testi-
mony of R and G, all first time in-court identifications are subject to
Dickson, regardless of whether the state intends or attempts to introduce
such an identification, and, because the defendant’s identity as a shooter
was not at issue as to all of the charges except for criminal possession
of a firearm, the testimony of R and G did not implicate the defendant’s
due process rights as to those charges; moreover, although the defen-
dant’s identity as a shooter was at issue with respect to the charge of
criminal possession of a firearm and, thus, the testimony of R and G
implicated the defendant’s due process rights with respect to that charge,
the admission of that testimony was harmless beyond a reasonable
doubt, as the statements of B, V and O to the police and the testimony
of other witnesses indicated that the defendant possessed or used a
gun during the shooting and that he possessed a gun after the shooting,
defense counsel extensively cross-examined G as to his testimony and
attacked his credibility, the state’s overall reliance on the testimony of
R and G was minimal, and, even without their testimony, there was
sufficient evidence for the jury to find the defendant guilty beyond a
reasonable doubt.
Argued November 7, 2018—officially released January 21, 2020
Procedural History
Substitute information charging the defendant with
two counts of the crime of attempt to commit robbery
in the first degree, and with one count each of the
crimes of felony murder, conspiracy to commit robbery
in the first degree and criminal possession of a firearm,
brought to the Superior Court in the judicial district of
Waterbury and tried to the jury before Cremins, J.;
verdict of guilty; thereafter, the court vacated the ver-
dict as to one count of attempt to commit robbery
in the first degree; subsequently, the court rendered
judgment, from which the defendant appealed to the
Appellate Court, Gruendel, Lavine and Mullins, Js.,
which affirmed the trial court’s judgment; thereafter,
the Appellate Court denied the defendant’s motion for
reconsideration, and the defendant, on the granting of
certification, appealed to this court. Affirmed.
Susan M. Hankins, assigned counsel, for the appel-
lant (defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom were Cynthia S. Serafini, senior assis-
tant state’s attorney, and, on the brief, Maureen Platt,
state’s attorney, for the appellee (state).
Opinion
D’AURIA, J. The primary question in this appeal is
whether the defendant, Anthony Collymore, was
harmed when the state, after granting immunity to three
witnesses under General Statutes § 54-47a for testimony
given during the state’s case-in-chief, revoked that
immunity when the same witnesses later testified in
the defense case-in-chief. The defendant appeals from
the judgment of the Appellate Court affirming the judg-
ment of conviction, rendered after a jury trial, of felony
murder in violation of General Statutes § 53a-54c,
attempt to commit robbery in the first degree in viola-
tion of General Statutes §§ 53a-49 (a) (2) and 53a-134
(a) (2), conspiracy to commit robbery in the first degree
in violation of General Statutes §§ 53a-48 (a) and 53a-
134 (a), and criminal possession of a firearm in violation
of General Statutes § 53a-217 (a) (1).1 He claims that
his rights to due process and a fair trial under the
fourteenth amendment to the United States constitu-
tion, and his rights to compulsory process and to pres-
ent a defense under the sixth amendment to the United
States constitution were violated when the trial court
improperly permitted the state to revoke the immunity
of the three witnesses, causing them to invoke their
fifth amendment right against self-incrimination. Addi-
tionally, the defendant claims that the Appellate Court
improperly denied his motion to reconsider in light of
this court’s holding in State v. Dickson, 322 Conn. 410,
141 A.3d 810 (2016), cert. denied, U.S. , 137 S.
Ct. 2263, 198 L. Ed. 2d 713 (2017), on the ground that
two witnesses made improper, first time in-court identi-
fications. Because we conclude that the revocation of
immunity did not violate the defendant’s constitutional
rights and that any improprieties regarding the first
time in-court identifications were harmless, we affirm
the judgment of the Appellate Court.
The following facts, reasonably found by the jury and
recited by the Appellate Court in State v. Collymore,
168 Conn. App. 847, 850–52, 148 A.3d 1059 (2016), and
procedural history are relevant to our review of these
claims: ‘‘On January 18, 2010, the defendant and two of
his friends, Rayshaun Bugg and Vance Wilson (Vance),
were driving around Waterbury in a white . . . four
door, rental Hyundai that the defendant’s aunt and uncle
had lent to him, looking to rob someone. Eventually
the three men drove into the Diamond Court apartment
complex, which comprises eight apartment buildings.
Halfway down the main road of the complex, the men
saw an expensive looking, black Acura sport utility
vehicle (SUV) and decided to rob its driver.
‘‘They drove down a small road behind the apart-
ments, where the defendant and Vance pulled out their
guns and exited the Hyundai, saying that they were
going to rob the driver of the SUV. The defendant had
a .38 revolver, and Vance had a .357 revolver. Bugg
drove to the end of the small road and waited. The
defendant and Vance reached the SUV, saw two young
children running toward its driver, and decided to call
off the robbery. The SUV drove away.
‘‘The defendant and Vance then saw seventeen year
old John Frazier (victim) and decided to rob him. As
they were trying to rob him, he slapped away one of
their guns and ran toward his apartment, at the entrance
to the complex. The defendant and Vance both fired
shots at the victim.
‘‘Bugg drove up, the defendant and Vance ran over
to the Hyundai and got in, and they sped off to the
apartment of Jabari Oliphant, a close friend who lived
in Waterbury. There, the defendant and Vance explained
to Bugg and Oliphant what had just transpired at Dia-
mond Court, namely, that they had intended to rob the
man in the SUV but decided not to when they saw his
young children; instead, they tried to rob the victim and
shot him when he resisted. They then asked Oliphant
if he had something to clean their guns.
‘‘Police arrived at Diamond Court within minutes of
the shooting and found the fatally wounded victim in
front of his family’s apartment. An autopsy revealed
that a single .38 class bullet through the victim’s heart
had killed him.2 The defendant was arrested and tried.
‘‘At trial, the state’s case included more than thirty
witnesses, who testified over the course of fifteen days.
A jury found the defendant guilty, and the court imposed
a sentence of eighty-three years in prison.’’ (Footnote
in original.) Id. The defendant appealed to the Appellate
Court, claiming, in relevant part, that the trial court had
violated his constitutional rights to due process and
compulsory process by failing to compel Bugg, Vance,
and Oliphant to testify during the defense case-in-chief
when they invoked their fifth amendment right against
self-incrimination after the state improperly revoked
the immunity that it had granted these witnesses during
the state’s case-in-chief. Id., 852.
The Appellate Court rejected the defendant’s consti-
tutional claim and affirmed the judgment of conviction,
reasoning that, although the state could not revoke
immunity it already had granted, his constitutional
rights were not violated because the state did not revoke
the existing immunity of these witnesses but, rather,
refused to grant additional immunity for any transac-
tion, matter, or thing not testified to and immunized
during the state’s case-in-chief. Id., 865, 867. The defen-
dant, according to the Appellate Court, was not consti-
tutionally entitled to have the three witnesses granted
additional immunity because he had failed to establish
that the additional testimony would have been essential
to his defense or would not have been cumulative. Id.,
870–71. Moreover, the Appellate Court determined that
the trial court properly allowed the witnesses to invoke
their fifth amendment privilege regarding questions not
covered by the existing immunity because responsive
answers had a tendency to incriminate the witnesses
and, thus, their invocation of their fifth amendment
right prevailed over the defendant’s right to compulsory
process. Id., 873–74, 874 n.14. The Appellate Court, how-
ever, also determined that the trial court abused its
discretion by allowing the witnesses to invoke their
fifth amendment privilege regarding questions covered
by the existing immunity because their answers would
not have incriminated them but that this error was
harmless because the witnesses already had testified
at length and been subject to cross-examination on
those subject matters. Id., 874–75.
Subsequently, the defendant filed a timely motion for
reconsideration and reargument en banc, in light of this
court’s holding in State v. Dickson, supra, 322 Conn.
410. The Appellate Court summarily denied the defen-
dant’s motion.
The defendant petitioned for certification to appeal,
which we granted, limited to the following issues: (1)
‘‘[Did] the Appellate Court properly [hold] that a prose-
cutor’s grant of immunity to a witness for his testimony
during the state’s case-in-chief does not extend to the
same witness’ testimony when later called by the defen-
dant as a witness?’’ (2) ‘‘If the answer to the first ques-
tion is no, was the error nonetheless harmless?’’ And
(3) ‘‘[Did] in-court identification testimony made by the
victim’s mother and brother, contrary to their pretrial
statements, [violate] the defendant’s due process rights
pursuant to State v. Dickson, [supra, 322 Conn. 410]?’’
State v. Collymore, 324 Conn. 913, 153 A.3d 1288 (2017).
Additional facts will be set forth as required.
I
The defendant first claims that his rights to present
a defense and to due process were violated as a result
of the state’s revocation of the immunity it previously
had granted to former prosecution witnesses under
§ 54-47a when they later were called as defense wit-
nesses. Specifically, the defendant argues that the
Appellate Court improperly characterized the prosecu-
tor’s actions as declining to grant additional immunity
rather than as revoking existing immunity, which
should have extended to his case-in-chief. This mischar-
acterization, the defendant contends, led the Appellate
Court to improperly address his arguments in support
of his constitutional claim, namely, that the state acted
improperly by intentionally revoking immunity to
deprive him of exculpatory testimony from those wit-
nesses and that the state’s actions, coupled with the trial
court’s warnings to the witnesses, improperly drove the
witnesses from the witness stand.
Moreover, the defendant argues that he was harmed
by the improper revocation of immunity, which caused
the witnesses’ subsequent, invalid invocations of their
fifth amendment rights, because (1) the witnesses’ testi-
mony would have addressed exculpatory, material, and
noncollateral subject matter, (2) the witnesses’ testi-
mony would have rehabilitated their credibility, and (3)
the state’s actions interfered with his right to control
his defense strategy by forcing him to elicit testimony
during the state’s case-in-chief rather than during the
defense case-in-chief.
The state responds that the Appellate Court properly
characterized the prosecutor’s actions as a refusal to
grant additional immunity, not as a revocation of
existing immunity. The state argues that the defendant
was not constitutionally entitled to have Vance, Bugg,
and Oliphant granted additional immunity because he
failed to establish either prosecutorial misconduct or
that the additional testimony was material, exculpatory,
or essential to his defense. Further, the state contends
that, to the extent that the trial court improperly
allowed the witnesses to invoke their fifth amendment
right against self-incrimination, this error was harmless
because their testimony would have been cumulative.
Even if we assume, without deciding, that the state
violated § 54-47a when it revoked the immunity it pre-
viously granted to Vance, Bugg, and Oliphant, we agree
with the state that this action did not violate the defen-
dant’s constitutional rights.
A
The following additional facts and procedural history
are relevant to this claim. Prior to trial, Bugg, Vance,
and Oliphant each had given statements to the police
that incriminated the defendant. Bugg had inculpated
the defendant twice—in his statement to the police
and during his testimony at the defendant’s hearing in
probable cause. Vance also inculpated the defendant
twice—in his statement to the police and when he
pleaded guilty to charges related to the incident at issue.
Oliphant likewise incriminated the defendant in the
statement he gave to the police.
When these witnesses were called as prosecution
witnesses at trial, all three invoked their fifth amend-
ment right against self-incrimination and refused to tes-
tify. The state granted immunity to these witnesses pur-
suant to § 54-47a in exchange for their testimony.
Specifically, the state granted Bugg ‘‘use immunity for
any drug activity he was engaged in on January 18,
2010.’’3 The state did not specifically grant Bugg immu-
nity from prosecution for any false statement made at
the defendant’s hearing in probable cause, which Bugg
was concerned about, but it did concede that it would
not prosecute him for any perjury that he may have
committed at the hearing in probable cause.4 The state
granted Vance immunity from prosecution for making
a false statement in his prior statements.5 The state
granted Oliphant immunity from prosecution for both
filing a false statement and hindering prosecution on
the basis of his statement to the police.6
Despite the witnesses’ prior statements that incrimi-
nated the defendant, the witnesses repudiated those
statements on direct examination in the state’s case
and testified so as to exonerate him. All three witnesses
testified that they did not provide the police with the
information contained in the statements and had signed
the statements only because they had been coerced by
the police. In light of this testimony, the state inter-
rupted the testimony of each witness to call Lieutenant
Michael Slavin of the Waterbury Police Department,
who testified that he was present when the witnesses
made and signed their statements and that the witnesses
had not been coerced. Through Slavin, the state then
had the statements of Bugg, Vance, and Oliphant read
into the record and admitted into evidence for substan-
tive purposes pursuant to State v. Whelan, 200 Conn.
743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.
Ct. 597, 93 L. Ed. 2d 598 (1986).
After the statements were admitted under Whelan,
the state recalled the witnesses and continued with
direct examination.7 The state questioned the witnesses
in detail about their prior statements to the police, read-
ing the statements sentence by sentence and asking the
witnesses if the information contained in each sentence
was correct. Although the state had not yet offered
into evidence Bugg’s prior testimony from the probable
cause hearing or Vance’s prior testimony from his plea
proceedings for substantive purposes under Whelan, it
questioned Bugg and Vance about these other prior
statements in a fashion similar to its questioning about
their prior statements to the police. The witnesses each
testified that, to the extent their prior statements and
testimony were inconsistent with their trial testimony,
the information contained in the prior statements and
testimony was incorrect.
Subsequently, on cross-examination, defense counsel
questioned the witnesses extensively about all of their
prior statements that incriminated the defendant and,
especially, about their reasons for making these prior
statements.8 Although at this point in the trial, Bugg’s
prior testimony from the hearing in probable cause and
Vance’s prior testimony from his plea proceedings had
not been admitted into evidence for substantive pur-
poses under Whelan, because the state had questioned
Bugg and Vance extensively about their prior testimony
and gone through it with them line by line, defense
counsel was able to extensively cross-examine them
about their prior testimony. Defense counsel also ques-
tioned the witnesses about their new exculpatory testi-
mony and the events that occurred on the night of the
incident at issue.
At the end of the state’s case, after the testimony of
these witnesses concluded, the court permitted the
state to read into the record Bugg’s prior testimony at
the hearing in probable cause and Vance’s prior testi-
mony at his plea proceedings for substantive purposes
pursuant to Whelan.
The defense subsequently called these witnesses as
defense witnesses in its case-in-chief. Prior to taking
the witness stand, the witnesses were informed that
the state was not extending its prior grant of immunity
to their testimony in the defense case-in-chief and was
not willing to grant any additional immunity for matters
not covered by the prior grant of immunity. Specifically,
the state clarified that it was ‘‘not giving [the witnesses]
immunity for any testimony as a witness in the defense
case.’’ The state argued that the witnesses’ testimony
had concluded after the state’s case ended and that,
because they no longer were being called as prosecution
witnesses, they did not ‘‘have immunity from the state
for anything that [they]—that [they testify] to at this
point on.’’ The court, however, noted that it was unclear
as to whether the immunity that the witnesses already
had been granted by the state extended to their testi-
mony as defense witnesses and that this was an issue
the Appellate Court would have to decide.9 The court
then cautioned the witnesses that this was an unre-
solved issue, that they may or may not have immunity,
and that they should be guided by the advice of their
counsel. Subsequently, while testifying during the
defense case-in-chief, the witnesses each invoked their
fifth amendment rights and refused to answer some or
all of the questions asked. We discuss each witness’
prior statements and trial testimony in turn.
1
As explained, prior to trial, Bugg had inculpated the
defendant twice—in a statement to the police and dur-
ing his testimony at the defendant’s probable cause
hearing. In his statement to the police, Bugg informed
the police that, on the date of the murder, he, the defen-
dant, and Vance had been driving around looking for
women and ended up at Diamond Court. While in the
parking lot area, the defendant saw an SUV driving
toward them. The defendant and Vance discussed how
the man in the SUV probably had money, pulled out
their guns, and said they were going to rob him. Bugg
saw Vance with a .357 and the defendant with a .38
revolver. The defendant then drove past the SUV and
parked in a driveway. The defendant and Vance exited
the vehicle and told Bugg to drive. Bugg remained in
the vehicle for approximately five minutes and then
heard five or six gunshots. He then drove the vehicle
toward the SUV. The defendant ran to the vehicle, got
into the backseat and said, ‘‘this nigga’s hot.’’ Vance
then ran to the vehicle and also got into the backseat.
Bugg drove away and asked if they ‘‘got’’ anything, to
which Vance said no and that the boy they tried to rob
‘‘tried some wild shit.’’ Bugg asked the defendant if
he shot the boy. The defendant did not respond but
appeared to be mad at Vance. Bugg drove them to Oli-
phant’s house, where the defendant told Bugg that they
did not rob the guy in the SUV but that ‘‘we got some
young nigga walk[ing] by, holding his pockets, and he
wouldn’t give it up. [The defendant] said that, because
the young nigga wouldn’t give it up, [Vance] yapped
that nigga. I know that yap means to shoot somebody.
They said the guy in the [SUV] had a baby in it, so
they felt bad [and] instead took the young nigga. [The
defendant] said [Vance] ha[d] his gun to the boy’s chest,
and the boy tried to grab it and they started to tussle
over the gun [and] that is why he shot him.’’ Vance then
asked for some ammonia to clean his gun. Vance kept
telling everyone to keep their mouths shut. Bugg then
left Oliphant’s house and went to a strip club with his
brother. He later told his cousin, Marquise Foote, about
the incident.
After he gave his statement to the police, Bugg testi-
fied at the defendant’s probable cause hearing. His testi-
mony was similar to, but not entirely consistent with,
the content of his statement to the police. Specifically,
Bugg testified that, although he saw Vance with a .357
pistol, he only saw something in the defendant’s pocket
that he assumed to be a gun.
At trial, on direct examination in the state’s case-in-
chief, Bugg’s testimony differed significantly from his
prior statements. He testified that, on the date of the
incident, he, the defendant and Vance had been driving
around, looking to purchase marijuana. They drove to
the area near Diamond Square because Bugg knew of
a narcotics dealer there. In the past, when Bugg wanted
to purchase marijuana, he would call the dealer, and
they would meet at Diamond Court. Although Bugg had
not called the dealer prior to the current excursion, he
saw the dealer’s truck, a dark colored SUV, parked in
the parking lot and informed the defendant and Vance
that the dealer was in the truck. The defendant then
parked down a side street. The defendant and Vance
exited the vehicle. Bugg testified that he did not see
either of them with a weapon. As Bugg was waiting in
the vehicle, he testified, he thought he heard gunshots
but was uncertain because music was playing in the
vehicle. Bugg then drove toward the SUV and saw the
defendant coming toward him, with Vance a couple of
feet behind the defendant. The defendant and Vance
got into the backseat of the vehicle, and Bugg drove to
the defendant’s house, where the three men smoked
marijuana.10
On direct examination during the defense case-in-
chief, after the state informed Bugg that the prior grant
of immunity did not extend to his testimony during
the defense case, defense counsel questioned Bugg at
length about recorded phone conversations he had had
with his sister and mother while he was incarcerated.
See footnote 10 of this opinion. Defense counsel asked
Bugg to clarify what his statement to his sister about
‘‘kitty’’ meant. He explained that ‘‘kitty’’ meant money
but that he had lied to his sister and only said that to
calm her down. He testified that the conversation was
about Vance’s needing to tell the truth because Vance
had lied in his statement. Defense counsel then asked
Bugg about the nature of his relationship with Foote
in January, 2010, to which Bugg responded that ‘‘[w]e
wasn’t cool’’ because ‘‘he stole from me.’’ Defense coun-
sel then inquired about what Foote had stolen from
Bugg, in response to which Bugg invoked his fifth
amendment right against self-incrimination. Bugg also
invoked his fifth amendment right in response to the
following questions by defense counsel: (1) where he
had driven the vehicle after the defendant and Vance
exited to purchase marijuana, (2) where precisely the
vehicle he was driving was located at the time the shoot-
ing occurred, and (3) if he had told the truth about the
vehicle’s location during the probable cause hearing.11
2
Vance also inculpated the defendant twice prior to
the defendant’s trial—in the statement Vance gave to
the police and when Vance pleaded guilty to charges
related to the incident at issue. In his statement to the
police, Vance stated that, on the day of the incident,
he was with the defendant and Bugg when the defendant
stated that he wanted to commit a robbery to get money
to buy his son a birthday present. Vance agreed to help
the defendant commit the robbery. He testified that the
defendant drove them to an apartment complex where
they saw a black SUV. The defendant parked behind
one of the apartment buildings. Then, the defendant
and Vance took out their guns and got ready to rob the
driver of the SUV. Vance stated that he had a .357
revolver and that the defendant had a .38 revolver. The
defendant and Vance exited the vehicle while Bugg
remained in the vehicle. According to Vance, he and
the defendant decided not to commit the robbery when
they saw two children run toward the SUV. Vance and
the defendant then saw the victim walking in the street
and decided to rob him instead. Vance stated that he
ran up behind the victim as the defendant put a gun to
the victim’s chest. The victim, however, slapped the
gun away and ran toward the entrance of the apartment
building. The defendant and Vance chased after him,
and the defendant started shooting at the victim, firing
two or three gunshots. Vance testified that, when he
saw a woman and a man open the front door of the
apartment the victim was running toward, he fired two
or three gunshots at the door to scare them. Bugg then
drove toward the defendant and Vance, who got into
the backseat, and Bugg drove to Oliphant’s house. The
defendant commanded Vance to give him his gun so
that the defendant could get rid of the guns, and Vance
complied. Vance stated that he was not certain whether
he or the defendant had shot the victim.
Subsequently, Vance again inculpated the defendant
during his testimony in the proceedings in which Vance
pleaded guilty to charges stemming from his participa-
tion in the incident at issue.12 During the plea proceed-
ings, Vance’s prior statement to the police was read
into the record, and Vance swore to its veracity. Addi-
tionally, in response to questions by the prosecutor,
Vance’s reiteration of the events of the incident at issue
was mostly consistent with his statement to the police,
with a few minor deviations.
Then, at the defendant’s trial, on direct examination
during the state’s case, Vance testified that, approxi-
mately one month prior to the incident at issue, he
had given the defendant ten blocks of heroin that the
defendant was supposed to, but never did, pay for. On
the day of the incident, the defendant called Vance,
stating that, if Vance went with him to collect money
from a man, he would give Vance the money. Vance
agreed. Subsequently, the defendant, Vance, and Bugg
drove to Diamond Court. Once at Diamond Court, the
defendant saw the man who owed him money coming
out of one of the apartment buildings with two children.
Vance and the defendant exited the vehicle, and Bugg
drove away. The man and the children quickly got into
a vehicle and drove away. Vance argued with the defen-
dant over the defendant’s failure to ask the man for the
money. Vance then punched the defendant, in response
to which the defendant appeared to reach inside his
clothing for a gun. Believing that the defendant had a
gun, Vance grabbed the Taurus Magnum .357 gun at
his hip and fired seven gunshots in the defendant’s
direction. The defendant ran toward where Bugg had
parked their vehicle and was not struck by any of the
bullets. Vance did not think he shot anyone. The defen-
dant and Vance got into the backseat of the vehicle,
and Bugg drove to the defendant’s house. Vance testi-
fied that he expected his statement to the police to
contain a recitation of these facts, including an admis-
sion that he might have killed the victim accidentally
with a stray bullet when he shot at the defendant.
Defense counsel then extensively cross-examined
Vance about the events at issue and his prior statements.
During the defense case-in-chief, because Vance had
stated that he would not respond to any questions, the
trial court, outside the presence of the jury, ordered
defense counsel to make an offer of proof. Vance
refused to answer any questions. Specifically, he
invoked his fifth amendment privilege against self-
incrimination in response to the following questions:
(1) what promises did the police officers make to him
at the time he signed his statement to the police, (2)
did he shoot the victim, (3) what did the detectives tell
him about signing his statement, and (4) did he make
a telephone call to Karen Atkins in June, 2012. Defense
counsel did not ask Vance any further questions, despite
the trial court’s advising him to make a record of any
questions he wanted to ask. Because Vance invoked his
fifth amendment privilege in response to every question
asked, the trial court ruled that Vance could not be
called to testify merely to invoke his fifth amendment
privilege against self-incrimination.
3
In his prior statement to the police, Oliphant stated
that Vance and the defendant had come to his house
on the night of the murder. Vance informed Oliphant
that he had killed the victim and that the defendant had
been with him when the murder occurred. Vance and
the defendant told Oliphant that they had gone out
looking to rob someone but that, when they tried to
rob the victim, he fought back and ran away, after which
Vance chased him and shot him in the back. Oliphant
stated that he previously had seen Vance with a .357
gun and that Vance had told him he had used that gun
to shoot the victim. Oliphant also stated that he knew
that the defendant had a .38 revolver.
At the defendant’s trial, on direct examination in the
state’s case-in-chief, Oliphant testified that, on the night
of the murder, the defendant, Vance, and Bugg came
to his house. While Vance and Oliphant were alone in
the bathroom, Vance told Oliphant that he had killed
the victim and wanted to kill the defendant and Bugg
to eliminate all witnesses. Soon after the conversation
in the bathroom, Vance, Bugg, and the defendant left
the house together. At a later date, Vance told Oliphant
more details, including that he had shot at the victim
approximately five times. Oliphant testified that, a cou-
ple of days after the murder, he also questioned the
defendant about the murder but that the defendant did
not want to talk. Oliphant testified that, subsequently,
while he and Bugg were riding in a vehicle, Bugg told
him that, on the night of the murder, they had been
riding around, drinking and smoking marijuana when
Vance got out of the vehicle and tried to rob the victim.
The victim attempted to fight off Vance, who then shot
the victim and got back into the vehicle. Oliphant fur-
ther testified that he previously had seen Vance with a
.357 gun but never had seen the defendant with a gun.
After the state’s case-in-chief, Oliphant was called
as a defense witness. Prior to the start of Oliphant’s
testimony, his counsel informed the trial court that Oli-
phant would not testify, ‘‘[b]ased on the representation
that immunity will not be extended to [his] being called
as a defense witness.’’ The court then ordered that
defense counsel make an offer of proof outside the
presence of the jury.
On direct examination during the offer of proof, Oli-
phant answered two questions, stating (1) that he had
been arrested for drug possession in 2011, and (2) that
he did not know anyone named Jamel Waver but that
he previously had been arrested with a man named
Jamel, whose surname he did not know. Oliphant, how-
ever, invoked his fifth amendment privilege against self-
incrimination in response to two other questions: (1)
whether he was beaten while in police custody, and (2)
whether he previously testified during the state’s case-
in-chief that he felt guilty about Vance. Defense counsel
did not ask any other questions, despite the trial court’s
warning that there needed to be a complete record.
On cross-examination, the state asked three questions
regarding Oliphant’s relationship with Jamel, including
whether Oliphant possessed narcotics when they were
arrested together in 2011, but Oliphant invoked his fifth
amendment right in response to all three questions.13
The state argued that, because Oliphant had invoked
his fifth amendment right in response to all questions
posed by the state on cross-examination, his testimony
on direct examination would have to be stricken, and,
thus, he could not be called to testify before the jury.
The court agreed, citing State v. Person, 215 Conn. 653,
577 A.2d 1036 (1990).
B
We now turn to the defendant’s claim. He contends
that his rights to due process and compulsory process
were violated when the state improperly revoked the
immunity it had granted to Bugg, Vance, and Oliphant
under § 54-47a. ‘‘[A] defendant has a right under the
compulsory process and due process clauses to present
[his] version of the facts as well as the prosecution’s
to the jury so [that] it may decide where the truth lies.
. . . The compulsory process clause of the sixth
amendment generally affords an accused the right to
call witnesses whose testimony is material and favor-
able to his defense . . . .’’ (Citations omitted; internal
quotation marks omitted.) State v. Holmes, 257 Conn.
248, 253, 777 A.2d 627 (2001), cert. denied, 535 U.S. 939,
122 S. Ct. 1321, 152 L. Ed. 2d 229 (2002). ‘‘The issue
of whether a defendant’s rights to due process and
compulsory process require that a defense witness be
granted immunity is a question of law and, thus, is
subject to de novo review.’’ Id., 252; see also State v.
Kirby, 280 Conn. 361, 403, 908 A.2d 506 (2006) (same).
The defendant’s claim is premised on an alleged viola-
tion of § 54-47a.14 He argues that, once the state granted
the three witnesses immunity under § 54-47a, the statute
provided them with immunity during both the state’s
case-in-chief and the defense case-in-chief.15 Even if we
assume, without deciding, that, once the state granted
these witnesses immunity under § 54-47a,16 this immu-
nity extended throughout the entire trial and could not
be revoked during the defense case-in-chief, and that
the state’s failure to extend the immunity violated § 54-
47a,17 we determine that this violation was not constitu-
tional in nature.
The defendant argues that this alleged error is of
constitutional magnitude and that, by mischaracterizing
the state’s actions as declining to grant additional immu-
nity rather than as revoking or failing to extend immu-
nity, the Appellate Court did not properly address his
constitutional claim. Specifically, the defendant argues
that, by mischaracterizing the actions of the state, the
Appellate Court never addressed (1) his allegation that
the state acted with the intent to deprive him of the
witnesses’ testimony by revoking immunity in violation
of § 54-47a, and (2) the impact that the revocation, cou-
pled with the trial court’s warnings, had on the wit-
nesses and their decisions to invoke their fifth amend-
ment rights against self-incrimination.
1
First, the defendant contends that the Appellate
Court did not address his argument that due process
and compulsory process under the federal constitution
required that immunity be extended to the defense case-
in-chief because the state intentionally prevented the
witnesses from testifying in the defense case-in-chief.
Even if we assume that the state’s actions violated § 54-
47a, this court has explained that only under ‘‘certain
compelling circumstances’’ have some federal courts
determined that ‘‘the rights to due process and compul-
sory process under the federal constitution require the
granting of immunity to a defense witness.’’ State v.
Holmes, supra, 257 Conn. 254; accord State v. Kirby,
supra, 280 Conn. 403–404. Specifically, ‘‘[t]he federal
[c]ircuit [c]ourts . . . have developed two theories
pursuant to which the due process and compulsory
process clauses entitle defense witnesses to a grant of
immunity. They are the effective defense theory, and
the prosecutorial misconduct theory. . . . Because
such circumstances [have not been present in prior
cases before this court], however, we [have not had to]
decide whether either theory is a correct application
of the due process or compulsory process clause.’’
(Internal quotation marks omitted.) State v. Kirby,
supra, 404; see State v. Giraud, 258 Conn. 631, 636–37,
783 A.2d 1019 (2001) (applying this framework when
state granted prosecution witness immunity during
hearing in probable cause but refused to extend immu-
nity to defendant’s case-in-chief when same witness
was called as defense witness during trial).
The defendant in this case argues that only the prose-
cutorial misconduct theory applies.18 ‘‘The prosecu-
torial misconduct theory of immunity is based on the
notion that the due process clause [constrains] the pros-
ecutor to a certain extent in [the] decision to grant or
not to grant immunity. . . . Under this theory, how-
ever, the constraint imposed by the due process clause
is operative only when the prosecution engages in cer-
tain types of misconduct, which include forcing the
witness to invoke the fifth amendment or engaging in
discriminatory grants of immunity to gain a tactical
advantage, and the testimony must be material, exculpa-
tory and not cumulative, and the defendant must have
no other source to get the evidence.’’ (Internal quotation
marks omitted.) State v. Kirby, supra, 280 Conn. 404. As
in Kirby, we need not decide whether the prosecutorial
misconduct theory is valid, because, even if we did, the
defendant has failed to establish that he has satisfied
the requirements of this theory in this case.
We have described the requirements of this theory
as ‘‘a very difficult burden for a defendant to meet.’’
State v. Giraud, supra, 258 Conn. 637. Specifically, the
defendant has the burden of establishing that (1) the
prosecution engaged in misconduct, (2) the testimony
was material, exculpatory, and not cumulative, and (3)
there was no other source for securing the evidence.
In the present case, the defendant did not request that
the trial court make a finding regarding (a) whether the
state engaged in misconduct, or (b) the state’s intent
in revoking immunity. From the record, it appears that
the state’s actions were based on its interpretation of
the statute, not an intent to deprive the defendant of
witness testimony. Nevertheless, there is at least the
appearance of unfairness in the state’s actions, espe-
cially in light of the fact that a defendant has the right
to recall prosecution witnesses in his or her own case-
in-chief to inquire into matters beyond the scope of the
state’s direct examination. See State v. Caracoglia, 134
Conn. App. 175, 192, 38 A.3d 226 (2012) (‘‘[T]he scope
of the state’s direct examination inherently limits the
scope of the defendant’s cross-examination. It occa-
sionally may be necessary for the defendant to go
beyond the scope of direct examination to present infor-
mation material to his defense. To do so he may need
to recall a witness.’’). Specifically, to the extent that
the defendant intended to ask these witnesses questions
that involved subjects covered by the existing immunity
but that went beyond the scope of the state’s direct
examination, it would appear unfair for the defendant
to be denied the opportunity to ask these questions
because the state revoked immunity. We caution the
state against engaging in what would appear to be an
unfair and discriminatory grant of immunity. Even if
we assume, however, that the state’s actions were unfair
and constituted misconduct by engaging in a discrimi-
natory grant of immunity to gain a tactical advantage,
the defendant has failed to establish that the testimony
he was prevented from offering was not cumulative.
The defendant argues that the state’s improper revo-
cation of immunity, which caused the witnesses to
improperly invoke their fifth amendment right against
self-incrimination, deprived him of exculpatory, mate-
rial, and noncumulative testimony. Specifically, he
argues that the testimony of Bugg, Vance, and Oliphant
during the defense case would have provided additional
details about the defendant’s and the witnesses’ roles
in the attempted robbery and murder, and would have
rehabilitated the witnesses’ and the defendant’s credi-
bility. We disagree.
a
The defendant’s argument is premised on his subsid-
iary argument that, if immunity had not been revoked,
the witnesses would not have been able to validly
invoke their fifth amendment rights against self-incrimi-
nation. Thus, to determine whether the testimony at
issue was exculpatory, material, and noncumulative,
we first must determine whether the witnesses could
have validly invoked their fifth amendment rights, even
if immunity had not been revoked. We are guided by
the following legal principles: ‘‘To sustain the privilege,
it need only be evident from the implications of the
question, in the setting in which it is asked, that a
responsive answer to the question or an explanation of
why it cannot be answered might be dangerous because
injurious disclosure could result. . . . In appraising a
fifth amendment claim by a witness, a judge must be
governed as much by his personal perception of the
peculiarities of the case as by the facts actually in evi-
dence.’’ (Citations omitted; internal quotation marks
omitted.) Martin v. Flanagan, 259 Conn. 487, 495–96,
789 A.2d 979 (2002).
When a witness’ invocation of the fifth amendment
privilege against self-incrimination conflicts with a
defendant’s right to present a defense, the defendant’s
right must ‘‘bow to accommodate other legitimate inter-
ests in the criminal trial process.’’ (Internal quotation
marks omitted.) Rock v. Arkansas, 483 U.S. 44, 55, 107
S. Ct. 2704, 97 L. Ed. 2d 37 (1987). ‘‘The accused does
not have an unfettered right to offer testimony that
is incompetent, privileged, or otherwise inadmissible
under standard rules of evidence.’’ Taylor v. Illinois,
484 U.S. 400, 410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988).
However, a witness’ testimony is not privileged under
the fifth amendment right against self-incrimination if
the testimony is protected by a grant of immunity. See
State v. Roma, 199 Conn. 110, 115, 505 A.2d 717 (1986);
id., 115–16 (holding that witness validly invoked fifth
amendment right when questioned about subject matter
that was outside scope of immunity and outside scope
of prior testimony). Additionally, once a witness volun-
tarily has testified about a subject, he may not later
invoke the privilege against self-incrimination when
questioned about additional details involving that sub-
ject matter. See id., 115 (‘‘[w]here the witness . . . has
already testified, on direct examination, to the incrimi-
nating matters sought to be explored on cross, he may
be found to have waived his right not to disclose further
the relevant details necessary to test the truth or accu-
racy of what he has already revealed’’).
With regard to the testimony of Bugg, Vance, and
Oliphant, even if we assume that the state violated § 54-
47a by revoking immunity and that immunity should
have extended to the defense case-in-chief, the three
witnesses validly invoked their fifth amendment rights
in response to some, though not all, of the questions
posed on direct examination during the defendant’s
case. Bugg answered many of the questions asked by
defense counsel on direct examination during the
defense case-in-chief. After testifying that he did not
have a good relationship with Foote at the time of
the murder because Foote had stolen from him, Bugg
invoked his fifth amendment right in response to a
question about what Foote had stolen from him. Bugg
also invoked his fifth amendment right in response to
questions about precisely where the getaway vehicle
he was driving was located at the time the shooting
occurred.19
As to the question about what Foote stole from Bugg,
Bugg and his counsel believed that whatever Foote stole
could possibly subject Bugg to criminal charges. Even
if we assume that what was stolen involved some form
of contraband, Bugg’s preexisting immunity, which cov-
ered only drug activity on the day of the murder,20 would
not have extended to his response to this question,
even if the immunity had not been revoked. Thus, Bugg
validly invoked his fifth amendment privilege in
response to this question, regardless of the revocation
of immunity.
As to the questions regarding the location of the get-
away vehicle, to the extent that the location of the
vehicle might implicate Bugg in drug activity on the
day of the murder—as Bugg was the getaway driver in
what he claimed began as a narcotics deal—under the
broad standard that applies, the grant of immunity cov-
ered these questions. See Martin v. Flanagan, supra,
259 Conn. 495 (invocation of fifth amendment right is
valid if there might be danger of injurious disclosure).
Therefore, if immunity had not been revoked, Bugg’s
invocation of his fifth amendment privilege in response
to these questions would have been invalid.
Vance, who was granted immunity from prosecution
only for making a false statement to the police and
during his plea proceedings, invoked his fifth amend-
ment right against self-incrimination during the defense
case-in-chief as to the following questions: (1) did he
shoot the victim, (2) what promises did the police offi-
cers make to him at the time he signed his statement,
(3) what did the detectives tell him about signing the
statement, and (4) did he make a telephone call to
Atkins in June, 2012?
The grant of immunity would have covered Vance’s
response to the first question if his response established
that he lied in his statement to the police or during the
plea proceedings about shooting the victim. Thus, his
invocation of his fifth amendment privilege in response
to that question would have been invalid if immunity
had not been revoked.
Additionally, the grant of immunity would have cov-
ered Vance’s responses to the second and third ques-
tions if they had established that he was coerced into
signing his statement to the police and that the informa-
tion it contained was false, and, thus, that he had made
a false statement. Therefore, his invocation of his fifth
amendment privilege in response to those questions
would have been invalid if immunity had not been
revoked.
Vance’s response to the fourth question would have
been outside the scope of the immunity he was granted
because it did not involve his prior statements, which
did not mention Atkins, and, thus, the revocation of
immunity had no effect on his invocation of his fifth
amendment privilege as to this question. Additionally,
Vance never testified about a telephone call to Atkins
during the state’s case and, thus, did not waive his fifth
amendment right as to that question. Moreover, the
record is void of information regarding Atkins, for
example, who she is and the importance of this tele-
phone call, and, thus, it is unclear how Vance’s response
to this question would have tended to incriminate him.
Because it is the defendant’s burden to establish harm;
see, e.g., State v. Bouknight, 323 Conn. 620, 626–27, 149
A.3d 975 (2016); we cannot conclude that Vance would
have invalidly invoked his fifth amendment right if
immunity had not been revoked.
Oliphant, who was granted immunity from prosecu-
tion for filing a false statement and hindering prosecu-
tion on the basis of his statement to the police, invoked
his fifth amendment right when he was examined21 by
the defendant in his case-in-chief in response to ques-
tions about (1) whether he had been beaten while in
police custody and (2) whether he previously had testi-
fied in the state’s case that he felt guilty about Vance.22
The grant of immunity would have covered Oliphant’s
response to the first question if it established that he
was coerced into making and signing a false statement
to the police and, thus, had made a false statement.
Therefore, the invocation of his fifth amendment privi-
lege in response to that question would have been
invalid if immunity had not been revoked. Similarly,
the grant of immunity would have covered Oliphant’s
response to the second question if it established that
he felt guilty because he lied about what occurred on
the night of the murder and, thus, had made a false
statement in his statement to the police. Therefore, his
invocation of his fifth amendment privilege in response
to that question would have been invalid if immunity
had not been revoked.
b
To the extent that these witnesses validly invoked
their fifth amendment privilege, even if immunity had
not been revoked, the defendant has failed to establish
that the revocation of immunity violated his constitu-
tional rights under the prosecutorial misconduct theory
because the witnesses would not have answered these
questions anyway, and, thus, their testimony would
not have been exculpatory. To the extent the witnesses
could have invalidly invoked their fifth amendment
right if the immunity had not been revoked, however,
we must determine whether the invalid invocations
deprived the defendant of material, exculpatory, and
noncumulative testimony. We determine that they did
not because the defendant has failed to establish that
the testimony would not have been cumulative.
To summarize, Bugg invalidly invoked his fifth
amendment right in regard to questions about the loca-
tion of the getaway vehicle that he operated at the
time of the shooting. Vance invalidly invoked his fifth
amendment right in regard to questions about whether
he shot the victim, what promises the detectives made
to him when he signed his statement to the police, and
what the detectives told him about signing the state-
ment. Oliphant invalidly invoked his fifth amendment
right in regard to questions about whether he was
beaten while in police custody and whether he pre-
viously testified in the state’s case about feeling guilty
about Vance. The defendant argues that the proposed
inquiries addressed noncumulative, exculpatory, and
material information about the events at issue and
would have rehabilitated his credibility and that of the
witnesses.23 Specifically, he argues that where Bugg
moved and parked the getaway vehicle would have
helped establish both what Bugg witnessed and whether
any of the other witnesses, such as, for example, the
victim’s mother and brother,24 were able to see the get-
away vehicle. Additionally, the defendant argues that
the location of the getaway vehicle would cast doubt
on the credibility of Foote’s testimony that Bugg had
told him that he witnessed the shooting.25
Although we agree that this information would be
material, we disagree that the defendant has established
that it was not cumulative. During the state’s case, both
the defendant and the state questioned Bugg about the
location of the getaway vehicle before, during, and after
the shooting. Although Bugg’s prior testimony, which
mentioned the location and movements of the getaway
vehicle, was not read into the record for substantive
purposes until after Bugg testified in the state’s case,
the state questioned Bugg about his prior testimony,
going through it sentence by sentence. Then, on cross-
examination, defense counsel both had the opportunity
to, and did, in fact question Bugg about his prior testi-
mony, including the location of the getaway vehicle
and his motives for providing the prior testimony. The
defendant has failed to identify any testimony Bugg
would have provided on this subject that he did not
already provide in the state’s case26 and therefore has
provided us with no reason to believe that any further
testimony by Bugg on this subject would not have
been cumulative.
The defendant also argues that Vance would have
provided material testimony because identifying who
shot the victim and from where the gunshots originated
were central issues at trial. Additionally, he argues that
asking Vance about what the detectives said to him and
promised him in regard to his statement to the police
was crucial to rehabilitating his credibility by establish-
ing that he had been coerced into signing the statement.
Again, we agree that this information was material, but
we also determine that the defendant has failed to estab-
lish that it was not cumulative. During the state’s case,
both parties questioned Vance at length about his role
in the murder. In all of his different statements and
varying testimony, Vance admitted that he fired his
weapon on the night of the murder at the scene of the
crime and may have (accidentally or otherwise) shot
the victim. The defendant, who has the burden of estab-
lishing that he has satisfied all three prongs of the prose-
cutorial misconduct theory, has provided no record to
establish that, had Vance once again been questioned
about who shot the victim, his testimony would have
provided any new information.
Similarly, both parties questioned Vance at length
about his allegations of police coercion. Defense coun-
sel spent significant time on cross-examination in the
state’s case attempting to rehabilitate Vance’s credibil-
ity by establishing that the detectives coerced him into
signing the statement that he gave to them. Although
it is true that Vance’s prior testimony at his plea pro-
ceedings was not read into the record for substantive
purposes until after his testimony in the state’s case
concluded, Vance had been questioned by both parties
about his prior testimony during the state’s case, and,
thus, defense counsel already had attempted to rehabili-
tate Vance’s credibility in regard to his prior testimony.
Moreover, the defendant has failed to identify any new
and nonprivileged testimony that Vance would have
provided on these subjects that he had not already
provided in the state’s case. As a result, the defendant
has failed to establish that any further testimony by
Vance on these subject matters would not have been
cumulative.27
The defendant similarly argues that Oliphant’s testi-
mony would have been material and exculpatory
because whether Oliphant was beaten while in police
custody and whether he felt guilty about Vance were
matters that pertained to Oliphant’s credibility. The
record establishes, however, that Oliphant testified
about these subject matters in the state’s case. See foot-
notes 7 and 22 of this opinion. Defense counsel spent
considerable time on cross-examination attempting to
rehabilitate Oliphant’s credibility by establishing that
he had signed the statement he made to the police after
they had beaten and coerced him and that he felt guilty
for having lied about the defendant’s role in the mur-
der. The defendant has not identified any new testimony
that Oliphant would have provided on these subjects.
Thus, the defendant has failed to establish that Oli-
phant’s testimony would not have been cumulative.
The defendant further argues, generally, that,
because other witnesses testified on behalf of the state
after these witnesses and because Vance’s prior testi-
mony in his plea proceedings and Bugg’s prior testi-
mony at the hearing in probable cause were read into
the record after their testimony had concluded, he
should have had an opportunity to confront these wit-
nesses about these subsequent pieces of evidence,
which would not have been cumulative. The defendant
argues that by not having this opportunity, he was
restricted to remain within the parameters of the state’s
case and denied the right to compose his defense strat-
egy as he thought best. He argues that he had compelling
tactical reasons to wait to ask certain questions until
the defense case, after all of the state’s witnesses
had testified.
We agree that, in general, a defendant is not limited
to the scope of the state’s case and may recall a state’s
witness as a defense witness to inquire into areas not
previously discussed in the state’s case.28 See State v.
Caracoglia, supra, 134 Conn. App. 192–93. However,
with the exception of the question about what Foote
stole from Bugg, to which Bugg had a valid claim of
privilege, the defendant has failed to provide a record
of what other evidence he wanted to confront the wit-
nesses about that he did not already ask about in the
state’s case. Although Bugg’s prior testimony from the
hearing in probable cause and Vance’s prior testimony
from his plea proceedings were admitted for substan-
tive purposes after those witnesses testified in the
state’s case, both parties questioned Bugg and Vance
extensively during the state’s case about the substance
of that testimony and their motives for providing that
testimony. Despite inquiries by the trial court, the
Appellate Court, and this court, the defendant has been
unable to articulate either what questions he would
have asked that would have led to new and not privi-
leged information or a strategic reason for delaying
asking certain questions. Thus, the defendant has failed
to establish either that his defense strategy was improp-
erly curtailed or that he was prevented from inquiring
into subject areas outside the scope of the state’s case
that would have led to new and not cumulative tes-
timony.
Accordingly, because the defendant has failed to pro-
vide this court with a record establishing what new
information these witnesses would have provided if the
state had not revoked their immunity, he has failed to
establish that the state’s violation of § 54-47a, assuming
that a violation did occur, violated his constitutional
rights to due process and compulsory process under
the prosecutorial misconduct theory of immunity.
2
With regard to the defendant’s second argument in
support of his constitutional claim, the defendant con-
tends that, by failing to categorize the state’s actions
as revoking immunity, the Appellate Court improperly
failed to consider whether the revocation of immunity,
coupled with the trial court’s warnings to the witnesses,
substantially interfered with his right to present a
defense by intimidating the witnesses and driving them
from the witness stand. Although we agree with the
defendant that the Appellate Court did not address the
impact the revocation of immunity, coupled with the
trial court’s warnings,29 had on the witnesses and their
decisions to invoke their fifth amendment rights, we do
not agree that the impact was such that the defendant’s
rights to due process and to present a defense were
violated.
Neither the trial court nor the prosecutor may intimi-
date a witness and drive him from the witness stand.
See, e.g., Webb v. Texas, 409 U.S. 95, 98, 93 S. Ct. 351,
34 L. Ed. 2d 330 (1972) (‘‘judge’s threatening remarks
. . . effectively drove that witness off the stand, and
thus deprived the petitioner of due process’’); United
States v. Williams, 205 F.3d 23, 29 (2d Cir.) (‘‘judicial
or prosecutorial intimidation that dissuades a potential
defense witness from testifying for the defense can,
under certain circumstances, violate the defendant’s
right to present a defense’’), cert. denied, 531 U.S. 885,
121 S. Ct. 203, 148 L. Ed. 2d 142 (2000). Nevertheless,
‘‘[t]he function of the court in a criminal trial is to
conduct a fair and impartial proceeding. . . . When the
rights of those other than the parties are implicated,
[t]he trial judge has the responsibility for safeguarding
both the rights of the accused and the interests of the
public in the administration of criminal justice. . . .
Accordingly, it is within the court’s discretion to warn
a witness about the possibility of incriminating himself.
. . . The court, however, abuses its discretion if it
actively interferes in the defendant’s presentation of his
defense, and thereby pressures a witness into remaining
silent. . . . The dispositive question in each case is
whether the government actor’s interference with a
[witness’] decision to testify was substantial.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Tilus, 157 Conn. App. 453, 475–76, 117 A.3d 920
(2015), appeal dismissed, 323 Conn. 784, 151 A.3d
382 (2016).
The present case is distinguishable from the cases
cited by the defendant in which warnings issued by
courts or prosecutors have been held to be coercive.
In those cases, the government actor gratuitously and
threateningly warned the witness about committing per-
jury, threatened to revoke a plea agreement, or made
the witnesses physically unavailable. See, e.g., Webb v.
Texas, supra, 409 U.S. 97 (‘‘The trial judge gratuitously
singled out this one witness for a lengthy admonition
on the dangers of perjury. . . . [And] the judge implied
that he expected [the witness] to lie, and went on to
assure him that if he lied, he would be prosecuted and
probably convicted for perjury . . . .’’); United States
v. Vavages, 151 F.3d 1185, 1190–91 (9th Cir. 1998) (pros-
ecutor substantially interfered with witness’ decision
whether to testify when warnings about committing
perjury were intimidating and intended to stifle witness’
testimony where prosecutor made ‘‘an unambiguous
statement of his belief that [witness] would be lying
if she testified in support of [defendant’s] alibi’’ and
threatened to withdraw witness’ plea agreement in
unrelated case if she testified in support of defendant’s
alibi [emphasis omitted]); United States v. Morrison,
535 F.2d 223, 225–26, 227 (3d Cir. 1976) (during meeting
in his office on day before witness testified, prosecutor
repeatedly warned witness about committing perjury,
‘‘which culminated in a highly intimidating personal
interview’’); United States v. Bell, 506 F.2d 207, 222
(D.C. Cir. 1974) (‘‘[g]overnment conditioned its accep-
tance of [witnesses’ guilty] pleas upon their commit-
ment to refrain from testifying [in defendant’s] behalf’’);
United States v. Tsutagawa, 500 F.2d 420, 422, 423 (9th
Cir. 1974) (‘‘the government placed witnesses, who may
have been favorable to the appellees, outside the power
of our courts to require attendance’’ when it precluded
appellees from interviewing them by releasing them
and sending them back to Mexico because they were
illegal aliens who were not subjects of grand jury inves-
tigation); see also State v. Tilus, supra, 157 Conn. App.
476 (courts have found interference when government
actor either stepped into role of witness’ advocate or
specifically threatened witness).
In the present case, neither the trial court nor the
prosecutor threatened the witnesses. The witnesses
were not bombarded with multiple warnings, were not
warned that testifying in favor of the defendant would
lead to perjury charges, were not threatened with hav-
ing their plea deals revoked, and were not made physi-
cally unavailable. Although ‘‘the court may not threaten
a witness into remaining silent or effectively [drive]
that witness off the stand’’; (internal quotation marks
omitted) State v. Fred C., 167 Conn. App. 600, 613, 142
A.3d 1258, cert. denied, 323 Conn. 921, 150 A.3d 1150
(2016); a court may advise a witness who has testified
inconsistently of the consequences of committing per-
jury, as long as the court does not suggest which version
of the witness’ testimony is correct. Id., 613–14. Here,
the court cautioned the witnesses that the law was
unsettled as to whether they had immunity30 and that
they should follow the advice of counsel as to whether
they should testify. The court did not threaten the wit-
nesses in any way. Although the state did inform the
witnesses that it was revoking immunity and that none
of their testimony during the defense case would be
covered by any immunity, the record does not reflect
that it did so in a threatening manner. Rather, it
informed the court and witnesses of how it interpreted
the immunity statute. The state never threatened the
witnesses that, in light of this revocation of immunity,
it would prosecute the witnesses if they testified or if
they testified in a manner unfavorable to the state’s
case. The state’s actions might have been a factor in the
witnesses’ decisions to invoke their fifth amendment
rights, but ‘‘[a] defendant’s constitutional rights are
implicated only where the prosecutor or trial judge
employs coercive or intimidating language or tactics
that substantially interfere with a defense witness’
decision whether to testify.’’ (Emphasis added.) United
States v. Vavages, supra, 151 F.3d 1189. The state’s
informing the witnesses of what it believed to be the
scope of the immunity statute was not so coercive or
intimidating as to substantially interfere with the wit-
nesses’ decisions.
Moreover, Bugg, Vance, and Oliphant all were repre-
sented by counsel and had an opportunity to speak with
their counsel regarding their decisions to invoke their
fifth amendment rights. See United States v. Serrano,
406 F.3d 1208, 1216 (10th Cir.) (‘‘potential for unconsti-
tutional coercion by a government actor significantly
diminishes . . . if a defendant’s witness elects not to
testify after consulting an independent attorney’’
[emphasis omitted]), cert. denied, 546 U.S. 913, 126 S.
Ct. 277, 163 L. Ed. 2d 247 (2005); State v. Tilus, supra,
157 Conn. App. 477 (same).
Thus, the revocation of immunity, coupled with the
trial court’s warnings to the witnesses, did not drive
these witnesses from the witness stand and, thus, did
not violate the defendant’s rights to due process and
to present a defense. Accordingly, even if we assume
that the state violated § 54-47a by revoking the immu-
nity it previously granted to Bugg, Vance, and Oliphant,
this error was not constitutional in nature. Thus, the
defendant has failed to establish that, by revoking this
immunity, the state violated his constitutional rights.
II
The defendant next claims that, pursuant to this
court’s recent decision in State v. Dickson, supra, 322
Conn. 410, his right to due process was violated by
the first time in-court identification31 testimony of the
victim’s mother, Nelly Robinson, and brother, George
C. Frazier. As to Robinson, the defendant argues that,
because she did not previously inform anyone that she
had witnessed the shooting or that she could describe
the shooters, her description of the shooters constituted
a first time in-court identification subject to Dickson. As
to George Frazier, the defendant argues that, because
he did not previously identify the defendant in an out-
of-court, nonsuggestive identification procedure, his in-
court identification violated Dickson. The defendant
further argues that both identifications were not harm-
less beyond a reasonable doubt.
The state responds that Dickson does not apply
because identity was not at issue in the present case.
Additionally, the state contends that, as to Robinson,
Dickson does not apply because her description of the
shooters did not constitute an identification. As to
George Frazier, the state argues that Dickson does not
apply because his in-court identification of the defen-
dant was unsolicited and unanticipated, and Dickson
applies only in cases in which ‘‘the state intends to
present a first time in-court identification . . . .’’ Id.,
445. Finally, the state argues that, to the extent that
Dickson applies, the admission of the testimony was
harmless because of the state’s strong case, which the
defendant’s own testimony largely corroborated.
We agree with the state that, even if we assume that
Robinson and George Frazier made in-court identifica-
tions, identity was not at issue as to the charges of
attempted robbery, conspiracy to commit robbery, and
felony murder, and, thus, the admission of the first time
in-court identifications did not implicate the defen-
dant’s right to due process. However, we disagree that
identity was not at issue in relation to the charge of
criminal possession of a firearm. Nevertheless, we
determine that any error was harmless beyond a reason-
able doubt.
A
The following additional facts are necessary to our
review of this claim. At trial, Robinson, the victim’s
mother, testified that, at the time of the incident, she
was in her apartment on the second floor ironing cloth-
ing when she heard the victim yell and looked out the
window to see him running and ducking as two men
shot at him. She described the two shooters: ‘‘One was
taller than the other, and one was stockier and shorter
than the other one.’’ She testified that the ‘‘short, stocky
one’’ fired two gunshots at the victim and that ‘‘the
other one’’ then fired two gunshots.32 Robinson further
testified that she ran downstairs to the front door,
where her two other children were standing, with the
door open. The victim was outside the door reaching
toward her. She grabbed him and laid him on the
ground. She looked around and saw the two shooters
get into a white car that sped away. She testified that
she told all of this to the police at the scene of the
crime but admitted that, in her written statement to
them, there is no reference to her having witnessed the
shooting or having seen the shooters.33
Following Robinson’s testimony, George Frazier—
her son and the victim’s brother—testified that, at the
time of the incident, he was inside his family’s apart-
ment and heard yelling. He went to look out the down-
stairs window and saw the victim running and yelling
for their mother. George Frazier testified that he went
to open the front door and heard approximately five
gunshots. He testified that, when he opened the front
door, he saw the victim on the floor outside their apart-
ment. He further testified that he heard gunshots com-
ing from the direction of mailboxes on the premises
and saw two shooters and a white, four door vehicle
parked with three men inside. He testified that he did
not previously inform the police that he saw two shoot-
ers and never identified the defendant as one of the
shooters but recalled that the defendant was one of the
two shooters ‘‘[b]ecause the man that stands in front
of me, I recognize his face.’’ He specified that he ‘‘saw
[the defendant] with a gun’’ but ‘‘never told anybody
that until now.’’ He testified that the defendant was
with a ‘‘short, light-skinned’’ person.
George Frazier was subject to extensive cross-exami-
nation, during which he testified that he had suffered
from a brain tumor a few months after the victim’s
murder and had difficulty recalling information. On
cross-examination, he testified inconsistently about
what he recalled, when and where he heard the gun-
shots, and what he had told the prosecutor. After his
testimony concluded, the prosecutor went on the
record, outside the presence of the jury, to state that
George Frazier had testified falsely as to when he had
met with her and that his testimony was unanticipated,
specifically, his testimony about witnessing the shoot-
ing and his identification of the defendant as one of the
shooters. Defense counsel said nothing on the matter.
B
‘‘[W]hether [a party] was deprived of his due process
rights is a question of law, to which we grant plenary
review . . . .’’ (Internal quotation marks omitted.)
State v. Dickson, supra, 322 Conn. 423. Whether the
admission of eyewitness identification testimony vio-
lated due process is premised on whether the identifica-
tion procedure was unnecessarily suggestive: ‘‘In the
absence of unduly suggestive procedures conducted by
state actors, the potential unreliability of eyewitness
identification testimony ordinarily goes to the weight
of the evidence, not its admissibility, and is a question
for the jury. . . . Principles of due process require
exclusion of unreliable identification evidence that is
not the result of an unnecessarily suggestive procedure
[o]nly when [the] evidence is so extremely unfair that
its admission violates fundamental conceptions of jus-
tice . . . . A different standard applies when the defen-
dant contends that an in-court identification followed
an unduly suggestive pretrial identification procedure
that was conducted by a state actor. In such cases, both
the initial identification and the in-court identification
may be excluded if the improper procedure created a
substantial likelihood of misidentification.’’ (Citations
omitted; internal quotation marks omitted.) Id., 419–20.
‘‘In determining whether identification procedures
violate a defendant’s due process rights, the required
inquiry is made on an ad hoc basis and is two-pronged:
first, it must be determined whether the identification
procedure was unnecessarily suggestive; and second,
if it is found to have been so, it must be determined
whether the identification was nevertheless reliable
based on examination of the totality of the circum-
stances.’’ (Internal quotation marks omitted.) Id.,
420–21.
In Dickson, this court was faced with applying these
principles to a first time in-court identification. We rec-
ognized the suggestive nature of first time in-court iden-
tifications: ‘‘[W]e are hard-pressed to imagine how there
could be a more suggestive identification procedure
than placing a witness on the stand in open court, con-
fronting the witness with the person whom the state
has accused of committing [a] crime, and then asking
the witness if he can identify the person who committed
the crime. . . . If this procedure is not suggestive, then
no procedure is suggestive.’’ (Emphasis omitted; foot-
note omitted.) Id., 423–24.
To avoid this kind of suggestive procedure, we
announced the following procedural rule: ‘‘[I]n cases
in which identity is an issue, in-court identifications
that are not preceded by a successful identification in
a nonsuggestive identification procedure implicate due
process principles and, therefore, must be prescreened
by the trial court.’’ (Footnote omitted.) Id., 415. We then
established the following prescreening procedure: ‘‘In
cases in which there has been no pretrial identification
. . . and the state intends to present a first time in-court
identification, the state must first request permission
to do so from the trial court. . . . The trial court may
grant such permission only if it determines that there
is no factual dispute as to the identity of the perpetrator,
or the ability of the particular eyewitness to identify
the defendant is not at issue.’’ (Citation omitted.) Id.,
445–46. Permission is proper in these kinds of cases
because, ‘‘when identity is not an issue,’’ a defendant’s
due process rights are not implicated. Id., 433.
We held that this procedural rule applied retroac-
tively to all cases pending on review. Id., 450–51.
Because, however, it was too late to prescreen first
time in-court identifications that already had occurred
in pending cases, we provided a road map for how
pending appeals should be handled: ‘‘[I]n pending
appeals involving this issue, the suggestive in-court
identification has already occurred. Accordingly, if the
reviewing court concludes that the admission of the
identification was harmful, the only remedy that can
be provided is a remand to the trial court for the purpose
of evaluating the reliability and the admissibility of the
in-court identification under the totality of the circum-
stances. . . . If the trial court concludes that the identi-
fication was sufficiently reliable, the trial court may
reinstate the conviction, and no new trial would be
required.’’ (Citations omitted; emphasis omitted.) Id.,
452. ‘‘Of course, if the record is adequate for review of
the reliability and admissibility of the in-court identifica-
tion, the reviewing court may make this determination.’’
Id., 452 n.35.
Since Dickson, this court has not been faced with the
retroactive application of Dickson to a claim involving
a first time in-court identification that already has
occurred. The Appellate Court, however, has addressed
this issue. Specifically, in State v. Swilling, 180 Conn.
App. 624, 646, 184 A.3d 773, cert. denied, 328 Conn. 937,
184 A.3d 268 (2018), the defendant, who had a romantic
history with the victim, was convicted of kidnapping,
home invasion, and assault prior to this court’s decision
in Dickson. Id., 627–28, 648. The victim, who did not
make an out-of-court nonsuggestive identification, iden-
tified the defendant for the first time at trial as her
assailant. Id., 647–48. On appeal to the Appellate Court,
the defendant in Swilling claimed that, pursuant to
Dickson, the victim’s first time in-court identification
violated his right to due process because the victim did
not first make an out-of-court nonsuggestive identifica-
tion and because the trial court did not prescreen the
victim’s in-court identification. Id., 648–49. The Appel-
late Court disagreed. Following this court’s road map
in Dickson for addressing this issue in pending cases,
the Appellate Court determined that, because ‘‘there
was no factual dispute with respect to whether the
victim had the ability to identify the defendant’’; id.,
648; and, thus, identity was not at issue, there was no
constitutional violation, and, therefore, the trial court’s
failure to prescreen the first time in-court identification
was not harmful. Id., 649–50. Because the Appellate
Court found the lack of prescreening harmless, it prop-
erly did not go on to determine whether the identifica-
tion was reliable under the totality of the circumstances.
We agree with the Appellate Court’s application of
Dickson in Swilling. Because prescreening was not
required in pending cases in which the first time in-
court identification already occurred, a reviewing court
must determine whether the admission was harmful,
which necessarily includes determining whether iden-
tity was at issue. See State v. Dickson, supra, 322 Conn.
452. Thus, for cases pending at the time the decision
in Dickson was released, if identity was not at issue,
the admission of a first time in-court identification does
not implicate due process concerns and, thus, was
not harmful.34
In the present case, the state argues that, under Dick-
son, the admission of the first time in-court identifica-
tions did not violate the defendant’s rights to due pro-
cess for three reasons: (1) Robinson did not make a
first time in-court identification, (2) Dickson applies
only when ‘‘the state intends to present a first time in-
court identification,’’ and (3) identity was not at issue.
We address each in turn.
1
As an initial matter, we must determine whether Rob-
inson and George Frazier made first time in-court identi-
fications. It is clear that George Frazier identified the
defendant, for the first time at trial, as one of the shoot-
ers. He testified that he never previously informed any-
one that he witnessed the shooting or that the defendant
was one of the shooters. It is less clear whether Rob-
inson’s testimony constitutes a first time in-court identi-
fication.
Robinson never testified at trial that the defendant
was one of the two shooters. Nor did she testify that
one of the victim’s assailants looked like the defendant.
Robinson did not mention the defendant in any way.
She did, however, testify that she saw two shooters—
one was tall and thin, the other was short and stocky.
Although the defendant argues that this description
matches the physical characteristics of the defendant
and Vance, Robinson never testified to such a correla-
tion. As such, it is not clear from the record that Rob-
inson explicitly identified the defendant as one of the
shooters. Rather, she provided a description of the sus-
pects.
This court in Dickson emphasized that the new rule
we announced therein did not apply to observations of
the perpetrator, such as height, weight, sex, race, and
age, so long as the prosecutor does not question the
witness about whether the defendant resembles the
perpetrator. State v. Dickson, supra, 322 Conn. 436–37,
447; cf. State v. Bethea, 187 Conn. App. 263, 278, 202
A.3d 429, cert. denied, 332 Conn. 904, 208 A.3d 1239
(2019); State v. Torres, 175 Conn. App. 138, 150, 167 A.3d
365, cert. denied, 327 Conn. 958, 172 A.3d 204 (2017).
Nevertheless, we noted in Dickson that a defendant’s
due process rights may be implicated by the admission
of a witness’ testimony as to their observations about
a perpetrator if the witness ‘‘was unable to provide any
of these details before the court proceeding . . . .’’
State v. Dickson, supra, 322 Conn. 437 n.19. However,
because we were not presented with that problem in
that case, we did not address it. See id.
The description that Robinson gave of the perpetra-
tors was minimal and generic—a short, stocky man and
a tall, thin man. Robinson did not testify as to race,
age, clothing or facial descriptions. This court has not
previously addressed whether the level of detail in a
witness’ description of a perpetrator plays a factor in
whether the description constitutes an identification or
implicates a defendant’s due process rights. We, how-
ever, need not decide this issue because, even if we
assume that the rule in Dickson applies to Robinson’s
observations about the perpetrators, the defendant suf-
fered no harm. See part II C of this opinion.
2
Next we address the state’s argument that Dickson
does not apply in the present case because Dickson
applies only when ‘‘the state intends to present a first
time in-court identification . . . .’’ State v. Dickson,
supra, 322 Conn. 445. It is true that the procedure we
set forth in Dickson did not contemplate cases in which
the first time in-court identification was a surprise to
both the state and the defendant. Although we recognize
that the prosecutor in the present case committed no
misconduct because the identifications were unsolic-
ited and unanticipated and because this court had yet
to announce the new rule created in Dickson, the fact
that these identifications were unsolicited and unantici-
pated does not affect whether they violate the defen-
dant’s right to due process. All first time in-court identi-
fications are subject to the rule in Dickson; see footnote
34 of this opinion; regardless of the prosecutor’s intent.
3
Finally, the state argues that Dickson does not apply,
or that there was no due process violation; see id.;
because identity was not at issue. Specifically, the state
argues that, because the defendant testified that he was
present at the scene of the crime and because he did
not have to be the shooter to be convicted of felony
murder, the shooter’s identity was not at issue. The
defendant responds that identity was at issue because
the identity of the shooter and whether there was more
than one shooter were actively disputed at trial. In light
of the defendant’s testimony that he was present at the
scene of the crime, we agree with the state that identity
was not at issue as to most of the charges, which did
not require the defendant to be the shooter in order to
be found guilty but disagree that identity was not at
issue with regard to the charge of criminal possession
of a firearm.
The defendant was charged with and found guilty of
felony murder, two counts of attempt to commit rob-
bery in the first degree, conspiracy to commit robbery
in the first degree, and criminal possession of a firearm.
See footnote 1 of this opinion. Although the state’s
general theory of the case was that the defendant and
Vance attempted to rob the victim and then fired their
guns at the victim, the state argued in summation to
the jury that the defendant could be found guilty of
attempted robbery even if he did not have or use a gun.
The prosecutor stated that ‘‘it doesn’t have to be that
they both had guns; it has to be that either [the defen-
dant] or [Vance] must have been armed.’’ Similarly, in
regard to the charge of felony murder, the prosecutor
argued that the state ‘‘does not have to prove who shot
and killed [the victim], just that either [Vance’s or the
defendant’s] actions caused [the victim’s] death.’’
Likewise, when instructing the jury as to the charge
of felony murder, the trial court explained that, to find
the defendant guilty, it had to find that ‘‘the defendant,
acting alone or with one or more persons . . . commit-
ted or attempted to commit a robbery’’ and that ‘‘the
defendant or another participant in the attempted rob-
bery caused the death of [the victim] . . . .’’ As to the
charge of attempted robbery under §§ 53a-49 (a) (2)
and 53a-134 (a) (2), the trial court instructed the jury
that, to find the defendant guilty, it had to find that ‘‘the
defendant or another participant in the crime [was]
armed with a deadly weapon.’’ As to the charge of
attempted robbery under §§ 53a-49 (a) (2) and 53a-134
(a) (4), the trial court instructed the jury that, to find
the defendant guilty, it had to find that ‘‘the defendant
or another participant in the crime [displayed] or
[threatened] the use of what he [represented] by word
or conduct to be a pistol, revolver, rifle, shotgun,
machine gun, or other firearm.’’ As to the charge of
conspiracy to commit robbery, the trial court did not
mention possession of a firearm in its instruction. The
only charge on which the court instructed the jury that
it had to find that the defendant possessed a firearm
before it could find him guilty was the charge of criminal
possession of a firearm in violation of § 53a-217 (a) (1).
The trial court’s instructions were consistent with the
law of this state. See State v. Davis, 255 Conn. 782, 791,
772 A.2d 559 (2001) (‘‘treating accessories and princi-
pals alike’’ for purposes of § 53a-134 so that defendant
does not have to possess, use, or threaten use of deadly
weapon to be found guilty of robbery, as long as another
participant in robbery possessed, used, or threatened
use of deadly weapon).
As the state’s argument and jury instructions make
clear, identity was not at issue as to the charges of
felony murder, both counts of attempted robbery, and
conspiracy to commit robbery. As to those charges,
although the identity of the shooter was disputed, the
defendant did not need to possess or use a firearm to
be found guilty. It was sufficient for the state to establish
that the defendant participated in the attempted rob-
bery and the conspiracy to commit robbery while
another participant—Vance—possessed, used, or
threatened the use of a firearm. The defendant placed
himself at the crime scene at the time the crime
occurred. He admitted at trial that he was standing near
Vance when Vance fired his gun at the victim. In light
of the defendant’s testimony, the issues that remained
as to these four charges concerned whether the defen-
dant participated in the attempted robbery and the con-
spiracy to commit robbery. The identity of the shooter
was not at issue. Thus, as to these four charges, because
identity was not at issue, the admission of the identifica-
tion testimony of Robinson and George Frazier did not
implicate the defendant’s due process rights and, there-
fore, was not harmful.
Identity was at issue, however, in relation to the
charge of criminal possession of a firearm. For the jury
to find the defendant guilty of this charge, the state
was required to prove that he possessed a firearm. See
General Statutes § 53a-217 (a) (1). Although the trial
court noted in its jury instructions that possession could
be actual or constructive, the state in closing argument
argued to the jury only that the defendant actually pos-
sessed a firearm. Cf. State v. King, 321 Conn. 135, 149,
136 A.3d 1210 (2016) (‘‘[p]rinciples of due process do
not allow the state, on appeal, to rely on a theory of
the case that was never presented at trial’’). Although
the state was not required to establish that the defen-
dant either was the shooter or possessed a firearm in
order for the jury to find him guilty of felony murder,
attempted robbery, and conspiracy to commit robbery,
the state was required to establish that he actually pos-
sessed a firearm in order for the jury to find him guilty
of criminal possession of a firearm. Thus, the identity
of the shooter was at issue for purposes of that charge—
if the state established that the defendant was the
shooter, then it likewise established that he possessed
a firearm. Accordingly, the identification testimony of
Robinson and George Frazier did implicate the defen-
dant’s due process rights in relation to the charge of
criminal possession of a firearm.
C
Because we have determined that the admission of
the identification testimony of Robinson and George
Frazier implicated the defendant’s due process rights
in relation to the charge of criminal possession of a
firearm, we must determine whether the testimony was
harmless beyond a reasonable doubt. See State v. Dick-
son, supra, 322 Conn. 453. ‘‘A constitutional error is
harmless when it is clear beyond a reasonable doubt
that the jury would have returned a guilty verdict with-
out the impermissible [evidence] . . . . That determi-
nation must be made in light of the entire record [includ-
ing the strength of the state’s case without the evidence
admitted in error].’’ (Citation omitted; internal quota-
tion marks omitted.) Id. We conclude that any error
was harmless beyond a reasonable doubt.
Whether an error is harmless in a particular case
depends on several factors, including the importance
of the witness’ testimony to the state’s case, whether
the testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the witness’
testimony on material points, the extent of cross-exami-
nation otherwise permitted, and the overall strength of
the prosecution’s case. State v. Shaw, 312 Conn. 85,
102, 90 A.3d 936 (2014). ‘‘Most importantly, we must
examine the impact of the evidence on the trier of fact
and the result of the trial. . . . If the evidence may
have had a tendency to influence the judgment of the
jury, it cannot be considered harmless.’’ (Internal quota-
tion marks omitted.) Id.
The following additional facts, some of which we
already have discussed, are relevant to our analysis.
Joseph Rainone, a firearms examiner for the Waterbury
Police Department, testified that, on the basis of bullet
fragments found at the scene of the crime, it was incon-
clusive whether all of the bullets had been fired from
the same gun, and it was possible that either one or
more firearms had been used. However, he testified
that all of the bullets fired were .38 class bullets, which
could be fired from either a .38 revolver or a .357
revolver. Additionally, he testified that at least five, but
as many as seven, gunshots were fired. Thus, it was
possible that all of the bullets could have been fired
from Vance’s .357 revolver or from both Vance’s .357
revolver and another firearm (either a .357 or a .38
revolver).
There was conflicting testimony at trial concerning
whether the defendant possessed and/or used a firearm
during the incident. As detailed in part I A of this opin-
ion, in the prior statements of Bugg and Vance that
were admitted for substantive purposes under Whelan,
both stated that the defendant had a .38 revolver in his
possession at the time of the incident, although they
later recanted on the witness stand and testified that
he did not have a gun. Additionally, in his statement to
the police, which also was admitted for substantive
purposes under Whelan, Oliphant stated that he knew
that the defendant possessed a .38 revolver because he
previously had seen the defendant with it, although
not necessarily during the incident at issue. Oliphant
disputed this knowledge during his testimony at trial.
In addition to the testimony previously discussed,
the state also presented the testimony of Foote. Foote
testified that, after the shooting, Bugg told him that
both the defendant and Vance had attempted to rob
the victim and shot at him. The state also offered the
testimony of Sade Stevens, who had been at Oliphant’s
apartment in his bedroom when the defendant, Bugg,
and Vance arrived after the shooting. She testified that
she heard the defendant say that they had tried to rob
the victim and that she heard Vance say that he shot
the victim. However, she testified that she did not hear
the defendant confess to shooting the victim. The state
then had Stevens’ prior statement to the police read
into the record for substantive purposes under Whelan.
In her statement, Stevens stated that she had heard
both the defendant and Vance admit to shooting the
victim. Further, the state offered the testimony of Omar
Wilson (Omar), the defendant’s uncle. Omar testified
that, in May, 2010, approximately four months after the
incident at issue, he saw the defendant with a gun.
Although it is true that Bugg and Vance recanted their
prior statements that were admitted under Whelan, the
jury was entitled to credit and rely on the Whelan state-
ments. See, e.g., State v. Dupigney, 78 Conn. App. 111,
120–22, 826 A.2d 241 (admission of evidence identifying
defendant as shooter, even if improper, was neverthe-
less harmless beyond reasonable doubt because, inter
alia, three other witnesses also identified defendant
as shooter, including witness whose identification was
admitted under Whelan because he recanted on witness
stand at trial), cert. denied, 266 Conn. 919, 837 A.2d 801
(2003). This is especially so in light of the fact that,
despite the recantations by Bugg and Vance, the testi-
mony and statements that Foote and Stevens gave to
the police corroborated the prior statements of Bugg
and Vance that the defendant was armed with a firearm
during the incident. Thus, even without the identifica-
tion testimony of Robinson and George Frazier, the jury
heard testimony from four other witnesses that the
defendant possessed a firearm at the time of the shoot-
ing and testimony from one witness, Omar, that the
defendant possessed a firearm after the shooting. That
testimony establishes beyond a reasonable doubt that
the jury would have returned a guilty verdict, even with-
out the impermissible identification testimony. See, e.g.,
State v. Artis, 314 Conn. 131, 159–60, 101 A.3d 915
(2014) (even if identification testimony was improper,
it was harmless beyond reasonable doubt because of
other identification testimony by witness who person-
ally knew defendant); State v. Dupigney, supra, 120–22
(admission of evidence identifying defendant as
shooter, even if improper, was nevertheless harmless
beyond reasonable doubt because three other witnesses
also identified defendant as shooter).
Moreover, defense counsel had the opportunity to,
and did, extensively cross-examine George Frazier
about his identification testimony. See State v. Artis,
supra, 314 Conn. 160–61 (considering fact that defense
counsel extensively cross-examined witness in deter-
mining whether improper identification testimony
was harmless). Defense counsel heavily attacked
George Frazier’s credibility. George Frazier continu-
ously contradicted himself, and his response to most
questions was that he had no recollection, although he
already had answered most of the questions on direct
examination. He also testified that he had had surgery a
few months after the victim’s murder to remove a brain
tumor. Not only did defense counsel attack George Fra-
zier’s credibility, but the state similarly questioned him
about his identification of the defendant, pointing out
that he never previously had identified the defendant and
never told the police or the prosecutor that he had wit-
nessed the shooting. The state even went so far as to
question George Frazier about whether he ‘‘actually saw
[the defendant] with a gun, or are you just saying that
because you wanted to help out your brother’s mem-
ory?’’ The state’s skepticism is clear in the record.
Furthermore, in arguing to the jury that the defendant
possessed a firearm during the incident, the state primar-
ily relied on the Whelan statements and the testimony of
Bugg and Vance, with minimal reliance on the identifica-
tion testimony of Robinson and George Frazier. With
regard to the charge of attempted murder, the state
argued in summation to the jury: ‘‘And in this particular
count, count two, it has to be that they were armed with
a deadly weapon. Well, again, it doesn’t have to be that
they both had guns; it has to be that either [the defendant]
or [Vance] must have been armed. And the testimony is,
however, though, that they both had guns. [Bugg] said
they did in his statement. [Vance] said they did in his
statement. [Bugg] said it at the testimony he gave at the
probable cause hearing, and [Vance] said it when he
plead[ed] guilty to the crimes.’’ Although the state did
refer to Robinson’s testimony that she saw two shooters
in relation to the felony murder charge in regard to the
charge of criminal possession of a firearm, the state did
not rely on Robinson’s testimony, arguing only: ‘‘So, the
next question is, did he possess a firearm on January 18,
2010. Bugg said he had one. [Vance] said he had one.’’ In
addition to relying on the Whelan statements of Bugg and
Vance, the state also relied on Omar’s testimony that he
saw the defendant with a gun a few months after the vic-
tim’s murder, ‘‘which means the defendant had an instru-
mentality of the crime.’’
The state’s overall reliance on the identification testi-
mony at issue was minimal. The state referred to George
Frazier only three times during closing argument—to
argue the direction in which the gunshots were fired (but
not who was shooting), to argue that the victim was
heard calling out for his mother, and to argue that the
jury should take into consideration the fact that he had
had a brain tumor when considering his testimony. The
state did not rely on or reference George Frazier’s identi-
fication of the defendant in any way. The state, on four
occasions, referenced Robinson’s testimony that she
saw two shooters and argued that the jury should take
into consideration the fact that she was emotionally dis-
traught when she spoke to the police when considering
her testimony and statement to the police. These refer-
ences, however, were overshadowed by the state’s
repeated references to testimony from other witnesses
that the defendant possessed a firearm—specifically,
nine references to the testimony of Bugg or Vance, two
references to the testimony of Stevens, and three refer-
ences to the testimony of Omar.
Accordingly, we conclude that, to the extent that the
identification testimony of Robinson and George Frazier
was improper, it was harmless beyond a reasonable
doubt because it was cumulative of other identification
testimony, it was subject to extensive cross-examina-
tion, it was minimally relied on by the state in closing
argument, and, even without their testimony, there was
sufficient evidence for the jury to find the defendant
guilty beyond a reasonable doubt.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The defendant also was found guilty of a second count of attempted rob-
bery in the first degree in violation of §§ 53a-49 (a) (2) and 53a-134 (a) (4), but
the trial court vacated that finding at sentencing, pursuant to State v. Polanco,
308 Conn. 242, 245, 61 A.3d 1084 (2013).
2
‘‘The state’s ballistics expert noted that a .38 class bullet could be fired
from a nine millimeter pistol, a .38 Special revolver, or a .357 Magnum
revolver.’’ State v. Collymore, supra, 168 Conn. App. 851 n.2.
3
Although the state indicated it was granting Bugg only use immunity,
because it granted him immunity pursuant to § 54-47a, it necessarily granted
him both use immunity and transactional immunity. See Furs v. Superior
Court, 298 Conn. 404, 410–11, 3 A.3d 912 (2010) (§ 54-47a [b] necessarily pro-
vides witness with both use and transactional immunity, and state cannot
restrict its offer of immunity to only use or only transactional immunity).
4
The state then requested that the court inform the jury that Bugg had been
granted immunity and was compelled to testify. Over defense counsel’s objec-
tions, the trial court informed the jury prior to the start of Bugg’s testimony
that he had been compelled to testify under § 54-47a, although the court did
not specifically say that he had been granted immunity.
5
The state argues that the defendant’s claim, as it relates to Vance, fails
because the record is inadequate to establish that the state ever granted him
immunity. Although it is true that the state did not explicitly grant Vance immu-
nity on the record prior to the start of his testimony, the state did later clarify
on the record that it had granted Vance immunity from prosecution for the
crime of making a false statement. In light of this clarification, the state’s argu-
ment fails.
6
The trial court informed Oliphant that ‘‘you have been given transactional
immunity by the state.’’ See footnote 3 of this opinion.
7
For some of the witnesses, there was a delay between the admission of
the Whelan statements and the recommencement of direct examination. Bugg
was not recalled by the state until approximately nine days later, after ten
other witnesses had testified on behalf of the state. Vance was not recalled
by the state until approximately eight days later (although due to weather,
evidence was presented during only two of those eight days), after six other
witnesses had testified on behalf of the state. Direct examination of Oliphant
recommenced immediately after his prior statement to the police was read
into the record.
8
Bugg testified that he signed his statement to the police and testified at
the hearing in probable cause because he was promised a plea deal that limited
his period of incarceration to five years. He also alleged that he had been
slapped and hit by the officers prior to agreeing to sign the statement.
Vance testified that he signed his statement to the police only so that he
would not receive the death penalty and testified at the plea proceedings con-
sistently with the statement only so that he would receive a lesser sentence.
Vance testified that not only did he not make a statement to the police but
that the language in the statement was inconsistent with how he spoke.
Oliphant testified that he was bullied, beaten, and forced by the police into
making a false statement against the defendant. According to Oliphant, he
does not speak in the manner used in the statement and never would have
used the phrases contained in the statement. He further testified that he was
offered a plea deal if he perjured himself and testified in a manner that was
consistent with his statement to the police.
9
The defendant never requested that the trial court determine whether
immunity under § 54-47a extended to testimony given during the defense case
but, rather, agreed with the trial court that whether a witness is granted immu-
nity is solely in the hands of the state and that the court could not require that
immunity be granted. When the trial court inquired as to what defense counsel
was seeking from the court, counsel responded that he did not believe that
the court could do anything but nevertheless requested that the jury be advised
that the prior immunity had been revoked. The court declined to give the jury
this instruction.
10
The state also questioned Bugg about phone conversations he had had
with his sister and mother while he was incarcerated. Bugg testified that he
did not recall the substance of the conversations but that he might have told
his sister that Vance was willing to help him. He said that he did not recall
telling his sister that, if he gave Vance ‘‘some kitty,’’ everything would be fine.
He did recall telling his mother or sister to tell Foote that they needed to talk
so that Foote would tell the truth.
After Bugg’s testimony in the state’s case concluded, the state played audio
recordings of these telephone conversations. In one recording, Bugg told his
sister that, if he could ‘‘get that nigga’ some kitty, and everything’s gonna be
good.’’ He also informed his sister that ‘‘I’m trying to help the other nigga’ out.’’
11
On cross-examination by the state, Bugg invoked his fifth amendment
privilege as to four other questions: (1) whether he had testified inconsistently
at the hearing in probable cause about whether the purpose of going to Dia-
mond Court was to purchase marijuana, (2) whether he had testified inconsis-
tently during the state’s case-in-chief about remembering the telephone con-
versation with his sister about ‘‘kitty,’’ (3) whether he had ever threatened
Foote, and (4) whether he failed to inform the police that the reason he, the
defendant and Vance had gone to Diamond Court was to purchase marijuana.
The defendant, however, does not argue that he was harmed by Bugg’s refusal
to respond to these questions.
12
Although Vance had pleaded guilty pursuant to a plea deal at the time of
the defendant’s trial, he had not yet been sentenced because his sentence was
contingent on whether he testified truthfully at the defendant’s trial.
13
The defendant does not argue that he was harmed by Oliphant’s invocation
of his fifth amendment right in response to questions by the state on cross-
examination during the defense case-in-chief.
14
Section 54-47a (a) permits a prosecutor to apply to the court for an order
directing a witness, who has invoked his fifth amendment privilege against
self-incrimination, to testify if the prosecutor determines that the testimony
of the witness ‘‘in any criminal proceeding involving . . . felonious crimes
of violence . . . or any other class A, B or C felony . . . [is necessary to
obtain] sufficient information as to whether a crime has been committed
or the identity of the person or persons who may have committed a crime
. . . [and] is necessary to the public interest . . . .’’
Section 54-47a (b), however, prohibits the witness from being ‘‘prosecuted
or subjected to any penalty or forfeiture for or on account of any transaction,
matter or thing concerning which he is compelled to testify or produce
evidence, and no testimony or evidence so compelled, and no evidence
discovered as a result of or otherwise derived from testimony or evidence
so compelled, may be used as evidence against him in any proceeding,
except that no witness shall be immune from prosecution for perjury or
contempt committed while giving such testimony or producing such evi-
dence.’’
15
Contrary to the state’s argument, the defendant does not contend that
the witnesses were entitled to additional immunity for subject matter not
covered by the preexisting immunity. For this reason, we do not need to
determine whether the defendant had a constitutional or statutory right to
have these witnesses granted additional immunity.
16
Even if we assume that immunity extends throughout the entire trial,
this in no way means that the statute permits an immunized witness to testify
falsely; the statute specifically prohibits the state from granting immunity
for perjury a witness commits while giving testimony under a grant of
immunity. See General Statutes § 54-47a (b); see also State v. Giraud, 258
Conn. 631, 634, 783 A.2d 1019 (2001) (immunity is not ‘‘a license to lie’’
[internal quotation marks omitted]). The defendant does not argue oth-
erwise.
17
We note that, although the defendant argues before this court that the
trial court failed to rule on the issue of whether the statute provided the
witnesses with immunity throughout the entirety of the trial, the defendant
never requested that the trial court decide this issue. Although the defendant
argued at trial that the state’s actions violated his rights to present a defense
and to due process because the state was unfairly depriving him of witness
testimony by scaring the witnesses from the witness stand, he did not
argue that the state violated the statute. Defense counsel even admitted
that whether immunity was granted was solely in the hands of the state
and not within the power of the court. Defense counsel did not take issue
with the state’s argument that, under the statute, immunity extended only
to the witnesses’ testimony during the state’s case. When the trial court
inquired what defense counsel was seeking from the court on this issue,
defense counsel responded that he did not think the court could do anything
about whether the witnesses’ immunity extended to the defense case-in-
chief but requested that the jury be instructed that the state had revoked
immunity, which the trial court denied. Although the trial court stated that
it was unclear whether immunity extended to the defense case-in-chief, it
did not fail to decide this issue because the defendant never sought a ruling
on this issue.
Because the defendant did not raise a statutory claim at trial that the
state improperly applied § 54-47a by revoking immunity, to the extent that
the defendant’s claim is not constitutional in nature, we do not review his
statutory claim for harmless error, even if we assume that the state’s actions
violated § 54-47a. See Crawford v. Commissioner of Correction, 294 Conn.
165, 203, 982 A.2d 620 (2009) (‘‘we will not review a claim unless it was
distinctly raised at trial’’); Eubanks v. Commissioner of Correction, 329
Conn. 584, 597, 188 A.3d 702 (2018) (same).
Despite the defendant’s failure to raise this statutory claim at trial, to the
extent that his constitutional claim relies on a violation of § 54-47a, we do
not find it unpreserved. At trial, the defendant claimed that the state’s actions
regarding immunity violated his constitutional rights. The fact that the defen-
dant now argues that the state’s actions likewise violated § 54-47a does not
make his constitutional claim unpreserved, nor does the state so argue.
The defendant’s argument on appeal—that the state’s actions violated his
constitutional rights to due process and to present a defense because the
state employed tactical gamesmanship to scare the witnesses from the
witness stand and, thus, unfairly deprived him of their testimony—is the
same as his argument before the trial court, regardless of the reference to
§ 54-47a. See, e.g., Crawford v. Commissioner of Correction, supra, 294
Conn. 203 (‘‘[w]e may . . . review legal arguments that differ from those
raised before the trial court if they are subsumed within or intertwined with
arguments related to the legal claim raised at trial’’).
18
This framework has been used predominantly for evaluating whether
the state’s refusal to grant immunity to a defense witness, who never has
been granted immunity, violated the defendant’s constitutional rights. See
State v. Kirby, supra, 280 Conn. 402–404. It also has been applied by this
court to determine whether the state violated a defendant’s constitutional
rights when it granted a witness immunity at one stage of the proceedings
(the hearing in probable cause) but declined to extend that immunity to
the same witness when called as a defense witness during trial. State v.
Giraud, supra, 258 Conn. 635–37. The parties do not dispute that this frame-
work applies under the procedural posture and facts of this case; in fact,
the defendant relies on it in support of his constitutional claim. Although
we have been unable to identify any federal cases in which this framework
has been applied when immunity has been revoked, rather than when the
state has declined to grant immunity, this framework appears to be equally
applicable to the constitutional analysis in the present case because it consid-
ers whether the state engaged in a discriminatory grant of immunity, which
is how the defendant in the present case categorizes the state’s actions—
discriminatorily granting immunity for the state’s case but revoking that
immunity during the defendant’s case to gain a tactical advantage.
Additionally, we note that, although the nomenclature of the prosecutorial
misconduct theory is similar to a claim for prosecutorial impropriety, these
are two separate and distinct claims, and the defendant in the present case
does not raise a prosecutorial impropriety claim.
19
The defendant also argues that Bugg refused to respond to questions
about a telephone conversation with his sister involving ‘‘kitty.’’ Our review
of the record, however, shows that Bugg did respond to defense counsel’s
inquiries about that subject during direct examination in the defense case.
See also footnote 10 of this opinion. The defendant has not identified any
questions that he was unable to ask or any new information that he was
unable to obtain regarding this subject matter.
20
The immunity that the state had granted to Bugg was limited to drug
activity that he was engaged in on the day of the murder. See part I A of
this opinion. Although the state indicated that it did not intend to prosecute
Bugg for making a false statement at the hearing in probable cause, no
immunity was officially granted. See id.; see also State v. Williams, 200
Conn. 310, 319, 511 A.2d 1000 (1986) (‘‘the right to one’s privilege against
prosecution that could result from the testimony sought does not depend
upon the likelihood of prosecution but upon the possibility of prosecution’’);
Murphy v. Nykaza, Superior Court, judicial district of Fairfield, Docket No.
320696 (May 17, 1995) (14 Conn. L. Rptr. 289, 290) (‘‘a prosecuting attorney’s
indication in a particular case that he will not prosecute . . . [is] not suffi-
cient to defeat a claim of privilege’’ [internal quotation marks omitted]).
21
The defendant does not argue that he was harmed by Oliphant’s invoca-
tion of his fifth amendment right in response to questions by the state during
cross-examination in the defense case about a man named Jamel, with whom
the defendant was arrested and who testified about hearing him being beaten
by detectives while in police custody.
22
Our review of the record does not show that Oliphant testified that he
felt guilty about Vance. Oliphant testified that, when Vance had been living
in North Carolina, he called Oliphant and said he was staying in an abandoned
house, and so Oliphant ‘‘felt bad’’ for him and invited Vance to stay with
him in Connecticut. Oliphant, however, did testify on direct examination in
the state’s case-in-chief that he felt ‘‘a lot of guilt’’ about this case. On cross-
examination, defense counsel inquired into this subject, in response to which
Oliphant testified that he felt guilty for lying and incriminating the defendant,
his best friend, by signing a false statement, which he signed only because
the detectives beat and coerced him.
23
The defendant argues that the harm caused by the exclusion of this
testimony was compounded by the state’s reliance on the unavailable testi-
mony in its summation to the jury. See State v. Carter, 228 Conn. 412,
428–29, 636 A.2d 821 (1994), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107
L. Ed. 2d 963 (1990); id., 428 (‘‘the harm to the defendant’s claim of self-
defense resulting from the exclusion of the victim’s criminal record was
compounded when the assistant state’s attorney, in his rebuttal to the defen-
dant’s closing argument, commented’’ that there was no evidence that victim
was bad person).
Although we agree that a defendant may be harmed by the improper
exclusion of evidence if the prosecutor, in summation to the jury, relies on
the significance of the missing evidence, this is not such a case. After having
thoroughly reviewed the record, we determine that the state did not rely
on the absence of the improperly excluded testimony during its summation.
24
Both the victim’s mother, Nelly Robinson, and brother, George C. Fra-
zier, testified at the criminal trial that they saw a white getaway vehicle
from the front door of their apartment, which conflicted with Bugg’s testi-
mony about parking the vehicle behind and between two of the apartment
buildings. See part II A of this opinion.
25
Foote testified at trial that Bugg informed him that he had witnessed
the shooting. The defendant argues that, because Foote testified after Bugg,
he should have been permitted to question Bugg about whether he witnessed
the shooting. The defendant, however, never asked Bugg during direct exami-
nation in the defense case-in-chief whether he witnessed the shooting, and,
thus, Bugg never invoked his fifth amendment privilege in response to this
question. In the absence of such a record, we cannot say that the defendant
was harmed.
26
The defendant argues that the Appellate Court speculated that the wit-
nesses’ testimony during the defense case would have been cumulative but
that there is no way to know or for him to have created a sufficient record
because the state prevented him from obtaining answers to these questions.
The case cited by the defendant, however, is distinguishable because it
involved an error of constitutional magnitude, thereby requiring the state
to prove that the error was harmless beyond a reasonable doubt, which it
could not do in the absence of a sufficient record. See State v. D’Ambrosio,
212 Conn. 50, 61, 561 A.2d 422 (1989) (‘‘[o]n the present record, we cannot
conclude that the court’s error, which implicates the defendant’s constitu-
tional right to impeach and discredit state witnesses, was harmless beyond
a reasonable doubt’’), overruled in part on other grounds by State v. Bruno,
236 Conn. 514, 523–24 n.11, 673 A.2d 1117 (1996).
In the present case, under the prosecutorial misconduct theory, the burden
is on the defendant to provide a sufficient record and to establish that the
testimony would not have been cumulative. The trial court advised defense
counsel to ask any questions he had and to create an adequate record. In
light of the fact that the witnesses invalidly invoked their fifth amendment
rights in response to questions that they already had answered in the state’s
case, there is no reason in the record to suspect that any additional testimony
would have been any different from their prior testimony.
27
Because we have determined that, even if the state improperly revoked
immunity, and the witnesses subsequently invalidly invoked their fifth
amendment rights, the defendant has failed to establish that this error was
constitutional under the prosecutorial misconduct theory on the ground
that he has failed to establish that the testimony would not have been
cumulative, we need not address the state’s alternative argument that any
error in the revocation of immunity as to Vance was harmless because the
statute of limitations for the crime of making a false statement had expired.
See State v. Giraud, supra, 258 Conn. 638.
28
Both the trial court and the state correctly stated that the defendant
had the right to recall the state’s witnesses during the defense case-in-chief
and question them on new topic areas not raised during the state’s case.
29
We note that the defendant did not object to the court’s admonitions
to the witnesses. However, because the record is adequate for review and
the defendant’s claim is of constitutional magnitude, we review it pursuant
to 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) (modifying third
condition of Golding); see State v. Fred C., 167 Conn. App. 600, 609, 142
A.3d 1258 (reviewing under Golding unpreserved claim that trial court’s
perjury admonition to witness violated defendant’s due process rights), cert.
denied, 323 Conn. 921, 150 A.3d 1150 (2016); see also State v. Elson, 311 Conn.
726, 754–55, 91 A.3d 862 (2014) (defendant was not required to affirmatively
request review under Golding).
30
The defendant further argues that his rights to due process and to
present a defense were violated by the trial court’s failure to decide whether
§ 54-47a required the state to extend immunity throughout the trial proceed-
ings. The defendant, however, never requested that the trial court determine
whether the statute provided the witnesses immunity throughout the entire
trial and not merely during the state’s case-in-chief. See footnote 17 of
this opinion.
31
For purposes of this opinion, ‘‘first time in-court identification’’ refers
to in-court identifications in cases in which the witness has not successfully
identified the defendant in a prior out-of-court identification procedure.
32
On cross-examination, defense counsel, using a photograph of Diamond
Court, asked Robinson to use a pointer to show where on the photograph
the victim and the shooters were located when she looked out her window
and saw the shooting. In describing the events, Robinson testified that
the shooters chased after the victim but then stopped running and started
shooting. In describing where the shooters stopped, she testified: ‘‘This guy
right here—the short, fat one—went up, shot him twice, pushed back. The
other tall, skinny one went up, shot him twice . . . .’’
The defendant does not argue on appeal that Robinson’s use of the phrase,
‘‘[t]his guy right here,’’ meant that she was specifically pointing to and
identifying the defendant. Although the record is unclear, it is equally possi-
ble that Robinson’s statement referred to where on the photograph she was
pointing, as in, ‘‘this guy, the guy standing right here where I am pointing.’’
The record does not reflect that she identified the defendant, and neither
party has argued that she did.
33
Officer Michael Modeen, who responded to the scene of the crime,
testified that Robinson did not inform him that she had witnessed the
shooting or seen the shooters but, rather, that she heard several loud bangs
and then opened the front door to find the victim fall to his back and see
a white car speed away with two or three males inside. Modeen, however,
did testify that Robinson was overcome with emotion and that she had
difficulty conveying this information.
34
The state argues that, when identity is not at issue, Dickson does not
apply. We have classified the impact of the rule in Dickson a bit differently,
however, but with the same result in this case. We have held that the
procedural rule in Dickson applies to all first time in-court identifications.
Under Dickson, prospectively, all first time in-court identifications must be
prescreened, with the trial court having discretion to permit the admission
of these identifications in cases in which identity is not at issue. Similarly,
in cases pending at the time of this court’s decision in Dickson, the lack of
prescreening is harmful only if identity was at issue. Thus, Dickson makes
clear that first time in-court identifications implicate due process only if
identity is at issue.