State v. O'Donnell

 STATE OF CONNECTICUT v. GERALD
O’DONNELL
(AC 36606)
DiPentima, C. J., and Beach and Danaher, Js.*
Syllabus
Convicted of the crimes of bribery of a witness and tampering with a witness,
the defendant appealed to this court. He claimed, inter alia, that the
evidence was insufficient to support his conviction because the state
failed to prove both that he intended to bribe a witness, S, when he
purchased a television for her, or that he induced or attempted to induce
her to testify falsely in a prior proceeding. The defendant, a private
investigator, had been assisting attorneys for two men, G and T, who,
in 2003, filed petitions for writs of habeas corpus seeking a new trial
after having been convicted in 1995 of various crimes, including murder,
in connection with the 1993 robbery of a retail store and the shooting
death of its owner. S, who was a key witness in the criminal trial of G
and T, testified that G and T were at the store on the morning of the
murder. Prior to the criminal trial, S, in 1993, gave the police two written
statements in which she averred that she was in the vicinity of the store
on the morning of the robbery and murder, and identified G and T as
having been involved in the incident. Later in 1993, S gave testimony
at a hearing in probable cause that was consistent with the events she
had described in her first written statement and with her later testimony
in the 1995 criminal trial. In 2006, S gave the defendant a signed statement
in which she recanted the testimony that she gave in the criminal trial
and averred that she had not been present at the scene at the time of
the murder and that her prior statements were untrue. The defendant
thereafter drove S to visit her mother and to medical appointments,
bought her food and a television, helped pay her rent and gave her
money that she used to purchase a stereo. The defendant also told S
that he did not think that G and T were guilty of the murder, and that
she might be able to obtain money in the future, depending on the
outcome of G’s and T’s habeas trial. At the habeas trial in 2009, S testified
that she lied in the written statements that she gave to the police in
1993, and in her testimony both at the hearing in probable cause and
at the criminal trial. After the habeas court rendered judgments granting
G’s and T’s habeas petitions, the Supreme Court reversed the judgments
and remanded the matter for a new habeas trial. In preparation for the
second habeas trial, the police in 2011 met with S, who told the police
that the defendant had convinced her that her testimony in the 1995
criminal trial was wrong and that she should not speak with the state.
Although S told the police that she would testify truthfully in the second
habeas trial and confirm the testimony that she gave in G’s and T’s
criminal trial, she asserted her fifth amendment privilege in the second
habeas trial and did not testify. The habeas court thereafter denied the
habeas petition. Held:
1. The evidence was sufficient to support the defendant’s conviction of
bribery of a witness, as the jury reasonably could have found that the
defendant intended to bribe S when he purchased the television for
her; although S’s 2006 recantation to the defendant predated his 2007
purchase of the television, the jury reasonably could have found that
he gave the television to S with the intent to influence her testimony
at the first habeas trial and to ensure that she testified consistent with
her 2006 recantation, as the defendant knew that S had given different
accounts as to where she was on the morning of the murder, he helped
her pay her rent and gave her money that she used to purchase the
stereo, and, after her recantation to him, he drove her to different
locations, bought her candy and pizza, and told her that she might be
able to obtain money depending on the outcome of the first habeas trial.
2. The defendant’s conviction of tampering with a witness was supported
by sufficient evidence demonstrating that he induced S to testify falsely
in the first habeas trial: contrary to the defendant’s claim, the jury was
presented with evidence from which it could have concluded that S
testified truthfully in 1993 and 1995, and that the defendant had induced
S to testify falsely in 2009, as S testified at both the hearing in probable
cause in 1993 and the criminal trial in a manner that was consistent
with her 1993 written statements to the police, in which she stated that
she was in the vicinity of the store at the time of the murder and
identified G and T as having been involved in the incident, and testimony
from other witnesses supported the assertions that S made in 1993
and 1995; moreover, the defendant’s unpreserved claim that the ‘‘one-
witness-plus-corroboration’’ rule that is applicable to perjury prosecu-
tions should apply to his conviction of witness tampering was not review-
able, as the claim was not of constitutional magnitude and, thus, not
reviewable pursuant to a sufficiency of the evidence analysis, and, never-
theless, there was sufficient evidence of corroboration for the jury rea-
sonably to conclude that the defendant induced or attempted to induce
S to testify falsely at the first habeas trial.
3. The trial court did not abuse its discretion in denying the defendant’s
motion to set aside the verdict, in which he claimed that the evidence
was confusing and was presented by the state in a one-sided manner
in order to establish that S’s 1993 and 1995 version of the events at
issue was true; although the defendant claimed that the jury returned
its verdict without having had access to highly relative and material
information in the transcripts of S’s 2006 recantation and her 2009
testimony in the first habeas trial, the defendant cross-examined a state’s
witness about S’s 2006 statement and marked it as a defense exhibit
for identification only but did not seek to have it admitted as a full
exhibit, he provided no authority that required the state to offer and
the court to admit into evidence S’s 2009 habeas trial testimony, S’s
testimony at the first habeas trial was consistent with her testimony at
the defendant’s trial, and the jury did not send to the court any notes
during deliberations indicating that it was confused by the court’s jury
instructions as to S’s prior statements.
4. The defendant could not prevail on his unpreserved claim that the trial
court improperly failed to include in its jury charge on witness tampering
an instruction regarding the ‘‘one-witness-plus-corroboration’’ rule,
which has been adopted for perjury prosecutions: that court properly
charged the jury regarding the elements of tampering with a witness,
and even if the ‘‘one-witness-plus-corroboration’’ rule applied to this
case, there was sufficient corroboration evidence for the jury reasonably
to conclude that the defendant induced or attempted to induce S to
testify falsely in the first habeas trial; accordingly, the trial court’s failure
to charge the jury on the ‘‘one-witness-plus-corroboration’’ rule did not
constitute plain error, and this court declined to exercise its supervisory
authority over the administration of justice to require trial courts to
instruct juries regarding that rule in cases such as the present one.
5. The defendant could not prevail on his claim that the trial court erred
when it permitted S to invoke her fifth amendment privilege in front of
the jury and refused his request to have her testify, instead, in a proffer
outside of the jury’s presence concerning her invocation of that privilege;
notwithstanding the defendant’s assertion that the state had reason to
believe S would invoke her fifth amendment privilege, the record showed
that the parties and the court assumed that S would invoke the privilege
and that the state would immunize her, the state did not attempt to
build its case out of inferences arising from the privilege and did not
advocate for S to invoke the privilege in the jury’s presence, the defen-
dant had the opportunity to cross-examine S when she continued testi-
fying after she invoked the privilege and received immunity, and the
jury, which already had heard evidence indicating that on prior occasions
S had given conflicting testimony and had invoked her fifth amendment
privilege in the second habeas trial, reasonably could have inferred that
S invoked the privilege to protect herself from criminal prosecution and
not because there was a connection between her possible criminal
conduct and the defendant’s possible criminal conduct.
6. The trial court did not abuse its discretion when it granted the state’s
motion to quash the defendant’s subpoena for information related to
the witness protection program, as the subpoena was overly broad in
that it sought records pertaining to all benefits provided by the witness
protection program, rather than records supporting a claim that benefits
had been provided with the intent to alter testimony or to induce false
testimony, and it sought information that was protected from disclosure
by the witness protection statute (§ 54-82t [j]); moreover, although the
defendant claimed that the conduct of his defense team was not materi-
ally different from that of the state in administering the witness protec-
tion program, and that the court, by quashing his subpoena, impaired
his right to present a defense, including a selective prosecution claim,
the purpose of that program is to protect witnesses from harm, whereas
the offenses with which the defendant was charged involved altering
testimony or inducing false testimony from a witness, and he presented
no evidence that he was similarly situated to the individuals who adminis-
ter the witness protection program for purposes of his selective prosecu-
tion claim.
Argued January 9—officially released July 18, 2017
(Appeal from Superior Court, judicial district of
Tolland, Graham, J.)
Procedural History
Substitute information charging the defendant with
two counts each of the crimes of tampering with a
witness and perjury, and with the crime of bribery of
a witness, brought to the Superior Court in the judicial
district of Tolland, where the court, Graham, J., granted
the state’s motion to quash; thereafter, the matter was
tried to the jury; subsequently, the court granted the
defendant’s motion for a judgment of acquittal as to
one count of tampering with a witness and denied the
defendant’s motion for a mistrial; verdict of guilty of
bribery of a witness and one count of tampering with
a witness; thereafter, the court denied the defendant’s
motion to set aside the verdict and rendered judgment in
accordance with the verdict, from which the defendant
appealed to this court. Affirmed.
Richard Emanuel, for the appellant (defendant).
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were Matthew C. Gedansky, state’s
attorney, and Marcia A. Pillsbury, assistant state’s
attorney, for the appellee (state).
Opinion
DANAHER, J. The defendant, Gerald O’Donnell,
appeals from the judgment of conviction, rendered after
a jury trial, of bribery of a witness in violation of General
Statutes § 53a-149 and tampering with a witness in viola-
tion of General Statutes § 53a-151. On appeal, the defen-
dant claims that (1) the evidence was insufficient to
support his conviction, (2) the trial court erred in refus-
ing to set aside the guilty verdict as being against the
weight of the evidence, (3) the court erred in instructing
the jury on the elements of tampering with a witness,
(4) the court erred in denying the defendant’s request
for a witness to testify, in a proffer, outside the presence
of the jury, and (5) the court erred in granting the state’s
motion to quash the defendant’s subpoena requesting
information and materials related to the witness protec-
tion program. We affirm the judgment of the trial court.
This appeal comes before this court following exten-
sive litigation involving the murder of Eugenio Vega,
the owner of La Casa Green, a retail store on Grand
Avenue in New Haven, in the early morning hours of
July 4, 1993. An understanding of the facts and proce-
dural history involving the prior litigation, as the jury
reasonably could have found, is necessary in order to
understand fully the issues presented in the defen-
dant’s appeal.
On the morning of Vega’s murder, Pamela Youmans
went to La Casa Green to make a purchase. Vega was
alive when Youmans left the store. After Youmans left
but while she was still in the vicinity of La Casa Green,
she tossed a coin over her shoulder and a woman with
a limp picked it up.1 That same morning, Mary Boyd
walked by La Casa Green and observed two black males
inside the store. One of the males was taller than the
other. Later that morning, when Boyd went into the
store to make a purchase, Vega was not there and did
not respond when Boyd called him, so Boyd called
911. Boyd then took some quarters, cigarettes and food
stamps and left before the police arrived because she
knew that there was an outstanding warrant for her
arrest. When the police responded to the call, they dis-
covered Vega, who had been shot and was deceased,
with his hands tied behind his back.
The New Haven Police Department questioned
Doreen Stiles in the course of the investigation into
Vega’s murder. Stiles provided two written statements
to the New Haven Police Department. In her first state-
ment, dated July 29, 1993, Stiles described how she was
in the vicinity of Vega’s store on the morning of the
murder when she saw a black male enter the store.
Because the man frightened her, Stiles hid next door
between the store and an alleyway, where she heard
arguing from inside and someone asking Vega for
money and to open the safe. She then heard a gunshot
and saw two black males leave the store.2 In her state-
ment of July 29, 1993, Stiles identified George M. Gould
as one of the individuals coming out of the store on
the date of the murder. On August 2, 1993, Stiles gave
a second written statement in which she identified Ron-
ald Taylor as the other individual involved in the inci-
dent. At a probable cause hearing on October 14, 1993,
Stiles testified consistently with her July 29, 1993 state-
ment to the police. She also testified that she saw Boyd
in the vicinity of the store on the morning of the murder.
At the criminal trial of Gould and Taylor in January,
1995, Stiles, who testified that she had a disability in
her leg, identified Taylor and Gould as being present
at Vega’s store on the morning of his murder.3 Following
a jury trial, Taylor and Gould were each convicted of
felony murder in violation of General Statutes § 53a-
54c, robbery in the first degree in violation of General
Statutes §§ 53a-134 (a) (2) and 53a-8, attempt to commit
robbery in the first degree in violation of General Stat-
utes §§ 53a-134 (a) (2), 53a-8 and 53a-49, and conspiracy
to commit robbery in the first degree in violation of
General Statutes §§ 53a-48 (a) and 53a-134 (a) (2).4 Our
Supreme Court affirmed the judgments of the trial
court, with the exception of Taylor’s conviction of
attempt to commit robbery in the first degree.5 State v.
Gould, 241 Conn. 1, 24, 695 A.2d 1022 (1997).
In 2003, following their convictions, Taylor and Gould
filed petitions for writs of habeas corpus. At that time,
Taylor was represented by Attorney Peter Tsimbidaros
and Gould was represented by Attorney Joseph Visone.
The defendant was assisting Tsimbidaros and Visone
as a private investigator. The defendant previously had
worked as an inspector with the New Haven state’s
attorney’s office. At some point, the defendant went to
see Stiles, who was in a nursing home in Manchester
undergoing rehabilitation for her legs, and indicated
that he was investigating Vega’s murder. They spoke
briefly and, upon questioning by the defendant, Stiles
told the defendant that she was not present at the scene
at the time of the murder.6 On December 6, 2006, Stiles
gave a signed statement to the defendant in which she
indicated that her prior statements regarding the mur-
der had been untrue.
Following the defendant’s initial meeting with Stiles
at the nursing home, the defendant continued to visit
Stiles approximately once a week for ‘‘a year, maybe
more.’’ During those visits, the defendant came to the
nursing home and checked to make sure he knew where
Stiles was and kept her informed about the case. On
two occasions during this period of time, the defendant
drove Stiles to visit her mother. He also drove her to
doctor appointments and bought her pizza and candy.
On May 12, 2007, the defendant purchased a television
and service plan for Stiles for a total of $204.43. He
also gave Stiles money that she used to buy a stereo
and told her that she might be able to obtain money in
the future depending on the outcome of Taylor’s and
Gould’s habeas trial.7
In 2009, Stiles left the nursing home and moved into
a motel with her husband, where she lived for approxi-
mately one year. During this time, the defendant periodi-
cally visited the motel to make sure that Stiles still lived
there and to tell her what was happening with the trial.
When Stiles was living in the motel, the defendant took
her to visit her mother. Stiles and her husband usually
paid the monthly rent of $930 at the motel. There were
‘‘a couple of months,’’ however, when the defendant
helped to pay the rent.8 During this time, the defendant
told Stiles that Taylor and Gould were trying to get a
new trial, and that he did not think they were guilty of
Vega’s murder. According to Stiles, she and the defen-
dant had become friends and they sometimes discussed
their personal lives.
On August 3, 2009, Taylor’s and Gould’s habeas trial
began. At that trial, Stiles testified that she had lied
about seeing Taylor and Gould when she gave the two
prior statements to the police in 1993, in her testimony
at the probable cause hearing in 1993 and in her 1995
criminal trial testimony.9 On March 17, 2010, the habeas
court, Fuger, J., granted the habeas petitions, conclud-
ing that Taylor and Gould had met their burden of proof
with regard to their claim of actual innocence.10 On July
19, 2011, our Supreme Court reversed the judgments
of the habeas court and remanded the matters for a
new habeas trial.11 Gould v. Commissioner of Correc-
tion, 301 Conn. 544, 571, 22 A.3d 1196 (2011).
Once the habeas trial ended, the defendant no longer
visited with or spoke to Stiles. This surprised Stiles
because prior to the trial, their friendship had been
‘‘somewhat consistent’’ and he had told her that he
would stay in touch with her. After the habeas trial in
2009, Stiles and her husband moved from the motel to
an apartment in New Haven. On July 6, 2011, Stephen
Coppola, a detective with the New Haven Police Depart-
ment, and Edwin Rodriguez, an inspector with the chief
state’s attorney’s office, went to see Stiles at her apart-
ment in New Haven to verify her address for the second
habeas trial that was coming up.12 She accompanied
them to the New Haven Police Department, where she
indicated that the defendant had ‘‘gotten inside [her]
head’’ and overwhelmed her when he talked about the
trial.13 Stiles indicated that the defendant had convinced
her that her testimony in the previous trial was wrong
and that she ‘‘didn’t see what she saw.’’ Finally, Stiles
informed Coppola and Rodriguez that the defendant
had provided her with a television and stereo. On July
13, 2011, John H. Bannon, Jr., an inspector with the
chief state’s attorney’s office, went to Stiles’ apartment
to talk to her regarding the statements she had made
to the other inspectors. While he was there, Bannon
took photographs of a television and stereo. At that
meeting, Stiles told Bannon that the defendant had told
her not to speak with the state at all and that the defen-
dant continually was harassing and bothering her.
The second habeas trial began on March 19, 2012.
Because Taylor had died in 2011, the second habeas
petition proceeded as to Gould only. Tsimbidaros and
Visone both represented Gould at the second habeas
trial. In preparation for the second habeas trial, Visone,
Tsimbidaros and the defendant met with Stiles at her
apartment in New Haven on April 11 or 12, 2012. As
Tsimbidaros, Visone and the defendant were leaving
Stiles’ apartment, the defendant shook his head and
said, in response to a question by Tsimbidaros, ‘‘the
places we’ve had to go and the things we’ve had to do,
you don’t want to know.’’
On May 7, 2012, prior to the conclusion of the second
habeas trial, the police executed a search warrant at
Stiles’ apartment and recovered the television and
stereo. That same date, the police arrested the defen-
dant at his home. On May 23, 2012, Bannon served a
subpoena on Stiles to testify at the second habeas trial.
At that time, Stiles told Bannon that she was going to
tell the truth and confirm her original trial testimony.
At the second habeas trial, however, Stiles asserted
her fifth amendment privilege and did not testify. On
September 18, 2012, the second habeas judge, Sfer-
razza, J., denied the second habeas petition.14
In this case, the defendant was initially charged with
one count of bribery of a witness, in violation of § 53a-
149, and two counts of tampering with a witness in
violation of § 53a-151. The state subsequently filed a
substitute information that added two counts of perjury
in violation of General Statutes § 53a-156. Following a
jury trial in 2013, the defendant was found guilty of
bribery of a witness and one count of tampering with
a witness.15 As a result of his conviction, the defendant
was sentenced to a total effective term of four years
of incarceration. The defendant then filed the present
appeal.
I
The defendant first argues that the evidence was
insufficient to establish his guilt of the crimes charged.
With regard to the bribery charge, the defendant argues
that the state failed to prove that his act of purchasing
a television for Stiles on May 12, 2007 was performed
with the specific intent to influence her testimony at
the habeas hearing in 2009. With regard to the tampering
with a witness charge, the defendant first argues that
the state failed to prove that he induced or attempted
to induce Stiles to testify falsely. The defendant further
argues that the state failed to satisfy the ‘‘one-witness-
plus-corroboration’’ standard of proof.
Before considering the defendant’s specific claims,
we set forth the applicable standard of review. ‘‘The
two part test this court applies in reviewing the suffi-
ciency of the evidence supporting a criminal conviction
is well established. First, we construe the evidence in
the light most favorable to sustaining the verdict. Sec-
ond, we determine whether upon the facts so construed
and the inferences reasonably drawn therefrom the jury
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt.’’ (Internal quotation marks omitted.) State
v. Lewis, 303 Conn. 760, 767, 36 A.3d 670 (2012). ‘‘This
court cannot substitute its own judgment for that of
the [finder of fact] if there is sufficient evidence to
support the [finder of fact’s] verdict.’’ (Internal quota-
tion marks omitted.) State v. Andriulaitis, 169 Conn.
App. 286, 292, 150 A.3d 720 (2016).
A
We first consider the defendant’s claim that the evi-
dence was insufficient to establish that he was guilty
of bribery of a witness in violation of § 53a-149. That
statute provides: ‘‘A person is guilty of bribery of a
witness if he offers, confers or agrees to confer upon
a witness any benefit to influence the testimony or
conduct of such witness in, or in relation to, an official
proceeding.’’ General Statutes § 53a-149 (a). To obtain
a conviction under § 53a-149 (a), ‘‘[t]he state . . . was
required to establish the following: (1) that the defen-
dant offered, conferred or agreed to confer a benefit,
(2) to a witness, (3) with the intent of influencing the
witness’ testimony or conduct in relation to an official
proceeding.’’ (Internal quotation marks omitted.) State
v. Brantley, 164 Conn. App. 459, 472, 138 A.3d 347, cert.
denied, 321 Conn. 918, 136 A.3d 1276 (2016). ‘‘[I]t is
unnecessary that the thing offered or given is to induce
a witness to testify falsely. It is sufficient if it were
given with intent to influence his testimony or conduct.
In the common acceptation of the term, the verb influ-
ence means to alter, move, sway, or affect. . . . If the
promise or payment [was] made with the intent to affect
the testimony or conduct of the prospective witness so
that he would thereby be induced to testify more or
less favorably to a party than he otherwise would have
done, an intent to influence within the meaning of the
statute exists.’’ (Internal quotation marks omitted.)
Id., 473.
‘‘[I]n determining the defendant’s guilt as to the brib-
ery charge, the jury was required to determine what
the defendant intended when he made the offer. Intent
is a question of fact, the determination of which should
stand unless the conclusion drawn by the trier is an
unreasonable one. . . . Moreover, the [jury is] not
bound to accept as true the defendant’s claim of lack
of intent or his explanation of why he lacked intent. . .
Intent may be and usually is inferred from conduct. Of
necessity, it must be proved by the statement or acts
of the person whose act is being scrutinized and ordi-
narily it can only be proved by circumstantial evidence.’’
(Citation omitted; internal quotation marks omitted.)
State v. Davis, 160 Conn. App. 251, 259, 124 A.3d 966,
cert. denied, 320 Conn. 901, 127 A.3d 185 (2015).
In the information, the state alleged that ‘‘on or about
May 12, 2007, in the town of Manchester, the defendant
conferred a benefit upon a witness to influence the
witness’ testimony in an official proceeding . . . .’’
According to the defendant, there was insufficient evi-
dence to establish that the benefit conferred on Stiles
on May 12, 2007, was performed with the specific intent
to influence Stiles’ 2009 testimony in the first habeas
trial. We disagree.
On December 6, 2006, Stiles gave a statement to the
defendant recanting her initial trial testimony. On May
12, 2007, the defendant bought Stiles a television and
service plan. Although Stiles’ December 6, 2006 recanta-
tion predated the gift of the television by approximately
five months, the jury reasonably could have concluded
that the defendant gave the television to Stiles with the
intent to influence her testimony at the first habeas trial
in 2009. Following the December 6, 2006 recantation,
the defendant continued to visit Stiles over the course
of the next ‘‘year, maybe more.’’ He drove her to visit
her mother or to doctor appointments, bought her
candy and pizza, and told her that she might be able
to obtain money depending on the outcome of the first
habeas trial. In addition to the television, the defendant
also gave Stiles money that she used to purchase a
stereo. He also helped her pay the rent when she lived
in a motel. During this time, the defendant told Stiles
that Taylor and Gould were trying to get a new trial,
and that he did not think they were guilty of Vega’s
murder. In discussing this case, the defendant made a
comment indicating that Visone and Tsimbidaros did
not want to know ‘‘the places we’ve had to go and the
things we’ve had to do . . . .’’
Once the first habeas trial ended the defendant no
longer visited Stiles. Stiles later told the police that
the defendant had ‘‘gotten inside [her] head’’ and had
convinced her that her prior testimony was wrong and
that she ‘‘didn’t see what she saw.’’ The defendant knew
that Stiles had given different accounts as to where she
was on the morning of the murder. Viewing the evidence
in the light most favorable to sustaining the verdict, we
conclude that the jury reasonably could have found that
the defendant purchased the television for Stiles to
ensure that she testified consistently with the December
6, 2006 recantation when she testified at the first habeas
trial. We conclude, therefore, that the evidence was
sufficient to convict the defendant on the charge of
bribery of a witness.16
B
The defendant next argues that the evidence was
insufficient to prove that he was guilty of the charge
of tampering with a witness in violation of § 53a-151
(a). That statute provides: ‘‘A person is guilty of tamper-
ing with a witness if, believing that an official proceed-
ing is pending or about to be instituted, he induces or
attempts to induce a witness to testify falsely, withhold
testimony, elude legal process summoning him to testify
or absent himself from any official proceeding.’’ General
Statutes § 53a-151 (a). ‘‘[T]he witness tampering statute
has two requirements: (1) the defendant believes that
an official proceeding is pending or about to be insti-
tuted; and (2) the defendant induces or attempts to
induce a witness to engage in the proscribed conduct.’’
State v. Ortiz, 312 Conn. 551, 562, 93 A.3d 1128 (2014).
‘‘The language of § 53a-151 plainly warns potential
perpetrators that the statute applies to any conduct
that is intended to prompt a witness to testify falsely
. . . in an official proceeding that the perpetrator
believes to be pending or imminent. . . . A defendant
is guilty of tampering with a witness if he intends that
his conduct directly cause a particular witness to testify
falsely . . . . So interpreted, § 53a-151 applies to con-
duct intentionally undertaken to undermine the veracity
of testimony given by a witness. . . . The statute
applies to successful as well as unsuccessful attempts to
induce a witness to render false testimony.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) State v. Carolina, 143 Conn. App. 438, 444, 69
A.3d 341, cert. denied, 310 Conn. 904, 75 A.3d 31 (2013).
In the information, the state alleged that ‘‘on diverse
dates . . . from May, 2007 through August, 2009, in the
town of Manchester, when he believed that an official
proceeding was pending, the defendant induced or
attempted to induce a witness to testify falsely in that
official proceeding . . . .’’ According to the defendant,
it is uncertain whether Stiles was truthful in 1993 and
1995 (when she gave statements and testified about
seeing Gould and Taylor at La Casa Green at the time
of Vega’s murder), or whether she was truthful in 2006,
2009 and 2013 (when she made statements and testified
that she had lied in 1993 and 1995, and was not present
and did not see Gould and Taylor at La Casa Green at
the time of Vega’s murder). The defendant argues that
he believes that Stiles lied in 1993 and 1995, when she
inculpated Gould and Taylor, and that she told the truth
in 2006, 2009 and 2013, when she exculpated Gould and
Taylor. Absent evidence that Stiles was truthful in 1993
and 1995, the defendant argues that the jury could not
reasonably have concluded that the defendant specifi-
cally intended and induced her to testify falsely in 2009.
We disagree.
The jury was presented with the following evidence
from which it reasonably could have concluded that
Stiles testified truthfully in 1993 and 1995, and that
the defendant induced Stiles to testify falsely in 2009.
Following Vega’s murder in 1993, Stiles gave two writ-
ten statements to the police in which she stated that
she was in the vicinity of the store at the time of the
murder, and she identified Gould and Taylor as the
individuals involved in the incident. She testified consis-
tently with these statements at the probable cause hear-
ing in 1993 and the criminal trial in 1995. Youmans
testified that she saw a woman with a limp in the vicinity
of the store on the morning of the murder. Stiles testified
at the criminal trial in 1995 that she has a disability in
her leg and cannot move quickly. After Gould and Taylor
were convicted in 1995, the defendant, who previously
had worked with the New Haven state’s attorney’s
office, visited Stiles in his capacity as an investigator
for Visone and Tsimbidaros, the attorneys for Gould
and Taylor in the first habeas action. After a very brief
conversation, the defendant stated: ‘‘[Y]ou really
weren’t there, were you?’’ In response to this question,
Stiles responded that she was not there and gave a
signed statement indicating that her prior statements
were untrue. The defendant then followed up with
weekly visits to Stiles in which he would give her gifts
and drive her to different locations. He also told her
that she might be able to obtain money in the future if
Gould and Taylor were successful in the habeas trial.17
On the basis of this evidence, the jury reasonably could
have concluded that the defendant induced or
attempted to induce Stiles to testify falsely at an offi-
cial proceeding.
In the second part of his claim that the evidence was
insufficient with regard to his conviction of tampering
with a witness, the defendant argues that a conviction
of tampering with a witness requires the same degree
of proof as that necessary to support a perjury convic-
tion, i.e., the ‘‘one-witness-plus-corroboration’’ rule, and
in this case, the evidence did not satisfy that standard.
The defendant acknowledges that his claim is unpre-
served and seeks to prevail pursuant to State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989); see In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015)
(modifying third prong of Golding); or, in the alterna-
tive, the plain error doctrine; Practice Book § 60-5; or
our supervisory authority over the administration of
justice. We disagree.
We first set forth the applicable standard of review.
‘‘Under Golding, a defendant may prevail on an unpre-
served claim only if the following conditions are met:
(1) the record is adequate to review the alleged claim
of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the
alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional viola-
tion beyond a reasonable doubt.’’ (Internal quotation
marks omitted.) State v. Tarver, 166 Conn. App. 304,
321, 141 A.3d 940, cert. denied, 323 Conn. 908, 150 A.3d
683 (2016).
According to the defendant, Golding review is war-
ranted because the record is adequate for review and
a claim of evidentiary insufficiency is of constitutional
magnitude alleging the violation of a fundamental right.
While we agree that ‘‘any defendant found guilty on the
basis of insufficient evidence has been deprived of a
constitutional right, and would therefore necessarily
meet the four prongs of Golding’’; (internal quotation
marks omitted) State v. Revels, 313 Conn. 762, 777, 99
A.3d 1130 (2014), cert. denied, U.S. , 135 S. Ct.
1451, 191 L. Ed. 2d 404 (2015); we disagree that the
defendant’s claim is one of evidentiary insufficiency.
The defendant, rather, is asking, for the first time on
appeal, that we impose the ‘‘one-witness-plus-corrobo-
ration’’ rule that is applicable to a charge of perjury and
apply it to his conviction of tampering with a witness.
The ‘‘one-witness-plus-corroboration’’ rule is not an
element of the crime of tampering with a witness for
purposes of a sufficiency of the evidence analysis.
‘‘[T]he two witness rule is a quantitative rule of evidence
which provides that a person may not be convicted of
perjury upon the testimony of a single witness as to
the falsity of the statement made. . . . Originally, the
rule required that in order to sustain a conviction for
perjury, the falsity of the defendant’s oath had to have
been proven by the sworn testimony of two or more
live witnesses. Over the years, however, the rule has
been modified to permit a conviction upon the sworn
testimony of one live witness if that testimony is sup-
ported by proof of corroborative circumstances, the so-
called one-witness-plus-corroboration rule. . . . It has
been said that [t]he rule of evidence in perjury cases
presents an almost unique exception to the general rule
that evidence which is sufficient to convince the jury
of the defendant’s guilt beyond a reasonable doubt is
sufficient to sustain a conviction.’’ (Citations omitted;
internal quotation marks omitted.) State v. Sanchez,
204 Conn. 472, 477, 528 A.2d 373 (1987).
In Sanchez, our Supreme Court specifically referred
to the two witness rule for perjury as a ‘‘quantitative
rule of evidence . . . .’’ Id.; see also United States v.
Koonce, 485 F.2d 374, 377 (8th Cir. 1973) (two witness
rule in perjury cases not constitutionally mandated). In
State v. Castillo, 121 Conn. App. 699, 712, 998 A.2d 177,
cert. denied, 297 Conn. 929, 998 A.2d 1196, cert. denied,
562 U.S. 1094, 131 S. Ct. 803, 178 L. Ed. 2d 537 (2010),
we declined to review the defendant’s claim that the
court improperly charged the jury with regard to the
two witness rule contained in General Statutes § 54-83,
which provides in relevant part that ‘‘[n]o person may
be convicted of any crime punishable by death . . .
without the testimony of at least two witnesses, or that
which is equivalent thereto.’’ In discussing that statute,
we stated that ‘‘§ 54-83 is a statutory enactment that
prescribes the nature of the evidence that the state
must adduce to prove its case. Unlike the reasonable
doubt rule . . . the evidentiary burden imposed by
§ 54-83 is not constitutionally compelled.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Castillo, supra, 712. On the basis of the foregoing, we
conclude that the defendant’s unpreserved claim that
the ‘‘one-witness-plus-corroboration’’ rule should apply
to his conviction of tampering with a witness is not of
constitutional magnitude and, therefore, is not review-
able pursuant to a sufficiency of the evidence analysis.
Finally, even if we were to review the defendant’s
claim and conclude that the ‘‘one-witness-plus-corrobo-
ration’’ rule is applicable to this case, the state presented
sufficient evidence of corroboration for the jury reason-
ably to conclude that the defendant induced or
attempted to induce Stiles to testify falsely at the first
habeas trial. The testimony from Youmans and Boyd
supported a finding that Stiles was in the vicinity of
the store on the morning of the murder in 1993. Stiles
maintained, until after Gould’s and Taylor’s criminal
trial in 1995, that she had been at that location. On
December 6, 2006, the defendant stated to her: ‘‘[Y]ou
really weren’t there, were you?’’ In addition to the testi-
mony from Stiles regarding the defendant’s visits with
her, the jury heard evidence that the defendant pur-
chased a television for her and gave her money to pur-
chase a stereo.18 In addition to Stiles’ testimony that
the defendant had told her that she might be able to
obtain money if Gould and Taylor were successful in
the habeas trial, the parties stipulated that on March
18, 2011, after the favorable ruling in the first habeas
trial, Tsimbidaros filed a claim for compensation with
the state Office of the Claims Commissioner on behalf
of Gould and Taylor. Finally, the jury heard evidence
that the defendant made a comment indicating that
Visone and Tsimbidaros did not want to know ‘‘the
places we’ve had to go and the things we’ve had to do’’
regarding this case.
On the basis of the foregoing, and applying the appli-
cable standard of review, we conclude that the evidence
was sufficient to convict the defendant on the charge
of tampering with a witness.19
II
The defendant next claims that the court erred in
denying his motion to set aside the guilty verdict as
against the weight of the evidence. According to the
defendant, the evidence in this case was highly confus-
ing, due in large part to the state’s selective presentation
of evidence and its reliance on statements admitted
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).20 We disagree.
‘‘The proper appellate standard of review when con-
sidering the action of a trial court granting or denying
a motion to set aside a verdict and a motion for a
new trial is the abuse of discretion standard. . . . In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling. . . .
Reversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done. . . . We do not . . . determine whether a con-
clusion different from the one reached could have been
reached. . . . A verdict must stand if it is one that a
jury reasonably could have returned and the trial court
has accepted.’’ (Citation omitted; internal quotation
marks omitted.) State v. Fred C., 167 Conn. App. 600,
606, 142 A.3d 1258, cert. denied, 323 Conn. 921, 150
A.3d 1150 (2016).
‘‘As we repeatedly have emphasized, the trial court
is uniquely situated to entertain a motion to set aside
a verdict as against the weight of the evidence because,
unlike an appellate court, the trial [court] has had the
same opportunity as the jury to view the witnesses, to
assess their credibility and to determine the weight that
should be given to their evidence. . . . Indeed, we have
observed that, [i]n passing upon a motion to set aside
a verdict, the trial judge must do just what every juror
ought to do in arriving at a verdict. . . . [T]he trial
judge can gauge the tenor of the trial, as we, on the
written record cannot, and can detect those factors, if
any, that could improperly have influenced the jury.’’
(Internal quotation marks omitted.) State v. Scott C.,
120 Conn. App. 26, 38, 990 A.2d 1252, cert. denied, 297
Conn. 913, 995 A.2d 956 (2010).
The defendant’s primary argument is that the state
presented evidence in a one-sided manner in order to
establish that Stiles’ original version of the events was
truthful. The defendant points out that the state offered
into evidence Stiles’ initial statement to the police,
dated July 29, 1993, a redacted transcript of Stiles’ Octo-
ber 14, 1993 testimony at the hearing in probable cause
and a redacted transcript of her January 19, 1995 crimi-
nal trial testimony. The state also provided a three and
one-half hour videotape of Stiles’ criminal trial testi-
mony. The transcription of Stiles’ initial recantation on
December 6, 2006, however, was marked as an exhibit
for identification only, and Stiles’ 2009 habeas trial testi-
mony never was placed into evidence. According to the
defendant, this resulted in the jury’s returning a guilty
verdict without having had access to highly relevant
and material information. Citing State v. Chin Lung,
106 Conn. 701, 704, 139 A. 91 (1927), the defendant
contends that the verdict should be set aside because
the jury was ‘‘influenced by lack of knowledge or under-
standing . . . .’’ (Emphasis omitted; internal quotation
marks omitted.) In support of this claim, the defendant
argues that the trial became ‘‘a trial within a trial within
a trial . . . .’’ (Internal quotation marks omitted.) On
the contrary, a central question before the jury was
whether it should credit Stiles’ recantation of her origi-
nal testimony and statements.
Stiles’ 2006 statement was marked as a defense
exhibit for identification. The defendant did not seek
to have this statement admitted as a full exhibit during
Stiles’ testimony; he did, however, cross-examine John
M. Waddock, a supervisory assistant state’s attorney in
the New Haven state’s attorney’s office, with regard to
the statement.21 Stiles’ 2009 habeas testimony appears
to be consistent with her testimony at the defendant’s
trial, and the defendant has not pointed to any authority
requiring the state to offer and the court to admit the
2009 habeas trial testimony under those circum-
stances.22
The defendant also contends that confusion may have
arisen as a result of the court’s charge concerning its
consideration of Stiles’ previous statements. Specifi-
cally, the court charged that Stiles’ 1993 statement to
the police, her 1993 testimony at the hearing in probable
cause and her 1995 criminal trial testimony could be
considered for credibility and substantive purposes; her
statement to the police in 2011 recanting the previous
recantation that she made to the defendant in 2006
could be considered only for credibility purposes.23
‘‘The jury [is] presumed to follow the court’s directions
in the absence of a clear indication to the contrary.’’
(Internal quotation marks omitted.) State v. Fernandez,
169 Conn. App. 855, 870, 153 A.3d 53 (2016). The record
reflects that the court marked the jury charge as an
exhibit and provided that exhibit to the jury for its use
during deliberations. We note that during its delibera-
tions, the jury did not send any notes to the court indi-
cating that it was confused by this charge. The only
notes from the jury pertained to evidence of audiotapes
alleged to have been made of Youmans.24
On the basis of the foregoing, we cannot conclude
that the court abused its discretion in denying the defen-
dant’s motion to set aside the verdict.
III
The defendant next argues that the court, when
instructing the jury regarding the elements of tampering
with a witness, erred in failing to instruct the jury
regarding the ‘‘one-witness-plus-corroboration’’ rule
adopted for perjury prosecutions in State v. Sanchez,
supra, 204 Conn. 472. According to the defendant,
whether the corroboration rule is viewed as an ‘‘ele-
ment’’ of the crime or as the ‘‘quantum of evidence’’
required to prove falsity, the failure to give the instruc-
tion had the same harmful effect and clearly contributed
to the verdict. The defendant concedes that this instruc-
tional claim was not preserved at trial, but requests that
we consider it pursuant to the plain error doctrine;
Practice Book § 60-5; or our supervisory authority over
the administration of justice.25 We conclude, in accor-
dance with our discussion of the ‘‘one-witness-plus-
corroboration’’ rule in the defendant’s sufficiency of
the evidence claim, that the defendant cannot prevail
on this related instructional claim.
The court properly charged the jury regarding the
elements of tampering with a witness. The court further
instructed that ‘‘[i]f you think a witness has deliberately
testified falsely, you should carefully consider whether
you should rely on . . . any part of that witness’ testi-
mony.’’26 As we stated in part I B of this opinion, even
if we assume that the ‘‘one-witness-plus-corroboration’’
rule applies to this case, the state presented sufficient
evidence of corroboration for the jury reasonably to
conclude that the defendant induced or attempted to
induce Stiles to testify falsely at the first habeas trial.
As pointed out by the state, evidence of the defendant’s
intent to induce Stiles’ false testimony came from multi-
ple sources, all of which corroborated each other. In
particular, the defendant’s statement indicating that
Visone and Tsimbidaros did not want to know ‘‘the
places we’ve had to go and the things we’ve had to
do’’ regarding this case provides corroboration that the
defendant was attempting to induce Stiles to testify
falsely at the first habeas trial. Accordingly, we con-
clude that the court’s failure to charge the jury regarding
the ‘‘one-witness-plus-corroboration’’ rule was not plain
error requiring reversal of the judgment. This is not a
case in which ‘‘the existence of the error is so obvious
that it affects the fairness of and public confidence
in the judicial proceedings.’’ (Internal quotation marks
omitted.) State v. Jamison, 320 Conn. 589, 595–96, 134
A.3d 560 (2016). Similarly, we decline to exercise our
supervisory authority over the administration of justice
to require that the Sanchez corroboration instruction
be given in cases such as the present case.
IV
The defendant next argues that the court erred in
refusing the defense request to have Stiles testify in a
proffer, outside the presence of the jury. According to
the defendant, the denial of that request allowed the
prosecution to elicit, in the presence of the jury, Stiles’
invocation of the fifth amendment.
The following additional facts are relevant to our
resolution of this claim. On the second day of trial, the
state indicated its intent to interrupt Bannon’s testi-
mony in order to call Stiles to the witness stand. The
defendant objected and, during the discussion that fol-
lowed, argued that the state did not know what the
substance of Stiles’ testimony would be.27 Thereafter,
the state interrupted Bannon’s testimony to call Stiles.
Outside the presence of the jury, the defendant argued
that Stiles had ‘‘an unusual relationship with the truth
and may or may not recall things the same way twice
from moment to moment . . . .’’ The defendant under-
stood, however, that it was Stiles’ ‘‘present intent . . .
to take the [witness] stand and testify that the truth is
what she said in 2009 . . . and that her testimony in
[1995] was untruthful.’’ The defendant argued that the
state was offering Stiles’ testimony solely for the pur-
pose of thereafter impeaching her with a prior inconsis-
tent statement under State v. Whelan, supra, 200 Conn.
753, which was improper. The defendant renewed his
claim that the state did not know what Stiles was going
to say, but argued that it ‘‘[doesn’t] matter what she
says. The state simply wants her up there as a warm
pulse, which will either agree with them in its theory
of this case or disagree, in which case it will seek to
offer her prior inconsistent testimony.’’
The defendant noted that the state was prepared to
immunize Stiles and asked the court to advise Stiles
with regard to her fifth amendment rights. The court
declined to do so, noting that Stiles had her own attor-
ney who was present in court, and had counsel when
she invoked the fifth amendment in the second habeas
trial. The defendant then asked that Stiles ‘‘testify . . .
by way of proffer outside the jury’s presence’’ because
the state did not know what she was going to say and
could not offer her testimony solely for the purpose of
impeaching her. The court responded by noting that
Stiles had testified inconsistently in the prior proceed-
ings, making it difficult to have ‘‘great confidence’’ in
the substance of Stiles’ testimony.28 The defendant then
moved for a mistrial, arguing that the state had ‘‘made
no proffer, nor can [it] make a proffer of what this
witness will say . . . .’’ During the ensuing discussion,
the court ‘‘anticipated that [Stiles was] going to take
the fifth amendment when she [took] the witness stand
. . . and be granted immunity and only then testify, and
she’s testified in a contradictory fashion on previous
occasions.’’ The state subsequently declined to make a
proffer, noting that the defense was ‘‘not entitled to a
preview of each witness’’ and that Stiles had been ‘‘so
contaminated, so tampered with, bribed, pushed by this
defendant, that’s why we’re bringing these charges.’’
Ultimately, the court denied the motion for a mistrial.
William Paetzold, Stiles’ attorney, then introduced
himself and represented that Stiles was going to assert
her fifth amendment right. Paetzold inquired about what
procedure would be followed for her to do so, and the
court instructed that it needed to be done in the pres-
ence of the jury and in response to specific questions.
There was no objection to that procedure. The parties
agreed that Paetzold could stand behind Stiles, who
was in a wheelchair, until the fifth amendment issues
were resolved. In the presence of the jury, the state
then called Stiles as a witness. After some preliminary
questions, the prosecutor asked Stiles to explain ‘‘how
it was that [she] personally became involved in the
criminal investigation [pertaining to] Mr. Vega.’’ At that
point, Paetzold interrupted and stated that he was advis-
ing Stiles to invoke her fifth amendment right concern-
ing the specifics of her involvement in the case. The
court asked Stiles if she was invoking her fifth amend-
ment right and Stiles answered affirmatively. The prose-
cutor then immunized Stiles pursuant to General
Statutes § 54-47a (1). The defendant inquired whether
the immunity pertained to federal as well as state prose-
cution. After addressing the defendant’s concern, the
court noted that Stiles had counsel, and, as the defen-
dant was not making an objection, the state could pro-
ceed. The state finished its direct examination, and the
defendant cross-examined Stiles without Stiles invok-
ing her fifth amendment right again.
According to the defendant, the court committed evi-
dentiary trial error when it refused his request to have
Stiles testify, initially, by way of a proffer outside the
jury’s presence. The defendant argues that this ruling
allowed the state to strengthen its case by means of an
inference arising from Stiles’ invocation of the privilege
in the jury’s presence. The state counters that the defen-
dant’s unpreserved evidentiary claim should not be
reviewed. If reviewed, the state argues, that the defen-
dant cannot prevail because allowing this testimony
was neither erroneous nor harmful. We will review this
claim but agree with the state that the defendant cannot
prevail on the merits of this claim.
We initially note that the defendant’s claim that the
court improperly allowed Stiles to invoke her fifth
amendment privilege in the presence of the jury is a
claim of evidentiary trial error. State v. Dennison, 220
Conn. 652, 661, 600 A.2d 1343 (1991). Thus, ‘‘the claim
is reviewable under the standard of harmless error
applicable to nonconstitutional claims . . . and the
defendant bears the burden of establishing that the trial
court’s erroneous ruling was harmful to him in that it
probably affected the outcome of the trial.’’ (Citation
omitted.) Id.
According to the state, the defendant argued at trial
that the court should have granted his request for a
testimonial proffer to determine which version of Stiles’
prior testimony she was going to set forth; on appeal,
however, he argues that it was to prevent Stiles from
invoking her fifth amendment right in the presence of
the jury. Because the articulated basis for the request
at trial differs from the argument raised on appeal, the
state argues that we should decline to review this claim.
Although ‘‘we will not review a claim unless it was
distinctly raised at trial . . . we 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.’’
(Citations omitted.) Crawford v. Commissioner of Cor-
rection, 294 Conn. 165, 203, 982 A.2d 620 (2009). In the
present case, although the specific argument in support
of the defendant’s request for a proffer differs from
the argument raised at trial, we conclude that we may
review it, as it is subsumed within or intertwined with
the claim raised in the trial court.
Turning to the merits of this claim, ‘‘[i]t is widely
held that it is improper to permit a witness to claim
a testimonial privilege in front of the jury where the
witness’s intention not to testify is known beforehand.
. . . Our appellate courts follow that general rule. Our
Supreme Court has stated [that] . . . [i]t is firmly
established that [n]either [the state nor the defendant]
has the right to benefit from any inferences the jury
may draw simply from the witness’ assertion of the
privilege either alone or in conjunction with questions
that have been put to him. . . . The rule is grounded
not only in the constitutional notion that guilt may not
be inferred from the exercise of the Fifth Amendment
privilege but also in the danger that a witness’s invoking
the Fifth Amendment in the presence of the jury will
have a disproportionate impact on their deliberations.
The jury may think it high courtroom drama of probative
significance when a witness takes the Fifth. In reality
the probative value of the event is almost entirely under-
cut by the absence of any requirement that the witness
justify his fear of incrimination and by the fact that it
is a form of evidence not subject to cross-examination.
. . . Accordingly, we have held that a witness may not
be called to the stand in the presence of the jury merely
for the purpose of invoking his privilege against self-
incrimination. . . . Such testimony is not relevant, and
could be prejudicial.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Iverson, 48 Conn. App.
168, 173–74, 708 A.2d 615, cert. denied, 244 Conn. 930,
711 A.2d 728 (1998).
‘‘In Namet [v. United States, 373 U.S. 179, 186–87, 83
S. Ct. 1151, 10 L. Ed. 2d 278 (1963)], the United States
Supreme Court identified two areas where prejudice
can occur. First, some courts have indicated that error
may be based upon a concept of prosecutorial miscon-
duct, when the Government makes a conscious and
flagrant attempt to build its case out of inferences aris-
ing from use of the testimonial privilege. . . . A second
theory seems to rest upon the conclusion that, in the
circumstances of a given case, inferences from a wit-
ness’ refusal to answer added critical weight to the
prosecution’s case in a form not subject to cross-exami-
nation, and thus unfairly prejudiced the defendant.’’
(Citations omitted; internal quotation marks omitted.)
State v. Dennison, supra, 220 Conn. 661–62. ‘‘[I]n order
to determine whether the ruling of the trial court was
prejudicial, we must consider the invocation of the priv-
ilege in response to the specific questions in the context
and circumstances of the case.’’ Id., 662.
With regard to the first area mentioned in Namet,
the defendant argues that although the state had every
reason to believe that Stiles would invoke her fifth
amendment privilege, it resisted the defendant’s efforts
to obtain a testimonial proffer outside the presence of
the jury. According to the defendant, this is a strong
indication that the state wanted the jury to see Stiles
invoke the privilege before she was given immunity.
The record, however, reveals that the parties and the
court assumed that Stiles would invoke the privilege,
and that the state would immunize her. The state
objected to the defendant’s request for a proffer on the
ground that the defendant was not entitled to ‘‘a preview
of each witness . . . .’’ The state did not attempt to
build its case out of inferences arising from the privi-
lege, and it did not advocate for Stiles to invoke the
privilege in the jury’s presence. See Namet v. United
States, supra, 373 U.S. 189 (prosecution’s ‘‘few lapses’’
in asking questions held to be privileged did not amount
to ‘‘planned or deliberate attempts by the Government
to make capital out of witnesses’ refusals to testify’’
particularly when ‘‘defense counsel not only failed to
object on behalf of the defendant, but in many instances
actually acquiesced in the procedure as soon as the
rights of the witnesses were secured’’); United States
v. Puntillo, 440 F.2d 540, 543 (7th Cir. 1971) (The United
States Court of Appeals for the Seventh Circuit con-
cluded that ‘‘[t]he prosecution made no conscious or
flagrant attempt to bolster its case as the result of the
invocation by the witness of his testimonial privilege.
In fact, it was the judge who insisted that a record of
the witness’ refusal to testify be made in the jury’s
presence.’’). With regard to the second area set forth
in Namet, we note that after Stiles invoked her fifth
amendment privilege and received immunity, she con-
tinued her testimony, and the defendant had the oppor-
tunity for cross-examination. See Namet v. United
States, supra, 189 (indicating that ‘‘[t]he effect of these
questions was minimized by the lengthy nonprivileged
testimony’’ given by the witnesses).
We disagree with the defendant that allowing Stiles
to invoke the privilege in front of the jury permitted
the jury to conclude that she was a recalcitrant or
obstructionist witness who would not testify unless
given immunity. On the contrary, the jury had already
heard evidence indicating that Stiles had given conflict-
ing testimony on prior occasions and that she had
invoked the fifth amendment privilege in the second
habeas trial. We likewise disagree with the defendant’s
contention that the invocation permitted the jury to
infer that there was a direct connection between Stiles’
possible criminal conduct and the defendant’s possible
criminal conduct. Contrary to the defendant’s claim,
the jury reasonably could infer that Stiles, who was
represented by counsel, invoked the privilege to protect
herself from criminal prosecution and not because she
was connected to the defendant.
Accordingly, because the defendant has not estab-
lished that the trial court committed evidentiary error,
he cannot prevail on this claim.
V
The defendant’s final claim is that the court erred
in quashing the defense subpoena for information and
materials related to the witness protection program.
We disagree.
The following facts are necessary for the resolution
of this claim. Prior to the commencement of trial, the
defendant filed a subpoena, directed to the Office of
the Chief State’s Attorney, asking for ‘‘[r]ecords of the
Witness Protection Program; including number of wit-
ness[es] who applied to Program, number of witnesses
admitted; terms of acceptance; cost of each witnesses’
participation; moneys paid to or on behalf of witnesses;
whether any such witnesses or state agents were prose-
cuted for crimes against the administration of justice
in connection with Witness Protection Program activi-
ties.’’ The defendant also filed an ‘‘omnibus motion for
further discovery, selective prosecution hearing, and
dismissal.’’29 The state filed a motion to quash the sub-
poena on the grounds that it was overly broad, sought
documents that were not relevant, and sought to compel
the production of documents that included privileged
and sensitive information. The defendant filed an objec-
tion to the state’s motion to quash.
On September 18, 2013, the court heard arguments
on the defendant’s omnibus motion and the state’s
motion to quash. The defendant argued that the prose-
cution of the defendant reflected ‘‘a vindictive reaction
by the state to a defense team that embarrassed the
state’’ and contended that what the defense team did
was not ‘‘materially different’’ from what the state does
in the witness protection program, yet the defendant
was being prosecuted for his conduct. The defendant
argued that he wanted all records of the witness protec-
tion program and indicated that he did not see a security
issue, as the court could order him not to disclose the
information that he received to anyone.30 In response,
the state argued that because every person accepted
into the witness protection program was different, there
was no ‘‘certain threshold or certain type of blanket
form that is filled out and submitted in order for some-
one to be accepted.’’ Instead, these cases are handled
on a case-by-case basis considering ‘‘what the situation
is, what the danger is, what types of resources these
individuals have that they can continue to rely on if, in
fact, they’re accepted into the program.’’
At the conclusion of the hearing, the court denied
the defendant’s omnibus motion in its entirety, granted
the state’s motion to quash, and overruled the defen-
dant’s objection to the state’s motion to quash. In its
ruling, the court first concluded that the evidence pre-
sented by the defendant did not justify an evidentiary
hearing on the selective prosecution claim, and, since
the threshold for an evidentiary hearing was not satis-
fied, the claim of selective prosecution also failed on
the merits. In rejecting the defendant’s claim that he had
been singled out, the court disagreed with his attempt to
analogize the present case to the witness protection
program.31 The court further found that the ‘‘defendant’s
unsupported assertions [did] not suffice to demonstrate
that the defendant [was] the victim of invidious discrim-
ination based on impermissible considerations.’’ With
regard to the motion to quash, the court concluded that
the information sought fell within the ‘‘prosecutorial
privilege’’ and that, given the purpose of the witness
protection program, i.e., the protection of witnesses,
and the court’s reasoning in addressing the selective
prosecution claim, the defendant had failed to demon-
strate good cause for the release of the requested infor-
mation. See Practice Book § 40-12.
On appeal, the defendant argues that the court erred
in quashing the subpoena, thereby impairing his state
and federal constitutional rights to present a defense,
including a selective prosecution claim. The defendant
contends that the subpoena was ‘‘sufficiently particular-
ized so that the documents sought may be readily identi-
fied’’; Three S. Development Co. v. Santore, 193 Conn.
174, 179, 474 A.2d 795 (1984); and that the materials
were ‘‘ ‘highly relevant’ ’’ to his selective prosecution
claim, which was part of his defense. See State v.
DeCaro, 252 Conn. 229, 258, 745 A.2d 800 (2000). With-
out the information regarding the witness protection
program, the defendant contends, he was not in a posi-
tion to make the prima facie showing that is necessary
to obtain an evidentiary hearing on a selective prosecu-
tion claim.32
We begin by noting that the standard of review appli-
cable to the granting of a motion to quash and the denial
of a request for an evidentiary hearing to prove selective
prosecution is abuse of discretion. See State v. Colon,
272 Conn. 106, 265, 864 A.2d 666 (2004), cert. denied,
546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005);
State v. Perez, 82 Conn. App. 100, 109, 842 A.2d 1187,
cert. denied, 269 Conn. 904, 852 A.2d 734 (2004).
‘‘In cases in which the defense of selective prosecu-
tion has been asserted . . . the defendant must prove
(1) that others similarly situated have generally not
been prosecuted and that he has been singled out and
(2) that he is the victim of invidious discrimination
based on impermissible considerations such as race,
religion, or the exercise of a constitutionally protected
right.’’ (Internal quotation marks omitted.) State v.
Payne, 100 Conn. App. 13, 19, 917 A.2d 43, cert. denied,
282 Conn. 914, 924 A.2d 139 (2007). ‘‘[A]n evidentiary
hearing to prove selective prosecution is not a matter
of right and is not available to every defendant, but
rather is to be granted at the discretion of the trial court
following a prima facie showing by the defendant that
a legitimate claim exists with regard to both prongs
of the selective prosecution test.’’ (Internal quotation
marks omitted.) Id., 20.
‘‘To warrant discovery [or an evidentiary hearing]
with respect to a claim of selective prosecution, a defen-
dant must present at least some evidence tending to
show the existence of the essential elements of the
defense . . . . Mere assertions and generalized prof-
fers on information and belief are insufficient. . . .
[T]o engage in a collateral inquiry respecting prosecu-
torial motive, there must be more than mere suspicion
or surmise. If a judicial inquiry into the government’s
motive for prosecuting could be launched without an
adequate factual showing of impropriety, it would lead
far too frequently to judicial intrusion on the power of
the executive branch to make prosecutorial decisions.
Unwarranted judicial inquiries would also undermine
the strong public policy that resolution of criminal cases
not be unduly delayed by litigation over collateral mat-
ters. . . . When a request for an evidentiary hearing
and a motion to dismiss on the basis of a defense of
selective prosecution are rooted in mere speculative
and unduly myopic assertions, a trial court does not
abuse its discretion in denying an evidentiary hearing
and motion to dismiss. . . . Furthermore, because the
amount of evidence needed to support a selective prose-
cution claim on the merits is greater than that which
justifies an evidentiary hearing, it necessarily follows
that, when an evidentiary hearing is not warranted,
a defendant’s merits claim must also fail.’’ (Citations
omitted; internal quotation marks omitted.) Id., 20–21.
In the present case, the defendant presented no evi-
dence that he was similarly situated to the individuals
who administer the witness protection program.
Although the defendant argued that his conduct was
not materially different from the services that the state
provides for witnesses in the witness protection pro-
gram, that program is actually intended to protect wit-
nesses from harm for having testified against a
defendant. General Statutes § 54-82t.33 As discussed pre-
viously, the bribery and tampering offenses with which
the defendant was charged involved altering testimony
or inducing false testimony from a witness. The defen-
dant’s subpoena, therefore, was overly broad in that it
sought records regarding all benefits provided by the
witness protection program, rather than records sup-
porting a claim that benefits had been provided with
the intent to alter testimony or induce false testimony.
See State v. Montgomery, 254 Conn. 694, 728, 759 A.2d
995 (2000) (‘‘[i]f the subpoena on its face is too broad
and sweeping, it is subject to a motion to quash’’ [inter-
nal quotation marks omitted]). In addition, the sub-
poena sought information that is protected from
disclosure by the witness protection statute. See Gen-
eral Statutes § 54-82t (j).34 On the basis of the foregoing,
we conclude that the court did not abuse its discretion
in granting the state’s motion to quash the subpoena.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The jury reasonably could have found that Youmans’ description of the
woman matched the appearance of a woman named Doreen Stiles.
2
The statement provides: ‘‘I was walking toward the store at-on Grand
Avenue when I happened to see a black male, heavy set, come across the
street and enter the store, and he frightened me, so I—I hid next door
between the store and the alleyway of the barber shop, and while I was
there I heard some arguing going on and I heard one of the, uh, black guys
ask Mr. Vega for money and for him to open the safe, and then I heard a
shot, a gun-shot. I—I panicked and got scared and I tried to—to leave, and
when I turned, ya know, I got up from where I was and tried to go the
opposite way, I saw two black males leave the store and after that I don’t
know what happened, which way they went or what happened after that.’’
3
Stiles suffered from health problems at the time of the criminal trial and
her testimony was videotaped while she was in a hospital.
4
Gould and Taylor were acquitted of murder in violation of General Stat-
utes § 53a-54a (a).
5
Our Supreme Court ordered that Taylor’s conviction of attempt to commit
robbery in the first degree and robbery in the first degree be merged, and
that the sentence on the conviction of attempt to commit robbery in the
first degree be vacated. State v. Gould, 241 Conn. 1, 5, 695 A.2d 1022 (1997).
6
Stiles described her initial encounter with the defendant as follows:
‘‘Well, he sat down and he said I’ve been working on this case a long time.
He said he knows that, you know, there was no possible way that I could
have been there because of something about a time difference with me
regarding another witness; that if I had been there she would have seen
me, and I guess she might have stated she didn’t see me—I don’t know—
or whatever. It just was going on like that. And it was only, like, a few
minutes, and then he asked me, he said, you really weren’t there, were you?
And I said, no.’’
7
Stiles testified as follows:
‘‘Q. Did . . . the defendant in this case, ever promise you future money,
money in the future?
‘‘A. Yes.
‘‘Q. Could you tell us about that, please?
‘‘A. Well, he told me that it depended [on] what happened with the trial.
‘‘Q. And what—what did you understand him to mean by that?
‘‘A. I understood it to mean that if Ronald [Taylor] and George [Gould]
got out of jail that they might get some money, and they might—look, you
know, in a way, like, kind of help me out if I needed some money.
‘‘Q. Okay. Did you know where that money might come from? If they
were going to get money, where would it come from?
‘‘A. I don’t know. I guess they might sue the state for being incarcerated.’’
8
Stiles later testified that the defendant paid her rent for several months
prior to the 2009 habeas trial.
9
At the defendant’s trial in 2013, Stiles testified that she lied in 1993
because, at that time, she was a drug user with no place to live and life
was very hard. After the police picked her up, she testified, she was at the
police station for so long that she started going through withdrawal, and
the police purchased drugs, clothes and food for her, making it easy for her
to continue with the lie. She further indicated that she changed her testimony
in 2009 because she ‘‘had a chance to make right what [she] did wrong
then,’’ and she denied that the defendant had convinced her to change her
testimony. At the defendant’s trial in 2013, Stiles also testified that she was
not outside La Casa Green on the morning of July 4, 1993, and did not see
Taylor and Gould at that time.
10
The habeas court rejected the claim of ineffective assistance of counsel,
which also was raised in the habeas petition.
11
The Supreme Court concluded that the habeas court improperly failed
to recognize that, under the test set forth in Miller v. Commissioner of
Correction, 242 Conn. 745, 700 A.2d 1108 (1997), actual innocence required
affirmative evidence that Taylor and Gould did not commit the crimes of
which they were convicted, not simply the discrediting of evidence on which
the conviction rested. Gould v. Commissioner of Correction, 301 Conn. 544,
546–47, 22 A.3d 1196 (2011).
12
John H. Bannon, Jr., an inspector with the chief state’s attorney’s office,
testified that the reason Coppola and Rodriguez went to see Stiles before
the Supreme Court decision reversing the first habeas court judgment was
because Michael E. O’Hare, the senior assistant state’s attorney who handled
the first habeas appeal, ‘‘was quite confident that the Supreme Court would
overturn the ruling in [the first] habeas [trial] and remand it for a second
habeas trial.’’
13
Stiles also indicated that the defendant told her not to worry, and that
as long as she told the truth everything would work out.
14
On September 15, 2015, this court affirmed the judgment of the second
habeas court. Gould v. Commissioner of Correction, 159 Conn. App. 860,
123 A.3d 1259, cert. denied, 319 Conn. 957, 125 A.3d 1012 (2015).
15
The court granted the defendant’s motion for a judgment of acquittal
as to one of the counts of tampering with a witness, and the jury found the
defendant not guilty of the two perjury counts.
16
The defendant points out that Stiles testified at his criminal trial that
he did not convince her to change her testimony in the first habeas trial.
Citing Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979), the
defendant contends that although it was the province of the jury to accept
or reject Stiles’ testimony, the jury in rejecting such testimony ‘‘cannot
conclude that the opposite is true.’’ (Internal quotation marks omitted.) The
evidence was sufficient to convict the defendant of bribery of a witness,
however, without the jury necessarily believing the opposite of Stiles’ testi-
mony. Rather, the jury could infer, on the basis of the evidence presented,
that the defendant told Stiles that he believed her trial testimony was false
and that the defendant then followed up with positive reinforcement for
her recantation. The jury reasonably could infer that Stiles recanted in
order to curry favor with the defendant, who told Stiles what he thought
of her testimony.
17
The defendant’s conduct toward Stiles was similar to his conduct toward
Youmans and Boyd. Youmans testified that the defendant had ‘‘stalked’’ her.
Boyd testified that several years after she had testified in the criminal trial,
the defendant located her and told her that he wanted to reopen the case.
The defendant met with her on seven or eight occasions and would some-
times give her $20 for pizza. The jury was instructed that the evidence of
cash gifts to Boyd was admitted ‘‘solely to show or establish a common
plan or scheme to bribe and/or tamper with witnesses and may be used
only for that purpose.’’
18
On the basis of his investigation, Bannon was able to determine that
the defendant purchased the television on May 12, 2007. He was unable to
determine when and by whom the stereo was purchased.
19
We similarly decline to reverse the defendant’s conviction under our
inherent supervisory authority over the administration of justice or under the
plain error doctrine on the ground that the ‘‘one-witness-plus-corroboration’’
rule should apply to this case.
20
‘‘In State v. Whelan, supra, 200 Conn. 753 . . . we adopted a hearsay
exception allowing the substantive use of prior written inconsistent state-
ments, signed by the declarant, who has personal knowledge of the facts
stated, when the declarant testifies at trial and is subject to cross-examina-
tion. This rule has also been codified in § 8-5 (1) of the Connecticut Code
of Evidence, which incorporates all of the developments and clarifications
of the Whelan rule that have occurred since Whelan was decided.’’ (Internal
quotation marks omitted.) State v. Bennett, 324 Conn. 744, 768–69, 155 A.3d
188 (2017).
21
The state objected to the defendant’s cross-examination of Waddock
on the ground that Stiles’ 2006 statement was not in evidence and that the
defendant was attempting to get it before the jury by reading from it.
22
Section 8-6 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule if the declarant
is unavailable as a witness: (1) Former testimony. Testimony given as a
witness at another hearing of the same or a different proceeding, provided
(A) the issues in the former hearing are the same or substantially similar
to those in the hearing in which the testimony is being offered, and (B) the
party against whom the testimony is now offered had an opportunity to
develop the testimony in the former hearing.’’ (Emphasis added.)
In the present case, Stiles was available and testified at the defendant’s
trial.
23
The court charged as follows: ‘‘Testimony has been presented that
Doreen Stiles made a statement out of court inconsistent with her testimony
at this trial. That on July 6, 2011, to [Detective] Sergeant [Tony] Reyes and
[to Detective Alberto Matthew] Merced, she renounced her 2009 recantation
of her 1995 testimony. You should consider this evidence only as it relates
to the credibility of her testimony, not as substantive testimony. In other
words, consider this evidence as you would any other evidence of inconsis-
tent conduct in determining the weight to be given to the testimony of
Doreen Stiles in this courtroom.
‘‘Also in evidence as exhibits are prior statements of Ms. Stiles, specifically
exhibits 17, 28 and 30. To the extent you find such statements inconsistent
with her trial testimony here, you may give such inconsistency the weight
to which you feel it is entitled in determining her credibility here in court.
You may also use exhibits 17, 28 and 30 for the truth of their content and
find facts from them. Remember, however, that you may not use [Detective]
Merced’s testimony as to Doreen Stiles’ statement of July 6, 2011, for the
truth of its content or find facts from it.’’
24
We also note that prior to trial, the court inquired whether counsel
would like the jurors to be able to take notes. Counsel for the defendant
indicated that he preferred they not take notes. Subsequently, following
cross-examination of Waddock, the jury sent a note to the court requesting
notepads and pens to take notes. Counsel for the defendant expressed
concern that to do so at that point in the trial could cause the jury to place
more emphasis on what came after Waddock’s testimony. The court declined
to provide the notepads and pens at that stage of the proceedings.
25
The defendant initially requested that we review this claim pursuant to
State v. Golding, supra, 213 Conn. 239–40, the plain error rule; Practice
Book § 60-5; and our supervisory authority over the administration of justice.
The state responded that because the defendant had waived this claim
pursuant to State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), this claim
failed to satisfy the third prong of Golding. In his reply brief, the defendant
acknowledged that in State v. Bellamy, 323 Conn. 400, 403, 147 A.3d 655
(2016), our Supreme Court reaffirmed the validity of the Kitchens waiver
rule. He also conceded that, in light of the fact that the ‘‘one-witness-plus-
corroboration’’ rule enunciated in State v. Sanchez, supra, 204 Conn. 472,
is a ‘‘quantitative rule of evidence’’; id., 477; rather than an essential element
of the crime that would implicate constitutional considerations, his instruc-
tional claim did not qualify for Golding review. Although not reviewable
under Golding, the defendant’s claim is still subject to the plain error doc-
trine, as a Kitchens waiver does not foreclose claims of plain error. See
State v. McClain, 324 Conn. 802, 805, 155 A.3d 209 (2017). Similarly, the
defendant’s waiver does not preclude our review of this claim pursuant to
our inherent supervisory authority over the administration of justice. See
State v. Fuller, 158 Conn. App. 378, 391, 119 A.3d 589 (2015).
26
The court included the corroboration requirement in its charge on the
two perjury counts.
27
Defense counsel argued that ‘‘the state has no idea what the next witness
is going to say, and that’s Doreen Stiles . . . whose lawyer has informed
me that she intends to get on the . . . stand and say the police bullied her
the first time and that [the defendant] did not induce her to change her
testimony, and so the state, apparently—and it is an open question what
Ms. Stiles will do apparently from moment to moment. Her testimony
changes like the New England weather. But the state has in its possession
and has announced privately an intention to seek to admit her prior testimony
as Whelan testimony.’’
28
The court stated: ‘‘Well, the problem . . . as I understand it, this witness
has previously testified in one direction at the original murder trial and a
completely different direction at the [first] habeas [trial] and then took the
fifth amendment at [the second] habeas [trial]. I don’t know how anybody
could be confident with what she’s going to say today, and I don’t know
that the state or anyone’s current belief as to what she’s going to state
today, based upon a conversation with her attorney, is something that can
be taken with great confidence.
‘‘What her testimony will be is what her testimony will be, and under
these circumstances, I don’t see how anyone could have great confidence
in what her testimony will be on direct and in the crucible of cross-exami-
nation.’’
29
In the motion, the defendant requested ‘‘an order permitting him to
inspect, copy, and have produced in court the number of any state witnesses
accepted into the state’s witness protection program, the terms of the wit-
nesses’ acceptance into the program, the costs associated with the witnesses’
participation in the program, whether any such witnesses or managers were
prosecuted for offenses against the administration of justice, and any addi-
tional material . . . that may be relevant to the claims’’ set forth in the
motion.
30
The trial transcript states:
‘‘The Court: You want every record with regard to the witness protection
program. That would necessarily indicate the names of everybody in the
witness protection program. That would necessarily indicate where they’re
routinely housed. That would necessarily indicate—it could necessarily indi-
cate from what restaurants or groceries agents routinely obtain food for
people that are housed in order to take it to them.
‘‘[The Defendant’s Counsel]: We want the very sort of details that the
state is going to present against [the defendant] as to the benefits they
provide to their witnesses. Now—
‘‘The Court: Do you see a security problem involved for the individuals—
‘‘[The Defendant’s Counsel]: None.
‘‘The Court: —per the essence of the program?
‘‘[The Defendant’s Counsel]: None; because you can order me not to
disclose them to anyone, and that routinely happens in cases involving
national security where defense counsel—limitations are placed upon
defense counsel who are provided with access, who nonetheless have a
right to present a defense.’’
31
The court stated: ‘‘[T]he defendant is accused of bribing a witness to
change her testimony. This situation is distinctly different and a far cry from
incidences where the state, acting in its official capacity and pursuant to
statute, offers goods and services to a witness who faces a potential risk
of harm for testifying against a defendant charged with a serious criminal
offense.
‘‘The defendant has not provided any evidence to suggest that the state
conditions that protection pursuant to the witness protection statute upon
specific or favorable testimony from that witness, nor can this practice be
gleaned from the statute.
‘‘The plain language of the statute indicates that the primary policy con-
cerning protecting witnesses facing a potential risk of harm for testifying
against a defendant charged with a serious offense.
‘‘The court cannot find that the state, acting in its official capacity in
carrying out the mandates of the statutory witness protection program, is
similarly situated to the defendant, who allegedly attempted to bribe a
witness with a television in order to elicit favorable testimony.’’
32
According to the state, this claim is moot because the defendant has
challenged only the granting of the motion to quash, and not the court’s
ruling that he was not entitled to an evidentiary hearing on his selective
prosecution claim. The defendant argues, however, that because the court
granted the motion to quash, he was unable to make the prima facie showing
that is necessary to obtain an evidentiary hearing on a selective prosecution
claim. We, therefore, disagree that this claim is moot.
33
A ‘‘[w]itness at risk of harm’’ is defined as a ‘‘witness who, as a result
of cooperating in an investigation or prosecution of a serious felony offense,
has been, or is reasonably likely to be, intimidated, harassed, threatened,
retaliated against or subjected to physical violence.’’ General Statutes § 54-
82t (a) (2).
34
General Statutes § 54-82t (j) provides: ‘‘Any record of the Division of
Criminal Justice or other governmental agency that, in the reasonable judg-
ment of the Chief State’s Attorney or a state’s attorney, would disclose or
would reasonably result in the disclosure of the identity or location of any
person receiving or considered for the receipt of protective services under
this section . . . shall be confidential and not subject to disclosure under
the Freedom of Information Act, as defined in section 1-200.’’