State v. Moore
Full Opinion (html_with_citations)
Opinion
The state appeals, following our grant of certification, from the judgment of the Appellate Court reversing the conviction of the defendant, Dan L. Moore, of three counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), four counts of attempt to commit robbery in the first degree in violation of § 53a-134 (a) (4) and General Statutes § 53a-49 (a), and one count of conspiracy to commit robbery in the first degree in violation of § 53a-134 (a) (4) and General Statutes § 53a-48 (a). The state claims that the Appellate Court improperly concluded that the defendantās sixth amendment right of confrontation
āThe victims immediately called 911 to report the robbery and the license plate number of the van. Shortly after the robbery was reported, a Hartford police officer saw the van as it stopped near Main and Sanford Streets in Hartford. The driver, Wallace, ignored police efforts to stop the van, instead leading police from four different police departments on a high speed chase until the van eventually was brought to a stop on Interstate 84. Brooks, Cromwell, Wallace and the defendant were detained and arrested.
āLater that night at the Windsor police station, the seven victims viewed photographic arrays containing photographs of Brooks, Wallace, Cromwell and the defendant. Three victims identified Brooks as the gunman. One victim identified Cromwell as an assailant.
āAt trial, Brooks, Cromwell and Wallace testified against the defendant pursuant to plea agreements. On direct examination, Brooks testified that the defendant was present during the robbery and at some point got out of the van to pick up a wallet that Cromwell had taken from a victim and thrown on the ground. He also testified that the defendant threw the wallet out of the van as they drove away. This testimony generally was consistent with testimony given by the victims and by Wallace and Cromwell, although Brooksā overall depiction of the eveningās events varied from the testimony of others in several respects.
āOn cross-examination, Brooks changed his testimony. He testified that the defendant had been dropped off at a nightclub, Club Pyramid, prior to the robbery and was picked up after the robbery.
After Brooks invoked his fifth amendment privilege, defense counsel moved to strike his redirect testimony from the record. In urging the court to grant the motion, defense counsel repeatedly argued that, although she had cross-examined Brooks following his testimony on direct examination and had done so āfully,ā her lack of an opportunity to recross-examine Brooks following his redirect testimony was prejudicial.
āThe facts of the plea on January 27, 2005, [were] brought up on direct examination, and inconsistencies between [Brooksā] in-court testimony . . . were pointed out on direct examination, [and] there are several instances in the testimony where . . . Brooksā plea was . . . mentioned. So . . . defense [counsel] had an opportunity to cross-examine [Brooks] about that plea on cross-examination. If . . . defense [counsel] did not do that, well, that was up to the defense.
āBut, in any event, the court finds that, because the issues brought up on redirect [examination] go only to the credibility of the witness ... it will not be excluded.ā When the jurors returned to the courtroom, the court instructed that the testimony of Brooks had concluded and that the jurors were not to speculate as to the reason why he did not testify further. The jury subsequently found the defendant guilty of three counts of robbery in the first degree, four counts of attempt to commit robbery in the first degree and one count of conspiracy to commit robbery in the first degree. Although defense counsel moved for a mistrial, the trial court denied the motion for the same reasons that it had denied the motion to strike.
On appeal to the Appellate Court, the defendant claimed that the trial court improperly had denied the motion to strike Brooksā redirect testimony. He specifically claimed that, because the defense had not been given an opportunity to question Brooks about new
We granted the stateās petition for certification to appeal limited to the following issue: āDid the Appellate Court properly conclude that the trial court abused its discretion by refusing to strike the stateās redirect examination of [Brooks], and, if so, was the impropriety harmless error?ā State v. Moore, 284 Conn. 927, 934 A.2d 243 (2007).
I
The state claims that the Appellate Court improperly reversed the defendantās conviction on the ground that
We begin our analysis by setting forth the standard of review. ā[I]n . . . matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed. . . . The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court. . . . Every reasonable presumption should be made in favor of the correctness of the courtās ruling in determining whether there has been an abuse of discretion. . . .
āThe courtās discretion, however, comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment [to the United States constitution].ā (Emphasis added; internal quotation marks omitted.) State v. Osimanti, 111 Conn. App. 700, 707-708, 962 A.2d 129 (2008), cert.
ā[T]he sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witnessā motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . However, [t]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . Additionally, [although it is within the trial courtās discretion to determine the extent of cross-examination . . . the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment. . . . The right of confrontation is preserved [however] if defense counsel is permitted to expose to the [jurors] the facts from which [they], as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.ā (Citations omitted; internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 81-82, 890 A.2d 474, cert.
āIf a defendantās cross-examination is restricted by the competing fifth amendment right of a witness, it may be necessary to strike the direct testimony of that witness.ā (Internal quotation marks omitted.) State v. Roma, 199 Conn. 110, 116, 505 A.2d 717 (1986). ā[T]he sixth amendment is violated only when assertion of the privilege undermines the defendantās opportunity to test the truth of the witnessā direct testimony.ā Bagby v. Kuhlman, 932 F.2d 131, 135 (2d Cir.), cert. denied, 502 U.S. 926, 112 S. Ct. 341, 116 L. Ed. 2d 281 (1991). āTo reconcile a defendantās rights under the confrontation clause with a witnessā assertion of the fifth amendment privilege, a court must initially consider: (1) whether the matter about which the witness refuses to testify is collateral to his or her direct testimony, and (2) whether the assertion of the privilege precludes inquiry into the details of his or her direct testimony. ... If the court determines that the privilege has been invoked with respect to a collateral matter, or that the invocation does not preclude inquiry into the witnessā direct testimony, then the defendantās right to cross-examine has not been impinged and no corrective action is necessary. Conversely, the sixth amendment is violated when a witness asserts the privilege with respect to a non-collateral matter and the defendant is deprived of a meaningful opportunity to test the truth of the witnessā direct testimony.ā (Citations omitted.) Id.; see also, e.g., United States v. Newman, 490 F.2d 139, 145 (3d Cir. 1974); Fountain v. United States, 384 F.2d 624, 627-28 (5th Cir. 1967), cert. denied sub nom. Marshall v. United States, 390 U.S. 1005, 88 S. Ct. 1246, 20 L. Ed. 2d 105 (1968); United States v. Smith, 342 F.2d 525, 527 (4th Cir.), cert. denied, 381 U.S. 913, 85 S. Ct. 1535, 14 L. Ed. 2d 434 (1965); cf. State v. Valeriano, 191 Conn. 659, 666-67, 468 A.2d 936 (1983) (āextreme sanctionā of
We conclude that Brooksā assertion of his fifth amendment privilege did not preclude inquiry into the details of his redirect testimony because he had been queried on direct and cross-examination regarding all of the matters that the prosecutor raised on redirect examination. Brooks testified on direct examination that the defendant had been present during the robbery and that he had exited the van, picked up a wallet belonging to one of the victims and subsequently tossed it out the window as the van drove away. Brooks also testified that he did not recall telling the prosecutor or Judge Miano that all four men had agreed to participate in the robbery
On cross-examination, defense counsel observed that Brooks appeared to admit on direct examination that he had agreed in his plea that the defendant had been present during the robbery. Brooks concurred, testifying that he had told Judge Miano when he entered his plea that the defendant had been present, but added that he initially said that the defendant had not been present. Following continued questioning regarding the details of the robbery, Brooks reiterated that the defendant had been present. When defense counsel persisted in asking several additional questions regarding the defendant, however, Brooks complained: āIām . . . really tired of hearing about [the defendant]. But, like I said from the beginning, Iām going to tell the truth like the judge said . . . earlier. [The defendant] wasnāt nowhere around. [The defendant] wasnāt there. I justā when I took my plea, it was like they wanted me to implicate somebody [who] was going to trial instead of us three [who were] already pleading out .... I donāt know the whole situation. But he wasnāt there. Thatās it.ā Brooks then acknowledged that he was under oath and reiterated at the end of his cross-examination testimony that the defendant had not been present during the robbery.
As this court emphasized in State v. Reed, 174 Conn. 287, 386 A.2d 243 (1978), ā[t]he decision whether to cross-examine a witness is almost always a . . . tactical one. . . . When a party chooses not to cross-examine a witness in order to avoid the possibility of eliciting harmful testimony, his right to confront and cross-examine that witness as guaranteed by the sixth and fourteenth amendments of the United States constitution is in no way abridged.ā (Internal quotation marks
The defendant argues that new matters were raised on redirect examination pertaining to the crimes charged and that the defense had no opportunity to explore them. He contends that these new matters consisted of details of Brooksā plea agreement and conversation with the prosecutor that had not been covered on direct examination. The defendant specifically argues that the new details included information that Brooks (1) had not lied to Judge MiaƱo, (2) had told Judge Mia.no that the defendant had gotten out of the van, picked up a wallet from the ground, gotten back into the van and tossed the wallet back out of the van, (3) had not spoken with the prosecutor until after he entered his plea, and (4) had told the prosecutor that he was concerned about the defendant going to trial and about his own anticipated testimony that the defendant had been present during the robbery. The defendant further contends that the defense wanted to recross-examine Brooks to remove the inference raised on redirect examination that Brooks previously had not told Judge Miano or the prosecutor that the defendant had not been present at the robbery and to examine whether and to what extent Brooks felt pressured to testify as he did. We do not agree that the defense had no prior opportunity to question Brooks about these matters.
ā[When] . . . new matter is brought out on redirect examination, the defendantās first opportunity to test
Although there were minor differences between Brooksā redirect testimony and his earlier testimony on direct and cross-examination, his testimony on all three occasions related to the factual basis for his plea, his obligation to tell the truth when he entered his plea, his conversation with the prosecutor and his perception that others may have wanted him to testify against the defendant. The problem is not that the defense did not have the opportunity to address these matters on recross-examination but that it failed to take advantage of the opportunities presented during cross-examination to query Brooks further.
For example, the defense could have sought testimony from Brooks on cross-examination regarding his perception that others wanted him to testify against the defendant following his statement that, at the time he entered his plea, it had seemed like āthey [had] wanted [him] to implicate somebody [who] was going to trial instead of us three [who were] already pleading out . . . .ā Instead of asking Brooks to explain what he meant by feeling pressured to āimplicateā someone who was going to trial and his possible loyalty to the defendant, however, the defense ignored this testimony, merely asking if Brooks understood that he was testifying under oath. Brooks also testified on direct examination about his conversation with the prosecutor before the defendantās trial, but the defense did not ask Brooks on cross-examination what Brooks and the prosecutor had discussed and when the discussion took place, instead choosing not to pursue the matter. Finally, Brooksā cross-examination testimony that
The defendant contends that the present case is similar to United States v. Caudle, supra, 606 F.2d 458-59, and Kelly v. State, 842 So. 2d 223, 226 (Fla. App. 2003), in which each court concluded that it was reversible error to deny the defendant the opportunity to recross-examine a witness because the matters raised on redirect examination were new. We disagree because those cases are factually distinguishable.
In Caudle, one of the principal issues at trial was the authorship of a feasibility study submitted in connection with a federal loan application. United States v. Caudle, supra, 606 F.2d 455. On redirect examination, the prosecutor took the witness through a page-by-page examination of the study to determine which part of each page represented the witnessā original work. Id. When counsel for the defendants sought to take the witness through a similar page-by-page examination during recross-examination, the District Court sustained the prosecutorās objection on the ground that the recross-examination would be repetitive. Id., 456. The Fourth Circuit Court of Appeals concluded, however, that the District Court improperly had denied the defendants their right to recross-examine the witness. Id., 458-59. The court determined that, because the witness had testified on direct and cross-examination that the defendants had supplemented his work with additional information and had actually compiled the study, the question of who had prepared the study was
We conclude that Caudle is inapposite because the information disclosed on redirect examination in that case consisted of a large body of new material that was crucial in resolving the central issue of the case, namely, who had authored various portions of the feasibility study. See id., 455, 458. In contrast, Brooksā testimony on redirect examination that he had not lied to Judge MiaƱo and that he had acknowledged certain details at his plea hearing regarding the defendantās participation in the robbery did not raise any new issues that could not have been explored on cross-examination in response to Brooksā direct testimony. The defense also could have queried Brooks on cross-examination regarding the details of his conversation with the prosecutor because the fact that such a conversation took place had been elicited during Brooksā direct testimony.
Similarly, in Kelly v. State, supra, 842 So. 2d 223, a Florida appeals court concluded that the trial court improperly had denied the defendant her right to recross-examine a witness regarding critical information elicited for the first time on redirect examination. Id., 224. During cross-examination, a police officer testified that his report indicated that a third party had admitted to shooting the murder weapon, but the officer then testified on redirect examination that his report did not state that he had had a conversation with that third party. Id., 225. The trial court subsequently declined to allow recross-examination of the officer on this matter. Id., 225-26. The appeals court concluded,
We conclude that Kelly also is inapplicable in the present context because the redirect testimony in that case was completely new and conflicted with the testimony that the police officer had given on cross-examination. Id., 225-26. In the present case, however, Brooksā redirect testimony was consistent with his earlier testimony and merely illuminated a few minor details. Consequently, Kelly is factually distinguishable.
On the basis of our determination that Brooksā assertion of his fifth amendment privilege did not prevent the defense from inquiring into the issues raised on redirect examination because the same issues had been raised on direct and cross-examination, we conclude that the defendantās right of confrontation was not violated.
We next consider the certified issue of whether the trial court abused its discretion in denying the motion to strike Brooksā redirect testimony. āOnce [a] defendant has been permitted cross-examination sufficient to satisfy the sixth amendment, restrictions on the scope of cross-examination are within the sound discretion of the trial judge.ā State v. Valentine, 240 Conn. 395, 407-408, 692 A.2d 727 (1997). In the present case, the parties did not address in their briefs to this court whether the trial court abused its discretion but confined their arguments to the constitutional question of whether the defendant was deprived of his sixth amendment right of confrontation.
n
The defendant presents three alternative grounds on which the Appellate Courtās judgment may be affirmed. First, the defendant argues that the trial court improperly allowed Brooks to invoke his fifth amendment privilege after he waived it by agreeing to testify. Second, the defendant argues that the prosecutor committed certain improprieties during his direct and redirect examination of Brooks and during his closing argument and that these improprieties deprived the defendant of a fair trial. Third, the defendant contends that the trial court improperly failed to give the jury a cautionary instruction on accomplice testimony. We examine each ground in turn.
A
The defendant first claims that Brooks waived his fifth amendment privilege by testifying about the details of the robbery on direct and cross-examination, and, therefore, the trial court should have compelled him to continue his testimony. The defendant also claims that the trial courtās failure to take such measures constituted harmful error and a ground for affirming the judgment of the Appellate Court. The state responds that the
A defendant can prevail on an unpreserved constitutional claim under Golding āonly if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.ā Id. āThe first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.ā (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005).
Assuming, without deciding, that Brooks improperly was allowed to invoke his fifth amendment privilege,
In the present case, although Brooks may have been regarded as a key prosecution witness at the start of the trial, his recantation on cross-examination of his earlier testimony implicating the defendant in the crime severely undermined his credibility and value as a witness for the state. In addition, much of his contradictory testimony during the stateās relatively brief redirect examination was cumulative. For example, Brooks repeated his testimony, first given on direct examination, that he had agreed to facts in the plea representing that the defendant had participated in the robbery. He also testified, consistent with his testimony on cross-examination, that he had indicated before entering his plea that the defendant had not been present during the robbery. He further testified that the reason that he had agreed to the facts in the plea and had said what the prosecutor wanted to hear in a post-plea conversa
B
The defendant next claims as an alternative ground for affirmance that the prosecutor committed several improprieties that deprived him of a fair trial. The defendant specifically claims that the prosecutor became an unsworn witness through his direct and redirect examination of Brooks, that he personally vouched for the credibility of several witnesses during closing argument
āWe previously have recognized that a claim of prosecutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987). . . . In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial. ... To determine whether the defendant was deprived of his due process right to a fair trial, we must determine whether the sum total of [the prosecutorās] improprieties rendered the defendantās [trial] fundamentally unfair, in violation of his right to due process. . . . The question of whether the defendant has been prejudiced by prosecutorial [impropriety], therefore, depends on whether there is a reasonable likelihood that the juryās verdict would have been different absent the sum total of the improprieties.ā (Citation omitted; internal quotation marks omitted.) State v. Gould, 290 Conn. 70, 77-78, 961 A.2d 975 (2009).
1
The defendantās first claim is that the prosecutor became an unsworn witness during his direct and redirect examination of Brooks when he referred to facts not in evidence regarding Brooksā out-of-court conversations with Judge Miano and the prosecutor, thus pitting his own credibility against that of Brooks and
āA prosecutor . . . may not . . . inject extraneous issues into the case that divert the jury from its duty to decide the case on the evidence.ā (Internal quotation marks omitted.) State v. Santiago, 269 Conn. 726, 735, 850 A.2d 199 (2004). āA prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. ... [A] lawyer shall not . . . [a]ssert his personal knowledge of the facts in issue, except when testifying as a witness. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.ā (Internal quotation marks omitted.) State v. Williams, 81 Conn. App. 1, 13, 838 A.2d 214, cert. denied, 268 Conn. 904, 845 A. 2d 409 (2004). On the other hand, a prosecutor may introduce evidence of a prior inconsistent statement made by a witness to impeach the credi
Our decision in State v. Coney, 266 Conn. 787, 835 A.2d 977 (2003), is directly on point. In that case, the defendant also claimed that the stateās attorney improperly became an unsworn witness when he asked two witnesses about inconsistencies between their trial testimony and earlier statements that they had made to the stateās attorney and the police.
Presented with similar facts, we also conclude that the prosecutor did not become an unsworn witness when he queried Brooks during his direct and redirect examination. He simply followed the procedure set forth in the Code of Evidence by first asking Brooks if he recalled telling him and Judge Miano that the defendant had known about and participated in the robbery and then asking about the possible inconsistencies between those statements and his other testimony on direct and cross-examination. Merely asking Brooks to explain an inconsistency in his testimony was not the equivalent of giving testimony as an unsworn witness. See id., 724 (fact that prosecutor referred to prior conversation with witness during examination of witness, without more, did not render prosecutor unsworn witness). That Brooks may have made the inconsistent statements to Judge MiaƱo and the prosecutor, rather than someone else, is of no consequence in these circumstances. See State v. Coney, supra, 266 Conn. 815-16.
In pressing his unsworn witness claim, the defendant relies on cases from several other jurisdictions. See, e.g., United States v. Cardarella, 570 F.2d 264, 267 (8th Cir.), cert. denied, 435 U.S. 997, 98 S. Ct. 1651, 56 L. Ed. 2d 87 (1978); United States v. Puco, 436 F.2d 761, 762 (2d Cir. 1971); United States v. Block, 88 F.2d 618, 620 (2d Cir.), cert. denied, 301 U.S. 690, 57 S. Ct. 793,
With respect to the defendantās claim regarding the prosecutorās reference to unsworn witness testimony during closing argument, the following additional facts are relevant to our resolution of this claim. During closing argument, the prosecutor sought to downplay the inconsistencies in Brooksā testimony stemming from the recantation of his earlier testimony by emphasizing portions of his testimony that were consistent. The prosecutor first argued that Brooks had implicated the defendant in the robbery when he testified that he had seen the defendant pick up and examine a wallet that had been thrown on the ground, an incident that allegedly occurred during the robbery. He next argued that Brooks had implicated the defendant on the day that he entered his plea when Judge MiaƱo asked him to tell him truthfully what had occurred. He finally argued that Brooks had implicated the defendant in the robbery in his conversation with the prosecutor in the presence of his own attorney and that Brooksā testimony on all three occasions had been reliable.
The state concedes, however, that the prosecutor improperly characterized Brooksā testimony on direct examination regarding his prior out-of-court conversation with the prosecutor. Although the prosecutor asked Brooks several questions on direct examination concerning the defendantās knowledge of the impending robbery, Brooks repeatedly evaded answering the questions by stating that he did not recall telling the prosecutor that the defendant had known about the robbery. Accordingly, in the absence of an admission or any other evidence establishing that Brooks had stated otherwise, the prosecutor improperly referred in his closing argument to Brooksā alleged testimony that he had told the prosecutor in their out-of-court conversation that the defendant had known about the robbery. To
2
The defendantās second claim of prosecutorial impropriety is that the prosecutor vouched for the credibility of Brooks and two other witnesses during closing argument when he declared that (1) Brooks had been truthful during the plea hearing when he told Judge Miano that the defendant had been involved in the robbery, and (2) the testimony of two other witnesses who had participated in the robbery had been truthful. The state responds that the prosecutor did not vouch for the credibility of the witnesses during closing argument but properly interpreted the evidence. We agree with the state.
With respect to the claim regarding Brooks, the prosecutor asked Brooks on redirect examination if he had told the truth to Judge Miano during the plea hearing. When Brooks replied that he had not lied but that the defendant āwasnāt there,ā the prosecutor asked: āAre you saying that you lied to Judge Miano when you told him, during the course of your plea, truthfully, when he asked you [whether the defendant] was present, [whether the defendant] got out of the vehicle . . . and, in fact, took a wallet that was tossed over to him and took that wallet and went in the van? Is that a he that you told to Judge MiaƱo?ā Brooks replied: āThatās what I agreed upon.ā During his rebuttal argument, the prosecutor responded to defense counsel's suggestion that he had pressured Brooks into impheating the defendant in the robbery by referring to an exchange with Brooks on redirect examination in which Brooks conceded that he had not spoken to the prosecutor āuntil after he had a plea, until after he told Judge MiaƱo, truthfully, that [the defendant] was involved and [the defendant] picked up the wallet.ā
We conclude that the prosecutorās comments were not improper. In referring to Brooksā admission that he did not speak to the prosecutor āuntil after he had a plea, until after he told Judge Miano, truthfully, that [the defendant] was involved and [the defendant] picked up the wallet, ā the prosecutor was not personally vouching for Brooksā credibility but, rather, was commenting on Brooksā own testimony on direct and redirect examination that he had understood his obligation to tell the truth to Judge MiaƱo, that he had not lied to Judge MiaƱo and that he had agreed to the factual basis for his plea.
With respect to the defendantās claim regarding the other two witnesses, the prosecutor reminded the jurors during closing argument that (1) they had heard testimony that Cromwell and Wallace had cooperated with the police immediately after their arrest, and (2) the information that Cromwell and Wallace had given
Insofar as the prosecutor argued that Cromwell and Wallace āgave it upā and were ātruthfulā in testifying at trial and in their pretrial conversations with the police, the prosecutor was not vouching for their credibility. He merely was āsuggest[ing]ā that the two witnesses were truthful in testifying at trial because they previously had admitted to their guilt and had cooperated with the police. Moreover, the prosecutor was careful to add that it was for the jurors to decide whether the witnesses had been truthful, and that their cooperation with the police was just one factor to consider in assessing credibility. Accordingly, the prosecutorās comments regarding Cromwell and Wallace during closing argument were not improper.
3
Because the prosecutor committed one impropriety during closing argument, we must determine whether that impropriety deprived the defendant of his right to a fair trial. āThe . . . determination of whether the defendant was deprived of his right to a fair trial . . . involve [s] the application of the factors set out by this court in State v. Williams, [supra, 204 Conn. 540]. As [the court] stated in that case: In determining whether prosecutorial [impropriety] was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the [impro
ā[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the stateās advocate, a prosecutor may argue the stateās case forcefully, [provided the argument is] fair and based [on] the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the juryās attention from the facts of the case. . . .
ā[T]he determination of whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any [incident] of the prosecutorās improper [conduct]. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendantās right to a fair trial. . . . [T]he fact that defense counsel did not object to one or more incidents of [impropriety] must be considered in determining whether and to what extent the [impropriety] contributed to depriving the defendant of
We conclude that the defendant was not deprived of his right to a fair trial as a consequence of the prosecutorās improper argument. Although the argument was. not invited by the defense and was related to the central issue of whether the defendant had knowledge of the imminent robbery, other factors militate strongly in favor of the state. Most significantly, Brooksā overall credibility was severely damaged when he perjured himself on cross-examination by recanting his earlier testimony implicating the defendant in the crime. Furthermore, Cromwell and Wallace provided consistent testimony against the defendant. Consequently, the prosecutorās improper reference to Brooksā testimony was likely to have been discounted or disregarded entirely by the jurors.
In addition, the impropriety was the only such error committed by the prosecutor, represented a very small portion of his closing remarks and cannot be considered severe under Williams. Moreover, the trial courtās failure to give a curative instruction was offset by the fact that the defense did not request one. As we previously have noted, ā[w]hen defense counsel does not object . . . [or] request a curative instruction ... he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendantās right to a fair trial.ā (Interna! quotation marks omitted.) Id., 79. The court, however, did give general instructions of a mitigating nature that the statements and questions of the trial attorneys were not to be considered evidence and that it was the juryās responsibility to find the facts and determine the credibility of the witnesses.
Lastly, the stateās case against the defendant was strong. Cromwell and Wallace both testified against the defendant, and one of the victims also identified the defendant as a participant in the robbery. Brooks him
C
The defendant claims that the Appellate Courtās judgment also may be affirmed on the ground that the trial court failed to give a jury instruction on accomplice testimony. The defendant claims that the courtās general instructions on credibility were not sufficient to alert the jurors that special consideration is required when accomplice testimony is given and that, in the absence of such an instruction, the jury had no way of knowing that it should view the testimony of Brooks, Cromwell and Wallace, the stateās key witnesses, with caution. The defendant acknowledges that defense counsel did not request an instruction on accomplice testimony and that the lack of an instruction is not a violation of a constitutional right. The defense also did not take exception to the trial courtās failure to give such an instruction. The defendant thus seeks review under the plain error doctrine. See Practice Book § 60-5. The state responds that the defendant has not met his burden of demonstrating harm under the plain error doctrine. We agree with the state.
The following additional facts are relevant to our resolution of this claim. During the stateās direct examination of Cromwell, Wallace and Brooks, each witness was queried regarding his respective plea agreement. The state elicited testimony that all three witnesses had agreed to provide information to the state regarding the robbery, nothing had been promised in exchange for this information, the witnesses had not been asked
Cromwell further testified on direct examination that no one had made any representations as to what his sentence would be when he entered his plea. Brooks testified that he had accepted a sentence of twenty years imprisonment, suspended after eleven years, and five years probation when he entered his plea, and Wallace testified that the court had indicated, at the time he entered his plea, that he would receive a sentence of fourteen years, suspended after seven years, and five years probation, with the right to argue for less. Brooks also testified that he had a lengthy criminal history and initially had lied to the police about his name. Wallace added that, at the time of his plea, he had been on probation for second degree assault.
On cross-examination, defense counsel asked Cromwell and Wallace whether they had expected to obtain lesser sentences when they entered their pleas and agreed to testify at trial. Both reiterated that they had received no such promises. Cromwell explained that his only expectation was that the process would be fair, and Wallace answered in the affirmative when defense counsel asked if he hoped that he would be helped by his testimony at trial.
At the end of her closing argument, defense counsel argued that the jurors had heard from at least two witnesses who had taken part in the robbery and that they believed that their trial testimony might influence their ultimate sentence, although the state had not made any promises to that effect. Defense counsel contended that Brooks, in particular, had been trying to balance what he claimed was his initial truthful statement that the defendant had not been involved in the robbery with his need to cooperate with the prosecutor in order to obtain a lesser sentence. Defense counsel then argued: āI ask whether that combination of circum
In his rebuttal argument, the prosecutor referred to the fact that Wallace and Cromwell had cooperated immediately after they were stopped by the police, had been spoken to independently of one another and had given the same description of what had happened, including where Brooks dropped off the gun. The prosecutor then stated: āNow, youāve heard about the plea bargain offers, and thatās true, the state did not make those offers; that was done by the court.ā The prosecutor noted that each of the witnesses had admitted to his own involvement in the robbery and testified as to what had happened with the expectation that Judge MiaƱo and the court would decide on a fair plea arrangement. As a result, Brooks had agreed to accept the offer, admit his involvement and testify truthfully at trial. The prosecutor reiterated that the state was not involved in the offer and that the offer had not been made with the expectation of any particular testimony.
The trial court later instructed the jury on credibility. The court did not refer to Cromwell, Wallace and Brooks specifically in its credibility instructions but advised the jurors that they were responsible for deciding which testimony to believe or to discredit and the weight that it should be given. The court further instructed that, in making these decisions, the jurors could consider a number of factors, including whether the witness had āan interest in the outcome of [the] case or any bias or prejudice concerning any party or any matter involved in the case . . . .ā Shortly after that instruction, the court repeated that, in weighing the testimony of the witnesses, the jurors could con
We begin by setting forth the principles that govern plain error review. āAn appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily discernable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error claim presented in light of the record.
āAlthough a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application. Plain error review is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Thus, in addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. . . . [A]n appellate court addressing an appellantās plain error claim must engage in a review of the trial courtās actions and, upon finding a patent error, determine whether the grievousness of that error qualifies for the invocation of the plain error doctrine and the automatic reversal that accompanies it.
āWe next turn to a closer examination of the plain error doctrine itself. This doctrine, codified at Practice
In the present case, the defendant claims that the trial court improperly failed to instruct the jury on accomplice testimony. āGenerally, a defendant is not entitled to an instruction singling out any of the stateās witnesses and highlighting his or her possible motive for testifying falsely. . . . An exception to this rule, however, involves the credibility of accomplice wit
āWith respect to the credibility of accomplices, we have observed that the inherent unreliability of accomplice testimony ordinarily requires a particular caution to the jury [because] . . . [t]he conditions of character and interest most inconsistent with a credible witness, very frequently, but not always, attend an accomplice when he testifies. When those conditions exist, it is the duty of the [court] to specially caution the jury.ā (Internal quotation marks omitted.) State v. Patterson, 276 Conn. 452, 468, 886 A.2d 777 (2005). Moreover, because āan instructional error relating to general principles of witness credibility is not constitutional in nature . . . the defendant bears the burden of establishing that the error deprived him of his due process right to a fair trial.ā (Citation omitted.) Id., 471-42.
Mindful of these principles, we conclude that there was āplainā or āreadily discernableā error. (Internal quotation marks omitted.) State v. Myers, supra, 290 Conn. 287. The parties agree that Cromwell, Wallace and Brooks were accomplices in the robbery who testified as witnesses for the state. It is also undisputed that the trial court failed to instruct the jury on accomplice testimony. Accordingly, the trial court did not satisfy its obligation to give a cautionary instruction, and we must determine whether this is one of those truly extraordinary situations in which the error was so harm
In State v. Ruth, 181 Conn. 187, 199-200, 435 A.2d 3 (1980), in which the defendant raised a similar claim, we considered several factors in determining whether the trial courtās failure to give a cautionary instruction deprived the defendant of his right to a fair trial. These factors included whether (1) the accomplice testimony was corroborated by substantial independent evidence of guilt, (2) the accomplice testimony was consistent, (3) the accomplicesā potential motives for falsifying their testimony were brought to the juryās attention, and (4) the courtās instructions to the jury suggested that the witnesses might have an interest in coloring their testimony. Id.; see also State v. Brown, 187 Conn. 602, 613-14, 447 A.2d 734 (1982); State v. Taheri, 41 Conn. App. 147, 154-55, 675 A.2d 458, cert. denied, 237 Conn. 931, 677 A.2d 1374 (1996).
Applying these factors in the present case, we conclude, first, that the accomplice testimony was corroborated by substantial independent evidence of the defendantās guilt. Although the seven victims testified that their attention during the robbery was focused almost exclusively on the gunman, four testified that at least three men, none of whom was the driver, exited from the passenger side of the van when it pulled up beside them in the parking lot.
The second factor also favors the state. Although Cromwell and Wallace disagreed on certain minor details, their testimony was consistent on the principal
With respect to the third factor, namely, whether the potential motives of the accomplices for falsifying their testimony were brought to the juryās attention, all three accomplices were questioned thoroughly on direct and cross-examination regarding their plea agreements, whether they had promised to testify in any particular way, their respective understandings that they were expected to tell the truth and whether they anticipated more lenient sentences in exchange for their testimony. Brooks further testified that he had a lengthy criminal history and had lied to the police about his name when he initially was questioned, and Wallace testified that he was on probation for second degree assault when he entered his plea. In addition, defense counsel contended during closing argument that Brooks and Cromwell believed that their trial testimony might influence their ultimate sentences and that this consideration militated against finding the defendant guilty. The prosecutor responded during his rebuttal argument that the state had not been involved in the plea bargains and that there had been no expectation that Cromwell, Wallace and Brooks would testify in any particular way. In sum, both sides queried the accomplices in such a manner that their credibility was placed before the jury as a major issue in the case.
The only factor weighing in the defendantās favor is the omission of a specific jury instruction suggesting that Cromwell, Wallace and Brooks might have a special interest in testifying against the defendant. The court instead gave a standard, general instruction to consider the biases of witnesses in weighing credibility. Although
The defendant argues that the present case is similar to State v. Patterson, supra, 276 Conn. 464, in which the trial court declined the defendantās request for a special credibility instruction regarding the testimony of a jailhouse informant. In that case, we analogized the requested instruction to an instruction on accomplice testimony and concluded that, although the informant had testified on direct and cross-examination that he had been promised certain benefits by the state in exchange for his cooperation against the defendant, the
We conclude that Patterson is distinguishable from the present case. We first note that the claim in Patterson was not reviewed under the plain error doctrine because the defendant in that case, unlike the defendant in the present case, had requested a cautionary instruction that the court declined to give. See id., 464-65. Thus, the standard of review was not as demanding because the court was not required to conclude that the error was so clear and harmful that reversal was required to avoid manifest injustice. See, e.g., State v. Myers, supra, 290 Conn. 289. Second, unlike in the present case, there was no substantial, independent evidence in Patterson implicating the defendant in the crime. State v. Patterson, supra, 276 Conn. 473. In the present case, even without the accomplice testimony, the positive identification of the defendant by one of the victims, the testimony by four victims that at least three men had exited the passenger side of the vehicle and the police identification of the defendant as one of the four men in the van that had the same license plate as the vehicle involved in the robbery provided independent evidence on which the jurors could have based a finding that the defendant was guilty of the crimes charged.
The defendant also relies on seven cases from other jurisdictions in support of his claim. Six of those cases, however, are factually distinguishable. See United States v. Bernal, 814 F.2d 175, 183-85 (5th Cir. 1987) (failure to give instruction was reversible error when
The judgment of the Appellate Court is reversed and the case is remanded with direction to affirm the trial courtās judgment.
In this opinion ROGERS, C. J., and KATZ and VERTEFEUILLE, Js., concurred.
The sixth amendment to the United States constitution provides in relevant part: āIn all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him The sixth amendment right of confrontation is made applicable to state prosecutions through the due process clause of the fourteenth amendment to the United States constitution. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).
The fifth amendment to the United States constitution provides in relevant part: āNo person . . . shall be compelled in any criminal case to be a witness against himself . . .
The fifth amendment privilege against seh-incrimination is made applicable to state prosecutions through the due process clause of the fourteenth amendment to the United States constitution. Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).
The defendant properly raised these three alternative grounds for affirmance in his preliminary statement of the issues pursuant to Practice Book § 84-11 (a), which provides in relevant part: āUpon the granting of certification, the appellee may present for review alternative grounds upon which the judgment may be affirmed provided those grounds were raised and briefed in the appellate court. . . .ā
Of the seven victims, two testified that two men got out of the van, one testified that two or three men got out of the van, three testified that three men got out of the van, and one testified that three or four men got out of the van. Two of the victims also testified that they had seen a driver who remained in the van during the robbery, and all of the victims testified that the men who had exited from the van did so from the passenger side.
Brooks initially testified on cross-examination, however, that the defendant had accompanied the other participants to the scene of the crime, gotten out of the van and, during the time that Brooks was pointing a shotgun at the victims, picked up a wallet that one of the victims had thrown on the ground, opened it and threw it back on the ground.
This conversation with the prosecutor occurred after Brooks entered his plea but before the defendantās trial.
In response to a query by the court, Brooks stated that he understood that his plea agreement could be rejected and that he could be charged with perjury as a consequence of his decision.
Defense counsel argued that Brooksā redirect examination testimony provided āfruitful groundā for recross-examination on several matters, including his apparent agreement with facts implicating the defendant in the crime in order to get the benefit of a plea bargain, his potential intimidation when questioned by Judge MiaƱo during the plea hearing and his testimony that he had agreed to facts that were not necessarily true. Defense counsel also argued several times that Brooksā invocation of his privilege against self-incrimination had resulted in the defense being ācut off from the possibility of questioning him on [recross-examination]ā and being denied the opportunity for recross-examination.
The prosecutor asked Brooks the following questions on direct examination:
āQ. Okay. Do you remember telling me the other day that all of you just sort of agreed to do a robbery after this discussion developed?
āA. Um, I donāt remember telling you that.
āQ. Do you remember saying that the conversation just sort of came up?
āA. Right.
āQ. And a discussion about robbing somebody came up, and all of the people in the van decided to do this? Do you remember saying that?
āA. I donāt remember saying that.
*794 āQ. Okay. And [your attorney] was present when we were talking to you at the time? Do you recall that?
āA. I donāt recall all that. I donāt remember saying exactly that he knew that we [were] going to do this robbery.
āQ. Well, thatās my question. Do you recall saying that to me, that everybody in the van, at that time, decided they would do this robbery, all of you?
āA. I said I donāt remember saying that.
āQ. Okay. Do you remember saying that to Judge MiaƱo on January 27 of 2005, and describing what occurred that evening?
āA. No. I never said that he knew at the time what we [were] talking about, if it was happening.
āQ. Well, did there come a time . . . when [the defendant] agreed to participate in a robbery of some people?
āA. He never agreed, but he was just there, present, because he was caught in it.
āQ. Well, my question is, at some point, did [the defendant] recognize that you and Mr. Cromwell were going to do an armed robbery utilizing the shotgun?
āA. When it happenedā
āQ. āthat you had in the van?
āA. When it happened.
āQ. So he never had any knowledge that you were going to do this until it happened?
āA. Right.
āQ. Is that what youāre saying?
āA. Right.
āQ. And is that what you told Judge MiaƱo?
āA. Uh-huh.
āQ. On January 27?
āA. Yeah.
* * *
āQ. Mr. Brooks, do you recall on January 27, you entered some pleas with regard to your participation in this robbery? Do you recall that?
āA. Uh-huh.
āQ. And during the course of that plea, the court asked me to recite essentially what happened during the incident. And at one point, I indicated . . . there was a discussion in the van about committ[ing] a robbery to obtain money, that this discussion was held amongst the four of them, being you, [the defendant], Mr. Cromwell, and Mr. Wallace?
āA. Well, I didnāt hear when you said that. If thatās whatās written down, then thatās what was said.
āQ. Well, isnāt it true in the plea that you made with Judge MiaƱo on January 27 that you agreed that everybody in the van knew there was going to be a robbery of those individuals?
āA. All right. Well, if itās in there, then thatās what happened. Everybody knew. Everybody knew.
*795 āQ. Well, is that something that you agree with? Whether you said to Judge MiaƱoā
āA. I agree with it. I agree with it. Whatever. I agree with it.ā
Defense counsel raised no objections to this testimony.
After asking Brooks several times if he had agreed to tell the truth during his testimony at trial by taking an oath and by swearing to tell the truth, the prosecutor asked him the following additional questions on redirect examination:
āQ. But you were telling the truth yesterday [during direct examination], correct?
āA. (No response)
āQ. And you were telling the truth back on January 27 of 2005?
āA. Right.
āQ. āwhen you entered a plea and Judge MiaƱo asked you what occurred that evening?
āA. Right.
āQ. Youāre saying to this jury that you lied to Judge MiaƱo?
āA. I didnāt lie to him. I told himā
āQ. Listen to the question.
āA. āthat it wasnāt, that [the defendant] wasnāt there.
āQ. Are you saying that you lied to Judge MiaƱo when you told him, during the course of your plea, truthfully, when he asked you [whether the defendant] was present, [whether the defendant] got out of the vehicle when you had the shotgun pointed at individuals and Mr. Cromwell is searching people and, in fact, took a wallet that was tossed over to him and took that wallet and went in the van? Is that a lie that you told to Judge MiaƱo?
āA. Thatās what I agreed upon.
āQ. Thatās not my question. Judge MiaƱo asked you to tell the truth, did he not?
āA. Yes.
āQ. And he said, āin your own words, as truthfully as you could be, say what happened,ā correct?
āA. Right.
āQ. And that was one of the things you told Judge MiaƱo, that the four of you drove up, and a robbery occurred, and [the defendant] got out of the van, picked up that wallet, got into the van, and tossed it out? You told [the] judge that [the defendant] was there during the robbery, correct?
āA. Yes.
āQ. And when I indicated to Judge MiaƱo, at the time of your plea, that [the defendant] was present in the van with you, Mr. Cromwell, and Mr. Wallace was driving, and a discussion took place where it was agreed upon to rob some individuals in that parking lot, and the van did turn around and approach those individuals, and you got out and [the defendant] was present, you agreed with the facts that I expressed to the court [and that they were] the basis for the crime that you were pleading guilty to, correct?
āA. Yes, I agreed.
āQ. And part of that crime was conspiracy to commit robbery, [and that] was that you and others had an agreement to go and rob individuals?
āA. Right.
*797 āQ. Is that correct?
āA. Right.
āQ. And you agreed to that factual basis as part of the conviction for conspiring to commit the robbery, correct?
āA. Right.
āQ. Do you recall Judge MiaƱo indicating to you and asking you certain questions about your plea? He said, āSir, Iām going to ask you some questions, thereās no rush. I want you to make sure you understand everything, 100 percent. If there is something you donāt understand, no matter how small or trivial it might appear, I want you to feel free to interrupt me and either consult with your attorney . . . who is seated there in the courtroom, and or interrupt me and ask me to explain it more clearly. All right, sir?ā
āA. Yes.
āQ. And he asked you about the crime of robbery and the facts that I alleged constitute it, and you agreed with those facts?
āA. Yes.
āQ. And he asked you [that] if you had any thoughts or concerns or questions, that you should interrupt him?
āA. Yes.
āQ. And you never interrupted him and said, āOh, Iām sorry .... What [the prosecutor] says is not correct because [the defendant] wasnāt there at all.ā You never said that to the judge, did you?
āA. I said it in the beginning.
āQ. In the beginning where?
āA. When you called me down there that day to talk to me, before I even went in front of theāum, whateverāit was [indicated] that if I was called uponāso, Iām not thinking that Iām going to be called to testify against this man, and, and lie, so I just agreed with whatever was said.
* * *
āQ. Mr. Brooks, isnāt it true that you and I never spoke until after your plea was entered?
āA. Right.
āQ. On January 27?
āA. Right.
āQ. And Judge MiaƱo indicated that, as a part of that plea, you would continue to express the factual basis of your plea, including testifying against [the defendant], and, after doing that and [after] he accepted that plea and continued the case for sentencing, it was only at that point in time that you and I ever discussed anything about what you would particularly testily to in this trial? Is that correct?
āA. Right.
āQ. And your lawyer . . . was there at the time?
āA. Right.
āQ. And my inspector . . . was there?
āA. Right.
āQ. Correct?
āA. Right.
āQ. And we had a discussion, and, at that time, we said to you, āWe only want you to recall and say what you recalled as truthfully as you can without*798 us putting any words in your mouth or telling you what to say.ā Do you recall that?
āA. Yes.
āQ. And you recall saying, there, with our attorney, in front of us, that thatās exactly what you were doing and thatās what you were going to do? Remember saying that to us?
āA. I remember saying, umātelling you what was happening, and you, being the good [prosecutor] that you are, just kept asking the same question and question. So I gave you what you wanted to hear.
āQ. Excuse me. Did you ever tell or say, at that conference, that Iām just going to tell you whatever you want to hear . . . ?
āA. No.
āQ. No, [you] never said that. In fact, during the course of our discussions, isnāt it true we had a discussion about [the defendant] going to trial on these factual bases with the evidence that the state had?
āA. Right.
āQ. And didnāt you express concern about [the defendant] going to trial based on the evidence, including your testimony that was anticipated to say he was there during the robbery and participated? Do you remember that?
*799 āA. I remember that and IāYour Honor, can I talk to you?ā
We do not address the partiesā dispute as to whether the Appellate Court properly concluded that the federal constitution is violated whenever the state presents āmaterial new mattersā on redirect examination and the defendant is not allowed to engage in recross-examination on such matters; (internal quotation marte omitted) State v. Moore, supra, 103 Conn. App. 6-7; because we conclude that no new matters were presented.
We also note that the parties did not address the issue in their briefs to the Appellate Court.
The dissent argues that, although the state might have suffered harm if the trial court had granted the motion to strike, the risk of prejudice arising out of the decision of the stateās own witness to assert his fifth amendment privilege in the middle of his testimony should lie with the state. See footnote 3 of the dissenting opinion. The question before this court, however, is not whether granting the defendantās motion to strike Brooksā redirect examination testimony would have been unfairly prejudicial to the state but whether the defendantās sixth amendment right of confrontation was violated when the court denied the motion to strike. Thus, the dissentās argument is irrelevant in light of our conclusion that the defendantās right of confrontation was not violated because no new issues were raised on redirect examination that the defense could not have explored during its cross-examination of Brooks.
In light of the harmful error analysis that follows, it is unnecessary to consider the stateās claim that the defense made a strategic choice not to object when Brooks invoked his privilege against self-incrimination.
Section 6-10 of the Connecticut Code of Evidence provides: āPrior Inconsistent Statements of Witnesses
ā(a) Prior inconsistent statements generally. The credibility of a witness may be impeached by evidence of a prior inconsistent statement made by the witness.
ā(b) Examining witness concerning prior inconsistent statement. In examining a witness concerning a prior inconsistent statement, whether written or not, made by the witness, the statement should be shown to or the contents of the statement disclosed to the witness at that time.
ā(c) Extrinsic evidence of prior inconsistent statement of witness. If a prior inconsistent statement made by a witness is shown to or if the contents of the statement are disclosed to the witness at the time the witness testifies, and if the witness admits to making the statement, extrinsic evidence of the statement is inadmissible, except in the discretion of the court. If a prior inconsistent statement made by a witness is not shown to or if the contents of the statement are not disclosed to the witness at the time the witness testifies, extrinsic evidence of the statement is inadmissible, except in the discretion of the court.ā
In view of the fact that we treated the unsworn witness claim in Coney as one of prosecutorial impropriety, we reject the stateās argument that such a claim is more properly regarded as one of unpreserved evidentiary error that should not be reviewed when, as in the present case, the defendant has failed to object at trial. Moreover, State v. Rowe, 279 Conn. 139, 900 A.2d 1276 (2006), on which the state relies, is distinguishable. In that case, the defendantās claim of prosecutorial impropriety related to the admission of testimony on direct examination that the defense had objected to for lack of a sufficient foundation but that the court had allowed. See id., 161. The prosecutor in Rowe later commented on the testimony during closing argument. Id., 151, 152. Weconcludedthatā[a]rguing on the basis of evidence explicitly admitted for that purpose cannot constitute prosecutorial [impropriety].ā Id., 152. Accordingly, the basis for the defendantās claim of error
The prosecutor argued: āMr. Brooks was consistent in saying that, at least at some time, he saw [the defendant] picking up a wallet, going through it and retaining that wallet. I suggest to you thatās [the victimās] wallet that he picked up as part of what occurred that evening.
āAnd itās also consistent, I suggest to you, with what Mr. Brooks told Judge Miano the day he entered his plea on January 27 of 2005, when Judge Miano said, ātruthfully tell me what occurred.ā And he indicated to Judge
āAnd, again, I suggest to you, I asked him, that was also consistent with what he told [me] and [the inspector] in the presence of his attorney when we were preparing for him to testify for the trial. And we suggest that, based [on] . . . that testimony and those representations to Judge Miano and us that that is reliable testimony . . . .ā
Thus, the stateās claim that plain error review is inapplicable in cases in which the court ultimately finds harmless error reflects a misunderstanding of the law. See, e.g., State v. Brown, 187 Conn. 602, 613-14, 447 A.2d 734 (1982); State v. Taken, 41 Conn. App. 147, 154-55, 675 A.2d 458, cert. denied, 237 Conn. 931, 677 A.2d 1374 (1996). A claim of plain error first requires a determination of whether an error has occurred and, upon finding error, a determination as to whether the error resulted in manifest injustice such that the judgment must be reversed. See, e.g., State v. Myers, 290 Conn. 278, 288-89, 963 A.2d 11 (2009).
Practice Book § 60-5 provides in relevant part: āThe court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .ā
Of these five witnesses, one witness said two or three men exited the van, three witnesses said three men exited the van, and one witness said three or four men exited the van. See footnote 4 of this opinion.