State v. Jose T.

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative. The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  State v. Jose T. D’AURIA, J., with whom ECKER, J., joins, dissent- ing in part. I agree with and join Justice McDonald’s thoughtful concurring and dissenting opinion, in which he cogently explains why the trial court’s improper jury instruction on the delayed disclosure of the child sexual assault victim likely misled the jury, requiring rever- sal of the judgment of conviction and a remand for a new trial. Although I need not reach the evidentiary claim of the defendant, Jose T., regarding the improper admission of the video recording of the victim’s forensic interview, I write separately to express my skepticism of the majority’s conclusion in part IV of its opinion that the defendant’s failure to challenge on appeal one of the alternative grounds on which the trial court might have relied to admit the forensic interview renders his claim moot because this court “cannot grant the defendant any practical relief.” Although the majority’s conclusion is based on our case law, of relatively recent vintage, which invokes the mootness doctrine to dispose of such claims on juris- dictional grounds, it is clear to me that the failure to brief an alternative ground under these circumstances should not constitute a jurisdictional defect, and our use of the mootness doctrine in this context confuses an appellate court’s subject matter jurisdiction with pru- dential considerations of the exercise of its discretionary authority to address issues that have not been raised or briefed adequately on appeal. Compare State v. Lester, 324 Conn. 519, 527, 153 A.3d 647 (2017) (“when an appellant challenges a trial court’s adverse ruling, but does not challenge all independent bases for that ruling, the appeal is moot”), with Blumberg Associates World- wide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 164–66, 84 A.3d 840 (2014) (when appellant does not challenge all independent bases for trial court’s ruling, appellate courts have discretionary authority to raise and decide those issues sua sponte in certain cir- cumstances), and In re Jose B., 303 Conn. 569, 582 n.8, 34 A.3d 975 (2012) (“[i]t is arguable that justiciability is not truly a question of subject matter jurisdiction”);  State v. Jose T. see, e.g., Schoenhorn v. Moss, 347 Conn. 501, 518, 298 A.3d 236 (2023) (Ecker, J., concurring in the judgment) (distinguishing between court’s subject matter jurisdic- tion and “prudential limitation” on court’s “authority to grant relief”). The point is easily demonstrated. If this court wanted to resolve the defendant’s evidentiary claim on the mer- its, I am unaware of any jurisdictional limitation that would prevent us from doing so. Generally, if an appel- late court in Connecticut considers a party’s briefing of a claimed error to be inadequate, the court will deem the claim abandoned. See, e.g., Traylor v. State, 332 Conn. 789, 805, 213 A.3d 467 (2019). But this approach is not mandatory, and, if the court believes that the unbriefed issue requires resolution, it may exercise its discretion to order additional briefing and decide the issue on the merits. See, e.g., Daniels v. Commissioner of Revenue Services, 354 Conn. 768, 776–77, 357 A.3d 672 (2026); Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 164–66. If the initial failure to brief an issue raised a jurisdictional bar to appellate consideration, our authority to review unpreserved claims on appeal, surveyed and described in Blumberg Associates Worldwide, Inc., would not exist. The subtle but important distinction between a court’s authority to act and prudential limitations on the exercise of that authority “is not merely a matter of semantics without practical effect.” Schoenhorn v. Moss, supra, 347 Conn. 522 (Ecker, J., concurring in the judgment). It is for good reason that “[t]he United States Supreme Court has cautioned against the profligate and indiscrimi- nate description of all limitations on judicial authority as mandatory and jurisdictional . . . .” (Internal quotation marks omitted.) Id., quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 510, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006). Such jurisdictional rulings should be avoided “precisely because labeling an issue as jurisdictional can have profound procedural implications that could affect the course, and even the outcome, of a case . . .  State v. Jose T. [a]nd jurisdictional rules are impervious to excuses like waiver or forfeiture. . . . Courts must also raise and enforce them sua sponte.” (Citations omitted; footnote omitted.) Schoenhorn v. Moss, supra, 522–23 (Ecker, J., concurring in the judgment); see also MOAC Mall Holdings, LLC v. Transform Holdco, LLC, 598 U.S. 288, 297, 143 S. Ct. 927, 215 L. Ed. 2d 262 (2023) (“The ‘jurisdictional’ label is significant because it carries with it unique and sometimes severe consequences. An unmet jurisdictional precondition deprives courts of power to hear the case, thus requiring immediate dismissal.”). In light of my conclusion that a new trial is required in the present case on other grounds, I need not more fully explore the fundamental tension in our jurispru- dence between the line of cases characterizing an appel- lant’s failure to “challenge all independent bases for [a trial court’s adverse] ruling” as implicating an appel- late court’s subject matter jurisdiction; State v. Lester, supra, 324 Conn. 527; and those cases characterizing such a failure as grounds to invoke prudential limita- tions on the exercise of an appellate court’s inherent discretionary authority “to act, sua sponte, on grounds not directly raised by the parties . . . .” (Internal quota- tion marks omitted.) Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 143. And, because the majority does not engage on the issue, it is sufficient to point out the existence of this doctrinal incongruity in the hope that it will be resolved soon in a future case. Regardless of the outcome of that future case, the mootness doctrine, in my view, is particularly unsuit- able for the present case because it is not at all clear that the unbriefed ground was actually a basis for the trial court’s evidentiary ruling. Following a lengthy colloquy in which the parties debated various potentially relevant hearsay exceptions, the trial court ultimately admitted the video on “several” unspecified grounds. Although it could be inferred that the rule of completeness was one of those grounds, the trial court never expressly relied  State v. Jose T. on that doctrine, and the trial transcript plausibly could be read to mean that the trial court relied only on the medical treatment hearsay exception and the rule per- mitting the admission of prior consistent statements for purposes of rehabilitation.1 When various possible bases for admitting evidence are discussed but only explic- itly admitted “on several grounds,” appellate counsel is placed in the untenable position of having to spend valuable space briefing a possible tertiary theory that counsel believes, in good faith, (1) was not the actual basis for the trial court’s decision, and (2) does not warrant serious consideration or analysis. See Fairfield Shores, LLC v. DeSalvo, 205 Conn. App. 96, 105–106, 256 A.3d 716 (2021) (declining to treat appeal as moot when it was ambiguous whether trial court had relied on unchallenged independent finding). In the defendant’s briefs, his appellate counsel focuses on the medical treatment exception—the only basis expressly identified as a ground for the trial court’s ruling. Counsel then argues that, “[t]o the extent that the trial court overruled [defense counsel’s] objection to the introduction of the forensic interview under the alternative theory that the prior consistent statements were admissible to rebut the impeachment of the wit- ness, it did so in error.” In other words, appellate counsel (reasonably, to my mind) was not certain that she had to address the prior consistent statements theory because it was not a clearly articulated basis of the trial court’s decision. In the defendant’s reply brief, appellate counsel 1 During the colloquy, the parties discussed four potential grounds for admitting the video: as a statement made for purposes of obtain- ing a medical diagnosis or treatment, as a business record, as a prior consistent statement, and under the rule of completeness. The trial court expressly relied on the medical diagnosis hearsay exception, and it expressly rejected the business record exception, as a basis for admis- sion. The court then stated that it was admitting the video on “several” unspecified grounds. In addition to medical diagnosis, that could have encompassed prior consistent statements, the rule of completeness, or both. See, e.g., AutoForm Engineering GmbH v. Engineering Technol- ogy Associates, Inc., Docket No. 10-14141, 2013 WL 5874547, *4 (E.D. Mich. October 30, 2013) (dictionaries variously define “several” as either “two or more” or “more than two” (internal quotation marks omitted)).  State v. Jose T. makes clear that she did not believe that the trial court had relied on the rule of completeness, such that she was obliged to address it.2 For these reasons, I believe the defendant is entitled to have his evidentiary challenge resolved on the merits. To decline to do so in the present case is especially unjust because the defendant’s two claims are interdependent. The video was a critical piece of evidence in the case. In a prosecution that came down to a credibility battle, the state’s case could have been weakened (and the erroneous jury instruction correspondingly more harmful) if the jury had not had the opportunity to watch an out-of-court version consisting of the complainant’s fifteen year old self making the allegations in a venue where she was not subject to confrontation and cross-examination. In my view, the majority should have reviewed the defendant’s claim regarding the admissibility of the video. I therefore respectfully dissent. 2 The defendant could have (and perhaps should have) moved for an articulation of the trial court’s ruling to gain clarity on the “several” grounds that it relied on in admitting the video. But we have never construed our articulation rules as posing a jurisdictional bar. In fact, the most recent iteration of the section of our rules of practice devoted to articulation provides in relevant part that “[t]he failure of any party on appeal to seek articulation pursuant to Section 66-5 shall not be the sole ground upon which the court declines to review any issue or claim on appeal. . . .” (Emphasis added.) Practice Book § 61-10 (b). Nor do we treat as jurisdictional our general rule prohibiting a party from raising an issue for the first time on appeal in his reply brief. Notably, the state, given the opportunity, has declined in its brief to this court to defend the trial court’s admission of the video at all, resting entirely on its contentions that the claim is moot and that any error in admitting the video was harmless.