State v. Collymore

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STATE OF CONNECTICUT v. ANTHONY

COLLYMORE

(AC 37703)

Gruendel, Lavine and Mullins, Js.*

Argued January 14—officially released October 11, 2016

(Appeal from Superior Court, judicial district of

Waterbury, Cremins, J.)

Susan M. Hankins, assigned counsel, for the appel-

lant (defendant).

Robert J. Scheinblum, senior assistant state’s attor-

ney, with whom, on the brief, were Maureen Platt,

state’s attorney, and Cynthia S. Serafini, senior assis-

tant state’s attorney, for the appellee (state).

Opinion

GRUENDEL, J. It is well established that the state

may immunize from prosecution a witness called in its

case-in-chief. See generally General Statutes § 54-47a.

The primary question in this appeal is whether the state,

after immunizing such a witness for testimony given

during the state’s case-in-chief, may decline to extend

that immunity to the same witness in connection with

his testimony during the defense case-in-chief. Here,

we conclude that the state was not required to grant

three prosecution witnesses additional immunity for

their testimony during the defense case-in-chief, and

that the court’s refusal during the defense case-in-chief

to compel those witnesses to testify when they invoked

their fifth amendment right to remain silent was proper

as to some testimony and harmless as to the rest.

Accordingly, because we conclude that the remainder

of the defendant’s claims—three evidentiary claims and

a claim that the court improperly penalized the defen-

dant at sentencing for electing to go to trial—also lack

merit, we affirm the judgment of conviction.

The defendant, Anthony Collymore, appeals from that

judgment, rendered after a jury trial, of (1) felony mur-

der in violation of General Statutes § 53a-54c; (2)

attempt to commit robbery in the first degree in viola-

tion of General Statutes §§ 53a-49 (a) (2) and 53a-134

(a) (2); (3) conspiracy to commit robbery in the first

degree in violation of General Statutes §§ 53a-48 (a)

and 53a-134 (a); and (4) criminal possession of a firearm

in violation of General Statutes § 53a-217 (a) (1).1

At trial, the jury reasonably could have found the

following facts. On January 18, 2010, the defendant and

two of his friends, Rayshaun Bugg and Vance Wilson

(Vance), were driving around Waterbury in a white,

four door, rental Hyundai that the defendant’s aunt and

uncle had lent to him, looking to rob someone. Eventu-

ally the three men drove into the Diamond Court apart-

ment complex, which comprises eight apartment

buildings. Halfway down the main road of the complex,

the men saw an expensive-looking, black Acura sport

utility vehicle (SUV) and decided to rob its driver.

They drove down a small road behind the apartments,

where the defendant and Vance pulled out their guns

and exited the Hyundai, saying that they were going to

rob the driver of the SUV. The defendant had a .38

revolver and Vance had a .357 revolver. Bugg drove to

the end of the small road and waited. The defendant

and Vance reached the SUV, saw two young children

running toward its driver, and decided to call off the

robbery. The SUV drove away.

The defendant and Vance then saw seventeen year

old John Frazier (victim) and decided to rob him. As

they were trying to rob him, he slapped away one of

their guns and ran toward his apartment, at the entrance

to the complex. The defendant and Vance both fired

shots at the victim.

Bugg drove up, the defendant and Vance ran over to

the Hyundai and got in, and they sped off to the apart-

ment of Jabari Oliphant, a close friend who lived in

Waterbury. There, the defendant and Vance explained

to Bugg and Oliphant what had just transpired at Dia-

mond Court, namely, that they had intended to rob the

man in the SUV but decided not to when they saw his

young children; instead, they tried to rob the victim and

shot him when he resisted. They then asked Oliphant

if he had something to clean their guns.

Police arrived at Diamond Court within minutes of

the shooting and found the fatally wounded victim in

front of his family’s apartment. An autopsy revealed

that a single .38 class bullet through the victim’s heart

had killed him.2 The defendant was arrested and tried.

At trial, the state’s case included more than thirty

witnesses, who testified over the course of fifteen days.

A jury found the defendant guilty, and the court imposed

a sentence of eighty-three years in prison. The defen-

dant now appeals from that conviction.

I

The defendant’s first claim is that the court improp-

erly failed to compel three defense witnesses to testify.

Specifically, the defendant argues that the court

improperly allowed the state to revoke the immunity

of three prosecution witnesses when they were called

as defense witnesses, then improperly allowed those

witnesses to invoke their fifth amendment right and

refuse to testify, and that these two errors combined to

unconstitutionally deny the defendant these witnesses’

exculpatory testimony.

A

The following additional facts and procedural history

are relevant to this claim. At the defendant’s trial, the

state granted immunity to three witnesses—Bugg,

Vance, and Oliphant—in exchange for their testimony

during the state’s case-in-chief. Although they were

called as prosecution witnesses, once they began to

testify, these witnesses repudiated prior statements

inculpating the defendant and testified so as to exoner-

ate him, reiterating their exculpatory testimony when

the defense cross-examined them. The defendant

sought to examine those witnesses again during his

case-in-chief but, this time, each witness invoked his

fifth amendment right and refused to answer many or

all questions asked.

The inculpatory evidence from these three witnesses

came from recorded statements they gave before trial

to various authorities, which the court admitted for

substantive purposes.3 The statements differed mark-

edly from the trial testimony, and each of the three

witnesses repudiated his statements at length during

the state’s direct examination and the defendant’s cross-

examination. We discuss each witness in turn.4

1

Bugg was the first of the three witnesses granted

immunity. When the state called him to testify in its

case-in-chief, he communicated through his attorney

that he would be invoking his fifth amendment right

against self-incrimination, fearing that the state might

bring drug charges against him for his activities on the

night of the shooting and perjury charges if he contra-

dicted the testimony he had given at the defendant’s

probable cause hearing. The state told the court: ‘‘Your

Honor, based on our review of the statute, the state

intends to give [Bugg] use immunity for any drug activity

he was engaged in on January 18, 2010. . . . [In addi-

tion] the state does not intend to prosecute [Bugg] for

any perjury that he may have committed at the probable

cause hearing.’’ The court informed Bugg that as a

result, ‘‘your [immunity under the statute] doesn’t exist,

because the state has removed [the possibility of prose-

cution that] would otherwise allow you to [claim the

immunity].’’ Bugg indicated that he understood. The

court instructed the jury that ‘‘under [§] 54-47a, [Bugg]

has been compelled to testify . . . .’’

a

Bugg’s Testimony during State’s Case-in-Chief

When the state examined Bugg during its case-in-

chief, he testified that on January 18, 2010, he, the

defendant and Vance drove to Diamond Court to buy

drugs from ‘‘the weed man,’’ and then drove to Oli-

phant’s apartment. Bugg acknowledged under ques-

tioning that this story differed from the police statement

he gave on February 10, 2011, and from his testimony

at the defendant’s probable cause hearing on August 30,

2011. In repudiating his earlier statements, he claimed,

however, that the police had forced him to sign the

statement after writing it themselves and that he had

testified falsely at the probable cause hearing in

exchange for a plea deal.

On cross-examination, Bugg reiterated that, on Janu-

ary 18, 2010, there was never any plan to rob someone,

they were ‘‘going to get some weed, that was the whole

thing,’’ and he did not see the defendant or Vance with

a gun that night. Bugg testified that he signed the police

statement in exchange for a plea deal and because the

police beat him, and that his testimony at the probable

cause hearing was part of the same plea deal.

b

Bugg’s Prior Inconsistent Statements

The state submitted the two statements made by Bugg

prior to his testimony at trial, both of which were admit-

ted into evidence for substantive purposes under 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).

First, the state introduced Bugg’s police statement,

made on February 10, 2011, through Lieutenant Michael

Slavin, one of the detectives who had taken it. Slavin

testified that Bugg had agreed with the statement he

had given to the police and that the police did not beat

or threaten Bugg. The court admitted the statement as

a full exhibit.

Bugg stated to the police that on January 18, 2010,

he, the defendant and Vance were driving around when

the defendant and Vance saw a black Acura SUV at

Diamond Court, pulled out their guns, told Bugg that

they were going to rob its driver, and got out of the

car. Bugg saw the defendant with a .38 revolver and

Vance with a .357. Soon, Bugg heard five or six gunshots

and saw the defendant and Vance running up. They got

into the Hyundai and told Bugg to drive, and he sped

away. When they arrived at Oliphant’s apartment, Vance

and the defendant explained to Bugg that ‘‘the guy in

the Acura had a baby in it, so they felt bad; instead

[they] took the young nigga.’’ The defendant told Bugg

that Vance ‘‘ha[d] his gun to the [victim’s] chest’’ while

they were trying to rob him, ‘‘and the [victim] tried to

grab it and they started to tussle over the gun, [and]

that is why he shot him.’’ While the defendant was

talking, Vance asked for some ammonia so that he could

clean off his gun.

Second, Bugg’s probable cause hearing statement,

made on August 30, 2011, was admitted into evidence

through the testimony of the court reporter who had

recorded and transcribed it. At the probable cause hear-

ing, Bugg had testified that the defendant and Vance

decided to rob the man in the Acura SUV, that they went

to do so, that he heard gunshots, that the defendant and

Vance came running to the Hyundai, that they got in

and he drove off, and that at Oliphant’s apartment they

had stated that they robbed someone else instead.

c

Bugg’s Testimony during Defense Case-in-Chief

When the defense told the court that it would be

calling Bugg as a witness, the state told the court that

‘‘the state’s granting of immunity to the—the prosecu-

tion witnesses does not extend to them as defense wit-

nesses . . . .’’ The court told Bugg that there was ‘‘an

issue as to whether or not the immunity that the state

gave [him] when [he was] here before applie[d] to [his]

testimony now, because now [he was] being called by

the defendant . . . and that issue, whether or not the

immunity attache[d] [was] unclear,’’ so ‘‘what [he]

should do is be guided by what [his] attorney,’’ who

would be sitting next to him during his testimony,

‘‘advise[d] [him] as to answering any of the questions.’’

When the state added that, ‘‘notwithstanding the court’s

position, it is the state’s that [Bugg] is not being given

. . . immunity for his testimony at this point in time,’’

the court clarified, ‘‘I want to be sure this is clear for

the record. I believe what I said to [Bugg] is that the

law is unclear as to whether or not the immunity he

was given by the state relates to his testimony as a

defense witness.’’

In response to questions about the night of January

18, 2010, Bugg testified that he was driving the Hyundai

that night, that he ‘‘thought they was going to get some

weed,’’ and that he did not know where the shooting

occurred because he ‘‘was in a car.’’ Bugg asserted his

fifth amendment rights when asked where he drove

after the defendant and Vance exited the car, and where

he was when he heard gunshots. Bugg also answered

defense counsel’s questions about various phone calls

he had made from prison and asserted his fifth amend-

ment rights for only one such question—after testifying

that his cousin, Marquise Foote, had stolen from him,

he asserted his fifth amendment rights when asked what

was stolen.

As to his testimony at the probable cause hearing,

Bugg agreed with the defense counsel that he had testi-

fied at that hearing ‘‘for the purpose of getting a deal,’’

but asserted his fifth amendment rights when asked if

his testimony at that hearing was true.

2

Vance was the second of the three witnesses granted

immunity. When the state called him to testify, he

waived his fifth amendment right against self-incrimina-

tion. The state later clarified that it had granted Vance

immunity ‘‘for a claim of false statement . . . .’’

a

Vance’s Testimony during State’s Case-in-Chief

During the state’s case-in-chief, Vance testified that

on January 18, 2010, he and Bugg accompanied the

defendant to Diamond Court to collect $3000 from

someone so that the defendant could repay Vance for

heroin Vance had given the defendant. Vance believed

that they were ‘‘going to ask [the man] where the money

is. That’s all.’’ When they arrived, that man drove off,

Vance punched the defendant in the jaw and, believing

that the defendant was ‘‘reaching for something,’’ Vance

shot at the defendant with a .357 Taurus Magnum

revolver as he ran away. Vance testified that he had

never seen the defendant with a gun but had seen him

with a knife. Soon, the defendant got back into the car

with Vance and Bugg, and they drove off.

The state asked Vance about his two prior accounts

of the shooting—his statement to police on February

22, 2011, and his guilty plea on February 21, 2012—

both of which differed from his trial testimony. Vance

claimed that he signed the police statement only

because he had been threatened with the death penalty

and that he entered his guilty plea in exchange for a

sentence of only thirty to fifty years’ incarceration.

When questioned about his police statement and guilty

plea, Vance repudiated both and persisted in his story

about driving to Diamond Court to collect money owed

him for heroin.

On cross-examination, Vance essentially reiterated

his testimony given on direct examination.

b

Vance’s Prior Inconsistent Statements

The state submitted the two statements made by

Vance prior to his testimony at trial, both of which were

admitted into evidence for substantive purposes under

State v. Whelan, supra, 200 Conn. 753.

First, the state introduced Vance’s police statement,

made on February 22, 2011, through Slavin, who testi-

fied that Vance had signed at the bottom of each page

and that no one threatened or forced him to do so. In

Vance’s statement, he said that on January 18, 2010, he,

the defendant and Bugg drove to Diamond Court where

they saw a black Acura SUV and decided to rob its

driver. Vance took out a .357 revolver, the defendant

took out a .38 revolver, and they exited the car and ran

up to the SUV, but they then saw two young children,

causing them ‘‘to let it go.’’ The SUV drove off. Vance

and the defendant then saw the victim walking by and

decided to rob him. The defendant stuck his gun in the

victim’s chest, saying, ‘‘you know what it is,’’ but the

victim slapped the gun away and took off running. The

defendant and Vance each fired two or three shots in

the victim’s direction before getting into their car and

driving to Oliphant’s apartment. There, the defendant

asked for Vance’s gun so he could dispose of it and

his gun.

Second, Vance’s guilty plea statement was admitted

into evidence through the testimony of the court moni-

tor who recorded and transcribed it. At the guilty plea

hearing, Vance had admitted that the defendant asked

him to commit a robbery; that he, the defendant, and

Bugg decided to rob the man in the SUV; that both he

and the defendant had guns; that the defendant’s gun

was a .38; that they decided against robbing the SUV

when they saw its driver had young children; that they

tried to rob the victim instead; that the defendant ran

up to the victim first and put a gun to his chest; that

Vance fired two or three shots when the victim ran;

that the defendant fired shots as well; and that back at

Oliphant’s apartment on Walnut Street, Vance gave his

gun to the defendant when asked.

c

Vance’s Testimony during Defense Case-in-Chief

When the defense called Vance as a witness, the state

asserted that ‘‘it is the state’s position that any testimony

that he gives at this portion of the proceeding is not

covered by . . . immunity.’’ The court repeated to

Vance the same advisement it had given Bugg concern-

ing immunity and told him to ‘‘be guided by the advice

of your attorney and that’s—that’s the way we

should proceed.’’

The court asked for an offer of proof outside the

presence of the jury, during which defense counsel

asked what the police said when they took Vance’s

statement, whether Vance shot the victim, and whether

Vance called a person named Karen Atkins in June,

2012. Vance replied: ‘‘Based on the advice of my coun-

sel, I’m going to invoke my fifth amendment right.’’

Although the defendant argued that Vance had no

valid fifth amendment right to assert, the state and

Vance’s attorney argued that Vance had yet to be sen-

tenced on a guilty plea to various charges arising from

the January 18, 2010 shooting; that the plea deal allowed

a sentence in the range of thirty to fifty years; and that

until Vance was sentenced his fifth amendment right

against self-incrimination continued to apply to the

events of January 18, 2010. The court held that Vance’s

fifth amendment right continued to apply until after

sentencing and that, because the state ‘‘sa[id] on the

record that [Vance] is not being immunized with respect

to his testimony as a defense witness,’’ therefore he

‘‘properly, in my view, invoked his fifth amendment

privilege.’’ Because it would be improper to call a wit-

ness for the sole purpose of having him invoke the fifth

amendment in front of the jury; see State v. Person,

215 Conn. 653, 660–61, 577 A.2d 1036 (1990), cert.

denied, 498 U.S. 1048, 111 S. Ct. 756, 112 L. Ed. 2d 776

(1991); the court excused Vance without having him

testify as a defense witness.

3

Oliphant was the third of the three witnesses granted

immunity in connection with the defendant’s trial. When

the state called him to testify, he communicated through

his attorney that he would be invoking his fifth amend-

ment right against self-incrimination. Oliphant’s attor-

ney discussed with the court Oliphant’s fear that the

state might bring false statement charges against him

if he contradicted his statement to police, and hindering

prosecution charges for his interactions with the defen-

dant, Vance, and Bugg after the shooting. After a collo-

quy with the prosecutor, the court told Oliphant, ‘‘you

don’t have a fifth amendment privilege because . . .

you have been given transactional immunity by the

state.’’ Oliphant said that he understood.

a

Oliphant’s Testimony during State’s Case-in-Chief

During questioning in the state’s case-in-chief, Oli-

phant testified that on the night of January 18, 2010,

he was at the apartment on Walnut Street when the

defendant, Vance, and Bugg came over. Privately, Vance

told Oliphant that he had just killed someone, and

wanted to kill Bugg and the defendant ‘‘because he

didn’t want to leave no witnesses.’’ A couple of days

later, Bugg told Oliphant that the defendant, Vance, and

he had been driving around drinking and smoking that

night, when Vance ‘‘saw somebody walking down the

street, hopped out [of] the car, [and] tried to rob him.

The [victim] fought [Vance] off and [Vance] shot [the

victim]. [Vance] jumped back in the car and they sped

off.’’ Oliphant further testified that the defendant never

talked about the shooting with him, and that Oliphant

had never seen the defendant with a gun, but that he

had seen Vance with a .357 caliber gun before the Janu-

ary 18, 2010 shooting.

Oliphant acknowledged that this story differed from

the statement he had given to the police on February

2, 2011. He claimed, however, that the police made him

sign that statement after beating him for hours, while he

was high on PCP and alcohol. When the state questioned

Oliphant line by line, he again repudiated his statement

and persisted in his story that he was told that Vance

got out of the car alone and robbed a passerby.

On cross-examination, defense counsel examined

Oliphant extensively about his statement, which Oli-

phant repudiated and said he signed only because police

beat him and a prosecutor ‘‘was offering [him] deals to

perjure [him]self . . . .’’

b

Oliphant’s Prior Inconsistent Statement

The state submitted Oliphant’s police statement into

evidence and the court admitted it for substantive pur-

poses under State v. Whelan, supra, 200 Conn. 753. The

state again called Slavin as a witness, who testified that

he had taken Oliphant’s police statement in the same

manner he had taken Bugg’s and Vance’s statements,

and that no one forced or threatened Oliphant to sign.

In the statement, Oliphant said that on the night of

January 18, 2010, at the apartment on Walnut Street,

Vance and the defendant both told Oliphant that they

had been driving around with Bugg looking to rob some-

one when they saw the victim in the Diamond Court

apartment complex. They told Oliphant that they tried

to rob the victim, but when he fought back and ran

toward his apartment, Vance shot him in the back. At

some point, Bugg also spoke with Oliphant and told

him that the defendant, Vance, and he were driving

around in the white car on January 18, 2010, looking

for someone to rob, that they saw the victim in the

Diamond Court apartment complex, and that Vance

shot the victim as he ran away. Oliphant previously had

seen Vance with a .357 caliber gun and the defendant

with a .38 caliber revolver.

c

Oliphant’s Testimony during Defense Case-in-Chief

When the defense tried to call Oliphant as a witness,

the state told the court that ‘‘it’s the state’s position

that the immunity that was given to Mr. Oliphant when

he testified as a prosecution witness in the state’s case-

in-chief . . . ended . . . and he has no immunity for

anything that goes on today.’’ The court advised Oli-

phant concerning immunity as it had Bugg and Vance

and told him to ‘‘be guided . . . by [his] attorney’s

advice . . . .’’ Oliphant’s attorney said that Oliphant

would not answer any questions ‘‘[b]ased on the repre-

sentation that immunity will not be extended to him

being called as a defense witness.’’

During an offer of proof outside the presence of the

jury, defense counsel asked several questions about

Oliphant’s February 2, 2011 statement to the police.

Oliphant invoked the fifth amendment when asked if

he was beaten on that date and what he had meant by

part of his trial testimony as a prosecution witness,5

but he did testify that, on February 2, 2011, he was

arrested with a man named Jamel, whom he had not

known for long. The state asked three questions on

cross-examination—how, and for how long, had Oli-

phant known Jamel before their arrest; and did they

have narcotics when arrested. Oliphant asserted his

fifth amendment rights in response to each question.

The state argued that Oliphant could not selectively

assert his fifth amendment rights, testifying about a

subject for the defense but refusing to answer the state’s

questions about the same subject. Defense counsel

agreed that if Oliphant did so, then he would be unavail-

able for cross-examination and so the court would have

to strike his testimony. See State v. Marsala, 44 Conn.

App. 84, 92–93, 688 A.2d 336 (court properly struck

defendant’s entire testimony where he refused to

answer questions on cross-examination), cert. denied,

240 Conn. 912, 690 A.2d 400 (1997). The court held that,

because Oliphant ‘‘indicated he is not going to respond

to any of the questions asked on cross-examination by

the state,’’ it would be futile to call him as a witness

only to have his testimony stricken. Accordingly, the

court released Oliphant from the subpoena with which

he had been served, and he did not testify as a

defense witness.

B

With that factual history in mind, we now turn to the

defendant’s first claim on appeal, which is that the court

improperly (1) allowed the state to revoke the immunity

of Bugg, Vance, and Oliphant, three prosecution wit-

nesses, when they were called as defense witnesses;

and (2) failed to compel those three witnesses to testify

when they asserted their fifth amendment rights as

exculpatory testimony. We address each argument in

turn.

1

The defendant argues that the court improperly

allowed the state to ‘‘revoke’’ its grant of immunity to

Bugg, Vance, and Oliphant when they were called as

defense witnesses and, that the revocations violated

the defendant’s rights to due process and a fair trial

under the fourteenth amendment to the United States

constitution, as well as his rights to compulsory process

and to present a defense under the sixth amendment6

to the United States constitution.7 As we have noted,

the state initially had granted each witness immunity

during the prosecution’s case-in-chief, pursuant to § 54-

47a.8 When the defendant called those same witnesses

for his case-in-chief, the state told each of them that

they no longer had immunity.

The defendant characterizes this as a ‘‘revocation’’

of immunity and argues that such a revocation violated

his constitutional rights because it effectively prevented

the witnesses from testifying. By contrast, the state

argues that it ‘‘did not revoke grants of immunity to any

of its witnesses’’ and that the real question is whether

the court properly held that the state need not grant

additional immunity to those witnesses. (Emphasis

added.) We agree with the state that, because it did not

revoke the witnesses’ immunity and the court properly

held that the state was under no obligation to grant

them additional immunity, the defendant’s constitu-

tional rights were not violated.

First, to the extent that the defendant claims that the

court violated his constitutional rights by misapplying

§ 54-47a to permit the state to revoke immunity pre-

viously granted under § 54-47a, we must interpret that

statute. ‘‘To the extent that the [defendant’s] claim

requires us to interpret the requirements of [a statute],

our review is plenary.’’ In re Nevaeh W., 317 Conn. 723,

729, 120 A.3d 1177 (2015). We begin with the statute’s

text and relationship to other statutes, and consider

other evidence of its meaning only if the text itself is

either ambiguous or yields absurd results. Id., 729–30.

Section 54-47a has two parts. Section 54-47a (a) pro-

vides in relevant part: ‘‘Whenever in the judgment of

. . . a state’s attorney . . . the testimony of any wit-

ness . . . in any criminal proceeding involving . . .

felonious crimes of violence . . . or any other class A,

B or C felony . . . [is necessary to obtain] sufficient

information as to whether a crime has been committed

or the identity of the person or persons who may have

committed a crime . . . [and] is necessary to the public

interest . . . the state’s attorney . . . may, with

notice to the witness, after the witness has claimed his

privilege against self-incrimination, make application

to the court for an order directing the witness to tes-

tify . . . .’’

Section 54-47a (b) provides in relevant part: ‘‘Upon

the issuance of the order such witness shall not be

excused from testifying . . . on the ground that the

testimony . . . may tend to incriminate him or subject

him to a penalty or forfeiture. No such witness may be

prosecuted or subjected to any penalty or forfeiture

for or on account of any transaction, matter or thing

concerning which he is compelled to testify . . . and

no testimony . . . so compelled, and no evidence dis-

covered as a result of or otherwise derived from testi-

mony . . . so compelled, may be used as evidence

against him in any proceeding, except that no witness

shall be immune from prosecution for perjury or con-

tempt committed while giving such testimony . . . .’’9

The plain language of § 54-47a (b) thus provides that,

if a witness is compelled to testify about a ‘‘transaction,

matter or thing,’’ then the witness cannot be ‘‘prose-

cuted or subjected to any penalty or forfeiture for or on

account of’’ that transaction, matter, or thing. Nothing in

the statute suggests that a prosecutor may later revoke

that immunity, before or after the witness testifies, and

decide to prosecute the witness after all. Indeed, if

the state had such power, then the immunity promised

under § 54-47a would be an empty gesture. We conclude

that, in the absence of special circumstances, once the

state grants a witness immunity under § 54-47a, it

plainly lacks the power to revoke that immunity.

Accordingly, to the extent that Bugg, Vance, or Oliphant

was compelled under § 54-47a to testify about a transac-

tion, matter, or thing during the state’s case-in-chief,

then, from that point on, the state could no longer

prosecute them for or on account of it.10

The state argues, and we agree, that it ‘‘did not revoke

grants of immunity to any of its witnesses.’’ (Emphasis

added.) Given the constraints imposed by § 54-47a, the

state’s comments to the three witnesses are best under-

stood not as a ‘‘revocation’’ of the immunity that they

already had, but rather as a refusal to grant those wit-

nesses additional immunity.11 To wit, the state did not

wish to grant them both transactional immunity from

prosecution for any transactions discussed for the first

time during the defense case-in-chief, and use or deriva-

tive use immunity that would bar the state from using

their defense testimony—or evidence derived from it—

in any potential prosecutions against them that the state

could still legally pursue.

The question is not one of revocation. Rather, the

question is whether any of the constitutional provisions

cited by the defendant required the state to grant that

additional immunity to those witnesses.

We therefore turn to whether the state was required

to grant the three witnesses additional immunity for

their testimony as defense witnesses. ‘‘As a threshold

matter, we must first determine the applicable standard

of review that governs our examination of the defen-

dant’s claims. The issue of whether a defendant’s rights

to due process and compulsory process require that a

defense witness be granted immunity is a question of

law and, thus, is subject to de novo review. . . .

‘‘[A] defendant has a right under the compulsory pro-

cess and due process clauses to present [his] version

of the facts as well as the prosecution’s to the jury

so [that] it may decide where the truth lies. . . . The

compulsory process clause of the sixth amendment gen-

erally affords an accused the right to call witnesses

whose testimony is material and favorable to his

defense . . . .

‘‘We begin our analysis with the statutory provision

concerning prosecutorial immunity for witnesses. [Sec-

tion] 54-47a authorizes the prosecution to grant immu-

nity to state witnesses under certain circumstances.

We explicitly have held that § 54-47a confers no such

authority upon the courts with regard to defense wit-

nesses. . . . Indeed, this court has held repeatedly that

there is no authority, statutory or otherwise, enabling

a trial court to grant immunity to defense witnesses.

. . . We have no occasion to revisit those holdings

today.

‘‘We recognize that other courts have held that under

certain compelling circumstances the rights to due pro-

cess and compulsory process under the federal consti-

tution require the granting of immunity to a defense

witness. The federal Circuit Courts of Appeals have

developed two theories pursuant to which the due pro-

cess and compulsory process clauses entitle defense

witnesses to a grant of immunity. They are the effective

defense theory, and the prosecutorial misconduct the-

ory. . . .

‘‘Under the effective defense theory . . . the trial

court has the authority to grant immunity to a defense

witness when it is found that a potential defense witness

can offer testimony which is clearly exculpatory and

essential to the defense case and when the government

has no strong interest in withholding . . . immunity

. . . . The Third Circuit [Court of Appeals] has held

explicitly that under the effective defense theory

[i]mmunity will be denied if the proffered testimony is

found to be ambiguous [or] not clearly exculpatory

. . . .

‘‘The prosecutorial misconduct theory of immunity

is based on the notion that the due process clause

[constrains] the prosecutor to a certain extent in [its]

decision to grant or not to grant immunity. . . . Under

this theory, however, the constraint imposed by the due

process clause is operative only when the prosecution

engages in certain types of misconduct, which include

forcing the witness to invoke the fifth amendment or

engaging in discriminatory grants of immunity to gain a

tactical advantage, and the testimony must be material,

exculpatory and not cumulative, and the defendant

must have no other source to get the evidence.’’ (Citation

omitted; emphasis added; internal quotation marks

omitted.) State v. Kirby, 280 Conn. 361, 403–404, 908

A.2d 506 (2006).

Our Supreme Court previously has declined to decide

whether either of these theories is correct, in the

absence of circumstances that would then warrant

reversal of a judgment on that basis. Id., 405. The pre-

sent case again provides no occasion to reach the cor-

rectness of either theory.

To succeed under the effective defense theory, a

defendant must show that the testimony at issue was

‘‘ ‘essential’ ’’ to the defense. Id., 404; see, e.g., United

States v. MacCloskey, 682 F.2d 468, 475, 479 (4th Cir.

1982) (reversing judgment of conviction where ‘‘pri-

mary defense witness’’ refused to answer some ques-

tions before jury as to certain directly relevant details

of alleged conspiracy, although ‘‘testimony she gave in

. . . voir dire was detailed and contradicted, or offered

innocent explanations to, [the] damaging testimony’’ of

state’s primary witness). Here, by contrast, there is no

reason to believe that the three witnesses’ testimony

during the defense case-in-chief would have been any-

thing other than a rehash of their prosecution testi-

mony, which, if believed, already tended to exonerate

the defendant from each of the crimes charged. Each

testified at length, favorably to the defendant, both

when the state examined them during its case-in-chief

and when the defendant cross-examined them.

Although it is possible that the witnesses would have

provided additional exculpatory details when called as

defense witnesses, nothing in the record indicates what

those details would have been.12 See United States v.

Triumph Capital Group, Inc., 237 Fed. Appx. 625, 630

(2d Cir. 2007) (‘‘[N]o one knows what [the witnesses]

would have testified to since they refused to comment

on the matter. [The defendant’s] speculation that [they]

would have testified in [his] favor is not sufficient to

prove that their testimony would have been exculpa-

tory.’’). The defendant has failed to show that any addi-

tional testimony the three witnesses may have provided

as defense witnesses was essential to his defense.

Likewise, under the prosecutorial misconduct theory,

a defendant must show that the testimony at issue was

‘‘not cumulative’’ and that he had ‘‘no other source to

get the evidence.’’ State v. Kirby, supra, 280 Conn. 404.

The defendant has provided no indication of what new

exculpatory testimony he would have elicited from

these three witnesses during his case-in-chief. At oral

argument before this court, the defendant’s counsel was

specifically asked what additional details the defendant

was prevented from eliciting from these three wit-

nesses, and she provided none. Accordingly, the defen-

dant has failed to show that the witnesses’ excluded

testimony would not have been cumulative and that he

had no other source to get the evidence.

We thus conclude that the state was not constitution-

ally required to grant additional immunity to Bugg,

Vance, and Oliphant when they testified as defense wit-

nesses.

2

The defendant also argues that the court improperly

failed to compel Bugg, Vance, and Oliphant to testify

when they asserted their fifth amendment rights as

defense witnesses, because at that point, as a result of

the immunity that the state had granted them during

its case-in-chief, they were no longer exposed to prose-

cution and thus had no valid fifth amendment right to

assert.13 We conclude that the court properly refused

to compel these witnesses to answer some questions,

that the court improperly refused to compel them to

answer other questions, and that any error was harm-

less because all of the testimony improperly excluded

was cumulative.

We begin with our standard of review. ‘‘A ruling on

the validity of a witness’ fifth amendment privilege is

an evidentiary determination that this court will review

under the abuse of discretion standard. . . . It is well

settled that the trial court’s evidentiary rulings are enti-

tled to great deference. . . . The trial court is given

broad latitude in ruling on the admissibility of evidence,

and we will not disturb such a ruling unless it is shown

that the ruling amounted to an abuse of discretion.’’

(Internal quotation marks omitted.) State v. Luther, 152

Conn. App. 682, 699, 99 A.3d 1242, cert. denied, 314

Conn. 940, 108 A.3d 1123 (2014).

‘‘[W]hen an improper evidentiary ruling is not consti-

tutional in nature, the defendant [also] bears the burden

of demonstrating that the error was harmful. . . .

[W]hether [the improper exclusion of a witness’ testi-

mony] is harmless in a particular case depends upon a

number of factors, such as . . . whether the testimony

was cumulative . . . [and] the extent of cross-exami-

nation otherwise permitted . . . . Accordingly, a non-

constitutional error is harmless when an appellate court

has a fair assurance that the error did not substantially

affect the verdict.’’ (Internal quotation marks omitted.)

State v. Payne, 303 Conn. 538, 558–59, 34 A.3d 370

(2012).

‘‘The standard for determining whether to permit

invocation of the privilege against self-incrimination is

well established. To reject the invocation it must be

perfectly clear, from a careful consideration of all the

circumstances in the case, that the witness is mistaken,

and that the answer[s] cannot possibly have [a] ten-

dency to incriminate the witness. . . . The right to the

privilege does not depend upon the likelihood of prose-

cution but upon the possibility of prosecution.’’ (Cita-

tions omitted; emphasis in original; internal quotation

marks omitted.) State v. Giraud, 258 Conn. 631, 640,

783 A.2d 1019 (2001).

Here, all but three of the questions as to which Bugg,

Vance, and Oliphant asserted their fifth amendment

rights during the defendant’s case-in-chief were ques-

tions that they had already answered during the state’s

case-in-chief. The three new questions were: (1) to

Bugg, what his cousin stole from him; (2) to Vance,

whether he called a person named Karen Atkins in

June, 2012; and (3) to Oliphant, what he meant when

he testified during the state’s case-in-chief that he felt

guilty about Vance.

As to the three new questions, we are unable to con-

clude that the court abused its discretion in sustaining

the witnesses’ invocation of their fifth amendment

rights. We note that ‘‘[i]n appraising a fifth amendment

claim by a witness, a judge must be governed as much

by his personal perception of the peculiarities of the

case as by the facts actually in evidence.’’ (Internal

quotation marks omitted.) Martin v. Flanagan, 259

Conn. 487, 495–96, 789 A.2d 979 (2002). ‘‘To sustain the

privilege, it need only be evident from the implications

of the question, in the setting in which it is asked, that

a responsive answer to the question or an explanation of

why it cannot be answered might be dangerous because

injurious disclosure could result.’’ (Internal quotation

marks omitted.) Id., 495. As to the first question, the

nature of what Bugg’s cousin stole from him could have

incriminated Bugg if the item was contraband. As to

the second and third questions, the record sheds little

light on their significance. Accordingly, on this record,

we cannot second-guess the determination of the trial

court. We conclude that the court did not abuse its

discretion in sustaining the witnesses’ invocation of

their fifth amendment rights when they were asked

about these three transactions, as to which they

lacked immunity.14

By contrast, as to those questions that the witnesses

had already answered during the state’s case-in-chief,

§ 54-47a foreclosed any possibility of prosecution for

the transactions, matters, and things at issue. Accord-

ingly, further questions about those same issues did not

implicate the witnesses’ fifth amendment right against

self-incrimination.15 The court abused its discretion in

sustaining the witnesses’ invocations of their fifth

amendment rights as to those issues.16

We conclude, however, that this error was harmless.17

Here, each witness already had testified and been cross-

examined at length, on the same issues, during the

state’s case-in-chief. We thus conclude that the defen-

dant has failed to meet his burden of proving that the

improper exclusion of these witnesses’ testimony to

the same effect during his case-in-chief was harmful.

Because the court did not permit the state to revoke

these witnesses’ immunity and properly held that the

state need not grant them additional immunity when

they were called as defense witnesses, and because

the court’s failure to compel these three witnesses to

reiterate testimony as defense witnesses was harmless,

the defendant’s first claim fails.

II

The defendant’s second group of claims entails three

alleged evidentiary errors: (1) that the court improperly

admitted uncharged misconduct evidence suggesting

that the defendant had a gun one week before the shoot-

ing and four months after the shooting; (2) that the court

improperly admitted a prior inconsistent statement by

Bugg to impeach his trial testimony that he had never

discussed the shooting with his cousin; and (3) that the

court improperly permitted the state’s lead detective,

Slavin, to testify, in the course of describing how the

investigation proceeded, about various witnesses’ state-

ments to the police.

We begin by setting forth the standard of review. ‘‘We

review the trial court’s decision to admit evidence, if

premised on a correct view of the law . . . for an abuse

of discretion.’’ State v. Saucier, 283 Conn. 207, 218, 926

A.2d 633 (2007); see also State v. Douglas F., 145 Conn.

App. 238, 246, 73 A.3d 915 (because ‘‘[t]he trial court

has broad discretion in ruling on the admissibility . . .

of evidence . . . [t]he trial court’s ruling on evidentiary

matters will be overturned only upon a showing of a

clear abuse of the court’s discretion’’ [internal quotation

marks omitted]), cert. denied, 310 Conn. 955, 81 A.3d

1181 (2013). ‘‘In determining whether there has been

an abuse of discretion, every reasonable presumption

should be given in favor of the trial court’s rulings on

evidentiary matters.’’ (Internal quotation marks omit-

ted.) State v. Gauthier, 140 Conn. App. 69, 79–80, 57

A.3d 849, cert. denied, 308 Conn. 907, 61 A.3d 1097

(2013).

‘‘[W]hen an improper evidentiary ruling is not consti-

tutional in nature, the defendant bears the burden of

demonstrating that the error was harmful. . . .

[W]hether [the improper admission of a witness’ testi-

mony] is harmless in a particular case depends upon a

number of factors, such as the importance of the wit-

ness’ testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of

evidence corroborating or contradicting the testimony

of the witness on material points, the extent of cross-

examination otherwise permitted, and, of course, the

overall strength of the prosecution’s case. . . . Most

importantly, we must examine the impact of the

[improperly admitted] evidence on the trier of fact and

the result of the trial. . . . [T]he proper standard for

determining whether an erroneous evidentiary ruling

is harmless should be whether the jury’s verdict was

substantially swayed by the error. . . . Accordingly, a

nonconstitutional error is harmless when an appellate

court has a fair assurance that the error did not substan-

tially affect the verdict.’’ (Internal quotation marks omit-

ted.) State v. Payne, supra, 303 Conn. 558–59.

We address each of the defendant’s three evidentiary

claims in turn.

A

The defendant first challenges the court’s admission

of testimony from two witnesses about whether he pos-

sessed a gun on two occasions other than the night of

the shooting, arguing that such evidence of uncharged

misconduct was more prejudicial than probative. Even

if the court improperly admitted this testimony, which

we do not conclude, nevertheless, it was harmless.

In this regard, the defendant first challenges the

court’s admission of a portion of Oliphant’s testimony

during which the prosecutor asked if Oliphant had told

the police about an incident on January 9, 2010, when

the defendant allegedly shot someone in the groin at a

bar fight. Initially, the state sought to admit this testi-

mony for substantive purposes, to prove that the defen-

dant possessed a gun nine days before the Diamond

Court robbery and thus had the means to commit the

Diamond Court robbery. The defense objected that it

was more prejudicial than probative. The court ruled

that the state could ask Oliphant only whether the

defendant had a gun on January 9 because gun posses-

sion then was relevant to ‘‘an element of the fifth count

of the information,’’18 and ‘‘[t]hat is an exception where

[the evidence is relevant to] an element of the crime,

[and that] is one of the reasons why uncharged miscon-

duct can be allowed.’’ See Conn. Code Evid. (2009) § 4-

5 (b) (‘‘[e]vidence of other crimes, wrongs or acts of a

person is admissible . . . to prove . . . an element of

the crime’’).

The state, however, sought to ask about the details

of the January 9, 2010 incident as well, to the extent

that Oliphant had described them in his statement to

the police but repudiated that statement at trial. The

prosecutor made an offer of proof outside the presence

of the jury, during which she examined Oliphant line

by line on his police statement about the January 9

incident. Oliphant categorically denied that he ever gave

such a statement and added that he had ‘‘never seen [the

defendant] with a gun.’’ After the proffer, the defense

renewed its objection to the testimony. The court ruled

that it would allow the questions ‘‘only for purposes of

[the] impeachment and credibility of Mr. Oliphant,’’ and,

when the jury returned to the courtroom, the court

instructed it accordingly. The state then examined Oli-

phant line by line on the statement he had given to

police about the defendant shooting another person in

the groin one week before the Diamond Court shooting.

Oliphant categorically denied giving such a statement

to the police and added that he had ‘‘never seen [the

defendant] with a gun ever.’’

The second piece of uncharged misconduct evidence

that the defendant claims the court improperly admitted

is the portion of his uncle Omar’s testimony in which

Omar said that he saw the defendant with a gun on

May 8, 2010. Initially, the state sought to admit the

testimony to prove that the defendant possessed a gun

four months after the Diamond Court shooting; the

defense objected that such testimony was more prejudi-

cial than probative; and the court ruled that the testi-

mony was admissible under § 4-5 (b) of the (2009)

Connecticut Code of Evidence as relevant to an element

of the fifth count of the information.19 After an extensive

offer of proof by the state, the defense also objected that

the testimony was not relevant to the gun possession

charge in count five because the May 8, 2010 gun was

not the gun that the defendant allegedly possessed on

January 18, 2010. The state argued that the defendant’s

possession of a different gun four months later was still

relevant to whether the defendant possessed a gun on

the night of the Diamond Court shooting. The court

ruled that Omar’s testimony that the defendant pos-

sessed a different gun four months after the Diamond

Court shooting was not relevant to establish an element

of the fifth count of the information but was admissible

together with the testimony about gun possession on

January 9, 2010, and January 18, 2010, as evidence of

‘‘a system of criminal activity’’ of gun possession

engaged in by the defendant, offered to prove the defen-

dant’s intent to rob the victim at Diamond Court.20 See

Conn. Code Evid. (2009) § 4-5 (b) (‘‘[e]vidence of other

crimes, wrongs or acts of a person is admissible . . .

to prove . . . a system of criminal activity’’). Omar

then testified that he saw the defendant with a handgun

on May 8, 2010. In its jury charge, the court instructed

the jury that the testimony about gun possession on

May 8, 2010, was admitted ‘‘solely to show or establish

a system of criminal activity being engaged in by the

defendant.’’

Even if the court had improperly admitted both of

these portions of testimony, which we do not conclude,

we hold that the defendant has nevertheless failed to

carry his burden of proving that the jury’s verdict was

substantially swayed by its admission. See, e.g., State

v. Sanseverino, 287 Conn. 608, 637, 949 A.2d 1156 (2008)

(‘‘[e]ven if we were to assume, without deciding, that

the trial court improperly admitted the evidence . . .

we conclude that the defendant failed to meet his bur-

den of providing that such impropriety was harmful’’),

overruled in part on other grounds by State v. DeJesus,

288 Conn. 418, 437, 953 A.2d 45 (2008), and superseded

in part after reconsideration by State v. Sanseverino,

291 Conn. 574, 579, 969 A.2d 710 (2009), overruled in

part on other grounds by State v. Payne, 303 Conn. 538,

548, 34 A.3d 370 (2012).

The defendant acknowledges that his claim is eviden-

tiary, not constitutional, in nature. ‘‘[W]hen an improper

evidentiary ruling is not constitutional in nature, the

defendant bears the burden of demonstrating that the

error was harmful. . . . [W]hether [the improper

admission of a witness’ testimony] is harmless in a

particular case depends upon a number of factors, such

as the importance of the witness’ testimony in the prose-

cution’s case, whether the testimony was cumulative,

the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material

points, the extent of cross-examination otherwise per-

mitted, and, of course, the overall strength of the prose-

cution’s case. . . . Most importantly, we must examine

the impact of the [improperly admitted] evidence on

the trier of fact and the result of the trial. . . . [T]he

proper standard for determining whether an erroneous

evidentiary ruling is harmless should be whether the

jury’s verdict was substantially swayed by the error.

. . . Accordingly, a nonconstitutional error is harmless

when an appellate court has a fair assurance that the

error did not substantially affect the verdict.’’ (Internal

quotation marks omitted.) State v. Payne, supra, 303

Conn. 558–59.

First, this testimony was not particularly important

to the prosecution’s case. Whether the defendant had

a gun on January 9, 2010,21 or on May 8, 2010, was

ancillary to the central issue of the case, namely,

whether the defendant participated in the robbery and

shooting of the victim on January 18, 2010. The state

presented ample evidence of the robbery, as discussed

subsequently in connection with the strength of the

prosecution’s case.

Second, evidence that the defendant possessed a gun

weeks before or months after the shooting was largely

superfluous because there was also evidence that he

possessed a gun on the night of the shooting.

Third, as to corroborating or contradictory evidence,

multiple witnesses either testified or admitted in state-

ments to the police, which the state previously had

submitted into evidence, that they saw the defendant

with a gun on the night of the shooting or on other

nights, while several witnesses—most notably Bugg and

Vance, in direct contradiction to their police state-

ments—testified that they had never seen the defendant

with a gun. Neither Oliphant’s nor Omar’s testimony

was unique or pivotal in this regard.

Fourth, the defendant was able adequately to cross-

examine both Oliphant and Omar. Oliphant testified

favorably to the defense during both direct and

cross-examination.

Fifth and finally, the prosecution’s case was strong.

The state’s case comprised more than thirty witnesses

and more than 200 exhibits over the course of fifteen

days of testimony.

The victim’s mother testified that, from the family

apartment, she saw two people with physiques similar

to the defendant and Vance both shoot at the victim at

approximately 9:40 p.m. on January 18, 2010. The vic-

tim’s brother testified that, from the family apartment,

he saw the defendant and a second man both shoot at

the victim a little after 9:30 p.m. on January 18, 2010.

The state submitted the prior statements and testi-

mony of the defendant’s two accomplices, Bugg and

Vance, both of whom initially confessed to the armed

robbery in those statements and testimony. Although

they recanted their confessions once they received plea

deals and testified favorably to the defense at trial, the

state impeached them with phone call recordings in

which Bugg seemingly asked various relatives to help

him coordinate his testimony with Vance, saying at one

point that Vance had agreed to ‘‘take the whole charge’’

in exchange for some money.

Oliphant and his then girlfriend, Sade Stevens, both

gave statements to police that they had heard the defen-

dant and Vance confess to robbing and shooting the

victim when they came to Oliphant’s apartment on the

night of January 18, 2010, although they, too, partially

recanted those statements at trial and claimed instead

that Vance alone confessed that he robbed and shot

the victim.

The state’s crime scene technicians and its ballistics

expert determined that the four bullet cores recovered

from the crime scene plus the intact bullet recovered

from the victim’s body were .38 class bullets, fired from

a .38 Special revolver, a .357 Magnum revolver, or a

nine millimeter pistol. Because pistols eject bullet cas-

ings when fired, however, the state’s ballistics expert

testified that the lack of casings found at the crime

scene was consistent with the shots being fired from

a revolver. Multiple witnesses either testified or gave

statements to police that were admitted into evidence

to the effect that the defendant had a .38 revolver and

that Vance had a .357 revolver, which they had with

them on the night of the shooting.

Phone records showed that, at approximately the

time of the shooting, the defendant’s cell phone

reflected several calls from the area of Diamond Court.

Various neighbors saw a four door white car driving

through Diamond Court just before the shooting and

speeding out of Diamond Court just after the shooting.

The defendant’s aunt testified that, on the night of the

shooting, she had lent the defendant her rental car—a

four door, white Hyundai—and that they returned the

car to the rental company the next day.

The defendant himself testified that, on the night of

the shooting, he and Vance dressed all in black and

drove to Diamond Court with Bugg in the defendant’s

white rental car; that they parked behind the apart-

ments; that the defendant and Vance exited the car and

walked first toward the man in the SUV, then toward

the victim after they realized the man in the SUV had

children; that Vance fired shots in the victim’s direction;

that Bugg pulled up in the car; that the defendant and

Vance got in; and that Bugg drove off. The defendant

claimed, however, that they never agreed or tried to rob

anyone; Vance had gotten into an unrelated altercation

with the victim, on his own, and shot him for that

reason. The state introduced into evidence phone call

recordings in which the defendant repeatedly told his

mother to convince one of the prosecution witnesses

to invoke her fifth amendment rights if called to testify.

As a result, we conclude that the defendant has failed

to carry his burden of proving that the jury’s verdict

was substantially swayed by the admission of evidence

that he had a gun one week before or several months

after the shooting.

B

As to Bugg’s prior inconsistent statement, the defen-

dant challenges the court’s admission of the testimony

of Bugg’s cousin, Foote, about Bugg’s confession to him

during a car ride several weeks after the shooting. We

conclude that the court properly admitted that testi-

mony for the limited purpose of impeaching Bugg’s

credibility.

The following additional facts and procedural history

are relevant to this claim. Initially, the state sought to

admit the challenged testimony for substantive pur-

poses, arguing that, although it was hearsay, it fell under

the coconspirator exception to the prohibition on hear-

say,22 but the state later conceded that the coconspirator

exception did not apply. Instead, the state sought to

admit the testimony solely for impeachment purposes,

as extrinsic evidence of a prior inconsistent statement

by Bugg. The state argued that, under the Connecticut

Code of Evidence, ‘‘it’s within the judicial discretion of

the trial court whether to admit the impeaching state-

ments where no foundation has been laid.’’ See Conn.

Code Evid. § 6-10 (c) (‘‘[i]f a prior inconsistent state-

ment made by a witness is not . . . disclosed to the

witness at the time the witness testifies, and if the

witness admits to making the statement, extrinsic evi-

dence of the statement is inadmissible, except in the

discretion of the court’’ [emphasis added]). The defense

objected to the testimony as hearsay and argued that,

if the state wished to use it as an inconsistent statement,

then it should have disclosed it to Bugg when he tes-

tified.

After reviewing the transcript of Bugg’s earlier trial

testimony, the court noted that Bugg twice had denied

confessing to Foote, once when asked directly if ‘‘there

came a point in time where [he] told [Foote] what had

happened on Diamond Court’’—Bugg replied, ‘‘[n]o’’—

and, second, when Bugg was asked if his statement to

police that ‘‘[t]he only one [he] told about this [was

his] cousin Marquis[e] Foote’’ was true—Bugg replied,

‘‘[n]o.’’ The court ruled that Foote could testify to Bugg’s

prior inconsistent statement, but that such testimony

would be admissible only for the limited purpose of

impeaching Bugg.

Accordingly, before Foote testified to his conversa-

tion with Bugg, the court instructed the jury as follows:

‘‘Ladies and gentlemen, I talked to you when we first

began the trial about evidence admitted for a limited

purpose. Any comments that Mr. Bugg made to Mr.

Foote, they can be used by you only for purposes of

evaluating the credibility of Mr. Bugg; you can’t use

them for any other purpose. So, to the extent that you

find them [relevant] you can use them, but only insofar

as they relate to the credibility of Mr. Bugg; they are

not to be used by you . . . these statements are not

to be used by you for substantive purposes. So, this is

a limit[ed] inquiry, credibility only, not for substan-

tive purposes.’’

Foote testified that three or four weeks after the

shooting, he and Bugg were driving around smoking

pot when Bugg confided in him what had happened on

the night of the shooting. Foote recalled that Bugg had

said that he, Vance, and the defendant were out looking

to rob someone that night. They saw the victim and

decided to rob him. The defendant and Vance got out

of the car and put a gun in the victim’s face, which

he pushed away. The victim then ran away and the

defendant and Vance shot him. The state asked if Bugg

had ever told Foote that, on the night of the shooting,

he, the defendant, and Vance were there to buy mari-

juana, or to settle a debt. Foote testified that Bugg had

not told him such a story.

At the end of the trial, the court again instructed the

jury: ‘‘The testimony of Marquise Foote was admitted

only for impeachment purposes as to Rayshaun Bugg.

Any other use of that testimony would be improper.’’

We begin by setting forth the applicable law. Section

6-10 (a) of the Connecticut Code of Evidence provides:

‘‘The credibility of a witness may be impeached by

evidence of a prior inconsistent statement made by the

witness.’’ Our Supreme Court has held that ‘‘[i]mpeach-

ment of a witness by the use of a prior inconsistent

statement is proper only if the two statements are in

fact inconsistent. . . . Moreover, the inconsistency

must be substantial and relate to a material matter.’’

(Citations omitted; emphasis omitted.) State v. Rich-

ardson, 214 Conn. 752, 763, 574 A.2d 182 (1990).

Section 6-10 (c) of the Connecticut Code of Evidence

provides in relevant part that ‘‘[i]f a prior inconsistent

statement made by a witness is 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.’’ (Emphasis added.) This court

has held that ‘‘[w]e have no inflexible rule regarding

the necessity of calling the attention of a witness on

cross-examination to his alleged prior inconsistent

statements before either questioning him on the subject

or introducing extrinsic evidence tending to impeach

him.’’ (Internal quotation marks omitted.) State v. Gau-

thier, supra, 140 Conn. App. 79. Rather, trial ‘‘[c]ourts

have wide discretion whether to admit prior inconsis-

tent statements that have not satisfied the typical foun-

dational requirements in § 6-10 (c) of the Connecticut

Code of Evidence . . . .’’ (Internal quotation marks

omitted.) Id., 80.

Here, the defendant argues that the court abused its

discretion in admitting Foote’s testimony under § 6-10

(c) of the Connecticut Code of Evidence, as extrinsic

evidence of a prior inconsistent statement by Bugg. In

view of all the circumstances, we conclude that the

court reasonably decided (1) that Bugg’s confession to

Foote was substantially inconsistent with both his

denial of having made such a confession and with his

testimony at trial about driving to Diamond Court only

to buy marijuana from the ‘‘weed man’’ on the night of

the shooting; and (2) that the issue of whether the

jury should believe Bugg’s statement to police that the

defendant and Vance committed the crimes charged,

or Bugg’s testimony at trial that they merely attempted

to buy marijuana, was material to the defendant’s guilt

or innocence. Accordingly, the court did not abuse its

discretion in admitting the challenged testimony for the

limited purpose of impeaching Bugg.23

C

The defendant dresses his third and final evidentiary

claim in constitutional garb, arguing that ‘‘the trial court

erred in permitting lead detective . . . Slavin to testify

about and comment on hearsay information police

received from the state’s witnesses, [that the admission

of this testimony] violated the defendant’s rights to

confrontation and cross-examination, [that the admis-

sion of this testimony] invaded the province of the jury

as to both witness credibility and critical disputed facts,

and [that the admission of this testimony] was contrary

to the rules of evidence.’’ (Internal quotation marks

omitted.) The defendant argues that the court permitted

Slavin to testify as a ‘‘super-witness’’ who filtered the

testimony of other witnesses for the jury. We conclude

that the court properly admitted Slavin’s testimony for

the limited purpose of explaining how the police investi-

gation proceeded.

The following additional facts and procedural history

are relevant to this claim. Near the end of the state’s

case-in-chief, the state recalled Slavin as a witness so

that he could testify about how the police investigation

of the January 18, 2010 shooting proceeded. As part of

this testimony, the state planned to ask Slavin about

the statements that various witnesses had given to

police. The defense objected that such testimony would

be both improper hearsay and improper commentary

on the testimony of other witnesses. The court ruled

that such testimony was admissible, but only ‘‘with

respect to individuals that have already testified,’’ and

‘‘only for the purpose of [showing] how that affected

the [police] investigation . . . [not] for any other pur-

pose.’’ The court added that it would be giving the jury

a limiting instruction and, accordingly, instructed the

jury as follows:

‘‘You’re also going to hear testimony about what some

of the witnesses said to the police—witnesses that have

already testified here in front of you. That—those com-

ments by Lieutenant Slavin about what a witness said,

that is not intended in any way to affect your individ-

ual determination of the credibility of that witness

as they—as they sat here on the [witness] stand and

testified. The whole purpose of this testimony by Lieu-

tenant Slavin is to give you, in context, how the police

investigation proceeded. So, there are going to be some

comments about other things you’ve heard here from

other witnesses. That’s not to be used for any purpose

other than how the police reacted to those responses.

So, you’ve got—we talked about compartments. You’ve

got a compartment for the witness and what the witness

testified to. Then you’ve got a compartment, comments

that Lieutenant Slavin may make about what those wit-

nesses said. Again, only to give you the context of the

police investigation.

‘‘You’ve got to separate that so the fact that I’m going

to allow him to make comments on what somebody

else said doesn’t mean in any way, shape, or form that

you should treat that testimony any differently than

I instructed you to treat all the testimony, which is to

take everybody individually and treat them by the

same standard.’’ (Emphasis added.) The court clarified,

‘‘[and] if I said, what they said, I didn’t mean in any

[way] to support anything that anybody said. I’m just

trying to apply the rules as best I can. You’ve got to

determine the credibility. That’s your job, not my job.’’

Slavin testified as follows about the investigation and

the role that various witnesses’ police statements

played in it. Ten days after the shooting, the police

received a tip. On the basis of that tip, he entered two

nicknames into a police database and came up with the

names of the defendant and Oliphant. He searched the

Judicial Branch website for those names and found that

the defendant received a ticket a few days before the

shooting. From the police report of that incident, he

obtained the defendant’s phone number and a descrip-

tion of the car he drove, which matched the car seen

on the night of the shooting. He also learned of a third

individual, Vance, who was with the defendant when

he was ticketed.

One year later, on January 5, 2011, Foote was arrested

on unrelated charges and told police that he had infor-

mation about the January 18, 2010 shooting. Foote con-

firmed that the defendant, Oliphant, and Vance were

involved and added a fourth name—Bugg. Foote told

police that those individuals tried to rob the victim on

the night of the shooting, that the victim ‘‘disrespected’’

the attempted robbery, that they shot him for that rea-

son, and that Bugg was the getaway driver. Foote did

not give the police a written statement at that time.

The police next interviewed Oliphant and his then

girlfriend, Stevens, who both gave written statements

on February 2, 2011, denying that Oliphant was involved

and asserting that the defendant, Vance, and Bugg were

the culprits. On February 10, 2011, the police inter-

viewed Bugg, who gave a written statement confessing

that he, the defendant, and Vance, but not Oliphant,

attempted the robbery on the night of January 18, 2010.

Bugg’s statement that the defendant and Vance initially

planned to rob a man in an Acura SUV, but changed

plans when they saw he had two children caused one

of the detectives to remember a phone call he received

shortly after the shooting from a friend who was at

Diamond Court picking up his children on the night of

the shooting. On February 16, 2011, police interviewed

him and took a written statement. On February 18, 2011,

the police interviewed Vance’s then girlfriend, Vondella

Riddick, who gave a written statement. Finally, police

traveled to North Carolina where they interviewed

Vance, who gave a written statement on February 22,

2011, confessing that he, the defendant, and Bugg

attempted to rob the victim and ended up shooting him.

At that point, the police arrested the defendant,

Vance, and Bugg. Prior to trial, the police conducted

additional interviews, including a second interview with

Stevens and an interview with the defendant’s aunt,

both of whom gave written statements.

After the state finished questioning Slavin, the

defense cross-examined him. The defense previously

had cross-examined each of the witnesses whose police

statements Slavin discussed in his testimony.

The court’s final charge to the jury at the end of the

trial reiterated that the jurors were ‘‘the sole judges of

the facts,’’ and that they ‘‘must determine the credibility

of police personnel in the same way and by the same

standards as [they] would evaluate the testimony of any

other witness.’’ The charge did not specifically refer-

ence Slavin’s testimony, but instructed the jury gener-

ally that, ‘‘[y]ou will recall that I have ruled that some

testimony and evidence has been allowed for a limited

purpose. Any testimony or evidence which I identified

as being limited to a purpose you will consider only as

it relates to the limits for which it was allowed, and

you shall not consider such testimony or evidence in

finding any other facts as to any other issue.’’

Although the defendant frames his objection to this

testimony in constitutional terms, invoking the sixth

amendment’s confrontation clause24 and the fair trial

component of the fourteenth amendment’s due process

clause,25 his claim is in reality evidentiary in nature. See

State v. Smith, 110 Conn. App. 70, 86, 954 A.2d 202

(‘‘[r]obing garden variety claims [of an evidentiary

nature] in the majestic garb of constitutional claims

does not make such claims constitutional in nature’’

[internal quotation marks omitted]), cert. denied, 289

Conn. 954, 961 A.2d 422 (2008).

As to the defendant’s confrontation clause claim, the

United States Supreme Court has stated that ‘‘when the

declarant appears for cross-examination at trial, the

Confrontation Clause places no constraints at all on

the use of his prior testimonial statements.’’ Crawford

v. Washington, 541 U.S. 36, 60 n.9, 124 S. Ct. 1354,

158 L. Ed. 2d 177 (2004). Here, the court ‘‘allow[ed]

comments [only] with respect to individuals that ha[d]

already testified’’ at trial, on statements that ‘‘ha[d]

already been presented to the jury . . . .’’ The defen-

dant had an opportunity to cross-examine those wit-

nesses about their statements and so the confrontation

clause was not implicated.26

As to the defendant’s fair trial claim, because we

conclude that the court properly admitted the chal-

lenged testimony and properly instructed the jury as to

its use, the defendant’s right to a fair trial was not

implicated.

Proceeding then to the defendant’s evidentiary

claims, the defendant objects to the testimony on two

grounds: (1) as improper commentary on the testimony

of other witnesses, and (2) as improper hearsay. Neither

objection has merit.

First, the defendant argues that ‘‘Slavin’s testimony

in this case . . . placed an improper gloss on the testi-

mony of other witnesses.’’ (Internal quotation marks

omitted.) Our Supreme Court has held that ‘‘it is

improper to ask a witness to comment on another wit-

ness’ veracity.’’ State v. Singh, 259 Conn. 693, 706, 793

A.2d 226 (2002). ‘‘[I]t is never permissible . . . to ask

a witness to characterize the testimony or statement

of another witness . . . .’’ (Internal quotation marks

omitted.) Id., 707; see also id., 708 (‘‘improper to ask

question designed to cause one witness to characterize

another’s testimony as lying’’); id. (‘‘question to defen-

dant of whether victim lied in testimony improper

because it sought information beyond defendant’s com-

petence’’).

Here, however, Slavin did not comment on the testi-

mony of other witnesses. Although Slavin did testify

about the same underlying facts as other witnesses,

such as the statements that various witnesses gave to

the police, the defendant has cited to no rule that bars

two witnesses from testifying about the same underly-

ing facts. Nor are we aware of any.

Moreover, the defendant’s argument that Slavin

improperly colored the jury’s perception of other wit-

nesses’ testimony ignores that Slavin’s testimony was

not admitted for substantive or credibility purposes.

The court admitted Slavin’s testimony for the limited

purpose of explaining how the police investigation pro-

ceeded, instructed the jurors that his testimony was

‘‘not to be used for any [other] purpose,’’ and specifi-

cally instructed the jurors that Slavin’s testimony should

not ‘‘in any way . . . affect your individual determina-

tion of the credibility of [other] witness[es] as they . . .

sat here on the [witness] stand and testified.’’ See State

v. L.W., 122 Conn. App. 324, 335 n.7, 999 A.2d 5 (court’s

cautionary instructions relevant to analysis of whether

evidence properly admitted), cert. denied, 298 Conn.

919, 4 A.3d 1230 (2010). ‘‘We presume that the jury

followed the instructions as given.’’ State v. Webster,

308 Conn. 43, 58 n.11, 60 A.3d 259 (2013). ‘‘[I]t is well

established that, [i]n the absence of a showing that the

jury failed or declined to follow the court’s instructions,

we presume that it heeded them.’’ (Internal quotation

marks omitted.) Hurley v. Heart Physicians, P.C., 298

Conn. 371, 402, 3 A.3d 892 (2010). Accordingly, we con-

clude that Slavin’s testimony was not improper com-

mentary on the testimony of other witnesses.

Second, the defendant argues that ‘‘Slavin’s testimony

about what codefendants and other witnesses told

police consisted of first level, double, triple and quadru-

ple hearsay.’’ On the contrary, the court did not admit

Slavin’s testimony for its truth, but only to explain ‘‘how

the police investigation proceeded.’’ ‘‘An out-of-court

statement offered to prove the truth of the matter

asserted is hearsay and is generally inadmissible unless

an exception to the general rule applies.’’ (Emphasis

added; internal quotation marks omitted.) State v. Rosa-

rio, 99 Conn. App. 92, 108, 912 A.2d 1064, cert. denied,

281 Conn. 925, 918 A.2d 276 (2007). Evidence offered

for another purpose, however, ‘‘is admissible not as an

exception to the hearsay rule, but because it is not

within the rule.’’ State v. Sharpe, 195 Conn. 651, 661,

491 A.2d 345 (1985). For instance, ‘‘the state may . . .

present evidence to show the investigative efforts made

by the police and the sequence of events as they

unfolded, even if that evidence would be inadmissible

if offered for a different reason.’’ State v. Vidro, 71

Conn. App. 89, 95, 800 A.2d 661, cert. denied, 261 Conn.

935, 806 A.2d 1070 (2002). Here, the state did exactly

that. Accordingly, the challenged testimony was not

improper hearsay.

The court properly admitted Slavin’s testimony for

the limited purpose of explaining how the police investi-

gation proceeded.

III

The defendant’s fifth and final claim is that the court

improperly penalized him with a longer sentence for

electing to go to trial, as revealed by the court’s remarks

at sentencing.

The following additional facts and procedural history

are relevant to this claim. Before being sentenced, the

defendant addressed the court to explain that although

‘‘I do accept responsibility for my actions [insofar as]

. . . I feel that if I was living a better life in 2010, I

wouldn’t be sitting right here. [Nevertheless] I did not

shoot [the victim]. I didn’t do it. What I did was see

what happened and didn’t say anything, when the police

questioned me . . . [a]nd I guess that’s the reason why

I’m sitting here today because . . . I was the first per-

son they questioned in this case, [and] if I [had] told

the truth [about] what happened [then] the prosecutor

wouldn’t be over there saying [I] deserve the maximum,

she would have been offering me a deal like she was

offering Bugg to lie . . . [at] my probable cause hear-

ing. And I would be free in—in another five years,

maybe. . . . But since I didn’t say anything this is what

I have to—this is what I have to live with. . . . Once

again, I’m sorry, for y’all loss, but the facts . . . of the

matter, Your Honor, [are that] on these five counts . . .

I’m innocent.’’

After briefly addressing the victim’s family, the court

addressed the defendant: ‘‘Anthony Collymore, your

actions on the night of January 18th, 2010, were com-

pletely random, totally senseless and just vicious in

nature. You shattered [the victim’s] family, left them

with a loss that will linger with them forever. Your

actions clearly demonstrate total indifference to the

laws of our society and a complete disregard for others.

‘‘Furthermore, you are still unwilling to accept full

responsibility for your actions. I cannot get inside your

mind to determine your motives that night to commit

such a senseless act. You should have known that the

decisions that you took that night were going to lead

to a tragic end, and they did.’’ (Emphasis added.) The

court concluded by noting the defendant’s lengthy, vio-

lent criminal record.

At the outset, we note that this unpreserved claim

by the defendant ‘‘is reviewable under the first two

prongs of State v. Golding, [213 Conn. 233, 239, 567

A.2d 823 (1989)] because: (1) the record is adequate

for review as the trial court’s remarks during sentencing

are set forth in the transcripts in their entirety; and (2)

the claim is of constitutional magnitude, as demon-

strated by the defendant’s discussion of relevant author-

ity in his main brief.’’ (Footnote omitted.) State v. Elson,

311 Conn. 726, 756, 91 A.3d 862 (2014). We thus turn

to the third prong of Golding, to determine whether

‘‘the alleged constitutional violation . . . exists and

. . . deprived the [defendant] of a fair trial.’’ (Internal

quotation marks omitted.) In re Yasiel R., 317 Conn.

773, 781, 120 A.3d 1188 (2015).

As to whether a constitutional violation exists, it is

‘‘clearly improper’’ to increase a defendant’s sentence

‘‘based on [his or her] decision to stand on [his or her]

right to put the [g]overnment to its proof rather than

plead guilty . . . .’’ (Emphasis omitted; internal quota-

tion marks omitted.) State v. Elson, supra, 311 Conn.

758. Nevertheless, a defendant’s ‘‘ ‘general lack of

remorse’ ’’; id., 761–62; and ‘‘ ‘refusal to accept responsi-

bility’ ’’; id., 783; for crimes of which he was convicted

are ‘‘ ‘legitimate sentencing considerations’ . . . .’’ Id.,

761. ‘‘[R]eview of claims that a trial court lengthened

a defendant’s sentence as a punishment for exercising

his or her constitutional right to a jury trial should be

based on the totality of the circumstances. . . . [T]he

burden of proof in such cases rests with the defendant.’’

(Internal quotation marks omitted.) Id., 759.

Here, the defendant argues that the court’s comment

at sentencing that he was ‘‘still unwilling to accept full

responsibility for [his] actions’’ proves that the court

improperly lengthened his sentence as punishment for

electing to go to trial. We disagree. In context, that

language was a comment on the defendant’s remarks

at sentencing, in which the defendant continued to

blame his predicament in large part on his quality of

life and on the prosecutor, rather than accept full

responsibility for his own actions. In context, the court’s

remark was proper commentary on the defendant’s

‘‘ ‘general lack of remorse’ ’’; State v. Elson, supra, 311

Conn. 761–62; and ‘‘ ‘refusal to accept responsibility’

. . . .’’27 Id., 783; see also State v. West, 167 Conn. App.

406, 419, A.3d (2016) (rejecting similar claim).

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 defendant was also found guilty of a second count of attempted

robbery in the first degree in violation of §§ 53a-49 (a) (2) and 53a-134 (a)

(4), but the court vacated that finding at sentencing, pursuant to State v.

Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013).

2

The state’s ballistics expert noted that a .38 class bullet could be fired

from a nine millimeter pistol, a .38 Special revolver, or a .357 Magnum

revolver.

3

See State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86 (‘‘[w]e, therefore,

adopt today a rule allowing the substantive use of prior written inconsistent

statements, signed by the declarant, who has personal knowledge of the

facts stated, when the declarant testifies at trial and is subject to cross

examination’’), cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598

(1986).

4

The multiple, overlapping nature of these witnesses’ testimony requires

a more detailed presentation of the facts than is ordinarily necessary.

5

The following colloquy occurred during defense counsel’s questioning

of Oliphant:

‘‘[Defense Counsel]: Now, you testified at the trial that you felt guilty,

that—you felt guilty about Vance Wilson. Can you explain that?

‘‘[The Witness]: I plead the fifth. . . .

‘‘[Defense Counsel]: You indicated during your direct testimony that you

felt guilty. What was that reference?

‘‘[Oliphant’s Counsel]: He took the fifth amendment to that question.’’

6

The sixth amendment rights to compulsory process and to present a

defense are made applicable to the states through the fourteenth amend-

ment’s due process clause. State v. Andrews, 313 Conn. 266, 272 n.3, 96

A.3d 1199 (2014).

7

Although the defendant argues in his brief that the state’s conduct vio-

lated both the federal and state constitutions, he has provided no indepen-

dent analysis under the state constitution, as required by State v. Geisler,

222 Conn. 672, 684–86, 610 A.2d 1225 (1992), and so we limit our review to

the federal constitutional claim. See State v. Allen, 289 Conn. 550, 580 n.19,

958 A.2d 1214 (2008).

8

At trial, the state never specified by what authority it immunized the

three witnesses. The state asserts on appeal, however, that it relied on § 54-

47a for Bugg and Oliphant. As to Vance, the state argues that the record of

his immunity is inadequate to review, but argues in the alternative that its

grant of immunity to Vance was proper, citing a § 54-47a case, State v.

Giraud, 258 Conn. 631, 635 n.3, 638, 783 A.2d 1019 (2001). At no point before

the trial court or this court has the state asserted any other source for its

authority to immunize witnesses. Accordingly, we confine our review to

§ 54-47a. See Furs v. Superior Court, 298 Conn. 404, 411–13, 3 A.3d 912

(2010) (declining to review claim that state has ‘‘inherent authority’’ to

immunize witnesses, because it was not raised before trial court).

9

Here, the state proceeded in the opposite order, first telling the court

that it was granting the witnesses immunity and then having the court

instruct the witnesses that they could no longer refuse to testify on the

basis of their fifth amendment right against self-incrimination.

10

Because a grant of immunity pursuant to § 54-47a necessarily includes

transactional immunity, all three witnesses received such immunity when

the state immunized them during its case-in-chief. See Furs v. Superior

Court, 298 Conn. 404, 411, 3 A.3d 912 (2010) (‘‘the General Assembly intended

to provide both transactional and derivative use immunity to witnesses

compelled under the statute to testify’’). Section 54-47a also confers use

and derivative use immunity, meaning that, in addition, the state cannot use

testimony compelled under § 54-47a—or evidence found as a result of that

testimony—to prosecute the witness for another offense about which the

witness did not testify. See id.; but see Cruz v. Superior Court, 163 Conn.

App. 483, 490 n.5, 136 A.3d 272 (2016) (treating use and derivative use

immunity as wholly contained subset of transactional immunity).

11

For its part, the trial court never explicitly stated whether it viewed the

issue as one of revoking existing immunity or granting additional immunity,

but its comments suggest that it took the latter view.

12

At oral argument before this court, the defendant did argue that trial

counsel was barred during cross-examination in the state’s case-in-chief

from asking certain questions, as they were beyond the scope of the state’s

direct examination, then barred from asking those same questions during the

defense case-in-chief because the witnesses asserted their fifth amendment

rights, and that this sufficed to show that the defense was denied essential

testimony. We disagree, for two reasons.

First, as a legal matter it is not potentially exculpatory questions but

actually exculpatory answers that the defendant must show to sustain his

burden under the effective defense theory. See United States v. Triumph

Capital Group, Inc., 237 Fed. Appx. 625, 629–30 (2d Cir. 2007) (questions

alone not sufficient); see also United States v. MacCloskey, supra, 682 F.2d

475–77, 479 (reversing conviction where witness had previously answered

questions during voir dire outside jury’s presence and answers were detailed

and exculpatory). Here, we cannot speculate as to what the answers to the

defendant’s questions might have been. See New Hartford v. Connecticut

Resources Recovery Authority, 291 Conn. 502, 510, 970 A.2d 578 (2009)

(‘‘speculation and conjecture . . . have no place in appellate review’’ [inter-

nal quotation marks omitted]).

Second, as a factual matter, even if we could speculate as to the answers

to the questions that were asked, we would conclude that such testimony

was cumulative or otherwise obtainable because, here, the witnesses did

answer the vast majority of questions at some point during the trial, and

the only questions that remained unanswered were highly tangential to the

actual issues at hand. See part I B 2 of this opinion.

13

We note that the state, in its brief, did not address the defendant’s

argument that the court improperly sustained these witnesses’ invocation

of their fifth amendment rights.

14

As to the three new questions, the court’s failure to compel Bugg, Vance,

and Oliphant to testify did not violate the defendant’s constitutional rights

because the witnesses asserted a valid fifth amendment right. See State v.

Simms, 170 Conn. 206, 209–10, 365 A.2d 821 (in conflict between witness’

fifth amendment right against self-incrimination and defendant’s right to

compulsory process, fifth amendment right prevails), cert. denied, 425 U.S.

954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976).

15

The defendant also claims, as a procedural matter, that the court erred

by not individually assessing whether each question implicated the witness’

fifth amendment right to remain silent, and instead permitting a ‘‘blanket’’

assertion of that right. We do not address this claim because we conclude

that, even if the procedure was improper, these questions did not implicate

the fifth amendment.

16

As to these questions, the court’s failure to compel Bugg, Vance, and

Oliphant to testify did not violate the defendant’s constitutional rights

because the same testimony already had been presented during the state’s

case-in-chief, and the defendant has identified no compelling tactical reason

why that testimony needed to be repeated in the defense case-in-chief. See

State v. West, 274 Conn. 605, 624–25, 877 A.2d 787 (‘‘[t]he federal constitution

require[s] that criminal defendants be afforded a meaningful opportunity to

present a complete defense . . . [which is] in plain terms the right to . . .

present the defendant’s version of the facts as well as the prosecution’s to

the jury so that it may decide where the truth lies’’ [internal quotation marks

omitted]), cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).

17

The defendant argues that this error was structural and thus not subject

to harmlessness analysis. We disagree. ‘‘[W]e forgo harmless error analysis

only in rare instances involving a structural defect of constitutional magni-

tude. . . . Structural defect cases defy analysis by harmless error standards

because the entire conduct of the trial, from beginning to end, is obviously

affected . . . .’’ (Emphasis altered; internal quotation marks omitted.) State

v. Artis, 314 Conn. 131, 150, 101 A.3d 915 (2014). ‘‘[S]tructural defect cases

contain a defect affecting the framework within which the trial proceeds,

rather than simply an error in the trial process itself. . . . Such errors infect

the entire trial process . . . and necessarily render a trial fundamentally

unfair . . . . Examples of such structural errors include, among others,

racial discrimination in the selection of a grand jury or petit jury and the

denial of a defendant’s right to counsel, right to a public trial, or right to

self-representation.’’ (Citations omitted; internal quotation marks omitted.)

Id., 151. Here, the court’s various evidentiary rulings improperly excluding

testimony that the jury had already heard neither were an error of constitu-

tional magnitude nor ‘‘infect[ed] the entire trial process . . . necessarily

render[ing] [the] trial fundamentally unfair . . . .’’ (Internal quotation marks

omitted.) Id.

18

The fifth count of the information, which charged the defendant with

criminal possession of a firearm in violation of § 53a-217 (a) (1), alleged

that ‘‘on or about January 18, 2010, at approximately 9:42 p.m., at or near

[Diamond Court, the defendant] possessed a firearm and had been convicted

of a felony.’’

19

See footnote 18 of this opinion.

20

The defendant was charged with two counts of attempted robbery in

the first degree in violation of §§ 53a-49 and 53a-134, one count of conspiracy

to commit robbery in the first degree in violation of §§ 53a-48 and 53a-134,

and one count of felony murder with a predicate felony of robbery.

21

The court instructed the jury that it could use the testimony about

January 9, 2010, only to assess Oliphant’s credibility, not for substantive

purposes. The defendant argues that the jury would have ignored this clear

instruction and instead used the evidence substantively. ‘‘[I]t is well estab-

lished that, [i]n the absence of a showing that the jury failed or declined to

follow the court’s instructions, we presume that it heeded them.’’ (Internal

quotation marks omitted.) Hurley v. Heart Physicians, P.C., 298 Conn. 371,

402, 3 A.3d 892 (2010). Nevertheless, in determining whether evidence is

more prejudicial than probative, a court must assess the risk that a jury

will ignore such instructions and use evidence for an improper purpose.

See State v. Busque, 31 Conn. App. 120, 124–25, 129–32, 623 A.2d 532 (1993)

(reversing conviction where evidence was such that jury likely used it for

improper purpose, despite court’s clear instruction), appeal dismissed, 229

Conn. 839, 643 A.2d 1281 (1994). Because the defendant here does not

challenge the admission of the January 9 gun possession testimony to the

extent that the jury properly used it to assess Oliphant’s credibility, in our

analysis of harmlessness we consider the risk that the jury improperly used

that testimony for substantive purposes.

22

See Conn. Code Evid. § 8-3 (‘‘[t]he following are not excluded by the

hearsay rule . . . [1] . . . [a] statement that is being offered against a party

and is . . . [D] a statement by a coconspirator of a party while the conspir-

acy is ongoing and in furtherance of the conspiracy’’).

23

The defendant also argues that Foote’s testimony was improper hearsay.

We disagree. ‘‘An out-of-court statement offered to prove the truth of the

matter asserted is hearsay and is generally inadmissible unless an exception

to the general rule applies.’’ (Emphasis added; internal quotation marks

omitted.) State v. Rosario, 99 Conn. App. 92, 108, 912 A.2d 1064, cert. denied,

281 Conn. 925, 918 A.2d 276 (2007). Evidence offered for another purpose,

however, ‘‘is admissible not as an exception to the hearsay rule, but because

it is not within the rule.’’ State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345

(1985). Here, the court twice instructed the jury that the evidence was

admitted solely for impeachment. ‘‘It is a fundamental principle that jurors

are presumed to follow the instructions given by the judge.’’ (Internal quota-

tion marks omitted.) State v. Williams, 258 Conn. 1, 15 n.14, 778 A.2d

186 (2001).

24

The sixth amendment to the United States constitution provides in

relevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against him . . . .’’

The sixth amendment right to confrontation is made applicable to the

states through the due process clause of the fourteenth amendment. See,

e.g., Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).

25

The defendant argues that this testimony violated his ‘‘right to have his

jury determine issues of credibility and fact’’ and that this ‘‘state[s] [a claim]

of constitutional magnitude.’’ Although he does not specify under what

provision of the constitution he asserts this right, we gather from the cases

he cites that it is essentially a ‘‘fair trial’’ claim under the due process

clause of the fourteenth amendment to the United States constitution, which

provides in relevant part: ‘‘nor shall any State deprive any person of life,

liberty or property, without due process of law . . . .’’

26

Although Slavin did testify, in one instance, to the out-of-court statement

of a nonwitness, we conclude that the defendant waived any challenge to

that testimony. At trial, the state asked Slavin how the police first learned

who was involved in the shooting. Slavin began to say that they had received

a tip but defense counsel interrupted, objecting ‘‘as to what the tip might

have been’’ on the ground that it was hearsay. The state claimed it for its

effect on the listener, the court overruled the objection, and Slavin testified

that the police ‘‘received a tip from a young lady who overheard some people

talking on a bus that a party named Rex and Stacks or . . . Dreads were

. . . the ones responsible for killing [the victim].’’ The court then excused

the jury and held a sidebar, at which defense counsel asked the court to

strike the testimony about ‘‘the tip information’’ but expressly agreed that

the state could ‘‘ask the question, you heard something, you got a tip, and

then as a result of that tip, what did you do. It doesn’t have to have what

the tip is.’’ The court adopted that position, ruling that Slavin could testify

that ‘‘the authorities [got] a tip and act[ed] on that’’ but could not testify

that ‘‘the tip said (a), (b), or (c).’’ When the court reiterated that the state

could ask about ‘‘[t]he fact . . . [that police] got a tip,’’ the state asked,

‘‘[b]ut that’s where the objection would l[ie] for [defense counsel],’’ and the

court replied: ‘‘That’s not what I heard. What I heard was, the issue was

with respect to the content of the conversation from someone outside of

the authorities. Am I correct in that?’’ (Emphasis added.) Defense counsel

replied, ‘‘Yes.’’ The court then brought the jury back into the courtroom,

instructing the jurors that it was striking the testimony they had heard about

the tip and that although Slavin would be testifying about what others had

said, such testimony was ‘‘not to be used for any purpose other than how

the police reacted to those responses . . . to give [jurors] the context of

the police investigation.’’ The state then elicited the following testimony

from Slavin:

‘‘Q. Okay. And now you indicated that at some point in time a tip came

into the Waterbury police?’’

‘‘A. Yes.

‘‘Q. And when was that?

‘‘A. It was on, I believe, January 28th, 2010.

‘‘Q. Okay. And based on that tip, what did you do?

‘‘A. Based on that tip, the—the names that I had to work with, the nick-

names—we have a database of nicknames, street names, that we’ve been

compiling—particularly another sergeant and I—since—for almost ten years

now. We had those nicknames in this list, and the nicknames came out to

be Stacks, which would be [the defendant], and Rex or Dreads, which turned

out, we believed, to be Mr. Oliphant—Jabari Oliphant.’’

Defense counsel did not object to this testimony. Against this background,

‘‘[w]e deem this claim waived, and, therefore, we decline to review it.’’ State

v. Phillips, 160 Conn. App. 358, 369, 125 A.3d 280, cert. denied, 320 Conn.

903, 127 A.3d 186 (2015).

27

On several of his claims, the defendant also asks this court to invoke

its supervisory powers to reverse the judgment of the trial court and remand

the case for a new trial. We decline to do so. ‘‘The exercise of our supervisory

powers is an extraordinary remedy to be invoked only when circumstances

are such that the issue at hand, while not rising to the level of a constitutional

violation, is nonetheless of utmost seriousness, not only for the integrity of

a particular trial but also for the perceived fairness of the judicial system

as a whole.’’ (Emphasis omitted; internal quotation marks omitted.) State

v. Lockhart, 298 Conn. 537, 576, 4 A.3d 1176 (2010). This is not such a case.

Finally, the defendant asks this court ‘‘to review the sealed exhibit [submit-

ted to the court at trial, containing the personnel files of several detectives

who testified] and [to] grant appropriate relief.’’ (Citation omitted.) The

state does not dispute the propriety of such review, but argues that ‘‘unless

the sealed exhibit contains information . . . so compelling that it could

have impacted the outcome at trial,’’ the court did not abuse its discretion

in denying the defendant’s request for those files. At trial, the court agreed

to review the files to determine whether any information in them should

be disclosed to the defendant. It appears that no such information was

disclosed. We have reviewed the sealed files ourselves and conclude that

the court did not abuse its discretion in denying the defendant’s request.