State v. Coleman

• Citation: 83 Conn. App. 672,851 A.2d 329
• Decision Date: 06 July 2004
• Docket Number: (AC 23424).
• Parties: STATE OF CONNECTICUT v. CHRISTOPHER COLEMAN.
• Court: Appellate Court of Connecticut

83 Conn. App. 672

851 A.2d 329

STATE OF CONNECTICUT v. CHRISTOPHER COLEMAN.

(AC 23424).

Appellate Court of Connecticut.

Argued January 6, 2004.

Officially released July 6, 2004.

Schaller, Bishop and McLachlan, Js.

Pamela S. Nagy, special public defender, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Howard S. Stein, assistant state's attorney, for the appellee (state).

Opinion

McLACHLAN, J.

The defendant, Christopher Coleman, appeals from the trial court's judgment of conviction, rendered after a jury trial, of two counts of tampering with a witness in violation of General Statutes § 53a-151. On appeal, the defendant claims that (1) § 53a-151 is unconstitutionally void for vagueness as applied to the facts of this case, (2) there was insufficient evidence to support the conviction, (3) the court improperly denied his first request for self-representation, (4) the court improperly concluded that his waiver of counsel was knowingly and intelligently made, (5) the court improperly denied his motion for a continuance, (6) the court improperly charged the jury on the elements of § 53a-151 and (7) the prosecutor's comments during cross-examination and closing argument were improper and amounted to misconduct sufficient to warrant a new trial. We affirm the judgment of the trial court.

The facts underlying the witness tampering conviction at issue in this appeal arise out of a 2001 jury trial (first trial) in which the defendant was charged with attempt to commit murder in connection with an April 5, 1999 shooting.¹ During the first trial, the defendant's girlfriend, Shaquanda McMichael, and her mother, Phyllis McMichael, testified for the defendant as alibi witnesses. Both testified that Shaquanda McMichael spent the entire day and evening in question with the defendant, including the time frame within which the shooting was alleged to have occurred. Based in part on that testimony, the defendant successfully argued that he could not have committed the shooting, and a mistrial was declared due to a hung jury.

It was discovered subsequently that the McMichaels allegedly had fabricated the defendant's alibi in the first trial and that the defendant allegedly had influenced them to do so. As a result, when the defendant was retried on the charge of attempt to commit murder, the state added two charges of witness tampering in connection with his alleged involvement in the false testimony provided by the McMichaels.² During the second trial, the McMichaels testified that the statements they made in the first trial establishing an alibi for the defendant were not truthful. Shaquanda McMichael explained that she had visited the defendant while he was incarcerated and awaiting the first trial and that during those visits, he told her that she should present an alibi that she was with him the entire day in question. She further testified that the defendant wrote her four letters from prison, detailing the false alibi she should provide and instructing her to give the letters to Phyllis McMichael after memorizing their contents. Shaquanda McMichael also testified that when she visited the defendant in prison, he questioned her on the content of the letters to test the accuracy of her recollection of the fabricated alibi. Phyllis McMichael similarly testified that she read the letters written by the defendant and that when she visited him in prison, he also tested her recollection of the details of the false alibi.

The defendant's former cell mate, Wilfredo Benitez, also testified at the second trial. Benitez testified that the defendant informed him that "he was telling his girlfriend and his girlfriend's mother what exactly to say to the investigators about his alibi, to say he wasn't at the crime scene. And he said he was writing from jail continuing to tell them that—continuing to tell them what to say through letters and stuff like that." On July 22, 2002, the jury returned a guilty verdict on both counts of witness tampering, and the court thereafter imposed a sentence of five years incarceration on each count, with the sentences to run concurrently.³ This appeal followed.

I

The defendant first claims that § 53a-151 is unconstitutionally void for vagueness as applied to the facts of this case. We disagree.

The defendant did not raise that issue at trial and, thus, failed to preserve it properly for appeal. He now requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁴ We review his claim under Golding because the record is adequate for our review, and a claim that a statute is unconstitutionally vague implicates a defendant's fundamental due process right to fair warning.

The defendant argues that § 53a-151 is ambiguous as applied to him because it fails to provide adequate notice that his conduct in the present case was prohibited. The defendant specifically takes issue with the statutory phrase, "induces or attempts to induce a witness to testify falsely," which he contends implies that to violate the statute, one must bribe, threaten or coerce a witness into providing false testimony when that witness is reluctant to do so. The defendant argues, in that respect, that the statute does not fairly warn that its terms can be violated when a witness is willing to testify falsely at the outset, independent of any coercive influence.

A statute need not exhaustively list the exact conduct prohibited. A vagueness challenge can be surmounted if interpretations of the statute by our appellate courts elucidate the reach of the statute's prohibitions. See Packer v. Board of Education, 246 Conn. 89, 107, 717 A.2d 117 (1998). Any ambiguity claimed by the defendant in the phrase, "induces or attempts to induce," however, was resolved in State v. Cavallo, 200 Conn. 664, 513 A.2d 646 (1986), in which our Supreme Court expressly considered and rejected the notion that this phrase renders § 53a-151 void for vagueness. The court explained that "the language of § 53a-151 plainly warns potential perpetrators that the statute applies to any conduct that is intended to prompt a witness to testify falsely . . . . The legislature's unqualified use of the word `induce' clearly informs persons of ordinary intelligence that any conduct, whether it be physical or verbal, can potentially give rise to criminal liability. Although the statute does not expressly mandate that the perpetrator intend to cause the witness to alter or withhold his testimony, this implicit requirement is apparent when the statute is read as a whole. . . . The legislature's choice of the verb `induce' connotes a volitional component of the crime of tampering that would have been absent had it employed a more neutral verb such as `cause.' Furthermore, the statute's application to unsuccessful, as well as successful, attempts to induce a witness to render false testimony supports our conclusion that the statute focuses on the mental state of the perpetrator to distinguish culpable conduct from innocent conduct." (Citations omitted; emphasis added.) Id., 668-69.

The clear import of that language is that the respective mental states of the McMichaels, i.e., their purported willingness to testify falsely, is irrelevant to whether the defendant's conduct falls within the statutory bounds of proscribed conduct. The Supreme Court made clear that liability under § 53a-151 hinges on the mental state of the perpetrator in engaging in the conduct at issue—his intent to induce a witness to testify falsely—not on whether he must overcome by coercive means the will of a witness reluctant to do so.

As the result of our Supreme Court's lucid explanation of the type of conduct prohibited under § 53a-151, there existed a judicial gloss with respect to the statute, of which the defendant must be presumed to have been aware,⁵ to the effect that the statute can be violated even though a witness may be independently willing to provide false testimony. See State v. Jason B., 248 Conn. 543, 568, 729 A.2d 760 (finding that prior decisions of our appellate courts construing General Statutes § 53-21 provided fair notice that sexual intercourse with child younger than sixteen was violative of statute), cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999). We accordingly conclude that § 53a-151, as interpreted in our case law, provides fair warning of the conduct that it prohibits and is not void for vagueness as applied to the present case.

II

The defendant next claims that the state produced insufficient evidence to sustain his conviction under § 53a-151. Specifically, the defendant argues that the state failed to prove that he induced or attempted to induce the McMichaels to testify falsely and that the evidence demonstrated instead that they did so willingly. We disagree.

Conceding that his claim is unpreserved, the defendant again requests review under State v. Golding, supra, 213 Conn. 239-40. We review his claim because any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right and is entitled to review whether or not the claim was preserved at trial. See State v. Gentile, 75 Conn. App. 839, 861, 818 A.2d 88, cert. denied, 263 Conn. 926, 823 A.2d 1218 (2003).

"In reviewing a claim of insufficiency of the evidence, this court construes the evidence in the light most favorable to sustaining the jury's verdict and will affirm that verdict if it is reasonably supported by the evidence and the logical inferences drawn therefrom. . . . The issue is whether the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Adams, 225 Conn. 270, 276, 623 A.2d 42 (1993).

To convict a defendant under § 53a-151, the state must prove beyond a reasonable doubt, inter alia, that he ...