State v. Collymore

• Citation: 223 A.3d 1,334 Conn. 431
• Decision Date: 21 January 2020
• Docket Number: SC 19868
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Anthony COLLYMORE

334 Conn. 431

223 A.3d 1

STATE of Connecticut

v.Anthony COLLYMORE

SC 19868

Supreme Court of Connecticut.

Argued November 7, 2018

Officially released January 21, 2020

Susan M. Hankins, assigned counsel, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom were Cynthia S. Serafini, senior assistant state's attorney, and, on the brief, Maureen Platt, state's attorney, for the appellee (state).

Palmer, McDonald, D'Auria, Kahn, Ecker and Vertefeuille, Js.

Opinion

D'AURIA, J.

The primary question in this appeal is whether the defendant, Anthony Collymore, was harmed when the state, after granting immunity to three witnesses under General Statutes § 54-47a for testimony given during the state's case-in-chief, revoked that immunity when the same witnesses later testified in the defense case-in-chief. The defendant appeals from the judgment of the Appellate Court affirming the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a), and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1).¹ He claims that his rights to due process and a fair trial under the fourteenth amendment to the United States constitution, and his rights to compulsory process and to present a defense under the sixth amendment to the United States constitution were violated when the trial court improperly permitted the state to revoke the immunity of the three witnesses, causing them to invoke their fifth amendment right against self-incrimination. Additionally, the defendant claims that the Appellate Court improperly denied his motion to reconsider in light of this court's holding in State v. Dickson , 322 Conn. 410, 141 A.3d 810 (2016), cert. denied, ––– U.S. ––––, 137 S. Ct. 2263, 198 L. Ed. 2d 713 (2017), on the ground that two witnesses made improper, first time in-court identifications. Because we conclude that the revocation of immunity did not violate the defendant's constitutional rights and that any improprieties regarding the first time in-court identifications were harmless, we affirm the judgment of the Appellate Court.

The following facts, reasonably found by the jury and recited by the Appellate Court in State v. Collymore , 168 Conn. App. 847, 850–52, 148 A.3d 1059 (2016), and procedural history are relevant to our review of these claims: "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. Eventually the three men drove into the Diamond Court apartment 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 apartment 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 Diamond 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." (Footnote in original.) Id. The defendant appealed to the Appellate Court, claiming, in relevant part, that the trial court had violated his constitutional rights to due process and compulsory process by failing to compel Bugg, Vance, and Oliphant to testify during the defense case-in-chief when they invoked their fifth amendment right against self-incrimination after the state improperly revoked the immunity that it had granted these witnesses during the state's case-in-chief. Id., at 852, 148 A.3d 1059.

The Appellate Court rejected the defendant's constitutional claim and affirmed the judgment of conviction, reasoning that, although the state could not revoke immunity it already had granted, his constitutional rights were not violated because the state did not revoke the existing immunity of these witnesses but, rather, refused to grant additional immunity for any transaction, matter, or thing not testified to and immunized during the state's case-in-chief. Id., at 865, 867, 148 A.3d 1059. The defendant, according to the Appellate Court, was not constitutionally entitled to have the three witnesses granted additional immunity because he had failed to establish that the additional testimony would have been essential to his defense or would not have been cumulative. Id., at 870–71, 148 A.3d 1059. Moreover, the Appellate Court determined that the trial court properly allowed the witnesses to invoke their fifth amendment privilege regarding questions not covered by the existing immunity because responsive answers had a tendency to incriminate the witnesses and, thus, their invocation of their fifth amendment right prevailed over the defendant's right to compulsory process. Id., at 873–74, 874 n.14, 148 A.3d 1059. The Appellate Court, however, also determined that the trial court abused its discretion by allowing the witnesses to invoke their fifth amendment privilege regarding questions covered by the existing immunity because their answers would not have incriminated them but that this error was harmless because the witnesses already had testified at length and been subject to cross-examination on those subject matters. Id., at 874–75, 148 A.3d 1059.

Subsequently, the defendant filed a timely motion for reconsideration and reargument en banc, in light of this court's holding in State v. Dickson , supra, 322 Conn. at 410, 141 A.3d 810. The Appellate Court summarily denied the defendant's motion.

The defendant petitioned for certification to appeal, which we granted, limited to the following issues: (1) "[Did] the Appellate Court properly [hold] that a prosecutor's grant of immunity to a witness for his testimony during the state's case-in-chief does not extend to the same witness' testimony when later called by the defendant as a witness?" (2) "If the answer to the first question is no, was the error nonetheless harmless?" And (3) "[Did] in-court identification testimony made by the victim's mother and brother, contrary to their pretrial statements, [violate] the defendant's due process rights pursuant to State v. Dickson , [supra, 322 Conn. at 410, 141 A.3d 810 ]?"

State v. Collymore , 324 Conn. 913, 153 A.3d 1288 (2017). Additional facts will be set forth as required.

I

The defendant first claims that his rights to present a defense and to due process were violated as a result of the state's revocation of the immunity it previously had granted to former prosecution witnesses under § 54-47a when they later were called as defense witnesses. Specifically, the defendant argues that the Appellate Court improperly characterized the prosecutor's actions as declining to grant additional immunity rather than as revoking existing immunity, which should have extended to his case-in-chief. This mischaracterization, the defendant contends, led the Appellate Court to improperly address his arguments in support of his constitutional claim, namely, that the state acted improperly by intentionally revoking immunity to deprive him of exculpatory testimony from those witnesses and that the state's actions, coupled with the trial court's warnings to the witnesses, improperly drove the witnesses from the witness stand.

Moreover, the defendant argues that he was harmed by the improper revocation of immunity, which caused the witnesses' subsequent, invalid invocations of their fifth amendment rights, because (1) the witnesses' testimony would have addressed exculpatory, material, and noncollateral subject matter, (2) the witnesses' testimony would have rehabilitated their credibility, and (3) the state's actions interfered with his right to control his defense strategy by forcing him to elicit testimony during the state's case-in-chief rather than during the defense case-in-chief.

The state responds that the Appellate Court properly characterized the prosecutor's actions as a refusal to grant additional immunity, not as a revocation of existing immunity. The state argues that the defendant was not constitutionally entitled to have Vance, Bugg, and Oliphant granted additional immunity because he failed to establish either prosecutorial misconduct or that the...