State v. Jordan

• Decision Date: 04 November 2014
• Docket Number: No. 18995.,18995.
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Victor L. JORDAN, Sr.

314 Conn. 354

102 A.3d 1

STATE of Connecticut

v.Victor L. JORDAN, Sr.

No. 18995.

Supreme Court of Connecticut.

Argued Jan. 13, 2014.

Decided Nov. 4, 2014.

Pamela S. Nagy, New Haven, assigned counsel, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Terence D. Mariani, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

Opinion

ROGERS, C.J.

The two issues that we must resolve in this certified appeal are whether the Appellate Court properly concluded that the defendant, Victor L. Jordan, Sr., was not deprived of his right to a fair trial due to the prosecutor's failure to correct the potentially misleading testimony of two witnesses, and whether this court should overrule its construction of the evidence tampering statute, General Statutes § 53a–155,¹ in State v. Foreshaw, 214 Conn. 540, 572 A.2d 1006 (1990), and hold that the defendant's conduct in the present case did not constitute evidence tampering under § 53a–155.² The defendant appeals from the judgment of the Appellate Court affirming his conviction, rendered after a jury trial, of attempt to commit robbery in the third degree in violation of General Statutes §§ 53a–49 (a)(2) and 53a–136, conspiracy to commit robbery in the third degree in violation of General Statutes §§ 53a–48 and 53a–136, and tampering with physical evidence in violation of § 53a–155. The defendant makes two primary claims on appeal. First, the defendant claims that the Appellate Court improperly concluded that the prosecutor's failure to correct the potentially misleading testimony of two witnesses denying they were promised benefits by the state in exchange for their testimony did not violate the defendant's due process right to a fair trial. Second, the defendant claims that this court should overrule its interpretation of § 53a–155 in Foreshaw and hold that, under a proper understanding of that statute, his conviction cannot stand. We reject the defendant's claim regarding the prosecutor's failure to correct the potentially misleading testimony of two witnesses, and we also reject his claim that Foreshaw should be overruled. We conclude, however, that under a proper understanding of Foreshaw, the defendant's conduct did not come within the ambit of § 53a–155. Accordingly, we affirm in part, and reverse in part, the judgment of the Appellate Court, and conclude that the defendant's conviction under § 53a–155 should be set aside.

The relevant facts and procedural history giving rise to this appeal are set forth in the opinion of the Appellate Court. “The jury reasonably could have found the following facts. On April 1, 2008, Tannith McDonnell, the assistant manager of the Naugatuck Savings Bank [bank] located at 565 Straits Turnpike in Watertown, met an acquaintance, Patsy Lombardi, in the bank parking lot at approximately 4 p.m. after she had locked the bank's doors for the day. While seated in Lombardi's car, [McDonnell] observed a man approach the bank who was wearing a heavy black coat with a raised hood, a camouflage ski mask, dark jeans and black gloves. The man placed a gloved hand inside his pocket and pulled ‘aggressively’ on the bank door with the other hand. When the locked door would not open, the man walked back down the sidewalk and out of sight. McDonnell waited until the man cleared the corner and then used Lombardi's cell phone to call 911 and report her observations to the police. Watertown [P]olice Officer Jeffrey McKirryher, who was on duty nearby directing traffic, received McDonnell's report over his police radio. McKirryher immediately saw a likely suspect and when he called out to him, the man took off, running.

“McKirryher chased the suspect onto Birch Meadow Drive, a nearby cul-de-sac, where he saw a tan vehicle with two distinctive black doors parked at the end of the road. The suspect made brief contact with the operator of the tan vehicle and then ran into a wooded area. As the car was driven away, McKirryher broadcast his observations over his police radio. Shortly thereafter, Watertown [P]olice Detective David Bromley heard the report, saw the tan car and pursued it until it came to a halt at a police roadblock.

“Virginia Palmer was on Birch Meadow Drive walking her dog when she saw a light-skinned black or Hispanic man in a dark jacket running up her street while being chased by police. Palmer observed that the fleeing man was wearing a telephone earpiece, and she heard him say, ‘[M]eet me on the other street, meet me on the other street.’ The man then ran into the wooded area at the top of the street. Gerald Boudreau was home on Birch Meadow Drive that afternoon and saw a black man wearing dark clothes and sunglasses run across his backyard while removing his jacket and running toward Sprucewood Road.

“Katherine Desantis, who lived on Sprucewood Road, which runs parallel to Birch Meadow Drive, saw a black man wearing a dark jacket, dark jeans and a dark colored ‘do-rag’ on his head, run from behind a neighbor's house. She noted that the man kept looking behind him as if he was being pursued. While the man was in the middle of the street, she saw the man remove his jacket, revealing its bright colored lining. Desantis telephoned the police as the man was in her neighbor's yard, looking around. Desantis next saw the man in her own backyard removing his gray sweatshirt and then going around to the back of her carport. Desantis' husband, Dennis Desantis, arrived home shortly after the police had left and located a sweatshirt ‘crumbled up in a ball’ at the far side of the carport. Two days later, Katherine Desantis located a dark jacket with a bright red-orange lining in a neighbor's trash can. The police collected the gray sweatshirt and the dark jacket from the Desantises. When removing the jacket from the trash can, the police also discovered a ‘black fabric type item’; a ‘neoprene-like fabric mask’ that was black on one side and camouflaged on the other; a pair of black leather gloves; and a ‘small, black plastic ... shopping bag.’

“The tan automobile with two black doors that was halted by the police at the roadblock was an Infiniti sedan registered to the defendant. The lone occupant and operator of the vehicle was Herman Cordero. Cordero testified that he fixed cars for a living and that he had been working on the defendant's car at a nearby Super 8 Motel on the day of the incident. He stated that, because he needed more tools, he decided to get some from his house. Cordero testified that he drove the defendant's Infiniti, with the defendant as a passenger, to retrieve the tools and that on the way the defendant asked him to pull over in the LaBonne's Supermarket parking lot. LaBonne's Supermarket and [the bank] are on opposite ends of the same parking lot. The defendant gave no reason for wanting to alight from the car, but simply stated that he would be back in a few minutes. Cordero claimed that because it took the defendant longer to return than he had expected, he decided to continue to his home to retrieve the tools and then return to the parking lot for the defendant. Once en route, however, he changed his mind about driving alone to his home because he did not want the defendant to think he was stealing his car. Accordingly, he claimed, he pulled into a cul-de-sac for a few minutes to wait. He stated that it was just a coincidence that he stopped in the cul-de-sac that the fleeing suspect had used as an escape route. Although the police discovered three cell phones in the Infiniti pursuant to a search warrant, Cordero denied making any contact with the [defendant] between the time he dropped him off at the parking lot and his confrontation with the police.

“One of the cell phones discovered by the police led them to Jennifer Campbell, a woman who was romantically involved with the defendant. Campbell testified that the defendant called her at about 8 p.m. on April 1, 2008, and said that he needed help. He asked her to meet him at the Super 8 Motel where, he said, he was going by taxicab and where he would be with his wife and children. Campbell testified that when she arrived at the motel, the defendant asked her to rent a room in her name, and he provided her with money for the cost of the room. According to Campbell, after settling into the room with her, the defendant attempted multiple times to call a person named ‘Jun,’ but he could not reach him. Although she knew who Jun was, she did not learn that his real name was Herman Cordero until after she was arrested. Campbell testified that she had seen the defendant and Cordero, whom she knew as Jun, together ‘[v]ery many’ times, and she described the two men as ‘[v]ery tight ... very close.’

“While the defendant and Campbell were in the motel room, the defendant expressed concern that ‘they're’ going to connect him and her together because his iPhone, left in the car, contained her first and last name in its directory. Campbell stated that when she asked the defendant who ‘they’ were, the defendant avoided answering the question. After some further discussion, Campbell called Eric Pearson to ask that he rent a separate room for the defendant. Thereafter, Campbell drove to her home in Bristol to retrieve clothing for the defendant because his jeans were muddy and he was wet and cold. Campbell testified that when she returned with the clothing and asked the defendant why he was wet, he replied that he was going to ‘commit a heist’ in Watertown but the building was closed, and that the police had chased him through a muddy wooded area, believing that he was the person who had been spotted wearing a mask in the vicinity of the bank.

“Campbell also testified that on April 2, 2008, the defendant asked her for a ride to the court in Bridgeport. Campbell agreed and drove to Waterbury in her burgundy Buick LeSabre where she...