State v. Pommer

• Decision Date: 30 September 2008
• Docket Number: No. 27171.,27171.
• Citation: 110 Conn.App. 608,955 A.2d 637
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Richard POMMER.

955 A.2d 637

110 Conn.App. 608

STATE of Connecticut v. Richard POMMER.

No. 27171.

Appellate Court of Connecticut.

Argued March 13, 2008.

Decided September 30, 2008.

Laila M.G. Haswell, assistant public defender, for the appellant (defendant).

Susan C. Marks, supervisory assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Kevin Doyle, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and DiPENTIMA and PELLEGRINO, Js.

FLYNN, C.J.

The defendant, Richard Pommer, appeals from the judgment of conviction, rendered after a jury trial, of one count of robbery in the first degree in violation of General Statutes § 53a-134(a)(3), one count of robbery in the second degree in violation of General Statutes § 53a-135(a)(2) and one count of tampering with a witness in violation of General Statutes § 53a-151(a). The defendant claims that the evidence was insufficient to sustain his conviction of tampering with a witness. Specifically, the defendant first claims that the defendant's alleged interference with a witness must relate to his interference with the witness' testimony, not to discussions with the police. In his reply brief, he later refines this insufficiency argument by stating that the intent required must be an intent to prevent a witness from testifying at trial and possibly assisting the state in obtaining a conviction. Second, the defendant claims there was no evidence that when the alleged threat was made, he believed that an official proceeding was pending or about to be instituted. Finally, he contends that the testimony with which he allegedly had interfered must have been testimony given under oath because General Statutes § 53a-146(1) defines "official proceeding" by limiting it to a proceeding in which evidence may be taken under oath, and there was insufficient evidence to establish this. We affirm the judgment of the trial court.

The defendant pleaded not guilty and, after a jury trial, he was convicted of all charges, including the one count of tampering with a witness, which is the subject of this appeal. The defendant was sentenced to eighteen years incarceration, execution suspended after twelve years, and three years probation. This appeal followed.

The following facts, which might reasonably have been found by the jury, are relevant to our disposition of the defendant's appeal. On October 19, 2003, two individuals were robbed in New Haven by the defendant, Chaz Poole and James Draughn. Melissa Fragola, the girlfriend of Poole, drove the getaway car. New Haven police were able to obtain Fragola's photograph from a videotape showing her using one of the victim's stolen credit cards at a gasoline station and disseminated copies to local television news bureaus. When Fragola saw her photograph on a news broadcast, she informed Poole and indicated that she would turn herself in to the police. When Fragola went to the Hamden police station with Poole, she was sent back home. The following day, New Haven police officers came to her residence and brought her to their station where she provided a taped statement. On her second and third visit to the police station, Fragola selected the defendant's and Draughn's photographs, identifying them as participants in the robbery.

After Fragola's photograph had been broadcast, the defendant telephoned Poole and informed him of the broadcasting and that Fragola had turned herself in to the police and implicated the participants in the robbery. The defendant inquired of Poole as to whether he also would go to the police. When Poole replied in the affirmative, the defendant was not happy and indicated to Poole that he loved him like a brother, but if Poole went to the police, it would be "[Poole's] ass."

I

We first discuss reviewability of the claims. At the close of the state's case, the defendant moved for a judgment of acquittal on the tampering charge on the ground that his statement to Poole did not constitute a threat. The court denied the defendant's motion. At the close of his case, the defendant renewed his motion for a judgment of acquittal on the tampering count. On appeal, the defendant abandons discussion of whether his statement was a threat and, inter alia, raises an issue not raised at the trial level, which is whether he had the required intent.

The defendant contends that his unpreserved claim of insufficiency of the evidence is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree to review the defendant's claim because any defendant who is 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 Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Padua, 73 Conn.App. 386, 392, 808 A.2d 361 (2002), rev'd in part on other grounds, 273 Conn. 138, 869 A.2d 192 (2005).

II

We next turn to all of the defendant's claims that there was insufficient evidence to permit the jury to find beyond a reasonable doubt that he tampered with a witness. At the outset, we observe that the defendant's arguments in his reply brief have shifted from those in his main brief. The defendant maintained in his principal brief that a "defendant's interference with the witness must relate to his or her testimony, not to discussions with the police." He also maintained that there was "no evidence on the record" that he believed that "`an official proceeding was pending or about to be instituted.'" In his reply brief, the defendant, for the first time, refers to intent and argues that a defendant's "intent must be to prevent a witness from testifying at trial and possibly assisting the state in obtaining a conviction." He goes on to state that "[t]he intent to prevent a witness from speaking to the police is not sufficient under the statute. This is because of the use of the words "`testify'" or "`testimony'" in the second element of the statute."

Review of any claim of insufficiency of the evidence introduced to prove a violation of a criminal statute must necessarily begin with the skeletal requirements of what necessary elements the charged statute requires to be proved. Such a review necessarily involves statutory construction. "Statutory construction is a question of law and therefore our review is plenary." (Internal quotation marks omitted.) State v. Burns, 236 Conn. 18, 22, 670 A.2d 851 (1996).

Once analysis is complete as to what the particular statute requires to be proved, we then review the evidence in light of those statutory requirements. Our review standard is well settled. "In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt...." (Internal quotation marks omitted.) State v. Foreshaw, 214 Conn. 540, 550, 572 A.2d 1006 (1990).

We begin by addressing the defendant's claims about what the statute requires to be proved by examining the language of the witness tampering statute. General Statutes § 53a-151(a) provides: "A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding." (Emphasis added.)

We hold that as applied to the evidence in this case, the first necessary element of the crime is that the defendant believed that an official proceeding was pending or about to be instituted and that the person tampered with was likely to be a witness. An official proceeding includes any proceeding held or that may be held before any judicial official authorized to take evidence under oath. The second element is that the defendant induced or attempted to induce a witness to withhold testimony. We set forth our analysis supporting this holding. "It is a basic tenet of statutory construction that the legislature does not intend to enact meaningless provisions.... Every word and phrase [in a statute] is presumed to have meaning, and we do not construe statutes so as to render certain words and phrases surplusage." (Citation omitted; internal quotation marks omitted.) Remax Right Choice v. Aryeh, 100 Conn.App. 373, 382, 918 A.2d 976 (2007).

"[W]e keep in mind that the legislature is presumed to have intended a reasonable, just and constitutional result." (Internal quotation marks omitted.) Fine Homebuilders, Inc. v. Perrone, 98 Conn. App. 852, 856, 911 A.2d 1149 (2006), cert. granted on other grounds, 282 Conn. 901, 918 A.2d 888 (2007). "[W]e presume that the legislature intends sensible results from the statutes it enacts.... Therefore, we read each statute in a manner that will not thwart its intended purpose or lead to absurd results.... Words in a statute must be given their plain and ordinary meaning ... unless the context indicates that a different meaning was intended." (Internal quotation marks omitted.) Id., at 856, 911 A.2d 1149.

General Statutes § 1-1 (a) provides: "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly." Pursuant to the plain meaning rule, General Statutes § 1-2z, "the meaning of a statute shall, in the first instance, be ascertained from the text of the statute...