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State v. Simmons

Court of Appeals of Connecticut

March 26, 2019


          Argued March 20, 2018

         Procedural History

         Substitute information charging the defendant with two counts of the crime of assault in the first degree, and with the crimes of criminal possession of a pistol or revolver and carrying a pistol without a permit, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Mullarkey, J.; verdict and judgment of guilty, from which the defendant appealed to this court; thereafter, the court, Hon. Edward J. Mullarkey, judge trial referee, granted the defendant's motion for augmentation and rectification of the record. Reversed; new trial.

          Laila M. G. Haswell, senior assistant public defender, with whom, on the brief, was Lauren Weisfeld, chief of legal services, for the appellant (defendant).

          Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Chris A. Pelosi, senior assistant state's attorney, for the appellee (state).

          Sheldon, Prescott and Bear, Js.


          PRESCOTT, J.

         In this criminal case, a witness for the state, George Harris, was promised that he would not be prosecuted for perjury even if he lied during his testimony. The trial court acquiesced to this agreement, despite recognizing that it ‘‘is probably against the public interest . . . .'' This appeal requires us to decide, under the circumstances of this case, whether the defendant, Kevan Simmons, is entitled to a new trial because of this concededly unlawful promise. For the reasons that follow, we conclude that this error was so egregious in nature that it undermines public confidence in the due administration of justice and that, pursuant to our supervisory powers, the defendant should be granted a new trial.

         The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims, in his initial brief, that the prosecutor committed improprieties during closing argument that deprived him of his right to a fair trial, including, among other things, suggesting to the jury that it could consider as substantive evidence a prior statement of Harris that was admitted at trial only for impeachment purposes, in which he identified the defendant as his assailant. We later granted the defendant permission to file a supplemental brief addressing an additional claim of prosecutorial impropriety, namely, whether the defendant's right to due process was violated by the state's failure to disclose to him, prior to trial, certain exculpatory evidence relevant to the veracity of the detective who took a statement from the defendant. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

         After oral argument before this court, and on the basis of our review of the record, we ordered the parties, sua sponte, to file additional supplemental briefs addressing an unpreserved claim of error not raised by the parties, namely, ‘‘(1) whether the state's agreement not to prosecute George Harris for any future acts of perjury committed while testifying for the state at the defendant's trial constituted plain error because it violates the public policy of this state against immunizing perjured testimony; see General Statutes § 54-47a; see also State v. Giraud, 258 Conn. 631, 634-35, 783 A.2d 1019 (2001); and (2) if so, whether such error was structural error or subject to harmless error analysis.'' Each party filed a supplemental brief. In its brief, the state conceded that its grant of immunity to Harris was improper. We later asked the parties to submit additional supplemental briefs addressing whether this court should exercise its supervisory authority to reverse the conviction. Because we exercise our supervisory powers to order a new trial for the defendant on the basis of the improper grant of immunity to Harris, we do not reach the merits of the remaining claims raised by the defendant.[1]

         The jury reasonably could have found the following facts. A shooting occurred on Bedford Street in Hartford on March 28, 2013, involving the defendant; Harris, his friend; and Joaquin Cedeno. Specifically, at approximately 9:22 p.m. that day, the defendant and Harris were walking through the Bedford mall, a term commonly used to describe a cluster of apartment buildings on either side of Bedford Street, when they encountered Cedeno standing on the front stoop of an apartment building.

         Cedeno and the defendant began arguing. The argument quickly escalated into a physical fight. Harris tried to break up the fight but was unsuccessful. During the fight, the defendant pulled out a gun and pointed it at Cedeno. Cedeno attempted to push the gun away from himself, but the defendant fired several gunshots, hitting both Cedeno and Harris. Cedeno, Harris, and the defendant then all ran from the scene in different directions.

         Officer Robert Fogg of the Hartford Police Department, who was working nearby, received a dispatch that gunshots had been fired at 137 Bedford Street. Fogg drove to the location. When he arrived, he found Harris, who had been shot in the leg, lying in an alleyway just south of 137 Bedford Street. Harris did not name his shooter and only told Fogg to relay a message to his mother that he loved her. Harris was taken to a hospital by ambulance.

         At 9:36 p.m., Officer Bartosz Kubiak was dispatched to 378 Garden Street, a location close to the scene of the shooting, after someone reported a serious assault with a firearm. When Kubiak arrived, Cedeno was sitting on the front steps of 378 Garden Street. Cedeno's pants, T-shirt, and sweatshirt were stained with blood, and it appeared to Kubiak that Cedeno had been shot several times on the right side of his body. Cedeno did not indicate to Kubiak who had shot him. Cedeno was also transported to a hospital. Kubiak searched the surrounding area for evidence relating to the shooting but did not find a weapon.

         Approximately ten minutes after the shooting, the defendant returned to the scene of the shooting on Bedford Street. He approached Fogg, and the two began talking. Fogg knew that the defendant and Harris were friends, so Fogg relayed to the defendant the message Harris had asked Fogg to give to Harris' mother. Fogg also asked the defendant if he had seen anything with respect to the shooting, and the defendant replied that he had not.

         On March 30, 2013, two days after the shooting, Detective Christopher Reeder spoke to Harris at the hospital. Harris told Reeder that, on the night of the shooting, he was walking through Bedford mall with a person nicknamed ‘‘Ghost'' when he heard gunshots and realized he had been shot. He described the shooter as a black male wearing black clothing. Reeder told Harris that the police had video that captured the incident. Harris then rolled over in his hospital bed, sighed, and said, ‘‘You ain't even here; do what you gotta do.'' Harris also told Reeder that he might have seen ‘‘Boobie, '' the nickname of Cedeno, at the shooting.

         That same day, Reeder also questioned Cedeno about the shooting. Cedeno described his shooter as a black male of average build, about five feet, eight inches tall, and between twenty and twenty-five years old. Cedeno also told Reeder that, on the night of the shooting, he had been hanging out in Bedford mall when he was approached by the shooter. Cedeno recalled that the two got into an argument, during which the shooter took out a gun and fired it at Cedeno. Cedeno told Reeder that, after the gunfire broke out, he ran through an alleyway between 133 and 135 Bedford Street, and made it to Garden Street before he realized that he had been shot and collapsed.

         On April 19, 2013, Harris was arrested on drug charges. After reading Harris his Miranda[2] rights, Reeder began to question Harris about the shooting incident on Bedford Street. Harris relayed to Reeder a version of events similar to that which he had given when he was questioned about the shooting in the hospital. Reeder then showed Harris a video comprised of footage recovered from security cameras attached to various apartments on Bedford Street (video) that depicted the shooting. Harris once again pointed out ‘‘Ghost'' in the video, but did not offer any additional details about the shooting or identify himself on the video.

         While incarcerated on the drug charges, Harris made a phone call to his mother, during which he implicated the defendant as his shooter. That call was recorded by the correctional facility.

         On May 2, 2013, the defendant was arrested on charges unrelated to the shooting of Harris and Cedeno. That day, Reeder, Detective Renee LaMark-Muir, and Detective Reginald Early interviewed the defendant. Reeder showed the defendant the video of the shooting. Afterward, Early presented the defendant with a statement that he represented to the defendant had been given to the police by Harris. Early, however, had fabricated the entire statement in order to encourage the defendant to confess that he was the shooter on the belief that Harris had already inculpated him. In the fabricated statement, Harris purportedly told the police that Cedeno had attempted to rob him and the defendant at gunpoint, and that the defendant had shot Cedeno in self-defense. The fabricated statement further provided that the defendant also had shot Harris by accident.[3]

         After Early read the fabricated statement to the defendant, he became upset and began crying. Early then began questioning the defendant about the shooting, and the defendant gave a written statement in which he admitted that he had shot Cedeno and Harris. Specifically, the defendant stated that Cedeno had attempted to rob the defendant and Harris, and that the defendant was forced to shoot Cedeno in self-defense but hit Harris, too. The defendant also stated that he had found the gun with which he shot Cedeno and Harris earlier that day near a dumpster and, after the shooting, ran and hid the gun before the police arrived. He stated that he returned to Bedford Street after shooting Cedeno and Harris to make sure that Harris was okay. Finally, the defendant admitted that he was the person depicted in the surveillance video speaking to Officer Fogg after the shooting.

         On October 1, 2014, the state filed the operative substitute information, in which it charged the defendant with two counts of assault in the first degree in violation of § 53a-59 (a) (5), and one count each of criminal possession of a pistol or revolver in violation of § 53a-217c (a) (1) and carrying a pistol without a permit in violation of § 29-35 (a). On October 8, 2014, the jury trial began.

         On the first day of trial, the state called Harris as a witness during its case-in-chief. Harris' attorney was present and advised Harris to invoke his fifth and fourteenth amendment privilege against self-incrimination. Harris did so and refused to answer any questions by the state. A colloquy then ensued between the court, the state, and defense counsel regarding a potential grant of immunity for Harris.

         At that time, the state agreed not to prosecute Harris for any crimes stemming from his involvement in the March 28, 2013 shooting. His attorney rejected the state's offer of immunity as insufficient because if Harris were to testify he could expose himself to federal criminal liability with respect to the Bedford Street shooting incident and might implicate himself in an unrelated shooting in 2011 for which he had just recently been served a warrant. The state represented to the court that it would inquire as to whether it could obtain federal immunity for Harris with respect to his testimony at the defendant's trial. The court then continued Harris' appearance until the next day.

         On October 9, 2014, the state again called Harris as a witness. Before Harris testified, the court inquired as to whether the state and Harris had come to an agreement regarding the grant of immunity. Harris' counsel represented to the court that he believed an agreement had been reached. The following exchange then ensued between defense counsel, the court, and the prosecutor:

‘‘[Harris' Counsel]: And so [the grant of immunity] includes transactional immunity to the events related to the-on the day of the shooting, directly and indirectly. It involves use immunity, so none of his words could be used directly against him in this or any other proceeding in state or federal court or anywhere else. It also includes derivative use so that his words can't be used to investigate and then come up with other evidence that can be used against him in any proceeding. There are other issues that we have talked about that I think need to be addressed.
‘‘The Court: Go ahead.
‘‘[Harris' Counsel]: One is that the immunity statute does not immunize a witness from committing perjury at the time.
‘‘The Court: It does not.
‘‘[Harris' Counsel]: And my understanding is that there is a tape recording or the prosecuting authority believes that it has a tape recording of my client saying something related to his testimony. So, I have concerns about exposure to perjury, and my understanding is that there has been an agreement that there wouldn't be any perjury prosecution related to my client's testimony today.
‘‘[The Prosecutor]: That's correct, Your Honor.
‘‘The Court: Okay. Well, [counsel], I must compliment you. I have been in the criminal justice system for forty-two and one-half years. I've never heard of anybody getting that agreement. But it's an agreement the state made. That's their decision. Now, are we ready to testify?''[4] (Emphasis added.)

         Fully immunized, Harris was then administered the oath for testifying witnesses by the clerk in the presence of the jury. Although the oath taken by Harris was not transcribed, the required contents of the oath are set forth in General Statutes § 1-25, which provides that the oath administered to witnesses shall be: ‘‘You solemnly swear or solemnly and sincerely affirm, as the case may be, that the evidence you shall give concerning this case shall be the truth, the whole truth and nothing but the truth; so help you God or upon penalty of perjury.''

         Harris then testified that he had been on Bedford Street on the night in question, and had been shot in the leg and hospitalized. He indicated that he and the defendant had been friends for eight years, and that he also knew Cedeno, the other gunshot victim. The state asked Harris a series of additional questions about his recollections from the night he was shot, including who he was with that night, what he and others were wearing, and whether he knew the identity of the shooter. Harris testified that he could not recall any details of the night he was shot because he had been intoxicated. He also testified that he was unable to identify anyone, including himself, from the videotape of the incident, which the state played for him in court, stopping it at various points to ask questions.[5] He did not name the defendant as his shooter.

         The state, however, attempted to impeach Harris' testimony that he did not know the identity of his shooter by questioning him about the May 6, 2013 telephone call he made to his mother while he was incarcerated, during which he identified the defendant as the person who shot him. After establishing that he had signed a consent form when he was incarcerated acknowledging that his telephone calls would be recorded, the state asked Harris if he had talked to his mother about this case. In particular, the prosecutor asked him if he had told his mother that he was not going to cooperate with the police because he believed that he could only receive a thirty day sentence for refusing to testify, the defendant was in a holding cell nearby, and the police had shown him a videotape of ‘‘this nigga shooting at me and this dude.'' He repeatedly responded that he could not remember what he had told his mother, including whether he had told her that he could identify both himself and the defendant in the surveillance videotape he was shown by the police. At this point, the jury was excused so that the state could play the recording of the telephone call for the witness in an attempt to refresh his recollection.

         Outside the presence of the jury, the following colloquy between the court and the prosecutor about the immunity agreement ensued during a discussion of the admissibility of the call from Harris to his mother:

‘‘[The Prosecutor]: The state will be offering [the recording of the telephone call] as a prior inconsistent statement by Mr. Harris. Now, if Mr. Harris-
‘‘The Court: Well, are you sure that he does not have early onset dementia? Because for a young man, his memory's shot.
‘‘[The Prosecutor]: Well, this is the way you could refresh his memory, Your Honor.
‘‘The Court: Well, you're the one who agreed not to prosecute him for perjury.
‘‘[The Prosecutor]: I agree.
‘‘The Court: Which is probably against the public interest, but I didn't step in.
‘‘[The Prosecutor]: There's a lot of issue with public interest in this case.
‘‘The Court: I must say this amount of perjury actually offends me.'' (Emphasis added.)

         Harris was then questioned before the jury about what he had said to his mother during the prison phone call. After Harris denied having told his mother that he could identify himself and the defendant in the videotape he had been shown by the police and that he could not remember making such a statement, portions of the audiotaped recording of the phone call were played to the jury without objection.

         After the state had completed its direct examination of Harris, the court gave the jury the following instruction: ‘‘Ladies and gentlemen, just as I gave you the instruction a few minutes ago on prior misconduct by a witness, evidence has been presented through this witness that statements made outside the court are inconsistent with some of his trial testimony. You should consider that out-of-court evidence only as it relates to his credibility. It's not substantive evidence. In other words, you consider it evidence as you would any other evidence inconsistent with his conduct in determining the weight to give to his testimony in court.''

         Despite the court's instruction that the phone call between Harris and his mother could not be used for substantive purposes, the prosecutor, during closing argument, drew the jury's attention to specific portions of that phone call, arguing as follows: ‘‘One point in his testimony that he's talking to his mom: First, I think I am being charged with everything [the defendant] is. Cop told me the warrant is for not cooperating, and I'm like, yeah, I'll take that. Makes sense. If you would a seen the video they showed me, I could a got charged with the same thing he got charged with. They showed me the video. When they first showed me the video, I'm telling them: I don't know who that is. That's why they saying I won't cooperate. I'm like, that's me. That's Boobie. I don't know who that is. He like, who's that? That's Ghost. That's Ghost. They showed everything. When I sat down, when I couldn't move, they showed [the defendant] walked up to me. Then they showed him run off. Then they show this girl run out, tie my leg up. They showed the whole thing.

         ‘‘They smacked him with the charges right there. He testified that they're arrested at the same time, that they were at [the] Hartford lockup at the police department, and they were placed in cells next to each other. They smacked him with the charges right there. They had us together. They really put us together and this ‘n' shot me. They just got us together. They don't care. And then he laughs. I'm in a holding cell. I don't know how he seen me. I'm asleep. He seen me. They put him in a cell like two cells down. It's like, one, two in the morning. All I hear is: George. George. Come on, man. I know you hear me. I know you hear me. I just seen you. I just seen you. I'm like, this ‘n' really trying to talk to me? I'm in jail ‘cause of him right now ‘cause he shot me in the leg.

         ‘‘That's testimony, ladies and gentlemen.

         That's not given to police or the state's attorney's office. Now, I'm going to-now, that's another factor, as I said. [The defendant]-Mr. Harris places him at the scene as the shooter.'' (Emphasis added.) Thus, the state attempted to make substantive use of Harris' recorded phone call to his mother despite the fact that the court had admitted it only for impeachment purposes and not for the truth of any of Harris' statements made during the phone call.

         On October 14, 2014, the jury returned a verdict of guilty on all counts of the operative substitute information. On January 6, 2015, the court sentenced the defendant to twenty-three years of incarceration followed by ten years of special parole. This appeal followed. Additional facts and procedural history will be set forth as necessary.

         The defendant claims that the state's agreement not to prosecute Harris for any act of perjury he committed while testifying for the state during the defendant's trial constituted plain error because it clearly violated a public policy against immunizing perjured testimony. This improper grant of immunity, the defendant contends, constitutes structural error that obviates the need to engage in harmless error analysis and warrants a new trial. In the alternative, the defendant argues that, if harmless error analysis applies, the state has failed to meet its burden to show that the error was harmless beyond a reasonable doubt. Finally, the defendant argues that we should exercise our supervisory authority over the administration of justice to reverse his conviction and order a new trial.

         The state contends that, although there was error, that error was not structural in nature and did not cause the defendant manifest injustice. Additionally, the state argues that this court should not exercise its supervisory powers over the administration of justice to reverse the conviction and order a new trial.

         Although we ultimately decide to reverse the defendant's conviction and order a new trial pursuant to our supervisory authority, it is, in our view, helpful to discuss the question of structural error and harm to explain why we choose to resolve the case by resort to our supervisory powers rather than by employing the structural error doctrine or through an evaluation of harm to the defendant. See State v. Rose, 305 Conn. 594, 606-607, 46 A.3d 146 (2012).


         We begin with a discussion of the plain error doctrine. It is axiomatic that an unpreserved claim of error, i.e., one that was neither distinctly raised before nor decided by the trial court, may be considered pursuant to the plain error doctrine. ‘‘[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine . . . is not . . . a rule of review ability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . .

         ‘‘An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily discernable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error claim presented in light of the record.

         ‘‘Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application. . . . [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . . . In State v. Fagan, [280 Conn. 69');">280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236 (2007)], [our Supreme Court] described the two-pronged nature of the plain error doctrine: [An appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.'' (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Sanchez, 308 Conn. 64, 76-78, 60 A.3d 271 (2013).

         The state concedes that its improper immunity agreement with Harris violated the first prong of the plain error doctrine because the error is discernible on the face of a factually adequate record. Perhaps more significantly, the record reflects that the trial court and the prosecutor either knew or should have known that the promise of immunity to Harris by the state was improper[6] and yet, the court permitted Harris to testify pursuant to an unlawful agreement that he could not be prosecuted for perjury even if he lied during his testimony. Despite the state's concession, it is important for us to explicate fully the reasons why such an agreement violates public policy and undermines confidence in our judicial system.

         ‘‘[A] primary function of a criminal trial is to search for the truth. . . . The trial court has a duty to preside at a trial and to take appropriate actions, when necessary, that promote truth at a trial.'' (Citation omitted.) State v. Kirker, 47 Conn.App. 612, 617, 707 A.2d 303, cert. denied, 244 Conn. 914, 713 A.2d 831 (1998); see also State v. Mendoza, 119 Conn.App. 304, 321, 988 A.2d 329 (court required ‘‘to balance the defendant's interest in a fair proceeding with a trial's fundamental and ever present search for the truth''), cert. denied, 295 Conn. 915, 990 A.2d 868 (2010); Riley v. Goodman, 315 F.2d 232, 234 (3d Cir. 1963) (‘‘We have long abandoned the adversary system of litigation which regards opposing lawyers as players and the judge as a mere umpire whose only duty is to determine whether infractions of the rules of the game have been committed. . . . A trial is not a contest but a search for the truth so that justice may properly be administered.'' [Citation omitted.]).

         ‘‘From ancient times it has ever been held essential that witnesses in court proceedings swear or affirm before giving evidence.'' (Internal quotation marks omitted.) Cologne v. Westfarms Associates, 197 Conn. 141, 153, 496 A.2d 476 (1985). Our statute criminalizing perjury plays a critical role in the search for the truth at trial because it significantly deters a witness who takes an oath or an affirmation from testifying falsely at a time when the witness' testimony will significantly impact the rights of a defendant. See General Statutes § 53a-156 (a); Maryland v. Craig, 497 U.S. 836, 845-46, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1989) (confrontation clause ‘‘insures that the witness will give his statements under oath-thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury'' [internal quotation marks omitted]);[7] State v. Tye, 248 Wis.2d 530, 540-41, 636 N.W.2d 473 (2001) (‘‘[t]he purpose of an oath or affirmation is to impress upon the swearing individual an appropriate sense of obligation to tell the truth . . . by creating liability for perjury'' [footnotes omitted]); 58 Am. Jur. 2d 884-86, 888-89, Oath and Affirmation §§ 1, 5 and 6 (2012).

         Section 54-47a sets forth the requirements regarding the grant of immunity to a witness who has refused to testify pursuant to his privilege against self-incrimination guaranteed by the fifth and fourteenth amendments to the United States constitution. Section 54-47a (a) provides in relevant part that ‘‘[w]henever in the judgment of the Chief State's Attorney, a state's attorney or the deputy chief state's attorney, the testimony of any witness . . . in any criminal proceeding involving . . . felonious crimes of violence . . . is necessary to the public interest, the Chief State's Attorney, the state's attorney, or the deputy chief 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 testify or produce evidence subject to the provisions of this section.'' (Emphasis added.)

         Section 54-47a (b) provides in relevant part that ‘‘[u]pon the issuance of the order such witness shall not be excused from testifying . . . on the ground that the testimony or evidence required of him 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 or produce evidence, and no testimony or evidence so compelled, and no evidence discovered as a result of or otherwise derived from testimony or evidence so compelled, may be used as evidence against him in any proceeding, except that no witness shall be immune from prosecution for perjury or contempt committed while giving such testimony or producing such evidence . . . .''[8] (Emphasis added.)

         In State v. Giraud, supra, 258 Conn. 634-38, our Supreme Court considered a related immunity issue. Specifically, the defendant in Giraud claimed that the trial court improperly had failed to grant a defense witness immunity from prosecution. Id., 634. Prior to that witness being sworn, the defendant had moved that the state be compelled to grant the witness immunity with respect to his testimony, ‘‘with the exception [of] any perjury committed by him . . . .'' (Internal quotation marks omitted.) Id. In rejecting the defendant's claim, our Supreme Court noted that ‘‘[t]he request did not distinguish between perjury committed before [the witness] was granted immunity and perjury committed by him when testifying after such a grant of immunity. Immunity, of course, may not be a license to lie while giving immunized testimony.'' (Emphasis added; internal quotation marks omitted.) Id., 634-35. Similarly, the Supreme Court of the United States has consistently held that grants of immunity cannot extend to future perjurious testimony given by a witness-i.e., perjury committed during the course of the immunized testimony. See United States v. Apfelbaum, 445 U.S. 115, 127-30, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980); see also Glickstein v. United States, 222 U.S. 139, 143, 32 S.Ct. 71, 56 L.Ed. 128 (1911) (testimony given under a license to commit perjury is not ‘‘testimony in the true sense of the word'').

         In the present case, it is undisputed that the immunity obtained by Harris included immunity from prosecution for any perjury that Harris might commit while testifying as a witness for the state against the defendant. The state promised immunity to overcome Harris' invocation of his fifth and fourteenth amendment privilege against self-incrimination and to force him to testify. The promise plainly violated the strong public policy that is reflected in the statutory prohibition contained in § 54-47a (b).[9]

         A jury is entitled to assume that the statements of a witness who testifies at trial ‘‘carr[y] the sanction of the oath which [he or] she ha[s] taken . . . .'' Ruocco v. Logiocco, 104 Conn. 585, 591, 134 A. 73 (1926). In the present case, the transcript of the proceedings indicates that Harris was sworn in by the clerk in the presence of the jury. Without any knowledge of the improper immunity agreement, the jury presumably believed that Harris was testifying under the sanction of the oath that he took ‘‘upon the penalty of perjury.'' General Statutes § 1-25. Unbeknownst to the jury, however, his oath had no significance because Harris knew that the immunity agreement meant he was free to lie without subjecting himself to legal jeopardy. In other words, a fraud was perpetrated on the jurors by permitting Harris to swear to a meaningless oath that gave his testimony an indicium of reliability that was not in fact present. In sum, the improper grant of immunity violates public policy and undermines the perception of and confidence in our system of justice.


         Having explained why the grant of immunity in this case violates public policy, we next turn to the question of whether this impropriety constitutes structural error that obviates the need to engage in harmless error analysis to determine whether the defendant suffered a manifest injustice. The state contends that the improper grant of immunity does not constitute a structural error that would excuse the defendant from establishing that it caused a manifest injustice to him because the harm suffered by the defendant, if any, is not ‘‘unquantifiable or indeterminate'' and was not of ‘‘such pervasiveness or magnitude'' to rise to the level of structural error.

         This question appears to be a matter of first impression, as our research has not revealed any reported cases addressing it.[10] The United States Supreme Court recently set forth a comprehensive discussion of the structural error doctrine: ‘‘The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial. Thus, the defining feature of a structural error is that it affect[s] the framework within which the trial proceeds, rather than being simply an error in the trial process itself. . . . For the same reason, a structural error def[ies] analysis by harmless error standards. . . .

         ‘‘The precise reason why a particular error is not amenable to that kind of analysis-and thus the precise reason why the Court has deemed it structural-varies in a significant way from error to error. There appear to be at least three broad rationales.

         ‘‘First, an error has been deemed structural in some instances if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest. This is true of the defendant's right to conduct his own defense, which, when exercised, usually increases the likelihood of a trial outcome unfavorable to the defendant. . . . That right is based on the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty. . . . Because harm is irrelevant to the basis underlying the right, the Court has deemed a violation of that right structural error. . . .

         ‘‘Second, an error has been deemed structural if the effects of the error are simply too hard to measure. For example, when a defendant is denied the right to select his or her own attorney, the precise effect of the violation cannot be ascertained. . . . Because the government will, as a result, find it almost impossible to show that the error was harmless beyond a reasonable doubt . . . the efficiency costs of letting the government try to make the showing are unjustified.

         ‘‘Third, an error has been deemed structural if the error always results in fundamental unfairness. For example, if an indigent defendant is denied an attorney or if the judge fails to give a reasonable-doubt instruction, the resulting trial is always a fundamentally unfair one. See Gideon v. Wainwright, 372 U.S. 335');">372 U.S. 335');">372 U.S. 335');">372 U.S. 335, [343-45], 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to an attorney); Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (right to a reasonable-doubt instruction). It therefore would be futile for the government to try to show harmlessness.

         ‘‘These categories are not rigid. In a particular case, more than one of these rationales may be part of the explanation for why an error is deemed to be structural. . . . For these purposes, however, one point is critical: An error can count as structural even if the error does not lead to fundamental unfairness in every case. See [United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006)] (rejecting as inconsistent with the reasoning of our precedents the idea that structural errors always or necessarily render a trial fundamentally unfair and unreliable . . . [citations omitted; internal quotation marks omitted]).[11]Weaver v. Massachusetts, ...

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