State v. Lamantia

S
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             STATE v. LAMANTIA—SECOND DISSENT

   ECKER, J., dissenting. Our witness tampering statute,
General Statutes § 53a-151 (a), prohibits anyone who
believes ‘‘that an official proceeding is pending or about
to be instituted’’ from ‘‘induc[ing] or attempt[ing] to
induce a witness to testify falsely . . . .’’ The terms
‘‘official proceeding,’’ ‘‘witness,’’ and ‘‘testify’’ each have
a well-known meaning in the law. The three terms,
working together in the same statutory provision, estab-
lish a clear legislative purpose to criminalize only words
or conduct intended to influence another person to
make a false sworn statement, or to desist from making
a true sworn statement, in an ‘‘official proceeding.’’
An ‘‘official proceeding’’ is statutorily defined as ‘‘any
proceeding held or which may be held before any legis-
lative, judicial, administrative or other agency or official
authorized to take evidence under oath, including any
referee, hearing examiner, commissioner or notary or
other person taking evidence in connection with any
proceeding.’’ General Statutes § 53a-146 (1). A police
investigation plainly is not such a proceeding. Indeed,
we previously have recognized that our witness tamper-
ing statute does not include ‘‘situations in which the
defendant believes that only an investigation, but not
an official proceeding, is likely to occur.’’ State v. Ortiz,

312 Conn. 551

, 570, 

93 A.3d 1128

 (2014); see 

id., 568

(agreeing ‘‘that the legislature restricted the scope of
the witness tampering statute by omitting [the] words
[‘investigation,’ ‘inform,’ and ‘informant’]’’). Compare
General Statutes § 53a-151 (a) (limiting witness tamper-
ing to any person who believes ‘‘that an official proceed-
ing is pending or about to be instituted’’), with 2 A.L.I.,
Model Penal Code and Commentaries (1980) § 241.6
(1), p. 162 (witness tampering extends to any person
who believes ‘‘that an official proceeding or investiga-
tion is pending or about to be instituted’’ (emphasis
added)).
   The majority concludes that the evidence in the pres-
ent case was sufficient for the jury to find beyond a
reasonable doubt that the defendant intended to induce
a witness to testify falsely in an official proceeding
when she texted her on-again, off-again boyfriend,
shortly after he had been in a physical altercation with
her other on-again, off-again boyfriend, that they
‘‘needed to be on the same page’’ and ‘‘stick with the
same story . . . .’’ I disagree. In light of the evidence
before the jury and the state’s theory of the case at
trial, I believe that, although the evidence is sufficient
to support a reasonable inference that the defendant
intended to tamper with a suspect in a police investiga-
tion, it is insufficient to support a reasonable inference
that she intended to tamper with a witness in an official
proceeding. Because such conduct falls outside the
scope of our witness tampering statute, I would reverse
the judgment of the Appellate Court upholding the
defendant’s witness tampering conviction. Accordingly,
I respectfully dissent. In doing so, I note my agreement
with the well-reasoned dissenting opinion of Justice
D’Auria.
                            I
   As both the Appellate Court and the majority recog-
nize, ‘‘this case is replete with conflicting testimony
regarding the timing and nature of the relationships
between the various parties, as well as the events of
the night of July 24, 2015, and the early morning of July
25, 2015. It was for the jury, and not [the] court, to
resolve discrepancies in the testimony.’’ State v.
Lamantia, 

181 Conn. App. 648

, 650 n.1, 

187 A.3d 513

(2018); accord footnote 3 of the majority opinion. The
following facts, which the jury reasonably could have
found, are construed in the light most favorable to sus-
taining the jury’s verdict. See, e.g., State v. Elmer G.,

333 Conn. 176

, 183, 

214 A.3d 852

 (2019).
   The defendant was in, or recently had been in, a
romantic relationship with Jason Rajewski at the same
time that she also was romantically involved with David
Moulson. The entanglement led to a confrontation
between the two men. During the early morning hours
of July 25, 2015, Moulson left a bar in Norwich to follow
the defendant, Rajewski, and Earl F. Babcock to a house
at 18 Bunny Drive in Preston. The undisputed testimony
at trial established that Moulson had followed the defen-
dant in the past using a tracking application installed
on her cell phone.
   Moulson arrived at 18 Bunny Drive at approximately
2:30 a.m. A physical altercation between Moulson,
Rajewski, and Babcock immediately ensued. The inci-
dent took place in the driveway outside the house while
the defendant was inside. The defendant did not
observe the physical altercation and was unaware of its
occurrence until she saw a bloodied Moulson running
toward the house, with Rajewski and Babcock follow-
ing behind him. The defendant informed Rajewski and
Babcock that they should leave because Moulson was
calling the police.
   Sometime after Rajewski left Bunny Drive, but before
Jonathan Baker, a Connecticut state trooper, arrived at
Rajewski’s house to investigate the incident, the defen-
dant sent Rajewski a series of text messages. Unfortu-
nately, the text messages were not preserved or intro-
duced into evidence at the defendant’s trial. In the
absence of this direct evidence, Baker described the
text messages for the jury, after refreshing his recollec-
tion by reviewing his police report, which itself was
never admitted into evidence.1 According to Baker,2 the
defendant’s first text message to Rajewski ‘‘essentially
[said that] the cops are coming, make sure you’re bloody
and . . . [that Moulson] is abusive to her.’’ Rajewski
responded ‘‘okay.’’ Baker informed the jury that the
defendant then sent another text message telling Rajew-
ski ‘‘[t]o wait outside because the police were coming.
Then she [told Rajewski that] he’s going to stand by
her side and to delete the conversation.’’ In her next
text message, Baker continued, the defendant instruc-
ted Rajewski to ‘‘tell the police . . . that [Moulson]
stalks her.’’ Baker testified that ‘‘[the defendant] said
[Moulson] was bloody when he got there. [The defen-
dant] told [the troopers] that [Moulson] was in a bar
fight somewhere else. And . . . [Rajewski] only fol-
lowed [the defendant] to that residence [on Bunny
Drive] because he loves her.’’ According to Baker,
‘‘[e]ssentially, [the defendant was] telling [Rajewski]
that they need to stick with the same story and it would
be good. They have to match.’’
   Baker testified that Rajewski became upset and told
the defendant ‘‘no, I’m telling the truth. [Moulson] tried
to kick my ass, so I beat him up. . . . [E]nough is
enough.’’ Baker added that the defendant next texted
Rajewski ‘‘a [question] mark’’ and then the following
message: ‘‘[Moulson’s] ducked up. Your story has to
match mine. [Moulson] looks crazy. He deserves it
because of the beatings he’s [done] to me.’’ Baker con-
tinued: ‘‘[The defendant was] telling [Rajewski] that
[Moulson] told [the police] that [Rajewski] attacked
[Moulson] in his car.’’ Rajewski responded that ‘‘there’s
no story,’’ and ‘‘[Rajewski] essentially [got] angry with
[the defendant], now saying that [she had] brought
[Moulson] there for [Rajewski] to do that. She says [she]
didn’t know.’’ According to Baker, Rajewski texted the
defendant that he ‘‘didn’t know [Moulson] was going
to come out swinging like an idiot. [Rajewski] then
[texted the defendant] that he’s not going to tell a story,
[that] he’s just going to tell what happened. He—
rephrase. That was [the defendant] saying not the story,
just what I know, I saw nothing.’’ Baker testified that
Rajewski then texted the defendant that ‘‘the cops are
here now. And the last two [texts from the defendant
were sent] either while I’m talking to [Rajewski] or
while [Rajewski was] being processed.’’ In those final
texts, the defendant asked Rajewski if ‘‘he [took] the
keys’’ and indicated that ‘‘the truth is fine, but you two
[i.e., Rajewski and Moulson] are telling two different
stories, [and] you need to be on the same page.’’
  The state’s legal theory at trial warrants mention
because it contains a fatal flaw that adumbrates the
evidentiary deficiency requiring reversal of the defen-
dant’s witness tampering conviction. In its closing argu-
ment, the state informed the jury that, in order to find
the defendant guilty of tampering with a witness, the
state need only prove that the defendant intended to
tamper with a witness in a police investigation. The
state argued that ‘‘the requirement of the defendant
believing an official proceeding was about to be insti-
tuted can be satisfied if the defendant knew that she
could have been implicated in a crime and she asked,
threatened, or induced a witness to withhold evidence
from [the] police. It does not matter that it was in the
investigative phase of the criminal justice process. It
doesn’t matter that the police were still figuring out
what happened. It just matters that she intended to
prevent that witness from speaking with [the] police
or [from] telling the police the truth.’’ (Emphasis
added.) The state further argued that the defendant
‘‘[c]learly . . . knew that a proceeding ha[d] been insti-
tuted’’ and ‘‘[c]learly . . . knew an investigation was
currently in [progress]’’ because she ‘‘knew the cops
were involved’’ and she had spoken to the police. This
theory of guilt was manifestly erroneous as a matter
of law.
                             II
   Two points require comment before addressing the
case law construing our witness tampering statute and
the requirement that the defendant specifically intend
to induce false testimony in an ‘‘official proceeding.’’
Both points relate to a troubling lack of focus in the
state’s theory of criminal wrongdoing at trial. First, the
state never informed the jury precisely which statement
or statements in the defendant’s text messages either
were false or sought to induce Rajewski to testify
falsely; nor did it identify for the jury the ‘‘official pro-
ceeding’’ in which the defendant expected Rajewski’s
testimony would occur (e.g., the prosecution of Rajew-
ski, Moulson or Babcock, or some combination thereof,
for the crime of assault or breach of the peace, the
infraction of creating a public disturbance, or some
other charge). These are not minor deficiencies in a
prosecution charging a defendant with tampering with
a witness (i.e. attempting to induce a witness to testify
falsely) in an official proceeding. Although I do not
doubt that the evidence is sufficient to conclude that the
defendant intended to promote an inaccurate version
of events in some fashion, it is a matter of significant
concern to me that the state failed to identify the spe-
cific falsehood or the specific proceeding serving as
the basis of the witness tampering conviction.3 It was
the state’s burden to prove beyond a reasonable doubt
that the defendant intended to induce ‘‘false testimony,’’
and, in order to fulfill that burden, the state had to
prove the falsity of one or more statements that the
defendant asked Rajewski to make to the police.
Although the defendant’s suggestion that she and
Rajewski should ‘‘match’’ their ‘‘stories’’ to be ‘‘on the
same page’’ certainly is suggestive of a desire to provide
a false version of one or more facts, the state neglected
to identify precisely what part or parts of the defen-
dant’s ‘‘story’’ were false or were intended to induce
false testimony, just as it failed to identify the official
proceeding with which the defendant intended to inter-
fere. In light of the unfortunate lack of specificity per-
vading the defendant’s trial in this case, we should exer-
cise care on appeal to ensure that the evidence is
sufficient to sustain a conviction under our witness
tampering statute.
  Second, the state erroneously informed the jury that
a police investigation is an official proceeding, even
though the statutory definition of an ‘‘official proceed-
ing’’ plainly excludes police investigations. See General
Statutes § 53a-146 (1). The state compounded this error
by arguing that it had satisfied its burden of proof with
respect to the defendant’s belief that an official proceed-
ing was pending or imminent because it had established
that the defendant ‘‘knew the cops were involved’’ and,
therefore, ‘‘[c]learly . . . knew that a proceeding ha[d]
been instituted.’’4 I recognize that the trial court prop-
erly instructed the jury on the essential elements of
the offense, but, nonetheless, neither the trial court,
defense counsel, nor the state corrected this egregious
misstatement of law. See State v. Otto, 

305 Conn. 51

,
77, 

43 A.3d 629

 (2012) (‘‘prosecutors are not permitted
to misstate the law . . . and suggestions that distort
the government’s burden of proof are likewise
improper’’ (citation omitted)). The state’s reliance on
an erroneous legal theory informs my view of the facts
that the jury reasonably and logically could have found
in the present case.
                            III
   I begin my analysis with the language of our witness
tampering statute and the governing case law. Section
53a-151 (a) provides that ‘‘[a] person is guilty of tamper-
ing with a witness if, believing that an official proceed-
ing 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.’’5 A ‘‘wit-
ness’’ is defined as ‘‘any person summoned, or who may
be summoned, to give testimony in an official proceed-
ing.’’ General Statutes § 53a-146 (6). An ‘‘official pro-
ceeding’’ is ‘‘any proceeding held or which may be held
before any legislative, judicial, administrative or other
agency or official authorized to take evidence under
oath, including any referee, hearing examiner, commis-
sioner or notary or other person taking evidence in
connection with any proceeding.’’ General Statutes
§ 53a-146 (1). ‘‘Thus, the witness tampering statute has
two requirements: (1) the defendant believes that an
official proceeding is pending or about to be instituted;
and (2) the defendant induces or attempts to induce a
witness to engage in the proscribed conduct. These
requirements serve the purpose of part XI of the Con-
necticut Penal Code, in which § 53a-151 (a) is found,
as they punish those who interfere with the courts and
our system of justice.’’ (Internal quotation marks omit-
ted.) State v. Ortiz, 

supra,

 

312 Conn. 562

. These two
requirements are conjunctive and interactive—the
criminal conduct consists of words or conduct exhib-
iting an intent to induce false testimony in an official
proceeding. See 

id., 554

 (‘‘[b]ecause the jury reasonably
could have found that the defendant believed that an
official proceeding was about to be instituted and that
[the prospective witness] probably would be called to
testify at that proceeding, we conclude that the jury
reasonably could have inferred that the defendant
intended to induce [the witness] to testify falsely or
to withhold testimony at that proceeding’’). Thus, any
charge of witness tampering, if based on efforts by
a defendant to influence a witness during a criminal
investigation prior to the commencement of any ‘‘offi-
cial proceeding,’’ must be supported by direct or cir-
cumstantial evidence reflecting the defendant’s intent
to influence the testimony of a ‘‘witness’’ in that future
proceeding.
    As we recognized in State v. Ortiz, 

supra,

 

312 Conn.
568

, our witness tampering statute is based on § 241.6
(1) of the Model Penal Code, which provides in relevant
part that ‘‘[a] person commits an offense if, believing
that an official proceeding or investigation is pending
or about to be instituted, he attempts to induce or other-
wise cause a witness or informant to . . . testify or
inform falsely . . . .’’ (Emphasis added.) Model Penal
Code and Commentaries, 

supra,

 § 241.6 (1) (a), p. 162.
When it enacted § 53a-151, our legislature purposefully
omitted the words ‘‘investigation,’’ ‘‘informant’’ and
‘‘inform’’ because it intended to exclude tampering with
a witness in a police investigation from the scope of
criminal culpability under that statute, unless the defen-
dant has the specific intent to interfere with an ‘‘official
proceeding.’’ See State v. Ortiz, 

supra, 568

; cf. Heirs
of Ellis v. Estate of Ellis, 

71 S.W.3d 705

, 713–14 (Tenn.
2002) (‘‘When the legislature enacts provisions of a uni-
form or model act without significant alteration, it may
be generally presumed to have adopted the expressed
intention of the drafters of that uniform or model act.
. . . However, when the legislature makes significant
departures from the text of that uniform act, we must
likewise presume that its departure was meant to
express an intention different from that manifested in
the uniform act itself.’’ (Citation omitted.)). Thus, § 53a-
151 plainly applies only when the defendant has the
specific ‘‘intent to influence a witness’ conduct at an
official proceeding.’’ (Emphasis added.) State v. Ortiz,

supra, 554

. Ortiz thus identifies a critical outer limit to
the reach of our witness tampering statute on the basis
of the operative text and legislative history.6
   The issue presented in this appeal is whether the
evidence was sufficient to prove beyond a reasonable
doubt that the defendant had intended to influence
Rajewski’s testimony in a future official proceeding
when she sent him the text messages following his
physical altercation with Moulson. To resolve this ques-
tion, and ‘‘to distinguish culpable conduct from inno-
cent conduct’’; (internal quotation marks omitted) 

id.,
569

; the statute directs us to focus on the defendant’s
state of mind rather than the actual status of the official
proceeding. The defendant’s belief regarding the pen-
dency or imminence of an official proceeding is not
measured by ‘‘temporal proximity’’ but, rather, by
‘‘probability of occurrence,’’ because ‘‘mere temporal
proximity does not sufficiently implement the goal of
punishing the obstruction of justice.’’ Id.; see also Model
Penal Code and Commentaries, 

supra,

 § 241.6, com-
ment 2, pp. 166–67 (‘‘The prosecution must establish
that the defendant held the specified belief but need
not prove that a proceeding or investigation was in fact
pending or about to be instituted. In assessing such
belief, the word[s] ‘about [to begin]’ as [they appear]
in this subsection should be construed more in the
sense of probability than of temporal relation. What is
important is not that the actor believe that an official
proceeding or investigation will begin within a certain
span of time but rather that [she] recognize that [her]
conduct threatens obstruction of justice [in connection
with such a proceeding].’’).
   Our case law makes clear that § 53a-151 (a) applies
to conduct intended to induce a witness to give a false
statement to the police if—but only if—‘‘a jury reason-
ably could infer’’ from that conduct that the defendant
had ‘‘the requisite intent to induce the [witness] to lie’’
or to withhold testimony in a future official proceeding.
State v. Ortiz, 

supra,

 

312 Conn. 564

–65. For example,
in Ortiz, we held that the evidence was sufficient to
support a reasonable inference that the defendant had
the requisite intent, even though an official proceeding
was not pending or about to be instituted in a temporal
sense at the time he threatened a witness to prevent
her from giving a statement to the police, because the
evidence was sufficient to support a finding that the
defendant intended ‘‘not only [that the witness] with-
hold information from the police but also withhold testi-
mony or provide false testimony at a future official
proceeding.’’ 

Id., 573

. Likewise, in State v. Cavallo, 

200
Conn. 664

, 

513 A.2d 646

 (1986), we concluded that the
evidence established the requisite intent because the
state ‘‘introduced ample evidence to convince a reason-
able finder of fact that, at the time of his attempts to
so induce the woman, the defendant had known that
an arbitration proceeding would soon be pending and
that, during the hearing, the woman would probably be
called to testify about her meetings with the defendant
. . . . From this evidence, the jury could reasonably
have inferred that the defendant intended to induce the
woman to testify falsely.’’ (Emphasis added.) 

Id., 673

–
74.
  The fundamental flaw in the majority’s reasoning is
that it conflates the defendant’s knowledge of the exis-
tence of a police investigation with the defendant’s
belief that a future official proceeding is probable, and,
in conflating these two different mental states, the
majority permits the state to substitute a less demand-
ing mens rea for the operative statutory requirement.7
The present case illustrates the point. The defendant
plainly knew that the police were investigating a minor
crime involving a brief fight between two men, and
her conduct solidly supports the conclusion that she
wanted to avoid an arrest of Rajewski, one among multi-
ple subjects of the investigation. But this state of mind
is not enough to establish a violation of our witness tam-
pering statute. To establish that the defendant engaged
in criminally culpable conduct intended to ‘‘interfere
with the courts and our system of justice’’; (internal
quotation marks omitted) State v. Ortiz, 

supra,

 

312
Conn. 562

; the state must produce sufficient evidence
for the jury reasonably to find that the defendant under-
took her actions with the intent to induce the witness
to testify falsely in a future official proceeding. That is,
the state must prove not only that the defendant acted
under the belief that an official proceeding was likely
to be instituted, but also that she intended to induce
the witness to lie in that proceeding. By allowing knowl-
edge of the investigation alone to satisfy the state’s bur-
den of proof regarding the defendant’s specific intent,
the majority has effectively added back into the statute
the very words that the legislature intentionally omitted
when it adopted a modified version of § 241.6 (1) of
the Model Penal Code.8
   The facts of Ortiz are instructive because they serve
to highlight what is missing here. The defendant, Akov
Ortiz, allegedly murdered Louis Labbadia after dis-
covering that Labbadia had given a statement to the
police implicating him in the commission of a burglary.

Id., 555

. ‘‘[T]he police considered [Ortiz] a ‘principal
suspect’ in Labbadia’s murder.’’ 

Id.

 The police ques-
tioned Ortiz’ former girlfriend, Kristen Quinn, ‘‘who, at
the time, did not provide the police with any useful
information. . . . Quinn informed [Ortiz] that she was
in contact with the police and did not want to be
involved with [Ortiz] because she thought he might have
been involved in Labbadia’s murder.’’ 

Id.

 About one
week later, after Labbadia’s body was discovered, the
police found a ‘‘[d]istraught’’ and ‘‘upset’’ Ortiz on the
Arrigoni Bridge in Middletown. (Internal quotation
marks omitted.) 

Id.

 ‘‘[Ortiz] informed the officers that
he was tired of being accused of things, of something
he didn’t do, and that anytime anything big ever hap-
pen[ed] in Middletown, he [was] blamed for it. Specifi-
cally, [Ortiz] stated that he had heard that there were
warrants for his arrest out through the Middletown
Police Department and that the Middletown police
[were] trying to kill [him].’’ (Internal quotation marks
omitted.) 

Id., 555

–56. After he was taken to the hospital,
Ortiz told the police that ‘‘he was tired of being accused
of something he didn’t do and that he was hearing that
the police were accusing him of killing . . . Labbadia.’’
(Internal quotation marks omitted.) 

Id., 556

.
   ‘‘In the following months, [Ortiz] knew that Quinn
was speaking with the police.’’ 

Id., 557

. He nonetheless
confessed to Quinn that he had killed Labbadia. Approx-
imately two months later, Ortiz went to Quinn’s home,
displayed a small handgun and asked her to come out-
side. Ortiz ‘‘told Quinn that he had the gun for insurance
if she told the cops about what he said about [Labbadia].
[Ortiz] said that if Quinn spoke to the police [her] house
was going to go up in smoke . . . . [Ortiz] stated that
he knew where Quinn’s grandparents lived. [Ortiz] told
Quinn that he was going to put [her down] on [her]
knees, put the gun to [her] head and scare [her]
straight.’’ (Internal quotation marks omitted.) 

Id.

‘‘Quinn subsequently informed the police of these
events.’’ 

Id.

 Ortiz was arrested, charged, and convicted
of, among other crimes, tampering with a witness.

Id., 558

.
   On appeal, Ortiz argued that the evidence was insuffi-
cient to support his tampering with a witness convic-
tion, but we rejected this claim because his intent to
influence testimony in an official proceeding could be
inferred under the circumstances. 

Id., 572

–74. The evi-
dence supporting this inference consisted of, among
other things, Ortiz’ belief that there ‘‘were warrants for
his arrest out through the Middletown Police Depart-
ment and that the Middletown police [were] trying to
kill him.’’ (Internal quotation marks omitted.) 

Id., 573

.
We determined that this evidence was sufficient to sup-
port a reasonable inference that, at the time he threat-
ened Quinn, Ortiz ‘‘believed that an official proceeding
probably would be instituted, regardless of whether
Quinn informed the police about the defendant’s con-
fession.’’ (Emphasis added.) 

Id.

 Our inquiry in Ortiz,
in other words, ultimately and necessarily turned on
the defendant’s intent with respect to the official pro-
ceeding itself. Our holding proves the point: ‘‘Because
the jury reasonably could have found that [Ortiz]
believed that an official proceeding was about to be
instituted and that Quinn probably would be called to
testify at that proceeding, we conclude that the jury
reasonably could have inferred that [Ortiz] intended to
induce Quinn to testify falsely or to withhold testimony
at that proceeding.’’ 

Id., 554

.
  In contrast to Ortiz, in the present case, there was
no evidence to support a reasonable inference that, at
the time she sent the text messages to Rajewski, the
defendant subjectively believed that an official proceed-
ing likely would be instituted or that Rajewski would
be a witness in such a proceeding. Nothing in the defen-
dant’s text messages directly or indirectly references
the presentation of formal charges or an actual criminal
case that may follow the decision to prosecute, or the
introduction of evidence at an eventual criminal trial.
Cf. State v. Sabato, 

321 Conn. 729

, 748, 

138 A.3d 895

(2016) (holding that defendant’s ‘‘Facebook messages
amply supported a finding that the defendant believed
that an official proceeding would probably occur’’
because, in those messages, ‘‘the defendant acknowl-
edged that the police were ‘getting warrants’ and ‘build-
ing a case’ against him,’’ and wrote that he would ‘‘eat
the charge’’); State v. Cavallo, 

supra,

 

200 Conn. 673

(holding that state had ‘‘introduced ample evidence to
convince a reasonable finder of fact that, at the time
of his attempts to [induce the witness to testify falsely],
the defendant had known that an arbitration proceeding
would soon be pending’’ because defendant himself
initiated arbitration proceeding less than one month
later); State v. Mark, 

170 Conn. App. 241

, 252, 

154 A.3d
564

 (evidence was sufficient to support reasonable
inference that defendant believed there would be ‘‘offi-
cial proceeding’’ because, among other reasons, defen-
dant mentioned that ‘‘he did not want to leave evidence
of the murder weapon at the scene’’), cert. denied, 

324
Conn. 927

, 

155 A.3d 1269

 (2017).
    I recognize that criminal defendants will not always
verbalize their subjective intent or state the ultimate
purpose of their efforts to obstruct justice. It will always
be appropriate, and sometimes necessary, to look at
the factual circumstances surrounding the defendant’s
conduct in each case to ascertain whether it is reason-
able to infer that the defendant’s attempt to induce a
witness to give a false statement to the police was
undertaken in contemplation of an official proceeding.
Our case law implicitly recognizes that various factors
inform this analysis, including, but not limited to, the
severity of the crime under investigation,9 the quantity
and quality of the evidence, and the status of the rele-
vant police investigation. See, e.g., State v. Jordan, 

314
Conn. 354

, 383, 

102 A.3d 1

 (2014) (‘‘when an individual
knows that there is significant evidence connecting him
to the crime, a jury reasonably could infer that the
individual believed that the investigation probably
would progress into an official proceeding’’); State v.
Foreshaw, 

214 Conn. 540

, 543, 550–51, 

572 A.2d 1006

(1990) (jury reasonably could have found that defendant
believed an official proceeding was about to be insti-
tuted when she discarded murder weapon because,
after she shot and killed victim in presence of numerous
eyewitnesses, she told police that she had discarded
weapon ‘‘so that she would not be caught with it’’);
State v. Mark, 

supra,

 

170 Conn. App. 253

 (‘‘the defendant
knew that the victim’s body was lying on the sidewalk
in public view; surely the defendant was aware that an
investigation and official proceeding probably would
ensue when someone found the victim’s body’’); State
v. Guerrera, 

167 Conn. App. 74

, 105, 

142 A.3d 447

 (2016)
(‘‘the jury could have inferred that the defendant was
aware that a criminal prosecution was probable in light
of the number of witnesses who had seen him with the
victim, the threats he made to those witnesses to try
to silence them, his knowledge that [his brother] told
people about killing the victim, and his firsthand knowl-
edge of the murder and the assault’’), aff’d, 

331 Conn.
628

, 

206 A.3d 160

 (2019); State v. Njoku, 

163 Conn. App.
134

, 139–42, 

133 A.3d 906

 (holding that evidence was
sufficient to sustain defendant’s conviction of tamper-
ing with witness because, after rape of victim, execution
of search warrant and collection of defendant’s DNA,
defendant asked intermediary to visit victim’s family
and to ‘‘try to convince them . . . [to] reach an agree-
ment outside the court with him’’ (internal quotation
marks omitted)), cert. denied, 

321 Conn. 912

, 

136 A.3d
644

 (2016); State v. Pommer, 

110 Conn. App. 608

, 619–
20, 

955 A.2d 637

 (evidence was sufficient to establish
that defendant tampered with witness in official pro-
ceeding because ‘‘[t]he defendant knew that the police
were aware of the identities of the participants in the
robbery’’ and that one participant ‘‘had turned herself
in to the police’’ and implicated defendant), cert. denied,

289 Conn. 951

, 

961 A.2d 418

 (2008).
   In light of the foregoing principles, I believe that that
the evidence was insufficient to support a reasonable
inference that, at the time the defendant texted Rajew-
ski, she had an intent to influence the testimony of a
witness in a future official proceeding, as opposed to
an intent to influence the statement of a suspect in the
ongoing police investigation. The crime at issue was
not serious—the state itself characterized the assault
as ‘‘minor’’10—and the likelihood of a full-blown prose-
cution in such cases is hardly a foregone conclusion.
The realistic probability of formal proceedings also was
diminished by the relatively equivocal nature of the
evidence. There were no eyewitnesses to the assault
aside from the participants, and they gave wildly differ-
ent accounts of what had transpired—Moulson testified
that he had been attacked by Rajewski and Babcock,
whereas both Rajewski and Babcock testified that they
had been attacked by Moulson.11 In addition, the police
had just begun their investigation, and, in the immediate
aftermath of the altercation, it was unclear whether a
crime had been committed, who had committed the
crime, and whether any charges were likely to be filed.
The minor nature of the crime, the conflicting accounts
and muddled motivations of the participants, combined
with their inebriated state at the time of the assault,12
leads me to believe that an ‘‘official proceeding,’’
although certainly possible, did not rise to the level of
probable. See State v. Reynolds, 

264 Conn. 1

, 97, 

836
A.2d 224

 (2003) (‘‘An inference is not legally supportable
. . . merely because the scenario that it contemplates
is remotely possible under the facts. To permit such a
standard would be to sanction fact-finding predicated
on mere conjecture or guesswork.’’), cert. denied, 

541
U.S. 908

, 

124 S. Ct. 1614

, 

158 L. Ed. 2d 254

 (2004); see
also State v. Jordan, 

supra,

 

314 Conn. 386

 (holding that
‘‘the jury would necessarily have to stack inferences
based on surmise to conclude that the defendant
believed that an official proceeding was probable’’ when
he discarded clothing implicating him in attempted rob-
bery while fleeing police). At most, the evidence reflects
that the defendant intended to tamper with a witness
in a police investigation, and, as previously explained,
our witness tampering statute does not extend to ‘‘situa-
tions in which the defendant believes that only an inves-
tigation, but not an official proceeding, is likely to
occur.’’13 State v. Ortiz, 

supra,

 

312 Conn. 570

.
   To support its contrary conclusion, the majority relies
on this court’s statement in Ortiz that, anytime a defen-
dant knows ‘‘that a witness with relevant information
already has spoken with the police, a jury reasonably
could infer that the [defendant] believed that the investi-
gation probably would progress into an official proceed-
ing.’’14 

Id., 571

. This statement must be construed in
light of the factual context in which the case arose—
the crime at issue in Ortiz was serious (murder), the
police investigation was extensive, the relevant infor-
mation was damning (Ortiz’ confession to the crime of
murder), and Ortiz verbalized his belief that an official
proceeding was likely to be instituted. 

Id., 555

–58, 572–
73. Ortiz does not stand for the blanket proposition
that it is reasonable to presume that every police investi-
gation will result in the initiation of an official proceed-
ing or that every effort to tamper with a witness at the
investigative stage will be sufficient to establish the
intent to influence that witness in such a proceeding.
Indeed, in Ortiz, this court emphasized that the defen-
dant’s state of mind, rather than the status of the police
investigation, is the key to ascertaining whether the
defendant’s conduct falls within the scope of our wit-
ness tampering statute. See 

id., 571

–72 (‘‘it does not
matter whether the police are at the investigation stage,
the official proceeding stage, or any other stage; as long
as the defendant acts with the intent to prevent a wit-
ness from testifying at an official proceeding, believing
that such a proceeding will probably occur, the defen-
dant has tampered with a witness within the meaning
of § 53a-151 (a)’’). The mens rea requirement ensures
that the defendant ‘‘recognize[s] that his conduct threat-
ens obstruction of justice’’; (internal quotation marks
omitted) 

id., 570

; and ‘‘distinguish[es] culpable conduct
from innocent conduct.’’ (Internal quotation marks omit-
ted.) 

Id., 564

.
   It is well established that ‘‘[i]ntent may be, and usually
is, inferred from [a] defendant’s verbal or physical con-
duct. . . . Intent may also be inferred from the sur-
rounding circumstances.’’ (Internal quotation marks
omitted.) 

Id., 565

. The factual circumstances sur-
rounding the defendant’s conduct therefore are criti-
cally important in ascertaining whether it is reasonable
to infer that she specifically intended to tamper with a
‘‘witness’’ in an ‘‘official proceeding’’ within the meaning
of § 53a-151 (a). Common sense and experience teach
us that the likelihood of a future official proceeding,
and the further likelihood of sworn testimony of the
relevant witness being adduced at that proceeding, nec-
essarily depends on various factors, including, but not
limited to, the factors previously enumerated: the sever-
ity of the crime, the identity and importance of the
witness, the quantity and quality of the evidence, and
the status of the police investigation. Each case must
be evaluated on its specific facts, and the focus must
remain on the defendant’s belief that an official pro-
ceeding involving the testimony of the witness likely
will result. See State v. Jordan, 

supra,

 

314 Conn. 383

(‘‘[t]his analysis ensures that the focus of the inquiry
is on the culpability of the actor, rather than on external
factors wholly unrelated to [the actor’s] purpose of
subverting the administration of justice’’ (internal quo-
tation marks omitted)). To hold otherwise is to rewrite
our witness tampering statute to include all police
investigations, and this we cannot do. See Doe v. Nor-
wich Roman Catholic Diocesan Corp., 

279 Conn. 207

,
216, 

901 A.2d 673

 (2006) (‘‘It is axiomatic that the court
itself cannot rewrite a statute to accomplish a particular
result. That is a function of the legislature.’’ (Internal
quotation marks omitted.)).
   My conclusion, once again, is informed by the fact
that our legislature purposefully omitted tampering
with an individual in a police investigation from the
purview of our witness tampering statute. That legisla-
tive choice is an important determination of public pol-
icy that cannot be stripped of all meaning. See Lewis
v. Gaming Policy Board, 

224 Conn. 693

, 709, 

620 A.2d
780

 (1993) (‘‘the primary responsibility for formulating
public policy must remain with the legislature,’’ not the
courts (internal quotation marks omitted)). Nor can we
ignore completely the rule of lenity. ‘‘[I]t is axiomatic
that we must refrain from imposing criminal liability
where the legislature has not expressly so intended.’’
(Internal quotation marks omitted.) State v. Peeler, 

271
Conn. 338

, 434, 

857 A.2d 808

 (2004), cert. denied, 

546
U.S. 845

, 

126 S. Ct. 94

, 

163 L. Ed. 2d 110

 (2005); see
also State v. Drupals, 

306 Conn. 149

, 160, 

49 A.3d 962

(2012) (‘‘[W]hen the statute being construed is a crimi-
nal statute, it must be construed strictly against the
state and in favor of the accused. . . . [C]riminal stat-
utes [thus] are not to be read more broadly than their
language plainly requires and ambiguities are ordinarily
to be resolved in favor of the defendant. . . . Rather,
penal statutes are to be construed strictly and not
extended by implication to create liability which no
language of the act purports to create.’’ (Citations omit-
ted; internal quotation marks omitted.)).
   The majority’s holding strays too far afield from the
statutory text and materially alters its meaning in the
process. The phenomenon is not uncommon—a statute
is extended to its outer limit by construction in one or
more judicial opinions, with each decision taking one
successive step away from the original text by jumping
off from the gloss adopted in the previous case, until
the gloss becomes the law itself, and the original text
merely a distant speck on the horizon. Referring to this
phenomenon, Judge Frank H. Easterbrook of the United
States Court of Appeals for the Seventh Circuit cau-
tioned: ‘‘As we are supposed to enforce the statutes
[enacted by legislature], and not the glosses on those
statutes, we must take care that the judicial process
does not contribute to the distortion of meaning.’’
(Emphasis in original.) Hickey v. Duffy, 

827 F.2d 234

,
242 (7th Cir. 1987). ‘‘Unless courts continually check
back with the sources of their authority, the process
of interpretation can become a rumor chain. Tiny varia-
tions at each retelling cascade, until the tale is unrecog-
nizable to its originator.’’ Id.; see also National Labor
Relations Board v. International Brotherhood of Elec-
trical Workers, Local 340, 

481 U.S. 573

, 597–98, 

107 S.
Ct. 2002

, 

95 L. Ed. 2d 557

 (1987) (Scalia, J., concurring
in the judgment) (‘‘[T]he [c]ourt, having already sanc-
tioned a point of departure that is genuinely not to be
found within the language of the statute, finds itself cut
off from that authoritative source of the law, and ends
up construing not the statute but its own construction.
Applied to an erroneous point of departure, the logical
reasoning that is ordinarily the mechanism of judicial
adherence to the rule of law perversely carries the
[c]ourt further and further from the meaning of the
statute. Some distance down that path, however, there
comes a point at which a later incremental step, again
rational in itself, leads to a result so far removed from
the statute that obedience to text must overcome fidel-
ity to logic.’’). In my view, the majority opinion has
distorted the meaning of our witness tampering statute
by applying a judicial gloss that extends criminal culpa-
bility to conduct that the legislature clearly and
expressly intended to exclude from the scope of § 53a-
151 (a), namely, a defendant’s attempt to influence
another person’s statement to the police for the purpose
of influencing a police investigation. I therefore dissent.
  1
     During its deliberations, the jury asked to review Baker’s police report
but was informed that the report was ‘‘never presented as evidence during
the course of this trial and therefore . . . you are not entitled to review [it].’’
   2
     It is unclear at certain points in Baker’s testimony whether he is reading
the text messages transcribed in his police report verbatim, summarizing
them, or interjecting his own opinions about their content and intended
purpose. To the extent that any ambiguity in the record exists, I resolve it
in the light most favorable to sustaining the jury’s verdict. See, e.g., State
v. Elmer G., 

supra,

 

333 Conn. 183

 (‘‘In reviewing a claim of insufficiency
of the evidence, we construe the evidence in the light most favorable to
sustaining the verdict. . . . We then determine whether the jury reasonably
could have concluded that the evidence established the defendant’s guilt
beyond a reasonable doubt.’’ (Citation omitted.)).
   3
     With respect to the purported falsity of the text messages, there was no
evidence, for example, whether Moulson was abusive to the defendant,
whether he stalked her, whether he had been in a bar fight earlier in the
evening or whether he was bloody when he arrived at the house on
Bunny Drive.
   4
     For reasons that I discuss more fully in this opinion, I fundamentally
disagree with the majority that, when ‘‘[v]iewed in its entirety, the state’s
closing argument relating to the witness tampering charge was not mis-
leading.’’ Footnote 10 of the majority opinion. As the majority acknowledges,
the state’s theory of the case was that the defendant knowingly tampered
with a witness in a police investigation and that such conduct, standing
alone, was sufficient to satisfy the state’s burden to establish the defendant’s
intent to interfere in an official proceeding. Our witness tampering statute,
however, deliberately excludes ‘‘situations in which the defendant believes
that only an investigation, but not an official proceeding, is likely to occur.’’
State v. Ortiz, 

supra,

 

312 Conn. 570

. Although evidence that the defendant
was aware of the existence of a police investigation may, depending on the
attendant factual circumstances, support an inference that the defendant
intended to interfere with an official proceeding, the inferred fact regarding
the defendant’s subjective belief is an essential element of the crime that
the state bears the burden of proving beyond a reasonable doubt. The
state’s theory of the case at trial, like the majority’s analysis in this appeal,
misconceives the state’s burden of proof by treating mere knowledge of an
active police investigation as a substitute for the statutory requirement that
the defendant intend to induce a witness to testify falsely in an official
proceeding, contrary to the plain language, intent, and purpose of our witness
tampering statute, and contrary to controlling precedent.
   5
     The word ‘‘testify’’ in § 53a-151 (a) is not defined in the definitional
section of part XI of our penal code; see generally General Statutes § 53a-
146; but, in this context—that is, when used in conjunction with the words
‘‘witness’’ and ‘‘official proceeding’’—the term manifestly refers only to
statements made under oath. See, e.g., Sickle v. Torres Advanced Enterprise
Solutions, LLC, 

884 F.3d 338

, 349–50 (D.C. Cir. 2018) (relying on dictionary
definition of testify: ‘‘ ‘[t]o make a declaration of truth or fact under oath’ ’’),
quoting The American Heritage Dictionary of the English Language (New
College Ed. 1976) p. 1330; State v. Salafia, 

29 Conn. Supp. 305

, 310, 

284
A.2d 576

 (1971) (Shea, J.) (‘‘The power to compel ‘testimony’ imports the
power to require an oath of a witness, because the word is usually defined
as meaning oral statements of a person under oath. [Webster’s Third New
International Dictionary (1961) p. 2362; Black’s Law Dictionary (4th Ed.
1968) p. 1646].’’); see also Black’s Law Dictionary (11th Ed. 2019) p. 1778
(defining ‘‘testimony’’ to mean, inter alia, ‘‘[e]vidence that a competent wit-
ness under oath or affirmation gives at trial or in an affidavit or deposition’’);
cf. State v. Taborsky, 

139 Conn. 475

, 487, 

95 A.2d 59

 (1953) (‘‘[t]estimony
given in court under oath is not in the same category as statements made
to police officers outside of court’’).
   6
     In my view, the foregoing statutory analysis finds additional, supplemen-
tary support in the later legislative proceedings examined at length in Justice
D’Auria’s dissenting opinion.
   7
     The specific intent requirement contained in § 53a-151 cannot be mini-
mized or brushed aside because it serves a vital constitutional function—
without it, the statute would be vulnerable to a first amendment challenge.
See State v. Cavallo, 

supra,

 

200 Conn. 672

 (‘‘We have held today that a
defendant is guilty of tampering with a witness only if he intends that his
conduct directly cause a particular witness to testify falsely or to refrain
from testifying at all. So interpreted, § 53a-151 warns the public that it applies
only to conduct intentionally undertaken to undermine the veracity of the
testimony given by a witness. Members of the public therefore have no basis
for concern that they might be subject to prosecution when their statements
unwittingly cause a witness to testify falsely. As long as intent is a necessary
element of the crime under § 53a-151, which penalizes only verbal acts
relating to a specific pending prosecution, the statute casts no chilling effect
on general exhortations concerning cooperation with judicial proceed-
ings.’’).
   8
     In my view, the majority mistakenly relies on the jury’s rejection of the
defendant’s in-court testimony to supply the missing evidence of intent. For
the reasons cogently explained in Justice D’Auria’s dissenting opinion, the
defendant’s credibility, or lack thereof, in the course of providing testimony
at trial is too remote and attenuated from her alleged commission of the
crime to support a reasonable inference that, at the time she texted Rajewski
in 2015, she intended to induce him to testify falsely at a future official
proceeding. The jury plainly was free to disbelieve any or all of the defen-
dant’s testimony. It was not free, however, to infer from that disbelief that,
because the defendant was the type of person who was willing to lie at
trial, she also probably had the specific intent, seventeen months earlier,
to tell Rajewski to lie to the police for the purpose of inducing him to testify
falsely in a different official proceeding at some undetermined point in the
future. Cf. Conn. Code Evid. § 4-5 (a) (‘‘[e]vidence of other crimes, wrongs
or acts of a person is inadmissible to prove the bad character, propensity,
or criminal tendencies of that person’’); State v. Smith, 

313 Conn. 325

, 334,

96 A.3d 1238

 (2014) (‘‘[e]vidence of a defendant’s uncharged misconduct is
inadmissible to prove that the defendant committed the charged crime or
to show the predisposition of the defendant to commit the charged crime’’
(internal quotation marks omitted)); State v. Meehan, 

260 Conn. 372

, 395–96,

796 A.2d 1191

 (2002) (drawing ‘‘distinction between using [uncharged mis-
conduct] evidence to prove an act and using [such] evidence to prove intent’’
and holding that evidence of defendant’s uncharged misconduct did not
make it ‘‘more or less likely that the defendant’’ had specific intent to commit
crime charged). By holding otherwise, the majority impermissibly dilutes
the state’s burden of proof on the essential element of intent in violation
of the constitution. See, e.g., State v. King, 

289 Conn. 496

, 519, 

958 A.2d
731

 (2008) (‘‘any defendant found guilty on the basis of insufficient evidence
has been deprived of a constitutional right’’ (internal quotation marks omit-
ted)).
   9
     The majority states that ‘‘[w]itness tampering charges may be brought
in connection with any official proceeding, regardless of the seriousness of
the underlying crime alleged in that proceeding . . . .’’ Footnote 14 of the
majority opinion. I am not suggesting otherwise. My point is that the severity
of the crime is a factor that should be taken into account as part of the
inquiry into the defendant’s mental state because, in the absence of any
direct proof of intent, the context of the offense helps to inform that inquiry.
Depending on the seriousness of the crime under investigation, the defendant
may have different goals in mind when attempting to induce an individual
to give false information to the police; in serious cases, the defendant may
be thinking of a process involving not only an arrest but a trial and the
prospect of a lengthy prison term; in a less serious situation involving
trespassing or minor assault, for example, the defendant may be thinking
of nothing beyond whether the subject of the investigation will be arrested.
Our case law implicitly recognizes that the severity of the crime is part of
the surrounding circumstances that inform the inquiry into the defendant’s
state of mind, i.e., whether the defendant subjectively believed that an official
proceeding was likely to be instituted. For instance, in State v. Sabato,

supra,

 

321 Conn. 748

, although the Appellate Court upheld a defendant’s
conviction of tampering with a witness in connection with the relatively
minor crime of theft of a cell phone, the defendant had articulated his
intent to interfere with a future official proceeding, and, therefore, it was
unnecessary to consider the circumstances surrounding the defendant’s
words and conduct in order to ascertain his state of mind. See 

id.

 (defendant’s
Facebook messages ‘‘acknowledged that the police were getting warrants
and building a case against him’’ and that defendant intended to ‘‘eat the
charge’’ (internal quotation marks omitted)). In contrast to Sabato, the
defendant in the present case did not articulate her subjective intent. Accord-
ingly, it is necessary to consider the circumstances surrounding the defen-
dant’s words and conduct, including the severity of the crime at issue in
the future official proceeding, in order to determine whether the evidence
is sufficient to support a finding that the defendant believed ‘‘that an official
proceeding . . . [was] about to be instituted’’; General Statutes § 53a-151
(a); when she texted Rajewski.
   Contrary to the majority, I do not believe that a fact intensive inquiry,
which includes as one factor relevant to the defendant’s state of mind the
severity of the crime at issue in the future official proceeding, will somehow
encourage criminal behavior or invite unnecessary subjectivity, as the major-
ity suggests. By identifying objective factors such as the severity of the
crime to guide the inquiry, we actually will reduce the degree of subjectivity
involved. It is axiomatic that ‘‘[i]ntent is generally proven by circumstantial
evidence because direct evidence of the accused’s state of mind is rarely
available. . . . Therefore, intent is often inferred from conduct . . . and
from the cumulative effect of the circumstantial evidence and the rational
inferences drawn therefrom.’’ (Citations omitted; internal quotation marks
omitted.) State v. Turner, 

252 Conn. 714

, 748, 

751 A.2d 372

 (2000). The
severity of the crime, like the other facts and circumstances surrounding a
defendant’s conduct, is circumstantial evidence of the defendant’s intent.
   10
      The police did not transport Moulson to the hospital for medical treat-
ment of his injury. Instead, they arrested him and detained him overnight.
   11
      The defendant’s attempt to influence Rajewski’s statement to the police
appears to be consistent with Rajewski’s testimony on this point.
   12
      Rajewski testified that he had had ‘‘quite a few’’ alcoholic beverages at
Pistol Pete’s bar and was drunk at the time the assault occurred. Babcock
testified that he also was drinking alcohol that evening and likely had any-
where from one to three beers.
   13
      Tampering with a witness is a serious crime with severe penalties—it
is a class C felony punishable by a term of imprisonment of ‘‘not less than
one year nor more than ten years . . . .’’ General Statutes § 53a-35a (7);
see also General Statutes § 53a-151 (b). Ironically, the minor crime of assault
in the third degree, the investigation into which the defendant interfered in
an effort to protect one or both of her boyfriends during the early morning
hours of July 25, 2015, is a misdemeanor offense punishable by a maximum
term of one year of imprisonment. See General Statutes § 53a-36 (1); see
also General Statutes § 53a-61 (b).
   14
      In Ortiz, this court contrasted the scenario in which there was no
evidence linking an individual to a crime and, therefore, no reason to believe
that the ‘‘the police would investigate the crime,’’ with the scenario in which
‘‘an individual knows that there is significant evidence connecting him to
the crime, or, even further, when the individual knows that a witness with
relevant information already has spoken with the police . . . .’’ State v.
Ortiz, 

supra,

 

312 Conn. 570

–71. Only in the latter scenario could ‘‘a jury
reasonably . . . infer that the individual believed that the investigation
probably would progress into an official proceeding.’’ 

Id., 571

.

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