State v. Cowan

208 Conn.App. 710

265 A.3d 966

STATE of Connecticut

v.Jermaine Lee COWAN

AC 42450

Appellate Court of Connecticut.

Argued September 21, 2021

Officially released November 9, 2021

Jermaine Lee Cowan, self-represented, the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, and Seth Garbarsky, senior assistant state's attorney, for the appellee (state).

Alvord, Clark and Norcott, Js.

PER CURIAM.

The self-represented defendant, Jermaine Lee Cowan,¹ appeals from the judgment of conviction, rendered after a jury trial, of robbery in the second degree, larceny in the third degree, and conspiracy to commit larceny in the third degree. On appeal, the defendant claims that his due process rights were violated because his conviction was obtained on the basis of false testimony, which the state failed to correct. We conclude that this claim lacks merit and, accordingly, affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. On March 12, 2014, Zakea Crawford-Brooks (Crawford) drove the defendant and Jermaine Brooks² to a bank in Woodbridge. The defendant and Jermaine Brooks exited the vehicle and proceeded to rob the bank, and, after they exited the bank with more than $7700, Crawford served as the getaway driver.³ Crawford and Jermaine Brooks were arrested and later pleaded guilty in connection with their roles in the robbery. The defendant also was arrested and elected a jury trial.

A jury trial for the defendant commenced on February 8, 2016. On February 10, 2016, the state called Crawford as a witness to testify against the defendant. Crawford testified regarding the defendant's role in the robbery and stated that she had been convicted of conspiracy to commit robbery in connection with the March 12, 2014 incident and was serving time in prison for that conviction. Crawford further testified that she had not been promised any benefit in exchange for her testimony and that the state had not offered to reduce her sentence for testifying against the defendant. On February 16, 2016, following the trial, the defendant was found guilty of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2), larceny in the third degree in violation of General Statutes § 53a-124, and conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 and 53a-124. This appeal followed.

During the pendency of this appeal, on June 25, 2019, the defendant, "[p]ursuant to Practice Book §§ 60-2 (1) and (8), 60-5, 61-10, 66-5, and State v. Floyd , 253 Conn. 700, 756 A.2d 799 (2000)," filed a motion for augmentation and rectification of the record. In that motion, he stated that he had learned, through an off-the-record discussion with his trial counsel, that Crawford had received a sentence reduction in exchange for her testimony against him at his trial. He requested that the trial court review the clerk's files in the cases against Crawford and any relevant transcripts to determine if Crawford's sentence reductions were influenced by her testimony against him. The defendant further requested that, if the court determined that there existed prima facie evidence of such influence, it hold a hearing pursuant to Floyd "in order to make such findings as may be necessary for [his] counsel to determine whether there exists a nonfrivolous factual basis for an appellate claim of an unlawful withholding of impeachment material under Brady v. Maryland , 373 U.S. 83, [87,] 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) ...." On August 9, 2019, the defendant supplemented the motion by filing a notice with additional information about Crawford's original sentencing and sentence modifications. On August 13, 2019, the trial court summarily denied the motion.

On August 23, 2019, the defendant, "[p]ursuant to Practice Book ... §§ 60-2, 66-5, 66-6 and 66-7," filed a motion for review with this court requesting that it "direct the trial court to hold an evidentiary hearing to determine whether the state engaged in a Brady ... violation" or, alternatively, "to direct the trial court to articulate its findings of fact and conclusions of law underlying its denial of the defendant's motion for rectification so that the defendant [could] respond in an amended motion for review." On October 16, 2019, this court granted his alternative request and ordered the trial court to articulate the factual and legal basis for its denial of the defendant's motion.

On January 24, 2020, the trial court issued an articulation, which included the following information regarding Crawford's criminal record. On January 26, 2014, Crawford was arrested for the sale of narcotics. On August 17, 2015, she pleaded guilty to that charge. On the same date, pursuant to the Alford⁴ doctrine, she pleaded guilty to conspiracy to commit robbery in the first degree in connection with her role in the bank robbery. On October 26, 2015, she was sentenced for both crimes, and the sentences were to run concurrently. On April 5, 2016, roughly two months after the jury found the defendant guilty, Crawford's sentence with respect to her conviction of conspiracy to commit robbery was modified. On April 6, 2016, her sentence with respect to her conviction for the sale of narcotics was modified. The state did not oppose either sentence modification. On December 27, 2016, Crawford's conspiracy sentence was modified again, on the record. The state did not object to that modification.⁵

In its articulation, the trial court stated that it had reviewed the clerk's files and transcripts for the robbery and narcotics cases in which Crawford was the named defendant. The court further stated that it had reviewed the application and sentence modification form filed by Crawford, along with a handwritten letter attached to her modification request in which she articulated why she was seeking a sentence modification. To support her request, Crawford stated in the handwritten letter, among other things, that she had "[cooperated] with the state on the trial of [the defendant]." The court concluded: "This court's review of the previously mentioned clerk's files and transcripts does not show a promise by the state to ... Crawford ... to help her obtain a sentence reduction in exchange for her trial testimony. There is nothing in the review of the record that indicates ... Crawford ... received a modification of her sentence based on her testimony at the defendant's trial. A complete review of the record finds no evidence of an unlawful withholding of impeachment material. The defendant has not met his burden for the court to hold a ... hearing pursuant to State v. Floyd , [supra, 253 Conn. 700, 756 A.2d 799]." (Internal quotation marks omitted.) The defendant did not file with this court a subsequent motion for review requesting that this court order a Floyd hearing nor did he seek any other relief in connection with the court's ruling on his motion to augment and rectify the record.

The defendant claims that his due process rights were violated because his conviction was obtained on the basis of false testimony, which the state failed to correct. Specifically, he alleges that Crawford falsely testified that she was not promised a benefit for testifying against him. We conclude that this claim lacks merit.

We begin by setting forth the standard of review and relevant principles of law. Under Brady v. Maryland , supra, 373 U.S. at 87, 83 S.Ct. 1194, the state is required to disclose to a defendant any materially exculpatory evidence in its possession. During or after a defendant's trial, "[t]he state has a duty to correct the record if it knows that a witness has testified falsely. ... [D]ue process is ... offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears. ... If a government witness falsely denies having struck a bargain with the state, or substantially mischaracterizes the nature of the inducement, the state is obliged to correct the misconception. ... [A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." (Citations omitted; footnote omitted; internal quotation marks omitted.) Turner v. Commissioner of Correction , 181 Conn. App. 743, 754–55, 187 A.3d 1163 (2018).

"As set forth by the United States Supreme Court in Brady v. Maryland , supra, 373 U.S. at 87, 83 S.Ct. 1194, [t]o establish a Brady violation, the [defendant] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [defendant], and (3) it was material [either to guilt or to punishment]." (Internal quotation marks omitted.) State v. Bryan , 193 Conn. App. 285, 315, 219 A.3d 477, cert. denied, 334 Conn. 906, 220 A.3d 37 (2019).

"Pursuant to State v. Floyd , supra, 253 Conn. 700, 756 A.2d 799, a trial court may conduct a posttrial evidentiary hearing to explore claims of potential Brady violations ... when a defendant was precluded from perfecting the record due to new information obtained after judgment. ... In order to warrant such a hearing, a defendant must produce prima facie evidence, direct or circumstantial, of a Brady violation unascertainable at trial. ... The trial court's decision with respect to whether to hold a Floyd hearing is reviewable by motion for review pursuant to Practice Book § 66-7 ...." (Citations omitted; internal quotation marks omitted.) State v. Ouellette , 295 Conn. 173, 182 n.7, 989 A.2d 1048 (2010).

"The existence of an undisclosed agreement is an issue of fact to be determined by the trial court, and the defendant has the burden of proving the existence of undisclosed exculpatory evidence."

State v. Henderson , 83 Conn. App. 739, 744, 853 A.2d 115, cert....