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STATE OF CONNECTICUT v. AKOV ORTIZ

(SC 18946)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.

Argued January 13—officially released July 15, 2014

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

Michele C. Lukban, senior assistant state’s attorney,

with whom, on the brief, were Peter A. McShane, state’s

attorney, and Timothy J. Liston, former state’s attorney, for the appellee (state).
Opinion

ZARELLA, J. The defendant, Akov Ortiz, appeals, following our grant of certification, from the judgment

of the Appellate Court, which affirmed his conviction,

rendered after a jury trial, of tampering with a witness

in violation of General Statutes § 53a-151 (a), criminal

trespass in the first degree in violation of General Statutes § 53a-107 (a) (1), and carrying a pistol without a

permit in violation of General Statutes § 29-35 (a). On

appeal, the defendant claims that § 53a-151 (a) does

not proscribe attempts to prevent an individual from

speaking to the police because the statute requires the

intent to affect a witness’ conduct at an official proceeding. The defendant thus contends that the evidence in

the present case was insufficient to establish his guilt

with respect to his conviction of tampering with a witness. The state argues, however, that the broad definitions of ‘‘witness’’ and ‘‘official proceeding’’ encompass

attempts to prevent an individual from speaking to the

police when the defendant believes that an official proceeding is about to be instituted and the individual

probably will be called as a witness at that proceeding.

We agree with the defendant that § 53a-151 (a)

requires the intent to influence a witness’ conduct at

an official proceeding, but we also conclude that a jury

may infer this intent from the defendant’s attempt to

prevent an individual from giving a statement to the

police. See State v. Cavallo, 200 Conn. 664, 673–74, 513

A.2d 646 (1986). In the present case, the defendant went

to the home of his former girlfriend, Kristen Quinn,

with a gun and told her that, if she provided certain

information to the police, ‘‘[her] house was going to go

up in smoke . . . .’’ (Internal quotation marks omitted.) State v. Ortiz, 133 Conn. App. 118, 121, 33 A.3d

862 (2012). Because the jury reasonably could have

found that the defendant 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 the defendant intended to induce Quinn to testify

falsely or to withhold testimony at that proceeding.

Accordingly, we affirm the judgment of the Appellate

Court.

‘‘The jury reasonably could have found the following

facts from the evidence presented. On April 14, 1997,

a burglary occurred at a residence located on Plains

Road in [the town of] Haddam. During the course of

the burglary, eight guns and a hunting knife were stolen.

On April 17, 1997, the defendant told Louis Labbadia

that he had committed the burglary. Labbadia reported

this information to the police the same day.

‘‘In July, 1998, the defendant went to the home of

Labbadia’s fiance ́e, Robin Bonita, in [the city of] Middletown. Bonita told the defendant that Labbadia ‘had gone
to the police . . . .’ On or about July 18, 1998, Labbadia

was reported missing by his family. His remains were

discovered on March 21, 1999, in Middletown.’’ Id., 120.

Thereafter, the police considered the defendant a

‘‘principal suspect’’ in Labbadia’s murder. As a result,

the police contacted Quinn, who, at the time, did not

provide the police with any useful information. Nonetheless, a few days after Labbadia’s remains were found,

Quinn informed the defendant that she was in contact

with the police and did not want to be involved with

the defendant because she thought he might have been

involved in Labbadia’s murder.

About one week later, on April 1, 1999, Officer Stephen G. Augeri and Detective Rick Spencer of the Middletown Police Department received a complaint that

there was an intoxicated person on the Arrigoni Bridge

in Middletown. The officers discovered the defendant,

intoxicated, on the bridge upon arrival at the scene.

The defendant appeared ‘‘[d]istraught’’ and ‘‘upset,’’

and, after seeing the officers, told them ‘‘to stay back

or he would jump.’’ The defendant informed the officers

that he ‘‘was tired of being accused of things, of something he didn’t do, and that anytime anything big ever

happen[ed] in Middletown, he [was] blamed for it.’’

Specifically, the defendant 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].’’ He also stated

that he ‘‘had already attempted to kill himself earlier

in the day by slitting his wrist,’’ and Augeri noticed that

the defendant had a cut on his left wrist. Notably, while

on the bridge, the defendant asked to speak with DetectiveCharles Jacobucci of the Middletown Police Department, one of the detectives assigned to the Labbadia

murder investigation, in order to ‘‘to clear things up.’’

The defendant ultimately agreed to climb back over

the bridge railing and to go to the hospital with the

officers for an emergency psychological evaluation. At

the hospital, the defendant spoke to Officer Scott Aresco of the Middletown Police Department, one of the

investigators working on the Labbadia murder case,

about Labbadia. The defendant appeared very nervous.

The defendant told Aresco 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.’’ The defendant also stated that Labbadia ‘‘gave a statement against him [in a criminal investigation concerning the burglary in Haddam], which he

was supposed to [recant]. He was supposed to go to

court and talk on [the defendant’s] behalf.’’ The defendant informed Aresco that he ‘‘was never in the area

where . . . Labbadia’s remains were found.’’

On April 28, 1999, Jacobucci met with the defendant

at the police station. At the outset, Jacobucci informed

the defendant that ‘‘he was not in any trouble and [that]
he was free to leave at any time.’’ Jacobucci asked the

defendant for information about Labbadia, such as his

background and who might have seen him last. The

defendant informed Jacobucci that he had last seen

Labbadia in the first week of June, 1998. The defendant

also told Jacobucci that he ‘‘had to straighten something

out with [Labbadia] about going to the cops, about

shooting a cop at the Cenacle1

. . . .’’

In the following months, the defendant knew that

Quinn was speaking with the police. ‘‘On June 13, 1999,

the defendant went to [Quinn’s] home . . . and

knocked on her window. The defendant told Quinn that

he had killed Labbadia by stabbing him with a knife.

The defendant also told Quinn that he had dragged the

body into a wooded area and disposed of the knife by

throwing it in a river. The defendant indicated that,

were it not for his conversation with Bonita, Labbadia

would still be alive.’’2 State v. Ortiz, supra, 133 Conn.

App. 120. Quinn informed the defendant that he would

be in trouble if he were caught around her house

because she had been speaking with the police. After

the defendant had left, ‘‘Quinn wrote down what the

defendant had told her and showed these notes to her

mother the following day. Shortly thereafter, this information was conveyed to [the] police.

‘‘On August 7, 1999, the defendant again went to

Quinn’s home. The defendant showed Quinn ‘a small

handgun’ and asked her to come outside. Quinn then

exited the residence through her bedroom window. The

defendant told Quinn that he had the gun for ‘insurance’

if she told ‘the cops about what he said about [Labbadia].’ The defendant said that if Quinn spoke to the

police ‘[her] house was going to go up in smoke . . . .’

The defendant stated that he knew where Quinn’s

grandparents lived. The defendant told Quinn that he

was going to ‘put [her down] on [her] knees, put the

gun to [her] head and scare [her] straight.’ ’’ (Footnote

omitted.) Id., 120–21. The defendant and Quinn discussed the fact that the murder weapon had not been

found, although it is unclear which party informed the

other of this information. Quinn subsequently informed

the police of these events.

‘‘At 10:30 p.m. on August 10, 1999, the defendant

called Quinn to arrange a meeting at a school near

Quinn’s home. Quinn told her mother about the call,

and her mother notified the police. [At approximately]

12:30 a.m. on August 11, 1999, the police apprehended

the defendant at the school.’’ Id., 121.

The defendant was charged with threatening, tampering with a witness, criminal trespass in the first degree,

and carrying a pistol without a permit.3 A jury found

the defendant not guilty of threatening but guilty of the

other charges.4

The defendant appealed from the judgment of convic-
tion to the Appellate Court, claiming, inter alia, that

‘‘(1) attempting to prevent someone from making statements to the police cannot violate [§ 53a-151 (a), and]

(2) there was insufficient evidence that the defendant

possessed the specific intent required for conviction of

witness tampering . . . .’’ Id., 121–22. The Appellate

Court determined that the defendant’s first claim was

foreclosed by State v. Pommer, 110 Conn. App. 608,

955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d 418

(2008). State v. Ortiz, supra, 133 Conn. App. 122. The

AppellateCourt also concluded thatthere was sufficient

evidence to support the defendant’s conviction of witness tampering, the defendant having confessed to

Quinn and having appeared to be concerned that she

would report this confession to the police. Id., 124.

The defendant then appealed to this court, and we

granted his petition for certification limited to two questions: First, ‘‘[s]hould this court overrule State v. Pommer, [supra] 110 Conn. App. 608 . . . which holds that

the act of preventing someone from giving a statement

to the police falls within the witness tampering statute

. . . § 53a-151 (a)?’’ State v. Ortiz, 304 Conn. 914, 40

A.3d 785 (2012). Second, ‘‘[i]f so, did the Appellate Court

erroneously conclude that there was sufficient evidence

to sustain the defendant’s conviction of tampering with

a witness?’’ Id. After hearing the parties’ arguments and

considering the case more fully, however, we conclude

that the certified questions did not properly frame the

issues that must be resolved.5 Accordingly, we rephrase

the certified questions to conform to the issues actually

presented. See, e.g., State v. Ouellette, 295 Conn. 173,

183–84, 989 A.2d 1048 (2010). We recast the certified

questions as follows: First, ‘‘does the witness tampering

statute, § 53a-151 (a), proscribe the act of attempting

to prevent someone from giving a statement to the

police?’’ Second, ‘‘did the Appellate Court incorrectly

conclude that there was sufficient evidence to sustain

the defendant’s conviction of tampering with a witness?’’

With respect to the first certified question, the defendant claims that the plain language of § 53a-151 (a)

does not proscribe attempts to prevent a witness from

speaking to the police. Statements to the police fall

outside the scope of the statute, according to the defendant, because the terms ‘‘testimony’’ and ‘‘testify’’ in

§ 53a-151 (a)include only statements made in an official

proceeding. The defendant also relies on the omission

of the words ‘‘investigation,’’ ‘‘inform,’’ and ‘‘informant’’

from § 53a-151 (a), when these terms appear in the

Model Penal Code witness tampering provision from

which § 53a-151 (a) was adapted. See 2 A.L.I., Model

Penal Code and Commentaries (1980) § 241.6 (1), pp.

162–63. Finally, the defendant contends that the evidence in the present case was insufficient to support

the jury’s verdict with respect to the witness tampering

charge because there was no evidence that the defen-
dant (1) believed that an official proceeding was about

to be instituted, and (2) intended to induce Quinn not

to testify. The state responds that the defendant’s interpretation of § 53a-151 (a) is too limited and that the

words ‘‘witness,’’ ‘‘testify,’’ and ‘‘testimony’’ can include

attempts to prevent an individual from speaking to the

police in certain circumstances. Therefore, the state

argues that the evidence in the present case was sufficient to establish that the defendant tampered with

a witness.

We conclude that, consistent with our decision in

State v. Cavallo, supra, 200 Conn. 664, a jury may consider a defendant’s attempt to prevent an individual

from giving a statement to the police as evidence of his

intent to influence the testimony of that individual at

a future official proceeding. This conclusion is limited,

of course, by the statutory requirements that (1) the

defendant believe an official proceeding has been or is

about to be instituted, and (2) the individual probably

will be called to testify at that proceeding. In viewing

the evidence in the light most favorable to sustaining

the verdict, we conclude that the jury in the present

case reasonably could have found that the defendant

believed an official proceeding was about to be instituted and that the defendant intended to induce Quinn

not to testify or to withhold testimony at that proceeding. Accordingly, we affirm the judgment of the Appellate Court.

I

We begin with the first certified question, which

requires us to determine whether attempts to prevent

individuals from speaking with the police fall within

the scope of § 53a-151 (a). The defendant contends that

§ 53a-151 (a) does not include such attempts but,rather,

applies only when the defendant directly acts to influence a witness’ testimony in an official proceeding.

Although we agree that the defendant must intend to

affect the witness’ conduct in an official proceeding,

this court previously has determined that a jury may

infer this intent from a defendant’s attempt to prevent

an individual from speaking to the police in certain

circumstances. See id., 673–74. Accordingly, we conclude that the jury may consider such actions as evidence of the defendant’s intent to influence the future

testimony of a witness at an official proceeding.

The present case requires us to interpret § 53a-151

(a). ‘‘When construing a statute, [o]ur fundamental

objective is to ascertain and give effect to the apparent

intent of the legislature. . . . In other words, we seek

to determine, in a reasoned manner, the meaning of the

statutory language as applied to the facts of [the] case,

including the question of whether the language actually

does apply. . . . In seeking to determine that meaning,

General Statutes § 1-2z directs us first to consider the

text of the statute itself and its relationship to other
statutes. If, after examining such text and considering

such relationship, the meaning of such text is plain and

unambiguous and does not yield absurd or unworkable

results, extratextual evidence of the meaning of the

statute shall not be considered. . . . When a statute is

not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative

policy it was designed to implement, and to its relationship to existing legislation and common law principles

governing the same general subject matter . . . .’’

(Internal quotation marks omitted.) State v. Jenkins,

288 Conn. 610, 620, 954 A.2d 806 (2008).

Section 53a-151 (a) provides: ‘‘A person is guilty of

tampering with a witness if, believing that an official

proceeding is pending or about to be instituted, he

induces or attempts to induce a witness to testify falsely,

withhold testimony, elude legal process summoning

him to testify or absent himself from any official proceeding.’’6 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 defendantinduces or attempts to induce a witness to

engage in the proscribed conduct. These requirements

serve the purpose of part XI of the Connecticut Penal

Code, in which § 53a-151 (a) is found, as they ‘‘punish

those who interfere with the courts and our system of

justice.’’ State v. Servello, 80 Conn. App. 313, 323, 835

A.2d 102 (2003), cert. denied, 267 Conn. 914, 841 A.2d

220 (2004).

The defendant argues that § 53a-151 (a) requires the

intent to induce a witness to, inter alia, testify falsely

in an official proceeding. In support of this position,

the defendant cites our decision in Cavallo, in which

this court determined that § 53a-151 (a) ‘‘applies to any

conduct that is intended to prompt a witness to testify

falsely or to refrain from testifying in an official proceeding that the perpetrator believes to be pending or

imminent.’’ (Emphasis added.) State v. Cavallo, supra,

200 Conn. 668. Although we agree with the defendant

that § 53a-151 (a) requires this intent, an examination

of the facts and reasoning of Cavallo reveals that a

jury may consider a defendant’s attempt to induce a

potential witness to lie to police investigators as evidence of his intent to affect that witness’ conduct at a

future official proceeding. See id., 673–74.

In Cavallo, the defendant, John Cavallo, then a police

officer, often drank alcohol with a seventeen year old

woman in his police cruiser. Id., 665. This conduct led

to Cavallo’s discharge from the police force. Id. Cavallo

denied the allegations, however, and, ‘‘through his

union representative, notified the [police] department

[for which he worked] that he intended to bring the

matter to arbitration.’’ Id. Cavallo then told the woman

that, ‘‘if investigators questioned her about their rela-
tionship, she should tell them that she had never been

in [Cavallo’s] police cruiser and should deny any knowledge of [Cavallo’s] social use of the vehicle.’’ Id. Cavallo

repeated these instructions to the woman on multiple

occasions. Id. He also informed her that ‘‘he had just

been arrested fortampering with another young woman

who was also a potential witness.’’ Id., 665 n.1.

When police investigators eventually questioned the

woman, ‘‘she claimed that she had never been in

[Cavallo’s] police cruiser and that [Cavallo] was guilty

of no misconduct.’’ Id., 666. Cavallo then called the

woman to determine whether she had disclosed ‘‘any

incriminating information’’ to the police investigators.

Id. Approximately two weeks later, Cavallo initiated

arbitration proceedings. See id. Despite her earlier, false

statement, the woman subsequently informed the police

investigators about her visits with Cavallo in his police

cruiser and Cavallo’s attempts to persuade her to deny

these activities. Id.

Cavallo claimed on appeal that § 53a-151 was void

for vagueness and that there was insufficient evidence

to support his conviction. Id. The court first concluded

that § 53a-151 was constitutional because it ‘‘plainly

warns potential perpetrators that the statute applies to

any conduct that is intended to prompt a witness to

testify falsely or to refrain from testifying in an official

proceeding that the perpetrator believes to be pending

or imminent.’’ Id., 668. The court further explained that,

consistent with the provision of the Model Penal Code

on which § 53a-151 (a) is based, § 53a-151 (a) ‘‘focuses

on the mental state of the perpetrator to distinguish

culpable conduct from innocent conduct.’’ Id., 669.

With respect to the evidentiary sufficiency issue, the

court concluded that the jury reasonably could have

found Cavallo guilty of violating § 53a-151. Id., 674. Specifically, the court reasoned that the state had satisfied

its burden of proving each element of the offense by

adducing the following evidence at trial: ‘‘[Cavallo] had

repeatedly instructed [the] woman to give a false

account [to the police investigators] of her activities

with [Cavallo] in his police cruiser. [The state] also

introduced ample evidence to convince a reasonable

finder of fact that, at the time of his attempts to so

induce the woman, [Cavallo] 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 [Cavallo] in the cruiser.’’

Id., 673. The court thus concluded that, on the basis of

the evidence presented, ‘‘the jury could reasonably have

inferred that [Cavallo] intended to induce the woman

to testify falsely [at the arbitration hearing].’’ Id., 673–74.

The unspoken, but logical, step in this analysis is that

a jury reasonably could infer the requisite intent to

induce the woman to lie at the arbitration hearing from,

inter alia, Cavallo’s attempt to induce her to lie to police
investigators. ‘‘Intent may be, and usually is, inferred

from [a] defendant’s verbal or physical conduct. . . .

Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct

evidence of the accused’s state of mind is rarely available. . . . Furthermore, it is a permissible, albeit not

a necessary or mandatory, inference that a defendant

intended the natural consequences of his voluntary

conduct.’’ (Emphasis in original; internal quotation

marks omitted.) State v. Pommer, supra, 110 Conn. App.

618–19. Because an official proceeding was about to

be instituted and the woman probably would be a witness, it is reasonable to infer that Cavallo intended the

natural consequences of his act, that is, to induce the

woman to testify falsely at the arbitration hearing. Put

differently, it is hard to imagine a scenario in which

Cavallo, believing that an arbitration proceeding was

about to be instituted and that the woman probably

would be summoned as a witness, would intend to

induce the woman to lie to investigators but not also

intend for her to lie at the arbitration hearing.

The Appellate Court followed this reasoning in State

v. Pommer, supra, 110 Conn. App. 619–20, and State v.

Higgins, 74 Conn. App. 473, 483–85, 811 A.2d 765, cert.

denied, 262 Conn. 950, 817 A.2d 110 (2003). Although the

defendant and the state suggest that Pommer extended

§ 53a-151 (a) to encompass statements to the police,

Pommer is entirely consistent with Cavallo, as the

Appellate Court concluded in Pommer that the jury

could infer the defendant’s intent from his conduct

toward a potential witness prior to the institution of an

official proceeding.7 See State v. Pommer, supra, 620.

In Pommer, the defendant, Richard Pommer, and two

accomplices committed a robbery and then escaped in

a vehicle driven by Pommer’s girlfriend, Melissa Fragola. Id., 611. Fragola later told one of the accomplices,

Chaz Poole, that she was going to turn herself in to

the police, and she later did so and gave a statement

implicating Pommer. Id. Knowing that Fragola had

made this statement, Pommer called Poole and asked

him whether he was going to speak to the police as

well. Id. When Poole told Pommer that he planned to

do so, Pommer stated that ‘‘he loved [Poole] like a

brother, but if Poole went to the police, it would be

[Poole’s] ass.’’ (Internal quotation marks omitted.) Id.

Pommer was later charged with, inter alia, witness tampering pursuant to § 53a-151 (a), and the jury found

Pommer guilty of that charge. See id., 610.

Pommer appealed to the Appellate Court, claiming,

inter alia, that there was insufficient evidence for the

jury to find that he had tampered with a witness. See

id. The Appellate Court disagreed, concluding, with

respect to the requirement that the defendant intend for

the witness to testify falsely, that ‘‘[t]he jury reasonably

could have inferred that [Pommer’s] slang expression
was a threat, [which was] designed to prevent Poole,

a witness to the events, from giving information to the

police and, thus, to withhold evidence [that] would

implicate [Pommer] in an official proceeding that was

imminent, namely, an arrestfollowed by a criminal prosecution resulting in a trial in which testimony would

be taken under oath.’’ Id., 620. The Appellate Court also

concluded that the jury reasonably could have found

that Pommer believed that an official proceeding was

about to be instituted because, under § 53a-151 (a), ‘‘it

is enough . . . that an official proceeding is ‘about to

be instituted’ and is therefore imminent if a defendant,

knowing he has been implicated as a participant in a

crime, threatens a likely witness to that crime, to withhold evidence from the police, who . . . play a crucial

role in the commencement of criminal prosecutions.’’

Id., 618; see also State v. Higgins, supra, 74 Conn. App.

484–85 (concluding that evidence was sufficient to support conviction of witness tampering when jury reasonably could have concluded that defendant engaged in

improper sexual conduct with victim and subsequently

demanded that she tell police that ‘‘nothing ever happened’’ [internal quotation marks omitted]).8

The defendant also contends that, because § 53a-151

(a) is based on § 241.6 (1) of the Model Penal Code9

but § 53a-151 (a), unlike § 241.6 (1), does not contain

the words ‘‘investigation,’’ ‘‘inform,’’ or ‘‘informant,’’ the

legislature did not intend for § 53a-151 (a) to apply to

situations in which the defendant seeks to prevent an

individual from speaking with the police. We agree that

the legislature restricted the scope of the witness tampering statute by omitting these words, but the scope

of the restriction was minimal.

First, the omission of the word ‘‘investigation’’ does

not mean that statements made during an investigation

are excluded because the application of the statute does

not depend on the actual stage of police involvement.

Instead, § 53a-151 (a) applies whenever the defendant

believes that an official proceeding will probably occur,

even if the police are only at the investigation stage.

Section 53a-151 (a) requires that a defendant ‘‘believ[e]

that an official proceeding is pending or about to be

instituted . . . .’’ (Emphasis added.) Although the statute does not specify whether the term ‘‘belief’’ is judged

by an objective or subjective standard, this court previously has determined that the statute ‘‘focuses on the

mental state of the perpetrator to distinguish culpable

conduct from innocent conduct.’’ State v. Cavallo,

supra, 200 Conn. 669. Thus, § 53a-151 (a) applies to

‘‘any conduct that is intended to prompt a witness to

testify falsely or refrain from testifying in an official

proceeding that the perpetrator believes [is] pending or

imminent.’’ (Emphasis added.) Id., 668. This interpretation finds support in the official comments to § 241.6

(1) of the Model Penal Code, which note that § 241.6

(1) ‘‘focuses on the individual actor’s culpability and
not on external factors that may be irrelevant to the

actor’s aim of subverting the administration of justice’’

and ‘‘eliminate[s] the purposeless quibbling invited by

laws requiring that a proceeding or investigation actually be pending orin fact be contemplated by the authorities.’’ Model Penal Code and Commentaries, supra,

§ 241.6 (1), comment 2, p. 166. Put simply, under § 53a151 (a), as long as the defendant believes that an official

proceeding will probably occur, it does not matter

whether an official proceeding is actually pending or

is about to be instituted.

The phrase ‘‘about to be instituted’’ in § 53a-151 (a)

is somewhat ambiguous, as the statute does not reveal

whetherit connotes probability of occurrence ortemporal proximity. We conclude that ‘‘about to be instituted’’

signifies probability, as mere temporal proximity does

not sufficiently implement the goal of punishing the

obstruction of justice. This interpretation is consistent

with this court’s reading of an identical phrase in the

related statute proscribing the tampering of physical

evidence, General Statutes § 53a-155 (a).10 See State v.

Foreshaw, 214 Conn. 540, 551, 572 A.2d 1006 (1990)

(reasoning that § 53a-155 [a] ‘‘speaks to that which is

readily apt to come into existence or [to] be contemplated’’ [emphasis added]). It is also consistent with

the official comments to § 241.6 (1) of the Model Penal

Code, which provide that this phrase ‘‘should be construed more in the sense of probability than oftemporal

relation. What is important is not that the actor believe

that an official proceeding or investigation will begin

within a certain span oftime butratherthat he recognize

that his conduct threatens obstruction of justice.’’

(Emphasis added.) Model Penal Code and Commentaries, supra, § 241.6 (1), comment 2, p. 167.

Thus, the omission of the term ‘‘investigation’’ from

§ 53a-151 (a) does not mean that attempts to influence

witnesses that happen to occur during a police investigation are excluded from the purview of the statute.

Instead, the omission of ‘‘investigation’’ was intended

to exclude from the scope of the statute situations in

which the defendant believes that only an investigation,

but not an official proceeding, is likely to occur. For

instance, consider a scenario in which an individual

commits a crime that results in no physical evidence,

and in which the individual thereafter attempts to prevent the one witness to the crime from speaking to the

police. The individual certainly could believe that the

police would investigate the crime, but he would have

no reason to believe that an official proceeding would

probably occur because there would be no evidence or

witnesses on which the police could rely to identify

and arrestthe individual.In contrast, when 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, a jury reasonably could
infer that the individual believed that the investigation

probably would progress into an official proceeding.

We also note that the Model Penal Code does not

define the term ‘‘witness,’’ whereas our statutory definition of the term is broad. General Statutes § 53a-146

(6) defines ‘‘witness’’ as ‘‘any person summoned, or who

may be summoned, to give testimony in an official

proceeding.’’ (Emphasis added.) In contrast, the official

comments to § 241.6 (1) of the Model Penal Code suggest that, for purposes of its witness tampering provision, ‘‘an informant becomes a witness with the

issuance of legal summons.’’ Model Penal Code and

Commentaries, supra, § 241.6 (1), comment 2, pp. 170–

71. Thus, it does not necessarily follow that the omission

of the term ‘‘informant’’ from our own statute means

that all statements made by an individual to the police

are excluded from the purview of the statute because

our statutory definition of ‘‘witness’’ would overlap, at

times, with the Model Penal Code’s conception of an

‘‘informant.’’ Rather, the omission of ‘‘informant’’ from

our statutory scheme simply means that an individual

who does not qualify as a ‘‘witness’’ under § 53a-146

(6) does not fall within scope of the statute.

In sum, the jury may considerthe defendant’s attempt

to prevent a potential witness from speaking with the

police as evidence of his intent to induce the witness

to engage in conduct prohibited by § 53a-151 (a).

Accordingly, 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 witness from testifying at an

official proceeding, believing that such a proceeding

will probably occur, the defendant has tampered with

a witness within the meaning of § 53a-151 (a).

II

We next consider whetherthe evidence in the present

case was sufficient to permit the jury to reach a guilty

verdict with respect to the witness tampering charge.

The defendant argues that there is no evidence indicating that(1) he believed an official proceeding was about

to be instituted, and (2) he threatened Quinn with the

intent to induce her to withhold testimony at a criminal

trial. We disagree.

When reviewing a sufficiency of the evidence claim,

‘‘we do not attempt to weigh the credibility of the evidence offered at trial, nor do we purport to substitute

our judgment for that of the jury. Instead, our review

consists of a two-step process in which we construe

the evidence presented at trial in a light most favorable

to sustaining the verdict . . . and then determine

whether the jury could reasonably have found, [on the

basis of]the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the

evidence established guilt beyond a reasonable doubt.’’
(Citations omitted; internal quotation marks omitted.)

State v. Cavallo, supra, 200 Conn. 673.

First, there was substantial evidence on which the

jury could have relied to find thatthe defendant believed

an official proceeding would probably occur. The defendant confessed to at least two individuals that he had

killed someone. He knew that one of those individuals,

Quinn, was in contact with the police. In fact, the defendant himself had been in contact with the police on

two occasions. After Labbadia’s remains were found,

the defendant exhibited suicidal behavior and repeatedly requested to speak to an investigator who was

working on the Labbadia murder case. He stated to

Middletown police officers that he ‘‘had heard there

were warrants for his arrest outthrough the Middletown

Police Department’’ and that ‘‘the Middletown police

[were] trying to kill [him].’’ This behavior indicates that

the defendant believed that an official proceeding probably would be instituted, regardless of whether Quinn

informed the police about the defendant’s confession.11

In addition, the jury reasonably could have found that

the defendant intended to induce Quinn to testify falsely

or withhold testimony at an official proceeding. The

defendant arrived at Quinn’s home with a gun and ‘‘told

Quinn that he had the gun for ‘insurance’ if she told

‘the cops about what he said about [Labbadia].’ The

defendant said that if Quinn spoke to the police ‘[her]

house was going to go up in smoke . . . .’ ’’ State v.

Ortiz, supra, 133 Conn. App. 121. In fact, the defendant

had confessed to Quinn that he had murdered Labbadia

for almost identical reasons. A jury could infer that the

defendant intended the natural consequences of this

threat—that she not only withhold information from

the police but also withhold testimony or provide false

testimony at a future official proceeding. As in Cavallo,

it is difficult to imagine a situation in which the defendant, believing that an official proceeding would occur

at which Quinn would probably testify, would seek to

prevent Quinn from speaking to the police about his

confession but would not intend for her to lie at the

future criminal trial.

Thus, considering the evidence in the light most

favorable to sustaining the verdict, we conclude that the

jury reasonably could have found that the cumulative

effect of the evidence established the defendant’s guilt,

with respect to the charge of tampering with a witness,

beyond a reasonable doubt.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

1 The Cenacle was an old, abandoned building in Middletown.

2 The defendant’s statement to Quinn was not his only confession. At

some point in late 1998 or early 1999, the defendant also told Jeremiah

Marselli, the former boyfriend of Labbadia’s sister, that he had killed

someone.

3

‘‘These charges pertain to the events of August 7, 1999. The defendant

was charged separately for crimes pertaining to the murder of Labbadia
and the [burglary] that occurred on April 14, 1997. Although these charges

were eventually consolidated, only those charges relating to the defendant’s

interaction with Quinn are relevant to the present appeal.’’ State v. Ortiz,

supra, 133 Conn. App. 121 n.3.

4 The defendant was sentenced to six years imprisonment for his conviction on the charges of tampering with a witness, criminal trespass in the

first degree, and carrying a pistol without a permit.

5 The first certified question does not properly frame the issue presented

to this court because it does not correctly describe the Appellate Court’s

holding in Pommer. As we explain in this opinion, Pommer did not hold

that an attempt to prevent an individual from speaking with the police falls

within the ambit of § 53a-151 (a) but, rather, reasoned that such an attempt

could be considered evidence of the defendant’s intent to induce a potential

witness to engage in improper conduct at a future official proceeding. See

State v. Pommer, supra, 110 Conn. App. 619–20. The second certified question also does not properly frame the issue because the defendant’s claim

is not contingent on our answer to the first question. We therefore recast

the questions to conform to the arguments as presented in the defendant’s

brief and at oral argument. See, e.g., State v. Ouellette, 295 Conn. 173, 183–84,

989 A.2d 1048 (2010).

6 The term ‘‘witness’’ is broadly defined as ‘‘any person summoned, or

who may be summoned, to give testimony in an official proceeding . . . .’’

(Emphasis added.) General Statutes § 53a-146 (6). The statutory scheme

also includes a broad definition of‘‘official proceeding,’’thatis, ‘‘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, commissioner or notary or other person

taking evidence in connection with any proceeding.’’ (Emphasis added.)

General Statutes § 53a-146 (1).

7

In his concurrence in the Appellate Court’s decision in Ortiz, Judge

Bishop suggests that Pommer does not direct the outcome of the present

case because the court did not analyze the terms ‘‘witness’’ and ‘‘testimony’’

and did not address the omission of the term ‘‘investigation’’ from § 53a151, even though that term appears in the Model Penal Code provision on

which § 53a-151 (a) is based. See State v. Ortiz, supra, 133 Conn. App. 130,

135 (Bishop, J., concurring in part and concurring in the judgment). Although

Pommer did not specifically analyze these terms or address the differences

between our statute and § 241.6 (1) of the Model Penal Code, the reasoning

and outcome of Pommer are consistent with our interpretation of § 53a151 (a) and the official comments to § 241.6 (1) of the Model Penal Code.

Furthermore, Judge Bishop observed that the court in Pommer improperly

relied on this court’s decision in State v. Foreshaw, 214 Conn. 540, 572 A.2d

1006 (1990); see State v. Ortiz, supra, 132–33 (Bishop, J., concurring in part

and concurring in the judgment); which interpreted the tampering with

physical evidence statute, General Statutes § 53a-155. See State v. Foreshaw,

supra, 547. Specifically, Judge Bishop stated: ‘‘Although it fairly can be

argued that the conduct of a person in destroying or secreting evidence to

keep it from police discovery during an investigation invariably compels a

necessary inference that the actor intends, as well, for the evidence to be

unavailable in any proceeding likely to ensue from the police investigation,

a similar inference is not necessarily compelled from the conduct of an

actor who asks another not to talk with the police during an investigation.

In the latter case, whether asking a person not to talk with the police during

an investigation permits a reasonable inference that, by such conduct, the

actor has also attempted to influence that person’s testimony in an official

proceeding likely to ensue will vary depending on the facts and circumstances that pertain.’’ State v. Ortiz, supra, 132–33 (Bishop, J., concurring

in part and concurring in the judgment). We agree that the inferences made

from a defendant’s conduct will depend on the facts and circumstances of

each individual case under both §§ 53a-151 (a) and 53a-155. Thus, we do

not agree, as Judge Bishop suggests, that these inferences are invariably

compelled as a matter of law but, instead, conclude that the defendant’s

belief and intent are questions of fact for the jury to decide.

8 The defendant also relies on several decisions from other states in support of his position. Some of these decisions are not necessarily contrary

to our interpretation of § 53a-151 (a). See State v. Bailey, 346 Or. 551, 564,

213 P.3d 1240 (2009) (‘‘to constitute a violation of the [witness tampering]

statute, the offender’s knowing inducement or intended inducement must

reflect, either directly or by fair inference, that the offender at that time

specifically and reasonably believes that the victim will be called to testify
at an official proceeding’’ [emphasis added]); see also State v. LaPointe,

418 N.W.2d 49, 50, 52 (Iowa 1988) (evidence insufficient to establish witness

tampering when defendant offered to pay prospective witness money after

he struck and injured her and she had informed defendant that she had not

spoken to police and did not intend to press charges). Other decisions do

not provide us with much guidance as they interpret a witness tampering

statute that has different requirements from our own. See J.L.R. v. State,

756 So. 2d 1088, 1089 (Fla. App. 2000) (statute expressly encompasses

witness tampering in context of investigations); State v. Todd, 805 S.W.2d

204, 206 (Mo.App. 1991)(statute requires that official proceeding is pending);

State v. Kilgus, 125 N.H. 739, 742, 484 A.2d 1208 (1984) (statute expressly

encompasses witness tampering in context of investigations).

9 Section 53a-151 (a), as well as many other statutes in the Connecticut

Penal Code, is based on the comparable provision in the Model Penal Code.

See, e.g., State v. Salamon, 287 Conn. 509, 541, 949 A.2d 1092 (2008).

Section 241.6 (1) of the Model Penal Code provides: ‘‘Tampering. 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 otherwise

cause a witness or informant to:

‘‘(a) testify or inform falsely; or

‘‘(b) withhold any testimony, information, document or thing; or

‘‘(c) elude legal process summoning him to testify or supply evidence; or

‘‘(d) absent himself from any proceeding or investigation to which he has

been legally summoned.’’

10 General Statutes § 53a-155 (a) provides in relevant part: ‘‘A person is

guilty of tampering with or fabricating physical evidence if, believing that

an official proceeding is pending, or about to be instituted, he: (1) Alters,

destroys, conceals or removes any record, document or thing with purpose

to impair its verity or availability in such proceeding . . . .’’

11 The defendant claims that many of these events occurred months prior

to his alleged tampering of Quinn. We do not find it unreasonable, however,

forthe jury to have inferred thatthe defendant believed an official proceeding

was still probable four months after the victim’s remains were found, especially in light of the other evidence against him.