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STATE v. MYERS—CONCURRENCE

LAVINE, J., concurring. I agree with the majority that

it is established law that an appellant must raise and

analyze in his principal brief any matters necessary for

the determination of his appeal and cannot do so for

the first time in his reply brief. I also agree that in this

case, the defendant, Ricardo O. Myers, failed to provide

in his principal brief any analysis of how the court’s

allegedly erroneous ruling was harmful. This rule makes

perfect sense in ninety-nine out of one hundred cases

because it is designed to prevent an appellee from being

ambushed by an appellant who holds back an argument

and then unfairly springs it on an adversary. See State

v. Thompson, 98 Conn. App. 245, 248, 907 A.2d 1257,

cert. denied, 280 Conn. 946, 912 A.2d 482 (2006) (fair

that appellant raise all issues in main brief, otherwise

appellee would not be alerted to them and have opportunity to respond to them in writing).

Rigid adherence to the rule in this case is unnecessary. Given the facts, the defendant’s failure to analyze

how he was harmed by the court’s evidentiary ruling

does not matter. The defendant was charged with one

count of murder and two counts of assault in the first

degree. The jury found him guilty, and he was sentenced

to forty-seven years of imprisonment.

Failure to address this issue now is highly inefficient.

The somewhat unusual posture of this case obviates

any concern that a plethora of similar cases will find

their way to this court. It is likely, however, that the

evidentiary issue raised in this appeal may return to

this court after it is litigated in a different action and

in a different forum. For the sake of judicial economy

and in the interests of the parties, I believe this straightforward evidentiary issue should be resolved now. I

would reach the merits of the issue presented and would

conclude that the trial court’s ruling excluding the videotape from evidence should be affirmed.

The defendant’s theory of defense at trial was: ‘‘I

didn’t do it. Someone else did.’’ To support his theory,

the defendant sought to present Latrell Rountree’s videotaped statement to the jury. If the jury believed

Rountree, it would have exculpated the defendant, and

resulted in a verdict of not guilty. The defendant’s claim

on appeal that he was harmed is obvious. I, therefore,

would review the defendant’s claim that he was harmed

by the court’s sustaining the state’s objection to the

videotaped statement. I believe that courts should,

where possible and fair to all parties, decide cases

rather than avoid or delay their resolution.

Rountree’s videotaped statement was the sole evidence offered by the defendant. Rountree stated that

Gary Pope, not the defendant, was the shooter. The
harmfulness of the court’s decision to exclude this thirdparty culpability is evident. The state’s brief on appeal

demonstrates that it was not surprised or ambushed by

the defendant’s failure to argue that he was harmed by

the court’s ruling in his principal brief. The state

devoted six and one-half pages of its brief to its argument that Rountree’s videotaped statement was not

admissible under the residual exception to the hearsay rule.

Appellate courts review the exclusion of evidence

offered pursuant to the residual exception to the hearsay rule of the Connecticut Code of Evidence under an

abuse of discretion standard. See State v. Shehadeh,

52 Conn. App. 46, 50, 725 A.2d 394 (1999) (abuse of

discretion and showing of substantial prejudice or injustice). Clearly, there was no abuse of discretion here.

The court ticked off a list of reasons why it did not

conclude that Rountree’s videotaped statement was

supported by ‘‘equivalent guarantees of trustworthiness

and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule,’’

as required by § 8-9 (2) of the Connecticut Code of

Evidence.1 Among them were the fact that Rountree’s

statement was provided without the benefit of an oath;

that Roundtree waited six days to provide any information to the police about the death of his friend, the

victim, Tirrell Drew; that Rountree only gave his statement when he was under police custody on unrelated

charges; that Rountree lied about having viewed a photograph of Pope prior to being shown photographs by

the police; that Rountree was under the influence of

an intoxicant on the night of the crime; that Rountree

gave inconsistent stories about a fight that had allegedly

occurred at the time of the incident; that there was no

clear evidence of the distance between Rountree and

the shooter at the time of the shooting; and that

Rountree was not subject to cross-examination at

any time.

Because I believe that the defendant’s claim of harm

with respect to the court’s evidentiary ruling is unambiguously self-evident, because I believe this court should

reach the substance of the issue presented in this appeal

and because I would affirm the trial court’s evidentiary

ruling, I respectfully concur. To the extent that this

conclusion conflicts with the precedents cited by the

majority, I believe the circumstances of this case, and

the need to conserve the resources of the court and

counsel and to resolve this case without further delay,

justify this modest departure.

For the foregoing reasons, I respectfully concur.

1 Section 8-9 of the Connecticut Code of Evidence provides in relevant part:

‘‘A statement that is not admissible under any of the foregoing exceptions

is admissible if the court determines that . . . (2) the statement is supported

by equivalent guarantees of trustworthiness and reliability that are essential

to other evidence admitted under traditional exceptions to the hearsay rule.’’