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*********************************************** 
STATE OF CONNECTICUT v. JOSEPH A.

STEPHENSON

(SC 20272)

Robinson, C. J., and McDonald, D’Auria,

Mullins, Kahn, Ecker and Keller, Js.

Syllabus

Convicted of burglary in the third degree, attempt to commit tampering

with physical evidence, and attempt to commit arson in the second

degree in connection with a break-in at a courthouse in Norwalk, the

defendant appealed to the Appellate Court. The defendant had entered

the office of two assistant state’s attorneys located in the courthouse

by breaking a window. One of those attorneys was scheduled to begin

jury selection for a criminal trial against the defendant two days after

the break-in occurred. Immediately after the break-in, various case files

were discovered in a state of disarray in a common area located outside

of the attorneys’ office, and the police found a bag containing bottles

of kerosene nearby. On appeal to the Appellate Court, the defendant

claimed, inter alia, that the evidence was insufficient to allow a reasonable inference that the defendant believed that the case files for his

criminal case that were found in disarray contained ‘‘evidence,’’ as that

term was used in the broader definition of ‘‘physical evidence,’’ as

defined by statute (§ 53a-146 (8)). The Appellate Court reversed the

trial court’s judgment, albeit on the alternative ground that there was

insufficient evidence for the jury to have reasonably concluded that the

defendant intended to tamper with any case files or their contents. The

Appellate Court expressly recognized that this issue was distinct from

the defendant’s sufficiency argument relating to the scope of items

subject to the prohibition contained in the statute (§ 53a-155) under

which the defendant was charged in connection with his alleged attempt

to tamper with physical evidence. On the granting of certification, the

state appealed to this court. Held that the Appellate Court improperly

addressed, sua sponte, an issue of evidentiary sufficiency that was distinct from the defendant’s claim, without calling for supplemental briefing as required by Blumberg Associates Worldwide, Inc. v. Brown &

Brown of Connecticut, Inc. (311 Conn. 123): the defendant never raised

the particular claim of evidentiary sufficiency the Appellate Court

addressed, and, because the sufficiency of the evidence on the question

of identity was not challenged, the state had no occasion to brief the

issue of whether it had established a connection between the defendant’s

conduct and the case files found in disarray; moreover, because the

sufficiency claim raised by the defendant challenged only whether the

jury could have reasonably inferred that his case files contained physical

evidence covered by § 53a-155, the state was never called on to apply

a sufficiency standard to the distinct issue that the Appellate Court

resolved, that is, whether the defendant had intended to alter, remove,

conceal or destroy the case files; accordingly, because the Appellate

Court failed to afford the parties an opportunity to brief or argue the

issue that ultimately proved to be dispositive in that court’s analysis,

its reversal of the trial court’s judgment of conviction was improper.

Argued September 9—officially released December 18, 2020*

Procedural History

Substitute information charging the defendant with

the crimes of burglary in the third degree, attempt to

commit tampering with physical evidence, and attempt

to commit arson in the second degree, brought to the

Superior Court in the judicial district of Stamford-Norwalk, geographical area number twenty, and tried to

the jury before White, J.; verdict and judgment of guilty,

from which the defendant appealed to the Appellate
Court, Sheldon, Bright and Mihalakos, Js., which

reversed the trial court’s judgment and remanded the

case to that court with direction to render a judgment

of acquittal; thereafter, the state, on the granting of

certification, appealed to this court. Reversed; further

proceedings.

Sarah Hanna, senior assistant state’s attorney, with

whom, on the brief, were Richard Colangelo, chief

state’s attorney, Paul J. Ferencek, state’s attorney, and

Michelle Manning, senior assistant state’s attorney, for

the appellant (state).

Vishal K. Garg, for the appellee (defendant).
Opinion

KAHN, J. The state, on the granting of certification,

appeals from the judgment of the Appellate Court,

which reversed the judgment of the trial court convicting the defendant, Joseph A. Stephenson, of the

crimes of burglary in the third degree, attempt to commit tampering with physical evidence, and attempt to

commit arson in the second degree in connection with

a break-in at the Superior Court for the judicial district

of Stamford-Norwalk, geographical area number

twenty, which is located in Norwalk. See State v. Stephenson, 187 Conn. App. 20, 39, 201 A.3d 427 (2019).

The state claims, inter alia, that the Appellate Court

improperly addressed an issue of evidentiary sufficiency sua sponte without calling for supplemental

briefing as required by Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311

Conn. 123, 84 A.3d 840 (2014) (Blumberg). We agree

and, accordingly, reverse the judgment of the Appellate Court.

The following facts and procedural history are relevant to our resolution of the present appeal. A silent

alarm at the courthouse was triggered at around 11 p.m.

on Sunday, March 3, 2013, when the defendant entered

the state’s attorney’s office by breaking a window on

the building’s eastern side.1 Although the police were

able to respond in about ninety seconds, the defendant

successfully evaded capture by running out of a door on

the building’s southern side. Footage from surveillance

cameras introduced by the state at trial show that the

defendant was inside of the building for slightly more

than three minutes. In the investigation that followed,

the police determined that the broken window belonged

to an office shared by two assistant state’s attorneys.

One of those attorneys was scheduled to commence

jury selection for a criminal trial against the defendant

on certain felony charges only two days after the breakin occurred. No other cases were scheduled to begin

jury selection that week. Immediately after the breakin, various case files were discovered in an apparent

state of disarray at the northern end of a central, common area located outside of that room. Specifically,

several files were found sitting askew on top of a desk

with two open drawers; still other files were scattered

on the floor below in an area adjacent to a horizontal

filing cabinet containing similar files. Photographs

admitted as full exhibits clearly show labels on these

files reading ‘‘TUL’’ and ‘‘SUM.’’ Finally, in a short hallway at the opposite end of that same common area,

the police found a black bag containing six bottles of

industrial strength kerosene with their UPC labels cut

off. The bag and its contents were swabbed, and a report

subsequently generated by the Connecticut Forensic

Science Laboratory included the defendant’s genetic

profile as a contributor to a mixture of DNA discovered
as a result.

Various other components of the state’s case against

the defendant warrant only a brief summary. The day

after the break-in, the defendant called the public

defender’s office at the Norwalk courthouse to ask

whether the courthouse was open and whether he was

required to come in that day. The state also submitted

evidence showing that the defendant drove a 2002 Land

Rover Freelander with an aftermarket push bumper, a

roof rack, and a broken tail light, and that surveillance

videos from the area showed a similar vehicle driving

by the courthouse repeatedly in the hours leading up

to the break-in. Finally, the state submitted recordings

of various telephone calls the defendant made after he

had been taken into custody as a result of his conviction

on the criminal charges previously pending against him

in Norwalk. During one such telephone call, the defendant asked his brother, Christopher Stephenson, to get

rid of ‘‘bottles of things’’ for a heater, speculated about

how the police located the vehicle, and attempted to

arrange an alibi.

The defendant was tried before a jury on charges

of burglary in the third degree in violation of General

Statutes § 53a-103, attempt to commit tampering with

physical evidence in violation of General Statutes § 53a49 (a) (2) and General Statutes (Rev. to 2013) § 53a155 (a) (1), and attempt to commit arson in the second

degree in violation of General Statutes §§ 53a-49 (a) (2)

and 53a-112 (a) (1) (B). The jury returned a verdict

finding the defendant guilty of each of these offenses,

and the trial court subsequently rendered a judgment

in accordance with that verdict.

The defendant appealed from that judgment to the

Appellate Court, raising several distinct claims of error.2

In the final three pages of his principal brief to that

court, the defendant raised the following single, relatively narrow claim relating to the sufficiency of the

state’s proof with respect to the charge that he

attempted to tamper with physical evidence: ‘‘The state

failed to show that any materials in the state’s attorney’s

case file for the defendant’s criminal case constituted

‘evidence’ as defined by [General Statutes] § 53a-146

(8); the evidence was insufficient to allow a reasonable

inference that the defendant believed the file contained

evidence.’’ (Emphasis added.) This claim challenged the

judgment of conviction by arguing that, even if the

defendant did rummage through the case files that evening, certain evidentiary deficiencies left the jury to

‘‘speculate’’ that he had acted with an intent to tamper

with a particular type of document—namely, that within

the ambit of § 53a-155 (a) (1).3 Put differently, the defendant contended that the state had failed to submit adequate proof to allow reasonable inferences about the

precise nature of the items contained within his case

files. The state responded to this argument by briefing
issues of statutory construction relating to the meaning

of §§ 53a-146 (8) and 53a-155.

The Appellate Court ultimately reversed the trial

court’s judgment on a different ground, based on its

conclusion that there was insufficient evidence for the

jury to have reasonably concluded that the defendant

intended to tamper with any case files or their contents

at all. See State v. Stephenson, supra, 187 Conn. App. 39.

Specifically, the Appellate Court framed the dispositive

question before it as whether the evidence ‘‘was insufficient to prove that [the defendant] . . . acted with the

intent to tamper with physical evidence within the

courthouse because the state failed to establish any

connection between his proven conduct within the

courthouse and any of the files or materials with which

he is claimed to have had the intent to tamper.’’

(Emphasis added.) Id., 34. The Appellate Court

answered that question in the affirmative, concluding

that the ‘‘single fact’’ that there was ‘‘a disorganized

pile of files on the floor’’ was ‘‘insufficient for the jury

to infer that the defendant ever touched any case files

in the state’s attorney’s office . . . let alone pulled case

files out of any file cabinet or off any desk, shelf or

table, or that he went through such files for any purpose,

much less that he took any steps to alter, remove, conceal or destroy the files or their contents as or after he

went through them.’’4

Id., 35–36. In reaching its decision,

the Appellate Court expressly recognized that the issue

was distinct from the defendant’s sufficiency argument

relating to the scope of items subject to the prohibition

contained in § 53a-155. Id., 30 n.4.

In Blumberg Associates Worldwide, Inc. v. Brown &

Brown of Connecticut, Inc., supra, 311 Conn. 128, this

court concluded, ‘‘with respect to the propriety of a

reviewing court raising and deciding an issue that the

parties themselves have not raised, that the reviewing

court (1) must do so when that issue implicates the

court’s subject matter jurisdiction, and (2) has the discretion to do so if (a) exceptional circumstances exist

that would justify review of such an issue if raised by

a party, (b) the parties are given an opportunity to be

heard on the issue, and (c) there is no unfair prejudice

to the party against whom the issue is to be decided.’’

The state claims that the Appellate Court’s decision in

the present case violated this mandate by raising a

different claim of evidentiary sufficiency sua sponte,

without calling for supplemental briefing from the parties. For the reasons that follow, we agree.

We note at the outset that, although this court applies

an abuse of discretion standard to the question of

whether the Appellate Court properly addressed an

issue that was never raised by the parties; see Diaz v.

Commissioner of Correction, 335 Conn. 53, 58, 225

A.3d 953 (2020); we engage in plenary review as to the

predicate question of whether a particular claim of error
was, in fact, raised during the course of a prior appeal.

See, e.g., State v. Connor, 321 Conn. 350, 363, 138 A.3d

265 (2016).

Our review in the present case indicates that the

defendant never raised the particular claim of evidentiary sufficiency addressed by the Appellate Court.

First, the defendant’s own recitation of the facts in

his principal brief to the Appellate Court affirmatively

stated the following: ‘‘[T]he jury reasonably could have

found the following facts concerning a break-in at the

Norwalk courthouse. . . . While inside, the perpetrator removed files from a file cabinet, which were found

scattered on the floor near the state’s attorney’s secretary’s desk.’’ Because the sufficiency of the evidence

on the question of identity was not challenged; see State

v. Stephenson, supra, 187 Conn. App. 30, 34; the state

simply had no occasion to brief the question of whether

it had established a ‘‘connection’’ between the defendant’s ‘‘proven conduct’’ and the case files found scattered on the floor. Second, because the sufficiency

claim raised by the defendant challenged only whether

the jury could have reasonably inferred that his case

files contained physical evidence protected by § 53a155, the state was never called upon to apply a sufficiency standard to the distinct question, raised by the

Appellate Court, of whether the defendant had, in the

first instance, intended to ‘‘alter, remove, conceal or

destroy’’ the case files at all.

It is, of course, beyond question that the Appellate

Court possesses discretion to raise issues pertaining

to the sufficiency of evidence sua sponte. See, e.g.,

Blumberg Associates Worldwide, Inc. v. Brown &

Brown of Connecticut, Inc., supra, 311 Conn. 128. It is

equally well established, however, that it may do so

only after providing the parties with a meaningful

opportunity to address the question through supplemental briefing. See, e.g., State v. Dort, 315 Conn. 151,

161, 106 A.3d 277 (2014) (‘‘[i]f the Appellate Court

decides to address an issue not previously raised or

briefed, it may do so only after requesting supplemental

briefs from the parties or allowing argument regarding

that issue’’ (internal quotation marks omitted)); Haynes

v. Middletown, 306 Conn. 471, 474, 50 A.3d 880 (2012)

(same). Because the Appellate Court failed to afford

the parties an opportunity to brief or argue the issue

that ultimately proved to be dispositive in its analysis,

its reversal of the trial court’s judgment of conviction

was improper.

We find the defendant’s arguments to the contrary

in the present appeal to be unpersuasive. First, the

defendant posits that the Appellate Court was not

required to call for supplemental briefing because it

merely adopted a separate line of legal reasoning. See

Finkle v. Carroll, 315 Conn. 821, 837 n.14, 110 A.3d 387

(2015) (concluding that supplemental briefing was not
required under Blumberg for ‘‘an amplification and logical extension of the defendants’ argument’’). The evidentiary deficiency analyzed in the Appellate Court’s

decision was conceptually distinct from the one pursued by the defendant in his brief to that court. Specifically, the Appellate Court concluded that the state’s

proof was insufficient for the jury to have reasonably

concluded that the defendant’s conduct was connected

to the files scattered at the northern end of the office

or that, even if he did physically disturb those files, he

had ultimately intended to tamper with them within the

meaning of § 53a-155. See State v. Stephenson, supra,

187 Conn. App. 39. The defendant, however, only

claimed that the evidence admitted at trial was insufficient for the jury to make reasonable inferences about

the contents of his case files. Although both of these

issues relate, at the broadest level, to the question of

whether the defendant intended to tamper with physical

evidence, the claims address distinct evidentiary deficiencies. Cf. State v. Connor, supra, 321 Conn. 368.

Second, the defendant argues that the Appellate

Court was not required to call for supplemental briefing

because the dispositive claim was preserved at trial.

Our case law reveals that this argument must fail. See

Sequenzia v. Guerrieri Masonry, Inc., 298 Conn. 816,

821–22, 9 A.3d 322 (2010) (‘‘[A]lthough the defendant

raised the instructional impropriety claim in the trial

court . . . it concedes that it did not raise this claim in

its brief to the Appellate Court. The defendant contends,

however, that the Appellate Court has the discretion

to decide a case on any basis, regardless of whether

that claim was raised by the parties. We conclude that

the defendant misconstrues the limits of the Appellate

Court’s authority. If the Appellate Court decides to

address an issue not previously raised or briefed, it may

do so only after requesting supplemental briefs from

the parties or allowing argument regarding that issue.

. . . Here, it is undisputed that the Appellate Court did

not order supplemental briefing or argument on the

instructional impropriety claim, which deprived the

plaintiff of the opportunity to be heard on this issue

before that court.’’ (Citations omitted; emphasis omitted; internal quotation marks omitted.)), overruled in

part on other grounds by Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311

Conn. 123, 84 A.3d 840 (2014); State v. Dalzell, 282

Conn. 709, 715–17, 924 A.2d 809 (2007) (concluding that

Appellate Court improperly addressed preserved claim

not raised on appeal without ordering supplemental

briefing), overruled in part on other grounds by Blumberg Associates Worldwide, Inc. v. Brown & Brown of

Connecticut, Inc., 311 Conn. 123, 84 A.3d 840 (2014);5

cf. In re Joseph W., 301 Conn. 245, 255, 21 A.3d 723

(2011) (ordering supplemental briefing where preserved claim was not raised on appeal).

We emphasize that ‘‘[o]ur system [is] an adversarial
one in which the burden ordinarily is on the parties to

frame the issues, and the presumption is that issues

not raised by the parties are deemed waived.’’ Blumberg

Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 164. When the Appellate

Court exercises its discretion to deviate from that general principle, it must afford the parties an opportunity

to be heard. See Bloom v. Zoning Board of Appeals, 233

Conn. 198, 205, 658 A.2d 559 (1995) (‘‘[a] fundamental

premise of due process is that a court cannot adjudicate

any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved’’).

Its failure to do so in the present case necessitates

remand. See, e.g., Diaz v. Commissioner of Correction,

supra, 335 Conn. 60–61 (concluding that Appellate

Court improperly raised and decided issue without providing parties with opportunity to be heard and

remanding case for further proceedings notwithstanding fact that issue had been fully briefed on appeal);

Haynes v. Middletown, supra, 306 Conn. 474–75 (same);

see also State v. Connor, supra, 321 Conn. 368, 374–75

(concluding that Appellate Court improperly raised and

decided issue without providing parties with opportunity to be heard and remanding case for consideration

of claims actually raised because defendant failed to

advance any argument in response to state’s colorable

claim of prejudice).6 We, therefore, remand the present

case to the Appellate Court in order to address the

claims raised by the defendant in his initial appeal. If,

during that proceeding, the Appellate Court chooses to

exercise its discretion to reach the sufficiency issue

raised in its previous decision, it must do so in a manner

consistent with this court’s decision in Blumberg.

The judgment of the Appellate Court is reversed and

the case is remanded for further proceedings consistent

with this opinion.

In this opinion the other justices concurred.

* December 18, 2020, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 Although the defendant advanced an alibi defense at trial, he did not

challenge the sufficiency of the state’s evidence with respect to identity

either before the Appellate Court; see State v. Stephenson, supra, 187 Conn.

App. 30, 34; or this court.

2 On appeal to the Appellate Court, the bulk of the defendant’s principal

brief pertained to an unrelated evidentiary claim. The defendant also raised

two separate sufficiency claims relating to the charge of attempt to commit

arson in the second degree. Although the defendant renews these claims

of error in the present appeal as alternative grounds for affirmance, their

existence is irrelevant to the question of whether the Appellate Court’s

decision violated the precepts of Blumberg.

3 General Statutes (Rev. to 2013) § 53a-155 (a) provides: ‘‘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; or (2) makes, presents or uses

any record, document or thing knowing it to be false and with purpose

to mislead a public servant who is or may be engaged in such official

proceeding.’’

4

In reaching this conclusion, the Appellate Court relied in part on the

absence of evidence that would have shown a completed offense. See State
v. Stephenson, supra, 187 Conn. App. 38 (‘‘[n]o evidence was presented that

any case file was altered, destroyed, concealed or removed in any way’’).

5

In Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 162 n.34, we overruled Sequenzia and Dalzell

only to the extent that those cases stood for the proposition that supplemental briefing is ‘‘the sole condition for [a] reviewing court to raise a new issue

sua sponte pursuant to its supervisory power . . . .’’ Such a conclusion

cannot, however, be read to imply that supplemental briefing is not required

at all.

6 The defendant claims that his continued incarceration would be unjust

and asks us to exercise our supervisory authority to order his release pending

the resolution of his appeal. The use of that power is, however, limited to

the most extraordinary cases. See, e.g., State v. Edwards, 314 Conn. 465,

498–99, 102 A.3d 52 (2014). The defendant has provided no reason to distinguish the present case from other criminal appeals in which an uninvited

error committed by either the Appellate Court or the trial court necessitates

further proceedings.