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STATE v. JORDAN—CONCURRENCE AND DISSENT

ZARELLA, J., with whom PALMER and EVELEIGH,

Js., join, concurring in part and dissenting in part. I

agree with the majority’s conclusion in part I of its

opinion that the defendant, Victor L. Jordan, Sr., was

not deprived of his right to a fair trial because of the

prosecutor’s failure to correct the potentially misleading testimony of two state witnesses. I disagree,

however, with the majority’s conclusion in part II of its

opinion that there was insufficient evidence to support

the defendant’s conviction of tampering with physical

evidence in violation of General Statutes § 53a-155. In

my view, the majority’s analysis is flawed because it

overlooks the testimony of a key state witness regarding

the defendant’s belief at the time he discarded the clothing, ignores other evidence that the defendant intended

to discard the clothing because he believed an official

proceeding was probable, and misconstrues this court’s

holding in State v. Foreshaw, 214 Conn. 540, 572 A.2d

1006 (1990). Accordingly, I respectfully dissent from

part II of the majority opinion.

I

I begin with the majority’s failure to acknowledge

the highly persuasive testimony of Jennifer Campbell,

a key prosecution witness. The majority states that ‘‘the

jury could not reasonably have concluded that the

defendant believed that an official proceeding against

him was probable when he discarded the evidence’’

because ‘‘there was no evidence that the defendant

believed that the police officer knew his identity or had

any other information connecting him to the crime.’’

The majority further maintains that ‘‘[t]here [was] no

evidence that when the defendant discarded the clothing he believed that the police officer had any information, other than the clothing, linking him to the

attempted bank robbery. Thus, the defendant discarded

the only piece of evidence connecting him to the crime

. . . .’’ The majority thus concludes that the evidence

was insufficient to support the jury’s finding that the

defendant tampered with physical evidence in violation

of § 53a-155 (a). I disagree.

At trial, Campbell, the defendant’s girlfriend, testified

that the defendant called her and asked her to meet

him at a nearby motel on the evening of April 1, 2008,

shortly after he eluded the police. Campbell also testified that, when she asked the defendant what had happened and why he was wet and his jeans were muddy,

he stated that ‘‘he was going to commit a heist, but the

place was closed.’’ Campbell added in response to a

question as to whether the defendant had said anything

about being chased: ‘‘Yes. He said he [was] being chased

through the muddy woods because the police had

assumed he was the person in the mask.’’
From this undisputed testimony, the jury reasonably

could have inferred that the defendant believed at the

time he disposed of the clothing that an official proceeding was probable because, in his mind, the police officer

chasing him assumed he was the person who had

attempted to enterthe bank. The fact that the defendant

was apparently unaware of the parking lot witness, the

police radio report describing a suspicious male who

had tried to enter the bank, or any other direct evidence

connecting him to the crime is immaterial. Campbell’s

testimony as to what the defendant believed, together

with evidence that he hid the highly identifiable clothing

in a closed trash container and behind a nearby carport,

is undeniably powerful and, in my view, indicative of

his guilt. Indeed, I would suggest that the foregoing

evidence is even more persuasive than the evidence

this court found convincing in State v. Foreshaw, supra,

214 Conn. 550, because there was no testimony in Foreshaw regarding the defendant’s state of mind before

she disposed of the gun. See id., 550–51.

The majority dismisses Campbell’s testimony, claiming that ‘‘the most reasonable explanation for the defendant’s subsequentremoval and discarding of the clothes

. . . was that he did so in the hope that, if the police

ultimately apprehended him, they would be unable to

identify him as the person who had been wearing the

clothes.’’ Footnote 21 ofthe majority opinion.I disagree,

especially when Campbell’s testimony is considered

together with other evidence of the defendant’s conduct

during and following the pursuit.

After the defendant’s initial contact with the police,

he decided to run, with the police officer chasing him,

to his own, easily identifiable vehicle to speak with

Herman Cordero, his friend, on Birch Meadow Drive,

a dead-end street that required Cordero to drive past

the officer in order to escape. It is common sense that

the defendant would believe that the officer saw him

stop and speak to Cordero and that the officer would

be able to provide an accurate description of the vehicle, and possibly even a license plate number. The

defendant also knew that his cell phone was in the

vehicle and contained additional identifying information.

Once the defendant arrived at Sprucewood Road, the

next street over, he appeared to believe he was still

being chased, but, presumably, after seeing that the

officer had not successfully followed him through the

woods, he stopped and looked around. Only after the

defendant escaped the officer’s pursuit did he begin

taking off some of his outer clothing. Moreover, the

defendant did not throw the clothing to the ground, as

one would expect from someone fleeing from the police

but, instead, hid them in a closed trash container and

behind a nearby carport. If the defendant truly believed

that the police did not have enough information to iden-
tify and arrest him, it would have been far more logical

and efficient for him to discard the clothing quickly

rather than taking the time to conceal it. Accordingly,

because the defendant would have known, at the time

he hid the clothing, that the police had, or would soon

have, a significant amount of evidence that would likely

result in his arrest and prosecution, the jury reasonably

could have concluded that the defendant believed at

that time that an official proceeding was probable.

The majority posits that the fact that the defendant

said to Cordero, ‘‘meet me on the other street, meet

me on the other street,’’ when he spoke with Cordero

on Birch Meadow Drive weighs against an inference

that the defendant believed an official proceeding was

probable. If anything, however, this statement supports

the opposite conclusion. After the defendant told Cordero to ‘‘meet [him] on the other street,’’ the defendant

ran into the woods and onto Sprucewood Road, where

he appeared to be looking around. Cordero, however,

never arrived at Sprucewood Road. From this evidence,

the jury could have reasoned that the defendant

expected to see Cordero on Sprucewood Road and that,

after Cordero failed to appear, the defendant believed

Cordero had been stopped and would provide information to the police about the attempted robbery.

The defendant’s actions after he discarded the clothing also suggest that he believed an official proceeding

was probable. For example, instead of going home that

night, the defendant chose to stay in a motel with his

family. He also asked Campbell to check them in under

her name. Such precautions would have been unnecessary if the defendant had believed the police did not

have enough information to identify, locate and

arrest him.1

A jury also could reasonably find, merely on the basis

of evidence that the defendant discarded the clothing,

that he did so with the intent to prevent its availability

at a probable future proceeding. This court has stated

that ‘‘[i]ntent may be, and usually is, inferred from [a]

defendant’s verbal or physical conduct. . . . Intent

may also be inferred from the surrounding circumstances. . . . 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. Ortiz, 312 Conn. 551, 565, 93

A.3d 1128 (2014). Thus, if the circumstances were such

that the defendant believed that an official proceeding

was likely and that the items of clothing probably would

be used against him at a subsequent trial, then it follows

that the defendant’s disposal or concealment of that

evidence evinced his intent to obstruct the use of the

evidence at the future proceeding.

In the present case, because the defendant had covered his face, making identification difficult, the dark,
heavy clothing was one of the most important pieces

of evidence connecting him to the crime. It is reasonable

to infer, however, that the defendant did not believe

that the clothing was the only evidence linking him to

the crime because, as previously explained, he would

have been aware that there existed other incriminating

evidence, as well. Thus, although disposal of the clothing would not have prevented the police from eventually

identifying and arresting him, it would have made the

state’s case more difficult to prove at trial.

‘‘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.’’

(Emphasis added; internal quotation marks omitted.)

Id., 572. Section 53a-155 (a) requires only that a defendant believe that an official proceeding is probable and

that the evidence was discarded to prevent its availability for use in such a proceeding. I thus disagree with

the majority that ‘‘the most reasonable explanation for

the defendant’s subsequent removal and discarding of

the clothes . . . was that he did so in the hope that,

if the police ultimately apprehended him, they would

be unable to identify him as the person who had been

wearing the clothes.’’ Footnote 21 of the majority opinion. Rather, in view of Campbell’s testimony regarding

the defendant’s state of mind when he saw the police

officer chasing him, as well as all of the other evidence

of his conduct during and following the pursuit, the

jury reasonably could have inferred that the defendant

hid the highly identifiable clothing not only to prevent

the police from finding it and using it to apprehend

and identify him, but to conceal it so that it would

be unavailable at a proceeding that was ‘‘about to be

instituted . . . .’’ General Statutes § 53a-155.

II

I also disagree with the majority’s interpretation of

Foreshaw. The majority appears to suggest that, under

Foreshaw, the state must prove that the defendant

believed an official proceeding was probable because

he was aware of significant evidence connecting him

to the crime. The majority explains that, ‘‘because [the

defendant in Foreshaw] anticipated that the police

would apprehend her on the basis of information connecting her to the shooting, she disposed of the gun

believing that an official proceeding, and not just an

investigation, was pending or probable. . . . Conversely, had [the defendant] discarded the gun to pre-
vent detection or to avoid being implicated in the

shooting in the first instance, and thus believing that

only an investigation, and not an official proceeding,

was pending or probable, the belief and intent elements

[of] § 53a-155 would be lacking.’’ (Emphasis added.) I

disagree with the majority’s interpretation of Foreshaw

because it conflates the evidence in that case with the

legal principles on which the Foreshaw court relied in

upholding the defendant’s conviction.

Although the court relied in part on evidence that

there were witnesses to the shooting, it had no intention

of establishing a new legal principle that a defendant’s

knowledge of witnesses or other direct evidence connecting him to the crime is absolutely necessary to

establish the mens rea element of § 53a-155. See State

v. Foreshaw, supra, 214 Conn. 550–51. Rather, the court

reasoned that ‘‘[t]he statute . . . speaks to that which

is readily apt to come into existence or be contemplated

and thus plainly applies to the official proceeding arising out of such an incident.’’ (Emphasis added.) Id.,

551. In other words, the court construed the statute

broadly in order to accommodate the wide range of

evidence from which a jury could infer that a defendant

believed an official proceeding was probable when tampering with physical evidence. Thus, the type of incriminating evidence the court found persuasive in Foreshaw, which consisted of witnesses to the shooting,

the defendant’s immediate flight from the scene, and

her subsequent admission that she discarded the gun

to avoid being caught with it in her possession; id., 550;

is persuasive in other cases only to the extent they

involve similar facts.

Imposing an inflexible requirement that there be evidence of the defendant’s prior knowledge of witnesses

or other evidence directly connecting him to the crime

is unwise because it is not mandated by the statute and

invades the province of the jury. Section 53a-155 (a)

provides in relevant part: ‘‘A person is guilty of tampering with . . . 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 . . . .’’ The statute

makes no reference to the type of evidence required to

satisfy the mens rea element, and for good reason. As

this court recently noted in a case involving witness

tampering under General Statutes § 53a-151 (a),2 which

contains a similar mens rea element, ‘‘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 . . . 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

forthe jury to decide.’’(Emphasis added.) State v. Ortiz,

supra, 312 Conn. 566 n.7. Accordingly, requiring as a
matter of law that the defendant have knowledge of

witnesses or other evidence directly connecting him to

the underlying crime in order to establish the mens

rea element of § 53a-155, which is what the majority

appears to have done, strips the jury of its authority

to decide whether other evidence, such as evidence

indirectly connecting the defendant to the underlying

crime, is sufficient to support an inference that the

element has been satisfied. I therefore disagree with

the majority that Foreshaw compels the application of

such a requirement in this or any future case in which

the facts may differ.

In sum, this court’s task is not to determine the most

compelling or likely scenario but, rather, to view the

evidence in the light most favorable to sustaining the

verdict and to determine whether there is sufficient

evidence to support that verdict. The majority’s

approach in the present case ‘‘simply is inconsistent

with our well settled review of sufficiency challenges,

which are conducted with an eye toward sustaining

jury verdicts, even those with which this court may

disagree.’’ State v. Fourtin, 307 Conn. 186, 231, 52 A.3d

674 (2012) (Norcott, J., dissenting). Consequently,

because I believe there is sufficient evidence from

which the jury reasonably could have inferred that the

defendant acted with the requisite belief and intent, and

because it is uncontested that the defendant disposed

of the relevant evidence, I would conclude that the

defendant’s conviction of tampering with physical evidence should stand.

For the foregoing reasons, I respectfully dissent from

part II of the majority opinion.

1

I agree with the majority that the relevant inquiry is whether the defendant believed, at the time he discarded the clothing, that an official proceeding was probable. That does not mean, however,that the jury cannot consider

events that occurred after the defendant discarded the clothing to infer that

belief, such as his checking into a motel under Campbell’s name. This court

commonly considers subsequent actions by the defendant to determine an

earlier intent. For instance, we consider evidence of fleeing from the scene

of a crime as evidence of a defendant’s consciousness of guilt. See, e.g.,

State v. Figueroa, 257 Conn. 192, 196, 777 A.2d 587 (2001) (‘‘[f]light, when

unexplained, tends to prove a consciousness of guilt’’ [internal quotation

marks omitted]). The weight of this evidence is a question for the jury.

In the present case, the defendant checked into the motel mere hours

after the alleged crime occurred. This evidence clearly would be relevant

to a jury in determining whether the defendant believed an official proceeding was probable when he had discarded the clothing.

2 General Statutes § 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.’’