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STATE OF CONNECTICUT v. KENNETH LEE MCCOY
(AC 38789)
Beach, Sheldon and Flynn, Js.*
Argued October 20, 2016—officially released March 7, 2017
(Appeal from Superior Court, judicial district of New
Haven, Blue, J.)
Daniel J. Foster, assigned counsel, for the appel-
lant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, Maxine V. Wilensky, senior assistant state’s
attorney, and Mary Elizabeth Baran, former senior
assistant state’s attorney, for the appellee (state).
Opinion
BEACH, J. The defendant, Kenneth Lee McCoy,
appeals from the judgment of conviction, rendered after
a jury trial, of murder in violation of General Statutes
§ 53a-54a (a). The defendant claims that (1) the state
engaged in prosecutorial misconduct, thereby depriving
him of his due process right to a fair trial, and (2) the
court erred in dismissing his motion for a new trial for
lack of jurisdiction. We disagree and affirm the judg-
ment of the trial court.
The jury reasonably could have found the following
facts. During the fall of 2011, the victim, Dallas Boomer,
saw both the defendant and Tramont Murray, his close
friends, on a daily basis. The three men often conducted
drug deals together out of rental cars with out of state
license plates. During November, 2011, the defendant
became estranged from both the victim and Murray.
According to Murray, the defendant and the victim were
involved in a financial dispute after the victim crashed
a car belonging to the defendant’s girlfriend. In addition,
both the victim and Murray wanted to distance them-
selves from the defendant because of the defendant’s
alleged alcoholism and increasingly erratic behavior.
On December 6, 2011, at approximately 1 o’clock in
the morning, the victim was sitting in the driver’s seat
of a parked rental car on a residential street in New
Haven. Murray was sleeping in the reclined passenger
seat. The victim saw the defendant’s car pull over to
the side of the road and idle nearby, so he shook Murray
awake. Murray instructed the victim to drive away. The
defendant then approached the victim’s parked vehicle
with his hand in his sleeve and began shooting at the
windshield. The victim attempted to drive away, but
could not. Six bullets struck the rental car, and the
victim suffered fatal injuries as a result.
Immediately after the shooting, Murray, the sole wit-
ness, was questioned by the police. When the police
asked Murray to identify the shooter, he stated that he
had not seen the shooter, that he could not tell whether
the shooter was white or black, and that he did not
know whether there was one shooter or multiple shoot-
ers. Three weeks later, on December 27, Murray made
a second statement to the police in which he identified
the defendant as the shooter. Murray testified consis-
tently with this statement at the defendant’s trial. Mur-
ray, who then had three criminal cases pending against
him, was questioned extensively as to whether he had
received a plea deal in exchange for his testimony. He
denied having received a plea deal, but admitted that
he had received immunity for his testimony and $1100
in cash for relocation as part of a witness protection
program.
Three months after the jury found the defendant
guilty, the court, Blue, J., sentenced him to sixty years
incarceration. This appeal followed. Additional relevant
facts will be set forth as necessary.
I
The defendant first claims that prosecutorial impro-
priety deprived him of his constitutional right to a fair
trial. Specifically, the defendant claims that the prosecu-
tor acted improperly when she (1) attempted to elicit
inadmissible prior consistent statements made by Mur-
ray, (2) asked the jury during closing argument to specu-
late as to a conversation that was not in evidence, and
(3) argued during closing argument that, in order for
the jurors to determine that Murray had received a
special plea agreement in exchange for his testimony,
they must believe defense counsel’s argument that the
state’s witnesses were lying. Although we conclude that
some of the prosecutor’s actions were improper, we
disagree with the defendant’s claim that any impropri-
ety deprived him of a fair trial.
Our standard of review on a claim of prosecutorial
impropriety is well established. ‘‘[I]n analyzing claims
of prosecutorial [impropriety], we engage in a two step
analytical process. The two steps are separate and dis-
tinct: (1) whether [impropriety] occurred in the first
instance; and (2) whether that [impropriety] deprived
a defendant of his due process right to a fair trial. Put
differently, [impropriety] is [impropriety], regardless of
its ultimate effect on the fairness of the trial; whether
that [impropriety] caused or contributed to a due pro-
cess violation is a separate and distinct question that
may only be resolved in the context of the entire trial
. . . .’’ (Internal quotation marks omitted.) State v. Lus-
ter, 279 Conn. 414, 428, 902 A.2d 636 (2006). ‘‘In
determining whether prosecutorial [impropriety] was
so serious as to amount to a denial of due process, this
court, in conformity with courts in other jurisdictions,
has focused on several factors. Among them are the
extent to which the [impropriety] was invited by
defense conduct or argument . . . the severity of the
[impropriety] . . . the frequency of the [impropriety]
. . . the centrality of the [impropriety] to the critical
issues in the case . . . the strength of the curative mea-
sures adopted . . . and the strength of the state’s
case.’’ (Citations omitted.) State v. Williams, 204 Conn.
523, 540, 529 A.2d 653 (1987).
We will first determine whether the particular con-
duct was, in fact, improper. We will then consider
whether the totality of the established improprieties
deprived the defendant of a fair trial.
A
1
The defendant first claims that the prosecutor
engaged in impropriety when, on three occasions, she
attempted to elicit prior consistent statements in viola-
tion of a court order. The following additional facts are
relevant to this claim.
On the first day of trial, outside the presence of the
jury, the prosecutor asked the court whether Murray’s
second statement to the police, in which he identified
the defendant as the shooter, would be admissible as a
prior consistent statement. The court responded: ‘‘Well,
again, without finally ruling on that, the answer is not
necessarily because the rule generally is that when a
witness is impeached for a prior inconsistent statement,
prior consistent statements are not normally admissi-
ble. They can be admissible under the discretion of
the court, particularly—and I emphasize particularly—
where the prior consistent statement precedes the prior
inconsistent statement. But, frankly, if following the
prior consistent statement the witness has given a
bunch of consistent statements, that ordinarily does
not come in. You know, be aware of that. The case law
is quite clear on that. . . . I may have, you know, some
ultimate discretion, we have to see what develops, but
certainly the answer to what you just said is not neces-
sarily.’’ The court further stated: ‘‘I haven’t given my
final ruling on this because I have to see what the
witness says on direct, obviously, but I think you must
be aware of the general way that I look at this so that
you are not surprised, and I think that I have said so.’’
Two days later, on direct examination, the prosecutor
addressed Murray as follows: ‘‘Now, with regard to giv-
ing that statement [to the police] on December 27, which
is essentially what you spoke about today . . . .’’
Defense counsel objected, and the court sustained the
objection, noting that ‘‘[t]he contents of the second
interview should not be divulged further than they
already have been without expressed permission of the
court. As you know, there are evidentiary rules per-
taining thereto.’’
Later, the prosecutor asked Murray: ‘‘And let me just
ask you this: when you spoke to the police again, what
did you tell them with regard to who was the shooter?’’
The court sua sponte excused the jury and addressed
the prosecutor, stating: ‘‘I don’t know how many times
I have told you on the record, and, I believe, explicitly,
that consistent statements—prior consistent state-
ments are not admissible into evidence unless they pre-
cede prior inconsistent statements. . . . I have told
you, with respect to the second interview, on multiple
occasions, multiple occasions do not get into the
contents.’’
After the prosecutor indicated that she did not think
that the court had been explicit in ruling that Murray’s
prior consistent statements were inadmissible, the
court stated that ‘‘[u]nder no circumstances without
prior permission of the court must you—may you ask
this witness about any prior consistent statement post-
dating the original inconsistent statement of December
6. You may not ask him about the substance of that
without prior permission of the court, that includes,
but is not limited to, his—the substance of his statement
to the police on December 27. I had thought that I was
explicit, but perhaps I was not, and if so, please forgive
me.’’ The court continued, stating: ‘‘I have told you
repeatedly not to go there. If you go there again, without
prior permission of the court, you are asking—you are
basically going to require me to do things that, believe
me, I do not want to do. So, don’t go there.’’
Subsequently, after asking Murray whether he had
visited the victim’s family the day after the victim’s
murder, the prosecutor asked: ‘‘With regard to what
had occurred with [the victim’s] murder, did you tell
them what happened?’’ Defense counsel objected, and
the court sustained the objection, instructing the prose-
cutor to ‘‘[a]sk your next question, keeping in mind
rulings that the court has already made.’’
The defendant argues that these comments and ques-
tions were improper because the prosecutor ‘‘repeat-
edly sought to introduce hearsay statements that the
trial court had ruled inadmissible.’’ The state responds
that the prosecutor’s questions were not improper, and,
even if they were, the alleged improprieties did not
deprive the defendant of a fair trial. We agree with the
state that the defendant was not deprived of a fair trial.
Although the court’s response to the prosecutor’s
second attempt to elicit Murray’s prior consistent state-
ments suggests that the prosecutor may have been
‘‘improperly aggressive’’ in continuing to seek the
admission of those statements, the court did not set
forth a full evidentiary ruling and order until after the
second attempt. See State v. Ortiz, 280 Conn. 686, 706–
707, 911 A.2d 1055 (2006) (prosecutor ‘‘improperly
aggressive’’ in asking question three times after court
sustained objection to nearly identical question). In
addition, the record indicates that the prosecutor may
not have understood the court’s determination regard-
ing these statements,1 although a misunderstanding
would not necessarily preclude a finding of impropriety.
See id., 704 (‘‘[i]t is well settled that prosecutorial dis-
obedience of a trial court order, even one that the prose-
cutor considers legally incorrect, constitutes improper
conduct’’). Even if we were to assume, however, that
the prosecutor improperly disregarded the trial court’s
evidentiary rulings, for reasons set forth in part I B of
this opinion, we conclude that her actions did not
deprive the defendant of a fair trial.
2
The defendant next claims that the prosecutor
behaved improperly when she asked the jury to specu-
late as to a conversation between Murray and his
mother that had not been admitted into evidence. Spe-
cifically, in the course of her closing argument, the
prosecutor stated: ‘‘They talked, and he told her things,
I can’t say what they were, but I think you can think
about it.’’ Defense counsel objected, and the court
instructed the jury that ‘‘[t]his is not in evidence. Do
not speculate. That is improper argument.’’ It is well
established that ‘‘[a] prosecutor may invite the jury to
draw reasonable inferences from the evidence, how-
ever, he or she may not invite sheer speculation uncon-
nected to evidence.’’ State v. Singh, 259 Conn. 693, 718,
793 A.2d 226 (2002). Here, the prosecutor’s statement
invited speculation about statements unconnected to
the evidence. The state concedes that this statement
was improper. We agree.
3
Finally, the defendant claims that the prosecutor
engaged in impropriety when, in response to defense
counsel’s argument that Murray had received a plea
deal in exchange for his testimony, she suggested to the
jury that ‘‘if you are to believe what [defense counsel] is
opining, it’s [defense counsel’s] opinion that all of those
people are lying, not just mistaken or uncertain, but
those people took the stand and lied.’’ The defendant
argues that this argument violated our Supreme Court’s
holding in Singh because it distorted the government’s
burden of proof. The state argues that the prosecutor’s
comment did not constitute a Singh violation because
‘‘the testimony relating to the absence of a deal between
the state and Murray did not directly relate to the defen-
dant’s guilt or innocence.’’ We agree with the state.
Under Singh, ‘‘closing arguments providing, in
essence, that in order to find the defendant not guilty,
the jury must find that witnesses had lied, are . . .
improper’’ because they ‘‘preclude the possibility that
the witness’ testimony conflicts with that of the defen-
dant for a reason other than deceit.’’ State v. Singh,
supra, 259 Conn. 710, 712. Here, the prosecutor argued
that in order for the jurors to find that Murray had
received a secret plea deal, they would need to find
that several of the other witnesses had lied. This argu-
ment did not improperly present the jury with a choice
between believing the state’s witnesses and acquitting
the defendant. Cf. State v. Albino, 312 Conn. 763, 788,
97 A.3d 478 (2014). As the state has pointed out, the
jury could have believed the witnesses’ testimony that
Murray had not received a plea deal and still voted to
acquit the defendant, because the prosecutor’s argu-
ment did not improperly draw ‘‘a direct connection
between the defendant’s acquittal and the credibility
of every other witness in the case.’’ Id. Instead, the
prosecutor’s argument drew a connection between the
existence of a witness’ plea deal and the credibility2
of several other witnesses. Therefore, the prosecutor’s
argument did not violate Singh, and was not improper.
B
We turn now to the question of whether the impropri-
eties ‘‘so infected the trial with unfairness as to make the
conviction a denial of due process.’’ (Internal quotation
marks omitted.) State v. Thompson, 266 Conn. 440, 477,
832 A.2d 626, 651 (2003). ‘‘In determining whether pros-
ecutorial [impropriety] was so serious as to amount to
a denial of due process, this court, in conformity with
courts in other jurisdictions, has focused on several
factors. Among them are the extent to which the [impro-
priety] was invited by defense conduct or argument
. . . the severity of the [impropriety] . . . the fre-
quency of the [impropriety]. . . the centrality of the
[impropriety] to the critical issues in the case. . . the
strength of the curative measures adopted . . . and the
strength of the state’s case.’’ (Citations omitted.) State
v. Williams, supra, 204 Conn. 540. We conclude that
the defendant was not deprived of a fair trial.
Some factors weigh in the defendant’s favor. First,
the prosecutor’s improprieties were not invited by the
defense. Second, the improprieties identified previously
all involved attempts to bolster Murray’s credibility,
and, because Murray was the sole witness to the actual
crime, his credibility was central to the case. Also, the
strength of the state’s case largely depended on the
credibility of Murray’s testimony,3 and thus this factor
weighs in favor of the defendant.
The remaining factors support a conclusion that the
improprieties did not deprive the defendant of a fair
trial. Although the improprieties occurred both during
the examination of a witness and in closing argument;
see State v. Warholic, 278 Conn. 398, 897 A.2d 569
(2006); they were infrequent in the context of the defen-
dant’s week long trial. The prosecutor’s improprieties
were not severe, and the court promptly responded
with curative instructions.
With respect to the prosecutor’s reference to the con-
tents of a conversation that was not in evidence, the
court immediately instructed the jury to disregard the
prosecutor’s comment, noting that ‘‘[t]his is not in evi-
dence. Do not speculate. That is improper argument.’’
‘‘[W]e have previously recognized that a prompt cau-
tionary instruction to the jury regarding improper prose-
cutorial remarks or questions can obviate any possible
harm to the defendant.’’ (Internal quotation marks omit-
ted.) State v. Ceballos, 266 Conn. 364, 413, 832 A.2d 14
(2003). This ‘‘specific, direct and immediate instruction
by the trial court’’; id.; mitigated harm to the defendant,
and the effect of the prosecutor’s impropriety was amel-
iorated.
With respect to the prosecutor’s attempts to elicit
Murray’s prior consistent statements, defense counsel,
an attorney with twenty-eight years of experience in
criminal defense, objected every time the prosecutor
made such attempts. Because the court sustained the
defendant’s objection every time and reprimanded the
prosecutor, the prosecutor never actually succeeded in
eliciting Murray’s prior consistent statements. In addi-
tion, the court instructed the jurors prior to their delib-
erations that ‘‘[i]t is the answer, not the question or the
assumption made in the question that is the evidence.’’
As a result, the effect of the questions and comments
that the prosecutor made in an attempt to elicit Murray’s
prior consistent statements was mitigated and was
not severe.
Moreover, Murray’s second statement to the police
indirectly was introduced into evidence without objec-
tion,4 so the jury was already familiar with its contents.
Although the prosecutor arguably behaved improperly
in attempting to reemphasize Murray’s prior consistent
statements, presumably to bolster his credibility, the
effect of these foiled attempts was not severe, because
the jury did not receive any new, inadmissible informa-
tion. Accordingly, we conclude that the defendant was
not deprived of a fair trial.
II
The defendant next claims that the court erred in
denying his motion for a new trial on the basis of a
lack of jurisdiction. We are not persuaded.
The following additional facts are relevant to this
claim. On March 18, 2013, one week after the defendant
was convicted of murder, he filed a motion for a new
trial alleging that the prosecutor had ‘‘continually elic-
ited hearsay statements that the [c]ourt had precluded
by an earlier ruling and offered inadmissible hearsay
statements during closing [argument].’’ On May 22,
2013, while the defendant’s motion for a new trial was
pending, Murray was sentenced for offenses that had
been pending before and during the defendant’s trial.
Murray was charged with (1) violation of probation on
an underlying charge of sexual assault in the second
degree; (2) violation of probation on an underlying
charge of carrying a pistol without a permit; and (3)
interfering with an officer, and (4) reckless driving. The
prosecutor who represented the state in the defendant’s
case testified at Murray’s sentencing hearing. She testi-
fied that, based on her experience working with and
getting to know Murray throughout the defendant’s
case, she believed that Murray deserved a lesser sen-
tence. For his four pending offenses, Murray received
a sentence of continued probation and concurrent sen-
tences of one year imprisonment, execution suspended,
and eighteen months conditional discharge.
Two weeks later, the defendant’s sentencing hearing
took place. At the hearing, defense counsel attempted
to argue the defendant’s motion for a new trial, but was
stymied by the unavailability of the trial transcript. Both
defense counsel and the court agreed to postpone argu-
ments until the transcript became available. Defense
counsel stated that, so long as the motion was heard
at a later date, he did not have a problem going forward
with the defendant’s sentencing. The court agreed, stat-
ing: ‘‘[T]he proper way to consider this argument, which
I—let me just say I view as colorable . . . is to have
the transcript, have [defense counsel] file a memoran-
dum with transcript references, and have the state—
give the state a fair opportunity to file a memorandum
of [its] own with transcript references, and then perhaps
schedule argument, you know, at a convenient time.
Obviously, there are a lot of family members here that
are here to see the sentencing, and you’re not proposing
postponing the sentencing. You’re just proposing having
the—having the motion for a new trial heard at a [later]
date.’’ The court then sentenced the defendant to sixty
years incarceration.
Approximately three months later, on September 3,
2013, the defendant amended his motion for a new trial
to include a claim that the prosecutor had, in violation
of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963), failed to disclose consideration
given to Murray in exchange for his testimony. On Sep-
tember 20, 2013, the court denied the defendant’s
motion for a new trial for lack of jurisdiction, citing
State v. Luzietti, 230 Conn. 427, 646 A.2d 85 (1994) for
the proposition that a trial court loses jurisdiction over
a criminal case once the defendant has been sentenced.5
As a result, the court did not reach the merits of the
defendant’s motion. The defendant filed a motion for
reconsideration, arguing that the court retained juris-
diction under State v. Myers, 242 Conn. 125, 698 A.2d
823 (1997). The court granted the motion for reconsider-
ation, but again denied the motion for a new trial for
lack of jurisdiction, stating that Myers ‘‘does not
address the jurisdictional issue.’’ The defendant subse-
quently appealed from his conviction to this court.
The defendant argues that the trial court retained
jurisdiction over his motion for a new trial under our
Supreme Court’s holding in Myers. The state responds
that the trial court properly ruled that it lacked jurisdic-
tion over the defendant’s motion for a new trial. We
agree with the state.
‘‘A determination regarding a trial court’s subject mat-
ter jurisdiction is a question of law [over which] our
review is plenary . . . .’’ (Internal quotation marks
omitted.) State v. DeVivo, 106 Conn. App. 641, 644, 942
A.2d 1066 (2008). It is well settled that ‘‘the jurisdiction
of the sentencing court terminates once a defendant’s
sentence has begun, and, therefore, that court may no
longer take any action affecting a defendant’s sentence
unless it expressly has been authorized to act.’’ Cobham
v. Commissioner of Correction, 258 Conn. 30, 37, 779
A.2d 80 (2001). The defendant argues that, contrary
to this long-standing precedent, our Supreme Court’s
decision in Myers resolves the jurisdictional issue in
the defendant’s favor. In Myers, our Supreme Court
determined that ‘‘a claim of juror bias may be brought
either by way of a motion for a new trial pursuant to
§ 902 [now §42-53] of the Practice Book or a petition
for a new trial pursuant to [General Statutes] § 52-270.’’
State v. Myers, supra, 242 Conn. 134. In rendering its
decision, the court noted in passing that ‘‘[t]he trial
court indicated . . . that its ruling on the defendant’s
motion after imposing sentence was improper, and that
the issue of a juror’s impartiality must be addressed by
way of a petition for a new trial. Notwithstanding this
procedural quagmire, the trial court retained jurisdic-
tion to entertain the motion for a new trial after sentenc-
ing because it could have opened the judgment.’’
(Footnotes omitted; internal quotation marks omitted.)
Id., 136. As support for this statement, the court cited
to State v. Wilson, 199 Conn. 417, 437, 513 A.2d 620
(1986), in which it previously had held that a criminal
judgment ‘‘may be modified in matters of substance’’
within four months of a defendant’s sentence having
been imposed.
Wilson has not been explicitly overruled. Eight years
after its holding in Wilson, however, our Supreme Court
again held that ‘‘under the common law a trial court has
the discretionary power to modify or vacate a criminal
judgment before the sentence has been executed.’’
(Emphasis added.) State v. Luzietti, supra, 230 Conn.
431–32. The dissenting justices in Luzietti noted that
the majority’s decision ‘‘cannot be reconciled with this
court’s pronouncement in . . . Wilson’’ because it
‘‘clings to the general rule that the trial court may not
alter the judgment once the sentence has been exe-
cuted.’’ Id., 436, 438. The dissent made several argu-
ments in favor of applying the so-called four month rule
as stated in Wilson, but the majority apparently was
not swayed by these arguments. See id., 435–41 (Katz,
J., dissenting).
Because Myers was decided three years after the
court applied the traditional rule in Luzietti, one might
argue that Myers suggests a return to the four month
rule. The court in Myers did not, however, actually
apply the four month rule because Myers did not
directly address a jurisdictional issue. Instead, Myers
focused on whether it was generally permissible to
bring a claim of juror bias in a motion for a new trial,
or if a claim of juror bias must always be brought in
a petition for a new trial. The court determined that
‘‘[a]llegations of juror misconduct must be addressed
at whatever stage they are encountered,’’ and therefore
could be brought in a motion for a new trial. Id., 139.
Although the underlying facts in Myers were similar to
those in this case in that the trial court ruled on the
defendant’s motion for a new trial after sentencing, the
jurisdictional issue was not raised or fully addressed
on appeal.
As such, Myers is not binding on that issue, and the
rule that our Supreme Court has adhered to in the years
following both Myers and Luzietti applies. Under this
rule, the trial court loses jurisdiction upon sentencing;
see, e.g., Cobham v. Commissioner of Correction,
supra, 258 Conn. 37; State v. Reid, 277 Conn. 764, 775,
894 A.2d 963 (2006); State v. Das, 291 Conn. 356, 362,
968 A.2d 367 (2009); and motions for a new trial are no
exception to this rule. See State v. Bruno, 132 Conn.
App. 172, 178–79, 30 A.3d 34 (2011) (‘‘Practice Book
§ 42-54 authorizes the trial court in a criminal case to
entertain a motion for a new trial filed pursuant to
Practice Book § 42-53 only prior to the termination of
its jurisdiction upon sentencing . . . . [Our] Supreme
Court, in explaining the distinction between the petition
for a new trial pursuant to . . . § 52-270 and the motion
for a new trial brought pursuant to the rules of practice,
has emphasized that a motion for a new trial is filed in
a case then in progress or pending and is merely a
gradation in that case leading to a final judgment.’’
[Internal quotation marks omitted.]), cert. denied, 303
Conn. 919, 34 A.3d 393 (2012).
Applying the traditional rule to this case, we conclude
that the court’s jurisdiction over the defendant’s crimi-
nal case terminated when the defendant was sentenced.
The trial court lost jurisdiction when the defendant
was sentenced on June 6, 2013.6 Therefore, the court
properly denied the defendant’s motion for a new trial.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The following conversation took place between the court and the prose-
cutor after the prosecutor’s second attempt to elicit Murray’s prior consis-
tent statements:
‘‘The Court: Have I been explicit in any way? Because if I have, I need
to know that.
‘‘[The Prosecutor]: Yes, you have.
***
‘‘[The Prosecutor]: With all due respect to the court—
‘‘The Court: Uh-huh.
‘‘[The Prosecutor]: —my understanding of a prior consistent statement—
‘‘The Court: Uh-huh.
‘‘[The Prosecutor]: —does not include the testimony of the witness, if
you will, on the stand talking about his own actions.
***
‘‘The Court: I am just going to say, unless you know of some authority
that has repealed Practice Book—Practice Book [§] 6-11 (a), which is a
general rule that is very explicit, do not go there.
‘‘[The Prosecutor]: All right.’’
2
We nevertheless question the logic of the argument, in general terms,
that if the fact finder reaches a conclusion inconsistent with a witness’
testimony, the fact finder implicitly concludes that the witness lied. The
conclusion is most decidedly not logically compelled.
3
As the state’s appellate counsel stated at oral argument before this court,
‘‘without Tramont Murray there’s really no case, certainly no conviction.’’
The prosecutor expressed a similar sentiment at Murray’s sentencing hear-
ing, noting that ‘‘Mr. Murray was all of our evidence.’’
4
After Murray testified as to what happened during the shooting, identified
the defendant as the shooter, and admitted that he had not identified the
defendant as the shooter in his first statement to the police, the prosecutor
asked Murray the following:
‘‘[The Prosecutor]: Did there come a time about three weeks later when
you went back into the police department and gave another statement?
‘‘[Murray]: Yes.
‘‘[The Prosecutor] And in that statement, did you essentially tell the police
what you have testified to today in court?
‘‘[Murray]: Yes.’’
5
In denying the defendant’s motion, the court acknowledged that the
parties and the court had inadvertently removed the motion from the trial
court’s jurisdiction. The court stated: ‘‘The jurisdictional argument, as you
know, was not raised at the initial time of sentencing and maybe all three
of us, you know, can take some responsibility . . . for that. Having said
that, the jurisdictional argument is not a matter of my intent . . . once
sentence is pronounced and the defendant begins serving that sentence
. . . the trial court just plain has no jurisdiction.’’
6
From the record, it is clear that the court did not intend to create
this jurisdictional issue and, on the contrary, fully intended to hear the
defendant’s motion for a new trial after sentencing. The parties’ collective
mistake may leave the impression that the defendant’s motion should have
been heard in the spirit of fairness. We note, however, that at the time
the court expressed its intent to hear the defendant’s motion, that motion
included only the defendant’s claims for prosecutorial impropriety, which
have been fully addressed in part I of this opinion. The defendant did not
amend his motion to include the Brady claim until September, 2013, three
months after the trial court lost jurisdiction over the defendant’s case.
Therefore, the trial court has never had jurisdiction over the defendant’s
Brady claim.
We also note that a newly discovered Brady claim may be brought within
three years after sentencing by the independent vehicle of a petition for a
new trial. See General Statutes § 52-270; Practice Book § 42-55.