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STATE OF CONNECTICUT v. RICARDO O. MYERS
(AC 39621)
Lavine, Elgo and Flynn, Js.
Syllabus
Convicted of, inter alia, the crime of murder in connection with the shooting
death of the victim, the defendant appealed. During the defendant’s trial,
he sought to admit into evidence a video recording of an interview with
the police, wherein a witness who was unavailable to testify, R, identified
a third party as the shooter of the victim. After hearing argument, the
trial court ruled that the video was not admissible under the residual
exception to the hearsay rule. On appeal, the defendant claimed that
the trial court erred in excluding the video interview of R. Held that
the defendant’s claim, raised for the first time in his reply brief, that
the court’s improper exclusion of the video recording of R’s interview
was harmful was not reviewable, as an appellant must raise and analyze
in his first and principal brief any matters necessary for the determina-
tion of his appeal, and cannot raise and analyze a claim for the first
time in a reply brief, and, therefore, it was the defendant’s responsibility
to analyze the harm that flowed from the court’s evidentiary ruling
in his principal brief; moreover, although the defendant claimed that,
because the excluded evidence imputed culpability to a third party, the
harm from its exclusion was so obvious that he did not need to brief
and analyze it in his principal brief, he was still required to provide
some analysis, in writing in his principal brief, concerning how he was
harmed from the claimed error given the other evidence before the jury,
so as to give the appellee a fair opportunity to respond to it in writing and
the reviewing court the full benefit of the appellee’s written response.
(One judge concurring)
Argued September 12—officially released November 14, 2017
Procedural History
Substitute information charging the defendant with
the crime of murder, and with two counts of the crime
of assault in the first degree, brought to the Superior
Court in the judicial district of New Haven, geographical
area number twenty-three, and tried to the jury before
Vitale, J.; verdict and judgment of guilty, from which
the defendant appealed. Affirmed.
S. Max Simmons, assigned counsel, for the appel-
lant (defendant).
Marjorie Allen Dauster, senior assistant state’s attor-
ney, with whom, on the brief, were Patrick Griffin,
state’s attorney, and Gary Nicholson, former senior
assistant state’s attorney, for the appellee (state).
Opinion
FLYNN, J. It has been long settled in our appellate
procedure that an appellant must raise and analyze in
his first and principal brief any matters necessary for
the determination of his appeal, and cannot do so for
the first time in his reply brief. The defendant, Ricardo
O. Myers, was convicted, after a jury trial, of murder
in violation of General Statutes § 53a-54a1 and two
counts of assault in the first degree in violation of Gen-
eral Statutes § 53a-59 (a) (5). On appeal, the defendant
claims that the trial court erred in excluding the video
interview of a witness who was unavailable to testify.
Because the defendant failed to brief any analysis of
how the alleged erroneous ruling was harmful, until he
filed a reply brief, his claim is unreviewable. Accord-
ingly, we affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On May 17, 2013, the defendant, along with Dwight
Crooks and Gary Pope, was at the Lazy Lizard club in
New Haven. The club let out during the early hours of
May 18, 2013, and the trio made its way out with the
crowd. Once outside, an argument ensued between the
defendant’s group and another group that was across
the street. The argument escalated to a physical alterca-
tion before officers of the New Haven police stepped
in and caused the groups to disperse. The defendant
and his friends then got into Pope’s car and drove
around before parking in a different lot not far from
the club. The three then headed out on foot to meet
someone they knew when they encountered again the
group from Lazy Lizard. Some provocative remarks
were made and the two groups moved toward each
other. Crooks testified at trial that, at this point, he
heard gunshots, and he turned to see the defendant
holding a gun. Two bullets struck and killed Tirrell
Drew, who was a member of the other group, and stray
bullets injured two bystanders. The bullets recovered
from Drew’s body were found to have been fired from
a .40 caliber semiautomatic Glock handgun owned by
the defendant and seized from his residence by the
police on June 14, 2013, nearly a month after the
shooting.
The defendant subsequently was arrested and
charged with murder and two counts of assault in the
first degree. The issue on appeal arises because six
days after the shooting, a person named Latrell
Rountree, while in custody on an unrelated matter,
revealed to the police that he was Drew’s friend and
was present when Drew was shot. Rountree identified
Pope as the shooter. At trial, the defendant attempted
to call Rountree as a witness, but could not secure
his presence. The defendant then sought to admit into
evidence a video recording of Rountree’s interview with
the police, wherein Rountree identified Pope as the
shooter. After hearing argument, the trial court ruled
that the video was not admissible under the residual
exception to the hearsay rule.2 On June 3, 2015, the jury
found the defendant guilty on all three counts, and the
court rendered judgment accordingly. This appeal
followed.
The defendant claims that the trial court abused its
discretion in refusing to admit the video under the resid-
ual exception to the hearsay rule.3 The state contends
that the court did not abuse its discretion. Additionally,
as a threshold matter, the state also contends that this
court should not reach the defendant’s claim because
he failed to analyze in his principal brief how he was
harmed by the alleged erroneous ruling. In his reply
brief, the defendant presents his harmful error analysis
for the first time. At oral argument, the defendant
asserted that the harm resulting from the court’s ruling
is implicit in his principal brief because this court has
enough information before it to review harm. Because
the defendant failed to provide any analysis in his princi-
pal brief as to how he was harmed by the trial court’s
ruling, we decline to review his claim.
‘‘It is well settled that, absent structural error, the
mere fact that a trial court rendered an improper ruling
does not entitle the party challenging that ruling to
obtain a new trial. An improper ruling must also be
harmful to justify such relief. . . . The harmfulness of
an improper ruling is material irrespective of whether
the ruling is subject to review under an abuse of discre-
tion standard or a plenary review standard. . . . When
the ruling at issue is not of constitutional dimensions,
the party challenging the ruling bears the burden of
proving harm.’’ (Internal quotation marks omitted.)
State v. Toro, 172 Conn. App. 810, 816, 162 A.3d 63,
cert. denied, 327 Conn. 905, A.3d (2017).
‘‘It is a fundamental rule of appellate review of eviden-
tiary rulings that if [the] error is not of constitutional
dimensions, an appellant has the burden of establishing
that there has been an erroneous ruling which was
probably harmful to him.’’ (Internal quotation marks
omitted.) Id., 817. It is also ‘‘a well established principle
that arguments cannot be raised for the first time in a
reply brief.’’ (Internal quotation marks omitted.) State
v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997); see
also SS-II, LLC v. Bridge Street Associates, 293 Conn.
287, 302, 977 A.2d 189 (2009); Calcano v. Calcano, 257
Conn. 230, 244, 777 A.2d 633 (2001); Commissioner of
Health Services v. Youth Challenge of Greater Hartford,
Inc., 219 Conn. 657, 659 n.2, 594 A.2d 958 (1991). ‘‘[I]t
is improper to raise a new argument in a reply brief,
because doing so deprives the opposing party of the
opportunity to respond in writing.’’ (Internal quotation
marks omitted.) Markley v. Dept. of Public Utility Con-
trol, 301 Conn. 56, 74, 23 A.3d 668 (2011).
In the present case, the defendant appeals from an
evidentiary ruling of a nonconstitutional nature. As
such, it is the defendant’s responsibility to analyze, in
his principal brief, the harm that flows from an eviden-
tiary ruling. The defendant did not do this but, instead,
referenced harm only in his reply brief. Under our rules
of appellate practice, issues cannot be raised and ana-
lyzed for the first time in an appellant’s reply brief.
State v. Garvin, supra, 242 Conn. 312. This rule is a
sound one because the appellee is entitled to but one
brief and should not therefore be left to speculate at
how an appellant may analyze something raised for the
first time in a reply brief, which the appellee cannot
answer. See State v. Thompson, 98 Conn. App. 245, 248,
907 A.2d 1257, cert. denied, 280 Conn. 946, 912 A.2d
482 (2006). Specifically with regard to evidentiary rul-
ings, this court, on multiple occasions, has declined
to review claims where the appellant fails to analyze
harmful error in his or her principal brief. See, e.g.,
State v. Toro, supra, 172 Conn. App. 820; State v. Baker,
168 Conn. App. 19, 37, 145 A.3d 955, cert. denied, 323
Conn. 932, 150 A.3d 232 (2016). Recently, in State v.
Holmes, 176 Conn. App. 156, 183, 169 A.3d 264 (2017),
this court deemed the appellant’s claim abandoned,
where he failed to brief the harm suffered from an
evidentiary ruling that he claimed was erroneous.
Unless these Appellate Court rulings are overturned
en banc, they are binding on us. State v. Ortiz, 133
Conn. App. 118, 122, 33 A.3d 862 (2012), aff’d, 312 Conn.
551, 93 A.3d 1128 (2014). Rulings of our Supreme Court
reflect a plethora of authority that prohibits us from
reaching the merits of the appellant’s claim. See, e.g.,
Markley v. Dept. of Public Utility Control, supra, 301
Conn. 74 (claims or arguments cannot be raised for
first time in reply brief); Grimm v. Grimm, 276 Conn.
377, 393–94 n.19, 886 A.2d 391 (2005) (same), cert.
denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815
(2006); Eskin v. Castiglia, 253 Conn. 516, 528 n.8, 753
A.2d 927 (2000) (same); see also Calcano v. Calcano,
supra, 257 Conn. 244 (claims of error must be raised
in ‘‘original’’ brief); State v. Holmes, supra, 176 Conn.
App. 184–85 (harm must be raised in ‘‘principal’’ brief);
State v. Toro, supra, 172 Conn. App. 818 (harm must
be shown in ‘‘main’’ brief).
The defendant also argues, however, that harm was
implicit in his principal brief because this court has
enough information before it to review harm. Essen-
tially, the defendant contends that because the
excluded evidence imputed culpability to a third party,
the harm from its exclusion is so obvious that he did
not need to brief and analyze it in his principal brief.
This argument misses the point that there must be some
analysis of how the defendant was harmed from the
claimed error given the other evidence before the jury.
See State v. Toro, supra, 172 Conn. App. 818–19. As our
precedent instructs, this needs to be done in writing in
the defendant’s first and principal brief on appeal so
that the appellee has a fair opportunity to respond to
it in writing and the reviewing court has the full benefit
of the appellee’s written response.
Here, the jury reasonably could have found that the
defendant shot Drew to death by firing two bullets
that entered Drew’s body. Both bullets came from the
defendant’s gun and were recovered from Drew’s body.
The defendant still was in possession of this gun a
month after the shooting. Crooks testified at the defen-
dant’s trial under oath and was cross-examined on his
testimony that it was the defendant who shot Drew.
Rountree, on the other hand, refused to honor a sub-
poena and give testimony subject to cross-examination
under oath.4 The defendant was convicted of murder
for the killing, as well as for two counts of assault in
the first degree for shooting two other men, who did
not die, as part of the same altercation. Under these
circumstances, we are not convinced that any harm
resulting from the exclusion of Rountree’s interview is
self-evident in light of the evidence presented at trial.
Accordingly, because the defendant failed to brief and
analyze in his primary brief the resulting harm from the
court’s exclusion of the video recording of Rountree’s
interview, we decline to consider whether the trial court
abused its discretion.
The judgment is affirmed.
In this opinion ELGO, J., concurred.
1
Although § 53a-54a was the subject of amendments in 2015; see Public
Acts 2015, No. 15-84, § 9; those amendments have no bearing on the merits
of this appeal. In the interest of simplicity, we refer to the current revision
of the statute.
2
Section 8-9 of the Connecticut Code of Evidence provides: ‘‘A statement
that is not admissible under any of the foregoing exceptions is admissible
if the court determines that (1) there is a reasonable necessity for the
admission of the statement, and (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.’’
3
The defendant also argues that where a video recording adequately
captures a witness’ interrogation by law enforcement, such that the fact
finder’s ability to judge the declarant’s credibility is unencumbered, that
video should be admissible under the residual exception to the hearsay rule.
Because we do not reach the merits of this appeal, we do not address
this argument.
4
The trial court then issued a capias, but Rountree could not be located.