STATE v. VICTOR L. JORDAN, SR., SC 18995

Judicial District of Waterbury

 Criminal; Whether Supreme Court Should Overrule State v. Foreshaw, Which held that a Defendant who Discards Evidence While Fleeing from Police may be Convicted of Tampering with Physical Evidence; Whether Prosecutor Improperly Failed to Correct the Misleading Testimony of Two State’s Witnesses.  The state accused the defendant of attempting to rob a bank and of discarding incriminating evidence while fleeing from the police.  The defendant was ultimately convicted of attempt to commit robbery in the third degree, conspiracy to commit robbery in the third degree and tampering with physical evidence.  On appeal, he argued that his conviction of tampering with physical evidence was improper because the state failed to prove that when he discarded the incriminating evidence, he did so with the knowledge that an “official proceeding” was pending or was about to be instituted as contemplated by General Statutes § 53a-155.  He also contended that, when two witnesses for the state, who had criminal charges pending against them, falsely testified that they did not receive any benefit with regard to those charges in exchange for their testimony, the prosecutor improperly failed to correct the testimony.  The Appellate Court (135 Conn. App. 635) rejected the defendant’s claims and affirmed his convictions.  With regard to the propriety of the conviction of tampering with physical evidence, the Appellate Court determined that the jury reasonably could have found that, while fleeing from the police, the defendant discarded incriminating evidence, including a ski mask and a jacket, in an attempt to ensure that such evidence would not be used against him in a subsequent criminal prosecution.  The court opined that this evidence was sufficient to support the defendant’s conviction under State v. Foreshaw, 214 Conn. 540 (1990), which held that a defendant who discards evidence while fleeing from the scene of a crime may be convicted of tampering with physical evidence even if no “official proceeding” had been instituted at the time that the evidence was discarded.  The court further emphasized that, as an intermediate appellate body, it was bound by the Supreme Court’s decision in Foreshaw.  As to the defendant’s claim of prosecutorial impropriety, the Appellate Court concluded that although the prosecutor had a duty to correct the record when two witnesses for the state falsely testified that they did not receive any benefit in exchange for their testimony, the defendant was not deprived of a fair trial as a result of the prosecutor’s failure to act.  It reasoned that, in addition to the testimony of the two witnesses, the state presented other evidence of the defendant’s guilt and that the prosecutor did not attempt to use the misleading testimony to the state’s advantage by specifically referring to it during closing arguments.  In this appeal, the Supreme Court will decide whether the prosecutor’s failure to correct the misleading testimony deprived the defendant of a fair trial and whether Foreshaw should be overruled.