
    STATE of Connecticut v. Ricardo O. MYERS
    AC 39621
    Appellate Court of Connecticut.
    Argued September 12, 2017 Officially released November 14, 2017
    S. Max Simmons, assigned counsel, for the appellant (defendant).
    Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, and Gary Nicholson, former senior assistant state's attorney, for the appellee (state).
    Lavine, Elgo and Flynn, Js.
   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-54a and two counts of assault in the first degree in violation of General 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. Accordingly, 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 altercation 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. 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 residual exception to the hearsay rule. 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 principal 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 discretion 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, 170 A.3d 2 (2017).

"It is a fundamental rule of appellate review of evidentiary 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., at 817, 162 A.3d 63. 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 Control , 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 evidentiary 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 analyzed for the first time in an appellant's reply brief. State v. Garvin , supra, 242 Conn. at 312, 699 A.2d 921. 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 rulings, 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. at 820, 162 A.3d 63 ; 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. at 74, 23 A.3d 668 (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. at 244, 777 A.2d 633 (claims of error must be raised in "original" brief); State v. Holmes , supra, 176 Conn. App. at 184-85, 169 A.3d 264 (harm must be raised in "principal" brief); State v. Toro , supra, 172 Conn. App. at 818, 162 A.3d 63 (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. Essentially, 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. at 818-19, 162 A.3d 63. 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 defendant'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 subpoena and give testimony subject to cross-examination under oath. 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.

LAVINE, J., concurring.

I agree with the majority that it is established law that an appellant must raise and analyze in his principal brief any matters necessary for the determination of his appeal and cannot do so for the first time in his reply brief. I also agree that in this case, the defendant, Ricardo O. Myers, failed to provide in his principal brief any analysis of how the court's allegedly erroneous ruling was harmful. This rule makes perfect sense in ninety-nine out of one hundred cases because it is designed to prevent an appellee from being ambushed by an appellant who holds back an argument and then unfairly springs it on an adversary. See State v. Thompson , 98 Conn. App. 245, 248, 907 A.2d 1257, cert. denied, 280 Conn. 946, 912 A.2d 482 (2006) (fair that appellant raise all issues in main brief, otherwise appellee would not be alerted to them and have opportunity to respond to them in writing).

Rigid adherence to the rule in this case is unnecessary. Given the facts, the defendant's failure to analyze how he was harmed by the court's evidentiary ruling does not matter. The defendant was charged with one count of murder and two counts of assault in the first degree. The jury found him guilty, and he was sentenced to forty-seven years of imprisonment.

Failure to address this issue now is highly inefficient. The somewhat unusual posture of this case obviates any concern that a plethora of similar cases will find their way to this court. It is likely, however, that the evidentiary issue raised in this appeal may return to this court after it is litigated in a different action and in a different forum. For the sake of judicial economy and in the interests of the parties, I believe this straight-forward evidentiary issue should be resolved now. I would reach the merits of the issue presented and would conclude that the trial court's ruling excluding the videotape from evidence should be affirmed.

The defendant's theory of defense at trial was: "I didn't do it. Someone else did." To support his theory, the defendant sought to present Latrell Rountree's videotaped statement to the jury. If the jury believed Rountree, it would have exculpated the defendant, and resulted in a verdict of not guilty. The defendant's claim on appeal that he was harmed is obvious. I, therefore, would review the defendant's claim that he was harmed by the court's sustaining the state's objection to the videotaped statement. I believe that courts should, where possible and fair to all parties, decide cases rather than avoid or delay their resolution.

Rountree's videotaped statement was the sole evidence offered by the defendant. Rountree stated that Gary Pope, not the defendant, was the shooter. The harmfulness of the court's decision to exclude this third-party culpability is evident. The state's brief on appeal demonstrates that it was not surprised or ambushed by the defendant's failure to argue that he was harmed by the court's ruling in his principal brief. The state devoted six and one-half pages of its brief to its argument that Rountree's videotaped statement was not admissible under the residual exception to the hearsay rule.

Appellate courts review the exclusion of evidence offered pursuant to the residual exception to the hearsay rule of the Connecticut Code of Evidence under an abuse of discretion standard. See State v. Shehadeh , 52 Conn. App. 46, 50, 725 A.2d 394 (1999) (abuse of discretion and showing of substantial prejudice or injustice). Clearly, there was no abuse of discretion here. The court ticked off a list of reasons why it did not conclude that Rountree's videotaped statement was supported by "equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule," as required by § 8-9 (2) of the Connecticut Code of Evidence. Among them were the fact that Rountree's statement was provided without the benefit of an oath; that Roundtree waited six days to provide any information to the police about the death of his friend, the victim, Tirrell Drew; that Rountree only gave his statement when he was under police custody on unrelated charges; that Rountree lied about having viewed a photograph of Pope prior to being shown photographs by the police; that Rountree was under the influence of an intoxicant on the night of the crime; that Rountree gave inconsistent stories about a fight that had allegedly occurred at the time of the incident; that there was no clear evidence of the distance between Rountree and the shooter at the time of the shooting; and that Rountree was not subject to cross-examination at any time.

Because I believe that the defendant's claim of harm with respect to the court's evidentiary ruling is unambiguously self-evident, because I believe this court should reach the substance of the issue presented in this appeal and because I would affirm the trial court's evidentiary ruling, I respectfully concur. To the extent that this conclusion conflicts with the precedents cited by the majority, I believe the circumstances of this case, and the need to conserve the resources of the court and counsel and to resolve this case without further delay, justify this modest departure.

For the foregoing reasons, I respectfully concur. 
      
      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.
     
      
      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."
     
      
      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.
     
      
      The trial court then issued a capias, but Rountree could not be located.
     
      
      Section 8-9 of the Connecticut Code of Evidence provides in relevant part: "A statement that is not admissible under any of the foregoing exceptions is admissible if the court determines that ... (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."
     