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STATE OF CONNECTICUT v. VICTOR L. JORDAN, SR.(SC 18995)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa andRobinson, Js.

Argued January 13—officially released November 4, 2014

Pamela S. Nagy, assigned counsel, for the appel-lant (defendant).

Timothy J. Sugrue, assistant state’s attorney, withwhom, on the brief, were Maureen Platt, state’s attor-ney, and Terence D. Mariani, senior assistant state’sattorney, for the appellee (state).

Opinion

ROGERS, C. J. The two issues that we must resolvein this certified appeal are whether the Appellate Courtproperly concluded that the defendant, Victor L. Jordan,Sr., was not deprived of his right to a fair trial dueto the prosecutor’s failure to correct the potentiallymisleading testimony of two witnesses, and whetherthis court should overrule its construction of the evi-dence tampering statute, General Statutes § 53a-155,1

in State v. Foreshaw, 214 Conn. 540, 572 A.2d 1006(1990), and hold that the defendant’s conduct in thepresent case did not constitute evidence tamperingunder § 53a-155.2 The defendant appeals from the judg-ment of the Appellate Court affirming his conviction,rendered after a jury trial, of attempt to commit robberyin the third degree in violation of General Statutes§§ 53a-49 (a) (2) and 53a-136, conspiracy to commitrobbery in the third degree in violation of General Stat-utes §§ 53a-48 and 53a-136, and tampering with physicalevidence in violation of § 53a-155. The defendant makestwo primary claims on appeal. First, the defendantclaims that the Appellate Court improperly concludedthat the prosecutor’s failure to correct the potentiallymisleading testimony of two witnesses denying theywere promised benefits by the state in exchange fortheir testimony did not violate the defendant’s due pro-cess right to a fair trial. Second, the defendant claimsthat this court should overrule its interpretation of§ 53a-155 in Foreshaw and hold that, under a properunderstanding of that statute, his conviction cannotstand. We reject the defendant’s claim regarding theprosecutor’s failure to correct the potentially mis-leading testimony of two witnesses, and we also rejecthis claim that Foreshaw should be overruled. We con-clude, however, that under a proper understanding ofForeshaw, the defendant’s conduct did not come withinthe ambit of § 53a-155. Accordingly, we affirm in part,and reverse in part, the judgment of the Appellate Court,and conclude that the defendant’s conviction under§ 53a-155 should be set aside.

The relevant facts and procedural history giving riseto this appeal are set forth in the opinion of the Appel-late Court. ‘‘The jury reasonably could have found thefollowing facts. On April 1, 2008, Tannith McDonnell,the assistant manager of the Naugatuck Savings Bank[bank] located at 565 Straits Turnpike in Watertown,met an acquaintance, Patsy Lombardi, in the bank park-ing lot at approximately 4 p.m. after she had locked thebank’s doors for the day. While seated in Lombardi’scar, [McDonnell] observed a man approach the bankwho was wearing a heavy black coat with a raised hood,a camouflage ski mask, dark jeans and black gloves.The man placed a gloved hand inside his pocket andpulled ‘aggressively’ on the bank door with the otherhand. When the locked door would not open, the man

walked back down the sidewalk and out of sight.McDonnell waited until the man cleared the corner andthen used Lombardi’s cell phone to call 911 and reporther observations to the police. Watertown [P]olice Offi-cer Jeffrey McKirryher, who was on duty nearby direct-ing traffic, received McDonnell’s report over his policeradio. McKirryher immediately saw a likely suspect andwhen he called out to him, the man took off, running.

‘‘McKirryher chased the suspect onto Birch MeadowDrive, a nearby cul-de-sac, where he saw a tan vehiclewith two distinctive black doors parked at the end ofthe road. The suspect made brief contact with the opera-tor of the tan vehicle and then ran into a wooded area.As the car was driven away, McKirryher broadcast hisobservations over his police radio. Shortly thereafter,Watertown [P]olice Detective David Bromley heard thereport, saw the tan car and pursued it until it came toa halt at a police roadblock.

‘‘Virginia Palmer was on Birch Meadow Drive walkingher dog when she saw a light-skinned black or Hispanicman in a dark jacket running up her street while beingchased by police. Palmer observed that the fleeing manwas wearing a telephone earpiece, and she heard himsay, ‘[M]eet me on the other street, meet me on theother street.’ The man then ran into the wooded areaat the top of the street. Gerald Boudreau was home onBirch Meadow Drive that afternoon and saw a blackman wearing dark clothes and sunglasses run acrosshis backyard while removing his jacket and runningtoward Sprucewood Road.

‘‘Katherine Desantis, who lived on Sprucewood Road,which runs parallel to Birch Meadow Drive, saw a blackman wearing a dark jacket, dark jeans and a dark col-ored ‘do-rag’ on his head, run from behind a neighbor’shouse. She noted that the man kept looking behind himas if he was being pursued. While the man was in themiddle of the street, she saw the man remove his jacket,revealing its bright colored lining. Desantis telephonedthe police as the man was in her neighbor’s yard, lookingaround. Desantis next saw the man in her own backyardremoving his gray sweatshirt and then going aroundto the back of her carport. Desantis’ husband, DennisDesantis, arrived home shortly after the police had leftand located a sweatshirt ‘crumbled up in a ball’ at the farside of the carport. Two days later, Katherine Desantislocated a dark jacket with a bright red-orange lining ina neighbor’s trash can. The police collected the graysweatshirt and the dark jacket from the Desantises.When removing the jacket from the trash can, the policealso discovered a ‘black fabric type item’; a ‘neoprene-like fabric mask’ that was black on one side and camou-flaged on the other; a pair of black leather gloves; anda ‘small, black plastic . . . shopping bag.’

‘‘The tan automobile with two black doors that washalted by the police at the roadblock was an Infiniti

sedan registered to the defendant. The lone occupantand operator of the vehicle was Herman Cordero. Cord-ero testified that he fixed cars for a living and that hehad been working on the defendant’s car at a nearbySuper 8 Motel on the day of the incident. He statedthat, because he needed more tools, he decided to getsome from his house. Cordero testified that he drovethe defendant’s Infiniti, with the defendant as a passen-ger, to retrieve the tools and that on the way the defen-dant asked him to pull over in the LaBonne’sSupermarket parking lot. LaBonne’s Supermarket and[the bank] are on opposite ends of the same parkinglot. The defendant gave no reason for wanting to alightfrom the car, but simply stated that he would be backin a few minutes. Cordero claimed that because it tookthe defendant longer to return than he had expected,he decided to continue to his home to retrieve the toolsand then return to the parking lot for the defendant.Once en route, however, he changed his mind aboutdriving alone to his home because he did not want thedefendant to think he was stealing his car. Accordingly,he claimed, he pulled into a cul-de-sac for a few minutesto wait. He stated that it was just a coincidence thathe stopped in the cul-de-sac that the fleeing suspect hadused as an escape route. Although the police discoveredthree cell phones in the Infiniti pursuant to a searchwarrant, Cordero denied making any contact with the[defendant] between the time he dropped him off atthe parking lot and his confrontation with the police.

‘‘One of the cell phones discovered by the police ledthem to Jennifer Campbell, a woman who was romanti-cally involved with the defendant. Campbell testifiedthat the defendant called her at about 8 p.m. on April1, 2008, and said that he needed help. He asked her tomeet him at the Super 8 Motel where, he said, he wasgoing by taxicab and where he would be with his wifeand children. Campbell testified that when she arrivedat the motel, the defendant asked her to rent a roomin her name, and he provided her with money for thecost of the room. According to Campbell, after settlinginto the room with her, the defendant attempted multi-ple times to call a person named ‘Jun,’ but he could notreach him. Although she knew who Jun was, she didnot learn that his real name was Herman Cordero untilafter she was arrested. Campbell testified that she hadseen the defendant and Cordero, whom she knew asJun, together ‘[v]ery many’ times, and she describedthe two men as ‘[v]ery tight . . . very close.’

‘‘While the defendant and Campbell were in the motelroom, the defendant expressed concern that ‘they’re’going to connect him and her together because hisiPhone, left in the car, contained her first and last namein its directory. Campbell stated that when she askedthe defendant who ‘they’ were, the defendant avoidedanswering the question. After some further discussion,Campbell called Eric Pearson to ask that he rent a

separate room for the defendant. Thereafter, Campbelldrove to her home in Bristol to retrieve clothing for thedefendant because his jeans were muddy and he waswet and cold. Campbell testified that when she returnedwith the clothing and asked the defendant why he waswet, he replied that he was going to ‘commit a heist’in Watertown but the building was closed, and that thepolice had chased him through a muddy wooded area,believing that he was the person who had been spottedwearing a mask in the vicinity of the bank.

‘‘Campbell also testified that on April 2, 2008, thedefendant asked her for a ride to the court in Bridgeport.Campbell agreed and drove to Waterbury in her bur-gundy Buick LeSabre where she picked up the defen-dant at a [7-Eleven] store. She drove the defendant tothe Super 8 Motel, where, she claimed, he got ‘veryexcited’ and told her to ‘[k]eep going, get out of there,we got to get out of here.’ She testified that she believedthe defendant was excited as a result of seeing Detec-tives David McKnight and Michael Ponzillo of the Water-bury [P]olice [D]epartment speaking with thedefendant’s wife at the Super 8 Motel. In his testimony,McKnight stated that he saw a red Buick in the parkinglot, recognized the defendant as its front seat passengerand locked eyes with him. McKnight testified that afterhe saw the defendant motion the Buick’s operator tokeep moving, the car took off at a high rate of speed.

‘‘Later in the day, after Campbell received cell phonemessages that Waterbury detectives wanted to speakwith her, the defendant drove her to the police station.According to Campbell, although she initially was unco-operative, she eventually agreed to help the police tryto lure the defendant to a place where he could beapprehended. That effort, however, proved unsuc-cessful.

‘‘On April 16, 2008, the police tracked the defendantto a residence on Congress Avenue in Watertown,where he was found hiding in a closet. The defendantrefused to comply with the commands of the police tosubmit to arrest. Instead, he was removed from theresidence by force and taken into custody.

‘‘The items of clothing and apparel seized by thepolice from the Desantises’ neighbor’s trash can weresubmitted to the state forensic laboratory for DNA anal-ysis with the result that the defendant was includedas a contributor in each sample except one. The loneexception was the mixture extracted from the collar ofthe jacket. As to this sample, the police concluded onlythat the defendant could not be eliminated as a con-tributor.

‘‘Following the police investigation, the defendantwas charged by information with the following offenses:count one, attempt to commit robbery in the first degreein violation of [General Statutes] §§ 53a-49 (a) (2) and

53a-134 (a) (4); count two, conspiracy to commit rob-bery in the first degree in violation of §§ 53a-48 and53a-134; count three, attempt to commit larceny in thesecond degree in violation of [General Statutes] §§ 53a-49 (a) (2) and 53a-123 (a) (3); count four, conspiracyto commit larceny in the second degree in violation of§§ 53a-48 and 53a-123 (a) (3); and count five, tamperingwith physical evidence in violation of § 53a-155.

‘‘At the conclusion of its case-in-chief in the defen-dant’s jury trial, the state conceded that the evidencewas insufficient to find the defendant guilty of attemptto commit [robbery in the first degree] and conspiracyto commit robbery in the first degree. The partiesagreed, however, that sufficient evidence existed to findthe defendant guilty of the lesser offenses of attemptto commit [robbery in the third degree] and conspiracyto commit robbery in the third degree. Accordingly,the trial court rendered judgment of acquittal on thecharged offenses relating to robbery in the first degreeand expressed its intention to submit the lesser inchoateoffenses to the jury. The court also rendered judgmentof acquittal on the counts charging the defendant withattempt to commit [larceny in the second degree] andconspiracy to commit larceny in the second degree.

‘‘Thereafter, the state filed an amended informationthat conformed to the court’s rulings, and the jury foundthe defendant guilty as charged in the amended informa-tion. As noted, the defendant also had been charged in apart B information with committing each of the chargedoffenses while on pretrial release in violation of [Gen-eral Statutes] § 53a-40b and with being a persistent seri-ous felony offender in violation of General Statutes§ 53a-40 (c). The defendant elected that the part Bcharges be tried to the court. Following an evidentiaryhearing, the court found the defendant guilty as chargedin part B of the amended information. The court there-after imposed a total effective sentence of thirty yearsimprisonment, to be served consecutively to any sen-tence the defendant was then serving.’’ (Footnotes omit-ted.) State v. Jordan, 135 Conn. App. 635, 638–44, 42A.3d 457 (2012). Additional facts will be set forth as nec-essary.

The defendant appealed from the trial court’s judg-ment to the Appellate Court, claiming, inter alia,3 thathe was denied a fair trial because the prosecutor failedto correct the allegedly false testimony of Cordero andCampbell; id., 658; and that his conviction of tamperingwith physical evidence under § 53a-155 should bereversed because his conduct did not fall within theterms of the statute. Id., 652. In response to the prosecu-torial impropriety claim, the state argued that the defen-dant was not entitled to a new trial because (1) thedefendant had waived his due process claim by notconfronting the witnesses at trial, (2) the prosecutorhad not acted improperly, and (3) in the alternative, the

defendant was not harmed by the prosecutor’s failure tocorrect the witnesses’ testimony. Id., 658. The AppellateCourt agreed with the defendant that he had not waivedhis claim and that the prosecutor had a duty to correctthe testimony, but ultimately concluded that this impro-priety had not denied the defendant his due processright to a fair trial.4 Id., 667. With respect to the defen-dant’s claim that, under a proper interpretation of § 53a-155, his conduct did not violate that statute, the Appel-late Court determined that this claim would require itto overrule this court’s decision in Foreshaw, whichwas a ‘‘task beyond [the Appellate Court’s] charter.’’Id., 653. This certified appeal followed.

I

We first consider the defendant’s claim that theAppellate Court improperly concluded that the prosecu-tor’s failure to correct the potentially misleading5 testi-mony of Cordero and Campbell did not deprive thedefendant of a fair trial. The defendant argues that theprosecutor’s alleged impropriety violated his right to afair trial because there is a reasonable likelihood thatthe potentially misleading testimony of these witnessescould have affected the jury’s verdict as their testimonywas crucial to the state’s case. The state responds thatthe prosecutor’s failure to correct the potentially mis-leading testimony did not violate the defendant’s dueprocess right to a fair trial because there was sufficientindependent evidence of the defendant’s guilt.6 Weagree with the state.

‘‘The following additional facts are relevant to thisclaim. Before Cordero testified and outside the pres-ence of the jury, the prosecutor explained to defensecounsel and to the court on the record that he hadspoken to Cordero’s counsel and that Cordero, whohad been charged in connection with the present case,indicated that he may elect to testify for the state. Theprosecutor further stated: ‘[J]ust so the record is clear,what I said to [Cordero’s counsel] and what I said to[defense counsel] about [Cordero’s] cooperation is thatif he testified we would bring his cooperation to thesentencing judge . . . when his case is disposed of.And that’s the extent of the agreement.’

‘‘Thereafter, Cordero appeared in court and testifiedin the presence of the jury. He admitted that he wascurrently incarcerated and charged with bank robberyfor two separate incidents. Following testimony regard-ing the events of April 1, 2008, the prosecutor asked:‘And what—what were you promised in exchange fortestifying here today?’ to which Cordero responded,‘[n]othing.’ The prosecutor thereafter asked no furtherquestions to clarify the discrepancy between Cordero’sanswer and representations the prosecutor had madeto the court and counsel before Cordero’s testimony. Oncross-examination, the following exchange took placebetween defense counsel and Cordero:

‘‘ ‘[Defense Counsel]: And you indicate you don’texpect any kind of benefit from testifying here today?

‘‘ ‘[Cordero]: No, sir.

‘‘ ‘[Defense Counsel]: Okay. You—you don’t expectto get any kind of consideration for your two robberycases for testifying here today?

‘‘ ‘[Cordero]: No, sir.

‘‘ ‘[Defense Counsel]: And you’ve been incarceratedsince the date of your arrest. Correct?

‘‘ ‘[Cordero]: Yes, sir.

‘‘After Cordero had concluded his testimony, and leftthe witness stand, the prosecutor informed the courtthat the state’s next witness, Campbell, was representedby counsel, and that [the prosecutor] needed to speakwith her counsel. Thereafter, the prosecutor placed thefollowing information on the record, outside the pres-ence of the jury, but in the defendant’s and defensecounsel’s presence: ‘The next witness is . . . . Camp-bell. And again, as [defense counsel] is aware, she hasa pending case. I believe she’s charged with hinderingprosecution based on [the events relating to the caseon trial]. [Campbell] is represented by [counsel], and[I] made the same representation to her and her clientas I did to [Cordero’s counsel] and his client . . . thattheir cooperation, if any, would be brought to the atten-tion of the sentencing judge at the time that [their cases]are disposed of.’ Campbell then appeared in court andtestified in the presence of the jury regarding the eventsof April 1 and 2, 2008. During direct examination, shestated that she was charged with hindering prosecutionon the basis of her involvement with the defendant inthe present case. The following exchange thenoccurred:

‘‘ ‘[The Prosecutor]: Now, after you talked to yourattorney, did you make any decisions about being moreforthcoming with the police and with the [S]tate’s[A]ttorney’s [O]ffice; did you end up coming in andgiving more information?

‘‘ ‘[Campbell]: Yes.

‘‘ ‘[The Prosecutor]: Okay. Now, when you and Ispoke, it was [I]nspector Joe Forte [who] was thereand your attorney. Is that correct?

‘‘ ‘[Campbell]: Yes.

‘‘ ‘[The Prosecutor]: And what promises, if any, weremade to you about your testimony here today?

‘‘ ‘[Campbell]: None.

‘‘ ‘[The Prosecutor]: Is what you’re telling us heretoday the truth?

‘‘ ‘[Campbell]: Yes.’

‘‘As with Cordero, the prosecutor asked no furtherquestions of Campbell to clarify the discrepancybetween her testimony and the prosecutor’s representa-tions to the court and counsel. On cross-examination,defense counsel did not ask Campbell any questionson the subject of any agreement with the state.

‘‘Despite having been informed by the prosecutor thatboth Cordero and Campbell had an agreement with thestate, defense counsel did not directly confront eitherwitness with this information. The record reveals thathe asked neither witness any questions pertaining toany specific agreement either had with the state otherthan general questions to Cordero as already noted.

‘‘During his jury argument, defense counsel identifiedboth Cordero and Campbell as being ‘charged in thiscase,’ and he urged jurors to carefully consider theirtestimony in light of an accomplice instruction that theywould receive from the court. While the prosecutorargued that these witnesses were credible, no referencewas made to whether either or both had any agreementregarding their impending sentencings. In its finalcharge to the jury, the court identified Cordero andCampbell as having provided accomplice testimony andinstructed the jury accordingly.’’ Id., 658–61.

The first certified question requires us to determinewhether the defendant was harmed by the prosecutor’sfailure to correct the potentially misleading testimonyof Cordero and Campbell.7 ‘‘The rules governing ourevaluation of a prosecutor’s failure to correct false ormisleading testimony are derived from those first setforth by the United States Supreme Court in Brady v.Maryland, 373 U.S. 83, 86–87, 83 S. Ct. 1194, 10 L. Ed.2d 215 (1963), and we begin our consideration of the[defendant’s] claim with a brief review of those princi-ples. In Brady, the court held that the suppression bythe prosecution of evidence favorable to an accusedupon request violates due process [when] the evidenceis material either to guilt or to punishment, irrespectiveof the good faith or bad faith of the [prosecutor]. . . .The United States Supreme Court also has recognizedthat [t]he jury’s estimate of the truthfulness and reliabil-ity of a . . . witness may well be determinative of guiltor innocence, and it is upon such subtle factors as thepossible interest of the witness in testifying falsely thata defendant’s life or liberty may depend. Napue v. Illi-nois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217(1959). Accordingly, the Brady rule applies not just toexculpatory evidence, but also to impeachment evi-dence . . . which, broadly defined, is evidence havingthe potential to alter the jury’s assessment of the credi-bility of a significant prosecution witness. . . .Because a plea agreement is likely to bear on the motiva-tion of a witness who has agreed to testify for the state,such agreements are potential impeachment evidencethat the state must disclose. . . .

‘‘[A] prosecutor’s failure to disclose favorable evi-dence will constitute a violation of Brady only if theevidence is found to be material. . . . In a classicBrady case . . . the evidence will be deemed materialonly if there would be a reasonable probability of adifferent result if the evidence had been disclosed. . . .

‘‘When, however, a prosecutor obtains a convictionwith evidence that he or she knows or should know tobe false, the materiality standard is significantly morefavorable to the defendant. [A] conviction obtained bythe knowing use of perjured testimony is fundamentallyunfair, and must be set aside if there is any reasonablelikelihood that the false testimony could have affectedthe judgment of the jury. . . . This standard . . .applies whether the state solicited the false testimonyor allowed it to go uncorrected . . . and is not substan-tively different from the test that permits the state toavoid having a conviction set aside, notwithstanding aviolation of constitutional magnitude, upon a showingthat the violation was harmless beyond a reasonabledoubt. . . . This strict standard of materiality is appro-priate in such cases not just because they involve prose-cutorial misconduct, but more importantly becausethey involve a corruption of the truth-seeking functionof the trial process. . . . In light of this corruptingeffect, and because the state’s use of false testimonyis fundamentally unfair, prejudice sufficient to satisfythe materiality standard is readily shown . . . suchthat reversal is virtually automatic . . . unless thestate’s case is so overwhelming that there is no reason-able likelihood that the false testimony could haveaffected the judgment of the jury. . . .

‘‘In accordance with these principles, our determina-tion of whether [the witness’] false testimony was mate-rial under Brady and its progeny requires a carefulreview of that testimony and its probable effect on thejury, weighed against the strength of the state’s caseand the extent to which [the defendant was] otherwiseable to impeach [the witness].’’ (Citations omitted;emphasis added; footnotes omitted; internal quotationmarks omitted.) Adams v. Commissioner of Correc-tion, 309 Conn. 359, 369–73, 71 A.3d 512 (2013).

Applying the foregoing principles to the present case,we conclude that the prosecutor’s failure to correct thepotentially misleading testimony of two witnesses didnot violate the defendant’s due process right to a fairtrial because, weighing the probable effect of that testi-mony against the defendant’s impeachment of thosewitnesses and the strength of the state’s case, there isno reasonable likelihood that the potentially misleadingtestimony could have affected the judgment of the jury.Examining first the strength of the state’s case, therewas overwhelming evidence of the defendant’s guilteven without the testimony of Cordero and Campbell.See, e.g., id., 388. Specifically, the state presented the

following evidence to the jury independent of Corderoand Campbell’s testimony. A male (perpetrator) dressedin a heavy black coat with a raised hood, camouflageski mask, dark jeans, and black gloves attempted toopen the locked door of the bank. State v. Jordan,supra, 135 Conn. App. 638. A police officer then chasedthe perpetrator from the bank to a nearby automobile,which was registered to the defendant, where the perpe-trator spoke with Cordero, the operator of the automo-bile. Id., 639. The automobile contained three cellphones, at least one of which belonged to the defendant.Id., 641. After speaking with Cordero, the perpetratorran down a nearby street, where three witnesses sawhim and later identified him as a black or Hispanic malewearing dark clothing. Id., 639. One witness saw theperpetrator remove a jacket with brightly colored liningand a gray sweatshirt, both of which were subsequentlyrecovered alongside other clothing items. Id., 639–40.State forensic laboratory DNA analysis revealed thatthe defendant ‘‘was included as a contributor in each[clothing] sample except one . . . [in which] the defen-dant could not be eliminated as a contributor.’’ Id.,643. While removing this clothing, the perpetrator ranthrough the woods, where it was raining and muddy.The police later found muddy, wet clothes in a motelroom occupied by the defendant’s family. When con-fronted by the police, the defendant attempted toescape by driving away from the motel and by hidingin a closet before his eventual arrest.

In sum, the state’s case did not depend on the testi-mony of Cordero and Campbell because the state pre-sented overwhelming evidence independent of thattestimony connecting the defendant to the crime. As aresult, we disagree with the defendant that the testi-mony of Cordero and Campbell was ‘‘vital’’ to the state’scase. The testimony of Cordero was, at best, only par-tially favorable to the state. Although Cordero testifiedthat the defendant was at a location near the bank atthe time of the crime, the rest of his testimony didnot further either party’s theory and, moreover, as theprosecutor asserted in his closing statement, ‘‘didn’tmake much sense when you put it under a microscope.’’8

Campbell provided more support for the state thanCordero, but much of her testimony was corroborativeof other evidence.9 The portions of her testimony thatwere not corroborated by other witnesses, such as thedefendant’s confession to her on the night of the crime,were also unnecessary to establish the defendant’s guiltbeyond a reasonable doubt in light of the substantialevidence connecting the defendant to the crime.

Turning to the question of whether defense counselwas able to impeach the witnesses’ testimony, we con-clude that the defendant had ample opportunity, and didin fact, impeach Cordero and Campbell.10 Both defensecounsel and the prosecutor discounted much of Cord-ero’s testimony in their closing statements, suggesting

that Cordero’s testimony ‘‘doesn’t make any sense’’ andimplying that he was more involved with the crimethan he had revealed. Regarding Campbell’s credibility,defense counsel emphasized in his cross-examinationthat she had initially been uncooperative with the policeand had told them that she knew nothing about theattempted robbery. She also testified that she had beenarrested for hindering prosecution on April 16, 2008,and made conflicting statements about whether she toldthe police about the defendant’s involvement before orafter her arrest. In his closing statement, defense coun-sel reiterated that Campbell had ‘‘changed her storytwice’’ and suggested that there might have been some‘‘consideration’’ for one of her statements in particularas she had added more information on the same daythat she was released from jail.

Defense counsel also challenged Campbell on a vari-ety of other grounds. For example, he questioned hertestimony that the defendant was ‘‘wet’’ when she spoketo him after midnight on April 1, 2008, insinuating thatit would not make sense for him to still be wet if theattempted robbery occurred eight hours earlier.Defense counsel suggested that it was strange for thedefendant and his family to have stayed at the samemotel as Campbell if, as she testified, the defendantbelieved that the police would be able to find Campbellvia the cell phone in his vehicle. Defense counsel alsoraised the fact that Campbell was an occasional druguser. In his closing argument, defense counsel empha-sized that Campbell had ‘‘much to gain in this case fromcoming here and testifying . . . .’’ Finally, the trialcourt provided the jury with instructions on accomplicetestimony, stating, in relevant part, that ‘‘[i]n weighingthe testimony of . . . Cordero and . . . Campbell,you should consider the fact that they are facing chargesas accomplices to the crimes charge[d] in this case.’’11

After evaluating the defendant’s opportunity toimpeach Cordero and Campbell within the context ofthe entire trial, we conclude that the state’s case wasso overwhelming that there was no reasonable likeli-hood that the potentially misleading testimony of Cord-ero and Campbell could have affected the judgment ofthe jury. Accordingly, we conclude that the AppellateCourt properly determined that the prosecutor’s failureto correct these witnesses’ testimony did not deprivethe defendant of a fair trial.

II

We next consider the defendant’s claim that this courtshould overrule its construction of § 53a-155 (a) in Statev. Foreshaw, supra, 214 Conn. 540, and hold that therewas insufficient evidence to support his conviction fortampering with physical evidence in violation of § 53a-155 (a). See footnote 2 of this opinion. The defendantclaims that the evidence tampering statute was notmeant to apply to situations in which an individual

discards evidence in an attempt to evade the police.On the basis of our review of the record, it is clear thatthe defendant seeks to overrule Foreshaw only becauseof his mistaken belief, shared by the Appellate Courtand based on a misunderstanding of this court’s holdingin Foreshaw, that he cannot prevail on his insufficiencyclaim unless we overrule Foreshaw. See State v. Jor-dan, supra, 135 Conn. App. 653 (‘‘as the defendantacknowledges in his brief, his success in this claimwould require us to overrule a Supreme Court decision,a task beyond [the Appellate Court’s] charter’’). To theextent that this court’s holding in Foreshaw is unclear,we take this opportunity to clarify it. We find no cogentreason or inescapable logic, however, that would com-pel us to overrule Foreshaw, and, accordingly, wedecline to do so. See, e.g., O’Connor v. O’Connor, 201Conn. 632, 639, 519 A.2d 13 (1986). Nonetheless, weagree with the defendant that, under a proper interpre-tation of § 53a-155 (a) and Foreshaw, there was insuffi-cient evidence in the present case to support hisconviction for tampering with physical evidence.Accordingly, we reverse in part the Appellate Court’sjudgment with respect to the defendant’s convictionunder § 53a-155.

We begin our analysis with the language of the statuteat issue. Section 53a-155 (a) provides in relevant partthat ‘‘[a] person is guilty of tampering with or fabricatingphysical evidence if, believing that an official proceed-ing is pending, or about to be instituted, he . . .[a]lters, destroys, conceals or removes any record, doc-ument or thing with purpose to impair its verity oravailability in such proceeding . . . .’’ (Emphasisadded.)12 The state therefore must establish that thedefendant (1) believed that an official proceeding waspending or about to be instituted, (2) discarded theevidence at issue, and (3) acted with the intent to pre-vent the use of the evidence at an official proceeding.Section 53a-155 (a) does not specify, however, whetherthe phrase ‘‘about to be instituted’’ connotes probabilityof occurrence or temporal proximity. It also does notestablish whether the ‘‘belief’’ is what a reasonable per-son would believe, or, rather, what the defendantbelieved.

The court answered these questions, albeit implicitly,in Foreshaw. In that case, the defendant, Bonnie JeanForeshaw, shot and killed the victim in front of severalwitnesses and fled the scene in her automobile. Statev. Foreshaw, supra, 214 Conn. 542–43. When a policeofficer arrested her shortly thereafter, the officer founda bullet in her vehicle consistent with the gun that hadbeen used to shoot the victim. Id., 543. When the policeasked Foreshaw where the gun was, Foreshawresponded that she ‘‘had thrown [it] out of the car win-dow.’’ Id. Foreshaw then ‘‘retraced her route with thepolice in an attempt to find the gun, but eventuallybecame confused and upset and discontinued her

search. The gun was never recovered.’’ Id. At trial, Fore-shaw testified that ‘‘[u]pon seeing [the victim] fall, [she]immediately drove away and discarded the gun en routeso that she would not be caught with it.’’ (Emphasisadded.) Id.

On appeal, Foreshaw challenged, inter alia, the suffi-ciency of the evidence supporting her conviction fortampering with physical evidence in violation of § 53a-155 (a) (1). Id., 549. Specifically, Foreshaw argued that‘‘because she discarded the gun prior to any contactwith law enforcement officers or the judicial system,she could not have believed an official proceeding was‘about to be instituted.’ ’’ Id., 550. Foreshaw contendedthat the language of § 53a-155 (a) ‘‘connotes temporalproximity between the alleged act and the official pro-ceeding.’’ Id., 550–51. Additionally, Foreshaw arguedthat ‘‘even if the state proved that she had acted withthe intent to make the gun unavailable to the police,such an intent would not warrant conviction under thelanguage of § 53a-155 (a) (1).’’ (Emphasis in original.) Id.

The court disagreed, concluding that, on the basis ofthe evidence presented by the state, the jury reasonablycould have concluded that Foreshaw was guilty of tam-pering with physical evidence beyond a reasonabledoubt. The state offered evidence that, inter alia, severalindividuals had witnessed Foreshaw shooting the victimand that Foreshaw admitted to discarding the gun ‘‘sothat she would not be caught with it.’’ Id., 543. Thecourt concluded that this evidence provided a sufficientbasis for the jury to have inferred the belief, the dis-card,13 and the intent elements of § 53a-155 (a). Id.,550–51. To the extent that the reasoning of Foreshawwas unclear, we take this opportunity to clarify it today.

With respect to the belief element, the jury reasonablycould have concluded that Foreshaw believed an offi-cial proceeding was ‘‘about to be instituted’’ based onthe fact that Foreshaw shot the victim in the presenceof numerous witnesses and anticipated being ‘‘caught’’by the police. Id., 543. Although Foreshaw had no priorcontact with the police before disposing of the gun,the court reasoned that § 53a-155 (a) does not requiretemporal proximity, but, rather, the statute ‘‘speaks tothat which is readily apt to come into existence or tobe contemplated . . . .’’ (Emphasis added.) Id., 551. Putanother way, § 53a-155 (a) applies, no matter what stagethe police have actually reached in their investigation,as long as the defendant believes that it is probable thatan official proceeding will arise. This interpretation isconsistent with the commentary to the Model PenalCode, from which our physical evidence tampering stat-ute was adapted,14 which provides that ‘‘the word ‘about’should be construed more in the sense of probabilitythan temporal relation.’’ (Emphasis added.) 2 A.L.I.,Model Penal Code and Commentaries (1980) § 241.7,comment 2, p. 178. It is also consistent with our interpre-

tation of an identical phrase in General Statutes § 53a-151 (a).15 See State v. Ortiz, 312 Conn. 551, 569, 93 A.3d1128 (2014) (‘‘[w]e conclude that ‘about to be instituted’signifies probability’’). Thus, the court determined thatthe jury reasonably could have concluded that Fore-shaw discarded the gun believing that an official pro-ceeding was probable because she shot the victim inview of several witnesses and testified that she ‘‘dis-carded the gun . . . so that she would not be caughtwith it.’’ State v. Foreshaw, supra, 214 Conn. 543.

With respect to the intent element, the jury reason-ably could have concluded that Foreshaw disposed ofthe gun with intent to prevent its use in an officialproceeding based on the same facts. The court notedthat the police play a ‘‘crucial role’’ in official proceed-ings. Id., 551. This crucial role often involves gatheringevidence, explaining that evidence to a jury, and testi-fying against the defendant. The court in Foreshaw rea-soned that acting with the intent to keep evidence fromthe police, who play a crucial role in official proceed-ings, may support an inference that a defendant intendsto prevent the availability of that evidence at an officialproceeding when the defendant believes such a pro-ceeding is probable. See id. Thus, the court determinedthat the jury reasonably could have concluded thatForeshaw, who admittedly discarded the gun so that shewould not be ‘‘caught with it’’ when police apprehendedher; id., 550; intended to prevent the use of the gun atthe official proceeding that she believed was about tobe instituted and, therefore, was guilty beyond a reason-able doubt of tampering with physical evidence. Id., 551.

In other words, because Foreshaw anticipated thatthe police would apprehend her on the basis of informa-tion connecting her to the shooting, she disposed ofthe gun believing that an official proceeding, and notjust an investigation, was pending or probable. Thejury thus reasonably could have inferred that Foreshawdiscarded the evidence to prevent its use against herin an official proceeding that she believed was probable.Conversely, had Foreshaw discarded the gun to preventdetection or to avoid being implicated in the shootingin the first instance, and thus believing that only aninvestigation, and not an official proceeding, was pend-ing or probable, the belief and intent elements under§ 53a-155 would be lacking.

The defendant contends that Foreshaw was wronglydecided because § 53a-155 does not contain the word‘‘investigation,’’ whereas the Model Penal Code physicalevidence tampering provision from which it wasadapted contains both ‘‘official proceeding’’ and ‘‘inves-tigation.’’16 See Model Penal Code and Commentaries,supra, § 241.7, p. 175. We agree with the defendant thatthe legislature restricted the scope of the tamperingwith physical evidence statute by omitting the word‘‘investigation.’’ We disagree with the defendant, how-

ever, that Foreshaw improperly extends liability underthe evidence tampering statute to conduct that the legis-lature deliberately excluded from the scope of § 53a-155.17

First, the omission of the word ‘‘investigation’’ from§ 53a-155 does not exclude all physical evidence dis-carded during the course of a police investigationbecause the application of the statute is not dependenton the point in time in which the defendant’s conductoccurs. Instead, the plain language of § 53a-155 indi-cates that it applies when the defendant believes thatan official proceeding probably will occur. See ModelPenal Code and Commentaries, supra, § 241.7, com-ment 2, p. 178 (‘‘[t]he prosecution must establish thatthe actor believed that an official proceeding or investi-gation was pending or about to be instituted but neednot prove that such was in fact the case’’ [emphasisadded]). A defendant certainly could believe that anofficial proceeding probably would occur while aninvestigation is pending. For instance, if the defendantis aware that the police have assembled a significantamount of evidence against him during an investigation,then it is logical that the defendant would also believethat an official proceeding against him is probable.

In fact, § 53a-155 must include at least some attemptsto discard evidence that occur during a police investiga-tion, because otherwise the phrase ‘‘about to be insti-tuted’’ in the statute would have no meaning. Forinstance, if we were to determine that § 53a-155excluded situations in which a defendant discarded evi-dence while a police investigation was underway, thestatute would apply only when an official proceedingwas ‘‘pending’’ and never when it was ‘‘about to beinstituted . . . .’’ Thus, although we emphasize that§ 53a-155 does not include all acts to dispose of evi-dence that occur during a police investigation, the stat-ute does include at least some of these acts.

Instead, the omission of the term ‘‘investigation’’ from§ 53a-155 excludes situations in which the defendantbelieves that only an investigation, but not an officialproceeding, is likely to take place. For instance, in ascenario in which an individual commits a crime withno witnesses, and he immediately thereafter discardsthe one piece of physical evidence connecting him tothe crime, the individual certainly could believe thatthe police would investigate the crime, but he wouldhave no reason to believe that an official proceedingwould likely occur because there would be no evidenceor witnesses upon which the police could rely to locateand arrest him. In contrast, when an individual knowsthat there is significant evidence connecting him to thecrime, a jury reasonably could infer that the individualbelieved that the investigation probably would progressinto an official proceeding.18 We emphasize, however,that it is not the existence of an investigation that is key

but, rather, whether the defendant believes an officialproceeding is pending or probable.

This analysis ensures that the focus of the inquiry ison the culpability of the actor, rather than on ‘‘externalfactors wholly unrelated to [the actor’s] purpose ofsubverting the administration of justice.’’ Model PenalCode and Commentaries, supra, § 241.7, comment 2, p.178. The Model Penal Code commentary aptly explainswhy culpability under the physical evidence tamperingstatute should not be dependent on the actual stage ofpolice involvement: ‘‘Prior laws against tampering withevidence often required that an official proceeding orinvestigation actually be pending or in fact be underconsideration by the public authorities. Formulationsof this sort sometimes made liability of the actor turnon external factors wholly unrelated to his purposeof subverting the administration of justice. The Model[Penal] Code provision, on the other hand, focusesdirectly on the culpability of the individual actor.’’(Footnote omitted.) Id.19

In summary, this court’s decision in Foreshaw is con-sistent with these principles because it held that a defen-dant may be found guilty of tampering with evidenceduring the course of a police investigation only whenthe defendant has destroyed or concealed evidence ofa crime and the circumstances would support a findingthat the defendant believed that an official proceeding,as defined in General Statutes § 53a-146 (1), wasabout to be instituted and intended to impair the avail-ability of the evidence at that proceeding. See Statev. Foreshaw, supra, 214 Conn. 551. Contrary to thedefendant’s contention in the present case, this courtdid not conclude in Foreshaw that a defendant maybe found guilty of tampering with evidence when thedefendant has destroyed or concealed evidence duringan investigation in order to avoid detection.

In light of the foregoing, we decline to overrule thiscourt’s prior construction of § 53a-155 in Foreshaw.Accordingly, we apply the holding in Foreshaw to thepresent case. See footnote 2 of this opinion. The defen-dant claims that his conviction must be reversedbecause there was no evidence that his intent at thetime he discarded the clothing and mask was to preventits use against him at a criminal trial that he believedprobable. The defendant contends that the only reason-able view of the evidence is that he discarded his cloth-ing and mask while being closely pursued by a policeofficer in order to prevent its use in an investigationso that he could escape detection and avoid arrest. Weagree with the defendant, and, therefore, we concludethat the Appellate Court improperly determined thatthe evidence was sufficient to support the convictionof tampering with physical evidence.

When evaluating whether there is sufficient evidenceto support a conviction, ‘‘[i]t is our function to review

the evidence and construe it as favorably as possiblewith a view toward sustaining the conviction, andthen [to] determine whether, in light of the evidence,the trier of fact could reasonably have reached theconclusion it did reach.’’ (Emphasis added; internal quo-tation marks omitted.) State v. Foreshaw, supra, 214Conn. 551. Indeed, it is axiomatic that ‘‘[t]his courtcannot substitute its own judgment for that of the juryif there is sufficient evidence to support the jury’s ver-dict.’’ (Internal quotation marks omitted.) State v.Green, 261 Conn. 653, 667, 804 A.2d 810 (2002).

In determining whether the jury reasonably couldhave concluded as it did, this court has stated: ‘‘[I]t isa function of the jury to draw whatever inferences fromthe evidence or facts established by the evidence itdeems to be reasonable and logical. . . . Because [t]heonly kind of an inference recognized by the law is areasonable one . . . any such inference cannot bebased on possibilities, surmise or conjecture. . . . If[the] correlation [between the facts and the conclusion]is sufficiently compelling, the inference is reasonable.But if the correlation between the facts and the conclu-sion is slight, or if a different conclusion is more closelycorrelated with the facts than the chosen conclusion,the inference is less reasonable. At some point, thelink between the facts and the conclusion becomes sotenuous that we call it speculation.’’ (Internal quotationmarks omitted.) Id., 667–68.

Applying these principles to the facts in the presentcase, the jury could not reasonably have concludedthat the defendant believed that an official proceedingagainst him was probable when he discarded the evi-dence. The record reveals that the defendant took offrunning when a police officer called out to him withinminutes of the attempted bank robbery. State v. Jordan,supra, 135 Conn. App. 638. Even if the defendantbelieved that the police officer had a description of thealleged bank robber’s clothing, there was no evidencethat the defendant believed that the police officer knewhis identity or had any other information connectinghim to the crime. In other words, at that point in time,the clothing was the only evidence linking the defendantto the attempted bank robbery. Therefore, it would beunreasonable for the jury to have inferred from the factthat the defendant absconded from the police officerthat the defendant believed that an official proceedingagainst him was probable.

The record also reveals that the police officer chasedthe defendant past a vehicle, driven by Cordero, thatwas registered to the defendant. Id., 639, 640. As thedefendant ran past the vehicle, he said to Cordero ‘‘meetme on the other street, meet me on the other street.’’(Internal quotation marks omitted.) Id., 639. The defen-dant’s attempt to enlist Cordero’s assistance as a get-away driver rather than tell Cordero to flee separately

not only underscores the defendant’s intent to avoiddetection, but also undermines any inference that hebelieved that the police would be able to trace thevehicle to him. Accordingly, this fact militates againstan inference that the defendant believed an official pro-ceeding against him was probable when he discardedthe clothing.

Even if we were to assume, however, that the juryreasonably could have inferred that the defendant knewthat the police officer saw him speak to Cordero, thejury would necessarily have to stack inferences basedon surmise to conclude that the defendant believedthat an official proceeding was probable. To reach thisconclusion, the jury had to infer that the defendantbelieved at the time he discarded the clothing thatpolice would apprehend the vehicle, use its contentsto ascertain the defendant’s identity, and successfullylocate and arrest him. Thus, the jury had to infer thatthe defendant realized when he discarded the clothingthat the police officer would describe the vehicle toassisting officers, and that the assisting officers wouldbe dispatched to the scene in time to locate and appre-hend the vehicle. Beyond that, the jury would have hadto infer that the defendant realized when he discardedthe clothing that the items contained in the vehicle,once in police custody, would lead police to Campbell.20

And finally, even if all of the foregoing inferences werereasonable, the jury still had to infer that the defendantbelieved, when he discarded the clothing, that Campbellwould help the police to locate and arrest thedefendant.21

Upon the facts favorably construed and the infer-ences reasonably drawn therefrom, we conclude thatthe evidence was not sufficient to support the defen-dant’s conviction for tampering with physical evidencein violation of § 53a-155. While we must not substituteour judgment for that of the jury, the reviewing courtmust determine whether the jury reasonably could haveconcluded as it did. In the present case, the jury hadto speculate to conclude that when the defendant dis-carded his ‘‘ ‘robber garb’ ’’ he believed it was probablethat he would be apprehended and arrested for theattempted bank robbery.

Instead, the only reasonable inference from the factsin the present case is that the defendant discarded hisclothing to prevent its use in an investigation in orderto escape detection and avoid being arrested by thepursuing police officer. There is no evidence that whenthe defendant discarded the clothing he believed thatthe police officer had any information, other than theclothing, linking him to the attempted bank robbery.Thus, the defendant discarded the only piece of evi-dence connecting him to the crime in order to thwarta police investigation that was actively underway.Although the defendant may well have been uncertain

that he would escape detection and avoid arrest, a mereapprehension of being caught does not rise to the levelof a subjective belief that an official proceeding is aboutto be instituted. Indeed, if believing that an officialproceeding might occur were sufficient under § 53a-155, then conceivably every defendant who discardsevidence knowing that a police investigation is under-way could be found guilty of evidence tampering, sinceknowledge of an investigation almost invariably givesrise to apprehension that the investigation might prog-ress to an official proceeding. Certainly, the legislaturedid not intend for the evidence tampering statute tosweep so broadly.

Finally, although we recognize that in certaininstances a defendant’s intent to keep evidence fromthe police may support a reasonable inference that thedefendant also intends to keep evidence from beingused in an official proceeding, the defendant mustbelieve that an official proceeding is probable. The factsin the present case do not support a reasonable infer-ence that, at the time the defendant discarded the cloth-ing, he believed that an official proceeding wasprobable. Therefore, we conclude that there was insuffi-cient evidence to support the defendant’s convictionof tampering with physical evidence under § 53a-155.Accordingly, we reverse the judgment of the AppellateCourt with respect to the defendant’s conviction under§ 53a-155.

The judgment of the Appellate Court is reversed onlywith respect to the charge of tampering with physicalevidence and the case is remanded to that court withdirection to remand the case to the trial court withdirection to render judgment of not guilty on thatcharge; the judgment is affirmed in all other respects.

In this opinion McDONALD and ROBINSON, Js., con-curred, and ESPINOSA, J., concurred in the result.

1 General Statutes § 53a-155 (a) provides: ‘‘A person is guilty of tamperingwith or fabricating physical evidence if, believing that an official proceedingis pending, or about to be instituted, he: (1) Alters, destroys, conceals orremoves any record, document or thing with purpose to impair its verityor availability in such proceeding; or (2) makes, presents or uses any record,document or thing knowing it to be false and with purpose to mislead apublic servant who is or may be engaged in such official proceeding.’’

2 We granted the defendant’s petition for certification to appeal limitedto the following questions: (1) ‘‘Did the Appellate Court properly concludethat the prosecutor’s failure to correct the misleading testimony of HermanCordero and Jennifer Campbell did not deprive the defendant of his dueprocess right to a fair trial?’’; and (2) ‘‘Should this court overrule its construc-tion of . . . § 53a-155 in State v. Foreshaw, [supra, 214 Conn. 540]?’’ Statev. Jordan, 305 Conn. 918, 47 A.3d 388 (2012).

Although the second certified question was limited to whether this courtshould overrule its construction of § 53a-155 in Foreshaw, it is implicit in thisquestion that the defendant is claiming that, under a proper interpretation of§ 53a-155, his conduct did not violate that statute. Accordingly, we alsoconsider whether there was sufficient evidence to support the defendant’sconviction under § 53a-155 as properly interpreted.

3 The defendant also made the following three claims: (1) the trial courtabused its discretion when it admitted evidence of prior misconduct for thelimited purpose of proving the defendant’s criminal intent; State v. Jordan,supra, 135 Conn. App. 644; (2) his due process rights were violated because

the state failed to prove that he intended to use or threatened to use forcewhile committing a larceny; id., 654; and (3) the state did not comply withGeneral Statutes § 54-64e (b) (4), which provides that a defendant shallreceive notice that any crime committed while on release may be subjectto enhanced penalties. Id., 668–69. The Appellate Court rejected each ofthese claims; id., 652, 658, 669; and the defendant has not challenged theserulings in this certified appeal.

4 In reaching this conclusion, the Appellate Court relied on the factorsset forth in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). Onappeal, both parties agree that, if there is a violation of the standard setforth in Napue v. Illinois, 360 U.S. 264, 269–71, 79 S. Ct. 1173, 3 L. Ed. 2d1217 (1959), which requires that a prosecutor apprise the court when he orshe knows a witness is giving substantially misleading testimony, then thiscourt should apply the Napue standard in assessing whether there was harm.

5 The state concedes in its brief that there is ‘‘no dispute’’ that the relevanttestimony in the present case was ‘‘potentially misleading . . . .’’

6 The state also raises two alternative grounds for affirmance: (1) thedefendant waived his due process claim because he failed to confront Cord-ero and Campbell with their allegedly false statements at trial; and (2)the Appellate Court improperly concluded that the prosecutor violated thestandard set forth in Napue v. Illinois, 360 U.S. 264, 269–71, 79 S. Ct. 1173,3 L. Ed. 2d 1217 (1959). As we explain in footnote 10 of this opinion, wedo not reach these alternative grounds for affirmance because we agreewith the state on the certified question.

7 The Appellate Court determined that while the prosecutor’s failure tocorrect the misleading testimony was improper, the prosecutor’s improprie-ties were harmless. State v. Jordan, supra, 135 Conn. App. 667. The defendantsought certification on the harmless issue and the state seeks, as an alterna-tive ground for affirmance, a determination that the Appellate Court improp-erly found prosecutorial improprieties. We agree with the Appellate Courtthat the alleged improprieties were harmless and thus need not reach thealternative grounds for affirmance. Nevertheless, nothing in this opinionshould be construed to suggest that we concur in the Appellate Court’sdetermination that improprieties occurred.

8 Specifically, Cordero testified that he dropped the defendant off in theparking lot of LaBonne’s Supermarket in Watertown, and that the defendantwas wearing black jeans and a black jacket but not a face mask, gloves, ora ‘‘hoodie.’’ Cordero stated that he waited for ten to fifteen minutes, decidedto drive to his house to get some tools to work on the defendant’s car,pulled into a cul-de-sac located approximately ‘‘a couple hundred feet awayfrom the parking lot,’’ and then decided to turn back so that the defendantwould not think he had stolen the car. On his way back, Cordero assertedthat he saw a police officer running up the road toward him, but that hehad no contact with the defendant at this time.

9 For instance, there is independent testimony and evidence that the perpe-trator had run through a muddy, swampy wooded area and that wet, muddyclothes were found in the motel room in which the defendant’s family wasstaying. In addition, although only Cordero and Campbell testified that thedefendant and Cordero were acquainted, it is uncontested that Cordero wasin a vehicle registered to the defendant at the time of the crime. Therefore, theexistence of a friendship is not necessarily relevant. Moreover, Campbell’stestimony that the defendant had urged her to drive away upon seeing policeofficers outside the motel was duplicative of Detective McKnight’s testimonyrecounting this same event.

10 We emphasize that the opportunity to impeach is not outcome determi-native but, rather, should be evaluated within the context of the strengthof the state’s case. For instance, in Adams v. Commissioner of Correction,supra, 309 Conn. 386, the court concluded that, when a witness’ testimonywas crucial to the state’s case, the fact that defense counsel was able toimpeach the witness ‘‘was not a substitute for cross-examination about therelationship that in fact existed between the leniency that he had beenpromised and his testimony on behalf of the state.’’ In the present case,however, the state’s case was not dependent on the credibility of Corderoor Campbell because there was significant additional testimony and physicalevidence of the defendant’s guilt. Accordingly, the fact that defense counselwas able to impeach Cordero and Campbell bolsters our conclusion thatthe defendant was not harmed by the prosecutor’s failure to correct their tes-timony.

11 The defendant points out that the prosecutor used Campbell’s testimonyto his benefit during closing argument, relying on Jenkins v. Artuz, 294

F.3d 284 (2d Cir. 2002). For instance, the prosecutor consistently emphasizedthat Campbell’s testimony ‘‘matche[d] up perfectly’’ with other evidence andthat this consistency ‘‘bolsters her credibility in other regards . . .[because] [i]f you can rely on the details she gives about those things, youcan rely on the details she gives about everything.’’ As we previously haveexplained, the strength of the state’s case and defense counsel’s impeach-ment of Campbell render these statements ultimately harmless. The testi-mony of all the witnesses who saw the perpetrator and described his clothing,the DNA evidence on that clothing, the wet and muddy clothing found inthe motel room of the defendant’s family, and the defendant’s subsequentevasive actions all provide strong evidence of his guilt. In contrast, in Jen-kins, the witness at issue ‘‘provided the only evidence of motive’’ and wasone of only two witnesses ‘‘specifically link[ing]’’ the defendant to the crime.Jenkins v. Artuz, supra, 295. Further, ‘‘the remaining testimony [for thestate] was weak or problematic.’’ Id.

12 General Statutes § 53a-146 (1) defines ‘‘ ‘official proceeding’ ’’ as ‘‘anyproceeding held or which may be held before any legislative, judicial, admin-istrative or other agency or official authorized to take evidence under oath,including any referee, hearing examiner, commissioner or notary or otherperson taking evidence in connection with any proceeding.’’

General Statutes 53a-146 (8) defines ‘‘ ‘[p]hysical evidence’ ’’ as ‘‘any arti-cle, object, document, record or other thing of physical substance which isor is about to be produced or used as evidence in an official proceeding.’’

13 Foreshaw admitted to having disposed of the gun in her statements tothe police and in her testimony, and, thus, the discard element was not atissue. See State v. Foreshaw, supra, 214 Conn. 543.

14 Section 53a-155 was enacted as part of ‘‘a comprehensive revision ofthe criminal code that was approved by the legislature in 1969.’’ State v.Salamon, 287 Conn. 509, 541, 949 A.2d 1092 (2008). This statute, amongstmany others in the criminal code, was adopted from the Model Penal Code.

The Model Penal Code provides in relevant part: ‘‘A person commits amisdemeanor if, believing that an official proceeding or investigation ispending or about to be instituted, he:

‘‘(1) alters, destroys, conceals, or removes any record, document or thingwith purpose to impair its verity or availability in such proceeding or investi-gation . . . .’’ 2 A.L.I., Model Penal Code and Commentaries (1980) § 241.7,p. 175.

15 General Statutes § 53a-151 (a) provides: ‘‘A person is guilty of tamperingwith a witness if, believing that an official proceeding is pending or aboutto be instituted, he induces or attempts to induce a witness to testify falsely,withhold testimony, elude legal process summoning him to testify or absenthimself from any official proceeding.’’ (Emphasis added.)

16 See footnote 14 of this opinion.17 The defendant also relies on several decisions from other states in

support of his claim that Foreshaw was improperly decided. We are hesitantto adhere to the logic of those decisions, however, as most states’ tamperingwith physical evidence statutes are different from our own. See Model PenalCode and Commentary, supra, § 241.7, comment 1, p. 177 (summarizingdifferences between tampering with physical evidence statutes). We doobserve, however, that most states that have omitted ‘‘investigation’’ fromtheir statutes have interpreted their statutes in a manner consistent withForeshaw. See Frayer v. People, 684 P.2d 927, 928, 929 (Colo. 1984) (conclud-ing that defendant was guilty of tampering with physical evidence whenshe threw and broke bottle containing narcotic cough syrup while strugglingwith police); Commonwealth v. Henderson, 85 S.W.3d 618, 620 (Ky. 2002)(concluding that defendant was guilty of tampering with physical evidencewhen he put money from stolen purse in insole of his shoe while beingchased by police); People v. Wilkins, 111 App. Div. 3d 451, 974 N.Y.S.2d 419(2013) (concluding that defendant was guilty of tampering with physicalevidence when defendant discarded ‘‘small ziploc bags’’ while fleeing frompolice after drug transaction).

18 Justice Zarella disagrees with our implementation of Foreshaw, andwould conclude that § 53a-155 does not require the state to present proofof the defendant’s prior knowledge of evidence directly connecting him tothe crime. We are unable to perceive, however, why a defendant who hadno such knowledge would ever ‘‘[believe] that an official proceeding ispending, or about to be instituted,’’ as required by § 53a-155.

19 We also note that this interpretation is consistent with this court’sinterpretation of a similar statute, § 53a-151, which prevents tampering withwitnesses. See State v. Ortiz, supra, 312 Conn. 568–70; State v. Cavallo, 200

Conn. 664, 668–69, 513 A.2d 646 (1986).20 Campbell testified at trial that on the evening of the attempted robbery,

the defendant expressed concerns to her that the police would ‘‘connecthim and her together because his iPhone, left in the car, contained her firstand last name in its directory.’’ State v. Jordan, supra, 135 Conn. App. 641.This testimony, however, does not support a reasonable inference thatthe defendant believed that an official proceeding was probable when hediscarded the clothing.

The focus of the inquiry for purposes of the evidence is on the defendant’ssubjective belief and intent at the time he discarded the clothing. The factthat the defendant may have believed hours after the challenged discardconduct that police might be able to identify and locate him does not informthe question of whether he believed that an official proceeding was probablewhen he discarded the clothing.

21 Justice Zarella believes that Campbell’s testimony that the defendanthad told her that he believed that the police officer who was chasing himassumed that he was the person who had attempted to enter the bank isindicative of the defendant’s guilt. We disagree. The evidence supports aconclusion that, while the defendant was still wearing the clothes that linkedhim to the commission of the crime, Officer McKirryher pursued him untilhe entered a wooded area. Thus, the most reasonable explanation for thedefendant’s subsequent removal and discarding of the clothes, which JusticeZarella himself characterizes as ‘‘highly identifiable,’’ was that he did so inthe hope that, if the police ultimately apprehended him, they would beunable to identify him as the person who had been wearing the clothes.

Justice Zarella also contends that the fact that the defendant spoke toCordero while running from McKirryher constitutes evidence that he knewthat the police had evidence connecting him to the attempted bank robbery.Thus, Justice Zarella contends that the defendant deliberately engaged inconduct—speaking to Cordero—that he knew would likely result in hisidentification as the perpetrator. Again, we disagree. It is far more likelythat the defendant spoke to Cordero in the belief that the police officerwho was pursuing him at a distance would not notice the brief exchange.Moreover, it would be entirely speculative to conclude that the defendantdiscarded his clothes mere moments after speaking to Cordero because hebelieved that Cordero had been caught and had identified him.

Finally, Justice Zarella is left with the argument that the jury reasonablycould have found that the defendant believed that he would be identifiedand arrested for the attempted bank robbery because, instead of simplythrowing the items of clothing to the ground, he hid them. Again, however,it would be entirely speculative to conclude that the defendant intentionally‘‘hid’’ the clothes in a trash can and in the Desantises’ carport, instead ofsimply discarding them there. Indeed, the record does not establish that itwas the defendant who placed the jacket in the trash can where it wasfound two days after the defendant discarded it. It is entirely possible thatsomeone in the neighborhood found the discarded jacket and placed it there.

With respect to the evidence of the defendant’s conduct after he discardedthe clothing, we acknowledge that the evidence showing that he did not gohome, but stayed at a motel under an assumed name would support aconclusion that, by that time, approximately four hours after the attemptedrobbery, the defendant’s inability to reach Cordero by telephone had givenrise to a concern that the police had identified him as the perpetrator. Thefact that the defendant was concerned that Cordero may have been stoppedby the police at that time does not support a reasonable inference, however,that he had such a concern mere minutes after speaking to Cordero.