504 A.2d 480 (Conn. 1986), State v. Leecan

Citation:504 A.2d 480, 198 Conn. 517
Opinion Judge:SHEA, J.
Party Name:STATE of Connecticut v. Christopher LEECAN.
Attorney:Richard Emanuel, Sp. Public Defender, for appellant (defendant)., Judith Rossi, Sp. Asst. State's Atty., with whom were Julia D. Dewey, Asst. State's Atty., and, on brief, Arnold Markle, State's Atty., for appellee (state). Richard Emanuel, special public defender, for the appellant (defendant)....
Judge Panel:In this opinion the other judges concurred. Before PETERS, CJ, and SHEA, SANTANIELLO, CALLAHAN and HENNESSEY
Case Date:February 04, 1986
Court:Supreme Court of Connecticut
 
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504 A.2d 480 (Conn. 1986)

198 Conn. 517

STATE of Connecticut

v.

Christopher LEECAN.

Supreme Court of Connecticut.

February 4, 1986

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Argued Nov. 6, 1985.

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Richard Emanuel, Sp. Public Defender, for appellant (defendant).

Judith Rossi, Sp. Asst. State's Atty., with whom were Julia D. Dewey, Asst. State's Atty., and, on brief, Arnold Markle, State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, SANTANIELLO, CALLAHAN and HENNESSEY, JJ.

[198 Conn. 518] SHEA, Associate Justice.

The defendant was convicted after a jury trial of felony murder in violation of General Statutes § 53a-54c. In his appeal from the judgment the defendant claims error (1) in the admission of evidence of his pre-arrest and postarrest silence with respect to the murder accusation; (2) in the admission of evidence of (a) threats claimed to have been made by the defendant against a witness for the state, (b) the existence of outstanding arrest warrants against the defendant for unrelated crimes, and (c) his arrests for prior felonies; (3) in charging the jury on felony murder without mentioning the affirmative defenses to that crime set forth in § 53a-54c as well as in explaining what is meant by a reasonable doubt; and (4) in the ineffective assistance rendered at trial by defense counsel. 1 We find no error.

[198 Conn. 519] This defendant was convicted of the felony murder of the same person, Raymond Lovell, who was the victim of the crime in State v. Spencer, 198 Conn. 506, 503 A.2d 1165 (1986), wherein this court affirmed the conviction of Theresa Spencer at a separate trial as a participant in the same offense of

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felony murder. The facts, set forth in greater detail in that opinion, may be briefly summarized for the purpose of this appeal.

The jury could reasonably have found from the evidence that on December 11, 1980, Raymond Lovell was found dead in his room at the Holiday Inn in New Haven. He had been bound with handcuffs and a cord, gagged, his head covered with a pillow case, and beaten on the head with a blunt object, causing injuries that resulted in his death.

On December 8, 1980, three days Before Lovell's body was discovered, the defendant had driven to New Haven from Philadelphia, accompanied by Lawrence Nowlin and Theresa Spencer. The defendant brought with him a set of handcuffs, a metal pipe and a handgun. Nowlin and Spencer testified in behalf of the state at the defendant's trial and provided most of the evidence of his involvement in the crime.

The trio spent the night of December 8 in New Haven at the home of an acquaintance of Spencer. They had initially intended to rob this person, but later abandoned the plan. On December 9, Spencer contacted Lovell, the victim, whom she had met previously while working for a magazine sales organization that also employed him. She spent that night with Lovell in his motel room.

The next day, December 10, she rejoined Nowlin and the defendant at the motel where they were then staying. The defendant, with Nowlin and Spencer, drove to the Holiday Inn where Lovell was staying. Lovell [198 Conn. 520] did not return to the motel until the late afternoon, at which time he spoke with Spencer about her returning to his room that evening.

The defendant, observing that Lovell wore expensive clothing and jewelry and drove a Cadillac, expressed his intention of robbing Lovell with the assistance of Nowlin and Spencer. The trio returned to the Holiday Inn at about 8 p.m. that evening. Spencer entered Lovell's room while Nowlin and the defendant remained in the car. After some period of time, Nowlin knocked on the door of the room and Spencer let him and the defendant into the room. The defendant used the bathroom and, when he emerged, he held a handgun. He demanded that Lovell give him his money and his drugs. Lovell was bound, gagged and blindfolded by placing a pillow case over his head. The defendant then struck Lovell several times on the head with an iron pipe. Assisted by Nowlin and Spencer, the defendant searched the room and removed some of Lovell's jewelry and clothing, which they placed in the trunk of the defendant's car. One of his accomplices drove Lovell's Cadillac and followed the defendant, who was driving his own car. After it had been searched, the Cadillac was abandoned on the Merritt Parkway. The trio then returned to Philadelphia.

The defendant testified at trial in support of his alibi defense that, at the time when the crime was committed, he was waiting for Nowlin and Spencer at a bar located near the motel where Lovell resided. He said that they had used his car to pick up some possessions of Spencer at the motel and that, when they returned, the trio drove back to Philadelphia. He also testified that, at the time he learned of the murder several weeks later, when the trio was in North Carolina, both Spencer and Nowlin made statements indicating their involvement in the robbery and murder of Lovell.

[198 Conn. 521] I

The defendant claims that certain questions put to him on cross-examination to show that his alibi was of recent contrivance and to attack his credibility violated his constitutional right to remain silent under the strictures of Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S.Ct. 2240, 2243-44, 49 L.Ed.2d 91 (1976). Doyle held that postarrest silence is "insolubly ambiguous" because it may have been nothing more than the exercise by an arrestee of his right to remain silent in the wake of the customary

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warning of his rights given at the time of his arrest pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694 (1966). Long Before these decisions this court had reached a similar conclusion, on nonconstitutional grounds, that evidence of silence when an accused is in custody is inadmissible. State v. Ferrone, 97 Conn. 258, 266, 116 A. 336 (1922). Under such circumstances, "our law accords him the right to reply to question or statement, or to remain silent. His silence under such circumstances cannot be laid in evidence against him." Id; see State v. Morrill, 197 Conn. 507, 535-36, 498 A.2d 76 (1985); State v. Cook, 174 Conn. 73, 76, 381 A.2d 563 (1977).

A

The defendant seeks to extend the prohibition against evidence of postarrest silence of an accused to the period prior to his arrest. He acknowledges that such a claim, when based upon federal constitutional provisions guaranteeing the right of an accused to remain silent and to due process of law, has been rejected. Jenkins v. Anderson, 447 U.S. 231, 235, 100 S.Ct. 2124, 2127, 65 L.Ed.2d 86 (1980); Raffel v. United States, 271 U.S. 494, 496-97, 46 S.Ct. 566, 567, 70 L.Ed. 1054 (1926). He maintains, however, that analogous provisions[198 Conn. 522] of our state constitution, article first, § 8, 2 should be construed to afford greater protection to these rights of an accused than the federal constitution has provided. The defendant points to no history relating to our state constitution nor to any significant differences from their federal counterparts in the language of the state constitutional provisions relied upon that might warrant a different interpretation. Although this court recognized under principles of the law of evidence the ambiguity inherent in the postarrest silence of an accused long Before the advent of Miranda warnings, which add a further dimension of unfairness to its use by the prosecution, we have, nevertheless, followed the general principle that pre-arrest silence under circumstances where one would naturally be expected to speak may be used either as an admission or for impeachment purposes. McCormick, Evidence (3d Ed.) §§ 160, 270. "When a statement, accusatory in nature, made in the presence and hearing of an accused, is not denied or explained by him, it may be received into evidence as an admission on his part." State v. Cook, supra, 174 Conn. 76, 381 A.2d 568; State v. Yochelman, 107 Conn. 148, 152, 139 A. 632 (1927). The circumstances, of course, must be such that a reply would naturally be called for even in the prearrest setting. State v. Vitale, 197 Conn. 396, 405-406, [198 Conn. 523] 497 A.2d 956 (1985). "Although evidence of silence in the face of an accusation may be admissible under the ancient maxim that 'silence gives consent' the inference of assent may be made only when no other explanation is consistent with silence." State v. Harris, 182 Conn. 220, 229, 438 A.2d 38 (1980). We can perceive no violation of any constitutional right, state or federal, in our continued adherence to these rules.

The additional claim of the defendant, that evidence of his pre-arrest silence was introduced without satisfying the evidentiary

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standards for admissibility requiring proof of circumstances naturally calling for him to speak, does not involve a claimed violation of any constitutional right. The failure of the defendant to raise any objection in the trial court to the prosecutor's inquiries on this subject precludes appellate review. Practice Book § 288. We are not convinced that we should invoke our authority to notice "plain error" in accordance with Practice Book § 3063, because, if objection had been raised, the state would have had an opportunity to supplement the foundation shown by the present record for the admission of such evidence.

B

The first claimed violation of the defendant's right of postarrest silence as delineated in Doyle v. Ohio, supra, relates to his responses on cross-examination to questions concerning his failure to inform the police at the time he "turned himself in" that the car that had been observed at the Holiday Inn in New Haven at the time of the murder was owned by him rather than his uncle, in whose name it had been registered. In presenting its case the state...

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