State Of Conn. v. Fluker., No. 30638.
| Decision Date | 24 August 2010 |
| Docket Number | No. 30638. |
| Citation | 123 Conn.App. 355,1 A.3d 1216 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Tavorus L. FLUKER. |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Heather M. Wood, deputy assistant public defender, for the appellant (defendant).
Michael L. Regan, state's attorney, for the appellee (state).
DiPENTIMA, C.J., and ALVORD and FOTI, Js.
The defendant, Tavorus L. Fluker, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49(a)(2) and 53a-54a(a), assault in the first degree in violation of General Statutes § 53a-59(a)(5) and criminal possession of a firearm in violation General Statutes § 53a-217(a)(1). On appeal, the defendant claims that (1) the state violated the constitutional prohibition against presenting evidence of his post- Miranda 1 silence in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and (2) the prosecutor committed prosecutorial impropriety by deliberately disregarding a court order regarding the admissibility of certain evidence involving police efforts to locate the defendant. We disagree and, accordingly, affirm the judgment of the trial court.
The following procedural history and facts, which the jury reasonably could have found, are relevant to the appeal. On the evening of February 9, 2007, the victim, Lewis Camby III, went to Sully's Cafe', a tavern in Groton. Shortly after arriving, he encountered the defendant. After exchanging greetings, the defendant asked the victim, “what's up with that $300 that you owe Danette [Robinson].” 2 After a brief discussion, the two men decided that neither of them wanted to make an issue over the debt owed to Robinson. Subsequent to this conversation, the victim continued socializing within the bar and observed the defendant leave through a door located in the poolroom. Upset that the defendant had interfered in his personal business, the victim called Robinson to ask why the defendant was inquiring about the money that he owed her. A short time later, the victim encountered the defendant again. This time, the defendant appeared in the poolroom near a door, which exited into the parking lot. During this encounter, after motioning to the victim to come over to where he was standing, the defendant grabbed his arm, put a pistol under his chin and said, “I kill [people] like you.” Both men then proceeded toward the door in the poolroom which led into the parking lot. As the defendant exited, the victim remained close to the doorway, and the two men began to argue about the recent altercation. At this point, the defendant raised his arm and shot the victim in the chest with a large caliber automatic weapon.
Soon after the shooting, officers from the Groton town police department were dispatched to Sully's Cafe'. Upon arriving, Sergeant Jeffrey Scribner entered the tavern and observed the victim being held up by two patrons leaning against the bar. Scribner noticed “a bloody hole in the upper left chest area and in the clothing” of the victim where he had been shot. 3 Despite being very emotional, the victim was alert enough to inform Scribner that he had been shot by “Tavorus.” 4 When Scribner investigated further concerning the identity of the shooter, the victim told him that Tavorus was “Lamar's brother.” Being familiar with Tavorus and Lamar, Scribner concluded that the defendant was the shooter. Police began a canvass of the crime scene and found a .45 caliber shell casing in the parking lot immediately outside a side door of the bar that led to the poolroom.
Shortly afterward, medical personnel arrived, stabilized the victim and transported him to William W. Backus Hospital. Officer Christopher Hoffman of the Groton town police department accompanied the victim in the ambulance and stayed with him at the hospital until he was flown by Life Star helicopter to Hartford Hospital. While waiting to be transported, the victim, once again, identified the defendant as the person who had shot him. The victim told Hoffman that the defendant shot him over an outstanding debt that he owed to a mutual friend. Following the victim's identification of the defendant as the person who had shot him, the police began looking for the defendant. 5
The next morning, the defendant left Connecticut and drove to Philadelphia, Pennsylvania. He eventually went to Arkansas. At no time following the shooting did the defendant tell anyone he was leaving town or where he was going. 6 That same morning, a warrant was issued for the arrest of the defendant in connection with the shooting. As part of their investigation, police contacted other area police departments and the United States Marshals Service for assistance in locating the defendant. Police also informed the New London Day newspaper (Day) that a warrant had been issued. Subsequently, the Day published an article concerning the defendant and the shooting.
The defendant was arrested in Arkansas on July 11, 2008. He then was transported to Newburgh, New York, by the United States Marshals Service and taken into custody by Detectives Robert Emery and Kevin Curtis of the Groton town police department. Once the defendant was secured in the transport vehicle, Curtis advised him of his Miranda rights. 7 Subsequently, Emery asked the defendant “if he wanted to talk about the case.” Emery testified that After Emery asked the defendant to supply the names of his alibi witnesses, the defendant responded, “no, that's all right.”
Ultimately, the defendant was charged in a three count substitute information with attempt to commit murder, assault in the first degree and criminal possession of a firearm. The jury found the defendant guilty on all charges. The court sentenced him to a total effective term of twenty-five years incarceration. This appeal followed. Additional facts and procedural history will be set forth as necessary.
The defendant first claims that the state violated the constitutional prohibition against presenting evidence of his post- Miranda silence in violation of Doyle v. Ohio, supra, 426 U.S. at 610, 96 S.Ct. 2240. Specifically, the defendant claims that his right to a fair trial was violated because the state impermissibly elicited testimony during its direct examination of Emery that the defendant refused to answer the officers' questions after receiving his Miranda warnings. In addition, the defendant claims that the state impermissibly referenced this testimony, concerning his post- Miranda silence, during its closing argument. We disagree.
The following additional facts are relevant to our review of the defendant's claim. On direct examination, Emery described the events that transpired after the defendant was taken into custody and advised of his right to remain silent. The following exchange between Michael L. Regan, the state's attorney, and Emery occurred at trial:
The defendant did not object to this exchange. During cross-examination, defense counsel furthered this line of questioning by asking Emery whether the defendant ever told him that he would give the names of his alleged alibi witnesses to his attorney. Emery testified, “No, I don't recall [whether] he said that.” During closing argument to the jury, the prosecutor recounted the defendant's testimony at trial, stating, “[a]lso, you remember [that the defendant] testified [that] when he turned himself in that he had [those alibi] witnesses, but he never gave the police the names of [those] witnesses.” 8 The defendant claims that the prosecutor's “reference to [the defendant's] invocation of his right to silence only served to stress ... Emery's impermissible testimony” and harmed the defendant, given that the state did not have a strong case against the defendant, despite the eyewitness testimony provided by the victim.
At the outset, we set forth the standard of review. Because the defendant did not object to the testimony, the issue is unpreserved, and he now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
Under the well established principles of Golding, a defendant (Emphasis in original.) Id.
On the basis of our review of the record, we conclude that the defendant has met the first two prongs of Golding. 9 See State v. Camacho, 92 Conn.App. 271, 279, 884 A.2d 1038 (2005), cert. denied, 276 Conn. 935, 891 A.2d 1 (2006). His claim,...
To continue reading
Request your trial
-
State v. Morales
...silence to be used to impeach an explanation subsequently offered at trial.” (Internal quotation marks omitted.) State v. Fluker, 123 Conn.App. 355, 364–65, 1 A.3d 1216, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010). “Our Supreme Court has reasoned that it is also fundamentally unfair and ......
- State Of Conn. v. Reid.
-
Rogers v. State
...question during a custodial interrogation is not an invocation of the right to remain silent.’ [Cits.]” State v. Fluker, 123 Conn.App. 355, 1 A.3d 1216, 1223(I) (2010). “This is not a case in which testimony showed [Appellant] refused to give a statement or specifically invoked his right to......
-
Crocker v. Comm'r of Correction, 30786.
...We agree. "It is axiomatic ... that Doyle is not applicable when a defendant has waived his right to remain silent." State v. Fluker, 123 Conn.App. 355, 366, 1 A.3d 1216, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010). "While a defendant may invoke his right to remain silent at any time,eve......