State v. Alston

• Decision Date: 11 January 2005
• Docket Number: (SC 16910).
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. IRA ALSTON.

272 Conn. 432

862 A.2d 817

STATE OF CONNECTICUT v. IRA ALSTON.

(SC 16910).

Supreme Court of Connecticut.

Argued October 21, 2004.

Officially released January 11, 2005.

Norcott, Katz, Vertefeuille, Zarella and Scheinblum, Js.

Damon Kirschbaum, with whom, on the brief, were Felix Esposito and Jennifer Vickery, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were Michael Dearington, state's attorney, and, on the brief, John Waddock, supervisory assistant state's attorney, for the appellee (state).

Opinion

NORCOTT, J.

The defendant, Ira Alston, was convicted, after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a, and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The trial court sentenced the defendant to a total effective term of thirty-five years imprisonment. The defendant appealed from the trial court's judgment to this court pursuant to General Statutes § 51-199 (b) (3).¹ On appeal, the defendant claims that the state violated his federal constitutional right to remain silent following his receipt of Miranda² warnings by making references to his invocation of that right during testimony at trial, as well as during closing arguments, in violation of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). The defendant also claims that the trial court improperly: (1) instructed the jury regarding consciousness of guilt and burden of proof; (2) failed to conduct a substantive inquiry into an allegation of juror misconduct; and (3) violated General Statutes § 54-82h when it replaced an excused juror with the next alternate juror selected. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 8, 1999, the defendant was standing in the hallway of his apartment complex on the corner of Sherman Avenue and Elm Street in New Haven when Bobby Bloodworth, a fellow high school student, stopped by to visit Sohanna Early, a friend who lived in the complex. When Bloodworth emerged from Early's apartment, he saw the defendant in the courtyard and talked to him briefly before leaving. As Bloodworth walked away from the courtyard, he saw two men approach on foot and a red car pull up to the curb. Anthony Tolliver, the victim, exited the car and jumped onto the short brick wall bordering the courtyard. The victim previously had purchased drugs from various dealers in the building, including the defendant. After hearing the victim jump down off the wall and footsteps coming up behind him, Bloodworth turned around and saw the defendant fire two shots, one of which struck the victim in the chest. Bloodworth immediately fled the scene. The victim, meanwhile, died on the pavement.

The next day, Detective John Velleca of the New Haven police department was called to Hillhouse High School because students were discussing the shooting. On the basis of his investigation there, Velleca attempted to find the defendant and Bloodworth for questioning.

Velleca first located the defendant, who was in custody on unrelated charges. After being advised of his Miranda rights, the defendant signed a waiver of rights form and agreed to talk to the police. The defendant proceeded to give statements to the police that, at trial, he subsequently admitted were lies. The defendant told the police that he was not in the vicinity of the shooting on the night in question, but instead he was with a friend named Iona. He denied being involved in any drug dealing, and he claimed that he had never seen the victim before. He also described his clothing on the night of the shooting as consisting of a grey sweatsuit and black boots. All of these statements conflicted with the defendant's subsequent trial testimony. At no point during the interview did the defendant implicate Bloodworth as the shooter.

The police department investigated the defendant's alibi and found that it could not be corroborated. The police then confronted the defendant with this information. At that point, according to Velleca's testimony, the defendant terminated the interview.³ Thereafter, he was released.

Velleca subsequently located Bloodworth and brought him to the police station for questioning. Bloodworth was frightened and crying, and immediately asked to be enrolled in a witness protection program. He thereafter gave a tape-recorded statement about the shooting and identified the defendant as the shooter from a photoboard. Several days later, on December 13, 1999, the defendant was arrested in connection with the shooting.

At trial, Bloodworth, an admitted drug dealer, testified against the defendant. He indicated that, shortly after the shooting, the defendant paged him and asked him whether he had told anyone about the incident. Early similarly testified at trial about the events surrounding the shooting. Although she did not implicate the defendant as the shooter, since she had not witnessed the homicide, she testified that the defendant's reaction to what had transpired was, "Shit happens."

Additionally, several other acquaintances of the defendant testified that they had seen him with a weapon in the days leading up to the shooting. Tyrone Figgs testified that he had seen the defendant with a.38 special revolver three days before the shooting. This was supported by the testimony of another witness, Angel Rich, who saw the defendant carrying a gun one week before the shooting. Although Rich was not sufficiently familiar with guns to describe the specific caliber of the weapon, her physical description of the gun was consistent with Figgs' testimony. Their testimony also was consistent with the state's firearms expert who testified that the bullet that struck and killed the victim likely was fired by either a .357 magnum revolver or a .38 special revolver, both of which have a similar silver appearance.

The defendant thereafter testified that the story he had given to police when he was first taken into custody on December 9, 1999, was entirely false. His testimony at trial implicated Bloodworth as the shooter. Specifically, the defendant testified that Bloodworth was in the business of selling drugs along with an acquaintance by the name of Drew, and that, on the day of the shooting, he was playing the role of armed lookout when the victim approached and jumped onto the wall. The defendant admitted that he did not see Bloodworth actually shoot the victim, but he saw Bloodworth pull out a gun and raise it immediately before the defendant heard shots fired. The defendant further testified that he was merely an innocent bystander trying to leave the scene in order to get dinner when the homicide occurred. Thereafter, the jury convicted the defendant of manslaughter in the first degree with a firearm and carrying a pistol without a permit, and the trial court sentenced him to thirty-five years imprisonment on the first count and a concurrent three year term of imprisonment for the second, for a total effective sentence of thirty-five years imprisonment. Additional facts will be set forth as necessary in the context of the defendant's specific claims on appeal.

I WHETHER THE STATE'S REFERENCES TO THE DEFENDANT'S POST-MIRANDA SILENCE VIOLATED DOYLE

The defendant's first claim on appeal is that the state violated his federal constitutional right to remain silent following his receipt of Miranda warnings by making repeated references to his invocation of that right during testimony at trial as well as during closing argument. The defendant argues that these violations were not harmless beyond a reasonable doubt and deprived him of a fair trial. Specifically, the defendant contends that the United States Supreme Court's holding in Doyle v. Ohio, supra, 426 U.S. 618-19, that post-Miranda silence cannot be used to impeach a defendant or as affirmative proof of guilt, was violated when: (1) the trial court admitted testimony suggesting that the defendant invoked his right to silence in direct response to the police confronting him about the discrepancies in his statements about his alibi; (2) the state impeached the defendant with questions about his post-Miranda failure to implicate Bloodworth; and (3) the state, during closing argument, emphasized the defendant's failure to relay to the police the version of events he testified to at trial. The state claims, in response, that: (1) this claim is unreviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the record is inadequate with respect to whether the defendant asserted his right to silence; (2) there was no Doyle violation because the defendant waived his right to remain silent; and (3) any possible Doyle violation was harmless beyond a reasonable doubt. We agree with the state insofar as we conclude that there was no Doyle violation. We will address each of the defendant's specific claims of error in turn.

Preliminarily, we note that the defendant failed to preserve this claim at trial. Accordingly, he now seeks review under State v. Golding, supra, 213 Conn. 239-40. Although there is conflicting evidence on the issue of whether the defendant asserted his right to remain silent,⁴ we conclude that the alleged improprieties are not Doyle violations.

In Doyle v. Ohio, supra, 426 U.S. 619, the United States Supreme Court held that "the use for impeachment purposes of [a defendant's] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the [d]ue [p]rocess [c]lause of the [f]ourteenth [a]mendment." "The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony." Wainwright v. Greenfield, 474 U.S. 284, 292, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986). "As such, silence following Miranda warnin...