State v. Angel T.

• Decision Date: 05 February 2008
• Docket Number: No. 27168.,27168.
• Citation: 939 A.2d 611,105 Conn.App. 568
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. ANGEL T.<SMALL><SUP>1</SUP></SMALL>

939 A.2d 611

105 Conn.App. 568

STATE of Connecticut v. ANGEL T.¹

No. 27168.

Appellate Court of Connecticut.

Argued March 13, 2007.

Decided February 5, 2008.

Gary A. Mastronardi, Bridgeport, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and Stephen J. Sedensky III, senior assistant state's attorney, for the appellee (state).

McDONALD, DiPENTIMA and McLACHLAN, Js.

McDONALD, J.

The defendant, Angel T., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2) and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21(1) and (2). The defendant claims that the prosecutor violated his constitutional rights against self-incrimination and to counsel and, therefore, deprived him of his right to a fair trial. He argues that the prosecutor improperly asked the jury to infer guilt by introducing and commenting on evidence that the defendant had obtained a lawyer and refused to be interviewed by the police. We agree with the defendant and find prejudice calling for a new trial. The judgment is therefore reversed.

The following evidence was introduced at the defendant's trial. The victim, then age ten, was the defendant's niece, and the defendant lived at the victim's family residence. In July or August, 1999, the defendant, on three occasions, entered the victim's bedroom while she was asleep. During the first two occasions, the defendant touched the victim's legs and tried to pull down her pajama pants. Each time the victim kicked the defendant, and he left the room before he succeeded in removing her pants. On the third occasion, the defendant entered the victim's bedroom while she was asleep, pulled down her pajama pants, held her legs tightly and licked and bit her in the vaginal area. After the victim hit and kicked the defendant and called out for her father, the defendant left the room.

Two days after the third incident, the victim told her parents about the defendant's actions. Her parents confronted the defendant, and, shortly thereafter, he moved out of the residence to New Jersey. No report was made to police at that time. In May, 2004, the victim's mother told a family counselor about the defendant's conduct, and the counselor reported those allegations to the police, who initiated a criminal investigation.

During the investigation, Bryan Bishop, a police detective, attempted to interview the defendant. Bishop left a telephone message to that effect for the defendant in New Jersey. The following day, Bishop received a telephone call from Ron Sanchez, who identified himself as the defendant's attorney. Sanchez and Bishop scheduled an interview of the defendant by the police, which was to take place at Sanchez' office in New Jersey on July 7, 2004. When Bishop contacted Sanchez on July 6, 2004, to confirm the interview, Sanchez told Bishop that he could no longer make contact with the defendant. As a result of that conversation, Bishop did not travel to New Jersey to interview the defendant but later repeatedly called the defendant's telephone number in New Jersey without successfully contacting him.

At trial, in the state's case, the prosecutor solicited testimony on direct examination from the victim, the victim's mother and the counselor indicating that each individual had given written statements to the police. The prosecutor solicited testimony from Bishop in the state's case that Bishop had taken written statements from the victim, the victim's mother and others. The prosecutor also presented testimony that Bishop had sought a statement from the defendant, whom he had located in New Jersey, but that when Bishop later spoke with Sanchez, Sanchez claimed that he could not contact the defendant.

When the defendant testified in his case on direct examination, he denied sexually assaulting the victim. During his direct examination, the defendant did not testify about giving the police a statement. The prosecutor, however, on cross-examination, asked the defendant about his failure to submit to the police interview in July, 2004. In so doing, the prosecutor asked the defendant why he did not speak with the police. In response, the defendant testified that his attorney's advice was not to speak to anyone about the matter. The defendant testified that his attorney instructed him that he could not talk to anybody and that his attorney would represent him in all matters. In response to the prosecutor's question about whether the lawyer would not let him talk to the police even with the lawyer present, the defendant replied in the affirmative but added that he never talked to the police.

During opening summation, the prosecutor argued that Bishop's failure to meet with the defendant was through no fault of the detective himself. The prosecutor commented that the detective had gathered information from the victim and her family, and also had attempted without success to get information from the defendant.² Defense counsel, during summation did not touch on the police attempts to interview the defendant.

The prosecutor then argued in closing summation that Bishop had wanted to interview the defendant and that there were three versions as to why the interview had not taken place, the defendant's, Sanchez' and Bishop's. The prosecutor argued that Bishop was an impartial investigator reaching out to see what everybody had to say and that Bishop would have benefited from the defendant's interview in evaluating the case. Once contacted by the defendant's attorney, the prosecutor stated that Bishop "play[ed] it straight up" and tried "to go through that attorney" but was told that the attorney could not contact the defendant. The prosecutor also stated that Bishop testified that he had received no response when he attempted later to contact the defendant directly.

Later in closing summation, in discussing the defendant's credibility, the prosecutor pointed out that the defendant was provided with an opportunity to help with the investigation and asked the jury if he elected to do so. The prosecutor remarked that on the witness stand, the defendant gave the impression that it was always someone else's fault because the defendant wanted the interview but that Bishop changed the appointment.³

The defendant argues that the introduction of that evidence and comments on it violated his due process right to a fair trial.⁴

"A defendant has the right to the assistance of counsel for his defense; that right is secured by the sixth and fourteenth amendments to the United States constitution. Generally, while a prosecutor may invite the jury to draw reasonable inferences from the facts in evidence, he or she may not invite the jury to draw adverse inferences from the fact that a defendant, at any time, retained counsel. A prosecutor may not imply that an accused's decision to meet with counsel, even shortly after the incident giving rise to a criminal indictment, implies guilt. Sizemore v. Fletcher, 921 F.2d 667, 671 (6th Cir.1990); see also United States v. Santiago, 46 F.3d 885, 892 (9th Cir.) (under the Sixth Amendment right to counsel, prosecutors may not imply that the fact that a defendant hired a lawyer is a sign of guilt), cert. denied, 515 U.S. 1162, 115 S.Ct. 2617, 132 L.Ed.2d 860 (1995); United States v. McDonald, 620 F.2d 559, 564 (5th Cir.1980) ([i]t is impermissible to attempt to prove a defendant's guilt by pointing ominously to the fact that he has sought the assistance of counsel), on appeal after remand, 672 F.2d 864 (11th Cir.1982). . . . In United States v. Liddy, 509 F.2d 428, 444-45 (D.C.Cir.1974), cert. denied, 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 842 (1975), the United States Court of Appeals for the District of Columbia Circuit relied on the principle that it is always improper to invite the jury to draw an inference of guilt from the fact that a defendant retained counsel." (Internal quotation marks omitted.) State v. Santiago, 100 Conn.App. 236, 244-45, 917 A.2d 1051, cert. denied, 284 Conn. 933, 935 A.2d 152, 153 (2007).

In State v. Santiago, supra, 100 Conn. App. at 245, 917 A.2d 1051, we quoted United States ex rel. Macon v. Yeager, 476 F.2d 613, 615 (3d Cir.), cert. denied, 414 U.S. 855, 94 S.Ct. 154, 38 L.Ed.2d 104 (1973), that "a prosecutor's comment seeking to raise in the jurors' minds an inference of guilt from the defendant's constitutionally protected conduct constitutes a penalty on the free exercise of a constitutional right. . . ." (Internal quotation marks omitted.)

We recognize that references concerning defense counsel may be made by the state during trial. Such references, however, must be focused and pertinent to a proper issue rather than part of an invitation to infer guilt. See State v. Santiago, supra, 100 Conn.App. at 247, 917 A.2d 1051. In the present case, the evidence and comments exceeded a focus on any proper issues other than guilt. Before any arrest, the defendant, who was a suspect in a criminal investigation, was asked by the police to submit to a police interview. We believe that the defendant, facing such a request, has the right, without penalty, to seek and to have the assistance of counsel when interacting with police officers who are seeking an interview. See Coppola v. Powell, 878 F.2d 1562, 1567-68 (1st Cir.), cert. denied, 493 U.S. 969, 110 S.Ct. 418, 107 L.Ed.2d 383 (1989); United States v. Caro, 637 F.2d 869, 876 (2d Cir.1981); United States ex rel. Macon v. Yeager, supra, 476 F.2d at 615.

To determine whether the prosecutor's questions and comments were improper, we must examine their purpose and what inferences were likely to be drawn by the average juror. See State v. Santiago, supra, 100 Conn.App. at 246, 917 A.2d 1051; see also United States v. McDonald, supra, 620 F.2d at 564. The state...