State v. Angel T.

• Decision Date: 30 June 2009
• Docket Number: No. 18121.,18121.
• Citation: 973 A.2d 1207,292 Conn. 262
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. ANGEL T.<SMALL><SUP>*</SUP></SMALL>

973 A.2d 1207

292 Conn. 262

STATE of Connecticut v. ANGEL T.^*

No. 18121.

Supreme Court of Connecticut.

Argued February 10, 2009.

Decided June 30, 2009.

Timothy J. Sugrue, senior assistant state's attorney, with whom was Stephen J. Sedensky II, state's attorney, for the appellant (state).

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

ROGERS, C.J., and NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js.

NORCOTT, J.

This certified appeal presents us with our first opportunity to determine whether a prosecutor commits impropriety by eliciting evidence of, and commenting during summations about, the fact that the defendant, Angel T., had obtained representation by an attorney during the police investigation of the crimes at issue. The state appeals, upon our grant of its petition for certification,¹ from the judgment of the Appellate Court reversing the trial court's judgment, rendered after a jury trial, convicting the defendant of two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21(1) and (2), and one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2). State v. Angel T., 105 Conn.App. 568, 569, 939 A.2d 611 (2008). On appeal, the state claims that the Appellate Court improperly concluded that the prosecutor had committed impropriety that deprived the defendant of his right to a fair trial by introducing evidence of, and arguing during summations about, the fact that the defendant, while being represented by an attorney, had failed to meet with the police during their investigation of the victim's allegations. We conclude that the prosecutor's questions and comments were inappropriate because they implied that the jury could infer the defendant's guilt from his retention of an attorney during the police investigation, and that these comments deprived the defendant of a fair trial because the state has failed to demonstrate beyond a reasonable doubt that it is not reasonably likely that the jury's verdict would have been different absent the sum total of the improprieties. Accordingly, we affirm the judgment of the Appellate Court.

The Appellate Court's opinion sets forth the following relevant facts and procedural history. "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.² 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.³

"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 [the defendant] talk to the police even with the lawyer present, the defendant replied in the affirmative, but added that he never talked to the police.⁴

"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.⁵ 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."⁶ State v. Angel T., supra, 105 Conn.App. at 569-73, 939 A.2d 611.

Thereafter, the jury returned a verdict finding the defendant guilty of one count of sexual assault in the first degree in violation of § 53a-70(a)(2), and two counts of risk of injury to a child in violation of § 53-21(1) and (2). The jury, however, found the defendant not guilty of additional charges of one count of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-70(a)(2), and one count of attempted risk of injury to a child in violation of §§ 53a-49(a)(2) and 53-21(2). The trial court rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of fifteen years imprisonment, execution suspended after ten years, and probation with special conditions including sexual offender evaluation and registration.

The defendant appealed from the judgment of conviction to the Appellate Court, claiming that the prosecutor improperly had questioned him about his failure to meet with the police after they had contacted his attorney, and then commented on that testimony during summations. Id., at 573, 939 A.2d 611. The Appellate Court, relying on, inter alia United States v. Liddy, 509 F.2d 428 (D.C.Cir.1974), cert. denied, 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 842 (1975), concluded that "[t]he state's introduction of evidence of the defendant's silence in response to police questioning, on advice of counsel, violated his right against compulsory self-incrimination," and that "the state's introduction of such evidence and the adverse comments at trial on that evidence by the prosecutor were improper."⁷ State v. Angel T., supra, 105 Conn.App. at 576, 939 A.2d 611. Employing the six factor analysis from State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987),⁸ the Appellate Court also concluded that the prosecutorial impropriety had deprived the defendant of his right to a fair trial because "[t]he case against the defendant was not overwhelming"; State v. Angel T., supra, at 577, 939 A.2d 611; it was uninvited by the defense and "the defendant's refusal to be interviewed by the police [was] a prominent part of the state's case." Id., at 578, 939 A.2d 611. Accordingly, the Appellate Court reversed the judgment of conviction and ordered a new trial. Id. This certified appeal followed. See footnote 1 of this opinion.

On appeal, the state claims that the Appellate Court improperly concluded that the defendant was deprived of a fair trial by the prosecutor's...