State v. Apostle, 2766

• Decision Date: 22 July 1986
• Docket Number: No. 2766,2766
• Citation: 512 A.2d 947,8 Conn.App. 216
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. James P. APOSTLE.

Page 947

512 A.2d 947

8 Conn.App. 216

STATE of Connecticut v. James P. APOSTLE.

No. 2766.

Appellate Court of Connecticut.

Argued Dec. 3, 1985.

Decided July 22, 1986.

Hubert J. Santos, Hartford, for appellant (defendant).

John H. Malone, Asst. State's Atty., with whom, on brief, was John M. Bailey, State's Atty., for appellee (State).

Before DUPONT, C.J., and SPALLONE and BIELUCH, JJ.

DUPONT, Chief Judge.

After a trial to a jury, the defendant was convicted of sexual assault in the first degree, a violation of General Statutes § 53a-70, and risk of injury to a minor, a violation of General Statutes § 53-21. ¹ On appeal, the defendant claims that the court erred: (1) in allowing the state to cross-examine the defendant about his failure subsequently to correct a false statement given by him to the police and to comment on that failure during the state's final argument; (2) in permitting the state to cross-examine defense witnesses about the defendant's general character traits; (3) in permitting a hospital emergency room physician to give an opinion that the victim did not consent to intercourse with the defendant; (4) in failing to disclose to the defendant the contents or substance of portions of the department of children and youth services (DCYS) file about the victim; (5) in allowing the state to argue in summation that the defendant should have called the victim's social worker as a witness; (6) in prohibiting the defendant from introducing testimony concerning the victim's prior sexual experiences; (7) in permitting the state to elicit, on redirect examination of the victim, portions of a statement which she gave to the police; and (8) in denying the defendant's request to charge on the issue of consent in connection with the court's charge on the crime of risk of injury to a minor.

The jury reasonably could have found certain relevant facts based upon the evidence presented. The victim was fifteen years and nine months old on the date of the alleged assault and had been living with foster parents for seven months under DCYS supervision. She had an argument with her foster parents and left home accompanied by a girlfriend. Sometime later, after her friend had returned home, she spoke with the defendant, who had stopped his car at a stoplight. The defendant asked her if she needed a ride and she asked for a ride home. After entering the car, she became afraid of the defendant. He drove to a park where she exited from the car in order to get away from him. He then picked her up, carried her to a wooded area and pushed her down on the ground against a tree. He lifted her shirt, pulled down her shorts, tore off her underwear, and had forced sexual intercourse with her. The victim told the defendant her age prior to the intercourse. The defendant later struck her, urinated on her legs, and then left her. She crawled to a nearby brook where she washed her legs and put on her clothes. She walked to a nearby street and, subsequently, a couple stopped their car and picked her up. They testified that she was crying and hysterical. The victim later called a friend who picked her up and took her to his house, where she told his mother and sister what had happened. Thereafter, she was taken to a hospital where she was examined and treated.

The defendant testified that, although he had sexual intercourse with the victim, it was consensual and followed some kissing in his parked car. He further testified that she told him she was almost seventeen years old, that he did not strike her or urinate on her, and that she became hysterical after the consensual intercourse.

I

The defendant claims that he was denied a fair trial, due process of law and the right to counsel, in violation of the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution because the court allowed the state to cross-examine him about his failure to contact the police after their interrogation of him had ceased in order to correct a statement he had given to the police and to comment about that failure during the state's final argument. ² The defendant characterizes this issue as one involving post-arrest silence and the state characterizes it as one involving the permissible use of prior inconsistent statements to impeach credibility during cross-examination.

After his arrest, the defendant was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He then gave a written statement to the police which was admitted into evidence as an exhibit. On direct examination, he admitted that material portions of the statement were false, but that the falsities were induced by fear and were made prior to his consultation with a lawyer. ³ On cross-examination, he was asked why he had not returned to the police station to correct the statement. The defendant's answer was "If I thought I could, I would have after I talked to my attorney." Defense counsel objected to the question but took no exception, and raised no constitutional claim as the basis for the objection. On redirect examination, the defendant testified that his attorney advised him "not to discuss anything with any police officer from that point on." During final argument, the prosecutor referred to this testimony and claimed that the defendant could and should have corrected his statement. ⁴

The defendant claims that the issue is reviewable, even though not raised at trial, because it involves fundamental constitutional rights to remain silent, to due process, to the assistance of counsel and to a fair trial. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We agree with the defendant because the record here supports his claim that a fundamental constitutional right of his is involved, the right to remain silent after Miranda warnings had been given. State v. Morrill, 197 Conn. 507, 535-37, 498 A.2d 76 (1985); State v. Pellegrino, 194 Conn. 279, 286-89, 480 A.2d 537 (1984).

As far as this court is aware, the precise issue of this case has not been the subject of the holding of any other reported case, either federal or state. The issue is whether, after the warnings of Miranda are given and the defendant chooses to answer questions posed by the police, the defendant has an affirmative obligation when his interrogation has ceased, to return to the police to correct a false statement made during that interrogation about the facts or circumstances of the crime. We conclude that he does not, and that the state may not question him or comment about that failure. Our conclusion is based upon the subsidiary conclusion that a defendant has a constitutional right after he has been given Miranda warnings to abstain from further comment to governmental authorities when his physical custodial inquiry by them has ceased.

It is as important, in this case, to delineate what the issue is not as it is to state what the issue is. We are not concerned with the state's right to impeach the credibility of the defendant on cross-examination by inquiring into the content of any statements voluntarily and knowingly made by him after he has received the warnings mandated by Miranda. Nor is this case related to those which have explored the parameters of a defendant's decision to remain selectively silent during his interrogation after Miranda warnings have been given. See State v. Talton, 197 Conn. 280, 497 A.2d 35 (1985). In this case, the state did, and had a right to, cross-examine the defendant exhaustively as to all of his admittedly false statements relating to the crime with which he was charged made to the police after his Miranda warnings. There is no doubt that the use of a statement made after Miranda warnings have been given, relating to the facts of the crime with which the defendant is charged, may be used to impeach his credibility by illustrating inconsistencies between that statement and a different exculpatory statement given during his in-court testimony. State v. Reid, 193 Conn. 646, 480 A.2d 463 (1984).

A review of but a few cases is necessary to provide the decisional background sufficient for the decision in this case. The "use for impeachment purposes" of a defendant's silence, "at the time of arrest and after receiving Miranda warnings," violates "the Due Process Clause of the Fourteenth Amendment." (Footnote omitted.) Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976). It should be noted that Doyle, its predecessor, United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), and Miranda itself all discuss the right of a defendant to remain silent at the time of the arrest and the failure of the defendant to speak about facts relating to the case at that time. See Miranda v. Arizona, supra, 384 U.S. at 474, 86 S.Ct. at 1627; see also Doyle v. Ohio, supra, 426 U.S. at 616, 96 S.Ct. at 2243; United States v. Hale, supra. These cases concern in-custody interrogation and their focus is on the period immediately following the defendant's receipt of Miranda warnings.

When the defendant chooses to make no statement at all after being given his Miranda warnings, his silence cannot be commented upon during his trial, nor may that silence be used to impeach an explanation subsequently offered by him during his trial. The rationale for this proposition, as stated in Doyle, is that such silence is "insolubly ambiguous" and the use of such silence would penalize the defendant for relying upon the governmental assurances contained in Miranda warnings. If, however, a defendant, after receiving Miranda warnings, opts to waive his right to remain silent, and gives the police a statement, that statement may be used to impeach the credibility of the defendant when he testifies at trial to a different exculpatory version. ⁵ Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222, reh. denied, 448 U.S. 912, 101...