State v. Bryant

• Citation: 202 Conn. 676,523 A.2d 451
• Decision Date: 24 March 1987
• Docket Number: No. 13016,13016
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Logeno BRYANT.

Page 451

523 A.2d 451

202 Conn. 676

STATE of Connecticut v. Logeno BRYANT.

No. 13016.

Supreme Court of Connecticut.

Argued Nov. 5, 1986.

Decided March 24, 1987.

Kent Drager, Assistant Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).

John F. Cocheo, Asst. State's Atty., with whom was C. Robert Satti, State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and CALLAHAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

After a trial to the jury, the defendant, Logeno Bryant, was found guilty of sexual assault in the first degree in violation of General Statutes § 53a-70, ¹ burglary in the second degree in violation of General Statutes § 53a-102(a), ² and unlawful restraint in the first degree in violation of General Statutes § 53a-95. ³ This appeal followed.

On appeal, the defendant claims that the trial court erred in: (1) depriving him of the right to call to the witness stand a third party alleged by the defendant to be the actual culprit and have him invoke the privilege against self-incrimination in the presence of the jury; (2) refusing to allow five witnesses to testify before the jury to declarations against penal interest made by the alleged third party culprit that were exculpatory to the defendant; (3) permitting the deprivation of his constitutional right to due process and to present a defense by allowing the state to impeach his alibi witnesses by "multiple references" to those witnesses' claimed pretrial "silence"; (4) permitting the state to attempt to impeach his own alibi testimony by explicit and repeated references to his postarrest silence; and (5) its jury instructions on circumstantial evidence.

Among the background facts that the jury could reasonably have found are the following. On September 8, 1983, at approximately 1:30 a.m., the victim was asleep in her basement apartment on Dell Avenue in New London. She had fallen asleep without turning off the 19 inch television set in the room. She was awakened by someone touching her arm and saw a black man standing over her. He told her to lie still and then he started to remove her underwear. Her assailant was interrupted by a buzzing sound from the television, the screen of which was "all white snow." He then turned the volume down on the television. Although she tried to get up, he held her arm and he told her to get back into bed. During this time she observed his face. After informing her that he knew that her boyfriend, now her husband, was at work and would not be home until later that morning, the assailant forced her to have sexual intercourse with him. Shortly thereafter, the police were contacted and came to the scene, as did some of the victim's family members. Upon checking her apartment, the victim found that her pocketbook had been taken; among other items in it was her driver's license. An examination of the apartment disclosed that the assailant had apparently entered through a window where the screen had been broken. The police took the victim to the hospital where certain postrape tests were undertaken.

On the day of this incident, the victim told the police, family members and friends that her assailant was a light skinned black man in his early twenties, that he weighed between 160 and 180 pounds, had a kind of muscular build and possessed a deep voice. She said further that he had a small or short afro, had no facial hair and was wearing a light colored tan tank top and cut-off blue jeans. She also noted an odor about him like aftershave or cologne.

The police had the victim view "maybe one hundred slides." Although some of the slides depicted persons with characteristics similar to those of her assailant, she was unable to make a positive identification. Sergeant William C. Gavitt, a New London detective, told the jury that as a result of the investigation of this crime, "one of the Bryants, not specifically Logeno, could be a suspect." The victim later identified the defendant as her assailant from an array of eight photos, although she told Gavitt at that time that she was not 100 percent certain of her identification. A few days later, Gavitt had the victim come to police headquarters because he had received information that the defendant had an appointment in a nearby building on that day. ⁴ Upon her arrival Gavitt told the victim that he wanted her to take a walk with him to see if she saw anybody she recognized. She did not recognize any black males that they had passed as they walked along the street. She did, however, identify the defendant as her assailant as he exited the lobby of the building, recognizing him by his deep voice and the distinct odor of his aftershave. During the trial, she also identified the defendant as her assailant when he was sitting not at the defense table but in the audience among several other black males he had chosen. ⁵

At the time of the crimes involved, the Bryant family lived at 57 Henry Street in New London. The family consisted of Audrey Bryant and her three sons, Eugene, the defendant and Timothy. The Bryant residence is between 110 and 130 yards away from the victim's apartment building on Dell Avenue. In August, 1984, shortly before trial, another tenant at 57 Henry Street found the victim's driver's license in his garage on the premises. It was turned over to the New London police on August 18, 1984.

Those additional circumstances relevant to the defendant's claims of error will be set out below as they become necessary.

I

We turn first to the defendant's claims involving his third party culprit defense. At trial, the defendant presented an alibi defense and claimed that his brother, Eugene Bryant, in fact committed the crime with which he was charged. He therefore claims that the trial court erred in denying him the right to call Eugene Bryant to the witness stand and have him invoke his privilege against self-incrimination in the presence of the jury. In making this claim, he acknowledges that he does so against the majority view as set out in the leading case of Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971). He also argues that the general rule against prosecutorial use of a privilege-invoking witness against the defendant "simply" does not apply when it is the defendant who wishes to call such a witness. While recognizing that the jury could draw "a variety of ... inferences" from the alleged third party culprit's invocation of the privilege, he maintains that, given his constitutional right to call witnesses and present a defense, he had the right to have the jury determine which inference to draw. He is aware that basic to the majority position, as set out in Bowles, is that the defense should not be permitted to do this because such evidence would have a prejudicial impact on the prosecution's case. He maintains that the probative value of the witness' invocation outweighs its prejudicial impact.

Bowles identifies two forms of prejudice: (1) the defense is permitted to use evidence not subject to cross-examination by the state; and (2) the invocation of the privilege would have a "disproportionate impact" on the jury. Bowles v. United States, supra, at 541-42. This claimed prejudice, the defendant claims, is "vastly overstated." In the event that no right of the defendant to require a witness to invoke his self-incrimination privilege in the presence of a jury is found, his alternative position is that the trial judge erred in refusing to allow him to call Eugene to have him answer, in the presence of the jury, those questions that he willingly answered on the voir dire ⁶ so that the jury could at least observe him.

The rule of Bowles v. United States, supra, rests on the conclusion that to allow the defense to call such a witness permits the party calling the witness to bolster its case out of inferences arising from the use of the privilege. See also Namet v. United States, 373 U.S. 179, 180, 83 S.Ct. 1151, 1151-52, 10 L.Ed.2d 278 (1963). One court put it this way: "Neither side has the right to benefit from any inferences the jury may draw simply from the witness' assertion of the privilege either alone or in conjunction with questions that have been put to him." United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.), reh. denied, 503 F.2d 568 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974); Bowles v. United States, supra at 541. "The rule is grounded not only in the constitutional notion that guilt may not be inferred from the exercise of the Fifth Amendment privilege but also in the danger that a witness's invoking the Fifth Amendment in the presence of the jury will have a disproportionate impact on their deliberations.... In reality the probative value of the event [invoking the privilege] is almost entirely undercut by the absence of any requirement that the witness justify ⁷ his fear of incrimination and by the fact that it is a form of evidence not subject to cross-examination." Bowles v. United States, supra at 541-42.

We do not agree with the defendant in this case that the prejudice claimed by permitting a witness to be called by the defendant to invoke the fifth amendment before the jury is "vastly overstated." Neither side has the right to benefit from inferences capable of being drawn by the jury where the privilege is invoked by the witness. See, e.g., United States v. Beechum, 582 F.2d 898, 909 n. 10 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). Reason and human experience indicate that inferences are certainly suggested by such a tactic; the danger inherent in this circumstance is that the inference or inferences drawn may have little, if any, juristic relation to the issues before the jury. More important, however, is the fact that the inference, whatever it may be, cannot be attacked...