State v. Canty

Decision Date12 August 1992
Docket NumberNo. 14463,14463
Citation613 A.2d 1287,223 Conn. 703
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Kevin CANTY.

Berdon, J., dissented in part and filed opinion.

Neal Cone, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

James A. Killen, Asst. State's Atty., with whom, on the brief, were Eugene J. Callahan, State's Atty., and Philip D'Eramo, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and COVELLO, BORDEN, BERDON and FRANCIS X. HENNESSY, JJ.

COVELLO, Associate Justice.

The defendant, Kevin Canty, is appealing his conviction of the sale of narcotics, as an accessory, by a person who is not drug-dependent, in violation of General Statutes §§ 53a-8 and 21a-278(b). 1 Following a jury trial and a guilty verdict, the trial court rendered judgment sentencing the defendant to ten years imprisonment, suspended after seven years followed by a three year conditional discharge. The issues on appeal are whether the trial court: (1) improperly allowed the state to cross-examine the defendant concerning his failure to disclose certain exculpatory information before trial; (2) abused its discretion in allowing the state to present rebuttal evidence from a police officer; (3) unfairly emphasized the state's evidence in its charge to the jury; (4) abused its discretion in refusing to order the removal of handcuffs from a defense witness; and (5) improperly refused to declare a mistrial as the result of the state's references to the absence of two witnesses referred to during the defendant's case-in-chief. We affirm the judgment.

The jury might reasonably have found the following facts. On April 28, 1989, Officer Ashley Gonzalez of the Norwalk police department was working as an undercover agent in the Mulvoy Street area of South Norwalk. An "arrest team" consisting of Officer Kenneth Riley, Officer Carlos Cotto and Detective Ronald Pine was also in the area to support Gonzalez. According to their plan, Gonzalez, who was wearing a hidden body microphone, would attempt to buy narcotics while the arrest team monitored the transaction. If Gonzalez were successful, the arrest team would respond by making arrests based upon the information provided via the microphone.

At approximately 2:45 p.m., Gonzalez pulled his unmarked car up to the curb in front of a group of males gathered on the street. Gonzalez gestured to one of the men, later identified as Hugh Pollard, in a manner that indicated that Gonzalez was interested in purchasing drugs. After Pollard approached the car and opened the door, Gonzalez asked him for some "P," which is a street term for heroin. Pollard told Gonzalez to wait, walked down the sidewalk, and approached a black male, later identified as the defendant. Gonzalez then saw the defendant hand Pollard a glassine envelope after a brief conversation between the two. Gonzalez later testified that he had observed this exchange from a distance of approximately fifteen feet.

After this exchange, Pollard, still clenching his fist around the glassine envelope, returned to Gonzalez' car, closed the door, and told Gonzalez to "drive around" to avoid police surveillance. As Gonzalez drove around the block, Pollard handed him the envelope and, in exchange, Gonzalez gave Pollard $20. Gonzalez then returned Pollard to their original location and radioed descriptions of Pollard and the defendant to the arrest team. Gonzalez then drove to police headquarters where, upon performing a field test on the substance in the envelope, he determined that it was heroin.

A few minutes after Gonzalez had returned Pollard to the Mulvoy Street area, the arrest team drove to the area and, based on Gonzalez' descriptions, identified Pollard and the defendant standing on Mulvoy Street. Pine got out of the vehicle, approached Pollard and placed him under arrest. As Riley began walking toward the defendant, the defendant began to run. Riley and Cotto both chased the defendant, during which time Riley observed him drop a brown object. This object was later recovered and found to be a bag containing twelve vials of crack cocaine. The officers pursued the defendant into a housing complex where he was subsequently apprehended. Cotto later testified that the defendant, upon his arrest, "just kept reiterating that he didn't have anything, he didn't have anything." The police recovered the defendant's red jacket that he had been carrying as he ran and found, inside one of the pockets, a small notebook with his name on the cover. Inside the notebook there were entries for parties, phone numbers, and what appeared to be drug transactions, e.g., "Stevie, two bags" and "5 [grams]."

The state tried the defendant as an accessory to the heroin sale by Pollard to Gonzalez. At trial, the defendant took the stand and testified that he had never given Pollard a glassine envelope, but had been simply shaking hands with him after making an agreement to wallpaper several rooms in Pollard's mother's house. The defendant further testified that he had not been the only person to run when the arrest team arrived and he had done so because he had not wanted his father to know that he had been in the Mulvoy Street area. The defendant also stated that he had not dropped a brown paper bag during the chase prior to his arrest, but that he had seen someone, later identified as Curtis Langley (Gumby), drop it when Gumby had run away. 2 Pollard also testified and corroborated the claim that he and the defendant had been merely shaking hands and that he, Pollard, had acted alone in the sale to Gonzalez. Willie Massey, a bystander at the time of the arrest, corroborated the defendant's testimony that it was Gumby, not the accused, who had dropped the brown bag as the group scattered.

I

Following direct examination, the state's attorney asked the defendant why he had waited until trial to disclose that it was Gumby who had dropped the bag. The defendant responded that he had told his counsel from the outset that he did not have the bag, but he had wanted to find out Gumby's real name before disclosing it to his attorney. 3 During recross-examination, the trial court asked the defendant why he had not disclosed this information to the authorities. 4 In his response, the defendant denied having remained silent and testified: "I told Officer Cotto that I did not throw the drugs down." This exchange constituted the sole reference during trial to the defendant's alleged non-disclosure. There was no objection to the line of questioning until after completion of the redirect examination that involved the same subject. There was no motion for a mistrial. The defendant now claims that the state's and the trial court's questions about his failure to tell his attorney and the authorities about Gumby constituted a violation of the due process clause of the fourteenth amendment pursuant to the holding in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

In Doyle, the United States Supreme Court held that "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda 5 warnings, violated the Due Process Clause of the Fourteenth Amendment." Id. at 619, 96 S.Ct. at 2245. The Miranda tenets "require that a person taken into custody be advised immediately that he has the right to remain silent, [and] that anything he says may be used against him.... Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested." Id. at 617, 96 S.Ct. at 2244. "[Such] silence ... is 'insolubly ambiguous' because it may constitute a reliance upon those rights rather than a tacit admission that the accused has an insufficient defense or explanation for his conduct." State v. Talton, 197 Conn. 280, 295, 497 A.2d 35 (1985).

Doyle applies to bar comment on the defendant's silence in this case even if he was never subjected to a custodial interrogation following his receipt of Miranda warnings. 6 State v. Plourde, 208 Conn. 455, 466, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 847, 102 L.Ed.2d 979 (1989). A Doyle violation may however be harmless beyond a reasonable doubt and we conclude that such harmlessness has been established in the circumstances of this case.

In State v. Silano, 204 Conn. 769, 529 A.2d 1283 (1987), the prosecutor asked the defendant why, after a custodial interrogation had ceased, he did not return to the police to correct allegedly false statements he had made during that interrogation. In addition, the prosecutor commented during closing argument about the defendant's failure to return to the police. We concluded that the error was harmless beyond a reasonable doubt.

"A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant's silence following a Miranda warning. Under such circumstances, the state's use of a defendant's postarrest silence does not constitute reversible error. In limited instances, ' "[w]hen there is but a single reference at trial to the fact of [the] defendant's silence, the reference is neither repeated nor linked with [the] defendant's exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to [the] defendant's silence constitutes harmless error." Chapman v. United States, 547 F.2d 1240, 1250 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977); Leake v. Cox, 432 F.2d 982, 984 (4th Cir.1970). The [error] has similarly been [found to be harmless] where a prosecutor does not focus upon or highlight the...

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