State v. Daniels, 6407

• Decision Date: 11 April 1989
• Docket Number: No. 6407,6407
• Citation: 18 Conn.App. 134,556 A.2d 1040
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Albert DANIELS.

Page 1040

556 A.2d 1040

18 Conn.App. 134

STATE of Connecticut v. Albert DANIELS.

No. 6407.

Appellate Court of Connecticut.

Argued Oct. 4, 1988.

Decided April 11, 1989.

Joette Katz, Public Defender, for appellant (defendant).

Judith Rossi, Deputy Asst. State's Atty., for appellee (State).

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

SPALLONE, Judge.

The defendant was convicted, after a jury trial, of the crime of sexual assault in the first degree, General Statutes § 53a-70. ¹ The defendant claims that the trial court erred (1) in admitting as an admission by silence evidence of the defendant's failure to respond to accusatory statements directed to him by the victim, (2) in failing to instruct the jury that, in order to find the defendant guilty of sexual assault in the first degree under § 53a-70(a), it had to agree unanimously on which statutorily designated "method of compulsion" the defendant had employed to compel the victim to engage in sexual intercourse with him, and (3) in permitting the prosecutor to make improper remarks during closing argument, in violation of the defendant's constitutional rights to a fair trial and due process.

The jury could reasonably have found the following facts. During the evening of September 22, 1986, the defendant and Doe, ² a male companion, were at the Ashley Cafe in Hartford. At approximately 10:40 p.m., Doe invited the victim, who was alone, to join them at their table. The victim accepted the invitation and joined them for a drink. Sometime later, the defendant and Doe informed the victim that they were leaving the bar to obtain marihuana on Magnolia Street and asked her if she wanted to accompany them. The victim agreed to go along. The two men and the victim left the Ashley Cafe. While walking in an area located near the Vine Street School, Doe asked the victim to engage in sexual intercourse with him. The victim refused and turned to walk away. Doe then grabbed her around the neck, pulled her to the ground and dragged her behind the school. The victim resisted, screaming and struggling, and struck Doe. Doe hit the victim in the jaw and threatened to kill her if she did not stop struggling. He reached into his pocket, a gesture causing the victim to believe he had a weapon. The victim, fearing for her life, ceased resisting but continued to scream. Doe proceeded to engage in sexual intercourse with the victim while the defendant stood nearby, smoking a cigarette and watching. Doe then ordered the victim to remain on the ground and told the defendant to "take his turn." The victim, crying, complied with Doe's order to remain on the ground. The defendant then engaged in sexual intercourse with the victim. The police arrived at the scene shortly thereafter, and the defendant was subsequently arrested and charged with sexual assault in the first degree; General Statutes § 53a-70(a); conspiracy to commit sexual assault in the first degree; General Statutes §§ 53a-48(a) and 53a-70(a); and unlawful restraint in the first degree. General Statutes § 53a-95(a). ³

In his first claim of error, the defendant contends that the trial court erred in overruling his objection that the testimony of a state's witness was hearsay and in admitting that testimony as evidence of an "admission by silence" by the defendant. The following facts are relevant to this claim. During its case-in-chief, the state called Officer Cheryl Canino of the Hartford police department as a witness. Canino testified that, during the early morning hours of September 23, 1986, she was dispatched to the rear of the Vine Street School to investigate a report of a woman screaming. Canino testified that, upon her arrival at the school, she observed a male and a female standing some distance away and began to approach them. In response to a question by the prosecutor, Canino began to testify that, as she approached the two individuals, she heard the female speaking to the male. The defendant interrupted, objecting that the testimony was hearsay. In an offer of proof conducted outside the presence of the jury, Canino testified that, as she approached the two individuals, she heard the victim repeatedly saying to the defendant, "Why did the both of you do this to me?" She further testified that the defendant did not respond to the victim's statements. The defendant argued that Canino's testimony regarding what she heard the victim say was hearsay. The state responded that Canino's testimony about the victim's statements to the defendant and the defendant's failure to reply was admissible to establish an admission by conduct. The defendant countered that the admission into evidence of testimony regarding his choice to remain silent in the face of the victim's accusations violated his rights under the fifth and fourteenth amendments to the United States constitution and his rights under the Connecticut constitution. The defendant contended that he had not been under any obligation to respond to the victim's statements "based on his fifth, sixth and fourteenth amendment [rights] and [his rights] under the state's constitution whether he was in custody or not." The court overruled the defendant's hearsay objection and ruled that Canino's testimony about the defendant's silence was admissible to show an admission by silence.

The defendant concedes on appeal that his choice to refrain from responding to the victim's accusatory statements is not protected under either the United States constitution or the Connecticut constitution. ⁴ He argues, however, that the trial court erred in permitting Canino to testify about his failure to respond to the victim's accusatory statements because the statements were made in the presence of a police officer and therefore the circumstances did not naturally call for him to respond.

The rule in Connecticut is that when a statement, accusatory in nature, made in the presence and hearing of an accused, is not denied or explained by him, it may be received into evidence as an admission on his part. State v. Leecan, 198 Conn. 517, 522, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986); State v. Cook, 174 Conn. 73, 76, 381 A.2d 563 (1977); State v. Yochelman, 107 Conn. 148, 152, 139 A. 632 (1927). Evidence of silence in the prearrest setting may be used either as an admission or for impeachment purposes. State v. Leecan, supra. The theory underlying the rule is that the natural reaction of an innocent person to an untrue accusation is promptly to deny, contradict or otherwise object to it; 29 Am.Jur.2d, Evidence §§ 633, 638; and that the failure of the person to contradict or reply is probative of his adoption of the assertion. Obermeier v. Nielsen, 158 Conn. 8, 11, 255 A.2d 819 (1969).

The strength of the inference that the defendant's silence imports acquiescence in the truth of an accusatory statement depends upon the circumstances surrounding the making of the statement. "Recognizing that, at its best, the doctrine of assenting silence brings about the weakest assumption known to the law"; 29 Am.Jur.2d 692, Evidence § 638; many state courts have imposed conditions upon the introduction of evidence that an alleged admission by silence has occurred. C. McCormick, Evidence (3d Ed.) § 160. Some state courts have even barred entirely the introduction, in any criminal case, of evidence of a defendant's silence, reasoning, in part, that the inference of assent was too unreliable. See, e.g., State v. Kelsey, 201 N.W.2d 921, 927 (Iowa 1972); Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967). The doctrine has also been criticized by commentators. See C. Gamble, "The Tacit Admission Rule: Unreliable and Unconstitutional--A Doctrine Ripe for Abandonment," 14 Ga.L.Rev. 27 (1979); Note, "Tacit Criminal Admissions," 112 U.Pa.L.Rev. 210 (1963).

Our Supreme Court has joined other state courts in developing standards governing the admissibility of evidence of a defendant's prearrest silence in the face of accusation. The trial judge must decide, as a preliminary matter, whether proffered evidence of the defendant's silence in the face of accusation is, under the circumstances, sufficiently probative of assent by the defendant to the accusatory statement made in his presence. See Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 315, 268 A.2d 639 (1970); Obermeier v. Nielsen, supra. The inference of assent may be made only when no other explanation is equally consistent with silence. State v. Vitale, 197 Conn. 396, 405, 497 A.2d 956 (1985); State v. Harris, 182 Conn. 220, 229, 438 A.2d 38 (1980). Relevant considerations in determining the proper explanation for an actor's silence are whether the actor heard, understood, and comprehended the statement to which he did not respond, State v. Vitale, supra, 197 Conn. at 406, 497 A.2d 956; whether the circumstances naturally called for a reply from him; id.; and whether there were present physical or emotional factors which render the inference of assent unreliable; State v. Harris, supra.

In reviewing the trial court's decision to admit Canino's testimony, we note that, ordinarily, the trial court's rulings on the admissibility of evidence are accorded great deference and will be disturbed on appeal only upon a showing of clear abuse of discretion. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 222, 544 A.2d 623 (1988); State v. Erhardt, 17 Conn.App. 359, 553 A.2d 188 (1989). We consider, therefore, whether the trial court could reasonably have concluded, on the basis of the evidence before it, that the fact of the defendant's silence was sufficiently probative of assent to an accusatory statement to permit its admission into evidence as an admission by silence.

At the time the trial court ruled on the admissibility of Canino's testimony, the state had presented the testimony of only one other witness, the victim. Through the testimony of Canino and the victim, evidence of the...