State v. Henderson

• Decision Date: 26 March 1991
• Docket Number: No. 7944,7944
• Citation: 588 A.2d 224,24 Conn.App. 295
• Parties: STATE of Connecticut v. Willie HENDERSON.
• Court: Connecticut Court of Appeals

Page 224

588 A.2d 224

24 Conn.App. 295

STATE of Connecticut v. Willie HENDERSON.

No. 7944.

Appellate Court of Connecticut.

Argued Dec. 6, 1990.

Decided March 26, 1991.

Vicki H. Hutchinson, Danbury, for appellant (defendant).

Leon F. Dalbec, Jr., Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Warren Maxwell, Sr. Asst. State's Atty., for appellee (state).

Before DALY, LANDAU and CRETELLA, JJ.

CRETELLA, Judge.

The defendant appeals from judgments of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 and burglary in the third degree in violation of General Statutes § 53a-103. The defendant's sole claim is that the trial court improperly admitted into evidence testimony and comments concerning his postarrest silence. Since this claim had not been preserved by the defendant at trial, we will test its reviewability under the four articulated conditions as set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Although the record is adequate to review the alleged claim and although it is of constitutional magnitude alleging a violation of a fundamental right, we conclude that the alleged violation does not clearly exist and that the defendant was not deprived of a fair trial. We therefore affirm the judgments of the trial court.

The jury could have reasonably found that on August 28, 1987, the victim was living in a three-family house that was owned by her mother. She resided on the first floor of that house with her five children and her brother. In the early morning hours, she was sleeping with two of her children in one of the bedrooms. When she fell asleep, the television in that room was on. She was awakened by the defendant who had entered through her broken back door and had placed a gun to her head. The room was dark because the television had been unplugged. She was ordered to get out of bed, to disrobe and then, under threat of bodily harm, she was sexually attacked. Before leaving, the defendant plugged in the television set for lighting so that he could see the victim's face and, in turn, the victim had the opportunity to look at the defendant. While the defendant was attempting to escape, the victim's brother and two of her sons were awakened. They chased the defendant outside of the house, finally catching him in a neighbor's backyard two houses away. In the ensuing struggle, one of the sons knocked the defendant unconscious when he hit him in the head with a toy wagon. The police arrived in a few minutes, took the defendant into custody and thereafter found a toy gun and a knife in the victim's bedroom.

That morning, while the victim was at the police station giving a statement to the police, she was shown several photographs including one of the defendant that she positively identified as being of the person who had sexually assaulted her. She also made an in-court identification of the defendant during the trial.

The defendant, who took the stand on his own behalf, denied having entered the victim's residence or having had any sexual relations with her. On cross-examination, the state asked the defendant if, while he was in police custody, he had stated that he had no recollection of what he was doing on the night in question. Instead of replying with a simple yes or no, the defendant replied, "I gave the detective no statement." There was no objection made to the state's question nor any motion to strike the defendant's response and no further questions were asked of the defendant.

In rebuttal, the state called Detective Ronald Faggaini, who had spoken with the defendant at police headquarters on the evening in question. He testified that the defendant, after he had been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), stated to him "that he did not remember what he did that morning and that he had nothing to say." The defendant again made no objection to this testimony, nor did he make any motion to strike it.

The question to be decided is whether the defendant's claim involves the use of a prior inconsistent statement to impeach his credibility or is an invasion of postarrest silence as is prohibited under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). If it involves an invasion of the defendant's right to remain silent after custodial inquiry has been completed, it would be a constitutional violation. It is not a constitutional violation, however, if it involves only the state's efforts to impeach the credibility of the defendant. If, after he has been advised of his rights pursuant to Miranda, a defendant gives any statement to the police, that...