State v. Luther

• Decision Date: 09 September 2014
• Docket Number: No. 34596.,34596.
• Citation: 99 A.3d 1242,152 Conn.App. 682
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jason Lamar LUTHER.

152 Conn.App. 682

99 A.3d 1242

STATE of Connecticut

v.Jason Lamar LUTHER.

No. 34596.

Appellate Court of Connecticut.

Argued March 12, 2014.

Decided Sept. 9, 2014.

Alice Osedach, assistant public defender, with whom was Kristen Mostowy, certified legal intern, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Mary Elizabeth Baran, former senior assistant state's attorney, for the appellee (state).

BEACH, KELLER and PELLEGRINO, Js.

Opinion

PELLEGRINO, J.

The defendant, Jason Lamar Luther, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a firearm in violation of General Statutes § 53a–217, carrying a pistol or revolver without a permit in violation of General Statutes § 29–35(a), and interfering with an officer in violation of General Statutes § 53a–167a. On appeal, the defendant claims that the trial court violated his right to due process, as guaranteed by the fourteenth amendment to the United States constitution, when it improperly (1) allowed the state to elicit testimony regarding his post-Miranda¹ silence in violation of his fifth amendment right to remain silent, and (2) allowed his accomplice to invoke his fifth amendment privilege against self-incrimination and not testify. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 6 p.m. on April 18, 2010, the victim left his house in New Haven to get something to eat and drink at a nearby convenience store. From there, the victim walked to a friend's house that was located close to the store. The victim knocked on the door, but when no one answered he decided to return home.

While walking home, the victim noticed that he was being followed by two men, the defendant and his accomplice, Raymond Lee Smokes. When the victim turned his head and made eye contact with one of the two men, the man asked what he was looking at. Subsequently, Smokes physically confronted the victim. He attempted to take the victim's cell phone, and a struggle ensued. The pair began wrestling on the ground. During the struggle, Smokes cut the victim on his face with a razor blade. The defendant stood several feet away holding a firearm while the altercation was taking place. The defendant and Smokes eventually fled with the victim's cell phone and keys.

The victim returned home and his mother called the police to report the incident. Officers Craig C. Miller and Ann M. Mays of the New Haven Police Department responded to the victim's house. The victim told the officers what had happened and described the individuals who attacked him. He described the two men as wearing baseball hats and red jackets. He said that Smokes had cut his face with a razor blade, and that the defendant was in possession of a firearm. Mays alerted other officers who were in the area of the robbery, and also conveyed a description of the suspects.

Officer Armando Vale of the New Haven Police Department received a report of two individuals running in the area who matched the description of Smokes and the defendant. Vale drove his marked police vehicle in front of the defendant and Smokes. When Vale stated that he wanted to speak with them, the defendant and Smokes fled and jumped over a fence. They then encountered two more uniformed New Haven police officers, Richard Cotto and David Acosta, who identified themselves as police and directed the fleeing suspects to stop. The defendant and Smokes then split up and began running in separate directions. Cotto continued to follow the defendant. When he caught up with the defendant he again directed him to stop. Cotto attempted to apprehend the defendant, who resisted arrest by pushing the officer. As a result, Cotto deployed his Taser on the defendant, administering one five-second cycle of electricity that immobilized him. After both the defendant and Smokes were detained, the victim identified them as the individuals who had robbed him.²

The officers then retraced the route that the defendant and Smokes had taken to search for anything that the individuals may have dropped. The officers found a red jacket and a firearm where the defendant and Smokes had jumped over the fence. The victim stated that the red jacket the police seized was consistent with the jacket that the defendant wore during the robbery. The police found the victim's cell phone on top of the jacket. Inside of the pocket of the jacket was a second cell phone. It was later determined that the phone numbers contained in the second cell phone corresponded to the family members and friends of the defendant.³ The victim identified the gun recovered as the one held by the defendant during the robbery. An analysis of the gun revealed that the defendant could not be excluded as a contributor to the DNA found on the handle.⁴

After a jury trial, the court rendered judgment of conviction of criminal possession of a firearm, carrying a pistol or revolver without a permit, and interfering with an officer.⁵ The defendant appeals, claiming that (1) his due process right to remain silent was violated when the state was allowed to question him regarding his post-Miranda silence, and (2) the court improperly precluded him from calling Smokes as a witness by allowing him to invoke his fifth amendment privilege against self-incrimination. We disagree.

Additional facts will be set forth as necessary.

I

The defendant claims that the state cross-examined him regarding his post-Miranda silence⁶ in violation of the fifth and fourteenth amendments to the United States constitution. We disagree. The following facts are necessary for the resolution of this claim. While the defendant was incarcerated and awaiting trial, he filed a complaint with the New Haven Police Department alleging that he was falsely arrested, the officers used excessive force, the arrest was motivated by hate or bias, and he was verbally abused. The defendant claimed, in part, that Cotto had deployed his Taser on him unjustifiably because he had not been resisting arrest at the time. Two sergeants from the police department's internal affairs unit (sergeants) investigated the complaint.

The sergeants met with the defendant and John Bowdren, the defendant's attorney, at the New Haven Correctional Center.⁷ Bowdren told the sergeants that he was concerned that something the defendant might say during the interview potentially could be used against him in his criminal trial. The sergeants assured him that they were only there to investigate the defendant's civil complaint and not the underlying crime. They cautioned, however, that either of them could be forced to testify in court on the basis of the information provided during the interview. Bowdren said that he understood and would interrupt the defendant if he began giving an incriminating response.

The defendant then proceeded to give four different explanations as to why he was running away from the police, prior to being arrested, in support of his claim that there was no justification for Cotto using his Taser.⁸ First, the defendant told the sergeants that he and Smokes were behind an establishment called “Spunky's.” He stated that they went there to smoke marijuana and that when he came “trotting” out from behind the building an officer deployed his Taser for no reason. Second, the defendant stated that he was behind “Spunky's” with Smokes getting ready to smoke marijuana when he saw an officer in plain clothes carrying a gun and running toward them. When the officer said, “[D]on't move,” Smokes grabbed the defendant and said, “[L]et's go.” Although the defendant initially did not move, he later “ ‘trotted’ ” off until he ultimately stopped after seeing more officers. The defendant claimed that even though he put his hands up after seeing the officers, an officer deployed his Taser anyway. Third, the defendant said that while he was behind “Spunky's” with Smokes, an unidentified white male began running toward him. Thinking he was about to be robbed, the defendant initially froze, but eventually ran off. Finally, the defendant stated that he ran from the police because he was on parole and was in possession of marijuana. In sum, the letter documenting the investigation stated: “[The defendant] was inconsistent in describing the events leading up to the point when he is [T]asered. [The defendant] provided several variations as to when he identified the white male running towards him to be a police officer.” There is no record that Bowdren stopped the interview at any time, or that the defendant expressly invoked his right to remain silent in response to the sergeants' questioning.

At trial, the defendant gave a different account of the events surrounding his arrest. According to the defendant's testimony at trial, he was familiar with the victim because Smokes previously had sold marijuana to the victim on several occasions. The defendant testified that, on the date in question, he was on the corner of Fillmore Street and Pine Street in New Haven when he observed the victim and Smokes having a conversation. At some point the two started arguing. Then, Smokes lunged at the victim's waist, and a physical confrontation ensued during which a gun dropped from the victim's person. Smokes picked it up and the victim ran away, leaving his cell phone behind. The defendant testified that subsequently he and Smokes ran away because “I was upset ... I could have got robbed or shot.... I basically was just trying to get out of there. I was, like, we got to go, we got to get moving here.” After noticing all of the police activity, according to the defendant, they continued to run because Smokes was in possession of marijuana, the victim's gun, and the victim's cell phone. The defendant left his jacket behind “Spunky's” before he was apprehended.

During cross-examination, the state asked the defendant...