State v. Lytell, 13235

• Decision Date: 22 March 1988
• Docket Number: No. 13235,13235
• Citation: 539 A.2d 133,206 Conn. 657
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Malcolm LYTELL.

Page 133

539 A.2d 133

206 Conn. 657

STATE of Connecticut v. Malcolm LYTELL.

No. 13235.

Supreme Court of Connecticut.

Argued Jan. 12, 1988.

Decided March 22, 1988.

John W. Watson, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).

Guy W. Wolf III, Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, GLASS and COVELLO, JJ.

GLASS, Associate Justice.

The defendant, Malcolm Lytell, was charged with two counts of the crime of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), ¹ one count of the crime of larceny in the second degree in violation of General Statutes § 53a-123(a)(2), ² and one count of the crime of using a motor vehicle without the owner's permission in violation of General Statutes § 53a-119b(a)(1). ³ He was tried by a jury and found guilty on all counts. On May 23, 1986, the trial court, Hadden, J., sentenced the defendant to a total effective sentence of imprisonment of twenty-one years. The defendant now appeals, raising four claims: (1) that he was deprived of a fair trial due to the introduction into evidence of his post-arrest refusal to name his alibi witnesses; (2) that the trial court erred in its instruction to the jury on fingerprint evidence; (3) that the trial court erred in its instruction to the jury on proof beyond a reasonable doubt; and (4) that conviction and punishment for two counts of the crime of robbery in the first degree violated his due process and double jeopardy rights under the federal and state constitutions. We find no error.

The jury could reasonably have found that on November 7, 1985, at approximately 12:30 p.m., Antony Guarino, the owner of the Congress Cafe (cafe) in New Haven, and his wife, Mary, were robbed by three black males. The Guarinos had driven to the cafe in Mary's car which they had parked in front of the cafe door. Harry Dailey, the night bartender, was with the Guarinos when the three black males entered the cafe and announced that it was a "stickup." One man was armed with a gun and one man was carrying a stick or tree branch. The man with the gun ordered Mr. Guarino and Dailey to lie down on the floor. Mrs. Guariano panicked and began throwing glasses at the men. The two men without guns pushed her to the floor and hit her with the stick.

The men then took approximately $1500 from Mr. Guarino's pockets and a bank bag containing $6000 that they had ordered Mrs. Guarino to retrieve from a closet behind the bar. The men then took Mrs. Guarino's car keys and drove away in her car. Approximately five minutes after the robbery, Mrs. Guarino's car was found abandoned in a vacant lot a short distance from the cafe. A green ski mask worn by one of the men was found inside the car. Mrs. Guarino's purse and car keys were missing. The car was "dusted" for fingerprints, and one that was identified as the defendant's was found on the exterior of the driver's window.

At the time of the robbery one of the state's witnesses, Dennis Sims, lived two blocks away from the cafe. Sims and the defendant had known each other for approximately five years and had regular, personal contact. On the day of the robbery, while walking past the cafe, Sims had noticed the defendant and two other men across the street from the bar. Later Sims saw the men run across the street and enter the bar. Sims, knowing "what was going down," retreated, and shortly thereafter saw the three men leave the bar and drive away in Mrs. Guarino's car.

Later, Sims approached Detective Jerry Waller, who had been dispatched to the area of the cafe, and told Waller that he thought he might be wanted for a robbery he had not committed. He stated that if Waller would "see what's happening in [his] case," he might have some useful information. Waller found no warrant for Sims' arrest and arranged to meet him around the corner. At that meeting Sims told Waller that the defendant was involved in the robbery. The next day Sims went to the police station and made a photographic identification of the defendant. Sims also identified the defendant at trial.

The defendant was arrested on November 13, 1985. After executing a written waiver of his Miranda rights; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); the defendant made an oral statement to Detective Robert Coffey, in which he claimed to have been hosting or running a card game in Waterbury at the time of the robbery. When Coffey asked the defendant for the names and addresses of the persons in the card game to enable him to investigate the defendant's alibi claim, the defendant refused to give such information. Coffey then told the defendant that his fingerprint had been found on Mrs. Guarino's car, and the defendant replied that that was "impossible" because he had never been in or near the car.

I

The defendant's first claim is that he was deprived of a fair trial by the introduction of his post-arrest refusal to name his alibi witnesses. The defendant specifically relies on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), for the proposition that a defendant's silence after having been arrested and having received Miranda warnings may not be used to impeach his trial testimony. We hold that the principles of Doyle are inapplicable to the facts of this case, and that our recent decision in State v. Talton, 197 Conn. 280, 497 A.2d 35 (1985), is dispositive of this issue.

In Talton, the defendant was charged with first degree sexual assault, and after waiving his Miranda rights refused to answer a question regarding the name of the woman he claimed to have been with at the time of the assault. The state presented evidence of his refusal to answer the question at the trial. We stated: "The Doyle decision, however, is not applicable to the facts of this case. The crucial distinction is that, here, the defendant did not remain silent after he was arrested and advised of his rights. After being given Miranda warnings, the defendant clearly chose to forego his right to remain silent. Once an arrestee has waived his right to remain silent, the Doyle rationale is not operative because the arrestee has not remained silent and an explanatory statement assuredly is no longer 'insolubly ambiguous.' By speaking, the defendant has chosen unambiguously not to assert his right to remain silent. He knows that anything he says can and will be used against him and it is manifestly illogical to theorize that he might be choosing not to assert the right to remain silent as to part of his exculpatory story, while invoking that right as to other parts of his story. While a defendant may invoke his right to remain silent at any time, even after he has initially waived his right to remain silent, it does not necessarily follow that he may remain 'selectively' silent." State v. Talton, supra, 197 Conn. at 295, 497 A.2d 35. Thus in Talton, the defendant's "expression of a disinclination to answer one question was not tantamount to any assertion of his fifth amendment right." Id.

Similarly, the defendant's actions in this case cannot be construed as an invocation of his fifth amendment right. As in Talton, the defendant waived his Miranda rights and voluntarily discussed the events of the day in question with Coffey. After the defendant had refused to provide the names and addresses of the alibi witnesses, the questioning continued. Specifically, Coffey stated that the defendant's fingerprint had been found on Mrs. Guarino's car. The defendant expressed his disbelief and then Coffey again asked the defendant to name his alibi witnesses. At this point the defendant requested an attorney and the interrogation was terminated. The first refusal to name the witnesses came before the defendant's invocation of his fifth amendment rights. Thus, the Talton rationale applies and the defendant's refusal to answer the question regarding the identity of his alibi witnesses was properly admitted as evidence at trial.

II

The defendant's second claim is that the trial court erred in refusing to charge the jury as requested on fingerprint evidence. The defendant argues that when fingerprint evidence is presented in a trial, the charge to the jury must contain an instruction that "[u]nless it can be shown that the circumstances are such that the fingerprints could have been impressed only at the time the crime was perpetrated, the presence of the defendant's fingerprints does not establish his connection with the crime charged." State v. Mayell, 163 Conn. 419, 426, 311 A.2d 60 (1972); see also State v. Payne, 186 Conn. 179, 182, 440 A.2d 280 (1982). We squarely addressed this issue in our recent decision in State v. Santangelo, 205 Conn. 578, 599, 534 A.2d 1175 (1987), where we stated that "[s]uch an instruction is germane where the fingerprints of an accused constitute the only evidence, or the principal evidence to convict."

In this case, the fingerprint evidence was not the only or principal evidence implicating the defendant. He was positively identified by a witness who had known him for a number of years. Further, the Guarinos' descriptions of the height, build and beard of one of the robbers was consistent with the defendant's appearance. Finally, the defendant knew that the Guarinos kept a large sum of money in the cafe to cash payroll checks. Thus, the trial court was under no obligation to give the requested fingerprint instruction because of the significant other evidence in this case.

III

The defendant next claims that the trial court erred in its charge on proof beyond a reasonable doubt. The trial court's first definition of reasonable doubt was "[r]easonable doubt means this: It is a doubt for which a reasonable person can give a valid reason." The defendant argues that this definition and the entire charge on reasonable doubt,...