State v. Smith

• Decision Date: 30 December 1986
• Docket Number: Nos. 12444,12452,s. 12444
• Citation: 519 A.2d 26,201 Conn. 659
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Barry SMITH. STATE of Connecticut v. Mark LOTT.

Page 26

519 A.2d 26

201 Conn. 659

STATE of Connecticut v. Barry SMITH.

STATE of Connecticut v. Mark LOTT.

Nos. 12444, 12452.

Supreme Court of Connecticut.

Argued Oct. 9, 1986.

Decided Dec. 30, 1986.

Louis S. Avitabile, Special Public Defender, for appellant (defendant in the first case).

Alan D. McWhirter, Asst. Public Defender, with whom, on the brief, was Raymond J. Quinn, Jr., Public Defender, for appellant (defendant in the second case).

Linda N. Knight, Asst. State's Atty., with whom, on the brief, was John A. Connelly, State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and BERDON, JJ.

CALLAHAN, Associate Justice.

The defendant, Barry Smith, was charged in a substitute information with the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70, and unlawful restraint in the first degree in violation of General Statutes § 53a-95. His trial was consolidated with that of a codefendant, Mark Lott, who was charged in a substitute information with identical offenses arising from the same incident. Both defendants were convicted by a jury as charged and sentenced to terms of imprisonment.

All charges arose from the complaint of a sixteen year old girl. At trial, the victim testified that on December 26, 1982, she had attended a midnight public skating session at a roller skating rink in Waterbury. When she left the rink at approximately 4 a.m. she met the defendant Lott who forced her into the front seat of his automobile in which the defendant Smith was a passenger. She was then driven about Waterbury and eventually to a building in Waterbury where she was pushed down the driveway into a basement apartment, forcibly restrained, disrobed, and subjected to multiple sexual assaults by both Smith and Lott.

The defendant Smith claims that the trial court erred by: (1) failing to give a no adverse inference charge and by instructing the jury that it could consider Smith's interest in the outcome of the trial in assessing his credibility; (2) failing to instruct the jury concerning the credibility of witnesses and the interest and motive of the complaining witness in accordance with his request to charge; (3) consolidating his trial with that of Lott and failing to grant his motion for a new trial on the ground that the consolidation of the trials worked a substantial injustice; and (4) instructing the jury concerning circumstantial evidence and reasonable doubt in such a way as to dilute the required standard of proof.

The defendant Lott joins in Smith's second claim of error and further contends that the trial court erred by joining his trial with that of Smith. We find no reversible error.

I

Smith first claims that the trial court erred by failing to give a no adverse inference instruction. We disagree.

Smith, in the presentation of his own defense, after calling a number of witnesses, exercised his right not to testify and rested. At that time there was an extensive colloquy with the trial court which clearly demonstrates that Smith was cognizant of his right to take the stand or to refuse to do so. See Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971). At the time he opted not to be a witness in his own case, Smith informed the trial court that he would request a charge at the conclusion of the evidence that the jury was to draw no adverse inferences from his failure to testify.

Thereafter, Lott, in his defense, outside the presence of the jury, requested that Smith take the witness stand. Smith, after consulting with his attorney, agreed to testify and answered in the affirmative when asked by the trial court whether he was willing to testify and "preferred" to take the stand. Then, in the presence of the jury, Smith related a version of the events of the morning of December 26, 1982, which was exculpatory of both himself and Lott. Subsequently, Smith filed a request that the trial court instruct the jury that no adverse inferences could be drawn from his "failure ... to testify in his own behalf in his own case." The court refused to so charge.

We think that Smith, in his zeal to obtain the best of all worlds, exalts form over substance. It is true that an accused who exercises his right to refuse to testify has a constitutional right to a no adverse inference instruction when requested; Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981); and that General Statutes § 54-84(b) ¹ mandates that a trial court instruct the jury that it "may draw no unfavorable inferences from the accused's failure to testify," unless the accused requests otherwise. State v. Burke, 182 Conn. 330, 333, 438 A.2d 93 (1980). The raison d'etre for both the constitutional right and the statute, however, is to reduce to a minimum jury speculation as to why an accused would remain silent in the face of a criminal accusation. "No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must ... use the unique power of the jury instruction to reduce that speculation to a minimum." Carter v. Kentucky, supra, 450 U.S. at 303, 101 S.Ct. at 1120. "Our legislature has prescribed § 54-84(b) to be the jury instruction that must be given to reduce speculation to a minimum." State v. Cobb, 199 Conn. 322, 324, 507 A.2d 457 (1986).

In this case, however, Smith did not stand mute. When called by the codefendant, he voluntarily took the witness stand and testified to his version of the incident for which he was on trial, even though he had the absolute right to refuse to do so. United States v. Doe, 655 F.2d 920, 926 (9th Cir.1980). His testimony was exculpatory not only of the codefendant Lott but of himself and, if believed by the jury, would obviously have required the acquittal of both. Further, the trial court instructed the jury that all the evidence introduced at the joint trial by either party could be used in either case, so that Smith's exculpatory testimony inured to his benefit. There was no cause, in this instance, therefore, for the jury to speculate about his silence. Under the circumstances, a no adverse inference instruction was neither constitutionally nor statutorily required or warranted.

Smith also claims that the trial court erred by not obtaining a valid "waiver" of his right to refuse to testify before he took the stand because the court failed to inform him that if he testified he would not receive a no adverse inference instruction. We disagree. Our federal and state constitutions proscribe only compelled self incrimination; S.E.C. v. Jerry T. O'Brien, Inc., 467 U.S. 735, 742, 104 S.Ct. 2720, 2725, 81 L.Ed.2d 615 (1984); United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed.2d 376 (1943); State v. Iasevoli, 188 Conn. 325, 334, 449 A.2d 996 (1982); which includes the unqualified right of an accused to refuse to testify at trial. Harris v. New York, supra, 401 U.S. at 225, 91 S.Ct. at 645. In this instance the record reveals that Smith was aware that he could elect whether to refuse to take the stand or to testify either in his own case or that of the codefendant. While represented by counsel, however, he voluntarily testified when called by Lott. He was obviously not compelled to testify. There is no indication that he would have suffered any penalty if he had invoked his fifth amendment privilege; yet he failed to assert it. " '[T]he [Fifth] Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not be considered to have been "compelled" within the meaning of the Amendment. United States v. Monia, [supra, 317 U.S. at 427, 63 S.Ct. at 410].' " Minnesota v. Murphy, 465 U.S. 420, 427, 104 S.Ct. 1136, 1142, 79 L.Ed.2d 409, reh. denied, 466 U.S. 945, 104 S.Ct. 1932, 80 L.Ed.2d 477 (1984). "Witnesses who failed to claim the privilege were once said to have 'waived' it, but we have recently abandoned this 'vague term,' Green v. United States, 355 U.S. 184, 191 [78 S.Ct. 221, 225, 2 L.Ed.2d 199] (1957), and 'made clear that an individual may lose the benefit of the privilege without making a knowing and intelligent waiver.' Garner v. United States, [424 U.S. 648, 654 n. 9, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976) ]." Minnesota v. Murphy, supra, 465 U.S. at 428, 104 S.Ct. at 1142; see United States v. Janoe, 720 F.2d 1156, 1161 (10th Cir.1983). "[T]he fifth amendment right not to incriminate oneself is not self-executing and a person desirous of claiming his fifth amendment privilege must assert it in a timely fashion." State v. Huey, 199 Conn. 121, 129, 505 A.2d 1242 (1986). The fact that the trial court did not inform the defendant that a no adverse inference charge was unavailable if he testified does not render his testimony compelled within the meaning of the fifth amendment. There is no merit to this claim.

Smith also contends that the trial court committed reversible error by instructing the jury that it could consider his interest in the outcome of the case in evaluating his credibility. It is Smith's claim that such an instruction should not have been given because he testified, not in his own case, but as a witness for the codefendant Lott. Under the circumstances he has manufactured a distinction without a difference.

Smith retained his interest in the case and his status as a defendant throughout the joint trial and the jury was instructed that it could consider Smith's exculpatory testimony in his case, as well as in the case of the codefendant Lott. Smith's credibility was therefore an important factor in determining his guilt or innocence. As with any accused who takes the witness stand the jury was entitled to consider Smith's interest in the outcome of the joint trial in weighing his testimony. We have repeatedly held...