State v. Taft

• Decision Date: 16 October 2001
• Docket Number: (SC 16305)
• Citation: 781 A.2d 302,258 Conn. 412
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. WILLIAM TAFT,

258 Conn. 412

781 A.2d 302

STATE OF CONNECTICUT v. WILLIAM TAFT,

(SC 16305)

Supreme Court of Connecticut.

Argued December 7, 2000.

Officially released October 16, 2001.

McDonald, C. J., and Borden, Katz, Palmer and Sullivan, Js.¹ Richard E. Condon, Jr., special deputy assistant public defender, for the appellant (defendant).

Robert M. Spector, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Elpedio N. Vitale, senior assistant state's attorney, for the appellee (state).

Opinion

MCDONALD, C. J.

The defendant, William Taft, appeals, following our grant of certification, from the judgment of the Appellate Court affirming the trial court's judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (5)² and carrying a pistol without a permit in violation of General Statutes § 29-35 (a).³ We granted the defendant's petition for certification to appeal limited to the following question: "Did the Appellate Court properly conclude that the trial court properly denied the defendant's motion for a mistrial?" State v. Taft, 253 Conn. 909, 753 A.2d 942 (2000). The defendant claims that there are two grounds upon which his motion for a mistrial should have been granted: that it was improper for the trial court to admit evidence (1) of the defendant's failure, after his arrest, to contact his cousin; and (2) of the defendant's disclosure that he did not contact his cousin on the advice of his counsel. We reject the defendant's claims and affirm the judgment of the Appellate Court. The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. "On October 19, 1994, Ernest Herold drove to the Dunbar Cafe in New Haven with two friends. Herold parked his car behind the bar and proceeded to the front of the bar, where he began talking with the owner of the bar, Robert Williams. Herold then observed a tan Lincoln being parked in front of the bar. Three men exited the vehicle, walked to the bar entrance and began talking with Williams. The three men were Andre Provite, who is the defendant's cousin, Phil Young and the defendant.

"The three men entered the bar and Herold followed shortly thereafter. Herold ordered a beer and watched the defendant, Williams and another man playing poker. After the card game, Herold heard the defendant ask Williams for money, which Williams refused. Herold then approached the bar, and the defendant turned toward him and asked Williams whether Herold was his nephew or bodyguard or had some other relation to him. Herold then left the bar. He walked to a nearby after-hours club, entered it briefly and decided to leave. Herold then headed toward his car to go home.

"As he approached the Dunbar Cafe, Herold saw the defendant, Provite, Young and two other men standing together near the entrance to the bar. As Herold passed by the group, he heard the defendant say to one of the men: `What the fuck is this? Who the fuck is this guy?' Herold responded: `Why you keep asking who I am? Who are you to keep asking who I am? What is your problem?' The defendant then told Herold, I will show you,' and pulled out a chrome-colored pistol, which he pointed at Herold. Herold then turned to run, heard a gunshot and fell to the ground with a head wound. The bullet penetrated the back of his head, shattered his jaw and exited near his left cheek. Herold was then rushed to a hospital."⁴State v. Taft, 57 Conn. App. 19, 20-21, 746 A.2d 813 (2000).

"The defendant fled the scene with Provite and Young and, subsequently, fled the state. He was apprehended in July, 1995, in Kansas City, Missouri, and was brought back to Connecticut to face criminal charges pertaining to these events." Id., 21.

At the trial, Provite testified for the defense that, although he had been at the Dunbar Cafe, he was in his car at the time of the shooting and did not witness it. Provite testified that moments after he heard a shot being fired, he saw the defendant, who was not carrying a gun, approach Provite's car.

Provite's testimony was impeached by a tape-recorded statement that Provite had given to the police the day after the shooting. In that statement, Provite said that the defendant had shot Herold and that he had seen Herold fall to the ground, with the defendant standing over him holding a gun. Provite also stated that he had driven the defendant from the scene because he was afraid that, if he did not, the defendant would shoot him.

The defendant later testified in his own defense that an unidentified person had purchased drugs from Herold and then stood behind Herold and shot him in the head. He also testified that he left the scene with Provite because he had been so disturbed by the shooting.

On cross-examination, the state's attorney attempted to discredit the defendant's testimony by asking the defendant why he did not contact Provite, his cousin, subsequent to his arrest. Both the defendant and Provite had testified that they had not spoken with each other after the defendant's arrest. The defendant offered the following response: "No. Why I'm going to call them and tell them something for something I didn't do." In response to a later question about why he did not contact his cousin, the defendant replied: "I wouldn't call them and tell or put no words in his mouth." The defendant later testified, "First of all, I am not going to involve people in something I know I haven't done."

On redirect examination, the defendant testified that he had been instructed by his trial attorney not to talk to Provite or anyone "about the case." The following exchange took place between the defendant and his attorney. Question: "Didn't I tell you I didn't want you talking to [Provite] about this case?" Answer: "Yes." Question: "And I didn't want you to talk to anybody about the case, right?" Answer: "Right." The state's attorney later elicited testimony from the defendant that Connecticut defense counsel did not represent the defendant, and did not so instruct him, until approximately two months after his arrest. See id., 23. The defendant had been arrested in Missouri in July, 1995, and his trial attorney did not enter her appearance until September 27, 1995, at the defendant's arraignment in Connecticut.

Following this testimony, the defendant moved for a mistrial, claiming that the state's questions concerning his postarrest silence were improper. He also moved to strike the testimony. The trial court denied both motions. The trial court reasoned that the state's attorney's line of questioning was proper because it was relevant to the credibility of the defendant and Provite and had nothing to do with the defendant's constitutional right to remain silent. Id., 23-24. The trial court thereafter twice instructed the jury that "whenever anyone does not communicate with someone on the advice of counsel, it is not a negative factor at all," and that, if the jury found that the defendant did not contact Provite on the advice of counsel, the jury should "draw no unfavorable inference" from that circumstance. This appeal followed.

The standard for review of an action upon a motion for a mistrial is well established. "While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial ... and the whole proceedings are vitiated.... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.... State v. Wooten, [227 Conn. 677, 693-94, 631 A.2d 271 (1993)]. On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. State v. Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989); State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972).The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice." (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 836-37, 661 A.2d 539 (1995). "The decision whether to grant a mistrial is within the sound discretion of the trial court." State v. Correa, 241 Conn. 322, 351, 696 A.2d 944 (1997); State v. Day, supra, 835; see Practice Book § 42-43.⁵

The defendant claims that the admission of the evidence violated his right to silence as enunciated in State v. Ferrone, 97 Conn. 258, 116 A. 336 (1922). We disagree. In Ferrone, this court held that "when the accused is in custody, our law accords him the right to reply to question or statement, or to remain silent. [The accused's] silence under such circumstances cannot be laid in evidence against him." Id., 266. In Ferrone, the state had offered the defendant's silence in the face of accusatory police questions as an adoptive admission.

Ferrone concerns the doctrine of adoptive admissions under principles of the law of evidence. State v. Leecan, 198 Conn. 517, 526, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed.2d 550 (1986). As we said in Leecan,"[w]hen 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." (Internal quotation marks omitted.) Id., 522. We went on in Leecan to hold that "[b]ecause many persons... are aware of their right to remain silent and are frequently advised by counsel to exercise that right when arrested, the custodial setting is simply not an occasion when the circumstances naturally call upon a defendant to speak or to reply to police inquiries. Accordingly,...