State v. Williams

• Decision Date: 26 May 1992
• Docket Number: No. 9751,9751
• Citation: 610 A.2d 672,27 Conn.App. 654
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Floyd WILLIAMS.

Page 672

610 A.2d 672

27 Conn.App. 654

STATE of Connecticut v. Floyd WILLIAMS.

No. 9751.

Appellate Court of Connecticut.

Argued Jan. 13, 1992.

Decided May 26, 1992.

[27 Conn.App. 655] Elizabeth M. Inkster, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald D. Browne, State's Atty., and Henry J. Lyons, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and LAVERY and LANDAU, JJ.

LANDAU, Judge.

The defendant, Floyd Williams, appeals from a judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(2) and assault in the first degree in violation of General Statutes § 53a-59(a)(1). The defendant claims that the trial court improperly (1) permitted the state to comment on the defendant's pretrial silence in violation of his constitutional right to remain silent and his right to due process, (2) admitted evidence indicative of, and instructed the jury on, the defendant's consciousness of guilt, (3) enlarged the offenses with which the defendant was charged by including in its instruction uncharged theories of liability in violation of his right to notice and due process, and (4) instructed the jury on inferences and circumstantial evidence. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the evening of May 25, 1988, James Allen and Debra Lindsay went to Faces Cafe in Bridgeport. At some point during the evening they went to another bar, and then returned to Faces. Upon their return, Lindsay entered the bar. Before Allen entered the bar, he was approached by the defendant, who placed a 9 millimeter gun to his head and demanded his money. At about the same time, another individual, Robert Payton, fired a shotgun into the air. The defendant took $20 and a sweater from the victim, Allen, and as he backed away toward the car of his companion, David Goodman, he shot the victim once in the right arm.

The defendant and Goodman fled in Goodman's car and drove to the police station. Goodman went inside to report that someone had been shot, and the defendant remained in the car. Neither confessed to the shooting. The victim was interviewed by the police after undergoing extensive surgery and at that time identified the defendant by name as the individual who shot him. ¹ An arrest warrant was issued for the defendant.

A second arrest warrant was issued for the defendant in connection with a murder committed on August 28, 1989. On October 28, 1989, two months after the murder and almost one and one-half years after the assault on Allen, a search warrant for the house of the defendant's mother was executed. The defendant was found hiding in the attic and was arrested.

I

The defendant first claims that the trial court improperly permitted the state to cross-examine him concerning his pretrial silence and to comment on that silence during closing argument, in violation of his constitutional right to remain silent under the strictures of Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976). He argues that the prosecutor's breach of his constitutional rights to remain silent and to due process and the denigration of the right to counsel independently and collectively require that his convictions be set aside and a new trial ordered. ² We disagree.

Initially, we note that the defendant failed to raise this claim at trial. While we do not generally entertain claims not raised at trial, we will review claims that meet the standard for reviewability set forth by our Supreme Court in State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973) and State v. Golding, 213 Conn. 233, 239-42, 567 A.2d 823 (1989). ³ Both the Supreme The defendant's complaint of a Doyle violation is two-fold. The defendant argues that the prosecutor improperly commented on both his prearrest and postarrest silence. During cross-examination of the defendant the following colloquy occurred:

                [27 Conn.App. 658] Court and this court have reviewed similar claims in the past.   See State v. Jones, 215 Conn. 173, 182, 575 A.2d 216 (1990);  State v. Hull, 210 Conn. 481, 486, 556 A.2d 154 (1989);  State v. Plourde, 208 Conn. 455, 462, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 847, 102 L.Ed.2d 979 (1989);  State v. Apostle, 8 Conn.App. 216, 221, 512 A.2d 947 (1986).   Although the record here is adequate to review the claim concerning the use of the defendant's prearrest and postarrest silence and although it is of constitutional magnitude alleging a violation of a fundamental constitutional right, we conclude that the alleged violation does not clearly exist and that the defendant was not deprived of a fair trial as to the prearrest silence.   We further conclude that a harmless error analysis as to the postarrest silence reveals that the state proved its harmlessness beyond a reasonable doubt
                

"Q. When you say you didn't do the shooting, I just want to ask you this. You didn't do the shooting--why didn't you tell [the police] that you didn't do the shooting [when you went to the police station on the night of the shooting]?

"A. I don't remember them asking me that.

"Q. Do you remember being outside the police station the night of the shooting?

"A. Yes.

"Q. You didn't go in there at all and tell them that you didn't do the shooting?

"A. No.

"Q. And from May 25, 1988, to October 20, 1989, ⁴ you never told the police that you did not do the shooting; is that right?

"A. No.

"Q. And from October 29, 1989, up to the present day, you never told the police that you didn't shoot Mr. Allen?

"A. No, I don't remember."

Additionally, in closing argument the prosecutor stated: "Now it's the question of why didn't Mr. Williams tell the police.... Mr. Goodman stated that on the very night of the shooting, Goodman claimed to have driven Mr. Williams to the police station.... Why didn't Mr. Williams at that point [go into the police station]?"

"Doyle v. Ohio, [supra], proscribes the use for impeachment purposes of a defendant's silence subsequent to his arrest and after receiving Miranda ⁵ warnings. 'The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony.' " (Emphasis omitted.) State v. Shashaty, 205 Conn. 39, 48, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 753, 98 L.Ed.2d 766 (1988), quoting Wainwright v. Greenfield, 74 U.S. 284, 292, 106 S.Ct. 634, 639, 88 L.Ed.2d 623 (1986). Doyle applies only to cases involving custodial interrogation and the focus is on the period immediately following the defendant's receipt of Miranda warnings. State v. Paulino, 26 Conn.App. 86, 93, 598 A.2d 666 (1991), cert. granted on other grounds, 221 Conn. 907, 600 A.2d The defendant's reliance on Doyle to support his argument that comment on his prearrest silence violated his due process rights and his right to remain silent is misplaced. The defendant seeks to extend the prohibition against evidence of postarrest silence of an accused to the period prior to his arrest. The Doyle court based its holding that "impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process"; State v. Plourde, supra, 208 Conn. at 465, 545 A.2d 1071; on two considerations: "First, it noted that silence in the wake of Miranda warnings is 'insolubly ambiguous' and consequently of little probative value. Second and more important, it observed that 'while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.' " Id. at 465-66, 545 A.2d 1071; Greer v. Miller, 483 U.S. 756, 762-63, 107 S.Ct. 3102, 3107-08, 97 L.Ed.2d 618 (1987); Wainwright v. Greenfield, supra, 474 U.S. at 291, 106 S.Ct. at 638.

1361 (1992); State v. Henderson, 24 Conn.App. 295, 299, 588 A.2d 224 (1991).

Although it is "fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial"; Doyle v. Ohio, supra, 426 U.S. at 618, 96 S.Ct. at 2245; prosecutorial comment on the defendant's prearrest silence, however, can be used for purposes of impeachment and does not create a constitutional violation. ⁶ Jenkins v. Anderson, 447 U.S. 231, 235, 100 S.Ct. 2124, 2127, 65 L.Ed.2d 86 (1980); State v. Leecan, 198 Conn. 517, 521, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986). Consequently, we conclude that the state's use of the defendant's prearrest silence to impeach his credibility was not improper.

Our inquiry does not end here, however, because the prosecutorial comments and cross-examination subject to our review involve both prearrest and postarrest silence. Here, we conclude that the prosecutor's question to the defendant "And from October 29, 1989, up to the present day, you never told the police that you didn't shoot Mr. Allen" was improper because it involves postarrest silence. We must now determine "whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible questioning." See State v. Morrill, 197 Conn. 507, 539, 498 A.2d 76 (1985).

" 'A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant's silence...