State v. Zeko
| Decision Date | 22 May 1979 |
| Citation | 177 Conn. 545,418 A.2d 917 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Lufti ZEKO. |
Donald D. Dakers, Asst. Public Defender, with whom was Arthur Cohen, law student intern, for appellant (defendant).
Ernest J. Diette, Jr., Asst. State's Atty., with whom, on brief were Arnold Markle, State's Atty., and John T. Redway, Asst. State's Atty., for appellee (state).
Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.
In this case, we are called upon to decide a single issue, important to the administration and supervision of criminal justice in this state: whether a mistrial should be declared when the prosecution in a criminal case utilizes a rebuttal witness for impeachment purposes to show that the defendant had remained silent following his arrest, after the defendant had testified on cross-examination that he had cooperated with police and given them "everything" they had sought in relation to an arson investigation.
The defendant was convicted by a jury of committing the offense of arson in the third degree in violation of § 53a-113 of the General Statutes which makes criminal the reckless destruction of the building of another by intentionally starting a fire or causing an explosion therein.
Neither the facts nor the sufficiency of the evidence to support the defendant's conviction are in dispute: On April 28, 1974, a fire completely consumed a restaurant operated by the defendant in North Haven, Connecticut. There were no eyewitnesses presented to identify the origin of the fire. The defendant presented an alibi defense which was supported by his wife. The state offered evidence tending to prove that the fire was started by a timing device; that the presence of gasoline was detected in the remains of the building; that the defendant had previously burned six of his own establishments in Massachusetts and had collected large amounts of insurance; that the defendant's business "wasn't too good"; and that the restaurant was losing money. In addition, the state presented two witnesses who testified to admissions by the defendant implicating him in the setting of the fire at his restaurant; that one of these witnesses had agreed with the defendant to "torch" the building; that the other witness, the defendant's mother-in-law, testified that, a few days after the fire, the defendant had called her and stated that he had "exploded my place"; and that the defendant had called his insurance agent one day before the conflagration to be sure of his insurance coverage.
The defendant elected to testify in his own behalf. During the course of his testimony, the defendant was asked, on cross-examination, whether he had cooperated with the North Haven police in the investigation of the fire and whether he had told the police "everything" in connection with the fire. The defendant replied, "I did." 1 After the defense rested, the state called a police officer to testify as a rebuttal witness. The following colloquy then ensued:
"Q. Was Mr. Zeko actually arrested on the basis of that warrant?
A. Yes sir, he was.
Q. Was he advised of his constitutional rights?
A. Yes sir, he was.
Q. Did you ask him about the fire?
A. Yes sir, I did.
Q. What, if anything, did he tell you about the fire?
A. He stated that he did not wish to make any statements relative to the fire.
Q. Did that terminate your interview with him?
A. Yes sir, it did."
Counsel for the defendant then requested that the jury be excused, and moved for a mistrial, claiming that the defendant's privilege against self-incrimination, secured by the fifth amendment, had been violated by the officer's testimony. No objection had been made to the cross-examination of the defendant or to the testimony of the officer, nor did defense counsel move to strike the answer.
The court denied the defendant's motion for a mistrial. The defendant refused the court's offer, on two occasions, to instruct the jury as to the limited purpose of the testimony; the court, however, instructed the jury, sua sponte, that the rebuttal testimony of the officer was admitted solely for the purpose of impeaching the defendant's credibility. The defendant took exception to the court's charge. The defendant has appealed to this court, assigning error in the denial of his motion for a mistrial.
In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court raised to a constitutional level the prohibition of prosecutorial "comment on silence for impeachment," prosecutorial conduct which, a year earlier in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), the court had ruled impermissible in federal courts under its supervisory power. 2
The defendant in Hale, arrested for robbery, made no response to an officer's inquiry as to the source of money found on his person. In connection with his alibi testimony at trial, he testified that his wife had given him the money. In order to impeach him, the prosecutor asked why he had not told that story to the police at the time of his arrest. Reserving decision on the alternative constitutional ground of attack, the Supreme Court held that the evidence lacked significant probative value because, having been given his Miranda warnings; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); the defendant's failure to explain about the money could as easily by taken to indicate reliance on the right to remain silent as to support an inference that the explanatory trial testimony was a later fabrication. Relying on its supervisory authority over federal courts, the court held that it was prejudicial error for the trial court to permit the cross-examination of the defendant concerning his silence during police interrogation.
The following term the Supreme Court in Doyle elevated the principle to a constitutional level by holding, in an appeal from a state court conviction, that the use for impeachment purposes of a defendant's silence, after receipt of Miranda warnings, is a violation of the due process clause of the fourteenth amendment. 3 In so doing, the Supreme Court rejected the argument relied upon by the Ohio appellate court in affirming the defendant's conviction, that evidence offered by the state, not utilized to indicate a "confession by silence" or as substantive evidence of guilt, but merely as a cross-examination technique to impeach the defendant's credibility, was permissible. The court also reaffirmed its decision in Hale, stating that the prosecution's need to present to the jury all information relevant to the truth of the defendant's story did not justify the use of post-arrest silence as an impeachment technique.
In Doyle, however, the court suggested that not all prosecutorial use of a defendant's post-trial silence was constitutionally impermissible. The court, limiting the scope of its holding, stated that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation, the court reasoned, the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant's testimony as to his behavior following arrest. See United States v. Fairchild, 505 F.2d 1378, 1383 (5th Cir. 1975).
In Fairchild, the defendant, through his own testimony and as part of his defense, affirmatively put into issue his cooperative attitude, testifying and eliciting testimony that he had responded fully to all inquiries of law enforcement officials. In fact, however, after Fairchild had been given the Miranda warnings, he had remained silent. The Fifth Circuit Court of Appeals was of the opinion that a defendant was not insulated, either by Miranda or the fifth amendment, against impeachment to correct the impression that he had affirmatively created-that he had cooperated with the investigation-when in fact he had not. The court held that "in extreme cases, silence following Miranda warnings can be the type of act which is inconsistent with certain exculpatory trial testimony" and that the defendant, having himself raised the question of his cooperation with the law enforcement agencies, opened the door to a full development, by cross-examination, of that subject. United States v. Fairchild, supra, 1382-83. 4
Finally, in State v. Cook, 174 Conn. 73, 76, 381 A.2d 563 (1977), this court held that it was prejudicial error for the trial court to allow the prosecution on cross-examination to inquire of a defendant why he had not, at the time of his arrest, furnished the state with an alibi, claimed by the defendant at trial, holding that the defendant's silence under such circumstances could not "be laid in evidence against him." State v. Ferrone, 97 Conn. 258, 266, 116 A. 336, 339 (1922). Significantly, the opinion cited both United States v. Hale, and Doyle v. Ohio, supra.
As is fairly evident from the discussion thus far, the lines of argument in this appeal are clearly drawn. The state argues that the prosecution's use of the defendant's post-arrest silence in the present case was permissible solely to test the credibility of the defendant's assertions that he had given the police "everything" they had asked for following his arrest. The defendant, on the other hand, does not urge an across the board bar to the use of post-arrest silence, but argues that such use violated the principles enunciated in Doyle and Hale, adverted to in this court's decision in State v. Cook, supra. Although normally, in the absence of an objection or exception, rulings on evidence will not be reviewed, under the circumstances of this case, where the record supports the defendant's constitutional claim, the claimed error will be reviewed. State v. Rice, 172 Conn. 94, 101, ...
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