State v. D'Amato, 163 Conn.App. 536

Background

On March 12, 2011 East Haven police seized drugs and >$1,300 from a car; Officer Dennis Spaulding counted the cash and allegedly placed it in a locked evidence box (an old USPS-style mailbox) in the department evidence closet. Supervisor Sgt. Gary DePalma signed the evidence log and said he heard the box open and close but did not actually see Spaulding deposit the bags.
Five days later the money was found missing; evidence closet access was limited by key but several officers had access. Surveillance stills (eight-second interval cameras) showed the defendant, a detective, near the closet and later leaving with something under his arm.
Spaulding later was convicted of federal crimes related to his police conduct and, through counsel, invoked his Fifth Amendment privilege; he informed the court (outside the jury) he would refuse to testify if called. Defense did not request that Spaulding assert the privilege before the jury.
At trial the jury convicted the defendant of second-degree larceny (defrauding a public community) and tampering with physical evidence; the defendant appealed arguing (1) denial of the right to present a defense by preventing Spaulding from invoking the Fifth in front of the jury, (2) prosecutorial misconduct in describing Spaulding’s would-be testimony and failure to give a neutralizing instruction, and (3) improper exclusion of impeachment evidence through Sgt. Kammerer about DePalma’s prior statements.
The trial court allowed defense cross-examination of DePalma (who acknowledged he asked Spaulding about the missing money), excluded hearsay answers from Kammerer about what DePalma allegedly said, and the court did not require Spaulding to assert the privilege in front of the jury. The conviction and sentence were affirmed on appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court violated defendant’s right to present a defense by preventing Spaulding from invoking the Fifth Amendment in front of the jury	State: exclusion was proper to prevent prejudicial inference from a privilege invocation and to protect witness’s Fifth Amendment rights	D’Amato: calling Spaulding solely to invoke the privilege was necessary to implicate Spaulding as an alternative perpetrator; court should have required invocation before jury	Court: no violation — Bryant controls; trial court not required to force an on-the-record invocation before the jury; defense could present third‑party culpability through other evidence; claim fails Golding prong three
Whether prosecutor improperly told the jury what Spaulding’s testimony would have been and failed to give a neutralizing instruction about Spaulding’s unavailability	D’Amato: prosecutor’s rebuttal speculated about Spaulding’s would‑be testimony and the court should have instructed jurors not to draw inference from his absence	State: prosecutor’s rebuttal was a fair response to defense argument that Spaulding might have been the culprit; no comment on Spaulding’s absence; defendant waived any instruction claim	Court: prosecutor’s remarks were proper rebuttal; no misconduct; defendant waived challenge to missing neutralizing instruction
Whether trial court abused discretion by excluding Kammerer’s testimony about what DePalma said when confronting Spaulding (impeachment/substantive hearsay)	D’Amato: Kammerer’s testimony would show a prior inconsistent statement or bias by DePalma, useful for impeachment and third‑party culpability	State: testimony was hearsay and not admissible as a prior inconsistent statement for substantive purposes; DePalma had already admitted making the statement when confronted	Court: exclusion was not an abuse of discretion — Kammerer’s testimony was hearsay, not admissible under prior‑inconsistent‑statement rules, and DePalma had been confronted with his statement on the record

Key Cases Cited

Washington v. Texas, 388 U.S. 14 (right to present witnesses is fundamental)
Chambers v. Mississippi, 410 U.S. 284 (confrontation rights not absolute; may yield to other trial interests)
State v. Bryant, 202 Conn. 676 (trial court may bar calling a witness solely to have them invoke Fifth in front of jury)
State v. Golding, 213 Conn. 233 (test for unpreserved constitutional claims on appeal)
State v. Andrews, 313 Conn. 266 (framework for evaluating prosecutorial impropriety and due process)
State v. Williams, 204 Conn. 523 (factors for assessing prosecutorial misconduct)
State v. Jordan, 305 Conn. 1 (scope of Confrontation Clause and right to cross-examine)