State v. Devito, 159 Conn.App. 560

Background

Around 2 a.m. on Aug. 21, 2011, state troopers observed a dark SUV make a sudden U-turn and stop; defendant was found alone in the driver’s seat with keys on the floor.
Troopers detected alcohol odor, observed slurred speech and glassy eyes, and the defendant admitted drinking "three or four drinks." He failed three field sobriety tests and was arrested.
At the barracks, after Miranda warnings, the defendant was read the implied-consent/breath-test notice and refused to submit to a breath test.
At trial the defendant’s primary defense was an alibi: Blake Balaam testified he had been driving and left the keys in the center console.
The prosecutor elicited testimony from troopers that the defendant never denied driving during the stop; defense did not object at trial. The jury convicted on DUI and driving with a suspended license; defendant appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of testimony about defendant’s silence (Doyle claim)	State: Troopers’ testimony described defendant’s conduct during the stop; pre-arrest silence is admissible.	Devito: Testimony and prosecutor’s questions implicated post-Miranda silence, violating due process under Doyle.	Court: No Doyle violation; testimony related to pre-Miranda conduct or was ambiguous but more likely pre-arrest silence, so admissible.
Prosecutorial impropriety for eliciting/commenting on silence	State: Prosecutor may argue from evidence admitted at trial; commenting on troopers’ testimony and reasonable inferences is permitted.	Devito: Prosecutor improperly referenced post-Miranda silence and chilled right not to testify.	Court: No misconduct—comments were based on admitted evidence and reasonable inferences, not a forbidden comment on defendant’s failure to testify.
Alleged burden-shift, golden-rule, and improper personal opinion/comments	State: Closing argument drew permissible inferences, appealed to jurors’ common sense; did not shift burden or appeal improperly to emotion.	Devito: Prosecutor shifted burden, asked jurors to put themselves in officers’ shoes, gave personal view of guilt, and misstated facts.	Court: Remarks were permissible (reasonable inferences, common-sense analogies); not a golden-rule or burden-shift violation and factual statements were not misleading in context.
Attacking alibi witness credibility	State: May challenge witness credibility based on evidence and reasonable inferences (e.g., friend, felon, inconsistent facts).	Devito: Prosecutor improperly implied witness lied and misstated relationship facts.	Court: Attack on Balaam’s credibility was permissible as argument from evidence and inference, not improper personal knowledge.

Key Cases Cited

Miranda v. Arizona, 384 U.S. 436 (establishes Miranda warnings and protection against use of post-warning silence)
Doyle v. Ohio, 426 U.S. 610 (post-Miranda silence cannot be used to impeach or penalize defendant)
Fletcher v. Weir, 455 U.S. 603 (pre-Miranda silence may be admissible; Doyle inapplicable)
Jenkins v. Anderson, 447 U.S. 231 (pre-arrest silence may be used for impeachment in some circumstances)
Wainwright v. Greenfield, 474 U.S. 284 (reinforces Doyle’s protection for post-Miranda silence)
State v. Plourde, 208 Conn. 455 (discusses Doyle and due process concerns)
State v. Walker, 206 Conn. 300 (pre-arrest silence admissible when one would naturally speak)
State v. Golding, 213 Conn. 233 (standards for appellate review of unpreserved constitutional claims)
State v. Williams, 204 Conn. 523 (factors for assessing prosecutorial impropriety and trial fairness)
State v. Grant, 286 Conn. 499 (test for comments on defendant’s failure to testify)
State v. Bell, 283 Conn. 748 (permitting jurors to infer from how a reasonable person would act)
State v. Stevenson, 269 Conn. 563 (framework for reviewing prosecutorial misconduct claims)
State v. Rowe, 279 Conn. 139 (argument based on evidence in record not improper)
State v. Ciullo, 314 Conn. 28 (permissible credibility arguments from evidence)