152 Conn.App. 682
Conn. App. Ct.2014Background
- On April 18, 2010, victim was robbed and cut; defendant (Luther) stood nearby holding a gun; both Luther and Raymond Lee Smokes were later detained and identified by the victim.
- Police found a red jacket, two cell phones (one containing contacts tying it to Luther), and a firearm along the route the suspects fled; DNA on the gun could not exclude Luther.
- Luther testified at trial with an exculpatory account (e.g., fleeing because of panic, victim/Smokes dynamics); before trial he gave multiple inconsistent accounts to internal affairs sergeants while complaining of excessive force/Taser use.
- At trial the state impeached Luther by cross-examining him about those prior inconsistent versions (including omissions) obtained post-Miranda.
- Luther sought to call Smokes as a defense witness; Smokes, on counsel’s advice, invoked the Fifth Amendment and refused to testify. The trial court allowed the invocation, citing possible future prosecution (including conspiracy), despite prior nolle prosequi entries in Smokes’ plea proceedings.
- Luther was convicted of criminal possession of a firearm, carrying a pistol without a permit, and interfering with an officer; on appeal he raised (1) improper impeachment by reference to post-Miranda silence and (2) improper allowance of Smokes’ invocation of the Fifth.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Luther) | Held |
|---|---|---|---|
| Whether cross-examination about inconsistent statements given post-Miranda violated Doyle due process rule | Impeachment by prior inconsistent statements is permitted under Anderson exception where defendant voluntarily spoke to police post‑Miranda about the same subject matter | Use of post‑Miranda statements to impeach draws impermissible inference from silence and violated due process | Court held impeachment was proper: Luther voluntarily spoke to investigators and waived silence as to that subject matter; Anderson exception applies |
| Whether the content of Luther’s statements to internal affairs was admissible (omissions count as inconsistency) | Omissions and changes that naturally would have been included are usable to show inconsistency for impeachment | Statements were made in internal affairs context and it was unfair to use them to impeach; jury was not told it was an internal investigation | Court held inconsistencies (including omissions that naturally would be mentioned) were admissible; trial court did not abuse discretion |
| Whether Smokes could properly invoke Fifth Amendment and refuse to testify | Permit invocation because testimony could possibly expose Smokes to future prosecution (e.g., conspiracy or reopened assault counts) | Luther argued double jeopardy and plea/nolle entries preclude further prosecution, so Smokes’ testimony would not be incriminating; court should have required voir dire to test privilege claims | Court held trial court did not abuse discretion: possibility of prosecution (conspiracy or reopened counts) existed; invocation allowed; record inadequate to show voir dire denial was error |
| Whether double jeopardy barred future prosecution such that Fifth privilege could not be invoked | N/A | Double jeopardy and nolle prosequi entries prevent future prosecution; thus invocation unnecessary | Court rejected defendant’s double jeopardy claim as speculative — conspiracy is a separate offense and nolle prosequi does not bar recharging within statutory period; possibility of prosecution exists |
Key Cases Cited
- Doyle v. Ohio, 426 U.S. 610 (1976) (post‑Miranda silence cannot be used to impeach because warnings imply silence will carry no penalty)
- Anderson v. Charles, 447 U.S. 404 (1980) (Doyle exception: prior inconsistent statements made after Miranda may be used to impeach)
- Miranda v. Arizona, 384 U.S. 436 (1966) (custodial interrogation requires Miranda warnings)
- Blockburger v. United States, 284 U.S. 299 (1932) (double jeopardy same‑offense test: each offense must require proof of an element the other does not)
- State v. Alston, 272 Conn. 432 (2005) (Connecticut recognition of Anderson exception permitting impeachment with post‑Miranda prior inconsistent statements)