State v. Briggs

Branham, State In Per Curiam.

368 A.2d 63 held that in the (1976), we absence accused is controlling statutory an provisions1 entitled to an instruction that no adverse jury inferences are to be from his tes drawn failure to tify his own defense. The defendant in this case reexamine and overrule Branham. asks us to The most recent the United States expression Lakeside Supreme subject Court this appears Oregon, Ed. 2d U.S. S. Ct. 55 L. in that or in cases (1978). Nothing case other cited by the defendant us to his brief persuades come to a different conclusion.

There is no error. Briggs of Connecticut v. Linwood H. J., C.

Cotter, Loiselle, Bogdanski, Peters Js. Healey, 1Since the trial of this case General Statutes 54-84 been § has amended to read, pertinent part, “(b) as follows: Unless the requests accused otherwise, they the court shall jury instruct the may draw no unfavorable inferences from the accused's failure testify. . . ." 18, 1979 Argued December October 3 decision released defender, Gottlieb, assistant public Suzanne Z. for the appellant (defendant).

Richard state’s Jacobson, attorney, F. assistant Browne, A. on the Donald whom, brief, were state’s Galluzzo, Domenick assistant attorney, state’s for the attorney, appellee (state). C. The after J. defendant was convicted

Cotter, a trial to a in the jury degree second kidnapping in violation 53a-94 of General Statutes sexual (a), § assault first degree in violation of Gen- eral Statutes 53a-70 two counts (a), §

public indecency in violation of General Statutes (a) (2). judgment § 53a-186 From the rendered on appealed. the verdict has jury From the evidence the could have found following morning facts: On the of June standing the defendant was next a borrowed green parked up, appar- ear that was with its hood ently grassy adjoining on the disabled, area ramp Parkway entrance to the Merritt in Trumbull. approximately day, separate At 9 a.m. that on two stepped the defendant out occasions, from in front green exposed of the car and himself to women they passing drivers two cars as were the defend- proceeding ramp. ant while down entrance Shortly passed, after those two ears had a third ramp, woman driver entered the same entrance also approximately at green 9 a.m., noticed the ear with up its hood and observed the who was defendant, longer exposing waving no appar- himself, her to ently get in stopped an effort to assistance. She give gas her ear and offered to him ride a to sta- getting grabbed tion. After in the car, he her arm and acted in an obscene manner. The driver said going stop that put she was to the car to out him they got and he said no. When to the exit, forcibly pulled operator defendant the woman over passenger’s to position seat and took her behind the wheel, covered her mouth with her and hand told her not to scream. Then he drove several miles, finally parking the automobile near a secluded Briggs forcibly wooded pulled area. the victim out car, took her into the wooded area several feet from the automobile and forced her to have sexual intercourse with grabbed him. Thereafter he her purse looking for identification and found her address on Briggs her driver’s license. her drove got Ms car to back to where out told her easy He her that leave. also told her address was anyone to she remember that should not tell something happen about what had occurred or would to her. first

The defendant’s claim of error relates adduced on state the cross- Briggs, examination of Christine the defendant’s prin- common-law who was wife, cipal alibi witness. On direct examination, Christine Briggs testified June 8,1977, she, the defend- nephew Gary and his ant, arrived at the Crooks Bridgeport approximately Center at a.m. 9:05 they stamps, order obtain food and afterwards arriving drove Stamford, at there 10:15 in morning. questioned On cross-examination, the state regarding purpose going her to Stamford. they gone The witness testified that had to a court- house Stamford because the an defendant had appointment there. When asked the reason for the appointment, testify, the witness was allowed to objection, over the appointment that the charge was disorderly in connection awith conduct lodged against that had been the defendant. argues appeal

The defendant now his that testimony common-law wife’s on cross-examination regarding prior his misconduct was inadmissible it because impeach could not have been used to his yet since he had testified and the evi- dence any recog- could not come within of the other exceptions general nized rule that evidence of the defendant’s character is inadmissible. See State v. Barlow, 177 Conn. 418 391, 393, 46; A.2d State v. Zdanis, 173 Conn. A.2d 189, 377 State 275; v. Carr, 172 Conn. 458, 374 A.2d 1107. The tran-

832

script that defendant failed however, discloses, objection at this as the basis for his make claim at that the trial. stated trial evidence Rather, Any appeal was be limited to irrelevant. will authority ground once counsel states the asserted ground objection. his v. 176 Adams, State 74, 406 v. 172 Conn. 1; Rado, Conn. A.2d State 138, 352 372 v. 166 Conn. 159; Johnson, 439, A.2d State A.2d 125 Co., Borucki v. MacKensie Bros. Conn. 294; can and will consider 92, A.2d This court has not been or that claim, otherwise, constitutional only in most decided in the trial raised and court exceptional Rogers, 177 circumstances. supra; New Adams, Conn. v. 50; A.2d State Valley Savings Conn. Investors, Haven Bank v. v. 165 Conn. 321; Evans, A.2d Despite claims to A.2d 576. contrary, does not indicate record “clearly deprived of a fundamental defendant was by required right a fair trial” as constitutional or only concerning testi- Evans. The the wife’s issue ruling mony trial court correct is whether the was that the evidence relevant. relevancy precise fur-

No test is or universal if evidence adduced on cross- nished the law and any degree reasonable examination conduces probability improbability establish controversy, Delmore fact should admitted. it be Polinsky, Plumb 349; 42 A.2d 28, 31, 33 A. 998. Evidence Curtis, 154, 166, prove any tendency has in reason to relevant if it any consequence disputed disprove fact that is of People v. in to a of the matter issue. determination Rptr. App. The 319, 3d 96 Cal. Hill, 19 Cal. deciding rele- trial has broad discretion court

333 vaney pertains of evidence as it to cross-examination appeal appellant and on has the burden of estab- lishing ruling there has been an erroneous probably which was Jones, harmful to him. State 167 Conn. scope 228, 232, A.2d 95. The cross-examination in a criminal trial is a matter properly left to the sound discretion of the trial court; United States v. 413 E.2d 950 Evanchik, (2d Cir.); although and as a rule the extent of cross- examination is within the trial court’s discretion liberally it should be allowed. State v. Reed, Every Conn. pre- 287, 299, A.2d 243. reasonable sumption given should be in favor of the correctness ruling of the determining court’s whether there has been an required abuse of discretion. Reversal is only injustice appears where an to have occurred. State v. Martin, 170 Conn. 365 A.2d 104; Brown, 364 A.2d 692, 702, 186. The questions asked the state on the cross- Briggs clearly examination of Christine were aimed testing memory, at her credibility. recollection and Vegiard, Hirsch v. 137 Conn. A.2d 85. 302, 304, 77 proposes aWhere defendant an alibi as his defense, permissible one determining method of whether inquire alibi specific was fabricated is to into the surrounding details and the circumstances of the alibi on attempt cross-examination in an to show testimony inconsistencies of the various alibi subject witnesses, since the claim of alibi searching scrutiny. Brady, 244 Minn. 461, 449. To N.W.2d the extent that the evidence prejudice tended to it defendant, was for the trial judicial court, the exercise of discretion, decide probative whether the value of the out- weighed prejudice likely to result its from admission. State v. Turcio, 116, 129, vigorous of the necessity In light

A.2d 749. say cannot of an alibi we witness, cross-examination abused its discretion. that the trial court in this appeal The defendant’s contention principal erred in prose trial court permitting is that into the circumstances cutor to inquire See to his arrest. subsequent defendant’s Doyle Ed. 49 L. 96 S. Ct. U.S. Ohio, 426 Cook, 91; A.2d 2d silence was per as Questioning the state’s cross-examination mitted during examina in the course of the direct defendant1 and Michael Officer tion of the state’s rebuttal witness, Savino.2 telling you gone “Q. you police that had Did ever recall officer on June 8th?

to court in Stamford A. Yes. Q. told him You that? Yes, I A. did. you that were you June 15th Q. police ever tell the Did officer morning? from 6:45 in the home to 8:55 Objection, Your Spear Eugene Spear, defense Mr. counsel]: [E. any statements scope, if there is so-called Honor. Outside I motion. ask to us under our police officers, it never revealed it be excluded. exception was [Objection was overruled taken.] anything. nothing. Not No, A. I told them never wearing pants, red T-shirt Q. you you red Did that were tell them on June— sneakers, at 6:15 jacket, white, and blue and blue red nothing. police I did officer A. not tell the you your wife Q. you that to court with Did ever tell them went and Kareen? A. Pardon me? your wife Q. you you to court with Did them that went ever tell boy?

and Kareen —the I cut it. started a but Well, A. I almost conversation started —I you at the Q. time arrived you police officer what Did ever tell the court Stamford? nothing.” police A. I officer did not tell the you give rights, 2“Q. you him of his did And after advised 8th of any respect to on June information his whereabouts 1977?

As it should he noted matter, a preliminary con- of a violation assertion for not right properly preserved stitutional was however, adequately supports The record, appeal. funda- of a deprived that the defendant was a claim that his claims so right mental constitutional will first time on raised for the appeal, albeit error, A.2d Zeko, he reviewed. State v. v. Evans, supra. State 917; State v. Cook, supra; accused been when an recognized It has long him to reply in “our the right law accords custody, His or or to remain silent. statement, to question in be laid cannot silence under such circumstances Ferrone, Conn. him.” against evidence in court only tell us was that he was A. The information he would on June 8th. you Q. he tell he was court? Did what time No, A. he didn’t. you judge— Q. tell Did he what Your Eugene Objection, Spear Spear, Mr. defense [E. counsel]: his tell, Briggs said didn’t not rebuttal. Mr. he Honor. That’s That’s nothing, except he in court. were, I didn’t tell was words not rebuttal evidence. to ask Galluzzo, for the I want Mr. Galluzzo [Domenick state]: him what time he arrived in court. I’ll The Court: allow that. tell him. Spear:

Mr. The officer said he didn’t get asking. I answer. So didn’t Mr. Galluzzo: I’m exception [Objection no was overruled and taken.] By The Court: Q. he arrived in court? What time did he said A. He didn’t tell me. By Mr. Galluzzo: Q. you Did ask him?

A. Yes. short time [A later.] respect conversa- report Q. anything your Is there Briggs? you Mr. tion had with her or with Yes, there is. A. Q. may that, please? I And see give state- he said. Refused accused, A. This is the and what ment.” supra; 3 336; 116 A. State v.

258, 266, Cook, (13th Ed.) § This Criminal Evidence Wharton, requirement mandate was raised to a constitutional Doyle supra, where Ohio, the United States Supreme post- Court held that constitutionally warning may Miranda prosecution be used either for substantive impeachment purposes. trial court erred Thus, the develop testimony allowing prosecution regarding the been defendant’s silence after had given warning. supra; Cook, the Miranda State v. Ralls, 356 A.2d 147. This does not conclude the for issue, the United States Supreme recognized Doyle supra, Ohio, Court v. may that in certain such a violation circumstances, warranting be harmless error not reversal. See supra, also State Zeko, v. in which a unanimous recognized applicability court also the of the doc trine of harmless error in circumstances such as existing present those in the case.

In we reviewed Zeko, federal court decisions and adopted the standards enunciated therein for the proper determination of harmless error under cir present cumstances similar to the case. “Those ‘ applied [w] courts have the rule that hen there is single but a reference at trial to the fact defend repeated ant’s silence, the reference is neither nor exculpatory story, linked with defendant’s and exculpatory story transparently frivolous and guilt overwhelming, evidence of is otherwise reference to defendant’s silence constitutes harm Chapman less error.’ v. United F.2d States, 547 (5th Cir.), 1240, 1250 denied, cert. 431 908, U.S. (1977); S. Ct. 52 L. Ed. Cox, 2d 393 Leake v. (4th 1970). F.2d Cir. The rule has similarly applied prosecutor been where a does not highlight upon silence the defendant’s focus closing remarks and his cross-examination not strike at prosecutor’s do comments where the story. States ‘jugular’ United the defendant’s 1977)]; (5th see [546 Cir. F.2d v. Davis (5th Harp, Cir. 536 F.2d States v. United supra, 1976.)” Zeko, entirety, in its the trial in relation to viewed When period of witnesses over involved eleven which days, not so several prosecutor “highlighted” by to constitute as supra. prejudicial Nor Zeko, error. See State at comments “struck it be can said jugular” The defend- defense. of the defendant’s independent witnesses three ant was identified ramp present on the the entrance as the side of ample oppor- morning question. The victim had tunity facial familiar to become array positively him from an identified features and attempt- again photographs In once court. ing offered the defendant alibi, to establish his having only a clear witnesses, three all the record does Furthermore, in his favor. bias that the claim, does not and the defendant indicate, prosecutor silence reference to the defendant’s made any jury closing nor was there to the in his remarks jury they suggestion inference draw an that guilt silence. See from the defendant’s recognize, supra. as to Zeko, This court continues (p. 558), of ‘harm- in that the “infusion stated Zeko exception.” Under lessness’ error must be the into find that the facts of we case, however, this regarding allowing testimony defend- in error post-Miranda warning was harmless ant’s beyond a reasonable doubt.

338

Lastly, the defendant claims error in the denial by the trial court of the defendant’s motion for acquittal charge kidnapping the second degree.3 urges adopt The defendant us to merger People Levy, 159, doctrine of v. 15 N.Y.2d cert. 793, denied, 938, N.Y.S.2d U.S. progeny4 S. Ct. L. Ed. 2d and its 1770,14 701, which preclude prosecution kidnapping would for a “merely which is incidental” to the assault. sexual Recognizing accepted that this court has not merger doctrine in v. Chetcuti, Conn. attempts distinguish 377 A.2d 263, the defendant to present may that case from the one so we recon merger sider the doctrine. The basis of the distinc tion is that in Chetcuti the defendant was convicted kidnapping degree, in the first whereas in the present case the defendant was convicted degree. second We find no merit in this distinction. recently argu This court considered ment in State v. Lee, 335, 417 A.2d 354 and State v. DeWitt, 419 A.2d 861 may where we held that the defendant be convicted kidnapping degree in the second in addition to robbery though a conviction for even the eon- 3Kidnapping in degree the second is defined as the restraint of person another prevent with intent to by (a) his liberation either secreting holding or place him in likely a where he is not be (b) using found or threatening or physical to use force or intimida tion. (a) Sections 53a-94 (2) and 53a-91 of the General Statutes. (1) Section 53a-91 of the General Statutes “restrain” defines as person’s “to restrict a intentionally movements unlawfully such a manner as to substantially interfere liberty by with his mov ing him from place one another, confining him either in the place where the restriction place commences or to which he has moved, been without consent.” 4 People Cassidy, N.Y.2d 45; People 390 N.Y.S.2d Lombardi, 20 N.Y.2d 519; 282 N.Y.S.2d see also 43 A.L.R.3d 699 for a discussion of the relationship of kidnapping to other crimes. long as grew conduct as the same out of victions beyond prove, reasonable a the was able state crime. each elements of the essential all doubt, distinct or more “[W]here two the elements prosecution act, in the same are combined offenses prosecution the State for other. for one will bar v. A.2d State 95; Dubina, 95, 100, v. State A.2d 697.” 430, 162 Fico, required supra, intent the Chetcuti, v. 169. Where degree kidnapping in the second to constitute a underlying present, perpetrator’s the “the fact that consummation motive for detention is preclude . a conviction another crime . . does not supra, kidnapping.” Lee, for v. State given in a case the essential elements Whether proven beyond kidnapping doubt reasonable are a jury. supra; question Lee, is a for the although present supra. In Chetcuti, case initially invited into the victim’s defendant was forcibly the auto car, he thereafter took control of pulled forcibly miles, mobile and drove several area, victim from car and the wooded into On forced her have sexual intercourse with him. reasonably jury these facts, could have concluded that the victim was that the restraint restrained and accompanied by required the intent to constitute kidnapping degree. in the second no

There is error. opinion In this Js., Loiselle, Healey, Peters concurred. (dissenting). J. The United States

Bogdanski, Supreme Doyle Court in Ohio, U.S. (1976), 2d 91

S. Ct. L. Ed. held that the due process clause of fourteenth amendment forbids post-arrest,

the use of a evidence post-Miranda warnings prosecution silence the impeachment purposes. for The basis for that deci- “every post-arrest sion twofold. is First, silence is insolubly ambiguous because of what the State is required person to advise the arrested.” 617. Id., secondly, implicit And view assurance warnings inherent the Miranda silence will that carry penalty, fundamentally no “it be would unfair deprivation process and a due to allow the person’s impeach arrested to be used to an explanation subsequently offered at trial.” Id., applied Doyle court

This Cook, (1977), A.2d 563 and ordered a new “[o]n trial because the state’s cross-examination, attorney why asked the defendant he not fur- had nished the state with his alibi at of his the time arrest Id., or thereafter.” 75. Those same circum- present exist in stances case and result should be the same. comprehend propriety

To of the harmless respect error rule with to a violation of constitu- tional dimensions, reference must be to Mr. made Justice White’s concurrence United States Hale, 422 U.S. 95 S. Ct. 45 L. Ed. 2d (1975). Mr. White noted that Justice when a person rights under arrest informed of his as requires, comport Miranda “it with does due process permit prosecution during to the trial to to at time of call attention his silence arrest speak insist that because did not about of the facts case at that he was told he time, as might do, need not an unfavorable inference be testimony. drawn to the truth his Id., as trial 182-83. dealing an intru-

It is that when axiomatic rights accused, of an sion into constitutional required the con- is not show “the accused the state rather, was harmful; stitutional error beyond reasonable a must that it was harmless show 377 339, State, 334, Aillon v. doubt.” Chapman (1977); 386 U.S. v. California, A.2d 1087 (1967). Indeed, L. 2d Ed. 87 Ct. S. possibility an such a for the state to eliminate easy task. requiring clearly presents

This a situation case prof finding alibi defense of reversible error. The by undeniably by assailed fered the defendant was prosecutor’s impermissible repeated, references the cumu harmful, The to the silence of the defendant. prosecutor by the of these references lative effect to the defendant’s The references is incalculable.1 impli the of the defense; to heart silence went the The fabricated. the defense was cation was that hardly and the brief isolated references were may prejudice well status assume likelihood certainty. Surely was aware of state very subsequent knew well to his arrest and cross-examination answers on what its witness, would the answers of own be, as well as It the defendant was was the contention the defense company near the seene of of his wife was nowhere alleged initially by Briggs Christine crimes. This alibi asserted state, The the defendant when he testified. corroborated however, sought subsequent to impeach why to to this as police his provided arrest information of his he had not questions prosecutor posed eight on whereabouts June 1977. The defendant, all what said of which were directed towards response to all of after his arrest. The of the defendant’s essence questions asserting privilege silent, was that he remained his those the fifth under amendment.

Officer Michael Savino, direct As examination. Impson, noted in United States 531 F.2d (5th 1976), logical “[t]he conclusion Cir. is that prosecutor’s] only purpose [the putting ques- jury bring tion was to before the the fact of the prosecution’s questions defendant’s silence.” The exposing were directed at the defendant’s silence purpose casting for the doubt on his defense. contrary Such conduct has been held to be judicial process. People maintenance of a sound See App. v. Norris, 74 Mich. 253 N.W.2d 767 361, 367, (1977). expansion

The continued of the harmless error encourage prosecutors get rule will such evidence they they strong in, since know that if have a case such will not be considered to be rever People sible App. error. See v. Jablonshi, 38 Mich. (1972). 33, 39, 195N.W.2d 777 I therefore dissent and would order a new trial. B. O’Rourke City John et al. v. al. Stamford et C. Cotter, J., Loiselle, Bogdanski, Healey, Peters Js.

Case Details

Case Name: State v. Briggs

Court Name: Supreme Court of Connecticut

Date Published: Dec 18, 1979

Citation: 426 A.2d 298

Court Abbreviation: Conn.