18 Conn. App. 134 | Conn. App. Ct. | 1989
The defendant was convicted, after a jury trial, of the crime of sexual assault in the first degree, General Statutes § SSaAO.
The jury could reasonably have found the following facts. During the evening of September 22, 1986, the defendant and Doe,
In his first claim of error, the defendant contends that the trial court erred in overruling his objection that the testimony of a state’s witness was hearsay and in admitting that testimony as evidence of an “admission by silence” by the defendant. The following facts are relevant to this claim. During its case-in-chief, the state called Officer Cheryl Canino of the Hartford police department as a witness. Canino testified that, during the early morning hours of September 23, 1986, she was dispatched to the rear of the Vine Street School to investigate a report of a woman screaming. Canino testified that, upon her arrival at the school, she observed a male and a female standing some distance away and began to approach them. In response to a question by the prosecutor, Canino began to testify that, as she approached the two individuals, she heard the female speaking to the male. The defendant interrupted, objecting that the testimony was hearsay. In an offer of proof conducted outside the presence of the jury, Canino testified that, as she approached the two individuals, she heard the victim repeatedly saying to the defendant, “Why did the both of you do this to me?” She further testified that the defendant did not respond to the victim’s statements. The defendant argued that Canino’s testimony regarding what she heard the victim say was hearsay. The state responded that Canino’s testimony about the victim’s statements to the defendant and the defendant’s failure to reply was admissible to establish an admission by conduct. The defendant countered that the admission into evidence of testimony
The defendant concedes on appeal that his choice to refrain from responding to the victim’s accusatory statements is not protected under either the United States constitution or the Connecticut constitution.
The rule in Connecticut is that when a statement, accusatory in nature, made in the presence and hearing of an accused, is not denied or explained by him, it may be received into evidence as an admission on his part. State v. Leecan, 198 Conn. 517, 522, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Cook, 174 Conn. 73, 76, 381 A.2d 563 (1977); State v. Yochelman, 107 Conn. 148, 152, 139 A. 632 (1927). Evidence of silence in the
The strength of the inference that the defendant’s silence imports acquiescence in the truth of an accusatory statement depends upon the circumstances surrounding the making of the statement. “Recognizing that, at its best, the doctrine of assenting silence brings about the weakest assumption known to the law”; 29 Am. Jur. 2d 692, Evidence § 638; many state courts have imposed conditions upon the introduction of evidence that an alleged admission by silence has occurred. C. McCormick, Evidence (3d Ed.) § 160. Some state courts have even barred entirely the introduction, in any criminal case, of evidence of a defendant’s silence, reasoning, in part, that the inference of assent was too unreliable. See, e.g., State v. Kelsey, 201 N.W.2d 921, 927 (Iowa 1972); Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967). The doctrine has also been criticized by commentators. See C. Gamble, “The Tacit Admission Rule: Unreliable and Unconstitutional — A Doctrine Ripe for Abandonment,” 14 Ga. L. Rev. 27 (1979); Note, “Tacit Criminal Admissions,” 112 U. Pa. L. Rev. 210 (1963).
Our Supreme Court has joined other state courts in developing standards governing the admissibility of evidence of a defendant’s prearrest silence in the face of accusation. The trial judge must decide, as a preliminary matter, whether proffered evidence of the defendant’s silence in the face of accusation is, under the circumstances, sufficiently probative of assent by the
In reviewing the trial court’s decision to admit Canino’s testimony, we note that, ordinarily, the trial court’s rulings on the admissibility of evidence are accorded great deference and will be disturbed on appeal only upon a showing of clear abuse of discretion. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 222, 544 A.2d 623 (1988); State v. Erhardt, 17 Conn. App. 359, 553 A.2d 188 (1989). We consider, therefore, whether the trial court could reasonably have concluded, on the basis of the evidence before it, that the fact of the defendant’s silence was sufficiently probative of assent to an accusatory statement to permit its admission into evidence as an admission by silence.
At the time the trial court ruled on the admissibility of Canino’s testimony, the state had presented the testimony of only one other witness, the victim. Through the testimony of Canino and the victim, evidence of the following circumstances had been presented. The victim, in a state of extreme emotional upset, asked the defendant why he and Doe had done what they did to
We next consider whether, as argued by the defendant, the trial court should have refused to admit, as an
On the basis of the facts of this case, we decide that the trial court erred in permitting Canino to
Second, the evidence before the trial court was that, as the victim spoke the accusatory words, Canino, a police officer, was approaching the place where the victim and the defendant were standing, that the defendant was aware of this, and that Canino’s arrival and the victim’s completion of the accusatory statement were practically simultaneous. On these facts, we think the defendant’s failure to respond to the victim’s statement is equally likely to be attributable to distraction or apprehension occasioned by the impending arrival of a police officer; see People v. Conyers, supra; or to bewilderment or confusion, as to acquiescence in the truth of the accusatory statement. In short, in the particular circumstances involved in this case, the fact that the defendant remained silent was too unreliable as evidence of assent to the victim’s statement to be admissible as an admission by silence.
Although we find that the trial court erred in overruling the defendant’s hearsay objection and admitting, as an admission by silence, evidence of the defendant’s silence in the face of accusation, the question remains whether the error was harmful. The error in this case does not involve a constitutional violation. The burden is therefore on the defendant to demonstrate the harmfulness of the court’s error. State v. Harris, supra, 230; State v. Petterson, 17 Conn. App. 174, 183, 551 A.2d 763 (1988). “ ‘The defendant must show that it is more probable than not that the erroneous action of the court affected the result.’ ” State v. Petterson, supra, 183, quoting State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988). The defendant in his appellate brief essentially argues that “[a]ny admission by silence to [the] accusation had monumental effect in establishing [the
The defendant’s second claim is that the trial court erred in failing to instruct the jury that, in order to find the defendant guilty of sexual assault in the first degree under General Statutes § 53a-70, it had to decide unanimously which of two statutorily designated acts necessary to constitute the offense the defendant had committed. The defendant asserts that that failure violated his right to a unanimous jury verdict in a trial by a six-member jury under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution because the jurors could have believed that they could find him guilty even if they did not unanimously agree on which act the defendant committed.
The defendant neither submitted a request to charge nor excepted to the charge given by the trial court. Generally, this court will not consider claims of error relating to the trial court’s charge to the jury where no request to charge was submitted and no exception was taken to the charge as given. Practice Book §§ 854, 4185; State v. Benite, 6 Conn. App. 667, 670, 507 A.2d 478 (1986). The defendant requests review, however,
The state charged the defendant by substitute information with sexual assault in the first degree, in violation of General Statutes § 53a-70 (a), alleging that the defendant “compelled the victim to engage in sexual intercourse by the use of force and the threat of use of force . ” (Emphasis added.) At trial, the court charged the jurors that, in order to find the defendant guilty of sexual assault in the first degree, they must find that the state had proved beyond a reasonable doubt that “the defendant compelled the victim to engage in . . . sexual intercourse, either by the use of force or by the threat of the use of force.” (Emphasis added.) The court later instructed the jurors that they must render a unanimous verdict. The court did not instruct the jurors that they could only find the defendant guilty if they could unanimously agree on which method of compulsion — use of force or threat of use of force — the defendant used. The defendant argues that the court’s failure to charge the jurors that they had to agree unanimously in this regard permitted them to convict the defendant even if all jurors did not agree on the means by which the defendant compelled the victim to engage in sexual intercourse.
The defendant’s final claim is that the trial court erred in permitting the state’s attorney improperly to “[inject] into argument the notion that someone was either lying or committing perjury.” The defendant points to six remarks made by the state’s attorney during final argument,
The defendant made no objection to the prosecutor’s remarks either during or after the argument and requested no curative charge. Where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. State v. Chace, 199 Conn. 102, 108, 505 A.2d 712 (1986); State v. Tyler-Barcomb, 197 Conn. 666, 673, 500 A.2d 1324 (1985). Where counsel fails to object or to request a curative charge, “ ‘we have presumed that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized.’ State v. Lubesky, [195 Conn. 475, 484, 488 A.2d 1239 (1985)]; State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983).” State v. Chace, supra.
The defendant claims review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Our Supreme Court has reviewed claims of prosecutorial misconduct under State v. Evans, supra, where the defendant raised a claim, adequately supported by the record, that he clearly has been deprived of a fundamental constitutional right and a fair trial. State v. Williams, 204 Conn. 523, 536, 529 A.2d 653 (1987); State v. Findlay, 198 Conn. 328, 344, 502 A.2d 921, cert. denied, 476 U.S.
Our review of the record in this case leads us to conclude that review under Evans of the defendant’s claim is not warranted. The defendant has pointed to six remarks made by the prosecutor during closing argument. No pattern of conduct repeated throughout the trial is evident; rather, the claimed misconduct consists only of isolated and brief remarks which have no blatantly egregious import. The defendant’s claim of pros-ecutorial misconduct is not adequately supported by the record. Accordingly, we conclude that the defendant has failed to raise a claim, adequately supported by the record, that misconduct by the prosecutor caused him to be deprived of a fundamental constitutional right and a fair trial, and we therefore decline to review the defendant’s claim under Evans.
There is no error.
In this opinion the other judges concurred.
“[General Statutes] Sec. 53a-70. sexual assault in the first degree: CLASS B FELONY: ONE YEAR NOT SUSPENDABLE. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.
“(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”
“Doe” is a pseudonym. Both the victim and the defendant testified that they did not know the man’s name, and he has never been identified. At trial, the parties referred to this individual as “Mr. X.”
The jury acquitted the defendant of the conspiracy and unlawful restraint charges.
See Jenkins v. Anderson, 447 U.S. 231, 235, 100 S. Ct. 2124, 65 L. Ed. 2d 2486 (1980); Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); State v. Shashaty, 205 Conn. 39, 48-49, 529 A.2d 1308, cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988); State v. Leecan, 198 Conn. 517, 522, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).
The victim testified on direct examination as follows:
“Q. And after you got up did you say anything to the Defendant?
“A. Yes.
“Q. What was that?
“A. I said to him why did you both all have to do this to me. Why did you all do this to — do it to me.
“Q. And what was your emotional state at that particular time, if you recall?
“A. I was very, very emotional.”
During the offer of proof, Officer Canino testified on questioning by the prosecutor as follows:
“Q. Officer Canino, you testified that as you approached the victim who was later identified as Miss H and the Defendant Mr. Daniels you overheard the female victim say something to Mr. Daniels, is that correct?
“A. Correct.
“Q. What did you hear the victim say to Mr. Daniels as you approached them? . . .
“A: Can I continue? Why did the both of you do this to me?
“Q. Could you please say that again?
“A: Why did the both of you do this to me?
“Q. And did she say that once or more than once?
“A. She kept repeating herself.”
The victim testified on direct examination:
“Q. . . . Did you get up off the ground?
“A. Yes.
“Q. And did the Defendant get up off the ground?
“A. Well, yes. When the cops came we was standing up.”
Canino testified during the offer of proof:
“Q. How far were you from the young lady when she said this?
“A. Well, I was — I was still moving as she was saying this, so by the time that the statement was finished, the first time I’ll say one to two feet.”
Canino testified during the offer of proof:
“Q. And when you shone — shined the flashlight or spotlight on these two parties, could you make out who they were in terms of male, female, black, white?
“Q. And what at that point did you do, if anything?
“A. Okay. They didn’t know what had happened. The female was — her . back was toward me so she didn’t — she didn’t see me come up. He saw and so I just — I walked over there.”
We decline to undertake an analysis of whether the defendant’s rights under article first, § 8, of the Connecticut constitution were violated because the defendant offers no separate analysis of the Connecticut constitution as a basis for different treatment of the federal and state claims. See State v. Bowden, 15 Conn. App. 539, 543, 545 A.2d 591, cert. denied, 209 Conn. 810, 548 A.2d 438 (1988).
The defendant outlines the offending remarks in his brief as follows: “First in its opening statement, the State argued that the defendant’s testimony showed either that he was mistaken through lack of memory or that he was lying. . . . Then, when commenting on the defendant’s argument, which merely called attention to the inconsistencies amongst the State’s own witnesses and never once called any of them liars, the State wrongfully characterized Mr. Gold as having called Miss H drunk, lying or mistaken. . . . Then the State asked why Miss H would want to perjure herself. . . . The State again tried to make the jury think that Mr. Gold