7 Conn. App. 292 | Conn. App. Ct. | 1986
The defendant, an antique dealer, is appealing from the judgment of conviction, after a jury trial, of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2). His conviction was based on the receipt and retention of a stolen diamond ring. During the trial the defendant did not take the witness stand to testify in his own behalf. On appeal, he claims that remarks made by the assistant state’s attorney during closing argument violated his rights as secured by the fifth and fourteenth amendments to the United States constitution, resulting in an unfair trial.
The assistant state’s attorney who prosecuted the defendant commented on the failure of either the defendant’s attorney or the defendant himself to “tell” or “explain” certain events several times during the course of his closing argument to the jury. The assistant state’s attorney’s remarks that are in issue were as follows: “Why wouldn’t [the defendant] tell the police the name of the person that he knew [was] involved in this investigation . . . “First thing he did with the police ... on the date of the seizure of the ring was refuse to divulge the name of the person that was involved . . . “Mr. Watstein’s [the defendant’s trial counsel] argument [,] did you ever hear him explain why the thieves picked this man’s house or why the
The right of the accused not to take the stand is his constitutional privilege against compulsory self-incrimination. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); State v. Anonymous (1976-4), 33 Conn. Sup. 505, 507, 356 A.2d 187 (1976). Comment by the prosecuting attorney or the court on the defendant’s failure to testify is prohibited by the fifth amendment to the federal constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965). The Connecticut legislature has recognized and affirmed this right in adopting General Statutes § 54-84 (a) which reads in part: “(a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused, party to testify shall not he commented upon hy the court or prosecuting official . . . .”
An analysis of the assistant state’s attorney’s remarks, regardless of the language in which they were couched, clearly shows that they pointed to the defendant as the only person who could supply the explanations and answers to the questions which the prosecutor posed to the jury. What the state’s attorney cannot do directly, he must not do indirectly in abridgement of an accused’s fundamental right to a fair trial. The remarks of the assistant state’s attorney were prejudicial to the defendant and transgressed his privilege against self-incrimination and right to a fair trial.
Because our holding on the defendant’s second claim of error is dispositive of this appeal, we need not discuss the defendant’s first claim except to admonish the state’s attorney who may retry the case that he or she be more circumspect and be guided by the holdings of State v. Pelletier, 196 Conn. 32, 490 A.2d 515 (1985) and State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985) insofar as they deal with the measure of restraint required of a prosecutor in his argument to the jury.
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.
Although several issues were raised in the defendant’s original and amended preliminary statements of issues, we discuss only those issues
Prior to the enactment of Public Acts 1977, No. 77-360, General Statutes (Rev. to 1977) § 54-84 (now § 54-84 [a]) read in part: “The neglect or refusal of an accused party to testify shall not be commented upon to the court or jury.”