STATE OF CONNECTICUT v. DOMINICK J. DEVITO
(AC 35815)
Gruendel, Prescott and Bishop, Js.
Argued March 5—officially released September 8, 2015
(Appeal from Superior Court, judicial district of Litchfield, geographical area number eighteen, Marano, J.)
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Mary A. Beattie, assigned counsel, for the appellant (defendant).
Sarah Hanna, assistant state‘s attorney, with whom, on the brief, were David S. Shepack, state‘s attorney, and Meredith Blake, special deputy assistant state‘s attorney, for the appellee (state).
Opinion
GRUENDEL, J. The defendant, Dominick J. Devito, appeals from the judgment of conviction, rendered after a jury trial, of one count of operating a motor vehicle while under the influence of intoxicating liquor or drug in violation of
The following facts reasonably could have been found by the jury at trial. At approximately 2 a.m., on August 21, 2011, Robert Hazen, Jr., a state trooper, was assisting Christopher Barone, another state trooper, in effecting a traffic stop on Route 44 in North Canaan. At the time, Hazen‘s marked police cruiser was parked on the side of the road, facing eastbound, with its overhead flashing lights activated. While assisting Barone, Hazen heard the sound of tires screeching. As he turned, he observed a dark sports utility vehicle, approximately seventy-five yards away, make an abrupt U-turn and then pull over to the side of the road. Hazen then proceeded to enter his car, make a U-turn, and drive his police cruiser to within two car lengths of the dark sports utility vehicle. Hazen testified that he was able to move his vehicle in less than one minute and only lost visual contact with the sports utility vehicle for a second or two.
Hazen then approached the vehicle and observed one occupant, the defendant,
While Hazen was performing the field sobriety tests, Joshua Holcombe, another state trooper, arrived at the scene to provide assistance. Holcombe testified that he arrived approximately ten minutes after the initial stop. When the defendant was placed under arrest, Holcombe spoke to him and could smell alcohol on his breath. Barone also arrived on the scene to provide assistance. He testified that he could not recall whether the defendant had spoken to him.
The defendant was transported to the state police barracks where Hazen, in his capacity as the arresting trooper, processed the defendant. Hazen advised the defendant of his Miranda rights and collected background information. He then proceeded to read the defendant a notice of his rights regarding submission to a breath test.3 After being notified of his rights, the defendant refused to submit to the test. The defendant was subsequently charged with one count of driving under the influence of intoxicating liquor and one count of driving with a suspended license. During this time, Barone assisted in processing the defendant, which included
The case was tried to a jury. Prior to the state‘s case-in-chief, the parties stipulated to the following fact: “[O]n August 21, 2011, the defendant‘s operator‘s license had been under suspension since June 29, 2011, for failing to appear for a hearing or trial in association with a non-alcohol related traffic summons.”
At trial, the primary issue in dispute was whether the defendant was the driver of the dark sports utility vehicle on the night in question. The defendant argued that Barone, Hazen, and Holcombe never observed the defendant operating the vehicle and, thus, the state could not establish that he had committed the offense. Further, the defendant presented the testimony of Blake Balaam, who testified that he had been the driver of the vehicle that night. Balaam testified that he and the defendant had worked together as chefs at a restaurant until around midnight. He further testified that, after work, he and the defendant went to Balaam‘s house “to play cards and hang out for a little bit.” Afterwards, Balaam drove the defendant back to his apartment. He testified that he usually drives the defendant home because the defendant has poor eyesight and has difficulty driving at night. He stated that, on the evening in question, consistent with his usual practice when driving the defendant, he drove the vehicle eastbound on Route 44, completed a U-turn, and parked it alongside the curb. Balaam also stated that he did not remember seeing any police cruisers on the road when he made the U-turn. He further testified that, after parking the vehicle, he placed the keys in the cup holder, exited the vehicle, and entered another vehicle driven by his girlfriend, who then drove away.
During the state‘s case-in-chief, the prosecutor asked Hazen, Barone, and Holcombe if they had observed any other vehicles parked or idling in the vicinity of the dark sports utility vehicle. Each state trooper affirmatively stated that they had not seen any other vehicle in the area. Hazen further testified that he observed only one occupant in the vehicle, which was the defendant. Hazen specifically noted that he had observed the dark sports utility vehicle continuously, with the exception of a few seconds when he turned his own vehicle around, and did not see another person exit the vehicle.
At the conclusion of trial, the jury returned a verdict of guilty on both counts and the court sentenced the defendant to two years incarceration, execution suspended after six months, and three years of probation.4 From this judgment, the defendant appeals.
I
We first consider the defendant‘s evidentiary claim. The defendant claims that his due process right to a fair trial was violated when the court improperly admitted testimony regarding his post-Miranda silence at the police station. Specifically, he argues that the “admission of evidence of post-Miranda silence violated his due process rights as guaranteed by the fourteenth amendment to the United States constitution in violation of Doyle v. Ohio, 426 U.S. 610, [96 S. Ct. 2240, 49 L. Ed. 2d 91] (1976) . . . .” We are not persuaded.
“In Doyle v. Ohio, [supra, 426 U.S. 610], the United States Supreme Court held that the impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process. The court based its holding in two considerations: First, it noted that silence in the wake of Miranda warnings is ‘insolubly ambiguous’ and consequently of little probative value. Second and more important, it observed that ‘while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person‘s silence to be used to impeach an explanation subsequently offered at trial.’ . . . The [United States Supreme Court] reaffirmed Doyle‘s reasoning in Wainwright v. Greenfield, 474 U.S. 284, 290, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986), in which it held that the defendant‘s silence following his arrest and receipt of Miranda warnings could not be used at trial to rebut his defense of insanity. The court reasoned: ‘The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. It is equally unfair to breach that promise by using silence to overcome a defendant‘s plea of insanity.‘” (Citation omitted.) State v. Plourde, 208 Conn. 455, 465-66, 545 A.2d 1071 (1988).
Although evidence of the defendant‘s post-Miranda silence is prohibited, the United States Supreme Court has concluded that evidence of the defendant‘s silence prior to the receipt of Miranda warnings does not violate due process. Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982). The court in Fletcher held that “[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that [admission of the defendant‘s silence] violates due process of law . . . .” Id., 607. In so concluding, the court quoted Jenkins v. Anderson, 447 U.S. 231, 239, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980), which stated: “Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact
During the trial, the prosecutor asked Hazen, Barone, and Holcombe whether the defendant had ever denied driving the vehicle during the course of the evening. Hazen5 and Holcombe6 each affirmatively stated that the defendant had never denied driving the vehicle.
Barone testified that he could not recall whether the defendant denied driving.7 On appeal, the defendant claims that these questions reasonably could have been understood by the jury as implicating his post-Miranda silence.
We begin by reviewing the testimony of Barone and Holcombe and conclude that the defendant is unable to establish a due process violation with regard to their testimony. Barone testified that he could not remember whether the defendant said he was not driving on the night in question, and, thus, there was no affirmative response to the prosecutor‘s inquiry and no admission of evidence regarding the defendant‘s silence. Holcombe testified only as to the events that transpired during the traffic stop. As the record establishes that the defendant was not read his Miranda rights until after he was arrested and transported to the state police barracks, Holcombe‘s testimony could not have implicated the defendant‘s post-Miranda silence.
We now consider Hazen‘s testimony on both direct and redirect examination.
Finally, we consider Hazen‘s testimony in response to the state‘s question during direct examination as to whether the defendant “ever directly denied driving the vehicle . . . .” The defendant contends that the question to Hazen could have been understood to encompass post-Miranda silence. Given the context in which the question was asked, however, it is more probable that it would have been understood to refer to the defendant‘s prearrest silence. Hazen‘s testimony was primarily focused on the defendant‘s conduct during the traffic stop. His only post-Miranda testimony related to the defendant‘s decision to forgo the breath test at the police station. Furthermore, the state‘s line of inquiry leading up to the question related only to the defendant‘s conduct at the scene rather than at the barracks. See State v. Jeffrey, 220 Conn. 698, 720-21, 601 A.2d 993 (1991) (defendant‘s claim failed third prong of Golding because, although question was ambiguous, it was more probable that question related to defendant‘s prearrest silence), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992). We therefore conclude that the defendant cannot prevail on his unpreserved claim of constitutional error because he has failed to demonstrate that an alleged constitutional violation existed.
II
The defendant next claims that the prosecutor engaged in impropriety, both during the trial as well as during closing argument. Specifically, the defendant claims that the prosecutor improperly (1) implicated his post-Miranda right to remain silent, (2) drew attention to the defendant‘s decision not to testify, (3) shifted the state‘s burden of proof to the defendant, (4) made a “golden rule” argument, (5) stated her personal opinion as to the defendant‘s guilt, (6) commented on information not in evidence, (7) misled the jury on two critical facts, and (8) commented on the defendant‘s alibi witness.
The applicable law governing claims of prosecutorial impropriety is well established. “[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step process. The two steps are separate and distinct: (1) whether [an impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived [the] defendant of his due process right to a fair trial. Put differently, [an impropriety is an impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question . . . .” (Internal quotation marks omitted.) State v. Andrews, 313 Conn. 266, 279, 96 A.3d 1199 (2014); see also State v. Stevenson, 269 Conn. 563, 572, 849 A.2d 626 (2004).
“To determine whether any improper conduct by the [prosecutor] violated the defendant‘s fair trial rights is predicated on the factors set forth in State v. Williams [204 Conn. 523, 540, 529 A.2d 653 (1987)], with due consideration of whether that misconduct was objected to at trial. . . . These factors include the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state‘s case.” (Citation omitted; internal quotation marks omitted.) State v. Felix R., 147 Conn. App. 206, 219, 83 A.3d 619 (2013), cert. granted on other grounds, 311 Conn. 915, 84 A.3d 883 (2014).8
A
The defendant first argues that the prosecutor committed impropriety, during the trial and at closing argument, when she implicated the defendant‘s post-Miranda right to remain silent. We disagree.
We begin by analyzing the defendant‘s claim regarding the prosecutor‘s questions during trial. In part I of this opinion, we concluded that the defendant failed to establish, under Golding, the existence of a due process violation when the court admitted the testimony of the three state troopers, who had observed the defendant during the traffic stop. The defendant attempts to claim that elicitation of the troopers’ testimony was not only an improper admission of evidence, but also prosecutorial impropriety. It is well established, however, that “[a]lthough . . . unpreserved claims of prosecutorial impropriety are to be reviewed under the Williams factors, that rule does not pertain to mere evidentiary claims masquerading as constitutional violations.” State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007). As a “defendant may not transform an unpreserved evidentiary claim into one of prosecutorial impropriety to obtain review of that claim“; id., 431; we decline to review this evidentiary claim under the prosecutorial impropriety framework.9
B
The defendant next alleges impropriety when the prosecutor “[drew] attention to the defendant‘s decision not to testify.” Specifically, the defendant argues that “the prosecutor asked the jury to imply the defendant‘s guilt from the fact that the defendant, from the time of the initial stop throughout his time at the police station, did not tell the police that he was not the driver. [The prosecutor‘s] questions to the officers were in effect a challenge to the defendant to testify in order to rebut the allegations she was making that his silence proved his guilt.” We disagree.
“It is well settled that comment by the prosecuting attorney . . . on the defendant‘s failure to testify is prohibited by the
In the present case, the prosecutor‘s closing argument urged the jury to make the reasonable inference that, based on the evidence, the defendant was the driver of the vehicle on the night in question. This form of argument is permissible as a comment on the weakness of the defendant‘s case, and is not “naturally and necessarily”
C
The defendant alleges that the prosecutor‘s questions and comments regarding the defendant‘s silence had the effect of shifting the burden of proof to the defendant to prove his innocence. The defendant, however, fails to set forth how the prosecutor‘s statements, which challenged the defendant‘s alternative view of the events, actually shifted the state‘s burden of proof. “[I]t is not improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom . . . . We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade them to draw inferences in the state‘s favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand.” (Emphasis added; internal quotation marks omitted.) State v. Stevenson, supra, 269 Conn. 583. Additionally, “something must be allowed for the zeal of counsel in the heat of argument.” (Internal quotation marks omitted.) State v. Williams, 81 Conn. App. 1, 14, 838 A.2d 214, cert. denied, 268 Conn. 904, 845 A.2d 409 (2004). The defendant has failed to establish how the prosecutor‘s comments went beyond permissible argument and, thus, shifted the burden of proof in the minds of the jury. Accordingly, the defendant‘s claim fails. See State v. Elson, 311 Conn. 726, 750, 91 A.3d 862 (2014) (“[i]f defendant‘s brief fails to . . . apply law to fact . . . then claim likely will be deemed inadequately briefed“).
D
The defendant next alleges that the prosecutor engaged in impropriety when she engaged in a “golden rule” argument. We disagree.
The following additional facts are relevant to our resolution of this claim. At closing argument, the prosecutor made the following statements: “To begin with, if you weren‘t drinking, if you weren‘t driving, [and] an officer starts to put you through field sobriety tests, don‘t you think you would be yelling, ‘I wasn‘t driving,’ or ‘I wasn‘t drinking,’ something to that effect?” (Emphasis added.) She continued: “[I]f you refuse [a Breathalyzer] test your license may be suspended for six months. Maybe you‘re familiar with the public transportation system, or lack thereof, in the northwest corner of Connecticut, but, ladies and gentlemen, if you‘re accused of operating under the influence, you‘re presented with the opportunity to take a test, and you refuse knowing that you‘re giving up your license for six months, why would you do that?” (Emphasis added.) Finally, the prosecutor commented: “[I]f it was you, how many times would you tell the officer ‘it wasn‘t me‘?” (Emphasis added.)
“[A] golden rule argument is one that urges jurors to put themselves in a particular party‘s place . . . or into a particular party‘s shoes. . . . Such arguments are improper because they encourage the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence. . . . They have also been equated to a request for sympathy. . . . [T]he golden rule claims . . . [arise] when the prosecutor ask[s] the [jurors] to put [themselves] in the place of the victim, the victim‘s family, or a potential victim of the defendant. . . . The danger of these types of arguments lies in their [tendency] to pressure the jury
Our Supreme Court, however, has previously held that not all arguments that ask jurors to place themselves in a particular party‘s situation implicate the prohibition on golden rule argument. For example, in State v. Bell, 283 Conn. 748, 773, 931 A.2d 198 (2007), the court concluded that the prosecutor had not violated the prohibition against golden rule argument when he “[asked] the jurors to draw inferences from the evidence that had been presented at trial regarding the actions of the defendant . . . based on the jurors’ judgment of how a reasonable person would act under the specified circumstances. . . . Thus, when the state‘s attorney asked the jurors to put themselves in the defendant‘s shoes . . . and to evaluate his actions, the state‘s attorney properly was asking them to infer the defendant‘s consciousness of guilt from his deceptive actions . . . .” In such a situation, the prosecutor does not implicate the prohibition on golden rule argument because the “arguments [do] not appeal improperly to the jurors’ emotions or exhort them to decide the case on anything other than the evidence presented to them.” Id., 774.
Here, the prosecutor‘s comments at closing argument similarly requested that the jury draw inferences from the evidence based on how a reasonable innocent person would act under the circumstances. The defendant has failed to establish how such comments appealed to the jurors’ emotions or otherwise pressured them to base their determination of guilt on something beyond the evidence presented at trial.
E
The defendant next argues that the prosecutor stated her personal opinion regarding his guilt. At trial, the defendant‘s witness, Balaam, testified that after driving the vehicle he removed the keys from the ignition and placed them in the vehicle‘s center console. In the video of the traffic stop entered into evidence at trial, Hazen asked the defendant where the keys to the vehicle were, and the defendant told him, “I threw [the keys] on the floor.” Based on this evidence, the prosecutor argued the following at closing argument: “Why would [the defendant], if he wasn‘t driving, take those keys from the center console and throw them on the floor? I‘d just leave them in the center console, [if] he was not driving, he didn‘t have to touch the keys that night.” The defendant claims that this statement expressed the prosecutor‘s opinion of the defendant‘s guilt. We disagree.
“It is well established that a prosecutor may argue about the credibility of witnesses, as long as her assertions are based on evidence presented at trial and reasonable inferences that jurors might draw therefrom. . . . Moreover, [i]n deciding cases . . . [j]urors are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion.” (Internal quotation
When the prosecutor stated that “I‘d just leave [the keys] in the center console,” she was not expressing her personal opinion regarding the defendant‘s guilt, but rather was requesting that the jury members apply their common knowledge in weighing the credibility of the defendant‘s witness. Such statements, when based on the evidence and reasonable inferences drawn therefrom, are permissible and therefore do not constitute impropriety by the prosecutor. State v. Lindo, 75 Conn. App. 408, 416, 816 A.2d 641 (“[r]emarks that are nothing more than a permissible appeal to the jurors’ common sense do not constitute prosecutorial [impropriety]“), cert. denied, 263 Conn. 917, 821 A.2d 771 (2003).
F
The defendant next argues that the prosecutor committed impropriety when she commented on a fact that was not in evidence. At closing argument, while discussing the defendant‘s refusal to take a Breathalyzer test, the prosecutor stated: “[I]f you refuse the test, your license may be suspended for six months. Maybe you‘re familiar with the public transportation system, or lack thereof, in the northwest corner of Connecticut, but ladies and gentlemen, if you‘re accused of operating under the influence, you‘re presented with an opportunity to take a test, and you refuse knowing your giving up your license for six months, why would you do that?” (Emphasis added.) On appeal, the defendant argues that references to public transportation in the area amounted to impropriety as it was a comment on a fact that was not in evidence. We disagree.
It is well established that a prosecutor may not comment on evidence that is not a part of the record and may not comment unfairly on the evidence in the record. See, e.g., State v. Singh, 259 Conn. 693, 718, 793 A.2d 226 (2002). In the present case, the evidence established that the defendant had “transportation issues,” often borrowing his supervisor‘s vehicle to transport himself to and from work, and relying on his coworker to drive him home from work. Further, “it is axiomatic that jurors [i]n considering the evidence introduced in a case . . . are not . . . expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life . . . .” (Internal quotation marks omitted.) State v. King, 289 Conn. 496, 521-22, 958 A.2d 731 (2008). In the present case, the prosecutor‘s comment did not reference a fact not in evidence. Rather, the comment simply urged the jurors, who were citizens residing in that area of the state, to apply their common knowledge and experience when considering the evidence.
G
The defendant next alleges that the prosecutor improperly misled the jury regarding two facts. First, the defendant argues that the prosecutor incorrectly stated at closing argument that “Hazen testified that . . . he follows the vehicle seventy-five yards” when, in fact, Hazen had testified that he approached the defendant‘s vehicle after it had already stopped. Second, the defendant argues that the prosecutor incorrectly claimed that both Hazen‘s vehicle and Barone‘s vehicle “were at a traffic stop with their lights on . . . .” The defendant claims that this is inconsistent with the testimony of Hazen, who stated affirmatively that the lights on his vehicle were on, but could not recall whether Barone‘s lights were on. The state argues that in both instances the
The defendant fails to establish how the prosecutor‘s statements were misleading or otherwise incorrect. First, the term “follow” does not necessarily mean that Hazen had pursued the defendant‘s vehicle while it was still moving. The term “follow” could simply mean that Hazen turned his car around, drove seventy-five yards, and parked his vehicle behind the defendant‘s. See Merriam-Webster‘s Collegiate Dictionary (11th Ed. 2003) (defining “follow” in part as “to . . . come after“). Second, the prosecutor‘s statement that “their lights [were] on” was not a misstatement of the evidence. Hazen testified that he was a backup trooper, assisting Barone during a traffic stop. As the two troopers were working in tandem, it was accurate to state that “their” lights were on when they witnessed the defendant‘s vehicle make a U-turn and pull over to the side of the road.
H
Lastly, the defendant argues that the prosecutor improperly implied that the defendant‘s witness was a liar, misstated the facts regarding the witness‘s relationship with the defendant, and provided a personal opinion regarding the witness‘s credibility. We disagree.
Although a prosecutor‘s closing argument may not include statements that purport to convey a personal opinion as to the credibility of a witness, a prosecutor may make statements based on reasonable inferences the jury could draw from the evidence adduced at trial. State v. Ciullo, supra, 314 Conn. 42. In the present case, the prosecutor‘s closing argument challenged the credibility of the defendant‘s witness, Balaam, who testified that he, rather than the defendant, was the driver on the night in question. The prosecutor did not call him a liar, but rather attacked his credibility solely on the basis of reasonable inferences that could have been drawn from the evidence. There was testimony from Balaam, himself, that he was a convicted felon, that he worked with the defendant, and that he spent time socially with the defendant. At closing argument, the prosecutor stated: “[Y]ou . . . need to think about [Balaam‘s] credibility. He is a convicted felon. And I‘m not saying that convicted felons are liars by any account, but consider that on top of [the fact] that he was a friend, an admitted friend of [the defendant]. They worked together, they visited together, socially, and often.” This argument was permissible because it “posited a reasonable inference that the jury itself could have drawn without access to the [prosecutor‘s] personal knowledge of the case.” State v. Stevenson, supra, 269 Conn. 584. Accordingly, we find no merit to the defendant‘s claim that the prosecutor improperly commented on Balaam‘s testimony during closing argument.
The judgment is affirmed.
In this opinion the other judges concurred.
GRUENDEL, J.