48 Conn. App. 168 | Conn. App. Ct. | 1998
Opinion
The defendant, Bruce Iverson, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell, in violation of General Statutes § 21a-277 (a).
The jury reasonably could have found the following facts. On October 13, 1994, Nicholas Dematteis and Tracy Canale, detectives of the Waterbury police department, observed the defendant in the alley between 12-16 Bronson Street and 18 Bronson Street placing what appeared to be a brown paper bag into a hole at the base of the steps at 18 Bronson Street. As the detectives approached him, they observed the defendant drop two small plastic bags containing white chips. Dematteis retrieved both bags and, on the basis of his training and experience, concluded that they contained crack cocaine. The defendant was arrested, searched, handcuffed and placed in the back of a police vehicle. Dematteis then pulled out the brown paper bag from the hole in the steps and found twenty small plastic bags similar in size and color to the two bags that the defendant had dropped earlier.
I
The defendant first argues that the trial court improperly refused to permit him to ask his witness, Quentin Myers, before the jury, a question to which the defendant knew the witness intended to invoke his privilege against self-incrimination.*
The defendant then called Myers as a witness and made an offer of proof of Myers’ testimony outside the presence of the jury. Myers’ counsel
During voir dire, Myers testified as to his age, residence and certain events that occurred on October 13, 1994. On cross-examination by the state, Myers denied throwing anything into the bushes or onto the sidewalk, yelling “TNT” and stuffing a brown paper bag into a hole in the steps. The following colloquy then took place:
*172 “Q. Mr. Myers, on October 13, 1994, were you selling drugs on Bronson Street?
“A. Was I selling drugs? Yes.
“Q. You were selling drugs—”
At that point, Myers’ court-appointed attorney objected and moved to strike the answer. The trial court granted the motion and permitted Myers to consult with his attorney and guardian ad litem. After the conference, the trial court questioned Myers:
“The Court: Now, what is your mind? Is your mind that you wish to take advantage of your privileges?
“Myers: I’m taking the fifth.
“The Court: You wish to take the fifth amendment?
“Myers: Yes.”
Because Myers invoked his privilege against self-incrimination during voir dire as to whether he sold drugs on Bronson Street on October 13, 1994, the state argued that he should not be permitted to testify at all for the defense as the state would not be able to cross-examine him effectively. The defendant argued that Myers should be required to invoke his privilege to the question in front of the jury. In rejecting both arguments, the trial court ruled that Myers would be permitted to testify in response to all questions he had been asked during voir dire except “he would not be asked by either party before the jury a question concerning his selling drugs on the day in question since the fifteen year old witness has invoked properly his privilege not to incriminate himself in that regard.”
Myers, testifying before the jury, denied throwing anything into the bushes or onto the sidewalk, denied yelling “TNT,” denied stuffing a brown paper bag into
It is widely held that “it is improper to permit a witness to claim a testimonial privilege in front of the jury where the witness’s intention not to testify is known beforehand.” United States v. Chapman, 866 F.2d 1326, 1333 (11th Cir.), cert. denied, 493 U.S. 932, 110 S. Ct. 321, 107 L. Ed. 2d 312 (1989); see also United States v. Doddington, 822 F.2d 818, 822 (8th Cir. 1987); United States v. Crawford, 707 F.2d 447, 449 (10th Cir. 1983); United States v. Lyons, 703 F.2d 815, 818 (5th Cir. 1983); United States v. Fricke, 684 F.2d 1126, 1131 n.7 (5th Cir. 1982), cert. denied, 460 U.S. 1011, 103 S. Ct. 1250, 75 L. Ed. 2d 480 (1983); Commonwealth v. Gagnon, 408 Mass. 185, 196, 557 N.E.2d 728 (1990); People v. Dyer, 425 Mich. 572, 576, 390 N.W.2d 645 (1986) ; People v. Thomas, 51 N.Y.2d 466, 472, 434 N.Y.S.2d 941, 415 N.E.2d 931 (1980); State v. Harris, 839 S.W.2d 54, 72 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S. Ct. 1368, 122 L. Ed. 2d 746 (1993).
Our appellate courts follow that general rule. Our Supreme Court has stated: “It is firmly established that [n] either [the state nor the defendant] has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege either alone or in conjunction with questions that have been put to him. State v. Bryant, 202 Conn. 676, 683, 523 A.2d 451 (1987) , quoting United States v. Lacouture, 495 F.2d 1237, 1240, reh. denied, 503 F.2d 568 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S. Ct. 631, 42 L. Ed. 2d 648 (1974); State v. Daley, 11 Conn. App. 185, 188, 526 A.2d 14 (1987). The rule is grounded not only in the constitutional notion that guilt may not be inferred from the exercise of the Fifth Amendment privilege but also in the danger that a witness’s invoking the Fifth Amendment in the presence of the jury will have a disproportionate impact on their deliberations. The jury may
“Accordingly, we have held that a witness may not be called to the stand in the presence of the jury merely for the purpose of invoking his privilege against self-incrimination. State v. Person, 215 Conn. 653, 577 A.2d 1036 (1990), cert. denied, 498 U.S. 1048, 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991); State v. Bryant, supra, [202 Conn. 683]; State v. Reddick, 197 Conn. 115, 126-28, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). Such testimony is not relevant, and could be prejudicial.” (Internal quotation marks omitted.) State v. Dennison, 220 Conn. 652, 660-61, 600 A.2d 1343 (1991).
The defendant relies on dicta in State v. Bryant, supra, 202 Conn. 686,
We first note that an affirmative answer to the question would not have been exculpatory to the defendant. The fact that the witness may have sold drugs on Bronson Street on the day in question does not mean that the defendant did not stuff a paper bag containing twenty
Furthermore, permitting Myers to invoke his privilege against self-incrimination in front of the jury could result only in speculation as the jury attempted to draw inferences from the unanswered question. See State v. Dennison, supra, 220 Conn. 660-61. The defendant hoped to gain some benefit from the witness’ invocation of the privilege in the presence of the jury. This is impermissible.
II
In his second claim, the defendant asserts that the trial court improperly denied his motion to open the evidence
In response to the defendant’s claim, the state argues that Myers, a juvenile not versed in the law or court procedure, merely blurted out his answer and, therefore, did not knowingly and intelligently waive his right.
The trial court ruled on the defendant’s alternative motion from the bench, saying that it was satisfied from its own observations of Myers during the voir dire hearing that “at the time he blurted out that response he was confused, upset emotionally and did not understand his right to invoke his own privilege to remain silent. As the transcript of the voir dire hearing reveals ... he thought he had to answer truthfully and did not understand that he could invoke his privilege to remain silent. . . . We do not find a testimonial waiver.”
“The test for determining whether a court may infer a testimonial waiver of the privilege against self-incrimination is set forth in Klein v. Harris, 667 F.2d 274, 287 (2d Cir. 1981). A testimonial waiver is not to be inferred lightly. Smith v. United States, 337 U.S. 137, 150, 69 S. Ct. 1000, 93 L. Ed. 1264 (1949); State v. Altrui, [188 Conn. 161,] 169 [448 A.2d 837 (1982)]. It should be inferred only under the most compelling circumstances. Klein v. Harris, supra, 288; State v. Altrui, supra [169]. The two-prong test set forth in Klein v. Harris, supra, 287, states: ‘[A] court should only infer a waiver of the fifth amendment’s privilege against self-incrimination from a witness’ prior statements if (1) the witness’ prior statements have created a significant likelihood that the finder of fact will be left with and prone to rely on a distorted view of the truth, and (2) the witness had
“The requisite ‘reason to know’ that a waiver might be inferred should be found only if the witness’ prior statements were (a) testimonial, meaning that they were voluntarily made under oath in the context of the same judicial proceeding, and (b) incriminating, meaning they did not merely deal with matters collateral to the events surrounding the commission of the crime, but directly inculpated the witness on the charges at issue. Klein v. Harris, supra, [667 F.2d] 288. Both prongs of this test must be satisfied in order for the court to be able to infer a testimonial waiver.” (Emphasis in original.) DeMartin v. Manson, 2 Conn. App. 496, 503-504, 480 A. 2d 578, cert. denied, 194 Conn. 807, 483 A. 2d 275 (1984).
The short answer to the defendant’s claim is that Myers’ responses to the questions preceding the question about selling drugs were not incriminating. They did not inculpate Myers on the charges at issue, i.e., the defendant’s possession of a narcotic substance with an intent to sell. Nor did the answers cause confusion of the issue before the jury. Finally, Myers had no reason to know that the responses would be interpreted as a waiver of his privilege against self-incrimination.
The trial court found that the “fifteen year old confused, emotionally upset youngster did not understand his privilege to remain silent” until he had conferred with his court-appointed lawyer and guardian ad litem. To waive his privilege against self-incrimination, a witness must have some basic understanding of the fifth amendment privilege. If he had no understanding of the privilege, Myers’ answer could not be freely and voluntarily given. See Klein v. Harris, supra, 667 F.2d
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and impris
The fifth amendment to the United States constitution provides in relevant part: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”
TNT refers to the Waterbury police tactical narcotics team.
The trial court appointed a guardian ad litem and legal counsel for Myers, who was fifteen years old at the time of trial
“While we can imagine a case in which a defendant’s constitutional right to call witnesses on his behalf might arguably require that a witness who refuses to testify be called, this is not such a case.” (Emphasis added.) State v. Bryant, supra, 202 Conn. 686.
The motion filed by the defendant was titled “Motion to Reopen Evidence and Allow Answer into Evidence and in the Alternative for a Mistrial.” The trial court denied the motion to open evidence. Prior to sentencing, the defendant filed another motion for a mistrial, which the trial court, confirming its prior decision, also denied.
The trial court also stated, “We conclude that there is no compelling reason to permit Bruce Iverson to reopen the trial to attempt to present inadmissible evidence which came to his attention during the trial. State v. Carter, 228 Conn. [412, 636 A.2d 821 (1994)].”
The defendant also argues that even if the response blurted out by Myers is not deemed to be a waiver of his privilege against self-incrimination, the response was nevertheless admissible under the prior testimony exception to the hearsay rule. When the defendant argued his motion in the trial court, he relied solely on the “waiver issue” and failed to draw the court’s attention to any hearsay exception claim. We will not review this unpreserved, improperly raised evidentiary claim on appeal. See State v. Goodrum, 39 Conn. App. 526, 543, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995).