25 Conn. App. 149 | Conn. App. Ct. | 1991
The defendant appeals from the judgment of conviction, rendered after a jury trial, of larceny in the first degree by receiving stolen property in violation of General Statutes §§ 53a-122 (a) (3) and 53a-119 (8).
The jury could have reasonably found the following facts. Sometime after 8 p.m. on August 16, 1988, a rented 1988 Mercury Sable was stolen by two men, neither of whom was the defendant. On August 26,1988, at about 2:20 p.m., Officer William Horner of the New Haven police department was parked in his marked police cruiser on Dixwell Avenue when he was approached by a citizen who claimed to have been threatened by someone with a rifle in a white car down the street. The man pointed to a white Mercury Sable and as the car approached Homer’s position he flagged it to stop. The car sped away and Horner radioed for assistance giving the car’s description. A few minutes later, two plain clothes police officers spotted the white Mercury Sable as it skidded into an embankment and stopped. The defendant emerged from the car carrying a shotgun and was arrested. The car the defendant was driving was later identified as the 1988 Mercury Sable stolen nine days earlier, and when it was returned to the dealership, it was valued at $13,000.
The defendant filed a motion to suppress his statements to the police in which he argued that he could not have waived his Miranda rights without knowing that he was being questioned about this crime. The trial court found that the defendant was informed what the charges against him were and was fully aware of his rights under Miranda, which he freely waived, when he talked with the detectives, and his motion was denied. Consequently, during the defendant’s trial Howard testified about what the defendant had said in his interrogation and the gestures he had made when asked whether he knew the car was stolen. The defendant chose not to testify and proffered no evidence.
The defendant claims that the trial court improperly permitted his statements and the description of his gestures into evidence and allowed the state to use this evidence in closing argument, in violation of his right to due process and his right not to incriminate himself.
The defendant argues that his response to the question whether he knew the vehicle was stolen, his silence and gestures, is protected under Miranda. On the basis of this premise, the defendant asserts that the state’s use of his silence and gestures as incriminating statements was a violation of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); Griffin v. California, 380 U.S. 604, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); and Miranda v. Arizona, supra. We do not accept the defendant’s claim that his response to the detective’s question was an assertion of his fifth amendment privileged silence under Miranda, and therefore conclude that his derivative claims to Doyle and Griffin violations are equally without basis.
The trial court found that the defendant was fully informed of his constitutional rights under Miranda and freely chose to waive those rights. He then answered a series of police questions for about one hour. “By speaking, the defendant has chosen unambiguously not to assert his right to remain silent. He knows that anything he says can and will be used against him and it is manifestly illogical to theorize that he might be choosing not to assert the right to remain silent as to part of his exculpatory story, while invoking that right as to other parts of his story. While a defendant may invoke his right to remain silent at any time, even after he initially waived his right to remain
General Statutes § 53a-119 (8) provides in pertinent part: “A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with the purpose to restore it to the owner. ” (Emphasis added.) The defendant claims that the aforesaid italicized portion of the statute is an essential element of the offense and that the jury should have been so instructed by the trial court. This claim was not raised below and the defendant again requests review under the Evans-Golding criteria. State v. Golding, supra. A claim that the jury was not instructed on an essential element of the crime implicates the defendant’s due process rights, and is thus reviewable. See State v. Griffin, 175 Conn. 155, 161-62, 397 A.2d 89 (1978).
The dispositive question is whether the italicized portion is an essential element of the offense. “It is generally recognized that the state bears no initial burden of proof on matters personal to the defendant and peculiarly within his own knowledge.” State v. Januszewski, 182 Conn. 142, 167, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). Whether the defendant received,
The judgment is affirmed.
In this opinion the other judges concurred.
The defendant was acquitted on the charge of threatening pursuant to General Statutes § 53a-62.