February 3, 2017
from Superior Court, judicial district of New Haven, B.
information charging the defendant with the crimes of assault
in the first degree, criminal possession of a firearm and
assault in the third degree, brought to the Superior Court in
the judicial district of New Haven and tried to the jury
before B. Fischer, J.; verdict and judgment of
guilty, from which the defendant appealed to this court.
E. Byron, assigned counsel, for the appellant (defendant).
Hanna, assistant state's attorney, with whom, on the
brief, were Patrick J. Griffin, state's attorney, Michael
Dearington, former state's attorney, and Gary W.
Nicholson, supervisory assistant state's attorney, for
the appellee (state).
Sheldon, Keller and Prescott, Js.
defendant, who had been convicted of several offenses that
arose from a shooting incident, appealed to this court,
claiming that he was deprived of his constitutional right to
a fair trial as a result of certain allegedly improper
comments that the prosecutor made during closing argument to
the jury. The defendant asserted, inter alia, that the
prosecutor improperly used the defendant's exercise of
his right to remain silent as evidence of his guilt,
expressed his opinion about a witness' credibility and
appealed to the jurors' emotions. The defendant and his
girlfriend, G, had argued on their way to G's home after
leaving a party that they had attended. When they arrived, G
called her mother to ask that she come and pick up G's
minor child. G's mother then woke up her brother, the
victim, and G's mother and the victim thereafter drove to
G's house, where they observed the defendant in the
passenger seat of a vehicle that was leaving the premises.
The victim approached the vehicle in which the defendant was
sitting, and the defendant eventually got out of the vehicle
and shot the victim with a handgun. The defendant then got
back into the vehicle, which left the premises. A police
officer thereafter stopped the defendant's vehicle and
arrested him. During a police search of the vehicle, a
handgun was found, which the defendant stated belonged to
him. During the encounter with the officer, the defendant did
not inform him that he shot the victim in self-defense. At
trial, the defendant, who previously had been convicted of a
felony, claimed that he had shot the victim in self-defense.
G, who sustained injuries on the evening of the shooting,
gave conflicting accounts through testimony and statements
given to the police as to how she sustained those injuries.
Although both parties questioned the arresting officer as to
the sequence of events pertaining to his stop of the
defendant's vehicle, neither the state nor the defendant
established when in that sequence the defendant was arrested
or if and when the officer informed the defendant his
defendant could not prevail on his claim that his
constitutional right to a fair trial was violated when the
prosecutor stated during closing argument to the jury that
the defendant did not inform the police officer who arrested
him that he acted in self-defense when he shot the victim,
thereby using his post arrest silence as circumstantial
evidence of his guilt: there was no basis on which to
conclude that the prosecutor used the defendant's
exercise of his right to remain silent as evidence of his
guilt, as the record did not establish when the defendant was
arrested, whether the arrest preceded or followed the
questioning of him by the police officer who stopped the
defendant's vehicle, and if and when the officer informed
the defendant of his constitutional rights, and there was no
evidence that the defendant expressly invoked his right to
remain silent during his encounter with the officer.
court found unavailing the defendant's claim that he was
deprived of his due process rights to a fair trial when the
prosecutor allegedly expressed his opinion during closing
argument as to the credibility of G, and appealed to the
jurors' emotions by referencing a trend in gun violence
and referring to the defendant as a convicted felon and a
predator: contrary to the defendant's claim that the
prosecutor expressed his belief that G lied about her
injuries, the prosecutor argued that G was biased in favor of
the defendant and had a motive to testify favorably for him,
and asked the jury to draw reasonable inferences from G's
testimony, in which she presented different accounts as to
how she was injured on the evening of the shooting;
furthermore, although the prosecutor's reference to
broader issues of gun violence and certain comments he made
about the defendant's prior felony conviction were
improper, the court's jury instructions were sufficient
to cure any prejudice resulting from the gun violence
comment, the prosecutor did not refer to the defendant as a
predator, and the defendant failed to demonstrate that, in
the context of the entire trial, the challenged comments that
were deemed improper were so egregious as to render the trial
unfair, as the state's case was strong, the comments were
infrequent and the defendant failed to object to the comments
defendant, Jermaine E. Reddick, appeals from the judgment of
conviction, rendered against him after a jury trial in the
judicial district of New Haven, on charges of assault in the
first degree in violation of General Statutes § 53a-59
(a) (5), criminal possession of a firearm in violation of
General Statutes § 53a-217 (a) (1), and assault in the
third degree in violation of General Statutes § 53a-61
(a) (1). On appeal, the defendant claims that his conviction
should be reversed on grounds that the prosecutor, in his
closing argument to the jury, violated his right to a fair
trial by (1) improperly commenting on the defendant's
failure to inform police officers at the time of his arrest
that he had shot the victim in self-defense; (2) offering his
personal opinion as to the credibility of a state's
witness; and (3) appealing to the emotions of the jurors by
injecting extraneous issues into the trial and commenting on
the defendant's prior felony conviction. We affirm the
judgment of the trial court.
jury was presented with the following evidence upon which to
base its verdict. In the early morning hours of April 29,
2013, the defendant, along with his girlfriend, Myesha
Gainey, and their three year old daughter, J,  got a ride home
from a party they had attended earlier in the evening. Both
the defendant and Gainey had been drinking before the ride.
At the start of the ride, the defendant was seated in the
front passenger seat, while Gainey sat in the backseat with
J. At some point during the ride, however, the defendant
reached into the backseat, unbuckled J's seat belt, and
lifted her into the front seat, where she remained unbuckled
for the remainder of the ride. Upon seeing that J was
unbuckled in the front seat of the car, Gainey began to argue
with the defendant. The argument continued until the couple
reached Gainey's home at 38 Peck Street, New Haven, where
the defendant stayed several nights a week.
arriving at 38 Peck Street, Gainey took J up to the second
floor of the home. There, she told the defendant that she was
going to call her mother, Marjorie Tillery, to come over and
pick up J. The defendant and Gainey then started to
argue again. Shortly before 1 a.m., Marjorie Tillery received
a phone call from J, who was crying and sounded distraught.
During this phone call, Tillery also spoke with Gainey, who
sounded emotional and upset. Although Gainey provided few
details to her mother about what was happening, Tillery
became concerned for Gainey's and J's safety, and
agreed to drive over to Peck Street from her home in West
Tillery woke up the victim, her brother, Mickey Tillery, who
was asleep in another room. She told her brother that the
defendant had been hitting
and thus that she wanted him to accompany her to retrieve
Gainey and J from New Haven. The Tillerys then drove together
from West Haven to Lombard Street, New Haven, where Gainey
had instructed Marjorie Tillery to meet her. After waiting
several minutes at that location, the Tillerys left Lombard
Street and drove over to Peck Street. When they arrived, however,
they were unable to find parking in the lot behind
Gainey's home, and Marjorie Tillery parked her Chevy
Tahoe truck in the middle of the parking lot, blocking
several occupied parking spaces. At that time, Marjorie
Tillery attempted to call Gainey to inform her that they had
arrived at Peck Street. Within minutes of the Tillerys'
arrival, a grey station wagon began to back out of a parking
spot that was partially blocked by Marjorie Tillery's
Tahoe. As she was about to move the Tahoe, Marjorie Tillery
observed the defendant in the front passenger seat of the
station wagon. She then stated to Mickey Tillery,
‘‘there go Jermaine right there.''
seeing the defendant in the passenger seat of the station
wagon, both Tillerys exited the Tahoe and began to approach
the station wagon. Although Marjorie Tillery recalled that
she ‘‘came in peace, '' Mickey Tillery
admittedly came with the intent to fight the defendant. He
testified at trial that, upon seeing the defendant,
‘‘I kind of, like, lost it. I jumped out of the
truck. I ran over to where he was sitting in the car . . .
.'' During this initial encounter, the station wagon
remained stationary in its parking space, with its doors
unlocked and its passenger window partially down.
approached the station wagon, Mickey Tillery began to argue
with the defendant, saying ‘‘something about
[how] I'm tired of this with my niece and then . . . like
I said, I pushed him, and I just put my hands inside the car
and tried to snatch him out and he yanked back.''
Mickey Tillery also recounted, ‘‘I put my hand
inside the car so I could snatch him out the car a minute and
. . . that's why I opened the [passenger] door, but they
locked it and then they [rolled] their windows up, and [so] I
stepped away from the car and I was just looking because I
couldn't get in now that they [had] hatched the windows
up and lock[ed] the door.''
the defendant locked the car's doors and rolled up its
windows, Mickey Tillery took several steps away from the
station wagon in an effort to lure the defendant out of the
car. Several seconds later, Mickey Tillery heard the doors of
the station wagon unlock, and, believing that he and the
defendant were about to fight, Mickey Tillery backed away
from the car to allow the defendant to exit the station
wagon. The defendant then opened the front passenger side
door, exited the vehicle, produced a nine millimeter
semiautomatic handgun and shot Mickey Tillery, who, at the
time, was stepping away from the vehicle with his hands up in
the air. Mickey Tillery immediately collapsed on the
pavement. Fearing that the defendant might shoot her as well,
Marjorie Tillery got back into the Tahoe. The defendant then
returned to the passenger side of the station wagon and got
in, after which the station wagon backed out of the parking
space, drove around the Tahoe, and exited the parking lot.
Immediately after the station wagon left the area, Marjorie
Tillery saw Gainey exiting her neighbor's home. Although
Gainey had not witnessed the shooting, Marjorie Tillery told
her that the defendant had shot Mickey Tillery, who, by then,
was lying unconscious near the passenger side of the Tahoe.
Marjorie Tillery also dialed 911 and reported the incident to
Reginald E. McGlotten of the New Haven Police Department
arrived first on the scene. After speaking with Marjorie
Tillery, McGlotten broadcasted a description of the shooter
and the station wagon over his police radio. At the time of
that broadcast, Officer Gene Trotman, Jr., who was responding
to the initial report of a gunshot fired on Peck Street,
observed a station wagon matching the broadcast description
of the shooter's vehicle traveling near the intersection
of Chapel and Church Streets in New Haven. Trotman first
called for backup units, then initiated a traffic stop of the
station wagon. Once backup units arrived, Trotman approached
the station wagon with his weapon drawn. The driver of the
station wagon was identified as Akeem Whitely, and his
passenger was identified as Jermaine Reddick, the defendant.
Trotman asked the defendant where he was then coming from.
The defendant responded that he was coming from 38 Peck
Street. Trotman asked if there were any weapons in the
vehicle, and the defendant stated that there were. The
defendant and Whitely were then placed under arrest. A
subsequent search of the station wagon revealed a nine
millimeter semiautomatic handgun between the front passenger
seat and the center console. Upon further questioning, the
defendant stated that the gun was his and that Whitely was
simply giving him a ride.
with this traffic stop, Officer Keron Bryce arrived at Peck
Street to secure the scene with McGlotten. While securing the
scene, Bryce found one nine millimeter shell casing on the
pavement near Marjorie Tillery's Tahoe. Bryce then
interviewed Marjorie Tillery and Gainey about the events
preceding the shooting. During these interviews, Bryce saw a
laceration on Gainey's face and noticed that she had a
swollen lip. Upon further questioning by the officer, Gainey
indicated that the defendant had caused her injuries.
Thereafter, Bryce was notified that Trotman had pulled over a
vehicle matching the description given by Marjorie Tillery.
Bryce then transported Marjorie Tillery to the intersection
of Chapel and Church Streets to conduct a one-on-one showup
identification of the suspect.
Bryce and Tillery had arrived at Trotman's location,
Bryce shined a spotlight on the defendant, who was then
sitting in the backseat of a police cruiser. Upon seeing the
defendant, Marjorie Tillery positively identified him as the
person who had shot her brother. The defendant was then
transported to the New Haven Police Department's
detention facility for processing. A subsequent background
check revealed that the defendant had previously been
convicted of a felony.
miles away, Mickey Tillery arrived by ambulance at Yale-New
Haven Hospital. There, it was determined that the bullet had
struck the femoral artery in his right leg and that he was
rapidly losing blood. Doctors first performed cardiopulmonary
resuscitation on Mickey Tillery, then gave him a
‘‘massive [blood] transfusion . . . .''
Thereafter, doctors performed reconstructive surgery on his
femoral artery to halt the loss of blood. Although the
surgery proved successful, Mickey Tillery had to remain in
the hospital for the next two weeks. On May 9, 2013, while
still recovering in the hospital, Mickey Tillery spoke with
members of the New Haven Police Department and agreed to view
a photographic array of eight individuals. Upon reviewing the
array, Mickey Tillery positively identified a photograph of
the defendant as that of the man who had shot him.
by way of a long form information, the state charged the
defendant with assault in the first degree in connection with
the shooting of Mickey Tillery, assault in the third degree
in connection with the assault of Gainey, and criminal
possession of a firearm. The defendant elected a trial by
jury, which took place from April 21 through April 23, 2015.
At trial, the defendant argued that Mickey Tillery had been
the initial aggressor in the incident between them and that
he had shot Mickey Tillery in self-defense. After several
hours of deliberations, the jury found the defendant guilty
of all three charges. On July 10, 2015, the defendant was
sentenced to a total effective term of twenty-three years in
prison followed by three years of special parole. This appeal
followed. Additional facts will be set forth as necessary.
appeal, the defendant first claims that the state violated
his due process right to a fair trial because the prosecutor,
during closing argument, impermissibly commented on the
defendant's failure to inform Trot-man when he was first
interviewed that he had shot Mickey Tillery in self-defense.
In support of his claim, the defendant argues that the
prosecutor failed to distinguish between the defendant's
prearrest and postarrest silence, the latter of which is
constitutionally protected. The defendant thus argues that,
by commenting on his failure to tell the police when he first
spoke with them that he had acted in self-defense, the
prosecutor used his postarrest silence as circumstantial
evidence of his guilt, in violation of his privilege against
self-incrimination, as applied in Doyle v. Ohio, 426
U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The defendant
claims that the challenged comments were ‘‘so
egregious, so deliberate, and so calculated to defeat the
constitutional right of the defendant and to abuse the
authority of the office of the prosecutor that it merits . .
. the reversal of the verdict, even though no objection was
made at trial.''
state disagrees, arguing that ‘‘the
defendant's claim fails on both the law and the facts [of
this case].'' In support of its position, the state
argues that the defendant's
pre-Miranda silence, unlike his
post-Miranda silence, is not constitutionally
protected, and thus a prosecutor is not prohibited from
commenting on a defendant's pre-Miranda silence
during closing argument. The state further argues that the
trial court record does not establish when Trotman read the
defendant his Miranda rights, and thus there is no
basis for concluding that the prosecutor violated the
defendant's fifth and fourteenth amendment rights under
the rule of Doyle v. Ohio, supra, 426 U.S. 610.
Finally, the state argues that even if the challenged
comments were improper, any error based upon them was
harmless and does not warrant reversal of the defendant's
conviction. We agree with the state that the record does not
establish when the defendant received his Miranda
warning, and thus there is no basis upon which to conclude
that the prosecutor's comments violated Doyle.
following additional facts are necessary for our resolution
of this claim. As discussed in the preceding paragraphs, the
defendant advanced a claim of self-defense throughout the
trial. In support of his claim, he attempted to establish,
through his cross-examination of the state's witnesses,
that Mickey Tillery was approximately six inches taller than
he was and outweighed him by as much as seventy
pounds. On cross-examination of Mickey Tillery,
the defendant elicited admissions as to his anger toward the
defendant and his desire to fight him on the evening of the
shooting. Mickey Tillery, in fact, agreed with defense
counsel's statement that he ‘‘would have . .
. beat the crap out of [the defendant], '' that he
would not have let anyone break up the fight, and that he did
not intend to stop fighting with the defendant until he
‘‘got tired of hitting him.'' Defense
counsel also sought to emphasize that the defendant had
‘‘tried to get away'' from Mickey Tillery
before the shooting occurred.
of its case-in-chief, the state presented the testimony of
Trotman, the officer who had stopped the station wagon at the
intersection of Church and Chapel Streets. Although both
parties inquired of Trotman as to the sequence of events
during that traffic stop, neither the state nor the
defendant established when in that sequence the
defendant was arrested, whether the arrest preceded or
followed Trotman's questioning of the defendant, whether
the defendant was ever given his Miranda warnings,
and, if so, when those warnings were given in relation to
two days of evidence, the state rested its casein-chief. The
defendant thereafter elected to not testify in his own
defense and, after being canvassed by the court as to that
decision, rested his case without presenting any defense
witnesses. Closing arguments were made the following day.
closing argument, the prosecutor recounted the events leading
up to the shooting, emphasizing, inter alia, that during the
initial encounter, the defendant had rolled up the car's
windows and locked its doors. The prosecutor then recalled
for the jury that Mickey Tillery, who was unarmed, had backed
away from the defendant's vehicle after its windows were
rolled up. ‘‘Suddenly, '' the prosecutor
argued, ‘‘he hears the door on the
passenger's side unlock and what happens? The defendant
comes out, pulls out a gun, aims it at Mickey Tillery, and
fires at him, striking him in his upper right leg. . . . I
mean, ask yourself, when you shoot somebody who's doing
that, is that self-defense? It's not self-defense, ladies
prosecutor also discussed, without objection, the
defendant's conversation with Trotman following the
shooting. More specifically, the prosecutor stated:
‘‘[W]hat's said by Mr. Reddick at that time?
Well, he tells Officer Trotman that he had been over at 38
Peck Street. He also tells . . . Officer Trotman that the gun
was his and that Mr. Whitely was a friend of his and was just
giving him a ride. That's what he told Officer Trotman.
What didn't he say to Officer Trotman? You know, this is
somebody who is going to now claim that he was acting in
self-defense. I mean, did he say anything to Officer Trotman,
you know, geez, you know . . . I was just accosted by this
[madman] and I had to shoot him. Did he mention the shooting
at all? He didn't mention the shooting at all. I . . .
don't know how he thought he was going to get away this.
But he, for whatever reason, was willing to admit that he had
been over to Peck Street and that the gun was his, but he
never admitted to doing any shooting or . . . that he had to
shoot anybody in self-defense, never made . . . any mention
of that, whatsoever.'' Thereafter, the prosecutor
concluded his opening closing argument.
outset of his closing argument, defense counsel commented
that ‘‘99 percent of the facts of this case are
not disputed. You know what happened; it's just your
interpretation of it with a couple of minor twists.''
Counsel then argued that Marjorie Tillery ‘‘was
going [to Peck Street] for vengeance. She was going to be a
vigilante. She was taking things into her own
hands.'' Thereafter, counsel claimed that Marjorie
Tillery ‘‘let [Mickey Tillery] loose'' on
the defendant. Counsel argued that, at that moment, it was
the middle of the night, the defendant did not recognize
Mickey Tillery, he was being confronted by a larger man
who was attempting to pull him out of the car window and
that, fearing for his safety, he shot Mickey Tillery in
defense counsel argued that the state had failed to carry its
burden of proof that the defendant had not acted in
self-defense that night. In support of his argument, counsel
reminded the jury that it could infer that (1) the defendant
reasonably believed that he faced serious physical injury
because Mickey Tillery admitted that he intended to seriously
injure the defendant; (2) the defendant reasonably believed
that Mickey Tillery may have had a weapon in the car; (3) the
defendant tried to avoid the fight and ‘‘stayed
in the car for as long as he could''; and (4) the
defendant had not used deadly force because he had shot
Mickey Tillery in the leg and fired only once before fleeing
the area. Counsel then concluded his argument without
addressing the state's characterization of the
defendant's interaction with Trotman.
rebuttal argument, the state reiterated that the jury should
not credit the defendant's claim of self-defense because
the defendant had not told officers at the time of his arrest
either that he had shot Mickey Tillery or that he had done so
in self-defense. More specifically, the prosecutor argued
that, ‘‘when the defendant was stopped by Officer
Trotman, shortly after the shooting, you know, he didn't
say, hey, geez, you know, I'm glad . . . you can't
believe what just happened to me. This madman was coming at
me and I had to shoot him. I thought he was going to kill me.
He doesn't even mention to Officer Trotman that he shot
anybody. So, this wasn't self-defense. If it was
self-defense, he would have told the police right then and
there what had happened. He didn't.''
reaching the merits of the defendant's claims, we first
set forth the relevant portions of our law of self-defense.
‘‘Under our Penal Code, self-defense, as defined
in [General Statutes] § 53a-19 (a) . . . is a defense,
rather than an affirmative defense. . . . That is, [the
defendant] merely is required to introduce sufficient
evidence to warrant presenting his claim of self-defense to
the jury. . . . Once the defendant has done so, it becomes
the state's burden to disprove the defense beyond a
reasonable doubt. . . . As these principles indicate,
therefore, only the state has a burden of persuasion
regarding a self-defense claim: it must disprove the claim
beyond a reasonable doubt.
is well settled that under § 53a-19 (a), a person may
justifiably use deadly physical force in self-defense only if
he reasonably believes both that (1) his attacker is using or
about to use deadly physical force against him, or is
inflicting or about to inflict great bodily harm, and (2)
that deadly physical force is necessary to repel such attack.
. . . [Our Supreme Court] repeatedly [has] indicated that the
test a jury must apply in analyzing the second requirement .
. . is a subjective-objective one. The jury must view the
situation from the perspective of the defendant. Section
53a-19 (a) requires, however, that the defendant's belief
ultimately must be found to be reasonable.''
(Internal quotation marks omitted.) State v. Abney,
88 Conn.App. 495, 502-503, 869 A.2d 1263, cert. denied, 274
Conn. 906, 876 A.2d 1199 (2005). Under subsection (b) of
§ 53a-19, however, ‘‘a person is not
justified in using deadly physical force upon another person
if he or she knows that he or she can avoid the necessity of
using such force with complete safety . . . by retreating . .
. .'' Moreover, under subsection (c) of §
53a-19, ‘‘a person is not justified in using
physical force when (1) with intent to cause physical injury
or death to another person, he provokes the use of physical
force by such other person, or (2) he is the initial
aggressor, except that his use of physical force upon another
person under such circumstances is justifiable if he
withdraws from the encounter and effectively communicates to
such other person his intent to do so, but such other person
notwithstanding continues or threatens the use of physical
force . . . .''
this backdrop, ‘‘[w]e set forth the legal
principles that guide our analysis [of the defendant's
claims] and our standard of review. 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. .
. . Likewise, our Supreme Court has recognized that it is
also fundamentally unfair and a deprivation of due process
for the state to use evidence of the defendant's
post-Miranda silence as affirmative proof of guilt .
. . . Miranda warnings inform a person of his right
to remain silent and assure him, at least implicitly, that
his silence will not be used against him. . . . Because it is
the Miranda warning itself that carries with it the
promise of protection . . . the prosecution's use of [a
defendant's] silence prior to the receipt of
Miranda warnings does not violate due process. . . .
Therefore, as a factual predicate to an alleged
Doyle violation, the record must demonstrate that
the defendant received a Miranda warning prior to
the period of silence that was disclosed to the jury. . . .
The defendant's claim raises a question of law over which
our review is plenary.'' (Citations omitted; internal
quotation marks omitted.) State v. Lee-Riveras, 130
Conn.App. 607, 612- 13, 23 A.3d 1269, cert. denied, 302 Conn.
937, 28 A.3d 992 (2011); see also State v. Bereis,
117 Conn.App. 360, 373, 978 A.2d 1122 (2009).
present case, the defendant claims that the prosecutor's
remarks during his opening and rebuttal closing arguments
violated his constitutional rights under the fifth and
fourteenth amendments, as applied in Doyle v. Ohio,
supra, 426 U.S. 610, not to have the exercise of his right to
remain silent used against him in a later criminal
proceeding. In support of his position, the defendant argues
that, although ‘‘[p]ostarrest silence is treated
differently from prearrest silence, '' the facts of
this case demonstrate that ‘‘there was a period
under anyone's definition of arrest during which the
defendant was silent as to his exculpatory explanation . . .
.'' The defendant further asserts that the prosecutor
failed to distinguish between the defendant's prearrest
and postarrest silence, and thus the prosecutor's
comments, which ‘‘encompassed the entirety of the
time the defendant was under the custody of Trot-man,
'' violated the defendant's fifth and fourteenth
amendment rights to remain silent. Furthermore, although the
defendant concedes that Trotman did not testify as to when,
if at all, the defendant received his Miranda
warnings in the course of the traffic stop, he maintains that
the right to remain silent is not contingent upon the receipt
of Miranda warnings, but instead
‘‘inheres automatically under the fifth
amendment.'' We are not persuaded.
outset, we address two fundamental flaws in the
defendant's argument. We first note that, although the
defendant is correct in his assertion that the right to
remain silent is not contingent upon the receipt of
Miranda warnings, ‘‘[i]t has long been
settled that the privilege [against self-incrimination]
generally is not self-executing and that a witness who
desires its protection must claim it.'' (Citation
omitted; internal quotation marks omitted.) Salinas v.
Texas, U.S., 133 S.Ct. 2174, 2178, 186 L.Ed.2d 376
(2013). In the present case, however, there is no evidence to
support the notion that the defendant, in the absence of any
Miranda warning, expressly invoked his
constitutional right to remain silent at any time during his
encounter with Trotman.
further note that, in support of his claim that the
prosecutor violated the constitutional protections described
in Doyle, the defendant relies upon the fact that he
was either in police custody or under formal arrest when he
spoke with Trotman. A review of relevant federal and state
case law demonstrates that the defendant's reliance on
these facts is misplaced. In Fletcher v. Weir, 455
U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the United
States Supreme Court summarized its evolving jurisprudence
under Doyle by explaining that the ‘‘use
of silence for impeachment was fundamentally unfair in
Doyle because Miranda warnings inform a
person of his right to remain silent and assure him, at least
implicitly, that his silence will not be used against him. .
. . [Thus] Doyle bars the use against a criminal
defendant of silence maintained after receipt of
governmental assurances.'' (Emphasis added;
internal quotation marks omitted.) Id., 606. In State v.
Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476
U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986), our Supreme
Court adopted the rationale of Fletcher, holding
that ‘‘the absence of any indication in the
record that the silence of a defendant had been preceded by a
Miranda warning rendered Doyle in
applicable, even though the inquiry of the prosecutor
pertained to the time of arrest.'' Id., 524-25; see
also State v. Berube, 256 Conn. 742, 751-52, 775
A.2d 966 (2001); State v. Plourde, 208 Conn. 455,
467, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109
S.Ct. 847, 102 L.Ed.2d 979 (1989).
our courts have recognized that the giving of
Miranda warnings, even in the absence of a formal
arrest, entitles the defendant to the Doyle
protections because such warnings provide governmental
assurance, at least implicitly, that the defendant's
silence will not be used against him. See State v.
Montgomery, 254 Conn. 694, 715, 759 A.2d 995 (2000). We
have, however, distinguished the former cases from cases
where no Miranda warnings were given. In so doing,
we have held that the act of being placed under arrest does
not, by itself, provide governmental assurance that the
defendant's silence will not be used against him at a
later date. E.g., State v. Plourde, supra, 208 Conn.
466-67. Thus, it is the giving of Miranda warnings,
not the act of being placed under arrest, that cloaks a
defendant with the protections of Doyle v. Ohio,
supra, 462 U.S. 610. See B. Gershman, Prosecutorial
Misconduct (2d Ed. 2011-2012) § 10:17, p. 416
(‘‘[c]learly, the operative fact in
Jenkins [v. Anderson, 447 U.S. 231, 100
S.Ct. 2124, 65 L.Ed.2d 86 (1980)], as in Doyle, is
the giving of Miranda warnings, not the
have long held, if a defendant allegesa constitutional
violation, he bears the initial burden of establishing that
the alleged violation occurred; it is only then that the
state assumes the burden of demonstrating that the
constitutional error was harmless beyond a reasonable doubt.
See, e.g., State v. Jones, 65 Conn.App. 649, 654,
783 A.2d 511 (2001); see also State v. Nasheed, 121
Conn.App. 672, 678-79, 997 A.2d 623, cert. denied, 298 Conn.
902, 3 A.3d 73 (2010). Moreover, when analyzing a
defendant's claim that a prosecutor violated the
protection set forth in Doyle, we have held that
‘‘[i]t is essential to know the timing of these
conversations because the use at trial of silence
prior to the receipt of Miranda warnings
does not violate due process.'' (Emphasis in
original; internal quotation marks omitted.) State v.
Berube, supra, 256 Conn. 751. In the present case, the
record is unclear as to when, if at all, Trotman gave
Miranda warnings to the defendant. Accordingly,
under the present facts, ‘‘we are unable to
determine whether a Doyle violation
occurred.'' State v. Gonzalez, 167 Conn.App.
298, 302 n.2, 142 A.3d 1227, cert. denied, 323 Conn. 929, 149
A.3d 500 (2016). In light of the foregoing, we conclude that
there is no basis upon which to conclude that ...