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State v. Reddick

Court of Appeals of Connecticut

July 11, 2017

STATE OF CONNECTICUT
v.
JERMAINE E. REDDICK

          Argued February 3, 2017

         Appeal from Superior Court, judicial district of New Haven, B. Fischer, J.

         Procedural History

         Substitute 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. Affirmed.

          Robert E. Byron, assigned counsel, for the appellant (defendant).

          Sarah 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.

         SYLLABUS

         The 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 constitutional rights.

         Held:

         1. The 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.

         2. This 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 at issue.

          OPINION

          SHELDON, J.

          The 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.

         The 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, [1] 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.

         Upon 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.[2] 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 Haven.

         Thereafter, 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

         Gainey, and thus that she wanted him to accompany her to retrieve Gainey and J from New Haven.[3] The Tillerys then drove together from West Haven to Lombard Street, New Haven, where Gainey had instructed Marjorie Tillery to meet her.[4] After waiting several minutes at that location, the Tillerys left Lombard Street and drove over to Peck Street.[5] 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.''

         Upon 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, ''[6] 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.

         As he 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.''

         After 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 the police.

         Officer 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.[7]

         Contemporaneously 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.[8] 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.

         Once 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.[9]

         A few 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.

         Thereafter, 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.

         I

         On 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).[10] 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.''[11]

         The 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[12] 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.

         The 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.[13] 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.

         As part 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[14] nor the defendant[15] 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 Trotman's questions.

         After 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.

         During 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 and gentlemen.''

         The 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.

         At the 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, [16]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 self-defense.

         Thereafter, 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.

         In its 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.''

         Before 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.

         ‘‘It 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 . . . .''

         Against 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).

         In the 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.

         At the 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.

         We 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.[17] 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).

         Accordingly, 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 arrest'').

         As we 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 ...


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