Argued
March 4, 2019
Procedural
History
Substitute
information, in the first case, charging the defendant with
the crimes of sexual assault in the fourth degree and risk of
injury to a child, brought to the Superior Court in the
judicial district of New London, and substitute information,
in the second case, charging the defendant with the crimes of
sexual assault in the first degree and risk of injury to a
child, brought to the Superior Court in the judicial district
of Windham, geographical area number eleven, where the court,
Seeley, J., granted the state's motion for
joinder; thereafter, the matter was tried to the jury;
verdicts and judgments of guilty, from which the defendant
appealed. Affirmed.
Richard Emanuel, for the appellant (defendant).
Nancy
L. Chupak, senior assistant state's attorney, with whom,
on the brief, were Anne F. Mahoney, state's attorney, and
Marissa Goldberg, assistant state's attorney, for the
appellee (state).
DiPentima, C. J., and Alvord and Eveleigh, Js.
OPINION
ALVORD, J.
The
defendant, Jeffrey Todd Palumbo, appeals from the judgments
of conviction, rendered following a jury trial, of sexual
assault in the first degree in violation of General Statutes
§ 53a-70 (a) (2), sexual assault in the fourth degree in
violation of General Statutes § 53a-73a (a) (1) (A), and
two counts of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2). On appeal, the
defendant claims, pursuant to Doyle v.
Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d
91 (1976), that the state (1) violated his constitutional
right to remain silent by introducing evidence of his
post-Miranda[1] silence and (2) engaged in prosecutorial
impropriety by attempting to elicit evidence of his
post-Miranda silence.[2] We affirm the judgments of the
trial court.
The
following facts, which the jury reasonably could have found,
and procedural history are relevant to our resolution of this
appeal. The defendant started dating the victim's mother,
K, on August 8, 2008, when the victim was
three.[3] The defendant moved into an apartment in
Montville with K and the victim in March, 2009, when K became
pregnant with the defendant's child. The defendant
continued living there with K and the victim after their son,
T, was born, and his older son from a previous relationship,
D, moved in with K and the victim as well. The defendant
moved out of K's apartment in May, 2012. However, the
defendant still had contact with the victim because he and K
shared custody of T, and the defendant and D would
occasionally go to K's apartment to watch movies and play
video games with K, T, and the victim.
K, T,
and the victim also would visit the defendant and D at the
defendant's apartment in Danielson. Sometimes K would
leave the victim alone with the defendant while she ran
errands. On one occasion at the defendant's apartment,
the victim was in the defendant's bedroom lying down at
the edge of his bed. The defendant told her to take her pants
off and she did. She saw that the defendant's
‘‘front private went through a hole in his
underwear.'' He told her to touch it. She testified
that she did, that it felt ‘‘squishy, ''
and that the defendant then touched his penis to her vagina,
making ‘‘skin to skin'' contact. The
victim said that it hurt the middle of her vagina.
In
December, 2013, the defendant and D went to K's apartment
in Montville to watch movies and play video games. While K
was outside smoking a cigarette, the victim was standing on
the couch. The defendant put his hand inside the victim's
pants and rubbed her vagina over her underwear. She told him
to stop, but he did not. She told him that she was going to
tell her mother, and he responded that her mother would not
believe her. When K returned, the victim told K that the
defen- dant made her feel uncomfortable, and K told her to
stay in K's bedroom and play on the computer.
When K
learned from the victim's grandmother that the victim had
told her cousin that she had been abused, K informed Nora
Selinger, a school guidance counselor who the victim saw for
counseling. After speaking with the victim, Selinger filed a
report with the Department of Children and Families
(department). The department then forwarded the report to the
police.
On
March 31, 2014, police officers went to the defendant's
house and asked to talk to him about a case they were
investigating. The defendant agreed to meet with the police
at the police barracks where the police interviewed the
defendant. The defendant did not receive Miranda
warnings, and the interview was taped. On September 12, 2014,
the defendant was given Miranda warnings and
arrested on charges of sexual assault in the fourth degree
and risk of injury to a child stemming from the December,
2013 incident at K's apartment in Montville. On November
12, 2014, he was given Miranda warnings and arrested
on charges of sexual assault in the first degree and risk of
injury to a child arising from his conduct in the bedroom of
his apartment in Danielson. The two cases were consolidated
for trial.
During
the defendant's trial, there was testimony relating to
two other alleged incidents when the defendant rubbed the
victim's vagina over her underwear. The defendant was not
charged for those incidents. One occurred at the
defendant's apartment when K was not there, and the other
occurred when the defendant and the victim were hiking alone
at a state park.
The
defendant elected to testify. On cross-examination, the state
played portions of his March 31, 2014 police interview and
questioned him about the interview and the hiking incident.
The defendant testified that, during the hike, there were
other people around. The state then asked the defendant a
series of questions that focused on whether the defendant
previously had told the police that there were other people
‘‘around'' during the hike. Specifically,
the state asked: (1) ‘‘That's the first time
that we're hearing this. Isn't that
correct?''; (2) ‘‘And this is the first
time that we're hearing that information?''; and
(3) ‘‘[B]etween March 31st of 2014 and your
arrest in September in Montville and in November in-in
Danielson, you never told anybody about
that?''[4] Defense counsel objected to the last of
these three questions, and the objection was sustained.
The
jury found the defendant guilty of sexual assault in the
first degree, sexual assault in the fourth degree, and two
counts of risk of injury to a child. The court accepted the
verdicts and sentenced the defendant to a total effective
term of ten years mandatory incarceration followed by eight
years of special parole. This appeal followed.
I
The
defendant claims that the two questions, referring to the
trial as being the first time that the defendant
mentioned that other people were in the same area during the
hike with the victim, violated his constitutional right to
remain silent pursuant to Doyle v. Ohio,
supra, 426 U.S. 610, by introducing evidence of the
defendant's post-Miranda silence. Specifically,
the defendant argues that the two questions focused on the
defendant's silence after he was arrested and received
his Miranda warnings, and therefore his
post-Miranda silence was used as evidence of guilt.
We disagree.
‘‘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.'' (Emphasis in original; internal quotation
marks omitted.) State v. Reddick, 174 Conn.App. 536,
553, 166 A.3d 754, cert. denied, 327 Conn. 921, 171 A.3d 58
(2017), cert. denied, U.S., 138 S.Ct. 1027, 200 L.Ed.2d 285
(2018).
The
defendant acknowledges that he did not preserve his
Doyle claim but asserts that it is reviewable under
State v. Golding, 213 Conn. 233, 239-40,
567 A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015). Under
Golding, ‘‘a defendant can prevail on a
claim of constitutional error not preserved at trial only if
all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error; (2)
the claim is of constitutional magnitude alleging the
violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a
reasonable doubt. In the absence of any one of these
conditions, the defendant's claim will fail.''
(Emphasis in original; footnote omitted.) State v.
Golding, supra, 239-40.
Upon
our review of the record, it is clear that the two questions,
in which the state referred to the trial as the
‘‘first time'' that the other hikers were
mentioned, pertained to the defendant's March 31, 2014
pre-Miranda interview. ‘‘[E]vidence of
prearrest, and specifically pre-Miranda, silence is
admissible to impeach the testimony of a defendant who
testifies at trial, since the rule of Doyle . . . is
predicated on the defendant's reliance on the implicit
promise of the Miranda warnings.'' State
v.Angel T.,292 Conn. 262, 286 n.19, 973 A.2d
1207 (2009); see also State v.Esposito,
223 Conn. 299, 319, 613 A.2d 242 (1992)
(‘‘prosecution's use of silence prior to the
receipt of Miranda warnings does not violate due
process''). Because the state's questions clearly
focused on the pre-Miranda interview, the present
situation is distinguishable from the cases the defendant
cites in support of his argument that the state's use of
the term the ‘‘first time'' amounts to a
Doyle violation. See, e.g., State v.Brunetti, 279 Conn. 39, 45-46, 83, 86, 901 A.2d 1
(2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167
L.Ed.2d 85 (2007). In Brunetti, the defendant was
given Miranda warnings during a police interview
after becoming upset when he was questioned about reddish
brown stains on certain clothing, and he provided a
confession after receiving a Miranda warning.
Id., 46. During the trial, the prosecutor asked:
‘‘[O]ther than your lawyer, could you please tell
. . . the jury when is the first time that you told someone
in authority, like a judge, a prosecutor or a police officer,
this story about your sweatpants being dipped in
blood?'' Id., 83. Our Supreme Court
concluded that the Doyle violation was harmless.
Id., 86; see also State v.Apostle, 8 Conn.App. 216, 220, 512 A.2d 947 (1986)
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