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State v. Palumbo

Court of Appeals of Connecticut

October 8, 2019

STATE OF CONNECTICUT
v.
JEFFREY TODD PALUMBO

          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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