State v. Palumbo

         Argued March 4, 2019

         Appeal from the Superior Court, Judicial District of Windham, Seeley, J.

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[Copyrighted Material Omitted]

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          Richard Emanuel, New Haven, 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.

         [193 Conn.App. 458] 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 [193 Conn.App. 459] 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,

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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 [193 Conn.App. 460] 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 ...