State v. Canty

Berdon, J.,

dissenting in part. I disagree with part I of the majority opinion. The majority concedes that the trial court violated the holding of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), when it permitted the state to impeach the defendant by calling attention to his silence after receiving the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and when that court later itself attacked the defendant’s credibility in the same way. The majority claims, however, that even though the defendant’s credibility was crucial to his defense, the error was harmless. This result is reached only by ignoring the undisputed facts.

*724The majority asserts that “the colloquy involving the failure to disclose Gumby to the authorities occurred only at one point during trial and was not mentioned thereafter by either the state’s attorney or the trial court.” Thus, they argue that this case is governed by those authorities that hold that reference to the defendant’s silence can be harmless error when “there is but a single reference at trial to the fact of [the] defendant’s silence [and] the reference is neither repeated nor linked with the defendant’s exculpatory story . . . .” Chapman v. United States, 547 F.2d 1240, 1250 (5th Cir.), cert. denied, 431 U.S. 908, 97 S. Ct. 1705, 52 L. Ed. 2d 393 (1977); State v. Silano, 204 Conn. 769, 781, 529 A.2d 1283 (1987).

In fact, however, there were two distinct episodes in which the state or the court referred to the defendant’s silence and thereby impeached his credibility. The first reference was made by the state’s attorney during cross-examination, and the second was made by the trial court during recross-examination.

During cross-examination, while discussing the defendant’s account of how Gumby had dropped the bag, the prosecutor asked, “Why did you wait until today to get this out?” The import of this question was obviously that the defendant should have told the authorities his story before trial and that his failure to do so reflected unfavorably on his credibility. The first Doyle violation was complete as soon as the question was asked, and was compounded by the subsequent line of questioning, which focused on the defendant’s postarrest silence.1

The defendant’s testimony on cross-examination soon moved on to other matters, including the defendant’s own personal use of illegal drugs and his previous con*725versations with Willie Massey, who corroborated his testimony. Redirect examination then was conducted by defense counsel, who elicited testimony from the defendant concerning the entries in his notebook, his conversations with his alleged accomplice, Hugh Pollard, and the reason why the defendant had run from the police at the time of his arrest. Defense counsel, obviously concerned about the damage to the defendant’s credibility caused by the reference to his postarrest silence, then raised that issue again by asking why the defendant had not told him or the police about Gumby, and elicited testimony that the police had never questioned the defendant. Thereafter, testimony ranged over several other topics.

When recross-examination began, the state’s attorney asked the defendant about several unrelated topics before returning to the issue of whom the defendant had or had not told about Gumby. At that point, for the first time, the defense attorney raised the issue of attorney-client privilege. There then followed a lengthy argument between the attorneys, in the presence of the jury, about the scope of that privilege and whether it applied to the defendant’s alleged failure to tell his attorney about Gumby. This argument itself further focused the jury’s attention on the defendant’s silence about Gumby. Thereafter, questioning resumed. In the middle of that questioning, the trial court interrupted and stated: “One moment, please. Something else just occurred to me here. It’s not just why didn’t you tell your attorney. The real question is why didn’t you tell the authorities—same question—and then we don’t get at all to this question of violating the attorney-client privilege; but, in either event, you did neither, is that correct?” (Emphasis added.)

I do not understand how these two incidents, separated by a long period of time, covering nearly thirty transcript pages, during which testimony was taken on *726a number of unrelated topics, can be deemed to have occurred during the same “point” of a trial. Whatever the meaning of the court’s new “one point during trial” standard, it is clearly a dramatic departure from the cases on which the court purports to rely, in which there actually, not metaphorically, was “but a single reference at trial to the fact of defendant’s silence.” Compare Chapman v. United States, supra, 1249 (“in the case at bar the prosecutor asked one question eliciting the fact of Chapman’s silence, and that fact was never alluded to again”); State v. Silano, supra, 784 (“only a single question by the prosecutor, a nonresponsive repetitive response by the defendant, and an ambiguous passing comment in the state’s closing argument”); State v. Zeko, 177 Conn. 545, 556, 418 A.2d 917 (1979) (“single comment by the prosecution’s rebuttal witness that the defendant had not given a statement following arrest, with no attempt then or in closing argument to suggest that the jury draw an implication of guilt from silence”).

Moreover, the second Doyle violation was particularly egregious because it was the trial court that interrupted the prosecutor’s questioning and brought the issue of the defendant’s silence with respect to the authorities to the attention of the jury. As the majority acknowledges, we have often noted that comments of the trial court carry special weight with the jury. Taken in context, the trial court’s improper question was hardly “isolated,” as the majority claims. Nor is it the case that the question “did not focus solely on the defendant’s failure to inform the authorities.” The defendant’s failure to inform the authorities was precisely what the trial court’s question concerned.

The majority concedes that “[i]t is arguable that the defendant’s credibility . . . was absolutely critical to his defense, and to the extent that the Gumby matter impacted upon his credibility, the line of questioning *727did strike at the ‘jugular’ of his defense.” This, however, understates the damage done to the defendant by the constitutional violation. Although it is true that the dropped bag incident “did not establish directly any element of the crime with which the defendant was charged,” the state’s version of that incident, if believed, strongly supported the case against the defendant. The state’s theory of the case was that the defendant had acted as the warehouse from which the retailer, Pollard, had taken the drugs during the individual sale. That theory would have been weakened if, at the time of his arrest shortly afterward, the defendant had had no drugs in his possession. It would likewise have been greatly strengthened if the defendant could be shown to have had in his possession the twelve vials of crack cocaine that were found in the brown bag. In this context, the trial court most assuredly did strike at the “jugular” of the defendant’s story when, in the middle of the defendant’s testimony, it interjected a question indicating that there was something suspicious about the defendant’s failure to tell the authorities about the brown bag. The Gumby issue was not only about credibility. It went to the heart of the prosecution’s case.

The defendant’s postarrest silence was not reemphasized by the prosecution on closing argument, but this is not essential for a harmful Doyle error. The majority’s reliance on Chapman v. United States, supra, is inapposite, because in this case the reference to the defendant’s silence was “repeated [and] linked with [the] defendant’s exculpatory story,” the exculpatory story was not “transparently frivolous,” and evidence of guilt was not “overwhelming.”2

*728In this case, the fact of the defendant’s silence was not merely elicited in passing by the prosecutor. On the contrary, both the prosecutor and the trial court directly linked the fact of the defendant’s silence to his exculpatory story, and used it expressly to cast doubt upon that story.

The defendant’s exculpatory story is less frivolous than the majority opinion makes it appear. The majority opinion reports that his claim was that he “had never given Pollard a glassine envelope, but had been simply shaking hands with him after making an agreement to wallpaper several rooms in Pollard’s mother’s house.” On first blush, such a claim would appear implausible. As the state’s attorney observed while *729cross-examining Pollard, it would be “kind of odd” for Pollard to interrupt a drug transaction in order to talk to the defendant about a completely unrelated matter. Pollard explained, however, that after speaking with the defendant, he had planned to get into Gonzalez’ car and ask him to drive around the block while completing the sale, and that he had hoped to persuade Gonzalez to drive him to another location. The reason for interrupting the transaction thus was that Pollard expected to be leaving the area and wanted to conclude his business with the defendant before doing so. Pollard did in fact enter Gonzalez’ car after speaking with the defendant, and was in fact driven around the block. The question of whether or not this story should be believed is one for the jury, not for this court. I cannot say that it is “transparently frivolous” or “totally implausible.”

Also I cannot agree with the court’s assertion that “the state’s evidence, although not uncontroverted, was certainly very strong.” This case is already a remarkable dilution of the prior requirement for harmless error. In other cases in which we have found harmless Doyle error, we followed the requirement of Chapman by specifically holding that the indicia of guilt were “overwhelming.” See State v. Shashaty, 205 Conn. 39, 51, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988); State v. Silano, supra, 784; State v. Zeko, supra, 556; see also State v. Hull, 210 Conn. 481, 493-94, 556 A.2d 154 (1989) (not citing Chapman, but finding evidence of guilt “overwhelming”). In this case, moreover, even the “very strong” characterization exaggerates the state’s case.

The state’s case rested almost entirely on the veracity and accurate perception and recollection of a single witness, Gonzalez. His testimony was contradicted by that of three witnesses: Massey, Pollard, and the defendant. Moreover, as the majority opinion acknowl*730edges, there was testimony to the effect that it was physically impossible for Gonzalez to have seen the defendant hand drugs to Pollard. The court clearly does not mean to cast doubt on the well established rule that “[t]he testimony of a police officer is entitled to no special or exclusive sanctity merely because it comes from a police officer.” 5 D. Borden & L. Orland, Connecticut Criminal Jury Instructions (1986) § 3.11; see also State v. Harris, 172 Conn. 223, 228, 374 A.2d 203 (1977).

Even if we assume that Gonzalez was telling the truth, he may have been mistaken. He might well have assumed that the only reason Pollard would have for interrupting the transaction would be to obtain drugs from the defendant. The alternative explanation offered by the defendant and Pollard is plausible, but is unlikely to have occurred to Gonzalez. In the seconds that ensued, Gonzalez might well have believed he saw drugs being passed, when in fact all that was happening was that Pollard and the defendant were shaking hands. Perception is tricky, and we often see what we expected to see, and afterward hold an unshakeable conviction that that is what we saw. A jury that had not been prejudiced by unconstitutional considerations may very well have believed the defendant and his two corroborating witnesses instead of Gonzalez. “The story told by [the defendant] was plausible, and, if believed by the jury, should have led to an acquittal. Because the nature of a Doyle [violation] is so egregious and so inherently prejudicial, reversal is the norm rather than the exception.” Williams v. Zahradnick, 632 F.2d 353, 363 (4th Cir. 1980). In this case, having to choose which set of witnesses to believe, “[t]he jury may well have sought to buttress the [state’s] evidence with the testimony concerning [the defendant’s] silence and whatever inferences could be drawn from it.” Rudolph v. Powell, 478 F. Sup. 849, 852 (E.D. Wis. 1979). I cannot con-*731elude that there is no reasonable possibility that the repeated references to the defendant’s silence, by both the prosecutor and the trial court, might have contributed to the jury’s verdict.

I would reverse and order a new trial. Accordingly, I respectfully dissent.

The subsequent line of questioning appears in footnote 3 of the majority opinion.

In our earlier cases considering whether a violation of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), had occurred, we frequently quoted the following sentence from Chapman v. United States, 547 F.2d 1240, 1250 (5th Cir.), cert. denied, 431 U.S. 908, 97 S. Ct. 1705, 52 *728L. Ed. 2d 393 (1977): “When there is but a single reference at trial to the fact of [the] defendant’s silence, the reference is neither repeated nor linked with [the] defendant’s exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to [the] defendant’s silence constitutes harmless error.” See State v. Shashaty, 205 Conn. 39, 46-47, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988); State v. Silano, 204 Conn. 769, 782, 529 A.2d 1283 (1987); State v. Pellegrino, 194 Conn. 279, 292, 480 A.2d 537 (1984); State v. Briggs, 179 Conn. 328, 336, 426 A.2d 298 (1979); State v. Zeko, 177 Conn. 545, 555, 418 A.2d 917 (1979). While that quotation, taken out of context, was not misleading in those cases, it is, however, misleading in the present case. It is preceded by the following two sentences in the original, which make it clear that Chapman would require us to find harmful error in this case: “When the prosecution uses [the] defendant’s post-arrest silence to impeach an exculpatory story offered by [the] defendant at trial and the prosecution directly links the implausibility of the exculpatory story to the defendant’s ostensibly inconsistent act of remaining silent, reversible error results even if the story is transparently frivolous. See United States v. Luna, 539 F.2d 417 (5th Cir. 1976); United States v. Harp, [536 F.2d 601 (5th Cir. 1976)].

“When the prosecutor does not directly tie the fact of [the] defendant’s silence to his exculpatory story, i.e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming. See United States v. Impson, [531 F.2d 274, reh. denied, 535 F.2d 286 (5th Cir. 1976)].” Chapman v. United States, supra, 1249.