State v. Palumbo ( 2019 )

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STATE OF CONNECTICUT v.
JEFFREY TODD PALUMBO
(AC 41509)
DiPentima, C. J., and Alvord and Eveleigh, Js.
Syllabus
Convicted of the crimes of sexual assault in the fourth degree, sexual assault
in the first degree, and risk of injury to a child in connection with
his alleged sexual abuse of the minor victim, the defendant appealed.
Although the defendant’s conviction related to two incidents involving
the minor victim, during his trial there was testimony relating to two
other alleged incidents of sexual abuse, one of which occurred while
the defendant and the victim were hiking alone at a state park. After
the defendant testified at trial that, during the hike, there were other
people around, the prosecutor asked him a series of questions that
focused on whether he previously had told the police during an interview
that there were other people around during the hike, and remarked that
this was the first time that they were hearing about that information.
On appeal, the defendant claimed, for the first time, that the 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 violated his
constitutional right to remain silent pursuant to Doyle v. Ohio (426 U.S.
610) by introducing evidence of his post-Miranda silence. Specifically,
he claimed that the questions focused on his silence after he was arrested
and received his Miranda warnings and, therefore, that his post-
Miranda silence was used as evidence of guilt. Held:
1. The defendant’s unpreserved claim that his constitutional right to remain
silent pursuant to Doyle was violated was unavailing; it was clear from
the record that the questions referring to the trial as the first time
that the other hikers were mentioned pertained to the defendant’s pre-
Miranda interview that occurred on March 31, 2014, and, therefore, the
defendant having failed to demonstrate that an alleged constitutional
violation existed, his unpreserved claim failed under the third prong of
the test set forth in State v. Golding (213 Conn 233).
2. The defendant could not prevail on his claim that because the prosecutor’s
questions sought to elicit evidence of his post-Miranda silence, they
amounted to prosecutorial impropriety that violated his due process
rights: this court has determined that certain of the questions did not
violate Doyle and the defendant did not argue how those questions
would otherwise amount to prosecutorial impropriety, and with respect
to the prosecutor’s question of whether the defendant told anyone about
the presence of the other hikers in the time period between a pre-
Miranda interview and his arrests in September and November, 2014,
even if that question was improper, it did not deprive the defendant of
his due process right to a fair trial, as the claimed impropriety was not
pervasive throughout the trial and was confined to a single question
that related to uncharged misconduct, it was not central to a critical
issue in the case or the defendant’s theory of defense, defense counsel
objected to the question before it was answered and the objection was
sustained, the court’s general instructions were sufficiently curative,
and the state’s case was not particularly strong.
Argued March 4—officially released October 8, 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; there-
after, 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 attor-
ney, for the appellee (state).
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 Stat-
utes § 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 evi-
dence of his post-Miranda1 silence and (2) engaged in
prosecutorial impropriety by attempting to elicit evi-
dence of his post-Miranda silence.2 We affirm the judg-
ments 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 apart-
ment 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 occasion-
ally 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. Some-
times K would leave the victim alone with the defendant
while she ran errands. On one occasion at the defen-
dant’s apartment, the victim was in the defendant’s bed-
room 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 defen-
dant’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 inter-
viewed 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 apart-
ment 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 defen-
dant 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-examina-
tion, 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 Novem-
ber 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 incarcera-
tion followed by eight years of special parole. This
appeal followed.
I
The defendant claims that the two questions, refer-
ring 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 constitu-
tional 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 impeach-
ment 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 pre-
served 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 magni-
tude 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 spe-
cifically 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 warn-
ings.’’ 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 pres-
ent situation is distinguishable from the cases the defen-
dant 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 cloth-
ing, and he provided a confession after receiving a
Miranda warning. Id., 46. During the trial, the prosecu-
tor 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) (defendant gave written statement to police after
receiving Miranda warnings; during final argument,
prosecutor focused on defendant not returning to police
to correct his statement), superseded by statute on
other grounds as stated in State v. Kulmac, 230 Conn.
43, 58 n.12, 644 A.2d 887 (1994). We, therefore, conclude
that the defendant failed to demonstrate that an alleged
constitutional violation existed, and thus his unpre-
served Doyle claim fails the third prong of Golding.
II
The defendant additionally claims that the state’s
three questions sought to elicit evidence of the defen-
dant’s post-Miranda silence and, therefore, amounted
to prosecutorial impropriety5 that violated his due pro-
cess rights. We disagree.
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . We first
examine whether prosecutorial impropriety occurred.
. . . Second, if an impropriety exists, we then exam-
ine whether it deprived the defendant of his due process
right to a fair trial. . . . [T]he defendant has the burden
to show both that the prosecutor’s conduct was
improper and that it caused prejudice to his defense.
. . .
‘‘In determining whether the defendant was deprived
of his due process right to a fair trial, we are guided
by the factors enumerated by this court in State v.
Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). These
factors include [1] the extent to which the [impropriety]
was invited by defense conduct or argument, [2] the
severity of the [impropriety], [3] the frequency of the
[impropriety], [4] the centrality of the [impropriety] to
the critical issues in the case, [5] the strength of the
curative measures adopted, and [6] the strength of the
state’s case. . . . [A] reviewing court must apply the
Williams factors to the entire trial, because there is no
way to determine whether the defendant was deprived
of his right to a fair trial unless the [impropriety] is
viewed in light of the entire trial. . . . The question of
whether the defendant has been prejudiced by prosecu-
torial [impropriety] . . . depends on whether there is
a reasonable likelihood that the jury’s verdict would
have been different absent the sum total of the impropri-
eties.’’ (Citations omitted; internal quotation marks
omitted.) State v. Sinclair, 332 Conn. 204, 236-37, 210
A.3d 509 (2019).
The defendant argues that the state’s three ques-
tions—’’That’s the first time that we’re hearing this.
Isn’t that correct?’’; ‘‘And this is the first time that we’re
hearing that information?’’; and ‘‘[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?’’—amounted to prosecutorial impropriety
because the state attempted to elicit evidence of the
defendant’s post-Miranda silence.
As we discussed in part I of this opinion, the first
two questions did not violate Doyle and the defendant
does not argue how the questions would otherwise
amount to prosecutorial impropriety. Therefore, we
address only the defendant’s arguments as to the state’s
question of whether the defendant told anybody about
the presence of other hikers in the time period between
the pre-Miranda interview and the defendant’s arrests
in September and November, 2014. The defendant
argues that this last question was improper because it
includes a post-Miranda time period of two months
between the defendant’s September and November
arrests.
Even if we assume without deciding that the last
question was improper, we determine that it did not
deprive the defendant of his due process right to a fair
trial.6 See State v. Baltas, 311 Conn. 786, 827, 91 A.3d
384 (2014) (reaching second step of prosecutorial
impropriety analysis by assuming, arguendo, that prose-
cutor’s remarks were improper); see also State v. Ross,
151 Conn. App. 687, 699, 95 A.3d 1208, cert. denied, 314
Conn. 926, 101 A.3d 271 (2014).
Under our review of the Williams factors, we first
note that the claimed impropriety was not invited by
the defense. Additionally, we conclude that the factors
of severity, frequency, centrality of the claimed impro-
priety, and strength of the curative measures also weigh
in favor of the state. In the present case, the claimed
impropriety was not pervasive throughout the trial but
was confined to a single question that related to
uncharged misconduct, and was not central to a critical
issue in the defendant’s case or his theory of defense.
Defense counsel objected to the question before it was
answered, the objection was sustained, and the court
had previously instructed the jury regarding sustained
objections.7 Although defense counsel failed to request
a specific curative instruction, the court’s general
instruction directed the jury’s approach to sustained
objections, curing any impropriety. See State v. A. M.,
324 Conn. 190, 207, 152 A.3d 49 (2016) (‘‘in nearly all
cases where defense counsel fails to object to and
request a specific curative instruction in response to
a prosecutorial impropriety, especially an impropriety
that we do not consider to be particularly egregious,
and the court’s general jury instruction addresses that
impropriety, we have held that the court’s general
instruction cures the impropriety’’).
Finally, we consider the sixth factor, namely the
strength of the state’s case. Because there was no physi-
cal evidence and the state’s case relied on the victim’s
testimony, which the defendant, in part, corroborated,
we cannot conclude that the state’s case was particu-
larly strong. Nevertheless, our Supreme Court has
‘‘never stated that the state’s evidence must have been
overwhelming in order to support a conclusion that
prosecutorial [impropriety] did not deprive the defen-
dant of a fair trial.’’ (Internal quotation marks omitted.)
State v. Stevenson, 269 Conn. 563, 596, 849 A.2d 626
(2004).
Under the present circumstances, in which the
claimed impropriety—one question—was objected to
and the objection was sustained before the question
was answered, and the court’s general instructions were
sufficiently curative, we conclude that the defendant
was not denied his due process rights and that his
prosecutorial impropriety claim fails.
The judgments are affirmed.
In this opinion the other judges concurred.
1
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
2
The defendant has raised three additional issues on appeal, claiming
that (1) the trial court improperly denied his motions for judgments of
acquittal because of insufficient evidence of penetration to support the
conviction for sexual assault in the first degree or, alternatively, because
the conviction was against the weight of the evidence, (2) he was deprived
of his due process rights as a result of prosecutorial impropriety because
the state improperly elicited constancy of accusation evidence, which led
to an erroneous jury instruction, and the state made comments in rebuttal
that misstated evidence, related to the constancy of accusation evidence,
and highlighted the defendant’s interest in the case, and (3) that the trial
court improperly joined his separate cases for trial. We carefully have consid-
ered the defendant’s claims and conclude that they have no merit.
3
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
4
The questions that the defendant claims constituted Doyle violations
occurred during the following exchange:
‘‘[The Prosecutor]: Okay. So only the two of you would know what hap-
pened out in—in the woods?
‘‘[The Defendant]: Correct. There was a lot of other people there at the
time, too, walking around hiking, too, so—
‘‘[The Prosecutor]: You didn’t tell the police that when you talked to them.
‘‘[The Defendant]: They didn’t ask.
‘‘[The Prosecutor]: That’s the first time that we’re hearing this. Isn’t
that correct?
‘‘[The Defendant]: I do believe I—I don’t—actually I don’t know if I told
them at the time or not. The fact is, is when we were walking around, there
were other people there. The place was busy. It was in the middle of summer
and it was Green Falls.
‘‘[The Prosecutor]: And this is the first time that we’re hearing that infor-
mation?
‘‘[The Defendant]: Nobody inquired previous to it.
‘‘[The Prosecutor]: Well, you’re in a two-hour interview with police officers
and you have time to talk about other things, you talk about your vaporizer,
you talk about your brewing at the beginning of the video?
‘‘[The Defendant]: Yes, when inquired.
‘‘[The Prosecutor]: And you never thought to mention to them that there
were a bunch of other people around on this hike?
‘‘[The Defendant]: Well, there’s people walking. It’s a hiking path at Green
Falls. There was people camping there. As we were walking, we passed
people, we had conversations with people. So, yes, there’s other people,
but nothing—again, nothing that I thought of, nothing out of the ordinary,
nothing more than a hike, a normal hike.
‘‘[The Prosecutor]: So when you’re in an interview room with two police
officers being accused of touching a child on a hike—
‘‘[The Defendant]: Yeah.
‘‘[The Prosecutor]: —alone, you didn’t think it was helpful information
that maybe there were other people around?
‘‘[The Defendant]: I had stated that there were other people around in
the beginning. I stated that I had asked a bunch of other people if they
wanted to go for a hike, too.
‘‘[The Prosecutor]: So they were back at the campsite?
‘‘[The Defendant]: Those people were, yes.
‘‘[The Prosecutor]: Right. So we’re talking about when you were on the
hike alone with [the victim].
‘‘[The Defendant]: It just didn’t cross my mind. There was people. You
hike, you see people.
‘‘[The Prosecutor]: Okay. And so you—so you—
‘‘[The Defendant]: And there was nothing spe—yeah, I mean yeah,
there was—
‘‘[The Prosecutor]: So you didn’t tell the officers about that?
‘‘[The Defendant]: No. No.
‘‘[The Prosecutor]: And between March 31 of 2014 and your arrest in
September in Montville and in November in—in Danielson, you never told
anybody about that?
‘‘[Defense Counsel]: Objection, Your Honor.
‘‘The Court: Send the jury out.’’ (Emphasis added.)
When the jury returned, the court stated: ‘‘All right. I think when we broke
there was an objection. That objection is sustained.’’
5
The defendant raises other instances of prosecutorial impropriety, but
as we stated in footnote 2 of this opinion, we conclude that the remainder
of the defendant’s prosecutorial impropriety claim is without merit. We,
therefore, address only the claimed Doyle violations that the defendant
argues are instances of prosecutorial impropriety.
6
Our opinion should not be understood to suggest that the prosecutor
committed impropriety at any time during her questioning. In State v. Papan-
toniou, 185 Conn. App. 93, 111, 196 A.3d 839, cert. denied, 330 Conn. 948,
196 A.3d 326 (2018), this court explained: ‘‘The two steps of [our] analysis
are separate and distinct, and we may reject the claim if we conclude that
the defendant has failed to establish either prong.’’ (Internal quotation marks
omitted.) Accordingly, like in Papantoniou, we simply assume, solely for
the sake of argument, that the prosecutor’s question was improper. See id.,
112 n.19.
7
On the first day of trial, the court gave the jury the following instruction:
‘‘If I sustain [an] objection, you will not hear an answer to the question and
you should not wonder why the objection was made and you should not
speculate as to what an answer might have been.’’ The court also instructed
the jury at the close of evidence that ‘‘any question or objection by a lawyer
is not evidence . . . testimony that has been excluded or stricken is not
evidence and must be disregarded . . . .’’