State v. Smith , 180 Conn. App. 181 ( 2018 )

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STATE OF CONNECTICUT v. RONALD G. SMITH
(AC 39690)
Alvord, Keller and Lavery, Js.
Syllabus
Convicted of the crimes of sexual assault in the fourth degree, risk of injury
to a child, sexual assault in the first degree and sexual assault in the
second degree, the defendant appealed. During trial, the state had
offered, and the court admitted into evidence, testimony that during a
taped police interview, the defendant, after answering most of the police
officers’ questions, refused to answer further questions, never claimed
the minor victim was lying about the allegations, refused to speak further
and exercised his right to remain silent. The court also had admitted
into evidence from the state a video recording of the interview depicting
the defendant’s invocation of his Miranda rights to remain silent and
to an attorney. On appeal, the defendant, relying on Doyle v. Ohio (426
U.S. 610), claimed for the first time that his constitutional right to remain
silent was violated when the state introduced evidence of his post-
Miranda silence. Held that the defendant could not prevail on his unpre-
served claim that his constitutional right to remain silent was violated,
as any claimed error in the court’s admission of the challenged evidence
was harmless beyond a reasonable doubt: although the defendant’s
invocation of his rights was described by more than one witness and
depicted on a video presented in evidence, the prosecutor did not there-
after focus or comment on the defendant’s silence, made no suggestion to
the jury that it should draw an inference of guilt based on the defendant’s
exercise of his Miranda rights, made no comment on the defendant’s
invocation of his Miranda rights during closing argument and did not
otherwise highlight the challenged evidence to the jury, and the chal-
lenged evidence was wholly unrelated to the defendant’s exculpatory
theories advanced at trial, which the jury reasonably may have found
as weak given the inconsistent evidence presented in support of them;
moreover, apart from the challenged evidence related to the defendant’s
post-Miranda silence, the state established the guilt of the defendant
beyond a reasonable doubt, as the victim testified at length and in detail
regarding the alleged assaults by the defendant, consistently identifying
the defendant as his abuser to police, medical personnel, Department
of Children and Families personnel and during his testimony at trial,
and was able to provide locations where the abuse occurred both during
interviews with the police and during his testimony at trial, and the
state not only presented medical evidence that the victim had been
sexually abused, but also presented evidence from which the jury reason-
ably could have determined the defendant was the abuser.
Argued November 29, 2017—officially released March 13, 2018
Procedural History
Information in the first case charging the defendant
with the crimes of sexual assault in the fourth degree,
risk of injury to a child and sexual assault in the first
degree, substitute information in the second case charg-
ing the defendant with the crimes of sexual assault in
the second degree and risk of injury to a child, and
substitute information in the third 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 Hartford and
tried to the jury before Suarez, J.; verdicts and judg-
ments of guilty, from which the defendant appealed.
Affirmed.
Richard S. Cramer, for the appellant (defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, Debra Collins, senior assistant state’s
attorney, and Toni M. Smith-Rosario, senior assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Ronald G. Smith, appeals
from the judgments of conviction, rendered after a jury
trial, of one count of sexual assault in the fourth degree
in violation of General Statutes § 53a-73a (a) (1) (A),
six counts of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2), six counts of risk of
injury to a child in violation of § 53-21 (a) (1), two
counts of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (2), and three counts
of sexual assault in the second degree in violation of
General Statutes § 53a-71 (a) (1). On appeal, the defen-
dant, relying upon Doyle v. Ohio, 426 U.S. 610, 96 S.
Ct. 2240, 48 L. Ed. 2d 91 (1976), claims that the state
violated his constitutional right to remain silent when
it introduced evidence of the defendant’s post-Miranda
silence.1 We conclude that any claimed error was harm-
less beyond a reasonable doubt. Accordingly, we affirm
the judgments of the trial court.
The jury reasonably could have found the following
facts. The defendant met the victim2 between Novem-
ber, 2007 and November, 2008, when the victim was
nine years old. At that time, the victim lived in an apart-
ment in Hartford with his mother, his grandmother, and
his younger sibling, who was the child of the defendant
and the victim’s mother. The defendant was dating the
victim’s mother and would spend time daily at the
apartment.
On one occasion, when the victim was nine years
old, he was watching television in the bedroom he
shared with his mother when the defendant came into
the room to play wrestle. The defendant then took his
penis out, rubbed it on the victim’s arm, and tried to
rub it near the victim’s mouth. The victim tried to push
away from the defendant. The victim’s mother entered
the room and asked what the defendant was doing. Both
the defendant and the victim said that the defendant
was not doing anything. The victim did not tell his
mother what the defendant did to him because ‘‘it just
felt weird and she wouldn’t have believed me anyways,’’
and ‘‘she would take his side over mine sometime.’’
The defendant lived with his mother and would bring
the victim to his house to play with another of the
defendant’s children. On one such occasion, the victim,
who was ten years old at the time, was in the basement
at the defendant’s house when the defendant told the
victim to come near him and to pull his pants down
and lie on the bed. The defendant pulled his pants down,
spit on his hand, rubbed his penis, and anally penetrated
the victim. When the victim tried to sit up to get away,
the defendant laid the victim against the bed face down
and held him down. The victim made a whining noise,
and the defendant told him to ‘‘shut up.’’ The defendant
ejaculated into the victim’s anus. After this incident,
the victim was in pain and would see blood when he
used the bathroom. The victim did not tell his mother
what happened because he did not think she would
believe him. The defendant anally penetrated the victim
on more than twenty occasions when the victim was
ten years old. The victim did not tell anyone the defen-
dant was doing this because he ‘‘didn’t want anyone to
think [he] was gay . . . .’’ The defendant offered to
give and gave the victim toys and money in exchange
for letting the defendant perform these acts.
The defendant fathered a child with a woman who
lived in Windsor, and the defendant would bring the
victim to visit that child at the woman’s home (Windsor
home). On one occasion before Christmas when the
victim was eleven or twelve, the defendant bought the
victim an iPod and told the victim ‘‘now you have to
let me fuck you.’’ The defendant drove the victim to
the parking lot of the Windsor home and covered the
back seat windows of the car. The defendant spit on
his hand, rubbed his penis, and anally penetrated the
victim. The defendant ejaculated, and then drove the
victim home and told the victim to tell his mother that
they were loading the defendant’s truck. Between
November, 2009 and January, 2011, the defendant con-
tinued to anally penetrate the victim, and did so more
than ten times in the parking lot of the Windsor home.
On one occasion, when the victim was thirteen years
old, the defendant asked the victim’s mother if he could
take the victim to help him load his truck. The defendant
took the victim to a motel in Windsor Locks, showed
the victim pornography on the television and told the
victim ‘‘to do the same thing that’s in the porno.’’ The
defendant again spit on his hand, rubbed his penis, and
anally penetrated the victim. On another occasion, the
defendant put his penis into the victim’s mouth and
ejaculated into his mouth. Afterward, the defendant
bought the victim a BB gun.
In April or May, 2013, the victim told his mother what
the defendant was doing to him, but when his mother
said she would call the cops, the victim said ‘‘never
mind.’’ The victim, wanting the abuse to stop and in an
attempt to break up the defendant and his mother, also
told his mother that the defendant was ‘‘cheating on
her,’’ and testified that he ‘‘was cheating on her with
me really.’’
On one occasion in August, 2013, the defendant again
took the victim, who was fourteen at the time, to a
motel in Windsor Locks. The defendant told the victim
to take off his clothes, laid the victim across the bed,
and anally penetrated the victim. The incident lasted
‘‘longer than before’’ and ‘‘hurt more.’’ The victim told
the defendant to stop but he did not. The victim told
the defendant he ‘‘was finished with it’’ and ‘‘wasn’t
doing that anymore,’’ and the defendant laughed. After
this incident, the victim felt a painful ‘‘bubble inside of
[his] anus.’’ He told his mother that he had hemorrhoids
from a bicycle accident and asked to go to the family
doctor. The victim saw Idaresit Udo, a physician, on
August 21, 2013. The victim did not tell the doctor about
the abuse because his mom was present. The victim
went home and his symptoms worsened to the point
where he experienced difficulty getting out of bed.
Also in August, 2013, the Department of Children and
Families (department) became involved with the victim
after receiving an anonymous report that his mother
was leaving younger children alone in the home with
the victim throughout the night. When the department
responded to the home on or about August 26, 2013,
the victim was observed to be in pain. The next day,
Dante Rabb, an investigator with the department, vis-
ited the victim’s home. He observed the victim lying in
bed and crying in pain, saying his buttocks area hurt.
Rabb asked the victim if he wanted to see a doctor and
he hesitated, looked at his mother, and finally said yes.
Rabb and the victim’s grandmother brought him to the
doctor’s office. The victim’s mother did not accompany
them because she stated she did not have time. The
victim saw Fonda Gravino, a physician, and told her
that the defendant had been having anal intercourse
with him. Dr. Gravino performed a physical exam and
noted abrasions and ulcerations, which injuries she con-
cluded were a result of child sexual abuse. Dr. Gravino
and the victim telephoned the victim’s mother and the
victim told his mother that the defendant had been
sexually abusing him for the past five years.
The victim’s mother telephoned the Hartford Police
Department to report the sexual assault, and Officer
Tyrone Boland responded. Boland transported the vic-
tim from Dr. Gravino’s office to the Connecticut Chil-
dren’s Medical Center, where he was admitted. During
the drive, the victim told Boland that his mother’s boy-
friend had sexually assaulted him. While at the hospital,
the victim’s mother asked Rabb and Boland how long
it was going to take and said that she had ‘‘things to
do.’’ Also at the hospital, the victim told others, includ-
ing Rabb and Nina Livingston, a child abuse pediatri-
cian, that the defendant had been sexually abusing him
for years. Dr. Livingston diagnosed the victim with ‘‘sus-
pected sexual abuse,’’ and concluded that the victim’s
injuries were not caused by a bicycle accident. Dr. Liv-
ingston further observed symptoms of psychological
distress that could have been consistent with post-trau-
matic stress and depression and recommended trauma-
focused counseling.3 The victim remained in the hospi-
tal for almost a week, and was diagnosed with a sexually
transmitted disease. After the victim was released from
the hospital, he went to live with his aunt.
The defendant voluntarily submitted to interviews
with both the Hartford and Windsor Police Depart-
ments, and officers from both departments submitted
arrest warrant applications. Later, on December 23,
2013, members of a police fugitive task force arrived
at the Windsor home, where the defendant was located.
After several hours of refusing to open the door to the
task force, the defendant was arrested. The defendant
elected a jury trial.
During trial, the state presented the testimony of
Boland and Detective Shawn Ware, both of the Hartford
Police Department, and Officer Russell Winiger of the
Windsor Police Department. Boland and Ware testified
regarding the September 10, 2013 interview (Hartford
interview). Ware testified that the defendant drove him-
self to the Hartford Police Department on that date.
Boland, Detective Danny Johnson, and Ware were pre-
sent for the Hartford interview. Ware advised the defen-
dant of his Miranda rights, and the defendant signed
a waiver of rights form.4 The form was entered into
evidence without objection from defense counsel. Ware
described the defendant’s demeanor during the Hart-
ford interview, stating that he went from cooperative
to standoffish. Ware testified that at no time did the
defendant ever claim that the victim was lying about
the allegations.5 Defense counsel did not object to
Ware’s testimony.
The Hartford interview was recorded and the video
recording was entered into evidence without objection
and played for the jury. The video captured the full
Hartford interview of the defendant, including the
defendant’s statements at the end of the recording in
response to the question whether the defendant ‘‘ever
took [the victim] to a hotel where there was a guy there
that said to you why are you bringing a kid here in
Windsor.’’ The defendant responded that he had to ‘‘stop
right now.’’ He further stated that ‘‘[t]his is a serious
accusation’’ and ‘‘[w]hat I say now will be used against
me period. Whether I’m right or wrong right now. . . .
[I]f I answer it wrong or incorrectly and it proved to
be otherwise then, you know, how can I defend myself
properly.’’ He mentioned a lawyer, specifically stating
at one point: ‘‘Can’t answer it. I have to get a lawyer.’’
At no point during the presentation of the video did
defense counsel object. The court took a recess and
then the prosecutor resumed direct examination. On
cross-examination, defense counsel asked Ware
whether it was fair to say that the defendant never
admitted during the Hartford interview that anything
occurred between him and the victim.6
Boland was also present during the Hartford inter-
view but did not question the defendant. Boland testi-
fied that the defendant answered most of the questions
posed by Ware, but ‘‘[t]owards the end he decided he
wasn’t going to answer any more questions.’’ Boland
stated that the defendant did not claim during the Hart-
ford interview that the victim was lying about the allega-
tions.7 Defense counsel did not object to Boland’s
testimony on this point. On cross-examination, in
response to questions by defense counsel, Boland testi-
fied that the interviewing officers did not ask the defen-
dant whether he had any sexual activity with the victim,
because they ‘‘never got to that point.’’8
The state also presented the testimony of Winiger,
who interviewed the defendant at the Windsor Police
Department on October 10, 2013 (Windsor interview).
Winiger called the defendant and asked if he would
come to the police department to speak with him. The
defendant drove himself to the Windsor interview. Wini-
ger advised the defendant of his Miranda rights.9 The
defendant signed a waiver of rights form, which was
entered into evidence without objection. Winiger testi-
fied regarding the Windsor interview, and explained
how the interview concluded. Specifically, he testified
that the defendant told him that he had a sexually trans-
mitted disease. When Winiger told the defendant that
the victim also had a sexually transmitted disease, the
defendant ended the Windsor interview.10 At no time
during Winiger’s testimony did defense counsel object.
At the conclusion of trial, the jury found the defen-
dant guilty of all charges. The court sentenced the
defendant to a total effective sentence of forty-five years
imprisonment. This appeal followed.
On appeal, the defendant claims that the state vio-
lated his constitutional right to remain silent, as set out
in Doyle, by introducing evidence of his post-Miranda
silence. Specifically, the defendant challenges the intro-
duction of the following evidence: (1) Boland’s testi-
mony that the defendant refused to answer further
questions and that he never claimed the victim was
lying about the allegations; (2) Ware’s testimony that
the defendant refused to speak further; (3) the video
recording of the Hartford interview depicting the defen-
dant’s invocation of his right to remain silent and his
right to an attorney; and (4) Winiger’s testimony that
the defendant exercised his right to remain silent.11
‘‘In Doyle . . . 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. The court
based its holding [on] two considerations: First, it noted
that silence in the wake of Miranda warnings is insolu-
bly ambiguous and consequently of little probative
value. Second and more important[ly], it observed that
while it is true that the Miranda warnings contain no
express assurance that silence will carry no penalty,
such assurance is implicit to any person who receives
the warnings. In such circumstances, it would be funda-
mentally unfair and a deprivation of due process to
allow the arrested person’s silence to be used to
impeach an explanation subsequently offered at trial.’’
(Internal quotation marks omitted.) State v. Holmes,
176 Conn. App. 156, 189–90, 169 A.3d 264, cert. granted
on other grounds, 327 Conn. 984, 175 A.3d 561 (2017);
see also State v. Ramos, 178 Conn. App. 400, 408–409,
175 A.3d 1265 (2017), cert. denied, 327 Conn. 1003,
A.3d (2018). ‘‘A Doyle violation also encompasses
a prosecutor’s comment upon a defendant’s statement
requesting an attorney. . . . With respect to post-
Miranda warning . . . silence does not mean only
muteness; it includes the statement of a desire to remain
silent, as well as of a desire to remain silent until an
attorney has been consulted.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Daugaard, 231
Conn. 195, 211, 647 A.2d 342 (1994), cert. denied, 513
U.S. 1099, 115 S. Ct. 770, 130 L. Ed. 2d. 666 (1995).
The defendant acknowledges that he did not preserve
his Doyle claim at trial and now seeks review pursuant
to 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).12 ‘‘[T]he inability to meet
any one prong requires a determination that the defen-
dant’s claim must fail. . . . The appellate tribunal is
free, therefore, to respond to the defendant’s claim by
focusing on whichever condition is most relevant in the
particular circumstances.’’ (Citation omitted; internal
quotation marks omitted.) State v. Soto, 175 Conn. App.
739, 755, 168 A.3d 605, cert. denied, 327 Conn. 970, 173
A.3d 953 (2017). The first two prongs of the Golding
analysis are satisfied because the record is adequate
for our review and the defendant’s claim that the state
violated his right to remain silent is of constitutional
magnitude. See, e.g., State v. Lockhart, 298 Conn. 537,
580, 4 A.3d 1176 (2010). We conclude that the defen-
dant’s claim fails under the fourth prong of Golding
because if there was a Doyle violation, it was harmless
beyond a reasonable doubt.
‘‘Doyle violations are . . . subject to harmless error
analysis. . . . The harmless error doctrine is rooted in
the fundamental purpose of the criminal justice system,
namely, to convict the guilty and acquit the innocent.
. . . Therefore, whether an error is harmful depends
on its impact on the trier of fact and the result of the
case. . . . [B]efore a federal constitutional error can
be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt.
. . . The state bears the burden of demonstrating that
the constitutional error was harmless beyond a reason-
able doubt. . . . That determination must be made in
light of the entire record [including the strength of the
state’s case without the evidence admitted in error].’’
(Internal quotation marks omitted.) State v. Jackson,
150 Conn. App. 323, 358–59, 90 A.3d 1031, cert. denied,
312 Conn. 919, 94 A.3d 641 (2014); see also State v.
Montgomery, 254 Conn. 694, 717–18, 759 A.2d 995
(2000) (Doyle violations subject to harmless error
analysis).
‘‘A Doyle violation may, in a particular case, be so
insignificant that it is clear beyond a reasonable doubt
that the jury would have returned a guilty verdict with-
out the impermissible question or comment upon a
defendant’s silence following a Miranda warning.
Under such circumstances, the state’s use of a defen-
dant’s [post-Miranda] silence does not constitute
reversible error. . . . The [error] has similarly been
[found to be harmless] where a prosecutor does not
focus upon or highlight the defendant’s silence in his
cross-examination and closing remarks and where the
prosecutor’s comments do not strike at the jugular of
the defendant’s story. . . . The cases wherein the error
has been found to be prejudicial disclose repetitive
references to the defendant’s silence, reemphasis of
the fact on closing argument, and extensive, strongly-
worded argument suggesting a connection between the
defendant’s silence and his guilt.’’ (Internal quotation
marks omitted.) State v. Montgomery, supra, 254
Conn. 718.
Our review of the record convinces us that the admis-
sion of the challenged evidence concerning the defen-
dant’s invocation of his rights was harmless beyond a
reasonable doubt. In the present case, although there
were multiple references to the defendant’s invocation
of his rights, the remaining considerations that factor
into the analysis of harm weigh in favor of the conclu-
sion that any claimed error was harmless beyond a
reasonable doubt. Accordingly, we decline to decide
whether the state committed a Doyle violation, and
we conclude that any claimed error was harmless and
would not have affected the verdict.13 See, e.g., State v.
Francis, 83 Conn. App. 226, 236, 849 A.2d 873, cert.
denied, 270 Conn. 912, 853 A.2d 529 (2004); see also
State v. Pepper, 79 Conn. App. 1, 15, 828 A.2d 1268
(2003) (‘‘[a]ssuming without deciding that the state vio-
lated Doyle in its question posed to the defendant, we
conclude that any impropriety was harmless beyond a
reasonable doubt’’), aff’d, 272 Conn. 10, 860 A.2d 1221
(2004); State v. Kuranko, 71 Conn. App. 703, 711, 803
A.2d 383 (2002) (‘‘[a]ssuming arguendo that a Doyle
violation occurred’’ and concluding ‘‘that it was harm-
less beyond a reasonable doubt’’).14
Here, although the defendant’s invocation of his
rights was described by more than one witness and
was depicted on a video presented in evidence,15 the
prosecutor did not thereafter focus or comment on the
defendant’s silence. The prosecutor made no suggestion
to the jury that it should draw an inference of guilt
based on the defendant’s exercise of his Miranda rights.
See State v. Bereis, 117 Conn. App. 360, 378, 978 A.2d
1122 (2009) (Doyle violation harmless where, inter alia,
no ‘‘correlation [was made] between the defendant’s
refusal to answer questions and her guilt’’). In fact,
the prosecutor made no comment on the defendant’s
invocation of his Miranda rights during closing argu-
ment, and did not otherwise highlight the challenged
evidence to the jury. See State v. Daugaard, supra, 231
Conn. 213. This is not a case in which the prosecutor
made a ‘‘strongly-worded argument suggesting a con-
nection between the defendant’s silence and his guilt.’’
(Internal quotation marks omitted.) Cf. State v. Hughes,
45 Conn. App. 289, 292–93, 296, 696 A.2d 347 (1997)
(error was not harmless where detective testified ‘‘no
less than eight different times as to the defendant’s
request not to talk about the accusations,’’ including
that he understood the defendant’s unwillingness to
talk about it as ‘‘a form of guilt’’ and state’s attorney,
in closing argument, ‘‘equated the defendant’s post-
Miranda silence with guilt and consciousness of guilt’’
[internal quotation marks omitted]).
Moreover, the challenged evidence was not ‘‘linked
to any exculpatory story advanced by the defense.’’
State v. Jackson, supra, 150 Conn. App. 361. The evi-
dence that the defendant claims violated Doyle was
wholly unrelated to the defendant’s exculpatory theo-
ries. See State v. Camacho, 92 Conn. App. 271, 284–85,
884 A.2d 1038 (2005) (concluding that any Doyle viola-
tion was harmless beyond a reasonable doubt, noting
that jury may have found the defendant’s alibi defense
‘‘weak’’ because ‘‘rebuttal witnesses could not give a
consistent story,’’ and stating that prosecutor’s chal-
lenged remarks ‘‘were not used to attack the defendant’s
alibi’’), cert. denied, 276 Conn. 935, 891 A.2d 1 (2006).
Although the defendant did not testify, he called two
witnesses on his behalf, the victim’s mother and his
wife, to advance the following defenses: (1) someone
other than the defendant had engaged in anal inter-
course with the victim, (2) the victim lied about who
had abused him because he did not want to admit that
he was gay, and (3) the defendant was out of state for
work at the time of the final instance of abuse. The
jury reasonably may have found these defenses weak,
given the inconsistent evidence presented in support
of them.
The defendant generally sought to attack the credibil-
ity of the victim through the victim’s mother, who
opined that the victim was accusing the defendant of
abuse because the victim did not want to admit that
he was gay. The victim’s mother also testified that she
believed the victim had engaged in anal intercourse with
a teenager, not with the defendant, based on Facebook
messages she had seen between the victim and another
teenager that indicated that the victim had engaged in
anal intercourse for the first time with that teenager in
August, 2013. The defendant points to this testimony
as evidence ‘‘as to who could have committed this crime
other than the defendant.’’ This evidence was contra-
dicted in two ways. First, the state presented medical
evidence that the victim suffered physical injuries and
psychological distress as a result of sexual abuse. Spe-
cifically, Dr. Livingston observed open sores in the area
above the victim’s anus. Dr. Livingston also testified that
the victim demonstrated symptoms of psychological
distress, including experiencing flashbacks of the
abuse. On the basis of this evidence, the jury reasonably
could have rejected the defense’s suggestion that a first-
time, consensual sexual encounter with another teen-
ager would produce the victim’s injuries. Second, the
victim’s mother’s testimony was called into question by
the six page written statement she gave to police. The
victim’s mother testified that she had seen the Facebook
messages ‘‘[a] week or two’’ after August 27, 2013. She
gave her statement to police on November 4, 2013,
approximately two months later. Despite having made
several corrections to the police statement for accu-
racy, she failed to mention the Facebook messages she
saw. She testified that she did not provide the informa-
tion regarding the Facebook messages to the police at
the time of her statement because there were ‘‘too many
things going on at that time’’ and because she ‘‘was still
believing in [the victim.]’’16
Through the testimony of both the victim’s mother
and the defendant’s wife, the defendant sought to estab-
lish that he was not in the state at the time of the final
sexual assault in August, 2013. The defendant’s wife
testified that the defendant worked as a long haul truck
driver and would be out of the area for periods of time.
Specifically, she testified that the defendant was away
working as a long haul truck driver in August, 2013,
and that he was away from home at the time of their
anniversary, in July, and her birthday, in August. She
testified that he did not return from these particular
work trips until ‘‘maybe the first week of September.’’
The victim’s mother testified that the defendant was in
Florida on a job in August, 2013. This testimony was
directly contradicted by other evidence. During the
Hartford interview, which was conducted on September
10, 2013, the defendant told police officers that he had
not worked in a couple of months. The defendant’s
wife’s testimony was further contradicted in that she
testified that they were not separated while the defen-
dant told police officers that they were separated.
Moreover, apart from the challenged evidence related
to the defendant’s post-Miranda silence, the state
established the guilt of the defendant beyond a reason-
able doubt.17 See State v. Daugaard, supra, 231 Conn.
213. The victim, sixteen years old at the time of trial,
testified at length and in detail regarding the assaults
and consistently identified the defendant as his abuser
to police, to medical personnel, to department person-
nel, and during his testimony at trial. The victim was
also able to provide locations where the abuse
occurred, both during interviews with the police and
during his testimony at trial. Specifically, he had made
a drawing of the surroundings, including a nearby bowl-
ing alley, of the motel where the defendant had abused
him, and the victim was able to identify the motel while
driving around with Winiger.18 The defendant told police
during the Hartford interview that he had taken the
victim and the victim’s mother to a birthday party at a
hotel, which he said ‘‘might be past’’ a bowling alley.
Both in her testimony and in her written statement, the
victim’s mother denied that the defendant had taken
them to a party.
The state not only presented medical evidence that
the victim had been sexually abused, but also presented
evidence from which the jury reasonably could have
determined the defendant was the abuser. The defen-
dant concedes that the medical evidence ‘‘does support
the claim that [the victim] was sodomized and subjected
to terrible sexual abuse. It does not, however, support
a claim that the defendant was the one who committed
the acts.’’ We disagree. Dr. Livingston testified that upon
admission to the hospital in August, 2013, the victim,
who was fourteen years old at the time, was diagnosed
with a sexually transmitted disease. The state also pre-
sented evidence that the defendant told Winiger that
he had tested positive for a sexually transmitted dis-
ease. The victim further testified that the defendant was
the only male sexual partner he ever had.
In sum, we conclude that the admission of the chal-
lenged evidence concerning the defendant’s invocation
of his Miranda rights was harmless beyond a reason-
able doubt. Most importantly, the state never referenced
the challenged evidence in closing argument, nor did
it otherwise use the evidence in such a way as to suggest
the defendant’s guilt. Moreover, here, as in State v.
Daugaard, supra, 231 Conn. 213, the references to the
defendant’s invocation of his constitutional rights were
‘‘marginal in the context of the entire trial.’’ The refer-
ences were unrelated to the defendant’s defenses,
which were inherently weak. Lastly, the state’s case,
apart from the challenged evidence, was strong. Accord-
ingly, the defendant is unable to prevail under the fourth
prong of Golding.
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
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault 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.
3
Specifically, Dr. Livingston noted that the victim’s symptoms included:
‘‘appetite and sleep disturbance, irritability, having hyperarousal and having
difficulty sleeping because he was so scared and aroused. Having flashbacks
of the abuse and all of those symptoms taken together could be consistent
with post-traumatic stress and with depression.’’ The victim told Dr. Living-
ston that he had had ‘‘thoughts of suicide at one time.’’
4
The following colloquy took place between the prosecutor and Ware:
‘‘Q. Now, did the defendant invoke his right to speak with an attorney at
any time during the interview?
‘‘A. Yeah. Sometime in the middle of the interview.
‘‘Q. And when he invoked his right to speak with an attorney, what
occurred?
‘‘A. The interview stopped.
‘‘Q. And did the—at any time did the defendant invoke his right to remain
silent during the interview?
‘‘A. No.
‘‘Q. And did the defendant agree to answer your questions without any
attorney being present up until the point he invoked his right to speak with
an attorney?
‘‘A. Yes.
‘‘Q. And did you promise the defendant anything in return for making
his statement?
‘‘A. No.
‘‘Q. And did you coerce the defendant in any way into making his statement
with threat or action?
‘‘A. No, ma’am.
‘‘Q. And to the best of your knowledge was the defendant’s statement
freely and voluntarily given?
‘‘A. Yes, ma’am.
‘‘Q. But did the defendant ever ask to stop the questioning?
‘‘A. No.
‘‘Q. I thought you stated earlier—
‘‘A. I’m sorry.
‘‘Q. —he did stop at some point?
‘‘A. Yes. He did stop at some point. I’m sorry.
‘‘Q. And when he stopped questioning what occurred?
‘‘A. The interview stopped.
‘‘Q. Was he free to leave at that point?
‘‘A. Yes.
‘‘Q. And did he leave?
‘‘A. Yes.
‘‘Q. Did the defendant make a statement in response to each and every
one of your questions up and to the point he stopped the interview?
‘‘A. Yes, ma’am.
‘‘Q. And did you have the defendant sign a waiver of rights form prior to
your interview with him?
‘‘A. Yes.’’
5
The following colloquy took place between the prosecutor and Ware:
‘‘Q. Now, at the beginning of your interview with the defendant, what did
you personally observe his demeanor to be?
‘‘A. Very cooperative.
‘‘Q. Does—did his demeanor remain cooperative throughout the
interview?
‘‘A. No, ma’am.
‘‘Q. When did it change?
‘‘A. When I asked him the allegations of what he did to [the victim].
‘‘Q. And how did you personally observe his demeanor to change?
‘‘A. He became standoffish, a pause in his questions.
‘‘Q. Now, at any time during your discussion with the defendant, did the
defendant ever claim that the victim was lying about the allegations against
him or making these allegations up?
‘‘A. No, ma’am.’’
6
The following colloquy took place between defense counsel and Ware:
‘‘Q. Is it fair to say that even though the interview was cut short that [the
defendant] indicated in a broad spectrum that nothing, no incidents of a
sexual nature ever occurred between him and [the victim]?
‘‘A. Sir, he had a chance to explain it, sir.
‘‘Q. Excuse me?
‘‘A. He had a chance to explain, sir.
‘‘Q. Oh, I understand, but that wasn’t my question. Was there ever any
representation, statement by [the defendant] that—no, nothing ever
occurred between [the victim] and [the defendant]?
‘‘A. You’re right, sir, he didn’t say that?
‘‘Q. What?
‘‘A. He didn’t say that, sir.
‘‘Q. What did he say? In other words, was the question never raised or
did he say no, like, nothing ever happened, but you would have like[d] to
continue this interview, I understand—
‘‘A. Yes.
‘‘Q. —is that a fair statement?
‘‘A. Yes, sir.
‘‘Q. Sure. Okay. But in the interview, it came to a point where at least
[the defendant] knew why he was there?
‘‘A. Yes, sir.
‘‘Q. Right. Okay. And in a broader sense not—you would have like[d] to
go on and have more questions, but it’s fair to say he never admitted that
anything occurred between anything of a sexual nature ever occurred
between [the defendant] and [the victim]; is that correct?
‘‘A. Yes, sir.
‘‘Q. In the broadest of your questions, did you ever—did he ever in a
sense deny in a broad sense nothing, nothing ever happened?
‘‘A. No, sir.
‘‘Q. Never—never—is it fair to say that [the defendant’s] demeanor from
your perspective or it’s a rather long interview, would you describe as
appearing as you perceived him in watching it again today from your perspec-
tive was he at least up until the point where it was stopped was he chatty,
nervous, defiant; how would you describe him in that interview?
‘‘A. Up until that point, sir, he was very cooperative.
‘‘Q. Cooperative?
‘‘A. Yes, sir.
‘‘Q. I have no additional questions. Thank you.’’
7
The following colloquy took place between the prosecutor and Boland:
‘‘Q. Did the defendant answer all of the questions posed to him by Detective
Ware that day?
‘‘A. Mostly.
‘‘Q. And then what occurred?
‘‘A. Towards the end he decided he wasn’t going to answer any more
questions.
‘‘Q. And officer, at any time during the interview in which you were
present, did the defendant ever claim that the victim was lying about the
allegations against him or making these allegations up?
‘‘A. No, he did not.’’
8
The following colloquy took place between defense counsel and Boland:
‘‘Q. All right. Were any of the questions essentially did you have any
sexual activity with [the victim]? [Were] any of the questions essentially
. . . that question?
‘‘A. We never got to that point.
‘‘Q. Did [the defendant] deny that he had any sexual activity with [the
victim]?
‘‘A. No, he did not.
‘‘Q. And so he—what were the essential questions that you asked him
before the interview terminated?
‘‘A. Most of the questions we wanted to know what the relationship was
as to, you know, how they interacted with each other. The relationship with
[the victim’s mother] and that sort of stuff. He shut down when we started
posing more direct questions.
‘‘Q. But is it fair to say that he never stated that there was any inappropriate
activity between [the victim] and himself?
‘‘A. We never got to that point.
‘‘Q. Never got to that point. And he never was casting dispersions on [the
victim] that he’s a liar or anything like that?
‘‘A. No, he did not.
‘‘Q. Is it fair to say the interview got to a certain point and then it ended?
‘‘A. He ended it, yes.
‘‘Q. I have no additional questions.’’
9
The following colloquy took place between the prosecutor and Winiger:
‘‘Q. Now, did the defendant invoke his right to speak with an attorney at
any time during the interview?
‘‘A. Right at the end of the interview.
‘‘Q. And did the defendant invoke his right to remain silent at any time
during the interview?
‘‘A. He stated to me this interview was over.
‘‘Q. Did the defendant agree to answer your questions without an attorney
and without the presence of an attorney until the point that he stated he
wanted the interview to end?
‘‘A. Oh, yes, ma’am, he did.
‘‘Q. And did you promise the defendant anything in return for making
his statement?
‘‘A. No.
‘‘Q. And did you coerce the defendant in any way to make his statement
under threat or promise?
‘‘A. No, ma’am.
‘‘Q. To your best of your knowledge was the defendant’s statement freely
and voluntarily given?
‘‘A. Yes.
‘‘Q. Now, at some point did the defendant stop the questioning?
‘‘A. Yes, he did.
‘‘Q. And what did he say?
‘‘A. When I brought out what the allegation was against him he told me
that I was trying to trick him just like the Hartford police had done and he
said this interview is over.
‘‘Q. And when he said this interview is over what occurred?
‘‘A. I got up from my chair, I opened the door, I escorted him to the front
lobby, I opened the door for him, I watched him get in the car that he came
in and he left.
‘‘Q. But when he was answering questions, did the defendant make a
statement in response to each one of your questions?
‘‘A. Yes, he did.
‘‘Q. And did you have the defendant sign a waiver of rights form prior to
your interview with him?
‘‘A. I did.’’
10
The following colloquy took place between the prosecutor and Winiger:
‘‘Q. Did you tell the defendant that [the victim] had also been diagnosed
with a sexually transmitted disease?
‘‘A. Not til after he had made that admission.
‘‘Q. Okay. And after you notified him of that what was his response to
hearing that [the victim] had been diagnosed with a sexually transmitted
disease?
‘‘A. That’s when the interview stopped. That’s when he said that I was
trying to trick him just like the Hartford cops did and he said the interview
was over and he got up and that was the end of it.
‘‘Q. Now, did you make the defendant aware of the allegations against
him by [the victim]?
‘‘A. Yes, I did.
‘‘Q. And what did you tell the defendant those allegations were?
‘‘A. I told him that he had made the allegation that he had sexually abused
the boy.
‘‘Q. Okay. And what was the defendant’s physical response to your
informing him that he had been alleged of sexual abuse of [the victim]?
‘‘A. That was when we went back to when I brought up the first initial
explanation of when he had that kind of defeated let the air out type of
thing rounded his shoulders.
‘‘Q. Now, at the completion of your discussion with the defendant, did
you give the defendant the opportunity to give a signed, sworn, written
statement?
‘‘A. As I was interviewing him I had been typing a statement on the
computer in the interview room, but when he said that we were done that
was it, so I wasn’t able to get him to, you know, give a statement or sign
anything or to make anything official.
‘‘Q. Now, at any time during your discussions with the defendant, did the
defendant ever claim that the victim was lying about the allegations against
him or making these allegations up?
‘‘A. No, ma’am, I don’t recall that.’’
11
The defendant does not claim that the state violated Doyle by introducing
the two signed waiver of rights forms into evidence. In his reply brief, the
defendant, discussing the waiver forms, states ‘‘[o]nce again, it is not the
initial waiver by [the] defendant which violates Doyle, but the subsequent
exercise of his constitutional right to terminate the interview.’’
12
‘‘[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
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, 213 Conn. 239–40, as modified by In re Yasiel R., supra,
317 Conn. 781.
13
The state argues that it ‘‘properly proffered [the challenged] evidence
to explain the course of the police investigations and, therefore, did not
violate Doyle.’’ Our Supreme Court has recognized that ‘‘[r]eferences to
one’s invocation of the right to remain silent [are] not always constitutionally
impermissible . . . [and are] allowed . . . in certain limited and excep-
tional circumstances. . . . Specifically, the state is permitted some leeway
in adducing evidence of the defendant’s assertion of that right for purposes
of demonstrating the investigative effort made by the police and the sequence
of events as they unfolded . . . as long as the evidence is not offered to
impeach the testimony of the defendant in any way.’’ (Citation omitted;
internal quotation marks omitted.) State v. Lockhart, supra, 298 Conn.
581–82.
The state further argues that ‘‘[a]lthough the defendant refers to his state-
ments that he had to ‘stop’ the interview as evidence of his invocation of
this right to remain silent . . . these comments instead show his vacillation
about participating in the interview,’’ and claims that ‘‘Doyle and its progeny
do not protect a defendant’s ‘selective silence.’ ’’ (Citation omitted; emphasis
omitted.) See State v. Ramos, supra, 178 Conn. App. 409.
Because we conclude that any claimed error was harmless beyond a
reasonable doubt, we need not reach whether introduction of the challenged
evidence was permissible to demonstrate investigative efforts or because
the defendant remained ‘‘selectively silent.’’
14
‘‘Although a finding of harmless error in a situation where the state
improperly comments upon the defendant’s postarrest silence is the excep-
tion to the rule, we find that the present case fits the exception rather than
the rule.’’ (Internal quotation marks omitted.) State v. Williams, 27 Conn.
App. 654, 662, 610 A.2d 672, cert. denied, 223 Conn. 914, 614 A.2d 829 (1992).
15
In addition to our conclusion that the admission of the challenged
evidence was harmless beyond a reasonable doubt, we also conclude that the
defendant waived his Doyle claim as to the evidence depicted in the video.
‘‘A defendant in a criminal prosecution may waive one or more of his or
her fundamental rights. . . . In the usual Golding situation, the defendant
raises a claim on appeal which, while not preserved at trial, at least was
not waived at trial.’’ (Internal quotation marks omitted.) State v. Hudson,
122 Conn. App. 804, 813, 998 A.2d 1272, cert. denied, 298 Conn. 922, 4 A.3d
1229 (2010). ‘‘[A] constitutional claim that has been waived does not satisfy
the third prong of the Golding test because, in such circumstances, we
simply cannot conclude that injustice [has been] done to either party . . .
or that the alleged constitutional violation . . . exists and . . . deprived
the defendant of a fair trial . . . . To reach a contrary conclusion would
result in an ambush of the trial court by permitting the defendant to raise
a claim on appeal that his or her counsel expressly had abandoned in the
trial court.’’ (Citations omitted; emphasis omitted; internal quotation marks
omitted.) State v. Hampton, 293 Conn. 435, 448–49, 988 A.2d 167 (2009).
‘‘[W]aiver is [t]he voluntary relinquishment or abandonment—express or
implied—of a legal right or notice. . . . In determining waiver, the conduct
of the parties is of great importance. . . . [W]aiver may be effected by
action of counsel. . . . When a party consents to or expresses satisfaction
with an issue at trial, claims arising from that issue are deemed waived and
may not be reviewed on appeal. . . . Thus, [w]aiver . . . involves the idea
of assent, and assent is an act of understanding.’’ (Internal quotation marks
omitted.) State v. Cancel, 149 Conn. App. 86, 100, 87 A.3d 618, cert. denied,
311 Conn. 954, 97 A.3d 985 (2014).
The state relies on State v. Boyd, 295 Conn. 707, 750 n.26, 992 A.2d 1071
(2010), cert. denied, 562 U.S. 1224, 131 S. Ct. 1474, 179 L. Ed. 2d 314 (2011),
in support of its argument that the defendant waived his Doyle claim by his
counsel’s representation at trial that he did not object to the introduction
of the video. In Boyd, a detective testified as to the defendant waiving
his Miranda rights and talking with the police. ‘‘Interspersed among . . .
exculpatory statements,’’ the defendant had also stated that he was not
ready to ‘‘tell the police everything that he knew about the murder and that
he was not willing to discuss the crime scene.’’ Id., 750. In a footnote, our
Supreme Court stated: ‘‘Defense counsel expressly stated that she did not
object to [the detective’s] testimony that, after the defendant told [the detec-
tive] that his question whether the defendant had been in Norwalk with the
victim on the night of the murder was a very good one, the defendant stated
that he was not going to discuss the crime scene. The defendant’s objection
to that testimony was, therefore, waived.’’ Id., 750 n.26; see also State v.
Cancel, supra, 149 Conn. App. 101 (defendant waived fourteenth amendment
due process claim regarding joinder where, inter alia, defense counsel
‘‘expressly stated that there was no objection to the motion’’); State v.
Hudson, supra, 122 Conn. App. 814 (confrontation claim was waived, when,
‘‘at trial, defense counsel affirmatively assented to the playback of certain
testimony without requesting the playback of additional testimony and with-
out asking for the cautionary instruction that he now, on appeal, argues
was constitutionally required’’).
The record in the present case demonstrates that defense counsel not
only assented to the introduction of the video but also referenced the video
in his cross-examination and further failed to object when the video was
replayed at the jury’s request during deliberations. As noted previously, at
the time of the introduction of the video, defense counsel expressly stated:
‘‘[n]o objection, Your Honor.’’ During his cross-examination of Ware, defense
counsel referred to the video, asking ‘‘is it fair to say that [the defendant’s]
demeanor from your perspective . . . would you describe as appearing as
you perceived him in watching it again today from your perspective was
he at least up until the point where it was stopped was he chatty, nervous,
defiant, how would you describe him in that interview?’’ (Emphasis added.)
Moreover, during deliberations when the jury requested to rewatch a portion
of the video and to review the testimony of the victim, defense counsel
responded to the request by inquiring as to ‘‘logistics’’ and tried to recall
his ‘‘own timeline’’ regarding how long the two reviews would take. He
made no objection to the jury rewatching the video. We thus conclude that
because the defendant has waived his claim with respect to the video, there
is no existing constitutional violation, and thus the claim that the admission
of the video into evidence violated Doyle fails to satisfy the third prong
of Golding.
16
In her statement, she noted that in April or May, 2013, when the victim
first told her about the abuse but then denied it, she ‘‘left it at that but [she]
still had [her] doubts because he said it too many times.’’ She further stated
that the victim ‘‘does fabricate things but this time it didn’t seem so.’’
17
The defendant claims that ‘‘[i]f the jury wanted to rehear the taped
interview of this defendant by the police, including his exercise of his right
to remain silent, it is proof that a Doyle violation was not insignificant, at
least in the minds of the jury.’’ We first note that the defendant incorrectly
claims that ‘‘the only piece of evidence the jury wanted to hear was the
taped interview . . . .’’ The record reveals that the jury also asked to review
the testimony of the victim. The defendant concedes that he ‘‘did make
some damaging admissions’’ during the Hartford interview and recognizes
that he ‘‘admitted he was alone with [the victim] and to taking him to some
of the places where [the victim] claims to have been sexually assaulted
. . . .’’ Accordingly, we reject the defendant’s claim that the jury’s request to
rewatch the video compels the conclusion that the jury found the challenged
portion of the Hartford interview significant, particularly in light of the
nonchallenged statements the defendant made during that interview and
the relationship between those statements and the defenses presented dur-
ing trial.
Moreover, defense counsel’s failure to object, and affirmative representa-
tion that he had no objection, to the introduction of the video shows that
defense counsel did not consider the video to be prejudicial. See State v.
Canty, 223 Conn. 703, 712, 613 A.2d 1287 (1992) (noting, in harmless error
analysis, that trial counsel’s failure to object ‘‘indicate[d] that he did not
consider’’ the challenged evidence ‘‘to have prejudiced the defendant’’).
18
The defendant relies upon Hill v. Turpin, 135 F.3d 1411, 1415–16 (11th
Cir. 1998) for the proposition that ‘‘repeated and deliberate’’ reference to a
defendant’s silence has a substantial influence on the jury’s verdict. In Hill,
the prosecutor, despite repeated warnings prior to trial that the state was
precluded from introducing evidence regarding the defendant’s request for
counsel: (1) elicited testimony from the chief investigator regarding the
defendant’s exercise of his rights, (2) used the defendant’s silence to impeach
his testimony at trial by asking him ‘‘[d]id you ever try to explain all of this
to anybody before today?’’ and (3) highlighted during closing argument the
defendant’s ‘‘failure to tell his exculpatory story to the police at the time
of his arrest by contrasting [the defendant’s] silence with the statements
made by other scene witnesses.’’ Id., 1414–15. Having concluded that the
prosecutor violated Doyle, the United States Court of Appeals for the Elev-
enth Circuit further determined that the violation was not harmless, citing
‘‘the repeated and deliberate nature’’ of the violations, and ‘‘the significant
weaknesses in the state’s case.’’ Id., 1416–17.
Hill is distinguishable in that the prosecutor in the present case neither
used the defendant’s silence to impeach his testimony nor referenced the
defendant’s silence in closing argument. Moreover, this is not a case, like
Hill, where there were ‘‘significant weaknesses in the state’s case’’ against
the defendant.