State v. D'Amato

STATE OF CONNECTICUT v. MICHAEL A. D'AMATO

AC 36877

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued December 1, 2015

March 8, 2016

Gruendel, Alvord and Prescott, Js.

(Appeal from Superior Court, judicial district of New Haven, geographical area number twenty-three, B. Fischer, J.)

Mark Rademacher, assistant public defender, for the appellant (defendant).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Kevin Shay, senior assistant state's attorney, for the appellee (state).

Opinion

ALVORD, J. The defendant, Michael A. D'Amato, appeals from the trial court's judgment of conviction, rendered after a jury trial, of larceny in the second degree by defrauding a public community in violation of General Statutes §§ 53a-119 (6) (C)¹ and 53a-123 (a) (4),² and tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1).³ On appeal, the defendant claims that the trial court (1) improperly "denie[d] [the defendant] his right to present a defense when the court prevent[ed] [a witness] from invoking his fifth amendment right in front of the jury"; (2) improperly allowed the prosecutor to state to "the jury what [the privileged witness'] testimony would have been and . . . fail[ed] to tell the jury not to draw any inference from [the witness'] absence from the trial"; and (3) "wrongly prevent[ed] impeachment of [East Haven police Sergeant Gary] DePalma, a key state's witness, who said [the privileged witness] put the money in the mailbox."⁴ We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. On March 12, 2011, East Haven police Officer Dennis Spaulding arrested three suspects and seized drugs and more than $1300 in cash from their car. At the East Haven Police Department (department), Spaulding counted the money in front of his supervisor, DePalma. DePalma signed the department's evidence log and ensured that the seized money was properly recorded. According to DePalma, the money was placed in two plastic evidence bags. DePalma testified that he then watched Spaulding go into the department's evidence closet. Because of his positioning, he could not actually see Spaulding place the sealed bags in the evidence box, but he heard the evidence box open and close. The closet was located off of an evidence processing room, an area to which several officers had access. The locked closet was approximately six feet by six feet in dimension. The key for the closet was kept behind the duty supervisor's desk. Inside the closet was the evidence box, which was an old United States Post Office mailbox. Evidence was placed in a drawer at the top of the evidence box. Once the drawer was closed, the evidence dropped to the bottom of the evidence box and was retrieved by unlocking the bottom door.⁵

On March 17, 2011, five days after Spaulding seized the money, Sergeant George Kammerer, the department's evidence officer, went to retrieve evidence from the evidence box and discovered that the money was missing. Kammerer testified that he and another officer conducted a thorough search of the evidence closet, but they could not find the money. The state police were called in to investigate.

Within a few days after the money was discovered missing, East Haven police Captain Henry Butler III and East Haven police Commissioner Fred Brow tested the lock⁶ on the evidence box. Butler testified that they pulled on the lower door of the evidence box, and even though it was locked, "it open[ed] a little bit, enough [that] I could stick my hand halfway in there . . . ." He also testified that he believed it would not be possible for a person to squeeze their entire hand into the evidence box nor could they reach to the bottom of the box.

There were several surveillance cameras in the department, but none had a clear shot of the evidence box. The cameras took still pictures eight seconds apart and did not record continuous video.⁷ The state police reviewed footage of who entered and exited the closet during the five days from when the money was seized to when it was discovered missing. The investigation focused on the defendant, who at the time was a detective with the department.

The still shots from the surveillance cameras showed the defendant in the vicinity of the evidence closet on the morning of March 14, 2011. During that time, the closet door is seen opening and closing. The still shots do not actually show the defendant entering or exiting the closet, but they showed him leaving the area with something under his arm. Based on the still shots presented to the jury, it was not perfectly clear what the defendant was holding, but the state suggested that part of the item or items was colored red.⁸ The state argued that this was the evidence bags containing the seized money. Four months after the theft was reported, the defendant was interviewed by state police. Initially, he did not recall being in the evidence closet, but after being shown still pictures he admitted that he may have been in there but could not remember exactly why. The defendant was arrested and charged with the theft of the missing money.

Prior to the trial, the state included Spaulding on its witness list, but it was informed by his counsel that he would be invoking his fifth amendment privilege against self-incrimination. The state subpoenaed Spaulding, and during the trial but outside the presence of the jury, Spaulding stated that he would invoke his fifth amendment right if he was required to testify. After the time of the alleged theft and prior to the commencement of the trial, Spaulding had been charged and convicted of federal crimes for civil rights violations and the obstruction of justice in relation to his conduct as an East Haven police officer. Spaulding's counsel informed the court that he had advised Spaulding not to testify because he intended to appeal his conviction. Defense counsel conducted a voir dire of Spaulding, asking whether he would invoke his privilege against self-incrimination if she were to cross-examine him during the trial. Spaulding stated that he would invoke the privilege. Defense counsel did not request that Spaulding make his invocation of the privilege in the presence of the jury.

On February 3, 2014, the jury found the defendant guilty of larceny in the second degree and tampering with physical evidence. The trial court, B. Fischer, J., sentenced the defendant to five years imprisonment, execution suspended after eighteen months, followed by two years of probation. This appeal followed.

I

The defendant claims on appeal that "[w]here evidence before the jury implicates another suspect as the sole perpetrator of the crime, the court denie[d] [the defendant] his right to present a defense when the court prevent[ed] the suspect from invoking his fifth amendment right in front of the jury." Specifically, the defendant claims that the trial court, sua sponte, should have required Spaulding to invoke his fifth amendment privilege in front of the jury. The defendant raises this claim for the first time on appeal and requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁹ We conclude that the claim fails under the third prong of Golding; the defendant has not demonstrated a violation of a constitutional right and deprivation of a fair trial.¹⁰

"It is true that '[t]he right to offer the testimony of witnesses . . . is in plain terms the right to present a defense, [and] the right to present the defendant's version of the facts . . . .' Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). While this sixth amendment right is binding upon the state through the fourteenth amendment, it is also established that 'the right to confront and to cross-examine [witnesses] is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.' Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). The fifth amendment privilege against self-incrimination is one of those interests." (Footnote omitted.) State v. Bryant, 202 Conn. 676, 685, 523 A.2d 451 (1987).

Our Supreme Court has concluded that a defendant's constitutional right to present a defense does not include the absolute right to present a witness to the jury for the sole purpose of invoking his fifth amendment privilege against self-incrimination. Id., 685-87. In Bryant, the defendant requested to present a witness, his brother, who he claimed was the culpable party, for the precise purpose of having him invoke his fifth amendment privilege against self-incrimination in the presence of the jury. Id., 681. Relying on the majority view that such testimony would have a disproportionately prejudicial impact on the jury, the Supreme Court concluded that the trial court correctly barred the jury from hearing the witness invoke his privilege against self-incrimination. Id., 686-87. The court stated: "Neither side has the right to benefit from inferences capable of being drawn by the jury where the privilege is invoked by the witness. . . . Reason and human experience indicate that inferences are certainly suggested by such a tactic; the danger inherent in this circumstance is that the inference or inferences drawn may have little, if any, juristic relation to the issues before the jury. More important, however, is the fact that the inference, whatever it may be, cannot be attacked effectively by cross-examination." (Citation omitted.) Id., 684.

Here, the defendant's right to present a defense was not violated. Furthermore, the defendant seeks to go a step beyond Bryant and require the trial court, sua sponte, to ensure that the jury hears the witness invoke his privilege against self-incrimination. We decline to deviate from the holding in Bryant.

Outside the...