State v. Lee–riveras

130 Conn.App. 607

23 A.3d 1269

STATE of Connecticut

v.Shiran LEE–RIVERAS.

No. 30082.

Appellate Court of Connecticut.

Argued March 17, 2011.Decided Aug. 9, 2011.

John R. Gulash, Bridgeport, for the appellant (defendant).Linda Currie–Zeffiro, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph Harry, senior assistant state's attorney, for the appellee (state).DiPENTIMA, C.J., and GRUENDEL and WEST, Js.DiPENTIMA, C.J.

The defendant, Shiran Lee–Riveras, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a–134 (a)(1) and assault in the first degree in violation of General Statutes § 53a–59 (a)(4). On appeal the defendant claims that (1) his due process right to a fair trial, as guaranteed by the fourteenth amendment to the United State constitution, was violated when the state elicited testimony describing his silence after he had received a Miranda¹ warning in violation of Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and (2) the trial court violated his sixth amendment right to confrontation when it restricted his cross-examination of the state's key witnesses. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 29, 2006, the defendant, Roberto Sanchez, Raul Pagan, Kevin Glenn and another individual, identified only as “R–Dot,” devised a plan to rob a delivery driver.² R–Dot, using his cell phone, placed an order for two pizzas, buffalo wings and two bottles of soda with Crossroads Pizza and requested that the order be delivered to an abandoned house at 297 Dover Street in Bridgeport. R–Dot informed the person who took his order that he would pay with a one hundred dollar bill and requested that the delivery driver bring sufficient change to accommodate his payment. Paulo Carvalho, worked as a delivery driver at Crossroads Pizza and was assigned to deliver R–Dot's order.

At approximately 8:00 p.m., Carvalho arrived at 297 Dover Street with the pizza order. Sanchez and Pagan were waiting for him on the porch, and the defendant, R–Dot and Glenn waited in a dark alley adjacent to the house. Sanchez informed Carvalho that the pizzas were for him but that Carvalho would need to wait to be paid because his mother was upstairs in the bathroom. Carvalho placed the heavy pizzas on the stoop, and then Sanchez pushed him off the stairs. The defendant, R–Dot and Glenn then immediately exited the alley and attacked Carvalho from behind. The defendant, R–Dot, Glenn, Sanchez and Pagan beat Carvalho and dragged him into the alley. During the assault, Glenn took Carvalho's money and another member of the group took his cell phone. Pagan took the bottles of soda. The defendant, R–Dot, Glenn, Sanchez and Pagan then retreated to Glenn's basement, where they split the money and ate the food. Carvalho managed to return to Crossroads Pizza where an ambulance was summoned, and the incident was reported to the police. Carvalho was taken to Bridgeport Hospital where he was treated for lacerations to his face, a broken nose, broken ribs and an injury to his knee that required surgery.

During the subsequent police investigation, Dennis Martinez, a detective with the robbery division of the Bridgeport police department obtained the cell phone number of Sanchez' mother.³ After Martinez spoke with Sanchez' father, Sanchez was brought to the police station two days after the robbery and gave a written statement to police. In his statement, Sanchez admitted to participating in the robbery of Carvalho and implicated the defendant, Glenn, R–Dot and Pagan. Six days later, Pagan gave a written statement to the police admitting his participation in the crime and implicated the same parties. The defendant later was arrested and charged with one count each of robbery in the first degree in violation of § 53a–134 (a)(1), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–48 and 53a–134 (a)(1) and assault in the first degree in violation of § 53a–59 (a)(4).⁴

The defendant's first trial resulted in a verdict of not guilty of conspiracy to commit robbery and a hung jury and mistrial with respect to the remaining two counts. Thereafter, the defendant was again charged with robbery in the first degree and assault in the first degree. The defendant's second trial resulted in a verdict of guilty on both counts. The court rendered judgment in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of seven years incarceration followed by three years of special parole. This appeal followed.

I

The defendant first claims that his due process right to a fair trial as guaranteed by the fourteenth amendment to the United States constitution was violated when the state elicited testimony describing his post- Miranda silence in violation of Doyle v. Ohio, supra, 426 U.S. 610, 96 S.Ct. 2240. ⁵ Specifically, the defendant calls our attention to four instances in the record where he claims that the state improperly elicited testimony of, or commented on, his failure to reveal his alibi to police. Because the defendant did not preserve his claims at trial he seeks review pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).⁶ We conclude that the defendant's right to a fair trial was not violated.

The following additional facts are necessary to resolve this claim. At trial, Martinez testified that he visited the defendant's home twice during his investigation of the robbery. The first visit ended abruptly when Martinez voiced his suspicion that the defendant was involved in the robbery. After Martinez obtained an arrest warrant for the defendant, he visited the defendant's home a second time to take him into custody. Martinez further testified that he “believe[d]” that he gave the defendant a Miranda warning, although the record is unclear precisely when it was given. Martinez also testified that he did not speak with the defendant again after the two encounters with him at the defendant's home.

We set forth the legal principles that guide our analysis and our standard of review. “In Doyle [ v. Ohio, supra, 426 U.S. 610, 96 S.Ct. 2240] ... 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.” (Internal quotation marks omitted.) State v. Lockhart, 298 Conn. 537, 580, 4 A.3d 1176 (2010). 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....” (Citations omitted.) Id., at 581, 4 A.3d 1176. “ 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.” (Internal quotation marks omitted.) State v. Berube, 256 Conn. 742, 752, 775 A.2d 966 (2001). “Because it is the Miranda warning itself that carries with it the promise of protection ... the prosecution's use of silence prior to the receipt of Miranda warnings does not violate due process.” ⁷ (Emphasis added; internal quotation marks omitted.) Id., at 753, 775 A.2d 966. 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. See State v. Leecan, 198 Conn. 517, 531, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986); see also Fletcher v. Weir, 455 U.S. 603, 605–606, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). The defendant's claim raises a question of law over which our review is plenary. See State v. Fluker, 123 Conn.App. 355, 363, 1 A.3d 1216, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).

The defendant first calls our attention to testimony that the state elicited from Martinez during direct examination in its case-in-chief.⁸ After a review of the record, however, we conclude that Martinez commented only on the defendant's failure to reveal his alibi to police prior to his arrest, and the record lacks any indication that the defendant had received a Miranda warning prior to his arrest.⁹ See State v. Leecan, supra, 198 Conn. at 524–25, 504 A.2d 480 (no Doyle violation where record lacks indication that Miranda warning preceded referenced silence); see also Fletcher v. Weir, supra, 455 U.S. 603, 102 S.Ct. 1309. Accordingly, this claim fails under Golding's first prong. See State v. Berube, supra, 256 Conn. at 751, 775 A.2d 966.

The defendant next claims that a Doyle violation occurred during the state's redirect examination of Martinez.¹⁰ Our review of the record, however, reveals that defense counsel opened the door to this line of questioning during her cross-examination of Martinez.¹¹ “[A] party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986).

During her cross-examination of Martinez, defense counsel elicited testimony that the defendant had cooperated with police during their investigation and his subsequent arrest. Moreover, defense counsel asked Martinez four times whether he had asked the defendant if he had an alibi, thereby creating the impression that the defendant had failed to disclose any alibi during his arrest solely because he was not asked to do so. Thus, defense counsel sought to explain the defendant's failure to offer an alibi to police during his arrest and implied that his silence was of probative value. The state was therefore permitted to rebut this inference. Several of the United States Courts of Appeals have recognized an exception to Doyle when...