State v. Briggs
State v. Briggs
Opinion of the Court
The defendant was convicted after a trial to a jury of kidnapping in the second degree in violation of General Statutes § 53a-94 (a), sexual assault in the first degree in violation of General Statutes § 53a-70 (a), and two counts of
From the evidence the jury could have found the following facts: On the morning of June 8, 1977, the defendant was standing next to a borrowed green ear that was parked with its hood up, apparently disabled, on the grassy area adjoining the entrance ramp to the Merritt Parkway in Trumbull. At approximately 9 a.m. that day, on two separate occasions, the defendant stepped out from in front of the green car and exposed himself to the women drivers of two cars as they were passing the defendant while proceeding down the entrance ramp. Shortly after those two ears had passed, a third woman driver entered the same entrance ramp, also at approximately 9 a.m., noticed the green ear with its hood up and observed the defendant, who was no longer exposing himself, waving to her apparently in an effort to get assistance. She stopped her ear and offered to give him a ride to a gas station. After getting in the car, he grabbed her arm and acted in an obscene manner. The driver said that she was going to stop the car to put him out and he said no. When they got to the exit, the defendant forcibly pulled the woman operator over to the passenger’s seat and took her position behind the wheel, covered her mouth with her hand and told her not to scream. Then he drove several miles, finally parking the automobile near a secluded wooded area. Briggs forcibly pulled the victim out of the car, took her into the wooded area several feet from the automobile and forced her to have sexual intercourse with him. Thereafter he grabbed her purse looking for identification and found her address on her driver’s license. Briggs drove her
The defendant’s first claim of error relates to the testimony adduced by the state on the cross-examination of Christine Briggs, the defendant’s common-law wife, who was the defendant’s principal alibi witness. On direct examination, Christine Briggs testified that on June 8,1977, she, the defendant, and his nephew arrived at the Gary Crooks Center in Bridgeport at approximately 9:05 a.m. in order to obtain food stamps, and afterwards they drove to Stamford, arriving there at 10:15 in the morning. On cross-examination, the state questioned her regarding the purpose in going to Stamford. The witness testified that they had gone to a courthouse in Stamford because the defendant had an appointment there. When asked the reason for the appointment, the witness was allowed to testify, over the defendant’s objection, that the appointment was in connection with a disorderly conduct charge that had been lodged against the defendant.
The defendant now argues on appeal that his common-law wife’s testimony on cross-examination regarding his prior misconduct was inadmissible because it could not have been used to impeach his testimony since he had not yet testified and the evidence could not come within any of the other recognized exceptions to the general rule that evidence of the defendant’s character is inadmissible. See State v. Barlow, 177 Conn. 391, 393, 418 A.2d 46; State v. Zdanis, 173 Conn. 189, 377 A.2d 275; State v. Carr, 172 Conn. 458, 374 A.2d 1107. The tran
No precise or universal test of relevancy is furnished by the law and if evidence adduced on cross-examination conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should be admitted. Delmore v. Polinsky, 132 Conn. 28, 31, 42 A.2d 349; Plumb v. Curtis, 66 Conn. 154, 166, 33 A. 998. Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact that is of consequence to a determination of the matter in issue. People v. Hill, 19 Cal. App. 3d 306, 319, 96 Cal. Rptr. 813. The trial court has broad discretion in deciding the rele
The defendant’s principal contention in this appeal is that the trial court erred in permitting the prosecutor to inquire into the circumstances of the defendant’s silence subsequent to his arrest. See Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91; State v. Cook, 174 Conn. 73, 381 A.2d 563. Questioning as to the defendant’s silence was permitted during the state’s cross-examination of the defendant
It has long been recognized that when an accused is in custody, “our law accords him the right to reply to question or statement, or to remain silent. His silence under such circumstances cannot be laid in evidence against him.” State v. Ferrone, 97 Conn.
In Zeko, we reviewed federal court decisions and adopted the standards enunciated therein for the proper determination of harmless error under circumstances similar to the present case. “Those courts have applied the rule that ‘ [w] hen there is but a single reference at trial to the fact of defendant’s silence, the reference is neither repeated nor linked with defendant’s exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant’s silence constitutes harmless error.’ Chapman v. United States, 547 F.2d 1240, 1250 (5th Cir.), cert. denied, 431 U.S. 908, 97 S. Ct. 1705, 52 L. Ed. 2d 393 (1977); Leake v. Cox, 432 F.2d 982, 984 (4th Cir. 1970). The rule has similarly been applied where a prosecutor does not
When viewed in relation to the trial in its entirety, which involved eleven witnesses over a period of several days, the defendant’s silence was not so “highlighted” by the prosecutor as to constitute prejudicial error. See State v. Zeko, supra. Nor can it be said that the comments “struck at the jugular” of the defendant’s defense. The defendant was identified by three independent witnesses as present on the side of the entrance ramp on the morning in question. The victim had ample opportunity to become familiar with the defendant’s facial features and positively identified him from an array of photographs and once again in court. In attempting to establish his alibi, the defendant offered the testimony of only three witnesses, all having a clear bias in his favor. Furthermore, the record does not indicate, and the defendant does not claim, that the prosecutor made reference to the defendant’s silence in his closing remarks to the jury nor was there any suggestion to the jury that they draw an inference of guilt from the defendant’s silence. See State v. Zeko, supra. This court continues to recognize, as stated in Zeko (p. 558), that the “infusion of ‘harmlessness’ into error must be the exception.” Under the facts of this case, however, we find that the error in allowing testimony regarding the defendant’s post-Miranda warning silence was harmless beyond a reasonable doubt.
Whether in a given case the essential elements of a kidnapping are proven beyond a reasonable doubt is a question for the jury. State v. Lee, supra; State v. Chetcuti, supra. In the present case although the defendant was initially invited into the victim’s car, he thereafter forcibly took control of the automobile and drove several miles, forcibly pulled the victim from the car and into the wooded area, and forced her to have sexual intercourse with him. On these facts, the jury could reasonably have concluded that the victim was restrained and that the restraint was accompanied by the intent required to constitute kidnapping in the second degree.
There is no error.
In this opinion Loiselle, Peters and Healey, Js., concurred.
“Q. Did you ever recall telling the police officer that you had gone to court in Stamford on June 8th?
A. Yes.
Q. You told him that?
A. Yes, I did.
Q. Did you ever tell the police officer on June 15th that you were home from 6:45 to 8:55 in the morning?
Mr. Spear [E. Eugene Spear, defense counsel]: Objection, Your
Honor. Outside the scope, and if there is any so-called statements to police officers, it was never revealed to us under our motion. I ask it be excluded.
[Objection was overruled and exception was taken.]
A. No, I never told them nothing. Not anything.
Q. Did you tell them that you were wearing red pants, red T-shirt and blue jacket, white, red and blue sneakers, at 6:15 on June—
A. I did not tell the police officer nothing.
Q. Did you ever tell them that you went to court with your wife and Kareen?
A. Pardon me?
Q. Did you ever tell them that you went to court with your wife and Kareen — the boy?
A. Well, I started — I almost started a conversation but I cut it.
Q. Did you ever tell the police officer what time you arrived at the court in Stamford?
A. I did not tell the police officer nothing.”
“Q. And after you advised him of his rights, did he give you any information with respect to his whereabouts on June 8th of 1977?
Q. Did he tell you what time he was in court?
A. No, he didn’t.
Q. Did he tell you what judge—
Mr. Spear [E. Eugene Spear, defense counsel]: Objection, Your Honor. That’s not rebuttal. Mr. Briggs said he didn’t tell, his words were, I didn’t tell nothing, except he was in court. That’s not rebuttal evidence.
Mr. Galluzzo [Domenick Galluzzo, for the state]: I want to ask him what time he arrived in court.
The Court: I’ll allow that.
Mr. Spear: The officer said he didn’t tell him.
Mr. Galluzzo: So I’m asking. I didn’t get the answer.
[Objection was overruled and no exception was taken.]
By The Court:
Q. What time did he said he arrived in court?
A. He didn’t tell me.
By Mr. Galluzzo:
Q. Did you ask him?
A. Yes.
[A short time later.]
Q. Is there anything in your report with respect to the conversation you had with her or with Mr. Briggs?
A. Yes, there is.
Q. And may I see that, please?
A. This is the accused, and what he said. Refused to give a statement.”
Kidnapping in the second degree is defined as the restraint of another person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found or (b) using or threatening to use physical force or intimidation. Sections 53a-94 (a) and 53a-91 (2) of the General Statutes. Section 53a-91 (1) of the General Statutes defines “restrain” as “to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent.”
People v. Cassidy, 40 N.Y.2d 763, 390 N.Y.S.2d 45; People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519; see also 43 A.L.R.3d 699 for a discussion of the relationship of kidnapping to other crimes.
Dissenting Opinion
(dissenting). The United States Supreme Court in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), held that the due process clause of the fourteenth amendment forbids
This court applied Doyle in State v. Cook, 174 Conn. 73, 381 A.2d 563 (1977), and ordered a new trial because “[o]n cross-examination, the state’s attorney asked the defendant why he had not furnished the state with his alibi at the time of his arrest or thereafter.” Id., 75. Those same circumstances exist in the present case and the result should be the same.
To comprehend the propriety of the harmless error rule with respect to a violation of constitutional dimensions, reference must be made to Mr. Justice White’s concurrence in United States v. Hale, 422 U.S. 171, 182, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975). Mr. Justice White noted that when a person under arrest is informed of his rights as Miranda requires, “it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. Id., 182-83.
This case presents a situation clearly requiring a finding of reversible error. The alibi defense proffered by the defendant was undeniably assailed by the prosecutor’s repeated, impermissible references to the silence of the defendant. The harmful, cumulative effect of these references by the prosecutor is incalculable.
Surely the state was aware of the defendant’s silence subsequent to his arrest and knew very well what the defendant’s answers on cross-examination would be, as well as the answers of its own witness,
The continued expansion of the harmless error rule will encourage prosecutors to get such evidence in, since they know that if they have a strong case such testimony will not be considered to be reversible error. See People v. Jablonshi, 38 Mich. App. 33, 39, 195 N.W.2d 777 (1972).
I therefore dissent and would order a new trial.
It was the contention of the defense that the defendant was in the company of his wife and was nowhere near the seene of the alleged crimes. This alibi was initially asserted by Christine Briggs and corroborated by the defendant when he testified. The state, however, sought to impeach this testimony as to why subsequent to his arrest he had not provided the police with information of his whereabouts on June 8, 1977. The prosecutor posed eight questions to the defendant, all of which were directed towards what he said after his arrest. The essence of the defendant’s response to all of those questions was that he remained silent, asserting his privilege under the fifth amendment.
Reference
- Full Case Name
- State of Connecticut v. Linwood H. Briggs
- Cited By
- 80 cases
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- Published