Judicial District of New Haven


Criminal; Whether References to Defendant's Post-Arrest Silence Constituted Prosecutorial Misconduct; Whether Court, in Sentencing the Defendant as a Persistent Dangerous Felony Offender, Imposed an Unconstitutional Sentence Enhancement in Violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Following the shooting of a police officer on a New Haven street, the defendant, who had been at the scene, was taken into custody and interviewed by police after being given Miranda warnings. He was subsequently charged with a number of offenses, including first degree assault. At his trial, the defendant testified that he was not the shooter. The state presented transcript from a prior federal trial regarding the same shooting wherein the defendant, in response to questions about whether certain state's witnesses were correct in their testimony, testified that what they said was accurate. The state also introduced transcript from that proceeding in which the defendant acknowledged that, in his interview with police, he did not tell them certain details about the incident that led to his arrest. During its cross-examination of the defendant, the state elicited testimony concerning the fact that he omitted these details and, during closing argument, it commented on these omissions. Thereafter, the jury found the defendant guilty of, among other things, assault in the first degree and being a persistent dangerous felony offender, in violation of General Statutes 53a-40 (a) (1) (A) (B) (i). On the assault charge, he was sentenced to a term of forty years, which included the maximum twenty year enhancement for being a persistent dangerous felony offender under General Statutes 53a-40 (h). The defendant now appeals, claiming that the prosecutor committed misconduct by introducing into evidence the transcript from the federal proceeding containing the testimony concerning the veracity of the state's witnesses, by commenting on his post-arrest silence as to certain details of the incident, and, during closing arguments, by asking the jurors to put themselves in the positions of the defendant and a key prosecution witness. He also asserts that the trial court, in making the necessary findings of fact to support the sentence enhancement as opposed to submitting them to the jury, imposed an unconstitutional sentence enhancement in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).