STATE OF CONNECTICUT v. JOSEPH THORPE, SC 21004

Judicial District of Hartford

Criminal; Whether Trial Court Properly Allowed Cross-Examination of Defendant Regarding His Pre-Arrest Silence. During the early morning hours of August 3, 2019, the defendant shot and killed Roberto Vargas. The defendant, who was living in Hartford at the time and selling drugs to make money, developed contacts with individuals who were also involved in drug dealing, including Vargas; Vargas' brother, Dariyan Hillson; and Triston Reid. Hartford police seized surveillance videos of the incident that captured the moments leading up to the shooting. On the night in question, Vargas and Hillson were standing together across the street from a restaurant on Farmington Avenue. A few minutes later, Reid and his friend, Taki Blizzard, joined Vargas and Hillson but left to go inside the restaurant. The defendant was seen joining Vargas and Hillson on the street. Reid and Blizzard exited the restaurant to join the group. The defendant and Vargas had a verbal altercation during which the defendant accused the other men of trying to rob him. Vargas started to throw a punch at the defendant, and the defendant pulled his gun and fired at Vargas. He continued to shoot while Vargas and the other men fled. The defendant was then seen jogging away from the scene. He was later identified as the shooter and charged with the murder of Vargas. At trial, the defendant's theory was that he acted in self-defense. He claimed that he approached Vargas because Reid told him that Vargas wanted a large amount of cocaine; that Vargas asked if he had the cocaine after he approached the group and that he responded by asking if Vargas had the money; that the altercation worsened after Reid and Blizzard exited the restaurant to join the group; and that he pulled out his gun and shot at Vargas after Vargas pulled out a gun. Prior to cross-examining the defendant, the state informed the trial court that it wanted to question the defendant about "why he didn't report the fact that he had fired in self-defense" and cited several cases, including State v. Leecan, 198 Conn. 517 (1986), in support of its contention that it could question the defendant on his pre-arrest silence. The defendant objected, contending that such questions were outside the scope of the direct examination. The trial court overruled the objection, and the defendant then sought clarification that the state was requesting to ask the defendant why he did not report self-defense, noting that he "had an absolute right to silence" and "didn't have to report anything." The trial court clarified that the state only was inquiring about his "pre-arrest" silence, and the defendant did not object further. The trial court then ruled that the state could cross-examine the defendant on any pre-arrest failure to report self-defense, finding that the defendant waived his fifth amendment right to silence by taking the stand and therefore could be impeached by admissible evidence. The trial court determined that the failure to report self-defense was presumptively conduct that was inconsistent with a claim of self-defense, noting that it was essentially an admission by silence or circumstances where one would naturally be expected to speak. The trial court stated that it would, however, allow the defendant on redirect to address any circumstances that might explain why a person in the defendant's situation might not report self-defense. During cross-examination, the state elicited the defendant's testimony that he did not stay on the scene to tell any first responders what happened and that the only people he told that he acted in self-defense before his arrest were his parents. After a trial, the jury found the defendant guilty of murder, and he directly appealed to the Supreme Court pursuant to General Statutes § 51-199 (b) (3). On appeal, the defendant claims that the trial court committed plain error in permitting the state to cross-examine him as to his pre-arrest silence because that evidence was introduced without satisfying the evidentiary standard for admissibility, which requires proof of circumstances naturally calling for him to speak.