State v. Pjura

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               STATE v. PJURA—CONCURRENCE

   DEVLIN, J., concurring in the judgment. I agree with
parts I, and II B and C of the majority opinion, as well
as that portion of part II A discussing the prosecutor’s
questions regarding the defendant’s remorse. I write sep-
arately because I believe that the prosecutor’s default on
his express commitment not to inquire as to the defendant’s
postarrest assertion of his Miranda1 rights amounted to
prosecutorial impropriety. I do not, however, believe that
this impropriety deprived the defendant of his due process
right to a fair trial and therefore agree that the judgment
should be affirmed.
   The relevant factual and procedural history are aptly
stated in the majority opinion. The defendant, John Pjura,
was arrested and charged, inter alia, with assault in the
second degree in violation of General Statutes § 53a-60 (a)
(1) for allegedly punching the unsuspecting victim, Andrew
Howe, in the side of the head, causing catastrophic injuries.
   Prior to trial, defense counsel filed, inter alia, a motion
in limine styled: ‘‘Motion in Limine to Preclude Evidence
of the Defendant’s Postarrest Silence or Invocation of Right
to Counsel.’’ The motion stated that, following the defen-
dant’s arrest, the police reportedly read him his Miranda
rights and, when asked if he understood those rights, the
defendant remained silent. He also remained silent when
asked routine booking questions. The motion further
asserted that, when Detective James Crean, who was
investigating the allegations in the captioned matter,
approached the defendant in the holding area and
explained that he wanted to speak to the defendant about
the incident at Famous Footwear, the defendant stated, ‘‘I
want a lawyer.’’
   On February 28, 2018, the court held a hearing on, inter
alia, the defendant’s pretrial motions. On March 12, 2018,
the trial court issued a comprehensive written ‘‘Ruling Re:
Pretrial Motions’’ that, inter alia, addressed the defendant’s
motion in limine regarding his postarrest silence or invoca-
tion of his right to counsel. The trial court stated: ‘‘The
defendant moved, on February 21, 2018, to preclude the
state from offering as evidence the defendant’s postarrest
silence and/or invocation of his right to counsel. At the
hearing on February 28, 2018, the state indicated that it
had no intention of offering such evidence.
  ‘‘The court concludes that no other action is necessary
regarding this motion.’’ (Emphasis added.)
  At that February 28, 2018 hearing, the prosecutor told
the court that he did not intend to offer evidence of the
defendant’s failure to cooperate with the booking process.
With respect to the testimony of Detective Crean, the fol-
lowing colloquy occurred:
  ‘‘The Court: No statements, simply that he didn’t put his
hands out when asked to?
  ‘‘[The Prosecutor]: Yeah. Did he initially comply with
your request to photograph his hands?
  ‘‘The Court: [Defense counsel]?
   ‘‘[Defense Counsel]: I don’t think that goes to the [issue
pursuant to Doyle v. Ohio, 

426 U.S. 610

, 

96 S. Ct. 2240

, 

49 L. Ed. 2d 91

(1976)].
  ‘‘The Court: All right. So long as there are no statements,
that’s conduct, the conduct would be offered. All right.
  ‘‘[The Prosecutor]: That’s an accurate way of—
  ‘‘[Defense Counsel]: Conduct.
   ‘‘[The Prosecutor]: —summarizing what I intend to
offer, conduct.
  ‘‘[Defense Counsel]: —conduct other than silence.
  ‘‘[The Court]: Understood.’’
   On March 22, 2018, Detective Crean was called to testify
before the jury during the state’s case-in-chief. During the
prosecutor’s direct examination of Detective Crean, the
following exchange occurred:
   ‘‘[The Prosecutor]: And when you came into work that
following Monday did anyone convey any information to
you regarding the Famous Footwear robbery?
  ‘‘[Detective Crean]: That would have been the 19th?
  ‘‘[The Prosecutor]: Yes.
  ‘‘[Detective Crean]: Yeah, on the 19th, yes, I was notified
that [the defendant] was in our lockup. . . .
  ‘‘[The Prosecutor]: What did that mean to you, though?
  ‘‘[Detective Crean]: What they said was, is—
  ‘‘[Defense Counsel]: Objection, Your Honor.
  ‘‘The Court: Sustained.
  ‘‘[The Prosecutor]: Well, did you attempt to speak with—
did you attempt to interview [the defendant]?
  ‘‘[Defense Counsel]: Objection, Your Honor. May we
approach?
  ‘‘The Court: Yes.’’ (Emphasis added.)
    The majority opinion categorizes this question as objec-
tionable but not prosecutorial impropriety because (1)
there was no formal court order that the prosecutor vio-
lated, (2) it may be inferred that, at the sidebar, the trial
court sustained the objection to the question, (3) the ques-
tion was not answered, (4) the trial court instructed the
jury that unanswered questions are not evidence, and (5)
it is unclear what the prosecutor’s intent was in asking the
challenged question. I respectfully disagree.
   Our Supreme Court has stated that, ‘‘[i]n analyzing claims
of prosecutorial impropriety, we engage in a two step pro-
cess. . . . The two steps are separate and distinct: (1)
whether [an impropriety] occurred in the first instance;
and (2) whether that [impropriety] deprived a defendant
of his due process right to a fair trial.’’ (Footnote omitted;
internal quotation marks omitted.) State v. O’Brien-Veader,

318 Conn. 514

, 524, 

122 A.3d 555

(2015). The defendant has
the burden of satisfying both of these analytical steps.

Id. It ‘‘is well

settled that prosecutorial disobedience of a
trial court order, even one the prosecutor considers legally
incorrect, constitutes improper conduct.’’ State v. Ortiz,

280 Conn. 686

, 704, 

911 A.2d 1055

(2006). ‘‘In many cases,
however, this black letter principle is easier stated than
applied. A prosecutor’s advocacy obligations may occasion-
ally drive him or her close to the line drawn by a trial
court order regarding the use of certain evidence.’’ State
v. 

O’Brien-Veader, supra

, 

318 Conn. 533

.
   Our Supreme Court has acknowledged that, ‘‘[e]ven
when it is determined that a prosecutor has breached a
trial court order, it can be difficult to distinguish between
a mere evidentiary misstep and a potential due process
violation. . . . Not every misstep by a prosecutor that
exceeds the bounds of a trial court order rises to the level
of prosecutorial impropriety that implicates a defendant’s
due process rights, thus requiring resort to the second step
in the prosecutorial impropriety analysis.’’

Id., 534.

  ‘‘Whether a prosecutorial question or comment that runs
afoul of a trial court order implicates a defendant’s due
process rights is a case specific determination. This deter-
mination turns on the degree to which the breach under-
mines a trial court’s ruling that protects the integrity of
the fact-finding process by restricting the admission of
unreliable or unduly prejudicial evidence.’’

Id. Applying these principles

to the present case requires
resolution of three questions: (1) Was there a court order?
(2) What interest was the trial court seeking to protect
with its order? And (3) did the prosecutor’s conduct under-
mine the trial court’s ruling to such a degree that it can
fairly be characterized as impropriety as opposed to an
evidentiary misstep?
   It is true that, on the formal motion in limine filed by
the defense seeking to preclude evidence of the defendant’s
postarrest silence or invocation of his right to counsel, the
court concluded that no action was necessary. This, of
course, was predicated on the court’s finding that, ‘‘[a]t the
hearing on February 28, 2018, the state indicated that it
had no intention of offering such evidence.’’ But for this
representation by the prosecutor, it is virtually certain that
the trial court would have granted the motion in limine,
as the defendant’s custodial silence and ‘‘I want a lawyer’’
statement are classic invocations of Miranda rights. It
seems to me wrong that a prosecutor can avoid the conse-
quences of violating a court order by making a promise to
a judge that obviates the need for a formal order—and
subsequently breaking that promise. I would conclude that
the situation with respect to the ruling on the motion in
limine is tantamount to a court order and that the prosecu-
tor’s question should be analyzed in that context.
  Even, however, if one construes the written ruling on
the motion in limine not to be a court order, as the majority
does, there still was an order that was based on the Febru-
ary 28, 2018 colloquy. It is clear that the trial court directed
that the only subject matter that the prosecutor could
permissibly inquire about was the defendant’s postarrest
conduct in refusing to show his hands for photographing,
as evidenced by the following colloquy:
  ‘‘The Court: No statements, simply that he didn’t put his
hands out when he was asked to?
  ‘‘[The Prosecutor]: Yeah. . . .
  ‘‘The Court: All right. So long as there are no statements,
that’s conduct, the conduct would be offered. All right.
  ‘‘[The Prosecutor]: That’s an accurate way of—
  ‘‘[Defense Counsel]: Conduct—
   ‘‘[The Prosecutor]: —summarizing what I intend to
offer, conduct.
  ‘‘[Defense Counsel]: —conduct other than silence.
  ‘‘The Court: Understood.’’
  In my view, one cannot reasonably construe that
exchange as anything other than the court’s crystal clear
ruling that the prosecutor’s inquiry should be limited to
the defendant’s conduct and that he should not inquire
about any statements the defendant may or may not have
made postarrest. It was an order, and the prosecutor was
required to comply with it.
   So, what interest was the trial court trying to protect
with this ruling? On the basis of the portion of Detective
Crean’s police report that was recited in the motion in
limine, the defendant’s only response when asked to be
interviewed was, ‘‘I want a lawyer.’’ The defendant had
been arrested, was in police custody, and given his
Miranda rights—that included his right to counsel. For
almost one-half century it has been the law in our country
that a person who exercises his or her right to silence or
counsel will not be penalized for such exercise. Doyle v.

Ohio, supra

, 

426 U.S. 610

. The trial court’s ruling sought
to prevent the fundamentally unfair deprivation of due
process that arises when one’s assertion of the right to
silence or counsel is used against him.
   The question then becomes: Did the prosecutor’s con-
duct undermine the court’s ruling to a degree that rises to
the level of impropriety? When Detective Crean sought
to speak to the defendant about the incident at Famous
Footwear, the defendant stated that he wanted a lawyer.
In front of the jury, the prosecutor asked: ‘‘Well, did you
attempt to speak with—did you attempt to interview this
[defendant]?’’ (Emphasis added.) The most foreseeable
response to this question would be for the witness to
testify in accordance with his police report, namely, that
the defendant stated that he wanted a lawyer and was
otherwise silent.
   Now, as the majority correctly observes, the question
was not answered and the defendant is not asserting that,
in fact, a Doyle violation occurred. But that was not due
to anything the prosecutor did. The whole purpose of the
motion in limine and the trial court’s direction to counsel
was to avoid the situation that did occur—the jury being
left to wonder: What exactly did the defendant say when
the police tried to interview him?
  It should not be too much to expect prosecutors to keep
their word. When they make an express promise to a trial
judge that is relied on by the court and opposing counsel,
they should abide by it. In the present case, the prosecutor
did not do that. I see that as improper.
   I fully join in the majority’s cogent analysis that this one
improper question did not deprive the defendant of a fair
trial. See footnote 5 of the majority opinion.
      I concur in the judgment.
  1
   Miranda v. Arizona, 

384 U.S. 436

, 478–79, 

86 S. Ct. 1602

, 

16 L. Ed. 2d 694

(1966).
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