State v. Daugaard

647 A.2d 342, 231 Conn. 195, 1994 Conn. LEXIS 297

• Court: Supreme Court of Connecticut
• Decided: August 23, 1994
• Docket: 14859
• Status: Published

Opinions

Borden, J.

The principal issue in this certified appeal is whether the improper admission by the trial court of testimony detailing the defendant’s invocation of various constitutional rights was harmless beyond a reasonable doubt. The defendant, William Daugaard, was convicted¹ after a jury trial of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l).² He appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment. State v. Daugaard, 32 Conn. App. 483, 630 A.2d 96 (1993). We granted the defendant’s petition for certification.³ We affirm the judgment of the Appellate Court.

The jury could have reasonably found the following facts. At approximately 5 p.m. on May 30, 1990, the defendant, accompanied by a friend, Michael Murray, commenced an evening of bar hopping. The defendant had been drinking earlier in the day, and Murray observed that the defendant appeared close to being drunk by early in the evening, prior to visiting any bars.

From approximately 5 to 6 p.m., the two men went to three bars in the greater New Haven area. They traveled in an unregistered automobile belonging to the defendant’s sister that the defendant had taken without his sister’s permission. Upon leaving the third bar, Murray drove because of the defendant’s intoxicated condition. During this trip, the defendant discovered in the automobile one-half gallon of vodka, which he immediately started to consume.

Murray and the defendant next went to Monahan’s Shamrock Cafe in West Haven. While drinking at Monahan’s, the defendant repeatedly told Murray that he had to “get laid” that evening. Consequently, at approximately 8:30 p.m., the defendant and Murray left the tavern to visit the homes of two female acquaintances of the defendant. Neither visit achieved the defendant’s stated objective: at the first home visited by the two, the defendant’s female acquaintance was leaving as the two men arrived; at the second, the woman was not at home. During the trip to the homes of these two women, the defendant continued to drink vodka straight from the bottle that he had discovered in his sister’s automobile.

At approximately 10 p.m., the two men returned to Murray’s first floor apartment in New Haven. At Murray’s apartment, the defendant continued to drink vodka directly from the bottle. A female friend of Murray’s, Kristen Anderson, telephoned after the two had returned. At the instigation of the defendant, Murray invited Anderson and her roommate to his apartment. Anderson’s roommate did not accept, but Anderson indicated her willingness to join the two men. Murray and the defendant left Murray’s apartment to pick up Anderson at her apartment. All three returned to Murray’s apartment at approximately 11 p.m.

Upon their return to Murray’s apartment, the three encountered the victim, who was sitting on the front steps of the apartment building. The victim, who had previously been Murray’s girlfriend,⁴ was eighteen years old, and lived alone in a second floor apartment in the same building. Both Murray and Anderson were friends of the victim. The victim had never met the defendant. Murray introduced the victim to the defendant, and invited her to join the threesome in his apartment for a drink.

The victim accepted Murray’s invitation. Inside the apartment, for approximately one and one-half hours, the four sat around Murray’s kitchen table drinking and listening to music. During this period the victim consumed two drinks. The defendant continued to consume straight vodka from the bottle he had discovered in his sister’s automobile. When the liquor ran out, the victim stated that she knew of an after-hours club, approximately thirty minutes away, where additional liquor could be purchased. After some discussion, it was decided that the defendant, who had access to an automobile, and the victim, who knew the location of the after-hours club, would go to the club to purchase additional liquor. Murray and Anderson planned to wait for them to return.

Between 12:30 and 1 a.m., the victim and the defendant left Murray’s apartment bound for the after-hours club. Initially, the victim was driving the defendant’s sister’s automobile, because the defendant was intoxicated. After the victim had been driving for approximately five minutes, however, the defendant grabbed the steering wheel and forced the automobile to the side of the road. The defendant told the victim that he wanted to drive because his sister’s automobile was unregistered. The victim then acceded to this demand, and the two switched seats in the automobile. The victim began to give the defendant directions as he drove. After a period of time, the victim noticed that the defendant was ignoring her directions. The defendant stated that he was taking a shortcut to the club.

The defendant subsequently drove onto a highway that the victim did not recognize. She became frightened and demanded that the defendant drive her back to Murray’s apartment. The defendant stated that she “wasn’t going anywhere’ ’ and that he was “taking her to Las Vegas to be a prostitute.” The victim continued to protest. The defendant then struck her in the face, grabbed her neck and forced her head under the dashboard of the automobile. The defendant then warned the victim to keep her head down and not look where they were going.

The victim, who was terrified by this conduct, was crying and begging the defendant to release her. The defendant continually threatened the victim with physical harm. Each time the victim raised her head, the defendant struck her and forced her head back under the dashboard. He also told her that the only way she could get out of the automobile was to jump.⁵ The defendant eventually left the highway, driving to a secluded location on a narrow road lined by tall weeds. The defendant drove the automobile into the weeds to conceal it. The defendant then told the victim that he was “going to fuck her and make her suck his dick and that she would enjoy it, and that she would beg for more.”

The defendant then pulled the victim into the back seat of the automobile, pulled off her pants, and had forcible vaginal intercourse with her. After ejaculating, the defendant climbed off the victim and told her that he was going to kill her and leave her body in the weeds. The defendant then began to search for a place to dispose of the victim’s body.

The victim begged the defendant not to kill her. She promised not to report the sexual assault to the police if the defendant did not kill her. The defendant agreed to release the victim, but threatened to kill both her and Murray if she told of her sexual assault to anyone. The defendant then told the victim “to get the hell out of here before [he] changefd] [his] mind.” The victim made her way to an unfamiliar highway, and began hitchhiking. She was picked up by a man who, at her request, dropped her off on Columbus Avenue in New Haven, three houses from the building in which she lived. She did not get out in front of her building because she was afraid that the defendant might be lying in wait for her there.

Upon entering her building, the victim had no intention of telling anyone about the sexual assault. This intention was a result of her embarrassment and her fear that the defendant would kill her if she informed anyone of what had occurred. The victim went to Murray’s apartment, because she knew that Murray and Anderson would be waiting for her to return, and because she did not wish to be alone. The victim had family in New Haven to whom she could have gone.

When the victim entered Murray’s apartment at approximately 6 a.m., both Murray and Anderson immediately noticed that something had happened to her. The two observed that the victim was crying and shaking, she was having difficulty standing, she appeared to be in pain, she had a bruise on her face, and her clothing, hair and makeup were in disarray. Upon entering the apartment, the victim exclaimed to Murray: “nice fucking friends you got.”

Murray then asked the victim if she had been raped by the defendant. The victim initially refused to tell Murray and Anderson what had occurred. After a thirty minute discussion, Anderson and Murray convinced the victim to tell them what had happened. After the victim told the two of the sexual assault, Murray called a local rape crisis center and the West Haven police department. The victim was taken by the West Haven police to the Yale-New Haven Hospital emergency room.

The victim was examined and treated by the hospital staff, including Carla Williams, a resident physician specializing in gynecology. According to Williams, the findings of her examination of the victim were consistent with sexual assault. On cross-examination, Williams indicated that her findings after examining the victim were not consistent with consensual sexual intercourse.

The victim was interviewed by two detectives from the Wallingford police department, Theodore Milewski and Patricia Miranda. Subsequent to her release from the hospital, Milewski and Miranda drove the victim around in an unsuccessful attempt to locate the scene of the sexual assault. During this drive they observed that the victim remained crouched in a fetal position, and sobbed intermittently.

The defendant was arrested at his sister’s home on May 31, following a complaint by his sister that he had used her automobile without her permission. While he was incarcerated in connection with the unauthorized use of his sister’s automobile,⁶ the defendant was questioned by detectives from the Wallingford police department. Following this interview, the defendant was arrested for and charged with sexually assaulting the victim. Several days following his arrest, the defendant admitted to his sister that he had “fucked up” on the night the victim had been sexually assaulted and that he “remembered hitting [the victim] once” that evening.

Additional facts will be discussed as they pertain to the specific claims of the defendant.

I

The first certified question addresses the timing of the disclosure of a certain police report during the defendant’s trial. The defendant claims that the Appellate Court improperly determined that the timing of the disclosure of the police report to the defendant did not violate his due process rights under the fourteenth amendment. He argues that, because the contents of the police report were not disclosed to him prior to the victim’s return to California where she was living at the time of trial, he was precluded from using the report effectively in cross-examining the victim, in violation of his due process rights. We disagree.

The following facts are relevant to this claim. The victim testified at trial on May 29, June 5 and June 6, 1991, approximately one year after the crime. Upon completion of her direct testimony, the state provided the defendant with a copy of the victim’s formal statement pursuant to General Statutes § 54-86b⁷ and Practice Book § 752.⁸ The defendant then conducted a voir dire of the victim to determine if any additional discoverable materials existed in addition to those that had already been disclosed to the defendant. Following the voir dire, the defendant subpoenaed all the reports that had been prepared by the Wallingford police department in connection with its investigation of this matter. The reports were duly delivered to the trial court on May 30. The trial court ordered that they be sealed and marked as a court’s exhibit.

The defendant moved that the trial court conduct an in-camera review of the sealed reports in order to determine if the defendant was entitled to any of them pursuant to an earlier discovery order of the court. The court denied this motion. The defendant then conducted an extensive cross-examination of the victim, covering portions of three days, and consuming 133 pages of the transcript. Following the completion of her testimony, the victim returned to her home in California.

In her trial testimony, and in her formal statement to the police, the victim consistently stated that the sexual assault had occurred along a secluded road lined with tall swamplike weeds, and that an unfamiliar highway, upon which the victim and the defendant had driven, had been visible in the distance.

Following the victim’s testimony, the state called Detective Miranda to testify. Miranda and Detective Milewski had accompanied the victim in an effort to find the location of the sexual assault. At the completion of Miranda’s testimony, the state provided the defendant with two narrative reports that Miranda had prepared.⁹ One of these reports stated, inter alia, that while Miranda, Milewski and the victim had been looking for the site of the sexual assault, the victim had mentioned that she believed the site was “in a rest area off the highway, which had a tourist information center [in it].” (Emphasis added.) On cross-examination, Miranda testified that this report had been in error, and that the victim actually had said that the sexual assault had taken place “near” a rest stop area, not “in” a rest stop area as she had noted in her report. In a second narrative report that Miranda had prepared, she noted that the victim had stated that the defendant had driven through a rest area on a highway prior to the sexual assault.

“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Milner, 206 Conn. 512, 539-40, 539 A.2d 80 (1988). The parameters oí Brady were delineated by the United States Supreme Court in Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 33 L. Ed. 2d 706, reh. denied, 409 U.S. 897, 93 S. Ct. 87, 34 L. Ed. 2d 155 (1972). “The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.” Id.; State v. Shannon, 212 Conn. 387, 406, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989); Demers v. State, 209 Conn. 143, 150, 547 A.2d 28 (1988). To prevail on a Brady claim, the defendant must establish all three elements of this test. State v. Green, 194 Conn. 258, 263, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985); State v. Doolittle, 189 Conn. 183, 197, 455 A.2d 843 (1983). The prosecutor does not violate his constitutional duty of disclosure “ ‘unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ ” State v. Green, supra, 263-64. Suppressed evidence is material if it “ ‘creates a reasonable doubt [of guilt] that did not otherwise exist . . . .’ ” Id., 264, quoting United States v. Agurs, 427 U.S. 97, 112, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United States v. Agurs, supra, 109-10; see State v. Doolittle, supra, 197.

In circumstances in which evidence is disclosed to the defendant at trial, the defendant must establish that he was prejudiced by the state’s failure to make the information available to him at an earlier time. State v. Reddick, 197 Conn. 115, 121-22, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). “The appropriate standard to be applied in a case such as this is whether the disclosure came so late as to prevent the defendant from receiving a fair trial.” (Internal quotation marks omitted.) Id. “[T]he omission [of disclosure] must be evaluated in the context of the entire record.... [I]f there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial . . . . ” (Internal quotation marks omitted.) State v. Green, supra, 194 Conn. 264; State v. Packard, 184 Conn. 258, 279, 439 A.2d 983 (1981).

In determining whether the defendant was prejudiced by late disclosure, this court focuses on the effect of the late disclosure on the jury’s verdict. See State v. Pollitt, 199 Conn. 399, 414, 508 A.2d 1 (1986). “The focus is not on the fact of nondisclosure, but the impact of the nondisclosure on the jury’s verdict.” Id.; United States v. Kubiak, 704 F.2d 1545, 1550 (11th Cir. 1982), cert. denied, 464 U.S. 852, 104 S. Ct. 163, 78 L. Ed. 2d 149 (1983). “The effect then of disclosable evidence should be viewed in terms of its likely effect upon those on whom the outcome rests—the jury.” State v. Pollitt, supra, 414.

The defendant claims that the timing of the disclosure of Miranda’s report, following the victim’s testimony, violated his due process rights, because it prevented him from cross-examining the victim on the inconsistency between her direct testimony and the statement she purportedly made to Miranda that was memorialized in the report.¹⁰ He argues that the timing of the disclosure, subsequent to the victim’s testimony, prevented him from attacking her credibility by confronting her with an inconsistent statement, namely, that the assault took place, not in an area of tall weeds as she had testified, but in a rest stop area.

The report was not material to the defendant within the meaning oí Brady. The level of materiality required to establish a Brady violation is that the omitted evidence, considered in the context of the entire trial, “creates a reasonable doubt [as to guilt] that did not otherwise exist. . . .” United States v. Agurs, supra, 427 U.S. 112; State v. Green, supra, 194 Conn. 265. Although the defendant claims that the report could have been used for impeachment purposes, any such use was likely to have been extremely limited. The report does not directly contradict the victim’s testimony or her formal statement to the police. Miranda explained the inconsistency between the victim’s testimony and one of her two reports as resulting from her own error in recordation. Such evidence is not of the type that would cause a jury to question, in any significant way, the credibility of the victim.

Furthermore, the victim’s testimony that the defendant had sexually assaulted her was supported by corroborating testimony and physical evidence consistent with a determination of sexual assault. As was noted above, the victim’s testimony and the statement in the report were not directly contradictory. The specific location of the assault, as opposed to whether it in fact took place, was not at issue in the trial. Furthermore, the defendant’s cross-examination of the victim, aimed at undermining her credibility, was extensive and unbridled. Finally, all of the evidence offered by the defendant in defense was aimed at the victim’s credibility.

Although the material contained in the report could arguably have furnished additional grist for the defendant’s cross-examination mill, upon examination of the entire record, we conclude that the report, had it been furnished to the defendant earlier, would not have created a reasonable doubt concerning his guilt. The Appellate Court concluded that there was not a reasonable probability that had the report been disclosed to the defendant prior to the victim’s return to California, the result of the trial would have been different. State v. Daugaard, supra, 32 Conn. App. 495. The defendant provides us with no persuasive reason to disturb that conclusion, and we decline to do so.

II

The second certified question addresses whether the improper admission by the trial court of testimony regarding the defendant’s invocation of certain constitutional rights was harmless beyond a reasonable doubt. The defendant claims that the Appellate Court improperly determined that the admission at trial of testimony by Wallingford police department detectives Milewski and Patrick Shanley that the defendant had refused to consent to a warrantless body search, had refused to waive any rights, and had desired to speak with an attorney, was harmless error. We disagree.

The following facts are relevant to this claim. As was noted previously, following a complaint by the defendant’s sister that the defendant had used her automobile without her permission in violation of General Statutes § 53a-119b, the West Haven police arrested the defendant on the morning following the sexual assault of the victim. The West Haven police were aware at the time that the defendant was a suspect in the sexual assault of the victim that had occurred the previous evening. The West Haven police thereafter informed the Wallingford police that the defendant was in their custody. At approximately 6:30 p.m., Milewski and Shanley arrived at the West Haven police department to interview the defendant. The detectives introduced themselves and told the defendant that he was a suspect in a sexual assault that they were investigating. The defendant was then taken out of his cell to be interviewed.

After being taken from his cell, the defendant asked the detectives to tell him again where they were from. Immediately after the detectives again told the defendant that they were from Wallingford, the defendant exclaimed “it didn’t happen, man.”

Following this exclamation, Milewski immediately cautioned the defendant and read him his Miranda11 rights. The detectives then asked the defendant if he understood his rights. The defendant told the detectives that he understood his rights, and nodded his head affirmatively. The defendant was then asked if he wished to waive his rights. He responded that he would not give up any rights.

The defendant then reinitiated the conversation with the detectives by asking Shanley when the sexual assault had occurred. Shanley responded, and the defendant stated “it couldn’t have happened that way,” explaining that he was in Monahan’s bar from 7 p.m. until closing, with the bartender, Joe Denehy and a man named Mark. The defendant also stated that “when I left [Monahan’s] I was too drunk to remember what I did later.”

The detectives then asked the defendant to consent to a physical search in order to provide them with hair and saliva samples. The defendant refused this request. Shanley then asked the defendant if he knew a girl with the victim’s name. The defendant responded “no,” and then asserted his right to speak to a lawyer. Upon this assertion the detectives immediately terminated the interview. Subsequently, the defendant was arrested in connection with the sexual assault.

At trial, both Milewski and Shanley testified, over the defendant’s objection, regarding their interview with the defendant. In relating their conversation with the defendant, both detectives testified that the defendant: (1) had indicated he would not waive any rights; (2) had refused to consent to a body search; and (3) had requested to speak to a lawyer, prompting termination of the interview. The defendant did not testify at trial.

Pursuant to the certified question, we assume that the admission of the detectives’ testimony that the defendant would not waive his right to remain silent, requested a lawyer, and would not consent to a body search, was improper.¹² Ordinarily, evidence of a defendant’s postarrest and post-Miranda silence is constitutionally impermissible under the due process clause of the fourteenth amendment. Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).¹³ A Doyle violation also encompasses a prosecutor’s comment upon a defendant’s statement requesting an attorney. State v. Hull, 210 Conn. 481, 489, 556 A.2d 154 (1989). “With respect to post-Miranda warning . . . silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted.” (Internal quotation marks omitted.) Wainwright v. Greenfield, 474 U.S. 284, 295 n.13, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986); State v. Green, supra, 194 Conn. 269.

Doyle violations are, however, subject to harmless error analysis. South Dakota v. Neville, 459 U.S. 533, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983); State v. Canty, 223 Conn. 703, 613 A.2d 1287 (1992); State v. Hull, supra, 210 Conn. 492. The harmless error doctrine is rooted in the fundamental purpose of the criminal justice system, namely, to convict the guilty and acquit the innocent. Bunkley v. Commissioner of Correction, 222 Conn. 444, 460, 610 A.2d 598 (1992). Therefore, whether an error is harmful depends on its impact on the trier of fact and the result of the case. State v. Jones, 215 Conn. 173, 185, 575 A.2d 216 (1990).

“[Bjefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); State v. Pittman, 209 Conn. 596, 608-609, 553 A.2d 155 (1989); State v. Plourde, 208 Conn. 455, 469, 545 A.2d 1071 (1988); State v. Green, 207 Conn. 1, 9, 540 A.2d 659 (1988). The state bears the burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt. State v. Colton, 227 Conn. 231, 253-54, 630 A.2d 577 (1993). That determination must be made in light of the entire record. See State v. Francis, 228 Conn. 118, 125, 635 A.2d 762 (1993).

“A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant’s silence following a Miranda warning. Under such circumstances, the state’s use of a defendant’s postarrest silence does not constitute reversible error.” State v. Silano, 204 Conn. 769, 781, 529 A.2d 1283 (1987); State v. Canty, supra, 223 Conn. 711; State v. Hull, supra, 210 Conn. 492; see also Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). “The [error] has similarly been [found to be harmless] where a prosecutor does not focus upon or highlight the defendant’s silence in his cross-examination and closing remarks and where the prosecutor’s comments do not strike at the jugular of the defendant’s story.” (Internal quotation marks omitted.) State v. Silano, supra, 781; United States v. Davis, 546 F.2d 583, 594 (5th Cir.), cert. denied, 431 U.S. 906, 97 S. Ct. 1701, 52 L. Ed. 2d 391 (1977); State v. Hull, supra, 492; State v. Pellegrino, 194 Conn. 279, 292, 480 A.2d 537 (1984); State v. Zeko, 177 Conn. 545, 555, 418 A.2d 917 (1979). “ ‘The cases wherein the error has been found to be prejudicial disclose repetitive references to the defendant’s silence, reemphasis of the fact on closing argument, and extensive, strongly-worded argument suggesting a connection between the defendant’s silence and his guilt.’ ” State v. Canty, supra, 714; State v. Zeko, supra, 557.

Our review of the record convinces us that the admission of the detectives’ testimony concerning the defendant’s invocation of his rights was harmless beyond a reasonable doubt. The evidence was introduced in the context of the investigative efforts made by the police in connection with the sexual assault. The reference to the defendant’s invocation of his constitutional rights was marginal in the context of the entire trial. The challenged testimony was a minor portion of the testimony of two witnesses occurring in the context of a fourteen day trial. The prosecutor, moreover, in closing argument, made no comment concerning the defendant’s invocation of his rights and did not otherwise highlight the evidence to the jury.

Furthermore, other evidence introduced by the state persuasively established the guilt of the defendant beyond a reasonable doubt. That evidence included the victim’s testimony, in which she consistently maintained, in the face of extensive cross-examination, that she had been sexually assaulted by the defendant. This testimony was corroborated by significant independent evidence. The corroboration included constancy of accusation testimony from Murray, Anderson, three police officers, a hospital social worker, and Williams, the victim’s treating physician. The victim’s testimony that she and the defendant had traveled together in the defendant’s sister’s automobile was corroborated by testimony from Murray and Anderson. The description of the automobile provided by the victim to the police corresponded with that of the automobile discovered by the police. The victim’s testimony that the defendant had a certain distinctive tattoo on his chest was corroborated by photographs of the defendant.

Additionally, the emotional trauma the victim displayed in the hours and days following the assault was corroborated by testimony from Anderson, Williams and three police officers. Specifically, Anderson testified that the victim had been distraught after she had returned from the journey with the defendant. Anderson testified further that, for days thereafter, during which time she stayed with the victim in Murray’s apartment, the victim had been regularly crying, screaming in her sleep, and had recoiled from the touch of others. Further, Miranda and Milewski testified that the defendant had appeared to be in pain when she was transported to Yale-New Haven Hospital following the attack. These officers also testified that, when they had driven the victim around in the days following the attack, in an effort to locate the site of the attack, she had been sobbing. Milewski testified further that the victim was in a “hunched-over position with her hands in front of her” while they drove around looking for the site.

The physical condition of the victim immediately following the assault was corroborated by the testimony of Murray, Anderson, Milewski and Miranda. Moreover, Williams testified that the victim had fainted at Yale-New Haven Hospital following the attack. Williams also testified that the physical condition of the victim had been consistent with sexual assault and that the victim exhibited bruises that, in her opinion, had been recently inflicted. Williams testified that nonmotile sperm had been discovered in the victim’s vagina and that such nonmotile sperm could be present in the vagina for approximately twenty-seven hours after intercourse before disintegrating.

In addition, the state introduced evidence that: (1) there was a seminal stain found in the crotch area of the victim’s underpants that did not display evidence of the blood type of the source of the semen; (2) non-secreting individuals will not display their blood type in bodily fluids other than blood; and (3) the defendant is a nonsecretor, and therefore could have been the source of the seminal stain.¹⁴ Although Williams’ testimony that the victim’s condition was consistent with a sexual assault was challenged by Thomas Hanson, an expert for the defense, Hanson admitted on cross-examination that (1) he had never examined the victim and that his opinion was based on photographs taken of her, and (2) although the victim did not display any vaginal trauma, one half of the victims of sexual assault whom he had personally examined display no such trauma.

There was also other significant evidence of the defendant’s culpability. That evidence included the defendant’s admission to his sister, while they were discussing the sexual assault on the victim, that he had “fucked up” on the night of the assault, and that he had hit the victim. There was testimony by Murray that the defendant had repeatedly expressed his desire “to get laid” on the evening of the attack. Specifically, Murray testified that the defendant had referred to having sexual intercourse every time the subject of women came up or when Murray spoke to a woman during the night of the attack. Murray also testified to the fact that he and the defendant had made repeated efforts to find women on the night of the attack.

There was also significant evidence of consciousness of guilt arising from the defendant’s false statements to the police. The defendant had stated to the police that he did not know the victim. The defendant’s sister testified, however, that the defendant had indicated to her that he knew the victim, and had identified her by name. The fact that the defendant did know the victim was also established by the testimony of Murray and Anderson, by the photographic corroboration of the victim’s testimony regarding the defendant’s tattoo, and by the photographic corroboration of the victim’s testimony describing the defendant’s sister’s automobile. Furthermore, the testimony of Murray and Anderson contradicted the defendant’s statement to the police that he had spent the bulk of the evening at Monahan’s bar, and the defendant introduced no evidence to support that purportedly exculpatory statement.

The defendant presented no evidence supporting any specific defense, other than the general defense implicit in putting the state to its burden to establish guilt beyond a reasonable doubt.¹⁵ His entire trial strategy, as is made clear by the transcript of the evidence and of his closing argument, was to cast doubt on the credibility of the victim. In his closing argument, the defendant’s attorney attempted to persuade the jury that it should reject the victim’s credibility on the hypothesis that, after coming home to Murray in the early morning, she accused the defendant in order to divert the wrath of Murray, her boyfriend. There were, however, difficulties with this argument.

This was certainly an argument that the defense attorney was entitled to make in order to attempt to raise a reasonable doubt about the defendant’s guilt, because there was evidence that Murray had previously hit the victim on several occasions. There was, however, little or no evidence to support the defendant’s theory of defense that the victim had fabricated a story of a sexual assault by the defendant because she feared further violence at Murray’s hands for having returned so late. This theory might have had some plausibility had the defense been that the victim and the defendant had engaged in consensual intercourse. It was, however, wholly conjectural, as the state responded in rebuttal, in light of the defendant’s statement to the police that he did not even know the victim and had spent the entire evening at Monahan’s bar. Moreover, all of the evidence considered by the jury was to the contrary. Additionally, the jury knew that the victim had returned to Connecticut from California, where she had moved after the attack, in order to testify against the defendant. The jury could have reasonably inferred that, had the victim made up her charges solely to appease Murray, she would have been unwilling to return to Connecticut from California, long after the alleged fabrication, in order to perpetuate it.

“Due process seeks to assure a defendant a fair trial, not a perfect one.” State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982); State v. Canty, supra, 223 Conn. 722. Here, the Appellate Court concluded that the Doyle violation was so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the admission of the detectives’ testimony. Given the significant amount of evidence of the defendant’s guilt, coupled with the relatively innocuous nature of the Doyle violation, we agree with the Appellate Court’s conclusion.

The judgment of the Appellate Court is affirmed.

In this opinion Peters, C. J., and Callahan and Norcott, Js., concurred.

1 The defendant was acquitted of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), and its lesser included offenses of kidnapping in the second degree in violation of General Statutes § 53a-94, and unlawful restraint in the second degree in violation of General Statutes § 53a-96.

2 General Statutes § 53a-70 provides in relevant part: “sexual assault IN THE FIRST DEGREE: CLASS B FELONY . . . . (a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

3 Specifically, we certified the following questions for review: (1) “Whether the Appellate Court was correct in concluding that the timing of the disclosure of the police report during the trial did not violate the defendant’s due process rights?”; and (2) “Whether the Appellate Court was correct in determining that the erroneous admission by the trial court of testimony detailing the defendant’s invocation of various constitutional rights was harmless beyond a reasonable doubt?” State v. Daugaard, 228 Conn. 905, 906, 634 A.2d 298 (1994).

4 There was conflicting testimony at trial as to the then current state of the relationship between the victim and Murray. At trial, the victim testified repeatedly that she was Murray’s former girlfriend on the night in question, having previously terminated their romantic involvement and moved to her own apartment some time between one week and one month prior to the sexual assault. According to the victim, however, the two had remained friends following her move, and she and Murray had had sexual intercourse approximately three days before the night in question. Murray testified that the two were boyfriend and girlfriend at the time of the sexual assault. The victim told one police officer on the night of the incident that Murray was her boyfriend.

5 The victim did, at one point, open the car door in an attempt to escape from the automobile. She abandoned this effort because the defendant was driving the automobile at speeds in excess of sixty miles per hour.

6 The defendant was arrested by officers from the West Haven police department in connection with the improper use of his sister’s automobile. Because there was some evidence that the sexual assault had occurred in the vicinity of Wallingford, the investigation of the sexual assault was conducted by the Wallingford police department, and the defendant was interviewed at the West Haven police station by officers from the Wallingford police department.

7 General Statutes § 54-86b provides: “right of accused to examine statements, (a) In any criminal prosecution, after a witness called by the prosecution has testified on direct examination, the court shall on motion of the defendant order the prosecution to produce any statement oral or written of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified, and the court shall order said statement to be delivered directly to the defendant for his examination and use.

“(b) If the prosecution fails to comply with the order of the court, the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.”

8 Practice Book § 752 provides: “--production following testimony

“After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

9 Miranda’s reports had been delivered previously to the trial court pursuant to the previously discussed subpoena and had been sealed by the trial court.

10 The record indicates that the defendant returned to her home in California immediately after her testimony, and that a motion by the defendant to compel the state to produce the victim and to reopen her cross-examination was denied. The Appellate Court specifically addressed that denial; State v. Daugaard, supra, 32 Conn. App. 490; and it is not a subject of this appeal.

11 The warnings mandated by Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), are that, once the police take a person into custody, before commencing interrogation they must advise him that he has the right to remain silent and that anything he says can be used against him. He must also “be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation . . . .” Id., 471; State v. Hull, 210 Conn. 481, 489, 556 A.2d 154 (1989).

12 The state does not present, and we do not consider, as an alternate ground for affirmance, whether the admission of the detectives’ testimony was constitutionally permissible as, for example, demonstrative of “the investigative effort made by the police and the sequence of events as they unfolded . . . .” (Internal quotation marks omitted.) State v. Casey, 201 Conn. 174, 183, 513 A.2d 1183 (1986); State v. Moye, 177 Conn. 487, 496, 418 A.2d 870, vacated, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed. 2d 129, on remand, 179 Conn. 761, 409 A.2d 149 (1979); or when a police officer briefly describes what has occurred when the defendant has been interviewed at the police station. State v. Casey, supra, 183; State v. Moye, supra, 496.

13 Evidence that the defendant refused to consent to a body search is not analytically the same as the invocation of the right to silence following Miranda warnings. Whether the state can perform a body search implicates the fourth amendment’s protection against unreasonable searches and seizures, whereas the right to remain silent following Miranda warnings derives from the fifth amendment. The two analyses may differ because the refusal of a request to consent to a body search, unlike the invocation of the fifth amendment right to silence following Miranda warnings, is not ordinarily preceded by an implicit promise to the defendant by the police that no adverse consequences will flow from the defendant’s assertion of his constitutional rights. Because the form of the certified question assumed equivalence between these two situations, however; see footnote 3; and because we conclude that the outcome of the case would not differ based upon that assumption, we need not decide whether the consequences flowing from evidence of a refusal to submit to a body search would be the same as the consequences flowing from evidence of the invocation of the right to silence.

14 Daniel Tramontozzi, an expert working in the Connecticut state police forensic science laboratory, who examined the seminal stain, testified that approximately 20 percent of secreting individuals will not display evidence of blood type in particular samples of bodily fluids. The seminal stain in question, therefore, could have been produced by a secreting individual. Additionally, the stain could have been produced by a nonsecreting individual, such as the defendant, because a nonsecretor will never produce evidence of blood type in a seminal sample. This physical evidence, therefore, was consistent with, although not conclusive of, a finding that the defendant had sexually assaulted the victim.

15 The dissent insists that “at trial the defendant never attempted to controvert, through cross-examination of witnesses, presentation of evidence or in summation, the fact that the defendant had driven with the complainant in the vehicle.” We read the record differently. The defendant’s cross-examination of the victim, which was aimed at attacking her credibility, did not distinguish between her credibility regarding whether they were in the automobile together and whether the sexual assault had occurred. Moreover, at no time, either during cross-examination or final argument, did the defendant suggest to the jury that the victim was telling the truth about having left with the defendant for the club, but had lied about the sexual assault. Indeed, when discussing, in final argument, the victim’s testimony regarding the trip to the club, the defendant positively referred to the fact that “she,” not they, left the apartment, and that “she,” not they, “would be back in about ten minutes.” In sum, the principal thrust of the defendant’s final argument, as indicative of Ms theory of defense, was, not that the defendant and the victim had been out together for five hours, but that the entire incident simply had not occurred, and that “[wjhat we have is a story that was made up because [the victim] was coming home late and didn’t want to be beaten [by Murray].” Therefore, the corroboration of the victim’s testimony regarding the fact that (1) she, Murray, Anderson and the defendant had been drinking together, and (2) she and the defendant had been in the automobile together, is significant, because it independently supports her testimony and underscores the falsity of the defendant’s exculpatory statements to the police when he was arrested.