STATE v. TARASCO, 301 Conn. 103 (2011)

22 A.3d 530

(SC 18310)Supreme Court of Connecticut

Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Eveleigh and Vertefeuille, Js.

Syllabus
Convicted of the crime of murder in connection with the shooting death of the victim, the defendant appealed to this court claiming that the trial court, in fashioning his sentence, improperly considered as an aggravating sentencing factor the defendant’s trial testimony during direct examination that he had been engaged in dealing drugs on the night of the murder, which unfairly burdened his constitutional right to testify in his own defense. At the defendant’s sentencing hearing, the trial court stated that it had considered the defendant’s drug dealing since the age of fourteen, in the absence of any personal substance abuse issues, an aggravating factor, that it had reviewed the defendant’s presentence investigation report and, thereafter, sentenced the defendant. On the defendant’s appeal, held that the trial court properly considered the defendant’s drug dealing when fashioning his sentence, and that court’s consideration of his drug dealing did not operate to penalize him for testifying in his own defense; rather than relying on the defendant’s trial testimony, the trial court relied on other independent sources for the fact of the defendant’s drug dealing, including corroboration testimony from two witnesses and the court’s express reference to facts pertinent to the drug dealing that could only have been taken from the presentence investigation report, which the court was required by statute (§ 54-91a) to consider prior to imposing a sentence.

(One justice concurring separately)

Argued February 16, 2011

Officially released May 31, 2011

Procedural History
Substitute information charging the defendant with the crime of murder, brought to the Superior Court in the judicial district of Waterbury, where the defendant filed and subsequently withdrew a motion to dismiss counsel; thereafter, the case was tried to the jury befor Miano, J.; verdict of guilty; subsequently, the court denied the defendant’s motion for a new trial and rendered judgment in accordance with the verdict, from which the defendant appealed to this court Affirmed.

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Pamela S. Nagy, special public defender, for the appellant (defendant).

Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, former state’s attorney, and John J. Davenport, supervisory assistant state’s attorney, for the appellee (state).

Opinion
NORCOTT, J.

The defendant, Peter Tarasco, appeals directly[1] from the judgment of conviction, rendered after a jury trial, of one count of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims only that the trial court, in fashioning his sentence, improperly considered his trial testimony relative to his drug dealing, thus burdening the defendant’s right to testify in his own defense.[2] We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant facts, which the jury reasonably could have found, and procedural history. On the evening of September 5, 2006, the defendant and several other individuals were selling drugs on a street in Waterbury. Later in the evening, a member of the defendant’s party, Joey Figueroa, began arguing with another individual, Brent “Slim” Campbell, who lived across the street. Another group of individuals, including the victim, Jeffrey Macklin, eventually arrived at the scene to support Campbell. The victim quickly began arguing with the defendant’s party, and, shortly thereafter, the defendant shot him, mortally wounding him.

The state charged the defendant with murder in violation of § 53a-54a. During trial, the defendant claimed

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that he had shot the victim in self-defense. In support of that defense, the defendant testified during direct examination that he had been engaged in dealing drugs on the night of the murder. The jury rejected this claim of self-defense and returned a verdict finding the defendant guilty of murder.

During the subsequent sentencing hearing, the trial court stated that it considered the defendant’s drug dealing since the age of fourteen, in the absence of any personal substance abuse issues, to be an aggravating factor.[3] That court also stated that it had reviewed the defendant’s presentence investigation report, and the prosecutor, defense attorney and court frequently referred to that report throughout the sentencing hearing. The trial court subsequently sentenced the defendant to a total effective sentence of fifty years imprisonment.[4] This appeal followed.

On appeal, the defendant claims that, in sentencing him, the trial court improperly considered his testimony relative to his drug dealing and, by doing so, “unfairly

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penalized [the] defendant for taking the stand and testifying in his own defense.” In response, the state contends that: (1) the defendant’s unpreserved claim is not reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989);[5] (2) the trial court’s consideration of the defendant’s drug dealing was proper; and (3) any error was harmless. We agree with the state and conclude that the trial court properly considered the defendant’s drug dealing when fashioning his sentence.

The defendant initially concedes that his claim is unpreserved but seeks to prevail under State v. Golding, supra, 213 Conn. 239-40. Although we conclude that the record is adequate for review, and the defendant’s claim is of constitutional magnitude, to the extent that it is framed as a violation of his sixth amendment right to testify in his own defense; see, e.g., Rock v. Arkansas, 483 U.S. 44, 51, 107 S. Ct. 2704, 97 L. Ed. 2d 381 (1987) (“the right to testify on one’s own behalf at a criminal trial has sources in several provisions of the [c]onstitution”); we also conclude that the claimed constitutional violation did not occur. The defendant’s claim fails, therefore, under the third prong of Golding.

At the outset, we first note the well established principle that a defendant may not be penalized for declining to testify at trial. See, e.g., General Statutes § 54-84 (prohibiting court or prosecutor from commenting negatively on defendant’s silence at trial); State v. Gant, 286 Conn. 499, 539, 944 A.2d 947 (“[i]t is well settled

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that comment by the prosecuting attorney . . . on the defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution” [internal quotation marks omitted]), cert. denied, ___ U.S. ___, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008). As a corollary, a trial court similarly may not punish a defendant for testifying in his own defense. See State v Coleman, 14 Conn. App. 657, 675, 544 A.2d 194 (“[j]ust as the defendant’s constitutional right to silence may not be unduly burdened . . . his constitutional right to testify, which is a corollary of his right to silence, must also be regarded as being free from undue cost” [citation omitted]), cert. denied, 208 Conn. 815, 546 A.2d 283 (1988).

We also note that it is well settled that “[a] sentencing judge has very broad discretion in imposing any sentence within the statutory limits and in exercising that discretion he may and should consider matters that would not be admissible at trial.” (Internal quotation marks omitted.) State v. Eric M., 271 Conn. 641, 649, 858 A.2d 767 (2004). Information considered during sentencing need only have “some minimal indicium of reliability.” (Internal quotation marks omitted.) Id., 650. Moreover, it is axiomatic that the trial court must consider during sentencing the information contained in a presentence investigation report. See General Statutes § 54-91a[6] (requiring trial court to consider presentence investigation report before sentencing); see als State v. Thomas, 296 Conn. 375, 389, 995 A.2d 65 (2010) (“our law makes clear that [presentence investigation] reports are to play a significant role in reaching a fair

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sentence”); State v. Patterson, 236 Conn. 561, 574, 674 A.2d 416 (1996) (“[t]he sole purpose [of a presentence investigation report] is to enable the court, within limits fixed by statute, to impose an appropriate penalty, fitting the offender as well as the crime” [internal quotation marks omitted]). Indeed, “our rules of practice . . . envision that the court will rely on the [presentence investigation] report during the sentencing process.” State v. Peay, 96 Conn. App. 421, 445, 900 A.2d 577, cert. denied, 280 Conn. 909, 908 A.2d 541 (2006); see also Practice Book § 43-10 (1).

Thus, we turn to the factual basis for the defendant’s claim, namely, that the trial court improperly relied on his testimony in considering his drug dealing as an aggravating sentencing factor. In his brief, the defendant posits that there is “no doubt that the [trial] court learned of [the] defendant’s drug dealing through [the] defendant’s testimony and acknowledged that fact at the sentencing.” Although we acknowledge the defendant’s testimony to that effect, we conclude that the question of the trial court’s consideration of that testimony is irrelevant because that court clearly relied on other independent sources for the fact of the defendant’s drug dealing, meaning that it could not possibly have penalized the defendant for testifying at trial. During sentencing, the trial court expressly referenced facts pertinent to the defendant’s drug dealing that could only have been taken from the presentence investigation report, rather than from the defendant’s trial testimony. Specifically, the trial court mentioned the defendant’s “own account” that he had been selling drugs since he was fourteen years old, a fact expressly stated in the presentence investigation report and notably absent from the defendant’s trial testimony. The trial court also stated that the defendant “didn’t apparently have a substance abuse problem,” a conclusion that could not have been reached on the basis of the defendant’s

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trial testimony, but was a topic frequently discussed in the presentence investigation report. Accordingly, we conclude that the defendant’s claim lacks merit, to the extent that it challenges the trial court’s consideration of the defendant’s history of selling drugs and substance abuse, because the trial court properly obtained this information from the presentence investigation report when sentencing the defendant. See, e.g., State v. Thomas, supra, 296 Conn. 389.

Moreover, two other witnesses independently corroborated the fact of the defendant’s drug dealing. Specifically, the defendant’s testimony that he was in Connecticut selling drugs on the night of the murder was corroborated by the testimony of Figueroa and Anthony Martinez, both of whom were with him on the night in question. Thus, the record also contained independent sources of the challenged information. We conclude, therefore, that the trial court’s consideration during sentencing of the defendant’s drug dealing did not operate to penalize him for testifying in his own defense.[7]

The judgment is affirmed.

In this opinion the other justices concurred.

PALMER, J., concurring.

I agree with the majority’s conclusion that the trial court properly considered, for

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sentencing purposes, the fact that the defendant, Peter Tarasco, engaged in drug dealing. I also agree with the majority that, even though the defendant testified at trial concerning his drug dealing activities, details of those activities are set forth in the presentence investigation report, and that report apparently served as a primary source of information concerning the defendant’s drug dealing. I therefore join the majority opinion.

Although the record indicates that the trial court also may have considered the defendant’s own testimony acknowledging his drug trafficking activities, the majority avoids the defendant’s claim that, in so doing, the trial court impermissibly burdened or chilled his constitutional right to testify in his own defense by using that testimony against him at the time of sentencing. I write separately to express my view that the defendant’s constitutional claim lacks merit.[1]

When the defendant elected to testify, he opened himself up to certain questions about his drug dealing activities, and the jury therefore was entitled to consider the defendant’s answers to those questions in its deliberations. “A defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics.” Jenkins v. Anderson, 447 U.S. 231, 238, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980). Consequently, there is no constitutional infirmity in “requir[ing] [a] defendant to weigh such pros and cons in deciding whether to testify.” McGautha v. California, 402 U.S. 183, 215, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971). I see no reason why it is permissible for the jury to consider such testimony for purposes of ascertaining whether the defendant is guilty or not

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guilty but not permissible for the court to consider that same testimony for purposes of sentencing. In other words, to the extent that the trial court relied on certain of the defendant’s trial testimony in determining the appropriate sentence, the court’s reliance on that testimony was no more a burden on the defendant’s right to testify than was the jury’s consideration of that same testimony in determining the defendant’s guilt.

It is well established that “the [c]onstitution does not forbid every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.” (Internal quotation marks omitted.) Jenkins v. Anderson, supra, 447 U.S. 236. Thus, it is settled that a defendant who elects to testify may be subject to enhanced punishment if the trial court believes that he lied on the witness stand; see United States v. Grayson, 438 U.S. 41, 52-55, 98 S. Ct. 2610, 57 L. Ed. 2d 582 (1978); and there is no basis for concluding that a sentencing court cannot also consider a defendant’s truthful but adverse trial testimony. See id., 50 (“a sentencing authority may legitimately consider the evidence heard during trial, as well as the demeanor of the accused”). Indeed, a defendant who takes the stand and admits to illegal conduct is not immunized from prosecution for that conduct. Similarly, if, while testifying on his own behalf, a defendant admits to unlawful or improper conduct, he bears the risk that the trial court will consider that testimony, among many other factors, in determining the correct sentence. See Portuondo v. Agard, 529 U.S. 61, 69, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000) (“[w]hen [a defendant] assumes the role of a witness, the rules that generally apply to other witnesses — rules that serve the truth-seeking function of the trial — are generally applicable to him as well” [internal quotation marks omitted]). To conclude otherwise would be inconsistent with the fact that “the evolutionary history of sentencing . . . demonstrates

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that it is proper — indeed, even necessary for the rational exercise of discretion — to consider the defendant’s whole person and personality, as manifested by his conduct at trial and his testimony under oath, for whatever light those may shed on the sentencing decision.” United States
v. Grayson, supra, 53. It is not surprising, therefore, that the defendant has not cited a single case in which a court has concluded that a defendant’s right to testify was violated because the sentencing judge considered the defendant’s own damaging testimony for sentencing purposes. Consequently, there is no merit to the defendant’s contention that his right to testify was impermissibly burdened on the basis of the trial court’s consideration of his testimony in deciding on the appropriate sentence.

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