State v. Griffin

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State v. Griffin

STATE OF CONNECTICUT v. PATRICK A. GRIFFIN
(AC 46982)
Moll, Westbrook and Prescott, Js.

Syllabus

Convicted, following a jury trial, of manslaughter in the first degree in
connection with the stabbing death of the victim, the defendant appealed.
On appeal, the defendant claimed, inter alia, that the trial court improperly
instructed the jury on self-defense. Held:

The trial court properly instructed the jury that self-defense did not encom-
pass a preemptive strike, as this court concluded that the trial court’s instruc-
tions, when read as a whole, did not mislead the jury because the evidence
adduced at trial raised a question of imminence and whether the defendant
acted improperly by preemptively stabbing the victim in the absence of a
reasonable belief that the victim posed an imminent threat of physical harm
to the defendant, and the preemptive strike instruction was consistent with
Connecticut law on self-defense.

The prosecutor’s comments during rebuttal closing argument did not improp-
erly infringe on the defendant’s constitutional right to remain silent following
warnings issued pursuant to Miranda v. Arizona (384 U.S. 436) because
the comments would have naturally and necessarily been taken by the jury
as commentary on the discrepancies between the defendant’s statements
on the night of the incident, which failed to include key facts relating to
the defendant’s claim of self-defense, and the defendant’s trial testimony.
Argued February 14—officially released June 3, 2025

Procedural History

Substitute information charging the defendant with
two counts of the crime of manslaughter in the first
degree, brought to the Superior Court in the judicial
district of Danbury and tried to the jury before Pavia,
J.; verdict of guilty; thereafter, the court, Pavia, J.,
vacated the defendant’s conviction of one count of man-
slaughter in the first degree and rendered judgment of
guilty of manslaughter in the first degree, from which
the defendant appealed to this court. Affirmed.
John L. Cordani, Jr., assigned counsel, with whom,
on the brief, was Scott T. Garosshen, assigned counsel,
for the appellant (defendant).
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State v. Griffin

Rocco A. Chiarenza, senior assistant state’s attorney,
with whom, on the brief, were David Applegate, state’s
attorney, and Russell Zentner, senior assistant state’s
attorney, for the appellee (state).
Opinion

PRESCOTT, J. The defendant, Patrick A. Griffin,
appeals from the judgment of conviction, rendered after
a jury trial, of manslaughter in the first degree in viola-
tion of General Statutes § 53a-55 (a) (1).1 On appeal,
the defendant claims that (1) the trial court improperly
instructed the jury that ‘‘self-defense does not encom-
pass a preemptive strike’’ and (2) the state improperly
infringed upon his constitutional right to remain silent
when, in violation of Doyle v. Ohio, 426 U.S. 610, 619,
96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), it impermissibly
commented on his post-Miranda2 silence during rebut-
tal closing argument. We affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. On May 7, 2022, James Knapp, a retired school-
teacher, attended a stag party for one of his former
students. Afterward, he met his longtime friend, the
defendant, at a bar to watch the Kentucky Derby. The
defendant consumed nine beers and one or two shots
before leaving the bar at approximately 8:39 p.m. A few
moments later, Knapp followed him out.
At approximately 8:47 p.m., the defendant, accompa-
nied by Knapp, returned home in a highly inebriated
state. Surveillance video from a camera on the defen-
dant’s house captured images and audio from the defen-
dant’s front yard and showed the defendant walking
1
The defendant was also convicted of manslaughter in the first degree
in violation of § 53a-55 (a) (3). For purposes of sentencing, the court vacated
his conviction under § 53a-55 (a) (3).
2
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
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State v. Griffin

with an unsteady gait from his vehicle up the front
walkway. The defendant, while speaking on his cell
phone with his wife, Pamela Drucker, shouted in slurred
speech ‘‘Pam’’ and ‘‘fucking asshole,’’ while forcefully
tapping his cell phone as Knapp calmly said, ‘‘Hi, Pam.’’
The defendant and Knapp entered the home.
At approximately 8:53 p.m., Knapp returned to his
vehicle, closed the door, and walked through the gate
and up the walkway to the front door. When Knapp
reached the steps leading to the front door, he said to
the defendant, who was laying down on the stoop, ‘‘get
up, what are you doing?’’ The defendant continued to
lie on the stoop groaning, and Knapp said, ‘‘you’re
drunk, can ya stand up?’’
Shortly thereafter, Knapp said, ‘‘come on, I ain’t
gonna leave you out here. . . . It’s too fucking cold.’’
The defendant mumbled that he was ‘‘fucked up.’’
Knapp stated to the defendant that the defendant would
‘‘pass out,’’ that he did not ‘‘wanna carry’’ him into the
house, and that, ‘‘you don’t want me to drag you in.’’ The
defendant replied, ‘‘no, I’m up.’’ Knapp then explained
to the defendant, ‘‘that’s home, c’mon, that’s warmth,
c’mon.’’
A few minutes later, the defendant went back into
the house. Knapp then took the defendant’s dog outside
so that the dog could relieve himself. Knapp said to the
dog ‘‘good boy,’’ and then said, ‘‘go, get him.’’ Knapp
and the dog thereafter went back inside the house.
Inside the house, the defendant, who was angry with
Knapp for trying to drag him into the house, stabbed
Knapp with a knife that he had hidden under a chair
cushion.
At approximately 9:26 p.m., the defendant called 911
and stated that ‘‘there’s a dead man in my kitchen’’ and
that ‘‘my buddy was gonna kill me in the house but I
switched it up and I stabbed him and I killed him . . .
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because that’s the way it went down.’’ The defendant
further told the dispatcher that, at the bar, ‘‘they’’ put
something in his drink. The dispatcher told the defen-
dant to wait outside for the police.
When the police arrived on the scene, the defendant
was sitting on the front steps to his house while clad
in boxer shorts and a T-shirt. He had defecated himself.
The defendant immediately stated that his friend was
dead because he had stabbed him and that his friend
was in the kitchen.
The defendant stated to the police that Knapp was
‘‘[d]ragging me in. I’m shitting. And then I knew some-
thing was up. [Knapp] said, ‘ah, fuck that. I don’t give
a shit if you’re shitting in your pants.’ ’’ The defendant
further stated, ‘‘when I get in there it’s like [Knapp’s]
like ‘ah, fuck you. Shut up.’ And then I knew something
was up. And then, when I started to get up and race
in, he didn’t know I had a knife underneath the fucking
chair, and I grabbed it and fucking stabbed the fucker
with it. And that’s the way it went down, brother.’’
Trooper Nicanor Cardenas remained outside with the
defendant and advised him of his Miranda rights, and
the defendant responded that he understood those
rights. Thereafter, the defendant stated repeatedly that
Knapp dragged him up the walkway and into the house
in order to kill him and that he grabbed a knife that he
had hidden and stabbed Knapp with it. At some point,
the defendant started screaming while mentioning the
latex gloves that the police officers were wearing, and
he yelled that someone needed to call 911.
The defendant was transported to Danbury Hospital,
and, while there, he explained his version of events
to Detective Jared Barbero. The defendant stated that
Knapp was stomping on him and that he grabbed a
knife because he had no other choice because Knapp’s
foot was placed on his throat.
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State v. Griffin

Tammy Weiner, an emergency department physician
at Danbury Hospital, treated the defendant. The defen-
dant stated to Weiner that he had stabbed and killed
his friend. The defendant reported pain in his hands,
which were handcuffed behind his back, stating that
he had broken one of his hands years ago. When the
handcuffs were removed, the defendant stated that the
pain was alleviated. The defendant’s extremities had
no evidence of swelling, there were shallow abrasions
on his buttocks, and no abnormalities were noted on
his neck.
At trial, the defendant testified to the following ver-
sion of events: ‘‘Well, I fell. [Knapp] helped take my
pants off, then he got shit on his hands, and then he
snapped ’cause he got shit on his hands. He snapped
and he started stomping on me, he [stated] fucking
asshole, I got shit all over my hands, so he started
stomping on me. Then he went into the kitchen, washed
his hands, I guess. And he came back out and proceeded
to just jump on me and stomp on me again. And when
I was pinned between the TV stand and the chair and
the woodstove so I was stuck; there was no way I could
move. So, he was stomping on me. Then he slipped and
when he slipped, he pushed the cushion open, and I
saw the knife sitting there cause I sat up. And then I
saw his—I grabbed the knife, and he grabbed the poker
that was—you’ll see it in the—video. Then I stabbed
him to just slow him down so I can get away from
him cause he was trying to crush my throat. He was
stomping.’’ On cross-examination, the defendant stated
that he was intoxicated and in shock at the time that
he spoke with the police and that he ‘‘said a lot of
things on the tape then. Now that I’ve learned, it’s a
different story.’’
Following trial, the jury found the defendant guilty
of, inter alia,3 manslaughter in the first degree in viola-
tion of § 53a-55 (a) (1). The court, Pavia, J., sentenced
3
See footnote 1 of this opinion.
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State v. Griffin

the defendant to twenty years of incarceration, execu-
tion suspended after sixteen years, with five years of
probation. This appeal followed. Additional facts and
procedural history will be set forth as necessary.
I
The defendant first claims that the court improperly
instructed the jury that ‘‘self-defense does not encom-
pass a preemptive strike.’’ We are not persuaded that
the court’s instructions, when read as a whole, misled
the jury.
We begin with the following relevant statutes, legal
standards, and principles. ‘‘An improper instruction on
a defense, like an improper instruction on an element
of an offense, is of constitutional dimension. . . . In
either instance, [t]he standard of review to be applied
to the defendant’s constitutional claim is whether it is
reasonably possible that the jury was misled. . . . In
determining whether it was . . . reasonably possible
that the jury was misled by the trial court’s instructions,
the charge to the jury is not to be critically dissected
for the purpose of discovering possible inaccuracies of
statement, but it is to be considered rather as to its
probable effect upon the jury in guiding them to a cor-
rect verdict in the case. . . . The charge is to be read
as a whole and individual instructions are not to be
judged in artificial isolation from the overall charge.
. . . The test to be applied to any part of a charge is
whether the charge, considered as a whole, presents
the case to the jury so that no injustice will result.’’
(Citations omitted; internal quotation marks omitted.)
State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743
(1995). ‘‘[B]ecause a challenge to the validity of a jury
instruction presents a question of law, we exercise ple-
nary review.’’ State v. Jones, 320 Conn. 22, 53, 128 A.3d
431 (2015).
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State v. Griffin

General Statutes § 53a-19 (a) provides in relevant part
that ‘‘a person is justified in using reasonable physical
force upon another person to defend himself or a third
person from what he reasonably believes to be the use
or imminent use of physical force, and he may use such
degree of force which he reasonably believes to be
necessary for such purpose; except that deadly physical
force may not be used unless the actor reasonably
believes that such other person is (1) using or about
to use deadly physical force, or (2) inflicting or about
to inflict great bodily harm.’’ The state bears the burden
of disproving self-defense beyond a reasonable doubt.
See, e.g., State v. Hughes, 341 Conn. 387, 397, 267 A.3d
81 (2021).
‘‘It is well settled that under § 53a-19 (a), a person
may justifiably use deadly physical force in self-defense
only if he reasonably believes both that (1) his attacker
is using or about to use deadly physical force against
him, or is inflicting or about to inflict great bodily harm,
and (2) that deadly physical force is necessary to repel
such attack. . . .
‘‘We repeatedly have indicated that the test a jury
must apply in analyzing the second requirement, i.e.,
that the defendant reasonably believed that deadly
force, as opposed to some lesser degree of force, was
necessary to repel the victim’s alleged attack, is a sub-
jective-objective one. The jury must view the situation
from the perspective of the defendant. Section 53a-
19 (a) requires, however, that the defendant’s belief
ultimately must be found to be reasonable. . . .
‘‘The subjective-objective inquiry into the defendant’s
belief regarding the necessary degree of force requires
that the jury make two separate affirmative determina-
tions in order for the defendant’s claim of self-defense
to succeed. First, the jury must determine whether, on
the basis of all of the evidence presented, the defendant
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in fact had believed that he had needed to use deadly
physical force, as opposed to some lesser degree of
force, in order to repel the victim’s alleged attack. . . .
If the jury determines that the defendant had not
believed that he had needed to employ deadly physical
force to repel the victim’s attack, the jury’s inquiry ends,
and the defendant’s self-defense claim must fail. If, how-
ever, the jury determines that the defendant in fact had
believed that the use of deadly force was necessary,
the jury must make a further determination as to
whether that belief was reasonable, from the perspec-
tive of a reasonable person in the defendant’s circum-
stances.’’ (Internal quotation marks omitted.) State v.
O’Bryan, 318 Conn. 621, 632, 123 A.3d 398 (2015).
In the present case, the defendant requested a self-
defense charge. In response, the state requested that
the jury be charged on the initial aggressor doctrine, a
statutory exception to the right to use self-defense.
Under that exception, a person generally is not justified
in using physical force and, thus, is not acting in self-
defense if he is the initial aggressor in the confrontation.
See General Statutes § 53a-19 (c) (2). In support of this
request, the state relied on the defendant’s statement
to the police that, when Knapp dragged him up the
walkway and told him to ‘‘shut up,’’ the defendant went
into the house, noted that Knapp ‘‘didn’t know I had a
knife underneath the fucking chair,’’ and stabbed Knapp
with the knife.
In denying the state’s request for an initial aggressor
instruction, the court stated ‘‘it really comes down to
this. That statement does not talk about a confrontation.
It really negates self-defense in that it’s saying I just
decided to stab him.’’ The court further stated, ‘‘I’m not
sure that it really goes to an initial aggressor . . . as
much as it goes to the fact that of whether or not self-
defense is—is even an appropriate defense.’’ The state
then requested that the court charge that ‘‘self-defense
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State v. Griffin

does not encompass a preemptive strike.’’ The defen-
dant objected to the preemptive strike instruction,
arguing that the facts of the case did not warrant such
an instruction. The trial court stated that it would
charge the jury that ‘‘self-defense does not encompass
a preemptive strike.’’
The court instructed the jury on self-defense as fol-
lows: ‘‘The statute requires that before a defendant uses
physical force upon another person to defend himself,
he must have two reasonable beliefs. The first is a
reasonable belief that the physical force is—I’m sorry.
A reasonable belief that physical force is then being
used, or about to be used, upon him. The second is a
reasonable belief that the degree of force he is using
to defend himself from what he believes to be an ongo-
ing or imminent use of force is necessary for that pur-
pose.’’ The court then defined ‘‘deadly physical force,’’
‘‘nondeadly physical force,’’ ‘‘physical injury,’’ and ‘‘rea-
sonable belief.’’
The court then stated that ‘‘the defense of self-defense
has four elements. The first element is that the defen-
dant used defensive force against James Knapp—I’m
sorry. I’m going to say that again. Is that when the
defendant used defensive force against James Knapp,
he actually believed that the other person was using
physical force against him, or that the use of physical
force against him was imminent.
‘‘The word imminent means that the person is about
to use physical force at that time and not at some
unspecified future time.
‘‘If you have found that the force used by the defen-
dant was deadly physical force, then you must find that
the defendant actually believed that James Knapp was
not only using or about to use physical force upon him,
but that the other person was either using or about to
use deadly physical force against him, or inflicting or
about to inflict great bodily harm upon him. The term
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State v. Griffin

great has its ordinary meaning and indicates a bodily
harm that is substantially more than minor or inconse-
quential harm.
‘‘The act of leading to the defendant’s use of defensive
physical force need not be an actual threat or assault.
The test is not what the other person actually intended,
but what the other person’s act caused the defendant
to believe was the intention of the other. In other words,
the danger to which the defendant was reacting need
not have been actual or real.
‘‘In judging the danger to himself, the defendant is
not required to act with infallible judgment. A person
acting in self-defense is sometimes required to act
instantly and without time to deliberate and investigate.
Under such circumstances it is possible to perceive an
actual threat when none in fact exists. The defense of
self-defense however does not encompass a preemptive
strike.’’ (Emphasis added.) The court then stated that
‘‘the second element is that the defendant’s actual belief
about the force being used or about to be used against
him was a reasonable belief.’’ Subsequently, the court
discussed the third and fourth elements of whether the
defendant actually believed the degree of force he used
was necessary and whether that actual belief was a
reasonable belief.
Our Supreme Court has stated on a number of occa-
sions that ‘‘[t]he defense of self-defense does not
encompass a preemptive strike . . . .’’ (Internal quota-
tion marks omitted.) State v. Hargett, 343 Conn. 604,
621, 275 A.3d 601 (2022); see also State v. Jones, supra,
320 Conn. 54; State v. Lewis, 245 Conn. 779, 813, 717
A.2d 1140 (1998); State v. Lewis, 220 Conn. 602, 620,
600 A.2d 1330 (1991). On appeal, the defendant con-
cedes that it is legally correct that, under Connecticut
law, self-defense does not encompass a preemptive
strike but argues that such an instruction was nonethe-
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State v. Griffin

less improper under the facts and circumstances of the
present case. He contends that a preemptive strike is
‘‘another way of talking about the requirement of immi-
nence as a condition for the use of self-defense. A per-
son is justified in using force to prevent imminent
threat of injury’’ and that the court did not give the
preemptive strike instruction in the context of immi-
nence but rather in the context of whether the defen-
dant reasonably had perceived a threat from Knapp.
(Emphasis in original.)
The defendant argues that, because the preemptive
strike instruction was given in such context, it ‘‘played
directly into the state’s argument that, under [the defen-
dant’s] account, Knapp had not yet drawn the fire poker
from its stand. . . . But it is this sense of ‘preemptive
strike’ that would mislead the jury about the law. A
person is not required to wait until the last possible
second (until after a weapon has been drawn and read-
ied for use) to defend himself. Such a person can strike
first to preempt the imminent use of force against him.’’
(Citation omitted.) He contends that the instruction
improperly suggested ‘‘that, if Knapp had not yet drawn
the poker, then [the defendant’s] actions did not amount
to self-defense, even if the jury believed [the defen-
dant’s] account. The jury was left to believe that pre-
emptive strike is not allowed when one is evaluating
the attacker’s intentions in the heat of the moment. This
was incorrect.’’ (Emphasis in original.) The defendant’s
claim is flawed for two reasons. First, the premise of
the defendant’s claim that the court’s instruction was
divorced from its discussion of imminence is simply
not accurate. The court’s preemptive strike instruction
occurred when the court was discussing the concept
of imminence and prior to the court stating that it was
then turning to the element of self-defense regarding
whether the defendant had a reasonable belief that use
of deadly physical force was necessary. The preemptive
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strike instruction was given in close proximity to the
court’s defining of the word ‘‘imminent.’’ The court
made clear in its instruction on imminence that the
defendant was not required to act with infallible judg-
ment but rather that a person acting in self-defense
must sometimes act instantly and without time to delib-
erate and investigate and that, under such circum-
stances, it is possible to perceive an actual threat when
none in fact exists.
It perhaps would have been clearer for the court to
have employed the preemptive strike language immedi-
ately after mentioning and defining the term imminence
or, alternatively, not to have used the phrase at all.4
4
The cases that discuss a ‘‘preemptive strike’’ do so not in the context
of whether a preemptive strike jury instruction was proper, but rather in
other contexts, such as whether the defendant was entitled to an instruction
on self-defense at all. See State v. Hargett, supra, 343 Conn. 616–25 (analyzing
claim that trial court incorrectly concluded that there was insufficient evi-
dence to entitle defendant to self-defense instruction); State v. Lewis, supra,
245 Conn. 809–13 (analyzing claim that trial court improperly failed to charge
jury on self-defense); State v. Lewis, supra, 220 Conn. 617–20 (analyzing
claim that trial court improperly failed to instruct on elements of self-
defense); State v. Grasso, 189 Conn. App. 186, 197–222, 207 A.3d 33 (analyzing
claim that state failed to disprove beyond reasonable doubt that defendant
acted in self-defense), cert. denied, 331 Conn. 928, 207 A.3d 519 (2019);
Daniel v. Commissioner of Correction, 57 Conn. App. 651, 674–76, 751
A.2d 398 (analyzing claim of ineffective assistance of counsel for failure to
investigate and advance theory of self-defense), cert. denied, 254 Conn. 918,
759 A.2d 1024 (2000); State v. Carter, 34 Conn. App. 58, 64–68, 640 A.2d 610
(1994) (analyzing claim that trial court improperly refused to instruct jury
on issue of self-defense), rev’d, 232 Conn. 537, 656 A.2d 657 (1995).
In State v. Jones, supra, 320 Conn. 22, our Supreme Court, when determin-
ing that there was no reasonable possibility that the jury was misled by the
court’s instruction on the initial aggressor exception to self-defense, stated
that ‘‘[t]he defense of self-defense does not encompass a preemptive strike’’
to provide support for the proposition that ‘‘the use of physical force in
defense of oneself is justified only if the person claiming self-defense hon-
estly and reasonably believes that an attack is imminent.’’ (Internal quotation
marks omitted.) Id., 54. This case does not address the propriety of a preemp-
tive strike instruction, but it reenforces the connection of the concept of a
preemptive strike to the notion of imminence.
None of these cases, however, contains a review of the propriety of a jury
instruction using the preemptive strike language. It may be better practice
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State v. Griffin

The difficulty with using the phrase ‘‘preemptive strike’’
as shorthand for the lack of imminence is that it is
possible to construe it in two ways. It can mean that
a defendant is justified in using a preemptive strike
when he is facing an imminent attack. It can also be
used as shorthand to describe an impermissible use of
self-defense because there is no imminent attack. In
the present case, however, as discussed previously, it
is not reasonably probable, in light of the court’s self-
defense instruction as a whole, that the jury was misled.
Second, the evidence adduced at trial raised a ques-
tion of imminence and a preemptive strike instruction
was consistent with Connecticut law on self-defense.
The defendant admitted that he had stabbed Knapp and
the question before the jury was whether the stabbing
was done in self-defense. At trial, the defendant testified
that Knapp helped him remove his pants after he had
defecated himself, but that Knapp ‘‘snapped’’ when he
got feces on his hands and ‘‘started stomping’’ on the
defendant. The defendant testified that Knapp went to
the kitchen to wash his hands and, when Knapp
returned to the living room, he continued to stomp on
the defendant and tried to crush his neck. The defendant
stated that when Knapp reached for the fireplace poker,
he grabbed a knife that had been revealed when Knapp
slipped and inadvertently moved a couch cushion. The
defendant’s trial testimony, which is the only version
of events in which a fireplace poker is mentioned, raises
a question of self-defense. This version of events, how-
ever, was not the only one before the jury.
A question of whether the stabbing was unlawfully
preemptive arises when the defendant’s trial testimony
is viewed in light of the evidence adduced at trial that
to refrain from using the phrase ‘‘preemptive strike’’ in jury instructions or
to do so only if the language is crystal clear that a preemptive strike is the
use of force by a defendant when there is no imminent threat of injury to him.
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Knapp’s body was found in the kitchen and that the
defendant was largely lacking in injuries and had no
injuries to his neck.5 If the jury discredited the portion
of the defendant’s testimony that Knapp, after washing
his hands in the kitchen, returned to the living room
and stomped on the defendant while placing his foot
on the defendant’s neck and grabbing for the fireplace
poker, then a question arises of whether the defendant
stabbed Knapp after Knapp went into the kitchen to
wash his hands.
The version of events that the defendant told the
police essentially amounts to him admitting that he
decided to stab Knapp. The defendant explained to the
police on the night of May 7, 2022, that Knapp dragged
him into the house and that the defendant ran into the
house, found a knife, and stabbed Knapp. This scenario
does not involve Knapp reaching for a fireplace poker.
On cross-examination, the defendant, after watching
the surveillance video of the night in question, stated
that his statement to the police that Knapp had dragged
him up the walkway was not true. The defendant stated
that he went inside the house and stabbed Knapp, after
Knapp said, ‘‘ah, fuck you’’ and ‘‘shut up.’’ Certainly,
this raised a question for the jury of whether the strike
was improperly preemptive because any physical force
by Knapp against the defendant was not imminent.
In sum, the evidence presented multiple factual sce-
narios before the jury and raised a question of immi-
nence and whether the defendant acted improperly by
preemptively stabbing Knapp in the absence of a reason-
able belief that Knapp posed an imminent threat of
physical harm to the defendant. Accordingly, the defen-
dant’s claim of instructional error fails.
5
The defense introduced into evidence photographs taken by a defense
investigator on the day of the defendant’s arraignment, which defense coun-
sel argued supported his version of events that Knapp had attacked him.
The photographs do not depict the defendant’s neck.
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II
The defendant next claims, relying on Doyle v. Ohio,
supra, 426 U.S. 610, that the state improperly infringed
on his constitutional right to remain silent when, during
rebuttal closing argument, it impermissibly commented
on his post-Miranda silence. We conclude that the
defendant’s unpreserved claim fails under the third
prong of State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015).
The defendant seeks Golding review of his unpre-
served claim. ‘‘Under Golding, a defendant can prevail
on a claim of constitutional error not preserved at trial
only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude, alleging
the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. . . . The first two Golding require-
ments involve whether the claim is reviewable, and the
second two involve whether there was constitutional
error requiring a new trial.’’ (Internal quotation marks
omitted.) State v. Devito, 159 Conn. App. 560, 568, 124
A.3d 14, cert. denied, 319 Conn. 947, 125 A.3d 1012
(2015). The record is adequate for review of the defen-
dant’s claim because it contains the full transcript of
the defendant’s criminal proceedings. The claim, which
alleges a due process violation, is of constitutional mag-
nitude. See id.
The following legal principles guide our analysis of
the third prong of Golding. ‘‘[In] Doyle v. Ohio, supra,
426 U.S. 611 . . . the United States Supreme Court held
that the impeachment of a defendant through evidence
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State v. Griffin

of his silence following his arrest and receipt of
Miranda warnings violates due process. . . . [T]he
holding in Doyle was based on two considerations: First,
[Doyle] noted that silence in the wake of Miranda warn-
ings is insolubly ambiguous and consequently of little
probative value. Second and more important[ly], it
observed that [although] it is true that the Miranda
warnings contain no express assurance that silence will
carry no penalty, such assurance is implicit to any per-
son who receives the warnings. In such circumstances,
it would be fundamentally unfair and a deprivation of
due process to allow the arrested person’s silence to
be used to impeach an explanation subsequently offered
at trial.’’ (Internal quotation marks omitted.) State v.
Patrick M., 344 Conn. 565, 582, 280 A.3d 461 (2022).
‘‘[O]ur Supreme Court has recognized that it is also
fundamentally unfair and a deprivation of due process
for the state to use evidence of the defendant’s post-
Miranda silence as affirmative proof of guilt . . . .
Miranda warnings inform a person of his right to
remain silent and assure him, at least implicitly, that
his silence will not be used against him. . . . [A]s a
factual predicate to an alleged Doyle violation, the
record must demonstrate that the defendant received
a Miranda warning prior to the period of silence that
was disclosed to the jury.’’ (Internal quotation marks
omitted.) State v. Reddick, 174 Conn. App. 536, 553, 166
A.3d 754, cert. denied, 327 Conn. 921, 171 A.3d 58 (2017),
cert. denied, 583 U.S. 1135, 138 S. Ct. 1027, 200 L. Ed.
2d 285 (2018).
In State v. Silano, 204 Conn. 769, 783–84, 529 A.2d
1283 (1987), our Supreme Court made an important
distinction between a prosecutor’s comments concern-
ing prior inconsistent statements made by a defendant
and a prosecutor’s comments on the defendant’s post-
Miranda silence. Although the Doyle claim in Silano
arose in the context of a prosecutor’s cross-examination
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State v. Griffin

of the defendant, the analysis in Silano is equally appli-
cable to the present case involving remarks made by a
prosecutor during closing argument. In that case, our
Supreme Court stated: ‘‘The state may impeach a defen-
dant by cross-examination concerning a prior inconsis-
tent statement made after arrest and the giving of
Miranda warnings, even though such impeachment
may call into question a defendant’s silence about the
truth when he made that prior inconsistent statement.
. . . Such an examination is allowed because it is
impossible to bifurcate a prosecutor’s questions con-
cerning inconsistency into those relating to facts con-
tained in a prior statement and those concerning facts
omitted therefrom. . . . A prosecutor may not, how-
ever, question a defendant about his silence after the
interrogation has ceased, since a defendant may reas-
sert his right to remain silent at any time, and if he
ceases to answer questions, or to come forward with
additional or correcting information after questions are
no longer being asked of him, there is a reasonable
possibility that he is relying upon that right.’’ (Citations
omitted; internal quotation marks omitted.) Id., 780–81.
The defendant challenges the following italicized
remarks made by the prosecutor during rebuttal argu-
ment. In the first comment, the prosecutor stated: ‘‘It’s
amazing, that kind of detail he has, and can’t remember
anything else, and says this for the first time. Amazing.
There’s no mention of a struggle until Friday. There’s
no mention of a poker—a fireplace poker. There’s no
mention of my dog likes me more than you by Mr.
Knapp. Who doesn’t he mention it to? This is all the
people he had a chance to speak to. Here we go. The
911 dispatcher, Trooper Tharas, Trooper Cardenas,
Detective Barbero, Doctor Tammy Weiner, the ER phy-
sician. None of this is mentioned to those five people.
Not a word. Almost three hours, when it’s fresh in his
mind, nothing.’’ (Emphasis added.)
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In the second comment, the prosecutor stated: ‘‘If
you want to slow him down, why don’t you aim for his
leg? He grabs a poker. That’s your claim? And but you
don’t tell anybody else until eleven and half months
later, and that’s suddenly it? When he testifies in court.
He doesn’t tell anybody that night, when speaking to
five different people.’’ (Emphasis added.)
In the third comment, the prosecutor stated: ‘‘Think
about all the holes in this case. No mention of a poker.
No mention of a struggle. No mention of any of this
stuff, until he testifies today, to the five people he
spoke to in almost three hours. None of that.’’ (Empha-
sis added.)
On appeal, the defendant argues that the prosecutor
did not violate Doyle by commenting on what the defen-
dant said or omitted during his statements to the police
on May 7, 2022, but that the prosecutor violated Doyle
by ‘‘choos[ing] to take [the defendant] to task for, after
that night, waiting until trial to present his side of the
facts.’’ The defendant argues that ‘‘[t]he prosecutor’s
comments in this case are directly analogous to those
used in [State v.] Patrick M., [supra, 344 Conn. 565].’’
To resolve this issue, we must determine whether
the prosecutor permissibly commented on the inconsis-
tencies between the defendant’s statements to the
police and his trial testimony or impermissibly com-
mented on the defendant’s post-Miranda silence fol-
lowing his statements to the police. In determining
whether the prosecutor’s ambiguous comments violate
Doyle, we must ‘‘analyze whether the language used
[by the prosecutor was] manifestly intended to be, or
was . . . of such a character that the jury would natu-
rally and necessarily take it to be a comment on the
[defendant’s post-Miranda silence]. . . . [I]n applying
this test, we must look to the context in which the
statement was made in order to determine the manifest
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State v. Griffin

intention [that] prompted it and its natural and neces-
sary impact [on] the jury.’’ (Emphasis in original; inter-
nal quotation marks omitted.) Id., 588.
In Patrick M. the defendant claimed that he was
deprived of his due process right to a fair trial by the
prosecutor’s commentary on his post-Miranda silence.
Id., 581. The defendant exercised his right to remain
silent and broke that silence when he testified at trial.
Id., 578. The question in that case was whether the
prosecutor’s ambiguous remarks constituted permissi-
ble commentary on the defendant’s pre-Miranda
silence or impermissible and unconstitutional commen-
tary on his post-Miranda silence. Id., 583–84. Our
Supreme Court determined that ‘‘some of the prosecu-
tor’s comments, specifically the ones that emphasized
that ‘today’ or ‘this morning’ was the ‘first time’ that
the defendant told his story, naturally and necessarily
would have been construed by the jury as commentary
on the defendant’s post-Miranda silence. This conclu-
sion is compelled by the repeated, unmistakable empha-
sis that the prosecutor placed on the recency of the
defendant’s disclosure of his exculpatory version of
events.’’ Id., 589. The court concluded that the prosecu-
tor’s comments violated Doyle and that the state failed
to fulfill its burden of demonstrating harmlessness.
Id., 588–93.
As articulated by our Supreme Court in Patrick M.,
the naturally and necessarily test depends heavily on
context. Id., 588; see id. (‘‘[i]n applying this test, we
must look to the context in which the statement was
made in order to determine the manifest intention [that]
prompted it and its natural and necessary impact [on]
the jury’’ (internal quotation marks omitted)); see also
State v. Devito, supra, 159 Conn. App. 572 (concluding
that no Doyle violation occurred because, ‘‘[g]iven the
context in which the question was asked . . . it is more
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State v. Griffin

probable that it would have been understood to refer
to the defendant’s prearrest silence’’).
Patrick M. is distinguishable from the present case
because, in that case, unlike the present case, the defen-
dant had not made any statements to the police that
were arguably inconsistent with his trial testimony. In
the present case, it was fair game for the prosecutor to
argue that the defendant had left out important details
in his voluntary statements to the police that were later
included in his trial testimony. The prosecutor’s com-
ments in the present case are heavily ladened with
descriptions of the individuals with whom the defen-
dant spoke on May 7, 2022, and what factual details the
defendant failed to mention to these individuals but
instead were self-servingly disclosed in his trial testi-
mony, such as detailing that Knapp had wielded the
fireplace poker.
In other words, the most reasonable import of the
prosecutor’s comments was that they highlighted the
inconsistencies between the defendant’s May 7, 2022
statements and his trial testimony. The prosecutor’s
comments would not naturally and necessarily have
been taken by the jury as commentary on the defen-
dant’s silence after having spoken to the police or, in
other words, his decision not to later and voluntarily
come forward to inform the police about the fireplace
poker. Rather, these arguments would naturally and
necessarily have been taken by the jury as commentary
on the discrepancies between the defendant’s state-
ments on May 7, 2022, and his trial testimony. It simply
does not violate Doyle for the prosecutor to highlight
inconsistencies between the defendant’s out-of-court
statements that are admitted at trial and his trial testi-
mony. See State v. Casey, 201 Conn. 174, 185, 513 A.2d
1183 (1986) (‘‘[t]he fact that the defendant failed to
mention [a certain incident] during police questioning
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State v. Griffin

but testified to that incident during his trial is the equiva-
lent of having given inconsistent statements for the
purposes of [Doyle]’’). Accordingly, the defendant’s
claim fails under the third prong of Golding.
The judgment is affirmed.
In this opinion the other judges concurred.