Joseph Thorpe shot and killed Roberto Vargas in 2019 and was found guilty in 2023 of one count of murder in the shooting death.
Vargas was 23 when he died after being gunned down on a city street.
After he was convicted and sentenced to 50 years in prison, Thorpe, now 33, claimed to the Connecticut Supreme Court that the trial court committed “plain error in permitting the state to cross-examine him as to his pre-arrest silence,” according to the judicial branch. Thorpe claimed that “evidence was introduced without satisfying the evidentiary standard for admissibility, which requires proof of circumstances naturally calling for him to speak.”
The Connecticut Supreme Court disagreed.
In light of the established case law on the issue, we conclude that the defendant has not ‘‘met his burden of establishing a most egregious error warranting reversal of his conviction,” the court ruling says.
Further, the “trial court’s admission of the defendant’s prearrest silence was not plain error,” the court found. That means the conviction stands.
Thorpe was convicted of murder in connection with the shooting death after unsuccessfully asserting a self-defense claim at trial. The shooting took place during a drug deal in Hartford, according to court records.
Thorpe, who had testified at trial, claimed that the trial court committed plain error by permitting the prosecutor to cross-examine him regarding his prearrest silence, specifically, his failure to report to the police after the murder but before being arrested that he allegedly had shot the victim in self-defense, according to the court.
Surveillance cameras in the area captured the moments leading up to the shooting, showing a man, later identified as Thorpe, wearing a white tank top and black pants with a white stripe walking west on Farmington Avenue where he confronted Vargas, who was on a bicycle, according to the arrest warrant affidavit.
Several witnesses were also able to identify Thorpe as the shooting suspect. One witness said it appeared as though Thorpe had an issue with Vargas that resulted in an argument, the arrest warrant affidavit said. The same witness reported hearing gunshots before Vargas collapsed on the ground.
A ShotSpotter alert detected gunfire in an area of Farmington Avenue in Hartford. Officers dispatched to the area found Vargas, who had multiple gunshot wounds, court records said.
Vargas was taken to Saint Francis Hospital where he died later that morning, according to court records.
The court ruling notes that Thorpe lived in Hartford and “sold narcotics in the vicinity of Asylum Avenue and Laurel Street.” Through his narcotics sales, the defendant developed contacts with other drug dealers in the area, including the victim.
In the early morning hours of Aug. 3, 2019, Thorpe was asked to meet another dealer near HFC Chicken and Pizza (restaurant) for a drug purchase, the court wrote.
Shortly before 3 a.m., Thorpe arrived on Farmington Avenue across the street from the restaurant. When Thorpe approached that location, the other dealer was standing in a group that included the victim and two other people. Thorpe “carried a gun in his pocket; no one else in the group was armed,” the ruling says.
Soon after Thorpe’s arrival, he and the victim had a verbal altercation, “the dispute escalated, and the victim attempted to punch the defendant. Before the victim landed a blow, the defendant shot him,” the ruling says.
Three people and Vargas “immediately ran, while the defendant continued to fire five additional shots at the victim before fleeing the scene.”
Vargas “sustained three gunshot wounds to the torso, the ruling says. After running a short distance, he collapsed on the corner of South Marshall Street and Farmington Avenue. He was later transported to a hospital where he died. The defendant did not report the incident to the police,” the ruling says.
Thorpe was arrested and charged with murder and at trial testified that he had shot the victim in self-defense. He testified that, on the day of the shooting, he “had argued with the victim over payment for drugs.”
“He told the jury that the argument ended when the victim pulled a gun from his hoodie and ‘‘cock[ed] it back’’ to shoot the defendant, causing the defendant to act in self-defense by firing first,” the ruling says. There was no gun found on the victim, records show.
Prior to cross-examining the defendant, the prosecutor asked the trial court, outside the presence of the jury, whether she could ‘‘ask [the defendant] why he didn’t report [to the police] the fact that he had fired in self-defense.’’ The prosecutor “cited case law in support of her argument that the law permitted this inquiry into the defendant’s prearrest silence,” the ruling says, and defense counsel “objected on the ground that the question was outside the scope of the direct examination of the defendant.”
Defense counsel then argued that the defendant had ‘‘an absolute right to silence’’ and that ‘‘[h]e [did not] have to report anything,” the ruling says.
The trial court allowed the questioning, providing three reasons for its ruling: (1) ‘‘the defendant, by taking the [witness] stand … waive[d] his fifth amendment right to silence’’; (2) ‘‘the failure to report self-defense is presumptively conduct that’s inconsistent with a claim of self-defense or with innocence [and is] essentially an admission by silence [in] circumstances [in which] one would naturally be expected to speak’’; and (3) the cross-examination would be limited to prearrest silence ‘‘so that there’s no ambiguity stemming from the issuance of Miranda3 warnings, which … advise the defendant that he [has] a right to remain silent.’’
The court quoted testimony it said was “at the center of the defendant’s claim in this appeal,” and occurred during cross-examination:
‘‘[The Prosecutor]: Now, after you shot, supposedly in self-defense … did you call 911?
‘‘[The Defendant]: No.
‘‘[The Prosecutor]: Did you stay on the scene and tell anybody what happened?
‘‘[The Defendant]: No, I left.
‘‘[The Prosecutor]: Did you call the police later and say, someone pulled a gun on me?
‘‘[The Defendant]: No.
‘‘[The Prosecutor]: Did you tell anyone that [you] had to act in self-defense because … [you were] afraid for [your] life?
‘‘[The Defendant]: I told my parents.
‘‘[The Prosecutor]: Well, you told your parents, or you told your parents you didn’t actually do anything?
‘‘[The Defendant]: No … I told my parents … the whole situation.
‘‘[The Prosecutor]: Did you tell [your girlfriend] that you didn’t do anything?
‘‘[The Defendant]: I didn’t tell nobody but my parents.
‘‘[The Prosecutor]: I’m sorry?
‘‘[The Defendant]: I didn’t tell anybody but my parents.
‘‘[The Prosecutor]: But your parents? Okay. And is your girlfriend (female name)?
‘‘[The Defendant]: Yes.
‘‘[The Prosecutor]: And did you tell [your girlfriend] that … we’re trying to say that was you on the video, but the video is not you?
‘‘[The Defendant]: I don’t recall.
‘‘[The Prosecutor]: Did you tell [your girlfriend] that … ‘[t]hey’re saying I did it, they’re trying to, but I ain’t do s—?’
‘‘[The Defendant]: I can’t recall.’’
The jury subsequently found the defendant guilty of murder.
The trial court sentenced Thorpe to 50 years in prison.
On appeal, Thorpe claimed the trial court abused its discretion by permitting the prosecutor to cross-examine him about his prearrest silence, namely, his failure to report to the police that he had shot the victim in self-defense. He contends that this case lacked the ‘‘key fact’’ necessary to support this line of questioning because he ‘‘was never in a situation [in which] he remained silent when a response was naturally called for.’’
The court said, he sought reversal under the plain error doctrine, a review “reserved for only the most egregious errors. . . . [I]t is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal…“
The court said it employs “a two-pronged test to determine whether plain error has occurred: the defendant must establish that (1) there was an obvious and readily discernable error, and (2) that error was so harmful or prejudicial that it resulted in manifest injustice.’’
It is well-settled that, under (a precedent case), ‘‘the impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process.’’ However, the use of a defendant’s prearrest and pre-Miranda silence, by contrast, does not present the same constitutional concerns. And, prearrest ‘‘silence under circumstances [in which] one would naturally be expected to speak may be used either as an admission or for impeachment purposes,” the ruling says.
On appeal, “the defendant does not cite any authority to support his claim that the circumstances presented by this case are, as a matter of law, one in which a person would not be naturally expected to speak. Instead, he attempts to distinguish several federal and Connecticut cases from the present case to advance his contention that the admission of his prearrest silence constituted an ‘obvious and readily discernable error …’’
The defendant argued that, “unlike the defendants in those cases, he was not naturally expected to speak to the police because he had fled the scene of an illegal drug transaction, feared that the victim was still a threat to his life, and was not questioned by the police prior to his arrest. Although we agree that this case presents some factual distinctions from the cases on which the trial court relied in support of its decision to admit evidence of the defendant’s prearrest silence, we are not persuaded that those differences are significant enough that the admission of the defendant’s prearrest silence constituted plain error,” the court ruling says.
“In other words, the relevant case law does not provide enough support for the defendant’s claim so as to compel a conclusion that the trial court committed an obvious and egregious error,” the ruling says.
Robert L. O’Brien, of the Law Office of Christopher Duby LLC, who represented Thorpe in the appeal, said in his brief to the court prior to the ruling that a “manifest injustice” occurred.
“The state relied on two drug dealers who wanted the neighborhood where this incident occurred for their own drug sales territory,” O’Brien wrote. “Even one of them, Vargas’ brother, admitted that Vargas went to punch the defendant first; this was after he sought to get help with his own criminal case before giving information about his brother’s killing.”