State Of Conn. v. Gardner., No. 18071.

• Decision Date: 22 June 2010
• Docket Number: No. 18071.
• Citation: 297 Conn. 58,1 A.3d 1
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Everton GARDNER.

297 Conn. 58

1 A.3d 1

STATE of Connecticut

v.Everton GARDNER.

No. 18071.

Supreme Court of Connecticut.

Argued March 25, 2010.

Decided June 22, 2010.

Heather M. Wood, deputy assistant public defender, for the appellant (defendant).

Timothy F. Costello, deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Vicki Melchiorre, senior assistant state's attorney, and Chris Pelosi, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js. ^*

PER CURIAM.

The defendant, Everton Gardner, was convicted after a jury trial of murder in violation of General Statutes § 53a-54a(a), carrying a pistol without a permit in violation of General Statutes § 29-35(a), attempt to commit murder in violation of § 53a-54a(a) and General Statutes § 53a-49(a)(2), assault in the first degree in violation of General Statutes § 53a-59(a)(1), carrying a dangerous weapon in violation of General Statutes § 53-206(a), burglary in the second degree in violation of General Statutes § 53a-102(a), and criminal violation of a protective order in violation of General Statutes § 53a-223(a). The defendant appeals ¹ from the judgment of conviction claiming that the trial court improperly denied his motion to suppress a statement that he had given to the police on the ground that he had not voluntarily waived his Miranda ² rights and that he had not voluntarily given the statement. The defendant also raises the unpreserved claims that the trial court improperly permitted the state to introduce evidence of uncharged misconduct and physical evidence that had been seized by hospital staff and delivered to the police in violation of his rights under the fourth and fourteenth amendments to the United States constitution. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and his wife, Diane Lurry, lived at 53 Giddings Street in Hartford. In May, 2003, after the defendant assaulted Lurry, she obtained a protective order that prohibited the defendant from entering their residence or from contacting, harassing or assaulting her. Pursuant to the protective order, the defendant removed himself from the residence.

Lurry testified that the defendant kept a key to the residence, however, and, on two occasions, entered the residence and forced Lurry to have sex with him. In July, 2003, Lurry changed the locks on the house. Meanwhile, Lurry had begun dating Edward Coletosh. When the defendant learned about Lurry's relationship with Coletosh, he became angry and called Lurry numerous times, threatening to kill her.

On September 27, 2003, Lurry discovered signs that someone had attempted to break into her residence. She called the Hartford police department and Officer Daniel Goicochea responded. Upon investigation, Goicochea discovered that someone had entered Lurry's basement through a window and had then attempted to enter the main floor of the residence by prying open the basement door. Lurry told Goicochea that she suspected that the intruder had been the defendant. Because she was frightened, Lurry called Coletosh and asked him to come to the residence. Coletosh came and stayed with Lurry.

Later on the evening of September 27, 2003, the defendant parked his car on Wilbur Street, which runs behind Lurry's residence, parallel to Giddings Street. At approximately 2 a.m. on the morning of September 28, 2003, Lurry and Coletosh were awakened by noise outside the residence. Upon looking out the kitchen window, they saw the defendant standing on a chair in the backyard and looking in a window. Lurry and Coletosh returned to the bedroom and dressed. Coletosh then went to the front door and opened it. The defendant was standing on the front steps, opening the exterior screen door. He raised a gun and shot Coletosh in the chest.

The defendant and Coletosh then engaged in a struggle for the gun, during which both the defendant and Coletosh incurred gunshot wounds. Coletosh attempted to run away from the defendant, but the defendant chased him. Eventually, Coletosh ran up Giddings Street and the defendant entered the residence. Lurry, who was attempting to dial 911, saw the defendant and ran out the front door, with the defendant in pursuit. Lurry ran toward a neighboring house while the defendant attempted unsuccessfully to reload his gun. Having failed to reload the gun, the defendant retrieved a machete. When Lurry tripped and fell in the driveway of the residence at 58 Giddings Street, the defendant attacked her with the machete. Lurry eventually decided to pretend that she was dead and the defendant went away. Lurry then rang the doorbell of the residence at 58 Giddings Street. She collapsed as the residents came to the door. Lurry sustained serious injuries, but survived the defendant's attack. Coletosh died of his wounds.

Thereafter, the defendant was arrested and charged with murder, carrying a pistol without a permit, attempt to commit murder, assault in the first degree, carrying a dangerous weapon, burglary in the second degree and criminal violation of a protective order. Before trial, the defendant filed a motion to suppress a statement that he had given to Robert Davis, a detective with the Hartford police department, on September 28, 2003. The defendant argued that he had not knowingly and voluntarily waived his Miranda rights before giving the statement and that he had not knowingly and voluntarily given the statement. After conducting a hearing on the motion, the trial court issued a memorandum of decision in which it found the following facts. The defendant was admitted to Hartford Hospital on September 28, 2003, for treatment of a gunshot wound to his thigh. He underwent surgery from approximately 4 a.m. to approximately 7 a.m. The defendant received general anesthesia during the surgery and, afterward, he was placed in the intensive care unit. At approximately 7 a.m., the defendant received two to four milligrams of dilaudid, a pain medication. He did not receive another dose of the pain medication until 9 p.m. State v. Gardner, 51 Conn.Supp. 420, 421, 1 A.3d 271 (2007).

At approximately 3:30 p.m., Davis arrived at Hartford Hospital. Upon his arrival, Davis relieved another police officer who had been stationed outside of the defendant's room in the intensive care unit. At approximately 7:30 p.m., the defendant was seen by the attending physician. Thereafter, Davis spoke with the attending physician, who told Davis that the defendant could be interviewed. The defendant's medical records state that the defendant was “ ‘awake, alert, oriented to place, person, [and] time’ ” at 8 p.m. Id. Davis began his interview of the defendant at approximately 8:30 p.m. He described the defendant's condition as alert, conscious, awake, normal and lucid. On the basis of Davis' prior experience of interviewing hundreds of people under the influence of drugs and alcohol, he determined that the defendant was not under such an influence and was competent to give a statement. Id.

By the time that Davis interviewed the defendant, the defendant had already been placed under arrest. When Davis entered the hospital room, he was dressed in plain clothes with a polo style shirt with a Hartford police logo sewn on it. He identified himself to the defendant as a police officer and showed him his badge. Davis then read the defendant his Miranda rights from a preprinted form. The defendant interrupted Davis and said that he understood his rights. Nevertheless, Davis continued to read the preprinted form in its entirety. After Davis read the defendant his rights, neither Davis nor the defendant signed or made any mark on the Miranda rights form. The defendant stated that he understood his rights and was willing to speak with Davis, but did not want to sign the form. After the interview, Davis asked if the defendant wished to make a written statement. The defendant declined to do so. Id., at 422, 1 A.3d 271.

On the basis of these facts, the trial court concluded that the state had proved by a preponderance of the evidence that the defendant voluntarily had waived his Miranda rights. Id., at 423, 1 A.3d 271. Accordingly, it denied the defendant's motion to suppress. Id., at 425, 1 A.3d 271.

At trial, Davis testified that the defendant had told him during the interview on September 28, 2003, that he had driven to 53 Giddings Street sometime in the very early morning hours on that date. When he arrived, he saw a car that he recognized as belonging to a drug dealer with the nickname Ding Dong. The defendant believed that Ding Dong previously had paid Lurry for sex. He entered the residence and saw Lurry and Ding Dong engaged in a sex act. He then retrieved a revolver that he kept concealed under the carpet in the bedroom, intending only to threaten Ding Dong with it. After he threatened Ding Dong, a fight ensued and the gun fired one or two times. Thereafter, the defendant retrieved a machete from under a couch in the living room, intending to strike Lurry with the flat side of the machete, not the sharp edge.

On appeal, the defendant claims that the trial court improperly denied his motion to suppress this evidence because he had not knowingly and voluntarily waived his Miranda rights before giving the statement to Davis and he had not voluntarily given the statement. Specifically, he...