State v. Darwin

• Decision Date: 09 February 1972
• Docket Number: No. 2508,2508
• Citation: 290 A.2d 593,29 Conn.Supp. 423
• Parties: STATE of Connecticut v. Roy F. DARWIN.
• Court: Connecticut Superior Court

Page 593

290 A.2d 593

29 Conn.Supp. 423

STATE of Connecticut v. Roy F. DARWIN.

No. 2508.

Superior Court of Connecticut, Tolland County.

Feb. 9, 1972.

Abbot B. Schwebel, Asst. State's Atty., for the state.

John F. Shea, Jr., Sp. Public Defender, for defendant.

NARUK, Judge.

On December 18, 1963, the defendant was indicted for first-degree murder. On January 24, 1964, he entered a plea of not guilty. After a jury trial, he was found guilty of murder in the second degree on March 25, 1964. Upon appeal to the United States Supreme Court, the conviction was reversed and further proceedings ordered. Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630. Following a second trial, the defendant was again found guilty of second-degree murder by a three-judge panel on January 15, 1969. Upon appeal to the Connecticut Supreme Court, this second conviction was also set aside and a new trial ordered. State v. Darwin, 161 Conn. 413, 288 A.2d 422.

The defendant, prior to the commencement of the new trial has filed a motion to suppress certain statements allegedly made by him to the sheriff of Tolland County while the defendant was incarcerated at the Tolland County jail during the interval between his arrest on a bench warrant on December 8, 1963, and his indictment. It is essential to note that prior to his arrest on the bench warrant referred to, the defendant was held by the state police on the erroneous authority of a coroner's warrant for two days. During these two days, he made several confessions and reenacted the crime. The confessions and reenactment were subsequently found to have been illegally obtained and were ruled inadmissible by the United States Supreme Court in Darwin v. Connecticut, supra. The facts surrounding these confessions have been stipulated to by the parties for the purposes of this motion.

Customarily, a motion to suppress is used to prevent tangible evidence obtained by an illegal search and seizure from being used as evidence. State v. Mariano, 152 Conn. 85, 89-90, 203 A.2d 305. Questions concerning the admissibility of confessions are usually determined by the trial court, in the absence of the jury, during a trial on the merits. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618; State v. Darwin, 155 Conn. 124, 161, 230 A.2d 573; State v. McCarthy, 133 Conn. 171, 177, 49 A.2d 594. Therefore, prior to ruling on this motion, it is essential for the court to dispose of the jurisdictional question raised by the use of such a motion with regard to a confession or admission alleged to have been illegally obtained.

Before the enactment of § 54-33f of the General Statutes, a motion to suppress did not exist under our practice. State v. Mariano, supra, 152 Conn. 89, 203 A.2d 305. As a result of the enactment of this statute in 1963, a person aggrieved by a search and seizure can now make a motion for the return of property and the suppression of its use as evidence, if the property was seized without a proper search warrant or the search warrant was illegally executed. Section 54-33f, as drawn, makes no explicit reference to oral statements or to confessions or admissions. Since, however, it is an almost verbatim adoption of Rule 41(e) of the Federal Rules of Criminal Procedure, the decisions of the federal courts may be looked to for precedents as to its application to confessions or admissions. In Smith v. Katzenbach, 122 U.S.App.D.C. 113, 351 F.2d 810, 815, the United States Court of Appeals for the District of Columbia expressly stated that motions to suppress applied to confessions procured in violation of the fifth amendment as well as to tangible property seized in violation of the fourth amendment. The court pointed out that this conclusion could be based not only on a broad interpretation of Rule 14(e) but also on the application of general equitable principles. To the same effect, see Austin v. United States, 4 Cir., 297 F.2d 356. A similar conclusion was reached on statutory grounds by our own Circuit Court in State v. Penna, 5 Conn.Cir. 44, 241 A.2d 385, and on nonstatutory grounds by our Supreme Court in State v. Mariano, supra. Furthermore, in the present case, both the state and the defendant have stipulated to the instant proceeding, thereby waiving any procedural defects which may have have otherwise existed. Consequently, there is no impediment to this court's deciding the defendant's motion on its merits.

The defendant in his motion to suppress claims that the admission of his aforementioned statements to the sheriff would constitute a violation of his rights under the fifth and sixth amendments to the constitution of the United States because (1) they were involuntary, (2) they were the product of earlier illegal confessions, and (3) they were made in the absence of his counsel without a knowing and voluntary waiver of his right to have his counsel present.

The file and evidence offered by the state at the hearing on the motion showed that the defendant had been served with a bench warrant on December 8, 1963, a Sunday. At two o'clock in the afternoon of that day, he was brought to the office of the clerk of the Superior Court in the town of Rockville, where the assistant clerk read to him, verbatim, the applicable provisions of § 2 of Public Acts 1963, No. 126 (as amended, General Statutes § 54-43): '(The) assistant clerk shall thereupon advise such person that he has a right to retain counsel, that he has a right to refuse to make any statement, and that any statement he makes may be introduced in evidence against him . . ..' The defendant, who was accompanied at this point by three attorneys, thanked the assistant clerk and then held a private conference in another room with his counsel. At the completion of the conference, which was not hurried or interrupted in any way, the defendant was transported to the Tolland County jail. While he was at the jail, and prior to December 16, 1963, he was visited nearly daily by one or more of his attorneys and at least twice by his wife, who was accompanied each time by a minister. On December 16, 1963, the defendant requested and received permission to speak with Sheriff Paul Sweeney, who was in charge of the Tolland County jail. During this interview, which took place in the anteroom of the sheriff's office, some sixty feet away from the cellblock, the defendant questioned Sweeney concerning the reason why the defendant's attorneys could not be present at the pending grand jury hearing and about the competence of his counsel. Sweeney told the defendant to ask his attorneys concerning procedures before the grand jury. He also told the defendant that he knew the defendant's attorneys, that they were very competent, and that the defendant would be very well advised to follow their advice. At this point, the defendant allegedly volunteered the information that he had not yet told his attorneys that he had killed Hope Rothwell and that he had not yet made up his mind if he would do so. He further stated that he did not think he would ever tell them because of the shame it would bring to his wife and other members of his family, and that he would kill himself before he publicly admitted it. At this point, Sheriff Sweeney told the defendant that his statements relative to the girl should be told to the defendant's attorneys. The entire conversation lasted between five and ten minutes. Throughout it, the sheriff did not ask the defendant any question nor make any threats or promises to him nor in any other way attempt to solicit any information from him concerning the charge on which he was being held. The defendant's statements clearly were unsolicited, spontaneous and voluntary.

Our Supreme Court has directed, however, that prior to the admission of those statements the trial court should determine whether the defendant was aware that the warnings given to him by the assistant clerk applied to his conversation with the sheriff at the jail. State v. Darwin, 161 Conn. 413, 424, 288 A.2d 422. ¹ With this question in mine, this court requested counsel for the state and the defendant to present it with a stipulation of facts concerning the defendant's educational and personal background. That stipulation shows that the defendant received a trade school diploma from the New Bedford Vocational School in New Bedford Massachusetts, and a high school equivalency diploma from Hartford Public High School in Hartford, Connecticut. He also took several night courses at Hillyer College for a period of two years. At the time of his arrest, he was forty-five years of age and had been employed at the Pratt and Whitney Aircraft Division of United Aircraft Corporation for approximately twenty-three years. His annual income from his employment, at the time of his arrest, was fairly substantial. He obviously was a man of at least normal intelligence and understanding. Further, on December 11, 1963, just five days prior to his statements to the sheriff, the defendant refused to give more than his name to a psychiatrist employed by the state's attorney, explaining that he had been directed by his counsel not to talk about his case with the psychiatrist. Given this background, and the response of the defendant to the assistant clerk after she warned him of his rights, this court finds that the defendant knew, as any normal person should have known, that these warnings applied to his December 16, 1963, conversation with the sheriff at the jail. The testimony concerning the defendant's being nervous and upset at the time was clearly related to the unusual and unfamiliar circumstances he found himself in, and not to his mental capacity.

However, as pointed out in Darwin v. Connecticut, 391 U.S. 346, 351, 88 S.Ct. 1488, 1490, 20 L.Ed.2d 630 (opinion concurring in part and dissenting in part), 'when the prosecution seeks to use a confession uttered after an earlier one not found to be voluntary, it has . . . the burden of proving...