State v. Alfonso

• Decision Date: 09 April 1985
• Citation: 195 Conn. 624,490 A.2d 75
• Parties: STATE of Connecticut v. Luis ALFONSO.
• Court: Connecticut Supreme Court

Page 75

490 A.2d 75

195 Conn. 624

STATE of Connecticut v. Luis ALFONSO.

Supreme Court of Connecticut.

Argued Jan. 10, 1985.

Decided April 9, 1985.

Preston Tisdale, Asst. Public Defender, for appellant (defendant).

C. Robert Satti, Jr., Asst. State's Atty., with whom, on the brief, was Donald A. Browne, Bridgeport, for the appellee (State).

Before PETERS, C.J., and HEALEY, PARSKEY, SHEA and HADDEN, JJ.

PETERS, Chief Justice.

The principal issue on this appeal is whether the trial court erred in refusing to suppress incriminating statements made by the defendant in the course of custodial interrogation. The defendant, Luis Alfonso, was convicted, after a trial by jury, of the offenses of possession of cocaine in violation of General Statutes (Rev. to 1981) § 19-481(a) ¹ and possession of marijuana in violation of General Statutes (Rev. to 1981) § 19-481(c). ² He was sentenced to two concurrent sentences of one year, suspended after three months, and probation for two years. The defendant appeals from the judgment of conviction.

The defendant raises three issues on appeal. He claims that the trial court erred: (1) in denying his motion to suppress allegedly incriminating statements and subsequently denying his motion for a new trial; (2) in its charge to the jury; and (3) in denying his motion for acquittal. We find error in part, and remand the case with direction to render judgment of acquittal on the conviction for possession of marijuana.

The jury could reasonably have found the following facts. The defendant Luis Alfonso is a Spanish-speaking Cuban immigrant with sixteen years of schooling in Cuba, including three years of education in electrical engineering. At the time of his arrest, he was twenty-seven years old and had lived in the United States approximately two years. On February 20, 1982, six police officers went to the defendant's apartment in Bridgeport to execute a search and seizure warrant whose validity has not been challenged. When the officers arrived, the defendant and a visitor, Mario Arango, were at home; the defendant's two roommates were elsewhere. The officers' search led to the discovery of cocaine in the living room and marijuana in the kitchen. The defendant was immediately placed under arrest for possession of the drugs.

Upon his arrest, while still at his apartment, the defendant was read his Miranda rights in Spanish by Officer Jesus Llanos, a Spanish-speaking officer. In response to a question from Llanos, the defendant responded, in Spanish, that the cocaine was his, that it was for a party, and that Arango had nothing to do with it.

The defendant was then taken to a police station, where he was again informed by Llanos in Spanish of his Miranda rights. The defendant then read and signed a written waiver form in Spanish. Approximately an hour and a half later, the defendant was interrogated by Detective Robert Lundequist, with Llanos acting as interpreter. The defendant was calm throughout the questioning and was not under the influence of drugs or alcohol. Lundequist typed out a statement in English, which the defendant did not sign. ³ However, when Llanos showed the defendant a vial of cocaine taken from the apartment, the defendant admitted that it was his.

I

The defendant argues that the trial court erred in admitting his incriminatory statements into evidence because he had not knowingly and willingly waived his constitutional privilege against self-incrimination. Relying on the rule of Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), ⁴ he claims that he did not execute a knowing waiver of his right to counsel. ⁵ The evidence at trial demonstrated, according to the defendant, that he lacked the ability to understand the warnings given to him by the police.

In reviewing a trial court's determination of a knowing and voluntary waiver of Miranda rights, we examine the record to see whether the state has met its burden of proving waiver by a preponderance of the evidence. State v. Perry, 195 Conn. 505, 516 n. 8, 488 A.2d 1256 (1985); State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S.Ct. 1785, 76 L.Ed.2d 354 (1983). In this case, the relevant evidence was produced at a suppression hearing at which the only witnesses were Llanos and the defendant. ⁶

The state's evidence indicated that Llanos gave the defendant Miranda warnings in Spanish on three different occasions, and each time the defendant indicated his understanding of what he was being told. ⁷ Although Llanos offered conflicting testimony about whether the defendant, upon his arrest at his apartment, had asked any questions about what his rights were, Llanos testified without qualification that the defendant had never asked for an attorney. The defendant had inquired about his right to remain silent, but he had not pursued his right to counsel, and at one point had stated that he did not wish to retain counsel. The officers did not intimidate or physically abuse the defendant at any time.

The defendant contradicted this version of what had transpired in certain particulars. Although he acknowledged having read and signed the Miranda waiver form at the police station, he claimed that he had not been informed of his rights at his apartment. He denied having made either of the incriminatory statements attributed to him by Llanos. He also attacked the credibility of Llanos' testimony as being conflicting and contradictory.

The defendant virtually concedes that this evidentiary argument would not alone suffice to rebut the state's showing of an express waiver, manifested both by his signed waiver form and his willingness to answer questions while in custody. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); State v. Harris, supra, 188 Conn. at 580, 452 A.2d 634. Even where fact-finding implicates constitutional rights, and thus must be strictly scrutinized, questions of credibility are primarily within the province of the trier of fact. State v. Perry, supra, 195 Conn. at 516 n. 8, 488 A.2d 1256. ⁸

The crux of the defendant's claim is that, despite what he said and did, his waiver was not knowing and voluntary because he was culturally disabled from adequately understanding his legal rights. He maintains that, as a recent immigrant, he was not sufficiently alerted by standard Miranda warnings to the significance of his right to counsel and to remain silent. The questions he did ask about whether he had a right to remain silent should have alerted the police to stop their interrogation because they should have recognized that he was unable knowingly and willingly to waive constitutional rights that he could not comprehend. ⁹

We find the defendant's argument, in the circumstances of this case, unpersuasive. There was no linguistic barrier to a knowing and voluntary waiver, the defendant concededly having been addressed by the police at all times in his native tongue. The defendant was, furthermore, a well-educated adult, and he was not totally unfamiliar with our legal system, having been arrested at least once previously. Despite the defendant's foreign background, the trial court was entitled to conclude that the state had established a knowing and voluntary waiver of the defendant's constitutional rights.

II

The defendant's second claim of error is a two-pronged attack on the trial court's instructions to the jury. The defendant argues that the court erroneously failed to direct the jury to draw negative inferences from the state's failure to produce certain evidence and that it mischaracterized certain parts of the testimony of Officer Llanos.

In his request to charge, the defendant asked that the jury be instructed to draw negative inferences from the state's failure to call Llanos' Spanish-speaking partner, Ramos. Under the rule of Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), which we have held applicable to criminal cases; see State v. Williams, 195 Conn. 1, 14, 485 A.2d 570 (1985); to be entitled to such a charge the defendant must show both that Ramos was available and that she was a witness whom the state would naturally have produced. State v. Carrione, 188 Conn. 681, 686, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S.Ct. 1775, 76 L.Ed.2d 347 (1983).

Ramos did not play a major role in the defendant's arrest and interrogation. She was one of six officers who went to the defendant's apartment to execute the search warrant, but had no particular contact with the defendant himself at that time. Subsequently, at the police station, she helped to explain the Miranda warnings to the defendant. This limited participation is insufficient to support a presumption that Ramos was a witness whom the state would naturally have called to testify. " 'A possible witness whose testimony is for any reason comparatively unimportant, cumulative or inferior to what has been offered should be dispensed with on the general ground of expense and inconvenience, without anticipation that an inference may be invoked.' " State v. Carrione, supra, 188 Conn. 688, 453 A.2d 1137, citing State v. Brown, 169 Conn. 692, 705, 364 A.2d 186 (1975). In light of Llanos' extensive testimony, Ramos' testimony would have been cumulative and her absence did not entitle the defendant to a Secondino charge.

The defendant also requested a charge on the state's failure to produce fingerprint evidence. A jury may be instructed to draw a negative inference from "the failure of a party to produce [physical] evidence which it is within his power to produce." Turner v. Scanlon, 146 Conn. 149, 161, 148 A.2d 334 (1959); see McCormick, Evidence (2d Ed.1972, pocket part 1978) § 272. A necessary predicate for such an instruction was that the state had fingerprint evidence available to it. The defendant does not assert that the police actually had such evidence, and Llanos testified that he did not think...