State v. Anonymous

• Decision Date: 06 May 1997
• Docket Number: No. 15568,15568
• Citation: State v. Anonymous, 240 Conn. 708, 694 A.2d 766 (Conn. 1997)
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. ANONYMOUS

Page 766

694 A.2d 766

240 Conn. 708

STATE of Connecticut v.ANONYMOUS

No. 15568.

Supreme Court of Connecticut.

Argued Jan. 17, 1997.

Decided May 6, 1997.

Jack W. Fischer, Assistant State's Attorney, with whom were Russell Zentner, Assistant States's Attorney, and, on the brief, John T. Redway, State's Attorney, for appellant(State).

Edward J. Peters, Jr., Portland, with whom was Terrence J. Milardo, East Haddam, for appellee(defendant).

Before BORDEN, NORCOTT, KATZ, PALMER and McDONALD, JJ.

OPINION

NORCOTT, Associate Justice.

The principal issue in this appeal is whether the defendant invoked his right to counsel under the fifth amendment to the federal constitution when he asked the police during custodial interrogation: "Do I still have a right to an attorney?"The defendant was charged with arson in the first degree in violation of General Statutes § 53a-111 (a)(4), ¹ burglary in the third degree in violation of General Statutes § 53a-103, ² criminal mischief in the first degree in violation of General Statutes § 53a-115 (a)(1), ³ criminal trespass in the third degree in violation of General Statutes § 53a-109, ⁴ and conspiracy to commit all of the foregoing crimes in violation of General Statutes § 53a-48.⁵The state appeals, with permission of the trial court, Miano, J., from the judgment of the trial court, Miano, J., dismissing the information following the granting by the trial court, Walsh, J., of the defendant's motion to suppress certain incriminating statements that he made to the state police during the evening of August 25 and the early morning of August 26, 1994.We conclude that the defendant did not invoke his right to the assistance of counsel before making the statements in question and, accordingly, we reverse the judgment of the trial court.

The record discloses the following facts.Between June 4, 1992, and August 18, 1994, a series of acts of vandalism occurred in and around the towns of Haddam and Killingworth, including: (1) the breaking of a public phone receiver and a plate glass window at the Haddam-Killingworth High School by the use of an aluminum baseball bat; (2) the destruction of a wooden street sign by arson; (3) the destruction of a motor vehicle by a "molotov cocktail"; and (4) the total or partial destruction of several school buses on the premises of the Haddam-Killingworth High School by arson.At 3:41 p.m. on August 25, 1994, State Police DetectivesReinaldo Ortiz and James Thomas and Sergeant Scott Martin arrived at the defendant's home with a warrant for his arrest and a search and seizure warrant for his residence.At the time, the defendant was an eighteen year old high school graduate who planned to enter college in the fall.The defendant greeted the police at the door and identified himself as the person for whom they were looking.

The police handcuffed the defendant and took him into custody.At the same time, the police informed the defendant of his Miranda ⁶ rights.When the police asked the defendant whether he understood his rights, he responded in the affirmative.The defendant seemed coherent and did not appear to be under the influence of drugs or alcohol.After having received the Miranda warnings, however, the defendant claimed that he was feeling dizzy and sick.The police removed the handcuffs, allowed the defendant to sit on the front steps of his house, and asked him if he needed medical attention.The defendant declined medical treatment and collected himself after a few minutes.At 3:53 p.m., the police replaced the handcuffs on the defendant and seated him in a police cruiser, where Thomas again apprised him of his Miranda rights.After receiving his rights for the second time, the defendant stated clearly that he understood the warnings.

At approximately 4:20 p.m., the defendant arrived at the police station.He was taken to a detective's room on the second floor where he was read his Miranda rights for the third time.At this time, the defendant read from a form listing the Miranda rights and signed a notice of rights and waiver section at the bottom of the form after the police had removed his handcuffs.

In response to questioning by Ortiz and Thomas, the defendant described his involvement, along with that of several friends, in a series of acts of vandalism that they referred to as "breaking."Specifically, the defendant admitted his involvement in stealing and destroying street signs, smashing mailboxes, breaking a plate glass window at the Haddam-Killingworth High School, locking the gates to the high school bus yard, destroying a public pay phone receiver, and burning a motor vehicle.During the initial stages of this interrogation, the defendant denied any involvement in the burning of the school buses at the Haddam-Killingworth High School.He claimed that he had been at his girlfriend's house at the time of the incident, but had read about it in a local newspaper.

At 6:40 p.m., the detectives interrupted the interview for a break and took the defendant to a first floor room for processing.Thereafter, the police placed the defendant in a cell, and, when he said that he was hungry Thomas brought the defendant food and drink.At approximately 8:25 p.m., after the defendant had eaten, he was returned to the interview room and advised of his Miranda rights for the fourth time.The defendant again acknowledged that he understood these rights and signed another waiver form.When the defendant stated that he was cold, Thomas gave him one of his shirts to wear.The interrogation continued and the defendant denied any involvement in the bus fires despite being confronted with incriminating handwritten notes the police had seized from his house pursuant to the search warrant.⁷

Between 8:25 p.m. and 10:15 p.m., the defendant's father arrived at the police station.Ortiz informed the defendant of his father's arrival, but the defendant indicated that he did not want to speak to his father because the defendant was ashamed of what he had done.The defendant's father told Ortiz that he did not think that the defendant had waived his right to an attorney, and that he wanted to speak to the defendant in order to get an attorney for the defendant if he wanted one.Ortiz told the defendant's father that the defendant had waived his right to an attorney, and that the defendant would call him at home when they were finished.

At approximately 10:15 p.m., after Ortiz had left the interview room to speak to the defendant's father, Sergeant Martin, who had just returned from executing the search warrant at the defendant's residence, entered the room.Martin showed the defendant some of the evidence that had been seized from his residence, including a pair of boots that had been sniffed by a trained police detection dog who had made a positive response.Martin told the defendant that the boots would be sent to the forensic lab for testing.The defendant asked a few questions about the testing and then dropped his head and stated: "Okay, okay, enough."

With respect to the events that occurred after 10:15 p.m., the trial court made the following findings of fact: "(1) Up until approximately 10:15 p.m., the defendant was fully aware of his rights, and knowingly and willingly waived those rights.(2) At approximately 10:15 p.m., the defendant inquired as to whether or not he still had the right to an attorney.(3) The investigating officers responded to this statement by holding up the waiver of rights form that the defendant had previously signed, and shoving the telephone on the table towards the defendant without further aid or assistance or questions.(4) No phone book was offered by the officers; no offer was made to get a phone book; no inquiry was made as to whether or not the defendant knew an attorney; no assurance that the state would provide the defendant with an attorney if he so desired, and that all questioning would cease until [an] attorney arrived, was made; no offer to leave the room while the defendant used the phone was made; and no offer to inquire of the defendant's father--who the detectives knew was in the waiting room of the barracks--as to who to call was made....(5) None of the above was done, when in fact the officers were fully aware of the fact that the defendant did not know any attorneys....(6)The defendant pushed the phone that had been shoved at him away from him.(7) The investigating officers immediately began interrogating the defendant about the bus fire incident again....(8) Some two hours later, the defendant eventually confessed to his involvement in [the bus fires].(9) At no time prior thereto had the defendant admitted he was involved in the bus fire incident.Rather, up until this time, the defendant had vehemently denied any involvement in, or knowledge of the bus burning incident, other than what he had read in the newspapers.(10) The detectives never told the defendant that his father, who had been in the waiting room for almost two hours, wanted to speak to him about getting him an attorney.The detectives never told the defendant that his father was present at the barracks."

The defendant subsequently moved before trial to suppress the incriminating statements made after 10:15 p.m., claiming that the police improperly had continued their interrogation of him in violation of the federal constitution after he had requested the assistance of an attorney.The trial court, Walsh, J., granted the defendant's motion to suppress the incriminating statements.

In its memorandum of decision, the trial court first explained that it had reviewed the defendant's suppression motion exclusively under the federal constitution because "the defendant had failed to set forth any claim, accompanied by an independent analysis, under the Connecticut Constitution."⁸(Emphasis in original.)The court then stated that its decision to suppress the defendant's confession rested on the answers to two...