State v. Barrett

• Decision Date: 30 July 1985
• Citation: 495 A.2d 1044,197 Conn. 50
• Court: Connecticut Supreme Court
• Parties: , 54 USLW 2114 STATE of Connecticut v. William BARRETT.

Page 1044

495 A.2d 1044

197 Conn. 50, 54 USLW 2114

STATE of Connecticut v. William BARRETT.

Supreme Court of Connecticut.

Argued June 4, 1985.

Decided July 30, 1985.

Robert L. Genuario, Fairfield, for appellant (defendant).

Julia D. Dewey, Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Daniel A. Lyons, Jr., Asst. State's Atty., for the appellee (State).

Before PETERS, C.J., and HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

PETERS, Chief Justice.

The dispositive issue on this appeal is whether the trial court erred in refusing to suppress oral statements made by the defendant during the course of custodial interrogation. The defendant, William Barrett, was convicted, after a trial to the jury, of sexual assault in the first degree, in violation of General Statutes § 53a-70(a), unlawful restraint in the first degree, in violation of General Statutes § 53a-95(a), and possession of less than four ounces of a cannabis-type substance, in violation of General Statutes § 19-481(c). ¹ Upon entry of judgment, he was sentenced to a total effective term of imprisonment of nine to eighteen years. He appeals from this conviction.

The jury could reasonably have found the following facts. On the evening of October 23, 1980, the victim, a young woman of twenty, was waiting for a bus on a street corner in New Haven. The defendant, William Barrett, accompanied by another man, offered her a ride in his car. Since the victim recognized the defendant as a former neighbor and high school classmate whom she had known for eight years, she accepted his offer. Instead of driving to her sister's house as she had requested, however, the defendant drove to a secluded area in Wallingford, where the two men took turns sexually assaulting her. Upon returning to New Haven following the assault, the victim immediately contacted the police. She reported the details of the assault and identified the defendant as one of her assailants. He was taken into custody by New Haven police at approximately 11:30 p.m. that same night, and held until Wallingford police transported him to the Wallingford police station early the next morning.

During the trial, the defendant moved to suppress oral statements which he had made shortly after his arrival at the Wallingford police station on the ground that his fifth amendment right to counsel had been violated. Following a suppression hearing, the trial court denied the motion.

The defendant raises three issues on appeal. He claims that the trial court erred: (1) in denying the defendant's motion to suppress his oral statements made to the police during custodial interrogation; (2) in denying his motion to suppress summaries of the interrogation made by two nontestifying police officers; and (3) in refusing to permit cross-examination of the complainant concerning her prior sexual activity with the defendant. We find error on the defendant's first claim, and do not reach the other two claims. ²

The defendant claims that the oral statements he made to the Wallingford police should have been suppressed because he had invoked his right to counsel under the fifth and fourteenth amendments to the United States constitution. ³ He maintains that he effectively asserted this right when he expressly refused to give the police a written statement in the absence of counsel. The defendant at trial sought unsuccessfully to have the trial court suppress the testimony of a policeman describing the substance of his oral statements.

Established principles of law govern the permissible role of police during custodial interrogations. Smith v. Illinois, 469 U.S. ----, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, reh. denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Once a suspect has invoked his right to counsel, all questioning must cease and may not be resumed in the absence of counsel unless the accused both initiates the discussion; Edwards v. Arizona, supra, 451 U.S. 484-85, 101 S.Ct. 1884-85; and knowingly and intelligently waives the right to counsel which he had previously invoked. Smith v. Illinois, supra, 105 S.Ct. 493. Our resolution of the defendant's claim, therefore, requires a two-step inquiry. We must determine: (1) whether the defendant had in fact invoked his right to counsel; and (2) if so, whether he subsequently waived it.

In taking the first step of our inquiry, we must focus on the defendant's request for counsel itself and the circumstances leading up to this request. Smith v. Illinois, supra, 105 S.Ct. 494-95. The relevant evidence was provided by two police officers who testified at the suppression hearing. Their testimony revealed that, shortly after the defendant's arrival at the Wallingford police station, the police advised him of his Miranda rights, ⁴ and asked him if he would give a statement concerning the assault. The defendant immediately replied that he would not give a written statement without his attorney present, although he was willing to answer questions orally. Without further inquiry, the police proceeded to interrogate him in the absence of counsel and to elicit an incriminating statement from him.

An hour later, having discovered the malfunctioning of a tape recorder used without the defendant's knowledge during the first interrogation, the police conducted a second interrogation. They again advised the defendant of his Miranda rights, and he again stated that he would not give a written statement without an attorney, but would answer questions orally. At the end of this interrogation, a police officer asked the defendant if he would be willing to put the oral statement into writing, and he again refused to do so without an attorney. ⁵

The trial court, in ruling on the defendant's motion to suppress his oral statements, impliedly found that the defendant had requested counsel. ⁶ We agree. The record is clear that the defendant had requested counsel not once, but on at least three separate occasions. At no time did the police attempt to determine whether an attorney was coming or, indeed, even whether the defendant had succeeded in contacting one.

The record is also clear that the police understood this request for counsel. The two police officers who brought the defendant back to the interrogation room for the second questioning informed the detective commander that the defendant had refused to give a written statement without his attorney. Reports of the interrogations filed by three participating police officers and later introduced into evidence at the suppression hearing all note the defendant's request to have an attorney present before he put anything into writing. In addition, the defendant made several phone calls in the presence of police. ⁷ Although the police officers stated that they had no idea to whom the calls were made, one of them admitted that it was his "interpretation" that the defendant had contacted an attorney, and that the attorney was on the way to the station. If the police had been uncertain about the tenor of the defendant's request, they had a duty to clarify his intention rather than proceed to question him. State v. Acquin, 187 Conn. 647, 672-75, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983); see Smith v. Illinois, supra, 105 S.Ct. 493. ⁸ Instead, the record shows that the police made no attempt at clarification. They interrogated the defendant twice within a short period of time in the absence of counsel, and even actively attempted to change his mind about waiting for his attorney before he reduced his oral statements to writing. ⁹

The fact that the defendant attached his request for counsel to the making of a written statement does not affect the outcome of this first step of our inquiry. No particular form of words has ever been required to trigger an individual's fifth amendment protections; Miranda v. Arizona, supra, 384 U.S. 444-45, 86 S.Ct. 1612; nor have requests for counsel been narrowly construed. See Edwards v. Arizona, supra, 451 U.S. 479, 484-85, 101 S.Ct. 1884-85; Smith v. Illinois, supra, 105 S.Ct. 491-92. The defendant's refusal to give a written statement without his attorney present was a clear request for the assistance of counsel to protect his rights in his dealings with the police. Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 61 L.Ed.2d 197, reh. denied, 444 U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979). Such a request continues to be constitutionally effective despite the defendant's willingness to make oral statements. We conclude, therefore, that the defendant did invoke his right to counsel under the fifth and fourteenth amendments.

Having decided that the defendant's statement takes us past the first step of our inquiry, we now must take the second step: whether he subsequently waived the right he had invoked. Once an individual has requested counsel, the burden is on the state to establish that such a waiver has been made. Miranda v. Arizona, supra, 384 U.S. 475, 86 S.Ct. 1628; State v. Acquin, supra, 187 Conn. 677, 448 A.2d 163. The state must prove that the waiver was not only voluntary, but also constituted a "knowing and intelligent relinquishment or abandonment of a known right or privilege." Edwards v. Arizona, supra, 451 U.S. 482, 101 S.Ct. 1883. This burden cannot be met "by showing only that [an accused] responded to further police-initiated custodial interrogation, even if he has been advised of his rights." Id., 484, 101 S.Ct. 1884; Smith v. Illinois, supra, 105 S.Ct. 495.

Because the right to have counsel present during a custodial interrogation is crucial to safeguarding the fifth amendment privilege against self-incrimination; Fare v. Michael C., supra, 442 U.S. 719, 99 S.Ct. 2568; Miranda v. Arizona, supra, 384 U.S. 469, 86 S.Ct. 1625; the Supreme Court...