State v. Barrett, 12018

Citation205 Conn. 437,534 A.2d 219
Decision Date08 December 1987
Docket NumberNo. 12018,12018
CourtSupreme Court of Connecticut
PartiesSTATE of Connecticut v. William BARRETT.

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

James G. Clark, Asst. State's Atty., with whom were Julia DiCocco Dewey, Asst. State's Atty., and, on brief, Alice Osedach, Legal Intern, for appellee (state).


PETERS, Chief Justice.

The principal issue in this appeal is whether incriminating oral statements that the defendant made to the police during a custodial interrogation should have been suppressed by virtue of the right to counsel guaranteed by article first, § 8, of the Connecticut constitution. In our original decision in this case, we concluded that the statements were inadmissible under the fifth and fourteenth amendments to the United States constitution. State v. Barrett, 197 Conn. 50, 495 A.2d 1044 (1985). We declined to consider what state constitutional rights the defendant might have had because he had raised no such claim either in the trial court or before us. Id., at 54 n. 3, 495 A.2d 1044. The United States Supreme Court concluded that we had misinterpreted the applicable precedents and held that the statements were admissible as a matter of federal constitutional law. Accordingly, it reversed our judgment and remanded the case for further proceedings not inconsistent with its opinion. Connecticut v. Barrett, 479 U.S. ----, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987). We now conclude that the trial court correctly admitted the defendant's oral statements into evidence. There is therefore no error in the defendant's conviction.

The defendant, William Barrett, was convicted, after a jury trial, 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 (Rev. to 1979) § 19-481(c). The underlying facts are fully recounted in our earlier opinion. For present purposes, we note that the jury could reasonably have found that the defendant and another man sexually assaulted the victim after she had accepted an offer by the defendant to drive her to her sister's home. The victim's prompt report of the crime led the New Haven police to take the defendant into custody. The defendant was thereafter transferred to the Wallingford police for questioning.

The facts of the defendant's custodial interrogation are not disputed. After being advised by the Wallingford police of his constitutional rights, the defendant signed and dated an acknowledgment that he had received the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When he was then asked to give a statement concerning the assault, "[t]he 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." State v. Barrett, supra, 197 Conn. at 55, 495 A.2d 1044. After discovering that a tape recorder used to preserve the oral statements had malfunctioned, the police interrogated the defendant for a second time. After being again advised of his Miranda rights by the police, the defendant reiterated his wish to have his lawyer present before giving a written statement, but again stated that he was willing to discuss the matter orally. When the interrogation ended, a police officer made a final request to have the defendant put his oral statements into writing, but he again refused to do so without an attorney.

The trial court ruled that the incriminating oral statements were admissible because the defendant had freely and intelligently waived his rights both to remain silent and to have counsel present. In so ruling, the trial court concluded that the defendant had been repeatedly informed of his rights, had understood them, had signed a standard waiver form, and had agreed to speak with the police. The trial court found that the defendant's request for counsel before giving a written statement was evidence that he in fact understood his rights.

In the original appeal, we interpreted federal constitutional law to mandate a two step inquiry to determine whether the defendant's oral statements were admissible. Smith v. Illinois, 469 U.S. 91, 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). "We must determine: (1) whether the defendant had in fact invoked his right to counsel; and (2) if so, whether he subsequently waived it." State v. Barrett, supra, 197 Conn. at 54, 495 A.2d 1044. We held that the defendant had, in effect, invoked his right to counsel and that his continuous interrogation by the police precluded a finding of waiver. Id. at 57-58, 495 A.2d 1044. Accordingly, because his incriminatory statements should have been suppressed, we ordered a new trial.

In reversing this judgment and remanding the case to us, the United States Supreme Court in Connecticut v. Barrett, supra, 107 S.Ct. at 832-33, determined that federal constitutional law permitted a distinction between the defendant's willingness to make uncounseled oral statements and his disinclination to make a written statement in the absence of his attorney. While acknowledging that, in light of the defendant's objection, a written statement obtained from the defendant would not have been admissible unless it met the strict waiver standards of Edwards v. Arizona, supra, the court concluded that no federal constitutional objective would be served by suppressing the oral statements in this case. "Miranda gives the defendant a right to choose between speech and silence, and Barrett chose to speak." Connecticut v. Barrett, supra, at 832. Further, the court saw no need for liberal construction of the defendant's request for counsel. Because the defendant's request, in its clear and plain meaning, was aimed solely at obtaining counsel prior to giving a written statement, the court held that a broad reading would "disregard the ordinary meaning" of the request. Id. The court rejected the argument that it should undertake a more expansive interpretation of the defendant's verbally precise request in light of the defendant's apparent failure fully to understand the constitutional implications of his effort to distinguish between oral and written statements. Instead, the court relied upon the unchallenged findings of the trial court to conclude that the defendant had fully understood his right to remain silent and his right to counsel. Id., at 832-33.

On remand, the defendant claims that the trial court erred in denying his motion to suppress because: (1) his state constitutional right to consult with an attorney during custodial interrogation was violated; (2) the police did not obtain a knowing and intelligent waiver of his right to remain silent; (3) his oral statements were given involuntarily; and (4) the state violated a specific court order in not disclosing all written summaries of his oral statements on a timely basis. We find no error.


Before we address the merits of the defendant's state constitutional claim, we must first resolve the preliminary issue whether such a claim is reviewable at this stage in the proceedings. As the state properly concedes, this court has the inherent authority to interpret the state constitution in the context of specific cases. "We clearly have the power to construe the Connecticut constitution in accordance with our particular analysis of the specific right at issue." State v. Kimbro, 197 Conn, 219, 234, 496 A.2d 498 (1985); see also State v. Jarzbek, 204 Conn. 683, 707-708, 529 A.2d 1245 (1987); State v. Scully, 195 Conn. 668, 674 n. 11, 490 A.2d 984 (1985); State v. Couture, 194 Conn. 530, 564, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985); State v. Cohane, 193 Conn. 474, 498-99 n.19, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984); Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984); Griswold Inn, Inc. v. State, 183 Conn. 552, 559 n.3, 441 A.2d 16 (1981); Fasulo v. Arafeh, 173 Conn. 473, 475, 378 A.2d 553 (1977); Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359 (1977). The state nonetheless urges us to decline review for prudential reasons. Because of the defendant's acknowledged failure to raise a state constitutional claim until the present remand from the United States Supreme Court; State v. Barrett, supra, 197 Conn. at 54 n. 3, 495 A.2d 1044; the state asserts that it "would be a travesty if this Court were to emasculate" established rules of appellate procedure by reviewing the state constitutional claim at this stage. We nonetheless conclude that review is appropriate in this case.

The basic rule governing the scope of appellate review is contained in Practice Book § 4185, which states that the Supreme Court "shall not be bound to consider a claim unless it was distinctly raised at trial or arose subsequent to the trial." The phrase "shall not be bound" implies that this court may, if it wishes, address an issue not properly preserved at trial. Mickel v. New England Coal & Coke Co., 132 Conn. 671, 674, 47 A.2d 187 (1946). The rule embodied in § 4185 "serves the salutary purpose of alerting the trial court to possible errors while there is still opportunity to correct them." State v. Simms, 170 Conn. 206, 212, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S.Ct. 1732, 48 L.Ed.2d 199 (1976); see also State v. Hinckley, 198 Conn. 77, 81, 502 A.2d 388 (1985). We have therefore often declined on...

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