State v. Bennett

• Decision Date: 11 May 1976
• Citation: 368 A.2d 184,171 Conn. 47
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Douglas BENNETT.

Page 184

368 A.2d 184

171 Conn. 47

STATE of Connecticut v. Douglas BENNETT.

Supreme Court of Connecticut.

May 11, 1976.

James M. Merberg, Boston, Mass., of the Massachusetts bar, with whom was Aaron P. Slitt, Hartford, for appellant (defendant).

Bernard D. Gaffney, Asst. State's Atty., with whom, on the brief, was George D. Stoughton, State's Atty., for appellee (state).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, BARBER and MacDONALD, JJ.

MacDONALD, Senior Judge.

On a trial to a jury, the defendant was found guilty of one count of robbery in the second degree, in violation of § 53a-135 of the General Statutes, one count of kidnapping in the second degree, in violation of § 53a-94, one count of sexual contact in the first degree, in violation of § 53a-78(a)(1), one count of rape in the first degree, in violation of § 53a-72(a)(1), and two counts of deviate sexual intercourse in the first degree, in violation of § 53a-75(a)(1). On his appeal to this court, the defendant has raised six issues, having abandoned four of those originally contained in his preliminary statement of issues. The issues raised pertain to claimed errors in (1) admitting into evidence photographs taken of the defendant and certain statements made by him to a police officer; (2) the court's instructions to the jury with respect to the extent of corroboration required to prove the commission of the sex offenses charged; (3) instructions of the court with respect to unfavorable inferences to be drawn from failure of the defendant to call a purported alibi witness; (4) denial of the defendant's motion to read certain testimony of defense witnesses to the jury; (5) remarks to the jury by the court claimed to be coercive; and (6) denial of the defendant's motion for permission to present evidence of a polygraphic examination of the defendant made subsequent to the trial.

As background for the consideration of the claimed errors, it is necessary to present only a brief summary of the forcible robbery, abduction and sexual abuse of the victim which occurred during a one-hour period on the evening of February 14, 1974, in Wethersfield, and of the investigative procedure which eventually led to the arrest of the defendant. The defenses claimed having been mistaken identity and alibi, the basic facts involved in the crimes committed and proceding the trial are not in dispute and the preliminary statements contained in the briefs provide the following facts necessary for our discussion: On the evening in question, at about 7 o'clock, Miss M, ¹ who lived with her parents in a one-family residence in Wethersfield and who was alone in the house at the time, was confronted by a man carrying a handgun and wearing a stocking mask who forced his way into the house and said, 'Where is Howard? Howard owes me money.' After making an obscene remark about 'Howard' (the first name of Miss M's father) and taking Miss M's wallet containing $54, the man tied her hands behind her back, placed a strip of masking tape across her eyes, dragged her outside, disrobed her and sexually assaulted her. Thereafter, he was joined by another man who drove up in a car, and the two of them proceeded to force Miss M into the back seat of the car. During the next hour, the masked assailant removed his mask and, as the car was driven about, proceeded to rape and sexually abuse Miss M and to assist his companion to sexually abuse her. No purpose would be served by further describing the victim's of horror and abuse since the defendant does not claim that the acts charged against the assailant did not actually occur.

After her release, Miss M ran to her home and at about 9 p.m. John S. Karangekis, a detective of the Wethersfield police department, arrived there to investigate her complaint. He and, later, a physician examined physical evidence upon Miss M's body and clothing indicating that an attack actually had occurred, and Karangekis obtained from her a detailed account of what had happened, including a description of the assailant and of his verbal references to 'Howard.' With reference to the description of her assailant, Miss M stated that the masking tape covering her eyes had come loose and that she was able to see his face and various features as they were next to each other in the car at a time when it was stopped in a well-lighted area. Howard M, the victim's father, disclosed to Karangekis that the description of the assailant fitted that of Douglas Bennett, a man who had worked for his company during the previous two months and who, through an oversight, had not been paid and was owed $105, and, further, that Bennett owned a blue parka and hood similar to the one described by Miss M as having been worn by her assailant. About a week after the assault, Miss M went to state police headquarters where she put together a composite of a face which resembled her assailant, a photograph of which was eventually received into evidence during the trial.

On February 28, 1974, Karangekis went to Bennett's home in Granby, Massachusetts, accompanied by a Granby police officer, and, after identifying himself as a Connecticut police officer, advised Bennett that he was investigating a crime that had occurred in Connecticut and was there for the purpose of taking a look at him and ascertaining if he could answer some questions. He then asked Bennett: 'Do you know a Howard M_ _?' (using the victim's father's name) to which Bennett immediately replied: 'I certainly do. He still owes me some money.' Karangekis then asked if he could take pictures of Bennett, to which Bennett agreed after which Karangekis photographed Bennett with a Polaroid camera which he had brought with him. It is agreed by counsel that at no time during the interview or prior to the taking of the pictures was Bennett advised that he was a suspect or given the so-called Miranda warning; see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; and that at no time was he arrested, physically restrained or in custody.

I

It is claimed by the defendant that the trial court erred in admitting into evidence, over his objection, the photographs of the defendant taken at his home by Karangekis and the results of an out-of-court photographic identification on the ground that the photographs were illegally obtained in violation of the defendant's constitutional rights by reason of the fact that the pictures were taken without first advising him of his right to remain silent, his right to advice of counsel before answering questions, and the other caveats of the Miranda warning. Error also was claimed, on the same ground, in the admission into evidence of the defendant's answer to Karangekis' question as to whether he knew Howard M, it being claimed that the defendant, at the time this evidence was obtained, was suspected of having been involved in the crimes in question and therefore should have been informed of his constitutional rights. It is not claimed that the defendant was under arrest or any kind of physical restraint at the time of the interrogation, but only that he was a 'prime suspect.' The evidence showed clearly that the meeting took place in the living room of the defendant's own home in Granby, and that at no time was the officer's attitude toward him in any respect accusatory.

There is nothing in the record to indicate that the defendant's statement to Karangekis about Howard M and his consent to being photographed were other than purely voluntary, and the court in Miranda v. Arizona, supra, 478, 86 S.Ct. 1630, clearly qualified its opinion by pointing out that '(v)olunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by . . . (this decision).' It further clearly limits the application of the exclusionary rule therein stated to custodial interrogation and defines that term (p. 444, 86 S.Ct. p. 1612) as follows: 'Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'

In the absence of any claim that he was in custody or 'otherwise deprived of his freedom of action in any significant way,' the defendant apparently seeks to apply the Miranda rule because he was a suspect and became a 'prime suspect' during the interview. Perhaps he indeed became a 'prime suspect' after the interview and as a result of the victim's identification of the photographs at a later date, but until that later date it scarcely could be said that the investigation had even focused on him, but, even if it had, that fact alone would not have required the Miranda warning. 'It appears that in this case the questioning of the defendant was in the course of routine investigatory information-gathering, that the investigation had not focused on the defendant as an accused, and that the questioning was in no sense a custodial interrogation. We discussed a somewhat similar interrogation in State v. Szabo, 166 Conn. 289, 348 A.2d 588. There is no need to repeat the authorities cited in that case. They fully support the ruling of the trial court that in the circumstances of the present case the statements of the defendant were properly admitted despite the absence of a Miranda-type warning.' State v. Schaffer, Conn., 362 A.2d 893. Two recent decisions by the United States Court of Appeals for the Second Circuit further support our conclusion as to the correctness of the court's ruling. See United States ex rel. Sanney v. Montanye, 500 F.2d 411, 416 (2d Cir.); United...