State v. Birch, 13751

• Court: Supreme Court of Connecticut
• Writing for the Court: Before PETERS; CALLAHAN
• Citation: 594 A.2d 972,219 Conn. 743
• Parties: STATE of Connecticut v. Ralph BIRCH.
• Docket Number: No. 13751,13751
• Decision Date: 30 July 1991

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594 A.2d 972 219 Conn. 743 STATE of Connecticut
v.
Ralph BIRCH. No. 13751. Supreme Court of Connecticut. Argued June 5, 1991.
Decided July 30, 1991.

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John J. Davenport, with whom, on the brief, was Timothy C. Moynahan, Waterbury, for appellant (defendant).

Michael E. O'Hare, Deputy Asst. State's Atty., with whom, on the brief, were Frank Maco, State's Atty., and David Shepack, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and BORDEN, JJ.

[219 Conn. 744] CALLAHAN, Justice.

The defendant, Ralph Birch, was charged in a substitute information with the crime of felony murder in violation of General Statutes § 53a-54c. ¹ After a trial to a jury, he was found guilty of the crime charged and was sentenced to a term of imprisonment of fifty-five years. The felony murder charge arose out of the burglary of a house in New Milford committed on December 2, 1985. In the course of the burglary, Everett Carr, a sixty-five year old man living in the house, was stabbed to death. ²

On appeal, the defendant argues that his conviction should be vacated and a new trial ordered because the trial court incorrectly denied his motion to suppress his responses to police questioning and erroneously allowed those responses into evidence at his trial.

The relevant facts are undisputed. On December 5, 1985, the defendant was arrested and charged with larceny and burglary. The larceny charge pertained to the theft of a 1973 Buick that had been stolen in Brookfield on November 29, 1985, while

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the burglary charge [219 Conn. 745] concerned a crime unrelated to the burglary during which Carr was murdered. On December 6, 1985, the defendant was arraigned in the Superior Court, geographical area eighteen, on those charges. At his arraignment, the defendant applied for and was granted a public defender on the charges for which he was being arraigned. The defendant was then taken to the Litchfield community correctional center and held there in lieu of bond.

On December 9, 1985, police officers investigating Carr's death arrived at the correctional center to execute a search warrant authorizing the taking of blood and hair samples from the defendant. Those officers were accompanied by Detective Scott O'Mara and Sergeant John Mucherino of the Connecticut state police, who were also investigating Carr's death. After the blood and hair samples had been obtained from the defendant, O'Mara and Mucherino took the defendant to an interview room at the correctional center for questioning.

Before questioning the defendant, O'Mara advised him of his Miranda ³ rights by reading verbatim from a preprinted Connecticut state police form containing the required warnings. O'Mara then had the defendant read the form aloud and write his initials next to each section on the form to indicate that he had understood what he had read. When the defendant had finished reading the entire form, he placed his signature after the section of the form that stated that: "I am willing to answer questions and make statements knowing that I have these rights. I do not want a lawyer, I know and understand what I am doing. I do this freely and voluntarily. No threats or promises have been made [219 Conn. 746] to me." O'Mara then asked the defendant if he understood his rights and was willing to discuss the Carr case. The defendant replied affirmatively. O'Mara and Mucherino then interrogated the defendant concerning his possible involvement in Carr's death.

The defendant was subsequently arrested and charged with felony murder on January 25, 1989. At his felony murder trial, the defendant moved to suppress his responses to O'Mara's and Mucherino's inquiries because his responses were allegedly obtained in violation of both his federal and state constitutional rights to counsel. ⁴ The court denied the defendant's motion to suppress. ⁵

The defendant contends that his motion to suppress should have been granted by the trial court because his [219 Conn. 747] invocation of his sixth amendment right to counsel at his arraignment on the unrelated burglary and larceny charges constituted an invocation of his fifth and sixth amendment rights to counsel for all purposes while he remained continuously in custody. He claims, therefore, that the police were prohibited from initiating any discussion with him concerning not only the crimes for which he had

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been arrested and arraigned but also any other uncharged crimes.

When this case was argued, there existed a split of authority as to whether a defendant who requests the appointment of an attorney at his arraignment, thereby invoking his sixth amendment right to counsel, also invokes his fifth amendment right to counsel for subsequent custodial interrogations concerning other unrelated, uncharged crimes. Compare United States v. Roberts, 869 F.2d 70 (2d Cir.1989); People v. Bryant, 202 Ill.App.3d 290, 147 Ill.Dec. 590, 559 N.E.2d 930 (1990); People v. Crusoe, 433 Mich. 666, 449 N.W.2d 641 (1989); State v. Sparklin, 296 Or. 85, 672 P.2d 1182 (1983); State v. Stewart, 113 Wash.2d 462, 780 P.2d 844 (1989), cert. denied, --- U.S. ----, 110 S.Ct. 1327, 108 L.Ed.2d 502 (1990); with United States v. Wolf, 879 F.2d 1320 (6th Cir.1989); United States ex rel. Espinoza v. Fairman, 813 F.2d 117 (7th Cir.), cert. denied, 483 U.S. 1010, 107 S.Ct. 3240, 97 L.Ed.2d 745 (1987); People v. Perry, 205 Ill.App.3d 655, 151 Ill.Dec. 38, 563 N.E.2d 1144 (1990), appeal granted, 136 Ill.2d 551, 153 Ill.Dec. 381, 567 N.E.2d 339 (1991). Subsequently in McNeil v. Wisconsin, --- U.S. ----, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), on indistinguishable facts, the United States Supreme Court resolved that disagreement when it held that the sixth amendment right to counsel is "offense-specific."

In McNeil, the court noted that in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), it had held that once the sixth amendment right [219 Conn. 748] to counsel had attached and been invoked, any subsequent waiver of that right during police-initiated custodial interrogation would be ineffective. McNeil v. Wisconsin, supra, 111 S.Ct. at 2207. The court noted further, however, that the sixth amendment...