State v. Carter

• Decision Date: 05 April 1983
• Citation: 458 A.2d 379,189 Conn. 631
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Nathaniel J. CARTER.

Page 379

458 A.2d 379

189 Conn. 631

STATE of Connecticut v. Nathaniel J. CARTER.

Supreme Court of Connecticut.

Argued Jan. 12, 1983.

Decided April 5, 1983.

Eugene J. Riccio, Asst. Public Defender, for appellant (defendant).

Jonathan C. Benedict, Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, SHEA and GRILLO, JJ.

SHEA, Associate Justice.

The defendant in this case was also the defendant in State v. Carter, 189 Conn. 611, 458 A.2d 369 (1983) (Carter I ), where we set aside his conviction on a count of burglary in the first degree and remanded for further proceedings, but affirmed his conviction of sexual assault in the first degree in violation of General Statutes § 53a-70(a). About one month after the trial of Carter I, the defendant was tried before a jury on a separate information and was found guilty of burglary in the second degree, General Statutes § 53a-102(a), and of sexual assault in the first degree, General Statutes § 53a-70(a), based upon an incident which occurred on April 23, 1979, about three weeks prior to the date of the Carter I offenses. In his appeal from the judgment, the defendant has raised some issues involving the lawfulness of the action of the police in stopping and detaining him. We have discussed these claims fully and resolved them against him in Carter I. Additionally he assigns error (1) in the admission of a confession, which followed the two confessions referred to in Carter I, and which is claimed to have been involuntary; (2) in allowing the use of an earlier confession to an unrelated crime to impeach him; (3) in permitting his prior convictions for similar crimes, including those in Carter I, to be used for impeachment; (4) in charging the jury upon some provisions of § 53a-70(a) which were not within the scope of the offense as alleged in the information; and (5) in failing to give a requested instruction upon the effect of a prior inconsistent statement. We find error only in the use of the sexual assault conviction in Carter I for the purpose of impeachment.

The complainant was a widow seventy-seven years old who had recently returned to her home in Greenwich after a period of hospitalization for surgery. She testified that she had been asleep in her upstairs bedroom until some time after midnight when someone bounced on the bed and clamped a hand over her face, saying "Don't scream or I'll kill you." Her assailant then grabbed her throat and repeated this threat. He proceeded to rape the complainant. After the assault she discovered that her face was bleeding. There was no illumination in the bedroom and the assailant kept his face covered with a towel. The complainant could describe her assailant only as a black male about twenty-five or twenty-six years old and about five feet ten or eleven inches in height with "short hair brushed up" and a "very nice voice." The defendant was identified as the perpetrator of the offense only by the admission of his confession into evidence.

In Carter I we detailed the circumstances which led the police to accost the defendant as he was riding his bicycle on River Road, Greenwich, at about 3:10 a.m. on May 31, 1979, and to hold him for a brief period of time as a suspect in connection with a very recent burglary of a residence in the vicinity. We found no illegality in that detention or in his arrest for that burglary, which was made after the tread of the sneakers worn by the defendant was found by the police to match a footprint discovered within the residence. Accordingly, we rejected the defendant's claim that his confessions to three separate crimes made subsequent to his arrest were the product of an unlawful seizure of his person and should be suppressed on that ground. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). As the defendant concedes, the disposition of Carter I has removed that basis for claiming that either of the two confessions used against him at the trial in the present case was improperly admitted.

I

The defendant claims involuntariness as an additional ground for excluding his confession to the crimes of April 23, 1979, for which he has been convicted in this case. In Carter I we examined a similar claim which was made with respect to his confession to the offenses of May 16, 1979, for which he was convicted in that case. We concluded that the evidence adequately supported the finding of the trial court that the defendant had knowingly and voluntarily waived his constitutional right against self-incrimination. In reviewing the circumstances leading to that confession we described how the defendant, after being warned of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and being interrogated for less than one hour, confessed, at about 5:30 a.m., to the burglary of a house on Cary Road, Greenwich, on May 31, 1979, for which he had been arrested initially. After that confession, which included a detailed acknowledgement of the Miranda warning, had been executed, the questioning of the defendant by two Greenwich police officers continued for approximately three hours. At about 8:45 a.m. the defendant confessed to the burglary and sexual assault of May 16, 1979, and executed a second written confession, which contained a similar Miranda warning form.

We resume our narrative of the circumstances of the interrogation of the defendant by Officers Roland H. Hennessey and Theodore J. Brosko in a room at the Greenwich police station at the point where the defendant had finished signing the second confession, which Brosko had begun to type at 8:45 a.m. The defendant wrote a note on his confession stating that he had voluntarily turned himself in to the police and that he needed "help from someone." ¹ He had previously mentioned that "he needed help because he kept doing this" and, after giving the second confession, he said that he must have been sick to have committed such a crime. In response, Hennessey promised to speak to a judge and a prosecutor in order to obtain some kind of psychological assistance for the defendant. Later that day, after the interrogation had ended, Hennessey did fulfill his promise to attempt to obtain such aid.

After completion of the second confession the officers began to question the defendant about a burglary--rape incident which had occurred in Greenwich on April 23, 1979, which was similar in many respects to the May 31, 1979 occurrence described in the second confession. At 11:30 a.m., after about two and one half hours had elapsed, Brosko began to type a third confession of the defendant in which he admitted his involvement in the crimes of April 23, 1979, with which he was charged in this case. This confession also contained the standard Miranda warning, each paragraph of which the defendant initialed after reading it aloud. The defendant executed this confession with the same formalities observed for his two earlier confessions. At some time between the second and third confessions, coffee, milk and sandwiches were brought into the room and the defendant ate something. He appeared sleepy and tired at a point near the end of the interrogation, but never requested that the questioning be terminated. He spoke intelligibly, did not appear to be under the influence of alcohol or drugs, and did not mention his injured leg until after the confessions had been completed. At one point during the interview he said he was chilly, but he made no other complaints concerning his physical or mental condition.

In reaching our conclusion in Carter I that there was no infirmity in obtaining the first and second confessions of the defendant, we rejected his claims of coercion based upon the duration and circumstances of the interrogation, impairment of his mental condition resulting from drugs and alcohol, pain and fatigue affecting his physical condition, and inducement arising from a promise of psychiatric treatment which we concluded was not made until after the second confession. The same grounds are relied upon in attacking his third confession, but in the context of two additional circumstances which did not confront us in Carter I: (1) the continued two and one half hours of interrogation which transpired between the second and third confessions, and (2) the promise of an attempt to secure "help" for the defendant which unquestionably was made before the third confession. Except for these additional circumstances our discussion in Carter I of the admissibility of the second confession is also applicable to the third confession.

The defendant had been under detention about eight hours before giving his third confession, of which about seven hours were devoted to conversing with Hennessy and Brosko and to typing his first two statements. This period, though substantial in duration, does not remotely approach the length of those interrogations held to be so objectionable on that ground among others as to warrant reversal of a finding by a trial court that a confession was voluntary. See Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967) (thirty-eight hours questioning); Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968) (thirty to forty-eight hours); Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966) (sixteen days); Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961) (five days); Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961) (four days). The fact that the police were inquiring about three separate incidents affords an explanation of the duration of the entire period of questioning. The interrogation concerning no one of the crimes exceeded three hours. The trier could reasonably have credited the testimony of the...