State v. Cervantes

• Decision Date: 04 April 2017
• Docket Number: AC 37649
• Citation: 172 Conn.App. 74,158 A.3d 430
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Marcelo CERVANTES

172 Conn.App. 74

158 A.3d 430

STATE of Connecticut

v.Marcelo CERVANTES

AC 37649

Appellate Court of Connecticut.

Argued January 3, 2017

Officially released April 4, 2017

Manuel A. Suarez, assigned counsel, for the appellant (defendant).

Matthew R. Kalthoff, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, former state's attorney, and John P. Doyle, Jr., senior assistant state's attorney, for the appellee (state).

Sheldon, Mullins and Flynn, Js.

MULLINS, J.

Following a conditional plea of nolo contendere, entered pursuant to General Statutes § 54–94a,¹ the defendant, Marcelo Cervantes, appeals from the judgment of conviction of sexual assault in the first degree in violation of General Statutes § 53a–70(a)(1) and home invasion in violation of General Statutes § 53a–100aa(a)(1). The defendant entered his conditional plea following the court's denial of his motion to suppress certain oral statements that he made to members of the Hamden Police Department. He made the statements during, what he claims to have been, a custodial interrogation inside of a police vehicle, without the benefit of having been advised of his constitutional rights under Miranda v. Arizona , 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The state argued, and the trial court agreed, that the challenged statements should not be suppressed because, although the defendant, concededly, was interrogated in the vehicle by the police before he made such statements, he was not in custody at that time for purposes of Miranda . On appeal, the defendant claims that the court erred in denying his motion to suppress. We affirm the judgment of the trial court.

On August 12, 2014, before the defendant entered a conditional plea of nolo contendere, the state recited the following facts. On April 14, 2013, the Hamden Police Department received a 911 call reporting that a twenty-two year old female had been sexually assaulted. The caller, the victim in this case, stated that, at approximately, 2 a.m., she had awoken to find an unknown Hispanic male lying on top of her in her bed. The assailant removed her clothing, forced her to engage in penile-vaginal intercourse, oral intercourse, and attempted anal intercourse. Although the victim attempted to fight off the assailant, her resistance was met with strangulation, suffocation, and a punch to the face. The assault continued until approximately 4:15 a.m. At that time, the assailant left the premises after placing a sheet over the victim's head and telling her that if she told anyone of the assault, he would kill her. The victim sustained injuries to her neck and her face.

Subsequently, the police developed the defendant as a suspect and went to speak with him at his place of employment. After some initial conversation, the defendant was transported to the Hamden Police Department. During the police interview prior to arriving at the police department, the defendant admitted to some of the conduct that occurred at the victim's residence, although he described the encounter differently than did the victim.

The police informed the defendant of his constitutional rights in accordance with Miranda after they arrived at the police department, and the defendant signed a waiver of rights form. He then gave further statements about what had occurred on the night of April 14, 2013. Thereafter, the police arrested the defendant.

In a long form information, the state charged the defendant with two counts of sexual assault in the first degree, and one count of attempt to commit sexual assault in the first degree, home invasion, burglary in the first degree in violation of General Statutes § 53a–101(a)(1), and strangulation in the second degree in violation of General Statutes § 53a–64bb(a).

On May 31, 2013, the defendant filed a motion to suppress the oral statements he had made to detectives while in the police vehicle. That motion was heard on April 9 and 17, 2014. In a June 10, 2014 memorandum of decision, the court denied the defendant's motion. Subsequently, on August 12, 2014, the defendant entered a conditional plea of nolo contendere, and, per § 54–94a, the court made a finding that the denial of the suppression motion was dispositive of the case.² This appeal followed.

The defendant claims that the trial court improperly denied his motion to suppress statements he made to the police while in the police vehicle. He argues that he was in police custody the moment he entered the police vehicle and that the statements he made during this custodial interrogation should have been suppressed because the detectives failed to provide him with Miranda warnings. The state concedes that the defendant was interrogated by two detectives from the Hamden Police Department while in the police vehicle, but it argues that the defendant was not in custody for purposes of Miranda because he voluntarily spoke with the detectives, voluntarily entered the police vehicle, and voluntarily accompanied the detectives to the police station. We agree with the state.

Following the hearing on the motion to suppress, the court, in its memorandum of decision, set forth the following findings of fact, which are relevant to our analysis. "Detective Brian Stewart and Detective William C. Onofrio of the Hamden Police Department were assigned to investigate an alleged home invasion and sexual assault that had occurred on April 14, 2013 ... in Hamden. During the course of the investigation, police received descriptive information about the perpetrator's height, weight, and ethnicity. The alleged perpetrator was described as a five feet, six, to five feet, seven inches tall Hispanic male, with some sort of protruding belly or stomach. ... On or about May 16, 2013, Detective Onofrio received information related to the case from Robert Carrasco. Carrasco left a voice mail [message] on Onofrio's phone. The information from Carrasco was that an individual named Marcelino had been observed making sexual advances to an intoxicated female on the night of April 14, 2013, at a bar in Hamden, named Andales. Carrasco believed Marcelino to be a former employee of his business.³ Andales was located in close proximately to [the victim's residence]. Onofrio was the lead detective assigned to investigate the case. ... [On the basis of this and other] information received from Carrasco, Onofrio decided to travel to the Outback Steak House [Outback] located in Southington in an effort to determine the identity of ... Marcelino. ...

"The detectives traveled from Hamden to Southington in an unmarked police vehicle. It had no lights affixed to the roof, nor any markings describing it as a police vehicle. ... Onofrio operated the vehicle, and, when he arrived at Outback, he traveled through the parking lot and parked in the rear. The vehicle was not parked in a designated space. They arrived at approximately 5 p.m. Outback ... [is] located in a plaza with other businesses nearby, although [it] ha[s] its own parking lot. ... The police vehicle was parked approximately twenty-five feet away from some other vehicles parked in the lot. ... A back door, used by the managers, would allow access to the rear of [Outback] and [the] parking lot, and [it] was located near [a] dumpster. Six or seven [Outback] employees worked in the area immediately adjacent to the back door. The back door had a window, and an employee could look out of the window if standing in front of the door. ...

"Onofrio and Stewart exited the vehicle and walked to the front doors of [Outback]. ... Each wore plain clothes .... Either Onofrio or Stewart asked the hostess if the manager was available. Stewart observed an individual standing near the hostess who generally satisfied the description of the alleged perpetrator. Onofrio and Stewart stepped outside of [Outback] to await the manager. Eventually, manager Ryan Lucas came outside to meet them. They identified themselves as members of the Hamden Police Department. The detectives explained that they were interested in speaking with an individual named Marcelino. Lucas stated that he did not have an employee named Marcelino. Lucas next provided the detectives with the restaurant's employee roster, which did not contain the name Marcelino. Given his earlier observation, Stewart asked Lucas the identity of the Hispanic male that had been standing near the hostess. When told by Lucas that the individual's name was Marcelo, the detectives asked Lucas to inquire if Marcelo would be willing to speak with them.

"Lucas left Onofrio and Stewart outside and returned to the [Outback]. Shortly thereafter, Lucas proceeded through the front doors with [the defendant]. ... The detectives asked the defendant for permission to speak with him. The defendant agreed to speak with the detectives, and Lucas returned to the [Outback]. ... Onofrio, Stewart and the defendant began walking along the side of the building toward the rear of the building. Either Onofrio or Stewart told the defendant that they were investigating a crime but, at that point, did not provide the defendant with details. The defendant conversed with the detectives in English and indicated no difficulty with English comprehension. The defendant then was asked by detectives if he would be willing to speak to them in the police vehicle for privacy. The defendant agreed and was very cooperative. ... The parking lot was busy, and [the] detectives did not want to discuss sexual assault allegations in a public parking lot.⁴

"The defendant sat in the front seat of the vehicle. He was not physically placed into the vehicle by either detective. He was not directed to the vehicle by either detective pointing to it, nor was he physically led to the vehicle. The defendant used his own volitional movements to sit down in the front seat of the vehicle. He was not handcuffed. There is no evidence that any of the doors of the vehicle were locked. Onofrio then sat in the operator's seat, and...