State v. Chung

• Citation: 202 Conn. 39,519 A.2d 1175
• Court: Supreme Court of Connecticut
• Decision Date: 13 January 1987
• Parties: STATE of Connecticut v. Chong CHUNG.

Page 1175

519 A.2d 1175

202 Conn. 39

STATE of Connecticut v. Chong CHUNG.

Supreme Court of Connecticut.

Argued Oct. 7, 1986.

Decided Jan. 13, 1987.

Michael R. Sheldon, with whom were Todd D. Fernow, Hartford, and, on brief, Steven G. Murphy, Michael A. Gailor, Mark W. Freel and Bruce A. Barket, Certified Legal Interns, for appellant (defendant).

Judith Rossi, Deputy Asst. State's Atty., with whom, on brief, were David Cohen, Asst. State's Atty., and James G. Clark, Deputy Asst. State's Atty., for appellee (state).

Before PETERS, C.J., HEALEY, SHEA, FREEDMAN and STOUGHTON, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant, Chong Chung, was convicted upon a conditional plea of nolo contendere ¹ to an indictment charging him with the crime of felony murder in violation of General Statutes § 53a-54c. ² The court sentenced the defendant to 30 years imprisonment. On appeal, the defendant claims that the trial court erred in denying his motion to suppress his statements made to the police on June 18, 1982. We find no error.

The evidence adduced before the court necessary to our disposition of the defendant's claim is as follows: On March 23, 1982, the police in Westport received a report from the victim's wife that the victim, the owner of a Westport restaurant, had not returned home from work as expected. When the Westport police went to the restaurant to investigate, they found the interior of the restaurant in disarray. Upon further investigation, the police discovered the body of the victim outside a side door. The victim's throat had been cut and he had been shot twice.

A subsequent examination of the restaurant revealed that a safe and cash register had been opened and money had been removed from both. Certain items were taken from the restaurant. The victim's wallet also was missing. Some of the missing items were later found in Fairfield in a dumpster. Fingerprints taken from the items recovered were identified as those of the defendant. On March 24, 1982, while the police were at the scene of the crime, the defendant called the restaurant, identified himself, and inquired about the condition of the victim. Later on the same day, he called the police station and made a similar inquiry. During this phone call, the defendant admitted that "around the time of the homicide," he had been at the restaurant.

On June 18, 1982, the Westport police were notified that the defendant had been apprehended in Toronto, Canada, where he was being held by the Toronto police. That day, two Westport police officers, Lieutenant Ronald Malone and Detective Donald Brown, flew to Toronto and were informed that the defendant was willing to speak to them. After the officers informed the defendant of his Miranda ³ rights, the defendant orally indicated that he understood those rights and signed a waiver form. The officers then conducted a ninety minute interrogation of the defendant. With the defendant's consent, the interrogation was tape recorded. Two tape recorders were set up on the table in the interrogation room, in full view of the defendant. He was informed that the two tape recorders had been set up, "in case one [did not] work." During the interrogation, the defendant admitted being in the restaurant on the night of the crime with his companion Jimmy. The defendant initially insisted, however, that four masked men had come into the restaurant to rob the victim and that it had been Jimmy who had shot the victim. After the officers indicated that they did not believe this rendition of events, the defendant changed his story. The defendant admitted that no masked men had come to the restaurant. He then confessed that he and his companion Jimmy had gone to the restaurant with the intent to rob the victim but stated that they had had no intention of killing him. The defendant indicated that both he and Jimmy had been armed. After detailing the events of the robbery, including his taking the victim's wallet, credit cards and cash, the defendant stated that it was Jimmy who had actually killed the victim.

The defendant filed a pretrial motion to suppress his confession. At the May 11, 1983 hearing on the motion, the defendant claimed that the state had failed to meet its burden of proving by a preponderance of the evidence that he had knowingly and intelligently waived his right to remain silent. At that hearing, Malone, Brown and the defendant testified. Additionally, the tape recordings made in Toronto were admitted as exhibits and played for the court. After the hearing, the trial court denied the defendant's motion to suppress. On May 12, 1983, the defendant entered a plea of nolo contendere to the charge of felony murder, reserving, under General Statutes § 54-94a, ⁴ the right to appeal the court's denial of his pretrial motion to suppress. The record reveals that neither the trial court nor the state objected to this procedure.

I

The threshold question on this appeal is whether the issue reserved for review by this court properly comes within the ambit of § 54-94a. General Statutes § 54-94a allows a defendant to enter a plea of nolo contendere conditional on the right to take an appeal from the trial court's denial of a motion to suppress evidence based on an unreasonable search and seizure or from the denial of a motion to dismiss. See, e.g., State v. Telesca, 199 Conn. 591, 508 A.2d 1367 (1986); State v. Madera, 198 Conn. 92, 503 A.2d 136 (1985); State v. Delmonaco, 194 Conn. 331, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). In this case, the defendant has reserved the question of whether his waiver of his right against self-incrimination had been voluntary, knowing and intelligent. The defendant argues that his confession should have been suppressed because it was a product of misconceptions by the defendant which were induced by the conduct of the police. Such a basis for a motion to suppress, implicating the fifth and fourteenth amendments, is not included within the statutory language allowing appeals from a motion to suppress evidence obtained from an illegal search or seizure in violation of the fourth amendment. See State v. Madera, supra, 198 Conn. at 99, 503 A.2d 136. Moreover, the legislative history of § 54-94a does not suggest that the statute could be used to challenge a denial of a motion to suppress evidence other than that obtained contrary to fourth amendment search and seizure principles. State v. Madera, supra, at 99 n. 7, 503 A.2d 136. The question reserved by the defendant does not fall within the scope of § 54-94a.

Notwithstanding the failure of the defendant's plea to conform to § 54-94a, both the defendant and the state urge this court to exercise our inherent supervisory authority over the administration of justice in order to review the defendant's claim. ⁵ See State v. Madera, supra at 99-100, 503 A.2d 136; State v. Cohane, 193 Conn. 474, 499, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984), citing United States v. Butler, 567 F.2d 885, 893 (9th Cir.1978). Although in State v. Madera, supra, 198 Conn. at 102, 503 A.2d 136, this court expressed reservations concerning the use of conditional plea procedures such as the one employed in this case, we conclude that in contrast to Madera, this case is an appropriate situation for this court to exercise its inherent supervisory authority over the administration of justice to review the issue preserved by the defendant. The admissibility of the defendant's confession is the sole question presented to this court and it properly can be reviewed on the record available. See Id. In addition, at the time of the defendant's plea, it was the clear understanding and expectation of the defendant, the prosecutor and the trial court that the court's ruling on the defendant's motion to suppress the confession would be appealable. Moreover, to force this defendant to go through an entire trial to preserve the right to appeal the pretrial ruling, under the facts of this case, would be a waste of judicial time and resources. We therefore will proceed to consider the merits of the defendant's appeal. ⁶

II

The defendant claims that the trial court erred in denying his motion to suppress because his confession was made without a voluntary, knowing and intelligent waiver of his right against self-incrimination. ⁷ Specifically, the defendant argues that he was laboring under "three fundamental misconceptions that prompted him to speak where he otherwise would not have done so." These misconceptions were: (1) that verbal statements were not the equivalent of formal written statements and could not be used against him in court; (2) that, "even though all [the] evidence pointed to him as the killer," if he had not shot the victim, he could avoid prosecution and punishment as a murderer; and (3) that if he did not talk to the police at the time they interviewed him in Toronto, he would not be able to give his side of the story later. The defendant maintains that the police not only were "fully aware" that the defendant was laboring under these misconceptions, but that the "officers reinforced [the defendant's misconceptions] and did everything they could to create an atmosphere in which the defendant could do nothing but offer an immediate confession." The defendant argues that his decision to speak to the officers resulted, not from an "essentially free and unconstrained choice," but from a misunderstanding of his rights as well as "compelling pressures exerted upon him which 'undermine[d] ... [his] ... will to resist and compel[led] him to speak where he would not otherwise [have] do[ne] so freely.' State v. Perry, [195 Conn. 505, 519-20, 488 A.2d 1256 (1985), quoting State v. Cydzik, 60 Wis.2d 683, 692, 211 N.W.2d 421 (1973) ]."

The state argues that only the first "misconception," which related to the defendant's waiver of his right to remain silent, was raised at the...