State v. Copeland

• Decision Date: 01 September 1987
• Docket Number: No. 12828,12828
• Citation: 205 Conn. 201,530 A.2d 603
• Parties: STATE of Connecticut v. Jerry COPELAND.
• Court: Connecticut Supreme Court

Page 603

530 A.2d 603

205 Conn. 201

STATE of Connecticut v. Jerry COPELAND.

No. 12828.

Supreme Court of Connecticut.

Argued June 4, 1987.

Decided Sept. 1, 1987.

John S. Pinney, Sp. Public Defender, with whom, on brief, was Thomas E. Gaffey, Bloomfield, for appellant (defendant).

Christopher Malany, Deputy Asst. State's Atty., with whom, on brief, were Mary Galvin, Asst. State's Atty., and Mark Beubendorf and Alice Osedach, Legal Interns, for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and COVELLO, JJ.

CALLAHAN, Associate Justice.

The defendant was charged by substitute information with the crime of arson in the first degree in violation of General Statutes § 53a-111(a)(1). ¹ He pleaded not guilty and elected a trial to the court. He was found guilty, and sentenced to a term of imprisonment of ten years. On appeal, he claims that the trial court erred in denying (1) his motion to suppress a statement that he made while in custody, and (2) his motion to suppress clothing seized from him while he was in custody. We find no error.

At trial, the following uncontroverted factual circumstances were revealed. On the morning of March 4, 1984, Officer Frank Kilijanski of the New Haven police department was patrolling the Fair Haven section of New Haven. The officer testified that at approximately 2:30 a.m. he had seen a man, who was later identified as the defendant, walk up to an automobile stopped on Grand Avenue. The defendant commenced shouting at the woman who was driving, and grabbed at the door handle, trying unsuccessfully to pull open the car door. The defendant then walked away. Kilijanski spoke with the woman, who said she had never seen the defendant before, and that she was very "alarmed and upset." The officer radioed police headquarters to report a breach of the peace. At approximately 11:30 a.m. of the same day, another New Haven police officer observed the defendant in front of an apartment building on 88 James Street in New Haven. He had apparently been arguing with his girlfriend who lived in the basement apartment of the building and, when Kilijanski and other police officers arrived at the scene, the defendant became convinced that his girlfriend had reported him. At this point, Kilijanski arrested the defendant for breach of the peace. Thereafter he was released on a written promise to appear.

The next morning, Officer John Ross, also of the New Haven police department, was patrolling the Fair Haven section of New Haven. He testified that at approximately 2:30 a.m. he had seen the defendant walking up James Street from the direction of the apartment building where he had been arrested the previous day. Ross stated that he was certain it was the defendant because he had encountered him in the past. The defendant was the only person whom the officer observed on James Street.

Approximately two minutes after observing the defendant, Ross received a radio dispatch that there was a fire at an apartment building at 88 James Street. Ross arrived at the scene, inspected the damage and interviewed two witnesses, Thurman Newton, Jr., and David E. Parks, both tenants in the building. Newton told Ross that on the day before the fire, the defendant had appeared at Newton's apartment in a very aggravated state. He was apparently upset with both his friend, Faye Singletary, who was in Newton's apartment at the time, and her roommate, Harry Davis, who the defendant believed had taken his tape recorder. Newton explained that the defendant had pounded on his apartment door, threatened Singletary, and finally left, yelling that he would be back. Parks, who also lived with Singletary and Davis in the basement apartment of the building, informed Ross that the defendant had come back to the basement apartment in the early morning hours of March 5, 1984, the day of the fire. The defendant repeatedly called for Davis to come out and give him his tape recorder. Parks further told Ross that the defendant had yelled, "Old man, you will come out," and that seconds later, something struck the basement window and burst into flames. As a result of his discussion with the two witnesses, Ross drove to the area where he had seen the defendant earlier that morning. He went inside a convenience store located at Grand Avenue and James Street, where he saw the defendant duck behind a food rack. When Ross asked the defendant if he knew what had happened at 88 James Street, the defendant denied having been there, or anywhere near James Street. He then agreed to accompany Ross to the crime scene.

After Ross and the defendant arrived at the scene of the fire, both Newton and Parks positively identified the defendant as the man they had described to Ross. Ross placed the defendant under arrest for disorderly conduct and threatening, and informed him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Ross put the defendant in the back of his police cruiser, pending arrival of the prisoner conveyance van. Ross testified at trial that when he later removed the defendant from the car, he noted a strong smell of "flammable liquid" coming from the back seat where the defendant had been sitting. He stated that he had to roll down the windows in the cruiser to dissipate the "flammable liquid" fumes.

After the defendant had been transported to New Haven police headquarters, Ross spoke to John Esposito, a fire investigator with the New Haven fire department, who decided that the defendant's clothes should be seized "as evidence for a possible arson charge." Ross drove to the correctional institution on Whalley Avenue, picked up a change of clothing for the defendant, and then drove to police headquarters. Upon arriving, Ross went to the defendant's cellblock, handed the defendant the change of clothing he had obtained, and asked him for his clothes. The defendant responded: "Why do you want my clothes, they don't smell like gasoline?" The defendant then disrobed, and his jacket, pants and sneakers were placed in plastic bags. Subsequent laboratory testing of the clothing confirmed the presence of gasoline on them.

The next day, the defendant's briefcase was discovered in an alleyway near the apartment building where the fire had occurred. Officer Kilijanski, who had picked up the briefcase, testified that it had a "very strong" smell of gasoline. That same day, after again being advised of his Miranda rights, the defendant was interviewed by Esposito and Detective Vincent Fumiatti of the New Haven police department's arson squad. Both officers testified that the defendant's clothing, which had been returned as evidence in plastic bags, smelled of gasoline. The defendant agreed during the interview that his clothing had an odor of gasoline, but claimed that this was because he had been working on his sister's car. He did admit, however, that he had been at the James Street apartment building just before he had gone to the convenience store where Ross found him. ² The defendant was then arrested for and charged with arson.

Prior to trial, the defendant moved to suppress both the statement that he had made in his cellblock to Officer Ross concerning his clothes, and his clothes that were seized without a warrant while he was in custody. Both motions were denied by the trial court. After a trial to the court, the defendant was convicted of arson in the first degree. This appeal followed.

I

The defendant first argues that the statement made by him when his clothes were taken by Ross while he was at the New Haven police headquarters was improperly admitted at trial. He moved to suppress the statement on the ground that it was the product of a custodial interrogation without proper advisement and waiver of his rights pursuant to Miranda v. Arizona, supra. The trial court denied the motion, holding that the statement had been volunteered and thus that Miranda was inapplicable to the facts of this case. We agree with the trial court's conclusion.

We have consistently held that two conditions must exist before a criminal suspect is entitled to Miranda warnings: (1) the defendant must be in the custody of law enforcement officials; and (2) the defendant must be subjected to interrogation. State v. Burak, 201 Conn. 517, 531, 518 A.2d 639 (1986); State v. Doehrer, 200 Conn. 642, 646, 513 A.2d 58 (1986); State v. Brown, 199 Conn. 47, 51, 505 A.2d 1225 (1986). There is no dispute that the defendant was in custody. Thus, the only issue we must address is whether the defendant was subjected to interrogation when he made the statement in question.

In State v. Vitale, 197 Conn. 396, 411-12, 497 A.2d 956 (1985), we indicated that the term "interrogation" under Miranda refers both to express questioning and to any words or actions on the part of the police " 'that the police should know are reasonably likely to elicit an incriminating response from the suspect.' " Id., 411, 497 A.2d 956, quoting Rhode Island v. Innis, 446 U.S. 291, 301-302, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). A statement which is not elicited as a result of interrogation, but is given freely and voluntarily without any compelling influence, is admissible in evidence. State v. Burak, supra; State v. Vitale, supra, 197 Conn. at 412, 497 A.2d 956.

The defendant has the initial burden of proving interrogation. State v. Doehrer, supra, 200 Conn. at 647, 513 A.2d 58. The record in this case indicates that Ross merely asked the defendant for his clothing, while handing him a change of clothing. There is no evidence in the record that the officer asked the defendant any questions concerning the breach of the peace charge, the disorderly conduct charge, or the impending arson charge. Nor did the officer initiate any other conversation with the defendant. Cf. State v. Burak, supra; State v. Vitale, supra, 197 Conn. at 411-12, 497 A.2d 956. After Ross's request, the defendant blurted out the...