State v. Cushard, 36680.

• Court: Appellate Court of Connecticut
• Citation: 164 Conn.App. 832,137 A.3d 926
• Decision Date: 26 April 2016
• Docket Number: No. 36680.,36680.
• Parties: STATE of Connecticut v. Robert CUSHARD.

164 Conn.App. 832
137 A.3d 926

STATE of Connecticut
v.
Robert CUSHARD.

No. 36680.

Appellate Court of Connecticut.

Argued Nov. 18, 2015.
Decided April 26, 2016.

137 A.3d 929

Daniel J. Krisch, assigned counsel, Hartford, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Dawn Gallo, supervisory assistant state's attorney, for the appellee (state).

LAVINE, BEACH and MIHALAKOS, Js.

BEACH, J.

164 Conn.App. 834

The defendant, Robert Cushard, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree, two counts of robbery in the first degree, and one count of burglary in the first degree pursuant to General Statutes §§ 53a–59 (a)(1), 53a–134 (a)(1) and (3), and 53a–101 (a)(2), respectively. On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress statements that he made during an interrogation by the state police, in that he had smoked crack cocaine a few hours prior to the interrogation and, as such, the waiver of his Miranda¹ rights was invalid; (2) granted his motion to represent himself because the court's canvass of him did not adequately establish that his waiver was voluntary, knowing, and intelligent; and (3) instructed the jury that it had to consider his interest in the outcome of the trial, in that such instruction singled him out and thus undermined his right to a fair trial. We do

164 Conn.App. 835

not agree with the defendant's claims, and we affirm the judgment.

The following facts and procedural history are relevant to the disposition of the defendant's appeal. The defendant was arrested in Massachusetts on August 4, 2011. Shortly after his arrest, two Connecticut state police officers interrogated the defendant. During this interrogation, the police prepared a statement for the defendant, but he declined to sign it. A transcript and audiotape of the interview were entered into evidence at the defendant's trial. In July, 2012, the defendant moved to suppress the statements he made during the interrogation, as well as any testimony related to the statements. He argued that he had not knowingly and intelligently waived his rights to counsel and against self-incrimination because he had used crack cocaine shortly prior to his arrest and subsequent interrogation. The court denied the motion.

In September, 2012, the defendant filed a motion to represent himself. The defendant

137 A.3d 930

claimed that his attorney, Christopher M. Cosgrove, was not familiar with his case and was ineffective. In October, 2012, the court conducted a canvass of the defendant, at the end of which the court granted his motion to represent himself. In February, 2013, the court recanvassed the defendant “to go over that once again.” The defendant indicated, again, that he wished to proceed without counsel.

After hearing the evidence, the jury found the defendant guilty of assault, burglary, and two counts of robbery.² The defendant was sentenced to thirty years imprisonment, followed by ten years of special parole. This appeal followed.³

164 Conn.App. 836

I

The defendant claims that the court erred when it denied his motion to suppress the statements he had made during an interrogation by Brian Narkewicz, a detective with the Connecticut state police. He argues that he did not knowingly and intelligently waive his Miranda rights before giving his statements to the police because he had smoked crack cocaine a few hours earlier. We do not agree.

Additional facts, as presented in the record, are necessary to resolve this claim. When the defendant was arrested and brought into the interview room at the police station, Narkewicz read the defendant his rights, and the defendant placed his initials next to each right on a waiver form. The defendant also signed the bottom of the waiver form. Narkewicz testified that the defendant appeared to read the rights form prior to signing. He agreed with the prosecutor that, on the basis of the interview, he believed that the defendant had a sophisticated understanding of the criminal justice system.⁴ Narkewicz questioned the defendant about the

164 Conn.App. 837

allegations against the defendant for nearly one hour. He testified that the defendant “was interacting with me in a very coherent and logical manner” and “answering the questions in a logical, calculated manner.”

Toward the end of the interrogation, the defendant told Narkewicz that he had used crack cocaine one hour prior to his arrest. In response, Narkewicz terminated the interrogation: “I don't want to take a statement from you when you're [messed] up

137 A.3d 931

... [and] if you're not in the right frame of mind.... [W]e're not going to take a statement from you right now because, you know, you're telling me that you're still messed up on crack cocaine, and I certainly don't want to ... do anything you're going to regret later on....”

At the hearing on the motion to suppress, Narkewicz testified that, on the basis of his experience and training, he did not believe that the defendant was unable to make rational decisions: “Given the lapse of time between when he was taken into custody and when I was speaking with him, I did not believe that to be a factor during this interview.”⁵ Narkewicz also testified that the defendant corrected Narkewicz' grammar and pronunciation throughout the investigation. He had not detected the defendant slurring his speech. He observed the defendant exhibit similar mannerisms and speech both during the interview and the next day when the defendant would not have been under the influence of crack cocaine.

The court denied the motion to suppress, and although the court did not make a specific finding as to whether the defendant was under the influence of drugs at the time of the interview, it found in the “totality of the circumstances” that Narkewicz “was a credible

164 Conn.App. 838

witness when he addressed the issue of notice, rights, and waiver of rights. Apparently, [the defendant], according to the testimony, understood those rights, checked off boxes on each right, [and] signed the rights; he never indicated to Detective Narkewicz, at that point, that there was any issue insofar as cocaine or drug abuse....” The court noted that the defendant had not provided information about any treatment he may have received for drug use or introduced expert testimony to explain the effect an illegal substance may have had on his ability to make a voluntary, knowing, and intelligent waiver.

The defendant argues that the court's conclusion that the waiver was valid was erroneous because it was based on inconsistent findings. He argues that “[t]here is an irreconcilable inconsistency between Narkewicz' testimony and his refusal to take the defendant's statement after he learned that the defendant had smoked crack a few hours earlier. Given the trial court's express reliance on Narkewicz' credibility and reliability, its finding of voluntariness cannot stand.”

First, we set forth the principles that guide our review. “To be valid, a waiver must be voluntary, knowing and intelligent.... The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights.... Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case.” (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 50, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004). “Although the issue [of whether there has been a knowing and voluntary waiver] is ... ultimately factual, our usual deference to fact-finding by the trial court is qualified,

164 Conn.App. 839

on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” (Internal quotation marks omitted.) State v. Stephenson, 99 Conn.App. 591, 599–600, 915 A.2d 327, cert. denied, 282 Conn. 903, 919 A.2d 1037 (2007).

137 A.3d 932

“Moreover, an express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case ... [and] in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.... Although mere silence of the accused is not enough...