State v. Damon

Decision Date06 March 1990
Docket NumberNo. 13672,13672
Citation570 A.2d 700,214 Conn. 146
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Kenneth DAMON.

Mark Rademacher, Hamden, for appellant (defendant).

Geoffrey E. Marion, Deputy Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, COVELLO, HULL and SANTANIELLO, JJ.

COVELLO, Associate Justice.

The defendant, Kenneth Damon, appeals from his conviction of murder in violation of General Statutes § 53a-54a(a). 1 The dispositive issues are: (1) whether the trial court erred in denying the defendant's motion to suppress inculpatory statements made by the defendant to the police; and (2) whether the trial court violated the defendant's constitutional rights of confrontation, compulsory process and due process when it admitted an autopsy report into evidence, under the business record exception to the hearsay rule. We find no error.

The jury could reasonably have found the following facts: On September 9, 1987, Monica Joyner was found stabbed to death in the basement of a three family dwelling in New Haven. The victim lived on the second floor with her husband and two young children. The first floor apartment was occupied by Prisilla Damon, the defendant's mother. Prisilla Damon lived alone, but the defendant occasionally stayed overnight at her apartment. The defendant worked the noon to eight p.m. shift at Bozzuto's Trucking Company in Cheshire. On the night of September 8, 1987, Prisilla Damon picked up the defendant at Bozzuto's, and at midnight they returned to her apartment, where the defendant planned to spend the night.

At approximately 11:15 a.m. on September 9, Mitchell Stevenson, the owner of the building, left his third floor apartment and walked down into the basement, and there discovered the victim lying face down in a pool of blood on the basement floor. The victim's clothing was in partial disarray. The victim had suffered multiple stab wounds to her upper body, head and face.

On the afternoon of September 9, Prisilla Damon went to the New Haven police station and gave a statement indicating that the defendant had been at her apartment that morning. Two plainclothes detectives, Francisco Ortiz and Leroy Dease, drove to Bozzuto's, where the defendant was working. The detectives asked the defendant if he would voluntarily accompany them to the New Haven police station to be interviewed in connection with a homicide they were investigating. The detectives informed the defendant that he was not under arrest, that he did not have to accompany them, and that he was free to leave if he chose to. The defendant agreed to accompany the detectives.

The defendant was taken to the detective division and given Miranda 2 warnings. The defendant was not handcuffed, was not told that he was under arrest, and was not told that he was a suspect. The defendant never requested that he be allowed to go home.

Between 9 and 9:30 p.m. the detectives began questioning the defendant in a conference room. 3 The defendant initially denied any knowledge of the victim or her death. After several hours of questioning however, at approximately 12:15 a.m. on September 10, the defendant gave a tape recorded confession in which he admitted killing the victim. 4 The defendant claimed that he had acted in self-defense. He stated that the victim, while "high" on drugs, had knocked on the back door of his mother's apartment at approximately 9:30 a.m. and had asked him for some cocaine. He further stated that the victim took a knife from his mother's kitchen, then lured him down to the basement, where she attacked him with the knife. The defendant stated that during the ensuing struggle he accidentally stabbed the victim. The defendant told the police that he had wrapped the knife in a brown paper bag and had thrown it into a garbage can in front of the Dixwell Plaza shopping area. 5

The defendant was thereafter charged in a substitute information with murder, in violation of General Statutes § 53a-54a(a). On May 24, 1988, the defendant filed a motion to suppress the statements he had made to the police. In his motion to suppress, the defendant claimed that his statements were made without a voluntary, knowing and intelligent waiver of his constitutional privilege against self-incrimination, and that the statements were made involuntarily in violation of his constitutional rights to due process.

On November 29, 1988, the day before the trial began, the trial court conducted a suppression hearing and thereafter denied the motion to suppress. The trial court concluded that while there was no probable cause to arrest the defendant up until the time he made the inculpatory statements, the defendant had voluntarily accompanied the police to New Haven, had voluntarily remained at the police station, and was not in police custody at the time he made his incriminating statements. The trial court further found that the defendant's statements were made with full knowledge of his Miranda rights.

On December 1, 1988, at the start of the trial, the state represented to the court that Malka B. Shah, the pathologist who performed the autopsy on the victim, was in India and was not expected back "for some period of time." The state explained that it intended to call another pathologist from the same office, Ira Kanfer, who could properly interpret and explain the findings contained in the report.

The defendant objected to the admission of the autopsy report through Kanfer and requested three alternative rulings from the trial court. First, he requested that the court preclude Kanfer from testifying. Second, the defendant requested that the court grant a continuance until Shah returned from India. Third, the defendant requested that the court, if it denied the first two requests, grant a continuance so that he could retain his own pathologist to examine the autopsy report. Upon inquiry, the trial court established that Shah had taken a three month vacation and would not be back for two weeks. The trial court overruled the defendant's objections and denied the requests for a continuance. The trial court ruled that the autopsy report would be admissible as a business record, regardless of Shah's availability, if a proper foundation were laid and Kanfer could explain the report.

Upon inquiry by the trial court, defense counsel stated that he had obtained a copy of the autopsy report "two months or so before this case started." The trial court concluded that there had been ample opportunity to review the report and to retain a pathologist to explain it from the defendant's standpoint.

Dr. Kanfer then testified for the state. Kanfer limited his testimony to explaining the terms used in the autopsy report and describing the victim's wounds as noted therein. He testified that the autopsy report was a standard report made by the person who performed the autopsy, that it was a report made in the regular course of business at the medical examiner's office, that it was the regular course of business after making the report to keep it on file at the medical examiner's office, and that the report was made soon after the autopsy was completed.

The state offered the autopsy report as a full exhibit and the defendant objected. The trial court concluded that a sufficient foundation had been laid and admitted the autopsy report. Kanfer then testified briefly concerning the four fatal stab wounds and the cause of death, reiterating the opinions of Shah as contained within the report.

On December 7, 1988, the jury found the defendant guilty as charged. The defendant immediately filed a motion for judgment of acquittal and a motion for a new trial. The trial court denied both motions. On February 24, 1989, the defendant was sentenced to a prison term of sixty years. The defendant thereafter filed a direct appeal from that judgment with this court, pursuant to § 51-199(b)(3). 6

I

The defendant's first claim is that the trial court erred in denying the defendant's motion to suppress his inculpatory statements on the ground that he was arrested without probable cause and that therefore, the statements must be suppressed as the fruit of an illegal arrest. The gravamen of the defendant's claim is that he was in the custody and complete control of the police prior to and during the interview, and he was therefore "seized" and under arrest for constitutional purposes. The defendant alleges that because no probable cause existed at that time for his arrest, his confession should have been suppressed. We do not agree.

It is well settled that the fourth amendment 7 requires that a confession which is the product of an arrest or a detention made without probable cause must be excluded from evidence. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); see also Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). We previously have held that the trial court must make two determinations in assessing the admissibility of a confession made during custodial interrogation following a claimed warrantless arrest: (1) whether or not the defendant has been seized; and (2) whether or not there was probable cause for the seizure. State v. Acquin, 187 Conn. 647, 651, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983); State v. Ostroski, 186 Conn. 287, 290, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982). Because the trial court expressly found that there was no probable cause for the defendant's arrest prior to his making inculpatory statements, only the first question is at issue in this appeal.

"[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United...

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