State v. Derrico

Decision Date10 June 1980
Citation181 Conn. 151,434 A.2d 356
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Anthony S. DERRICO.

Maxwell Heiman, Sp. Public Defender, with whom was William J. Tracy, Jr., Bristol, for appellant-appellee (defendant).

Richard L. Shiffrin, Asst. State's Atty., with whom, on the brief, were George D. Stoughton, State's Atty. and Robert M. Meyers, Chief Asst. State's Atty. for appellee-appellant (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.

PETERS, Associate Justice.

This case principally concerns the interrelated mandates of the state and federal constitutions that determine the admissibility of custodial confessions procured after a suspect was found at his home in the early hours of the morning and then invited to police headquarters. The defendant, Anthony S. Derrico, was indicted and convicted, after trial to a jury, of the crime of felony murder, in violation of General Statutes §§ 53a-54c and 53a-54a (c), in connection with the shooting death of Anne H. Moore during the course of a robbery or attempted robbery on April 8, 1976, at the Howard Johnson's Motel in Rocky Hill. Before trial, the defendant moved to suppress two confessions made to police during a custodial investigation at police headquarters. Although the trial court, Shea, J., at that time ordered one of the statements suppressed in light of the failure of the police to have given the defendant complete warnings as required by Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), both statements were subsequently admitted into evidence, over objection, at trial. The defendant has appealed from the judgment rendered upon his conviction.

In his appeal, the defendant challenges (1) the admission into evidence of certain statements admitting culpability; (2) the refusal of the trial court to require that a record be made of the grand jury proceedings or to permit counsel to be present during the grand jury proceedings; and (3) the charge to the jury concerning the requirement of proof beyond a reasonable doubt.

I

Because of its significance, we first address the defendant's claim that the two confessions obtained by the police at police headquarters were improperly admitted into evidence at trial. The pertinent factual circumstances, as they appear from the transcripts of the trial and from Derrico's motion to suppress the confessions, supplemented by the trial court's memorandum of decision on the motion to suppress, are as follows: On June 3, 1976, incident to an arrest on an unrelated charge, Connecticut state police officers searched the defendant's car and located under the dashboard a .38 caliber handgun to which the defendant, after being advised of his full Miranda rights, admitted ownership. On June 18, 1976, at about 9:20 a. m., the state police received a ballistics report from the federal bureau of investigation linking the gun with the bullet recovered from the motel office where Anne H. Moore had been shot. On June 19, 1976, at about 6:15 a. m., acting solely on the basis of the ballistics report obtained nearly twenty-four hours earlier, Officer Massamura of the Rocky Hill police and Trooper Raposa of the Connecticut state police arrived, without an arrest warrant, at the defendant's West Hartford home where he lived with his father. They found the defendant and invited him to accompany them to the Hartford state police headquarters for questioning. He was not then told either that he was being arrested or that he was free to refuse to go to Hartford. The defendant did not object to accompanying the officers to the police station. While in the police car, en route to the Hartford state police barracks, the defendant was advised of two elements of the Miranda warnings: his rights to remain silent and to have counsel present during questioning. During the trip he was further advised that he would be free to leave if, upon arrival in Hartford, he chose not to speak.

Upon arrival at state police headquarters at about 6:45 a. m., the defendant was escorted into an interrogation room equipped with a recording machine. The defendant was again told he was free to leave; was informed that his handgun had been identified as the murder weapon; and was questioned about the incident at Howard Johnson's. Incomplete Miranda warnings were given, 1 interrupted by the defendant's objection to the reading. Thereafter, at around 7:15 a. m., but before the defendant had been fully advised of or had formally waived his Miranda rights, the defendant admitted his involvement in the crime. This statement was unrecorded. The interview continued, and, at approximately 8:07 a. m., nearly one and one-half hours after Derrico's arrival at the police barracks, the tape recorder was turned on and the defendant was read the complete Miranda warnings. 2 The defendant refused to sign the waiver form provided by the police as to each element of the Miranda warning, and the tape recorder was turned off. The defendant subsequently agreed to give a statement and the recorder was reactivated. The defendant, showing signs of being emotionally distraught, executed a waiver of his Miranda rights and confessed his role in the crime. While the defendant was in the process of making his statement, the tape recorder was turned off several times for unrecorded discussion. After the taping, the defendant, crying, crumpled the waiver form which was later found "all torn up" and which was produced at trial as several pieces of paper taped together.

The question of the admissibility of the two confessions, one obtained before and one after full reading of the Miranda warnings, was twice presented to the trial court. In a motion to suppress before the trial had begun, the first confession was ruled inadmissible. Nonetheless, at trial, both confessions were admitted into evidence over the timely objection of the defendant with exceptions duly noted. The record does not disclose why the trial court reversed its earlier ruling. Since the state, however, in its brief concedes the inadmissibility of the first confession, we need not consider anything other than the second confession at this time.

The defendant argues the inadmissibility of the second confession on a variety of constitutional grounds. In reliance on the protection against self-incrimination contained in the fifth amendment to the United States constitution and article first, § 8 of the Connecticut constitution, and his right to due process of law under the fifth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9 of the Connecticut constitution, the defendant maintains that the confession should have been excluded as involuntary. In reliance on the protection against unreasonable search and seizure contained in the fourth amendment to the United States constitution and article first, § 7 of the Connecticut constitution, the denial of which would violate his right to due process of law under the fifth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9 of the Connecticut constitution, the defendant contends that the confession should have been excluded as the tainted fruit of an illegal arrest. It is clear under recent decisions of the United States Supreme Court that a confession that is found to be voluntary for purposes of the fifth amendment has met only a threshold requirement for fourth amendment analysis. With respect to the fourth amendment, the further test is whether there is so close a causal connection between an illegal arrest and a confession that the confession must be suppressed in order to deter similar police misconduct in the future and to protect the integrity of the courts. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 2258, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 600-603, 95 S.Ct. 2254, 2260, 2261, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Since a finding of voluntariness would therefore not resolve the question of admissibility of the second confession, we turn first to an inquiry into its causal connection with an arrest.

The defendant's claim that the second confession should have been excluded as violative of the fourth amendment to the United States constitution and article first, §§ 7 and 9 of the Connecticut constitution requires the determination of three subsidiary questions: (1) was the defendant arrested? (2) was the defendant's arrest illegal? and (3) was the confession causally related to the defendant's illegal arrest? Since we decide the first of these questions in the negative, we agree with the state that the confession was not wrongfully admitted.

The question whether the defendant was under arrest when he acceded to the request of the police officers to accompany them to police headquarters in Hartford is crucial to the defendant's fourth amendment claims. If the defendant voluntarily went to Hartford with the police, there was then no coercive police conduct to invoke the exclusionary rules of Payton v. New York, 445 U.S. 573, 586-90, 100 S.Ct. 1371, 1380-1387, 63 L.Ed.2d 639 (1980), and Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 2258, 60 L.Ed.2d 824 (1979). The trial court, in its memorandum of decision denying the defendant's motion to suppress his confessions, concluded that the defendant agreed to come to state police headquarters in Hartford for questioning and was not expressly or impliedly in custody until the time, at police headquarters, when he was informed of the results of the tests on the gun. Although the question is a close one, we find that this conclusion was not in error.

"Precisely when an arrest occurs is a question of fact which depends on an evaluation of all the surrounding circumstances. Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889,...

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