State v. Dobson

• Decision Date: 04 February 1992
• Docket Number: No. 14251,14251
• Citation: 602 A.2d 977,221 Conn. 128
• Court: Connecticut Supreme Court
• Parties: , 60 USLW 2602 STATE of Connecticut v. Timothy DOBSON.

Page 977

602 A.2d 977

221 Conn. 128, 60 USLW 2602

STATE of Connecticut v. Timothy DOBSON.

No. 14251.

Supreme Court of Connecticut.

Argued Oct. 1, 1991.

Decided Feb. 4, 1992.

Berdon, J., filed dissenting opinion.

John F. Merchant, with whom, on the brief, was Mark Phillips, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Robert A. Lacobelle, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and BERDON, JJ.

COVELLO, Justice.

This is the defendant's appeal from his conviction of murder in violation of General Statutes § 53a-54a(a). ¹ The issues on appeal are whether the trial court: (1) erred in allowing into evidence the defendant's post-arrest statements to the police; and (2) improperly limited the cross-examination of a state's eyewitness. We now affirm.

The jury might reasonably have found the following facts. On October 21, 1988, at approximately 6 p.m., the defendant shot and killed the victim, Joseph Rucker, at the P.T. Barnum Apartments in Bridgeport. The jury found the defendant guilty of murder. The trial court sentenced the defendant to a term of sixty years to run consecutively with sentences already being served.

I

The defendant first claims that the trial court improperly denied his motion to suppress as evidence his post-arrest oral statements made to Detective Robert Kwet and Patrol Officer Paul Carlson. The trial court subsequently admitted these statements into evidence. The facts relevant to this issue are as follows. At about 3 p.m. on October 24, 1988, Bridgeport police arrested the defendant and charged him with unlawful restraint. ² At the police station some time later, the police advised him that he was also being arrested for murder.

Upon the defendant's arrival at the police station, Detective Leo Krusinski read the defendant the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), from a printed form and then asked him to complete the top portion of the form that requested general information concerning his name, age and educational background. The defendant's responses revealed that he had completed eleventh grade and could read and write. In addition, Krusinski requested that he read the Miranda rights appended to the form and put his initials by each one if he understood the rights. The defendant initialed each right and also complied with a further request to read and initial a waiver of his Miranda rights to document his waiver of the right to an attorney and his willingness to be interviewed and answer questions. Krusinski also asked the defendant to sign the form indicating that he understood all of his rights, but the defendant, maintaining that he would not sign without first consulting his attorney, refused to sign the document. As Krusinski began to write a note on the report concerning the defendant's refusal to sign, the defendant changed his mind and, without further comment from Krusinski, signed the form.

At about 3:30 p.m., Lieutenant Michael Kozlowski, who was also present, signed the report as a witness along with Krusinski. After the defendant completed and signed the form, he asked Kozlowski if he could telephone his attorney. Kozlowski allowed him to place the call but the line was busy. Kozlowski then brought the defendant to Kwet, who had the original murder warrant, and advised Kwet that the defendant had already read his Miranda rights and had unsuccessfully tried to contact his attorney and would like to try again.

Kwet formally served the defendant with the warrant and then, without any questioning by the detective, the defendant asked him the date and time of the murder. After Kwet responded to his inquiry, the defendant immediately offered an alibi that he was at a bar called Nick & Neal's with "two girls," both named Maria, at the time of the shooting. Following the defendant's explanation, Kwet asked him if he was willing to make a statement. The defendant declined, stating that he would answer questions but would not sign a statement until he spoke with his attorney. Kwet then allowed him to telephone his attorney but the attorney was not in his office. The police then placed the defendant in a booking area cell.

At 7 p.m., Carlson, who was just beginning his evening shift, brought the defendant to the detective bureau. Carlson, who had been investigating the murder, allowed the defendant to telephone his girlfriend and, following their phone conversation, he again read the defendant the Miranda rights. After reading a rights form identical to the one that he had earlier signed, the defendant asked Carlson if he could reduce his bond. After Carlson said he could not, the defendant said that he would not complete and sign the rights form without first consulting his attorney. Nevertheless, he said he was willing to answer questions about the homicide investigation. In response to an inquiry about the murder, the defendant told Carlson that he belonged to a gang called the "Terminators." The defendant said that the leader of the gang had sent a member to bring the victim back to the P.T. Barnum Apartments so they could shoot him. The defendant admitted to having a gun when the gang surrounded the victim but said that it was Vincent Green who shot and killed the victim with an AK-47 rifle.

The defendant argues that because he did not initiate the discussions with Kwet and Carlson, his statements to them should not have been admissible. ³ He claims that his invocation of the right to counsel should act as a complete invocation of this right and cover any of his subsequent statements, oral or written. The defendant asserts that his statements are inadmissible under the Smith v. Illinois, 469 U.S. 91, 92, 105 S.Ct. 490, 491, 83 L.Ed.2d 488 (1984) (per curiam), test for a waiver of the right to counsel enunciated in Connecticut v. Barrett, 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987). "That [test] requires a finding that the suspect '(a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.' Smith v. Illinois, [supra, 469 U.S. at 95, 105 S.Ct. at 492]. See also Edwards [v. Arizona, 451 U.S. 477, 485-86 n. 9, 101 S.Ct. 1880, 1885 n. 9, 68 L.Ed.2d 378 (1981).]" Connecticut v. Barrett, supra, 479 U.S. at 527, 107 S.Ct. at 831. As to the alibi disclosed to Kwet, we conclude that the defendant initiated those discussions and waived his right to counsel in a knowing and intelligent manner. With respect to the statements made to Carlson, we are unpersuaded that the test for waiver of the right to counsel is applicable to the circumstances of these statements. We address these two statements seriatim.

A

Assuming, arguendo, that the defendant invoked his right to counsel when he asked to telephone his attorney, we are persuaded from the evidence that the defendant thereafter initiated the conversation with Kwet that led to the disclosure of his alibi. It is clear from an examination of the record that Kwet served the murder warrant on the defendant without attempting to initiate interrogation. Furthermore, the actual serving of the warrant itself is a procedural formality not tantamount to an initiation of interrogation. State v. Evans, 203 Conn. 212, 225-29, 523 A.2d 1306 (1987). The defendant then initiated a dialogue by inquiring about the circumstances of the murder and, thereafter, offered his alibi. We are also convinced that, pursuant to the second prong of the Smith v. Illinois test, there was a waiver of the right to counsel in a knowing and intelligent manner when, as here, the defendant, who had an eleventh grade education and could read and write, had, less than fifteen minutes prior to volunteering his alibi, signed the prescribed form indicating that he understood all of his Miranda rights.

B

With respect to the remarks made to Carlson, we first note that on remand ⁴ from the United States Supreme Court in Connecticut v. Barrett, we held that the Smith v. Illinois test was inapplicable and that a defendant's oral statements are admissible when, in a limited invocation of his right to an attorney, an accused agrees to make oral statements but refuses to endorse written ones without consulting an attorney. State v. Barrett, 205 Conn. 437, 448-49, 534 A.2d 219 (1987); see also Connecticut v. Barrett, supra, 479 U.S. at 529, 107 S.Ct. at 832. In Barrett, the defendant, after signing an acknowledgment that he had received his Miranda warnings, told the police that "he would not give [them] any written statements but he had no problem in talking about the incident." ⁵ Connecticut v. Barrett, supra, 479 U.S. at 525, 107 S.Ct. at 830. The defendant fails to distinguish State v. Barrett, supra, 205 Conn. 437, 534 A.2d 219, but instead contends that Connecticut v. Barrett still requires an analysis under the Smith v. Illinois two-prong test for a waiver of the right to counsel.

In Connecticut v. Barrett, the United States Supreme Court decided that there was no need to even consider the first prong of the Smith v. Illinois test, i.e., whether the defendant " 'initiated further discussions with the police,' " because there, as here, the defendant's willingness to make oral statements did not represent an "ambiguous or equivocal response to the Miranda warnings...." ⁶ Connecticut v. Barrett, supra, 479 U.S. at 529 n. 3, 107 S.Ct. at 832 n. 3. "To conclude that [the defendant] invoked his right to counsel for all purposes requires not [only] a broad interpretation of an ambiguous statement, but [also] a disregard of the ordinary meaning of [his unequivocal] statement." Connecticut v. Barrett, supra, 479 U.S. at 529-30, 107 S.Ct. at 832. Because the defendant clearly manifested his intent, in an unambiguous manner, to answer questions but not sign anything, we conclude that his statements to Carlson are...