State v. Doyle, 25460.

• Decision Date: 25 September 2007
• Docket Number: No. 25460.,25460.
• Citation: 104 Conn.App. 4,931 A.2d 393
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Glenn L. DOYLE.

931 A.2d 393

104 Conn.App. 4

STATE of Connecticut v. Glenn L. DOYLE.

No. 25460.

Appellate Court of Connecticut.

Argued January 4, 2007.

Decided September 25, 2007.

James B. Streeto, assistant public defender, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Thomas R. Garcia, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and DiPENTIMA and McDONALD, Js.

McDONALD, J.

The defendant, Glenn L. Doyle, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a)(1)(A) and two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(1). The defendant claims that (1) the trial court improperly denied his motion to suppress evidence of incriminating statements that he made to police because the statements were made during a custodial interrogation and he was not apprised of his Miranda rights,¹ (2) his confession was not voluntary, and (3) the court improperly admitted evidence of his desire to consult with an attorney before signing a written statement and his refusal to give a written statement. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the issues on appeal. Before his trial, the defendant moved to suppress statements made during a May 23, 2002 police interview, arguing that he was in custody at the time, was not given Miranda warnings and was misled as to the purpose of the interview.

The offenses concerning the defendant's appeal were alleged to have occurred in the kitchen and in the bedroom in the victim's home in East Hartford. The victim,² born January 23, 1991, reported that she was sexually assaulted there by the defendant. She stated that these incidents occurred between February, 2001, and February, 2002, once in the kitchen when the defendant had the victim manipulate his penis, and he ejaculated on her and her shirt, and again in the victim's bedroom when the defendant touched her vaginal area.³ The victim described the defendant's conduct to a friend, who told the friend's mother, a child advocate. The child advocate notified the department of children and families, which in turn notified the police. The victim also alleged that sexual contact had occurred in Manchester. The police in East Hartford and Manchester began an investigation. After watching a taped interview of the victim, the police sought an interview with the defendant.

The record of the hearing on the defendant's motion to suppress held before the trial reveals that Lieutenant Timothy McConville of the East Hartford police department telephoned the defendant and requested that he come to the East Hartford police station for an interview. McConville told the defendant that the police wanted to talk to him about his relationship with his sister's family and the victim. The interview initially was scheduled for May 22, 2002, but because the defendant's daughter was hospitalized following an overdose of pills while at school, the interview was rescheduled for May 23, 2002. At about 12 p.m. on May 23, 2002, the defendant drove to the East Hartford police department where he was met in the lobby by McConville and Detective Wayne Mora of the Manchester police department. Both McConville and Mora were in civilian clothes, and Mora had a handgun in a belt holster. The officers accompanied the defendant to an interior room in the police department. The room was eight feet by fourteen feet and the door was closed during the interview. McConville told the defendant that the interview would not take long and that he was free to leave at any time. McConville also told the defendant that he was not in custody, and no Miranda warnings were given during the interview.

McConville explained that he wanted to talk to the defendant about a situation at the victim's home in East Hartford, which the defendant often visited. McConville then questioned the defendant about his relations with the victim and other family members. The defendant denied that anything inappropriate occurred. As the interview continued, the defendant related two incidents in which the victim had walked in on him, once while he was naked while urinating in a bathroom, and once while he was masturbating in a bedroom in the victim's home. The defendant denied that any inappropriate behavior occurred at these times or at any other time.

McConville asked the defendant about an incident in the kitchen of the victim's home when the defendant ejaculated on the victim. The defendant denied that this had occurred. At this point, McConville pointed to a plastic bag that McConville had placed in the interview room prior to the defendant's arrival. The bag contained a shirt and was labeled "DNA Evidence." There was no DNA evidence on the shirt. The defendant indicated that he did not recognize the shirt in the bag. McConville said the defendant should recognize it because it was the shirt that the victim was wearing when he ejaculated on her, leaving his DNA in the semen. Mora then asked the defendant if he remembered coming into the kitchen, walking to the victim, pulling out his penis and masturbating in front of the victim and ejaculating on her face. The defendant began crying and admitted that conduct, claiming that it was because the victim kept touching his leg with her foot. As he made this statement, the defendant lowered his head, crying and sobbing. He then asked if he was under arrest. McConville responded that he could leave at any time, that the officers wanted to find out what happened, and that he could leave right then and there. The defendant stated that his life was going well and that his relationship with his daughter had been good. He stated that he had impulses he could not control, a problem for which he needed help.

The detectives then asked the defendant whether any other similar situations had occurred. The defendant related another incident in the victim's bedroom about six months before the police interview, when he rubbed and touched the victim's backside, and may have brushed against her vagina and then ejaculated on her bedsheets. Mora and McConville previously had not mentioned a bedroom incident or questioned the defendant about it, and the victim's description of the bedroom incident varied from the defendant's version. Mora also asked the defendant about a similar incident at a barbeque in Manchester. The defendant indicated that he did not remember and had been drinking that day.

The detectives then asked the defendant to sign a written statement, and the defendant indicated that he wanted to speak with a lawyer first. McConville told the defendant he was free to leave and asked the defendant to call after speaking to a lawyer to arrange a time for the written statement. Throughout the interview, the defendant was not handcuffed or physically restrained. McConville then went with the defendant to the lobby. The defendant drove away at approximately 1:10 p.m. and later called to say that he would not give a written statement. He was not arrested until June 13, 2002.

After hearing testimony from McConville and Mora, the court denied the motion to suppress before trial finding that there had been no custodial interrogation. The court found that the defendant was not given Miranda warnings, no arrest was made at the time of the interview and the defendant was not actively misled as to the purpose of the interview. The court concluded that no reasonable person could have thought that he was in custody at the time the statements were made, where the defendant knew he could leave, was told that he could leave more than once and did leave when he indicated that he was going to talk to a lawyer before reducing his inculpatory statements to writing. The court also concluded that the defendant's statements were freely and voluntarily made with a full understanding of his ability to leave at any time.

At the defendant's trial, the state introduced evidence that the defendant was arrested on June 13, 2002, by the Manchester police. At that time, he was informed of his Miranda rights and waived them. The defendant then stated that he had earlier confessed to the kitchen incident in East Hartford, but did not remember confessing to the bedroom incident in East Hartford.

At the trial, the defendant testified and described the circumstances of his May 23, 2002 interview in East Hartford. He stated that he did not believe the police claim that his DNA was found on the victim's shirt because, if true, the police would not even be interrogating him. The defendant also testified that he had previous felony convictions.

I

The defendant claims that the court improperly determined that he was not in custody when he initially was questioned at the East Hartford police station on May 23, 2002, without Miranda warnings. We disagree.

Our Supreme Court has stated: "Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation." (Internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 757, 670 A.2d 276 (1996); see also Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam). We first observe that "[t]he defendant bears the burden of proving custodial interrogation." State v. Pinder, 250 Conn. 385, 409, 736 A.2d 857 (1999).

"[A]lthough the circumstances of each case must certainly influence a determination of whether a suspect is `in custody' for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." (...