State v. Etienne

• Decision Date: 04 September 2007
• Docket Number: No. 27500.,27500.
• Citation: 930 A.2d 726,103 Conn.App. 544
• Parties: STATE of Connecticut v. Ricardo ETIENNE.
• Court: Connecticut Court of Appeals

930 A.2d 726

103 Conn.App. 544

STATE of Connecticut v. Ricardo ETIENNE.

No. 27500.

Appellate Court of Connecticut.

Argued April 19, 2007.

Decided September 4, 2007.

Mark Diamond, special public defender, for the appellant (defendant).

Kathryn Ward Bare, special deputy assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Kelley P. Swift, former assistant state's attorney, for the appellee (state).

SCHALLER, DiPENTIMA AND GRUENDEL, Js.

GRUENDEL, J.

The defendant, Ricardo Etienne, appeals from the judgment of conviction, rendered after a court trial, of forgery in the second degree in violation of General Statutes § 53a-139(a)(3)¹ and possession of narcotics in violation of General Statutes § 21a-279(c).² On appeal, the defendant claims that the court improperly denied his motion to suppress. He also alleges evidential insufficiency and error.³ We affirm the judgment of the trial court.

The court reasonably could have found the following facts. On the evening of April 29, 2003, officers from the Stamford police department conducted surveillance at Cove Island Park as part of a narcotics investigation. The surveillance involved two unmarked vehicles that each contained two plainclothes officers. One vehicle was stationed in the parking lot; the other was parked a short distance away and served as a "takedown team." At 9:30 p.m., a red Volkswagen entered the parking lot and stopped approximately thirty feet in front of the unmarked police vehicle. The defendant sat in the rear passenger seat while his brother, Alain Etienne, and a female friend sat in the driver's and front passenger seats, respectively. The officers watched as the defendant reached out of the rear passenger window and dumped the contents of a cigar to the ground. A moment later, they saw him light the cigar. When the officers detected the odor of marijuana, they notified the takedown team.

The takedown team smelled the odor of marijuana as they approached the Volkswagen. Upon removing the defendant from the vehicle, Officer James Matheny recognized the defendant from a prior arrest. Matheny then entered the vehicle. Officer Christopher Broems asked the defendant his name, to which he replied, "Alain Etienne." The driver of the vehicle also identified himself as Alain Etienne and informed the officers that the defendant was his brother, Ricardo Etienne. Inside the Volkswagen, Matheny discovered a "partially smoked marijuana cigarette" on the rear passenger floor where the defendant earlier sat. Accordingly, the officers handcuffed the defendant and placed him under arrest. Broems then inquired as to whether the defendant had any identification, to which the defendant answered affirmatively. Retrieving a wallet from the defendant's pocket, the officers found a Florida identification card and a social security card that both bore the name "Alain Etienne." The photograph on the identification card was one of the defendant.

The officers transported the defendant to police headquarters. Officer Brian Butler completed a uniform arrest report by asking the defendant a series of biographical questions, including one regarding his identity. During booking, the officers also asked the defendant to remove his shoes. When he complied, the officers found a marijuana cigarette in the defendant's shoe. Laboratory tests later confirmed that both the cigarette found in the Volkswagen and the cigarette found in the shoe contained marijuana. In addition, fingerprints of the defendant taken during booking matched those obtained from Ricardo Etienne in connection with a 1997 arrest.⁴

Also, at some point while at police headquarters that evening, Matheny heard the defendant volunteer that "he was Ricardo Etienne and that he had reentered the country through Orlando, Florida."⁵ Subsequent contact with the Immigration and Naturalization Service confirmed that the defendant had been deported in 2000.

The defendant was charged by information with one count of possession of marijuana and one count of forgery in the second degree. He thereafter filed a motion to suppress his statements made to the officers on April 29, 2003. Following a hearing on the matter, the court denied the motion.⁶ Prior to trial, the state filed a motion in limine in which it requested that the court take judicial notice of "[Fla. Stat. Ann. §§ 322.02 and 322.051 et seq. (West 2005)], which authorize the [Florida] [d]epartment of [h]ighway [s]afety and [m]otor vehicles to issue Florida identification cards, which are officially issued or created by this public office, its public servants and government instrumentality." The state also filed a motion in limine by which it provided notice that it may introduce certain prior uncharged misconduct of the defendant, namely, evidence that on August 14, 2000, the United States District Court ordered that he be deported to Haiti. The court granted both motions and a trial followed, at the conclusion of which the court found the defendant guilty on both counts. The court rendered judgment and sentenced the defendant to a total effective term of thirty-nine months imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

In the seminal case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that when a suspect is subjected to custodial interrogation, "[h]e must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."⁷ Id., at 479, 86 S.Ct. 1602. The defendant claims that because he was not provided Miranda warnings prior to stating his name either at the parking lot or during booking at the police headquarters,⁸ the court improperly denied his motion to suppress.

Our standard of review of the court's findings and conclusions in connection with a motion to suppress is well established. "A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court's memorandum of decision...." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 514, 903 A.2d 169 (2006).

The fifth amendment to the United States constitution affords to each individual the privilege not to be compelled to incriminate himself or herself.⁹ "The fundamental purpose of the Court's decision in Miranda was to assure that the individual's right to choose between speech and silence remains unfettered throughout the interrogation process.... To this end, the Miranda Court adopted prophylactic rules designed to insulate the exercise of Fifth Amendment rights from the government compulsion, subtle or otherwise, that operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." (Citations omitted; internal quotation marks omitted.) Connecticut v. Barrett, 479 U.S. 523, 528, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987). The Miranda court explained that its prophylactic rules were intended to guard against "overzealous police practices"; Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. 1602; and the fact that "custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals." Id., at 455, 86 S.Ct. 1602. The United States Supreme Court subsequently has observed that "[f]idelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated." Berkemer v McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

Miranda mandates that the warnings it articulated must be given "when the individual is first subjected to police interrogation while in custody...." Miranda v. Arizona, supra, 384 U.S. at 477, 86 S.Ct. 1602. "[T]he term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Emphasis in original; internal quotation marks omitted.) State v. Kirby, 280 Conn. 361, 398 908 A.2d 506 (2006), quoting Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). "Routine questions ... ordinarily innocent of any investigative purpose, do not pose the dangers Miranda was designed to check...." (Internal quotation marks omitted.) State v. Jones, 37 Conn.App. 437, 445, 656 A.2d 696, cert. denied, 233 Conn. 915, 659 A.2d 186 (1995). Regarding the defendant's statement at the parking lot, the record reveals that immediately after the defendant was removed from the Volkswagen, Matheny entered the vehicle. At that moment, Broems asked the defendant his name, and the defendant replied, "Alain Etienne." When that question was posed, neither the narcotics nor the identification cards had been discovered. Further, the defendant had not yet been handcuffed or arrested. In light of the foregoing, that simple inquiry by the officer first encountering the defendant cannot be described as a coercive or overzealous police practice. It certainly was not a custodial interrogation pursuant to Miranda. See State v. Canales, 281 Conn. 572, 586, 916 A.2d 767 (2007); State v. Walters, 94 Conn.App. 297, 304, 891 A.2d 1003, cert. denied, 278 Conn. 908, 899 A.2d 36 (2006).

More problematic is the defendant's statement made during booking. The following additional facts are...