State v. Ferrell

• Decision Date: 09 August 1983
• Citation: 463 A.2d 573,191 Conn. 37
• Court: Connecticut Supreme Court
• Parties: , 44 A.L.R.4th 831 STATE of Connecticut v. Larry FERRELL.

Page 573

463 A.2d 573

191 Conn. 37, 44 A.L.R.4th 831

STATE of Connecticut v. Larry FERRELL.

Supreme Court of Connecticut.

Argued May 5, 1983.

Decided Aug. 9, 1983.

Hyman Wilensky, New London, with whom were Gary Granai, East Lyme, and, on brief, Robert L. Curzan, Portland, for appellant (defendant).

Irving L. Aronson, Asst. State's Atty., with whom, on brief, was C. Robert Satti, State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, SHEA and GRILLO, JJ.

SPEZIALE, Chief Justice.

The defendant, Larry Ferrell, was indicted by a grand jury for murder in violation of General Statutes § 53a-54a. After a trial to a jury of twelve before Spallone, J., he was convicted as charged and sentenced to a term of fifteen years to life in prison. From that judgment he appealed to this court, claiming: (1) that the trial court erred in admitting testimony concerning telephone conversations between the defendant and his attorney which were overheard by police officers; and (2) that the state failed to present evidence from which an intent to kill could be inferred. ¹

The jury could reasonably have found the following facts: The defendant and the victim, Dudley Olbrys, were both patrons at a bar in East Lyme on the evening of November 26, 1980. A dispute arose between them after the defendant blew a bird call in the bar. The dispute escalated and, as a result of a challenge issued by the victim, the two men went outside to the parking lot. A scuffle ensued and the defendant was knocked to the ground. Following a further verbal exchange each retreated to his own vehicle. The defendant took a shotgun from his pickup truck, loaded it, and cocked the hammer. The victim walked towards the defendant's vehicle, and the two faced each other across the tops of several cars. Within minutes, the victim was killed by a blast from the defendant's shotgun.

The defendant was arrested and taken to the Montville police barracks where he was read the rights prescribed in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). When the defendant asked for permission to call his attorney, Gary C. Granai, the police permitted him to use a telephone in the report room where his conversation could be overheard by police officers in the room. Troopers Thomas W. Sparkman and Joel Riley in fact listened to parts of the defendant's conversation with Granai. Granai arranged with Attorney Hyman Wilensky to telephone the defendant at the barracks, and Trooper Riley listened to the defendant's part of that conversation as well. Both conversations were tape recorded by the police. ² At trial, over the defendant's objection, both officers testified to inculpatory statements made by the defendant while talking with his attorneys. Sparkman testified that the defendant told Granai, "I shot a man. I had no other choice. He said he was going to shoot me three times. He said he had a forty-four." Riley testified that the defendant told Wilensky, "I killed him." ³

I

"You have a right to remain silent. If you talk to any police officer, anything you say can and will be used against you in court.

"You have a right to consult with a lawyer before you are questioned, and may have him with you during questioning.

"If you cannot afford a lawyer, one will be appointed for you, if you wish, before any questioning.

"If you wish to answer questions, you have the right to stop answering at any time.

"You may stop answering questions at any time if you wish to talk to a lawyer, and may have him with you during any further questioning." Connecticut State Police Department, warning card, Form SP-344-C.

The United States Supreme Court, in Miranda v. Arizona, supra, 479, 86 S.Ct. 1630, required that warnings similar to those above be given to an accused prior to custodial interrogation in order to effectuate the constitutional guarantee that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const., amend. V. In the seventeen years since the Miranda decision, the "Miranda warnings" have come to be a routine component of most arrest situations. Although the Miranda warnings were originally effective in state prosecutions only because they were a component of due process of law under the fourteenth amendment; Miranda v. Arizona, supra, 463-65, 86 S.Ct. 1621-1622, 1623; Malloy v. Hogan, 378 U.S. 1, 3, 84 S.Ct. 1489, 1490-1491, 12 L.Ed.2d 653 (1964); they have also come to have independent significance under our state constitution; Conn. Const., art. I, § 8; State v. Falby, 187 Conn. 6, 11 and n. 1, 444 A.2d 213 (1982). The warnings represent the belief, deep-seated in the Anglo-American legal tradition, that a person accused of a crime may be convicted only if exacting measures have been taken to assure that the accused has been treated with the most scrupulous fairness by agents of the government. ⁴

The primary purpose of the Miranda warnings is to ensure that an accused is aware of the constitutional right to remain silent before making statements to the police. The purpose of including in the warnings the right to consultation with an attorney is to ensure that the defendant understands the law in order to make a knowing, intelligent, and voluntary decision whether to answer police inquiries or make voluntary statements. Miranda v. Arizona, supra, 384 U.S. 469, 86 S.Ct. 1625. Because of this emphasis on the role of the attorney as protector of an accused's constitutional rights; see Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2568-2569; 61 L.Ed.2d 197, reh. denied, 444 U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979); it is reasonable for an accused to believe that if he or she asks for an attorney after being read the Miranda warnings anything said to the attorney will be shielded from use against the accused at trial. The right to counsel before questioning is meaningless if a private and free discussion of the case is not permitted. Eavesdropping by the police or their agents makes a mockery of the right to consult counsel before being interrogated. ⁵ In fact, if police may listen to attorney-client discussions, as they did in this case, interrogation may not be necessary, for one accused of a crime often will tell the full story of the incident to the attorney at the first opportunity.

"The entire aim of Miranda was to assure the defendant's right to choose between speech and silence. Certainly, there can be an intelligent and knowing waiver of this right (see Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 [1962]; Glasser v. U.S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 [1942]. But that waiver should not be effectuated through the back door. The Miranda concept is not a battle of wits. There is a threat to due process when an unsophisticated defendant is offered a right, and is eventually impaled by its usage." People v. Smith, 100 Misc.2d 823, 826, 420 N.Y.S.2d 132, 134-35 (1979). "In order ... to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored." (Emphasis added.) Miranda v. Arizona, supra, 384 U.S. 467, 86 S.Ct. 1624.

In the case before us, the defendant's statements were not obtained by police interrogation or by any coercive measures appearing on the record. By his request to call an attorney, however, the defendant had clearly indicated his intent not to give a statement. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378 (1981). Although the defendant's incriminating statements were not compelled, neither were they knowingly, intelligently, and voluntarily given to the police. Instead, the defendant's attempt to exercise his right to consult with an attorney resulted in the interception by the authorities of the very sort of incriminating statement which the Miranda warnings seek to guard against. The use at trial of statements obtained from the defendant while he was attempting to take up the protective shield of Miranda "deprived him of the due process of law by which he was constitutionally entitled to have his guilt determined." Malinski v. New York, 324 U.S. 401, 416, 65 S.Ct. 781, 789, 89 L.Ed. 1029 (1945) (Opinion of Frankfurter, J.); Conn. Const., art. I, § 8.

The court erred by admitting the testimony of police officers concerning telephone conversations between the defendant and his attorneys. ⁶ Because we hold that the use of that testimony deprived the defendant of a fair trial, a new trial is required. ⁷

Our holding today does not overrule established law defining the scope of custodial rights. When a suspect is taken into custody, the Miranda warnings must be given before any interrogation takes place. ⁸ Either explicitly or implicitly, the custodian will ask whether the suspect waives the right to silence. If the state demonstrates a knowing and intelligent waiver; State v. Wilson, 183 Conn. 280, 283-87, 439 A.2d 330 (1981); see also State v. Harris, 188 Conn. 574, 579-82, 452 A.2d 634 (1982); then any statements made to the police are not made inadmissible on Miranda grounds. If the accused expresses a desire to talk to a lawyer, however, the accused has invoked the right to silence and "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, supra, 451 U.S. 484-85, 101 S.Ct. 1884-1885; State v. Acquin, 187 Conn. 647, 667, 448 A.2d 163 (1982), cert. denied, --- U.S. ----, 103 S.Ct. 3570, 76 L.Ed.2d --- (1983). Following such a request, authorities have three choices: They may simply hold the suspect for prompt arraignment, ⁹ without summoning an attorney, so long as no interrogation takes place; ¹⁰ they may call the attorney themselves; or the...