State v. Hasfal

• Citation: 106 Conn.App. 199,941 A.2d 387
• Decision Date: 04 March 2008
• Docket Number: No. 26845.,26845.
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Christopher HASFAL.

941 A.2d 387

106 Conn.App. 199

STATE of Connecticut v. Christopher HASFAL.

No. 26845.

Appellate Court of Connecticut.

Argued November 15, 2007.

Decided March 4, 2008.

Brendon P. Levesque, special public defender, with whom were Daniel J. Krisch and, on the brief, Michael S. Taylor and Philip C. Pires, legal intern, for the appellant (defendant).

Melissa L. Streeto, assistant state's attorney, with whom, on the brief, were James E. Thomas, former state's attorney, Adam B. Scott, supervisory assistant state's attorney, and Kathleen A. Dwyer, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and HARPER and PETERS, Js.

PETERS, J.

In this criminal appeal from a conviction of the crimes of violation of a protective order and possession of narcotics, the dispositive issue is whether the defendant, while being interrogated by the police in his East Hartford motel room after 12:30 a.m., was in custody when he incriminated himself in response to a police officer's question. The defendant's inculpatory admission triggered his arrest for criminal violation of a protective order, and that arrest, in turn, resulted in the discovery of crack cocaine in his possession during a standard search at the station house. The defendant maintains in this appeal, as he did at trial, that the trial court should have granted his motion to suppress the inculpatory statement and the subsequently discovered narcotics because the police improperly failed to give him Miranda warnings¹ prior to initiating their interrogation. Because we agree with the trial court that the defendant was not then in custody, we affirm its judgment convicting him as charged.

In a substitute information filed on May 6, 2006, the state charged the defendant, Christopher Hasfal, with the crimes of criminal violation of a protective order in violation of General Statutes § 53a-223² and possession of narcotics in violation of General Statutes § 21a-279(a).³ After a jury trial, he was convicted on both counts. The court sentenced the defendant to a total effective term of seven years imprisonment, execution suspended after three years, and five years of probation with special conditions. The defendant has appealed.

The facts underlying the defendant's interrogation are undisputed. The defendant first met the victim in 2002 at a lounge in East Hartford where she worked as a part-time exotic dancer. The two developed an intimate relationship that, in time, turned sour. On November 4, 2003, following the defendant's arrest resulting from a domestic incident with the victim, a protective court order was issued against the defendant pursuant to General Statutes § 46b-38c(e).⁴ The protective order expressly required the defendant to "[r]efrain from entering the [v]ictim's place of employment." In violation of that order, on the afternoon of December 8, 2003, the defendant entered the lounge and seated himself at the bar. Later that evening, the victim went to the East Hartford police department and lodged a complaint against the defendant.

Upon receiving the complaint, Officer Jeffrey Cutler of the East Hartford police department verified that a valid protective order was in place, which precluded the defendant from entering the victim's place of employment. Cutler and Officer Kenneth Sullivan went to the lounge and corroborated that the victim had been working there that day.

The officers then traveled to East Hartford's Madison Inn, the defendant's temporary residence. The officers arrived at the motel after 12:30 a.m. on December 9, 2003. When Cutler knocked on the defendant's door and announced that he was with the East Hartford police department, the defendant permitted the officers to enter. Cutler asked the defendant if he had been at the victim's place of employment, and the defendant answered affirmatively. Cutler immediately handcuffed the defendant, telling him that he was under arrest.

After arresting the defendant, Cutler took him to the East Hartford police department. As part of the booking process, the defendant was subjected to a standard search incident to arrest. While removing his socks, the defendant "cupped" the underside of his foot with his hand. When he removed his hand from his foot a glassine bag fell to the floor. The bag contained a white granular substance that tested positive for crack cocaine.

On May 10, 2005, shortly after the commencement of the defendant's trial, he filed the motion to suppress that is the subject of his present appeal. In the motion, he claimed that (1) at the time of his inculpatory statement, he had been in custody and should not have been interrogated without having been advised of his Miranda rights, and (2) but for the improper taking of his statement, there would have been no grounds to search him and to discover the crack cocaine. After an evidentiary hearing outside the presence of the jury, at which Cutler and the defendant testified, the court denied the defendant's motion. The court expressly found that a reasonable person in the defendant's situation would not have believed that he was in custody.

As a result of the court's ruling, the jury heard Cutler's testimony regarding the defendant's inculpatory statement. The jury returned a verdict of guilty on both counts of the information. Accepting the verdict of the jury, the court sentenced the defendant to a term of imprisonment. The defendant has appealed. Additional facts will be set forth as necessary.

The dispositive issue in this appeal is whether the police should have given the defendant Miranda warnings in his motel room before questioning him about his earlier whereabouts. The defendant maintains that a reasonable person in his circumstances would have believed that he or she was, in police custody at the time the defendant incriminated himself. We disagree.

Our Supreme Court has held that "[t]wo 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).

The state does not dispute that the facts of record establish that Cutler subjected the defendant to interrogation when he was questioned in his motel room. "[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." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

The controlling issue, therefore, is whether the defendant was in police custody at the time of his interrogation. Miranda warnings are not required before "[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning . . . in the fact-finding process . . . ." Miranda v. Arizona, supra, 384 U.S. at 477, 86 S.Ct. 1602. Our Supreme Court has stated: "Although we are concerned with protecting defendants against interrogations that take place in a police-dominated atmosphere, containing inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely . . . this court has also determined that [a] person, even if a suspect in a crime, is not in custody every time he is asked questions . . . ." (Citation omitted; internal quotation marks omitted.) State v. Britton, 283 Conn. 598, 609, 929 A.2d 312 (2007); see also Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). The defendant bears the burden of proof for establishing custody. State v. Kirby, 280 Conn. 361, 393, 908 A.2d 506 (2006).

A two part standard of review governs appellate review of a trial court's determination that a defendant was not "in custody" when he was interrogated by the police. We defer to the trial court's findings of fact unless they are clearly erroneous, but we conduct a plenary, scrupulous examination of the record in order to make an independent determination as to whether or not the defendant was "in custody." State v. Pinder, 250 Conn. 385, 409-12, 736 A.2d 857 (1999).

After the suppression hearing, the trial court made the following findings of fact. The East Hartford police were investigating a complaint that the defendant had violated a protective order. Sometime after 12:30 a.m. on the morning of December 9, 2003, two police officers went to the defendant's motel room, knocked and identified themselves. The defendant voluntarily answered his door and permitted the officers to enter his room. During the subsequent interrogation, the defendant "was compliant" and "was allowed" to interrupt the questioning to use his telephone. When he was asked whether he had been to the complainant's place of employment, the defendant responded affirmatively, after which he was taken into custody.⁵

These factual findings are unchallenged on appeal and therefore are not clearly erroneous. Indeed, they are fully supported by additional testimony at the trial itself.⁶

Our plenary review of this factual record requires us to decide whether, in light of all the circumstances surrounding the defendant's interrogation, a reasonable person in the defendant's position would have believed that his or her freedom of movement was restrained to the degree associated with a formal arrest. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983); State v. Britton, supra, 283 Conn. at 604, 929 A.2d 312. In conducting this inquiry, our courts often have utilized the "free to leave" test, pursuant to which Miranda warnings are required only if, under the circumstances, a reasonable person would believe that he or she was not free to leave the scene of...