State v. Irving, 9677

Decision Date21 May 1992
Docket NumberNo. 9677,9677
Citation606 A.2d 17,27 Conn.App. 279
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Wendell IRVING.

Leopold P. DeFusco, Special Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Asst. State's Atty., with whom were James Turcotte, Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., for appellee (State).

Before DALY, LAVERY and HEIMAN, JJ.

LAVERY, Judge.

After a jury trial, the defendant was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70(a) and failure to appear in the first degree in violation of General Statutes § 53a-172. In this appeal, the defendant claims that the trial court improperly (1) allowed the state to introduce his statements to a police officer without first requiring the state to prove that the officer had properly advised him of his rights and that the defendant had waived them, (2) refused to allow cross-examination of the victim concerning a felony charge pending against her, and (3) permitted the state to cross-examine him concerning a January 6, 1978 robbery conviction for the purpose of impeaching his credibility. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In the early morning hours of March 12, 1989, the victim went downstairs in her apartment to investigate a noise in her kitchen. There, she found the defendant and a woman she knew as Ray. The victim ordered them to leave the apartment, but they refused. The defendant then grabbed the victim and dragged her upstairs, where, for the next two hours, he sexually assaulted her. During the sexual assault, Ray locked the defendant and the victim in the bedroom, disconnected all the telephones, and looted the apartment. Ray then fled from the scene.

After the assault, the defendant apologized to the victim, and asked her to tell the police that someone else had assaulted her. The victim agreed to do so. The defendant then helped the victim connect her telephone, and she called the police. When the police arrived, the victim told them that she had been sexually assaulted, and her apartment had been burglarized. She further told the police that she had called the defendant after the assault occurred. One of the officers, Detective John Flynn, then took the victim to the hospital. En route, the victim told Flynn that the defendant was her assailant. At the same time, the defendant was assisting other officers in their search for Ray. Flynn transmitted this information to the officers who were with the defendant.

After leaving the victim at the hospital, Flynn went to police headquarters and interviewed the defendant, who had been arrested on the basis of the information from the victim. The defendant denied having sexual relations with the victim. After Flynn told the defendant how serious the matter was, however, he admitted having had consensual sexual relations with the victim.

At trial, Flynn testified that after he advised the defendant of his constitutional rights, the defendant indicated that he understood his rights and that he would speak with Flynn. Flynn then interviewed the defendant. According to Flynn, the defendant first denied having sexual relations with the victim, but later admitted having had consensual sexual relations with her. When he took the stand, however, the defendant denied having sexual relations with the victim, stating that he "did and didn't" have sex with her, because he had paid the victim for sex, but he was unable to complete the act because Ray entered the room. On cross-examination, the defendant denied that Flynn had advised him of his constitutional rights before questioning.

The defendant first claims that the trial court improperly allowed the state to introduce statements made by the defendant to Flynn without first requiring the state to prove that Flynn had properly advised the defendant of his rights and that the defendant had waived them. Such advisement and waiver is necessary when a suspect is subjected to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694 (1966); State v. Madera, 210 Conn. 22, 48-49, 554 A.2d 263 (1989). The defendant failed to raise this claim at trial either by way of an objection to the admission of Flynn's testimony or by pressing a motion to suppress any statement he made to Flynn. He thus seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

"The state has the burden of proving by a preponderance of the evidence that the defendant knowingly and intelligently waived his Miranda rights, including his right to remain silent.... A valid waiver is defined, in accordance with the well known test of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), as the intentional relinquishment or abandonment of a known right.... [T]he record need not show a specific expression of relinquishment of rights.... Instead, a waiver may be 'inferred from the actions and words of the person interrogated' ... and from his 'course of conduct.' ..." (Citations omitted.) State v. Barrett, 205 Conn. 437, 449-50, 534 A.2d 219 (1987). Although we are required to give every reasonable presumption against the waiver of a fundamental constitutional right; see Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023; In re Manuel R., 207 Conn. 725, 739, 543 A.2d 719 (1989); State v. Smith, 18 Conn.App. 368, 374, 558 A.2d 257 (1988); the defendant in the present case must still satisfy each of the conditions set forth in State v. Golding, supra, if we are to review this unpreserved constitutional claim. 1

Under the first Golding condition, the defendant can prevail only if there is an adequate record for our review. State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823. The burden of providing an adequate record rests on the defendant. State v. Leary, 217 Conn. 404, 416, 587 A.2d 85 (1991); State v. Suarez, 23 Conn.App. 705, 708, 584 A.2d 1194 (1991). "If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant's claim." State v. Golding, supra. We conclude that the defendant's claim does not merit review under Golding because the record was not properly preserved.

In State v. Anderson, 209 Conn. 622, 553 A.2d 589 (1989), our Supreme Court considered whether a criminal defendant had waived his right to counsel. In that case, the defendant allegedly requested counsel on two occasions. Id., at 629-31. At trial, however, the only evidence presented on the waiver issue was the testimony of two officers that, after the defendant was given his Miranda warnings, he stated that he might want to call his attorney at some future time. Id., at 629, 553 A.2d 589. The defendant argued that the admission of his statements deprived him of his constitutional rights and a fair trial. Id., at 625. The court declined to review the defendant's claim because the record did not adequately support his claim. Id., at 634.

On direct examination, Flynn testified on the advisement and waiver issue as follows:

"[Prosecutor]: Upon you interviewing the defendant, what was the first thing you did, Detective?

"[Flynn]: I advised him of his constitutional rights.

"[Prosecutor]: Okay. And did you ask him whether he understood these rights?

"[Flynn]: Yes.

"[Prosecutor]: Did you ask him if he would speak to you?

"[Flynn]: Yes, I did.

"[Prosecutor]: Did he indicate that he would speak to you?

"[Flynn]: He indicated that he understood his rights and he was willing to talk to me."

On cross-examination, the defendant testified as follows:

"[Prosecutor]: Then, at that point you were brought down for processing in the New Haven police department, is that correct?

"[Defendant]: Yes, I was.

"[Prosecutor]: And there came a time when Detective Flynn came to see you, is that correct?

"[Defendant]: Yes, he did....

"[Prosecutor]: Now, he advised you of your rights at that point, is that correct?

"[Defendant]: No one advised me of nothing.

"[Prosecutor]: Remember, throughout the whole night?

"[Defendant]: No one advised me of nothing.

"[Prosecutor]: They never read off a blue card or a piece of paper what your rights are?

"[Defendant]: No, they didn't." 2

"Had the defendant objected to the detective's testimony at trial or moved to suppress it on the ground he now claims, a hearing or questioning would have provided a factual basis for his claim and the record would have been properly preserved." State v. Anderson, supra, 209 Conn. at 633, 553 A.2d 589. In this case, the defendant failed to object to Flynn's testimony. 3 On the basis of the undeveloped state of the record in this case, we cannot, without becoming factfinders, determine whether the defendant waived his Miranda rights.

In addition, the defendant filed a motion for discovery requesting any relevant statements made by the defendant that the state intended to use at trial. The trial court granted this motion and the state complied. Also, the defendant filed a motion to suppress the statements he had made to Flynn, stating in the motion that the statements were made without a knowing, voluntary and intelligent waiver of his privilege against self-incrimination. There was no hearing on this motion and it was not pursued by the defendant.

The foregoing makes it clear that, at the time of trial, defense counsel was in fact aware of the advisement and waiver issue. Just as the defendant in State v. Anderson, supra, failed to file a motion to suppress his statements or to object to their admission, the defendant in the present case failed to follow through on the...

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