State v. Jenkins, 82 Conn. App. 802 (CT 5/11/2004)

• Decision Date: 11 May 2004
• Docket Number: (AC 23826).
• Citation: State v. Jenkins, 82 Conn. App. 802 (CT 5/11/2004), 82 Conn. App. 802, 847 A.2d 1044 (Conn. 2004)
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT <I>v.</I> WALTER JENKINS.

Page 802

82 Conn. App. 802

STATE OF CONNECTICUT

v.WALTER JENKINS.

(AC 23826).

Appellate Court of Connecticut.

Argued February 9, 2004.

Officially released May 11, 2004.

Syllabus

Convicted, on a conditional plea of nolo contendere, of the crimes of robbery in the first degree and attempt to commit robbery in the third degree in connection with a robbery at a post office, the defendant appealed to this court, challenging the trial court's denial of his motion to suppress a statement that he had made to a police officer and a postal inspector in which the defendant admitted his involvement in the robbery.The defendant, who had been arrested, taken into police custody and read his Miranda rights, initially had invoked his right to counsel and declined to speak with the officer without an attorney present, but subsequently had initiated a conversation with the officer, which led to his signing of a waiver of rights form and his giving of the challenged statement.Held:

1.The trial court properly denied the defendant's motion to suppress the statement and concluded that the state had met its burden of proving that the defendant had initiated the conversation with the police officer that had prompted the resumption of questioning; there was substantial evidence in the record to support the decision of that court, which was free to weigh the conflicting evidence and to credit the testimony of the officer and the inspector that they had ceased interviewing the defendant once he had invoked his right to counsel and had resumed questioning only after the defendant had initiated a conversation with the police officer and had signed a waiver of rights form.

2.The defendant could not prevail on his claim that the trial court improperly found that his statement was given knowingly, voluntarily and intelligently, there being no evidence that the officer who prepared the defendant's statement from his interview had made any threatening statements to the defendant, or that the statement was not the product of a free and unconstrained choice.

3.The defendant's claim that the trial court abused its discretion in denying his request to open his suppression hearing to allow him to testify was not reviewable, it being outside the scope of the statute(§ 54-94a) applicable to appeals following conditional pleas of nolo contendere; furthermore, this case did not present a good cause exception to the general rule that claims not raised in accordance with the provisions of § 54-94a are not reviewable.

Procedural History

Substitute information charging the defendant with two counts of the crime of kidnapping in the first degree, and with one count each of the crimes of robbery in the first degree, conspiracy to commit robbery in the first degree, conspiracy to commit kidnapping in the first degree and attempt to commit robbery in the third degree, brought to the Superior Court in the judicial district of Tolland, where the court, J. Kaplan, J., denied the defendant's motion to suppress certain evidence; thereafter, the defendant was presented to the court, Sferrazza, J., on a conditional plea of nolo contendere to the crimes of robbery in the first degree and attempt to commit robbery in the third degree; subsequently, the state entered a nolle prosequi as to the charges of kidnapping in the first degree, conspiracy to commit robbery in the first degree and conspiracy to commit kidnapping in the first degree; judgment of guilty, from which the defendant appealed to this court.Affirmed.

Jeremiah Donovan, special public defender, for the appellant(defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, was Matthew C. Gedansky, state's attorney, for the appellee(state).

Lavery, C. J., and McLachlan and Dupont, Js.

Opinion

LAVERY, C. J.

The defendant, Walter Jenkins, appeals from the judgment of conviction rendered by the trial court subsequent to his conditional plea of nolo contendere to the charges of robbery in the first degree in violation of General Statutes § 53a-134 (a)(4), and attempt to commit robbery in the third degree in violation of General Statutes §§ 53a-49 (a)(2)and53a-136.On appeal, the defendant claims that the court(1) improperly determined that he had initiated discussion with the police after having properly invoked his right to counsel, thus allowing questioning to recommence, (2) improperly found that his confession was given knowingly, voluntarily and intelligently, and (3) abused its discretion by refusing to open the suppression hearing in order to allow him to testify.We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's appeal.Shortly after 3 p.m. on April 12, 1999, three males, including the defendant, entered the United States post office in Andover, supposedly to mail a package.As a clerk was processing the package, the men jumped over the counter.One of the men was brandishing what appeared to be a firearm.The defendant emptied the cash drawer while his companions seized a money order imprinting machine and ordered one of the clerks to open the safe.The safe was opened and depleted of its contents.

The individual with the firearm forced two female clerks into a bathroom at gunpoint.A third clerk remained in hiding.The men then left the post office to meet a fourth accomplice whose role was to drive the getaway vehicle.That individual, however, failed to meet them.The three men attempted to use keys they had stolen from one of the postal clerks to start a car in the parking lot, but chose the incorrect vehicle.They then assaulted a female postal customer outside of the post office in an attempt to steal her vehicle.She did not, however, relinquish her keys, and the men subsequently fled from the scene on foot.Another postal customer in the parking lot witnessed the assault.

At that point, the fourth individual appeared with the getaway vehicle and picked up the defendant and one of his accomplices.The car proceeded west to Wales Road in Andover.The men exited the vehicle and attempted to locate the man they had left behind.They also removed the clothing they wore during the robbery and disposed of it in a small culvert.They then fled on foot.State police captured the defendant within one hour of the robbery.State police also apprehended two of his partners within a couple of hours.The three men were taken to the state police barracks in Colchester for questioning, where they ultimately gave written statements concerning the robbery and assault.

Richard Bedard, a detective with the state police, and Edward Cahill, an inspector with the United States Postal Service met with the defendant.The defendant was advised of his Miranda rights by Bedard.He was under arrest and in police custody at that time.The defendant signed the notice of rights form, acknowledging that he had been advised of his rights but did not sign the waiver section of the form.He told Bedard that he did not want to waive his rights or speak with the detective without an attorney present and that he wanted to make a telephone call.Bedard did not question the defendant after that.He allowed the defendant to make a telephone call.

Shortly thereafter, Bedard processed the defendant by fingerprinting and photographing him and completing a uniform arrest record.He then returned the defendant to a cell.While Bedard was conducting a property inventory of the defendant's personal effects in a room adjacent to the defendant's cell, the defendant called out to him.The defendant informed Bedard that he wanted to be interviewed and to give a statement.Bedard told the defendant that this was unnecessary, but the defendant again expressed his desire to give a statement.Bedard summoned Cahill, and the three proceeded to an interrogation room.

Bedard again advised the defendant of his rights.The defendant read and signed the notice and waiver of rights form, and he initialed the waiver portion of the form.The defendant implicated himself and three individuals, minimizing his own involvement.The defendant never requested an attorney during the questioning, which lasted one and one-half hours.At the conclusion of the interrogation, Bedard typed the defendant's statement, which the defendant reviewed and signed.Bedard included in the statement the circumstances surrounding the defendant's earlier invocation of his right to counsel.Bedard also recorded in the statement that it was the defendant who had reinitiated conversation with himself and Cahill.¹

On September 24, 2002, the defendant filed a motion to suppress the aforementioned statement.A hearing was held on the motion on October 2, 2002.The court denied the motion, ruling that the state had met its burden of proof on all issues, most significantly that it was the defendant who initiated conversation with the police after having previously invoked his right to counsel.The court also found that the defendant had knowingly and intelligently waived his right to counsel after being advised of his rights a second time.The court also refused to grant the defendant's subsequent request to open the hearing in order to permit him to testify.

On October 8, 2002, the defendant entered a conditional plea of nolo contendere to the charges of robbery in the first degree in violation of § 53a-134 (a)(4), and attempt to commit robbery in the third degree in violation of §§ 53a-49 (a)(2)and53a-136.The plea was conditioned on his right to appeal from the court's denial of his motion to suppress.The court sentenced the defendant to fifteen years imprisonment, execution suspended after twelve years, with five years probation.This appeal followed.

I

The defendant first claims that the court improperly determined that he had reinitiated discussion with Bedard and Cahill.Specifically, the defendant argues that the...