State v. Jones

• Citation: 691 A.2d 14,44 Conn.App. 476
• Decision Date: 01 May 1997
• Docket Number: No. 15591,15591
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Orion JONES.

Page 14

691 A.2d 14

44 Conn.App. 476

STATE of Connecticut v. Orion JONES.

No. 15591.

Appellate Court of Connecticut.

Argued Nov. 6, 1996.

Decided March 18, 1997.

Certification Denied May 1, 1997.

Neal Cone, Assistant Public Defender, for appellant (defendant).

Susann E. Gill, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and John C. Smriga, Harry Weller, and Mary H. Lesser, Assistant State's Attorneys, for appellee (State).

Before FOTI, LAVERY and SCHALLER, JJ.

SCHALLER, Judge.

The defendant appeals ¹ from the judgment of conviction, rendered after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a, kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a, assault in the first degree in violation of General Statutes § 53a-59 (a)(1), robbery in the first degree in violation of General Statutes § 53a-134 (a)(1), and larceny in the first degree in violation of General Statutes § 53a-122 (a)(3). He claims that the trial court improperly (1) failed to suppress his oral confession, (2) admitted the typewritten document containing his admissions and permitted the document to be referred to at trial as the "defendant's statement," (3) admitted his confession in violation of his due process rights under the state constitution because the police had failed to record the confession electronically, (4) admitted hearsay statements of a police officer, and (5) instructed the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of May 11, 1993, Rodney Trovarelli left his home for work. As Trovarelli was entering his blue Isuzu Rodeo, which was parked in his driveway, the defendant jumped into the backseat, held a gun to Trovarelli's head and ordered him to drive. After driving a short distance, the defendant ordered Trovarelli to stop at an abandoned house at 51 Green Street in Bridgeport and forced him into the back of the house. The defendant took Trovarelli's wallet, ordered him to lie facedown on the floor and shot him two times in the back of the head. The defendant then fled the house and drove away in Trovarelli's vehicle. The defendant drove Trovarelli's vehicle around Bridgeport, and, later that day, parked the vehicle in the driveway of his aunt, Terry Shaw Weaver.

During the morning of May 11, 1993, Trovarelli's supervisor called Linda Trovarelli and told her that her husband had not reported for work. Linda Trovarelli became worried because she had not heard from her husband since he had left early that morning.

Sometime in the afternoon of May 11, 1993, Weaver became suspicious about the fact that the defendant had parked a new Isuzu Rodeo in her driveway. She looked in the vehicle's glove compartment and found the Trovarellis' telephone number. She called the number and Linda Trovarelli answered. Weaver asked her if she was selling a blue jeep or if she used drugs. Linda Trovarelli replied that she did not use drugs and that she owned a blue jeep but that it was not for sale. She then asked Weaver if she knew where Rodney Trovarelli was. Weaver responded that she did not know where he was, but that she saw a young man driving the Trovarellis' vehicle in the Bridgeport area. She warned Linda Trovarelli not to go looking for the vehicle. Later that evening, the Bridgeport police discovered Rodney Trovarelli at 51 Green Street. He was transported to Bridgeport hospital. He survived the shooting, but was severely injured.

The next day, the defendant, at the urging of his cousin, Lyle Hassan Jones (Jones), went to the Bridgeport police station. On the way to the station, Jones spotted Officer Robert Moss of the Bridgeport police, whom he had known for a number of years. Jones spoke briefly with Moss while the defendant waited in the car. After their conversation, Moss called the Bridgeport police station and was told that an injured person had been found in a building on Green Street. Moss then drove to the police station, and Jones and the defendant followed in their own vehicle.

Upon arriving at the police station, the defendant and Jones met with Joseph Sherbo, the detective assigned to the case. Sherbo met with the defendant and Jones briefly in the lineup room. He then moved the discussion into the police interview room. In the interview room, Sherbo advised the defendant of his Miranda rights. The defendant waived his Miranda rights and confessed to kidnapping and shooting Rodney Trovarelli and then taking his vehicle.

I

The defendant first claims that the trial court improperly failed to suppress an inculpatory oral statement made by him to the police. He claims that because he refused to sign the typed document that contained his admissions, his earlier actions constituting a knowing, intelligent and voluntary waiver were vitiated. We are not persuaded.

Prior to trial, the defendant filed a motion to suppress the oral confession that he gave to Sherbo at the police station. A suppression hearing was conducted, at which the state presented evidence concerning the circumstances under which the defendant's statement was made. After the hearing, the trial court denied the defendant's motion to suppress the statement. On appeal, the defendant argues that the state failed to meet its burden of establishing that he waived his constitutional privilege against self-incrimination, as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). ²

"To be valid, a waiver must be voluntary, knowing, and intelligent.... The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights.... Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case.... Although the issue is therefore ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence." (Citations omitted; internal quotation marks omitted.) State v. Stanley, 223 Conn. 674, 686, 613 A.2d 788 (1992). A trial court's findings will be reversed only if they are clearly erroneous. Id., at 687, 613 A.2d 788.

"Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights.... Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant's experience with the police and familiarity with the warnings ... his level of intelligence, including his IQ ... his age ... his level of education ... his vocabulary and ability to read and write in the language in which the warnings were given ... intoxication ... his emotional state ... and the existence of any mental disease, disorder or retardation." (Citations omitted; internal quotation marks omitted.) State v. Toste, 198 Conn. 573, 580-81, 504 A.2d 1036 (1986).

Our scrupulous review of the record reveals that substantial evidence exists to support the trial court's findings that the defendant knowingly, intelligently and voluntarily waived his Miranda rights. Sherbo read the defendant his Miranda warnings. The defendant and Sherbo initialed a card on which the Miranda warnings were written. Sherbo then showed the defendant a waiver form. The defendant completed and signed the waiver form indicating that he was eighteen years old, that he had completed the eleventh grade, and that he could read and write English. Next, Sherbo read the defendant each of the six paragraphs contained on the waiver form. The defendant placed his initials next to each paragraph to signify that he read and understood the warnings contained therein. The defendant signed his name beneath the sixth paragraph, which is the waiver of rights section. Jones also signed the waiver form as a witness to the waiver of rights procedure. Sherbo testified that the defendant appeared coherent, calm and collected during the entire interview.

After the defendant waived his Miranda rights, he made an oral statement in which he admitted stealing Rodney Trovarelli's vehicle, driving him to the house on Green Street, stealing his wallet and shooting him. Sherbo testified that the procedure he used in taking the defendant's statement was one in which he would pose a question to the defendant, type the question, and then type the response. After Sherbo completed typing the defendant's statement, the defendant refused to sign it. The defendant claims that his refusal to sign the statement vitiated his earlier waiver of his Miranda rights. "While the refusal to sign a ... written statement is a 'relevant factor in determining whether an individual knowingly, intelligently, and voluntarily waived his privilege'; State v. Derrico, [181 Conn. 151, 165, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S.Ct. 789, 66 L.Ed.2d 607 (1980) ]; it is not controlling and 'may be outweighed by affirmative conduct indicative of a knowing and intelligently made decision not to remain silent.' State v. Harris, [188 Conn. 574, 452 A.2d 634, cert. denied, 460 U.S. 1089, 103 S.Ct. 1785, 76 L.Ed.2d 354 (1983) ]." State v. Shifflett, 199 Conn. 718, 733, 508 A.2d 748 (1986). Here, the defendant's conduct clearly indicated that he made a voluntary, knowing and intelligent waiver of his Miranda rights. We conclude, therefore, that the trial court properly refused to suppress the defendant's confession.

II

The defendant next claims that it was improper for the trial court to admit the typewritten document containing the defendant's admissions and to allow the...