State v. Joyce

• Decision Date: 18 September 1997
• Docket Number: No. AC,AC
• Citation: State v. Joyce, 696 A.2d 993, 45 Conn.App. 390 (Conn. App. 1997)
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. David JOYCE 15603.

Page 993

696 A.2d 993

45 Conn.App. 390

STATE of Connecticut v.David JOYCE

No. AC 15603.

Appellate Court of Connecticut.

Argued Nov. 7, 1996.

Decided June 10, 1997.

Certification Granted Sept. 18, 1997.

[45 Conn.App. 391] Kent Drager, Assistant Public Defender, for appellant (defendant).

Frederick W. Fawcett, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and John C. Smriga, Assistant State's Attorney, for appellee(State).

Before EDWARD Y. O'CONNELL, SCHALLER and FRANCIS X. HENNESSY, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendant appeals ¹ from the judgment of conviction, following a jury trial, of felony murder in violation of General Statutes § 53a-54c, attempted robbery in the first degree in violation of General Statutes §§ 53a-49and53a-134(a)(3), robbery in the first degree violation of General Statutes § 53a-134(a)(4), and criminal possession of a pistol in violation of General Statutes § 53a-217(a).The jury acquitted the defendant of attempted murder and assault in the third degree.

The defendant claims that the trial court improperly (1) admitted evidence of prior arrests and other misconduct at the suppression hearing, (2) restricted the cross-examination of one police officer and the direct examination of another officer, (3) replied to jury questions, (4) allowed the state to inform the jury of the precise underlying crime in the criminal possession of a firearm charge, (5) denied his request to dismiss his trial counsel, and (6) denied his motion for a new trial.We affirm the judgment of the trial court.

The record discloses the following facts.On August 1, 1991, the defendant entered a small grocery store in Bridgeport.As he approached the counter, he grabbed a female customer, held a knife to her throat and threatened to kill her if the clerk, John Hanna, did not give him money.Nicholas Hanna, the store's owner, was sitting on a crate behind John near the cash register as the defendant jumped over the counter to take money from the register.Nicholas grabbed a gun he kept nearby and shot the defendant once in the head.During a struggle for the gun, the defendant shot Nicholas in the forehead, killing him.The defendant shot twice at John, missed him, and fled from the store.Outside the store, the defendant pulled a woman, Joyce Castro, from her car and stole her purse and car.

The defendant was later apprehended in Hartford after the police were told about a shooting victim in an apartment on Cabot Street.The Hartford police located the stolen vehicle three blocks from the Cabot Street address and notified the Bridgeport police.Sergeant Glen Prentice of the Bridgeport police went to Hartford to investigate.On August 2, 1991, Prentice spoke to the defendant at a hospital in Hartford and arrested him on an outstanding warrant in an unrelated case.The defendant was returned to Bridgeport on the evening of August 2, 1991, and he asked to speak to Prentice.The defendant signed a written waiver of his Miranda rights and gave Prentice a written statement.Prentice again questioned the defendant on August 3, 1991, and the defendant gave him a second written statement.On August 4, 1991, Prentice sought to question the defendant again, but he refused to speak to him.

ISUPPRESSION HEARING

The defendant filed a motion to suppress any statements he made to the police on the ground that they violated his federal and state constitutional rights.The motion is general in form and does not refer to specific statements.Our examination of the record indicates, however, that it was apparently intended to suppress the two statements made to Prentice.The defendant claims that the trial court improperly admitted evidence of other arrests and misconduct at the suppression hearing.Furthermore, the defendant claims that the denial of the motion to suppress was based on the impeachment of the defendant by his prior convictions.

The defendant's principal claim at the suppression hearing was based on his prior assault by a Bridgeport police officer, Joseph Procaccini.In that assault, Procaccini struck the defendant while the defendant was in handcuffs.As a result of his conduct, Procaccini was convicted in federal court and sent to prison.The defendant claimed that his statements to Prentice were not voluntary due to his fear of retaliation by Bridgeport police officers because of Procaccini's conviction.

The test for voluntariness of a confession is "whether an examination of all the circumstances shows that the conduct of [the] police was such as to overbear the defendant's will to resist and bring about a confession not freely self-determined."State v. Perry, 195 Conn. 505, 515-16, 488 A.2d 1256(1985).The trial court permitted the state to introduce evidence of all of the defendant's prior arrests, as well as evidence concerning incidents occurring subsequent to the statements of August 2 and 3, 1991.These post-statement incidents included an October 1991 arrest for assaulting a police officer, a January 19, 1992 arrest for interfering with a police officer, and a January 19, 1992 arrest for contempt of court.²The post-statement incidents also included misconduct reports for fighting with correction officers during his pretrial confinement.The state argued that it was necessary for the court to consider the defendant's prior experience with the police, as well as the defendant's conduct after he made the statements to Prentice, to evaluate the defendant's ability to withstand pressure to overbear his will.

After an evidentiary hearing, the trial court made the following findings: "[The defendant] is powerfully built with an exceptionally large neck and upper body and with well-defined muscular arms and biceps.He appears to be a very powerful man.By contrast, quite frankly, Sergeant Prentice appeared to be relatively puny.Prentice was not armed during the time they were alone together at the detective bureau interrogation room, and the defendant was not restrained at that time.The defendant certainly appears to have no fear of authority.From 1979 to 1992, he had a great number of significant arrests and spent a great deal of time in jail or on parole.It is obvious that he has received Miranda warnings many times during this period and he is familiar with police and court procedures.His familiarity with Miranda warnings is especially clear since they are not just given by arresting and interrogating officers but also by the courts.He has had a number of convictions of various degrees of robbery and larceny and the court notes that these are crimes involving honesty and takes special note of them regarding the issue of credibility.There are also a significant number of arrests for violent acts, much of which was directed at police officers and correction officers, even after the Procaccini incident.The defendant is now, apparently, in solitary confinement for striking a correction officer and has had other altercations with correction officers.As a matter of fact, it is noteworthy that only twelve days after the incident with Officer Procaccini, the defendant was arrested again.The Procaccini incident obviously had little or no deterrent effect.Moreover, it would appear that the defendant is easily frustrated.He made this clear by swearing and cursing at the court when he did not like a court ruling during the voir dire, thus forcing the court to remove him from the courtroom.Again he showed no fear of authority, let alone respect.He was not afraid of the court and by his own admission had no fear of being held in contempt, something which his record indicates happened to him before."

The trial court further found that "the defendant has no real fear of authority.It does not find that he is afraid of receiving physical injuries, something he appears to handle and tolerate with surprising ease.Moreover, the court does not find that he was afraid of Prentice.Quite the contrary, he wanted to talk to Prentice and he asked to do so.He was alone for a considerable period of time with the much smaller Prentice, who was unarmed and the defendant was not restrained.Prentice did not strike him during the interview in fact he gave him food."

Finally, the trial court concluded that "[i]t is not credible that this exceptionally powerful man gave a false involuntary statement just to get out of the interview room so that he could lie down and rest when all he had to do is stop talking."

The burden is on the state to prove by a preponderance of the evidence that the statements were voluntary.State v. Smith, 200 Conn. 465, 477, 512 A.2d 189(1986).In analyzing an issue of voluntariness, our usual deference to the trial court's fact-finding is qualified by the necessity for an independent and scrupulous examination of the entire record to ascertain whether the trial court's finding is supported by substantial evidence.Id. at 478, 512 A.2d 189.

Having examined the record and applied the appropriate standard of review, we conclude that there was substantial evidence to support the trial court's finding that the defendant's will was not overcome by the police and therefore that his statements were voluntary.Admission of the challenged evidence of the defendant's prior arrests and misconduct was necessary for the trial court fairly to consider the defendant's ability to withstand pressure to overbear his will.

IIRESTRICTION OF CROSS-EXAMINATION AND DIRECT EXAMINATION

The defendant next claims that the trial court improperly restricted his cross-examination of Prentice and direct examination of Officer David Daniels of the Bridgeport police concerning bias against the defendant that may have arisen as a result of the defendant's 1990 assault by Procaccini.The defendant claims that the trial court's restriction of his cross-examination violated his sixth amendment constitutional right of confrontation.The thrust...