State v. Magoon

• Decision Date: 02 April 1968
• Citation: 240 A.2d 853,156 Conn. 328
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Roy A. MAGOON.

Page 853

240 A.2d 853

156 Conn. 328

STATE of Connecticut v. Roy A. MAGOON.

Supreme Court of Connecticut.

April 2, 1968.

Irving H. Perlmutter, New Haven, with whom was William A. Jacobs, Sp. Public Defender, for appellant (defendant).

Peter W. Gillies, Sp. Asst. State's Atty., for appellee (state).

Before KING, C.J., and ALCORN, COTTER, THIM and RYAN, JJ.

ALCORN, Associate Justice.

The defendant was presented in the Superior Court on an information charging him with thirteen counts of arson in violation of § 53-83 of the General Statutes. Following a jury trial, separate verdicts of guilty were returned on ten counts and verdicts of not guilty were returned on three counts. The court accepted the verdicts. Thereafter, the defendant filed a motion to set aside 'the verdict' which the court and counsel treated as a motion to set aside each guilty verdict. Following a hearing on the motion, the court set aside the verdicts on four counts but refused to set aside the verdicts on the remaining six counts. Judgment was rendered on the verdicts on six counts, and an identical sentence to the state prison was imposed on each count, the sentences to run concurrently.

The defendant has appealed from the judgment, assigning error in the finding; in the denial of a motion to suppress the testimony of certain police officers; in the refusal to charge the jury as requested; in the charge as given; and in the denial of the motion to set aside the verdicts on the six counts on which judgment was rendered, the claim being that those verdicts were not supported by the evidence.

During the trial, when the defendant made the motion to suppress, the court heard evidence in the absence of the jury and, consequently, has made a finding of facts on that motion distinct from the finding of the facts claimed to have been proved by the parties before the jury. The assignments of error attack both findings indiscriminately. The defendant is entitled to no correction of any material import in either finding.

We consider first the defendant's claims relating to the motion to suppress. The motion complains, in substance, that the defendant was taken into custody on Friday, January 24, 1964, and was held in custody at state police headquarters in Hartford until about 3:30 p.m. on Saturday, January 25, 1964, that, during that period, he was interrogated, was denied his request for an opportunity to consult counsel and was not warned of his right to remain silent, and that, when his counsel appeared at state police headquarters, he was kept waiting for about two hours before being permitted to consult the defendant.

Because the trial was held subsequent to the decision in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, the rule in the case furnishes the guide for our decision concerning the issues raised by the motion. Johnson v. State of New Jersey, 384 U.S. 719, 721, 86 S.Ct. 1772, 16 L.Ed.2d 882. The rule announced in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, is not applicable inasmuch as that case was decided subsequent to the trial of the present case. Johnson v. State of New Jersey, supra.

At the hearing of the motion the court found the following facts: Between May 23, 1964, and January 5, 1964, there were twelve firse in buildings in the Lake Beseck area in the town of Middlefield. There were many cottages in the area which were occupied only during the summer season, but the defendant and his family were yearround residents of the area. Because of the suspicious circumstances surrounding the fires, they were investigated by the police, who questioned the defendant about eight times either at his home or elsewhere. In the course of the investigation, the defendant complained of the conduct of some police officers. As a result, a hearing was held on his complaint early in January, 1964. The defendant was not questioned concerning the fires at that hearing, but, at its conclusion, he approached Major Samuel S. Rome of the state police and said: 'Any time you wish to talk to me, I will give you my address or telephone number. I will gladly talk with you.' About two weeks later, on Friday, January 24, Major Rome and another officer went to the defendant's place of employment and talked with him, and the defendant agreed to go to Hartford with them. During the ride to Hartford the fires were discussed, and, on arriving at the state police barracks in Hartford about noon, the defendant and the officers lunched in the officers' cafeteria, and, thereafter, during the afternoon and evening Major Rome and other police officers questioned the defendant about the fires. The defendant seemed to enjoy the conversation, asked questions of his own and expressed his own views. At about 9 o'clock that evening he was placed under arrest and was then informed that he had the right to consult an attorney and to remain silent. At no time on Friday did he ask to consult an attorney. At about 9:15 p.m., the defendant's wife was brought to police headquarters, and the defendant, his wife and Major Rome discussed the defendant's right to refrain from making any statement and his right to have an attorney. Both the defendant and his wife felt that an attorney was not necessary at that time. The defendant, however, asked his wife to call Attorney William A. Jacobs if she arrived home before midnight, but she returned home later than that and, in the morning, forgot to call the attorney. On Saturday morning, January 25, the defendant for the first time asked that an attorney be called, whereupon Major Rome telephoned to Attorney Jacobs, the attorney selected by the defendant, and the defendant talked with Jacobs on the telephone. He told Jacobs that he was under arrest and stated the nature of the charges and the amount of his bond. Jocobs then told Major Rome, over the telephone, that he represented the defendant and that he objected to the officer having any further discussion of the case with the defendant. The questioning continued, however, in Rome's office in the presence of the defendant's wife and another officer in a relaxed atmosphere until a little past lunchtime. At about 2:30 in the afternoon Jacobs arrived and, after about fifteen minutes, was allowed to confer with the defendant. At no time either on January 24 or an January 25 was there any reluctance on the defendant's part to discuss the fires. On both days Major Rome asked the defendant to make a written statement, but the defendant refused to do so.

The court concluded that no constitutional rights of the defendant were violated during his interrogation, that at the time of his arrest he was informed of his right to consult counsel and of his right to remain silent, that he arranged to have his wife notify his attorney but she neglected to do so, that subsequently, when he requested the police to call his attorney, they promptly did so and permitted him to confer with his attorney and, finally, that any statements he had made during his interrogation were voluntary. The court denied the motion to suppress and, when the jury were recalled, admitted in evidence such testimony as was not validly objected to concerning the substance of the questioning on January 24 and 25.

The defendant would have us revise the facts found and the conclusions reached by the court, but an examination of the extensive evidence printed in the appendix to the defendant's brief furnishes full support for the court's finding. Conflicting evidence was offered, and it was the province of the trial court to resolve that conflict and determine the facts. State v. Darwin, 155 Conn. 124, 149, 230 A.2d 573; State v. Coulombe, 143 Conn. 604, 608, 124 A.2d 518. It is not the function of this court to decide the facts. Bent v. Torell, 139 Conn. 744, 748, 97 A.2d 270; Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 538, 129 A. 527.

Even if we were to assume that the police investigation had begun to focus on the defendant, a fact not expressly found by the trial court, nevertheless the circumstances disclose no harmful results of the interrogation. Although the police carried out a process of questioning which, under the rule of the Escobedo case, would 'lend itself' to elicting incriminating statements, there is no finding that any incriminating statement was made. The defendant's effort is only to demonstrate that what was said was, in some way, harmful. It is conceded that the defendant gave no statement and that he did not admit any implication in the fires. His statements to the police are described in his brief as 'fragments of conversations' about the motives for the fires. The court did not err in denying the motion to suppress.

No error is assigned in the admission into evidence, before the jury, of testimony by any of the police officers concerning the questioning of the defendant. Exceptions were taken only to rulings on such testimony at the hearing on the motion to suppress. Only one of these is assigned as error on this appeal. As to that it appears that, during the cross-examination of Major Rome, defense counsel sought to elicit whether the witness would have permitted the defendant to leave police headquarters during his interrogation if he had wished to leave. The implication in the stated purpose was to show that the defendant was in custody during all of the period of questioning. The court excluded the question. We need not consider the ruling because, even if the defendant was under restraint at the time of his questioning, the exclusion of the question, even if erroneous, could not be harmful since no incriminating statement affecting the result is shown to have been elicited....