State v. Ostroski

• Decision Date: 16 June 1981
• Citation: 440 A.2d 166,184 Conn. 455
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Richard OSTROSKI.

Page 166

440 A.2d 166

184 Conn. 455

STATE of Connecticut v. Richard OSTROSKI.

Supreme Court of Connecticut.

Argued April 8, 1981.

Decided June 16, 1981.

Joette Katz, Asst. Public Defender, New Haven, with whom, on the brief, were Jerrold H. Barnett, Public Defender, and Michael Connor, Jr., Asst. Public Defender, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty. and Richard Maloney, Asst. State's Atty., for appellee (state).

Before BOGDANSKI, C. J., and SPEZIALE, PETERS, HEALEY and ARMENTANO, JJ.

PER CURIAM.

The defendant was indicted for the murder of a young woman in her Canton apartment. After a trial before the court, consisting of a panel of three judges of the Superior Court, ¹ the defendant was found guilty and sentenced to a prison term of not less than twenty-five years nor more than life. During the trial the court heard evidence and argument on the defendant's motion to suppress "potential testimony or other evidence that was obtained in violation of the constitution or laws of the United States or the State of Connecticut." In denying the motion the court orally stated that the defendant was under "apparent custodial interrogation." We remand the case for further articulation of the issue of custody so that this court can properly review the admissibility of the defendant's incriminating statements and various items of physical evidence.

During the night of April 11-12, 1977, a nineteen-year-old woman was brutally stabbed to death in her Canton apartment. When the defendant learned that Captain McDonnell of the state police wanted to talk with him, the defendant called the state police barracks at Litchfield from a telephone booth in New Milford. Because the defendant was unfamiliar with the area, a New Milford police officer was sent to the defendant's location. In his own car the defendant followed the officer to the New Milford police station. From there the defendant together with his wife and child rode in a state police car to the Litchfield barracks with a state trooper.

Upon arrival at the Litchfield barracks the defendant was informed that he was not under arrest. Captain McDonnell read aloud from a form listing the Miranda rights and the defendant read aloud the portion of the form indicating that he understood those rights and chose not to exercise them. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). During the ensuing conversation the defendant made incriminating statements and authorized an examination of his person and his property. The defendant was then formally placed under arrest.

The defense counsel at trial objected to the admission of the defendant's statements on fifth amendment grounds, contending primarily that the defendant had asserted his right to remain silent but the police did not then terminate the interview. Objection also was raised to the admission of certain physical evidence as being the fruit of the inadmissible confession.

In ruling that the defendant's Miranda rights were not violated, the trial court orally stated that the defendant was under "apparent custodial interrogation." ² When asked by defense counsel to elaborate, the trial court described its finding of custody in these words: "(I)t is apparent custodial interrogation, he was given his rights, we focused it on the basic one that you challenged, the right to cease interrogation, that is what we came down to, and that is, I think, the nub of the whole argument that the Defendant raised, so we didn't go into superfluous matters that didn't seem to bear on this particular issue."

The ambiguity of the word "apparent" in the phrase "apparent custodial interrogation" and the trial court's own explanation of its thought processes indicate that the "finding" that the defendant was in custody at the time of his April 16, 1977 interview with the state police was merely an hypothesis which the trial court assumed in order to reach the fifth amendment issue of the protection of the defendant's right to remain silent. Whether and when a person is taken into custody is a question of fact. State v. Derrico, 181 Conn. 151 pp. 160, 434 A.2d 356 (41 Conn.L.J., No. 50, pp. 7, 10), cert. denied, 449 U.S. 1064, 101 S.Ct. 789, 66 L.Ed.2d 607 (1980). It is the function of the trial court, not this court, to find facts. Whether or not the defendant was in custody is a critical threshold question which must be determined before we can properly review the claims made in this appeal. It is, therefore, necessary to remand this case for a further articulation of the trial court's decision on the custody issue.

On appeal the defendant renews his fifth amendment claims and for the first time also claims fourth amendment violations. He then urges suppression of his incriminating statements and certain physical evidence obtained after those violations. The defendant insists that he was unreasonably seized without probable cause at the time he left his own car at New Milford and entered the state police car for the ride to Litchfield, or at least at the time he entered the Litchfield barracks. Although at oral argument before us the state conceded that at the time of the defendant's arrival at the Litchfield barracks there was no probable cause to arrest or detain the defendant, ³ the state argued that the defendant was not in custody during the interrogation there.

Although the fourth amendment claims were not distinctly raised at trial, the defendant has urged that these claims be considered under the "new constitutional right" branch of the exceptional circumstances doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). See Practice Book § 3063. The claimed "new constitutional right" is based on the posttrial decision of Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). In Dunaway the United States Supreme Court ruled that statements made by the defendant in the police station interrogation room were inadmissible because of their causal connection with the earlier fourth amendment violation where, without probable cause, a police cruiser was sent to find the suspect and bring him in for questioning; and although no formal arrest was made, the police admitted that they would have compelled the defendant to come with them if he had resisted. Because of the necessity to remand for a further articulation of the trial court's finding of "apparent" custody for fifth amendment purposes and in the interest of justice, we direct the trial court to include in its articulation of the custody issue a consideration of the fourth amendment right to be "secure in their persons ... against unreasonable searches and seizures." U.S. Const., amend. IV. See United States v....