State v. Perez

• Decision Date: 12 August 2003
• Docket Number: (AC 16917)
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. OMETRIUS PEREZ

78 Conn. App. 610

828 A.2d 626

STATE OF CONNECTICUT v. OMETRIUS PEREZ

(AC 16917)

Appellate Court of Connecticut.

Submitted on briefs May 2, 2003.

Officially released August 12, 2003.

Foti, Dranginis and Flynn, Js. Ometrius Perez, pro se, the appellant (defendant) filed a brief.

Walter D. Flanagan, state's attorney, Judith Rossi, executive assistant state's attorney, and David M. Holzbach, assistant state's attorney, filed a brief for the appellee (state).

Opinion

FOTI, J.

The defendant, Ometrius Perez, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), burglary in the first degree in violation of General Statutes § 53a-101 (a) (1) and larceny in the second degree in violation of General Statutes § 53a-123.¹ On appeal, the defendant claims that (1) the trial court improperly denied his motion to suppress the statements he made while being transported from New York to Connecticut, (2) the police improperly questioned him without the presence of counsel, and the court improperly found that he knowingly, intelligently and voluntarily waived his Miranda² rights prior to being questioned, (3) the prosecutor engaged in misconduct, (4) the defendant was deprived of his right to a speedy trial, (5) his right to the effective assistance of counsel was violated when the court prohibited him from orally communicating with his attorney, (6) his fifth amendment right against double jeopardy was violated when he was convicted of burglary in the first degree and robbery in the first degree, (7) the court improperly instructed the jury and (8) there was insufficient evidence to convict him of burglary in the first degree and robbery in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 2 a.m. on April 16, 1994, the victim, Paul Levine, was awakened from sleep when somebody turned on the ceiling light in his bedroom. Upon awakening, Levine saw the defendant holding a gun in the doorway of the bedroom. The defendant ordered Levine, at gunpoint, to keep his head down or he would kill him. The defendant then took cash and jewelry from Levine valued at between $10,800 and $10,900. Levine was then ordered to go into his bathroom and not to leave. Shortly after entering the bathroom, Levine heard the front screen door close. Levine then called 911.

The defendant subsequently was arrested in New York on May 21, 1996, and transported to Connecticut. After a jury trial, the defendant was sentenced to a total effective term of thirty-five years imprisonment. This appeal followed.

I

The defendant initially claims that the court improperly denied his motion to suppress the statements he made while being transported from New York to Connecticut. We disagree.

The following facts and procedural history are relevant to our resolution of that issue. An arrest warrant was issued for the defendant on April 21, 1994, for the crimes underlying this appeal. Subsequently, the defendant was arrested and incarcerated in New York for crimes occurring in that state. On October 16, 1995, the state of Connecticut sought temporary custody of the defendant through the interstate agreement on detainers (IAD).³ A pretransfer hearing was then held in the Dutchess County Supreme Court in New York at the request of the defendant. After the hearing, that court granted the state's request for the temporary removal of the defendant to face charges in Connecticut.

On May 21, 1996, Detectives Brian Meraviglia and David Wagner of the Connecticut state police transported the defendant from the Green Haven Correctional Facility in Stormville, New York, to the Troop A state police barracks in Southbury. Prior to transporting the defendant, Wagner handcuffed the defendant and read him his Miranda rights. During the transportation, Wagner and the defendant engaged in a conversation. During that conversation, the defendant told Wagner that he was involved in the robbery at the victim's house. Upon arriving at Troop A, Wagner asked the defendant if he would provide a written statement about the crimes underlying this appeal. The defendant declined until he had the opportunity to speak with the prosecutor.

The defendant filed a motion to suppress the statements that he had made to Meraviglia and Wagner while being transported to Connecticut. A hearing was held before the court on October 24, 1996. The only two witnesses to testify at the hearing were Meraviglia and Wagner. After hearing argument from the defendant and the state, the court reserved decision on the defendant's suppression motion and asked each party to submit simultaneous briefs on what effect, if any, the defendant's representation by counsel on unrelated charges in New York had on the present matter.

Following the submission of the requested briefs and further argument from counsel, the court denied the defendant's motion to suppress in a written memorandum of decision. The court found that the defendant's right to counsel under the federal and state constitutions had not attached when the state filed the information against him because "it did not signal the commencement of adversary judicial criminal proceedings."

The defendant now appeals from the court's decision. It is the defendant's contention on appeal that his federal and state constitutional rights to counsel were violated when Wagner questioned him while being transported from New York to Connecticut. The defendant claims that adversary proceedings had commenced, and, therefore his constitutional right to counsel attached when the state filed an information in connection with the April 16, 1994 robbery and when the state later requested and obtained his temporary custody pursuant to the IAD. Specifically, the defendant claims that his statements to Wagner while being transported should have been suppressed because he was not provided counsel before being interrogated after his right to counsel had attached.

Initially, we note that the defendant has raised his claim under the sixth amendment to the federal constitution, as well as under article first, § 8, of our state constitution. Our Supreme Court already has held that the "time of the attachment of the right to counsel [under the federal constitution] is no different under article first, § 8, of the constitution of Connecticut." State v. Lewis, 220 Conn. 602, 612, 600 A.2d 1330 (1991); State v. Palmer, 206 Conn. 40, 64, 536 A.2d 936 (1988). Therefore, because a defendant's right to counsel attaches at the same time under both the federal and state constitutions, we need not separately address the defendant's state constitutional claim.

"Our standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . . When a factual issue implicates a constitutional claim, however, we review the record carefully to ensure that its determination was supported by substantial evidence. . . . Nonetheless, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Internal quotation marks omitted.) State v. Young, 76 Conn. App. 392, 407-408, 819 A.2d 884, cert. denied, 264 Conn. 912, 826 A.2d 1157 (2003).

The defendant's claim rests on his belief that his right to counsel had attached prior to being questioned by Wagner while being transported from New York to Connecticut. "The sixth amendment accords the right of an accused to the assistance of counsel in all criminal prosecutions; this right attaches only at or after the time that adversary judicial proceedings have been initiated. . . . It is this point, therefore, that marks the commencement of the criminal prosecutions to which alone the explicit guarantees of the Sixth Amendment are applicable." (Citations omitted; internal quotation marks omitted.) State v. Lewis, supra, 220 Conn. 611-12.

Even if we were to agree with the defendant's claim that his rights under the sixth amendment had attached prior to speaking to Wagner, the court properly denied the defendant's motion to suppress because he did not invoke that right. See id., 612-13. This case is nearly identical to our Supreme Court's decision in State v. Lewis, supra, 220 Conn. 602. In Lewis, the defendant claimed that certain inculpatory statements that he made to the police should have been suppressed because they were elicited in violation of his federal and state constitutional rights. Id., 610. The defendant argued that his sixth amendment rights attached when an information was filed nearly one year before he was arrested and questioned. Relying on the United States Supreme Court's decision in Patterson v. Illinois, 487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988), our Supreme Court rejected the defendant's claim because there was no evidence that established that the defendant had invoked his rights under the sixth amendment. State v. Lewis, supra, 612-13.

"In Patterson, the United States Supreme Court held that the uncounseled postindictment statements of an accused were admissible against him despite the fact that his right to counsel had come into existence. The fact that [the defendant's] Sixth Amendment right came into existence with his indictment, i.e., that he had such a right at the time of his questioning, does not distinguish him from the preindictment interrogatee whose right to counsel is in existence and available for his exercise while he...