State v. Perry

Citation488 A.2d 1256,195 Conn. 505
PartiesSTATE of Connecticut v. Alphonzie PERRY.
Decision Date19 March 1985
CourtSupreme Court of Connecticut

John S. Pinney, Bloomfield, with whom, on the brief, were Thomas E. Gaffey, and Sara L. Bernstein, Bloomfield, for appellant (defendant).

Jonathan C. Benedict, Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, PARSKEY, SHEA and DANNEHY, JJ.

SHEA, Associate Justice.

On June 10, 1980, Edmund Kish was shot and killed at a package store in Bridgeport. The cash register at the scene of the homicide was found open and empty when the body was discovered. In connection with this incident, the defendant was convicted of felony murder in violation of General Statutes § 53a-54c 1 and sentenced to incarceration for twenty-three years to life.

In this appeal, the defendant claims that his conviction must be overturned because the trial court erred (1) in failing to suppress the incriminating statement he made to the police, (2) in admitting evidence of other crimes allegedly committed by the defendant, and (3) in unreasonably restricting his cross-examination of a police officer regarding prior misconduct by the officer. We find no error in the trial court's rulings and affirm the conviction.

I

The defendant advances several grounds for the exclusion of his incriminating statement. First, the defendant contends that the statement should be suppressed as the fruit of an unlawful arrest. Second, the defendant argues that the statement must be suppressed under General Statutes § 54-1c because he was not advised of his right to bail before the statement was made. Finally, the defendant maintains that, even if these prophylactic rules were not broken, his confession cannot under all the circumstances be considered voluntary. We find none of the defendant's arguments persuasive.

A

The defendant's first ground for exclusion is premised on the proposition that where there is no probable cause to believe a suspect has committed a crime at the time of his arrest, any statements obtained as a result of the arrest must be excluded from evidence. 2 We agree with the legal principle advanced by the defendant, but not with his application of it to this case. "It is clear under recent decisions of the United States Supreme Court that a confession that is found to be voluntary for purposes of the fifth amendment has met only a threshold requirement for fourth amendment analysis. With respect to the fourth amendment, the further test is whether there is so close a causal connection between an illegal arrest and a confession that the confession must be suppressed in order to deter similar police misconduct in the future and to protect the integrity of the courts." (Citations omitted.) State v. Derrico, 181 Conn. 151, 157, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S.Ct. 789, 66 L.Ed.2d 607 (1980); see also State v. Ostroski, 186 Conn. 287, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982). The state argues not that there were intervening circumstances sufficiently separating the incriminating statement from the arrest; see, e.g., United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); but rather that the arrest itself was lawful. We agree.

A lawful arrest must be based on probable cause. " '[P]robable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules.' Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527, reh. denied, --- U.S. ----, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983).... The determination of probable cause must be made from the 'totality of the circumstances.' Illinois v. Gates, supra [103 S.Ct.] 2328." State v. Gasparro, 194 Conn. 96, 105-106, 480 A.2d 509 (1984); see also Massachusetts v. Upton, --- U.S. ----, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). We are convinced that the several pieces of information available to the police at the time of the defendant's arrest combined to meet this standard. The police had at the time of the arrest a statement from one Luther Fleming that identified the defendant as Fleming's companion at the scene and served also to incriminate the defendant. While Fleming's statement was for the most part self-serving and exculpatory as to himself, the police were justified in placing some reliance on the portions of the statement implicating the defendant. The police also had independent confirmation by an eyewitness of the involvement of Fleming and a companion in the crime, and the statement of a confidential informant, who had proved reliable in the past, that the defendant had admitted shooting the victim. The reliability of the informant's statement is enhanced by the fact that the informant, who appears to have gained all of his information about the crime from the defendant, also named Fleming as the operator of the car involved in the crime. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Regardless of the sufficiency of any of these sources standing alone to establish probable cause, the totality of them adequately supported the trial court's finding, "that the defendant was legally arrested." See Illinois v. Gates, supra, 103 S.Ct. 2334-36. Thus the arrest provides no basis for the suppression of the defendant's incriminating statement.

B

Perhaps the most troublesome of the defendant's claims of error rests on his interpretation of General Statutes § 54-1c as mandating the inadmissibility of any confession taken before an accused is informed of his right to be interviewed concerning the terms and conditions of release as required by General Statutes § 54-63c. 3 In order to succeed in his claim of statutory exclusion, the defendant must establish a nexus between § 54-1c, 4 which renders inadmissible any statement obtained from an accused who has not been presented for arraignment at the proper time "or who has not been informed of his rights as provided by section 54-1b or section 54-64b," and § 54-63c, 5 which requires that the police inform an accused of his right to bail "promptly" after arrest. The defendant points out that subsection (b) of § 54-64b, 6 explicitly referenced by § 54-1c, requires that the provisions of § 54-63c be followed "without undue delay." The defendant argues that this nexus is sufficient to require the exclusionary effects of § 54-1c unless compliance with § 54-63c is established.

In order to reach this question the defendant must, and does, attack the trial court's finding that the defendant had adequately been apprised of his bail rights. If this finding stands, there would be no reason to decide whether the failure to give the warnings would render a confession inadmissible. The evidence most supportive of the trial court's finding shows only that the defendant was at some point informed that his bail would be set at $100,000. The state conceded at oral argument that this warning was insufficient to inform the defendant of the full panoply of rights contemplated by § 54-63c. The statute requires that the accused person be told of his right to be interviewed concerning release and his right to have counsel present at the interview. The trial court's finding that these rights were given to the defendant has no foundation in the evidence and must be considered clearly erroneous. Practice Book § 3060D.

Even so, it does not follow that the incriminating statement given is inadmissible unless the exclusionary effect of § 54-1c applies to violations of § 54-63c. We find no such relationship between the statutes and for that reason reject the defendant's call for exclusion. When General Statutes § 54-1c was initially adopted in 1963, it contained no reference to § 54-64b, the latter statute not being in existence. The initial version of § 54-1c referred only to the rights granted by § 54-1b, which at that time required the judicial authority at the time of arraignment to set bail as well as advise the accused of his right to an attorney, of his right to refuse to make a statement, and that any statement made might be introduced in evidence against him. See Public Acts 1963, No. 126. Several legislators recognized that the law applied only at the time of arraignment, a different bill focusing on the time of arrest having failed of passage. See, e.g., 10 H.R.Proc., Pt. 5, 1963 Sess., p. 1731 (remarks of Rep. Benjamin L. Barringer). "It [Public Acts 1963, No. 126] is a bill that gives the rights to counsel at the critical moment when a person most needs counsel, namely at the point where he has just shortly thereafter [sic] been arrested, and where he is being brought for an arraignment." 10 H.R.Proc., Pt. 5, 1963 Sess., p. 1730 (remarks of Rep. Robert Satter). Significantly, it was also recognized that the bill was not coextensive with judicially mandated exclusions and that it referred to the actions of court officials rather than police officers. "[I]t may legitimately be said that an accused may have more rights under case law than this bill will give him.... [I]t will only provide some protection by requiring the judge or the clerk, as the case may be, if it's a bench warrant, to advise the accused of these rights." 10 S.Proc., Pt. 4, 1963 Sess., pp. 1444-45 (remarks of Sen. Paul J. Falsey). We have recognized the limited application of § 54-1c in State v. Vollhardt, 157 Conn. 25, 38-39, 244 A.2d 601 (1968), where we concluded that the statute required only that the defendant be advised of his rights "before he is put to plea," not before any confession is obtained.

When the legislature in 1967 enacted what is now General Statutes § 54-63c, requiring police officers and bail commissioners to make preliminary bail determinations before arraignment, it did not tie a violation of those...

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