State v. Pierre

• Decision Date: 18 May 2004
• Docket Number: (AC 24225).
• Citation: 83 Conn. App. 28,847 A.2d 1064
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. GREGORY PIERRE.

83 Conn. App. 28

847 A.2d 1064

STATE OF CONNECTICUT v. GREGORY PIERRE.

(AC 24225).

Appellate Court of Connecticut.

Argued December 3, 2003.

Officially released May 18, 2004.

Foti, West and Hennessy, Js.

William T. Koch, Jr., special public defender, with whom was Jeremiah Donovan, special public defender, for the appellant (defendant).

Peter A. McShane, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, state's attorney, Michael L. Regan, supervisory assistant state's attorney, and Courtney Morris, legal intern, for the appellee (state).

Opinion

WEST, J.

The defendant, Gregory Pierre, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), and two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (B). On appeal, he claims that the trial court improperly (1) denied his motion to suppress written and oral statements that he made to the police and (2) admitted into evidence a prior inconsistent statement for substantive consideration pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L.Ed. 2d 598 (1986). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 23, 1998, at approximately 6 a.m., a taxicab driver picked up three males at a closed supermarket in Waterford and drove them to the defendant's apartment at 103 Michael Road in New London. At 6:30 a.m., Waterford police began investigating a Saab that belonged to the victim's father and had been found partially submerged in the town's duck pond. Inside the car, the police discovered a business card from Lucky's Cafe in New London on which a private telephone number was handwritten. On January 10, 1999, the victim's remains were found in Bates Woods, a recreation area in New London located across from Michael Road, where the defendant lived. Additional facts will be set forth as needed.

I

The defendant first claims that the court improperly denied his motion to suppress written and oral statements he made to the police subsequent to his arrest. Specifically, he argues that his right to counsel under the sixth amendment to the United States constitution¹ and the constitution of Connecticut, article first, § 8, attached at the time of his arrest by warrant.² We disagree.

The following additional facts are necessary for our resolution of the defendant's claim. On June 14, 1999, the defendant was arrested in Garden City, New York. While in custody, he made an incriminating written statement to the police after being advised of, and having waived, his rights under Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). On June 24, 1999, the defendant made an incriminating oral statement to the police while en route to Connecticut, again after being advised of his Miranda rights.

"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." (Internal quotation marks omitted.) State v. Perez, 78 Conn. App. 610, 616, 828 A.2d 626 (2003).

"We have consistently held that a defendant's right to counsel under the sixth amendment or its state constitutional counterpart arises only at or after the initiation of adversary judicial criminal proceedings— whether by way of formal charge, preliminary hearing, indictment, information or arraignment." (Internal quotation marks omitted.) State v. Falcon, 196 Conn. 557, 560, 494 A.2d 1190 (1985). It is well settled that "an arrest, whether or not accompanied by a warrant, does not mark the start of adversarial judicial proceedings." Id., 561.

Moreover, even if we were to agree with the defendant's claim that his right to counsel attached at the time of his arrest, the court properly denied his motion because he did not invoke that right. See State v. Lewis, 220 Conn. 602, 612-13, 600 A.2d 1330 (1991). At no point in the taking of his written statement or in the conversation taking place during extradition to Connecticut did the defendant ask for an attorney or state that he wanted to end the conversation. See State v. Perez, supra, 78 Conn. App. 618. Therefore, we conclude that the court properly denied the defendant's motion to suppress the written and oral statements.

II

The defendant also claims that the court improperly allowed the introduction of a Whelan statement containing the assertions of a codefendant.³ He argues that (1) a third party statement within a prior inconsistent statement precludes satisfaction of the "personal knowledge" requirement of Whelan, (2) the third party statement at issue constituted inadmissible hearsay and (3) admitting the prior inconsistent statement into evidence violated his sixth amendment right to confront the witnesses against him. We disagree.

The following additional facts are necessary for our resolution of the defendant's claim. The state called Norman Carr as a witness during its case-in-chief. Carr was friendly with the defendant and the two codefendants, Abin "A.B." Britton and Jeffrey Smith. On February 16, 1999, Carr provided the state police with a seven page written statement at his attorney's office, describing certain incriminating statements made by Britton and the defendant in Carr's presence.⁴ During his testimony at trial, however, Carr insisted that he never had heard Britton or the defendant discuss the killing of the victim. He maintained that any assertion to the contrary in his February 16, 1999 written statement to the police was false. The court ruled that Carr's prior inconsistent statement could be admitted for substantive consideration under Whelan.⁵

We first note the standard of review. "The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the wide discretion of the trial court. . . . On appeal, the exercise of that discretion will not be disturbed except on a showing that it has been abused." (Citation omitted.) State v. Newsome, 238 Conn. 588, 596, 682 A.2d 972 (1996).

A

The defendant first argues that the "personal knowledge" requirement of Whelan is negated by a third party statement. We disagree.

In Whelan, our Supreme Court adopted a rule "allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination." State v. Whelan, supra, 200 Conn. 753. In State v. Grant, 221 Conn. 93, 99, 602 A.2d 581 (1992), the Supreme Court explained that the "personal knowledge" requirement of Whelan does not necessitate an eyewitness account of the facts or events recited in the prior statement. Instead, the Supreme Court emphasized that "a prior inconsistent statement ha[s] to be given under circumstances ensuring its reliability and trustworthiness in order to be admissible." Id., 100.

We find no case law to support the defendant's contention that a third party statement, by itself, precludes satisfaction of the "personal knowledge" requirement of Whelan. In State v. Buster, 224 Conn. 546, 552-53, 620 A.2d 110 (1993), on the contrary, the prior inconsistent statement at issue included, in part, what the declarant heard his cousin say in the defendant's presence about a gun and certain plans for its disposal. The court stated that "[h]ad [the declarant] stated that [the defendant's cousin] said he had done something with the gun, [the declarant] would have met the `personal knowledge' prong of Whelan and the state could have introduced it to show what [the defendant's cousin] said." Id., 560 n.8. The fact that the defendant's cousin made the statements instead of the defendant himself, it is important to note, did not strip the declarant of personal knowledge of the statements he had heard.

In this case, we are satisfied that Carr's written statement to the police was sufficiently reliable for substantive use. At trial, Carr testified that he had known the defendant and Britton for approximately two years before the summer of 1998. Carr described himself as friendly with both men and testified that they all had socialized and worked together. He testified that he had frequented Lucky's Cafe in New London, where the victim sought to purchase crack cocaine on August 23, 1998. He also testified that he had visited the defendant's apartment on Michael Road. According to Carr's statement to the police, the incriminating statements by Britton and the defendant in late August or September, 1998, were made as all three men rode in the back of a company van upon returning from a work site.

We therefore conclude that Carr had enough personal knowledge of the facts and circumstances surrounding the statements he heard for the court properly to rule that his written statement was reliable for substantive use. See State v. Grant, supra, 221 Conn. 100-102. Furthermore, a detective testified at trial that Carr had agreed to be interviewed at his attorney's office concerning the victim's homicide. The detective also testified that Carr had scrutinized his written statement, made several changes to it and met with his...