State v. Roy
| Decision Date | 21 June 1994 |
| Docket Number | No. 12281,12281 |
| Citation | 643 A.2d 289,34 Conn.App. 751 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. John ROY. |
Daniel S. Blinn, Special Public Defender, for appellant (defendant).
Nancy L. Gillespie, Deputy Asst. State's Atty., with whom, on the brief, were John T. Redway, State's Atty., and Timothy Liston, Asst. State's Atty., for appellee (state).
Before LAVERY, LANDAU and HEIMAN, JJ.
The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103, 1 as a lesser included offense of burglary in the first degree; General Statutes § 53a-101(a)(1); larceny in the first degree in violation of General Statutes § 53a-122(a), 2 stealing a firearm in violation of General Statutes § 53a-212 3 and conspiracy to commit each of the crimes with which he was charged in violation of General Statutes § 53a-48. 4 On appeal, the defendant asserts that the trial court improperly (1) refused to suppress testimony concerning statements made by him to the police in violation of his Miranda 5 rights, (2) denied his motion for judgment of acquittal, and (3) convicted him of both larceny and stealing a firearm. We affirm the judgment of the trial court.
The jury could reasonably have found the following facts. On the evening of July 13 and the early morning of July 14, 1991, the defendant and Donald Young were riding in Young's truck while contemplating breaking into a gun store in Bristol. The defendant was armed with a nine millimeter pistol and Young carried a .38 caliber revolver. They looked through the windows of a Bristol gun store and noted that no weapons were visible. As a result, they decided to find another store from which to steal guns.
Both the defendant and Young had earlier observed Teddy's Gun Shop in Haddam (Teddy's) and had concluded that it was possible to break into that gun store because of its poor security. They thus decided, instead of breaking into the Bristol store, to break into Teddy's. At the time that they made this decision, Young was operating his truck on Route 72 in Bristol.
Teddy's is located in a densely wooded area with sparse population. In the immediate vicinity of the store are an apartment complex, a house and a restaurant. Teddy's is located on the second floor, over the Glockenspiel restaurant. Young parked his truck in the restaurant parking lot and he and the defendant walked to the area of the gun shop. At that time, the Glockenspiel restaurant had been closed for about one hour.
The defendant turned off the power to the building. When the power was shut off, the defendant and Young climbed a ladder that they had placed on the west side of the building. They went to a window that was equipped with an alarm pressure switch and the defendant kicked the switch to bend it so that it would not pop up and activate the alarm. They broke the window, pushed up the window latch and the defendant entered the premises. Young waited outside observing the area in case a silent alarm had been activated.
Young followed the defendant into Teddy's through the window and they proceeded to load guns into gun cases. The defendant and Young remained in Teddy's for about three hours. Before placing the guns in the cases, the defendant sprayed the guns with a very light oil to prevent rusting. In addition, they placed a .44 magnum, two .45 caliber, two nine millimeter and two .380 caliber guns in a small duffle bag for removal. The defendant and Young also took ammunition, holsters, magazines, several aimpoint laser scopes and a silencer. Young also removed about $100 from the cash register, which he later divided with the defendant.
The boxes containing the stolen property were placed in Young's truck and transported to the Cenacle property in Middletown. The property is the site of an abandoned convent with wooded trails and several buildings in various states of disrepair. The defendant and Young took the boxes that contained some of the items removed from Teddy's and stored them in an underground concrete structure that the defendant referred to as the "Witch Cabin." The structure had a heavy steel door over the top. The defendant took the stainless steel nine millimeter Baretta and the .380 caliber Baretta, and Young took the .22 caliber Baretta and the .38 caliber Smith and Wesson. They stored the remaining weapons and paraphernalia in the underground structure, covered the steel door with dirt and leaves, and left the area.
On July 16, 1991, Young and Ronald Pollack visited the underground structure and Young showed Pollack the weapons and other items that had been taken from Teddy's. While they were at the structure, they shot one of the nine millimeter weapons. Young removed several of the weapons including a nine millimeter Luger with a silencer attached, a .45 caliber, a .22 caliber, a .380 caliber and another nine millimeter weapon. Young also attempted to file serial numbers from several of the weapons. Young and Pollack then traveled to East Hartford. Pollack was operating a vehicle with Young as the passenger. The vehicle was stopped by the East Hartford police and both Young and Pollack were arrested. When the police stopped the vehicle, Young placed the weapons that he had removed from the cache onto the floor of the vehicle. The East Hartford police took the weapons into possession, identified them as having been taken in the burglary at Teddy's and notified the state police.
On July 17, 1991, Young was interviewed by two Connecticut state police officers. During that discussion, Young told the police officers about the burglary. Pollock also spoke with the state police and directed the police to the underground structure where the weapons had been concealed by the defendant and Young. On July 17, 1991, the defendant was arrested pursuant to a warrant.
The defendant first asserts that the trial court improperly admitted into evidence a statement made by him while he was in custody because (1) he unequivocally invoked his Miranda rights or (2) the trial court failed to make proper inquiry regarding the defendant's intent when he crossed out his signature on the waiver form. We are unpersuaded.
Certain additional facts are necessary to a resolution of this issue. Sergeant Gregory Snead of the Middletown police had taken the defendant into custody in Middletown and had advised him that the state police had a warrant for his arrest. Snead advised the defendant as to his Miranda rights and discussed with the defendant an unrelated case involving the Middletown police. At no time did the defendant request that Snead stop questioning him nor did he request the presence of an attorney. The defendant was responsive and cooperative with Snead.
After being taken into custody by the Middletown police, the defendant was subsequently transported to Troop F in Westbrook by Detectives Marsha Youngquist and Patrick Gaffney of the Connecticut state police. Upon arrival at Troop F, the defendant was fingerprinted, photographed and his Miranda rights were read to him. After being advised of his rights, the defendant placed his initials after each of the statements in a waiver of rights form. 6 Following his reading and initialing of the form, the defendant signed the form on the signature line, crossed out the signature and then reaffixed his signature adjacent to the signature that he had crossed out. Before the defendant resigned the form, Youngquist reread to the defendant the last paragraph of the waiver form. The defendant then again signed the form.
The defendant testified in his own behalf in the hearing on his motion to suppress the statements that he had made to Youngquist. He asserted that he had advised Youngquist that he did not want to say anything until he had his attorney present. He stated that he had told her that several times, but she continued questioning him. He also asserted that he crossed out his initial signature on the waiver of rights form 7 because it said that he was willing to answer questions and make a statement when he was unwilling to do so, and that he had advised Youngquist of this fact by saying that he would have nothing to say without his attorney. He also claimed that he finally signed the waiver because Youngquist told him that it was just standard procedure to sign the waiver of rights and that it made no difference since he had already been arrested for the crime. He further testified that Youngquist continued questioning him after he had asserted his desire to speak with counsel. He also admitted that Youngquist told him that he did not have to talk simply because he signed the waiver form. The defendant testified as to his prior encounters with the criminal justice system, admitting that he had been given his Miranda warnings on a number of occasions and had given both oral and written statements to the police following his numerous other arrests.
The state police detectives talked with the defendant for about one and one-half hours. The defendant was generally talkative although evasive when he was pressed for details concerning the break-in at Teddy's, by attempting to change the subject and discussing other crimes that he had committed with Young. When Youngquist told the defendant that they knew that he had broken into Teddy's, he nodded his head, said "Yeah," and then volunteered that they "got a lot of guns." The defendant asked if he could make a phone call at the completion of the interview and was permitted to do so. He elected to call his girlfriend.
On the morning of July 18, 1991, Youngquist brought the defendant a statement that she had prepared after the interview concerning one of the other incidents that they had discussed. She again read the defendant his Miranda rights and waiver. The defendant declined to sign the statement saying that his lawyer had told...
To continue reading
Request your trial
-
State v. Coleman
...whether the crimes arose out of the same act or transaction, we refer to the language of the information. State v. Roy, 34 Conn.App. 751, 768, 643 A.2d 289 (1994) rev'd on other grounds, 233 Conn. 211, 658 A.2d 566 (1995); State v. Raymond, 30 Conn.App. 606, 611, 621 A.2d 755 (1993); State ......
-
State v. Adams
...for the burglary, the larceny and each theft of a firearm at each residence. The defendant acknowledges that in State v. Roy, 34 Conn.App. 751, 643 A.2d 289 (1994), rev'd on other grounds, 233 Conn. 211, 658 A.2d 566 (1995), we held that convictions for both stealing a firearm and larceny i......
-
State v. Perkins
...of the waiver rule in criminal cases has been criticized"), cert. denied, 256 Conn. 919, 774 A.2d 142 (2001); State v. Roy, 34 Conn.App. 751, 766 n. 13, 643 A.2d 289 (1994) ("our Supreme Court has acknowledged the criticism of the waiver rule and ... because the waiver rule represents the e......
-
State v. Porter
...1145 (1996) ; State v. Smart, [37 Conn.App. 360, 365, 656 A.2d 677, cert. denied, 233 Conn. 914, 659 A.2d 187 (1995) ]; State v. Roy, 34 Conn.App. 751, 768, 643 A.2d 289 (1994), rev'd on other grounds, 233 Conn. 211, 658 A.2d 566 (1995) ; State v. Nita, 27 Conn.App. 103, 113, 604 A.2d 1322,......