State v. Thompson, 2964

• Decision Date: 03 September 1985
• Docket Number: No. 2964,2964
• Citation: 497 A.2d 423,5 Conn.App. 157
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Stanley THOMPSON.

Page 423

497 A.2d 423

5 Conn.App. 157

STATE of Connecticut v. Stanley THOMPSON.

No. 2964.

Appellate Court of Connecticut.

Argued May 9, 1985.

Decided Sept. 3, 1985.

Richard T. Meehan, Jr., Bridgeport, with whom, on brief, was James J. Ruane, Bridgeport, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on brief, was Donald A. Browne, State's Atty., for appellee (state).

Before HULL, BORDEN and SPALLONE, JJ.

BORDEN, Judge.

The defendant was convicted by a jury of manslaughter in the second degree in violation of General Statutes § 53a-56(a). In this appeal from that conviction, he raises several claims of error: (1) the partial denial of his pretrial motion to suppress his statements to the police; (2) the denial of his motion for judgment of acquittal and postverdict motions for acquittal and mistrial; (3) error in certain evidentiary rulings; and (4) error in the court's charge to the jury.

We find no error in the denial of his motions for acquittal. We do find error, however, in the pretrial suppression ruling, and do not reach his other claims because it is not clear that they will arise again on retrial. ¹

We first briefly consider the defendant's claim, raised in the context of the denial of his motions for judgment of acquittal, that the state did not produce enough evidence to establish his guilt beyond a reasonable doubt, even with his challenged statements to the police. We disagree.

The defendant had babysat for the three year old victim, Michelle Anderson, on the evening before her death, which occurred at the Bridgeport Hospital the following morning. As the defendant accurately states in his brief, the state's theory was that the child died from injuries secondary to blunt force trauma to her abdomen. There was evidence that the child was not injured prior to being left in the defendant's care, and was in distress and vomiting when her mother returned. The defendant's statements indicate that, while in his care, the child fell several times, he had used some force on her, and she had vomited and moaned. The surgeon who operated on the child testified that the blunt force causing the child's internal injuries was inflicted during the time the child was in the defendant's care, and that her injuries were inconsistent with accidental trauma such as falling. The cumulative effect of the evidence, together with the reasonable inferences drawn therefrom, was sufficient to justify the verdict. State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984).

We now turn to the claim of the defendant that the court erred in partially denying his suppression motion. The defendant took exception to this ruling and the evidence was later admitted at trial over his objection.

The defendant raises four alternative claims of error with respect to the suppression ruling. He claims: (1) he did not effectively waive his Miranda ² rights prior to making the statement in question; ³ (2) there were insufficient intervening events between the illegal arrest and his statement to dissipate any taint upon that statement; (3) the oral and written statements were tainted by earlier fifth amendment violations; and (4) there was not probable cause for his arrest. The dispositive claim is that he did not knowingly and intelligently waive his Miranda rights.

The trial court did not file a written memorandum of decision detailing the facts in support of its conclusion. We may, therefore, look to all of the evidence produced in support of that ruling. State v. Martin, 2 Conn.App. 605, 614, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, --- U.S. ----, 105 S.Ct. 2706, 86 L.Ed.2d 721 (1985). That evidence is as follows: In the early morning, Joan Anderson brought her daughter to the Bridgeport Hospital. This child had a history of physical abuse. On this occasion, she had multiple bruises on her lower abdomen and genital area which ultimately led to her death in surgery a few hours later. After the attending physician at the hospital diagnosed the child's case as one of child abuse and initiated the appropriate referrals for investigation, the mother phoned the defendant at his home in Mount Vernon, New York, at 6 a.m. to notify him of the situation. He immediately traveled to the hospital where he was met by a hospital social worker.

The social worker testified that she interviewed the defendant and he informed her that he babysat for the child for two hours the preceding evening. The defendant is the father of Joan Anderson's other child and he occasionally babysat while Anderson attended night school. He related to the social worker that the child fell off a chair and vomited during this period of time. The social worker notified Detective Paul Bogardis of the Bridgeport police department that the defendant was present in her office. Bogardis went to the hospital with Detective Leo Krusinski to interview the defendant.

Upon meeting the defendant at the hospital, the two detectives requested that he accompany them to the police department and he agreed. He was questioned by Bogardis from his arrival at headquarters at 9 a.m. until 1 p.m. Bogardis began taking a written statement at 11:05 a.m. and, in the midst of this process, he received a phone call from the hospital reporting the child's death at 11:15 a.m. He pursued the interrogation after receiving this call and completed the statement at 1 p.m. The trial court suppressed this statement because no Miranda warnings had been given.

Bogardis testified that he completed the arrest report indicating the arresting officers as "Captain Fabrizi, et al.," meaning that Captain Anthony Fabrizi, Lieutenant Frank Nerkowski and he had participated in the arrest. The time of arrest indicated is 2 p.m. Fabrizi testified that after Bogardis completed his interrogation, he confronted the defendant and informed him that he was lying. This confrontation occurred in a small interrogation room. Fabrizi then arranged for a psychological stress evaluator (PSE) test and obtained the defendant's signature on a written consent form. The defendant took the test but the machinery malfunctioned. Nevertheless, Fabrizi confronted the defendant with purported test "results" which he told the defendant proved that the defendant was lying. At this juncture, the defendant admitted that during the time he was babysitting, he slapped the child and she fell, hitting her head on the door jamb. He also admitted forcibly placing her on the toilet several times because she soiled herself and would not stay on the toilet. Fabrizi concluded that he had probable cause to arrest the defendant and placed him under arrest at 2 p.m. The court suppressed "any questions and answers which may have been elicited on the psychological stress evaluator test" because of the lack of Miranda warnings. The parties understood this order to include statements made to Fabrizi during the course of his interrogation.

Fabrizi testified that upon receiving these admissions from the defendant, he obtained the defendant's verbal consent to give a written statement. He thereupon turned the defendant over to Nerkowski for the purpose of taking the statement. According to Fabrizi, Nerkowski was probably present when the defendant made these admissions to him.

Nerkowski testified that he was assigned to take a statement from the defendant. He first obtained a report from Bogardis in the presence of the defendant with respect to prior statements made. He then took the defendant into an interrogation room and read him the Miranda warnings from a card. This was the first time that the Miranda warnings were given by any of the three arresting officers. After reading the rights, Nerkowski obtained the defendant's signature on a "Notification of Rights" form. This form was referred to by Nerkowski in court as a "waiver." Nerkowski testified that the city of Bridgeport has since obtained a new form which specifically includes a notice regarding waiver of rights. With regard to the form used, he testified: "This is a notification of rights form. It's called a waiver. Mr. Thompson signed it and I witnessed it." When the defendant signed this form, Nerkowski understood that he was waiving his constitutional rights. After the defendant acknowledged that he understood each of his rights, and after he signed the notification form, there was no further discussion of rights or waiver of rights.

Nerkowski then proceeded to engage the defendant in an interview which lasted approximately one half hour. The substance of this interview was then incorporated into a written statement typed by Nerkowski in a question and answer format. Preparation of this written statement consumed approximately forty minutes. After the document was typed, the defendant read it, deleted a portion of a sentence and signed it. Incorporated in this statement is the question: "Are you making this statement voluntarily and of your own free will?" and the defendant's answer: "yes."

The defendant also testified at the suppression hearing. Cf. State v. Pellegrino, 194 Conn. 279, 289 n. 17, 480 A.2d 537 (1984) (potentially relevant evidence regarding waiver lacking due to defendant's failure to testify). He was born, raised and educated to age sixteen in Jamaica. The record of his testimony indicates numerous instances of either his inability to understand questioning or the attorneys' and court's inability to understand his responses. When presented with his written statement and the notification of rights form, he demonstrated his ability to read. On cross examination, he admitted signing the written statement after it was completed and indicated that it was done voluntarily. The testimony of all of the witnesses, including the defendant, indicates that he was obedient and fully cooperative throughout the entire period of interrogation. ⁴

The court denied the motion to suppress with regard to these oral...