State v. Traub

• Decision Date: 18 December 1962
• Citation: 187 A.2d 230,150 Conn. 169
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Robert B. TRAUB. Supreme Court of Errors of Connecticut

Page 230

187 A.2d 230

150 Conn. 169

STATE of Connecticut v. Robert B. TRAUB.

Supreme Court of Errors of Connecticut.

Dec. 18, 1962.

James D. Cosgrove, Public Defender, for appellant (defendant).

George D. Stoughton, Asst. State' Atty., with whom, on the brief, were John D. LaBelle, State's Attorney, and J. Read Murphy, Asst. State's Atty., for appellee (state).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

KING, Associate Justice.

The defendant, Robert B. Traub, was convicted of statutory arson. General Statutes §§ 53-82, 53-83. During the trial, three written confessions were admitted in evidence, each over Traub's objection. The basic claims of error in this appeal relate to the admission in evidence of these confessions.

The validity of the court's rulings admitting the confessions depends on the facts surrounding the making of the confessions. Although the case was tried to the jury, the facts with respect to the admissibility of the confessions are those found by the court, since it is settled that the preliminary question of the competency--that is, the admissibility--of a confession is a question for the court, although the weight to be accorded the confession, if the court admits it, is for the jury. State v. Devine, 149 Conn. 640, 650, 652, 183 A.2d 612; State v. Lorain, 141 Conn. 694, 699, 109 A.2d 504; see Rogers v. Richmond, 365 U.S. 534, 548 n., 81 S.Ct. 735, 5 L.Ed.2d 760.

On May 14, 1960, seven fires of suspicious origin occurred in Hartford. One of them was in a building known as 94-96 Park Street, and another which took place a little earlier in the evening, in a building at 144-150 Front Street in which Dante's Restaurant was located. At about the time of the Park Street fire, Traub had been seen in the area, and apparently suspicion fell on him. On May 16, while Traub was sitting in a tavern drinking beer, Patrick Conroy, a detective in the Hartford police department, asked Traub to go outside to a police cruiser, and he voluntarily did so. Conroy and Edward M. Curtin, Jr., a captain in the Hartford fire department, asked Traub about various fires, and he denied that he had set any. Conroy and Curtin were not satisfied with all of Traub's answers and wished to question him further at police headquarters. Traub willingly went with them. He had had only two small beers in the tavern, and there is no claim that he was not in a condition to talk intelligently or to choose whether or not to talk at all. Daniel Leary, a police detective, took Traub outside the station and questioned him further. He was thereafter arrested at the police station and charged with breach of the peace, and bond was set. The next day, May 17, he was presented in the Hartford Police Court, his case was continued, and, in default of bond, he has taken to jail. There is no claim that the police had any belief that he was guilty of breach of the peace except as it might be involved in the greater charge of arson; but the custom then followed was to use breach of the peace as a sort of 'holding charge' to permit further investigation.

I

The first claim of the defendant is that the confessions were inadmissible because they were made while he was illegally under arrest, or illegally detained, or both. Under § 6-49 of the General Statutes, a police officer is empowered to arrest, without a prior complaint or warrant, 'any person for any offense * * * when such person is taken or apprehended in the act or on the speedy information of others,' or 'any person who such officer has reasonable grounds to believe has committed or is committing a felony.' Where the right to arrest without a warrant is regulated by statutory provision, such an arrest except as authorized is illegal. Sims v. Smith, 115 Conn. 279, 284, 161 A. 239. Section 6-49 does not authorize an arrest on mere suspicion. State v. DelVecchio, 149 Conn. 567, 575, 182 A.2d 402; State v. Carroll, 131 Conn. 224, 231, 38 A.2d 798. The state in its brief practically concedes that under the circumstances Traub should not have been arrested on a breach of the peace charge. No charge of arson was made against him until more than a week later, on May 24 or 25. The arson information in the Police Court contained seven counts, each covering a different one of the fires occurring during the evening of May 14. Traub was bound over to the Superior Court on May 25. A new information was thereafter filed, containing but two counts of arson, the first court based on the fire at 94-96 Park Street and the second count on the fire at 144-150 Front Street.

It would appear not unlikely that Traub's initial arrest on the breach of the peace charge was in violation of § 6-49 and contrary to article first, § 10, of the constitution of Connecticut, prohibiting arrests unless they are 'clearly warranted by law.' It is not, however, necessary to pass on the legality of Traub's arrest or detention, since even if illegality is assumed, it is settled law that the existence of an illegal arrest and detention does not automatically render inadmissible confessions made after the arrest or during the period of detention. Stroble v. California, 343 U.S. 181, 197, 72 S.Ct. 599, 96 L.Ed. 872, rehearing denied, 343 U.S. 952, 72 S.Ct. 1039, 96 L.Ed. 1353; Gallegos v. Nebraska, 342 U.S. 55, 60, 72 S.Ct. 141, 96 L.Ed. 86; Wong Sun v. United States, 288 F.2d 366, 371 (9th Cir.), cert. granted, 368 U.S. 817, 82 S.Ct. 75, 7 L.Ed.2d 23, restored, after argument, to calendar for reargument, 370 U.S. 908, 82 S.Ct. 1254, 8 L.Ed.2d 403; State v. Guastamachio, 137 Conn. 179, 183, 75 A.2d 429; State v. Tomassi, 137 Conn. 113, 126, 75 A.2d 67; State v. Buteau, 136 Conn. 113, 123, 68 A.2d 681, cert. denied, 339 U.S. 903, 70 S.Ct. 516, 94 L.Ed. 1332; State v. Zukauskas, 132 Conn. 450, 457, 45 A.2d 289. A collection of cases on the effect of delay in arraignment on the admissibility of confessions may be found in 19 A.L.R.2d 1331. Here, any such delay was in the arraignment on the charge of arson; there was no delay in the arraignment on the charge of breach of the peace.

There is nothing to indicate that Traub realized the possibility of there being any illegality in his initial detention under a breach of the peace charge instead of an arson charge. Nor is there anything to suggest that this irregularity or possible illegality had, or could have had, any coercive or compulsive effect on him or, for that matter, any effect on him at all, either with respect to the confessions or otherwise.

II

We come now to what is obviously the crux of this case, that is, whether the totality of circumstances surrounding the making of any one of the confessions was such that that confession was not 'the product of an essentially free and unconstrained choice by the maker.' State v. Devine, 149 Conn. 640, 653, 183 A.2d 612, 618; Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037; Lisenba v. California, 314 U.S. 219, 241, 62 S.Ct. 280, 86 L.Ed. 166, rehearing denied, 315 U.S. 826, 62 S.Ct. 620, 86 L.Ed. 1222. Any possible illegality in Traub's arrest or detention, or in his having been 'borrowed' from jail, as hereinafter explained, must be considered on the overall question of the voluntary character of the confessions. See cases such as Payne v. Arkansas, 356 U.S. 560, 562-567, 78 S.Ct. 844, 2 L.Ed.2d 975. Unless the state has, in a given case involving a particular accused, proved that under all the circumstances a particular confession by him was voluntary, that confession is inadmissible under the fourteenth amendment to the federal constitution. This is true regardless of whether the confession was, or was not, probably truthful, or would, or would not, have been admissible under common-law rules as explained in cases such as State v. Willis, 71 Conn. 293, 306, 41 A. 820, for the fourteenth amendment is concerned with the individual rights of an accused, not with the probable accuracy of any confession he may make. Culombe v. Connecticut, supra; Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 5 L.Ed.2d 760; see State v. Devine, supra. Perhaps the most convenient collection and summary of the holdings of the decisions of the United States Supreme Court on this constitutional question is to be found in an annotation in 1 L.Ed.2d 1735, supplemented in 4 L.Ed.2d 1833. The United States Supreme Court has, since these annotations were published, passed on the voluntariness of confessions in Rogers v. Richmond, supra; Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948; Culombe v. Connecticut, supra; and Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325, rehearing denied, 370 U.S. 965, 83 S.Ct. 1579, 8 L.Ed.2d 835.

We turn now to a consideration of the facts surrounding each of Traub's three confessions in order to determine, as to each, whether it was truly voluntary under the proper constitutional test. It is important to note that no claim is made of any physical violence, threats of violence, unduly prolonged questioning, deprivation of food or sleep or similar misconduct or abuse by the police. Traub did claim that he was 'hollered at,' but this claim was not included in the finding and presumably was not credited by the court. In any event, Traub made no claim that he was intimidated or coerced by the 'hollering,' if in fact there was any. In our inquiry, we take the findings made by the trial court except for its findings and conclusions that the confessions were voluntary. These findings and conclusions we review in the light of the appendix to Traub's brief in order to make certain that the confessions were properly held admissible, as voluntary, under the test required by the fourteenth amendment. All of the testimony bearing on the admissibility of the confessions was presented to the court in the absence of the jury, and all material portions of that testimony appear to have been included in the transcript incorporated in Traub's printed...