State v. Usry, 12799

• Decision Date: 17 November 1987
• Docket Number: No. 12799,12799
• Citation: 533 A.2d 212,205 Conn. 298
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Kevin USRY.

Page 212

533 A.2d 212

205 Conn. 298

STATE of Connecticut v. Kevin USRY.

No. 12799.

Supreme Court of Connecticut.

Argued Oct. 1, 1987.

Decided Nov. 17, 1987.

Gerard A. Smyth, Asst. Public Defender, with whom was Patrick J. Culligan, Asst. Public Defender, for appellant (defendant).

Susan C. Marks, Deputy Asst. State's Atty., with whom were John M. Massameno and Herbert E. Carlson, Jr., Asst. State's Attys., for appellee (State).

Before PETERS, C.J., and HEALEY, GLASS, COVELLO, and HULL, JJ.

GLASS, Associate Justice.

The defendant, Kevin Usry, was arrested on October 22, 1982, for murder and was subsequently indicted for capital felony in violation of General Statutes § 53a-54b(7), ¹ felony murder in violation of General Statutes § 53a-54c, ² and murder in violation of General Statutes § 53a-54a. ³ The defendant was tried by a jury, found guilty on all three counts, and sentenced to three concurrent life terms of imprisonment on May 6, 1985. He now appeals that conviction.

The jury could reasonably have found the following facts. The victim was discovered dead in her New Britain apartment on the morning of September 8, 1982. She was found naked from the waist down with bloody garments pulled over her head and with a white fluid-like substance around her vaginal area. The police had been notified by a neighbor, Peter Melinoskas, who had become concerned after observing an open window with a metal folding chair placed below it and noticing that the victim's car was parked in the driveway. After yelling through the open window and receiving no response, Melinoskas entered the building through an open basement door, and entered the victim's apartment through the door which was slightly ajar. He found the victim's body and left the house to call the police.

Both the New Britain police department and the state police conducted the investigation. A videotape was taken of the crime scene and both latent and patent fingerprints were found. Some of these prints were identified to be those of the defendant. The cause of the victim's death was determined to be depressed compound skull fractures. A brick was found at the scene which was consistent with the type of instrument that caused the victim's injuries. Forensic testing indicated that sexual intercourse had occurred at a time close to the victim's death, and body fluid tests indicated that intercourse had occurred between a man with type A blood and a woman with either type O or type A blood. The victim's blood type was O, and it was later learned that the defendant's blood type was A. A combing of pubic hair from the victim, a caucasian, revealed the presence of negroid pubic hair. The defendant is black. A warrant was issued for the defendant's arrest and he was arrested on October 22, 1982, and taken into custody. Prior to the defendant's arrest the police learned from New Britain High School officials that he was a special education student. While in custody the defendant made inculpatory statements.

The defendant appeals, claiming that: (1) the trial court erred in failing to suppress the inculpatory statements made to the police; (2) the trial court's instructions pertaining to capital felony were erroneous; and (3) the trial court erred in rendering judgment on the murder conviction after the jury returned guilty verdicts on both the capital felony and felony murder counts of the indictment. We find no error as to the first claim, harmless error as to the second claim, and error as to the third claim.

I

The defendant's first claim is that the trial court erred in denying his motion to suppress statements obtained in violation of his rights under the fourth, fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Specifically, the defendant claims that: (1) his statements were obtained without a proper waiver of the rights afforded him under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (2) the police failed to honor his invocation of his right to remain silent; (3) the statements were involuntary; and (4) the statements were the fruit of an illegal arrest because the arrest warrant was insufficient on its face in that it was not supported by probable cause. We conclude that the trial court did not err in allowing the defendant's incriminating statements to be admitted into evidence at his trial.

The following additional facts are relevant to our consideration of the motion to suppress. The defendant was arrested at his home on October 22, 1982, by members of the New Britain police department. He was advised of his Miranda rights inside the house and again in the police car. The defendant indicated at both times that he understood his rights. The defendant was transported to the police station where he was booked, placed in an interview room and once again advised of his Miranda rights. The police officers read the defendant a standard waiver form, handed the form to him to read and asked him if he understood the form. The defendant replied "I know all that shit," and signed the waiver portion of the form.

The defendant was questioned as to his whereabouts on the night of the murder. He was noncommittal and said that the only information he had was what he read in the newspaper. At some point during this interview, the defendant requested to make a telephone call to his mother and this request was granted. When asked if he wished to make a statement, the defendant replied that "he had nothing to make a statement about." The officers asked the defendant to consider the situation and concluded the interview and exited the room.

The officers reentered the interview room an hour later, and asked the defendant if he wished to use the toilet or have something to eat. The defendant said he did not. The officers also asked whether he remembered his rights, which he said he did, and again the officers read the defendant his Miranda rights. After some general questioning, and denial of involvement by the defendant, an officer asked him if he thought the police believed that "the tooth fairy picked him up, flew him around New Britain and placed his hands all over my crime scene." The defendant responded with exculpatory statements. He stated that he was walking on Park Street on the night of the murder, heard a woman scream, went to investigate, climbed a chair to look through a window and saw a man and a woman fighting. The defendant next stated that the man saw him and threw something at him, causing him to fall off the chair and lose consciousness. He then volunteered that "someone must have put my fingerprints on the brick." The defendant had not yet been informed that a brick had been used in the assault. At this point the defendant agreed to make a statement.

The defendant next indicated that he wished to speak with Robert Smith, who previously had been his public defender. After having been informed by the police that Smith was no longer a public defender, the defendant agreed to make a statement without Smith's presence. The officers again informed the defendant of his rights, read him the waiver form and began the process of taking a formal statement. At the end of the interview the officer who took the statement asked the defendant to read it and asked whether he wanted to make any changes. The defendant responded that the statement was "all right the way it was." When asked to sign a second waiver form and the statement, however, he refused. The defendant stated that he was a special education student and indicated for the first time that he did not understand his constitutional rights and that he had trouble reading.

A

The defendant's first claim is that the trial court should have suppressed his incriminating statements because the police failed to obtain a knowing and intelligent waiver of his Miranda rights. The defendant bases this claim on the following assertions: (1) that although he signed a waiver form prior to the first interview, he was uncooperative and was mentally incompetent to waive those rights knowingly and intelligently; and (2) that the incriminating statement was given in a subsequent interview, without a new waiver having been signed. We are unpersuaded.

"The state has the burden of proving by a preponderance of the evidence that the defendant knowingly and intelligently waived his Miranda rights. State v. Hernandez, 204 Conn. 377, 395, 528 A.2d 794 (1987); State v. Chung, 202 Conn. 39, 48, 519 A.2d 1175 (1987); State v. Toste, 198 Conn. 573, 579-80, 504 A.2d 1036 (1986). The waiver must be made voluntarily and 'with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.' Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986)." State v. Boscarino, 204 Conn. 714, 743, 529 A.2d 1260 (1987). " '[T]he question of waiver must be determined on "the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. 458, 464 [58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) ].' North Carolina v. Butler, [441 U.S. 369, 374-75, 99 S.Ct. 1755, 1758, 60 L.Ed.2d 286 (1979) ]." State v. Toste, supra, 198 Conn. at 580, 504 A.2d 1036.

In Toste, we set forth factors that may be considered by the court in determining whether an individual had the capacity to understand the Miranda warnings, including: "the defendant's experience with the police and familiarity with the warnings; Fare v. Michael C., [442 U.S. 707, 726, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197, reh. denied, 444 U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979) ]; State v. Alfonso, [195 Conn. 624, 630-31, 490 A.2d 75 (1985) ]; People v. Medina, 71 Ill.2d 254, 259, , 375 N.E.2d 78 (1978); his level of intelligence, including his IQ; Cooper v. Griffin, 455 F.2d 1142, 1145 (5th Cir.1972); State v. Benoit, 440 So.2d 129,...