State v. Weidenhof, 13021

Decision Date17 November 1987
Docket NumberNo. 13021,13021
Citation205 Conn. 262,533 A.2d 545
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Daniel WEIDENHOF II.

Kevin C. Connors, Hebron, for appellant (defendant).

Carolyn K. Longstreth, Deputy Asst. State's Atty., with whom, on brief, was Donald B. Caldwell, State's Atty., for appellee (State).

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

PETERS, Chief Justice.

The principal issue in this appeal is whether the trial court erred in admitting into evidence the incriminatory statements that the defendant made during a custodial interrogation. The defendant, Daniel Weidenhof II, was charged in a three count information with the crimes of kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a, 1 threatening in violation of General Statutes § 53a-62, 2 and having a weapon in a motor vehicle in violation of General Statutes § 29-38. 3 After a jury verdict finding him guilty on all counts, the defendant was sentenced to a total effective term of ten years imprisonment, to be suspended after two and one-half years and followed by five years of probation. The defendant appeals from this judgment. We find no error.

The jury could reasonably have found the following facts. About 4:30 p.m. on Saturday, November 9, 1985, the victim, a nineteen year old man, was hitchhiking on Route 195 in Willimantic in order to go to work at a convenience store on the University of Connecticut campus at Storrs. He got a ride in a car driven by a lone white male in his late thirties, later identified as the defendant. On the passenger seat of the car there were several magazines, one of which was an explicitly homosexual publication bearing the title "Blue Boy."

During the ride to Storrs, the defendant placed his hand on the victim's knee, called him a "pretty boy," and indicated his interest in homosexual relations. The victim declined and asked to be dropped off at the next traffic light. When the victim sought to leave the car as it approached the Storrs campus, the defendant objected, pulled out a gun and threatened to "blow [the victim's] head off." As the car slowed for a traffic light, the victim managed nonetheless to jump out and make his way to his place of employment.

The victim reported the incident to the state police later that evening. Several days later, as the result of a further interview, with the assistance of Sergeant Frank Griffin, the victim put together a composite rendering of the operator of the car. The victim selected the defendant's photograph out of a photo array presented to him on January 24, 1986.

On the basis of this information, the police obtained search and arrest warrants that were simultaneously served upon the defendant outside his apartment in the late afternoon of February 4, 1986. Pursuant to these warrants, the police arrested the defendant, searched his apartment and seized his car. In the apartment, they found and seized an automatic pistol, a revolver, an ammunition clip and several homosexual magazines including an issue of "Blue Boy."

Immediately upon the defendant's arrest, the police advised him of his constitutional rights and the defendant initialed a card attesting to that fact. The defendant was then taken for questioning to Troop C headquarters in Stafford Springs. During the subsequent interrogation, the defendant acknowledged that he was a homosexual, that he kept homosexual magazines in his car, and that, on the previous November 9, he had picked up a hitchhiker on Route 195 and had driven him to Storrs. The defendant denied, however, having had a gun in his car or in any other way having committed the crimes with which he was charged.

In appealing from the judgment of conviction, the defendant has raised seven claims of error. He alleges that the trial court erroneously: (1) admitted the defendant's incriminatory statements into evidence; (2) limited the defendant's cross-examination of Sergeant Griffin; (3) admitted the defendant's uncharged prior acts of misconduct into evidence; (4) admitted hearsay testimony of out-of-court identifications of the defendant into evidence; (5) admitted a composite drawing into evidence; (6) admitted a weapon seized from the defendant's apartment into evidence; and (7) admitted a homosexual magazine seized from the defendant's house into evidence. We may conveniently consider jointly the defendant's first two claims, which have constitutional implications, and then his remaining evidentiary claims. We find no error.

I

The defendant's first two claims of error relate to his challenge of the voluntariness of the incriminatory statements that he made to the state police. He first claims that the trial court erred in admitting into evidence the oral statements that he had made to Sergeant Griffin during the custodial interrogation that immediately followed his arrest on February 4, 1986. These statements were inadmissible, according to the defendant, because, although he had been warned of his constitutional privilege against self-incrimination in accordance with the rules laid down in Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), 4 he had not knowingly, intelligently and voluntarily waived his constitutional privilege. His second claim is that the trial court unduly limited his cross-examination of Griffin concerning his alleged waiver of his constitutional rights. We find no error in either of these rulings.

The state bears the burden of proving, by a preponderance of the evidence, that a defendant has knowingly, intelligently and voluntarily waived the rights that inhere in the privilege against self-incrimination. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626-27, 30 L.Ed.2d 618 (1972); State v. Boscarino, 204 Conn. 714, 743, 529 A.2d 1260 (1987); State v. Hernandez, 204 Conn. 377, 395, 528 A.2d 794 (1987); State v. Gray, 200 Conn. 523, 533, 512 A.2d 217, cert. denied, --- U.S. ----, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986). By admitting the defendant's custodial statements into evidence, the trial court implicitly determined, as a finding of fact, not only that the defendant had been adequately warned about his Miranda rights but also that he had properly waived these rights. 5 Because the finding of waiver implicates important constitutional rights, our review of this finding of fact requires us to undertake "a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence." State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S.Ct. 3496, 73 L.Ed.2d 1375 (1982); State v. Hernandez, supra; State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S.Ct. 1785, 76 L.Ed.2d 354 (1983).

The record in this case demonstrates that, before beginning the interrogation at Troop C headquarters, Griffin reminded the defendant that he had previously been informed of his constitutional rights. The defendant had indeed earlier initialed a card containing Miranda warnings, and had orally indicated his understanding of those warnings. After the reminder, Griffin asked the defendant whether he would be willing to answer questions without an attorney present. The defendant replied affirmatively and proceeded to respond in detail to the questions that Griffin put to him. The defendant, however, neither gave the police a written statement nor did he execute a written waiver of his constitutional rights.

The testimony of the police concerning the circumstances of the defendant's interrogation depicts a literate adult, with an adequate command of the English language, who was "calm, cooperative, [and] competent," who participated willingly in their dialogue, and who was not under the influence of either drugs or alcohol. There is no evidence to the contrary. Significantly, there is neither allegation nor evidence that the police resorted to threats, promises or other improper tactics to induce the defendant to make incriminatory statements.

The defendant advances two related arguments in support of his contention that this record is insufficient to establish waiver. As a general matter, he characterizes the record that we have summarized above as "virtually barren" with respect to proof of waiver. This claim is unsustainable on its face. The unchallenged testimony of the police officers, coupled with the absence of any allegations of fact that cast doubt upon the knowing and voluntary nature of the defendant's waiver, suffice to support the trial court's factual finding. See State v. Aversa, 197 Conn. 685, 697, 501 A.2d 370 (1985). As a further, more specific, claim of error, the defendant would have us draw an inference against waiver from the failure of the police to ask the defendant, in so many words, whether he wished to waive or give up his constitutional rights. Despite the adequacy of the Miranda warnings that he received and understood, it was not enough, according to the defendant, to ask him whether he was willing to answer questions without an attorney present. In effect, the defendant would have us condition the validity of a waiver on the utterance of talismanic words. We decline to do so. Apart from the absence of any authority for so rigid a principle, we doubt that a mandatory reference to "constitutional rights" would be more likely to communicate to lay persons the essence of the privilege against self-incrimination than the question that was put to the defendant in this case. Cf. State v. Suggs, 194 Conn. 223, 227-28, 478 A.2d 1008 (1984). As did the trial court, we conclude that the state has met its burden of proving, in light of the totality of the circumstances, that the defendant's waiver was knowing, intelligent and voluntary.

The defendant's related constitutional claim on the issue of waiver challenges the trial court's rulings limiting...

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    ...of how the composite was prepared and of how accurately it portrays that which it is intended to depict." State v. Weidenhof, 205 Conn. 262, 275, 533 A.2d 545 (1987).19 The defendant also claims that because this evidence actually was created by and through the use of a computer, it is comp......
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