State v. Whitaker

• Decision Date: 24 July 1990
• Docket Number: No. 13728,13728
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Bernard WHITAKER.

Page 1031

578 A.2d 1031

215 Conn. 739

STATE of Connecticut v. Bernard WHITAKER.

No. 13728.

Supreme Court of Connecticut.

Argued May 9, 1990.

Decided July 24, 1990.

[215 Conn. 740] Robert M. Casale, Branford, Conn., with whom was Frank A. Iannotti, for appellant (defendant).

Timothy J. Sugrue, Deputy Asst. State's Atty., Wallingford, Conn., with whom, on Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL JJ.

the brief, were Michael Dearington, State's Atty., Milford, Conn., and David P. Gold, Asst. State's Atty., for appellee (state).

SHEA, Associate Justice.

The defendant, Bernard Tyrone Whitaker, was charged the crime of murder in violation of General Statutes §§ 53a-54a(a) ¹ and 53a-8. ² The defendant was seventeen years old at the time of his arrest. Prior to the trial, the defendant filed a motion to suppress inculpatory oral statements he had allegedly made to a police officer during a custodial interrogation at the police station. After a hearing, the court denied the motion, and the police officer testified at the trial concerning the defendant's statements. The defendant testified at the hearing, but not at his trial. After a jury trial, he was convicted and sentenced to a term of fifty years imprisonment. On appeal from the judgment, the defendant challenges the trial court's admission into evidence of testimony concerning his inculpatory statements, arguing that he had not knowingly and voluntarily waived his rights to remain silent and to consult with counsel prior to making the statements. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant was involved in drug dealing in the Pine Street area of New Haven. After a group of Jamaicans from the Liberty Street area of New Haven threatened to take over the Pine Street area narcotics trade, the defendant and two companions went to the Liberty Street area to shoot some of the Jamaicans and intimidate others into abandoning the takeover. When they arrived, they saw a man whom one of the defendant's companions identified as being Jamaican, not from personal knowledge, but from the man's appearance. The defendant and his companions opened fire on the unknown Jamaican and killed him. They fled on foot, but were confronted by two uniformed police officers who were in the area investigating an unrelated complaint. The officers pursued the assailants but caught only the defendant. Police later retrieved the defendant's gun from under a car where he had thrown it during the chase, and found bullets and casings from the gun near the victim's body. During questioning, the defendant confessed to the shooting.

The admissibility of a confession is initially a question of fact for the trial court. State v. Madera, 210 Conn. 22, 40, 554 A.2d 263 (1989); State v. Schroff, 206 Conn. 182, 195-96, 536 A.2d 952 (1988); State v. Derrico, 181 Conn. 151, 162-63, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S.Ct. 789, 66 L.Ed.2d 607 (1980). In view of the constitutional dimension of the issue, the trial court's finding of voluntariness is, however, subject to "an independent and scrupulous examination of the entire record to ascertain whether the trial court's finding is supported by substantial evidence." State v. Smith, 200 Conn. 465, 478, 512 A.2d 189 (1986). We review the record in its entirety, and are not limited to the evidence before the trial court at the Our examination of the record relating to the interrogation reveals the following. The defendant was apprehended at his girlfriend's house, a few blocks away from where the police had begun the chase. He was arrested on a weapons charge and brought to the Investigative Services Unit at New Haven police headquarters. The defendant told the arresting officer that he was fifteen years old, but by the time he was questioned had informed the officers of his correct age, seventeen. After the arrest, officers found that a man, Marlin Williams, had been shot to death at the site of the gunshots. The defendant was questioned, therefore, in connection with the victim's shooting. ³

time the ruling was made on the motion to suppress. Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976); State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986).

The defendant was taken to the third floor of the police station and brought to a conference room adjoining the principal central room (the detective bureau) with tall windows looking to the outside and to the adjoining detective bureau. The room was fairly large with no "hot lights." There he was interrogated by patrol officer Joseph Pettola. Although other police officers came in and out and did ask the defendant questions, the interrogation was primarily one-on-one, between the defendant and Pettola. Pettola testified that the interrogation began at 8:30 p.m., while the defendant first testified that it began at 7 p.m., but then conceded that it might have begun later. The interview ended either between 11:30 p.m. and midnight (according to Pettola) or between 12:45 and 1 a.m. (according to the defendant). Both sides agree that the interrogation took at least three hours. After the interrogation was over, Pettola prepared his written report of the interrogation, which he dictated at 2 a.m.

I THE DISPUTED EVENTS

What happened during the interrogation is the core of the dispute. The police officer, Pettola, testified as follows. Before the questioning began, he took out a combined "rights" card-waiver form ⁴ printed with standard language informing the arrestee of his Miranda rights. ⁵ He gave the form to the defendant to read and also read it aloud to him. At the suppression hearing, Pettola testified that he asked the defendant whether he knew how to read, but at trial, he testified that he did not recall so doing. He did not ask the defendant any questions about his level of education or his prior experience with the police.

After reading the defendant the first section of the form, which advised the defendant of his rights, Pettola went on to read him the waiver section. Pettola went through the waiver section line by line, and after each line, specifically asked the defendant whether he understood that right and whether he waived that right. Each time he was asked whether he understood the right and whether he waived it, the defendant answered "yes." Each time he answered "yes," Pettola asked him to initial the form, but the defendant refused, saying he would not sign anything. When asked if he wanted to make a written statement, he refused. When Pettola brought out a tape recorder and asked him if he wanted to make a recorded statement, the defendant said, "Nothing on tape." Yet, when asked if he would give an oral statement, the defendant said, "[I'll] do that." There were no witnesses other than Pettola to these responses. Although two or three police detectives were present at times during the interrogation, Pettola did not recall whether any of them had witnessed the defendant's oral waiver of rights, and the detectives never testified on this subject at either the suppression hearing or the trial. ⁶

After the defendant had agreed to make an oral statement, the questioning began. For approximately the next three hours, Pettola asked questions, and the defendant answered them. During the questioning, the defendant appeared calm and not intimidated. There was no indication that his mind was impaired by alcohol, drugs or any mental disability. First he gave exculpatory answers that Pettola in testimony referred to as "the wrong answers." Part way through the interview, however, the defendant began to explain his involvement in the killing. Once the defendant had given Pettola a story that Pettola found believable, because it was consistent with the information supplied by the arresting officers, the defendant said he would not answer any more questions, and the interview concluded.

At the suppression hearing, the defendant's version of the events differed materially from Pettola's. The defendant first testified that he was neither advised of his rights nor asked to waive them, that he was not shown a "rights" card/waiver form, and that he had refused to answer any questions. When the hearing resumed after a recess, however, he changed his testimony. This time, he said that he was shown a waiver form, although it was not read to him, and that he was asked to sign it, but refused. He also said that he knew his rights from prior experience, which he described as "do I want a lawyer or do I want to speak--do I have to speak in front of my parent." ⁷ He testified that he had, in fact, answered some questions, but only to explain what he was doing in the area. He denied telling Pettola the names of his companions, although the defendant's companions had not been apprehended at the time Pettola prepared the report giving their names and addresses. He denied that Pettola ever offered him anything to eat or drink, but never said that he had, in fact, been hungry, thirsty, tired, or fearful.

The defendant's version of events also differs from Pettola's in other respects. At the suppression hearing, the defendant testified that he had asked for a lawyer several times. ⁸ Pettola, on the other hand, testified that at no time did the defendant ask to speak to an attorney.

The defendant also testified, and Pettola did not dispute, that several times during the course of the interrogation the defendant asked to be allowed to telephone his mother. Precisely when he made each request is unclear, but there is no dispute that he made his requests several times throughout the interrogation. Pettola expressly stated that the defendant never said he wanted to speak to his mother in order to ask her to get him an attorney, and the defendant did not contradict this point. The defendant never explained why he wanted to speak to his mother. The defendant also claimed Pettola...