219 Conn. 743 | Conn. | 1991
The defendant, Ralph Birch, was charged in a substitute information with the crime of felony murder in violation of General Statutes § 53a-54c.
On appeal, the defendant argues that his conviction should be vacated and a new trial ordered because the trial court incorrectly denied his motion to suppress his responses to police questioning and erroneously allowed those responses into evidence at his trial.
The relevant facts are undisputed. On December 5, 1985, the defendant was arrested and charged with larceny and burglary. The larceny charge pertained to the theft of a 1973 Buick that had been stolen in Brook-field on November 29,1985, while the burglary charge
On December 9, 1985, police officers investigating Carr’s death arrived at the correctional center to execute a search warrant authorizing the taking of blood and hair samples from the defendant. Those officers were accompanied by Detective Scott O’Mara and Sergeant John Mucherino of the Connecticut state police, who were also investigating Carr’s death. After the blood and hair samples had been obtained from the defendant, O’Mara and Mucherino took the defendant to an interview room at the correctional center for questioning.
Before questioning the defendant, O’Mara advised him of his Miranda
The defendant was subsequently arrested and charged with felony murder on January 25, 1989. At his felony murder trial, the defendant moved to suppress his responses to O’Mara’s and Mucherino’s inquiries because his responses were allegedly obtained in violation of both his federal and state constitutional rights to counsel.
The defendant contends that his motion to suppress should have been granted by the trial court because his
When this case was argued, there existed a split of authority as to whether a defendant who requests the appointment of an attorney at his arraignment, thereby invoking his sixth amendment right to counsel, also invokes his fifth amendment right to counsel for subsequent custodial interrogations concerning other unrelated, uncharged crimes. Compare United States v. Roberts, 869 F.2d 70 (2d Cir. 1989); People v. Bryant, 202 Ill. App. 3d 291, 559 N.E.2d 930 (1990); People v. Crusoe, 433 Mich. 666, 449 N.W.2d 641 (1989); State v. Sparklin, 296 Or. 85, 672 P.2d 1182 (1983); State v. Stewart, 113 Wash. 2d 462, 780 P.2d 844 (1989), cert. denied, 494 U.S. 1020, 110 S. Ct. 1327, 108 L. Ed. 2d 502 (1990); with United States v. Wolf, 879 F.2d 1320 (6th Cir. 1989); United States ex rel. Espinoza v. Fairman, 813 F.2d 117 (7th Cir.), cert. denied, 483 U.S. 1010, 107 S. Ct. 3240, 97 L. Ed. 2d 745 (1987); People v. Perry, 205 Ill. App. 3d 655, 563 N.E.2d 1144 (1990), appeal granted, Ill. 2d , 567 N.E.2d 339 (1991). Subsequently in McNeil v. Wisconsin, 501 U.S. , 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991), on indistinguishable facts, the United States Supreme Court resolved that disagreement when it held that the sixth amendment right to counsel is “offense-specific.”
In McNeil, the court noted that in Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986), it had held that once the sixth amendment right
The court reasoned that “ ‘[t]he police have an interest .. . in investigating new or additional crimes [after an individual is formally charged with one crime.] . . . [T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities. . . .' Maine v. Moulton, 474 U.S. 159, 179-80 [106 S. Ct. 477, 88 L. Ed. 2d 481] (1985).” McNeil v. Wisconsin, supra, 2207-2208. “ ‘Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.’ [Maine v. Moulton, supra,] 180 n.16.” McNeil V. Wisconsin, supra, 2208; see also Moran v. Burbine, 475 U.S. 412, 431, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). The court noted, therefore, that because McNeil had provided the statements at issue before his
In McNeil, the court also disposed of the defendant’s claim of a right to counsel under the fifth amendment, which provides that “‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself.’ In Miranda v. Arizona, 384 U.S. 436 [86 S. Ct. 1602, 16 L. Ed. 2d 694] (1966) [the United States Supreme Court] established a number of prophylactic rights designed to counteract the ‘inherently compelling pressures’ of custodial interrogation, including the right to have counsel present. Miranda did not hold, however, that those rights could not be waived. On the contrary, the opinion recognized that statements elicited during custodial interrogation would be admissible if the prosecution could establish that the suspect ‘knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.’ ” McNeil v. Wisconsin, supra, 2208.
In Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378, reh. denied, 452 U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981), the court, however, established a second layer of protection for the Miranda right to counsel. In Edwards, the court held that once a suspect being interrogated asserts a fifth amendment right to counsel, “not only must the current interrogation cease, but [the suspect] may not be approached for further interrogation ‘until counsel has been made available to him,’ [id., 484-85] . . . .” McNeil v. Wisconsin, supra, 2208. That means, as the court has recently held, “that counsel must be present,
As did McNeil, the defendant here seeks to prevail by combining his sixth amendment right to counsel and his Miranda-Edwards fifth amendment right to counsel. He argues that even though he expressly waived his Miranda right to counsel
The court went on to determine that the result urged by McNeil was not compelled by Michigan v. Jackson, supra, or Edwards v. Arizona, supra. It concluded, rather, that the invocation by McNeil of his sixth amendment right to counsel at his arraignment did not trigger his Miranda right to counsel so as to prohibit subsequent police initiated interrogation concerning unrelated, uncharged crimes. McNeil v. Wisconsin, supra, 2209-10. McNeil controls this case.
The judgment is affirmed.
In this opinion the other justices concurred.
“[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious injury.”
Shawn Henning, a coparticipant in the December 2 burglary, was tried separately and was also convicted of felony murder.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Although the defendant invoked both the federal constitution and article first, § 8 of the Connecticut constitution, “he has proffered no argument that the rights afforded to him by the federal and the state constitutions are in any way distinguishable with respect to the substantive issue that he has raised. We see no reason, on the facts of this case, independently to undertake such an analysis.” State v. Braxton, 196 Conn. 685, 688 n.2, 495 A.2d 273 (1985).
The responses to questioning that are sought to be suppressed relate to a photograph of the bloodied body of the victim that was shown to the defendant. The police officers testified that the defendant visibly “spasmed” when shown the photograph and then asked if an area not shown in the photograph, but just beyond the frame, was the bathroom (which, in fact, it was). When questioned further as to his means of knowledge of the location of the bathroom, the defendant threatened to “punch in the face” of Sergeant Mucherino.
The defendant also argues in his brief that certain statements he made to Sergeant Joseph Samoska of the New Milford police department in a telephone call from the Litchfield community correctional center on December 7,1985, should have been suppressed. The call was initiated by Shawn Henning who put the defendant on the line with Samoska. The record indicates, however, that no statements made by the defendant during that telephone conversation were ever admitted into evidence before the jury. Error cannot be predicated on the trial court’s failure to order the suppression of statements that were not ultimately used at trial.
The defendant in his brief or in oral argument did not present any arguments to contest the voluntariness and validity of the waiver of his Miranda