STATE OF CONNECTICUT v. MARCELO CERVANTES
(AC 37649)
Appellate Court of Connecticut
April 4, 2017
Sheldon, Mullins and Flynn, Js.
Argued January 3
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(Appeal
Manuel A. Suarez, assigned counsel, for the appellant (defendant).
Matthew R. Kalthoff, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, former state’s attorney, and John P. Doyle, Jr., senior assistant state’s attorney, for the appellee (state).
Opinion
MULLINS, J. Following a conditional plea of nolo contendere, entered pursuant to
On August 12, 2014, before the defendant entered a conditional plea of nolo contendere, the state recited the following facts. On April 14, 2013, the Hamden Police Department received a 911 call reporting that a twenty-two year old female had been sexually assaulted. The caller, the victim in this case, stated that, at approximately, 2 a.m., she had awoken to find an unknown Hispanic male lying on top of her in her bed. The assailant removed her clothing, forced her to engage in penile-vaginal intercourse, oral intercourse, and attempted anal intercourse. Although the victim attempted to fight off the assailant, her resistance was met with strangulation, suffocation, and a punch to the face. The assault continued until approximately 4:15 a.m. At that time, the assailant left the premises after placing a sheet over the victim’s head and telling her that if she told anyone of the assault, he would kill her. The victim sustained injuries to her neck and her face.
Subsequently, the police developed the defendant as a suspect and went to speak with him at his place of employment. After some initial conversation, the defendant was transported to the Hamden Police Department. During the police interview prior to arriving at the police department, the defendant admitted to some of the conduct that occurred at the victim’s residence, although he described the encounter differently than did the victim.
The police informed the defendant of his constitutional rights in accordance with Miranda after they arrived at the police department, and the defendant signed a waiver of rights form. He then gave further statements about what had occurred on the night of April 14, 2013. Thereafter, the police arrested the defendant.
In a long form information, the state charged the defendant with two counts of sexual assault in the first degree, and one count of attempt to commit sexual assault in the first degree, home invasion, burglary in the first degree in violation of
On May 31, 2013, the defendant filed a motion to suppress the oral statements he had made to detectives while in the police vehicle. That motion was heard on April 9 and 17, 2014. In a June 10, 2014 memorandum of decision, the court denied the defendant’s motion. Subsequently, on August 12, 2014, the defendant entered a conditional plea of nolo contendere, and, per
Following the hearing on the motion to suppress, the court, in its memorandum of decision, set forth the following findings of fact, which are relevant to our analysis. ‘‘Detective Brian Stewart and Detective William C. Onofrio of the Hamden Police Department were assigned to investigate an alleged home invasion and sexual assault that had occurred on April 14, 2013 . . . in Hamden. During the course of the investigation, police received descriptive information about the perpetrator’s height, weight, and ethnicity. The alleged perpetrator was described as a five feet, six, to five feet, seven inches tall Hispanic male, with some sort of protruding belly or stomach. . . . On or about May 16, 2013, Detective Onofrio received information related to the case from Robert Carrasco. Carrasco left a voice mail [message] on Onofrio’s phone. The information from Carrasco was that an individual named Marcelino had been observed making sexual advances to an intoxicated female on the night of April 14, 2013, at a bar in Hamden, named Andales. Carrasco believed Marcelino to be a former employee of his business.3 Andales was located in close proximately to [the victim’s residence]. Onofrio was the lead detective assigned to investigate the case. . . . [On the basis of this and other] information received from Carrasco, Onofrio decided to travel to the Outback Steak House [Outback] located in Southington in an effort to determine the identity of . . . Marcelino. . . .
‘‘The detectives traveled from Hamden to Southington in an unmarked police vehicle. It had no lights affixed to the roof, nor any markings describing it as a police vehicle. . . . Onofrio operated the vehicle, and, when he arrived at Outback, he traveled through the parking lot and parked in the rear. The vehicle was not parked in a designated space. They arrived at approximately 5 p.m. Outback . . . [is] located in a plaza with other businesses nearby, although [it] ha[s] its own parking lot. . . . The police vehicle was parked approximately twenty-five feet away from some other vehicles parked in the lot. . . . A back door, used by the managers, would allow access to the rear of [Outback] and [the] parking lot, and [it] was located near [a] dumpster. Six or seven [Outback] employees worked in the area immediately adjacent to the back door. The back door had a window, and an employee could look out of the window if standing in front of the door. . . .
‘‘Onofrio and Stewart exited the vehicle and walked to the front doors of [Outback]. . . . Each wore plain clothes . . . . Either Onofrio or Stewart asked the hostess if the manager was available. Stewart observed an individual standing near the hostess who generally satisfied the description of
‘‘Lucas left Onofrio and Stewart outside and returned to the [Outback]. Shortly thereafter, Lucas proceeded through the front doors with [the defendant]. . . . The detectives asked the defendant for permission to speak with him. The defendant agreed to speak with the detectives, and Lucas returned to the [Outback]. . . . Onofrio, Stewart and the defendant began walking along the side of the building toward the rear of the building. Either Onofrio or Stewart told the defendant that they were investigating a crime but, at that point, did not provide the defendant with details. The defendant conversed with the detectives in English and indicated no difficulty with English comprehension. The defendant then was asked by detectives if he would be willing to speak to them in the police vehicle for privacy. The defendant agreed and was very cooperative. . . . The parking lot was busy, and [the] detectives did not want to discuss sexual assault allegations in a public parking lot.4
‘‘The defendant sat in the front seat of the vehicle. He was not physically placed into the vehicle by either detective. He was not directed to the vehicle by either detective pointing to it, nor was he physically led to the vehicle. The defendant used his own volitional movements to sit down in the front seat of the vehicle. He was not handcuffed. There is no evidence that any of the doors of the vehicle were locked. Onofrio then sat in the operator’s seat, and Stewart [sat] in the backseat. Although their service weapons were visible, neither detective handled, touched, or unholstered their weapon. Neither detective wore a bulletproof vest, or carried a baton, or spray canister. The vehicle did not contain a cage separating the front and back seats. . . .
‘‘Onofrio, at that point, further explained to the defendant that they were investigating a rape allegation and that a female had made a complaint that the police were pursuing. The defendant was asked if he had any information regarding the complaint. The defendant then described a consensual sexual encounter. Although he was nervous, the defendant was very cooperative and wanted to clear up the matter. He denied any wrongdoing. The detectives allowed him to tell his story and asked questions in an effort to clarify his account. The defendant remained in the vehicle, speaking with the detectives in the public
‘‘[T]he defendant was now a suspect. Although he had the ability to leave, the defendant was asked if he would be willing to speak to police further at the Hamden Police Department. The defendant was not told that he had to go to the police department. The defendant agreed to travel to the Hamden Police Department to continue the interview. Onofrio called the sergeant on duty to notify him that the defendant had agreed to be interviewed at the police department. The defendant was given the opportunity to drive his own vehicle to the police department. The defendant declined, indicating that, although he had a car, he did not have a driver’s license.5 The defendant could see his own vehicle from the police vehicle. The detectives did not inform Lucas that the defendant was leaving the premises with them, nor did the defendant ask to speak to Lucas before leaving . . . with police. The defendant left some property at [Outback], including his vehicle. The defendant did not tell the police about the property, or ask to retrieve it, nor did [the] police ask him about his need to retrieve any property.
‘‘While driving from Southington to Hamden, the defendant became emotional. He feared that his girlfriend and family would find out that he had engaged in a consensual sexual encounter with another woman. Most of the conversation in the car en route to Hamden concerned his girlfriend and his family. Once in Hamden, Onofrio drove the vehicle [by the victim’s residence], whereupon the defendant identified the house . . . .
‘‘The defendant then was brought to the Hamden Police Department, where he was brought inside through the employee entrance. He was not handcuffed, nor pulled or pushed into the building or interview room. He eventually was provided with Miranda warnings at approximately 6:29 p.m. State’s exhibit 1, a CD of the interview of the defendant at the police department, does not demonstrate any difficulty on the part of the defendant to either speak or understand English. The defendant acknowledged during the interview that he had accompanied Onofrio and Stewart to the police department to further discuss the incident.’’ (Footnotes added; internal quotation marks omitted.)
After finding those facts, the court concluded that the defendant was not in custody during his interrogation because he voluntarily spoke with the detectives, voluntarily accompanied them to the police vehicle, and voluntarily accompanied them to the Hamden Police Department. The court, thereafter, denied the defendant’s motion to suppress the statements he made to Onofrio and Stewart while in the police vehicle.
The defendant argues that he was in custody as soon as he entered the police vehicle, and that he underwent a custodial interrogation for ninety minutes thereafter. The state, although acknowledging that the detectives conducted an interrogation while in the vehicle, contends that the trial court properly concluded that the defendant, at all relevant times, was in the police vehicle voluntarily and was not in custody. We agree with the state.6
‘‘As used in . . . Miranda [and its progeny], custody is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. . . . In determining whether a person is in custody in this sense . . . the United States Supreme Court has adopted an objective, reasonable person test . . . the initial step [of which] is to ascertain whether, in light of the objective circumstances of the interrogation . . . a reasonable person [would] have felt [that] he or she was not at liberty to terminate the interrogation and [to] leave. . . . Determining whether an individual’s freedom of movement [has been] curtailed, however, is simply the first step in the analysis, not the last. Not all restraints on freedom of movement amount to custody for purposes of Miranda. [Accordingly, the United States Supreme Court has] decline[d] to accord talismanic power to the freedom-of-movement inquiry . . . and [has] instead asked the additional question [of] whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda. . . .
‘‘Of course, the clearest example of custody for purposes of Miranda occurs when a suspect has been formally arrested. As Miranda makes clear, however, custodial interrogation includes questioning initiated by law enforcement officers after a suspect has been arrested or otherwise deprived of his freedom of action in any significant way. . . . Thus, not all restrictions on a suspect’s freedom of action rise to the level of custody for Miranda purposes . . . .’’ (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) State v. Mangual, 311 Conn. 182, 193–94, 85 A.3d 627 (2014).
‘‘In assessing whether a person is in custody for purposes of Miranda, the ultimate inquiry is whether a reasonable person in the defendant’s position would believe that there was a restraint on [his] freedom of movement of the degree associated with a formal arrest. . . . Any lesser restriction on a person’s freedom of action is not significant enough to implicate the core fifth amendment concerns that Miranda sought to address.’’ (Internal quotation marks omitted.) State v. Arias, supra, 322 Conn. 177.
In Mangual, our Supreme Court set forth several ‘‘nonexclusive . . . factors to be considered in determining whether a suspect was in custody for purposes of Miranda: (1) the nature, extent and duration of the questioning; (2) whether the suspect was handcuffed or otherwise physically restrained; (3) whether officers explained that the suspect was free to leave or not under arrest; (4) who initiated the encounter; (5) the location of the interview; (6) the length of the detention; (7) the number of officers in the immediate vicinity of the questioning; (8) whether the officers were armed; (9) whether the officers displayed their weapons or used force of any other kind before or during questioning; and (10) the degree to which the suspect was isolated from friends, family and the public.’’ State v. Mangual, supra, 311 Conn. 196–97.
We next set forth the standard of review we employ when assessing the trial court’s denial of a motion to suppress
‘‘The ultimate inquiry as to whether, in light of these factual circumstances, a reasonable person in the defendant’s position would believe that he or she was in police custody of the degree associated with a formal arrest . . . calls for application of the controlling legal standard to the historical facts [and] . . . therefore, presents a . . . question of law . . . over which our review is de novo. . . . In other words, we are bound to accept the factual findings of the trial court unless they are clearly erroneous, but we exercise plenary review over the ultimate issue of custody.’’ (Citation omitted; internal quotation marks omitted.) Id., 197.
With these principles in mind, we turn to the merits of the defendant’s claim that his statements should have been suppressed because he was in custody the moment he entered the police vehicle, and that Onofrio and Stewart then conducted an interrogation of him without providing Miranda warnings. After applying the Mangual factors to the present case, we conclude that the trial court properly determined that the defendant was not in custody when he made oral statements to the detectives while being interrogated in the police vehicle.7
The record demonstrates that Onofrio and Stewart asked Lucas to go back into Outback and ask the defendant if he was willing to talk with them. The defendant then came out, voluntarily, to speak with Onofrio and Stewart. The detectives spoke with the defendant for three to five minutes before asking him if he would be willing to sit in the police vehicle for privacy. He agreed and was very cooperative with the detectives. The vehicle was located in the rear parking area of Outback, and there was a window from which employees could see that parking lot. Within a short period of time of being inside the vehicle, the defendant made several oral statements to the detectives, which he later sought to suppress.
The defendant told the detectives that he was familiar with the victim’s residence, having done work at that location for the property owner. He also told the detectives that he had met a woman in a bar who agreed to have sexual relations with
After being in the parked vehicle for approximately twenty minutes, the detectives asked the defendant if he would accompany them to the Hamden Police Department, and the defendant agreed. The detectives asked the defendant if he wanted to drive himself, but the defendant declined because he did not have a valid driver’s license, although his car was parked at Outback.
During the drive to the police department, the defendant primarily discussed his girlfriend and his family. He told the detectives that he was concerned that his girlfriend would find out that he had engaged in sexual relations with another woman. He also cried. While driving to the police station, the detectives also drove past the victim’s residence, and the defendant identified the house. Although the defendant claims that the drive by the victim’s house further demonstrates that he was in custody, there is nothing in the record that would indicate that this somehow transformed a noncustodial interrogation into a custodial interrogation. Indeed, at that point, the defendant already had admitted that he was familiar with the property and that he had engaged in sexual relations with a woman at that location on the night of April 13, 2013.
Looking at the circumstances presented here, nothing in the record suggests that, when the defendant made his incriminating statements to the detectives, there was any restraint on his freedom of movement to the degree associated with a formal arrest. The record shows that only two plainclothed detectives, Onofrio and Stewart, went to speak with the defendant at his job. When the detectives arrived, they first asked the manager to ask the defendant if he would be willing to speak with them. The detectives did not compel the defendant to speak with them, but, rather, he agreed and voluntarily spoke with the detectives outside of Outback, in a public place with which he was familiar. Indeed, the defendant stated that he wanted to ‘‘clear up the matter.’’ There is no indication that Onofrio and Stewart presented a show of force somehow orchestrated to overpower the defendant’s will to resist the interview and compel him to speak. In other words, this was not a police dominated atmosphere that contained inherently compelling pressures upon the defendant.
As the detectives conversed with the defendant outside, they asked him whether he would be willing to continue their conversation in their vehicle. The defendant was neither ordered nor forced into the vehicle. Rather, he voluntarily agreed to move the somewhat personal conversation from an outdoor area into the police vehicle. At no point was the defendant handcuffed, and the detectives did not isolate him from the public. Although both detectives wore their service revolvers, those revolvers properly were holstered, the detectives never intimated that those weapons might be used, and they did not use any other kind of force or threat of force before or during their questioning. Finally, after the defendant agreed to go to the police station, the detectives gave the defendant the option of driving himself rather than riding with them in the police vehicle. The defendant rejected the detectives’ offer for him to leave their vehicle and drive himself, and, instead, he agreed to have the detectives drive him to the
After considering all of the circumstances surrounding the defendant’s questioning, we cannot conclude that a reasonable person in the defendant’s position would believe that his freedom of movement was restrained to the degree associated with a formal arrest. See State v. Arias, supra, 322 Conn. 177. As such, we conclude that the defendant was not in custody when he made his oral statements to the detectives, and, therefore, the detectives were not required to provide him with an advisement of his rights under Miranda at that time. Accordingly, the trial court properly denied his motion to suppress.
The judgment is affirmed.
In this opinion the other judges concurred.