252 Conn. 274 | Conn. | 2000
Opinion
The defendant, Christopher Haf-ford, was tried before a three judge panel, Barry, Norko and Langenbach, Js., and convicted of capital felony in violation of General Statutes § 53a-54b (7), felony murder in violation of General Statutes § 53a-54c, murder in violation of General Statutes § 53a-54a, robbery in the first degree in violation of General Statutes § 53a-134 (a) (1) and (3), burglary in the first degree in violation of General Statutes § 53a-101 (a) and sexual assault in the first degree in violation of General Statutes § 53a-
The panel reasonably could have found the following facts. On July 14,1991, the defendant arrived at Grillo’s Shell Station, a convenience store and gas station in Windsor Locks, sometime after 7 a.m., planning to commit a robbery. When all the customers had left the store, the defendant put on a pair of latex gloves, armed himself with a knife and entered the station. The defendant approached the lone station attendant, Theresa Ann Rafferty, the victim, displayed his knife and demanded the money in the cash register. The victim
At 7:30 that morning, Richard O’Brien arrived at the gas station. When O’Brien entered the station, he saw bloody footprints on the floor, leading toward the back room. O’Brien followed the footprints into the back room and saw the victim’s naked and bloody body. O’Brien exited the store to call the police. As he was leaving, O’Brien met Frederick Britschock, who was driving up to the station. O’Brien told Britschock not to enter the store because a crime had been committed. O’Brien quickly drove home and called the police. Britschock also called the police from the pay telephone outside the station. When O’Brien returned, he and Britschock waited in front of the station for the police to arrive.
At that time, the defendant, who was still inside the three bay area of the station, threw a fire extinguisher through a glass door to escape from the building. O’Brien heard the crash of glass. He and Britschock looked toward the noise and saw the defendant exit the building, get into his car and begin to drive away. They ran after the car, pointing at it. David Clark, an ofl-duty Windsor Locks police officer, was driving by the station when he saw the two men gesturing toward the car- that was leaving it. Clark heard O’Brien shout “That is him!” Clark chased the defendant’s car north toward Massachusetts, but ended his chase because he did not have radio contact with the Windsor Locks police department. At 7:38 a.m., Clark telephoned the Windsor Locks police and gave a description of the
James Donovan III, a police officer in Agawam, Massachusetts, saw the defendant’s car parked in front of a convenience store in Agawam at 7:50 a.m. Donovan pulled his cruiser behind the defendant’s car and called for assistance. When the defendant came out of the convenience store, Donovan asked him if the car was his. The defendant answered “yes,” and Donovan pointed his pistol and ordered the defendant to put his hands on the hood of the cruiser. Agawam Police Officers Mark Pfau and Steven Grasso then arrived at the scene, at which time Pfau read the defendant his Miranda
The defendant was placed in a holding cell at the Agawam police department. Around 9:30 p.m., Connecticut State Police Detectives Ronald Ruel and Harold McDermott executed a search warrant for evidence from the defendant’s person. McDermott read the defendant his Miranda rights before executing the search warrant, and the defendant indicated that he understood those rights. McDermott then collected samples of hair, blood and saliva from the defendant
On appeal, the defendant makes five claims. First, he claims that the trial court improperly denied his motion to suppress his confession, which the defendant claims had been obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Second, the defendant argues that he is entitled to a new trial because the three judge panel failed to obtain a waiver of his right to trial by jury. Third, the defendant claims that the trial court lacked jurisdiction over the charge of felony murder predicated on sexual assault in the first degree because there was never a finding of probable cause as to that offense. Fourth, the defendant argues that there was insufficient evidence of a burglary to support the charges of burglary in the first degree and felony murder based upon a predicate felony of burglary. Fifth, the defendant claims that the three judge panel improperly admitted into evidence, in violation of the corpus deliciti rule, his confession that he had sexually assaulted the victim. We reject each of the defendant’s arguments, and we affirm his convictions.
I
The defendant first claims that the court improperly denied his motion to suppress his confession to Ruel, one of the Connecticut state police detectives. The fol
At approximately 9:30 p.m. that evening, while executing a search warrant upon the defendant’s person, Ruel asked the defendant if he wanted to make any statements regarding his arrest. The defendant answered that he did not want to make any statements at that time and that he thought he would call his mother because she might have called a lawyer. Ruel told the defendant that the Agawam police officers would allow him to make that call. Without any further conversation, Ruel and McDermott left the defendant to return to Connecticut.
At 10:30 p.m., Officer Stanley Chmielewski, Jr., of the Agawam police, was fingerprinting the defendant in the booking room of the Agawam police department. The defendant asked Chmielewski what would happen to him next. Chmielewski answered that he did not know because the Connecticut state police were in charge of the investigation. The defendant then told Chmielewski that he would like to talk to the Connecticut police. Chmielewski relayed this information to his lieutenant.
Ruel was getting into his car to leave the Agawam police station when an officer called him back into the building, saying that the defendant had asked to speak with the Connecticut police. Later, Ruel entered the
When he finished typing, Ruel showed the statement to the defendant and asked him to make any corrections or changes that he wanted to include.
At 2:38 a.m. on July 15, 1991, Agawam emergency medical technician Kenneth Blair and Officer Paul Mur
At trial, the defendant moved to suppress the oral and written confessions given to Ruel during the night of July 14, 1991, and into the early morning hours of July 15, 1991. The court denied the defendant’s motion. The defendant moved for an articulation of decision. In a memorandum of decision, the court made the following findings: “(1) That on July 14, 1991, the defendant was in police custody at the Agawam, Massachusetts police department; (2) That at approximately 10:30 p.m., on July 14, 1991, the defendant notified a member of the Agawam Police Department that he wanted to talk to a Connecticut investigative officer; (3) That Detective Ruel was notified of the defendant’s wishes and responded by going to the defendant’s cell where, at approximately 11:14 p.m., [Ruel] advised [the defendant] of his Miranda rights and the defendant waived them; (4) That earlier that evening the defendant indicated to Detective Ruel that his mother may have called an attorney [and] Ruel advised him that he would be allowed to make calls but the defendant made no response to that offer; (5) That the defendant told Detective Ruel ‘that he did want to tell us about what had happened and something to the effect of wanting to get it off his chest’; (6) That at no time did the defendant specifically invoke his right to counsel during the late evening of July 14, 1999 or the early hours of July 15, 1991.” The court concluded that “the oral and written statements made by the defendant to Detective Ruel on July 14, 1991 and July 15, 1991 were made voluntarily by the defendant after being advised of his Miranda rights and after the defendant knowingly and intelligently waived those rights.”
The defendant claims that the trial court improperly concluded that the defendant had waived his rights
The state argues that the defendant waived his right to challenge the admissibility of his confession when he used that confession as evidence of a mitigating factor at the capital felony penalty hearing. On the merits, the state argues that the defendant made a knowing, intelligent and voluntary waiver of his Miranda rights and that his confession was voluntary. The state further argues that admission of the defendant’s confession, even if improper, was harmless in light of the overwhelming evidence of the defendant’s guilt, independent of the confession.
A
We first address the state’s argument that the defendant’s use of his confession as a mitigating factor at the penalty hearing constituted a waiver of his right to contest the admissibility of his confession.
B
On the merits, the defendant first argues that the trial court improperly concluded that he knowingly, voluntarily and intelligently had waived his Miranda rights before confessing. The defendant asserts that, under federal law, police are required to clarify an equivocal request for counsel before continuing to interrogate a suspect. Alternatively, the defendant argues that article first, § 8, of the constitution of Connecticut
“Any inquiry into the admissibility of a confession obtained while a defendant is in custody must of course begin with Miranda v. Arizona, supra [384 U.S. 436], In that case, the United States Supreme Court held that the fifth and fourteenth amendments’ prohibition against compelled self-incrimination requires that a suspect in police custody be informed specifically of his or her right to remain silent and to have an attorney present before being questioned. [Id.], 444, 479. The court further held that ‘[i]f the individual indicates in
In Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), the United States Supreme Court held that, after an accused requests counsel, further conversations between the police and the accused do not violate Miranda if the accused initiates them. In Edwards, the defendant was advised of his Miranda rights and then submitted to questioning. Shortly thereafter, the defendant clearly stated that he wanted an attorney, and interrogation ceased. Id., 479. The next morning, two detectives came to the jail and asked to see the defendant. Id. The defendant told the guard that he did not want to talk to anyone, and the guard replied that the defendant “had” to talk. Id. The guard then took the defendant to see the detectives. Id. The detectives read the defendant his Miranda rights and the defendant agreed to talk with them, as long as his statement was not tape-recorded. Id. The United States Supreme Court reversed the Arizona Supreme Court’s conclusion that the defendant had waived his Miranda rights, stating that “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been
In Oregon v. Bradshaw, 462 U.S. 1039, 1041, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983), the defendant was advised of his Miranda rights and then told police his version of events relating to the crime. Later, the defendant requested an attorney and interrogation ceased. Id., 1041-42. The defendant subsequently asked a police officer, “Well, what is going to happen to me now?” Id. Before answering, the officer advised the defendant of his Miranda rights again and told him that he did not have to speak. Id., 1042. The defendant continued to converse with the officer, and agreed to submit to a polygraph examination, during which he made incriminating statements. Id. The United States Supreme Court reversed the Oregon Court of Appeals’ decision to suppress the defendant’s statements, holding that the defendant had initiated the conversation, under Edwards v. Arizona, supra, 451 U.S. 477, and that the defendant clearly had waived his Miranda rights. The court referred to the meaning of “initiation” as including inquiries that can “be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation.” Oregon v. Bradshaw, supra, 1045. The court held that the defendant’s “initiation” of further conversation does not end an analysis of waiver under Miranda. “But
Following Miranda and Edwards, we held that, as a matter of federal constitutional law, once a defendant makes an equivocal request for counsel, the scope of police interrogation is limited to questions designed to clarify that request. State v. Acquin, supra, 187 Conn. 647. Although we have held that clarifying questions are permitted, however, we have never held that such clarification is required, even when, following initiation by the defendant, the police continue to question the defendant and eventually obtain a confession. State v. Anonymous, 240 Conn. 708, 723 n.16, 694 A.2d 766 (1997). In Davis v. United States, 512 U.S. 452, 455, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994), however, the United States Supreme Court held that police are not required to clarify an equivocal request for an attorney before continuing an interrogation. In State v. Anonymous, supra, 720, this court followed Davis and held that the defendant’s question “Do I still have the right to an attorney?” was not an unequivocal request for an attorney and that police had no duty to clarify the ambiguous statement.
The defendant argues that his confession was admitted contrary to the requirements of Miranda v. Arizona, supra, 384 U.S. 436, and Edwards v. Arizona, supra, 451 U.S. 477. He argues that Edwards' initiation of contact doctrine should only apply where the defendant first waives his rights and later asks for counsel. The defendant argues that because he had not waived his Miranda rights prior to making his equivocal request for an attorney, initiation is irrelevant and Ruel had a
Nothing in Edwards ox Bradshaw indicates that their holdings apply only in postwaiver scenarios, and it does not appear that the defendant’s postwaiver scenario played any part in the United States Supreme Court’s reasoning. We can find no rational basis to distinguish between the case of an accused who first asserts his Miranda rights and one who changes his mind after waiving those rights. Miranda, warnings were put forth by the United States Supreme Court to establish a simple means to ensure that an accused’s fifth and sixth amendment rights are respected during custodial interrogation. “[0]ne of the principal advantages of Miranda is the ease and clarity of its application.” (Internal quotation marks omitted.) Arizona v. Roberson, 486 U.S. 675, 680, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988). The rule urged by the defendant would only further complicate that simple rule designed to advise the accused and guide law enforcement officers. Following the Edwards doctrine, we therefore conclude that the defendant’s initiation of further conversations with police may render his confession admissible, whether or not the defendant had waived his rights under Miranda prior to his statement requesting counsel.
Applying that standard to what transpired in this case, we find no violation of the letter or spirit of Miranda v. Arizona, supra, 384 U.S. 436, Edwards v. Arizona, supra, 451 U.S. 477, or our cases that apply that doctrine. The record amply supports the trial court’s conclusion that the defendant initiated further conversations with police. Ruel did not question the defendant at all following his statement that he wished to call his mother because she might have called an attorney. At 9:30 p.m., Ruel and McDermott executed the search warrant and then proceeded to leave the Agawam police station. Ruel was in the parking lot getting into his car when he was summoned back to the station and told that the defendant wanted to speak with the Connecticut police. Even before the defendant told Ruel that he wanted to tell him what happened in order to get it off his chest, Ruel fully advised the defendant of his Miranda rights, and, as we conclude in this opinion, the trial court properly found that the defendant had waived those rights. Although the defendant’s first question to Ruel, concerning what would happen to him next, was a request for information, it constituted an initiation under Edwards v. Arizona, supra, 477. In Oregon v. Bradshaw, supra, 462 U.S. 1045, the United States Supreme Court held that the defendant’s question “Well, what is going to happen to me now?” was an initiation:
The evidence also supports the trial court’s determination that the defendant waived his Miranda rights before giving his statement to Ruel. “The standard for waiver is that announced in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938): ‘A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege . . . [which] must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ Accord North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); State v. Wilson, 183 Conn. 280, 439 A.2d 330 (1981).” State v. Acquin, supra, 187 Conn. 666-67. “[T]he state must demonstrate: (1) that the defendant understood his rights, and (2) that the defendant’s course of conduct indicated that he did, in fact, waive those rights. ... In considering the validity of [a] waiver, we look, as did the trial court, to the totality of the circumstances of the claimed waiver.” (Citation omitted; internal quotation marks omitted.) State v. Santiago, 245 Conn. 301, 320, 715 A.2d 1 (1998). “Although the issue is . . . ultimately factual, our usual deference to factfinding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence. State v. Frazier, [185 Conn. 211, 219, 440 A.2d
Our review of the evidence supports the trial court’s conclusion that the defendant had waived his Miranda rights. The defendant was advised of his rights eight times throughout the day, and he always stated that he understood those rights. He had refused to talk to the police numerous times, indicating that he was aware of his right to remain silent. From his statements and his conduct, the trial court properly concluded that the defendant understood his rights under Miranda. Moreover, the defendant’s conduct during his confession to Ruel illustrated that he intended to waive those rights. The defendant asked to speak with the police and again was advised of his Miranda rights. The defendant told Ruel that he previously did not want to talk to the police, but that he had changed his mind and now wanted to tell the officers what had happened in order to get it “off his chest.” See State v. Cobb, 251 Conn. 285, 363, 743 A.2d 1 (1999) (defendant’s statement that he wanted to get matter “off his chest” indicated desire to relieve his conscience by confession and was evi
We further conclude that, even if the confession should not have been admitted at trial because of a violation of Miranda, any error was harmless. The improper admission of a confession is harmless error where it can be said beyond a reasonable doubt that the confession did not contribute to the conviction. State v. Hoeplinger, 206 Conn. 278, 294, 537 A.2d 1010 (1988). “This court has held in a number of cases that when there is independent ‘overwhelming evidence’ of guilt, a constitutional error would be rendered harmless beyond a reasonable doubt. See, e.g., State v. Whitaker, 202 Conn. 259, 272-73, 520 A.2d 1018 (1987); State v. Leecan, 198 Conn. 517, 533, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Bruno, [197 Conn. 326, 335-36, 497 A.2d 758 (1985) (Shea, J., concurring)]; State v. Gordon, 185 Conn. 402, 419, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982).” State v. Hoeplinger, supra, 295.
The defendant argues that, other than his statement that he forced the victim to perform oral sex on him, there was insufficient evidence of sexual assault. The defendant also argues that, without his confession, there was little evidence of robbery or burglary. Last, the defendant claims that his confession was integral to establishing the intent to kill. Thus, he maintains, any
There was overwhelming evidence of the defendant’s guilt, independent of his confession. The defendant was seen fleeing the crime scene and, when he was approached by Agawam police, he volunteered “I did it” numerous times. The defendant’s blood and footprints were found at the crime scene. The victim’s blood was discovered on the defendant’s clothes and on the knife that was discovered in his car. The convenience store cash register was missing $83. Thus, there was ample evidence, independent of the confession, to establish that the defendant had robbed the gas station and beat the victim.
Although the examination of the victim produced no semen indicating a sexual assault, there was overwhelming evidence at the crime scene to support the state’s theory that a sexual assault had occurred. The victim, employed as an attendant at a convenience store, was found naked in a back room of the store during store hours. A hair matching the defendant’s pubic hair was discovered near her body. This evidence overwhelmingly supports the conviction for sexual assault, independent of the defendant’s confession.
C
The defendant also argues that his confession was not knowing, intelligent and voluntary. “Irrespective of Miranda, and the fifth amendment itself . . . any use in a criminal trial of an involuntary confession is a denial of due process of law. . . . The voluntariness of a confession must be determined by the trial court as a preliminary question of fact. . . and we scrutinize the trial court’s finding closely to ensure that it comports with constitutional standards of due process. State v. Derrico, [supra, 181 Conn. 163]; State v. Toste, 198 Conn. 573, 584, 504 A.2d 1036 (1986). We have stated
The defendant argues that his confession was not voluntary because, at the time of the confession, he had been awake for twenty-seven hours. During the time that he made his statement, the defendant also had an untreated stab wound. According to the defendant, his will to remain silent broke under these conditions and the pressures of interrogation. Thus, the defendant claims that his confession was not a free and voluntary act.
Our scrupulous review of the record reveals that the defendant’s confession was voluntary. Ruel testified that the defendant did not appear to be sleepy while he made his statement. Prior to the confession, the defendant specifically denied that the stab wound was bothering him. The defendant was seated comfortably during the confession, and he was neither handcuffed nor restrained in any manner. At one point, the defendant asked for, and was provided with, a soda and a cigarette. There was no evidence of coercion or threats before or during the defendant’s confession. Under the
II
The defendant next claims that the trial court failed to obtain a waiver of his right to trial by jury with respect to the charges of felony murder arising out of sexual assault, burglary in the first degree, robbery in the first degree and sexual assault in the first degree. The following additional facts are necessary to resolve this issue.
On August 29, 1991, the defendant was charged in a short form information with capital felony for murder committed during the commission of a sexual assault in violation of § 53a-54b (7), murder in violation of § 53a-54a, and felony murder for causing a death during the course of a robbery and burglary in violation of § 53a-54c. On April 10, 1995, the defendant, in open court, waived his right to a jury trial on those charges. The trial court, Miaño, J., canvassed the defendant regarding his decision.
We recognize that the record is adequate for review of the defendant’s claim, and that the defendant’s right to a jury trial is clearly of constitutional magnitude. See U.S. Const., art. Ill; Conn. Const., art. I, §§ 8 and 19. The defendant’s claim fails Golding’s third prong, however, because we conclude that, on June 4, 1996, the defen
Ill
The defendant next claims that the trial court lacked jurisdiction over the charge of felony murder based on a predicate felony of sexual assault in the first degree because probable cause was never found as to that charge, as required by General Statutes § 54-46a.
On August 29, 1991, the trial court, Damiani, J., held a probable cause hearing to determine whether probable cause existed to prosecute the defendant for capital felony arising out of sexual assault, murder, and felony murder arising out of robbery and burglary. At the end of that hearing, the trial court concluded that probable cause existed for the prosecution of those crimes. On April 18, 1996, the state filed a substitute
On appeal, the defendant argues that the trial court did not have jurisdiction to try the defendant for felony murder arising out of sexual assault because there was never a finding of probable cause.
The defendant argues that the trial court did not find probable cause for this specification of felony murder, because felony murder occurs when the murder is committed “in the course of and in furtherance of’ a sexual assault, whereas capital felony is a murder committed “in the course of the commission of’ sexual assault. He concludes that, because felony murder must be committed “in furtherance of” a felony, the sexual assault felony murder is not a lesser included offense of the capital felony. We have held, however, that the terms “in the course of’ and “in furtherance of’ a felony may be combined to mean “in the natural progression of’ the felony. State v. Young, 191 Conn. 636, 640 n.5, 469
rv
The defendant also asserts that there was: (1) insufficient evidence to support the trial court’s finding of probable cause that the defendant committed burglary, as a predicate to the felony murder charge; and (2) insufficient evidence to support his convictions of burglary and felony murder predicated on burglary.
At the probable cause hearing, the state argued that there existed probable cause that the defendant committed burglary because the rear utility room in which the defendant had sexually assaulted and murdered the victim was a “building” that was not open to the public. As evidence, the state presented the floor plan of the gas station and photographs of its interior. These exhibits and the testimony at the hearing illustrated that the convenience store, which occupies a small portion of the gas station building, is the only area open to the public. From the store, a door leads to the former three automobile bay area of the garage, which is not open to the public. At one end of the three bay area is an office, and at the other end is a rear utility room. Neither room is open to the public, and at the door leading into the rear utility room, a sign reads, “Private, Employees Only.” The trial court, Damiani, J., found that probable cause existed to charge the defendant with felony murder arising out of burglary.
The defendant argues that there was insufficient evidence to support the trial court’s finding that probable cause existed. The defendant concedes that he failed to raise this claim at the probable cause hearing by objecting or moving for acquittal. He asserts that review under Golding is appropriate because: (1) the record is adequate for review; and (2) the requirement of probable cause is jurisdictional and therefore constitutional in nature. The state counters that the defendant waived this argument when he failed to object to the state’s argument or move for acquittal at the hearing. We agree with the state, and we decline to review this claim on appeal.
The defendant correctly asserts that a finding of probable cause is necessary to establish that a court has jurisdiction to try a suspect as to a certain charge. See
B
The defendant also claims that there was insufficient evidence at trial to support his conviction for burglary and felony murder based on burglary. At trial, the state presented as evidence the floor plan and photographs of the gas station, to show that the rear utility room was a separate “building” from the convenience store. At the close of the evidence, the state argued that, because the utility room was off-limits to the public, the defendant committed burglary when he entered that room with the intent to commit a crime. The three judge panel found the defendant guilty of burglary under two theories: (1) that the defendant, armed with a dangerous
The defendant argues that the trial court’s first finding, namely, that entering the gas station with the intent to commit a crime constituted burglary, is not supported by the evidence because the defendant did not “unlawfully enter” the gas station proper, which was open to the public. See General Statutes § 53a-100 (b) (“[a] person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so” [emphasis added]). The state concedes that the trial court’s conclusion in this respect was incorrect.
The defendant also claims that the trial court’s second finding, namely, that entering the real- utility room with the intent to commit a crime constituted burglary, is not supported by the evidence because the rear utility room was not a “building” under our statute. The state counters that the rear utility room was a “building” because it was a separate unit. We agree with the state.
General Statutes § 53a-100 (a) (1) defines “building” to include, “in addition to its ordinary meaning . . . any watercraft, aircraft, trailer, sleeping car, railroad car or other structure or vehicle or any building with a valid certificate of occupancy. Where a building consists of separate units, such as, but not limited to separate apartments, offices or rented rooms, any unit not
In State v. Thomas, 210 Conn. 199, 205-206, 554 A.2d 1048 (1989), however, we reversed the defendant’s burglary conviction, holding that the area behind the counter at a convenience store was not a “building.” We stated that “[t]he store counter, and the area it encompasses, clearly does not fall within the separate unit category of offices, rooms or like structures that may themselves be considered separate building[s] under § 53a-100 (a) (1) . . . .” (Internal quotation marks omitted.) Id., 206. Similarly, in State v. Russell, 218 Conn. 273, 280, 588 A.2d 1376 (1991), we reversed the defendant’s burglary conviction, holding that an area of a grocery store that carried merchandise with a high value and was locked and enclosed by an eight foot tall metal folding gate during the hours of 9 p.m. to 9 a.m. was not a building separate from the rest of the grocery store, which was open to the public twenty-four hours a day. We stated that “[u]nlike an office building, where numerous independent working enterprises coexist, the Pathmark grocery store houses a single working unit. The temporarily enclosed service area, analogous to a locked closet or a locked storage room, has no business purpose or occupancy distinct from that of the Pathmark store as a whole.” Id., 279.
In light of this precedent and the evidence presented at the trial, we conclude that the trial court reasonably could have determined that the rear utility room was a separate unit and, therefore, a “building” under our
The defendant claims that the language in State v. Russell, supra, 218 Conn. 279, mandates a different result. We disagree. In Russell, the service area was not a separate room at all; it was part of the store and was used for selling merchandise during a large part of the day. The area was not structurally distinct, like a separate room with walls and a door. To the daytime shopper, the area was not identifiable as a separate entity, but was merely part of the grocery store. The area was “temporarily enclosed” during the evening hours for safety purposes, but this did not change the fact that the area’s business purpose was to sell merchandise. In contrast, the rear utility room in this case was a separate room, with a separate business purpose, namely, storage and employee use, and merchandise never was displayed or sold from this area. This structurally distinct room, which could be accessed only
On these facts, we conclude that there was sufficient evidence to support the trial court’s conclusion that the defendant committed burglary in the first degree. Thus, we affirm the defendant’s convictions for burglary and felony murder predicated on burglary.
V
The defendant’s final claim is that the trial court should not have admitted his confession that he had sexually assaulted the victim before murdering her because the confession was inadmissible under the corpus delicti rule. We disagree.
At the beginning of the trial, the defendant filed a motion to exclude the portion of his statement in which he claimed to have sexually assaulted the victim. The defendant argued that there was no corroborating evidence that a sexual assault had occurred, and, therefore, the corpus delicti rule of State v. Tillman, 152 Conn. 15, 202 A.2d 494 (1964), barred the admission of his statement that he had forced the victim to perform oral sex on him. The three judge panel deferred decision on this motion until the completion of the evidence. At that time, the panel denied the motion, stating: “With respect to the defendant’s motion to exclude portions of [the] statement of the defendant from evidence, that motion being dated June 4, 1996, the court, pursuant to the holding in State v. Harris, 215 Conn. 189 [575
On appeal, the defendant argues that the trial court, in citing State v. Harris, supra, 215 Conn. 189, applied the wrong standard in admitting his statement. The defendant argues that State v. Tillman, supra, 152 Conn. 15, establishes the corpus delicti rule for crimes that result in a certain injury or loss, and that the rule of State v. Harris, supra, 215 Conn. 189, applies only to those crimes that prohibit conduct but do not result in an injury or loss. The defendant argues that, under the Tillman standard, the state did not proffer sufficient evidence, independent of the confession, that a sexual assault had occurred because there was no physical evidence of sexual trauma or sexual intercourse.
Before State v. Tillman, supra, 152 Conn. 15, the coipus delicti law of this state required that, in order to admit a confession into evidence, the state had to demonstrate through extrinsic evidence that the crime charged had been committed. See State v. Doucette, 147 Conn. 95, 99, 157 A.2d 487 (1959); State v. LaLouche, 116 Conn. 691, 694, 166 A. 252 (1933). State v. Tillman, supra, 20, changed this rule, holding that “the corpus delicti consists of the occurrence of the specific kind of loss or injury embraced by the crime charged. . . . [Thus] in a homicide case, the corpus delicti is the fact of the death, whether or not feloniously caused, of the person whom the accused is charged with having killed or murdered.” (Emphasis added.)
In State v. Harris, supra, 215 Conn. 193, we recognized that it may be impossible to apply the Tillman
We also conclude that the trial court properly determined that the corpus delicti had been established in this case. As we have determined previously, there was ample evidence, independent of the confession, that the defendant sexually assaulted the victim. Her badly
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of any of the following ... (7) murder committed in the course of the commission of sexual assault in the first degree . . . .”
General Statutes § 53a-54c provides in relevant part: “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 . . . 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 . . . .”
GeneralStatut.es § 53a-54a provides in relevant part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or a third person . . . .”
General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime ... or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or . . . (3) uses or threatens the use of a dangerous instrument . . . .”
General Statutes § 53a-101 (a) provides: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in the course of committing Ihe offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily harm on anyone.”
General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical ipjury to such person or a third person . . . .”
General Statutes (Rev. to 1991) § 53a-46a provides: “(a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.
“(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of or pleads guilty to a capital felony, the judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (g) and any aggravating factor set forth in subsection (h). Such hearing shall not be held if the state stipulates that none of the aggravating factors set forth in subsection (li) of this section exists or that one or more mitigating factors exist. Such hearing shall be conducted (1)
“(c) In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (h) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the factors set forth in subsection (h) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.
“(d) In determining whether a mitigating factor exists concerning the defendant’s character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury or, if there is no jury, the court shall first determine whether a particular factor concerning the defendant’s character, background or history, or the nature and circumstances of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case. Mitigating factors are such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.
“(e) The jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factor.
“(f) If the jury or, if there is no jury, the court finds that one or more of the factors set forth in subsection (h) exist and that no mitigating factor exists, the court shall sentence the defendant to death. If the jury or, if there is no jury, the court finds that none of the factors set forth in subsection (h) exists or that one or more mitigating factors exist, the court shall impose a sentence of life imprisonment without the possibility of release.
“(h) If no mitigating factor is present, the court shall impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict as provided in subsection (e) that (1) the defendant commuted the offense during the commission or attempted commission of, or during the imihediate flight from the commission or attempted commission of, a felony and he had previously been convicted of the same felony; or (2) the defendant committed the offense after having been convicted of two or more state offenses or two or more federal offenses or of one or more state offenses and one or more federal offenses for each of which a penalty of more than one year imprisonment may be imposed, which offenses were committed on different occasions and which involved the infliction of serious bodily injury upon another person; or (3) the defendant committed the offense and in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense; or (4) the defendant committed the offense in an especially heinous, cruel or depraved manner; or (5) the defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value; or (6) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.”
The panel concluded: “[T]he court finds that tire state has proven, beyond a reasonable doubt, that the murder of [the victim] was committed in an especially cruel manner, in that [the defendant] intentionally inflicted extreme pain and torture on [the victim] above and beyond that which would necessarily accompany the underlying killing.”
The panel concluded that the defendant had not proved the statutory mitigating factors that his mental capacity and his ability to conform his conduct to the requirements of the law were significantly impaired. See General Statutes (Rev. to 1991) § 53a-46a (g) (2). The panel concluded that
The panel did not impose any sentences for the counts of murder, felony murder or sexual assault in the first degree, as it concluded that they were lesser included offenses of the defendant’s capital felony conviction.
General Statutes § 51-199 (b) provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony . . . .”
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Koistinen testified that he did not speak with the defendant on the morning of July 14, 1991, because an Agawam police officer had told him that the defendant had requested an attorney. Koistinen could not identify the person at the Agawam police department who had given him this information, however, and no Agawam officer testified that he knew of the defendant’s alleged request for an attorney. On this record, the panel declined to find that the defendant had asked the Agawam police for counsel.
On cross-examination, Ruel admitted that he encouraged the defendant to tell his side of the story:
“[Barry A. Butler, Defense Counsel]: Would it be fair to say that you encouraged him to give a statement?
“A. I asked him for his side of the stoiy.
“Q. So I take it that is a yes, you encouraged his giving a statement, is that fair to say?
“A. Yes.”
The defendant’s written statement reads in relevant part: “While in the back room I told her to take her clothes off. Once she removed her clothing I wanted to have sex with her. I told her to get on her knees as I unzipped my pants. She began to suck my penis but then I pulled out when I started to go soft. I then walked behind her touching her shoulder with one hand and the knife with the other. She asked, ‘please, don’t hurt me.’ She started to get up real quick and reached for my wrist which started a struggle. The knife fell apart and I ended up with the handle and she reached for the blade which was on the floor. As we struggled for the blade I got cut in the stomach. I was then able to grab her and take the blade away from her. We were both on our knees as I stabbed her in the abdomen then again in the upper chest near her neck. I went crazy and kept slashing at her as she tried to grab the knife. She had screamed a couple of times during the struggle. I stood up as she lay on the floor breathing real rough. I had thrown the knife on the floor and grabbed the sink. When I turned around I grabbed a shovel (square with a long handle) that was near the sink. I swung the shovel over her head and struck her in the head with the flat side of the shovel several times. I kept swinging until I didn’t hear her breathing any more. I left the shovel there and grabbed my knife from the floor and also took the knife handle and put it in my back pocket. . . .”
The defendant made minor changes to the statement. For example, where the defendant described buying a pack of gum from the victim prior to the crime, he altered the statement to reflect the type of gum he had purchased (Juicy Fruit).
Previously, Ruel twice had asked the defendant if the stab wound was bothering him, once while executing the search warrant and once before obtaining the defendant’s confession. Both times, the defendant stated that the wound was not bothering him.
The state claims that the defendant waived his right to appeal this issue by successfully using his confession as a mitigating factor. The state’s posture is that the defendant would not have waived his right to appeal if the panel had not found the confession to be mitigating. Because “[a] waiver is ordinarily an intentional relinquishment or abandonment of a lenown right or privilege”; (emphasis added) Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); waiver implies some action by the defendant. We fail to see how the defendant’s waiver of his right to appeal could depend on the panel’s findings with respect to a mitigating factor.
Article first, § 8, of the constitution of Connecticut provides in relevant part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”
The purpose behind initiation is served irrespective of whether a defendant previously waived his Miranda, rights. “The requirement of an ‘initiation’ ensures that an accused has independently changed his or her mind about the need for a lawyer, and has not had his or her mind changed by the coercive pressures of continued direct questioning or its functional equivalent.” James v. Arizona, 469 U.S. 990, 997, 105 S. Ct. 398, 83 L. Ed. 2d 332 (1984) (Brennan, J., dissenting from denial of certification).
While the defendant urges us to interpret our state constitution more expansively than the federal precedent allows, we decline to do so in this case. See State v. Barrett, 205 Conn. 437, 447, 534 A.2d 219 (1987) (state constitutional right to counsel no broader than counterpart under federal constitution). The defendant has offered no persuasive rationale for an interpretation of our state constitution to support the proposition that, although police have no duty to clarify an equivocal request for counsel by an accused who already has waived his Miranda rights, they do have such a duty with respect to an accused who makes an equivocal request for counsel prior to waiving those rights.
The following colloquy occurred at trial:
“The Court: Are you ready with [the defendant]?
“Mr. [Fred] DeCaprio [Defense Counsel]: Yes.
“The Court: Okay, We should have Mr. [Herbert E.] Carlson [Jr., assistant state’s attorney] here. Is he available?
“Mr. Carlson: Yes.
“The Court: Oh. Bring out [the defendant], please. You’re [the defendant], sir?
“The Defendant: Yes, sir.
“The Court: Okay. What’s your date of birth, sir?
“The Defendant: 12/24/64.
“The Court: Okay. On the issue we talked about, whether or not there’s going to be a waiver of a jury trial for the guilt phase, that was something we discussed. Mr. DeCaprio, what’s your desire — your client’s desire?
“Mr. DeCaprio: At this point, Your Honor, we wish to withdraw the jury election.
“The Court: For the guilt phase?
“Mr. DeCaprio: Correct.
*301 “The Court: Okay. Sir, I am going to ask you some questions. Sir, as you know, you have a right to a,jury trial, both as to a guilt phase and if you’re found to be guilty, then as to a penalty phase. Do you understand that?
“The Defendant: Yes, sir.
“The Court: Okay. And your lawyer has just indicated on the record that you indicated your desire to give up your right to having a jury trial in the guilt phase. Do you understand that?
“The Defendant: Yes, sir.
“The Court: Okay. Now I’m just going to ask you a couple of questions and if there’s something you don’t understand, you feel free to interrupt me and consult with your lawyer. Now, you understand that a trial by jury is guarani eed to all citizens. That’s something that is very sacred in our system. You understand that?
“The Defendant: Yes, sir.
“The Court: Okay. And before I'm going to allow somebody to give up their right to have that, I want to make sure you’re doing it knowingly and intelligently and voluntarily. You understand?
“The Defendant: Yes, sir.
“The Court: Okay. Now, once you give up this right, sir, if I find that it’s a knowing, intelligent waiver and you give it up, you understand that if you change your mind down the road, if you think about it, have different thoughts and ask Mr. DeCaprio — let’s go see the judge; I change my mind— you understand in all likelihood, it’s too late. You’ve given it up. You’ve waived it for — if it’s waived today, it’s waived forever, on this case, on this phase. Do you understand that?
“The Defendant: Yes, sir.
“The Court: Okay. And when you have a jury trial for a crime such as yours, you have a right, by law, to have twelve citizens decide the facts of the case. That’s what a jury does. They decide the facts. Do you understand that?
“The Defendant: Yes, sir.
“The Court: And in a jury trial, the jury decides what the facts are. The judge that presides there is the one that tells the jury what the law is. So, there’s a separation of duties. The judge is the boss when it comes to the law in a jury trial and the jurors are the bosses when it comes to the facts in a jury trial. Do you follow that?
“The Defendant: Yes, sir.
“The Court: Okay. A lot of law students don’t even follow that. And once you give up your right to have a jury trial, instead of having twelve people decide what facts have been proven to them, you’re going to have just three people — three judges. Do you understand that?
“The Defendant: Yes. sir.
"The Court: Okay. And in a jury trial, the jury — any verdict the jury gives has to be unanimous regardless of what the verdict is. Whether it’s guilty or not guilty, it’s got to be twelve to nothing, has to render a verdict Do you understand that?
“The Defendant: Yes, sir.
“The Court: Okay, And if it’s anything less than unanimous, there won’t*302 be a verdict. It might be a mistrial. Do you understand that, sir?
“The Defendant: Yes, sir.
“The Court: Okay. And I assume — it’s unanimity also in a — oh, it’s not. Majority.
“Mr. DeCaprio: No.
“Mr. Carlson: Majority.
“The Court: Okay. In a court trial, if you give up your right to having twelve people decide the case — twelve jurors — and elect to have the judges do it, you will have three judges and you understand that they do not have to be unanimous. In other words, it could be a two-to-one. Either guilty or not guilty, whichever. You understand that? It’s by—
“The Defendant: Yes.
“The Court: —majority. Do you understand that?
“The Defendant: Mm-hmm.
“The Court: All right. Now, in ajury trial, the prosecutor — and let me just say this — I’m sure there may be valid reasons why one would choose to give up a right to have a jury trial. I’m sure you discussed this with your lawyer. But I just want to make you aware of this and I’m sure you are. That in ajury trial, in order to convict you where there’s ajury, the prosecutor has to [convince] all twelve beyond a reasonable doubt that you’re guilty of the crime charged. Do you understand that?
“The Defendant: Yes, sir.
“The Court: Okay. In a court trial, they’ve only got to convince two out of three of your guilt. Do you understand that?
“The Defendant: Yes, sir.
“The Court: Okay. Also, another thing that should be mentioned is, I indicated to you in ajury trial, there are separate functions. The jury decides the facts. The judge decides — tells them what law they have to apply to the facts as they find them to be. In a court trial when three judges decide, the judges decide the issues of facts and the law. So, let’s say — I don’t know anything about your case but let’s say there’s something that your lawyer thinks is prejudicial. The prosecutor, let’s say, wants to get it in. You don’t have a jury trial now, let’s assume. The judges are going to see — the three judges are going to see that which the prosecutor is claiming he wants to put into evidence and your lawyer’s objecting to it. The judges are going to know what it is. Even if they say, I’m sorry, Mr. Carlson, it doesn’t come into evidence — we keep it out — it’s inadmissible for whatever reason— hypothetically speaking — they still have both those functions. They’re supposed to keep that out of their mind and still go on with the case. Do you understand that?
“The Defendant: Yes, sir.
“The Court: In ajury trial, the jury is more — kept isolated. They wouldn’t know — if there’s something that’s prejudicial that the state wanted to introduce or there’s some objection to it — not necessarily prejudicial — and your*303 lawyer objected, that would be done outside the presence of the jury and if it wasn’t put into evidence, it was inadmissible, the jury would never know about it. Do you understand all that?
“The Defendant: Yes, sir.
“The Court: Okay. Now, have you discussed this issue — and I’m sure you have — about giving up your right to having a jury trial — have you discussed this with Attorney DeCaprio?
“The Defendant: Yes, sir.
“The Court: All right. And have you had enough time to discuss this important waiver with him?
“The Defendant: Yes, sir.
“The Court: Okay. And are you satisfied with the advice he’s given you?
“The Defendant: Yes, sir.
“The Court: All right. And how old are you, sir?
“The Defendant: Thirty.
“The Court: And how much formal schooling have you had?
“The Defendant Tenth grade.
“The Court: All right. Is there any question you haye of me about your giving up of this right?
“The Defendant: No, sir.
“The Court: Is there anything I’ve said that you do not understand?
“The Defendant: No, sir.
“The Coúrt: Okay. Any other questions you want to suggest, either party, to the court?
“Mr. Carlson: Mr. DeCaprio?
“The Court: Mr. DeCaprio?
“Mr. DeCaprio: I don’t know that it’s been made absolutely obvious, Your Honor. Perhaps, just the inquiry about voluntariness, threats or promises or anything like that.
“The Court: Okay. Anybody threaten you to induce you to waive this right?
“The Defendant: No.
“The Court: Has anybody promised you anything at all?
“The Defendant: No, sir.
“The Court: To get you to waive this right?
“The Defendant: No, sir.
“The Court: All right. Do you have any suggestions?
“Mr. Carlson: Yes, Your Honor. Certainly, it’s well said that Your Honor has inquired about the separate functions because there will be a motion to suppress in this case of the statement. So, that’s a reality. So, I’m glad that you mentioned that and I’m sure Mr. DeCaprio fully discussed that anyway. Also, one thing that I would suggest that Your Honor mentions is that in a three-judge panel, the judges are selected by the Chief Court Administrator. Whereas, in a jury case, the jurors axe selected by the parties and so, there’s a difference there.
“The Court: All right. Did you hear that? Did you follow that?
“The Defendant: Yes, sir. I understand that.
“The Court: In a jury case, you will have input with your lawyer and the*304 prosecutor, too, in picking the jurors, the judges of the facts. AH right? In a court trial, I’m going to make a request to the Chief Court Administrator that he picks the judges. So, you wiH have no input on that. Do you understand that, sir?
“The Defendant: Yes, sir.
“The Court: AH right. After hearing everything I’ve said, do you stfil want to give up your right to having a jury trial on the guHt phase of your case?
“The Defendant: Yes, sir.
“The Court: AH right. Counsel, do you have any reason why I shouldn’t find a knowing, inteUigent and voluntary waiver?
“Mr. DeCaprio: No, Your Honor.
“The Court: State?
“Mr. Carlson: The canvass is complete, as far as I’m concerned.
“The Court: A11 right. Thank you, sir. The court makes a finding that the gentleman made a — tendered a knowing, inteUigent and voluntary waiver of his right to have a trial by jury. I’m sure he’s satisfied of the import of it and I’m confident there’s been effective assistance] of counsel and I’m going to find a waiver to a jury trial on the first phase.”
The foUowing coUoquy occurred at that time:
“Judge [David M.] Barry: The record wHl reflect the presence of the defendant .... The defense has had an opportunity, I assume, to go over the information dated April 18, 1996 with [the defendant]?
“Mr. [Barry] Butler [Defense Counsel]: That’s correct, Your Honor.
“Judge Barry: Is he prepared to go to plea at this time on this information?
“Mr. Butler: Yes, Your Honor.
“Judge Barry: And you wish the reading of the information?
“Mr. Butler: We’H waive the fuU reading.
“Judge Barry: AH right. How do you plead?
“The Defendant: Not guüty, Your Honor.
“Mr. Butler: Plead not guüty to aH counts, Your Honor.
“Judge Barry: And how do you elect to be tried?
“Mr. Butler: Three judge panel I would assume, Your Honor, before the court.
*305 “Judge Barry: And my recollection of this is that his right to a — he previously waived his right to a jury trial before Judge Miaño, is that correct?
“Ms. [Karen] Goodrow [Defense Counsel]: As to the guilt phase only, Your Honor.
“Judge Barry: Yes, as to the guilt phase only. Okay. All right. Plea of not guilty may enter to each of these six counts in the information dated April 18, 1996, with the election as stated.”
General Statutes § 54-46a (a) provides in relevant part: “No person charged by the state . . . shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.”
The defendant has not appealed from the trial court’s denial of his motion with respect to the charge of sexual assault in the first degree.
Under General Statutes § 53a-101 (a), “[a] person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”
The defendant claims that Russell’s analogy of the service area to a “locked closet or a locked storage room” mandates that we reverse his burglary conviction. State v. Russell, supra, 218 Conn. 279. The language on which the defendant relies was dicta and is not binding on us now. Moreover, we do not find the claimed analogy relevant to this case because the evidence indicated that the rear utility room was not a “locked closet or locked storage room.”
At issue in Harris was the defendant’s confession that he was driving under the influence of alcohol when he crashed his car into a tree. Under the Tillman rule, the confession would have been inadmissible because there were no eyewitnesses who could testify that the defendant actually was driving the car under the influence of alcohol prior to the accident.
We note, however, that proving the trustworthiness of a defendant’s confession to a crime resulting in injury or loss often will require evidence of that injury or loss. For example, a confession to a homicide likely would not be trustworthy without evidence of the victim’s death.
Under the definition of “sexual intercourse” in General Statutes § 53a-65 (2), “[p]enetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. . .
