State v. LabargeState v. Labarge
BISHOP, J. The defendant, Michael Labarge, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of
The jury could have reasonably found the following facts. In the evening of August 29, 2009, the defendant came across the victim, Cornell Johnson, selling crack cocaine to the defendant‘s girlfriend, Sherri Clarke. The defendant then beat the victim with a baseball bat and stabbed him nineteen times with a knife, killing him. The defendant then cut off the victim‘s penis and left the murder scene with Clarke, taking the victim‘s penis, identification, money, and drugs with him. The couple went to their apartment in New Britain where the defendant flushed the victim‘s penis down the toilet. The couple also showered, changed clothing, and smoked crack.
In the early morning of August 30, 2009, the defendant and Clarke returned to the murder scene and set fire to the victim‘s car. Later that morning, the couple purchased two hand saws from The Home Dеpot and again returned to the murder scene. There, they used the hand saws to cut the victim‘s body into fifteen pieces and they then hid the victim‘s remains in the nearby woods.
The defendant subsequently was arrested in connection with the murder and dismemberment of the victim. The state charged the defendant in a two count, single long form information with murder in violation of
I
The defendant first claims that the court abused its discretion by denying his motion to sever the murder count from the tampering count. His claim is twofold. The defendant first relies on State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987),2 to argue that the denial of his motion to sever prejudiced his right to a fair trial because the jury, after hearing the facts underlying the tampering charge, which he argues were particularly brutal, violent, and shocking, could not fairly consider his guilt as to the murder charge. In
The following additional procedural facts are relevant to the resolution of the defendant‘s severance claims. On May 10, 2012, the state filed a substitute long form information charging the defendant in count one with murder in violation of
At the May 24, 2012 hearing on the severance motion, the defendant made a twofold claim. First, he argued that being required to defend the murder and tampering charges in the same trial would substantially prejudice him because the facts underlying the tampering charge were too brutal, violent, аnd shocking to allow the jury to consider fairly and independently his guilt as to the murder charge.3 Second, he claimed that he wished to testify in response to the murder charge but not in regard to the tampering charge, and that being required to defend both charges in the same trial prejudiced his right, alternately to present a defense to the murder charge while preserving his right to remain silent as to the tampering charge. As to this second aspect of his claim regarding severance, the defendant stated that he had “substantial evidence to offer to the fact finder related to the cause of death of [the victim]. If [his] testimony is believed his conduct could be justified.” In addition, he stated that “[i]n contrast . . . there [was] no advantage to him or incentive to him to testify on the tampering case.”
The state responded that severance was unwarranted where the charges arise from the same criminal act or transaction and the offenses are of the same character. Specifically, the state argued that the burden rested on the defendant to prove that he would be substantially prejudiced by failing to sever the charges for trial and that the defendant had not only failed to meet this burden, but had overlooked it entirely because the evidence regarding each charge would, in fact, be admissible regarding the other charge. Thus, the state claimed, because the evidence would, in any event, be cross admissible, the defendant could not prove any prejudice by the joinder of the charges. In making this assertion, the state noted that the defendant had acknowledged that the evidence underlying the two charges would be cross admissible if the charges were tried separately.4
With respect to the defendant‘s second claim, the court concluded that the defendant had not met his burden to prove that trying the cases together compromised his right to testify in the murder charge and to refrain from testifying in the tampering charge. The court explained that it could grant the defendant‘s motion on that ground only if the defendant made a “convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing it is essential that the defendant present enough information regarding the nature of the testimony which [he] is to give on one count, and his reasons for not wishing to testify on the other . . . .” The court then considered the defendant‘s proffer and concluded that the defendant had not met his burden. The court noted that the defendant merely had stated that he had “substantial information to present on [the murder] count including information relevant to the defense of justification; [but] other than this presentation, there is no further information concerning the testimony as to the murder count.” Additionally, the court stated that the “defendant ha[d] indicated that he wishes to exercise his fifth amendment right on the tampering with evidence count” and that “the defendant offer[ed] no information to support his position of having a, quote, unquote, strong need to refrain from testifying.” As a result, the court denied the defendant‘s motion for severance. During the court‘s final instructions to the jury, it informed the jury that the defendant had been charged in two counts and that it was the jury‘s duty to determine the guilt or nonguilt of the defendant as to each count separately.6
Before we address the defendant‘s claims, we set forth the standard under which we review a trial court‘s denial of a defendant‘s motion to sever for trial charges already joined in a single information. Practice Book § 41-18 provides: “If it appears that a defendant is prejudiced by а joinder of offenses, the judicial authority
A
We first address the defendant‘s contention that the trial court improperly denied his motion to sever on the grounds that the factual circumstances underlying the tampering charge were so brutal, violent, and shocking that they tended to arouse the passions of the jury and render it unable to consider fairly and independently the evidence against him in the murder charge. See State v. Boscarino, supra, 204 Conn. 723 (“acknowledg[ing] that evidence of a defendant‘s brutal оr shocking conduct in one case may compromise the jury‘s ability to consider fairly the charges against him in other unrelated, but jointly tried cases“). In response to this claim, the state asserts that the court correctly denied the defendant‘s motion to sever because the defendant did not make the threshold showing that the evidence with respect to both charges was not cross admissible. In short, the state argues that the court need only consider the Boscarino factors if the court first makes a determination that the evidence would not be cross admissible. Here, the state notes that the defendant has acknowledged cross admissibility and that admission, supported independently by facts in the record, should conclude this court‘s consideration of the propriety of the trial court‘s ruling on the motion to sever. We agree.
“In the trial court, when multiple charges have already been joined in a single information by the state pursuant to [General Statutes] § 54-57, and the defendant has filed a motion to sever the charges for trial pursuant to Practice Book § 41-18, the defendant bears the burden of proving that the offenses are not of the ‘same character‘;
Once the defendant makes a threshold showing that the evidence underlying the charges is not cross admissible, on appeal the defendant then must prove that the balance of the Boscarino factors weighs in favor of severance, meaning that the denial of severance resulted in substantial prejudice to the defendant that the court‘s curative instructions could not remedy. State v. LaFleur, 307 Conn. 115, 159, 51 A.3d 1048 (2012). In other words, the Boscarino factors are assessed only if the evidence underlying the charges is not cross admissible. Id. (“[w]here evidence is cross admissible, . . . our inquiry ends“); see also State v. Fana, supra, 109 Conn. App. 804 (“[a]t least with regard to the first Boscarino factor, a defendant will not be able to demonstrate prejudice by a consolidation of charges if the evidence presented would have been cross admissible at the two trials, were the charges tried separately“).7 If the defendant fails to make either showing, the motion to sever must be denied as the defendant has not carried his burden.
In the present case, the defendant did not challenge before the trial court the cross admissibility of the evidence if the charges were tried separately and makes no attempt to do so before this court. Instead, he relies solely on the second Boscarino factor to argue that the court abused its discretion by denying his motion to sever. This argument is not available to the defendant because of the cross admissibility of the evidence. State v. LaFleur, supra, 307 Conn. 155. Therefore, on review,
Our review of the record reveals that the defendant‘s acknowledgement at trial that the evidence would be cross admissible was well supported. Accordingly, even without the defendant‘s concession of cross admissibility, it is likely that the court, on the basis of a proffer from the state, reasonably would have been entitled to come to the same conclusion. As the court explained in its oral ruling denying the defendant‘s motion for severance, “the evidence appears to be cross admissible with respect to each count. Evidence that a murder was committed appears to be admissible in the count . . . alleging dismemberment and evidence that the body was dismembered appears to be admissible in the count alleging murder, particularly the expected testimony of the medical examiner.” See State v. Moye, 119 Conn. App. 143, 150, 986 A.2d 1134 (“A trial court may admit [e]vidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as . . . concealment of evidence . . . [which] is ordinarily the basis for a charge on the inference of consciousness of guilt. . . . In seeking to introduce evidence of a defendant‘s consciousness of guilt, [i]t is relevant to show the conduct of an accused . . . which may be inferred to have been influenced by the criminal act.” [Internal quotation marks omitted.]), cert. denied, 297 Conn. 907, 995 A.2d 638 (2010). Therefore, because the defendant has failed to show that the court‘s denial of his motion to sever caused him prejudice and that the cases were not cross admissible, this aspect of his severance claim fails.
B
The defendant next claims that the court‘s denial of his motion to sever violated his fifth amendment right to remain silent with respect to the tampering charge and to testify with respect to the murder charge. In response, the state argues that the court did not abuse its discretion in denying the defendant‘s motion to sever on this basis because the defendant did not sustain his burden of demonstrating to the trial court that a joint trial on both charges would impair his fifth amendment right. We agree with the state.
In State v. Schroff, supra, 198 Conn. 409, our Supreme Court decided that “no need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the оther.” (Internal quotation marks omitted.) “In making such a showing, it is essential that the defendant present enough information—regarding the nature of the testimony he wishes to give on [some counts] and his reasons for not wishing to testify on [others]—to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of
From the record, we conclude that the defendant failed to sustain his burden of showing that the denial of his motion to sever resulted in substantial prejudice to his fifth amendment rights. Specifically, the defendant provided the court with no information, let alonе enough information, for a convincing showing that he had a genuine need to testify on the murder charge and a strong need to refrain from testifying on the tampering charge. The only information that the court had before it from which to assess the nature and substance of the defendant‘s proposed testimony was defense counsel‘s statement that “[the defendant] intends to testify as to the murder charge. He will testify, he will offer substantial evidence before the fact finder.” In its oral ruling denying the defendant‘s motion to sever, the court noted that “other than this presentation, [the defendant offered] no further information concerning [his proposed] testimony as to the murder count.” The defendant‘s showing regarding his reason to refrain from testifying on the tampering сount was likewise nondescript. He merely informed the court, in conclusory fashion, that he did not plan to testify as to the tampering charge if the charges were tried separately. At no point did the defendant present any information as to why he did not plan to testify regarding the tampering charge and never identified a “strong need to refrain from testifyng on the [tampering charge].” (Internal quotation marks omitted.) State v. Schroff, supra, 198 Conn. 409.
The defendant‘s general assertions, unsupported by any specific proffer, were insufficient to meet his heavy burden of demonstrating that the denial of his motion to sever would substantially prejudice his right to remain silent as to one charge and to testify as to the other. See id. Therefore, “[t]he defendant‘s complete failure to substantiate his claim of prejudice falls far short of the ‘convincing showing’ required by our cases.” Id., 410. In sum, the court‘s denial of the defendant‘s motion to sever was not an abuse of discretion.
II
The defendant next claims that the trial court improperly denied his motion to suppress certain incriminating statements that he had made to correction officers at the MacDougal-Walker Correctional Institution (Walker facility), which he contends were the product of custodial interrogation and made without the benefit of having been accorded his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The defendant also claims that his
The following additional procedural history and facts, as found by the trial court, are relevant to our disposition of the defendant‘s suppression claims. The defendant was charged and arraigned on September 9, 2009, in the Bristol Superior Court, at which time a public defender was appointed for his representation and a surety bond was set at five million dollars. On September 17, 2009, the case was transferred to the New Britain judicial district and a New Britain public defender entеred an appearance on behalf of the defendant in lieu of his prior counsel. On May 16, 2012, the defendant filed a motion to suppress certain statements made to correction officers at the Walker facility. The court held an evidentiary hearing on the defendant‘s motion on May 24 and 25, 2012. On June 20, 2012, the parties filed memoranda of law and the court heard argument regarding the motion. On August 28, 2012, the court filed a memorandum of decision denying the defendant‘s motion to suppress.
In its memorandum of decision, the court set forth the following as part of its factual findings: “On September 25, 2009, the defendant was returning by marshal transportation to the [Walker facility] after a G.A. 7 Meriden Superior Court appearance. Upon his return, the defendant, as with all рrisoners returning from court appearances, was brought to the admitting and processing unit. Correctional Officer Kevin Cashman testified that when the defendant returned from his court appearance, he and other inmates entered the admitting and processing unit ‘gang’ chained. These inmates, including the defendant, were placed in a ‘gang cell’ for identification purposes. At this location, the restraints were removed from the defendant, and he and other inmates proceeded to a smaller, separate cell area where a strip search was conducted. The defendant was not shackled, but under supervision. Following that strip search, the inmates received a meal and were directed to another holding cell, which was specific to the inmate‘s particular correctional center or housing area. This ‘destination’ holding cell is approximately twenty feet by fifty feet and is capable of holding up to forty-eight inmates. [Cashman] testified that on September 25, 2009, the defendant, upon his return from his court appearance, was processed at the Walker [facility] admitting and processing unit in this fashion.
“When the defendant was in the destination holding cell, [Duquette] and the defendant had a conversation. Duquette testified that during this conversation, the defendant made incriminating statements to him about a criminal act.
“The defendant‘s ‘destination’ holding cell was approximately ten feet from the office of [Cashman]. While in his office, [Cashman] heard a ‘part of the conversation’ between [Duquette] and the defendant. [Cashman] knew the defendant as an inmate, and was aware that the defendant was familiar with Cashman as a correctional officer. [Cashman] testified that as part of that conversation, he heard the defendant use the ‘N’ word.8 This immediately caused safety concerns for Cashman, causing him to instruct [Duquette] to remove the defendant from the holding area and bring him to [Cashman‘s] office, while the defendant was waiting to be transported to his housing unit in the Walker facility.
“While in Cashman‘s office, the defendant, unshackled, continued his conversation with [Duquette], making what are described as incriminating statements. The testimony indicated that [Cashman] made no inquiry of the defendant while he was in his office. The defendant remained in [Cashman‘s] office for approximately five minutes and then was transported by [Cashman] to the defendant‘s housing unit. There was no evidence presented that [Cashman] or [Duquette] provided the defendant with ’Miranda warnings.’ ” (Footnote in original.)
Before addressing the defendant‘s claims, we set forth the applicablе standard of review and controlling legal principles that guide our assessment. “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda v. Arizona, supra, 384 U.S. 444. These procedural safeguards are generally referred to as Miranda warnings. See id., 444–45. A defendant is entitled to Miranda warnings only if he can prove that he was subject to custodial interrogation; State v. Pinder, 250 Conn. 385, 409, 736 A.2d 857 (1999); which requires the defendant to prove that two threshold conditions are satisfied: “(1) the defendant must
A person is in custody for Miranda purposes “only if, in view of all the surrounding circumstances, a reasonable person would have believed that he was not free to leave.” (Internal quotation marks omitted.) State v. Kirby, 280 Conn. 361, 393, 908 A.2d 506 (2006). “Two discrete inquiries are essential to determine custody: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” (Internal quotation marks omitted.) State v. Turner, 267 Conn. 414, 434–35, 838 A.2d 947, cert. denied, 543 U.S. 809, 125 S. Ct. 36, 160 L. Ed. 2d 12 (2004).
A defendant in custody is subject to interrogation not only in the face of express questioning by police, but also when subjected to “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). “Whether a defendant in custody is subject to interrogation necessarily involves determining first, the factual circumstances of the police conduct in question, and second, whether such conduct is normally attendant to arrest and custody or whether the police should know that such conduct is reasonably likely to elicit an incriminating response. . . . A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police оfficers that they should have known were reasonably likely to elicit an incriminating response.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Canady, 297 Conn. 322, 335–36, 998 A.2d 1135 (2010).
“As a general matter, the standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . . . . [W]hen [however] a question of fact is essential to the outcome of a particular legal determination that implicates a defendant‘s constitutional rights, and the credibility of witnesses is not the primary issue, our customary deference to the trial court‘s factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court‘s factual findings arе supported by substantial evidence. . . . [When] the legal conclusions of the court are challenged, [our
In the present case, the defendant does not challenge the court‘s factual findings. Instead, the defendant challenges only the court‘s legal conclusions on the basis of those findings. We conclude that the record supports the conclusion that defendant was not interrogated as that term is understood in Miranda, and, therefore, we need not reach the question of whether he was held in custody. In reaching this conclusion, we find State v. Vitale, 197 Conn. 396, 497 A.2d 956 (1985), to be instructive. In Vitale, an incarсerated defendant made unprompted inculpatory statements to a uniformed correction officer who, having attended high school with that defendant, had started a conversation with him about ” ‘high school and playing football and things.’ ” Id., 410. Despite the fact that the conversation in Vitale had turned to “why that defendant had been arrested“; id.; before the defendant made the inculpatory statements, our Supreme Court concluded that that defendant‘s statements were not made in response to interrogation. Id., 412. Rather, the court determined that the defendant‘s inculpatory statements “were volunteered by the defendant during a general conversation between him and [the correction officer], wherein the defendant spoke freely about the offenses with which he was charged.” Id.
The facts we confront in the present casе are akin to those found in Vitale. Here, the record demonstrates that the defendant freely volunteered the statements during a neutral conversation with Duquette, who initiated the conversation in order to relieve the tension of a stressful and invasive intake process. Duquette testified that he recognized the defendant from growing up in the same town, called the defendant by his street name, asked the defendant whether he was in court for what had occurred in New Britain, and told the defendant that he recognized his girlfriend from growing up in New Britain for the purpose of making an uncomfortable situation more cordial. In our view, those questions fairly can be construed as no more than small talk initiated by a correction officer for the purposе of defusing a stressful and invasive intake process and not for the purpose of soliciting incriminating information from the defendant. See id., 412; see also Rhode Island v. Innis, supra, 446 U.S. 300 (” ‘[i]nterrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself“). The record reveals that, indeed, the only question that plausibly could have been seen as focused on the defendant‘s potential criminal liability concerned whether the defendant had been in court in connection with the New Britain murder. The
In addition, the record does not disclose that Cashman, through direct questioning or other conduct, subjected the defendant to any questioning that elicited an incriminating response.9 As with Duquette, Cashman did not elicit from the defendant any of his unforeseeably volunteered statements regarding his culpability. State v. Canady, supra, 297 Conn. 335–36 (law enforcement cannot be held accountable for unforeseeable results of their questions or conduct). On the basis of the court‘s findings, which are supported by the record, we conclude that the trial court properly determined that the defendant had not been subject to interrogation for the purposes of Miranda when he made the statements at the Walker facility. Having concluded that the defendant was not subject to an interrogation as contemplated in Miranda, we need not consider whether, in addition, he was in custody for Miranda purposes at the time of the conversations in question.
Similarly, our conclusion that the defendant was not subject to interrogation belies his sixth amendment claim that statements that were “deliberately elicited from him after he had been indicted and in the absence of his counsel“; Massiah v. United States, supra, 377 U.S. 206; were used against him at trial. “Because the right to counsel applies only when the government deliberately elicits incriminating information, the defendant‘s sixth amendment right to counsel was not violated. United States v. Henry, 447 U.S. 264, 270, 100 S. Ct. 2183, 2186, 65 L. Ed. 2d 115 (1980); Massiah v. United States, [supra, 206].” State v. Vitale, supra, 197 Conn. 412. Accordingly, we conclude that the court properly denied the defendant‘s motion to suppress the statements.
The judgment is affirmed.
In this opinion the other judges concurred.