237 Conn. 694 | Conn. | 1996
Lead Opinion
The defendant, Richard A. Lapointe, was convicted by a jury of capital felony in violation of General Statutes § 53a-54b (7), arson murder in violation of General Statutes § 53a-54d, felony murder in violation of General Statutes § 53a-54c, murder in violation of General Statutes § 53a-54a, arson in the first degree in violation of General Statutes § 53a-lll, assault in the first degree in violation of General Statutes § 53a-59 (a) (1), sexual assault in the first degree in violation of General Statutes § 53a-70 (a), sexual assault in the third degree in violation of General Statutes § 53a-72a (1) (A) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A).
The defendant claims that the trial court improperly: (1) failed to suppress various oral and written statements he had made to officers of the Manchester police department, both because the statements were obtained without a knowing and voluntary waiver of certain of his constitutional rights and also because the statements were involuntary; (2) concluded that article first, § 8, of the Connecticut constitution does not require the police to record electronically all confessions of detained suspects when such recording is feasible; and (3) found that a state’s witness was unavailable to testify at trial and, therefore, improperly admitted an audio recording of the witness’ prior testimony. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On March 8,1987, the defendant called the emergency telephone number, 911, to report a fire at the Manchester apartment of the victim, Bernice Martin, his wife’s eighfy-eight year old grandmother. Manchester firefighters entered the smoke-filled apartment and found the victim lying on the floor approximately six to eight feet from a burning couch. The victim was only partially clad and a piece of fabric was tied tightly around her neck. Other fabric was tied loosely about her wrists. The firefighters noted a bloodstain on the bed in the apartment. Paramedics who arrived at the scene attempted unsuccessfully to resuscitate the victim and subsequently transported her to a hospital
A knife blade and a melted brown plastic knife handle were found in the victim’s apartment. The victim’s undeiwear was found on the floor of the apartment to the right of the bed. No latent fingerprints were discovered at the scene due to fire and water damage. It was determined that the fire in the victim’s apartment had three points of origin — the couch, near which the victim had been found, and two towels that were hanging in the kitchen. There was no evidence that an accelerant had been used to hasten the fire’s progress. The couch, which had extensive fire damage, was tested and found to bum at a very slow rate and to emit copious amounts of smoke.
At approximately midnight on the night that the victim’s body was found, Detective Edward Wilson of the Manchester police department interviewed the defendant. The defendant told Wilson that on March 8, from approximately 2 to 4 p.m., he had visited the victim at her apartment with his wife, Karen, and his son, Sean.
The defendant said that he then had gone to the apartment of Jeannette King, a neighbor of the victim, to telephone his wife and Howard. Despite having smelled smoke and having felt the heat of the door to the victim’s apartment, the defendant made no effort to secure emergency assistance at that time. Rather, he walked to King’s apartment and knocked on the door furthest from the victim’s apartment.
On March 9, 1987, an autopsy of the victim’s body by the medical examiner revealed that the victim had suffered a three inch deep stab wound to her abdomen and ten less severe stab wounds to her back. The medical examiner also determined that the victim had been strangled and that she had sustained premortem first and second degree bums. The cause of death was determined to be a combination of strangulation and smoke inhalation.
The jury further could have found that a stain on the victim’s bedspread was human semen from a person who was a secretor with Type A blood. The defendant has Type A blood and is a secretor. The semen stain also was found to contain no sperm, which is consistent with the semen of a person who has had a vasectomy. The defendant had a vasectomy after the birth of his son in 1979. On March 9, before any information regarding a possible sexual assault became known to the police or the public, the defendant stated in a conversation with Eileen Giacalone, a friend of the Lapointe family, that “it was a shame they killed an old lady, but they didn’t have to rape her, too.” When asked in a June, 1989 interview by Detective Paul Lombardo how he had
On March 9, officer Wayne Rautenberg interviewed the defendant at the Manchester police station. During the interview, the defendant exhibited considerable curiosity concerning the results of the autopsy and asked if there had been causes of death other than smoke inhalation.
The police investigation of the victim’s death remained open and unresolved until March, 1989, when, due to internal changes at the Manchester police department, Lombardo was assigned to the case. Because the investigation had been dormant for some time, Lombardo decided to reinterview all those persons who had been interviewed previously. For that purpose, Lom
Inconsistencies in the defendant’s version of his activities on the evening of March 8, 1987, and the defendant’s prescience that the victim had been sexually assaulted led Lombardo to become increasingly suspicious. Therefore, Lombardo again requested that the defendant come to the police station on July 4, 1989.
I
The defendant moved in the trial court to suppress several incriminating oral and written statements that he had given to Manchester police officers on July 4 and 5, 1989, claiming that his federal constitutional rights had been violated.
Thereafter, the trial court, in a lengthy memorandum of decision, rejected the defendant’s claims that there had not been a valid waiver of his Miranda rights and that his statements had not been voluntary. The trial court resolved the Miranda issue by concluding that Miranda warnings were unnecessary because “the defendant was not in custody when he gave his confessions to members of the Manchester police department.” See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977) (defendant must be in custody before Miranda applies); State v. Northrop, 213 Conn. 405, 413-16, 568 A.2d 439 (1990) (same). The trial court also determined that, although the defendant was not in custody and, consequently, the police had not been obligated to advise him of his Miranda rights, the state nevertheless had proven by a preponderance of the evidence that the defendant had been advised of his rights and had made a knowing and voluntary waiver of those rights before giving any statements to the police. In deciding the defendant’s voluntariness claim, the trial court concluded that “all confessions made by the defendant to members of the Manchester police department on July 4, 1989, were voluntarily made and were not the product of police coercion.” We agree with the trial court that the defendant was not in custody at the time he made the statements at issue and that the statements he made were voluntary.
At the suppression hearing and at trial, the state presented the following evidence
Ludlow, who was the desk sergeant that day, read the defendant his Miranda rights, stopping after each right and asking the defendant to confirm orally that he understood what had just been read to him. After receiving the defendant’s oral assurance that he understood his rights, Ludlow asked the defendant to read over each of the rights himself and to place his initials beside each enumerated right on a preprinted form in order to acknowledge once more that he understood them. The defendant did so. The defendant then indi
Lombardo then walked with the defendant through the office of the detective division of the police department and proceeded upstairs with him to the youth services office where Lombardo intended to conduct the interview with the defendant.
Upon the defendant’s return from the bathroom, Lombardo continued to question him in the hope of obtaining specifics about the circumstances of the victim’s death. The defendant instead retracted his earlier statement and said that he had only given it so that he could use the bathroom. Lombardo admonished the defendant, telling him that he knew that he was free to use the bathroom at any time. Thereafter, the defendant put his head down and became quiet.
When the defendant was confronted with the fact that an eyewitness had reported seeing him near the victim’s apartment at approximately 7 p.m. on March 8, 1987, the defendant recanted his earlier statement that he had been at home the entire evening until his wife’s aunt had telephoned at approximately 8 p.m.
After the defendant had signed the second statement, Lombardo sought to elicit further details from the defendant concerning the victim’s death. In response, the defendant turned away from Lombardo, put his head in his hands and stated, “If I tell you everything, then the whole town’s going to find out and know that I am a sex fiend.” Lombardo then told the defendant that it might be possible to have the case sealed so that the press would not have easy access to it. The defendant was unpersuaded and informed Lombardo that once the case went to trial, it would become public knowledge and everyone would find out about it. As the questioning proceeded, the defendant eventually became teary and explained to Lombardo that if his wife found out what he had done to her grandmother, she would leave him. He further explained that his wife and son were his only real family and that if they left him, he would consider suicide.
After the defendant had composed himself, he asked Lombardo if he could use a telephone to call his wife or an attorney. Lombardo moved the telephone on the desk toward the defendant and told him that he was free to use it. When the defendant did not pick up the
While the defendant was in the bathroom, Morrissey, who had interviewed the defendant’s wife earlier that day, approached Lombardo at the entrance to the youth services office, where they had a brief conversation about Morrissey’s interview with the defendant’s wife. When the defendant returned from the bathroom, Lombardo asked him if he would be willing to talk to Morrissey. Lombardo reiterated to the defendant that he was free to leave and that he did not have to talk to Morrissey if he did not wish to do so. The defendant agreed to stay and speak with Morrissey.
After Lombardo left the youth services office to return to his desk in the detective division office at approximately 8 p.m., Morrissey interviewed the defendant in the youth services office. Morrissey began by telling the defendant what had transpired during his interview of the defendant’s wife, including the fact that she had expressed her support for the defendant and that she hoped that the defendant would tell the truth. The defendant told Morrissey that his wife knew what he had done and he expressed concern about the embarrassment that the incident would cause his family. Morrissey also told the defendant that his wife had said that, contrary to the defendant’s earlier statements to the police, the defendant had left their home after the family returned from their afternoon visit to the victim’s apartment and before Howard had telephoned. The
After the trips to the bathroom and the vending machines, the defendant gave Morrissey a more detailed statement than he had given Lombardo concerning the events at the victim’s apartment on the evening of March 8, 1987. The defendant stated that he and the victim had had coffee and tea, respectively, on the couch in the living room. After having sat on the couch for a short time, he had used the bathroom that was located off of the victim’s bedroom. When he came out of the bathroom, the victim was standing in front of her dresser in the bedroom blushing her hair and, at that point, he “thought the time was right.” He stated that the victim was dressed in a pink housecoat and was wearing no bra and that he had seen her breasts when she had bent over. He stated that he then had grabbed the victim and that she had pushed him away. In response, he had thrown her on the bed and had pulled off her underwear. The defendant said that he then
Morrissey then asked the defendant if the victim had screamed. The defendant said that she had not. In order to test the defendant, Morrissey told him that a neighbor had reported having heard screams, although that in fact was not the case. The defendant adhered to his story, however, and adamantly denied that the victim had screamed.
The defendant also told Morrissey that originally he had intended to leave the apartment after he had ejaculated. He had changed his mind, however, when the victim informed him that she intended to tell his wife what had occurred. The defendant stated that he then went to the kitchen, where he obtained a steak knife with a brown plastic handle. When he returned to the victim, he stabbed and strangled her on the couch. The defendant also told Morrissey that immediately thereafter he had started fires at two separate places on the couch and then had left and gone home.
In response to a request, the defendant agreed to give Morrissey a written statement memorializing what he had just told him. As with the two written statements that he previously had given to Lombardo, the defendant dictated the statement and Morrissey transcribed it. Morrissey repeated each statement back to the defendant as he wrote it down. On two occasions, Morrissey, in order to assess the defendant’s comprehension of the statement, wrote down and read back a sentence to the defendant stating something different from that which the defendant had just related. On both occasions, the defendant immediately corrected Morrissey, Morrissey made the correction, and the defendant initialed the change. After he had finished transcribing the statement, Morrissey read the entire
Morrissey told Brooks, his supervisor, that he had concluded his interview with the defendant. Brooks then went to the youth services office where he greeted the defendant, whom he had known personally for some
In response to Brooks’ inquiries concerning the reasons for the recantations of his earlier admissions, the defendant stated that he had repeatedly recanted because he did not want his wife and child to know what he had done. When Brooks tried to elicit either a firm admission or a firm denial from the defendant, the defendant told Brooks that he could neither confirm nor deny that he had killed the victim. In response to a further inquiry from Brooks, the defendant also admitted that he had had a vasectomy after the birth of his son. Brooks asked this question because he was aware that the seminal stain on the victim’s bedspread contained no sperm, a characteristic of a person who has had a vasectomy. At that point, Brooks was notified that the defendant’s brother-in-law, Kenneth Martin, and his stepfather-in-law, Ted Dana, were in the lobby waiting to see the defendant. Brooks concluded the interview and brought the defendant to the lobby, where
On the ride home, the defendant told Martin and Dana that the police thought that he had killed the victim but that he had denied it. When the defendant arrived home, his mother-in-law, Margaret Dana, asked him if he was hungiy or thirsty, and he replied that he was not because he had had something to eat at the police station. His mother-in law also asked him if he had known that he had been free to leave the police station if he so desired. The defendant told his mother-in-law that he had known he could leave but that he did not because he was “just there talking.”
At the suppression hearing and at trial, the defendant testified to a somewhat different version of the events surrounding his various admissions and statements to the police. The defendant agreed that he had been picked up at his house in an unmarked police car as he had requested. He also agreed that he had been read his Miranda rights by Ludlow when he first arrived at the police station, that he had “glanced”
The defendant further testified that he had not seen any of the various props described in footnote 16, in either the detective division office or the youth services office. The defendant also stated that he initially had denied killing the victim and that at some point he had requested an attorney,
The defendant also recalled having signed only one statement for Lombardo, but when asked if the signatures on each of the two statements taken by Lombardo were his, he stated that they were. The defendant stated that the contents of the first statement may have come from him but that several of the details in the second statement had been provided by Lombardo and that he had merely agreed. At the suppression hearing, the defendant admitted, however, that he may have made the statement, “If the evidence shows that I was there, and that I killed her, then I killed her, but I don’t remember being there.” The defendant also admitted that he may have made the statement, “I made a pass at Bernice because she was a nice person, and I thought that I could get somewhere with her. She was like a grandmother to me, that I never had.”
The defendant also testified that at some point during his stay at the police station, he had agreed to talk to Morrissey and to answer Morrissey’s questions. The defendant admitted that he had been left alone for a period of time during the course of his interview with Morrissey, but stated that he had not left the station because he did not believe that Morrissey had com
At the suppression hearing, the defendant presented, as expert witnesses, Anne Phillips, a clinical psychologist, and Kenneth Selig, a psychiatrist, to testify con
After testing the defendant, Phillips consulted Geraldine Cassens, the head of the neuropsychology program at the Institute of Living in Hartford, because some of the defendant’s test responses had indicated to Phillips that he might have some form of “organic impairment.”
Selig testified concerning the defendant’s mental makeup after having interviewed the defendant and his mother and having reviewed a number of documents associated with the case. These included a memorandum written by defense counsel purporting to outline “inconsistencies between [the defendant’s] statements to the police and what could be construed as the known facts,” transcripts of interviews between defense investigators and certain of the defendant’s family members, and the defendant’s MMPI-II results. Selig diagnosed the defendant as having a dependent personality disorder. On direct examination, Selig described the manifestations of this disorder as the defendant’s “tendency to defer to other people, to accept other people making important decisions for him, to defer to other people’s points of view, rather than get into arguments with them, out of concern that he’ll be rejected or harmed in some way — harmed emotionally; his sensitivity to criticism, his tendency to be compliant and submissive. ” Selig diagnosed the defendant’s disorder and his tendency to be compliant based in significant part/upon the defendant’s own assertions that he had had a vasectomy at his wife’s request even though he felt that it was a sin to have such an operation, that his wife controlled where they lived and when they would have sexual relations, and that he was relieved that his wife made
Selig also testified that it was his opinion that an experienced investigator could extract from the defendant a confession to a heinous crime that he did not commit, just as the defendant’s wife, according to the information given to Selig, had forced him to have a vasectomy. Selig was able to provide a somewhat more detailed description of Dandy Walker Syndrome
In order to counter the defendant’s experts’ opinions concerning the defendant’s possible inability to assert himself and their testimony that the defendant might be meek and highly suggestible, the state presented several witnesses, both at the suppression hearing and during rebuttal at trial, who testified that, in view of their personal experiences with the defendant, they found him to be extremely independent, assertive, argumentative and even hot tempered. The defendant’s wife testified that the defendant was more than capable of making up his own mind and that he made many of the major family decisions, including the decision to have a vasectomy. Mary McDonald, a former neighbor in the defendant’s condominium complex, testified that the defendant confronted all visitors whom he did not know and inquired as to their business on the premises. Another former neighbor, Jean Strimike, testified that she knew the defendant to become “angry . . . threatening . . . [and] violent” when others had failed to do something that he had requested. For instance, the defendant, an ardent and aggressive enforcer of his condominium association’s bylaws, once informed Strimike that she had violated one of the bylaws by planting flowers in front of her condominium. According to Strimike, when she failed to remove the
A
The defendant’s first claim of law is that the trial court improperly determined that he was not in custody during his questioning at the Manchester police station and therefore improperly held that he was not entitled to Miranda warnings. We disagree. “Miranda and the due process clause affect the admissibility of a defendant’s statements differently. Due process requires only that a defendant’s statements be uncoerced; the Miranda rules condition the admissibility of an uncounselled statement taken during police interrogation on the state’s demonstrating ‘that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.’ Miranda [v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).” Miller v. Dugger, 838 F.2d 1530, 1537 (11th Cir. 1988). An officer’s obligation to administer Miranda warnings attaches “ ‘only where there has been such a restriction on a person’s freedom as to render him “in custody.” ’ ” Stansbury v. California, 511 U.S. 318, 321, 114 S. Ct. 1526, 128 L. Ed. 2d
The trial court determined that the defendant was not in police custody on July 4 and 5 when he was
The defendant urges us to conclude, however, that as soon as he implicated himself in the crime in his first statement, his status became custodial because, at that point, no reasonable person would have felt free to leave. While we agree that admissions of culpability may lead the police either to arrest a suspect or to place restraints on his freedom approximating an arrest, the police in this case never altered the circumstances of their interviews of the defendant in such a way that his initial noncustodial status became custodial. The defendant was never physically restrained in any way, was told repeatedly that he could leave, was allowed unrestrained and unaccompanied movement about the police station during his stay and indeed was allowed to leave when the interviews were completed. See Oregon v. Mathiason, supra, 429 U.S. 493-94. Furthermore, the defendant, according to both his own testimony and that of the police, never asked to leave or requested a ride home. State v. Greenfield, supra, 228 Conn. 69 (factor in determining whether defendant was seized); State v. Damon, 214 Conn. 146, 148, 570 A.2d 700, cert. denied, 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990) (factor in determining whether defendant was in custody). The defendant also had had previous experience with the police wherein he had been interviewed and allowed to leave the police station. See State v. Pittman, supra, 209 Conn. 607. In light of the totality of the circumstances, we agree with the trial court that the defendant was not in custody for Miranda purposes during his interviews at the Manchester police station on July 4 and 5, 1989.
We still, however, must determine whether the defendant’s statements were voluntary under the federal constitution.
Under the due process clause of the fourteenth amendment, in order for a confession to be deemed
In concluding that the defendant’s statements were voluntary, the trial court emphasized that the defendant was unaware of most of the potentially coercive police contrivances. See footnote 16. Moreover, the trial court found that the defendant was not in any way physically restrained or denied any physical comfort, nor was he threatened in any way or offered any inducements to confess. The trial court also noted that the defendant is a middle-aged man with an average IQ who is able to read and write and to support his family. See State v. Toste, supra, 198 Conn. 584 (confessions of mildly retarded defendant with IQ in 68 to 71 range held voluntary). According to his own experts, the defendant is not mentally retarded and suffers from no thought disorder or psychosis. According to many who know him, the defendant is able to assert himself and to confront others and is not easily led. For purposes of its opinion, the trial court assumed that the defendant suffered from dependent personality disorder as claimed by his experts but nonetheless concluded that this condition did not cause him to succumb to any police pressure. In light of these facts, the trial court determined that, “considering the totality of the circumstances surrounding the defendant’s giving the confessions . . . the conduct of the police officers did not overbear the defendant’s will to resist and bring about confessions not freely self-determined. The state has met its burden
The defendant emphasizes the various psychological ploys devised by the police to induce him to admit his guilt, despite the uncontroverted testimony from him as well as from the state’s witnesses that he was unaware of those contrivances.
It is undisputed that Lombardo told the defendant that the defendant’s fingerprints had been found on the handle of the knife used to stab the victim, even though
We are also unpersuaded that the length of the defendant’s interrogation was sufficient to overbear his will and to compel him to give statements concerning the crimes with which he was eventually charged. It is undisputed that the defendant was at the police station
The defendant testified repeatedly that the reasons that he incriminated himself were that he wanted to use the bathroom and that he wanted to go home. The
II
The defendant next claims that his right to due process under article first, § 8, of the state constitution was violated because the state was allowed to introduce at trial evidence of his statements to the police even though those statements had not been electronically recorded. This claim is rejected based on our recent opinion in State v. James, supra, 237 Conn. 428-34, in which we held that electronic recording of confessions is not a prerequisite to their admissibility at trial under article first, § 8, of the state constitution.
The defendant’s final claim is that the trial court improperly declared a state’s witness unavailable and allowed the prosecution to play an audiotape of the witness’ suppression hearing testimony in lieu of his live testimony at trial. We disagree.
The following facts are necessary to resolve this issue. Brooks, the commanding officer of the detective division of the Manchester police department at the time the defendant gave his statements, testified on direct examination at the suppression hearing that he had known the defendant personally for some time, that he had been the last officer to interview the defendant on July 4 and 5, 1989, that the defendant admitted to having had a vasectomy and that the defendant would neither confirm nor deny that the defendant had sexually assaulted and killed the victim. After his brief direct examination by the state, Brooks was thoroughly cross-examined by the defendant’s attorney.
During the defendant’s trial, the state informed the court that Arthur Landry, Jr., a cardiologist, had submitted a letter to the state’s attorney’s office stating that Brooks, who was to be a witness for the state, would be unavailable to testify for medical reasons. The court ordered a hearing to determine Brooks’ availability. At the hearing, Landry testified that Brooks was scheduled to undergo an angioplasty in the next week to alleviate a severe narrowing of a cardiac artery. Landry stated that if Brooks were to testify at the trial before undergoing the angioplasty, the stress induced thereby might cause Brooks to develop angina
The defendant argued that Landry’s testimony was inadequate, as a matter of law, to establish Brooks’ unavailability and that a heart monitor could be set up in the courtroom to monitor Brooks’ condition or, in the alternative, that if Brooks were presently unavailable, the court should recess “for at least a period of three weeks.” The court, however, declared Brooks unavailable under the relevant case law and found that his prior testimony bore “sufficient indicia of reliability, specifically that it was given under oath, under the penalty of perjury, in the courtroom setting, at a formal hearing, with full opportunity for cross-examination by defense counsel. ” The court then denied the defendant’s motion for a three week continuance and ordered the tapes of Brooks’ suppression hearing testimony to be played to the jury.
“[T]his court and the United States Supreme Court have declared that prior testimony of an unavailable witness is admissible in a subsequent trial as an exception to the hearsay rule. Ohio v. Roberts, 448 U.S. 56, 67, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); California v. Green, 399 U.S. 149, 165, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970); State v. Parker, 161 Conn. 500, 503-504, 289 A.2d 894 (1971).” State v. Torres, 210 Conn. 631, 645-46, 556 A.2d 1013 (1989). The two part test for the admissibility of such testimony is as follows: “ ‘First . . . [t]he prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.’ [Ohio v. Roberts, supra, 65]. Even after the declarant is satisfactorily shown to be unavailable, ‘his statement is admissible only if it bears adequate “indicia of reliability” ’; id., 66; which serve to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.’
In State v. Frye, 182 Conn. 476, 481, 438 A.2d 735 (1980), we identified five of the most common situations in which the declarant will be deemed unavailable for the purposes of certain hearsay exceptions, one of which is where the declarant “is unable to be present or testify [at the hearing] because of death or existing physical or mental illness or infirmity.” The trial court has broad discretion in determining whether the proponent has shown a declarant to be unavailable. A trial court’s determination of the unavailability of a witness will be overturned only if there has been a clear abuse of discretion. State v. Rivera, 221 Conn. 58, 62, 602 A.2d 571 (1992). Likewise, a trial court’s decision not to grant a continuance will not be overturned absent an abuse of discretion. State v. Hamilton, 228 Conn. 234, 239, 636 A.2d 760 (1994). Every reasonable presumption must be made to sustain the trial court’s proper exercise of its discretion. State v. McKnight, 191 Conn. 564, 576-77, 469 A.2d 397 (1983).
In light of the severity of Brooks’ physical infirmity and its accompanying uncertain prognosis, we conclude that the trial court did not abuse its discretion in finding him to be unavailable due to physical illness. We also conclude that the trial court did not abuse its discretion in finding that Brooks’ former testimony was reliable. As the trial court noted, at the suppression hearing Brooks had testified under oath in an adversarial proceeding and had been subjected to thorough cross-examination by defense counsel. Moreover, the defendant does not claim now that Brooks’ former testimony was unreliable.
In this opinion PETERS, C. J., and BORDEN, NORCOTT and PALMER, Js., concurred.
The defendant’s convictions of arson murder, felony murder, murder, sexual assault in the first, degree and sexual assault in the third degree were combined with his conviction on the capital felony count for purposes of sentencing in order to comport with constitutional double jeopardy protections. State v. Chicano, 216 Conn. 699, 725, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).
General Statutes (Rev. to 1991) § 53a-46a (f) provides: “If the jury or, if there is no jury, the court finds that one or more of the [aggravants] 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 [aggravants] 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.”
His wife later confirmed this statement in a conversation with a Manchester police officer.
Howard is also the victim’s daughter.
Howard had telephoned the defendant’s home to speak to the defendant’s wife and express her concern that the victim had not answered Howard’s two telephone calls made to the victim’s apartment at approximately 7:55
The defendant walked to the victim’s apartment, located only a few blocks from his home, because he did not have a driver’s license. The defendant took the more circuitous of the two routes available to him despite being familiar with the shorter route.
A firefighter testified, however, that when he and other firefighters arrived at the scene, the back door was unlocked.
There are two doors to King’s apartment, one of which fronts the victim’s apartment and another located on the opposite side of her building. The defendant knocked on the door furthest from the victim’s apartment.
The associate medical examiner, Arkady Katsnelson, testified at trial that the victim had been alive during the fire.
The defendant was not given any information about the autopsy by Rautenberg.
King, who was elderly, previously had failed to disclose to Kendall Keyes, a police officer who had interviewed her at the time of the crime, that she had seen the defendant walking his dog. In addition, King’s testimony at both the suppression hearing and the trial manifested certain inconsistencies between her previous statements and other facts adduced at trial. At the suppression hearing, King testified that she had seen the defendant twice on the night of the murder — once at 7 p.m. when he used her telephone to call his wife and Howard, and once a few minutes later when he called 911. King was certain that the time of the defendant’s visits was shortly after 7 p.m., even though 911 records logged the time of the defendant’s telephone call at. 8:27 p.m. King also denied having talked to anyone from the Manchester police department other than Lombardo, even though she had apparently talked to Keyes on the night of the victim’s death.
The defendant conceded at oral argument that he did not adequately raise, before either this court or the trial court, a claim that the state constitution provides criminal defendants with additional protections in determining the voluntariness of a confession. Our review of the voluntariness of the defendant’s confessions properly is limited, therefore, to a federal constitutional analysis. We note, however, that we have recently held that the state bears the burden of proving the voluntariness of a confession by a preponderance of the evidence under article first, § 8, of the state constitution, as it does under the federal constitution. State v. James, 237 Conn. 390, 412-26, 678 A.2d 1338 (1996).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In ruling on the defendant’s motion to suppress, the trial court credited the state’s version ol'the events and emphasized that it had not been “faced with a situation in this case where the level of credible evidence offered by the state and [the] defense is comparable.” We are bound to accept the
We may consider the testimony adduced both at the trial and at the suppression hearing when determining the propriety of the trial court’s ruling on a motion to suppress a confession. State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986).
The evidence revealed that Lombardo had placed a number of props in the detective division office and in the youth services office designed to lead the defendant to believe that the investigation into the victim’s death was of the utmost importance to the Manchester police department and that the police had more evidence pointing to the defendant as the victim’s killer than they actually had. In the detective division office, these props included a sign on the door to the office that read, “Bernice Martin Homicide Task Force," two photographs of the victim, photographs of the victim’s apartment complex, a fabricated deoxyribonucleic acid (DNA) chart indicating that the defendant’s DNA matched that of the killer, a chart that accurately indicated that the killer’s blood type and secretor status matched that of the defendant, two maps covering both the defendant’s address and the victim’s address and indicating, partially truthfully, that dog tacking from the victim’s apartment had led to the defendant’s apartment, a fingerprint comparison unrelated to the victim’s death, writing on a blackboard listing the defendant’s places of employment and the names of certain streets in the area of the victim’s apartment, fabricated lists of police teams assigned to the fictional Bernice Martin Homicide Task Force and two manilla folders labeled “Bernice Martin Homicide Investigation” that another officer handed to Lombardo as he walked through the detective division office. In the youth services office, the props included another “Homicide Task Force” sign, two plaques on the wall that Lombardo had been awarded for outstanding police work, and a label on a filing cabinet drawer with the defendant’s name on it.
In denying the defendant’s motion to suppress, the trial court found as a factual matter that there was “no evidence that the defendant saw any of these artifices except two photographs of the decedent which were posted on the bulletin board and, according to Lombardo, were commented on by the defendant as Ihey passed through the detective division’s office. The defendant’s own testimony is that he does not remember seeing any of the
Lombardo testified that at some point after the defendant had returned from the bathroom, Lombardo had told him that his fingerprints had been found on the handle of the knife that had been used to stab the victim even though the knife handle had melted in the fire and no fingerprints had actually been recovered from it.
The defendant also had told Giacalone the day after the victim’s death that he had visited the victim the previous day, before he had discovered the fire. Moreover, in addition to her testimony that the defendant had walked their dog sometime after returning home from their afternoon visit with the victim, the defendant’s wife testified at the suppression hearing that the defendant could have left their condominium again between approximately 6:15 and 7 p.m. on the night of the victim’s death, when she had been upstairs in their home preparing their son for bed.
Before interviewing the defendant, the police had no information about the defendant’s extended family. The defendant admitted at trial that he had never known either of his grandmothers.
The second statement read: “I, Richard A. Lapointe, do hereby give the following statement to Detective Paul Lombardo of my own free will, free of any threats or promises that:
“On March 8, 1987,1 went to visit Bernice Martin with my wife and son. We left the apartment in the late afternoon and went homo. I left my house sometime after that to take the dog for a walk.
“I was at Bernice’s apartment with the dog. We were both there together and the time was right. I probably made a pass at her and she said no. So I hit her and strangled her.
“If the evidence shows that I was there, and that I killed her, then I killed her, but I don’t remember being there.
“I made a pass at Bernice because she was a nice person and I thought that I could get somewhere with her. She was like a grandmother to me, that I never had.”
The defendant never again mentioned either contacting an attorney or using the telephone.
The errors Morrissey inserted into the defendant’s statement, which the defendant corrected, were the following: Morrissey substituted “housecoat,” although the defendant had said “underwear” when referring to that which he had taken off of the victim; and he wrote “slapped,” although the defendant had said “threw," when describing the means he had used to force the victim to the bed. Morrissey also had written “lighter,” although the defendant had said “smoking pipe.”
The statement provided as follows: “I swear to Defective] Michael Morrissey that the statement I am about to give is the truth to the best of my knowledge; that on Sunday, March something, I was at Bernice Martin’s apartment with my son, Sean, and my wife, Karen. We visited from about 2 to 4 p.m., and then walked back home. After being home awhile, I left to walk the dog. I then walked back up to Bernice’s apartment, and she invited me in. We each had a cup of coffee (I think Bernice had tea). And I sat on the couch. I recall having my matches and my smoking pipe in my jacket pocket.
“After my coffee, I went into the bathroom (which is located off the bedroom). When I came out, Bernice was in the bedroom combing her hair. She was wearing a pink housecoat type of outerwear with no bra. (I could see her breasts when she bent over). I grabbed her with my hand around her waist area. When I did that she pushed me. I threw her on the bed and took off her underwear because I wanted to have intercourse with her. I got my penis inside her for a few strokes and then pulled out and masturbated. I did [come] on the bedspread when I was finished. I had already thrown her underwear on the right side of the bed. After the sex she said she was going to tell my wife Karen. I then went to the kitchen and got a steak knife with a hard plastic brown handle and stabbed Bernice in the stomach while she was laying on the couch. The rest of the incident I do not recall although I admit to having strangled her.”
At one point during his interview with Brooks, the defendant lost his temper. Brooks then reminded the defendant that he was free to leave, but the defendant elected to stay.
The defendant explained that he had only “glanced” at the form because Ludlow had already read the form to him and he believed that Ludlow’s reading of the form was accurate.
Kenneth Selig, a psychiatrist retained by the defendant to evaluate his mental state, testified that the defendant had told him that he had neither asked for a lawyer nor thought about getting one while at the police station on July 4 and 5.
In his initial brief in the section addressing the issue of whether article first, § 8, of the Connecticut constitution requires the electronic recording of confessions, the defendant alludes to his alleged request for counsel and to the state’s evidence that he had requested to use the telephone to call either his wife or an attorney. The defendant includes in that section a summary of the facts and a discussion of the case law relevant to the issue of the invocation of the right to counsel, but never specifically argues anywhere in his brief that, under either version of the facts pertaining to his reference to an attorney, either he was denied the right to counsel or there was an ineffective waiver of his right to counsel. From the structure of the defendant’s brief and the arguments contained therein, it appears that he alludes to this issue only to point out the virtues of electronic recording and the added protections such recording would provide to criminal defendants in the exercise of their rights. In response to the state’s allegation that he had waived such a claim in his initial brief, the defendant, in his reply brief, attempts to backtrack and raise the claim that he was denied his right to counsel. The defendant asserts therein: “[0]ne of the central issues in this appeal is whether due process requires electronic recording of custodial statements. Had there been such a recording, the defendant’s claim that he was denied a right to counsel when he clearly and unequivocally asked for one would have been easier to review. ” Pointing out that a potential claim on appeal would have been easier to decide had something else happened generally does not constitute raising that claim. We have, however, given the defendant the benefit of the doubt and assume that he did not waive the issue of the denial of his right to counsel.
Such beneficence, however, does not save the defendant’s claim on the merits. The trial court’s finding, which was not clearly erroneous, was that the defendant merely asked on one occasion whether it would be possible to use a telephone to call either his wife or an attorney and that a telephone had been provided for that purpose but that he had elected not to use it. We agree with the trial court that the defendant’s request to use the telephone did not sufficiently invoke the right to counsel and the police, therefore, were not bound to stop questioning the defendant. See Davis v. United States, 512 U.S. 452, 462, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994) (statement “[m]aybe I should talk to a lawyer” held not request for counsel); State v. Anderson, 209 Conn. 622, 628-30, 553 A.2d 589 (1989) (defendant’s remark that he “better call his wife and lawyer” not unequivocal request for lawyer).
At trial, the defendant changed his testimony and denied any possibility that any portion of the second written statement that he had signed had originated with him rather than Lombardo.
Morrissey denied making any such threat. Moreover, the defendant agreed that he had not given his statement in an effort to make it coincide with his wife’s statement because, as the defendant explained at the suppression hearing, he “didn’t know what [his] wife [had] said.”
The defendant testified that at some point during his interview with Lombardo, he had told Lombardo that he had not eaten all day. When asked if Lombardo had told him he could not have anything to eat, the defendant replied, “No. I’m not sure. I think he might have said, ‘Wait until you get done.’ ” The defendant subsequently reiterated that he was not sure if Lombardo had said that.
The defendant recalled that the conversation with Brooks had taken place in a room other than the youth services office.
According to Phillips, these tests included the revised edition of the Wechsler Adult Intelligence Scale, the Wechsler Memory Scale, the Bender-Gestalt test, the Aphasia Screening test, the Rorschach Inkblot test, the Thematic Apperception test, a sentence completion test and the revised Minnesota Multiphasic Personality Inventory.
The defendant’s verbal IQ was 90, while his performance IQ was 98. Phillips testified that the verbal IQ “measures an individual’s competence in areas that are generally mediated verbally” and “tend[s] to tap more educationally-based areas of functioning,” while the performance IQ is “less educationally-based” and “tends to involve more naive [sic] problem-solving tasks.” There is “a higher correlation between someone’s level of attained education and the verbal IQ, than the performance IQ.” The full-scale IQ represents a combination of the results of the verbal and performance subtests.
Phillips provided examples of responses that she considered “very idiosyncratic,” including the following: (1) when asked what Marie Curie was famous for, the defendant responded by noting that she had a wax museum, apparently confusing Marie Curie with Madame Tussaud; (2) when asked
Examples of potential examiner bias were raised by the state on cross-examination. Phillips testified that on the vocabulary subtest that is part of the revised WAIS-R, the examiner asks the subject to define various words and then gives the subject a score from zero to two depending on the accuracy of his response. When asked to define the word “terminate,” the defendant, who had previously been fired from various jobs and who had consulted an attorney about wrongful termination suits, responded, “fire, get rid of.” Phillips gave the defendant a score of zero for that particular answer even though the manual accompanying the revised WAIS-R indicates clearly that such a response should be given a score of one. Phillips’ error in scoring affected not only the defendant’s score for that particular question but also his overall score in that the tester is instructed to stop after the fifth consecutive word for which the subject receives a score of zero. Had the defendant been given his correct score for the word “terminate,” the test would have lasted for at least five more questions and the defendant would have had the opportunity to accumulate more points on the vocabulary subtest.
Examiner subjectivity was also apparent in the scoring of the comprehension subtest of the WAIS-R. When asked why some people prefer to borrow money from a bank rather than from a friend, the defendant responded, “A bank has more money.” Phillips gave the defendant a zero out of two for this response even though one of the two point answers suggested by the manual was that it would be better to borrow from a bank “because more money would be available” from the bank.
The defendant had also told Phillips that, before the time of the sexual assault on the victim, he had been experiencing sexual frustration because
Selig cited as another example of the defendant’s inability to make his own decisions the fact that the defendant had telephoned his wife after he had smelled smoke near the victim’s apartment and found the door to her apartment warm to the touch. Selig viewed this scenario as evidence that the defendant could not decide what to do in that situation without consulting his wife. The evidence reveals, however, that the defendant did not telephone either his wife or Howard seeking advice as to what action to take given the obviously dangerous nature of the situation, but, rather, that he concealed the facts of the situation from them and merely told them that the victim must have been asleep.
For instance, the defendant testified that it was his decision to have a vasectomy and that he did not believe it was a sin to have such an operation. His wife fully corroborated that testimony.
Selig described Dandy Walker Syndrome as follows: “There is in the brain a fluid that sort of bathes and protects the brain called the cerebrospinal fluid. And it circulates through the brain, and it circulates in different areas of the brain, sort of different sacs or pouches, I suppose you call them, called ventricles. And in the Dandy Walker Syndrome, there is an obstruction of one of the ventricles. The fluid is not able to circulate properly; it remains in the brain, and it develops a condition called hydrocephalus, which is known by a lay term as water on the brain, which requires a release of this sort of — I suppose a way to think of it is a damming effect, by a so-called shunt, which essentially provides an opportunity for the fluid to recirculate, thus relieving pressure on the brain, and relieving this buildup of water.”
Selig also requested a neurological examination of the defendant, which was performed by G.W. Anderson, a neuropsychologist. Anderson administered a computerized axial tomography (CAT) scan to the defendant, which showed that the defendant had had surgery, that a shunt was in place, and that the brain was otherwise normal. Anderson also gave the defendant an electroencephalogram, the results of which were within normal limits.
In Atkinson, we determined that this standard is equivalent to that employed by the United States Supreme Court, which identifies the custody determination as a mixed question of law and fact, although we have never used that particular label. State v. Atkinson, supra, 235 Conn. 759 n.17.
The trial court concluded that, even if the defendant was in custody, he had knowingly and voluntarily waived his Miranda rights. The defendant appears to concede that he was read and waived his Miranda rights when he first arrived at the police station. He claims, however, that the waiver became invalid at the moment that his situation became custodial, i.e., when he first admitted responsibility for the victim’s death. Even if we were to agree with the defendant that his situation became custodial at that point, we are not persuaded that the police would have been obligated to repeat his precustodial Miranda warnings because there were no intervening circumstances that would have rendered his precustodial waiver ineffective. See State v. Burge, 195 Conn. 232, 249, 487 A.2d 532 (1985).
The defendant does not raise an independent state constitutional claim. See footnote 12.
The trial court did find, in accordance with Lombardo’s testimony, that the defendant had noticed two photographs of the victim in the detective division office when he walked through it with Lombardo despite the defendant’s testimony that he did not recall seeing them. The record does not reflect when ihese photographs had been taken. We are unable to conclude that the defendant’s brief viewing of two photographs of the victim overbore his will and produced a confession that was not the product of his own volition. The defendant never mentioned the photographs to Lombardo again after first seeing them, the photographs were in his view for only a few seconds, and Lombardo never mentioned them to the defendant.
Although we find no causal relationship between the defendant’s confession and the police conduct under the facts of this case, we note that “[e]ven where there is causal connection between police misconduct and a defendant’s confession, it does not automatically follow that there has been a violation of the Due Process Clause. See, e.g., Frazier v. Cupp, [supra, 394 U.S. 739].” Colorado v. Connelly, supra, 479 U.S. 164 n.2. For instance, in Frazier, even if the defendant would not have confessed but for the police statement about his associate’s inculpatory remarks, the confession was not thereby rendered involuntary. The inquiry is not merely
We emphasize that the trial court’s conclusion that the defendant’s statements were voluntary did not foreclose him from presenting evidence at trial of the circumstances surrounding the giving of the statements. “The defense was free to present to the jury evidence of the defendant’s mental condition at the time of the interview, which under these facts goes to the weight and reliability, not the admissibility, of the defendant’s statements.” United States v. Robertson, 19 F.3d 1318, 1322 (10th Cir. 1994). The defendant in this case sought to convince the jury that his statements were unreliable by presenting evidence of his mental abilities and his version of the events surrounding the giving of his oral and written incriminating statements. Whether his statements were reliable, therefore, was grist for the jury’s mill.
Landry described angina as “a symptom produced by a lack of blood supply to the heart muscle.”
The defendant claims that the state failed to use due diligence to produce Brooks at trial; State v. Summerville, 13 Conn. App. 175, 181, 535 A.2d 818 (1988) (“[a]ll that is required by the proponent of the hearsay testimony is a good faith effort to procure the declarant’s attendance”); in that the state
Dissenting Opinion
with whom KATZ, J., joins, dissenting. I do not know if the defendant, Richard Lapointe, sexually assaulted and murdered his wife’s eighty-eight year old grandmother, but I do know that the circumstances surrounding his admissions and confessions, which substantially contributed to his conviction, are suspect. This case underscores the necessity for requiring the state to prove beyond a reasonable doubt, rather than by a mere preponderance of the evidence, that an admission or a confession obtained by the police through an interrogation was not coerced.
In this case, the defendant’s confession was procured more than two years after the victim’s assault and murder, and after nine hours of continuous interrogation by the police on July 4-5,1989. Even after this extensive period of questioning, the police were unable to stop the defendant from vacillating and were unable to pro
The defendant was examined by Anne M. Phillips, a clinical psychologist, and Kenneth M. Selig, a psychiatrist, both of whom testified at the defendant’s suppression hearing and whose reports were admitted into evidence. Phillips observed in her report that the defendant “is inclined to sometimes respond arbitrarily to conversation or questions [that] he does not fully understand. [He] tends to be quite concrete and inflexible in his reasoning, understanding situations in a narrow and set way, and having considerable difficulty
Both in this case and in our recent case of State v. James, 237 Conn. 390, 678 A.2d 1338 (1996), the defendants argued that in order to ensure that a confession procured by the police is voluntary, the state constitution requires that police interrogations be electronically recorded. I agree with the majority that such a procedure is not required by our state constitution.
Nevertheless, closely related to the policy considerations supporting electronic recordation of police inter
I include by reference my state constitutional analysis as set forth in State v. James, supra, 237 Conn. 445-53 (Berdon, J., dissenting). Certain policy concerns favoring the adoption of the reasonable doubt standard that were discussed in that dissent, however, merit reiteration. “Burdens of proof are allocated upon the willingness of society to accept the risk of an erroneous determination. For example, [w]e permit proof by a preponderance of the evidence in civil litigation because we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiffs favor. . . . Lego v. Twomey, 404 U.S. 477, 493, 92 S. Ct. 619, 30 L. Ed. 2d 618 (Brennan, J., dissenting).
“On the other hand, in a criminal matter we require proof beyond a reasonable doubt. The Supreme Court of the United States pointed out in In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), that the reasonable doubt standard is a prime instrument for
“I am unwilling to accept the risk of an erroneous determination that the confession was voluntary when in fact it may have been coerced. If we permit the prosecution to prove by a preponderance of the evidence that a confession was voluntary, then, to paraphrase Mr. Justice Harlan, we must be prepared to justify the view that it is no more serious in general to admit involuntary confessions than it is to exclude voluntary confessions. . . . Compelled self-incrimination is so alien to the American sense of justice that I see no way that such a view could ever be justified. Lego v. Twomey, supra, 404 U.S. 494 (Brennan, J., dissenting).
“The majority today places a confession on the same level as any other evidential ruling during the course of a trial. This fails to recognize that confessions are a special type of evidence. State v. Trammell, 240 Neb. 724, 736-37, 484 N.W.2d 263 (1992); State v. Phinney, 117 N.H. 145, 147, 370 A.2d 1153 (1977). As the Phinney court recognized: Confessions are usually obtained in the psychological atmosphere of police custody and in the greatest secrecy in which the cards can be stacked against the accused. He has no means of combating the evidence produced by the police save by his own testimony. The stakes are too high and the risk of error too great to permit a determination of admissibility to be decided by a balance of probabilities. State v. Phinney, supra, 147.
“The need for the heightened standard of proof beyond a reasonable doubt that a confession was volun
For the above reasons, including my detailed historic analysis that is set forth in James, I believe that the state constitution requires the state to prove the voluntariness of a confession beyond a reasonable doubt. In rejecting the standard of more probable than not, Connecticut would join those enlightened northeastern states, such as Maine, Massachusetts, New Hampshire, New York, New Jersey and Rhode Island,
Accordingly, I dissent.
Among his equivocations is the defendant’s second statement:
“I, Richard A. Lapointe, do hereby give the following statement to Detective Paul R. Lombardo of my own free will, free of any threats or promises that:
“On March 8, 1987,1 went to visit Bernice Martin with my wife and son. We left the apartment in the late afternoon and went home. I left my house sometime after that to take the dog for a walk.
“I was at Bernice’s apartment with the dog. We were both there together and the time was right. I probably made a pass at her and she said no. So I hit her and I strangled her.
“If the evidence shows that I was there, and that I killed her, then I killed her, but I don’t remember being there.
“I made a pass at Bernice because she was a nice person and thought that I could get somewhere with her. She was like a grandmother to me, that I never had.” (Emphasis added.)
In his diagnostic report of the defendant, Kenneth M. Selig, a psychiatrist, defined Dandy Walker Syndrome as “a congenital deformity of the bones at the base of [the] skull.”
Selig’s extensive report, which was admitted into evidence at the suppression hearing, set forth the defendant’s characterization of his July 4, 1989 interrogation, the attempts made by the defendant’s father-in-law and his brother-in-law to contact him and his mother-in-law’s (the victim’s daughter) description of the defendant’s submissive personality: “Richard does not recall any other contact with the police until July 4, 1989, 28 months later. He was preparing for a coolcout when the police called. This was late in the afternoon at around 4:30 p.m. The police asked him to come down and he complied because he thought it would only last a short while and he could still be home for the cookout. He told his wife that he was going because ’the police wanted to clear things up.’ He said that he was interrogated by one police officer for a couple of hours and that the police officer kept repeating the same question ‘did you kill Mrs. Martin?’ T kept telling the police I didn’t do it and they kept saying “you did it” so finally I said “what do you want me to say, that I did it?” and they said “ah, hah, see you confessed.” I said “I didn’t confess.” They kept saying the same thing over and over.’ He said that he was unable to use the bathroom for one or two hours after saying that he needed to. He said that he was read his rights and he recalls signing a statement to that effect. He stated that he felt intimidated ‘that he might smack me if I didn’t do what he said.’ He had not met the police officer [Detective Paul Lombardo] prior to that day and had never had his rights read to him before that. He said that after Officer Lombardo interviewed him, Detective [Michael] Morrissey took over and told him that he had been to his house to talk with his wife ‘and your wife says she still loves you. We’re going to ask you some questions and if your answers don’t agree with what your wife said, we’ll have your wife put in jail and your son taken away.’ Richard stated ‘that scared the hell out of me. I believed him. I’d never really been in trouble in my life. He asked how I killed'her. Immediately I began confessing because I didn’t want my wife to go to jail or my son to be taken away. 1 took what I told them I did from what he was saying to me. Whatever he told me I supposedly did, I agreed to. I was just making a confession so I could get out of there and go home.’ Richard recalls Captain [Joseph] Brooks subsequently talking to him. Richard knew Captain Brooks. Richard said that Captain Brooks wanted to talk to him ‘just as a friend, he said. I asked him if there was going to be more questioning and he said “no, I’m not going to question you. ” He wanted to know why I had only one child and I told him I’d had a vasectomy.’
“Richard stated that he kept telling the police that he did not do it but that they had pushed him. As I confronted him to explain how he could have confessed to a murder and a rape that he did not do, he said that he was concerned about his wife and son and that he became easily confused. He was unable to say how he thought that his confessing would help his wife except that it might correlate with what she had said. Essentially, he
“Richard told me that he was not worried when he left the police station even though he had just confessed to a brutal crime that could potentially carry tire death penalty. Indeed, he wondered aloud to me ‘should I have been?’ He said T was just thinking of getting home with my wife and son. I wasn’t thinking about being arrested. I didn’t even think I’d confessed to a crime. I’d just been talking with Morrissey. I was just answering his questions. I didn’t think Morrissey would really take me seriously.’ He said that he slept well that night as usual and got up the next morning and went to work as an ordinary day. His wife and son went to New Hampshire for the week of vacation that they had planned. When he got home from work, the police came to his house at about 5:00 p.m. and placed him under arrest. He said that during that day (July 5, 1989) he had been unconcerned and not worried that he would be arrested. He at no time thought about talking to a lawyer even after he had confessed. He apparently had no understanding of the seriousness of his confession and believed that the police would recognize that it was simply his effort to get out of the police station and get home to his family. The next day ‘I’d forgotten all about the confession. I had to work. I had a family to support. It was like any other day. When I got home from the police department, I forgot all about it. I was home with my wife and felt safe. That night my wife and my mother-in-law were behind me.’
“Richard’s wife and his in-laws met with his attorney’s investigator on two occasions later in July of 1989. Transcripts from those meetings reveal the following: Richard’s wife related that on July 4, 1989, at around 4:00 p.m. Richard went 1o the police department and was not released until approximately 2:00 a.m. on July 5 (roughly ten hours later). She said that he related lhat they kept asking the same thing over and over. She said that according to Richard he did ask for a lawyer but was told by the officers ‘no.’ He also asked if he could make a [telephone call and again he was told no. Richard also told his wife that the officers kept threatening that if he did not talk, his wife would get arrested and their son would have to go to the State. Richard told his wife that at around midnight the officers did tell him he could leave but they kept on talking to him and he could not
The defendant in this case does not argue that, under our supervisory powers, we should adopt this requirement for all future cases. See State v. Halloway, 209 Conn. 636, 645-46, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989) (this court has “inherent supervisory
“Every state but one in the northeast has adopted a standard of proof in excess of the preponderance of the evidence to determine the voluntariness of a confession. See State v. Collins, 297 A.2d 620 (Me. 1972) (reasonable doubt); Commonwealth v. Mandile, 397 Mass. 410, 492 N.E.2d 74 (1986) (same); State v. Benoit, 126 N.H. 6, 490 A.2d 295 (1985) (same); State v. Franklin, 52 N.J. 386, 245 A.2d 356 (1968) (same); People v. Huntley, 15 N.Y.2d 72, 204 N.E.2d 179, 255 N.Y.S.2d 838 (1965) (same); State v. Arpin, 122 R.I. 643, 410 A.2d 1340 (1980) (clear and convincing). Other states have also come to the same conclusion adopting the reasonable doubt standard. Snellgrove v. State, 569 N.E.2d 337 (Ind. 1991); Bradley v. Commonwealth, 439 S.W.2d 61 (Ky. 1969), cert. denied, 397 U.S. 974, 90 S. Ct. 1091, 25 L. Ed. 2d 268 (1970); Jones v. State, 461 So. 2d 686 (Miss. 1984); State v. Drayton, 287 S.C. 226, 337 S.E.2d 216 (1985), overruled in part on other grounds, State v. Torrence, 305 S.C. 45, 70, 406 S.E.2d 315 (1991); State v. Janis, 356 N.W.2d 916 (S.D. 1984); State v. Owens, 148 Wis. 2d 922, 436 N.W.2d 869 (1989).” State v. James, supra, 237 Conn. 452-53 (Berdon, J., dissenting).