State v. SebastianState v. Sebastian
- Reporters:
- , ,
- Before:
- Connell
Lead Opinion
The defendant appeals from his conviction of felony murder1 in violation of
The trial court found the following facts from the evidence adduced at the suppression hearing. Believing that the defendant was involved in a homicide that occurred during a burglary of Pauline Grincunas’ apartment, Waterbury police officers invited the defendant to the police station for questioning. At the station, Sergeant Neil O’Leary and Sergeant Robert Henderson interviewed the defendant. Before beginning the interview, O’Leary informed the defendant of his Miranda rights. Initially, the defendant denied knowledge of the burglary or homicide, but orally incriminated himself in two other burglaries in the Grincunas neighborhood. Before this statement concerning the unrelated burglaries was reduced to writing, O’Leary again advised the defendant of his Miranda rights.
Approximately twelve hours after the defendant arrived at the police station, Anthony James, a codefen-dant in this case, inculpated himself in the Grincunas burglary, and, in a written statement, told police that *534the defendant had killed Grincunas during the burglary of her apartment.
When confronted with James’ confession, the defendant indicated that he wanted to change his earlier statement. After the defendant was again advised of his Miranda rights, the defendant implicated himself in the Grincunas burglary, but claimed that James had actually killed her. Before the defendant signed the written transcription of this oral confession, he was again advised of his Miranda rights.
While the defendant was reiterating his confession to the felony murder of Grincunas, his attorney arrived at the police station and asked to see him. Because the defendant was not informed that his attorney was present to represent him until after he had signed the confession, the trial court suppressed the written statement.
I
A
We must first address the threshold issue of whether the defendant may raise an issue on appeal other than the voluntariness of his statements under
In strictly construing these conditions, our Supreme Court has declined to consider claims that are not encompassed within the statute. State v. Madera, 198 Conn. 92, 99, 503 A.2d 136 (1985). In Madera, for exam *535pie, the court refused to review the defendant’s appeal of the denial of his motion to suppress on involuntariness grounds because, at that time, voluntariness did not come within the scope of
B
Even though we may not review the defendant’s claims that do not challenge voluntariness under
Subsection (b) of § 4003, however, is broader than both the statute and subsection (a) and establishes a procedure by which an appeal from a conditional nolo contendere plea may be taken from “the adverse determination of any motion made prior to the close of evidence . . . .” (Emphasis added.) Before a defendant may appeal from the denial of a motion under § 4003 (b), however, he must satisfy a series of requirements. The conditions precedent to appellate review are: (1) *536the defendant must reserve “in writing the right, on appeal from the judgment, to review of the adverse determination”;
In the present case, the defendant neither sought nor received the trial court’s approval to condition his nolo plea on the right to appeal those issues not within the scope of
The defendant relies on State v. Ballantyne, 17 Conn. App. 209, 211, 551 A.2d 770 (1988), to support his position that he should be allowed to appeal under § 4003 despite his failure to comply with its provisions. In Ballantyne, this court excused the trial court’s failure to make an explicit finding on the record of the impact of the nolo contendere plea as required by § 4003 (b). Because the trial court that took the plea in Ballantyne, however, also presided over the suppression motion, Ballantyne held that the court had acquired sufficient knowledge of the case so that “[ijmplicit in the [trial] court’s decision to accept the plea was the determination that the defendant’s motion to suppress would have a significant impact on the outcome of the case.” Id., *537212. Our Supreme Court has similarly approved of implicit determinations of the conditions of § 4003 (b). State v. Piorkowski, supra, 236 Conn. 420.
Unlike theBallantyne and Piorkowski courts, we are not able to conclude that the trial court in the present case implicitly made the determinations required by § 4003 (b). Here, the trial court that accepted the defendant’s nolo contendere plea did not preside over the suppression hearing and had no independent knowledge of the case. We cannot conclude that the trial court accepting the plea had reason to believe, on the basis of the printed plea form before it, that the defendant would seek appellate review of issues falling outside the ambit of
In summary, because these nonvoluntariness claims are not claims that can be reviewed pursuant to either
C
Despite the defendant’s failure to qualify his claims under either the statute or the rule of practice, we also consider whether we may appropriately review his claims other than involuntariness under our general supervisory powers.
The state’s position is not merely a hypertechnical argument designed to obstruct the defendant’s appeal without any concomitant benefit to the state. The state did not become aware of the defendant’s intention to raise issues other than those delineated in
Our Supreme Court has recognized the problems inherent in denying the state the opportunity to be heard with regard to
Accordingly, we decline to exercise our supervisory powers to review claims that the defendant did not properly raise under § 4003 (b).
*539II
The defendant next claims that the trial court improperly found that he orally confessed to the Grincunas burglary and also improperly found that his oral confession was preceded by a valid Miranda waiver.
A
Whether the defendant orally confessed to the Grin-cunas burglary is an issue of fact. Fact-finding, including resolving questions of credibility of witnesses, is a function of the trial court. Drabik v. East Lyme, 234 Conn. 390, 394-95, 662 A.2d 118 (1995). This court will not disturb those findings unless they are clearly erroneous. Id., 394.
Henderson testified that the defendant orally acknowledged his participation in the burglary before his statement was reduced to writing. Upon finding Henderson’s testimony to be credible, the trial court found that the defendant orally implicated himself in the Grincunas burglary before his statement was transcribed. Accordingly, we conclude that the trial court’s finding was supported by the evidence and was not clearly erroneous.
B
We next address whether the trial court properly found that the defendant’s oral confession to his participation in the Grincunas burglary was preceded by a valid Miranda waiver.
The purpose of Miranda warnings is to assure that a confession is the product of an “essentially free and unconstrained choice by its maker.” (Internal quotation marks omitted.) State v. Madera, 210 Conn. 22, 48, 554 A.2d 263 (1989). In accordance with the well established test of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), a defendant must intention*540ally relinquish or abandon his Miranda rights in order for a waiver of those rights to be valid. The state bears the burden of proving, by a preponderance of the evidence, that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights. State v. Stanley, 223 Conn. 674, 686, 613 A.2d 788 (1992).
When considering the validity of a claimed waiver, we examine the totality of the circumstances surrounding it. State v. Madera, supra, 210 Conn. 49. Factors used to assess the totality of the circumstances include the age of the accused, the extent of his education, evidence concerning advisement of constitutional rights and the length and nature of the interrogation. State v. Toste, 198 Conn. 573, 584, 504 A.2d 1036 (1986). Although we usually defer to findings made by the trier of fact, such deference is qualified in questions of this nature by the need to examine the record scrupulously to ascertain whether the factual findings were supported by substantial evidence. State v. Stanley, supra, 223 Conn. 686.
In claiming that the record is insufficient to support a conclusion that the state sustained its burden of demonstrating waiver, the defendant relies on State v. Wilson, 183 Conn. 280, 439 A.2d 330 (1981). In Wilson, the record was devoid of any evidence that the defendant expressly waived his Miranda rights. Id., 287. In this case, however, the record contains direct testimony that the defendant expressly agreed to make an oral statement after he waived his rights. The record also contains nontestimonial evidence, including the signed waiver cards, that indicate an express waiver. Because direct evidence was presented in support of the express waiver, the defendant’s reliance on Wilson is misplaced.
The record reveals that the defendant is literate, had completed the tenth grade, and was familiar with the Miranda warnings from previous experiences with the *541legal system. Additionally, the defendant was advised of his Miranda rights three times before giving the oral statement in question. He was advised of his rights and executed an express written waiver during the preparation of his first written statement inculpating himself in the two unrelated burglaries. The defendant testified that before giving each of his written statements, he had read the rights printed on the Miranda card, read the card aloud to Henderson, understood the rights, and signed the card waiving those rights. After being confronted with his codefendant’s account of the Grin-cunas burglary and after being advised of his rights for a fourth time, the defendant orally confessed to his participation in the burglary.
On the basis of on our thorough examination of the record, we conclude that there was substantial evidence to support the trial court’s finding that the defendant validly waived his constitutional protections of silence and legal counsel before orally confessing to the Grincu-nas burglary.
Ill
In addition to claiming that his oral statement was not supported by a valid Miranda waiver, the defendant also claims that the trial court should have suppressed his oral statements because they were made involuntarily. Irrespective of Miranda, due process of law prohibits the state from using an involuntary confession at trial. Brown v. Allen, 344 U.S. 443, 475, 73 S. Ct. 397, 97 L. Ed. 469 (1953). The state has the burden of proving the voluntariness of a confession by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); State v. Smith, 200 Conn. 465, 477, 512 A.2d 189 (1986). Unless that burden is met, a confession compelled by pressure from a police officer is inadmissible. State v. Smith, supra, 476. The question of voluntariness is one of fact *542for determination by the trial court in the exercise of its discretion, subject to the constitutional standards of due process. State v. Derrico, 181 Conn. 151, 162-63, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).
“Coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado v. Connelly, supra, 479 U.S. 167. If that predicate exists, we must ultimately determine whether the confession is the product of an essentially free and unconstrained choice by its maker, that is, whether the confessor’s will has been overborne and his capacity for self-determination critically impaired, so that the use of the confession offends due process. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).
The crux of the defendant’s argument is that the police brought him to the station for questioning in the Waterbury burglaries as a ruse to compel his confession to felony murder. The defendant has a tenth grade education, is literate and repeatedly claimed to understand the rights on the Miranda card. The defendant testified that he knew that police wanted to question him about some burglaries in addition to the Grincunas homicide. In an exercise of caution, the police advised the defendant of his Miranda rights before each separate interrogation. The defendant himself asked to change an earlier statement once his codefendant confessed. Although the defendant was in custody for thirteen hours, there is nothing in the record to support a finding of coercive police activity.
Accordingly, we conclude that the record supports the trial court’s finding that the state met its burden of proving that the confession was voluntary.
*543The judgment is affirmed.
In this opinion LANDAU, J., concurred.
Notes
This appeal was taken originally to the Supreme Court. Pursuant to
“(b) With the approval of the court, after a hearing to consider any objections thereto, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any motion made prior to the close of evidence, which motion must be specified in such written reservation. If the defendant prevails on appeal, the judgment shall be set aside and the defendant shall be allowed to withdraw the conditional plea of nolo contendere after the case has been remanded to the trial court. The court shall not accept a plea of guilty or nolo contendere pursuant to this subsection where the adverse determination of the specified motion would not *533have a significant impact on the disposition of the case in the trial court. The court shall also decline to accept such a nolo contendere or guilty plea where the record available for review of the ruling upon the specified motion is inadequate for appellate review of the court’s determination thereof.”
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
This court’s jurisdiction to review appeals of convictions based on nolo contendere pleas arises out of
Piorkowski was decided after this court heard oral argument on the present case.
Concurrence Opinion
concurring. I agree with the majority opinion in so far as it rejects the defendant’s claim that his oral confession to the police should have been suppressed because the evidence does not support the finding of the trial court that he confessed voluntarily after validly waiving his constitutional lights in accordance with the procedure prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). I disagree, however, with the position taken in part I C of the opinion, that the supervisory authority of the court should not be exercised in this case to consider the remaining ground on which the defendant relies for excluding his confession.
That ground is the claimed failure of the police to present the defendant promptly for arraignment, as required by
I
In State v. Chung, 202 Conn. 39, 43-45, 519 A.2d 1175 (1987), the Supreme Court exercised its inherent *544supervisory authority over the administration of justice in order to review a claim that a confession was involuntary prior to the 1988 amendment of
Similarly, this court, following the view of Chung that strict adherence to procedural statutes and rules of practice must give way to the overriding necessity of administering justice in a fair and efficient manner, should invoke its supervisory authority to review the defendant’s remaining ground for excluding his confession rather than to leave pending a claim likely to resurface in a future habeas corpus proceeding. It may be well to call the attention of the bar to the not infrequent failure to conform to the procedures prescribed by
The concern of the majority that we should not exercise our supervisory powers “to allow litigants to circumvent rules of practice” would leave few occasions for resort to those powers. When the rules have been followed, there is seldom any need for us to exercise those supervisory powers. Usually, it is when attorneys or trial courts have bungled by failing to comply with some procedural requirement that an appellate court will exercise its authority to disregard the nonconformity so that the judicial system may function fairly and efficiently in a particular case.
Contrary to the view of the majority, the state had sufficient opportunity “to object to the plea” and “to argue the impact of the plea on the disposition of the case.” Nothing in the record suggests that the defendant entered his nolo contendere plea ex parte. If, during the plea proceeding, the state had voiced the objections now raised on appeal, the trial court undoubtedly would have insisted on compliance with § 4003 (b) before accepting the plea. In any event, the state could hardly have argued that the defendant’s plea would not have had a “significant impact on the disposition of the case in the trial court”;
The state similarly had an opportunity to object to the sufficiency of the record for appellate review. In this appeal, no claim has been raised that the record is inadequate for review of any of the defendant’s claims. This court implicitly has found the record sufficient for review of the issues of voluntariness and Miranda compliance by resolving those issues on *546appeal. The same record, consisting of the transcript of the hearing on the motion to suppress at which those issues together with the issue of untimely arraignment were considered, is equally sufficient for review of the defendant’s remaining claim involving the latter issue.
II
The provision of
In Darwin, the arrest had been made at 9:40 a.m., twenty minutes before the session of the arraignment court began. The defendant attempts to distinguish Darwin and its progeny from this case on the ground that there was ample time, two hours and twenty minutes, between his arrest at 6:40 a.m. and the opening of the Superior Court in Waterbury at 9 a.m. for the police to have presented him for arraignment at that session. Despite this fact, however, I conclude that the police as well as the trial court were entitled to rely on the long-standing construction of the term “next session” adopted in Darwin, “excluding any session on the day on which the arrest was made.” State v. Darwin, supra, 155 Conn. 134.
Accordingly, I concur in the judgment.