199 Conn. 718 | Conn. | 1986
Lead Opinion
The defendant, Martin W. Shifflett, was indicted for murder in violation of General Statutes § 53a-54a. The defendant was tried by a jury, found guilty and sentenced to life imprisonment with a minimum term of twenty-five years. His appeal raises a number of issues which center on the admission into evidence of the defendant’s confession given during custodial interrogation by Connecticut state police officers. Relevant facts will be discussed as needed for an examination of the issues presented by the defendant.
I
Facts
Testimony at trial revealed that on February 14, 1980, Cara Quinn, age sixteen, was reported missing. She was found dead in a wooded area of Shelton on March 2,1980. Her death resulted from gunshot wounds to the neck and head. An autopsy of the victim showed that she had been raped before she was murdered.
Connecticut state police ballistics specialists soon determined that the fatal shots had been fired from a Basque .380 caliber semi-automatic pistol, manufac
On the basis of these facts, the police obtained a warrant to search the defendant’s apartment in Bridgeport, which was executed on March 21,1980. Although the search failed to produce the murder weapon, the police seized a weapon container—a red and black plastic box with the name “Basque” inscribed on its top— and various paraphernalia for such a gun. The police also seized a photograph of the defendant standing beside a rather extensive gun collection. One of the guns in the photograph was a Basque .380 caliber pistol.
Sometime thereafter, the defendant left the state, in violation of the conditions of his parole. A parole violation warrant was issued for his arrest. On July 11,1980, the defendant was arrested in Alabama on unrelated charges. When a routine computer check indicated that the defendant was wanted in Connecticut, New York and Ohio, the Alabama authorities immediately notified the Connecticut state police. The next day, July 12, 1980, troopers James Cavanaugh and Paul Reid of the Connecticut state police major crimes task force arrived in Alabama to interview the defendant at the place where he was confined. A series of interviews, extending over the next four days, culminated in the defend
II
Alabama Interrogation
The defendant was arrested on the Alabama state charges on July 11,1980. Later that same day he was arraigned in the United States District Court for the District of Alabama on the federal charge of unlawful flight to avoid confinement in Connecticut. The United States Magistrate advised the defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and appointed counsel to represent him on the federal charge. The defendant on this appeal does not challenge the legality of his arrest or confinement in Alabama.
Cavanaugh and Reid commenced custodial interrogation of the defendant at 2:30 p.m. on July 12,1980. The interview lasted for two hours and ten minutes, ending at 4:40'p.m. Before any questioning the troopers read the defendant his Miranda rights from a standard form. The defendant marked each statement of rights printed on the form with his initials to indicate that he had been so advised. He expressly refused, however, to sign the bottom portion of the form which would have acknowledged his consent to waive those rights. The defendant explained his refusal to sign the waiver portion of the form by stating that although he was willing to speak with the troopers, he did not desire to give a written statement. The troopers then advised the defendant that they were investigating the February 14,1980 homicide, and related the details of their
The interrogation of the defendant was not transcribed or recorded. We must, therefore, reconstruct what occurred from the testimony adduced at the pretrial hearing conducted on the defendant’s motion to suppress his oral statements. While we are assisted in this case by the trial court’s detailed memorandum of decision, “ ‘our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence. . . .’ "State v. Pellegrino, 194 Conn. 279, 288-89, 480 A.2d 537 (1984), quoting State v. Harris, 188 Conn. 574, 579-80, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983).
Although the precise sequence of events cannot be determined from the record, it is fairly clear that the dominant theme of the interrogation involved the troopers’ attempts to persuade the defendant to divulge the location of the gun. It is also clear that at the very beginning of the July 12, 1980 interview session the defendant informed the troopers that he did not want to talk about the gun. Thereafter, during the remainder of the interview, the troopers were cautious to approach the subject of the gun only indirectly. They produced
Cavanaugh and Reid returned to the defendant’s cell the next day, July 13, 1980, and interviewed him for approximately one hour, between 4 and 5 p.m. The defendant was again read the standard Miranda warnings, and he initialed each of his rights on a standard advisement form. He again expressly refused to sign the waiver portion. The troopers began by showing the defendant the photograph of the gun collection which had been seized during the search of his apartment. The defendant was then asked to identify the Basque .380 caliber pistol, which he did. After further questioning, the defendant confessed to the February 14,1980 murder and sexual assault, relating specific details of the incident that only the perpetrator could have known.
The defendant was interviewed again the following day, July 14,1980, from 11:50 a.m. until 2 p.m. He provided additional details of the crime, describing in particular how he had melted the Basque .380 pistol with a blowtorch at his former place of employment in Bridgeport. Upon arrival in Connecticut on July 15,1980, the defendant showed the troopers the exact location where the gun had been melted down. A search of the area produced metal parts that were later identified as having come from a Basque pistol.
The defendant on this appeal challenges the admissibility of his confession under the fourth, fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.
Ill
Voluntariness
We turn first to the defendant’s claim that his confession was involuntary. Irrespective of Miranda, and the fifth amendment itself; see Oregon v. Elstad, 470 U.S. 298, 306-307, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985); New York v. Quarles, 467 U.S. 649, 654, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984); Michigan v. Tucker, 417 U.S. 433, 444, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974); any use in a criminal trial of an involuntary confession is a denial of due process of law. Mincey v. Arizona, supra, 398; Jackson v. Denno, supra, 376. The voluntariness of a confession must be determined by the trial court as a preliminary question of fact; Sims v. Georgia, 385 U.S. 538, 87 S. Ct. 639, 17 L. Ed. 2d 593 (1967); and we scrutinize the trial court’s finding closely to ensure that it comports with “constitutional standards of due process.” State v. Derrico, 181 Conn. 151, 163, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); State v. Toste, 198 Conn. 573, 584, 504 A.2d 1036 (1986). “We have stated that ‘ “ ‘the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of “law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined . . . .’’Rogers v. Richmond, 365 U.S. 534, 544 [81 S. Ct. 735, 5 L. Ed. 2d 760] (1961).’ ” ’ State v. Staples, [175 Conn. 398, 408, 399 A.2d 1269 (1978)]; see State v. Derrico, supra, 163. ‘The ultimate test remains .... “Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination
The defendant made incriminating statements during custodial interrogation on four successive days, beginning with the initial session on July 12, 1980. After having resisted the entreaties of Cavanaugh and Reid during the initial session to divulge the location of the murder weapon, the defendant, by the end of the second session on July 13, 1980, had fully confessed to the February 14, 1980 murder and sexual assault under investigation, as well as to unrelated sexual assaults committed in Greenwich, Fairfield and in Finley, Ohio. Thereafter, during the third and fourth sessions on July 14 and 15, 1980, the defendant compliantly revealed the additional details necessary to complete the story of his guilt. We must therefore review the course of events during this four day period to determine whether the conduct of Cavanaugh and Reid was such as to overbear the defendant’s capacity for rational choice in light of his age, intelligence, background and experience. State v. Toste, supra, 584.
The defendant was thirty-two years old at the time he confessed to these crimes. He was married, and had been gainfully employed since his release from prison in 1979. He had been convicted of at least five previous felonies, and readily conceded at trial, and concedes on appeal, that he fully understood his Miranda rights. Although the defendant had achieved only a tenth grade education, he could read and write, and an examination of his testimony at trial clearly indicates that he possessed above-average intelligence. He testified that he had been present at his apartment on March 21, 1980, when police arrived to execute the search war
“On appeal, in order to determine whether the defendant’s constitutional rights have been infringed, we review the record in its entirety and are not limited to the evidence before the trial court at the time the ruling admitting the statements was made.” State v. Toste, supra, 576. Our review of the defendant’s testimony at trial, including his lengthy cross-examination by the state’s attorney, objectively demonstrates him to be an individual not easily dominated or overborne. This is not to suggest that Cavanaugh and Reid actively exerted such coercive pressures against the defendant as to violate due process in their efforts to obtain his
Considering the totality of the circumstances, we believe that the trial court’s finding on voluntariness is supported by substantial evidence. The defendant’s suggestion in his brief that his confession may have been induced by the troopers’ representations that he could be cleared by ballistics testing on the gun is simply not supported by the record. It is clear from the defendant’s testimony that he was not at all influenced by what was at best a half-truth, and at worst, a transparent and clumsy ploy. The defendant knew that he had destroyed the gun and therefore he could not seriously have entertained any thought that ballistics testing might clear him. Moreover, the defendant, in fact, revealed noth
IV
Waiver of Miranda Rights
We next address the defendant’s claim that the state failed to prove that he knowingly and intelligently waived his Miranda rights prior to the initiation of custodial interrogation. The defendant bases this claim on the fact that he expressly refused to sign the waiver portion of the standard advisement form used by Cavanaugh and Reid, and on the fact that he expressly stated that he would not make a written statement.
Absent an express waiver, the prosecution bears a heavy burden to demonstrate that the defendant “voluntarily, knowingly and intelligently” waived his right to remain silent and his right to counsel during custodial interrogation. Miranda v. Arizona, supra, 444, 475. As in every case, the waiver must have been made “with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410 (1986). Thus, while an “express written or oral statement of waiver . . . is not inevitably either necessary or sufficient to establish waiver” of Miranda rights; North Carolina v. Butler, supra, 373; the state must demonstrate: “(1) that the defendant understood his rights, and (2) that the defendant’s course of conduct indicated that he did, in
In the present case, the defendant affirmatively indicated his refusal to waive his Miranda rights by writing the words “refused to sign” on the signature line of the standard waiver form. He nonetheless conceded on direct examination at trial that he did in fact agree to speak with Cavanaugh and Reid. He also conceded that he understood his Miranda rights, and, specifically, that he understood that any oral statements he made to Cavanaugh and Reid could be used against him in court. According to both Cavanaugh and Reid, the defendant stated that he would not sign the waiver form because he did not want to give a written statement and because he “wanted to hold something back” so as not to jeopardize a possible “package deal.”
We find it difficult to reconcile the defendant’s conceded understanding of his Miranda rights with the equally undisputed fact that he would not waive those rights while agreeing to make incriminating oral admissions to his interrogators. This court, however, has been confronted with similar situations in State v. Harris, 188 Conn. 574, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983), where the defendant made incriminating oral admissions despite his refusal to sign a written waiver and despite his unwillingness “to make a written statement before consultation with a lawyer”; id., 578; in State v. Derrico, 181 Conn. 151, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980), where the defendant, after an initial “hesitancy” to sign the waiver form, immediately mutilated it after he had made a confession; id., 163; and in State v. Frazier, 185 Conn. 211, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982),
V
Fifth Amendment Right to Counsel
We next address the matter of the “package deal” and the defendant’s claim that he constructively invoked his fifth amendment right to counsel. Cavanaugh and Reid testified that on the first day of interrogation, July 12,1980, as they discussed with the defendant the various charges listed against him on the NCIC “rap sheet,” the defendant told them he would like to have all his charges resolved in a single “package deal.” The troopers further testified that the defendant stated that such a deal might be arranged between an attorney, who had represented him in the past, and the state’s attorney, upon his return to Connecticut. As we have previously stated, the defendant testified at trial that it was Cavanaugh who suggested the possibility of a “package deal” as an inducement to the defendant to confess to the February 14, 1980 homicide. The defendant’s testimony, however, was not before the trial court when it ruled on the motion to suppress, and the court expressly found, as the troopers testified, that the defendant had initiated the discussion about a “package deal.” The defendant on appeal has briefed his claim in reliance on the trial court’s finding, which we find to be supported by “substantial evidence”; State v. Pellegrino, 194 Conn. 279, 288-89, 480 A.2d 537 (1984); State v. Harris, supra, 580; namely, the testimony of Cavanaugh and Reid. We therefore consider this claim on the facts as found by the trial court.
The defendant relies on State v. Barrett, 197 Conn. 50, 495 A.2d 1044 (1985), in contending that his expres
The clarity we found in the circumstances of Barrett is lacking in the present case, and the importance of this essential distinction cannot be overstated. Miranda establishes a set of specific procedural guidelines for police to follow in their dealings with a suspect during custodial interrogation. Any incriminating admissions obtained by police in violation of Miranda’s guidelines may not be used against the defendant, at least during the state’s case-in-chief. Harris v. New York, 401 U.S. 222, 224, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). The Miranda exclusionary rule, however, “sweeps more broadly than the Fifth Amendment
The boundaries of what may be considered an invocation of the right to counsel are often difficult to define, and in many cases, the question may depend on whether police knew or should have known that the right had been invoked. The Supreme Court has found that the right to counsel was successfully invoked where the defendant, when informed of his right to have an attorney present, responded, “[Y]eah. I’d like to do that”; Smith v. Illinois, 469 U.S. 91, 93, 105 S. Ct. 490, 491, 83 L. Ed. 2d 488 (1984); as well as where the defendant, after a telephone conversation with a county attorney, told police, “I want an attorney before making a deal.” Edwards v. Arizona, 451 U.S. 477, 479, 101 S. Ct. 1880, 68 L. Ed. 2d 378, reh. denied, 452 U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981); see also
Where circumstances are such as to reasonably apprise the interrogating officers that an accused may have invoked his right to counsel, the officers must “clarify his intention rather than proceed to question him.” State v. Barrett, supra, 56; State v. Acquin, 187 Conn. 647, 672-75, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983). We have noted, however, that not every reference to an attorney during custodial interrogation is an invocation of the right to counsel. State v. Wilson, 199 Conn. 417, 443, 513 A.2d 620 (1986). In the present case, the defendant did not explicitly condition further discussion of the proposed “package deal,” or any other topic, on prior consultation with his attorney. Rather, the defendant indicated that he wanted to make a
VI
Right to Remain Silent
The defendant claims that Cavanaugh and Reid violated his Miranda rights by continuing to question him after he had invoked his right to remain silent. The relevant portion of Miranda reads as follows: “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person
We start from the premise that Cavanaugh and Reid violated Miranda during the first interrogation session on July 12, 1980 when they continued to question the defendant about the Basque .380 handgun after he had told them that he did not want to talk about it. “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response . . . .” Rhode Island v. Innis, 446 U.S , 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). The troopers’ attempts to induce the defendant to “clear” himself by submitting the gun for ballistics testing most certainly qualify under that definition. The defendant had clearly informed the troopers that he did not want to discuss the gun until his return to Connecticut, where he believed he would have the chance to negotiate a “package deal.”
Our determination that Cavanaugh and Reid violated Miranda leaves unresolved the question of “how sweeping the judicially imposed consequences” of a failure to respect the right to remain silent should be. Michigan v. Tucker, 417 U.S. 433, 445, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974). Clearly, the trial court should have suppressed the defendant’s statements given during
We recognize that Elstad draws a distinction between the “simple failure to administer the warnings, unaccompanied by any actual coercion”; id.; and more serious Miranda violations where police have employed “ ‘improper tactics’ or ‘inherently coercive methods’ that are ‘calculated to undermine the suspect’s ability to exercise his free will.’ ” Oregon v. Elstad, supra, 342 (Brennan, J., dissenting). In the present case it might be argued that the failure of Cavanaugh and Reid to respect the defendant’s wishes ultimately eroded his capacity for self-determination and convinced him that further resistance would be futile. The trial court, however, found that the defendant’s confession was given voluntarily, and we have already determined that its finding is supported by substantial evidence. Even if we were to find that the “surrounding circumstances and the entire course of police conduct” during the initial interrogation were such as to render the defendant’s statements involuntary; Oregon v. Elstad, supra, 318; we would nonetheless find, under our traditional analysis, a sufficient “ ‘break in the stream of events’ ” as to justify the admission of his subsequent confession. State v. Derrico, supra, 166. In assessing the causal connection between an involuntary statement and a subsequent confession, courts have considered the temporal proximity of the illegality and the confession, the presence of intervening circumstances, and the flagrancy of the official misconduct. Taylor v. Alabama, 457 U.S. 687, 690, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982); Brown v. Illinois, 422 U.S. 590, 603-604, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); Robinson v. Percy, 738 F.2d 214, 221 (7th Cir. 1984). When the relation
The only incriminating statement made during the initial interrogation session came when the defendant, in response to a question by Cavanaugh, stated that the proposed “package deal” would include the February 14, 1980 homicide. The defendant steadfastly refused to divulge the location of the Basque .380 handgun. The first interrogation session ended at approximately 4:40 p.m. on July 12,1980, and the troopers did not return until approximately twenty-four hours later, at 4 p.m. on July 13, 1980. In the interim the defendant had spoken with his wife, eaten several meals, and slept a night without disturbance. Before resuming questioning, the troopers gave the defendant fresh Miranda warnings, which he concedes he understood. We have already determined that the defendant knowingly, intelligently and voluntarily waived his Miranda rights despite his refusal to sign the waiver form. In view of the totality of the circumstances, we find that the defendant’s confession on July 13,1980, was sufficiently purged of the previous day’s Miranda violations.
VII
Resumption of Questioning
Our determination that the defendant’s confession was not infected with the taint of the July 12, 1980 Miranda violations does not address the question of whether Cavanaugh and Reid violated Miranda anew when, on July 13, 1980, they produced a photograph of the defendant’s gun collection and asked him to iden
As we have previously determined, the defendant’s right to cut off questioning about the gun was not scrupulously honored during the initial interrogation session on July 12, 1980. The requirement that police respect a person’s exercise of his right to remain silent “counteracts the coercive pressures of the custodial setting” by affirmatively indicating to the suspect that “he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation.” Id., 103-104. Thus, while “[sjcrupulously honoring a suspect’s rights for a few hours does not lessen the impact of subsequent coercive questioning”; Anderson v. Smith, supra, 102-103; the United States Supreme Court has stated that Miranda cannot “sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.” Michigan v. Mosely, supra, 102-103.
While Mosely was not a case “where the police failed to honor a decision of a person in custody to cut off
Fourth Amendment
The defendant’s final claim with respect to the admissibility of his confession is raised under the fourth amendment. Cavanaugh and Reid began the July 13, 1980 interrogation session by showing the defendant a photograph which had been seized during the March 21, 1980 search of his apartment. The photograph displayed a gun collection with the defendant standing beside it. Cavanaugh asked the defendant to identify the Basque .380 handgun in the photograph, and the defendant did so. Soon thereafter he confessed.
The defendant contends that the search of his apartment was unsupported by probable cause and hence violative of the fourth amendment. We agree. He next contends that the photograph was the “tainted fruit” of that search; Wong Sun v. United States, supra; and again we agree. We cannot agree, however, with his further contention that his viewing of the unlawfully seized photograph caused him to confess.
“In reviewing a search warrant affidavit the court ‘must ascertain whether the facts in the affidavit are sufficient to justify an independent determination by a neutral and detached issuing judge that the necessary probable cause exists for the issuance of the warrant. State v. Williams, 169 Conn. 322, 326, 363 A.2d 72 (1975); State v. Rose, 168 Conn. 623, 627-28, 362 A.2d 813 (1975); State v. Allen, 155 Conn. 385, 391, 232 A.2d 315 (1967).’ State v. DeChamplain, 179 Conn. 522, 527-28, 427 A.2d 1338 (1980); see State v. Arpin, 188 Conn. 183, 193, 448 A.2d 1334 (1982). ‘Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there
The allegations in the warrant affidavit have previously been set forth. Viewing those allegations, and all reasonable inferences drawn therefrom, in the light most favorable to a finding of probable cause, the issuing judge may reasonably have reached the following conclusions. The defendant possessed a Basque .380 handgun of the same type used to kill the victim, and given human nature, he most likely kept it in or near his apartment. The defendant had not gone to work on the day of the crime. He was familiar with the area where the victim was last seen because his in-laws lived nearby. The victim had been sexually assaulted before she was murdered, and the defendant very recently had been identified as having committed two violent sexual assaults. Both sexual assaults were accomplished at knifepoint, and while neither victim was killed, one had been strangled and left for dead. Finally, the defendant had committed an “armed” robbery several years before, and considering all the circumstances, was an individual dangerously prone to violence.
In attempting to reconstruct the situation as it must have appeared to the police and issuing judge, we have
The affidavit sets forth sufficient facts to sustain a reasonable belief that the defendant possessed the Basque .380, and the issuing judge could reasonably have inferred that the defendant kept it in his apartment. But probable cause to search requires more than a reasonable belief that the item to be seized will be found in the place to be searched—also required is a reasonable belief that the items to be seized are “ ‘connected with criminal activity.’ ” State v. Delmonaco, supra, 337. There is no indication in the affidavit that the Basque .380 is a particularly rare gun, or if not rare, that it is owned by only a small circle of persons in the local area. Nor is there an allegation that the defendant was in the vicinity of the crime on February 14, 1980. The fact that he was familiar with the general area because his in-laws lived nearby hardly supports a reasonable belief that he was there that day. We note that under the circumstances of this case, probable cause to believe that the defendant’s gun was the murder weapon is the same as probable cause to arrest him for murder. The quantum of evidence necessary to justify official action in either case would be the same. State v. DeChamplain, supra, 529 n.7; 1 LaFave, Search and Seizure (1978) § 3.1 (b). Viewed from this perspective, it is clear that the police had no probable cause to search the defendant’s apartment.
“ ‘ “There is often a fine line between mere suspicion and probable cause” ’ ”; State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983); State v. Magnotti, 198 Conn. 209, 213, 502 A.2d 404 (1985); but that line must nonetheless be drawn. “[P]hysical entry of the home is the chief evil against which the . . . Fourth Amendment is directed,” and “unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered.” United States v. United States District Court, 407 U.S. 297, 312, 313, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972).
Since the search of the defendant’s apartment violated the fourth amendment, the fruits of that search should not have been admitted against him at trial. Wong Sun v. United States, supra. Moreover, Cavanaugh and Reid should not have had the use of the illegally seized photograph during their interrogation of the defendant. “In the typical case in which the defendant . . . was confronted by the police with evidence they had illegally seized, it is apparent that there has been an ‘exploitation of that illegality’ when the police subsequently question the defendant about the evidence or the crime to which it relates. This is because ‘the realization that the “cat is out of the bag” plays a significant role in encouraging the suspect to speak.’ ” 3 LaFave, supra, § 11.4 (c), p. 639; see Anderson v. Smith, 751 F.2d 96, 104 (2d Cir. 1984), and cases cited therein. For the following reasons, however, we do not believe that the present case is the “typical case” or that the photograph played a “significant role” in inducing the defendant to confess.
The defendant was aware that his apartment had been searched because he was there when the police arrived. He did not leave the state until three days later, and even after he left, he maintained contact with his cousin, Edward Reskus, who kept him informed of police efforts to locate him and the Basque .380 handgun. The defendant was thus aware that the police knew that he possessed a Basque .380 handgun, and
IX
Harmless Error
We have determined that various evidence in this case was illegally obtained, and therefore, not properly admissible at the defendant’s trial. Specifically, we refer to: (1) the defendant’s statements made during the July 12, 1980 interrogation session after he had invoked his right to remain silent about the gun; and (2) the products of the search of his apartment on March 21, 1980. We must now determine the disposition of this case in light of the improper admission of this evidence at the defendant’s trial.
“While the violation of certain constitutional rights automatically amounts to harmful error . . . the violation of others, such as the admission of evidence obtained in violation of the Fourth Amendment, does not. Bumper v. North Carolina, 391 U.S. 543, 550, 88 S. Ct. 1788, 1792, 20 L. Ed. 2d 797 (1968); Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963).” United States v. Molt, 615 F.2d 141, 145 (3d Cir. 1980). The “ ‘harmlessness of an error depends upon its impact on the trier and the result’ ”; State v. Ortiz, 198 Conn. 220, 225, 502 A.2d 400 (1985), quoting State v. Bruno, 197 Conn. 326, 336, 497 A.2d 758 (1985) (Shea, J., concurring); and the test is whether “there is a reasonable possibility that the improperly
We find the same to be true with respect to the defendant’s incriminating admissions made during the initial interrogation session on July 12,1980. We have noted that a confession, if sufficiently corroborated, is the “most damaging evidence of guilt”; State v. Ruth, 181 Conn. 187, 199, 435 A.2d 3 (1980); State v. Vaughn, 171 Conn. 454, 460, 370 A.2d 1002 (1976); and in the usual case will constitute the “overwhelming evidence” necessary to render harmless many errors at trial. See Milton v. Wainwright, 407 U.S. 371, 372, 92 S. Ct. 2174, 33 L. Ed. 2d 1 (1972); Robinson v. Percy, 738 F.2d 214, 220 (7th Cir. 1984). The defendant’s intimate knowledge of the details of this crime, his flight from the state, and his destruction of the Basque .380 handgun, all provide strong corroboration for his confession. We conclude that the defendant’s confession of July 13,
X
Jury Instructions
The defendant’s final claim is that the trial court erred in its instructions to the jury on the admissibility of his confession. He claims specifically that a single portion of the charge assumes as a fact that the defendant confessed to Cavanaugh and Reid, and thereby removed that issue from the jury’s consideration. As previously noted, the defendant testified at trial and denied that he had made a confession. The defendant took a proper exception to the following portion of the charge: “You will recall that the State offered in evidence testimony as to oral statements made out of court to the police by the accused, which it claims were in the nature of the confessions or admissions, tending to show his guilt of the crime charged. Out of your presence, I considered the question of their admissibility. I did hold that testimony to be admissible. Let me now caution you that this ruling on my part meant no more than the circumstances surrounding the making of those statements were such that you should have before you for your consideration, the statements.”
The trial court clearly had no business informing the jury of matters decided out of their presence. The reason that a hearing on voluntariness is held out of the jury’s presence is so that they will not know about it. It was not necessary for the trial court to inform the jury that it had ruled the confession admissible. Credibility was the critical issue at trial, with the testimony of Cavanaugh and Reid on the one hand posed against
The question whether reversal is required because of this error depends on the likelihood that it influenced the jury. We have stated that in cases involving constitutional error, the test is whether it is reasonably possible that the jury were misled, and in cases not involving a constitutional error, whether it is reasonably probable that the jury were misled. State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077 (1975). While it is often difficult to distinguish between these two forms of error, we have generally considered an error to be “constitutional” in nature when it implicates a fundamental constitutional right under decided cases of the United States Supreme Court. See, e.g., State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The “error” in the present case, however, lies in the very possibility that the jury were influenced by the trial court’s improper remarks. The defendant has not presented us with any cases which hold that it is specific constitutional error for a trial court to instruct the jury on the outcome of its pretrial hearing on voluntariness, and we have found none. We therefore believe that the test to be applied in this case “ ‘ “is whether the charge considered as a whole presents the case to the jury so that no injustice will result.” . . .’ State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977).” State v. Stepney, 191 Conn. 233, 247, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 722, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984).
Immediately after its improper remarks, the trial court instructed the jury: “My ruling is not to be taken
There is no reason for us to presume that the jury did not follow the trial court’s instructions and thus fully understand that disputed issues of fact were solely within their province to decide. Nor do we think it reasonably possible that the jury could have believed that the fact of the confession was not disputed. We conclude that the trial court’s remarks, while highly improper, could not ultimately have brought about an injustice in this case.
There is no error.
In this opinion Healey, Santaniello and Dean, Js., concurred.
The defendant also suggests that his sixth amendment right to counsel was violated. United States v. Gouveia, 467 U.S. 180, 193, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984) (Stevens, J., concurring). He does not contend that this right attached upon his presentment in federal district court on July 11, 1980, on the federal charge of unlawful flight to avoid confinement in Connecticut. See State v. Derrico, 181 Conn. 151, 167-68, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). Rather, he claims a sixth amendment right to counsel because the murder investigation had ceased to be “a general inquiry into an unsolved crime” at the time of his interrogation. Escobedo v. Illinois, 378 U.S. 478, 490, 84 S. Ct.
Concurrence Opinion
concurring. I disagree with the portion of the majority opinion that concludes that the affidavit
As the majority opinion recognizes, the search warrant affidavit reasonably supports conclusions that the defendant possessed a Basque .380 handgun, the same kind of weapon used in murdering the victim on February 14,1980; that he was absent from work on the date the crime occurred; that he was familiar with the location where the victim last was seen; that he had been identified as the person who had kidnapped and sexually assaulted one woman in Fairfield on February 22, 1980, and who had kidnapped, sexually assaulted and attempted to murder another woman on March 20, 1980, in Greenwich; and that he had been convicted for armed robbery in 1974.
Given the deference that should be accorded determinations of probable cause by officials charged with the responsibility of issuing warrants; United States v. Ventresca, 380 U. S. 102, 109, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); 1 LaFave, Search and Seizure § 3.1 (c); the coincidence of these factors in pointing to the defendant’s residence as a place where significant evidence might be obtained relating to such a serious crime as that involved here adequately supported a finding of probable cause. Most significant, of course, were the circumstances indicating that the defendant kept at his home a gun of the same model, manufacture and caliber as that used in the murder. Although the majority opinion points to the failure of the affidavit to furnish any information as to whether “the Basque .380 is a particularly rare gun,” the judge issuing the warrant was not precluded from relying upon his own general knowledge to conclude that a Basque .380 semi
With respect to the charge concerning the ruling on the admissibility of the defendant’s confession, the trial court was attempting to negate the effect of the inference the jury might otherwise have drawn from its awareness that the objection to that evidence had been overruled. The defendant’s objection to the evidence had been made in the presence of the jury. The court’s instruction, “that this ruling on my part meant no more than the circumstances surrounding the making of those statements were such that you should have them before you for your consideration,” was reasonably adapted to overcome the inference the jurors would otherwise have drawn that the court’s ruling admitting the confession discredited the defendant’s claim of involuntariness in his testimony before them. I disagree with the majority’s characterization of this instruction as “highly improper.”
I concur with the result.