State v. Brandon ( 2023 )

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STATE v. BRANDON—CONCURRENCE
D’AURIA, J., concurring in part and concurring in the
judgment. I concur in the court’s judgment affirming
the trial court’s judgment of conviction and in most
of the majority’s opinion and analysis. In particular,
I conclude that, under federal constitutional law, the
defendant, Bernard A. Brandon, has not met his burden
of demonstrating that he was ‘‘in custody’’ during any
part of the interrogation conducted by two police offi-
cers, Lieutenant Christopher LaMaine and Detective
Ada Curet, at the office of the defendant’s probation
officer. See, e.g., State v. Mangual, 311 Conn. 182, 192
n.9, 85 A.3d 627 (2014) (‘‘[t]he defendant bears the bur-
den of establishing custodial interrogation’’).
I write separately for two reasons. First, although we
consistently have stated that the custodial determina-
tion is made considering ‘‘ ‘the totality of the circum-
stances’ ’’; State v. Edwards, 299 Conn. 419, 428, 11
A.3d 116 (2011); in my view, that does not mean that
a defendant cannot be in custody during one or more
parts of the interrogation and not during others. In the
present case, I believe there were two distinct parts of
LaMaine and Curet’s interrogation of the defendant—
one that occurred before and the other that occurred
after the defendant was advised that he was free to
leave—and our review should examine the totality of
each part of the interrogation. Second, I continue to
believe that trial courts, appellate courts and parties are
not served well by talismanic recitations of multifactor
tests that this and other courts have announced for
the purpose of measuring constitutional questions. The
present case is a good example.
As to the first reason why I write separately, I note
that a defendant may not be in custody at the beginning
of a police interrogation but may be determined to be
in custody as the interrogation progresses. See, e.g.,
Reinert v. Larkins, 379 F.3d 76, 79 (3d Cir. 2004) (hold-
ing that defendant, while being transported in ambu-
lance in presence of police officer, was not in custody
when he made first statement but was in custody when
he made second statement), cert. denied sub nom. Rein-
ert v. Wynder, 546 U.S. 890, 126 S. Ct. 173, 163 L. Ed.
2d 201 (2005); see also United States v. Martinez, 602
Fed. Appx. 658, 659 (9th Cir. 2015) (holding that District
Court improperly suppressed statements defendant made
to police during first minute and forty-six seconds of
interrogation because defendant was not in custody
during that time). There is no reason that the opposite
cannot be true: an interviewee may be met with circum-
stances that could constitute custody at the beginning
of an interrogation, which might progress to a point
where he might feel free to leave or he consents to
further interrogation. Thus, at times, the issue of cus-
tody might call for a statement-by-statement examina-
tion, considering the circumstances at the time of each
statement that the defendant seeks to suppress. See,
e.g., United States v. Thompson, 976 F.3d 815, 824 (8th
Cir. 2020) (determining custody based on relevant fac-
tors at time each statement was made during course of
single traffic stop); Locke v. Cattell, 476 F.3d 46, 52 (1st
Cir.) (dividing interrogation into two parts and deciding
custody for each part separately), cert. denied, 552 U.S.
873, 128 S. Ct. 177, 169 L. Ed. 2d 121 (2007).
Upon my review of the record in the present case, I
find there to be two distinct parts to the interrogation
at issue, each requiring separate examination: the first
twenty-one minutes before LaMaine advised the defen-
dant that he was not under arrest and could leave, and
the remainder of the interrogation. Neither the trial
court nor the majority makes this distinction, which,
in my opinion, is critical to the custody analysis in this
case. Specifically, I agree with the majority, for the
reasons it states, that the defendant was not in custody
during the second portion of the interrogation. I cannot
fully agree with the majority’s analysis regarding the
first part of the interrogation, however, because, in my
view, several of the factors that it considers in ‘‘the
totality of circumstances’’ have little or no relevance
to the question of custody at that time.
It is undisputed that, from the time he arrived at the
interrogation room, accompanied by Peter Bunosso,
the supervisor of the defendant’s probation officer, until
the twenty-one minute mark of the interrogation, the
defendant was given no Miranda1 warnings and was
never advised that he was free to leave or that he would
not be arrested at the end of the interrogation. During
those twenty-one minutes, in response to the officers’
questioning, the defendant indicated that he had received
a phone call from the victim on the night in question
and acknowledged that the victim had asked to meet
at a social club known as Robin’s. The defendant denied
that he went ‘‘down that way,’’ however. The defendant
then admitted that he had ‘‘most likely’’ driven a route
that took him directly past Robin’s at approximately
8:33 p.m. on the night of the murder. That admission
placed the defendant momentarily in front of Robin’s
at the approximate time of the shooting. The defendant
also acknowledged that, when he drove past Robin’s,
he knew the victim was there. The defendant continued
to maintain, however, that he ‘‘rolled down through
there’’ and did not see the victim. Although the defendant
ultimately made more inculpatory statements, both
after being told he could leave the interrogation at any
time and during his second interview at the police station,
the statements just recounted were themselves inculpa-
tory and were ultimately used against the defendant
at trial.
I consider the question of whether the defendant was
in custody during the first twenty-one minutes of the
interrogation a much closer question than whether he
was in custody during the balance of the interrogation.
In fact, I would have my doubts that the defendant was
not in custody during those first twenty-one minutes
were it not for the abundant federal case law holding
that probation status does not create the level of coer-
cion required to transform a noncustodial interrogation
into a custodial one unless the defendant’s probation
officer orders him to attend an interview with the police
or threatens that his probation would be violated if he
refused the meeting. See, e.g., Minnesota v. Murphy,
465 U.S. 420, 426, 435, 104 S. Ct. 1136, 79 L. Ed. 2d 409(1984). In light of this case law, I agree with the majority
that the defendant was not in custody during the first
twenty-one minutes of the interrogation. Specifically, I
ultimately agree with the majority that the defendant
did not sustain his burden of demonstrating that he
was ordered, directed, or threatened to report to an
interrogation. Without such evidence, and consistent
with the great weight of federal case law, I cannot
conclude that the defendant’s status as a probationer
establishes that he was in custody even before he was
advised that he was free to leave at the twenty-one
minute mark of the interrogation. In addition to the
defendant’s failure to offer any evidence that he was
threatened or ordered to attend the interrogation, I
believe the following facts, as discussed by the majority,
along with facts the defendant did not prove, demon-
strate sufficiently for me that the defendant was not
restrained to the degree associated with a formal arrest
during the first twenty-one minutes of the interrogation.
First, the defendant failed to offer any evidence that
he objected to accompanying his probation officer, Sha-
vonne Calixte, to Bunosso’s office to meet the police
officers.2 Moreover, the tone and tenor of the interroga-
tion were cordial, the defendant was not handcuffed
or physically restrained, and the police officers did not
physically threaten him, use force, or brandish their
weapons.
Nevertheless, in reaching this conclusion, I note that
I do not agree that all of the factors that the majority
addresses are relevant to determine the issue of custody
during the first twenty-one minutes of the interrogation.
This, in turn, leads to the second reason why I write
separately—to once again caution that I see danger in
our overreliance on multifactor tests for undertaking
such a ‘‘ ‘slippery’ ’’ task as measuring whether an indi-
vidual is in custody. State v. Mangual, supra, 311 Conn.
193;3 see also State v. Januszewski, 182 Conn. 142, 158,
438 A.2d 679 (1980) (‘‘[w]hat constitutes police custody
for purposes of the Miranda warnings is not always
self-evident’’) (overruled in part on other grounds by
State v. Hart, 221 Conn. 595, 605 A.2d 1366 (1992)),
cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d
1005 (1981). Although a list of factors can be useful as an
issue spotting exercise, and reviewing courts (including
this one) always note that the list is ‘‘nonexclusive,’’ in
practice, courts and litigants are inclined to use the
factors as a checklist or as a point of comparison between
the present case and cases in which a court has held
that the defendant was or was not in custody based
on particular facts. A too ‘‘heavy focus on enumerated
factors, or comparisons to other precedents, may eclipse
the ultimate inquiry before the court, which is case
specific: whether a reasonable person in the defendant’s
position would believe that there was a restraint on
[his] freedom of movement of the degree associated
with a formal arrest.’’ (Internal quotation marks omit-
ted.) State v. Castillo, 329 Conn. 311, 341, 186 A.3d 672(2018) (D’Auria, J., dissenting).
In my view, the trial court’s and the majority’s reliance
on certain of the Mangual factors illustrates not only
the limits of a multifactor test but also the need to
conduct our custody analysis on a statement-by-state-
ment basis. Rather than look at the factors truly relevant
to the circumstances at issue, both the trial court and
the majority rely heavily on a survey of all of these
factors. Although many of the factors that the majority
relies on in holding that, as a whole, the defendant
was not in custody during the entirety of the police
interrogation also weigh in favor of holding that he
failed to meet his burden of showing that he was in
custody during both the first twenty-one minutes of the
interrogation and the remainder of the interrogation,
not all factors apply to both analyses. For example, I
find the majority’s reliance on certain factors—such as
the number of times the defendant was told he was
free to leave (seven), the fact that the interview lasted
only ninety minutes and that he was ultimately not
arrested after that interview—to be irrelevant to the
question of whether he was in custody during the first
twenty-one minutes of the interrogation. I address each
of these factors in turn.
I agree with the majority that the fact that the defen-
dant was advised—and advised repeatedly—that he
was free to leave the interrogation room weighs heavily
against the defendant’s being in custody for the second
portion of the interrogation. The defendant continued
to answer questions despite being told he was free to
leave and not under arrest. But he was never told this
during the first twenty-one minutes of the interrogation.
If conditions or circumstances were such that we might
conclude that a defendant was in custody early in the
interrogation, a belated advisement that he could leave
of his own free will would not, in my view, cure the
earlier custodial circumstance. See People v. Barritt,
325 Mich. App. 556, 570, 574–75, 926 N.W.2d 811 (2018)
(holding that defendant was in custody when majority
of questioning occurred before police told defendant
he was not under arrest), appeal denied, 928 N.W.2d
224 (Mich. 2019). Thus, in my view, the officers’ belated
statements that the defendant was not under arrest and
free to leave the interrogation have no weight in our
custody determination regarding the first twenty-one
minutes of the interrogation.
Nor does the fact that the interrogation lasted ‘‘only’’
ninety minutes warrant much, if any, emphasis in ana-
lyzing whether the defendant was in custody during the
first twenty-one minutes. Although the duration of the
interrogation might, in some cases, assist a court in
determining the custody question, including whether
the interview was fleeting or lasted what anyone might
objectively consider to be a ‘‘long’’ time, this factor
seems to serve only as a comparator among reported
decisions. I submit that it is used as such because it
lends itself to an objective number, which is easy to
compare to the case at hand. ‘‘That courts and litigants
will seek to highlight or explain away certain factors,
or compare and contrast the relevant factors in one
case to those considered in another case, is a predict-
able result of court developed multifactor tests, includ-
ing the Mangual factors for measuring custody.’’ State v.
Castillo, supra, 329 Conn. 341 (D’Auria, J., dissenting).
For example, the majority concludes that this factor
does not weigh in favor of custody because this court
previously has held that a defendant was not in custody
despite a two and one-half hour interrogation. See State
v. Pinder, 250 Conn. 385, 414, 736 A.2d 857 (1999).
Because, however, a suspect in most instances does
not know when the interrogation will end and does
not know the length of other interrogations that were
determined to be custodial or noncustodial in reported
cases, we cannot credit the objectively reasonable per-
son in the defendant’s circumstances with such knowl-
edge, and, thus, this fact is of very limited use in measur-
ing whether the defendant was restrained to the degree
associated with a formal arrest. See United States v.
Griffin, 922 F.2d 1343, 1348 (8th Cir. 1990) (‘‘[t]he length
of the interrogation has been a[n] . . . undetermina-
tive factor in the analysis of custody’’). Moreover, to
the extent that this factor shows that the interrogation
at issue did not last an objectively long time as a whole,
this evidence is irrelevant to whether the defendant
was in custody during the first twenty-one minutes of
the interrogation when he had no knowledge of how
much longer the interrogation would last. Thus, this
factor plays no role in my determination of whether
the defendant has met his burden of showing that he
was in custody during the first twenty-one minutes of
the interrogation. Nevertheless, the absence of this fac-
tor does not undermine my agreement with the majority
that the defendant has failed to satisfy this burden.
Similarly, regardless of the fact that the defendant
was not told that he was free to leave or was not under
arrest during the first twenty-one minutes of the interro-
gation, the fact that he was not arrested at the end of
the interrogation adds nothing to support a determina-
tion that he was not in custody during the first twenty-
one minutes of the interrogation. Even if he is not
arrested at the end of an interrogation, a defendant has
no idea during the interrogation if he will be arrested.
The only definitive way he will know if he is under
arrest is either at the end of the interrogation, when
the police officers decide whether to arrest him, or if
he tries to leave before the interrogation is over. Even
if that were minimally relevant to whether the circum-
stances of the interrogation as a whole were akin to
an arrest,4 I fail to see how this factor shines any light
on the question of whether the circumstances of the
interrogation were akin to a formal arrest during the
first twenty-one minutes of the interrogation.
Nevertheless, I agree with the majority that the defen-
dant has not sustained his burden of proving that he was
in custody either during the first twenty-one minutes
or during the second portion of the interrogation.
Accordingly, I respectfully concur in part.
1
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2
Nevertheless, I note that I agree with the dissent in that I would not rely
on Calixte’s testimony describing how she escorted the defendant to her
supervisor’s office as in any way supporting a finding that the defendant
‘‘chose,’’ voluntarily, either to meet or remain with the officers. The issue
of whether Calixte informed the defendant that he had a choice to attend
the interrogation was hotly disputed at trial; Calixte’s testimony was at best
ambiguous on this issue, and the trial court made no findings on this issue.
The trial court, which heard her testimony, was best suited to assess her
credibility and whether her testimony was purposefully evasive. It is not
for this court to assess witness credibility or to find facts.
Both the majority and the dissent recount Calixte’s testimony at length,
and so I will not repeat it here. To the extent the majority suggests that we
may review the record as a whole, including Calixte’s testimony, and con-
clude that the defendant voluntarily chose to attend or remain in the meeting,
I disagree. The trial court did not make any findings about whether the
defendant had a ‘‘choice’’ to meet with the officers; nor did it specifically
credit Calixte’s testimony. The majority apparently considers itself free
to ‘‘review the record in its entirety to determine whether a defendant’s
constitutional rights were infringed by the denial of a motion to suppress.
State v. Kendrick, 314 Conn. 212, 218 n.6, 100 A.3d 821 (2014); see, e.g.,
State v. Fields, 265 Conn. 184, 191, 827 A.2d 690 (2003) (record on review
of ruling on pretrial motion to suppress includes evidence adduced at trial);
see also, e.g., State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986).’’
(Internal quotation marks omitted.) Footnote 4 of the majority opinion. But
this is true only for undisputed facts established in the record. See State v.
Edmonds, 323 Conn. 34, 39, 145 A.3d 861 (2016); see also State v. Castillo,
329 Conn. 311, 340, 186 A.3d 672 (2018) (D’Auria, J., dissenting).
3
One device that courts and counsel should employ to guard against
overreliance on multifactor tests is to look back to the derivation of the
test to see if it is truly applicable. Undertaking that examination in the
present case reveals that the usefulness of the Mangual factors as a whole
in these circumstances is debatable. In Mangual, this court explained that
the ten factors it listed were the result of ‘‘[a] review of . . . cases from
this state, as well as federal and sister state cases involving the interrogation
of a suspect during a police search of his residence . . . .’’ (Emphasis
added.) State v. Mangual, supra, 311 Conn. 196–97. Thus, these factors were
developed from case law addressing whether a defendant was in custody
when interrogated during a police search of his or her residence. Whether
reasonable persons in that circumstance would feel free to leave their homes,
or to tell the police to leave, is at least a somewhat different inquiry than
an inquiry into whether custodial interrogation existed at a police station
or a probation office. Less than one decade later, however, it is not clear
to me that we have given any thought to whether each Mangual factor has
any relevance to other alleged custodial circumstances or whether we have
instead transformed those factors into a test that must be applied to all
determinations of custody, regardless of the circumstances. See, e.g., State
v. Arias, 322 Conn. 170, 177–79, 140 A.3d 200 (2016) (applying Mangual
factors to determine if defendant was in custody when interrogated at police
station); State v. Garrison, 213 Conn. App. 786, 810–11, 814–27, 278 A.3d
1085 (applying Mangual factors to determine custody when defendant was
interrogated at hospital), cert. granted, 345 Conn. 959, A.3d (2022);
State v. Chankar, 173 Conn. App. 227, 237–38, 162 A.3d 756 (applying Man-
gual factors to determine custody when defendant was interrogated at
cemetery), cert. denied, 326 Conn. 914, 173 A.3d 390 (2017); State v. Cervan-
tes, 172 Conn. App. 74, 87–88, 158 A.3d 430 (applying Mangual factors to
determine custody when defendant was interrogated inside police vehicle),
cert. denied, 325 Conn. 927, 169 A.3d 231 (2017). However, some of the
Mangual factors that are clearly relevant to evaluating custody when a
defendant is interrogated inside his or her home—such as the number of
officers present for the interrogation—appear to me often to be irrelevant
when a defendant is interrogated at a police station, where, regardless of
the number of officers present for the interrogation, the defendant could
not leave without passing by numerous officers.
This further supports my caution against the use of multifactor tests.
Many of this court’s multifactor tests are simply a result of this court’s
having broadly surveyed—indeed, truly listing—the factors that have been
determinative in prior cases. State v. Geisler, 222 Conn. 672, 610 A.2d 1225(1992), is perhaps the classic example in our jurisprudence. In Geisler, in
establishing a multifactor test for claims brought under the state constitution,
we noted that, in some prior cases, one of the dispositive factors was relevant
federal precedent, but in other prior cases, one of the dispositive factors
was public policy concerns. See id., 684–85. Forever since, both federal
precedent and public policy concerns have become part of the multifactor
test, which, now, in my opinion, seems to focus more on the number of
factors satisfied than on which factors are actually relevant to the circum-
stances at issue. See Connecticut Coalition for Justice in Education Fund-
ing, Inc. v. Rell, 295 Conn. 240, 401 n.2, 990 A.2d 206 (2010) (Zarella, J.,
dissenting) (‘‘question[ing] [Geisler’s] legitimacy on the ground that it is no
more than a checklist from which to select [various interpretive] tools and
that it provides no guidance as to the significance of selecting any particular
method in any particular case’’ (internal quotation marks omitted)). Other
examples abound. See, e.g., State v. Victor O., 301 Conn. 163, 174, 20 A.3d
669 (‘‘[r]ecognizing the indefiniteness inherent in applying [the] multifactor
approach [under the test set forth in State v. Porter, 241 Conn. 57, 698 A.2d
739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645(1998)], we observed that [t]he actual operation of each factor, as is the
determination of which factors should be considered at all, depends greatly
on the specific context of each case’’ (internal quotation marks omitted)),
cert. denied, 565 U.S. 1039, 132 S. Ct. 583, 181 L. Ed. 2d 429 (2011); State
v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987) (setting forth multifactor
test for determining prejudice caused by prosecutorial impropriety after
reviewing various factors that have been dispositive in prior cases); see also
Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct. 375, 34 L. Ed. 2d 401(1972) (employing multifactor test for determining reliability of identification
despite use of suggestive procedures during confrontation procedure based
on factors that have been relevant in prior cases).
4
The majority likewise questions the relevance of this factor: ‘‘We
acknowledge the tension with placing significant weight on this factor given
that a suspect may not know at the outset of or during a particular interroga-
tion whether he will be permitted to leave at the end of the interrogation.
However, both the United States Supreme Court and this court have consid-
ered this factor in the totality of the circumstances that bear on a custody
determination. Thus, although we do not place great weight on this factor,
we nevertheless consider it in accordance with long-standing, established
precedent in this area.’’ Footnote 18 of the majority opinion; see Howes v.
Fields, 565 U.S. 499, 509, 132 S. Ct. 1181, 182 L. Ed. 2d 17 (2012).