State v. Purcell ( 2019 )

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STATE OF CONNECTICUT v. ROBERT
JOHN PURCELL
(SC 19980)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
Convicted of three counts of risk of injury to a child, the defendant appealed
to the Appellate Court, claiming, inter alia, that the trial court improperly
denied his motion to suppress certain statements that he had made
during a custodial interrogation on the ground that they were elicited
from him by the police after he invoked his right to counsel. During the
custodial interrogation, the defendant stated: ‘‘See, if my lawyer was
here . . . then . . . we could talk. That’s, you know, that’s it.’’ The
defendant also stated shortly thereafter: ‘‘I’m supposed to have my
lawyer here. You know that.’’ In denying the defendant’s motion to
suppress, the trial court concluded that those statements were not an
unambiguous invocation of his right to counsel and were susceptible
to an interpretation inconsistent with a request for counsel when viewed
in the context of the statements that preceded them. The Appellate
Court affirmed the judgments of conviction, concluding that the defen-
dant’s rights under the fifth and fourteenth amendments to the federal
constitution were not violated during the interrogation, as the defen-
dant’s references to counsel were not clear and unequivocal and would
not have been understood by a reasonable police officer as an expression
of a present desire to consult with counsel, the standard the United
States Supreme Court adopted in Davis v. United States (512 U.S. 452),
which held that, after a defendant has been informed of his rights under
Miranda v. Arizona (384 U.S. 436), the police officers conducting a
custodial interrogation have no obligation to stop and clarify a suspect’s
ambiguous invocation of his right to counsel. The Appellate Court also
rejected the defendant’s alternative, unpreserved claim that, if his state-
ments were an ambiguous invocation of his right to counsel, the self-
incrimination and the due process clauses of article first, § 8, of the
Connecticut constitution required the officers to cease questioning
immediately and to clarify that ambiguity. On the granting of certifica-
tion, the defendant appealed to this court. Held:
1. The Appellate Court correctly determined that the defendant’s statements
did not constitute, under the standard set forth in Davis, an invocation
of the right to counsel that would have required the police officers
to cease the interrogation: the defendant’s statements could not be
considered a clear and unequivocal invocation of the right to counsel,
as the defendant’s first statement, ‘‘if my lawyer was here,’’ was
expressed in conditional terms, about a matter over which the defendant
was given control, the defendant’s second statement regarding what he
was ‘‘supposed to’’ do referred to the expectations of another person,
most likely his attorney, and those statements could have been interpre-
ted as an effort to explain that his hesitation to speak about the allega-
tions against him reflected his attorney’s advice rather than his own
preferences; moreover, the phrase, ‘‘[y]ou know that,’’ added to the
ambiguity, as the officers, by virtue of their dialogue with the defendant
during the interrogation, knew that the defendant had the right to have
counsel present but also knew, based on the defendant’s statements,
that the defendant had previously been advised by counsel not to discuss
the allegations.
2. The defendant’s rights under article first, § 8, of the Connecticut constitu-
tion were violated when the police officers continued to question him
after he ambiguously invoked his right to have counsel present without
any attempt to clarify his request, the failure to clarify was harmful,
and, accordingly, the Appellate Court’s judgment was reversed and the
case was remanded for a new trial: this court employed the multifactor
approach that it first adopted in State v. Geisler (222 Conn. 672) and
considered the text of the relevant state and federal constitutional provi-
sions, relevant Connecticut, federal and sister state precedent, and this
state’s public policies concerning the protection of a suspect in a coer-
cive interrogation environment in concluding that the standard in Davis
did not adequately safeguard a suspect’s right to counsel and that policy
considerations supported a more protective rule that requires police
officers conducting an interrogation to stop and clarify a suspect’s ambig-
uous or equivocal request for counsel; accordingly, this court concluded,
consistent with its prior precedent and the majority rule that governed
prior to Davis, that article first, § 8, requires that, if a suspect makes
an equivocal statement that arguably can be construed as a request for
counsel, interrogation must cease except for narrow questions designed
to clarify the earlier statement and the suspect’s desire for counsel, or,
alternatively, the officers conducting the interrogation may inform the
suspect that they understand the suspect’s statement to mean that he
does not wish to speak with them without counsel and that they will
terminate the interrogation, and, in either case, if the suspect thereafter
clearly and unequivocally expresses a desire to continue without counsel
present, the interrogation may resume; moreover, the state could not
prevail on its claim that suppression was not an appropriate sanction on
the basis that the police conducted themselves in objectively reasonable
reliance on binding judicial precedent, and there was no claim that the
statements were involuntary or untrustworthy, because, although, prior
to the court’s decision in this case, it was an open question whether
this court would require the more protective stop and clarify rule under
the state constitution, a good faith exception to suppression was incom-
patible with this court’s case law, and this court rejected the state’s
additional claim that the police substantially complied with the stop
and clarify rule under the circumstances.
Argued September 20, 2018—officially released March 29, 2019*
Procedural History
Substitute information charging the defendant, in
three cases, with four counts of the crime of risk of
injury to a child, two counts of the crime of sexual
assault in the second degree and one count of the crime
of sexual assault in the first degree, brought to the
Superior Court in the judicial district of New Haven,
where the court, O’Keefe, J., denied the defendant’s
motion to suppress certain evidence; thereafter, the
cases were tried to the jury; verdicts and judgments of
guilty of three counts of risk of injury to a child, from
which the defendant appealed to the Appellate Court,
Alvord, Keller and Dennis, Js., which affirmed the judg-
ments of the trial court, and the defendant, on the grant-
ing of certification, appealed to this court. Reversed;
new trial.
Richard Emanuel, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom were Seth R. Garbarsky, senior assistant state’s
attorney, and, on the brief, Patrick J. Griffin, state’s
attorney, for the appellee (state).
Opinion
McDONALD, J. In Davis v. United States, 512 U.S.
452, 459–60, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994),
the United States Supreme Court determined that, after
a defendant has been informed of his Miranda rights,1
the police officers conducting a custodial interrogation
have no obligation to stop and clarify an ambiguous
invocation by the defendant of his right to have counsel
present. Instead, they must cease interrogation only
upon an objectively unambiguous, unequivocal invoca-
tion of that right. See id. The court recognized that this
standard ‘‘might disadvantage some suspects who—
because of fear, intimidation, lack of linguistic skills,
or a variety of other reasons—will not clearly articulate
their right to counsel although they actually want to
have a lawyer present.’’ Id., 460.
This certified appeal requires us to decide whether
the Davis standard was met in this case, and, if not,
whether a more protective prophylactic rule is required
under the Connecticut constitution. The defendant,
Robert John Purcell, appeals from the Appellate Court’s
judgment affirming his conviction of three counts of
risk of injury to a child in violation of General Statutes
§ 53-21. See State v. Purcell, 174 Conn. App. 401, 405,
440, 166 A.3d 883 (2017). We conclude that the defen-
dant’s statements during interrogation did not meet
Davis’ ‘‘clear and unequivocal’’ standard so as to require
suppression of subsequent inculpatory statements
under the federal constitution. We further conclude,
however, that the Connecticut constitution does not
condone a rule that could disadvantage the most vulner-
able of our citizens. We hold that, to adequately safe-
guard the right against compelled self-incrimination
under article first, § 8, of the Connecticut constitution,2
police officers are required to clarify an ambiguous
request for counsel before they can continue the interro-
gation. Because no such clarification was elicited in
the present case and the failure to do so was harmful,
we conclude that the defendant is entitled to a new trial.
The record reveals the following undisputed facts
and procedural history. The complainant (victim)3 is
the nephew of the defendant by marriage. In September,
2013, the victim’s mother found pictures on the victim’s
Nintendo DS game console that concerned her, includ-
ing pictures of the clothed stomachs of the defendant
and the victim’s father and two pictures of circumcised
penises.4 She deleted the pictures and asked her hus-
band to speak to the victim. The victim’s father spoke
to him about the Catholic Church’s teachings about
sexuality, which prompted the victim to acknowledge
that he had had thoughts about boys but to assert that
it was not his fault. He then stated that the defendant
‘‘has been having sex with me.’’ The victim’s parents
reported the allegation to the police.
The victim had made a similar statement concerning
the defendant to a school social worker, who reported
the allegation to the Department of Children and Fami-
lies. In subsequent interviews, the victim described sev-
eral incidents that he claimed had occurred between
2010, when he was twelve years old, and 2013. The
incidents were reported to have occurred in public
restrooms and at the defendant’s home. The incidents
were said to include inappropriate touching and sex-
ual acts.
In October, 2013, the defendant agreed to come to the
Wallingford Police Department to discuss a complaint
made against him, but he was not made aware of the
nature of the allegations prior to arriving. Detective
Michael Zerella and another Wallingford police officer
conducted the interview. When it became apparent to
the defendant that he was being accused of engaging
in sexually inappropriate conduct with his nephew, the
defendant explained incidents that he could think of
that served as the basis of the complaint but maintained
that nothing inappropriate had happened. Zerella won-
dered aloud whether the defendant was ‘‘a sick, per-
verted person or, or stuff, stuff accidentally happened.’’
Not long after this comment, the defendant announced
that things were getting ‘‘a little bit too strange,’’ and
he terminated the interview.
On November 26, 2013, the defendant was arrested
pursuant to the first of three warrants and charged with
multiple counts of both sexual assault, first and second
degree, and risk of injury to a child.5 Later that day,
Zerella and Wallingford Detective Sean Fairbrother con-
ducted the custodial interrogation that gives rise to the
issues in this certified appeal.
The Appellate Court’s opinion accurately recounts
the following facts relating to that interrogation. ‘‘Zer-
ella began the interview by reading the defendant his
Miranda rights and asking him to complete a Miranda
waiver form. The defendant asked: ‘I can still, after,
after, after I initial that, I can still stop answering then?’
Zerella replied: ‘Oh, anytime you want. No problem.’
‘‘After the defendant completed the Miranda waiver
form, Zerella asked the defendant whether he knew
why he had been arrested. The defendant explained
that he had received a letter from the Department of
Children and Families (department) informing him that
he was being investigated for allegations of child abuse
with respect to the victim. When Zerella asked what he
discussed with the department, the defendant stated
that he had never talked to anyone from the department.
Zerella asked why, and the defendant explained: ‘Well,
I asked my lawyer, and he said, well, just not to, I, I
think that’s, I think that’s all together wrong, but that’s
what he said.’ He went on to elaborate that ‘my lawyer
knows what’s going on, you know? But, he says don’t
talk, I don’t talk.’ When Zerella asked him how he felt
about that, the defendant stated: ‘Well, it’s like I said,
I probably wouldn’t be here now if I talked to them.’
Zerella suggested that if he had elaborated more and
been more forthcoming during the first interview, they
might not be here. After some discussion about whether
and why Zerella called him a pervert during the first
interview, Zerella stated: ‘Okay, well, we could, we
could go on about the last interview if you want to,
but—’ The defendant interjected: ‘—I know, I know
. . . let’s . . . let’s go on right, what, what more do
you want to know?’
‘‘After . . . [Zerella explained] that a judge and [a]
prosecutor had found probable cause to arrest him, the
defendant observed that it was because ‘I didn’t talk,
that’s why.’ Zerella remarked: ‘Well, you did, you did
talk to me. You did tell me a few things.’ The defendant
agreed but acknowledged, ‘not enough, I know.’ . . .
When Zerella asked the defendant to tell him some
of the stories of his encounters with the victim, the
defendant opined: ‘I don’t know the stories that he
made up.’
‘‘Fairbrother asked the defendant whether he knew
the crime with which he was charged, and the defendant
replied child abuse. Fairbrother explained that he was
charged with sexual assault and risk of injury to a child.
The defendant asked whether that means that the alle-
gation is that he did something sexual with the victim,
and Fairbrother said that it did. The defendant ada-
mantly denied having sexual relations with the victim.
When the detectives pressed him about whether there
were any moments that could be misconstrued as inap-
propriate, the defendant responded: ‘Well, yes, there’s
what, well, I, I, my lawyer said not to talk about it but,
no . . . .’ The detectives [responded, ‘We’ll leave it up
to you’ and ‘Well, it’s up to you’].
‘‘The defendant observed that Zerella had told him
that there was a picture of him naked on the victim’s
Nintendo DS during the first interview,6 and he asked
repeatedly whether the picture actually existed. When
Zerella suggested that the defendant had personal
knowledge that the picture existed, the defendant
insisted that he did not and that he knew about the
picture only because Zerella told him about it during
the first interview. Zerella maintained that ‘there’s
other, other things, there’s other instances beside that,’
and, after the defendant asked what, Zerella observed
that ‘you just said, there [is] stuff but my lawyer told
me not to talk about it.’ The defendant stated that he
was referring to the picture. He further asked, ‘what
else is there,’ and opined that he wanted to know ‘what
they are pressing against me.’ Thereafter, the following
exchange occurred:
‘‘ ‘[Zerella]: Alls I got to say is, tomorrow, when you
go in to court, you’re gonna look at a judge and a
prosecutor. . . . And they’re gonna look at all this
stuff, all these allegations that were made against you.
. . . That it’s a, it’s a very, very strong case against you.
Very, very strong. They’re gonna look at it and say,
listen, this, this man, because they don’t know you from
Adam, but they’re just gonna see you.
‘‘ ‘[The Defendant]: Right. Well, they’re gonna know
my name.
‘‘ ‘[Zerella]: As, as a, as a, as a mean, as a mean indi-
vidual.
‘‘ ‘[The Defendant]: Right.
‘‘ ‘[Zerella]: In, in reality—
‘‘ ‘[Fairbrother]: As a predator.
‘‘ ‘[Zerella]: As a predator, who, who’s technically not
cooperating and not saying, yeah, this is, this is what
happened, this is probably why he thinks, thinks the
way he does or—
‘‘ ‘[The Defendant]: —See, if my lawyer was here,
I’d, then I’d, we could talk. That’s, you know, that’s it.
‘‘ ‘[Zerella]: It’s up to you. You could—
‘‘ ‘[The Defendant]: —I know it. I know, I know, I
know it.
‘‘ ‘[Zerella]: You could . . . (a) talk to me or you
could (b) not talk to me.
‘‘ ‘[The Defendant]: I know it but, I’m trying, you know
I, I’m supposed to have my lawyer here. You know that.
‘‘ ‘[Zerella]: You don’t, you don’t have to, it’s, it’s—
‘‘ ‘[Fairbrother]: It’s up to you.
‘‘ ‘[Zerella]: It’s up to you, man. Some people talk to
me without one, some people want one . . . it’s all up
to you, man . . . I’m just affording you that opportu-
nity, that’s all.
‘‘ ‘[Fairbrother]: The problem is that, at your age, you
don’t want to go to prison.
‘‘ ‘[The Defendant]: [indiscernible]
‘‘ ‘[Fairbrother]: Okay? You don’t want to go to prison.
If there was some inappropriate things with this child,
something that can be explained, maybe you helped
him go to the bathroom, maybe, you know, he makes
some sort of crazy allegation or does some sort of
craziness, he’s not—
‘‘ ‘[Zerella]: —Maybe he—
‘‘ ‘[Fairbrother]: He doesn’t have a hundred percent
capacity.7 If you’re in a, now, now is the time to talk
about it, now is [the time] to get your half out there.
‘‘ ‘[Zerella]: Yeah, maybe he came at you.
‘‘ ‘[Fairbrother]: —You know if—
‘‘ ‘[Zerella]: Maybe he came at you.
‘‘ ‘[Fairbrother]: You know, that, that’s all we’re offer-
ing you, the opportunity to, because it’s the last time
we’re gonna be able to talk.
‘‘ ‘[Zerella]: That’s all.
‘‘ ‘[Fairbrother]: You know, that’s all, and, and, you
know, if—
‘‘ ‘[The Defendant]: —Oh, geez, I don’t know—
‘‘ ‘[Fairbrother]: —If you want to have an attorney—
‘‘ ‘[The Defendant]: —I, I don’t think it’s—
‘‘ ‘[Fairbrother]: —That’s fine. You can, but—
‘‘ ‘[The Defendant]: —that’s right, right or wrong, but,
uh, real, really.
‘‘ ‘[Zerella]: Just, just affording you the opportunity,
sir, because after, after today, you’re never gonna be
able to, to give me or any other cop your story. You’re
gonna let, a judge is gonna look at ya and say, some
serious charges against you. You could go to jail for
the rest of your life.
‘‘ ‘[The Defendant]: All right, now what’s, what, what,
what, uh, all right, I’ll, I’ll, I’ll talk. Uh, what do you,
what do you, what do you want to know? Tell, tell me,
what do you want to know?’’ (Emphasis in original;
footnotes added.) State v. Purcell, supra, 174 Conn.
App. 418–23.
Thereafter, the custodial interrogation continued
without further mention of counsel. Although the defen-
dant did not admit to any of the acts alleged, he made
statements that were used against him at trial.
During trial, the defendant moved to suppress certain
statements that he had made during the interrogation,
claiming that they had been elicited after he invoked
his right to have counsel present. The trial court con-
cluded that the defendant had not invoked his right
to counsel in an unambiguous manner, because the
statements were susceptible to another reasonable
interpretation when viewed in context of the statements
preceding them. Noting that ‘‘close is not good enough,’’
the court denied the motion.
Following a jury trial, the defendant was convicted
of three counts of risk of injury to a child—one count
in violation of § 53-21 (a) (1) and two counts in violation
of § 53-21 (a) (2).8 The defendant was acquitted of four
other counts—one count of sexual assault in the first
degree, two counts of sexual assault in the second
degree, and one count of risk of injury to a child. The
trial court rendered judgments in accordance with the
verdicts, imposing a total effective sentence of sixteen
years imprisonment, execution suspended after nine
years, and ten years probation. The defendant appealed
from the trial court’s judgments, challenging, among
other things, the court’s denial of his motion to
suppress.
The Appellate Court affirmed the judgments of con-
viction. See id., 405, 440. The court concluded that the
trial court properly denied the motion to suppress
because the defendant’s rights under the fifth and four-
teenth amendments to the federal constitution were not
violated during the interrogation. It reasoned that the
defendant’s references to counsel would not have been
understood by a reasonable police officer as an expres-
sion of a present desire to consult with counsel. Id.,
425–27. The court also rejected the defendant’s alterna-
tive, unpreserved claim that, if his statements were an
ambiguous invocation of his right to counsel, the self-
incrimination and due process clauses of article first,
§ 8, of the Connecticut constitution required the officers
to cease questioning immediately and to clarify that
ambiguity. Id., 427–40; see State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989) (prescribing require-
ments to obtain review and to prevail on unpreserved
constitutional claim); see also In re Yasiel, 317 Conn.
773, 781, 120 A.3d 1188 (2015) (modifying third prong
of Golding). Nonetheless, the Appellate Court admon-
ished law enforcement that the better practice is to
clarify such issues at the time of interrogation rather
than in after-the-fact arguments before the courts. State
v. Purcell, supra, 174 Conn. App. 428, 440. The defen-
dant’s certified appeal to this court followed.9
I
We begin with the line of United States Supreme
Court cases that provide the framework for the issues
in this appeal. In Davis, the court acknowledged that its
precedent had established the following foundational
principles: ‘‘The [s]ixth [a]mendment right to counsel
attaches only at the initiation of adversary criminal
proceedings . . . and before proceedings are initiated
a suspect in a criminal investigation has no constitu-
tional right to the assistance of counsel. Nevertheless,
we held in Miranda v. Arizona, 384 U.S. 436, 469–73
[86 S. Ct. 1602, 16 L. Ed. 2d 694] (1966), that a suspect
subject to custodial interrogation has the right to con-
sult with an attorney and to have counsel present during
questioning, and that the police must explain this right
to him before questioning begins. The right to counsel
established in Miranda was one of a series of recom-
mended procedural safeguards . . . [that] were not
themselves rights protected by the [c]onstitution but
were instead measures to [e]nsure that the right against
compulsory self-incrimination was protected. Michi-
gan v. Tucker, 417 U.S. 433, 443–44 [94 S. Ct. 2357, 41
L. Ed. 2d 182] (1974); see U.S. Const., [amend. V] ([n]o
person . . . shall be compelled in any criminal case to
be a witness against himself).
‘‘The right to counsel recognized in Miranda is suffi-
ciently important to suspects in criminal investigations,
we have held, that it requir[es] the special protection
of the knowing and intelligent waiver standard.
Edwards v. Arizona, [451 U.S. 477, 483, 101 S. Ct. 1880,
68 L. Ed. 2d 378 (1981)]. . . . If the suspect effectively
waives his right to counsel after receiving the Miranda
warnings, law enforcement officers are free to question
him. . . . But if a suspect requests counsel at any time
during the interview, he is not subject to further ques-
tioning until a lawyer has been made available or the
suspect himself reinitiates conversation. [Id., 484–85].
This second layer of prophylaxis for the Miranda right
to counsel, McNeil v. Wisconsin, 501 U.S. 171, 176 [111
S. Ct. 2204, 115 L. Ed. 2d 158] (1991), is designed to
prevent police from badgering a defendant into waiving
his previously asserted Miranda rights, Michigan v.
Harvey, 494 U.S. 344, 350 [110 S. Ct. 1176, 108 L. Ed.
2d 293] (1990). To that end, we have held that a suspect
who has invoked the right to counsel cannot be ques-
tioned regarding any offense unless an attorney is actu-
ally present. Minnick v. Mississippi, 498 U.S. 146 [111
S. Ct. 486, 112 L. Ed. 2d 489] (1990); Arizona v. Rober-
son, 486 U.S. 675 [108 S. Ct. 2093, 100 L. Ed. 2d 704]
(1988). It remains clear, however, that this prohibition
on further questioning—like other aspects of
Miranda—is not itself required by the [f]ifth [a]mend-
ment’s prohibition on coerced confessions, but is
instead justified only by reference to its prophylactic
purpose. Connecticut v. Barrett, [479 U.S. 523, 528, 107
S. Ct. 828, 93 L. Ed. 2d 920 (1987)].’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Davis v. United States, supra, 512 U.S. 456–58.
With regard to how a defendant may invoke this right,
in Miranda v. Arizona, supra, 384 U.S. 444–45, the
Supreme Court stated that if a defendant ‘‘indicates in
any manner and at any stage of the process that he
wishes to consult with an attorney before speaking
there can be no questioning.’’ (Emphasis added.) In
Edwards v. Arizona, supra, 451 U.S. 484–85, the court
referred to the requisite act by the defendant as ‘‘having
expressed his desire to deal with the police only through
counsel,’’ and as having ‘‘clearly asserted his right to
counsel . . . .’’ The court subsequently noted that the
invocation of the Miranda right to counsel ‘‘requires,
at a minimum, some statement that can reasonably be
construed to be an expression of a desire for the assis-
tance of an attorney . . . .’’ McNeil v. Wisconsin,
supra, 501 U.S. 178.
Applying this precedent prior to the Supreme Court’s
1994 Davis decision, the lower courts were divided on
how to treat an ambiguous invocation of this right.
Three approaches emerged: one required the immediate
cessation of interrogation; one permitted questions lim-
ited to clarifying whether the defendant intended to
invoke this right; and one permitted interrogation to
continue unless a sufficiently clear invocation of the
right was made. The second approach—stop and clar-
ify—was adopted by the majority of the many courts
to consider the issue. See Davis v. United States, supra,
512 U.S. 466 and n.1 (Souter, J., concurring); see also
J. Ainsworth, ‘‘In a Different Register: The Pragmatics
of Powerlessness in Police Interrogation,’’ 103 Yale L.J.
259, 308 and n.254 (1993) (listing cases); S. Goings,
comment, ‘‘Ambiguous or Equivocal Requests for Coun-
sel in Custodial Interrogations After Davis v. United
States,’’ 81 Iowa L. Rev. 161, 162 n.7 (1995) (same). The
Supreme Court acknowledged this divide; see Connect-
icut v. Barrett, supra, 479 U.S. 529–30 n.3; Smith v.
Illinois, 469 U.S. 91, 96 and n.3, 105 S. Ct. 490, 83 L.
Ed. 2d 488 (1984); but found it unnecessary to weigh
in until Davis.
In Davis, the petitioner waived his rights to remain
silent and to counsel in a military legal proceeding. See
Davis v. United States, supra, 512 U.S. 454–55. More
than one hour into the interview, the petitioner stated,
‘‘ ‘Maybe I should talk to a lawyer.’ ’’ Id., 455. The inter-
viewing agents then explained that if the petitioner
wanted a lawyer, they would stop questioning him,
unless he clarified whether he was asking for a lawyer
or was just making a comment about a lawyer. Id. In
response, the petitioner stated, ‘‘No, I’m not asking for a
lawyer,’’ and then, ‘‘No, I don’t want a lawyer.’’ (Internal
quotation marks omitted.) Id. The interview recom-
menced, but later the petitioner stated, ‘‘I think I want
a lawyer before I say anything else.’’ (Internal quotation
marks omitted.) Id. The agents terminated the interview
at that point. Id. The United States Court of Military
Appeals held that the petitioner’s statement, ‘‘ ‘Maybe
I should talk to a lawyer,’ ’’ was an ambiguous invoca-
tion of the right to counsel, and that the agents properly
clarified the petitioner’s wishes before proceeding fur-
ther. Id., 456.
On appeal to the United States Supreme Court, the
petitioner contended that an ambiguous invocation is
sufficient to invoke Edwards’ prohibition on further
questioning, even for purposes of clarification. The
court unanimously held that the judgment should be
affirmed, but split five to four as to the effect of an
ambiguous invocation under the court’s precedent. The
majority held that, ‘‘if a suspect makes a reference to
an attorney that is ambiguous or equivocal in that a
reasonable officer in light of the circumstances would
have understood only that the suspect might be invok-
ing the right to counsel, our precedents do not require
the cessation of questioning. . . . Rather, the suspect
must unambiguously request counsel. . . . Although a
suspect need not speak with the discrimination of an
Oxford don . . . he must articulate his desire to have
counsel present sufficiently clearly that a reasonable
police officer in the circumstances would understand
the statement to be a request for an attorney. If the
statement fails to meet the requisite level of clarity,
Edwards does not require that the officers stop ques-
tioning the suspect.’’10 (Citations omitted; emphasis in
original; internal quotation marks omitted.) Id., 459.
Applying this rule, the majority concluded that the
remark, ‘‘ ‘Maybe I should talk to a lawyer’ . . . [i]s
not a request for counsel . . . .’’ Id., 462. The view of
the four concurring justices, which we address in fur-
ther detail in part III of this opinion, was that the court’s
precedent of many decades supported the stop and
clarify rule applied by the Court of Military Appeals.
See id., 466–67 (Souter, J., concurring).
II
The first certified issue requires us to determine
whether the defendant’s statements during the interro-
gation constituted an invocation of his right to counsel
under Davis.11 The defendant contends that two state-
ments—‘‘See, if my lawyer was here . . . then . . .
we could talk. That’s, you know, that’s it.’’ And ‘‘I’m
supposed to have my lawyer here. You know that.’’—
are similar to, and have the same degree of clarity as,
statements that other courts have deemed to meet
Davis’ standard. We disagree.
Since Davis, a clear, unequivocal invocation of the
right to counsel has been found, even after a defendant
has waived that right and cooperated to varying degrees
with the interrogation, when a defendant has made an
affirmative statement of present intent such as the fol-
lowing: ‘‘ ‘Lawyer’ ’’ and ‘‘ ‘lawyer, this, this is done’ ’’;
United States v. Monroe, 264 F. Supp. 3d 376, 388 (D.R.I.
2017); ‘‘ ‘right now, what I need to do is sit down and
talk to a lawyer first’ ’’; Sykes v. State, 357 S.W.3d 882,
890 (Ark. 2009); ‘‘ ‘I answered some questions, but this
has affected me, I don’t want it to affect me more. What
I am saying now is another question; I would need
someone to advise me. . . . More questions for me?
Well, I would like to, but I need someone to advise
me’ ’’; Jimenez v. State, 379 S.W.3d 762, 765 (Ark. App.
2010), review denied, Arkansas Supreme Court, Docket
No. CR10-1298 (January 27, 2011); ‘‘ ‘I’m done talking
to you. Go get my lawyer’ ’’; Jennings v. United States,
989 A.2d 1106, 1112 (D.C. 2010); Jennings v. United
States, supra, 1112–13 (statements met objective test
even if tone might subjectively be viewed as sarcastic);
‘‘ ‘I’d like to have an attorney present during ques-
tioning’ ’’; Green v. State, 69 So. 3d 351, 352 (Fla. App.
2011); ‘‘ ‘[T]his is where I want my lawyer’ ’’ and
‘‘ ‘[o]kay, this is where I would want my attorney
involved’ ’’; State v. Person, 140 Idaho 934, 941, 104 P.3d
976 (App. 2004), review denied, Idaho Supreme Court,
Docket No. 29517 (December 20, 2004); ‘‘ ‘I’m in a situa-
tion where I feel like . . . I really need an attorney to
. . . talk with, and for me’ ’’; Carr v. State, 934 N.E.2d
1096, 1105 (Ind. 2010); ‘‘ ‘[N]o lawyer, can’t talk’ ’’ and
‘‘ ‘I can’t talk without my lawyer’ ’’; State v. Poullard,
863 So. 2d 702, 711 (La. App. 2003), writ denied sub
nom. State ex rel. Poullard v. State, 896 So. 2d 995
(La. 2005).
When statements regarding the assistance or pres-
ence of counsel include one or more conditional or
hedging terms, such as if, should, probably, or maybe,
courts generally have deemed them ambiguous or equiv-
ocal. See, e.g., United States v. Doe, 60 F.3d 544, 546
(9th Cir. 1995) (statement by defendant’s mother that
‘‘ ‘maybe he ought to see an attorney’ ’’ was not clear,
unambiguous request for counsel); People v. Sauceda-
Contreras, 55 Cal. 4th 203, 219, 282 P.3d 279, 145 Cal.
Rprt. 3d 271 (2012) (defendant’s statement, ‘‘ ‘[i]f you
can bring me a lawyer, that way . . . I can tell you
everything that I know and everything that I need to tell
you and someone to represent me,’ ’’ was conditional,
ambiguous, and equivocal); People v. Gonzalez, 34 Cal.
4th 1111, 1119, 1126, 104 P.3d 98, 23 Cal. Rptr. 3d 295
(statements by defendant–‘‘ ‘That um, one thing I want
to ask you to that, if for anything you guys are going
to charge me I want to talk to a public defender too,
for any little thing. Because my brother-in-law told me
that if they’re trying to charge you for this case you
might as well talk to a public defender and let him know
cause they can’t [untranslatable]’ ’’—were insufficient),
cert. denied, 545 U.S. 1108, 125 S. Ct. 2552, 162 L. Ed.
2d 282 (2005); People v. Shamblin, 236 Cal. App. 4th
1, 20, 186 Cal. Rptr. 3d 257 (2015) (The ‘‘defendant’s
statement—‘I think I probably should change my mind
about the lawyer now. . . . I think I need some advice
here’—contains language that is conditional [‘should’]
and equivocal [‘I think’ and ‘probably’].12 . . . [T]hese
ambiguous qualifying words convey to a reasonable
officer only that defendant might want to invoke his
right to counsel, not that he is unambiguously express-
ing his desire to terminate the interview.’’ [Footnote
added.]), review denied, California Supreme Court,
Docket No. S226608 (July 29, 2015); State v. Morgan, 559
N.W.2d 603, 608 (Iowa 1997) (statement that defendant
‘‘ ‘might need a lawyer’ ’’ was insufficient in light of
Davis); State v. Chesson, 856 So. 2d 166, 173–75 (La.
App. 2003) (statement to police officers while being
transported that ‘‘he might—he felt like he should talk
to an attorney’’ was equivocal and ambiguous), writ
denied, 867 So. 2d 686 (La. 2004); Commonwealth v.
Molina, 81 Mass. App. 855, 863, 867, 969 N.E.2d 738
(2012) (The defendant’s statements—‘‘ ‘truly, if I had
known that this would be like this, I honestly would
have brought an attorney because I truly don’t even
know what has happened; I haven’t been informed of
what has happened and I am being questioned about,
really, I mean, it’s like my rights are being violated
because I am being questioned on something that I
truly don’t know’ ’’—were ambiguous. ‘‘Although [the
defendant] mentioned an attorney, he did not request
one going forward. He said that he would have brought
an attorney.’’), aff’d, 467 Mass. 65, 3 N.E.3d 583 (2014);
Davis v. State, 313 S.W.3d 317, 341 (Tex. Crim. App.
2010) (statement, ‘‘ ‘I should have an attorney,’ ’’ was
ambiguous because ‘‘ ‘should’ could simply mean that
[the] appellant believed having an attorney was in his
best interests’’), cert. denied, 565 U.S. 828, 132 S. Ct.
122, 181 L. Ed. 2d 45 (2011).
Statements referring to counsel’s advice that the
defendant not speak to the police, if made after the
defendant has agreed to waive his right to counsel, also
have been deemed not to be an unambiguous invocation
of the right to have counsel present. Compare People
v. Thompson, 50 Cal. 3d 134, 165, 785 P.2d 857, 785 Cal.
Rptr. 309 (defendant’s statements—‘‘ ‘I don’t even think
I should be talking now. . . . [My public defender told
me] not to say nothin’ about the case or anything, unless
I had a lawyer present. . . . And I agreed with him’ ’’
and ‘‘ ‘[y]ou know, and, like I’m just going to go with
what, you know, what the lawyer said because I . . . .
What else can I say, well, really. I don’t want to see [my
girlfriend] here [in jail]’ ’’—were not even an equivocal
assertion of right to counsel, but only an explanation
of why he was willing to proceed without counsel),
cert. denied, 498 U.S. 881, 111 S. Ct. 226, 112 L. Ed. 2d
180 (1990), and State v. Long, 190 Wis. 2d 386, 397,
526 N.W.2d 826 (App. 1994) (‘‘ ‘My attorney told me I
shouldn’t talk unless he is here,’ was not a clear asser-
tion of [the defendant’s] desire to have counsel present.
Rather, it was an indication of what [his] attorney told
him not to do.’’), with United States v. Cheely, 36 F.3d
1439, 1448 (9th Cir. 1994) (defendant’s statement that
‘‘ ‘my attorney does not want me to talk to you,’ ’’ in
tandem with refusal to sign written waiver of right to
attorney form, was unambiguous request for counsel),
and Lucas v. State, 273 Ga. 88, 90, 538 S.E.2d 44 (2000)
(defendant’s statements prior to provision of Miranda
rights—‘‘ ‘[M]y lawyer told me, the one I talked to, not
to say nothing’ ’’ and ‘‘ ‘[m]y attorney told me not to
answer nothing’ ’’—plainly demonstrated defendant’s
concern about being questioned without benefit of
counsel, and reasonable police officer would have
understood statements to be request for counsel to be
present during questioning).13
Statements that could be interpreted as an expression
of the defendant’s reservation about whether speaking
to the police without counsel is in his best interest also
have been deemed not to express a clear, unequivocal
invocation of the right to have counsel present. See,
e.g., Sykes v. State, supra, 357 S.W.3d 891 (defendant’s
statements—‘‘ ‘I don’t feel like that I need to be dis-
cussing this at all,’ ‘I think it’s really plumb ignorant to
answer any questions right now,’ ’’ and ‘‘ ‘the best thing
I can do is, for myself, is to shut the hell up and not
talk about this without first talking to a lawyer’ ’’—did
not unambiguously and unequivocally indicate right to
remain silent or right to counsel when defendant evi-
denced awareness of his Miranda rights and continued
to talk to officer even though he knew it was against
his best interest); Midkiff v. Commonwealth, 250 Va.
262, 267, 462 S.E.2d 112 (1995) (defendant’s ‘‘statement,
‘I’m scared to say anything without talking to a lawyer,’
expresses [the defendant’s] reservation about the wis-
dom of continuing the interrogation without consulting
a lawyer; however, it does not clearly and unambigu-
ously communicate a desire to invoke his right to
counsel’’).
With this background in mind, we turn to the state-
ments in the present case on which the defendant relies.
See State v. Anonymous, 240 Conn. 708, 723, 694 A.2d
766 (1997) (whether defendant invoked right to counsel
is question of law, reviewed de novo). We agree with
the defendant that a police officer reasonably could
interpret his statements as an invocation of his right to
counsel. More specifically, his statements reasonably
could be interpreted as a request to have his attorney
present if the officers wanted him to discuss the specific
incidents giving rise to the charges. A defendant may
make a limited invocation of the right to counsel. See
Connecticut v. Barrett, supra, 479 U.S. 529 (concluding
that court could give effect to both defendant’s unam-
biguous expression of desire to have counsel present
before making written statement and unambiguous
waiver of rights to remain silent and to have counsel
present for oral statement).
However, the statements also are reasonably amena-
ble to a different interpretation. The defendant’s first
statement, ‘‘if my lawyer was here,’’ is expressed in
conditional terms, about a matter over which the defen-
dant was given control. The defendant’s second state-
ment refers to what he is ‘‘supposed to’’ do, which refers
to the expectations of another, most likely his attorney.
The existence of such expectations would be consistent
with the defendant’s preceding remarks. In those
remarks, the defendant explained that he had declined
to speak with the Department of Children and Families
about the allegations only on his attorney’s advice, even
though the defendant himself believed that his interests
would have been better served had he spoken to the
department. As such, the statements on which the
defendant relies to establish his invocation of his right
to counsel reasonably could be interpreted as an effort
to explain that his hesitation to speak about the allega-
tions reflected his attorney’s advice rather than his own
preferences. Cf. Commonwealth v. Molina, supra, 81
Mass. App. 867 (‘‘[t]he passage reads as though the
defendant was using the specter of his rights as a way
to control the interview: not asserting the rights, but
mentioning them in order to avoid specific questions
that he did not want to answer’’); State v. Long, supra,
190 Wis. 2d 397 (statement that defendant’s attorney
told him not to talk unless attorney was present was
not clear assertion of defendant’s desire to have counsel
present but indication of his attorney’s advice). The
officers’ response can be seen as consistent with that
interpretation, insofar as they underscored that it was
up to the defendant, not his attorney, to decide whether
he would answer their questions.14
The final phrase spoken by the defendant in this
connection—’’You know that’’—added to the ambigu-
ity. The officers undoubtedly knew that the defendant
had a right to have counsel present. But they also knew,
based on the defendant’s statements, that the defendant
previously had been advised by counsel not to discuss
the incidents in question. Accordingly, because the
statements at issue cannot be considered a clear and
unequivocal invocation of his right to counsel, we con-
clude that the Appellate Court properly determined that
the defendant’s statements were not the type of expres-
sion necessary under Davis to require interrogation
to cease.
III
We therefore turn to the second certified question,
which requires us to decide whether the Appellate Court
properly determined that article first, § 8, of the Con-
necticut constitution does not require the police to stop
and clarify an ambiguous or equivocal request for the
presence of counsel. Although we appreciate the Appel-
late Court’s thoughtful analysis of the factors that guide
the resolution of such a question, we conclude that
countervailing considerations, not taken into account
in that analysis, compel a different result.
It is well settled that the federal constitution sets the
floor, not the ceiling, on individual rights. See State v.
Baccala, 326 Conn. 232, 268, 163 A.3d 1, 23, cert. denied,
U.S. , 138 S. Ct. 510, 199 L. Ed. 2d 408 (2017). ‘‘[I]n
determining the contours of the protections provided
by our state constitution, we employ a multifactor
approach that we first adopted in [State v. Geisler, 222
Conn. 672, 685, 610 A.2d 1225 (1992)]. The factors that
we consider are (1) the text of the relevant constitu-
tional provisions; (2) related Connecticut precedents;
(3) persuasive federal precedents; (4) persuasive prece-
dents of other state courts; (5) historical insights into
the intent of [the] constitutional [framers]; and (6) con-
temporary understandings of applicable economic and
sociological norms [otherwise described as public poli-
cies].’’ (Internal quotation marks omitted.) State v. Tau-
pier, 330 Conn. 149, 175, 193 A.3d 1 (2018); see also
State v. Jenkins, 298 Conn. 209, 262, 3 A.3d 806 (2010)
(recognizing that these factors ‘‘may be inextricably
interwoven [and] [n]ot every [such] factor is relevant
in all cases’’ ([internal quotation marks omitted]).15
It is important to underscore that the question before
us is not whether our state constitution provides a
broader constitutional right than that afforded under
the federal constitution. Cf. State v. Asherman, 193
Conn. 695, 711–15, 478 A.2d 227 (1984) (declining to
construe right against compelled self-incrimination in
article first, § 8, to extend to all nontestimonial evidence
so as to preclude compelling defendant to submit to
dental impressions), cert. denied, 470 U.S. 1050, 105 S.
Ct. 1749, 84 L. Ed. 2d 814 (1985). Instead, the issue
we decide is whether to adopt an additional layer of
prophylaxis to prevent a significant risk of deprivation
of those vital constitutional rights protected under
Miranda. See State v. Dickson, 322 Conn. 410, 426 n.11,
141 A.3d 810 (2016) (‘‘it is well established that courts
have the duty not only to craft remedies for actual
constitutional violations, but also to craft prophylactic
constitutional rules to prevent the significant risk of
a constitutional violation’’ [emphasis omitted]), cert.
denied, U.S. , 137 S. Ct. 2263, 198 L. Ed. 2d 713
(2017); see also C. Rogers, ‘‘Putting Meat on Constitu-
tional Bones: The Authority of State Courts To Craft
Constitutional Prophylactic Rules Under the Federal
Constitution,’’ 98 B.U. L. Rev. 541, 545 (2018) (former
chief justice of Connecticut Supreme Court explaining
nature and purpose of court’s power to adopt prophy-
lactic rules). As another court aptly observed, ‘‘adoption
of a different procedural safeguard than that prescribed
by the [United States Supreme] Court is not even, in the
strictest sense, a matter of constitutional interpretation.
The Miranda right to counsel is not a right found in
the [f]ifth [a]mendment, but instead a prophylactic rule
fashioned by the [c]ourt to protect the right against
coerced confessions.’’ State v. Risk, 598 N.W.2d 642,
649 (Minn. 1999); see also A. Leavens, ‘‘Prophylactic
Rules and State Constitutionalism,’’ 44 Suffolk U. L.
Rev. 415, 415 (2011) (arguing that, ‘‘even if states ought
to defer to the Supreme Court concerning the meaning
of cognate constitutional provisions, such deference is
not required in considering the reach of prophylactic
rules’’); T. Saylor, ‘‘Prophylaxis in Modern State Consti-
tutionalism: New Judicial Federalism and the Acknowl-
edged, Prophylactic Rule,’’ 59 N.Y.U. Ann. Surv. Am.
L. 283, 308–309 (2003) (Pennsylvania Supreme Court
justice arguing that ‘‘there is stronger justification for
the employment of prophylactic rules to safeguard indi-
vidual liberties from government intrusion by state as
opposed to federal courts [because] one of the primary
barriers to the United States Supreme Court’s imple-
mentation of prophylactic rules-—federalism-—mili-
tates in favor of their consideration in state court.
Simply put, the problem of over-inclusive Supreme
Court rulemaking intruding into matters of state crimi-
nal law does not operate at the state level.’’ [Footnote
omitted.]). Accordingly, the nature of the question
before us will inform our consideration of the Geisler
factors.16 Cf. State v. Santiago, 318 Conn. 1, 18 n.14,
122 A.3d 1 (2015) (‘‘In some of our decisions, we have
utilized the multifactor Geisler analysis to flesh out the
general nature and parameters of the state constitu-
tional provision at issue. Having done so, we proceeded
to resolve the appellant’s particular constitutional chal-
lenge according to the legal test and framework relevant
and suited to that area of the law, rather than performing
the substantive legal analysis under the somewhat artifi-
cial auspices of the six Geisler factors.’’).
With regard to the first of those factors, the constitu-
tional text, this court previously has recognized that the
text of the due process and self-incrimination clauses
in article first, § 8, of our state constitution; see footnote
2 of this opinion; is not materially different from the
corresponding clauses of the federal constitution. See
State v. Lockhart, 298 Conn. 537, 551, 4 A.3d 1176 (2010);
State v. Ledbetter, 275 Conn. 534, 562, 881 A.2d 290
(2005) (overruled in part on other grounds by State v.
Harris, 330 Conn. 91, 131, 191 A.3d 119 [2018]), cert.
denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537
(2006); State v. Asherman, supra, 193 Conn. 712, 715.
This court has also recognized, however, that the due
process concerns that operate at the intersection
between the right to counsel and the privilege against
self-incrimination may require greater protection than
that afforded by the federal constitution under some
circumstances. In State v. Stoddard, 206 Conn. 157,
160, 164–72, 537 A.2d 446 (1988), this court declined to
follow a recently decided United States Supreme Court
case holding that efforts by counsel to contact an in-
custody suspect have no bearing on the validity of that
suspect’s waiver of his Miranda rights. In reaching that
conclusion, we relied on the fact that Connecticut ‘‘has
had a long history of recognizing the significance of the
right to counsel, even before that right attained federal
constitutional importance.’’ Id., 164.
Importantly for present purposes, this court
explained the significance of that history to be as fol-
lows: ‘‘While this history specifically illuminates the
right to counsel that attaches after the initiation of
adversary judicial proceedings, it also informs the due
process concerns raised by police interference with
counsel’s access to a custodial suspect. Cf. State v.
Ferrell, 191 Conn. 37, 42 n.5, 463 A.2d 573 (1983).17 In
recently reiterating that Miranda warnings are indepen-
dently required under the due process clause of article
first, § 8, of the Connecticut constitution; State v. Bar-
rett, 205 Conn. 437, 447, 534 A.2d 219 (1987); we recog-
nized, once again, the unique ability of counsel to
protect the rights of a client undergoing, or confronting
the imminent possibility of, interrogation. Id., 447–48,
quoting Fare v. Michael C., 442 U.S. 707, 719, 99 S. Ct.
2560, 61 L. Ed. 2d 197 . . . .
‘‘This recognition is in service of the traditional belief
that an accused may be convicted only if exacting mea-
sures have been taken to [en]sure that the accused has
been treated with the most scrupulous fairness by law
enforcement officials. State v. Ferrell, supra, [191
Conn.] 41. Because counsel is uniquely prepared to
assist a suspect in making an intelligent and knowing
decision whether to speak or stand mute, we have con-
cluded that questioning of a suspect must cease once
a clear request for counsel has been made. State v.
Acquin, 187 Conn. 647, 667, 448 A.2d 163 (1982), cert.
denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411
(1983). The decision in Miranda v. Arizona, supra,
[384 U.S.] 444, itself the benchmark in this area of law,
required fully effective means of ensuring a suspect’s
continuous right of access to counsel.’’ (Citation omit-
ted; footnote added; internal quotation marks omitted.)
State v. Stoddard, supra, 206 Conn. 166.
This court’s concern in Stoddard about police inter-
ference with access to counsel in this setting echoes
the problem of allowing a police officer to press forward
with interrogation in the face of a statement that a
suspect reasonably believes to be an invocation of his
right to have counsel present.18 We find it significant in
this regard that, in reliance on Miranda and its progeny,
this court endorsed the stop and clarify rule and fol-
lowed it for more than a decade prior to Davis. See
State v. Anderson, 209 Conn. 622, 627–28, 553 A.2d 589
(1989); State v. Barrett, supra, 205 Conn. 448; State
v. Acquin, supra, 187 Conn. 674–75. We reached this
determination based on our conclusion that this rule
was compelled under Supreme Court precedent. See
State v. Acquin, supra, 675 (noting origin of stop and
clarify rule in Fifth Circuit case law and concluding
that Supreme Court’s decision in ‘‘Edwards v. Arizona,
[supra, 451 U.S. 477] must be read to include this com-
mon-sense Fifth Circuit rule, which was implicitly
approved by the majority, and specifically stated in
Justice Powell’s concurring opinion’’ [emphasis
added]).
Since Davis, our appellate courts have not consid-
ered whether they would follow its modified legal stan-
dard as a matter of state constitutional law. This court
did summarily reject an argument that the stop and
clarify rule should apply to prewaiver statements as
a matter of state constitutional law, premised on an
assumption that Davis would control postwaiver state-
ments under our constitution. See State v. Hafford, 252
Conn. 274, 294 n.15, 746 A.2d 150, cert. denied, 531 U.S.
855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000). Putting
aside the difference in the claim presented, it is well
settled that, in the absence of a complete and proper
constitutional analysis, we would not follow such a
determination but, rather, assess the matter anew under
the requisite analytical process. See, e.g., State v. Patel,
327 Conn. 932, 939–40, 171 A.3d 1037 (2017); State v.
Piorkowski, 243 Conn. 205, 214, 700 A.2d 1146 (1997);
State v. Barton, 219 Conn. 529, 538–40, 594 A.2d 917
(1991).
Although this court has not previously addressed the
precise question presently before us, many other juris-
dictions have considered whether Davis should be fol-
lowed under their state constitutions or common-law
analogue. The numbers weigh in favor of the state’s
position, by approximately a two to one margin.19 See
State v. Purcell, supra, 174 Conn. App. 435–36 and n.16
(citing cases). Six jurisdictions that have reached this
question have concluded that Davis should not be fol-
lowed as a matter of state law.20 A seventh, West Vir-
ginia, strongly suggested that it would do so when the
question was presented; see footnote 19 of this opinion;
and other jurisdictions have found other ways to mini-
mize the potential harshness of the Davis rule.21 Ulti-
mately, however, our concern is not the numerical tally
of states but the persuasiveness of the decisions in
those states. See State v. Dickson, supra, 322 Conn. 431
(‘‘We recognize that a number of courts have concluded
otherwise. Nevertheless, we conclude that this is an
issue for which the arc of logic trumps the weight of
authority.’’); State v. Jenkins, supra, 298 Conn. 262 (‘‘a
proper Geisler analysis does not require us simply to
tally and follow the decisions favoring one party’s state
constitutional claim; a deeper review of those decisions’
underpinnings is required because we follow only per-
suasive decisions’’ [internal quotation marks omitted]).
A review of these cases reveals that, in large measure,
they simply endorse the reasoning of the majority or
concurring opinion in Davis; see, e.g., State v. Owen,
696 So. 2d 715, 719 (Fla.) (finding reasoning of Davis
majority persuasive), cert. denied, 522 U.S. 1002, 118
S. Ct. 574, 139 L. Ed. 2d 413 (1997); State v. Hoey, 77
Haw. 17, 36, 881 P.2d 504 (1994) (adopting reasoning
of Davis concurrence); rely on the soundness of the
rule adopted in that jurisdiction before Davis; see, e.g.,
Steckel v. State, 711 A.2d 5, 10–11 (Del. 1998) (following
clarification approach); Downey v. State, 144 So. 3d
146, 151 (Miss. 2014) (same); or both; see, e.g., State v.
Chew, 150 N.J. 30, 63, 695 A.2d 1301 (1997) (‘‘[g]iven
the narrow balance for the Davis majority’s analysis,
we believe it prudent to continue to apply our [stop
and clarify] precedent’’). We therefore independently
consider the merits of Davis.
Before we commence that process, we explain why
it is appropriate to undertake such a review. Since this
court adopted Geisler, we generally have assumed that
the federal precedent factor weighs against the defen-
dant if the United States Supreme Court has squarely
decided the issue to the contrary under the federal
constitution; see, e.g., State v. Piorkowski, supra, 243
Conn. 216; or the federal courts are unanimous that the
court would reach such a decision. See, e.g., State v.
Lockhart, supra, 298 Conn. 550 and n.6; State v. Ledbet-
ter, supra, 275 Conn. 561. We have not considered the
merits of the on point decision itself. However, there
are compelling reasons to reconsider that approach, at
least as applied to the circumstances of the present
case. When, as in the present case, the issue to be
decided is largely policy driven, it seems highly appro-
priate to consider the soundness of the policy rationale
supporting the Supreme Court’s decision.22 See, e.g.,
State v. Stoddard, supra, 206 Conn. 168–71 (in pre-
Geisler decision, this court examined objections to rule
requiring police to inform defendant of counsel’s efforts
to communicate with suspect articulated in United
States Supreme Court’s decision rejecting rule to deter-
mine whether rule should be adopted under our state
constitution). Indeed, as we previously noted, many of
our sister states have rested their decisions solely on
that basis. Moreover, if the Supreme Court decision
under consideration results in a significant departure
from precedent that this court has followed, as in this
instance, this court has the responsibility to examine
the Supreme Court’s reasons for doing so to aid us in
our determination as to whether we should invoke the
state constitution to stay the course or follow the
Supreme Court and adopt the change. See, e.g., State
v. Marsala, 216 Conn. 150, 160–69, 579 A.2d 58 (1990)
(pre-Geisler decision in which court examined sound-
ness of reasons articulated in United States Supreme
Court’s decision adopting good faith exception to exclu-
sionary rule to determine whether rule is incompatible
with our state constitution). In addition, if the factual
assumptions or legal underpinnings of a prior decision
have been materially undermined by events since the
Supreme Court considered the matter, it is appropriate
for us to reconsider the merits of the decision. Although
we could address many of these matters under other
Geisler factors, particularly, economic and sociological
considerations, we conclude that the more logical
approach is to consider the merits of a policy driven
Supreme Court decision separate from other policy con-
siderations.
In doing so, we consider whether the underpinnings
of the Supreme Court’s decision are so flawed or incon-
sistent with this state’s case law or public policies that
the decision should not be followed as a matter of state
law. Cf. State v. Cardenas-Alvarez, 130 N.M. 386, 391,
25 P.3d 225 (2001) (recognizing that state court may
diverge from federal constitutional precedent in inter-
preting analogous provision of state constitution if,
among other reasons, there is ‘‘ ‘a flawed federal analy-
sis’ ’’); Morris v. Brandenburg, 356 P.3d 564, 573 (N.M.
App. 2015) (citing state cases rejecting United States
Supreme Court decisions that had been widely criti-
cized as weakening right ‘‘ ‘beyond a point which may
be countenanced under our state constitution,’ ’’ or as
‘‘ ‘unpersuasive and incompatible with state constitu-
tional standards,’ ’’ or that had been criticized in legal
literature as ‘‘ ‘devoid of a reasoned basis in constitu-
tional doctrine’ ’’), aff’d, 376 P.3d 836 (N.M. 2016).
As we previously indicated, Davis was decided by a
five to four margin. See Davis v. United States, supra,
512 U.S. 452. The majority viewed the standard it articu-
lated to be consistent with the court’s precedent. Id.,
458–60. However, prior to Davis, this court had inter-
preted the court’s precedent as endorsing the stop and
clarify rule. See State v. Acquin, supra, 187 Conn. 674–
75. This means that we agreed with the interpretation
of the court’s precedent articulated by the Davis con-
currence. See Davis v. United States, supra, 467–70
(Souter, J., concurring). Consistent with that view, this
court itself subsequently characterized Davis as a
change in the law, in that it ‘‘narrowed’’ the holding in
Miranda ‘‘that when an accused person ‘indicates in
any manner at any stage of the process that he wishes
to consult with an attorney before speaking there can
be no questioning,’ and the police must stop the interro-
gation.’’ State v. Anonymous, supra, 240 Conn. 720.
The fact that Davis narrowed constitutional safeguards
deemed by this court to be of ‘‘independent’’ signifi-
cance under our state constitution; see State v. Barrett,
supra, 205 Conn. 447; State v. Ferrell, supra, 191 Conn.
45 n.12; weighs against following Davis in the absence
of countervailing considerations.
The Davis majority also justified its rule in relation
to the two sides of the Miranda equation—balancing
the need to protect suspects from an inherently coercive
interrogation environment against the need for effective
law enforcement. See Davis v. United States, supra,
512 U.S. 460–61. With regard to the suspect’s side of
the equation, the Davis majority recognized that
‘‘requiring a clear assertion of the right to counsel might
disadvantage some suspects who—because of fear,
intimidation, lack of linguistic skills, or a variety of
other reasons—will not clearly articulate their right to
counsel although they actually want to have a lawyer
present.’’ (Emphasis added.) Id., 460. Nonetheless, it
reasoned that ‘‘the primary protection afforded sus-
pects subject to custodial interrogation is the Miranda
warnings themselves. [F]ull comprehension of the
rights to remain silent and request an attorney [is] suffi-
cient to dispel whatever coercion is inherent in the
interrogation process.’’ (Internal quotation marks omit-
ted.) Id.
There are at least three flaws with this logic. The
first flaw is that it incorrectly assumes that all suspects
fully comprehend their Miranda rights and the effect
of invoking them. Despite the ubiquity of Miranda
warnings in television dramas that may lead the public
to believe that everyone knows their rights, the evi-
dence gathered since Davis is to the contrary. See gen-
erally D. Dearborn, ‘‘ ‘You Have the Right to an
Attorney,’ but Not Right Now: Combating Miranda’s
Failure by Advancing the Point of Attachment Under
Article XII of the Massachusetts Declaration of Rights,’’
44 Suffolk U. L. Rev. 359, 364–87 (2011); R. Rogers et
al., ‘‘ ‘Everyone Knows Their Miranda Rights’: Implicit
Assumptions and Countervailing Evidence,’’ 16 Psychol.
Pub. Policy & L. 300, 307–311 (2010); R. Rogers et al.,
‘‘The Language of Miranda Warnings in American Juris-
dictions: A Replication and Vocabulary Analysis,’’ 32
Law & Hum. Behav. 124 (2008) (analyzing verbal com-
prehension of Miranda warnings). ‘‘[S]ocial science has
demonstrated that suspects do not have a full apprecia-
tion of either their rights or the effect of a waiver when
they choose to speak to the police. . . . Social science
has also found a disparity between the reading level
required to comprehend the Miranda warnings and
the reading levels of suspects who are expected to
understand the warnings on their own. The evidence
proves many warnings demand a greater educational
background than many suspects possess. . . . Even
assuming a custodial suspect understands the literal
meaning of the words contained in the warnings, the
constitutional principles embedded in those words are
far from obvious. This unfortunate dynamic dispropor-
tionately impacts vulnerable populations, including
juveniles, the disabled, and individuals for whom
English is not their first language. Yet even the [well
educated] have difficulty understanding their Miranda
warnings.’’ (Footnotes omitted; internal quotation
marks omitted.) D. Dearborn, supra, 373–75.
Beyond that, the question of whether suspects under-
stand their Miranda rights is largely distinct from the
question of whether they know the unequivocal manner
in which they would have to exercise those rights to
give them effect, a piece of significant information that
is not shared with them when they are given the warn-
ings or before they are asked to waive their rights. With
regard to the particular concern in the present case,
although Davis requires a suspect to invoke his right
to counsel clearly and unequivocally, almost 70 percent
of defendants questioned in one study had no apprecia-
tion for the precision required to request counsel and
stop interrogation.23 See R. Rogers et al., supra, 16 Psy-
chol. Pub. Policy & L. 308 (defendants agreeing that,
in seeking legal assistance, it means the same thing if
you say, ‘‘ ‘I want a lawyer,’ ’’ or ‘‘ ‘I might want a law-
yer’ ’’); see also R. Rogers, ‘‘A Little Knowledge Is a
Dangerous Thing . . . Emerging Miranda Research
and Professional Roles for Psychologists,’’ 63 Am. Psy-
chologist 776, 777 (2008) (conservatively estimating
that 318,000 suspects waive all their Miranda rights
annually while failing to comprehend even 50 percent
of representative Miranda warnings).
The second flaw in the Davis majority’s logic is
expressly acknowledged—that the underinclusiveness
of its rule would disadvantage those individuals who are
most likely to be subject to the very coercive pressures
against which Miranda was intended to protect. See
Davis v. United States, supra, 512 U.S. 470 n.4 (Souter,
J., concurring) (‘‘Social science confirms what common
sense would suggest, that individuals who feel intimi-
dated or powerless are more likely to speak in equivocal
or nonstandard terms when no ambiguity or equivoca-
tion is meant. See W. O’Barr, Linguistic Evidence: Lan-
guage, Power, and Strategy in the Courtroom [1982]
61–71 . . . .’’). The Davis majority rule is akin to pro-
viding fewer life preservers to passengers on board a
boat who cannot swim or have conditions that make
swimming difficult than to those without such
impairments.
A third, related flaw involves the Davis majority’s
failure to appreciate that its rule would disproportion-
ately disadvantage certain suspect or quasi-suspect
classes, who more commonly rely on indirect speech
patterns.24 ‘‘Sociolinguistic research has demonstrated
that discrete segments of the population—particularly
women and ethnic minorities—are far more likely than
others to adopt indirect speech patterns.’’ J. Ainsworth,
supra, 103 Yale L.J. 261; see also id., 317–18 (‘‘[O]ne
researcher has observed that indirect speech patterns
are common within African-American spoken language.
In his pragmatic analysis of Black English, Thurmon
Garner described what he termed a ‘strategy of indirec-
tion’ by speakers as a linguistic mechanism to avoid
conflict.’’ [Footnotes omitted.]). For example, hedges
in speech, such as ‘‘I think,’’ ‘‘I suppose,’’ ‘‘maybe,’’ or
‘‘perhaps,’’ may be used to convey either that the
speaker is uncertain about the statement or that the
speaker prefers not to confront the addressee with a
bald assertion. See id., 276. As we observed in part II
of this opinion, hedges are one type of such indirect
speech that commonly is treated as equivocation or
ambiguity under Davis.
With regard to the other side of the Miranda equa-
tion, the Davis majority reasoned that its rule was nec-
essary for effective law enforcement. It posited that ‘‘if
we were to require questioning to cease if a suspect
makes a statement that might be a request for an attor-
ney . . . [p]olice officers would be forced to make dif-
ficult judgment calls about whether the suspect in fact
wants a lawyer even though he has not said so, with the
threat of suppression if they guess wrong.’’ (Emphasis
omitted.) Davis v. United States, supra, 512 U.S. 461.
This reasoning is premised on a false choice, between
requiring an unambiguous invocation of the right to
counsel and permitting an ambiguous invocation of that
right to require the termination of interrogation. The
court ignores that the stop and clarify approach pro-
vides a sensible middle ground, allowing law enforce-
ment to dispel ambiguity and avoid guesswork as to
the suspect’s actual intent. See Davis v. United States,
United States Supreme Court Briefs, October Term,
1993, Government’s Brief, p. 24 (‘‘[t]he ‘clarification’
rule has the simple virtue of permitting the officer to
solve that dilemma by seeking further information to
ascertain the suspect’s choice’’).
The Davis majority’s disregard of the stop and clarify
approach in considering the needs of law enforcement
is particularly difficult to understand in light of the
position taken by the government and law enforcement
amici in that very case. The government and the amici
curiae Americans for Effective Law Enforcement, Inc.,
International Association of Chiefs of Police, Inc.,
National District Attorneys Association, Inc., and
National Sheriffs’ Association all urged the court to
adopt the stop and clarify rule, asserting that it struck
the appropriate balance between the rights of suspects
and the needs of law enforcement.25 See Davis v. United
States, supra, 512 U.S. 467 n.2 (Souter, J., concurring).
The fact that a majority of jurisdictions had applied
such a rule for many years before Davis suggests that
there was an ample body of practical experience on
which the amici could base their position.
The Davis majority did concede that a stop and clarify
approach often would be ‘‘good police practice.’’ Id.,
461. Of course, that fact, in and of itself, would not
compel such a practice as constitutionally mandated.
See United States v. Kahn, 415 U.S. 143, 155 n.15, 94
S. Ct. 977, 39 L. Ed. 2d 225 (1974) (in fourth amendment
context, police officers need not follow best practice
in order for search to pass constitutional muster); State
v. Marquez, 291 Conn. 122, 145, 967 A.2d 56 (test for
determining whether identification procedure is unnec-
essarily suggestive ‘‘is not a ‘best practices’ test’’
[emphasis in original]), cert. denied, 558 U.S. 895, 130
S. Ct. 237, 175 L. Ed. 2d 163 (2009). Nonetheless, the
majority’s concession undermines its supposition that
a more protective rule would unduly hamper effective
law enforcement.
In sum, we find the reasoning of the Davis majority to
lack a sound basis in legal doctrine or law enforcement
objectives. For the reasons that follow, we also con-
clude that policy considerations that the Davis majority
was not fully aware of, or did not acknowledge, support
the more protective stop and clarify rule.
The prophylactic rules adopted in Miranda and
Edwards were intended as a countermeasure against
the inherently coercive nature of custodial interroga-
tions. See Miranda v. Arizona, supra, 384 U.S. 457–58
(‘‘It is obvious that such an interrogation environment
is created for no purpose other than to subjugate the
individual to the will of his examiner. This atmosphere
carries its own badge of intimidation. . . . Unless ade-
quate protective devices are employed to dispel the
compulsion inherent in custodial surroundings, no
statement obtained from the defendant can truly be
the product of his free choice.’’ [Footnote omitted.]);
Michigan v. Harvey, supra, 494 U.S. 350 (‘‘Edwards
thus established another prophylactic rule designed to
prevent police from badgering a defendant into waiving
his previously asserted Miranda rights’’). However,
there is reason to question whether these rules have
proved adequate to the task. See generally D. Dearborn,
supra, 44 Suffolk U. L. Rev. 364–87. As we previously
noted, studies show that many people do not have an
accurate understanding of the protections afforded
under Miranda or the manner for, and consequences
of, invoking those rights. In addition, as one commenta-
tor has observed, ‘‘[w]hat the [United States Supreme]
Court did not (and perhaps could not) realize was that
the forms of psychological coercion it sought to address
would simply be refined and replaced with equally sinis-
ter forms of manipulation.’’ Id., 364–65. This problem
has been exacerbated by the holding in Davis. By per-
mitting interrogation to continue in the face of an ambig-
uous invocation of the right to counsel, the police
officers faced with such an invocation have been
emboldened to employ a wide range of tactics designed
to deflect suspects from clearly invoking their right to
an attorney. See W. White, ‘‘Deflecting a Suspect from
Requesting an Attorney,’’ 68 U. Pitt. L. Rev. 29, 31, 41
(2006) (noting that most lower courts have interpreted
Davis to allow interrogators to employ such tactics).
The court in Miranda explained that the purpose of
the warnings is to ‘‘show the individual that his interro-
gators are prepared to recognize his privilege should
he choose to exercise it.’’ Miranda v. Arizona, supra,
384 U.S. 468. However, by allowing the police to con-
tinue interrogating a suspect who has made a statement
that he reasonably believes to be a request to have
counsel present, the suspect reasonably would infer
that the police do not intend to recognize his privilege.
See Davis v. United States, supra, 512 U.S. 472–73 (Sou-
ter, J., concurring). Such a reasonable inference might
not only dissuade subsequent efforts to renew that privi-
lege, but also deter attempts to invoke other privileges.
By contrast, as one commentator observed, ‘‘properly
administered and narrowly limited questions designed
to discern a suspect’s intent will not likely be viewed
as coercive. In fact, it is more likely that such questions
will impress upon the individual that the police are
prepared to honor his choice but must first determine
whether a choice has been made.’’ (Footnote omitted.)
W. Holly, ‘‘Ambiguous Invocations of the Right To
Remain Silent: A Post-Davis Analysis and Proposal,’’
29 Seton Hall L. Rev. 558, 590–91 (1998).
The court in Miranda also recognized the possibility
of a coercive custodial interrogation resulting in a false
confession. See Miranda v. Arizona, supra, 384 U.S.
447, 455 n.24. The magnitude of this problem, however,
was not known then, or even at the time Davis was
decided. See Lapointe v. Commissioner of Correction,
316 Conn. 225, 326, 112 A.3d 1 (2015) (discussing role
of social science research and advent of DNA testing
in revealing scope of phenomenon); see also State v.
Perea, 322 P.3d 624, 641 (Utah 2013) (‘‘[i]n the 1990s,
little research had been conducted on the phenomenon
of false confessions’’). Since Davis, the Supreme Court
has recognized that ‘‘the pressure of custodial interroga-
tion is so immense that it can induce a frighteningly
high percentage of people to confess to crimes they
never committed. Corley v. United States, 556 U.S. 303,
321 [129 S. Ct. 1558, 173 L. Ed. 2d 443] (2009) . . . .’’
(Citations omitted; internal quotation marks omitted.)
J. D. B. v. North Carolina, 564 U.S. 261, 269, 131 S. Ct.
2394, 180 L. Ed. 2d 310 (2011). Imposing an additional
prophylactic measure may assist a system of criminal
justice to prevent such results, without unduly hamper-
ing legitimate law enforcement efforts. See State v.
Francis, 322 Conn. 247, 266, 140 A.3d 927 (2016) (‘‘[t]he
value of any prophylactic rule . . . must be assessed
not only on the basis of what is gained, but also on the
basis of what is lost’’ [internal quotation marks
omitted]).
Recognizing that the promises that dwell within
Miranda can only be achieved by honoring the premises
upon which it rests, we determine that there are compel-
ling reasons to conclude that Davis’ standard does not
adequately safeguard Miranda’s right to the advice of
counsel during a custodial interrogation. We therefore
hold that, consistent with our precedent and the major-
ity rule that governed prior to Davis, our state constitu-
tion requires that, ‘‘if a suspect makes an equivocal
statement that arguably can be construed as a request
for counsel, interrogation must cease except for narrow
questions designed to clarify the earlier statement and
the suspect’s desire for counsel.’’ (Internal quotation
marks omitted.) State v. Anderson, supra, 209 Conn.
627–28. Interrogators confronted with such a situation
alternatively may inform the defendant that they under-
stand his statement(s) to mean that he does not wish
to speak with them without counsel present and that
they will terminate the interrogation. In either case,
if the defendant thereafter clearly and unequivocally
expresses a desire to continue without counsel present,
the interrogation may resume. See, e.g., State v. Acquin,
supra, 187 Conn. 660, 669–70 (after defendant indicated
that he wanted attorney and further clarification was
sought, defendant later stated that ‘‘it wasn’t really an
attorney that he wanted,’’ just someone he could trust,
and asked for psychiatrist who worked with prisoners
at his jail to be present).
Applying that standard to the present case, we con-
clude that the defendant’s rights under article first, § 8,
of the Connecticut constitution were violated when the
police officers continued to question him after the
defendant ambiguously invoked his right to have coun-
sel present. The officers’ response did not seek clarifica-
tion of the defendant’s intent. Rather, they attempted
to convince the defendant that it was against his inter-
ests not to continue the interview. See United States
v. March, 999 F.2d 456, 461–62 (10th Cir.) (‘‘clarifying
questions must be purely ministerial, not adversarial,
and cannot be designed to influence the subject not to
invoke his rights’’), cert. denied, 510 U.S. 983, 114 S.
Ct. 483, 126 L. Ed. 2d 434 (1993); Thompson v. Wain-
wright, 601 F.2d 768, 772 (5th Cir. 1979) (‘‘the limited
inquiry permissible after an equivocal request for legal
counsel may not take the form of an argument between
interrogators and suspect about whether having coun-
sel would be in the suspect’s best interests’’).
The state makes no argument in its brief to this court
that this constitutional violation was harmless beyond
a reasonable doubt. See, e.g., State v. Newton, 330 Conn.
344, 353, 194 A.3d 272 (2018) (if defendant demonstrates
that constitutional violation exists, defendant is entitled
to prevail unless state proves that violation was harm-
less beyond reasonable doubt). Instead, it contends that
suppression is not required on the grounds that (1) the
sanction of exclusion does not apply because the police
conducted themselves in objectively reasonable reli-
ance on binding judicial precedent, and there is no claim
that the statements were involuntary or untrustworthy,
and (2) the police substantially complied with the stop
and clarify rule and, in doing so, did not coerce or
intimidate him. We are not persuaded by any of
these contentions.
Prior to our decision today, it was an open question
whether this court would require a more protective rule
under our state constitution. See State v. Pinder, 250
Conn. 385, 417, 736 A.2d 857 (1999) (finding it unneces-
sary to reach defendant’s claim that state constitution
requires police to ask clarifying questions when its fed-
eral counterpart does not); State v. Anonymous, supra,
240 Conn. 717 n.11 (declining to reach claim under
state constitution because defendant did not provide
independent analysis). Although we may assume that
the officers were acting in good faith, we agree with
the defendant that such a ‘‘good faith’’ type exception
is incompatible with our case law. See State v. Marsala,
supra, 216 Conn. 169–71 (rejecting good faith exception
to warrant requirements); see also State v. Brown, 331
Conn. 258, 275–76, A.3d (2019) (affirming that
court’s rejection of good faith rule in Marsala was cate-
gorical and not amenable to case-by-case application).
As we previously have stated, we do not agree that the
police officers substantially complied with the clarifica-
tion rule.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgments of the trial court and to remand
the case to that court for a new trial.
In this opinion the other justices concurred.
* March 29, 2019, the date this opinion was released as a slip opinion, is
the operative date for all substantive and procedural purposes.
1
See Miranda v. Arizona, 384 U.S. 436, 469–73, 478–79, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).
2
Article first, § 8, of the constitution of Connecticut provides in relevant
part: ‘‘No person shall be compelled to give evidence against himself, nor
be deprived of life, liberty or property without due process of law . . . .’’
3
The defendant does not concede that the complainant was his ‘‘victim.’’
However, we use that term to conform to the Appellate Court’s recitation
of facts, from which we quote at length in this opinion.
4
The defendant is not circumcised.
5
The defendant was arrested pursuant to three separate warrants issued
in Wallingford, Fairfield, and Stratford, each of which correlated to one
or more sites of the charged conduct. Those arrests took place between
November, 2013, and February, 2014. The three cases were transferred
to the judicial district of New Haven, where the defendant acquiesced to
consolidation of the cases for trial.
6
It appears that Zerella assumed that the pictures of circumcised penises
in the victim’s possession were of the defendant. The defense later estab-
lished that the former did not depict the defendant because he is not cir-
cumcised.
7
There was evidence submitted at trial that the victim had been diagnosed
with autism. It appears that Fairbrother was likely referring to that condition.
8
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
(1) wilfully or unlawfully causes or permits any child under the age of
sixteen years to be placed in such a situation that . . . the morals of such
child are likely to be impaired, or does any act likely to impair the health
or morals of any such child, or (2) has contact with the intimate parts, as
defined in section 53a-65, of a child under the age of sixteen years or subjects
a child under sixteen years of age to contact with the intimate parts of such
person, in a sexual and indecent manner likely to impair the health or morals
of such child . . . shall be guilty of (A) a class C felony for a violation of
subdivision (1) or (3) of this subsection, and (B) a class B felony for a
violation of subdivision (2) of this subsection, except that, if the violation
is of subdivision (2) of this subsection and the victim of the offense is
under thirteen years of age, such person shall be sentenced to a term of
imprisonment of which five years of the sentence imposed may not be
suspended or reduced by the court.’’
9
We granted certification to appeal, limited to the following issues: ‘‘1.
Did the Appellate Court properly determine that the defendant’s references
to counsel during a custodial interrogation were ambiguous and equivocal
and therefore did not constitute an invocation of his right to counsel?
‘‘2. Did the Appellate Court properly determine that article first, § 8, of
the Connecticut constitution does not require that police ‘stop and clarify’
an ambiguous or equivocal request for counsel?’’ State v. Purcell, 327 Conn.
959, 172 A.3d 800 (2017).
10
In a subsequent case, the court held, also by a five to four margin, that
‘‘there is no principled reason to adopt different standards for determining
when an accused has invoked the Miranda right to remain silent and the
Miranda right to counsel at issue in Davis.’’ Berghuis v. Thompkins, 560
U.S. 370, 381, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010); see also id., 391
(Sotomayor, J., dissenting) (‘‘The [c]ourt . . . concludes that a suspect who
wishes to guard his right to remain silent against such a finding of ‘waiver’
must, counterintuitively, speak—and must do so with sufficient precision
to satisfy a clear-statement rule that construes ambiguity in favor of the
police. Both propositions mark a substantial retreat from the protection
against compelled self-incrimination that Miranda . . . has long provided
during custodial interrogation.’’).
11
In State v. Kono, 324 Conn. 80, 82 n.3, 122–24, 152 A.3d 1 (2016), this
court, following the approach we previously had adopted in State v. Santi-
ago, 318 Conn. 1, 16 n.11, 122 A.3d 1 (2015), explained that it is appropriate
to consider the state constitutional claim first when the issue presented is
one of first impression under both the state and federal constitutions or
the issue is not settled under the federal constitution to such an extent that
we can predict to a reasonable degree of certainty how the United States
Supreme Court would resolve the issue. See State v. Kono, supra, 82 n.3.
In the present case, because we can predict to a reasonable degree of
certainty how the United States Supreme Court would resolve the issue
presented here under Davis, (that is, adversely to the defendant), it is
appropriate to first explain why the defendant’s claim fails under the federal
constitution before turning to the state constitutional issue.
12
The post-Davis cases are split as to whether the mere use of the term
‘‘I think’’ renders the statement equivocal. Compare Burket v. Angelone, 208
F.3d 172, 198 (4th Cir.) (‘‘I think I need a lawyer’’ does not constitute
unequivocal request for counsel), cert. denied, 530 U.S. 1283, 120 S. Ct. 2761,
147 L. Ed. 2d 1022 (2000), Ex parte Cothren, 705 So. 2d 861, 866 (Ala. 1997)
(defendant’s statement ‘‘ ‘I think I want to talk to an attorney before I answer
that’ . . . is capable of equally plausible, differing interpretations and, there-
fore . . . is equivocal’’), cert. denied, 523 U.S. 1029, 118 S. Ct. 1319, 140 L.
Ed. 2d 482 (1998), State v. Henness, 79 Ohio St. 3d 53, 63, 679 N.E.2d 686
(‘‘ ‘I think I need a lawyer’ ’’ was not unequivocal assertion of right to
counsel), cert. denied, 522 U.S. 971, 118 S. Ct. 422, 139 L. Ed. 2d 323 (1997),
and State v. Jennings, 252 Wis. 2d 228, 233–34, 647 N.W.2d 142 (2002) (‘‘ ‘I
think maybe I need to talk to a lawyer’ ’’ was not sufficiently clear post-
Davis), with Wood v. Ercole, 644 F.3d 83, 91 (2d Cir. 2011) (‘‘ ‘I think I should
get a lawyer’ ’’ is sufficient), and State v. Jackson, 348 N.C. 52, 56–57, 497
S.E.2d 409 (‘‘ ‘I think I need a lawyer present’ ’’ is invocation of right) (over-
ruled in part on other grounds by State v. Buchanan, 353 N.C. 332, 340, 543
S.E.2d 823 [2001]), cert. denied, 525 U.S. 943, 119 S. Ct. 365, 142 L. Ed. 2d
301 (1998). We observe that, prior to Davis, this court concluded that a
defendant’s statement, ‘‘ ‘I think I better get a lawyer’ could hardly be [a]
more clear’’ invocation of his right to counsel. State v. Acquin, 187 Conn.
647, 672, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570,
77 L. Ed. 2d 1411 (1983).
13
In a concurring opinion in Lucas, two justices concluded that these
statements did not express an invocation of the right to counsel but, rather,
an invocation of the right to remain silent. See Lucas v. State, supra, 273
Ga. 91 (Hunstein, J., concurring).
14
‘‘[A]n accused’s postrequest responses to further interrogation may not
be used to cast retrospective doubt on the clarity of the initial request itself.
Such subsequent statements are relevant only to the distinct question of
waiver.’’ (Emphasis omitted.) Smith v. Illinois, supra, 469 U.S. 100.
15
For example, because the issue before us concerns the protection of
Miranda rights—rights that were first recognized in 1966—historical
insights into the intent of the framers as to this particular issue is not a
relevant consideration.
16
We note that an argument could be made that, when considering whether
to adopt a prophylactic rule to protect an established constitutional right,
we need not engage in a Geisler analysis. Some commentators have argued
that the appropriate analytical process is a policy centered weighing process
similar to the one, described subsequently in this opinion, that the Supreme
Court relied on in Davis. See Davis v. United States, supra, 512 U.S. 458
(noting that whether to adopt prohibition on further questioning ‘‘is . . .
justified only by reference to its prophylactic purpose’’); see also S. Klein,
‘‘Identifying and (Re)formulating Prophylactic Rules, Safe Harbors, and Inci-
dental Rights in Constitutional Criminal Procedure,’’ 99 Mich. L. Rev. 1030,
1061–63 (2001) (arguing that court first determines whether rule providing
relief only when there is showing that right actually has been violated is
effective, and, if not, whether the proposed rule will be effective without
imposing unacceptable costs); T. Saylor, supra, 59 N.Y.U. Ann. Surv. Am.
L. 299, 311–12 (citing other formulations of prerequisites and describing
core of inquiry as cost/benefit assessment). However, even some commenta-
tors who favor such weighing processes argue that any unique state concerns
must be considered. See T. Aleinikoff, ‘‘Constitutional Law in the Age of
Balancing,’’ 96 Yale L.J. 943, 1002–1004 (1987) (discussing potential alterna-
tives to balancing, including focused examination of items such as ‘‘text,
structure, precedent, consequences, history, intent, our ‘ethical traditions’
[and] notions of fundamental values’’ [footnote omitted]); T. Saylor, supra,
312–13 (‘‘[j]ust as [under a primacy approach] state constitutional analysis
should begin and end with the state constitution, unique state content,
context, and sources should be deemed relevant in any balancing equation’’).
This court previously has considered the Geisler factors in deciding
whether to adopt a prophylactic rule under our state constitution; see, e.g.,
State v. Harris, 330 Conn. 91, 114–31, 191 A.3d 119 (2018); State v. Jenkins,
298 Conn. 209, 259–82, 3 A.3d 806 (2010); State v. Piorkowski, 243 Conn.
205, 214–21, 700 A.2d 1146 (1997); see also State v. Lawrence, 282 Conn.
141, 158-77, 920 A.2d 236 (2007); and the parties in the present case have
briefed this issue under Geisler. Neither party advocated for a different
approach. Nonetheless, we note that the outcome would be the same under
either approach.
17
In State v. Ferrell, supra, 191 Conn. 45, this court held that, because
the right to consult with counsel is meaningless if the accused cannot
privately and freely discuss the case, statements obtained without affording
the privacy required to effectuate Miranda rights may not be admitted
into evidence against a defendant in the state’s case-in-chief. The court
emphasized that this holding was based not only on our interpretation of
the fourteenth amendment to the United States constitution, but also on
the alternative, independent state ground of the due process clause under
article first, § 8, of the Connecticut constitution. Id., 45 n.12.
18
In the present case, the Appellate Court dismissed the significance of
Stoddard on the ground that this court had since ‘‘clarified the narrow
confines of Stoddard . . . .’’ State v. Purcell, supra, 174 Conn. App. 434.
The Appellate Court is correct that this court declined to extend Stoddard
to require the police to inform a juvenile suspect of his parent’s efforts to
make contact; see State v. Whitaker, 215 Conn. 739, 751–52, 578 A.2d 1031
(1990); concluded that Stoddard did not require the court to adopt a per
se rule that a waiver of counsel can occur only in the presence of counsel;
see State v. Piorkowski, 243 Conn. 205, 217–21, 700 A.2d 1146 (1997); and
that Stoddard did not require us to adopt a per se rule that the failure to
record a defendant’s confession violates his right to counsel. State v. Lock-
hart, supra, 298 Conn. 554. It is important to observe that, in each of these
cases, the defendant was unable to offer persuasive precedent from this
court or other courts, or compelling policy justifications for providing greater
rights under our state constitution. In none of these cases did this court
call into question the broader concerns articulated in Stoddard and its
predecessors. See, e.g., State v. Piorkowski, supra, 217 (discussing Stoddard
and noting that, although our state constitution ‘‘scrupulously protects the
right of an individual’s access to counsel, we always have recognized that
the right to counsel is a personal right’’). Moreover, the issue of whether a
police officer can press forward with interrogation in the face of a statement
that a suspect reasonably believes to be an invocation of his Miranda right
to have counsel present is akin to the concern this court expressed in
Stoddard regarding police interference with access to counsel.
The state asserts that, ‘‘[e]ven more telling, in State v. Barrett, [supra,
205 Conn. 447], this court rejected the claim ‘that the due process clause
contained in article first, § 8, of our state constitution require[d] a more
expansive interpretation of the defendant’s invocation of his [Miranda] right
to counsel . . . .’ ’’ The state ignores the fact that we limited our holding
in Barrett to ‘‘the circumstances of this case’’; State v. Barrett, supra, 447;
which presented the unusual circumstance in which the defendant unambig-
uously invoked his right to have counsel present for any written statement
but similarly unambiguously waived his right to have counsel present for
his oral statement. Id., 448–49. Indeed, following the language on which the
state relies, this court acknowledged that the warnings required by Miranda
‘‘are independently required under the due process clause of article first,
§ 8, of the Connecticut constitution.’’ Id., 447.
19
The Appellate Court cited thirteen jurisdictions that adopted Davis
under their respective state constitutions: California, Florida, Indiana, Iowa,
Kansas, Mississippi, Montana, New Mexico, Tennessee, Texas, Washington,
West Virginia, and Wisconsin. See State v. Purcell, supra, 174 Conn. App.
435–36. It also cited three jurisdictions that had endorsed Davis as a matter
of state law; see id., 436 n.16; and two jurisdictions that had adopted Davis
only for postwaiver requests for counsel. Id.
The parties agree that the majority of jurisdictions to consider this issue
have resolved it in favor of the state’s position. We note, however, that the
numbers are not quite as lopsided as the Appellate Court suggested. In the
Mississippi case cited by our Appellate Court, Franklin v. State, 170 So. 3d
481, 491 (Miss. 2015), only a plurality of the court endorsed Davis, and thus
the case did not overrule that state court’s earlier decision rejecting Davis,
which we have cited in footnote 20 of this opinion. Insofar as the Appellate
Court included jurisdictions that adopted Davis’ standard for the question
of an ambiguous invocation of the right to remain silent, such holdings
would not necessarily dictate whether that standard would apply to an
ambiguous invocation of the right to counsel. See, e.g., State v. Farley, 192
W. Va. 247, 256 n.12, 452 S.E.2d 50 (1994) (The court, after applying the
rule in Davis to conclude that the ambiguous invocation of the right to
remain silent does not offend the West Virginia constitution, noted: ‘‘By
using Davis . . . as an analytical starting point, we do not mean to infer
that we are adopting Davis as part of West Virginia’s jurisprudence. . . .
Given the coercive atmosphere, police pressure, secrecy, and the lack of
sophistication of many criminal defendants, it would seem that an expression
of reluctance to cooperate, at least insofar as it relates to an expression
of an interest in the assistance of a lawyer, ought to be honored by the
police. An approach, more consistent with Miranda itself, would be to
follow the practice approved by a number of lower courts and, as urged by
the concurring opinion in Davis, to require the interrogating officers to ask
clarifying questions in order to clear up any ambiguity surrounding an inter-
est in speaking with a lawyer. We note with interest that it took the Hawaii
Supreme Court only three months to reject Davis in favor of the more
reasonable stop-and-clarify approach.’’ [Emphasis added.]). In addition, in
an Iowa case, three justices wrote separately to raise the question of whether
the court’s prior case adopting Davis as a matter of state constitutional law
has continued vitality. See State v. Effler, 769 N.W.2d 880, 894–97 (Iowa
2009) (Appel, J., specially concurring), cert. denied, 558 U.S. 1096, 130 S.
Ct. 1024, 175 L. Ed. 2d 627 (2009).
20
The following cases were decided under the jurisdiction’s state constitu-
tion: Steckel v. State, 711 A.2d 5, 10–11 (Del. 1998); State v. Hoey, 77 Haw. 17,
36, 881 P.2d 504 (1994); State v. Risk, supra, 598 N.W.2d 648–49 (Minnesota);
Downey v. State, 144 So. 3d 146, 151 (Miss. 2014); State v. Charboneau, 323
Or. 38, 58–60, 913 P.2d 308 (1996), cert. denied, 519 U.S. 1065, 117 S. Ct.
704, 136 L. Ed. 2d 625 (1997). The Appellate Court’s tally of four omitted
the Mississippi case; see footnote 19 of this opinion; and discounted the
New Jersey case. We include State v. Chew, 150 N.J. 30, 62–63, 695 A.2d
1301 (1997), in our tally because the mere fact that the right against self-
incrimination under New Jersey law rests on a common-law privilege dating
to the state’s origin, rather than a constitutional provision; see State v. Fary,
19 N.J. 431, 435, 117 A.2d 499 (1955); does not make the court’s position
any less significant in our view.
21
Even some jurisdictions purporting to apply federal law have mitigated
the harshness of Davis’ rule though various approaches. See, e.g., People
v. Kutlak, 364 P.3d 199, 206 (Colo. 2016) (assessing ambiguity of request
by totality of circumstances, including ‘‘the speech patterns of the accused,’’
‘‘the accused’s behavior during interrogation,’’ and ‘‘the accused’s youth,
criminal history, background, nervousness or distress, and feelings of intimi-
dation or powerlessness’’); State v. Anderson, 258 So. 2d 44, 48, (La. App.
2017) (citing pre-Davis case law in support of rule that, ‘‘[i]In analyzing
whether there has been a direct, clear, unequivocal, and unambiguous
request for counsel, courts must give a broad, rather than narrow, interpre-
tation to the suspect’s request’’ [emphasis added]).
22
The state asserts that the federal precedent Geisler factor necessarily
favors the state because Davis adopted a bright-line rule, and that the view
of the four concurring justices in Davis is irrelevant because ‘‘the rule in
Davis is a judicially prescribed prophylaxis, not a constitutional command
. . . and nothing in the opinion of the concurring justices sheds any light
on article first, § 8, of the Connecticut constitution.’’ In our view, the fact
that the Davis rule is not a constitutional command affords more freedom
to depart from federal precedent, not less. See Miranda v. Arizona, supra,
384 U.S. 490 (‘‘[s]tates are free to develop their own safeguards for the
privilege, so long as they are fully as effective as those [required by Miranda
for] informing accused persons of their right of silence and in affording a
continuous opportunity to exercise it’’). With regard to the view of the
concurring justices in Davis, the question they raised as to whether the
majority’s rule was a departure from Supreme Court precedent—precedent
that this court had followed—is necessarily a relevant consideration, as is
any other concern they raised relevant to public policy considerations.
23
The study also reflected that more than 30 percent of defendants inaccu-
rately believe that questioning can continue until their lawyers are physically
present, and that a substantial minority do not believe they will have the
opportunity to confer with counsel in private, thereby vitiating a primary
advantage of seeking counsel. See R. Rogers et al., supra, 16 Psychol. Pub.
Policy & L. 311.
24
The Davis majority’s approach also is problematic in cases in which
the defendant requires a translator, as he may make a statement that is
subject to different interpretations in translation. See, e.g., United States v.
De La Jara, 973 F.2d 746, 750–51 (9th Cir. 1992) (noting that interpreter
offered three possible interpretations of defendant’s statements, and that
‘‘the meaning of [the defendant’s] statement is crucial, as the alternate
translations have different legal effects’’); see also Vargas-Salguero v. State,
237 Md. App. 317, 337, 185 A.3d 793 (2018) (The defendant’s statement,
translated from Spanish, ‘‘has two components that we need to unpack: the
conditional opening [‘if I am being accused of something’] followed by the
request itself [‘I better want an attorney’]. The first half of the sentence stated
a condition, and a colloquial preface or qualifier can render a statement
ambiguous. But the statement’s ultimate clarity depends on its context.’’
[Emphasis omitted.]).
25
In its brief in Davis, the government went so far as to assert that the
stop and clarify rule was the only approach that comported with the balance
underlying Miranda and Edwards, and that a rule permitting clarifying
questions provides a bright line for the police and the courts to follow. See
Davis v. United States, United States Supreme Court Briefs, supra, p. 23.