State v. Donald , 325 Conn. 346 ( 2017 )

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STATE OF CONNECTICUT v. RAVON DONALD
(SC 19786)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
Argued January 20—officially released May 2, 2017
Robert O’Brien, assigned counsel, with whom, on the
brief, was Christopher Duby, assigned counsel, for the
appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Richard J. Rubino, senior assistant state’s
attorney, for the appellee (state).
Opinion
ROGERS, C. J. The defendant, Ravon Donald, chal-
lenges the trial court’s denial of his motion to suppress
a signed, sworn statement he made to the police in
which he confessed to committing a robbery and assault
at a grocery store. The defendant claims that the trial
court should have granted his motion to suppress his
statement because the police initially questioned him
concerning his knowledge of the robbery while he was
in custody before they provided Miranda warnings1 and
then, after the warnings, proceeded to more thoroughly
question him, resulting in the challenged statement. We
hold that regardless of whether the trial court’s denial
of the motion to suppress testimony regarding the initial
questioning of the defendant was error, any such error
was harmless. The trial court properly denied the
motion to suppress the defendant’s written statement
because under the specific facts of the present case
there was sufficient separation between the initial ques-
tioning and the subsequent interrogation to render the
Miranda warnings effective and, therefore, we affirm
the judgment of the trial court.
The jury reasonably could have found the following
facts based upon the evidence. On the evening of
December 22, 2011, the victims, Nicholas Ulerio and
Brunilda Villa-Rodriguez, were working behind the
counter at Ulerio Grocery Store (grocery store) on
Homestead Avenue in Hartford. The defendant and Tier-
ais Harris, both wearing masks, entered the grocery
store. The defendant was armed with an antique
revolver and Harris was armed with a BB gun. The
defendant approached the counter and shot the victims
multiple times, inflicting serious injuries upon both vic-
tims. He then kicked a door repeatedly to gain access
to the area behind the counter and proceeded to take
approximately $100 from the cash register. The defen-
dant and Harris then left the grocery store. The robbery
was recorded on the store’s surveillance cameras.
The trial court reasonably could have found the fol-
lowing additional facts based upon the evidence pre-
sented at the hearing on the defendant’s motion to
suppress his statements to the police. Detective Regi-
nald Early of the Hartford Police Department was the
lead detective assigned to investigate the robbery at
the grocery store. Early had known the defendant for
three years, which resulted in a rapport between them.
The defendant felt comfortable enough speaking with
Early that in the days prior to the robbery he had
attempted to contact Early for help because he was
homeless. On the basis of a voice mail message that
the defendant had left for Early on December 19, 2011,
in which the defendant had sought to turn in an antique
revolver to the police for cash, Early believed that the
defendant may have participated in the robbery.2
On January 6, 2012, Early contacted the defendant
and arranged to meet him in Keney Park, telling the
defendant that the purpose of the meeting was to
resolve an outstanding warrant. Early and a second
detective, Kevin Salkeld, waited for the defendant in
an unmarked police vehicle. The defendant arrived at
Keney Park at approximately 3:30 p.m., driving a pickup
truck. The defendant then voluntarily sat in the front
passenger seat of the police vehicle, with Early seated
in the driver’s seat and Salkeld seated in the backseat.
Early spoke with the defendant and the defendant
agreed to accompany the detectives to the police station
to turn himself in on the outstanding warrant. At that
point the defendant understood that he was under
arrest. The defendant then informed the detectives that
the pickup truck he had driven to Keney Park was stolen
and contained drugs. The detectives arranged for other
officers to come and tow the vehicle. While waiting for
the officers to arrive, Early asked the defendant if he
knew anything about the robbery on Homestead Avenue
and if he was willing to speak to the police about the
robbery. The defendant responded, ‘‘ ‘[y]eah, I know
about that . . . .’ ’’ Salkeld interpreted the defendant’s
response to mean that the defendant admitted that he
had been involved in the robbery. The detectives did
not ask the defendant any additional questions about
the robbery while at Keney Park.
The detectives then transported the defendant to the
police station, completed the processing of his arrest
on the outstanding warrant, and placed him in an inter-
rogation room, where they had him wait while they
prepared to question him. The detectives provided
Miranda warnings to the defendant and at 5:18 p.m., the
defendant signed a waiver indicating that he understood
his rights and did not wish to invoke them. Subse-
quently, the detectives questioned the defendant for
several hours during which time he provided a detailed
statement in which he admitted to participating in the
robbery and shooting the victims. Early transcribed the
defendant’s oral statement into a written statement that
the defendant could read and sign. The defendant pro-
vided a description of the gun that he used in the rob-
bery, which was the same gun he had previously
contacted Early to discuss turning in to the police for
cash. He identified the person to whom he sold the gun
after the robbery and selected him from a photographic
array. The defendant also identified Harris as the other
individual involved in the robbery and selected him
from a photographic array. Although the defendant ini-
tially expressed a desire not to sign the statement, as
documented in the statement itself, at approximately
9:30 p.m. the defendant signed it.
The following procedural history is relevant. Subse-
quent to providing the signed statement, the defendant
was arrested and charged by information with multiple
counts relating to the robbery of the grocery store.3
Prior to the trial, the defendant filed a motion to sup-
press his statements to the police. The trial court,
Dewey, J., held a hearing on the motion to suppress
on May 27, 2014. The state presented the testimony
of Early and Salkeld and submitted into evidence the
defendant’s Miranda waiver, the signed statement, the
two photographic arrays, and additional documents the
defendant signed during his interrogation. The trial
court orally denied the defendant’s motion to suppress.
Subsequently, a jury found the defendant guilty of all
counts.4 On April 2, 2015, the court, Kwak, J., sentenced
the defendant to a total effective sentence of seventy-
five years of incarceration, of which fifteen years is a
mandatory minimum, followed by ten years of special
parole. This appeal followed.
The defendant claims that the trial court improperly
denied his motion to suppress his signed statement to
the police because the detectives failed to provide him
with Miranda warnings at Keney Park prior to asking
him about the robbery. He claims that the questioning
at Keney Park and the subsequent questioning at the
police station was a single, continuous interrogation
that rendered the Miranda warning provided by the
detectives at the police station ineffective.
The state first asserts that the defendant’s claim is
unreviewable because the record is inadequate. The
state next claims that the question posed to the defen-
dant at Keney Park about any knowledge he may have
had about the grocery store robbery did not amount
to interrogation and, therefore, did not require prior
Miranda warnings.5 The state further claims that even
if the initial question posed by Early at Keney Park
constituted an interrogation, required prior Miranda
warnings, and was inadmissible, the second interroga-
tion at the police station was sufficiently attenuated
from the initial interrogation such that the Miranda
warnings the detectives provided to the defendant prior
to the second interrogation rendered his subsequent
statement admissible.
As a threshold matter, we first address whether the
record is adequate for review. Practice Book § 64-1 (a)
provides in relevant part: ‘‘The trial court shall state its
decision either orally or in writing . . . (4) in ruling
on motions to suppress under [§] 41-12 . . . . The
court’s decision shall encompass its conclusion as to
each claim of law raised by the parties and the factual
basis therefor. If oral, the decision shall be recorded
by a court reporter, and, if there is an appeal, the trial
court shall create a memorandum of decision for use
in the appeal by ordering a transcript of the portion of
the proceedings in which it stated its oral decision. The
transcript of the decision shall be signed by the trial
judge . . . .’’ Practice Book § 61-10 (a) provides: ‘‘It is
the responsibility of the appellant to provide an ade-
quate record for review. The appellant shall determine
whether the entire record is complete, correct and oth-
erwise perfected for presentation on appeal.’’
‘‘When the record does not contain either a [written]
memorandum of decision or a transcribed copy of an
oral decision signed by the trial court stating the reasons
for its decision, [the Appellate Court] frequently has
declined to review the claims on appeal because the
appellant has failed to provide the court with an ade-
quate record for review. . . . [However] [i]f there is
an unsigned transcript on file in connection with an
appeal, the claims of error raised by the plaintiff may
be reviewed if [the reviewing court] determines that
the transcript adequately reveals the basis of the trial
court’s decision.’’ (Emphasis omitted; internal quota-
tion marks omitted.) Computer Reporting Service, LLC
v. Lovejoy & Associates, LLC, 167 Conn. App. 36, 41
n.2, 145 A.3d 266 (2016).
‘‘The general purpose of [the relevant] rules of prac-
tice . . . [requiring the appellant to provide a sufficient
record] is to ensure that there is a trial court record
that is adequate for an informed appellate review of
the various claims presented by the parties.’’ (Internal
quotation marks omitted.) Ammirata v. Zoning Board
of Appeals, 264 Conn. 737, 744, 826 A.2d 170 (2003).
‘‘[W]hen the facts underlying a claim on appeal are not
in dispute and that claim is subject to de novo review,
‘the precise legal analysis undertaken by the trial court
is not essential to the reviewing court’s consideration
of the issue on appeal.’ Community Action for Greater
Middlesex County, Inc. v. American Alliance Ins. Co.,
[254 Conn. 387, 396, 757 A.2d 1074 (2000)]. In other
words, a record is adequate for review when the claim
on appeal is subject to de novo review and there is no
dispute as to the facts underlying that claim.’’ Ammir-
ata v. Zoning Board of Appeals, supra, 745–46.
In the present case, the trial court orally denied the
defendant’s motion to suppress, after conducting a
hearing on the motion, without making factual findings
or elaborating on the legal basis for denial of the motion.
Additionally, the defendant did not secure a signed copy
of the transcript or seek articulation of the trial court’s
ruling. While it would have been preferable for the trial
court to issue a written memorandum of decision or to
state orally its legal basis for denying the defendant’s
motion to suppress and its factual findings, we hold
that the record is adequate for review because none of
the material facts are in dispute6 and the question of
whether the trial court properly denied the defendant’s
motion to suppress is subject to plenary review. See
State v. Smith, 321 Conn. 278, 289, 138 A.3d 223 (2016).
Turning to the substance of the defendant’s claim,
we next set forth the applicable standard of review and
legal principles. ‘‘As a general matter, the standard of
review for a motion to suppress is well settled. . . .
[When] the legal conclusions of the court are chal-
lenged, [our review is plenary, and] we must determine
whether they are legally and logically correct and
whether they find support in the facts set [forth] in the
memorandum of decision . . . .’’ (Internal quotation
marks omitted.) State v. Gonzalez, 302 Conn. 287, 295–
96, 25 A.3d 648 (2011).
A motion to suppress a defendant’s confession may
implicate the threshold conditions that trigger the need
for providing a defendant Miranda warnings or the
voluntariness of a defendant’s waiver of the rights
underlying the warnings. We will first address the
threshold conditions. ‘‘It is well established that the
prosecution may not use statements, whether exculpa-
tory or inculpatory, stemming from custodial interroga-
tion of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege
against [self-incrimination]. Miranda v. Arizona, [384
U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)].’’
(Internal quotation marks omitted.) State v. Gonzalez,
supra, 302 Conn. 294. ‘‘Two threshold conditions must
be satisfied in order to invoke the warnings constitu-
tionally required by Miranda: (1) the defendant must
have been in custody; and (2) the defendant must have
been subjected to police interrogation. . . . The defen-
dant bears the burden of proving custodial interroga-
tion. . . . [T]he definition of interrogation [for
purposes of Miranda] can extend only to words or
actions on the part of police officers that they should
have known were reasonably likely to elicit an incrimi-
nating response. . . . The test as to whether a particu-
lar question is likely to elicit an incriminating response
is objective; the subjective intent of the police officer
is relevant but not conclusive and the relationship of
the questions asked to the crime committed is highly
relevant. . . . [State v. Betances, 265 Conn. 493, 500–
501, 828 A.2d 1248 (2003)]. [T]he ultimate determination
. . . of whether a defendant already in custody has
been subjected to interrogation . . . presents a mixed
question of law and fact over which our review is ple-
nary . . . . State v. Edwards, 299 Conn. 419, 428, 11
A.3d 116 (2011).’’ (Emphasis in original; internal quota-
tion marks omitted.) State v. Smith, supra, 321 Conn.
288–89.
‘‘A defendant in custody is subject to interrogation
not only in the face of express questioning by police
but also when subjected to any words or actions on
the part of the police (other than those normally atten-
dant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response
from the suspect. . . . Whether a defendant in custody
is subject to interrogation necessarily involves
determining first, the factual circumstances of the
police conduct in question, and second, whether such
conduct is normally attendant to arrest and custody or
whether the police should know that such conduct is
reasonably likely to elicit an incriminating response.
. . . A practice that the police should know is reason-
ably likely to evoke an incriminating response from a
suspect thus amounts to interrogation. But, since the
police surely cannot be held accountable for the unfore-
seeable results of their words or actions, the definition
of interrogation can extend only to words or actions
on the part of the police officers that they should have
known were reasonably likely to elicit an incriminating
response. . . . State v. Canady, 297 Conn. 322, 335–36,
998 A.2d 1135 (2010).’’ (Emphasis in original; internal
quotation marks omitted.) State v. Ramos, 317 Conn.
19, 29–30, 114 A.3d 1202 (2015).
The defendant claims that admission of his statement
in Keney Park was improper because it constituted
custodial interrogation and he did not receive Miranda
warnings. He claims that his second statement, at the
police station, should be suppressed as a result of the
harm derived by the first, unwarned statement. We con-
clude that, even if we were to assume that the question
posed to the defendant in Keney Park about the Home-
stead Avenue robbery constituted interrogation and
that the testimony regarding the defendant’s answer
should have been suppressed, the subsequent interroga-
tion at the police station was sufficiently attenuated
from the first interrogation at Keney Park to render the
intervening Miranda warnings effective to ensure that
the defendant made a meaningful choice when he par-
ticipated in the second interrogation. Therefore, we
decline to reach the issue of whether the initial question
in Keney Park constituted an interrogation.7
If a defendant has been provided Miranda warnings,
he may still challenge the voluntariness of his waiver
of those rights described to him in the warnings and
his subsequent confession. See Missouri v. Seibert, 542
U.S. 600, 608 n.1, 124 S. Ct. 2601, 159 L. Ed. 2d 643(2004). ‘‘[T]he use of an involuntary confession in a
criminal trial is a violation of due process. . . . The
state has the burden of proving the voluntariness of the
confession by a fair preponderance of the evidence.
. . . [T]he test of voluntariness is whether an examina-
tion of all the circumstances discloses that the conduct
of law enforcement officials was such as to overbear
[the defendant’s] will to resist and bring about confes-
sions not freely self-determined . . . .’’ (Internal quota-
tion marks omitted.) State v. Lawrence, 282 Conn. 141,
153, 920 A.2d 236 (2007).
When a defendant challenges the admissibility of a
warned confession that follows an initial unwarned
statement, ‘‘absent deliberately coercive or improper
tactics in obtaining the initial statement, the mere fact
that a suspect has made an unwarned admission does
not warrant a presumption of compulsion. A subsequent
administration of Miranda warnings to a suspect who
has given a voluntary but unwarned statement ordi-
narily should suffice to remove the conditions that pre-
cluded admission of the earlier statement. In such
circumstances, the finder of fact may reasonably con-
clude that the suspect made a rational and intelligent
choice whether to waive or invoke his rights.’’ Oregon
v. Elstad, 470 U.S. 298, 314, 105 S. Ct. 1285, 84 L. Ed.
2d 222 (1985). ‘‘It is an unwarranted extension of
Miranda to hold that a simple failure to administer the
warnings, unaccompanied by any actual coercion or
other circumstances calculated to undermine the sus-
pect’s ability to exercise his free will, so taints the
investigatory process that a subsequent voluntary and
informed waiver is ineffective for some indeterminate
period.’’ Id., 309. ‘‘[T]he dictates of Miranda and the
goals of the [f]ifth [a]mendment proscription against
use of compelled testimony are fully satisfied in [such]
circumstances . . . by barring the use of the unwarned
statement in the [case-in-chief]. No further purpose is
served by imputing ‘taint’ to subsequent statements
obtained pursuant to a voluntary and knowing waiver.’’
Id., 318. In contrast, when ‘‘[the] circumstances [of the
two interrogations] must be seen as challenging the
comprehensibility and efficacy of the Miranda warn-
ings to the point that a reasonable person in the sus-
pect’s shoes would not have understood them to convey
a message that [the suspect] retained a choice about
continuing to talk,’’ the postwarning statements, as well
as the prewarning statements, are inadmissible. Mis-
souri v. Seibert, supra, 542 U.S. 617. This is true because
‘‘when Miranda warnings are inserted in the midst of
coordinated and continuing interrogation, they are
likely to mislead and depriv[e] a defendant of knowl-
edge essential to his ability to understand the nature
of his rights and the consequences of abandoning them.
. . . [I]t would ordinarily be unrealistic to treat two
spates of integrated and proximately conducted ques-
tioning as independent interrogations subject to inde-
pendent evaluation simply because Miranda warnings
formally punctuate them in the middle.’’ (Citation omit-
ted; internal quotation marks omitted.) Id., 613–14.
‘‘[R]elevant facts that bear on whether Miranda
warnings delivered midstream could be effective
enough to accomplish their object[ive] [include]: the
completeness and detail of the questions and answers
in the first round of interrogation, the overlapping con-
tent of the two statements, the timing and setting of
the first and the second, the continuity of police person-
nel, and the degree to which the interrogator’s questions
treated the second round as continuous with the first.’’8
Id., 615.
At one end of the spectrum is Elstad, in which the
United States Supreme Court held that a brief unwarned
interrogation at the defendant’s residence did not
impermissibly taint a subsequent warned interrogation
that occurred several hours later at the police station.
Oregon v. Elstad, supra, 470 U.S. 314, 318. In Seibert,
the court noted that ‘‘it is fair to read Elstad as treating
the living room conversation as a [good faith] Miranda
mistake, not only open to correction by careful warn-
ings before systematic questioning in that particular
case, but posing no threat to warn-first practice gener-
ally.’’ Missouri v. Seibert, supra, 542 U.S. 615. At the
other end of the spectrum is Seibert, where the court
found that a police strategy of conducting an extensive
unwarned interrogation immediately followed by
Miranda warnings and then a second interrogation
based on the information provided by the defendant in
the first interrogation was improper and the post-
warning statement was inadmissible because the cir-
cumstances rendered the mid-interrogation warning
ineffective. Id., 616–17.
In the present case, the circumstances of the two
interrogations are more akin to the circumstances
found in Elstad, in which the Supreme Court held that
the statement resulting from the warned interrogation
was admissible. Oregon v. Elstad, supra, 470 U.S. 318.
The initial unwarned interrogation at Keney Park was
extremely brief and limited in scope in comparison to
the warned interrogation at the police station. At most,
during the brief initial questioning Early asked the
defendant if he knew about the robbery on Homestead
Avenue and the defendant stated that he ‘‘kn[e]w about
that,’’ which statement Salkeld interpreted to mean that
he was involved in the robbery. The second interroga-
tion lasted several hours, during which time the defen-
dant was presented with multiple photographic arrays
and other documents to annotate, and the defendant
provided a detailed confession that, when transcribed
by Early, was several pages in length. While there is no
evidence that the detectives’ initial failure to provide
Miranda warnings was a mere good faith mistake, there
is also no evidence that the detectives used any actual
coercion to elicit an involuntary confession from the
defendant at Keney Park. The fact that the detectives
ceased any questioning once the defendant stated he
knew about the robbery does not support a conclusion
that the detectives were attempting to engage in the
comprehensive question first strategy that was found
to be impermissible in Missouri v. Seibert, supra, 542
U.S. 616. Once the initial questioning ceased, there was
also a change in location and a break of several hours
between the two interrogations, during which time the
defendant was arrested and booked for his unrelated
warrant. In addition, the substance of the defendant’s
signed statement includes evidence that the defendant
understood that he had a choice as to whether he would
speak with the detectives at the police station. Of partic-
ular note is the fact that the defendant told the detec-
tives that he was unsure whether he wanted to sign the
statement because he felt that if he did not sign it, he
would have a chance to avoid jail, but that if he signed
it, he would go to jail for a long time. When he ultimately
decided to sign the statement, the defendant indicated
that it was because he ‘‘fel[t] really bad about what
happened,’’ and he did not reference any belief that he
should sign the statement because he had already told
the police that he had committed the robbery.9
Viewing all of the relevant facts together, the state
has met its burden of proving by a preponderance of
the evidence that the defendant’s waiver of his Miranda
rights and subsequent written statement was voluntary.
We are persuaded that the circumstances surrounding
the two interrogations did not create a situation in
which the defendant did not believe he had a meaningful
choice whether to exercise his right to remain silent
when he was provided Miranda warnings before the
second interrogation. Therefore, we conclude that the
trial court properly denied the defendant’s motion to
suppress the written statement he made at the police
station.
The judgment is affirmed.
In this opinion the other justices concurred.
1
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966) (‘‘[p]rior to any questioning, the person must be warned that he has
a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an attorney,
either retained or appointed’’).
2
At trial, Early further testified that based on his previous interactions
with the defendant, when he watched the surveillance footage of the robbery
he believed the physical appearance and mannerisms of the shooter matched
those of the defendant.
3
The defendant was charged in a substitute information with two counts
of assault in the first degree in violation of General Statutes § 53a-59 (a)
(1) and (5), respectively, and one count each of robbery in the first degree
in violation of General Statutes § 53a-134 (a) (2), conspiracy to commit
robbery in the first degree in violation of § 53a-134 (a) (2) and General
Statutes § 53a-48 (a), and carrying a pistol without a permit in violation of
General Statutes § 29-35 (a). Section 29-35 (a) has been amended since the
time of the offense in the present case; see Public Acts 2016, No. 16-193,
§ 9; however, the change was technical in nature and not relevant to this
appeal. For purposes of clarity, we refer to the current revision of the statute.
4
Immediately following the denial of his motion to suppress, the defendant
was tried before a jury. The jury was unable to reach a unanimous verdict
and a mistrial was declared. In 2015, the defendant was tried a second time
before a jury, which resulted in his conviction.
5
In its brief, the state also asserts that the defendant was not in custody
when he was asked if he knew anything about the grocery store robbery.
At oral argument before this court, the state abandoned this claim.
6
The state contends that the record is inadequate because it is unclear
which version of Early’s question the trial court credited. Upon examination,
however, the differences between the versions of the question are not mate-
rial. Salkeld testified that ‘‘Early ask[ed] [the defendant] about a robbery
and he s[aid] he was involved,’’ and that he thought Early ‘‘might have said
something about a robbery on Homestead.’’ Early testified that he told the
defendant that he ‘‘want[ed] to interview him in regards to a robbery that
happened a few days prior.’’ Upon further questioning, Early agreed that
he ‘‘ask[ed] [the defendant] if he kn[ew] something about that robbery’’ and
later agreed that he ‘‘asked him if he knew something about the robbery at
Homestead . . . .’’ While the level of detail included in the question differed
between the various versions, it was not disputed that Early asked the
defendant if he knew about the robbery and that the defendant knew which
robbery Early was referring to in his question. The other circumstances
surrounding the question do not materially differ in the two detectives’
testimonies and the defendant presented no evidence at the hearing on the
motion to suppress.
7
On appeal, it is not clear whether the defendant is challenging the denial
of the motion to suppress testimony related to his statement at Keney Park
or he is only claiming that the statement was improper for purposes of
challenging the denial of his motion to suppress his written statement at
the police station. Even if we were to assume that it was improper for the
trial court to deny the defendant’s motion to suppress testimony related to
his statement at the park, any error was harmless. See State v. Gonzalez,
supra, 302 Conn. 306–307 (statement taken in violation of Miranda admitted
at trial subject to harmless error analysis; state bears burden of proving
harmlessness beyond reasonable doubt); see also State v. Brunetti, 279
Conn. 39, 77–78, 901 A.2d 1 (2006) (assuming error to allow testimony that
defendant asked for Bible in response to detective notifying him that police
had discovered inculpatory evidence, error harmless because of overwhelm-
ing evidence against defendant at trial, including subsequent confession),
cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). Beyond
the defendant’s statement in Keney Park, the jury was also presented with
the following evidence: the defendant’s written confession; the surveillance
video of the robbery; both victims’ testimony; Early’s testimony; Salkeld’s
testimony; the testimony of Theo Sullivan, who admitted to driving the
defendant and Harris to and from the robbery and scouting the grocery
store to determine if any customers were present prior to the robbery; and
the testimony of Harris, who admitted his involvement in the robbery and
identified the defendant as the shooter. The defendant’s statement at Keney
Park that he knew about the robbery was so limited in comparison to the
detailed statement he provided at the police station and the other evidence
presented at trial, that it would not have had a tendency to have impacted
the jury’s verdict. Additionally, the earlier statement did not contain any
information that was not also provided in the defendant’s later statement.
At most, any improperly admitted evidence related to the statement at Keney
Park was cumulative of the properly admitted evidence of the defendant’s
subsequent statement.
8
In his concurring opinion in Seibert, Justice Breyer advocated for a
different, good faith test in which both the first unwarned and the second
warned statements would be inadmissible unless the failure to warn in the
first instance was a good faith mistake. Missouri v. Seibert, supra, 542 U.S.
617–18. While we acknowledge that the plurality’s factor test is not binding
on this court, we find the plurality’s approach more persuasive because
by focusing on the ability of the defendant to meaningfully exercise his
constitutional rights, rather than the intent of the police, the plurality’s
approach is more closely calibrated to protect the rights underlying Miranda.
9
We acknowledge that the continuity in police personnel is more like the
circumstances found in Seibert than in Elstad, particularly in light of the
influence Early’s prior relationship with the defendant may have had on his
decision to speak with Early. No evidence in the record, however, indicates
that Early leveraged his relationship with the defendant to pressure him into
confessing during the interrogation at the police station. Further, nothing in
the record supports a conclusion that the detectives pressured the defendant
to provide a detailed confession by claiming he had no choice since he had
already confessed in Keney Park. On the contrary, the defendant indicated
in his written statement that he spoke to the detectives about the robbery
because he had seen on the news that the two victims ‘‘were in critical
condition and [he] felt really bad.’’