State v. Garrison ( 2022 )

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STATE OF CONNECTICUT v. ALEXANDER
A. GARRISON
(AC 43796)
Prescott, Suarez and Bishop, Js.
Syllabus
The defendant, who had been convicted, after a trial to the court, of the
crime of assault in the first degree, appealed to this court, claiming that
the trial court had improperly denied his motion to suppress certain
statements he made to police officers while he was in a hospital examin-
ing room where he was attached to an intravenous line. The defendant
claimed that the statements were inadmissible because they were the
product of custodial interrogation, and the police had not advised him
of his rights pursuant to Miranda v. Arizona (384 U.S. 436). The state
disagreed and claimed that, even if the police were required to advise
the defendant of his rights pursuant to Miranda, the admission of his
statements at trial was harmless beyond a reasonable doubt. The defen-
dant had visited P and another man at their apartment, where the men
consumed beer and whiskey and socialized. The men became highly
intoxicated. An argument ensued, and P punched the defendant in the
face. The defendant thereafter attacked P from behind and stabbed him
six times with a knife. The defendant then walked to a nearby hospital.
He was brought to the examining room, where he remained that evening
and into the early morning for about four and one-half hours. The
attending physician did not permit him to be discharged until he regained
sobriety. At various times, five different police officers conducted multi-
ple rounds of questioning of the defendant in his hospital room, during
which he made inculpatory statements. One of the officers also tran-
scribed the defendant’s version of the events at issue, placed him under
oath, instructed him to sign the written statement and then left the
hospital room. The officer returned later and informed the defendant
that he was free to leave the hospital but only if the medical staff allowed
him to do so. None of the officers ever advised the defendant of his
rights pursuant to Miranda or told him that he was under arrest or that
he could terminate the interviews at any time. The questioning by the
officers lasted, collectively, about one hour. Some of the officers wore
plain clothes; others were in uniform and visibly armed with their service
weapons. Several officers were in the defendant’s room at the same
time during three of the interviews. Hospital security guards and medical
staff also were in the room during some of the questioning. The trial
court denied the defendant’s motion to suppress, reasoning that he had
failed to prove that he was in custody for purposes of Miranda and
that a person in his position would have understood that his freedom
of action was curtailed to a degree associated with a formal arrest. Held:
1. Contrary to the trial court’s determination, the defendant was in police
custody for purposes of Miranda: the police did not explain to the
defendant that they were not holding or detaining him until more than
two hours after their first encounter with him, at no point did they
inform him that he was free to stop answering their questions, and the
police dominated atmosphere in his hospital room, with multiple officers
entering and exiting for numerous rounds of questioning at various
points throughout the evening, created a large and intimidating police
presence that could undermine an individual’s decision to remain silent;
moreover, this court was unpersuaded that the factors that militated
against a finding that the defendant was in custody outweighed the
coercive features of his detention, as five different police officers repeat-
edly questioned him for one hour, collectively, during the late evening
into the early morning hours, the surroundings in which the questioning
took place were not familiar to the defendant, who had a tenth grade
education and was intoxicated during the questioning, and, although
the defendant was alert enough to be able to converse with the police
and the medical staff, in light of the police dominated atmosphere, his
ability to request assistance from the medical staff to terminate the
police interrogation did not mean that a reasonable person in his position
would believe he was at liberty to do so; furthermore, a person in the
defendant’s position reasonably would have believed he was in police
custody to the degree associated with a formal arrest, as the defendant
was presented with inherently coercive pressures that included the
officers’ conduct, which conveyed a clear message of complete, unfet-
tered and temporally indefinite police control, the restraint the medical
attendants imposed on him for purposes of his treatment, and of which
the police took advantage, and the extensive duration of the questioning
by multiple police officers and their failure to advise him that he was
free to terminate the interviews.
2. The police officers’ questioning of the defendant constituted the functional
equivalent of interrogation for purposes of Miranda, and the police
were required to advise him of his rights pursuant to Miranda before
eliciting statements from him and should have known that their questions
reasonably were likely to elicit incriminating statements; the officers
repeatedly asked the defendant to provide his version of the altercation
with P, their questions were not objectively neutral and unrelated to
the altercation but implied that the defendant was involved in it and
explicitly called for responses regarding the altercation, for which he
was later prosecuted, and, despite the testimony of one of the officers
that he did not advise the defendant of his Miranda rights prior to
taking his statement because, in the officer’s mind, the defendant was
not a suspect, the officer’s subjective understanding of whether the
defendant was a suspect did not overcome the strong, highly relevant
relationship between the questions asked by all of the officers and the
crime committed.
3. Contrary to the state’s contention, the admission of the defendant’s incul-
patory statements at trial was not harmless beyond a reasonable doubt,
and, therefore, the defendant was entitled to a new trial: this court could
not say that the defendant’s statements were relatively benign or facially
innocuous, as the trial court explicitly relied on at least one of them in
determining that the state had proven beyond a reasonable doubt the
element of intent, a requisite element of the charge of assault in the first
degree; moreover, the state extensively cross-examined the defendant
at trial as to several of the statements he made to the police and recited
them to the jury at the conclusion of the trial; furthermore, the court’s
analysis of the defendant’s claim of self-defense may have been influ-
enced by many of the defendant’s statements, which incriminated him
with regard to various elements of that claim and may have had a
tendency to demonstrate that he ignored any duty to retreat he may
have had.
Argued January 10—officially released July 19, 2022
Procedural History
Information charging the defendant with the crimes
of assault in the first degree and tampering with physical
evidence, brought to the Superior Court in the judicial
district of Tolland, where the court, Bhatt, J., denied
the defendant’s motion to suppress certain evidence;
thereafter, the case was tried to the court, Seeley, J.;
subsequently, the court, Seeley, J., granted the defen-
dant’s motion for a judgment of acquittal as to the
charge of tampering with physical evidence; judgment
of guilty of assault in the first degree, from which the
defendant appealed to this court. Reversed; new trial.
Erica A. Barber, for the appellant (defendant).
Sarah Hanna, senior assistant state’s attorney, with
whom, on the brief, were Matthew C. Gedansky, state’s
attorney, and Jaclyn Preville, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Alexander A. Garrison,
appeals from the judgment of conviction, rendered fol-
lowing a bench trial, of one count of assault in the first
degree in violation of General Statutes § 53a-59 (a) (1).
The defendant claims that the trial court improperly
denied his motion to suppress statements that he made
to police officers while he was at a hospital because
the statements (1) were made as a result of custodial
interrogation and he had not been advised of his rights
pursuant to Miranda v. Arizona, 384 U.S. 436, 478–79,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), at the time he
made the statements, and (2) were involuntarily given.1
We agree with the defendant that the police obtained
his statements as a result of custodial interrogation
without providing to the defendant the advisement
required by Miranda, and, therefore, the court improp-
erly denied his motion to suppress. We further agree
that the defendant was prejudiced by the admission of
his statements and, accordingly, reverse the judgment
of conviction and remand the case for a new trial.
Before setting forth the relevant facts and procedural
history, we first set forth the applicable standard of
review of a trial court’s determination as to whether a
person was ‘‘in custody’’ for Miranda purposes. ‘‘The
trial court’s determination of the historical circum-
stances surrounding the defendant’s interrogation
[entails] findings of fact . . . which will not be over-
turned unless they are clearly erroneous.’’ (Internal quo-
tation marks omitted.) State v. Mangual, 311 Conn. 182,
197, 85 A.3d 627 (2014); see also State v. Edmonds, 323
Conn. 34, 39, 145 A.3d 861 (2016) (‘‘we must, of course,
defer to [a] trial court’s factual findings’’). If, however,
‘‘a question of fact is essential to the outcome of a
particular legal determination that implicates a defen-
dant’s constitutional rights . . . and the credibility of
witnesses is not the primary issue’’; (internal quotation
marks omitted) State v. Castillo, 329 Conn. 311, 321,
186 A.3d 672 (2018); ‘‘our usual deference . . . is quali-
fied by the necessity for a scrupulous examination of
the record to ascertain whether [each] finding is sup-
ported by substantial evidence . . . .’’ (Internal quota-
tion marks omitted.) State v. Edmonds, supra, 39; see
also State v. Mullins, 288 Conn. 345, 362, 952 A.2d 784(2008) (employing same standard of review over trial
court’s conclusion that defendant was not subjected
to custodial interrogation), overruled in part on other
grounds by State v. Polanco, 308 Conn. 242, 61 A.3d
1084 (2013). Thus, ‘‘[i]n order to determine the [factual]
issue of custody . . . we will conduct a scrupulous
examination of the record . . . in order to ascertain
whether, in light of the totality of the circumstances,
the trial court’s finding is supported by substantial evi-
dence.’’ (Internal quotation marks omitted.) State v.
Mangual, supra, 197.
Our Supreme Court in Edmonds described this stan-
dard as requiring ‘‘a more probing factual review
. . . .’’ (Internal quotation marks omitted.) State v.
Edmonds, supra, 323 Conn. 39. Specifically, our
Supreme Court explained, in scrupulously examining
the record to ascertain whether the court’s finding is
supported by substantial evidence, ‘‘we are bound to
consider not only the trial court’s factual findings, but
also . . . we must take account of any undisputed
evidence that does not support the trial court’s ruling
. . . but that the trial court did not expressly discredit.’’
(Emphasis added; internal quotation marks omitted.)
Id. In Edmonds, our Supreme Court reviewed the trial
court’s factual findings, as well as the undisputed testi-
mony and evidence in the record, to resolve factual
ambiguities in the court’s decision.2 See id., 44–46.
‘‘The ultimate inquiry as to whether, in light of [the]
factual circumstances, a reasonable person in the defen-
dant’s position would believe that he or she was in
police custody of the degree associated with a formal
arrest . . . calls for application of the controlling legal
standard to the historical facts [and] . . . therefore,
presents a . . . question of law . . . over which our
review is de novo. . . . In other words . . . we exer-
cise plenary review over the ultimate issue of custody.’’
(Citation omitted; internal quotation marks omitted.)
State v. Mangual, supra, 311 Conn. 197.
We now turn to the present case. The following proce-
dural history and facts, either found by the court, Bhatt,
J., and set forth in its memorandum of decision on the
defendant’s motion to suppress, or found by the court,
Seeley, J., and set forth in its memorandum of decision,
and as ‘‘supplemented by the undisputed [evidence]’’
in the record; State v. Edmonds, supra, 323 Conn. 39;
are relevant to our resolution of this appeal. During the
early evening hours of June 22, 2018, the defendant
arrived at the apartment of his friend, Timothy Murphy,
located in Vernon. William Patten, Murphy’s cousin,
also resided in the apartment. Murphy had invited the
defendant to sleep at the apartment because the defen-
dant had been staying at a local shelter. Murphy, Patten,
and the defendant initially watched television, talked,
and played guitar in the living room of the apartment,
during which time they consumed beer and whiskey.
At approximately 6 p.m., Murphy, Patten, and the
defendant decided to move to the lawn outside of the
apartment. They built a fire pit and continued to drink
beer and whiskey for several hours. Eventually, the men
became highly intoxicated.3 Later in the evening, Patten
and the defendant began to argue, exchanging insults
and offensive language. Eventually, the disagreement
became physical; Patten and the defendant began to
‘‘ ‘tussl[e],’ ’’ pushed one another and, at some point,
fell onto the ground near the fire pit. Patten gained
an advantage over the defendant and punched him in
the face.
After Patten punched the defendant, the pair stopped
fighting, stood up from the ground, and sat around the
fire once more. After a few minutes, the defendant
attacked Patten from behind and, specifically, stabbed
Patten in his back, front shoulder area, and arm using
a Smith and Wesson folding knife.4 In response, Patten
grabbed the defendant’s shirt and arm, pulled the defen-
dant over his shoulder, and kicked the defendant away.
This second altercation lasted approximately thirty sec-
onds.
After the defendant stabbed Patten, Patten reentered
his apartment. While Patten was inside, Murphy con-
fronted the defendant and asked him what had hap-
pened. The defendant did not answer Murphy’s ques-
tion; instead, he stated repeatedly that he had blood on
his body.
Meanwhile, Patten attempted to tend to his wounds
inside of the apartment. He observed exposed muscle
and tissue on his left arm and was unable to stop his
wounds from bleeding. Patten then walked to Rockville
General Hospital in Vernon (hospital), which was
located approximately 500 yards from the apartment.
Once he reached the hospital, he sat down outside of
the building. He remained outside of the hospital until
a hospital employee found him at approximately 9:45
p.m. Patten’s injuries were determined to be life threat-
ening, as he had lost approximately 30 to 40 percent
of his blood volume. He later was transferred via a Life
Star helicopter to Saint Francis Hospital and Medical
Center in Hartford to receive additional care.
Back at the apartment and at some point after Patten
had reentered the apartment following the second alter-
cation, Murphy went inside to look for Patten. Murphy
became nervous, however, when he observed a large
amount of blood in the bathroom and could not find
Patten. Murphy returned to the fire pit area and once
again asked the defendant what had happened. Murphy
additionally told the defendant to leave and said that
he was going to call the police.
Before the defendant left the property, he threw the
knife into an adjacent yard.5 The defendant then walked
to the hospital and arrived at approximately 9:42 p.m.
A registered nurse, Sarah Hoyle, transported the defen-
dant in a wheelchair to a hospital examining room and
began to evaluate him. The defendant reported to the
hospital staff that he had been struck in the nose and
had sustained a brief loss of consciousness. He also
informed the hospital staff that he was experiencing
nasal pain and nasal swelling. The defendant was admit-
ted, and the hospital conducted computed tomography
(CT) imaging on his nose. The CT imaging revealed that
the defendant had sustained a broken nose.
Due to the defendant’s level of intoxication, the
attending physician on duty that evening, Sarah Rajchel,
mandated that the defendant be discharged from the
hospital only after he became clinically sober. Thus,
medical staff prohibited the defendant from leaving the
hospital until he regained sobriety. Although the defen-
dant ‘‘clearly [was] intoxicated,’’ he was able to commu-
nicate with medical staff and others.
The defendant changed into a hospital gown, which
he wore throughout the evening, and the hospital staff
collected his clothes and other belongings and placed
them into bags. At approximately 11 p.m. that evening,
police officers, who had arrived at the hospital earlier in
the evening, requested that the defendant sign a consent
form, allowing the police to seize and search his cloth-
ing. After the defendant signed the consent form, the
police seized his clothing.
Several police officers—including Officer Ethan Rob-
erge, Officer Thomas Bugbee, Detective Charles Hick-
ing, Detective Michael Patrizz, Sergeant Christopher
Pryputniewicz, and Detective Sergeant David Hatheway
of the Vernon Police Department—were dispatched to
the hospital throughout the evening. Between approxi-
mately 9:42 p.m. on June 22, 2018, the time at which
the defendant arrived at the hospital, and shortly before
2:30 a.m. on June 23, 2018, the time at which he was
discharged from the hospital, five of the officers ques-
tioned the defendant at various points during the eve-
ning. The multiple rounds of police questioning of the
defendant collectively lasted approximately one hour.
During three of the interviews, several police officers
stood in the defendant’s hospital room at the same time.
Roberge, the first officer to arrive at the hospital,
was dispatched to the hospital at approximately 9:42
p.m. and arrived shortly thereafter. He wore a police
uniform, and his service firearm was visible. Before
entering the defendant’s hospital room, Roberge unsuc-
cessfully attempted to interview Patten, who, at that
time, was unconscious in a nearby hospital room. Rob-
erge then entered the defendant’s hospital room and
questioned the defendant from approximately 9:49 p.m.
until 9:54 p.m.6 Although Roberge was the only police
officer in the hospital room during this interview, two
hospital security guards also were present in the room.
Medical staff were present in the room as well. At no
point prior to or during his conversation with the defen-
dant did Roberge advise the defendant of his Miranda
rights or inform the defendant that he was free to leave.
At the conclusion of their conversation, Roberge
exited the defendant’s hospital room and, upon exiting
the room, had a conversation with two other officers
on the premises.7 At some point after he exited the
defendant’s room, Roberge then entered Patten’s hospi-
tal room to attempt to speak with him. Before he asked
Patten any questions, Roberge advised Patten of his
rights pursuant to Miranda.
At approximately 9:47 p.m., Hicking arrived at the
hospital, dressed in plain clothes. His service weapon
was not visible. Hicking entered the defendant’s room,
asked the nurse in the room if he could speak with
the defendant, and subsequently began to question the
defendant.8 The defendant recounted his altercation
with Patten to Hicking, and Hicking asked the defendant
clarifying questions as to his version of events. During
the conversation, the defendant stated, inter alia, ‘‘I
take shit from no one.’’ At some point, nursing staff
interrupted the conversation between Hicking and the
defendant to perform medical duties. At no point prior
to or during his conversation with the defendant did
Hicking advise the defendant of his Miranda rights or
inform the defendant that he was free to leave.
Bugbee also was dispatched to the hospital and
arrived in uniform, with his service weapon visible.
Upon his arrival, Bugbee conferred with the other offi-
cers present at the hospital and subsequently entered
the defendant’s hospital room. Bugbee entered the
defendant’s room as Hicking was questioning the defen-
dant about the altercation. Hicking ordered Bugbee to
take a statement from the defendant, then exited the
room. Bugbee told the defendant that he would take a
statement, that the defendant should tell him what had
happened, and that he would write down the defen-
dant’s version of events.9 During this initial interaction,
the defendant stated to Bugbee, inter alia, ‘‘I don’t flight,
I fight,’’ ‘‘I’m a peaceable person until you get in my
face, then I fuck you up,’’ and, ‘‘I take shit from no
one.’’ Additionally, during this interaction between
Bugbee and the defendant, Hoyle entered the defen-
dant’s hospital room and inserted an intravenous (IV)
line into the defendant.10 After approximately thirty
minutes, during which the defendant recounted the
altercation and Bugbee transcribed the defendant’s ver-
sion of events, Bugbee placed the defendant under oath,
instructed the defendant to sign the written statement
that he had transcribed, and exited the hospital room.
At no point prior to or during this conversation did
Bugbee advise the defendant of his Miranda rights or
inform the defendant that he was free to leave.
At approximately 11:07 p.m., Bugbee reentered the
defendant’s room alongside Hatheway, who also had
responded to the hospital. Hatheway was wearing plain
clothes, but his badge and service weapon were visible.
Hatheway questioned the defendant about the defen-
dant’s version of events, and Bugbee remained in the
room during the interview.11 At no point prior to or
during his conversation with the defendant did Hathe-
way advise the defendant of his Miranda rights or
inform the defendant that he was free to leave.
At approximately 12:09 a.m., Bugbee informed the
defendant for the first time that, ‘‘as far as the police
were concerned,’’ the defendant was free to leave the
hospital, but only if hospital personnel allowed him to
leave. At 12:26 a.m., Bugbee again reiterated that, as
far as the police were concerned, the defendant was
free to leave, subject to the hospital’s directive that the
defendant could not leave the hospital until after he
became clinically sober.12 The defendant stated to
Bugbee that he understood the hospital directive that
he could not leave until after he became sober. Bugbee
remained at the hospital until he was informed by police
Lieutenant Lucas Gallant that the defendant would not
be arrested that evening. Bugbee did not advise the
defendant of his Miranda rights at any point during the
evening.
Patrizz arrived at the hospital after first responding
to the scene of the apartment. He wore plain clothes,
but his badge and service weapon were visible. At
approximately 1:30 a.m., he and Hicking entered the
defendant’s room, and Patrizz began to question the
defendant.13 Patrizz asked the defendant to provide his
version of events. After approximately five to ten
minutes, the defendant expressed frustration at the fact
that he had to repeat his story multiple times and indi-
cated that he did not want to speak to the officers
anymore. Patrizz and Hicking left the hospital at approx-
imately 2 a.m. At no point prior to or during their conver-
sation did Patrizz advise the defendant of his Miranda
rights or inform the defendant that he was free to leave.
The defendant provided several statements, including
inculpatory admissions, to the police throughout the
evening. The defendant recounted his version of events.
He told the police that he ‘‘wasn’t in the right’’ for
stabbing Patten, then stated, ‘‘I mean, look at what he
did,’’ while pointing at his nose. He also told the police,
‘‘I take shit from no one, you swing at me, I’m going
to end you.’’ The defendant additionally stated, ‘‘I’m a
peaceable person until you get in my face, then I’ll fuck
you up,’’ ‘‘[w]hen it comes to fight or flight, I fight,’’
and, ‘‘[h]onestly, I can’t take shit from no one.’’ The
defendant was not advised of his Miranda rights at any
point while he was at the hospital.
The defendant was arrested on June 24, 2018, and
arraigned the following day on June 25, 2018. The defen-
dant was charged with one count of assault in the first
degree in violation of § 53a-59 (a) (1) and one count of
tampering with physical evidence in violation of Gen-
eral Statutes § 53a-155.
On April 22, 2019, the defendant moved to suppress
portions of the statements that he had given to the
police at the hospital. Specifically, he sought to sup-
press the verbal statements that he made to Hicking,
Bugbee, Hatheway, and Patrizz.14 He also sought to sup-
press the written statement transcribed by Bugbee. The
defendant contended, inter alia, that the statements
were inadmissible because they were the product of
custodial interrogation, and he had not been advised
of his rights pursuant to Miranda v. Arizona, supra,384 U.S. 478–79.15 In memoranda of law in support of
his motion to suppress, the defendant argued that a
reasonable person in his position would not have
believed he was free to leave and that, under the circum-
stances, he was in custody for purposes of Miranda.
Because the police had not advised him of his Miranda
rights before eliciting his statements, the defendant con-
tended that his statements were inadmissible. In its
response to the defendant’s motion to suppress, dated
May 20, 2019, the state maintained that the defendant
neither was in custody, nor subjected to police interro-
gation at the hospital.
The court, Bhatt, J., held a hearing on the defendant’s
motion to suppress on May 8, 9 and 13, 2019. Following
the conclusion of the hearing, the court issued a memo-
randum of decision, dated June 5, 2019, denying the
defendant’s motion to suppress the statements. The
court concluded that the defendant had failed to prove
that a reasonable person in his position would have
understood his freedom of action to be curtailed to a
degree associated with a formal arrest.
In so concluding, the court noted that the police did
not transport the defendant to, or themselves physically
restrain the defendant at, the hospital. The court stated
that the police did not request that medical staff cease
administering treatment to the defendant or prolong his
treatment; by contrast, the police ‘‘appeared to defer’’
to the medical staff’s treatment plan. The court also
noted that the defendant conversed freely with the med-
ical staff and police officers who entered his hospital
room and found that the defendant was ‘‘coherent, alert,
oriented, and able to communicate fully and effectively’’
throughout his time at the hospital. The court further
noted that, although the police did not inform the defen-
dant that he was free to leave prior to 12:09 a.m. or
that he could terminate the interviews, the police did
not tell the defendant that he was prohibited from leav-
ing when the hospital staff was ready to discharge him.
The court stated that the defendant had expressed a
willingness and an eagerness to talk to the police and
did not indicate to medical personnel or anyone else
that he wanted to terminate the interviews. Finally, the
court noted that the defendant eventually terminated
the interviews at the end of the night, at which point
the police ceased asking him questions.
The court acknowledged that five different police
officers ‘‘questioned [the defendant] repeatedly’’ during
the approximately four and one-half hours between 9:40
p.m. and 2:20 a.m. and that multiple other police officers
were present both in the defendant’s hospital room and
at the hospital generally throughout the evening.16 The
court also noted that the police officers interviewed
the defendant for a total of approximately one hour
between 9:40 p.m. and 2:20 a.m.17 The court acknowl-
edged that, although some of the officers who inter-
viewed the defendant were wearing plain clothes, multi-
ple officers were in uniform, and multiple officers
visibly were armed with service weapons. The court
additionally acknowledged that the defendant was
‘‘physically confined to the hospital until medical staff
deemed that it was medically appropriate for him to be
discharged,’’ and that, at the beginning of the evening,
a nurse had connected the defendant to an IV. The
court noted that the medical staff had obtained the
defendant’s clothing, which the police seized and took
into custody with the defendant’s consent.
Further, the court found that the police did not inform
the defendant that he was free to leave until 12:09 a.m.
The court acknowledged that the police never informed
the defendant that he was a suspect or that he could
terminate their questioning of him. The court also noted
that the defendant was intoxicated, had a tenth grade
education and, in the past, may have been taking medi-
cation for attention deficit hyperactivity disorder,
depression, and anxiety. The court, however, concluded
that these circumstances did not render the defendant
‘‘especially vulnerable to police intimidation’’; State v.
Jackson, 304 Conn. 383, 419, 40 A.3d 290 (2012); or
create a situation in which a reasonable person in his
position would have believed that the police restraint
on his freedom of movement was akin to restraint asso-
ciated with a formal arrest. Accordingly, the court deter-
mined that the defendant had failed to meet his burden
of proving that he was in custody for purposes of
Miranda.18
Subsequently, the court, Seeley, J.,19 conducted a
bench trial over the course of multiple nonconsecutive
days in June and July, 2019. At trial, the defendant
claimed, among other things, that he was acting in self-
defense when he injured Patten. Following the conclu-
sion of the trial, the court found the defendant guilty
of assault in the first degree.20 In its written decision,
dated August 26, 2019, the court concluded that the
state had proven each element of the crime of assault
in the first degree beyond a reasonable doubt.21 With
respect to the intent element—that is, that the defen-
dant possessed the specific intent to cause serious phys-
ical injury to Patten—the court determined that the
defendant’s statement to the police that he was ‘‘a
peaceable person until [someone got] in [his] face, then
[he would] fuck [that person] up,’’ supported a conclu-
sion that he had intended to cause serious physical
injury to Patten. The court also pointed to the circum-
stances of the stabbing, including that the defendant
approached Patten from behind and stabbed him six
times, and that the stab wounds, some of which were
located near Patten’s vital organs, were deep, as evi-
dence from which the court could infer that the defen-
dant intended to cause serious physical injury. With
respect to the causation and deadly weapon elements
of § 53a-59 (a) (1)—that is, that the defendant caused
serious physical injury to Patten and did so by means
of a dangerous instrument—the court determined that
the defendant’s admission to the police that he had
stabbed Patten with a knife indicated that the defendant
caused serious physical injury to Patten by means of
a dangerous instrument. The court also rejected the
defendant’s claim of self-defense, finding that the state
had disproven beyond a reasonable doubt that the
defendant subjectively believed Patten was about to
use deadly physical force against him such that the
defendant’s use of potentially deadly physical force
against Patten was justified.
The defendant subsequently was sentenced to ten
years of incarceration, execution suspended after seven
years, and five years of probation. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
The defendant claims on appeal that he was entitled
to suppression of the statements he made to the police
at the hospital because they were the result of custodial
interrogation and that he had not been advised of his
Miranda rights before the police elicited the state-
ments. The defendant specifically contends that the
court improperly concluded that he had failed to estab-
lish that he was in custody for purposes of Miranda
when he made the statements to Hicking, Bugbee,
Hatheway, and Patrizz. He argues that a reasonable
person in his position would have understood that his
freedom to terminate the police interviews was
restricted to a degree associated with a formal arrest.
We agree with the defendant that his statements should
have been suppressed.
I
We first address the defendant’s contention that he
was in custody for purposes of Miranda. We begin by
setting forth the relevant legal principles. ‘‘Although
[a]ny [police] interview of [an individual] suspected of
a crime . . . [has] coercive aspects to it . . . only an
interrogation that occurs when a suspect is in custody
heightens the risk that statements obtained therefrom
are not the product of the suspect’s free choice. . . .
This is so because the coercion inherent in custodial
interrogation blurs the line between voluntary and
involuntary statements . . . . [T]he court in Miranda
was concerned with protecting defendants against
interrogations that take place in a police-dominated
atmosphere, containing inherently compelling pres-
sures [that] work to undermine the individual’s will to
resist and to compel him to speak [when] he would not
otherwise do so freely . . . .’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Mangual, supra,
311 Conn. 191. Thus, ‘‘[i]t 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, [supra,384 U.S. 444]. Two threshold conditions must be satis-
fied in order to [require] the warnings constitutionally
[mandated] by Miranda: (1) the defendant must have
been in custody; and (2) the defendant must have been
subjected to police interrogation.’’ (Internal quotation
marks omitted.) State v. Gonzalez, 302 Conn. 287, 294,
25 A.3d 648 (2011). ‘‘[E]ven patently voluntary state-
ments taken in violation of Miranda must be excluded
from the prosecution’s case . . . .’’ (Internal quotation
marks omitted.) State v. Mangual, supra, 191 n.8.
‘‘By adequately and effectively appris[ing] [a suspect]
of his rights and reassuring the suspect that the exercise
of those rights must be fully honored, the Miranda
warnings combat [the] pressures inherent in custodial
interrogations. . . . In so doing, they enhance the
trustworthiness of any statements that may be elicited
during an interrogation. . . . Consequently, police offi-
cers are not required to administer Miranda warnings
to everyone whom they question . . . [but] rather, they
must provide such warnings only to persons who are
subject to custodial interrogation.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Id., 191–92.
‘‘As used in . . . Miranda [and its progeny], custody
is a term of art that specifies circumstances that are
thought generally to present a serious danger of coer-
cion. . . . In determining whether a person is in cus-
tody in this sense . . . the United States Supreme
Court has adopted an objective, reasonable person test
. . . the initial step [of which] is to ascertain whether,
in light of the objective22 circumstances of the interroga-
tion . . . a reasonable person [would] have felt [that]
he or she was not at liberty to terminate the interroga-
tion and [to] leave. . . . Determining whether an indi-
vidual’s freedom of movement [has been] curtailed,
however, is simply the first step in the analysis, not the
last. Not all restraints on freedom of movement amount
to custody for purposes of Miranda. [Accordingly, the
United States Supreme Court has] decline[d] to accord
talismanic power to the freedom-of-movement inquiry
. . . and [has] instead asked the additional question [of]
whether the relevant environment presents the same
inherently coercive pressures as the type of station
house questioning at issue in Miranda.’’ (Citations omit-
ted; footnote added; internal quotation marks omitted.)
Id., 193.
‘‘Of course, the clearest example of custody for pur-
poses of Miranda occurs when a suspect has been
formally arrested. As Miranda makes clear, however,
custodial interrogation includes questioning initiated
by law enforcement officers after a suspect has been
arrested or otherwise deprived of his freedom of action
in any significant way. . . . Thus, not all restrictions
on a suspect’s freedom of action rise to the level of
custody for Miranda purposes; in other words, the free-
dom-of-movement test identifies only a necessary and
not a sufficient condition for Miranda custody. . . .
Rather, the ultimate inquiry is whether a reasonable
person in the defendant’s position would believe that
there was a restraint on [his] freedom of movement of
the degree associated with a formal arrest.’’ (Citations
omitted; emphasis altered; internal quotation marks
omitted.) Id., 194. ‘‘The defendant bears the burden
of proving custodial interrogation.’’ (Internal quotation
marks omitted.) State v. Marsan, 192 Conn. App. 49,
67, 216 A.3d 818, cert. denied, 333 Conn. 939, 218 A.3d
1049 (2019).
Our Supreme Court in Mangual set forth a nonex-
haustive list of factors that courts may consider in
determining whether a suspect was in custody for pur-
poses of Miranda; see State v. Mangual, supra, 311
Conn. 196–97; and noted that the ultimate determination
‘‘must be based on the circumstances of each case,’’ as
opposed to a ‘‘definitive list of factors . . . .’’ (Internal
quotation marks omitted.) Id., 196. These factors
include ‘‘(1) the nature, extent and duration of the ques-
tioning; (2) whether the suspect was handcuffed or
otherwise physically restrained; (3) whether officers
explained that the suspect was free to leave or not
under arrest; (4) who initiated the encounter; (5) the
location of the interview; (6) the length of the detention;
(7) the number of officers in the immediate vicinity of
the questioning; (8) whether the officers were armed;
(9) whether the officers displayed their weapons or
used force of any other kind before or during ques-
tioning; and (10) the degree to which the suspect was
isolated from friends, family and the public.’’ Id., 197.
Our Supreme Court explained in Jackson that,
‘‘[w]hen a defendant has been questioned by the police
in a hospital, factors that [our Supreme] [C]ourt has
considered in determining whether [a] defendant was
in custody for Miranda purposes include whether the
police physically restrained the defendant in any way
or ordered the medical attendants to restrain him physi-
cally . . . whether the police took advantage of an
inherently coercive situation created by any physical
restraint that the medical attendants may have [imposed
on] him for purposes of his treatment . . . whether the
defendant was able to converse with . . . other people,
express annoyance or request assistance from them
. . . and the duration of the questioning. . . . Other
factors that courts have considered [when a defendant
has been questioned by the police in a hospital] include
whether the police took a criminal suspect to the hospi-
tal from the scene of a crime, monitored the patient’s
stay, stationed themselves outside the door, [or]
arranged an extended treatment schedule with the doc-
tors . . . and the time of day, the mood and mode of
the questioning, whether there were indicia of formal
arrest, and the defendant’s age, intelligence and mental
makeup.’’ (Citations omitted; internal quotation marks
omitted.) State v. Jackson, supra, 304 Conn. 417–18. We
emphasize that ‘‘no one factor in a custody analysis is
outcome determinative.’’ State v. Mangual, supra, 311
Conn. 208.
Various courts have concluded that suspects, ques-
tioned by the police in a hospital or similar settings,
such as psychiatric facilities or ambulances, were in
custody for purposes of Miranda under the particular
facts of the cases before them. See, e.g., People v. Man-
gum, 48 P.3d 568, 570–72 (Colo. 2002) (defendant was
in custody when police handcuffed him—not because
he was under arrest but instead ‘‘for his own protec-
tion’’—transported him to hospital, and questioned him
for two to three hours while he remained handcuffed);
State v. Lowe, 81 A.3d 360, 366 (Me. 2013) (defendant
questioned by state trooper while in hospital after car
accident was in custody after pause in questioning dur-
ing which trooper gained sufficient information to con-
sider defendant suspect in criminal case before resum-
ing questioning); People v. Tanner, 31 App. Div. 2d 148,
149, 295 N.Y.S.2d 709 (1968) (defendant was in custody
when questioned for one hour by police in hospital,
where he was connected to IV tube and was unable to
move); Commonwealth v. D’Nicuola, 448 Pa. 54, 55,
57–58, 292 A.2d 333 (1972) (defendant who had been
admitted to hospital after apparent suicide attempt was
in custody when questioned by police in hospital room);
Commonwealth v. Whitehead, 427 Pa. Super. 362, 366,
368–69, 629 A.2d 142 (1993) (defendant was in custody
when police questioned him in hospital while he was
on gurney receiving care); Scales v. State, 64 Wis. 2d
485, 492, 219 N.W.2d 286 (1974) (defendant was in cus-
tody when police questioned him in hospital room after
arresting him there on charges related to questioning);
see also Reinert v. Larkins, 379 F.3d 76, 80, 87 (3d Cir.
2004) (defendant was in custody when police officer
questioned him in ambulance), cert. denied sub nom.
Reinert v. Wynder, 546 U.S. 890, 126 S. Ct. 173, 163 L.
Ed. 2d 201 (2005); United States v. Hallford, 280 F.
Supp. 3d 170, 173–77, 179 (D. D.C. 2017) (defendant
was in custody when questioned by United States Secret
Service agents in physician’s lounge room of psychiatric
hospital, where defendant involuntarily was commit-
ted), aff’d, 756 Fed. Appx. 1 (D.C. Cir. 2018); People v.
Turkenich, 137 App. Div. 2d 363, 365, 367, 529 N.Y.S.2d
385 (1988) (defendant with diminished mental capacity
was in custody when questioned by police in psychiatric
ward of hospital, where defendant was confined pursu-
ant to involuntary commitment order).
In concluding that these suspects were in custody
when they were questioned by the police in a hospital
or a similar environment, the courts considered
whether the relevant factual circumstances supported
a determination that a reasonable person in the defen-
dant’s position would have believed he was in custody
for Miranda purposes. See, e.g., United States v. Hall-
ford, supra, 280 F. Supp. 3d 180 (‘‘when determining
whether a reasonable person would have felt free to
terminate the interrogation and leave, courts must
examine all of the circumstances surrounding the inter-
rogation’’ (internal quotation marks omitted)); People
v. Mangum, supra, 48 P.3d 571 (‘‘[a] court must examine
all of the circumstances surrounding the interrogation
to determine whether there was a restraint on freedom
of movement of the degree associated with a formal
arrest’’); see also State v. Mangual, supra, 311 Conn.
196. For example, in People v. Tanner, supra, 31 App.
Div. 2d 149–50, the court determined, based on the
factual circumstances surrounding the interrogation,
that a defendant was in custody when he was ques-
tioned by the police in his hospital room. The court
identified the various factual circumstances that
informed its conclusion—that the defendant was ques-
tioned for one hour by various officers, that multiple
police officers were present for the questioning, and
that the defendant physically was incapable of moving
because he was connected to an IV tube and had suf-
fered a gunshot wound to his leg. See id., 149–50. Thus,
despite the defendant’s being ‘‘immobilized by factors
entirely independent of any police activity . . . [the
court concluded that] for all practical purposes,’’ the
defendant’s freedom of movement was restricted; id.;
and that the police had interrogated the defendant in
a way that ‘‘indicate[d] that [the interrogation] was cus-
todial.’’ Id., 150.
With these legal principles in mind, we turn to the
merits of the defendant’s contention that he was in
custody for purposes of Miranda when the police ques-
tioned him in the hospital. This contention first requires
us to ascertain whether a reasonable person in the
defendant’s position would have believed he was at
liberty to terminate the police questioning and that his
freedom of movement was restricted by the police.23
See, e.g., State v. Mangual, supra, 311 Conn. 193. If we
conclude that a reasonable person in the defendant’s
position would have believed he was at liberty to termi-
nate the police questioning and that his freedom of
movement was not restricted by the police, the inquiry
is over, and the defendant has failed to meet his burden
of establishing that he was in custody for purposes of
Miranda. See id., 198. If, however, we conclude that a
reasonable person in the defendant’s position would
not have believed he was at liberty to terminate the
police questioning and that his freedom of movement
was restricted by the police, we proceed to the second
step of the inquiry to determine whether a reasonable
person in the defendant’s position would have believed
that the police restraint on his freedom of movement
was ‘‘akin to the restraint associated with a formal
arrest.’’ Id.Having scrupulously examined the record, we first
conclude, in light of the objective circumstances sur-
rounding the police interviews of the defendant, that a
reasonable person in the defendant’s position would
not have believed he was at liberty to terminate the
interrogation. Although the police did not physically
restrain the defendant or instruct medical personnel to
restrain him physically, the police took advantage of
the restraint that the medical attendants imposed on the
defendant for purposes of his treatment. The defendant
initially was attached to an IV line. Rajchel, the
attending physician who provided medical care to the
defendant, had mandated that the defendant be dis-
charged from the hospital only after he became sober.
Accordingly, the medical staff forbade the defendant
from leaving the hospital premises until he regained
sobriety. This directive was communicated to the defen-
dant by a police officer, Bugbee. See footnote 12 of this
opinion.
Significantly, and despite the hospital staff’s restraint
of the defendant, at no point during the evening did the
police inform him that he was free to terminate their
interviews at any time. At no point during the evening
did the police tell the defendant that he could stop
answering their questions if he so chose. Contra State
v. Pinder, 250 Conn. 385, 412, 736 A.2d 857 (1999) (find-
ing of custody less likely in case in which ‘‘it was made
very clear to [the defendant] that . . . he could stop
answering questions anytime he chose on at least three
occasions’’ (internal quotation marks omitted)). ‘‘[T]he
most obvious and effective means of demonstrating that
a suspect has not been taken into custody . . . is for
the police to inform the suspect that an arrest is not
being made and that the suspect may terminate the
interview at will. . . . When . . . a detained suspect
is not so informed but, instead, is kept in the dark about
the purpose and duration of the detention, he is far
more likely to view his seizure by the police as the
functional equivalent of an arrest.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
State v. Mangual, supra, 311 Conn. 204–205. Prior to
12:09 a.m., the police did not inform the defendant that,
in the absence of a hospital directive to the contrary,
he was free to leave.24 In other words, the police did
not explain to the defendant that they were not holding
or detaining him in any way until more than two hours
after their first encounter with him—which the police,
not the defendant, initiated.
Moreover, the officers in the present case created a
‘‘large and intimidating police presence’’; id., 208; that
‘‘transformed [the hospital] into the type of police domi-
nated atmosphere that could undermine an individual’s
decision to remain silent.’’ State v. Castillo, 165 Conn.
App. 703, 717, 140 A.3d 301 (2016), aff’d, 329 Conn.
311, 186 A.3d 672 (2018). In addition to the five police
officers who questioned the defendant, various other
officers remained in the defendant’s hospital room dur-
ing periods of questioning such that the defendant was
surrounded by multiple police officers during numerous
rounds of questioning. See State v. Mangual, supra,
311 Conn. 201 (presence of seven officers on premises
supported finding of custody). At least one other officer
who did not interview the defendant, Pryputniewicz,
was present in the defendant’s hospital room during
questioning. ‘‘[T]here is an increased likelihood that a
reasonable person in the defendant’s position would
have been intimidated by the considerable police pres-
ence’’; id.; in his hospital room because multiple officers
were in his room, at the same time, while he was ques-
tioned. See id.Additionally, although the record does not reflect
that an officer formally was stationed outside of the
defendant’s hospital room, multiple officers entered
and exited the defendant’s room at various points
throughout the evening, and Bugbee remained on the
premises for a significant portion of the evening. At
one point during the evening, the defendant summoned
Bugbee, who was outside of his room, indicating that
the defendant was aware of at least Bugbee’s presence
in the vicinity of his hospital room. As our Supreme
Court has stated, ‘‘the presence of a large number of
visibly armed law enforcement officers goes a long way
[in rendering a particular location] a police-dominated
atmosphere.’’ (Internal quotation marks omitted.) Id.Thus, the police dominated atmosphere that the police
created supports a conclusion that a reasonable person
in the defendant’s position would have believed he was
not at liberty to terminate the police questioning.
Further, during the period of approximately four and
one-half hours during which the defendant was sub-
jected to the hospital’s directive not to leave the prem-
ises, five different police officers repeatedly questioned
the defendant about his version of events. The police
collectively questioned the defendant for approximately
one hour. The questioning was not ‘‘limited’’ or ‘‘brief’’
in duration; State v. DesLaurier, 230 Conn. 572, 581,
646 A.2d 108 (1994); like questioning that lasts a mere
few minutes; see id.; or takes place over the course of
ten or fifteen consecutive minutes. See State v. Kirby,
280 Conn. 361, 396, 908 A.2d 506 (2006). Unlike in the
Illinois Appellate Court’s decision in People v. Vasquez,
393 Ill. App. 3d 185, 913 N.E.2d 60 (2009), which our
Supreme Court cited in State v. Jackson, supra, 304
Conn. 418, and in which the Illinois Appellate Court
determined that police interrogation of a defendant in
a hospital for thirty-five minutes during the early after-
noon did not support a finding of custody; see People
v. Vasquez, supra, 187–90; the collective one hour of
questioning in the present case took place over the
course of a ‘‘prolonged’’ period; State v. Jackson, supra,
418; of more than four hours during the late evening
into the early morning hours.
Additionally, the questioning took place in a hospital
room, as opposed to surroundings that were ‘‘familiar’’
to or comfortable for the defendant, like those present
in State v. Spence, 165 Conn. App. 110, 118, 138 A.3d
1048, cert. denied, 321 Conn. 927, 138 A.3d 287 (2016),
in which this court determined that a finding of custody
was not supported when a defendant’s ‘‘surroundings
were familiar . . . [because] the defendant . . . was
in an open area of [his] home, and he was surrounded
by his family including other adults.’’ Id.; see also State
v. Mangual, supra, 311 Conn. 206 (‘‘an encounter with
police is generally less likely to be custodial when it
occurs in a suspect’s home’’). Although the hospital was
‘‘public’’ in that nonpolice personnel had access to the
defendant’s hospital room, the record shows that the
defendant was not ‘‘familiar’’ with the hospital to the
same degree that, for example, a person would be with
his home, and that the defendant was surrounded by
the police, hospital security, and the medical staff, as
opposed to friends and family, in the hospital room.
We note, however, that ‘‘the setting of [an] interrogation
is not so important to the inquiry as the question of
police domination of that setting . . . .’’ (Internal quo-
tation marks omitted.) Id. As we have noted, the police
presence—particularly in the defendant’s hospital
room—dominated the defendant’s immediate atmo-
sphere.
Although the police did not prevent the defendant
from speaking with or requesting assistance from the
medical staff, which had access to his hospital room
and spoke with him at various points during the evening,
as we previously have explained, ‘‘no one factor . . .
is outcome determinative.’’ Id., 208. Simply because the
defendant theoretically25 had the ability to converse
with, express annoyance to, or request assistance from
the medical professionals who provided him medical
care to terminate the interviews does not mean, by
itself, that a reasonable person in the defendant’s posi-
tion would believe that he was at liberty to terminate
the interrogation, particularly in light of the police domi-
nated presence that permeated his immediate surround-
ings. We also note that the defendant was alert enough
to be able to converse with the police and the medical
staff but that he had a tenth grade education and was
intoxicated during his interviews with the police,26
which may have further undermined his will to resist the
pressures inherent in the police dominated environment
that surrounded him.
Accordingly, we are unpersuaded that the factors that
militate against a finding that the defendant was in
custody outweigh the coercive features of the defen-
dant’s detention. See id., 206. We conclude that a reason-
able person in the defendant’s position would not have
believed he was at liberty to terminate the police ques-
tioning and would have concluded that his freedom
of movement was restricted by the police. Thus, we
proceed to the second step of the inquiry—that is, we
must determine ‘‘whether the relevant environment pre-
sents the same inherently coercive pressures as the
type of station house questioning at issue in Miranda.’’
(Internal quotation marks omitted.) Id., 193. Our review
of the factual circumstances of the present case leads
us to answer this question affirmatively.
Although the defendant was not handcuffed; see id.,
208 (‘‘[h]andcuffs are generally recognized as a hallmark
of a formal arrest’’ (internal quotation marks omitted));
or formally booked, he was physically connected to an
IV line while at least one police officer questioned him,
and he constantly was surrounded by numerous police
officers and, during at least one interview, hospital secu-
rity was inside his hospital room. As we have explained,
several of the police officers who questioned the defen-
dant or remained in his room while he was being ques-
tioned were in uniform, had visible service weapons on
their persons, or both.
When the defendant was questioned, although the
record does not reflect that the police utilized an
‘‘aggressive’’; State v. Jackson, supra, 304 Conn. 418; or
‘‘threaten[ing]’’ tone; State v. Mangual, supra, 311 Conn.
208; the presence of multiple armed, uniformed officers
for multiple hours and throughout multiple rounds of
police questioning produced a ‘‘large and intimidating
police presence’’; id.; ‘‘that could undermine an individ-
ual’s decision to remain silent.’’ State v. Castillo, supra,165 Conn. App. 717. This police presence lasted
throughout the duration of the defendant’s time at the
hospital because police officers repeatedly entered and
exited the defendant’s hospital room and, at least one
officer, the presence of whom the defendant was aware,
remained on the premises and in the defendant’s vicinity
throughout the duration of the evening.
Further, as we have stated, although the police did
not advise the defendant that he was under arrest, they
did not advise the defendant that they were not holding
or detaining him until after multiple rounds of ques-
tioning, and they never advised him that he was free
to terminate their interviews at any time or to stop
answering their questions if he so chose. See footnote
24 of this opinion. The police presence was itself threat-
ening and intimidating, and the officers’ conduct ‘‘con-
veyed a clear message of complete, unfettered and tem-
porally indefinite police control.’’ State v. Mangual,
supra, 311 Conn. 208. Thus, we conclude that a person
in the defendant’s position ‘‘reasonably would have
believed that [he] was in police custody to the degree
associated with a formal arrest’’; id., 195–96; because,
as we have set forth herein, ‘‘ ‘the relevant environ-
ment’ ’’; id., 193; including the ‘‘large and intimidating
police presence’’; id., 208; which transformed the hospi-
tal into a police dominated atmosphere, the restraint
that the medical attendants imposed on the defendant
for purposes of his treatment and of which the police
took advantage, the extensive duration of questioning to
which multiple police officers subjected the defendant,
and the failure of the police to advise the defendant that
he was free to terminate the interviews ‘‘present[ed]
the same inherently coercive pressures as the type of
station house questioning at issue in Miranda.’’ (Inter-
nal quotation marks omitted.) Id., 193.
We note that the present case is distinguishable from
cases in which our Supreme Court has determined that
a defendant, questioned by the police in a hospital,
was not in custody for Miranda purposes. In State v.
DesLaurier, supra, 230 Conn. 576, for example, our
Supreme Court determined that a defendant, ques-
tioned by the police in a hospital, was not in custody
for Miranda purposes under the factual circumstances
of the case. The defendant in DesLaurier was convicted
of assault in the second degree with a motor vehicle
and operating a motor vehicle while under the influence
of intoxicating liquor, arising out of an incident during
which he lost control of and crashed the vehicle after
having left a pool hall where he steadily consumed
alcohol during the several hours he was there. Id., 573.
An emergency response team found the defendant inter-
twined with the body of his stepbrother, who was in the
front passenger seat; however, initially, it was unclear
which individual had operated the vehicle. Id., 574. The
defendant acted aggressively and combatively, arguing
with medical personnel as they attempted to provide
care, rejecting medical care and attempting to remove
the brace and restraining belt attached to a body board
that had been used to extract him from the vehicle.
Id., 574–75.
A state police trooper who responded to the scene
initially avoided interfering with the medical attendants’
treatment of the defendant, but medical personnel even-
tually requested the trooper’s assistance to attempt to
calm the defendant. Id., 575. The trooper instructed the
defendant to lie down and to allow medical personnel
to do their job, and he stayed close by as they placed
the defendant into an ambulance. Id. The trooper fol-
lowed the ambulance as it transported the defendant
and his stepbrother to a hospital. Id.
After the trooper arrived at the hospital, he proceeded
to an emergency room in which the defendant was
located, which was connected to a separate room in
which the stepbrother was receiving care. Id. The defen-
dant continued to refuse medical care, despite being
injured, and the hospital staff informed the trooper that
the defendant ‘‘probably [was] going to take off.’’ (Inter-
nal quotation marks omitted.) Id. The trooper thus
entered the defendant’s room, introduced himself to
the defendant, and asked whether the defendant had
been driving the vehicle. Id. The defendant answered,
‘‘ ‘[n]o.’ ’’ Id. The trooper asked the stepbrother the same
question, and the stepbrother replied that the defendant
had been driving. Id. The trooper then relayed to the
defendant what his stepbrother had said, and the defen-
dant stated, ‘‘[a]ll right, I was . . . driving.’’ (Internal
quotation marks omitted.) Id. Immediately thereafter,
the trooper placed the defendant under arrest and read
him his Miranda rights. Id. At trial, the defendant’s
statement that he had been driving was admitted into
evidence, over the defendant’s objection. Id., 576.
On appeal, our Supreme Court concluded that the
trial court properly had admitted the defendant’s state-
ment to the trooper because the defendant was not in
custody for purposes of Miranda. Id. In so concluding,
our Supreme Court noted that the trooper was the sole
law enforcement officer present in the defendant’s hos-
pital room. See id., 581. Accordingly, unlike in the pres-
ent case, in which multiple officers entered and exited
the defendant’s hospital room throughout the evening
and stayed in the room during periods of questioning,
the presence of a single trooper in DesLaurier did not
create a ‘‘police-dominated atmosphere . . . .’’ (Inter-
nal quotation marks omitted.) Id., 579. Our Supreme
Court relied on the fact that the trooper briefly ques-
tioned the defendant for a period of only several
minutes in a public hospital emergency room in the
presence of witnesses who were not police officers—
specifically, hospital medical staff. See id., 581. Our
Supreme Court stated that there was ‘‘no evidence indi-
cating that the defendant was unable to converse with
these other people, express annoyance or request assis-
tance from them.’’ Id. The trooper also did not restrain
the defendant when he questioned him. Id., 580–81.
Significantly, our Supreme Court concluded that the
duration of the trooper’s questioning of the defendant
was ‘‘momentary’’ and ‘‘temporary . . . .’’ Id., 581. Our
Supreme Court cited two federal circuit court cases;
see Allen v. United States, 390 F.2d 476, 479 (D.C. Cir.
1968); United States v. Kennedy, 573 F.2d 657, 660 (9th
Cir. 1978); to distinguish ‘‘limited and brief inquir[ies],’’
which supported a conclusion that a suspect was not in
custody, from longer periods of questioning, including
a period of questioning of forty-five minutes, which
supported a conclusion that a suspect was in custody.
See State v. DesLaurier, supra, 230 Conn. 581. The
Supreme Court likened the short, brief questioning that
took place in DesLaurier to those ‘‘limited and brief
inquir[ies]’’ that supported a conclusion that a suspect
was not in custody for Miranda purposes. Id. The brief
duration of the trooper’s questioning of the defendant
in DesLaurier certainly is distinguishable from the
duration of the questioning that took place in the pres-
ent case, which, as we have explained, occurred over
the course of more than four hours and collectively
lasted approximately one hour.
Likewise, in State v. Jackson, supra, 304 Conn. 419,
our Supreme Court determined that a defendant, ques-
tioned by the police in a hospital, was not in custody
for Miranda purposes under the factual circumstances
of the case. The defendant was convicted of murder
after he had killed his former paramour in her apartment
in New Haven. Id., 387–88. On the day after the defen-
dant committed the murder, he attempted to end his
life by jumping out of a New York City hotel window,
and, although he survived, he sustained several injuries.
Id., 388. Consequently, the defendant was transported to
a hospital, accompanied by police officers, for medical
treatment and eventually was admitted into a surgical
care unit. Id., 388, 414.
When New Haven police officers arrived at the hospi-
tal to interview the defendant approximately one day
after he had jumped out of the window, an out-of-state
police officer was present in the defendant’s hospital
room because the defendant had attempted to commit
suicide. Id., 414. Before entering the defendant’s hospi-
tal room, a New Haven police detective spoke to a
nurse, who told the detective that the defendant was
awake and able to talk. Id. The detective then instructed
the out-of-state police officer to exit the hospital room
and asked the defendant if he knew why he was in the
hospital and for his name. Id. The defendant stated that
he wanted to die and provided a fake name to the
detective. Id. The detective initially did not inform the
defendant that he was under arrest. Id. Eventually, after
approximately thirty minutes, the defendant admitted
his true identity, and the detective subsequently read
the defendant his Miranda rights. Id., 414–15. The
detective then informed the defendant that he was not
under arrest and asked him questions, to which the
defendant provided answers. Id., 415.
Prior to trial, the defendant moved to suppress the
statements that he had provided to the detective in
the hospital. Id. The trial court denied the defendant’s
motion, determining that the only statement the defen-
dant had provided to the police before waiving his
Miranda rights was his name and that the defendant
was not subjected to custodial interrogation at that
time. Id., 415–16, 419. Consequently, at trial, the detec-
tive testified as to the content of his interview of the
defendant. Id., 415.
Our Supreme Court concluded that the trial court
properly had admitted the defendant’s statement to the
trooper because the defendant was not in custody for
purposes of Miranda when he provided the initial state-
ment to the trooper. See id., 419. Our Supreme Court
relied on the fact that only one police detective ques-
tioned the defendant. See id., 414. Although an out-of-
state police officer had accompanied the defendant to
the hospital and remained in the hospital room until
the detective began to question the defendant, the out-
of-state officer had done so to monitor the defendant
in light of his suicide attempt. Id., 418. The detective
specifically instructed the out-of-state officer to exit
the hospital room before he began to question the defen-
dant. Id., 414. The Supreme Court stated: ‘‘[T]here was
no reason for the defendant to feel intimidated by the
presence of the police inside the hospital room before
[the detective] arrived and outside the room thereafter.’’
Id., 419. Accordingly, unlike the situation in the present
case, the limited police presence in Jackson did not
transform the defendant’s hospital room into the sort
of police dominated atmosphere ‘‘that could undermine
an individual’s decision to remain silent.’’ State v. Cas-
tillo, supra, 165 Conn. App. 717.
Further, our Supreme Court noted that the ques-
tioning was ‘‘neither prolonged nor aggressive . . . .’’
State v. Jackson, supra, 304 Conn. 418. Unlike the situa-
tion in the present case, approximately thirty consecu-
tive minutes passed between the time when the detec-
tive in Jackson asked the defendant what his name was
and when the defendant provided his true identity to
the detective, at which point the detective advised the
defendant of his Miranda rights. Id., 414–15. The detec-
tive neither subjected the defendant to multiple rounds
of questioning nor questioned the defendant over an
extensive period of time, and the detective eventually
advised the defendant of his Miranda rights. See id.Additionally, our Supreme Court noted that the offi-
cer in Jackson eventually informed the defendant that
he was not under arrest. See id., 415. The Supreme
Court also noted that the defendant was immobilized for
medical treatment and that the police did not physically
restrain him, ask hospital personnel to extend his medi-
cal treatment, or prohibit him from leaving the hospital
room or asking hospital personnel to assist him in termi-
nating the questioning. See id., 418. Finally, the Supreme
Court determined that ‘‘there [wa]s no evidence that
[the defendant’s] age or intelligence rendered him espe-
cially vulnerable to police intimidation and, although
he may have been despondent and was receiving pain
medication for his injuries, the nurse indicated that
he was capable of speaking with the police, and [the
detective] testified that he was alert and coherent.’’
Id., 419.
Thus, the case before us is distinguishable from Des-
Laurier and Jackson. The facts of the present case
lead us to conclude that a reasonable person in the
defendant’s position would have believed that he was
not at liberty to terminate the police questioning, that
his freedom of movement was restricted by the police;
see State v. Mangual, supra, 311 Conn. 193; and ‘‘that
[he] was in police custody to the degree associated
with a formal arrest . . . .’’ Id., 195–96. ‘‘[T]he relevant
environment present[ed] the same inherently coercive
pressures’’ that would be present, had the police ques-
tioned the defendant at a police station. (Internal quota-
tion marks omitted.) Id., 193. Accordingly, we conclude,
contrary to the trial court’s determination, that the
defendant was in custody for purposes of Miranda.
II
Having determined that the defendant was in custody
for purposes of Miranda, we next consider whether
the police questioning of the defendant constituted
interrogation. We conclude that the police officers’
questioning of the defendant constituted interrogation
for purposes of Miranda because the police officers
should have known that their questions reasonably
were likely to elicit incriminating statements from the
defendant. See State v. Ramos, 317 Conn. 19, 29, 114
A.3d 1202 (2015).
We begin by setting forth the applicable standard
of review and governing legal principles. Whereas ‘‘[a]
finding of fact will not be disturbed unless it is clearly
erroneous in view of the evidence and pleadings in the
whole record . . . [t]he ultimate determination . . .
of whether a defendant already in custody has been
subjected to interrogation . . . presents a mixed ques-
tion of law and fact over which our review is plenary,
tempered by our scrupulous examination of the record
to ascertain whether the findings are supported by sub-
stantial evidence.’’ (Citation omitted; internal quotation
marks omitted.) Id., 30. We note that, during the hearing
on the defendant’s motion to suppress, the state pre-
sented evidence on the issue of whether the police
interrogated the defendant for purposes of Miranda
and, on appeal, the state does not raise this issue as
an alternative ground for affirmance. Accordingly,
although the court did not reach this issue because it
concluded that the defendant was not in custody for
Miranda purposes, we nonetheless determine this
mixed question of law and fact because the court made
sufficient findings of fact on which we may consider
and resolve the issue. See, e.g., Grady v. Somers, 294
Conn. 324, 349 n.28, 984 A.2d 684 (2009) (reviewing
alternative ground for affirmance that court below did
not address because alternative ground raised question
of law, over which Supreme Court’s review is plenary,
and essential facts pertaining to issue were undisputed);
Bouchard v. Deep River, 155 Conn. App. 490, 496, 110
A.3d 484 (2015) (same).
‘‘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.’’
(Internal quotation marks omitted.) State v. Ramos,
supra, 317 Conn. 29. ‘‘[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.’’ (Emphasis omitted; internal quotation marks
omitted.) State v. Smith, 321 Conn. 278, 288, 138 A.3d
223 (2016).
We begin by examining the factual circumstances of
the police conduct surrounding the defendant’s state-
ments. Each of the four police officers to whom the
defendant provided the statements he later sought to
suppress—Hicking, Bugbee, Hatheway, and Patrizz—
asked the defendant to explain what had happened or
to recount his version of events with respect to the
altercation. Hicking specifically asked the defendant
clarifying questions as the defendant recounted his ver-
sion of the events leading up to the altercation and the
altercation itself. Bugbee asked the defendant to tell
him what happened and informed him that he would
transcribe the defendant’s version of events in the writ-
ten statement he prepared. Hatheway, likewise, inter-
viewed the defendant concerning the defendant’s ver-
sion of events. Finally, Patrizz, the lead detective
assigned to the case, asked the defendant to provide
his version of events. As the court stated in its memoran-
dum of decision, ‘‘[a]s the lead detective, [Patrizz]
wanted to introduce himself to the defendant and ask
him about his version of events . . . [and, in the defen-
dant’s hospital room] asked the defendant to once again
provide his version of events.’’ (Emphasis added.) The
defendant eventually terminated the interview with
Patrizz because he was ‘‘annoy[ed]’’ that he had to
repeat his version of events multiple times.
As our Supreme Court explained in State v. Gonzalez,
supra, 302 Conn. 298, when a police officer asks a defen-
dant to provide his ‘‘side of the story’’ as to an alterca-
tion or a crime, the question is reasonably likely to elicit
an incriminating response from the defendant. See id.;
see also State v. Hoeplinger, 206 Conn. 278, 287 n.6,
537 A.2d 1010 (1988) (determining that, in case in which
police officer asked defendant to ‘‘give [the officer] a
statement concerning what happened,’’ there was ‘‘no
question that the defendant was subject to interroga-
tion’’ for purposes of Miranda). Unlike asking a defen-
dant routine booking questions unrelated to the crime;
see, e.g., State v. Evans, 203 Conn. 212, 225–27, 523
A.2d 1306 (1987); or asking a defendant whether he
understands his rights; see, e.g., State v. Kirby, supra,280 Conn. 399–400; by asking a defendant to provide
his version of the story, a police officer ‘‘implie[s] that
the defendant was involved in the [subject crime] and
explicitly [seeks] statements from the defendant regard-
ing his involvement in’’ that crime. State v. Gonzalez,
supra, 298. ‘‘[P]olice [officers] should know that such
words are reasonably likely to elicit incriminating state-
ments.’’ Id.In the present case, the police officers repeatedly
asked the defendant to provide his version of events
with respect to his altercation with Patten. These ques-
tions were not ‘‘objectively neutral question[s] unre-
lated to the crime’’ for which the defendant was later
prosecuted. Id. To the contrary, the questions ‘‘implied
that the defendant was involved’’ in the altercation; id.;
and explicitly called for responses from the defendant
regarding his involvement in the altercation, for which
he was later charged with assault in the first degree.
The officers ‘‘should have known [that their questions]
were reasonably likely to elicit an incriminating
response’’ from the defendant. (Emphasis omitted;
internal quotation marks omitted.) State v. Smith,
supra, 321 Conn. 288.
At the suppression hearing, Bugbee testified that he
did not advise the defendant of his Miranda rights
prior to taking the defendant’s statement because, in
Bugbee’s mind, the defendant ‘‘wasn’t . . . a suspect.’’
Although ‘‘the subjective intent of [a] police officer [may
be] relevant’’ to our consideration of whether a defen-
dant was interrogated for purposes of Miranda, it is
‘‘not conclusive.’’ (Internal quotation marks omitted.)
State v. Gonzalez, supra, 302 Conn. 299. Bugbee’s sub-
jective understanding of whether the defendant was a
suspect does not overcome the strong, highly relevant
‘‘relationship [between] the questions asked’’ by all of
the officers, including Bugbee, and ‘‘the crime commit-
ted . . . .’’ (Internal quotation marks omitted.) Id., 298.
Therefore, we conclude that the officers’ questions con-
stituted ‘‘the functional equivalent of interrogation
because the police should have known’’ that asking the
defendant to provide his side of the story was ‘‘reason-
ably likely to invite the defendant to respond by making
possibly incriminating statements.’’ Id., 299. In light of
our determination that the police subjected the defen-
dant to custodial interrogation, we conclude that the
police were required to advise the defendant of his
Miranda rights before eliciting statements from him.
See id., 294.
III
Our inquiry, however, does not end simply because
we have determined that the police were required to
advise the defendant of his Miranda rights prior to
subjecting him to custodial interrogation and eliciting
statements from him. We additionally must address the
state’s contention that the admission of the defendant’s
statements into evidence at trial nonetheless was harm-
less beyond a reasonable doubt. The state specifically
contends that the statements the defendant made to
the police in response to police questioning did not
constitute ‘‘confessions’’ and that many of the defen-
dant’s statements supported his self-defense theory at
trial. The state also argues that the statements consti-
tuted only a ‘‘minimal part’’ of the state’s proof, noting
that it did not present the defendant’s statements during
its case-in-chief and that it merely offered the state-
ments to show that parts of the statements were incon-
sistent with one another or with the defendant’s in-
court testimony. Finally, the state contends that the
strength of its case against the defendant, outside of
the statements, was overwhelming. Because we con-
clude that the defendant’s statements may have had a
tendency to influence the court’s analyses of both the
charged offense of assault in the first degree and the
defendant’s claim of self-defense, we reject the state’s
contention that the admission of the statements into
evidence at trial was harmless beyond a reasonable
doubt.
‘‘If statements taken in violation of Miranda are
admitted into evidence during a trial, their admission
must be reviewed in light of the harmless error doctrine.
. . . The harmless error doctrine is rooted in the funda-
mental purpose of the criminal justice system, namely,
to convict the guilty and acquit the innocent. . . .
Therefore, whether an error is harmful depends on its
impact on the trier of fact and the result of the case.’’
(Citations omitted; internal quotation marks omitted.)
State v. Mitchell, 296 Conn. 449, 459–60, 996 A.2d 251(2010). ‘‘When an [evidentiary] impropriety is of consti-
tutional [dimension], the state bears the burden of prov-
ing that the error was harmless beyond a reasonable
doubt.’’ (Internal quotation marks omitted.) State v.
Mangual, supra, 311 Conn. 214.
We emphasize that the state’s burden is a
‘‘demanding’’ one. Id., 212. ‘‘Whether the error was
harmless depends on a number of factors, such as the
importance of the evidence to the state’s case, whether
the evidence was cumulative of properly admitted evi-
dence, the presence or absence of corroborating evi-
dence, and, of course, the overall strength of the state’s
case.’’ State v. Culbreath, 340 Conn. 167, 192, 263 A.3d
350 (2021). ‘‘Most importantly, we must examine the
impact of the evidence on the trier of fact and the result
of the trial.’’ (Internal quotation marks omitted.) State
v. Moore, 293 Conn. 781, 806, 981 A.2d 1030 (2009), cert.
denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d 306(2010). ‘‘If the evidence may have had a tendency to
influence the judgment of the [trier of fact], it cannot
be considered harmless. . . . That determination must
be made in light of the entire record [including the
strength of the state’s case without the evidence admit-
ted in error].’’ (Internal quotation marks omitted.) State
v. Mangual, supra, 311 Conn. 214–15.
As our Supreme Court recently stated in State v.
Alexander, 343 Conn. 495, 275 A.3d 199 (2022), in a
case that ‘‘was tried to a court, not a jury . . . our
harmless error analysis is facilitated substantially by
the express findings contained in the memorandum of
decision by which the [court] returned [its] ultimate
finding of guilt.’’ Id., 506. In Alexander, our Supreme
Court considered whether a defendant was harmed
when his statements to the police, which should have
been suppressed, improperly were admitted into evi-
dence during his criminal trial. Id., 502. Our Supreme
Court concluded that ‘‘the error was harmless beyond
a reasonable doubt’’; id., 506; because ‘‘the defendant’s
. . . statement[s] did not implicate [him] in the
[charged offenses at issue], [were] not important to
the state’s case, and did not in any respect affect the
convictions at issue.’’ Id., 507.
Our Supreme Court noted that the trial court
expressly had stated in its memorandum of decision
that it ‘‘did not consider’’ the defendant’s statements in
determining his guilt as to the charged offenses at issue.
(Internal quotation marks omitted.) Id., 503. Specifi-
cally, our Supreme Court stated, the trial court neither
‘‘credited [n]or relied on the defendant’s . . . state-
ment[s] to reach [its] respective findings of guilt.’’ Id.,
507. ‘‘[I]t did not consider any of the statements made
by the defendant during his interview with the police
. . . in determining the defendant’s guilt’’ as to his con-
viction on the charge of felony murder. (Internal quota-
tion marks omitted.) Id., 503. Our Supreme Court fur-
ther stated that the trial court’s ‘‘insistent remarks that
the defendant’s statements had no effect on [its] [deci-
sion] reinforce[d] our [Supreme Court’s] confidence in
[its] . . . conclusion that the improper admission of
the defendant’s . . . statement[s] had no impact on the
guilty findings at issue.’’ (Internal quotation marks omit-
ted.) Id., 510.
Our Supreme Court in Alexander further noted that
‘‘[t]he accuracy of the [trial court’s] assessment of the
impact that the improperly admitted evidence had on
[the] guilty verdict [was] underscored by the [court’s]
determination that’’ a separate offense for which the
defendant was convicted—carrying a pistol without a
permit—‘‘necessitat[ed] a different result.’’ (Internal
quotation marks omitted.) Id., 510 n.12. Our Supreme
Court explained, ‘‘[i]n contrast to the defendant’s con-
viction on the . . . charges [at issue on appeal], [the
trial court] did explicitly rely on the defendant’s state-
ments’’; (emphasis added) id., 510–11 n.12.; which the
trial court had described as ‘‘inculpatory [as to the
charge of carrying a pistol without a permit] and tanta-
mount to a confession’’; (internal quotation marks omit-
ted) id., 504; in determining that the defendant was
guilty of carrying a pistol without a permit. Id.
In the present case, and in the court’s memorandum
of decision, the court explicitly relied on at least one
of the defendant’s statements that we have concluded
should have been suppressed—namely, the defendant’s
statement, ‘‘I’m a peaceable person until you get in my
face, then I fuck you up’’—in finding the defendant
guilty of assault in the first degree. To meet its burden
as to the offense of assault in the first degree, it was
necessary for the state to prove beyond a reasonable
doubt, inter alia, that the defendant possessed the spe-
cific intent to cause serious physical injury to Patten.
See General Statutes § 53a-59 (a) (1). As the court recog-
nized, ‘‘[i]ntent may be, and usually is, inferred from
the defendant’s verbal or physical conduct. . . . Intent
may also be inferred from the surrounding circum-
stances. . . . The use of inferences based on circum-
stantial evidence is necessary because direct evidence
of the accused’s state of mind is rarely available. . . .
Furthermore, it is a permissible, albeit not a necessary
or mandatory, inference that a defendant intended the
natural consequences of his voluntary conduct.’’
(Emphasis omitted; internal quotation marks omitted.)
State v. Lamantia, 336 Conn. 747, 756–57, 250 A.3d
648 (2020).
In its evaluation of the intent element, the court noted
that Patten had punched the defendant in the face dur-
ing the first altercation, ‘‘which angered the defendant,’’
and, after Patten and the defendant initially had sepa-
rated from one another, the defendant ‘‘sat down by
the fire, but he was angry.’’ (Emphasis added.) The
defendant’s anger, the court concluded, motivated him
to attack Patten from behind with the intent to cause
serious physical injury to him. In support of its determi-
nation that the defendant possessed the requisite intent
to commit assault in the first degree, the court specifi-
cally cited one of the statements that the defendant
made to Bugbee: ‘‘I’m a peaceable person until you get
in my face, then I fuck you up.’’ As in Alexander, in
which the trial court expressly relied on the statement
of the defendant that he temporarily had possessed a
handgun as evidence in support of its determination
that he was guilty of carrying a pistol without a permit;
see State v. Alexander, supra, 343 Conn. 510–11 n.12;
the court in the present case expressly relied on the
statement of the defendant that he was a ‘‘peaceable
person until [someone] g[ot] in [his] face, then [he
would] fuck [him] up’’ as evidence in support of its
determination that the state had proven beyond a rea-
sonable doubt the element of intent, a requisite element
of the charge of assault in the first degree.
We also note, contrary to the state’s position on
appeal, that many of the defendant’s statements were,
indeed, inculpatory, and many of his statements specifi-
cally may have had a tendency to influence the court’s
analysis of the element of intent. As our Supreme Court
noted in State v. Mitchell, supra, 296 Conn. 461, a ‘‘note-
worthy fact’’ in a court’s analysis of whether the
improper admission at trial of statements that were
taken in violation of Miranda nonetheless was harmless
error is whether the statements themselves were incul-
patory. In the present case, the defendant’s state-
ments—including, ‘‘I’m a peaceable person until you
get in my face, then I fuck you up,’’ ‘‘I take shit from
no one,’’ ‘‘I’m a peaceable man, but you drive me to the
edge, I’m not going to let up,’’ and, ‘‘I don’t flight, I
fight’’—incriminated him with regard to the offense of
assault because the statements, both individually and
collectively, specifically tended to demonstrate the
defendant’s intent to cause serious physical injury to
Patten, who had punched him in the face shortly before
he stabbed Patten.27 Thus, we cannot say that these
statements were ‘‘relatively benign [or] facially innocu-
ous . . . .’’ (Internal quotation marks omitted.) State
v. Mitchell, supra, 462.
Finally, we note that, at trial, the state extensively
cross-examined the defendant as to several of the state-
ments he made to the police and, during its rebuttal
argument at the conclusion of the trial, recited his vari-
ous inculpatory statements. Specifically, the prosecutor
stated: ‘‘I think [the defendant] said it better than I ever
could. ‘I take shit from no one, you swing at me I’m going
to end you.’ ‘He’s lucky he’s family because honestly I
could have ended him but I didn’t, instead of fight or
flight you know how it goes, I don’t fly, I fight.’ ‘I’m a
peaceable person until you get in my face, then I’ll
fuck you up.’ ‘Honestly, I take shit from no one.’ ‘I’m
a peaceable man, but you drive me to the edge, I’m not
going to let up.’ ’’
Thus, we conclude that the defendant’s multiple
inculpatory statements ‘‘may have had a tendency to
influence the judgment of the [trier of fact]’’; (internal
quotation marks omitted) State v. Mangual, supra, 311
Conn. 214; with respect to the element of intent. It is
axiomatic, therefore, that the entry of the defendant’s
statements into evidence at trial was not harmless
beyond a reasonable doubt. See id.Moreover, many of the defendant’s statements may
have had a tendency to influence the court’s analysis of
his self-defense claim. As we have stated, the defendant
pursued at trial a claim of self-defense—that is, that he
had used reasonable physical force against Patten to
defend himself from what he reasonably believed to be
Patten’s use or imminent use of physical force against
him and that he was not the initial aggressor. See Gen-
eral Statutes § 53a-19.28 The defendant specifically con-
tended that Patten initially shoved the defendant, began
to punch him, knocked him onto the ground, and
choked him while repeatedly punching him. The defen-
dant maintained that he was unable to breathe and
momentarily had lost consciousness while Patten held
him in a headlock, and that the defendant stabbed Pat-
ten as a necessary means to remove himself from Pat-
ten’s chokehold.
‘‘Under our Penal Code, self-defense . . . is a [claim
of] defense, rather than an affirmative defense. . . .
Whereas an affirmative defense requires the defendant
to establish his claim by a preponderance of the evi-
dence, a properly raised [claim of] defense places the
burden on the state to disprove the defendant’s claim
beyond a reasonable doubt. . . . Consequently, a
defendant has no burden of persuasion for a claim of
self-defense; he has only a burden of production. That
is, he merely is required to introduce sufficient evidence
to warrant presenting his claim of self-defense to the
jury. . . . Once the defendant has done so, it becomes
the state’s burden to disprove the defense beyond a
reasonable doubt.’’ (Citations omitted; emphasis
altered; internal quotation marks omitted.) State v.
Grasso, 189 Conn. App. 186, 198, 207 A.3d 33, cert.
denied, 331 Conn. 928, 207 A.3d 519 (2019). Because
the court concluded that ‘‘the evidence presented at
trial raised a genuine issue as to the possible availability
of the [claim] of self-defense with respect to the charge
of assault in the first degree,’’ the state was required
to disprove the defendant’s claim of self-defense beyond
a reasonable doubt. See State v. Grasso, supra, 198.
The court ultimately concluded that the state had
disproven the defendant’s claim of self-defense beyond
a reasonable doubt. In assessing whether the state had
met its burden, the court was required to consider,
inter alia, whether the state had disproven beyond a
reasonable doubt that the defendant was not the initial
aggressor; see General Statutes § 53a-19 (c) (2); that the
defendant had the duty to retreat; see General Statutes
§ 53a-19 (b) (1); that the amount of force the defendant
used, in response to the force he argued that Patten
used against him, was proportional; see General Stat-
utes § 53a-19 (a); or that the defendant used force to
defend himself from what he believed was the use or
imminent use of force against him. See General Statutes
§ 53a-19 (a).
The defendant’s statements incriminated him with
regard to various elements of his claim of self-defense.
For example, the fact that the defendant stated, ‘‘I’m a
peaceable person until you get in my face, then I fuck
you up,’’ ‘‘I take shit from no one,’’ and, ‘‘I don’t flight,
I fight,’’ tended to demonstrate that the defendant did
not use force against Patten to defend himself but,
instead, used force against Patten to cause serious phys-
ical injury to Patten. Likewise, these statements tended
to show that the defendant was the initial aggressor—
that is, that he used physical force against Patten before
Patten used physical force against him—because he
was angry at Patten.
Further, the fact that the defendant stated, ‘‘I don’t
flight, I fight,’’ tended to demonstrate that he ignored
any duty to retreat he may have had. The fact that the
defendant stated, ‘‘I’m a peaceable person until you get
in my face, then I fuck you up,’’ made more likely that
the amount of force that the defendant used against
Patten was excessive. Accordingly, we conclude that
the defendant’s statements ‘‘may have had a tendency
to influence the judgment of the [trier of fact]’’ with
respect to various elements of the defendant’s claim of
self-defense. (Internal quotation marks omitted.) State
v. Mangual, supra, 311 Conn. 214.
In light of the foregoing, we agree with the defendant
that the state has not met the requisite ‘‘demanding
standard’’; id., 212; to prove that the improper admission
of the defendant’s statements into evidence at trial was
harmless beyond a reasonable doubt.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
In his principal appellate brief, the defendant additionally claims that
the court improperly denied his motion to suppress the statements because
the police officers who interviewed him did not electronically record the
entire interrogation, as he asserts is required by General Statutes § 54-1o.
The defendant withdrew this claim in his reply brief. Accordingly, we do
not address it.
The defendant also claims on appeal that the court improperly denied
his motion seeking dismissal of the case against him or other forms of
relief because the prosecution had failed to timely disclose certain material
evidence to the defense. Specifically, the defendant contends that the state
failed to timely disclose impeachment material concerning the victim’s pro-
bationary conditions. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963).
Because we conclude that the judgment of conviction must be reversed
on other grounds and the matter remanded for a new trial, it is unnecessary
to reach this claim. We recognize that our Supreme Court has held that,
‘‘[u]nder Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416(1982), and its progeny, the double jeopardy clause will bar the retrial . . .
of a . . . defendant whose conviction [in the first trial] . . . was secured
by prosecutorial misconduct . . . if the prosecutor in the first trial engaged
in misconduct with the intent to prevent an acquittal that the prosecutor
believed at the time was likely to occur in the absence of his misconduct.’’
(Citations omitted; footnotes omitted; internal quotation marks omitted.)
State v. Colton, 234 Conn. 683, 687–96, 663 A.2d 339 (1995), cert. denied,
516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). Our careful reading
of the defendant’s appellate briefs, however, reveals that he does not argue
to this court that, in the event that he prevailed on appeal on his Brady
claim, he is entitled to a judgment of acquittal. See id.; see also Oregon v.
Kennedy, supra, 667.
2
Our Supreme Court in Edmonds specifically noted that ‘‘some ambiguity’’
existed; State v. Edmonds, supra, 323 Conn. 44; with respect to the factual
circumstances surrounding the police search of a defendant in a parking
lot and their seizure of narcotics from the defendant’s person. See id., 39–44.
Our Supreme Court stated, ‘‘[t]he precise sequence of events from the time
the [police] officers entered the [parking] lot until they frisked the defendant
[was] less clear. . . . The officers’ testimony at the . . . hearing [on the
defendant’s motion to suppress], together with the trial court’s subsequent
factual findings, injected some ambiguity into [multiple parts] of the’’
sequence of events that the police officers had written in a police report;
id., 43–45; including (1) whether a police sergeant who responded to the
scene did so ‘‘precisely at the same time as’’ the arresting officers; id., 44;
and (2) when the defendant was stopped by the police. See id., 44–45.
The Supreme Court stated that, although the trial court had found that
the officers and the sergeant had ‘‘entered the parking lot at the same time’’;
(emphasis in original; internal quotation marks omitted) id., 45; ‘‘the police
report [and the officers’ testimony] . . . indicated that [the officers] entered
the lot . . . shortly before [the sergeant] . . . and the record contain[ed]
no evidence to the contrary . . . .’’ (Emphasis in original.) Id. Thus, our
Supreme Court concluded, ‘‘we must understand the [trial] court’s finding
that the two [police] cruisers entered at the same time to mean that the
two cruisers arrived at the lot at approximately the same time . . . .’’
(Emphasis altered.) Id. Further, to ascertain when the defendant was stopped
by the police, our Supreme Court likewise reviewed the undisputed testi-
mony of the officers, which it determined was ‘‘consistent with the police
report’’; id.; because ‘‘the trial court [had] made no findings’’ as to the issue.
Id., 46. Accordingly, our Supreme Court referenced the officers’ testimony,
consistent with the police report, with respect to when the defendant was
stopped by the police. See id., 45–46, 59.
3
Later in the evening, after Patten and the defendant arrived at Rockville
General Hospital in Vernon for treatment of injuries, medical staff deter-
mined that Patten had a blood alcohol content level of 0.31 and that the
defendant had a blood alcohol content level of 0.217.
4
The defendant stabbed Patten three times in the back, twice in the arm,
and once in the front shoulder.
5
The police later recovered the knife. Subsequent forensic testing estab-
lished that Patten’s blood was on the knife.
6
Roberge wore a body camera on his person, which he activated when
he interacted with the defendant. The full audio and video recordings of
the interactions between the defendant and Roberge were admitted into
evidence during the suppression hearing and during the subsequent crimi-
nal trial.
7
Roberge additionally reentered the defendant’s hospital room at approxi-
mately 10 p.m. and exited one minute later. He neither advised the defendant
of his Miranda rights nor informed the defendant that he was free to leave
during this second interaction.
8
A portion of Hicking’s conversation with the defendant was recorded
by Bugbee’s body camera. The audio and video recording was admitted into
evidence during the suppression hearing and at the subsequent criminal trial.
9
Bugbee was wearing a body camera, which he activated before he spoke
with the defendant. The full audio and video recordings of each of Bugbee’s
and the defendant’s conversations from Bugbee’s body camera were admit-
ted into evidence during the suppression hearing, and portions of the
recordings were admitted into evidence at the subsequent criminal trial.
10
In its memorandum of decision on the defendant’s motion to suppress,
the court found the following: At no point during the defendant’s stay at
the hospital was he ever physically restrained or tied to medical equipment
restricting his freedom of movement, except for an IV at the beginning of
his treatment’’; (emphasis added); ‘‘[h]e was not restrained in any way’’;
(emphasis added); ‘‘[the defendant] was not physically restrained in any
way, by medical staff or [the] police’’; (emphasis added); and, ‘‘[u]nlike the
defendant [in] Mincey [v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed.
2d 290 (1978)], [the defendant in the present case] was not tied to any tubes,
needles or breathing apparatus.’’ (Emphasis added.)
These findings raise two concerns. First, despite the court’s finding that,
‘‘[u]nlike the defendant [in] Mincey, [the defendant in the present case] was
not tied to any tubes, needles or breathing apparatus[es]’’; (emphasis added);
the court simultaneously found that the defendant was attached to an IV
line ‘‘at the beginning of his treatment.’’ Second,, the court did not clarify
what it meant by its use of the ambiguous term ‘‘restrained’’ in this context.
We address each concern in turn.
With respect to the court’s contradictory findings, a brief review of the
United States Supreme Court’s decision in Mincey is necessary. In Mincey,
the United States Supreme Court concluded that a defendant’s statements,
which he made to the police from his hospital bed, were involuntarily made.
See Mincey v. Arizona, supra, 437 U.S. 398–401. The defendant in Mincey
was encumbered by ‘‘tubes, needles, and [a] breathing apparatus’’; id., 399;
when he was questioned, including ‘‘[t]ubes [that had been] inserted into
his throat to help him breathe, and through his nose into his stomach to
keep him from vomiting; [as well as] a catheter [that had been] inserted
into his bladder. [The defendant also] received various drugs, and a device
was attached to his arm so that he could be fed intravenously.’’ Id., 396.
In the present case, to reconcile the court’s seemingly contradictory state-
ments, we read the court’s statement, ‘‘[u]nlike the defendant [in] Mincey,
[the defendant in the present case] was not tied to any tubes, needles or
breathing apparatus,’’ to mean that the court found that the defendant was
not encumbered by the type of tubes, needles, and breathing apparatus that
encumbered the defendant in Mincey or to the extent that the defendant
in Mincey was so encumbered. Nonetheless, as the court also found in the
present case, and it is undisputed, the defendant was attached to an IV line
‘‘at the beginning of his treatment.’’
With respect to our second concern—the court’s use of the term
‘‘restrained’’—we are unsure, simply by reading the court’s memorandum
of decision, what meaning the court intended to accord to the term
‘‘restrained’’ in this context. The court could have meant ‘‘police restraint,’’
such as restraint by handcuffs. The court, however, equally could have
meant ’’hospital restraint.’’ We likewise are unsure whether the court, by
finding that the defendant was not ‘‘restrained,’’ determined that the defen-
dant was not tethered to an IV line at any point when he was questioned
by the police. Significantly, the court did not make any explicit factual
findings concerning the time or times at which the IV line was inserted,
exactly how long the IV line remained inserted, or the time at which the IV
line was removed from the defendant. Thus, we ‘‘ ‘scrupulous[ly] exam-
in[e]’ ’’; State v. Edmonds, supra, 323 Conn. 39; the undisputed evidence in
the record and the factual findings of the court to resolve whether the
defendant was tethered to an IV line when he was questioned by the police.
See id., 39, 44–46 (reviewing court’s factual findings, as well as undisputed
testimony and evidence in record, to resolve factual ambiguities in
court’s decision).
We have reviewed the defendant’s medical records, which were admitted
into evidence during the hearing on the defendant’s motion to suppress and
at trial. The medical records include the following notes from the night in
question: (1) as entered into the medical record at 9:50 p.m. by physician’s
assistant Brian Karwaski, ‘‘[s]tart IV/saline lock’’; and (2) as entered into
the medical record at 10:27 p.m. by Hoyle, ‘‘(IV start kit used) Site #1: (20
gauge) IV catheter left hand IV site labeled per protocol’’ at approximately
10:20 p.m., and ‘‘[b]lood obtained from the left hand via IV attempted times
1’’ at approximately 10:20 p.m. We note that, during the suppression hearing,
Hoyle testified that she had ‘‘inserted’’ an IV line into the defendant ‘‘soon
after’’ he arrived at the hospital for the purpose of conducting a blood test.
We also note, as the court found, that the defendant arrived at the hospital
at approximately 9:42 p.m.
We additionally observe that Bugbee questioned the defendant in his
hospital room from 10:13 p.m. until 10:42 p.m., as reflected by the time
stamps on the video footage from his body camera. Bugbee had activated
the body camera when he entered the defendant’s hospital room, and its
video footage later was admitted into evidence during the suppression hear-
ing. Bugbee testified during the suppression hearing that he ‘‘[did not] recall’’
whether the defendant was ‘‘hooked up to any medical equipment’’ at any
point when he questioned the defendant.
Our careful review of the video recordings from Bugbee’s body camera
reveals that, at 10:13 p.m. and 10:17 p.m.—at which times the defendant’s
hands and arms momentarily were visible on the video recording—there
does not appear to be an IV line or IV port in the defendant’s hands or arms.
At approximately 10:18 p.m., however, a nurse entered the video frame and
spoke with the defendant. Although, between 10:18 p.m. and 10:22 p.m., the
video camera was positioned such that a viewer of the video recording is
unable to see the defendant’s left hand and arm as well as what the nurse
was doing, the audio recording from the video reflects that the defendant
stated to the nurse at 10:19 p.m., ‘‘needles don’t affect me.’’ At 10:22 p.m., the
nurse visibly exited the frame. At 10:42 p.m.—at which point the defendant’s
hands once again became visible on the video recording—an IV port, inserted
into the defendant’s left hand, was visible for the first time.
Because (1) Hoyle testified that she inserted an IV line into the defendant
for the purposes of completing a blood test ‘‘soon after’’ he arrived at the
hospital, (2) the video footage depicts Bugbee questioning the defendant
from 10:13 p.m. until 10:42 p.m., (3) the video footage depicts that, at some
point during Bugbee’s interview, an IV port was inserted into the defendant’s
hand, and (4) the medical records reflect that Hoyle inserted an IV line into
the defendant at approximately 10:20 p.m., and the record contains no
evidence to the contrary, a fair reading of the court’s finding that the defen-
dant was attached to an IV line ‘‘at the beginning of his treatment’’ refers
to when Hoyle inserted an IV into the defendant at approximately 10:20
p.m., during Bugbee’s interrogation of him.
11
Hatheway’s conversation with the defendant was recorded using Bug-
bee’s and Pryputniewicz’ body cameras, which Bugbee and Pryputniewicz
had activated. The audio and video recordings of the conversation were
admitted into evidence as full exhibits during both the suppression hearing
and the subsequent criminal trial.
12
Our review of the record—specifically, the recordings from Bugbee’s
body camera that were admitted into evidence during the suppression hear-
ing—reveals that, at approximately 12:09 a.m., Bugbee informed the defen-
dant for the first time, and only after the defendant already had been sub-
jected to extensive questioning, that he was ‘‘pretty much free to go at any
time . . . with the exception of what the hospital’s got to do’’; (emphasis
added); and, at approximately 12:25 a.m., Bugbee told the defendant, ‘‘I
think it’s a hospital policy, because you’ve been drinking, that they can’t
release you right away. . . . I think you . . . have to wait [a] couple of
hours until [hospital staff] say that you’re good to go. . . . [T]hey’re going
to keep you as long as they have to.’’ (Emphasis added.)
13
This conversation was not recorded.
14
During closing argument at the conclusion of the suppression hearing
and in his posthearing memorandum of law in support of his motion to
suppress, dated May 20, 2019, the defendant clarified that he specifically
sought to suppress the statements that he had made to Hicking, Bugbee,
Hatheway, and Patrizz between approximately 10 p.m. on June 22, 2018,
and 2 a.m. on June 23, 2018. The defendant did not seek to suppress the
statements that he made to Roberge, which included the following: he
‘‘wasn’t in the right’’ for stabbing Patten; ‘‘I mean, look at what he did,’’
while pointing at his nose; and, ‘‘I take shit from no one, you swing at me,
I’m going to end you.’’
15
The defendant additionally contended that the statements were inadmis-
sible because (1) he involuntarily had provided the statements to the police,
(2) the statements failed to meet the statutory requirements of General
Statutes § 54-1o, (3) the rule of completeness, codified in § 1-5 of the Connect-
icut Code of Evidence, precluded their admission, and (4) the probative
value of the statements was outweighed by the danger of their unfair preju-
dice pursuant to § 4-3 of the Connecticut Code of Evidence.
16
The court determined that the defendant was aware of at least one
officer outside of his room; at one point during the evening, the defendant
summoned Bugbee into the room.
17
The court nonetheless concluded that ‘‘[t]he duration of [the] questioning
was not excessive . . . .’’
18
Because it concluded that the defendant had failed to establish that he
was in custody, the court declined to consider whether the police had
subjected him to interrogation for purposes of Miranda.
19
The defendant affirmatively waived his right to a jury trial on May 7, 2019.
20
After the state rested, the defendant moved for a judgment of acquittal
as to both counts. On July 1, 2019, the court orally denied the defendant’s
motion as to the first count, assault in the first degree, and granted the
motion as to the second count, tampering with physical evidence. In granting
the motion as to the second count, the court concluded that no rational
fact finder could find, based on the evidence the state had presented, that
the defendant had altered, destroyed, concealed, or removed the knife or
that he did so with the purpose of impairing its verity or availability as
evidence. See General Statutes § 53a-155 (a) (1).
21
General Statutes § 53a-59 provides in relevant part: ‘‘(a) A person is
guilty of assault in the first degree when: (1) With intent to cause serious
physical injury to another person, he causes such injury to such person or
to a third person by means of a deadly weapon or a dangerous instru-
ment . . . .’’
22
‘‘We emphasize that the test for whether an interrogation was custodial is
an objective one. [T]he subjective views harbored by either the interrogating
officers or the person being questioned are irrelevant. . . . The test, in
other words, involves no consideration of the actual mindset of the particular
suspect subjected to police questioning.’’ (Internal quotation marks omitted.)
State v. Mangual, supra, 311 Conn. 198 n.13.
23
We agree with the state that, because a directive from the hospital staff
prohibited the defendant from leaving the hospital premises until he was
medically sober, whether a reasonable person in the defendant’s position
would have believed he was ‘‘at liberty to . . . leave’’ the premises; (empha-
sis added; internal quotation marks omitted) State v. Mangual, supra, 311
Conn. 193; is less applicable to our resolution of this claim than whether a
reasonable person in the defendant’s position would have believed he was
‘‘at liberty to terminate the interrogation’’; (internal quotation marks omitted)
id.; and that his freedom of movement was restricted by the police. See
id., 194–95.
24
We recognize that the defendant made some of the statements he later
sought to suppress after Bugbee had told him that he was free to leave, ‘‘as
far as the police were concerned.’’ By that point, however, several police
officers already had questioned the defendant during a period of more
than two hours, and the defendant already had made various inculpatory
statements to the police. Further, the defendant was, in fact, not free to
leave. Bugbee made this fact clear to the defendant when he iterated to
him that he was prohibited from leaving the hospital until he regained
sobriety, per hospital directive. See footnote 12 of this opinion. Bugbee
never explicitly informed the defendant that he was free to terminate the
interviews despite informing him that he could not leave the hospital prem-
ises until he regained sobriety, per hospital directive.
25
We acknowledge that, at approximately 12:35 a.m. or 12:40 a.m., the
defendant indicated that he did not want to speak to the officers anymore.
Nonetheless, in the preceding three hours, during which it is uncontested
that the defendant was intoxicated, the police did not inform him that he
had the ability to terminate their interviews or to not respond to their
questions if he so chose.
26
We also note that the court stated in its memorandum of decision on
the defendant’s motion to suppress that ‘‘[i]t is true that the defendant . . .
may have, in the past, been taking medication for attention deficit hyperactiv-
ity disorder, depression and anxiety.’’
27
Because the defendant did not challenge the admissibility of the state-
ment he made to Roberge, ‘‘I take shit from no one, you swing at me, I’m
going to end you,’’ to the extent the court considered this statement, it did
so properly. We cannot say, however, that the court, in assessing whether
this statement bore on the issue of intent, was not already tainted by the
multiple other inculpatory statements that improperly were admitted into
evidence during trial. As this court, considering a claim of harmless error of
a nonconstitutional dimension, has explained, ‘‘[o]ur [harmlessness] inquiry
focuses on the impact of the improperly introduced evidence on the . . .
perceptions [of the trier of fact] and [the trier of fact’s] understanding of
the other evidence presented in the case, rather than an analysis of the
sufficiency of the remaining evidence to uphold the conviction in the absence
of the admission of the [allegedly improperly admitted] evidence . . . .’’
(Internal quotation marks omitted.) State v. Ledbetter, 41 Conn. App. 391,
399, 676 A.2d 409 (1996), aff’d, 240 Conn. 317, 692 A.2d 713 (1997); see also
State v. Merritt, 36 Conn. App. 76, 92, 647 A.2d 1021 (1994) (same), appeal
dismissed, 233 Conn. 302, 659 A.2d 706 (1995).
28
General Statutes § 53a-19, titled ‘‘Use of physical force in defense of
person,’’ provides in relevant part: ‘‘(a) Except as provided in subsections
(b) and (c) of this section, a person is justified in using reasonable physical
force upon another person to defend himself . . . from what he reasonably
believes to be the use or imminent use of physical force, and he may use
such degree of force which he reasonably believes to be necessary for such
purpose; except that deadly physical force may not be used unless the actor
reasonably believes that such other person is (1) using or about to use
deadly physical force, or (2) inflicting or about to inflict great bodily harm.
‘‘(b) Notwithstanding the provisions of subsection (a) of this section, a
person is not justified in using deadly physical force upon another person
if he . . . knows that he . . . can avoid the necessity of using such force
with complete safety (1) by retreating . . . .
‘‘(c) Notwithstanding the provisions of subsection (a) of this section, a
person is not justified in using physical force when (1) with intent to cause
physical injury or death to another person, he provokes the use of physical
force by such other person, or (2) he is the initial aggressor, except that
his use of physical force upon another person under such circumstances is
justifiable if he withdraws from the encounter and effectively communicates
to such other person his intent to do so, but such other person notwithstand-
ing continues or threatens the use of physical force . . . .’’