State v. Labarge ( 2016 )

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STATE OF CONNECTICUT v. MICHAEL LABARGE
(AC 37581)
DiPentima, C. J., and Prescott and Bishop, Js.
Argued January 11—officially released April 5, 2016
(Appeal from Superior Court, judicial district of New
Britain, D’Addabbo, J.)
William B. Westcott, assigned counsel, for the appel-
lant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, was Brian Preleski, state’s
attorney, for the appellee (state).
Opinion
BISHOP, J. The defendant, Michael Labarge, appeals
from the judgment of conviction, rendered after a jury
trial, of murder in violation of General Statutes § 53a-
54a and tampering with physical evidence in violation
of General Statutes § 53a-155 (a) (1). On appeal, the
defendant claims that the trial court improperly (1)
denied his motion to sever for trial the two charges
against him and (2) denied his motion to suppress cer-
tain statements that he had made to state correction
officers. We affirm the judgment of the trial court.
The jury could have reasonably found the following
facts. In the evening of August 29, 2009, the defendant
came across the victim, Cornell Johnson, selling crack
cocaine to the defendant’s girlfriend, Sherri Clarke. The
defendant then beat the victim with a baseball bat and
stabbed him nineteen times with a knife, killing him.
The defendant then cut off the victim’s penis and left
the murder scene with Clarke, taking the victim’s penis,
identification, money, and drugs with him. The couple
went to their apartment in New Britain where the defen-
dant flushed the victim’s penis down the toilet. The
couple also showered, changed clothing, and smoked
crack.
In the early morning of August 30, 2009, the defendant
and Clarke returned to the murder scene and set fire
to the victim’s car. Later that morning, the couple pur-
chased two hand saws from The Home Depot and again
returned to the murder scene. There, they used the
hand saws to cut the victim’s body into fifteen pieces
and they then hid the victim’s remains in the nearby
woods.
The defendant subsequently was arrested in connec-
tion with the murder and dismemberment of the victim.
The state charged the defendant in a two count, single
long form information with murder in violation of § 53a-
54a in count one and tampering with physical evidence
in violation of § 53a-155 (a) (1) in count two. Following
a jury trial, the defendant was convicted on both
counts,1 and the court, D’Addabbo, J., sentenced the
defendant to a total effective sentence of sixty-five years
incarceration. This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that the court abused its
discretion by denying his motion to sever the murder
count from the tampering count. His claim is twofold.
The defendant first relies on State v. Boscarino, 204
Conn. 714, 723, 529 A.2d 1260 (1987),2 to argue that the
denial of his motion to sever prejudiced his right to
a fair trial because the jury, after hearing the facts
underlying the tampering charge, which he argues were
particularly brutal, violent, and shocking, could not
fairly consider his guilt as to the murder charge. In
addition, the defendant argues that the court’s denial
of his motion to sever compromised his fifth amend-
ment right to testify in connection with the murder
charge but to remain silent with respect to the tamper-
ing charge.
The following additional procedural facts are relevant
to the resolution of the defendant’s severance claims.
On May 10, 2012, the state filed a substitute long form
information charging the defendant in count one with
murder in violation of § 53a-54a and in count two with
tampering with physical evidence in violation of § 53a-
155 (a) (1). The factual underpinning of the tampering
charge related to the state’s claim that, on the day after
the murder, the defendant, with the help of his girl-
friend, cut up and concealed the victim’s body by plac-
ing it in various locations in the woods. In response,
on May 15, 2012, the defendant filed a motion to sever
the murder charge from the tampering charge.
At the May 24, 2012 hearing on the severance motion,
the defendant made a twofold claim. First, he argued
that being required to defend the murder and tampering
charges in the same trial would substantially prejudice
him because the facts underlying the tampering charge
were too brutal, violent, and shocking to allow the jury
to consider fairly and independently his guilt as to the
murder charge.3 Second, he claimed that he wished to
testify in response to the murder charge but not in
regard to the tampering charge, and that being required
to defend both charges in the same trial prejudiced his
right, alternately to present a defense to the murder
charge while preserving his right to remain silent as to
the tampering charge. As to this second aspect of his
claim regarding severance, the defendant stated that
he had ‘‘substantial evidence to offer to the fact finder
related to the cause of death of [the victim]. If [his]
testimony is believed his conduct could be justified.’’
In addition, he stated that ‘‘[i]n contrast . . . there
[was] no advantage to him or incentive to him to testify
on the tampering case.’’
The state responded that severance was unwarranted
where the charges arise from the same criminal act or
transaction and the offenses are of the same character.
Specifically, the state argued that the burden rested on
the defendant to prove that he would be substantially
prejudiced by failing to sever the charges for trial and
that the defendant had not only failed to meet this
burden, but had overlooked it entirely because the evi-
dence regarding each charge would, in fact, be admissi-
ble regarding the other charge. Thus, the state claimed,
because the evidence would, in any event, be cross
admissible, the defendant could not prove any prejudice
by the joinder of the charges. In making this assertion,
the state noted that the defendant had acknowledged
that the evidence underlying the two charges would be
cross admissible if the charges were tried separately.4
On May 30, 2012, the court denied the defendant’s
motion in an oral ruling. The court noted that the burden
was on the defendant to prove that the charges should
be tried separately by establishing that the charges were
not of the same character and that the defendant had
not met this burden. As to the defendant’s first claim,
the court found that the ‘‘defendant [had] offered no
evidence or argument to support the proposition that
the offenses are not of the same character.’’ Further,
the court stated that ‘‘the evidence appears to be cross
admissible with respect to each count. Evidence that
a murder was committed appears to be admissible in
the count . . . alleging dismemberment and evidence
that the body was dismembered appears to be admissi-
ble in the count alleging murder, particularly the
expected testimony of the medical examiner.’’5
With respect to the defendant’s second claim, the
court concluded that the defendant had not met his
burden to prove that trying the cases together compro-
mised his right to testify in the murder charge and to
refrain from testifying in the tampering charge. The
court explained that it could grant the defendant’s
motion on that ground only if the defendant made a
‘‘convincing showing that he has both important testi-
mony to give concerning one count and strong need to
refrain from testifying on the other. In making such a
showing it is essential that the defendant present
enough information regarding the nature of the testi-
mony which [he] is to give on one count, and his reasons
for not wishing to testify on the other . . . .’’ The court
then considered the defendant’s proffer and concluded
that the defendant had not met his burden. The court
noted that the defendant merely had stated that he
had ‘‘substantial information to present on [the murder]
count including information relevant to the defense of
justification; [but] other than this presentation, there is
no further information concerning the testimony as to
the murder count.’’ Additionally, the court stated that
the ‘‘defendant ha[d] indicated that he wishes to exer-
cise his fifth amendment right on the tampering with
evidence count’’ and that ‘‘the defendant offer[ed] no
information to support his position of having a, quote,
unquote, strong need to refrain from testifying.’’ As
a result, the court denied the defendant’s motion for
severance. During the court’s final instructions to the
jury, it informed the jury that the defendant had been
charged in two counts and that it was the jury’s duty
to determine the guilt or nonguilt of the defendant as
to each count separately.6
Before we address the defendant’s claims, we set
forth the standard under which we review a trial court’s
denial of a defendant’s motion to sever for trial charges
already joined in a single information. Practice Book
§ 41-18 provides: ‘‘If it appears that a defendant is preju-
diced by a joinder of offenses, the judicial authority
may, upon its own motion or the motion of the defen-
dant, order separate trials of the counts or provide
whatever other relief justice may require.’’ The decision
to sever cases for trial ‘‘is within the sound discretion of
the trial court and that discretion must not be disturbed
unless it has been manifestly abused. . . . The discre-
tion of a court to order separate trials should be exer-
cised only when a joint trial will be substantially
prejudicial to the rights of the defendant, and this means
something more than that a joint trial will be less than
advantageous to the defendant. ‘‘ (Citation omitted;
internal quotation marks omitted.) State v. Rodgers, 198
Conn. 53, 63, 502 A.2d 360 (1985). On appeal, it is always
the defendant’s burden ‘‘to show that the denial of sever-
ance resulted in substantial injustice, and that any
resulting prejudice was beyond the curative power of
the court’s instructions.’’ (Internal quotation marks
omitted.) State v. Boscarino, supra, 204 Conn. 721; see
State v. Payne, supra, 303 Conn. 544 (‘‘[t]he defendant
bears a heavy burden of showing that [joinder] resulted
in substantial injustice, and that any resulting prejudice
was beyond the curative power of the court’s instruc-
tions’’ [internal quotation marks omitted]).
A
We first address the defendant’s contention that the
trial court improperly denied his motion to sever on
the grounds that the factual circumstances underlying
the tampering charge were so brutal, violent, and shock-
ing that they tended to arouse the passions of the jury
and render it unable to consider fairly and indepen-
dently the evidence against him in the murder charge.
See State v. Boscarino, supra, 204 Conn. 723 (‘‘acknowl-
edg[ing] that evidence of a defendant’s brutal or shock-
ing conduct in one case may compromise the jury’s
ability to consider fairly the charges against him in other
unrelated, but jointly tried cases’’). In response to this
claim, the state asserts that the court correctly denied
the defendant’s motion to sever because the defendant
did not make the threshold showing that the evidence
with respect to both charges was not cross admissible.
In short, the state argues that the court need only con-
sider the Boscarino factors if the court first makes a
determination that the evidence would not be cross
admissible. Here, the state notes that the defendant has
acknowledged cross admissibility and that admission,
supported independently by facts in the record, should
conclude this court’s consideration of the propriety of
the trial court’s ruling on the motion to sever. We agree.
‘‘In the trial court, when multiple charges have
already been joined in a single information by the state
pursuant to [General Statutes] § 54-57, and the defen-
dant has filed a motion to sever the charges for trial
pursuant to Practice Book § 41-18, the defendant bears
the burden of proving that the offenses are not of the
‘same character’; General Statutes § 54-57; and there-
fore that the charges should be tried separately.’’ State
v. Payne, supra, 303 Conn. 549. To meet this burden, the
defendant must prove that the evidence of the separate
charges would not be cross admissible if the cases were
tried separately. See State v. Fana, 109 Conn. App. 797,
804–805, 953 A.2d 898, cert. denied, 289 Conn. 936, 958
A.2d 1246 (2008). This is because ‘‘[when] evidence of
one incident would be admissible at the trial of the other
incident, separate trials would provide the defendant no
significant benefit. . . . Under such circumstances,
the defendant would not ordinarily be substantially prej-
udiced by joinder of the offenses for a single trial. . . .
Accordingly, we have found joinder to be proper [when]
the evidence of other crimes or uncharged misconduct
[was] cross admissible at separate trials.’’ (Internal quo-
tation marks omitted.) State v. Anderson, 318 Conn. 680,
692, 122 A.3d 254 (2015); see also State v. Crenshaw, 313
Conn. 69, 84, 95 A.3d 1113 (2014) (‘‘[w]e consistently
have found joinder to be proper if we have concluded
that the evidence of other crimes or uncharged miscon-
duct would have been cross admissible at separate tri-
als’’ [internal quotation marks omitted]); State v.
Schroff, 198 Conn. 405, 409, 503 A.2d 167 (1986) (con-
cluding that ‘‘[e]conomy and expedition of judicial
resources are not achieved when the same facts must
be proved to two different juries,’’ such as when one
charge directly resulted from other charge).
Once the defendant makes a threshold showing that
the evidence underlying the charges is not cross admis-
sible, on appeal the defendant then must prove that the
balance of the Boscarino factors weighs in favor of
severance, meaning that the denial of severance
resulted in substantial prejudice to the defendant that
the court’s curative instructions could not remedy. State
v. LaFleur, 307 Conn. 115, 159, 51 A.3d 1048 (2012). In
other words, the Boscarino factors are assessed only
if the evidence underlying the charges is not cross
admissible. Id. (‘‘[w]here evidence is cross admissible,
. . . our inquiry ends’’); see also State v. Fana, supra,
109 Conn. App. 804 (‘‘[a]t least with regard to the first
Boscarino factor, a defendant will not be able to demon-
strate prejudice by a consolidation of charges if the
evidence presented would have been cross admissible
at the two trials, were the charges tried separately’’).7
If the defendant fails to make either showing, the
motion to sever must be denied as the defendant has
not carried his burden.
In the present case, the defendant did not challenge
before the trial court the cross admissibility of the evi-
dence if the charges were tried separately and makes
no attempt to do so before this court. Instead, he relies
solely on the second Boscarino factor to argue that the
court abused its discretion by denying his motion to
sever. This argument is not available to the defendant
because of the cross admissibility of the evidence. State
v. LaFleur, supra, 307 Conn. 155. Therefore, on review,
we need not discuss the comparative brutality of his
crimes or any of the Boscarino factors.
Our review of the record reveals that the defendant’s
acknowledgement at trial that the evidence would be
cross admissible was well supported. Accordingly, even
without the defendant’s concession of cross admissibil-
ity, it is likely that the court, on the basis of a proffer
from the state, reasonably would have been entitled to
come to the same conclusion. As the court explained
in its oral ruling denying the defendant’s motion for
severance, ‘‘the evidence appears to be cross admissible
with respect to each count. Evidence that a murder was
committed appears to be admissible in the count . . .
alleging dismemberment and evidence that the body
was dismembered appears to be admissible in the count
alleging murder, particularly the expected testimony of
the medical examiner.’’ See State v. Moye, 119 Conn.
App. 143, 150, 986 A.2d 1134 (‘‘A trial court may admit
[e]vidence that an accused has taken some kind of
evasive action to avoid detection for a crime, such as
. . . concealment of evidence . . . [which] is ordi-
narily the basis for a charge on the inference of con-
sciousness of guilt. . . . In seeking to introduce
evidence of a defendant’s consciousness of guilt, [i]t is
relevant to show the conduct of an accused . . . which
may be inferred to have been influenced by the criminal
act.’’ [Internal quotation marks omitted.]), cert. denied,
297 Conn. 907, 995 A.2d 638 (2010). Therefore, because
the defendant has failed to show that the court’s denial
of his motion to sever caused him prejudice and that
the cases were not cross admissible, this aspect of his
severance claim fails.
B
The defendant next claims that the court’s denial of
his motion to sever violated his fifth amendment right
to remain silent with respect to the tampering charge
and to testify with respect to the murder charge. In
response, the state argues that the court did not abuse
its discretion in denying the defendant’s motion to sever
on this basis because the defendant did not sustain his
burden of demonstrating to the trial court that a joint
trial on both charges would impair his fifth amendment
right. We agree with the state.
In State v. Schroff, supra, 198 Conn. 409, our Supreme
Court decided that ‘‘no need for a severance exists until
the defendant makes a convincing showing that he has
both important testimony to give concerning one count
and strong need to refrain from testifying on the other.’’
(Internal quotation marks omitted.) ‘‘In making such a
showing, it is essential that the defendant present
enough information—regarding the nature of the testi-
mony he wishes to give on [some counts] and his rea-
sons for not wishing to testify on [others]—to satisfy
the court that the claim of prejudice is genuine and to
enable it intelligently to weigh the considerations of
economy and expedition in judicial administration
against the defendant’s interest in having a free choice
with respect to testifying.’’ (Internal quotation marks
omitted.) State v. Marsala, 43 Conn. App. 527, 535–36,
684 A.2d 1199 (1996), cert. denied, 239 Conn. 957, 688
A.2d 329 (1997).
From the record, we conclude that the defendant
failed to sustain his burden of showing that the denial
of his motion to sever resulted in substantial prejudice
to his fifth amendment rights. Specifically, the defen-
dant provided the court with no information, let alone
enough information, for a convincing showing that he
had a genuine need to testify on the murder charge and
a strong need to refrain from testifying on the tampering
charge. The only information that the court had before
it from which to assess the nature and substance of the
defendant’s proposed testimony was defense counsel’s
statement that ‘‘[the defendant] intends to testify as to
the murder charge. He will testify, he will offer substan-
tial evidence before the fact finder.’’ In its oral ruling
denying the defendant’s motion to sever, the court
noted that ‘‘other than this presentation, [the defendant
offered] no further information concerning [his pro-
posed] testimony as to the murder count.’’ The defen-
dant’s showing regarding his reason to refrain from
testifying on the tampering count was likewise nonde-
script. He merely informed the court, in conclusory
fashion, that he did not plan to testify as to the tamper-
ing charge if the charges were tried separately. At no
point did the defendant present any information as to
why he did not plan to testify regarding the tampering
charge and never identified a ‘‘strong need to refrain
from testifyng on the [tampering charge].’’ (Internal
quotation marks omitted.) State v. Schroff, supra, 198
Conn. 409.
The defendant’s general assertions, unsupported by
any specific proffer, were insufficient to meet his heavy
burden of demonstrating that the denial of his motion to
sever would substantially prejudice his right to remain
silent as to one charge and to testify as to the other.
See id. Therefore, ‘‘[t]he defendant’s complete failure
to substantiate his claim of prejudice falls far short of
the ‘convincing showing’ required by our cases.’’ Id.,
410. In sum, the court’s denial of the defendant’s motion
to sever was not an abuse of discretion.
II
The defendant next claims that the trial court improp-
erly denied his motion to suppress certain incriminating
statements that he had made to correction officers at
the MacDougal-Walker Correctional Institution (Walker
facility), which he contends were the product of custo-
dial interrogation and made without the benefit of hav-
ing been accorded his Miranda rights. See Miranda v.
Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966). The defendant also claims that his
statements were obtained in violation of his sixth
amendment right to counsel. See Massiah v. United
States, 377 U.S. 201, 205–206, 84 S. Ct. 1199, 12 L. Ed.
2d 246 (1964). To prevail on his claims, the defendant
must prove that state law enforcement officials pur-
posefully elicited incriminating statements from him
while he was in their custody and subject to custodial
interrogation. Miranda v. Arizona, supra, 444. The state
responds that these claims must fail because the record
demonstrates that the defendant was never subject to
custodial interrogation. We agree with the state.
The following additional procedural history and facts,
as found by the trial court, are relevant to our disposi-
tion of the defendant’s suppression claims. The defen-
dant was charged and arraigned on September 9, 2009,
in the Bristol Superior Court, at which time a public
defender was appointed for his representation and a
surety bond was set at five million dollars. On Septem-
ber 17, 2009, the case was transferred to the New Britain
judicial district and a New Britain public defender
entered an appearance on behalf of the defendant in
lieu of his prior counsel. On May 16, 2012, the defendant
filed a motion to suppress certain statements made to
correction officers at the Walker facility. The court held
an evidentiary hearing on the defendant’s motion on
May 24 and 25, 2012. On June 20, 2012, the parties
filed memoranda of law and the court heard argument
regarding the motion. On August 28, 2012, the court filed
a memorandum of decision denying the defendant’s
motion to suppress.
In its memorandum of decision, the court set forth
the following as part of its factual findings: ‘‘On Septem-
ber 25, 2009, the defendant was returning by marshal
transportation to the [Walker facility] after a G.A. 7
Meriden Superior Court appearance. Upon his return,
the defendant, as with all prisoners returning from court
appearances, was brought to the admitting and pro-
cessing unit. Correctional Officer Kevin Cashman testi-
fied that when the defendant returned from his court
appearance, he and other inmates entered the admitting
and processing unit ‘gang’ chained. These inmates,
including the defendant, were placed in a ‘gang cell’ for
identification purposes. At this location, the restraints
were removed from the defendant, and he and other
inmates proceeded to a smaller, separate cell area
where a strip search was conducted. The defendant
was not shackled, but under supervision. Following that
strip search, the inmates received a meal and were
directed to another holding cell, which was specific to
the inmate’s particular correctional center or housing
area. This ‘destination’ holding cell is approximately
twenty feet by fifty feet and is capable of holding up
to forty-eight inmates. [Cashman] testified that on Sep-
tember 25, 2009, the defendant, upon his return from his
court appearance, was processed at the Walker [facility]
admitting and processing unit in this fashion.
‘‘[Correctional] Officer [Serge] Duquette testified that
while assigned to the admitting and processing unit at
the Walker facility on September 25, 2009, he recognized
the defendant as someone from his hometown of New
Britain as he was taking him from the large holding
area to the strip search area. [Duquette] called the
defendant by his street name, ‘Percocet.’ Duquette testi-
fied that he also recognized the defendant’s girlfriend
from growing up in New Britain.
‘‘When the defendant was in the destination holding
cell, [Duquette] and the defendant had a conversation.
Duquette testified that during this conversation, the
defendant made incriminating statements to him about
a criminal act.
‘‘The defendant’s ‘destination’ holding cell was
approximately ten feet from the office of [Cashman].
While in his office, [Cashman] heard a ‘part of the con-
versation’ between [Duquette] and the defendant.
[Cashman] knew the defendant as an inmate, and was
aware that the defendant was familiar with Cashman
as a correctional officer. [Cashman] testified that as
part of that conversation, he heard the defendant use
the ‘N’ word.8 This immediately caused safety concerns
for Cashman, causing him to instruct [Duquette] to
remove the defendant from the holding area and bring
him to [Cashman’s] office, while the defendant was
waiting to be transported to his housing unit in the
Walker facility.
‘‘While in Cashman’s office, the defendant, unshack-
led, continued his conversation with [Duquette], making
what are described as incriminating statements. The
testimony indicated that [Cashman] made no inquiry of
the defendant while he was in his office. The defendant
remained in [Cashman’s] office for approximately five
minutes and then was transported by [Cashman] to
the defendant’s housing unit. There was no evidence
presented that [Cashman] or [Duquette] provided the
defendant with ‘Miranda warnings.’ ’’ (Footnote in
original.)
Before addressing the defendant’s claims, we set
forth the applicable standard of review and controlling
legal principles that guide our assessment. ‘‘[T]he prose-
cution may not use statements, whether exculpatory
or inculpatory, stemming from custodial interrogation
of the defendant unless it demonstrates the use of pro-
cedural safeguards effective to secure the privilege
against self-incrimination.’’ Miranda v. Arizona, supra,
384 U.S. 444. These procedural safeguards are generally
referred to as Miranda warnings. See id., 444–45. A
defendant is entitled to Miranda warnings only if he
can prove that he was subject to custodial interrogation;
State v. Pinder, 250 Conn. 385, 409, 736 A.2d 857 (1999);
which requires the defendant to prove that two thresh-
old conditions are satisfied: ‘‘(1) the defendant must
have been in custody; and (2) the defendant must have
been subjected to police interrogation.’’ (Internal quota-
tion marks omitted.) State v. Gonzalez, 302 Conn. 287,
294, 25 A.3d 648 (2011).
A person is in custody for Miranda purposes ‘‘only
if, in view of all the surrounding circumstances, a rea-
sonable person would have believed that he was not
free to leave.’’ (Internal quotation marks omitted.) State
v. Kirby, 280 Conn. 361, 393, 908 A.2d 506 (2006). ‘‘Two
discrete inquiries are essential to determine custody:
first, what were the circumstances surrounding the
interrogation; and second, given those circumstances,
would a reasonable person have felt he or she was
not at liberty to terminate the interrogation and leave.’’
(Internal quotation marks omitted.) State v. Turner, 267
Conn. 414, 434–35, 838 A.2d 947, cert. denied, 543 U.S.
809, 125 S. Ct. 36, 160 L. Ed. 2d 12 (2004).
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 attendant
to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response
from the suspect.’’ Rhode Island v. Innis, 446 U.S. 291,
301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). ‘‘Whether
a defendant in custody is subject to interrogation neces-
sarily involves determining first, the factual circum-
stances 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 incriminat-
ing response. . . . A practice that the police should
know is reasonably likely to evoke an incriminating
response from a suspect thus amounts to interrogation.
But, since the police surely cannot be held accountable
for the unforeseeable results of their words or actions,
the definition of interrogation 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.’’ (Citations omitted; emphasis in origi-
nal; internal quotation marks omitted.) State v. Canady,
297 Conn. 322, 335–36, 998 A.2d 1135 (2010).
‘‘As a general matter, the standard of review for a
motion to suppress is well settled. A finding of fact will
not be disturbed unless it is clearly erroneous in view
of the evidence and pleadings in the whole record
. . . . [W]hen [however] a question of fact is essential
to the outcome of a particular legal determination that
implicates a defendant’s constitutional rights, and the
credibility of witnesses is not the primary issue, our
customary deference to the trial court’s factual findings
is tempered by a scrupulous examination of the record
to ascertain that the trial court’s factual findings are
supported by substantial evidence. . . . [When] the
legal conclusions of the court are challenged, [our
review is plenary, and] we must determine whether
they are legally and logically correct and whether they
find support in the facts set [forth] in the memorandum
of decision . . . .’’ (Internal quotation marks omitted.)
State v. Gonzalez, supra, 302 Conn. 295–96.
In the present case, the defendant does not challenge
the court’s factual findings. Instead, the defendant chal-
lenges only the court’s legal conclusions on the basis
of those findings. We conclude that the record supports
the conclusion that defendant was not interrogated as
that term is understood in Miranda, and, therefore, we
need not reach the question of whether he was held in
custody. In reaching this conclusion, we find State v.
Vitale, 197 Conn. 396, 497 A.2d 956 (1985), to be instruc-
tive. In Vitale, an incarcerated defendant made
unprompted inculpatory statements to a uniformed cor-
rection officer who, having attended high school with
that defendant, had started a conversation with him
about ‘‘ ‘high school and playing football and things.’ ’’
Id., 410. Despite the fact that the conversation in Vitale
had turned to ‘‘why that defendant had been arrested’’;
id.; before the defendant made the inculpatory state-
ments, our Supreme Court concluded that that defen-
dant’s statements were not made in response to
interrogation. Id., 412. Rather, the court determined that
the defendant’s inculpatory statements ‘‘were volun-
teered by the defendant during a general conversation
between him and [the correction officer], wherein the
defendant spoke freely about the offenses with which
he was charged.’’ Id.
The facts we confront in the present case are akin
to those found in Vitale. Here, the record demonstrates
that the defendant freely volunteered the statements
during a neutral conversation with Duquette, who initi-
ated the conversation in order to relieve the tension
of a stressful and invasive intake process. Duquette
testified that he recognized the defendant from growing
up in the same town, called the defendant by his street
name, asked the defendant whether he was in court
for what had occurred in New Britain, and told the
defendant that he recognized his girlfriend from grow-
ing up in New Britain for the purpose of making an
uncomfortable situation more cordial. In our view,
those questions fairly can be construed as no more
than small talk initiated by a correction officer for the
purpose of defusing a stressful and invasive intake pro-
cess and not for the purpose of soliciting incriminating
information from the defendant. See id., 412; see also
Rhode Island v. Innis, supra, 446 U.S. 300 (‘‘‘[i]nterroga-
tion,’ as conceptualized in the Miranda opinion, must
reflect a measure of compulsion above and beyond that
inherent in custody itself’’). The record reveals that,
indeed, the only question that plausibly could have been
seen as focused on the defendant’s potential criminal
liability concerned whether the defendant had been in
court in connection with the New Britain murder. The
answer to that question, at its most harmfulness to
the defendant, could have elicited an answer that yes,
indeed, that was the reason for his presence in court
on that date. That answer, however, would not have
been inculpatory. The defendant’s affirmation of the
reason for his presence at court would have added
nothing to the state’s case; it would have contributed
nothing to satisfy the state’s burden of proving the
defendant’s guilt. The defendant’s frank answer to
Duquette’s question about his presence in court could
provide no proof of the defendant’s guilt. As such, the
question was not reasonably likely to elicit an incrimi-
nating response from the defendant.
In addition, the record does not disclose that Cash-
man, through direct questioning or other conduct, sub-
jected the defendant to any questioning that elicited an
incriminating response.9 As with Duquette, Cashman
did not elicit from the defendant any of his unfore-
seeably volunteered statements regarding his culpabil-
ity. State v. Canady, supra, 297 Conn. 335–36 (law
enforcement cannot be held accountable for unforesee-
able results of their questions or conduct). On the basis
of the court’s findings, which are supported by the
record, we conclude that the trial court properly deter-
mined that the defendant had not been subject to inter-
rogation for the purposes of Miranda when he made
the statements at the Walker facility. Having concluded
that the defendant was not subject to an interrogation
as contemplated in Miranda, we need not consider
whether, in addition, he was in custody for Miranda
purposes at the time of the conversations in question.
Similarly, our conclusion that the defendant was not
subject to interrogation belies his sixth amendment
claim that statements that were ‘‘deliberately elicited
from him after he had been indicted and in the absence
of his counsel’’; Massiah v. United States, supra, 377
U.S. 206; were used against him at trial. ‘‘Because the
right to counsel applies only when the government
deliberately elicits incriminating information, the defen-
dant’s sixth amendment right to counsel was not vio-
lated. United States v. Henry, 447 U.S. 264, 270, 100 S.
Ct. 2183, 2186, 65 L. Ed. 2d 115 (1980); Massiah v.
United States, [supra, 206].’’ State v. Vitale, supra, 197
Conn. 412. Accordingly, we conclude that the court
properly denied the defendant’s motion to suppress
the statements.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At trial, the defendant testified on his own behalf. He did not dispute
killing the victim, cutting off the victim’s penis and flushing it down the
toilet, burning the victim’s car, purchasing the hand saws and using them
to dismember the victim’s body, and hiding the body parts in the woods.
Instead, he testified that he happened to pass by the murder scene, where
the victim was selling crack cocaine to Clarke, and, believing that the victim
was sexually assaulting Clarke, went berserk and ‘‘blacked out.’’ The court
instructed the jury on the defense of others; see General Statutes § 53a-19;
and extreme emotional disturbance affirmative defenses along with the
lesser included offenses of intentional manslaughter in the first degree,
reckless indifference manslaughter in the first degree, and manslaughter in
the second degree.
2
‘‘In State v. Boscarino, supra, 204 Conn. 723, [our Supreme Court] applied
three factors to determine whether joinder was proper: (1) whether the
factual similarities . . . [although] insufficient to make the evidence in each
case substantively admissible at the trial of the others, were significant
enough to impair the defendant’s right to the jury’s fair and independent
consideration of the evidence in each case; (2) whether [t]he prejudicial
impact of joinder in these cases was exacerbated by the violent nature of
the crimes with which the defendant was charged . . . [giving] the state
the opportunity to present the jury with the intimate details of each of these
offenses, an opportunity that would have been unavailable if the cases had
been tried separately; and (3) whether [t]he duration and complexity of the
trial also enhanced the likelihood that the jury would weigh the evidence
against the defendant cumulatively, rather than independently in each case.’’
(Internal quotation marks omitted.) State v. Payne, 303 Conn. 538, 543 n.2,
34 A.3d 370 (2012).
3
Specifically, the defendant’s counsel stated: ‘‘Your Honor, having read
the long form information I think there will be evidence offered from the
state that the victim suffered twenty-two stab wounds and there [were] two
areas of blunt force trauma to the victim which could have caused his death.
That would be I anticipate what the medical examiner’s testimony will be.
That’s [the murder charge]. Okay. Ordinarily . . . I would say that’s a strong
showing of violent, brutal and shocking conduct. Okay. But arguably [the
tampering charge] is even more shocking because [the tampering charge]
alleges severance of . . . the victim into fifteen separate pieces . . . . [So]
I think clearly under any notion of what is brutal, violent or shocking [the
tampering charge] . . . meets that definition.’’
4
During the hearing, the court asked the defendant, ‘‘what if evidence of
the [tampering] count comes in even if the case is severed,’’ to which defense
counsel responded, ‘‘clearly I anticipate that regardless of the court’s ruling
that . . . the facts surrounding the tampering are going to be part of the
[murder charge’s] factual basis to the fact finder.’’
5
The court also considered, and rejected, the defendant’s Boscarino claim,
stating that the court ‘‘cannot say that one act is necessarily more brutal
or shocking than any other. In [any] event based on the arguments of the
parties it appears that evidence of both acts would be admissible in both
counts whether they were severed or not.’’
6
The court instructed: ‘‘Each count alleges a separate crime. It will be
your duty to consider each count separately and decide the guilt or nonguilt
of the defendant. This means that the determination on one count or charge
does not automatically make the defendant guilty or not guilty on any other
count or charge.’’
7
It is important to note that this case concerns the denial of a defendant’s
motion for severance rather than a court’s consideration of a motion for
joinder filed by the state. In Payne, our Supreme Court rejected the blanket
rule in favor of joinder, and, instead, adopted a test for determining which
party has the burden to join or sever charges for trial based on the form
of the charging document. State v. Payne, supra, 303 Conn. 548–50. As
previously stated, if the charges are joined in a single information, the
defendant bears the burden of proving that the charges should be tried
separately. Id., 549. In contrast, ‘‘when charges are set forth in separate
informations . . . and the state has moved in the trial court to join the
multiple informations for trial, the state bears the burden of proving that
the defendant will not be substantially prejudiced by joinder pursuant to
Practice Book § 41-19. The state may satisfy this burden by proving, by a
preponderance of the evidence, either that the evidence in the cases is cross
admissible or that the defendant will not be unfairly prejudiced pursuant
to the Boscarino factors.’’ (Footnote omitted.) Id., 549–50.
8
The descriptor ‘‘N’’ word signifies a racially offensive and inflamma-
tory term.
9
The defendant argues that Cashman subjected the defendant to Miranda
interrogation by remarking ‘‘Really?’’ after the defendant had finished his
statements. This argument is unavailing, however, because the defendant
voluntarily made all of the statements he then sought to suppress prior to
Cashman’s remark. Therefore, assuming, arguendo, that the remark would
constitute interrogation—a doubtful assumption under the circumstances—
the remark prompted no statement that the state sought to use against the
defendant in violation of his fifth amendment rights.