State v. Cervantes

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STATE OF CONNECTICUT v. MARCELO CERVANTES
(AC 37649)
Sheldon, Mullins and Flynn, Js.
Argued January 3—officially released April 4, 2017
(Appeal from Superior Court, judicial district of New
Haven, Vitale, J. [motion to suppress]; Clifford, J.
[judgment].)
Manuel A. Suarez, assigned counsel, for the appel-
lant (defendant).
Matthew R. Kalthoff, deputy assistant state’s attor-
ney, with whom, on the brief, were Michael Dearington,
former state’s attorney, and John P. Doyle, Jr., senior
assistant state’s attorney, for the appellee (state).
Opinion
MULLINS, J. Following a conditional plea of nolo
contendere, entered pursuant to General Statutes § 54-
94a,1 the defendant, Marcelo Cervantes, appeals from
the judgment of conviction of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (1)
and home invasion in violation of General Statutes
§ 53a-100aa (a) (1). The defendant entered his condi-
tional plea following the court’s denial of his motion
to suppress certain oral statements that he made to
members of the Hamden Police Department. He made
the statements during, what he claims to have been, a
custodial interrogation inside of a police vehicle, with-
out the benefit of having been advised of his constitu-
tional rights under Miranda v. Arizona, 384 U.S. 436,
478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The state
argued, and the trial court agreed, that the challenged
statements should not be suppressed because, although
the defendant, concededly, was interrogated in the vehi-
cle by the police before he made such statements, he
was not in custody at that time for purposes of Miranda.
On appeal, the defendant claims that the court erred
in denying his motion to suppress. We affirm the judg-
ment of the trial court.
On August 12, 2014, before the defendant entered a
conditional plea of nolo contendere, the state recited
the following facts. On April 14, 2013, the Hamden
Police Department received a 911 call reporting that a
twenty-two year old female had been sexually
assaulted. The caller, the victim in this case, stated that,
at approximately, 2 a.m., she had awoken to find an
unknown Hispanic male lying on top of her in her bed.
The assailant removed her clothing, forced her to
engage in penile-vaginal intercourse, oral intercourse,
and attempted anal intercourse. Although the victim
attempted to fight off the assailant, her resistance was
met with strangulation, suffocation, and a punch to the
face. The assault continued until approximately 4:15
a.m. At that time, the assailant left the premises after
placing a sheet over the victim’s head and telling her
that if she told anyone of the assault, he would kill her.
The victim sustained injuries to her neck and her face.
Subsequently, the police developed the defendant as
a suspect and went to speak with him at his place of
employment. After some initial conversation, the defen-
dant was transported to the Hamden Police Depart-
ment. During the police interview prior to arriving at
the police department, the defendant admitted to some
of the conduct that occurred at the victim’s residence,
although he described the encounter differently than
did the victim.
The police informed the defendant of his constitu-
tional rights in accordance with Miranda after they
arrived at the police department, and the defendant
signed a waiver of rights form. He then gave further
statements about what had occurred on the night of
April 14, 2013. Thereafter, the police arrested the
defendant.
In a long form information, the state charged the
defendant with two counts of sexual assault in the first
degree, and one count of attempt to commit sexual
assault in the first degree, home invasion, burglary in
the first degree in violation of General Statutes § 53a-
101 (a) (1), and strangulation in the second degree in
violation of General Statutes § 53a-64bb (a).
On May 31, 2013, the defendant filed a motion to
suppress the oral statements he had made to detectives
while in the police vehicle. That motion was heard on
April 9 and 17, 2014. In a June 10, 2014 memorandum
of decision, the court denied the defendant’s motion.
Subsequently, on August 12, 2014, the defendant
entered a conditional plea of nolo contendere, and, per
§ 54-94a, the court made a finding that the denial of the
suppression motion was dispositive of the case.2 This
appeal followed.
The defendant claims that the trial court improperly
denied his motion to suppress statements he made to
the police while in the police vehicle. He argues that
he was in police custody the moment he entered the
police vehicle and that the statements he made during
this custodial interrogation should have been sup-
pressed because the detectives failed to provide him
with Miranda warnings. The state concedes that the
defendant was interrogated by two detectives from the
Hamden Police Department while in the police vehicle,
but it argues that the defendant was not in custody for
purposes of Miranda because he voluntarily spoke with
the detectives, voluntarily entered the police vehicle,
and voluntarily accompanied the detectives to the
police station. We agree with the state.
Following the hearing on the motion to suppress, the
court, in its memorandum of decision, set forth the
following findings of fact, which are relevant to our
analysis. ‘‘Detective Brian Stewart and Detective Wil-
liam C. Onofrio of the Hamden Police Department were
assigned to investigate an alleged home invasion and
sexual assault that had occurred on April 14, 2013 . . .
in Hamden. During the course of the investigation,
police received descriptive information about the per-
petrator’s height, weight, and ethnicity. The alleged per-
petrator was described as a five feet, six, to five feet,
seven inches tall Hispanic male, with some sort of pro-
truding belly or stomach. . . . On or about May 16,
2013, Detective Onofrio received information related to
the case from Robert Carrasco. Carrasco left a voice
mail [message] on Onofrio’s phone. The information
from Carrasco was that an individual named Marcelino
had been observed making sexual advances to an intoxi-
cated female on the night of April 14, 2013, at a bar in
Hamden, named Andales. Carrasco believed Marcelino
to be a former employee of his business.3 Andales was
located in close proximately to [the victim’s residence].
Onofrio was the lead detective assigned to investigate
the case. . . . [On the basis of this and other] informa-
tion received from Carrasco, Onofrio decided to travel
to the Outback Steak House [Outback] located in South-
ington in an effort to determine the identity of . . .
Marcelino. . . .
‘‘The detectives traveled from Hamden to South-
ington in an unmarked police vehicle. It had no lights
affixed to the roof, nor any markings describing it as
a police vehicle. . . . Onofrio operated the vehicle,
and, when he arrived at Outback, he traveled through
the parking lot and parked in the rear. The vehicle
was not parked in a designated space. They arrived at
approximately 5 p.m. Outback . . . [is] located in a
plaza with other businesses nearby, although [it] ha[s]
its own parking lot. . . . The police vehicle was parked
approximately twenty-five feet away from some other
vehicles parked in the lot. . . . A back door, used by
the managers, would allow access to the rear of [Out-
back] and [the] parking lot, and [it] was located near
[a] dumpster. Six or seven [Outback] employees worked
in the area immediately adjacent to the back door. The
back door had a window, and an employee could look
out of the window if standing in front of the door. . . .
‘‘Onofrio and Stewart exited the vehicle and walked
to the front doors of [Outback]. . . . Each wore plain
clothes . . . . Either Onofrio or Stewart asked the
hostess if the manager was available. Stewart observed
an individual standing near the hostess who generally
satisfied the description of the alleged perpetrator. Ono-
frio and Stewart stepped outside of [Outback] to await
the manager. Eventually, manager Ryan Lucas came
outside to meet them. They identified themselves as
members of the Hamden Police Department. The detec-
tives explained that they were interested in speaking
with an individual named Marcelino. Lucas stated that
he did not have an employee named Marcelino. Lucas
next provided the detectives with the restaurant’s
employee roster, which did not contain the name Mar-
celino. Given his earlier observation, Stewart asked
Lucas the identity of the Hispanic male that had been
standing near the hostess. When told by Lucas that the
individual’s name was Marcelo, the detectives asked
Lucas to inquire if Marcelo would be willing to speak
with them.
‘‘Lucas left Onofrio and Stewart outside and returned
to the [Outback]. Shortly thereafter, Lucas proceeded
through the front doors with [the defendant]. . . . The
detectives asked the defendant for permission to speak
with him. The defendant agreed to speak with the detec-
tives, and Lucas returned to the [Outback]. . . . Ono-
frio, Stewart and the defendant began walking along
the side of the building toward the rear of the building.
Either Onofrio or Stewart told the defendant that they
were investigating a crime but, at that point, did not
provide the defendant with details. The defendant con-
versed with the detectives in English and indicated no
difficulty with English comprehension. The defendant
then was asked by detectives if he would be willing to
speak to them in the police vehicle for privacy. The
defendant agreed and was very cooperative. . . . The
parking lot was busy, and [the] detectives did not want
to discuss sexual assault allegations in a public park-
ing lot.4
‘‘The defendant sat in the front seat of the vehicle.
He was not physically placed into the vehicle by either
detective. He was not directed to the vehicle by either
detective pointing to it, nor was he physically led to
the vehicle. The defendant used his own volitional
movements to sit down in the front seat of the vehicle.
He was not handcuffed. There is no evidence that any
of the doors of the vehicle were locked. Onofrio then sat
in the operator’s seat, and Stewart [sat] in the backseat.
Although their service weapons were visible, neither
detective handled, touched, or unholstered their
weapon. Neither detective wore a bulletproof vest, or
carried a baton, or spray canister. The vehicle did not
contain a cage separating the front and back seats. . . .
‘‘Onofrio, at that point, further explained to the defen-
dant that they were investigating a rape allegation and
that a female had made a complaint that the police
were pursuing. The defendant was asked if he had any
information regarding the complaint. The defendant
then described a consensual sexual encounter.
Although he was nervous, the defendant was very coop-
erative and wanted to clear up the matter. He denied
any wrongdoing. The detectives allowed him to tell his
story and asked questions in an effort to clarify his
account. The defendant remained in the vehicle, speak-
ing with the detectives in the public parking lot for
approximately fifteen to twenty minutes. The detectives
never expressly told the defendant at any point during
any of their interactions that he did not have to speak
with them and could leave or stop talking at any
time. . . .
‘‘[T]he defendant was now a suspect. Although he
had the ability to leave, the defendant was asked if he
would be willing to speak to police further at the Ham-
den Police Department. The defendant was not told
that he had to go to the police department. The defen-
dant agreed to travel to the Hamden Police Department
to continue the interview. Onofrio called the sergeant
on duty to notify him that the defendant had agreed to
be interviewed at the police department. The defendant
was given the opportunity to drive his own vehicle to the
police department. The defendant declined, indicating
that, although he had a car, he did not have a driver’s
license.5 The defendant could see his own vehicle from
the police vehicle. The detectives did not inform Lucas
that the defendant was leaving the premises with them,
nor did the defendant ask to speak to Lucas before
leaving . . . with police. The defendant left some prop-
erty at [Outback], including his vehicle. The defendant
did not tell the police about the property, or ask to
retrieve it, nor did [the] police ask him about his need
to retrieve any property.
‘‘While driving from Southington to Hamden, the
defendant became emotional. He feared that his girl-
friend and family would find out that he had engaged
in a consensual sexual encounter with another woman.
Most of the conversation in the car en route to Hamden
concerned his girlfriend and his family. Once in Ham-
den, Onofrio drove the vehicle [by the victim’s resi-
dence], whereupon the defendant identified the
house . . . .
‘‘The defendant then was brought to the Hamden
Police Department, where he was brought inside
through the employee entrance. He was not handcuffed,
nor pulled or pushed into the building or interview
room. He eventually was provided with Miranda warn-
ings at approximately 6:29 p.m. State’s exhibit 1, a CD of
the interview of the defendant at the police department,
does not demonstrate any difficulty on the part of the
defendant to either speak or understand English. The
defendant acknowledged during the interview that he
had accompanied Onofrio and Stewart to the police
department to further discuss the incident.’’ (Footnotes
added; internal quotation marks omitted.)
After finding those facts, the court concluded that the
defendant was not in custody during his interrogation
because he voluntarily spoke with the detectives, volun-
tarily accompanied them to the police vehicle, and vol-
untarily accompanied them to the Hamden Police
Department. The court, thereafter, denied the defen-
dant’s motion to suppress the statements he made to
Onofrio and Stewart while in the police vehicle.
The defendant argues that he was in custody as soon
as he entered the police vehicle, and that he underwent
a custodial interrogation for ninety minutes thereafter.
The state, although acknowledging that the detectives
conducted an interrogation while in the vehicle, con-
tends that the trial court properly concluded that the
defendant, at all relevant times, was in the police vehicle
voluntarily and was not in custody. We agree with
the state.6
We first set forth the principles that guide our analy-
sis. ‘‘In order to establish that he was entitled to
Miranda warnings, a defendant must show that he was
in custody when he made the statements and that he
made the statements in response to police questioning.’’
State v. Arias, 322 Conn. 170, 177, 140 A.3d 200 (2016).
‘‘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 objective 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. . . .
‘‘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 . . . .’’ (Citations omit-
ted; emphasis omitted; footnote omitted; internal quota-
tion marks omitted.) State v. Mangual, 311 Conn. 182,
193–94, 85 A.3d 627 (2014).
‘‘In assessing whether a person is in custody for pur-
poses of Miranda, 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.
. . . Any lesser restriction on a person’s freedom of
action is not significant enough to implicate the core
fifth amendment concerns that Miranda sought to
address.’’ (Internal quotation marks omitted.) State v.
Arias, supra, 322 Conn. 177.
In Mangual, our Supreme Court set forth several
‘‘nonexclusive . . . factors to be considered in
determining whether a suspect was in custody for pur-
poses of Miranda: (1) the nature, extent and duration
of the questioning; (2) whether the suspect was hand-
cuffed 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 deten-
tion; (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.’’ State v.
Mangual, supra, 311 Conn. 196–97.
We next set forth the standard of review we employ
when assessing the trial court’s denial of a motion to
suppress on the basis of the defendant’s failure to estab-
lish that he was in custody during an interrogation.
‘‘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. . . . In order
to determine the [factual] issue of custody, however,
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 sup-
ported by substantial evidence. . . .
‘‘The ultimate inquiry as to whether, in light of these
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 are bound
to accept the factual findings of the trial court unless
they are clearly erroneous, but we exercise plenary
review over the ultimate issue of custody.’’ (Citation
omitted; internal quotation marks omitted.) Id., 197.
With these principles in mind, we turn to the merits
of the defendant’s claim that his statements should have
been suppressed because he was in custody the moment
he entered the police vehicle, and that Onofrio and
Stewart then conducted an interrogation of him without
providing Miranda warnings. After applying the Man-
gual factors to the present case, we conclude that the
trial court properly determined that the defendant was
not in custody when he made oral statements to the
detectives while being interrogated in the police
vehicle.7
The record demonstrates that Onofrio and Stewart
asked Lucas to go back into Outback and ask the defen-
dant if he was willing to talk with them. The defendant
then came out, voluntarily, to speak with Onofrio and
Stewart. The detectives spoke with the defendant for
three to five minutes before asking him if he would be
willing to sit in the police vehicle for privacy. He agreed
and was very cooperative with the detectives. The vehi-
cle was located in the rear parking area of Outback,
and there was a window from which employees could
see that parking lot. Within a short period of time of
being inside the vehicle, the defendant made several
oral statements to the detectives, which he later sought
to suppress.
The defendant told the detectives that he was familiar
with the victim’s residence, having done work at that
location for the property owner. He also told the detec-
tives that he had met a woman in a bar who agreed to
have sexual relations with him at her home, which was
located at the victim’s address. He further stated that
he then parked his vehicle at a gas station not far from
that residence. Finally, he stated that he had gone to
the victim’s home where he engaged in sexual relations
with a woman, although he contended those relations
were consensual.
After being in the parked vehicle for approximately
twenty minutes, the detectives asked the defendant if
he would accompany them to the Hamden Police
Department, and the defendant agreed. The detectives
asked the defendant if he wanted to drive himself, but
the defendant declined because he did not have a valid
driver’s license, although his car was parked at Outback.
During the drive to the police department, the defen-
dant primarily discussed his girlfriend and his family.
He told the detectives that he was concerned that his
girlfriend would find out that he had engaged in sexual
relations with another woman. He also cried. While
driving to the police station, the detectives also drove
past the victim’s residence, and the defendant identified
the house. Although the defendant claims that the drive
by the victim’s house further demonstrates that he was
in custody, there is nothing in the record that would
indicate that this somehow transformed a noncustodial
interrogation into a custodial interrogation. Indeed, at
that point, the defendant already had admitted that he
was familiar with the property and that he had engaged
in sexual relations with a woman at that location on
the night of April 13, 2013.
Looking at the circumstances presented here, nothing
in the record suggests that, when the defendant made
his incriminating statements to the detectives, there
was any restraint on his freedom of movement to the
degree associated with a formal arrest. The record
shows that only two plainclothed detectives, Onofrio
and Stewart, went to speak with the defendant at his
job. When the detectives arrived, they first asked the
manager to ask the defendant if he would be willing to
speak with them. The detectives did not compel the
defendant to speak with them, but, rather, he agreed
and voluntarily spoke with the detectives outside of
Outback, in a public place with which he was familiar.
Indeed, the defendant stated that he wanted to ‘‘clear
up the matter.’’ There is no indication that Onofrio and
Stewart presented a show of force somehow orches-
trated to overpower the defendant’s will to resist the
interview and compel him to speak. In other words, this
was not a police dominated atmosphere that contained
inherently compelling pressures upon the defendant.
As the detectives conversed with the defendant out-
side, they asked him whether he would be willing to
continue their conversation in their vehicle. The defen-
dant was neither ordered nor forced into the vehicle.
Rather, he voluntarily agreed to move the somewhat
personal conversation from an outdoor area into the
police vehicle. At no point was the defendant hand-
cuffed, and the detectives did not isolate him from the
public. Although both detectives wore their service
revolvers, those revolvers properly were holstered, the
detectives never intimated that those weapons might
be used, and they did not use any other kind of force
or threat of force before or during their questioning.
Finally, after the defendant agreed to go to the police
station, the detectives gave the defendant the option
of driving himself rather than riding with them in the
police vehicle. The defendant rejected the detectives’
offer for him to leave their vehicle and drive himself,
and, instead, he agreed to have the detectives drive him
to the police station to continue their discussion.8 We
are convinced, on the basis of this record, that the
defendant’s discussions with the detectives were volun-
tary and that he was not in custody.
After considering all of the circumstances sur-
rounding the defendant’s questioning, we cannot con-
clude that a reasonable person in the defendant’s
position would have believed that his freedom of move-
ment was restrained to the degree associated with a
formal arrest. See State v. Arias, supra, 322 Conn. 177.
As such, we conclude that the defendant was not in
custody when he made his oral statements to the detec-
tives, and, therefore, the detectives were not required
to provide him with an advisement of his rights under
Miranda at that time. Accordingly, the trial court prop-
erly denied his motion to suppress.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 54-94a provides: ‘‘When a defendant, prior to the
commencement of trial, enters a plea of nolo contendere conditional on the
right to take an appeal from the court’s denial of the defendant’s motion
to suppress or motion to dismiss, the defendant after the imposition of
sentence may file an appeal within the time prescribed by law provided a
trial court has determined that a ruling on such motion to suppress or motion
to dismiss would be dispositive of the case. The issue to be considered in
such an appeal shall be limited to whether it was proper for the court to
have denied the motion to suppress or the motion to dismiss. A plea of nolo
contendere by a defendant under this section shall not constitute a waiver
by the defendant of nonjurisdictional defects in the criminal prosecution.’’
2
In its appellate brief, the state raises an alternative argument that, if we
agree with the defendant that he was in custody for purposes of Miranda
and that the motion to suppress should have been granted, we should remand
the matter for further proceedings, including the possibility of a trial on the
charged crimes. The defendant in his main brief also contended that his
‘‘conditional plea of nolo contendere and subsequent conviction should be
vacated and the case should be remanded for a new trial with all inculpatory
statements made by the defendant suppressed.’’ The proposition that we
should remand this case for a potential trial, if we determined that the
motion to suppress should have been granted, caused us initially to question
whether this case properly was before this court in light of the mandatory
finding, necessary before a conditional plea would give the defendant a
right to appeal, that the motion to suppress is dispositive of the case.
The record in this case demonstrates that the trial court specifically told
the defendant, when accepting his conditional plea, that, after sentencing,
he had the right to appeal the denial of the underlying motion to suppress.
The court, however, then told the defendant that ‘‘if [he did] not prevail in
that appeal . . . the sentence . . . would remain in effect . . . [but that
if he were successful on appeal] then that sentence would be vacated, and
[the case] would be back in [the trial court] for purposes of potential trial
if the case could still go forward.’’ The defendant then told the court that
he understood.
Later in the proceeding, after making the specific finding that the motion
to suppress was dispositive of the case, the court explained: ‘‘I do know
that after his arrest there may be some connection through DNA that was
done afterward, but I still feel that if . . . he was in custody and the motion
[to suppress] should have been granted, they may very well not have gotten
to the DNA issue, not meaning that if it is reversed that the state could not
still attempt to prosecute him. But I am making the determination that the
ruling on that motion to suppress is dispositive of the case . . . .’’
During oral argument, we asked counsel to address this matter. The state
argued that if we agreed with the defendant that the motion to suppress
should have been granted, we should remand the case for further proceed-
ings, including the possibility of trial on the underlying crimes. The state
contended that this was the proper course of action because this was the
information conveyed to the defendant at the time the court accepted his
conditional plea, and there remains a possibility that other evidence could
be used to attempt to establish the defendant’s guilt. The state further argued
that the term ‘‘dispositive of the case’’ could be read to mean that, in light
of trial court’s denial of the motion to suppress, the defendant virtually had
no chance of prevailing at trial, and, therefore, as far as the defense was
concerned, the denial of this motion was dispositive.
The defendant’s counsel, however, argued that, if we agree with the defen-
dant that the motion to suppress should have been granted, the state should
not be permitted to continue to trial on the underlying crimes because the
court made a finding that the denial of the motion to suppress was dispositive
of the case. He contended that the term ‘‘dispositive of the case’’ meant that
this evidence was necessary to the state’s case, and it could not proceed
to trial without it.
We conclude that resolution of the issue of whether ‘‘dispositive of the
case’’ means that the defendant virtually had no chance of prevailing at trial,
as the state suggests, or that the evidence that is the subject of the motion
to suppress is so essential to the state’s case that the state could not proceed
without it, as the defendant suggests, is not necessary to the outcome of
this appeal. Therefore, we do not attempt to resolve it in this opinion, but
save the matter for another, more appropriate, case.
We come to this conclusion, first, because whether the denial of the
motion to suppress is dispositive of the case does not implicate the subject
matter jurisdiction of this court. See State v. Joseph, 161 Conn. App. 850,
857, 129 A.3d 183 (2015), cert. denied, 320 Conn. 923, 133 A.3d 878 (2016);
State v. McGinnis, 83 Conn. App. 700, 704 n.6, 851 A.2d 349 (2004). Indeed,
this court has jurisdiction over a criminal appeal from a final judgment.
Here, the sentence imposed on the defendant constitutes a final judgment.
So, the case is properly before this court.
Second, notwithstanding the trial court’s ruling on this issue, namely, that
the motion to suppress was dispositive of the case—but, if the defendant
were to succeed on appeal, he still might face trial on the basis of other
evidence—because we conclude that the motion to suppress properly was
granted, we need not determine the import, if any, of this alternative argu-
ment raised by the state. Thus, as our legislature has provided by virtue of
the clear language of § 54-94a, the issue to be decided on appeal from an
accepted conditional plea of nolo contendere, where the court has made a
finding that the denial of the motion to suppress was dispositive of the case,
‘‘shall be limited to whether it was proper for the court to have denied the
motion to suppress . . . .’’ (Emphasis added.) General Statutes § 54-94a.
Because that finding was made by the trial court, we limit our review in
accordance with the statute.
3
During the hearing on the motion to suppress, the defendant admitted
that he previously did some work for Carrasco on property that Carrasco
owned, which included the victim’s residence.
4
During the hearing on the motion to suppress, the defendant admitted
that, while he was standing outside the police vehicle talking with the
detectives, he told them that he had gone to Andale’s bar on the night of
April 13, 2013, and that he had met a woman there who invited him back
to her residence. He also admitted that he told the detectives that he then
went and parked his vehicle at a gas station and walked to the home of the
woman on [the victim’s] street. The questioning involving the encounter
was then moved to the inside of the police vehicle. The record also demon-
strates that the victim was not at Andale’s bar on the night of April 13, 2013.
5
During cross-examination at the hearing on the motion to suppress, the
defendant also admitted that his vehicle, a Chevy Cobalt, was not registered
or insured.
6
We also note that during the hearing on the motion to suppress, the
defendant admitted that he made inculpatory statements prior to getting
into the police vehicle. See footnote 4 of this opinion. It is unclear whether
the trial court credited that admission, however.
7
The defendant also argues that the court made a clearly erroneous factual
finding in its memorandum of decision when it stated that ‘‘[although] the
police did not notify [the defendant’s employer] of the defendant’s departure,
or ask the defendant about his need to do so, or need to retrieve personal
property, there is no evidence that the defendant made either request or
that, if requested, the police would have refused.’’ (Emphasis omitted.) He
argues that this finding is clearly erroneous because there was evidence in
the form of the defendant’s own testimony that he inquired about the need
to retrieve his personal belongings but that the detectives said it was not
necessary. We conclude that it reasonably is likely that the court meant
that there was no credible evidence, rather than no evidence.
Although the defendant, in fact, did testify that he asked to retrieve his
belongings and the detectives told him that it was not necessary, Stewart
testified that the defendant did not tell them that he had belongings that
he wanted to retrieve. It seems readily apparent that the court credited the
testimony of Stewart.
8
We note that the officers did not tell the defendant he was free to leave.
A finding of custody, however, does not turn solely on this determination.
See State v. Mangual, supra, 311 Conn. 204 and n.16 (although specifically
informing suspect that he is ‘‘free to leave’’ may be effective means of
demonstrating that suspect is not in custody, this specific statement is not
necessarily determinative of custody issue).