State v. Purcell

 STATE OF CONNECTICUT v. ROBERT
JOHN PURCELL
(AC 38206)
Alvord, Keller and Dennis, Js.
Syllabus
The defendant, who had been convicted of three counts risk of injury to a
child in connection with four separate incidents, appealed to this court,
claiming, inter alia, that the trial court abused its discretion when it
denied his motion for a mistrial after the mother of the minor victim
testified that the victim had been diagnosed with post-traumatic stress
disorder. The defendant also claimed that the court improperly denied
his motion to suppress certain statements that he had made to two
police officers during a custodial interrogation. After the officers advised
the defendant of his constitutional rights, he told them that he had
consulted with an attorney, who advised him not to talk to them about
anything that could be misconstrued as inappropriate or about other
matters pertaining to the victim’s allegations. The defendant expressed
to the officers misgivings about his attorney’s advice, but continued
talking with them and thereafter stated, inter alia, ‘‘See, if my lawyer
was here, I’d . . . we could talk. That’s, you know, that’s it,’’ and, ‘‘I’m
supposed to have my lawyer here. You know that.’’ On appeal, the
defendant claimed that the officers violated his federal and state consti-
tutional rights when they failed to cease questioning him because the
statements at issue constituted clear and unequivocal invocations of his
right to counsel. The defendant further claimed that even if the state-
ments were ambiguous or equivocal, the officers were required under
the article first, § 8, of the state constitution to cease questioning him
and to clarify his statements. The defendant also asserted that the harm-
fulness of the mother’s testimony about the victim’s diagnosis could not
be cured by the instruction that the court gave to the jury immediately
after the testimony because the diagnosis related to the victim’s credibil-
ity, which was crucial to the state’s case in light of the lack of physical
evidence that the defendant sexually assaulted the victim. Held:
1. This court found unavailing the defendant’s claim that the trial court
abused its discretion in denying his motion for a mistrial, which was
based on his assertion that the jury’s verdict was substantially swayed
by testimony from the victim’s mother that the victim had been diagnosed
with post-traumatic stress disorder and that the testimony about the
diagnosis constituted harmful error that could not be cured by the trial
court’s instruction to the jury immediately thereafter: the diagnosis of
post-traumatic stress disorder was mentioned only during the mother’s
testimony, the court instructed the jury that the diagnosis had nothing
to do with the evidence, and that the jury should ignore and not make
any decision on the basis of that testimony, and the defendant offered
no reason why that instruction was insufficient to break the link between
the diagnosis and the charges against the defendant, and to prevent the
jury from considering the isolated statement of the victim’s mother
during its deliberations; moreover, notwithstanding the defendant’s
assertion that the testimony constituted an improper endorsement of
both his guilt and the victim’s credibility, the jury’s requests during
deliberations to hear certain statements and to rehear portions of the
victim’s testimony suggested that although the question of the victim’s
credibility was a difficult one, the jury’s finding that the defendant was
not guilty of sexual assault with respect to any of the alleged incidents
and was not guilty of an additional count of risk of injury to a child as
charged indicated that the jury did not find all of the victim’s testimony
to be credible.
2. The trial court properly denied the defendant’s motion to suppress the
statements that he made to the police officers during their custodial
interrogation of him, as he did not clearly and unequivocally invoke
his right to counsel and, thus, the officers were not required to cease
questioning him:
a. Invocation of one’s right to counsel requires, at a minimum, some state-
ment that reasonably can be construed as an expression of a desire for
the assistance of counsel, and this court concluded that a reasonable
police officer under the circumstances here would not have understood
as a clear and unequivocal request for counsel the defendant’s state-
ments, ‘‘See, if my lawyer was here, I’d . . . we could talk. That’s, you
know, that’s it,’’ and, ‘‘I’m supposed to have my lawyer here. You know
that’’; although the defendant expressed to the officers misgivings about
his attorney’s advice, he continued talking with them, and the defendant’s
references to counsel might have been an attempt to persuade the
officers to limit the interview’s scope, a reiteration of his attorney’s
advice not to speak about the incidents at issue without counsel present,
a request for an attorney or an expression that it was prudent to have
an attorney present, rather than a request by the defendant that he
actually wanted to speak to an attorney before proceeding with the
interview.
b. Contrary to the defendant’s unpreserved claim that article first, § 8, of
the state constitution provided greater protection than does the federal
constitution by requiring that the police officers cease questioning him
to clarify any ambiguous or equivocal references to counsel that he made
during the custodial interrogation, a review of this state’s constitutional
language, precedents and history did not disclose any meaningful differ-
ence between the state and federal constitutional protections against
compulsory self-incrimination, courts in the majority of other states
have concluded that their state constitutions do not afford greater pro-
tections in this context than does the federal constitution, the reasoning
of other states’ courts that have found greater protections in their state
constitutions was unpersuasive, and the defendant’s policy arguments
were insufficient to justify any divergence from this state’s Supreme
Court precedent that the self-incrimination and due process clauses of
article first, § 8, are coextensive with their federal counterparts and,
therefore, this court declined to adopt a new state constitutional stan-
dard with respect to ambiguous or equivocal references to counsel.
Argued April 5—officially released July 4, 2017
(Appeal from Superior Court, judicial district of New
Haven, O’Keefe, J.)
Procedural History
Substitute information charging the defendant with
four counts of the crime of risk of injury to a child,
two counts of the crime of sexual assault in the second
degree and with the crime of sexual assault in the first
degree, brought to the Superior Court in the judicial
district of New Haven, where the court, O’Keefe, J.,
denied the defendant’s motion to suppress certain evi-
dence; thereafter, the matter was tried to the jury; sub-
sequently, the court denied the defendant’s motion for
a mistrial; verdict and judgment of guilty of three counts
of risk of injury to a child, from which the defendant
appealed to this court. Affirmed.
Richard Emanuel, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Seth R. Garbarsky, senior assistant state’s
attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Robert John Purcell,
appeals from the judgment of the trial court, rendered
after a jury trial, of conviction of one count of risk of
injury to a child in violation of General Statutes § 53-
21 (a) (1) and of two counts of risk of injury to a child
in violation of General Statutes § 53-21 (a) (2).1 The jury
found the defendant not guilty of one count of sexual
assault in the first degree in violation of General Stat-
utes § 53a-70 (a) (1), two counts of sexual assault in
the second degree in violation of General Statutes § 53a-
71 (a) (1), and one count of risk of injury to a child in
violation of § 53-21 (a) (2). On appeal, the defendant
raises various claims pertaining to testimony by the
victim’s mother2 that the victim had been diagnosed
with post-traumatic stress disorder (PTSD testimony)
and the trial court’s denial of his motion to suppress
statements that he made to the police during a custodial
interrogation. With respect to the PTSD testimony, the
defendant claims that allowing the victim’s mother to
testimony about his medical conditions constituted a
harmful evidentiary error, which was based on the
PTSD testimony. With respect to his motion to suppress,
the defendant claims that the interrogating detectives
violated Edwards v. Arizona, 451 U.S. 477, 101 S. Ct.
1880, 68 L. Ed. 2d 378 (1981), by continuing to question
him after he clearly and unambiguously invoked his
right to counsel. Alternatively, the defendant argues
that, even if his invocations were ambiguous or equivo-
cal, and therefore ineffective under Edwards, article
first, § 8, of the Connecticut constitution required the
interrogating detectives to clarify his statements before
questioning him further. We reject the defendant’s
claims and, accordingly, affirm the judgment of the
trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
In 2002, the victim’s parents adopted the victim, who
had several medical conditions, including autism.3 The
defendant is the victim’s uncle by marriage. The victim
and his family had only a casual relationship with the
defendant, whom they saw on average three to five
times a year for holidays and family events. The victim
initially viewed the defendant as ‘‘just an ordinary
uncle,’’ but, in 2010, when the victim was twelve and the
defendant was seventy, the defendant began engaging in
sexually inappropriate behavior with the victim.
Three incidents in particular served as the basis for
the defendant’s conviction. In August, 2010, the victim,
the defendant, and other family members went to lunch
at a restaurant. After lunch, the defendant and the victim
went to use the bathroom. While in the bathroom, the
defendant began rubbing his penis and asked the victim
to rub it. The victim refused, left the bathroom, and
returned to the table where his family was sitting. In
December, 2011, the victim and his father went to the
defendant’s house to visit his grandparents, who lived
with the defendant and his wife. While the defendant
and the victim’s father spoke to the victim’s grandfather
in the basement apartment, the victim went upstairs to
find the defendant’s cats. The victim found one of the
cats in the defendant’s bedroom and began playing with
it on the defendant’s bed. Sometime thereafter, the
defendant came into the bedroom and had contact with
the victim’s penis in a sexual and indecent manner.
Finally, in August, 2013, the defendant and other mem-
bers of the victim’s family went to the victim’s middle
school to watch him perform in a school play. After
the play, the defendant went to use the school bath-
room, and the victim followed him inside so that he
could remove his makeup. While in the bathroom, the
defendant had contact with the victim’s penis in a sexual
and indecent manner.
In September, 2013, the victim’s mother found pic-
tures on the victim’s Nintendo DS game console that
concerned her, including pictures of the clothed stom-
achs of the defendant and the victim’s father and two
pictures of circumcised penises.4 The victim’s mother
deleted the penis pictures. Later, she told the victim’s
father about the pictures she found and asked him to
talk to the victim about them. Two weeks later, on
Saturday, September 28, 2013, the victim’s father
engaged in a discussion with the victim about his sexual-
ity.5 The victim’s father asked if the victim liked girls
or boys, to which the victim replied that he liked girls.
The victim’s father explained that, in the eyes of the
Catholic Church, it is bad and a sin to like boys and
that sex should occur between a man and a woman.
The victim then acknowledged that he had started to
like and think about boys but maintained, ‘‘[i]t’s not my
fault.’’ The victim told his father that the defendant ‘‘has
been having sex with me.’’
The following Monday, September 30, 2013, after the
victim left for school, the victim’s parents went to the
police station to report his allegation. While at the police
station, the victim’s parents received a phone call from
the victim’s school social worker informing them that
the victim told him that his ‘‘Uncle Robert’’ was having
sex with him.
The defendant was subsequently arrested on the basis
of the victim’s allegations. The operative long form
information charged the defendant with seven offenses
in connection with four separate incidents. Relative to
the August, 2010 incident, the defendant was charged
with risk of injury to a child in violation of § 53-21
(a) (1). Relative to the December, 2011 incident, the
defendant was charged with sexual assault in the first
degree in violation of § 53a-70 (a) (1) and risk of injury
to a child in violation of § 53-21 (a) (2). Relative to
an incident that allegedly occurred in April, 2012, the
defendant was charged with sexual assault in the sec-
ond degree in violation of § 53a-71 (a) (1) and risk of
injury to a child in violation of § 53-21 (a) (2). Finally,
relative to the August, 2013 incident, the defendant was
charged with sexual assault in the second degree in
violation of § 53a-71 (a) (1) and risk of injury to a child
in violation of § 53-21 (a) (2).
After a trial, a jury found the defendant guilty of the
risk of injury counts with respect to the August, 2011,
the December, 2011, and the August, 2013 incidents.
The jury found the defendant not guilty of all counts
of sexual assault and not guilty of the risk of injury
count relative to the alleged incident in April, 2012. The
defendant was sentenced to a total effective term of
sixteen years of imprisonment, execution suspended
after nine years, and ten years of probation. This appeal
followed. Additional facts will be set forth as necessary.
I
We begin with the defendant’s claims pertaining to
the PTSD testimony. The defendant claims that the
PTSD testimony was hearsay and constituted a harmful
nonconstitutional evidentiary error, and, therefore, the
court abused its discretion by denying his motion for
a mistrial. In particular, the defendant argues that the
PTSD testimony ‘‘constituted an [improper] endorse-
ment or confirmation of [the victim’s] credibility—and
the defendant’s guilt,’’ and improperly embraced an ulti-
mate issue in the case, i.e., whether some or all of the
events the victim described actually happened, thereby
causing his PTSD. The defendant argues that the preju-
dicial nature of this evidence was beyond the curative
powers of the court because the PTSD diagnosis related
to the victim’s credibility, which was crucial to a suc-
cessful prosecution because the state’s case lacked
physical evidence of sexual assault and portions of the
victim’s testimony ‘‘were highly implausible.’’ The state
responds that the court’s ‘‘clear and forceful curative
instructions . . . expressly broke any link between the
PTSD diagnosis and the charges for which the defen-
dant was on trial . . . and expressly removed [the
PTSD] testimony . . . from evidence entirely.’’ As a
result, the state argues, the PTSD testimony did not
constitute a harmful evidentiary error and the court
did not abuse its discretion by denying the defendant’s
motion for a mistrial. We agree with the state.
The following additional facts are relevant to these
claims. The victim’s mother was the first witness as the
trial commenced. She began her testimony by providing
background on the victim and his medical conditions,
including his autism. During a colloquy with the prose-
cutor about other medical conditions that the victim
had been diagnosed with, defense counsel objected on
the ground of hearsay. The court overruled the objec-
tion but admonished the victim’s mother to limit her
testimony to her understanding of her son’s medical
conditions and not to testify about what someone else
told her. After further discussion about the victim’s
medical conditions, the following colloquy occurred:
‘‘[The Prosecutor]: I think we’re missing one or two
other conditions, if the—if the court pleases.
‘‘The Court: Okay. That’s the question then. What
other conditions?
‘‘[The Prosecutor]: Fair enough.
‘‘The Court: Yeah. Go ahead.
‘‘[The Victim’s Mother]: Okay. He also suffers from
post-traumatic stress disorder, which was a later diag-
nosis after why we’re here. I’m trying to think what
else was on there. I think that’s—
‘‘[The Prosecutor]: Well, let me ask you this.
‘‘[The Victim’s Mother]: Yeah. Okay.
‘‘[The Prosecutor]: Does he take any meds currently?
‘‘[The Victim’s Mother]: Yes, he does.
‘‘[The Prosecutor]: Okay. And what type of meds does
he take?
‘‘[The Victim’s Mother]: I’m sorry. He takes Concerta
for [attention deficit hyperactivity disorder]. He—
‘‘[The Prosecutor]: Is that one of the—
‘‘The Court: The jury can be excused for a minute.’’
(Emphasis added.)
Thereafter, the jury exited the courtroom, and the
court excused the victim’s mother from the witness
stand. The court then engaged in a lengthy discussion
with counsel about how to address the PTSD testimony.
The court observed: ‘‘PTSD is somebody else’s opinion
that—that a person has suffered a stressful event and
is reacting to it. So, it’s almost a comment on circum-
stantial evidence of the credibility of the [victim].’’
Defense counsel explained that he had never seen any
evidence that the victim had been diagnosed with PTSD
and opined: ‘‘I don’t know how we cure that at this
point.’’ Although the prosecutor acknowledged that he
was aware of the PTSD diagnosis prior to the PTSD
testimony, he maintained that he did not know that the
mother would testify about it.6 The prosecutor further
disputed the court’s suggestion that the PTSD testimony
constituted circumstantial evidence of the credibility
of the victim because it was his understanding that the
victim was prescribed medication for PTSD based on
his symptoms, not based on a discussion with someone
about a traumatic event. The court explained: ‘‘As soon
as I heard that, I interpreted it—that, as someone
treated the [victim]. She said it was related to this event.
They determined that it was a valid event and diagnosed
him with a reaction to this event. That’s my—my inter-
pretation of when a person says, he’s treated for PTSD
as a result of this event.’’
After discussing the import of the statement by the
victim’s mother with the prosecutor further, the court
asked defense counsel for his opinion. Defense counsel
stated: ‘‘Your Honor, again, I was not prepared for that.
I don’t think it can be cured. I move for a mistrial at
this point, Your Honor. I think it’s an—she says that
an expert has diagnosed him with this condition and it
relates to the reason that we’re here.’’ The court and
the parties continued to discuss how best to address
the PTSD testimony. After a brief recess, the court
issued the following ruling: ‘‘Well, I don’t think that
there’s enough for a mistrial at this point. I’ll give
defense counsel the option. I’ll give the strongest
instruction possible on this issue of PTSD, and point
out to [the jury], as the prosecutor has said, that there’s
really nothing in the record which would indicate that
the—whatever that’s about is related to this event. Now,
PTSD may—may come up later in the trial, but every-
thing is context. At this point, it’s—you know, link it—
I would think that the jury would link that to this event,
and it’s somebody else’s opinion about— really, about
the credibility of the complainant, or I’ll ignore it, if
that’s what you want.’’ Defense counsel stated, ‘‘I feel
like I’m in a catch-22,’’ because he did not want to
highlight the testimony, but he decided that it would be
‘‘prudent that a curative instruction be administered.’’
When the jury returned to the courtroom, the court
gave the following instruction: ‘‘The witness will be
back in a minute, but before she comes back, let me
talk about—she said that there was—the PTSD—there
was a PTSD diagnosis. That has nothing to do with the
evidence in this—in this case. There’s nothing in the
record that links the PTSD to this case. Ignore it. Don’t
make any decision in this case, none, based on what
she said about PTSD. Just completely and totally
ignore it, like it isn’t even part of the record, like it
isn’t even part of the evidence. Okay. All right. She can
come back.’’ (Emphasis added.)
We begin our analysis by setting forth the legal princi-
ples that govern the defendant’s claims. ‘‘When an
improper evidentiary ruling is not constitutional in
nature, the defendant bears the burden of demonstra-
ting that the error was harmful. . . . [A] nonconstitu-
tional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict. . . . [O]ur determination [of whether] the
defendant was harmed by the trial court’s . . . [eviden-
tiary ruling] is guided by the various factors that we have
articulated as relevant [to] the inquiry of evidentiary
harmlessness . . . such as [1] the importance of the
. . . testimony in the [state’s] case, [2] whether the
testimony was cumulative, [3] the presence or absence
of evidence corroborating or contradicting the testi-
mony . . . on material points, [4] the extent of cross-
examination otherwise permitted, and, of course, [5]
the overall strength of the [state’s] case. . . . Most
importantly, we must examine the impact of the evi-
dence on the trier of fact and the result of the trial.’’
(Internal quotation marks omitted.) State v. Rodriguez,
311 Conn. 80, 89, 83 A.3d 595 (2014); see also State v.
Bouknight, 323 Conn. 620, 626, 149 A.3d 975 (2016)
(‘‘[t]he proper standard for determining whether an
erroneous evidentiary ruling is harmless should be
whether the jury’s verdict was substantially swayed by
the error’’ [internal quotation marks omitted]).
‘‘In our review of the denial of a motion for mistrial,
we have recognized the broad discretion that is vested
in the trial court to decide whether an occurrence at
trial has so prejudiced a party that he or she can no
longer receive a fair trial. The decision of the trial court
is therefore reversible on appeal only if there has been
an abuse of discretion.’’ (Internal quotation marks omit-
ted.) State v. Berrios, 320 Conn. 265, 274, 129 A.3d 696
(2016). On appeal, we are cognizant of the fact that
‘‘[t]he trial court is better positioned than we are to
evaluate in the first instance whether a certain occur-
rence is prejudicial to the defendant and, if so, what
remedy is necessary to cure that prejudice. . . . In gen-
eral, abuse of discretion exists when a court could have
chosen different alternatives but has decided the matter
so arbitrarily as to vitiate logic, or has decided it based
on improper or irrelevant factors. . . . Therefore, [i]n
those cases in which an abuse of discretion is manifest
or where injustice appears to have been done, reversal
is required.’’ (Citation omitted; internal quotation marks
omitted.) State v. O’Brien-Veader, 318 Conn. 514, 555,
122 A.3d 555 (2015).
‘‘While the remedy of a mistrial is permitted under
the rules of practice, it is not favored. . . . If curative
action can obviate the prejudice, the drastic remedy of
a mistrial should be avoided.’’ (Internal quotation marks
omitted.) Id., 554–55. ‘‘[I]n the absence of evidence that
the jury disregarded any of the court’s instructions, we
presume that the jury followed the instructions.’’ State
v. A. M., 324 Conn. 190, 215, 152 A.3d 49 (2016). Mere
conjecture by the defendant is insufficient to rebut this
presumption. State v. Gaffney, 209 Conn. 416, 422, 551
A.2d 414 (1988); State v. Reddick, 33 Conn. App. 311,
336 n.13, 635 A.2d 848 (1993), cert. denied, 228 Conn.
924, 638 A.2d 38 (1994). ‘‘The burden is on the defendant
to establish that, in the context of the proceedings as
a whole, the challenged testimony was so prejudicial,
notwithstanding the court’s curative instructions, that
the jury reasonably cannot be presumed to have disre-
garded it.’’ State v. Nash, 278 Conn. 620, 659–60, 899
A.2d 1 (2006).
Having scrupulously reviewed the record in this case,
we are not persuaded that the jury’s verdict was sub-
stantially swayed by the PTSD testimony or that the
court abused its discretion by denying the defendant’s
motion for a mistrial. The only time the victim’s PTSD
diagnosis was mentioned was during the testimony of
the victim’s mother. After that testimony, the court
instructed the jury that the victim’s PTSD diagnosis
‘‘has nothing to do with the evidence . . . in this case’’
and that ‘‘[t]here’s nothing in the record that links the
PTSD to this case.’’ In addition, the court admonished
the jury that it was not to ‘‘make any decision in this
case, none, based on what [the victim’s mother] said
about PTSD’’ and that they were to ‘‘completely and
totally ignore it, like it isn’t even part of the record, like
it isn’t even part of the evidence.’’ The defendant has
offered no persuasive reason why this prompt, clear,
and forceful instruction by the court was insufficient
to break the link between the PTSD diagnosis and the
charges for which the defendant was on trial and to
prevent the jurors from considering this isolated state-
ment by the victim’s mother during their deliberations.
We recognize that the state’s case was not particularly
strong, given the lack of physical or eyewitness evi-
dence, and that, as a result, the victim’s testimony was
crucial to a successful prosecution. See State v. Magu-
ire, 310 Conn. 535, 561, 78 A.3d 828 (2013) (sexual
assault case not strong where ‘‘there was no physical
evidence of abuse, and there was no eyewitness testi-
mony other than that of the victim, whose testimony
at times was both equivocal and vague’’); State v. Ritro-
vato, 280 Conn. 36, 57, 905 A.2d 1079 (2006) (‘‘[a]lthough
the absence of conclusive physical evidence of sexual
abuse does not automatically render the state’s case
weak where the case involves a credibility contest
between the victim and the defendant . . . a sexual
assault case lacking physical evidence is not particu-
larly strong, especially when the victim is a minor’’
[citation omitted]). During its deliberations, the jury
sent notes to the court requesting to hear the victim’s
police interview, which was not in evidence, and to
rehear portions of the victim’s testimony, which sug-
gested that the question of the victim’s credibility was
a difficult one. See State v. Devalda, 306 Conn. 494,
510, 50 A.3d 882 (2012) (‘‘[w]e have recognized that a
request by a jury may be a significant indicator of their
concern about evidence and issues important to their
resolution of the case’’ [internal quotation marks omit-
ted]). In addition, the jury’s finding that the defendant
was not guilty of sexual assault with respect to any of
the alleged incidents and not guilty of one of the counts
of risk of injury indicates that the jury did not in fact
find all aspects of the victim’s testimony to be credible.
See State v. Samuel M., 159 Conn. App. 242, 255, 123
A.3d 44 (2015) (jury’s finding of guilty of three counts
of sexual assault in the first degree and one count of
risk of injury and finding of not guilty of nine other
counts of sexual assault in the first degree ‘‘demon-
strates that [the jury] did reject a vast portion of [the
victim’s] testimony’’), aff’d, 323 Conn. 785, 151 A.3d
815 (2016).
Nevertheless, a jury may properly decide ‘‘what—all,
none, or some—of a witness’ testimony to accept or
reject.’’ (Internal quotation marks omitted.) State v. Vic-
tor C., 145 Conn. App. 54, 61, 75 A.3d 48, cert. denied,
310 Conn. 933, 78 A.3d 859 (2013). The defendant has
not persuaded us that the jury failed to heed the court’s
curative instruction and that its deliberations, therefore,
were improperly influenced by the PTSD testimony.
II
We next address the defendant’s claim that his rights
under the fifth and fourteenth amendments to the
United States constitution and article first, § 8, of the
Connecticut constitution were violated when the court
denied his motion to suppress statements that he made
to the police during a custodial interrogation. The defen-
dant argues that his statements (1) ‘‘See, if my lawyer
was here, I’d, then I’d, we could talk. That’s, you know,
that’s it,’’ and, (2) ‘‘I’m supposed to have my lawyer
here. You know that,’’ constituted clear and unequivocal
invocations of his right to counsel, requiring the detec-
tives to cease all questioning until counsel was present.
Alternatively, the defendant argues that even if the dis-
puted statements were ambiguous or equivocal, article
first, § 8, required the detectives to cease questioning
immediately and to clarify his statements.7 We disagree
with both contentions.
The following additional facts are relevant to this
claim. On October 17, 2013, Detective Michael Zerella
and Sergeant John Ventura interviewed the defendant
concerning the victim’s allegations (first interview). The
defendant agreed to come to the police station to dis-
cuss a complaint made against him, but he was not
made aware of the nature of the allegations prior to
arriving. When it became apparent that he was being
accused of engaging in sexually inappropriate conduct
with the victim, the defendant explained two instances
that he could think of that served as the basis for the
victim’s complaint, but he maintained that nothing inap-
propriate happened. Approximately twenty minutes
into the interview, Zerella wondered aloud whether,
based on what he knew happened, ‘‘(a) you’re a sick,
perverted person or, or stuff, stuff accidentally hap-
pened.’’ The following exchange occurred:
‘‘[The Defendant]: Let’s, let’s, let’s stop this here.
‘‘[Zerella]: Or stuff, stuff happened.
‘‘[The Defendant]: It sounds, sounds, sounds, like I
need a lawyer, right?
‘‘[Ventura]: It’s up to you.
‘‘[The Defendant]: I know it.
‘‘[Ventura]: Why would you say that, though? That
you need a lawyer?
‘‘[The Defendant]: Well, it sound, sounds like, well,
you, uh. . .
‘‘[Ventura]: You could get up and leave any time
you want.
‘‘[The Defendant]: That I could be, possibly be, a sick,
perverted person.
‘‘[Zerella]: You didn’t, you didn’t let me, you didn’t
let me finish what I was gonna say.
‘‘[The Defendant]: But it sounds, sounds like you said
it, I’m a, sounds like I might, might be a sick, per-
verted person.
‘‘[Zerella]: Or something innocently happened that,
that, that didn’t, that didn’t mean to happen. That’s all.
I, we need to know that. That’s why I need to know
from you the truth. That’s, that’s what I’m trying to get
at here.’’
The interview continued. Approximately thirty
minutes into the interview, however, when Zerella and
Ventura began to press the defendant about why the
victim would make up these allegations and give ‘‘spe-
cific incidents that Uncle Bobby and me had sex
together,’’ the defendant ended the interview because
‘‘[t]hings are getting strange now. . . . It’s a little bit
too strange.’’ The defendant was permitted to leave the
police station.
On November 26, 2013, the defendant was arrested
and charged with sexual assault in the first degree and
risk of injury to a child. That same day, Zerella and
Detective Sean Fairbrother interviewed the defendant
(second interview). Zerella began the interview by read-
ing the defendant his Miranda8 rights and asking him
to complete a Miranda waiver form. The defendant
asked: ‘‘I can still, after, after, after I initial that, I can
still stop answering then?’’ Zerella replied: ‘‘Oh, anytime
you want. No problem.’’
After the defendant completed the Miranda waiver
form, Zerella asked the defendant whether he knew
why he had been arrested. The defendant explained
that he had received a letter from the Department of
Children and Families (department) informing him that
he was being investigated for allegations of child abuse
with respect to the victim. When Zerella asked what he
discussed with the department, the defendant stated
that he had never talked to anyone from the department.
Zerella asked why, and the defendant explained: ‘‘Well,
I asked my lawyer, and he said, well, just not to, I, I
think that’s, I think that’s all together wrong, but that’s
what he said.’’ He went on to elaborate that ‘‘my lawyer
knows what’s going on, you know? But, he says don’t
talk, I don’t talk.’’ When Zerella asked him how he felt
about that, the defendant stated: ‘‘Well, it’s like I said,
I probably wouldn’t be here now if I talked to them.’’
Zerella suggested that if he had elaborated more and
been more forthcoming during the first interview, they
might not be here. After some discussion about whether
and why Zerella called him a pervert during the first
interview, Zerella stated: ‘‘Okay, well, we could, we
could go on about the last interview if you want to,
but—’’ The defendant interjected: ‘‘—I know, I know
. . . let’s . . . let’s go on right, what, what more do
you want to know?’’
After remarking that the defendant knew he was
under arrest and that a judge and prosecutor had found
probable cause to arrest him, the defendant observed
that it was because ‘‘I didn’t talk, that’s why.’’ Zerella
remarked: ‘‘Well, you did, you did talk to me. You did
tell me a few things.’’ The defendant agreed but
acknowledged, ‘‘not enough, I know.’’ The defendant
then expressed his belief that the victim’s parents were
acting wrongly by pressing charges against him and
his concern that nobody would believe him over the
victim’s parents because they are both retired members
of the police department. Zerella explained that it was
the victim, not his parents, who was pressing charges
and that he had already corroborated many of the vic-
tim’s allegations. When Zerella asked the defendant to
tell him some of the stories of his encounters with the
victim, the defendant opined: ‘‘I don’t know the stories
that he made up.’’
Fairbrother asked the defendant whether he knew
the crime with which he was charged, and the defendant
replied child abuse. Fairbrother explained that he was
charged with sexual assault and risk of injury to a child.
The defendant asked whether that means that the alle-
gation is that he did something sexual with the victim,
and Fairbrother said that it did. The defendant ada-
mantly denied having sexual relations with the victim.
When the detectives pressed him about whether there
were any moments that could be misconstrued as inap-
propriate, the defendant responded: ‘‘Well, yes, there’s
what, well, I, I, my lawyer said not to talk about it but,
no, it’s.’’ The detectives both stated that it was up to
the defendant whether to talk with them.
The defendant observed that Zerella had told him
that there was a picture of him naked on the victim’s
Nintendo DS during the first interview, and he asked
repeatedly whether the picture actually existed.9 When
Zerella suggested that the defendant had personal
knowledge that the picture existed, the defendant
insisted that he did not and that he knew about the
picture only because Zerella told him about it during the
first interview. Zerella maintained that ‘‘there’s other,
other things, there’s other instances beside that,’’ and,
after the defendant asked what, Zerella observed that
‘‘you just said, there [is] stuff but my lawyer told me
not to talk about it.’’ The defendant stated that he was
referring to the picture. He further asked, ‘‘what else
is there,’’ and opined that he wanted to know ‘‘what
they are pressing against me.’’ Thereafter, the following
exchange occurred:
‘‘[Zerella]: Alls I got to say is, tomorrow, when you
go in to court, you’re gonna look at a judge and a
prosecutor. . . . And they’re gonna look at all this
stuff, all these allegations that were made against you.
. . . That it’s a, it’s a very, very strong case against you.
Very, very strong. They’re gonna look at it and say,
listen, this, this man, because they don’t know you from
Adam, but they’re just gonna see you.
‘‘[The Defendant]: Right. Well, they’re gonna know
my name.
‘‘[Zerella]: As, as a, as a, as a mean, as a mean indi-
vidual.
‘‘[The Defendant]: Right.
‘‘[Zerella]: In, in reality—
‘‘[Fairbrother]: As a predator.
‘‘[Zerella]: As a predator, who, who’s technically not
cooperating and not saying, yeah, this is, this is what
happened, this is probably why he thinks, thinks the
way he does or—
‘‘[The Defendant]: —See, if my lawyer was here, I’d,
then I’d, we could talk. That’s, you know, that’s it.
‘‘[Zerella]: It’s up to you. You could—
‘‘[The Defendant]: —I know it. I know, I know, I
know it.
‘‘[Zerella]: You could (a), you could (a) talk to me or
you could (b) not talk to me.
‘‘[The Defendant]: I know it but, I’m trying, you know
I, I’m supposed to have my lawyer here. You know that.
‘‘[Zerella]: You don’t, you don’t have to, it’s, it’s—
‘‘[Fairbrother]: It’s up to you.
‘‘[Zerella]: It’s up to you, man. Some people talk to
me without one, some people want one it . . . it’s all
up to you, man. . . I’m just affording you that opportu-
nity, that’s all.
‘‘[Fairbrother]: The problem is that, at your age, you
don’t want to go to prison.
‘‘[The Defendant]: [indiscernible]
‘‘[Fairbrother]: Okay? You don’t want to go to prison.
If there was some inappropriate things with this child,
something that can be explained, maybe you helped
him go to the bathroom, maybe, you know, he makes
some sort of crazy allegation or does some sort of
craziness, he’s not—
‘‘[Zerella]: —Maybe he—
‘‘[Fairbrother]: He doesn’t have a hundred percent
capacity. If you’re in a, now, now is the time to talk
about it, now is to get your half out there.
‘‘[Zerella]: Yeah, maybe he came at you.
‘‘[Fairbrother]: —You know if—
‘‘[Zerella]: Maybe he came at you.
‘‘[Fairbrother]: You know, that, that’s all we’re offer-
ing you, the opportunity to, because it’s the last time
we’re gonna be able to talk.
‘‘[Zerella]: That’s all.
‘‘[Fairbrother]: You know, that’s all, and, and, you
know, if—
‘‘[The Defendant]: —Oh, geez, I don’t know—
‘‘[Fairbrother]: —If you want to have an attorney—
‘‘[The Defendant]: —I, I don’t think it’s—
‘‘[Fairbrother]: —That’s fine. You can, but—
‘‘[The Defendant]: —that’s right, right or wrong, but,
uh, real, really.
‘‘[Zerella]: Just, just affording you the opportunity,
sir, because after, after today, you’re never gonna be
able to, to give me or any other cop your story. You’re
gonna let, a judge is gonna look at ya and say, some
serious charges against you. You could go to jail for
the rest of your life.
‘‘[The Defendant]: All right, now what’s, what, what,
what, uh, all right, I’ll, I’ll, I’ll talk. Uh, what do you,
what do you, what do you want to know? Tell, tell me,
what do you want to know.’’ (Emphasis added.)
Thereafter, the interview continued without further
mention of counsel.
On June 4, 2014, the defendant filed a generic motion
to suppress any oral or written statements that he gave
to the police pursuant to the fifth, sixth, and fourteenth
amendments to the United States constitution and arti-
cle first, § 8, of the Connecticut constitution. On April
28, 2015, the defendant filed a second motion to sup-
press the statements that he made during the second
interview, pursuant to the fifth and fourteenth amend-
ments and article first, § 8, on the grounds that his
statement ‘‘was taken against his rights to counsel, to
remain silent, and self-incrimination.’’10 The court was
provided with a video recording and transcript of the
second interview. A suppression hearing was held dur-
ing trial on April 29, 2015, during which the court heard
the brief testimony of Zerella and argument from coun-
sel. At the end of the hearing, the court issued an oral
ruling denying the defendant’s motion to suppress.11
A
We begin by setting forth the legal principles that
guide our analysis of the defendant’s claim that the
detectives violated Edwards by continuing to question
him after he clearly and unequivocally invoked his right
to counsel during the second interview.12 In Miranda
v. Arizona, 384 U.S. 436, 469–73, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), the United States Supreme Court
held that ‘‘a suspect subject to custodial interrogation
has the right to consult with an attorney and to have
counsel present during questioning, and that the police
must explain this right to him before questioning begins.
. . . If the suspect effectively waives his right to coun-
sel after receiving the Miranda warnings, law enforce-
ment officers are free to question him.’’ (Citations
omitted.) Davis v. United States, 512 U.S. 452, 457–58,
114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994).
In Edwards v. Arizona, supra, 451 U.S. 484–85, how-
ever, the United States Supreme Court determined that
the ‘‘traditional standard for waiver was not sufficient
to protect a suspect’s right to have counsel present at a
subsequent interrogation if he had previously requested
counsel . . . .’’ Maryland v. Shatzer, 559 U.S. 98, 104,
130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010). The court
therefore superimposed a ‘‘ ‘second layer of prophy-
laxis’ ’’ to prevent the police from badgering a defendant
into waiving his previously asserted Miranda rights.
Id.; Davis v. United States, supra, 512 U.S. 458. Under
the Edwards rule, if a suspect requests counsel at any
time during the interview, he cannot be subjected to
further questioning until an attorney has been made
available, unless the suspect himself reinitiates conver-
sation or a fourteen day break in custody has occurred.
See Maryland v. Shatzer, supra, 110; Edwards v. Ari-
zona, supra, 484–85.
‘‘The applicability of the rigid prophylactic rule of
Edwards requires courts to determine whether the
accused actually invoked his right to counsel. . . . To
avoid difficulties of proof and to provide guidance to
officers conducting interrogations, this is an objective
inquiry. . . . Invocation of the Miranda right to coun-
sel requires, at a minimum, some statement that can
reasonably be construed to be an expression of a desire
for the assistance of an attorney. . . . But if a suspect
makes a reference to an attorney that is ambiguous or
equivocal in that a reasonable officer in light of the
circumstances would have understood only that the
suspect might be invoking the right to counsel, our
precedents do not require the cessation of ques-
tioning. . . .
‘‘Rather, the suspect must unambiguously request
counsel. As we have observed, a statement either is
such an assertion of the right to counsel or it is not.
. . . Although a suspect need not speak with the dis-
crimination of an Oxford don . . . he must articulate
his desire to have counsel present sufficiently clearly
that a reasonable police officer in the circumstances
would understand the statement to be a request for an
attorney. If the statement fails to meet the requisite
level of clarity, Edwards does not require that the offi-
cers stop questioning the suspect.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Davis v. United States, supra, 512 U.S. 458–59.
In the present case, we conclude that a reasonable
police officer in this circumstance would not have
understood the disputed statements—’’See, if my law-
yer was here, I’d, then I’d, we could talk. That’s, you
know, that’s it,’’ and, ‘‘I’m supposed to have my lawyer
here. You know that’’—to be requests for an attorney.
At the outset of the interview, the defendant was
informed of his Miranda rights and waived them in
writing. Shortly thereafter, the defendant told the detec-
tives that he had consulted an attorney after he received
a notice from the department concerning its investiga-
tion into the victim’s allegations and that the attorney
advised him ‘‘not to talk about it.’’ The defendant repeat-
edly expressed his misgivings with that advice and his
belief that he would not have been arrested had he
spoken with the department concerning the victim’s
allegations. Moreover, after referencing his attorney’s
advice ‘‘not to talk about it,’’ the defendant continued
to talk to the detectives about the victim’s allegations.
Indeed, on one occasion, he opined that his attorney
did not want him to talk about any moments that could
be misconstrued as inappropriate, e.g., the picture pur-
portedly on the victim’s Nintendo DS, and then he pro-
ceeded to ask about the picture Zerella mentioned
during the first interview. Finally, in the moments lead-
ing up to the disputed statements, it was evident that
the defendant wanted both to avoid discussing his side
of the story and to obtain more information about the
victim’s allegations and the evidence against him.
In light of these preceding circumstances, the defen-
dant’s first reference to counsel—’’See, if my lawyer
was here, I’d, then I’d, we could talk. That’s, you know,
that’s it’’—’’lacked the clear implication of a present
desire to consult with counsel . . . .’’ Lord v. Duck-
worth, 29 F.3d 1216, 1221 (7th Cir. 1994). This statement
might well have been an attempt to persuade the detec-
tives to limit the scope of the interview to the victim’s
allegations and the detectives’ evidence, a reiteration
of his attorney’s advice that he should not discuss his
side of the story without counsel present, a request for
an attorney, or something else entirely. Because of this
ambiguity in the statement, it cannot be considered
an effective invocation of the right to counsel under
Edwards. The defendant argues that his next reference
to counsel—’’I’m supposed to have my lawyer here. You
know that’’—clarified any ambiguity. We disagree. This
statement could also mean that the defendant simply
believed that it was prudent for him to have an attorney
present when speaking to authorities, not that he actu-
ally wanted to speak to an attorney before proceeding
further with the interview.
Accordingly, we conclude that the court properly
denied the defendant’s motion to suppress because he
did not clearly and unequivocally invoke his right to
counsel and, therefore, the detectives were not required
to cease questioning him.
B
Alternatively, the defendant argues that even if his
invocation of the right to counsel was ambiguous or
equivocal, the self-incrimination and due process
clauses of article first, § 8, of our state constitution
required the detectives to cease questioning immedi-
ately and to clarify his ambiguous references to counsel.
The defendant seeks review of this unpreserved state
constitutional claim pursuant to State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by
In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188
(2015).13 Although we conclude that the defendant’s
claim is reviewable pursuant to the first and second
prongs of Golding, the defendant is not entitled to rever-
sal under the third prong of Golding because our state
constitution does not provide greater protection than
the federal constitution in this context. As a matter of
state constitutional law, interrogating officers are not
required to clarify ambiguous or equivocal references
to an attorney. This conclusion does not diminish, how-
ever, our admonition to law enforcement that it is the
better practice to clarify such issues at the time of
interrogation rather than in after-the-fact arguments
before the courts.
‘‘It is well established that federal constitutional and
statutory law establishes a minimum national standard
for the exercise of individual rights and does not inhibit
state governments from affording higher levels of pro-
tection for such rights.’’ (Internal quotation marks omit-
ted.) State v. Saturno, 322 Conn. 80, 102, 139 A.3d 629
(2016). In determining the contours of the protections
provided by our state constitution, we employ a
multifactor approach that our Supreme Court first
adopted in State v. Geisler, 222 Conn. 672, 684–86, 610
A.2d 1225 (1992). The factors that we consider are (1)
the text of the relevant constitutional provisions; (2)
persuasive federal precedents; (3) related Connecticut
precedents; (4) persuasive precedents of other state
courts; (5) historical insights into the intent of the con-
stitutional framers; and (6) relevant public policies.
State v. Santiago, 318 Conn. 1, 17–18, 122 A.3d 1 (2015).
We address each factor in turn.
1
The first factor, the text of the relevant constitutional
provisions, favors the state. Although the wording of
the state and federal self-incrimination clauses is differ-
ent,14 our Supreme Court has repeatedly ‘‘declined to
construe this provision more broadly than the right
provided in the fifth amendment to the United States
constitution.’’ State v. Lockhart, supra, 298 Conn. 552;
State v. Castonguay, 218 Conn. 486, 495–96, 590 A.2d
901 (1991); State v. Asherman, 193 Conn. 695, 711–15,
478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.
Ct. 1749, 84 L. Ed. 2d 814 (1985). ‘‘The due process
clauses of the state and federal constitutions are virtu-
ally identical.’’15 State v. Ledbetter, 275 Conn. 534, 562,
881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S.
Ct. 1798, 164 L. Ed. 2d 537 (2006). As a result, our
Supreme Court has previously recognized that the simi-
larity between the two provisions ‘‘support[s] a com-
mon source and, thus, a common interpretation of the
provisions.’’ (Footnote omitted.) Id.; see also State v.
Wade, 297 Conn. 262, 288, 998 A.2d 1114 (2010).
2
The second Geisler factor, persuasive federal prece-
dents, favors the state as well. In Davis v. United States,
supra, 512 U.S. 459, the United States Supreme Court
‘‘decline[d] [the] petitioner’s invitation to extend
Edwards and require law enforcement officers to cease
questioning immediately upon the making of an ambigu-
ous or equivocal reference to an attorney.’’ Instead,
the Davis court adopted a bright-line approach: ‘‘If the
suspect’s statement is not an unambiguous or unequivo-
cal request for counsel, the officers have no obligation
to stop questioning him.’’ Id., 461–62.
Moreover, the United States Supreme Court has ‘‘fre-
quently emphasized that the Edwards rule is not a con-
stitutional mandate, but judicially prescribed
prophylaxis. . . . Because Edwards is our rule, not a
constitutional command, it is our obligation to justify
its expansion. . . . A judicially crafted rule is justified
only by reference to its prophylactic purpose . . . and
applies only where its benefits outweigh its costs
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Maryland v. Shatzer, supra, 559 U.S. 105–106;
id., 108–109 (declining to extend Edwards to prevent
officers from approaching suspects who have invoked
their right to counsel after there has been break in
custody because of diminished benefits and increased
costs, namely, ‘‘voluntary confessions it excludes from
trial, and the voluntary confessions it deters law
enforcement officers from even trying to obtain’’).
3
The third Geisler factor, related Connecticut prece-
dents, favors the state. The defendant is correct that
this state has a long history of commitment to the princi-
ples of Miranda, as evidenced by the fact that our
Supreme Court recognized the constitutional signifi-
cance of Miranda long before the United States
Supreme Court. Compare State v. Ferrell, 191 Conn. 37,
40–41, 463 A.2d 573 (1983) (‘‘[a]lthough the Miranda
warnings were originally effective in state prosecutions
only because they were a component of due process
of law under the fourteenth amendment . . . they have
also come to have independent significance under our
state constitution’’ [citations omitted]), with Dickerson
v. United States, 530 U.S. 428, 432, 444, 120 S. Ct. 2326,
147 L. Ed. 2d 405 (2000) (holding Miranda is a constitu-
tional rule). Nevertheless, our Supreme Court has con-
sistently held that our self-incrimination and due
process clauses do not afford greater protection than
the federal due process and self-incrimination clauses.
See part III B 1 of this opinion. As a result, our courts
have previously declined to utilize our state constitution
to afford suspects greater protections during custodial
interrogations than the federal constitution affords.
E.g., State v. Lockhart, supra, 298 Conn. 543–44 (declin-
ing to require all custodial interrogations to be
recorded); State v. Lawrence, 282 Conn. 141, 158–59,
920 A.2d 236 (2007) (declining to require higher stan-
dard of proof to establish voluntariness of confession);
State v. Piorkowski, 243 Conn. 205, 221, 700 A.2d 1146
(1997) (declining to require presence of counsel for
valid waiver of right to counsel when defendant initiates
contact with police and has been properly advised of
his Miranda rights); State v. Doyle, 104 Conn. App. 4,
15–16 n.4, 931 A.2d 393 (declining to extend warnings
required by Miranda to noncustodial police inter-
views), cert. denied, 284 Conn. 935, 935 A.2d 152 (2007).
Indeed, our Supreme Court has declined to deviate from
federal precedent specifically in the context of a defen-
dant’s invocation of the right to counsel under Miranda.
E.g., State v. Barrett, 205 Conn. 437, 447, 448, 534 A.2d
219 (1987) (state constitution, like federal constitution,
permits a distinction between suspect’s willingness to
make uncounseled oral statements and his disinclina-
tion to make uncounseled written statements); State v.
Hafford, 252 Conn. 274, 293–94, 746 A.2d 150 (declining
to hold that, as a matter of state constitutional law,
when officers have honored an equivocal request for
counsel by not asking suspect any further questions
and suspect subsequently initiates contact with police,
they cannot resume interrogation without first clarify-
ing earlier equivocal request for counsel), cert. denied,
531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000).
Nonetheless, the defendant argues that the rule he
proposes finds support in other aspects of our Supreme
Court’s jurisprudence. The precedent relied on by the
defendant, however, is unpersuasive. First, the defen-
dant relies on State v. Ferrell, supra, 191 Conn. 37, to
support his contention that article first, § 8, affords
greater protection than the federal constitution in the
context of the right to counsel under Miranda. In Fer-
rell, our Supreme Court held that police officers may
not testify regarding statements they overheard while
the defendant, who was in custody, was speaking with
his attorney; id., 41–42; reasoning that ‘‘the right to
consult a lawyer before being interrogated is meaning-
less if the accused cannot privately and freely discuss
the case with that attorney.’’ Id., 45. The court’s holding,
however, was based on the due process clauses of both
the state and federal constitutions, which it treated as
being coextensive with one another. Id., 41, 45; see also
State v. Lockhart, supra, 298 Conn. 554 (Ferrell does not
‘‘[indicate] that our state constitution imposes greater
protections with regard to the advisement of Miranda
rights or requires additional corroboration for admis-
sion of testimony describing such an advisement’’).
The defendant also relies on State v. Stoddard, 206
Conn. 157, 161, 537 A.2d 446 (1988). In that case, our
Supreme Court concluded that our state constitution,
unlike the federal constitution, imposes a duty on offi-
cers who are holding a suspect for custodial interroga-
tion to act reasonably, diligently, and promptly to
apprise the suspect of efforts by counsel to provide
pertinent and timely legal assistance. Id., 163; cf. Moran
v. Burbine, 475 U.S. 412, 422–23, 106 S. Ct. 1135, 89 L.
Ed. 2d 410 (1986) (declining to impose such a duty).
The court further held that a waiver of Miranda rights
may, depending upon the totality of the circumstances,
be vitiated by the failure of the police to fulfill this duty.
State v. Stoddard, supra, 163. The court reasoned that
the fact that ‘‘a suspect validly waives the presence
of counsel only means for the moment the suspect is
foregoing the exercise of that conceptual privilege. . . .
Faced with a concrete offer of assistance, however, a
suspect may well decide to reclaim his or her continuing
right to legal assistance. To pass up an abstract offer
to call some unknown lawyer is very different from
refusing to talk with an identified attorney actually
available to provide at least initial assistance and
advice, whatever might be arranged in the long run. A
suspect indifferent to the first offer may well react quite
differently to the second. . . . We cannot therefore
conclude that a decision to forego the abstract offer
contained in Miranda embodies an implied rejection of
a specific opportunity to confer with a known lawyer.’’
(Citations omitted; internal quotation marks omitted.)
Id., 168.
Importantly, the conclusion in Stoddard was influ-
enced by Connecticut’s ‘‘long history of recognizing the
significance of the right to counsel . . . .’’ Id., 164; see
also id., 164–66. The court acknowledged that ‘‘this his-
tory specifically illuminates the right to counsel that
attaches after the initiation of adversary judicial pro-
ceedings,’’ but it concluded that this history also
informed the due process concerns raised by police
interference with counsel’s access to a custodial sus-
pect. Id., 166. In particular, the court reasoned that
because the police are responsible for the suspect’s
isolation during a custodial interrogation, they ‘‘may
not preclude the suspect from exercising the choice to
which he is constitutionally entitled by responding in
less than forthright fashion to the efforts by counsel to
contact the suspect.’’ Id., 167.
Our Supreme Court clarified the narrow confines of
Stoddard in State v. Whitaker, 215 Conn. 739, 751–52,
578 A.2d 1031 (1990). In that case, the defendant, who
was a minor at the time of the custodial interrogation
in question, argued that Stoddard required officers to
inform him that his mother had called the police station
and told them that she wanted him to speak with an
attorney. Id., 751. The court rejected the defendant’s
claim, stating that ‘‘Stoddard prohibited only police
interference in the attorney-client relationship.’’ (Inter-
nal quotation marks omitted.) Id., 752. The court consid-
ered the advice of the defendant’s mother to be ‘‘more
akin to an abstract offer to call some unknown lawyer
than the concrete offer of [legal] assistance that Stod-
dard protects.’’ (Internal quotation marks omitted.) Id.
Like Whitaker, the present case does not directly
implicate the attorney-client relationship or to involve
a concrete offer of legal assistance. Instead, the defen-
dant is asking this court to adopt a rule that would
require interrogating officers to clarify equivocal or
ambiguous references to an attorney in order to deter-
mine whether the defendant wants to invoke his right
to counsel. Stoddard does not support the proposition
that interrogating officers have a duty to help suspects
calibrate their self-interest in deciding whether to speak
or to invoke their Miranda rights. See State v. Stoddard,
supra, 206 Conn. 168 (‘‘the police have no general duty
to ‘supply a suspect with a flow of information to help
him calibrate his self-interest in deciding whether to
speak or stand by his rights’ ’’); see also State v. Lock-
hart, supra, 298 Conn. 554 (Stoddard does not ‘‘[indi-
cate] that our state constitution imposes greater
protections with regard to the advisement of Miranda
rights or requires additional corroboration for admis-
sion of testimony describing such an advisement’’).
Finally, the defendant relies on pre-Davis precedent,
in which our Supreme Court held that the federal consti-
tution requires police officers upon the defendant’s
making of an ambiguous or equivocal reference to an
attorney to cease questioning immediately and to clarify
the statement. State v. Anderson, 209 Conn. 622, 627,
553 A.2d 589 (1989); State v. Acquin, 187 Conn. 647,
673–75, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229,
103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983), overruled in
part by Davis v. United States, 512 U.S. 452, 459, 114
S. Ct. 2350, 129 L. Ed. 2d 362 (1994); see also State v.
Anonymous, 240 Conn. 708, 723 n.16, 694 A.2d 766
(1997). The defendant argues that because of this prece-
dent, he ‘‘is not asking this court to ‘go out on a limb’
to make ‘new law,’ but is rather asking the court to
embrace the ‘old law’—and to refuse to follow Davis’
step backward with respect to the Miranda right to
counsel.’’ (Emphasis in original.) The problem with the
defendant’s argument is that neither Anderson nor
Acquin illuminate the issue presently before this
court—whether (and why) our state constitution
affords greater protection than the federal constitution
in this context—because neither case adopted the clari-
fication approach because of state specific factors.
Instead, our Supreme Court adopted the clarification
approach because, at the time, the United States
Supreme Court had not provided guidance on how to
address ambiguous or equivocal references to counsel
and the trend among federal courts was to require clari-
fication. State v. Anderson, supra, 627–28; State v.
Acquin, supra, 673–75.
4
The fourth Geisler factor, persuasive precedents of
other state courts, favors the state. The majority of
states to address the specific issue of whether their state
constitutions require interrogating officers to clarify
ambiguous invocations of the right to counsel have
followed Davis and declined to require clarification.16
E.g., People v. Crittenden, 9 Cal. 4th 83, 129, 885 P.2d
887, 36 Cal. Rptr. 2d 474 (1994), cert. denied, 516 U.S.
849, 116 S. Ct. 144, 133 L. Ed. 2d 90 (1995); State v.
Owen, 696 So. 2d 715, 719 (Fla.), cert. denied, 522 U.S.
1002, 118 S. Ct. 574, 139 L. Ed. 2d 413 (1997); Taylor
v. State, 689 N.E.2d 699, 704 (Ind. 1997); State v. Morgan,
559 N.W.2d 603, 609 (Iowa 1997); State v. Morris, 255
Kan. 964, 981, 880 P.2d 1244 (1994); Franklin v. State,
170 So. 3d 481, 491 (Miss. 2015); State v. Nixon, 369
Mont. 359, 368–69, 298 P.3d 408 (2013); State v. Perry,
146 N.M. 208, 217, 207 P.3d 1185 (App. 2009); State v.
Saylor, 117 S.W.3d 239, 245–46 (Tenn. 2003), cert.
denied, 540 U.S. 1208, 124 S. Ct. 1483, 158 L. Ed. 2d 133
(2004); State v. Panetti, 891 S.W.2d 281, 283–84 (Tex.
1994); State v. Horton, 195 Wash. App. 202, 216–17, 380
P.3d 608 (2016), review denied, 187 Wash. 2d 1003, 386
P.3d 1083 (2017); State v. Farley, 192 W. Va. 247, 256,
452 S.E.2d 50 (1994); State v. Jennings, 252 Wis. 2d
228, 249, 647 N.W.2d 142 (2002); see Commonwealth v.
Sicari, 434 Mass. 732, 746 n.10, 752 N.E.2d 684 (2001)
(Supreme Judicial Court of Massachusetts ‘‘content to
interpret’’ applicable provision in state constitution as
fifth amendment has been interpreted by United States
Supreme Court), cert. denied, 534 U.S. 1142, 122 S. Ct.
1096, 151 L. Ed. 2d 993 (2002). In many of these cases,
the court’s decision was driven by the fact that the
relevant state constitutional provisions were virtually
identical to and had been previously treated as coexten-
sive with the relevant federal constitutional provisions.
E.g., People v. Crittenden, supra, 129; State v. Morris,
supra, 979–80; State v. Saylor, supra, 245–46; State v.
Horton, supra, 216–17; State v. Jennings, supra, 248–49;
see also State v. Perry, supra, 216–17 (defendant failed
to show federal analysis is flawed or there is structural
difference between relevant state and federal pro-
visions).
We have found only four states that have rejected
Davis on the grounds that their state constitutions pro-
vide greater protection than the federal constitution in
this context. See Steckel v. State, 711 A.2d 5, 10–11 (Del.
1998); State v. Hoey, 77 Haw. 17, 36, 881 P.2d 504 (1994);
State v. Risk, 598 N.W.2d 642, 648–49 (Minn. 1999);
State v. Charboneau, 323 Or. 38, 58–60, 913 P.2d 308
(1996).17 These decisions are unpersuasive, however,
because they appear to be driven by judicial preference
for the clarification approach rather than by a meaning-
ful distinction between the state and federal constitu-
tions. Indeed, none of the decisions involved any
meaningful state constitutional analysis, such as we are
required to perform pursuant to the Geisler decision.
5
The parties agree that the fifth Geisler factor, histori-
cal insights into the intent of the constitutional framers,
is neutral because Miranda warnings did not exist in
1818 when our constitution was originally enacted.18
6
The sixth Geisler factor, relevant public policies, is
neutral because there are policy arguments in favor of
both the Davis bright-line approach and the clarifica-
tion approach. The comparative merit of each approach
was thoroughly explored in Davis. Compare Davis v.
United States, supra, 512 U.S. 458–62 (adopting the
bright-line approach) with id., 469–75 (Souter, J., con-
curring in the judgment) (advocating for the clarifica-
tion approach). In addition, numerous academic works
have addressed the impact of Davis as well as the merits
of the bright-line and clarification approaches. E.g., M.
Strauss, ‘‘Understanding Davis v. United States,’’ 40
Loy. L.A. L. Rev. 1011, 1012–13 (2007) (analyzing com-
parative impact of Davis on women, minorities, and
Caucasian men); T. Levenberg, ‘‘Fifth Amendment—
Responding to Ambiguous Requests for Counsel Dur-
ing Custodial Interrogations Davis v. United States,
114 S. Ct. 2350 (1994),’’ 85 J. Crim. L. & Criminology 962,
963 (1995) (analyzing merits of bright-line, clarification,
and per se approaches and proposing modified clarifica-
tion approach); see also State v. Effler, 769 N.W.2d 880,
896 (Iowa) (Appel, J., specially concurring) (collecting
academic and judicial writings criticizing Davis), cert.
denied, 558 U.S. 1096, 130 S. Ct. 1024, 175 L. Ed. 2d 627
(2009). These policy perspectives need not be repeated
here except to note that the policy debate among the
legal and academic communities reflects the fact that
‘‘Miranda represents a compromise between the need
of the state for effective interrogation of a suspect to
solve a crime and the right of the individual to say
nothing that may incriminate him.’’ State v. Stoddard,
supra, 206 Conn. 181 (Shea, J., dissenting); accord
Davis v. United States, supra, 460–61; Davis v. United
States, supra, 469 (Souter, J., concurring in the judg-
ment). In essence, the bright-line approach adopted
by Davis prioritizes society’s interest in effective law
enforcement whereas the clarification approach the
defendant advocates prioritizes the individual’s right
not to say something that may incriminate him by secur-
ing the advice of counsel.
Having performed a complete Geisler analysis of the
defendant’s state constitutional claim in this appeal, we
conclude that article first, § 8, does not provide greater
protection than the federal constitution with respect to
ambiguous or equivocal references to counsel during
a custodial interrogation. Having reviewed our own con-
stitutional language, precedents and history, we cannot
discern any meaningful difference between the state
and federal constitutional protections against compul-
sory self-incrimination that would justify or require a
‘‘third layer of prophylaxis’’ that the United States
Supreme Court has found to be unnecessary. Moreover,
the vast majority of our sister states have concluded
that their state constitutions do not afford greater pro-
tections than the federal constitution in this context.
Although some states have elected to adopt the clarifi-
cation approach as a matter of state constitutional law,
the reasoning in those decisions is not persuasive.
Finally, although the defendant’s position finds some
support in the academic and legal communities, we do
not believe that countervailing policy arguments are
sufficient justification to diverge from our Supreme
Court’s well established precedent holding that our self-
incrimination and due process clauses are coextensive
with the federal self-incrimination and due process
clauses. We therefore decline to adopt a new state con-
stitutional standard at this time.
Nonetheless, we believe that it is appropriate in this
opinion to reiterate the advice offered by the United
States Supreme Court in Davis: ‘‘[W]hen a suspect
makes an ambiguous or equivocal statement it will
often be good police practice for the interviewing offi-
cers to clarify whether or not he actually wants an
attorney. . . . Clarifying questions help protect the
rights of the suspect by ensuring that he gets an attorney
if he wants one, and will minimize the chance of a
confession being suppressed due to subsequent judicial
second-guessing as to the meaning of the suspect’s
statement regarding counsel.’’ (Emphasis added.) Davis
v. United States, supra, 512 U.S. 461.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53-21 provides in relevant part: ‘‘(a) Any person who
(1) wilfully . . . causes or permits any child under the age of sixteen years
to be placed in such a situation that . . . the morals of such child are likely
to be impaired . . . or (2) has contact with the intimate parts . . . of a
child under the age of sixteen years . . . in a sexual and indecent manner
likely to impair the health or morals of such child . . . .’’
‘‘Intimate parts’’ means, in relevant part, ‘‘the genital area . . . .’’ General
Statutes § 53a-65 (8).
2
In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to identify the
victim or others through whom the victim’s identity may be ascertained.
See General Statutes § 54-86e.
3
The victim’s mother testified that he is in the middle of the autism scale
and considered high functioning.
4
The defendant is not circumcised.
5
At trial, the victim’s father maintained that he spoke to the victim about
his sexuality because his wife found pictures of penises on the victim’s
Nintendo DS. In his statement to the police on September 30, 2013, however,
he stated that he spoke to the victim about his sexuality because his wife
found pictures of his stomach on the victim’s Nintendo DS and the victim
was always rubbing and touching his stomach. The victim’s father did not
mention in his police statement that his wife had found pictures of penises
on the victim’s Nintendo DS.
6
We observe, without further comment, that the victim’s mother worked
for seven years as a police officer in New Haven and approximately twenty-
two years in adult probation. She further acknowledged at trial that, in that
capacity, she had testified ‘‘countless’’ times and was comfortable in a
courtroom setting.
7
The defendant further asks this court to exercise its supervisory authority
over the administration of justice to implement a cease and clarify rule.
‘‘It is well settled that [a]ppellate courts possess an inherent supervisory
authority over the administration of justice.’’ (Internal quotation marks omit-
ted.) State v. Elson, 311 Conn. 726, 764, 91 A.3d 862 (2014). ‘‘The exercise
of our supervisory powers is an extraordinary remedy to be invoked only
when circumstances are such that the issue at hand, while not rising to the
level of a constitutional violation, is nonetheless of utmost seriousness, not
only for the integrity of a particular trial but also for the perceived fairness
of the judicial system as a whole.’’ (Internal quotation marks omitted.)
Id., 765. The defendant’s request implicates the scope of our supervisory
authority, however, ‘‘because we normally exercise this power with regard
to the conduct of judicial actors.’’ State v. Lockhart, 298 Conn. 537, 576, 4 A.3d
1176 (2010). Although imposing a cease and clarify rule on law enforcement
would directly affect the admissibility of evidence, which is surely within
the authority of this court, it would also directly implicate the activities of law
enforcement agencies. Accordingly, we decline to invoke our supervisory
authority in the present case. Accord State v. Fernandez, 52 Conn. App. 599,
615, 728 A.2d 1 (declining defendant’s invitation to exercise our supervisory
authority ‘‘[b]ecause acceptance of the defendant’s invitation would require
this court to exercise our supervisory powers outside the conduct of judicial
actors’’), cert. denied, 249 Conn. 913, 733 A.2d 229, cert. denied, 528 U.S.
939, 120 S. Ct. 348, 14 L. Ed. 2d 272 (1999).
8
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
9
Zerella testified at trial that ‘‘I actually didn’t have a picture of [the
defendant] . . . without any clothes on. I never did.’’ He explained that
lying to a suspect is a tactic often used by members of law enforcement to
obtain information or an admission from a suspect.
10
Although the defendant invoked his right to counsel under the Connecti-
cut constitution, he did not argue before the trial court that the Connecticut
constitution affords greater protection than the federal constitution with
respect to ambiguous invocations of the right to counsel during custodial
interrogations.
11
Pursuant to Practice Book § 64-1 (a) (4), the defendant has provided
this court with a signed transcript of the court’s oral ruling.
12
Our standard of review of a trial court’s findings and conclusions in
connection with a motion to suppress is well defined. ‘‘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 memoran-
dum of decision . . . .’’ (Internal quotation marks omitted.) State v. Gonza-
lez, 302 Conn. 287, 295–96, 25 A.3d 648 (2011).
13
‘‘Under Golding, a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Internal quotation marks omit-
ted.) State v. Dixon, 318 Conn. 495, 511, 122 A.3d 542 (2015). ‘‘The first two
steps in the Golding analysis address the reviewability of the claim, while
the last two steps involve the merits of the claim.’’ (Internal quotation marks
omitted.) State v. Britton, 283 Conn. 598, 615, 929 A.2d 312 (2007). ‘‘The
appellate tribunal is free, therefore, to respond to the defendant’s claim by
focusing on whichever condition is most relevant in the particular circum-
stances.’’ (Internal quotation marks omitted.) State v. Dixon, supra, 511.
14
Article first, § 8, of the Connecticut constitution, as amended by articles
seventeen and twenty-nine of the amendments, provides in relevant part:
‘‘No person shall be compelled to give evidence against himself . . . .’’
The fifth amendment to the United States constitution provides in relevant
part: ‘‘[No person] shall be compelled in any criminal case to be a witness
against himself . . . .’’
15
Article first, § 8, of the Connecticut constitution, as amended by articles
seventeen and twenty-nine of the amendments, provides in relevant part:
‘‘No person shall be . . . deprived of life, liberty or property without due
process of law . . . .’’
The fifth amendment to the United States constitution provides in relevant
part: ‘‘No person shall be . . . deprived of life, liberty, or property, without
due process of law . . . .’’
The fourteenth amendment to the United States constitution provides in
relevant part: ‘‘No State shall . . . deprive any person of life, liberty or
property, without due process of law . . . .’’
16
North Carolina has also adopted Davis’ bright-line approach as a matter
of state statutory law. See State v. Saldierna, 794 S.E.2d 474, 479 (N.C.
2016). Some states have also endorsed Davis’ bright-line approach but not
specifically evaluated whether their state constitution requires them to fol-
low Davis. E.g., Harte v. State, 116 Nev. 1054, 1066–68, 13 P.3d 420 (2000)
(holding the rule announced in Davis applies to custodial interrogations
in Nevada and overruling conflicting precedent but not analyzing Nevada
constitution); Hadden v. State, 42 P.3d 495, 504 (Wyo.) (finding Davis persua-
sive and adopting Davis’ bright-line approach but not analyzing Wyoming
constitution), cert. denied, 537 U.S. 868, 123 S. Ct. 272, 154 L. Ed. 2d 114
(2002). Other states have endorsed Davis but interpreted Davis to apply
only to the post-Miranda waiver context. E.g., State v. Blackburn, 766
N.W.2d 177, 183 (S.D. 2009); State v. Leyva, 951 P.2d 738, 743 (Utah 1997)
(abrogating state precedent to extent it contradicts Davis because Miranda
warnings not required under state constitution). Accordingly, interrogating
officers in those states must clarify an ambiguous or equivocal invocation
of the right to counsel if the invocation is made before the suspect waives
his Miranda rights.
17
New Jersey has also adopted the clarification approach, albeit not on
state constitutional grounds. The right against self-incrimination under New
Jersey law ‘‘is founded on a common-law and statutory—rather than a
constitutional—basis.’’ State v. Chew, 150 N.J. 39, 50, 695 A.2d 1301 (1997).
Although ‘‘New Jersey law governing the privilege against self-incrimination
generally parallels federal constitutional doctrine’’; id.; the New Jersey
Supreme Court rejected Davis because it seemed ‘‘prudent’’ to continue to
apply the clarification approach it adopted prior to Davis. Id., 63.
18
Although our state constitution has been amended since 1818, the self-
incrimination and due process clauses were present in the original consti-
tution.