State v. Sostre, No. Hhd-Cr99-0165989-T (Oct. 11, 2002)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON DEFENDANT'S AUGUST 8, 2002 MOTION TO SUPPRESS STATEMENTS Pursuant to an August 8, 2002 motion, the defendant seeks to suppress a written statement he gave to police interrogators. The facts underlying the case are set out in the Supreme Court's decision in State v. Sostre,261 Conn. 111 (July 30, 2002), and will not be repeated here.

Defendant claims in his motion that:

1. Said statements were not voluntary, in violation of the defendant's rights to due process of law and, or;

2. Said statements were obtained in violation of the rule of Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny. See also State v. Ferrell, 191 Conn. 37, 40-41 (1983) and, or;

3. Said statements were obtained in violation of the defendant's right to counsel and, or;

4. Article 1, Sections 8 and 9 of the Connecticut Constitution require the state to prove advisement and waiver of Miranda rights and voluntariness of a defendant's statement beyond a reasonable doubt when such statements are used as evidence of capital felony and the state cannot do so. (But see State v. James, 237 Conn. 390 (1996) and State v. LaPointe, 237 Conn. 697 (1996)) and, or;

5. Under Article 1, Sections 8 and 9 of the Connecticut Constitution, the defendant's physical, emotional and mental state rendered any such statements involuntary as a matter of state constitutional law. CT Page 13522

The defense has filed an October 4, 2002, Memorandum in Support of its motion. The State has responded with a memorandum dated October 7, 2002, in Opposition.

Having considered the full record, relevant cases, and the arguments put forth by counsel in court and in their written submissions, the Court denies the motion for the reasons set forth below.¹

Findings of Fact:

An evidentiary hearing was held on October 1 and 2, 2002. Witnesses at the hearing were Detective Reinaldo Ortiz, a state trooper; Det. Luisa St. Pierre of the Hartford Police Department; Det. Andrew Weaver of the Hartford Police Department; and Sgt. Stephen J. Miele of the Hartford Police Department. The Court found these witnesses to be credible and reliable. Based upon the evidence produced at the hearing, the Court finds as follows:

Sgt. Stephen J. Miele responded to a call on the evening of January 26, 1999. He knew that there was an outstanding warrant for the defendant and that the defendant was a suspect in the shooting of Officer Aselton. He believed the warrant related to a domestic violence case. At approximately 1:15 a.m. on January 27, 1999, he went to 189-91 and 193-95 Russ Street, which are separate buildings. Approximately 20 uniformed and identifiable police officers were there from three different police departments. He successfully served the warrant on Alex Sostre and took him into custody. He recalled the accused opening the locked door of the apartment in which he was located and putting his hands up to his sides. The defendant was ordered to the ground and cooperated. Defendant's hands were handcuffed behind his back. He was patted down for weapons and none were. found. Officer Andrew Weaver took the defendant to the Major Crimes Squad — then referred to as Crimes Against Persons (CAPERS) Division — at the Hartford Police Station. Sgt. Miele could not recall precisely when he took defendant into custody.

Det. Andrew Weaver was a patrol officer on January 26, 1999. He was sent to 189 Russ Street that evening to attempt to locate defendant in connection with an outstanding domestic violence warrant. He successfully took the defendant into custody at between 1 and 1:15 a.m. Many officers were present at Russ Street to search and secure the building. Defendant was arrested, placed in handcuffs, taken down a back stairwell, and placed into a police cruiser. Two detectives were in the vehicle with defendant. The warrant was served on him. Defendant cooperated. Defendant was taken to an interview room at the Major Crimes Squad at the Hartford CT Page 13523 Police Station. Det. Weaver saw defendant crying in the interview room.

Reinaldo Ortiz, a state trooper with 15 years of experience, stated that he had received training in interviewing and interrogation of suspects, including advanced interviewing and interrogation. Specifically, he has had training and experience in connection with the giving of Miranda warnings, which he was taught to give as a standard procedure.

On January 27, 1999, he was assigned to interview Alex Sostre, also known as Noel Sostre, at the Hartford Police Department. The interview took place in an interview room upstairs in the Hartford Police Department. He arrived at the station at around 6 a.m. the morning of January 27, and first encountered the defendant in an interview room at about 7:30 a.m. The room had a desk and a couple of chairs. When Det. Ortiz arrived, he was informed that someone was in the room with the defendant. Det. Ortiz knew defendant was being held on a Hartford arrest warrant. He also knew defendant was a suspect in the shooting of Officer Aselton. Upon encountering defendant, Det. Ortiz, who speaks Spanish, asked defendant if he spoke any English. Defendant indicated that he was a lot more comfortable speaking Spanish; the interview was conducted in Spanish. The defendant indicated no difficulty in communicating with Det. Ortiz and expressed no difficulty in understanding him. During the interview, the defendant's hands were handcuffed in front of him. Det. Ortiz had his uniform on, his badge on, and was armed.

At the start of the interview, Det. Ortiz advised defendant of his Miranda rights by reading the rights to him off the advice of rights form written in Spanish. In Court, Det. Ortiz translated the form, State's Exhibit 1, which enumerated the Miranda rights, into English. Defendant signed his initials after each right and signed the form at the bottom following language which summarized the rights he was waiving and recited that he was speaking "freely, without any threat, fear or promises." Det. Ortiz reviewed the form line by line with the defendant, and explained the rights to him. He read the waiver language to the defendant. Det Ortiz observed the defendant take the document and look at it. Defendant did not ask any questions about the document and said he understood his rights. Defendant wanted to talk. Defendant indicated that he was 23 years old. He signed the form at 7:30 a.m.

At the start of the interview, defendant appeared to be very nervous. As the interview wore on, defendant talked freely and at times became quite emotional. At times, he put his head down and became quiet. But overall, concluded Det. Ortiz, defendant wanted to talk. At no time did defendant indicate any reservations about talking. When the interview CT Page 13524 began, Det. Buglione, who is not Spanish speaking, was present. Det Ortiz requested the presence of another Spanish speaking officer, so Det. Luisa St. Pierre, who speaks Spanish, was brought into the room.

Defendant was asked if he was under the influence of alcohol or narcotics. There was no indication he was. He was asked if he needed anything and he said he did not. Initially, defendant was asked about his family situation, including his relationship with his wife, where he lived, and where he grew up. In this initial part of the interview, which lasted fifteen to twenty minutes, defendant spoke freely and never indicated any difficulty in understanding. Eventually, the discussion turned to the East Hartford incident. Det. Ortiz indicated to defendant that he was investigating a robbery and the shooting of Officer Aselton. The entire interview lasted about four hours. Defendant was given a soft drink; he never requested food. At about 10 a.m. or 10:15 a.m. he asked if he could see his wife and his daughter; that request was granted once the interview was concluded, after 12 noon.

Defendant gave a statement. Defendant implicated his codefendants as being accomplices in the robbery and implicated one of them as having shot Officer Aselton. Det. St. Pierre took notes during the interview, then used a laptop to prepare a written statement. During the interview, the defendant demonstrated some of the events that took place during the robbery and showed his position with regards to the confrontation with Officer Aselton. He never asked to use the bathroom. Both Det. Ortiz and Det. St. Pierre asked questions. The interview proceeded in a question and answer format.

After the statement, State's Exhibit 2, had been typed on the laptop, it was printed out and shown to the defendant. The statement was read back to him. He was permitted to read the statement and signed it in the presence of Dets. Ortiz and St. Pierre. He asked no questions about the statement and indicated no difficulty in reading it. On State's Exhibit 1, it is indicated that defendant attended school through the ninth grade and can read Spanish. It is also indicated that he cannot write in English but can write in Spanish. The defendant never reviewed or approved State's Exhibit 3, the English translation of State's Exhibit 2, prepared by Det. Ortiz.

Det. Ortiz read to defendant the portion of the statement indicating that defendant had been advised of his rights and waived them. The defendant had no questions about this portion of the statement.

Defendant never requested any desire to break off questioning during the four hour interview. Nor did defendant refuse to answer any CT Page 13525 questions, express confusion, or indicate he was unable to answer any questions put to him. He was emotional and upset and cried during the interview. During the interview, the defendant asked about the other witnesses and if they were providing information.

After the defendant had signed the written statement, Det. Ortiz stepped out of the interview room and was presented with another document, a waiver form, relating to a notice from the public defender's office. Det. Ortiz was instructed by Lieutenant Timothy Barry to present this waiver form to the defendant, which he did. The defendant signed the form at 12:02 p.m. See State's Exhibit 4. The form indicates, in summary, that defendant has been advised by Dets. Ortiz and St. Pierre that legal counsel was available to consult with him regarding charges he was facing or could face, and that he gave up his rights to speak to a lawyer. The defendant had no reservations about signing this form and signed it in Det. Ortiz's presence. After the defendant signed this waiver form, he was not interviewed further. At the time of the interview, defendant had not been charged with the murder of Officer Aselton. Neither Det. Ortiz nor Det. St. Pierre became aware of the attempt by the Office of the Public Defender, see Defendant's's Exhibits A and B, to request that any suspect in the death of Officer Aselton be informed that the Office of the Public Defender was available for a consultation with the defendant until after he had finished giving the statement memorialized in State's Exhibit 2.

Luisa St. Pierre, a detective in the major crimes division for 15 years, testified. She went to 189 Russ Street on the evening of January 26, 1999 and proceeded to the apartment of defendant's mother, where she stayed throughout the night. She went to the Hartford Police Department in the morning and was told that her assistance was required because she spoke Spanish. She went to the Major Crimes interview room. She believes defendant was offered food. State's Exhibit 4, the waiver of counsel form, was given to defendant after he had been interviewed and signed State's Exhibit 2. the statement.

Defendant did not testify at the hearing.

Conclusions of Law:

The defendant has challenged his written statement in a number of respects. He argues that the statement was not made knowingly and voluntarily; that the statement was obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966) and its progeny, and Statev. Ferrell, 191 Conn. 37, 40-41 (1983); and that the statement was made in violation of defendant's right to counsel under State v. Stoddard, CT Page 13526206 Conn. 157 (1988).

The parties agree, and the record reflects, that the defendant was lawfully in custody when the questioning occurred.

To demonstrate that the defendant knowingly and voluntarily waived his privilege against self-incrimination, the State must show by a preponderance of the evidence that the defendant knowingly and intelligently waived his constitutional right to remain silent. State v.Schroff, 206 Conn. 182, 195 (1988); State v. Toste, 198 Conn. 573,579-580 (1986). The waiver must be made with a full awareness of the nature of the right being abandoned and the consequences of abandoning it. Moran v. Burbine, 475 U.S. 412, 421 (1986). The question is "whether the defendant in fact knowingly and voluntarily waived his rights delineated in the Miranda case," North Carolina v. Butler, 441 U.S. 369,373 (1979), and is an issue not of form, but of substance. Whether or not a waiver has occurred must be determined in light of the facts and circumstances of each case, including "the background, experience and conduct" of the accused. Johnson v. Zerbst, 304 U.S. 458, 464 (1938)

Factors to be considered in determining whether a defendant has "knowingly and intelligently" waived his rights under Miranda are set out in the Toste case at 198 Conn. 580-581. These factors will now be considered individually.

1. The Defendant's Level of Experience. While there is substantial evidence in the overall record of the case that the defendant has had considerable experience with the criminal justice system, evidence produced at the hearing on the motion to suppress, to which the Court is confining itself, indicates very little about his level of experience. Defendant's Exhibit C does indicate that in July, 1998, defendant was represented by the Office of the Public Defender in at least 3 cases. There is nothing in the record that indicates that the defendant was confused, did not understand what was occurring, failed to understand the legal rights he waived, or failed to appreciate the consequences of the waiver. State v. Pinder, 250 Conn. 385, 425-426 (1999).

2. The Defendant's Intelligence. The evidence at the hearing, including the testimony of the witnesses, see State's Exhibit 1, indicates that the defendant attended school through the ninth grade, speaks and writes Spanish, reads Spanish and English, and writes in Spanish but not English. There is nothing in the evidence at the hearing on the motion to suppress that suggests that the defendant was lacking in intelligence, suffered from a mental deficiency, or that intellectual limitations influenced his judgements when questioned by Detectives Ortiz and St. CT Page 13527 Pierre. State v. DeAngelis, 200 Conn. 224, 235 (1986).

3. The Defendant's Age at the Time of the Statement. The evidence, see State's Exhibit 1, indicates that he was 23 when the statement was made, and was thus an adult. State v. Perez, 218 Conn. 714 (1991) (statement of 14 year-old admissible.)

4. The Defendant's Education. As noted above, the evidence indicates that defendant attended school through the ninth grade. See State's Exhibit 1. This education level does not prevent the Court from concluding that his statement was made voluntarily and knowingly. Statev. Toste, 198 Conn. 581 (1986) (defendant operating at a sixth to seventh grade level.)

5. The Defendant's Vocabulary and Ability to Read and Write in theLanguage in Which the Warnings Were Given. The evidence indicates that the defendant was able to read and write in Spanish, the language in which the interview was conducted by the two Spanish-speaking officers who interrogated him. See State's Exhibit 1. There is no indication that his decision to talk with the police was influenced by a lack of understanding or comprehension of what was occurring, or what was being said. The defendant was given an opportunity to review the statement with his interrogators.

6. The Lack of Any Advice as to His Constitutional Rights. This will be fully discussed below when the Court addresses the issues raised by Statev. Stoddard.

7. The Length of Detention. The witnesses were not precise on this point, but the record indicates that the defendant was taken into custody at approximately 1:15 a.m. the morning on January 27, was held overnight without being questioned, and that the questioning began at 7:30 a.m. See State's Exhibit 1, signed by defendant at 7:30 a.m. The evidence indicates that the questioning lasted for approximately four to four-and-a-half hours.

Although he may have been up all night, there is no indication in the evidence that the relatively modest length of overnight detention in any way served to overwhelm defendant's will or reasoning powers. See Statev. Hafford, 252 Conn. 274, 299-300 (2000) (defendant was awake for twenty-seven hours during which he was interrogated eight times); Statev. DeAngelis, 200 Conn. 235 (1986) (almost eleven hours of interrogation); cf. Culombe v. Connecticut, 367 U.S. 568 (1961) (five day interrogation). CT Page 13528

8. The Repeated and Prolonged Nature of the Questioning. The evidence indicates that during the night, the defendant was not being questioned; the questioning only began at approximately 7:30 a.m. There is no indication that defendant was subjected to anything like the kind of grueling, exhausting, or incessant questioning that courts have found troubling. Indeed, the uncontroverted testimony is that the defendant was not only willing to talk, but that he was anxious to learn what other codefendants were saying to police. See State v. Carter, 189 Conn. 631,637 (1983).

9. The Use of Physical Punishment, Such as the Deprivation of Food andSleep. The evidence indicates that there was no bed or cot in the interview room where defendant spent the night. It appears highly unlikely, under the circumstances, that he got any sleep, and the Court will proceed on that assumption. However, there is nothing in the record from which the court can conclude that the defendant was sleep-deprived, sleepy or even tired. Given his emotional state and the circumstances facing him, this is unlikely. None of the witnesses provided testimony suggesting that having been up during the night affected defendant's ability to fully understand, evaluate or appreciate the consequences of what he was doing. See State v. DeAngelis, supra, 200 Conn. 234 (interrogating officer knew defendant had not slept); State v. Carter,189 Conn. 631, 638 (while defendant may have been sleepy at end of interview, statement found to be voluntary nonetheless). He was handcuffed, but there is no indication this interfered with his ability to freely make decisions or had a coercive effect. The evidence, including defendant's interest in what co-defendants were saying, his desire to see his family, and his heightened emotional state all militate against any claim that tiredness overwhelmed his ability to knowingly, voluntarily and intelligently waive his rights.

There is no evidence that defendant was hungry. He was provided a soda. Det. St. Pierre testified that, to the best of her recollection, defendant was offered food. State v. Stevenson, 70 Conn. App. 29 (2002). He was offered the use of a bathroom.

It is not alleged that defendant was in any way whatever physically abused or punished while being interrogated, nor is there any evidence in that regard. The evidence indicates that defendant was treated professionally and courteously at all times. His request to see his wife and child was honored, following the end of the interrogation, shortly after noon.

10. The Defendant's General Physical, Mental and Emotional State. There is evidence that defendant was upset and cried. As the State has noted, CT Page 13529 it is perfectly understandable that he would be upset under the circumstances. His display of emotion, however, in no way suggests that defendant's mental or emotional state interfered with his ability to knowingly, intelligently and voluntarily assess his situation and understand and waive his legal rights. To the contrary, the evidence establishes that defendant was in full possession of his faculties when he decided to talk. Nothing in the record indicates that defendant was suffering from any physical or psychological limitation, condition or injury that could have adversely affected him. Nor is there anything in the record to suggest that he was under the influence of drugs, alcohol, or medications that could have interfered with his reasoning or decision making powers.

State v. Stoddard Issue

In reliance on State v. Stoddard, 206 Conn. 157 (1988), Defendant argues that his statements were taken in violation of his right to counsel and therefore ought to be suppressed.²

During the evidentiary hearing, over the State's objection, the Court admitted Defense Exhibits A and B as full exhibits. Exhibit A is a letter, dated January 25, 1999, signed by Senior Assistant Public Defender Ronald Gold of the Capital Defense and Trial Services Unit of the Office of the Chief Public Defender. It is addressed to Commanding Officer, State Police, Major Crimes Unit, Central District Headquarters, 294 Colony Street, Meriden, Connecticut 06451. Exhibit B is an identical letter addressed to Police Chief James Shay of East Hartford Police Department. Documents accompanying the exhibits indicate they were faxed to the intended recipients at 10:59 a.m. on January 25, 1999. The letters state as follows, in relevant part:

Dear Commanding Officer:

The Capital Defense and Trial Services Unit of the Office of the Chief Public Defender has become aware of your Department's investigation into the death of East Hartford Police Officer Brian Aselton on January 23, 1999, as reported in the media on Sunday and the Hartford Courant today.

In the event that any suspect is taken into custody in connection with this investigation,

I formally request that such suspect be informed, in accordance with State v. Stoddard, 206 Conn. 157 CT Page 13530 (1988), that an attorney from the Office of the Public Defender is available to consult with him or her for the purpose of providing legal assistance before or during questioning. Notification should be given to the suspect prior to any interrogation by members of your department or by other agents of the State of Connecticut, unless, of course, the suspect has expressed a desire for private counsel.

In the event that an individual accepts this offer of legal assistance, please contact me at this office . . . An attorney from the Division of Public Defender Services will respond as soon as possible for the initial purpose of insuring that the individual meets the financial guidelines for our services, and, if he or she does, for any appropriate, requested consultation.

The Stoddard case states that "a suspect must be informed promptly of timely efforts by counsel to render pertinent legal assistance." This duty on the part of the police departments to inform suspects exists regardless of whether or not a prior attorney-client relationship exists . . .

The Court agrees with the State that defendant's Stoddard argument must fail, and that as broad as the holding in Stoddard may be, it does not encompass the facts in this case.

General Statutes Section 51-296, "Designation of public defender for indigent defendant, codefendant," provides guidance. This states in relevant part as follows:

(a) In any criminal action . . . the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant . . . (c) Prior to a defendant's appearance in court in any matter specified in subsection (a) of this section, a public defender, assistant public defender or deputy public defender, upon a determination that the defendant is indigent pursuant to subsection (a) of section 51-297, CT Page 13531 shall be authorized to represent the defendant until the court appoints counsel for such defendant.

As a threshold matter, this statute, viewed through the lens ofStoddard, requires that two things occur before the Court can appoint a public defender to represent a defendant: first, a "criminal action" must be "pending" before a court; and second, a determination of indigency must be made.

In the present case, while the murder of Officer Aselton was being investigated at the time Defense Exhibits A and B were being sent, the case was not yet pending in court; Alex Sostre had not yet been taken into custody; no determination of indigency had been made; and defendant had not consented the be represented by the Office of the Public Defender. Defense Exhibits A and B, therefore, were faxed in anticipation of the possibility that an actual suspect would be taken into custody; that a case would be brought in court; that a finding of indigency would be made; and that defendant would consent to be represented by the public defender's office. While some of these contingencies were predictable, and some indeed did eventuate, they had not yet happened at the time Exhibits A and B were faxed. At the time the faxes were sent, no known suspect was in police custody.

As expansive as the Court's ruling was in Stoddard, the defense argument overestimates its reach. Notwithstanding the sweeping dicta inStoddard, this Court does not believe it authorizes the kind of anticipatory letters that were sent out in this case before a known suspect has even been taken into custody. Stoddard is distinguishable on its facts, and its holding must be viewed in light of those facts.³

In Stoddard, the defendant called detectives after learning that they wanted to question him in connection with a murder investigation. Defendant refused to be questioned at the police station, but discussed the case. Later, he gave a written statement. He was arrested by police, informed of his Miranda rights, and taken to the police station. After again being informed of his Miranda rights, he was taken to a room for interrogation.

Within 15 minutes of the arrest, defendant's girlfriend tried to reach William Fitzpatrick III, an attorney who had represented the defendant in the past. Subsequently, on four separate occasions, John Fitzpatrick, a partner of William Fitzpatrick, called the police station in an attempt to talk to the defendant. He was told that defendant was not in the custody of the Bridgeport police. Defendant did not know a lawyer was attempting to contact him; nor did the interrogating officers have knowledge of the CT Page 13532 efforts of counsel.

In an opinion by Chief Justice Peters, in reliance on the Connecticut Constitution, and contrary to cases under Federal law, see, e.g., Moranv. Burbine, 475 U.S. 412, 428 (1986), the Court ruled that ". . . a suspect must be informed promptly of timely efforts by counsel to render pertinent legal assistance." 206 Conn. 166-67. The Court stated that" . . . lack of knowledge on the part of the interrogating officers is not dispositive because it is for the police, as an entity, to establish and maintain adequate procedures that will facilitate the reasonably prompt communication between an attorney and a client." Id. at 172. The Court added that ". . . the prior existence of an attorney-client relationship is not relevant" to the police's duty to inform a suspect that counsel is available. The Court went on to consider under what circumstances statements obtained in violation of the police's duty must be suppressed. Rejecting what it characterized as the majority rule that "a lack of knowledge always fatally undermines the suspect's continuing right to claim the presence of counsel," the majority adopted a "totality of the circumstances" test, placing the burden of proof on the State by a preponderance of the evidence. 206 Conn. at 174-177. "The critical question is whether the information not conveyed by the police would likely have changed the defendant's appraisal and understanding of the circumstances." Id. at 175. "Of particular, but not exclusive relevance," continued Chief Justice Peters are "such facts and circumstances as the relationship of the suspect to the attorney, the nature of counsel's request, the extent to which the police had reasonable notice of counsel's request and the conduct of the suspect . . ."

In this case, the Court agrees with the State's argument that while the result in Stoddard is understandable given the facts of that case, theStoddard principle was not properly and timely triggered because there was no timely request to consult with a known suspect. In Stoddard, the defendant was formally placed under arrest when interrogated; in this case, defendant was taken into custody on an unrelated warrant. InStoddard, the defendant initiated the conduct with preexisting counsel through his girlfriend; in this case, the contact was initiated, unsolicited, by the Office of the Public Defender. In Stoddard, the repeated requests by counsel to contact his client were initiated after defendant was in custody, in response to his request for legal assistance; here, Exhibits A and B were faxed anticipatorily, prior to anyone — including defendant — being taken into custody. And in Stoddard, the Court clearly concluded that the police authorities deliberately interfered with counsel's attempt to contact an existing known client who had reached out for legal assistance. While Stoddard is explicitly not premised on a finding of police misconduct, there is no CT Page 13533 indication in the record in this case of any deliberate misconduct. To the contrary, the record indicates that as soon as the officers conducting the interview became aware that the Office of the Public Defender wished to consult with any suspect taken into custody, they informed defendant of this. Det. St. Pierre stated that although they wished to ask defendant more questions, they stopped questioning him at this point.

The Supreme Court's decision in Gipson v. Commissioner of Correction,257 Conn. 632 (2001), relied upon by defendant, does not alter the Court's view. In that case, by its very terms, at issue was a "criminal action" already pending in Court, as to which certification was being sought. Other cases relied upon by the defendant do not alter the Court's view either. See, e.g., State v. Reed, 133 N.J. 237 (1993) (police refused to permit attorney retained by family to consult with defendant already in custody at police headquarters); People v. McCauley,163 Ill.2d 414 (1994) (attorney retained by family refused opportunity to consult with defendant in custody at police station. In most of the cases relied upon by defendant, a known suspect was already in custody and was denied permission to consult with an attorney retained by someone with a connection to the defendant, such as the defendant's family.

The Court concludes that in this case there was no timely request of counsel to consult with a known suspect.

Even if this case did come within the broad ambit of Stoddard, consideration of the full record, including defendant's decision to knowingly, intelligently and voluntarily waive his Miranda rights and talk freely with the police, leads the Court to conclude that, by a preponderance of the evidence, the State has met its burden of demonstrating that the defendant would not likely have acted differently if he had received from the police information about Exhibits A and B. There is no indication that he was being represented by the public defender's office in connection with the domestic matter for which he was arrested on an outstanding warrant. However, he had been represented by the public defender's office in July, 1998, and was thus familiar with the existence of their services. Counsel's request, as contained in Exhibits A and B, was necessarily tentative because defendant had not been evaluated for indigency, and because he had not requested that the public defender represent him. There is nothing in the' record to suggest that. the police authorities intentionally delayed conveying the information to defendant. Detective Ortiz testified that as soon as he became aware of the letter, he conveyed information to defendant about it. Moreover, after conveying that information to defendant, defendant signed a waiver form, State's Exhibit 4 indicating he understood he had a CT Page 13534 right to legal representation at all times while being questioned, but waived that right. After he signed this form, no further questioning occurred. The decision to speak or stand mute, as was emphasized inStoddard at page 174, cannot be delegated to counsel. It is "a personal right of the suspect" which belongs "exclusively to him." See State v.Cobb, 251 Conn. at 360-364. Defendant signed State's Exhibit 4 after he had already waived his right to have counsel present and give a statement to police. Moreover, while on earlier occasions, see Defense Exhibit C, he had been represented by the public defender's office, there is nothing in the record demonstrating he knew who Attorney Gold was. The full record leads the Court to conclude the State has met its burden.

Pretext Argument

The defendant was taken into custody on an unrelated Hartford warrant, and then questioned about his involvement in the murder of Officer Aselton. Defendant argues, citing various cases, that arresting defendant on the outstanding warrant was a "pretext" to obtain his statement on capital felony charges. See Defendant's Memo in Support at page 11. This argument is not persuasive.

There is nothing in the record to indicate that the arrest of defendant was "pretextual." Police authorities lawfully arrested defendant on a valid, outstanding warrant. At the time of the arrest, police had information leading them to suspect that defendant had committed the murder of a police officer. Arresting defendant on an outstanding warrant amounted to the use of a common investigative technique to take into custody someone wanted for questioning, but that does not make it pretextual. State v. Falby, 187 Conn. 6 (1982)

The record does not indicate that Detectives Ortiz or St. Pierre tricked, misled or lulled defendant in any way given the presence of numerous officers when taken into custody at Russ Street, and the circumstances surrounding his arrest and conveyance to the Hartford police station. The defendant surely must have understood that the police wanted to talk to him about something other than his outstanding domestic case. The uncontroverted testimony of these two witnesses, which the Court credits, was that defendant talked freely and openly with them. The testimony was that the interrogating officers' first discussed family matters with defendant, and then segued into a discussion of the murder. The evidence is that, rather than being misled, defendant was anxious to obtain from the officers information about what other codefendants were saying about the robbery and murder. It is unpersuasive, given all the circumstances, to argue that defendant did not fully understand that police wanted to discuss the murder of Officer Aselton with him. See CT Page 13535Colorado v. Spring, 479 U.S. 564 (1987); Michigan v. Mosley, 423 U.S. 96,104-05 (1975). Under the circumstances, most particularly including defendant's interest in learning from the officers what he could about the investigation, it is clear that defendant understood himself to be a prime suspect in the murder. State v. Falby, 187 Conn. 6, 16 (1982). There is nothing in the record to suggest that police authorities "intentionally misled" defendant as to the purpose of the interrogation.State v. Boscarino, 204 Conn. 714, 745 (1987).

Conclusion

In State v. Pinder, 250 Conn. 385, 418-19 (1999), the Connecticut Supreme Court discussed the test to be used in evaluating the admissibility of a confession. Noted the Court:

We have stated that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant's] will to resist and bring about confessions not freely self-determined . . . The ultimate test remains . . . Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.

Considering the totality of the circumstances, there is no evidence that the defendant's decision to waive his rights, and talk to his interrogators, was anything other than the result of his free, considered and unconstrained choice. There is nothing in the record from which the Court could conclude that defendant acted under duress or that defendant's will to resist was overborne in any way, physically or psychologically. There is no evidence in the record indicating a lack of understanding by defendant of what he was doing or the legal consequences of his actions. At no time did defendant indicate a desire to speak to a lawyer, or a desire to terminate the interview. There is nothing in the record to suggest that his waiver was the result of trickery, coercion or lack of comprehension. At no time did defendant ask for clarification or explanation of what was occurring. There is nothing in the record to suggest that his statement was the result of threats or physical or emotional coercion, lack of sleep, or lack of food. The Court is unaware of any legal support for the proposition, urged by the defendant, that he did not understand the consequences "" of his conduct because he was not CT Page 13536 specifically informed that any statement he made could be used by the State to seek the death penalty.

For the reasons stated above, the Court concludes that the Stoddard principle does not apply, and that, even if it did, the State has met its burden of demonstrating that defendant's appraisal and understanding of the circumstances would not likely have changed even if he had been aware of the information contained in Exhibits A and B.

The State has met its burden of demonstrating that the defendant understood his rights and waived them knowingly, intelligently, and voluntarily when he submitted to interrogation and gave a statement to police.

Consequently, defendant's August 8, 2002 Motion to Suppress Statements is denied.

______________________ Douglas S. Lavin Judge, Superior Court