STATE v. FALBY
187 Conn. 6 (1982)
STATE OF CONNECTICUT v. EDWARD FALBY
Supreme Court of Connecticut.
Decision released May 4, 1982.
Richard T. Meehan, Jr., with whom, on the brief, was Kathleen M. VanDerAue, law student intern, for the appellant (defendant).
Richard F. Jacobson, assistant state's attorney, with whom, on the brief, were Donald A. Browne, state's attorney, and Eugene J. Callahan, assistant state's attorney, for the appellee (state).
SPEZIALE, C. J., PETERS, HEALEY, ARMENTANO and SHEA, JS.
This appeal from a conviction for murder questions the validity of a confession obtained from a suspect with regard to a crime entirely unrelated to the crime for which he was
The events surrounding the defendant's confession are substantially undisputed and were set forth by the trial court in a lengthy finding of facts. On June 10, 1978, the defendant was arrested in Westport during the commission of a burglary and was scheduled for arraignment on a charge of burglary in the third degree before the Court of Common Pleas on June 20, 1978. A local attorney, Jerrold Engelman, agreed to represent the defendant at his arraignment subject to payment of a retainer on the 20th; Engelman did not enter an appearance for the defendant until June 19.
On June 13, 1978, the body of a nine year old girl was discovered in a wooded area approximately one quarter of a mile from the defendant's home. A child who had walked through the area earlier in the afternoon described to the police an encounter with a slender, red-haired young man, and a composite drawing of the suspect appeared in local newspapers. On June 16 the child identified the defendant from a photo display as the young man he had spoken to. The defendant at that time was eighteen years old and had red hair.
Following this identification, Lieutenant William Smith of the Westport police department and
At the Westport police station the defendant was questioned by Smith and Draper from approximately 5:45 p.m. to 7 p.m., until the arrival of attorney Michael Cantore, who had been sent to police headquarters by Barbara Falby. In the course of his interrogation the defendant confessed to killing the nine year old girl, and that confession was recorded on tape; the defendant did not subsequently sign a written statement. The defendant was arrested on a bench warrant for murder at approximately 10 p.m. that night and taken to the Bridgeport Correctional Center at approximately 11:30 p.m., where a corrections officer once again advised the defendant of his rights pursuant to General Statutes § 54-43. At his jury trial for murder, the defendant's confession was, over his objection, admitted in evidence.
The defendant's first claim of error concerning the admissibility of his confession argues that the principles of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966), require the suppression of his confession because he was not
The principles of Miranda v. Arizona are well established and undisputed. In order to assure that a confession is voluntary, and to protect a suspect's constitutional privilege against selfincrimination,
The record in this case, which includes a complete transcript of all conversations between the police and the defendant from the moment of his arrest to the arrival of Attorney Cantore, lends considerable support to the defendant's allegation that his arrest for burglary was indeed unrelated to the custodial interrogation which followed. The record reveals a striking and sustained reluctance on the part of the police to articulate the subject of their concern. Repeatedly, the police evaded the
It is clear that the guidelines of Miranda do not, per se, limit police interrogation to the crime with which a suspect has been explicitly charged. Ordinarily, Miranda warnings permit the police to extend their questioning of one who is in custody to include crimes other than the very case under investigation. See Michigan v. Mosley, 423 U.S. 96, 104-105, 96 S.Ct. 321, 46 L. Ed.2d 313 (1975); Mathis v. United States, 391 U.S. 1, 4-5, 88 S.Ct. 1503, 20 L. Ed.2d 381 (1968). Good faith inquiry into the possible commission of one crime may legitimately unearth grounds for pursuing evidence of guilt for another crime. We are asked today to rule whether these principles permit the police deliberately to withhold from a suspect, at the time of issuing the Miranda warnings, the nature of the sole crime on which they intend to focus their interrogation.
The circumstances of the present case do not present an appropriate opportunity for deciding the extent to which the police have a duty to inform a suspect of the true subject of their intended interrogation. We recognize that this is an issue on which the case law is divided. For cases denying the existence of such a duty, see United States v. Anderson, 533 F.2d 1210, 1212 n.3 (D.C. Cir. 1976); Collins v. Brierly, 492 F.2d 735, 738-39 (3d Cir. 1975), cert. denied, 419 U.S. 877, 95 S.Ct. 140, 42 L. Ed.2d 116 (1974); United States v. Campbell, 431 F.2d 97, 99 n.1 (9th Cir. 1970); State v. Carter, 296 N.C. 344, 352-53, 250 S.E.2d 263 (1979) and cases cited therein; contra, see United States v.
The trial court found, as a matter of fact, that the defendant had actual knowledge that he was a prime suspect in the Westport murder. The overall issue of whether a confession is voluntary and admissible under the fifth amendment is a question of fact "for determination by the trial court in the exercise of its legal discretion.... in accordance with constitutional standards of due process. State v. Staples, 175 Conn. 398, 408, 399 A.2d 1269 (1978)." State v. Derrico, supra, 162-63; see State v. Devine, 149 Conn. 640, 652, 183 A.2d 612 (1962).
The transcript supports the trial court's factual determination. At the hearing on the motion to suppress, there was testimony concerning the publication in local newspapers, prior to the defendant's arrest, of a composite sketch of the murder suspect together with a description of a slender, red-haired young man. Barbara Falby testified that on June 15 the defendant had decided to speak to a police detective about the investigation but was dissuaded by her. This testimony, added to the defendant's own observation to the police that he had "ideas" about the reason for his arrest, adequately supports the trial court's finding of actual knowledge.
Since the defendant had sufficient knowledge of his actual situation at the time of his Miranda warnings, he was not misled by the failure of the police to disclose to him their intention to interrogate him about the murder. In these circumstances, the nature of the Miranda warnings that he received did not render the confession involuntary or its admission into evidence improper.
Although the record does not conclusively establish Attorney Engelman's representation of the defendant on the burglary charge at the time of his murder confession and the trial court made no relevant finding of fact, we need not resolve that question today. This court has recently held that "[t]he fact that the defendant had been represented by counsel in a different proceeding did not ... give notice to the police than an appearance had been entered by the defendant's counsel in connection with the charges then under investigation." State v. Derrico, supra, 168. Thus, even if Engelman's appearance for the defendant on the burglary charge had been entered prior to June 16, that appearance would in no way undermine an otherwise valid waiver of right to counsel for the murder interrogation. See State v. Wilson, 183 Conn. 280, 283-86, 439 A.2d 330 (1981); State v. Moscone, 171 Conn. 500, 510, 370 A.2d 1030 (1976). Finally, we note that since the defendant was eighteen years old at the time of his confession, his mother's efforts to secure counsel for him could not neutralize his own valid waiver of
The defendant's next claim for suppression rests upon the police strategy of promising him psychiatric help in return for a confession. Such promises made to a young man whom the police knew to have a troubled psychiatric history, the defendant argues, fatally weaken the voluntariness of his confession.
The transcript of the defendant's police interrogation supports the trial court's finding that "Lieutenant Smith's approach was that of a `Father Confessor'" urging on the defendant the beneficial consequences of a full confession. The transcript also, however, supports the trial court's further findings that no actual promises were made by the police and that the defendant's capacity for decision-making was not impaired by this method of interrogation. On the record before us we cannot say that the trial court's findings of voluntariness are clearly erroneous.
The defendant's final claims of error in the admission of his confession involve alleged procedural breaches by the authorities. First, the defendant objects that since he received no Miranda warnings from a judge of the Court of Common Pleas on the occasion of his June 10 warrantless burglary arrest as required by General Statutes § 54-1b, all subsequent confessions are barred by General Statutes § 54-1c. It is true that the latter statute renders inadmissible the confession of any suspect "who has not been informed of his rights
The defendant next charges violation of General Statutes § 54-43,
The defendant's first objection fails because an assistant state's attorney "in the absence from the county or district or disability of the state's attorney
The defendant's final claim for suppression is based on the time that elapsed between his initial arrest at approximately 5:20 p.m. and his appearance before an official of the Bridgeport Correctional Center at approximately 11:30 p.m. Under General Statutes § 54-43, any person arrested on a bench warrant must be taken "without undue
In its findings of fact, the trial court set forth a timetable for the afternoon and evening of June 16. According to that timetable, the defendant spent the hour from approximately 7 p.m. to 8 p.m. in conversation with Attorney Cantore. He spent the time from approximately 10 p.m. to 10:30 p.m. being photographed and fingerprinted at police headquarters in Westport; the drive from Westport to Bridgeport took an additional half hour. The defendant does not dispute these times. Of the six hours between arrest and arrival at the correctional center, then, two hours were consumed in related and reasonable activities. We cannot say, as a matter of law, that the remaining four hours, during which time the authorities obtained and executed a bench warrant for murder, constitute an undue delay. The fact that other arrangements might have been made to accelerate the defendant's progress does not by itself establish a statutory violation.
The defendant also claims error in the trial court's admission of testimony by a fourteen year old girl concerning an attack on her by the defendant one year prior to the murder. There are two bases for this claim: (1) that the state did not offer clear and convincing proof of the defendant's guilt
At a hearing on the defendant's motion to suppress, the witness testified that on June 27, 1977, she was walking her bicycle through a wooded area not far from the murder site when a young man approached her. After initiating a conversation and giving his name as "something like Holby or Folby," the young man began to help her with her bicycle. When the witness resisted his efforts to help, he "grabbed me around the neck and began to choke me." As the witness struggled, she and her attacker heard footsteps approaching. The attacker then threw her to the ground and ran off. On the evening of the crime the witness was unable to identify her attacker from a display of nine black and white photographs, including a recent photograph of the defendant. The witness did not recall seeing a bandage on the attacker's wrist, although there was testimony that the defendant wore such a bandage at that time. A year later, following the murder, the police returned with seven of the previous photographs and a new photograph of the defendant in place of the earlier one; the witness then identified the defendant as her attacker. She also subsequently identified the defendant in court. There was independent testimony by another witness, a friend who had been living with the Falby family at the time of the first attack, that the defendant had described to her an occasion on which "he was walking home from Norwalk through a path and there was a little girl on the path with a bicycle and he just had the urge to take her around the neck" and in fact did so.
This court has recently provided a succinct statement of our law on the admission of evidence of prior crimes by a defendant. "As a general proposition, evidence of guilt of other crimes, because of its prejudicial nature, is inadmissible to prove that a defendant is guilty of the crimes with which he is charged. State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368 (1970); State v. Harris, 147 Conn. 589, 599, 164 A.2d 399 (1960). Such evidence is admissible for other purposes, however, such as when it is particularly probative in showing such things as intent, an element in the crime, identity, malice, motive or a system of criminal activity, to name some exceptions to the rule. State v. Brown, 169 Conn. 692, 701, 364 A.2d 186 (1975). The trial judge, however, must determine in the exercise of judicial discretion that its probative value outweighs its prejudicial tendency. State v. Moynahan, [164 Conn. 560, 597, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L. Ed.2d 219 (1973)]; State v. Holliday, supra, 173. Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. State v. Hauck, 172 Conn. 140, 144, 374 A.2d 150 (1976);
The trial court had sufficient grounds for deciding that the witness' testimony was admissible. Although she did not identify the defendant from the first photo display and did not recall a bandage on his wrist, the witness' subsequent in-court identification was buttressed by her reliance on the color of the attacker's hair, a significant factor not present in the black and white photographs shown to her, and by her recollection of the name given by her attacker. The trial court had before it two attacks on young girls, one nine and the other twelve, in wooded areas in the same section of Westport, on similar June days one year apart. In each case, the attacker apparently initiated a conversation and offered assistance before seizing his victim. One victim reported that her attacker attempted to choke her with his hands; the other died of traumatic asphyxia, a cause of death which the state's chief medical examiner testified was consistent with manual strangulation. These facts, together with independent testimony concerning the defendant's account of the earlier attack, amply supported the court's determination that the disputed testimony was sufficiently probative of the issue of intent to commit murder to outweigh any prejudicial tendency. There was no error in the admission of the disputed testimony.
The defendant's next claim of error is the trial court's refusal to disqualify two of the state's expert witnesses who were given a transcript of testimony by the defense's expert in violation of a sequestration order, or, in the alternative, the court's refusal to dismiss the case against the defendant because of prosecutorial misconduct in violating that order.
The defendant, who offered an insanity defense, called as his expert witnesses Jonathan Pincus, a neurologist, and Dorothy O. Lewis, a psychiatrist. The state's expert witnesses, Robert Miller, a psychiatrist, and Michael S. Johnson, a psychologist, both received a complete transcript of Pincus' testimony prior to their appearances in court; the assistant state's attorney acknowledged that he had arranged for delivery of that transcript to his witnesses.
At the time Pincus testified a sequestration order affecting all witnesses was in effect. The defendant claims that that order, issued by the court mid-way through the trial in response to a request by counsel for both sides, adopted by reference the terms of the elaborate sequestration order imposed by the court during the hearing on the defendant's motion to suppress his confession. Further, the defendant argues that, even if the more elaborate order is not applicable, the state has
After a hearing in the absence of the jury, the trial court rejected the defendant's arguments, finding instead that the sequestration order in effect was a limited one and that the state's attorney, although overzealous, did not violate that order, intentionally or otherwise, and was not guilty of prosecutorial misconduct. Although the court found the remedies of disqualification and dismissal too drastic for what it termed an "unwise" action, it took several remedial steps. First, the court ordered that the transcript of Pincus' testimony be withheld from the state's neurologist. Second, the court permitted defense counsel to cross-examine the state's witnesses as to whether they had seen or been influenced by the transcript. Finally, the court informed the jury that in weighing the testimony of the expert witnesses it should remember that Lewis did not have access to Pincus' testimony but that Miller and Johnson did.
In assessing the defendant's claim, it is not necessary for us to determine the scope of the sequestration order in effect at the time of the alleged violation. The state's conduct in providing witnesses barred from the courtroom during Pincus' testimony with a verbatim transcript of that testimony was a clear violation of any sequestration order, narrow or broad, and the trial court erred in finding otherwise. This court has asserted that "`[t]he obvious purpose of sequestering a witness while another is giving his testimony is to prevent the one sequestered from shaping his testimony to corroborate
The remedy for such a violation rests in the trial court's discretion, guided by a primary concern for "the fairness of the trial, not the culpability of the prosecution." Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L. Ed.2d 78 (1982); State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d. 1320 (1982). Although in the present case the trial court's remedial measures neutralized any prejudice to the defendant and rendered the error harmless, the state should not in a new trial be encouraged to rely on such subsequent correctives to cure its violation. Should the trial court again impose a sequestration order which "merely prohibits a sequestered witness from being in the courtroom when he is not testifying"; State v. Williams, supra, 331; General Statutes § 54-85a; that order cannot be
The defendant finally challenges the trial court's refusal to honor his request to instruct the jury that manslaughter in the second degree and criminally negligent homicide were lesser included offenses.
Under General Statutes § 53a-45, the "jury before which any person indicted for murder is tried may find him guilty of homicide in a lesser degree than that charged." Whether an accused may avail himself of this statutory privilege by means of a jury instruction is governed by the principles set forth in State v. Rodriguez, 180 Conn. 382, 399-400, 429 A.2d 919 (1980), and State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), and summarized in State v. Maselli, 182 Conn. 66, 72, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 868, 66 L. Ed 2d 807 (1981): "In view of General Statutes § 53a-45 (c), which allows a defendant indicted for murder to be found guilty of homicide in a lesser degree than that charged, it is clear that any lesser
The crucial element distinguishing manslaughter in the second degree and criminally negligent homicide from murder and manslaughter in the first degree is intent, "often the most significant and, at the same time, the most elusive element of the crime charged." State v. Rodriguez, supra, 404. If, based on the admissible evidence presented at trial, the jury could reasonably have found that the defendant acted either recklessly or with criminal negligence in causing the victim's death, then the defendant was entitled to the charge requested.
At trial the state's chief medical examiner testified that, based on the dirt in the victim's mouth and
There is error in part, the judgment is set aside and a new trial is ordered.
In this opinion SPEZIALE, C. J., and ARMENTANO, J., concurred.
In this opinion HEALEY, J., concurred.
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