Opinion
No. HHB-CR06-0226416-T
July 24, 2007
MEMORANDUM OF DECISION MOTION TO SUPPRESS CUSTODIAL STATEMENTS
I PROCEDURAL BACKGROUND
The defendant, Rodney Hankerson, has filed a motion to suppress oral and written statements made in New York and Connecticut.
The defendant's motion is made pursuant to the fifth, sixth and fourteenth amendments to the constitution of the United States, article first, § 8 of the constitution of Connecticut, Miranda v. Arizona, 384 U.S. 436 (1966), General Statutes §§ 54-1f, 7-310, 29-164f and 29-1b, et seq., and Practice Book § 41-12.
The defendant contends that the statements, if they were made, should be suppressed because: (1) they were obtained without an adequate advisement and waiver of his rights under Miranda v. Arizona ( supra), and (2) the New Britain police officers had no extra-jurisdictional authority to conduct custodial interrogations in New York.
In his March 19, 2007 supplemental memorandum of law, the defendant also asserts additional bases for suppression. Those bases are that interrogations of the defendant occurred without counsel after the initiation of adversary judicial proceedings, and that the failure of the New Britain police to record the defendant's statements prevents the defendant from offering evidence in context pursuant to Connecticut Code of Evidence § 1-5.
The defendant filed a memorandum of law in support of his motion on March 5, 2007, and he filed the supplemental memorandum of law on March 19, 2007. The state filed a memorandum in opposition to the motion to suppress on March 26, 2007.
The Court conducted a hearing on this motion on March 15 and 16, 2007. At that hearing, the Court received testimonial evidence from New Britain Police Detective Thomas Gray and Detective Jonathan Webster, and other evidence.
II FACTS
Based upon the information in this matter, on or about September 24, 2005, police responded to 151 Dean Drive in New Britain, and found Luis Bruno, also known as Luis Baez, in serious medical condition. The state alleges that the death of Mr. Bruno occurred during the commission of and in furtherance of a robbery.
At the hearing, limited information was presented as to the events that led to the questioning by New Britain police of Rodney Hankerson, and if he made a statement, or what he said in response to the police questioning of him.
A warrant for Rodney Hankerson's arrest was signed on October 8, 2005, charging him with, among other crimes, felony murder. The defendant was detained presumably with fugitive proceedings pending in Yonkers, New York on October 9, 2005. New Britain Police Detective Thomas Gray went to Yonkers, New York on October 9, 2005, and spoke to the defendant about the September 24, 2005 incident.
On February 9, 2006, Detective Jonathan Webster and Detective Raymond Grzegoezek went to Yonkers, New York in possession of a Governor's warrant and the arrest warrant for the September 24, 2005 incident. These detectives took custody of the defendant and transported him to New Britain. Once at the New Britain Police Department, Detective Webster interviewed the defendant.
The defendant was arraigned in the New Britain Judicial District courthouse on February 10, 2006.
The defendant's motion is to suppress statements that resulted from the October 9, 2005 interview in Yonkers, and the February 9, 2006 interview in New Britain. The defense did not offer any specifically claimed statements that were made by the defendant as part of their motion hearing litigation strategy.
The Court, for the purpose of clarity of its ruling, will refer to the statements as the "Yonkers statement" and the "New Britain statement."
III ISSUES PRESENTED A. Jurisdictional Authority of the New Britain Police Officers
The defendant contends that the New Britain police detectives were acting outside of their jurisdiction and were, therefore, without authority to question him in Yonkers, New York. Specifically, the defendant points to General Statutes § 54-1f(c):
Members of any local police department or Office of State Capitol Police and constables and state marshals . . . who perform criminal law enforcement duties, when in immediate pursuit of one who may be arrested under the provisions of this section [without a warrant], are authorized to pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest.
The defendant also cites in support of his motion General Statutes §§ 7-310 and 7-313a, which address fire personnel's ability to assist in other towns, General Statutes § 29-164f, which authorizes the exchange and sharing of information among various state and federal police agencies, and the various state statutes that concern the state police. The defendant interprets these statutes as limiting the police and fire department powers to those areas indicated by statute.
From all these statutory references, the defendant argues that there is no specific statutory authority given to municipal police personnel to investigate in other towns or states criminal activity that occurred in their towns.
The defendant contends that since there is no statutory authority given to the New Britain police to conduct criminal investigations in other states, the defendant's "Yonkers" statement to Detective Gray should be suppressed.
The testimony at the hearing indicated that New Britain Detective Thomas Gray was investigating a felony murder which occurred in New Britain. On October 9, 2005, Detective Gray went to Yonkers to speak to the defendant. The defendant was in custody with the Yonkers police. He was already detained by members of the Yonkers police force.
There has been no evidence presented by the defendant challenging the legality of his detention — rather, the defendant challenges the authority and the actions of the New Britain Police Department.
The argument of the defendant lacks common law support. The statutory references do not address this police conduct. Recently, the Connecticut Supreme Court had an opportunity to address this situation. In State v. Stenner, 281 Conn. 742 (2007), the New Britain police conducted interviews of the defendant while he was in other states. However, the defendant did not raise that issue and the Supreme Court chose not to address it. However, the argument of the defendant that "it just wasn't raised" is hollow when the Supreme Court is reviewing a murder conviction.
This Court disagrees with the defendant's position that police officers engaging in an ongoing criminal investigation are not at liberty to conduct inquiries outside their territorial jurisdiction. Such a concept would be the antithesis of policing and contrary to the public interest. People v. Mitchell, 283 A.D.2d 769, 771 (3rd Dept.), cert. denied, 97 N.Y.2d 4 (2001).
Since this is a motion to suppress a statement, it thus involves the use of the exclusionary rule. The United States Supreme Court recently addressed the use of the exclusionary rule in Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006):
"Under our domestic law, the exclusionary rule is not a remedy [lightly applied]. [The Supreme Court has] repeatedly emphasized that the rule's `costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging application of the rule. Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 364-65, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998). Because the rule's social costs are considerable, suppression is warranted only where the rule's `remedial objectives are thought most efficaciously served.' United States v. Leon, 468 U.S. 897, 908, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974))." (Internal quotation marks omitted.) Sanchez-Llamas v. Oregon, supra, 126 S.Ct. 2680.
"[The Supreme Court has] applied the exclusionary rule primarily to deter constitutional violations. In particular, [the Court has] ruled that the Constitution requires the exclusion of evidence obtained by certain violations of the Fourth Amendment, see Taylor v. Alabama, 457 U.S. 687, 694, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982) (arrests in violation of the Fourth Amendment); Mapp v. Ohio, 367 U.S. 643, 655-57, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (unconstitutional searches and seizures), and confessions exacted by police in violation of the right against compelled self-incrimination or due process, see Dickerson, 530 U.S. [428, 435], 120 S.Ct. 2326, 147 L.Ed.2d 405 [(2000)] (failure to give Miranda warnings); Payne v. Arkansas, 356 U.S. 560, 568, S.Ct. 844, 2 L.Ed.2d 975 (1958) (involuntary confessions)." Sanchez-Llamas v. Oregon, supra, 126 S.Ct. 2680.
In a few cases, the Court has suppressed evidence for statutory violations. "In those cases, the excluded evidence arose directly out of statutory violations that implicated important Fourth and Fifth Amendment interests. McNabb [v. United States, 318 U.S. 332 (1943)], for example, involved the suppression of incriminating statements obtained during a prolonged detention of the defendants, in violation of a statute requiring persons arrested without a warrant to be promptly presented to a judicial officer. [The Supreme Court] noted that the statutory right was intended to `avoid all the evil implications of secret interrogation of persons accused of crime,' 318 U.S., at 344, 63 S.Ct. 608, 87 L.Ed. 819, and later stated that McNabb was `responsive to the same considerations of Fifth amendment policy that . . . face[d] [the Court] . . . as to the states' in Miranda, 384 U.S., at 463, 86 S.Ct. 1602, 16 L.Ed.2d 694. Similarly, in Miller [v. United States, 357 U.S. 301 (1958), the Court] required suppression of evidence that was the product of a search incident to an unlawful arrest. 357 U.S., at 305, 78 S.Ct. 1190, 2 L.Ed.2d 1332; see California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 113 L.Ed.2d (1991) (We have long understood that the Fourth Amendment's protection against unreasonable . . . seizures includes seizure of the person)." (Internal quotation marks omitted.) Sanchez-Llamas v. Oregon, supra, 126 S.Ct. 2681.
Therefore, the claim of the defendant lacks legal support. Assuming that this argument had merit, it does not rise to a constitutional violation where the exclusionary rule would be appropriate.
Therefore, the defendant's motion to suppress on this basis is denied.
B. Failure to Follow the Authority of Arizona v. Miranda
The defendant's second claim is that both his New York statement and the New Britain statement should be suppressed because of the improper procedure of providing the Miranda warnings and waiver.
The state does not contest the fact that the defendant was in custody both in Yonkers, New York and in New Britain, Connecticut. Therefore, the Court reviews whether the defendant was given his Miranda warnings and whether he waived them knowingly and voluntarily.
The Yonkers, New York Interview (Waiver)
The testimony presented at the hearing indicated that on October 9, 2005 Detective Thomas Gray went to New York to interview Rodney Hankerson. The defendant was in custody at the Yonkers Police Department. No Yonkers police were present with the defendant and Detective Gray during the interview. New Britain Police Detective Kilduff was present.
Detective Gray testified that he read the Miranda warnings to the defendant from a card. The card was given to him by the Yonkers police. After reading the card, the defendant was asked if he understood those rights. Detective Gray said that the defendant responded "yes." The defendant did sign the card. (Def. Ex. A) Detective Gray testified that he asked him about his educational level and whether he could read and write in English. Detective Gray testified that he also asked the defendant to explain his rights to him. Detective Gray testified that the defendant explained the rights and that he understood them. The defendant signed the Miranda card and proceeded to speak with Detective Gray.
The defendant did not give a written statement.
The testimony of Detective Gray was that the defendant stated that he came to Connecticut with "GQ" and "Waldo," he remembers CVS and remembers the pizza place.
At that point, Detective Gray testified that the defendant initiated his right to counsel, and the questioning ceased. Based on the testimony which the Court finds credible, and exhibits presented, the Court finds that in the Yonkers interview, the defendant was advised of his Miranda rights.
"Pursuant to the fifth and fourteenth amendments to the United States constitution, a statement made by a defendant during custodial interrogation is admissible only upon proof that he . . . waived his rights [under Miranda] . . . To be valid, a waiver must be voluntary, knowing and intelligent . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case." State v. Bell, 93 Conn.App. 650, 665, cert. denied, 277 Conn. 933 (2006); see State v. Lawrence, 282 Conn. 141, 158-77 (2007).
"Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant's experience with the police and familiarity with the warnings . . . his level of intelligence, including his IQ . . . his age . . . his level of education . . . his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication . . . his emotional state . . . and the existence of any mental disease, disorder or retardation. Furthermore, [a] defendant's express written and oral waiver is strong proof that the waiver is valid." (Internal quotation marks omitted.) State v. Bell, supra, 93 Conn.App. 666.
The Court considers these factors in determining whether the defendant has knowingly and intelligently waived his rights under Miranda.
The Defendant's Intelligence
The evidence at the hearing indicates that the defendant had a high school education. From the testimony provided, it did not appear to Detective Gray that the defendant had any difficulty understanding or speaking the English language. The defendant said that he understood the rights. 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 judgment.
The Defendant's Age
It is apparent that at the time of the statement the defendant was an adult.
The Defendant's Education CT Page 12904
The evidence indicates that the defendant had a high school education.The Defendant's General Physical, Mental and Emotional State
There is no evidence that the defendant was upset. There is no testimony about any display of emotion. The evidence establishes that the defendant was in full possession of his faculties when he decided to talk. Nothing in the record indicates that the 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.
"The state must also prove by a fair preponderance of the evidence that the defendant's waiver of his rights was voluntary . . . A statement is voluntary if it is the product of an essentially free and unconstrained choice by its maker . . . [I]f it is, if he has willed to [make a statement], 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 [statement] offends due process." (Citations omitted; internal quotation marks omitted.) State v. Fernandez, 52 Conn.App. 599, 612-13, cert. denied, 249 Conn. 913, and cert. denied, 528 U.S. 939 (1999).
Considering the totality of the circumstances, there is no evidence that the defendant's decision to waive his rights and talk to Detective Gray 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 the defendant acted under duress, or that the 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 the defendant of what he was doing, or the legal consequences of his actions. At some point, the defendant indicated a desire to speak to a lawyer and the conversation with Detective Gray ceased. 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 the defendant ask for clarification or explanation of what was occurring.
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 questioning in Yonkers, New York.
Connecticut Interview (Waiver)
In assessing this interview, the Court considers the legal basis previously stated.
The testimony presented is that on February 9, 2006, the defendant was transported to the New Britain Police Department. The transportation took place with a prisoner transport van. The defendant was in the back, in handcuffs and leg irons. The testimony presented was that there were no discussions between the defendant and the police during this transport. Once in New Britain, the testimony was that the defendant was brought to the second floor detective office and then to an interview room, which was described as 5' x 6' or 7'. The room was cinder block with table and chairs and a mirror. The defendant remained in that room for about half an hour before discussions commenced.
The interview started at or about 3:10 A.M. The defendant asked for and received soda and "chips," and a bathroom break. The defendant said he wished to talk about the incident. However, after having contact with a lawyer in New York, he said he would give a limited interview. The testimony was that Detective Webster gave him his Miranda rights with the notice of rights form. (Def.'s Ex. C.) The detective recalled the defendant from the New York meeting, and recalled his educational background. The detective testified that he read his rights to him. Then he asked the defendant if he understood those rights, and if the defendant wished to speak to him, which the defendant said he did. The defendant and Detective Webster signed the form. The interview lasted about three hours.
After some time in the interview room, Detective Webster went to retrieve his laptop. Detective Webster testified that he taped a statement utilizing a question and answer procedure. Detective Webster testified that he did not let the defendant read the statement on the screen, but rather, in a written form. After review, the defendant signed the statement. It was also signed by Detective Webster. (See Statement, Defendants Ex. B.)
Detective Webster testified that the defendant said he would not talk about what happened at 151 Dean Drive. The defendant wanted to speak to an attorney before talking about the incident. Detective Webster testified that he honored that request.
The Court finds, after consideration of the testimony, and other evidence presented at the hearing that the defendant was given his CT Page 12906 Miranda warnings.
The Court further considers the evidence presented at the hearing and the law previously indicated for a waiver of those rights.
The Court considers the evidence concerning the defendant's age, his intelligence, his education, his general physical and emotional state, and his prior experience with the police and familiarity with the warnings.
Although much of this consideration concerns the Connecticut statement, the testimony and evidence is consistent with the evidence and testimony given describing the defendant at the Yonkers police station.
The Court finds that the state has sustained its burden of establishing the rights given and a waiver of those rights.
Considering the totality of the circumstances, there is no evidence that the defendant's decision to waive his rights and talk to his questioner in New Britain was anything other than the result of his free, considered, and unconstrained choice. There is no evidence that his will was overborne. The defendant expressed a knowledge of the legal process, indicating who he would and would not talk to the police about. He also indicated that he had been in contact with an attorney.
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 questioning in New Britain, Connecticut.
C. Sixth Amendment Right to Counsel
The defendant asserts that his sixth amendment rights attached at the time of the signing of the information by a prosecutor. He also asserts that his right to counsel attached upon initiation of the extradition process.
The information charging the defendant with crimes from the September 24, 2005 incident was signed by the prosecutor as part of the arrest warrant application on October 8, 2005. The arrest warrant was signed by a judge of the Superior Court on that same day. The defendant was served with the arrest warrant on February 9, 2006, and was arraigned on February 10, 2006.
The testimony establishes that both the Yonkers and New Britain interviews of the defendant occurred prior to the arraignment of the defendant.
Under our law, the sixth amendment right to counsel does not attach until the initiation of formal adversary proceedings. Kirby v. Illinois, 406 U.S. 682, 689 (1972); State v. Stenner, 281 Conn. 742, 764 (2007). It does not attach when the information is signed. State v. Pierre, 277 Conn. 42, 89-90, cert. denied, 126 S.Ct. 2873 (2006). Under state and federal law, the right to counsel attaches at the time of arraignment. State v. Stenner, supra, 766. The Court considered whether the extradition proceeding triggers so critical a confrontation between an accused and a prosecutor, that counsel is constitutionally required for that reason alone. However, the hearing at which the defendant was presented for extradition is not akin to an arraignment, at which he would have been entitled to counsel. Hamilton v. Alabama, 368 U.S. 52, 54-55 (1961); State v. Falcon, 196 Conn. 557, 563-65 (1985).
Therefore, because the statements were taken prior to the commencement of adversary judicial criminal proceedings, the motion to suppress oral and written statements on this ground is denied.
D. Connecticut Code of Evidence Section 1-5
The defendant's next claim is that the statements should be suppressed because they were not memorialized by video or recording and, therefore, the defendant is unable to put in other portions of the statement for purposes of completeness.
This basis is inappropriate for a motion to suppress statements. See Sanchez-Llamas v. Oregon, supra, 126 S.Ct. 2680-81 (exclusionary rule primarily applied to deter constitutional violations).
Additionally, the Connecticut practice and supporting case law at this time does not require the recording of statements. State v. James, 237 Conn. 390, 434 (1996).
The Connecticut Code of Evidence commentary defines "statement" as including recorded and oral statements. To read § 1-5 without reviewing the commentary does not allow for the understanding of the full intent of this section. Oral unrecorded statements clearly are intended to come within the purview of § 1-5. Therefore, § 1-5 cannot be used as a basis to suppress a statement on the ground that it is oral and not recorded.
If one were to carry out the logic of the defendant's argument, then there would be no ability to offer an unrecorded oral statement of a defendant if a witness on the stand does not remember every word of an entire conversation. There is a remedy for the defendant — cross-examination to test the memory and credibility of the witness. Lack of memory may affect credibility.
The motion to suppress the statements of the defendant on this basis is denied.
Therefore, for all the reasons set forth, the motion to suppress the defendant's statements is denied.