Opinion
No. HHB-CR1002513305-T
October 11, 2011
MEMORANDUM OF DECISION RE MOTION TO SUPPRESS
On February 9, 2010, the defendant, Terry Herring (hereinafter "Herring" or "defendant"), was arrested and charged with possession of more than a kilogram of marijuana with intent to sell or dispense in violation of Conn. Gen. Stat. § 21a-278(b). On June 24, 2011, the defendant moved to suppress a written signed statement he made to the police claiming that the statement was not knowing, intelligent, and voluntary and thus a violation of due process.
PROCEDURAL BACKGROUND
On September 30, 2011, the court conducted an evidentiary hearing on the defendant's motion to suppress. The court heard the testimony of Officer Farrell, Officer Lopa, Officer Anderson, Officer Balizi and Special Agent Buckles, who were all involved in the controlled delivery that resulted in the defendant's arrest. The court continued the hearing to October 5, 2011, to hear the oral argument of the parties.
FINDINGS OF FACT
The court finds the following facts by a fair preponderance of the evidence. On February 9, 2010, officers of the New Britain police in collaboration with agents from the Drug Enforcement Agency ("DEA") were conducting surveillance on defendant's home in anticipation of a controlled delivery of a large amount of marijuana. Officers began surveillance of the defendant's home at approximately 9:00 a.m. Officers noticed a male, later identified as the defendant, sitting in his vehicle some distance away from the home and further down the street. Based on their experience and training, the officers believed the individual was conducting surveillance on the home where the controlled delivery was expected.
At approximately 12:00 p.m., two officers, dressed in plain clothes and in an unmarked vehicle, intentionally drove over a "garage" sign that was located in front of the home to see if the defendant would react. The defendant ran to the front of the house and appeared to be yelling at the officers and replacing the sign in front of his home. At approximately 2:00 p.m., a truck pulled up in front of the house and the driver opened the back of the truck. The defendant along with a co-defendant were observed helping to remove a crate from the truck and pushing it towards the garage. The defendant was arrested on the scene.
At the scene, Officer Farrell advised the defendant of his rights prescribed in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Using an advisement of rights card, he paused after reading each right and asked the defendant if he understood and the defendant responded affirmatively in each instance. At the end of the advisement, Officer Farrell asked the defendant if he understood his rights to which he replied "I understand I can talk if I want to but I don't have to." The defendant also signed a written consent to search his home. The defendant was then escorted to the back porch where he waited with Officer Lopa until the house could be searched.
While inside his home, the defendant was advised again of his Miranda rights by Officer Lopa. Using an advisement of rights form, Officer Lopa showed him the form and read each of the six sentences, pausing at the end of each to ask the defendant if he understood. At approximately 3:13 p.m., the defendant indicated that he understood each right, and he reviewed and signed the notice of rights form. Thereafter, the defendant was transported to the police station for processing.
At the station, the defendant was processed and placed in a separate interview room. At approximately 3:30 or 3:40 p.m., Special Agent Buckles of the DEA began to interview the defendant. He spent the first ten to fifteen minutes trying to calm the defendant who was crying. Agent Buckles then spoke to the defendant about his role and involvement in the incident. While they spoke, Agent Buckles took notes on a New Britain Police Department interview pad that was located in the room. He described them as bullet notes that he took for his use only. After speaking with the defendant, Agent Buckles spoke with Officer Balizi, who instructed him to return to the room with Officer Anderson to take a formal statement from the defendant. Officer Anderson was asked to assist Agent Buckles because Agent Buckles could not type due to a prior injury and surgery of his hand.
Upon returning to the interview room at approximately 4:17 p.m., Agent Buckles, relying on his notes, went over the information that the defendant provided while Officer Anderson typed the statement. As Officer Anderson typed each sentence, he would read it out loud to the defendant. Once the statement was completed, the defendant was asked to review it on the computer screen. The defendant made only one correction to the statement which was to include in the second paragraph that he was to receive an "engine crate." At approximately 4:41 p.m., the statement was completed and printed by Officer Anderson. Both Officer Anderson and Agent Buckles reviewed the printed statement with the defendant. He was handed the printed copy and given an opportunity to read it before he signed it.
Throughout this process, the defendant was calm and cooperative. While the defendant was upset about being arrested, he remained alert and coherent. He did not have any difficulty communicating with the officers and did not appear to be under the influence of drugs or alcohol. He never asked to speak with counsel or to cease the interview.
DISCUSSION
Our Supreme Court has recently reiterated the well established principle "that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination. Miranda v. Arizona, [ supra, 384 U.S. 444] ." State v. Edwards, 299 Conn. 419, 426, 11 A.3d 116 (2011) (citations omitted). To invoke the Miranda warnings, the defendant must be in custody and subject to interrogation. State v. Canady, 297 Conn. 322, 335, 998 A.2d 1135 (2010). In this case, the state concedes that the defendant was in custody and subject to interrogation when he made his statement.
In making the claim that his statement was not voluntary, knowing and intelligent, the defendant does not argue that the officers failed to advise him of his Miranda rights. Rather, he claims that he did not review the typewritten statement before he signed it because he incorrectly thought the typed statement accurately reflected a handwritten statement he had previously reviewed and signed. Specifically, he claims that he had signed an earlier handwritten statement, namely the handwritten notes taken by Agent Buckles. He further claims that he has made a request for the handwritten statement and the state has failed to produce it.
To establish a valid waiver, the state must prove the voluntariness of the challenged statement by a preponderance of the evidence. State v. Lawrence, 282 Conn. 141, 177, 920 A.2d 236 (2007); see also State v. James, 237 Conn. 390, 412-26, 678 A.2d 1338 (1996); State v. Gonzalez, 206 Conn. 213, 217, 537 A.2d 460 (1988); State v. Perry, 195 Conn. 505, 516, 488 A.2d 1256 (1985). "The test of voluntariness is whether an examination of all the circumstances shows that the conduct of police was such as to overbear the defendant's will to resist and bring about a confession, not freely self determined." State v. Perry, supra at 516. There are several factors the court can consider in determining the voluntariness of the statement including: the defendant's age, level of education, intelligence, experience with police, familiarity with the warnings, vocabulary and ability to read or write, level of intoxication and the conditions under which the defendant was questioned. See State v. Edwards, supra at 442 n. 19; State v. Chung, 202 Conn. 39, 49, 519 A.2d 1175 (1987).
Applying the factors to the circumstances of this case, leads this court to the conclusion that the state has proven by a fair preponderance of the evidence that the defendant knowingly, intelligently and voluntarily waived his Miranda rights. The defendant, who was 53 years old at the time, was questioned for less than one hour. Prior to being questioned, both officer Lopa and later Agent Buckles spoke with him to calm him down. He was given the Miranda warnings twice by two separate officers and responded that he understood his rights. He also indicated that he understood he had a choice of whether to talk. There is no indication that he did not understand or could not read English. In fact, the evidence suggests he read the statement and made a correction to it by insisting that the officers add the words "engine crate" to the second paragraph of his statement. He was calm, coherent, cooperative and did not appear to be under the influence of drugs or alcohol.
Defendant also claims that the existence of a typo in the last paragraph of the typewritten statement which reads "and shit the garage door" instead of "shut" is proof that the defendant and the officers did not read the statement. However, typographical errors in witness and police statements are not uncommon. The defendant does not deny that he signed the statement. The court credits the testimony of the officers when confronted with the typographical error that they missed it when reviewing the statement.
The defendant argues that the inconsistencies in the officers' testimony supports a finding that the statement was not voluntary. Specifically, defendant pointed to two inconsistencies: 1) Officer Farrell and Officer Lopa gave different estimates of their distance from the defendant's home when they were conducting surveillance prior to the delivery; and 2) Agent Buckles and Officer Anderson disagreed as to whether the defendant could view the computer screen while Officer Anderson typed the statement. As to the latter, a review of the record indicates no such inconsistency exists. Rather, both Agent Buckles and Officer Anderson consistently testified that the defendant could view the computer screen but they were not certain if he could actually read the statement from his location in the room. As to the apparent inconsistency in the distance between the defendant's home and the surveillance area, Officer Farrell estimated about 1/2 mile and Officer Lopa determined, from his experience as a football player, that it was 50 to 75 yards. Both officers were giving estimates and the discrepancy, if any, is insignificant.
Nor is there any evidence to support a finding that the defendant provided a signed handwritten statement. The only claim that such a statement exists is based entirely on an attorney proffer. While Agent Buckles acknowledged taking notes when he spoke with the defendant, they were intended for his use only and to assist him in the interview process. There is no evidence to suggest the defendant reviewed, adopted or signed those notes. The notes do not constitute a statement as set forth in Practice Book § 40-15. See State v. Belle, 215 Conn. 257, 267, 576 A.2d 139 (1990) (officer's notes of interview with alleged victims are not statements if not reviewed, signed or adopted by the witness); see also State v. Mitchell, 108 Conn.App. 388, 408-9, 948 A.2d 335 (2008); cf. State v. Mancinone, 15 Conn.App. 251, 262, 545 A.2d 1131 (1988) (where notes are a substantially verbatim recital of an oral statement then the notes constitute a statement).
Further, the notes were memorialized in the typewritten statement and as such are not required to be produced. See State v. Belle, supra at 267 (officer's notes were otherwise incorporated into the final police report). Both Agent Buckles and Officer Anderson testified that the information contained in Agent Buckles' notes was used as a guideline to go over the statements that the defendant had made orally to Agent Buckles. The fact that Agent Buckles used his notes as a guideline to go over the statements the defendant had given prior to Officer Anderson's arrival, does not lead to the conclusion that the defendant adopted Agent Buckles' notes as his own statement. See State v. Myers, 193 Conn. 457, 471, 479 A.2d 199 (1984) ("Fact that victim verified the general accuracy of the [suspect's] description [does not] justify the conclusion that she adopted the officer's notes as her own written statement"). Simply stated, there is no evidence to support a finding that the defendant gave a prior handwritten statement or that the failure to produce Agent Buckles' notes warrants suppression of defendant's knowing, intelligent and voluntary signed statement.
Defendant claims that despite a request to produce the hand written statement, the state failed to produce it in a timely manner. The state acknowledged receipt of a written request and noted that it had replied in writing to counsel that no handwritten statement existed. In the letter, the state notified counsel that Agent Buckles had taken some handwritten notes but due to an injury, the defendant's statement was typed by Officer Anderson. At the hearing, Agent Buckles indicated he had left his notes at the police station. Officer Balizi, who was responsible for the file, testified that, when asked a few weeks earlier, he could not locate Agent Buckles' notes. As the court noted at the hearing, the absence of Agent Buckles' notes goes to weight not admissibility. Defendant's counsel noted that his client intends to take the stand at trial and testify that he reviewed and signed Agent Buckles' handwritten notes which was different from the typewritten statement. The defendant will be permitted to cross-examine the officers about the missing notes and both parties can argue its significance to the jury. See State v. Mitchell, 108 Conn.App. 388, 407, 948 A.2d 335 (2008) (officer's notes did not qualify as statements).
In sum, the defendant's motion to suppress lacks merit and is denied.