Opinion
No. CR 97-262883
June 29, 2005
MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION TO SUPPRESS
This is a capital felony case in which the defendant, Todd Rizzo, moves to suppress all of the written and oral statements he made to the police, as well as all physical evidence seized as the fruits of the written and oral statements. The defendant also seeks to suppress his written confession because the "original" statement has been lost.
The defendant pleaded guilty to murder in violation of Conn. Gen. Stat. § 53a-54a(a), and to capital felony in violation of Conn. Gen. Stat. § 53a-54b(9) (Rev. to 2001). In the penalty phase of the proceedings, a jury found that the state had proved an aggravating factor, the defendant had proved a mitigating factor or factors, and the aggravating factor outweighed the mitigating factor or factors. Accordingly, a sentence of death was imposed by the Court.
The Supreme Court reversed the sentence of death and remanded the case for a new penalty phase hearing. State. v. Rizzo, 266 Conn. 171, 833 A.2d 363 (2003). On remand, the defendant waived his right to have the penalty phase hearing conducted before a jury and instead has elected it to be heard before a three-judge panel.
Specifically, on May 4, 2005, the defendant moved to suppress: (1) any and all oral statements he made to the police on October 1, 1997, and October 2, 1997; and (2) a written confession he gave at the Waterbury police station. The defendant also moves to suppress the following items of physical evidence seized as fruits of the written and oral statements; (1) the victim's bicycle that the police seized from Fulkerson Drive; (2) a drilling hammer; (3) a bloody shirt; (4) two plastic bags that the police seized from the defendant's workplace; (5) the defendant's jeans and boots (6); a flashlight, kitchen bags, and video tapes; (7) a blood stained masonite cover from the defendant's automobile; (8) a mental health evaluation; (9) the defendant's original orders from the United States Marines; and (10) a time card and a letter that the police seized from the defendant's home and vehicle.
The defendant asserts in this motion that the oral and written statements he made to the Waterbury Police Department, and the physical evidence obtained as a result of these statements, were obtained in violation of his rights under the fourth, fifth, sixth, eighth, and fourteenth amendments to the United States constitution and the constitution of Connecticut, article first, § 7, § 8, and § 9.
The fourth amendment to the United States constitution provides: "The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."
The fifth amendment to the United States constitution provides: "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation."
The sixth amendment to the United States constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."
The eighth amendment to the United States constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
The fourteenth amendment to the United States constitution provides, in relevant part, that: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The constitution of Connecticut, article first, § 7, provides: "The people shall be secure in their persons, houses, papers, and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation."
The constitution of Connecticut, article first, § 8, provides: "In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witness against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger."
The constitution of Connecticut, article first, § 9, provides: "No person shall be arrested, detained or punished, except in cases clearly warranted by law."
In addition, the defendant asserts that he did not consent to a warrantless search of his home and automobile. Finally, he asserts that his state constitutional right to due process requires that this Court suppress his written confession because the original has been lost and the State intends to introduce a "copy" of the statement at the penalty phase hearing. Similarly, he argues, as an evidentiary matter, that the copy of the written statement must be excluded pursuant to the best evidence rule, as set forth in § 10-1 of the Connecticut Code of Evidence.
Connecticut Code of Evidence § 10-1 provides: "To prove the content of a writing, recording or photograph, the original writing, recording or photograph must be admitted into evidence, except as otherwise provided by the Code, the General Statutes or the Practice Book."
The Court heard testimony and argument on this matter on May 10th and 11th, 2005. For the reasons set forth below, the defendant's motion to suppress is denied.
The defendant also filed a motion to suppress dated March 7, 2005. Because the State indicated that it was not going to offer at trial the evidence sought to be suppressed in the defendant's March 7th motion, I do not address that motion here.
The Court issued an oral decision on this motion on May 13, 2005. At that time, the Court indicate that it would issue a full written decision in due course, which it does so today.
I. FACTS
The Court finds the following facts by a fair preponderance of the evidence. During the evening of September 30, 1997, the defendant murdered the victim, then age thirteen, at the defendant's home in Waterbury, located at 15 Marion Ave. He did this by luring the victim into the backyard of the home, where he bludgeoned the victim to death by repeated blows to the head with a three-pound sledgehammer.
The following day, October 1, 1997, the Waterbury Police Department developed information potentially linking the defendant to the murder. At approximately 4:00 p.m., officers from the Waterbury Police Department went to Marion Ave. to conduct a surveillance of the defendant's home and await his return home from work. During this surveillance, two officers, Sergeant Eugene Coyle and Detective Clement Shagensky, waited at one end of Marion Ave., dressed in plainclothes in an unmarked police car. Two other officers from the Waterbury Police Department were placed inside a house across the street from the defendant's home. Several members of the Waterbury Police Department's Gang Task Force were stationed at the other end of Marion Ave. These officers were dressed in police uniforms.
At approximately 5:00 p.m., the defendant arrived at his residence driving a red Isuzu Impulse passenger car. Before the defendant entered his home, the defendant was approached by Detectives Coyle and Shagensky. The members of the Gang Task Force also approached the defendant at about the same time. Coyle asked the defendant if he would be willing to go to the police station and answer some questions regarding the murder of the victim. None of the officers had their weapons drawn and the police would have let him leave if he had so requested. The defendant agreed to accompany them to the police station.
The defendant got into Detective Coyle's car and sat alone in the backseat. He was not handcuffed. Detective Coyle drove, and Det. Shagensky rode in the front passenger seat.
At the police station, the defendant was placed in an office and was questioned by three Waterbury Police officers. Before the questioning began. Det. Coyle orally advised the defendant of his Miranda rights by reading him the required Miranda warnings from an advisement of rights card. The defendant, who had completed high school, indicated that he was able to read and write in the English language. The defendant was then handed the card and he read the rights aloud. At this time, he indicated that he understood his rights and he signed and dated the card. The defendant also wrote on the card the approximate time that he was read his rights, which was 6:00 p.m. Mr. Rizzo then orally indicated that he was willing to waive his rights and speak with the detectives. He did not request the assistance of a lawyer.
For several minutes thereafter, the detectives questioned him about the murder of the victim. The defendant denied any knowledge of the murder or that he knew the victim. Detective Coyle told the defendant that he would like to take a look around his house and look inside his car. The defendant then orally consented to a search of his house and car. The defendant was handed a consent to search form. The form identified the house and car the police sought to search and the police's legal obligation to obtain a search warrant if he was unwilling to consent to the search. The defendant checked the appropriate boxes on the form indicating that he was willing to consent to the search of his home and automobile. The defendant signed and dated the form and also indicated the approximate time, 6:00 p.m. The Court recognizes that this time is not precise, but does not credit the defendant's assertion that the consent was not given until approximately 8:00 p.m.
Several police officers and the defendant then returned to the defendant's house, arriving approximately at 6:45 p.m. Sergeant Gary Pelosi began a search of the car, while Detective Coyle, Detective Robert Cammilletti and the defendant entered the house. Detective Pelosi then entered the house and informed Detective Coyle that he had found something in the car. Detective Coyle proceeded to the car where he observed that the rug had been pulled back in the rear portion of the car, revealing a masonite board that appeared to be smeared with blood.
Detective Coyle returned to the house and brought the defendant out to the car. When he showed the defendant the smear on the board and asked him what it was, the defendant said, "I feel sick," and "I did it." The defendant's confession prompted the police, in an abundance of legal caution, to terminate the search of the car and house, and to secure the location until search warrants could be obtained.
Detective Coyle then placed the defendant in the rear seat of a police car and questioned the defendant further about the murder. The defendant then made a series of incriminating comments to Det. Coyle. Detective Coyle, Sergeant Pelosi and the defendant then drove to Fulkerson Drive in Waterbury, where the defendant showed them where he had left the victim's body and bicycle. They then drove to Arett Sales in Cheshire, where the defendant showed them the trash compactor into which he had thrown the sledgehammer and some bloody clothing.
The defendant was subsequently driven to the Waterbury police station, where he arrived at approximately 8:00 p.m. The defendant was again advised of his Miranda rights, and he read, signed and dated a second advisement of rights card. The defendant indicated he understood his rights. He agreed to give and sign a written statement.
The defendant then gave an oral statement, which was typed into a computer by Detective Coyle. The defendant was asked some preliminary questions, which he answered, and then proceeded to give a narrative version of the events in question. This process took approximately one hour.
After the statement had been typed into the computer, the defendant was given an opportunity to read the statement on the monitor and to make any appropriate additions or corrections. The defendant made one minor correction to the statement.
The statement was then printed from the computer onto a pre-printed Waterbury Police Department form, entitled "Voluntary Statement." Each page of the pre-printed form itself contained three pages, separated by carbon paper. The form had to be hand-fed into the printer. The top page of the form was white, with the second and third pages being yellow and pink, respectively. Consequently, each page of the defendant's written four-page statement, once printed, generated a duplicate yellow and pink copy, which could then be separated from the other pages along a perforation at the top of the document. See footnote 12.
The defendant was given an opportunity to read the statement as it had been printed. The defendant read the statement and indicated that he had no additional changes to it. The defendant initialed a series of boxes on the first page of the document, indicating that he understood his rights and that he was waiving his rights voluntarily. By initializing and signing the document, the defendant left corresponding marks on the pink and yellow copies. He also placed his initials at other locations on the document and signed and dated each page. The written statement was notarized by a member of the Waterbury Police Department.
No videotape or electronic recording was made by the Waterbury Police Department of any portion of the interrogation of the defendant or while the written statement was being prepared.
Searches of the house, car and trash compactor, pursuant to search warrants, yielded numerous pieces of physical evidence implicating the defendant in the murder.
On October 2, 1997, Det. Coyle drove the defendant to court for his arraignment. On the way, Coyle asked the defendant why he had murdered the victim. The defendant replied that he just wanted to know what it was like to kill somebody.
Additional facts found by the Court are set forth below where necessary.
II. ANALYSIS A. The defendant was properly Mirandized before giving oral and written Statements to the Waterbury Police Department.
First, the defendant argues that all of the defendant's written and oral statements, as well as any physical evidence seized from his home or vehicle, must be suppressed because it was obtained in violation of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant contends that he (1) was not informed of his Miranda rights, (2) did not validly waive his right to remain silent or his right to an attorney, and (3) invoked his right to counsel. Because of this alleged violation of his Miranda rights, the defendant argues that his statements and the evidence obtained as a result of those statements should be suppressed.
"Any inquiry into the admissibility of a confession obtained while a defendant is in custody must of course begin with Miranda v. Arizona. In that case, the United States Supreme Court held that the fifth and fourteenth amendments' prohibition against compelled self-incrimination requires that a suspect in police custody be informed specifically of his or her right to remain silent and to have an attorney present before being questioned . . . The court further held that [i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease . . . and [i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present . . . Furthermore, [i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." (Citations omitted; internal quotation marks omitted.) State v. Hafford, 252 Conn. 274, 289-90, 746 A.2d 150; cert. denied, 531 U.S. 855, 121 S.Ct. 136, 148 L.Ed.2d 89 (2000).
"Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation." (Internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 757, 670 A.2d 276 (1996). "[A]lthough the circumstances of each case must certainly influence a determination of whether a suspect is in custody for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Further, the United States Supreme Court has adopted an objective, reasonable person test for determining whether a defendant is in custody . . . Thus, in determining whether Miranda rights are required, the only relevant inquiry is whether a reasonable person in the defendant's position would believe that he or she was in police custody of the degree associated with a formal arrest . . ." (Emphasis in original; internal quotation marks omitted.) State v. Turner, 267 Conn. 414, 434, 838 A.2d 947 (2004). "We have . . . defined a person as seized under our state constitution when by means of physical force or a show of authority, his freedom of movement is restrained." (Internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 647, 613 A.2d 1300 (1992).
Under our state constitution, a person is seized only if in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave. "A person is not arrested or seized [however] . . . if he freely chooses to enter into or continue an encounter with the police. United States v. Brunson, 549 F.2d 348, 357 (5th Cir. 1977), cert. denied, 434 U.S. 842, 98 S.Ct. 140, 54 L.Ed.2d 107 (1977). Police officers do not violate an individual's constitutional rights by approaching him, by asking him if he is willing to answer some questions, by putting questions to him if he is willing to listen, or by offering into evidence in a criminal prosecution his voluntary answers to such questions. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); State v. Brown, 199 Conn. 47, 52-53, 505 A.2d 1225 (1986)." State v. Damon, supra, 214 Conn. 153-54. Among the factors that may be considered in determining whether a defendant's encounter with police was consensual in nature are: "the time, place and purpose of the encounter; the words used by the officer; his tone of voice and general demeanor in requesting the defendant to accompany him to the police station; the officer's statements to others who were present during the encounter; the manner in which the defendant was escorted out of the house and transported to the stationhouse; the officer's response to any questions by the defendant . . . regarding the defendant's right to refuse to go to the stationhouse; and the defendant's verbal or non-verbal responses to any directions given to him by the officer." (Internal quotation marks omitted.) State v. James, 237 Conn. 390, 405, 678 A.2d 1338 (1996).
"The defendant bears the burden of proving custodial interrogation." (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 269, 681 A.2d 922 (1996); see also State v. Fernandez, 52 Conn.App. 599, 607, 728 A.2d 1, cert. denied, 249 Conn. 913, 733 A.2d 229, cert. denied, 528 U.S. 939, 120 S.Ct. 348, 145 L.Ed.2d 272 (1999). In this case, the Court finds it unnecessary to decide the question of whether the defendant was in custody prior to his arrival at the Waterbury Police Department at approximately 6 p.m. on the evening of October 1, 1997 because the police did not take any statements, oral or written, from the defendant prior to his arrival at the station.
The Court assumes, without deciding, that the defendant was in custody when he was first brought to the Waterbury Police Department. Consequently, the burden shifts to the State to establish beyond a preponderance of the evidence that the required Miranda warnings were given prior to the police beginning custodial interrogation, the defendant knowingly and intelligently waived those rights, and whether any statements made by the defendant were voluntary. Miranda v. Arizona, supra, 384 U.S. 475; State v. Gray, 200 Conn. 523, 531 (1986); State v. Marshall, 83 Conn.App. 418, 423, 850 A.2d 1066, cert. denied, 271 Conn. 904, 859 A.2d 564 (2004).
Based on the facts found above, the Court concludes that the State has met its burden in this case. The Court finds that the defendant was advised of his rights prior to the beginning of any questioning of the defendant. The police officers credibly testified that they advised the defendant of his rights prior to questioning and there was no credible evidence to rebut that testimony. The Court rejects the defendant's assertion that the he was only first advised of his Miranda rights after he returned to the Waterbury Police Department for a second time on the evening of October 1, 1997 (at approximately 8:00 p.m.).
B. The defendant knowingly and voluntarily waived his Miranda rights before being interrogated.
The Court next turns to the issue of whether the defendant knowingly and voluntarily waived his Miranda rights. In State v. Shifflett, 199 Conn. 718, 508 A.2d 748 (1986), the Connecticut Supreme Court set forth the standard in assessing the voluntariness of the defendant's waiver of his rights under Miranda v. Arizona. "As in every case, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." (Internal quotation marks omitted.) Id., 731. "[W]hile an express written or oral statement of waiver . . . is not inevitably either necessary or sufficient to establish waiver of Miranda rights . . . the state must demonstrate: (1) that the defendant understood his rights, and (2) that the defendant's course of conduct indicated that he did, in fact, waive those rights." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 731-32. "In considering the validity of [a] waiver, we look . . . to the totality of the circumstances of the claimed waiver." (Internal quotation marks omitted.) State v. Hafford, supra, 252 Conn. 295.
In Shifflett, the Supreme Court held that "the defendant's unequivocal understanding that anything he said could be used against him in a subsequent trial coupled with his express agreement to speak with [police], constitute[d] the requisite level of comprehension . . . and the explicitly affirmative act . . . necessary to sustain the trial court's finding that the defendant waived his Miranda rights." (Citations omitted; internal quotation marks omitted.) State v. Shifflett, supra, 199 Conn. 733.
The test of voluntariness is "whether the examination of all of the circumstances discloses that the conduct of law enforcement was such to overbear the defendant's will to resist and bring about confessions not freely determined." State v. Pinder, 250 Conn. 385, 418, 736 A.2d 857 (1999). Factors to consider include the defendant's maturity, education, physical condition and mental health, the lack of any advice as to his constitutional rights, the location and length of the detention, the intensity and prolonged nature of the interrogation, the presence of physical punishment, including the lack of food or sleep. Id. at 419.
Applying these factors, the Court is fully convinced that the defendant's decision to waive his Miranda rights and answer questions posed to him by the Waterbury Police Department statements was voluntary and of his own free will. He verbally indicated he understood his rights. He stated that he could read, write and speak English and that he was a high school graduate. He was adequately informed of the potential consequences of his waiver and he certainly had the mental capacity and maturity to understand the significance of his decision. His consent and waiver is documented and reflected in several documents that he read and signed. As one court has noted, "a defendant's express written and oral waiver is strong proof that the waiver is valid . . ." State v. Perez, 78 Conn.App. 610, 624, 828 A.2d 626 (2003), cert. denied, 271 Conn. 901, 859 A.2d 565 (2004).
Significantly, there was no evidence presented that he was under the influence of any drugs or medications that would indicate he failed to understand what he was doing or that his judgment was impaired in any way. Consequently, the Court concludes that the defendant knowingly and voluntarily waived his constitutional rights.
The defendant also asserts that because this case implicates the death penalty, a different kind of penalty from other criminal punishment, "there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." Citing State v. Rizzo, 266 Conn. 171, 227 (2003). Accordingly, he argues, unaccompanied by any analysis; see State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992); that this Court should construe our state constitution to impose a requirement that the State be obligated to prove the voluntariness of the defendant's confession beyond a reasonable doubt rather than by a fair preponderance of the evidence. The defendant has not cited any authority in which a court has required, in a capital felony case, that the State establish the voluntariness of the defendant's confession beyond a reasonable doubt.
In the context of a non-capital case, the Connecticut Supreme Court in State v. James, 237 Conn. 390, 409-26 (1996), held that our state constitution does not require the State to meet a heightened standard of proof on the issue of voluntariness. Each of the legal and policy reasons cited by the Court in rejecting that the defendant's claim in that case, where the defendant was charged and convicted of felony murder, apply equally to this capital felony case. I do not find any indication by our Supreme Court in James that a different result would be reached in a capital felony case. Even if the State were required to demonstrate the voluntariness of the defendant's waiver and confession beyond a reasonable doubt, I conclude that it has met that burden here.
C. The defendant's statements were the product of an essentially free and unconstrained choice by the defendant.
Finally, even if the defendant knowingly and voluntarily waived his Miranda rights, the State must still establish that his actual statements were voluntary given. Prior to the suppression hearing, counsel for the defendant conceded that the defendant was not asserting that he was physically or mentally coerced in any manner into giving his oral and written statements. Instead, counsel for the defendant made clear that the defendant's claim was limited to his assertion that the police failed to give the required Miranda warnings and that his decision to waive those rights was not voluntary. The defendant specifically disavowed any claim that the statements themselves were the product of police tactics that overbore the defendant's will to resist after he agreed to speak with them.
Regardless of this concession by the defendant, the Court finds that the State has met its burden of establishing that the defendant's statements were voluntary. There is absolutely no evidence — certainly none that I credit — of any physical or mental coercion of the defendant. The questioning was neither prolonged nor accompanied by questionable interrogation tactics. The defendant was not deprived of food, water or sleep for any significant period. In fact, even though the defendant at 6:00 p.m. initially denied his responsibility for the murder, once confronted with the blood in his car, he quickly and freely admitted to his guilt within the next few hours following his initial interrogation.
D. The Defendant voluntarily consented to searches of his home and automobile.
The defendant also argues that any physical evidence seized from his home or automobile should be suppressed because the Waterbury police department's first search of his home and vehicle was warrantless and non-consensual. "At a suppression hearing, the state has the burden of establishing by a preponderance of the evidence that the defendant voluntarily consented to the search." State v. Ortiz, 17 Conn.App. 102, 103, 550 A.2d 22, cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988), citing United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983), cert. denied, 471 U.S. 1021, 105 S.Ct. 2030, 85 L.Ed.2d 313 (1985). "The state has the burden to establish the voluntariness of the consent . . ." (Internal quotation marks omitted.) State v. Foote, 85 Conn.App. 356, 364, 857 A.2d 406 (2004). "It is axiomatic that searches and seizures inside a home without a warrant are presumptively unreasonable . . . A warrantless search or entry into a house is not unreasonable, however, under the fourth amendment to the United States constitution or article first, § 7, of the Connecticut constitution when a person with authority to do so has freely consented . . . It is the state's burden to prove that the consent was freely and voluntarily given, and that the person who purported to consent had the authority to do so . . . Such consent may not be established by mere acquiescence to police authority." (Citation omitted; internal quotation marks omitted.) State v. Yusuf, 70 Conn.App. 594, 603-04, 800 A.2d 590, cert. denied, 261 Conn. 921, 806 A.2d 1064 (2002). "The question of whether a defendant has given voluntary consent to enter or search his or her premises is a question of fact to be determined by the trial court by considering the totality of the circumstances surrounding the entry or search." State v. Martinez, 49 Conn.App. 738, 743, 719 A.2d 1175, cert. denied, 247 Conn. 934, 719 A.2d 1175 (1998).
"No one factor is controlling on the question of voluntariness . . . The determination to be made is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice." (Citation omitted; internal quotation marks omitted.) State v. Carcare, 75 Conn.App. 756, 771-72, 818 A.2d 53 (2003). "The voluntariness of the consent is normally decided by the trial court based on the evidence it deems credible along with reasonable inferences that can be drawn therefrom." (Internal quotation marks omitted.) State v. Martinez, supra, 49 Conn.App. 743.
For the same reasons, and based on the same set of facts, the court concludes that the defendant voluntarily consented to the search of his home and vehicle. The defendant orally consented to the search and was then handed a consent to search form. The form identified the house and car the police sought to search and the police's legal obligation to obtain a search warrant if he was unwilling to voluntarily consent to the search. The defendant checked the appropriate boxes on the form indicating that he was willing to consent to the search of his home and automobile. The defendant signed and dated the form and also indicated the approximate time, 6:00 p.m. There is no evidence that the defendant was forced into signing this document or that his choice to do so was the result of any physical or mental coercion by the Waterbury Police Department. Accordingly, the Court concludes that the defendant understood his rights and knowingly, voluntarily, and intelligently waived them and consented to the search of his home and automobile.
E. The Waterbury Police Department was not constitutionally obligated to videotape or audiotape the defendant's interrogation or confession.
The Court next addresses the defendant's claims regarding the failure of the police to videotape or audiotape the defendant's confession. As the Court understands it, the defendant makes two related but distinct claims in this regard. First, he argues that the Court should consider the police's decision not to electronically record the questioning of the defendant as evidence that the defendant's confession was not voluntary; in other words, that the police have something to hide. The Court agrees with the defendant that this is a permissible inference to draw and I find nothing in the applicable case law that would prevent me from making such an inference in the appropriate case. However, based upon the facts found and the conclusion reached in Part IIC of this decision, I do not find any facts or circumstances that would lead me to question the appropriateness of the Waterbury Police Department's tactics or interrogation methods in this case. Under a different set of circumstances, in which the interrogation was especially prolonged or accompanied by questionable interrogation tactics before the defendant "confessed," I might be inclined differently. But this is not such a case.
The defendant's second claim appears to be that in capital felony cases, our federal and state constitutions require that any confession must be electronically recorded in order for the confession to be used against him at trial. The defendant cannot prevail on this claim.
With respect to the federal constitution, courts have repeatedly held there is no federal right to have custodial interrogations recorded. See United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004) (refusing to require the electronic recording of all interrogations); Reinert v. Larkins, 379 F.3d 76, 94 n. 4 (3d Cir. 2004) (no federal right to have custodial interrogations recorded); United States v. Yunis, 859 F.2d 953, 961 (D.C. Cir. 1988) (no constitutional requirement that confessions be recorded by any particular means); Mastin v. Senkowski, 297 F.Sup.2d 558, 606 (W.D.N.Y. 2003) (defendant's argument that he was entitled to have an adverse inference drawn against the prosecution based on the police officer's failure to videotape the interrogation does not present a claim of constitutional dimension); see also United States v. Zamudio, No. 99-2256, 2000 U.S.App.Lexis 8235, at *8 (10th Cir. Apr. 26, 2000) (stating the Fifth Amendment does not require the recording of post-arrest statements); Ridgley v. Pugh, No. 98-35429, 1999 U.S.App.Lexis 7408, at *4 (9th Cir.Apr. 12, 1999). In reaching this conclusion, federal courts have not distinguished between death penalty cases and other cases. See, e.g., Trice v. Ward, 196 F.3d 1151, 1170 (10th Cir. 1999), cert. denied, 531 U.S. 835, 121 S.Ct. 93, 148 L.Ed2d 53 (2000).
The Connecticut constitution also does not mandate electronically recording interrogations in order for them to be admissible. State v. James, 237 Conn. 390, 428 (1996); see also State v. Lapointe, 237 Conn. 694, 735, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S.Ct. 484, 136 L.Ed.2d 378 (1996). Although James was not a capital felony case — Mr. James was convicted of felony murder — I have found nothing in the language of James, and the extensive analysis conducted by that court on this issue, that would suggest our state constitution requires electronically recording confessions in capital felony cases.
In State v. James, the Connecticut Supreme Court cited a number of policy reasons or attendant costs that militated against finding a state constitutional requirement that interrogations be electronically recorded in order to be admissible. For example, the Court noted that requiring the police to record all confessions and interrogations "might severely inhibit the police in pursuing, by constitutionally valid methods, confession evidence. Moreover, a criminal suspect's knowledge that an interview with the police will be recorded might limit his or her willingness to speak with the police . . . Similarly, a criminal defendant may be more forthcoming when speaking to the police without the presence of a tape recorder or video camera. Moreover, in addition to the costs associated with compliance with a recordation requirement, the cost of noncompliance with the rule advanced by the defendant, due to negligence or for other reasons, is the loss of otherwise admissible, probative evidence of guilt." State v. James, supra, 237 Conn. at 433-34.
These considerations apply equally to both "garden-variety" murder cases like James, as well as capital felony cases like the instant case. Additionally, a conclusion that the state constitution requires that interrogations need not be electronically recorded in "garden-variety" murder cases but must be electronically recorded in capital felony cases would place law enforcement in the unworkable position of having to make a "Hobson's Choice" at a preliminary investigative stage of a murder long before a charging decision by a prosecutor has been made. In effect, law enforcement would be compelled to electronically record interrogations in all murder cases because of the potential that subsequently learned facts might justify bringing capital felony charges in the case. I can find nothing in our state constitution or the case law interpreting it that would require shackling law enforcement in this manner. Accordingly, the defendant's assertion that a different rule must apply to capital felony cases is without merit.
Of course, no murder case is truly of "garden variety" to anyone involved.
A "`Hobson's choice' is an apparent freedom of choice with no real alternative." (Internal quotation marks omitted.) State v. Messler, 19 Conn.App. 432, 436 n. 3 (1989).
Finally, the defendant claims that his state constitutional right to due process requires that this court suppress his written confession because the "original" has been lost. Similarly, he argues as evidentiary matter, that any "copy" of the written statement must be excluded pursuant to the best evidence rule.
The Court places the word "original" in quotation marks because the defendant argument appears to suggest that there is only one original of the defendant's written confession. However, as discussed below, the written statement was prepared and signed in triplicate. In these circumstances, the yellow copy is more properly referred to not as a "copy" of the original, but as a "duplicate original." The official commentary to § 10-1 of the Code of Evidence provides that "[d]uplicate originals," such as a contract executed in duplicate that are intended by the contracting parties to have the same effect as the original quality as originals under the rule. Moreover, Connecticut courts have long held that a duplicate is that "which is double or twice made; an original instrument repeated. A document which is the same as another, in all essential particulars . . . Sometimes defined to be the copy of a thing, but, though generally a copy, a duplicate differs from a mere copy, in having all the validity of an original." Lorch v. Page, 97 Conn. 66, 69, 115 A. 681 (1921). As the Connecticut Supreme Court once noted, "When an instrument is executed in duplicate, each is an original . . ." Colburn's Appeal, 74 Conn. 463, 467, 51 A. 139 (1902). Consequently, the yellow version of the document is as much the original as the white version that has been lost.
The following additional facts are relevant to this claim. The "original" of the defendant's written statement that he gave to the Waterbury Police Department has since been lost. On November 5, 1997, the Waterbury State's Attorney, John Connelly, brought the "original" statement to the probable cause hearing in this case. At that hearing, Attorney Connelly and counsel for the defendant, Attorney Ronald Gold, discussed, on the record, permitting a copy of the statement to be admitted at the probable cause hearing as a full exhibit, in lieu of the "original," so that the original could be retained and offered at a subsequent hearing without having already been marked. Attorney Gold was given an opportunity to compare the proffered copy to the original statement. Attorney Gold then stated on the record that he had no objection to the copy being admitted in lieu of the original. The copy of the defendant's statement was then admitted as a full exhibit and marked as State's Exhibit #23 at that hearing. It was also admitted into evidence during this suppression hearing and marked as State's Exhibit #5.
The defendant concedes that he has no evidence that State's Exhibit #5 is a forgery. He does assert, however, that there is, to paraphrase, a "genuine question" regarding the document's authenticity. In making this claim, the defendant notes that on State's Exhibit #5 there is a faint, diagonal line on the front page that transverses the document from right to left. The defendant also points to the fact that the page number at the bottom of the first page has been circled in blue ink, and that a page number has been written in blue ink at the bottom of page 2. Finally, the defendant points out that there is a check mark in pencil at the end of a sentence on page two of the document, about 27 lines from the top. The defendant did not offer any testimony or any expert to support its claim that State's Exhibit #5 is not a true and accurate copy of the original signed statement.
It is important to note that, at the suppression hearing, the yellow "duplicate original" of the defendant's original statement was admitted into evidence. State's Exhibit #7. Based upon the Court's review of these documents, the yellow version, State's Exhibit #7, is identical to State's Exhibit #5, with the sole exception of the marks on State's Exhibit #5 just discussed. Counsel for the defendant stated that the yellow version appears to be the best evidence of the original statement, or at least better evidence than the copy admitted at the probable cause hearing. At this hearing, one or more of the State's witnesses testified, and I find, that State's Exhibit #5 is a true and accurate copy of the original. I also find that State's Exhibit #7 is identical to the "original" and is in fact a "duplicate original." See footnote 12. This finding is itself based on the evidence regarding how the yellow duplicate original was created and the lack of markings on the yellow duplicate original that would indicate it has been altered in any way.
There are competing theories as to who is responsible for the loss of the white version of the original: the Court, the State's Attorney's Office, or the Waterbury Police Department. There is no evidence in this record that it was intentionally destroyed or lost by anyone.
At the hearing on this motion, counsel for the defendant sought to call the Waterbury State's Attorney John A. Connelly as a witness regarding his knowledge regarding the whereabouts of the white version of the document. The court declined to permit the defendant to call Attorney Connelly as a witness at this hearing in light of the following: (1) the Connecticut Supreme Court has held that the prosecutor may be called as a witness in a criminal case in which he is an advocate only upon a showing of "compelling need"; see Ullmann v. State, 230 Conn. 698 (1994); (2) if the document was lost by accident, that is, in the absence of bad faith, the question of its admissibility would not turn on the identity of the party who lost the document; and (3) the defendant could not make a offer of proof sufficient to demonstrate that he had a reasonable ground to inquire of Attorney Connelly regarding any bad faith or fraudulent purpose for the loss of the document.
In asserting that principles of due process inherent in our state constitution require suppression of the defendant's confession, the defendant appropriately relies on the Connecticut Supreme Court's decision in State v. Morales, 232 Conn. 707 (1995), in which our Supreme Court extensively discussed "what might loosely be called the area of constitutionally guaranteed access to evidence." United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440,73 L.Ed.2d 1193 (1982).
"Under the federal constitution, the state's failure to provide evidence within its control to a criminal defendant may violate the defendant's right to due process of law in two types of situations. The first situation concerns the withholding of exculpatory evidence by the police from the accused. The United States Supreme Court has held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the [government]." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990); State v. Cohane, 193 Conn. 474, 495, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984); see State v. Milner, 206 Conn. 512, 539-40, 539 A.2d 80 (1988). This type of violation of the defendant's due process rights is commonly referred to as a " Brady violation." State v. Morales, 232 Conn. 707, 714, 657 A.2d 585 (1995). The defendant does not assert that the failure of the State to produce the original for the new penalty phase hearing constitutes a Brady violation.
The second situation identified in Morales, and the one arguably at issue in this case, concerns the failure of the police to preserve evidence that might be useful to the accused. In Morales, with respect to this category of case, the Connecticut Supreme Court held that the test for due process claims brought pursuant to federal guarantees of due process does not apply to similar claims under our state constitution. Instead, for this category of claims, the Connecticut Supreme Court has stated the trial court must weigh the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: "the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence." State v. Morales, supra, 232 Conn. 727.
Applying that test to the circumstances presented here, the Court concludes that due process does not require the Court to suppress or exclude a "copy" of the defendant's written confession from the penalty phase hearing. First, the Court recognizes that the materiality of the evidence is high because the state seeks to use its contents to demonstrate the existence of one or more aggravating factors in a capital felony case. However, the other factors weigh heavily in favor of the State's position. First, in light of the Court's factual conclusion that the yellow duplicate original, State's Exhibit #7, is identical to the white version, there is virtually no likelihood of a mistaken interpretation of it by a witness or factfinder. Second, there is no factual basis for the Court to conclude any bad faith or nefarious purpose of either the police or the State's Attorney Office regarding the failure to produce the original. Indeed, it is the Court's conclusion that the document has been innocently misplaced.
Finally, the prejudice to the defendant is practically nonexistent. Counsel for the defendant had an opportunity to review a copy of the original statement (State's Exhibit #5) at the probable cause hearing and to a certain whether the copy of that statement admitted at that hearing was a true and accurate copy of the original. Moreover, the yellow duplicate original which is available to both parties is identical to the lost original. Additionally, any prejudice is minimized by the cumulative nature of the evidence. Even if the written statement were not to be admitted, the defendant's oral statement to the police officers are fully admissible, including what the defendant stated to Det. Coyle as Det. Coyle was typing the defendant's words into the computer. Under these circumstance, the Court finds that the prejudice to the defendant, if any, is minimal. Accordingly, the balance tips strongly in favor of the State's position here.
See State v. James, supra, 237 Conn. 431; State v. Frazier, 185 Conn. 211, 225, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S.Ct. 3496, 73 L.Ed.2d 1375 (1982).
In light of this analysis, the Court concludes that the defendant's due process rights do not require suppression of the document. This conclusion is buttressed by the fact that other courts have permitted copies of written confession to be admitted at trial when the original is lost. See, e.g., People v. Bowman, 420 N.E.2d 1085 (Ill.App. 1981); Commonwealth v. Fay, 439 N.E.2d 855 (Mass.App. 1982); State v. Baker, 630 S.W.2d 111 (Mo.App. 1981); Hoover v. Senkowski, 2003 WL 21313726 (E.D.N.Y. 2003).
The defendant's remaining claim regarding exclusion of the document is made pursuant to the best evidence rule and therefore is not of constitutional magnitude. This Court believes that the issue of whether the best evidence rule requires exclusion should be decided by the three-judge panel assigned to the penalty phase hearing in this case. The application of the best evidence rule, and the well-recognized exceptions to it is best left to the three-judge panel in light of the specific versions of the written statement the State intends to offer at trial and any evidence the State might offer regarding the diligence of the search for the missing document.
Accordingly, the Court defendant's motion to suppress is denied.
Prescott, J. Judge of the Superior Court.