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State v. Darwin

Supreme Court of Connecticut

May 31, 1967

STATE of Connecticut
v.
Roy F. DARWIN.

Page 574

[Copyrighted Material Omitted]

Page 575

John F. Shea, Jr., Manchester, with whom was W. David Keith, Manchester, for appellant (defendant).

Page 576

Etalo G. Gnutti, Sp. State's Atty., with whom, on the brief, was Joel H. Reed II, State's Atty., for appellee (state).

Before KING, C.J., and ALCORN, THIM, RYAN and COVELLO, JJ.

[155 Conn. 126]I

KING, Chief Justice.

A few minutes Before 8 o'clock in the evening of Wednesday, September 18, 1963, Hope Fern Rothwell, a girl of seventeen, left her [155 Conn. 127] home in Bolton to attend a meeting of the Tolland County 4-H club committee which was held in the Tolland Agricultural Center building, hereinafter referred to as the TAC building, in Vernon. She drove from Bolton in her mother's green Mercury automobile. The meeting was attended by six women, including Hope, and six men, including the defendant. It broke up at about 10:45 p.m.

A little Before 11 o'clock, when Hope had not returned home, her mother telephoned to the TAC building but received no answer. About one-half hour later, Hope's father and mother left the home to look for her. They drove over Reservoir Road, which was Hope's usual route to the TAC building, and came upon the Mercury car which Hope had been driving. The ignition key was still in the switch, and the car was standing near the center of the road, headed toward Bolton. In a plastic bag in the car were yarn, knitting needles and a partially knitted sweater which Hope had started.

About five minutes Before the Rothwells arrived at the scene, John Marshall, a Vernon police officer, had come upon the Mercury and had called headquarters for a listing of its registration. While he was waiting for a reply, a southbound car, headed toward Bolton, came along and blinked its lights. It did not stop, and it does not appear that Marshall thought to take its registration or otherwise to attempt to identify it.

No trace of Hope was found until the afternoon of Sunday, September 22, when her body was found in a gravel pit on Dockerel Road in the town of Vernon. Near her body were her handbag and the strap which had been detached from it. An autopsy established that death had been caused by mechanical strangulation, and a mark on her throat corresponded[155 Conn. 128] to the width of the strap. There was blood on the body and on the ground beside it.

Obviously Hope had been murdered, and the investigation of the crime was directed toward ascertaining the identity of the murderer. The probabilities were strong (1) that the murderer knew that Hope would be driving home alone from the meeting and that he knew her customary route, and (2) that he was known to her and had murdered her to avoid identification. Although the finding fails to mention the matter, the defendant, in his statement of facts in his brief, states that the autopsy did not indicate that she had been raped, and this appears to be correct. But seminal stains were found, on analysis by Dr. Abraham Stolman, the state toxicologist, on her undergarments. This clearly pointed to some sort of sexually motivated assault. All this evidence caused the investigation to include the men who were present at the 4-H club meeting. In the beginning the defendant, Roy F. Darwin, appeared co-operative.

Prior to the entry of the state police into the case, and after looking in vain for Hope, Mrs. Rothwell, beginning about midnight on September 18, in an endeavor to obtain information about her missing daughter, telephoned some of the persons she believed had attended the 4-H club meeting. She finally returned home about 1:30 a.m. and called Darwin just Before 2 o'clock in the morning, but the telephone was not answered. She called again about 2:15 a.m., and Darwin answered. He told her that he had arrived home about 11:25 p.m., that he thought he saw two cars on the road, that the front car was green (the color of the Mercury), and that he thought he saw a

Page 577

man in the front car, which seemed more toward the side of the road than the [155 Conn. 129] rear car, which he thought was brownish and not a police car. About 2:30 in the morning, Officer Marshall telephoned Darwin, who told him about his talk with Mrs. Rothwell, about the brownish car, and that the reason he did not stop was that he had no flashlight. Actually he did have a flashlight with him that night. Darwin then questioned Marshall rather searchingly about his police cruiser and was told about its tail-lights, that it was black with a white top, and that it had a red light. Darwin told Marshall that he saw someone in the first car who appeared large and to the wearing a hat. Except for the passing car which blinked its lights, the first ones on the scene after Marshall arrived were Hope's father and mother. About 5 o'clock in the morning of September 19, Darwin called Mrs. Rothwell and told her that, on thinking it over, he thought the color of the rear car had been black rather than brown. Samuel S. Rome, a major in the Connecticut state police, testified that on September 23, Darwin said he thought he had gotten the color of the car brown instead of black because of the brown color of the coffee he had been drinking the night of the 4-H club meeting.

Darwin was first approached by the state police on Thursday morning, September 19, when he was asked, by two officers, about the cars he had observed on his way home over Reservoir Road, and he voluntarily accompanied them to the place where Hope's car had been found. On Saturday, September 21, at his home, Darwin gave a written statement and made a sketch of the cars he had seen where Hope's car was discovered. On Monday, September 23, upon request, he voluntarily went to state police headquarters in Hartford and took a lie-detector test given by Sergeant Robert Reimer. [155 Conn. 130] On that occasion, Darwin told Sgt. Reimer that he had learned from reading The Hartford Courant and The Springfield Union that Hope's body had been found in some bushes. Although it was correct that the body had been found in a brushy area, that fact had no appeared in either of those two newspapers. Darwin also told Sgt. Reimer that he had never spoken to Hope Before the meeting of September 18, but at a later date he told him that he had spoken to her two or three times Before . From Hartford, Darwin went to the Vernon police headquarters, where he first talked with Major Rome. Darwin went home for dinner, and that evening two officers came to his home and requested that he and his wife return to Vernon for further talk with Major Rome. This they agreed to do, and did.

That evening, Darwin voluntarily turned over to the police the clothing which he claimed to have worn on the night in question, consisting of a pair of black shoes, a black tie, a pair of gray trousers and a white shirt. He also told them that he had driven his wife's Chevrolet to and from the 4-H club meeting, and this car was then visually examined by the police.

On October 8, Major Rome told Darwin that he had failed the lie-detector test and suggested that he take another, which he voluntarily did that same day. On October 10, Darwin was asked to take a sodium-amytal test, which he consented to do. This test was given by Dr. Marshall Smith. Prior to this test, Dr. Smith was told by Darwin that, because of his strong, German mind, strength of character and personality, no medication or anything else could effectively change his mind. On occasions prior to his arrest, Darwin had said substantially the same thing to Major Rome. Just Before the [155 Conn. 131] test, a police officer, dressed as a 'bum', told Darwin that he had seen a woman in a car with Darwin on Reservoir Road on the night in question. This statement was untrue, but in accomplished nothing since Darwin denied the truth of the statement. After the test, which the finding does not indicate was productive of anything, Darwin had black coffee, did not feel well and was taken from Vernon to the Stafford barracks and then home. On the way home from Stafford,

Page 578

he was nauseated, and the car had to be stopped. The next day he was unable to go to work. On October 10, Major Rome doubled the number of state police officers assigned to the case and, with the acquiescence of Mrs. Darwin, started checking the neighborhood for information on Darwin. Darwin was also placed under surveillance in order that the police might know his whereabouts at all times.

Several weeks later, Major Rome visisted Darwin's place of employment and asked Darwin to go with him, but Darwin refused, claiming he had been deceived as to the purpose of the sodium-amytal test. Rome then went to Willimantic, where Mrs. Darwin was employed, and she, too, refused to discuss the matter at that time.

Laboratory tests of the clothing which Darwin and turned over to the police as having been worn by him on the night in question disclosed seminal stains on the inside lower portion of the fly of his trousers and a human bloodstain on his white shirt.

On November 27, 1963, after receipt of the results of these tests and those made of Hope's undergarments, Bernard J. Ackerman, the coroner for Tolland County, commenced an inquest into Hope's death. At that hearing, seven witnesses were interrogated, and the hearing was resumed on December[155 Conn. 132] 4, when six more witnesses were heard. It was continued to the next day, December 5. Darwin was subpoenaed as a witness at the December 5 hearing and appeared, accompanied by his present counsel. His attorneys were allowed to be with him at the hearing and also to advise him and caution him respecting his rights. Under this guidance of counsel, Darwin testified as a witness Before the coroner. Major Rome was present at the hearing and met Darwin's attorneys. The inquest was not completed on that day but was continued rather than adjourned. On the morning of the next day, December 6, Coroner Ackerman issued a warrant for Darwin's arrest. This warrant was given to Major Rome, who went to Darwin's place of employment about 9 o'clock in the morning to serve it. Coroner Ackerman had refused Major Rome's request for a coroner's warrant when it was first made prior to the commencement of the coroner's inquest. The coroner's arrest warrant was issued on December 6 because the coroner felt that there was a strong probability, based on the evidence under oath which had been adduced at the inquest, that Darwin was the man criminally responsible for Hope's death.

With this rather lengthy background statement, we come to the claims of error in this case. Further facts, specifically applicable to these claims, will be given to the extent necessary for an understanding of the opinion.

II

We now consider certain claims raised at the trial, attacking the legality of Darwin's detention under the coroner's warrant and under a bench warrant.

[155 Conn. 133] (a)

The first claim attacks the validity, in the light of § 54-1b of the General Statutes, of Darwin's arrest and detention under the coroner's warrant.

Darwin was arrested under that warrant at about 9:40 in the morning of Friday, December 6, 1963, at his place of employment. General Statutes § 54-1b as it stood in 1963 (Public Acts 1963, No. 126 § 1) required that Darwin be 'presented Before the circuit court session next held in the circuit where the offense is alleged to have been committed'. There is no real dispute that the Circuit Court convened at 10 o'clock in the morning of that day, and that there was no session of the Circuit Court on Saturday, December 7, or Sunday, December 8. Section 54-lc of the General Statutes as it stood in 1963 provided that '(a)ny admission, confession or statement, written or oral, obtained from an accused person who has not been so

Page 579

presented to the first session of the (circuit) court * * * shall be inadmissible'. Public Acts 1963, No. 126 § 3. Of course if the arrest was illegal, it was necessarily unreasonable and would fall within the proscription of the fourth amendment to the United States constitution as made applicable to the states by the fourteenth amendment. State v. Collins, 150 Conn. 488, 492, 191 A.2d 253.

It is Darwin's claim that, since the December 6 session of the Circuit Court had not yet opened at the moment of arrest, that session was the session 'next held' and was the 'first session' within the meaning of the foregoing statutes. Under such a construction, if an arrest were made at 9:55 a.m., the arrested person would be required to be brought Before the Circuit Court on that day even if, for lack [155 Conn. 134] of business or otherwise, the court session lasted only five minutes. Such an absurd result should be avoided if the language of the statute permits a reasonable construction. We think the trial court correctly held that the term 'next session' of the Circuit Court referred to the regular session of the Circuit Court next to be held, excluding any session on the day on which the arrest was made. In this case, Darwin was required, under the statute, to be presented to the Circuit Court, after the arrest under the coroner's warrant, not later than Monday, December 9. We therefore find no merit in this claim of an illegal detention under the coroner's warrant.

(b)

Darwin also attacks the validity of his arrest and detention, in the light of § 54-43 of the General Statutes, under a bench warrant. Darwin was arrested under a bench warrant at about 12:50 p.m. on Sunday, December 8. Thereupon the coroner's warrant dropped out of the case and was superseded by the bench warrant. The bench warrant had not been given to the police for service until about 10:40 on Sunday morning. Darwin was arraigned Before the assistant clerk of the Superior Court at 2 o'clock in the afternoon of the same Sunday. The bench warrant had not been obtained by the state's attorney until the evening of Saturday, December 7. Section 54-43 of the General Statutes provides, as it did in 1963, for the arraignment 'forthwith' after an arrest under a bench warrant. There was a lapse of about one hour and ten minutes between the arrest under the bench warrant and the presentation for arraignment Before the assistant clerk of the Superior Court at 2 p.m. It is difficult to [155 Conn. 135] envision more faithful compliance with the terms of the statute under the circumstances, particularly if it is kept in mind that the arrest was made on a Sunday.

Darwin seems to claim that there was an unreasonable delay in the service of the bench warrant. Since arraignment was contemplated that very day, when of course the clerk's office was not open, it was necessary to attempt to make arrangements to have the clerk or assistant clerk present in the clerk's office at Rockville on that Sunday. The assistant clerk, who lived in Rockville, was in church when the first attempt was made to get in touch with her. It was nearly 1 p.m. when she was finally reached, and the arraignment was definitely fixed for 2 o'clock that afternoon. In the light of the statutory requirement of 'forthwith' arraignment, there might have been a question as to the legality of the arrest had it been made Before it had been ascertained that 'forthwith' arraignment was possible on the holiday, or had it subsequently developed that it was impossible to have arraignment on that Sunday.

The statute requires arraignment 'forthwith' after arrest. It does not require arrest 'forthwith' after the issuance of the bench warrant. Darwin attempts to construe the statute as requiring an arrest 'forthwith' upon issuance of the bench warrant. It is true that upon its issuance a bench warrant should be served within a reasonable time, under the particular circumstances. State v. Hodge, 153 Conn

Page 580

5 64, 568, 219 A.2d 367. But if a bench warrant were issued for the arrest of a person not already confined, obviously that person could not vitiate the bench warrant by the simple expedient of eluding the police over an extended period of time, even though by so doing he would have successfully[155 Conn. 136] prevented arrest under the bench warrant over the same period of time. Under all the circumstances, there is no justification for Darwin's claim that there was an unreasonable delay in the service of the bench warrant.

Nor does the mere fact that time was afforded for the partial reenactment of the crime on Sunday morning prior to the service of the bench warrant, or the subsequent confession after service of the bench warrant, but a few moments Before the time fixed for the arraignment, alter our determination that there was no illegality in the service of the bench warrant.

III

Darwin attacks the admission into evidence of certain articles seized by virtue of a search warrant issued by a judge of the Superior Court about a aweek Before the commencement of the trial. The search warrant was applied for under oath by the state's attorney for Tolland County, and both the application and the warrant, which was issued the same day, are printed in full in the record. On the same date the articles described in the warrant were seized. These were (1) the 1955 Chevrolet, which Darwin had admitted at the outset of the investigation, on September 23, that he had been driving on the night of September 18, and which the police had then and there visually examined, and (2) two flashlights. It will be recalled that Darwin had originally denied that he had any flashlight with him on the night in question and that he gave his lack of any flashlight as his excuse for not stopping when, as he claimed, he had come upon the two standing cars on his way home over Reservoir Road on the night of September 18.

[155 Conn. 137] Upon seizure of the Chevrolet, the front-seat cushion was taken out and delivered to Dr. Stolman, who tested a stain on it and found it was made by human blood. The interior of the car was vacuumed, and the dust and debris thus gathered were also examined by Dr. Stolman and were found to contain some hair. The finding does not disclose any test of the hair, as such.

Darwin claims that these items were inadmissible as the so-called 'fruits of a poisonous tree'. To understand this claim, some further facts are essential.

When Darwin was arrested under the coroner's warrant, he was first taken to his home in Andover. In a few minutes the coroner arrived and told Darwin that his house was to be searched by virtue of the coroner's statutory powers. Darwin told the coroner that the door was open but to beware of the dog. Darwin's permission for the search was not sought, and the coroner was acting under § 6-70 of the General Statutes, as amended by Public Acts 1963, No. 642 § 4. The coroner authorized the state police to search the house on his behalf and as his agents. When Mrs. Darwin returned to the house in the early afternoon, she found ten or twelve state troopers on the premises and asked them if they had a search warrant. They replied in the affirmative but showed no warrant and in fact had none except as they had received oral instructions from the coroner to make the search. The house was in a state of confusion or disarray as a result of the search by the troopers, and later that afternoon the troopers returned a Plymouth car, apparently owned by Darwin himself, and also the Chevrolet, together with an inventory of the other articles taken. A little Before 7 o'clock in the evening of [155 Conn. 138] the next day, December 7, the coroner and two members of the state police again arrived at the Darwin home. Mrs. Darwin again asked them if they had a search warrant and was told that none was necessary since they were going to search the house as the coroner's agents and at his direction. Mrs. Darwin was again asked for the keys to the Chevrolet

Page 581

which she gave them. The police took two battery-powered lanterns, one from the Chevrolet and one from the Plymouth, and a Phillips screwdriver from the rear of the Plymouth. On January 10, 1964, Darwin filed a motion to suppress all the foregoing articles, which were taken without any written warrant on December 6 and December 7, 1963. On February 18, 1964, the motion to suppress was granted, the court ordering that all property seized from Darwin be returned and that everything seized from him be suppressed as evidence. In an extensive memorandum of decision, the court held that General Statutes § 6-70, as amended by Public Acts 1963, No. 642 § 4, purporting to authorize the coroner to search and seize property without any search warrant, violated the state and federal constitutions. This ruling is not challenged by the state and of course is not challenged by Darwin.

It is admitted that the Chevrolet seized under the search warrant of February 20, 1964, had also been taken and searched, without any warrant, on December 6 and December 7, 1963. It is also admitted that sweepings had been vacuumed from the floor of the Chevrolet and placed in a plastic bag while the Chevrolet was in the possession of the police prior to the rendition of the order to suppress.

In the application of February 20, 1964, filed by [155 Conn. 139] the state's attorney, seeking the search warrant for the Chevrolet and the lanterns, it was set forth that Darwin had been arrested under the bench warrant, that he had been charged with murder, and that he had used the Chevrolet and the lanterns in committing the murder. The court found that the information as to the Chevrolet car and the lanterns had been obtained prior to the illegal searches of December 6 and December 7, and that the informations, since it was obtained independently of either of those searches, was not susceptible of attack as the fruits of an illegal search. See cases such as Fahy v. State of Connecticut, 375 U.S. 85, ...


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