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State v. Labarge

Appellate Court of Connecticut

April 5, 2016

STATE OF CONNECTICUT
v.
MICHAEL LABARGE

         Argued January 11, 2016.

          Substitute information charging the defendant with the crimes of murder and tampering with physical evidence, brought to the Superior Court in the judicial district of New Britain, where the court, D'Addabbo, J., denied the defendant's motions to sever and to suppress certain evidence; thereafter, the matter was tried to the jury; verdict and judgment of guilty, from which the defendant appealed.

          SYLLABUS

         Convicted of the crimes of murder and tampering with physical evidence, the defendant appealed. The defendant's conviction stemmed from his alleged conduct in beating the victim with a baseball bat, stabbing him nineteen times with a knife, thereby causing the victim's death, and then using a hand saw to cut the victim into fifteen pieces and hiding the remains in the nearby woods. The defendant, who had been charged with both crimes in a single information, claimed, inter alia, that the trial court improperly denied his motion to sever the murder count from the tampering count. Specifically, he claimed that the denial of his motion to sever prejudiced his right to a fair trial because the jury, after hearing the facts underlying the tampering charge, which were particularly brutal, violent and shocking, could not fairly consider his guilt as to the murder charge. He also claimed that the denial of his motion to sever compromised his fifth amendment right to testify in connection with the murder charge but to remain silent with respect to the tampering charge. Held :

         1. The trial court did not abuse its discretion in denying the defendant's motion to sever the charges: the defendant failed to meet his burden of proving that the offenses were not of the same character and should be tried separately, as the defendant failed to make the threshold showing that the evidence with respect to both charges was not cross admissible if the charges were tried separately, he acknowledged the cross admissibility of the evidence pertaining to both charges, and he thus could not prove any prejudice resulting from the trial court's failure to sever the charges; furthermore, in light of the cross admissibility of the evidence, it was not necessary for this court to consider the brutality of the crimes or any of the factors set forth in State v. Boscarino (204 Conn. 714, 529 A.2d 1260) governing the joinder of charges; moreover, the defendant failed to meet his burden of demonstrating that the denial of his motion to sever resulted in substantial prejudice to his fifth amendment rights, as he failed to provide the trial court with any information to make a convincing showing that he had both important testimony to give concerning the murder count and a strong need to refrain from testifying on the tampering count.

         2. The defendant could not prevail on his claim that the trial court improperly denied his motion to suppress certain incriminating statements he had made to two correction officers, D and C, while being transferred to a correctional facility following a court appearance, which he claimed were the product of custodial interrogation and were made without the benefit of having been accorded his Miranda rights: that court properly denied the defendant's motion to suppress and determined that the defendant had not been subject to interrogation for the purposes of Miranda when he made the subject statements, as the record showed that C did not elicit from the defendant any of his unforeseeably volunteered statements regarding his culpability, that the defendant freely volunteered the statements during a neutral conversation with D, who had initiated the conversation in order to relieve the tension of a stressful and invasive intake process and not for the purpose of soliciting incriminating information from the defendant, and that the only question that plausibly could have been seen as focused on the defendant's potential criminal liability concerned whether the defendant had been in court in connection with the murder in New Britain, but that the defendant's affirmation of his reason for his presence in court provided no proof of his guilt, would have added nothing to the state's case and, as such, was not reasonably likely to elicit an incriminating response from the defendant; moreover, because the right to counsel applies only when the government deliberately elicits incriminating information, the defendant's sixth amendment right to counsel was not violated here.

         William B. Westcott, assigned counsel, for the appellant (defendant).

         Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, was Brian Preleski, state's attorney, for the appellee (state).

         DiPentima, C. J., and Prescott and Bishop, Js. BISHOP, J. In this opinion the other judges concurred.

          OPINION

          [164 Conn.App. 298] BISHOP, J.

          The defendant, Michael Labarge, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1). On appeal, the defendant claims that the trial court improperly (1) denied his motion to sever for trial the two charges against him and (2) denied his motion to suppress certain statements that he had made to state correction officers. We affirm the judgment of the trial court.

         The jury could have reasonably found the following facts. In the evening of August 29, 2009, the defendant [164 Conn.App. 299] came across the victim, Cornell Johnson, selling crack cocaine to the defendant's girlfriend, Sherri Clarke. The defendant then beat the victim with a baseball bat and stabbed him nineteen times with a knife, killing him. The defendant then cut off the victim's penis and left the murder scene with Clarke, taking the victim's penis, identification, money, and drugs with him. The couple went to their apartment in New Britain where the defendant flushed the victim's penis down the toilet. The couple also showered, changed clothing, and smoked crack.

         In the early morning of August 30, 2009, the defendant and Clarke returned to the murder scene and set fire to the victim's car. Later that morning, the couple purchased two hand saws from The Home Depot and again returned to the murder scene. There, they used the hand saws to cut the victim's body into fifteen pieces and they then hid the victim's remains in the nearby woods.

         The defendant subsequently was arrested in connection with the murder and dismemberment of the victim. The state charged the defendant in a two count, single long form information with murder in violation of § 53a-54a in count one and tampering with physical evidence in violation of § 53a-155 (a) (1) in count two. Following a jury trial, the defendant was convicted on both counts,[1] and the court, D'Addabbo, J., sentenced the [164 Conn.App. 300] defendant to a total effective sentence of sixty-five years incarceration. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that the court abused its discretion by denying his motion to sever the murder count from the tampering count. His claim is twofold. The defendant first relies on State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987),[2] to argue that the denial of his motion to sever prejudiced his right to a fair trial because the jury, after hearing the facts underlying the tampering charge, which he argues were particularly brutal, violent, and shocking, could not fairly consider his guilt as to the murder charge. In addition, the defendant argues that the court's denial of his motion to sever compromised his fifth amendment right to testify in connection with the murder charge but to remain silent with respect to the tampering charge.

         The following additional procedural facts are relevant to the resolution of the defendant's severance claims. On May 10, 2012, the state filed a substitute long form information charging the defendant in count one with [164 Conn.App. 301] murder in violation of § 53a-54a and in count two with tampering with physical evidence in violation of § 53a-155 (a) (1). The factual underpinning of the tampering charge related to the state's claim that, on the day after the murder, the defendant, with the help of his girlfriend, cut up and concealed the victim's body by placing it in various locations in the woods. In response, on May 15, 2012, the defendant filed a motion to sever the murder charge from the tampering charge.

         At the May 24, 2012 hearing on the severance motion, the defendant made a twofold claim. First, he argued that being required to defend the murder and tampering charges in the same trial would substantially prejudice him because the facts underlying the tampering charge were too brutal, violent, and shocking to allow the jury to consider fairly and independently his guilt as to the murder charge.[3] Second, he claimed that he wished to testify in response to the murder charge but not in regard to the tampering charge, and that being required to defend both charges in the same trial prejudiced his right, alternately to present a defense to the murder charge while preserving his right to remain silent as to the tampering charge. As to this second aspect of his claim regarding severance, the defendant stated that he had " substantial evidence to offer to the fact finder related to the cause of death of [the ...


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