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State v. Cushard

Appellate Court of Connecticut

April 26, 2016

STATE OF CONNECTICUT
v.
ROBERT CUSHARD

         Argued November 18, 2015.

          Substitute information charging the defendant with the crime of assault in the first degree, and with two counts each of the crimes of robbery in the first degree and burglary in the first degree, brought to the Superior Court in the judicial district of Litchfield, where the court, Ginocchio, J., denied the defendant's motion to suppress certain evidence and granted the defendant's motion to represent himself; thereafter, the matter was tried to the jury; verdict and judgment of guilty of assault in the first degree, one count of burglary in the first degree and two counts of robbery in the first degree, from which the defendant appealed to this court.

          SYLLABUS

         Convicted of assault in the first degree, robbery in the first degree and burglary in the first degree, the defendant appealed to this court, claiming, inter alia, that the trial court improperly granted his motion to represent himself, and improperly denied his motion to suppress certain statements that he made to a police detective without knowingly and intelligently having waived his Miranda rights. On the day that the defendant was arrested, he was brought to the police station where the detective read the Miranda rights to him. The defendant read, initialed and signed the form to waive his Miranda rights before the detective interrogated him for nearly one hour. Toward the end of the interrogation, the defendant stated that he had smoked crack cocaine about one hour prior to having been arrested. The detective then terminated the interrogation. He told the defendant that he did not want to take a statement from him if he was not in the right state of mind as a result of having smoked crack cocaine. At a hearing on the defendant's motion to suppress, the trial court credited the detective's testimony that he had not observed the defendant act incoherently during the interrogation but, rather, that the defendant seemed composed, articulate and calculating, and had been able to make rational decisions. The court found that under the totality of the circumstances, the defendant understood the Miranda rights, and that he had not indicated when he read, initialed and signed the waiver form that there was any issue as to drug abuse. At the hearing on the motion to suppress, the defendant did not provide any information about drug use treatment he may have received, or offer expert testimony to explain the effect an illegal substance may have had on his ability to make a voluntary, knowing and intelligent waiver of his Miranda rights. On appeal, the defendant claimed that the trial court's conclusion that his waiver was valid was based on an irreconcilable inconsistency between the detective's testimony and his refusal to take the defendant's statement after the detective learned that the defendant had smoked crack cocaine. Held :

         1. The trial court properly denied the defendant's motion to suppress the statements that he made during the detective's interrogation of him and determined that under the totality of the circumstances, the defendant had understood and validly waived his Miranda rights: contrary to the defendant's claim, the court's factual findings were not clearly erroneous or irreconcilably inconsistent, as the detective testified that he had not observed the defendant act incoherently during the interrogation but, rather, that the defendant seemed composed, articulate and calculating, and that he had been able to make rational decisions; moreover, the record supported the court's finding that the defendant had not indicated that he had used crack cocaine earlier that day until he became concerned about admissions he might make during the interrogation, and the court reasonably could have determined that the detective may have been exercising caution in terminating the interrogation upon hearing the defendant's claim that he had used crack cocaine.

         2. The trial court's inadequate initial canvass of the defendant during his motion to represent himself was harmless beyond a reasonable doubt, as the infirmities in that canvass were cured by the court's proper canvass of the defendant four months later: although the defendant at his arraignment more than one year before the initial canvass had been advised of and understood his right to the assistance of counsel and the nature of the charges against him, he had been declared incompetent during the year between the two canvasses, and the court's initial canvass did not establish that he knew that he had the right to the assistance of counsel or understood the nature of the charges against him; however, because the defendant did not identify any specific and unremediable harm that he suffered between the two canvasses, contrary to his claim, the inadequate initial canvass did not constitute structural error that rendered his trial fundamentally unfair.

         3. The defendant could not prevail on his claim that the trial court improperly instructed the jury that it had to consider his interest in the outcome of the trial; the challenged instruction was preceded and followed by mitigating language that required the jury to consider the defendant's testimony as it would that of other witnesses, and the instructions as a whole were not unfair or unbalanced and, thus, did not undermine the presumption of innocence or violate the defendant's constitutional rights.

         Daniel J. Krisch, assigned counsel, for the appellant (defendant).

         James M. Ralls, assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Dawn Gallo, supervisory assistant state's attorney, for the appellee (state).

         Lavine, Beach and Mihalakos, Js. BEACH, J. In this opinion the other judges concurred.

          OPINION

          [164 Conn.App. 834] BEACH, J.

          The defendant, Robert Cushard, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree, two counts of robbery in the first degree, and one count of burglary in the first degree pursuant to General Statutes § § 53a-59 (a) (1), 53a-134 (a) (1) and (3), and 53a-101 (a) (2), respectively. On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress statements that he made during an interrogation by the state police, in that he had smoked crack cocaine a few hours prior to the interrogation and, as such, the waiver of his Miranda [1] rights was invalid; (2) granted his motion to represent himself because the court's canvass of him did not adequately establish that his waiver was voluntary, knowing, and intelligent; and (3) instructed the jury that it had to consider his interest in the outcome of the trial, in that such instruction singled him out and thus undermined his right to a fair trial. We do [164 Conn.App. 835] not agree with the defendant's claims, and we affirm the judgment.

         The following facts and procedural history are relevant to the disposition of the defendant's appeal. The defendant was arrested in Massachusetts on August 4, 2011. Shortly after his arrest, two Connecticut state police officers interrogated the defendant. During this interrogation, the police prepared a statement for the defendant, but he declined to sign it. A transcript and audiotape of the interview were entered into evidence at the defendant's trial. In July, 2012, the defendant moved to suppress the statements he made during the interrogation, as well as any testimony related to the statements. He argued that he had not knowingly and intelligently waived his rights to counsel and against self-incrimination because he had used crack cocaine shortly prior to his arrest and subsequent interrogation. The court denied the motion.

         In September, 2012, the defendant filed a motion to represent himself. The defendant claimed that his attorney, Christopher M. Cosgrove, was not familiar with his case and was ineffective. In October, 2012, the court conducted a canvass of the defendant, at the end of which the court granted his motion to represent himself. In February, 2013, the court recanvassed the defendant " to go over that once again." The defendant indicated, again, that he wished to proceed without counsel.

         After hearing the evidence, the jury found the defendant guilty of assault, burglary, and two counts of robbery.[2] The defendant was sentenced to thirty years imprisonment, followed by ten years of special parole. This appeal followed.[3]

         [164 Conn.App. 836] I

         The defendant claims that the court erred when it denied his motion to suppress the statements he had made during an interrogation by Brian Narkewicz, a detective with the Connecticut state police. He argues that he did not knowingly and intelligently waive his Miranda rights before giving his statements to the police because he had smoked crack cocaine a few hours earlier. We do not agree.

         Additional facts, as presented in the record, are necessary to resolve this claim. When the defendant was arrested and brought into the interview room at the police station, Narkewicz read the defendant his rights, and the defendant placed his initials next to each right on a waiver form. The defendant also signed the bottom of the waiver form. Narkewicz testified that the defendant appeared to read the rights form prior to signing. He agreed with the prosecutor that, on the basis of the interview, he believed that the defendant had a sophisticated understanding of the criminal justice system.[4] Narkewicz questioned the defendant about the [164 Conn.App. 837] allegations against the defendant for nearly one hour. He testified that the defendant " was interacting with me in a very coherent and logical manner" and " answering the questions in a logical, calculated manner."

         Toward the end of the interrogation, the defendant told Narkewicz that he had used crack cocaine one hour prior to his arrest. In response, Narkewicz terminated the interrogation: " I don't want to take a statement from you when you're [messed] up . . . [and] if you're not in the right frame of mind . . . . [W]e're not going to take a statement from you right now because, you know, you're telling me that you're still messed up on crack cocaine, and I certainly don't want to . . . do anything you're going to regret later on . . . ."

         At the hearing on the motion to suppress, Narkewicz testified that, on the basis of his experience and training, he did not believe that the defendant was unable to make rational decisions: " Given the lapse of time between when he was taken into custody and when I was speaking with him, I did not believe that to be a factor during this interview." [5] Narkewicz also testified that the defendant corrected Narkewicz' grammar and pronunciation throughout the investigation. He had not detected the defendant slurring his speech. He observed the defendant exhibit similar mannerisms and speech both during the interview and the next day when the defendant would not have been under the influence of crack cocaine.

         The court denied the motion to suppress, and although the court did not make a specific finding as to whether the defendant was under the influence of drugs at the time of the interview, it found in the " totality of the circumstances" that Narkewicz " was a credible [164 Conn.App. 838] witness when he addressed the issue of notice, rights, and waiver of rights. Apparently, [the defendant], according to the testimony, understood those rights, checked off boxes on each right, [and] signed the rights; he never indicated to Detective Narkewicz, at that point, that there was any issue insofar as cocaine or drug abuse . . . ." The court noted that the defendant had not provided information about any treatment he may have received for drug use or introduced expert testimony to explain the effect an illegal substance may have had on his ability to make a voluntary, knowing, and intelligent waiver.

         The defendant argues that the court's conclusion that the waiver was valid was erroneous because it was based on inconsistent findings. He argues that " [t]here is an irreconcilable inconsistency between Narkewicz' testimony and his refusal to take the defendant's statement after he learned that the defendant had smoked crack a few hours earlier. Given the trial court's express reliance on Narkewicz' credibility and reliability, its finding of voluntariness cannot stand."

         First, we set forth the principles that guide our review. " To be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 50, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004). " Although the issue [of whether there has been a knowing and voluntary waiver] is . . . ultimately factual, our usual deference to fact-finding by the trial court is qualified, [164 Conn.App. 839] on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence." (Internal quotation marks omitted.) State v. Stephenson, 99 Conn.App. 591, 599-600, 915 A.2d 327, cert. denied, 282 Conn. 903, 919 A.2d 1037 (2007).

         " Moreover, an express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case . . . [and] in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated. . . . Although mere silence of the accused is not enough to establish waiver . . . the record need not show a specific expression of the relinquishment of rights." (Citations omitted; internal quotation marks omitted.) Id., 600.

         We conclude that the court's factual findings were not clearly erroneous or irreconcilably inconsistent and that they survive a scrupulous examination of the record. See id., 599-600. " The trial court has broad discretion in evaluating the evidence and testimony presented before it." State v. Billie, 47 Conn.App. 678, 692, 707 A.2d 324 (1998), aff'd, 250 Conn. 172, 738 A.2d 586 (1999). The court credited Narkewicz' testimony that he did not observe, on the basis of his experience and training, the defendant acting incoherently. Rather, the defendant seemed to be composed, articulate, and calculating. Moreover, the record supports the court's finding that the defendant, at the time of the interview, did not indicate that he had used crack cocaine until " things were getting a little too close for comfort with the defendant, in terms of any admissions he might [164 Conn.App. 840] be making . . . ." [6] Although Narkewicz terminated the interrogation upon hearing the defendant's claim that he had used crack cocaine that day, the court reasonably could have determined from Narkewicz' testimony that the defendant was capable of ...


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