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State v. Chankar

Court of Appeals of Connecticut

May 16, 2017

STATE OF CONNECTICUT
v.
MARWAN CHANKAR

          Argued March 8, 2017

         Appeal from Superior Court, judicial district of New London, Jongbloed, J.

          Jennifer B. Smith, assigned counsel, for the appellant (defendant).

          David J. Smith, senior assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (state).

          Alvord, Sheldon and Norcott, Js.

          OPINION

          ALVORD, J.

         The defendant, Marwan Chankar, appeals from the judgment of conviction, rendered after a jury trial, of arson in the first degree in violation of General Statutes § 53a-111 (a) (2) and criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (1). The jury found the defendant not guilty of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a. On appeal, the defendant claims that (1) his fifth amendment and fourteenth amendment privilege against self-incrimination was violated when police officers conducted a custodial interrogation of him without advising him of his Miranda rights;[1] (2) there was insufficient evidence presented at trial to support his conviction of arson in the first degree; and (3) the prosecutor violated his right to a fair trial by committing certain improprieties during closing argument. We affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In the summer of 2011, the defendant frequently spent time smoking crack cocaine with Henry Wickham and Anthony Thomas, who resided in the same three-story multifamily house on Rockwell Street in Norwich.[2]Wickham resided in the sole third floor apartment, and Thomas resided in Apartment 2A, which was located on the second floor toward the back of the house and below Wickham's apartment. While ‘‘hanging out'' together, the defendant and Wickham would smoke crack cocaine together. On or about July 7, 2011, the defendant helped Thomas move out of Apartment 2A. Because the defendant was homeless and nobody was living in Apartment 2A, the defendant began sleeping there.

         On July 9, 2011, at approximately 8:30 p.m., Wickham confronted the defendant about breaking into his third floor apartment when he was not present.[3] Wickham told the defendant to leave the house, and the defendant did so after retrieving some personal items from Apartment 2A. The defendant was ‘‘very upset and angry and pissed off'' about his argument with Wickham so he walked to a nearby package store to purchase some alcohol. The package store closed at 9 p.m. and was approximately a twenty-minute walk from Wickham's house. After having a couple of drinks, the defendant returned to Wickham's house. He took charcoal lighter fluid from Wickham's porch and started a fire in Apartment 2A.

         At approximately 10 p.m., Darrell Wommack, who resided in Apartment 2B, smelled something burning. When he walked into his kitchen, he saw a fire glowing on the trees behind the house. Wommack then went to his porch and realized that Apartment 2A ‘‘was on fire really bad.'' Wommack woke his roommate and told him to call the fire department. Wommack ran to Apartment 2A and began banging on the door to alert anyone inside to the fire. When nobody responded, Wommack pushed open the door and black smoke billowed out of the apartment, forcing him back into the hallway.

         When Wommack fell back into the hallway, his roommate met him. Wommack told his roommate to leave the house and proceeded upstairs to warn Wickham about the fire. When Wickham did not answer the door, Wommack opened it and found Wickham asleep in his bed. Wommack woke Wickham, who initially appeared to be ‘‘starstruck, '' and the two men ran out of the house. Thereafter, members of the fire department arrived.[4]

         Meanwhile, after leaving Wickham's house, the defendant saw an acquaintance, Samantha Fidrych, across the street. The defendant was unsure whether Fidrych saw him, so he called her from a nearby pay phone. During their conversation, the defendant told Fidrych that Wickham's house was on fire. Later, at about 11:30 p.m. or 12 a.m., the defendant called another friend, Laura Wallace, and told her that something had happened and he needed to speak to her. Wallace told the defendant to come to her house, and he arrived between 12 a.m. and 12:30 a.m. The defendant appeared worried and upset, and Wallace asked him what was wrong. The defendant told her about how Wickham had asked him to leave his house and how, after having a couple of drinks, he returned to the house and started a fire on the second floor. The defendant remarked that when he turned around as he was leaving, he was ‘‘really surprised [the fire] took off so fast because it just looked like daylight, it was so bright.''

         On July 26, 2011, police officers went to a methadone clinic that the defendant frequented to interview him about the fire. When the officers approached the defendant, he said, ‘‘I know why you're here.'' The officers asked why, and the defendant replied that they were there ‘‘about the fire on Rockwell Street, '' i.e., the location of Wickham's house. During their conversation, the defendant admitted to being at Wickham's house on July 9, 2011, to arguing with Wickham over crack cocaine, and to becoming ‘‘very upset and angry and pissed off'' at Wickham as a result. He maintained, however, that after Wickham told him to leave the house, he went to a nearby package store to purchase some alcohol and then spent the rest of the night with Wallace.

         The defendant also mentioned passing Fidrych about one hour after leaving Wickham's house and calling her to tell her about the fire at Wickham's house. When the officers asked the defendant how he knew there was a fire at that time, [5] he initially stated that he did not know but later claimed that Jonathon Bogue had told him about the fire.[6]

         During the interview, the officers questioned the defendant about whether he ever cooked with Wickham on Wickham's charcoal grill on the third floor porch. The defendant admitted that he had, but he stated that he could not remember how they started the fire on the grill. The defendant also correctly listed all of the items stored on Wickham's porch, with the exception of the charcoal lighter fluid. When the officers asked the defendant whether ‘‘he was actually responsible for the fire, whether it be accidentally or on purpose, '' the defendant responded, ‘‘I can't admit to it. I just can't have it.'' Sometime thereafter, the defendant told Wallace that he had told the police that he was with her on the night of the fire and asked her to corroborate his story.

         The defendant was charged by way of a substitute long form information with attempted murder, arson in the first degree, and criminal mischief in the first degree. The jury found the defendant guilty of arson in the first degree and criminal mischief in the first degree, and not guilty of attempted murder. The court sentenced the defendant to a total effective term of seventeen years of imprisonment followed by six years of special parole. This appeal followed.

         I

         We begin with the defendant's claim that the trial court violated his fifth and fourteenth amendment privilege against self-incrimination by denying his motion to suppress the statements that he made to the police officers during the July 26, 2011 interview. In particular, he argues that the court erred when it determined that he was not in custody at the time he was interviewed. We disagree.

         The court found the following additional facts that are relevant to the defendant's claim. Officer Robert Smith and Sergeant Peter Camp of the Norwich Police Department were assigned to investigate the fire at Wickham's house.[7] They developed information that the defendant was responsible for the arson and that he regularly attended the methadone clinic in Norwich. On the morning of July 26, 2011, the officers went to the clinic to see if the defendant arrived. Camp was parked across the street near a cemetery and Smith was parked in the clinic parking lot.

         When the officers observed the defendant arrive by bus and wait outside the clinic near a guardrail with another individual, they approached the defendant. The officers were dressed in plain clothes and, although armed, neither officer drew his weapon. The defendant told the other individual ‘‘words to the effect that he would catch up with him later.'' When the officers approached the defendant, he said, ‘‘I know why you're here . . . .'' The officers asked why, and the defendant replied that they were there ‘‘about the fire on Rock- well Street.''

         The officers asked the defendant if he would talk to them about the fire, and he said that he would, but he expressed his concern about being seen with the officers because he would be viewed as a ‘‘snitch.'' The officers asked the defendant if he would accompany them to the Norwich Police Department, but the defendant declined. The officers then suggested that they go to the cemetery across the street, and the defendant agreed. The officers returned to their respective vehicles and drove to the back of the cemetery where they looked around to make sure that they would not be interrupting any services. The officers waited for the defendant to walk to the location. During this time, the officers wondered whether the defendant would actually arrive. The defendant voluntarily walked to the location at the back of the cemetery.

         When the defendant arrived at the cemetery, the officers asked if they could search his backpack for weapons, but the defendant said that he preferred that they not do so. The officers then asked if they could put his backpack in one of their cruisers for safety reasons while they spoke, and the defendant agreed to that request. Camp put the defendant's backpack in his cruiser. The officers asked the defendant questions about the fire. During this discussion, the officers told the defendant that ‘‘no matter what he told us, he was free to leave at any time . . . .''[8]

         When the questioning became repetitive and the defendant expressed his concern about being late to meet his mother, the interview ended. The defendant mentioned that he wanted to call his mother, and Camp offered the defendant the use of his personal cell phone, which the defendant used to arrange for his mother to pick him up at the clinic.[9] The officers returned the defendant's backpack, and the defendant left.

         This interaction lasted no more than thirty to forty-five minutes. At no time during this interview did the officers advise the defendant of his Miranda rights. Additionally, the officers never handcuffed, restrained, or threatened the defendant.

         On September 5, 2014, the defendant filed a motion to suppress his statements, arguing that they were the product of a custodial interrogation during which he was not advised of his Miranda rights. On September 18 and October 8, 2014, suppression hearings were held. The court heard the testimony of the defendant, his mother, and Camp. On October 24, 2014, the court issued an oral ruling denying the defendant's motion. The court credited Camp's testimony. The court further found that the defendant was not in custody at the time of the interrogation and, therefore, concluded that he was not entitled to Miranda warnings.

         ‘‘Under our well established standard of review in connection with a motion to suppress, we will not disturb a trial court's finding of fact unless it is clearly erroneous in view of the evidence and pleadings in the whole record . . . . [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court's memorandum of decision . . . .

         ‘‘In order to establish that he was entitled to Miranda warnings, a defendant must show that he was in custody when he made the statements and that he made the statements in response to police questioning. . . . In assessing whether a person is in custody for purposes of Miranda, the ultimate inquiry is whether a reasonable person in the defendant's position would believe that there was a restraint on [his] freedom of movement of the degree associated with a formal arrest. . . . Any lesser restriction on a person's freedom of action is not significant enough to implicate the core fifth amendment concerns that Miranda sought to address. . . .

         ‘‘In [State v. Mangual, 311 Conn. 182, 85 A.3d 627 (2014)], we set forth the following nonexclusive list of factors to be considered in determining whether a suspect was in custody for purposes of Miranda: (1) the nature, extent and duration of the questioning; (2) whether the suspect was handcuffed or otherwise physically restrained; (3) whether officers explained that the suspect was free to leave or not under arrest; (4) who initiated the encounter; (5) the location of the interview; (6) the length of the detention; (7) the number of officers in the immediate vicinity of the questioning; (8) whether the officers were armed; (9) whether the officers displayed their weapons or used force of any other kind before or during questioning; and (10) the degree to which the suspect was isolated from friends, family and the public.'' (Citations omitted; internal quotation marks omitted.) State v. Arias, 322 Conn. 170, 176-77, 140 A.3d 200 (2016).

         After applying the Mangual factors to the facts in this case, we conclude that a reasonable person in the defendant's position would not have believed that he was in police custody of the degree associated with a formal arrest. The entire exchange was informal in nature and short in duration, lasting no more than thirty to forty-five minutes. Although the location of the interview secluded the defendant from the public, [10] we note that it was the defendant who requested to speak in a more private location. The officers initially suggested speaking at the Norwich Police Department but, when the defendant declined, they suggested going across the street to the cemetery. The defendant agreed to be interviewed there. He then voluntarily walked over to the back of the cemetery by himself.

         In addition, at no point during this exchange was the defendant handcuffed or otherwise physically restrained. There were only two officers present for the questioning. The officers were dressed in plain clothes, and, although they were armed, they never drew their weapons. The officers told the defendant a couple of times that no matter what he said he was free to leave at any time.[11] Although the officers put the defendant's backpack in their cruiser during the interview, we do not believe that a reasonable person in the defendant's position would have believed in these circumstances that there was a restraint on his freedom of movement of the degree associated with a formal arrest. The officers explained to the defendant that the reason they wanted to put his backpack in one of their cruisers was for safety reasons, and they only made this request after the defendant expressed his preference that they not search it for weapons. The defendant also agreed to this request. We think that a reasonable person in this situation would have believed that if he decided to end the interview, as the officers told him he could do at any time, the officers would return his backpack.

         Considering the totality of the circumstances, the court properly determined that the defendant was not in custody and, ...


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