Argued
September 6, 2018
Procedural
History
Substitute
information charging the defendant with the crimes of
burglary in the first degree, kidnapping in the second
degree, strangulation in the second degree, and assault in
the third degree, brought to the Superior Court in the
judicial district of Hartford and tried to the jury before
Bentivegna, J.; verdict and judgment of guilty of
strangulation in the second degree and assault in the third
degree, from which the defendant appealed to this court.
Affirmed.
Timothy H. Everett, with whom were Michael Edelson, certified
legal intern, and, on the brief, Andrew Ammirati, certified
legal intern, and Shaun D. Loughlin, certified legal intern,
for the appellant (defendant).
Matthew A. Weiner, assistant state's attorney, with whom,
on the brief, were Gail P. Hardy, state's attorney, and
Richard J. Rubino, senior assistant state's attorney, for
the appellee (state).
Prescott, Bright and Flynn, Js.
OPINION
BRIGHT, J.
The
primary issue in this appeal involves the admissibility at
trial of the defendant's written statement, which was
made during an unrecorded custodial interrogation at the
Enfield police station. The defendant, Christopher M. Spring,
appeals from the judgment of conviction, rendered after a
jury trial, of strangulation in the second degree in
violation of General Statutes § 53a-64bb (a) and assault
in the third degree in violation of General Statutes §
53a-61 (a) (1).[1] On appeal, the defendant claims that (1)
the court erred when it granted the state's motion to
admit his statement, which was taken in violation of General
Statutes § 54-1o, [2] during an unrecorded custodial
interrogation, because the state failed to prove that the
statement was both voluntarily given and reliable under the
totality of the circumstances, as required by § 54-1o
(h), (2) the court abused its discretion when it overruled an
objection made by the defendant regarding an inaccurate
argument made by the state about the defendant's
statement, and (3) this court should exercise its supervisory
authority over the administration of justice by ordering a
new trial in this case and by requiring the judges of our
Superior Court to instruct juries in a particular manner when
faced with statements or confessions obtained during
unrecorded custodial interrogations that violate §
54-1o. We affirm the judgment of the trial court.
The
jury reasonably could have found the following facts, which
are necessary to our review of the defendant's claims.
The Enfield police arrested the defendant on May 3, 2015, at
approximately 5:30 a.m., on multiple charges, including class
A or B felonies, following a physical altercation between the
defendant and the victim. Enfield Police Officer Mark Critz
read the defendant his Miranda[3] rights at the
time he was arrested and, again, when he was brought to the
police station, where he signed a notice of rights form at
approximately 7:23 a.m. He then was taken to lock up. Several
hours later, at approximately 1:10 p.m., the defendant was
interrogated by Detective Martin Merritt of the Enfield
Police Department. The interrogation took place at
Merritt's desk, which is in a large room with cubicles
that had walls about five feet tall, and was not video
recorded. Merritt did not readvise the defendant of his
Miranda rights because Critz had informed him that
the defendant had been provided such warnings twice already.
In addition, the defendant confirmed to Merritt that he had
been advised of his rights. Merritt asked the defendant to
explain what had happened the night before and took notes as
the defendant recounted the events leading up to his arrest.
After
the defendant finished giving his oral statement, Merritt
prepared a written statement on an Enfield Police Department
form. The defendant then reviewed, edited, initialed and
signed the statement three times below an acknowledgement
that reads: ‘‘I HAVE READ THE ABOVE STATEMENT AND
IT IS TRUE TO THE BEST OF MY KNOWLEDGE. I FULLY UNDERSTAND
THAT IF I MAKE A FALSE STATEMENT THAT IS UNTRUE AND WHICH IS
INTENDED TO MISLEAD A LAW ENFORCEMENT OFFICER IN THE
PERFORMANCE OF HIS OFFICIAL FUNCTIONS I WILL BE IN
VIOLATIONOF[GENERALSTATUTES]SECTION53A-157, CONNECTICUT
GENERAL STATUTES. A FALSE STATEMENT IS A CLASS A MISDEMEANOR,
WHICH IS PUNISHABLE UP TO 1 YEAR IN JAIL AND/OR A $1000 FINE
AND NOT MORE THAN 3 YEARS PROBATION.''
In the
statement, the defendant acknowledged, by initialing specific
sentences, that he had been advised of his rights, understood
those rights, was making the statement of his own free will,
without any threats or promises having been made, and that he
was giving the statement voluntarily. Also in the written
statement, the defendant acknowledged, in relevant part, the
following events: The defendant and others were watching
‘‘the fight'' on television, during a
party. Later, wanting to talk to the victim, the defendant
went to her residence.[4]After the defendant knocked on a window to
the apartment, the victim opened the door. Shortly
thereafter, the defendant took the victim for a ride in his
vehicle, where they immediately started to argue. The
defendant pulled over the vehicle, choked the victim with his
hands, punched her, and slapped her repeatedly. The victim
tore off the defendant's necklace, and she punched him in
the face, causing his gums to bleed. After the fight, both
the victim and the defendant had a lot of blood on them. The
defendant drove to someone's apartment, where both he and
victim cleaned up. Someone then telephoned the police. Soon
thereafter, the defendant went for a walk. The police then
arrested him. After making whatever changes to the written
statement that he thought were necessary, the defendant
initialed each change, and he signed each page of the
statement.
On
April 27, 2016, shortly before the defendant's trial
began, the state, pursuant to § 54-1o, filed a motion
seeking permission to introduce the defendant's signed
statement into evidence during its
case-in-chief.[5] In its motion, the state requested an
evidentiary hearing wherein it could establish an exception
to the custodial interrogation recording requirement under
subsections (e) and (h) of § 54-1o. See footnote 2 of
this opinion. The court held the hearing on May 2, 2016.
During
the hearing, Critz testified that he read the defendant his
Miranda rights when he arrested him in an outdoor
area at approximately 5:30 a.m. on May 3, 2015, as he had
been directed to do by his detective sergeant, who, at that
time, was talking to the victim. Critz observed that the
defendant was bleeding from his mouth at that time. Critz
also acknowledged that the defendant told him that he had
been at a party, watching the
‘‘Pacquiano'' fight. Critz further stated
that he again read the defendant his rights after he was
transported to the police station, and the defendant signed a
notice of rights form at approximately 7:23 a.m.
The
state also called Merritt, the lead detective in the
defendant's case, as a witness at the hearing. Merritt
testified that, at approximately 1:10 p.m., he spoke with the
defendant at the police station in an interview that lasted
approximately one hour, and that the defendant told him what
had happened. Thereafter, Merritt hand-wrote the
defendant's statement, which the defendant then reviewed,
and, after making several changes to the statement, the
defendant initialed the changes, and signed each of the three
pages of the document. Merritt denied that the defendant
smelled of alcohol or had slurred speech, stating that
‘‘[h]e seemed fine to me . . . .'' When
asked why he did not record electronically his interview of
the defendant, Merritt explained that they had been having
difficulties with their recording system, and he believed
that it had not been working properly at that time, but he
was not positive. He also stated that it could have been
possible that the defendant requested that the interview not
be recorded, but he had no specific recollection and did not
write down any reason for not recording the interview.
Defense counsel asked Merritt whether he had a cell phone
with recording capabilities and whether there was recording
equipment in the holding cells. Merritt responded
affirmatively to both questions. The state also called
Detective Sergeant Daniel Casale to testify. Casale stated
that he oversaw the process of the defendant's
interrogation, standing by to ensure that no issues
developed. He explained that his office was a mere twenty
feet away from Merritt's cubicle, which he could see from
his office, and that he ‘‘was bouncing back and
forth between . . . Merritt's desk and [his] office doing
paperwork . . . .'' Casale admitted to knowing that
the police had an ‘‘obligation'' to make
a video recording of the defendant's interview and
statement, and he acknowledged that he had no explanation as
to why this interview was not recorded.
Following
the close of testimony, the defendant argued that the state
had failed to establish an exception to § 54-1o, under
either subsection (e) or (h), and that the court, therefore,
should deny the state's motion to admit the
defendant's statement, which was taken in violation of
the statute. The court, ruling from the bench, stated in
relevant part: ‘‘[T]he defendant was . . . under
formal arrest. There was a postbooking statement. The
defendant was subjected to police interrogation. This was a
custodial interrogation at a police station. No electronic
recording was made. The written statement [was taken from a]
person under investigation or accused of a . . . class A or B
felony . . . . [T]he court finds by the preponderance of the
evidence that there was no compliance with the electronic
recording requirement, and . . . based on that, the statement
is presumed to be inadmissible as evidence . . . .''
The
court then considered the claimed exceptions to the statute
that had been argued by the state, particularly subsections
(e) (2) and (h) of the statute. The court found that
subsection (e), and, in particular, subsection (e) (2), did
not apply because, although there was testimony regarding a
possible problem with the electronic recording equipment in
the area where the defendant had been interrogated, there
were other recording alternatives available. The court then
analyzed the exception in subsection (h), which it referred
to as a ‘‘catchall exception, ''
examining multiple factors in its consideration of the
totality of the circumstances. Thereafter, the court found,
on the basis of its assessment of the totality of the
circumstances, ‘‘that the [defendant's]
statement was pursuant to a knowing, intelligent, and
voluntary waiver of the defendant's Miranda
rights, and that the statement was voluntarily given, and
that the statement was reliable.'' The court further
found that there was no evidence of any coercion. On the
basis of these findings, along with the ‘‘fact
that the defendant was able to read the statement and he made
corrections to the statement, and he signed the statement,
'' the court granted the state's motion to
introduce the statement during its case-in-chief.
The
defendant proceeded to trial on the amended charges of
burglary in the first degree, kidnapping in the second
degree, strangulation in the second degree, and assault in
the third degree. During the state's casein-chief, it
offered the defendant's statement into evidence through
Merritt's testimony. The defendant raised no objections
to the offer ‘‘other than those previously
noted.'' The court admitted the statement into
evidence.
The
defendant's statement was addressed by both defense
counsel and the prosecutor during closing arguments. Defense
counsel argued forcefully that the jury should disregard the
statement in its entirety given the circumstances under which
it was made and ‘‘most importantly of
all'' because it was not videotaped as required by
law. In rebuttal, the prosecutor argued that the jury should
reject defense counsel's suggestion that they ignore the
statement because ‘‘it came in without objection,
and . . . is a full exhibit.'' Defense counsel
immediately responded by interjecting,
‘‘[t]hat's not true, judge.'' The
court responded by overruling the defendant's objection.
Thereafter, the jury found the defendant guilty of
strangulation in the second degree and assault in the third
degree. It found him not guilty on the remaining two charges.
This appeal followed.
While
this appeal was pending, the defendant filed a motion for
articulation and a motion for further articulation,
requesting in each that the trial court further explain its
decision to grant the state's motion to admit into
evidence the defendant's statement. The trial court
granted the defendant's motions, further explained its
decision, and answered the specific requests for articulation
raised by the defendant. Specifically, the court articulated:
(1) Merritt's failure to record his interrogation of the
defendant was not done in bad faith, intentionally,
recklessly, or negligently; (2) Merritt's testimony was
credible, and his testimony regarding the malfunctioning of
the recording system around the time that the defendant was
arrested was not implausible; (3) there was no evidence that
the defendant actually waived his Miranda rights
prior to his interview with Merritt, only that he was advised
of those rights; (4) Merritt did not advise the defendant of
his rights for a third time because the defendant already had
been advised twice of those rights, and the defendant
willingly spoke to Merritt, waiving his Miranda
rights at that time; and (5) the defendant's statement
was voluntary and reliable as evidenced by the
defendant's review of the statement and the multiple
changes that he made to the statement, initialing each
change, and then signing each page of the statement.
Additional facts will be set forth as necessary.
I
The
defendant claims that the court erred in granting the
state's motion to admit his statement into evidence
because it was taken in violation of § 54-1o (b) and the
state failed to prove that the statement was both voluntarily
given and reliable under the totality of the circumstances,
as required by the exception found in subsection (h) of the
statute. He contends that the court conflated the
requirements of voluntariness and reliability under §
54-1o (h), thereafter finding that the state had met its
burden. The defendant also alleges, although he has made no
claim that his statement was taken in violation of
Miranda, [6] that the trial court's decision to
admit the statement has both federal and state constitutional
implications. The state argues that this is a purely
evidentiary matter involving a state statute and that the
court properly concluded that the statement was both
voluntarily given and reliable in accordance with §
54-1o (h). We agree with the state.
Before
setting forth our standard of review, we first consider
whether the defendant's claim is one of constitutional
magnitude. Our law is quite clear. Neither federal nor state
constitutional law, nor the supervisory authority of our
Supreme Court, requires the recording of custodial
interrogations and the statements made as a result thereof.
State v. Edwards, 299 Conn. 419, 444, 11 A.3d 116
(2011); State v. Lockhart, 298 Conn. 537, 542-77, 4
A.3d 1176 (2010); see also State v. James, 237 Conn.
390, 429, 678 A.2d 1338 (1996) (‘‘article first,
§ 8 [of Connecticut constitution] does not require
electronic recording in order for a confession to be
admissible at trial''). Instead, our Supreme Court in
Edwards specifically deferred ...