September 20, 2018
information charging the defendant, in three cases, with four
counts of the crime of risk of injury to a child, two counts
of the crime of sexual assault in the second degree and one
count of the crime of sexual assault in the first degree,
brought to the Superior Court in the judicial district of New
Haven, where the court, O'Keefe, J., denied the
defendant's motion to suppress certain evidence;
thereafter, the cases were tried to the jury; verdicts and
judgments of guilty of three counts of risk of injury to a
child, from which the defendant appealed to the Appellate
Court, Alvord, Keller and Dennis, Js.,
which affirmed the judgments of the trial court, and the
defendant, on the granting of certification, appealed to this
court. Reversed; new trial.
Richard Emanuel, for the appellant (defendant).
Timothy J. Sugrue, assistant state's attorney, with whom
were Seih R. Garbarsky, senior assistant state's
attorney, and, on the brief, Patrick J. Griffin, state's
attorney, for the appellee (state).
Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins,
Kahn and Ecker, Js.
Davis v. United States, 512 U.S. 452,
459-60, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the United
States Supreme Court determined that, after a defendant has
been informed of his Miranda rights, the police
officers conducting a custodial interrogation have no
obligation to stop and clarify an ambiguous invocation by the
defendant of his right to have counsel present. Instead, they
must cease interrogation only upon an objectively
unambiguous, unequivocal invocation of that right. See
id. The court recognized that this standard
"might disadvantage some suspects who- because of fear,
intimidation, lack of linguistic skills, or a variety of
other reasons-will not clearly articulate their right to
counsel although they actually want to have a lawyer
present." Id., 460.
certified appeal requires us to decide whether the
Davis standard was met in this case, and, if not,
whether a more protective prophylactic rule is required under
the Connecticut constitution. The defendant, Robert John
Purcell, appeals from the Appellate Court's judgment
affirming his conviction of three counts of risk of injury to
a child in violation of General Statutes § 53-21. We
conclude that the defendant's statements during
interrogation did not meet Davis' "clear
and unequivocal" standard so as to require suppression
of subsequent inculpatory statements under the federal
constitution. We further conclude, however, that the
Connecticut constitution does not condone a rule that could
disadvantage the most vulnerable of our citizens. We hold
that, to adequately safeguard the right against compelled
self-incrimination under article first, § 8, of the
Connecticut constitution,  police officers are required to clarify
an ambiguous request for counsel before they can continue the
interrogation. Because no such clarification was elicited in
the present case and the failure to do so was harmful, we
conclude that the defendant is entitled to a new trial.
record reveals the following undisputed facts and procedural
history. The complainant (victim) is the nephew of the
defendant by marriage. In September, 2013, the victim's
mother found pictures on the victim's Nintendo DS game
console that concerned her, including pictures of the clothed
stomachs of the defendant and the victim's father and two
pictures of circumcised penises. She deleted the pictures and
asked her husband to speak to the victim. The victim's
father spoke to him about the Catholic Church's teachings
about sexuality, which prompted the victim to acknowledge
that he had had thoughts about boys but to assert that it was
not his fault. He then stated that the defendant "has
been having sex with me." The victim's parents
reported the allegation to the police.
victim had made a similar statement concerning the defendant
to a school social worker, who reported the allegation to the
Department of Children and Families. In subsequent
interviews, the victim described several incidents that he
claimed had occurred between 2010, when he was twelve years
old, and 2013. The incidents were reported to have occurred
in public restrooms and at the defendant's home. The
incidents were said to include inappropriate touching and
October, 2013, the defendant agreed to come to the
Wallingford Police Department to discuss a complaint made
against him, but he was not made aware of the nature of the
allegations prior to arriving. Detective Michael Zerella and
another Wallingford police officer conducted the interview.
When it became apparent to the defendant that he was being
accused of engaging in sexually inappropriate conduct with
his nephew, the defendant explained incidents that he could
think of that served as the basis of the complaint but
maintained that nothing inappropriate had happened. Zerella
wondered aloud whether the defendant was "a sick,
perverted person or, or stuff, stuff accidentally
happened." Not long after this comment, the defendant
announced that things were getting "a little bit too
strange," and he terminated the interview.
November 26, 2013, the defendant was arrested pursuant to the
first of three warrants and charged with multiple counts of
both sexual assault, first and second degree, and risk of
injury to a child. Later that day, Zerella and Wallingford
Detective Sean Fairbrother conducted the custodial
interrogation that gives rise to the issues in this certified
Appellate Court's opinion accurately recounts the
following facts relating to that interrogation. "Zerella
began the interview by reading the defendant his
Miranda rights and asking him to complete a
Miranda waiver form. The defendant asked: 'I can
still, after, after, after I initial that, I can still stop
answering then?' Zerella replied: 'Oh, anytime you
want. No problem.'
the defendant completed the Miranda waiver form,
Zerella asked the defendant whether he knew why he had been
arrested. The defendant explained that he had received a
letter from the Department of Children and Families
(department) informing him that he was being investigated for
allegations of child abuse with respect to the victim. When
Zerella asked what he discussed with the department, the
defendant stated that he had never talked to anyone from the
department. Zerella asked why, and the defendant explained:
'Well, I asked my lawyer, and he said, well, just not to,
I, I think that's, I think that's all together wrong,
but that's what he said.' He went on to elaborate
that 'my lawyer knows what's going on, you know? But,
he says don't talk, I don't talk.' When Zerella
asked him how he felt about that, the defendant stated:
'Well, it's like I said, I probably wouldn't be
here now if I talked to them.' Zerella suggested that if
he had elaborated more and been more forthcoming during the
first interview, they might not be here. After some
discussion about whether and why Zerella called him a pervert
during the first interview, Zerella stated: 'Okay, well,
we could, we could go on about the last interview if you want
to, but-' The defendant interjected: '-I know, I know
. . . let's . . . let's go on right, what, what more
do you want to know?'
. . . [Zerella explained] that a judge and [a] prosecutor had
found probable cause to arrest him, the defendant observed
that it was because 'I didn't talk, that's
why.' Zerella remarked: 'Well, you did, you did talk
to me. You did tell me a few things.' The defendant
agreed but acknowledged, 'not enough, I know.' . . .
When Zerella asked the defendant to tell him some of the
stories of his encounters with the victim, the defendant
opined: 'I don't know the stories that he made
asked the defendant whether he knew the crime with which he
was charged, and the defendant replied child abuse.
Fairbrother explained that he was charged with sexual assault
and risk of injury to a child. The defendant asked whether
that means that the allegation is that he did something
sexual with the victim, and Fairbrother said that it did. The
defendant adamantly denied having sexual relations with the
victim. When the detectives pressed him about whether there
were any moments that could be misconstrued as inappropriate,
the defendant responded: 'Well, yes, there's what,
well, I, I, my lawyer said not to talk about it but, no . . .
.' The detectives [responded, 'We'll leave it up
to you' and 'Well, it's up to you'].
defendant observed that Zerella had told him that there was a
picture of him naked on the victim's Nintendo DS during
the first interview,  and he asked repeatedly whether the
picture actually existed. When Zerella suggested that the
defendant had personal knowledge that the picture existed,
the defendant insisted that he did not and that he knew about
the picture only because Zerella told him about it during the
first interview. Zerella maintained that 'there's
other, other things, there's other instances beside
that,' and, after the defendant asked what, Zerella
observed that 'you just said, there [is] stuff but my
lawyer told me not to talk about it.' The defendant
stated that he was referring to the picture. He further
asked, 'what else is there,' and opined that he
wanted to know 'what they are pressing against me.'
Thereafter, the following exchange occurred:
" '[Zerella]: Alls I got to say is, tomorrow, when
you go in to court, you're gonna look at a judge and a
prosecutor. . . . And they're gonna look at all this
stuff, all these allegations that were made against you.
. . . That it's a, it's a very, very strong case
against you. Very, very strong. They're gonna look at it
and say, listen, this, this man, because they don't know
you from Adam, but they're just gonna see you.
" '[The Defendant]: Right. Well, they're gonna
know my name.
" '[Zerella]: As, as a, as a, as a mean, as a mean
" '[The Defendant]: Right.
" '[Zerella]: In, in reality-
" '[Fairbrother]: As a predator.
" '[Zerella]: As a predator, who, who's
technically not cooperating and not saying, yeah, this is,
this is what happened, this is probably why he thinks, thinks
the way he does or-
" '[The Defendant]: -See, if 'my lawyer was
here, I'd, then I'd, we could talk. That's, you
know, that's it.
" '[Zerella]: It's up to you. You could-
" '[The Defendant]: -I know it. I know, I know, I
" '[Zerella]: You could ... (a) talk to me or you
could (b) not talk to me.
" '[The Defendant]: I know it but, I'm trying,
you know I, I'm supposed to have my lawyer here. You
" '[Zerella]: You don't, you don't have to,
" '[Fairbrother]: It's up to you.
" '[Zerella]: It's up to you, man. Some people
talk to me without one, some people want one . . . it's
all up to you, man . . . I'm just affording you that
opportunity, that's all.
" '[Fairbrother]: The problem is that, at your age,
you don't want to go to prison.
" '[The Defendant]: [indiscernible]
"' [Fairbrother]: Okay? You don't want to go to
prison. If there was some inappropriate things with this
child, something that can be explained, maybe you helped him
go to the bathroom, maybe, you know, he makes some sort of
crazy allegation or does some sort of craziness, he's
" '[Zerella]: -Maybe he-
" '[Fairbrother]: He doesn't have a hundred
percent capacity. If you're in a, now, now is the time
to talk about it, now is [the time] to get your half out
" '[Zerella]: Yeah, maybe he came at ...