Justia.com Opinion Summary: After a jury trial, Harry Gonzalez was convicted of felony murder, robbery in the first degree, and kidnapping in the first degree. On appeal, the Supreme Court reversed the judgment of the trial court, holding (1) the trial court improperly denied in part Gonzalez's motion to suppress certain statements he had made to the police because he made those statements as a result of police interrogation while in custody and without having been informed of his Miranda rights, and the error was not harmless beyond a reasonable doubt; and (2) Gonzalez's constitutional right against double jeopardy was not violated by his convictions of and separate punishments for felony murder and first degree robbery. Remanded for a new trial.
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STATE OF CONNECTICUT v. HARRY GONZALEZ
(SC 18070)
Norcott, Palmer, Zarella, McLachlan, Eveleigh, Harper and Vertefeuille, Js.*
Argued January 10—officially released September 6, 2011
James B. Streeto, assistant public defender, with
whom, on the brief, was Kent Drager, former senior
assistant public defender, for the appellant (defendant).
Rita M. Shair, senior assistant state’s attorney, with
whom, on the brief, were David I. Cohen, state’s attorney, and, on the brief, Maureen Ornousky, senior assistant state’s attorney, for the appellee (state).
Opinion
EVELEIGH, J. Following a jury trial, the defendant,
Harry Gonzalez, was convicted of one count each of
felony murder in violation of General Statutes § 53a54c, robbery in the first degree in violation of General
Statutes §§ 53a-133 and 53a-134 (a), and kidnapping in
the first degree in violation of General Statutes § 53a92 (a) (2) (b). On appeal from the judgment of conviction,1 the defendant claims that: (1) the trial court conducted an inadequate investigation into alleged juror
misconduct and improperly denied his motions to dismiss the entire panel of jurors or, alternatively, dismiss
four individual jurors; (2) the trial court improperly
denied in part his motion to suppress certain statements
that he had made to the police; (3) his constitutional
right against double jeopardy was violated by his convictions of and separate punishments for felony murder
and first degree robbery; and (4) his first degree kidnapping conviction should be overturned because the trial
court failed to instruct the jury in accordance with State
v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). We
conclude that the trial court improperly denied in part
the defendant’s motion to suppress certain statements
that he had made to the police.2 Accordingly, we reverse
the judgment of the trial court and remand the case to
that court for a new trial. We also address the merits
of the defendant’s third claim because it is likely to
arise on retrial, and conclude that the defendant’s right
against double jeopardy was not violated.
The following undisputed facts and procedural history are relevant to our resolution of this appeal. Pursuant to a warrant, on October 28, 2005, the defendant and
Jennifer Kos (Jennifer)3 were arrested for the murder of
the victim, Joanne Trautwein, which had occurred on
October 6, 2005. At the time of his arrest, the defendant
was not provided warnings in accordance with Miranda
v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).4 After arriving at the Stamford police
department, the police escorted the defendant to an
interview room in order to question him about the murder. There, Paul Guzda, a sergeant of the Stamford
police department, and Timothy Dolan, an officer of
that police department,5 were waiting with notepads
and pencils for the defendant inside the interview room,
which measured approximately twelve feet by eighteen
feet and consisted of a central table, several chairs, a
clock and a two-way mirror. The defendant initially
refused to enter the room, directed an expletive toward
Guzda, braced himself against the door, and had to
be firmly told to sit down. The defendant was then
handcuffed to a chair.
Guzda proceeded to tell the defendant that he would
be booked on the pending charges, including felony
murder, and that the police were giving him the opportunity to talk to them and to tell his side of the story.
At trial, on cross-examination, Guzda testified that he
typically used the phrase ‘‘opportunity to tell his side
of the story’’ as a way ‘‘to open up’’ suspects in the
hope that it would lead to a conversation. Guzda also
testified that, at the time, he was not certain whether
the defendant had been provided Miranda warnings,
although Guzda’s admitted goal in interviewing the
defendant was to elicit statements concerning the murder. In response, the defendant stated that he wanted
an attorney and that he did not want to say anything.
Guzda then told the defendant to ‘‘sit there and . . .
you are going to be booked in a little while.’’ Thereafter,
the officers never told the defendant that an attorney
would be obtained for him, made no effort to secure
counsel for the defendant and did not inform him that
any other statements that he made could be used against
him. The officers remained seated at the table in silence,
looking at the defendant.
Approximately sixty seconds later, the defendant
stated that he may have been many things, but that he
was not a murderer. In response, Guzda testified that
he told the defendant ‘‘look, we can’t talk to you. I
told [you] to be quiet, you asked for an attorney. And
basically the conversation was over with because he
asked for an attorney.’’ After another approximately
sixty seconds had passed, the defendant reiterated that
he was not a murderer, and that all he had wanted to
do was to find some work and that was the reason
that he and Jennifer had gone to Stamford. After this
statement, Guzda stopped the defendant and ‘‘reminded
him that he had asked for an attorney, so [the officers]
can’t talk to him since he asked for an attorney, [and
Guzda explained] that it would have to be the [defendant’s] choice to talk to [the officers] without an attorney.’’ At this point the defendant still had not been
informed of his Miranda rights. Guzda then asked the
defendant if he wanted to talk to the officers without
an attorney, and the defendant assented. Thereafter,
the defendant narrated his activity on the day of the
murder. This narration included the defendant’s statement that he previously had done some work on the
victim’s car, that he and Jennifer had gone to the victim’s
home that day, that the defendant had asked the victim
if she needed any work done on her car, and that when
the victim replied in the negative, the defendant and
Jennifer had left together. At the conclusion of the narration, Guzda asked the defendant some questions and
the interview ended. The entire interview lasted less
than one-half hour.
Prior to the start of trial, the defendant filed a motion
to suppress the statements that he had made during
the police interview. In ruling on the motion to suppress,
the issue before the trial court was whether the defendant had been subjected to interrogation when he made
the contested statements.6 In denying in part the defendant’s motion to suppress, the trial court analyzed the
officers’ interview of the defendant as consisting of
three distinct episodes and concluded that the officers
had not interrogated the defendant during these periods.7 That court also concluded, however, that Guzda’s
clarifying questions following the defendant’s narration
constituted interrogation and, accordingly, suppressed
the defendant’s statements in response to those questions. Following a jury trial, the defendant was convicted of felony murder, robbery in the first degree and
kidnapping in the first degree, and was sentenced to a
total effective sentence of eighty years incarceration.
This appeal followed. Additional facts will be set forth
as necessary.
I
The defendant claims that the trial court improperly
denied in part his motion to suppress the statements
that he made to Guzda and Dolan because he made
those statements as a result of police interrogation
while in custody and without having been informed of
his Miranda rights. Specifically, the defendant claims
that the trial court improperly concluded that he was
not subjected to interrogation, where the defendant
asserts that Guzda’s statement that ‘‘[it] was the defendant’s opportunity to tell his side of the story’’ was
the ‘‘functional equivalent’’ of interrogation.8 At oral
argument before this court, the state conceded, contrary to the argument in its brief, that Guzda’s statement
to the defendant was the functional equivalent of interrogation.9 We agree.
A
We begin by setting forth the applicable standard
of review and governing legal principles. ‘‘It is well
established that the prosecution may not use statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective
to secure the privilege against self incrimination.
Miranda v. Arizona, [supra, 384 U.S. 444]. Two threshold conditions must be satisfied in order to invoke the
warnings constitutionally required by Miranda: (1) the
defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation.
. . . State v. Turner, 267 Conn. 414, 434, 838 A.2d 947,
cert. denied, 543 U.S. 809, 125 S. Ct. 36, 160 L. Ed. 2d
12 (2004). . . .
‘‘A defendant in custody is subject to interrogation
not only in the face of express questioning by police
but also when subjected to any words or actions on
the part of the police (other than those normally attendant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response
from the suspect. . . . [State v. Canales, 281 Conn. 572,
585, 916 A.2d 767 (2007)], quoting Rhode Island v. Innis,
446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297
(1980).’’ (Citation omitted; internal quotation marks
omitted.) State v. Mullins, 288 Conn. 345, 361–62, 952
A.2d 784 (2008).
‘‘[W]hether a defendant was subjected to interrogation . . . involves a . . . two step inquiry in which the
court must determine first, the factual circumstances
of the police conduct in question, and second, whether
such conduct is normally attendant to arrest and custody or whether the police should know that it is reasonably likely to elicit an incriminating response. . . .
Because this framework is analogous to the determination of whether a defendant is in custody, the ultimate
determination, therefore, of whether a defendant
already in custody has been subjected to interrogation
also presents a mixed question of law and fact over
which our review is plenary, tempered by our scrupulous examination of the record to ascertain whether
the findings are supported by substantial evidence.’’
(Citation omitted.) Id., 364.
‘‘As a general matter, the standard of review for a
motion to suppress is well settled. A finding of fact will
not be disturbed unless it is clearly erroneous in view
of the evidence and pleadings in the whole record
. . . . [W]hen [however] a question of fact is essential
to the outcome of a particular legal determination that
implicates a defendant’s constitutional rights, and the
credibility of witnesses is not the primary issue, our
customary deference to the trial court’s factual findings
is tempered by a scrupulous examination of the record
to ascertain that the trial court’s factual findings are
supported by substantial evidence. . . . [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 [forth] in the memorandum
of decision . . . .’’ (Citations omitted; internal quotation marks omitted.) Id., 362–63.
We begin by examining the factual circumstances of
the police conduct surrounding the defendant’s contested statements. See id., 364. The determination of
whether ‘‘words or actions on the part of the police
. . . [are ones] that the police should know are reasonably likely to elicit an incriminating response from the
suspect . . . focuses primarily upon the perceptions
of the suspect, rather than the intent of the police. This
focus reflects the fact that the Miranda safeguards were
designed to vest a suspect in custody with an added
measure of protection against coercive police practices,
without regard to objective proof of the underlying
intent of the police.’’ Rhode Island v. Innis, supra, 446
U.S. 301. As previously set forth, the police escorted
the defendant into an archetypal interrogation room—
which the defendant physically resisted by barricading
himself against the door frame—for the specific purpose of interviewing him regarding the murder. Once
there, the defendant was firmly instructed to sit down
and was then handcuffed to the chair in which he was
sitting. The defendant, faced by the officers with notepads and pencils, was then apprised of the fact that he
was being charged with felony murder and was told
that the police were giving him the opportunity to tell
his side of the story. Although the defendant initially
persisted in resisting being interviewed by stating that
he wanted an attorney and that he would not speak to
the officers, the officers only told the defendant to sit
there and wait to be booked, made no effort to honor
the defendant’s request for counsel or to explain his
rights and remained seated at the table, staring at the
defendant in silence. Approximately sixty seconds later,
the defendant began making the contested statements.
As the state conceded at oral argument before this
court, Guzda’s statement to the defendant that it was
the defendant’s ‘‘opportunity to talk to us and to tell
his side’’ of the story did not constitute words or actions
on the part of the police that this court has determined
are permissible under Miranda as normally attendant
to arrest and custody. See, e.g., State v. Grant, 286 Conn.
499, 528–29, 944 A.2d 947 (officer’s factual statement to
defendant that his blood had been found at crime scene
not interrogation), cert. denied,
U.S. , 129 S. Ct.
271, 172 L. Ed. 2d 200 (2008); State v. Kirby, 280 Conn.
361, 399–400, 908 A.2d 506 (2006) (asking whether suspect understood his rights not interrogation); State v.
Evans, 203 Conn. 212, 225–27, 523 A.2d 1306 (1987)
(routine booking questions unrelated to crime and
objectively neutral not interrogation). The phrase
‘‘opportunity to talk to us and to tell us [your] side’’ of
the story also is dissimilar to statements or questions
directed at suspects that this court has determined were
permissible because they were not reasonably likely to
elicit an incriminating response from a suspect. See,
e.g., State v. Canady, 297 Conn. 322, 337–38, 998 A.2d
1135 (2010) (question not interrogation when juvenile
detention facility officer, unaware of murder investigation involving defendant, asked distraught and scared
defendant whether he was ‘‘ ‘okay’ ’’); State v. Medina,
228 Conn. 281, 291, 636 A.2d 351 (1994) (question not
interrogation when officer, unaware that crime had
been committed, asked visibly upset defendant whether
he was all right and what had happened).
Unlike the questions in the aforementioned cases,
Guzda’s statement to the defendant in the present case
that it was his opportunity to tell his side of the story
was not an objectively neutral question unrelated to
the crime. See State v. Canales, supra, 281 Conn. 589–90.
On the contrary, Guzda’s statement to the defendant
was directly related to the murder investigation for
which the defendant had been arrested, charged, and
was presently being held in custody. See id., 590 (‘‘relationship of the questions asked to the crime committed
is highly relevant’’ in determining whether police words
or conduct was reasonably likely to elicit incriminating
response [internal quotation marks omitted]). Guzda’s
statement was not objectively neutral because it implied
that the defendant was involved in the murder and
explicitly sought statements from the defendant regarding his involvement in the charged crime. In State v.
Hoeplinger, 206 Conn. 278, 287 n.6, 537 A.2d 1010
(1988), this court similarly concluded that ‘‘[t]here [was]
no question that the defendant was subject to interrogation’’ when an officer had requested that the defendant
‘‘give him a statement concerning what happened that
night’’ because, pursuant to Rhode Island v. Innis,
supra, 446 U.S. 301, police should know that such words
are reasonably likely to elicit incriminating statements.
Likewise, in State v. Green, 207 Conn. 1, 8, 540 A.2d
659 (1988), this court concluded that the defendant
therein had been subjected to police interrogation when
an officer, who had been informed of the defendant’s
involvement in a murder by other suspects, told the
defendant that ‘‘I’m aware that you have given a statement yesterday; however, is there something else you
want to tell us about this thing because it doesn’t fit with
what we know.’’ (Internal quotation marks omitted.)
Guzda’s statement to the defendant was similarly, if not
more, likely to elicit an incriminating response.
Finally, although ‘‘[t]he test as to whether a particular
question is likely to elicit an incriminating response is
objective . . . the subjective intent of the police officer
[may be] relevant [although] not conclusive . . . .’’
(Internal quotation marks omitted.) State v. Canales,
supra, 281 Conn. 590; see also State v. Green, supra,
207 Conn. 7 (officer separated defendant from his father
in order to elicit ‘‘ ‘admissions against [his] interest’ ’’).
At the suppression hearing, Guzda himself testified that
he told the defendant that it was his opportunity to tell
his side of the story as a way ‘‘to open up’’ the defendant
in the hope that it would prompt the defendant to converse about the murder. Guzda also admitted that he
had accomplished the goal of prompting the defendant
to talk. Given these admissions, Guzda obviously knew
that his words were reasonably likely to result in the
defendant making possibly incriminating statements
about the crime that he had been charged with committing.
We therefore conclude, on the basis of our scrupulous
examination of the facts presented, that Guzda’s statement to the defendant that it was the defendant’s opportunity to tell his side of the story was the functional
equivalent of interrogation because the police should
have known that the phrase was reasonably likely to
invite the defendant to respond by making possibly
incriminating statements.10 Accordingly, the trial court
improperly denied in part the defendant’s motion to
suppress when it determined that the contested statements were admissible because the defendant had not
been subjected to interrogation.
The state, despite conceding that the defendant was
in custody, was not provided Miranda warnings, and
was subjected to interrogation, contends, however, that
the interrogation produced no statements.11 Additionally, the state claims that the officers had no opportunity
to provide Miranda warnings to the defendant. We disagree with both of the state’s assertions.
We begin our analysis with the following guiding principle. When the police interrogate a custodial suspect
without first providing that suspect with the warnings
required by Miranda, there is a presumption that any
ensuing statements made by the suspect resulting from
the unwarned interrogation were compelled and must
be suppressed. Miranda v. Arizona, supra, 384 U.S.
471–72; see also Dickerson v. United States, 530 U.S.
428, 435, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000)
(‘‘[t]hose guidelines [set forth in Miranda] established
that the admissibility in evidence of any statement given
during custodial interrogation of a suspect would
depend on whether the police provided the suspect
with [the] four [Miranda] warnings’’); Oregon v. Elstad,
470 U.S. 298, 309, 310, 105 S. Ct. 1285, 84 L. Ed. 2d 222
(1985) (‘‘Miranda requires that the unwarned admission must be suppressed . . . .’’ This is true even
though ‘‘[t]he failure of police to administer Miranda
warnings does not mean that the statements received
have actually been coerced, but only that courts will
presume [that] the privilege against compulsory selfincrimination has not been intelligently exercised.’’).
We consider first the state’s contention that the interrogation produced no statements. This claim has as
its basis the view that the officers’ interview of the
defendant should be divided into independent episodes,
thereby segregating the improper custodial interrogation from the resulting effects, namely, the defendant’s
statements. We reject this claim. We previously have
concluded, and the state has conceded, that at the onset
of the interview the police improperly subjected the
defendant to custodial interrogation without the benefit
of Miranda warnings. Moreover, the state has not challenged the trial court’s decision to suppress statements
the defendant made at the end of the interview, because
those statements were the product of interrogation,
namely, Guzda’s clarifying questions. It is therefore
uncontested that the improper custodial interrogation
of the defendant, which commenced at the onset of the
interview, existed also at the conclusion of the interview. A scrupulous review of the record demonstrates
that during the intervening period, when the defendant
made the contested statements, the interrogation had
not ceased and the defendant’s rights had not been
honored.
First, the fact that approximately sixty seconds
elapsed between Guzda’s statement and the defendant’s
first contested statement, and then again between the
defendant’s first and second contested statements, does
not undermine our conclusion that the defendant made
the contested statements as a result of and in response
to Guzda’s intentional prompting of the defendant at
the onset of the interview to tell his side of the story.
Contrary to the state’s claim, the passage of approximately sixty seconds does not dictate that the defendant’s interrogation must be segregated into periods of
improper interrogation and no interrogation. Second,
although the defendant stated that he wanted an attorney, in response to his invocation he observed the officers seemingly make no effort to honor this request or
explain to him that an attorney would be obtained for
him; instead, they told him to sit and wait to be booked
and they then remained seated at the table, staring
in silence at the defendant until he began making the
contested statements. Third, although the defendant
had stated that he would not speak with the officers, his
request to remain silent was not scrupulously honored
because no steps were undertaken to conclude the
interrogation or belatedly advise the defendant of his
Miranda rights.12 Although Guzda testified that the
defendant initiated the conversation concerning his
activities on the day of the murder, and implicitly
waived his right to remain silent, Guzda had told the
defendant how to waive a right of which the officers
had not yet properly advised him. Moreover, once the
defendant commenced narrating his activity on the day
of the murder—a statement made in response to Guzda’s clarification that the defendant had to initiate the
conversation—the officers did not ascertain whether
the defendant was waiving his prior request for counsel.
The officers also never presented the defendant with
a waiver of rights form that had been in their possession
throughout the interview. The present case is thus
unlike cases wherein later statements made by a suspect are admissible because ‘‘a [subsequent] careful
and thorough administration of Miranda warnings
serve[d] to cure the condition that rendered the [prior]
unwarned statement inadmissible. [This warning cures
the condition because it] conveys the relevant information and thereafter the suspect’s choice whether to exercise his privilege to remain silent should ordinarily be
viewed as an ‘act of free will.’ ’’ Oregon v. Elstad, supra,
470 U.S. 310. Accordingly, the defendant’s statements
resulted from his being subjected to improper custodial
interrogation at the onset of the interview and, because
his rights were not honored during the intervening
period, we cannot conclude, under the facts presented,
that the defendant’s statements were not the product
of interrogation.13
We also reject the state’s second claim that the officers had no opportunity to provide Miranda warnings
to the defendant. Initially, we note that the defendant
could have been provided Miranda warnings numerous
times, including promptly upon arrest, prior to being
escorted to the interview room, immediately after being
handcuffed to the chair, or following Guzda’s statement
that the defendant was being charged with felony murder. Guzda himself admitted at the suppression hearing
that he had a Miranda rights waiver form with him in
the interview room, but that he had put it away after
the defendant stated that he wanted an attorney and
would not speak with the officers. This court has previously determined, however, that advising a custodial
suspect of his rights and then ascertaining whether he
understands those rights does not constitute interrogation under Miranda. State v. Kirby, supra, 280 Conn.
399–400. Therefore, even after the defendant attempted
to invoke his rights, the officers had an opportunity,
lasting one minute or more, to commence advising the
defendant of his Miranda rights.
The officers also failed to utilize several other opportunities to provide the defendant with proper Miranda
warnings. Following the defendant’s first contested
statement that he was not a murderer, the officers had
an approximate one minute opportunity to read the
defendant his Miranda rights. Following the defendant’s second contested statement reiterating that he
was not a murderer, the officers had yet another
momentary opportunity to provide the defendant his
Miranda rights. Lastly, prior to the defendant narrating
his activity on the day of the murder, the officers could
have read the defendant his Miranda warnings and
then secured a valid waiver. Guzda, however, used this
time to tell the defendant that the officers could not
speak with him unless he initiated the conversation.
Accordingly, the record reveals numerous instances in
which the officers had ample opportunity to provide
the defendant with Miranda warnings, but failed to
do so.
B
The state further contends that, even if the trial court
improperly admitted the defendant’s contested statement narrating his activity on the day of the murder,
any error was harmless beyond a reasonable doubt
because other evidence overwhelmingly established the
defendant’s guilt.14 The defendant disagrees, claiming
that there was not overwhelming evidence of his guilt
and that the state relied on the defendant’s narration in
order to establish his guilt. We agree with the defendant.
‘‘If statements taken in violation of Miranda are
admitted into evidence during a trial, their admission
must be reviewed in light of the harmless error doctrine.
. . . The harmless error doctrine is rooted in the fundamental purpose of the criminal justice system, namely,
to convict the guilty and acquit the innocent. . . .
Therefore, whether an error is harmful depends on its
impact on the trier of fact and the result of the case.
. . . This court has held in a number of cases that when
there is independent overwhelming evidence of guilt,
a constitutional error would be rendered harmless
beyond a reasonable doubt. . . . When an [evidentiary]
impropriety is of constitutional proportions, the state
bears the burden of proving that the error was harmless
beyond a reasonable doubt. . . . [W]e must examine
the impact of the evidence on the trier of fact and the
result of the trial. . . . If the evidence may have had
a tendency to influence the judgment of the jury, it
cannot be considered harmless. . . . That determination must be made in light of the entire record [including
the strength of the state’s case without the evidence
admitted in error].’’ (Citations omitted; internal quotation marks omitted.) State v. Mitchell, 296 Conn. 449,
459–60, 996 A.2d 251 (2010).
The jury reasonably could have found the following
additional facts relevant to the determination of
whether the admission of the defendant’s statements
was harmless error. At trial, Jennifer, testifying for the
state, stated that she was the defendant’s companion
on the day of the murder. She testified about the defendant’s activity on that day, specifically placing him at the
victim’s home both during the afternoon and evening of
the murder, and directly inculpated the defendant in
the charged crimes. On cross-examination, Jennifer
admitted that, at the time of the murder, she had been
a drug addict and an alcoholic, that she had prior convictions of larceny and assault, that she had admitted to
being a burglar and felony murderer, that she previously
had lied to the police on multiple occasions during their
investigation of the murder, and that she had agreed
to testify against the defendant because it was her only
option to save herself from eighty years of incarceration.15
Also testifying against the defendant was the victim’s
housemate, Barbara Kos (Barbara).16 Although Barbara
testified that she was present when the crimes were
committed and that she had observed a male perpetrator, she admitted during cross-examination that she had
been unable to identify the defendant as the perpetrator
from a photographic array containing his photograph,
and that she had provided a description of the perpetrator to the police that did not match that of the defendant.
Specifically, Barbara had described the perpetrator as
a male with a ‘‘noticeable beer belly,’’ and as cleanshaven. The victim’s neighbor, Carol Luders, testified
that, on the afternoon of the crime, she had encountered
a male and Jennifer inquiring about the victim. On crossexamination Luders admitted, however, that she had
failed to identify the defendant as the male that she
had seen that afternoon when presented with a photographic array containing the defendant’s photograph,
and that she, too, had described the male as cleanshaven.
The state asserts that the following evidence adduced
at trial is independent overwhelming evidence that the
defendant committed the charged crimes: (1) the testimony of Jennifer, the defendant’s companion, regarding
the defendant’s activity on the day of the murder that
inculpated the defendant in the crimes; (2) the testimony of the victim’s housemate, Barbara, who was
present when the crimes were committed and observed
the defendant; and (3) the testimony of Luders, the
neighbor, who encountered the defendant and Jennifer
inquiring about the victim on the afternoon of the
murder.
The defendant disagrees, claiming that the state cannot prove beyond a reasonable doubt that the trial
court’s admission of his narration was harmless
because the aforementioned evidence was not overwhelming evidence of his guilt. The defendant first
asserts that the only testimony directly linking him to
the murder was that of Jennifer. The defendant claims,
however, that Jennifer’s credibility was greatly
impeached by her admissions on both direct and crossexamination. The defendant further asserts that the testimony of Barbara and Luders was not independent
overwhelming evidence of his guilt. Barbara, the defendant contends, despite being an eyewitness to the crime
and having observed a male perpetrator, was unable to
identify the defendant as the perpetrator in a photographic array that contained the defendant’s photograph, and she provided to the police a description of
the perpetrator that did not match that of the defendant,
namely, that the perpetrator had a ‘‘noticeable beer
belly’’ and was clean-shaven. The defendant claims,
however, that he did not have a beer belly and that he
was not clean-shaven. The defendant instead claims
that he had a mustache, a fact that the defendant contends is confirmed by photographs from several days
prior to the murder and on the day of his arrest. Similarly, the defendant asserts that Luders also failed to
identify the defendant as the male perpetrator when
presented with a photographic array containing his photograph, and she also described the male as cleanshaven. Finally, in addition to the ambiguous testimonial evidence, the defendant points out that, although
the knife used to commit the murder had male DNA
on it, testimony demonstrated that the DNA did not
match that of the defendant.
In light of this less than overwhelming evidence, we
must next determine whether the improper admission
of the defendant’s narration may have had a tendency
to influence the judgment of the jury. First, although
the state contends that the defendant’s narration was
exculpatory, we disagree. On its face, the defendant’s
narration, by placing himself at the victim’s home that
afternoon, served to implicate him in the charged
crimes. The statement was therefore not innocuous or
unrelated to the charged conduct. See State v. Mitchell,
supra, 296 Conn. 461 (concluding that statements were
not harmful because defendant ‘‘did not confess to com-
mitting any crime or to being at or near the scene of
the crime’’). Second, even if the defendant’s statements
had been facially neutral, the state portrayed the defendant’s narration as inculpatory. For example, the prosecutor delivered the following statement to the jury
during closing argument: ‘‘But the reason—the reason
that really nails this down [that the defendant was the
male that afternoon] is the defendant admits, to [the
officers], that he’s the guy. He admits that he’s the one
that went to the mailbox and talked to [Luders] earlier
. . . that day. . . .
‘‘So . . . Luders’ description is consistent with Barbara[’s] and . . . [Jennifer] corroborates what . . .
Luders says happened, but the defendant himself
admits to the police that he’s that guy.’’ (Emphasis
added.) The state, therefore, explicitly focused the
jury’s attention on the defendant’s narration of his activity on the day of the murder and relied on that narration
in order to place the defendant at the victim’s home.
In so doing, the state also sought to use the defendant’s
statement to bolster the credibility of its witnesses by
corroborating their testimony placing the defendant at
the victim’s home.
Finally, the state’s evidence against the defendant
was not so overwhelming that we are convinced beyond
a reasonable doubt that the admission of his improperly
obtained narration was harmless. As previously set
forth herein, the state emphasized the defendant’s narration and used it to corroborate the testimony of the
state’s other witnesses, two of whom admitted on crossexamination that they had been unable to identify Jennifer’s male companion from photographic arrays, which
subsequent police testimony confirmed had contained
the defendant’s photograph. The inability of key witnesses—including the surviving victim, Barbara—to
identify the defendant in the photographic array, their
descriptions of the male suspect’s features, which differed from the defendant’s physical description of himself during the relevant time period, and the lack of the
defendant’s DNA on the knife, all weigh against the
determination that there existed overwhelming evidence of the defendant’s guilt in this case. Additionally,
the defendant’s successful effort on numerous occasions to impeach Jennifer’s credibility may have
affected the weight the jury accorded her testimony,
testimony that was central to the state’s case.
The strength of the evidence of the defendant’s guilt
is therefore weaker than in instances in which we have
held that the state’s improper use of evidence was harmless beyond a reasonable doubt. For instance, in State
v. Brunetti, 279 Conn. 39, 78, 901 A.2d 1 (2006), cert.
denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85
(2007), we concluded there was overwhelming evidence
of the defendant’s guilt when ‘‘the defendant was seen
in close proximity to the crime scene at the time of the
victim’s murder, the victim’s blood was found on the
defendant’s clothing, the defendant provided a detailed
confession explaining how and why he had murdered
the victim, a part of the defendant’s necklace was found
in the victim’s hair and the defendant sought to cover
up the crime by lying to his father about the source of
the blood on his clothing.’’ Similarly, in State v. Mitchell,
supra, 296 Conn. 462, we concluded that the state’s
evidence against the defendant was sufficiently strong
when ‘‘the defendant was found in the automobile that
the victim and [another witness] had seen leave the
scene of the assault. The car matched the color, description and, most significantly, the license plate number
given to the police. In addition, the car was stopped by
the police traveling in the direction that it was last seen
by the [other witness], specifically driving on Interstate
95, away from the scene of the assault. Furthermore, the
victim provided a prompt, unhesitating identification of
the defendant within only one hour of the attack. Her
identification of the defendant was strong evidence
against him because the victim testified that she had
had close contact with her assailant.’’ See also State v.
Bonner, 290 Conn. 468, 501, 964 A.2d 73 (2009) (overwhelming evidence of guilt when two eyewitnesses saw
defendant point gun, another witness saw defendant
flee crime scene, defendant later telephoned witness
that saw him flee and essentially confessed, and defendant confessed to crime in jail).
In light of the other evidence proffered by the state,
the improperly admitted narration, which the state
explicitly urged the jury to rely upon, may have had a
tendency to influence the judgment of the jury. Accordingly, under the facts presented, we conclude that
admitting the improperly obtained narration was not
harmless beyond a reasonable doubt.
II
Although our conclusion in part I of this opinion
requires that the case be remanded to the trial court
for a new trial, we address the defendant’s claim of
double jeopardy because the issue is likely to arise
again on remand.17 See State v. Gupta, 297 Conn. 211,
234, 998 A.2d 1085 (2010). We therefore address the
defendant’s claim that his separate convictions of and
punishments for felony murder, pursuant to § 53a-54c,18
and robbery in the first degree, pursuant to § 53a-134
(a) (1),19 violate his right against double jeopardy, where
it is alleged that both crimes involved the same aggravating fact, namely, the fatal injury to the victim. We reject
this claim and conclude that the defendant may properly
be convicted of and punished for both felony murder
and robbery in the first degree.
The following additional facts and procedural history
are relevant to our resolution of this issue. Malka Shah,
the state associate medical examiner, testified at trial
that she conducted an autopsy on the victim’s body
and determined that the victim suffered from an incise
wound to the neck, which could have been caused by
a knife, that the object that caused the wound had
severed the victim’s jugular vein, and that she died as
a result of a significant loss of blood and an air embolism
of the lung. During the robbery, the perpetrator stole
two rolls of gold dollar coins as well as some medication
from the victim’s home. By way of substitute information, the defendant was charged with the crimes of
felony murder and robbery in the first degree.20 Specifically, in the first count, the substitute information
charged the defendant with felony murder in that ‘‘on
or about the 6th day of October, 2005, the [defendant]
committed the crime of [r]obbery, and in the course
and in the furtherance of such crime he caused the
death of [the victim], in violation of [§ 53a-54c].’’ The
second count of the substitute information charged the
defendant with robbery in the first degree in that ‘‘on
or about the 6th day of October, 2005, the [defendant]
stole certain property from [the victim], and in the
course of the commission of the crime he caused serious physical injury to [the victim], in violation of
[§§ 53a-134 (a) (1) and 53a-133].’’ As previously set
forth, after a jury trial, the defendant was convicted
of the two disputed charges, along with the crime of
kidnapping in the first degree, and sentenced to a total
effective sentence of eighty years incarceration.
On appeal, the defendant claims that his separate
convictions and punishments run afoul of the prohibition against double jeopardy because the same aggravating factor, namely, the fatal injury to the victim,
forms the basis of both the charge of felony murder
and the charge of robbery in the first degree under
subsection (a) (1) of § 53a-134. Specifically, the defendant contends that an accused may only be convicted
of and punished for both felony murder and robbery
in the first degree when the accused is charged with
an aggravating factor listed in § 53a-134 (a) other than
the aggravating factor set forth in subsection (a) (1) of
§ 53a-134, for causing ‘‘serious physical injury . . . .’’21
The state disagrees, claiming that the charge of robbery
in the first degree, as actually charged against the defendant, does not constitute the same offense as felony
murder and therefore does not violate the prohibition
on double jeopardy. In the alternative, the state claims
that this court’s decision in State v. Greco, 216 Conn.
282, 579 A.2d 84 (1990), wherein we concluded that
convictions of felony murder and robbery in the first
degree did not violate the defendant’s right against double jeopardy, is dispositive of the defendant’s claim. We
agree with the state on the basis of its second claim.
We begin by setting forth the applicable standard of
review and governing legal principles. A ‘‘defendant’s
double jeopardy claim presents a question of law, over
which our review is plenary.’’ State v. Burnell, 290 Conn.
634, 642, 966 A.2d 168 (2009). ‘‘The double jeopardy
clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for
the same offense to be twice put in jeopardy of life or
limb. The double jeopardy clause [applies] to the states
through the due process clause of the fourteenth
amendment. . . . This constitutional guarantee prohibits not only multiple trials for the same offense, but
also multiple punishments for the same offense in a
single trial. . . . Although the Connecticut constitution
does not include a double jeopardy provision, the due
process guarantee of article first, § 9, of our state constitution encompasses protection against double jeopardy. . . .
‘‘Double jeopardy analysis in the context of a single
trial is a two-step process. First, the charges must arise
out of the same act or transaction. Second, it must be
determined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if
both conditions are met. . . .
‘‘Traditionally we have applied the Blockburger test
to determine whether two statutes criminalize the same
offense, thus placing a defendant prosecuted under
both statutes in double jeopardy: [W]here the same act
or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other
does not. Blockburger v. United States, 284 U.S. 299,
304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). This test is a
technical one and examines only the statutes, charging
instruments, and bill of particulars as opposed to the
evidence presented at trial.’’ (Citations omitted; internal
quotation marks omitted.) State v. Nixon, 231 Conn.
545, 549–51, 651 A.2d 1264 (1995). Significantly, ‘‘[t]he
Blockburger rule is not controlling when the legislative
intent [permitting a defendant to be prosecuted under
both statutes] is clear from the face of the statute or the
legislative history.’’ (Internal quotation marks omitted.)
Id., 555, quoting Garrett v. United States, 471 U.S. 773,
779, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985). This is
because ‘‘[t]he role of the constitutional guarantee
[against double jeopardy] is limited to assuring that the
court does not exceed its legislative authorization by
imposing multiple punishments for the same offense.
. . . The issue, though essentially constitutional,
becomes one of statutory construction.’’ (Citation omitted; internal quotation marks omitted.) State v. Greco,
supra, 216 Conn. 290.
In the present case, it is undisputed that each of the
crimes with which the defendant was charged arose out
of the same transaction. ‘‘Thus, the question is whether
robbery in the first degree . . . and felony murder
based on the predicate [offense of robbery] are the
same offense for the purposes of double jeopardy analysis.’’ Id., 291. In Greco, the defendant was charged pursu-
ant to a three count substitute information with felony
murder, the predicate offenses being robbery of the
victim and burglary of the victim’s home; id., 284; robbery in the first degree under subsection (a) (2) of § 53a143 for being armed with a deadly weapon, and burglary
in the first degree. Id., 283–84. On appeal, the defendant
in that case claimed that the prohibition on double
jeopardy prevented the state from punishing him for
felony murder, robbery in the first degree and burglary
in the first degree. Id., 287–88. This court disagreed,
concluding that ‘‘the double jeopardy clause would not
bar the [trial] court from imposing consecutive sentences upon the defendant for the felony murder conviction
and for the first degree robbery and first degree burglary
convictions . . . .’’ Id., 288.
In reaching our conclusion in Greco, we first analyzed
the charged offenses under the Blockburger test and
‘‘conclude[d] that first degree robbery and first degree
burglary constitute the same offense as felony murder
under that test, where the felony murder count alleges
‘robbery and burglary’ as the predicate offenses.’’ Id.,
291. This conclusion rested on our determination that
‘‘there are no elements of first degree robbery and first
degree burglary which are not also elements of felony
murder when the felony murder count alleges ‘robbery
and burglary’ as the predicate offenses . . . .’’22 Id., 292.
Although robbery in the first degree and burglary in
the first degree constituted the same offense as felony
murder when the predicate offenses for felony murder
were burglary and robbery, ‘‘[t]he application of the
Blockburger test, however, does not end our analysis
of the double jeopardy issue. . . . Where . . . a legislature specifically authorizes cumulative punishment
under two statutes, regardless of whether those two
statutes proscribe the same conduct under Blockburger,
a court’s task of statutory construction is at an end and
the prosecutor may seek and the trial court or jury may
impose cumulative punishment under such statutes in
a single trial.’’ (Citations omitted; internal quotation
marks omitted.) Id., 293.
This court therefore looked to the language, structure
and legislative history of § 53a-54c to determine
whether the legislature had intended multiple punishments for felony murder and the predicate offenses of
robbery and burglary. Id., 293–98. On the basis of this
examination, we ultimately concluded in Greco ‘‘that
the legislature clearly intended multiple punishments
for felony murder and the underlying predicate offenses
of robbery and burglary.’’ Id., 297. Accordingly, the
defendant in that case could properly be convicted of
and punished for felony murder with predicate offenses
of robbery and burglary, as well as robbery in the first
degree and burglary in the first degree. Id., 288–89.
We conclude that this court’s decision in Greco is
dispositive of the defendant’s claim of double jeopardy
in the present case. Similar to the defendant in Greco,
the defendant in the present case was charged, convicted and punished for the crimes of felony murder,
with the underlying predicate crime being robbery, and
robbery in the first degree. Although the defendant in
Greco was charged with first degree robbery under the
aggravating factor of being armed with a deadly
weapon, as set forth in subsection (a) (2) of § 53a-134;
id., 283; and the defendant in the present case was
charged pursuant to § 53a-134 (a) (1) for causing serious
physical injury to the victim, our analysis of the double
jeopardy issue in Greco did not depend on the exact
aggravating factor levied against the defendant. See id.
Indeed, in that case we agreed with the defendant that,
under the Blockburger test, the crimes of robbery and
burglary in the first degree were the same offense as
felony murder when the predicate offenses for felony
murder were robbery and burglary. Id., 292. Similarly,
the crimes with which the defendant in the present case
was charged, namely, robbery in the first degree and
felony murder with the predicate offense of robbery,
constitute the same offense for the same reasoning. See
id.; see also State v. Morin, 180 Conn. 599, 601–605,
430 A.2d 1297 (1980). Although this court determined
in Greco that the charged crimes constituted the same
offense under the Blockburger test, the prohibition
against double jeopardy was not violated in Greco
because the legislature clearly intended to permit the
state to charge, the jury to convict, and the trial court
to sentence, that defendant for the crimes of felony
murder with the predicate offenses of robbery and burglary, and the crimes of robbery and burglary in the
first degree. State v. Greco, supra, 216 Conn. 293–98.
We see no reason in the present case to deviate from our
well settled jurisprudence. Accordingly, the defendant
may properly be convicted of and punished for the
crimes of felony murder with the predicate offense of
robbery, and the crime of robbery in the first degree
under § 53a-134 (a) (1).
The judgment is reversed and the case is remanded
for a new trial.
In this opinion PALMER, HARPER and VERTEFEUILLE, Js., concurred.
* This appeal was originally argued before a panel of this court consisting
of Justices Norcott, Palmer, Zarella, McLachlan, Eveleigh and Vertefeuille.
Thereafter Justice Harper was added to the panel. Justice Harper has read
the record and briefs, listened to a recording of the oral argument and
participated in the resolution of this case.
1
The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b).
2
Because we reverse the judgment of conviction on the basis of the
defendant’s suppression claim, we do not reach the defendant’s additional
claims on appeal, other than his double jeopardy claim.
3
We note that, because Jennifer Kos shares a surname with another
witness in the present case, Barbara Kos, we refer in this opinion to both
Jennifer Kos and Barbara Kos by their first names for clarity.
4
‘‘Prior to any questioning, the person must be warned that he has a right
to remain silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an attorney, either
retained or appointed.’’ Miranda v. Arizona, supra, 384 U.S. 444. Jennifer,
who was separately transported to the Stamford police department, was
provided Miranda warnings en route.
5
We refer herein to Guzda and Dolan collectively as the officers, and
individually by name where necessary.
6
The state had conceded that the defendant was in custody and had not
been provided Miranda warnings before he made the contested statements.
7
According to the trial court, the first period began when Guzda explained
why the defendant was at the police department, and ended with the defendant stating that he wanted an attorney. The second period began approximately one minute later when the defendant stated that he was not a
murderer, and ended when Guzda silenced him. The third period, which
contained the defendant’s narration, began approximately one minute later
when the defendant again stated that he was not a murderer and Guzda
explained that if the defendant wanted to speak with the officers, he would
have to initiate the conversation.
8
See Rhode Island v. Innis, 446 U.S. 291, 300–301, 100 S. Ct. 1682, 64 L.
Ed. 2d 297 (1980) (interrogation under Miranda encompasses both express
questioning and its functional equivalent).
9
In its written argument to this court, the state previously had claimed
that Guzda’s statement merely was a preliminary comment and permissible
under Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed.
2d 297 (1980), as the type of conduct that is normally attendant to arrest.
10
We note that our conclusion on this issue is consistent with the decisions
of courts of several of our sister states holding that telling a suspect that
it is his opportunity to tell his side of the story constitutes the functional
equivalent of interrogation. See People v. Wood, 135 P.3d 744, 751–52 (Colo.
2006); State v. Monroe, 103 Idaho 129, 130, 645 P.2d 363 (1982); State v.
Herbert, 277 Kan. 61, 70, 82 P.3d 470 (2004); State v. Doughty, 472 N.W.2d
299, 303 (Minn. 1991); State v. Lynch, 477 N.W.2d 743, 746 (Minn. App. 1991);
State v. Williams, 6 Ohio St. 3d 281, 290, 452 N.E.2d 1323 (1983); State v.
Kerby, 162 Ohio App. 3d 353, 368, 833 N.E.2d 757 (2005); State v. Crawford,
73 Or. App. 53, 58, 698 P.2d 40 (1985); State v. Barmon, 67 Or. App. 369,
376–77, 679 P.2d 888, petition for review denied, 297 Or. 227, 683 P.2d 91
(1984); State v. McDade, 44 Or. App. 269, 273, 605 P.2d 752 (1980); but see
State v. Reeves, 696 So. 2d 226, 230 (La. App. 1997); People v. White, 10
N.Y.3d 286, 290, 886 N.E.2d 156, 856 N.Y.S.2d 534 (2008); Commonwealth
v. Franklin, 438 Pa. 411, 415–16, 265 A.2d 361 (1970). We note, however,
that in the three instances in which our sister states have reached a decision
contrary to our holding in the present case, dissenting justices would have
concluded that the defendant was subjected to interrogation. See State v.
Reeves, supra, 234 (Thibodeaux, J., dissenting); People v. White, supra, 294
(Pigott, J., dissenting); Commonwealth v. Franklin, supra, 422 (Roberts,
J., dissenting).
11
In support of this claim, the state relies on the trial court’s division of
the officers’ interview of the defendant into three distinct episodes. See
footnote 7 of this opinion. Under this approach, the state contends that the
improper interrogation is confined to the first episode, in which the defendant made no statement, and that the two subsequent episodes, independent
of the improper interrogation, therefore contain admissible statements.
12
‘‘[T]he admissibility of statements obtained after the person in custody
has decided to remain silent depends under Miranda on whether his ‘right
to cut off questioning’ was ‘scrupulously honored.’ ’’ Michigan v. Mosley,
423 U.S. 96, 104, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975).
13
We disagree with the dissent’s contention that the majority opinion
reaches a conclusion ‘‘belied by the facts and the law, and represents an
unwarranted extension of the principles of Miranda such that its decision
will inject confusion into our case law.’’ We also disagree with the dissent’s
claims that the majority opinion fails to explain our reasoning, fails to cite
authority, and fails to provide adequate guidance to the courts or law
enforcement.
First, we disagree that the majority opinion belies the facts of the case.
In the majority’s view, the dissent parses the facts without considering
the broader circumstances demonstrating that the defendant’s statements
resulted from improper custodial interrogation. Specifically, we reiterate
the facts that the defendant was in custody and taken to an interrogation
room, handcuffed to a chair, and never apprised of his rights; that Guzda,
with the intent to prompt the defendant to speak about the murder, then
posed a question to the defendant that was the functional equivalent of
interrogation; and that the officers, in response to the defendant’s attempt
to invoke his right to remain silent and have counsel present, simply told
the defendant to sit there and wait to be booked, and then stared at the
defendant in silence until he made his first statement.
Second, we disagree with the dissent that the majority opinion is inconsistent with our case law or an unwarranted extension of it. The majority
opinion’s conclusion merely applies the requirement that a suspect’s
unwarned statements made in response to improper custodial interrogation
are inadmissible.
Third, we disagree that the opinion fails to explain our reasoning. To the
contrary, the majority opinion’s reasoning sets forth that the first and second
statements at issue were made in response to the question posed by Guzda
at the beginning of the interrogation. As to the first statement, only sixty
seconds had elapsed since Guzda’s question, and the officers’ admonition
to the defendant to remain seated and to wait to be booked did not demonstrate that the interrogation had ended when the officers remained seated
with pencils and pads of paper at the ready, staring at the defendant. As to
the second statement that the dissent focuses on, this statement occurred
only an approximate sixty seconds after defendant’s first statement, and
although the officers had told the defendant in the interim ‘‘to be quiet,’’
this admonishment could not have served to end the interrogation as it
would have been meaningless to the defendant because he had not been
advised that, pursuant to Miranda, anything further that he said could be
used against him. The present case is thus unlike State v. Canales, supra, 281
Conn. 588–92, because the defendant here had not been provided Miranda
warnings prior to the interrogation commencing and thus would not have
known that the invocation of the right to remain silent concluded the interrogation and rendered any of his subsequent statements admissible as a waiver
of that right. Canales is therefore distinguishable on the basis that: (1) the
suspect there was provided Miranda warnings at the police station prior
to being interviewed; (2) the suspect clearly commenced a discussion with
the officer by asking him a question after previously having invoked her
rights; and (3) the suspect’s later statements were not the product of interrogation and were admissible because she validly waived her rights because
she had been properly apprised of them. See State v. Shifflett, 199 Conn.
718, 731–32, 508 A.2d 748 (1986) (‘‘Absent an express waiver, the prosecution
bears a heavy burden to demonstrate that the defendant voluntarily, knowingly and intelligently waived his right to remain silent and his right to
counsel during custodial interrogation. . . . As in every case, the waiver
must have been made with a full awareness both of the nature of the right
being abandoned and the consequences of the decision to abandon it. . . .
Thus, while an express written or oral statement of waiver . . . is not
inevitably either necessary or sufficient to establish waiver of Miranda
rights . . . the state must demonstrate: (1) that the defendant understood
his rights, and (2) that the defendant’s course of conduct indicated that he
did, in fact, waive those rights.’’ [Citations omitted; emphasis omitted; internal quotation marks omitted.]).
Fourth, we disagree that this opinion lacks sufficient citation to authority.
In our view, the majority opinion adequately surveys our case law on the
issue of the admissibility of statements obtained as a result of improper
custodial interrogation and a resort to federal decisions applying the same
principles is unnecessary. Fifth, we disagree that the opinion fails to ‘‘provide
any rule or principle to guide courts’’ as to when an interrogation has ended.
We decline to create a bright line rule or set of conditions that dictate when
an interrogation commences or concludes and instead affirm that ‘‘whether
a [custodial] defendant was subjected to interrogation . . . involves a . . .
two step inquiry in which the court must determine first, the factual circumstances of the police conduct in question, and second, whether such conduct
is normally attendant to arrest and custody or whether the police should
know that it is reasonably likely to elicit an incriminating response.’’ State
v. Mullins, supra, 288 Conn. 364. In performing this inquiry, we believe that
the current standard of review as to whether a defendant already in custody
has been subject to improper interrogation, which is a mixed question of law
and fact, is the proper standard, ‘‘tempered by our scrupulous examination of
the record to ascertain whether the findings are supported by substantial
evidence.’’ Id.
14
Neither party specifically addresses whether the improper admission
of the defendant’s first two contested statements was harmful. In accordance
with our conclusions that the two statements resulted from an improper
custodial interrogation and that the admission of the defendant’s narration
was not harmless beyond a reasonable doubt, we also conclude that the
admission of the defendant’s first two statements was harmful, because
they also give rise to the inference that the defendant was present at the
victim’s home, even if he denied committing the murder.
15
Pursuant to a plea agreement, Jennifer received ten years incarceration.
The subsequent police investigation determined that there was no familial relationship between Jennifer and Barbara.
17
The defendant failed to raise this claim at trial. He therefore seeks
review of his unpreserved claim pursuant to State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989). Because the record is adequate for our
review in that it is undisputed that each of the crimes with which the
defendant was charged arose out of the same transaction and the defendant’s
claim implicates his constitutional right against double jeopardy, we consider
the merits of his claim.
18
General Statutes § 53a-54c provides in relevant part: ‘‘A person is guilty
of murder when, acting either alone or with one or more persons, he commits
or attempts to commit robbery . . . in the first degree . . . and, in the
course of and in furtherance of such crime . . . he, or another participant,
if any, causes the death of a person other than one of the participants . . . .’’
19
General Statutes § 53a-134 provides in relevant part: ‘‘(a) A person is
guilty of robbery in the first degree when, in the course of the commission
of the crime of robbery as defined in section 53a-133 or of immediate flight
therefrom, he or another participant in the crime: (1) Causes serious physical
injury to any person who is not a participant in the crime . . . .’’
20
The defendant was also charged with kidnapping in the first degree,
which is not relevant to our determination of this issue.
21
In addition to the aggravating factor set forth in subsection (a) (1) of
§ 53a-134 of causing serious physical injury to a person who is not a participant in the crime, a person may be guilty of robbery in the first degree if
the person: (1) was armed with a deadly weapon; General Statutes § 53a134 (a) (2); (2) used or threatened the use of a dangerous instrument; General
Statutes § 53a-134 (a) (3); or (3) displayed or threatened the use of what
the person represented by his words or conduct to be a firearm. General
Statutes § 53a-134 (a) (4). Under the defendant’s reasoning, an accused may
properly be convicted of and punished for felony murder and robbery in
the first degree without violating the prohibition on double jeopardy because
the aggravating factors under subsections (a) (2), (a) (3) and (a) (4) of
§ 53a-134, are unlike the aggravating factor in § 53a-134 (a) (1), which forms
the basis of a felony murder charge, namely, a fatal injury.
22
We determined that this conclusion was dictated by our decision in
State v. Morin, 180 Conn. 599, 601–605, 430 A.2d 1297 (1980), wherein we
concluded that robbery in the first degree and burglary in the first degree
were the lesser included offenses of felony murder.
16
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