Petition — Stankowski v. Connecticut

| Oitiee Supreme Court, U.S.

FILED

ad

JUL 22 1981

NO. ALEXANDER L. STEVAS,

In The

Supreme Court Of The United States

OCTOBER TERM, 1981

GARY STANKOWSKI

Petitioner

V.

STATE OF CONNECTICUT

Respondent

Petition For A Writ Of Certiorari

To The Supreme Court For The

State Of Connecticut

JOSEPH F. KEEFE, ESQ.

Smith & Keefe

179 Water Street

Torrington, CT 06790

(203) 482-7651

Counsel for the Petitioner

QUESTIONS PRESENTED

I. Whether the Connecticut Supreme Court erred in

approving an instruction to the trial jury on the issue of

intent that every person is presumed to intend the

natural and necessary consequences of his acts as that

instruction to the trial jury impermissibly shifted the

burden of proof to the Petitioner and thereby violated

his constitutional protection of the presumption of

innocence and the due process of law as guaranteed by

the Fourteenth Amendment to the United States Consti-

tution.

II. Whether the Connecticut Supreme Court erred in

approving the Trial Court’s exclusion of exculpatory,

relevant and material evidence of a defense witness.

III. Whether the Connecticut Supreme Court erred

in approving the admission of unwarned statements of

the Petitioner when uttered in a custodial situation and

when there was a substantial issue as to their voluntari-

ness.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTEDPDlr..́ . . i

TABLE OF CASES............cssesccccscccscescees iv

WWW ccs eneecdedecccccccscccccccccccece 2

e „„ „„ 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVEDPpͥVDPʒñP rr 3

STATEMENT OF THE CAS Ewu... 5

REASONS FOR GRANTING THE WRIT............ 8

I. THE CONNECTICUT SUPREME COURT

: ERRED IN APPROVING INSTRUCTIONS TO

THE TRIAL JURY ON THE ISSUE OF

INTENT THAT “EVERY PERSON IS PRE-

SUMED TO INTEND THE NATURAL AND

NECESSARY CONSEQUENCES OF HIS

ACTS” AS THOSE INSTRUCTIONS IM-

PERMISSIBLY SHIFTED THE BURDEN OF

PROOF TO THE PETITIONER, VIOLATING

HIS PRESUMPTION OF INNOCENCE AND

INVADING THE FACT-FINDING FUNC-

„„ BOE DUS ccc ccccccccccccccccccccces 8

II. THE CONNECTICUT SUPREME COURT

ERRED IN NOT REVERSING THE PETI-

TIONER’S CONVICTION DUE TO THE

TRIAL COURT’S EXCLUSION OF RELE-

VANT, MATERIAL AND EXCULPATORY

EVIDENCE OF A DEFENSE WITNESS...... 14

III. THE CONNECTICUT SUPREME COURT

ERRED IN APPROVING THE ADMISSION

OF UNWARNED STATEMENTS TAKEN IN

A CUSTODIAL SITUATION WHEN THERE

WAS A SUBSTANTIAL ISSUE AS TO

THEIk VOLUNTARINESS AND VIOLATED

THE PETITIONER’S CONSTITUTIONAL

. „ „ 16

Gee eee tees 22

/ ˙ ( oon 1A

TABLE OF AUTHORITIES

Page

CASES:

Blackburn u. Alabama, 361 U.S. 199, 4 L. Ed. 2d

242, 80 S. Ct. 274 (1960 ))))))0 . 19, 20

Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed.

else 15

Commonwealth v. Smith, 470 Pa. 220, 368 A. 2d

eee ...e eee 18, 19

Culombe v. Connecticut, 367 U. S. 568, 6 L. Ed.

2d 1037, 81 S. Ct. 1860 (1961). 8, 18, 19, 21

Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d

347, 94 S. Ct. 1005 (19740 J)) 15

In Re Winship, 397 U.S. 358, 25 L. Ed. 2d 368,

„ GROIN 6% o's dv ccccescncasbeges 9

Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d

694, 86 S. Ct. 1602 (1966)............. 8, 16, 20, 21

Morissette v. United States, 342 U.S. 246, 96

L. Ed. 288, 72 S. Ct. 240 (1952).............- 9, 12

Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d

508, 95 S. Ct. 1881 (1975õ·ubu .. .. 9. 10

Patterson v. New York, 432 U.S. 197, 53 L. Ed.

2d 281, 97 S. Ct. 319 (1977 ᷣ/.ʒ . . 10

Pea v. United States, 130 U.S. App. D.C. 66, 397

e wed cond sccesdheceeatcuse 20

People v. Silver, 39 N.Y. 2d 99, 346 N. E. 2d

811, 382 NYS 2d 972 (1976 )).. 15

iv

Rogers v. Richmond, 365 U.S. 534, 5 L. Ed. 2d

760, 81 S. Ct. 735 (1961)))). 19

Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed.

2d 39, 99 S. Ct. 1042 (1979)....8, 9, 10, 11, 12, 13, 14

State v. Arroyo, 41 Conn. L.J. 39, p. 6

OR bid s'nd acccsccpcccestdcemededese vee 13

State v. Brokaw, 42 Conn. L.J. No. 31, p. 9

reren 13

State v. Farrow, 116 N. H. 731 (1976), 366 A. 2d

ir esch 66 6 6 15

State v. Harrison, 178 Conn. 689, 425 A. 2d 111

State v. Moye, 177 Conn. 487, 418 A. 2d 870

(1979), cert. granted, judgment vacated and

remanded No. 79-%74, 48 U.S.L.W. 3240, Oct.

9, 1979, 41 Conn. L.J. No. 25, p. 14 (12/18/79)

9, 10, 11, 12, 13

State v. Perez, 41 Conn. L.J. No. 52, p. 12

relate 13

State v. Theriault, 42 Conn. L. J. No. 22, p. 8

ene de e dee 13

State v. Truppi, 42 Conn. L. J. No. 25, p. 1

State v. Vasques, 42 Conn. L. J. No. 8, p. 36

.. 13

Page

Stewart v. Cowan, 528 F.2d 79 (6th Cir. 1976).... 15

United States v. Nixon, 418 U.S. 683, 41 L. Ed.

2d 1039, 94 S. Ct. 3090 (1974)............ 8, 15, 16

United States uv. Powe, 591 F.2d 833 (D.C. Cir.

eren 17, 19

United States v. United States Gypsum Co., 438

U.S. 422, 57 L. Ed. 2d 854, 98 S. Ct. 2864

rel eee 9. 12

Washington v. Texas, 388 U.S. 14, 18 L. Ed. 2d

1019, 87 S. Ct. 1920 (19867)... 8, 15

STATUTES:

Conn. Gen. Stat. Section 53a-54ala).............. 4, 5

NO.

In The

Supreme Cont Of The United States

OCTOBER TERM, 1981

GARY STANKOWSKI

Petitioner

V.

STATE OF CONNECTICUT

Respondent

Petition For A Writ Of Certiorari

To The Supreme Court For The

State Of Connecticut

TO THE HONORABLE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

The above-named Petitioner respectfully prays that

a Writ of Certiorari issue to review the judgment and

opinion of the Supreme Court for the State of Connecti-

cut entered in this proceeding on May 12, 1981, rehear-

ing denied May 28, 1981.

issued on May 28, 1981. The Petition for Certiorari was

filed within sixty (60) days of the judgment on May 28,

1981. This Court’s jurisdiction is invoked under 28

U.S.C. Section 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

FIFTH AMENDMENT

No person shall be held to answer for a capital, or

otherwise infamous crime, unless or a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or in public danger; nor shall any

person be subject for the same offense to be twice put

in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public

use; without just compensation.

SIXTH AMENDMENT

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been pre-

viously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defense.

FOURTEENTH AMENDMENT

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any

law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, witbout

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

3

Connecticut General Statutes (Revision of 1968), Sec-

tion 53a-54a:

(a) A person is guilty of murder when, with intent to

cause the death of another person, he causes the death

of such person or of a third person or causes a suicide

by force, duress or deception; except that in any prose-

cution under this subsection, it shall be an affirmative

defense that the defendant acted under the influence of

extreme emotional disturbance for which there was a

reasonable explanation of excuse, the reasonableness of

which is to be determined from the viewpoint of a

person in the defendant’s situation under the circum-

‘stances as the defendant believed them to be, provided

nothing contained in this subsection shall constitute a

defense to a prosecution for, or preclude a conviction of,

manslaughter in the first degree or any other crime.

(b) Evidence that the defendant suffered from a

mental disease, mental defect or other mental

abnormality is admissible, in a prosecution under sub-

section (a), on the question of whether the defendant

acted with intent to cause the death of another person.

(c) Murder is punishable as a Class A felony unless

it is a capital felony and the death penalty is imposed as

provided by section 53a-46a.

STATEMENT OF THE CASE

The Petitioner, Gary Stankowski, was arrested for

murder on August 25, 1977, and on September 28, 1977

was indicted for murder, in violation of Conn. Gen. Stat.

Section 53a-54a(a).

On April 4, 1978, the Petitioner filed a Motion to

Suppress Oral Statements taken from him by the Con-

necticut State Police. The motion was heard at the time

that the oral statements were offered as evidence during

his trial, which motion was denied by the Trial Court on

April 21, 1978. See Appendix (5), p. 45A and Appendix

(6), p. 47A. A jury of twelve returned a verdict of guilty

as charged in the indictment. On June 29, 1978 the

Petitioner was sentenced to prison for a term of not less

than twelve and one-half years, nor more than life. On

July 17, 1978 the Petitioner filed a timely appeal to the

Connecticut Supreme Court which Court affirmed his

conviction on May 12, 1981 and denied a rehearing on

May 28, 1981. See Appendix (1) and Appendix (2).

On the evening of August 25, 1977, at about 11:45

P.M., the Colchester State Police Barracks received a

phone call that an accident had taken place at the Stan-

kowski residence on Falls Road in the Town of Moodus.

The State Police found the Petitioner in an extremely

distraught condition, evidencing an intent to take his

own life with a razor blade. The Petitioner was subdued,

handcuffed and strapped face down onto a stretcher,

where he remained until transported to the Colchester

Barracks by Trooper Horan. A State Police sergeant

testified that in his opinion the Petitioner was under the

influence of alcohol. Other witnesses testified that all of

the people present at the Petitioner's residence were

drinking and smoking “pot”. The Petitioner and the

decedent and a group of young people had spent the

evening together and in the course of the evening had

ingested a large amount of alcohol and smoked mari-

juana. They ended up in a loft over the Petitioner's

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1

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peti

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weight. The State-offered testimony of a toxicologist

indicated that the defendant’s blood level at about mid-

night would have been 0.21. Testimony from the police

officers who first arrived at the scene identified that the

defendant was under the influence of alcohol and/or

drugs, and was in traumatic shock over the incident

that had just happened. He repeatedly stated to the

police that the shooting was an accident. State Trooper

Horan testified that he remembered many exculpatory

ns to the Petitioner, but he could not recall bring-

ing them to the attention of his superiors. Trooper

Horan testified that the Petitioner told him that he

didn’t ki »w the gun was loaded.”

At the close of the State’s case, the Petitioner made

an offer of proof concerning his witness, Stephen Stan-

kowski. Stephen Stankowski would have testified that

he, unbeknownst to the Petitioner had loaded the

shotgun in question, which evidence was highly exculpa-

tory nature. Prior to said offer, the Petitioner's

six year old male, Stephen Stankowski was of average

maturity, capable of receiving concrete impressions, able

to recollect and narrate intelligently, and was strongly

motivated to tell the truth. The Trial Court excluded

this testimony on the basis of an evidentiary ruling. The

Connecticut Supreme Court did not address itself to the

constitutional issues. See State v. Stankowski, XLII,

Conn. L.J. No., 465 at pp. 11-12, Appendix (1), pp. 14A-

15A and Petitioner’s Motion for Reargument, Appendix

(4), p. 48A.

REASONS FOR GRANTING THE WRIT

The decision rendered by the Connecticut Supreme

Court concerning the Trial Court’s Charge to the Jury

on the issue of intent is probably not in accord with the

applicable decision of this Court in Sandstrom v.

Montana, 442 U.S. 510 (1979) and the Connecticut

Supreme Court’s approval of the Trial Court’s exclusion

of the testimony of a defense witness is probably not in

accord with the applicable decisions of this Court in

Washington v. Texas, 388 U.S. 14 (1967) and United

States v. Nixon, 418 U.S. 683 (1974) and the Connecti-

cut Supreme Court’s approval of the Trial Court’s

admission of the Petitioner's statements made while in

custody is probably not in accord with the decisions of

this Court in Culombe v. Connecticut, 367 U.S. 568

(1961) and Miranda v. Arizona, 384 U.S. 436 (1966).

I. THE CONNECTICUT SUPREME COURT

ERRED IN APPROVING INSTRUCTIONS

TO THE TRIAL JURY ON THE ISSUE OF

INTENT THAT “EVERY PERSON IS PRE-

SUMED TO INTEND THE NATURAL AND

NECESSARY CONSEQUENCES OF HIS

ACTS” AS THOSE INSTRUCTIONS IMPER-

MISSIBLY SHIFTED THE BURDEN OF

PROOF TO THE PETITIONER, VIOLATING

HIS PRESUMPTION OF INNOCENCE AND

INVADING THE FACT-FINDING FUNC-

TION OF THE JURY.

The Connecticut Supreme Court approved the Trial

Court’s instruction to the jury on four separate occa-

sions that “every person is presumed to intend the

natural and necessary consequences of his acts.“ The

relevant portions of tho charge are set forth in

Appendix (3). In the Petitioner’s case, intent was the

critical issue, and the Court so stated to the jury in

connection with its charge. See Appendix (3), pp. 36A,

41A-42A. In fact, the Petitioner's case hinged on the

issue of intent, and the Connecticut Supreme Court

noted that “...there was not overwhelming evidence to

support the finding of the requisite intent, and thus the

defendant's guilt..."". State v. Stankowski, 42 Conn. L. J.

No. 36 P. 5 at 7 (May 12, 1980), Appendix (1), p. 6A.

The Trial Court’s instruction on intent, an essential

element of the crime of murder, that the law presumes

that person intends the ordinary consequences of his

acts violates the defendant's rights under the Due

Process Clause of the Fourteenth Amendment to the

Constitution of the United States by shifting the burden

of proof to the accused on the issue of intent. Sand-

strom v. Montana, 442 U.S. 510 (1979). The invalidity of

this instruction was recognized by the Connecticut

Supreme Court by its reversal of State u. Moye, 177

Conn. 487, 418 A.2d 870 (1979), cert. granted, judgment

vacated and remanded No. 79-274, 48 U.S.L.W. 3240

(Oct. 9, 1979), and reversed in 41 Conn. L.J. No. 25, p.

14 (12/18/79). This type of instruction on intent had

previously been expressly disapproved by this Court in

United States v. United States Gypsum Co., 438 U.S.

422 (1978), and Morissette uv. United States, 342 U.S.

246 (1952). However, the Connecticut Supreme Court

approved this type of instruction in Moye, supra,

rejecting the constitutional arguments later mandated

by Sandstrom, supra.

In the Petitioner's trial, the repeated instructions on

intent infringed on his right to a jury determination on

the issue of intent and the State’s duty to prove it

beyond a reasonable doubt. See Sandstrom, supra, U.S.

Gypsum Co., supra, and In re Winship, 397 U.S. 358

(1970). The common meaning of this instruction is that

the jury should accept the fact that an accused intended

to cause the death without proof of intent, and it forces

the accused to assume the burden of proving that he did

not intend the death by the presentation of evidence to

negate intent. This, of course, is improper as intent is

an essential element of the crime charged. Mullaney v.

Wilbur, 421 U.S. 684 (1975).

The factual conclusion for the jury’s determination

for the State to prove beyond a reasonable doubt

tha the Petitioner’s intent, and the Court so

it for the jury. See Appendix (3), pp. 41A-42A.

instruction in question not only forced the Peti-

to place some evidence before the jury on the

Hint

if

15

145

So

i

F

FE

+

cannot rely on presumptions to prove the elements when

those shift the burden of proof to the

defendant. Sandstrom v. Montana, supra; Mullaney v.

Wilbur, supra; Patterson v. New York, 432 U.S. 197

(1977).

In the Petitioner's trial the issue of intent was

the “crux or heart of the matter or to use the words of

State v. Moye, supra, The issue of intent was therefore

paramount in this case. Jd. 177 Conn. at 490. The

jury’s determination of the facts of the shooting

revolved around the Petitioner’s intent, and whether it

was murder, manslaughter or accident. Therefore, the

instructions on intent were critical to the Petitioner's

right to a fair trial, and they did not satisfy the consti-

tutional mandates as set forth in Sandstrom, supra.

This Court in Sandstrom v. Montana, supra, held

that a Trial Court instructing a jury that the law

presumes that a person intends the ordinary conse-

quences of his voluntary acts” was violative of the Due

Process Clause of the Fourteenth Amendment to the

Constitution of the United States. Sandstrom reaffirms

that the State must prove every element of a criminal

offense beyond a reasonable doubt. Critical to this

matter is Sandstrom’s holding that if the jury might

have interpreted the presumption of a conclusive pre-

sumption, or as a burden shifting presumption, then the

10

conviction cannot stand. Sandstrom, supra, at 524.

Sandstrom also held that these types of instructions

conflicted with the accused’s presumption of innocence

which extends to every element of the crime, and

invaded the fact-finding province of the jury, as the jury

could interpret the presumption as being one that imper-

missibly shifts the burden of proof to the accused and

necessitates that the accused prove that he lacked the

requisite intent, or the jury could view it as a conclusive

presumption. Id. at 523-525.

In Moye, supra, the jury was instructed that every

person was presumed to intend the natural consequences

of his own actions. This Court remanded Moye to the

Connecticut Supreme Court, which declared this instruc-

tion to be constitutional error. The instruction in Moye

and in the Petitioner’s case are identical. In fact, the

Petitioner and Moye both claimed an accidental shoot-

ing, and intent was the critical issue for the jury's deter-

mination in both trials.

This Court in Sandstrom reasoned that the ordinary

juror hearing an instruction that the law presumes that

a person intends the ordinary consequences of his volun-

tary acts” can view such an instruction as mandatory.

This Court in Sandstrom wrote that:

“given the common definition of ‘presume’ as

‘to suppose to be true without proof’, Webster's

New Collegiate Dictionary 911 (1974), and given

the lack of qualified instructions as to the legal

effect of the presumption, we cannot discount

the possibility that the jury may have inter-

preted the instruction in either of two more

stringent ways. [emphasis supplied]

Sandstrom at 517.

The two ways refer to the presumption being con-

clusive or placing a burden on the defendant to prove

the contrary by some quantum of proof. Thus, this

Court in Sandstrom reasoned that:

11

However the fact that a reasonable juror could

have given the presumption conclusive or

persuasion-shifting effect means that we cannot

discount the possibility that Sandstrom's jurors

actually did proceed upon one or the other of

these latter interpretations. And that means

that unless these kinds of presumptions are

constitutional, the instruction cannot be

adjudged valid.”

Sandstrom at 519

The Trial Court’s instructions to the jury on crimi-

nal intent, and particularly its presumption instruction

given on four distinct occasions as aforesaid, runs afoul

of the constitutional restraints as outlined in Sandstrom,

supra; United States u. United States Gypsum Co.,

supra, and Morissette, supra. The jurors in the Peti-

tioner’s matter may have treated the presumption as

“conclusive” or to have a “persuasion-shifting effect

This is particularly so in a trial revolving around the

question of intent with disputed evidence offered on the

issue of intent, as noted by the Trial Court in dwelling

at length on the evidence, its disputed nature, and the

jury’s duty to resolve the issue, with particular refer-

ence to intent and its significance as to the jurors’

determination of whether or not this was a murder, man-

slaughter or accident. In other words, the issue of intent

was also paramount in this case as it was in Moye,

supra. Thus, the Trial Court’s instruction given on four

occasions that every person is presumed to intend the

natural and necessary consequences of his acts invaded

the fact-finding function of the jury. Therefore, in light

of the jury instructions on intent in this matter, the

Petitioner’s conviction and its affirmance by the Con-

necticut Supreme Court should be reviewed by the

granting of Certiorari in order that the challenged jury

instructions be passed upon by this Court. This is par-

ticularly so as the Connecticut Supreme Court appears

to have consistently negated the teachings of Sand-

strom. In post-Sandstrom decisions, the Connecticut

Supreme Court has distinguished and/or negated

12

Sandstrom claims in the following cases: State

Arroyo, 41 Conn. L.J. No. 39, p. 6 (3/26/80); State

Perez, 41 Conn. L. J. No. 52, p. 12 (6/24/80); State

Maselli, 42 Conn. L.J. No. 7, p. 15 (8/12/80); State

Vasques, 42 Conn. L.J. No. 8, p. 36 (8/19/80); State

Truppi, 42 Conn. L.J. No. 25, p. 1 (12/16/80)!; State

Brokaw, 42 Conn. L.J. No. 31, p. 9 (1/27/81). These deci-

sions of the Connecticut Supreme Court reject

Sandstrom’s claims and found that other general

instructions cured the Sandstrom violations. It appears

that the Connecticut Supreme Court on only two occa-

sions other than in the Moye decision, after remand, has

found a Sandstrom violation. In State v. Harrison, 178

Conn. 689 (1979), the instruction in Harrison cast a

burden upon the defendant to place credible evidence

before the jury to rebut the presumption that a person

is presumed to have intended to do the act which he did

do. Thus, the instruction in Harrision was clearly more

offensive than the instruction struck down in Sandstrom

and Moye. In State v. Theriault, 42 Conn. L.J. No. 22,

p. 8 (11/25/80) the decision involved an instruction under

an accessory charge that clearly cast the burden of

proof on the accused and was not a typical Sandstrom

claim.

Sseseses

In Sandstrom, Moye, and Stankowski, there exists a

similar factual pattern, in which each defendant

admitted shooting the victim, but set forth a defense

based upon lack of intent. Sandstrom claimed that

chronic alcoholism prevented him from forming the

requisite of intent, while Moye and Stankowski claimed

that the shooting had been purely accidental and

completely unintentional. Therefore, in each instance the

State had to prove only the crucial question of intent,

which was the sole element of the crime of murder

which was in issue before the jury. It appears that the

Connecticut Supreme Court, while paying lip service to

Sandstrom, has reverted to its position in State v. Moye

ITruppi had a portion of his multiple convictions reversed on a

Harrison theory discussed supra.

13

Supreme Court and its decisions interpreting Sandstrom

justifies the granting of Certiorari to review the

judgment below

II. THE CONNECTICUT SUPREME COURT

ERRED IN NOT REVERSING THE

PETITIONER’S CONVICTION DUE TO

THE TRIAL COURT’S EXCLUSION OF

RELEVANT, MATERIAL AND EXCUL-

PATORY EVIDENCE OF A DEFENSE

WITNESS.

The Trial Court excluded the testimony of Stephen

Stankowski detailing how he entered a locked shed,

obtained a shotgun shell and loaded the weapon that the

Petitioner ultimately fired and which killed the decedent.

This testimony was corroborated by the Petitioner's

father, Frank Stankowski, who testified to the shed

being continuously locked and the circumstances under

which Stephen Stankowski re-enacted the events in

question.

The Petitioner contends that the Trial Court could

have and should have, admitted the testimony of

Stephen Stankowski, which was exculpatory in nature,

with cautionary instructions at the time of its admis-

sion. The Trial Court could have also given appropriate

instructions in the jury charge regarding the weight to

be accorded in that testimony. Finally, Frank Stan-

kowski should have been permitted to testify to the

hearsay re-enactment and questions he posed to Stephen

Stankowski in order to corroborate the young man’s

testimony.

The United States Constitution's Fourteenth

Amendment’s Due Process of Law Guarantee and its

14

guarantee of Fundamental Fairness, mandate that crimi-

nal defendants have access to information or testimony

that is exculpatory and vital to their defense, even in

the face of restrictive state evidentiary rules or claims

of privilege. Cf. Chambers u. Mississippi, 410 U.S. 284

(1973); Davis v. Alaska, 415 U.S. 308 (1974); United

States v. Nixon, 418 U.S. 683 (1974). See also, State v.

Farrow, 116 N.H. 731, 366 A.2d 1177 (1976); Stewart v.

Cowan, 528 F. 2d 79 (6th Cir. 1976); People v. Silver, 39

N.Y. 2d 99, 346 N.E. 2d 811, 382 NYS 2d 972 (1976).

The witness’ testimony was exculpatory in that it

negated intent and supported the Petitioner’s testimony

that the occurrence was an accident. Thus, it was an

error to exclude it due to its exculpatory nature on the

critical issue of intent. The right of an accused in a

criminal trial to due process is, in essence, the right to a

fair opportunity to defend against the state’s accusa-

tions. The rights to confront and cross-examine wit-

nesses and to call witnesses in one’s own behalf has long

been recognized as an essential to due process.”

Chambers, supra, at 295. Therefore, Stephen Stankow-

ski’s testimony should have been admitted with proper

instructions, and it was constitutional error to exclude

it. In fact, Few rights are more fundamental than that

of an accused to present witnesses in his own defense.”

Id., at 302.

Additionally, the Petitioner was denied the right to

“compulsory process as guaranteed by the Fourteenth

and Sixth Amendments to the United States Constitu-

tion and mandated by Washington v. Texas, 388 U.S. 14

(1967)? The deprivation of the benefit of Stephen Stan-

kowski's testimony to the Petitioner, when the witness

was present and available to give his testimony for the

jury’s evaluation, violated the defendant's right to offer

2Washington, supra at 23, Footnote 21 indicates that the decision

does not decide the disqualification of witnesses on the grounds of

incompetence or infancy. However, the reasoning of Washington and

its recognition of the due process right to call witnesses and to

present a defense” would appear to be applicable to this case.

15

testimony of a witness and to present a defense. See,

United States v. Nixon, supra, at 709-712, holding

that the need for evidence in a criminal trial and the

defendant's right to compulsory process must prevail

over claims of privilege. Therefore, the witness, Stephen

Stankowski, should have been allowed to testify.

The Petitioner requests that this Court grant Cer-

tiorari and review the constitutional issues that the Con-

necticut Supreme Court refused to consider in its

decision.

III. THE CONNECTICUT SUPREME COURT

ERRED IN APPROVING THE ADMISSION

OF UNWARNED STATEMENTS TAKEN

IN A CUSTODIAL SITUATION WHEN

THERE WAS A SUBSTANTIAL ISSUE AS

TO THEIR VOLUNTARINESS AND

VIOLATED THE PETITIONER’S CONSTI-

TUTIONAL RIGHTS.

The Petitioner filed a Motion to Suppress a Portion

of the Testimony of Trooper David Horan, and the Trial

Court held a voir dire hearing on the admissibility of the

unwarned statements, and denied the Motion to Sup-

press. See Appendix (5), pp. 45A-46A. The statements

were uttered prior to his having received the standard

Miranda warnings required by Miranda v. Arizona, 384

U.S. 436 (1966), but while in custody of the Connecticut

State Police Department.

The Petitioner, shortly after the shooting of the

victim on August 25, 1977, was observed by the Con-

necticut State Police to be in a highly agitated state,

wherein he was threatening to take his own life. He was

subdued and placed face down on a stretcher with his

hands cuffed behind him and was strapped onto said

stretcher. The Connecticut State Police first observed

him at about 11:35 p.m., and from that time on he was

constantly under their observation. At approximately

16

was under the observation of

oran, and at or about 1:16 a.m. the Peti-

of his rights under the Miranda deci-

„ on or about 2:43 a.m.

715

ie

if

1

:

:

.

= 2

1

:

8

1

:

:

3

8

„ III

i

observed to be sob and crying hysterically. At some

: the straps were loosened on the

stretcher and the handcuffs were momentarily removed

so as to bring his arms to a forward position, and to

allow him to get into a sitting position. During this

period of time, Trooper Horan, although making careful

note of all of the admissions of the Petitioner, could not

from the handcuffs. The staternents were read to the

jury by Trooper Horan, and were uttered while the

Petitioner was strapped face down on the stretcher with

his hands behind his back. The statements that Trooper

Horan ultimately read to the jury are set forth in

Appendix (6), p. 47A.

The Petitioner was entitled to have the Trial Court

ensure itself that the evidence being offered as an

admission was totally trustworthy. United States v.

Powe, 519 F.2d 833 (D.C. Cir. 1978). This Court has

recognized the same principle in holding that some of

the elements it must take into consideration before

allowing such evidence are the duration of interrogation,

if any is present; the conditions of detention and the

overall apparent attitude of the police toward the defend-

ant; the defendant’s physical and psychological state;

17

and all other conditions which might serve to drain

one’s powers to resist a suggestion or to walk a path of

rational self-determination. Culombe v. Connecticut, 367

U.S. 568 (1961).

The Petitioner at the time of the incident was a

nineteen year old boy, who upon first observation

appeared to be highly distraught and self-destructive.

He was taken into custody by the police at or about

11:35 p.m. on August 25, 1977, and was constantly in

their custody until approximately 1:16 a.m. the next

police, handcuffed with his hands behind his back,

placed on a stretcher face down, and strapped onto said

stretcher. At or about 12:05 to 12:15 a.m., the Petitioner

sobbing, sleeping and making statements both of an

exculpatory and inculpatory nature. At a later point in

time, blood tests were taken to determine the alcohol

level of his blood, and it was found at that time that

said level was beyond the level permissible under the

laws of the State of Connecticut to create a presumption

of intoxication, or at least one’s being under the in-

fluence for purposes of operating a motor vehicle.

In the Pennsylvania case of Commonwealth v. Smith,

70 Pa. 220, 368 A.2d 272 (1977), the Petitioner was

taken into custody shortly after he had released himself

the hospital from an attempted suicide, and was

with the murder of an individual some three

to the date of his arrest. He was taken to

police station and handcuffed to a chair for approxi-

tely was then advised of his rights

had nothing to say. Approximate-

the police told him that his brother-

w had implicated him in the killing. At that time he

made up his mind and gave the police a statement.

Court, in overturning the conviction, stated:

18

15

1

i

7235

5

TF

FEE

r

L

Hl

777

7

a

:

8

e

Richmond, 365 U.S. 534, 5 L.

S. Ct. 735 (1961). The line of distinction

te

~

S

s&s

that at which governing self direction is lost

and compulsion, of whatever nature or how-

ever infused, propels or helps propel the con-

fessions. Culombe v. Connecticut, supra, 367

U.S. at 602 (citations omitted). An evaluation

seeking to determine whether a confession

is involuntary due to psychological coer-

cion must consider those elements impinging

upon the defendant's will, such as the duration

and methods of interrogation, the conditions of

detention and the manifest attitude of the

police toward the defendant’s physics! and

psychological state and all of the conditions

present which may serve to drain one’s powers

of resistance to suggestion and undermine his

self-determination. See Culombe v. Connecticut,

supra, 367 U.S. 602 (citations omitted).

Smith at 275

There is no dispute that the statements made by the

Petitioner were made while in custody and prior to his

having received any warning but made ostensibly

without any questioning by the police. State v. Stankow-

ski, 42 Conn. L.J. No. 46, p. 5 at 8-11, Appendix (1), pp.

12A-13A. The Court in United States v. Powe, supra,

held. of primary concern is the interest in insuring the

trustworthiness of evidence. Powe at 839-40. As this

Court recognized, coerced statements are inherently

suspect, and the methods of coercion are not limited to

acts of physical brutality. Blackburn v. Alabama, 361

U.S. 199 at 206 (1960). One of the considerations con-

sistently cited by this Court is tie interest of preserving

19

the individual's freedom of will. Blackburn v. Alabama,

supra, at 206-207. Although various formulations have

been given to this concept, it embraces the principle

that the makeup of a free man includes his mechanisms

for self-preservation, refraining from speech that may

him... “but his statement does not reflect his

own free will or intellect if his statement is aitributable

in critical measure to the fact that his self protective

mechanisms are negated or overridden by external force

or fraud, conditions of insanity, or the compulsion of

drugs. Pea v. United States, 397 F.2d 627, 634 (D. C.

Cir. 1967).

It is acknowledged that certain admissions of an

accused are admissible when voluntarily offered by the

accused in a custodial situation, but prior to his having

been warned of his Miranda rights. Miranda v. Arizona,

supra. These so-called threshold confessions are

generally made in the police cruiser on the way to the

station, during the routine booking situation, and when

one walks into a police station or up to a policeman and

volunteers that he is guilty of some crime. Those cir-

cumstances lend themselves to a conclusion of credi-

bility, and for that reason they are allowed in as evi-

dence, although the police have failed to warn the con-

fessing individual of his rights. Cf. Miranda at 478.

The Petitioner's situation was entirely different in

that the accused was in the custody of the police,

isolated from any sympathetic company, and restrained

in such a fashion that he was totally at the mercy of his

captors. Compounding these circumstances were the

of alcohol and drugs, and the trauma of the

terrible incident that had taken place some two hours

previously. It goes without saying that if the police had

questioned the accused under these circumstances,

without warning him of his rights, any answers derived

asked no questions, nor had anyone in his presence

asked any questions, of the accused. The requirement

on the police of warning the accused with respect to his

question, could place an accused into such a position

that through sheer terror he would make any number of

admissions simply to free himself of the situation he

found himself in. In fact, the nature of the statements

made by the accused during this period of time sub-

stantiate this point. Certainly the statements read into

evidence by Trooper Horan cannot be held to be the

product of a rational mind. See Appendix (6), p. 47A.

Therefore, it is respectfully submitted that the Connecti-

cut Supreme Court erred in finding the admission of

these statements in conformity with Miranda v. Arizona,

supra, and Culombe v. Connecticut, supra. Thus, this

Court should grant Certiorari to review the judgment of

the Connecticut Supreme Court as regards the admis-

sion of these statements.

21

CONCLUSION

For the reasons hereinbefore set forth, a Writ of

(203) 482-7651

Counsel for the Petitioner

NO.

In The

Supreme Court Of The United States

OCTOBER TERM, 1981

GARY STANKOWSKI

Petitioner

V.

STATE OF CONNECTICUT

Respondent

APPENDIX

(1)

(2)

(3)

(4)

(5)

(6)

APPENDIX INDEX

Page

Opinion of the Connecticut State Supreme Court,

XLII Conn. L.J. No. 46 at 5 (May 12, 1981)..... 1A

Order of Connecticut State Supreme Court

Denying Motion for Rehearing Dated

ee 34A

Relevant Portions of Charge to Jury........... 35A

Petitioner’s Motion to Reargue in the Connecticut

Supreme Court Regarding the Failure to Decide

Petitioner’s Motion to Suppress a Portion of the

Testimony of Trooper David Horan............ 45A

Statements of Trooper Horan Read to the Jury

Over Petitioner’s Objectioo» n 47

APPENDIA (1)

Opinion of Connecticut State Supreme Court

XLII Conn. L.J. No. 46 at 5

(May 12, 1980)

SUPREME COURT

December Term, 1980

Srate or Connecticut v. Gary SraxxOoWSK I

Boopansxi, Perens, HeaLey, ARMENTANO and Wriont, Js.

Argued December 3, 1980—decision released May 12, 1981

Indictment charging the defendant with the crime

of murder, brought to the Superior Court in the

judicial district of Middlesex and tried to the jury

before Naruk, J.; verdict and judgment of guilty

and appeal by the defendant to this court. No error.

Joseph F. Keefe and Edward J. Peters, Jr., for

the appellant (defendant).

Ernest J. Diette, Jr., assistant state’s attorney,

with whom, on the brief, was John T. Redway,

state’s attorney, for the appellee (state).

Antoun H. Hearey, J. After trial to a jury of

twelve, the defendant was found guilty of murder in

violation of General Statutes § 53a-54a (a). Upon

the trial court’s denial of his motions for acquittal

and for a new trial, the defendant has appealed and

presses seven claims of error. He contends that the

trial court erred: (1) in denying his motions for

judgment of acquittal; (2) in admitting statements

made by him while he was in police custody; (3) in

excluding the testimony of a child witness; (4) in

1A

giving the “Chip Smith” charge; (5) in its charge to

the petit jury on the element of intent; (6) in its

charge to the grand jury on the element of intent;

and (7) in denying his post-trial motion for a new

trial based on juror misconduct.

From the evidence presented at trial, the jury

could have reasonably found the following: At

approximately 8 p.m., on August 25, 1977, after

having consumed two beers at the Hilltop Lounge,

the defendant met Stephen Grant at Moodus Center.

The defendant asked Grant if he wanted to smoke a

marijuana cigarette, and Grant said yes. The

defendant then purchased a six pack of sixteen-

ounce bottles of beer and met Grant and George

Hungerford at Hungerford’s car. The three then

proceeded to Grant’s van, in which they passed

around a marijuana cigaratte supplied by the

defendant.

Soon Cathy Jansky, Valerie Vickers, Harold

Corey and Susan Fournier arrived. In addition to

the beer drunk and the marijuana smoked by the

defendant and others in the van, the defendant also

consumed some whiskey and later drank some gin

and ginger ale.

At approximately 10:30 p.m., the defendant,

Hungerford, Jansky, Vickers and Corey left the van

for Hungerford’s car, and then went to the defend-

ant’s house at the defendant’s invitation “[t]o finish

the gin and have some more marijuana... .”

Hungerford later testified that, initially, while he,

the defendant, and Corey were in Hungerford’s car,

with the windows rolled up, the defendant said that

Vickers and Jansky should not be let into the car.

After Hungerford indicated that they were “nice

girls,” the defendant stated that “Cathy was all

right, but he really did not like Valerie.”

Once at the house, they all proceeded to the loft

over the Stankowski garage, where the defendant

put on the radio and then played a tape, and he

smoked another marijuana cigarette. After Hunger-

2A

ford indicated to the defendant that he was in need

of bathroom facilities, the two left and relieved

themselves outside of a shed behind the garage. The

defendant then brought Hungerford into the garage

to see a boat that his family had for sale. While in

the garage, the defendant told Hungerford that he

had some antique guns. The guns were locked up

in a shed, but the defendant indicated to Hungerford

that the door could be pulled open. The two pro-

ceeded to the shed where they pulled open the shed

door. The defendant then pulled out a .12 gauge

shotgun, which he handed to Hungerford, and then

reached for a .22 gauge rifle. He exchanged the rifle

with Hungerford for the shotgun. The defendant

reached back into the shed. Hungerford testified

that he heard the defendant rustling through some

shells, and told him not to “mess around with any

shells.” The defendant told him he “wouldn’t mess

around with shells.” The two then left to return to

the loft. Hungerford did not actually see the

defendant take out any shells.

When they reached the loft, Hungerford pro-

ceeded ahead of the defendant up the stairway.

Behind him, Hungerford heard the defendant

making a lot of noise with the gun. “It was a lot of

metal like noise, like it [the gun] was being cocked

and opened up and stuff.” Hungerford told the

defendant that he sounded as if he were ready to go

“hunting or something,” to which the defendant

“laughed and then he didn’t say too much.”

When they reached the loft, the defendant took

the .12 gauge shotgun to where Vickers was seated,

and pulled up a folding chair. Just before Vickers

was shot, Corey told the defendant that the defend-

ant was getting “kind of reckless” with the shotgun,

and asked the defendant to “put it up.” After the

defendant ignored Corey’s request, Corey returned

to looking at the .22 gauge rifle held by Hungerford.

He later overheard a conversation between the

defendant and the victim wherein he heard the

3A

defendant say “something” and then heard Vickers

say “go ahead,” followed “seconds” later by a shot-

gun blast which killed Vickers. Jansky also testified

that she saw the defendant point the gun at Vickers

while he was seated next to Vickers, and heard him

tell Vickers that he was going to shoot her. After

de responded “go ahead,” Jansky heard a shot

go off.

I

At the close of the state’s case, at the close of all

the evidence, and after the jury returned their

verdict of guilty, the defendant moved for judgment

of acquittal, contending that the state failed to meet

the burden of proving beyond a reasonable doubt

every element of the crime charged, specifically that

of intent. The defendant claims that the court erred

in denying these motions.

General Statutes § 53a-54a (a) provides that [a]

person is guilty of murder when, with intent to

cause the death of another person, he causes the

death of such person.” Section 53a-3 (11) states:

“A person acts intentionally' with respect to a

result or to conduct described by a statute defining

an offense when his conscious objective is to cause

such result or to engage in such conduct.” At trial,

the defendant offered evidence to show that the

shooting was accidental. He-testified that once he

brought the shotgun upstairs, he handed it to the

deceased. The victim allegedly handled the gun for

a while, discussing it with him. According to the

defendant’s testimony, at one point the defendant

asked Vickers if she wanted to roll a “joint,” to

which she responded “go ahead.” The defendant

claimed that he then placed the gun on a table; that

Vickers grabbed the end of the barrel and tapped

it on the edge of the table a few times; and that she

then placed two hands on the rifle and pulled it,

whereupon the gun went off.

4A

The state offered evidence to rebut the claim that

the shooting was accidental. In addition to the pre-

viously described testimony of the others present

on the loft, the state introduced evidence of state

trooper Ronald Luneau, a fingerprint examiner, who

analyzed the .12 gauge shotgun which killed Vickers.

Luneau found no prints or smudges of any kind

on the barrel of the shotgun. Jansky also testified

that after the shooting, she checked the victim. The

victim was holding a “joint” in her right hand. Both

of these pieces of evidence tended to rebut the testi-

mony of the defendant.

We have repeatedly stated the test which this

court employs to determine whether the evidence is

sufficient to sustain a verdict: “‘[T]he issue is

whether the jury could have reasonably concluded,

upon the facts established and the reasonable infer-

ences drawn therefrom, that the cumulative effect of

the evidence was sufficient to justify the verdict of

guilty beyond a reasonable doubt. State v.

Gaynor, Conn. (42 Conn. L.J., No. 25, p. 25)

(1980), quoting State v. Festo, Conn. (41 Conn.

L.J., No. 52, pp. 7, 9) (1980); State v. Nemeth,

Conn. (42 Conn. L. J., No. 23, pp. 3, 5) (1980); State

v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979) ;

State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948

(1978). “In ruling on such a motion, the evidence

presented at the trial must be given a construction

most favorable to sustaining the jury’s verdict.”

State v. Jackson, supra, 262; see State v. Nemeth,

supra; State v. Chetcuti, 173 Conn. 165, 172, 377

A.2d 263 (1977). Each essential element of the

crime charged must be established by proof beyond

a reasonable doubt, “‘and although it is within the

province of the jury to draw reasonable, logical

inferences from the facts proven, they may not

resort to speculation and conjecture.’” State v.

Gaynor, supra, 25; State v. Festo, supra, 9.

It is obvious from the verdict that the jury chose

to believe the state’s witnesses and to disbelieve the

5A

defendant’s version of how the shooting occurred.

In a jury trial, the credibility of witnesses and the

weight to be given testimony is for the jury to

determine. See State v. Gaynor, supra, 26; State v.

Ortiz, 169 Conn. 642, 646, 363 A.2d 1091 (1975).

This court cannot substitute its own judgment for

that of the jury if there is sufficient evidence to sup-

port the jury’s verdict.

We have stated: Intent is a mental process

which ordinarily can be proven only by circumstan-

tial evidence.” State v. Zdanis, Conn. (42 Conn.

L.J., No. 23, pp. 10, 12) (1980), cert. denied, US.

(49 U.S.L.W. 3710 [March 23, 19811). “The

intent of the actor is a question for the trier of fact,

and the conclusion drawn by the trier in this regard

should stand unless it is an unreasonable one.”

State v. Holley, 174 Conn. 22, 26, 381 A.2d 539

(1977).

Although there was not overwhelming evidence

to support the finding of the requisite intent, and

thus the defendant’s guilt, there was sufficient evi-

dence to support the jury’s verdict. As concluded by

the trial court: “From the evidence presented, the

jury could have found that the defendant did not

‘like’ the decedent; that the defendant, despite con-

trary admonitions, obtained shells and deliberately

loaded the shotgun before returning to the loft;

that, upon returning to the loft, he pointed the

loaded shotgun at the decedent and told her that he

was going to shoot her; and that, when she said

‘Go ahead,’ he pulled the trigger. Further, the lack

of any fingerprint smudges on the rifle and powder

burns on the victim’s hands and person, belied the

defendant’s claim that the victim caused her own

death by pulling on the barrel of the shotgun.”

II

The defendant argues that the trial eourt erred in

admitting statements made by him after he was

taken into custody and before he was informed of

6A

his rights under Miranda v. Arizona, 384 U.S. 436,

86 S. Ct. 16002, 16 L. Ed. 2d 694 (1966).

On the evening in question, at about 11:45 p.m.,

the Colchester state police received a phone call that

an accidsmt had occurred at the Stankowski resi-

dence ou Falls Road in Moodus. Upon their arrival

at the residence at approximately midnight, the

defendant was observed by the police to be holding a

razor blade in his hand, threatening to kill himself.

He screamed obscenities at the police, threatening

to kill them. After a struggle, three officers man-

aged to subdue’ the defendant, who exhibited a great

deal of strength; they handcuffed his hands behind

his back. The defendant continued to struggle, and

the police attempted to restrain him by holding him

against the ground.

Since the original dispatch to the police had

indicated that there was a shooting, an ambulance

was sent to the scene. After the ambulance’s

arrival at approximately 12:10 a.m., because of the

struggle and the inability of the police to control

the defendant, the defendant was strapped face

down on a stretcher obtained from the ambulance.

The defendant, at approximately 12:15 a.m., was

transported by ambulance to the Colchester police

barracks. The direct ride to the barracks took

around twenty minutes.

Although it is unclear when the defendant’s

restraints were loosened, trooper David Horan,’

who had accompanied the defendant in the ambu-

lance and was present at the barracks, at one point

testified that within five to ten minutes after arrival

at the barracks, the straps about the defendant’s

legs were loosened, his handcuffs were changed

from behind his back to in front, and he was allowed

to sit up.

At approximately 1:15 a.m., he was warned of his

Miranda rights. From the time the police took the

defendant into custody to the time he was given his

Miranda rights, trooper Horan testified that neither

7A

he, nor anyone in his presence, asked the defendant

any questions.

The defendant attempted to suppress various

ineulpatory and exculpatory statements made by

him, and recorded by trooper Horan, after he had

been taken into custody and before he was given his

Miranda rights. After a hearing, the court admitted

the statements. On appeal, the defendant claims

that the court erred in refusing to suppress the

statements made during that time. His argument

appears to be two-pronged: (1) the statements are

inadmissible because they were not voluntarily

given; and (2) they are not admissible because

they were uttered prior to the time he was advised

of his Miranda rights.

A

We first examine whether the defendant’s state-

ments are inadmissible because they were involun-

tarily given. The ultimate test of the admissibility

of nt 3 statements is their voluntariness. See

Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct.

1860, 6 L. Ed. 2d 1037 (1961) ; Rogers v. Richmond,

365 U.S. 534, 544, 81 S. Ct. 735, 5 L. Ed. 2d

760 (1961) ; State v. Staples, 175 Conn. 398, 406, 399

A.2d 1269 (1978). The state is required to prove,

by a preponderance of the evidence, that under all

the circumstances a particular confession is volun-

tary. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct.

619, 30 L. Ed. 2d 618 (1972); State v. Hawthorne,

176 Conn. 367, 370, 407 A.2d 1001 (1978); State v.

Staples, supra, 406-407; State v. Vollhardt, 157

Conn. 25, 34, 244 A.2d 601 (1968). “The issue of

whether a confession is voluntary and admissible

is, in the first instance, one of fact for determination

by the trial court in the exercise of its legal discre-

tion. State v. Devine, 149 Conn. 640, 652, 183 A.2d

612 (1962). That discretion must, however, be exer-

cised in accordance with constitutional standards of

due process. State v. Staples, (supra, 408].” State

v. Derrico, Conn. (41 Conn. L.J., No. 50, pp. 7,

8A

11) (1980), cert. denied, US. (49 U.S.L.W.

3443 [Dece er 15, 1980]).

We have stated that “‘ “the test of voluntariness

is whether an examination of all the circumstances

discloses that the conduct of ‘law enforcement

officials was such as to overbear [the defendant's]

will to resist and bring about confessions not freely

self-determined . . . .’ Rogers v. Richmond, 365 U.S.

534, 544, [81 S. Ct. 735, 5 L. Ed. 2d 760] (1961).”’”

State v. Staples, supra, 408; see State v. Derrico,

supra, 11. “The ultimate test remains. . . ‘Is the

confession the product of an essentially free and

unconstrained choice by its maker? If it is, if he

has willed to confess, it may be used against him.

If it is not, if his will has been overborne and his

capacity for self-determination critically impaired,

the use of his confession offends due process.’”

Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93

S. Ct. 2041, 36 L. Ed. 2d 854 (1973), quoting

Culombe v. Connecticut, supra, 602; see State v.

Derrico, supra, 11.

The trial court concluded: “There was no evi-

dence of any mistreatment, threats or promises or

physical or mental abuse which would deprive an

otherwise rational mind of the exercise of free will

and power of decision and discernment. The record

in this case is totally devoid of any indication that

the defendant was subjected to this sort of coercion

or intimidation either while he was riding back to

the barracks or while he was being held at the bar-

rucks.“ On the basis of a review of the evidence

before it, we cannot conclude that the trial court

erred in holding that the defendant’s statements

were not involuntary.

An examination of the record before us discloses

that there is no indication, from the time the defend-

ant was taken into custody to the time when he was

given his Miranda rights, that the defendant was

coerced into giving the statements which he now

9A

claims are inadmissible. The record does not indi-

cate any attempt by the police to elicit any state-

ments from the defendant. The defendant makes

no claim that the police verbally interrogated him,

or that the police used any threats, promises or

offers of leniency to obtain a confession. The

restraint employed by the police in handcuffing the

defendant and transporting him by stretcher was

reasonably necessary in view of the defendant’s

attempts to prevent the police from restraining him,

and in light of his threats of taking his own life and

those of the police officers. Upon his arrival at the

barracks, his leg restraints were soon thereafter

loosened and he was allowed to sit up with his hands

cuffed in front of him.

The time period involved in the episode in ques-

tion is also significant in determining the possible

existence of any psychological pressures on the

defendant to give a statement. The whole period

in question lasted, at most, a little over an hour:

the police first confronted the defendant around

midnight; he was handcuffed, placed on a stretcher,

and then transported by ambulance directly to the

police barracks at approximately 12:15 a.m.; he

arrived at the barracks around 12:35 a.m.; and he

was advised of his Miranda rights at approximately

1:15 a.m.

Although the defendant was in his teens, he was

not in his early teens; at the age of nineteen he had

already passed the age of majority in our state.

General Statutes §1-1d. There is no claim that he

was intellectually or psychologically deficient in any

way.

The defendant argues that due to his ingestion of

alcohol and use of marijuana, both of which were

self-induced, his statements cannot be deemed to be

voluntary. [The use of drugs or the ingestion of

alcoholic beverages does not in and of itself render

a subsequent admission inadmissible.” People v.

10A

Pawlicke, 62 III. App. 3d 791, 796, 379 N.E.2d 798

(1978); see United States v. Brown, 535 F.2d 424,

427 (8th Cir. 1976) ; State v. Peterson, 366 A.2d 525

(Me. 1976). It is one factor to be considered in

determining the voluntariness of a statement. See

State v. Peterson, supra; Commonwealth v. Jones,

457 Pa. 423, 322 A.2d 119, 125 (1974).

Despite the fact that the defendant had ingested

alcoholic beverages and had used marijuana before

the killing, both troopers Martin Hart and David

Horan testified that the defendant’s statements dur-

ing the time in question were not slurred and were

comprehensible. Trooper Hart testified that before

the defendant was placed in the ambulance, the

defendant’s speech was not slurred, he did not hic-

cup, belch or vomit, nor did he appear to sway or

stagger while walking. He was alert to the

presence of the officers.

Trooper Horan, who accompanied the defendant

in the ambulance and was with him at the barracks,

testified that during the time he was with the

defendant, the defendant’s speech was not mum-

bled or slurred; he did not hiccup or belch, or give

any indication of the need to vomit. About fifteen

minutes after the defendant was advised of his

rights, the defendant was allowed to walk to a vend-

ing machine, about twenty feet away, to purchase

a package of cigarettes; soon thereafter, he used

the bathroom facilities. During both times, he did

not appear either to stumble or to sway.

We conclude that, upon a review of the record,

there is sufficient evidence to support the trial

court’s conclusion that the defendant’s will was

not overborne and that his statements were not

involuntarily made. See State v. Derrico, supra,

11-12; ef. Rogers v. Richmond, supra; Culombe v.

Connecticut, supra.

11A

We next examine whether the defendant’s state-

ments are inadmissible because they were uttered

prior to the time he was given his Miranda warn-

ings. Miranda held that “the prosecution may not

use statements, whether exculpatory or inculpatory,

stemming from custodial interrogation of the

defendant unless it demonstrates the use of proce-

dural safeguards effective to secure the [fifth

amendment's] privilege against self-incrimination.”

Miranda v. Arizona, supra, 444. Before one sus-

pected of the commission of a crime is entitled ‘o

the warnings constitutionally required by Miranda,

however, two conditions must be satisfied: the sus-

pect must be in the custody of law enforcement

officials; Oregon v. Mathiason, 429 U.S. 492, 495, 97

S. Ct. 711, 50 L. Ed. 2d 714 (1977); Beckwith v.

United States, 425 U.S. 341, 344-48, 96 S. Ct. 1612,

48 L. Ed. 2d 1 (1976); and the suspect must be sub-

jected to interrogation. Rhode Island v. Innis, 446

U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980);

Miranda v. Arizona, supra, 444. The defendant

was clearly in custody during the time period in

question. The question becomes whether he was

the subject of police interrogation.

In Rhode Island v. Innis, supra, the United States

Supreme Court defined what conduct amounted to

“interrogation” for Miranda purposes. The court

stated: “(T]he term ‘interrogation’ under Miranda

refers not only to express questioning, but also to

any words or actions on the part of the police (other

than those normally attendant to arrest and cus-

tody) that the police should know are reasonably

likely to elicit an incriminating response from the

suspect. The latter portion of this definition focuses

primarily upon the perceptions of the suspect,

rather than the intent of the police. . A practice

that the police should know is reasonably likely to

evoke an incriminating response from a suspect

thus amounts to interrogation. But, since the police

12A

surely cannot be held accountable for the unfore-

seeable results of their words or actions, the defini-

tion of interrogation can extend only to words or

actions on the part of police officers that they should

have known were reasonably likely to elicit an

incriminating response.” Rhode Island v. Innis,

supra, 301-302.

Under the facts of this case, we cannot conclude

that the defendant was interrogated so as to invoke

the Miranda warnings. The defendant makes no

claim that the police or anyone else verbally ques-

tioned him during the time at issue. Trooper

Horan, in fact, testified on several occasions that

neither he nor anyone else in his presence asked

the accused any questions.

The issue is then whether the defendant can be

deemed to have been subjected to the “functional

equivalent” of interrogation. Upon a review of all

of the circumstances in this case, we hold that he

was not.

Although the test in Jnnis is an objective one,

the Supreme Court noted that the intent of the

police is not irrelevant. This is so “for it may well

have a bearing on whether the police should have

known that their words or actions were reasonably

likely to evoke an incriminating response. In par-

ticular, where a police practice is designed to elicit

an incriminating response from the accused, it is

unlikely that the practice will not alsu be one which

the police should have known was reasonably likely

to have that effect.” Rhode Island v. Innis, supra,

301-302 n.7. There is clearly no indication from

the record that the police conduct in this case was

designed to elicit incriminating utterances from the

defendant. Although trooper Horan took notes of

the defendant’s statements, this factor cannot alone

be decisive of an intent to interrogate, “for a law

officer would be derelict in his duty not to log an

accused’s incriminating statements. United

States v. Voice, 627 F.2d 138, 145 (8th Cir. 1980).

13A

We simply cannot conclude that the defendant was

subjected to any words of or actions by the police

that the police should have known were reasonably

likely to elicit incriminating responses from the

defendant. Cf. State v. Krajger, Conn. (42

Conn. L.J., No. 25, p. 22) (1980).

III

The defendant claims that the court erred in

excluding the testimony of a six-year-old child,

Stephen Stankowski, who is a nephew of the defend-

ant. During the trial, the defendant made an offer

of proof regarding testimony of Stephen to the

effect that Stephen had previously loaded the shot-

gun which later was involved in the fatal shooting.

Out of the presence of the jury, the defendant’s

attorney, the state’s attorney and the trial judge

all asked Stephen a number of questions. In addi-

tion, the defendant’s witness, Dr. Mark Kaplan, a

clinical psychologist, testified as to Stephen’s intel-

ligence and psychological make-up. Kaplan also

provided the court with a seven-page report of his

examination of Stephen.

After Kaplan testified, the trial judge ruled that

he was of the opinion that the child was not com-

petent to testify. He stated: “... even in the most

liberal stretch of the rule that I can make, the wit-

ness is not qualified.“

This court recently has had occasion to discuss

the standards by which the competency of a child

witness to testify is to be determined. “The testi-

monial capacity of a child witness is a matter for

the court to determine upon inquiry. State v. Seger-

berg, 131 Conn. 546, 547, 41 A.2d 101 (1945). In

Connecticut, the examination to determine the com-

petency of a witness is usually conducted by counsel

under direction of the court, except insofar as the

court may find it advisable to intervene. See State

v. Orlando, 115 Conn. 672, 676, 163 A. 256 (1932).

Because the competency of a witness is a matter

14A

peculiarly within the discretion of the trial court,

its ruling will be disturbed only in a clear case of

abuse or of some error in law. State v. Siberon, 166

Conn. 455, 457, 352 A.2d 285 (1974); State v.

Orlando, supra, 675; Kuczon v. Tomkievicz, 100

Conn. 560, 572-73, 124 A. 226 (1924).

“In determining the competency of child wit-

nesses, age is not the decisive factor. See Kuczon

v. Tomkievicz, supra, 570; MeCormick, Evidence

(2d Ed.) § 62. Instead, the trial court must consider

‘the proposed witness’ maturity to receive correct

impressions by his senses, ability to recollect and

narrate intelligently, and ability to appreciate the

moral duty to tell the truth.’ State v. Siberon,

supra, 458. The witness should also have an intel-

ligent comprehension of the facts sought to be

developed. See State v. Segerberg, supra, 548;

Kuczon v. Tomkievicz, supra, 570; McCormick, loc.

cit.” State v. Rodriguez, Conn. (41 Conn. L. J.,

No. 44, pp. 12, 14-15) (1980). See also 2 Wharton,

Criminal Evidence (13th Ed.) §§ 379-380.

Upon review of the evidence, we cannot conclude

that the trial judge abused his discretion by not

allowing Stephen Stankowski to testify. The trial

judge, who has the advantage of viewing the child

first hand, and observing the child’s demeanor and

ability to answer questions posed to him, could have

reasonably come to the conclusion that Stephen did

not have the ability to recollect and narrate intel-

ligently, or the ability to appreciate the moral duty

to tell the truth.“

IV

The defendant contends that the court erred in

giving a supplemental instruction to the jury. After

the jury had been deliberating for approximately

two and one-half days, they came back and asked

the trial court whether they had “to reach a unani-

mous decision on the first or more serious charge

15A

before considering the lesser charge?” After the

trial court answered yes and explained its answer,

it then gave the jury a charge on the role and

responsibility of the jurors, commonly referred to

as a “Chip Smith” instruction.* See State v. Smith,

49 Conn. 376 (1881). The defendant objected to the

giving of the charge, contending that the charge

violated his due process of law and right to a jury

trial under article first, §8 of the Connecticut con-

stitution because it coerces the “jurors individually

into listening to and adopting the conclusions of

their fellow jurors.”

We disagree. We have had recent occasion to

note: “The possibility of disagreement by the jury

is implicit in the requirement of a unanimous ver-

diet and is part of the constitutional safeguard of |

trial by jury. See United States v. Harris, 391 F.2d

348, 355 (6th Cir. [1968]); Thaggard v. United

States, 354 F.2d 735, 740 (5th Cir. 11965) (Cole-

man, J., concurring specially); Jenkins v. Upited

States, 380 F.2d 220, 222 (D.C. Cir. [1964))

(Wright, J., dissenting), rev’d, 380 U.S. 445, 85

S. Ct. 1059, 13 L. Ed. 2d 957 [1965]; Green v. United

States, 309 F.2d 852, 856 (5th Cir. 11962)

While a defendant is not entitled to an instruction

that a jury may ‘hang’; United States v. Sawyers,

423 F. 2d 1335, 1340 (4th Cir. [1970]) ; United States

v. Bowles, 428 F.2d 592, 596 (2d Cir.), cert. denied,

400 U.S. 928, 91 S. Ct. 193, 27 L. Ed. 2d 188 [1970] ;

he is entitled to a jury unfettered by an order to

decide. Jenkins v. United States, 380 U.S. 445, 446,

85 S. Ct. 1009, 13 L. Ed. 2d 957 [1965).” State v.

Peary, 176 Conn. 170, 183-84, 405 A. 2d 626 (1978),

quoting State v. Ralls, 167 Conn. 408, 421-22, 356

A. 2d 147 (1974).

In the present case, the court’s charge cannot be

said to heave coerced the jurors. When read as a

whole, the charge adequately apprised the jurors

of theiz individual responsibility both to reconsider

16A

their opinion and “to reach his or her own conclu-

sion,” and not merely to acquiesce in the conclusions

of others. See United States v. Robinson, 560 F.2d

507, 517 (2d Cir. 1977), cert. denied, 435 U.S. 905,

98 S. Ct. 1451, 55 L. Ed. 2d 496 (1978). We cannot

conclude that the court’s charge, when read as a

whole, was prejudicial to the defendant. See State

v. Peary, supra; State v. Martinez, 173 Conn. 541,

378 A.2d 517 (1977); State v. Ralls, supra; State v.

Keeler, 164 Conn. 42, 316 A.2d 782 (1972); Tough

v. Ives, 162 Conn. 274, 294 A.2d 67 (1972); State v.

Walters, 145 Conn. 60, 138 A.2d 786, cert. denied,

358 U.S. 46, 79 S. Ct. 70, 3 L. Ed. 2d 45 (1958) ; State

v. Schleifer, 102 Conn. 708, 130 A. 184 (1925); State

v. Smith, supra.“

V

The defendant also claims that the trial court

erred in its instruction to the trial jury on the issue

of intent as an element of the crime of murder. He

specifically contends that the court’s charge imper-

missibly shifted the burden of proof to him, thereby

violating his constitutional protections of the pre-

sumption of innocence and of due process of law as

guaranteed by the fourteenth amendment to the

United States constitution. See Sandstrom v. Mon-

tana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39

(1979). He takes issue with that portion of the

charge which stated: “A person’s intentions may be

inferred from his conduct. Every person under the

law is presumed to intend the natural and necessary

consequences of his acts.’

On a number of recent occasions, this court has

reviewed claims based on an alleged violation of

Sandstrom v. Montana, supra.’ See, e.g., State v.

Brokaw, Conn. (42 Conn. L.J., No. 31, pp. 9, 11)

(1981); State v. Truppi, Conn. (42 Conn. -L. J.,

No. 25, pp. 1, 2-6) (1980); State v. Theriault,

Conn. (42 Conn. L. J., No. 22, pp. 8, 11-13) (1980);

State v. Vasquez, Conn. (42 Conn. L. J., No. 8,

pp. 36, 37-40) (1980); State v. Maselli, Conn.

17A

(42 Conn. L. J., No. 7, pp. 15, 18-19) (1980); State

v. Perez, Conn. (41 Coni. L. J., No. 52, pp. 12,

16-17) (1980); State v. Arroyo, Conn. (41

Conn. L.J., No. 39, p. 6) (1980). We have cautioned

that the Sandstrom holding must not be over-

simplified; see State v. Vasquez, supra, 38; State v.

Arroyo, supra, 7; and that other instructions may

be adequate to overcome the potential for confus-

ing the jury on the issue of inferences and presump-

tions with regard to intent. See State v. Vasquez,

supra; State v. Arroyo, supra; State v. Harrison,

178 Conn. 689, 697, 425 A.2d 111 (1979).

We have carefully examined the entire charge

and have concluded that the instructions on the

element of intent did not violate the defendant’s

constitutional rights as claimed. Prior to giving

the charge on intent that is attacked, the court

instructed at length on the matter of circumstantial

evidence and inferences; the terms “infer” and

“inference” were specifically and repeatedly

explained in permissive terms. The jury were

informed that “you may draw inferences from the

facts that you find to be established in the case” and

that any [ilnferences that you may draw from

these established facts must be logical and reason-

able and well founded upon the facts which have

been proven during the course of the trial.”

(Emphasis added.) The sentence before the portion

objected to was [a] person’s intentions may be

inferred from his conduct.” This sentence, together

with the portions attacked, appeared in the court’s

charge not only after but also before language

instructing on the permissive nature of the jury’s

function in drawing inferences.

The court also pointed out that the element of

intent “is obviously a crucial element in this case”

whic; the state must prove beyond a reasonable

dou.t. The court made clear, both as to murder and

manslaughter, that it was for them to decide

18A

whether the state had proven beyond a reasonable

doubt the element of intent. The court charged at

length on the matter of intoxication and its bearing

on the jury’s determination of the element of intent.

Evidence that the state claimed tended to demon-

strate the existence of the requisite intent, as well

as evidence the defense claimed tended to negate

such intent, was commented upon. In its summary

at the end of the charge, the court told the jury that

it was for them to decide whether the defendant had

the intent to cause the death of the victim, or that

he had the intent only to cause her serious physical

injury or, as the defense claimed, that “he had no

intention of any kind to cause any harm, neither

death nor serious physical injury.” The court’s

instructions placed the burden of proof squarely

on the state as to every essential element of the

crime. They pointed out that the defendant “does

not have to prove his innocence” and adequately

instructed the jury on the defendant’s presumption

of innocence.

We are aware that general instructions on the

burden of proof or the presumption of innocence do

not in and of themselves dispel the possibility that

the jury could have interpreted the instruction on

intent in an unconstitutional manner. See Sand-

strom v. Montana, supra, 518 n.7. Such instruc-

tions, however, may be considered with all other

instructions relevant to the claim raised to deter-

mine whether the jury could have interpreted the

presumption involved to be either conclusive or

burden-shifting and, thus, unconstitutional. See

State v. Vasquez, supra, 38.

The instructions in this case which the defendant

attacks are very similar to the murder instructions

which we upheld in State v. Arroyo.“ Upon review,

we conclude that the attacked portions of this

charge, when considered in light of the charge as a

whole, including the explanatory instructions on

inference and circumstantial evidence, could not be

19A

reasonably construed to require a conclusive pre-

sumption or a shifting of the burden of proof, and

did not deprive the defendant of his due process

right to a fair trial. See State v. Arroyo, supra.

VI

The defendant also claims that the court erred in

its instruction to the grand jury on the issut of

intent as un element of the crime of murder. He

contends that the court’s charge to the grand jury

impermissibly shifted the burden of proof to him,

thereby violating his constitutional protection of

the presumption of innocence and of due process of

law.

In State v. Stepney, Conn. (41 Conn. L. J.,

No. 52, p. 1) (1980), cert. denied, US. (49

U.S.L.W. 3493 [January 12, 1981]), we considered

the question whether the prohibitions enunciated

in Sandstrom regarding instructions delivered to a

petit jury on the issue of criminal intent were appli-

cable in grand jury proceedings. For the reasons

stated therein, we concluded that “the interests

intended to be protected by the prohibitions delin-

eated in Sandstrom with regard to a petit jury are

not equally imperiled within the context of a grand

jury proceeding as conducted in this state

State v. Stepney, supra, 2. Accordingly, we find

no error with regard to this claim.

VII

Finally, the defendant contends that the court

erred in denying his post trial motion for a new

trial as a result of juror misconduct occurring dur-

ing the course of the trial. As found by the court,

on May 3, 1978, at a luncheon recess, a conversation

took place in the main lobby of the courthouse

between the defendant and one of the jurors sitting

on the case. The juror began the conversation with

the defendant by asking him if the other jurors had

come back yet. After the defendant replied “No,”

20A

the juror commented about the weather and then

said: “It looks like it’s going to be a long trial.”

The defendant responded by saying “You have to

go through a lot to prove what happened or to prove

an accident.” The juror then asked the defendant

about his belief in God, to which the defendant

stated that he felt that God had let him down.

Finally, in response to a question posed by the

juror about the victim in the case, the defendant

volunteered the information that he had written a

letter to the victim’s mother in which he stated the

victim’s death was an accident and that he was

sorry. The conversation then terminated when the

defendant observed a sheriff approaching down a

corridor heading to the main lobby.

This conversation was observed by the defend-

ant’s father and a secretary employed by the

defendant’s trial counsel. The secretary did not

overhear any of the conversation; the defendant’s

father only overheard a part of the conversation.

Later that day, the defendant told Thomas Flood,

a licensed private investigator who was employed

by and who assisted the defendant’s trial counsel

during the trial, about the incident. I*lood told the

defendant to tell his trial counsel about the conver-

sation with the juror. The defendant had also pre-

viously been instructed by his trial counsel not to

talk to anybody during the trial.

The defendant knew he was not following his

trial counsel’s instructions when he talked to the

juror. Yet, he did not tell his trial counsel of his

conversation because he knew the conversation was

improper" and was therefore afruid of his trial

counsel’s response.

After the unfavorable verdict was reached, the

defendant informed his trial counsel of the conver-

sation. His counsel then moved for a new trial,

and a hearing was held on the issue. The court

refused to grant the defendant a new trial ruling,

21A

inter alia, that there was no showing of any viola-

tion of the defendant’s constitutional right to an

impartial jury.

The defendant argues, on several grounds,” that

the court erred in refusing to grant the defendant’s

motion for a new trial. We do not agree. “Where

alleged juror misconduct claimed as prejudicial is

known by the party or his counsel prior to rendition

of a verdict, and no objection is made, nor the

matter brought to the court’s attention, the party

cannot later assert the misconduct as grounds for

a new trial.” (Emphasis added.) State v. Porter,

Kan. , 615 P.2d 146, 152 (1980), quoting

State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976).

“(Where misconduct of jurors is first presented

in the motion for new trial, an affirmative showing

must be made that both defendant and his attorney

were ignorant of the misconduct until after the

trial. . The reason for the rule is that a defend-

ant is not entitled to wait until the verdict is in,

gambling on a favorable verdict, then seek a new

trial if a verdict of guilty is returned.... Appel-

lant’s knowledge of the alleged misconduct prior to

the conclusion of trial prevents its consideration

when raised for the first time in the motion for new

trial, even though appellant’s counsel did not learn

of it until after trial.” (Emphasis added.) State v.

Brown, 599 S. W. 2d 498, 502 (Mo. 1980).

We do not agree with the defendant’s contention

that he was deprived of his right to the effective

assistance of counsel. The defendant was told by

his counsel not to talk to any juror during the trial;

he knew that the conversation was improper; and,

even though he was told by Mr. Flood to inform his

counsel of the conversation, the defendant did not

tell his attorney until after the verdict was reached.

We note that at the time of the conversation,

there were two alternate jurors sitting on the

defendant’s jury, in addition to the twelve regular

jurors. In an unattacked conclusion, the court

22A

stated that “[a]ny prejudice arising from said con-

versation could have been remedied by the trial

court’s excusing [the involved juror) from further

service as a juror on the defendant’s case and

replacing [him] with one of the alternate jurors.”

Under the circumstances of the case, because the

defendant knew of the improper communication

with the juror, yet waited until after an unfavor-

able verdict was reached to raise the issue, we

decline to find error.

There is no error.

In this opinion the other judges concurred.

FOOTNOTES

note that the jury were fully apprised by the court on the

effect which the defendant's intoxication could have had

See General Statutes §53a-7. Nevertheless, they

t the defendant had the requisite intent. The defendant

claim that the court's charge with respect to the issue of

toxication was deficient in any way. We set out the

charge on the murder count with respect to that issue to

ts

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1171

our statute, intoxication is not a defense to a crimi-

t evidence of intoxication of the defendant may be

defendant whenever it is relevant to negate or nega-

t of the crime charged. However, the burden remains

to prove beyond a reasonable doubt that the defen-

any intoxication, if you find any, had the capacity to

use Valerie Vickers’ death when he shot

basic rule that the state has the burden of

of the crime charged, including intent

this to you because I don't

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Hi?

A. Good.

Q. Stephen, you told us how old you were and you said you were

six years old, right?

Q. Do you know your birth date, Stephen?

Q. The second of what? Do you know what date your birthday

falls on?

A. The second.

A. Yes.

J

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mo

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428202465

25A

Q. Do you have fun playing?

A. Yes.

Q. Do you do anything else while you are in kindergarten?

A. Yes.

Q. Do you do any writing when you are in kindergarten?

A. Yes.

Q. Do you know how to write your name?

A. Yes.

Q. Do you know the alphabet?

A. Yes.

Q. Can you say the alphabet for me?

(Witness responds by reciting alphabet, but most letters

are unintelligible.)

Q. Do you know how to count?

A. Yes.

. Can you count up to twenty for me?

(Witness counts to twenty, but most numbers are unintelligible.)

Q. You indicated or you told Mr. Peters that you lived on Falls

Road?

A. Yes.

Q. Do you know the name of the town that you live in?

A. No.

Q. Who lives with you at Falls Road?

A. Gary.

Q. Anybody else live with you?

A. Frankie and Grandma.

Q. Anybody else live with you there?

A. Det+ie.

Q. Debbie lives with you, too?

A. Yes.

Q. Anybody else live with you at that location?

A. No.

Q. Do you to go church, Stephen?

A. Yes.

Q. You do?

A. Yes.

Q. When do you go to church, Stephen?

A. Friday.

Q. Where do you go to church, Stephen?

A. I don't know.

Q. How often do you go to church, Stephen?

A. One week.

Q. Do you go to church every week?

26A

A. No, just one week.

Q. Just one week?

A. Yes.

Q. Do you know how many times you have been to church,

Stephen?

A. One time.

Q. Just one time you have been in church?

A. Yes.

Q. Who did you go to church with?

A. Frankie and Gary.

Q. Do you go to Sunday School?

A. Yes.

Q. You do?

A. (Nodding affirmatively.)

Q. Do you go every week?

A. Yes.

Q. What is your Sunday School teacher's name?

A. Miss Warzecha.

Q. Not kindergarten. I am talking about church school. Do you

go to church school?

A. Yes.

Q. Where is that?

A. Falls Road.

Q. Is that where the church is?

A. Yes.

Q. Is the church near your home, Stephen?

A. Yes.

Q. How far is it from your home?

A. A little ways.

Q. Do you know the name of the church?

A. (Nodding negatively.)

Q. You don’t know?

A. No.

Q. Do you believe in God?

A. Yes.

Q. Who taught you to believe in God?

A. My Grandma.

Q. Do you know what is is to tell a lie, Stephen?

A. No.

Q. Do you know what would happen to you if you told a lie?

A. Yes.

Q. What would happen to you?

A. You ‘pologize {sic}.

Q. I don’t understand that word, Stephen. Can you state it

again?

27A

apologize, is that what it is?

do you mean by that, Stephen?

happens when you lie?

‘pologize.

What does that mean, Stephen? I don't understand that word.

<

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Sometimes I have trouble understanding things.

A. Like you lie.

Q. Do you mean that once you lie, you have to say you're sorry?

A. Yes.

Q. But you don’t know what a lie is, Stephen?

A. (Nodding negatively.)

Q. Would anything happen to you, Stephen, if you lied?

A. Yes.

Q. What would that be?

A. I don't know.

Q. Do you know why you are in court, Stephen?

A. Yes.

Q. Why are you in court?

A. To ask the truth.

Q. Do you know what you are supposed to say when you come

into court?

A. (Nodding affirmatively.)

Q. What is that, Stephen?

A. I don't know.

Q. You like Gary, don’t you?

A. Yes.

Q. You like Frankie?

A. Yes.

Q. „ would you

say it?

it?

A. Yes.

Q. Why? Because you like them?

A. Yes.

Q. If they told you it would be okay to tell a lie, would you do

A. No.

Q. You wouldn't do it then?

A. No.

Q. Why not?

A. I don't know.

Q. Stephen, when was the last time you were at school?

A. I don't know.

28A

Q. Stephen, have you ever seen me before?

A. Yes.

Q. Where did you see me before?

A. Outside.

Q. Ever see Mr. Peters before?

A. Yes.

Q. Where did you see him before?

A. I don’t know.

Q. Stephen, Mr. Peters asked you some questions before. Is that

right?

A. Yes.

Q. Do you remember the questions he asked you?

A. Yes.

Q. Did he ever ask you those questions before?

A. Yes.

Q. Did he ask you those questions before many times?

A. Yes.

Q. Can you tell me how many times?

A. All day.

Q. Stephen, do you know how long ago Christmas was?

A. Yes.

Q. Do you remember Christmas?

A. Yes.

Q. Why do you remember Christmas, Stephen?

A. Before I like it.

Q. Do you remember how long ago that was?

A. Yes.

Q. How long was that?

A. A long day.

Q. Do you remember when this thing happened with Gary?

A. Yes.

Q. Did that happen before Christmas or after Christmas?

A. After Christmas.

Q. Stephen, what else happens to people when they tell lies?

A. I don't know.

Mr. Redway: No further questions.

The Court: Mr. Peters (defendant's attorney).

By Mr. Peters:

Q. Stephen, if the Judge allowed you to testify, would you lie?

A. No.

Q. Do you remember something that you did last summer?

A. Yes.

Mr. Peters: No further questions, your Honor.

By the Court:

Q. Stephen, do you know what the word testify means?

A. No.

29A

Q. Why do you remember Christmas?

A. I don’t know.

Q. Do you get presents at Christmas time?

A. Yes.

Q. Do you remember what present you got last Christmas?

A. Yes.

Q. What did you get?

A. A bike.

Q. What kind of bike, three wheels or two wheels?

A. Three wheels.

Q. Do you remember going to church?

A. Yes.

Q. Do you remember the name of the church?

A. No.

Q. Who is the man or lady who runs things at the church, do

you remember?

A. No.

Q. Do you have friends in kindergarten?

A. Yes.

Q. Who is your best friend?

A. Mark.

Q. Do you know where Mark lives?

A. No.

Q. Do you know Mark's last name?

A. Mark Shasso (sic).

Q. How old is Mark?

A. Six.

Q. Do you know the name of the people who live next door to

you on Falls Road?

Q. Do you know what happens to you when you tell a lie?

A. Yes.

Q. What is that?

A. You 'pologize.

The Court: All right, no other questions.

Mr. Peters: I have none, your Honor.

Mr. Redway: I have no further questions.”

6 The court stated: The last question which you sent out reads

follows: ‘Does the jury have to reach a unanimous decision on the

dou not

concurred in by most of those with whom they are associated and

; (emphasis added) State u. Walters, 145 Conn. 60, 64,

138 A.2d 786, cert. denied, 358 U.S. 46, 79 S. Ct. 70, 3 L.Ed.2d 45

(1968); a reported deadlock is not a prerequisite to giving the charge.

In this case, even though a deadlock had not been reported, the jury

had been deliberating for two and one-half days, and had sent the

court a question which indicated they were having a problem with

the concept of unanimity with regard to the more serious offense.

8 After the trial court discussed the first two elements of the

crime of murder, it stated: Now, the third element which the state

previously pointed out to you.”

The defendant also takes issue with the charge given on man-

slaughter, which reads as follows: “Now, intent, as I have already

and

say, every person is presumed to intend the natural and necessary

consequences of his acts. It is often impossible and never necessary

proved only by circumstantial evidence, as I have defined that term

for you. What a person's purpose or intention has

very largely a matter of inference.

“A person may take the stand and testify directly as to what his

or her purpose or intention was or was not. That testimony, as I

have told you, can be believed by you or not, according to whether or

not you feel it warrants belief, but no witness can be expected to

come here and testify that he looked into another person s mind and

saw therein a certain purpose or intention. The only way which a

jury can determine what a person’s purpose or intention was at any

given time, aside from that person’s own testimony, is by deter-

mining what that person’s conduct was and what the circumstances

In response, the court thereafter reinstructed them, and gave almost

verbatim its earlier charges with respect to the two crimes.

9 In Sandstrom u. Montana, 442 U.S. 510, 99 8. Ct. 2450, 61 L.

Ed. 2d 39 (1979), the United States Supreme Court held that a jury

instruction that the law presumes that a person intends the

ordinary consequences of his voluntary acts violates the due process

clause of the fourteenth amendment, because a reasonable juror could

32A

interpret this instruction as a burden-shifting presumption, like that

invalidated in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44

L.Ed.2d 508 (1975), or as a conclusive presumption, like those

invalidated in United States v. United States Gypsum Co., 438 U.S.

422, 98 S. Ct. 2864, 57 L.Ed.2d 854 (1978), and Morissette v. United

States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952).

which a person may have, that is what a person's purpose, design,

intention was is necessarily a matter of inference. A man may take

the witness stand and testify directly as to what his purpose or

intention was, and that testimony you can believe or not, according

to whether or not it warrants belief or not. But no witness can be

expected to come here and testify that he looked into another

person’s mind and saw therein a certain purpose or intention or

certain knowledge. The only way in which a jury can determine what

a persons purpose or intention was, at any given time, aside from

that person's own testimony, is by determining what that person's

conduct was and what the circumstances were surrounding that con-

duct, and from those, infer what his purpose or intention was. Now

draw such an inference is not only the privilege, but it is also the

of a jury, provided, of course, the inference drawn is a reason-

able one and a logical one. Now, one that uses a deadly weapon upon

a vital part of another will be deemed to have intended the probable

result of that act, and from such a circumstance a proper inference

may be drawn in some cases that there was the intent to cause the

death. Any inference that may be drawn from the nature of the

the case. State v. Arroyo, Conn. (41 Conn. L. J., No. 39, pp. 6, 7-

8) (1980).

11 The defendant's father, on the day of said conversation, said

to the defendant, ‘You know you're not suppose to talk to a juror.

12 Our disposition of this issue does not require us to reach all

of the claimed bases of error.

33A

Order of Connecticut Supreme Court

Denying Motion for Rehearing Dated

May 28, 1981

No. 9204

State of Connecticut Supreme Court

v State of Connecticut

Gary Stankowski May 28, 1981

ORDER

The defendant’s motion to reargue having been

presented to the court, it is hereby ordered DENIED.

By The Court,

/s/ Donald H. Dowling

CHIEF CLERK

Notice

Joseph Keefe

John T. Redway, State’s Attorney

Ernest J. Diette, Jr., Assistant

State’s Attorney

Edward J. Peters, Jr.

Clerk, Superior Court, Middlesex

May 28, 1981

34A

APPENDIX (3)

Relevant Portions of Charge to Jury

Portions of Trial Court’s Charge to Jury on May 16,

1978, May 17, 1978 and May 18, 1978

The jury in the instant matter was initially charged

in the late morning of May 15, 1978 and subsequently

received further instructions until they reached a verdict

over a two and one half day period on May 18th. The

Trial Court charged on the element of intent after

indicating that the information read:

“The Grand Jury within and for said

County, accuses Gary Stankowski, Falls Road,

East Haddam, Connecticut, of murder, and

charges that at the town of East Haddam, on

the 25th day of August, said Gary Stankowski.

with intent to cause the death of another

person, namely, Valerie Vickers, did cause the

death of such person by means of a deadly

weapon, to wit; a shotgun in violation of Sec-

tion 53a-54a, Subsection A of the General Stat-

utes.” (T. pp. 22-23, 5/16, 5/17, 5/18/78)

The Court further charged on the statute in

question as follows:

“Our statute concerning murder, which is

the one that I just referred to by number, as

far as it is pertinent to this case, reads in part

as follows: I quote now the pertinent sentence

from the statute which you will be concerned

with, ‘A person is guilty of murder when, with

intent to cause the death of another person, he

causes the death of such person. (T. p. 23,

5/16, 5/17, 5/18/78).

35A

The Court continued with an analysis of the statute

element in this case, is that the person causing

the death of the other person must have done

so with intent to cause such death. In other

words, the State must prove beyond a reason-

able doubt that the accused shot Valerie

Vickers with the intent to cause her death.

Now, intent is a mental process. A person's

intentions may be inferred from his conduct.

Every person under the law is presumed to

intend the natural and necessary consequences

of his acts. It is often impossible and never

necessary to prove criminal intent by direct

evidence. Ordinarily, intent can be proved only

by circumstantial evidence, as I have explained

that term to you. What a person’s purpose or

intention has been is necessarily very largely a

matter of inference. A person may take the

stand and testify directly as to what his or her

purpose or intention was. That testimony you

can believe or not, according to whether or not

you feel it warrants belief, but no witness can

° 36A

z

expected to come here and testify that he

into another person’s mind and saw

a certain purpose or intention. The only

which a jury can determine what a

’s purpose or intention was at any given

, aside from the person's own testimony, is

what that person’s conduct was

what the circumstances were surrounding

conduct, and from those, infer what his

il

1

the duty of a jury, provided, of course, the

inference drawn is a reasonable one, as I have

previously pointed out to you. [emphasis added]

(T. pp. 27-28, 5/16, 5/17, 5/18/78)

The Trial Court repeated the critical portion of its

charge on intent in instructing the jury on the lesser

included offense of Manslaughter. The portion of

instruction referred to is as follows:

“Now, intent, as I have already explained

to you, is a mental process. I have described to

you how that process operates and how it may

or may not be proved by the State. The per-

son’s intention may be inferred from his

conduct. Here, I am, in effect, repeating what I

have already told you and that is to say, every

person is presumed to intend the natural and

necessary consequences of his acts. It is often

impossible and never necessary to prove crim-

inal intent by direct evidence. Ordinarily, intent

can be proved only by circumstantial evidence,

as I have defined that term for you. What a

person's purpose or intention has been is neces-

sarily very largely a matter of inference.

A person may take the stand and testify

directly as to what his or her purpose or inten-

tion was or was not. That testimony, as I have

told you, can be believed by you or not, accord-

ing to whether or not you feel it warrants

37A

and from those, infer what his purpose or

intention was at the time the conduct was

engaged in. (T. pp. 34-35, 5/16, 5/17, 5/18/78)

{emphasis added]

The Trial Court, later in its instructions, sum-

marized as follows:

much disputed fact here. Who did what

question is why. That is really the issue. It is

for you to decide whether the Defendant had

such an intent at the time of the shooting and

whether it was intended that he caused the

death of Valerie Vickers, or whether it was in-

tended that he only cause a serious physical

injury, or as the defense claims, with regard to

the testimony of her grabbing the gun and that

it was pure accident and that he had no inten-

tion of any kind to cause any harm, neither

death nor serious physical injury. If you find

that he had a sufficient intent to cause serious

physical injury to Valerie Vickers and that

she died as a result of the acts of the Defen-

dant, then you must find him guilty of man-

slaughter in the first degree. If you do not so

find, then he is not guilty of that charge

either.” (T. pp. 41, 42, 5/16, 5/17, 5/18/78)

{emphasis added]

38A

“The third element which the State must

prove, that is, the person causing the death of

cause her death. Now, intent is a mental

process. A person’s intention may be inferred

from his conduct. Every person is presumed to

intend the natural and necessary consequences

of his act. It is often impossible and never

necessary to prove criminal intent by direct

evidence. Ordinarily, intent can be proved only

by circumstantial evidence, as I explained the

term circumstantial evidence to you previously.

Now, what a person’s purpose or intentions

has been is necessarily very largely a matter of

inference. A person may take the stand and

testify directly as to what his or her purpose or

intention was. That testimony you can believe

or not, according to whether or not it warrants

belief, but no witness can be expected to come

up here and testify that he looked into another

person’s mind and saw therein a certain

purpose or intention. The only way in which a

jury can determine what a person's purpose or

39A

intention was at any given time, aside from

that own person's testimony, is by determining

what that person’s conduct was and what the

circumstances were surrounding that conduct,

and from those, infer what his purpose or

intention was. It is not only a privilege to draw

such an inference, but it is also the duty of a

jury, provided, of course, the inference drawn is

a reasonable one. In this case, therefore, it is

part of your duty to draw all reasonable infer-

ences from the conduct of the accused in light

of the surrounding circumstances as to what

purpose or intention was in his mind at various

times, and most importantly, in this case, at

the time he shot Valerie Vickers, if you find

that he did, in fact, shoot her....

In considering the meaning of this third

element, that is, the intent to cause the death

of another person, you must keep in mind

the definition of the word intentionally as

defined in our Penal Code. This Section states

that, ‘A person acts intentionally with respect

to a result or to conduct described by a statute

defining an offense when his conscious objec-

tive is to cause such result or to engage in

such conduct. (T. pp. 70, 71, 72, 5/16, 5/17,

5/18/78) [Emphasis added]

The court went on to charge on the lesser included

offense of manslaughter on the issue of intent charged,

in part, as follows:

“Now, intent, as I have pointed out to you,

is presumed to intend the natural and neces-

sary consequences of his acts. It is often

40A

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jury can determine what a

intention was at any given time, aside from

that person's own testimony, is by determining

what that person’s conduct was and what the

circumstances were surrounding that conduct,

and from those, infer what his or her purpose

or intention was. (T. pp. 77, 78, 5/16, 5/17,

5/18/78) [Emphasis added]

The critical issue in the Stankowski trial was

whether or not the taking of the victim's life was in-

tentional or an accident and the Court so indicated in

the Charge to the jury. The Trial Court charged:

“For a case of this nature, it seems to me

the issues are fundamentally clear. There is not

much disputed fact here. Who did what to

whom, that is pretty much conceded here. The

question is why. That is really the issue. It is

for you to decide whether the Defendant had

such an intent at the time of the shooting and

whether it was intended that he caused the

death of Valerie Vickers, or whether it was in-

tended that he only cause a serious physical

injury or as the defense claims, with regard to

41A

2 N

333413 11215

42A

APPENDIX (4)

Petitioner's Motion to in the

Connecticut Supreme Court

the Failure to Decide Constitutional Issues

No, 9204

State of Connecticut Supreme Court

v. State of Connecticut

Gary Stankowski May 19, 1981

MOTION TO REARGUE

The appellant, Gary Stankowski, moves to reargue

the above entitled matter, pursuant to Sections 3111

and 3111A of the Connecticut Practice Book, for the

reason that the Court in its decision reported in 42

Conn, IL. J. No, 46, p. 6 (May 12, 1981), considering

whether or not the Trial Court erred in excluding the

testimony of a six year old child in Part III at pp. 11-

12, did not rule upon the constitutional issues raised by

the appellant, Gary Stankowski, and particularly the

issues regarding exculpatory evidence and the right to

present a defense,

DEFENDANT/APPELLANT

By /a/ Edward J, Peters, Jr.

Edward J. Peters, Jr.

By (/ Joseph F. Keefe

Joseph F. Keefe

43A

The foregoing motion ha been duly presented

and heard, it is hereby GRANTED/DENIED.

BY THE COURT;

Dated. 1981

Judge

CERTIFICATION OF SERVICE

I hereby certify that a copy of the foregoing was

mailed to John T. Redway, State's Attorney, P. O. Box

757, Middletown, Conn.; Ernest J. Diette, Jr., Assistant

State's Attorney, 100 South Turnpike Road, Walling-

ford, Conn. and Joseph F. Keefe, Neg., 170 Water

Street, Torrington, Conn., on May 19, 1981,

/ai Edward J. Peters, Jr.

Edward J. Peters, Jr.

44A

APPENDIX (5)

Motion to Suppress a Portion of the

Testimony of Trooper David Horan

Pursuant to Article 1, Section 8 of the Connecticut

Constitution, and the 14th and 5th Amendments of the

United States Constitution, the Defendant herein moves

to Suppress the testimony of Trooper David Horan as

the same relates to any of the statements made by the

Defendant, Gary Stankowski between the hours of 0005

and 0116 on August 26, 1977. In support of said

Motion, the Defendant relies upon the following facta:

1. On or before 0005, on August 26, 1977, the Defen-

* was taken into physical custody by the Connecti-

cut State Police Department, handcuffed and strapped

into a stretcher.

2. On or before said time as aforementioned, the

Defendant was delivered into the custody of

David Horan, and by the said Trooper David Horan and

others, placed within the confines of an ambulance,

J. At or about said time, the Defendant, accom

panied in the rear of the ambulance by the said Trooper

David Horan, was taken to the Colchester barracks,

wherein he was held in confinement for an undetermined

period of time while the police were conducting their

investigation into the death of one, Valerie Vickers,

4. At or about 0116 of August 26, 1977, it is the

testimony of Trooper David Horan that he firet warned

the Defendant of certain rights, which rights were

guaranteed to him under the Connecticut and United

States Constitution as aforementioned,

5. Although the Defendant was in custody and

under arrest, the police who had an affirmative duty to

warn him of his Constitutional rights, failed to do so for

one hour and ten minutes during which time it is alleged

465A

Defendant to Trooper Horan and others between the

times of 0005 hours on August 26, 1977, and 0115 hours

on said date.

RESPECTFULLY SUBMITTED

DEFENDANT

GARY STANKOWSKI

By Edward J. Peters, Jr.

His Attorney

Filed April 20, 1978.

ORDER

The above Motion to Suppress a Portion of the

evidence offered by Trooper David Horan, having been

heard, is hereby DENIED.

BY THE COURT Naruk. J.)

Michael Kokoszka

Temp. Asst. Clerk

April 21, 1978.

Record Conn. Sup. Ct., pp. 2-4.

46A

APPENDIX (6)

Statements Trooper Horan Read

To Jury Over Petitioner’s Objection

(Trooper Horan called by the State on direct examina-

tion)

A. My notes indicate, Everything works out badly

for me. Kill me, man. Shoot me, man. You are going to

have me arrested for the rest of my life. Shoot me. I'd

rather die. You guys arrested me for murder. I want to

die. I t care if you lock me up forever. Please, man,

I didn’t kill nobody. You guys are all assholes. I will

blow your fucking brains out. I am going to the Pardon

Board. They will let me out and I will have a clean

record. Then I will blow all your fucking brains out,

especially Trotochaud, that asshole.” (T. p. 43, 4/25/78)

A. “If you're going to accuse me of murder, please

shoot me in the back of the head. No one is ever going

to believe me. I didn’t do anything. It didn’t happen.

Shoot me, shoot me. I love that girl, I loved Val. I loved

that girl. Shoot me, shoot me. Please, Officer, kill me.

Know what I’m so worried about, I have a record for

disorderly conduct and using a car without the owner's

permission. You are locking me up forever. I want to

die. Shoot me. I love Val. Punch me, punch me. Hit me

right between the tits. I swear, man, just hit me. (T. p.

44, 4/25/78)

A. “Where is the girl I shot, Val? If she is dead,

you might as well kill me. Her brother will get me. He

hated me. I didn’t do it on purpose. It was an accident.

I killed a girl. You have got a gun, please shoot me. You

don’t know how I feel. I tried so hard to please my

family and everything I do is a failure. That’s why I

don’t care if you kill me. I seen the gun go off. I seen

her face go blue. I saw her eyes open up and die. I

didn’t do it on purpose.” (T. p. 48, 4/25/78)

47A