# Petition — Stankowski v. Connecticut

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 1052

## Text

| 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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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

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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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5 fee F 5
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
defense has the burden of proof on this.

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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
: 1
mo
ROT
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2584%3A1. Public record. Not legal advice.