Record and brief — Connecticut v. Smith

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I Oifice - Supren t

81 1 3 FILED

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Boge 14 on

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D —

IN THE

Supreme Court of the United States

October Term, 198

THE STATE OF CONNECTICUT

Petitioner,

v.

LESTER SMITH

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE —

SUPERIOR COURT OF THE STATE OF CONNECTICUT,

JUDICIAL DISTRICT OF WATERBURY

FRANCIS M. MCDONALD

State’s Attorney

F. PATRICK O’SULLIVAN

Assistant State’s Attorney

300 Grand Street

Waterbury, CT 06702

P. O. Box 1245

(203) 756-4431

QUESTIONS PRESENTED

A. Is the dismissal by the Supreme Court of Connecticut of

the State of Connecticut's appeal of a trial court's order suppress-

ing the defendant's confession a final judgment sufficient to give

rise to this Court's certiorari jurisdiction?

B. Did the Connecticut trial court properly apply the decision

of Edwards v. Arizona to the facts of this case?

TABLE OF CONTENTS

Page

ß i

— . iii

r iii

Constitutional and Statutory Provisions . . . . . . . . . iii

— — 2

— . —11— — 6

8 —— 16

TABLE OF AUTHORITIES

CASES

Page

Abney v. United States, 431 U.S. 651 . — 8

Ern 13

einne 6

ne esesennsccsenses 12

Cohen v. Beneficial Finance Corporation, 337 US. 541 . 8

Dickson v. Petrolium Conversion Corp., 338 U.S. 507 . 8

Eduards v. Arizona, U.S. , 101 S.Ct. 1880 . 4

rn .. 14

Gellespie v. United States Steel Corp., 379 U.S. 148 .. 7

Jenkins v. Deleware, 395 U.S. 213—•—k—P! . —.—'“—.—— 15

Johnson v. New Jersey, 384 U.S. 719 . . . . . 14

t ce nen nnen TEED 8

Larsonv. Domestic and Foreign Commerce Corp.,337US.682 .. 8

Linkletter v. Walker, 381 U.S. 618 ———ꝛ——bͥ“—hZ.x—ç.—.—99⁊—— 14

Michigan v. Mosley, 423 U.S. 96... . . . . . . . . . . 11, 13

rene 13

North Dakota Pharmacy Board v.Snyder’s Stores, 414 US. 156 .. 6

People v. Cunningham, 49 N.Y. 2d. 203 . . . . . 14

Radio Station WOW v. Johnson, 326 U.S. 120 . 6

D OOO en eee eee 7

CASES [ Continued

Page

D Te 12

State v. Lloyd, 43 Conn. Law Journal 5. . . . . 7

n 7

amn nee. 12

i / 14

Tehan v. United States ex rel. Shott, 382 U.S. 406 . . . 15

United States v. Brown, 457 F.2d. 731 . . . 12

United States v. Brown, 569 F.2d. 236 . . . . . . . . . 12

United States v. Charlton, 565 F.2d. 86 . . ... 13

United States v. Cobbs, 481 F.2d. 196 . . . . . 12

United Staies v. General Motors Corp., 323 U.S. 337 . . 8

nnen 12

United States v. Hauck, 486 F. 2d. 1296 . . . . . .. 13

United States v. Phaester, 544 F.2d. 353 . . . .. 13

United States v. Thomas, 474 F.2d. 110 . . . 3

bite v. Finkbeiner, 611 F.2d. 186. : .. .. . . 13

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment Five . . . .. . iii

United States Constitution, Amendment Fourteen ...................++- iii

STATUATORY PROVISIONS

1 — 4

T ͤ——— 8

. sxcanens iii, G, 8

OPINION BELOW

I. CITATION

The decision of the Connecticut Supreme Court granting the

defendant's motion to dismiss the state’s appeal is not reported.

A copy of the Order dismissing the appeal is attached.

The decision of the Connecticut Superior Court granting the

defendant’s motion to suppress his confession is likewise not re-

ported. The Memorandum of the trial judge deciding the motion

is attached.

II. JURISDICTIONAL GROUNDS

On july 27, 1981, the Superior Court, the trial court in this

matter, entered an order that the confession of the defendant be

suppressed. That ruling was appealed and on October 15, 1981,

the Connecticut Supreme Court dismissed the appeal. The Juris-

diction of this court is invoked under authority of 28 U.S.C. Section

1257(3).

III. CONSTITUTIONAL AND STATUTORY PROVISIONS

The State of Connecticut submits that this case was decided in

the Connecticut Superior Court upon the Fifth Amendment and

Section I of the Fourteenth Amendment to the United States Con-

stitution:

1) No person shall be held to answer for a

capital, or otherwise infamous crime, unless on 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 tirne of War

or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy of

life or limb, nor shall be compelled in any criminal

sas

case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due pro-

cess of law; nor shall private property be taken for

public use, without just compensation.

2) All persons born or naturalized in the

United States, and subject to the jurisdiction there-

of, 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 im-

munities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny to

any person within its jurisdiction the equal protec-

tion of the laws.

iv

Supreme Court of the United States

October Term, 198

THE STATE OF CONNECTICUT,

Petitioner,

v.

LESTER SMITH,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CONNECTICUT

The petitioner, the State of Connecticut, respectfully prays that

a Writ of Certiorari issue to review the judgment of the Supreme

Court of the State of Connecticut entered in this proceeding on

Ocober 15, 1981.

STATEMENT OF CASE

The defendant, Lester Smith, of Waterbury, Connecticut, has

had his confession suppressed on Constitutional grounds. The

Supreme Court of Connecticut has refused to review this suppres-

sion on its merits.

STATEMENT OF FACTS

On Friday, February 1, 1980, two black males entered the

Willow Pharmacy in Waterbury, Connecticut. Both were armed

with handguns. They ordered the pharmacist to give them nar-

cotics from the store safe and also took the contents of the cash

register. The pharmacist and a customer were then thrown to the

floor and taped together.

Unknown to the robbers, the pharmacist had triggered a silent

alarm and before they were able to leave the store a Waterbury

police officer arrived on the scene. As he entered the store, one of

the robbers fired a shot at him. He was then disarmed and the

robbers fled the scene taking the officer's gun with them. Lester

Smith was connected with the robbery when the car used in the

holdup was subsequently traced to him. A warrant was procured

for his arrest and he was arrested on Saturday, February 2, 1980.

(T-22,5/5/81).

At the time of his arrest Smith was warned of his rights and

indicated that he wished to speak to his father abour getting an

attorney. (T-94, 5/5/81). The police offered to call an attorney

of his choice but he proffered no name other than that he did not

want the public defender. (T-95, 5/5/81). Because Mr. Smith

did not ask for an attorney but merely for his father, the police

continued to talk to him. (T-98, 5/5/81). During this interview

the defendant made no inculpatory statements or admissions. (T-

99,5/5/81).

On February 3, a detective who had not participated in the in-

terrogation the previous day, received word that Smith wished to

see him. (T-16, 5/6/81). He and another detective, who had

participated in the previous interrogation, brought the defendant

from a detention cell in the Waterbury Police Department up to

the detective division. He expressed a desire to use the phone and

was told he was free to call anyone he wanted to call. (T-17,

5/6/81). He called his girlfriend, spoke with her awhile and then

requested that she be allowed to visit him. (J- 17, 5/6/81). While

3

awaiting the visitor, Smith was asked if he wished to give a state-

ment and indicated he would prefer to talk to his girlfriend first.

(T-17-18, 5/6/81). She arrived, stayed forty-five minutes to an

hour, and when she left the defendant was returned to the deten-

tion cell, having declined to speak with police at that time. (T-18-

19,5/6/81).

On February 4, two detectives who were unaware of the events

of either Saturday or Sunday visited the defendant in his detention

cell in the Waterbury Police Department. (T-127-128, 5/5/81).

Smith agreed to talk to these officers, was brought to the detective

bureau and was advised of his rights. (T-129-130, 5/5/81).

Smith expressed a willingness to give a statement and wanted to

know what the detectives could “do for him.” (T-132-133, 5/5/

81). He was told no promises would be made but chat they would

pass along to the prosecutor the amount of bond he could post.

This ultimately was done. (T-133-134, 5/5/81). Smith then had

coffee and a sandwich as he told police about his involvement

with another man in the robbery at the Willow Pharmacy during

which the shot was fired at the police officer.

The defendant filed a motion to suppress his confession and after

a pretrial hearing that motion was granted, based upon the trial

judge’s understanding of Edwards v. Arizona, US. , 101 S.Ct.

1880. The State attempted to appeal this ruling without dismiss-

ing the charges against the defendant since oher evidence of his

guilt still existed. The Connecticut Supreme Court refused to en-

tertain the appeal, however, and granted the defendant’s motion

to dismiss it as interlocutory. This was done even though the State

claimed irreparable harm if forced to try the defendant prior to the

suppression issue being reviewed and despite the fact that in other

circumstances, where defendants claimed irreparable harin, review

was allowed prior to trial.

Unfortunately, Connecticut does not have a statute comparable

to 18 U.S. C., Section 3731 which would allow appeals of pretrial

suppression rulings. The State did, however, specifically argue to

the Connecticut Supreme Court that irreparable harm would result

4

should the convincing confession evidence be withheld from the

jury and the defendant acquitted. In that event, the suppression

order would never be reviewed by the Connecticut court and if it

were erroneous, retrial of the defendant would be precluded.

The Connecticut Supreme Court having refused to hear this

appeal, the State of Connecticut now seeks review of the suppres-

sion order in this Court, the interpretation of whose decision gave

rise to that order.

ARGUMENT OF LAW

I.

Review under 28 U.S.C. 1257 may be had only of final judg-

ments rendered by the highest court of a state. The “finality” re-

quirement serves several functions including: 1) the avoidance of

piecemeal review hy federal courts of state court decisions; 2) the

avoidance of advisory opinions; 3) the avoidance of federal in-

trusion in state affairs. North Dakota Pharmacy v. Snyder's Stores,

414 US. 156, 159. But the concept of finality has a penumbral

area,” as Mr. Justice Frankfurter pointed out in Radio Station

WOW v. Johnson, 326 US. 120, 124.

It is submitted that a case which falls within this penumbral

area is California v. Stewart, 384 U.S. 436. There, the Supreme

Court of California reversed a conviction on grounds that the

method used to obtain the defendant's confession violated the

United States Constitution. A new trial was ordered and the State

of California sought certiorari. This Court granted the Writ and

found the state decision to be final since an acquittal of the defen-

dant at his new trial would have precluded an appeal by the state

under California law.

The parallel between Stewart and the present case is clear. Just

as in the California case, where the state would have been pre-

cluded by state law from retrying that defendant after an acquittal,

here the State of Connecticut would be precluded from retrying

Lester Smith by the Double Jeopardy provision of the Fifth

Amendment to the United States Constitution. This would be so

even if on appeal the trial judge’s suppression of Smith’s confession

were ultimately found to have been erroneous. In light of this,

it seems not only a poor use of judicial time but also patently un-

fair to require a complete trial of this case before review of the

suppression order is accorded the state. Since review was granted

by this Court in Stewart, it should likewise be allowed here.

It is worthy of note that on other occasions the Connecticut

Supreme Court has accorded defendants pretrial review of adverse

6

rulings. In State v. Bell, 179 Conn. 98 (1979), that court re-

viewed, prior to trial, the denial of an application for treatment

as a Youthful Offender. And in State v. Moeller, 178 Conn. 67

(1979) pretrial review was accorded a defendant who claimed he

was twice being placed in jeopardy for the same crime. Finally, in

State v. Lloyd, 43 Conn. Law Journal 5 (8/4/81), review was

granted where a dismissal of charges was denied following entry

of a nolle prosequi by the state.

Certainly the issue at stake in this case is at least as important

as in those cases mentioned above, yet review was denied here

while it was granted there. The only apparent difference is that

here the aggrieved party is the State rather than an irdividual de-

fendant.

Another case which appears to fall within the “penumbral area”

spoken of by Justice Frankfurter is Gellespie v. United States Steel

Corporation, 379 U.S. 148. There, the petitioner sued the res-

pondent to recover damages for the death of her son, a seaman

who had been killed while working on the respondent's dock. She

sued under both the Jones Act and an Ohio wrongful death statute.

The District Court, ruling that the Jones Act was her exclusive

remedy, struck all references to the Ohio statute. The petitioner

then appealed that ruling to the Court of Appeals which affirmed

the lower court ruling. Certiorari was granted by this Court.

In discussing the “finality” aspect of the case, this Court noted

that “final” does not necessarily mean the last possible order to be

made in a case. Rather, final:

. is frequently so close a question that decision

of that issue either way can be supported with

equally forceful arguments, and . . . it is impossible

to devise a formula to resolve all marginal cases

coming within what might be called the ‘twilight

zone’ of finality. Because of this difficulty this Court

has held that the requirement of finality is to be

given a ‘practical rather than a technical construc-

tion. Gellespie v. United States Steel, supra 152.

7

This Court also noted with approval in Gellespie language in

Dickson v. Petroleum Conversion Corp., 338 U.S. 507, 511, to the

effect that in deciding the finality issue the most important com-

peting considerations are “the inconvenience and costs of piece-

meal review on the one hand and the danger of denying justice by

delay on the other.”

Weighing the relevant criteria, this Court found the decision of

the District Court limiting relief to the Jones Act sufficiently final

to allow review. The Court then went on to note that delay of

perhaps a number of years in having the petitioner's rights de-

termined would work a great injustice since recovery would be cut

off as long as the District Judge’s order remained in force. As a

further reason for allowing review, this Court cited United States

v. General Motors Corp., 323 U.S. 337, for the proposition that

where a ruling is fundamental to the further conduct of the case,

review of that ruling may be had even where the case has not been

fully tried. See also Land v. Dollar, 330 US. 731; Larson v.

Domestic and Foreign Commerce Corp., 337 U.S. 682; Cohen v.

Beneficial Finance Corp., 337 U.S. 541.

It is true that Gellespie was decided under 28 U.S.C. Section

291 rather than under 28 U.S.C. Section 1257. It wou! appear,

however, that decisions construing the former are persuasive

authority in construing the latter, at least as far as the issue of

finality is concerned. Abney v. United States, 431 U.S. 651, 660.

Looking at the case at bar in light of both Stewart and Gellespie,

It seems clear that the decision of the Connecticut Supreme Court

not to review the suppression order on its merits is final. If the

State is forced to try Lester Smith without benefit of his confession,

double jeopardy would bar any meaningful review of the suppres-

sion. order. The State is, therefore, placed in the same situation as

was the State of California in the Stewart case. In both cases a

party is irreparable harmed by refusal of this Court to grant review

and that party is the people of each state. Just as this Court refused

to allow such an injustice to the people of California in Stewart,

it should do likewise for the people of Connecticut in this case.

8

And just as this Court refused to allow the petitioner in Gellespie

to suffer irreparable harm, so should it prevent similar harm to the

people of Connecticut in this case.

When this Court applies a constitutionally based exclusionary

rule to the states, as was done in Edwards v. Arizona, supra, other-

wise reliable evidence becomes unavailable in criminal prosecu-

tions. Since the states are now forced by the Federal Constitution

to operate under this rule, fairness demands that the federal judicial

system afford review in cases such as this prior to double jeopardy

banning meaningful review forever. If this Court does not provide

review and the Connecticut Supreme Court is allowed to avoid the

merits of this case, then the State is left utterly and completely

without a chance for review by this Court of the application of one

of ics decisions by a state court. This Court would never allow such

a situation to exist with regard to a defendant. Surely, the citizens

of the State of Connecticut deserve the same consideration.

II.

In suppressing the defendant's confession, the trial judge relied

upon this Court’s recent decision of Edwards v. Arizona, supra. In

that case the defendant, after having been arrested on a state

criminal charge and given his “Miranda Rights,” stated that he

wanted an attorney. The next day other officers went to the jail

where Edwards was being held and when he refused to see them

was informed by jail personnel that he “had to.” These officers

also warned Edwards of his rights and he subsequently gave them

a confession.

The trial judge in this case acknowledged that it is factually dis-

tinguishable from Edwards (Memorandum, p. 26). He felt bound,

however, to suppress this defendant’s confession because of what

he perceived to be a “per se” rule that once a person who is under

arrest requests counsel no interrogation can occur unless the ac-

cused himself “initiates” further contact with the police (Memor-

andum p. 26, 27).

The facts of this case indicate that on the day of his arrest,

February 2, the defendant requested to speak to his father about

getting an attorney. The police offered to call an attorney, but he

merely indicated that he did not want the public defender. No

attorney's name was offered by the defendant. The next day,

February 3, the defendant himself asked to speak with police and

his request was granted. During this interview he was allowed to

use the telephone, and instead of calling an attorney or even call-

ing his father about an attorney, either of which call he could have

made, he telephoned his girlfriend. This opportunity to use the

telephone seems to fulfill the requirement of Edwards that counsel

be made available to the defendant.

The holding in Edwards required that once an attorney has been

clearly requested, any confessing resulting from a subsequent in-

terrogation will be suppressed unless the defendant initiates con-

tact. The key, then, as Mr. Justice Powell pointed out in his

concurring opinion, is how the word “initiates” is construed. In

Edwards, where the police went to the jail to see the defendant,

where he unequivocally expressed a desire not to see them, where

he was told he had to talk to them and was then taken from his

cell and brought to them, clearly he did not initiate contact.

In contrast to Edwards, here the police did not have to go to a

jail to see Smith since he was being held in the police station. He

did not refuse to speak to them but, rather, was willing to do so,

particularly if the police could “do anything for him.” And he was

not brought to where the police were waiting but rather willingly

accompanied them up to the detective bureau. Thus, the question

of who initiated contact here is far more difficult to answer than it

was in Edwards.

As was also pointed out in the Powell concurrence, communica-

tion between the police and a suspect in custody is not uncommon.

And the police surely have a right to inquire as to whether a de-

fendant has changed his mind about speaking to ther without an

attorney being present. Nothing in the Constitution prevents a

defendant from reconsidering or the police from asking him about

10

that change of mind. As Mr. Justice White pointed out in his con-

curring opinion in Michigan v. Mosley, 423 US. 96, 109, this

Court has consistently refused to insulate a defendant from the

results of his own intelligent and voluntary decisions about his

case.

In concurring in the result in Edwards, Chief Justice Burger

noted that protections accorded a suspect in a criminal case, like

so many other good things, can be carried too far. That is exactly

what is happening in this case. The Constitution is being twisted

and reshaped in an attempt to give this defendant more protection

than the drafters of the Constitution ever intended.

Edwards held that once the right to counsel has been asserted,

a suspect is not subject to further interrogation unless he initiates

contact. But, apparently, this requirement may be eliminated if,

in the time between the request for counsel and the subsequent

confession, an opportunity to contact counsel is given. Here, not

only was contact re-established by the defendant but in the interim

he had a method of contacting counsel made available to him. All

he had to do was telephone a lawyer during the February 3 inter-

view, but instead he telephoned his girlfriend.

The problem that arises factually in this case is that the de-

fendant's confession did not follow upon his request to see police

on Sunday, February 3. Rather, it took place the following day,

Monday, February 4. That contact was with officers who did not

know of the defendant’s Saturday request to see his father about

getting an attorney. This is in contrast to the situation in Edwards

where the officers who went to question Edwards were “colleagues

of the detectives who had questioned Edwards the previous night,”

Edwards v. Arizona, supra 1882, and must have known of his

request for counsel.

When police visited Lester Smith on February 4 he was again

warned of his rights and made no mention of wanting to see an

attorney, his father, his girlfriend or anyone else. All he wanted

was to know if the police would make some sort of a deal with

11

him. Surely his failure to reassert a desire for counsel, if in fact

he had ever unequivocally made that request, indicates his clear

desire to abandon his intention of seeking counsel. Cobbs v.

Robinson, 528 F.2d. 1331 (2nd Cir. 1975), cert. denied, 96,

S.Ct. 1419.

Even if this Court does find this case sufficiently similar to

Edwards to cause it to come within the ambit of the holding of

that case, Edwards should not be applied to this case because the

confession in this case was given on February 4, 1980, and Edwards

was not decided until May 18, 1981. Until that time there was no

indication that this Court would interpret the right to counsel re-

quirement to the U.S. Constitution the way it did.

Certainly, the Waterbury police acted within the requirements

of Connecticut law. In both State v. Cobbs, 164 Conn. 402

(1973) and State v. Moscone, 171 Conn. 500 (1976), the Con-

necticut Supreme Court examined the issue of waiver of counsel

after an initial request and in both cases the Court said that

once an accused has requested counsel he may thereafter waive

hat right provided that in the interim he has had a full oppor-

tunity to obtain counsel. The factual situation in Cobbs is remar-

kably similar to that of the case at bar. There the defendant in-

dicated a desire for counsel, was allowed to us. the phone and

instead of calling an attorney called his grandmother. She came

to the police station and, after speaking with her, Cobbs gave a

confession. The Court found a knowing and intelligent waiver as

well as an opportunity to obtain counsel of which the defendant

did not avail himself. Cobbs then filed a Writ of Habeas Corpus

and the decision of the Connecticut Supreme Court was upheld by

the Second Circuit Court of Appeals in Cobbs v. Robinson, supra.

Other Circuit Courts of Appeals considering this issue have also

found a knowing and intelligent waiver to be possible despite a

previous request for counsel. See United States v. Brown, 457

F.2d. 731, (1st. Cir. 1972); United States v. Cobbs, 481 F.2d.

196 (3rd. Cir. 1973) cert. denied, 414 U.S. 980; United States v.

Hart, 619 F.2d. 325 (4th. Cir. 1980); United States v. Brown,

12

569 F.2d. 236 (Sth. Cir. 1978), rehearing denied April 12, 1978;

United States v. Charlton, 565 F.2d. 86 (6th. Cir. 1977), cert.

denied, 434 U.S. 1070; White v. Finkbeiner, 611 F.2d. 186 (7th.

Cir. 1979) rehearing en banc denied Feb. 15, 1980; United States

v. Hauck, 486 F.2d. 1296 (8th. Cir. 1978), rehearing denied

Dec. 18, 1978; United States v. Pheaster, 544 F.2d. 353 (9th. Cir.

1976), cert. denied, 429 U.S. 1099; United States v. Thomas, 474

F.2d. 110 (10th. Cir. 1972) cert. denied, 412 U.S. 932.

In deciding Edwards v. Arizona, supra, this Court announced

a new constitutional rule. Examination of the language of pre-

vious cases, most notably Miranda v. Arizona, 384 US. 436,

Michigan v. Mosley, 423 U.S. 96, and Brewer v. Williams, 430

US. 387, would not have led even the most expansive reader to

suspect that the rule announced in Edwards was forthcoming. In

Mosley this Court said that once a person has expressed a wish to

remain silent that right could subsequently be waived so long as

his right to cut off questioning had been scrupulously honored in

the interm. In a footnote this Court suggested that this decision

dealt only with the right to remain silent. However, in Miranda

this Court said:

if an individual states that he wants an attor-

ney, the interrogation | ust cease until an attorney

is present. . If the interrogation continues without

the presence of an attorney and a statement is taken,

a heavy burden rests on the government to demon-

strate that the defendant knowingly and intelligent-

ly waived his privilege against self-incrimination

and his right to retained or appointed counsel.”

(Emphasis added) 384 U.S. at 474.

And in Brewer this Court said:

“The Court of Appeals did not hold, nor do we,

that under the circumstances of this case Williams

could not, without notice to counsel, waive his

13

rights under the Sixth and Fourteenth Amend-

ments. It only held, as do we, that he did not.”

(Emphasis added) 430 U.S. at 405.

It has been clear since Linkletter v. Walker, 381 US. 618,

that the Constitution does not require retrospective effect for de-

cisions announcing new constitutional rules which affect criminal

cases. The criteria used to determine whether retroactivity shall be

required include: 1) the purpose to be served by the new standard;

2) the extent of reliance by law enforcement authorities on the

old standard; and 3) the effect on the administration of criminal

justice of retroactive application of the new standard. Stovall v.

Denno, 388 US. 293.

The purpose of the Edwards rule is to ensure that a confession

given after a request for counsel is the product of a free and volun-

tary waiver or relinquishing of the right to counsel. In this case,

the trial judge found that the defendant was knowledgeable in the

workings of the criminal justice system, that he was not subjected

to intimidation or physical force, that his will was not overborne

and that his confession was voluntary. (Memorandum, p. 11).

There was no direct evidence offered concerning police reliance on

the old standard. However, such reliance must be assumed since

everyone is presumed to know the law and since the law on

February 4, 1981, as interpreted by the Connecticut Supreme Court

and the United States Courts of Appeals, would have found a

waiver under the circumstances presented here. Finally, it is

anticipated that retroactivity will have an adverse affect on the

administration of criminal justice since apparently only one juris-

diction ascribed to the rule announced in Edwards prior to the date

of that decision. See People v. Cunningham, 49 N.Y. 2d 203.

But even that case was rooted in New York rather than U.S.

Constitutional law.

Petitioner is aware of the holding in Johnson v. New Jersey,

384 US. 719 to the effect that the holdings in Escobedo v. Illinois,

378 US. 478 and Miranda v. Arizona, supta would receive appli-

14

cation only from the dates of those decisions. However, in Jenkins

v. Delaware, 395 U.S. 213 this Court held that Miranda’s standards

would not be applied to post- Miranda retrials of cases originally

tried prior to that decision. In light of the purpose of the rule

announced in Edwards, which, it is submitted, was satisfied in this

case according to the findings of the trial judge, and the reliance

by police on the previous standard which, it is submitted, was ex-

tensive, the application of the Edwards standard to this case would

serve only one purpose. It would allow a self-admitted armed

robber to escape punishment because of a “legal technicality.”

The exclusionary rule, which was intended to give force and

effect to the Fourth Amendment has became “a shelter to the

guilty” rather than “ a protection to the innocent.” Tehan v. United

States ex rel. Shott, 382 U.S. 406. This Court can reverse that

trend rather than perpetuating it. That change in direction must

start somewhere and this case has sufficient merit to make it the

first step in a new direction, a direction in which the Constitution

once again protects the innocent instead of sheltering the guilty.

15

CONCLUSION

In light of the foregoing, it is clear that if review is to be

accorded the State of Connecticut on the merits of this case it must

come from this Court. Only in this way will the trial judge’s

interpretation of Edwards v. Arizona be corrected.

THE STATE OF CONNECTICUT

Francis M. McDonald

F. Patrick O Sullivan

16

APPENDIX

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r TAS RC can LOTTE TET 25A

INDEX TO APPENDIX

NO. CR4-77369 SUPERIOR COURT

STATE OF CONNECTICUT : JUDICIAL DISTRICT

v. OF WATERBURY

LESTER SMITH July 27, 1981

10.

11.

MEMORANDUM OF DECISION ON DEFENDANT'S

MOTION TO SUPPRESS WRITTEN CONFESSION

AND ALL ORAL STATEMENTS MADE

WITHOUT BENEFIT OF COUNSEL

FINDING OF FACTS

Lester Smith was born on February 25, 1948.

On Saturday, February 2, 1980, Mr. Smith turned himself

in to the detective division at Waterbury Police Head-

quarters at about 11:30 a.m.

The charges arose out of a claimed occurrence at the Willow

Pharmacy at 214 Hillside Avenue, Waterbury, about 1:30

p.m. on February 1, 1980.

Detective Vincent Paolino and Detective Joseph Morgan

booked Smith in the customary fashion.

During the booking procedure Detective Morgan advised

Smith of his Miranda rights.

Smith’s father and woman companion Debra Baptiste ac-

companied Smith to the police station.

Shortly after booking Detective Vincent Paolino and De-

tective Morgan were asked to interview Smith on tape.

Detective Paolino had known Smith for some time.

The interview took place in an interview room in the de-

tective division, approximately from 12:30 to 1:00 p.m.

The tape recorder was visible on the single table in the

interview room.

Detective Morgan conducted the interrogation.

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$b gh Sb 8

Smith was advised of his Miranda rights during the inter-

view and shown a white Miranda card which he read.

The best available transcript of the interview follows:

“Interrogation of Lester Smith — Waterbury Police

Department February 2, 1980

Key: LS = Lester Smith

PO = Police Officer

Who do you want to call? Who's your lewyer? Do you

have anybody in mind that you want to call?

I want to call my mother or call my father.

Your father’s gone. He's gone. What kind of (inaud.)

What do you want to call him for?

So he can get me a lawyer.

You tell us who the lawyer, we can get you a lawyer if

that’s what you want.

I don’t want no public defender.

No, I said if you tell us who you want we'll call him for

you. (Pause) I'll get you a public defender, but first let me

advise you of your rights.

O.K.

Did you read these here? (Pause) That's not true.

That's not true.

I have been advised and know that I have a right to remain

silent.

That's what we're doing. We're advising you right now.

All right, you have the right to remain silent. Anything

you say can and will be used against you in a court of law.

You have a right to talk to a lawyer and have him present

with you while you are being questioned. If you can't afford

to hire a lawyer, one will be appointed to represent you

before any questioning if you wish. You can decide at any

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time to exercise these rights and not answer any questions

or make any statements. Understand your rights?

Veah.

OK listen I know you told that you're not, you're not in-

volved in this shooting right? You're saying that you didn’t

do the shooting?

Yeah, I was saying that I am not involved, period.

OK you're not involved in the robbery (inaud.). Tell me

where you were all day yesterday. Start in the morning,

what time did you get up, and go through the whole day.

You already boooked me right?

Yeah, but this is only for you, if you didn’t do it then tell

us where you were yesterday.

Oh, man, I just got through doing six years. I know how

the thing run, man, I know what your doing. I (inaud.)

understand what you're doing, understand this.

What did you do six years for, Les?

For robbery.

Was that the one down in New Haven?

No.

What was that for, Les?

New York.

A bank job?

Yeah.

OK, how, when did you get out of jail?

(Inaud.) January 16th.

Of 1980?

1979.

79 1-16-79. Where did you do your time?

Lewisburg.

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Oh, federal? OK and you went away when, in 73 maybe?

You robbed a bank in New York City? Whereabouts

Lester, do you remember?

That don’t have nothing to do with this.

I just want to make sure, verify your record.

Southern District, upper Manhattan.

You got out in 79. Have you been arrested since 79, Les?

No.

You been living in Waterbury all that time? Do you want

to tell us again what you did yesterday?

It’s not fair (inaud.). It’s not fair (inaud.).

We're giving you a chance, listen -

I got no right to be here.

OK listen - -

Lester - -

But because of Vinny we're giving you a chance to tell your

side of the story. Do you want to tell us what you did

yesterday?

Itold (inaud.).

Well you didn’t tell me, you told him. Just go through

the day briefly. Tell me what happened yesterday.

I got up at seven o clock. Inaud.). Took her to work.

Whose car did you have with (inaud. ) ?

Deborah’s mother’s car.

Why did you borrow her car?

I didn’t borrow it. I was doing some work (inaud.).

Now what happened?

That was a Thursday. Yesterday, right?

Right.

(Inaud.)

8 58 6

8 f 8

7

Why don t you get rid of it?

Who's your lawyer?

(Inaud. )

They want us to go out in the hall. Where are you Joe?

Just to the car can you go through it quick we got to go out

on our fucking calls. Son of a bitch. OK, you brought

Debbie to work rather, right Les?

Yes.

Then what happened, wehre did you go for the rest of the

day? Just briefly.

Came back home about a quarter to nine.

Yesterday morning?

I just (inaud.) James and Jasper at my house.

James and Jasper?

I had planned to drive the car to (inaud.) but I got a call

from Deborah’s father telling me tnat they were hiring

(inaud.) put in an application at the employment office. I

was there from I guess about ten to about twelve or some-

thing like that.

Were you by yourself?

I was in the employment office by myself.

Right, but when you went down, you went down with

Jasper and James?

Yeah. And then went to New Haven. Went to the Bama

Club. In and out in and out. We went to a boarding house

on Vernon Street.

And all this time, did you have the car?

No. left the car on (inaud.) Street.

On (inaud.) Sti cet at what time?

When I got back about a quarter to nine.

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S&S

Well after you took Deborah to work, you took the car

there back to (inaud.) Street and left it there?

See I had (inaud.) had to use the emergency brakes. The

brakes was fucked up on the car. That was the reason for

me using the car (inaud.) supposed to fix the brakes.

Why didn't you bring it to have the brakes fixed? Why

didn’t you bring it to have the brakes fixed?

Because I got no ride you know. The ride was there and

there was (inaud.).

Now both of these guys you were with were both from

New Haven.

I don’t know (inaud.).

That you worked at New Departure with?

I don’t know James.

James who?

I don’t know. I never met him. He's a friend of my uncle,

you could say.

Who's your uncle?

Jasper. Uncle, brother.

Who had the car Les?

James.

James.

(Inaud.) the car. See (inaud.) Jasper (inaud.) apartment

(inaud.).

Where do you live now Les?

I live with my parents (inaud.) Deborah.

Deborah, that’s the girl who was in here this morning.

We're going to have to go, we're going to bring him now,

we have to go. We'll have to come back after. Les, as soon

as they process your papers, you can make your call and

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21.

S&S &

we'll talk to you when we come back. Lester, are you on

parole now? No? Who's your P.O.?

Flamia.

Flamia, all right. That's since January of last year you're

been out? How much longer is your parole for - - how

much longer? What do you see him, once a week Les?

Once a month.

You have a nickname, don’t you?

No.

Alright.”

(END OF TAPE)

When Sgt. Frank Dest reported for duty at 6:00 a.m. on

Sunday, February 3, 1980, Smith had left word that he

wanted to see Sgt. Dest.

Sgt. Dest met with Smith in the general room of the detec-

tive division for about 30 to 45 minutes at about noon.

Telephone arrangements had been made with Baptiste to

come to the police station and during most of the time that

Smith was in the general room he was talking closely and

somewhat privately with Baptiste.

During this meeting Smith asked Baptiste to make arrange-

ments with his parents to get a lawyer.

During the meeting Smith told Dest he didn’t want to make

a statement then; he wanted to talk to his girl friend first.

Baptiste and Smith’s parents were at the office of Attorney

William St. John on Monday morning February 4, 1980,

at 9:00 a.m.

Attorney St. John did not arrive at the office until some time

after 10:00 a.m., at which time he was retained as a lawyer

for Smith.

Lt. Anthony Solomita came on duty about 9:00 a.m. Mon-

day, February 4.

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24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

36.

37.

He knew Smith had been arrested but did not know about

the taped interview or Smith’s statement thereon concerning

counsel.

About 9:45 a.m. Solomita and Sgt. Charles Messina went to

the cell block to talk to Smith.

He went with them to an interview room where Solomita

and Messina talked with Smith about 10 minutes before he

started to give a statement.

Sgt. Messina typed the statement as the interrogator pro-

ceeded.

The statement is not verbatim but substantially contains

what Smith told the two officers. (State’s exhibit A).

The interrogation was initiated by Lt. Solomita and Sgt.

Messina (Tr. p. 109, Tr. p. 112, Tr. p. 129).

Lt. Solomita and Sgt. Messina knew that arrangements at

the G.A. court on Kendrick Avenue commenced at 10:00

a.m.

Police station prisoners are normally transferred by van to

the G.A. somewhere around 10:00 a.m.

Lt. Solomita notified Smith of his Miranda rights befo.e the

statement was taken.

Smith was given his Miranda rights again as printed on the

voluntary statement form.

Smith initialed the Miranda form in four places.

Smith understood his Miranda rights fully.

Smith swore to the truth of the statement before Sgt. Segal.

The satement was concluded at 11:45 a.m.

Shortly thereafter Smith was taken to Kendrick Avenue

where he met with Baptiste, his parents, and Attorney St.

John.

During the interrogation Smith asked Lt. Solomita what he

could do for him.

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39.

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

52.

Lt. Solomita replied that he could do nothing but that he

would talk to the prosecutor about lowering the bond.

(Tr. p. 133).

Smith said he could make bond between $5000 and $10,000.

Smith wanted to be out of jail when his girl friend had her

baby.

While Sgt. Messina was in the police car preparing to take

Smith to Kendrick Avenue, he said he would take them to

Route 8 North and show them where he had disposed of a

gun involved in the crime.

He told the officers before they left for Route 8, that he had

lied and that he had given the gun to Michael Perry.

The officers then drove Smith to Kendrick Avenue, arriving

about 12:20 p.m.

Smith was on parole from a federal sentence in New York

when arrested and was knowledgeable in the workings of the

criminal justice system.

There was no physical force used on Smith.

There was no intimidation or pressure used on Smith other

than the normal intimidating effect of the setting.

Smith was not deprived of sleep, food, liquids, telephone

calls or cigarettes.

Smith’s statements were not brought about as a result of

promises by the police.

Lt. Solomita’s promise to speak to the prosecutor did not

promise any particular result.

Smith’s will was not overborne by the interrogation or

promise of Lt. Solomita.

Smith’s statements, written and oral, were voluntary.

Smith did not take the stand at the suppression hearing.

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DISCUSSION

The defendant has moved to suppress a written confession and

oral statements made by himself prior to his appearance, at

approximately 12:20 p.m. on Monday, February 4, at the Ken-

drick Avenue courthouse in Waterbury, Connecticut. In favor of

suppression, the defendant claims that the confession was involun-

tary under the due process clause, that the confession was the

tainted product of an illegal arrest in violation of the fourth and

fourteenth amendments, that it violated his sixth and fourteenth

amendments right to the assistance of counsel, and that it violated

his fifth and fourteenth amendments right to be free from com-

pulsory self-incrimination. The court has examined each of these

claims.

I.

VOLUNTARINESS

The ultimate test of the admissibility of any confession or extra-

judicial statement is its voluntariness. State v. Stankowski, 42

Conn. L.J. #46, 5 (5-12-81); Culombe v. Connecticut, 367 US.

568, 602, 81 S. Cr. 1860 (1961); Rogers v. Richmond, 365 US.

534, 544, 81 81 S. Ct. 735 (1961). A state must prove by a

preponderance of the evi ence that under all the circumstances a

particular confession is voiuntary. Lego v. Twomey, 404 U.S. 477,

489, 92 S. Cr. 619 (1972); State v. Hawthorne, 176 Conn. 367,

370 (1978); State v. Staples, 175 Conn. 398, 405, 406-407

(1978). The issue of voluntariness is one of fact for determination

by the trial court in the exercise of its legal discretion. State v.

Devine, 149 Conn. 640, 652 (1962). The discretion must, how-

ever, be exercised in accordance with constitutional standards of

due process. State v. Derrico, 41 Conn. L. J. #50, 7, 11 (6-10-80).

The test of voluntariness is whether an examination of all the

circumstances disclose 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, supra

at 544; Staples, supra at 408.

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The ultimate test remains. . . ‘Is the confession

the product of an essentially free and uncon-

strained 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 (1973); Culombe, supra at 602.

“The state of mind which renders a statement involuntary, and

hence inadmissible, is that induced by mistreatment, threats,

promises, physical or mental abuse which deprives an otherwise

rational mind of the exercise of its free will and powers of decision

and discernment.” State v. Rosa, 170 Conn. 417, 424 (1976).

This court, as the ultimate judge of the credibility of witnesses

and the weight to be accorded to their testimony, has found the

defendant’s confession to be the voluntary expression of his free

will. See Hawthorne, supra at 371; State v. Penland, 174 Conn.

153, 157-158 (1978). No credible evidence has been introduced

to the court showing that there was any mistreatment, threats,

promises or physical or mental abuse which would induce the de-

fendant to execute an involuntary confession. The defendant was

not deprived of sleep, food, liquids, telephone calls or cigarettes.

One claim raised by the defendant which must be noted is that

his confession was involuntary as it was induced by a promise to

speak to the prosecutor about a reduction in the bond.

At the hearing on this motion Lieutenant Solomita testified that

during the interrogation of the defendant on the morning of

February 4, 1980, the defendant asked him what he could do for

him. The lieutenant replied that he could do nothing, but that he

would talk to the prosecutor about lowering the bond. This is

hardly a promise of leniency which would induce the defendant

to make an involuntary confession.

In Bram v. United States, 168 U.S. 532, 542-43, 18 S. Cr. 183

(1897) the Supreme Court cited an English textbook stating that

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a confession is not voluntary if “obtained by any direct or implied

promises, however slight.” Many federal appellate decisions have

expressed the view that this rule is not to be applied with, what

one opinion called, “wooden literalness. United States v. Ferrara,

377 F.2d. 16, 17 (2d Cir. 1967) cert. den. 389 U.S. 908; United

States v. Frazier, 434 F.2d 994 (Sth. Cir. 1970); United States

v. Glasgow, 451 F.2d 557, 558 (9th. Cir. 1971). In Ferrara,

supra, and United States v. Reed, 572 F.2d 412 (2d Cir. 1978)

the defendants confessed after being promised reduced bail. Both

confessions were found to be voluntary, despite the promise for

reduced bail.

Typical of the principle developed in the state decisions is a

statement in Commonwealth v. Meehan, 387 N.E. 2d. 527, 534

(Mass. 1979).

An officer may suggest broadly that it would be

‘better’ for a suspect to tell the truth, may indicate

that the person’s cooperation would be brought to

the attention of the public officials or others in-

volved, or may state in general terms that coopera-

tion has been considered favorably by the courts

in the past. What is prohibited, if a confession is

to stand, is an assurance, express or implied, that it

will aid the defense or result in a lesser sentence.

See People v. Tanser, 75 Ill. App. 3d 482, 394 NE. 2d 616

(1979); State v. Biron, 266 Minn. 272, 123 N.W. 2d 392

(1963); State v. Mullin, 249 Iowa 10, 85 N. W. 2d 598 (1957);

Womack v. Alabama, 281 Ala. 499, 205 So. 2d 579 (1967).

None of the cases urged on the court for the proposition’ that

a confession is involuntary, if obtained after a defendant is told

by an officer that he would speak to the prosecutor about a possible

reduction in bond, support the conclusion that the confession in

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this case is involuntary.! All of these cases involve forms of co-

ercion greater than the claimed inducement here.

Therefore, this court concludes that the statement by Lieutenant

Solomita, that although he could do nohting for the defendant, he

would talk to the prosecutor about lowering the bond, did not

render the defendant's statement involuntary. 2.

In addition, under the totality of the circumstances of this con-

fession, the court concludes that the defendant's will was not over-

borne and that his statements were voluntary. See Stankowski,

supra at 10; Derrico, supra at 11-12.

II.

FOURTH AMENDMENT

The defendant was arrested on February 2, 1980 after he turned

himself in to the Waterbury Police Headquarters. His confession

was given on February 4, 1980. The defendant claims that the

confession was the tainted product of his illegal arrest, in violation

or the fourth and fourteenth amendments.

Even if this court found the defendant's arrest to be illegal, this

would not automatically render his confession inadmissible.

Walters v. Warden, 155 Conn. 316, 323 (1967); Traub, supra

at 173-174. A causal connection must also be found between an

illegal arrest and a subsequent confession, which would render the

1 Hillard v. State, 406 A. 2d 415 (Md. App. 1979); State v. Christian,

604 S.W. 2d 758 (Mo. App. 1980); People v. Bay, 430 N.YS. 2d 601

(N.Y. App. 1980); Staet v. McGrew, 38 Or. App. 493, 590 P. 2d 755

(1979).

2 The defendant's claim, that a delay in his arraignment violated 1978

Practice Book §§ 635 and 637, is easily disposed of. The sections quoted

are advisory only, and do not require arraignment at a certain time of the

mext court day but only on the next court date. The defendant was

arraigned at 11:45 A.M. on the next court date, not at 10:00 A.M. when

court opened, as he had chosen to give a statement at 9:45 A.M. and his

arraignment was delayed until the statement’s completion. See Conn. Gen.

Stat. $§ 54-1c, 54-lg, (requiring prompt presentment.) State v. Cobbs,

164 Conn. 402, 416 (1973) (1:45 presentment. ).

13A

confession the tainted product of the illegal arrest. State v. Derrico,

41 Conn. L.J. #50, 7,9 (6-10-80); Dunaway v. New York, 442

US. 200 ,217, 99 C. Ct. 2248 (1979); Vong Sun v. United

States, 371 U.S. 471, 487-488, 83 S. Ct. 407 (1963).

However, the court does not need to decide whether the defen-

dant’s confession was the tainted product of an illegal arrest, as the

defendant was validly under arrest at the time he confessed. The

defendant had voluntarily turned himself in to the Waterbury

Detective Division, knowing that a warrant had been issued for his

arrest. An application had been filed for the warrant on February

1, 1980, and on that date a valid warrant was issued for the de-

fendant's arrest by Judge William Sullivan. The application con-

tained sufficient facts to establish probable cause for the arrest. See

Conn. General Statutes § 54-2a(a); State v. Hoffler, 174 Conn.

452, 460 (1978); State v. Taylor, 28 Conn. Sup. 19 (1968).

As the defendant's arrest was pursuant to a valid warrant sup-

ported by probable cause, and no evidence has been introduced

showing that the arrest was effectuated in an unlawful manner, his

subsequent confession could not be the tainted product of an

illegal arrest.

III.

SIXTH AMENDMENT

The defendant confessed on Monday, February 4, 1980. At that

time the defendant had not been indicted or arraigned.5 He was

being held pursuant to an arrest warrant dated February 1, 1980.

3 The position taken by the defendant, that because the information

against him was signed on February 1, 1980, that his right to counsel had

attached on that date, is unpersuasive. In Connecticut an information

serves the function of justifying the issuance of an arrest warrant; it does

not become the basis of the charges upon which the accused is to be

arraigned and tried. Walters v. Platt, 22 Conn. Sup. 1, 7 (1956). Also, the

signing of an information is not the act which renders the document

operative, but rather its presentment to the court, and its filing with the

clerk. See 1978 Practice Book & 617, 620; former Conn. General

Statutes § 54-44 (repealed by 1967 P.A. 656 § 60).

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The defendant contends that the procurement of his confession at

the time violated his sixth and fourteenth amendments right to the

assistance of counsel.

A defendant's sixth and fourteenth amendments right to counsel

attaches only at the time that adversary judicial proceedings are

initiated against him. Powell v. Alabama, 287 U.S. 45, 53 S. Ct.

55 (1932); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926

(1967). In Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S. Ct.

1877 (1972) the court stated:

The initiation of judicial criminal proceedings is

far from a mere formalism. It is the starting point

of our whole system of adversary criminal justice.

For it is only then that the government has com-

mitted itself to prosecute, and only then that the

adverse positions of government and defendant

have solidified. It is then that a defendant finds

himself faced with the prosecutorial forces of or-

ganized society, and immersed in the intricacies of

substantive and procedural criminal law. It is this

point therefore, that marks the commencement of

the “criminal prosecutions” to which alone the ex-

plicit guarantees of the Sixth Amendment are ap-

plicable. See State v. Middleton, 170 Conn. 601,

609-610 (1976).

The court in Kirby, supra, did not state the exact point at which

“adversary judicial criminal proceedings” begin, although it did

allude that they do begin upon “formal charge, preliminary hear-

ing, indictment, information, or arraignment”. Kirby, supra at

689.

It is beyond dispute that the sixth amendment right to counsel

attaches after indictment or after the preliminary hearing. Massiah

v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964); Hamilton

v. Alabama, 368 U.S. 52, 82 S. Ct. 157 (1961); see also United

States v. Mohabir, 624 F. 2d 1140 (2d Cir. 1980); United States

154

v. Satterfield, 558 F. 2d 655 (2d Cir. 1977). However, it is not

beyond dispute that a defendant’s right to counsel has attached

after arrest but before indictment or arraignment. See United States

v. Duvall, 537 F. 2d 15, 20-22 (2d Cir. 1976) cert. den. 96 S. Ct.

3173, cited in Edwards v. Arizona, —US.—, 49 L.W. 4496, 4497

n. 7 (5-19-81) (the filing of a complaint and the issuance of an

arrest warrant does not trigger the right to counsel under the

Sixth Amendment, that right accruing only upon furher proceed-

ings.

Early Connecticut decisions could be authority for the position

that in this state the right to counsel attaches after arrest, even be-

fore indictment or arraignment. See State v. Klimczak, 159 Conn.

609, 610 (1970); State v. Darwin, 161 Conn. 413, 428 (1971);

State v. Darwin, 29 Conn. Sup. 423, 430-31 (1972); State v.

Beck, 6 Conn. Cir. 130, 136 (1969). However, the most recent

decision, State v. Packard, 42 Conn. L.J. #48, 5 (5-26-81)

stated that:

Counsel is required at all lineups and showups held

after the commencement of criminal proceedings

and is not required at the pre-arraignment state,

including the period from the initial detention to

the formal arrest. 42 Conn. L.J. #48 at 7-8.

See also State v. Towsend, 167 Conn. 539, 556, cert. den. 423

USS. 846, 96 S. Ct. 84 (1975); State v. Middleton, 170 Conn. 601,

609-610 (1976); State v. Carr, 172 Conn. 458, 472

(1977).

The court stated in Packard, supra, p. 8:

“We adopted the language from Kirby in State v.

Middleton, 170 Conn. 601, 609-610, 368 A. 2d

66 (1976): ‘The initiation of judicial criminal

proceedings is far from a mere formalism. It is the

starting point of our whole system of adversary

criminal justice. For it is only then that the govern-

ment has committed itself to prosecute, and only

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then that the adverse positions of government and

defendant have solidified. It is then that a defen-

dant finds himself faced with the prosecutorial

forces of organized society, and immersed in the in-

tricacies of substantive and procedural criminal

law. It is this point, therefore, that marks the com-

mencement of the “criminal prosecutions” to which

alone the explicit guarantees of the Sixth Amend-

ment are applicable. See Powell v. Alabama, 287

US. 45, 66-71, 53 S. Ct. 55, 77 L. Ed. 158;

Massiah v. United States, 377 U.S. 201, 84 S. Ct.

1199, 12 L. Ed. 2d 246; Spano v. New York, 360

US. 315, 324, 79 S. Ct. 1202, 3 L. Ed. 2d 1265

(Douglas, J., concurring) . . . . Kirby v. Illinois,

406 US. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d

411.’ The point when the right to counsel attaches

is at or after the time that the adversary judicial

proceedings have been initiated against the defen-

dant that is, as soon as criminal charges are for-

mally made against the accused, thereby subjecting

him to a criminal prosecution. State v. Towsend,

167 Conn. 539, 556, 356 A. 2d 125, cert. denied,

423 US. 846, 96 S. Cr. 84, 46 L. Ed. 2d 67

(1975).”

The court holds that the defendant’s sixth amendment right to

assistance of counsel was not violated since it had not attached

prior to the initiation of adversary judicial proceedings.

IV.

FIFTH AMENDMENT AND CONCLUSION

Finally, the defendant has contended that the manner of ob-

taining his confession violated his fifth and fourteenth amendments

right to counsel.

In Miranda v. Arizona, 384 U.S. 436, 86 S. Cr. 1602 (1966)

the United States Supreme Court outlined the warnings necessary

to safeguard an accused's constitutional rights under the fifth

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amendment. The court stated that prior to any question,4 the

accused must be warned that:

[H]e has the right to remain silent, that anything

he says can be used against him in a court of law,

that he has the right to the presence of an attorney,

and that if he cannot afford an attorney one will

be appointed for him prior to any questioning if

he so desires. Miranda, supra, 384, U.S. at 479.

The court finds that the defendant was more-than-adequately

warned of his rights, required under Miranda, supra. He was

advised of his Miranda rights on February 2, 1980 by Detective

Joseph Morgan after the defendant voluntarily turned himself in

to the Waterbury Police Headquarters. Before being interrogated

on February 2, 1980, the defendant was again advised of his

Miranda rights and was shown a white Miranda card which he

read. C February 4, 1980 the defendant was again notified of his

Miranda rights by Lieutenant Solomita before making his state-

ment. He was given his Miranda rights for the fifth time as printed

on the voluntary statement form which the defendant read and

initialed in four places.

Once warnings have been given the subsequent

procedure is clear. If the individual indicates in any

manner, at any time prior to or during questioning,

that he wishes to remain silent, the interrogation

must cease .. . . If the individual states that he

wants an attorney, the interrogation must cease

until an attorney is present. At that time, the in-

dividual must have an opportunity to confer with

4 The court finds it beyond dispute that the defendant was in custody

at the time the confession was obtained. See State v. Januszewski, 42 Conn.

LJ. #8, 44 (8-19-80); State v. Singleton, 174 Conn. 112, 115 (1977):

Oregon v. Mathiason, 429 US. 492, 495, 97 S. Ct. 711 (1977). It is also

quite clear that he was subject to interrogation. Januszewski, supra;

Rhode Island v. Innis, 446 US. 291 (1980); State v. Ferrara, 176 Conn.

508, 519 (1975).

18A

the attorney and to have him present during any

subsequent questioning. Miranda, supra, 384 U.S.

at 474.

See also Michigan v. Mosley, 423 U.S. 96, 104 n. 10 (1975);

Rhode Island v. Innis, 446 U.S. 291, 298 (1980).

The transcript of the February 2, 1980 interrogation contains

the following conversation:

PO:

6% 88 8

7

Who do you want to call? Who's your lawyer? Do you

have anybody in mind that you want to call?

I want to call my mother or call my father.

Your father’s gone. He's gone. What kind of (inaud.)

What do you want to call him for?

So he can get me a lawyer.

You tell us who the lawyer, we can get you a lawyer if

that’s what you want.

I don’t want no public defender.

No, I said if you tell us who you want we'll call him for

you (Pause) I'll get you a public defender but first let me

advise you of your rights.

OK

The transcript further shows that the defendant was later asked

again who his lawyer was.

The court interprets the defendant's statement, that he wanted

to call his father so that he could get the defendant a lawyer, as a

request for an attorney.

If the interrogation continues without the presence

of an attorney and a statement is taken a heavy

burden rests on the government to demonstrate

that the defendant knowingly and intelligently

waived his privilege against self-incrimination and

his right to retained or appointed counsel. Escobedo

v. Illinois, 378 U.S. 478, 490 n. 14, 84 S. Ct. 1758

(1964); State v. Wilson, 42 Conn. L.J. #37, 1,

3 (3-10-81).

19A

As a statement was obtained on February 4, 1980, following

the defendant’s request for an attorney, a heavy burden rested on

the state to show that the defendant waived his fifth and four-

teenth amendments right to retained or appointed counsel.

This waiver must not only be voluntary but must constitute a

knowing and intelligent relinquishment or abandonment of a

known right or privilege, a matter which depends upon the par-

ticular facts and circumstances surrounding each case, including

the background experience and conduct of the accused. Edwards

v.Arizona, —US.—, 49 L.W. 4496, 4497 (5-19-81); Wilson,

supra at 3; Johnson v. Uerbst, 304 US. 458, 464 (1938). The

waiver need not be by an express statement but may be inferred

from the actions and words of the person interrogated. North

Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755 (1979);

Wilson, supra at 3. The court must presume that a defendant did

not waive his rights; the prosecution’s burden is great; but in at

least some cases waiver can be clearly inferred from the actions

and words of the person interrogated. Butler, supra at 373;

Wilson, supra at 3. The state must demonstrate: (1) that the

defendant understood his rights, and (2) that the defendant's

course of conduct indicated that he did, in fact, waive those rights.

Id.

The court finds that the defendant did understand his rights.5

He was advised on five occasions of his rights as required under

Miranda, supra. On more than one occasion the defendant ex-

pressly stated that he understood his rights. The defendant was

33 years old and was familiar with the workings of the criminal

justice system. He had recently served six years in a New York

prison for armed robbery. No evidence was presented of the de-

fendant's physical or mental condition, or educational background,

which would have aided the court in making a determination of

the defendant’s mental faculties. Nevertheless, due to the express

5 The court also finds that the waiver was voluntary. Edwards, supra;

Wilson, supra; See Part 1 (above).

20A

statements by the defendant contained in the transcript of the

February 2, 1980 interrogation, and his course of conduct there-

after, the court finds that the defendant did understand his rights. 6

As there is no express statement by the defendant that he wanted

to waive his right to counsel, the court has examined the defen-

dant’s course of conduct, his actions and words, to see if a waiver

should be inferred from the course of conduct.? Butler, supra at

373; Wilson, supra at 3.

Sufficient evidence has been presented to the court of the de-

fendant’s course of conduct from which the court could infer

waiver, if this case were to be strictly decided under the principles

of Connecticut constitutional law. This is not a case where no

evidence was presented to the court from which the court could

infer waiver. See State v. Wilson, 42 Conn. L.J. #37, 1 (3-10-

81); State v. Mascone, 171 Conn. 500, 506, 508 (1976).

The defendant's conduct in this case is very similar to that of

the defendant in State v. Cobbs, 164 Conn. 402 (1973). In

Cobbs, supra, after the defendant indicated that he wanted to call

an attorney, he was not further interrogated, and was given free

use of a telephone. The defendant called his grandmother who

went to see him at the police station. After talking with his grand-

mother, the defendant made a statement to the police.

In holding the confession admissible, the Connecticut Supreme

Court stated that:

(A)n accused who requests counsel may thereafter

voluntarily waive his right to counsel provided he

6 More evidence of the defendant's understanding of his rights was

presented to the court than the simple “Yes I do (understand) in Wilson,

supra.

7 The defendant did sign a voluntary statement form and did place his

initials in a space indicating that he did not wish the presence of an attor-

ney. However, this waiver occurred at 10:15 A.M. on February 4, 1980,

after his fifth amendment rights were violated when the police initiated

conversation with the defendant after he had requested an attorney.

21A

has had in the interim a full opportunity to obtain

counsel or to have an attorney appointed for him.

Id. at 420.

See Cobbs v. Robinson, 528 F. 2d 1331, 1342 (2d Cir. 1975)

cert. den. 96 S. Cr. 1419.

In this case the defendant requested an attorney and was there-

after given free use of a telephone. Instead of calling an attorney,

he called his girl friend who came to the police station. The de-

fendant had stated to Sergeant Dest that he did not want to make

a statement then until he talked to his girl friend. After speaking

with his girl friend he again declined to make a statement. How-

ever, the next day the defendant did make a statement to Lieutenan:

Anthony Solomita and Sergeant Charles Messina who did not know

of the defendant's prior request for counsel.

As the defendant did give a statement after having full oppor-

tunity to obtain counsel, and after having consulted with his girl-

friend, his court would hold that under Cobds, supra, the defendant

had waived his right to counsel.8 However, the court finds itself

bound by the requirements of the United States Constitution as

interpreted by the United States Supreme Court.

In the recent case of Edwards v. Arizona, 49 L.W. 4496 (5-19-

81) the United States Supreme Court held that

(A)n accused . . . having expressed his desire to

deal with the police only through counsel, is not

,8 Compare Cobbs with State v. Moscone, 171 Conn. 500 (1976) at

the opposite end of the spectrum. A 17 year old male in custody stated

that he would not say anything until he saw his attorney. No action was

taken on this request. Two or three hours later a police officer, after once

again advising him of his Miranda rights, on questioning, elicited an in-

criminating statement. The Supreme Court of Connecticut reversed the

trial court, holding that it had not been shown that the defendant's request

to consult with an attorney had been scrupulously honored or that he had

knowingly and intelligently waived his right to counsel. The court at p.

506 pointed out that in Moscone, unlike Cobbs, there was no evidence

that it was the defendant who indicated a willingness to answer questions.

22A

subject to further interrogation by the authorities

until counsel has been made available to him,

unless the accused himself initiates further com-

munication, exchanges or conversations with the

police. (Emphasis added). Id. at 4498.

Edwards, supra, is distinguishable on its facts.“ However, the

court feels bound by the apparent per se rule by the six-member-

majority, that after a request for counsel is made, no interrogation

can occur unless the accused initiates the further conversation. Id.

at 4498, (Powell, J. and Rhenquist, J. concurring).

In this case, although the defendant did request to see Sergeant

Dest on Sunday, February 3, 1980, he made no request to see

either Lieutenant Solomita or Sergeant Messina on February 4,

1980, the date on which the defendant confessed. In fact, the

evidence indicated that the officers initiated the conversation with

the defendant on that date.10

Therefore under the holding in Edwards v. Arizona, supra, II

the court holds that the defendant did not validly waive his right

to counsel under the fifth and fourteenth amendments to the United

9 In that case, when the defendant stated that he did not want to talk

to anyone, he was told that “he had to talk”. Id. at 4496. No such com-

pulsion is present here. In addition, the defendant in Edwards, supra, was

not given free access to a phone, as the defendant was in this case. Id.

at 4496, 4498.

10 In Cobbs, supra, the court noted that the defendant had initiated

the subsequent conversation with the police, but this factor played little

part in the court's decision. 164 Conn. 419.

11 The Edwards court cut off further interrogation “until counsel has

been made available to him.” A viable argument could be made that

counsel was made available to Smith when he was allowed to make a phone

call, when he conferred with Ms. Baptiste, and when Detective Morgan

in the taped interview offered help in getting a lawyer. But available

means more than just a phone call. Availability must be determined under

the totality of the circumstances. In this case where the defendant was in-

carcerated over a weekend and his companion went to the attorney's office

at 9:00 a.m. on Monday and was waiting with defendant's parents and the

retained attorney from shortly after 10:00 a.m., the normal arraignment

time at the arraignment court, while defendant was under interrogation

leading to a confession, a realistic and fair view must conclude that counsel!

had not been made “available” to him when he confessed.

23A

States Constitution. 12 As the statements given on February 4,

1980 violated the defendant's Miranda right to counsel under the

fifth amendment, this court holds that it must be suppressed and

that it cannot be used as evidence against the defendant.

S/T. Clark Hull rm

County of New Haven

ss. Judicial District of Waterbury

State of Connecticut

I hereby certify that the foregoing is a true and accurate copy

of the original Memorandum of Decision dated July 27, 1981,

as on file and of record in State of Connecticut v. Lester Smith

No. Cr 4-77369.

In witness whereof, I have

hereunto set my hand and the seal

of said Court on December 10, 1981

S/T. Clark Hull

T. Clark Hull

Judge of the Superior Court

12 The court finds that Edwards, supra, decided on May 18, 1981, is

applicable to this case although the defendant confessed on February 4,

1980. The relevant occurrence did take place before the decision in

Edwards, supra. See Stovall v. Denno, 388 US. 296, 87 S. Ct. 1967

(1967); Williams v. United States, 401 US. 646, 91 S. Ct. 1148 (1971);

State v. Brown, 160 Conn. 346 (1971); State v.Pueschel, 30 Conn. Sup.

556 (1973). In addition, Edwards, supra, would not be retroactive when

applying the traditional formula. See Stovall, supra; Brown v. Louisiana,

447 US. 323, 100 S. Ct. 2214 (1980).

However, even if not retroactive, Edwards, supra, does apply to this

case as it has not yet proceeded to trial. See Johnson v.New Jersey, 384

US. 719, 86 S. Ct. 1772 (1966); State v. Benitez, 157 Conn. 384 (1969);

State v. Magoon, 156 Conn. 328 (1968). In fact, Edwards, supra, was

decided on the same date that the state submitted its brief on this issue,

so the court has had the full benefit of the opinion in making the decision.

24A

No. 10980 : SUPREME COURT

STATE OF CONNECTICUT : STATEOF

VS. CONNECTICUT

LESTER SMITH : October 15, 1981

ORDER

THE MOTION OF THE DEFENDANT TO DISMISS THE

APPEAL OF THE PLAINTIFF

HAVING BEEN HEARD BY HE COURT, IT IS HEREBY

ORDERED BY THE SUPREME COURT, THAT SAID

MOTION BE AND THE SAME IS HEREBY GRANTED.

STATE OF CONNECTICUT Hartford

Hartford County, } —

I, Michele T. Angers, Assistant Clerk-Appellate, Hereby Certify

the foregoing to be true copy of Motion to Dismiss and Order

thereon in #10980 State of Connecticut v. Lester Smith.

In Testimony Whereof, I have hereunto set my hand and seal

of Supreme Court at Hartford, in said County, this 8th day of

December, 1981.

S/ Michele T. Angers

Assistant Clerk-Appellate

25A