Opposition — Connecticut v. Ostroski

* 8

RE CEive> |

NO. 81-2285 JUL 16 1982

SUPREME COURT OF THE UNITED STA’ €Sorrice THE cutee

OCTOBER TERM, 1981 COURT, U.S. |

STATE OF CONNECTICUT,

Petitioner,

.

RICHARD OSTROSKI,

Respondent.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF CONNECTICUT

RESPONDENT'S BRIEF IN OPPOSITION

JERROLD H. BARNETT

JON C. BLUE

JOETTE KATZ

Chief Public defender s Office

121 Elm Street

New Haven, Connecticut 06510

(203) 789-7477

Counsel for Respondent

Whether Respondent was seized in violation of the Fourth

Amendment when he was brought to and interrogated at the

state police barracks on April 16, 19777

If Respondent was seized prior to his formal arrest following

his confession on April 16, 1977, may this Court consider

whether that seizure occurred at a point in time at which the

police had probable cause to believe he had committed murder

where Petitioner expressly conceded in the courts below that

it did not have such probable cause until Respondent had

actually confessed?

Whether the admission of Respondent's confession and certain

physical evidence obtained as a result of that confession was

harmless beyond a reasonable doubt where there has been no

showing that Petitioner's illegal action did not induce Ne-

spondent ; trial court testimony?

Whether a good-faith exception to the exclusionary rule shouldl

be adopted and applied in this case where this claim was not

raised, preserved, and passed upon in the courts below and a

lack of good faith is apparent from the record?

TABLE OF CONTENTS

QUESTIONS PRESENTED * * * * * * . * * * * * * * *

STATEMENT CONCERNING JURISDICTION. . . 1. ww wee

STATEMENT OF THE CASE

.

REASONS

I.

IV.

PRELIMINARY DISCUSSION. . 2. 2. 2 ew uw wee

EVIDENCE, ARGUMENTS, FINDINGS, AND

RULINGS AT THE aKa

THE FIRST APPEAL. 2. 2 ww we we eevee

TWE REMAND Coif. wt tte ttt ws

THE SECOND APPEAL . ww we we we we ee ves

FOR DENYING THE PETITION

THE SUPREME COURT OF CONNECTICUT CORRECTLY

CONCLUDED THAT RESPONDENT HAD BEEN SEIZED

AND HELD IN CUSTODY IN VIOLATION OF THE

FOURTH AMENDMENT . 2. 2. we we we we ewes

PETITIONER'S CLAIM THAT RESPONDENT WAS

SEIZED UPON PROBABLE CAUSE WAS EXPRESSLY

ABANDONED IN THE STATE COURTS AND HAS

— PRESERVED FOR REVIEW BY THIS

U * * * * * * * * * * * * * * * * * *

THE ERRONEOUS ADMISSION OF RESPONDENT'S

CONFESSION WAS NOT HARMLESS BEYOND A

REASONABLE DOUBT . 2. «1 we we eee eves

A GOOD FAITH EXCEPTION TO THE EXCLUSIONARY

75 > + NOT BE ADOPTED AND APPLIED TO

* * * * * * * * * . * * * * * * *

CONCLUSION * * * * * * * * * * * * * * * * * . * *

PAGE

14

14

15

20

22

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TABLE OF AUTHORITIES

CASES

Brinegar v. United States, 338 U.S. 160 (1949) .

Brown v. I}linois, 442 U.S. 590 (1975) .....

Cardinale v. Louisiana, 394 U.S. 437 (1969) ..

Carroll v. United States, 267 U.S. 132 (1925) .

Chapman X. California, 386 U.S. 18 (1967) ...

Davis v. Mississippi, 394 U.S. 721 (1969) ...

Dunaway v. New York, 442 U.S. 200 (1979) ....

Harrington v. California, 395 U.S. 250 (1969)

Harrison v. United States, 392 U.S. 214 (1968) .

Lego v. Twomey, 404 U.S. 477 (1%)

Michigan v. Mosely, 423 U.S. 96 (1975) .....-.

Milton v. Wainwright, 407 U.S. 731 (1972) ...

Mirsnda v. Arizona, 384 U.S. 436 (1966) .....

Oregon v. Mathiason, 429 U.S. 492 (1977) ....

Reid v. Georgia, 448 U.S. 438 (1980) ..... „

Schneble v. Florida, 405 U.S. 427 (1972) ....

Schneckcloth v. Bustamonte, 412 U.S. 218 (1973)

State v. Staples, 175 Conn. 398, 399 A.2d 1269

Taylor u. 23585 50 U.S.L.W. 4783 (U.S.

une 23, 2) (Wo. 61-518) 0

Terry v. Ohio, 392 U.S. 1 (1966)

nited States v. Anderson, 663 F.2d 934 (9th

Ctr. 187 een eee e ed ee 08

nited States v. Brignoni-Ponce, 422 U.S. 873

Uni » 630 F.2d 613 (8th Cir.

United States v. Mendenhall, 446 U.S. 544 (1980)

Webb v. Webb, 451 U.S. 493 (1981) . 2. ww ee

CONSTITUTIONAL PROVISION

U.S. Const. amend. IV

177

11, 12

. « 19, 20, 25

„ WS

15, 19

. 18

- 16, 18, 19, 21

- 22, 24

- 13,15, 18, 19, 20

. 24 7

. 22, 23

11

11

24

11, 12, 14, 16,17

- 16, 17, 19, 20

. 16

. 24

16

ssim

iv

STATUTES

—- . ere 2, 22

es ee) 2

. eer te. 1, 2

OTHER AUTHORITIES

, i eave @ ae }

S.Ct. Rule 27. ] 21

2 C

NO. 81-2285

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

STATE OF rr

v.

RICHARD OSTROSKI,

Respondent.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF CONNECTICUT

RESPONDENT'S BRIEF IN OPPOSITION

STATEMENT CONCERNING JURISDICTION

For »* reasons discussed at length infra, this Court lacks

jurisdiction under 28 U.S.C. §1257(3) to consider questions (2)

and (4) presented by the Petition since those questions were never

raised, preserved, or passed upon in the courts below.

moreover, nospecial andimportant reasons for reviewing any of the

questions presented. See 8. ct. Rule 17.1.

There are,

STATEMENT OF THE CASE

I. PRELIMINARY DISCUSSION

On October 19, 1978, Respondent was convicted of the crime

of murder in violation of Conn. Gen. Stat. §$3a-S4a by a three

judge court. On November 27, 1978, he was sentenced to a term

of imprisonment of not less than twenty-five years nor more than

life.

Ultimately, after two appeals, Respondent’s conviction was

set aside,and a new trial was ordered. The reversal was predi-

cated upon the determination by the Supreme Court of Connecticut

that Respondent had been seized and held in custody without

| probable cause. The Court held that the admission at Respondent’

trial of his confession and the physical evidence obtained as a

| result of his custodial interrogation violated the Fourth Amend-

ment's protection against unreasonable seizures.

i. EVIDENCE, ARGUMENTS, FINDINGS,AND RULINGS AT THE TRIAL

During the night of Apri! 11-12, 1977, Kim Steacy was stabbed

*

} to death in her apartment on Main Street in the Village of Collins

} ville, located in the Town of fanton, Connecticut. The homicide

| was discovered by Donald Miller, with whom Ms. Steacy was living,

when he returned to the apartment in the early morning on April 12

The Canton Police Department requested assistance from the

Connecticut Stated Police in investigating the crime. Captain

McDonnell, commander of the State Police Detective Division

|} assumed charge of the investigation.

Among the items found at the scene were a bloody palm print

lon the kitchen counter and a trail of blood, determined to be of

type.AB, leading from the apartment to an adjacent parking lot

cos. Gen. Stat. §54-82(b) permits a defendant who is **

of a crime punishable by death or imprisonment for life to waive

his constitutional u to a trial by jury and to elect a trial

by a court composed of three judges.

In the course of the investigation, the police interviewed

Mr. and Mrs. Quigley who had visited with the victim on April 8,

1977, the Friday preceding the homicide. While they were present,

a man had come to the doorway and invited them to a party in the

ap rtment across the hall. The Quigleys were shown a photograph

of Respondent, who was known to be friendly with the occupant of

the adjacent apartment, and they identified him as the man who

had extended the invitation.

Following their meeting with the Quigleys, the police went

to Respondent's apartment on Market Street in Collinsville. No

one was at home, and neighbors had complained of the barking of

Respondent's dog.

Captain McDonnell issued an order that Respondent was to be

found. Trooper Blais questioned Respondent's parents and in-laws

and left messages with them for Respondent te call Captain

McDonnell at the Litchfield State Police Barracks. Personnel at

the barracks were informed that Captain McDonnell wanted to talk

with Respondent. From speaking with Respondent's mother-in-law,

Trooper Blais ascertained that Respondent and his wife and child

had visited his brother-in-law in Plattsburg, New York. On

receipt of this information, Captain McDonnell} assigned Trooper

Blais to a toll booth on the Massachusetts Turnpike in order to

watch for Respondent.

On Saturday, April 15, 1977, at 6:05 p.m., Respondent called

the Litchfield Barracks fron a telephone booth in New Milford,

Connecticut, a town close to the New York line and approximately

twenty miles from Litchfield. He had just reentered Connecticut

and had been informed in a telephone conversation with his mother

that Captain McDonnell wished to speak with him,

The call was taken by Trooper McDermott. When Respondent

stated he was unfamiliar with the route to the barracks, McDermott

started to give directions which he described as complicated.

But, when Respondent suggested that he arrive the next day,

McDermott's reply was that he was to come to the barracks that

night. McDermott stated he would send a trooper to meet Respon-

dent and lead him te the barracks. According to McDermott,

Respondent agreed to this procedure.

Sergeant Cibula was the supervisor at the Litchfield Barracks

on the evening of April 16, 1977. Although Cibula was aware that

a homicide had occurred in Collinsville, he did not know any

specific details. Sergeant Cibula testified that when he was

notified of Respondent's call, he was determined that Respondent

was going to the New Milford Police depar tnent. 7 Consequently,

at Sergeant Cibula‘s direction, Trooper McDermott arranged for

Officer McKay of the New Milford Police to go to the site of the

telephone booth and escort Respondent to the New Milford Police

Station. When Officer McKay, who had been subpoenaed, was unable

to testify at Respondent's trial because of reported dental

problems, Petitioner's attorney conceded that Respondent had been

“in the custody of an Officer McKay from New Milford" when he was

escorted to the New Milford Police Stat ton. 3 Petitioner's

attorney referred to McKay as the “transporting authority.*4

Respondent and his wife and child were then taken from the

New Milford Police Station to the Litchfield Barracks in a police

car driven by Sergeant Cibula. Respondent's car was left in

New Milford.® Cibula testified that he did not ask any questions

during the forty minute drive, but that Respondent volunteered

statements that Captain McDonnell wanted to talk to him about a

homicide in Canton® that he suspected the police wished to speak

27. 379.

7. 348.

ir. 390.

57. 489.

Respondent. received this. forma fon int el egh

beweg kfeg with his mother on ae „ tee 48506 ern Fore he

called the kate este Barracks. fT. 179° 4 6-87.

with him about his dog,and that recent carpentry work had caused

the cuts on his hands.

They arrived at the barracks at 8:10 p.m. Sergeant Cibula

introduced Respondent to Captain McDonnell, who was accompanied

by Sergeant Cudowrth of the Canton Police Department. McDonnell,

Cudworth,and Respondent went upstairs to a room on the second

floor. Respondent's wife and child remained on the first floor.

McDonnell's notes showed that he and Cudworth started to question

Respondent at 8:15 p.m. and that McDonnell* did not leave the

room until 12:30 on the following morning. |

The interrogation was tape-recorded in a room on the first

floor, where the interrogation being conducted upstairs could be

overheard. Officers were assigned to that room to take notes of

the conversations and to keep time checks on various points in

the interrogation. Their notes indicated that the interrogation

started at approximately 8:15 p.m. and that the recording machine

was shut off at 12:15 on the following morning.

The entire recording was played and a transcription of it

was read by the trial court when it heard evidence and arguments

on Respondent's motion to suppress “potential testimony or other

evidence that was obtained in violation of the constitution or

laws of the United States or the State of connecticut. 7 The

Supreme Court of Connecticut reviewed the transcription in its

disposition of Respondent's case.® The entire transcription is

appended to this Brief as Exhibit 1, so that this Court may review

the facts accurately rather than rely upon the selectively culled

portions related by Petitioner.

At the outset of the interrogation, Respondent was told that

the police wanted to talk to him about the homicide that had

IPetition at I7A.

1. at le.

occurred in Canton earlier in the week. (T. 446). When the

Miranda rights were read and Respondent signed a waiver of those

rights, he was informed by Captain McDonnell that he was not

under arrest. (T. 447).

During the initial stages of the interrogation, Respondent

was asked questions pertaining to the following topics:

(1) His visits to the building in which the victim

resided and any acquaintance he might have

had with her. (T. 449-60, 473-76).

(2) His departure from the state on the day

after the homicide, his reasons for that

departure, and his destination. (T. 461,

468-71, 477-81).

(3) His recent employment as a carpenter, which

he had given as the cause of the cuts and

blisters on his hands. (T. 462-63).

(4) His knowledge of the homicide and the

sources of his knowledge. (T. 486-87).

In addition to this questioning, Respondent was told that

the police wanted fingerprints and hair samples from all persons

who had been in the building. His fingerprints were on file, and

he was willing to give samples of his hair. He let his interro-

gators examine his body and shoes. He agreed to sign a medical

release for the police to obtain his blood type and stated his

belief that it was AB negative.

Captain McDonnell asked Respondent to consent to a search of

his car. At the time, McDonnell apparently believed the car was

at the barracks.? Respondent was hesitant but agreed to the

search after McDonnell said he could watch them and Cudworth

assured him that they were not looking for narcotics.

As the interrogation continued, McDonnell sent Cudworth down -

stairs for consent-to«search and release forms. In Cudworth's

absence, Respondent said, “I'd like to talk to my wife if I

could.” McDonnell's answer was, “Yeah, okay, wait till he comes

97. 472.

back with the forms." Respondent continued “I'd like to clear a

few things up, find out maybe if she knows...which motels and

stuff we stayed at." McDonnell answered that the information was

unimportant and then said “[bJefore we go if you want to talk to

her, try to clean it up." '0 ai

On Cudworth's return, Respondent again expressed reservation

about a search of his car. McDonnell noted he had written “excep

narcotics or marijuana”on the form,!!

After the forms were signed, the following conversation

occurred:

[Respondent]: I'd really like to get going

as soon as possible, I'm beat.

(Cudworth]: Okay, doing a lot of driving

heavy?

[Respondent]: Oh yeah, driving and --

[Cudworth]: Did you do all the driving or

did the wife do some?

[Respondent]: Well she did some but I did

most of it, I'm, I'm really beat, I'm so

damn tired I, I could fall asleep on my

feet, get to a motel and just go to sleep.

McDonnell]: Why don't you go home, sleep

n your own house?

[Respondent]: I'm tired of driving.

[McDonnell]: You're home in twenty minutes...

twenty-five minutes.

(Respeedent); Oh yeah, but the cars [sic]

n Miller's [sic] [New Milford]

[McDonnell]: Oh I thought they brought the

car up here.

Respondent): Wo, he, be wanted me to just

eave it there I guess.

On learning that the car was in New Milford, McDonnell said

“[Wjell, we'll have to go back there somehow and take a look at

lor. 483-84.

Mr. 468-489.

1er. 469.

—

it, 1 don't want to do it without you being...around, it doesn't

say that here [on the form], but that's how I want do do n. — j *

The interrogation continued with McDonnell stating that

Respondent's leaving on Tuesday, the day after the homicide looke

suspicious. More questions were asked about the departure. Re-

spondent was asked to detail his activities on the preceding

Monday. He remembered what he had done in the daytime but could

recall with certainty only that at night he arrived home very

drunk.“ At this point, Respondent again expressed his desire to

terminate the interrogation:

{Slee I'm pretty tired, you think I

can go, I, I, I'm really, I'd like to

terminate this thing cuz ahh any ques-

tions I answer, I prob--lfable to, start

fuckin everything up and telling you I

was doing one thing, when I was doing

another cuz I'm tired and I don't feel

good. 15

: McDonnell's response to Respondent's second request to leave

was that being drunk was no crime. He asked if Respondent would

mind if they took pictures of his hand, 18 Respondent answered

"I don't care."'? McDonnell said (presumably'to Cudworth) “...ask

the guys downstairs, some color, color slides, anything...so they

can take some photos for us.” '8

Immediately thereafter, Respondent asked once more “[CJan

I at least get on the road pretty soon?" '9 McDonnell answered

“Hey, we're driving so you won't have to worry about driving, okay?

17. 489-90.

147, 490-94, 497-99.

We'll drive you wherever you end up wanting to 90. 20

Respondent, however, persisted in his desire to leave, saying

“I want to go back to my car and then from there I'm gonna go,

I'll go home, I'11 go home, crimidy sakes, cuz I'm so tired.

So what do you think?*?! McDonnell's response was “I think you

killed this girl Ricky.*22

The notes of the officers monitoring the recording contained

an entry that Respondent's request to go home followed immediate!

by Captain McDonnell's accusation occurred at 9:35 p.m, 23

In the continued interrogation, Respondent expressed his

incapability of committing such a heinous act. Captain McDonnell

made several comments. He expected to find blood on the seats or

steering wheel of Respondent's car. The departure on the next

morning looked “pretty suspicious" to a cop. The cut on Respon-

dent's hand appeared to be recent. Blood of the AB type was rare

and had been found throughout the victim's apartment. 24

When Respondent asked for time to think, Sergeant Cudworth

asked if he wished to speak to his wife. Respondent answered

“(Clan I talk to my wife?” Captain McDonnell responded:

Yeah, we'll bring up your wife and you can

talk to your wife. Now we know you, I'm

sure you've confided some of this in your,

in your wife, you probably didn't tel) her

you killed the girt but I'm sure you told

her you had to get out of town and you went

for this trip.28

Respondent's wife was brought upstairs at 9:50 p.m. and conversed

privately with him for eight minutes. 8

When the interrogation resumed, Respondent did not recall the

events of April 11-12, 1977. He stated, “I was tripping my fuckin

2014.

2114.

227. 499-500.

237. 624-25.

ear. 502-04.

287. sos

267. so9

;

—

*

*

brains out. 27

With Respondent's permission, Captain McDonnell! questioned

his wife. Beverly Ostroski stated that Respondent left in the

morning of April-11 and did not return home until 2:00 a.m. on

April 12. He had been drinking and his eyes were dialated like

he was “tripping.” He was wearing the same clothing and shoes

he had on when he left and she did not notice any blood on them

or in the car. He did not tell her about anything. He was just

“spaced” like he usually was when he got really “bombed.” It

was his idea to leave on Tuesday morning and they had no particula

destination. She returned alone on Wednesday and rejoined him in

Vermont on Thursday. 28

After hearing Beverly Ostroski, Captain McDonnell asked

Respondent “(Why did you really go out of state Ricky? Think

now and tell me the truth.*29 Respondent answered “I was scared..

Blood on my hands." 2° |

It was only after this, through what he and psychiatrists?’

who testified later in the trial termed “flashbacks,” Respondent

gave his confession. In a drugged and drunken state he had killed

the victim while under the impression that he was combatting

imaginary assailants. Thereafter he discarded his clothing and

cleaned his cer. 32

Following his confession, Respondent was placed under arrest

for murder by Sergeant Cudworth at 11:24 on April 16, 1977.39

2714.

287. 41-814.

297. 814.

307 818.

3 prior to „ Respondent had filed the notice required by

Conn. Practice Book 3759 of his intention to introduce expert tes-

timony ob pen to a condition 182 upon the issue of whether

he had the mental state required for the offense charged.

der. 515-20, 529-52, 557-60.

337, 561. Subsequently, Respondent was arrested on a bench

warrant issued may 3, 1977, on Sergeant Cudworth's affidavit.

Respondent was in icted by a 1 jury on June 3, 1977. Printed

Record of the Supreme Court o cut 2-7, 8.

Connect

The trial court heard arguments on Respondent's motion to

suppress in conjunction with Petitioner's offer of Respondent's

confession. Respondent argued that the interrogation was custodial

within the meaning of Miranda v. Arizona, 384 U.S. 436 (1966),

and that his confession should be suppressed because Captain

McDonnell and Sergeant Cudworth had refused to honor his requests

to cease their questioning, as required by Michigan v.-Mosely,

423 U.S. 96 (1975). He also claimed that his confession was

involuntary because his will not to incriminate himself had been

overcome. 34

Petitioner contended that Respondent was not in custody

when he was interrogated and, therefore, the requirements of the

Miranda were inapposite. The voluntariness of the confession was

claimed to have been established by a fair preponderance of the

evidence:. See Lego v. Twomey, 404 U.S. 477 (1972); State „.

Staples, 175 Conn. 398, 399 A.24 1269 (1978). 35

The trial court dented the motion to suppress and admitted

the confession. In doing so, it issued a verbal finding. This

finding was not however, the “Finding” submitted to this Court

in Petitioner's Appendix A. That Appendix is, in fact, nothing

more than an evidentiary ruling made during the testimony of

Sergeant Cibula preceding the hearing on the motion to suppress. 36

The trial court's actual finding is reported in the first

opinion of the Supreme Court of Connecticut, at page 6A n. 2 of

Petitioner's Appendix. This finding differs substantially from

the version submitted and labeled by petitioner as “Finding”

The real verbal finding is reproduced below for the benefit of

347 652-63, 680-87.

357. 663-80.

36 the 9 that Petitioner has designated as the trial

court's finding is at T. 382. The hearing on the motion to

Suppress starts at T. 436. The actual finding is at T. 687-88.

12

the Court. *

On April 16, 1978, iste) the Defendant

voluntarily came to the Litchfield Barracks

with his wife and child, that the Defendant

was under apparent custodial interrogation

at the time he was given his Atrande right

warnings. There is a distinction fn the

Mirands warnings from the right to obtain

counsel and the right to remain silent. And

we are dealing with the right to remain

silent in thés matter here, and to terminate

the custodial interrogation. There, is some

question with respect to the statements

made in [the]: transcript as to whether or

not equivocally or unequivocally the Defen-

dant asked that the interrogation cease.

If we find that there is no equivocation,

then that would settle the matter there. If

we find there is some question on this matter,

then we proceed to whether or not there was

a waiver of the rights. And as far as the

Panel is concerned on it, we do find there

was no violation of the Miranda rights in-

volved herein. And in accordance with State

v. Step! (175 Conn. 398, 399 A.

n we make a finding that the con-

fession is voluntarily, knowingly, and intel-

ligently 35%, and may be admitted into

evidence.

Later in the trial, Petitioner was allowed to place in evi-

dence items to which Respondent objected as being the fruits of

an illegal confession. The first item was @ printe of Respon-

dent's palm that was taken after his arrest by Sergeant Cudworth

for the purpose of comparing it with the palm print found on the

kitchen counter in the victim's apartment. 38 When asked by the

court if there was an independent basis for the admissibility of

the palm print (and subsequent items), Petitioner's ettorney said:

I don't think there can be any question,

because one of the arguments posed was the

fact that when I argued against your find-

ing as to custody was this: that there was

no probable cause at that time, and I think

it fs true that probable cause for the ar-

rest was based on the confession, and if

the confession fell, everything fell .39

371. 687-88.

387. 707-710.

397. 711-12.

I am certainly 8 to admit, as I have

stated before, that if the confession falls,

all that resulted from the confession,

whether you call it the potsonous tree doc-

trine or what, falls.

III. THE FIRST APPEAL

While Respondent's first appeal was pending, this Court

decided Dunaway v. New York, 442 U.S. 200 (1979). Relying upon

Dunaway, Respondent claimed that the admission of his confession

had violated his Fourth Amendment rights.4!

:

At oral argument, Petitioner conceded that when Respondent

was brought to the Litchfield Barracks there was no probable cause

to arrest or detain him, 42 In its opinion, the Supreme Court of

Connecticut stated “[blecause the state has conceded that there

was no probable cause to arrest or detain, we need not consider

what would constitute probable cause in this case.*43

Petitioner, however, did contend that Respondent was not in

custody during his interrogation. On this claim, the Supreme

Court of Connecticut opined that the language of the trial court's

finding was ambiguous and possibly en hypothesis assumed in order

to reach the fifth amendment issue of the protection of [Respon-

dent's] right to remain silent.*44 The case was remanded for a

further articulation on the issue of custody with a direction to

consider “the fourth amendment right to be ‘secure in their

persons...against unreasonable searches and seizures.'*45

407 715.

rde Fourth Amendment claim was:allowed by the Supreme

Court of Connecticut pursuant to its "exceptional circumstances”

doctrine. Petition at BA.

Sepetition at BA.

$314. at n. 3.

$414. at 7A.

$514. at 94.

1

14

IV. THE REMAND

On remand, the trial court found that:

“i. [L])n.theepresent case, there is no

indication that the questioning took

place in a context where [Respondent's]

freedom to depart was restricted in any

way. b Respondent) came voluntarily to

the police station barracks, where he

was immediately informed that he was not

under arrest. He was given and repeated

his A rights. In the presence of

his wife, he made his confession. At

most it could be deemed a coercive en-

vironment not converted to a custodial

situation.4

From these findings, the trial court conéluded that Respondent

was not taken into custody until after his post-confession arrest

by Sergeant Cudworth.

. THE SECOND APPEAL

The Supreme Court of Connecticut held that the determination

of the trial court that Respondent was not in custody prior to

his formal arrest was clearly erroneous. On the facts of the

instant case, the Supreme Court of Connecticut concluded that

Respondent was “seized” when he was taken to the Litchfield Bar-

racks and that the trial court erred in admitting the confession

and the physical evidence obtained as a result of the interroga-

tion. 7 The court specifically noted that Petitioner had not

argued that, in this case, there was any intervening act sufficient

to purge the evidence of the taint of the illegal detention. 8

*6petition at 13A.

4714. at 15A, 19A, 22A.

$814. at 194, n. 2

oe 5 9 a 9

, 15

REASONS FOR DENYING THE PETITION

1. THE SUPREME COURT OF CONNECTICUT CORKECTLY. CONCLUDED

THAT RESPONDENT HAD BEEN SEIZED AND WELD IN CUSTODY

IN VIOLATION OF THE FOURTH AMENDMENT

Because of Petitioner's concessions, the Supreme Court of

Connecticut was presented with only the narrow question of

whether Respondent had been seized and held in custody. As dis-

cussed in the Statement Of The Case, supra at 12-13, Petitioner

conceded that it had no probable cause’? to arrest or detain

Respondent until after he had actually confessed. Petitioner

further failed to argue that there was any intervening act sufft-

cent tc purge the confession or other evidence of the taint of

the detention. See p. 13, supra.

There is no dispute concerning the substantive law that

applies to this case. Aside from certain well-recognized ex-

ceptions of brief duration, °° the Fourth Amendment's requirement

that seizures must be supported by probable cause applies equally

to formal arrests and investigatory detentions. Dunaway v. New

York, 442 U.S. 200, 214-15 (1979); See Davis v. Mississippi, 394

U.S. 721, 726-27 (1969). A “seizure” occurs whenever a police

officer accosts an individual and restrains his freedom to walk

away. Terry v. Ohio, 392 U.S. 1, 16 (1968). “[A] person has

been ‘seized’ within the meaning of the Fourth Amendment only if,

49 Probable cause exists where “the facts

and circumstances within their [the

officerst] knowledge and of which they

had reasonable trustworthy information

Care] sufficient in themselves to warrant

aman of reasonable caution in the de-

lief that“ an offense has been or is being

committed,

ry qs » 338 U.S. 160, 175-76 £1949). quoting

» 267 U.S. 132, 162 (1925)

-P » 422 U.S. 873 (1975

(rerteskts fe ited Staten y. Brlanont-Pence, 42 and ask N

questions on reasonable suspicion thet 1388 aliens are being

transported); „ 392 U.S. 1 (19 limited search -

1.6, @ pat-down for weapons allowed on AU. -A e suspicion that

person eing investigated is armed),

in view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to

leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980)

(opiniun announcing the judgment). See Reid v. Georgia, 448 U.S.

438, 442-43°(1980) (Powell, J., concurring).

It is on the application of the substantive law to the facts

of this case that the parties disagree. Whether a seizure has

occurred has been described as “a fact-bound question with a

totality-of-circumstances assessment." United States v. Mendenhal},

Supra, 446 U.S. at 569. (White, J.,dissenting). The same approach

has been applied to the related Fourth Amendment problem of deter-

mining the voluntariness of consents to searches. Schneckcloth v.

Bustamonte, 412 U.S. 218, 227 (1973).

Petitioner contends that a seizure did not occur in the in-

stant case because the delivery of Respondent to the Litchfield

Barracks and the ensuing interrogation resulted from Respondent's

telephone call to the police. Likening this case to Oregon v.

Mathiason, 429 U.S. 492 (1977), Petitioner has argued that Respon-

dent's transportation to the berracks and his presence there

during the interrogation were his own consensual acts.

In Mathtason, supra, this Court held that the particular

circumstances of an interview at a police office did not rise to

the level of custodial interrogation and thus did not require an

advisement of Miranda rights prior to questioning. A comparison

between the factual situations in Mathiason and the instant case,

however, demonstrates that the differences between them far out-

weigh any similarities.

The respondent in Mathiason had telephoned a police officer

in response to a message that the officer wished to discuss some-

thing with him. The time and place of the subsequent meeting

were left to the respondent's choosing. When the respondent ex-

7 f 1

17

—

pressed no preference, the meeting was scheduled for the state

patrol office at 5:00 p.m., one and one-half hours after the call.

This respondent went to the meeting by himself. In a taped con-

versation, the respondent was informed that he was not under

arrest but that the police believed that he had been involved

in a burglary. Id. at 493.

Within five minutes after the interview started, the respon-

dent in Mathiason had admitted taking certain property. There-

after, the respondent was advised of his Miranda rights, and the

officer took his taped confession. At the end of the interview,

the officer told the respondent that he was not arresting him but

was referring the case to the district attorney who would determine

whether charges would be brought. The entire interview in

Mathiason lasted thirty minutes,and the respondent departed at

5:30 p.m. Id. at 493-94.

In contrast, when the Respondent in the instant case, made

his telephone call, he was told to report to the Litchfield

Barracks that night. Most significantly on the question of

seizure, the police, in this case, took direct action to insure

that Respondent would comply with this command. Petitioner has

described the transportation of Respondent from New Milford to

Litchfield in Sergeant Cibula's police car as "a matter only of

mutual convenience.” Petition at 16. The evidence, however, is

plainly otherwise.

Sergeant Cibula, the supervisor at the barracks testified

that when he was informed of Respondent's call, he was determined

that Respondent was going to the New Milford Police Department.

See p. 4. supra. The only possible inference from Cibula's

testimony is that he wanted Respondent in safekeeping, and he was

not going to risk Respondent's leaving before the police arrived.

Cibula's unambiguous intention to detain is relevant to this case

18

because it was conveyed to Respondent by the arrival of Officer

McKay, who escorted him to the New Milford Police station to

await the arrival of the state police. See United States v.

Mendenhall, supra, 446 U.S. at 554, n. 6.

At the trial, Petitioner's attorney described McKay as a

“transporting authority" and Respondent as having been in the

“custody” of Mckay. 5 See p. 4, supra. Obviously, Cibula ~+ who

gave the order and who subsequently drove Respondent to Litchfield

himself -- acted in the same capacity. This series of events

plainly satisfied the objective test for a “seizure” enunciated

in Mendenhall. A reasonable person who had been told to report

to a distant police barracks that night would not have believed

he was free to leave the policeman who had been sent to take him

there. See United States v. Jones, 630 F.2d 613, 616 (8th Cir.

1980). This is, in short, @ case involving an order to “pick up“

Respondent and “bring him in." See Dénaway v. New York, supra,

442 U.S. at 203.52

Petitioner argues that the question of seizure must be

confined to Respondent's encounter with Sergeant Cibula. Petition

at 17-19. But, even if Respondent's dealings with Cibula were

Sl petitioner's attorney described Officer McKay as a “custo-

dian" and a*“transporting authority” in spite of the fact that Re-

spondent drove his car to the New Milford Police Statiéna while

being escorted by McKay. In these circumstances, it made little

difference whether Respondent rode to the Litchfield Barracks in

Cibula’s car -- which he did -- or drove his own car under escort.

The “mutual convenience” referred to in p. 16.0f the Petition was

obviously of no real importance. Respondent was in custody no

matter what the mode of travel.

52 et it toner Suggests that Cibula's action in driving to New

Milford was unauthorized. Petition at 4-5. At the trial, however

Petitioner's attorney, on his direct examination of Cibula, es-

tablished that Cibula was the night shift supervisor at the

Litchfield Barracks on April 16, 1977, and that the desk officer

8 who made the arrangements with the New Milford poiſce

was under Cibula's command. T. 377-78.

19

assumed to be consensual, the further question of the legality of

his subsequent detention and interrogation would remain. See

Dunaway v. New York, supra, 442 U.S. at 212-13; United States v.

Brignoni-Ponce, 422 U.S. 873, 881-82 (1975).

Contrary to Petitioner's assertions, the Supreme Court of

Connecticut did not misinterpret the issue before it. That issue

was the admissibility of Respondent's confession and other evi-

dence that were alleged to have been obtained in violation of the

Fourth Amendment. The Supreme Court of Connecticut concluded

that the trial court erred in admitting the incriminating evidence

because Respondent had been illegally seized and held in custody.

Petition at 19A, 21A-23A. Before reaching its conclusions, the

Supreme Court of Connecticut was constitutionally required to

consider all of the underlying circumstances. See Taylor v.

Alabama, 50 U.S. L.W. 4783 (U.S. June 23, 1982) (No. 81-5162).

Dunaway v. New York, supra, Brown x, I}linois, 422 U.S. 590 (1976)

Indeed, Petitioner appears to appreciate the fallacy of its claim

by attempting to revive the previously conceded issue of lack of

probable cause. Petition at 19.

A “seizure” may be occasioned by a show of police authority

as well as by use of physical force. United Stat „. Mendenhall,

supra, 446 U.S. at 553. The authority exhibited in this case is

demonstrated vividly by comparing the circumstances of Respondent'$

interrogation with the encounter at issue in Oregon v. Mathiason,

supra.

The suspect in Mathfason never requested that his thirty

minute session with the police officer be terminated. In contrast

the Respondent in the instant case, made three requests to leave

between 8:15 p.m., when the interrogation commenced, and 9:35 p.m

Each request was deflected by questions or statements from Captain

McDonnell that would indicate to a reasonable person that the

requests had been rebuffed. See pp. 7-9, supra. The interroga-

tion continued for several hours thereafter. The extent of the

detention is a factor to be considered in determining its law-

fulness. United States v. Anderson, 663 F.2d 934, 941 (9th Cir.

1981). The suspect in Mathiason was free to depart even after

he had confessed. The Respondent in the instant case was never

informed that he was free to go. The comments of the police

during his interrogation made it clear that they intended to con-

tinue his detention. Respondent was even told that he was to

present at a search of his car in which the police said they ex-

pected to find incriminating evidence. See pp. 7-9; supra.

The conclusions of the Supreme Court of Connecticut, in this

case, parallel the decisions of this Court in Taylor v. Alabam:,

supra, Dunaway v. New York, supra, and Brown v. Illinois, supra.

Respondent was taken into custody without probable cause and

interrogated in the hope that something would turn up. Petitioner

has never claimed that the confession and other evidence obtained

was separated from the “seizure” by an intervening event. Under

these circumstances, there is no reason for this Court to review

this issue.

II. PETITIONER'S CLAIM THAT RESPONDENT WAS SEIZED UPON

PROBABLE CAUSE WAS EXPRESSLY ABANDONED IN THE STATE

COURTS AND HAS NOT BEEN PRESERVED FOR REVIEW BY

THIS COURT

As discussed supra, Petitioner conceded in the Supreme Court

of Connecticut that at the time of Respondent's arrival at the

police barracks there was no probable cause to arrest or detain

him. Petition at 8A. In a desperate attempt to escape the

consequences of this concession, Petitioner has now contended in

its Petition that, “if an informal seizure occurred at all in this

case, it occurred at a point in time at which the police had

probable cause to believe the respondent committed the kiliing.*

Id. at 19. The specific contention appears to be that probable

cause developed during the course of Respondent's interrogation

but before Respondent had actually confessed.

This claim was, however, expressly abandoned by Petitioner

in the trial court. During the suppression hearing, Petitioner's

attorney explicitly conceded that “probable cause for the arrest

was based on the confession, and if the confession fell, every-

thing fell.” (T. 712). A few minutes later, this concession was

reiterated. “I am certainly willing to admit, as I stated before,

that if the confession falls, everything falls, all that resulted

from the confession, whether you call it the pofsonous tree

doctrine or what, falls." (T. 715). As @ result of this con-

cession, neither the trial court nor the Supreme Court of

Connecticut have had an opportunity to pass on this claim, which

Petitioner has now raised in this Court for the first time. Con-

sequently, as the Court has repeatedly explained, there is no

federal jurisdiction to consider this question.

It was very early established that the

Court will not decide federal constitutional

issues raised here for the first time on

review of state court decisions. In Crowell

v. Randell, 10 Pet. 368 (1836), Justice Story

reviewed the earlier cases commencing with

Owings v. Norwood's Lesse » 5 Cranch 344

F895. and came to the conclusion that the

Judiciary Act of 1789, c. 20, 25, 1 Stat. 85,

vested this Court with no jurisdiction unless

a federal question was raised and decided in

the state court below. “If both of these do

not appear on the record, the appellate juris-

diction fails.” 10 Pet. 368, 391. The Court

has consistently refused to decide federal

constitutional issues raised here for the

first time on review of state court decisions

both before the Crowell opinion, niller *.

Nicholls, 4 Wheat, 0 75 (1819), and ace.

Cardinale v. Louisiana, 394 U.S. 437, 438 (1969). This jurisdic-

tional rule is required by 28 u.s.c. $1257(3) (1976)59 ana is

53this statutory jurisdictional requirement distinguishes the

certiorari review of state court judgments from that of lower

federal court, judgments. are, 2g . ndenh u

446 u.s. 544, 51-52, nf. 5 * — r * n *

394 U.S. 437, 438 (1969). See Sup. ct. . ° 5

—

supported by powerful policy considerations and reasons of

practicality alike. Webb Led. 451 U.S. 493, 499-501 (1981),

Since the federal question presented has never been raised,

preserved, or passed upon in the State courts below, it should

not and cannot now be considered here.

III. THE ERRONEOUS ADMISSION OF RESPONDENT'S CONFESSION

WAS NOT HARMLESS BEYOND A REASONABLE DOUBT

Faced with the admission of his illegally obtained confessio

over his objection, Respondent took the stand in support of a

defense that he lacked the requisite intent to commit murder or,

in the alternative, that he “acted under the influence of extreme

emotional disturbance." See Conn. Gen. Stat. §53a-54a(a). In the

course of his testimony, he admitted confused memory of stabbing

Kim Steacy. (T. 867-68). Petitioner consequently claims that

"these facts rendered any error in the admission of the challenged

evidence harmless beyond a reasonable doubt.” Petition at 20.

This mistaken contention 18 irreconcilable with the governing

principles established by this court.

The controlling case -- conveniently ignored by petitioner --

is Harrison v. United States, 392 U.S. 219 (1968). Harrison,

like the instant case, involved a criminal defendant who, faced

with the admission of an illegally obtained confession over his

objection,” took the witness stand and testified to his own ver-

sion of the events leading to the victim's death.” Id. at 220.

His conviction was reversed on appeal and, on remand, the prosecu-

tion read to the jury the defendant's testimony at the prior trial

The resulting conviction was reversed by this Court, holding that

“the same principle that prohibits the use of confessions [wrong-

fully] procured also prohibits the use of any testimony impelled

thereby." Id. at 222. The Court's reasoning is squarely applica-

ble to the instant case.

In concluding that the petitioner's

prior testimony could be used against him

without regard to the confessions that had

been introduced in evidence before he tes-

tified, the Court of Appeals relied on the

fact that the 15 had “made a con-

scious tactical decision to seek acquittal

by — the stand after this in-custody

statements had been let in.... But that

observation is beside the point. The ques-

tion is not wether the petitioner made a

knowing decisfon to testify, but why. If

he did so in order to overcome the Tmpact

of confessions illegally obtained and hence

improperly introduced, then his testimony

was tainted by the same illegality that

rendered the confessions themselves inad-

missible.

Id. at 223.

The Court, moreover, squarely placed the burden of proving

that the wrongfully obtained confession did not induce the defen-

dant's trial testimony squarely on the shoulders of the prosecu-

tion.

[H]aving illegally placed his confessions

before the jury, the Government can hardly de-

mand a demonstration by the petitioner that he

would not dae testified as he did if his in-

admissible confessions had not been used. the

springs of conduct are subtle and varied,” ‘Mr.

Justice Cardozo once observed. “One who med-

dies with them must not insist upon too nice

& measure of proof that the ote which he

released was effective to the exclusion of all

others.” Having “released the spring” by using

the petitioner's unlawfully obtained confes-

sfons against him, the Government must show

that its illegal action did not induce his

testimony.

Id. at 224-25 (quoting DeCicco v. Schweizer, 221 N.Y. 431, 438,

117 N.E. 807, 810 (1917).

Petitioner does not even venture to suggest such a showing

in the instant case, and indeed none can be made. Respondent,

like Eddie Harrison, took the stand only after his confession

had been admitted in evidence. Had that confession not been in-

troduced, he might well have not testified at 411. And, even if

he would have testified anyway, he would not necessarily have

admitted being at the scene of the crime and stabbing the victim.

-€ 7 |

24

“On the contrary, the more natural inference is that no testimon-

fal admission so damaging would have been made if the prosecutor

had not already spread [his confession) before the jury." Id.

at 225-26. This is an inference that Petitioner has not dispelled.

Under these circumstances, it can hardly be said that the admis-

sion of Respondent's unlawfully obtained confession was “harmless

beyond @ reasonable doubt." Chapman v. California, 386 U.S. 18,

24 (1967). 54

IV. A GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE SHOULD

NOT BE ADOPTED AND APPLIED TO THIS CASE

Petitioner's final contention is that this Court should

adopt a “good faith" exception to the exclusfonary rule and apply

such an exception in this case. This invitation should be re-

jected for three independent reasons.

(a) Petitioner acknowledges that this claim, like its second

contention discussed supra, was never raised, preserved, or passed

upon in the state courts below. Petition at 26, . 17. As this

Court explained in Cardinale v. Louisiana and Webb v. Webb, supra,

Petitioner's failure to initially present its claim to the state

courts necessarily results in a lack of federal jurisdiction to

review that claim. Petitioner's rationalization that it was not

obligated to raise its claim below because the state courts were

“incompetent to rule definitively upon it" is unsupported by an

authority and cannot be reconciled with the explicit requirements

of 28 U.S.C. 51257 and the powerful policy cons tderat tons enun-

ciated in Cardinale and Webb. Petitioner's argument, if adopted,

54this case 1s obviously distinguishable from Milton y

{ „ 407 U.S. 73) (1952) 8 1 lorida, 465 U.S. 427

1 and ay 11 " ete 969), which

held the evidentfary errors at Tssue in those cases to be harmless

beyond @ reasonable doubt by virtue of concededly admissible in-

culpatory statements made by the defendants. The statements by

the defendants in those cases that vitiated the errors at issue

were statements. Milton ee and 0070 did .

not „erst t. consider the cause-an -e ect relationship between

a confession spredd before the jury and the subsequent testimony

of the accused at tee in and the instant case.

2 28 1

would relieve any litigant of raising any federal claim in any

lower court, since this Court 13 necessarily the ultimate source

of “definitive” rulings.

(b) Petitioner's substantive argument that a "good faith"

exception to the exclusionary rule should be adopted by this Court

has now been succinctly answered by this Court in Taylor u.

Alabama, 50 U.S.L.W. 4783 (U.S. June 23, 1982) (No. 81-5152), in

response to a similar contention by Alabama. “To date, we have

not recognized such an exception, and we decline to do so here.”

Id. at 4785.

(c) The theoretical merits of a “good faith" exception to

the exclusionary rule aside, the instant case is a plainly inap-

propriate one for the enunctation and application of such an ex-

ception. The subjective good faith of the police officers who

interrogated Respondent was not a subject of inquiry in the trial

court, and the existence of such a benevolent mentality is by no

means as “apparent from the record” as Petitioner asserts. The

central fact of this case is that Respondent repeatedly asked to

leave and that his interrogation ceaseand that the police —4—

ly deflected or ignored his requests. This is not a case of

well-~mentioned law enforcement officers unintentionally running

oel of an abstruse rule of law. This is a case of law enforce-

ment officers, bent on obtaining @ confession from a person they

had seized without probable cause, who eogressively and ceaselessly

employed ewery possible stratagem to cajole, entice, and extrect

that confessiom after their prisoner had made it crystal clear

that he wanted the ‘nterrogation te cease. No "good faith" excep-

tion should countemance such official behavior.

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

2

—

JEFROLD H. BARNETT

JON C. BLUE

Chief Public Defender's Office

121 Elm Street

New Haven, Connecticut 06510

(203) 789-7477

Counsel for Respondent

July 15, 1982

— . .

NO. 81-2285

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

STATE OF CONNECTICUT,

Petitioner,

*

RICHARD OSTROSKI,

Lesenden:

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF CONNECTICUT

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Brief in

Opposition, together with a copy of its Appendix, was deposited

fin @ United States post office, with first-class postage prepaid,

addressed to Austin J. McGuigan, Esq., Chief State's Attorney,

P.0. Box 5000, Wallingford, Connecticut 06492, this 15th day of

July, 1982. I further certify that a1! parties required to be

served have been served.

hief Public defender s Office

121 Elm Street

New Haven, Connecticut 06510

203) 789-7477

counsel for Respondent

NO. 81-2285

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

STATE OF CONNECTICUT,

.

RICHARD OSTROSKI,

Respondent.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF CONNECTICUT

STATEMENT CONCERNING MAILING

I, Jerrold H. Barnett, having been first duly sworn, hereby

make affidavit and say as follows:

1. I am an attorney for the Respondent in the ebove-entitied

action and a member of the bar of this Court. 1 am making this

Statement pursuant to S.Ct. Rule 28.2.

2. To my knowledge, copies of the Respondent's Brief tn

Opposition, its Appendix, and a Motion for Leave to Prvceed in

Forma Pauperis were deposited in a United States post office, with

first-class postage prepaid, and properly addressed to the Clerk

of this Court, on July 15, 1982, within the permitted time for

such filing.

—

aie @& dh, cotter the oe lee, fA ee ee

_=—_— an F A

STATE OF CONNECTICUT

ss NEW HAVEN

COUNTY OF NEW HAVEN

Personally appeared before me Jerrold M. Barnett, signer of

the foregoing Statement, who, being first duly sworn, declared it

to be his free act and deed this 15th day of July, 1982.

AE ——

Commissioner of the Superior court ö

5 a a RECZIVED

—. JUL 1 6 1982

— NO. 81-228

— OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED rares gas cb J US.

ee

OCTOBER TERM, 1981

STATE OF CONNECTICUT,

Petitioner,

.

RICHARD OSTROSKI,

Respondent.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF CONNECTICUT

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Pursuant to Rule 46.1 of the Rules of this Court, the

Respondent in the above-entitled case hereby moves, through his

attorney, that he be allowed to proceed in forma pauperis. Be-

cause Respondent is confined in the Connecticut Correctional

Institution, Somers, it has not been possible for his attorney

to obtain a current financial affidavit from him. A copy of the

affidavit that Respondent executed for his appeal in the lower

courts and an affidavit of his attorney are attached hereto. Re-

spondent's motion to proceed in forma pauperis in his lower court

appeal was granted on May 4, 1979.

PETITIONER

RICHARD OSTROSKI

fef Public Defender's Office

121 Elm Street

4 New Haven, Connecticut 06510

sees) 789-7477

His At

torney

0 2

STATE OF CONNECTICUT

APPLICATION FOR WAIVER OF FEES, COSTS AND

EXPENSES AND APPOINTMENT OF COUNSEL ON

APPEAL FROM JUDGMENT OF CONVICTION

STATE OF CONNECTICUT SUPERIOR COURT

4 Hartford 4.8. Judicial Dis

COUNTY OF

October 19, 19789

Richard Ostroski ... ——

; (Name of defe (Date of Judgment)

ndant)

1. Lam indigent and cannot pay the costs and expenses of an appeal, nor can I afford to obtain

an sttoerney.

2 The grounds upon which 1 propose to appeal are:

1. It is against the law.

2. It is against the evidence.

3. The court committed error in admitting 4 confession, and

various other evidence and testimony against the defendant. |

3011 3011

3044 3014

WHEREFORE. f request that the court (1) waive the payment by me of the fees specified in See. EHX of

the Conrecticut Practice Book, taxable costs, and the requirement of See H concerning the furnishing of

ercurtty bet cunts pen appeel. (3) orpee Sone the enpasl be» oppeal without expense to me and (3)

order the necessary expenses of prosecuting the appeal be ' by the state, purruant to Section ol

the Cont rcticut Practice Book.

3014

d .

(Signature of defendant)

Subscribed and aworn to before me this 2 7 it: 7 PO ber. | | 8

pies 2 / ewe. vA =

Title: (Am un, 5 * Ww (Xu *

UNLESS THE COURT EXTENDS THE TIME LIMIT, THIS APPLICATION MUST BF. SIGNED

AND FILED WITHIN TWENTY (20) DAYS FROM THE DATE OF JUDGMENT WITH:

CLERK, SUPERIOR COURT, COUNTY —

Ines ene

AFFIDAVIT

I, Jerrold H. Barnett, saving been first duly sworn,

hereby make affidavit and say as follows:

1. I am the Chief of Legal Services for the Chief Public

Defender's Office in Connecticut and have represented Richard

Ostroski in the appeal of his conviction.

2. Mr. Ostroski is currently confined in the Connecticut

Correctional Institution, Somers, serving a life sentence.

3. To the best of my knowledge and belief, Mr. Ostroski

has no income or assets whatsoever and because of his poverty

is unable to pay the costs of proceeding in the Supreme Court of

the United States or to give security therefore.

E —

JERROLD N. BARWETT

STATE OF CONNECTICUT

) ss NEW HAVEN

COUNTY OF NEW HAVEN

Personally appeared before me, Jerrold K. Barnett, signer of

the foregoing Affidavit, who, being first duly sworn, declared

it to be his free act and deed this 15th day of July, 1982.

C2

/ Commissioner of the Superior Court