Appendix — Acquin v. Connecticut

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82-896

IN THE

Dice “Supreme Court, US. |

FILED

now 16 1962

ALEXANDER L. STEVAS.

SUPREME COURT OF THE — pw

OCTOBER TERM, 1982

NO.

LORNE J. ACQUIN,

Petitioner

Vv.

STATE OF CONNECTICUT,

APPENDIX TO

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF CONNECTICUT

JOHN R. WILLIAMS,

SUE L. WISE

WILLIAMS & WISE

265 Church Street

New Haven, CT 06510

Counsel for Petitioner

November 18, 1982

APPENDIX

(i)

APPENDIX

TABLE OF CONTENTS

(Connecticut Supreme

Court Decision)......

(Judgment of Superior

[trial] Court).......

(Motion to Reargue to

Connecticut Supreme

Ges odbececadeeense

(Order Denying Motion

to Reargue) ........6.

(Defendant's Motion

to Suppress Confes-

sion, Statements

and Admission).......

(Memorandum of

Superior Court Deny-

ing Motion to

Suppress) ......2e-e0-

(Portions of Tape

Recorded Interro-

gation of Defendant).

Page

la-54a

le- 4e

1f-23f

lg-l2g

APPENDIX A

SUPREME COURT

October Term, 1981

STATE OF CONNECTICUT v. LORNE J. ACQUIN

SPEZIALE, C.J., PETERS, HEALEY, ARMENTANO

and SHEA, Js.

Argued June 3, 1982-decision released

July 27, 1982

Indictment charging the defendant

with nine counts of murder, and informa-

tion charging the defendant with arson in

the first degree, brought to the Superior

Court in the judicial district of Water-

bury and tried to the jury before Pickett,

J.; vercict and judgment of guilty and

appeal by the defendant to this court.

No error.

John R. Williams, special public

defender, for the appellant (defendant).

Francis M. McDonald, state's

attorney, with whom were Paul E. Murray,

assistant state's attorney, Catherine J.

Capuano, special assistant state's

attorney, and, on the brief, Walter H.

Scanlon, chief assistant state's attorney,

for the appellee (state).

SPEZIALE, C.J. In the early morning

hours of July 22, 1977, police and fire

officials found nine bodies, eight of them

children, inside the burned-out house of

Fred Beaudoin, Sr. and Cheryl Beaudoin in

Prospect. All of the victims had been

beaten, some had been bound, and Cheryl

Beaudoin had been stabbed. The defendant,

Lorne Acquin, was indicted for the murders,

and charged by information with first de-

gree arson for the burning of the house.

After a trial before a jury of twelve, he

was found guilty on all counts and sen-

tenced to an effective prison term of not

less than 105 years nor more than life.

Before and during trial, the defend-

ant made a number of motions challenging

the admissibility of a confession which

was obtained from him while he was in

police custody on July 22. He also sought

to suppress items of physical evidence

which he claimed were the fruits of his

illegally obtained confession. These

motions were deniea.?

I "fhe court, however, did suppress

evidence of the defendant's blood type

obtained from a urine sample.

The defendant has appealed to this

court, claiming error in (l) the admission

ef his confession and its fruits at trial,

(2) the exclusion of a written hearsay

statement, and (3) the composition of the

jury array.

: I

THE CONFESSION

The defendant made a confession to

the state police in which he described in

graphic detail his brutal and apparently

motiveless murders of the nine victims.

The confession was admitted at trial over

defendant's objection. The defendant

claims, inter alia, that the confession

was obtained in violation of his fourth

amendment right to be free from unreason-

able seizures and his fifth amendment

right not to be a witness against himself,

as those rights are applied to the states

through the due process clause of the

fourteenth amendment. Mapp v. Ohio, 367

U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081

(1961); Malloy v. Hogan, 378 U.S. 1, 84

S.Ct. 1489, 12 L.Ed.2d 653 (1964).

THE FOURTH AMENDMENT CLAIM

A confession is by definition a

self-incriminating statement, and any

challenge to the admissibility of a con-

fession naturally focuses on the fifth

amendment guarantee that "[n]o person. . .

shall be compelled in any criminal case

to be a witness against himself...."

U.S. Const., amend. V. The now familiar

warnings required by Miranda v. Arizona,

384 U.S. 436, 467-73, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966), are designed primarily

to protect that right. Before the fifth

amendment issue is reached, however, a

preliminary inguiry involving the fourth

amendment must be made.

Miranda held that “the prosecution

may not use statements...stemming from

custodial interrogation of the defendant

unless it demonstrates the use of proce-

dural safeguards effective to secure the

privilege against self-incrimination."

Id., 444. It is clear in the Miranda

opinion itself, and also in cases decided

by this court, that "[b]efore one suspect-

ed of the commission of a crime is entitled

to the warnings constitutionally required

by Miranda ... two conditions must be

satisfied: the suspect must be in the

custody of law enforcement officials;

Oregon v. Mathiason, 429 U.S. 492, 495,

97 S.Ct. 7ll, 50 L.Ed.2d 714 (1977);

Beckwith v. United States, 425 U.S. 34l,

344-48, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976);

and the suspect must be subjected to in-

terrogation. Rhode Island v. Innis, 446

U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297

(1980) ...." State v. Stankowski,

Conn. (42 Conn. L.J., No. 46, pp. 5, 10),

cert. denied, U.S. , 102 S.Ct. 596,

70 L.Ed.2d 588 (1981); see Miranda v.

Arizona, supra, 444.

The first prong above is derived

from the fourth amendment guarantee of

freedom from unreasonable seizures. In

this respect, we recently held that

"“(w)hether the confession and physical

evidence are admissible turns on the

answers to two subsidiary questions: (1)

whether the defendant was 'seized' within

the meaning of the fourth amendment to

the United States constitution and article

first, §7 of the Connecticut constitution

so as to invoke their protection, ard, if

so, (2) whether he was ‘reasonably'

seized, that is, whether there was pro-

bable cause to seize him. State v.

Derrico, 181 Conn. 151, 157-58, 434 A.2d

356, cert. denied, 449 U.S. 1064, 101 S.

Ct. 789, 66 L.Ed.2d 607 (1980); Dunaway v.

New York, 442 U.S. 200, 99 S.Ct. 2248, 60

L.Ed.24 824 (1979)."* State v. Ostroski,

186 Conn. 287, 290-91, 440 A.2d 984

(1982).

Custody

The defendant was in the company of

police officers for all but a few minutes

from 9:30 a.m. on July 22 through the time

his confession began at approximately

11:45 p.m. Ostroski, supra, requires that

the court determine when the defendant was

_ It should be noted that where there

is an illegal seizure it is also necessary

that the acquisition of the evidence

sought to be suppressed be casually re-

lated to the illegal seizure. State v.

Derrico, 181 Conn. 151, 157-58, 434 A.2ad

356, cert. denied, 449 U.S. 1064, 101

S.Ct. 789, €6 L.Bd.2d G07 (1980).

legally in custody and whether, at that

time, the police had probable cause to

arrest hin.

At about 9:30 a.m. on the morning

of the Prospect fire, police went to

Acquin's residence. Trooper James K.

Blais told Acquin that the Beaudoin house

had burned and some deaths had occurred

there. Blais then “asked him if he would

voluntarily help us by coming with us to

help in the investigation.” Acquin

voluntarily agreed to go to the Bethany

barracks, and then to the Meriden state

police headquarters. He was read the

Miranda rights for the first time at about

10:30 a.m., and officers began to question

him about the Beaudoin family and about

his own activities on the previous day.?

The interview was tape recorded.

yy Although the Miranda rights were

read to the defendant he clearly under-

stood them from his responses, the cir-

cumstances surrounding the reading of

those rights are particularly unsettling.

After Blais read from the card, the fol-

lowing conversation took place:

"Blais: Just want to put your initials

on this please.

Acquin: What's all this,...?

Detective Joseph R. Zdanowicz re-

lieved Blais at approximately 10:45 a.m.

and also advised Acquin of the Miranda

rights. Zdanowicz then continued the

Blais: Its [sic] just acknowledging

that I read those rights to you.

Acguin: ...court.

Blais: No, no, no, no. I'm not taking

this into court. It doesn't say that, I

didn't say that to you.

Acguin: (Inaudible).

Blais: No, ... See we have to tell

this. We don't know what you're gonna

tell us. See we have to tell, we have to

advise you of your Constitutional Rights.

Acguin: (Inaudible).

Blais: Because of the importance...,

no.

Acquin: (Inaudible).

Blais: Because we're interviewing you.

We're just interviewing you. See I won't

be talking to anybody ... advise you of

your rights.

Acguin: (Inaudible).

Blais: You've never been advised of

your rights before?

Acquin: (Inaudible). ... arrested.

Blais: You're not arrested."

It is significant that the conver-

sational pattern was repeated later after

Detective Joseph R. Zdanowicz read the

Miranda-based preamble to the defendant's

written statement:

"Zdanowicz: Now this is strictly on

your own volition.

Acgquin: (Inaudible).

Zdanowicz: Alright? Want to read this

all over again?

questioning and prepared a written state-

ment, which Acgquin refused to sign.

Shortly thereafter, at about 1:30 p.m.,

Acquin indicated that he did not want to

Acquin: (Inaudible).

Zdanowicz: (Inaudible).

Acgquin: (Inaudible).

Zdanowicz: They were read to you?

Acguin: (Inaudible).

Zdanowicz: And you don't want to sign

it now do you?

Acgquin: No because I don't ... what it

says. I don't like what it says.

Zdanowicz: What does it say?

Acguin: It says, (inaudible).

Zdanowicz: No....well are you familiar

with the system at all, the judicial

system which you must be because you've

been there so many times?

Acgquin: (Inaudible).

Zdanowicz: You've been there when

they've tried to arrange ....

Acquin: Yes, ...

Zdanowicz: Yeah well the courts also

---talk to people they always...have to

read people their rights in a situation.

That they could add information or be

accused of or whatever the situation may

be. So by law we are required to inform

a subject of his rights and this is what

we're doing. In other words for them,

they say they sat here and chatted with

you and they warned you of your rights and

they gave you this blue card which has all

your rights. If you wish to sign it you

can but don't if you don't have to. And

they do prepare you of your rights because

they have to by law. (Inaudible). I'm

10a

hear about the details of the crime, and

asked to go home. Trooper George R.

Hamila escorted Acquin to a police car,

and they drove him home to Waterbury.

Upon learning that Acquin was being

taken home, Lieutenant James Shay, the

officer then in charge of the investiga-

tion, radioed an order to Hamila to bring

Acquin to the Bethany barracks. Acquin

told Hamila that he did not want to go

back, and they continued toward Waterbury.

When Shay repeated the order, Hamila turn-

ed the car around. Acquin protested and

pened the door of the moving patrol car

not giving any ... statement today, I

want you to fully understand what the

situation is.

Acgquin: I understand."

The statement that a police inter-

viewer “won't be talking to anybody" is

in direct contradiction to the statement

in Miranda that “anything said can and

will be used against the individual in

court." Miranda v. Arizona, 384 U.S. 436,

469, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1967).

Because we hold below that the defendant

was not in custody during the 9:30 a.m.

interview, we need not decide what the

legal effect of this elaboration on

Miranda may be, but we cannot condone any

attempt by officers to explain away the

import of the fundamental constitutional

rights contained in the Miranda warnings.

lla

to get out. Hamila stopped the car, and

Acquin began walking north on Route 69

toward home. Within minutes, at approxi-

mately 2 p.m., Shay arrived on the scene,

accompanied by four other officers in two

police cars. Shay placed a hand on

Acquin's shoulder and spoke to him briefly.

Surrounded by three cars and several offi-

cers, Acquin agreed to return to the

Prospect command post with Shay.

At oral argument before this court,

the state conceded that the defendant was

seized for fourth amendment purposes when

Shay placed a hand on him on Route 69.

We agree.

This court has recently affirmed

that a person has .2en "seized" so as to

invoke the protection of the fourth amend-

ment “‘only when by means of physical

force or a show of authority, his freedom

of movement is restrained. ... As long

as the person to whom questions are put

remains free to disregard the questions

and walk away, there has been no intrusion

upon that person's liberty or privacy as

would under the Constitution require some

particularized and objective justifica-

tion. .. . We conclude that a person has

12a

been “seized” within the meaning of the

Fourth Amendment only if, in view of all

the circumstances surrounding the inci-

dent, a reasonable person would have be-

lieved that he was not free to leave.'

United States v. Mendenhall, 446 U.S. 544,

553-54, 100 S.Ct. 1870, 64 L.Ed.2d 497

(1980)." State v. Ostroski, supra, 29l-

92; see also Miranda v. Arizona, supra,

444. In this case Acquin had just been

questioned for three hours by the police,

he had heard an order to return him to

the police barracks, he was surrounded by

police officers, and the senior officer

had placed a hand on his shoulder. Al-

though Shay did not declare "I seize you

in the name of the State," his classic

gesture could not have been more clear.

No reasonable person could have believed

that he or she was free to leave. The

defendant was in custody at that time.

State v. Ostroski, supra; United States v.

Mendenhall, supra.

The defendant contends, however,

that he was in custody at approximately

9:30 a.m. when he was first questioned.

The record reveals the following undis-

puted facts: The defendant voluntarily

l3a

agreed to accompany the officers, first to

Bethany, then to Meriden. The questions

asked of him concerned the Beaudoin family,

whom he knew well, and his contact with

them the previous day. When he asked to

go home, all questioning stopped, he was

promptly taken to a police car, and the

police started to drive him home. No

claim is made that he was restrained or

coerced in any way during the initial in-

terview. Under the undisputed facts

before us, no reasonable person could have

considered that he was not free to leave

at that time. The defendant was not in

custody until he was seized by Shay at

approximately 2 p.m.

Probable Cause

"'Probable cause exists when the

facts and circumstances within the know-

ledge of the officer and of which he has

reasonably trustworthy information are

sufficient in themselves to warrant a man

of reasonable caution to believe that a

felony had been committed.’ State v.

Wilson, 153 Conn. 39, 42, 212 A.2d 75

[1965]"; State v. Wilson, 178 Conn. 427,

l4a

435-36, 423 A.2d 72 (1979); and that the

person arrested committed it. State v.

DeChamplain, 179 Conn. 522, 529, 427 A.2d

1338 (1980); see Brinegar v. United

States, 338 U.S. 160, 175-76, 69 S.Ct.

1302, 93 L.Ed. 1879 (1949); Carroll v.

United States, 267 U.S. 132, 162, 45 S.Ct.

280, 69 L.Ed. 543 (1925). The quantum of

evidence necessary to establish probable

cause exceeds mere suspicion, but is sub-

stantially less than that required for

conviction. Our cases have made clear

that “(t])here is often a fine line between

mere suspicion and probable cause, and

*(t]hat line necessarily must be drawn by

an act of judgment formed in light of the

particular situation and with account

taken of all the circumstances.' Brinegar

v. United States, supra, 176." State v.

Penland, 174 Conn. 153, 155-56, 384 A.2d

356, cert. denied, 436 U.S. 906, 98 S.Ct.

2237, 56 L.Ed.2d 404 (1978). Furthermore,

when we test the quantum of probable

cause, it is not the personal knowledge

of the arresting officer but the collec-

tive knowledge of the law enforcement

organization at the time of the arrest

which must be considered. State v.

15a

Runkles, 174 Conn. 405, 411, 389 A.2d 730,

cert. denied, 439 U.S. 859, 99 S.Ct. 177,

58 L.Ed.2d 168 (1978); State v. Romano,

165 Conn. 239, 246, 332 A.2d 64 (1973);

State v. Cobuzzi, 161 Conn. 371, 377, 288

A.2d 439 (1971), cert. denied, 404 U.S.

1017, 92 S.Ct. 677, 30 L.Ed.2d 664 (1972).

It is uncontested that the following

facts were known to the police before Shay

approached the defendant on Route 69 at

about 2 p.m.: Nine bodies had been found,

all badly beaten and some tied up, in the

burned-out Beaudoin house. The fire was

the result of arson. Acquin was the

foster brother of Fred Beaudoin, Sr. and

a frequent visitor to the Beaudoin home.

Acgquin had been -: the house from at

least 7:30 to 10 p.m. on the previous

evening, July 21. Acquin had recent

scratches on his face, which he explained

were the result of a mugging the night

before. In Zdanowicz's opinion, the

injuries were not consistent with this

explanation. Acquin had not reported the

mugging to the police, and had not men-

tioned it at all in his oral statement to

the police at approximately 9:30 a.m.

l6a

Resident state troopers in Bethany con-

sidered Acguin to be violent by nature on

the basis of past experience. Acquin had

once lived at the Beaudoin house and the

house had caught on fire during that

period.

In addition, police had interviewed

Fred Beaudoin, Sr. and Alden Brooks, the

only living people other than Acquin

known to heve been at the house on the

night of July 21-22. Beaudoin had been

at work when the fire broke out at appro-

ximately 3:45 a.m., and Brooks had appa-

rently offered an acceptable account of

his own whereabouts. When Acquin was

told of the fire and deaths at 9:30 a.m.

he showed neither surprise nor emotion.

Rose Ann Paolino, who reported the fire

at 3:45 a.m., had seen a dark colored car

speeding away at that time. Acquin often

drove a black Rambler, and had been driv-

ing it earlier in the evening.‘ Finally,

4 ‘Phe defendant stresses the fact

that Paolino stated that the taillights

she saw were round, and that the tail-

lights of the Rambler were rectangular.

It is not clear from the record, however,

whether this discrepancy was known to the

17a

Fred Beaudoin, Jr., one of the child

victims, had told a playmate that Acquin

was going to sleep overnight at the

Beaudoin home on the night of the murders.

The defendant's contention that the

police had information which implicated

others as possible suspects need not de-

tain us. The function of this court is

not to second-guess the reasonable and

logical conclusions of experienced police

officers at the time of their determina-

tion of probable cause. Nor are we con-

cerned with a retrospective look at the

truth or falsity of the information which

police had at the time of the arrest.

Brinegar v. United States, supra, 176.°

police at 2 p.m. Furthermore, a probable

cause determination involves an evalua-

tion of the totality of evidence avail-

able, and often must disregard minor dis-

crepancies in that evidence.

5 The Supreme Court in Brinegar v.

United States, 338 U.S. 160, 176 69 Ss.

Ct. 1302, 53 L.Ed. 1879 (1949), held:

"Because many situations which confront

officers in the course of executing their

duties are more or less ambiguous, room

must be allowed for some mistakes on

their part. But the mistakes must be

those of reasonable [persons], acting on

facts leading sensibly to their conclu-

sions of probability. The rule of pro-

18a

We hold that the defendant was in

custody on Route 69 at 2 p.m., and that

the custody was legal because there was

probable cause to arrest him at that time.

THE FIFTH AMENDMENT CLAIM: MIRANDA

The defendant's graphic and detail-

ed confession to the murders was admitted

at trial. The defendant asserted before

the trial court, and claims before this

court, that the confession was obtained

in violation of his right not to be com-

pelled to be a witness against himself

under the fifth amendment to the consti-

tution, as interpreted in Edwards v.

Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68

L.Ed.2d 378, reh. denied, 452 U.S. 973,

101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), and

bable cause is a practical, nontechnical

conception affording the best compromise

that has been found for accommodating

these often opposing interests [of indi-

vidual rights versus community protec-

tion]. Requiring more would unduly hamper

law enforcement. To allow less would be

to leave law-abiding citizens at the

mercy of the officers' whim or caprice.”

19a

Miranda v. Arizona, supra.

After his encounter with Shay on

Route 69 in Prospect at approximately 2

p.m., Acquin was brought to the Prospect

command post. He was again read the

Miranda rights and then questioned at

length by Hamila regarding his activities

of the preceding two days. At approxi-

mately 5:45 p.m. Acquin interrupted him-

self in midsentence and stated that he

wanted a lawyer.

6 Hamila testified on cross-examina-

tion:

"Q. Okay. While you were at the Pros-

pect Town Hall you told us there came a

time, around five-forty-five p.m., when

Mr. Acquin asked for a lawyer. Would you

relate in detail the circumstances sur-

rounding that request?

A. [Trooper Hamila] I was taking a

statement from him at the Town Hall. And,

as we were talking Lorne just stopped in

the middle of a sentence or whatever I had

written there and he told me, he says: I

think I'm in trouble, I think I better

get a lawyer. And, I says: do you want

a lawyer. He says: I think I better get

a lawyer, I think I got trouble.

' Q. And, then what?

A. I stopped right there. I went to

the door, I opened the door and called for

Captain McDonnell. And, Captain McDonnell

came to the room. I says: I think Lorne

wants a lawyer.”

20a

Hamila reported Acquin's request for

counsel to Captain Thomas McDonnell of the

Connecticut state police, who had assumed

overall command of the investigation.

McDonnell told Hamila to get something to

eat. McDonnell then went into the room

with Acquin and talked with him for over

half an hour in an attempt to discover

who Acgquin wanted to represent him.

McDonnell suggested Acquin's previous

attorney and the public defender. Acquin

rejected both, as he did the suggestion

that his brother be called to get him an

attorney. After some time, Acquin indi-

cated that "it wasn't really an attorney

that he wanted, it was just somebody he

could trust," and that he wanted Joel

Albert, a psychiatrist working with pri-

soners in the New Haven jail. Acquin also

indicated “that as soon as Albert got

there that he would tell us the truth

about what happened the night before."

McDonnell broke off the conversation at

that point, and ordered Shay to find and.

7 Because the conversation between

McDonnell and Acgquin is central to our

holding, McDonnell's testimony on direct

examination is set out at length below:

2la

to summon Albert. He then returned to

the interrogation room, and he and Acquin

decided to get something to eat.

"9. All right. Now, it was in the

vicinity of six o'clock when you talked

to Trooper Hamila regarding this lawyer;

is that right?

A. That's right.

Q. And, he left. What did you do?

A. I went in the room with Lorne

Acgquin and shut the door. And, it was

just he and I in the room at that time.

Q. When you entered the room was there

anybody else there besides Acquin?

A. No.

Q. What, if anything, did you say to

Acquin?

A. I told him that: Trooper Hamila

told me that you want an attorney.

Q. What did he say?

A. He said: yes, he did.

Q. And, then what did you say?

A. I asked him who he wanted. And,

there were very long pauses before he

would respond to my questions. And, then

he said he didn't know; I asked him: did

he have anyone in particular in mind. He

said no. I asked him: how about the

attorney that you had last time. And, he

told me that he didn't trust that attor-

ney and he didn't want him. I asked him

-- told him that: was there anyhody

else, another attorney. He said no, there

wasn't another attorney that he wanted or

trusted. I asked -- Then I told him:

if he couldn't pick an attorney that I

would make calls and get a public defender

or the state would provide an attorney for

him. And, he replied to that that he

22a

Hamila returned shortly thereafter,

and McDonnell, Hamiia and Acquin drove to

a restaurant nearby, where they ate ham-

burgers in the police cruiser.

Gidn't want the attorney that we -- that

I would call. He said: it would be just

like talking to another cop. He didn't

went any attorney that we choose. I then

asked him about his family. I told him:

I was pretty sure that his brother was in

the building someplace, although I hadn't

seen his brother, could his brother get an

attorney for him.

Q. What did he say?

A. He said no. He didn't want his

brother to get involved. He didn't want

his brother to even know he was in the

building or he didn't want his brother

to know that he was involved here in the

building with us.

Q. Then what happened?

A. Then we continued to talk about how

would we find him an attorney, how would

we get an attorney for him. And, he said

that he -- it wasn't really an attorney

that he wanted, it was just somebody that

he could trust. He wanted to sit and have

somebody sitting with us that he trusted

before he had any further conversation.

And, I asked him who that, you know -- is

there such a person, who can we get for

you. And, he suggested a Dr. Albert, who

I was not familiar with and didn't know

who he was. And, I asked who he was and

how he knew him. And, he told me that he

knew him from the New Haven Jail and he

thought he was employed at the New Haven

jail.

23a

Acgquin was not handcuffed or physi-

cally restrained during this trip. At

Acquin's request he was taken to Bethany

rather than back to Prospect, where a

crowd of reporters had gatherec.

About that time I went out to

Lieutenant Shay and I told Lieutenant

Shay that he wanted a Dr. Albert and to

get a hold of Dr. Albert and have him come

to the command center where we were.

Q. Did you ask Acquin whether or not

Dr. Albert was a lawyer?

A. Yes, I did. And, he said that he

knew he was a -- I think he was referring

to him by a slang expression. He was

calling him either a shrink or a head

doctor or something like that, but wasn't

sure whether or not he was an attorney.

And, I told him that, you know, that Dr.

Albert couldn't play the part of an

attorney if, in fact, he wasn't an

attorney. And, Acquin just kept saying

that he wasn't really concerned about

that, what he wanted was somebody to sit

in that he could trust and be with hin.

Q. Did he say he trusted Dr. Albert?

A. He said he trusted a Dr. Albert

very, very much. In fact, he said that,

while this conversation was going on, that

he had told me and Dr. Albert some things

that we were the only two he had ever

told, he hadn't even told some of his

family members.

Q. And, how long did this conversa-

tion go on?

A. Well, from the time I went in the

room until I came out and told Shay -- I

would say from a half to three quarters of

24a

In Bethany, Acquin was left alone

in a room to wait for Albert. He curled

up in an armchair and slept or rested for

about two and one-half hours, when Albert

finally arrived at approximately 11:40

p.m. on July 22. McDonnell woke Acquin

up, and asked whether he still wanted to

see Albert and tc tell his story. Acquin

said he did, and the two of them joined

Albert in another room. McDonnell told

Acgquin that Albert was not an attorney

and reminded him that any statement made

could be used against him in court; ° and

at Albert's request, McDonnell then left

an hour or so....

Q. After he said he wanted to see Dr.

Albert, what happened?

A. Well, that is when I told Shay to

make arrangements to find Dr. Albert.

And, I did that as soon as Acquin said:

that as soon as Dr. Albert got there that

he would tell us the truth about what

happened the night before."

8 McDonnell testified on direct

examination:

"A. I first went down, told Lorne

Acguin that Dr. Albert was here and did

he still want to see him and that he still

wanted to talk with us while Dr. Albert

was present. And, he said: yes, he did.

So, I went back to the room and got Dr.

Albert. And, Dr. Albert came into the

room. And, the three of us then sat in

25a

the room. Albert determined that Acquin

did want him there, and called McDonnell

back in. Neither Acquin nor Albert men-

tioned an attorney.” On direct examina-

‘the room.

Q. And, what happened then?

A. Again, I attempted to make it very

clear to Lorne that Dr. Albert was not an

attorney. I had already inquired of that

fact, that Dr. Albert -- found out he was

not an attorney and that he couldn't act

in the capacity of an attorney. And, I

told him that anything that he told Dr.

Albert while I was seated there and

listening and anything that I overheard,

that I would be able to testify to against

him and use any information obtained

during that conversation against him in

court.”

9 Albert testified on direct examina-

tion at the suppression hearing about his

encounter with Acquin in Meriden:

"Q. Could you describe Lorne Acquin

when you first observed him this night,

Doctor?

A. Mr. Acquin came in. He seemed to

be waking up. He came over to me and

greeted me and I greeted him. He seemed

collected. He seemed to be glad to see

me.

Q. What, if anything, did he say to

you?

A. I believe we exchanged greetings.

I think he said, ‘Hi, Doc.’ I said, “Hi,

Lorne." Something of that nature.

Q. What, if anything, did he say?

A. What's that?

26a

tion, McDonnell described the conversa-

tion which followed:

Q. Then what, if anything, did he say?

A. At one point or other I remember

quite well he, in the presence of myself

and Captain McDonnell, he said, ‘Well,

Doc, I really did it this time.’ And I

had no understanding of what that meant

at that time.

Q. After this greeting and this com-

ment, was there a period you were alone

with Acquin?

A. Yes. I told the Captain that I

wanted to see Mr. Acquin alone, and he

left the roon.

Q. He left the room?

A. Yes.

Q. And both of you were left in the

room alone together?

A. That's correct.

Q. What was the conversation you had

with him?

A. I asked Mr. Acquin whether he

wanted me to be present, in fact, with

him, and he said he did.

Q. Could you tell us, Doctor, if he

said no, what would you have done?

A. I would have left.

Q. As he said yes --

A. I probably would have also asked

him what was going on, things of that

nature.

Q. But you would not have remained?

A. No, not at all.

Q. After this short conversation what

happened?

A. Then I -- once I was assured Mr.

Acguin did want me to be there as a wit-

ness, I called the Captain in.

27a

"A. They [sic] then asked Lorne

Acquin: do you want to tell us what

happened last night. And, he said: no,

I don't want to tell you.

Q. And, what did you say?

Q. What, if anything, did you say to

the Captain?

A. I didn't say anything to the

Captain.

Q. What happened next? Did anybody

say anything?

A. At that point the Captain said

something to the effect that ‘Dr. Albert

is here now and you said you wanted to

say something else to us, or make a state-

ment,’ something of that nature, at which

point Mr. Acquin went into a rather

graphic confession of the killings.

Q@. Do you recall how this began?

A. Spontaneously on Mr. Acquin's part.

Q. Do you recall the first thing he

said in regards to --

A. As a matter of fact, I think that

-- I'm quite sure but I'm not absolutely

sure that Captain McDonnell reminded Mr.

Acguin of his legal rights prior to Mr.

Acquin making any -- you know, going into

any statement or details of what had gone

on that previous evening.

Q. Do you recall the words used by

Captain McDonnell?

A. No, I can't recall that.

Q. Did he say he didn't have to say

anything or words to that effect?

A. Yes.

Q. All right. De you recall the first

thing that Lorne Acquin said in regards

28a

A. I said: well, I thought you

said when Dr. Albert got here that you

would tell us the truth about what happen-

ed last night. And, he said: well, what

I mean is, it's--I don't want to tell you,

I want you to ask me questions, I can't go

through it all again. So, I asked him

questions.

Q. Did you ask him questions?

A. Yes.

Q. What did you ask him first?

A. First question I asked him was:

how did you really get those cuts. Pre-

viously he told us he got the cuts during

an assault, he was assaulted by some

people up in the Waterbury area. And, his

to the killings?

A. I might just add that he aiso--

I'm quite sure that he made it clear that

it was possible if Mr. Acquin wanted to

have counsel present.

Q. I see. This was before he gave

the confession?

A. That's correct.

Q. What happened after he said that?

A. Then Mr. Acquin went into his

statement.

Q. I see, Do you recall--this is an

oral statement?

A. It was a spontaneous oral state-

ment."

29a

reply to my question was that he didn't

get the cuts from those guys the way he

told me.

Q. And--

A. And, then I asked him: did you

kill all those people. And, he said:

yes, he did. And, then without any fur-

ther questions for quite some time, he

went into a narrative about what happened

the night before."

The defendant claims that the facts

before us establish as a matter of law

that his confession was obtained in viola-

tion of his constitutional rights. We

disagree.

Any inquiry into the admissibility

of a confession obtained while a defendant

is in custody must of course begin with

Miranda v. Arizona, supra. In that case,

the United States Supreme Court held that

the fifth and fourteenth amendments' pro-

hibition against compelled self-incrimina-

tion requires that a suspect in police

custody be informed specifically of his or

her right to remain silent and to have an

attorney present before being questioned.

Miranda v. Arizona, supra, 444, 479. The

30a

court further held that "[i]Jf the indivi-

dual indicates in any manner, at any time

prior to or during questioning, that he

wishes to remain silent, the interrogation

must cease"; Id., 473-474; and "[(i]f the

individual states that he wants an attor-

ney, the interrogation must cease until an

attorney is present." Id., 474. Further-

more, “(i)f£ 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-incrimi-

nation and his right to retained or ap-

pointed counsel." Id., 475. The standard

for waiver is that announced in Johnson v.

Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,

82 L.Ed. 1461 (1938): "A waiver is ordi-

narily an intentional relinguishment or

abandonment of a known right or privilege.

. - -(which] must depend, in each case,

upon the particular facts and circumstances

surrounding that case, including the back-

ground, experience, and conduct of the

accused." Accord, North Carolina v.

Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.

3la

Ed.2d 286 (1979); State v. Wilson,

Conn. (42 Conn.L.J., No. 37, p. 1) (1981).

The Supreme Court recently recon-

firmed the principles stated above in

Edwards v. Arizona, supra, where the court

held: "“(W)jhen an accused has invoked his

right to have counsel present during

custodial interrogation, a valid waiver of

that right cannot be established by show-

ing only that he responded to further

police-initiated custodial interrogation

even if he has been advised of his rights.

We further hold that an accused, such as

Edwards, having expressed his desire to

deal with the police only through counsel,

is not subject to further interrogation

by the authorities unt i counsel has been

made available to him, unless the accused

himself initiates further communication,

exchanges, or conversations with the

police." Id., 484-85,

The defendant contends that Edwards

v. Arizona, supra, establishes a per se

rule that once an accused has asked for

counsel, any further questioning of any

kind by the police violates his fifth

amendment rights.

32a

We do not, however, construe the

Edwards opinion so broadly. To do so

would transform the Miranda safeguards

“into wholly irrational obstacles to legi-

timate police investigative activity, and

deprive suspects of an opportunity to make

informed and intelligent assessments of

their interests." Michigan v. Mosley, 423

U.S. 96, 102, 96 S.Ct. 321, 46 L.Ed.2d 313

(1975). We believe that the Edwards opi-

nion is a restatement of existing prin-

Ciples of constitutional law, and is not

intended to overrule decided cases,

Edwards does not prohibit communication

between police and a suspect who has re-

quested an attorney. Rather it prohibits

the use of confessions obtained when

police “initiate” renewed custodial in-

terrogation after such a request. The

Supreme Court has stated quite clearly

that the Miranda safeguards are relevant

only when an in-custody accused is sub-

jected to interrogation. "'Interrogation'"

means “any words or actions ... that the

police should know are reasonably likely

to elicit an incriminating response from

the suspect.” Rhode Island v. Innis, 446

U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d

33a

297 (1980). See State v, Palby, 187 Conn,

6, 15, 444 A,2d 213 (1982); State v.

Graham, 186 Conn, 437, 443, 441 A.2d 857

(1982). The per se rule suggested by the

defendant would negate the holding in

Innis by forbidding any conversation ini-

tiated by police after a request for

counsel whether or not “likely to elicit

an incriminating response." But the majo-

rity in Edwards was careful to disavow

any intention to overrule the interroga-

tion requirement of Miranda and Rhode

Island v. Innis, supra, stating: "The

Fifth Amendment right identified in

Miranda is the right to have counsel pre-

sent at any custodial interrogation

{absent which] ... there would have been

no infringement of the right that Edwards

invoked . .. ." Edwards v. Arizona,

supra, 485-86.

The relevant inquiry when a defend-

ant has clearly invoked his right to

counsel is to ask, first, was there in

fact interrogation and, second, did the

police initiate it. Edwards v. Arizona,

supra, 490 (Powell, J., concurring in the

34a

result) .+°

It is unquestioned that Acquin was

read the Miranda rights before any state-

ment was taken, and it appears clear from

the record that he understood those rights.

It is also undisputed that he specifically

requested an attorney at 5:45 p.m. ("I

think I'm in trouble, I think I better

get a lawyer."), and that he confessed

several hours after that request. Edwards

and Miranda require, therefore, that we

examine two incidents which occurred after

the defendant's request: (1) McDonnell's

inquiries about whom the defendant wanted

as an attorney; and (2) the events imme-

diately following the arrival of Albert

in Bethany, which immediately preceded the

Id Our conclusion that Edwards v.

Arizona, 451 U.S. 477, 101° S.Ct. Isso, 68

L.Ed.2d 378, reh. denied, 452 U.S. 973,

101 S.Ct. 3125, 69 LEd.2a 984 (1981),

does not announce new principles is

supported by most courts which have ruled

on the question, See United States v.

Halliday, 658 F.2d 1103 (6th Cir. IST);

Richardson v. State, 625 S.W.2d 504, 507

(Ark. ISSI); Beo le. v. Denby, 102 tll,

App. 3d 1141, 130 N.E.2d S07 (1981);

Bryant v. State, 49 Md. App. 272, ae A.2d

oe ener e ein tate v. Scott, 626 S.W .2d

25 (Tenn. Crim. App. ISSIy.

35a

confession.

Inquiries about Counsel

When Acgquin said, "I think I better

get a lawyer," Hamila, who was questioning

him, stopped immediately and reported the

request to his superior, McDonnell.

McDonnell proceeded to ask further ques-

tions of the defendant in an attempt to

ascertain whom he wanted to represent him,

McDonnell offered to call: Acquin's pre-

vious attorney, any other attorney, and

the public defender. Acquin said he

didn't want any of them. McDonnell then

offered to find Acquin's brother, who he

thought was “in the building someplace"

and have him obtain an < torney. Again

Acquin refused the offer, indicating that

"he didn't want ris brother to know that

he was involved ...." On further inquiry

about how to find a lawyer, Acquin indi-

cated that “it wasn't really an attorney

that he wanted, it was just somebody that

he could trust,” and asked that Albert be

present before he made a statement.

Acquin told McDonnell "that as soon as Dr.

Albert got there that he would tell...the

truth about what happened the night be-

36a

fore." McDonnell then ordered a search

for Albert.

The questions asked by McDonnell

were not interrogation. They were not

of the kind likely to elicit an incrimi-

nating response. Rather, they were limit-

ed to information which would allow

McDonnell to comply with the defendant's

request for counsel by ascertaining who

should be called. Questions of this type,

when limited to finding the attorney of

the suspect's choice, are not forbidden by

Miranda and its progeny. The right to

counsel is of little use to an accused if

police are not allowed to ascertain whom

to summon. McDonnell suggested several

different ways for the defendant to obtain

legal advice, and even offered to call the

defendant's brother. Such carefully

limited questions cannot reasonably be

considered interrogation, and would be

proper whether or not the defendant's re-

quest for counsel was “equivocal.” See

Nash v. Estelle, 597 F.2d 513 (5th Cir.

1979) (en banc) .2+

TI See discussion of this case, infra,

673.

37a

The Confession

Albert arrived in Bethany at about

11:40 p.m., more than five hours after

Acquin told McDonnell that he would "tell

the truth about what happened last night"

if Albert were present. The two met alone,

very briefly, and then Albert called

McDonnell back into the room, McDonnell

was careful to explain that Albert was not

an attorney, and that if Acquin said any-

thing to Albert in McDonnell's presence,

it could be used in court. McDonnell

testified on direct examination to the

ensuing conversation: "[I] then asked

Lorne Acquir: do you want to tel’ us

what happened last night. And, he said:

no, I don't want to tell you. ... I said:

well, I thought you said when Dr. Albert

got here that you would tell us the truth

about what happened last night. And, he

said: well, what I mean is, it's--I don't

want to tell you, I want you to ask me

questions, I can't go through it all

again. So, I asked him questions.” A

detailed confession followed.

Edwards v. Arizona, supra, holds

that confessions obtained after a request

38a

for counsel are inadmissible if they are

the result of renewed custodial interro-

gation "initiated" by the police. In

Edwards, the defendant was arrested for

robbery, burglary and murder, advised of

his rights, and then questioned about the

crimes, After giving a statement present-

ing an alibi defense, Edwards sought to

make a deal. He then stated: "'I want

an attorney before making a deal,'"

Police immediately ceased all questioning,

and Edwards was locked up. The next

morning, two detectives came to the jail

and aske@? to see Edwards, who told the

guard the: he did not want to talk to

anyone, ‘the guard replied that "'he had'"

to talk to them, and took him tc an

interrogation room where he was played a

recording of an "alleged accomplice who

had implicated him" in the crimes,

Edwards then gave a second statement which

incriminated him. Edwards v. Arizona,

supra, 478-79. It was the second state-

ment which was excluded by the Supreme

Court decision in Edwards.

We have already indicated that we

do not read Edwards to prescribe a per se

rule that a confession which follows any

39a

conversation initiated by police after a

request for counsel must be suppressed.

We agree with Justice Powell, concurring

in Edwards v. Arizona, supra, 488-492,

that "few cases will be as clear as

[Edwards]. Communications between police

and a suspect in custody are commonplace.

It is useful to contrast the circumstances

of this case with typical, and permissible,

custodial communications between police

and a suspect who has asked for counsel.

For example, police do not impermissibly

‘initiate’ renewed interrogation by en-

gaging in routine conversations with

suspects about unrelated matters. And

police legitimately may inquire whether

a suspect has changed h.s mind about

speaking to them without an attorney.

E.g., State v., Turner, 32 Ore, App. 61,

65, 573 P.2d 326, 327 (1978); State v.

Crisler, 285 N.W.2d 679, 682 (Minn. 1979);

State v. Marcum, 24 Wash. App. 441, 445-

446, 601 P.2d 975, 978 (1979)." Id., 490.

Unquestionably, the defendant in-

voked his right to counsel, "I think I

better get a lawyer” could hardly be more

clear; however, subsequent legitimate

40a

questions to find out whom he wanted

showed that the request was not as un-

equivocal as it appears to be on its face.

Acquin stated, among other things, that

"it wasn't really an attorney that he

wanted, it was just somebody that he could

trust. He wanted to sit and have somebody

sitting with us that he trusted before he

had any further conversation,"

We note in this regard Fifth Circuit

cases which foreshadowed the decision in

Edwards v. Arizona, supra, and which the

Edwards majority approved: "The rule in

the Fifth Circuit is that a knowing and

intelligent waiver cannot be found once

the Fifth Amendment right to counsel has

been clearly invoked unless the accused

initiates the renewed contact. See, e.g.,

United States v. Massey, 550 F.2d 300

({Sth Cir.] 1977); United States v. Priest,

409 F.2d 491 ([(5th Cir.] 1969). Waiver is

possible, however, when the request for

counsel is equivocal. Nash v. Estelle,

597 F.2d 513 ((Sth Cir.] 1979) (en banc).

See Thompson v. Wainwright, 601 F.2d 768

({S5th Cir.] 1979)." Edwards v. Arizona,

Supra, 486 n, 9,

4la

In Nash v. Estelle, 597 F.2d 513

(Sth Cir, 1979) (en banc), in upholding

the admission of a confession, the court

stated: “When police stop interrogation

as required [after a request for counsel],

admissions that later come at the initia-

tive of a suspect are subject to the tra-

ditional analysis for voluntariness....

The same principle governs when,...a sus-

pect who has been informed of his rights

expresses both a desire for counsel and a

desire to continue the interview without

counsel. Where the suspect's desires are

expressed in such an equivocal fashion, it

is permissible for the questioning offi-

cial to make further inquiry to clarify

the suspect's wishes." (Citations

omitted.) Id., 517. In Nash v. Estelle,

suvra, the accused, Nash, was advised of

his rights prior to questioning. His

"equivocal" request for counsel began un-

equivocally: "Nash: Well, I don't have

the money to hire one, but I would like,

you know, to have one appointed. [Prose-

cutor] Files: You want one to be appoint-

ed for you? Nash: Yes, sir." Id., 516.

The relevant dialogue is quoted in the

42a

footnote. In Thompson Vv. Wainwright,

601 F.2d 768 (5th Cir. 1979), also cited

in Edwards v. Arizona, supra, the Fifth

Circuit clarified the rule: "(W]henever

even an equivocal request for an attorney

Iz "Nash: “I understand that I do-~I

don't have to tell him anything, and what

I say can be used against me in Court. I

do not want to--I mean I do not want to

have a lawyer present in Court, I mean at

this time,

Files: The the place under that is--

Nash: If I want a lawyer present,

I just put down I want him present?

Files: Please just tell us about it.

Any time we are talking and you decide

that you need somebody else here, you

just tell me about it and we will get

somebody up here.

Nash: Well, I don't have the money

to hire one, but I would like, you know,

to have one appointed.

Files: You want one to be appointed

for you?

Nash: Yes, sir.

Files: Okay. I had hoped that we

might talk about this, but if you want a

lawyer appointed, then we are going to

have to stop right now.

Nash: But, uh, I kinda, you know,

wanted, you know, to talk about it, you

know, to kinda, you know, try to get it

straightened out.

Files: Well, I can talk about it

with you and I would like to, but if you

want a lawyer, well, I am going to have to

— off, I can't talk to you. It's your

ife.

43a

is made by a suspect during custodial

interrogation, the scope of that interro-

gation is immediately narrowed to one

subject and one only. Further questioning

thereafter must be limited to clarifying

that request until it is clarified. When

and if it is clarified as a present desire

for the assistance of legal counsel, all

interrogation must cease...." (Emphasis

in original.) Thompson v. Wainwright,

supra, 771.

“Nash: I would Tike to have a lawyer,

but I'd rather talk to you.

Files: Well, what that says there

is, it doesn't say that you don't ever

want to have a lawyer, it says that you

don't want to have a lawyer here, now.

You got the right now, and I want you to

know that. But if you want to have a

lawyer here, well, I am-not going to talk

to you about it.

Nash: No, I would rather talk to

you.

Files: You would rather talk to me.

You do not want to have a lawyer here

right now?

Nash: No, sir.

Files: You are absolutely certain

of that?

Nash: Yes, sir.

Files: Go ahead and sign that

thing." Nash v. Estelle, 597 F.2d 513,

516-17 (5th Cir. I979) fen banc).

44a

We believe that Edwards v. Arizona

must be read to include this common-sense

Pifth Circuit rule, which was implicitly

approved by the majority, and specifically

stated in Justice Powell's concurring

opinion .*?

In the case before us, the defend-

ant's request for counsel was more “equi-

vocal" than Nash's. Although, like Nash,

Iv” _*TPlolice légitimately may inquire

whether a suspect has changed his mind

about speaking to them without an attor-

ney." Edwards v. Arizona, 451 U.S. 477,

490, 10I S.Ct. 1880, 68 L.£&d.2d 378

(Powell, J. concurring in the result),

reh. denied, 452 U.S. 973, 101 S.Ct. 3128,

65 L.Bd.2d 984 (1981). This rule is also

in accord with the decision in State v.

Scott, 626 $.W.2d 25 (Tenn. Crim. App.

ISsI). There, the police stopped

questioning when the defendant requested

counsel. On his way to the holding cell,

however, the defendant stopped to talk to

his girlfriend, The escorting officer

“heard her informing appellant he should

tell the truth. [The officer then) asked

appellant if he wanted to talk about it or

go ahead to the detention area." Id., 29.

The court held that "[t]hese facts Cannot

be equated with a resumption of the in-

terrogation as condemned by Edwards v.

Arizona, supra." Ibid.

45a

Acquin clearly asked for counsel, he also

rejected every suggestion for obtaining

an attorney, including talking to his own

brother. Instead he stated that he would

"tell the truth" if the police allowed

Albert to be there. The trial court found

that "the defendant's request for counsel

was indecisive and under the circumstances

Captain McDonnell was correct in making an

inquiry into whether the suspect did or

did not want counsel present." The record

amply supports the trial court's conclu-

sion that the defendant's request was

"indecisive" and therefore equivocal. We

cannot therefore say that this conclusion

is clearly erroneous under the well-

established standard of factual review.

Practice Book §3060D; Kaplan v. Kaplan,

186 Conn. 387, 392, 441 A.2d 629 (1982);

Pandolphe's Auto Parts, Inc. v. Manchester,

181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The finding of indecisiveness alone,

however, does not settle the question of

admissibility of the confession. This

exception to the general rule of Edwards

is very narrowly circumscribed. The facts

of this case demonstrate the limits of the

46a

inquiry which can be made. McDonnell

limited his clarifying questions care-

fully to the subject of whom Acguin wanted

as his counsel. No question implied in

any way that the request might be denied,

or that it would be advisable to talk

before obtaining counsel. Five hours

passed before Albert arrived. McDonnell

then told Acquin that the doctor was there

and asked whether he still wanted to see

him and to give a statement. The defend-

ant answered affirmatively. Albert and

Acgquin conferred alone, then Albert called

McDonnell in. McDonnell again explained

the legal consequences of making a state-

ment?* and then asked whether Acquin

wanted to tell them what happened the

night before. When Acguin said "I don't

want to teil you,” McDonnell expressed

his confusion, whereupon Acquin explained

"“([wjell, what I mean is...I don't want to

tell you, I want you to ask me questions

-+e.-" This clarification from the defend-

ant indicated his desire to talk. The

scope of questioning here compares favor-

Iq” Bee Footnote 7, supra.

47a

ably with that of the prosecutor in Nash

v. Estelle, supra, 516. The inquiries

of McDonnell were limited to those neces-

sary to ascertain that he was aware of the

consequences of giwing a statement.

The defendant's confession was not

obtained in violation of Edwards v.

Arizona, supra, because his request for

counsel was equivocal.

Waiver

Our coticlusion that the defendant's

confession is not made inadmissible solely

because he had previously asked for an

attorney does not emd the inguiry. The

trial court correctly stated that "(t]he

next guestion is whether the defendant

'woluntarily, knowingly and intelligently'

waived his rights. The state has a ‘heavy

burden' of demonstrating that the suspect's

cofistitutional rights have been respected.

State v. Darwin, 29 Conn. Sup. 423, 432

{290 A,2d 593 ({1972)]. Waiver has been

defined as ‘an intentional relingquishment

of abandonment of a known right or privi-

lege.' Johnson v.(Zerbst), 304 U.S. 458,

464 ... 58 S.Ct. 1019, 1023, 82 L. Ed.

1461, 1466 [1938], This standard is

48a

applied to an in-custody interrogation.

Miranda, supra, 475." A finding of waiver

involves two interrelated factual deter-

minations: (1) did the defendant under-

stand his rights; and (2) did he volun-

tarily relinquish them. State v. Wilson,

Conn. (42 Conn. L.J., No. 37., pp. l,

3) (1981); State v. Derrico, 181 Conn, 15l,

157-58, 434 A.2d 356, cert. denied, 449

U.S. 1064, 101 S.Ct. 789, 66 L.Ed.2d 607

(1980); North Carolina v. Butler, supra.

The trial court in its discretion makes

these determinations, but that discretion

must be “exercised in accordance with

constitutional standards of due process."

State v. Derrico, supra, 162-63. The

trial court found, and the record indi-

cates, that the defendant was given the

Miranda warnings five times, that he

understood his rights, and that neither

threats nor physical force were used on

the defendant. Moreover, the defendant

had been arrested and advised of his

rights several times before. One of the

unusual facts of this case is that Albert,

a professional psychiatrist who was call-

ed to the scene at the defendant's request,

was present during the events leading up

49a

to the confession. He witnessed the

entire confession, and testified that in

his opinion the defendant "seemed collect-

ed,” and understood the meaning of the

warnings given to him, Albert also stated

that the confession was given "“sponta-

neously” and that he felt the defendant

had a psychological need to tell the

story. Acquin also indicated twice that

he wanted to tell the truth, but that he

just wanted somebody he could trust

(Albert) to be there.

We cannot say that, on the basis of

the evidence before it, the trial court

erred in concluding that the defendant

knowingly and voluntarily waived his

rights to counsel and to remain silent.

There is simply no evidence that the cir-

cumstances were such as to "‘overbear...

[the accused's] will to resist....'"

State v. Devine, 149 Conn. 640, 653, 183

A.2d 612 (1962); Culombe v. Connecticut,

367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.

2d 1037 (1961).

On the basis of the foregoing we

conclude that the trial court did not err

50a

in admitting the defendant's confession .+5

THE HEARSAY STATEMENT

At trial the defendant offered in

evidence a signed written statement given

to a state policeman by John Ricciuti,

I5- The defendant also claims that his

confession was illegally obtained because

at approximately 6:30 p.m. McDonnell "“ask-

ed him [Acquin]: what other scratches he

had beside the one[s] I can see on his

face and his arms." Acquin responded by

dropping his trousers to show a scratch

or burn mark on his thigh. The defendant

now contends that McDonnell's question

violated the rule in Edwards v. Arizona,

451 U.S. 477, 101 S$.ct. I880, 68 L.Ed.2da

378, reh. denied, 452 U.S. 973, 101 S.Ct.

3128, “$3 LEd.2d 984 (1981), and that his

confession therefore should have been

suppressed,

We do not consider this episode to

merit extensive discussion for several

reasons. First, as outlined above, the

request for counsel was equivocal and,

therefore, did not bar all further ques-

tions. Second, there was no causal con-

nection between the "scratches" question

and the confession made more than five

hours later after Aibert had arrived and

spoken to Acquin. See Edwards v. Arizona,

supra, 488-92 (Powell, J., Concurring in

the result); Michigan v. Mosley, 423 U.S.

96, 107-11, 96 - “te 321, Fe L.Ed.2d 313

(1975) (White, J oe concurring in the

result). Cf. Brown v. Illinois, 422 U.S.

590, 95 S.Ct. 7254, 45 L.Ed.2d 416 (1975);

5la

owner of a bar which the defendant had

visited the night of the murders.

Ricciuti, a fugitive from New Jersey

authorities, could not be located and was

unavailable to testify. The statement

indicated that the defendant was not drunk

at 1 a.m., and therefore contradicted the

testimony of Deborah Veilleux that the de-

fendant had slurred speech and "walked

kind of staggered.” The court refused to

admit the Ricciuti statement on the ground

that it was hearsay.

Wong Sun v. United States, 371 U.S. 471,

83 = Ct. 407, 9 L.Ed.2d 441 (1963).

Finally, it is an open question whether

the "scratches" episode can be considered

interrogation at all, because the defend-

ant was asked only to supply nontestimo-

nial evidence of the condition of his body

which he might have been compelled to give

without any violation of his constitu-

tional rights, whether or not counsel was

present. See Schmerber v. California, 384

U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908

(1966); see also United States v. Wade,

388 U.S. 218, 87 5.Ct. 1926, IS L.Ed. 21

1149 (1967); State v. Adams, 176 Conn,

138, 141-42, 76 A.2d I TI578) ; State v.

Che sne 166 Conn. 630, 640-41,

783 cert. denied, 419'U.S, 1004, 95 8.

Ct. 327, a L.Ed. 2a 280 (1974) and cases

cited therein.

52a

Unquestionably the statement was

hearsay, and therefore admissible only if

permitted under some exception to the

rule. Izzo v. Crowley, 157 Conn. 56l,

563, 254 A.2d 904 (1969); see Tait &

LaPlante, Handbook of Connecticut Evidence

(1976) c. 1l. The defendant has not shown

or even argued that the Ricciuti statement

comes within any exception recognized in

Connecticut. See, e.g., State v. Gold,

180 Conn. 619, 630, 431 A.2d 501, cert.

denied, 449 U.S. 920, 101 S.Ct. 320, 66

L.Ed.2d 148 (1980); State v. DeFreitas,

179 Conn, 431, 450-41, 426 A.2d 799 (1980).

Moreover, here, the trial court specifi-

cally found that “there was no evidence

that the circumstances surrounding the

statement provide any sanction for ascer-

taining its truth..."; that is, the trial

court did not find it trustworthy.?®

Ie Because of Chis Conclusion by the

trial court, we need not review whether

the statement can be considered exculpa-

tory as we defined the word in State v.

Gold, 180 Conn. 619, 630 n. 5,

501, cert. denied, 449 U.S. 920, 101 S.ct.

320, 66 LEd.2d 148 (1980).

53a

Nothing before us indicates that this de-

termination was an abuse of discretion,

and we find no error in the trial court's

decision to exclude the statement.

Iit

CHALLENGE TO THE JURY ARRAY

The jury array from which the jury

panel was chosen in this case was 44,82

percent female, while 52.69 percent of

registered voters in New Haven County were

female, a difference of 7.87 percent. The

defendant, after presenting only these

facts to the trial court, moved to dismiss

the jury panel on the ground that the

array from which it was selected was not

a fair cross-section of the community.

The trial court denied the motion, stating

that the difference was statistically

significant but that it did not consti-

tute in any way an unmrepresentative or

unfair cross-section of the community.

"In order to establish a prima facie

violation of the fair cross-section re-

quirement, the defendant must show (1)

that the group alleged to be excluded is

a ‘distinctive’ group in the community;

(2) that the representation of this group

54a

in venires from which juries are selected

is not fair and reasonable in relation to

the number of such persons in the commu-

nity; and (3) that this underrepresenta-

tion is due to systematic exclusion of

the group in the jury selection process,”

State v. Frazier, Conn. (43 Conn.L.J.,

No. 6, pp. 16, 17) (1981), quoting Duren

v. Mississippi, 439 U.S. 357, 364, 99 S.

Ct. 664, 58 L.Ed.2d 579 (1979).

The defendant presented no evidence

whatsoever to show that this underrepre-

sentation was due to systematic exclusion

of the group. State v. Frazier, supra,

18. Therefore, he failed to make the re-

quired prima facie showing, and there was

no error in the denial of his motion.

There is no error.

In this opinion the other judges

concurred.

APPENDIX B

( 13052 )

STATE OF CONNECTICUT

At A Superior Court Held At Waterbury,

Within And For the Judicial District Of

Waterbury, On The Thirtieth Day of

November, A.D., 1979.

State of Connecticut

vs.

Lorne Acquin, of Waterbury

JUDGMENT

Upon the application of Walter

Scanlon, Assistant State's Attorney for

the Judicial District of Waterbury, a

Bench Warrant was issued on July 23, 1977,

charging Lorne Acquin with the crime of

murder in violation of Section 53a-54a of

the General Statutes and of the crime of

Arson in violation of Section 53a-lll of

the General Statutes, and said action

came thence to July 24, 1977, when said

defendant appeared, and said action came

thence to August 2, 1977, when, upon

application by the State's Attorney, a

Grand Jury was summoned and ordered to

convene on September 7, 1977, and said

action came thence to September 7, 1977,

when said Grand Jury returned a true bill

on each of nine said charging said de-

fendant with the crime of intentional

murder in violation of Section 53a-54a of

the General Statutes and in each of said

counts, and said action came thence to

September 15, 1977, when the defendant

again appeared and entered a plea of Not

Guilty to each of the nine (9) counts of

said Grand Jury Indictment and to an In-

formation charging said Lorne Acquin with

the crime of Arson in the First Degree, in

violation of Section 53a-lll of the Gene-

ral Statutes, and elected a trial by jury

as to both the Indictment and Information

charges, and said action came thence to

May 21, 1979, all pretrial motions having

been heard, the trial of said action to

the jury commenced, and thence to October

18, 1979, when all evidence having been

submitted, said action was committed to

the jury, and thence to October 19, 1979,

when jury returned a verdict of Guilty on

each of nine counts of Murder and on one

count of Arson in the First Degree, and

when said defendant filed a Motion for New

Trial and a Motion for Acquittal, and when

said action was continued to November 30,

1979, for sentencing and when a pre-

sentence investigation and report was

ordered, and thence to November 20, 1979,

when the Motions for New Trial and for

Acquittal were denied, and thence to the

present time when the defendant appeared

for sentencing.

Whereupon, It Is Adjudged that the

defendant, Lorne Acquin, be committed to

the custody of the Commissioner of Cor-

rections, at Somers, for a period of not

less than 25 years nor more than life on

the first count of said indictment, and

to a period of not less than 10 years nor

more than life on each of the other eight

counts of said indictment, said sentences

on all nine counts to run consecutively.

Further, said defendant Lorne Acquin is

committed to the custody of said Commis-

sioner of Corrections, at Somers, for a

period of not less than 10 years nor more

than 20 years on the charge of Arson in

the First Degree, said sentence to run

concurrent with the sentences imposed on

the nine counts of said Indictment, ef-

fective sentence, 105 years to life.

By the Court

Francis J. Butler

Clerk

APPENDIX C

NO. 9891

STATE OF CONNECTICUT SUPREME COURT

vs. STATE OF CONN.

LORNE J. ACQUIN JULY 27, 1982

MOTION TO REARGUE

Pursuant to Sections 3lll, et seg.,

of the Practice Book, the defendant moves

to reargue the appeal in this case for the

following reasons:

1. In State v. Ostroski, Conn.

__, 440 A.2d 166, 167 (1981), this court

expressly held: "Whether and when a per-

son is taken into custody is a question

of fact....It is the function of the trial

court, not this court, to find facts.

Whether or not the defendant was in cus-

tody is a critical threshold question

which must be determined before we can

properly review the claims made in this

appeal." (Emphasis supplied.)

2. This court's opinion in the pre-

sent case, 187 Conn. 647, consists prima-

rily of findings of facts, most of which

were not found by the trial court and most

of which are and were actively contested

between the parties and among the witness-

es. These factual findings by this court

are a crucial part of the court's opinion.

This court, in its opinion, neither over-

ruled, cited nor distinguished its holding

in Ostroski, supra.

3. This court has no jurisdiction

to sit as a finder of facts and, because

it neither sees nor hears any of the wit-

nesses, is uniquely unqualified for such

a function,

4. Neither at nor before oral argu-

ment were the parties advised that this

court would sit as a trier of facts.

Accordingly, no effort was made by the

parties to marshall their evidence nor to

persuade the court to adopt one or another

disputed factual claim. For this court

to sit, as it has in this case, as a trier

of disputed facts and decide which wit-

nesses it believes and which it does not

-- without advance notice to the parties

and in contravention of established

Connecticut law -- denies this defendant

due process of law in violation of the

Fourteenth Amendment to the United States

Constitution. Moreover, because Lorne J.

Acquin is the only appellant in Connecti-

cut history who has lost an appeal in this

court because this court chose to sit sue

sponte as a trier of disputed facts, the

court's action deprives Mr. Acquin of

equal protection of the laws in violation

of the Fourteenth Amendment.

5. As in Ostroski, supra, the trial

court in this case made no factual finding

as to “whether and when [Mr. Acquin was]

taken into custody...." 440 A.2d at 167.

Nevertheless, this court in violation of

its holding there found that he was taken

into custody at 2:00 P.M., as the state

Claimed, rather than at 9:30 A.M., as the

appellant claimed. This court had no

power to make such a finding of fact.

6. The court below, in its findings

of facts, expressly assumed that the de-

fendant was arrested without probable

cause, It made no findings as to what

facts the police did or did not know at

various points in the arrest proceedings.

[See Appendix to brief of appellant, pp.

A-70, et seg.] This court chose to find

as a fact that there was probable cause

to arrest Mr. Acquin, and made that find-

ing upon the basis of this court's own,

sua sponte, findings of subordinate facts

which (a) were not found by the court

below and (b) have not been agreed to by

the parties and (c) are, in fact, hotly

disputed. Among other things:

A. This court found that the de-

fendant “voluntarily agreed to accompany

the officers...to Meriden.” There was no

such evidence and no such finding by the

court below. In fact, after the defendant

had entered the police cruiser he was sub-

jected to a police search and seizure of

his property [7/5/78 Tr. p. 13; 7/11/78

Tr. p. 82; 7/13/78 Tr. pp. 38, 41, 43, 44;

9/14/78 Tr., Stipulation, p. 41] and the

officers then were “instructed” to take

Mr. Acquin to Meriden without regard to

his wishes or willingness to go. [7/5/78

Tr. p. 15; 7/17/78 Tr. p. 12] Trooper

Blais then informed Mr. Acquin "that we...

were to go to the Meriden Complex for the

interview." Mr. Acquin “asked why we were

going to Meriden," and Blais responded;

"That is where we were told to go.”

{7/13/78 Tr. p. 63] It is impossible to

imagine on what basis this court reached

its finding that Mr. Acquin “voluntarily

agreed to accompany the officers...to

Meriden," on the basis of such testimony

5¢

in the trial court. 187 Conn, 656.

B. This court found as a fact that

Mr. Acquin had been at the Beaudoin house

“from at least 7:30 to 10 p.m. on the pre-

vious evening, July 21." 187 Conn, at 657.

The court below made no such finding and

there is no such evidence. Indeed, Alden

Brooks himself (mentioned at page 658 of

the Court's opinion) had given a written

statement to the State Police at 8:40 A.M.

on July 22, 1977, stating that he was at

the Beaudoin house from approximately

9:00 P.M. until approximately 10:45 P.M.

and Mr. Acquin was not there at all during

that time, That statement was in evidence

before the trial court and was submitted

to this court as part of the appeal.

C. This court found as a fact

that “Acquin had recent scratches on his

face...." 187 Conn. at 657. The court

below made no such finding and this issue

is very much in dispute. At oral argu-

ment, defense counsel expressly argued to

this court that a viewing of the photo-

graphs taken of the defendant after he had

signed his confession would demonstrate

only minimal marks on his body and not the

sort of markings claimed by certain police

=< %

witnesses,

D. This court found as a fact

that "Acquin...had not mentioned it [being

mugged the previous evening] at all in his

oral statement to the police at approxi-

mately 9:30 a.m." 187 Conn, at 657-58.

The trial court made no such finding and,

in point of fact, the evidence at the

suppression hearing was to the contrary.

It was testified at the suppression hear-

ing that when Mr. Acquin entered the police

cruiser with Troopers Blais and Hamila,

the police asked him about the scratch on

his face, Mr. Acquin responded that he

had sustained the scratch in a fight the

previous night, when he had been jumped

and robbed. [7/24/78 Tr. pp. 17-18]

E. This court found as a fact

that Mr. Acquin was not in custody while

in the Meriden police headquarters and

that the defense had made no claim that he

was restrained there. 187 Conn. at 655-

56. Of course, the court below made no

such finding. As a matter of fact, more-

over, Lt. Shay himself testified at the

suppression hearing that when Mr. Acquin

was taken to Meriden he was "a very

serious suspect in this case" and that he

was undecided whether he would ever again

permit Mr. Acquin to leave police custody.

He testified that "a lot would depend on

what he said and how he acted.” [7/17/78

Tr. pp. 100-01, 7/6/78 Tr. pp. 15-16] It

was Shay who was in charge of the investi-

gation and, although this Court found that

the police agreed to take Mr. Acquin home

after the Meriden interrogation, the evi-

dence at the suppression hearing showed

that while Acquin was still in Meriden

Shay expressly ordered "that Acquin should

not be released” and further ordered

Trooper Zdanowicz to take him at once to

the State Police barracks at Bethany.

(7/6/78 Tr. pp. 58-59, 117, 112; 7/17/78

Tr. pp. 14-15, 99]

F. This court found as a fact that

Mr. Acquin had a reputation as a violent

person. 187 Conn. at 658. The trial

court made no such finding. Contrary to

this court's claim, that assertion cer-

tainly is not "uncontested" and in fact is

Genied. Mr. Acquin's police record was

made an exhibit at the suppression hearing,

was submitted to this court as part of the

appeal, and shows no crimes of violence

ever having been alleged against Mr. Acquin.

G. This court found as a fact that

Alden Brooks had "offered an acceptable

account of his own whereabouts" prior to

Mr. Acquin's arrest. 187 Conn. at 658.

The trial court made no such finding.

Although there was evidence below that

Brooks had given the police a statement

prior to 9:00 A.M., there was absolutely

no evidence that the police considered it

"an acceptable account...." On the con-

trary, Lt. Shay testified that he still

considered Brooks a suspect after that

time and many witnesses -- including

Brooks himself -- testified that in fact

his statement had been false. In fact, he

claimed to have been having sex with Mrs.

Beaudoin on her porch shortly before the

time at which she was murdered,

7. This court found as a fact that,

after Mr. Acquin had asked for an attorney

and had been further questioned, "McDonnell,

Hamila and Acquin drove to a restaurant

nearby, where they ate hamburgers in the

police cruiser.” 187 Conn. at 662. The

court below made no such finding, and Mr.

Acquin testified directly to the contrary.

He testified that he was afraid to eat any-

thing. "They might have put something in

the food or the drink." [9/5/79 Tr. p. 33]

8. This court found as a fact that

"(i]t is unquestioned that Acquin was read

the Miranda rights before any statement

was taken...." 187 Conn. at 669. Although

the court below found that Mr. Acquin was

read his Miranda rights during the morning

and once in the early afternoon, there is

no finding by the trial court that the

rights were read before the statement was

taken, On the contrary, the court below

expressly found that the rights were given

before the written confession but made no

finding as to whether they were given be-

fore the oral confession which preceeded

it. [Appendix to appellant's brief, p.

A-69.] As a matter of fact, there was

testimony that such rights were not read

at Bethany until after the oral confession

had been concluded,

9. At 187 Conn. pp. 663-65, 670-71

and 676, this court makes detailed find-

ings of fact concerning the events at the

Bethany state police barracks beginning

with the arrival of Dr. Joel Albert. The

court below mace none of these findings.

Moreover, in making the findings here,

10c

this court accepted as true portions of

the testimony of Dr. Albert and portions

of the testimony of Captain McDonnell,

disregarded conflicting portions of the

testimony of both witnesses, and chose not

to believe the directly contrary testimony

of the appellant concerning these very

events. As but one example, this court

found, 187 Conn. at 663: "Neither Acquin

nor Albert mentioned an attorney." Con-

trary to this court's finding, Mr. Acquin

testified in part as follows:

Q: And, tell us exactly what hap-

pened [when Dr. Albert arrived].

A: He came in and he was joking

and laughing with McDonnell. And,

he saw me. He straightened up. I

got up to shake his hand. I said,

'Hi, Doc, how are you doing.’ He

said, ‘All right.' I said, 'Can we

talk alone?' He turned around and

asked the Captain. The captain left.

Q: And, now, how excatly did he

greet you?

A: Placed his arm around me,

shook my hand.

Q: And, then he asked Captain

McDonnell if --

A: If he could be alone with me.

Q: What happened then?

A: We sat down and we talked.

Q: Tell us what was said.

A: I says, "Doctor Albert,' I

says, ‘these guys are trying to get

me for nine counts of murder. They

lle

won't let me see nobody, call no-

body. I want to give you my

attorney's number so you can call

him for me,'

Q: And what happened then?

A: He said no,

Q: He saic no?

A: Well, he said, 'I don't think

I can do that.’

Q: What was your reaction to that?

A: The bottom fell out.

Q: What do you mean by that?

A: I had nowhere to turn, nobody

to trust. I couldn't get in contact

with nobody. My own psychiatrist

turned on me,

Q: Did you come to any decision

at that point?

A: I might as well go along with

what anything they had to say.

(9/5/79 Tr. pp. 38-39]

10. This court held, 187 Conn, at 678:

"We cannot say that, on the basis of the

evidence before it, the trial court erred

in concluding that the defendant knowingly

and voluntarily waived his rights to

counsel and to remain silent. There is

simply no evidence that the circumstances

were such as to ‘overbear...[the accused's]

will to resist....'" (Emphasis supplied.)

This court's holding in that regard is

directly contrary to the facts clearly set

forth in the record and in the transcript

of the suppression hearing which this court

1l2c

so freely consulted in making the findings

of fact recited above and others. The

court below found: “Both sides used ex-

pert psychiatric testimony regarding the

defendant's mental ability to make a

voluntary confession at the suppression

hearing." [Appendix to appellant's brief,

p. A-80] Thomas Szasz, M.D., a psychia-

trist with an international reputation as

an expert witness in judicial proceedings,

testified on behalf of the appellant that

"Mr. Acquin's ability to give voluntary

consent was completely overwhelmed and

negated by the experiences to which he was

exposed prior to the confession and during

it." (7/26/78 Tr. p. 32] He elaborated

extensively upon that conclusion in his

testimony at the suppression hearing.

[Id., pp. 33-35, 43-44, 46-47, 56, 59-60,

65-66, 84, 86-89, 113, 124] Richard J.

Loewenstein, M.D., a member of the faculty

of the Yale Medical School and the Chief

Resident Psychiatrist at Yale-New Haven

Hospital [7/9/78 Tr. pp. 4-5], testified

as an expert defense witness at the sup-

pression hearing that "in the context

given, given the extremely stressful situa-

tion that Mr. Acquin was under, moving

l3c

about, questioning, repeated questioning,

statements being taken, further statements

being taken,... sitting with the police

throughout an entire day, being taken from

place to place, that this was a highly

stressful circumstance, that that is de-

monstrated by the statement of Captain

McDonnell and the conversation that is

recorded there, leading up to the request

for Dr. Albert end that given that context

of things, that the effect of Dr. Albert

was the final and culminating factor, which

led to the overwhelming of Mr. Acquin's

resistance to confessing and that because

of the manner in which it took place, it

could not be construed that the confession

took place voluntarily...." ([Id., p. 98]

Based upon an analysis of Dr. Albert's own

testimony in the context of his detailed

review of all the evidence at the suppres-

sion hearing, moreover, Dr. Loewenstein

further concluded: "Dr. Albert's behavior

and activities were such as to so over-

whelm Mr. Acquin that, in no way, could

the confession be construed as voluntary.”

{[Id., at p. 35] As the Fourth Circuit

noted in Ferguson v. Boyd, 566 F.2d 873,

877 (4th Cir. 1977): “It has long been

l4c

recognized that involuntary confessions

may be exacted as a result of mental

coercion as well as physical abuse." See

People v. Parks, 579 P.2d 76 (Colo. 1978);

Commonwealth v. Irvin, 341 A.2d 132 (Pa.

1975).

ll. This court is without power to

engage in fact-finding as it did in this

case. The opinion of the court depends

upon such fact-finding upon disputed mate-

rial evidence, and therefore the opinion

cannot stand if this court is to follow

the law it has itself articulated within

the last year.

12. Having chosen to engage in fact-

finding, this court cannot consistent with

due process of law find material facts

which are directly contrary to the evi-

dence presented to the court below. With

respect to the psychiatric testimony, as

with respect to many other aspects of its

opinion, this court did find material facts

directly contrary to the evidence present-

ed to the court below.

13. One of the ways in which this

court inaccurately characterized the evi-

dence was the essential but false factual

finding upon which the court based its

15¢

ruling that the challenge to the jury array

was properly overruled. This court found:

"The defendant presented no evidence what-

soever tc show that this underrepresenta-

tion was due to systematic exclusion of

the group. ...Therefore, he failed to

make the required prima facie showing, and

there was no error in the denial of his

motion.” 187 Conn, at 681. This court's

finding is totally contrary to the facts.

As was pointed out in the appellant's

brief, pp. 64-65, the appellant and the

state entered into a stipulation of facts

with respect to the challenge to the

array. [4/23/79 Tr. pp. 3, et seg.] It

was stipulated that all the members of the

jury array were categorized by the Judi-

cial Department by sex in official records.

{[Ibid.; Ex. 1 at Ch. to Array hearing.)

It was stipulated that the jury committees

from ail the towns in the Judicial District

submitted names to the Jury Commission for

inclusion on the jury array; that question-

naires were mailed to each of those persons

and were returned by them to the Jury Com-

mission; that the jury commissioners there-

upon selected the array upon the basis of

the information contained in the question-

l6c

naires, which included the sex of each

person responding. And it was stipulated

that the array consisted of 2,336 persons

selected individually in that manner.

{[Id., at pp. 5-6] Thus, a prima facie

case was made out by the appellant because

he proved without contradiction that (1)

women were underrepresented on the array

to a statistically significant degree; and

(2) the officials who selected the array

had an opportunity to discriminate. E.g.,

State v. Nims, 180 Conn. 589, 430 A.2d

1306 (1980); Casteneda v. Partida, 430

U.S. 482 (1977); Villafane v. Manson, 504

F.Supp. 78 (D.Conn.), aff'd 639 F.2d 770

(2d Cir. 1980).

14. For all these reasons, the opi-

nion of this court should be vacated and

this case should be set for re-argument.

THE DEFENDANT-

APPELLANT,

LORNE J. ACQUIN

JOHN R. WILLIAMS

His Attorney

7 ie

APPENDIX D

NO, 9891

STATE OF CONNECTICUT SUPREME COURT

vs. STATE OF CONNECTICUT

LORNE J. ACQUIN SEPTEMBER 22, 1982

ORDER

THE DEFENDANT'S MOTION TO REARGUE

HAVING BEEN PRESENTED TO THE COURT, IT IS

HEREBY ORDERED DENIED.

BY THE COURT,

Donald H. Dowling

CHIEF CLERK

APPENDIX E

MOTION TO SUPPRESS CONFESSION,

STATEMENTS AND ADMISSIONS

The defendant moves to suppress any

and all statements, confessions and/or

admissions made by him to any official of

the State of Connecticut or any of its

subdivisions, on July 22, 1977, or at any

time thereafter. The defendant ijurther

moves to suppress any and all direct and/

or indirect fruits of any such statement,

confession or admission. The defendant

further moves to suppress any and all

testimony concerning any of the foregoing.

In support of this motion the defendant

represents as follows:

1. All such statements are the

fatally-tainted fruit of his initial

arrest in this case. Such arrest was

made in violation of his rights under the

Fourth and Fourteenth Amendments to the

United States Constitution and under

Article I of the Connecticut Constitution

because it was made without probable cause

ana without a warrant,

2. Any and all such statements, con-

fessions and/or admissions were obtained

in the absence of any attorney.

3. At no time prior to making any

such statement, confession, and/or admis-

sion did the defendant knowingly, intelli-

gently or voluntarily waive his right to

remain silent or his right to the assist-

ance of counsel as provided by the Fifth,

Sixth and Fourteenth Amendments to the

United States Constitution,

4. Any and all such statements, con-

fessions and/or admissions were obtained

by State Police officers and/or other

public officials by the use of force,

coercion, intimidation and/or duress in

that the defendant was detained illegally

and without probable cause for many hours,

during all of such time the defendant was

denied access to any friend or any attor-

ney or any other person not involved in

this interrogation, defendant during such

time was transported against his will to

various locations throughout the State of

Connecticut and was thereby placed in

great fear and caused to become confused

and disoriented, the defendant was for

long period of time deprived of proper

sleep and nourishment, the defendant at

various times during his interrogation was

subject to physical force applied against

him by various police officers and was

subjected to searches of his body in vio-

lation of his rights under the Fourth and

Fourteenth Amendments to the United States

Constitution, the defendant's psychiatrist

(a State employee) was utilized by the

police to bring further pressure to bear

upon the defendant to make such statements,

the defendant was told by police officials

that he would not be permitted to leave

police custody until he made the state-

ments desired by the police, the defendant

was threatened verbally with physical vio-

lence if he did not confess, the defendant

was promised immediate release if he did

confess, and other methods of coercion

were also brought to bear upon the defend-

ant by the said State officials.

5. At the time he made said state-

ments, confessions and/or admissions, the

defendant was not of sound mind,

6. All such statements, confessions

and admissions were obtained from the de-

fendant in violation of his rights under

the Pourth, Fifth, Sixth and Fourteenth

Amendments to the United States Constitu-

tion and under Article I of the Connecti-

cut Constitution,

THE DEFENDANT

BY JOHN R. WILLIAMS

His Attorney

Filed September 21, 1977

ORDER

The foregoing motion having been

heard, it is hereby ORDERED: DENIED.

THE COURT

March 2, 1979 Wall, J.

APPENDIX F

MEMORANDUM ON DEFENDANT'S

MOTION TO SUPPRESS CONFESSION,

STATEMENTS AND ADMISSIONS

In the early morning hours of July

22, 1977, the police found nine bodies in

the burnt out house of Frederick and

Cheryl Beaudoin on Cedar Hill Drive in

Prospect, Connecticut. The dead bodies

were those of Mrs. Beaudoin, her seven

children and an overnight guest, Jennifer

Santoro. All the children had been beaten,

Mrs. Beaudoin had been stabbed and some of

the children were tied up with various

bindings.

At approximately 9:30 a.m. on that

same day the police went to 4 Glenridge

Street in Waterbury, Connecticut, where

the defendant, Lorne Acquin, was living

with his girlfriend, Joyce Graham. The

police asked the defendant to accompany

them to the Meriden State Police Complex

for questioning. After the defendant

arrived at Meriden headquarters he was

read a standard form Miranda card which he

refused to initial. The police took a

written statement from the defendant as to

his whereabouts on the night of July 21,

1977, which the defendant refused to sign.

The defendant also refused to take a poly-

graph test.

At about 1:30 p.m., the defendant

left Meriden with the police to go home

to Waterbury. One police officer was

dropped off at the State Police Command

Post at the Prospect Town Hall, and the

police cruiser continued along Route 69

toward Waterbury. While they were driving

an order came over the police radio to

bring the defendant to Bethany Troop l.

The defendant stated that he didn't want

to go and while the cruiser was still

moving, he opened the car door. The de-

fendant got out of the car and started

walking on Route 69 toward Waterbury.

Other police came to the scene and the

defendant was brought back to the police

car and then to the Prospect Command Post.

The defendant was again advised of

his Miranda rights after he arrived at

Prospect and again he refused to sign the

card. He was questioned as to his acti-

vities for the previous three days and a

second written statement was prepared. At

approximately 5:45 p.m., the defendant, in

the midst of the interrogation, asked to

see a lawyer. The police captain who was

with the defendant at the time asked him

who he wanted and whether he had anyone in

particular in mind. The defendant said

that there wasn't an attorney that he want-

ed or trusted. Instead the defendant re-

quested that he be allowed to see a Dr.

Joel Albert, who was a state psychiatrist.

The defendant was brought by the

police to the Troop I State Police Bar-

racks at Bethany, at his request, to

await the arrival of Dr. Albert. The de-

fendant was read his Miranda rights

shortly after he arrived at the barracks.

Dr. Albert arrived at Bethany at about

11:45 p.m. and went to see the defendant.

Soon after, the defendant, in the pre-

sence of Dr. Albert and the police, gave

an oral confession. Before a written

statement was taken the defendant was

again read his Miranda rights, which he

refused to sign, After the confession was

typed up, the defendant signed it and

initialed each page. The defendant also

signed some consent forms.

After giving this written confession

the defendant was arrested on nine counts

of murder and arson.

In a motion filed with this court on

September 21, 1977, the defendant moves

to suppress any and all statements, con-

fessions and/or admissions made by him to

any official of the State of Connecticut

or any of its subdivisions, on July 22,

1977, or at any time thereafter. The de-

fendant maintains three separate grounds

for his motion: (1) defendant's confes-

sion was fatally tainted by his unconsti-

tutional detention, (2) defendant did not

waive his fifth and sixth amendment rights

to remain silent and to have the assist-

ance of counsel, and (3) defendant's con-

fession was not voluntary. Each issue

will be addressed in turn,

The defendant contends in part II of

his brief that he was arrested during the

morning of July 22, 1977, that the arrest

was without a warrant and without probable

cause, It should be mentioned that the

defendant was not formally arrested until

after he made the confession, when he had

been in custody approximately twenty

hours.

The defendant claims that the time of

the warrantless arrest was around 9:30 a.

m, on the morning of July 22, when he was

picked up for questioning at his house in

Waterbury. The defendant states that

probable cause for the arrest must be

determined as of that time, and that the

objective facts fail to establish prob-

able cause. Assuming the detention was

illegal, any statements or confessions

obtained after such detention should be

excluded, citing Wong Sun v. United

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

9 L.Ed.2d 441.

However, Wong Sun does not stand for

the proposition that any confession made

in the course of, or following, an illegal

detention, whether or not preceded by, or

incidental to, an illegal arrest, is per

se inadmissible as a matter of law. State

v. Traub, 151 Conn, 246, 249. Even assum-

ing the detention in this case was illegal,

a confession made during such detention

can be admitted if the state proves that

(1) the confession was truly voluntary and

(2) the confession was not caused or

brought about by, or the fruit of, the

illegal detention. State v. Traub, supra,

250. The question of whether a confes-

sion is the product of a free will under

Wong Sun must be answered on the facts of

each case. No single fact is dispositive.

Brown v. Illinois, 442 U.S. 590, 603

(1975), 95 S.Ct. 2254, 45 L.Ed.2d 416. In

Brown the court states (pp. 603-604) that

the factors to be considered in determin-

ing whether the confession is obtained as

a result of an illegal arrest include:

(1) Miranda warnings, (2) temporal proxi-

mity of the arrest and the confession, (3)

presence of intervening circumstances, and

(4) purpose and flagrancy of the official

misconduct,

Assuming for the purposes of argument

that the detention of the defendant was

illegal, an examination of the facts shows

that the defendant's detention was not an

operative factor in bringing about the

confession. As to the first factor, the

defendant was given numerous Miranda warn-

ings while he was in police custody. The

first warnings were given after the de-

7£

fendant arrived at the Meriden State

Police Complex, at approximately 10:30

A.M. on June [sic] 22, 1977. As to the

second factor of temporal proximity of

the arrest and the confession, assuming

that the arrest took place when the de-

fendant was first picked up, almost four-

teen hours separated the arrest and the

confession, The cases cited in defendant's

brief, where courts relied on Wong Sun to

exclude confessions made after extended

periods of detention, involved detentions

which ranged from twenty-nine to sixty-

eight hours before the confession. (De-

fendant's brief, p. 126.) Concerning the

third and fourth factors there was no

official nisconduct during the defendant's

detention. No force was used upon him

nor were any threats, promises or offers

made to him. The defendant was not abused

physically or mentally. He was not physi-

cally restrained in any way.

Assuming the detention was illegal

and without probable cause, there was no

evidence submitted that such detention was

an operative factor in causing or bringing

about the confession.

Iit

The second issue which defendant

raises in his motion to suppress is that

he did not waive his fifth and sixth amend-

ment rights to remain silent and to have

the assistance of counsel during police

interrogation. It is not disputed that

the defendant received several Miranda

warnings while he was with the police at

Meriden, Prospect, and Bethany and before

he gave his written confession. The

question is whether the defendant waived

his Miranda rights when he gave his con-

fession.

Miranda deals with the admissibility

of statements obtained from a person who

is under custodial police interrogation

and the necessity for procedural safe-

guards to prevent a person from incrimi-

nating himself. Miranda v. Arizona, 384

U.S. 436, 439 (1966), 86 S.Ct. 1602, 16

L.Ed.2d 694. Custodial interrogation, for

Miranda purposes, means “questioning ini-

tiated by law enforcement officers after a

person has been taken into custody or

otherwise deprived of his freedom of ac-

tion in any significant way." (p. 444)

Miranda is quite explicit about the proce-

dural safeguards to be employed during

such custodial interrogation:

"He must be warned prior to any

questioning that he 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

questicning if he so desires.

Opportunity to exercise these

rights must be afforded to him

throughout the interrogation.

After such warnings have been

given, and such opportunity

afforded him, the individual may

knowingly and intelligently waive

these rights and agree to answer

questions or make a statement.

But unless and until such warn-

ings and waiver are demonstrated

by the proseuction at trial, no

evidence obtained as a result of

interrogation can be used against

him." (p. 479)

10f

The defendant conceded in his brief

that the police read him his Miranda

rights at least five times before he gave

his written confession. (Defendant's

brief, p. 138.) The Miranda requirement

that the defendant be given a full and

effective warning of his rights at the

outset of the interrogation process ap-

pears to be satisfied.

The next question is whether the de-

fendant “voluntarily, knowingly and in-

telligently” waived his rights. The state

has a “heavy burden” of demonstrating that

the suspect's constitutional rights have

been respected, State v. Darwin, 29 Conn,

Sup. 423, 432. Waiver has been defined

as “an intentional). relinquishment or

abandonment of a known right or privi-

lege." Johnson v. Zerbat [sic], 304 U.S.

458, 464 (1938), 58 S.Ct. 1019, 1023, 82

L.Ed, 1461, 1466. This standard is ap-

plied to an in-custody interrogation.

Miranda, supra, 475.

The defendant asserts that because

he refused to initial the Miranda warning

cards, he could not waive his rights to

remain silent and to huve counsel. How-

1lf

ever, defendant's refusal to sign an ac-

knowledgment of the Miranda warnings given

to him does not preclude finding an ef-

fective waiver of his rights. United

States v. McNeil, 433 F.2d 1109, 1113

(1969).

The defendant correctly points out

that his reques*: at 5:45 p.m. on July 22,

1977, to see an attorney is particularly

significant under the case law (defend-

ant's brief, p. 134) for under Miranda,

"{ilf the individual states that he wants

an attorney, the interrogation must cease

until an attorney is present.” (p. 474)

We must look closely at the facts as

brought out at the hearing on this motion

to suppress to determine whether the de-

fendant waived his right to counsel. At

approximately 5:45 p.m., when the defend-

ant was at the Prospect Command Post,

Trooper Hamila who had been with the de-

fendant, came out of the storage room to

speak to Captain McDonnell. The testimony

of Captain McDonnell follows:

"Q Do u recall at somewhere around

six o'cl Trooper Hamila coming out of

the storage room to you?

A Yes.

1i2f

Q You recail where--what it is he

said to you?

A Yes. He came over to me. I was

out on the larger--larger room and then

he said that Acquin has asked to--asked

for an attorney.

Q What did you say to Hamila?

A I told Hamila to go ahead and

eat, that I would go in and talk with

Lorne Acquin,

Q What, if anything, did Hamila do?

A I am not-- I don't know of my own

knowledge what he did. He left. I went

in the room. And, he--

Q He left?

A He left my presence. So--I know

he was hungry and he was talking about

eating for quite a few hours. So, that

is the reason I told him to go eat.

Q Did he mention anything to

Acquin about eating in your presence

during that afternoon?

A Yes, on at least two or more

occasions while I was in the room

Trooper Hamila asked Lorne Acquin if

he wanted anything to eat. And, Acquin

said: no, he didn't, he didn't want to

eat.

Q All right. Now, it was in the

vicinity of six o'clock when you talked

to Trooper Hamila regarding this lawyer;

is that right?

13f

A That's right.

Q And, he left. What did you do?

A I went in the room with Lorne

Acquin and shut the door. And, it was

just he and I in the room at that time.

Q When you entered the room was

there anybody else there besides

Acquin?

A No,

Q What, if anything, did you say

to Acquin?

A I told him that: Trooper Hamila

told me that you want an attorney.

Q What did he say?

A He said: yes, he did.

Q And, then what did you say?

A I asked him who he wanted. And,

there were very long pauses before he

would respond to my questions. And,

then he said he didn't know; asked him:

did he have anyone in particular in

mind, He said no. I asked him: how

about the attorney that you had the

last time. And, he told me that he

didn't trust that attorney and he

didn't want him. I asked him--told him

that: was there anybody else, another

attorney. He said no, there wasn't

another attorney that he wanted or

trusted, I asked-- Then I told him:

if he couldn't pick an attorney that I

14f

would make calls and get a public de-

fender or the state would provide an

attorney for him. And, he replied to

that that he didn't want the attorney

that we--that I would call. He said:

it would be just like talking to

another cop. He didn't want any

attorney that we choose, I then asked

him about his family. I told him: I

was pretty sure that his brother was

in the building someplace, although I

hadn't seen his brother, could his

brother get an attorney for him.

Q What did he say?

A He said no. He didn't want his

brother to get involved. He didn't want

his brother to even know he was in the

building or he didn't want his brother

to know that he was involved here in

the building with us.

Q Then what happened?

A Then we continued to talk about

how would we find him an attorney, how

would we get an attorney for him. And,

he said that he--it wasn't really an

attorney that he wanted, it was just

somebody that he could trust. He want-

ed to sit and have somebody sitting

with us that he trusted before he had

any further conversation. And I asked

him who that, you know--is there such

a person, who can we get for you. And,

he suggested a Dr. Albert, who I was

not familiar with and didn't know who

he was. And, I asked who he was and

how he knew him. And, he told me that

he knew him from the New Haven Jail and

15f

he thought he was employed at the New

Haven Jail.

About that time I went out to

Lieutenant Shay and I told Lieutenant

Shay that he wanted a Dr. Albert and

to gét a hold of Dr. Albert and have

him come to the command center where

we were,

Q Did you ask Acquin whether or

not Dr. Albert was a lawyer?

A Yes, I did. And, he said that

he knew he was a-- I think he was re-

ferring to him by a slang expression.

He was calling him either a shrink or

a head doctor or something like that,

but wasn't sure whether or not he was

an attorney. And, I told him that,

you know, that Dr. Albert couldn't

play the part of an attorney if, in

fact, he wasn't an attorney. And,

Acquin just kept saying that he wasn't

really concerned about that, what he

- wanted was somebody to sit in that he

could trust and be with him,

Q Did he say he trust Dr. Albert?

A He said he trusted a Dr. Albert

very, very much, In fact, he said that,

while this conversation was going on,

that he had told me and Dr. Albert

some things that we were the only two

he had ever told, he hadn't even told

some of his family members.

Q And, how long did this conversa-

tion go on?

16f

A Well, from the time I went in

the room until I came out and told

Shay-- I would say from a half to

three quarters of an hour or so."

Later in his testimony Captain

McDonnell stated that from the time he had

the conversation with the defendant re-

garding a lawyer and the time Dr. Albert

arrived at Bethany Barracks at approxi-

mately 11:40 p.m., he had had no conver-

sation with the defendant regarding the

deaths in Prospect. After Dr. Albert

arrived the defendant wanted the police to

ask him questions and then he gave a de-

tailed confession,

Once the defendant indicated a desire

to obtain counsel, the police correctly

stopped their interrogation concerning

the deaths. However, the defendant's re-

quest for counsel was indecisive and under

the circumstances Captain McDonnell was

correct in making an inquiry into whether

the suspect did or did not want counsel

present. Nash v. Estelle, 530 F.2d 652,

658 (Sth Cir. 1977). (Rehearing en banc

same Decision 6/21/79.) The suspect's

wishes can be explored to determine

exactly what he wants. Nash, supra, 656.

17£

The Miranda court cited Federal Bureau of

Investigation (FBI) practice as consistent

with Miranda procedure:

"When the person who has been

warned of his right to counsel

decides that he wishes to consult

with counsel before making a

statement, the interview is ter-

minated at that point, Shultz v.

U.S., 351 F.2d 287 (1965). It may

be continued, however, as to all

matters other than the person's own

guilt or innocence. If he is in-

decisive in his request for counsel,

there may be some question on wheth-

er he did or did not waive counsel.

Situations of this kind must neces-

sarily be left to the judgment of

the interviewing Agent." (p. 485)

Based upon the evidence presented at

the hearing on the motion to suppress, the

court is convinced that the state has met

its burden of showing that the defendant

"knowingly and intelligently” waived his

right to counsel. Although the defendant

had an opportunity to retain counsel, he

opted instead for the presence of Dr.

18f

Albert, “somebody that he could trust."

The police told the defendant that the

state would provide an attorney for him

and that the police would call any attor-

ney that he wanted, The police also

asked the defendant whether he wanted his

brother to get an attorney for him, The

defendant said that it wasn't really an

attorney that he wanted, just somebody

that he could trust to be with him before

he had any further conversation. It was

the defendant, not the police, who sug-

gested that Dr. Albert be brought to the

barracks,

In a very similar case, Cobbs v.

Robinson, 528 F.2d 1331 (2d Cir. 1975),

the Second Circuit upheld the decision of

the Connecticut Supreme Court in State v.

Cobbs, 164 Conn, 402. In Cobbs, after

the defendant indicated that he should

call an attorney, he was given free use of

a telephone and no attempt was made to

interrogate him, The defendant made

several calls including one to his grand-

mother, When the grandmother arrived at

the police station, the defendant spoke

with her and then made a full statement

19f

to the police. (pp. 419-420) The court

concluded that “an accused who requests

counsel may thereafter voluntarily waive

his right to counsel provided he has had

in the interim a full opportunity to ob-

tain counsel or to have an attorney ap-

pointed for him. The police may conduct

an interrogation when such a knowing, in-

telligent and voluntary election to pro-

ceed without an attorney has been mani-

fested by the defendant.” (p. 420) The

defendant in Cobbs made it clear through

his words and actions and failure to make

further mention of counsel that he had

abandoned any intention of getting or

consulting an attorney.

Likewise, in the present case, the

defendant was provided a full opportunity

to obtain counsel or to have counsel ap-

pointed for him. Instead he requested

that he be able to see his psychiatrist,

Dr. Albert. After speaking to his psy-

chiatrist the defendant voluntarily waived

his request for counsel. He also at no

time expressed a desire to remain silent.

It is an inescapable conclusion that Lorne

Acquin knowingly and intelligently waived

his fifth and sixth amendment rights to

20f

remain silent and to have counsel during

the interrogation.

The third issue which the defendant

raises in his motion to suppress is that

defendant's confession was not voluntarily

and therefore is excludable.

First, it should be mentioned that

the state has the burden of proving by a

fair preponderance of the evidence that

the defendant's confession was voluntary.

The Connecticut Supreme Court in the recent

case of State v. Staples, Conn. (40

Conn. L.J., No. 2, p. 19) (1978) held that

"a trial court should follow the prepon-

derance of the evidence standard and not

the reasonable doubt standard in determin-

ing whether or not the state has sustained

its burden of proving voluntariness when a

confession of a... defendant is offered

into evidence.” (p. 21)

Both sides used expert psychiatric

testimony regarding the defendant's mental

ability to make a voluntary confession at

the suppression hearing. This is consist-

ent with the case of People v. Parks, 579

21f

P.2d 76 (Colo. 1978), where the court held

that expert psychiatric testimony regard-

ing the defendant's mental ability to make

free and intelligent decisions at the time

of his or her arrest is generally rele-

vant to the issues before the court. The

expert testimony offered by the state at

the suppression hearing is supportive of

the conclusion by the court that the de-

fendant's confession was voluntary.

The Staples case is helpful in elu-

cidating the factors which determine

voluntariness:

"The circumstances which enter

into such a determination are

many. The facts in each case

must be closely scrutinized.

Gallegos v. State of Colorado,

370 U.S. 49, 52, 82 S.Ct. 1209,

8 L.Ed.2d 325. ‘(T]he test of

voluntariness is whether an

examination of all the circum-

stances discloses that the con-

duct of ‘law enforcement offi-

cials was such as to overbear

[the defendant's] will to re-

sist and bring about confes-

22f

sions, not freely self-deter-

mined, . ..' Rogers v. Rich-

mond, 365 U.S. 534, 544, [81 S.

Ct. 735, 5 L.Ed.2d 760] (1961)

» « « «' ‘Put another way, the

confession must be the product

of an essentially free and un-

constrained choice by the maker.'

State v. Devine, 149 Conn. 640,

653, 183 A.2d 612, citing

Culombe v. Connecticut, 367 U.S.

568, 602, 81 S.Ct. 1860, 6 L.Ed.

2d 1037."

It is the opinion of the court that

the evidence at the hearing on the motion

to suppress showed that the defendant's

confession was spontaneous and voluntary.

No physical force of threats were used on

the defendant nor were any promises made,

He was not physically restrained in any

way. There were not more than three

policemen with the defendant at any one

time. The defendant was not denied any

requests for food or drink. He was not

under the influence of alcohol or drugs.

He signed the written confession and

initialed each page.

23f

The state has sustained its burden

of proving that defendant's confession was

voluntary by a fair preponderance of the

evidence, The conduct of the police offi-

cers in this case was not such as to

"overbear the defendant's will to resist."

The confession was the product of an

essentially free and unconstrained choice

by the defendant.

For the foregoing reasons, the de-

fendant's motion to suppress confession,

statements and admissions is hereby denied.

WALL, J.

March 2, 1979

APPENDIX G

PORTIONS OF TRANSCRIPT OF TAPE

RECORDED INTERROGATION OF LORNE

ACQUIN BY TROOPERS BLAIS, HAMILA

AND ZDANOWICZ AT CONNECTICUT

STATE POLICE HEADQUARTERS,

MERIDEN, JULY 22, 1977, BEGINNING

APPROXIMATELY 10:30 A.M.

(Suppression Hearing Exhibit A-l, supple-

mented by Suppression Hearing testimony of

Troopers Hamila and Zdanowicz.)

(Inaudible)

BLAIS:

ACQUIN:

BLAIS:

Listen I mean they're gonna replace

me so that I can go to the hospital

with my wife. All Lt. Shay wants

is simply a breakdown in communi-

cations as to your coming here.

Its just, ah, you tell us what you

did with the family last night and

how, ah, all their actions and what

time, who was at the house when you

ieft.

Yeah, what time? [9/11/78 Tr.,

Hamila, p. 18]

There may be a problem with iden-

tification as to who was in the

house because of the...burning you

know. So we'd like a statement

from you as to the facts and cir-

cumstances,

(Inaudible)

BLAIS:

No not completely it's (inaudible),

we don't know how bad the bodies

are maybe some are worse than

others I don't know.

ACQUIN: (Inaudible) suffer (inaudible).

{[Id. p. 19]

BLAIS: No, they didn't tell me,

UM: (Inaudible)

BLAIS: Yeah.

(Inaudible)

BLAIS: Now what we should do is, um, is

to talk over the whole thing first

and then, ah, it'll be like a

statement from you to the best of

your knowledge as to who they were

and what occurred, alright?

George, you want to take a state-

ment because I'm gonna leave 4s

soon as the replacement....

HAMILA: (Inaudible) Well how many, like

down here?

BLAIS: (Inaudible)

HAMILA: You don't know who they're sending

up?

BLAIS: No. They didn't tell me,

HAMILA: (Inaudible)

BLAIS: I have no idea,

HAMILA: Who did you talk to?

BLAIS: Lt. Shay. Um, ... statement paper

here,

ACQUIN: Well I'm not sure....

BLAIS: Well, let's start from the begin-

ning, um, as everything you can

tell us. Did you work yesterday?

ACQUIN: No,

BLAIS: ... find some statement paper.

(Telephone rings.) [Id. p. 21]

BLAIS: I can't find any statement paper.

ACQUIN: (Inaudible)

BLAIS: Pardon?

ACQUIN: (Inaudible) Do you know where...

is?

BLAIS: No, he left,

BLAIS:

HAMILA:

BLAIS:

ACQUIN:

BLAIS:

ACQUIN:

BLAIS:

ACQUIN:

Okay, just wnat to get you out of

here as soon as possible so we'll

start. Do you realize that any

time you talk to anybody you have

to read them their rights. Just

you know, I'm sure you've been

through this before, we just have

to read you the rights, alright?

The Constitution requires that I

inform you of your rights. You

have the right to remain silent,

If you talk to any police officer

anything you say can, will be used

against you in court. You have a

right to consult with a lawyer

before you are questioned and may

have him with you during question-

ing. If you cannot afford a

lawyer one will be appointed...

questioning. If you wish to ans-

wer questions you have the right

to stop answering at any time.

You may stop answering questions

at any time you wish to talk to a

lawyer and may have him with you

during any further questioning.

What's the date today, the 22nd?

7-22-77, 1045,

Just want to put your initials on

this please,

What's all this...?

It's just acknowledging that I

read those rights to you,

It says you are going to take me

to court. [Id. p. 22]

No, no, no, no. I'm not taking

this into court, It doesn't say

that, I didn't say that to you.

It says here that anything I say

3 be used against me. ([Id. p.

ACQUIN:

BLAIS:

ACQUIN:

BLAIS:

ACQUIN:

BLAIS:

ACQUIN:

BLAIS:

ACQUIN:

No, .... See we have to tell this.

We don't know what you're gonna

tell us. See we have to tell, we

have to advise you of your Consti-

tutional rights.

For what? [Id. p. 23]

Because of the importance..., no.

(Inaudible)

Because we're interviewing you.

We're just interviewing you. See,

I won't be talking to anybody. We

have to advise you of your rights.

[Id. pp. 24-25]

(Inaudible)

You've never been advised of your

rights before?

Only when I was arrested.

p. 25]

You're not arrested,

(Inaudible)

Lt. Shay told me to talk to him and

find out if he can shed any light

on, help us by telling us what

happened yesterday. Tell us about

the family. Anybody that disliked

them or anything. What might have

caused the fire?

(Inaudible)

You don't want to sign it?

No, I don't want to sign it.

(Id.

{Id.

p. 26]

Alright.

(Inaudible)

(Inaudible) I'm being very honest

with you. That's why I'm advising

you of your rights. (Inaudible)

(Inaudible) It sounds to me like

I'm being arrested. [Id. p. 27]

No, we're not arresting you.

(Inaudible)

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ :

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN;

ZDANOWICZ :

You were jumped from the rear,

right?

(Inaudible)

What happened?

(Inaudible) Choke hold...I got

out of it....Kicked in the

side.... {Id,. Pp. 26-27]

Okay, ah, about that time some-

body kicked you in the side,

right?

(Inaudible) The other side of

the gas station. (Inaudible)

Okay, now you've already told

us that, Lorne. You got out

of the hold and at that time

somebody kicked me in the side

and I went down, right? Did

you hit the pavement, did you

hit the dirt...?

I hit the ground....

Where are you hurt?

27)

(Inaudible)

Your right arm?

(Inaudible)

What's that mark inside? No,

no, inside your arm looks like

black and blue.

(Inaudible)

How did you get the bruises

all over your eye?

This one here?

Yeah,

I got it..., (inaudible).

Yeah, but those over your

right eye and your eye lid

actually, would you call it an

eye lid or an eyebrow?

Eye CS ae

You said you got some on the

other side...?

(Id. p.

ACQUIN: (Inaudible)

ZDANOWICZ: Okay, what did you lose in the

place?

ACQUIN: Wallet.

ZDANOWICZ: What else?

ACQUIN: I'm pretty sure the registra-

tion to the car. I'm not sure.

I looked for it, I couldn't

find it. [Id. p. 28]

ZDANOWICZ: Well before I do that, were

you hurt at all other than

that, did you get a bruise on

your other side? ([Ibid.]

ACQUIN: No.

ZDANOWICZ: Can I see?

(Inaudible)

ZDANOWICZ: Stani up. (Inaudible) Busted

rib and never know it.... [Id.

p. 29]

ACQUIN: No.

ZDANOWICZ: Let's cake a look. Over here,

Yeah, turn around,

(Inaudible)

ZDANOWICZ: You sure you're alright?

ACQUIN: Oh yeah,

ZDANOWICZ: There's no shortness of

breath? Wo pain in your side?

ZDANOWICZ: Did you report this to the

police?

ACQUIN: No.

ZDANOWICZ: Why not? Did you tell anybody

about it?

ACQUIN: I told my old lady. {[Id. pp.

29-30]

ZDANOWICZ: What time?

ACQUIN: (Inaudible)

ZDANOWICZ: Did she say to tell the police?

ACQUIN: I told her to ... got to work

.ee. (inaudible) [Id. pp. 29-

30]

ZDANOWICZ :

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ :

ACQUIN:

ZDANOWICZ :

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOW: “Z:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

And what time was that?

«+. gO to work at six o'clock.

Quarter after six. [Id. pp.

31-32] (Inaudible)

So on the way to the diner you

told her to notify the police?

Before then I told her (inand-

ible) ~

Are these the clothes you were

wearing when you were (inaud-

ible)?

(Inaudible)

What were you wearing when you

were assaulted?

I had my good jeans on and,

um, white T-shirt (inaudible)

{Id. p. 33]

That's an easy mark with a

white T-shirt....

(Inaudible)

White T-shirt....

(Inaudible)

Okay, you were wearing a white

T-shirt, what kind of pants?

They're like these but they're

a little more dressier.

They've got patches on them,

Were they.,.? I mean...?

No, (Inaudible).

What were you wearing for

footwear?

My brother's army boots.

Steve's?

No, Pat's,

What were you wearing them for

on a hot day like that? /[Id.

(Inaudible)

ZDANOWICZ: That's it -- no sweater, no

belt, no...?

ACQUIN: The belt I had....

ZDANOWICZ: Where is the belt now?

ACQUIN: (Inaudible)

ZDANOWICZ: Okay, here...were you wearing

socks by the way?

ACQUIN: (Inaudible)

ZDANOWICZ: Did you change socks?

ACQUIN: No, they didn't smell. ([Id.

ZDANOWICZ: Okay, ... don't you sweat?

ACQUIN: (Inaudible)

ZDANOWICZ: Okay, the kid that ripped you

off, how many were there.

ACQUIN: I'd say about three, [Id. p.

36]

ZDANOWICZ: Three?

ACQUIN: I seen about three. Maybe one

I know. (Inaudible)

ZDANOWICZ: Okay, you may...right?

ACQUIN: (Inaudible)

(Inaudible)

ZDANOWICZ: How come you know? (Inaudible)

ACQUIN: . (Inaudible)

ZDANOWICZ: Did you chase them or were you

hurt?

ACQUIN: By the time I got up, they were

gone, [Id. p. 37]

ZDANOWICZ: Oh. (Inaudible)

ACQUIN: (inaudible)

ZDANOWICZ: I can't see anybody ripping

you off, Chief, believe me,

{Id. p. 37]

ACQUIN: (Inaudible)

ZDANOWICZ: What's that?

ACQUIN: (Inaudible)

(Inaudible)

ZDANOWICZ :

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ :

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ :

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

HAMILA:

ZDANOWICZ :

What time did you get home,

Lorne?

(Inaudible)

One-thirty, two o'clock?

About that....

Your brother Steve and Joyce

were in the house at the time?

[Id. pp. 37-38]

Not Steve...another guy Steve,

And what's his last name?

(Inaudible) He's with, with

Anna down at whatchacallit.

Is what?

With Anna down at Mickey's.

Yeah. (Inaudible)

He asked me if he could stay

over; I said sure,

(inaudible)

(Inaudible)

Well we dropped Steve off

(inaudible).

(Inaudible)

Well where do you meet your

boss?

..-right up from Bill's Cafe,

the diner right there...the

package store there,.... [Id.

pp. 38-39]

You can't read, can you, Chief?

{Id. p. 39]

A little.

You don't want to read all

that,

Well I read fast, I read slow,

I read good (inaudible). We'll

go right through it so you'll

understand, alright? I don't

want to make any mistakes...if

I make a mistake or error in

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ :

ACQUIN:

ZDANOWICZ:

ACQUIN;:

ZDANOWICZ:

10g

this statement...alright?

(Inaudible)...or delete it or

add to it...I want you....[Id.

p. 40)

(Inaudible) You want me....

(Inaudible)

(Inaudible) Those are your

rights. This is.... [Ibid.]

(Inaudible)

Well it's a usual police proce-

dure that when we take to some-

body during the course of an

investigation it is their

routine practice by the police-

man to inform people of their

Constitutional Rights...answer-

ing questions, giving state-

ments, you could have an

attorney, you're familiar...?

I ain't signing it. [Id. p.

41)

Well I'm not gonna make you

sign it if that's what you

think....{Id. p. 42]

(Inaudible)

Now this is strictly on your

own volition.

(Inaudible)

Alright? Want to read this

all over again?

(Inaudible)

They were read to you?

(Inaudible)

They were read to you?

(Inaudible)

And you don't want to sign it

now, do you?

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

llg

No, because I don't agree with

what it says. I don't like

what it says.

What does it say?

It says, anything I say can

be used against me in a court

of law. What are you going to

court for?

No..., well are you familiar

with the system at all, the

judicial system which you must

be because you've been there

so many times?

(Inaudible)

You've been there when they

arraign you and the judge

arraigns.... (Id. p. 42]

YOS, woes

Yeah, well the courts also...

talk to people they always...

have to read people their

rights in a situation. That

they could add information or

be accused of or whatever the

situation may be. Sob law

we are required to inform a

subject of his rights and this

is what we're doing. In other

words for them, they say they

sat here and chatted with you

and they warned you of your

rights and they gave you this

blue card which has all your

rights. If you wish to sign

it you can but don't if you

don't have to. And be ee | do

prepare you of your rights

because they have to by law.

(Inaudible) I'm not giving

any...statement today, I want

you to fully understand what

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

ACQUIN:

ZDANOWICZ:

12g

the situation is.

I understand,

You understand?

I understand.

And you...?

(Inaudible)

Okay, that's your prerogative

and I'm not going to try to

change it.

Right.

Okay, so I borne Acquin, age

27 of 4 Glenwood Street, Water-

bury, Connecticut, make the

following truthful statement

without fear, threat or pro-

mise....

(Inaudible)

What?

Glenridge.

Glenridge. Knowing that it

can be used against me, (inau-

dible) right?

(Inaudible)

You want that out?

Yeah, you want me to cross that

out?

(Inaudible)

This is a preamble....

(At this point the tape ended.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.