# Appendix — Acquin v. Connecticut

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 463 U.S. 1229

## Text

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

APPENDIX

APPENDIX

APPENDIX

APPENDIX

APPENDIX

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

la
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).

2a

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.

3a

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).

4a

A
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

5a
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

6a
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).

1
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).

7a

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,...?

8a
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?

9a
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.

2
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.

B
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
6

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.
1
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

2
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

12

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.

3
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
It
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.

lb
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

2b
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-

3b
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

le

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-

2c
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

3c
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

4c
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

=< %

6c

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

7c

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.

8c

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

9c
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

BY
JOHN R. WILLIAMS
His Attorney

7 ie

ld
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

le
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

2e
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

3e
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

4e
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.

lf
APPENDIX F

MEMORANDUM ON DEFENDANT'S
MOTION TO SUPPRESS CONFESSION,
STATEMENTS AND ADMISSIONS

I

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

2f

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

3f

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.

4f

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,

II

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

5f
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

6f
(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.

sf

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)

9f

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.

IV

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

lg
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.

2g

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:

3g

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:

4g

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)

(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 :

5g

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.

6g

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:

7g

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)

(Inaudible)

(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)

8g

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 :

9g

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)

(Inaudible)

Well we dropped Steve off
(inaudible).

(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)

(Inaudible)

(Inaudible)

They were read to you?
(Inaudible)

They were read to you?

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1238%3A2. Public record. Not legal advice.