Petition for Writ of Certiorari — Damon v. Connecticut

99-1938”

a No.

In The

Supreme Court of the United States

October Term, 1989

>

KENNETH DAMON,

Petitioner,

vs.

STATE OF CONNECTICUT,

Respondent.

+

On Petition For A Writ Of Certiorari

To The Supreme Court Of Connecticut

y

4

PETITION FOR A WRIT OF CERTIORARI

*

JOHN R. WILLIAMS

WILLIAMS AND WIsE

51 Elm St., Suite 409

New Haven, CT 06510

(203) 562-9931

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the Sixth Amendment’s Confrontation

Clause prohibits the use of an autopsy report at a state

murder trial when the pathologist who conducted the

autopsy and prepared the report does not testify.

2. Whether the Connecticut Supreme Court’s refusal

to apply Fourth Amendment standards to the Petitioner’s

station-house confession violated the rule of Dunaway v.

New York.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............0. 2020000.

TABLE OF AUTHORITIES...............0..ecce0s- iii

OPINION BELOW...........-...0cc0ccececceceeeeee ‘loa

PUTIN goes scxiccvihceiesee 2

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED ...............c.ccccccccceces 2

STATEMENT OF THE CASE...................0--. 3

REASONS FOR GRANTING THE WRIT ........... 5

ili

TABLE OF AUTHORITIES

Page

CAsEs:

Brown v. Illinois, 422 U.S. 590 (1975)...............-. 7

California v. Green, 399 U.S. 149 (1930).............. 6

Chandler v. Fretag, 348 U.S. 3 (1954)................. 6

Coy v. Iowa, __ U.S. __, 108 S.Ct. 2798 (1988)...... 6

Dunaway v. New York, 442 U.S. 200 (1979) ........ 7, 8

Dutton v. Evans, 400 U.S. 74 (1970).................. 6

Mancusi v. Stubbs, 408 U.S. 204 (1972)............... 6

Ohio v. Roberts, 448 U.S. 56 (1980)................... 6

Pickett v. Bowen, 798 F.2d 1385 (11th Cir. 1986)...... 7

Sibron v. New York, 392 U.S. 40 (1968) .............. 8

Taylor v. Alabama, 457 U.S. 687 (1982)............. 7, 8

United States v. Bernard S., 795 F.2d 749 (9th Cir.

EE ON ee 7

United States v. Keplinger, 776 F.2d 678 (7th Cir

EEE SES TOO OTE Ee ET ETE TE 7

United States v. McClintock, 748 F.2d 1278 (9th

Ne kas Rae bakaeeeantsenceass 7

United States v. Mendenhall, 446 U.S. 544 (1980)..... 8

Wong Sun v. United States, 371 U.S. 471 (1963) ...... 7

No.

sa

vw

In The

Supreme Court of the United States

October Term, 1989

KENNETH DAMON,

Petitioner,

vs.

STATE OF CONNECTICUT,

Respondent.

a

~

On Petition For A Writ Of Certiorari

To The Supreme Court Of Connecticut

y%

_

PETITION FOR A WRIT OF CERTIORARI

a

=

Kenneth Damon, Petitioner, requests that a writ of

certiorari issue to review the judgment and opinion of the

Connecticut Supreme Court entered March 6, 1990.

rN

—

OPINION BELOW

The opinion of the Connecticut Supreme Court is

officially reported at 214 Conn. 146 (1990). It is repro-

duced in the Appendix to this Petition beginning at App.

p. A-1.

A timely motion to reargue was denied by the Con-

necticut Supreme Court on April 12, 1990. That order is

reproduced in the Appendix to this Petition beginning at

App. p. B-1.

a

4

JURISDICTION

The judgment of the Connecticut Supreme Court,

affirming Petitioner’s conviction of murder, was entered

on March 6, 1990. A timely motion to reargue was filed

with the Connecticut Supreme Court and denied by that

Court on April 12, 1990. The jurisdiction of this Court is

invoked under 28 U.S.C. 1257.

a

Fr

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fourteenth Amendment to the United States

Constitution provides in relevant part: “Nor shall any

State deprive any person of life, liberty or property with-

out due process of law... .”

2. The Sixth Amendment to the United States Con-

stitution provides in relevant part: “In all criminal pros-

ecutions the accused shall enjoy the right . . . to be

confronted with the witnesses against him. . . .”

3. The Fourth Amendment to the United States Con-

stitution provides in relevant part: “The right of the peo-

ple to be secure in their persons, houses, papers and

effects, against unreasonable searches and seizures, shall

not be violated . . . but upon probable cause... .”

4. Section 53a-54a of the Connecticut General Stat-

utes provides in relevant part: “A person is guilty of

murder when, with intent to cause the death of another

person, he causes the death of such person... .”

5. Section 52-180 of the Connecticut General Stat-

utes provides in relevant part: “(a) Any writing or rec-

ord . . . made as a memorandum or record of any act,

transaction, occurrence or event, shall be admissible as

evidence of the acts, transaction, occurrence or event, if

the trial judge finds that it was made in the regular

course of any business, and that it was the regular course

of the business to make the writing or record at the time

of the act, transaction, occurrence or event or within a

reasonable time thereafter. (b) The writing or record shall

not be rendered inadmissible by (1) A party’s failure to

produce as witnesses the person or persons who made

the writing or record, or who have personal knowledge of

the act, transaction, occurrence or event recorded or (2)

The party’s failure to show that such persons are unavail-

able as witnesses.”

a

vr

STATEMENT OF THE CASE

The Petitioner Kenneth Damon was convicted of the

September, 1987, murder of Monica Joyner and sentenced

to a term of life imprisonment. The victim’s body was

found in a pool of blood in the laundry area of the

basement of the building in which both she and Peti-

tioner’s mother rented apartments. The exact time of

death, the location and significance of stab wounds in the

body, and the nature and extent of bleeding prior to death

all were important issues during the trial, at which the

Petitioner presented an alibi defense. Although these de-

tails were of great importance, the pathologist who had

conducted the autopsy was vacationing in India at the

time of trial and was not expected back for two weeks.

The trial court rejected Petitioner’s motion for an ad-

journment pending the pathologist’s return and permit-

ted the State to introduce the autopsy report instead.

Upon learning of the Petitioner’s connection to the

crime scene, New Haven police officers confronted him at

his place of employment and told him they needed to

question him in connection with a murder investigation.

He agreed to their request that he accompany them to

New Haven police headquarters for this purpose. Be-

cause Petitioner worked in another town, he was unable

to leave New Haven police headquarters except if pro-

vided transportation in a police vehicle. He was taken

into the police building through a non-public entrance

and upon arrival was given his Miranda warnings. He

refused to sign a written waiver and denied any involve-

ment in the murder. He was then interrogated incom-

municado for almost five hours. His mother, who

contacted the police and requested to speak with him,

was denied access to him. He was never told that he had

a right to leave. Finally, “shaking and crying,” and assert-

ing that he was afraid his mother would be arrested if he

did not confess, Petitioner admitted stabbing the victim.

Both the trial court and the Connecticut Supreme

Court found that there had been no probable cause to

arrest the Petitioner or to take him into custody. Both

held, however, that he had not been arrested and was not

in custody at the time of his confession and that, there-

fore, Fourth Amendment standards did not apply.

a.

vv

REASONS FOR GRANTING THE WRIT

I

CERTIORARI SHOULD BE GRANTED TO DETER-

MINE WHETHER THE CONFRONTATION CLAUSE

PROHIBITS THE USE OF THE “BUSINESS RECORDS”

HEARSAY EXCEPTION TO AVOID IN-COURT TESTI-

MONY BY IMPORTANT PROSECUTION WITNESSES

WHOSE PRESENCE CAN BE OBTAINED WITHOUT

UNDUE HARDSHIP OR INCONVENIENCE TO THE

GOVERNMENT.

The autopsy testimony in this case was not routine,

but was extremely important to the defense case. The

nature and extent of knife wounds in the victim’s body,

the nature and extent of bleeding and particularly of

projectile bleeding, and the exact time of death all were

closely related to the alibi defense presented. It was cru-

cial for the defendant to establish that he would not have

had time to commit this murder and cleanse himself

before reporting for work at the times he was able to

demonstrate he had done.

At the start of trial, the State expressly represented to

the Court that the pathologist who had performed the

autopsy would be testifying as a prosecution witness.

Only the day of her scheduled testimony was it revealed

for the first time that she was in India and would not

return for two weeks. The Court refused to delay the trial

and permitted the use of an autopsy report under the

| = .

" ~—

“business records” exception to the hearsay rule over

timely objection.

“[M]yopic insistence upon expeditiousness in the

face of a justifiable request for a delay can render the

right to defend with counsel an empty formality.”

Chandler v. Fretag, 348 U.S. 3 (1954).

Of all the rights protected by the Bill of Rights, the

right to physically confront one’s accusers in open court

on an eyeball-to-eyeball basis is among the most central.

Coy v. Iowa, __ U.S. __, 108 S.Ct. 2798 (1988). Only when

the prosecution is able to demonstrate either the un-

availability of the declarant or that the “utility of trial

confrontation [is] remote,” can the right of confrontation

be denied. Ohio v. Roberts, 448 U.S. 56, 65-66 (1980). In the

present case, the State made no effort whatever to estab-

lish that it had made any effort of any kind to obtain the

presence of its witness at trial. In fact, Dr. Shaw was and

is a full-time employee of the State of Connecticut and

her availability was obvious.

Even if the State had been able to demonstrate that

Dr. Shaw was unavailable, her statement would not have

been admissible unless it carried with it adequate “indi-

cia of reliability . . . widely viewed as determinative of

whether a statement may be placed before a jury though

there is no confrontation of the declarant,” Dutton v.

Evans, 400 U.S. 74, 89 (1970), and sufficient to “afford the

trier of fact a satisfactory basis for evaluating the truth of

the prior statement.” California v. Green, 399 U.S. 149, 161

(1930). Cf. Mancusi v. Stubbs, 408 U.S. 204, 213 (1972). In

this instance, the critical nature of the evidence presented

and the highly subjective nature thereof made this the

very kind of hearsay the admission of which violates the

Confrontation Clause. See Pickett v. Bowen, 798 F.2d 1385

(11th Cir. 1986) (medical report in a sexual assault case);

United States v. McClintock, 748 F.2d 1278 (9th Cir. 1984)

(business record concerning the quality of gemstones);

United States v. Bernard S., 795 F.2d 749 (9th Cir. 1986);

United States v. Keplinger, 776 F.2d 678, 696 (7th Cir. 1985).

II

CERTIORARI SHOULD BE GRANTED TO PROTECT

THE JUDICIAL SYSTEM FROM THE USE OF CONFES-

SIONS OBTAINED BY THE EXPLOITATION OF

FOURTH AMENDMENT VIOLATIONS.

In this case, the state courts held that there was no

point prior to the Petitioner’s stationhouse confession at

which there existed any probable cause to take him into

custody. The State of Connecticut does not dispute that

holding. The Connecticut Supreme Court held, however,

that the Petitioner was not in custody at the time of his

confession and, therefore, the absence of probable cause

was irrelevant.

In so holding, the Connecticut courts have evaded

this Court’s rulings in Brown v. Illinois, 422 U.S. 590

(1975), and Wong Sun v. United States, 371 U.S. 471 (1963),

and have violated the rule of Taylor v. Alabama, 457 U.S.

687 (1982), and Dunaway v. New York, 442 U.S. 200 (1979).

It is well-settled that a confession which is the prod-

uct of an unlawful arrest or detention must be excluded

from evidence not so much for the protection of the

accused as for the protection of the integrity of the judi-

cial system. Wong Sun, supra; Brown, supra. It is equally

well-established that the police may not detain a suspect

for custodial interrogation without probable cause in the

hope that “something will turn up.” Dunaway, supra; Tay-

lor, supra.

While in every case it is a unique fact determination

whether the accused was “in custody” for Fourth Amend-

ment purposes, Sibron v. New York, 392 U.S. 40, 67 (1968),

any interrogation is custodial “if, in view of all the cir-

cumstances surrounding the incident a reasonable person

would have believed that he was not free to leave.”

United States v. Mendenhall, 446 U.S. 544, 553-54 (1980).

In this case, the Petitioner was confronted by three

armed police officers at his place of employment and told

that they wished tw question him about a murder. He was

taken in a police vehicle from the town where he was

employed to the headquarters of the New Haven Police

Department, entering via a private underground en-

trance. He was taken by elevator to the detective division

and there given his Miranda warnings. He was constantly

in the presence of one or more police officers from shortly

before 8:00 p.m. until about midnight, when he finally

confessed. During that time, his mother attempted to

speak with him but she was denied any opportunity to do

so. The Petitioner repeatedly insisted upon his innocence

during this time, but-he was not released. None of these

facts is in dispute. It is inconceivable under such circum-

stances that any reasonable person would have thought

he was free to leave police headquarters. The holding by

the Connecticut Supreme Court in this regard is nothing

less than a transparent attempt to evade the repeated

rulings of this Court. If the rule of law is to have any

meaning in this context, certiorari must be granted on

this issue.

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CONCLUSION

For the reasons stated above, this Petition for a Writ

of Certiorari should be granted.

Respectfully Submitted,

JOHN R. WILLIAMS

51 Elm St., Suite 409

New Haven, CT 06510

(203) 562-9931

Attorney for Petitioner

*

In The

Supreme Court of the United States

October Term, 1989

>

KENNETH DAMON,

Petitioner,

vs.

STATE OF CONNECTICUT,

Respondent.

o

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF CONNECTICUT

aa

APPENDIX TABLE OF CONTENTS

PAGE

APPENDIX A

Decision of Supreme Court, State of Connecti-

cut v. Kenneth Damon, 214 Conn. 146 (March 6,

APPENDIX B

Order on Motion for Reargument or Recon-

Supweenees Gumeas Ad, TOGO)... 2.2... eee weneee B-1

A-1

STATE OF CONNECTICUT Vv. KENNETH DAMON

(13672)

Peters, C. J., SHEA, CoveLto, Hutt and SANTANIELLO, Js.

Convicted of the crime of murder, the defendant

appealed to this court challenging the trial

court’s denial of his motion to suppress, as the

fruit of an illegal arrest made without probabie

cause, certain inculpatory statements he had

made to the police. He further challenged the

trial court’s admission into evidence of the re-

port of an autopsy performed on the victim. The

report was admitted under the business record

exception to the hearsay rule, through the testi-

mony of a pathologist who was not present

when the autopsy was performed. Held>

1. The trial court’s conclusion that the defen-

dant’s contact with the police was voluntary

and that he had not been seized or arrested

prior to the time he made the inculpatory

statements was supported by substantial ev-

idence.

2. The defendant could not prevail on his claim

that his constitutional rights to confronta-

tion, compulsery process and due process

were violated by the trial court’s admission

of the autopsy report; an autopsy report is

essentially a factual report limited to objec-

tive physical observations and, as such, con-

tains sufficient indicia of reliability to afford

the trier of fact a satisfactory basis for eval-

uating its truth.

3. The trial court did not abuse its discretion in

denying the defendant’s request for a con-

tinuance until the pathologist who had per-

formed the autopsy on the victim could be

called to testify or until he could retain his

own pathologist to examine the autopsy re-

port.

A-2

Argued December 13, 1989 — decision released March

6, 1990

Substitute information charging the defendant with

the crime of murder, brought to the Superior Court in the

judicial district of New Haven and tried to the jury before

Purtill, J.; verdict and judgment of guilty, from which the

defendant appealed to this court. No error.

Mark Rademacher, for the appellant (defendant).

Geoffrey E. Marion, deputy assistant state’s attorney,

with whom, on the brief, was Michael Dearington, state's

attorney, for the appellee (state).

Cove tio, J. The defendant, Kenneth Damon, appeals

from his conviction of murder in violation of General

Statutes § 53a-54a(a).1 The dispositive issues are: (1)

whether the trial court erred in denying the defendant’s

motion to suppress inculpatory statements made by the

1 “(General Statutes] Sec. 53a-54a. MURDER DEFINED.

AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDI-

TION. CLASSIFICATION. (a) A person is guilty of murder

when, with intent to cause the death of another person, he

causes the death of such person or of a third person or causes a

suicide by force, duress or deception; except that in any pros-

ecution under this subsection, it shall be an affirmative defense

that the defendant committed the proscribed act or acts under

the influence of extreme emotional disturbance for which there

was a reasonable explanation or excuse, the reasonableness of

which is to be determined from the viewpoint of a person in

the defendant’s situation under the circumstances as the defen-

dant believed them to be, provided nothing contained in this

subsection shall constitute a defense to a prosecution for, or

preclude a conviction of, manslaughter in the first degree or

any other crime.”

A-3

defendant to the police; and (2) whether the trial court

violated the defendant's constitutional rights of confron-

tation, compulsory process and due process when it ad-

mitted an autopsy report into evidence, under the

business record exception to the hearsay rule. We find no

error.

The jury could reasonably have found the following

facts: On September 9, 1987, Monica Joyner was found

stabbed to death in the basement of a three family dwell-

ing in New Haven. The victim lived on the second floor

with her husband and two young children. The first floor

apartment was occupied by Prisilla Damon, the defen-

dant’s mother. Prisilla Damon lived alone, but the defen-

dant occasionally stayed overnight at her apartment. The

defendant worked the noon to eight p.m. shift at

Bozzuto’s Trucking Company in Cheshire. On the night of

September 8, 1987, Prisilla Damon picked up the defen-

dant at Bozzuto’s, and at midnight they returned to her

apartment, where the defendant planned to spend the

night.

At approximately 11:15 a.m. on September 9, Mitchell

Stevenson, the owner of the building, left his third floor

apartment and walked down into the basement, and there

discovered the victim lying face down in a pool of blood

on the basement floor. The victim’s clothing was in par-

tial disarray. The victim had suffered multiple stab

wounds to her upper body, head and face.

On the afternoon of September 9, Prisilla Damon

went to the New Haven police station and gave a state-

ment indicating that the defendant had been at her apart-

ment that morning. Two plainclothes detectives,

A-4

Francisco Ortiz and Leroy Dease, drove to Bozzuto's,

where the defendant was working. The detectives asked

the defendant if he would voluntarily accompany them to

the New Haven police station to be interviewed in con-

nection with a homicide they were investigating. The

detectives informed the defendant that he was not under

arrest, that he did not have to accompany them, and that

he was free to leave if he chose to. The defendant agreed

to accompany the detectives.

The defendant was taken to the detective division

and given Miranda? warnings. The defendant was not

handcuffed, was not told that he was under arrest, and

was not told that he was a suspect. The defendant never

requested that he be allowed to go home.

Between 9 and 9:30 p.m. the detectives began ques-

tioning the defendant in a conference room.? The defen-

dant initially denied any knowledge of the victim or her

death. After several hours of questioning, however, at

approximately 12:15 a.m. on September 19, the defendant

2 Miranda v. Arizona, 384 U.S 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966).

3 The record reveals that the defendant was taken to the

police station in an unmarked car driven at normal speeds,

without the emergency lights or siren. The car entered the

police station via an underground parking garage, which was

the normal entrance into the building for detectives. The de-

fendant was taken by public elevator to the detective division

on the third floor, and then to the conference room. The confer-

ence room contained windows, and during the course of the

defendant’s interview the detectives were in and out of the

room. The door of the conference room remained open during

the course of the interview.

A-5

gave a tape recorded confession in which he admitted

killing the victim.* The defendant claimed that he had

acted in self-defense. He stated that the victim, while

“high” on drugs, had knocked on the back door of his

mother’s apartment at approximately 9:30 a.m. and had

asked him for some cocaine. He further stated that the

victim took a knife from his mother’s kitchen, then lured

him down the basement, where she attacked him with the

knife. The defendant stated that during the ensuing

struggle he accidentally stabbed the victim. The defen-

dant told the police that he had wrapped the knife in a

brown paper bag and had thrown it into a garbage can in

front of the Dixwell Plaza shopping area.>

The defendant was thereafter charged in a substitute

information with murder, in violation of General Statutes

§ 53a-54a(a). On May 24, 1988, the defendant filed a

motion to suppress the statements he had made to the

4 At approximately 9:30 p.m., Detective Ortiz left the con-

ference room, leaving the defendant and Detective Dease

alone. Approximately thirty minutes later Detective Anthony

DiLullo entered the conference room. Shortly after DiLullo’s

entrance, the defendant started shaking and crying. The defen-

dant then admitted to the police that he had stabbed the

victim. The defendant then agreed to make a taped statement

of his version of the stabbing.

5 Approximately three days later, Nathan Collins, a main-

tenance worker, found a butcher knife wrapped in a brown

paper bag while he was mowing the lawn at the Dixwell Plaza.

Collins threw the knife into a dumpster and the police were

unable to recover it. When the police visited Prisilla Damon on

September 10 and inquired if she was missing any knives, she

noticed that a butcher knife she usually kept near her sink was

missing.

A-6

police. In his motion to suppress, the defendant claimed

that his statements were made without a voluntary,

knowing and intelligent waiver of his constitutional priv-

ilege against self-incrimination, and that the statements

were made involuntarily in violation of his constitutional

rights to due process.

On November 29, 1988, the day before the trial be-

gan, the trial court conducted a suppression hearing and

thereafter denied the motion to suppress. The trial court

concluded that while there was no probable cause to

arrest the defendant up until the time he made the incul-

patory statements, the defendant had voluntarily accom-

panied the police to New Haven, had voluntarily

remained at the police station, and was not in police

custody at the time he made his incriminating statements.

The trial court further found that the defendant’s state-

ments were made with full knowledge of his Miranda

rights.

On December 1, 1988, at the start of the trial, the state

represented to the court that Malka B. Shah, the patholo-

gist who performed the autopsy on the victim, was in

India and was not expected back “for some period of

time.” The state explained that it intended to call another

pathologist from the same office, Ira Kanfer, who could

properly interpret and explain the findings contained in

the report.

The defendant objected to the admission of the au-

topsy report through Kanfer and requested three alterna-

tive rulings from the trial court. First, he requested that

the court preclude Kanfer from testifying. Second, the

defendant requested that the court grant a continuance

until Shah returned from India. Third, the defendant

requested that the court, if it denied the first two re-

quests, grant a continuance so that he could retain his

own pathologist to examine the autopsy report. Upon

inquiry, the trial court established that Shah had taken a

three month vacation and would not be back for two

weeks. The trial court overruled the defendant’s objec-

tions and denied the requests for a continuance. The trial

court ruled that the autopsy report would be admissible

as a business record, regardless of Shah’s availability, if a

proper foundation were laid and Kanfer could explain the

report.

Upon inquiry by the trial court, defense counsel stat-

ed that he had obtained a copy of the autopsy report “two

months or sc before this case started.” The trial court

concluded that there had been ample opportunity to re-

view the report and to retain a pathologist to explain it

from the defendant’s standpoint.

Dr. Kanfer then testified for the state. Kanfer limited

his testimony to explaining the terms used in the autopsy

report and describing the victim’s wounds as noted there-

in. He testified that the autopsy report was a standard

report made by the person who performed the autopsy,

that it was a report made in the regular course of busi-

ness at the medical examiner’s office, that it was the

regular course of business after making the report to keep

it on file at the medical examiner’s office, and that the

report was made soon after the autopsy was completed.

The state offered the autopsy report as a full exhibit

and the defendant objected. The trial court concluded

that a sufficient foundation had been laid and admitted

A-8

the autopsy report. Kanfer then testified briefly concern-

ing the four fatal stab wounds and the cause of death

reiterating the opinions of Shah as contained within the

report.

On December 7, 1988, the jury found the defendant

guilty as charged. The defendant immediately filed a

motion for judgment of acquittal and a motion for a new

trial. The trial court denied both motions. On February

24, 1989, the defendant was sentenced to a prison term of

sixty years. The defendant thereafter filed a direct appeal

from that judgment with this court, pursuant to

§ 51-199(b)(3).¢

I

The defendant'’s first claim is that the trial court erred

in denying the defendant’s motion to suppress his incul-

patory statements on the ground that he was arrested

without probable cause and that therefore, the statements

must be suppressed as the fruit of an illegal arrest. The

gravamen of the defendant’s claim is that he was in the

custody and complete control of the police prior to and

during the interview, and he was therefore “seized” and

under arrest for constitutional purposes. The defendant

alleges that because no probable cause existed at that

6 General Statutes § 51-199 provides in pertinent part: “(b)

The following matters shall be taken directly to the supreme

court . . . (3) an appeal in any criminal action involving a

conviction for a capital felony, class A felony, or other fel-

ony ... for which the maximum sentence which may be

imposed exceeds twenty years... .”

time for his arrest, his confession should have been sup-

pressed. We do not agree.

It is well settled that the fourth amendment’ requires

that a confession which is the product of an arrest or a

detention made without probable cause must be excluded

from evidence. Wong Sun v. United States, 371 U.S. 471, 83

S.Ct. 407, 9 L.Ed.2d 441 (1963); see also Brown v. Illinois,

422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). We

previously have held that the trial court must make two

determinations in assessing the admissibility of a confes-

sion made during custodial interrogation following a

claimed warrantless arrest: (1) whether or not the defen-

dant has been seized; and (2) whether or not there was

probable cause for the seizure. State v. Acquin, 187 Conn.

647, 651, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229,

103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983); State v. Ostroski,

186 Conn. 287, 290, 440 A.2d 984, cert. denied, 459 U.S.

878, 103 S.Ct. 173, 74 L. Ed.2d 142 (1982). Because the trial

court expressly found that there was no probable cause

for the defendant’s arrest prior to his making inculpatory

statements, only the first question is at issue in this

appeal.

7 The fourth amendment to the United States Constitution

provides: “The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no warrants shall issue, but

upon probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the per-

sons or things to be seized.”

A-10

“[A] person has been “seized” within the meaning of

the Fourth Amendment only if, in view of all the circum-

stances surrounding the incident, a reasonable person

would have believed that he was not free to leave.”

United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct.

1870, 64 L.Ed.2d 497 (1980); State v. Acquin, supra, 655. We

have held that “ ‘[t]o constitute an arrest, there must be

an actual or constructive seizure or detention of the per-

son, performed with the intention to effect an arrest and

so understood by the person detained.’ ” State v. Derrico,

181 Conn. 151, 159, 434 A.2d 356, cert. denied, 449 U.S.

1064, 101 S.Ct. 789, 66 L.Ed.2d 607 (1980), quoting Jenkins

v. United States, 161 F.2d 99, 101 (10th Cir. 1947); see also

State v. Magnotti, 198 Conn. 209, 212-13, 502 A.2d 404

(1985).

Voluntary interactions between the police and citi-

zens do not implicate fourth amendment protections.

United States v. Webster, 750 F.2d 307, 320 (5th Cir. 1984),

cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855

(1985). A person is not arrested nor seized under the

fourth amendment if he freely chooses to enter into or

continue an encounter with the police. United States v.

Brunson, 549 F.2d 348, 357 (5th Cir. 1977), cert. denied, 434

U.S. 842, 98 S.Ct. 140, 54 L.Ed.2d 107 (1977). Police offi-

cers do not violate an individual’s constitutional rights by

approaching him, by asking him if he is willing to answer

some questions, by putting questions to him if he is

willing to listen, or by offering into evidence in a criminal

prosecution his voluntary answers to such questions.

Florida v. Royer, 460 U.S 491, 497, 103 S.Ct. 1319, 75

L.Ed.2d 229 (1983); State v. Brown, 199 Conn. 47, 52-53,

505 A.2d 1225 (1986).

eet anneneineeeieiee

A-11

A finding of fact will not be overturned on appeal

unless it is clearly erroneous. State v. Pittman, 209 Conn.

596, 606, 553 A.2d 155 (1989); State v. Young, 191 Conn.

636, 652, 469 A.2d 1189 (1983); see Practice Book § 4061.

Where a constitutional issue turns upon a factual finding,

however, this court has applied a stricter standard .of

review of the factual finding. “The issue is factual, but

our usual deference to the finding of the trial court on

questions of this nature is qualified by the necessity for a

scrupulous examination of the record to ascertain wheth-

er such a finding is supported by substantial evidence.

Columbe v. Connecticut, 367 U.S. 568, 605, 81 S.Ct. 1860, 6

L.Ed.2d 1037 (1961).” State v. Frazier, 185 Conn. 211, 219,

440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S.Ct

3496, 73 L.Ed.2d 1375 (1982).

We conclude, after a scrupulous examination of the

record, that the evidence presented during the suppres-

sion hearing was sufficient to support the trial court’s

conclusion that the defendant was neither under arrest

nor seized for constitutional purposes until after he vol-

untarily gave the inculpatory statements to the police. As

factfinder, the trial court was entitled to accept the un-

controverted testimony of the three detectives who trav-

eled to Bozzuto’s that the defendant was not a suspect at

that time;® that his decision to accompany the police was

8 Testimony elicited at the suppression hearing and at trial

indicates that the police originally suspected the landlord,

Mitchell Stevenson, of the murder. Stevenson was questioned a

number of times on the day of the crime, including twice at the

police station, and was told that he was a suspect. He was

fingerprinted, strip searched, and his apartment was searched.

A-12

completely voluntary; that he expressed no reservations

about going to the police station or answering questions

about the homicide; that he was informed that he was not

under arrest and could leave if and when he chose to;

that before leaving Bozzuto’s he returned to his work

area unescorted in order to retrieve his backpack, which

the police did not search; that he traveled to New Haven

in an unmarked car that did not contain a restraining

cage and which could be unlocked from the inside; that

he was not physically or verbally restrained or hand-

cuffed; and that he never requested to go home. See, e.g.,

United States v. Mendenhall, supra.

Although the defendant was in the company of one

or two detectives until midnight, when his confession

was recorded, the testimony indicates that the actual

interview did not begin until sometime between 9 and

9:30 p.m. and that the defendant first implicated himself

shortly after 10 p.m.? Also, the issuance of Miranda warn-

ings as a cautionary measure does not mean that the

defendant had been arrested. See, e.g., Government of

Virgin Islands v. Commissiong, 698 F. Sup. 604, 612 (D.

Virgin Islands 1988).

The trial court could reasonably have concluded that

the defendant’s contact with the police was voluntary

and did not amount to a seizure or arrest prior to the time

he made the inculpatory statements. This conclusion is in

accord with recent decisions of this court containing simi-

lar factual backgrounds. See State v. Young, supra; State v.

Acquin, supra; State v. Derrico, supra.

9 See footnote 4, supra.

:'

A-13

II

The defendant next argues that his constitutional

rights to confrontation, compulsory process and due pro-

cess were violated when the trial court admitted the

victim’s autopsy report into evidence, as a business rec-

ord, through the testimony of a pathologist who was not

present at the autopsy, after the trial court had denied the

defendant’s request for a continuance. We do not agree.

To gain admission of a document under the business

record exception to the hearsay rule,’° the proponent

10 “[General Statutes] Sec. 52-180. ADMISSIBILITY OF BUSINESS

ENTRIES AND PHOTOGRAPHIC copies. (a) Any writing or record,

whether in the form of an entry in a book or otherwise, made

as a memorandum or record of any act, transaction, occurrence

or event, shall be admissible as evidence of the act, transaction,

occurrence or event, if the trial judge finds that it was made in

the regular course of any business, and that it was the regular

course of the business to make the writing or record at the time

of the act, transaction, occurrence or event or within a reason-

able time thereafter.

“(b) The writing or record shall not be rendered inadmis-

sible by (1) a party’s failure to produce as witnesses the person

or persons who made the writing or record, or who have

personal knowledge of the act, transaction, occurrence or event

recorded or (2) the party’s failure to show that such persons

are unavailable as witnesses. Either of such facts and all other

circumstances of the making of the writing or record, including

lack of personal knowledge by the entrant or maker, may be

shown to affect the weight of the evidence, but not to affect its

admissibility.

“(c) Except as provided in chapter 3, if any person in the

regular course of business has kept or recorded any memoran-

dum, writing, entry, print, representation or combination there-

of, of any act, transaction, occurrence or event, and in the

(Continued on following page)

A-14

must show that (1) the document was made in the regular

course of business, (2) it was the regular course of busi-

ness to make such a record, and (3) the record was made

(Continued from previous page)

regular course of business has caused any or all of them to be

recorded, copied or reproduced by any photographic, photo-

static, microfilm, microcard, miniature photographic or other

process which accurately reproduces or forms a durable medi-

um for so reproducing the original, the original may be de-

stroyed in the regular course of business unless its

preservation is otherwise required by statute. The reproduc-

tion, when satisfactorily identified, shall be as admissible in

evidence as the original in any judicial or administrative pro-

ceeding, whether the original is in existence or not, and an

enlargement or facsimile of the reproduction shall be likewise

admissible in evidence if the original reproduction is in exis-

tence and available for inspection under direction of court. The

introduction of a reproduced record, enlargement or facsimile

shall not preclude admission of the original.

“(d) The term ‘business’ shall include business, profession,

occupation and calling of every kind.”

Autopsy reports are also admissible pursuant to General

Statutes § 19a-412, which provides: “Formerly Sec. 19-53(6).

RECORDS AS EVIDENCE. The records of the office of the chief

medical examiner, or transcripts thereof certified by the chief

medical examiner or his authorized representative, shall be

subject to subpoena and shall be admissible in evidence in any

court in the state in the same manner and subject to the same

conditions as hospital records as provided in section 4-104,

except that the findings or conclusions of the chief medical

examiner, his deputy, an associate medical examiner or an

assistant medical examiner as to the cause or circumstances of

death, other than those set forth in the death certificate or the

autopsy report, and statements by witnesses or other persons

and conclusions upon extraneous matters shall not be admis-

sible.”

ae

a Dane ee DA OAS Ee

A-15

when the act, transaction or event occurred, or shortly

thereafter. Emhart Industries, Inc. v. Amalgamated Local

Union 376, U.A.W., 190 Conn. 371, 383-84, 461 A.2d 422

(1983). To qualify a record as a business entry, a witness

must testify to the three requirements, but the witness

need not have been the entrant himself or even in the

employ of the business when the entry was made. See,

e.g., Baumert-Moran Sales Co. v. Red Bird Truck Rental

Corporation, 149 Conn. 42, 45, 175 A.2d 189 (1961); D’Ama-

to v. Johnston, 140 Conn. 54, 62, 97 A.2d 893 (1953).

“(T]he essential hallmark of admissibility under

§ 52-180 is the trustworthiness of the document... .”

Jefferson Garden Associates v. Greene, 202 Conn. 128, 141,

520 A.2d 173 (1987). Kanfer testified that the autopsy

report was a standard report, made in the regular course

of business soon after the autopsy was completed, and

that it was the regular course of business to keep the

report on file at the medical examiner’s office. In light of

Kanfer’s testimony and the nature of the document itself,

which is a report derived from established routine pro-

cedures designed to record objective facts and observa-

tions, we conclude that the trial court did not abuse its

discretion in admitting the autopsy report as a business

record.

The defendant further argues, however, that even if

the admission of the autopsy report complied with the

statute, its admission through the testimony of Kanfer

violated his constitutionally protected confrontation

rignts.1! Although the confrontation clause and the

11 The sixth amendment to the United States Constitution

provides: “In all criminal prosecutions, the accused shall enjoy

(Continued on following page)

A-16

hearsay rule protect similar values, the two are not coex-

tensive. It is well established, however, that hearsay evi-

dence may be admitted without violating the

confrontation clause where the evidence falls within a

firmly rooted hearsay exception. See, e.g., Ohio v. Roberts,

448 U.S. 56, 63-66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980);

State v. Cosgrove, 181 Conn. 562, 571-72, 436 A.2d 33

(1980). “Firmly rooted exceptions to the hearsay rule do

not violate the confrontation clause.” United States v. Bak-

er, 855 F.2d 1353, 1360 (8th Cir. 1988), cert. denied, __

U.S. __, 109 S. Ct. 2072, 104 L. Ed. 2d 636 (1989). The

precepts of confrontation are satisfied when an out of

court statement complies with the conditions of a well

established exception to the hearsay rule. Bourjaily v.

United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d

144 (1987).

Other courts have specifically rejected confrontation

claims involving autopsy reports in factual backgrounds

similar to that presented in this appeal. See, e.g., Mont-

gomery v. Fogg, 479 F. Sup. 363, 369-71 (S.D.N.Y. 1979);

Collins v. State, 267 Ind. 233, 235-36, 369 N.E.2d 422,

(1977). Also, in State v. Cosgrove, supra, we rejected simi-

lar claims in an analagous context. In Cosgrove, a tox-

icological report on seized marijuana was admitted as a

(Continued from previous page)

the right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been com-

mitted, which district shall have been previously ascertained

by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in his favor,

and to have the assistance of counsel for his defense.”

|

A-17

business record. The defendant in that case argued that

admission of the report violated his right of confrontation

because the report contained the statements of a chemist

who was not called to testify. In reaching our conclusion

that no violation of the defendant’s confrontation right

had occurred, we focused on whether such reports were

sufficiently trustworthy and reliable to be placed before

the jury without confrontation of the declarant. Id.,

569-78; see also Reardon v. Manson, 806 F.2d 39 (2d Cir.

1986), cert. denied, 481 U.S. 1020, 107 S. Ct. 1903, 95 L. Ed.

2d 509 (1987); State v. King, 187-Conn. 292, 309-15, 445

A.2d 901 (1982).

The same factors that supported the reliability of the

toxicological report admitted in Cosgrove are largely pres-

ent in this case.'2 An autopsy report derives from well

12 The factors that we identified as determinative in the

question of whether a toxicological report is sufficiently reli-

able and trustworthy to be admitted without confrontation of

the declarant included: (1) a toxicological report is the record

of the results of well recognized chemical and laboratory pro-

cedures; (2) it contains a record of objective facts and not only

opinion; (3) the report is the record of routine tests performed

hundreds or thousands of times a year, and in light of their

frequency are so generally considered reliable that they are

normally undisputed; (4) the chemist reporting the facts would

have no motive to falsify the records but would be under a

strict duty as an employee and a scientist to make an accurate

report to preserve her job and the integrity of the toxicological

laboratory; (5) the chemist owes no allegiance per se to the

state’s attorney; and (6) while such tests are not purely me-

chanical, they fall well within the category of those types of

tests whose reliability has been consistently demonstrated and

generally accepted, and do not contain the degree of subjec-

tivity that would warrant production of the declarant. State v.

Cosgrove, 181 Conn. 562, 575-77, 436 A.2d 33 (1980).

A-18

recognized, routine procedures, and records objective

facts. These procedures are performed hundreds of times

each year, and in light of their frequency, are so generally

considered reliable that they are normally undisputed.

The pathologist performing the autopsy, Shah, had no

motive to falsify her findings and owed no special alleg-

iance to the state’s attorney. Shah, as a physician and a

state employee, has a professional duty to report the

results of her work in an accurate and truthful manner.

See State v. Cosgrove, supra, 575-77. Like a toxicology

report, an autopsy report is essentially a factual report

limited to objective, physical observations. As such, it

contains sufficient indicia of reliability to afford the trier

of fact a satisfactory basis for evaluating the truth of the

prior statement. See Montgomery v. Fogg, supra, 379.

The state was not obligated to demonstrate the un-

availability of Shah. Section 52-180 expressly provides

that the proponent of the business record need not pro-

duce that person who made the record or show that the

person is unavailable. State v. Jeustiniano, 172 Conn. 275,

280, 374 A.2d 209 (1977). Unavailability need not always

be demonstrated to satisfy the confrontation clause. State

v. Vessichio, 197 Conn. 644, 657-60, 500 A.2d 1311 (1985),

cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d

187 (1986).

Ill

The defendant’s final contention is that the trial

court’s denial of his request for a continuance, until Shah

returned from India or until the defendant could retain

his own pathologist to examine the report, violated his

a eh A NO cesta 1

ON i

A-19

rights to compulsory process or due process. The decision to

grant a request for a continuance lies within the sound

discretion of the trial court and will not be disturbed on

appeal absent clear abuse of that discretion. State v. Aillon,

supra, 394; State v. Stanley, 197 Conn. 309, 311-12, 497 A.2d 46

(1985). The defendant bears the heavy burden of proving

that the trial court acted arbitrarily and substantially impair-

ed the defendant's ability to defend himself. State v. Becken-

bach, 198 Conn. 43, 47-48, 501 A.2d 752 (1985).

The defendant here fails to carry this burden. There

is nothing in the record to indicate that Shah would have

given any testimony favorable to the defendant. See State

v. Aillon, supra, 396. Kanfer, a qualified pathologist who

had performed over 800 autopsies, was present in court

to explain fully the meaning of the autopsy report and

was subject to cross examination by the defendant. Also,

the defendant had possession of a copy of the autopsy

report for more than two months and had ample oppor-

tunity to review its content and retain an expert witness

to explain its content, if he so desired. Furthermore, the

defendant requested the continuance one day after the

start of trial. The trial court has a responsibility to avoid

unnecessary interruptions, to maintain the orderly pro-

cedure of the court docket, and to prevent any inter-

ference with the fair administration of justice. See State v.

Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). Based upon

the record it cannot be said that the trial court abused its

discretion or deprived the defendant of his constitutional

rights to compulsory process or due process of law.

There is no error.

In this opinion the other justices concurred.

B-1

STATE OF CONNECTICUT

SUPREME COURT

NO. 13672

STATE OF CONNECTICUT

v.

KENNETH DAMON : APRIL 12, 1990

ORDER

THE MOTION OF THE DEFENDANT, FILED

MARCH 14, 1990, FOR REARGUMENT OR RECON-

SIDERATION, HAVING BEEN PRESENTED TO THE

COURT, IT IS HEREBY ORDERED DENIED.

BY THE COURT,

/s/ Francis : Drumm

NOTICE SENT: 4-12-90

GEOFFREY MARION, D.A.S.A.

JOHN R. WILLIAMS

CLERK, NEW HAVEN J.D.

(CR6-277707)

HON. JOSEPH J. PURTILL

REPORTER OF JUDICIAL DECISIONS