# Petition for Writ of Certiorari — Damon v. Connecticut

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 819

## Text

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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1663%3A1. Public record. Not legal advice.