Petition for a Writ of Certiorari — Buteau v. Connecticut

INDEX

Susyect INDEX

PAGE

Petition for writ of certiorari 1

Summary statement of matter involved 1

This court has jurisdiction 10

The questions presented 12

Reasons relied on for allowance of writ 16

Prayer for writ 19

Brief in support of petition for writ of a 20

Opinion of Court below 20

Jurisdiction 20

Statement of case 21

Errors relied upon 21

Summary of argument 22

Argument 23

A. The confessions should have been excluded ... 23

B. The procedure used to obtain the confessions

is unconstitutional 33

Conclusion... 34

TaBLE oF Cases CITED

Ashcraft vs. State of Tennessee, 322 U. S. 143, 64 S. Ct.

921 19, 23, 31, 32

Chambers vs. State of Florida, 309 U.S. 227, 60 S. Ct.

472 19, 23, 32

Haley vs. State of Ohio, 332 U.S. 596, 68 S. Ct. 302...........

19, 23, 26, 31, 32

Harris vs. State of South Carolina, 338 U.S. 68, 69 S. Ct.

1354 19, 23, 26, 31, 32

Lyons vs. Oklahoma, 322 U.S. 596 26

Malinski vs. People of State of New York, 324 U.S. 401,

65 S. Ct. 781 19, 23, 26, 31, 33

McNabb vs. United States, 318 U.S. 332 26, 30

State vs. Chin Lung, 106 Conn, 701. 4, 24

30

State vs. Coffee, 56 Conn. 399

il INDEX

PAGE

Turner vs. Commonwealth of Pennsylvania, 338 U.S. 62,

69 S. Ct. 1352 19, 23, 26, 31, 32

United States vs. Mitchell, 322 U.S. 65 26

Watts vs. State of Indiana, 338 U.S. 49, 69 S. Ct. 1347

18, 23, 25, 26, 31, 32, 34

OtHer AuTHorities CITED

Constitution of the United States:

Fourteenth Amendment... 2, 10, 11, 12, 13, 14, 16, 17, 18,

21, 22, 23, 29, 31, 32, 33, 34, 35

Sixth Amendment 14

Constitution of State of Connecticut :

Article I, Sec. 9 3, 14

Article V, Sec. 1 31

Connecticut Practice Book, Rev. 1930:

Section 399, p. 117 as amended 11

Section 405, p. 119 12

6 Corpus Juris Secundum, Sec. 17 (b) p. 618 30

TABLE OF STATUTES CITED

Connecticut Statutes :

General Statutes, Rev. 1930, Sec. 239; (Sec. 54-h,

C.S. 1945; Sec. 465, G.S. 1949) 30

1945 Supplement to the General Statutes:

Section 54-h, C.S. 1945 (Sec. 465, G.S. 1949)

2, 3, 12, 13, 14, 15, 21, 22, 24, 25, 29, 30, 32 34

Section 56-h, C.S. 1945 (Sec. 477, G.S. 1949) 8, 28

General Statutes, Rev. 1949':

Section :

466 (Sec. 240, G.S. 1930) 10, 26

468 (Sec. 258, G.S. 1930; Sec. 50-c, C.S. 1935;

Sec. 105-e, C.S. 1939) 8, 10, 26

1Citations to General Statutes, Rev. 1949 contain same provisions

of law as in indicated citations in parenthesis to General Statutes,

Rev. 1930 as amended and operative in the present case.

473 (Sec.

475 (Sec.

476 (Sec.

477 (Sec.

478 (Sec.

479 (Sec.

480 (Sec.

485 (Sec.

486 (Sec.

iil

PAGE

245, G.S. 1930; Sec. 47-c, C.S. 1935)

9

246, G.S. 1930) 7,9

247, G.S. 1930) 7

56-h, C.S. 1945) 8

9

9

248, G.S. 1930) g,

249, G.S. 1930) 8,

250, G.S. 1930; Sec. 48-c, C.S. 1935)

255, G.S. 1930). 8, 10,

256, G.S. 1930)

8350 (Sec. 6043, G.S. 1930; Sec. 1685-c CS.

1935)

8351 (Sec. 6044, G.S. 1930)

8352 (Sec. 6045, G.S. 1930)

8764 (Sec. 6446, G. S. 1930) 4,

Title 5 Chapter 20? (Title 4, Chap. 14, G.S. Rev.

1930, as amended )

United States Statutes:

Title 28, United States Code, Sec. 1257 (3) 10,

28 U.S.C.A. Sec. 344 (b) 10,

30

30

2This citation contains the same laws operative in the present case

under General Statutes, Rev. 1930 as amended except as to Sec.

98-i, C.S. 1947 contained in Sec. 470, G.S. 1949 and Sec. 99-i, C.S.

1947 contained in Sec. 483, G.S. 1949.

—7_—" ' reser ec

Supreme Court of the United States

OCTOBER TERM, 1949

NO.

JAMES BUTEAU

Petitioner

US.

STATE OF CONNECTICUT

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ERRORS OF THE STATE OF

CONNECTICUT.

May It PLEASE THE CourT:

The petition of James Buteau respectfully shows:

I

Summary Statement of Matter Involved

This case involves the procurement of two confessions of the

petitioner and their admission in evidence to the jury against him

in a trial in which the petitioner was convicted of first degree

murder and is under sentence of death.

2

The petitioner contended in the Supreme Court of Errors

and on trial that the procurement and admission in evidence of

these two confessions deprived him of life and liberty without

due process of law in violation of the Fourteenth Amendment to

the United States Constitution, because the confessions were

procured after the petitioner had been held incommunicado, in

the private, secret custody of state police, for the purpose of

obtaining a confession from the petitioner, committed to the police

for this purpose by the coroner by virtue of an illegal warrant,

without a presentation in court until twenty-five days after his

arrest, being in violation of Sec. 54-h C.S. 1945 requiring “pre-

sentation with reasonable promptness before proper authority,”

and after having been subjected to persistent questioning for long

periods of time, the first confession having been procured on the

seventh day after his arrest and the second confession on the

eleventh day after his arrest and before the petitioner had the

benefit of counsel.

The petitioner was indicted jointly with one Albert Berard,

on September 17, 1947, for murder in an attempt to perpetrate

a robbery (R. 2). Separate trials were granted (R. 2-4).

Cn an appeal to the Supreme Court of Errors of the State of

Connecticut, the judgment of conviction was confirmed on August

16, 1949 (R. 2252). A motion for re-argument in the Con-

necticut Supreme Court of Errors, timely filed, was denied with-

out opinion on October 5, 1949 (R. 2254).

During the trial in the Superior Court, a preliminary hearing

was held by the court, in the absence of the jury, as to the admis-

sibility of each confession and as to each confession the court

concluded it to be voluntary and admissible in evidence and they

were later admitted in evidence to the jury (R. 538, 587, 590,

731, 1549, 1551; 656, 663, 669, 673, 731, 1674, 1675).

On October 25, 1946 the assistant manager of a department

store in Meriden was shot and killed during the attempted per-

petration of a robbery of the store. The identity of the robbers

at this time was not known.

_—————

3

On August 22, 1947, Albert Berard was arrested for the

crime. On August 23, 1947, about 2:00 a. M., the petitioner was

arrested by state police without a warrant on orders of state

police commissioner, Edward Hickey, and immediately taken to

state police headquarters in Hartford where he was questioned

from 3:00 a. m. to 5:00 a. M. by commissioner Hickey, state

police officers and the assistant state’s attorney and where he was

confronted with Berard who made accusations against him.

Petitioner made no incriminating statements concerning the

crime. Before leaving the room commissioner Hickey told him

he was being held for murder.

The arrest was made under the provisions of 54-h C.S. 1945

which permits an arrest without a warrant under certain circum-

stances and provides that “Any person so arrested shall be pre-

sented with reasonable promptness before proper authority” (R.

532, par. 25.)

At 5:00 a. m. August 23rd the petitioner was locked in a cell

at the Hartford state police barracks.

Beginning at 9:00 a. M. that same morning and until about

2:00 p. M. of that day, the petitioner was further questioned in

the Hartford state police barracks and then brought to the Bethany

state police barracks where hv was lodged in a cell in the late

afternoon, the cell containing a steel bunk with no mattress or

pillow. The petitioner was questioned concerning the crime for

over seven and one-half hours on the day of his arrest (R. 119,

124, 167-8, 172-5, 178, 182-3, 241, 243-7, 250, 327-329).

A presentment or indictment of the grand jury is required to

hold a person to answer for a crime the punishment of which is

death or life imprisonment such as in first and second degree

murder. Conn. Const. Art. I, Sec. 9; Secs. 8350-8352 GS.

1949.

State procedure would have permitted the police to present the

petitioner on charges of murder in the Meriden Municipal Court

on the morning of his arrest or on any week-day thereafter for

4

binding over to the Superior Court at New Haven, being the

process of law by which the petitioner would have been held

until the Superior Court would have taken cognizance of the

charges against him by reason of an indictment by a grand jury.

State vs. Chin Lung, 106 Conn. 701, 720.

The petitioner could also have been presented in the Superior

Court of New Haven County upon an information filed by the

state’s attorney for an order of court holding the petitioner until

indictment by a grand jury. Sec. 8764, G.S. 1949.

The petitioner was never presented in the Meriden Municipal

Court at any time and was not presented in the Superior Court

for New Haven County until September 17, 1947, being the day

of his indictment by a grand jury.

Instead of being presented in court, pending indictment, the

petitioner was committed to the Bethany state police barracks

under a warrant issued August 23, 1947 by Coroner James J.

Corrigan. On that same day, Coroner Corrigan issued his war-

rant committing the petitioner’s accomplice, Albert Berard, to

the New Haven county jail.

In connection with the issuance of the warrant by the Coroner,

it was his own testimony that he knew “it was the desire of the

investigating authorities to talk with Buteau further.” (R.

40-41). On August 23, 1947 the coroner knew he could have

summoned the petitioner before him for questioning, but did not

do so because he was of the opinion that the investigation had

not yet proceeded to the point he “thought most fruitful” against

Buteau and he decided “the most expeditious way’’ was to leave

the petitioner with the state police, (R. 49-50); that he com-

mitted the co-defendant, Berard, to the New Haven county jail

at the same time because the “investigation had advanced to a

more complete stage with regard to him than with regard to

Buteau,” (R. 41); that he committed the petitioner to the state

police barracks “to make it easier for the Meriden police and the

state police to talk to Buteau,” (R. 41) and “because we decided

that the investigation might proceed with greater facility if he

5

were at the Bethany barracks,” and because “it would give the

state police greater chance to confer with him and a better oppor-

tunity than if he were at the jail.” (R. 40-41); that a further

reason for committing the petitioner to the state police barracks

was to prevent the petitioner from having the advice of fellow

prisoners in the county jail (R. 1982); that to assist the state

police in questioning the petitioner further, he ordered the peti-

tioner “kept incommunicado” (R. 43) ; that it was his intention

“no person be permitted to communicate with Buteau”” except

with the coroner’s consent (R. 43; 533, par. 33); that it was the

intention of the coroner that as long as the petitioner “remained

in the custody of the state police he could be left at the barracks

or taken to any other proper place,” and that by “proper place”

the coroner meant “the scene of the crime, the state’s attorney's

office, the coroner’s office, the jail, the City of Meriden,—any

place where the police could get information from Buteau con-

cerning this crime . . . any place the police thought fit to

take him if they could get information about the crime,” (R.

47-48) ; and that whether or not the petitioner “might be brought

to a certain place would be determined by the state police,” (R.

47-48) and his sole purpose was to aid the police in getting

information from the petitioner (R. 48; 533, par. 32, 33). All

the foregoing testimony of the coroner is undisputed.

Petitioner was held on the authority of coroner Corrigan’s war-

rant in private secret custody, without counsel until after the

taking of petitioner's statement on August 30, 1947 by Deputy

Coroner, Nathan G. Sachs.

On August 25, 1947 the petitioner was taken to Meriden by

order of commissioner Hickey and followed his accomplice, Ber-

ard, at a short distance while Berard went over the route and

areas connected with the crime, each being accompanied by state

police officers and representatives of the state’s attorney's office.

On this day the petitioner was questioned over a period of four

and one-half hours concerning the crime. (R. 179-182, 184-186,

189, 197, 198, 251, 252, 255, 259-261.)

6

In the meantime, members of the petitioner’s family were not

able to locate him. His family with whom the petitioner lived,

learned of his arrest through a radio broadcast at noon on the

day of his arrest. State police officers who called at the home

that same morning talked with the petitioner’s sister but failed to

give her any information concerning the arrest or whereabouts

of the petitioner notwithstanding her inquiries of them (R. 296-

300).

For the purpose of aiding the petitioner, his sister tried to

locate him beginning August 23, 1947 on numerous occasions

by making inquiries of the Meriden city police, the New Haven

county jail, by attempting to locate the coroner of the county

without success, by inquiring of the deputy coroner and members

of the state police department but was unable to get any infor-

mation as to the whereabouts of her brother until August 28, 1947

(R. 300-302).

On August 27, the petitioner’s sister inquired of the state police

who called at her home but was given no information as to the

location of her brother (R. 302-303).

On August 28, 1947 the petitioner’s sister (Elaine Buteau)

was taken by state police officers to the Bethany state police bar-

racks on orders of Captain Carroll for the purpose of Captain

Carroll trying to influence her to persuade her brother to give

information on the crime (R. 200-202, 212, 304-305). He was

questioned in the presence of his sister but made no incriminating

statements. At this time, Captain Carroll told the petitioner that

two state police officers had seen a bank book in the name of

Albert Berard that showed a deposit of either $5,090. or $8,090

(R. 215-216, 231). The truth of the existence of said deposit

was never afterwards proven. Petitioner was questioned further

that same evening after his sister left and for the first time

admitted that on the night of the crime he had beer in the store

where the crime had been committed (R. 535, par. 47). On

this day he was questioned for a substantial part of five hours

(R. 200-202, 205, 209, 212-215, 223-230, 261, 263, 273, 304).

—a—

7

That evening, Captain Carroll decided to take the petitioner the

next day to the state’s attorney's office for further questioning.

On August 29, 1947, petitioner was questioned concerning the

crime by Captain Carroll and a county detective for about one

hour at the Bethany barracks. By previous arrangement, he was

then brought to the state’s attorney's office, New Haven arriving

there about 10:30 a. M. and except for a short period for lunch

and when he was kept in the prisoner’s cage in the criminal court

room, the petitioner was held in the state’s attorney's office until

about 6:00 p. m. During these hours the petitioner was ques-

tioned at great length by the state’s attorney, Captain Carroll and

a county detective. Berard was present during a substantial part

of the questioning and made accusations against the petitioner.

On this day he had his first change of clothing since his arrest

and was permitted to shave for the first time and was questioned

even while shaving. He was questioned on this date for a total

of about seven hours (R. 278-279, 281-282, 286-287 ).

The first confession of the petitioner was taken by the deputy

coroner on August 30, 1947 by arrangement with the state’s

attorney (State’s Exhibit 44, R. 28). This questioning took three

and one-half hours (R. 592, 606, 621-622, 652). At the con-

clusion of the statement, the petitioner was committed by a war-

rant of that date issued by the deputy coroner to New Haven

county jail, the place of confinement for prisoners awaiting trial

in New Haven county (Par. 59, R. 537).

Notwithstanding the direction of the warrant committing the

petitioner to jail (Defendant’s Exhiibt “K,” R. 27, 2031-2032,

R. Vol. I, page f), the police brought the petitioner to Meriden

where by arrangement they met Captain Carroll and while in their

custody petitioner was questioned and taken into the store and

other places connected with the crime (R. 387, 392-394, 407,

417).

At no time did coroner Corrigan question the petitioner or

Berard or any witnesses or perform any of the statutory func-

tions connected with a coroner’s inquest (Sec. 473, 475, 476,

8

478, 479, 485, G.S. 1949; R. 18-19, 34, 35, 38, 39, 49, 50, 51:

533, par. 30-32).

Section 485, G.S. 1949, requires that a coroner must be con-

ducting an inquest in order to be authorized to arrest and commit

to jail or other proper place any person whom he has reason to

suspect of having criminally caused the death of another.

The deputy coroner has the same powers as the coroner while

acting in his place (Sec. 468, G.S. 1949).

The deputy coroner started the inquest on the night of the

- crime and after the arrest of the petitioner completed the inquest

and filed his statutory finding. (R. 1122, 1141). He did not

know the place of confinement of the petitioner under the coroner's

warrant until August 29, 1947 when he learned it from the state’s

attorney (R. 1142, 1148).

It is not disputed that the petitioner, on the day of his arrest,

told Captain Carroll that when the time came he expected the

public defender to represent him (R. 182-184; 2246-2247). The

stenographic statement of August 30, 1947 of the petitioner ob-

tained by the deputy coroner does not show that the deputy coro-

ner informed or questioned the petitioner concerning his

statutory right to have counsel present (R. 1126; Sec. 477, G.S.

1949). Whether any such advice was given before the statement

of August 30, 1947 was begun, is not recalled by the petitioner

(R. 351) nor by the deputy coroner (R. 1126).

On September 3, 1947 the petitioner appeared in the Superior

Court for the specific purpose of having a special public deefnder

appointed to represent him because he was without funds and

because the public defender was representing the accomplice,

Berard, at which time the court stated counsel would be appointed

to represent the petitioner.

These proceedings ended at 12:00 noon that day. Petitioner

was not then returned to New Haven county jail, but was kept

in police custody in the state’s attorney’s office until 10:00 Pp. M.

during which time his statement of September 3, 1947 was pro-

———— a

9

cured (State’s Exhibit 45, R. 745-752). This statement was

procured by Captain Carroll when he and the state’s attorney knew

of the impending appointment of counsel to represent the peti-

tioner and before the petitioner had the benefit or advice of any

counsel. The special public defender to represent the petitioner

was appointed September 4, 1947.

The required application for the appointment of a special public

defender for the petitioner was not made by the state’s attorney

until after the confession of August 30, 1947 had been procured.

The petitioner was given a warning against self incrimination

on the morning of his arrest and again was so warned just before

the procurement of the first and second confessions. The peti-

tioner contended in his state appeal that those warnings were

merely recitals to formalize constitutional requirements and_be-

came a cloak for an inquisitorial procedure pursued to wring these

confessions from him (Brief of petitioner in state appeal, p.

63-64).

The introduction into evidence of his two confessions com-

pelled the petitioner to take the witness stand in his own behalf

(R. 2243; State brief of petitioner, p. 66).

Petitioner contended in the state appeal that “proper authority”

before whom under the state law he was to be presented with

reasonable promptness, meant a court of law (Petitioner's state

brief, p. 19-20) and not a coroner.

The function of a coroner under state law concerns an inves-

tigation of the cause and manner of a death suspected of being

caused by the criminal act, omission or carelessness of another

(Section 473, G.S. 1949). In a proper case he communicates the

import of his finding to the prosecuting attorney (Section 478,

G.S. 1949) and files kis report with the clerk of the Superior

Court (Section 479, G.S. 1949). His inquest involves the taking

of testimony of the medical examiner and other witnesses deemed

necessary (Section 475, G.S. 1949). In connection with his

inquest, he may cause a person suspected of the crime to be ar-

10

rested and committed to jail or other proper place and take bail

or commit without bail under certain circumstances (Section 485,

G.S. 1949) but may not keep a person under arrest longer than

twenty-four hours after his finding (Sec. 485, G.S. 1949).

His functions and powers do not include the presentation be-

fore him of an accused on criminal charges for the purpose of

taking a plea or to furnish proof of probable cause or of a prima

facie case against him, or for the purpose of binding the accused

over to answer in the court having proper jurisdiction of the

crime. The coroner examines witnesses merely for the purpose

of making his report to the prosecuting attorney and clerk of the

court. The procedure connected with the inquest does not pro-

vide that a suspected person has the right to be confronted by

witnesses, examined by the coroner nor to cross examine any

such witness nor to present witnesses on his behalf (Title V,

Chap. 20, G.S. 1949). A coroner’s inquest under state procedure

is not necessary to the indictment or presentation of an accused

on criminal charges involving a homicide.

The deputy coroner is appointed by the coroner who is ap-

pointed by the judges of the Superior Court upon recommendation

of the state’s attorney (Sections 466, 468, G.S. 1949).

Petitioner presented as a principal issue in the state appeal the

claim that his conviction based upon his cenfessions used in evi-

dence violated the Due Process Clause of the Fourteenth Amend-

ment of the United States Constitution (State Brief, p. 1-2)

which was passed upon by the State Supreme Court of Errors

(R. 2249).

II

This Court Has Jurisdiction

The petitioner respectfully submits that this court has jurisdic-

tion of this petition for writ of certiorari under Title 28, United

States Code, Section 1257 (3), (formerly 28 U.S.C.A., Section

344 (b)), said petition being one to review the final judgment

_ ———,

. 11

of the Supreme Court of Errors of the State of Connecticut, in

a capital criminal case, rendered August 16, 1949, said state court

being the highest court in the state in which a decision could be

had.

A motion to reargue, filed August 25, 1949, being within the

time prescribed by the rules of practice (Section 399 as amended,

Practice Book, 1930) was denied October 5, 1949 and all reme-

dies in the state courts have been exhausted.

The judgment of the Supreme Court of Errors (R. 2252) con-

firmed the judgment of the Superior Court finding the petitioner

guilty of first degree murder and sentencing petitioner to death

(R. 7).

The federal questions have been carefully preserved in the

record. On trial, at the conclusion of the preliminary hearing

held to determine the admissibility of the confession of August

30, 1947, the petitioner claimed it was not admissible in evidence

because violative of the Due Process Clause of the Fourteenth

Amendment to the United States Constitution (R. 538). The

court overruled this claim and held the confession voluntary and

admissible (R. 587, 590). This ruling was made assignment of

error #49 in the state appeal (R. 731). The court also over-

ruled the objection of the petitioner that this confession was not

admissible in evidence to the jury (R. 1549-1551). This ruling

of the court was made assignment of error #48 in the state

appeal (R. 731).

On trial, at the conclusion of the preliminary hearing held to

determine the admissibility of the confession of September 3,

1947, the petitioner claimed that it was not admissible in evi-

dence because violative of the Due Process Clause of the Four-

teenth Amendment to the United States Constitution. This was

done by reference to the constitutional claims made in connection

with the first confession (R. 656, 663, 669). The court over-

ruled this claim and held the confession voluntary and admissible

(R. 673). This ruling was made assignment of error #51 in

the state appeal (R. 731). The court overruled the objection of

12

the petitioner that this confession was not admissible in evidence

to the jury (R. 1674, 1675). This ruling of the court was made

assignment of error #52 in the state appeal (R. 731).

In the appeal to the State Supreme Court of Errors, the peti-

tioner contended in oral argument and in his brief (State appeal

brief, p. 1, 60) that the circumstances under which the two con-

fessions were procured and their use in evidence against him

deprived him of his life and liberty without due process of law

in violation of the Fourteenth Amendment of the United States

Constitution. These constitutional claims were overruled by the

State Supreme Court of Errors (R. 2249).

Necessarily included in the decision on the constitutional issues

were the factors of the failure of compliance with the prompt

presentation statute, Section 54-h, C.S. 1945, and all illegal de-

tention because petitioner claimed, orally and in his state appeal

brief, the element of illegal detention as a factor to be considered

upon his constitutional claims (State brief, p. 60) and under the

rules of state appeal practice petitioner's brief was deemed a part

of his opening argument (Conn. Practice Book, p. 119, Sec. 405).

The opinion of the state Supreme Court of Errors is included

in the record (R. 2242-2251) and a certified copy of the peti-

tioner’s brief in the state court appeal is filed with this petition.

Ill

The Questions Presented

The questions presented to this court are:

1. Whether the conviction of the petitioner, based on all the

undisputed facts of the case, resulted from the procurement and

use of either or both of his confessions obtained under circum-

stances which should have barred their use against him because

violative of his constitutional rights as guaranteed by the Due

Process Clause of the Fourteenth Amendment of the United

States Constitution.

ee

13

2. This question presents the issue whether in confirming the

conviction, illegal detention based on the illegal warrant of the

coroner, the detention thereunder and the abuse of the coroner's

powers, should have been excluded as a factor in considering the

coercive character of the petitioner’s confessions used against him.

3. A further issue presented is whether the position of the

state Supreme Court of Errors was correct that because “the

situation previous to his (petitioner’s) appearance before the

deputy coroner can only be regarded as a remote circumstance,”

(R. 2247) all the circumstances previous to August 30, did not

need to be considered on the question whether there was any

illegal detention during this time thereby (a) excluding from their

consideration the question whether the coroner’s warrant of

August 23 was illegal and any detention thereunder illegal (R.

2245) and (b) excluding from their consideration all the circum-

stances prior to August 30th as factors upon the coercive char-

acter of the confession rendering them inadmissible because a

denial of due process under the Fourteenth Amendment of the

United States Constitution.

The questions present the issues whether the position of the

Connecticut Supreme Court of Errors is correct in holding :

(a) That there was no need to consider the petitioner's claim

that the coroner's warrant of August 23, 1947 was illegal and

petitioner’s arrest and detention thereunder illegal (R. 2245).

(b) That the presentation before the deputy coroner was

similar in legal effect to a presentation before a “committing

magistrate” under the rule followed in the federal courts that

a “coroner is a ‘committing magistrate’ ’’ and that the presenta-

tion before the deputy coroner was not “unreasonably delayed”’

and thereby holding by inference that the presentation of the

petitioner before the deputy coroner on August 30, 1947 was a

compliance with Section 54-h C.S. 1945 (R. 2248) and thus in

effect denying the petitioner's claim (State appeal brief p. 20-21)

that under Sec, 54-h C.S. 1945 he should have been presented

14

in the Meriden Municipal Court or the Superior Court with rea-

sonable promptness and prior to September 17, 1947.

(c) That the “situation” previous to the petitioner appearing

before the deputy coroner on August 30, 1947 can only be re-

garded as a “remote circumstance,” (R. 2247) upon the question

of the coercive character of the confessions.

(d) That “the most that can be claimed is that he (petitioner)

was not promptly returned to jail but was kept in the court house

until he himself had expressed the desire to make a statement,”

(R. 2248) to the claim of the petitioner that his confession of

September 3, 1947 was procured by State Police Captain Carroll

as a result of illegal detention due to petitioner’s failure to he

presented under section 54-h C.S. 1945 and of his failure to be

promptly returned to the county jail to be there confined in ac-

cordance with the directions of the warrant of August 30, 1947

of the deputy coroner which together with certain factors occur-

ing since his arrest which were still present rendered his confes-

sion not admissible in evidence.

(e) That because all the cases in the United States Supreme

Court dealing with the rule of the federal court barring the use

of confessions when violative of a speedy presentation statute

have concerned confessions made to police officers, “we doubt very

much that the federal court would apply it to an examination

made by a coroner in carrying out his statutory duties of inves-

tigating an untimely death” (R. 2247) and that therefore the

reasons for the barring of confessions under such federal rule do

not apply to the case of the coroner, or deputy coroner, conduct-

ing an inquest.

(f) That “neither the constitution of the United States nor

the constitution of Connecticut requires that one arrested for a

crime shall be promptly taken before a committing magistrate; all

they provide is that he shall have the right to ‘a speedy and public

trial.’ United States Constitutional Amendment VI; Connecticut

Constitution, Article I, Section 9” (R. 2248) in view of the Due

Process Clause of the Fourteenth Amendment to the United States

a —

15

Constitution and the provisions of Section 54-h, C.S. 1945 re-

quiring that a person arrested without a warrant be “presented

with reasonable promptness before proper authority,”

tioner claimed was a court of law and not a coroner.

which peti-

(g) That the “trial court was warranted in concluding” that

neither confession “was the result of any illegal detention or of

coercion, physical or psychological” (R. 2249) thereby approving

the trial court’s ruling made at the conclusion of the preliminary

hearings held to determine the voluntary character and admis-

sibility of the confessions in which the trial court ruled that there

was no illegality of detention either by virtue of the claimed

failure to be presented under Section 54-h, C.S. 1945, or by virtue

of the warrant of coroner Corrigan of August 23, 1947, in which

ruling the trial court stated that in the solution of the crime by

the various officers of the law “under the leadership and with

the coordination of the office of the state’s attorney” that the arrest-

ing officer “was not compelled by the provisions of Section 54-h

to wreck the investigation, to stand on some mandate or sanction

he felt compelled him to do something different from the senior

officers who were over him in this investigation ; that the disposi-

tion of the man, upon his being taken into custody and being

‘apprehended was finally determined by the coordinator of the

investigation, the state’s attorney, and if he was of the opinion

the investigation would be best served by indicating to his fellow

worker, the coroner, that a warrant should be issued, instead of

indicating to his fellow worker, the superintendent of the state

police, the man must be taken forthwith to Meriden, that action

on the part of the state’s attorney, that information to his fellow

worker, the coroner, transcended any other mandate in the law,

and the action of the coroner being in and of itself legal was

proper and the detention of Buteau from thenceforth under the,

provisions of that warrant was legal and proper (R. 667).

(h) That there were present in the instant case “no such

circumstances as have led the Supreme Court of the United

States to hold in certain cases that the conviction of accused

persons upon the basis of forced confessions they had made were

16

in violation of the Due Process Clause of the F ourteenth Amend-

ment of the United States Constitution” (R. 2249) and in deny-

ing the petitioner's motion to reargue (R. 2253-2254).

IV

Reasons Relied on for Allowance of Writ

1. A substantial federal question, not heretofore determined

by this court, presents itself as to whether an appearance by an

accused before a coroner or deputy coroner, for the purpose of

that official conducting an inquest is a compliance with a state

prompt-presentation statute so as to eliminate the failure of the

arresting officers or prosecutiong officials to have “presented”

the accused “with reasonable promptness before proper authority”

for a preliminary hearing on charges under a statute as one of

the material factors in considering whether circumstances result-

ing in the procurement and use in evidence of a confession denied

the accused the protection of the Due Process Cluase of the

federal Fourteenth Amendment. In this regard the case presents

the question also whether the scope of authority and function

of a coroner constitute him the proper type of magistrate before

whom a preliminary hearing on charges should be had within

the intendment of the protection afforded by the federal Due

Process Clause, in view of the existence of a state prompt-pre-

sentation statute.

2. A substantial federal question not heretofore determined

by this court presents itself with respect to the abuse of the power

of a coroner acting in concert with police and prosecuting officials,

in arresting and committing a person suspected of committing a

murder to the secret private custody of the state police for the

purpose of aiding the police to secure a confession and involving

the avoidance of a prompt-presentation statute, resulting in the

procurement and use in evidence of a confession in a conviction

in a capital case as being violative of the Due Process Clause of

the Fourteenth Amendment of the United States Constitution.

17

(a) This question presents the issue whether police officers

who have arrested without a warrant a person suspected of mur-

der and who, together with the prosecuting attorney involved

in the case, should present him with reasonable promptness before

proper authority under a state statute, for a preliminary hearing

on charges, which would have caused the accused to be detained

in a county jail pending indictment, may avoid and delay such

a preliminary hearing on charges and acquire the private secret

custody of the accused for interrogation purposes, by the concerted

and calculated action of the arresting police, the prosecuting attor-

ney and the coroner, until after the police and prosecuting attor-

neys have been able to exert their pressure to break the accused

under circumstances which would have been a denial of the

protection of the federal Due Process Clause so as to invalidate

any confession had the same been procured by the police and

then for said police and the prosecuting authorities to escape such

a consequence by having the deputy coroner afterward take the

statement of the accused in the course of an inquest, which may

be used as a confession under state practice, when the confession

so taken by the deputy coroner in connection with the inquest is

no less the fruit of the inquisitorial procedure on the part of the

police and prosecuting authorities and of the circumstances result-

ting in the making of the confession which would have barred

it in the first instance because constituting a denial of the right

guaranteed by the federal Due Process Clause.

(b) There is also involved in this question the abuse on the

part of the coroner, who is a nominee of the prosecuting attor-

ney in the case, acting in concert with the police and prosecuting

officials in yielding the accused to the private secret custody of

the police for the avowed purpose of extracting a confession and

then after many days of persistent questioning, while the accused

is without benefit of counsel, to have the deputy coroner. who is

the appointee of the coroner, take the confession in the course

of an inquest, which the deputy coroner had started ten months

previous to the arrest and had the right to start and complete,

which confession is then offered in evidence as the product of an

18

inquest legally and duly conducted by the deputy coroner, said

confession being held by the state Supreme Court of Errors to

have had only a “remote” connection with the events leading up

to and preceding the statement so taken by the deputy coroner

and thus approving a procedure whereby the police and prosecut-

ing officials and the coroner acting in concert utilize the inquest

of the deputy coroner as a cloak in procuring a confession under

circumstances which should have barred its use because denying

the protection of the federal Due Process Clause.

(c) Included in the foregoing is the claim that the coroner,

in issuing his warrant had no right to do so because he was not

conducting an inquest and that consequently the arrest and deten-

tion thereunder of the petitioner was illegal.

(d) Also contained in the foregoing is a substantial federal

question whether the combination of the procedures of the pelice,

prosecuting officials and coroner, as disclosed above, establishes

a criminal procedure in the state, in connection with the procure-

ment of confessions from an accused, which is inquisitorial in

nature and subversive of the accusatorial system of criminal jus-

tice as guaranteed by the Due Process Clause of the Fourteenth

Amendment of the United States Constitution.

3. The said Supreme Court of Errors of Connecticut, in the

above case, has decided a federal question of substance in relation

to the confession of August 30, 1947 of the accused, taken by

the deputy coroner, and in relation to his confession of September

3, 1947, taken by State Police Captain Carroll, in favor of the

respondent herein, by denying the petiiioner’s claim that they

were coerced and by holding both of said confessions to have been

voluntary and admissible in evidence and not violative of the Due

Process Clause of the Fourteenth Amendment of the United

States Constitution, which decision in affirming the conviction

of murder in the first degree is not in accord with the applicable

decisions of this court, including the following cases:

Watts v. State of Indiana, 338 U. S. 49, 69 S. Ct. 1347.

19

Turner v. Commonwealth of Pennsylvania, Be VU. &.

62, 69 S. Ct. 1352.

Harris v. State of South Carolina, 338 U. S. 68, 69

S. Ct. 1354.

Haley v. State of Ohio, 332 U.S. 596, 68 S. Ct. 302.

Malinski v. People of State of New York, 324 USS.

401, 65 S. Ct. 781.

Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S. Ct.

921.

Chambers v. State of Florida, 309 U.S. 227, 60 S. Ct.

472.

Wherefore, your petitioner prays that a writ of certiorari be

sssued ovtt of and under the seal of this Honorable Court, directed

to the Supreme Court of Errors of the State of Connecticut,

commanding that court to certify and to send to this Court for

its review and determination on a day certain, to be therein named,

a full and complete transcript of the records and all proceedings

in the case numbered and entitled in its docket, No. 3024, State

of Connecticut v. James Buteau and that the judgment of the

Supreme Court of Errors of the State of Connecticut may be

reversed by this Honorable Court, and that your petitioner may

have such other and further relief in the premises as to this Court

may seem proper.

Dated at New Haven, Connecticut, this 20th day of December,

1949.

James BUTEAU,

By Puitp R. Pastore,

Counsel for Petitioner.

Witi1am T. HOLieRAN,

New Haven. Connecticut,

Of Counsel.

Supreme Court of the United States

OCTOBER TERM, 1949

NO.

JAMES BUTEAU

Petitioner

Us.

STATE OF CONNECTICUT

Respondent

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI

I

Opinion of the Court Below

The opinion of the Supreme Court of Errors of the State

of Connecticut, which disposed of this case, has not yet been

officially reported. It is printed in the record (R. 2242).

II

Jurisdiction

(1) The judgment of the Supreme Court of Errors of the

State of Connecticut to be reviewed is dated August 16, 1949

(R. 2252). A motion to reargue, filed within the time prescribed

by the rules of practice, was denied October 5, 1949 (R. 2252).

21

(2) The jurisdiction of this court is invoked under Title 28,

United States Code, Section 1257 (3), (formerly 28 U.S.C.A.,

Section 344 (b)). The specific claims as to the jurisdiction of

this court are set out in the foregoing petition under the head-

ing II on Jurisdiction and are incorporated here by reference.

(3) The judgment of the Supreme Court of Errors (R. 2252)

confirmed the judgment of the Superior Court finding the peti-

tioner guilty (R. 7).

Ill

Statement of the Case

This has already been stated in the petition under I, Summary

Statement of the Matter Involved, which is hereby adopted and

made a part of this brief. Any necessary elaboration of the facts

involved will be made in the course of the argument.

IV

Specification of Errors Relied Upon

It is respectfully submitted that the Supreme Court of Errors

erred :

1. In holding that the confessions of August 30, 1947 and

September 3, 1947 of the petitioner were voluntary and admissible

in evidence and that their procurement and use against the peti-

tioner resulting in his conviction was not a violation of the Due

Process Clause of the Fourteenth Amendment of the United States

Constitution.

2. In holding that there was no need to consider whether the

warrant of the coroner, dated August 23, 1947 was illegal or

any detention of the petitioner thereunder illegal.

3. In holding that the appearance of the petitioner before the

deputy coroner on August 30, 1947 was a compliance with the

provisions of Section 54-h, C.S. 1945 requiring the petitioner to

22

be “presented with reasonable promptness before proper author-

ity.”

4. In declining to consider, whether under Section 54-h, C.S.

1945, the petitioner should have been presented with reasonable

promptness before a court.

5. In holding that when the petitioner’s confession of August

30, 1947 was taken by the deputy coroner that the petitioner

was not under illegal detention resulting from the failure to com-

ply with provisions of Section 54-h C.S. 1945 regarding presen-

tation and resulting from the illegal detention under the coroner's

warrant of August 23, 1947.

6. In holding that the circumstances and the situation exist-

ing as to the petitioner prior to August 30, 1947 was only a

remote circumstance in relation to the confession of August 30,

1947 taken by the deputy coroner.

7. In holding that when the petitioner’s confession of Sep-

tember 3, 1947 was taken by Captain Carroll that the petitioner

was not under illegal detention resulting from the failure to com-

ply with provisions of Section 54-h C.S. 1945 regarding presen-

tation and from the failure to comply with the directions of the

deputy coroner’s warrant of August 30, 1947.

Vv

Summary of Argument

A

The conviction of murder and sentence of death of the petitioner

resulting from the procurement and use in evidence against him

of confessions obtained under circumstances rendering them in-

admissible deprived the petitioner of life and liberty without due

process of law in violation of the Fourteenth Amendment to the

United States Constitution.

e—_— Aes

23

B

The confession secured by the deputy coroner was not admis-

sible in evidence because it was the result of a procedure, involv-

ing the abuse of the power of the coroner, the state police and

prosecuting officials, acting in concert, which was subversive of the

accusatorial system in the enforcement of criminal law and vio-

lative of the rights guaranteed under the Due Process Clause of

the Fourteenth Amendment to the United States Constitution.

VI

Argument

A

The Confessions Should Have Been Excluded

Reference is hereby made to the statement of undisputed facts

set forth in I, Summary Statement of the Petition, and is not

repeated here for the sake of brevity.

All the circumstances of the situation resulting in the procure-

ment and use in evidence against him of the confessions of the

petitioner denied him life and liberty without due process of law

in violation of the Fourteenth Amendment to the United States

Constitution.

Watts vs. State of Indiana, 338 U.S. 49, 69 S. Ct. 1347.

Turner vs. Commonwealth of Pennsylvania, 338 U.S.

62, 69 S. Ct. 1352.

Harris vs. State of South Carolina, 338 U.S. 68, 69

S. Ct. 1354.

Haley vs. State of Ohio, 332 U.S. 596, 68 S. Ct. 302.

Malinski vs. People of State of New York, 324 U.S.

401, 65 S. Ct. 781.

Ashcraft vs. State of Tennessee, 322 U.S. 143, 64 S. Ct.

921.

Chambers vs. State of Florida, 309 U.S. 227, 60 S. Ct.

472.

24

The procurement of the confessions was the result of the pres-

sure of the police and prosecuting authorities, aided by the coroner

who abused his powers of office, all acting in concert, until the

petitioner broke and yielded to the influences of the calculated

endeavor of these officials to obtain confessions from him to be

used to convict him.

Following his arrest at 2:30 a. mM. on Saturday, August 23,

he should have been presented for a hearing in the Meriden Muni-

cipal Court. This could have been done on the day of his arrest

or on any business day thereafter but was never done. This

would have been a presentation “before proper authority” under

Section 54-h, C.S. 1945. This is accepted procedure in order to

hold an accused until the Superior Court takes cognizance of the

charge against him.

State vs. Chin Lung, 106 Conn. 701, 720.

The petitioner could also have been presented, under Section

54-h C.S. 1945, in the Superior Court at New Haven, on the

day of his arrest or on any business day thereafter, upon an

information issued by the state’s attorney, for the purpose of hav-

ing the court order the petitioner held in custody until indictment

by a grand jury. Section 8764, G.S. 1949, State vs. Chin Lung,

supra, p. 719. Instead of being presented in court, the petitioner

was kept in the private secret control of the state police in the

Hartford state police barracks until 2:00 Pp. m. on the day of his

arrest during which time he was questioned by the state police

and a New Haven county detective who tried to get a statement

from him from 9:00 a. M. that morning, this being in addition

to the questioning between 3:00 a. M. and 5:00 a. M. earlier that

morning by state police and other officials in the police commis-

sioner’s office.

A presentation in either the Meriden Municipal Court or the

Superior Court on that morning would have resulted in the

petitioner being committed to the New Haven county jail where

he would have been confined pending indictment and trial. In

order to afford the state police and the state’s attorney and his

25

agents opportunity for the further questioning of the petitioner,

since he had in no way incriminated himself up to this time, a

warrant was obtained from the New Haven county coroner,

committing the petitioner, not to New Haven county jail, where

Berard, the petitioner's co-defendant was confined by him at the

same time, but to the Bethany state police barracks under a statute

authorizing a coroner to commit to “the county jail or other

proper place” a person suspected in connection with an untimely

death “in regard to which he (the coroner) is holding an inquest.”

This warrant was issued by the coroner at the request of the

state’s attorney and the petitioner was committed to the Bethany

state police barracks with the consent of the state police commis-

sioner.

The issuance of this warrant by the coroner was an abuse of

power because he was not conducting and did not conduct an

inquest in this case and because the issuance of his warrant was

not in connection with an inquest but, upon his own testimony,

for the purpose of aiding the police in their endeavor to secure

aconfession. The inquest had been started by the deputy coroner

who ultimately completed it.

Petitioner was confined to Bethany police barracks from August

23, 1947 to August 30, 1947 on the authority of the coroner’s

warrant and because of the illegality of this warrant and the

failure to present the petitioner before proper authority, under

Section 54-h during this period, his detention was illegal and an

important factor in the procurement of the confessions from him.

“To turn the detention of an accused into a process of

wrenching from him evidence which could not be extorted

in open court with all its safeguards, is so grave an abuse

of the power of arrest as to offend the procedural standards

of due process.” .

Watts vs. State of Indiana, 69 S. Ct. 1347, 1350.

“Detention without arraignment is a time-honored method

for keeping an accused under the exclusive control of the

police. They can then operate at their leisure. The accused

26

is wholly at their mercy. He is without the aid of counsel

or friends; and he is denied the protection of the magistrate.

We should unequivocally condemn the procedure and stand

ready to outlaw, as we did in Malinski vs. People of the State

of New York, 324 U.S. 401, 65 S. Ct. 781, 89 L. Ed. 1029,

and Haley vs. State of Ohio, 332 U.S. 596, 68 S. Ct. 302,

92 L. Ed. 224, any confession obtained during the period of

the unlawful detention. The procedure breeds coerced con-

fessions. It is the root of the evil. It is the procedure with-

out which the inquisition could not flourish in the country.”

Watts vs. State of Indiana, supra, p. 1351.

The denial of a prompt examining trial in violation of the

required state procedure “is a fact for consideration on an alle-

gation that a confession used at the trial was coerced. Cf. McNabb

vs. United States, 318 U.S. 332, 340; United States vs. Mitchell.

322 U.S. 65.”

Lyons vs. Oklahoma, 322 U.S. 596, 598.

This factor was also so considered in Watts vs. State of Indi-

ana, supra, in Turner vs. Commonweath of Pennsylvania, supra,

and Harris vs. State of South Carolina, supra.

The coroner is appointed by the judges of the Superior Court

upon the recommendation of the state’s attorney. Sec. 466 G.S.

1949. The deputy coroner is appointed by the coroner. Sec.

468 G.S. 1949.

On Sunday, August 24th, petitioner was confined in one of the

three cells in Bethany police barracks, the accommodations of

which cell consisted of a steel bunk, no mattress, no pillow and

one blanket, this being the same cell in which petitioner was

confined during his stay at the barracks. He was not questioned

on this Sunday.

On August 25th, the petitioner was taken by state police offi-

cers to Meriden, brought to the scene of the crime and then in

the company of police officers followed closely behind another

group consisting of the state police commissioner, state’s attorney,

27

assistant state’s attorney, the county detective and state police

officers whom Berard, being petitioner’s co-defendant, was guid-

ing over the route which they had taken the night of the crime.

Petitioner was questioned at the Bethany barracks by police

officers on this day both before and after the trip to Meriden for

almost four hours but did not incriminate himself in any way.

On August 26 and 27 petitioner was kept in his cell at Bethany

barracks incommunicado and the only person in the three-cell

block. No confession had yet been made by petitioner.

On August 27th, state police visited the petitioner’s home where

he lived with his mother, brother and sister, seeking information

about him and talked with the petitioner's sister who inquired of

the whereabouts of her brother and was falsely told they did not

know.

On the morning of August 23rd, state and Meriden police twice

visited the home of the petitioner to search it. They talked with

petitioner’s sister on both occasions but failed to disclose the peti-

tioner’s arrest. His family learned of the arrest in a noon radio

broadcast of August 23rd. Thereafter up to August 27th peti-

tioner’s sister failed to locate him despite her inquiries of the

Meriden police, the New Haven county jail, the deputy cononer

and state police and no member of the petitioner’s family knew

of his whereabouts until August 28th.

On August 28th, petitioner’s sister was brought to the

Bethany barracks by state police officers on orders of Captain

Carroll whose purpose in having her brought there was to urge

upon her to try to prevail upon her brother to give information

to Captain Carroll (R. 202). She told him she did not have

the influence over her brother that would make him say things

that Captain Carroll wanted him to say (R. 304-305). Petitioner

was questioned while his sister was present but made no incrim-

inating statements. The questioning continued for about one hour

after she left and during this interrogation petitioner admitted

for the first time that he had been in the store the night of the

crime (R. 535, par. 47). On this day the petitioner was ques-

tioned for a total of about five hours.

On August 29th Captain Carroll and a county detective arrived

at the Bethany barracks about 9:00 a. M. and questioned the

petitioner for about one hour and then brought him to the state’s

attorney’s office, New Haven, by previous arrangement with the

state’s attorney. Except for a short lunch period, petitioner was

held in the state’s attorney’s office from about 10:30 a. m. to 5:30

p. M. during which time he was questioned by the state’s attorney,

Captain Carroll, county detectives and was confronted with Ber-

ard, his co-defendant, who made accusations against him.

On August 29th, the state’s attorney and the deputy coroner

arranged for the petitioner to be examined by the deputy coroner

the next day when the confession of August 30th was taken. The

examination lasted over three and one-half hours, during which

a county detective connected with the state’s attorney’s office in

New Haven and a state police officer were present. At the con-

clusion of the hearing, the deputy coroner committed the petitioner

to the New Haven county jail but before he was brought there, two

county detectives, agents of the state’s attorney, brought the peti-

tioner to Meriden and met Captain Carroll by previous arrange-

ment and visited the various places connected with the crime and

transversed the route taken by the petitioner the night of the crime.

Any counsel of petitioner would have had the right to be

present at the hearing before the deputy coroner (Sec. 477 G.S.

1949). The regular public defender was disqualified from repre-

senting the petitioner because he was representing Berard the

co-defendant, whose interests conflicted with those of the peti-

tioner (R. 2037). While Captain Carroll and the assistant state’s

attorney were taking the petitioner from the Hartford police bar-

racks to the Bethany police barracks on August 23rd, they

learned of his intention to be represented by the public defender.

The state’s attorney made no effort until September 3rd, 1947

to have the Superior Court arrange for the appointment of a

— —a—

29

special public defender to represent the petitioner. Such appoint-

ment was not made until September 4, 1947.

On September 3rd, 1947 the petitioner who had appeared be-

fore the Superior Court in connection with the appointment of

counsel to represent him was not returned to the county jail at

noon when the hearing terminated but instead was kept in the

state’s attorney’s office until about 10 00 Pp. M., except for a time

when he was taken to dinner. Captain Carroll questioned the

petitioner between the hours of 3:00 p. m. and 6:00 Pp. Mm. and

between the hours of 8:00 p. m. and 10:00 Pp. M. took the con-

fession of September 3rd. This was done notwithstanding that

the prosecuting officials knew that the appointment of counsel

for the petitioner was imminent. While the petitioner was in

the state’s attorney’s office on this date being interrogated, he was

under illegal detention because he had not been presented before

proper authority under Section 54-h C.S. 1945 and because the

directions of the warrant committing him to the county jail were

being violated during all the time that he was in the state’s

attorney's office being questioned.

Petitioner submits that the procurement and use in evidence

of his confession of September 3 violated the Due Process Clause

of the Fourteenth Amendment of the United States Constitution

because it resulted from all the factors heretofore mentioned ren-

dering his first confession inadmissible and because of the ques-

tioning and trip to Meriden on August 30, after the taking of

his first confession, and because of the events and questioning in

the state’s attorney's office on September 3.

The petitioner’s appearance before the deputy coroner failed to

comply with Section 54-h C.S. 1945 permitting an arrest without

a warrant of “any person who such officer has reasonable grounds

to believe has committed or is committing a felony. Any person

so arrested shall be presented with reasonable promptness before

proper authority.” In a case not involving homicide, “proper

authority” can mean only a court because the coroner has no juris-

diction. To have it mean otherwise in a case involving homicide

30

would not afford the protection of a judicial hearing to an arrested

person involved in a homicide. The purpose of the statute js

similar to that underlying the federal rule laid down in McNabb

vs. United States, 318 U.S 332 at p. 343:

“Legislation such as this, requiring that the police must

with reasonable promptness show legal cause for detaining

arrested persons, constitutes an important safeguard—not

only in assuring protection for the innocent but also secur-

ing conviction of the guilty by methods that commend them-

selves to a progressive and selfconfident a

aims to avoid all the evil implications of secret interrogation

of persons accused of crimes.”

Section 239, G.S. 1930 referred to in the foot note, page 342

of the McNabb case as being legislation having a similar purpose

to the federal rule is the predecessor of Section 54-h, C.S. 1945.

Such presentation must be’ before a “proper judicial officer.”

6 C.J.S. Sec. 17 (b) p. 618.

The hearing of the coroner is not a judicial examination.

State vs. Coffee, 56 Conn. 399, 414. The function of a coroner

is to investigate the cause and manner of death that might be

caused by a criminal act, omission or carelessness of another.

Sec. 473, G.S. 1949; See also Secs. 475, 476, 478, 479, 480, 485,

486, G.S. 1949. He has power to arrest and commit any person

he has “good reason to suspect of having criminally caused the

death in regard to which he is holding an inquest . . .” but

may not keep any person under arrest longer than twenty-four

hours after his finding. Sec. 485, G.S. 1949.

The examination by a coroner of a suspected person does not

involve a presentation on any charges, no pleading is required or

permitted as in any preliminary examination in court under Con-

necticut criminal practice and the suspected person is not con-

fronted by nor may he cross examine, any witnesses being exam-

ined by the coroner nor may any such suspected person produce

any witnesses in his behalf. The coroner has no power to bind

——7_ —E

31

over a suspected person to any trial court. He adjudicates no

rights of the parties and lacks the fundamental powers character-

istic of a committing magistrate.

The judicial power of the state is vested in such courts as are

established by the legislature. Conn. Constitution, Art. V, Sec. 1.

The state police commissioner gave the petitioner a warning

against self incrimination on August 23rd but no incriminating

statement was made on that date. Petitioner made his first in-

criminating statement on the night of August 28 to Captain

Carroll when he admitted he was in the store the night of the

crime. This was the first fruit of the circumstances of his con-

finement, treatment and questioning and there was no warning

against self-incrimination on the evening of August 28. The

warning of the deputy coroner on August 30th and of Captain

Carroll on September 3, in connection with the confessions of

those dates, were but recitals to formalize constitutional require-

ment. Haley vs. Ohio, 332 U. S. 596, 601. The pressure of

police endeavors had by this time rendered these warnings but

empty phrases.

The present case includes factors and circumstances some or

all of which were present in other cases in which this court held

confessions to be not admissible because violative of the Due

Process Clause of the Fourteenth Amendment of the United States

Constitution.

In the present case, the first confession followed twenty-eight

hours questioning on five days within a period of seven days and

the second confession followed a total of 33 hours questioning on

six days over an eleven-day period. In the Ashcraft case, supra,

the confession followed 36 hours of questioning over one and one-

half days; in the Watts case, supra, after not less than 22 hours

of questioning over six days; in the Turner case, supra, after 21

hours questioning over four days; in the Harris case, supra, after

20 hours questioning over four days; in the Malinski case, supra,

after 10 hours questioning on one day; in the Haley case, supra,

32

after 5 hours questioning on one day and in the Chambers case,

supra, after many hours over a period of eight days.

In the present case, petitioner was not presented before proper

authority before the procurement of either confession although he

could have been on any of seven days before the first confession

and any of ten days before the second confession. In this regard,

it compares with the Watts, Turner and Harris cases where there

was no presentation before confessions. In the Ashcraft and

Haley cases wherein this court ruled the confessions inadmissible,

there was no opportunity to present before the confessions were

obtained.

Petitioner was held incommunicado, without counsel or friends,

except the sister’s visit in the presence of police officers on August

28, for seven days before the first confession and without benefit

of counsel until after the second confession. These elements are

present in most of the federal cases referred to above.

In the instant case, the illegal detention of the petitioner, based

on the violation of Sec. 54-h, on the illegal warrant of the coroner

and the wilful disregard on September 3 of the directions of the

warrant of the deputy coroner and on the collusive effort of the

police, prosecuting officials, and the coroner, was a material fac-

tor in bringing about the confession. In the Watts, Turner and

Harris cases, supra, this element was present and condemned as

a means of wringing confessions.

Assuming for argument, that the deputy coroner was “proper

authority” under Sec. 54-h, the appearance of the petitioner on

August 30th was not with “reasonable promptness” under this

section because the delay was the result of deliberate concerted

action on the part of the coroner, police and prosecuting authori-

ties to hold the petitioner until after he broke and confessed and

such designed evasion of the requirements of prompt presentation

of Sec. 54-h rendered the confessions inadmissible because a vio-

lation of the federal Due Process Clause.

33

If either confession used should not have been admitted in evi-

dence, it is reversible error even though petitioner may have tes-

tified in his own behalf or the evidence apart from the confession

might have been sufficient to sustain the verdict.

Malinski vs. New York, 324 U.S. 401, 404, 405.

Petitioner respectfully submits that his confessions were ob-

tained under circumstances which rendered them coercive and

made their use at his trial a denial of due process.

B

The Procedure Used to Obtain the Confessions Is

Unconstitutional

An examination of the opinion of the Connecticut Supreme

Court of Errors in this case shows that the statement given to

the deputy coroner, August 30, 1947, which later was used as a

confession against the petitioner, was ruled admissible because

it was given in connection with “an examination made by a cor-

oner in carrying out his statutory duty of investigating an

untimely death,” and that the “situation previous to his (peti-

tioner’s) appearance before the deputy coroner can only be re-

garded as a remote circumstance” (R. 2247).

This ruling excluded from their consideration the illegal de-

tention, questioning, treatment and circumstances affecting the

petitioner however coercive the situation before August 30, 1949

was or might have been, which should have been considered as

relevant and material factors in determining whether there was

coercion resulting in the petitioner's first confession and carried

over to the second confession.

The ruling renders admissible in evidence a statement taken

by a deputy coroner in the course of his statutory duties even

though the confession is the fruit of coercion on the part of the

coroner, police and prosecuting authorities prior to the deputy

coroner’s inquest which would have rendered such confession

inadmissible had it been procured by police officers.

34

This sanctions a procedure inquisitorial in nature, subversive

of the accusatorial system of administration of criminal justice,

which violates the protection guaranteed by the Due Process

Clause of the Fourteenth Amendment of the United States Con-

stitution.

Watts vs. State of Indiana, 69 S. Ct. 1347, 1350.

Whether such procedure meets the constitutional requirements

of the Due Process Clause is a matter of importance in the general

administration of criminal law.

Conclusion

It is respectfully submitted that this case should be reviewed

not only because the decision of the Connecticut Supreme Court

of Errors denies the petitioner life and liberty guaranteed to him

under the Due Process Clause of the Fourteenth Amendment

of the United States Constitution in a criminal prosecution for

homicide but also because the decision involves a serious aspect

in the administration of state criminal justice in a capital case

involving a death penalty in that the police, prosecuting official:

and coroner, acting in concert, combined to utilize illegally and

abusively the power of a corcaer given under a state statute to

arrest and commit a suspected person to a “proper place” as

an instrument to place the suspected person in the private secret

custody of the police for the avowed purpose of interrogation and

the procurement of incriminating disclosures.

The practical effect of the decision is to sanction a procedure

whereby the deputy coroner’s inquest is utilized by the police,

prosecuting authorities and the coroner, as a cloak to escape the

consequences of their inquisitorial conduct which would have

barred from evidence a confession if taken by the police following

such conduct.

Petitioner respectfully submits that for all the foregoing rea-

sons, the petition for a writ of certiorari should be granted to

review the violation of fundamental standards of procedure guar-

35

anteed by the Due Process Clause of the Fourteenth Amendment

of the United States Constitution.

Respectfully submitted,

Puitip R. Pastore,

205 Church Street,

New Haven, Connecticut,

Counsel for Petitioner.

Wiru1aM T. HOLvLeRAN,

185 Church Street,

New Haven, Connecticut,

Of Counsel.