Opinion
TTDCR160109743T
01-03-2019
STATE of Connecticut v. David N. BROWN
UNPUBLISHED OPINION
OPINION
Seeley, J.
The defendant, David N. Brown, was arrested on October 26, 2016 and initially charged with eleven counts of sexual assault in the first degree in alleged violation of General Statutes § 53a-70(a)(2), three counts of sexual assault in the fourth degree in alleged violation of General Statutes § 53a-73a(a)(1)(A) and two counts of risk of injury to a child in alleged violation of General Statutes § 53-21(a)(1). The state filed an amended substitute information on December 7, 2018 in which the defendant is charged with eight counts of sexual assault in the first degree, two counts of sexual assault in the fourth degree and four counts of risk of injury to a child. The complainant in this case is the defendant’s granddaughter, J.B. (DOB 6/21/00).
The defendant also was arrested in connection with alleged sexual criminal offenses against two other grandchildren in Docket Nos. TTD-CR16-0109742-T and TTD-CR16-0109757-T. The cases have not been joined for trial.
On December 5, 2018, the defendant filed a motion to suppress his oral and written statements made to Detective William Grady of the Vernon Police Department on October 4, 5, 11 and 12, 2016. The court held an evidentiary hearing on December 11, 2018. William Grady, who is now retired from the Vernon Police Department, testified at the hearing. At the hearing, three recordings of the defendant’s interactions with Grady were marked as exhibits, which the court subsequently listened to and viewed. The court heard oral argument on December 20, 2018. Based on the motion submitted and the argument held on December 20, 2018, the defendant is moving to suppress his statements based on two grounds: (1) that the defendant was not advised of his Miranda rights prior to the police contacts; and (2) that the statements of the defendant were involuntary.
Neither party submitted any evidence or argument regarding a police encounter with the defendant on October 11, 2016. Therefore, the court is addressing the defendant’s claims regarding the defendant’s statements made on October 4, 5 and 12, 2016.
FACTUAL FINDINGS
Based upon the credible evidence presented at the hearing held on December 2018, the court finds the following facts.
On October 4, 2016, William Grady, who was a detective with the Vernon Police Department at the time of the defendant’s arrest, went to the defendant’s residence as part of his investigation into sexual assault allegations made against the defendant by several family members. Around 3:00 p.m., Grady parked on the street in an unmarked sedan a few houses down from the defendant’s residence and waited for him to arrive home from work. At approximately 5:30 p.m., the defendant arrived at his residence. Grady drove his vehicle closer to the defendant’s residence and approached the defendant outside. He did not block the driveway with his vehicle. Grady also did not run at the defendant when he approached him. He identified himself as a detective with the Vernon Police Department and he told the defendant that he wanted to talk to him about a matter. Grady asked the defendant if he would be willing to go to the Vernon Police Department to be interviewed and the defendant agreed without hesitation. The defendant indicated that he wanted to go into his residence so he could tell his wife where he was going.
Grady did not tell the defendant that he had to go with Grady to the police station to be interviewed. Grady spoke calmly and did not act aggressively or in an intimidating manner. Grady remained in the doorway to the defendant’s residence and did not enter the house while the defendant had a conversation with his wife. Grady was dressed in plain clothes and he had a compact firearm in a holster on his left hip, although there was no evidence presented that the defendant saw the weapon. The gun was not displayed or used during this initial encounter. Grady did not search the defendant, he did not conduct a limited pat-down for weapons, and he did not restrain or touch the defendant in any way.
Grady and the defendant left the defendant’s house in Grady’s unmarked car and travelled to the Vernon Police Department, which took approximately three to four minutes. The defendant opened and closed the car door himself and he sat in the front seat. Grady did not turn on the lights or siren to his vehicle at any time. Grady did not lock the car doors. During the ride, they spoke about the defendant’s work and Grady did not ask any questions about the allegations. The defendant told Grady he was a teacher at the New England Tractor Trailer Institute.
Grady and the defendant entered the front door of the Vernon Police Department, rather than through the secured entrance of the sally port which is used to enter the police station by officers when they are transporting arrestees to the station. Grady and the defendant entered the secure section of the police station through a door that is locked from the lobby. However, that door is not locked on the inside and anyone who enters the secure section can leave without having to be electronically let out.
Grady and the defendant walked up the stairs to an interview room located on the second floor near the administrative offices. The room has two doors. The defendant sat in a chair next to a desk that was closest to the door leading to a hallway, while Grady sat closest to the door that went to the interior section. Grady provided the defendant with a glass of water. Both doors were closed during the interview, but they were not locked, nor were they blocked in any way.
Grady presented a written "Voluntary Interview Form" to the defendant and read it to him. This form had the following four statements/questions: "1. You are not under arrest. Do you understand this? 2. We have agreed to interview you at this location and you agree that you are willing to be interviewed here. Is this true? We have told you that you can terminate this interview at any time and leave. You fully understand what we have told you and we will not stop you if you decide to leave. Do you understand this and are you voluntarily submitting to this interview? 4. No promises or threats have been made to get you to this interview. Is this correct?"
After Grady read the form to the defendant, Grady told him to initial each question if he understood it. Grady then left him alone while the defendant reviewed the form. The defendant told Grady that he could read and write and he named the high school he attended. After each question, the defendant wrote yes and put his initials next to his response. Grady returned to the room and asked the defendant if he had any questions. The defendant asked for the time, Grady told him it was 5:49 and the defendant wrote that time on the form. The defendant also signed the form and dated it. The defendant was not advised of his Miranda rights.
Grady interviewed the defendant for approximately five hours regarding the defendant’s sexual interaction with minors. The defendant admitted to having illegal sexual contact and/or intercourse with five minors. The first two hours consisted of Grady asking questions and the defendant responding to the questions asked. Approximately ninety minutes into the interview, Grady asked the defendant if he needed a break to use the restroom and whether he wished to have crackers or anything else to drink. The defendant declined the offer to use the restroom and indicated he did not want anything to eat, but he asked for a soda. Grady left the defendant alone for about six minutes, and then he returned with some water and crackers. The defendant drank some water and eventually he ate some of the crackers.
After two hours of questioning, Grady indicated that he wanted to take a statement from the defendant. The defendant asked to use the restroom and Grady directed him to the restroom that was located in the public waiting room. After two minutes, both men returned to the interview room. Grady indicated that if the defendant wanted something to eat, he could order it from the diner since the department has an account there. The defendant declined Grady’s offer to order food.
At this point, Grady sat at a different desk in the interview room that had a computer on it and the defendant sat next to him. Grady asked him if he were willing to give a written statement, and the defendant said yes. The defendant also indicated he was giving the statement freely and he was not forced by anyone to give a written statement. Grady typed into the computer and asked the defendant clarifying questions. About one-half hour after Grady began typing the written statement the defendant asked for a soda. Grady provided him with a ginger ale. Approximately thirty minutes after receiving the ginger ale, the defendant left the interview room and went outside for a cigarette break for a few minutes. Once the defendant had finished his break, the defendant reentered the public lobby of the police department and asked the dispatcher to let him into the secure portion of the building.
Grady finished up typing the written statement and then reviewed the statement with the defendant. Grady read the entire written statement to the defendant from the computer screen while the defendant looked at the screen. During this process, the defendant requested several corrections and asked that certain information be added. Grady made the requested changes. The defendant reiterated that he was not under any pressure to give the written statement, the words used were his words, and Grady did not threaten him.
The defendant left the interview room to have another break outside where he smoked a cigarette and called his wife. When the defendant returned to the interview room, Grady had a copy of the written statement. Grady offered to provide him with a magnifying glass or read the written statement to him if he was not able to see it. The defendant indicated he could see the text of the statement that Grady had typed. He reviewed the statement page by page. The defendant requested that Grady make a correction, which Grady did. Before signing the statement, the defendant acknowledged that he understood he was not in custody and that the statement was given freely and without threat or promise.
During the interview, Grady never displayed any weapons or restraints, and he did not use or threaten to use any force during the interview. Grady spoke in a conversational tone and never raised his voice or spoke in an aggressive manner. The defendant did not appear that he was intimidated by Grady or the interview process. Grady did not use any coercive police interview tactics such as lying, making factual misrepresentations or making up evidence against him. Grady was the only person present with the defendant during the interview.
Based on his responses and statements during the interview, the defendant was alert and did not appear to have any cognitive or mental disability. The defendant did not appear tired or under the influence of alcohol or drugs. He did not indicate that he was tired or had difficulty understanding the questions. The defendant, who was seventy years old at the time of the interview, worked as an instructor at the New England Tractor Training School for sixteen years. He was well-spoken, emotionally stable and asked appropriate questions. At times he corrected Grady and clarified information. Grady primarily asked open-ended questions and repeatedly told the defendant he wanted to use the defendant’s own words and not put words in the defendant’s mouth. The defendant did not appear as if he wanted to terminate the interview at any time. After the defendant had reviewed and signed the written statement under oath, Grady gave a business card to the defendant. Grady then drove the defendant home.
The following day, October 5, 2016, the defendant called the police station and asked Grady to return his call. Grady did and recorded the conversation which lasted several minutes. The defendant asked Grady if he could recommend a psychiatrist and Grady indicated that he could not recommend anyone since he needed to remain neutral and just gather the facts. Grady asked the defendant about his wife and her reaction to the situation. The defendant sounded coherent and did not exhibit any signs of intoxication such as slurring his words. He did not indicate that he had any difficulty understanding the questions.
The defendant returned to the Vernon police department on October 12, 2016 at Grady’s request and submitted to another interview. The defendant drove himself to the police department. The interview took place in the same room as the interview that had occurred on October 5, 2016 and it was recorded. Only the defendant and Grady were present. The purpose of the interview was to investigate whether there were any additional unidentified complainants. At the beginning of the interview, Grady again presented and read to the defendant a written "Voluntary Interview Form." The defendant reviewed the form and signed and dated it. The interview lasted for approximately thirty-two minutes. The defendant was not advised of his Miranda rights.
During this interview, the defendant discussed his progress in obtaining a treatment provider and the adverse impact that the allegations were having on his wife. Grady asked follow-up questions and the defendant expressed his shame and remorse. No written statement was taken. Grady’s tone was calm and he did not display any weapons or restraints. He also did not use or threaten to use any force during the interview. The defendant appeared to understand Grady’s questions and provided appropriate responses. He did not appear tired or under the influence of alcohol or drugs. He did not indicate that he was tired or had difficulty understanding the questions. He did not request to terminate the interview prior to its conclusion. Once the interview concluded, the defendant left the interview room.
LEGAL DISCUSSION
A
Fifth Amendment Miranda Claim
As recognized by the United States Supreme Court, "[a]ny police interview of an individual suspected of a crime has certain coercive aspects to it, but "[o]nly those interrogations that occur while a suspect is in police custody, however, heighten the risk that statements obtained are not the product of the suspect’s free choice." (Citations omitted; internal quotation marks omitted.) J.D.B. v. North Carolina, 564 U.S. 261, 269-70, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011); see also State v. Castillo, 329 Conn. 311, 323, 186 A.3d 672 (2018); State v. Mangual, 311 Conn. 182, 191, 85 A.3d 627 (2014). In recognition of the inherent coercive nature of a custodial interrogation, the United States Supreme Court in Miranda adopted a set of prophylactic measures designed to safeguard the constitutional guarantee against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see also Howes v. Fields, 565 U.S. 499, 507, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012).
Therefore, prior to subjecting a suspect to police questioning, the suspect "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda v. Arizona, supra, 384 U.S. 444; see also J.D.B. v. North Carolina, supra, 564 U.S. 269. "It is well established that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." State v. Donald, 325 Conn. 346, 355, 140 A.3d 200 (2017).
In order to be entitled to Miranda warnings, a defendant bears the burden of establishing that he was in custody when he made the statements, and that he made the statements in response to police questioning. Id. Thus, two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. Id. The condition at issue in this case is whether the defendant was in custody during either of the interviews held at the police station on October 4 or 12, 2016, or during the telephone call on October 5, 2016.
The United States Supreme Court has recognized that" ‘custody’ is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion." Howes v. Fields, supra, 565 U.S. 508-09. The initial inquiry in determining whether a person is in custody for Miranda purposes is to learn whether "... in light of the objective circumstances of the interrogation ... a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave." (Citations omitted; internal quotation marks omitted.) Id., 509; see also State v. Castillo, supra, 329 Conn. 323.
A court must begin the custody analysis "by asking whether a reasonable person would have thought he was free to leave the police encounter at issue. If the answer is yes, the Miranda inquiry is at an end; the challenged interrogation did not require advice of rights." State v. Mangual, supra, 311 Conn. 194 n.12. The Connecticut Supreme Court recently emphasized that "... the test for whether an interrogation was custodial is an objective one. The subjective views harbored by either the interrogating officers or the person being questioned are irrelevant ... The test, in other words, involves no consideration of the actual mindset of the particular suspect subject to police questioning." (Citation omitted.) Id., 198 n.13.
However, if a reasonable person would not have thought he was free to leave, additional analysis would be required because not every seizure constitutes custody for the purposes of Miranda. In that case, "a court must ask whether, in addition to not feeling free to leave, a reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest ... Only if the answer to the second question is yes was the person in custody for practical purposes ... and entitled to the full panoply of protections prescribed by Miranda ." Id., 194-95 n.12. After all, "[a]ny lesser restriction on a person’s freedom of action is not significant enough to implicate the core fifth amendment concerns that Miranda sought to address." Id., 194-95.
In order to determine whether a reasonable person would have felt he or she was free to terminate the interrogation and leave, a court must examine "all the circumstances surrounding the interrogation." (Internal quotation marked omitted.) Howes v. Fields, supra, 565 U.S. 509. Relevant factors include "(1) the nature, extent and duration of the questioning; (2) whether the suspect was handcuffed or otherwise physically restrained; (3) whether officers explained that the suspect was free to leave or not under arrest; (4) who initiated the encounter; (5) the location of the interview; (6) the length of the detention; (7) the number of officers in the immediate vicinity of the questioning; (8) whether the officers were armed; (9) whether the officers displayed their weapons or used force of any other kind before or during the questioning; and (10) the degree to which the suspect was isolated from friends, family and the public." State v. Mangual, supra, 311 Conn. 197; State v. Castillo, supra, 329 Conn. 325; see also Howes v. Fields, supra, 565 U.S. 509.
The evidence in this case reveals that the defendant was not "in custody" for purposes of Miranda during any of the three encounters with Grady.
October 4, 2016 Interview at Vernon Police Department
First, and most importantly, during the interview conducted at the police station on October 4, 2016, Grady explained to the defendant that he was free to leave and that he was not under arrest. As recognized the Connecticut Supreme Court in Mangual, "the most obvious and effective means of demonstrating that a suspect has not been taken into custody ... is for the police to inform the suspect that an arrest is not being made and that the suspect may terminate the interview at will." (Citation omitted.) State v. Mangual, supra, 311 Conn. 204; see also Howes v. Fields, supra, 565 U.S. 515. (finding it "most important" that police told suspect several times he could leave whenever he wanted); State v. Greenfield, 228 Conn. 62, 69-70, 634 A.2d 879 (1993) ("an important factor in distinguishing a consensual encounter from a seizure is whether the police expressly informed the defendant that he was free to leave at the outset of the interview"); State v. Pinder, 250 Conn. 385, 413, 736 A.2d 857 (1999) (reasonable for a fact finder to determine that a reasonable person would feel free to leave when repeatedly told he could do so); State v. Bridges, 125 Conn.App. 72, 81, 6 A.3d 223 (2010) (same), cert. denied, 300 Conn. 931, 17 A.3d 68 (2011).
In this case, Grady presented the defendant with a written form entitled "Voluntary Interview Form" at the beginning of the interview. Grady read the form to him, and gave him an opportunity to review by himself. The defendant, who is a high school graduate and is employed as an instructor at the New England Tractor Trailer Institute, read the form and then initialed each line. He indicated that he understood each statement, including that he was not under arrest, that he would be permitted to stop the interview at any time and leave, that he was not threatened or promised anything, and that he agreed to be interviewed at the police station. The court finds that the fact that Grady informed the defendant he was not under arrest and could leave at any time is powerful evidence that a person in the defendant’s position would not reasonably believe that he was in police custody to the degree associated with a formal arrest.
Moreover, while Grady initiated contact with the defendant at his residence, he never issued any orders or directives that the defendant had to accompany him to the police station. Grady asked him in a calm voice if he would be willing to speak with Grady at the police station and the defendant agreed to do so without hesitation. Grady did not threaten or engage in any intimidating conduct. Grady arrived in an unmarked vehicle without lights or sirens, and he did not block the defendant with his vehicle. Grady was not wearing a uniform and he did not display, use or threaten to use his firearm. Grady did not search the defendant or even conduct a limited pat down search for weapons. The defendant opened the car door himself and he sat in the front passenger seat in the short ride to the Vernon police station. The defendant entered the front door of the police department, rather than in the locked area of the sally port. See, e.g., State v. Bridges, supra, 125 Conn.App. 81-84 (factors that properly supported trial court’s finding that defendant not in custody included defendant was not physically restrained, he was transported in the backseat of an unmarked car that did not have a cage separation, police lights or sirens were not used at any time, and no evidence that the detective displayed any weapons).
While the interview took place at the police station, the defendant voluntarily accompanied Grady from his residence to the police station. See, e.g., State v. Bridges, supra, 125 Conn.App. 81 (fact that defendant went with the detectives voluntarily supports a determination he was not in custody). Furthermore, Miranda warnings are not required "simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody." Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); see also State v. Edwards, 299 Conn. 419, 11 A.3d 116 (2011) ("a person, even if a suspect in a crime, is not in custody every time he is asked questions at a police station").
The doors to the interview room were closed for the majority of the interview, but they were not locked. The defendant was seated next to the door that went into the hallway and to the public area, and it was not blocked in any manner. As recognized by the Appellate Court, "[e]ven an interview in a closed door setting does not necessarily give rise to a determination that the interview was custodial in nature." State v. Bridges, supra, 125 Conn.App. 83; see also State v. Turner, 267 Conn. 414, 440, 838 A.2d 947 (mere fact that the defendant’s interview took place behind closed doors at the police station does not entitle the defendant to Miranda warnings"), cert. denied, 543 U.S. 809, 125 S.Ct. 36, 160 L.Ed.2d 12 (2004). Furthermore, although the defendant was in the secure portion of the barracks and up one flight of stairs, the door leading out of the secure section to the lobby was not locked. See State v. Angel C., 137 Conn.App. 84, 95-7, 46 A.3d 1020 (although interview occurred in a closed interrogation room at police department located up one flight of stairs with limited ingress and egress to the general public does not lead to a conclusion the defendant was in custody), cert. denied, 307 Conn. 916, 54 A.3d 180 (2012).
Additionally, in this case, the defendant was not physically restrained or subjected to police force or threats. The tone of the interview was conversational and Grady did not raise his voice or act intimidating in any way. Grady was the only police officer present during the interview. The defendant was offered food and drink several times, and he was given water, a soda and crackers. He declined Grady’s offer to order food from a local diner. Grady also did not use any type of ruse tactics or provide false information. At no time was the defendant placed in handcuffs or locked into a room. Grady did not display his weapon, and there is no evidence that the defendant was aware that Grady may have had a weapon during the interview. The defendant was not searched and he had access to his cellular phone at all times, which he used to call his wife during one of the outside breaks. The defendant was left alone in the interview room on at least two occasions, including one time for six minutes, and he could have used his cellular phone if he chose to do so.
As stated previously, the defendant was interviewed in the non-public section of the police station for approximately five hours, which means he was removed from the public, but he could have left that area at any time since the door to the lobby was not locked from the inside. See, e.g., State v. Pinder, supra, 250 Conn. 414 (although defendant was accompanied by officer while traveling between rooms, this does not rise to the level of restraint on movement). In fact, the defendant left the interview room on three occasions, went out into the public area of the police department, and then returned to the interview room. On one occasion, he used the restroom which was located in the public lobby, and on two other occasions, he went outside and smoked a cigarette. It was during one of the cigarette breaks that he called his wife on his cell phone.
The fact that the defendant was interviewed for approximately five hours does not necessitate the conclusion that a reasonable person would believe he could not leave, particularly in light of being told he could leave at any time and that he did leave several times and then return to the interview room, as well as the other factors present that have been discussed supra . Pinder, supra, 250 Conn. 414 (two-and-one-half-hour interview does not require a finding that a reasonable person would believe he was not free to leave when viewed in context of other factors); compare State v. Hoeplinger, 206 Conn. 278, 288, 537 A.2d 1010 (1988) (defendant in custody where he was interrogated for more than thirteen hours and never told he was free to leave); State v. Ostroski, 186 Conn. 287, 294, 440 A.2d 984 (defendant in custody where he was questioned for more than three hours and police repeatedly refused his requests to leave or to stop questioning), cert. denied, 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982). All of the objective facts are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave. Accordingly, since the defendant has failed to establish that he was in custody at the time of the challenged interrogation on October 4, 2016, Grady was not required to advise him of the Miranda warnings.
See, e.g., State v. Edwards, supra, 299 Conn. 433-34 (defendant not in custody where officers interviewed him at the police station in a room with the door closed, but unlocked, he was told he was free to leave, he was offered food and beverages, and he was left alone in the room with access to his cell phone); State v. Britton, 283 Conn. 598, 612, 929 A.2d 312 (2007) (defendant not in custody where he voluntarily accompanied the officers to the police station, he was not handcuffed or subjected to force, he was told he was not under arrest and that he could leave at any time and he was driven home after the interview concluded); State v. Turner, supra, 267 Conn. 438-39 (defendant not in custody where he voluntarily went to the police station, had been informed he was not under arrest and could leave at any time, had not been threatened in any way and was permitted to leave when the questioning concluded); State v. Atkinson, 235 Conn. 748, 760, 670 A.2d 276 (1996) (defendant not in custody where he voluntarily agreed to accompany the officers to the police station, he was not handcuffed or under arrest, the officers did not display or threaten the use of force, the officers did not show their weapons, the defendant was interviewed in a room with the door closed, but unlocked); State v. Rasmussen, 225 Conn. 55, 77, 621 A.2d 728 (1993) (defendant not in custody where he went voluntarily to the police station, he was given a glass of water at his request and permitted to contact his parents, he was not handcuffed or restrained in any way and he never asked to leave the barracks); State v. Marrero-Alejandro, 159 Conn.App. 376, 394, 122 A.3d 272 (defendant not in custody where he voluntarily accompanied the police to the station, the defendant was not handcuffed or restrained in any way, and officers told him he could leave at any time), cert. granted, 319 Conn . 934, 125 A.3d 207 (2015).
October 5, 2016 Telephone Call
The defendant also did not establish that he was in custody while he was having a telephone conversation with Grady on October 5, 2016. By calling Grady and requesting that Grady call him, the defendant initiated contact. Grady returned the telephone call. The defendant engaged in a short conversation with Grady which lasted several minutes. The defendant asking Grady for the names of mental health professionals and Grady asked the defendant about his wife and her reaction to the situation. The defendant could have hung up the telephone at any time. Based on the objective circumstances of the defendant’s telephone conversation with Grady on October 5, 2016, a reasonable person would have felt he was at liberty to terminate the telephone call. The defendant has failed to establish that he was in custody, and therefore, Grady was not required to give the defendant the Miranda warnings.
October 12, 2016 Interview at Vernon Police Department
Finally, the defendant did not establish that he was in custody during his interview with Grady at the Vernon Police Department on October 12, 2016. The defendant drove himself to the police department at Grady’s request and voluntarily submitted to an interview for approximately thirty-two minutes. Just as Grady had done during the initial interview, he explained to the defendant that he was free to leave and that he was not under arrest. Grady again presented the defendant with the written "Voluntary Interview Form." The defendant read the form and then initialed each line indicating he understood he was not under arrest, that he would be permitted to stop the interview at any time and leave, that he was not threatened or promised anything, and that he agreed to be interviewed at the police station.
Grady questioned the defendant in the same interview room that his first interview had been conducted and he was the only officer present during the interview. The doors to the room were closed, but not locked, and they were not blocked so the defendant easily could have exited. The defendant was not physically restrained, threatened in any manner or addressed in an intimidating manner. The tone of the interview was conversational and Grady did not make any misrepresentations or false statements to the defendant. Grady never displayed a weapon during the interview and no evidence was presented that the defendant was aware that Grady may have had a weapon. At the end of the interview, the defendant left the police station by himself.
Based on these factors, a reasonable person in the defendant’s position would not have believed he was in custody and not free to leave. See, e.g., State v. Doyle, 104 Conn.App. 4, 14, 931 A.2d 393 (defendant not in custody where he drove to the police station, officers told him he was free to leave and not under arrest, the door to the interior interview room was closed, but not locked, he was never restrained in any way, and he left the police station and drove himself home), cert. denied, 284 Conn. 935, 935 A.2d 152 (2007). Thus, since the defendant was not in custody, he was not entitled to the warnings constitutionally required by Miranda .
B
Due Process Voluntariness Claim
It is well-settled that any use in a criminal trial of an involuntary confession is a denial of due process of law. State v. Andrews, 313 Conn. 266, 321, 96 A.3d 1199 (2014). The state must prove the voluntariness of the challenged statement by a preponderance of the evidence. Id., 322. "[T]he test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined ... The ultimate test remains ... [i]s the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process ... The determination, by the trial court, whether a confession is voluntary must be grounded [in] a consideration of the circumstances surrounding it ....." Id., 321. The United States Supreme Court has held that "coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).
There are several factors the court can consider in determining the voluntariness of the statement, including: the defendant’s age, level of education, intelligence, experience with police, the lack of any advice as to his constitutional rights, level of intoxication, his emotional state, and the conditions under which the defendant was questioned such as repeated and prolonged questioning, the use of physical punishment, and deprivation of food and sleep. See State v. Andrews, supra, 313 Conn. 321-23; State v. Edwards, 299 Conn. 419, 442 n.19, 11 A.3d 116 (2011); State v. Chung, 202 Conn. 39, 49, 519 A.2d 1175 (1987). This inquiry centers upon both the conduct of the law enforcement officials in creating pressure, and the suspect’s capacity to resist that pressure. See, e.g., Mincey v. Arizona, 437 U.S. 385, 399-401, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (confession not voluntary where police interrogation of hospitalized suspect overwhelmed his free will); Davis v. North Carolina, 384 U.S. 737, 752, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966) (confession not voluntary due to repeated police interrogation of a jailed suspect held over a sixteen days). The Connecticut Supreme Court has recognized that "there is considerable overlap between the factors that courts should consider in determining whether a defendant is in custody for Miranda purposes and the factors that courts should consider in determining whether a defendant’s statements were voluntary." State v. Jackson, 304 Conn. 383, 421, 40 A.3d 290 (2012).
In considering the totality of the circumstances surrounding the defendant’s statements, this court concludes that the state has proven by a fair preponderance of the evidence that the defendant’s statements to Grady on October 4, 5 and 12, 2016 were voluntary. The defendant, who was seventy years old at the time, was a high school graduate and worked as a teacher at the New England Tractor Trailer Institute. He could read and write, as evidenced by his request to make corrections to the written statement. Based on his responses and statements during all three interviews, the defendant did not appear to have any cognitive or mental disabilities. The defendant did not appear tired or under the influence of alcohol or drugs, nor did he ever indicate that he was tired or had difficulty understanding the questions. The defendant did not appear that he was intimidated by Grady during any of their three interactions. He was articulate, emotionally stable and asked appropriate questions. The defendant never appeared as if he wanted to terminate any of the interviews.
Prior to being interviewed on both October 4, 2016 and October 12, 2016, Grady reviewed with the defendant the written form entitled "Voluntary Interview Form." The form informed the defendant he was not under arrest, that he was willing to be interviewed at the police department, he could leave at any time, and no threat or promises were being made. On each occasion, the defendant read the document, initialed each statement, and then signed and dated the form.
During the preparation of the written statement on October 4, 2016, Grady primarily asked open-ended questions and repeatedly told the defendant he wanted to use the defendant’s own words and not put words in the defendant’s mouth. Grady left the defendant alone so he could review the statement in privacy. The defendant made corrections and clarified information both during the initial interview and during the preparation of the written statement. During that lengthy interview, he was provided drinks, food and numerous breaks, during which time he used the restroom in the public lobby, he went outside by himself on two occasions and smoked cigarettes, and he used his cell phone. Notably, the defendant initialed the first sentence of the written statement which indicates that he gave the statement freely and without threat or promise.
While the defendant’s interview on October 4, 2016 was lengthy, it was not so unreasonable that it would result in an involuntary statement, especially in light of the other circumstances present, as discussed supra . See, e.g., State v. DeAngelis, 200 Conn. 224, 511 A.2d 310 (1986) (ten-and-one-half-hour police interview found to be voluntary); State v. Vazquez, 133 Conn.App. 785, 810-11, 36 A.3d 739 (three-hour interrogation reasonable), cert. denied, 304 Conn . 921, 41 A.3d 661 (2012).
During the interview held on October 12, 2016, the defendant never asked for anything to eat or drink. The defendant did not request permission to use a restroom or to have a break during that short interview, nor did he indicate that he was tired or had difficulty understanding the questions. Furthermore, the defendant drove himself to the police station.
Grady did not use any coercive police interview tactics during any of the three interviews. During the interviews on October 4 and 12, 2016, Grady did not display any weapons or restraints, and he did not use or threaten to use any force during any of the interviews. Grady always spoke in a conversational tone and never raised his voice or spoke in an aggressive manner. The defendant was not subjected to questioning by multiple police officers and Grady was the only person present with the defendant during the in-person interviews.
During oral argument, the defendant argued that when Grady told the defendant it would benefit him if he were open and honest, Grady was lying to him. This conduct, according to the defendant, caused his will to be overborne, which resulted in him giving an involuntary statement. This argument is without merit. See State v. Pinder, supra, 250 Conn. 424 (police statement encouraging suspect to tell the truth or statement that his cooperation will be made known to the court sufficient inducement to render a subsequent incriminating statement involuntary); State v. Wright, 76 Conn.App. 91, 818 A.2d 824 (same), cert. denied, 267 Conn . 911, 840 A.2d 1175 (2004); see also State v. Reyes, 81 Conn.App. 612, 617, 841 A.2d 237 (2004) (officer statement to defendant that he better tell the truth or he was going to do a lot of time in jail not coercive).
Thus, in considering the factors regarding the conduct of Grady in creating pressure, there is no evidence that Grady engaged in any conduct that would have overborne the defendant’s will to resist. Similarly, in reviewing the factors regarding the defendant’s capacity to resist any police pressure, the evidence shows that the defendant’s statements on October 4, 5 and 12, 2016 were the product of an essentially free and unconstrained choice by the defendant. There is no evidence that the defendant was in a weakened state such that his capacity for self-determination was critically impaired. Under the totality of the circumstances present in this case, Grady did not engage in coercive conduct and the defendant’s will was not overborne. The court finds that the state has proven by a preponderance of the evidence that all of the defendant’s statements to Grady were voluntary.
III
CONCLUSION
For the foregoing reasons, the defendant’s motion to suppress is denied.
SO ORDERED