Opinion
CR160167633
10-10-2018
STATE of Connecticut v. DaMarquis GRAY
UNPUBLISHED OPINION
OPINION
Vitale, Judge
The defendant, DaMarquis Gray, stands charged with, inter alia, Murder in violation of Connecticut General Statutes § 54a-54a(a), and Felony Murder in violation of Connecticut General Statutes § 54a-54c. The charges arise from events that are alleged to have occurred on January 20, 2014 in the area of 130 Eastern Street in New Haven. On September 17, 2018, the defendant filed a document captioned "Defendant’s Motion to Suppress His Statement to the New Haven Police." In his motion, the defendant requests that the court prohibit the state from introducing into evidence in its case-in-chief "the defendant’s audio taped statements on April 21, 2014 and April 23, 2014." The defendant further requests that the court preclude the state from introducing into evidence "any of the defendant’s statements to the police in the interview(s) that took place prior to the taping of his statements on the aforementioned dates."
In five separately numbered paragraphs, the defendant raised interrelated claims that have in common the general thesis that the statements were "involuntary" due to the defendant’s age, [and] inability "to comprehend the significance of his rights, thus precluding [a] voluntary, knowing, and intelligent waiver of his rights." He also claims that his "will to resist was overborne by police conduct." In addition, although not contained in his written motion, the defendant at oral argument asserted that the failure of police to comply with Connecticut General Statutes § 54-1o renders his statements inadmissible. The defendant did not submit any written material in support of the motion. The state objects to the motion and similarly did not submit any written material in opposition.
On September 25, 2018, the court conducted an evidentiary hearing on the motion. The state presented the testimony of Detective David Zaweski of the New Haven Police Department. The defendant DaMarquis Gray testified on behalf of the defense.
The court heard oral argument on the motion on September 26, 2018.
The court will address each claim specifically raised in the defendant’s written motion and later oral amendment to that motion, including the claim made under Connecticut General Statutes § 54-1o, and will address any claim specifically raised and argued by the defendant at oral argument.
There is no dispute that the defendant was in custody and interrogated by police.
In reaching its conclusions, the court has fairly and impartially considered all of the evidence received at the hearing, evaluated the credibility of the witnesses; assessed the weight, if any, to be given specific evidence and measured the probative force of conflicting evidence; reviewed all exhibits, relevant statutes, and case law; and has drawn such inferences from the evidence, or facts established by the evidence, that it deems reasonable and logical.
To the extent it is necessary to further amplify, the court’s credibility determinations for each witness were made, inter alia, on the basis of the conduct, demeanor and attitude of the witnesses as well as all the other factors relevant for each witness with respect to the credibility evaluation. See Lapointe v. Commissioner of Corrections, 316 Conn. 225, 268-71, 112 A.3d 1 (2015). Additionally, any other evidence on the record not specifically mentioned in this decision that would support a contrary conclusion, whether said evidence was contested or uncontested by the parties, was considered and rejected by the court. See State v. Edmonds, 323 Conn. 34 (2016).
For the reasons set forth below, the Motion is hereby denied.
Although the defendant’s written motion appears to raise a state constitutional claim, he has not presented a separate analysis of his claims under the state constitution. As a result, the court’s analysis is confined to federal constitutional claims. See State v. Faust, 237 Conn. 454, 465 n.10 (1996).
I. Findings of Fact
Based on the evidence and the reasonable and logical inferences therefrom, the court finds the following facts:
On January 20, 2014, New Haven Police were notified that a shooting had occurred on Eastern Street at approximately 1:03 p.m. Patrol officers were immediately dispatched to the area, and Detective David Zaweski arrived at Eastern Street at approximately 1:30 p.m. The victim was identified as Durell Law. Zaweski learned that the victim had been shot inside the courtyard of the Fairway Apartment Complex located nearby. The complex was also known colloquially as "The Skittles." The victim, although shot, managed to travel a short distance to Eastern Street where he collapsed in the road. A concerned citizen stopped, attempted to render aid, and called 911.
Police canvassed the immediate vicinity, and consequently were directed to 717 Russell Street. Two people, Joel Alexander and Arik Fraser, were lead out of the house and brought to the New Haven Police Department. 717 Russell Street is located approximately four houses north of the crime scene.
Durell Law had been shot a single time, with a bullet entering his back. Eastview Housing Complex, also known as Eastern Circle, is located in close proximity to the crime scene. Police acquired surveillance tapes from Eastview Housing Complex, which captured images of the exterior area of the complex at or near the time of the crime.
As the investigation into the death of Durell Law progressed, police developed information from witnesses that appeared to be inconsistent with accounts apparently provided by Joel Alexander to police. As a result of this additional information, police concluded that the defendant DaMarquis Gray may have been involved in the commission of the crime. Interested in speaking to the defendant, Detective Zaweski arrived at the defendant’s home on January 28, 2014. The defendant resided with his mother at 12 Bouchet Lane in New Haven, which is located within the Eastview Housing Complex. Zaweski spoke to the defendant’s mother who informed him that the defendant was then in custody at a juvenile "detention" facility in Middletown. Zaweski informed her that "[police] would be speaking to him in the coming weeks while he was probably still incarcerated." The defendant’s mother had no reaction to Zaweski’s statement and in fact indicated "she was ok with it- going to the facility and talking to him." Zaweski again contacted the defendant’s mother on February 14, 2014 to inform her that "[police] had not spoken to her son yet and that [they] would still be meeting with him to interview him." There is no evidence that the defendant’s mother ever voiced any objection to the planned interview or ever contacted police independently to voice an objection or concern. The defendant’s mother did not testify at the hearing on April 21, 2014. Detective Zaweski and Detective Bertram Ettienne arrived at the Juvenile Training. Center in Middletown, where the defendant was in custody. The defendant was in custody for matters unrelated to the homicide of Durell Law. Police arrived at the facility at approximately 10:30 a.m. Prior arrangements had been made for the visit with a staff member. Zaweski had earlier contacted a supervisor at the facility and advised him that police intended to interview the defendant on April 21st. The defendant was at the detention facility "serving a sentence" as a juvenile as the result of a criminal adjudication on March 4, 2014.
When Zaweski and Ettienne initially arrived at the facility, they met with Sargent Trammel. Trammel escorted them into the building and into an interview room. The interview room was adjacent to the "Visitor’s Center." The Visitor’s Center was a room measuring approximately "50 x 50," with adjacent and private interview rooms. The interview room measured approximately "8 x 10" and contained a table and three chairs. The interview room also contained a window which afforded a view of the larger "Visitor’s Center." The interview room also contained a door. The defendant was not in the interview room at the time police arrived. Zaweski and Ettienne were not armed nor carried cell phones. They were attired in suits with jackets and ties. Zaweski was in possession of an audio recording device. The audio recording device was battery operated. Zaweski did not bring an "audiovisual" recording device because at the time, the New Haven Police Department did not possess "portable" equipment of that nature. The facility itself also did not possess such equipment. Sargent Trammel left Zaweski and Ettienne in the interview room, and later returned with the defendant. The defendant was not shackled or handcuffed, and Sargent Trammel did not place his hands on the defendant. Zaweski and Ettienne also did not place their hands on the defendant.
Once the defendant entered the room, Zaweski identified himself and Ettienne by name and as members of the New Haven Police Department. The defendant at that point did not display any reaction to the presence of either Zaweski or Ettienne. The defendant at no point in the ensuing interaction with Zaweski and Ettienne indicated that he wanted to leave the interview room. He remained calm throughout his contact with them. Sargent Trammel was not in the interview room at any relevant point in time, but was seated in the "Visitor’s Center" within view of the defendant and police through the interview room window. The interview room door was closed at some point. Zaweski, Ettienne, and the defendant were seated. The defendant was sixteen years old as of April 21, 2014. His date of birth is March 27, 1998. Detective Ettienne asked the defendant whether he wished to call his mother prior to speaking to police, and he declined. Ettienne also asked the defendant if he wanted his mother to be present during the interview, and the defendant declined that opportunity as well. Ettienne however again asked the defendant if "he was sure" he didn’t want his mother present, and the defendant again indicated that he did not want his mother present for the interview.
Zaweski thereupon retrieved a New Haven Police Department document containing the language "16/17 year old juvenile warning/waiver." The words "New Haven Department of Police Service" appear in large, bold-faced letters at the center top of the page, with the name of the police chief located to the upper left. State’s Exhibit 114 is said document utilized by Zaweski. There are two "case numbers" on State’s Exhibit 114. Det. Ettienne intended to speak to the defendant about other unrelated matters in addition to the January 20, 2014 homicide of Durell Law. The bottom "case number" was associated with the homicide of Durell Law. Zaweski "began reviewing" the waiver form with the defendant at 10:40 a.m. There is no evidence as to how long the entire process of reviewing the form lasted. With regard to State’s Exhibit 114, Detective Ettieinne read the rights located at the top of the form to the defendant. The entire paragraph continuing the "Miranda rights" was read aloud by Ettienne to the defendant. Ettienne asked the defendant if he understood his rights, and the defendant indicated his understanding of same. Ettienne then asked the defendant to read the "Miranda rights" to himself, but first determined the defendant’s ability to read by having him read the first line of the "Miranda rights" audibly. The defendant did demonstrate an ability to read by reading the first line "out loud." He was then asked to finish reading the form to himself. He was instructed to read each of the single sentences under the caption "I have been advised" as well. The defendant did not ask any questions of police or manifest any difficulty in understanding any portion of State’s Exhibit 114. Once the defendant finishing reviewing State’s Exhibit 114, Zaweski informed the defendant that if he understood his rights but nevertheless wished to speak with the police, that he place his initials alongside each of the rights enumerated in single sentences under the words "waiver" and "I have been advised." He was also told to sign the bottom of State’s Exhibit 114 as well. The defendant placed his initials next to each individual right listed on State’s Exhibit 114, and signed the bottom of the form as well. The defendant agreed to speak to police, and never indicated a lack of comprehension of his rights. He did not request a lawyer or the presence of his mother, or the presence of any member of the Juvenile Training Center staff. The interview commenced thereafter. The defendant’s speech was at all times coherent and did not manifest an inability to understand any of the questions. The defendant’s responses to the questions by police had a contextual relationship and he did not demonstrate any confusion. Detective Ettienne began the interview first and spoke to the defendant about crimes unrelated to the Durell Law homicide. Ettienne spoke to the defendant for approximately "an hour and a half" about these unrelated matters. The defendant did not incriminate himself with respect to the matters he spoke to Ettienne about.
Zaweski did not have the audio recording device activated during Ettienne’s questioning due to the "unexpected (sic) length of the battery life and the capacity of the audio recorder" and "not knowing how long the interview was going to be." Once Ettienne completed his questioning of the defendant, Zaweski then indicated to the defendant that he wished to ask him some questions about the Durell Law homicide. The audio recorder was not immediately activated by Zaweski for this portion of the interview for the reasons described previously. Over a period of time, the defendant provided Zaweski with different versions of his knowledge of the circumstances of Durell Law’s death. These versions were memorialized in a police report later prepared by Zaweski, identified as State’s Exhibit 451. There is no evidence of the exact time the interview transitioned to the Durell Law homicide. Zaweski finally indicated to the defendant that his last version of the events regarding the Durell Law homicide "did not match up" with what police had learned to that point. It was at this juncture that the defendant provided his "final" version of the Durell Law homicide, culminating with the "final" version being audio recorded commencing at 2:11 p.m. Zaweski indicated to the defendant that he wished to record this "final" version, and the defendant agreed. In the audio recorded statement, the defendant acknowledged shooting Durell Law but for various reasons stated it was "an accident." The audio tape was also transcribed. State’s Exhibit 273 is the audio recorded statement of the defendant, and State’s Exhibit 274 is the transcript. The audio recorded interview lasted until 2:35 p.m.
Zaweski and Ettienne returned to the Juvenile Training Center on April 23, 2014 to conduct another interview of the defendant. Each was again in plain clothes and possessed no weapons. Zaweski possessed an audio recorder but not an audio visual recorder. Zaweski and Ettienne were escorted to the same interview room and the defendant was later brought to the room. The defendant was provided with Miranda warnings as contained in State’s Exhibit 116. Zaweski explained the form to the defendant. The defendant again declined the offer to have his mother present, and indicated he did not want to call her. Zaweski read the entire advisement of Miranda warning out loud. Accounting to. State’s Exhibit 116, the advisement process commenced at 12:37 p.m. The defendant was again instructed to read the first line "out loud," and then advised to read the rest to himself. The defendant was told that if he understood his rights and agreed to speak with police, to place his initials next to the enumerated rights in State’s Exhibit 116. The defendant placed his initials on the form and signed the bottom. He again agreed to speak with police. The waiver was signed at the bottom of the page by the defendant as well. There is no evidence as to how long the advisement and waiver process lasted. Once again, the entirety of the interaction between police and the defendant was not audio recorded for the reasons previously described. Zaweski activated the recording device at 1:19 p.m. and the recording concluded at 1:31 p.m. Following the advisement of rights, Zaweski provided the defendant with a series of photographs obtained from the video surveillance camera located at the Eastview Housing Complex and interviewed him with respect to the images and individuals depicted therein. The defendant identified himself as well as other individuals in said photographs. He signed his name as well to the images. The audio recording reflects an affirmation of the foregoing process that Zaweski described. State’s Exhibit 275 is a transcript of the second interview.
Zaweski was unable to identify the actual recording capacity of the audio recorder. He estimated it "was more than an hour," but beyond that could offer no further opinion. Additional facts will be provided as needed.
II. Was There a Knowing and Voluntary Waiver of MIRANDA Rights
The defendant’s written motion alleges, inter alia, that due to the defendant’s "tender years," "the defendant was not provided with a clear understanding of his rights including the right to remain silent," and concomitantly, this lack of "comprehension" precluded a voluntary, knowing, and intelligent waiver of his rights.
"To be valid, a waiver must be voluntary, knowing and intelligent. Miranda v. Arizona, supra, 384 U.S. 475, 478, State v. Gonzalez, 206 Conn. 213, 217, 537 A.2d 460 (1988); State v. Boscarino, 204 Conn. 714, 743, 529 A.2d 1260 (1987). The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. State v. Hernandez, 204 Conn. 377, 395, 528 A.2d 794 (1987); State v. Chung, 202 Conn. 39, 48, 519 A.2d 1175 (1987); State v. Smith, 200 Conn. 465, 481, 512 A.2d 189 (1986). Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); State v. Chung, supra, 202 Conn. 48. (Internal quotation marks omitted.) State v. Stanley, 223 Conn. 674, 686, 613 A.2d 788 (1992).
Generally, "in the ... context of Miranda rights ... a juvenile is not per se incompetent to waive his or her right to remain silent ... As a matter of federal constitutional law, the interrogation of a juvenile may proceed if, on the basis of the totality of the circumstances, a valid waiver of Miranda rights occurs." (Citation omitted.) In re Manuel R., 207 Conn. 725, 736 n.6, 543 A.2d 719 (1988). "[O]ur Supreme Court repeatedly has held that an individual’s minority is only one factor in the totality of circumstances." State v. Spyke, 68 Conn.App. 97, 104, 792 A.2d 93, cert. denied, 261 Conn. 909, 804 A.2d 214 (2002). "The totality of the circumstances test applicable to the waiver by a juvenile of his Miranda rights involves inquiry into the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights ... Additional sources of inquiry include experience with the police and familiarity with the warnings, ability to read and write in the language used to give the warnings, any intoxication, the juvenile’s emotional state, and any mental disease' disorder or [disability]." (Citations omitted; internal quotation marks omitted.) State v. Perez, 218 Conn. 714, 728, 591 A.2d 119 (1991). Moreover, the absence of a specific warning that a juvenile defendant may be charged as an adult does not prevent a defendant from waiving his or her Miranda rights. Id., 725-26.
The court discussed the absence of a minor defendant’s parent in State v. Whitaker, 215 Conn. 739, 578 A.2d 1031 (1990). The defendant- seventeen at the time of the interrogation- argued that because his request to call his mother was refused, the waiver of his Miranda rights was not knowing and voluntary. Id. The court noted that "[w]e have never held that a minor in custody has the right to contact a parent, nor that contact with a parent is required before a minor can effectively waive his Miranda rights." Id., 747-48. "We ... decline to hold that a seventeen-year-old charged with murder must be afforded an opportunity to contact a parent before making a valid waiver of his rights to silence and counsel." Id., 749. "Unless he was actually requesting the assistance of counsel, the defendant had no constitutional right to interrupt the interrogation to talk to his mother. There is no Fifth Amendment right to parental advice." Id., 750. The court then reaffirmed that "[t]he defendant’s request to telephone his mother is only one element of his larger argument that his waiver of rights was involuntary." Id., 752-53.
In Ricks v. Commissioner of Correction, 98 Conn.App. 497, 909 A.2d 567 (2003), the court also rejected the minor defendant’s argument that his waiver was invalid because his mother was not present. "The petitioner stresses the fact that he was only sixteen years old at the time of his arrest, and that his mother was not present when he waived his Miranda rights and gave his written statement. In particular, he argues that his confession was involuntary and could have been suppressed on those grounds ... Although age is a factor to be taken into account in determining whether a statement is voluntary, it is only one of many factors, and a court must consider all of the circumstances surrounding the making of the statement ... At sixteen years of age, the petitioner is considered legally competent to make a confession, and the absence of his mother at the time he gave it does not render his statements inadmissible." (Citations omitted; footnote omitted.) Id., 514-15.
In State v. Canady, 297 Conn. 322, 998 A.2d 1135 (2010), the court rejected the minor defendant’s argument that a statement made to a juvenile detention officer should not be admissible. First, the court disagreed with the defendant’s argument that his statements were inadmissible under General Statutes § 46b-137(a). Id., 328-34. Consistent with precedent holding that § 46b-137(a) applies only to proceedings in Juvenile Court, the court determined that because "the defendant’s trial in criminal court cannot be considered a proceeding concerning a delinquent child ... it falls outside the scope of § 46b-137(a)." (Emphasis in original.) Id., 332. Ultimately, the court in Canady determined that the officer "did not subject the defendant to interrogation for purposes of Miranda, and, therefore, the defendant was not entitled to an advisement of his Miranda rights prior to making his statement to [the officer]." Id., 334-35.
"[A]n express written or oral statement of waiver of the right to remain silent is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case ... [and] in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated ... Although mere silence of the accused is not enough to establish waiver ... the record need not show a specific expression of the relinquishment of rights." State v. Cushard, 164 Conn.App. 832, 839 (2016). (Citations omitted.) "Miranda specifically required that the police inform a criminal suspect that he has the right to remain silent and that anything he says may be used against him. There is not qualification of the broad and explicit warning State v. Foreman, 288 Conn. 6 & 4, 699 (2008) (Internal citations and quotation marks omitted).
In the context of Miranda waivers, our Supreme Court has stated that "[t]he waiver must be made voluntarily and ‘with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.’ " State v. Usry, 205 Conn. 298, 305, 533 A.2d 212 (1987), quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Like the waiver of any other right or privilege, "[t]he question of waiver [in the Miranda context] must be determined on the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." (Internal quotations marks omitted.) State v. Usry, supra, 305. As the United States Supreme Court explained in Moran v. Burbine, supra, 421, "[t]he inquiry has two distinct dimensions ... First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." (Citations omitted; internal quotation marks omitted.)
The court’s discussion begins with the recognition that the defendant was advised of his Miranda warning immediately prior to each interrogation, and waived those rights in writing. In that vein, the court credits the testimony of Detective Zaweski that on each occasion, the Miranda warnings were administered orally by police as contained in State’s Exhibits 114 and 116. The defendant was then afforded the opportunity to read each form after first demonstrating his ability to read. There was no evidence presented as to any claim of mental or physical infirmity afflicting the defendant, nor was any evidence presented that he at any point exhibited signs of being under the influence of alcohol, drugs, or medication. At no point during either interview, did the defendant request an attorney, his mother, or the interview to cease. See State v. Wright, 79 Conn.App. 97, 108, cert. denied, 267 Conn. 911 (2003). (Considering the totality of the circumstances, "[a]t no time did the defendant reveal that he did not understand his circumstances or that he had difficulty communicating with the officers.) Although the defendant was sixteen at the time of the interview, age alone is not dispositive with respect to this issue. The defendant had numerous, separate contacts with police unrelated to the Durell Law homicide prior to April 2014. The earliest such contact occurred in 2011, and contacts continued until 2014. Apparently, in certain of said matters, he appeared in Juvenile court. He was not a neophyte in connection to interaction with police. In fact, he was "serving a sentence" in juvenile detention at the time of the police interviews, a circumstance that obviously had required appearances in juvenile court. The police were satisfied prior to each interview that the defendant appeared to read the Miranda warnings and understand them. The warnings had also been administered orally.
The court takes judicial notice of the fact that Practice Book § 30a-1(b) states that, in connection with an initial plea hearing in a delinquency proceeding, the judicial authority shall advise a child or youth of rights commonly associated with Miranda warnings.
There was no evidence presented that called into question the defendant’s level of intelligence. State’s Exhibit 451 reveals that the defendant had completed the eighth grade and was at the time of the interview apparently a freshman in high school (ninth grade). State’s Exhibit 451 further reveals that the defendant’s vocabulary does not demonstrate any deficit. His language followed a logical sequence and the concepts he discussed relate contextually to the questions asked. There is no persuasive evidence that the defendant lacked the capacity to understand and knowingly and voluntary waive his Miranda rights. His demeanor during the audio recorded statements suggests that he is intelligent. As previously noted, the defendant initialed each separate line appearing under the "waiver" section of State’s Exhibits 114 and 116, and an acknowledgment on said forms that he had been advised of his rights. He further signed his name under the section of the form that indicated that he "was willing to answer questions." Importantly, State’s Exhibit 451, a taped recording of the defendant’s interviews, contains an express oral statement by the defendant, on the occasion of each interview, acknowledging that he received and also read the Miranda warnings and had agreed to speak with police. The defendant additionally in each statement acknowledged that he was afforded the opportunity to contact his mother and have her present. The defendant rejected each option. The court rejects all of the defendant’s claims to the contrary, including those claims related to his receipt and understanding of Miranda warnings.
The court concludes that under the totality of the circumstances the state has proven by a preponderance of the evidence that the defendant received and understood his Miranda rights, and further that he knowingly, voluntarily, and intelligently waived them. State v. Reynolds, 264 Conn. 1 (2003); State v. Foreman, 288 Conn. 684 699 (2008).
III
Voluntariness of the Statements to Police Under the Due Process Clause
The nature of the defendant’s claims in paragraphs two through five of his written motion, together with the claims advanced in connection thereto at oral argument, constrains the court to consider them together as a general attack on the voluntariness of each of the defendant’s statements. The state is required to prove the voluntariness of a confession by a preponderance of the evidence. State v. Lawrence, 282 Conn. 141, 177 (2007).
"Coercive police activity is a necessary predicate to finding a statement is not voluntary within the meaning of the due process clause." State v. Pinder, 250 Conn. 385, 418-24 (1999).
"We have stated the 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 ... Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he was 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." State v. Reynolds, 264 Conn. 1, 54-55 (2003). (Internal citations omitted.)
The court must determine whether the questioning, under the totality of the circumstances, crossed constitutional boundaries that render the defendant’s statements involuntary.
Interrogation methods including trickery and deception are permissible unless the technique is so extreme or inappropriate as to render the confession involuntary. State v. Lockhart, 298 Conn. 537, n.17 (2010). For example, statements by police designed to lead a suspect to believe that the case against him is strong are a common investigative technique and would rarely, if ever, be sufficient to overbear the defendant’s will and to bring about a confession to a serious crime that is not freely self-determined. State v. Doyle, 104 Conn.App. 4, 17, cert. denied, 284 Conn. 935 (2007). In State v. Wright, 76 Conn.App. 91, cert. denied, 267 Conn. 911 (2004), the court held that "encouraging a suspect to tell the truth ... does not, as a matter of law, overcome a confessor’s will ... neither is a statement that the accused’s cooperation will be made known to the court sufficient inducement so as to render a subsequent incriminating statement involuntary." See also State v. Reyes, 81 Conn.App. 612, 617 (2004) (upholding determination defendant’s statement was voluntary, finding officer’s statement to the defendant that "[he] better tell the truth or [he] was going to do a lot of time in jail" was not coercive); State v. Houghtaling, 155 Conn.App. 794, 828, cert. granted on other grounds; aff’d 326 Conn. 330 (2017) (upholding determination defendant’s statement was voluntary, finding officer’s statements to the defendant "This is what we have here: you’re the homeowner, you denied it, we has to chase you up the street to get you to stop ... one way or another you’re going to jail. You can have your side on paper or not. It’s up to you" was not coercive).
The court observes first that the defendant was advised of his Miranda rights immediately prior to each interrogation, and waived these rights in writing. He had also prior experience with the police and the juvenile court system. "A warning at the time of interrogation is indispensable to overcome its pressures and to ensure that the individual knows he is free to exercise the privilege at that point in time." State v. Correa, 241 Conn. 322, 338 (1997). "Coercive police activity is a necessary predicate to finding a statement is not voluntary within the meaning of the due process clause." State v. Pinder, 250 Conn. 285, 418-24 (1999). "Ordinarily, a court will deem a statement or confession involuntary only if there is some coercive police conduct that is causally related to it." State v. Reynolds, 264 Conn. 1, 54 (2003). There is an "essential link between coercive activity of the state, on the one hand, and a resulting confession by a defendant, on the other." Colorado v. Connelly, 479 U.S. 157, 165 (1986). The determination of whether a confession is voluntary must be based on a consideration of the totality of the circumstances surrounding it, including both the characteristics of the accused and the details of the interrogation. State v. Andrews, 313 Conn. 266 (2014).
"Factors that may be taken into account upon a proper factual showing include the youth of the accused; his lack of education, his intelligence, the lack of any advice as to his constitutional rights, the length of detention; the repeated and prolonged nature of the questioning, and the use of physical punishment, such as the deprivation of food and sleep ..." Andrews, at 322. There is no evidence that the defendant requested food or water and was denied such request.
State’s Exhibit 453 reveals that the tenor of the interview by Detective Zaweski was polite low key, and conversational. There is no credible evidence of threats or physical conduct on the part of police directed to the defendant. During the interview connected with the Durell Law homicide. Zaweski was the only officer asking questions. The interview room was adjacent to a large "Visitor’s Center" which was observable through a window in the interview room. There is no evidence that the defendant’s mental acuity was affected or influenced in any way at any point in the interview. With respect to the total length of time involved in each of defendant’s contact with police on April 21st and April 23rd, (approximately four hours and one hour respectively), our courts have addressed the mixture of length of detention and length of interview with regard to the voluntariness of a confession. See e.g. State v. Abreu, 106 Conn.App. 278, 293, cert. denied, 286 Conn. 919 (2008) (statement voluntary where defendant in police custody for approximately twelve hours and interviewed by police for approximately one hour before giving his written confession); State v. DeAngelis, 200 Conn. 224 (1986) (Ten-and-one-half-hour police interview found voluntary); State v. Carter, 189 Conn. 631 (1983) (eight-hour period of detention before having given third confession, although substantial, does not remotely approach the length of those interrogations held to be so objectionable on that ground among others as to warrant reversal of a finding by a trial court that a confession was voluntary); State v. Bell, 93 Conn.App. 650 (2015) (detention for six hours before interview lasting one and one-half hours not sufficient to render statement involuntary); State v. Vasquez, 133 Conn.App. 785, 810-11; cert. denied, 304 Conn. 921 (three-hour interrogation reasonable).
The defendant was in juvenile detention and serving a sentence. The court under the totality of the circumstances is not persuaded the length of the respective interviews rendered either resultant statement involuntary.
The defendant vigorously asserts that the mere fact of the defendant’s "tender years" the statements involuntary. Age is but one factor, and for the reasons previously articulated, and in Section II above, the court is not persuaded. See also State v. Griffin, 77 Conn.App. 424; aff’d. 273 Conn. 266 (2005) (statement of fourteen-year-old defendant in murder prosecution found to be voluntary). The credible evidence demonstrates, and the court finds, that the defendant’s decision to speak with police was a free and deliberate choice by him uninfluenced by any intimidation or coercion.
The court has considered all of the factors described in State v. Andrews, supra at 332. The nature and length of the questioning is not, in the court’s view, appreciably different than time periods previously deemed insufficient to render a statement involuntary. The court finds, the defendant’s age not withstanding, under the totality of the circumstances, the defendant’s will was not overborne and that his statement was voluntary and not casually related to any claimed coercive activity by police. Therefore, the court finds that the state has proven the voluntariness of the defendant’s statement by a preponderance of the evidence.
The court observes that nothing in the defendant’s written motion or assertions made at oral argument, advanced any claim related to the adequacy of the Miranda warnings at issue with regard to the defendant’s potential prosecution as an adult, or any claim that a parent or guardian was required to be present at the interviews or statements. In addition, such issues were not briefed. Indeed, when afforded the opportunity, the defendant at oral argument stated that "case law says [the defendant] has the right and ability to reject calling his parents. Consequently, the court deems any of such claims as they may relate to Sections II and III above, to have rejected and waived by the defendant." See State v. Saucier, 283 Conn. 207, 222 (2007); State v. Perez, 218 Conn. 714 (1991); State v. Castillo, 329 Conn. 311 (2018); State v. Canady, 297 Conn. 322 (2010).
IV. Whether the Defendant’s Statements Are Precluded by Connecticut General Statutes § 54-1o
General Statutes § 54-1o(b) provides: "An oral, written or sign language statement of a person under investigation for or accused of a capital felony or a class A or B felony made as a result of a custodial interrogation at a place of detention shall be presumed to be inadmissible as evidence against the person in any criminal proceeding unless: (1) An electronic recording is made of the custodial interrogation, and (2) such recording is substantially accurate and not intentionally altered." An "electronic recording" is defined as "an audio visual recording made by use of an electronic or digital audio visual device." General Statutes § 54-1o(a)(5).
Prior to the statute’s enactment, case law noted that "it is apparent that the risk of a false confession is appreciably greater in cases of juveniles and persons with mental disabilities. Because children and mentally disabled persons are especially vulnerable to police overreaching- and because it appears that they also are more likely than others to confess falsely even in the absence of improper government coercion- videotaping confessions by such persons would serve an especially salutary purpose." State v. Lawrence, 282 Conn. 141, 185, 920 A.2d 236 (2007) (Palmer, J., concurring). The Supreme Court also suggested that, to limit the scope of such a statute, "the rule could apply only when police officers are interrogating suspects within Connecticut or only when police officers are interviewing juveniles." State v. Lockhart, 298 Conn. 537, 570-71, 4 A.3d 1176 (2010). Nevertheless, the statute makes no specific reference to juveniles, nor does there appear to be a statute specifically addressing the electronic recording of interrogations involving children. Additionally, there is no Connecticut Appellate Court decision that addresses the meaning of the statute. The court further observes that the interviews in question occurred only four months after the effective date of the statute.
Nothing in the legislative history appears to address children or juveniles specifically, though there is mention of the applicability of the statute to individuals with mental disabilities.
Thus, Connecticut General Statutes § 54-1o (the "statute") mandates the audiovisual recording of custodial interrogations in cases involving serious crimes. The court has previously in Sections I, II and II above generally described the factual issues relevant to the determination of whether any of the defendant’s statements are admissible at trial apart from the failure of police to satisfy the statute. The court has found that the defendant knowingly, voluntarily, and intelligently waived the Miranda rights he was afforded, and has also found the ensuing non-recorded and audio recorded statements to have been voluntarily made. The evidence before the court is that the defendant was interviewed by New Haven Police on two separate occasions, April 21st and April 23rd, 2014. Each of these interviews occurred while the defendant was in custody serving a juvenile sentence at the Juvenile Training Center. On each occasion, the defendant was brought to an interview room in the facility and provided with oral and written Miranda warnings. The court will address each interrogation in turn.
On April 21, 2014, the administration of Miranda warnings to the defendant began at 10:40 a.m. Thereafter, police began questioning the defendant about crimes unrelated to the death of Durell Law. This portion of the interrogation lasted approximately ninety minutes. There is no evidence before the court as to how long the administration of the Miranda warnings occurred. The questioning then transitioned to the Durell Law homicide, during which the defendant provided various versions of events before ultimately incriminating himself. Once police received the "final" version in which the defendant incriminated himself an audio recorder was activated. The defendant then provided an audio recorded statement in which he again incriminated himself, apparently consistently with the final version of events he had provided police. The audio recorded statement began at 2:11 p.m. and concluded at 2:31 p.m. Subsequently, on April 23, 2014, police again interviewed the defendant at the Juvenile Training Center. The defendant again received Miranda warnings, and again waived his rights and agreed to speak to police. The warnings were administered at 12:37 p.m. On this occasion, police were in possession of certain photographs and asked the defendant to identify individuals and other things located therein. Although again in possession of an audio recorder, police did not activate the recorder until 1:19 p.m. Once activated, the defendant provided an audio recorded statement essentially repeating what he previously informed police that day. The recorded interview was concluded at 1:31.
Thus, what occurred on each occasion is that police engaged in a non-recorded "pre-interview" before ultimately audio recording a statement from the defendant The explanation for this circumstance was the "unknown length of the battery life," "unknown capacity of the audio recorder" and an inability to predict how long the interviews would last.
Although the state suggested at oral argument that with respect to the April 21, 2014, the statute was inapplicable because at the time the statement was made, the defendant then was not "a person under investigation for ... a class ... A felony" due to the initial results of the investigation, Det. Zaweski indicated in fact that following some initial police interviews of witnesses, subsequent versions from people interviewed about the crime connected the defendant with the crime. The court thus concludes that the statute is applicable.
The question presented is whether the unrecorded or audio recorded interviews are admissible against the defendant.
Neither state nor Federal constitutional law nor the supervisory authority of our Supreme Court require the recording of custodial interrogations. Our Supreme Court, instead, defers "to the legislature and its determination whether to establish such a recording requirement." State v. Edwards, 299 Conn. 419, 444, 11 A.3d 116 (2011). As noted, the legislature has established a recording requirement in Connecticut General Statutes § 54-1o . Subsection (b) of the statute establishes a presumption of inadmissibility in certain cases. It provides that:
An oral, written or sign language statement of a person under investigation for or accused of a capital felony or a class A or B felony made as a result of a custodial interrogation at a place of detention shall be presumed to be inadmissible as evidence against the person in any criminal proceeding unless: (1) An electronic recording is made of the custodial interrogation, and (2) such recording is substantially accurate and not intentionally altered.
Subsection (d) expands the ambit of the subsection (b) presumption as follows:
If the court finds by a preponderance of the evidence that the person was subjected to a custodial interrogation in violation of this section, then any statements made by the person during or following that non-recorded custodial interrogation, even if otherwise in compliance with this section, are presumed to be inadmissible in any criminal proceeding against the person except for the purposes of impeachment.
However, the presumption thus established is rebuttable. Subsection (h) provides that: "The presumption of inadmissibility of a statement made by a person at a custodial interrogation at a place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances."
(A)
The Presumption of Inadmissibility
The defendant argues that the statutory presumption of inadmissibly with regard to all of the defendants unrecorded and audio recorded statements have been met. While subsection (b) of Connecticut General Statutes § 54-1o is itself ambiguous whether the presumption applies to statements that are partly recorded and partly unrecorded, subsection (d) removes the ambiguity as it applies to this case. Under subsection (d), if a person is "subjected to a custodial interrogation in violation of this section then any statements made by the person ... following in compliance with this section, are presumed to be inadmissible ..." In this case the defendant was subjected to a custodial interrogation in connection with the allegations in this case only in violation of statutory recording requirements for approximately two hours prior to the commencement of the recording on April 21, 2014, and approximately forty-two minutes on April 23, 2014. Under these circumstances, his subsequent audio recorded statements are presumed to be inadmissible.
(B) Whether the Statutory Presumption has Been Overcome
The state argues that, even if the court were to determine that a violation of the statute has occurred in this case, the evidence presented warrants the conclusion that the statements are nevertheless admissible consistent with the exceptions described in the statute.
In that vein, the court in State v. Johnson, Superior Court, judicial district of New Haven, Docket No. CR15 0281583 (May 17, 2016, Blue, J.) discussed the nature of the presumption and exception at issue regarding the statute.
The court concluded that "the statutory presumption is rebuttable. Our Supreme Court has explained that: ‘a rebuttable presumption is equivalent to prima facie proof of a fact and can be rebutted only by the opposing party’s production of sufficient and persuasive contradictory evidence that disproves the fact that is the subject of the presumption ... A presumption requires that a particular fact be deemed true until such time as the proponent of the invalidity of the fact has, by the particular quantum of proof required by the case, shown by sufficient contradictory evidence, that the presumption has been rebutted." (Internal quotation marks and citation omitted.) The court in Johnson, supra continued with the recognition that:
The presumption at issue here is of a somewhat different type than the presumption at issue in [Fish v. Fish]. The presumption at issue in Fish was a presumption of fact. Under Connecticut case law, parents are presumed to act in the best interests of their children. The presumption stands until the evidence shows that the parents in question have not acted in the best interests of their children. In that case, the court is allowed to find as a fact that the parents in question have not acted in the best interests of their children and award custody or visitation to a third party. The presumption established by the statute in question here works somewhat differently. The fact that creates the subsection (b) presumption is that the statement in question has not been electronically recorded. Proof under subsection (h) that "the statement was voluntarily given and is reliable" does not result in a finding that the statement was, in fact, electronically recorded. Rather, proof of the facts set forth in subsection (h) results in a finding that both sets of facts are true- i.e., that the statement was not electronically recorded and the statement was voluntarily given and reliable. In that case the presumption of inadmissibility is overcome, and the statement becomes admissible, at least for purposes of the statute. (Internal citations and quotation marks omitted.)
This court agrees with Judge Blue’s analysis that the statutory presumption here is not a presumption of fact but a presumption of policy. For reasons of policy, the legislature has chosen to favor the use of electronic recording of statements and "correspondingly to handicap the disfavored adversary." Kenneth S. Broun, McCormik on Evidence § 343, at 682 (7th ed. 2013). Like the factual presumption in Fish, however, if there is a showing by a preponderance of the evidence of the facts specified in subsection (h) (i.e. "that the statement was voluntarily given and is reliable, based on the totality of the circumstances") the legislative policy presumption of inadmissibility disappears.
Subsection (h) of the statute requires proof "by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on a totality of the circumstances." There are thus two prongs that each mast be separately be satisfied to overcome the presumption of inadmissibility. Turning first to the "voluntarily given" prong, the court has previously discussed and concluded that the statements at issue were voluntarily given. A further discussion of the question of voluntariness is therefore unnecessary under the circumstances. As previously discussed neither age nor the absence of a parent is determinative as to the issue of voluntariness. See Ricks v. Commissioner of Corrections, supra, 98 Conn.App. 514 n.11; State v. Spyke, supra, 68 Conn.App. 104-05. With regard to the "reliability prong" while voluntariness is certainly a relevant consideration on the issue of whether the statements are reliable, the presence of a separate "reliable" requirement in addition to the language "voluntarily given" suggests more than voluntariness alone is required. Therefore, the court will approach the "reliable prong" in two ways, as the statute does not further define how the "reliable" prong is to be evaluated. That there is no constitutional requirement to electronically record interrogations; see State v. Lockhart, 298 Conn. 537 (2010); is further support for the view of evaluating reliability as an evidentiary claim. In State v. Johnson, supra, the court concluded that "subsection (h)’s requirement that reliability be based on ‘the totality of the circumstances’ suggests that reliability must also be established through ‘independent police work.’ " (Internal citations omitted.) With regard to the defendant’s April 21, 2014 audio recorded statement, the defendant therein described certain events leading up to his involvement in the shooting of Durell Law. The defendant described the time and location of the homicide, the name of the victim, other individuals present, and the manner of the victim’s death. In addition to incriminating himself, the defendant incriminated Joel Alexander and Arik Fraser in the crime. The defendant admitted to firing "a semi-automatic with a slide." He fired "one shot" and claimed it was accidental.
As explained through the testimony of Detective Zaweski, "independent police work" concerning the death of Durell Law developed the following: (1) The time and place of death and the identity of the victim; (2) the cause of death as a single gunshot wound to the back from a 9mm; (3) two people identified with possible involvement in the crime, Joel Alexander and Arik Fraser, were transported to the New Haven Police Department the afternoon of the homicide. Each were located in close proximity to the crime scene and lived in close proximity to the defendant’s residence; (4) police acquired video and still photographs from video taken by surveillance cameras associated with Eastview Housing Complex which depicted people and scenes connected with the crime. First using the "independent police work" matrix as a manner of establishing the reliability of the statements under the totality of the circumstances, the court concludes that sufficient corroboration has been established to satisfy the reliability prong of the statute. The time location and manner of death are consistent with the defendant’s account, as is the defendant’s assertion that he fired only a single shot. The defendant further identified the name of the victim. The defendant implicated Joel Alexander and Arik Fraser in the crime, and in fact, police suspected their involvement within a short time following the homicide. The defendant on April 23, 2014 in fact identified Joel Alexander, Arik Fraser, and himself from the aforementioned still photographs retrieved from video surveillance taken close in time and location to the commission of the homicide. The video footage is consistent with the events described by the defendant at around the time and location of the homicide.
The court will next consider a second matrix relative to the "reliability" prong, in the event that "independent police work" alone is either insufficient or inapplicable to the "reliable" prong. Regarding the second matrix, the court considers the statements themselves. "The presence or absence of plausibility, detail, and internal coherence in a statement plainly has some bearing on the statement’s reliability." State v. Johnson, supra, Superior Court, Docket No. CR15-0281583 (internal citations and quotation omitted). The court further noted that "the court’s task in determining reliability is not one of determining whether the statement is correct in every detail. Witness statements are often correct in some respects and incorrect in others. The question is whether the statement is sufficiently reliable to be helpful to the trier of fact." Id.
Historically, a lack of reliability could justify the exclusion of a defendant’s confession; the common-law evidentiary rule of excluding a statement "arose during the middle of the eighteenth century, prior to which time extrajudicial confessions were freely admitted ... [and its purpose] was to protect a defendant from an erroneous conviction based upon a false confession ... Generally, the approach under the common-law rule was to identify certain inducements which made a confession unreliable ... As frequently stated, the rule required a confession to be excluded from evidence, as involuntary, if it was obtained as a result of a promise of a benefit or leniency or a threat of harm." (Internal quotation marks omitted.) State v. Lawrence, supra, 282 Conn. 163. "In Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), however, the [United States] Supreme Court rejected the common-law focus on reliability in determining whether a confession is admissible. The court concluded that under the federal constitution, in determining whether a confession should be excluded as involuntary, the test is whether the defendant’s will was overborne, which is to be determined with complete disregard of whether or not the [accused] in fact spoke the truth." (Internal quotation marks omitted.) Id., 164. "It is clear, then, that the common-law exclusionary rule employed a different notion of voluntariness and relied upon a different rationale for excluding confession evidence than its constitutional counterpart. The former was an evidentiary rule aimed at safeguarding the trustworthiness of evidence at trial, while the latter is aimed at protecting a criminal defendant’s right to be free from compulsion to incriminate himself or herself." (Internal quotation marks omitted.) Id. The old common-law rule, which considered the reliability of the statement, may be useful in determining the appropriate standard under the statute. To put it another way, the court can consider whether the statement itself contains indicia of trustworthiness.
For example, a series of cases, drawing from State v. Mukhtaar, 253 Conn. 280, 750 A.2d 1059 (2000), discuss the admissibility of so-called "Whelan " statements upon a showing of reliability. "Whelan permits the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross examination ... In Whelan, our Supreme Court created a hearsay exception for a relatively narrow category of prior inconsistent statements that carry such substantial indicia of reliability as to warrant their substantive admissibility." (Internal quotation marks omitted.) State v. Camacho, 92 Conn.App. 271, 289, 884 A.2d 1038 (2005).
Obviously, the situation before the court is not comparable to a Whelan situation, but the Mukhtaar line of cases discuss wherein the statements at issue themselves carry "substantial indicia of reliability." "[I]f such a statement is made under circumstances so unduly coercive or extreme as to grievously undermine the reliability generally inherent in it so as to render it, in effect, not that of the witness, the trial court must act as a gatekeeper to ensure that the statement does not go to the jury for substantive purposes." State v. Palangio, 115 Conn.App. 355, 360, 973 A.2d 110 (2009), citing State v. Mukhtaar, supra, 253 Conn. 306. The court is not persuaded that the circumstances under which all of the defendant’s statements were made were coercive or extreme so as to grievously undermine their reliability. Although a portion of each interview with the defendant was not recorded, the fact that audio recording did subsequently occur on each date in question may be relevant on the issue of whether, under the totality of the circumstances, the statements in question were "voluntarily given" and reliable. The statements themselves clearly depict the defendant’s personal basis of knowledge of the events in question. At no point in any of the interviews does Zaweski threaten the defendant in any manner, nor were any promises made to him. The questions in the audio tape interview by Zaweski are, for the most part, open-ended, except when Zaweski seeks clarification of certain points. The defendant’s admission of responsibility for the crime occurs when Zaweski simply asked "what happened next." There is plausibility, detail, and internal coherence within the statement. Again, although addressing claims unrelated to the issue before the court, other cases discussing reliability on the context of hearsay statements have approached the issue by looking at indicia relevant to trustworthiness.
The defendant’s statements were made close in time to the commission of the crime and he discussed and implicated other individuals that he was friendly with. See State v. Smith, 289 Conn. 598, 630-32 (2008). When discussing the "reliability" prong of the residual hearsay exception, the court in State v. Hines, 243 Conn. 796 (1998) stated that ..."reliability is met in a variety of situations, one of which is when the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed ... the statement must independently bear adequate indicia of reliability to afford the trier of fact a satisfactory basis for evaluating its truth." Id. At 810. (Internal citations and quotation marks omitted.)
The defendant at the conclusion of the April 21, 2014 statement expresses remorse for his conduct, telling police that he "[felt] guilty" and told police the truth because the victim "was my cousin baby [sic] father. Like, I didn’t wanna hide back, cause I didn’t want to see her hurt."
The court views these last comments as, under the totality of the circumstances, indicia of the trustworthiness and hence reliability of the defendant’s statements. The reliability of the statements is evinced by the unlikelihood of the defendant falsely admitting to a crime in which his cousin’s "baby father" was the victim. To the contrary, it is consistent with his claim of remorse about the death of the victim.
Alternatively, there is persuasive authority from Illinois addressing how a Connecticut court may approach the reliability factor in the statute. Illinois also has a statute mandating that certain interrogations be electronically recorded, which is substantially similar to our statute, 725 Ill.Comp.Stat. 5/103-2.1. The Illinois statute, like § 54-1o(h), also provides that "[t]he presumption of inadmissibility of a statement made by a suspect at a custodial interrogation ... may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances." 725 Ill.Comp.Stat. 5/103-2.1(f).
725 Ill.Comp.Stat 5/103-2.1, (b) provides in relevant part: "An oral, written, or sign language statement of an accused made as a result of a custodial interrogation at a police station or other place of detention shall be presumed to be inadmissible as evidence against the accused in any criminal proceeding brought under [specified sections of the criminal code and vehicle code] unless: (1) an electronic recording is made of the custodial interrogation; and (2) the recording is substantially accurate and not intentionally altered."
Like Johnson, Illinois decisions have determined that a statement must be shown to be both voluntary and reliable. See, e.g., People v. Harper, 969 N.E.2d 573, 580 (2012).
In Harper, the Illinois Appellate Court noted that "the trial court needed to determine whether defendant’s voluntary statement was ... reliable under the totality of the circumstances. Merriam-Webster’s Collegiate Dictionary 1051 (11th ed. 2003) defines ‘reliable’ as ‘suitable or fit to be relied on: DEPENDABLE.’ In determining reliability, the trial court can consider such things as the age and mental capacity of the defendant, the presence or absence of coercion, the length of the interrogation, whether the defendant- if an addict- was in the throes of withdrawal, and any other factor that may affect the reliability of the statement." People v. Harper, supra, 969 N.E.2d 580.
More recently, the Illinois Appellate Court in People v. Sanchez, 103 N.E.3d 529 (2018), promoted a different standard for determining reliability under the Illinois electronic recording statute. The court in Sanchez noted that "[t]he Harper court listed only one factor not related to voluntariness: ‘any other factory that may affect the reliability of the statement.’ " Id., 541. The court went on to note that "whether defendant’s statement was reliable is a separate inquiry from whether it was voluntary ... Factors other than voluntariness have bearing on the reliability of a confession. Courts have frequently looked to corroboration as the most significant indicator of the reliability of confessions ... [F]or a confession, indicia of trustworthiness [include] that (1) the statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and against the declarant’s interest; and (4) there was adequate opportunity for cross examination of the declarant ... We hold that courts should consider corroboration of the statement, especially corroboration of any new assertions of fact that police did not know before, in determining the reliability of a confession under section 103-2.1(f). The other ... factors may also affect the confession’s reliability." (Citations omitted; internal quotation marks omitted.) Id., 541-42.
Relatedly, "[a] written and signed confession is obviously a more reliable form of evidence than the uncorroborated and often disputed testimony of the interrogating officers." (Internal quotation marks omitted.) State v. Whitaker, supra, 215 Conn. 756.
The question is whether the statements are sufficiently reliable and dependable to be helpful to the trier of fact. State v. Johnson, supra, People v. Harper, supra . The court finds that the state has proven the voluntariness and reliability of the defendant’s statements under the totality of the circumstances by a fair preponderance of the evidence.
For the foregoing reasons, the court concludes that the statements were "voluntarily given" and are "reliable," and as a result, the statutory presumption of inadmissibility is overcome. In addition the court will provide an appropriate instruction that will provide guidance to the jury in their assessment of the reliability of the defendant’s statements.
The motion to suppress is denied.