State v. Miller

STATE OF CONNECTICUT v. DWAINE ARSENIO MILLER

AC 32092

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued April 17, 2012

officially released August 14, 2012

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Gruendel, Espinosa and Sheldon, Js.

(Appeal from Superior Court, judicial district of Fairfield, Kavanewsky, J.)

Alice Osedach, assistant public defender, for the appellant (defendant).

Susann E. Gill, supervisory assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Margaret E. Kelley, senior assistant state's attorney, for the appellee (state).

Opinion

GRUENDEL, J. The defendant, Dwaine Arsenio Miller, appeals from the judgment of conviction, rendered after a jury trial, of one count of burglary in the first degree in violation of General Statutes § 53a-101 (a) (3), one count of burglary in the second degree in violation of General Statutes § 53a-102 (a) and one count of larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124 (a) (2). He claims that the trial court erred in denying (1) his motion to suppress his videotaped statement to police and (2) his motion to suppress physical evidence¹ police obtained during their investigatory stop of him in violation of his fourth and fifth amendment rights under the federal constitution.² We affirm the judgment of the trial court.

In deciding the defendant's motions, the court found the following facts. On the morning of April 26, 2008, shortly after 4 a.m., an individual entered the Lantern Point³ home of a female Fairfield University student while she slept. The student awoke to find the intruder in her bedroom standing near her. The intruder, who appeared to be male, was wearing light colored pants and a dark hooded jacket with the hood pulled tightly around his face. The student screamed for help, after which the intruder fled the house. The student immediately called the police, who responded promptly to her residence. When the police arrived, they did not find the intruder in the home. The police officers determined that a white Macintosh laptop computer and charger belonging to the student's roommate were missing from the home. While at the residence, the responding officers heard the dispatcher announce an assistance call to a neighboring home.

The assistance call came on behalf of another female Fairfield University student, living in a nearby house in Lantern Point, who also awoke to find an individual standing near her in her bedroom. The student was able to chase the intruder from her home. This intruder also was wearing a dark hooded jacket and light colored pants.

After the report of the first break-in, Bryan Staffey, a Fairfield police officer, headed in his patrol car toward Lantern Point, which is situated in an area with few access roads. While en route to Lantern Point, Staffey observed a lone car, driven by the defendant, a twenty year old male, traveling at roughly fifteen miles per hour away from the Lantern Point area on Fairfield Beach Road, approximately one-eighth of a mile from the reported burglary. As Staffey approached the car, he directed his spotlight at the driver of the car and noticed that the driver turned his head to stare toward his police car and that the driver was sweating profusely. At this point, Staffey became suspicious that the driver of the car had been involved in the first reportedburglary. Staffey then made a U-turn and stopped the defendant. Upon stopping the defendant, who was the sole occupant of the car, Staffey requested to see his license and registration, which he produced. From dispatch, Staffey learned that the intruder had been wearing a black "puffy" jacket. Staffey noticed that the defendant was wearing a black windbreaker. Staffey asked the defendant from where he was coming, and the defendant gave an answer Staffey knew conflicted with the direction from which he had observed the defendant's car traveling. Staffey then asked the defendant to step out of his car and called for assistance.

During the stop, the defendant consented to a search of the passenger compartment of his car, as well as to a search of the trunk. Officers recovered a black ''puffy'' jacket and a white Macintosh laptop computer from the trunk of the car. While the defendant was stopped, the officers who had responded to the students' homes brought the students to the scene to determine if they recognized him as the intruder. Although neither student identified the defendant as the intruder, both confirmed that his clothing and physical build were similar to that of the intruder. The first student identified the laptop computer as the one missing from her home. Staffey asked the defendant where he had obtained the laptop computer, to which the defendant first responded that he did not know. The defendant then stated that an unknown, light-skinned man had given it to him after threatening him and demanding his car keys. Subsequently, police arrested the defendant, advised him of his rights and escorted him to the Fair-field police department.

Once at the police department, Staffey again advised the defendant of his rights. Almost three and one-half hours later, at 9 a.m., Detective Kerry Dalling began her interview of the defendant. Dalling prefaced her interview with the defendant by advising him of his rights, for the third time that morning, this time in writing. She gave the defendant a ''Waiver of Rights'' form⁴ and asked that he read aloud the first right described on the form: the right to remain silent. The defendant did so and demonstrated that he understood this right. He also initialed the form indicating that he was waiving his right. Dalling did not request that the defendant read aloud the remaining rights listed on the form. Instead, the defendant silently read those rights, largely related to the right to counsel, as articulated on the form. As he was reading the waiver form, the defendant and Dalling had a colloquy about the defendant retaining a lawyer. During this discussion, Dalling told the defendant that it was his choice whether to speak to her without a lawyer and asked, ''I just want to make it very clear. Are we talking?'' The defendant then agreed to talk to Dalling and initialed the form, indicating that he waived his rights to silence and to counsel. During the interview that followed, the defen-dant confessed to entering the home of the first student and taking the laptop computer from her home.

The defendant was charged on October 17, 2008, in a substitute information, with two counts of burglary in the first degree, two counts of burglary in the second degree and one count of larceny in the third degree. On October 23, 2008, the defendant filed motions to suppress the physical evidence obtained by the police during the search of the car, the witness identifications of him and his statements to police. The court held a hearing on those motions, but reserved judgment on the issue of the defendant's statement to Dalling until trial.

In a memorandum of decision dated April 3, 2009, the court thereafter denied the defendant's motion to suppress any physical evidence seized from the defendant's car because it found that the defendant's consent to the search of his car was voluntary. After concluding that the witness identifications of the defendant were reliable and not unnecessarily suggestive, the court also denied the defendant's motion to suppress these identifications. The court granted in part and denied in part the defendant's motion to suppress his statements to police. As it had determined that Staffey's investigatory stop of the defendant was lawful, the court denied the defendant's motion with respect to the statements he made in response to Staffey's question about the location from which the defendant had been traveling when he was stopped. The court suppressed the defendant's statements made before he was arrested, about how he obtained the laptop and jacket officers found in his trunk, as the court found that these statements were made while the defendant was in custody, but before police had advised him of his rights, in violation of Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602,16 L. Ed. 2d 694 (1966). The court also suppressed the defendant's statements made immediately following his arrest. Finally, the court suppressed statements made by the defendant upon his arrival at the police station, but before his interview with Dalling, finding that although Staffey had advised the defendant of his rights, the state had not shown that the defendant waived his rights voluntarily, knowingly and intelligently.

The...