State v. Mitchell

948 A.2d 335

108 Conn.App. 388

STATE of Connecticut v. Philip MITCHELL.

No. 27074.

Appellate Court of Connecticut.

Argued February 15, 2008.

Decided June 10, 2008.

Charles F. Willson, special public defender, for the appellant (defendant).

James M. Ralls, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Nicholas J. Bove, senior assistant state's attorney, for the appellee (state).

BISHOP, GRUENDEL and BEACH, Js.

BISHOP, J.

The defendant, Philip Mitchell, appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61. On appeal, the defendant claims that the trial court (1) improperly denied his motions to suppress a statement he made to the police prior to being told of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the victim's identification of the defendant, and (2) abused its discretion in refusing to sanction the state for failing to produce an officer's investigative notes. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 4:30 in the morning on August 20, 2004, the victim was driving on Connecticut Avenue in Bridgeport looking to purchase marijuana. She asked two young women for marijuana, and they told her to follow them. The women turned and walked along Fifth Street, and the victim followed and parked her car. The women went across the street and returned with two men, one of whom was the defendant. The defendant told the victim to turn off her car's engine. Once she did so, all four people attacked her by punching her head, hitting her face, pulling her hair and trying to pull her through the car window. The victim screamed, pulled back, honked her car's horn and held onto the steering wheel so that she would not be pulled from the car. The victim testified that the defendant was "right in [her] face" during this attack, told her to "shut the fuck up or I'm going to blow your head off" and acted as though he had a gun. Eventually, the attackers opened the car's passenger door, and the defendant dragged the victim out of her car by the wrists. One of the women took $20 from the victim's pocket while the defendant continued to drag the victim. The victim hooked her foot around a metal fence post and when the defendant let go of her, she stood up. The defendant then kicked her in the stomach and she fell back down. When she got up again, the defendant tried to kick her a second time, but she managed to escape by running away.

The victim ran back to Connecticut Avenue and, seeing a taxicab, explained to the driver that she had just been robbed and asked him to call the police. She also pointed out her attackers as they were getting into a car. The taxicab driver made a U-turn and followed the car. He also called the police department and reported the license plate number of the car.

State police Trooper Christopher Kick was on duty that morning when he was notified of an assault in Bridgeport and provided with a description of a four door, blue vehicle with the license plate number 254-RPY driving on Interstate 95. Upon seeing the car, Kick followed it until he was joined by two other state police troopers, at which point he stopped the vehicle. All three troopers approached the car with weapons drawn, removed the three occupants from the vehicle, placed them on the ground and handcuffed them.¹

Meanwhile, the victim was met by Officer Barry Jones of the Bridgeport police department. After she told him about the assault and described the four assailants, she was transported to the site where the suspects had been apprehended. As each suspect was brought in front of the cruiser in which the victim was sitting, she positively identified each as one of the assailants. Subsequently, the victim was taken to the police station where she provided a written statement after which she was taken to a hospital to be treated for her injuries.

The jury found the defendant guilty of assault in the third degree but not guilty of robbery in the second degree, conspiracy to commit larceny in the third degree, unlawful restraint in the third degree and threatening in the second degree. The court imposed a sentence of eight months incarceration.² This appeal followed.

I

The defendant first claims that the court improperly denied his motions to suppress his pre-Miranda statement and the victim's identification of him. We address each claim in turn.

A

The defendant claims that his pre-Miranda statement was the result of a custodial interrogation and should have been excluded from evidence. In addition, he argues that the state cannot demonstrate that the court's error in admitting this statement was harmless because the court highlighted the statement to the jury by giving a consciousness of guilt charge. We agree with the defendant.

The following additional facts and procedural history are relevant to our resolution of the defendant's claim. On March 30, 2005, at the pretrial hearing on the defendant's motion to suppress, the state called Trooper Kick to testify. Kick testified that he received word in the early morning hours of August 20, 2004, of an assault that had occurred in Bridgeport and that he had received a description of the alleged perpetrator's vehicle as blue, bearing license number 254-RPY and traveling in the direction of Interstate 95. Kick positioned his vehicle on the highway near the Fairfield rest area, and when he observed a vehicle that matched the description, he drove out to prevent it from exiting the highway. When two other state police cruisers arrived, Kick activated his lights and siren and stopped the car, boxing it in with the police cruisers. The troopers approached the vehicle with guns drawn and ordered the defendant and the other suspects to exit the vehicle and to lie on the ground. The troopers then searched the suspects for weapons, placed them in handcuffs and separated them. While awaiting the Bridgeport police for a possible identification, Kick testified that he individually questioned the suspects as to where they were going and what they were doing to confirm whether he had stopped the right vehicle and whether the suspects were the individuals who had been involved in the assault. As Kick moved from suspect to suspect, he ensured that a trooper remained with each individual because "[i]f you leave them in handcuffs, they could run." Kick testified that he asked the defendant "if anything had happened that possibl[y] [came] to mind this evening on why you would have been stopped." Kick testified that in response, the defendant "basically came up with nothing.... [He] basically replied that he had just taken a ride, he wasn't paying attention, doesn't know where they'd been." Prior to and during this encounter, the suspects were not informed of their rights pursuant to Miranda.

After the pretrial hearing, the court issued a memorandum of decision on March 31, 2005, denying the motion to suppress. The court concluded that the state had conceded that the defendant was in police custody while being questioned by Kick. The court found, however, that Kick's questions did not amount to an interrogation, and, therefore, Miranda warnings were unnecessary. Accordingly, the court found that the defendant's statements were admissible. The court opined that "Kick's questions, `What is going on?' [and] `Why were you stopped?'" were asked at the threshold of the encounter and were arguably aimed at determining the nature of the situation confronting the police at that time. There is no suggestion that Kick's queries were probing, accusatory or likely to elicit an incriminatory response. The court stated: "The fact that Kick asked questions about `what was going on' without the intent of eliciting a confession or inculpatory information, but simply to investigate the situation before him, was not an interrogation." (Citations omitted.)

The defendant claims that the court improperly admitted his statement, as it was the result of a custodial interrogation, and that the admission of this evidence was not harmless beyond a reasonable doubt. Because the court found that the state conceded that the defendant was in custody and that conclusion is supported by the record, our inquiry is limited to whether there was an interrogation.³

Our Supreme Court has held that "[t]wo 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." (Internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 757, 670 A.2d 276 (1996). It is the defendant who bears the burden of proving a custodial interrogation. State v. Doyle, 104 Conn.App. 4, 11, 931 A.2d 393, cert. denied, 284 Conn. 935, 935 A.2d 152 (2007).

"The trial court's essentially factual determination of whether the police officer's conduct constituted interrogation is reversed only if it is clearly erroneous.... When a factual issue implicates a constitutional claim, however, we review the record carefully to ensure that its determination was supported by substantial evidence.... Nonetheless, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Citations omitted; internal quotation marks omitted.) State v. Walters, 94 Conn.App. 297, 302-303, 891 A.2d 1003, cert. denied, 278 Conn. 908, 899 A.2d 36 (2006), citing State v. Evans, 203 Conn. 212, 227, 523 A.2d 1306 (1987).⁴

"[T]he term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the...