State v. Purcell

331 Conn. 318

203 A.3d 542

STATE of Connecticut

v.Robert John PURCELL

SC 19980

Supreme Court of Connecticut.

Argued September 20, 2018

Officially released March 29, 2019^*

Richard Emanuel, New Haven, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom were Seth R. Garbarsky, senior assistant state's attorney, and, on the brief, Patrick J. Griffin, state's attorney, for the appellee (state).

Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

McDONALD, J.

In Davis v. United States , 512 U.S. 452, 459–60, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the United States Supreme Court determined that, after a defendant has been informed of his Miranda rights,¹ the police officers conducting a custodial interrogation have no obligation to stop and clarify an ambiguous invocation by the defendant of his right to have counsel present. Instead, they must cease interrogation only upon an objectively unambiguous, unequivocal invocation of that right. See id. The court recognized that this standard "might disadvantage some suspects who—because of fear, intimidation, lack of linguistic skills, or a variety of other reasons—will not clearly articulate their right to counsel although they actually want to have a lawyer present." Id., at 460, 114 S.Ct. 2350.

This certified appeal requires us to decide whether the Davis standard was met in this case, and, if not, whether a more protective prophylactic rule is required under the Connecticut constitution. The defendant, Robert John Purcell, appeals from the Appellate Court's judgment affirming his conviction of three counts of risk of injury to a child in violation of General Statutes § 53-21. See State v. Purcell , 174 Conn.App. 401, 405, 440, 166 A.3d 883 (2017). We conclude that the defendant's statements during interrogation did not meet Davis ' "clear and unequivocal" standard so as to require suppression of subsequent inculpatory statements under the federal constitution. We further conclude, however, that the Connecticut constitution does not condone a rule that could disadvantage the most vulnerable of our citizens. We hold that, to adequately safeguard the right against compelled self-incrimination under article first, § 8, of the Connecticut constitution,² police officers are required to clarify an ambiguous request for counsel before they can continue the interrogation. Because no such clarification was elicited in the present case and the failure to do so was harmful, we conclude that the defendant is entitled to a new trial.

The record reveals the following undisputed facts and procedural history. The complainant (victim)³ is the nephew of the defendant by marriage. In September, 2013, the victim's mother found pictures on the victim's Nintendo DS game console that concerned her, including pictures of the clothed stomachs of the defendant and the victim's father and two pictures of circumcised penises.⁴ She deleted the pictures and asked her husband to speak to the victim. The victim's father spoke to him about the Catholic Church's teachings about sexuality, which prompted the victim to acknowledge that he had had thoughts about boys but to assert that it was not his fault. He then stated that the defendant "has been having sex with me." The victim's parents reported the allegation to the police.

The victim had made a similar statement concerning the defendant to a school social worker, who reported the allegation to the Department of Children and Families. In subsequent interviews, the victim described several incidents that he claimed had occurred between 2010, when he was twelve years old, and 2013. The incidents were reported to have occurred in public restrooms and at the defendant's home. The incidents were said to include inappropriate touching and sexual acts.

In October, 2013, the defendant agreed to come to the Wallingford Police Department to discuss a complaint made against him, but he was not made aware of the nature of the allegations prior to arriving. Detective Michael Zerella and another Wallingford police officer conducted the interview. When it became apparent to the defendant that he was being accused of engaging in sexually inappropriate conduct with his nephew, the defendant explained incidents that he could think of that served as the basis of the complaint but maintained that nothing inappropriate had happened. Zerella wondered aloud whether the defendant was "a sick, perverted person or, or stuff, stuff accidentally happened." Not long after this comment, the defendant announced that things were getting "a little bit too strange," and he terminated the interview.

On November 26, 2013, the defendant was arrested pursuant to the first of three warrants and charged with multiple counts of both sexual assault, first and second degree, and risk of injury to a child.⁵ Later that day, Zerella and Wallingford Detective Sean Fairbrother conducted the custodial interrogation that gives rise to the issues in this certified appeal.

The Appellate Court's opinion accurately recounts the following facts relating to that interrogation. "Zerella began the interview by reading the defendant his Miranda rights and asking him to complete a Miranda waiver form. The defendant asked: ‘I can still, after, after, after I initial that, I can still stop answering then?’ Zerella replied: ‘Oh, anytime you want. No problem.’

"After the defendant completed the Miranda waiver form, Zerella asked the defendant whether he knew why he had been arrested. The defendant explained that he had received a letter from the Department of Children and Families (department) informing him that he was being investigated for allegations of child abuse with respect to the victim. When Zerella asked what he discussed with the department, the defendant stated that he had never talked to anyone from the department. Zerella asked why, and the defendant explained: ‘Well, I asked my lawyer, and he said, well, just not to, I, I think that's, I think that's all together wrong, but that's what he said.’ He went on to elaborate that ‘my lawyer knows what's going on, you know? But, he says don't talk, I don't talk.’ When Zerella asked him how he felt about that, the defendant stated: ‘Well, it's like I said, I probably wouldn't be here now if I talked to them.’ Zerella suggested that if he had elaborated more and been more forthcoming during the first interview, they might not be here. After some discussion about whether and why Zerella called him a pervert during the first interview, Zerella stated: ‘Okay, well, we could, we could go on about the last interview if you want to, but—’ The defendant interjected: ‘—I know, I know ... let's ... let's go on right, what, what more do you want to know?’

"After ... [Zerella explained] that a judge and [a] prosecutor had found probable cause to arrest him, the defendant observed that it was because ‘I didn't talk, that's why.’ Zerella remarked: ‘Well, you did, you did talk to me. You did tell me a few things.’ The defendant agreed but acknowledged, ‘not enough, I know.’ ... When Zerella asked the defendant to tell him some of the stories of his encounters with the victim, the defendant opined: ‘I don't know the stories that he made up.’

"Fairbrother asked the defendant whether he knew the crime with which he was charged, and the defendant replied child abuse. Fairbrother explained that he was charged with sexual assault and risk of injury to a child. The defendant asked whether that means that the allegation is that he did something sexual with the victim, and Fairbrother said that it did. The defendant adamantly denied having sexual relations with the victim. When the detectives pressed him about whether there were any moments that could be misconstrued as inappropriate, the defendant responded: ‘Well, yes, there's what, well, I, I, my lawyer said not to talk about it but, no ....’ The detectives [responded, ‘We'll leave it up to you’ and ‘Well, it's up to you’].

"The defendant observed that Zerella had told him that there was a picture of him naked on the victim's Nintendo DS during the first interview,⁶ and he asked repeatedly whether the picture actually existed. When Zerella suggested that the defendant had personal knowledge that the picture existed, the defendant insisted that he did not and that he knew about the picture only because Zerella told him about it during the first interview. Zerella maintained that ‘there's other, other things, there's other instances beside that,’ and, after the defendant asked what, Zerella observed that ‘you just said, there [is] stuff but my lawyer told me not to talk about it.’ The defendant stated that he was referring to the picture. He further asked, ‘what else is there,’ and opined that he wanted to know ‘what they are pressing against me.’ Thereafter, the following exchange occurred:

" ‘[Zerella]: Alls I got to say is, tomorrow, when you go in to court, you're gonna look at a judge and a prosecutor.... And they're gonna look at all this stuff, all these allegations that were made against you.... That it's a, it's a very, very strong case against you. Very, very strong. They're gonna look at it and say, listen, this, this man, because they don't know you from Adam, but they're just gonna see you.

" ‘[The Defendant]: Right. Well, they're gonna know my name.

" ‘[Zerella]: As, as a, as a, as a mean, as a mean individual.

" ‘[The Defendant]: Right.

" ‘[Zerella]: In, in reality—

" ‘[Fairbrother]: As a predator.

" ‘[Zerella]: As a predator, who, who's technically not cooperating and not saying, yeah, this is, this is what happened, this is probably why he thinks, thinks the way he does or—

" ‘[The Defendant]: —See , if my lawyer was here, I'd, then I'd, we could talk. That's, you know, that's it .

" ‘[Zerella]: It's up to you. You could—

" ‘[The Defendant]: —I know it. I know, I know, I know it.

" ‘[Zerella]: You could ... (a) talk to me or you could (b) not talk to me.

" ‘[The Defendant]: I

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