author: Peters, C. J. Shea, J., with whom Callahan, J.,

text:
    State of Connecticut v. Robert Stoddard
    (12989)
    Peters, C. J., Healey, Shea, Callahan and Glass, Js.
    Argued November 12, 1987
    decision released February 2, 1988

      Jon C. Blue, assistant public defender, with whom, on the brief, were Joette Katz, public defender, and Frank Riccio, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Jonathan C. Benedict, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is whether the police are constitutionally required under state law to inform a suspect whom they are holding for custodial interrogation of timely efforts by counsel to render pertinent legal assistance. The defendant, Robert Stoddard, was charged by amended information with the crime of felony murder in violation of General Statutes § 53a-54c. After a jury found the defendant guilty as charged, the trial court rendered a judgment sentencing the defendant to a term of imprisonment of fifty years.

The jury could reasonably have concluded that, on the evening of March 23,1984, the defendant went to the home of the victim knowing that the victim, who was soon to embark on a trip to Las Vegas, had a substantial amount of cash on hand. Two days later, after the victim had failed to meet a traveling companion to depart for Las Vegas, the police investigated. Entering the victim’s home through an unlocked door, an investigating officer found the victim lying dead in the bathroom. A subsequent autopsy revealed that the victim had died from a single gunshot wound in the back of the neck. In their search of the victim’s home, which had not been ransacked, the police were unable to locate the wallet, cash or jewelled rings known to belong to the victim.

On the night of the crime, the defendant borrowed a car, allegedly in order to pick up money due him from the sale of his house. He returned to the apartment where he was living approximately one and one-half hours later with more than $2000 in cash. He proceeded to destroy several credit cards and papers. After a few hours of local bar hopping, the defendant, joined by his girl friend, set out for New York City in a taxicab. On their return to Connecticut, the defendant disposed of the slide and barrel of a pistol by throwing them from the window of the moving taxi into a river. A firearms expert concluded that the slug removed from the victim had been fired from the barrel that had been thrown into the river.

On appeal, the defendant claims that the trial court should have granted his motion to suppress statements that he gave to the police because: (1) the failure of the police to inform him of counsel’s repeated efforts to contact him to provide pertinent legal assistance prior to his stationhouse confession rendered inoperative his waiver of the presence of counsel; (2) his right to counsel would have attached but for an impermissible delay in arraignment, itself caused by the closing of courts on the allegedly illegal state holiday of Good Friday; and (3) his right to counsel had attached with the issuance of an arrest warrant. Because we agree with the defendant on his first claim, we need not consider the latter two.

I

The defendant contends that the due process clause of article first, § 8, of the Connecticut constitution requires the police to inform a suspect in custody of timely efforts by a specific attorney to provide pertinent legal assistance. As the defendant concedes, this claim is untenable under federal constitutional law. The United States Supreme Court recently held that efforts by counsel to contact an in-custody suspect have no bearing on the validity of that suspect’s waiver of rights guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Moran v. Burbine, 475 U.S. 412, 422, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986).

A

The relevant facts are undisputed. On March 27, 1984, two days after the discovery of the victim’s body, the defendant, having heard that the police wanted to question him regarding the death, called a Bridgeport police detective. After telling the detective that he would not come to the station, the defendant said that on the night in question he and his girl friend went bar hopping in Bridgeport and in New York City. Roughly one week later, the defendant gave a written statement to the police following a stationhouse interview accompanied by Miranda warnings. In that statement, the defendant denied killing the victim. The defendant’s next encounter with Bridgeport police came on Thursday, April 19, 1984, at about 1:15 p.m., when he was arrested outside his home. Before leaving for the police station, the defendant spoke briefly with his girl friend through the partly opened front door of his home. The defendant was then taken to the nearby station and, en route, received Miranda warnings. Because the drive to the station took only two or three minutes, the defendant was in custody at the station no later than 1:30 p.m. Upon arrival, the police again apprised the defendant of his Miranda rights, completing the task at about 1:40 p.m. In a process normally taking thirty to forty-five minutes to complete, the defendant was booked, and then taken to a room for interrogation.

In the meantime, within fifteen minutes of the arrest, the defendant’s girl friend tried to reach attorney William Fitzpatrick III, who had represented the defendant on prior charges. Informed that William Fitzpatrick was unavailable, she spoke instead with his senior partner, John Fitzpatrick, who told her that he would promptly contact the defendant. At about 1:30 p.m., Attorney Fitzpatrick made the first of four calls to the Bridgeport police station. Identifying himself as counsel for the defendant, Fitzpatrick explained that he wanted to arrange to speak with his client. On this and all subsequent calls, counsel’s requests to speak with the defendant were not limited to any specific purpose. Although the trial court indicated that one of counsel’s primary reasons for calling was to arrange bond for the defendant, counsel testified repeatedly that his general goal was to speak privately with his client. Because the trial court expressly credited the entirety of defense counsel’s testimony and the state agreed, the record amply supports a broad interpretation of counsel’s efforts.

When the officer answering counsel’s first phone call said she had no record of the defendant’s presence, counsel asked to speak to a higher authority. A sergeant who was summoned to handle counsel’s call told him that, “we have no record of him being here.” Counsel’s second call, made at about 2 p.m., resulted in a similar denial of the defendant’s presence at the station. Because of these responses, counsel did not personally appear at the station demanding to see the defendant, and did not ask the police not to interrogate the defendant.

Shortly into the interrogation, the defendant telephoned his girl friend at 2:17 p.m. She in turn spoke to Attorney Fitzpatrick for a second time. Counsel thereafter called the Bridgeport police station again some time after 3 p.m., identified himself as the defendant’s lawyer, and asked to speak with him. Because counsel was again told that the defendant was not on the premises, counsel made no further effort to reach his client until the next morning. Later that evening, the defendant gave a statement implicating his girl friend in the victim’s death and denying that he had killed him. The defendant spent the night in the lockup of the Bridgeport station.

The next morning, counsel made a final unsuccessful attempt to contact his client. He received the same answer denying that the defendant was in the custody of the Bridgeport police. At mid-morning, however, the defendant was brought from the lockup to view newly obtained evidence, consisting of the slide and barrel of the pistol the police had retrieved from a river. After signing a card containing Miranda warnings, the defendant told the police he would discuss the crime. Prior to giving a written statement, the defendant also signed a waiver of rights form. By 3 p.m. that afternoon, the defendant had signed an incriminating five page statement, which was later read to the jury by one of the interrogating officers. None of the defendant’s other statements was admitted at trial.

During this course of events, from arrest to confession, the defendant did not know that his attorney was making repeated efforts to contact him. Similarly, the interrogating officers had no knowledge of the efforts of counsel. In his calls, counsel did not specifically request to speak with the detective bureau, and because the front desk officer did not forward the calls, no one in the detective bureau knew of the calls.

After a hearing, the trial court held the statement to be admissible. The court determined, inter alia, that under prevailing state and federal law the defendant had fully waived his rights to counsel and to remain silent and had freely chosen to incriminate himself. In the calculus of waiver, the court gave no weight to the repeated efforts of counsel because it found the holding of Moran v. Burbine, supra, to be controlling. After determining that the defendant was not informed of the Thursday calls because of inadvertence, however, the court stated: “I cannot personally find any excuse for failing to tell [the defendant] on Friday.”

B

The defendant first urges us to impose a duty upon police officers who are holding a suspect for custodial interrogation to act reasonably, diligently and promptly to apprise the suspect of efforts by counsel to provide pertinent and timely legal assistance. He further argues that any dereliction in the performance of this duty necessarily undermines the suspect’s waiver of the right to have counsel present during questioning. While we agree with the defendant that such a duty exists, we hold instead that a waiver of rights may or may not, depending upon the totality of the circumstances, be vitiated by the failure of the police to fulfill their responsiblity to inform the suspect.

While the United States Supreme Court recently refused to impose a similar duty upon the police under the federal constitution, it nonetheless recognized that “[n]othing we say today disables the States from adopting different requirements for the conduct of its employees and officials as a matter of state law.” Moran v. Burbine, supra, 428. This recognition, no doubt mandated in part by well known principles of federalism; Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); was also prompted by a reluctance to intrude into the administration of state criminal processes. Even though it “share[d] [the defendant’s] distaste for the deliberate misleading of an officer of the court,” the court stated that “[nothing in the Constitution vests in us the authority to mandate a code of behavior for state officials” unless necessary to enforce a federal right. Moran v. Burbine, supra, 424-25. Further, in rejecting the due process claim advanced by the defendant, the court stated that the police conduct at issue did not “warrant a federal intrusion” into state criminal processes. Id., 433-34.

The appropriate task for this court, then, is to ascertain the independent meaning of the due process clause of article first, § 8, of the Connecticut constitution. This state has had a long history of recognizing the significance of the right to counsel, even before that right attained federal constitutional importance. Until 1836, the common law of England denied the services of counsel to a person charged with a felony for anything but advisory guidance on questions of law. Powell v. Alabama, 287 U.S. 45, 60, 53 S. Ct. 55, 77 L. Ed. 158 (1932). This rule was defended largely on the theory that the court itself was counsel for the accused. Id., 61.

Although in 1708 Connecticut enacted a law prohibiting pleading for hire without the express consent of the court; State v. Gethers, 197 Conn. 369, 389-90 n.19, 497 A.2d 408 (1985); the custom of assigning counsel in all criminal cases quickly became the norm. State v. Davis, 199 Conn. 88, 99, 506 A.2d 86 (1986). By the end of the eighteenth century, the Connecticut legislature had “abolished all those odious laws” arising from the English common law tradition and had assured that any person charged with a crime was “entitled to every possible privilege in making his defence, and manifesting his innocence, by the instrumentality of counsel . . . .” 2 Z. Swift, A System of Laws of the State of Connecticut (1796) p. 399.

When the customary right to counsel was formally incorporated into the Connecticut constitution in 1818, “the advice and services of counsel were regarded as crucial to a criminal defendant at any time, especially given the inability of a defendant to testify in Connecticut in 1818.” State v. Davis, supra, 99-100. More contemporary developments suggest that this state’s commitment to securing the right to counsel has not diminished since 1818. Not only was Connecticut “the first state to adopt the public defender system”; State v. Hudson, 154 Conn. 631, 635, 228 A.2d 132 (1967); but the right to counsel “was secured to criminal defendants in this state long before the mandate of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 [(1962) (holding that the fourteenth amendment incorporated the sixth amendment right to counsel)] . . . ." Spring v. Constantino, 168 Conn. 563, 566-67 n.2, 362 A.2d 871 (1975). The United States Supreme Court has turned to the historical experience of Connecticut in expanding the right to counsel under the federal constitution. Faretta v. California, 422 U.S. 806, 827, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Powell v. Alabama, supra, 62-63.

While this history specifically illuminates the right to counsel that attaches after the initiation of adversary judicial proceedings, it also informs the due process concerns raised by police interference with counsel’s access to a custodial suspect. Cf. State v. Ferrell, 191 Conn. 37, 42 n.5, 463 A.2d 573 (1983). In recently reiterating that Miranda warnings are “independently required” under the due process clause of article first, § 8, of the Connecticut constitution; State v. Barrett, 205 Conn. 437, 447, 534 A.2d 219 (1987); we recognized, once again, the “ ‘unique ability’ ” of counsel to protect the rights of a client undergoing, or confronting the imminent possibility of, interrogation. Id., 447-48, quoting Fare v. Michael C., 442 U.S. 707, 719, 99 S. Ct. 2560, 61 L. Ed. 2d 197, reh. denied, 444 U.S. 887, 100 S. Ct. 186, 62 L. Ed. 2d 121 (1979).

This recognition is in service of the traditional belief that an accused may be convicted only if “exacting measures have been taken to assure that the accused has been treated with the most scrupulous fairness” by law enforcement officials. State v. Ferrell, supra, 41. Because counsel is uniquely prepared to assist a suspect in making an intelligent and knowing decision whether to speak or stand mute, we have concluded that questioning of a suspect must cease once a clear request for counsel has been made. State v. Acquin, 187 Conn. 647, 667, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983). The decision in Miranda v. Arizona, supra, 444, itself the benchmark in this area of law, required “fully effective means” of ensuring a suspect’s continuous right of access to counsel.

In light of both the historical record and our due process tradition, we conclude that a suspect must be informed promptly of timely efforts by counsel to render pertinent legal assistance. Armed with that information, the suspect must be permitted to choose whether he wishes to speak with counsel, in which event interrogation must cease, or whether he will forego assistance of counsel, in which event counsel need not be afforded access to the suspect. The police may not preclude the suspect from exercising the choice to which he is constitutionally entitled by responding in less than forthright fashion to the efforts by counsel to contact the suspect. The police, because they are responsible for the suspect’s isolation, have a duty to act reasonably, diligently and promptly to provide counsel with accurate information and to apprise the suspect of the efforts by counsel.

We do not lightly undertake to impose additional responsibilities upon the law enforcement officials of this state but will do so where constitutional rights are squarely implicated. The duty to inform is justified not only by history and due process concerns but also by its ease of application. Within the parameters we have outlined, this duty requires only that the police act as a neutral conduit for the pertinent and timely requests by counsel to meet with a custodial suspect. In order to articulate further the scope of the duty, and to provide guidance to law enforcement officials, we deem it advisable to address several potential criticisms of the rule we announce today.

One objection that has been voiced is that a third party, such as an attorney, has no authority to invoke the personal right of the suspect to advice and presence of counsel. Fuentes v. Moran, 572 F. Sup. 1461, 1469 (D.R.I.1983), aff'd, 733 F.2d 176 (1st Cir. 1984); Blanks v. State, 254 Ga. 420, 423, 330 S.E.2d 575 (1985). This criticism misunderstands the underlying premise of requiring the police to inform a suspect of the efforts of counsel. We recognize the proposition that the suspect alone can invoke the right to counsel. We therefore decline to follow the strict rule, adopted by the New York courts, that counsel may invoke the rights of a suspect merely by diligently intervening in the proceeding. People v. Rogers, 48 N.Y.2d 167, 397 N.E.2d 709, 422 N.Y.S.2d 18 (1979); People v. Arthur, 22 N.Y.2d 325, 239 N.E.2d 537, 292 N.Y.S.2d 663 (1968).

We are unwilling, however, to dismiss counsel's effort to communicate as constitutionally insignificant to the capacity of the suspect to make a knowing and intelligent choice whether he or she will invoke the right to counsel. Miranda warnings refer only to an abstract right to counsel. That a suspect validly waives the presence of counsel “only means that for the moment the suspect is foregoing the exercise of that conceptual privilege.” Weber v. State, 457 A.2d 674, 685 (Del. 1983). Faced with a concrete offer of assistance, however, a suspect may well decide to reclaim his or her continuing right to legal assistance. “To pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice, whatever might be arranged in the long run. A suspect indifferent to the first offer may well react quite differently to the second.” State v. Haynes, 288 Or. 59, 72, 602 P.2d 272 (1979), cert. denied, 446 U.S. 945, 100 S. Ct. 2175, 64 L. Ed. 2d 802 (1980). We cannot therefore conclude that a decision to forego the abstract offer contained in Miranda embodies an implied rejection of a specific opportunity to confer with a known lawyer. Accordingly, the lack of authority of counsel to invoke the personal right of the suspect is no bar to the imposition of a duty to inform a suspect of counsel’s efforts. Dunn v. State, 696 S.W.2d 561, 565-69 (Tex. Crim. App. 1985).

A second criticism is that the police have no general duty to “supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights.” Moran v. Burbine, supra, 422; State v. Blanford, 306 N.W.2d 93, 96 (Iowa 1981); State v. Hanson, 136 Wis. 2d 195, 212, 401 N.W.2d 771 (1987). Such a duty, it has been argued, would upset Miranda’s “subtle balance” between the societal interest in securing admissions of guilt and the suspect’s privilege against self-incrimination. Moran v. Burbine, supra, 426. As with the critique, discussed above, that counsel lacks authority to invoke the personal right of a suspect, we largely agree with the underlying premise of this second complaint but question its relevance to the issue at hand. It may well be that the police have no duty to provide information about such general topics as “the nature and quality of the evidence” against the suspect. Oregon v. Elstad, 470 U.S. 298, 317, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). The police conduct at issue in this case, however, consists not of a failure to supply generally useful information but of a failure to apprise the defendant of a specific communication from his attorney that bore directly on the right to counsel. Moran v. Burbine, supra, 456 n.42 (Stevens, J., dissenting); People v. Houston, 42 Cal. 3d 595, 612 n.19, 724 P.2d 1166, 230 Cal. Rptr. 141 (1986); State v. Matthews, 408 So. 2d 1274, 1278 (La. 1982); Lewis v. State, 695 P.2d 528, 530 (Okla. Crim. App. 1984).

According to a third criticism, only educated and wealthy suspects, or career criminals with established ties to counsel, will benefit from the rule we announce today. People v. Houston, supra, 622 (Lucas, J., dissenting); State v. Hanson, supra. This criticism focuses on the egalitarian premise of Miranda that all suspects are entitled to know their rights, not only sophisticated and astute ones. We perceive no reason, however, to penalize the suspect whose counsel is ready and able to provide assistance merely because there may be suspects, whether due to ignorance or poverty, who do not enjoy the same advantage. “Even the intelligent and educated layman has small or sometimes no skill in the science of law.” Powell v. Alabama, supra, 69. On the other hand, suspects that may not be well educated may well know their constitutional rights in this area. Any commitment to fundamental constitutional rights must acknowledge that their use and application will differ from one situation to the next. Just as Miranda itself assumes that its warnings will be understood, so it is that an experienced or educated suspect can be expected to exercise those rights with greater regularity and to a more fruitful end.

Under a further critique, only intentional conduct of the police in denying access of counsel to a custodial suspect is prohibited by the duty to inform. We cannot accept such a demarcation. The essential aim of the Miranda rule is to ensure that a suspect is properly and fully advised of the panoply of rights afforded by the state and federal constitutions and to guarantee that any waiver of those rights is knowing, intelligent and voluntary. State v. Ferrell, supra, 42. In fulfilling this mission, “[t]he focus must be on the rights of the accused, not the innocence or culpability of the police.” Commonwealth v. Hilliard, 471 Pa. 318, 323, 370 A.2d 322 (1977). Although police misconduct can figure importantly in the assessment of waiver, particularly when allegations of threats, promises and untoward inducements are made, the ultimate inquiry is whether the suspect understood and waived his rights. We therefore conclude that a test that hinges solely on intentional police interference is inconsistent with the underlying focus of the Miranda rule.

Finally, objections to the duty to inform have been made on practical grounds. Moran v. Burbine, supra, 425; State v. Hanson, supra. The principal objection is that a rule requiring the police to inform a suspect of efforts by counsel will undermine the clarity of the Miranda guidelines. This objection, however, is more concerned with the convenience of the police than with the clarity of Miranda guidelines. We fail to perceive any difficulty in administering a rule that simply requires the police accurately to monitor an external event, such as a telephone call from counsel. In addition, we do not regard the scope of this duty to be riddled with insoluble questions, as several courts have argued. Three such questions have been: (1) whether counsel must be physically present in the police building in order to trigger the police duty; State v. Hanson, supra; (2) whether it is enough to inform a supervisory officer even though the interrogating officer may not have personal knowledge of the request; Moran v. Burbine, supra, 425; and (3) whether counsel must have had a prior attorney-client relationship with the suspect in order to trigger the duty. State v. Hanson, supra. Answers to these questions will illustrate the simplicity of the rule we announce today.

First, counsel’s phone calls in this case obviated any need for him to appear physically at the police station. Once counsel is told that his client is not in custody, it is not then reasonable to require counsel to double check the accuracy of the police answer by physically presenting himself at the station. What is required of counsel is a reasonably diligent, timely and pertinent request to consult with a client. A request is diligent if all necessary steps have been taken to notify the police clearly in the ordinary course of business, timely if made prior to the giving of incriminatory statements, and pertinent if counsel clearly indicates that access to the suspect is sought for the general purpose of providing legal assistance. In any case, counsel’s request must be in a form and at a time that affords the police a reasonable opportunity to respond.

Second, lack of knowledge on the part of the interrogating officers is not dispositive because it is for the police, as an entity, to establish and maintain adequate procedures that will facilitate the. reasonably prompt communication between an attorney and a suspect. See People v. Garofolo, 46 N.Y.2d 592, 600-601, 389 N.E.2d 123, 415 N.Y.S.2d 810 (1979); People v. Pinzon, 44 N.Y.2d 458, 464, 377 N.E.2d 721, 406 N.Y.S.2d 268 (1978). In this case, the Bridgeport police should have understood that they were repeatedly being asked to convey counsel’s efforts to reach his client. Although there was no proof that the police deliberately misled counsel, the trial court expressly found that there was no excuse for not informing the defendant of the Friday morning call. Whether intentional or negligent, the failure to inform the defendant constitutes a violation of the duty of the police to keep track of the suspect and to serve as a neutral conduit between counsel and the suspect. Accordingly, the fact that counsel did not call directly to the detective bureau, or ask to be transferred to that bureau, does not invalidate his efforts.

Third, the prior existence of an attorney-client relationship is not relevant to the duty itself. While a suspect may decline the proffered services of a lawyer who unilaterally intervenes in the proceeding, we think it unwise to impose upon the police the responsibility of ascertaining the nature of the putative relationship between counsel and the suspect. The existence, or lack thereof, of an attorney-client nexus relates to the question of waiver, which we take up in part II of this opinion. We therefore decline to import this factor into the threshold question of the duty to inform.

II

Although we agree with the defendant that the police have a duty to inform a custodial suspect of counsel’s efforts to provide legal advice, our inquiry is not at an end. We must next consider in what circumstances statements obtained in violation of this duty must be suppressed. The resolution of this question hinges on well known principles governing the waiver of constitutional rights.

The right to have counsel present during interrogation can be waived by the suspect. “The state has the burden of proving by a preponderance of the evidence that the defendant knowingly and intelligently waived his Miranda rights, including his right to remain silent [and to presence of counsel]. State v. Boscarino, 204 Conn. 714, 743, 529 A.2d 1260 (1987); 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. Toste, 198 Conn. 573, 579-80, 504 A.2d 1036 (1986). A valid waiver is defined, in accordance with the well known test of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), as the intentional relinquishment or abandonment of a known right. State v. Shockley, 188 Conn. 697, 706, 453 A.2d 441 (1982); State v. Reed, 174 Conn. 287, 293, 386 A.2d 243 (1978).” State v. Barrett, 449-50. An effective waiver, however, “presupposes full knowledge of the right or privilege allegedly waived.” State v. Ramos, 201 Conn. 598, 603, 519 A.2d 9 (1986). In addition, the waiver must be “accomplished with sufficient awareness of the relevant circumstances and likely consequences.” State v. Reed, supra. Even after a suspect has validly waived his or her rights, there exists a “continuous opportunity” to invoke or reinvoke the rights “in any manner and at any stage of the process” of interrogation. Miranda v. Arizona, supra, 444-45. We therefore conclude that a waiver of presence of counsel can, under certain circumstances, be shown invalid if the police fail to inform a suspect of the efforts by counsel.

The question before us is how to interpolate into the calculus of waiver the failure of the police to inform a suspect of inquiries by counsel. Courts in other jurisdictions have taken two views of this issue. Some have adopted a per se rule of exclusion in order to enforce the duty to inform. Others have taken a more open ended examination of the totality of the circumstances.

In the majority of reported cases, the rule has been that a lack of knowledge always fatally undermines the suspect’s continuing right to claim the presence of counsel. The principal reason for adhering to a per se rule of exclusion is ably stated by the Supreme Court of Oregon: “When the opportunity to consult counsel is in fact frustrated, there is no room for speculation what defendant might or might not have chosen to do after he had that opportunity.” State v. Haynes, supra, 75; see also People v. Houston, supra, 610; Weber v. State, supra, 685; People v. Holland, 147 Ill. App. 3d 323, 332-33, 497 N.E.2d 1230 (1986); State v. Matthews, supra, 1278; Commonwealth v. Sherman, 389 Mass. 287, 291, 450 N.E.2d 566 (1983); People v. Garofolo, supra, 599; State v. Stephens, 300 N.C. 321, 327, 266 S.E.2d 588 (1980); Lewis v. State, supra, 531; Commonwealth v. Hilliard, supra, 322; State v. Jones, 19 Wash. App. 850, 854, 578 P.2d 71 (1978).

We do not agree with the majority rule. The decision to speak or to stand mute is a personal right of the suspect. That decision, made on the basis of full knowledge of all relevant circumstances, belongs exclusively to him. Commonwealth v. Sherman, supra, 292. Had the police officials in this case properly responded with the communication, the defendant might conceivably have taken the advice of counsel to remain silent. Commonwealth v. McKenna, 355 Mass. 313, 324, 244 N.E.2d 560 (1969); People v. Garofolo, supra, 600. By the same token, the suspect might have chosen to cooperate with the police and waive the presence of counsel. State v. Murphy, 44 Wash. App. 290, 292-94, 721 P.2d 30 (1986). We therefore decline to impose, by judicial fiat, a blanket rule of exclusion or admissibility.

Reliance on the totality of the circumstances is consistent with existing rules for the evaluation of the validity of a waiver. State v. Boscarino, supra, 743; State v. Hernandez, supra, 395; State v. Chung, supra, 48. The critical question is whether the information not conveyed by the police would likely have changed the defendant’s appraisal and understanding of the circumstances. Fuentes v. Moran, supra, 1471; Dunn v. State, supra, 569. Of particular, but not exclusive, relevance are such facts and circumstances as the relationship of the suspect to the attorney, the nature of counsel’s request, the extent to which the police had reasonable notice of counsel’s request and the conduct of the suspect. Fuentes v. Moran, supra, 1470; Dunn v. State, supra, 568.

In this case, the trial court concluded that the defendant had validly waived his Miranda rights. This ruling is challenged only on the basis that the trial court afforded no weight to efforts by counsel to contact the defendant. By implication, then, the defendant does not challenge the trial court’s conclusion that the police did not threaten or intimidate the defendant or use actual force to extract his incriminatory statement of Friday, April 20, 1984. On appeal, the defendant’s claim is solely that the failure of the police to discharge their duty to keep him informed of counsel’s efforts robbed his waiver of the required elements of knowledge and intelligence.

Facing similar claims, courts in other jurisdictions have come to varied conclusions. A federal district court in Fuentes v. Moran, supra, refused to order suppression. This holding rested largely on the narrowness of counsel’s request. After reviewing the record, the court concluded that counsel had called the station twice for the limited purpose of ascertaining the custodial status of his client. Neither call, the court held, could be characterized as an attempt to contact the suspect for the general purpose of providing advice on the exercise of constitutional rights. Id., 1472. Accordingly, the court held that it was not reasonably likely that the suspect would have changed his appraisal and understanding of the circumstances had he known of the efforts by counsel. By contrast, the court in Dunn v. State, supra, after applying a totality of the circumstances test, concluded that suppression was required. In reaching its conclusion that the “appellant ... if given a knowing and intelligent choice, might certainly have opted to remain silent,” the court placed particular reliance on the ready availability of counsel to provide advice of a general nature. Id., 569.

The record in this case, taken as a whole, reveals at least a reasonable likelihood that the defendant would have invoked his right to counsel had the police fulfilled their duty to inform. First, the content of counsel’s aborted communications over a period of two days was pertinent to the exercise of the right to counsel. Because counsel’s requests to speak with the defendant were phrased generally, and not specifically limited to a topic, such as bail, that has no bearing on the right to counsel, we can fairly infer that counsel would have advised the defendant to remain silent. Watts v. Indiana, 338 U.S. 49, 59, 69 S. Ct. 1347, 93 L. Ed. 1801 (1949) (Jackson, J., concurring). Second, because counsel was a member of a firm that had previously represented the defendant, the defendant could reasonably have been expected to respond to counsel’s offer of assistance.

Under the totality of the circumstances, the state has not met its burden of proving by a preponderance of the evidence that the efforts of counsel, if properly communicated, would not have altered the defendant’s appraisal and understanding of the circumstances. Accordingly, the trial court erred in denying the defendant’s motion to suppress.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion Healey and Glass, Js., concurred.

Shea, J., with whom Callahan, J.,

joins, dissenting. As the majority opinion recognizes, the United States Supreme Court has held in a case remarkably similar to this one that failure of the police to inform a person held in custody of a telephone call from an attorney engaged by another, without the request or knowledge of the suspect, does not undermine an otherwise valid waiver of his rights under the fifth amendment to our federal constitution to remain silent and to the presence of counsel during interrogation. Moran v. Burbine, 475 U.S. 412, 422, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). “Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Id.

The majority, nevertheless, rejects this view and, under the aegis of our state constitution, imposes upon the police in Connecticut a significant addition to the standard warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). This further obligation is that the police must inform a suspect in custody, prior to questioning him, that any attorney who may have telephoned, whether known to him or not, wishes to speak to him. Breach of that duty, whether by design or inadvertence, as in this case, is deemed to vitiate an otherwise knowledgeable waiver of the right of silence, unless the state is able to demonstrate that “the efforts of counsel, if properly communicated, would not have altered the [suspect’s] appraisal and understanding of the circumstances.”

The majority has thus created a significant expansion of Miranda, likely to impact a large proportion of those presently uncommon cases in which otherwise valid confessions have been obtained but the police have failed to inform the defendant that a lawyer had called him before he confessed. It will be a rare case where the state can show that knowledge of the call would not have affected the defendant’s decision to respond to police interrogation without legal assistance. Cf. State v. Murphy, 44 Wash. App. 290, 292-94, 721 P.2d 30 (1986). It would be an even less frequent event for an attorney, given the opportunity to speak to a suspect, not to advise him immediately to say nothing to the police. “[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.” Watts v. Indiana, 338 U.S. 49, 59, 69 S. Ct. 1347, 93 L. Ed. 2d 1801 (1949) (Jackson, J., concurring).

In this instance we are concerned with police frustration of access by an attorney to a suspect, a situation that has not occurred frequently in this state, but is not entirely unprecedented. See State v. Darwin, 155 Conn. 124, 155, 230 A.2d 573 (1967), rev’d and remanded, 391 U.S. 346, 88 S. Ct. 1488, 20 L. Ed. 2d 630 (1968). The majority opinion holds that “the prior existence of an attorney-client relationship is not relevant to the duty” of the police to inform a suspect that some lawyer wants to talk to him, but only to whether the suspect “could reasonably have been expected to respond to counsel’s offer of assistance.” This view has the potential for dramatically upsetting the balance struck by Miranda in resolving the dilemma for a free society posed by police interrogation of a suspect. Watts v. Indiana, supra. “To subject one without counsel to questioning which may and is intended to convict him, is a real peril to individual freedom. To bring in a lawyer means a real peril to solution of the crime, because, under our adversary system, he deems that his sole duty is to protect his client—guilty or innocent—and that in such a capacity he owes no duty whatever to help society solve its crime problem.” Id. If the prior existence of an attorney-client relationship is irrelevant to the duty imposed by the majority, it appears that any attorney may volunteer his advice to one held in custody and the police are then obliged to inform a suspect of that offer.

Furthermore, since the majority opinion declares that “[t]he critical question is whether the information conveyed by the police would likely have changed the defendant’s appraisal and understanding of the circumstances,” and is not grounded upon any attempt by the suspect to exercise his right to counsel, the logical implication is that the police have a duty to inform a suspect of an attempt to communicate with him by any person. A telephone call from someone without any legal training, such as a relative, friend, or even a total stranger might well provide a suspect with information “that would likely have changed [his] appraisal and understanding of the circumstances.” Since the rationale of the majority is that being told that a lawyer has sought to converse with a suspect is essential to a knowledgeable waiver of his right, to remain silent, attempts by others to warn him to say nothing to the police or to obtain legal assistance are not readily distinguishable from efforts of lawyers unsolicited by the suspect to convey the same information to him.

Indeed, if a knowledgeable waiver of the privilege against self-incrimination requires that a suspect be informed of every circumstance known to the police that might have affected his decision to confess, we open a veritable Pandora’s box. Heretofore courts have at least implicitly tolerated some of the less extreme forms of deception practiced by the police with the intention of inducing a suspect to confess as a kind of evil necessary for an effective interrogation process. Oregon v. Mathiason, 429 U.S. 492, 493-96, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); Michigan v. Mosley, 423 U.S. 96, 98 n.3, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975); State v. Falby, 187 Conn. 6, 14-16, 444 A.2d 213 (1982); see generally W. White, “Police Trickery in Inducing Confessions,” 127 U. Pa. L. Rev. 581 (1979). Are we now sub silentio signalling a new look at these cases leading to the imposition upon the police in their confrontations with criminals of standards more appropriate for those in a fiduciary relationship, “the punctilio of an honor the most sensitive?” Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545 (1928); see Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 407, 456 A.2d 325 (1983).

It cannot be denied that under our system the question of guilt or innocence turns not upon the facts but upon “only such evidence as [the defendant] cannot conceal from the authorities, who cannot compel him to testify in court and also cannot question him before,” without complying with the prophylactic standards of Miranda. Watts v. Indiana, supra, 59. We have accepted these restrictions on the ability of the state to prosecute crime as “a necessary price to pay for the fairness we know as ‘due process of law.' ” Id., 62. Miranda represents a compromise between the need of the state for effective interrogation of a suspect to solve a crime and the right of the individual to say nothing that may incriminate him. I am not inclined to upset this delicate balance that the police by now have learned to live with and thus increase the handicap on society in determining the truth in criminal investigations.

In deciding that the due process clause of our state constitution demands this new embellishment of Miranda, despite the rejection of such an interpretation of the identical language of the corresponding provision of our federal constitution by the United States Supreme Court, the majority relies upon the history of the laudable role this state has performed in the implementation of the right to counsel. As the majority concedes, this history “specifically illuminates the right to counsel that attaches after the initiation of adversary judicial proceedings,” i.e., the right specifically set forth in the sixth amendment to our federal constitution and in article first, § 8, of our state constitution. The majority does not question the holding in Moran that this right of counsel is not involved in questioning a suspect prior to initiation of formal criminal proceedings. Such illumination as is shed by the authorities cited, however, does not even remotely suggest that the right of counsel, even if advanced to the custodial interrogation stage of the proceeding, may be exercised by anyone but the person it is designed to protect. When a suspect, after being given the Miranda prescribed advice that he may have counsel present during a police interrogation, has declined such assistance, a telephone call from a lawyer unsolicited by the suspect can hardly be regarded as an assertion by the suspect of his right to counsel, whether based on our state or federal constitution.

Thus the position taken by the majority for broadening the protection available to a criminal suspect in Connecticut beyond that federally required by Miranda finds no support in any textual difference between the state and federal constitutional provisions and very little in applicable precedent. It stems, therefore, primarily from the .view of the majority that the concept of fairness epitomized in the due process clause demands greater limitations on the police in this state than those imposed by Miranda. I believe that due process fairness, under our state as well as our federal constitution, must take into account the “felt necessities of the time”; O. W. Holmes, Jr., The Common Law (1881) p. 1; one of which is the magnitude of our crime problem. I would not, therefore, place this further restriction upon effective police interrogations when conducted in Connecticut.

Accordingly, I dissent.

       “[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       The defendant and his girl friend both testified that at the time of the arrest the defendant told his girl friend to contact his lawyer. Though uncontroverted, the trial court expressly refused to credit this testimony.

       At oral argument, the state conceded that, at the time of counsel’s phone calls, the defendant was being held in the same building as the information desk that received and handled counsel’s requests. In an exchange with the bench, the state also acknowledged that the requests received by the information desk could be imputed to the detective bureau:
      “Q. How do you explain [the failure to convey counsel’s requests to the detective bureau]?
      “A. Lack of communication in the police department. It’s very hard to explain. And it’s not good police procedure ....
      “Q. [Defense counsel] just told me that it’s all one State of Connecticut. I suppose with you it’s all one police force too. The knowledge of one is the knowledge of all.
      “A. I agree with you.”

       Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed.”

       The right of access to counsel plays a special role in the validity of confessions. The assertion in the dissenting opinion that our judgment will open up a “Pandora’s Box” with respect to other kinds of conceivably helpful information therefore has no foundation.

       The United States Supreme Court also held that a defendant’s right to counsel under the sixth amendment to our federal constitution was not violated because he had confessed while unaware of the telephone call from the attorney. Moran v. Burbine, 475 U.S. 412, 422-34, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). “Because . . . the events that led to the inculpatory statements preceded the formal initiation of adversary judicial proceedings, we reject the contention that the conduct of the police violated [the defendant’s] rights under the Sixth Amendment.” Id., 432; see Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972). The majority opinion does not question this part of Moran.

       In State v. Darwin, 155 Conn. 124, 230 A.2d 573 (1967), the attorneys, whose efforts to contact the defendant after his arrest on a coroner’s warrant were deliberately frustrated by the state police, had previously conseled him at the coroner’s inquest where he had testified as a witness.

       See footnote 1, supra.

       Although the majority opinion does “recognize the proposition that the suspect alone can invoke the right to counsel,” it, nevertheless, assumes that the due process right of a suspect to counsel at a police interrogation may effectively be triggered by an attorney not engaged or requested by the suspect. It appears to equate the suspect’s right of access to counsel at such an interrogation as encompassing a right on the part of an attorney to have access to a suspect with whom he has had no previous relationship.


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. William B. Schroff III
    (13081)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.

      Argued November 4, 1987
    decision released February 2, 1988

      Eric J. Bengston, assistant public defender, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, was Timothy J. Liston, assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The defendant, William B. Schroff III, was found guilty, after a trial before a jury, of the crime of murder in violation of General Statutes § 53a-54a. This appeal followed.

Prior to trial, the defendant moved to suppress all the statements that he had made to law enforcement officials between May 30, 1983, and July 11, 1984. These statements, nine in number, were made on September 12, 1983, September 21, 1983, September 26, 1983, December 6, 1983, March 8, 1984, March 21, 1984, May 1, 1984, June 29, 1984, and July 11, 1984. The trial court denied the motion as to the statements of September 12, 1983, and September 21,1983, finding, inter alia, that they were voluntarily given. It granted the motion as to all the other statements except as to a portion of the June 29, 1984 statement. In granting suppression, it found that they were involuntary, involving improper promises and inducements by the state police.

On appeal, the sole issue raised by the defendant is that the trial court erred in not suppressing as involuntary that portion of his June 29, 1984 statement given to state police detectives Michael Graham and James Cavanaugh when they showed him photos of the grave site of the murder victim, Laura Hill. We find no error in the trial court’s ruling denying suppression. In resolving this appeal, we find it necessary to go into the circumstances of all the statements given because of the essential position of the parties on this question.

On July 10, 1982, Laura Hill disappeared from the Veterans’ Administration Hospital in West Haven, which she had entered in June, 1982. On June 27, 1984, her body was discovered by the state police buried under a pile of rocks in a wooded area off Mount Parnassus Road in East Haddam.

On May 30,1983, the defendant, while incarcerated at the New Haven Correctional Center on an unrelated charge, approached corrections officer Clifford Ewalt. He told Ewalt that he had been watching television every night and that he “was waiting for them to find the other body,” “that it was about time that they find the other body.” The defendant then proceeded to give Ewalt directions on where to find a body. While the defendant was giving these directions, Ewalt was drawing a map. He told Ewalt that he had buried a body there, and that Ewalt was to go out and locate the body and come back and tell him that he had done so. After his shift had concluded, Ewalt, following the directions given to him, ended up in a wooded area off Mount Parnassus Road in East Haddam. When he arrived in East Haddam, Ewalt notified the state police, who responded, and Ewalt gave the map to one of the officers, who searched the area and took his statement. No body was found at that time.

In June, 1983, the defendant, who was still being held in a pretrial status, had been transferred to the Hartford Correctional Center. On June 27, 1983, he asked to talk to deputy warden Frank Crose at that facility to discuss a transfer back to the New Haven Correctional Center. Dissatisfied with an apparent offer by the state of “fifty years” concerning the trial that was imminent, he indicated to Crose that “if the state police would give him a five minute head start, he would show them where a body was buried in the woods.”

On July 5, 1983, the defendant, while in the New Haven courthouse to answer other pending charges, escaped from the courthouse but was recaptured later that day by a New Haven police officer. When that officer apprehended him, the defendant said: “[I]f you give me five minutes head start I’ll take you where one of the bodies is buried.” He also indicated to this officer that he had observed a girl around the Veterans’ Administration Hospital in West Haven and that he had picked her up in his van. They “[wound] up somewhere in Haddam or Higganum” where the girl was buried. He also indicated to this officer that a third person, a friend of his, had committed this murder and that the defendant had assisted with the burial.

On September 9,1983, the defendant was sentenced in New Haven on unrelated charges. State police officers Paul Cusson and William Guida, Jr., were present in the court at the time of sentencing. Both officers went to the holding area to see the defendant who had asked to speak to them. After he asked the officers for their names and where he could contact them, they gave him their business cards. He told them that he was going to give them information on something. Nothing further took place at that time.

On September 12, 1983, Cusson and Guida went to the state correctional institution at Somers to see the defendant. They did so because Somers officials had contacted them indicating that the defendant wanted to talk with them. The defendant signed a “willingness to be interviewed” form in order to speak with them on that occasion. On that date, he gave the officers general information about unrelated matters and also inquired whether they knew anything about a Laura Hill, a missing person from West Haven, who, he said, “might [have been] missing in either June or July, 1982.” This was the first time that the defendant had referred to the victim by name. He indicated that he wanted the state to prosecute him “to the fullest so [that if] he had a chance to [escape] at any time during transportation, he would attempt to . ...” At that time, the matter was “left” that the defendant “wanted [the officers] to return with any information concerning what he had told [them] already.”

On September 21, 1983, Guida and Cusson returned to Somers to see the defendant. Prior to this date, they had verified that Laura Hill had been at Veterans’ Administration Hospital in West Haven and that the last time that she had been seen was in early July, 1982. In addition, prior to returning, the police, aware of Ewait’s information and in possession of Ewait’s map, had tried unsuccessfully to locate the grave site in East Haddam. The defendant again signed a consent form on September 21, 1983, to meet with the officers. Guida told the defendant that they had verified that Laura Hill was missing; the defendant told them that they could not “find her” unless he was with them. At the suppression hearing, Guida said that it would be fair to say that after this interview he was “interested” in the defendant as a suspect in the Hill case as well as an unrelated case involving the disappearance of another woman.

Guida and Cusson returned to Somers on September 26, 1983, to talk to the defendant. He signed another consent form to permit them to speak with him, as well as a written waiver of his Miranda rights. Unlike the prior interviews, however, this interview was tape recorded; the defendant was not “specifically” made aware that the conversation was being taped. The defendant was upset with the officers because they had not located the body from the information he had already given them. He indicated rather that he felt that they had located it and were not telling him but were more or less “stringing him along” to get more information from him. The officers told him that they had to obtain more information from him to give to their superiors, “something concrete,” to show what he was telling the officers “was in good faith.” The defendant indicated that if he were taken out, he did not want handcuffs or shackles and that he would like to have the “opportunity to escape or take off.” Moreover, if he were taken out, it would have to be shortly before the weather got cold or they would have to wait until the weather got warm again.- On that date, the officers did indicate to him that an attempt would be made to get him out “to look for items.” At that interview, the police indicated that the defendant’s “best bet” to get out was going to be through them. The police unsuccessfully tried to get authorization to get the defendant out to assist them.

On December 6, 1983, Guida and Cusson again went to Somers to see the defendant; the latter again signed a consent form to be interviewed by them. Between September 26 and December 6, 1983, Guida testified, “we further attempted” to see if there was any way to get the defendant out even though it was beyond the deadline set by him. The December 6, 1983 interview was “preserved” by a cassette tape; the defendant, however, was not made aware that the conversation was being taped. Among other things, he was told that the police needed “a little bit more information to try to find these items [relating to the Hill homicide] or something new . . . something a little more concrete.” When mention was made of Laura Hill, the defendant said that he had told them “as much as he [could]” and that “[they were] going to have to wait again, until the summer time before he would be willing to go out and show [them] . . . . ” There was further discussion about taking the defendant out at a later time. There was an unrelated case concerning which the police wanted information from him and in which he was a possible suspect. It was again indicated to the defendant that if he were going to get out that the two officers could not do it themselves, that they would need the help of others and so he should give them information to assist in this. According to Guida, they “really concentrated a lot on trying to find [Laura Hill’s] location and the location of, at least, her clothing.” Cusson indicated to the defendant that revealing .the location of the victim’s clothing would be “least harmful” to him because it would be difficult to prove the clothes belonged to Laura Hill and that the probability of ever proving the clothes were hers “probably [was] about zip.” The defendant asked them if the police still had his van or whether they were going “to get [it] again.” There was some dialogue about something “that could be found in or about his van” that might be related to Laura Hill. In order that he remain cooperative with them, the officers indicated that they were willing to try again to get him out, but needed more information.

On March 2, 1984, Graham received a message from Somers that the defendant wanted to have them contact him by March 9, 1984, or “all bets [were] off.” At that time, the defendant also requested that the police bring him his address book and watch, which had been seized earlier by the police, by March 9. Guida and Graham later visited the defendant at Somers and returned his watch and address book to him. They wanted the defendant, who had signed a consent to this interview, to continue to cooperate with them. There was discussion about an unrelated matter that also involved the discovery of the body of a female in early 1982. The defendant brought up the name of Laura Hill saying that he could take them to the location of her body and clothing. He also indicated that he wanted his van released from police custody. The van had been seized in connection with the investigation of another case.

On March 19, 1984, the defendant sent a message to the police concerning the release of his van. On March 21, 1984, Graham and Guida went to Somers to see the defendant, who signed the necessary forms in order to talk to the officers. The discussion included the unrelated crime referred to earlier, as well as the disappearance of Laura Hill. The defendant said that his van had to be released from police custody by a certain date so as to be available to a friend of his who was leaving the state. The police said that they would check into the possibility of getting the van released but that they doubted they could meet the deadline that he had set.

On May 1, 1984, Graham went to Somers and saw the defendant, who again signed the necessary form to see the police. Graham had with him a court order that the defendant’s van be returned to him. The defendant signed it, acknowledging receipt of the van, and thereby he was permitted to dispose of that vehicle in any manner he wished. As to Laura Hill, the defendant said that if he were taken out, he would show the police where the body and clothing of Laura Hill were located. After that meeting, Graham contacted a state’s attorney concerning obtaining a writ of habeas corpus to take the defendant out, but his efforts were not successful.

On June 27,1984, the state police located the skeletal remains of Laura Hill buried beneath a pile of rocks adjacent to a stone wall in a wooded area off Mount Parnassus Road in East Haddam. At that time, the police took some Polaroid photographs of the burial site; a part of the skeletal remains was visible in the photographs.

On June 29, 1984, Graham and Cavanaugh visited the defendant at Somers. Prior to the interview on that date, the defendant signed the consent form to speak to the officers and he was given Miranda warnings which he indicated that he understood. After he was asked whether he was willing to talk to the officers and said that he was, the officers produced colored Polaroid photographs taken on June 27. The defendant looked at them and asked what they were supposed to be. Graham indicated that he ought to know because he had provided the directions to the remains of Laura Hill and that this in fact was where the remains had been found. The defendant responded that “someone has moved the rocks, or the rocks had been moved.” Nothing further was said about the photographs or the rocks or the remains. The defendant also indicated that if the police were able to obtain a writ of habeas corpus he would go out with them and show them the location of Laura Hill’s clothing. He indicated that there might be something in the van that might tie him into “the disappearance [in] the case involving Laura Hill.” In that same interview, he also provided additional information on a number of cases that “he had possible information of.”

On July 11, 1984, Graham and Cavanaugh returned to Somers to talk to the defendant who signed the necessary consent forms to do so. This interview was at the request of the police. The inventory of articles in his van, concerning which there was some discrepancy claimed by the defendant, was discussed. On September 26, 1984, the defendant was arrested for the murder of Laura Hill.

On July 24, 1986, in a comprehensive oral opinion, the trial court suppressed all the defendant’s statements to the state police from the September 26, 1983 statement through and including the statement of July 11, 1984, with the exception of that portion of the conversation of June 29, 1984, that took place when the state police showed the defendant “a picture of the remains of the victim . . . Laura Hill.” At the conclusion of the testimony in the suppression hearing, defendant’s counsel withdrew his motion to suppress as to the statements to corrections officer Ewalt on May 30, 1983, and to deputy warden Crose on June 27, 1983.

The trial court denied suppression of the defendant’s statements to the state police on September 9, 1983, and September 12, 1983. Essentially, the court found that these statements had been voluntary and that his Miranda rights had been validly waived. In doing so, it found that the police had made him no improper promises or inducements and that his will had not been overborne. As to the statement of September 21, 1983, the court found that the defendant had first articulated a proposed deal with the state police when he had agreed to lead them to the victim’s body and other evidence if he was taken out of prison for that purpose. It also found that there had been no “explicit bargaining” by the police with the defendant.

In suppressing all of the statements from September 26, 1983, on, with the exception of the portion of the June 29, 1984 statement, the trial court stated that “the character of the relationship of the state police and the defendant changed in what the court believes is a constitutionally decisive way.” Surveying the circumstances concerning those statements, the trial court found that, as of September 26, 1983, “heavy bargaining” began when the officers “explicitly stated” that they understood that the defendant would try to escape if allowed out of prison but that attempts would be made for this so that he could lead them to the evidence. This pattern of activity, the trial court found, was “aggressively pursue[d]” by the police over a long period of time as they tried “to deliver on a deal first suggested by the Defendant.” In finding these statements involuntary, it also said that incriminating responses had been “impermissibly induced” over the period covering those statements.

In refusing to suppress that portion of the June 29, 1984 statement, the trial court said that while showing the picture to the defendant was interrogation, the circumstances, which the trial court analyzed, demonstrated that he “knowingly, understanding^, voluntarily] and effectively waived his Miranda rights and [that] the state [had] met its heavy burden in showing that.” It also found that “the promises or attempts to strike a deal which necessitated the suppression of the statements after 9/21[/83] do not serve as a reason to suppress the Defendant’s reaction to the display of a picture.” In doing so, it indicated that in order “to find that a promise by the police requires an incriminatory statement to be held involuntary, it must be shown that the promise induced the statement.” The “recurrent offers to take the Defendant out on the writ,” could not be held, the trial court determined, to have induced the incriminatory responses that he allegedly made when he saw the picture. Rather, the trial court reasoned that “one would think that the defendant would have had every reason not to show any recognition of the picture if he still hoped to keep up police interest in getting him out on the writ.” Moreover, the trial court maintained that “concomitantly one would think the police would have had every reason not to so have shown him the picture if they wanted to secure more information from the Defendant.” Therefore, it determined that the showing of the picture “was not part of the bargaining and offer of a benefit process” that it felt required the suppression of the other statements.

In claiming that the trial court erred, the defendant argues that the nonsuppressed portion of the June 29, 1984 statement was involuntary and contends that there was no temporal attenuation between the police conduct from September 26, 1988, onward and the June 29, 1984 statement. He stresses that suppression was granted of all the statements between those dates and, indeed, also as to the balance of his June 29, 1984 statement and his later statement of July 11, 1984, because they were rendered involuntary by the conduct of the police from September 26, 1983, on. In addition, he argues that there was no “ ‘break in the stream of events . . .’ ” referring to Darwin v. Connecticut, 391 U.S. 346, 350-51, 88 S. Ct. 1488, 20 L. Ed. 2d 630 (1968), between all of the statements found involuntary and that portion of his June 29, 1984 statement found to be voluntary, that could support the challenged ruling. The state, on the other hand, argues that there was a meaningful temporal attenuation between the statement found voluntary and those that were not. It also claims that the record demonstrates significant intervening circumstances between the June 29, 1984 statement that was found voluntary and all those that were not. These circumstances, it maintains, point to the lack of taint of the June 29, 1984 statement by the prior involuntary statements. The state, in addition, argues that any “alleged illegality” by the police did not overbear the defendant’s will and violate his rights.

The use of an involuntary confession in a criminal trial is a denial of due process of law. Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); Jackson v. Denno, 378 U.S. 368, 376, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961); State v. Shifflett, 199 Conn. 718, 727, 508 A.2d 748 (1986). It is the burden of the state to prove the voluntariness of a confession by a fair preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Chung, 202 Conn. 39, 48, 519 A.2d 1175 (1987); State v. Stankowski, 184 Conn. 121, 131, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). In State v. Shifflett, supra, 727-28, we pointed out: “ ‘We have stated that “ ‘ “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 . . . .’ Rogers v. Richmond, 365 U.S. 534, 544 [81 S. Ct. 735, 5 L. Ed. 2d 760] (1961).”’” State v. Staples, [175 Conn. 398, 408, 399 A.2d 1269 (1978)]; see State v. Derrico, [181 Conn. 151, 163, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980)]. “The ultimate test remains . . . Ts the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) . . . .’ State v. Stankowski, [supra, 132].’’ State v. Derrico, supra, 161. The determination, by the trial court, whether a confession is voluntary must be grounded upon a consideration of the circumstances surrounding it. State v. Chung, supra, 48; State v. Carter, 189 Conn. 611, 622, 458 A.2d 369 (1983); State v. Derrico, supra, 165.

This determination of voluntariness and admissibility, in the first instance, is a question of fact for the trial court to resolve in the exercise of a legal discretion in accordance with constitutional standards of due process. State v. Derrico, supra, 162-63. This, of course, includes decisions on questions of credibility presented to the trial court. State v. McCarthy, 197 Conn. 247, 258, 496 A.2d 513 (1985). “Though the question is ultimately factual, our usual deference to factfinding by the trial court is qualified on the question of voluntariness by the necessity for an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence.” State v. Smith, 200 Conn. 465, 478, 512 A.2d 189 (1986); State v. Chung, supra, 54.

Even under “the totality of circumstances test,” a confession may not be “obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. . . .” Hutto v. Ross, 429 U.S. 28, 30, 97 S. Ct. 202, 50 L. Ed. 2d 194 (1976), quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S. Ct. 183, 42 L. Ed. 568 (1897); Brady v. United States, 397 U.S. 742, 753, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); State v. McCarthy, supra, 256; C. McCormick, Evidence (3d Ed.) pp. 376-81. Where, as here, we consider an incriminating response found voluntary and admissible after a number of such prior statements have been found to be involuntary, we have said in a related context: “ ‘[W]here the prosecution seeks to use a confession . . . uttered after an earlier one not found to be voluntary, [it] has the burden of proving that the second confession was not a product of improper threats or coercion and that it was not directly produced by the existence of the earlier confession.’ Darwin v. Connecticut, [supra, 350-51] (Harlan, J., concurring in part and dissenting in part). See United States v. Bayer, 331 U.S. 532, 540-41, 67 S. Ct. 1394, 91 L. Ed. 1654 (1947); State v. Darwin, 161 Conn. 413, 425, 288 A.2d 422 (1971). Not every confession that follows an invalid admission of criminal involvement is a tainted product of the earlier statement. United States v. Bayer, supra, 539-41; State v. Darwin, supra, 425. Whether the second confession is a result of the prior confession and therefore inadmissible is to be determined ‘in view of the totality of the circumstances, considering especially whether there was a break in the stream of events between the two statements.’ Darwin v. Connecticut, supra, 350-51; Clewis v. Texas, 386 U.S. 707, 710, 87 S. Ct. 1338, 18 L. Ed. 2d 423 (1967); Tanner v. Vincent, 541 F.2d 932, 936 (2d Cir. 1976), cert. denied, 429 U.S. 1065, 97 S. Ct. 794, 50 L. Ed. 2d 782 (1977).” State v. Derrico, supra, 165-66. Later, in State v. Shifflett, supra, 741, we recognized that “[i]n assessing the causal connection between an involuntary statement and a subsequent confession, courts have considered the temporal proximity of the illegality and the confession, the presence of intervening circumstances, and the flagrancy of the official misconduct.” See Brown v. Illinois, 422 U.S. 590, 603-604, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); State v. Ostroski, 201 Conn. 534, 547, 518 A.2d 915 (1986).

Our analysis of the validity of the trial court’s finding of voluntariness begins with the concession of the defendant in his brief that “the remains of the victim [Laura Hill] were located by the police as a result of information independent of [his] statements of September 21, 1983—July 11, 1984.” We realize that in doing so, he also argues that this is not dispositive because, while conceding the source of the information leading to the discovery is important, he nevertheless maintains that the main concern is that he made a statement expressing recognition when shown photos of the grave site. The application to the challenged ruling of the three factors elucidated in such cases as Brown v. Illinois, supra, and State v. Shifflett, supra, in the totality of the circumstances in this case is thus helpful in our inquiry of the defendant’s challenge of the trial court’s ruling.

First, there was a significant temporal attenuation between the defendant’s other suppressed statements and that of June 29, 1984. There had not been any meeting or interview between the state police and the defendant for almost two months prior to June 29, 1984. It is true that the police themselves continued to try to obtain a writ of habeas corpus in order to get the defendant out of prison to help them to locate Laura Hill’s body and clothing as well as to lead them to the clothing of another homicide victim. The police, however, after the meeting of May 1, 1984, and prior to June 29, 1984, located the Hill grave site based on information wholly independent of any statements illegally obtained from the defendant. The passage of almost two months in this case is far longer than the approximate twenty-four hour period in Shifflett and the approximate thirty-six hour period in Ostroski, both of which we found constituted a sufficient temporal attenuation under the circumstances. As we pointed out earlier, the challenged ruling goes to the defendant’s response to the photos which occurred at the very beginning of the June 29, 1984 interview and just after he had received, understood and validly waived his Miranda warnings. While not conclusive, “[t]he fact that a suspect chooses to speak afer being informed of his rights is, of course, highly probative.” Oregon v. Elstad, 470 U.S. 298, 318, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). The circumstance that the balance of his June 29, 1984 interview was suppressed, as was his later interview of July 11, 1984, does not require or contribute to requiring suppression of the voluntary portion of the June 29, 1984 interview. The temporal attenuation served greatly to dissipate the involuntary and induced nature of the other suppressed statements.

The presence of intervening circumstances is clearly evident here. The discovery of the skeletal remains of Laura Hill on June 27, 1984, was a significant “break in the stream of events.” See State v. Derrico, supra, 166. The remains were concededly located by information from the defendant himself wholly independent of any of the police conduct that caused the court to suppress the other statements. This discovery undermined the defendant’s ability to bargain from strength, as previously, with the police to get him out. The claimed suppressible response to the photos all but disappears when one considers this discovery of the grave site in confluence with a number of relevant factors. Some are that the defendant validly told authorities where the body was, and its location was memorialized by a map drawn and detailed under his supervision. In addition, as the trial court correctly opined, his actual response to the photos could not be attributed to the hitherto “recurrent offers” of the police to get him out because it would have been entirely reasonable not to expect him to show any recognition at all if he still had hopes of getting out. This is supported by the consideration, as the trial court observed, that it would also be reasonable to believe that the police would not have shown him the picture if they had wanted to get more information from him about Laura Hill. In the totality of the circumstances, because the discovery of the victim’s body naturally led to a change in the character of the police bargaining with the defendant, there was a “break in the stream of events.”

The component of the “flagrancy” of police misconduct which finds sufficient support both in the evidence and on relevant legal principles for the trial court’s suppression of all of the other statements, was properly found lacking as to the challenged ruling. The trial court found that the “recurrent offers” to take the defendant out on a writ could not be found to have induced the defendant to respond as he did to the picture. It determined that the showing of the pictures was “not part of the bargaining and offer of a benefit process” which required the suppression of other statements. The record supports these determinations in the light of the totality of the circumstances. To make such a response involuntary, there would have had to be present the confluence of a promise or promises and a confession obtained thereby; this was not the case. See, e.g., United States v. Robinson, 698 F.2d 448, 455 (D.C. Cir. 1983).

The ultimate question of whether a defendant’s will has been overborne, thus resulting in an involuntary statement in a particular case, involves, as noted, an assessment of the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation. Schneckloth v. Bustamonte, supra, 226. Some of those also 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. Id.; State v. Toste, 198 Conn. 573, 584, 504 A.2d 1036 (1986). As to the June 29, 1984 statement under attack, the trial court specifically found that the defendant had been fully advised of his rights and had made a constitutionally valid waiver of his Miranda rights and, even prior to being advised of his rights, had signed a prison form indicating that he was willing to talk to the officers. It found that, at that time, the defendant “was calm, rational, friendly, no threats were made, he didn’t seem to be suffering from pain, [and] he wasn’t restrained.” Earlier in its oral decision, it found that the defendant had had “extensive prior contact with the law” so that he understood his rights. With reference to an earlier interview, the trial court said that the defendant had appeared “to be articulate and intelligent.” During the interviews with the state police from September 26, 1983, through July 11, 1984, he was in custody in Somers for a sentence in an unrelated crime, so he was hardly in “custody” specifically for these interviews. The defendant was not even required to speak to the police but voluntarily did so.

The trial court’s ruling was not in error. It was supported by substantial evidence and grounded on principles of the applicable law.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in pertinent part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”

       Crose also testified that the defendant indicated to him that “the state’s case was based primarily on the statement or on one witness and that if he did not appear at trial to testify against him, then the state would not have much of a case. He indicated that he was doing what he could to make sure that didn’t happen.”

       Two other New Haven police officers, Arthur Granucci and Robert DeNuzzo, who had contact with the defendant after his apprehension on July 5, 1983, testified that the defendant told them that in exchange for getting a five minute start he would tell them about a murder and where the body was buried. One officer said that the defendant told them he had buried the body in East Haddam by “a wall area.”

       This was the first of the meetings between the state police and the defendant.

       At that time, the defendant also indicated that he would show Graham the location of the clothing from the body of a female found in Lyme in early 1982.

       On direct examination of Graham, he was asked if, at the time the Polaroid photographs were taken by the police, “anything [had] been moved or rearranged in the area where the skeletal remains were found.” He answered, “Yes,” and when asked, “What?” Graham answered: “Several rocks had been removed by Detective David Bates who had made the initial discovery of the skeletal remains and the slight portion of the skull was visible within the pile of rocks.”

       At the time Graham showed the photographs to the defendant, who examined them, Graham testified that the following transpired:
      “Q. And you said you showed these Polaroid photographs to Mr. Sehroff?
      “A. Yes, I did.
      “Q. Did he look at them.
      “A. Yes, he did.
      “Q. And did he say anything upon looking at them?
      “A. Yes, he did.
      “Q. What did he say?
      “A. He asked me what these were supposed to be.
      “Q. And did you respond to that?
      “A. I indicated to him that he ought to know what they were because he provided directions concerning the location of where the remains of Laura Hill [were] found and this in fact [was] where the remains had been found.
      “Q. And did he respond to that explanation?
      “A. Yes. His statement to me at that time I recall as being, well, someone has moved the rocks, or the rocks had been moved.
      “Q. Were there any further discussions at that time about those photographs or the rocks or the remains?
      “A. I don’t believe so.”

       The trial court’s oral opinion comprises thirty-five pages in the trial transcript. The suppression hearing extended over a period of five days.

       At this time, the trial court said: “In making this ruling the Court is assuming the body was located solely as a result of the direction given Ewalt at the New Haven Jail, or in the 9/12 or 9/21 conversations.”

       On this branch of its claim, the state’s brief recognizes that it is challenging the trial court’s finding that all the defendant’s statements made between September 26, 1983, and May 1, 1984, were involuntary. It also acknowledges that it filed an untimely motion to file a statement under Practice Book § 4013 to “present this alternative theory” to this court. That motion was granted. Because we find no error in the trial court’s ruling on the June 29, 1984 statement, we need not discuss the state’s alternative theory.

       In pressing his claim of error, the defendant contends that not only did his June 29, 1984 statement follow a series of statements found to have been obtained illegally, but also that the trial court suppressed the balance of his statement of June 29, 1984, as well as his later one of July 11, 1984. As to these last two statements, we note that the trial court did not undertake any specific analysis as to what statements were obtained on those two occasions as it had done at length as to the pre-June 29, 1984 statements it ordered suppressed. It is true that it did point out, as it did regarding the earlier suppressed statements, that on June 29, 1984, the police did not abandon the “tantalizing prospect” of obtaining a writ to take the defendant out to get further information. Even the defendant’s brief as to the June 29, 1984 interview can refer only to his “offer” to help the police locate Laura Hill’s clothing and help with information on other cases once he knew that the police had discovered Hill’s remains.
      As to the July 11, 1984 statements ordered suppressed, the trial court did not refer to any specific incriminatory statement the defendant made. Again, the defendant’s brief refers only to a discussion of certain discrepancies claimed by the defendant as to the inventory of items in Ms van. It would appear, however, that from September 26, 1983, through July 11, 1984, the police had endeavored to keep the defendant cooperative to obtain information not only on the Laura Hill case but on other matters.
      In any event, we cannot attach the significance claimed by the defendant to the suppression of the balance of his June 29, 1984 statement and that of July 11, 1984, both later in time, to his statement given at the very start of the interview of June 29, 1984.

       There is no indication that the defendant ever showed the police where Laura Hill’s clothing was to be found or that the police ever, in fact, found her clothing.

       Although the trial court did not explicitly refer to Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), it appears that it implicitly determined that the “taint” of the suppressed statements had no unconstitutional nexus with the June 29, 1984 statement which it found voluntary and admissible.

       In ordering suppression of the defendant’s post-September 21, 1983 statements for the reasons given, the trial court specifically observed that “this is not . . . Oregon v. Elstad, [470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985),] a situation where seriatim confessions may be held admissible after proper Miranda warnings where a prior confession was invalidated because of a technical failure to comply with the Miranda rules. Here the Court finds the statements after 9/21 were involuntary and the improper inducements . . . continue[d] from 9/26 onward . . . . ”
      We agree with the trial court that this was not an Oregon v. Elstad situation. In Elstad, the United States Supreme Court said: “We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” Oregon v. Elstad, supra, 318. In reaching that determination, it also said: “Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” Id., 309.

       Although there is no such finding,.the court file indicates that the defendant was born in 1954.