author: Callahan, J.

text:
    State of Connecticut v. Scott A. Northrop
    (13513)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.

      Argued November 3, 1989
    decision released January 9, 1990

      Antonio B. Braz, with whom was Scott P. Moser, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Patrick Clifford, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Scott Northrop, was charged with the crime of murder in violation of General Statutes § 53a-54a. He was tried to a jury and convicted. The trial court subsequently sentenced him to a term of imprisonment of forty-five years. The defendant does not contest the sufficiency of the evidence to sustain his conviction. He claims, rather, that the trial court erred in failing to suppress statements he made to the New Haven police and in failing to suppress tangible evidence derived therefrom. He also claims that the trial court erred in denying his motion for a new trial because of the impropriety of the state’s closing argument.

The record reveals that the charge against the defendant arose out of the murder of Edward DuPaul, a thirty-four year old New Haven fireman, who was shot to death at approximately 11:15 p.m. on May 18, 1987, as he sat in his automobile talking to Mary Ann Shusta, while parked on a dirt road in a marshy area of New Haven near the New Haven-East Haven border. While the victim and Shusta were conversing, a person wearing dark clothing approached the driver’s side of DuPaul’s car and fired three shots from a .38 caliber revolver into the victim’s head and body through the driver’s side window. DuPaul died the following afternoon in a New Haven hospital.

On May 19,1987, in the course of their investigation of the incident, New Haven detectives learned that the defendant had been seen the previous night, with a pistol in his possession, at a convenience store near the site of the shooting. Consequently, that evening, Detective James Ponteau, with two East Haven police officers, went to the defendant’s residence at 29 Stoddard Road in East Haven to talk to him. The house at 29 Stoddard Road, where the defendant lived with his grandmother and aunt, is near the dirt road where the shooting occurred.

At the house Ponteau informed the defendant that the police wished to talk to him because they were investigating a shooting that had taken place the previous night in New Haven and that they had a report that he had been seen with a gun prior to the shooting, at a store in the area. The defendant told the detective that he had indeed been at the store but he denied having a gun or having anything to do with the shooting.

After this brief exchange, at Ponteau’s request, the defendant agreed to go with the detective to New Haven police headquarters to give a statement. The defendant’s aunt, Georgeann Pecoraro, asked to accompany her nephew, and Ponteau agreed. Thereafter, the three drove to New Haven in Ponteau’s unmarked police car, the defendant in the front passenger seat and his aunt in the rear. The defendant was not handcuffed or otherwise restrained during the trip.

At police headquarters the defendant was taken to an interview room while his aunt, despite her expressed desire to remain with the defendant, was directed to sit in another area of the detective bureau. Ponteau and the defendant were joined in the interview room at approximately 7 p.m. by Detective Mel Cartocetti. Cartocetti introduced himself to the defendant and informed him that he was not under arrest and that he could leave police headquarters whenever he wished to do so. Cartocetti, thereafter, read the defendant his Miranda rights and then explained them to him sentence by sentence. The defendant stated that he understood his rights and that he was willing to give a statement. He then signed a printed waiver of rights form.

Cartocetti and Ponteau thereafter conversed with the defendant for approximately thirty-five or forty minutes about his activities on May 18. Subsequently, a tape recorder was activated and Cartocetti again read the defendant his Miranda rights. He then interviewed the defendant on tape concerning the events of the previous night. During the recorded interview the defendant reiterated that he had been at the convenience store on the night of May 18 but denied having a gun or having anything to do with the shooting. He also acknowledged during the taped interview that he had come to the police station voluntarily to try to assist the police, that he understood all the questions, that he had been treated fairly, that he knew he was not under arrest, that he was not kept against his will, and that he had been told he could stop and walk out of headquarters at any time. Further, he refused to undergo a polygraph examination or consent to a search of his residence. At the conclusion of the interview at approximately 9:15 p.m., Cartocetti drove the defendant and his aunt to their house in East Haven.

After driving the defendant and his aunt home, Car-tocetti parked 75 to 100 feet away and remained in his car. In approximately fifteen minutes, he received a radio call informing him that a search warrant had been issued for the residence of the defendant at 29 Stod-dard Road. At that point he left his car, approached a side door of the house and informed the defendant’s grandmother and aunt, who were inside, that a warrant had been procured to search their home and that it would be executed shortly. Although invited in, he chose to remain on the porch and await the arrival of other officers. Other detectives and uniformed officers were on the scene shortly. When the search warrant arrived at about 10 p.m., a copy was given to the defendant’s grandmother and a search was commenced.

Shortly after the search was under way, Detective Sergeant Michael Sweeney arrived at the premises and asked the defendant if he would walk outside and speak with him. The defendant agreed to do so and he and Sweeney walked down the driveway towards Sweeney’s unmarked car. During this time Sweeney did not search the defendant or restrain him in any manner, and he did, once again, advise him of his Miranda rights. When the two arrived at Sweeney’s car the defendant agreed to speak with Sweeney but declined his invitation to sit in the automobile.

Standing next to the car, Sweeney asked the defendant if he had shot the victim. The defendant denied doing so but displayed no reluctance to discuss the incident. After a short period the defendant left Sweeney and unaccompanied went back into the house to obtain a jacket. When he returned he continued the conversation with Sweeney and soon thereafter admitted that he had shot DuPaul.

After the defendant’s admission, Sweeney requested that the defendant return with him to New Haven police headquarters to give a statement. The defendant refused to do so, stating that he was afraid and wished to stay at home. He did, however, agree to give a taped statement in Sweeney’s car. Sweeney, therefore, sent to New Haven for a tape recorder, which was delivered in about fifteen minutes. When the tape recorder arrived, Sweeney and the defendant entered the front seat of Sweeney’s car and Detective Sergeant Robert P. Lillus sat in the rear. When the tape recorder was turned on, the defendant stated that he was voluntarily giving the statement, that he was not under the influence of liquor or drugs, that he was not being detained, that he had been advised of, and understood, his constitutional rights and that he had signed a waiver of those rights. He, thereafter, again confessed to having shot the victim. Shortly after the statement was completed the defendant was arrested and taken to New Haven police headquarters.

The search of the defendant’s home on May 19 yielded a .357 caliber handgun. A ballistics test revealed that it was not the gun used in the shooting. Subsequent to May 19, the police obtained another search warrant for the defendant’s residence. During the execution of the second warrant they discovered and seized a .38 caliber revolver. A ballistics test proved that the .38 caliber revolver had fired the bullets that had killed the victim.

At the time of the events in question the defendant was eighteen years old and was employed as a roofer for a company in East Haven. His mother, who lived in Florida and had seen the defendant only twice in the previous two years, testified that she was not sure the defendant had completed the ninth grade and that she “believed” that he was at a fifth or sixth grade level at the time he terminated his formal education. She also testified that the defendant had difficulty reading and writing and in comprehending things that were read or said to him. She stated that the defendant had been diagnosed as having a learning disability and had been in special education classes since the first grade. The defendant had acknowledged, when questioned by Car-tocetti during his first visit to police headquarters, however, that he could read, write and understand English.

Prior to trial, the defendant filed a motion to suppress his statements to the police and to suppress any evidence seized pursuant to the search warrants, including the .38 caliber handgun found to be the murder weapon, because the search warrants had been issued on the basis of his allegedly illegally obtained statements. See Wong Sun v. United States, 371 U.S. 471, 486, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The trial court denied the defendant’s motion in its entirety and allowed the state at trial to introduce the statements made to Cartocetti and Sweeney as well as the evidence seized pursuant to the search warrants.

I

The defendant claims in this appeal that the trial court erred in denying his suppression motion because his statements were obtained while he was in custody without probable cause in violation of the fourth amendment, that any waivers of his Miranda rights were not knowing, voluntary and intelligent, and that his statements were involuntary. We disagree.

A

The defendant first claims that he was continually in custody throughout the night of May 19, from the moment he entered Ponteau’s police car for the ride from his home in East Haven to police headquarters in New Haven. He argues, therefore, that the trial court should have suppressed the statement given to Car-tocetti at New Haven police headquarters and the statements given to Sweeney outside the defendant’s residence in East Haven because on both occasions he was in police custody without probable cause.

The state appears to concede that there was no probable cause to arrest the defendant until after he had admitted the crime. The state claims, however, that the defendant was not in custody until he was formally arrested after giving his taped confession to Sweeney. The question, therefore, is whether the defendant was in custody without probable cause at any time prior to his formal arrest. We agree with the state that the defendant was not in custody at New Haven police headquarters or when he gave his initial unrecorded admission to Sweeney. We cannot agree, however, that the defendant was not in custody after he had admitted the murder to Sweeney and was placed in the police car to give a taped confession. At that point in time a reasonable person certainly would not have felt free to leave. See State v. Acquin, 187 Conn. 647, 655-56, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983). By that time, however, there was probable cause to arrest the defendant. He also had been given Miranda warnings, and he had validly waived his Miranda rights. Part B, infra.

It is well established that statements obtained through custodial interrogation following the seizure of a person without probable cause, in violation of the fourth amendment, should be excluded unless intervening events break the causal connection between the arrest and the confession. Taylor v. Alabama, 457 U.S. 687, 690, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982); Dunaway v. New York, 442 U.S. 200, 216, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 600-604, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); State v. Young, 191 Conn. 636, 651, 469 A.2d 1189 (1983). “A person is in custody only if, in view of all the surrounding circumstances, a reasonable person would have believed he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 64 L. Ed. 2d 497, reh. denied, 448 U.S. 908, 100 S. Ct. 3051, 65 L. Ed. 2d 1138 (1980); State v. Hoeplinger, 206 Conn. 278, 287, 537 A.2d 1010 (1988).” State v. Pittman, 209 Conn. 596, 608, 553 A.2d 155 (1989). “[T]he ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest. [Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977)].” California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983).

“The trial court’s determination that the defendant was not in custody is a finding of fact. State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982). That finding of fact by the trial court will not be overturned unless it is clearly erroneous. Id.; see Practice Book § 4061; State v. Young, [supra, 652]. We will, however, carefully review the record to ascertain whether the trial court’s finding is supported by substantial evidence. State v. Toste, 198 Conn. 573, 580, 504 A.2d 1036 (1986); State v. Alexander, 197 Conn. 180, 185, 496 A.2d 486 (1985).” State v. Pittman, supra, 606.

Our prior recitation of the facts demonstrates that at New Haven police headquarters on May 19, 1987, the defendant acknowledged that he had voluntarily come to the station to assist the police in their investigation and that he was not being held against his will. He also acknowledged that he had been told that he was not under arrest and that he could stop answering questions and leave at any time. Those acknowledgments coupled with the circumstance that, after giving an exculpatory statement, the defendant and his aunt were, in fact, driven home, lends strong support to the trial court’s implicit finding that the defendant was not in custody at New Haven police headquarters. It is difficult to conceive of a “reasonable man” who would not feel free to leave after having been told so many times and in so many different ways that he could. See Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); Oregon v. Mathiason, supra, 495.

A person, even if a suspect in a crime, is not in custody every time he is asked questions at a police station. California v. Beheler, supra, 1125; Oregon v. Mathiason, supra; State v. Pittman, supra, 607. In this instance the trial court had before it substantial evidence that the defendant was “free to leave” New Haven police headquarters at any time and was, therefore, not in custody. Consequently, we cannot say that the trial court was clearly erroneous in so finding. See State v. Pittman, supra, 606; State v. Young, supra, 652.

The same reasoning applies to the question of whether the defendant was in police custody without probable cause at the time he gave his initial unrecorded admission to Sweeney outside the defendant’s residence in East Haven on May 19, 1987. On that occasion the defendant agreed to accompany Sweeney outside to talk while his residence was being searched. The two, thereafter, walked down the driveway toward Sweeney’s car. The defendant was not handcuffed or restrained in any way. When they arrived at Sweeney’s car, the defendant declined Sweeney’s invitation to sit in the car, apparently preferring to remain standing outside. It is significant that Sweeney acquiesced to the defendant’s preference. It is also significant that while speaking with Sweeney the defendant returned unaccompanied to the house to obtain a jacket and returned unaccompanied to continue the conversation. That activity clearly does not indicate the “restraint on freedom of movement” associated with a formal arrest. Oregon v. Mathiason, supra, 495. Further, even after he had confessed, the defendant acknowledged to Sweeney that he was not being detained. Although at that point he may have been mistaken, his subjective belief that he was not in custody is of “special significance” in assessing the degree of restraint previously imposed. State v. Derrico, 181 Conn. 151, 159, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). With the evidence it had to consider, we cannot say that the trial court was clearly erroneous when it implicitly determined that the defendant was not in custody at the time he gave his initial unrecorded admission to Sweeney. State v. Young, supra, 652; see also State v. Jones, 193 Conn. 70, 79-80, 475 A.2d 1087 (1984).

Obviously, after the defendant had admitted the commission of the crime, Sweeney had probable cause to take him into custody and, in fact, did so by placing him in the police car. State v. Acquin, supra, 655-56. By that time, however, as previously noted, the defendant had been given his Miranda warnings on several occasions and had executed a written waiver of his Miranda rights.

B

Next, the defendant claims that any waivers of his Miranda rights secured by the New Haven police were invalid because he did not voluntarily, knowingly and intelligently waive those rights. He also claims that the statements he gave the police were involuntary. He does not argue that Miranda warnings were not given or that they were untimely or incomplete, or that the police used excessive or oppressive physical force or psychological ploys to extract his waivers or his statements. The defendant’s argument appears to be, rather, that his waivers were invalid and his statements involuntary because, under the circumstances, his low intellect and lack of comprehension made it impossible for him to execute a valid waiver or to resist the police pressure to confess. We disagree.

To be valid, a waiver must be voluntary, knowing and intelligent. Miranda v. Arizona, 384 U.S. 436, 475, 478, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); State v. Gonzalez, 206 Conn. 213, 217, 537 A.2d 460 (1988); State v. Boscarino, 204 Conn. 714, 743, 529 A.2d 1260 (1987). The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. State v. Hernandez, 204 Conn. 377, 395, 528 A.2d 794 (1987); State v. Chung, 202 Conn. 39, 48, 519 A.2d 1175 (1987); State v. Smith, 200 Conn. 465, 481, 512 A.2d 189 (1986). Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 2d 1461 (1938); State v. Boscarino, supra; State v. Chung, supra.

In support of his argument that he was intellectually incapable of making a voluntary, knowing and intelligent waiver of his Miranda rights the defendant presented only the testimony of his mother. As previously indicated, she testified that the defendant had a learning disability, that she was not sure that he had completed the ninth grade, and that she “believed” he was functioning at a fifth or sixth grade level when he left school. It was her opinion that the defendant would have difficulty comprehending some of the words employed by the detectives in warning the defendant of his rights and in interrogating him. His mother, however, had seen the defendant only twice in the previous two years. Her testimony, if it is entitled to any weight, is certainly not determinative of the defendant’s ability to execute a knowing and intelligent waiver. See State v. Gonzalez, supra, 218; State v. Boscarino, supra, 744. Even some degree of mental retardation does not by itself prevent a defendant from knowingly and intelligently waiving his Miranda rights. Dunkins v. Thigpen, 854 F.2d 394, 400 (1988), cert. denied, 489 U.S. 1059, 109 S. Ct. 1329, 103 L. Ed. 2d 597 (1989); see also State v. Madera, 210 Conn. 22, 45, 554 A.2d 263 (1989), and cases cited therein; State v. Boscarino, supra, 744; State v. DeAngelis, 200 Conn. 224, 235, 511 A.2d 310 (1986); State v. Toste, supra, 579.

The trial court had before it evidence that despite any intellectual shortcomings the defendant was employed as a roofer and that he commuted to work on public transportation. There was also evidence that the defendant’s Miranda rights were read to him on at least three occasions and that he understood them each time they were read and that he signed a written waiver of those rights. “A defendant’s express written and oral waiver is ‘strong proof’ that the waiver is valid. North Carolina v. Butler, supra [373]; State v. Derrico, [supra, 164].” State v. Chung, supra, 50-51. Further, the record reveals that the defendant responded appropriately to the questions addressed to him concerning his rights and also to questions concerning the crime propounded to him by the police. In short, there was substantial evidence from which the trial court could have found that the defendant was capable of and did in fact voluntarily, knowingly and intelligently waive his Miranda rights. That finding will be reversed only if the trial court was clearly erroneous. United States v. Alderdyce, 787 F.2d 1365, 1368 (9th Cir. 1986). It was not.

The state must also prove the voluntariness of the defendant’s statements by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Barrett, 205 Conn. 437, 451-52, 534 A.2d 219 (1987); State v. Chung, supra, 53. A review of the record reveals it to be devoid of any indication of threats or coercion or any overt psychological pressure applied by the police. It appears from the record, moreover, that the various interrogations of the defendant were conducted in a most circumspect and considerate manner by the New Haven officers. Since there were no coercive police tactics employed, any federal constitutional claim of the defendant is foreclosed by Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). That case required “ ‘police overreaching’ as the ‘crucial element’ in any inquiry into ‘constitutional “voluntariness.” ’ ” State v. Gonzalez, supra, 222. Further, in this case it is not necessary to decide whether article first, § 8 of the Connecticut constitution bestows some greater protection upon the defendant than that derived from our federal constitution as construed in Connelly. “Because ‘[w]e find no persuasive evidence of involuntariness on the present record’; State v. Barrett, supra, 452; we do not decide whether statements characterized as involuntary by reason of their being motivated by factors other than police coercion, are inadmissible under our state constitution.” (Emphasis in original.) State v. Gonzalez, supra.

Further, the record fails to disclose that the defendant suffered from so disabling an educational, intellectual or psychological deficit that his will was overborne simply because he was in the presence of police. State v. Barrett, supra, 453. “The question of voluntariness is one of fact for determination by the trial court in the exercise of its discretion, subject to the constitutional standards of due process.” Id., 452; State v. Der-rico, supra, 162-63. The trial court did not abuse that discretion.

II

The defendant next claims that he was deprived of a fair trial because of misconduct by the prosecutor. He argues that because the state’s attorney, in his closing argument, “implicitly drew a comparison” between the defendant and “Son of Sam” and Charles Manson,* he was deprived of his due process right to a fair trial. He claims, therefore, that the trial court erred in denying his motion for a new trial.

In his closing argument to the jury the prosecutor stated, “You look at people, I’m certainly not putting this defendant in the class of a Son of Sam or a Charles Manson, but you have to look at those things that are on TV all the time and [say] there [are] some pretty weird people, they were guilty of murder, they had the ability, form the intent and kill somebody, Son of Sam did, Charles Manson, a lot of them.”

The state’s argument, however, was in direct response to the defendant’s prior argument that, having no motive to kill DuPaul, he was either extremely emotionally disturbed or had no intent to cause death and consequently was guilty only of manslaughter. The state’s argument was obviously calculated to underscore for the jury the state’s contention that some murders are irrational and are committed by persons with no ostensible motive. The prosecutor specifically eschewed any attempt to equate the defendant with the likes of “Son of Sam” or Charles Manson. In the context in which it was made, therefore, we cannot conclude that the state’s argument was improper let alone a violation of the defendant’s right to a fair trial.

Even if the argument were improper, on appeal the burden is on the defendant to prove that he was denied a fair trial as a result. State v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). Reviewing courts do not focus on the culpability of the prosecutor but rather on the fairness of the trial in view of the entire record. State v. Williams, 204 Conn. 523, 538, 529 A.2d 653 (1987). Improper comments by the state’s attorney will not constitute error unless they are so prejudicial that they taint the entire proceeding. State v. Glenn, 194 Conn. 483, 492, 481 A.2d 741 (1984). The challenged remarks in this instance constituted only a brief, isolated portion of the state’s final argument. The comments were not calculated to lead the jury to believe it was sitting in judgment on a serial killer or a mass murderer, but to make a legitimate point in response to an opposing argument. Even if ill-advised, it is difficult to see how the remarks could have been interpreted otherwise or have so prejudiced the jury as to require a mistrial. The trial court did not abuse its discretion in denying the defendant’s motion for a new trial. State v. Fullwood, 194 Conn. 573, 584, 484 A.2d 435 (1984).

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (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; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       There is nothing in the record, however, to indicate whether the defendant wished his aunt to continue to accompany him.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant’s mother also stated that she talked to the defendant by telephone once a month when he would call her at her place of employment in Florida.

       No question has been raised on this appeal concerning the sufficiency of the probable cause to issue the search warrants.

       The trial court did not make specific findings but denied the defendant’s motion to suppress without opinion. In view of the evidence and the focus of the arguments of counsel on this issue in the trial court and on appeal, however, it is implicit that the trial court found the defendant was not in custody, at least until after he had made his initial unrecorded confession to Sweeney. State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984); see also State v. McCarthy, 197 Conn. 247, 258, 496 A.2d 513 (1985).

       The defendant attempts to make much of the fact that neither he nor his aunt had an automobile at police headquarters and that he was at the mercy of the police for transportation. There is nothing in the record, however, to indicate that Cartocetti would not have heeded the defendant’s request to depart at any time and drive him and his aunt home. “When the individual has not been arrested, a finding of ‘custody’ requires some indication that the officer would not have heeded his or her request to depart.” Patterson v. Cuyler, 729 F.2d 925, 929 (3d Cir. 1984).

       The defendant told Cartocetti that he had completed the tenth grade.

       Again, the trial court did not; make specific findings. It would, however, have had to find valid waivers before allowing the defendant’s confession into evidence. See State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984).

       The defendant did not, in Ms brief, specify whether he believed Ms statements were involuntary under the federal or state constitution or both. He, therefore, did not advance any arguments espousing different standards for state and federal claims of involuntariness.

       “Son of Sam” and Charles Manson are two of the more notorious murderers of recent times.

       The defendant, when asked by Sweeney for his reason for killing the victim, replied, “For something to do.”

       The trial court also refused to give a curative instruction, stating, “I don’t think that there was anything strong enough certainly in this case to warrant a mistrial or even comment to the jury aside from my instructions.” The trial court has the best vantage point for assessing harmfulness and determining whether an explicit curative instruction is appropriate. We will not disturb that decision unless it was a clear abuse of the trial court’s discretion. See State v. Glenn, 194 Conn. 483, 493, 481 A.2d 741 (1984).


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    State of Connecticut v. Edwin Sierra State of Connecticut v. David Collic
    (13413)
    (13414)
    Healey, Shea, Callahan, Glass and Hull, Js.

      Argued October 12, 1989
    decision released January 9, 1990

      William M. Bloss, special public defender, for the appellant in the first case (defendant Edwin Sierra).

      PaulF. Thomas, for the appellant in the second case (defendant David Collie).

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

These appeals raise two principal issues: (1) the admissibility at trial of evidence concerning a prior robbery allegedly committed by the defendants; and (2) the constitutionality of allowing, in a joint trial, one defendant to call a codefendant as a witness. After a joint jury trial, the defendants, David Collie and Edwin Sierra, were found guilty of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123 (a) (l), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (3). The trial court thereupon sentenced the defendants Collie and Sierra to total effective sentences of twenty years incarceration and twelve years incarceration, respectively. From these judgments the defendants appeal. We find error and remand each case for a new trial on all counts.

From the conflicting evidence presented at trial, the jury could reasonably have found the following. At approximately 9:15 p.m., on February 2, 1987, Fair-field police officers responded to a call for assistance at the Pequot Motor Inn in Fairfield where they discovered a naked woman handcuffed to the pipes of a bathroom sink. The woman, G, was employed by Andre’s Massage Service as a professional masseuse. She had gone to room 28 at the Pequot Motor Inn to give a massage to a man registered under the name of Milton Ramboe, who had called her employer to arrange the appointment.

G had arrived at the motor inn at 7:58 p.m., had knocked on the door of room 28, but then had attempted to leave when “Ramboe” failed to produce a Connecticut driver’s license or to allow G to view his face prior to her entering the room. As she had turned to leave, however, she was grabbed by the hood of her coat and was pulled into the room by “Ramboe,” whom she later identified as the defendant Collie. After she was dragged into the room and thrown onto the bed, a second person, whom she later identified as the defendant Sierra, emerged from the bathroom, displayed a knife and threatened to cut her throat if she screamed. Sierra was wearing a belt with two sheaths, one empty and one containing a knife. Also on the belt were two sets of handcuffs. While a knife was held to her, G was blindfolded, gagged, undressed, punched in the stomach, and handcuffed to the bathroom sink. The defendants then left the room, taking with them her wallet, clothes and jewelry. After the police arrived in response to reports of G’s screams for help, G discovered that her automobile was also missing. It was later recovered in the Bronx, New York.

On February 4, 1987, Darien police arrested the defendants on burglary charges unrelated to the Pequot Motor Inn incident. The defendants were searched and the officers seized two large knives, G’s driver’s license and a Milton Ramboe identification card from Collie, and handcuff keys from Sierra. The defendants were thereafter charged in connection with the Pequot Motor Inn incident.

On appeal, the defendants claim that the trial court erred in admitting into evidence testimony concerning a robbery allegedly committed by them two days prior to the incident for which they were on trial. Sierra farther claims that the trial court erred in allowing Collie to call him as a witness in violation of his fifth amendment right not to testify at his own trial. Collie makes the additional claims that the trial court erred: (1) in admitting evidence of his flight when he was apprehended in an investigation concerning a Darien burglary, a crime unrelated to that for which he was being tried; and (2) in overruling objections to the state’s closing argument. We find error in the trial court’s admission of the prior crime evidence and in Sierra’s having been compelled to testify at his own trial. We shall not consider the additional claims raised by Collie because the problems presented are unlikely to arise upon the retrial that we order.

I

During the trial, over defense objections, the state presented evidence that the defendants had committed an armed robbery of a Greenwich taxi driver two days prior to the incident for which they were being tried. On appeal, the defendants claim that the trial court erred in admitting the evidence of this alleged prior crime. We agree.

For the purpose of discussing this issue, we must first explain the context in which it arose. The state presented no evidence of the Greenwich robbery in its casein-chief. Rather, the prior crime evidence was introduced during cross-examination of Collie and during the state’s rebuttal case. The evidence was presented in response to the testimony of Collie, who took the witness stand in his own defensé. Collie admitted that on February 2, 1987, he had registered at the Pequot Motor Inn under the name of Milton Ramboe. He also admitted that he had taken G’s clothes and purse. Collie denied, however, that he had committed any other criminal acts that night, and also denied that Sierra had been present in room 28 of the Pequot Motor Inn on February 2, 1987.

In contrast to G’s version, Collie testified that February 2 was his birthday and that he had consequently called Andre’s Massage Service to arrange for sexual services. According to Collie, when G arrived for the scheduled appointment, she voluntarily entered the motel room and discussed prices for various sexual activities. Upon their reaching an agreement, G undressed herself and placed, on one hand, handcuffs' that she had brought with her. She then allowed Collie to handcuff her to the bathroom sink as a prelude to anticipated sexual activity. Collie testified that after he handcuffed her to the sink, he decided not to complete the transaction and left, taking with him G’s clothes and purse.

On direct examination, Collie admitted that he and Sierra were arrested in Darien on February 4, 1987, on other charges, and further testified that he and Sierra were together in New York City on February 3, 1987, at which time Sierra had taken from him the handcuff keys that were seized from Sierra during his arrest in Darien. On cross-examination, Collie reiterated that Sierra had not been with him at the Pequot Motor Inn. Over objection, the state was then allowed to ask whether the defendants had taken a taxi ride together on January 31,1987. Collie responded in the negative, but admitted that he had known Sierra on . January 31, 1987. Also over objection, the state was allowed to ask Collie whether he and Sierra had taken the taxi at knife point and had then driven the taxi into the Bronx. The trial court admitted these questions as probative of the identity of the persons, specifically Sierra, who allegedly had been present at the Pequot Motor Inn on February 2, 1987.

On the next trial day, Collie filed, and Sierra joined, a written motion to preclude the state from introducing in its rebuttal case evidence regarding the alleged January 31 robbery in Greenwich. The trial court explained that Collie’s denial of Sierra’s presence at the motor inn on the night of the crimes involving G “projected this entire issue,” and that the state had a “right to produce evidence to show that the converse [of Collie’s testimony was] true.” Thus, after the state had made an offer of proof as to the details of the Greenwich robbery, the court denied the defendants’ motion and admitted detailed testimony about the Greenwich incident on the issues of Sierra’s identity and Collie’s credibility.

The rules governing the admissibility of evidence of a criminal defendant’s prior misconduct are well established. “ ‘ “As a general rule, evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged against him. State v. Harris, 147 Conn. 589, 599, 164 A.2d 399 [1960].” State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961); McCormick, Evidence (2d Ed. 1972) § 190; 1 Wharton, Criminal Evidence (13th Ed.) § 170. The rationale of this rule is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged. See State v. Williams, 190 Conn. 104, 108, 459 A.2d 510 (1983); State v. Howard, 187 Conn. 681, 684, 447 A.2d 1167 (1982); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); State v. Barlow, 177 Conn. 391, 393, 418 A.2d 46 (1979); 1 Wigmore, Evidence (3d Ed.) §§ 215-18. Evidence of other misconduct, however, “may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity”; State v. Ibraimov, supra; or an element of the crime. State v. Fatty, 187 Conn. 6, 23, 444 A.2d 213 (1982).’ State v. Braman, 191 Conn. 670, 675-76, 469 A.2d 760 (1983); State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107 (1980).” State v. O’Neill, 200 Conn. 268, 273, 511 A.2d 321 (1986). Such evidence may also be admissible when a defendant testifies and his credibility is in issue. State v. Brown, 169 Conn. 692, 701, 364 A.2d 186 (1975).

To be admitted under one of these exceptions, the evidence must satisfy a two-pronged test: “ ‘First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions.’ State v. Braman, [supra, 676]. Second, the probative value of the evidence must outweigh its prejudicial effect. Id.” State v. Mandrell, 199 Conn. 146, 151, 506 A.2d 100 (1986). With these general principles in mind, we turn to the specific grounds upon which the evidence of the defendants’ alleged prior misconduct was admitted.

A

IDENTITY

The trial court ruled that evidence concerning the Greenwich robbery and the details thereof was admissible in that it tended to establish the identity of the persons, specifically Sierra, who had allegedly been present in room 28 of the Pequot Motor Inn on February 2, 1987. An analysis of this ruling requires an inquiry into first, whether the evidence was in fact relevant to the issue of identity, and second, if so, whether its probative value outweighed its prejudicial tendency.

“The first threshold for the use of evidence of other crimes or misconduct on the issue of identity is that the methods used be ‘sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other.’ [State v. Ibraimov, supra, 354].” State v. Crosby, 196 Conn. 185, 190, 491 A.2d 1092 (1985). “ ‘Much more is required than the fact that the offenses fall into the same class. “The device used must be so unusual and distinctive as to be like a signature.” ’ State v. Ibraimov, supra, 354.” State v. Mandrell, supra, 151-52. In order to determine if this threshold criterion for admissibility was met, we must examine the proffered evidence and compare it to the charged offenses.

Prior to both the cross-examination of Collie and the presentation of the state’s rebuttal, the state made offers of proof with respect to the details it planned to introduce into evidence concerning the Greenwich robbery. The information related to the trial court was as follows. On the evening of January 31, 1987, Fernando Arenes was operating a taxi in Greenwich. He picked up a single person, later identified as Sierra, near the train station in Greenwich. At Sierra’s direction, he proceeded a short distance and then picked up another person, later identified as Collie. Sometime thereafter, Sierra, from the back seat, put something sharp or hard into Arenes’ neck, and Collie, seated in the passenger seat, pulled out a knife and threatened Arenes. The defendants then forced Arenes to drive his taxi to the Merritt Parkway. Once on the parkway, the defendants, having taken from Arenes his money, watch, and boots, forced Arenes out of the car. Three days later the cab was found in the Bronx.

The trial court indicated that both the Greenwich and the Fairfield incidents involved “an ingredient of robbery,” but did not articulate further the similarities between the two incidents upon which it had relied in determining the admissibility of the evidence. The state argues that the similarities between the Greenwich and Fairfield incidents that were described during the state’s offers of proof were sufficiently distinctive to warrant the inference that the individuals who committed the first offense also committed the second. We are not persuaded that the events and circumstances common to the two incidents were, as our law requires, “ ‘so unusual and distinctive as to be like a signature.’ ” State v. Ibraimov, supra, 354, quoting C. McCormick, Evidence § 157.

There is nothing distinctive about the use of a knife to commit an armed robbery, particularly where, as here, the knives used in the two incidents were admittedly not the same. Compare State v. Braman, supra, 679 (the use in two robberies of a “single-barrel pump-action shotgun unique for its cut-down configuration” found to be a particularly distinctive feature). There is also nothing particularly distinctive about the use of threats during the commission of an armed robbery. The definition of robbery in the first degree contemplates that the use of threats is common to the crime: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . uses or threatens the use of a dangerous instrument.” (Emphasis added.) General Statutes § 53a-134 (a) (3). Nor is there any marked significance in the items taken from the two victims: money, jewelry, clothing, and automobiles. In both instances, the perpetrators of the crimes were less than selective in the items they stole; to the contrary, they took almost every item possessed by the victims. Compare State v. Crosby, supra, 191 (the fact that exclusively watches were taken from a jewelry store robbery and jewelry store burglary found to be a unique similarity). Although there might have been some distinctiveness in the fact that both automobiles used to flee the crime scenes were found in the Bronx if the cars had been found in close proximity to one another, the record does not indicate that this was the case.

Finally, even if the similar features of the two incidents are considered in combination with one another, the pattern that emerges does not rise to the level of uniqueness or distinctiveness required by law. The number of times two men take items of value from individuals, using a knife and threats to accomplish their task, flee in a car so taken, and then abandon the car in a city near the scene of the crime “is just too great according to general experience to narrow the circle of possible suspects significantly.” State v. Ibraimov, supra, 354 (although two teenage sexual assault victims had been induced to enter vehicles of the same description by promises of money, liquor, or marihuana before the assaults, these common features could not fairly be categorized as sufficiently distinctive to support a reasonable belief that the same person committed both). These facts and circumstances do not meet the threshold criterion for admissibility; therefore, the admission of the prior crime evidence on the issue of Sierra’s identity was error.

B

CREDIBILITY

We next consider whether the trial court properly admitted the prior crime evidence on the issue of Collie’s credibility. At trial, the state argued that it had a right to impeach Collie’s credibility by showing that he had not been truthful when asked whether he and Sierra had been together in a taxi cab in Greenwich two days prior to the Pequot Motor Inn incident. The state contended that it had “a right to show that [the defendants] were together almost constantly . . . two days before.” The defendants do not argue on appeal that the state was prohibited from asking Collie whether he had been in a taxi with Sierra on January 31,1987, nor do they argue that the state was prohibited from presenting a limited rebuttal to support that contention. Rather, the defendants contend that the trial court erred in allowing evidence of the Greenwich robbery and the details thereof on the issue of Collie’s credibility. We agree.

As stated earlier, evidence of prior misconduct may be admissible “ ‘when the defendant has testified and the State seeks to impeach his credibility.’ ” State v. Brown, supra, 701, quoting Spencer v. Texas, 385 U.S. 554, 560, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967). During Collie’s testimony, he denied that Sierra was present at the Pequot Motor Inn on February 2,1987, and also denied the version of events testified to by G. “ ‘When a witness voluntarily testifies, as did [Collie] here, he asks the jury to believe him. The jury should be informed about the sort of person asking them to take his word.’ State v. Staples, 120 N.H. 278, 283, 415 A.2d 320 (1980), quoted in State v. Glenn, 194 Conn. 483, 498-99, 481 A.2d 741 (1984).” State v. Williamson, 206 Conn. 685, 699, 539 A.2d 561 (1988). The state argues that the identification of the defendants by the taxi driver, offered to prove that Collie had been untruthful about his association with Sierra on January 31, 1987, reflected on the credibility of Collie’s testimony concerning his association with Sierra on February 2, 1987. “Any evidence materially bolstering his identification of the defendant would necessarily be of importance. Robinson v. United States, 459 F.2d 847, 857 (D.C. Cir. [1972]); see State v. Towles, 155 Conn. 516, 523, 235 A.2d 639 [1967].” State v. Brown, supra, 701-702. Thus, the state argues that the taxi driver’s testimony concerning the details of the robbery was material in showing the basis for his being able to recognize the defendants.

It does not follow, however, that if the acts inquired about are relevant, the court must permit the testimony. “Even though the evidence may be relevant and material to the issue of the defendant’s credibility, the court is still required to conduct a balancing test to determine whether the probative value of the evidence outweighed its prejudicial tendency. State v. Braman, [supra, 681]. . . . ‘Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.’ State v. Howard, [supra, 685]; State v. Braman, supra, 676. Our review is limited to whether the trial court’s rulings exceeded the latitude accorded its discretion in such matters. See State v. Braman, supra. Every reasonable presumption should be given in favor of the trial court’s ruling. State v. Howard, supra.” State v. Williamson, supra, 698-99.

This standard of review having been set forth, it is important to note that the trial court’s discretion in this context is limited. The trial court’s “discretion” to admit other crimes evidence “imports something more than leeway in decision-making. See State v. Battle, 170 Conn. 469, 365 A.2d 1100 [1976]; State v. Gilligan, 92 Conn. 526, 103 A. 649 [1918]; McCormick, Evidence (2d Ed.) § 190. ‘ “Discretion means ‘a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . ’ ” ’ State v. Battle, supra, 476; see Hammerherg v. Leinert, 132 Conn. 596, 604-605, 46 A.2d 420 [1946]. When assessing the admissibility of ‘other crimes’ evidence, the application of a mechanical test determining that the proffered evidence fits within some class of exception to the rule of nonadmissibility, may obscure sight of the underlying policy of protecting the accused against unfair prejudice. That policy ought not to evaporate through the interstices of the classification. The problem is thus one of balancing the actual relevancy of the ‘other crimes’ evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence. State v. Holliday, [159 Conn. 169, 173, 268 A.2d 368 (1970)]; 6 Wigmore, Evidence (3d Ed.) § 1904.” State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979).

It is apparent from a review of the transcript that the trial court abused its discretion by not performing the necessary balancing test. The record reveals that the court recognized that the evidence was prejudicial, but made no effort to consider the nature of the prejudice or to weigh the prejudice against the probative value of the other crime evidence. The court ended its inquiry upon determining that the evidence was relevant to one of the exceptions to the general rule of nonadmissibility. As Onofrio makes clear, the balancing process is critical to the determination of whether other crime evidence is admissible. Therefore, notwithstanding our deferential standard of review, the failure of the trial court to balance the probative value of the proffered evidence against its prejudicial tendency constitutes an abuse of discretion. Accordingly, the admission of the prior misconduct evidence on the issue of Collie’s credibility was error.

C

HARMLESS ERROR ANALYSIS

Although we find that the trial court erred in admitting the prior crime evidence on the issues of identity and credibility, the question remains whether the error was harmful. The error in this case does not involve, and the defendants do not claim, a constitutional violation. “ ‘When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The defendant must show that it is more probable than not that the erroneous action of the court affected the result. Id.; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).’ State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988).” State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988). We conclude that the defendants have met their burden.

With respect to Collie, there was no dispute over whether he was present in room 28 of the Pequot Motor Inn when G was handcuffed and her purse and clothes were taken. The dispute was whether those events arose from a kidnapping and robbery or whether they arose from an unconsummated but voluntary transaction. Also disputed was whether Collie had taken G’s car. With respect to Sierra, there was a dispute as to whether he was even present at the Pequot Motor Inn on the night in question. Resolution of these issues should have turned largely on assessments of the credibility of G and Collie who presented conflicting versions of the events that transpired on February 2,1987. The potential prejudicial effect of the evidence that Collie and Sierra earlier had robbed another individual at knife point and had taken his car is apparent. It is more probable than not that it influenced the jury to believe that the defendants were violent persons predisposed to commit, in conjunction with one another, the alleged offenses for which they were on trial. “ ‘ “Any improper evidence that may have a tendency to excite the passions, awaken the sympathy, or influence the judgment, of the jury, cannot be considered as harmless.” ’ ” State v. Onofrio, supra, 32, quoting State v. Loughlin, 149 Conn. 21, 26, 175 A.2d 367 (1961). Each defendant is therefore entitled to a new trial.

Having found reversible error on the defendants’ joint claim, and having ordered new trials, we need not look to other claims of error. It is possible, however, that in the event of a new trial, the trial court will be faced with an issue raised in Sierra’s other claim on appeal, and we are unwilling to risk the recurrence of the error to which Sierra calls our attention.

II

Sierra claims that the trial court erred in allowing Collie to call him as a witness, because a criminal defendant has an absolute constitutional and statutory right to refuse to take the stand at his own trial. We agree.

After the presentation of the state’s rebuttal case in which the details of the Greenwich robbery were presented, Collie served Sierra with a subpoena ad tes-tificandum. Collie explained that he wished to elicit from Sierra testimony that Collie had not been with Sierra in Greenwich on January 31, 1987. Sierra objected to the subpoena, claiming that it violated his fifth amendment right not to take the stand at his own trial. The trial court responded that Sierra had no fifth amendment right with respect to the Greenwich case, because Sierra had pled guilty and had already been sentenced on charges arising out of that case. Sierra then moved for a severance, which the court denied.

Sierra, after having been threatened with contempt if he refused to testify, took the witness stand and stated that Collie had not been with him in Greenwich on January 31,1987. The state, on cross-examination of Sierra and over objection, impeached him with the conviction arising out of the Greenwich case, eliciting evidence that Sierra had pled guilty to a felony in the Stamford judicial district for which he had received a three year sentence.

The fifth amendment to the United States constitution provides, in relevant part, that no person “shall be compelled in any criminal case to be a witness against himself.” It is well established that through this language a criminal defendant is afforded “the right not only to avoid giving incriminating responses to inquiries put to him but also to be free from the inquiries themselves. Thus the privilege of an accused allows him not only to refuse to respond to questions directed at his alleged participation in the offense but also entitles him not even to be called as a witness at his own trial.” C. McCormick, Evidence (4th Ed. 1984) § 130. “For a codefendant in a criminal case, the privilege of course applies — i.e., one defendant cannot call a codefendant unless the latter waives his privilege.” 8 J. Wigmore, Evidence (McNaughton Rev. 1961) § 2268, p.410; see United States v. Barber, 442 F.2d 517, 529 (3d Cir.), cert. denied, 404 U.S. 958, 92 S. Ct. 327, 30 L. Ed. 2d 275 (1971); United States v. Echeles, 352 F.2d 892 (7th Cir. 1965); De Luna v. United States, 308 F.2d 140, 149 n.25 (5th Cir. 1962); United States v. Housing Foundation of America, 176 F.2d 665, 666 (3d Cir. 1949).

In Connecticut this right has been statutorily protected by General Statutes § 54-84 (a) which provides in pertinent part: “Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial.”

Sierra had an absolute constitutional and statutory right not to be called as a witness at his own trial. Collie thus could not call him as a witness absent a waiver by Sierra of his rights. There is nothing in the record to suggest that Sierra validly waived his constitutional right not to be called as a witness. A waiver of a constitutional right is an “intelligent relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); see State v. Wilson, 199 Conn. 417, 443, 513 A.2d 620 (1986). “ ‘[Cjourts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and ... we ‘do not presume acquiescence in the loss of fundamental rights.’ ” Johnson v. Zerbst, supra. Sierra twice informed the court of his refusal to testify. He ultimately took the stand only after the court erroneously stated that Sierra had no legal right to refuse to testify and threatened Sierra with contempt if he did refuse. This hardly rises to an “intelligent relinquishment or abandonment of a known right or privilege.” Id. Likewise, there is no support in the record for the proposition that Sierra voluntarily exercised his “option” to testify pursuant to General Statutes § 54-84 (a).

It is our view that compelling a criminal defendant to take the stand and to testify in a criminal prosecution against him is so fundamental an error that automatic reversal is required and may not be disregarded. While the United States Supreme Court has rejected the argument that all federal constitutional errors, regardless of their nature or the circumstances of the case, require reversal of a judgment of conviction; Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 82 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); it has also recognized that some constitutional errors “are so fundamental and pervasive that they require reversal without regard to the facts or circumstances of the particular case.” Delaware v. Van Arsdall, 475 U.S. 673, 681,106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). Although the Van Arsdall court did not include the violation of a defendant’s absolute right not to testify at this own trial as an example of such a constitutional error, we believe that it falls within this speciál category.

We look as authority for our view on this issue to two decisions of the Second Circuit Court of Appeals. In Johnstone v. Kelly, 808 F.2d 214 (2d Cir. 1986), cert. denied, 482 U.S. 928, 107 S. Ct. 3212, 96 L. Ed. 2d 699 (1987), the court considered a sixth amendment violation in light of Delaware v. Van Arsdall, supra, and held harmless error analysis inappropriate, stating that “[hjarmless error analysis has not been applied to rights that are essential to the fundamental fairness of a trial or that promote systematic integrity and individual dignity.” Johnstone v. Kelly, supra, 218. Subsequently, in Biller v. Lopes, 834 F.2d 41, 46 (2d Cir. 1987), the court held that the use of compelled testimony for impeachment purposes in violation of the fifth amendment satisfies this test. Likewise, we find that to compel a criminal defendant to testify at his own trial in violation of his fifth amendment right not to take the stand derogates from the integrity of the constitution and the judicial system and affects an individual’s dignity in such a way that cannot be tolerated. Automatic reversal is required.

There is error, the judgments are set aside and each case is remanded for a new trial in accordance with this opinion.

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

Callahan, J., concurred in the result.

       General Statutes § 53a-134 provides in relevant part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime . . . (3) uses or threatens the use of a dangerous instrument.”

       “[General Statutes] Sec. 53a-119. larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”
      “[General Statutes] Sec. 53a-123. larceny in the second degree: class C felony, (a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which exceeds five thousand dollars

       “[General Statutes] Sec. 53a-92. kidnapping in the first degree. (a) A person is guilty of kidnapping in the first degree when he abducts another person and when ... (2) he restrains the person abducted with intent to . . . (B) accomplish or advance the commission of a felony ))

       General Statutes § 53a-48 provides in relevant part: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       At the time of this trial, Collie had been charged with and Sierra had pled guilty to the Greenwich robbery.

       The trial court stated that the jury could consider the evidence that the defendants were together on January 31,1987, as circumstantial evidence that they were together at the Pequot Motor Inn on February 2,1987. The trial court, however, admitted not only testimony that the defendants were together on January 31,1987, but also testimony that the defendants had committed an armed robbery on that evening. The court specifically stated several times that the jury could consider that evidence on the issues of identity and credibility, two recognized exceptions to the general rule prohibiting the admission of prior crime evidence, discussed supra. It is to these issues that the defendants limit their attack on appeal and that we likewise limit our discussion.

       The offer of proof made prior to the introduction of the rebuttal case was more detailed than that made prior to the cross-examination of Collie. Our discussion is limited to the more detailed offer of proof, because we find even it to have been insufficient to establish the relevancy of the prior crime evidence on the issue of identity.

       The testimony of Fernando Arenes mirrored this offer of proof.

       We do not deny that each of the incidents involved distinctive features; however, those features were not common to both robberies.

       Fernando Arenes’ identification of the defendants as the men who had been in his taxi on January 31, 1987, is not encompassed by our references to “prior crime evidence.” Two weeks after the Greenwich incident, Arenes was arrested for driving while intoxicated and was consequently placed in the Stamford lockup. He noticed that in the next cell was a man, later identified as Sierra, wearing the boots that had been taken from him during the Greenwich robbery. He then recognized Sierra and another man in the lockup, later identified as Collie, as the men who had robbed him at knife point on January 31,1987. He later identified the defendants from two photographic arrays. Arenes’ identification of the defendants as the men who had been in his taxi on January 31, 1987, absent the details concerning Arenes’ boots and absent any other details concerning the robbery, is not included in our use of the phrase “prior crime evidence.”

       To one of Collie’s many objections to the prior crime evidence, on the ground that it was prejudicial, the court responded: “Oh, that it is. Certainly.” Without further comment by the court, the court overruled the objection.

       The court cited specifically to footnote 8 in Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967), as exemplary of the constitutional errors that require automatic reversal. Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). Footnote 8 of Chapman refers to the right to counsel, Gideon v. Wainright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); coerced confessions, Payne v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975 (1958); and the right to an impartial judge, Turney v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927).

       “The right of a person not to be compelled in a criminal case to be a witness against himself is a fundamental right under the 5th Amendment, affecting ‘the very essence of constitutional liberty and security.’ ” United States v. Housing Foundation of America, 176 F.2d 665, 666 n.l (3d Cir. 1949), quoting Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 29 L. Ed. 746 (1886).


author: Per Curiam.

text:
    Circuits, Inc. v. Orest T. Dubno, Commissioner of Revenue Services
    (13708)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued December 6, 1989
    decision released January 16, 1990

      Dennis L. Kern, for the appellant (plaintiff).

      Robert L. Klein, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (defendant).
   Per Curiam.

The Connecticut corporation business tax, General Statutes § 12-217 (a), allows taxpayers a deduction for “all items deductible under the federal corporation net income tax law effective and in force on the last day of the income year.” The issue in this case is whether the plaintiff, Circuits, Inc. (taxpayer), is entitled to this state tax deduction for wages as to which, in lieu of a federal tax deduction, it has elected to take a federal new jobs tax credit under § 44B of the Internal Revenue Code. 26 U.S.C. § 44B. The defendant, Orest T. Dubno, commissioner of revenue services (commissioner), upon review of the plaintiffs Connecticut corporation business tax returns for the years 1977 and 1978, disallowed the taxpayer’s deduction of such wages. In accordance with General Statutes § 12-237, the taxpayer appealed to the trial court. After a hearing, the trial court found in favor of the commissioner and dismissed the taxpayer’s appeal. We transferred the taxpayer’s further appeal to this court, pursuant to Practice Book § 4023. We find no error.

The facts are stipulated. The taxpayer paid wages to a number of employees during the relevant tax periods. The commissioner disallowed a state tax deduction only with respect to the wages for which the plaintiff had claimed a federal new jobs tax credit. Neither the scope of the federal tax credit, nor its amount, was contested. Finally, there is no claim of any improper or excessive allocation of wages paid to the class of those eligible for the federal tax credit; all of the disallowed wages were wages for which the taxpayer in fact took a federal tax credit.

The sole issue stipulated for the trial court was “[wjhether the plaintiff, Circuits, Inc., is entitled to a deduction from gross income for wages paid to employees for the tax periods ending December 31,1977 and December 31, 1978 under Section 12-217 of the Connecticut General Statutes when it has elected to take these wages as a credit under Section 44-B of the United States Internal Revenue Code.” The trial court, relying on Skaarup Shipping Corporation v. Commissioner, 199 Conn. 346, 507 A.2d 988 (1986), ruled that ho deduction was available.

On appeal, the taxpayer raises the same issue as was stipulated at trial in slightly different words. We agree with the trial court that our decision in Skaarup is dis-positive. Skaarup concerned a taxpayer who had elected to take a federal tax credit for its foreign taxes, and hence was precluded by federal tax law from simultaneously taking a federal tax deduction. We concluded that such a taxpayer was also precluded from claiming a state tax deduction under § 12-217 (a). Id., 351-53.

The federal tax law treats, in essentially parallel fashion, the payment of foreign taxes eligible for a federal tax credit, which we discussed in Skaarup, and the payment of wages eligible for a new jobs tax credit, which are involved in this case. In both situations, under federal law, an election to take a federal tax credit precludes a taxpayer from claiming a federal tax deduction for the same item. Of specific relevance for present purposes is § 280C of the Internal Revenue Code; 26 U.S.C. § 280C; which provides that “[n]o deduction shall be allowed for that portion of the wages or salaries paid . . . for the taxable year which is equal to the amount of the credit allowable under [Section 44B].” Accordingly, once a taxpayer has elected to avail itself of the applicable federal tax credit, neither the foreign taxes in Skaarup nor the wages at issue in this case continue to be “items deductible under the federal corporation net income tax” for purposes of § 12-217 (a). 6The commissioner’s tax assessment was therefore correct.

There is no error.

       General Statutes § 12-217 (a) provides in relevant part: “deductions from GROSS income, (a) In arriving at net income as defined in section 12-213, whether or not the taxpayer is taxable under the federal corporation net income tax, there shall be deducted from gross income, (A) all items deductible under the federal corporation net income tax law effective and in force on the last day of the income year . . . . ”

       Title 26 of the United States Code (1982), § 44B provides in relevant part: “CREDIT FOR EMPLOYMENT OF CERTAIN NEW EMPLOYEES
      “(a) GENERAL RULE
      “At the election of the taxpayer, there shall be allowed as a credit against the tax imposed by this chapter the amount determined under subpart D of this part.”

       General Statutes § 12-237 provides in relevant part: “Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under the provisions of this part may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the commissioner of revenue services to appear before said court.”

       Title 26 of the United States Code, § 280C privides in relevant part: “certain expenses for which credits are allowable
      “(a) rule for section targeted jobs credit
      “No deduction shall be allowed for that portion of the wages or salaries paid or incurred for the taxable year which is equal to the amount of the credit determined for the taxable year under section 51 (a). In the case of a corporation which is a member of a controlled group of corporations (within the meaning of section 52 (a)) or a trade or business which is treated as being under common control with other trades or businesses (within the meaning of section 52 (b)), this subsection shall be applied under rules prescribed by the Secretary similar to the rules applicable under subsections (a) and (b) of section 52.”

       As in Skaarup Shipping Corporation v. Commissioner, 199 Conn. 346, 353-54, 507 A.2d 988 (1986), we are unpersuaded that the reasoning of other courts interpreting different statutes significantly illuminates the issue before us. Notably, the two courts that have addressed the question have arrived at opposite results. Compare Winterset, Inc. v. Commissioner, 144 Vt. 230, 232, 475 A.2d 231 (1984), with Sutin, Thayer & Browne v. Revenue Division, 725 P.2d 833, 835-36 (N.M. App. 1984).