text:
    STATE OF CONNECTICUT v. ANONYMOUS
    (15568)
    Borden, Norcott, Katz, Palmer and McDonald, Js.

      Argued January 17
    officially released May 6, 1997

      Jack W. Fischer, assistant state’s attorney, with whom were Russell Zentner, assistant state’s attorney, and, on the brief, John T. Redway, state’s attorney, for the appellant (state).

      Edward J. Peters, Jr., with whom was Terrence J. Milardo, for the appellee (defendant).
   Opinion,

NORCOTT, J.

The principal issue in this appeal is whether the defendant invoked his right to counsel under the fifth amendment to the federal constitution when he asked the police during custodial interrogation: “Do I still have the right to an attorney?” The defendant was charged with arson in the first degree in violation of General Statutes § 53a-lll (a) (4), burglary in the third degree in violation of General Statutes § 53a-103, criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (l), criminal trespass in the third degree in violation of General Statutes § 53a-109, and conspiracy to commit all of the foregoing crimes in violation of General Statutes § 53a-48. The state appeals, with permission of the trial court, Miaño, J., from the judgment of the trial court, Miaño, J., dismissing the information following the granting by the trial court, Walsh, J., of the defendant’s motion to suppress certain incriminating statements that he made to the state police during the evening of August 25 and the early morning of August 26, 1994. We conclude that the defendant did not invoke his right to the assistance of counsel before making the statements in question and, accordingly, we reverse the judgment of the trial court.

The record discloses the following facts. Between June 4, 1992, and August 18, 1994, a series of acts of vandalism occurred in and around the towns of Haddam and Killingworth, including: (1) the breaking of a public phone receiver and aplate glass window at the Haddam-Killingworth High School by the use of an aluminum baseball bat; (2) the destruction of a wooden street sign by arson; (3) the destruction of a motor vehicle by a “molotov cocktail”; and (4) the total or partial destruction of several school buses on the premises of the Haddam-Killingworth High School by arson. At 3:41 p.m. on August 25, 1994, State Police Detectives Reinaldo Ortiz and James Thomas and Sergeant Scott Martin arrived at the defendant’s home with a warrant for his arrest and a search and seizure warrant for his residence. At the time, the defendant was an eighteen year- old high school graduate who planned to enter college in the fall. The defendant greeted the police at the door and identified himself as the person for whom they were looking.

The police handcuffed the defendant and took him into custody. At the same time, the police informed the defendant of his Miranda rights. When the police asked the defendant whether he understood his rights, he responded in the affirmative. The defendant seemed coherent and did not appear to be under the influence of drugs or alcohol. After having received the Miranda warnings, however, the defendant claimed that he was feeling dizzy and sick. The police removed the handcuffs, allowed the defendant to sit on the front steps of his house, and asked him if he needed medical attention. The defendant declined medical treatment and collected himself after a few minutes. At 3:53 p.m., the police replaced the handcuffs on the defendant and seated him in a police cruiser, where Thomas again apprised him of his Miranda rights. After receiving his rights for the second time, the defendant stated clearly that he understood the warnings.

At approximately 4:20 p.m., the defendant arrived at the police station. He was taken to a detective’s room on the second floor where he was read his Miranda rights for the third time. At this time, the defendant read from a form listing the Miranda rights and signed a notice of rights and waiver section at the bottom of the form after the police had removed his handcuffs.

In response to questioning by Ortiz and Thomas, the defendant described his involvement, along with that of several friends, in a series of acts of vandalism that they referred to as “breaking.” Specifically, the defendant admitted his involvement in stealing and destroying street signs, smashing mailboxes, breaking aplate glass window at the Haddam-Killingworth High School, locking the gates to the high school bus yard, destroying a public pay phone receiver, and burning a motor vehicle. During the initial stages of this interrogation, the defendant denied any involvement in the burning of the school buses at the Haddam-Killingworth High School. He claimed that he had been at his girlfriend’s house at the time of the incident, but had read about it in a local newspaper.

At 6:40 p.m., the detectives interrupted the interview for a break and took the defendant to a first floor room for processing. Thereafter, the police placed the defendant in a cell, and, when he said that he was hungry, Thomas brought the defendant food and drink. At approximately 8:25 p.m., after the defendant had eaten, he was returned to the interview room and advised of his Miranda rights for the fourth time. The defendant again acknowledged that he understood these rights and signed another waiver form. When the defendant stated that he was cold, Thomas gave him one of his shirts to wear. The interrogation continued and the defendant denied any involvement in the bus fires despite being confronted with incriminating handwritten notes the police had seized from his house pursuant to the search warrant.

Between 8:25 p.m. and 10:15 p.m., the defendant’s father arrived at the police station. Ortiz informed the defendant of his father’s arrival, but the defendant indicated that he did not want to speak to his father because the defendant was ashamed of what he had done. The defendant’s father told Ortiz that he did not think that the defendant had waived his right to an attorney, and that he wanted to speak to the defendant in order to get an attorney for the defendant if he wanted one. Ortiz told the defendant’s father that the defendant had waived his right to an attorney, and that the defendant would call him at home when they were finished.

At approximately 10:15 p.m., after Ortiz had left the interview room to speak to the defendant’s father, Martin, who had just returned from executing the search warrant at the defendant’s residence, entered the room. Martin showed the defendant some of the evidence that had been seized from his residence, including a pair of boots that had been sniffed by a trained police detection dog who had made a positive response. Martin told the defendant that the boots would be sent to the forensic lab for testing. The defendant asked a few questions about the testing and then dropped his head and stated: “Okay, okay, enough.”

With respect to the events that occurred after 10:15 p.m., the trial court made the following findings of fact: “(1) Up until approximately 10:15 p.m., the defendant was fully aware of his rights, and knowingly and willingly waived those rights. (2) At approximately 10:15 p.m., the defendant inquired as to whether or not he still had the right to an attorney. (3) The investigating officers responded to this statement by holding up the waiver of rights form that the defendant had previously signed, and shoving the telephone on the table towards the defendant without further aid or assistance or questions. (4) No phone book was offered by the officers; no offer was made to get a phone book; no inquiry was made as to whether or not the defendant knew an attorney; no assurance that the state would provide the defendant with an attorney if he so desired, and that all questioning would cease until [an] attorney arrived, was made; no offer to leave the room while the defendant used the phone was made; and no offer to inquire of the defendant’s father — who the detectives knew was in the waiting room of the barracks — as to who to call was made. ... (5) None of the above was done, when in fact the officers were fully aware of the fact that the defendant did not know any attorneys. . . . (6) The defendant pushed the phone that had been shoved at him away from him. (7) The investigating officers immediately began interrogating the defendant about the bus fire incident again. ... (8) Some two hours later, the defendant eventually confessed to his involvement in [the bus fires]. (9) At no time prior thereto had the defendant admitted he was involved in the bus fire incident. Rather, up until this time, the defendant had vehemently denied any involvement in, or knowledge of the bus burning incident, other than what he had read in the newspapers. (10) The detectives never told the defendant that his father, who had been in the waiting room for almost two hours, wanted to speak to him about getting him an attorney. The detectives never told the defendant that his father was present at the barracks.”

The defendant subsequently moved before trial to suppress the incriminating statements made after 10:15 p.m., claiming that the police improperly had continued their interrogation of him in violation of the federal constitution after he had requested the assistance of an attorney. The trial court, Walsh, J., granted the defendant’s motion to suppress the incriminating statements.

In its memorandum of decision, the trial court first explained that it had reviewed the defendant’s suppression motion exclusively under the federal constitution because “the defendant had failed to set forth any claim, accompanied by an independent analysis, under the Connecticut Constitution.” (Emphasis in original.) The court then stated that its decision to suppress the defendant’s confession rested on the answers to two questions: “Whether the defendant’s statement, ‘Do I still have [the] right to an attorney?’, constitutes an invocation of his right to counsel under the facts of the present case? ... If so, whether the defendant’s subsequent pushing of the telephone away constituted a knowing, intelligent, and voluntary waiver of his Miranda rights under the facts of the present case?” Next, the trial court reviewed the principles governing an accused’s right to counsel, which the United States Supreme Court first set forth in Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and developed in subsequent case law. Specifically, the trial court referred to Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994), for the appropriate standard to determine whether the defendant invoked his right to counsel. In applying the Davis standard to the present case, the trial court concluded: “It is undisputed that the defendant’s words and actions prompted the interviewing officers to present a telephone to the defendant; accordingly, the court finds it reasonable to conclude that [the] officers believed, in their own minds, that the defendant was making a request for an attorney [and, therefore, that] the defendant’s inquiry, under the circumstances as they existed at the time the statement was made, constituted an unambiguous and unequivocal attempt to invoke a present right to counsel.” (Emphasis in original.) After determining that the defendant had invoked the right to counsel, the trial court concluded that the state had not met its burden of proving by a preponderance of the evidence that the defendant had knowingly, voluntarily and intelligently waived his right to counsel.

The state filed motions both to dismiss with prejudice the charges against the defendant pursuant to State v. Ross, 189 Conn. 42, 51, 454 A.2d 266 (1983), and for permission to appeal pursuant to General Statutes § 54-96 from the trial court’s judgment of dismissal based on the suppression of the confession of the defendant. The trial court, Miano, J., heard the motions in the Middlesex judicial district where the hearing on the defendant’s motion to suppress had taken place. Judge Walsh, who originally had presided over the defendant’s case, had been reassigned to the New London judicial district. At the hearing, the defendant objected to having Judge Miaño rule on the state’s motions, and argued that only the judge who had granted the original motion to suppress had the authority to grant or deny the state’s motions. Despite the defendant’s objection, Judge Miaño heard and granted the state’s motion for permission to appeal from the ruling suppressing the defendant’s confession. The state thereafter appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

On appeal, the state challenges the trial court’s conclusions that the defendant invoked his right to counsel, and that the defendant did not knowingly, intelligently, and voluntarily waive that right. The defendant contends that this court lacks subject matter jurisdiction over this appeal. We conclude that this court has subject matter jurisdiction over the state’s appeal, and we agree with the state that, because the defendant never invoked his right to counsel, the trial court improperly suppressed the defendant’s confession.

I

Before reviewing the merits of the state’s claims, we briefly address the defendant’s challenge to our jurisdiction over this appeal. The defendant argues that the state’s appeal is not properly before this court because Judge Miaño: (1) did not rule on the defendant’s suppression motion and, therefore, lacked authority to grant the state permission to appeal; and (2) abused his discretion when he granted the state permission to appeal. We disagree.

We note at the onset that the defendant may raise a claim that this court lacks subject matter jurisdiction at any time. “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . The objection of want of [subject matter] jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings. . . . If at any point, it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed.” (Citations omitted; internal quotation marks omitted.) Lewis v. Gaming Policy Board, 224 Conn. 693, 698-99, 620 A.2d 780 (1993).

Section 54-96 authorizes the state to appeal questions of law in a criminal case if a “presiding judge” of a court grants the state permission to appeal. A review of our case law reveals that this court never has considered this statute to preclude a trial judge from granting the state permission to appeal from a dispositive evidentiary ruling made by another judge in a criminal case. See State v. Bergin, 214 Conn. 657, 661-63, 574 A.2d 164 (1990) (this court has granted state permission to appeal where trial court has abused its discretion); State v. Ross, supra, 189 Conn. 49-51 (fact that state’s motion for permission to appeal was granted by different judge did not present jurisdictional bar to this court’s consideration of appeal). The defendant neither cites any authority, nor advances any public policy reason to support such a narrow interpretation of the phrase “presiding judge” in § 54-96. Indeed, such a limiting construction of this statute would hinder unreasonably the administration of criminal cases particularly given crowded criminal dockets and sparse judicial resources. Moreover, when the legislature has intended the same judge to hear different proceedings, it unambiguously has expressed that intent. See General Statutes § 52-470 (b) (habeas corpus appellant must first petition judge before whom case was tried); General Statutes § 53a-39 (reduction of sentence must be by “sentencing court or judge”).

The defendant also argues that Judge Miaño improperly granted the state permission to appeal the ruling granting the defendant’s motion to suppress his confession. In this regard, the defendant contends that Judge Miano’s decision was not “related to the specific issues of this case but rather was more akin to a philosophical statement that every party should have the opportunity to have issues of law reviewed by an appellate body.” We disagree. “The scope of review by this court on a claim that the trial court abused its discretion is well settled. ‘[EJvery reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.’ ” Higgins v. Karp, 239 Conn. 802, 808, 687 A.2d 539 (1997). The record reveals that Judge Miaño demonstrated considerable prudence in deciding whether he should rule on the state’s motion, and then in preparing himself for that task. Because the record does not support a finding that Judge Miaño ignored the substantive record in granting the state permission to appeal, the defendant’s claim that Judge Miaño abused his discretion in allowing the state to appeal must fail.

II

The state argues that the trial court improperly ruled that the defendant invoked his right to counsel when he asked the police during custodial interrogation: “Do I still have the right to an attorney?” We agree.

It has been more than thirty years since the United States Supreme Court decided in Miranda v. Arizona, supra, 384 U.S. 469, that the right of an accused to have an attorney present during custodial interrogation by the police was an essential component of the fifth amendment privilege against self-incrimination. In Miranda, the court held that when an accused person “indicates in any manner at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning,” and the police must stop the interrogation. Id., 444-45. The court has since narrowed this aspect of the Miranda decision by emphasizing that the right to the presence of counsel during custodial interrogation is a prophylactic rule, rather than a per se constitutional requirement; Connecticut v. Barrett, 479 U.S. 523, 528, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987); and by holding that an accused’s request for counsel under Miranda must be objectively unequivocal. Davis v. United States, supra, 512 U.S. 459. It has clarified the range of protection available to a defendant who has been deemed to have properly requested the presence of counsel. See Smith v. Illinois, 469 U.S. 91, 94-95, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984); Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).

The present case requires us to determine whether the defendant properly requested counsel before he confessed his involvement in setting fire to the fleet of school buses at Haddam-Killingworth High School. We begin by noting our agreement with the trial court that the United States Supreme Court’s ruling in Davis v. United States, supra, 512 U.S. 452, governs our resolution of this issue. In Davis, a member of the United States Navy initially waived his right to remain silent and his right to counsel while he was being interviewed by Naval Investigative Service agents in connection with the murder of a sailor. After one and one-half hours of questioning, the defendant said: “ ‘Maybe I should talk to a lawyer.’ ” Id., 455. When the naval agents inquired whether he was asking for a lawyer, the defendant responded in the negative. Id. The interrogation continued, and the defendant made incriminating statements to the agents. The questioning finally ceased when the defendant asked that a lawyer be present. Id.

The United States Supreme Court determined that the defendant’s first mention of a lawyer during the interrogation was not a request for counsel. Id., 461. In so doing, the court held that a suspect must articulate the desire for counsel “sufficiently clearly that a reasonable police officer . . . would understand the statement to be a request for an attorney.” Id., 459. The court emphasized that “[t]o avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. . . . [I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 458-59. The court in Davis thus ruled that an accused’s request for counsel be objectively clear and unambiguous. The court further held that, while it was preferable for police to clarify an equivocal assertion, the federal constitution did not require police to engage in mandatory clarification of a suspect’s assertion following an ambiguous invocation of counsel. Id., 461-62.

Against this background, we review the state’s claim that the defendant did not invoke his right to counsel before he made incriminating statements to the police. Noting at the onset that the question is one of law, which we review de novo; Connecticut v. Barrett, supra, 479 U.S. 529; we agree with the state and conclude that the trial court improperly concluded that the defendant had invoked his right to counsel clearly and unambiguously.

Our review of the trial court’s memorandum of decision reveals that the court improperly considered the standard set forth in Davis to be a subjective, rather than an objective, test. The court supported its conclusion that the defendant had made an unequivocal request for an attorney with the finding that “the [police] officers believed, in their own minds, that the defendant was making a request for an attorney.” The court in Davis established that the subjective perceptions of the interviewing police officer are irrelevant. See Davis v. United States, supra, 512 U.S. 458-59. The relevant inquiry is solely whether a reasonable police officer objectively would have accepted the defendant’s statement as an unambiguous and unequivocal invocation of his right to counsel. Thus, the trial court improperly supported its conclusion that the defendant had requested an attorney by emphasizing that the interviewing officers subjectively believed that the defendant was asking for counsel.

Even if we were to assume that the trial court had applied the Davis standard properly, we would remain unpersuaded that the defendant’s statement, spoken after four unchallenged Miranda warnings, constituted an unequivocal invocation of counsel. We have had occasion to consider substantially similar situations, and, in each case, we have declined to conclude that the defendant had invoked the right to counsel. See State v. Lapointe, 237 Conn. 694, 716 n.27, 678 A.2d 942, cert. denied, U.S. , 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996) (defendant’s request to use telephone did not sufficiently invoke right to counsel); State v. Anderson, 209 Conn. 622, 628-30, 553 A.2d 589 (1989) (defendant’s remark that he “ ‘better call his wife and lawyer’ ” was not unequivocal request for attorney). The trial court has made no additional finding in its memorandum of decision that distinguishes the present case from our previous rulings.

The defendant further contends that Davis requires us to consider, in resolving whether his ambiguous statement is to be deemed a clear invocation of the right to counsel, the special circumstances of the present case. In this regard, he contends that the trial court’s specific findings — namely, that the police: (1) did not provide a telephone book for the defendant; (2) were aware that the defendant did not know an attorney; (3) did not assist the defendant’s father in calling an attorney for his son; (4) shoved a telephone at the defendant after his inquiry regarding a lawyer; and (5) never told the defendant that his father was present at the police barracks and wanted to speak to him about getting an attorney for him — constitute special circumstances that clearly and objectively indicate that the defendant had invoked his right to an attorney. We disagree.

We fail to discern how, under the objective standard mandated by Davis, any of these findings of the trial court buttress the defendant’s claim that his request for an attorney was clear and unambiguous. First, the defendant concedes that the relevance of the trial court’s findings regarding his father dissipate in the light of State v. Whittaker, 215 Conn. 739, 749, 578 A.2d 788 (1990) (police under no duty to inform young defendant that parent was attempting to contact him). Moreover, despite his teenage years, the defendant legally was an adult at the time he made the statements to the police. Consequently, the defendant, not his parents, possessed the ability to invoke the presence to counsel. Further, the trial court’s reference to the failure of the police to provide the defendant with a telephone book or the names of attorneys is of no moment in this analysis. Because the defendant never invoked his right to counsel, the police were under no obligation to comport themselves in any other way than that found by the trial court.

The defendant has suggested no principle of federal constitutional law, and we know of none, that requires the police to offer an accused assistance in obtaining counsel when he has not invoked the right to counsel in the first place. “Of course, when a suspect makes an ambiguous or equivocal statement, it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. . . . Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect’s statement regarding counsel. But we decline to adopt a rule requiring officers to ask clarifying questions.” Davis v. United States, supra, 512 U.S. 461.

In essence, the defendant asks us to add a new layer to the jurisprudence governing the request for counsel under the federal constitution that would go beyond the United States Supreme Court’s holding in Davis to proscribe the actions of the police. This we cannot do. “[A] State may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.” (Emphasis in original.) Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975).

“The fundamental purpose of the Court’s decision in Miranda was to assure that the individual’s right to choose between speech and silence remains unfettered throughout the interrogation process. ... To this end, the Miranda Court adopted prophylactic rules designed to insulate the exercise of Fifth Amendment rights from the government compulsion, subtle or otherwise, that operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Connecticut v. Barrett, supra, 479 U.S. 528. In the present case, the trial court made no findings of fact'indicating that the police cajoled or badgered the defendant. The uncontroverted record reveals that the police made certain that the defendant understood the implications of exercising his right to remain silent. Given the choice between speech and silence, the defendant spoke willingly at length, as his uninterrupted narratives evince. As a result, he is now prohibited from retracting the statements he made to the police in connection with his involvement in the crimes charged.

The judgment of the trial court is reversed and the case is remanded for further proceedings.

In this opinion the other justices concurred.

       General Statutes § 53a-lll provides in relevant part: “(a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in § 53a-100, he starts afire or causes an explosion, and ... (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury. . . .”
      General Statutes § 53a-100 (a) provides in relevant part: “(1) ‘Building’ in addition to its ordinary meaning, includes any watercraft, aircraft, trailer, sleeping car, railroad car or other structure or vehicle or any building with a valid certificate of occupancy. . . .”

       General Statutes § 53a-103 provides in relevant part: “(a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein. . . .”

       General Statutes § 53a-115 provides in relevant part: “(a) A person is guilty of criminal mischief in the first degree when: (1) With intent to cause damage to tangible property of another and having no reasonable ground to believe that he has a right to do so, he damages tangible property of another in an amount exceeding one thousand five hundred dollars . . . .”

       General Statutes § 53a-109 provides in relevant part: “(a) A person is guilty of criminal trespass in the third degree when, knowing that he is not licensed or privileged to do so: (1) He enters or remains in premises which are posted in a manner prescribed by law or reasonably likely to come to the attention of intruders, or fenced or otherwise enclosed in a manner designed to exclude intruders, or which belong to the state and are appurtenant to any state institution . . . .”

       General Statutes § 53a-48 provides: “(a) 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 a conspiracy. . . .”

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct 1602, 16 L. Ed. 2d 694 (1966).

       The defendant claimed that the draft notes were for a writing assignment that he was required to complete before entering college. The notes referred to the time of the arson despite the fact that no published report in the newspapers had indicated the time at which the fires had occurred.

       For the same reason, the trial court declined to address the defendant’s claims that: (1) the federal and state constitution required the defendant’s confession to be electronically or stenographically recorded; and (2) the defendant’s confession was not made voluntarily but, rather, was the product of police coercion in violation of his due process rights. On appeal, the defendant does not raise either of these claims as alternate grounds for affirming the judgment of the trial court.

       In Davis v. United States, supra, 512 U.S. 459, the court held that a suspect “must articulate his desire to have counsel present sufficiently clearly [such] that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.”

       General Statutes § 54-96 provides: “Appeals by the state from Superior Court in criminal cases. Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”

       Because the defendant has not provided this court with any independent analysis of this issue under our state constitution, we limit our analysis to the federal constitution. State v. Kyles, 221 Conn. 643, 657 n.9, 607 A.2d 355 (1992). We, therefore, have no occasion to determine whether the defendant’s rights under article first, § 8, of the state constitution were violated.

       Citing State v. Lapointe, 237 Conn. 694, 725, 678 A.2d 942, cert. denied, U.S. , 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996), the state also urges that we set aside the trial court’s findings of fact as being clearly erroneous on the ground that the court failed to find that, after the defendant asked about his right to counsel, the police had assured him that he had a right to counsel at any time. We agree with the state that the defendant himself admitted to being told by the police in response to his query that he retained the right to counsel at any time. Because we reverse the trial court’s judgment on other grounds, however, we choose not to set aside the court’s finding.

       Because we conclude that the defendant did not invoke his right to counsel by asking whether he still had a right to an attorney, we do not reach the issue of whether the defendant subsequently waived his right to counsel.

       For example, Judge Miaño: (1) ordered the state to file a revised motion for permission to appeal listing the main legal issues it intended to raise on appeal; (2) called Judge Walsh and received assurances from Judge Walsh that he had no reservation about Judge Miaño hearing the matter; (3) reviewed the totality of the documentation presented to him; and (4) held a full hearing on October 17, 1995, during which he considered various claims by the defendant against the state’s motion. On the basis of these inquiries, Judge Miaño concluded that “[t]he state . . . should have the opportunity to have this matter reviewed by an appellate panel.”

       While acknowledging the conflicting approaches adopted by different jurisdictions, the United States Supreme Court had declined to decide the procedure to be followed when an accused has made an ambiguous or equivocal request for counsel until Davis v. United States, supra, 512 U.S. 459. For example, in Smith v. Illinois, supra, 469 U.S. 93, the defendant, after being asked whether he understood the implications of his right to counsel, responded: “ ‘Uh, yeah. I’d like to do that.’ ” When the police asked again whether the defendant wanted to talk further without a lawyer present, the defendant responded: “ ‘Yeah and no, uh, I don’t know what’s what, really.’ ” Id., 94. The defendant then made incriminating statements to the police that were used against him at his trial. In reversing the defendant’s conviction, the court held that a defendant’s “post-request [for counsel] responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.” Id., 100. Because the court did not question that the defendant’s request for counsel was explicit, the court stated that it declined to address the issue of what constitutes a request for counsel. Id., 96 n.3.
      In State v. Barrett, 197 Conn. 50, 495 A.2d 1044 (1985), this court considered whether a defendant who had indicated that he was willing to speak to the police, but would not make a written statement outside the presence of counsel, had made a valid request for counsel. In holding that the defendant had invoked the right to counsel when he had refused to make written statements without the presence of his attorney, this court stated: “The fact that the defendant attached his request for counsel to the making of a written statement does not affect the outcome of. . . our inquiry. No particular form of words has ever been required to trigger an individual’s fifth amendment protections . . . nor have requests for counsel been narrowly construed. . . . The defendant’s refusal to give a written statement without his attorney present was a clear request for the assistance of counsel to protect his rights in his dealings with the police.” (Citations omitted.) Id., 57.
      The United States Supreme Court reversed the judgment of this court in Barrett and concluded that, because the defendant’s request for counsel was accompanied by affirmative indications of his willingness to speak to the police, his request constituted a limited invocation of counsel rather than a request “for all purposes.” Connecticut v. Barrett, supra, 479 U.S. 528. Again, the court declined to set forth the standard for what constitutes a request for counsel and reasoned that the defendant’s statement clearly was a conditional invocation of counsel rather than an ambiguous or equivocal response to the reading of the Miranda warnings. Id., 529 n.3

       Prior to the United States Supreme Court’s decision in Davis, we had held that, once a suspect makes an equivocal request for an attorney during custodial interrogation, any further interrogation must be limited to clarifying that request until it is clarified. See State v. Anderson, 209 Conn. 622, 627-28, 533 A.2d 589 (1989); State v. Acquin, 187 Conn. 647, 673-75, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983). In Davis v. United States, supra, 512 U.S. 461, however, the court, held that an accused’s request for counsel must be objectively clear and unambiguous and, accordingly, declined to “adopt a rule requiring officers to ask clarifying questions.” The court’s ruling in Davis consequently overruled our previous decisions to the extent that they required police officers to limit questioning during custodial interrogation to clarifying an equivocal request for counsel.


source: Caselaw Access Project

author: CALLAHAN, C. J. BORDEN, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. DAVID MORALES
    (15405)
    Callahan, C. J., and Borden, Norcott, McDonald and Peters, Js.
    Argued February 19
    officially released May 6, 1997

      Patricia A. King, for the appellant (defendant).

      Timothy J. Sugrue, executive assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, assistant state’s attorney, for the appellee (staté).
   Opinion

CALLAHAN, C. J.

The sole issue in this appeal is whether a child who has been transferred, pursuant to General Statutes (Rev. to 1995) § 46b-127, from the docket for juvenile matters to the regular criminal docket of the Superior Court on a charge of murder must be returned to the docket for juvenile matters if he is acquitted of murder but convicted of the lesser included- offense of manslaughter in the first degree. The defendant, David Morales, contends that allowing a child acquitted of murder but convicted of manslaughter to remain on the regular criminal docket for sentencing is contrary to both the language of § 46b-127 and the equal protection and due process provisions of the federal constitution. We disagree with the defendant’s statutory and constitutional arguments and affirm the judgment of the Appellate Court, which affirmed the trial court’s sentencing of the defendant for manslaughter as an adult.

The following facts and procedural history are relevant to this appeal. When the defendant was fifteen years old, he was the driver of a vehicle involved in a gang related drive-by shooting in New Haven that resulted in the death of a sixteen year old male. As a result of the defendant’s involvement in the shooting, he was arrested by warrant and, in a petition of delinquency, charged with murder in violation of General Statutes §§ 53a-8 and 53a-54a. On June 12, 1991, the state filed a motion to transfer the defendant to the regular criminal docket pursuant to § 46b-127. After an evidentiary hearing, the trial court transferred the defendant on the basis of its finding of probable cause to believe that the defendant had committed murder.

Following the transfer of the defendant to the regular criminal docket, another probable cause hearing was held pursuant to General Statutes § 54-46a. That court also found probable cause to believe that the defendant had committed murder in violation of §§ 53a-8 and 53a-54a. The state then filed an amended two count information charging the defendant with murder and with conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a.

In August, 1994, the defendant was tried by a jury. At the defendant’s request, the trial court instructed the jury as to the lesser included offenses of manslaughter in the first and second degrees. The jury convicted the defendant of manslaughter in the first degree in violation of General Statutes §§ 53a-8 and 53a-55 (a) (l), and acquitted him of the charges of murder and conspiracy to commit murder.

Thereafter, the defendant moved to have his case returned to the juvenile docket for further proceedings. The trial court denied the motion and sentenced the defendant to a term of incarceration of eighteen years, suspended after fourteen years, with five years probation. The defendant appealed to the Appellate Court, which affirmed the judgment of the trial court in a per curiam opinion based upon its decision in State v. Cuffee, 32 Conn. App. 759, 630 A.2d 621 (1993). State v. Morales, 40 Conn. App. 935, 671 A.2d 867 (1996). We granted the defendant’s petition for certification to determine: (1) whether, as a matter of statutory construction, a child who is transferred to the regular criminal docket pursuant to § 46b-127, on the basis of a finding of probable cause to believe that he has committed murder, must be transferred back to the juvenile docket if he is found guilty of the lesser included offense of manslaughter in the first degree; and (2) whether the statute, if construed not to require such a retransfer, violates the child’s constitutional rights to equal protection and due process. State v. Morales, 237 Conn. 907, 674 A.2d 1333 (1996). We affirm the judgment of the Appellate Court.

I

Section 46b-127 provides that the juvenile court must transfer to the regular criminal docket of the Superior Court all cases in which there has been a finding of probable cause that a child has committed murder in violation of §§ 53a-54a through 53a-54d and the alleged crime occurred after the child had attained fourteen years of age. Section 46b-127 (d) also provides that “[u]pon the effectuation of the transfer, [the] child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age .... Any child transferred to the regular criminal docket who pleads guilty to a lesser offense shall not resume his status as a juvenile regarding said offense. If the action is dismissed or nolled or if such child is found not guilty of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen years.” We are asked to determine how the legislature intended this language to be applied where, as here, a child is properly transferred to the regular criminal docket on the basis of a finding of probable cause to believe that he has committed murder, but is later acquitted of murder by a jury and convicted of the lesser included offense of manslaughter. As noted above, in 1993, the Appellate Court concluded that a child transferred to the regular criminal docket on a murder charge could be sentenced as an adult if that child was convicted of a lesser included offense. State v. Cuffee, supra, 32 Conn. App. 764-65. Since Cuffee, the legislature has made significant changes to the juvenile transfer statutes but has not enacted legislation to overrule that decision. See Public Acts 1995, No. 95-225, § 13; Public Acts, Spec. Sess., July, 1994, No. 94-2, § 6. While we are aware that legislative inaction is not necessarily legislative affirmation; see Conway v. Wilton, 238 Conn. 653, 662, 680 A.2d 242 (1996); we also “presume that the legislature is aware of [the Appellate Court’s] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.” Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987). The defendant has failed to articulate a convincing rationale to alter the Appellate Court’s 1993 interpretation of § 46b-127, and we see no reason to do so.

We first consider the language of § 46b-127 (d), which provides that, “[u]pon the effectuation of the transfer, [the] child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age . . . .” That language, which has not changed since the time of the decision in Cuffee, dictates that children who are validly transferred from the juvenile docket to the regular criminal docket are to be prosecuted in all respects, including sentencing, as though they were adults. It is undisputed that an adult tried for murder may be convicted of any lesser included form of homicide. State v. Rodriguez, 180 Conn. 382, 398-408, 429 A.2d 919 (1980). General Statutes § 53a-45 (c) provides that “[t]he court or jury before which any person . . . held to answer for murder after a hearing conducted in accordance with the provisions of section 54-46a is tried may find such person guilty of homicide in a lesser degree than that charged.” (Emphasis added.) The defendant in this case certainly falls within the category of “any person . . . held to answer for murder” and § 53a-45 (c) therefore would apply to the charges against him unless the legislature has carved out a specific exception to § 53a-45 (c).

The defendant asks us to find such an exception in the last sentence of § 46b-127 (d), which provides that “[i]f the action is dismissed or nolled or if such child is found not guilty of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen years.” The defendant argues that murder is the only “charge for which he was transferred” and that, when the jury found him not guilty of that charge, the court was obligated to send his case back to the juvenile docket. We are not persuaded.

The defendant’s interpretation of § 46b-127 would, within the context of cases transferred from the juvenile docket to the regular criminal docket, require a departure from our well established rules pertaining to lesser included offenses. Under the defendant’s interpretation, in a transferred case a jury would never deliberate regarding a lesser included offense because the jury is routinely instructed, as the jury was in this case, that it may not begin to deliberate regarding any lesser included offense until it has concluded that the defendant is not guilty of the greater offense. See State v. Sawyer, 227 Conn. 566, 587, 630 A.2d 1064 (1993). Before it ever reached the lesser included offense, the jury would have had to conclude that the defendant was not guilty of the greater offense. Further deliberations regarding lesser included offenses would be meaningless under the defendant’s construction of the statute and, therefore, trial courts presumably would be precluded from giving lesser included offense instructions. Forcing the jury to choose between murder and acquittal in a case where there is evidence of a less culpable state of mind “would limit the jury’s function of determining questions of fact and undermine a defendant’s right to a trial by jury.” State v. Rodriguez, supra, 180 Conn. 404. We are unable to find any indication that the legislature intended that the state and the child defendant engage in this version of Russian roulette.

Our interpretation finds further support in the provision of § 46b-127 (d) that “[a]ny child transferred to the regular criminal docket who pleads guilty to a lesser offense shall not resume his status as a juvenile regarding said offense. . . .” It is clear that had the defendant pleaded guilty to manslaughter in the first degree, his case would have remained on the regular criminal docket and he would have been sentenced as an adult and subject to a maximum penalty of twenty years imprisonment. The defendant contends, however, that because he elected to go to trial and opted to request a lesser included offense instruction on manslaughter, he is subject to a maximum penalty in juvenile court, if it is assumed the court could penalize him at all, of only four years commitment to the department of children and families pursuant to General Statutes (Rev. to 1995) § 46b-141 (a). This argument violates the canon of construction requiring that we construe statutes as a whole in order to reconcile their separate parts; Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996); and, more starkly, the canon that counsels us to avoid constructions of statutes that lead to absurd consequences or bizarre results. State v. Hill, 237 Conn. 81, 102, 675 A.2d 866 (1996). We do not believe that the legislature intended those child defendants who are transferred to the regular docket and subsequently are convicted of manslaughter in the first degree after a full trial to be afforded dramatically more lenient treatment than those juveniles who voluntarily plead guilty to manslaughter in the first degree. The defendant’s proposed construction would provide transferred juvenile defendants with a significant disincentive to plead guilty. Such a construction is at odds with common sense and contradicts the policy encouraging plea bargaining. See Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995) (“plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts”). We conclude that § 46b-127 must be read to authorize the same sentences for those children convicted of lesser included offenses after a full trial as for those who plead guilty to lesser included offenses.

Only by intexpreting the phrase “the charge for which he was transfeixed” in the last sentence of § 46b-127 (d) to include not only the specific statutoxy offense for which the defendant was transferred but also any lesser included offenses, can we find internal haxmony between that last sentence and the preceding sentences providing that a transferred child shall be treated the same as an adult defendant “if convicted” or if he pleads guilty to any lesser included offense. Once probable cause was found by both the juvenile court and the adult court, the defendant was on notice that he could be prosecuted for murder and for applicable lesser included offenses. See State v. Rodriguez, supra, 180 Conn. 398-408. Otherwise, he would not be treated the same as a sixteen year old, as mandated by § 46b-127 (d). When a juvenile, after receiving all legislative safeguards, is transferred to the regular criminal docket and prosecuted for murder, the statute places him in the same position as an adult. This necessarily includes not only the possibility of conviction of appropriate lesser included offenses, but also the defendant’s right to request instructions pertaining to such offenses.

II

Having rejected the defendant’s statutory claim, we consider the defendant’s alternative argument that the statute, as we have construed it, violates his federal constitutional rights to equal protection and due process. Although unclear, the defendant’s equal protection argument appears to be that he is similarly situated to those children who are adjudged delinquent on the basis of findings in juvenile court that they have committed manslaughter in the first degree, and that there is no rational basis for subjecting him to more severe penalties than are imposed on those who are prosecuted in the juvenile court. We disagree.

In order to analyze the constitutionality of § 46b-127, we first must detail the principles applicable to equal protection analysis. “To implicate the equal protection clauses under the state and federal constitutions . . . it is necessary that the state statute in question, either on its face or in practice, treat persons standing in the same relation to it differently.” (Internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 755, 687 A.2d 506 (1997). “The equal protection clause ‘does not require absolute equality or precisely equal advantages . . . .’ Ross v. Moffitt, 417 U.S. 600, 612, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974); Daily v. New Britain Machine Co., [200 Conn. 562, 577-78, 512 A.2d 893 (1986)]. ... To determine whether a particular classification violates the guarantees of equal protection, the court must consider ‘the character of the classification; the individual interests affected by the classification; and the governmental interests asserted in support of the classification.’ Dunn v. Blumstein, 405 U.S. 330, 335, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972).” (Citations omitted.) Franklin v. Berger, 211 Conn. 591, 595, 560 A.2d 444 (1989). Where, as here, “the classification at issue neither impinges upon a fundamental right nor affects a suspect group it ‘will withstand constitutional attack if the distinction is founded on a rational basis.’ Laden v. Warden, [169 Conn. 540, 543, 363 A.2d 1063 (1975)]; see also McGinnis v. Royster, 410 U.S. 263, 270, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1972); Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970).” Franklin v. Berger, supra, 211 Conn. 595. Rational basis review “is satisfied so long as there is a plausible policy reason for the classification . . . .” (Citations omitted; internal quotation marks omitted.) Johnson v. Meehan, 225 Conn. 528, 536, 626 A.2d 244 (1993). “[I]t is irrelevant whether the conceivable basis for the challenged distinction actually motivated the legislature.” D.A. Pincus & Co. v. Meehan, 235 Conn. 865, 877, 670 A.2d 1278 (1996). We conclude that there is a conceivable rational basis for treating differently those juveniles who are convicted by a jury of manslaughter after being transferred to the regular criminal docket to stand trial for murder and those who are adjudged delinquent on the basis of a court’s initial finding that the juvenile has engaged in conduct amounting only to manslaughter.

The defendant’s argument appears to be that distinctions in sentencing of juvenile offenders cannot constitutionally be based upon a determination, in advance of trial, that there is probable cause to believe that a juvenile defendant has committed murder. We conclude, however, that even if we assume that the two categories of offender identified by the defendant, i.e., children charged with murder and those charged only with manslaughter, are similarly situated with respect to the statute, there is more than an adequate rational basis for treating them differently.

Our analysis of this claim is essentially the same as that in which we engage today in State v. Matos, 240 Conn. 743, 694 A.2d 775 (1997). As with the youthful offender scheme at issue in Matos, the legislature has provided a variety of benefits to juvenile defendants. Some of the benefits exist before and during trial, while others exist after the merits of a defendant’s case have been decided by a court. Regardless of the timing of the benefits, however, the legislature has chosen to bestow or withhold these benefits as a whole, rather than on a piecemeal basis. It is entirely possible that the legislature decided that, in the best interests of our open public court system, any defendant tried as an adult and exposed to the public for trial should be sentenced as an adult, regardless of the crimes of which he or she ultimately is convicted. The legislature could have reasoned that conferring postverdict benefits, such as more lenient sentencing and erasure of records, on a defendant who, in open court, had been tried as an adult and convicted of a serious crime would damage society’s perception of the fair administration of justice. See id. Because there exists a rational basis for this legislative scheme, we conclude that the legislature’s decision to preclude a defendant from seeking the post-verdict benefits of the juvenile statutes once validly transferred to the regular criminal docket does not violate the defendant’s right to the equal protection of the laws.

Under the due process analysis in his brief, the defendant asserts that he “is entitled to the full protection of the statutory scheme governing the treatment of juvenile delinquents as set forth in [General Statutes] §§ 46b-126 and 46b-127. Pursuant to that scheme, he would not have been subject to punishment as an adult for the crime of manslaughter in the first degree under § 46b-127 [a] (1). . . .To sentence the defendant as an adult for conviction of a class B felony, manslaughter in the first degree, in violation of this statutory scheme violates his right to due process of law.” Although we confess some confusion about the nature of the defendant’s claim, to the extent that his claim is that his right to due process was violated because the court failed to follow the relevant statutes, we reject it based upon our prior conclusion that the trial court’s rulings were in accordance with those statutes. Moreover, as a matter of procedural due process, we determined in In re Ralph M., 211 Conn. 289, 310, 559 A.2d 179 (1989), that the two statutorily required probable cause hearings as to the murder charge were adequate process for the purpose of subjecting the defendant to the possibility of pxmishment on that charge. We are at a loss as to why that same process would be constitutionally inadequate for the lesser included offense of manslaughter.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

BORDEN, J.,

concurring. I agree with and join the majority opinion. I write separately only with regard to the defendant’s equal protection claim. In my view, it is not necessary to engage in the inquiry of whether the particular classification at issue has a rational basis because the defendant cannot surmount the threshold of equal protection analysis, namely, that he is similarly situated to the person with whom he is to be compared.

It is axiomatic that the equal protection clause applies only where the litigant before the court first establishes that he is similarly situated, with respect to the statutory scheme claimed to violate the clause, to someone else who is treated differently from him under the statutory scheme. Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 755, 687 A.2d 506 (1997). If he is so similarly situated, the court must then determine whether the classification effectuated by the statutory scheme survives the applicable level of scrutiny. Id., 755-57.

As the majority opinion makes clear, the defendant seeks to compare himself with those juveniles who are adjudged delinquent based on a finding in the Superior Court for Juvenile Matters that they have committed manslaughter in the first degree. The defendant, however, is not similarly situated, with respect to the juvenile statutes regarding the penal code homicide offenses, to those juveniles.

The appropriate time for this inquiry is not, as the defendant assumes, at the end of the process, when he was acquitted of murder but convicted of manslaughter. The appropriate time is at the beginning of the process because that is when the classification between him and the other juveniles was made. At that time, the state had evidence establishing probable cause that the defendant had committed not only manslaughter, but murder. A juvenile against whom there is sufficient evidence for a charge of murder is not, in my view, similarly situated to a juvenile against whom there is only sufficient evidence for a charge of manslaughter. The defendant’s equal protection claim founders, therefore, at this threshold stage.

       General Statutes § 46b-120 (1) defines “child” as “any person under sixteen years of age . . . .”

       General Statutes (Rev. to 1995) § 46b-127 provides: “Mandatory transfer of child charged with certain felonies to regular criminal docket, (a) The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years; (2) any child referred for (A) the violation of section 53a-55a, 53a-56a, 53a-60a, 53a-60c, 53a-72b, 53a-92a, 53a-94a, 53a-102a, 53a-103a or subdivision (2) of subsection (a) of section 53a-135, (B) the violation of section 53a-59, 53a-70a, 53a-101 or 53a-134 committed with a firearm or (C) the commission in the course of a single transaction of any felony that is a serious juvenile offense, as defined in section 46b-120, other than murder under sections 53a-54a to 53a-54d, inclusive, and of a violation of subsection (a) of section 29-35, provided such offense was committed after such child attained the age of fourteen years and provided further the prosecuting authority for juvenile matters, after consultation with the state’s attorney, has moved for such transfer; (3) any child referred for the violation of any provision of title 53a which is designated as a class A felony, other than murder or any such provision specified in subdivision (2) of this subsection, if such violation was committed after such child attained the age of fourteen years, provided such child has previously been adjudicated a delinquent at any age for a violation of any provision of title 53a, which at the time of such violation was designated a class A felony; or (4) any child referred for the violation of any provision of title 53a which is designated as a class B felony, other than any such provision specified in subdivision (2) of this subsection, provided such violation was committed after such child attained the age of fourteen years, and further provided such child has previously been adjudicated delinquent for two violations of any provision of title 53a, which at the time of such violations were designated a class A or B felony. The prosecuting authority for juvenile matters, in deciding whether to seek the transfer of a child under subdivision (2) of this subsection, shall consider whether such child is a person with mental retardation, as defined in section 1-lg, or suffers from a substantial mental disorder, as defined in section 17a-75. Not later than ten days after the filing of a motion to transfer a child to the regular criminal docket under subdivision (2) of this subsection, the child may file a notice of intent to request a hearing under subsection (c) of this section.
      ‘‘(b) No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that, the child has committed the act for which he is charged. At such hearing, the child shall have the right to counsel and to confront the witnesses against him. The procedures provided in section 54-46a shall apply at such hearing, except that the child shall have the right to move to suppress any admission made by him on the ground that it was obtained in violation of the provisions of subsection (a) of section 46b-137 and to obtain discovery of exculpatory information.
      “(c) If the court makes a finding of probable cause, any child referred pursuant to subdivision (2) of subsection (a) of this section may request an immediate hearing at which he shall have the right to present evidence that he should not be transferred to the regular criminal docket because (1) he is a person with mental retardation, as defined in section 1-lg, or (2) he suffers from a substantial mental disorder, as defined in section 17a-75 or (3) an alternative plan or placement within the juvenile justice system has been arranged that will protect the community from further criminal conduct by the child. If the court, after such hearing, finds that a factor specified in subdivision (1), (2) or (3) of this subsection has been proven by a preponderance of the evidence, it shall not transfer such child to the regular criminal docket.

        “(d) Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age, except that no such child shall be placed in a correctional facility but shall be maintained in a facility for children and youth until he attains the age of sixteen years or until he is sentenced, whichever occurs first. Such child shall receive credit against any sentence imposed for time served in a juvenile facility prior to the effectuation of the transfer. A child who has been transferred may enter a guilty plea to a lesser offense if the court finds that such plea is made knowingly and voluntarily. Any child transferred to the regular criminal docket who pleads guilty to a lesser offense shall not resume his status as a juvenile regarding said offense. If the action is dismissed or nolled or if such child is found not guilty of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen years.”
      Section 46b-127 was substantially revised in 1995. See Public Acts 1995, No. 95-225, § 13. Unless otherwise indicated, all references to § 46b-127 are to that statute as revised to 1995.

       General Statutes § 53a-8 provides in relevant part: “Criminal liability for acts of another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender. . .
      General Statutes § 53a-54a provides in relevant part: “Murder, (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. . . .
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a . . .

       The defendant previously filed an unsuccessful appeal of the trial court’s finding of probable cause. See In re David M , 29 Conn. App. 499, 615 A.2d 1082 (1992).

       General Statutes § 54-46a (a) provides in relevant part: “No person charged by the state . . . shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause. . .

       General Statutes § 53a-48 (a) provides: “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.”

       General Statutes § 53a-55 provides in relevant part: “Manslaughter in the first degree: Class B felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       That authority is subject only to the condition that, if probable cause for the transferred charge is found not to exist, the adult prosecution ends, and the juvenile is transferred back to the juvenile docket. State v. Torres, 206 Conn. 346, 358, 538 A.2d 185 (1988).

       The defendant suggested at oral argument that, even under his construction of § 46b-127, lesser included offense instructions could still be given and deliberated in cases such as this, in apparent contradiction of his argument that at the point the jury concludes that a defendant is not guilty of the crime that supported the transfer, that defendant must be returned to the juvenile docket. The defendant claims that if a jury found him to be guilty of a lesser included offense, he could at that point be sent back to the juvenile docket “for proceedings consistent with the jury’s finding that the state proved beyond a reasonable doubt that [the defendant] committed manslaughter in the first degree.” Aside from the potential double jeopardy problems arising from such a proceeding, which we need not address; see Breed v. Jones, 421 U.S. 519, 531-41, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975) (violation of double jeopardy to prosecute in Superior Court after delinquency abdication in juvenile court); the defendant’s argument for this sort of criminal collateral estoppel is unsupported by the relevant statutory scheme pertaining to delinquency abdications in juvenile court. There is no suggestion that the state may bypass the traditional methods of adjudicating a child as a juvenile delinquent merely by submitting to the court a jury’s finding that the defendant committed manslaughter in the first degree. See General Statutes §§ 46b-120 through 46b-141. If the legislature had intended to create such a novel procedural mechanism, the legislature would have provided for it. We are unwilling to create such a mechanism by judicial fiat.

       The defendant curiously argues in his brief that the state’s construction of the statute would “impermissibly [burden] the common-law right to consideration of lesser included offenses . . . .”

       General Statutes (Rev. to 1995) § 46b-141 provides in relevant part: “Commitments to be indeterminate. Extension, (a) Except as otherwise limited by subsection (e) of section 46b-140, commitment of children adjudged delinquent by the superior court to the department of children and families shall be for (1) an indeterminate time up to a maximum of eighteen months, or (2) when so adjudged on a serious juvenile offense, up to a maximum of four years at the discretion of the court, unless extended as hereinafter provided. . . .”

       The defendant provides no independent analysis under the state constitution and we, therefore, will undertake no such analysis in this case.

       By joining the majority opinion, I also agree with and join its rational basis analysis. The purpose of this concurrence is simply to underscore my conclusion that it is not necessary to engage in that analysis.