author: Borden, J.

text:
    In re Keijam T.

    (14364)
    Shea, Callahan, Covello, Borden and Berdon, Js.

      Argued November 8, 1991
    decision released February 4, 1992

      KentDrager, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (respondent).

      Cathleen Mulligan Edwards, state’s advocate, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Supreme Court.
      Reporter of Judicial Decisions

   Borden, J.

The principal issues in this appeal concern the proper standards for a trial court to employ in determining (1) probable cause for purposes of transfer from the juvenile docket to the regular criminal docket pursuant to General Statutes (Rev. to 1991) § 46b-127, and (2) whether evidence contained in an accused’s offer of proof under General Statutes § 54-46a would be sufficient to rebut an antecedent finding of probable cause. The juvenile respondent, Keijam T., appeals from the order of the Superior Court for juvenile matters transferring him to the regular criminal docket, based upon a finding of probable cause to believe that he committed murder in violation of General Statutes § 53a-54a, as alleged in a delinquency-petition filed against him. The respondent claims that the court: (1) applied an improper standard to evaluate the state’s evidence produced in the transfer hearing; (2) improperly concluded that, under the facts of this case, there could be two inconsistent findings of probable cause regarding the respondent and another purported assailant; (3) improperly precluded him from introducing evidence to rebut the court’s finding of probable cause, in accordance with his offer of proof; and (4) found probable cause based on insufficient evidence. We reverse, and order a new transfer hearing.

The state filed a delinquency petition in the Superior Court against the respondent, who was then fifteen years of age, claiming that he committed the serious juvenile offense of murder, in violation of General Statutes § 53a-54a, by intentionally causing the death of another person on August 13,1990. Thereafter, the state moved to transfer the respondent to the regular criminal docket pursuant to General Statutes § 46b-127. 6After a hearing, the court granted the motion, and this appeal followed.

The court made the following written findings pursuant to § 46b-127. At approximately 12:30 a.m., on August 13,1990, on Arthur Street in New Haven, the victim, Tythron Blue, was fatally shot by a medium caliber bullet that entered his right side. The trajectory of the bullet was from right to left, and was horizontal. The weapon was not recovered.

The court also found that approximately one week before the shooting, the respondent’s mother had complained about her car being “shot up.” The court further found that about two hours before the shooting, she had accused Blue of having done this, and the respondent had advised his mother not to worry, that Blue would “get his.” In addition, on the evening of the shooting, the respondent had fired a weapon in the Arthur Street neighborhood, and had warned people in the area not to go outside.

The court further found that, on the night in question, Blue and Moses James were walking down Arthur Street together when they heard shots fired. James turned and saw the respondent on the same side of Arthur Street, behind him and Blue. The respondent was carrying an “Uzi type” weapon. James also saw Rodney Lewis on the opposite side of Arthur Street, approximately five or six houses in front of him and Blue. Lewis was carrying a black hand gun. James ran for an alley to his right a few houses up on Arthur Street and, after a moment’s hesitation, Blue also ran into the alley. As Blue did so, he turned his right side toward the respondent, who was still behind the fleeing twosome. In the alley, Blue stopped and told James that he had been shot. James resumed running, and when he returned shortly thereafter to Arthur Street, Blue was bleeding and dying in the middle of the street.

The court further found that James, an eyewitness to the incident, testified that only the respondent, and not Lewis, could have fired the fatal shot into Blue’s right side. The court also stated that, “[i]n any event assuming only two shooters, probable cause need not be exclusive.” Moreover, the court found that, although there had been a history of antagonism between the families of the respondent and James, and James had a felony conviction, James “was a credible witness.”

On the basis of these findings, the court found probable cause to believe that the respondent intended to cause and did cause the death of Blue. Accordingly, the court transferred the respondent to the regular criminal docket.

I

We turn first to the respondent’s fourth claim, namely, that, irrespective of the first three claims, the evidence was insufficient to support the court’s finding of probable cause. We address this claim first because, if meritorious, it would result in a direction to the trial court to deny the state’s transfer motion rather than a new transfer hearing, and, therefore, it would render consideration of the respondent’s first three claims unnecessary. The respondent argues that: (1) the state’s evidence was insufficient to establish probable cause because it was equally probable that Lewis, rather than the respondent, fired the fatal shot; and (2) the evidence was insufficient to establish probable cause regarding the respondent’s mental state. We disagree.

General Statutes § 46b-127 requires, as a precondition to transfer from the docket for juvenile matters to the regular criminal docket, that the court find “that there is probable cause to believe that the child has committed the act for which he is charged,” in this case, intentional murder. The standard for establishing probable cause is well established.

“The quantum of evidence necessary to establish probable cause at a preliminary hearing is less than the quantum necessary to establish proof beyond a reasonable doubt at trial. . . . State v. Green, 237 Kan. 146, 148, 697 P.2d 1305 (1985); Myers v. Commonwealth, 363 Mass. 843, 850, 298 N.E.2d 819 (1973); State v. Dunn, 121 Wis. 2d 389, 396, 359 N.W.2d 151 (1984). In making its finding, the court had to determine whether the government’s evidence would warrant a person of reasonable caution to believe that the accused [had] committed the crime. Arenella, ‘Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction Without Adjudication,’ 78 Mich. L. Rev. 463, 478 (1980); Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). State v. Mitchell, [200 Conn. 323, 336, 512 A.2d 140 (1986)]. The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear that [t]here is often a fine line between mere suspicion and probable cause, and [t]hat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances. Brinegar v. United States, supra, 176. State v. Penland, 174 Conn. 153,155-56, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978). State v. Dennis, 189 Conn. 429, 431-32, 456 A.2d 333 (1983); State v. Acquin, 187 Conn. 647, 657, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983).” (Internal quotation marks omitted.) State v. Patterson, 213 Conn. 708, 720-21, 570 A.2d 174 (1990).

When reviewing a trial court’s finding of probable cause made for purposes of a transfer pursuant to § 46b-127, “it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book [§ 4060]. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the . . . decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” (Internal quotation marks omitted.) In re Ralph M., 211 Conn. 289, 316, 559 A.2d 179 (1989). As in any case involving the challenge to a factual finding, we view the evidence and the permissible inferences therefrom in the light most favorable to sustaining the trial court’s determination of probable cause. Bridgeport Restoration Co. v. A. Petrucci Construction Co., 211 Conn. 230, 232, 557 A.2d 1263 (1989); Cohen v. Cohen, 182 Conn. 193, 202, 438 A.2d 55 (1980).

James testified that the respondent was behind him and Blue, on the same side of the street, and that Lewis was in front of them, on the other side of the street. He testified that, as he and Blue were walking down Arthur Street, they heard a “thump,” that they both turned around but saw nothing, and that they continued walking, with Blue behind James. James also testified that when he heard the shooting, he turned around again and saw the respondent behind them, shooting at them with an “Uzi type” weapon. He also testified that he and Blue then ran into an alley that was located on the same side of the street, and that as they “got in the alley” Blue was holding his side and saying, “Mo, I’m shot, Mo, I’m shot.” Reviewing this evidence in the light most favorable to sustaining the finding of probable cause, we conclude that the court was entitled to infer that Blue turned to the right in order to enter the alley, exposing his right side to the respondent, and that as he did so, the respondent shot him in the right side.

It is true that James also testified that, before he and Blue ran into the alley, he saw Lewis across the street and in front of them, approximately five or six houses away from them. Lewis was shooting at them with a handgun while running backwards. It is also true, moreover, that James did not see Blue turn to the right into the alley, and that there was no ballistic evidence before the couid that would have tied the bullet retrieved from Blue’s body to an “Uzi type” weapon rather than to a handgun.

The respondent argues that, since James testified that both he and Blue turned around in response to a noise behind them, after which they both ran, it is equally inferable that Blue turned around to the left, exposing his right side to Lewis, who shot him as he did so. Therefore, the respondent contends, it is “mere speculation” that Blue was shot by the respondent when he turned to the right to go into the alley. We disagree.

The respondent mischaracterizes the pertinent parts of James’ testimony. James did testify that, when they heard the “thump,” both he and Blue turned around, but that was before the shooting began. He testified that, after turning around and seeing nothing, they continued walking. He also testified that then, when “somebody started shooting . . . /looked back,” and saw the respondent shooting at them. (Emphasis added.) He did not testify that Blue also turned around in response to the noise of shooting. Thus, according to James’ testimony, Blue’s turn, on which the respondent rests his argument, was before and not during the shooting. Moreover, the court’s finding that the respondent shot Blue in the right side was based upon the inference that the respondent did so as Blue turned right into the alley while fleeing, not that Blue was shot when he turned around in response to the noise of shooting.

Furthermore, we have held that, although proof beyond a reasonable doubt must preclude every reasonable hypothesis except that which supports the defendant’s guilt; see State v. Grant, 219 Conn. 596, 602, 594 A.2d 459 (1991); State v. Morrill, 193 Conn. 602, 610, 478 A.2d 994 (1984); State v. Foord, 142 Conn. 285, 294, 113 A.2d 591 (1955); in determining whether the state has met its burden of proving guilt beyond a reasonable doubt the factfinder, in viewing evidence which could yield contrary inferences, is not precluded from drawing reasonable inferences consistent with guilt and is not required to draw those reasonable inferences consistent with innocence. State v. Grant, supra, 604. Certainly, the court has the same leeway in determining whether the state has met the much lower standard of establishing probable cause. Thus, the court was entitled to infer that Blue was shot as he turned to the right, rather than to the left.

The respondent’s argument that the evidence was insufficient to establish his intent to kill is equally flawed. It is axiomatic that a factfinder may infer an intent to kill “from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” (Internal quotation marks omitted.) In re Edwin N., 215 Conn. 277, 284, 575 A.2d 1016 (1990). Here, there was evidence of the respondent’s animus toward Blue and his threat that Blue would “get his.” There was also evidence that the respondent fired several shots at Blue with a deadly weapon from a short distance away. This evidence was sufficient to support a finding of probable cause that the respondent shot at Blue with the intent to kill him.

II

We turn next to the respondent’s first and third claims, which, as we view them, are closely related to each other. These claims are that the court applied an improper standard of evaluation to the state’s evidence in arriving at its determination of probable cause, and that the court improperly precluded the respondent from introducing evidence that “would [have been] sufficient to rebut the finding of probable cause.” General Statutes § 54-46a (b). We agree.

These claims arise out of the following procedural context. In conducting the transfer hearing pursuant to § 46b-127, the court, as required by that statute, followed the procedures provided by § 54-46a. After the state had presented its evidence and the respondent had engaged in cross-examination of the state’s witnesses, as was his right under § 54-46a, the court made an oral finding of probable cause to believe that the respondent committed the crime of murder by intentionally killing Blue. In making that finding, the court stated that it considered itself bound by our decision in In re Edwin N., supra, “to look at the evidence presented by the prosecution in the light most favorable to the State . . . .” The respondent objected to the court’s use of that standard of evaluation of the evidence, claiming that such a deferential standard, although appropriate for appellate review of a finding of probable cause, was not the appropriate standard for a trial court to use in determining probable cause after an evidentiary hearing.

Thereafter, the respondent made the following three part oral offer of proof pursuant to § 54-46a (b): (1) at the time of the shooting, Rodney Lewis, who had been charged with attempted assault in connection with the incident, was not in front of James and Blue, as James had testified, but was behind them when James and Blue were walking down the street; (2) within hours of the shooting, Lewis had admitted shooting Blue;* and (3) a “blood feud” existed between James’ family and the respondent’s family, that included the use of the criminal justice system by James and his family against the respondent and his family. The court ruled that the respondent would not be permitted to introduce this evidence because the “evidence would not be sufficient to rebut [the court’s] finding of probable cause.” In making this determination, the court stated that it viewed the offer of proof “most favorably to the State.” The respondent excepted to the court’s ruling and specifically objected to “the ruling that you view the offer of proof in the light most favorable to the State.”

We first consider the court’s finding of probable cause, based solely upon the state’s evidence. The court believed that, in deciding whether the state had established probable cause, it was required to view the state’s evidence in the light most favorable to the state. Presumably, this meant that any inferences were to be drawn and any questions of credibility of witnesses were to be resolved in favor of, rather than contrary to, a finding of probable cause. The court based this belief; see footnote 8, supra; on the following language in In re Edwin N., supra, 284: “Viewing the proffered proof most favorably to the state, the court must decide whether the state’s evidence would warrant a person of reasonable caution to believe that the respondent had committed the crime with which he was charged.” (Emphasis added.) We agree with the respondent that the trial court gave improper effect to the italicized language.

First, that language was dictum in the case. The issue under consideration in that part of In re Edwin N., supra, was whether evidence was sufficient to support the trial court’s implied finding of intent to commit murder, and not whether the standard applied by the trial court to the state’s evidence was improper. Id., 283-84. Indeed, other language used by this court in that case underscored the trial court’s role as a finder of facts based on its independent evaluation of the evidence produced in the transfer hearing. We noted, for example, that “the court could ‘hear any evidence that it determines to be reliable, and that is material and relevant to the issue of probable cause.’ ” (Emphasis added.) Id., 281, quoting In re Ralph M., supra, 307. We referred, also, to the need of the trial court “to make the evidentiary findings that warrant depriving the juvenile of the protections to which he would otherwise be entitled.” (Emphasis added.) In re Edwin N., supra, 282. Finally, in deciding that the trial court’s implied finding of intent to kill was supported by the evidence, we stated: “Although the respondent introduced other evidence suggesting that the shooting might have been accidental or unpremeditated, the trial court was entitled to resolve the assessment of credibility of this testimony in favor of the state.” (Emphasis added.) Id., 284.

Second, as In re Edwin N. itself makes clear, the probable cause determination depends on factual findings. Id., 282. Central to the factfinding process is the process of drawing inferences, and central to the process of drawing inferences is the notion that the fact-finder is not required to draw only those inferences consistent with one view of the evidence, but may “ ‘draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.’ ” State v. Grant, supra, 604, quoting State v. Dumlao, 3 Conn. App. 607, 616-17, 491 A.2d 404 (1985). It would be inconsistent with that notion to require the trial court, engaged in a transfer hearing pursuant to § 46b-127, to view the state’s evidence in the light most favorable to the state, because to do so would deprive the trial court of the necessary option of drawing inferences from such evidence that it deems to be reasonable and logical and that are unfavorable to the state.

Third, to limit the trial court to a favorable view of the state’s evidence would be incompatible with the requirement of § 46b-127 that the transfer hearing be conducted according to the procedures of § 54-46a. Those procedures include “the right [of the respondent] to . . . cross-examine witnesses against him . . . .” General Statutes § 54-46a (b). The principal purpose of cross-examination; “the greatest legal engine ever invented for the discovery of truth”; (internal quotation marks omitted) State v. Brigandi, 186 Conn. 521, 533, 442 A.2d 927 (1982); is to enable the factfinder to assess the credibility of the witness, and thus the truth of his testimony. Id. If the trial court were required to view the state’s evidence in its most favorable light, the respondent’s right of cross-examination would be largely irrelevant. We decline to read § 46b-127 to require such an incongruous result.

We do not conclude, of course, that the trial court in this case was required to view the state’s evidence in its least favorable light, or that it was barred from drawing any reasonable and logical inferences from that evidence that were favorable to the state. We hold only that it was required to arrive at its determination of whether the state had established probable cause unfettered by the view that it must draw all inferences and resolve any questions of credibility favorably to the state.

Thus, the trial court’s role in determining probable cause in an evidentiary hearing pursuant to § 46b-127 is similar to its role in other factfinding proceedings: it must consider all the evidence before it, including any frailties therein disclosed by cross-examination; it must draw whatever inferences therefrom that it considers to be reasonable and logical; and it must decide whether that evidence, including those inferences, would warrant a person of reasonable caution to believe that the respondent committed the crime with which he is charged. The only difference between this proceeding and other factfinding proceedings is that the level of certainty required in this proceeding is considerably lower than in other proceedings. Proof of probable cause is not as demanding as proof by a fair preponderance of the evidence; Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977); Newtown Associates v. Northeast Structures, Inc., 15 Conn. App. 633, 636, 546 A.2d 310 (1988); and is substantially less demanding than proof beyond a reasonable doubt. State v. Patterson, supra, 720. Although “[t]he quantum of evidence necessary to establish probable cause exceeds mere suspicion . . . [tjhere is often a fine line between mere suspicion and probable cause, and [tjhat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.” (Internal quotation marks omitted.) Id.

It follows from this conclusion that the trial court also applied an improper standard to the respondent’s offer of proof. If it is inconsistent with the provisions of § 54-46a to view the state’s evidence most favorably to the state in determining whether the state has established probable cause, a fortiori it is inconsistent with those provisions to view the respondent’s offer of proof, made in an attempt “to rebut the finding of probable cause”; General Statutes § 54-46a (b); most favorably to the state, as the court did in this case.

Under § 54-46a (b), if the court finds probable cause based on the state’s evidence, “the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered.” The accused only gains the right to present that evidence if “the court determines that such evidence would be sufficient to rebut the finding of probable cause.” General Statutes § 54-46a (b). The purpose of this procedure is to protect the proceeding from evidence that, even if believed, would not undermine the court’s antecedent finding of probable cause while, at the same time, safeguarding the accused’s interest in attempting to persuade the court that, despite the state’s evidence, based upon all the available evidence probable cause is lacking.

Applying this standard to the respondent’s offer of proof, we conclude that the court improperly refused to permit him to present the evidence he offered. In this respect, it is significant that: (1) Blue was shot and killed by only one bullet; (2) there was no ballistic evidence identifying that bullet as having come from either the respondent’s or Lewis’ weapon; and (3) the state did not claim in the trial court, and specifically disclaimed in oral argument in this court, that the respondent was criminally liable as an accessory. The state’s sole theory is that the respondent fired the fatal shot, and that, although the evidence indicates that they were shooting at Blue virtually simultaneously, the respondent and Lewis were not acting in concert with or in aid of each other.

The respondent offered to produce evidence that: (1) Lewis was shooting at Blue from behind and not from in front of Blue; (2) Lewis admitted to having shot and killed Blue; and (3) James had a motive to incriminate the respondent. On the basis of this evidence, the trial court could have found probable cause that Lewis shot Blue as Blue turned to the right into the alley. In short, if the court credited the evidence that the respondent offered to produce, that evidence could have provided a basis for a determination by the trial court that its finding of probable cause that the respondent killed Blue was rebutted. Under these circumstances, the court improperly precluded the respondent from introducing this evidence in the transfer hearing.

This does not mean, of course, that the trial court in this case was required to credit that evidence, or to conclude from it that the finding of probable cause was rebutted. It means only that the court was required to view the offer of proof in the appropriate light, then to permit the respondent to introduce the evidence, and then to exercise its judgment and to determine, based upon all the evidence—the state’s and the respondent’s—whether there was probable cause to believe that the respondent intentionally killed Blue.

These conclusions render it unnecessary to consider the respondent’s remaining claim on appeal, namely, that the court improperly concluded that, under the facts of this case, there could be two inconsistent findings of probable cause. That claim rests on a supposition that it would be improper for the same trial court to find probable cause both that (1) the respondent killed Blue, and (2) Lewis killed Blue. Since the court did not make such findings, we leave the resolution of that issue to a case that properly presents it.

The order of transfer is reversed, and the case is remanded for a new transfer hearing.

In this opinion the other justices concurred.

       The respondent appealed to the Appellate Court from the transfer order of the trial court, and we transferred the appeal to this court pursuant to Practice Book § 4023.

       General Statutes § 53a-54a provides: “(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.”

       The transfer provisions of General Statutes § 46b-127 pertain to a child who has “attained the age of fourteen years.”

       The petition also alleged delinquency by virtue of the serious juvenile offense of attempted murder in violation of General Statutes §§ 53a-54a and 53a-49, as well as the offenses of criminal use of a firearm, carrying a pistol without a permit, unlawful discharge of a firearm, reckless endangerment, and escape from Long Lane School.

       The state filed a simultaneous motion for transfer pursuant to General Statutes § 46b-126. That statute provides for transfer, under specified circumstances, to the regular criminal docket of children over the age of fourteen who are charged with certain serious juvenile offenses other than murder. That motion was based on the charge of attempted murder contained in the delinquency petition. See footnote 4, supra. The court severed that motion for transfer, and this appeal involves only the motion for transfer filed pursuant to General Statutes § 46b-127.

       General Statutes (Rev. to 1991) § 46b-127 provides: “mandatory transfer OF CHILD CHARGED WITH CERTAIN FELONIES TO REGULAR CRIMINAL docket. 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 the violation of any provision of title 53a which is designated as a class A felony, other than murder, 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 (3) any child referred for the violation of any provision of title 53a which is designated as a class B felony, 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. 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. An order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal. 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.”
      This section was amended, effective July 1, 1991, but the amendments are not relevant to the issues in this appeal.

       General Statutes § 54-46a provides: “probable cause hearing for PERSONS CHARGED WITH CRIMES PUNISHABLE BY DEATH OR LIFE IMPRISONMENT. (a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, 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.
      “(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in superior court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. The accused person shall have the right to counsel and may attend and, either individually or by counsel, participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at his own expense. At the close of the prosecution’s case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.
      “(c) If, from the evidence presented pursuant to subsection (b) of this section, it appears to the court that there is probable cause to believe that the accused person has committed the offense charged, the court shall so find and approve the continuance of the accused person’s prosecution for that offense. A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense.”

       The court stated: “The In re Edwin N. [case] discusses the . . . rule ... of probable cause in a transfer hearing. . . . [I]n that discussion, the Court indicated that in these transfer proceedings, the test would be, viewing the proffered proof most favorably to the State, a person of reasonable caution could believe that the respondent committed the crime of murder. So, that I have to look at the evidence presented by the prosecution in the light most favorable to the State, and determine whether a person of reasonable caution could believe, not beyond a reasonable doubt . . . that this respondent had committed the crime of murder. Namely, intended to kill somebody and did, indeed, kill somebody. And, under the standard of In re Edwin N., 215 Connecticut 277,1 think that 284 is the part I’m referring to. I would find that based on the evidence presented by the prosecution probable cause exists.”

       See footnote 7, supra.

       The respondent supported this part of the offer of proof by stating that three witnesses who were on the street that night, namely, Kanisha Harvin, Nikole Shirley and Ann Marie Masonette, would testify that Lewis was behind James and Blue, not in front of them. The respondent also proffered the written statements of these witnesses, along with some diagrams they had made, that they had given to the New Haven police.

       The respondent offered to produce the testimony of Charles Steven Jones, Blue’s uncle, that within hours of the shooting Lewis “yelled out the window and told me yes, I’m glad I shot your nephew and I’m glad he’s dead.” The respondent also offered to produce the corroborating testimony of Latisha Adkins and Kanisha Harvin that they heard Lewis say that to Jones, and that Harvin would testify further that Lewis was laughing when he said “yeah, I killed him, that’s right, I killed him.” The respondent also proffered the written statements of these witnesses in support of this part of his offer of proof.

       In support of this allegation, the respondent offered to prove a series of specifically described incidents purporting to establish “a pattern of Moses James, his family, and associates using the criminal justice system to get back or get at [the respondent], and his brothers, and his family.”

       The court stated that rebutting its finding of probable cause meant “that a person of reasonable caution wouldn’t believe that he committed” the murder, and that this was to be done by comparing the offer of proof “even the defense material, most favorably to the State.” The court also stated that “I don’t believe that probable cause requires that I exclude all other possibilities at a probable cause level.”

       The history of the incorporation of General Statutes § 54-46a into General Statutes § 46b-127 is as follows. In In re Ralph M., 211 Conn. 289, 559 A.2d 179 (1989), we held that § 46b-127, as it then provided, did not require that “strict evidentiary standards” be followed; id., 307; and that, therefore, hearsay was admissible at such a transfer hearing “as long as the court properly determined that it was relevant and reliable.” Id., 310. One of the principal bases for this conclusion was the fact that § 46b-127, which at that time made no reference to § 54-46a, omitted the language of § 54-46a that a probable cause hearing “shall be confined to the rules of evidence . . . .” Id., 305-306. Thereafter, the legislature enacted No. 90-136 of the 1990 Public Acts, which incorporated, with certain exceptions not relevant here, the procedures of § 54-46a into § 46b-127.

       For example, the court could have found probable cause from this evidence that, because James had a motive to incriminate the respondent, his testimony was not worthy of belief, and that it was Lewis, rather than the respondent, who shot Blue.

       For example, the court could have credited the respondent’s evidence but nonetheless concluded that its antecedent finding of probable cause was not rebutted. Under this scenario, the court could have found probable cause that, despite James’ motive to incriminate the respondent, James’ testimony was worthy of belief, and that, despite the testimony placing Lewis behind Blue, it was the respondent who shot Blue.


source: Caselaw Access Project

author: Co vello, J. Berdon, J.,

license: Public Domain

text:
    State of Connecticut v. Timothy Dobson
    (14251)
    Peters, C. J., Shea, Glass, Covello and Berdon, Js.

      Argued October 1, 1991
    decision released February 4, 1992

      JohnF. Merchant, with whom, on the brief, was Mark Phillips, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert A. Lacobelle, assistant state’s attorney, for the appellee (state).
   Co vello, J.

This is the defendant’s appeal from his conviction of murder in violation of General Statutes § 53a-54a (a). The issues on appeal are whether the trial court: (1) erred in allowing into evidence the defendant’s postarrest statements to the police; and (2) improperly limited the cross-examination of a state’s eyewitness. We now affirm.

The jury might reasonably have found the following facts. On October 21, 1988, at approximately 6 p.m., the defendant shot and killed the victim, Joseph Rucker, at the P.T. Bamum Apartments in Bridgeport. The jury found the defendant guilty of murder. The trial court sentenced the defendant to a term of sixty years to run consecutively with sentences already being served.

I

The defendant first claims that the trial court improperly denied his motion to suppress as evidence his post-arrest oral statements made to Detective Robert Kwet and Patrol Officer Paul Carlson. The trial court subsequently admitted these statements into evidence. The facts relevant to this issue are as follows. At about 3 p.m. on October 24, 1988, Bridgeport police arrested the defendant and charged him with unlawful restraint.* At the police station some time later, the police advised him that he was also being arrested for murder.

Upon the defendant’s arrival at the police station, Detective Leo Krusinski read the defendant the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), from a printed form and then asked him to complete the top portion of the form that requested general information conceming his name, age and educational background. The defendant’s responses revealed that he had completed eleventh grade and could read and write. In addition, Krusinski requested that he read the Miranda rights appended to the form and put his initials by each one if he understood the rights. The defendant initialed each right and also complied with a further request to read and initial a waiver of his Miranda rights to document his waiver of the right to an attorney and his willingness to be interviewed and answer questions. Krusinski also asked the defendant to sign the form indicating that he understood all of his rights, but the defendant, maintaining that he would not sign without first consulting his attorney, refused to sign the document. As Krusinski began to write a note on the report concerning the defendant’s refusal to sign, the defendant changed his mind and, without further comment from Krusinski, signed the form.

At about 3:30 p.m., Lieutenant Michael Kozlowski, who was also present, signed the report as a witness along with Krusinski. After the defendant completed and signed the form, he asked Kozlowski if he could telephone his attorney. Kozlowski allowed him to place the,call but the line was busy. Kozlowski then brought the defendant to Kwet, who had the original murder warrant, and advised Kwet that the defendant had already read his Miranda rights and had unsuccessfully tried to contact his attorney and would like to try again.

Kwet formally served the defendant with the warrant and then, without any questioning by the detective, the defendant asked him the date and time of the murder. After Kwet responded to his inquiry, the defendant immediately offered an alibi that he was at a bar called Nick & Neal’s with “two girls,” both named Maria, at the time of the shooting. Following the defendant’s explanation, Kwet asked him if he was willing to make a statement. The defendant declined, stating that he would answer questions but would not sign a statement until he spoke with his attorney. Kwet then allowed him to telephone his attorney but the attorney was not in his office. The police then placed the defendant in a booking area cell.

At 7 p.m., Carlson, who was just beginning his evening shift, brought the defendant to the detective bureau. Carlson, who had been investigating the murder, allowed the defendant to telephone his girlfriend and, following their phone conversation, he again read the defendant the Miranda rights. After reading a rights form identical to the one that he had earlier signed, the defendant asked Carlson if he could reduce his bond. After Carlson said he could not, the defendant said that he would not complete and sign the rights form without first consulting his attorney. Nevertheless, he said he was willing to answer questions about the homicide investigation. In response to an inquiry about the murder, the defendant told Carlson that he belonged to a gang called the “Terminators.” The defendant said that the leader of the gang had sent a member to bring the victim back to the P.T. Barnum Apartments so they could shoot him. The defendant admitted to having a gun when the gang surrounded the victim but said that it was Vincent Green who shot and killed the victim with an AK-47 rifle.

The defendant argues that because he did not initiate the discussions with Kwet and Carlson, his statements to them should not have been admissible. He claims that his invocation of the right to counsel should act as a complete invocation of this right and cover any of his subsequent statements, oral or written. The defendant asserts that his statements are inadmissible under the Smith v. Illinois, 469 U.S. 91, 92, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984) (per curiam), test for a waiver of the right to counsel enunciated in Connecticut v. Barrett, 479 U.S. 523, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987). “That [test] requires a finding that the suspect ‘(a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.’ Smith v. Illinois, [supra, 469 U.S. 95]. See also Edwards [v. Arizona, 451 U.S. 477, 485-86 n. 9,101 S. Ct. 1880, 68 L. Ed. 2d. 378 (1981).]” Connecticut v. Barrett, supra, 479 U.S. 527. As to the alibi disclosed to Kwet, we conclude that the defendant initiated those discussions and waived his right to counsel in a knowing and intelligent manner. With respect to the statements made to Carlson, we are unpersuaded that the test for waiver of the right to counsel is applicable to the circumstances of these statements. We address these two statements seriatim.

A

Assuming, arguendo, that the defendant invoked his right to counsel when he asked to telephone his attorney, we are persuaded from the evidence that the defendant thereafter initiated the conversation with Kwet that led to the disclosure of his alibi. It is clear from an examination of the record that Kwet served the murder warrant on the defendant without attempting to initiate interrogation. Furthermore, the actual serving of the warrant itself is a procedural formality not tantamount to an initiation of interrogation. State v. Evans, 203 Conn. 212, 225-29, 523 A.2d 1306 (1987). The defendant then initiated a dialogue by inquiring about the circumstances of the murder and, thereafter, offered his alibi. We are also convinced that, pursuant to the second prong of the Smith v. Illinois test, there was a waiver of the right to counsel in a knowing and intelligent manner when, as here, the defendant, who had an eleventh grade education and could read and write, had, less than fifteen minutes prior to volunteering his alibi, signed the prescribed form indicating that he understood all of his Miranda rights.

B

With respect to the remarks made to Carlson, we first note that on remand from the United States Supreme Court in Connecticut v. Barrett, we held that the Smith v. Illinois test was inapplicable and that a defendant’s oral statements are admissible when, in a limited invocation of his right to an attorney, an accused agrees to make oral statements but refuses to endorse written ones without consulting an attorney. State v. Barrett, 205 Conn. 437, 448-49, 534 A.2d 219 (1987); see also Connecticut v. Barrett, supra, 479 U.S. 529. In Barrett, the defendant, after signing an acknowledgment that he had received his Miranda warnings, told the police that “he would not give [them] any written statements but he had no problem in talking about the incident.” Connecticut v. Barrett, supra, 479 U.S. 525. The defendant fails to distinguish State v. Barrett, supra, 205 Conn. 437, but instead contends that Connecticut v. Barrett still requires an analysis under the Smith v. Illinois two-prong test for a waiver of the right to counsel.

In Connecticut v. Barrett, the United States Supreme Court decided that there was no need to consider even the first prong of the Smith v. Illinois test, i.e., whether the defendant “ ‘initiated further discussions with the police,’ ” because there, as here, the defendant’s willingness to make oral statements did not represent an “ambiguous or equivocal response to the Miranda warnings . . . .” Connecticut v. Barrett, supra, 479 U.S. 529 n.3. “To conclude that [the defendant] invoked his right to counsel for all purposes requires not [only] a broad interpretation of an ambiguous statement, but [also] a disregard of the ordinary meaning of [his unequivocal] statement.” Connecticut v. Barrett, supra, 479 U.S. 529-30. Because the defendant clearly manifested his intent, in an unambiguous manner, to answer questions but not sign anything, we conclude that his statements to Carlson are not subject to this test.

The defendant, however, relies on Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990), claiming that because he requested counsel, he should not have been interrogated without counsel present. In Minnick, federal law enforcement officials ended their interrogation of the defendant once he requested counsel. After the defendant conferred with counsel, a county deputy sheriff, telling the defendant that “he could not refuse,” reinitiated the interrogation resulting in the defendant’s confession. The United States Supreme Court reversed the conviction and held that “when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.” Id., 489-91.

Minnick is distinguishable from the case at bar because in Minnick it was clear that the defendant had invoked his right to counsel for all purposes. Here, it is equally apparent that there was only a limited invocation of that right for written statements; the defendant repeatedly asserted his willingness to make oral statements to the police. Here, the defendant never requested counsel to be present for the purpose of discussing the shooting with the police. The defendant’s “expressed willingness to speak may well have had its origins in a misperception about the risk associated with incriminatory oral communications”; State v. Barrett, supra, 205 Conn. 449; but “we have never ‘embraced the theory that a defendant’s ignorance of the full consequences of his decisions vitiates their voluntariness.’ [Oregon v. Elstad, 470 U.S. 298, 316, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985); Colorado v. Spring, 479 U.S. 564, 107 S. Ct. 851, 93 L. Ed. 2d 954 (1987)].” Connecticut v. Barrett, supra, 479 U.S. 530.

II

The defendant next claims that he was not allowed to cross-examine fully a prosecution witness, Ophelia Williams, because the trial court: (1) disallowed his attempt to elicit from Williams that her prior felony conviction was for possession of narcotics with intent to sell; (2) denied access to Williams’ presentence investigation report (PSI) prepared with respect to her narcotics felony conviction; and (3) limited his cross-examination of Williams on the extent of her drug usage. We conclude that no improper curtailment of the defendant’s cross-examination occurred.

A

The defendant first contends that even though he cross-examined Williams about her prior felony conviction and her continuing probation resulting from that conviction, he should have been able also to cross-examine her as to the nature of the felony, i.e., possession of narcotics with intent to sell.

“The defendant’s right to cross-examination . . . is not absolute and is subject to reasonable limitation by the court.” State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). “The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge. This discretion comes into play . . . after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. State v. Castro, 196 Conn. 421, 424, 493 A.2d 223 (1985); State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980). The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which the jurors, as the sole triers of the facts and credibility, can appropriately draw inferences relating to the reliability of the witness. United States v. Vasilios, 598 F.2d 387, 389 (5th Cir. 1979) [cert. denied, 444 U.S. 967, 100 S. Ct. 456, 62 L. Ed. 2d 380, cert. denied sub nom. Alexander v. United States, 444 U.S. 932, 100 S. Ct. 277, 62 L. Ed. 2d 190 (1979)]; State v. Castro, supra, 425.” State v. Vitale, 197 Conn. 396, 402, 497 A.2d 956 (1985). With respect to narcotics felony convictions, this standard is met when, as here, the defendant is allowed to impeach the witness by eliciting a prior, unspecified felony conviction. State v. Geyer, 194 Conn. 1, 16, 480 A.2d 489 (1984).

In Geyer, we held that narcotics convictions are crimes which “do not reflect directly on the credibility of one who has been convicted of them.” State v. Geyer, supra, 12; see also United States v. Gross, 603 F.2d 757 (9th Cir. 1979) (evidence of prior convictions for narcotics offenses are not within the concept of crimen falsi and are therefore inadmissible unless the government bore the burden of proving that the probative value of prior convictions for impeachment purposes exceeded the prejudicial effect); see generally 3 J. Weinstein & M. Berger, Weinstein’s Evidence f 609 [4] n.29. Crimes not reflecting directly on credibility are not per se admissible for impeachment purposes but must survive a balancing of probative value versus prejudicial tendency; crimes in this category are not as readily admissible as those that “by their very nature indicate dishonesty or tendency to make false statement^].” State v. Geyer, supra, 12, citing State v. Nardini, 187 Conn. 513, 523-24, 447 A.2d 396 (1982).

We further noted that, when the trial court is faced with a decision of whether to admit, as evidence of credibility, crimes which do not reflect directly on credibility, the prudent course, one that would diminish the prejudicial effect, would be to allow the defendant to mention that the witness was convicted of an unspecified crime carrying a penalty of more than one year, at a certain time and place. State v. Geyer, supra, 16. Except for the defendant’s inconsequential failure to inquire about where Williams was convicted, this is precisely what transpired in this case. We conclude, therefore, that the witness’ admission to an unnamed felony conviction was sufficient to satisfy the constitutional standard of cross-examination under the sixth amendment.

B

The defendant next claims that he was improperly denied access to the witness’ PSI. The defendant claims that because the PSI may have contained relevant information of which he was unaware, the trial court should have granted him access to it pursuant to Practice Book § 917 (7). We disagree.

“PSIs result from a presentence inquiry into the circumstances of the offenses, the attitude of the victim or his immediate family, the criminal record, social history and present condition of the defendant, and, if desirable, the mental and physical state of the defendant. . . . ‘Their sole purpose is to enable the court, within the limits fixed by statute, to impose an appropriate penalty, fitting the offender as well as the crime.’ State v. Gullette, 3 Conn. Cir. 153, 167, 209 A.2d 529 (1964).” Steadwell v. Warden, 186 Conn. 153, 158-59, 439 A.2d 1078 (1982). Practice Book § 917 limits access to PSIs because they “contain personal, and possibly embarrassing, information about the defendant.” State v. Fair, 197 Conn. 106, 113, 496 A.2d 461 (1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1494, 89 L. Ed. 2d 895 (1986).

Section 917 (7) provides that when a PSI is relevant to a proceeding before the trial court, such court, may, in its discretion, “order that the report be made available to counsel for the parties for the purpose of such proceeding.” Here, the trial court exercised the discretion implicit in the use of the word “may” in § 917 (7) to protect the private and confidential nature of the PSI but still accommodated the defendant’s request for information about Williams. As an alternative to allowing the defendant access to the PSI, the trial court asked the defendant what information he was looking for in the PSI. The defendant responded that he wanted to ascertain the nature of Williams’ criminal record and whether conditions were placed on her probation. The trial court ordered the probation officer, whom the defendant had subpoenaed to appear in court, to meet with both counsel and to answer the defendant’s questions. Defense counsel also wanted to know whether the state had offered Williams any consideration with respect to her felony sentence for testifying against the defendant. The trial court informed defense counsel that he could inquire about that on cross-examination. After the meeting with the probation officer the following exchange between the trial court and defense counsel occurred:

“The Court: . . . I just want to make sure you met, is there any problem?
“Mr. Merchant: There’s no problem that arose out of the meeting. There may be some issues that we will deal with before this Court as is appropriate but the information that you ordered him to give to me was given.”

Since the record discloses that the trial court provided alternate and less intrusive means of access to the information that the defendant sought, we conclude that the trial court did not abuse its discretion in denying access to the confidential document itself.

C

Finally, the defendant claims that the trial court impermissibly limited his cross-examination concerning Williams’ drug and alcohol use. The trial court restricted the cross-examination to October 21, 1988, the day of the shooting. The defendant argues that since Williams did not report to the police that she had witnessed the shooting until the next day, he should have been able to inquire about Williams’ drug or alcohol usage after the day of the shooting but prior to her report to the police. From our examination of the record, it is apparent that the defendant inquired about such usage on both days and that Williams responded negatively in both instances. The dialogue at issue occurred as follows:

“Q. [Miss Williams,] have you ever used drugs?
“A. Yes.
“Q. On October 21, 1988, had you had any alcohol to drink that day?
“A. No.
“Q. Did you take any drugs that day?
“A. No.
“Q. Between, roughly, 6 o’clock or 6:10 [p.m.] or whatever on October 21st, 1988, until 5 [p.m.] October 22nd, 1988, did you take any alcohol?
“A. No.
“Q. Did you take any drugs?
“A. No.”

We therefore conclude that this claim is without merit.

The judgment is affirmed.

In this opinion Peters, C. J., Shea and Glass, Js., concurred.

Berdon, J.,

dissenting. I disagree, and would hold that the oral statements made by the defendant to Patrol Officer Paul Carlson implicating him in the murder should have been suppressed because they were taken in violation of his right to have counsel present during custodial interrogation under the fifth and fourteenth amendments to the constitution of the United States. It is now beyond debate that if the individual in custody “states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” Miranda v. Arizona, 384 U.S. 436, 474, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Although the majority reflects doubt, it is clear that the defendant had invoked his all-inclusive right to counsel after initially signing a waiver form by asking Lieutenant Michael Kozlowski if he could telephone his attorney, John Merchant. The police had no doubt that the defendant wanted his attorney; when Kozlowski brought the defendant to Detective Robert Kwet, he advised Kwet that the defendant had tried to contact his attorney and would like to do so again. The state had no doubt, and acknowledges as much in its brief by stating that “Kozlowski then turned the defendant over to Detective Robert Kwet and told Kwet that the defendant had been advised of his rights and that he wanted to talk to his attorney but the line was busy.” I am sure the defendant had not wished merely to pass the time of day with his attorney on the telephone.

Having unequivocally invoked his right to counsel, questioning may not be resumed without an attorney present, unless the defendant validly waives his presence by initiating “further communication, exchanges or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). This rule has been described as a “ ‘rigid’ prophylactic rule.” Smith v. Illinois, 469 U.S. 91, 95, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). Edwards v. Arizona, supra, requires that after it is determined that the defendant invoked his right to have counsel present, the state must satisfy a two-prong test to establish a waiver. “[C]ourts may admit [the defendant’s] responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” Smith v. Illinois, supra.

After the defendant was turned over to Kwet and served with the arrest warrant for murder, he initiated a conversation with Kwet and blurted out an alibi. I agree with the majority that there was a waiver with respect to his statements to Kwet concerning his alibi. That waiver satisfied both prongs of Edwards v. Arizona because the defendant initiated the discussion and there was evidence that he knowingly and intelligently waived his right to counsel.

Following the defendant’s alibi statement, Kwet asked him if he would be willing to make a statement. The defendant said he was willing to talk about it, but he would not give a written statement. Thereafter, it is reasonable to assume that the defendant again requested that he be able to contact his attorney because, as the majority admits, Kwet allowed him to telephone his attorney. The defendant, however, was unable to speak to his attorney because he was unavailable.

Judges must “give a broad, rather than a narrow, interpretation to a defendant’s request for counsel . . . .” Michigan v. Jackson, 475 U.S. 625, 633, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986); see, e.g., United States v. Gotay, 844 F.2d 971, 975-76 (2d Cir. 1988) (the defendant’s statement that she could not afford an attorney but was concerned about obtaining one was an ambiguous request for counsel that precluded further questioning except those designed to clarify the ambiguity; “[sjuspects should not be forced, on the pain of losing a constitutional right, to select their words with lawyer-like precision”); United States v. Fouche, 776 F.2d 1398, 1404-1405 (9th Cir. 1985), cert. denied, 486 U.S. 1017, 108 S. Ct. 1756, 100 L. Ed. 2d 218 (1988) (the defendant’s statement that he might want to speak to an attorney constituted an ambiguous request for counsel; subsequent questioning must be limited to clarifying that request); United States v. Webb, 633 F.2d 1140, 1142 (5th Cir. 1981) (the defendant’s statement that he wanted to call his attorney was an ambiguous request for counsel that invoked his right to counsel). It is obvious that the defendant, for the second time, invoked his right to an attorney for all purposes. The right to the attorney may be triggered “in any manner and at any stage of the process. . . . The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” Miranda v. Arizona, supra, 444-45.

The defendant was then placed in a booking area cell. At about 7 p.m., Carlson was directed to obtain a statement from the defendant. The defendant was brought to the detective bureau for this purpose. By sending Carlson to get a statement from the defendant after his second request for counsel, the police committed a clear violation of his right to be free of police-initiated interrogation without counsel present. Edwards v. Arizona, supra. There can be no doubt that the defendant was forced into the interview with Carlson by being taken to the detective bureau. Edwards v. Arizona was designed “to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350, 110 S. Ct. 1176, 108 L. Ed. 2d 293 (1990). In the recent case of Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 489, 112 L. Ed. 2d 489 (1990), the United States Supreme Court pointed out that the rule in Edwards v. Arizona gave force to the Miranda admonitions by making clear that once the accused invoked his right to counsel, all interrogation must cease and cannot be reinitiated by the police until counsel is present or there is a valid waiver of that right.

Even if we viewed the defendant’s second request to Kwet that he be allowed to telephone his attorney as an ambiguous request for an attorney, or even if he made a mere reference to counsel, the defendant’s incriminating statements to Carlson are still not admissible. Under such circumstances, “courts have held that all questioning must cease upon any request for or reference to counsel, however equivocal or ambiguous.” Smith v. Illinois, supra, 96 n.3. Others have held “that when an accused makes an equivocal statement that ‘arguably’ can be construed as a request for counsel, all interrogation must immediately cease except for narrow questions designed to ‘clarify’ the earlier statement and the accused’s desires respecting counsel. See, e.g., Thompsons. Wainwright, 601 F.2d 768, 771-772 [5th Cir. 1979]; State v. Moulds, 105 Idaho 880, 888, 673 P.2d 1074, 1082 (App. 1983).” Smith v. Illinois, supra, 96 n.3. In the present case, the state satisfied neither approach. The police did not cease all questioning nor did they attempt to clarify the defendant’s prior request for counsel; rather, Carlson was specifically sent to get a statement from the defendant. It is constitutionally insufficient to merely “re-Mirandize” the defendant and ask him whether he wants to make a statement. The United States Supreme Court has construed, just as we should, that “the defendant’s request for counsel [is] an extremely important fact in considering the validity of a subsequent waiver in response to police-initiated interrogation.” Michigan v. Jackson, supra, 633 n.6.

In this case, Connecticut v. Barrett, 479 U.S. 523, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987), cannot transform the defendant’s words into a waiver to satisfy the Edwards’ rule. First, we do not reach a Barrett type statement—that is, I will answer your questions but will not sign a statement. The defendant’s invocation of his right to counsel to Kwet canceled any Barrett waiver given to Kwet.

Second, the Barrett analysis is not applicable to this case. Although the defendant indicated to Kwet that he was willing to give a Barrett type statement, that response must be viewed in the context of his general all-inclusive request before Kozlowski to have counsel present and his subsequent request for counsel to Kwet. At best, the Barrett response after the defendant asked for counsel or attempted to contact his attorney made it an ambiguous response implicating his right to counsel, which required the police to limit themselves to questions that clarified the request, if not cease all interrogation. In determining whether there was a waiver, the equivocal words and actions preceding the purported request for counsel, as well as those that are part of the purported request, must be taken into account. See Smith v. Illinois, supra, 96. In Barrett, there was no such attempt to contact counsel, but merely a response by the defendant that he would not give a written statement without counsel. The majority of the United States Supreme Court in Barrett emphasized this distinction when it pointed out that there was no suggestion in the facts that the request for counsel was “all-inclusive.” Connecticut v. Barrett, supra, 479 U.S. 527 n.1.

Third, even if the Barrett response made to Carlson could be considered, reliance upon it is flawed in the same manner as is the Barrett response made to Kwet; it must be reviewed in the context of the prior request or references to counsel made by the defendant. See Smith v. Illinois, supra.

In our overburdened system of justice, we sometimes lose sight of the reasons for the rules that implement constitutional guarantees, such as the right to counsel and the privilege against self-incrimination. We probably all should periodically reread Miranda v. Arizona. Chief Justice Earl Warren quoted in Miranda the case of Brown v. Walker, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819 (1896), as follows: “ ‘The maxim nemo tenetur seipsum acensare [no one shall be compelled to accuse himself] had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which [have] long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, [were] not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.’ Brown v. Walker, 161 U.S. 591, 596-97 (1896).” Miranda v. Arizona, supra, 442-43.

Modern day practices of interrogation, which place heavy psychological pressure upon the person while he or she is in isolation and unfamiliar surroundings, “exacts a heavy toll on individual liberty and trades on the weakness of individuals.” Id., 455. Accordingly, “[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id., 475. The state has not met this burden relative to the statements made by the defendant to Carlson.

I would hold that the statement obtained by Carlson violated the defendant’s fifth and fourteenth amendment rights and that the statement should have been suppressed. I would set the judgment aside and order a new trial. Accordingly, I respectfully dissent.

       General Statutes § 53a-54a (a) provides: “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.”

       The state never formally charged the defendant with this crime.

       The defendant does not argue that he did not understand his rights or any waiver thereof or that he was in any way “threatened, tricked, or cajoled” into any waiver. Miranda v. Arizona, 384 U.S. 436, 476, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The procedural history of the Barrett case is as follows. “In our original decision in this case, we concluded that the statements were inadmissible under the fifth and fourteenth amendments to the United States constitution. State v. Barrett, 197 Conn. 50, 495 A.2d 1044 (1985). We declined to consider what state constitutional rights the defendant might have had because he had raised no such claim either in the trial court or before us. Id., 54 n.3. The United States Supreme Court concluded that we had misinterpreted the applicable precedents and held that the statements were admissible as a matter of federal constitutional law. Accordingly, it reversed our judgment and remanded the case for further proceedings not inconsistent with its opinion. Connecticut v. Barrett, 479 U.S. 523, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987).” State v. Barrett, 205 Conn. 437, 438-39, 534 A.2d 219 (1987). On remand, we concluded “that the trial court correctly admitted the defendant’s oral statements into evidence.” Id., 439.

       Although not addressed in Connecticut v. Barrett, 479 U.S. 523, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987), there is evidence that the defendant in Barrett, made a telephone call to his attorney while in custody. State v. Barrett, 197 Conn. 50, 56, 495 A.2d 1044 (1985).

       The defendant’s second telephone call to his attorney occurred immediately after he told Carlson that he was willing to answer questions but not willing to sign anything until he spoke with his attorney. Throughout the period in issue, he twice said that he was willing to answer questions and three times said that he would not sign anything without his attorney. In light of these repeated assertions, we conclude that the defendant unequivocally manifested an intent to discuss freely with the police any aspect of their investigation and that his desire to contact counsel was only in connection with anything that would be reduced to writing. There is no allegation here that the police obtained any written statement against his will.

       Although not raised by the defendant, Practice Book §§ 915 and 916 are also relevant to this issue.
      Practice Book § 915 provides: “The presentence investigation report shall be provided to the judicial authority, and copies thereof shall be provided to the prosecuting authority and to the defendant or his counsel in sufficient time for them to prepare adequately for the sentencing hearing, and in any event, no less than twenty-four hours prior to the date of the sentencing. Upon request of the defendant, the sentencing hearing shall be continued for a reasonable time if the judicial authority finds that the defendant or his counsel did not receive the presentence investigation report within such time.”
      Practice Book § 916 provides: “The presentence investigation report and copies thereof made available under Sec. 915 shall be returned to the probation officer or delivered to the clerk immediately following the imposition of the sentence. No person shall, without the permission of the court, make or cause to be made any copy of any presentence investigation report except as authorized by Secs. 915 and 917.”
      Practice Book § 917 provides: “The presentence investigation report shall not be a public record and shall not be accessible to the public. It shall be available initially to the parties designated in Sec. 915 for use in the sentencing hearing and in any subsequent proceedings wherein the same conviction may be involved, and it shall be available at all times to the following ... (7) Any court of proper jurisdiction where it is relevant to any proceeding before such court. Such court may also order that the report be made available to counsel for the parties for the purpose of such proceeding . . . .” (Emphasis added.)

      A third approach, which even if accepted, would not lead to a different result. “Others have attempted to define a threshold standard of clarity for such requests, and have held that requests falling below this threshold do not trigger the right to counsel. See, e.g., People v. Krueger, 82 Ill. 2d 305, 311, 412 N.E.2d 537, 540 (1980) (‘[a]n assertion of the right to counsel need not be explicit, unequivocal, or made with unmistakable clarity,’ but not ‘every reference to an attorney, no matter how vague, indecisive or ambiguous, should constitute an invocation of the right to counsel’), cert. denied, 451 U.S. 1019, [101 S. Ct. 3009, 69 L. Ed. 2d 390] (1981).” Smith v. Illinois, 469 U.S. 91, 96 n.3, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). The Supreme Court of the United States has not yet resolved the conflict between these rules; but it would seem that to give full force to the right to counsel would require all doubts be resolved in favor of the accused. See Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 491, 112 L. Ed. 2d 489 (1990).

       I am aware that in State v. Barrett, 197 Conn. 50, 56, 495 A.2d 1044 (1985), there is an indication the defendant attempted to contact counsel. Nevertheless, when charting the limits of the Barrett rule adopted by the United States Supreme Court in Connecticut v. Barrett, 479 U.S. 523,107 S. Ct. 828, 93 L. Ed. 2d 920 (1987), we must look at the predicate facts considered by that court and not extraneous matters considered by other courts.