source: Caselaw Access Project

author: Arthur H. Healey, J. Santaniello, J.,

license: Public Domain

text:
    State of Connecticut v. Charles M. Gray
    (11796)
    Healey, Dannehy, Santaniello, Callahan and Shaughnessy, Js.
    Argued February 5
    decision released July 15, 1986

      Joseph G. Bruckmann, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Mark D. Arons, special assistant state’s attorney, with whom were CarlSchuman, assistant state’s attorney, and, on the brief, John M. Bailey, state’s attorney, and Herbert Appleton, assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The principal issue on this appeal is whether the trial court erred in denying the defendant’s motion to suppress a confession made to a police officer after his arrest. The defendant was charged in a seventeen count substitute information arising out of a robbery in a motel room in East Windsor on January 29, 1977. After a trial to the court, O’Donnell, J., the defendant was convicted of one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4), two counts of being an accessory to robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-8, two counts of being an accessory to kidnapping in the second degree in violation of General Statutes §§ 53a-94a and 53a-8, and one count of being an accessory to burglary in the second degree in violation of General Statutes §§ 53a-102 (a) and 53a-8. The defendant received an effective sentence of not less than six nor more than twelve years. He appeals from the judgment of conviction.

The evidence adduced before the court necessary to our disposition of the principal issue was as follows: After meeting at a restaurant in East Windsor on the evening of January 28, 1977, Dorothy Mercer, Roger E. Williams, Kenneth Moule, Leonard Bancroft and Brad Baker went to the Ramada Inn in East Windsor in the early morning hours of January 29, 1977. Bancroft remained in the car in the parking lot in the back of the inn. Mercer and Williams were in a room at the motel when two black males followed Baker as he entered the room. The two males bound the three victims with tape, put a pillowcase over Williams’ head, and hit Mercer on the head with a blunt object. Bancroft subsequently arrived at the room and helped the victims remove the tape. Personal property of the victims was taken by the two males including credit cards, cash, a jacket, and keys. At no time was the defendant ever identified as a participant in the incident in the motel room by the victims or anyone else.

Lieutenant Thomas J. Laufer, Sr., of the East Windsor police department investigated the Ramada Inn robbery. Laufer testified that a credit card slip, identified by Williams as being an imprint of one of his cards taken during the robbery, was obtained by the police from a gas station in Springfield, Massachusetts.

During the early evening hours of April 2,1977, warrants were issued and executed in Massachusetts to arrest the defendant and to search his apartment and car in Springfield. Laufer accompanied Springfield police officers to the defendant’s apartment. The defendant was arrested and taken into custody when he arrived at his home at approximately 7:15 p.m. and was subsequently taken to the Springfield police station where he was charged with possession of a stolen credit card. At the police station, the defendant allegedly made inculpatory statements to Springfield police officers and to Laufer.

The defendant moved before trial to suppress any statements allegedly made by him which the state intended to use at trial. The motion, which also requested a preliminary hearing on the issue, was denied and the court stated that it would be addressed at trial. During the course of the trial, the state attempted to introduce as a full exhibit a statement allegedly made by the defendant to officer Paula Higgins of the Springfield police department. The trial court granted the defendant’s motion to suppress the Higgins statement, exhibit L, because the state had failed to prove that the defendant had “voluntarily and knowingly waived his rights” prior to the taking of the statement. The defendant also moved to suppress a statement, exhibit P, that he had allegedly later made to Laufer at the Springfield police station. The motion was denied and an exception was taken. The circumstances surrounding the making of the statements must be examined in order to address the defendant’s claim of error.

The defendant testified for the limited purpose of the issue of the admissibility of his alleged statements to Higgins and Laufer. He testified that two Springfield police officers, Detective Breer and Lieutenant Robert Seymour, took him from his holding cell to a “small room” upstairs and interrogated him about the stolen credit card and, after receiving no incriminating response, returned him to his cell.

On April 3,1977, at approximately 7:30 a.m., Higgins interrogated the defendant at the crime prevention bureau at the Springfield police department. Several police officers were present at various times during the taking of the statement, including Seymour, Breer and officer Kelly. Laufer was not present at this time. Higgins testified that the defendant had no difficulty talking to her and was not nervous, upset or threatened. She advised the defendant of his rights, including his right to consult an attorney before questioning began. She testified that he told her that he was “familiar with his rights” because he had been arrested before but that he “wanted to talk, anyway.” The oral statement that he allegedly gave to Higgins was reduced to writing and later typed. The defendant refused to sign it although he allegedly initialed a correction that had been made on it. The interrogation of the defendant lasted approximately forty-five minutes.

Higgins and Seymour testified that Seymour signed the defendant’s name to a carbon copy of the statement given to Higgins and that Seymour and Breer signed as “witnesses.” Seymour explained that he signed the defendant’s name to the purported confession in order to “use a little subterfuge against a codefendant, that’s all.”* The statement taken by Higgins was ruled inadmissible and it was suppressed by the trial court on the basis of insufficient waiver.

The defendant, who had been in custody almost twenty-four hours, was then interrogated by Laufer at the Springfield police department on April 3,1977, at approximately 6:30 p.m. Laufer had already been told by Higgins that day that a statement had been taken from the defendant and that the substance of the statement concerned the crimes that he was investigating. Laufer testified that he advised the defendant “of his Miranda warning” in a waiver that he filled out. He and Higgins witnessed the defendant sign the waiver form. The date on the form was “4/2/77,” but, nevertheless, Laufer testified that it was signed on April 3,1977, just before he took the defendant’s statement. The trial court, during a colloquy on the admissibility of the waiver form, stated that the discrepancy in the dates as disclosed on the form and as testified to by Laufer was only a “clerical error” and admitted the waiver form as a full exhibit. Although the form on which the defendant’s statement is written and Laufer’s testimony indicate that the interrogation began at 6:30 p.m. and ended at 6:50 p.m., the waiver form was not signed until 6:42 p.m. Laufer explained that the defendant had been given “his rights” at 6:20 p.m. and that interrogation began at 6:30 p.m., but that neither the witness nor the defendant signed the form until 6:42 p.m. because “[t]he officer that was nearby had left.” The defendant testified that the only person who advised him of his rights was Laufer. Laufer concluded the statement at 6:50 p.m., eight minutes after the defendant signed the waiver form, but the defendant refused to sign the statement. Laufer testified that the defendant raised his right hand, took an oath, and swore to the truth of the matters contained in the statement. On each page of the statement, including the first page on which he wrote the phrase himself, Laufer himself signed his name to the phrase “Subscribed and sworn to before me . . .” despite the fact that the defendant had not signed it.

The defendant’s principal issue on appeal is whether the trial court erred in denying the defendant’s motion to suppress his statement to Laufer. The defendant claims that the state failed to prove by a fair preponderance of the evidence that the defendant was informed of, or understood, his right to have an attorney present during questioning. He claims that the state failed to meet its burden of establishing that he knowingly, intelligently and voluntarily waived his fifth amendment privilege against self-incrimination, as required by Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

We first address the issue of whether the defendant was properly informed of the constitutional rights as enunciated in Miranda v. Arizona, supra. There was some testimony at trial that Seymour and Laufer advised the defendant of his “rights” at his apartment on April 2, 1977, and that the defendant informed Higgins that he had been arrested before and that he knew and understood his rights. Laufer testified that he had given the defendant all his rights before any interrogation began, although the defendant did not sign the waiver form until twelve minutes into the twenty-minute interrogation. Laufer did not have the defendant sign the waiver portion of the form on which he recorded the statement but rather used a separate form dated a day earlier than when the statement was given. There was some testimony from Higgins as to the specific advisements she had given the defendant. She testified that she told the defendant that he “didn’t have to talk to [her] or any other police officer, and that if he did, anything that he said can and would be used against him. . . . [He] had the right to consult with an attorney before questioning.... [If] he wanted, he could stop talking at any time, and he could consult an attorney. ... [If] he didn’t have the money for an attorney, the Court would appoint one.” The defendant claims that Higgins’ recitation of rights did not include the “significant and separate right to have an attorney present during interrogation.” See Miranda v. Arizona, supra, 471.

While we recognize that “Miranda itself indicated that no talismanic incantation was required to satisfy its strictures”; California v. Prysock, 453 U.S. 355, 359, 101 S. Ct. 2806, 69 L. Ed. 2d 696 (1981); warnings which are a “fully effective equivalent” must be given to a defendant. Miranda v. Arizona, supra, 476. The evidence presented that indicated that warnings were given to the defendant at or around the time of his arrest never explicitly enunciated the rights allegedly given. The state, which bears the burden of proof in these matters, sufficiently demonstrated that the warnings given by Higgins, although she did not testify that she advised the defendant of his right to have an attorney present during questioning, and the waiver form, signed by the defendant and introduced into evidence by the state, were adequate and sufficient warnings. The defendant’s claim that the Miranda warnings were insufficient because of Higgins’ failure to inform him of the right to have an attorney present during interrogation does not have merit under the circumstances of this case. The waiver form signed by the defendant and from which Laufer read the defendant his rights contained the explicit statement that the defendant had a right to have an attorney with him during questioning. In addition, the defendant testified that he was advised of his rights by Laufer, and Higgins testified that the defendant was aware of his rights when Seymour first read them to him prior to the time that he was taken into custody.

On the basis of the record before us, especially the testimony of the defendant that Laufer advised him of his rights, we conclude that there was sufficient evidence before the trial court to sustain its conclusion that the defendant was advised of and understood his constitutional rights.

Our next inquiry must focus on whether the defendant voluntarily, intelligently and knowingly waived his constitutional rights before making the statement to Laufer. In making this determination, “our usual deference to the finding of the trial court on questions of this nature is qualified by the necessity for a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence.” State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); see State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983). “The question of voluntariness, as often repeated, turns on the totality of the circumstances. Boulden v. Hollman, 394 U.S. 478, 480, 89 S. Ct. 1138, 1140, 22 L. Ed. 2d 433 (1969).” United States v. Matthews, 488 F. Sup. 374, 379 (D. Neb. 1980); see State v. Rosa, 170 Conn. 417, 424, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976); State v. Hassett, 155 Conn. 225, 230, 230 A.2d 553 (1967).

“In order to prove that the defendant has effectively waived his privilege against self-incrimination, the state must prove, by a preponderance of the evidence; Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Wilson, 183 Conn. 280, 286-87, 439 A.2d 330 (1981); State v. Derrico, 181 Conn. 151, 162, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); that the defendant knowingly and intelligently waived his constitutional right to remain silent. North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Waiver is not conclusively established by demonstrating that Miranda warnings were given and understood.” State v. Harris, supra, 579-80.

We “must presume that a defendant did not waive his rights; the prosecution’s burden is great . . . . ” North Carolina v. Butler, supra. We must look to “the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, supra; see State v. Williams, 190 Conn. 104, 112, 459 A.2d 510 (1983). It must also be remembered that the defendant, who had been in custody almost twenty-four hours at the time he was interrogated by Laufer, had already been questioned by Higgins about the same robbery and that the trial court found that he had not waived his rights at that time.

The form which Laufer used to record the defendant’s statement contained, on the top on the first page, an advisement of rights section with a statement of waiver. The advisements are not initialed and the “signature” line for the person being questioned is blank. Laufer, nevertheless, signed the form in the space labeled “Witnessed.” The separate and unattached waiver form containing the date of “4-2-77,” the time of “6— pm” and the signature of “C. Gray” is clearly relied upon by the state as evidence for its claim of waiver. While there was testimony in the trial court and a conclusion by the court that the date on the signed waiver form was merely a “clerical error,” our deference to the trial court’s conclusion is limited by evidence which, after a scrupulous examination of the record, leads us to the finding that the defendant did not validly, knowingly and intelligently waive his rights.

The totality of the circumstances demonstrates that the defendant’s statement was given at least in part before he waived his rights or signed the waiver form. Higgins, who witnessed the waiver form, was away from Laufer’s desk for most of the statement and returned only after the statement was being concluded. She testified that she “thought” she signed the waiver form during the statement but she was “not positive.” She did not sign as a witness to the statement, although she signed as witness to the waiver form, because “nobody asked [her] to sign it.” The refusal of a defendant to sign the waiver form portion of the statement is not a “controlling” factor, but it is a relevant one. State v. Derrico, supra, 165; see United States v. Cruz, 603 F.2d 673, 675 (7th Cir. 1979). The converse of that statement is also true. The defendant’s signature on the separate waiver form is a relevant, but not controlling, factor in determining the validity of a waiver. We do not find “affirmative conduct [by the defendant] indicative of a knowingly and intelligently made decision not to remain silent”; State v. Harris, supra, 581; under all the circumstances of this case. “[A] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” Miranda v. Arizona, supra, 475. The circumstances demonstrate less than tolerable treatment of constitutional safeguards, thereby compelling a finding of error on the trial court’s admission into evidence of the statement given to Laufer by the defendant on April 3, 1977.

The defendant claims that if we rule that his confession to Laufer is inadmissible, then “it is clear that the remaining evidence would have been insufficient to support a conviction” on any of the seventeen counts in the substitute information. The defendant specifically claims that the state did not “fully comprehend” the nature of its burden of proof under General Statutes § 53a-8, the theory of liability with which the defendant was charged. The defendant concedes that, if the Laufer confession is considered to have been properly admitted into evidence, then there was sufficient evidence to support a conviction on only two counts, conspiracy to commit robbery in the first degree and accessory to robbery in the first degree. The state, at oral argument, conceded that, even if the Laufer statement were properly admitted, there was insufficient evidence to support a conviction on the sixth count, accessory to robbery in the first degree, and on the eleventh count, accessory to kidnapping in the second degree.

We disagree with the defendant’s characterizations of the possible alternative dispositions of this case based upon the admissibility of the Laufer confession. We must first address the defendant’s claim that the evidence was insufficient to establish the defendant’s guilt beyond a reasonable doubt in the four contested counts because “if we were to rule that the evidence was insufficient, the defendant would be entitled to an acquittal rather than a new trial. Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).” State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983).

“In determining whether the evidence is sufficient to sustain a verdict, ‘the issue is whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.’ . . .” (Citations omitted.) State v. Giguere, 184 Conn. 400, 402-403, 439 A.2d 1040 (1981). “ ‘In reviewing the evidence we must construe it in a light most favorable to sustaining the verdict. State v. Ferrell, supra.’ State v. Pellegrino, 194 Conn. 279, 294, 480 A.2d 537 (1984).” State v. Fernandez, 198 Conn. 1, 22, 501 A.2d 1195 (1985). Under § 53a-8 a person may be prosecuted and punished as if he were a principal offender when, “acting with the mental state required for the commission of an offense, [he] solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense . . . . ” The defendant claims that the Laufer statement, exhibit P, is “absolutely devoid of any indication that, at the time the defendant was sitting in his car awaiting the return of his partners from their venture ‘to take a bookie off,’ it was his conscious objective to assist in any robberies in addition to that of the bookie.” He also claims that there was no evidence either to prove that by acting as a lookout he intended to assist his partners in two kidnappings or to indicate that he had the intent to aid his partners in a robbery, including having the intent to commit burglary in order to do so, or even that a burglary had, in fact, occurred.

Exhibit P indicates that the defendant and two companions, Mike and Egghead, discussed “taking the bookie off” on the afternoon of the subsequent robbery. The defendant drove Mike and Egghead to the Ramada Inn in East Windsor and he remained in the car to act as a lookout. Upon returning to the car, Egghead told the defendant that someone was in the room with the bookie and so they were unable to “get all the money,” but he gave the defendant $11. One of Williams’ credit cards stolen in the robbery was used to put gas in the defendant’s car by a third party to whom Mike had sold the credit card.

Taken together, all the evidence before the trier, including the Laufer statement and the testimony of two victims, as well as the reasonable and logical inferences that may be drawn from that evidence, was sufficient to support a conviction for one count of accessory to kidnapping in the second degree and one count of accessory to burglary in the second degree. It can reasonably be inferred that the defendant, admittedly serving as a lookout during the robbery of a person in a motel, understood and intended that the individual to be robbed would probably have to be restrained by his partners in some manner in order to accomplish the robbery. It is also a reasonable and logical inference that the defendant intended to aid his partners in a burglary because it is also a logical inference that the victim would be in a room, rather than a public area of the motel. The defendant’s statement includes a reference to the fact that the robbery was foiled in part because someone was “in the room” with the individual they robbed. The testimony of Williams indicates that, while he and the female victim were in the room, his friend Baker was coming to the room to get him when “somebody got him in the hallway with a gun, and . . . opened the door and came in.” Regardless of whether the room was registered to any of the victims inside the room at the time of the robbery, Williams’ testimony indicates that the “intruders,” as one victim called them, were not “licensed or privileged” to enter the room and therefore that their entry was unlawful as defined in General Statutes § 53a-102 (a).

We remand this case to the trial court and order that a judgment of acquittal be entered on the sixth and eleventh counts. Because we hold that there was sufficient evidence before the trial court, including the Laufer statement, to sustain the verdicts on the remaining four counts but that the admission of the confession was reversible error, we order that the judgment be reversed and the verdict set aside as to the fourth, tenth, thirteenth and fifteenth counts. The reasoning of the Supreme Court of Missouri in State v. Wood, 596 S.W.2d 394 (Mo.), cert. denied, 449 U.S. 876, 101 S. Ct. 221, 66 L. Ed. 2d 98 (1980), is relevant here. The Wood court said: “When the trial court erroneously admits evidence resulting in reversal, as in the instant case, the State should not be precluded from retrial even though when such evidence is discounted there may be evidentiary insufficiency. The prosecution in proving its case is entitled to rely upon the rulings of the court and proceed accordingly. If the evidence offered by the State is received after challenge and is legally sufficient to establish the guilt of the accused, the State is not obligated to go further and adduce additional evidence that would be, for example, cumulative. Were it otherwise, the State, to be secure, would have to assume every ruling by the trial court on the evidence to be erroneous and marshall and offer every bit of relevant and competent evidence. The practical consequences of this would adversely affect the administration of justice, if for no other reason, by the time which would be required for preparation and trial of every case. This is consistent with Burks v. United States, [437 U.S. 1, 15, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978)], which lists among examples of trial error which do not invoke the Double Jeopardy Clause with regard to retrial, the ‘incorrect receipt or rejection of evidence.’ ” State v. Wood, supra, 398-9. “Double jeopardy does not automatically bar retrial [even] where an insufficiency of evidence results from material being held on appellate review to have been erroneously admitted at trial.” State v. Van Isler, 283 S.E.2d 836, 838-39 (W. Va. 1981); accord, United States v. Tranowski, 702 F.2d 668 (7th Cir. 1983), cert. denied, 468 U.S. 1217, 104 S. Ct. 3586, 82 L. Ed. 2d 884 (1984); United States v. Sarmiento-Perez, 667 F.2d 1239, 1240 (5th Cir.), cert. denied, 459 U.S. 834, 103 S. Ct. 77, 74 L. Ed. 2d 75 (1982); United States v. Harmon, 632 F.2d 812, 813 (9th Cir. 1980); United States v. Mandel, 591 F.2d 1347, 1373-74 (4th Cir.), aff’d, 602 F.2d 653 (4th Cir. 1979) (en banc), cert. denied, 445 U.S. 961, 100 S. Ct. 1647, 64 L. Ed. 2d 236 (1980); United States v. Block, 590 F.2d 535, 543 (4th Cir. 1978); People v. Sisneros, 44 Colo. App. 65, 68, 606 P.2d 1317 (1980); Mulry v. State, 399 N.E.2d 413, 419 (Ind. App. 1980). Thus, where a reversal of a conviction is not a result of insufficiency of evidence but is predicated on, for example, as here, the reception of inadmissible evidence, e.g., the Laufer statement, a remand for a new trial is proper and an appellate court should not review the remaining evidence to determine whether it is sufficient to sustain the conviction. See, e.g., United States v. Mandel, supra. The underpinnings for this rule are twofold. From a defendant’s point of view, if the evidence were determined to be sufficient, such appellate review would constitute an invasion of the province of the factfinder, the jury. Conversely, if the evidence were determined to be insufficient, unfairness to the state might result because the state might have produced other evidence at the trial if the evidence held inadmissible upon appellate review had been excluded at the trial. See, e.g., United States v. Mandel, supra; People v. Sisneros, supra.

We cannot say unequivocally that with the inadmissible confession thus eliminated from the case there would be proof enough left in the record to sustain a conviction on any one or more of the four remaining counts. “In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. . . . Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence .... When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.” Burks v. United States, supra, 15. Because we cannot say that the state will be unable to meet its burden of proof without reference to the inadmissible confession, we do not exclude a retrial. See, e.g., State v. Boone, 284 Md. 1, 17, 393 A.2d 1361 (1978); State v. Van Isler, supra, 839.

There is error, the judgment is set aside and the case is remanded with direction that a judgment of acquittal be entered on the sixth and eleventh counts and for further proceedings in accordance with this opinion on the fourth, tenth, thirteenth and fifteenth counts.

In this opinion Dannehy, Callahan and Shaughnessy, Js., concurred.

Santaniello, J.,

concurring in part and dissenting in part. I agree with the court that there was insufficient evidence to sustain the defendant’s conviction on the sixth and eleventh counts. I must, however, respectfully disagree with the court’s finding that the defendant did not voluntarily, intelligently and knowingly waive his constitutional rights before making his confession to Laufer. The record clearly supports the trial court’s finding that the defendant expressly agreed to give the statement and thereby implicitly waived his Miranda rights. I therefore would find the confession admissible and would sustain the defendant’s conviction on the remaining four counts.

There are ordinarily three means by which a defendant can waive his right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979): he can execute a written waiver of his rights, he can make an express oral statment of waiver, and he can implicitly waive his right to remain silent by exhibiting affirmative conduct indicative of a knowingly and intelligently made decision to give a statement. North Carolina v. Butler, supra, 374. We have held many times that where a defendant expressly agrees to give a statement, such conduct may constitute an implicit waiver of his Miranda rights. State v. Shifflett, 199 Conn. 718, 733, 508 A.2d 748 (1986); State v. Toste, 198 Conn. 573, 583, 504 A.2d 1036 (1986); State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983).

The majority found that “there was sufficient evidence before the trial court to sustain its conclusion that the defendant was advised of and understood his constitutional rights” but went on to hold that there was insufficient evidence to support the court’s finding that he waived his rights. The majority focused its waiver analysis on the validity of the written waiver and concluded that because the written waiver was not executed until halfway through the confession, there was, under the totality of the circumstances, insufficient evidence of waiver. The court did not fully address the question of an implied waiver, and it summarily concluded that there was no affirmative conduct evidencing a “knowingly and intelligently made decision not to remain silent.” In analyzing the issue, the majority has failed to explain that the trial court based its finding of waiver on the defendant’s affirmative conduct expressly agreeing to speak with Laufer, and not on the written waiver. The majority thus has misperceived the issue and has overlooked the evidence on the record which supports the trial court’s conclusion.

Regardless of the validity of the written waiver, the record reveals that the defendant implicitly waived his right to remain silent by his expressed willingness to speak. The defendant himself took the stand at the suppression hearing and stated: “[A]nd [Laufer] said before he asked me any questions concerning these credit cards, I had to sign a waiver, you know, to be able to talk to him. And I told him I didn’t mind talking about any credit cards, because I didn’t know. He asked me, he want[ed] to know who used the card. And at that time, I signed the waiver of my rights, while I [was] there, talking to him . . . . ” (Emphasis added.) Later he also stated: “[Laufer] told me that I didn’t have to talk to him, and he showed me a piece of paper. He said it was an affidavit. He said, ‘Before I can talk to' you, you have to sign this, for the limited purpose of me asking you about, you know, the credit cards.’ He said he wanted it to be legit, and then, that’s when I volunteered, and signed the paper.” (Emphasis added.) When Laufer testified, it became clear that the defendant had signed the written waiver halfway through the confession, but it was emphasized that the defendant had expressly agreed to give the statement and waive his rights. Laufer, when questioned about why the waiver was signed in the middle of the confession, explained: “I felt at that time I wanted the time he signed it, acknowledging this, as well, in front of somebody else. He had already acknowledged it to me.” (Emphasis added.)

Thus, although I agree with the majority that the procedures employed in obtaining the second confession were less than exemplary, I am constrained to hold that there was more than sufficient evidence to find that the defendant waived his right to remain silent. The record clearly shows that the defendant expressly desired to give a statement, and that he implicitly waived his Miranda rights. My conclusion is buttressed by the fact that this issue was not seriously pressed on appeal. The defendant, obviously acknowledging his own testimony at the suppression hearing, did not dispute that the evidence on the record supported a finding of implicit waiver, but instead argued that cases such as State v. Harris, supra, could be distinguished on the ground that in those cases a “more complete” Miranda warning was given.

The defendant was fully apprised of, understood and freely waived his right to remain silent. I therefore concur with the court that a judgment of acquittal should be entered on the sixth and eleventh counts, but dissent from the court’s judgment reversing the defendant’s conviction on the fourth, tenth, thirteenth and fifteenth counts.

       Exhibit L contained an unsigned advisement of rights and the purported confession of the defendant given to officer Paula Higgins. Exhibit L contained the following statement:
      “About two months ago on a weekend, on a Friday, I left the Y at about 8:00 after playing basketball. I got me a sandwich at the Pizza King and met Charlie Cotton and Egghead. I have know Cotton about a year and he lives on Lincoln St. I met Egghead last summer and he lives on Atwood Place. Egghead is a brown skinned dude, about 22, about 6’2” tall, about 175 pounds. He has a medium afro & a mustache.
      “We rode around in my Cougar, Cotton, Egghead and I, and we were talking. Eggie said he knew this bookie that was going to be paying this guy off. He said he was sure that my share would be at least $500 just for driving him. He said to get on 91 and head towards Hartford. It was about a twenty minute drive and Eggie showed me where to pull off and I parked straight ahead after I drove to the right of the gas station. Eggie was like hipping Cotton to it. He’d say when we come up on the guy we’re going to do it then because we know he’s got the money on him. They both told me to stay right here. Cotton had a brown face mask and Eggie had a small silver gun, like a .22. They told me to make sure I don’t let the police come up on them. They said to flash my lights twice if the man came. I saw them take a right around the front of the Ramada Inn and they came back about 45 minutes later with a brown paper bag. Egg got in the back seat with the bag and Cotton got in the front. On the way back they said they didn’t get the big package. I went to Gus Jones’ and played the pinball machine. Cotton slid over and drove my car and Egg got out of the back to the front. They said they were going to see their people and then they would be right back. It was Egg that said this. They took off and when they returned they gave me $11 and said that was my share. Egg had brought the medium size brown shopping bag with him that night.
      “A iéúfilé éi Ai.fi ifíét, Géttéi itii Aiüíú¿ rhf iii. [Isl] C.G.
      “I let Cotton use my car the next day while I was at the Y and when he came back he had put gas in it.”

       We note that the trial court commented: “The Court cannot condone the conduct of the Springfield Police in the subterfuge practiced upon this or any other accused person, and the Court cannot help but look with a jaundiced eye upon the testimony that it was hearing here in the court as to other matters.”

       The three page statement of the defendant taken by Lieutenant Laufer, exhibit P, was as follows:
      “This statement is given to Lieutenant Laufer of the East Windsor Police Department without any threats or promises being made to me. On or about the 29th of Jan. 1977,1 think on a Friday night, I drove down to East Windsor, Conn, in my car, a 1974 Mercury hardtop green with Mass, registration P45-905. In the car with me was a Mike Crumps (or something like that) and a man called Egghead. I think Egghead lives at Edward Place in Springfield, Mass., he is about 6’2”, 21 yrs., med. brown skin. Mike Crumps lives somewhere off of Bay St., 6’2 -190 lbs light brown skin, his bottom lip looks bigger than the top. We drove to the Ramada Inn off of RT 91, parked the car on the side. Mike and Egghead went in to the inn to take a bookie off. This was around the time the number 666 came out. Egghead had a full face suede mask, same one that came out of my house on 4-2-77 at 9 Halsey St. Mike had a gun, I think a .22 cal., handle was brownish marble looking, the rest was silver. We talked about taking the bookie off the afternoon of 1-29-77 or thereabouts. When they went in the building at Ramada on or about Jan. 29, 1977,1 stayed in the car to be a look out. I waited about 40 mins, they came back with a bag. Egghead said we didn't get a chance to get all the money, someone was in the room with him. When they came out of the Inn, Egghead pushed his hat back, part of a snorkle jacket and he had the mask on top of his head and took it off, Crump had a bag. I am not sure what was in it. They gave me $11.00 of what they got. We left and came back to Springfield, Mass. Crump sold some credit cards to Charles Cotton. One of the cards Crump sold to Cotten, Cotten had used to put gas in my car a couple of days after the Ramada Inn Robbery, this would have been some time around Jan. 31,1977 at a BP gas station on St. James Ave. Springfield. This was a credit card in the name of Roger Williams.

        “The above statement is true & correct. I understand that the given a false statement to a police officer in order to mislead him in his investigation a crime & I could be arrested for same. I have read this statement & will appear in court as a witness if called.
      “ ‘Note’ Suspect would not sign statement, he did swear under oath to this officer that it was true.
      “Subscribed and sworn to before me at Springfield, Mass, this 3 day of April 1977.
      “/s/LT Laufer”

       General Statutes § 53a-8 provides: “criminal liability for ACTS OF ANOTHER. 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.”

       At the trial, while the state’s witness Laufer was testifying, the admissibility of the defendant’s statement taken by Laufer was being argued. The state at that time said: “I can’t proceed if it’s [the statement] not in evidence.” Whether this meant, and it was not developed, that the state had no case at all against the defendant if the Laufer statement were suppressed or whether it was merely an adversarial declaration by the state, we cannot say with certitude. “It is impossible to know what additional evidence [if any] the [state] might have produced had the faulty evidence been excluded at trial, or what theory the [state] might have pursued had the evidence before the [court] been different. United States v. Mandel, 591 F.2d 1347,1373-74 (4th Cir.), [aff'd,] 602 F.2d 653 (4th Cir. 1979) (en banc) [cert. denied, 445 U.S. 961, 100 S. Ct. 1647, 64 L. Ed. 2d 236 (1980)]; United States v. Block, 590 F.2d 535, 544 n.12 (4th Cir. 1978).” United States v. Harmon, 632 F.2d 812, 814 (9th Cir. 1980). In any event, we cannot consider it as a confession by the state at the trial that it had no case, in law or fact, against the defendant if the trial court suppressed the Laufer statement.

       It was argued to the trial court that the defendant had orally waived his right to remain silent and that his expressed willingness to speak constituted an implied waiver. The trial court admitted the confession on these grounds stating: “The Court concedes that the time varied, in that Mr. Gray had set the time between 5:00 and 6:00 a.m. on April 3rd, but he did agree to another fact as to evidence which the Court had before it, the testimony of Chief Laufer, and also of Officer Higgins, that he did waive his rights, he waived them and agreed to talk with Chief Laufer on a limited subject; namely, the credit card situation. Officer Higgins testified to this fact, as did Chief Laufer and Mr. Gray.” (Emphasis added.) The court further stated: “The defects in the form of the waiver; namely, the date and time, are satisfactorily explained by examining the totality of the testimony. Further, the Court is of the opinion that the resolution of this matter does not stand or fall on this issue. The Court has been unable to find any law to support

        a conclusion that Miranda warnings of rights and waiver has to be in writing. The State has the burden, and a heavy one, I might note, of establishing the accused person was given his rights; that he knowingly and voluntarily waived these rights. The State rightfully has a heavy burden, and the Court concludes that the State has sustained this burden, as it applies to the admissions made in an unsigned statement by Charles Gray while in custody.” (Emphasis added.)


author: Peters, C. J.

text:
    State of Connecticut v. Lawrence Smith
    (12936)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued June 4
    decision released July 22, 1986

      Martin Zeldis, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      James G. Clark, deputy assistant state’s attorney, with whom, on the brief, were Alan Reisner, assistant state’s attorney, and Bernadette Conway, special deputy assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The dispositive issue in this appeal is whether the trial court abused its discretion by denying the defendant’s motion for a mistrial after the court, in the jury’s presence, engaged in a colloquy with the state’s principal witness. After a trial by jury, the defendant, Lawrence Smith, was convicted of assault in the third degree in violation of General Statutes § SSa-bl,* and was sentenced to one year of imprisonment. He appeals from this judgment. We find error.

The jury could reasonably have found the following facts. On the evening of November 30, 1983, the defendant was in the custody of police and correction officials on the first floor of the Morgan Street detention center in Hartford. The victim, Officer Henry Lojkuc, was an employee of the state department of correction assigned to transfer inmates, via elevator, from the first floor of the detention center to the third floor for “processing,” which included booking, photographing and incarceration. To that end, he entered the elevator with the defendant. During the elevator trip, which lasted five to six seconds, the defendant and Lojkuc were involved in an altercation. When the elevator stopped at the third floor and the door opened, a witness observed the defendant striking Lojkuc’s face with his fist, while Lojkuc tried unsuccessfully to strike back. The defendant was subsequently charged with assault.

On appeal from his conviction, the defendant raises two claims of error: First, that the trial court’s questions to Lojkuc while he was on the witness stand enhanced Lojkuc’s credibility, depriving the defendant of his right to a fair trial before an impartial jury; and second, that the court improperly charged the jury on the standard of proof regarding circumstantial evidence.* Because we find error on the defendant’s first claim, we need not address the second one.

The defendant premises his first claim of error on the trial court’s intervention in the questioning of Henry Lojkuc, the state’s first witness. On direct examination, Lojkuc testified that prior to his service with the correction department, he had served in the United States Marine Corps in Vienna, Austria, and Teheran, Iran. After the defendant had concluded his cross-examination, the trial court initiated the following colloquy with the witness:

“The Court: Nothing further. Just a couple of questions, Officer Lojkuc. You said you were in the Marines, security officer at the embassy?

“The Witness: Yes, sir, I was.

“The Court: And did you indicate Vienna?

“The Witness: Yes, sir.

“The Court: And did you also indicate you were in Iran?

“The Witness: Yes, sir. I did.

“The Court: What period of time?

“The Witness: Nineteen seventy-nine.

“The Court: During the take over?

“The Witness: Yes, sir.

“The Court: Were you a captive?

“The Witness: Yes, sir. I was.

“The Court: How long were you a captive?

“The Witness: Approximately three months.

“The Court: Were you released early?

“The Witness: No, sir. There were two takeovers at that point. One in February 79—was one in November. The takeover in November lasted 444 days.

“The Court: Thank you. Only question the Court has. All right. You are excused, Officer. Thank you. . .

Lojkuc had previously testified that during the elevator ride the defendant had attacked him without provocation, punching him and knocking him to the floor of the elevator and repeatedly striking him thereafter. The defendant, testifying on his own behalf, told a very different story. He claimed that Lojkuc had pushed him inside the elevator while it was stopped on the first floor, and that, while in transit to the third floor, Lojkuc had taken hold of him by the throat and had punched him in the eye. The defendant testified that in an effort to push Lokjuc away, he had knocked Lojkuc down and caused him to strike his head on a metal cage inside the elevator. Both Lojkuc and the defendant suffered minor injuries as a result of the altercation. Which version of the incident the jury accepted as true largely depended on whether it perceived Lojkuc or the defendant as the more credible witness.

The defendant did not immediately object to the trial court’s questioning of Lojkuc. The following day, however, the defendant moved for a mistrial, arguing that the court’s questions had unfairly bolstered Lojkuc’s credibility, depriving the defendant of a fair and impartial jury. The court denied the motion, but proposed to give curative instructions to the jury. In its charge to the jury, the court gave general instructions on gauging witness credibility and exhorted the jurors not to give special credence to the testimony of police and correction officers, but made no reference to its questioning of Lojkuc.

A trial court should grant a motion for mistrial only where it is apparent that an occurrence during the trial has so prejudiced a party that he can no longer receive a fair trial. State v. Fleming, 198 Conn. 255, 264, 502 A.2d 866 (1986); State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984); State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). The trial court enjoys broad discretion in deciding whether a mistrial is warranted, and its decision will be reversed on appeal only if this discretion has been abused. State v. Fleming, supra; State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982). In the instant case, we find that the trial court did abuse its discretion in denying the defendant’s motion for a mistrial.

Due process of law guarantees a criminal defendant a fair trial before an impartial judge and jury in a neutral atmosphere. U.S. Const., amend. XIV; Conn. Const., art. I § 8; State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985); State v. Gordon, 197 Conn. 413, 424D, 504 A.2d 1020 (1985). It is the trial court’s responsibility to conduct the trial in the “ ‘atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.’ ” State v. Fernandez, supra, 10, quoting Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 (1942); State v. Gordon, supra, 425; State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975). Particularly in the presence of the jury, which may readily be influenced by a judge’s words or conduct, the trial court has an obligation to comport itself in a circumspect and dispassionate manner. Quercia v. United States, 289 U.S. 466, 470, 53 S. Ct. 698, 77 L. Ed. 1321 (1933); State v. Fernandez, supra, 12; Cameron v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982); Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 503, 101 A.2d 500 (1953). The trial court should never assume a position of advocacy, real or apparent, in a case before it, and should avoid any displays of hostility or skepticism toward the defendant’s case, or of approbation for the prosecution’s. State v. Fernandez, supra, 12; State v. Bember, 183 Conn. 394, 402, 439 A.2d 387 (1981); State v. Echols, supra, 14.

We recognize that a trial court has a discretionary right to intervene in the examination of witnesses in certain circumstances. Such intervention may be necessary to clarify confusing testimony, to restrain an obstreperous witness, or to elucidate a witness’s understanding of a question. State v. Fernandez, supra, 12; State v. Bember, supra, 402-403; State v. Echols, supra, 14. The court’s questioning of a witness is not necessarily improper because it draws attention to the strengths or weaknesses of a party’s case. State v. Echols, supra, 14. However, the court should avoid questioning witnesses in a manner that reflects in any fashion on their credibility. See State v. Fernandez, supra, 14-15; State v. Mack, 197 Conn. 629, 642-43, 500 A.2d 1303 (1985); Miller v. Drouin, 183 Conn. 189, 192, 438 A.2d 863 (1981). Determinations of credibility are solely the function of the jury. State v. George, 194 Conn. 361, 365, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); Zullo v. Zullo, 138 Conn. 712, 715, 89 A.2d 216 (1952). In all but the most exceptional circumstances, the trial court should allow adversaries’ counsel, subject to the rules of evidence, to elicit from witnesses whatever responses may appropriately influence the jury’s judgments on credibility. See United States v. Hickman, 592 F.2d 931, 936 (6th Cir. 1979); State v. Fernandez, supra, 15-16.

In the instant case, there was no reason for the trial court to supplement counsel’s examination of Lojkuc with questions of its own on the witness’s experiences as a hostage in Iran. Direct and cross-examination had clearly established the witness’s version of the facts, rendering judicial clarification of his testimony unnecessary. The court’s intervention was purely gratuitous. Its questions had no relevance to any material issue in the case. Cf. United States v. Hickman, supra.

While it is impossible to ascertain precisely what effect the trial court’s questioning had on the jury, the possibility of harm is evident. The outcome of the trial depended largely on the jury’s assessments of the respective credibility of Lojkuc and the defendant. Counsel’s questions had established that Lojkuc was a corrections officer with several years experience and that he was a former Marine. Against this backdrop of official authority, the court’s questions invited the jury to perceive the state’s chief witness as someone to be respected and admired—a man who had endured hazardous duty, and eventual captivity, in the service of his country. The defendant, in contrast, was in police custody at the time of the incident and had a prior record of felony convictions. In light of the circumstances, it is impossible for us to agree with the state’s contention that the trial court’s unwarranted intervention was merely harmless error.

In State v. Fernandez, supra, the trial court interrogated the defendant’s sole witness, bringing to the jury’s attention inconsistencies between the witness’s testimony at trial and prior statements made before the court at a guilty plea proceeding. Id., 6-7. We held that the court’s questioning undermined the witness’s credibility and deprived the defendant of his constitutional right to a fair trial. Id., 15-17. The fact that the court charged the jury not to be influenced by the court’s questions to witnesses in its weighing of the credibility of testimony did not cure the error. Id., 8,17.

The instant case is the mirror image of State v. Fernandez. Instead of casting aspersions on the credibility of a defense witness, as in Fernandez, the trial court questioned the state’s principal witness in a manner that tended to enhance the witness’s credibility in the jury’s eyes. Despite the state’s argument to the contrary, a trial court’s bolstering of the credibility of a state’s witness is not fundamentally different, or less harmful, than its attacking the credibility of a defense witness. We deem it “highly inappropriate” for the trial court to interject comments that “might have been construed to indicate a favorable view of the credibility of the witness on the part of the court. . . .” State v. Mack, supra, 642.

The state argues that any prejudice resulting from the trial court’s questions was mitigated by the court’s instructions to the jury to make its own judgments on credibility and to avoid giving particular credence to the testimony of police and corrections officials. We disagree. While this court has traditionally given great weight to curative instructions in assessing a defendant’s claims of prejudice; see State v. Fernandez, supra, 17; State v. Binet, 192 Conn. 618, 632, 473 A.2d 1200 (1984); no relevant curative instructions were given in this case. The trial court’s general instructions on credibility made no reference to how the jury should regard the court’s own questioning of witnesses, and the credibility inferences that might be drawn therefrom. We need not consider whether such a reference, in the circumstances of this case, would have cured the error, or whether the impact of prejudice was too great to be overcome by a properly drafted curative instruction. See Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); State v. Echols, supra, 15-16; State v. Tinsley, 180 Conn. 167, 170-71, 429 A.2d 848 (1980).

Our decision to order a new trial does not depend on what motivated the trial court to intervene in the questioning of Lojkuc. Even though we assume that the court’s intentions were entirely benevolent, “[t]he appearance as well as the actuality of impartiality [of the trial judge] is an essential ingredient of a fair trial.” Cameron v. Cameron, 187 Conn. 163, 170, 444 A.2d 915 (1982); see also State v. Fernandez, supra, 15. It is the effect, and not the motivation of the questioning that compels the result we reach today.

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

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-61. assault in the third degree: class a misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person; he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. . . .”

       The trial court’s charge on circumstantial evidence was similar to the charge which we held to be erroneous in State v. Rodgers, 198 Conn. 53, 57, 502 A.2d 360 (1985).

       Lojkuc made brief additional reference to his Marine service in response to defense questions on cross-examination.

       The state has not argued that the delay in objecting to the trial court’s comments forecloses our review of the defendant’s motion. We have held that an objection to judicial intervention in a trial is timely made so long as it is raised before the jury renders its verdict. Miller v. Drouin, 183 Conn. 189, 193, 438 A.2d 863 (1981).

       The defendant took exception to the court’s ruling.

       The defendant failed to take exception to the trial court’s charge as it related to the relevant issues on this claim of error.

       Unlike the instant case, in which the defendant made a timely motion for mistrial, the defendant in State v. Fernandez failed to object at trial level to the court’s interrogation of the witness. We nevertheless reviewed his claim under the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), on the grounds that the record adequately supported “a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial.” State v. Fernandez, 198 Conn. 1, 9-10, 501 A.2d 1195 (1985), quoting State v. Evans, supra, 70.

       Although we deemed the comments erroneous, we did not grant a new trial in Mack because of the defendant’s failure to make a timely objection to them at trial. State v. Mack, 197 Conn. 629, 642, 500 A.2d 1303 (1985).

       The state argues further that it presented sufficient evidence of the defendant’s guilt at trial to render the trial court’s comments “irrelevant.” As we noted in State v. Castonguay, 194 Conn. 416, 436, 481 A.2d 56 (1984), however, even overwhelming evidence of a defendant’s guilt “hardly addresses the issue of whether the jury that weighed that evidence was impartial.” Id.


author: Callahan, J.

text:
    Kent Oppel v. Raymond M. Lopes, Commissioner of Correction
    (12643)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued April 3
    decision released July 22, 1986

      Andrew B. Bowman, for the appellant (petitioner).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Domenick Galluzzo, assistant state’s attorney, for the appellee (respondent).
   Callahan, J.

This is an appeal from a decision denying a petition for a writ of habeas corpus in which the petitioner, Kent Oppel, challenged the constitutional validity of his Alford plea to murder in violation of General Statutes § 53a-54a (a). The petitioner claims that the habeas court, Smith, J., erred in not vacating his plea because the trial court, Testo, J., failed (1) to explain or apprise the petitioner of the element of intent to cause the death, thus violating the due process clause of the fourteenth amendment; and (2) to comply with Practice Book § 711 (1) by failing to advise the petitioner of the nature of the charge to which he pleaded guilty. We find no error.

The underlying facts of the crime leading to the guilty plea are as follows: At about 5 a.m. on September 19, 1980, the petitioner, who conducted a silkscreen business from his home in Monroe, was in his workshop when his wife came home. An argument arose between them concerning the manner in which cars were parked in a parking area at the residence. The petitioner claims that, as a result of the dispute, his wife picked up a pipe and struck him. In response, the petitioner picked up a hammer and repeatedly struck his wife on the head with it. He then took a cord from his workbench and strangled her. Thereafter he sought the assistance of a worker on the premises to help him dispose of his wife’s body. The two men dug a grave beneath a patio that was under construction and buried the wife’s body. They then cleaned up the area and disposed of her car. Approximately a month later, the Monroe police, acting pursuant to a search warrant, excavated the patio and located the victim’s body.

On March 8, 1983, the petitioner, who was charged with the murder of his wife, appeared before the trial court to change his prior plea of not guilty to a plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). On April 22, 1983, the petitioner was sentenced to a term of not less than seventeen and one-half years to life, which sentence he is presently serving. On March 16, 1984, the petitioner filed a petition for a writ of habeas corpus attacking the validity of his plea. After the petition was denied, certification was granted for an appeal to this court. General Statutes § 52-470 (b).

The petitioner’s primary claim is that the court’s failure to explain the critical element of intent contained in General Statutes § 53a-54a (a) constitutes a due process violation requiring the vacation of his guilty plea and sentence. We disagree.

We note at the outset that “[cjollateral attacks on judgments are not favored. Every presumption favors the jurisdiction of the court and the regularity of its processes.” State v. Wright, 198 Conn. 273, 283, 506, A.2d 556 (1986) citing Monroe v. Monroe, 177 Conn. 173, 177, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). A guilty plea, however, that is not both voluntary and knowing is in violation of due process and thus void. McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); State v. Lopez, 197 Conn. 337, 341, 497 A.2d 390 (1985). For a guilty plea to be truly voluntary, the defendant must understand the law in relation to the facts. McCarthy v. United States, supra, 466. Moreover, since a defendant waives several constitutional rights when he elects to plead guilty to a criminal offense, the choice of a guilty plea is of profound significance. Boykin v. Alabama, 395 U. S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Childree, 189 Conn. 114, 120, 454 A.2d 1274 (1983). In pleading guilty, a defendant waives his privilege against compulsory self-incrimination, his right to trial by jury and his right to confront his accusers. Boykin v. Alabama, supra; State v. Lopez, supra; State v. Childree, supra; see Practice Book § 711 (5). A guilty plea, therefore, is constitutionally valid only if the record affirmatively discloses that the plea was entered voluntarily and intelligently. Boykin v. Alabama, supra, 242; State v. Lopez, supra; State v. Marra, 174 Conn. 338, 340, 387 A.2d 550 (1978); Blue v. Robinson, 173 Conn. 360, 373, 377 A.2d 1108 (1977).

The petitioner’s primary claim is largely premised on the United States Supreme Court decision in Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976). In Henderson, the defendant challenged the voluntariness of his guilty plea on the ground that he had not been informed that intent to cause the death of his victim was an element of the offense. On remand from the federal appellate court, the district court held a hearing and found that neither counsel nor the court had advised the defendant of the element of intent and it therefore found the plea involuntary. The Supreme Court reasoned that the plea could not have been voluntary in the sense that it constituted an intelligent admission that he had committed the offense unless the defendant received “real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” Id., 645.

The petitioner acknowledges the distinction between this case and Henderson, that is, the explicit finding in the Henderson case that neither defense counsel nor the trial court had explained the intent element to the accused. There is no such finding in this case. He argues, however, that there is no justification nor does it enhance the integrity of the judicial system to presume that defense counsel adequately and accurately explained the elements of the offense. We disagree. The Supreme Court indicated in Henderson that the record normally contains an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Henderson v. Morgan, supra, 644. The court also indicated that, even without such an express representation, it may be appropriate to presume that in most cases defense counsel has routinely explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. Id. The trial judge in this case specifically asked the petitioner whether his attorney had explained the essentia] elements of the crime with which he was charged and the petitioner responded in the affirmative. It is also noteworthy that the offense to which the defendant pleaded in Henderson was not specifically charged in the indictment in that case but was a lesser included offense included in the indictment. Unlike the present case,- where the indictment alleged that the defendant “with the intent to cause death of Robin Oppel, did strangle” the victim, the elements in Henderson had not been set forth in any document which had been read to the accused or to which he had access. Id. See McCarthy v. United States, supra, 467-68 n.20.

In State v. Childree, supra, on which the petitioner also relies, we recognized that Henderson v. Morgan, supra, did not announce a per se rule that notice of the true nature of a charge always requires a description of every element of the offense. There we held, however, that the trial court did not adequately explain a critical element of the crime of larceny to the defendant; State v. Childree, supra, 123; and that the circumstances did not warrant the presumption that defense counsel explained the elements of the charge. Id. In fact, the record there gave no indication of such an explanation. Here, while the intent to cause the death of the victim is a critical element of murder since it distinguishes murder from manslaughter; compare General Statutes § 53a-54a with § 53a-55; see State v. Childree, supra; the record supports the presumption that defense counsel explained the elements of the offense because the petitioner, at the time of the plea canvass, acknowledged that defense counsel had explained the essential elements of the crime to him. Moreover, in hildree the defendant was charged with both robbery and larceny. We noted that, because the distinction between the two offenses is a subtle one, the court was “all the more responsible for guaranteeing that counsel and the defendant [had] explained the consequences of pleading guilty to both offenses.” State v. Childree, supra, 124. In this case the petitioner was charged only with the crime of murder. This charge did not encompass such subtleties as to require a detailed explanation of the offense by the trial court once it had ascertained that counsel had explained the elements to the petitioner.

We find that the judge’s inquiry concerning the defendant’s understanding of the elements of murder was sufficient to overcome this collateral attack on his conviction. Unlike the cases relied on by the petitioner, the record in this case adequately discloses that the petitioner possessed an “understanding of the law in relation to the facts.” McCarthy v. United States, supra, 466; see State v. Evans, 5 Conn. App. 113, 118, 497 A.2d 73 (1985); cf. Finley v. Manson, 1 Conn. App. 260, 470 A.2d 1234 (1984).

The petitioner next asserts that the trial court, in accepting his guilty plea, did not inform him adequately of the nature of the charge against him, as required by Practice Book § 711 (l). Specifically, he asserts that the trial court’s failure to provide adequate advice on the intent element of General Statutes § 53a-54a (a) or to explain his Alford plea is a violation of the Practice Book requirements. Further, the petitioner argues that the trial court failed to ascertain whether there was a strong factual basis for the Alford plea. Because we have already concluded that it is appropriate under the circumstances of this case to presume that defense counsel explained the intent element of § 53a-54a (a), we will only address the petitioner’s claims concerning his Alford plea.

Practice Book § 711 was designed to ensure that guilty pleas are made voluntarily and with full knowledge of the waiver of specific constitutional rights. State v. Lopez, 197 Conn. 337, 345, 497 A.2d 390 (1985); State v. Suggs, 194 Conn. 223, 226, 478 A.2d 1008 (1984); State v. Godek, 182 Conn. 353, 357, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). Subsection (1) requires that the judicial authority not accept the plea without determining that the defendant fully understands the nature of the charge to which the plea is offered. The petitioner argues that the trial court’s explanation of the Alford doctrine was inadequate under this section and therefore his plea was not knowingly, intelligently and voluntarily entered. We disagree.

First, in the context of a habeas corpus attack on a conviction, we do not interpret Practice Book § 711 (1) to require a detailed explanation of every aspect of a defendant’s plea under North Carolina v. Alford, supra. In discharging its obligations under Practice Book § 711, the court’s inquiry “need not be so restricted that the ‘[j]udge [must] mount the bench with a script in his hand’; State v. James, 197 Conn. 358, 363, 497 A.2d 402 (1985) citing Sappington v. United States, 468 F.2d 1378, 1380 (8th Cir. 1972). Many problems would be avoided, however, if the court used “not a script . . . but . . . some sort of checklist, as a prompter, so that whatever form the dialogue takes, all of the necessary lines will be delivered.” Id., 363-364 citing United States v. Fels, 599 F.2d 142, 149 n.6 (7th Cir. 1979).

The record in this case indicates that the trial judge briefly explained the Alford plea to the petitioner and also ascertained that defense counsel had explained the plea to him. See Henderson v. Morgan, supra; State v. Childree, supra, 123. We conclude that the trial court adequately determined that the petitioner understood the nature of the charge against him and the significance of a plea pursuant to North Carolina v. Alford, supra, before accepting his guilty plea.

Finally, the petitioner claims that the trial court failed to ascertain whether there was a strong factual basis for the defendant’s Alford plea. We have recognized that the acceptance of an Alford plea must be premised on a sufficient factual basis. See, e.g., State v. Deboben, 187 Conn. 469, 475-76, 446 A.2d 828 (1982); Blue v. Robinson, supra, 378. The trial court did not make a specific finding that there was a factual basis for the defendant’s plea, nor was it required to do so by Practice Book § 713. Such a finding is implicit in the trial court’s acceptance of the plea. We have reviewed the record and conclude that there were detailed and exhaustive facts which provided an adequate factual basis for acceptance of the petitioner’s plea.

We find no error.

In this opinion the other justices concurred.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       General Statutes § 53a-54a (a) provides: “Sec. 53a-54a. murder DEFINED. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. classification, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant acted 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 Court: Do you understand the offense of murder with which you are being charged?
      “Mr. Oppel: Yes, your Honor.
      “The Court: I assume your attorney has explained the essential elements of this clime; is that correct?
      “Mr. Oppel: Yes, your Honor.”

       We note that, although the record does not indicate whether or not the indictment was read to the petitioner in open court, the trial court did ask the petitioner whether he had discussed the crime as charged in the indictment.
      “The Court: Have you discussed with your attorney... the crime of murder that has been charged in the indictment against you and your plea of guilty thereto?
      “Mr. Oppel: Yes, your Honor.

       “[Practice Book] Sec. 711.--advice to defendant
      “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands: “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”
      We note that the petitioner does not raise any other claim concerning the trial court’s plea canvass under Practice Book § 711. The record indicates that the trial court thoroughly inquired as to the petitioner’s waiver of constitutional rights when entering a guilty plea and the nature of the sentence on a charge of murder. See Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Lopez, 197 Conn. 337, 497 A.2d 390 (1985).

       “The Court: And he has explained to you, I would assume, your guilty plea under the Alford Doctrine; is that correct?
      “Mr. Oppel: Yes, your Honor.
      “The Court: Do you understand that doctrine?
      “Mr. Oppel: I do.
      "The Court: The doctrine, meaning quickly in a thumbnail, that the evidence seems to be that if you went to trial you probably would be found guilty. Did he explain that to you?
      “Mr. Oppel: Thoroughly, your Honor.”

       “[Practice Book] Sec. 713.--factual basis
      ‘ ‘The judicial authority shall not accept a plea of guilty unless he is satisfied that there is a factual basis for the plea.”