Date: 03-28-2016

Case Style: STATE OF CONNECTICUT v. MICHAEL LABARGE

Case Number: AC 37581

Judge: Alexandra D. DiPentima

Court: Connecticut Appellate Court

Plaintiff's Attorney: Melissa L. Streeto, Brian Preleski

Defendant's Attorney: William B. Westcott

Description: from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a54a and tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1). On appeal, the defendant claims that the trial court improperly (1) denied his motion to sever for trial the two charges against him and (2) denied his motion to suppress certain statements that he had made to state correction officers. We affirm the judgment of the trial court. The jury could have reasonably found the following facts. In the evening of August 29, 2009, the defendant came across the victim, Cornell Johnson, selling crack cocainetothedefendant’sgirlfriend,SherriClarke.The defendant then beat the victim with a baseball bat and stabbed him nineteen times with a knife, killing him. The defendant then cut off the victim’s penis and left themurderscenewithClarke,takingthevictim’spenis, identification, money, and drugs with him. The couple wenttotheirapartmentinNewBritainwherethedefendant flushed the victim’s penis down the toilet. The couple also showered, changed clothing, and smoked crack. IntheearlymorningofAugust30,2009,thedefendant and Clarke returned to the murder scene and set fire to the victim’s car. Later that morning, the couple purchasedtwohandsawsfromTheHomeDepotandagain returned to the murder scene. There, they used the hand saws to cut the victim’s body into fifteen pieces and they then hid the victim’s remains in the nearby woods. The defendant subsequently was arrested in connectionwiththemurderanddismembermentofthevictim. The state charged the defendant in a two count, single longforminformationwithmurderinviolationof§ 53a54a in count one and tampering with physical evidence in violation of § 53a-155 (a) (1) in count two. Following a jury trial, the defendant was convicted on both counts,1 and the court, D’Addabbo, J., sentenced the defendanttoatotaleffectivesentenceofsixty-fiveyears incarceration. This appeal followed. Additional facts will be set forth as necessary. I The defendant first claims that the court abused its discretion by denying his motion to sever the murder count from the tampering count. His claim is twofold. The defendant first relies on State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987),2 to argue that the denial of his motion to sever prejudiced his right to a fair trial because the jury, after hearing the facts underlyingthetamperingcharge,whichheargueswere particularly brutal, violent, and shocking, could not fairly consider his guilt as to the murder charge. In
addition, the defendant argues that the court’s denial of his motion to sever compromised his fifth amendment right to testify in connection with the murder charge but to remain silent with respect to the tampering charge. Thefollowingadditionalproceduralfactsarerelevant to the resolution of the defendant’s severance claims. On May 10, 2012, the state filed a substitute long form information charging the defendant in count one with murder in violation of § 53a-54a and in count two with tampering with physical evidence in violation of § 53a155 (a) (1). The factual underpinning of the tampering charge related to the state’s claim that, on the day after the murder, the defendant, with the help of his girlfriend, cut up and concealed the victim’s body by placing it in various locations in the woods. In response, on May 15, 2012, the defendant filed a motion to sever the murder charge from the tampering charge. AttheMay24,2012hearingontheseverancemotion, the defendant made a twofold claim. First, he argued thatbeingrequiredtodefendthemurderandtampering charges in the same trial would substantially prejudice him because the facts underlying the tampering charge were too brutal, violent, and shocking to allow the jury to consider fairly and independently his guilt as to the murder charge.3 Second, he claimed that he wished to testify in response to the murder charge but not in regard tothe tamperingcharge, andthat beingrequired to defend both charges in the same trial prejudiced his right, alternately to present a defense to the murder charge while preserving his right to remain silent as to the tampering charge. As to this second aspect of his claim regarding severance, the defendant stated that he had ‘‘substantial evidence to offer to the fact finder related to the cause of death of [the victim]. If [his] testimony is believed his conduct could be justified.’’ In addition, he stated that ‘‘[i]n contrast . . . there [was] no advantage to him or incentive to him to testify on the tampering case.’’ Thestaterespondedthatseverancewasunwarranted where the charges arise from the same criminal act or transaction and the offenses are of the same character. Specifically, the state argued that the burden rested on the defendant to prove that he would be substantially prejudiced by failing to sever the charges for trial and that the defendant had not only failed to meet this burden, but had overlooked it entirely because the evidenceregardingeachchargewould,infact,beadmissible regarding the other charge. Thus, the state claimed, because the evidence would, in any event, be cross admissible,thedefendantcouldnotproveanyprejudice by the joinder of the charges. In making this assertion, the state noted that the defendant had acknowledged that the evidence underlying the two charges would be cross admissible if the charges were tried separately.4
On May 30, 2012, the court denied the defendant’s motioninanoralruling.Thecourtnotedthattheburden was on the defendant to prove that the charges should betriedseparatelybyestablishingthatthechargeswere not of the same character and that the defendant had not met this burden. As to the defendant’s first claim, the court found that the ‘‘defendant [had] offered no evidence or argument to support the proposition that the offenses are not of the same character.’’ Further, the court stated that ‘‘the evidence appears to be cross admissible with respect to each count. Evidence that a murder was committed appears to be admissible in the count . . . alleging dismemberment and evidence that the body was dismembered appears to be admissible in the count alleging murder, particularly the expected testimony of the medical examiner.’’5 With respect to the defendant’s second claim, the court concluded that the defendant had not met his burden to prove that trying the cases together compromised his right to testify in the murder charge and to refrain from testifying in the tampering charge. The court explained that it could grant the defendant’s motion on that ground only if the defendant made a ‘‘convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing it is essential that the defendant present enough information regarding the nature of the testimonywhich[he]istogiveononecount,andhisreasons for not wishing to testify on the other . . . .’’ The court then considered the defendant’s proffer and concluded that the defendant had not met his burden. The court noted that the defendant merely had stated that he had‘‘substantialinformationtopresenton[themurder] count including information relevant to the defense of justification; [but] other than this presentation, there is no further information concerning the testimony as to the murder count.’’ Additionally, the court stated that the ‘‘defendant ha[d] indicated that he wishes to exercise his fifth amendment right on the tampering with evidence count’’ and that ‘‘the defendant offer[ed] no information to support his position of having a, quote, unquote, strong need to refrain from testifying.’’ As a result, the court denied the defendant’s motion for severance. During the court’s final instructions to the jury, it informed the jury that the defendant had been charged in two counts and that it was the jury’s duty to determine the guilt or nonguilt of the defendant as to each count separately.6 Before we address the defendant’s claims, we set forththestandardunderwhichwereviewatrialcourt’s denial of adefendant’s motion to severfor trial charges already joined in a single information. Practice Book § 41-18provides:‘‘Ifitappearsthatadefendantisprejudiced by a joinder of offenses, the judicial authority
may, upon its own motion or the motion of the defendant, order separate trials of the counts or provide whateverotherreliefjusticemayrequire.’’Thedecision tosevercasesfortrial‘‘iswithinthesounddiscretionof thetrialcourtandthatdiscretionmustnotbedisturbed unless it has been manifestly abused. . . . The discretion of a court to order separate trials should be exercised only when a joint trial will be substantially prejudicialtotherightsofthedefendant,andthismeans something more than that a joint trial will be less than advantageous to the defendant. ‘‘ (Citation omitted; internalquotationmarksomitted.)Statev.Rodgers,198 Conn.53,63,502A.2d360(1985).Onappeal,itisalways thedefendant’sburden‘‘toshowthatthedenialofseverance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions.’’ (Internal quotation marks omitted.) State v. Boscarino, supra, 204 Conn. 721; see State v. Payne, supra, 303 Conn. 544 (‘‘[t]he defendant bearsaheavyburdenof showingthat[joinder]resulted insubstantialinjustice,andthatanyresultingprejudice was beyond the curative power of the court’s instructions’’ [internal quotation marks omitted]). A We first address the defendant’s contention that the trial court improperly denied his motion to sever on the grounds that the factual circumstances underlying thetamperingchargeweresobrutal,violent,andshocking that they tended to arouse the passions of the jury and render it unable to consider fairly and independently the evidence against him in the murder charge. SeeStatev.Boscarino,supra,204Conn.723(‘‘acknowledg[ing] that evidence of a defendant’s brutal or shocking conduct in one case may compromise the jury’s abilitytoconsiderfairlythechargesagainsthiminother unrelated, but jointly tried cases’’). In response to this claim, the state asserts that the court correctly denied the defendant’s motion to sever because the defendant did not make the threshold showing that the evidence with respect to both charges was not cross admissible. In short, the state argues that the court need only consider the Boscarino factors if the court first makes a determination that the evidence would not be cross admissible.Here, thestatenotesthat thedefendanthas acknowledged cross admissibility and that admission, supported independently by facts in the record, should conclude this court’s consideration of the propriety of thetrialcourt’srulingonthemotiontosever.Weagree. ‘‘In the trial court, when multiple charges have already been joined in a single information by the state pursuant to [General Statutes] § 54-57, and the defendant has filed a motion to sever the charges for trial pursuant to Practice Book § 41-18, the defendant bears the burden of proving that the offenses are not of the ‘same character’; General Statutes § 54-57; and there
fore that the charges should be tried separately.’’ State v.Payne,supra,303Conn.549.Tomeetthisburden,the defendant must prove that the evidence of the separate chargeswouldnotbecrossadmissibleifthecaseswere tried separately. See State v. Fana, 109 Conn. App. 797, 804–805, 953 A.2d 898, cert. denied, 289 Conn. 936, 958 A.2d 1246 (2008). This is because ‘‘[when] evidence of oneincidentwouldbeadmissibleatthetrialoftheother incident,separatetrialswouldprovidethedefendantno significant benefit. . . . Under such circumstances, thedefendantwouldnotordinarilybesubstantiallyprejudiced by joinder of the offenses for a single trial. . . . Accordingly,wehavefoundjoindertobeproper[when] the evidence of other crimes or uncharged misconduct [was]crossadmissibleatseparatetrials.’’(Internalquotationmarksomitted.)Statev.Anderson,318Conn.680, 692,122A.3d254(2015);seealsoStatev.Crenshaw,313 Conn. 69, 84, 95 A.3d 1113 (2014) (‘‘[w]e consistently have found joinder to be proper if we have concluded thattheevidenceofothercrimesorunchargedmisconduct would have been cross admissible at separate trials’’ [internal quotation marks omitted]); State v. Schroff, 198 Conn. 405, 409, 503 A.2d 167 (1986) (concluding that ‘‘[e]conomy and expedition of judicial resources are not achieved when the same facts must be proved to two different juries,’’ such as when one charge directly resulted from other charge). Once the defendant makes a threshold showing that the evidence underlyingthe charges is notcross admissible, on appeal the defendant then must prove that the balance of the Boscarino factors weighs in favor of severance, meaning that the denial of severance resulted in substantial prejudice to the defendant that thecourt’scurativeinstructionscouldnotremedy.State v. LaFleur, 307 Conn. 115, 159, 51 A.3d 1048 (2012). In other words, the Boscarino factors are assessed only if the evidence underlying the charges is not cross admissible. Id. (‘‘[w]here evidence is cross admissible, . . . our inquiry ends’’); see also State v. Fana, supra, 109 Conn. App. 804 (‘‘[a]t least with regard to the first Boscarinofactor,adefendantwillnotbeabletodemonstrate prejudice by a consolidation of charges if the evidence presented would have been cross admissible at the two trials, were the charges tried separately’’).7 If the defendant fails to make either showing, the motion to sever must be denied as the defendant has not carried his burden. In the present case, the defendant did not challenge before the trial court the cross admissibility of the evidence if the charges were tried separately and makes no attempt to do so before this court. Instead, he relies solely on the second Boscarino factor to argue that the court abused its discretion by denying his motion to sever. This argument is not available to the defendant becauseofthecrossadmissibilityoftheevidence.State v. LaFleur, supra, 307 Conn. 155. Therefore, on review,
we need not discuss the comparative brutality of his crimes or any of the Boscarino factors. Our review of the record reveals that the defendant’s acknowledgement at trial that the evidence would be crossadmissiblewaswellsupported.Accordingly,even withoutthedefendant’sconcessionofcrossadmissibility, it is likely that the court, on the basis of a proffer from the state, reasonably would have been entitled to come to the same conclusion. As the court explained in its oral ruling denying the defendant’s motion for severance,‘‘theevidenceappearstobecrossadmissible withrespecttoeachcount.Evidencethatamurderwas committed appears to be admissible in the count . . . alleging dismemberment and evidence that the body wasdismemberedappearstobeadmissibleinthecount alleging murder, particularly the expected testimony of the medical examiner.’’ See State v. Moye, 119 Conn. App. 143, 150, 986 A.2d 1134 (‘‘A trial court may admit [e]vidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as . . . concealment of evidence . . . [which] is ordinarily the basis for a charge on the inference of consciousness of guilt. . . . In seeking to introduce evidence of a defendant’s consciousness of guilt, [i]t is relevant to show the conduct of an accused . . . which maybeinferredtohavebeeninfluencedbythecriminal act.’’ [Internal quotation marks omitted.]), cert. denied, 297 Conn. 907, 995 A.2d 638 (2010). Therefore, because the defendant has failed to show that the court’s denial of his motion to sever caused him prejudice and that the cases were not cross admissible, this aspect of his severance claim fails. B The defendant next claims that the court’s denial of his motion to sever violated his fifth amendment right to remain silent with respect to the tampering charge and to testify with respect to the murder charge. In response, the state argues that the court did not abuse itsdiscretionindenyingthedefendant’smotiontosever on this basis because the defendant did not sustain his burden of demonstrating to the trial court that a joint trial on both chargeswould impair his fifth amendment right. We agree with the state. InStatev.Schroff,supra,198Conn.409,ourSupreme Courtdecidedthat‘‘noneedforaseveranceexistsuntil the defendant makes a convincing showing that he has both important testimony to give concerning one count andstrongneedtorefrainfromtestifyingontheother.’’ (Internal quotation marks omitted.) ‘‘In making such a showing, it is essential that the defendant present enough information—regarding the nature of the testimony he wishes to give on [some counts] and his reasons for not wishing to testify on [others]—to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of
economy and expedition in judicial administration against the defendant’s interest in having a free choice with respect to testifying.’’ (Internal quotation marks omitted.) State v. Marsala, 43 Conn. App. 527, 535–36, 684 A.2d 1199 (1996), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997). From the record, we conclude that the defendant failed to sustain his burden of showing that the denial of his motion to sever resulted in substantial prejudice to his fifth amendment rights. Specifically, the defendant provided the court with no information, let alone enough information, for a convincing showing that he had a genuine need to testify on the murder charge and astrongneedtorefrainfromtestifyingonthetampering charge. The only information that the court had before it from which to assess the nature and substance of the defendant’s proposed testimony was defense counsel’s statement that ‘‘[the defendant] intends to testify as to themurdercharge.Hewilltestify,hewilloffersubstantial evidence before the fact finder.’’ In its oral ruling denying the defendant’s motion to sever, the court notedthat‘‘otherthanthispresentation,[thedefendant offered] no further information concerning [his proposed] testimony as to the murder count.’’ The defendant’s showing regarding his reason to refrain from testifying on the tampering count was likewise nondescript. He merely informed the court, in conclusory fashion, that he did not plan to testify as to the tampering charge if the charges were tried separately. At no point did the defendant present any information as to why he did not plan to testify regarding the tampering charge and never identified a ‘‘strong need to refrain from testifyng on the [tampering charge].’’ (Internal quotation marks omitted.) State v. Schroff, supra, 198 Conn. 409. The defendant’s general assertions, unsupported by anyspecificproffer,wereinsufficienttomeethisheavy burdenofdemonstratingthatthedenialofhismotionto sever would substantially prejudice his right to remain silent as to one charge and to testify as to the other. See id. Therefore, ‘‘[t]he defendant’s complete failure to substantiate his claim of prejudice falls far short of the ‘convincing showing’ required by our cases.’’ Id., 410.Insum,thecourt’sdenialofthedefendant’smotion to sever was not an abuse of discretion. II Thedefendantnextclaimsthatthetrialcourtimproperlydeniedhismotiontosuppresscertainincriminating statements that he had made to correction officers at theMacDougal-WalkerCorrectionalInstitution(Walker facility), which he contends were the product of custodial interrogation and made without the benefit of having been accorded his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The defendant also claims that his
statements were obtained in violation of his sixth amendment right to counsel. See Massiah v. United States, 377 U.S. 201, 205–206, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). To prevail on his claims, the defendant must prove that state law enforcement officials purposefully elicited incriminating statements from him while he was in their custody and subject to custodial interrogation.Mirandav.Arizona,supra,444.Thestate respondsthattheseclaimsmustfailbecausetherecord demonstrates that the defendant was never subject to custodial interrogation. We agree with the state. Thefollowingadditionalproceduralhistoryandfacts, as found by the trial court, are relevant to our disposition of the defendant’s suppression claims. The defendant was charged and arraigned on September 9, 2009, in the Bristol Superior Court, at which time a public defender was appointed for his representation and a surety bond was set at five million dollars. On September17,2009,thecasewastransferredtotheNewBritain judicial district and a New Britain public defender entered an appearance on behalf of the defendant in lieuofhispriorcounsel.OnMay16,2012,thedefendant filed a motion to suppress certain statements made to correctionofficersattheWalkerfacility.Thecourtheld an evidentiary hearing on the defendant’s motion on May 24 and 25, 2012. On June 20, 2012, the parties filed memoranda of law and the court heard argument regardingthemotion.OnAugust28,2012,thecourtfiled a memorandum of decision denying the defendant’s motion to suppress. In its memorandum of decision, the court set forth thefollowingaspartofitsfactualfindings:‘‘OnSeptember 25, 2009, the defendant was returning by marshal transportation to the [Walker facility] after a G.A. 7 Meriden Superior Court appearance. Upon his return, thedefendant,aswithallprisonersreturningfromcourt appearances, was brought to the admitting and processing unit. Correctional Officer Kevin Cashman testified that when the defendant returned from his court appearance,heandotherinmatesenteredtheadmitting and processing unit ‘gang’ chained. These inmates, including the defendant, were placed in a ‘gang cell’ for identification purposes. At this location, the restraints were removed from the defendant, and he and other inmates proceeded to a smaller, separate cell area where a strip search was conducted. The defendant wasnotshackled,butundersupervision.Followingthat strip search, the inmates received a meal and were directed to another holding cell, which was specific to the inmate’s particular correctional center or housing area. This ‘destination’ holding cell is approximately twenty feet by fifty feet and is capable of holding up to forty-eight inmates. [Cashman] testified that on September25,2009,thedefendant,uponhisreturnfromhis courtappearance,wasprocessedattheWalker[facility] admitting and processing unit in this fashion.
‘‘[Correctional]Officer[Serge]Duquettetestifiedthat while assigned to the admitting and processing unit at theWalkerfacilityonSeptember25,2009,herecognized the defendant as someone from his hometown of New Britain as he was taking him from the large holding area to the strip search area. [Duquette] called the defendantbyhisstreetname,‘Percocet.’Duquettetestified that he also recognized the defendant’s girlfriend from growing up in New Britain. ‘‘When the defendant was in the destination holding cell, [Duquette] and the defendant had a conversation. Duquette testified that during this conversation, the defendant made incriminating statements to him about a criminal act. ‘‘The defendant’s ‘destination’ holding cell was approximately ten feet from the office of [Cashman]. While in his office, [Cashman] heard a ‘part of the conversation’ between [Duquette] and the defendant. [Cashman] knew the defendant as an inmate, and was aware that the defendant was familiar with Cashman as a correctional officer. [Cashman] testified that as part of that conversation, he heard the defendant use the ‘N’ word.8 This immediately caused safety concerns for Cashman, causing him to instruct [Duquette] to remove the defendant from the holding area and bring him to [Cashman’s] office, while the defendant was waiting to be transported to his housing unit in the Walker facility. ‘‘While in Cashman’s office, the defendant, unshackled,continuedhisconversationwith[Duquette],making what are described as incriminating statements. The testimony indicated that [Cashman] made no inquiry of the defendant while he was in his office. The defendant remained in [Cashman’s] office for approximately five minutes and then was transported by [Cashman] to the defendant’s housing unit. There was no evidence presented that [Cashman] or [Duquette] provided the defendant with ‘Miranda warnings.’ ’’ (Footnote in original.) Before addressing the defendant’s claims, we set forth the applicable standard of review and controlling legalprinciplesthatguideourassessment.‘‘[T]heprosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.’’ Miranda v. Arizona, supra, 384U.S.444.Theseproceduralsafeguardsaregenerally referred to as Miranda warnings. See id., 444–45. A defendant is entitled to Miranda warnings only if he canprovethathewassubjecttocustodialinterrogation; Statev.Pinder,250Conn.385,409,736A.2d857(1999); which requires the defendant to prove that two threshold conditions are satisfied: ‘‘(1) the defendant must
have been in custody; and (2) the defendant must have beensubjectedtopoliceinterrogation.’’(Internalquotation marks omitted.) State v. Gonzalez, 302 Conn. 287, 294, 25 A.3d 648 (2011). A person is in custody for Miranda purposes ‘‘only if, in view of all the surrounding circumstances, a reasonable person would have believed that he was not freetoleave.’’(Internalquotationmarksomitted.)State v. Kirby, 280 Conn. 361, 393, 908 A.2d 506 (2006). ‘‘Two discrete inquiries are essential to determine custody: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.’’ (Internalquotationmarksomitted.)Statev.Turner,267 Conn. 414, 434–35, 838 A.2d 947, cert. denied, 543 U.S. 809, 125 S. Ct. 36, 160 L. Ed. 2d 12 (2004). Adefendantincustodyissubjecttointerrogationnot only in the face of express questioning by police, but also when subjected to ‘‘any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’’ Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). ‘‘Whether adefendantincustodyissubjecttointerrogationnecessarily involves determining first, the factual circumstances of the police conduct in question, and second, whether such conduct is normally attendant to arrest and custody or whether the police should know that suchconductisreasonablylikelytoelicitanincriminating response. . . . A practice that the police should know is reasonably likely to evoke an incriminating responsefromasuspectthusamountstointerrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, thedefinitionofinterrogationcanextendonlytowords oractionsonthepartofpoliceofficersthattheyshould have known were reasonably likely to elicit an incriminating response.’’ (Citations omitted; emphasis in original;internalquotationmarksomitted.)Statev.Canady, 297 Conn. 322, 335–36, 998 A.2d 1135 (2010). ‘‘As a general matter, the standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . . . . [W]hen [however] a question of fact is essential to the outcome of a particular legal determination that implicates a defendant’s constitutional rights, and the credibility of witnesses is not the primary issue, our customarydeferencetothetrialcourt’sfactualfindings is tempered by a scrupulous examination of the record to ascertain that the trial court’s factual findings are supported by substantial evidence. . . . [When] the legal conclusions of the court are challenged, [our
review is plenary, and] we must determine whether they are legally and logically correct and whether they find support inthe facts set [forth]in the memorandum of decision . . . .’’ (Internal quotation marks omitted.) State v. Gonzalez, supra, 302 Conn. 295–96. Inthepresentcase,thedefendantdoesnotchallenge thecourt’sfactualfindings.Instead,thedefendantchallenges only the court’s legal conclusions on the basis ofthosefindings.Weconcludethattherecordsupports the conclusion that defendant was not interrogated as that term is understood in Miranda, and, therefore, we need not reach the question of whether he was held in custody. In reaching this conclusion, we find State v. Vitale,197Conn.396,497A.2d956(1985),tobeinstructive. In Vitale, an incarcerated defendant made unpromptedinculpatorystatementstoauniformedcorrection officer who, having attended high school with that defendant, had started a conversation with him about ‘‘ ‘high school and playing football and things.’ ’’ Id., 410. Despite the fact that the conversation in Vitale had turned to ‘‘why that defendant had been arrested’’; id.; before the defendant made the inculpatory statements, our Supreme Court concluded that that defendant’s statements were not made in response to interrogation.Id.,412.Rather,thecourtdeterminedthat the defendant’s inculpatory statements ‘‘were volunteered by the defendant during a general conversation between him and [the correction officer], wherein the defendant spoke freely about the offenses with which he was charged.’’ Id. The facts we confront in the present case are akin to those found in Vitale. Here, the record demonstrates that the defendant freely volunteered the statements during a neutral conversation with Duquette, who initiated the conversation in order to relieve the tension of a stressful and invasive intake process. Duquette testifiedthatherecognizedthedefendantfromgrowing up in the same town, called the defendant by his street name, asked the defendant whether he was in court for what had occurred in New Britain, and told the defendant that he recognized his girlfriend from growing up in New Britain for the purpose of making an uncomfortable situation more cordial. In our view, those questions fairly can be construed as no more than small talk initiated by a correction officer for the purpose of defusing a stressful and invasive intake process and not for the purpose of soliciting incriminating information from the defendant. See id., 412; see also RhodeIslandv.Innis,supra,446U.S.300(‘‘‘[i]nterrogation,’ as conceptualized in the Miranda opinion, must reflectameasureofcompulsionaboveandbeyondthat inherent in custody itself’’). The record reveals that, indeed,theonlyquestionthatplausiblycouldhavebeen seen as focused on the defendant’s potential criminal liability concerned whether the defendant had been in court in connection with the New Britain murder. The
answer to that question, at its most harmfulness to the defendant, could have elicited an answer that yes, indeed, that was the reason for his presence in court on that date. That answer, however, would not have been inculpatory. The defendant’s affirmation of the reason for his presence at court would have added nothing to the state’s case; it would have contributed nothing to satisfy the state’s burden of proving the defendant’s guilt. The defendant’s frank answer to Duquette’s question about his presence in court could provide no proof of the defendant’s guilt. As such, the question was not reasonably likely to elicit an incriminating response from the defendant. In addition, the record does not disclose that Cashman, through direct questioning or other conduct, subjected the defendant to any questioning that elicited an incriminating response.9 As with Duquette, Cashman did not elicit from the defendant any of his unforeseeably volunteered statements regarding his culpability. State v. Canady, supra, 297 Conn. 335–36 (law enforcementcannotbeheldaccountableforunforeseeableresults oftheir questionsor conduct).Onthe basis of the court’s findings, which are supported by the record, we conclude that the trial court properly determined that the defendant had not been subject to interrogation for the purposes of Miranda when he made the statementsat the Walker facility.Having concluded that the defendant was not subject to an interrogation as contemplated in Miranda, we need not consider whether, in addition, he was in custody for Miranda purposes at the time of the conversations in question. Similarly, our conclusion that the defendant was not subject to interrogation belies his sixth amendment claim that statements that were ‘‘deliberately elicited from him after he had been indicted and in the absence of his counsel’’; Massiah v. United States, supra, 377 U.S. 206; were used against him at trial. ‘‘Because the right to counsel applies only when the government deliberatelyelicitsincriminatinginformation,thedefendant’s sixth amendment right to counsel was not violated.

Outcome: Accordingly, we conclude that the court properly denied the defendant’s motion to suppress the statements. The judgment is affirmed.

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