State v. Russaw ( 2022 )

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STATE OF CONNECTICUT v. DEYKEVIOUS RUSSAW
(AC 43748)
Elgo, Suarez and Palmer, Js.
Syllabus
Convicted of the crime of conspiracy to commit murder as a result of a
drive-by shooting during which an unintended person rather than the
intended victim was fatally shot, the defendant appealed. He claimed,
inter alia, that his conviction was legally insufficient because the state
relied on the doctrine of transferred intent to prove the conspiracy
charge and because it is legally impossible to conspire to kill an unin-
tended victim. The state, which also charged the defendant with murder,
alleged that the defendant had intended to kill a member of a rival gang
but, instead, fatally shot the unintended victim, and the trial court, in
its instructions to the jury, stated that the doctrine of transferred intent
applied to both the murder charge and the charge of conspiracy to
commit murder. Held:
1. The defendant could not prevail on his unpreserved claim that his convic-
tion of conspiracy to commit murder is legally insufficient, which was
based on his assertion that the doctrine of transferred intent does not
apply to the crime of conspiracy, and, thus, he was deprived of his right
to due process because it is legally impossible to conspire to kill an
unintended victim: the state did not rely on the doctrine of transferred
intent, as that theory bore no relevance to the conspiracy charge because
it made no difference whether the rival gang member or the unintended
third party was killed, and the state alleged and proved the elements
of the conspiracy charge, which were the agreement to kill the rival
gang member and the overt act of firing the gunshot intended for the gang
member in furtherance of that agreement; moreover, the trial court’s
jury instruction on transferred intent did not transform the state’s theory
of the conspiracy charge into one predicated on that doctrine, that
instruction having been, at most, surplusage that had no bearing on the
nature of the state’s case or the jury’s consideration of whether the
state proved its case.
2. The defendant’s claim that the trial court improperly denied his motion
to suppress certain incriminating statements he had made to the police
during their custodial interrogation of him was unavailing, as the record
supported the court’s findings that the police ceased questioning him
after he invoked his right to counsel but that he thereafter initiated
further communication with them of his own accord without counsel
present:
a. Contrary to the defendant’s assertion that the police induced him to
speak to them after he invoked his right to counsel, the trial court
correctly concluded that he knowingly and voluntarily initiated further
communication, as it credited testimony by R, the lead detective during
the questioning, that another officer had informed R that the defendant,
notwithstanding the previous invocation of his right to counsel, wanted
to speak with the police: the defendant was advised of his rights under
Miranda v. Arizona (384 U.S. 436) before questioning resumed, he pro-
vided no authority to support his claim that the police were required to
provide him with an attorney or means to contact one, he did not ask
them for permission to contact anyone, and his father was at the police
station during the custodial interview and had visited with him; moreover,
the record did not bear out the defendant’s contention of persistent
statements by the police that they wanted to talk to him, and the brief
outline of the incriminating evidence they gave him was in response to
his question about why he was being held on a charge of murder.
b. This court concluded, in light of all of the relevant facts adduced at the
suppression hearing, that the state had met its burden of demonstrating
a knowing, intelligent and voluntary waiver by the defendant of his
Miranda rights, as there was no showing that the police threatened the
defendant or employed other coercive or improper tactics to obtain the
waiver: although the defendant became eighteen years of age the day
before the police questioned him, that did not require the court to reach
a different conclusion, as the defendant had an eleventh grade education,
could read and write, was not impaired in any way, and had signed two
waiver forms after twice being informed of his Miranda rights, and his
assertion of his right to counsel after being advised of those rights the first
time was a clear indication that he understood those rights; moreover,
the defendant’s will was not overborne, as he contended, because the
police did not contact a lawyer for him and, for a period of time, left
him alone in the interview room separated from his father, and the
surroundings and circumstances of his police interview, although hardly
comfortable, did not mean that he was necessarily unable to decide
whether to resume speaking to the police without a lawyer.
c. The defendant could not prevail on his claim that he was harmed by
the admission of R’s testimony as to certain statements the defendant
made during his police interview: because there was compelling indepen-
dent evidence that the defendant was a passenger in the vehicle from
which the gunshot was fired at the time it was fired, his statement to R
acknowledging that he was in the vehicle was merely cumulative, and
his statement to R identifying the intended victim of the shooting did
not establish that the defendant was present when the shooting took
place, as that statement contained no indication as to how the defendant
became aware of the identity of the intended victim, it was hardly persua-
sive evidence of his participation in the shooting, and it could have been
based on information he learned after the shooting; moreover, the state
was not required to establish the shooter’s identity for purposes of the
charge of conspiracy to commit murder, the evidence having been clear
that, even if the defendant did not fire the gunshot, it was fired from
the vehicle in which he was a passenger, and the testimony of another
passenger who claimed that the defendant was not in the vehicle at the
time of the shooting was flatly contradicted by that passenger’s sworn
statement to the police; furthermore, all of the witnesses who testified
were subjected to extensive cross-examination about whatever interest
or motive they may have had to falsely implicate the defendant, and the
jury was well aware of any such interest or motive.
Argued September 20, 2021—officially released June 21, 2022
Procedural History
Substitute information charging the defendant with
the crimes of murder and conspiracy to commit murder,
brought to the Superior Court in the judicial district of
Hartford, where the court, D’Addabbo, J., denied the
defendant’s motion to suppress certain evidence; there-
after, the case was tried to the jury before D’Addabbo, J.;
verdict and judgment of guilty of conspiracy to commit
murder, from which the defendant appealed. Affirmed.
Pamela S. Nagy, supervisory assistant public defender,
for the appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Sharmese L. Walcott, state’s
attorney, and David L. Zagaja, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
PALMER, J. The defendant, Deykevious Russaw,
appeals from the judgment of conviction, rendered after
a jury trial, of conspiracy to commit murder in violation
of General Statutes §§ 53a-54a and 53a-48.1 The defen-
dant’s conviction stems from an incident involving a
drive-by shooting that resulted in the death of an unin-
tended third person rather than the intended victim.
On appeal, he claims, first, that his conviction of con-
spiracy to commit murder is legally insufficient because
the doctrine of transferred intent, upon which he con-
tends the state relied, does not apply to the crime of
conspiracy, and second, that the trial court improperly
denied his motion to suppress certain statements that
he made to the police while he was in custody and after
he had invoked his right to counsel. We reject both of
the defendant’s claims and, therefore, affirm the judg-
ment of conviction.
The following facts and procedural history are rele-
vant to this appeal. The defendant’s conviction stems
from a drive-by shooting that occurred on July 16, 2017,
and resulted in the death of the victim, Jeffrey Worrell,
who had sustained a single gunshot wound to the head.
When he was shot, the victim was sitting at a picnic
bench in a small park located in an area in Hartford
known as the five corners, where Westland Street, Gar-
den Street and Love Lane all intersect. Police officers
who arrived at the scene shortly after the shooting
spoke to witnesses, but none gave a description of the
shooter. Shell casings, however, were recovered from
the scene, and a video surveillance camera installed by
the city of Hartford at the corner of Garden and West-
land Streets captured the shooting. Upon review of the
footage from that camera, the police identified three
vehicles involved in the incident, a blue Honda Accord,
a black Ford Escape, and a white Nissan Altima. The
driver of the Honda Accord was identified as Dominick
Pipkin, who, upon questioning by the police within
hours of the shooting, provided information concerning
the identities of the individuals in both the Nissan
Altima and the Ford Escape. With respect to the occu-
pants of the Ford Escape, Pipkin identified the driver
as Teddy Simpson, and the rear passengers as Jonathan
Vellon and his brother, Osvaldo Vellon, and a person
whose nickname is ‘‘Bama,’’ later identified as the
defendant.2 The police also received information identi-
fying the front seat passenger of the Ford Escape as
Dayquan Shaw.3 In addition, the Vellon brothers, who
admitted that they were present when the shooting
occurred, gave the police information about others
involved in the incident, including the defendant. Early
in the investigation, it became apparent to the police
that a member of a rival gang, and not the victim, was
the likely target of the shooting.
Shortly after the incident, the police identified several
addresses associated with the defendant, including a
former residence in a multiunit apartment building in
New Britain. When detectives from the Hartford Police
Department went to that former residence in New Brit-
ain the day after the shooting, they discovered the Ford
Escape.
On the basis of the foregoing information, the lead
investigator in the case, Sergeant Anthony Rykowski of
the Hartford Police Department, prepared and obtained
arrest warrants for Simpson and the defendant. The
defendant was charged with murder and conspiracy
to commit murder and arrested three days after the
incident, on July 19, 2017. Following the defendant’s
arrest and transportation to police headquarters,
Rykowski questioned the defendant, who made several
incriminating statements.
A jury trial followed,4 at which the state adduced
testimony from several witnesses to the incident,
including Jonathan Vellon. In his testimony, Jonathan
Vellon acknowledged that he had provided the police
with a written statement about the incident the next
day, but he refused to identify anyone else who was in
the car when the shooting occurred. He also testified
that he did not know who was driving the Ford Escape
at the time of the shooting, from where in the car the
gunshots were fired, or who brought the gun into the
car, even though his statement to the police indicated
otherwise. When asked why he was refusing to provide
the names of the individuals in the car, he stated that
he ‘‘just [did not] feel like it.’’ Although he did testify
that he knew the defendant, he denied that the defen-
dant was in the Ford Escape on the day of the shooting,
and he also denied providing any contrary information
to the police. Moreover, he claimed that he did not sign
the statement even though he previously had acknowl-
edged that the signature on the statement was his.
At the conclusion of Jonathan Vellon’s testimony, the
state introduced into evidence his written statement to
the police pursuant to State v. Whelan, 200 Conn. 743,
753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct.
597, 93 L. Ed. 2d 598 (1986).5 That statement provides
in relevant part: ‘‘On Sunday afternoon [on the day of
the shooting], my brother Osvaldo [Vellon] and I . . .
were walking past . . . Flatbush Avenue . . . [when]
I heard someone call my name from inside a car. When
I looked at the car, I noticed [the defendant] in a black
Ford Escape. [The defendant] was sitting in the passen-
ger side rear seat . . . [and] told us to get in the car
[and] so we did. . . . The person driving the Ford
Escape is named Teddy [Simpson]. . . . The front seat
passenger was someone I’ve never seen before . . . .
‘‘Once inside the car, all five of us drove around and
were smoking weed. . . . [Simpson] then pulled up to
a blue Honda Accord and I saw a black male, around
[nineteen to twenty years old] driving the Honda all
alone. . . . I heard [Simpson] and [the defendant] say
let’s shoot the G’s. The G’s are gang members from the
Barbour Street area. I’ve been with the Ave gang for
around three months . . . . The Ave gang is from the
Albany Avenue area.
‘‘The next thing I [knew] [Simpson] was handed a
gun by the driver of the blue Honda Accord and then
[Simpson] passed it to [the defendant]. The gun was a
small black handgun and it looked like the handle was
grayish because it looked old. I heard the driver of the
Honda tell [the defendant] that he wanted him to shoot
the G’s. [Simpson] then drove down the street and [the
defendant] racked the gun back and I saw a bullet fall
inside the car. [The defendant] then held the gun out
the window and shot the gun around three times. I think
the gun jammed once or twice as [the defendant] was
shooting. [Simpson] then sped away and drove to meet
the guy in the blue Honda Accord. . . . [The defendant]
then passed the gun over to [Simpson] who then handed
the gun out the window to the driver of the blue Honda
Accord. [Simpson] then told [the defendant] to drive
so [Simpson] got into the passenger seat, [the defen-
dant] got into the driver’s seat and the tall guy who was
sitting in the passenger seat before walked home. We
sat there for around [twenty] minutes and then [the
defendant] drove the Ford Escape to New Britain and
parked it where the [p]olice found it . . . . [The defen-
dant] used to live at the apartment where the car was
found . . . . Once [the defendant] parked the car, [my
brother] and I walked home to our house . . . .’’ (Inter-
nal quotation marks omitted.) In his written statement,
Jonathan Vellon further stated that he had identified
the defendant from a photographic array shown to him
by the police, that he signed his name on the defendant’s
photograph, and that he was ‘‘100 [percent] sure’’ the
photograph chosen from the array was the defendant,
whom he ‘‘saw shoot from the Ford Escape at the G’s,’’
as he ‘‘was sitting shoulder to shoulder with [the defen-
dant]’’ at the time of the shooting.6 (Internal quotation
marks omitted.)
The state next adduced testimony from Simpson, who
testified pursuant to a plea agreement with the state
related to his involvement in the shooting of the victim.7
Simpson explained that he was associated with the Ave
gang and was involved in the shooting as the driver of
the Ford Escape. He further testified that the other
occupants of the car were Jonathan Vellon, Osvaldo
Vellon, the defendant and Shaw. According to Simpson,
at some point when they were driving around near the
intersection of Garden and Capen Streets, they stopped
to talk with Pipkin, who was operating a blue Honda.
Simpson stated that he was familiar with a picnic spot
in the area known as the five corners, and that, while
driving in that area, they saw a group of kids from the
G’s neighborhood with whom they did not get along.
Subsequently, they met up again with Pipkin, who began
waving a handgun, and Simpson asked Pipkin for the
gun at the defendant’s request because the defendant
had expressed a desire to open fire on the G’s. At first,
Pipkin told Simpson just to drive off but, shortly there-
after, Pipkin handed the gun to Shaw, who gave it to
the defendant. Simpson testified that he did not see the
defendant with the gun in the backseat and did not see
the defendant fire the gun because he was focused on
driving. He also testified that the defendant was not a
member of the Ave gang.
Shaw also testified for the state. He stated that he
was a front seat passenger in the Ford Escape at the
time of the shooting, and he described the other passen-
gers as two Hispanic males and the defendant. He testi-
fied further that, as they were driving around the five
corners area, they saw a group of people in the grassy
area, at which point the defendant stated that they were
from the G’s gang and that he did not like them. Shaw’s
testimony was consistent with that of Simpson with
respect to how they had encountered Pipkin, the fact
that the defendant possessed a gun in the Ford Escape,
and how the shooting took place. Shaw also testified
that, as they were driving away from the scene of the
shooting, the defendant was ‘‘bragging about the inci-
dent’’ and saying, ‘‘I got somebody.’’ Shaw further stated
that the defendant had texted him on the night of the
incident and ‘‘showed no remorse even though he killed
an innocent bystander, he didn’t feel bad about it. It
was like he was joyful of it, like he didn’t care it was
an old man.’’8
Finally, Rykowski testified about certain statements
that he had obtained from Pipkin, Osvaldo Vellon and
the defendant. With respect to Pipkin and Osvaldo Vel-
lon, Rykowski explained that both of them had provided
statements to the police shortly after the incident identi-
fying the defendant as a passenger in the Ford Escape.
Rykowski further testified that he interviewed the
defendant following his arrest on July 19, 2017. Although
the defendant denied any involvement in the shooting,
he did acknowledge that he had been in the Ford Escape
on the day of the shooting. He also told Rykowski that
he did not get along with the ‘‘G’s.’’
Following the conclusion of the evidence,9 the jury
returned a verdict of not guilty on the murder charge
and guilty on the charge of conspiracy to commit mur-
der. The court sentenced the defendant to a term of
twenty years of incarceration, which was to run consec-
utively to a sixteen year sentence he was already serv-
ing.10 This appeal followed. Additional facts and proce-
dural history will be set forth as necessary.
I
The defendant claims, for the first time on appeal,
that his conviction of conspiracy to commit murder is
legally insufficient because the doctrine of transferred
intent does not apply to the crime of conspiracy. Specifi-
cally, he maintains that, because the state’s theory of
the case was that the intended target of the murder
was a member of the rival gang and not the victim, and
because it is legally impossible to conspire to kill an
unintended victim, his conspiracy conviction cannot
stand. He seeks review of his unpreserved claim pursu-
ant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015).11 Although we agree with
the defendant that he is entitled to review of his claim
under Golding, we reject the claim because his conspir-
acy conviction was not predicated on the doctrine of
transferred intent.
The following additional facts are relevant to this
claim. The defendant was charged in a two count infor-
mation with murder in violation of § 53a-54a and con-
spiracy to commit murder in violation of §§ 53a-54a
and 53a-48. The murder charge, set forth in count one,
alleged that, ‘‘on or about July 16, 2017, at approxi-
mately 2 p.m. in the area of Garden and Westland Streets
in Hartford . . . the defendant, while acting with the
intent to cause the death of another person, caused the
death of a third person by discharging a firearm.’’ Count
two, which contained the charge of conspiracy to com-
mit murder, alleged that, ‘‘on or about July 16, 2017, at
approximately 2 p.m. in the area of Garden and West-
land Streets in Hartford . . . the defendant, while act-
ing with the intent that conduct constituting the crime
of murder be performed . . . agreed with one or more
persons to engage in and cause the performance of
such conduct and any one of them committed an overt
act in furtherance of said conspiracy.’’
At trial, the state’s theory with respect to the murder
charge was that the defendant fired the handgun from
inside the vehicle with the intent to kill a member of
the rival gang but, instead, missed and killed the victim.
As noted previously in this opinion, the jury found the
defendant not guilty of that charge. With respect to the
conspiracy to commit murder charge, the jury found
the defendant guilty of conspiring with at least one
other person in the Ford Escape to shoot and kill a
member of the rival gang. On appeal, the defendant
does not challenge the legal or evidentiary sufficiency
of the state’s case with respect to his conviction of
conspiracy to commit murder insofar as the state was
required to prove both that he had entered into an
agreement with at least one other person to murder a
member of the rival gang and that one of the conspira-
tors committed an overt act in furtherance of the con-
spiracy. He claims, rather, that the state’s case was
founded on the doctrine of transferred intent, which,
although concededly applicable to the crime of murder,
does not apply to conspiracy. Consistent with this asser-
tion, the defendant maintains that he could not have
conspired to kill an unintended victim and that, because
the victim of the shooting was unintended, his convic-
tion of conspiracy to commit murder is unlawful. This
claim is unavailing because it rests on a false premise,
namely, that the defendant’s conspiracy conviction was
predicated on a theory of transferred intent.12
The defendant’s claim that his conspiracy conviction
was impermissibly founded on the doctrine of trans-
ferred intent is largely based on the trial court’s jury
charge. We therefore recite the relevant portions of
those instructions, commencing with the court’s charge
on transferred intent. The court explained transferred
intent as follows: ‘‘[I]n considering the evidence pre-
sented and what you find credible, it may establish that
the defendant had the intent to cause the death of one
person and by his actions caused the death of a different
person. Our law is that, when considering intent, as
long as the defendant has the intent to cause the death
of a person and, by his actions, cause[s] the death of
another, that is sufficient to establish the element of
intent.’’13
Thereafter, the court instructed the jury on the mur-
der charge in count one as follows: ‘‘[F]or you to find
the defendant guilty of this charge, the state must prove
the following elements beyond a reasonable doubt. One,
that the defendant had the specific intent to cause the
death of another person. And, two, that, acting with
that intent, the defendant caused the death of a third
person . . . by discharge of a firearm. . . .
‘‘The first element, intent. The first element the [state]
must prove beyond a reasonable doubt [is] that the
defendant had the specific intent to cause the death of
another person. The state must prove beyond a reason-
able doubt the defendant, in causing the death of the
other person, did so with the specific intent to cause the
death of a person; in other words, that the defendant’s
conscious objective was to cause the death of a per-
son. . . .
‘‘Intent, therefore, is intent to achieve a specific
result; in other words, a person’s conscious objective
was to cause the specific result. As defined by law, a
person acts intentionally with respect to the result when
his conscious objective is to cause such result. Now,
the court has previously instructed you on intent and
transferred intent. Those instructions apply in this
section as well.’’ (Emphasis added.)
At the conclusion of its jury instructions on murder,
the court proceeded to instruct the jury on the second
count, conspiracy to commit murder. After reading the
allegations contained in count two, the court recited
the elements of the conspiracy statute, § 53a-48 (a).14
The court then instructed the jury as follows: ‘‘So, for
you to find the defendant guilty of conspiracy in this
count, conspiracy to commit murder, the state must
prove the following elements beyond a reasonable
doubt: one, that the defendant intended to commit the
crime of murder; two, an agreement with one or more
persons to engage in or cause the performance of the
crime of murder; and, three, the commission of an overt
act pursuant to the agreement by one or more of the
persons who made the agreement. . . .
‘‘The first element is that [the] defendant had the
intent that conduct constituting the crime of murder
be performed. The defendant must be proven to have
been actuated by criminal intent. The defendant may
not be found guilty unless the state has proven beyond
a reasonable doubt he had a specific intent to violate
the law and, in this case, intent to commit murder when
he entered into an agreement to engage in conduct
constituting a crime. You will refer to the court’s previ-
ous instructions on intent and transferred intent that
are incorporated here with the same force and effect.
For the count of conspiracy, it is only necessary that
he intended that certain conduct, which, if performed,
would constitute the crime of murder, be performed or
take place.’’ (Emphasis added.)
In explaining the second element—the agreement—
the court again made reference to intent. Specifically,
the court stated in relevant part: ‘‘Remember that I
instructed you that intent relates to the condition of
the mind of the person who commits the act, his purpose
in doing it. . . . That instruction included an instruc-
tion on transferred intent, and that instruction is
incorporated in this section with the same force and
effect.’’ (Emphasis added.)
Relying primarily on the court’s instruction that its
advisement to the jury concerning the meaning of trans-
ferred intent applied to the charge of conspiracy to
commit murder as well as to the murder charge, the
defendant asserts that, in light of that instruction, his
conspiracy conviction was predicated on a theory of
transferred intent. The defendant further maintains that
the transferred intent doctrine is inapplicable to the
crime of conspiracy and, consequently, his conspiracy
conviction is fatally flawed as a matter of law.
We note, preliminarily, that, although the defendant’s
claim on appeal is based on the court’s instructions
regarding transferred intent, the defendant does not
purport to raise a claim of instructional impropriety.
Indeed, in the trial court, the defendant expressly stated
that he had no objection either to the instruction on
conspiracy or to the instruction on transferred intent.
Moreover, any claim of instructional error that the
defendant might have raised on appeal would be
deemed impliedly waived under State v. Kitchens, 299
Conn. 447, 10 A.3d 942 (2011),15 because the record
clearly reflects that defense counsel had ample time to
review the court’s proposed charge and to object to
the portions of the charge at issue and affirmatively
accepted the proposed instructions. The defendant
claims, rather, that his conviction must be reversed
because the jury found him guilty of conspiracy based
on a theory that he agreed to kill an unintended victim,
which, the defendant further contends, is a legal impos-
sibility. In other words, according to the defendant, the
state’s evidence, viewed most favorably to the state,
established conduct by the defendant that simply does
not constitute the crime of conspiracy. Of course, if the
defendant is correct that he was convicted of a crime
that is not cognizable under our law, then his conviction
would be fundamentally incompatible with the fairness
principles underlying the right to due process. See, e.g.,
State v. Toczko, 23 Conn. App. 502, 505, 582 A.2d 769(1990) (defendant’s fundamental constitutional rights
were violated by virtue of his conviction of conspiracy
to commit manslaughter, which is not cognizable
crime).
We agree with the defendant that his claim, though
unpreserved, is reviewable under Golding because the
record is adequate for review of the claim and it is of
constitutional magnitude. The defendant’s claim fails,
however, because he cannot establish that his convic-
tion of conspiracy to commit murder was legally insuffi-
cient in violation of his right to due process.
Before considering the merits of the defendant’s
claim, we first set forth certain general principles gov-
erning the crime of conspiracy. ‘‘To establish the crime
of conspiracy under § 53a-48 . . . it must be shown
that an agreement was made between two or more
persons to engage in conduct constituting a crime and
that the agreement was followed by an overt act in
furtherance of the conspiracy by any one of the conspir-
ators. The state must also show intent on the part of
the accused that conduct constituting a crime be per-
formed.’’ (Internal quotation marks omitted.) State v.
Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). ‘‘While the
state must prove an agreement [to commit murder], the
existence of a formal agreement between the conspira-
tors need not be proved because [i]t is only in rare
instances that conspiracy may be established by proof
of an express agreement to unite to accomplish an
unlawful purpose. . . . [Although] [c]onspiracy can
seldom be proved by direct evidence . . . [i]t may be
inferred from the activities of the accused persons.’’
(Internal quotation marks omitted.) State v. Soyini, 180
Conn. App. 205, 224–25, 183 A.3d 42, cert. denied, 328
Conn. 935, 183 A.3d 1174 (2018).
‘‘Conspiracy is a specific intent crime, with the intent
divided into two elements: (a) the intent to agree or
conspire and (b) the intent to commit the offense which
is the object of the conspiracy. . . . To sustain a con-
viction for conspiracy to commit a particular offense,
the prosecution must show not only that the conspira-
tors intended to agree but also that they intended to
commit the elements of the offense.’’ (Emphasis omit-
ted; internal quotation marks omitted.) State v. Beccia,
supra, 199 Conn. 3–4. ‘‘The state, therefore, in order to
prove the offense of conspiracy to commit murder, must
prove two distinct elements of intent: that the conspira-
tors intended to agree; and that they intended to cause
the death of another person.’’ (Internal quotation marks
omitted.) State v. Mourning, 104 Conn. App. 262, 286–
87, 934 A.2d 263, cert. denied, 285 Conn. 903, 938 A.2d
594 (2007). With due regard for these principles, we
now address the defendant’s contention that his convic-
tion of conspiracy to commit murder is unlawful
because it was founded on the doctrine of trans-
ferred intent.
In the present case, the state did rely on a theory of
transferred intent to prove the murder charge: the state
sought to establish that the defendant, acting with the
intent to kill a rival gang member, killed someone else.
The defendant does not dispute the applicability of that
theory to the crime of murder. Indeed, the murder stat-
ute, § 53a-54a, contemplates scenarios of the kind that
occurred here because the statute expressly provides
that a person commits the crime of murder when, with
the intent to cause the death of one person, he causes the
death of another person. See footnote 1 of this opinion.
The state, however, did not rely on the doctrine of
transferred intent with respect to the conspiracy to
commit murder charge. The conspiracy alleged and
proven by the state was an agreement to kill a rival
gang member, and the overt act proven by the state
was the gunshot intended for that rival gang member.
The conspiracy to commit murder charge was estab-
lished by virtue of that proof and that proof alone.
Although the gunshot that was fired was intended to
kill the rival gang member, the fact that the gunshot,
instead, killed the victim is simply irrelevant for pur-
poses of the conspiracy to commit murder charge. In
other words, with respect to that charge, the state did
not need to prove, and indeed could not have proved,
that the defendant and at least one other person agreed
to kill the actual victim. Rather, as we have explained,
the state merely sought to prove, and did prove, first,
an agreement to kill a rival gang member, and second,
the commission of an overt act in furtherance of that
agreement, specifically, the gunshot that was intended
for the rival gang member but which struck and killed
the victim.
The defendant’s claim is unavailing, then, because it
fails to account for a fundamental difference between
the crime of murder, which, among other things,
requires proof that a person was killed, and the crime
of conspiracy to commit murder, which requires proof
only of an agreement to kill and an overt act in further-
ance of that agreement. Put differently, the conspiracy
charge does not require proof that the object of the
conspiracy, namely, the death of a person, was accom-
plished, nor does it require proof regarding the result
of the overt act committed. As our Supreme Court has
explained: ‘‘The gravamen of the crime of conspiracy is
the unlawful combination and an act done in pursuance
thereof, not the accomplishment of the objective of the
conspiracy. . . . Conspiracy is an inchoate offense the
essence of which is an agreement to commit an unlawful
act. . . . The prohibition of conspiracy is directed not
at the unlawful object, but at the process of agreeing
to pursue that object.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) State v. Bec-
cia, supra, 199 Conn. 3; see also State v. Fox, 192 Conn.
App. 221, 228, 217 A.3d 41 (it is agreement that ‘‘consti-
tutes the conspiracy which the statute punishes’’ (inter-
nal quotation marks omitted)), cert. denied, 333 Conn.
946, 219 A.3d 375 (2019). In the present case, because
the crime of conspiracy to commit murder was com-
pleted when the defendant and one or more coconspira-
tors agreed to kill a rival gang member and a gun was
fired to that end, the defendant’s conspiracy conviction
is legally sound even though the murder charge itself
was predicated on the death of an unintended victim.
Thus, although the murder charge was based on a the-
ory of transferred intent, the charge of conspiracy to
commit murder was not.
Furthermore, it is apparent that the court’s instruc-
tion to the jury that the doctrine of transferred intent
applied to the conspiracy to commit murder charge as
well as to the murder charge did not serve to transform
the state’s theory of the conspiracy charge into one
predicated on transferred intent. Notwithstanding the
court’s instruction on transferred intent, that doctrine
simply bore no relevance to the conspiracy charge
because the state’s theory with respect to that charge,
in contrast to its theory with respect to the murder
charge, had nothing to do with transferred intent. For
purposes of the conspiracy charge, it made no differ-
ence whether the rival gang member was killed—as
had been planned—or whether, as actually occurred,
the victim of the shooting was an unintended third
party. As we have explained, all that was necessary for
the state to establish the crime of conspiracy was proof
that the defendant agreed with one or more other per-
sons to cause the death of the rival gang member and
that an overt act was committed in furtherance of that
agreement, and the defendant does not challenge the
adequacy or validity of the state’s proof in that regard.
In such circumstances, the court’s instruction to the
jury concerning the applicability of the doctrine of
transferred intent to the conspiracy charge was, at most,
mere surplusage that had no bearing on the nature of
the state’s case against the defendant or on the jury’s
consideration of whether the state had proven its case.
For these reasons, the defendant’s conviction of con-
spiracy to commit murder was not predicated on the
doctrine of transferred intent. Accordingly, the defen-
dant cannot prevail on his claim of a due process viola-
tion stemming from his conviction of an offense that
is not legally cognizable in this state, and his claim,
thus, fails under the third prong of Golding.
II
The defendant next claims that the court improperly
denied his motion to suppress certain statements he
made to the police during a custodial interrogation after
he had invoked his constitutional right to counsel. He
contends that the police impermissibly failed to honor
his request for an attorney and that any statements he
made thereafter were the result of improper questioning
by the police in violation of his fifth amendment rights
as safeguarded by Miranda v. Arizona, 384 U.S. 436,
444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and its
progeny. He also claims, alternatively, that his state-
ments should have been suppressed because they were
the product of police coercion and, therefore, not made
following a knowing and voluntary waiver of his
Miranda rights. We disagree.
The following facts and procedural history are neces-
sary to our resolution of the defendant’s claims.16 Three
days after the shooting, the defendant was located by
the police and brought to the Hartford Police Depart-
ment, where he was taken to an interview room, which
was equipped with a video camera, for questioning. The
video recording of the interview commenced at 2:27
p.m., at which time the defendant was alone in the
room. Approximately thirty minutes later, Rykowski
and another detective entered the room with the defen-
dant’s father, and Rykowski proceeded to review a
parental consent form with the father,17 followed by his
review of a waiver of rights form with the defendant.
Both the defendant and his father signed their respec-
tive forms. Subsequently, the police and the defendant’s
father left the interview room, and at 3:20 p.m., Rykow-
ski returned to the room with his partner, Detective
Jeffrey Pethigal,18 at which time they began questioning
the defendant. At 3:35 p.m., Rykowski told the defen-
dant that he was under arrest for murder and summa-
rized the evidence that the police had against him. After
that, Rykowski and Pethigal again departed the inter-
view room until 4:26 p.m., when Pethigal returned with
the defendant’s father and questioned the defendant
about his cell phone.
The following colloquy then transpired between the
defendant and Pethigal:
‘‘[The Defendant]: But is there like any way, cause
this is a serious matter, and I feel like just so I’m ok
with my like future and stuff, cause I don’t know [what]
the outcome of this [is] gonna be, is there any way I
could get like a lawyer in here, so I know what’s going
on ‘n stuff?
‘‘[Pethigal]: What’s that?
‘‘[The Defendant]: ‘Cause I don’t really understand
like what’s going on and like and that’s why I was saying
I wanted my father in here.
‘‘[Pethigal]: You can talk to your father, it’s whatever
you want to do.
‘‘[The Defendant]: Could we have a lawyer in here,
‘cause this is a serious matter.
‘‘[Pethigal]: Yeah, you have your rights waiver, right?
‘‘[The Defendant]: Huh?
‘‘[Pethigal]: The rights waiver you signed.
‘‘[The Defendant]: Um-hmm. It said I could have a law-
yer.
‘‘[Pethigal]: Exactly, you understood it.
‘‘[The Defendant]: Could you have—could you have
a lawyer come in here?
‘‘[Pethigal]: Ok . . . . If that’s what you want?
‘‘[The Defendant]: Yeah, because it don’t wanna . . .
I don’t wanna, you get what I’m sayin? This is a seri-
ous matter.
‘‘[Pethigal]: Alright, hold on . . . .’’ (Emphasis
added.)
Thereafter, Pethigal ceased questioning and left the
interview room, followed by the defendant’s father. Sev-
eral minutes later, Sergeant Rivera19 opened the door
to the room and told the defendant to ‘‘come on,’’ to
which the defendant replied, ‘‘where am I going?’’
Rivera explained to the defendant that he was taking
him to the booking room to be processed because he
was under arrest. When the defendant expressed confu-
sion, Rivera told the defendant that he would have Peth-
igal and Rykowski explain the charges to him. Shortly
thereafter, while Rivera and the defendant were still in
the interview room, Pethigal returned and the following
colloquy took place:
‘‘[Pethigal]: Did you not understand us?
‘‘[The Defendant]: You all said that . . . somebody
said I did that. I didn’t do anything.
‘‘[Pethigal]: You are under arrest for murder.
‘‘[The Defendant]: How [am I] under arrest for . . .
‘‘[Pethigal]: Listen, you asked for a lawyer, I can’t
speak to you, ok?
‘‘[The Defendant]: What . . . did I do?
‘‘[Pethigal]: Listen, I would love to discuss this more
but you asked for a lawyer and I can’t speak to you.
‘‘[Rivera]: You have to stand up, come on.
‘‘[The Defendant]: How am I getting arrested for mur-
der . . . .
‘‘[Rivera]: You requested an attorney, we cannot dis-
cuss this further with you. . . . You had your opportu-
nity to speak to us. You requested a lawyer. We are
done talking with you, sir.
‘‘[The Defendant]: If I want to talk to you guys, can
we talk about it?’’
Neither Pethigal nor Rivera responded directly to the
defendant’s question, instead directing him to stand up
and put his hands behind his back.
Thereafter, the defendant was escorted out of the
interview room for booking. According to testimony by
Rykowski at the hearing on the motion to suppress,
when Rivera and the defendant were both in the book-
ing room, the defendant told Rivera that he wanted
to speak with Rykowski. Because there was no video
camera in the booking room, the defendant’s statement
to Rivera was not recorded.
Upon completion of the booking process, the defen-
dant was returned to the interview room. Rykowski
returned to the room, as well, and asked the defendant
to clarify whether he wanted to speak to him, to which
the defendant responded, ‘‘I do, ‘cause I didn’t even do
anything.’’ Rykowski continued to question the defen-
dant to make sure that he wanted to speak further
to the police without an attorney present. After that
exchange, the defendant’s father entered the interview
room, and Rykowski again explained the waiver of
rights and parental consent forms to the defendant and
his father, respectively. The defendant’s father again
signed a parental consent form, and the defendant com-
pleted and signed another waiver of rights form. Rykow-
ski thereafter read the defendant his Miranda rights
for a second time, and the defendant initialed a form
indicating that he had been advised of his rights and
understood them. Thereafter, the interrogation of the
defendant recommenced, and the defendant eventually
admitted to being in the Ford Escape on the day of
the shooting, and he gave the police a signed, written
statement to that effect. He also told Rykowski that the
intended target of the shooting was Deandre Johnson,
a rival gang member.
The defendant filed a motion in advance of trial seek-
ing to suppress the statements he made to the police
following his invocation of his right to counsel but after
he told the police that he wanted to continue to talk
with them.20 In support of his motion, the defendant
argued that the police had improperly induced him to
speak despite his expressed desire to have counsel pres-
ent and that the efforts by the police to do so had
rendered his Miranda waiver involuntary. Following
a hearing, the court denied the defendant’s motion.
Expressly finding Rykowski to be a credible witness,
the court concluded that the defendant had waived
his rights knowingly, intelligently and voluntarily. The
court further found that the defendant himself had ‘‘ini-
tiated the continued communication with the police’’
and that ‘‘[t]here [was] no evidence . . . that would
indicate that the defendant’s will was overborne and
the decision to speak to the police was anything other
than the result of his free, considered, and uncon-
strained choice.’’
Subsequently, at trial, the state adduced testimony
from Rykowski that the defendant had acknowledged
that he was in the Ford Escape on the day of the shoot-
ing. Rykowski further testified that he believed that the
defendant also told him the name of the intended target
of the shooting. On appeal, the defendant contends
that the trial court incorrectly refused to suppress the
statements at issue, and he renews the arguments that
he made in the trial court in support of his claim. The
state maintains that the court properly denied the defen-
dant’s motion to suppress his statements and, further,
that any possible impropriety was harmless beyond a
reasonable doubt. For the reasons that follow, we agree
with the state.
Preliminarily, however, we set forth our standard
of review and certain legal principles that govern our
consideration of the defendant’s claims. The standard
of review of the trial court’s denial of the defendant’s
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
customary deference to the trial court’s factual findings
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 in the facts set [forth] in the memorandum
of decision . . . .’’ (Internal quotation marks omitted.)
State v. Gonzalez, 302 Conn. 287, 295–96, 25 A.3d 648(2011).
With respect to the law applicable to the defendant’s
claims challenging the trial court’s denial of his motion
to suppress, ‘‘[t]he [f]ifth [a]mendment [to] the United
States [c]onstitution provides: ‘[n]o person . . . shall
be compelled in any criminal case to be a witness
against himself’ . . . . To protect this constitutional
right against self-incrimination, the Supreme Court’s
landmark decision in Miranda v. Arizona [supra, 384
U.S. 444] established certain ‘procedural safeguards’
that officers must comply with to subject a suspect
to custodial interrogation.’’ (Citation omitted.) United
States v. Abdallah, 911 F.3d 201, 209–10 (4th Cir. 2018).
Among them, an accused has the right to have an attor-
ney present during custodial police interrogation;
Miranda v. Arizona, supra, 444; and if the accused
requests an attorney, ‘‘interrogation must cease until
an attorney is present.’’ Id., 474. ‘‘It is well established
that the prosecution 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. [Id., 444.] Two
threshold conditions must be satisfied in order to
invoke the warnings constitutionally required by
Miranda: (1) the defendant must have been in custody;21
and (2) the defendant must have been subjected to
police interrogation.’’ (Footnote added; internal quota-
tion marks omitted.) State v. Gonzalez, supra, 302
Conn. 294.
‘‘A defendant in custody is subject to interrogation
not 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 atten-
dant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response
from the suspect. . . . [W]hether a defendant was sub-
jected to interrogation . . . involves a . . . two step
inquiry in which the court must determine first, the
factual circumstances of the police conduct in question,
and second, whether such conduct is normally atten-
dant to arrest and custody or whether the police should
know that it is reasonably likely to elicit an incriminat-
ing response.’’ (Citations omitted; internal quotation
marks omitted.) Id., 295; see also Rhode Island v. Innis,
446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980)
(exempting from definition of interrogation words and
actions that are ‘‘normally attendant to arrest and cus-
tody’’).
In Edwards v. Arizona, 451 U.S. 477, 484, 101 S. Ct.
1880, 68 L. Ed. 2d 378 (1981), the United States Supreme
Court amplified the safeguards that must be afforded
an accused who requests counsel during custodial inter-
rogation. Specifically, the court in Edwards held that,
‘‘when an accused has invoked his right to have counsel
present during custodial interrogation, a valid waiver
of that right cannot be established by showing only
that he responded to further police-initiated custodial
interrogation even if he has been advised of his rights.
[The court] further [held] that an accused . . . having
expressed his desire to deal with the police only through
counsel, is not subject to further interrogation by the
authorities until counsel has been made available to
him, unless the accused himself initiates further com-
munication, exchanges, or conversations with the
police.’’ (Footnote omitted.) Id., 484–85. With these
principles in mind, we turn to the defendant’s claims.
A
The defendant first claims that the police violated
his fifth amendment right to counsel by failing to honor
his invocation of his right to counsel by questioning him
after he had done so. More specifically, the defendant
contends that, insofar as he initiated communication
with the police after his earlier request for counsel,
he did so only because the police had impermissibly
induced him to speak to them. He therefore argues that
he is entitled to suppression of the statements he made
to the police after he resumed talking to them. We are
not persuaded by the defendant’s claim.
As we have explained, after the defendant was
brought to the police station, he was informed of his
Miranda rights, signed a waiver of rights form, and was
questioned by the police. At approximately 4:28 p.m.,
the defendant asked: ‘‘[I]s there any way I could get
like a lawyer in here?’’ That question was followed by
two more requests for counsel, made in close succes-
sion, in which he asked, ‘‘[c]ould we have a lawyer in
here?’’ and ‘‘could you have a lawyer come in here?’’
Under the fifth amendment, although ‘‘police officers
conducting a custodial interrogation have no obligation
to stop and clarify an ambiguous invocation by the
defendant of his right to have counsel present . . .
they must cease interrogation . . . upon an objectively
unambiguous, unequivocal invocation of that right.’’
State v. Purcell, 331 Conn. 318, 320–21, 203 A.3d 542(2019). For purposes of this appeal, there is no dispute
that the defendant’s statements constituted a suffi-
ciently clear and unequivocal request for an attorney
that required a halt to all questioning. Although the
defendant contends that Pethigal’s immediate response
to the defendant’s invocation of his right to counsel—
Pethigal reminded the defendant that he previously had
waived that right—was designed to prompt the defen-
dant to continue speaking to the police, no actual ques-
tioning took place and the defendant made no incrimi-
nating statements until several hours later, after he had
reinitiated communication with the police. The crux of
the defendant’s claim, therefore, is that he resumed
speaking to the police only because the police them-
selves induced him to do so in derogation of his right
to counsel.
As noted previously, under Edwards, once a defen-
dant has requested counsel, the police may not question
him further until counsel is present unless the accused
himself initiates further communication with the police.
Edwards v. Arizona, supra, 451 U.S. 484–85. In Smith
v. Illinois, 469 U.S. 91, 105 S. Ct. 490, 83 L. Ed. 2d 488(1984), the United States Supreme Court clarified the
rule in Edwards, stating: ‘‘[The] rigid prophylactic rule
[set forth in Edwards] . . . embodies two distinct
inquiries. First, courts must determine whether the
accused actually invoked his right to counsel. . . . Sec-
ond, if the accused invoked his right to counsel, courts
may admit his responses to further questioning only on
finding that he (a) initiated further discussions with the
police, and (b) knowingly and intelligently waived the
right he had invoked.’’ (Citations omitted; internal quo-
tation marks omitted.) Id., 95. The court in Smith fur-
ther explained: ‘‘Edwards set forth a bright-line rule that
all questioning must cease after an accused requests
counsel. . . . In the absence of such a bright-line prohi-
bition, the authorities through badger[ing] or overreach-
ing—explicit or subtle, deliberate or unintentional—
might otherwise wear down the accused and persuade
him to incriminate himself notwithstanding his earlier
request for counsel’s assistance.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Id., 98. Thus, ‘‘[w]hen officers fail to scrupulously honor
a suspect’s invocation of the right to counsel, the sus-
pect’s subsequent waiver of that right—and any confes-
sion that follows—is presumptively invalid.’’ (Internal
quotation marks omitted.) Rodriguez v. McDonald, 872
F.3d 908, 926 (9th Cir. 2017). Our Supreme Court has
explained that ‘‘[t]he initiation of conversation includes
inquiries that can be fairly said to represent a desire
on the part of an accused to open up a more generalized
discussion relating directly or indirectly to the investiga-
tion.’’ (Internal quotation marks omitted.) State v.
Canales, 281 Conn. 572, 591, 916 A.2d 767 (2007). For
example, in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.
Ct. 2830, 77 L. Ed. 2d 405 (1983), the United States
Supreme Court held that the defendant initiated further
conversation with the police when he asked, ‘‘ ‘[w]ell,
what is going to happen to me now?’ ’’ Id., 1045; see
also State v. Hafford, 252 Conn. 274, 294, 746 A.2d 150(defendant’s question concerning what would happen
to him next constituted initiation under Edwards), cert.
denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89(2000).
Because the inquiry required by the defendant’s claim
is necessarily fact specific, we set forth the facts and
circumstances relevant to our resolution of the claim.
The video recording of the defendant’s interview with
the police reveals that he invoked his right to have
counsel present at 4:28 p.m. and that, following a brief
exchange with Pethigal, all questioning ceased and
Pethigal left the interview room at 4:29 p.m. Thereafter,
commencing at 5:05 p.m., the defendant had a brief
conversation with Rivera during which the defendant
expressed his concern as to why he was being taken
to the booking room, and Rivera and Pethigal explained
that they could not speak with him because he had
invoked his right to counsel. At 5:08 p.m., the defendant
was placed in handcuffs and taken out of the room to
be processed.
At the hearing on the motion to suppress, Rykowski
testified that Rivera had informed him that, when the
defendant ‘‘was being processed, he expressed his
desire to continue to talk to me. So, once the processing
of [the defendant] was complete . . . I asked that he
be put back in that interview room . . . to confirm the
information that . . . Rivera had given [to] me.’’ As we
have indicated, the defendant’s overture to Rivera was
not recorded.
At 5:25 p.m., Rykowski reentered the interview room
and asked the defendant, who, by then, had been
returned to that room, to clarify whether he wanted to
speak with the police again. The following colloquy
took place:
‘‘[Rykowski]: Deykevious, I just want to make sure I
understand, do you want to talk to us again right now?
‘‘[The Defendant]: I do ‘cause I didn’t even do any-
thing. I don’t understand why you guys are saying that
I murdered someone. I didn’t murder anyone.
‘‘[Rykowski]: Ok, so, as I mentioned before, you asked
about an attorney before.
‘‘[The Defendant]: Only because I was scared. This
is serious.
‘‘[Rykowski]: Ok, I just wanna understand. Do you
want to talk to us right now, without an attorney?
‘‘[The Defendant]: If it helps clear stuff up.
‘‘[Rykowski]: I mean, obviously, I want to get your
side of this.
‘‘[The Defendant]: But listen, if I could talk to you
guys and you guys can see that I really have nothing
to do with this, yes I will talk to you. My dad can clarify
everything that I’ve been doing.
‘‘[Rykowski]: No problem. I want to talk to you, ok?
‘‘[The Defendant]: . . . I just turned eighteen yester-
day, this is my life, I’m trying to do good and now
everything messes up.
‘‘[Rykowski]: Right . . . let me bring your father
back in, we gotta go over those forms again, alright?
‘‘[The Defendant]: Ok.
‘‘[Rykowski]: If you want to, I’m not pushing you to
talk to me.
‘‘[The Defendant]: I want to cause I don’t wanna go
to jail for something I didn’t do.’’
Following that brief discussion, Rykowski explained
that he would be readvising the defendant of his
Miranda rights. At 5:38 p.m., those rights were read to
him again, and he reviewed and signed the waiver of
rights form. After that, interrogation resumed.
On the basis of Rykowski’s testimony, which the
court expressly credited, and the court’s review of the
video recording of the defendant’s police interview, the
court found that, ‘‘[w]hen the defendant [was] pre-
sented for booking, he indicate[d] to . . . Rivera that
he [wanted] to speak with the detectives. This informa-
tion [was] brought to . . . Rykowski, who question[ed]
the defendant about the request. The defendant indi-
cate[d] that he [did want to talk] . . . if it would help.
. . . Rykowski continue[d] to inquire about his desire
to speak without a lawyer present. The defendant [was]
again advised of his Miranda rights and waive[d] them.’’
The court further stated: ‘‘The evidence indicates that
[when] a lawyer was requested, questioning by the
police ceased. The defendant requested further discus-
sion, first with the officer [who] took him to booking
and then to . . . Rykowski in the interview room and
recorded on state’s exhibit 1. Initiation can be said to
represent a desire by a suspect to open up a more
generalized discussion related to the investigation. . . .
The court finds that the defendant initiated the contin-
ued communication with the police.’’
We conclude that the record fully supports the court’s
finding that the defendant initiated further communica-
tion with the police of his own accord. Although the
defendant’s discussion with Rivera during the booking
process was not recorded, the court found credible
Rykowski’s testimony that the defendant told Rivera
that he wanted to speak with the police notwithstanding
his earlier invocation of his right to counsel, and we will
not second-guess the court’s credibility determination.
See State v. Shin, 193 Conn. App. 348, 359, 219 A.3d
432 (‘‘[b]ecause it is the sole province of the trier of
fact to assess the credibility of witnesses, it is not our
role to second-guess such credibility determinations’’
(internal quotation marks omitted)), cert. denied, 333
Conn. 943, 219 A.3d 374 (2019). Indeed, the defendant
does not challenge the accuracy or truthfulness of
Rykowski’s testimony regarding the defendant’s con-
versation with Rivera in the booking room, which
plainly established that the defendant had decided to
resume speaking to the police without counsel present.
Nor does he contest that the statements he made to
Rykowski in the interview room confirm those that he
had made only moments before to Rivera. See United
States v. Carpentino, 948 F.3d 10, 22 (1st Cir. 2020) (‘‘a
suspect opens the door to further questioning if his
comments ‘evince . . . a willingness and a desire for
a generalized discussion about the investigation’ ’’); see
also Oregon v. Bradshaw, supra, 462 U.S. 1045–46 (no
Edwards violation when accused initiated further con-
versation with police by inquiring as to what would be
happening to him, which evinced ‘‘willingness and a
desire for a generalized discussion about the investiga-
tion . . . [and] was not merely a necessary inquiry aris-
ing out of the incidents of the custodial relationship’’).
It is the defendant’s position, nevertheless, that the
conduct of the police just prior to the defendant’s depar-
ture from the interview room to be booked and immedi-
ately after he was returned to the interview room sup-
ports his claim that ‘‘the officers should have known
their actions and statements, which occurred after Peth-
igal left the room, were likely to get him to talk without
an attorney.’’ Specifically, he points to the facts that
the police removed his father from the room and left
the defendant alone there for thirty minutes without
providing him with any means to contact an attorney;
the officers made statements suggesting that the ‘‘defen-
dant could have helped himself if he spoke to them,
but because he [had] asked for an attorney, they were
booking him for murder’’;22 and the officers’ statements
suggested that the defendant’s situation could well
improve if he spoke with the police at that time. The
defendant further alleges that ‘‘[t]heir persistent state-
ments that they needed to talk to him coupled with
confronting him with the evidence against him undoubt-
edly wore [him] down until he agreed to talk without
an attorney.’’ According to the defendant, under these
circumstances, the court incorrectly concluded that the
defendant knowingly and voluntarily initiated further
communication with the police. We are not persuaded
by the defendant’s argument.
First, the defendant has provided no authority for
the proposition that the officers were required to pro-
vide him with an attorney or a means to contact one
during the thirty minutes he was left alone in the inter-
view room. Indeed, the defendant did not ask the police
for permission to contact anyone, and his father was
at the police station and had visited with the defendant.
Moreover, the record does not bear out the defendant’s
contention of persistent statements by the officers that
they wanted to talk to the defendant, and the brief
outline of the incriminating evidence that the police
gave the defendant was made in response to a question
from the defendant himself as to why he was being held
for murder.
The defendant’s reliance on State v. Gonzalez, supra,302 Conn. 287, and Martinez v. Cate, 903 F.3d 982 (9th
Cir. 2018), to support his claim that the statements of the
police constituted interrogation is misplaced because
those cases are distinguishable from the present case.
In Gonzalez,23 our Supreme Court held that the state-
ment of a police sergeant to the defendant, who was
in custody but had not been advised of his Miranda
rights, ‘‘that it was the defendant’s opportunity to tell
his side of the story was the functional equivalent of
interrogation because the police should have known
that the phrase was reasonably likely to invite the defen-
dant to respond by making possibly incriminating state-
ments.’’ State v. Gonzalez, supra, 299. The court in Gon-
zalez concluded that ‘‘at the onset of the interview the
police improperly subjected the defendant to custodial
interrogation without the benefit of Miranda warn-
ings’’; (emphasis omitted) id., 301; and that the defen-
dant’s ‘‘request to remain silent was not scrupulously
honored because no steps were undertaken to conclude
the interrogation or belatedly advise the defendant of
his Miranda rights.’’ Id., 302. In contrast, in the present
case, the defendant was informed of his Miranda rights
when the interview commenced and signed a waiver
of rights form, and the police stopped questioning him
after he invoked his right to counsel just prior to being
removed from the interview room for booking.
Martinez is similarly inapposite to the present case.
In Martinez, after the petitioner had requested that an
attorney be present during his questioning by the police
regarding a shooting incident, a detective stated: ‘‘All I
wanted was your side of the story. That’s it. O[k]. So,
I’m pretty much done with you then. Um, I guess I don’t
know another option but to go ahead and book you.
O[k]. Because . . . [you’re] going to be booked for
murder because I only got one side of the story. O[k].’’
(Footnote omitted; internal quotation marks omitted.)
Martinez v. Cate, supra, 903 F.3d 988. The United States
Court of Appeals for the Ninth Circuit held that the
detective’s statements constituted interrogation
because the detective, by virtue of those statements,
suggested that the petitioner might not be charged if
he spoke to the police and gave them his side of the
story. Id., 994–95. Accordingly, the detective’s state-
ments were ‘‘ ‘reasonably likely to elicit an incriminat-
ing response.’ ’’ Id., 995.
In the present case, the defendant was informed at
3:35 p.m., while he was being interviewed and long
before he invoked his right to counsel, that he was
under arrest for murder. Consequently, this case does
not involve a situation in which the police suggested
that the defendant was being arrested and booked only
because he would not talk to them without an attorney.24
See Rodriguez v. McDonald, supra, 872 F.3d 924 (‘‘by
suggesting to [the petitioner] that he would be immi-
nently charged with murder but that cooperation would
result in more lenient treatment from the court, the
probation office, and from the police themselves, the
officers ‘effectively told [the petitioner] he would be
penalized if he exercised rights guaranteed to him under
the [c]onstitution of the United States’ ’’). On the con-
trary, in the present case, the court expressly found
that ‘‘there [was] no evidence . . . that there are any
police tactics designed to deflect the defendant from
clearly invoking his right to counsel . . . .’’
We conclude that the record supports the court’s
findings with respect to the officers’ statements, which
must be examined in the context in which they were
made. When the defendant was informed that he was
under arrest and about to be booked for murder, he
became very upset, started crying, stated that he didn’t
do anything wrong and asked why he was being
arrested. In response to the defendant’s questions, he
was informed that, because he had requested an attor-
ney, the police could no longer speak with him. Within
a very short period of time, at 5:08 p.m., he was placed
in handcuffs and taken out of the interview room for
booking. Only after this break in questioning did the
defendant initiate further communication with the
police, telling them that he again wanted to speak to
them. See Martinez v. Cate, supra, 903 F.3d 997 (‘‘[i]n
every other case where the Supreme Court has held
that a defendant initiated the communication with the
police, there was some break in questioning’’). The
defendant’s claim, which essentially ignores his own
statements to the police, is unavailing.25
B
We next must determine whether the defendant’s
second waiver of his right to counsel was valid because
he relinquished that right knowingly, intelligently, and
voluntarily. The defendant contends that, even if he
initiated the conversation with the police, his subse-
quent statement acknowledging that he was in the Ford
Escape on the day of the shooting should have been
suppressed because it was the product of police coer-
cion and, consequently, not made knowingly and volun-
tarily. We disagree.
‘‘Pursuant to the fifth and fourteenth amendments to
the United States constitution, a statement made by a
defendant during custodial interrogation is admissible
only upon proof that he . . . waived his rights [under
Miranda] . . . . To be valid, a waiver must be volun-
tary, knowing and intelligent. . . . The state has the
burden of proving by a preponderance of the evidence
that the defendant voluntarily, knowingly and intelli-
gently waived his Miranda rights. . . . Whether a pur-
ported waiver satisfies those requirements is a question
of fact that depends on the circumstances of the particu-
lar case. . . . Although the issue is therefore ultimately
factual, our usual deference to fact-finding by the trial
court is qualified, on questions of this nature, by the
necessity for a scrupulous examination of the record
to ascertain whether such a factual finding is supported
by substantial evidence. . . .
‘‘Whether the defendant has knowingly and intelli-
gently waived his rights under Miranda depends in part
on the competency of the defendant, or, in other words,
on his ability to understand and act upon his constitu-
tional rights.’’ (Citations omitted; internal quotation
marks omitted.) State v. Fernandez, 52 Conn. App. 599,
610, 728 A.2d 1, cert. denied, 249 Conn. 913, 733 A.2d
229, cert. denied, 528 U.S. 939, 120 S. Ct. 348, 145 L.
Ed. 2d 272 (1999). ‘‘In considering the validity of a
waiver, we look to the totality of the circumstances of
the claimed waiver. . . . Factors used to assess the
totality of the circumstances include the age of the
accused, the extent of his education, evidence concern-
ing advisement of constitutional rights and the length
and nature of the interrogation.’’ (Citation omitted;
internal quotation marks omitted.) State v. Miller, 137
Conn. App. 520, 531, 48 A.3d 748, cert. denied, 307 Conn.
914, 54 A.3d 179 (2012). With respect to voluntariness,
the ‘‘test . . . is whether an examination of all the cir-
cumstances discloses that the conduct of law enforce-
ment officials was such as to overbear [the accused’s]
will to resist and bring about confessions not freely
self-determined . . . .’’ (Internal quotation marks omit-
ted.) State v. Azukas, 278 Conn. 267, 290, 897 A.2d 554(2006). In other words, ‘‘[a] statement is voluntary if it
is the product of an essentially free and unconstrained
choice by its maker . . . .’’ (Citation omitted; internal
quotation marks omitted.) State v. Fernandez, supra,
612.
In finding that the defendant made a knowing, intelli-
gent and voluntary waiver of his rights, the court exam-
ined the totality of the circumstances and found as
follows: ‘‘[T]he defendant was eighteen years [old], he
had been through the eleventh grade, [and he] was able
to read and write. There was no indication that the
defendant was under the influence of any type of sub-
stance, be it alcohol, narcotics, or that he was in any
other way impaired. He was advised of his rights not
once, but twice, and each time he initialed each of the
rights acknowledging that right, and then finally signed
off at the end indicating he was willing to speak with
the officers.
‘‘There was no evidence of threats or physical force
to coerce him to waive his rights or to make a statement.
In fact, the entire tenor of the interview [of] the defen-
dant was completely conversational and generally
lacked confrontation. The defendant had his father
present the two times that he was advised of his rights
and waived them. His father gave parental consent on
both occasions. The evidence established that he under-
stood those rights from his own comment. He asked if
it was possible to get a lawyer the first time. It was the
exercise of those rights which leads the court to infer
that he understood them.’’ The court further noted that
the defendant had prior experience with law enforce-
ment, such that he was not ‘‘a novice to the advisement
process,’’ and that, even though he was emotional,
‘‘there [was] no evidence that his emotion prevented
him from understanding his rights.’’
The court also examined other factors, stating:
‘‘[T]here was no evidence presented that the defendant
was lacking in intelligence or suffered from a mental
deficiency, or that intellectual limitations influenced his
judgment at the time he was with . . . Rykowski and
Pethigal. . . . There was nothing in the evidence for
the court to conclude that the defendant was sleep
deprived or in need of food or bathroom relief. The
record indicates [that] the defendant was given drink,
offered food, and [given the] opportunity to make bath-
room visits. During the time that [the defendant] was
being interviewed by . . . Rykowski, there was no indi-
cation [that] the defendant was subjected to any
exhausting or incessant questioning or treatment.’’ The
court concluded that there was nothing in the record
to substantiate the claim that the police had overborne
the defendant’s will or that his statements were not
otherwise the product ‘‘of his free, considered, and
unconstrained choice.’’ Accordingly, the court rejected
the defendant’s claim that his waiver was involuntary
because it was based on police pressure, intimidation
or manipulation.
We agree with the state that, under the totality of the
circumstances, there is substantial evidence to support
the court’s finding that the defendant’s waiver of his
Miranda rights was voluntary and intelligent, as
required by Edwards. The record shows that the defen-
dant twice signed a waiver of rights form after being
advised of his Miranda rights. See State v. Miller, supra,
137 Conn. App. 530 (‘‘[a] defendant’s express written
and oral waiver is strong proof that the waiver is valid’’
(internal quotation marks omitted)). Moreover, our
careful examination of the record reveals that it sup-
ports the court’s determination that there was no show-
ing that the police threatened the defendant or
employed other coercive or improper tactics to obtain
the waiver. See State v. Madera, 210 Conn. 22, 49–50,
554 A.2d 263 (1989) (‘‘court correctly factored into its
determination of the Miranda issue that there was ‘no
evidence that the defendant was in any way threatened,
intimidated, coerced or abused’ ’’).
We disagree with the defendant’s argument that the
fact that he had just turned eighteen years old the day
before the interrogation requires a different conclusion.
As the court found, the defendant had an eleventh grade
education, could read and write, was not impaired in
any way, signed two waiver of rights forms after having
been informed, twice, of his Miranda rights, and, after
previously having agreed to speak with police, asserted
his right to counsel. His assertion of his right to counsel,
after having been advised of his Miranda rights the
first time, was a clear indication that he understood
those rights. See State v. Mercer, 208 Conn. 52, 71, 544
A.2d 611 (1988) (‘‘[W]e have held that the assertion of
the right to remain silent after an initial willingness to
speak with police is a strong indication that the defen-
dant understood his rights. . . . The initial invocation
of the right to counsel similarly serves to demonstrate
that a defendant acted knowingly and intelligently in
subsequently deciding to waive that right.’’ (Citation
omitted; internal quotation marks omitted.)); Pickens
v. Gibson, 206 F.3d 988, 995 (10th Cir. 2000) (‘‘[p]etition-
er’s initial refusal to make a statement and his request
for an attorney indicate he ‘understood . . . both the
nature and consequences of his right to remain silent
and his right to counsel’ ’’); United States v. Velasquez,
885 F.2d 1076, 1087 (3d Cir. 1989) (‘‘[the defendant]
evidently understood the import of the Miranda warn-
ings . . . because she invoked her right to counsel
[one-half hour] before she made her incriminating state-
ments’’), cert. denied, 494 U.S. 1017, 110 S. Ct. 1321,
108 L. Ed. 2d 497 (1990); see also State v. Fernandez,
supra, 52 Conn. App. 611 (waiver was not invalid when
defendant ‘‘was eighteen years old at the time of the
incident . . . had completed the tenth grade, [and] tes-
tified that he knew how to read and write English’’).
We also are not persuaded by the defendant’s con-
tention that the court was required to find that his will
was overborne because the police failed to contact a
lawyer for him and, for a period of time, left him alone in
the interview room, separated from his father. Although
the surroundings and circumstances of the defendant’s
interview by the police—including the fact that he knew
that he was being arrested and booked for murder—
were hardly comfortable, that simply does not mean
that the defendant necessarily was unable to decide
for himself, in an informed and unconstrained manner,
whether to resume speaking to the police without a law-
yer.
We therefore conclude, in light of all of the relevant
facts adduced at the suppression hearing, that the state
has met its burden of demonstrating a knowing, intelli-
gent and voluntary waiver by the defendant of his
Miranda rights. See United States v. Carpentino, supra,
948 F.3d 26 (knowing and voluntary waiver of Miranda
rights by defendant when he initiated second phase of
custodial interview, was told by troopers that ques-
tioning would stop if he wanted to talk with his lawyer,
troopers read defendant his Miranda rights twice, and
defendant confirmed that he understood those rights,
signed waiver of rights form and agreed to speak with
troopers). Accordingly, the defendant has not estab-
lished that he was entitled to have his statements
excluded due to police coercion or intimidation.
C
Finally, the state argues that, even if a violation of
the defendant’s Miranda rights had occurred, any error
in the court’s admission of Rykowski’s testimony
regarding the defendant’s acknowledgment that he was
in the Ford Escape on the day of the shooting and his
identification of the intended victim as a rival gang
member was harmless beyond a reasonable doubt. Even
though we find no Miranda violation, we, nevertheless,
address the harmless error argument. In support of its
contention, the state maintains that the other evidence
of the defendant’s guilt was overwhelming, such that
that testimony had no material bearing on the jury ver-
dict. The defendant asserts that the challenged evidence
was harmful because there was no eyewitness testi-
mony identifying him as the shooter, there was no physi-
cal evidence confirming his presence in the Ford Escape
at the time of the incident, the witnesses who implicated
the defendant in the shooting had a motivation to do
so, and the testimony of Shaw and Jonathan Vellon
contained inconsistencies. We agree with the state.
The standard governing our review of this issue is
well established. ‘‘[I]f statements taken in violation of
Miranda are admitted into evidence during a trial, their
admission must be reviewed in light of the harmless
error doctrine.’’ (Internal quotation marks omitted.)
State v. Tony M., 332 Conn. 810, 822, 213 A.3d 1128(2019). ‘‘The harmless error doctrine is rooted in the
fundamental purpose of the criminal justice system,
namely, to convict the guilty and acquit the innocent.
. . . Therefore, whether an error is harmful depends
on its impact on the trier of fact and the result of the
case. . . . [Our Supreme Court] has held in a number
of cases that when there is independent overwhelming
evidence of guilt, a constitutional error would be ren-
dered harmless beyond a reasonable doubt. . . . When
an [evidentiary] impropriety is of constitutional propor-
tions, the state bears the burden of proving that the
error was harmless beyond a reasonable doubt. . . .
[W]e must examine the impact of the evidence on the
trier of fact and the result of the trial. . . . If the evi-
dence may have had a tendency to influence the judg-
ment of the jury, it cannot be considered harmless. . . .
That determination must be made in light of the entire
record [including the strength of the state’s case without
the evidence admitted in error].’’ (Internal quotation
marks omitted.) State v. Gonzalez, supra, 302 Conn.
306–307. ‘‘Whether [an] error is harmless in a particular
case depends upon a number of factors, such as the
importance of the witness’ testimony in the prosecu-
tion’s case [and] whether the testimony was cumulative
. . . .’’ (Internal quotation marks omitted.) State v.
Tony M., supra, 822.
In the present case, there was compelling indepen-
dent evidence that the defendant was a passenger in
the Ford Escape not only on the day of the shooting
but at the time of the shooting, as well, such that the
defendant’s statement to Rykowski acknowledging that
he was in the vehicle that day was merely cumulative. At
trial, Simpson and Shaw, who were in the Ford Escape
when the shooting took place, both testified that the
defendant was with them in the vehicle at that time.
Although Jonathan Vellon refused to identify anyone
else in the vehicle in his trial testimony, including the
defendant, his signed, sworn statement to the police
identifying the defendant as a rear seat passenger in
the vehicle at the time of the shooting was admitted
into evidence as a full exhibit and read to the jury.
Rykowski also testified that both Pipkin and Osvaldo
Vellon had provided statements to the police identifying
the defendant as a passenger in the Ford Escape when
the gunshot that killed the victim was fired.
With respect to Rykowski’s testimony that he
believed that the defendant had told him that Johnson26
was the intended victim of the shooting, it bears empha-
sis that, before invoking his right to counsel, the defen-
dant—who maintained his innocence throughout his
interview with the police—already had told Rykowski
that he did not get along with people at Westland Street,
whom he referred to as the ‘‘G’s,’’ and that he knew a
person by the name of Deandre.27 The fact that the
defendant apparently told Rykowski later in the inter-
view that Johnson was the intended victim does not
establish that the defendant was present when the
shooting took place because that statement itself con-
tains no indication as to how the defendant became
aware of the identity of the intended victim.28 Because
the defendant’s statement to Rykowski about Johnson
could very well have been based on information that
the defendant learned secondhand, after the shooting
incident occurred, about Johnson’s identity as the
intended victim, the statement was hardly persuasive
evidence of the defendant’s actual participation in the
shooting.
Moreover, the state was not required to establish the
shooter’s identity for purposes of the conspiracy to
commit murder charge, and the evidence was clear that,
even if the defendant did not fire the gunshot that killed
the victim, the gunshot was fired from the Ford Escape.
In addition, the inconsistencies in the testimony of
Shaw and Jonathan Vellon related to collateral issues
and were inconsequential, except insofar as Jonathan
Vellon testified that the defendant was not in the Ford
Escape at the time of the shooting. Jonathan Vellon’s
trial testimony in this regard, however, was flatly con-
tradicted by the sworn statement that he gave to the
police immediately after the shooting. Because Jona-
than Vellon’s written statement was made so soon after
the incident and was corroborated by the statements
of at least four other eyewitnesses, and because he
was so evasive in his trial testimony, there is a high
probability that the jury credited that statement over
his testimony, which could well have appeared to the
jury as motivated by a desire to protect the defendant.
Finally, because Simpson, Shaw and Jonathan Vellon,
like all of the other witnesses, were subject to extensive
cross-examination about whatever interest or motive
they may have had to falsely implicate the defendant
in the shooting, the jury was well aware of any such
interest or motive.
For all these reasons, we conclude that the admission
of Rykowski’s challenged testimony had no bearing on
the outcome of the defendant’s trial, and, consequently,
its use by the state was harmless beyond a reasonable
doubt. Accordingly, the defendant is not entitled to a
new trial even if the admission of the testimony was
improper.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-54a (a) provides in relevant part: ‘‘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 . . . .’’
General Statutes § 53a-48 (a) provides: ‘‘A person is guilty of conspiracy
when, with intent that conduct constituting a crime be performed, he agrees
with one or more persons to engage in or cause the performance of such
conduct, and any one of them commits an overt act in pursuance of such
conspiracy.’’
2
The police learned that the defendant is nicknamed ‘‘Bama’’ because he
is originally from Alabama.
3
The operator of the Nissan Altima was identified as Jose Verdes, who
also provided the police with information about the shooting.
4
The evidentiary portion of the trial commenced on July 17, 2019.
5
In State v. Whelan, supra, 200 Conn. 753, our Supreme Court ‘‘adopted a
hearsay exception allowing the substantive use of prior written inconsistent
statements, signed by the declarant, who has personal knowledge of the
facts stated, when the declarant testifies at trial and is subject to cross-
examination.’’ State v. Bermudez, 341 Conn. 233, 240 n.8, 267 A.3d 44 (2021).
6
Jonathan Vellon’s brother, Osvaldo Vellon, also was called by the state
as a witness, but he refused to answer any questions.
7
Pursuant to the agreement, Simpson pleaded guilty to conspiracy to
commit murder and possession of a firearm in a motor vehicle for his role
in the shooting, for which he was to be sentenced to a minimum of ten
years and no more than twenty-five years of incarceration. In exchange for
his guilty plea, he agreed to cooperate with the state by providing information
and testimony concerning the shooting and another, separate criminal case
involving the defendant. See footnote 10 of this opinion.
8
We note that, contrary to Simpson’s testimony, Shaw testified that the
defendant was associated with the Ave gang, which conflicted with a written
statement he had given to Rykowski shortly after the incident indicating
that he was not aware of any such association. Shaw explained, however,
that, at the time he gave that statement, he was unaware that the defendant
had any gang affiliation and that the police subsequently told him that the
defendant was in a gang. Shaw further testified, contrary to Simpson’s
testimony, that Pipkin himself handed the gun directly to Simpson and never
gave the gun to Shaw.
9
The defendant, who did not testify at trial, adduced testimony from one
witness, Karina Salcedo, an officer with the Hartford Police Department,
who had responded to the scene of the shooting.
10
The defendant’s previous sixteen year sentence followed his conviction
of manslaughter in the second degree and evading responsibility based on
conduct by the defendant that occurred the day before the shooting incident
at issue in this appeal. His conviction of those charges was upheld on appeal
to this court; see State v. Russaw, 203 Conn. App. 123, 247 A.3d 614 (2021);
and our Supreme Court denied the defendant’s petition for certification to
appeal. See State v. Russaw, 336 Conn. 933, 248 A.3d 1 (2021).
11
Under Golding, a defendant may prevail on an unpreserved claim only
if the record is adequate for review of the claim, the claim is of constitutional
magnitude alleging the violation of a fundamental right, the alleged constitu-
tional violation exists and deprived the defendant of a fair trial, and the
state cannot demonstrate the harmlessness of the violation. See State v.
Golding, supra, 213 Conn. 239–40.
12
Although the defendant acknowledges that the question of whether the
transferred intent doctrine applies to the crime of conspiracy to commit
murder has not been decided by the courts of this state, he cites several
cases which, he contends, support his claim that it does not. See, e.g., State
v. Beccia, 199 Conn. 1, 5, 505 A.2d 683 (1986) (‘‘Just as one cannot attempt
to commit an unintentional crime . . . one cannot agree anticipatorily to
accomplish an unintended result. There is just no such crime as would
require proof that one intended a result that accidentally occurred.’’ (Citation
omitted; internal quotation marks omitted.)). We need not consider this
issue, however, in light of our determination that the defendant’s conspiracy
conviction was not predicated on a theory of transferred intent.
13
As reflected in the court’s instruction on transferred intent, that doctrine
‘‘was created to apply to the situation of an accused who intended to kill
a certain person and by mistake killed another. His intent is transposed
from the person to whom it was directed to the person actually killed.’’
(Internal quotation marks omitted.) State v. Tutson, 99 Conn. App. 655, 663,
915 A.2d 344 (2007).
14
See footnote 1 of this opinion.
15
In Kitchens, our Supreme Court concluded that ‘‘when the trial court
provides counsel with a copy of the proposed jury instructions, allows a
meaningful opportunity for their review, solicits comments from counsel
regarding changes or modifications and counsel affirmatively accepts the
instructions proposed or given, the defendant may be deemed to have knowl-
edge of any potential flaws therein and to have waived implicitly the constitu-
tional right to challenge the instructions on direct appeal.’’ State v. Kitchens,
supra, 299 Conn. 482–83.
16
Our recitation of the relevant facts is predicated on the findings of the
trial court as set forth in its memorandum of decision denying the defendant’s
motion to suppress and on our independent review of the video recording
of the police interview. Although the recording of the interview was not
introduced into evidence at the defendant’s trial, the state did introduce the
recording at the hearing on the defendant’s motion to suppress, and the
court relied on the recording in denying that motion.
17
Although the defendant had turned eighteen years old the day before,
on July 18, 2017, his father was present while the defendant was being
advised of his rights because Rykowski believed that it would be best to
advise the defendant as a juvenile.
18
The defendant’s father did not join Rykowski and Pethigal when they
reentered the interview room at this time.
19
Sergeant Rivera’s first name is not apparent from the record.
20
The defendant did not seek to suppress any statements that he made
prior to invoking his right to counsel, and those statements are not the
subject of this appeal.
21
In the present case, there is no dispute that the defendant was in custody
at all relevant times.
22
The defendant’s claim concerns Pethigal’s statements to the defendant
that he could not speak with the defendant because the defendant had asked
for an attorney and that Pethigal would ‘‘love to discuss this more’’ but
could not in light of the defendant’s request, as well as Rivera’s statement:
‘‘You had your opportunity to speak to us. You requested a lawyer. We are
done talking with you, sir.’’
23
The defendant in Gonzalez had been brought to the police station for
questioning about a murder. State v. Gonzalez, supra, 302 Conn. 296. ‘‘Although
the defendant initially persisted in resisting being interviewed by stating
that he wanted an attorney and that he would not speak to the officers, the
officers only told the defendant to sit there and wait to be booked, made
no effort to honor the defendant’s request for counsel or to explain his
rights and remained seated at the table, staring at the defendant in silence.
Approximately sixty seconds later, the defendant began making the con-
tested statements.’’ Id., 296–97. Moreover, ‘‘once the defendant commenced
narrating his activity on the day of the murder . . . the officers did not
ascertain whether the defendant was waiving his prior request for counsel.
The officers also never presented the defendant with a waiver of rights form
that had been in their possession throughout the interview.’’ Id., 302–303.
Those facts are notably different from the facts of the present case, in which
the defendant was advised twice of his Miranda rights and twice signed a
waiver of rights form before making any incriminating statements, the offi-
cers ascertained that the defendant wanted to speak to them despite his
prior request for counsel, and the officers left the interview room and the
interview ceased for a period of time after the defendant’s invocation of
his right to counsel.
24
This determination is supported by the fact that, later in the interview,
the defendant asked: ‘‘If we clear everything up will I still have to go to
jail?’’ In response to that question and again thereafter, Rykowski explained
to the defendant that there was an active warrant for his arrest, that Rykow-
ski could not change that fact, and that the defendant would be placed
under arrest and booked at that time regardless of what he told the police
about the shooting incident.
25
We note that the defendant requested, for the first time at oral argument
before this court and subsequently in a written motion filed shortly there-
after, that he be permitted to submit a supplemental brief raising an Edwards
claim under article first, § 8, of the Connecticut constitution. See State v.
Purcell, supra, 331 Conn. 362 (article first, § 8, of Connecticut constitution
provides greater rights than federal constitution insofar as that state constitu-
tional provision ‘‘requires that, if a suspect makes an equivocal statement
that arguably can be construed as a request for counsel, interrogation must
cease except for narrow questions designed to clarify the earlier statement
and the suspect’s desire for counsel’’ (internal quotation marks omitted)).
More specifically, the defendant sought to raise and brief the claim that the
statement he made after booking that he wanted to resume speaking to the
police ‘‘if it helps clear stuff up’’ was equivocal, thereby triggering a state
constitutional duty on the part of the police to inquire further solely for the
purpose of clarifying the defendant’s statement. Ordinarily, we will not
entertain claims raised for the first time at oral argument. See, e.g., State
v. Cicarella, 203 Conn. App. 811, 817 n.5, 251 A.3d 94, cert. denied, 337
Conn. 902, 252 A.3d 364 (2021). Upon consideration of the defendant’s
request in the present case, we concluded that there was no need to address
the merits of the motion in light of our determination—explained more fully
in part II C of this opinion and equally applicable to a claim under the state
constitution—that, even if the defendant could establish that the police
violated his right to counsel by questioning him following his invocation of
that right and after he had been booked, the violation would be harmless
beyond a reasonable doubt due to the overwhelming independent evidence
of the defendant’s guilt. We therefore denied the defendant’s motion to raise
an Edwards claim under article first, § 8, of the Connecticut constitution
because he could not prevail on that claim.
26
Although Rykowski testified that the name of the intended target was
Andre Johnson, the intended target was identified in the record numerous
times as Deandre Johnson.
27
Because these statements were made before the defendant indicated
he wanted a lawyer, they were not the subject of the defendant’s motion
to suppress.
28
Although, in his police interview and written statement, the defendant
ultimately acknowledged that he was present in the Ford Escape at the time
of the shooting and claimed that a passenger nicknamed ‘‘Hazy’’ was the
shooter, the recording of the police interview and the defendant’s written
statement were never admitted into evidence at the defendant’s criminal
trial. Consequently, the jury never was apprised of that information, and,
for that reason, it does not factor into our harmless error analysis.