218 Conn. 151

State of Connecticut v. Joseph G. Kane

(13836)

Peters, C. J., Callahan, Covello, Borden and Santaniello, Js.

Argued December 12, 1990

decision released March 26, 1991

Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

*152Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, was Mary M. Galvin, state’s attorney, for the appellee (state).

Callahan, J.

The defendant, Joseph Kane, was charged in a substitute information with the crimes of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), larceny in the first degree in violation of General Statutes § 53a-122 (a) (2), and conspiracy to commit larceny in violation of General Statutes §§ 53a-122 (a) (2) and 53a-48 (a).1 A jury convicted the defendant of all counts. The trial court subsequently sentenced him to a term of imprisonment of forty-seven years for the crime of felony murder and *153to concurrent terms of imprisonment of twenty years on each of the remaining counts of the information.

The charges contained in the substitute information arose out of the robbery of Valentine’s Diamond Center in Milford by the defendant and Carlton Jolley2 on March 31, 1988. During the course of the robbery, a proprietor of the Diamond Center, Michael Valentine, was shot and killed, and jewelry with a wholesale value of approximately $39,000 was stolen. The defendant did not seriously dispute the fact that he had been at the scene of the robbery and had assisted in removing items from the store. He argued, however, that Jolley had shot the victim and that he had not been aware that Jolley planned a robbery.

At trial, the defendant presented the affirmative defense of insanity, claiming that at the time the crime was committed he suffered from a mental disease or defect. See General Statutes § 53a-13.3 He maintained that, due to a passive personality disorder and adolescent adjustment reaction, he had been in a disassociated state during the robbery and had assisted in the rob*154bery while in that state. He contends, therefore, that he should have been found not guilty by reason of insanity. Two witnesses testified in the defendant’s defense, his mother and James Merikangas, a neurologist and psychiatrist. The defendant did not testify. In his appeal the defendant has launched a wide-ranging attack on the conduct of his trial and the procedure by which he was brought to trial.4

*155The defendant’s principal claim is that General Statutes § 54-46a5 is unconstitutional and deprived him of due process of law because the statute precluded a motion to suppress at his probable cause hearing and consequently deprived him of the opportunity to suppress his allegedly involuntary statements to the police at that stage of the proceedings. He contends, there*156fore, that he is entitled to a new probable cause hearing at which his motion to suppress must be heard, and a new trial. We disagree.

“It is well settled that a party who challenges a statute on constitutional grounds has no easy burden, for every intendment will be made in favor of constitutionality, and invalidity must be established beyond a reasonable doubt. Lublin v. Brown, 168 Conn. 212, 219, 362 A.2d 769 [1975]; Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 [1972], appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 [1973]; Adams v. Rubinow, 157 Conn. 150, 152-53, 251 A.2d 49 [1968]; Patterson v. Dempsey, 152 Conn. 431, 444, 207 A.2d 739 [1965]; Norwalk Street Ry. Co.’s Appeal, 69 Conn. 576, 594, 37 A. 1080 [1897].” State v. Darden, 171 Conn. 677, 678, 372 A.2d 99 (1976); see also University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 390, 512 A.2d 152 (1986); State v. Dupree, 196 Conn. 655, 663, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985). The defendant has cited no authority that compels us to conclude that he has sustained the heavy burden he has shouldered of demonstrating the unconstitutionality of the statutory provision in question.6

*157The legislature enacted § 54-46a in the 1983 legislative session. See Public Acts 1983, No. 83-210, §§ 1, 5. The purpose of § 54-46a was to institute the procedures necessary to implement article first, § 8 of the Connecticut constitution, as amended by article seventeen of the amendments to the Connecticut constitution,7 which had been certified by the secretary of the state as adopted by the voters during the prior year. See State v. Sanahria, 192 Conn. 671, 677-78, 474 A.2d 760 (1984). That amendment eliminated the grand jury indictment as the required means for holding a person for a crime punishable by death or life imprisonment and replaced it with a probable cause hearing. At the time of its adoption, however, the amendment did not embody the procedures necessary to facilitate its implementation but rather left the enactment of such procedures to the legislature. State v. Rollinson, 203 Conn. 641, 651, 526 A.2d 1283 (1987). The legislature responded by enacting § 54-46a. State v. Sanabria, supra, 693. Included in § 54-46a (b) is the provision that *158the defendant claims is unconstitutional and deprived him of due process of law, namely, that: “No motion to suppress or for discovery shall be allowed in connection with [a probable cause] hearing.”

There is no federal constitutional requirement applicable to the states mandating a grand jury proceeding or probable cause hearing in order to place a person on trial in a state criminal proceeding. Gosa v. Mayden, 413 U.S. 665, 668 n.1, 93 S. Ct. 2926, 37 L. Ed. 2d 873 (1973); Hurtado v. California, 110 U.S. 516, 538, 4 S. Ct. 111, 28 L. Ed. 232 (1884); Collins v. Swenson, 443 F.2d 329, 331 (8th Cir. 1971); State v. Gyuro, 156 Conn. 391, 394, 242 A.2d 734, cert. denied, 393 U.S. 937, 89 S. Ct. 301, 21 L. Ed. 2d 274 (1968); State v. Orsini, 155 Conn. 367, 375-76, 232 A.2d 907 (1967); Hervey v. People, 178 Colo. 38, 44, 495 P.2d 204 (1972); State v. Jefferson, 79 Wash. 2d 345, 348, 485 P.2d 77 (1971); 1 F. Wharton, Criminal Procedure (13th Ed. Torcia) § 179. Connecticut was free therefore to create its own method and procedures to establish probable cause as a prerequisite to a trial for crimes punishable by death or life imprisonment. The constitutional amendment established the method, a probable cause hearing, and the legislature, pursuant to the constitutional mandate imposed upon it by the amendment, established the procedures for the conduct of the hearing through the enactment of § 54-46a. Once in place, those procedures became constituent parts of the substantive rights created by the constitutional amendment. State v. Rollinson, supra, 651; State v. Sanabria, supra, 690. Those substantive rights explicitly exclude a right to a hearing on a motion to suppress at the probable cause stage of a criminal proceeding in which the punishment may be death or life imprisonment. See General Statutes § 54-46a (b). The defendant, having been afforded a probable cause hearing under the constitution and § 54-46a, which provide his only entitle*159ment to such a hearing, can hardly be heard to complain of a lack of due process because the trial court refused to extend him a right to which he was not entitled under either.

Moreover, “a hearing in probable cause is necessarily more limited in scope than a full trial on the merits.” State v. Rollinson, supra, 649. “A preliminary hearing is not designed to be a dress rehearsal for the trial.” Wilson v. State, 655 P.2d 1246, 1251 (Wyo. 1982). “A substantial majority of the states, including many which require a general adherence to the rules of evidence, do not recognize exclusionary rule objections at the preliminary hearing.” 2 W. LaFave & J. Israel, Criminal Procedure (1984) § 14.4, p. 266. Also, under the federal rules of criminal procedure, motions to suppress must be made to the trial court. See Fed. R. Crim. P. 5.1; 21 Am. Jur. 2d, Criminal Law § 428. Therefore, as long as the defendant was afforded the opportunity to challenge the admissibility of his statements at trial, the adjudicatory phase of the proceeding against him, his right to due process was preserved. See Costello v. United States, 350 U.S. 359, 364, 76 S. Ct. 406, 100 L. Ed. 397, reh. denied, 351 U.S. 904, 76 S. Ct. 692, 100 L. Ed. 1440 (1956); In re Ralph M., 211 Conn. 289, 313, 559 A.2d 179 (1989); Wilson v. State, supra. The Supreme Court of Hawaii, in commenting on a rule of criminal procedure containing a provision analogous to the provision of § 54-46a in question, stated that “a damaging confession, which may later be suppressed at the trial level on the ground that it was involuntary and illegally obtained by the police, may be admitted at a preliminary hearing.” Gannett Pacific Corporation v. Richardson, 59 Haw. 224, 232, 580 P.2d 49 (1978). We agree.

The defendant thereafter claims that even if he was not entitled to a motion to suppress at his probable cause hearing, the statements he gave to the police *160should have been excluded from evidence at his trial because they were involuntary. The trial court determined that the defendant’s statements were voluntary and admitted them into evidence.

The use of an involuntary statement of a defendant in a criminal trial violates a defendant’s right to due process of law. State v. Boscarino, 204 Conn. 714, 740, 529 A.2d 1260 (1987); State v. Smith, 200 Conn. 465, 475, 512 A.2d 189 (1986). As a prerequisite to admissibility the state is required to prove, by a preponderance of the evidence, that under all the circumstances admissions by an accused were voluntarily made. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Chung, 202 Conn. 39, 53, 519 A.2d 1175 (1987); State v. Stankowski, 184 Conn. 121, 131, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); State v. Vollhardt, 157 Conn. 25, 34, 244 A.2d 601 (1968). “ ‘The issue of whether [admissions are] voluntary and admissible is, in the first instance, one of fact for determination by the trial court in the exercise of its legal discretion.’ State v. Derrico, 181 Conn. 151, 162, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); see Jackson v. Denno, 378 U.S. 368, 395, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Our usual deference to the trial court’s finding on questions of this nature is qualified by the necessity for an independent examination of the entire record to determine whether the trial court’s finding of voluntariness is supported by substantial evidence. State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986); State v. DeForge, 194 Conn. 392, 398, 480 A.2d 547 (1984).” State v. DeAngelis, 200 Conn. 224, 232, 511 A.2d 310 (1986); State v. Chung, supra, 54.

We have made that independent examination and conclude that there is nothing in the record to support *161the defendant’s contention that his statements were not freely given. There is no evidence that, under all the circumstances, including the defendant’s age and intellect, the police conduct in relation to him “was such as to overbear [his] will to resist and bring about [statements] not freely self-determined . . . .” Rogers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961); State v. Boscarino, supra, 740; State v. Smith, supra, 477; State v. Shifflett, 199 Conn. 718, 727, 508 A.2d 748 (1986). There is, on the other hand, substantial evidence that the police observed the defendant’s rights scrupulously and treated him fairly. The trial court did not act improperly in admitting the defendant’s statements into evidence.

All of the defendant’s remaining claims complain either of discretionary rulings by the trial court or seek review by this court of trial court rulings that were not properly preserved for appellate review. We have examined the defendant’s claims pertaining to the trial court’s discretionary rulings and have concluded that the court did not abuse its discretion in ruling as it did on those questions requiring the exercise of its discretion. We have also scrutinized the defendant’s claims that were not properly preserved for appellate review and to which the defendant ascribes constitutional implications. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Our examination of those claims in juxtaposition to the entire record leads to the conclusion that, even if conceded, any alleged constitutional imperfections in the defendant’s trial did not, singly or collectively, clearly deprive him of a fair trial. See State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989).

The judgment is affirmed.

In this opinion the other justices concurred.

State v. Kane
218 Conn. 151

Case Details

Name
State v. Kane
Decision Date
Mar 26, 1991
Citations

218 Conn. 151

Jurisdiction
Connecticut

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