Opinion
CR15206930
02-08-2017
State of Connecticut v. Tony Moreno
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO SUPPRESS STATEMENTS
Elpedio N. Vitale, J.
The defendant, Tony Moreno, stands charged in Docket No. CR15-206930 with Murder, in violation of C.G.S. § 53a-54(a) and Risk of Injury to a Minor, in violation of C.G.S. § 53-21. The charges arise from events that are alleged to have occurred on July 15, 2015 in the City of Middletown at a location known as the Arrigoni Bridge.
On January 18, 2017, the defendant filed a Motion to Suppress Statements requesting that this court " suppress any and all statements made by the defendant on July 6, 2015 while at Hartford Hospital." The defendant claims in his motion that " the statements were obtained in violation of the Fifth Amendment, the Due Process Clauses of the United States and Connecticut Constitutions, General Statutes § 54-10, and the psychiatrist-patient privilege." The defendant submitted a Memorandum of Law in Support of the Motion. The State objects to the Motion.
On February 1, 2016, February 2, 2016, and February 6, 2016, the court conducted an evidentiary hearing on the Motion. The State presented the testimony of Officer Lee Buller and Detective Dane Semper of the Middletown Police Department, Dr. Samira Solomon and Dr. Robert Brautigam from Hartford. Hospital, and Ann Kadlubowski, a Physicians Assistant now employed full-time at Jefferson Radiology in Hartford, but employed at the time of the alleged incident in a similar capacity at Hartford Hospital. The defense presented the testimony of Andrea Gaskins, Milagros Perez, and Egle Sierkevicieme, all employees of Hartford Hospital.
The testimony of each witness generally concerned the defendant's presence at Hartford Hospital (" Hospital") July 5 and July 6, 2015. The defendant was a patient receiving treatment at the Hospital's Intensive Care Unit (" ICU") during the time in question. While at the Hospital, the defendant was interrogated by Detective Dane Semper and a portion of the interview was video recorded. Officer Lee Buller is alleged to have been present in the defendant's room at the time of Semper's interview as well as when the defendant conversed with Dr. Samira Solomon, a psychiatrist who was then working as a psychiatric fellow at the Hospital. The State contends that the defendant made oral statements to Detective Semper and Dr. Solomon. The statements to Dr. Solomon, made in Officer Buller's presence, were memorialized in a police report generated by Buller. The defendant has raised a number of claims related to the alleged oral declarations to Detective Semper and Dr. Solomon. The court will address each claim specifically raised in the defendant's memorandum and specifically raised at oral argument in turn, although many of the specific claims are related in their general implication of the claimed mental and physical condition of the defendant at the time the alleged oral statements were made.
The State has conceded for purposes of the defendant's Motion that the defendant was interrogated, but claims that he was not in custody.
The court heard oral argument on the Motion February 6, 2016. Although referenced in his Memorandum of Law in Support of the Motion, at oral argument the defendant withdrew any claims made pursuant to State v. Stoddard, 206 Conn. 157, 169-60, 537 A.2d 446 (1988).
In reaching its conclusions, the court has fairly and impartially considered all of the evidence received at the hearing, evaluated the credibility of the witnesses; assessed the weight, if any, to be given specific evidence and measured the probative force of conflicting evidence; reviewed all exhibits, relevant statutes, and case law; and has drawn such inferences from the evidence, or facts established by the evidence, that it deems reasonable and logical.
To the extent it is necessary to further amplify, the court's credibility determinations for each witness--expert and non-expert--were made, inter alia, on the basis of the conduct, demeanor, and attitude of the witnesses as well as all the other factors relevant for each witness with respect to the credibility evaluation. See Lapointe v. Commissioner of Corrections, 316 Conn. 225, 268-71, 112 A.3d 1 (2015). Additionally, any other evidence on the record not specifically mentioned in this decision that would support a contrary conclusion, whether said evidence was contested or uncontested by the parties, was considered and rejected by the court. See State v. Edmonds, 323 Conn. 34, 145 A.3d 861 (2016).
For the reasons set forth below, the Motion is hereby denied.
Although the defendant's written motion appears to raise a state constitutional claim, he has not presented a separate analysis of his claims under the state constitution. As a result, the court's analysis is confined to federal constitutional claims. See State v. Faust, 237 Conn. 454, 465 n.10, 678 A.2d 910 (1996).
1.
Findings of Fact
Based on the evidence and the reasonable and logical inferences therefrom, the court finds the following facts:
On July 5, 2015, the defendant, Tony Moreno, sustained injuries as the result of leaping from the Arrigoni Bridge into the river below. The defendant was first transported to Middlesex Hospital, but was later transported via " Life Star" helicopter to Hartford Hospital. The defendant had attempted to commit suicide. The defendant sustained a nasal bone fracture, a collapsed left lung, swelling and bruising of his face and eyes, bruising to his right upper thigh, and a puncture wound below his right knee. There was no evidence presented of any brain injury. Upon arrival at Hartford Hospital in the early morning hours of July 6, 2015, the defendant was initially treated in the trauma room of the emergency department. Hartford Hospital records reflect that while the defendant was treated in the emergency department, the following medications were administered between 1:28 a.m. and 3:45 a.m.: Ativan, Propofol, Versed, Fentanyl, and Veccurioum. Propofol is a sedative, with a common effect of sedation. It is used to keep patients calm and sedated, and is also used to ease the intubation process. Fentanyl is a " narcotic analgesic" used to relieve pain. Versed and Ativan are both sedatives, or anti-anxiety medications. Versed is a shorter acting medication. Veccurioum is most commonly used when a breathing tube is placed in a patient's throat, as it acts to help restrict involuntary muscle movement at the time of the intubation. State's Exhibit Four reflects that the defendant received 50 mcg of Propofol at 1:28 a.m. Between 1:40 a.m. and 2:24 a.m., the defendant received a total of 300 mcg of Fentanyl administered in 100 mcg doses approximately 20 minutes apart. He received another 100 mcg dose of Fentanyl at 3:45 a.m., and then 50 mcg of Fentanyl at 9:35 a.m. Both Propofol and Fentanyl are " short acting drugs."
Following his treatment in the emergency department, the defendant was brought to a patient room located on the ninth floor, unit 13 of the Intensive Care Unit (ICU). At all times relevant to this proceeding, he was the only patient in the room. At some point following the defendant's arrival to his room on the ICU, Officer DiMassa of the Middletown Police Department was stationed therein in an effort to " monitor" the defendant. At approximately 8:00 a.m. on July 6, 2015, Officer Lee Buller of the Middletown Police Department arrived at the defendant's room. He had been directed by his supervisor to travel to Hartford Hospital to relieve DiMassa. Both DiMassa and Buller were in uniform. Once Buller arrived, DiMassa left the defendant's room and returned to the Middletown Police Department. He used Buller's police vehicle to return to the police department. At the time of Buller's arrival, the defendant was asleep. He had been intubated (a plastic tube placed in his throat to assist with breathing) at Middlesex Hospital prior to his transport to Hartford Hospital.
At the time of Buller's arrival at the hospital, Middletown police were also aware that the defendant had " dropped" his seven-month-old son Aaden Moreno from the Arrigoni Bridge prior to his own suicide attempt. Aaden Moreno's body had not yet been recovered at the time Buller arrived. In addition to being in uniform, Buller was in possession of a firearm, taser, and handcuffs. Buller was aware that Aaden Moreno was still missing. Buller had been instructed to notify Captain Wallace of the Middletown Police Department of the defendant's condition, and specifically, to inform Wallace if the defendant was no longer asleep. The defendant wore soft " medical restraints" on both wrists that were tied to his bed. The restraints are used in the ICU for the protection of patients who are intubated. The restraints are designed to prevent patients from attempting to remove a breathing tube or other medical lines, as patients may become restless or agitated as they wake up. The restraints are used on an intubated patient whether a patient has attempted suicide or not. The defendant's injuries were not considered to be life threatening. His treatment plan included " weaning" him off the plastic breathing tube.
At approximately 11:40 a.m. on July 6, 2015, the defendant was examined by Ann Kadlubowski, a physicians assistant assigned to the trauma surgery service. At the time Kadlubowski examined the defendant, he was conscious. She conducted a " tertiary exam, " which is designed to locate any injuries that may have avoided detection in the emergency department initially. She also questioned the defendant during the exam. The defendant had " just been" extubated prior to her arrival, meaning he no longer was utilizing the breathing tube. Once the defendant's breathing tube was removed, he was considered stable with non-life threatening injuries, and ordinarily would have then been transferred out of the ICU to a different level of care. However, due to the nature of the investigation regarding his missing son, and its effect on staff, it was decided he should nevertheless remain in his original room in the ICU. Although Kadlubowski could not provide an exact time the extubation occurred, any Propofol the defendant had been receiving would have been stopped prior to the extubation in order to " give [Moreno] the best chance to breathe on his own" and to " see if he follows commands." Prior to extubation, the defendant would have been assessed to determine if he was awake and alert, and " off" sedation.
Typically, any medication is stopped " 20 minutes to half an hour" prior to extubation. Kadlubowski found no further evidence of injury. As a part of her examination, she administered tests pursuant to the Glasgow Coma Scale (" GCS"). The GCS is a set scale that measures the level of consciousness or coma. It is a fifteen-point scale, with fifteen being the highest possible total score, and three the lowest. The scale looks at three areas: eyes, motor skills, and speech. With respect to the eye component, the highest possible score is four, which designates spontaneous eye opening. The defendant's eyes were swollen and consequently were difficult to open. The motor component measures the ability to obey verbal commands, with six being the highest possible score. The highest possible score for the verbal component is five. Motor response is one of the more important components in that it demonstrates the ability of the brain to comprehend what the command is and then to follow it. The defendant was able to, among other things, provide a " thumbs up, " " which is the response we look for, " when requested to do so by Kadlubowski. There is no evidence the defendant has at any point in his life been diagnosed with a mental illness. The defendant communicated by nodding " yes or no" in response to questions, and was alert. Kadlubowski had no question that the defendant was able to understand and follow her commands. The defendant was able to open his eyes, and Kadlubowski was able to see his pupils. A police officer was present in the room during her examination, and the defendant was on a suicide watch. Her review of the defendant's records indicated that the defendant's earlier loss of consciousness was related to the trauma received upon impacting the water in his suicide attempt. Kadlubowski questioned the defendant about his level of pain. He had no " difficulties" breathing or with his heart. He further had no " difficulties" with his back, abdomen, spine, and upper or lower extremities. Following her examination, Kadlubowski rated the defendant with a fourteen out of a possible fifteen on the Glasgow Scale. She left the room following her examination. The hospital also utilized the Richmond Agitation-Sedation Scale (" RASS") which is a mechanism to assess a patient's level of " calmness." The defendant's hospital record reflects that his RASS scale on July 6, 2015 at noon was zero, " meaning [Moreno] was alert and calm." The RASS score was entered at 1:15 p.m. by a nurse.
At approximately noon on July 6, 2015, Officer Buller called the Middletown Police Department and informed Captain Wallace that the defendant " was awake, " and that his breathing tube had been removed. At that time, the defendant was eventually able to provide " short, one-word answers, " and was " very soft spoken." Initially, after the breathing tube was first removed, he was not able to speak. However, could nod his head " yes or no" in response to questions. Wallace then informed Buller that Detective Dane Semper was on route to the hospital. Semper arrived at the defendant's room at approximately 12:55 p.m. Prior to Semper's arrival, Buller heard the defendant utter a request for water, and ask to have his position in bed adjusted. There was a Patient Care Assistant (" PCA") in the room at all times to assist the defendant with any needs. Buller was familiar with the defendant from prior police encounters. According to State's Exhibit Two, on December 28, 2011, pursuant to an arrest of the defendant, Buller had occasion to provide Miranda warnings to the defendant. State's Exhibit Two a copy of the document reflecting the warnings provided to the defendant on that occasion. Buller read aloud each of the warnings, and the defendant signed the document on that occasion as an acknowledgment of his receipt of the warnings. Although the defendant was in the 11th grade in 2011, he subsequently obtained his G.E.D. On December 28, 2011, the defendant did not display any infirmity impacting his ability to comprehend the Miranda warnings provided, and answered Buller's questions appropriately. When Detective Semper entered the room at approximately 12:55 p.m., Buller was present. Two or three members of the hospital staff were also present.
The defendant was in an upright sitting position in his hospital bed at the time, with various medical " lines" attached to his arms. His hands were covered with medical bandages, and the soft medical restraints remained. Semper determined that the defendant was awake, and his eyes were open. He introduced himself by name and as a member of the Middletown Police Department. Semper was attired in plainclothes and was wearing a short-sleeved shirt. He had a police badge attached to a chain that hung from his neck. After a brief interaction, Semper left the room. Semper returned to the defendant's room approximately ten minutes later, and approached the right side of his bed. He once again introduced himself, and said that " [he would] like to talk to him about finding Aaden so he could have a proper funeral." The defendant did not initially respond to that overture. Semper followed up by stating to the defendant that the police were aware that he had dropped Aaden from the Arrigoni Bridge. Semper told the defendant that he wanted to speak with him about what happened so that the defendant could assist the police in finding Aaden. The defendant at that point nodded his head " yes."
Semper was in possession of a video recorder that he had secured from the Middletown Police Department. Semper thereupon provided the video recorder to Buller, who was in the room, with instructions to video record the interview. There is no evidence that Buller was aware Semper planned to bring a video recorder to the defendant's room. The defendant was not then " under arrest." Buller was unfamiliar with the device, and was initially unable to turn it on. Once the defendant indicated he was willing to speak with him, Semper advised the defendant of his Miranda rights by reading from a pre-printed form similar to State's Exhibit Eleven. Due to Buller's inability to start the video recorder in a timely manner, this portion of the interaction between the defendant and Semper was not recorded. Semper orally read " line by line" from the form to the defendant. When Semper finished reading the defendant the Miranda warnings, he asked the defendant if he understood his rights. The defendant nodded his head " yes." The defendant was then twenty-one years old. At the time Semper provided the defendant with his Miranda warnings, the defendant was awake and looking at Semper. The defendant then verbally indicated to Semper his decision to waive his Miranda rights and speak to him. The defendant did not sign the form represented by State's Exhibit Eleven indicating he had received and waived his Miranda rights because his hands remained fastened to the bed by the soft medical restraints. Semper did not, however, ask staff to remove the restraints for purposes of signing the waiver. The restraints were removed, according to Hartford Hospital records, at 2:12 p.m. He also did not request Buller, or other staff, to sign the form as an indication the advisement and waiver had been witnessed. Buller, however, was present when Semper advised the defendant of his Miranda rights and witnessed the defendant's acknowledgment and waiver of those rights. At the time the Miranda advisement and waiver were occurring, Buller was attempting without success to start the video recorder. As a result of his inability to start the video recorder, the advisement and waiver were not captured on the video recorder. There was no evidence to suggest Buller had received prior training on the operation of this particular video recorder, or had previously operated the video recorder in question.
Semper became aware " approximately five minutes" into his interview with the defendant, when he looked toward Buller and observed the position of the video recorder, that Buller was not yet recording the defendant's interview. Semper had been talking to the defendant during that approximately five-minute period. It was during that five-minute period that Semper provided the defendant with his Miranda rights. During that time, Buller was standing inside the room, to the right side of the entry door. The defendant had already received and waived his Miranda rights, and Semper had started questioning the defendant using a " basketball analogy" when Semper realized the video recorder was not on. He then stopped questioning the defendant and personally assisted Buller in turning on the video recorder. Buller then began recording the interview. State's Exhibit Twelve is a copy of the video recorded interview of the defendant. The court has reviewed State's Exhibit Twelve in its entirety. The recording itself contains two distinct segments. One segment (" Segment One") was recorded by Buller while Buller was positioned inside the defendant's room. The second segment (" Segment Two") was recorded while the camera was positioned outside of the defendant's room. During both segments, Semper is positioned in very close proximity to the defendant's bed. As to both segments, the overall sound quality is poor, but certain portions are audible and the defendant is clearly visible. For the most part, the video recorder is focused on the defendant.
During Segment One of the recording, the defendant responded verbally and with gestures to Semper's questions. At the close of Segment One, the defendant asked Semper to turn the video recorder off. The defendant at one point looked directly at the video recorder. The defendant can be observed moving his lips, and clearing his throat. Semper can be heard stating " you don't want the camera?" The defendant then nodded his head " no." Semper can be heard telling Buller to turn it off. The defendant thus was fully aware that his interview with Semper was being recorded and was able to make a conscious choice to avoid an effort by Semper to record the interview.
Semper instructed Buller to turn the recorder off, but Semper nevertheless " set the camera up" outside of the defendant's room on a table. From that vantage point Semper continued to record the interview. The video recorder was positioned fifteen to twenty feet away. Although it is difficult to discern from Segment Two all of what Semper and the defendant are saying to one another, the defendant is clearly observed moving his lips in apparent response to Semper's questions. He can also be observed nodding his head and gesturing. Semper can clearly be heard at points using a " basketball analogy" regarding the manner in which Aaden left the defendant's possession on the Arrigoni Bridge." Semper's use of a " basketball analogy" was the result of information Semper asserted he obtained concerning the possible flow of the river currents. At the outset of the Second Segment the defendant is observed being spoon fed ice chips by a member of the hospital staff, Nurse Sierkevicieme. According to Sierkevicieme, ice chips and water helped to make the defendant's speech " clearer." Once she completed that task, the recording demonstrates she left the room. At the conclusion of the interview, Semper can be observed removing bed coverings. He can be heard saying something to the defendant. The defendant then raised his right arm and he and Semper are observed " shaking hands." Semper then left the room and turned off the video recorder. There is nothing in State's Exhibit Twelve, or the evidence, that demonstrates that the general tenor of the interview was anything other than conversational. There is no evidence that the defendant's responses to Semper's questions failed to have a contextual relationship to the questions that were being asked.
The total length of the video recording, including both clips, is six minutes. The interview ended at approximately 1:30 p.m. Semper left the hospital once the interview ended.
In the " early afternoon" of July 6, 2015, Dr. Samira Solomon knocked on the defendant's door. Dr. Solomon is presently employed at Hartford Hospital as a psychiatrist. On July 6, 2015, Dr. Solomon was employed at Hartford Hospital as a Psychosomatic Medicine Fellow. As a Fellow, Dr. Solomon had completed four years of her psychiatric residency training, and had begun a one-year fellowship in the sub-specialty of psychiatry. She was licensed as a psychiatrist in the State of Connecticut. On July 6, 2015, she had occasion to meet with the defendant for " an initial psychiatric evaluation." Dr. Solomon was aware that a " psychiatric consult" for the defendant had been scheduled. She " happened to be" the person assigned to interview the defendant. When she arrived at the defendant's room, Officer Buller was present, as well as a " continuous observations in nursing" (" COIN") staff member. Dr. Solomon introduced herself as the resident in psychiatry at Hartford Hospital. She asked the defendant if he would speak to her, and the defendant agreed to do so. Prior to her consultation with the defendant, Dr. Solomon reviewed his medical chart. Dr. Solomon then interacted with the defendant. She engaged the defendant in an interview pursuant to the consultation request. She first asked general orientation questions. The defendant was awake, alert, and appropriately responsive to her questions. There was no evidence that Dr. Solomon at any point told the defendant that the communications between them were confidential. Buller was, at all times during Dr. Solomon's interview with the defendant, present in the room and seated in a chair on the defendant's right side. Dr. Solomon confirmed that a police officer was present in the room. Once Dr. Solomon introduced herself to the defendant, Buller asked the defendant if he wanted him to leave the room. The defendant said " no, " and indicated Buller could remain in the room. As the conversation between Dr. Solomon and the defendant progressed a little more, Buller for a second time asked the defendant if " he was sure he didn't want me to leave." The defendant indicated to Buller that " anything he had to say to her, he could say in front of me." The defendant evidenced no difficulties communicating with Dr. Solomon. Buller remained seated in a chair located to the immediate right side of the defendant, and clearly heard the defendant's responses to Dr. Solomon's questions. The defendant spoke in full sentences to Dr. Solomon. His demeanor was calm. The defendant and Dr. Solomon spoke for " longer than fifteen or twenty minutes." The evidence with respect to the substance of the defendant's responses to Dr. Solomon, as recounted by Buller, did not demonstrate any indication of an impaired thought process or lack of understanding. There is no evidence that Dr. Solomon ended the interview prematurely for any reason. Buller left the room briefly near the end of Dr. Solomon's interview to take a call from Captain Wallace. He returned to the room shortly thereafter. Dr. Solomon was still present and Buller spoke to her.
Hospital records reflected that a psychiatry consult was scheduled for 2:00 p.m., but Dr. Solomon did not specify the precise time she arrived and simply said " early afternoon."
Dr. Solomon acknowledged that neither she or the defendant asked Buller to leave the room.
Once Dr. Solomon completed her interview, Buller remained in the defendant's room. He left the hospital at 4:00 p.m. on July 6, 2015, which was " awhile" after Dr. Solomon had done so.
Prior to leaving the defendant's room, he received a call from Captain Wallace. Wallace instructed Buller to obtain a medical release. Buller obtained a document from Hartford Hospital, State's Exhibit Three, entitled " Authorization to Disclose/obtain Health Information." Buller read the front of the form out loud to the defendant, but apparently not necessarily the back. Buller spoke to the defendant about signing a " medical release waiver." The defendant signed his name to the form. The form was also signed by a PCA as a witness. The defendant did not ask any questions about the form. Officer Thompson arrived and relieved Buller in order to continue to " monitor" the defendant.
Additional facts will be provided as needed.
II.
Discussion
A
Custody
The defendant argues that he was in police custody for purposes of Miranda when questioned by Detective Semper in the hospital room and therefore Detective Semper was required to advise him of his Miranda warnings prior to questioning. Police must provide such warnings only to persons who are subject to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). To establish entitlement to Miranda warnings, the defendant must satisfy two conditions, namely that (1) he was in custody when the statements were made, and (2) the statements were obtained in response to police questioning. State v. Britton, 283 Conn. 598, 604, 929 A.2d 312 (2007). Because the State has conceded that interrogation occurred during the time period at issue, the issue before the court is whether the defendant was in custody when that interrogation occurred. The defendant bears the burden of establishing custodial interrogation. State v. Jackson, 304 Conn. 383, 417, 40 A.3d 290 (2012).
The court in State v. Mangual, 311 Conn. 182, 85 A.3d 627 (2014) made clear there are two separate steps that comprise the test for determining custody for purposes of Miranda . The first step of the custody analysis is whether the police encounter at issue was such that a reasonable person would have thought he was free to leave. If a reasonable person would not have thought that he was free to leave, the second step requires a court to ask whether, in addition to not feeling free to leave, a reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest. Id., 194-95.
While it is true that medical restraints placed on the defendant were not occasioned by any action of the police, the police admittedly maintained a " round the clock" presence in the defendant's hospital room at least since his admission to the ICU. It is not entirely clear from the evidence when the defendant actually arrived at the ICU. However, Dr. Brautigam conducted rounds on the morning of July 6, 2015 in the ICU between 6:00 a.m. and 6:30. a.m. He recalled reviewing the defendant's medical records that morning. Officer Buller had relieved Officer DiMassa. DiMassa left the hospital in Buller's police vehicle. Buller was assigned to " monitor" the defendant, though the complete parameters of that responsibility are somewhat nebulous. Buller was in full uniform and possessed a firearm, taser, and handcuffs. At a minimum, he was to remain in the defendant's room at all times, and was to contact his supervisor once the defendant awoke. There is no evidence that if the defendant had asked Buller to leave the room he would have done so. The presence of officers assigned to watch the defendant " round the clock" constituted a significant restraint on his movement. Buller in fact remained in the room once the medical restraints were removed. Buller had no transportation back to the Middletown Police Department. The court finds, applying both prongs of Mangual, supra, that the defendant was in custody for purposes of Miranda . See United States v. Martin, 781 F.2d 671, 673 (9th Cir. 1985). (" This is not to say that an individual would never be " in custody" when held for medical treatment in a hospital. If the police took a criminal suspect to the hospital from the scene of a crime, monitored the patient's stay, stationed themselves outside the door, arranged an extended treatment schedule with the doctors, or some combination of these, law enforcement restraint amounting to custody could result.")
Although the State points to State v. Jackson, 304 Conn. 383, 40 A.3d 290 (2012) as a basis to conclude the defendant was not in custody, the facts in Jackson are inapposite to those presented here. Nothing in Jackson suggests that, unlike the instant case, the police were on " round the clock" monitoring in the hospital room at issue. It appears that the police in Jackson were in the hospital room in question therein for approximately one hour and left at the conclusion of their interview. Buller remained in the defendant's room even after Detective Semper finished his interview and left the hospital. He remained after Dr. Solomon completed her interview. Once Buller completed his shift at 4:00 p.m. on July 6, 2015, Officer Thompson relieved him and inferentially, was able to " monitor" the defendant.
B
Miranda Warnings
Having determined the defendant was in custody, and subjected to interrogation, the issue next presented is whether the defendant was afforded his Miranda warnings. The defendant maintains that he was not advised of his Miranda warnings. The State presented the testimony of Detective Semper and Officer Buller in connection with this claim. Each indicated that Miranda warnings were provided to the defendant orally by Detective Semper reading said rights from a preprinted form similar to State's Exhibit Eleven. The warnings were read aloud by Detective Semper to the defendant line by line. The defendant indicated he understood his rights. Although hospital staff members Andrea Gaskins and Milagros Perez were present in the defendant's room at various points from 7:00 a.m. to 3:00 p.m. on July 6, 2015, neither could recall being present at the time the Miranda warnings were administered. In connection with this particular lack of recall, it is noteworthy that it is undisputed that Semper possessed and used a video recorder on July 6, 2015. However, neither Gaskins or Perez could recall seeing a video recorder at any time that day, even though they recalled seeing an African-American police officer in the defendant's room. Semper is African-American, and Buller is Caucasian. Gaskins and Perez indicated they were not present in the defendant's room at all times on July 6, 2015, and neither could recall the exact times they actually were in the room.
Egle Sierkevicieme, a registered nurse, can be seen on Segment Two of State's Exhibit Twelve feeding the defendant " ice chips." After feeding the defendant " ice chips, " she is observed on the video recording leaving the room. She was responsible for the care of one other patient that day in addition to the defendant. The second patient was " real sick." She also recalled seeing police at some point that day in the defendant's room, but like Gaskins and Perez, could not recall seeing a video recorder while in the defendant's room. The video recorder was at first located inside the room with Buller. Sierkevicieme acknowledged she was not in the defendant's room the entire time Detective Semper was questioning the defendant. Semper was in the defendant's room on two separate occasions. She recalled Semper's use of a basketball analogy, but Semper used that analogy on both Segments of State's Exhibit Twelve. She did not recall seeing a document like State's Exhibit Eleven.
The court credits the testimony of Detective Semper and Officer Buller that Detective Semper orally administered Miranda warnings to the defendant as outlined in State's Exhibit Eleven. State v. Whitaker, 215 Conn. 739, 753, 578 A.2d 1031 (1990); State v. Houghtaling, 155 Conn.App. 794, 111 A.3d 931 (2015); cert. granted on other grounds; State v. Ortiz, 101 Conn.App. 411, 922 A.2d 244, cert. denied, 283 Conn. 911, 928 A.2d 538 (2007).
C
Was there a Knowing and Voluntary Waiver of Miranda Rights
" To be valid, a waiver must be voluntary, knowing and intelligent. Miranda v. Arizona, supra, 384 U.S. 475, 478, State v. Gonzalez, 206 Conn. 213, 217, 537 A.2d 460 (1988); State v. Boscarino, 204 Conn. 714, 743, 529 A.2d 1260 (1987). The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. State v. Hernandez, 204 Conn. 377, 395, 528 A.2d 794 (1987); State v. Chung, 202 Conn. 39, 48, 519 A.2d 1175 (1987); State v. Smith, 200 Conn. 465, 481, 512 A.2d 189 (1986). Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); State v. Chung, supra, 202 Conn. 48. (Internal quotation marks omitted.) State v. Stanley, 223 Conn. 674, 686, 613 A.2d 788 (1992).
" Whether the defendant has knowingly and intelligently waived the 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 constitutional rights . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant's experience with the police and familiarity with the warnings . . . his level of intelligence, including his IQ . . . his age . . . his level of education . . . his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication . . . his emotional state . . . and the existence of any mental disease, disorder or retardation." (Citations omitted; internal quotation marks omitted.) State v. Toste, 198 Conn. 573, 580-81, 504 A.2d 1036 (1986).
" [A]n express written or oral statement of waiver of the right to remain silent is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case . . . [and] in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated . . . Although mere silence of the accused is not enough to establish waiver . . . the record need not show a specific expression of the relinquishment of rights." State v. Cushard, 164 Conn.App. 832, 839, 137 A.3d 926 (2016). (Citations omitted.)
The defendant argues that as a consequence of his suicide attempt, the injuries he received, and the medications he was administered as a consequence of those injuries, he was unable to knowingly or voluntarily waive his rights. As one court described a similar claim, the issue is whether " the defendant [was] so physically and mentally incapacitated by both his suicide attempt and by the administration of the various drugs by physicians to relieve his pain as to be incapable of exercising his free will or of fully appreciating the significance of his admissions." Reddish v. State, 167 So.2d 858 (Fla. 1964).
In the context of Miranda waivers, our Supreme Court has stated that " [t]he waiver must be made voluntarily and 'with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.'" State v. Usry, 205 Conn. 298, 305, 533 A.2d 212 (1987), quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). must be determined on the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." (Internal quotations marks omitted.) State v. Usry, supra, 305. As the United States Supreme Court explained in Moran v. Burbine, supra, 421, " [t]he inquiry has two distinct dimensions . . . First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." (Citations omitted; internal quotation marks omitted.)
The defendant was twenty-one years old at the time Detective Semper interviewed him. He had obtained his G.E.D. The defendant had prior experience with police personally and with a family member. He had received Miranda warnings previously in connection with a December 2011 incident. At the time the warnings were administered in December 2011 by Officer Buller, no concerns about the defendant's level of intelligence were apparent.
The defendant was administered at least five medications in a two-hour period July 6, 2015 commencing at 1:28 a.m. when he was admitted to the Hospital Emergency Department. The medications included Propofol, a sedative, and Fentanyl, a pain reliever. The nurses on the ICU prefer to use Fentanyl as a pain reliever because " it doesn't make people too sleepy so they can communicate" and allows frequent " neuro exams." According to Nurse Sierkevicieme, who had direct contact with the defendant, each of those medications are " short acting." The defendant was extubated at 11:20 a.m., and between 11:20 a.m. and 2:45 p.m., he was not administered any sedatives, " anti-psychotic, " or pain medications. He had no difficulty after his extubation answering questions, or following commands. He requested water and Sierkevicieme provided him with ice chips. The defendant's speech became " more clear, " and when asked by Sierkevicieme, the defendant denied being in pain. He was lucid enough to speak and communicate with her. She administered 50 micrograms of Fentanyl at the defendant's request at 2:45 p.m. Andrea Gaskins, working as a COIN during the 7 a.m. to 3 p.m. shift, spoke with the defendant once he was extubated. She observed the defendant conversing with medical staff and police. She specifically recalled an officer speaking to the defendant using a " basketball analogy" and the defendant appeared to understand and follow the questions. She additionally spoke to the defendant about spiritual matters. Gaskins is also an associate minister, and spoke to the defendant about " God, " church, and " salvation." He was able to provide short answers to her questions and did not appear to her to have any comprehension issues.
The court concludes that under the totality of the circumstances, the state has proven by a preponderance of the evidence that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights. The court credits the testimony of Detective Semper that the defendant, after being advised of his Miranda rights, acknowledged his understanding of those rights, and orally expressed his desire to waive those rights and speak to him. The court further concludes that the evidence fails to demonstrate that the defendant was under the influence of any drug at the time of the waiver that rendered him incapable of freely and rationally forming the intent to waive his rights. There is no persuasive indication in the evidence that the defendant's thinking was impaired as the result of the medication administered at the time he waived his rights. The defendant was extubated at 11:20 a.m., and had not received any medication at least 20 to 30 minutes before that. Thus, it had been approximately two hours since any medication was potentially administered. See State v. Pellegrino, 194 Conn. 279, 480 A.2d 537 (1994) (Defendant hospitalized for treatment of burns on face and hands due to a fire and administered morphine. Physician testified that morphine " impaired motor skills" but knowing and voluntary waiver of Miranda found); State v. Aten, 130 Wash.2d 640, 927 P.2d 210 (1996) (No evidence that medication administered affected defendant's decisional capacity at time of statement); State v. Wynter, 19 Conn.App. 654, 564 A.2d 296, cert. denied 213 Conn. 802, 567 A.2d 834 (1989) (Defendant claimed he involuntarily waived his Miranda rights due to medication he received in the hospital); Drummond v. State, 467 N.E.2d 742 (Ind. 1984) (Defendant questioned shortly after emerging from surgery under general anesthesia due to gunshot wound, statement found voluntary); People v. Van Guilder, 29 A.D.3d 1226, 815 N.Y.S.2d 337 (App.Div.3d Dep't 2006) (Defendant had capacity to understand and waive his fifth amendment rights despite receiving sedatives two hours earlier). The defendant points to the testimony of Dr. Brautigam as evidence of the defendant's inability to understand and waive his Miranda rights. The court observes preliminarily that Dr. Brautigam consistently equivocated on the effects of the medications at issue, recognizing that those effects depend on the " patient's body habits, kidney functions, and liver functions" which would have to be " taken into account to know exactly when they will metabolize." He stated, consequently, that a patient's ability to " navigate in the world" and use " common sense" depends on " the patient and how they metabolize that drug." He later appeared to become less equivocal when asked specifically about a " textbook patient's" abilities at a particular point in time following the administration of certain medications, but ultimately clarified that he was " having a problem with the question" because the timing of the medication at issue is when patient needs them. Nurse Sierkevicieme observed.from State's Exhibit Twelve that the Propofol " line" to the defendant was disconnected. More importantly, as acknowledged by the defendant at oral argument, Dr. Brautigam testified merely from his review of the defendant's medical records. He never personally interacted with the defendant on July 6, 2015. See Wolfrath v. La Vallee, 576 F.2d 965 (2d Cir. 1978) (Physician's generalizations about the probable effect of the drugs on a textbook patient under textbook circumstances, as opposed to his personal knowledge of the defendant's condition after the ingestion of drugs did not support a finding of involuntariness).
The evidence does not reflect that his testimony was stated in terms of reasonable medical probability.
D
Voluntariness of the Statement to Police Under the Due Process Clause
The State is required to prove the voluntariness of a confession by a preponderance of the evidence. State v. Lawrence, 282 Conn. 141, 177, 920 A.2d 236 (2007). The defendant asserts two related claims as to the issue of voluntariness for Due Process purposes. First, he argues that the conduct of law enforcement and the " general atmosphere" present in the defendant's hospital room rendered the defendant's oral declarations to Detective Semper involuntary, and secondly, claims that the defendant's mental and physical condition was such that he was not in a position to rationally exercise his free will and was thus unduly susceptible to police tactics.
" Coercive police activity is a necessary predicate to finding a statement is not voluntary within the meaning of the due process clause." State v. Pinder, 250 Conn. 385, 418-24, 736 A.2d 857 (1999).
" We have stated the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant's] will to resist and bring about confessions not freely self-determined . . . Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he was willed to confess, it may be used against him, if it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process." State v. Reynolds, 264 Conn. 1, 54-55, 836 A.2d 224 (2003). (Internal citations omitted.)
State's Exhibit Twelve reveals that the tenor of the interview by Detective Semper was polite, low key, and generally conversational. The recorded portion of the interview lasted only six minutes. Although the defendant's argument references a " police dominated" atmosphere, the evidence demonstrates that various medical staff was present, or in and out of the defendant's room, at various times. There was no evidence that when police were present the door to the defendant's room was ever closed at any point. The door itself was glass. His room was adjacent to a hallway used by medical staff. During the police interview, Semper was the only officer asking questions of the defendant. State's Exhibit Twelve reveals that Semper attempted to elicit information from the defendant by appealing to the possibility of finding Aaden in order to ensure an appropriate funeral.
Interrogation methods including trickery and deception are permissible unless the technique is so extreme or inappropriate as to render the confession involuntarily. State v. Lockhart, 298 Conn. 537, n.17, 4 A.3d 1176 (2010). For example, statements by police designed to lead a suspect to believe that the case against him is strong are a common investigative technique and would rarely, if ever, be sufficient to overbear the defendant's will and to bring about a confession to a serious crime that is not freely self-determined. State v. Doyle, 104 Conn.App. 4, 17, 931 A.2d 393, cert. denied, 284 Conn. 935, 935 A.2d 152 (2007). In State v. Wright, 76 Conn.App. 91, 818 A.2d 824, cert. denied, 267 Conn. 911, 840 A.2d 1175 (2004), the court held that " encouraging a suspect to tell the truth . . . does not, as a matter of law, overcome a confessor's will . . . neither is a statement that the accused's cooperation will be made known to the court sufficient inducement so as to render a subsequent incriminating statement involuntary." See also State v. Reyes, 81 Conn.App. 612, 617, 841 A.2d 237 (2004) (upholding determination defendant's statement was voluntary, finding officer's statement to the defendant that " [he] better tell the truth or [he] was going to do a lot of time in jail" was not coercive); State v. Houghtaling, 155 Conn.App. 794, 828, 111 A.3d 931, cert. granted on other grounds (2015) (upholding determination defendant's statement was voluntary, finding officer's statements to the defendant " This is what we have here: you're the homeowner, you denied it, we had to chase you up the street and get you to stop . . . one way or another you're going to jail. You can have your side on paper or not. It's up to you" was not coercive).
The defendant's argument regarding coercive police activity is substantially undercut by the fact that the defendant pointedly asked Semper to turn off the video recorder and stop filming the interview. The defendant's conduct in this regard demonstrates that his will had not been overborne by police conduct and that he had not lost his capacity for self-determination. There is no evidence of repeated or prolonged questioning, or the use of physical punishment. The defendant had obtained his G.E.D. and was then twenty-one years old. The evidence did not demonstrate any infirmity regarding his level of intelligence. He had received the Miranda warnings. See State v. Correa, 241 Conn. 322, 328, 696 A.2d 944 (1997).
The defendant also argues that, as a consequence of his medical condition, his statement to Detective Semper should be suppressed because it was involuntary. The defendant points to Mincey v. Arizona, 437 U.S. 385, 401-02, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) and urges the court to find that the defendant's medical condition caused his will to be overborne. While the defendant may have been in a somewhat weakened physical condition, there is sufficient evidence of voluntary conduct that persuades the court that Mincey, supra, is inapposite. See State v. Roseboro, 221 Conn. 430, 604 A.2d 1286 (1992).
As noted in the foregoing discussion regarding the defendant's waiver of his Miranda rights, medical evidence presented by those involved directly in the defendant's care demonstrates indicia of voluntariness. The defendant was alert, able to follow commands, able to request assistance with his bed, and request water. He was able to communicate. He was sitting upright in his bed. The evidence does not demonstrate that the medication administered earlier to the defendant had an adverse effect on his ability to think rationally or rendered him incapable of freely intending to engage in a conversation with Detective Semper. The defendant had stopped receiving " short acting" Propofol and Fentanyl at least twenty to thirty minutes prior to the time of his extubation, which occurred at 11:20 a.m. on July 6, 2015. Semper arrived in the room at approximately 12:55 p.m., and didn't engage the defendant in questioning for at least ten minutes after that. The defendant did not receive additional pain medication until 3:45 p.m. Andrea Gaskins was able to converse with the defendant about spiritual matters.
Additionally, Officer Buller's testimony regarding the substance of the defendant's oral statements to Dr. Solomon was intertwined not only with the issues raised by the defendant regarding the existence of a psychiatrist-patient privilege, but also with this precise subset of voluntariness. Dr. Solomon noted that the defendant was alert, and oriented, and appropriately responsive to her questions. The evidence, and the reasonable and logical inferences therefrom, demonstrates that her interview with the defendant occurred not long after Detective Semper finished with his interview. The substance of the defendant's statements to Dr. Solomon, as recounted by Officer Buller, reflects that the defendant communicated coherently and rationally. His responses and communications had a contextual relationship. There is no evidence that at any point prior to Dr. Solomon's interview, and following the defendant's extubation, the defendant manifested to medical staff actually present with him, or to police, incoherence or confusion in his communications. See Burns v. State, 584 So.2d 1073 (Fla.Dist.Ct.App. 4th Dist. 1991). While not necessarily dispositive, said evidence from Buller tends to support a determination that his physical condition did not make his oral statements to Detective Semper involuntary.
Moreover, as previously discussed, the defendant demonstrated a capacity to resist the police by requesting that the video recorder being used by officer Buller be turned off.
Finally, State's Exhibit Twelve depicts the defendant clearly raising his right arm to " shake hands" with Detective Semper at the conclusion of the interview. The court is not persuaded that as a result of his medical condition or the administration of medication, that he was so enfeebled that his will was overborne and as a result, his oral statements or gestures to Detective Semper were involuntary. State v. Roseboro, supra, 443-44.
E
C.G.S. § 54-1o
The defendant claims that the failure of the police to make a complete " audiovisual" recording of the defendant's statement pursuant to C.G.S. § 54-1o(b) requires the defendant's oral statement and partial recording of said statement to be suppressed.
The statute reads in relevant part as follows:
An oral, written or sign language statement of a person under investigation for or accused of a capital felony or a class A or B felony made as a result of a custodial interrogation at a place of detention shall be presumed to be inadmissible as evidence against the person in any criminal proceeding unless: (1) An electronic recording is made of the custodial interrogation, and (2) such recording is substantially accurate and not intentionally altered.
The term " place of detention" is specifically defined in the statute in C.G.S. § 54-1o(4) as follows:
" Place of detention " means a police station or barracks, courthouse, correctional facility, community correctional center or detention facility.
According to C.G.S. § 1-2z, " the meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship of other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra textual evidence of the meaning of the statute shall not be considered."
Despite the plain and unambiguous language in C.G.S. § 54-1o defining " place of detention, " the defendant urges the court to broaden its scope to include the defendant's hospital room. The court declines to interpret the statute beyond the purview of its plain meaning. Had the legislature intended to expand the scope of the statute by including the words hospital room, " or any other building or room where a person is in custody, " it could have done so.
As a result, the court concludes that the statute is inapplicable to the present case.
A portion of the interview was, however, the subject of an " audiovisual" recording.
F
Whether a Psychiatrist-Patient Privilege Existed
The defendant asserts that the defendant's statements to Dr. Solomon " are protected by the psychiatrist-patient privilege and are therefore inadmissible because [the defendant] did not voluntarily or expressly waive the privilege."
As our Supreme Court has repeatedly noted, no privilege existed at common law for communications made by a patient to a physician. Edelstein v. Dept. of Public Health & Addiction Services, 240 Conn. 658, 662, 692 A.2d 803 (1997); Zeiner v. Zeiner, 120 Conn. 161, 167, 179 A. 644 (1935). The legislature partially abrogated this common-law rule in 1961 when it created a psychiatrist-patient privilege; see Public Acts 1961, No. 61-529, codified as General Statutes (Rev. to 1966) § 52-146a; which is now codified as amended in § § 52-146d through 52-146j of the General Statutes. See Ficara v. Ficara, 150 Conn. 689, 690 n.1, 185 A.2d 474 (1962) (noting that " [the plaintiff's] case was tried and went to judgment before the effective date of § 52-146a, which to some extent modifies our common-law rule according no privilege to information acquired by a physician in a professional capacity" [citing Zeiner v. Zeiner, supra, 167]). Pursuant to this statutory scheme, '[t]he people of [our] state enjoy a broad privilege in the confidentiality of their psychiatric communications and records." (Internal quotation marks omitted.) Falco v. Institute of Living, 254 Conn. 321, 328, 757 A.2d 571 (2000). " [Section] 52-146e spreads a veil of secrecy over communications and records relating to the diagnosis or treatment of a patient's mental condition. With certain exceptions not relevant to the issue before the court, the statute provides that no person may disclose or transmit any communications and records . . . to any person, corporation or governmental agency without the consent of the patient or his authorized representative. [General Statutes § 52-146e(a)]." (Internal quotation marks omitted.) Freedom of Information Officer, Dept. of Mental Health & Addiction Services v. Freedom of Information Commission, 318 Conn. 769, 791, 122 A.3d 1217 (2015). " [T]he principal purpose of [this] privilege is to give the patient an incentive to make full disclosure to a physician in order to obtain effective treatment free from the embarrassment and invasion of privacy which could result from a doctor's testimony." (Internal quotation marks omitted.) Falco v. Institute of Living, supra, 328, citing State v. White, 169 Conn. 223, 234-35, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975).
A person who claims a communication is privileged under the statute has the burden to demonstrate the information is protected. Babcock v. Bridgeport Hospital, 251 Conn. 790, 848, 742 A.2d 322. If the existence of a privilege is proven, its effect is to allow the person claiming the privilege to prevent testimony in the absence of a statutory exception. Privilege addresses a person's right not to have another testify as to certain matters as part of a judicial process. 81 Am.Jur.2d Witnesses § 274 (2004). " [B]ecause testimonial privileges prevent full disclosure of the truth, they are to be strictly construed." State v. Mark R., 300 Conn. 590, 598, 17 A.3d 1 (2011). The evidence demonstrates that Officer Buller was present in the defendant's hospital room during the defendant's conversation with Dr. Solomon. Dr. Solomon herself acknowledged the presence of a police officer at the time of her interview with the defendant. The issue thus becomes whether the presence of a third party precludes the defendant from asserting the psychiatrist-patient privilege.
In the context of the common-law attorney-client privilege, only communications " made in confidence" are protected, and, thus, " statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality." State v. Gordon, 197 Conn. 413, 424, 504 A.2d 1020 (1985). Connecticut Appellate courts have held that the same expectation of confidentiality test applicable to the attorney-client privilege also applies in the context of the psychiatrist-patient privilege.
In State v. White, supra, 169 Conn. 223, the Supreme Court considered whether admission of testimony at the defendant's probation revocation hearing regarding his court-ordered stay at a drug rehabilitation center violated the psychiatrist-patient privilege. The court held that it did not, for two reasons. First, the court concluded that, because there was a more specific statute in place explicitly authorizing disclosures in this context by physicians at drug rehabilitation centers, that statute was controlling. State v. White, supra 233-34. The court additionally concluded that, this more specific statute aside, the defendant was nevertheless precluded from asserting the psychiatrist-patient privilege because he could not have had any reasonable expectation of confidentiality. Id., 234. In this regard, the court held that " a patient may claim the privilege of confidentiality between himself and his physician only if he had a justified expectation that his communications would not be publicly disclosed; the purpose of the privilege is to give the patient an incentive to make full disclosure to a physician in order to obtain effective treatment free from the embarrassment and invasion of privacy which could result from a doctor's testimony." Id., 234-35. The court ultimately concluded that, under the circumstances in that case, " the defendant would have no expectation of confidentiality since he admitted in open court that he was drug dependent; was publicly ordered to [the rehabilitation center] for treatment; and knew that court revocation awaited him in the event he failed to comply with the conditions of probation." Id., 235; see also Hopkins v. Balachandran, 146 Conn.App. 44, 57, 76 A.3d 703 (2013) (acknowledging that, " [i]n the context of the psychiatrist-patient privilege, our Supreme Court has held that patient may claim the privilege of confidentiality between himself and his physician only if he had a justified expectation that his communications would not be publicly disclosed" [internal quotation marks omitted]); Cabrera v. Cabrera, 23 Conn.App. 330, 340-41, 580 A.2d 1227 (Noting, in context of related statutory psychologist-patient privilege, that " [w]hile it is true that where a disclosure to a physician is made 'publicly and freely' in the presence of a third person that communication is generally not considered privileged, the presence of a third person is not a waiver if that person is present to aid the patient . (Emphasis added.) The presence of a third person for that purpose does not demonstrate the patient's intent to renounce the secrecy to which she is statutorily entitled."), cert. denied, 216 Conn. 828, 582 A.2d 205 (1990); see e.g., id., 341 (presence of third party at patient's counseling session with psychologist " [could not] reasonably be said to be public and free disclosure evincing an intent to waive confidentiality" where third party was patient's then-husband was present to aid in the treatment).
The General Assembly's failure to legislatively abrogate White, despite several opportunities to do so; see Public Acts 1982, No. 82-160, § § 64-65 (amending both provisions); Public Acts 1989, No. 89-154, § 2 (amending § 52-146d); is indicative of the legislature's approval of the Supreme Court's interpretation of the psychiatrist-patient privilege. State v. Courchesne, 296 Conn. 622, 717, 998 A.2d 1 (2010) (" [U]nder the doctrine of legislative acquiescence, [the court] may infer that the failure of the legislature to take corrective action within a reasonable period of time following a definitive judicial interpretation of a statute signals legislative agreement with that interpretation . . . Although [the court is] aware that legislative inaction is not necessarily legislative affirmation . . . [it] also presume[s] that the legislature is aware of [the court's] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation." [Citation omitted; internal quotation marks omitted.])
The court concludes after an analysis of the following Appellate Court decisions, that no psychiatrist-patient privilege arises with respect to a communication where the patient had no " justified expectation that [these] communications would not be publicly disclosed." State v. White, supra, 169 Conn. 234. In this respect, the privilege is similar to the attorney-client privilege and the clergy-penitent privilege. See State v. Cascone, 195 Conn. 183, 186, 487 A.2d 186 (1985) (" statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality"); State v. Mark R., 300 Conn. 590, 598, 17 A.3d 1 (2011) (noting, in context of clergy-penitent privilege under General Statutes § 52-146b, that " [t]he presence of third parties generally destroys the confidentiality of a communication, precluding a claim of privilege"). Thus, just as with a claim of attorney-client privilege, a justified expectation of confidentiality is an essential element of a claim of psychiatrist-patient privilege. PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 330-31, 838 A.2d 135 (2004) (" One (" One of the essential elements of the claim of privilege between attorney and client is that the communication be confidential . . . Statements made in the presence of a third party, on the other hand, are usually not privileged because there is then no reasonable expectation of confidentiality." [Citation omitted; internal quotation marks omitted.]) Therefore, if this element is not met, the court need not consider whether the patient may have waived the privilege, for one cannot waive a privilege one never had.
" In evaluating claims of privilege, [the court] assess[es] the confidentiality of a communication according to a standard of objective reasonableness . . . Under this standard, a communication is confidential if, at the time of the communication, the communicator could have had a reasonable expectation of confidentiality." (Citation omitted, internal quotation marks omitted.) State v. Mark R., supra, 300 Conn. 599. As acknowledged by the defendant at oral argument on the motion, unless there is an objectively reasonable expectation of confidentiality at the time of a communication, the communication does not qualify for the assertion of an evidentiary privilege.
The court credits the testimony of Officer Buller that he twice offered to leave the defendant's room once Dr. Solomon entered the room, identified herself, and began speaking with the defendant. Dr. Solomon confirmed the presence of a police officer. Buller was not present to aid in the treatment of the defendant. When Buller asked the defendant the first time whether the defendant wanted him to leave, the defendant replied " no." Shortly thereafter Buller asked the defendant again whether " he was sure he didn't want me to leave." The defendant replied " anything he had to say to her, he could say in front of me." The court finds, therefore, that the defendant could not have an objectively reasonable belief that his statements to Dr. Solomon would remain confidential. State v. Mark R., supra, 300 Conn. 599. This conclusion is buttressed by the fact that Buller was a police officer attired in full uniform. Prior to his consultation with Dr. Solomon, the defendant had already been interviewed by Detective Semper in the presence of Buller regarding the circumstances of his son's death. It is not objectively reasonable for the defendant to believe that following a police interview regarding the circumstances of Aaden's death, that communications to Dr. Solomon in the presence of a third party who is a police officer would remain confidential.
There is no evidence the defendant asked Buller to leave at any point during his conversation with Dr. Solomon, and Dr. Solomon never told the defendant that her consultation with him was confidential. The defendant by his words and conduct did expressly forsake any claim of confidentiality with respect to his conversation with Dr. Solomon. The defendant has failed to meet his burden of demonstrating these communications were privileged because he lacked an objectively reasonable expectation that his inculpatory statements would be held in confidence. He has thus failed to establish the psychiatrist-patient privilege protects these statements from disclosure. See also generally Freeman v. Grubbs, 134 Fed.Appx. 233, 237 (2005) (" . . . [B]ecause Freeman made the statements in the presence of officers who clearly were not involved in the medical diagnosis or treatment, Freeman did not intend for his comments to be confidential"); State v. Phillips, 213 N.J.Super. 534, 541, 517 A.2d 1204 (1986) (" Had the defendant intended to maintain confidentiality when he spoke to the doctors [or nurses] he should have asked the officer to move away, since the officer's presence was not necessary for treatment").
As previously discussed, in determining whether the presence of a third party vitiates the claim of privilege, the relevant inquiry is whether in light of the circumstances attendant to the communications, the patient had an objectively reasonable expectation of confidentiality. In the context of the clergyman-penitent privilege, when the Supreme Court observed the fact that the clergyman did not indicate to the penitent that their communication would be confidential, the court considered this fact as mitigating against a reasonable expectation of confidentiality. See State v. Mark R., supra, 300 Conn. 599 (defendant lacked reasonable expectation that his inculpatory statements to clergyman would be held in confidence where " the meeting [between the defendant and the clergyman] lacked many of the indicia of confidentiality, " in part because clergyman " neverstated that the meeting was confidential").
The court also observes when the legislature has intended to require that the patient be informed of the nonconfidentiality of an imminent communication, it has made this intent explicit. Among the exceptions to the general nondisclosure rule in § 52-146f is a carve-out for communications and records made in connection with a court-ordered psychiatric examination. That exception provides: " Communications made to or records made by a psychiatrist in the course of a psychiatric examination ordered by a court or made in connection with the application for the appointment of a conservator by the Probate Court for good cause shown may be disclosed at judicial or administrative proceedings in which the patient is a party, or in which the question of his incompetence because of mental illness is an issue, or in appropriate pretrial proceedings, provided the court finds that the patient has been informed before making the communications that any communications will not be confidential and provided the communications shall be admissible only on issues involving the patient's mental condition." General statutes § 52-146f(4). If the legislature had intended to require that a patient be apprised of the potential nonconfidentiality of future communications in any other contexts beyond that described in the specific exception, it could have easily done so. In the absence of a more broadly applicable provision requiring a patient be warned of the consequences of making a given communication, " [t]he common-law rule . . . that everyone is presumed to know the law" prevails. (Internal quotation marks omitted.) State v. Orr, 291 Conn. 642, 679 n.10, 969 A.2d 750 (2009) (Palmer, J., concurring and dissenting); see, e.g., id., 680 n.10 (" clients of social workers are presumed to know that, under [General Statutes] § 52-146q(c)(2), a social worker is authorized to disclose certain threats against third parties and, therefore, that those threats are not made in confidence"). The law is that communications made in the presence of third parties are generally not confidential and therefore do not give rise to a privilege. A person consulting with a psychiatrist in the presence of a third party is therefore presumed to know that the third party's presence may prevent him from later asserting the psychiatrist-patient privilege.
At oral argument, the defendant also appeared to suggest that, while he recognized as a general principle that if an accused " consented to the officer's presence" while he spoke to a psychiatrist, such consent would occasion a lack of confidentiality, if the defendant " never waived his right to remain silent" while Dr. Solomon interviewed him in the presence of Officer Buller, the statements to Dr. Solomon are inadmissible under Miranda . The defendant did not direct the court to any authority in support of this claim.
Preliminarily, Dr. Solomon's involvement with the defendant was not the result of a court-ordered examination. On the contrary, Dr. Solomon arrived to speak with the defendant as the result of a consultation referral submitted by another physician at Hartford Hospital. There is no evidence of police involvement or interference in that process. " Miranda rights protect suspects in custody from being coerced into give incriminating statements against themselves by the enforcement officials . . . however Miranda does not apply to incriminating statements made to private persons in the absence of police subterfuge or intimidation." U.S. v. Romero, 897 F.2d 47, 52 (1990). (Internal citations omitted.) In Romero, supra, the defendant sought to suppress a post-arrest statement he made to a nurse recounting the events that resulted in his treatment at a hospital. The nurse was a private party during the routine performance of medical duties without any indication of law enforcement influence. " Since [the defendant's] statements were made to a private person, not law enforcement officers or their agents, no warnings need have been given." Id. At 52. (Internal citation omitted.) It bears repeating that there is no evidence that Officer Buller questioned the defendant while Dr. Solomon completed her interview, or that he " followed-up" on any of the areas discussed during her interview. See also Kincaid v. Bear, 2016 WL 6892926 (September 14, 2016); People v. Walker, 29 Cal.App.3d 448, 105 Cal.Rptr. 672 (1972) (" Miranda applies only to custodial interrogation by a law enforcement officer, or an agent of such official, and does not apply to questioning by the laity"); State v. Alexander, 197 Conn. 180, 496 A.2d 486 (1985) (A necessary predicate to defendant's fifth amendment claim is a determination that the statements the defendant seeks to suppress were the result of an interrogation by a private citizen acting as a police officer or as an agent of the police).
Thus, this is not a situation within the scope of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981).
Based on the foregoing, the defendant's Miranda claim with respect to Dr. Solomon must fail.
G
Determination of Whether Written Consent was Valid
" In general, federal and state constitutional and statutory rights can be waived . . . Waiver is the voluntary, knowing and intelligent relinquishment of a right of privilege . . . Waiver is a question of fact for the trier . . . The individual conduct of both parties is relevant in determining whether a waiver has occurred.: (Citations omitted; internal quotation marks omitted.) Hensley v. Commissioner of Transportation, 211 Conn. 173, 178-79, 558 A.2d 971 (1989); see, e.g., id., 179-80 (engaging in waiver analysis in determining whether plaintiff in reassessment appeal before trial referee waived statutorily mandated requirement that referee view land at issue). In State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979), our Supreme Court confirmed that this general waiver standard is applicable in determining the effectiveness of a patient's consent to waive confidentiality under § 52-146e. Id., 629-30 (a waiver of the psychiatrist-patient privilege " must be the intelligent relinquishment of a know right"). Citing its decision in State v. Kearney, 164 Conn. 135, 139, 318 A.2d 100 (1972)--a case involving the waiver of Miranda rights--the court noted that " [a] necessary element to waiver is the requisite knowledge of the right and a waiver presupposes a full knowledge of an existing right or privilege and something done designedly or knowingly to relinquish it." State v. Toste, supra, 630. This knowing and voluntary requirement for waiver of the psychiatrist-patient privilege has been repeatedly affirmed in subsequent appellate decisions. See State v. Kemah, 289 Conn. 411, 432, 957 A.2d 852 (2008) (" a waiver will be given effect when it is knowing and voluntary").
" [A] consent given to waive confidentiality shall specify to what person or what agency the information is to be disclosed and to what use it will be put." Kemah, 289 Conn. 427. In Kemah, supra, the witness expressly limited disclosure to a single, identified party, and there was no evidence the witness intended a broader waiver.
The State and the defendant have both referred to State's Exhibit Three as a " waiver" form.
However, as noted earlier, the court need not determine whether the " waiver" at issue satisfies the foregoing general legal principles because of its determination that the defendant failed to demonstrate an objectively reasonable expectation of confidentiality with respect to the communications at issue. As the defendant acknowledged only as a general principle during argument, in essence if the communications at issue were not confidential, there is no privilege that can be asserted. If there is no privilege that can be asserted, there is, therefore, nothing to " waive." If there is nothing to " waive, " it is no longer relevant whether the waiver in question is valid since a waiver under these circumstances is unnecessary. As a result therefore, of the court's determination, it need not address any of the defendant's myriad and interrelated " waiver" claims. Therefore, for the foregoing reasons, the Motion to Suppress is denied.
The issue in State v. Orr, supra, 291 Conn. 642, was whether the dangerous client exception to the social worker-client confidentiality rule established in General Statutes § 52-146q(c)(2) extends to in-court testimony. The court ultimately decided that it does not. The particular exception at issue in that case provides in relevant part: " Consent of the person shall not be required for the disclosure or transmission of such person's communications and records in the following situations as specifically limited . . . (2) Communications and records may be disclosed when a social worker determines that there is a substantial risk of imminent physical injury by the person to himself or others . . ." General Statutes § 52-146q(c). Although acknowledging that this provision " is silent . . . as to whether this exception extends to permitting the social worker to testify in court proceedings"; State v. Orr, supra, 653; the court nevertheless determined that this silence did not render the statute ambiguous. This conclusion hinged on the fact that two of the other exceptions provided by § 52-146q(c) specifically referenced court proceedings. State v. Orr, supra . The court ultimately held that this exception was not intended to permit in-court testimony, noting that, " [i]f the legislature wanted to make specific allowances for the disclosure of otherwise confidential communications between social workers and their clients in court proceedings, it could have done so, and, in fact, has already done so in two other subdivisions of § 52-146q(c)." State v. Orr, supra, 656. The Orr court further bolstered its conclusion by noting that § 52-146f, " which establishes the eight exceptions for the psychiatrist-patient privilege created in § 52-146e, epitomizes the legislature's ability to make explicit allowances for testimonial exceptions in the language of the statute itself." State v. Orr, supra, 291 Conn. 659. " Importantly, § 52-146f contains the same instruction that each exception be read 'as specifically limited . . . In accordance with this instruction, subsections (4) and (5) of § 52-146f create express exceptions to the evidentiary confidentiality for in-court testimony by the psychiatrist. Subsection (2) of § 52-146f, on the other hand, creates the analogous dangerous patient exception for the psychiatrist-patient privilege and contains no such explicit testimonial allowance . . . Subsection (2) is one of eight exceptions to the psychiatrist-patient confidentiality statute listed in § 52-146f. Two of those eight exceptions create explicit exceptions for in-court testimony. See General Statutes § 52-146f(4) and (5). Six of the exceptions do not create such exceptions, and have not been interpreted as doing so one way or the other. See General Statutes § 52-146f(1), (2), (3), (6), (7) and (8). Accordingly, § 52-146f is not only structured precisely like § 52-146q(c), but also has been interpreted in a similar manner. It is a prime example of the legislature's ability to make and, indeed, history of making, explicit exceptions for in-court testimony with regard to the greater evidentiary confidentiality statutes." (Footnotes omitted.) State v. Orr, supra, 659-60. In the present case, since the defendant did not have a reasonable expectation that his communications with the psychiatrist would be confidential, these communications fall outside the province of § 52-146d et seq., and, consequently, the decision in Orr does not prevent the psychiatrist from testifying at the defendant's trial. Rather, Orr would only be applicable if the privilege did in fact arise and the state was trying to admit the psychiatrist's testimony pursuant to the dangerous patient exception in § 52-146f(2). In that scenario, Orr would likely have to be extended to the psychiatrist-patient context due to the large extent to which the Orr court relied on § 52-146f. Dr. Solomon was not permitted to testify as to the substance of the defendant's statements during the hearing. Additional clarity by the court with respect to the potential ramifications of State v. Orr, 291 Conn. 642, 969 A.2d 750 (2009) to the present case was desired prior to allowing such testimony.
Vitale, Judge