State v. Smith

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 STATE v. SMITH—CONCURRENCE

McDONALD, J., concurring. I agree with the majority
that the public safety exception to the dictates of
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), applied to the present case because
the police officers had a legitimate concern about
whether the defendant, Dante Smith, was armed, and
whether the weapons identified by the victim, Justin
Molinaro, could have been disposed of in a place where
a child or other civilian might find them.1 Here, however,
well after the victim provided the police with an account
of the attack and was transported for medical treat-
ment, the defendant returned to the scene to speak
with the police and was handcuffed before questioning
commenced. One of the questions thereafter posed to
the defendant was, ‘‘What happened?’’ I cannot agree
that this question fell within the scope of the narrow
public safety exception. Neither the majority’s opinion
nor my own research reveals a case in which any other
court has concluded that such an open-ended question
was properly ‘‘circumscribed by the exigency which
justifies it’’; New York v. Quarles, 467 U.S. 649, 658, 104
S. Ct. 2626, 81 L. Ed. 2d 550 (1984); under circumstances
akin to the present case. The majority’s approval of
such a question under the facts of this case is an unprec-
edented, and unwarranted, expansion of this limited
exception to Miranda. I would conclude that the trial
court improperly failed to suppress the defendant’s
inculpatory narrative that this impermissibly broad
question predictably elicited. Because, however, the
admission of the defendant’s statements at the scene
was harmless error, I concur in the judgment.
It is well settled that pre-Miranda questions ‘‘may
not be investigatory in nature or designed solely to
elicit testimonial evidence from a suspect.’’ (Internal
quotation marks omitted.) United States v. Estrada, 430
F.3d 606, 612 (2d Cir. 2005). Statements ‘‘are testimonial
when the circumstances objectively indicate that there
is no . . . ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prose-
cution.’’ Davis v. Washington, 547 U.S. 813, 822, 126 S.
Ct. 2266, 165 L. Ed. 2d 224 (2006).
As the majority purportedly recognizes, public safety
gives rise to a narrow exception to the requirement
that Miranda warnings be given before a custodial
interrogation takes place. New York v. Quarles, supra,
467 U.S. 658; see also Oregon v. Elstad, 470 U.S. 298,
317, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985) (reaffirming
narrow scope of exception). The rationale articulated
by the United States Supreme Court for this exception
is that ‘‘the need for answers to questions in a situation
posing a threat to the public safety outweighs the need
for the prophylactic rule protecting the [f]ifth [a]mend-
ment’s privilege against self-incrimination.’’ New York v.
Quarles, supra, 657. Significantly, the court in Quarles
explained that the ‘‘exception will not be difficult for
police officers to apply because in each case it will be
circumscribed by the exigency which justifies it. . . .
[P]olice officers can and will distinguish almost instinct-
ively between questions necessary to secure their own
safety or the safety of the public and questions designed
solely to elicit testimonial evidence from a suspect.’’
(Emphasis added.) Id., 658–59; see, e.g., id., 659 (‘‘The
facts of this case clearly demonstrate that distinction
and an officer’s ability to recognize it. [The officer]
asked only the question necessary to locate the missing
gun before advising [the] respondent of his rights.’’).
In determining whether a particular question is justi-
fied under the public safety exception, some courts
have focused on the narrow scope of the exception, as
well as the application of the exception in Quarles,
and have determined that the question itself must be
narrowly tailored to the actual safety concern. See,
e.g., United States v. Mengis, Docket No. 04-CR-508-
BR, 2006 WL 2552993, *3 (D. Or. August 31, 2006); People
v. Cressy, 47 Cal. App. 4th 981, 989, 55 Cal. Rptr. 2d
237 (1996), review denied, 1996 Cal. LEXIS 6214 (Cal.
October 30, 1996); State v. Johnson, 46 Kan. App. 2d
387, 395, 264 P.3d 1018 (2011), review denied, 293 Kan.
1111 (2012); State v. Strozier, 172 Ohio App. 3d 780,
791, 876 N.E.2d 1304 (2007), review denied, 116 Ohio
St. 3d 1506, 880 N.E.2d 482 (2008); State v. Spotted Elk,
109 Wn. App. 253, 260, 34 P.3d 906 (2001). For example,
one court concluded that an officer’s question to an
arrestee, ‘‘Do you have anything on your person I need
to be concerned about?’’; (internal quotation marks
omitted) State v. Spotted Elk, supra, 256; was impermis-
sible because it could elicit information pertaining not
only to items that could injure the officer conducting
the search (weapons, drug needles, etc.) but also to
contraband, like drugs. Id., 260.
I agree with the majority’s decision not to adopt this
narrowly tailored approach. In my view, such an
approach would impose an unrealistic burden on offi-
cers and ignore the exigent and unfolding nature of the
circumstances justifying the public safety exception.
Instead, I agree with the United States Court of Appeals
for the Second Circuit and other courts that have con-
cluded that questions ‘‘need not be posed as narrowly
as possible, because [p]recision crafting cannot be
expected in the circumstances of a tense and dangerous
arrest. . . . Thus, a question that plainly encompasses
safety concerns, but is broad enough to elicit other
information, does not necessarily prevent application
of the public safety exception when safety is at issue
and context makes clear that the question primarily
involves safety.’’ (Citation omitted; emphasis added.)
United States v. Estrada, supra, 430 F.3d 612; see also
United States v. Newton, 369 F.3d 659, 678 (2d Cir.)
(recognizing that ‘‘public safety questions are framed
spontaneously in dangerous situations’’ and that ‘‘[p]re-
cision crafting cannot be expected in such situations’’),
cert. denied, 543 U.S. 947, 125 S. Ct. 371, 160 L. Ed. 2d
262 (2004). The limiting principles under this standard
ensure that public safety is not a guise for an end run
around Miranda while adequately accommodating the
realities of the circumstances in which such concerns
are present.
Although the majority purports to rely on the stan-
dard set forth by the Second Circuit, a review of public
safety cases from that circuit and others demonstrates
that the majority has not faithfully applied it. In those
cases, courts carefully considered the focus of each
question to determine whether it was framed in a man-
ner that was more likely to elicit incriminating informa-
tion rather than information related to the public safety
concern at issue. See, e.g., United States v. Reyes, 353
F.3d 148, 153 (2d Cir. 2003) (The court cited with
approval the United States Court of Appeals for the
Tenth Circuit, which ‘‘found that the officers’ focused
questions addressed a real and substantial risk to the
safety of the officers and were not designed to acquire
incriminating evidence [but] solely to protect the offi-
cers, as well as the arrestee, from physical injury. . . .
[T]he risk of incrimination is limited to [nonrespon-
sive] answers [such as in this case, when the suspect
provides more information than requested] . . . .’’
[Citations omitted; emphasis altered; internal quotation
marks omitted.]).
A few examples demonstrate the reasoning applied
in those cases. In United States v. Newton, supra, 369
F.3d 663, 679, the defendant, a convicted felon on
parole, was asked whether he had any ‘‘ ‘contraband’ ’’
in his house. In discussing Newton in a subsequent case,
the court noted that it found this question permissible
because, ‘‘while the officer’s question about ‘contra-
band’ could include items not presenting immediate
safety concerns, the question plainly encompassed
weapons, and the defendant’s response indicated that
he understood it along those lines.’’ United States v.
Estrada, supra, 430 F.3d 612. In United States v. Khalil,
214 F.3d 111, 121 (2d Cir.), cert. denied sub nom. Mezer
v. United States, 531 U.S. 937, 121 S. Ct. 326, 148 L.
Ed. 2d 262 (2000), the defendant was asked, inter alia,
whether he had intended to kill himself in detonating
a bomb that he had built. The court concluded that this
question fell within the scope of the exception because
it ‘‘had the potential for shedding light on the bomb’s
stability.’’ Id. In United States v. Reyes, supra, 353 F.3d
150–51, before the police handcuffed or conducted a
patdown search of the defendant, they asked him
whether he had ‘‘ ‘anything on him’ ’’ or ‘‘ ‘anything
inside [his] pocket’ ’’ that could hurt the officers.
Although the defendant responded that he had drugs
in his vehicle, the court concluded that ‘‘the arresting
officer’s questions were sufficiently limited in scope
and were not posed to elicit incriminating evidence. See
[New York v. Quarles, supra, 467 U.S. 658–59]. Police
cannot be faulted for the unforeseeable results of their
words or actions.’’ United States v. Reyes, supra, 154.
In United States v. Simmons, 661 F.3d 151, 153–54 (2d
Cir. 2011), the officers, who had escorted a complainant
into his apartment to retrieve his belongings after the
complainant reported that his roommate, the defendant,
had displayed a gun during an argument a few days
earlier, asked the defendant, inter alia, whether he had
had a dispute with the complainant. The court con-
cluded that this question was permissible because it
‘‘had the potential to shed light on the volatility of the
situation and the extent to which [the defendant] har-
bored potentially violent resentment toward [the com-
plainant],’’ whose presence the officers sought to
secure. Id., 156. In sum, in all of these cases, although
the question was broader than necessary to elicit infor-
mation solely related to the public safety concern, it
‘‘plainly encompasse[d]’’ that concern, and the ‘‘context
[made] clear that the question primarily involve[d]
safety.’’ (Emphasis added.) United States v. Estrada,
supra, 612.
Those questions stand in stark contrast to the open-
ended question in the present case: ‘‘What happened?’’
Although such a question might be proper under limited
circumstances, this was not such a case. To understand
why, it is useful to examine cases in which courts have
been confronted with a similarly broad, generalized
question.
In Bowling v. State, 289 Ga. 881, 882, 717 S.E.2d 190
(2011), an officer providing back up at the scene of
a shooting asked a suspect ‘‘[w]hat happened?’’ The
Supreme Court of Georgia concluded that this ‘‘inquiry
did not fall within the public safety exception. When
[the officer] arrived, the other officers already under-
stood the general nature of the situation, and as soon
as [the officer] arrived, he heard [the defendant] yelling
that he had shot [the victim] and that it was an accident.
Under the circumstances, the existing exigency facing
officers was locating the gun, and [the officer’s] broader
inquiry about what happened was not focused on this
issue. Compare [New York v. Quarles, supra, 467 U.S.
659] (officer ‘asked only the question necessary to
locate the missing gun’).’’ Bowling v. State, supra, 889;
see also People v. Olachea, Docket No. E040239, 2007
WL 1874751, *6, 10 (Cal. App. June 29, 2007) (‘‘ ‘[w]hat
do you got going on here?’ ’’ was not permissible ques-
tion because it was ‘‘a broad question calling for an
infinitely variable response’’); People v. Libran, Docket
No. 2006QN062774, 2007 WL 543451, *3 (N.Y. Misc. Jan-
uary 18, 2007) (officer’s question of ‘‘ ‘what happened’ ’’
deemed impermissible) (decision without published
opinion, 14 Misc. 3d 1234[A], 836 N.Y.S.2d 502 [2007]).
 By contrast, courts have recognized that public safety
demands may justify a more open-ended question when
the nature of the threat is indeterminate, and the exigent
circumstances are still unfolding while the officers are
on the scene. In United States v. Williams, 181 F.3d
945, 953 (8th Cir. 1999), cited with approval by the
Second Circuit; see United States v. Reyes, supra, 353
F.3d 152; the United States Court of Appeals for the
Eighth Circuit sanctioned an inquiry to an arrested drug
dealer in his apartment—‘‘Is there anything we need to
be aware of?’’—that prompted the defendant to respond
that he had a gun in the closet. (Internal quotation
marks omitted.) United States v. Williams, supra, 953.
The court in Williams explained that although the ques-
tion ‘‘did not specifically refer to weapons or safety
concerns,’’ it plainly encompassed such matters. Id.,
953 n.13. ‘‘The fact that the question was also broad
enough to elicit other information [did] not prevent
application of the public safety exception when safety
was at issue.’’ Id. ‘‘[T]he officers could not have known
if any armed individuals were present in the apartment
or preparing to enter the apartment within a short
period of time. Similarly, the officers could not have
known whether other hazardous weapons were present
in the apartment that could cause them harm if they
happened upon them unexpectedly or mishandled them
in some way.’’ (Footnote omitted.) Id., 953–54; see also
United States v. McKee, F. Supp. 3d , Docket
No. 3:15-cr-007-RCJ-VPC, 2016 WL 320124, *6 (D. Nev.
January 26, 2016) (officers’ questions to defendant,
whose wife was found stabbed short distance from their
home, including ‘‘ ‘what happened?’ ’’ were permissible
because at that point officers ‘‘did not know what had
happened, whether a perpetrator might be lurking about
the home, or whether weapons were in the area’’); State
v. Vickers, 159 Ariz. 532, 535, 539, 768 P.2d 1177 (1989)
(officer permissibly asked defendant, who had lit fire,
what happened and whether victim was dead in order
to make strategic plan as to which persons needed to
be rescued first who were endangered by fire); State
v. Santiago, Docket No. 01CA007798, 2002 WL 388901,
*1, 4 (Ohio App. March 13, 2002) (officers responding to
911 call who entered apartment and observed defendant
lying facedown covered in blood permissibly asked
what happened, because at that point in time ‘‘the offi-
cers did not know if there were other people involved,
who could still be in the apartment lying in wait, and
did not know the type and location of weapon used, if
any’’); State v. Kuloglija, Docket No. 65809-3-I, 2013
WL 616375, *4 (Wn. App. February 19, 2013) (‘‘[C]oncern
for victim safety and urgency to control a dangerous
situation necessitated [the officer’s] questions. When
[the officer] came across [the defendant], [the defen-
dant] was lying face down, covered in blood, and clearly
injured. . . . [The officer] testified that at that point,
he thought [the defendant] was another victim and he
‘didn’t know what was going on.’ . . . When he asked
[the defendant] what happened, there was an objec-
tively reasonable need to secure the scene and locate
other possible victims or a fleeing suspect.’’ [Footnote
omitted.]) (decision without published opinion, 173 Wn.
App. 1017 [2003]).
In the present case, the circumstances are akin to
Bowling, where the officers understood the nature of
the public safety threat but nevertheless asked an
impermissibly broad, open-ended question.2 See also
People v. Libran, supra, 2007 WL 543451, *2–3 (‘‘Unlike
a situation which is confusing or unfolding, [the officer]
arrived at the store after the crime had been committed.
[One of the store’s security guards] expressly implicated
the defendant. Although a police officer’s question of
‘what happened’ is often permissible as investigatory
to clarify the situation, in this case, [the officer] ‘tran-
scended the boundary between an attempt to clarify
the situation and an attempt to elicit a statement.’ ’’).
The majority implicitly concedes that the question
‘‘what happened’’ would be impermissible in isolation
because it relies on questions relating to weapons that
preceded that inquiry to provide the necessary nar-
rowing context. Even assuming that prior questions
may provide the requisite context, the majority’s
approach is unpersuasive under the circumstances of
the present case.
Simply put, the facts here tell a different story. The
victim had given a statement and had been transported
for medical treatment when the defendant returned
approximately forty or fifty minutes after the assault,
upon learning that the police were looking for him. The
officers initially told the defendant that ‘‘he was going
to be detained while [they] investigated [the] incident.’’
(Emphasis added.) The defendant was then asked ques-
tions to ascertain whether he had a weapon on him and
whether he knew where the weapons are. He responded
in the negative to both questions. It was after this
exchange that the officers asked what happened.
An objectively reasonable listener would not have
concluded that the latter question was focused on, or
even necessarily related to, the current location of the
weapons. Questions relating to the weapons had been
asked and answered. Those initial questions were stated
using the present verb tense. The broad question ‘‘what
happened’’ was phrased in the past tense. A reasonable
listener would have assumed from the expanded scope
and change of verb tense, as well as the fact that ques-
tions relating to weapons had been asked and answered,
that the police were shifting the discussion to a different
topic. Cf. Davis v. Washington, supra, 547 U.S. 828–29
(‘‘This is not to say that a conversation which begins
as an interrogation to determine the need for emergency
assistance cannot . . . evolve into testimonial state-
ments . . . once that purpose has been achieved. . . .
This presents no great problem. Just as, for [f]ifth
[a]mendment purposes, police officers can and will dis-
tinguish almost instinctively between questions neces-
sary to secure their own safety or the safety of the
public and questions designed solely to elicit testimo-
nial evidence from a suspect, New York v. Quarles,
[supra, 467 U.S. 658–59], trial courts will recognize the
point at which, for [s]ixth [a]mendment purposes, state-
ments in response to interrogations become testimo-
nial.’’ [Citations omitted; internal quotation marks
omitted.]). Consistent with the initial stated purpose of
his detention, the defendant reasonably would have
assumed that the officer’s question as to ‘‘what hap-
pened’’ was investigatory in nature, intended to elicit
a narrative of the assault. The defendant’s response
indicates that this is precisely how he understood the
question. Cf. United States v. Newton, supra, 369 F.3d
679 (citing defendant’s response indicating that he
understood question to encompass presence of weap-
ons as indicative that question was focused on public
safety); United States v. Reyes, supra, 353 F.3d 154
(deeming it significant that questions were not posed
in manner that would naturally elicit incriminating evi-
dence). Indeed, in response to his narrative, the officers
challenged the defendant’s account of the manner in
which the victim had been injured. Cf. United States
v. Reyes, supra, 154–55 (‘‘It is not without significance
that, after [the defendant] gave the incriminating
response about having drugs in his car, the officer asked
no further questions. The arresting officer’s disinclina-
tion to exploit the situation suggests that his question
was a reasonable attempt to insure his personal safety
in the midst of a search.’’ [Internal quotation marks
omitted.]).
I also am not persuaded that the fact that the victim
had informed the police that six people were involved
in the assault justified the broad question that elicited
the defendant’s inculpatory narrative. I begin with the
observation that, although an inference could be drawn
from the victim’s statement to the 911 operator that
some or all of the defendant’s accomplices may have
been armed with guns,3 the trial court’s opinion indi-
cates that it did not draw such an inference. Instead,
it appears to have credited the evidence only insofar
as it established the presence of a single gun, as the
court repeatedly and exclusively referred to ‘‘a gun.’’
‘‘Missing accomplices cannot be equated with missing
guns in the absence of evidence that the accomplice
presents a danger to the public ‘requiring immediate
action by the officers beyond the normal need expedi-
tiously to solve a serious crime.’ ’’ State v. Hazley, 428
N.W.2d 406, 411 (Minn. App. 1988), review denied, 1988
Minn. LEXIS 763 (Minn. September 28, 1988).
Nonetheless, even if we were to adopt that inference,
it would be impermissible to ask the defendant what
happened for two reasons similar to those previously
articulated. First, this question did not on its face or in
context plainly relate to the current whereabouts of
these accomplices.4 There are numerous instances in
which police officers have varyingly framed a question
to properly accomplish that end. See, e.g., United States
v. Johnson, Docket No. 03-40068-01-RDR, 2003 WL
22715856, *3 (D. Kan. September 9, 2003) (citing cases
in which questions were deemed permissible when sus-
pect was asked if he was alone, if anyone else was
inside dark building, where his companion was, and
where another suspect was located). In fact, it was
only in response to a specific question about the other
assailant identified by name by the victim that the defen-
dant indicated that this other person had not been
involved.
Second, in cases in which properly framed questions
were deemed justified to elicit information as to the
whereabouts or the number of accomplices, those
accomplices presented an objective and immediate
threat to the safety of the officers or members of the
public. See, e.g., Fleming v. Collins, 954 F.2d 1109, 1113
(5th Cir. 1992) (permissible for officers responding to
silent alarm in bank robbery to ask wounded defendant
encountered near bank who had been with him because
situation was still volatile and officer had reason to fear
for officers’ safety at time she asked question); United
States v. Johnson, supra, 2003 WL 22715856, *3 (permis-
sible for officer chasing suspects fleeing from bank
robbery into apartment complex to ask captured sus-
pect how many persons were involved and who they
were because ‘‘events were unfolding rapidly’’ and offi-
cer was unsure what dangers he faced from other sus-
pects); Howard v. Garvin, 844 F. Supp. 173, 175
(S.D.N.Y. 1994) (permissible to ask suspect how many
people were with him at scene of robbery while hos-
tages were being held because information was needed
for immediate public safety and questions did not relate
to what perpetrator had done, even though responses
were indicative of guilt); Hill v. State, 89 Md. App. 428,
433–34, 598 A.2d 784 (1991) (after apprehending two
of three robbery suspects who fled crime scene at resi-
dential complex, at least one of whom was in possession
of gun, it was permissible for police officer to ask where
third suspect was because situation was volatile, offi-
cers reasonably believed that third suspect could have
retaliated by opening fire, and armed suspect posed
danger to police team and to people who traversed in
area where robbery and flight had occurred); Common-
wealth v. Clark, 432 Mass. 1, 11, 13–14, 730 N.E.2d 872
(2000) (permissible for officer who arrived first at scene
of shooting after report that state trooper and civilian
had been shot to ask injured defendant whether he
was alone because question served to discover whether
there were other individuals nearby who might pose
risk to public safety when shooting took place near
residential neighborhood, civilians from neighborhood
had begun to gather near scene, and weapon had not
yet been found); People v. Adams, 225 App. Div. 2d 506,
640 N.Y.S.2d 37 (upon finding defendant and two of
potentially five accomplices in rear of warehouse that
they had just robbed, during which numerous shots had
been fired, officer’s inquiry as to how many perpetrators
there were and whether they had any guns was permissi-
ble because it was intended to clarify situation and not
to elicit admissions), appeal denied, 88 N.Y.2d 932, 647
N.Y.S.2d 166 (1996); People v. Ratliff, 184 App. Div. 2d
667, 668, 584 N.Y.S.2d 871 (1992) (‘‘With scores of peo-
ple outside the club where a robbery took place and the
defendant and one codefendant in custody, the question
posed to the defendant as to the number and where-
abouts of the remaining robbers was more for the pur-
pose of clarifying the situation and ascertaining for
safety reasons the location of possible weapons, than
to secure evidence of a crime . . . . The record further
demonstrates that the officer’s questioning of the defen-
dant about his codefendants was part of the continuous
action of apprehending the defendant, handcuffing him,
and escorting him to the police vehicle while the danger
to the public from his armed confederates had not yet
been eliminated . . . .’’ [Citations omitted; internal
quotation marks omitted.]).
In the present case, there is no evidence that, at the
time the officer questioned the defendant forty or fifty
minutes after the assault had occurred, his accomplices
posed a present or imminent risk of harm to the officers,
the public generally, or any person specifically other
than the victim, who was known to many or all of the
perpetrators. In fact, the officers’ conduct suggests the
contrary. One officer, describing the situation at the
time of the defendant’s return, indicated that, ‘‘[b]y this
time, the craziness of the scene had died down.’’ The
officers ‘‘were kind of milling around, doing a neighbor-
hood canvass.’’ Although neighborhood residents also
were ‘‘milling around,’’ there is no indication that the
police advised them to return to their homes. The fact
that the assailants had left the victim’s car running with
the door ajar indicated that the assailants had fled the
scene. Indeed, at the suppression hearing, the officers
repeatedly identified discarded weapons as the exigent
threat and never indicated that they believed that they
were in imminent danger.5 My research has not revealed
a single case in which the flight of a potentially armed
suspect, in and of itself, was deemed to justify such an
open-ended question. Indeed, the narrow public safety
exception to Miranda would largely swallow the rule
if this fact alone justified such a question.
Under these circumstances, it is manifestly unreason-
able to conclude that ‘‘[the] context makes clear that
the question primarily involve[d] safety’’; United States
v. Estrada, supra, 430 F.3d 612; and therefore was per-
missible under the public safety exception to Miranda.
I have grave concerns that the majority’s contextual
approach sanctions a pretextual approach—bootstrap-
ping public safety questions to purely investigatory
questions to make an end run around Miranda.6 Cf.
United States v. Simmons, supra, 661 F.3d 156 (‘‘[w]e
are not persuaded that this limited questioning was
prohibitively ‘investigatory in nature’ or a subterfuge
for collecting testimonial evidence’’). Accordingly, the
trial court improperly denied the defendant’s motion
to suppress his statement at the crime scene in response
to the question ‘‘[w]hat happened?’’
Nonetheless, I conclude that the admission of this
statement was harmless beyond a reasonable doubt.
The defendant’s crime scene statement was largely
redundant in light of his subsequent, more detailed
statement at the police station that was admitted into
evidence through the officer’s testimony who took the
statement. The defendant’s sole claim with regard to
harm is that a few inconsistencies between his state-
ment at the scene and his police station statement or
his trial testimony undermined his credibility. I am
not persuaded.
The defendant admitted at the police station and at
trial to having assaulted the victim. At trial, the defen-
dant claimed to have acted in self-defense. The jury
had before it a plethora of evidence other than the
defendant’s crime scene statement from which it could
have concluded that the defendant’s theory was not
credible, including physical evidence that conflicted
with the defendant’s account of the altercation, the
absence of a claim of self-defense in the defendant’s
statement at the police station, and various inconsisten-
cies between his police station statement and his trial
testimony.7 Accordingly, the limited inconsistencies
between the defendant’s crime scene statement on the
one hand and his police station statement and trial
testimony on the other hand were minor in comparison
to other evidence from which the jury could have con-
cluded that the defendant was not credible.
Moreover, we have recognized that ‘‘statements
obtained in violation of Miranda, if not the product of
improper police coercion, are admissible for impeach-
ment purposes.’’ State v. Mangual, 311 Conn. 182, 192
n.10, 85 A.3d 627 (2014). The trial court found that the
officers who interrogated the defendant at the scene
‘‘at no time engaged in any coercive police activity what-
soever . . . .’’ I am not persuaded that this finding was
clearly erroneous. The state was therefore entitled to
use the defendant’s crime scene statement to impeach
the defendant. The state did just that when it recalled
the officers who interrogated the defendant at the crime
scene and elicited some of the very inconsistencies that
the defendant claims were harmful. Although a state’s
witness commented on one of these inconsistencies
during the state’s case-in-chief, the jury nevertheless
properly heard that same evidence in the state’s rebut-
tal. I am therefore compelled to conclude that the
admission of the defendant’s statement in response to
the question ‘‘[w]hat happened?’’ was harmless beyond
a reasonable doubt. I therefore respectfully concur in
the judgment.
1
In the present case, the circumstantial evidence indicating that the defen-
dant or any accomplice actually discarded a weapon, let alone discarded
one in a place accessible to the public, is not as strong as it could be. Cf.
New York v. Quarles, 467 U.S. 649, 651–52, 104 S. Ct. 2626, 81 L. Ed. 2d 550
(1984) (public safety threat when defendant seen fleeing into grocery store
with gun and was later apprehended in store wearing empty gun holster
and without gun in his possession). It is important, therefore, to identify
the basis for an inference that he, or his accomplices, could have done so.
Such an inference is supported in the present case under the totality of the
following considerations: the victim’s ability to name the defendant and
some of his accomplices as his attackers; the possibility that the victim’s
attackers saw him on his cell phone as they returned to the scene and
assumed that the police had been summoned; and an officer’s trial testimony
that perpetrators often discard or secrete their weapons after committing
a crime.
2
As I explain later, the officers’ conduct at the scene makes clear that
they were not under the impression that the victim’s assailants were then
present at the scene or likely to return to the scene. Indeed, in discussing
the nature of the public safety concern, no officer cited such a possibility
as one of his concerns.
3
The majority states that ‘‘[t]he victim had also told the [911] dispatcher
that six people were coming back to the scene with guns.’’ Although this
statement is correct, it is important to clarify that it related to the victim’s
observation while on the telephone with the dispatcher, namely, that the
defendant and his accomplices were returning to the scene in the victim’s
stolen vehicle at that time. The defendant and his accomplices thereafter
left the vehicle at the scene. There was no evidence that the defendant’s
accomplices intended to return to the scene of the crime after returning
the vehicle. As I explain later, the conduct of the police would not support
such an inference.
4
I recognize that any statement or question ‘‘that the police should know
is reasonably likely to evoke an incriminating response from a suspect . . .
amounts to interrogation’’ for purposes of Miranda; (internal quotation
marks omitted) State v. Ramos, 317 Conn. 19, 29, 114 A.3d 1202 (2015); and
thus the public safety exception is not inapplicable simply because a question
is likely to elicit such a response.
5
Only one officer mentioned any concern other than the location of the
weapons at the suppression hearing. That officer stated: ‘‘We still had another
suspect out there with a possibility he had a gun on him.’’ This statement
obviously refers to a single suspect, presumes that this suspect is still in
possession of his weapon, and that the suspect has fled from the scene.
6
I am not suggesting that the officers in the present case engaged in a
subterfuge. Rather, I am pointing out that the majority’s approach provides
a road map for how to engage in one whenever a colorable public safety
threat exists. The majority appears to miss the point that the officers’ purpose
can evolve from one that is permissible to another that is impermissible
either by virtue of a change in circumstances (public safety concern has
been ameliorated) or by a change in the nature of the questions posed.
Moreover, although an overly broad question may be evidence of a subter-
fuge, application of the public safety exception ultimately does not depend
on the officers’ subjective intent. New York v. Quarles, supra, 467 U.S. 656.
Therefore, the officers in the present case may have intended their question
to elicit information related to public safety concerns—a permissible pur-
pose—but nonetheless impermissibly framed the question in a manner that
was not reasonably conducive to accomplishing that purpose.
7
The defendant also claims that his police station statement was inadmissi-
ble pursuant to Missouri v. Seibert, 542 U.S. 600, 617, 124 S. Ct. 2601, 159
L. Ed. 2d 643 (2004), under which suppression of a subsequent, voluntary
confession is required when police intentionally violated Miranda in
obtaining an initial confession. I agree with the state that the record is
inadequate to review this unpreserved claim. See State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989). The trial court did not make the requisite
factual findings necessary to prevail on a Seibert claim, and there are not
undisputed facts in the record from which we could make such a determina-
tion as a matter of law.