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STATE v. CHRISTOPHER S.—CONCURRENCE
MULLINS, J., with whom KAHN, J., joins, concurring.
Respectfully, I concur in the result. I agree with the
majority that the state met its burden under General
Statutes § 54-1o (h) in the present case and, therefore,
that the judgment of the Appellate Court should be
affirmed. Where I part ways with the majority is in its
conclusion ‘‘that the defendant’s claim with respect to
voluntariness is constitutional.’’ I disagree that, by
merely using the term ‘‘voluntarily’’ in that statute, the
legislature intended to, or even properly could, create
a constitutional claim for a violation of a statute govern-
ing the recording of statements taken in a place of
detention. Although I agree that there may be overlap
between the constitutional requirement for voluntari-
ness and the statutory requirement in § 54-1o (h), that
does not, in my view, render a claim made under the
statute to be of constitutional magnitude. Thus, I would
agree with the reasoning of the Appellate Court, which
concluded that the claim of the defendant, Christopher
S., under § 54-1o was a purely evidentiary claim and
reviewable on appeal as such. See State v. Spring, 186
Conn. App. 197, 207–208, 199 A.3d 21 (2018).
First, this court clearly has explained that neither the
federal constitution nor our state constitution requires
the recording of custodial interrogations and the state-
ments made therein. See, e.g., State v. Lockhart, 298
Conn. 537, 539–40, 575, 4 A.3d 1176 (2010). Indeed, we
repeatedly have rejected such a claim and declined to
exercise our supervisory authority to mandate such a
recording. See, e.g., State v. Edwards, 299 Conn. 419,
443–44, 11 A.3d 116 (2011); State v. Lockhart, supra,
543–44, 577; State v. James, 237 Conn. 390, 428–29, 434
and n.36, 678 A.2d 1338 (1996). As the majority points
out, in Lockhart, we left it to the legislature to determine
whether to establish any recording requirement. See
State v. Lockhart, supra, 561, 574, 577; see also State
v. Edwards, supra, 444. Our pronouncement in Lockhart
cannot be read to mean that we left it to the legislature
to establish any constitutional rights with respect to
the recording of custodial interrogations. Indeed, the
legislature simply does not have that power. See, e.g.,
Boerne v. Flores, 521 U.S. 507, 524, 117 S. Ct. 2157,
138 L. Ed. 2d 624 (1997) (‘‘[t]he power to interpret the
[c]onstitution in a case or controversy remains in the
[j]udiciary’’). Like the Appellate Court, I am aware of
no authority permitting the legislature to create consti-
tutional rights by statute.
Thus, in light of our express rejection of the claim
that there is a constitutional right to recorded interroga-
tions, the legislature was not writing on a clean slate.
To be sure, in developing § 54-1o, not only was the
legislature operating with the knowledge that the
recording requirement in § 54-1o was not constitution-
ally required, but also it is not clear to me that the
legislature even could go beyond its legislative mandate
of developing statutory rights to creating constitutional
rights. Put differently, the requirements outlined in § 54-
1o are statutory, not constitutional, because the legisla-
ture does not establish constitutional requirements.
Therefore, I would conclude that any claim under § 54-
1o is not of constitutional magnitude.
Second, although I disagree with the majority that the
legislature’s use of the term ‘‘voluntarily’’ incorporated
a constitutional dimension into § 54-1o (h), I do agree
that the understanding of the term ‘‘voluntarily’’ in § 54-
1o (h) is informed by how that term is used and defined
in our law. In addition, by using this term in a criminal
statute, I also agree that ‘‘the legislature intended the
[term] to mean what [criminal] lawyers and judges [who
preside over criminal proceedings] would most natu-
rally think it means, namely, what its meaning has long
been in the law of confessions.’’ State v. Piorkowski,
236 Conn. 388, 409, 672 A.2d 921 (1996).1 That meaning,
for purposes of due process, is that ‘‘the defendant’s
will was overborne by the police in eliciting the state-
ment.’’ Id., 404.2
In order to determine whether a statement was, in
fact, voluntary, this court has set forth several factors
that may be considered. Specifically, we have explained
that ‘‘[t]he determination of whether a confession is
voluntary must be based on a consideration of the total-
ity of circumstances surrounding it . . . including both
the characteristics of the accused and the details of the
interrogation. . . . Factors that may be taken into
account, upon a proper factual showing, include: the
youth of the accused; his lack of education; his intelli-
gence; the lack of any advice as to his constitutional
rights; the length of detention; the repeated and pro-
longed nature of the questioning; and the use of physical
punishment, such as the deprivation of food and sleep.
. . . The state is required to prove the voluntariness
of a confession by a preponderance of the evidence.’’
(Internal quotation marks omitted.) State v. Ramos, 317
Conn. 19, 32, 114 A.3d 1202 (2015); see also State v.
Lawrence, 282 Conn. 141, 153, 920 A.2d 236 (2007).
I agree with the Appellate Court that, in determining
whether a statement is voluntary for purposes of § 54-
1o (h), the factors used in the due process context for
determining voluntariness are applicable. See State v.
Spring, supra, 186 Conn. App. 211 (‘‘[b]ecause the legis-
lature has not provided a different test for determining
voluntariness under the statute, we conclude that the
same factors that traditionally are used under a due
process analysis are relevant in determining voluntari-
ness under § 54-1o (h)’’). Indeed, I would conclude that,
by its use of the term ‘‘voluntarily,’’ the legislature meant
for judges to use the factors traditionally used to deter-
mine voluntariness when evaluating a statutory claim
under § 54-1o (h).
It is a different question, however, whether, by use
of the term ‘‘voluntarily,’’ the legislature intended to go
beyond simply requiring that voluntariness be deter-
mined by our traditional factors to intending that the
mere use of the term turns a claim under § 54-1o (h)
into one of constitutional magnitude. I would conclude
that the legislature did not intend to and, indeed, could
not create a constitutional claim through the adoption
of § 54-1o (h). Instead, it is clear to me that the legisla-
ture intended that the term ‘‘voluntarily’’ have the mean-
ing it has long had in the law of confessions for purposes
of the statutory protections provided by § 54-1o (h),
but not that a claim under the statute is a constitutional
claim, rather than a statutory one. Although the majori-
ty’s position is tempting and provides § 54-1o with
stronger teeth, I would not ignore the well established
separation of powers doctrine and allow constitutional
rights to be created through legislative fiat.
I fully acknowledge that there is overlap between
what due process requires by way of voluntariness and
what § 54-1o (h) requires for the state to rebut the
presumption of inadmissibility of an unrecorded state-
ment. But the overlap does not transform this statutory
requirement into a constitutional right. In other words,
a claim under subsection (h) of § 54-1o is a statutory
claim, despite the fact that the requirements in that
subsection may overlap with certain constitutional prin-
ciples.3
Indeed, § 54-1o is not the only statute in which consti-
tutional and statutory protections overlap. For instance,
in State v. Urbanowski, 163 Conn. App. 377, 136 A.3d
236 (2016), aff’d, 327 Conn. 169, 172 A.3d 201 (2017),
the Appellate Court examined a claim under General
Statutes (Rev. to 2011) § 53a-64bb (b),4 which provides
that ‘‘[n]o person shall be found guilty of strangulation
in the second degree and unlawful restraint or assault
upon the same incident, but such person may be
charged and prosecuted for all three offenses upon the
same information.’’ See State v. Urbanowski, supra, 386
and n.4. The statutory protections in § 53a-64bb (b)
clearly overlapped with the constitutional principle
against double jeopardy. The same incident require-
ment under the statute is virtually indistinguishable
from the same transaction or occurrence requirement
under double jeopardy. See State v. Miranda, 142 Conn.
App. 657, 665, 64 A.3d 1268 (2013) (‘‘[o]nce it is deter-
mined that multiple convictions and sentences chal-
lenged on double jeopardy grounds are not, in fact, for
the same offense, as the state has defined the offense
in question, the federal constitutional inquiry under the
double jeopardy clause is at an end’’), appeal dismissed,
315 Conn. 540, 109 A.3d 452 (2015). The fact that the
statute prohibited punishment for the identified crimes
certainly overlapped with constitutional protections.
On appeal, the defendant in Urbanowski brought a
claim under § 53a-64bb (b), alleging that his conviction
for both assault in the second degree and strangulation
in the second degree violated the protections provided
in the statute. State v. Urbanowski, supra, 163 Conn.
App. 383. The defendant had not clearly made a claim
pursuant to § 53a-64bb (b) at trial. Id., 384. The Appel-
late Court explained that, ‘‘[i]nsofar as the defendant’s
claim is based on a violation of § 53a-64bb (b), the claim
is not reviewable under Golding5 because it alleges only
a violation of statutory magnitude. . . . Insofar as the
defendant’s claim is based on a violation of the prohibi-
tion against double jeopardy afforded under the state
and federal constitutions, however, the claim is review-
able under Golding because the record is adequate for
review, and the claim is of constitutional magnitude.’’
(Citation omitted; footnote added; footnote omitted.)
Id., 386; see also, e.g., State v. Graham S., 149 Conn.
App. 334, 343, 87 A.3d 1182 (claim brought under § 53a-
64bb (b) is statutory in nature), cert. denied, 312 Conn.
912, 93 A.3d 595 (2014).
I also find decisions of the Texas Court of Criminal
Appeals consistent with my view and instructive in this
case. In Texas, article 38.22 of the Texas Code of Crimi-
nal Procedure6 prohibits the admission of statements
made during custodial interrogations of individuals
charged with a crime, unless such interrogations are
recorded. Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (a)
(West Cum. Supp. 2017). In examining a claim that the
warnings provided to the defendant did not comply
with the requirements of the statute, the Texas Court
of Criminal Appeals concluded that, despite the use of
phrases in the statute such as ‘‘knowingly, intelligently,
and voluntarily waives any rights set out in the warn-
ing’’; Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (a) (2)
(West Cum. Supp. 2017); see also Tex. Code Crim. Proc.
Ann. art. 38.22, § 2 (b) (West Cum. Supp. 2017); any
claim under that statute was nonconstitutional. See
Nonn v. State, 117 S.W.3d 874, 881 (Tex. Crim. App.
2003) (‘‘the erroneous admission of [a statement taken
in violation of article 38.22] is appropriately character-
ized as a [nonconstitutional] error’’ (internal quotation
marks omitted)); see also Davidson v. State, 25 S.W.3d
183, 186 (Tex. Crim. App. 2000) (‘‘[article] 38.22 is
located in the [Texas] Code of Criminal Procedure and
deals with an evidentiary matter’’).
Furthermore, the Texas Court of Appeals recognized
that the statutory protections provided in article 38.22
overlapped with constitutional principles. In Foyt v.
State, 602 S.W.3d 23 (Tex. App. 2020), the Texas Court
of Appeals explained: ‘‘The erroneous admission of a
statement in violation of article 38.22 amounts to [non-
constitutional] error. . . . However, [the defendant]
challenged the admission of his statement under both
the [f]ifth [a]mendment [to the United States constitu-
tion] and article 38.22. Therefore, we address harm
under the standard for constitutional error.’’ (Citation
omitted; emphasis added.) Id., 44 n.7.
Similarly, I would conclude that, in the present case,
the defendant’s claim under § 54-1o is statutory in
nature. Indeed, the legislature can create only statutory
rights, even if those statutory rights overlap or track
constitutional ones. Of course, nothing prevents a
defendant from challenging the failure to record as a
statutory matter and moving to suppress a statement
that he believes was given involuntarily in violation of
due process. However, considering a challenge pursu-
ant only to the statute to be a challenge of constitutional
magnitude fails, in my view, to account for the funda-
mental limitations on what the legislature can do
through the enactment of a statute. Construing legisla-
tive enactments to create constitutional rights simply
because the legislature incorporated a constitutional
term or phrase into the statute is a slippery slope and
potentially runs afoul of the separation of powers doc-
trine in that legislatures do not establish constitutional
rights. Thus, notwithstanding the overlap here between
the statutory requirements and due process voluntari-
ness considerations, I conclude that a claim under § 54-
1o is purely statutory and not of constitutional mag-
nitude.
For the foregoing reasons, I concur in the result of
the majority opinion.
1
The majority relies on State v. Piorkowski, supra, 236 Conn. 409, and
concludes that ‘‘[i]t is self-evident that [the admission of confessions made
by criminal suspects during custodial interrogations] falls squarely within
the purview of criminal lawyers, judges, and law enforcement. In choosing
the word ‘voluntar[y],’ the legislature logically would have ascribed to it
the meaning that its intended audience would assume—voluntary in the
constitutional sense.’’ Piorkowski, however, only concluded that the term
‘‘voluntary,’’ when used in a statute, would have the same meaning that it
has in the law of confessions, not that the use of that word creates a
constitutional right through a statute.
2
The term ‘‘voluntariness’’ is also understood, as deriving from Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), to involve
‘‘essentially whether, when the police interrogate a suspect who is in their
custody, they properly administer the Miranda warnings to him and he
waives the rights about which he was warned.’’ State v. Piorkowski, supra,
236 Conn. 405. In the present case, the defendant does not challenge his
advisement or waiver of his Miranda rights.
3
The majority asserts that, ‘‘[u]nder the concurrence’s interpretation of
the statute, the state would have a lower, evidentiary burden with respect
to proving voluntariness when the police fail to record a custodial interroga-
tion in violation of the statute.’’ Footnote 3 of the majority opinion. The
majority misapprehends my interpretation of § 54-1o. I do not contend that
the state would have any lesser burden than the preponderance of the
evidence burden identified in the statute when attempting to demonstrate
that an unrecorded confession was, nonetheless, ‘‘voluntarily given . . . .’’
General Statutes § 54-1o (h). Indeed, I have explained that the standard for
voluntariness and the factors used in determining voluntariness under § 54-
1o are the same as the standard for voluntariness and the factors used in
determining voluntariness in the due process context. That the majority
sees my position as creating a separate, lower, evidentiary burden of proof
is perplexing.
The source of the majority’s misapprehension of my position appears to
lie in how a statutory claim should be treated on appeal. In my view, this
statutory claim should be reviewed, if it is preserved, under the standard
of review applicable to statutory claims. Our appellate review does not
hinge on whether the police record the custodial interrogation. Instead, the
different standard of review on appeal hinges on whether a defendant
chooses to make a statutory claim for a violation of § 54-1o, or to make a
constitutional claim alleging that his confession was not voluntary. It is the
defendant’s choice whether to assert a statutory claim, a constitutional
claim, or both. Critically, contrary to the majority’s view of my position,
the failure of the police to record the interrogation does not prohibit the
defendant from bringing a constitutional claim alleging that his constitutional
rights have been violated by the admission of an involuntary statement.
That constitutional claim will be reviewed on appeal, even if it is not pre-
served, under the standard applicable to constitutional claims. Thus, to the
extent that I advocate for two standards, it is simply to be consistent with
our jurisprudence, in that purely statutory claims are reviewed under the
appellate standard applicable to statutory claims, and constitutional claims
are reviewed under the standard applicable to constitutional claims. The
majority has mixed and matched standards by acknowledging that no consti-
tutional right was created under this statute but concluding that, simply
because the statute uses the word ‘‘voluntarily,’’ this purely statutory claim
should be reviewed on appeal as if it is now a claim of constitutional mag-
nitude.
4
Hereinafter, all references to § 53a-64bb (b) in this opinion are to the
2011 revision of the statute.
5
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
6
Article 38.22 of the Texas Code of Criminal Procedure provides in rele-
vant part: ‘‘Sec. 2. No written statement made by an accused as a result of
custodial interrogation is admissible as evidence against him in any criminal
proceeding unless it is shown on the face of the statement that:
‘‘(a) the accused, prior to making the statement, either received from a
magistrate the warning provided in Article 15.17 of this code or received
from the person to whom the statement is made a warning that:
‘‘(1) he has the right to remain silent and not make any statement at all
and that any statement he makes may be used against him at his trial;
‘‘(2) any statement he makes may be used as evidence against him in court;
‘‘(3) he has the right to have a lawyer present to advise him prior to and
during any questioning;
‘‘(4) if he is unable to employ a lawyer, he has the right to have a lawyer
appointed to advise him prior to and during any questioning; and
‘‘(5) he has the right to terminate the interview at any time; and
‘‘(b) the accused, prior to and during the making of the statement, know-
ingly, intelligently, and voluntarily waived the rights set out in the warning
prescribed by Subsection (a) of this section.
‘‘Sec. 3. (a) No oral or sign language statement of an accused made as a
result of custodial interrogation shall be admissible against the accused in
a criminal proceeding unless:
‘‘(1) an electronic recording, which may include motion picture, video
tape, or other visual recording, is made of the statement;
‘‘(2) prior to the statement but during the recording the accused is given
the warning in Subsection (a) of Section 2 above and the accused knowingly,
intelligently, and voluntarily waives any rights set out in the warning;
‘‘(3) the recording device was capable of making an accurate recording,
the operator was competent, and the recording is accurate and has not
been altered;
‘‘(4) all voices on the recording are identified; and
‘‘(5) not later than the 20th day before the date of the proceeding, the
attorney representing the defendant is provided with a true, complete, and
accurate copy of all recordings of the defendant made under this article.
***
‘‘(e) The courts of this state shall strictly construe Subsection (a) of
this section and may not interpret Subsection (a) as making admissible a
statement unless all requirements of the subsection have been satisfied by
the state, except that:
‘‘(1) only voices that are material are identified; and
‘‘(2) the accused was given the warning in Subsection (a) of Section 2
above or its fully effective equivalent. . . .’’
State v. Christopher S.
Combined Opinion