******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
STATE OF CONNECTICUT v. MICHAEL LABARGE

(AC 37581)

DiPentima, C. J., and Prescott and Bishop, Js.

Argued January 11—officially released April 5, 2016
(Appeal from Superior Court, judicial district of New

Britain, D’Addabbo, J.)

William B. Westcott, assigned counsel, for the appellant (defendant).

Melissa L. Streeto, senior assistant state’s attorney,

with whom, on the brief, was Brian Preleski, state’s

attorney, for the appellee (state).
Opinion

BISHOP, J. The defendant, Michael Labarge, appeals

from the judgment of conviction, rendered after a jury

trial, of murder in violation of General Statutes § 53a54a and tampering with physical evidence in violation

of General Statutes § 53a-155 (a) (1). On appeal, the

defendant claims that the trial court improperly (1)

denied his motion to sever for trial the two charges

against him and (2) denied his motion to suppress certain statements that he had made to state correction

officers. We affirm the judgment of the trial court.

The jury could have reasonably found the following

facts. In the evening of August 29, 2009, the defendant

came across the victim, Cornell Johnson, selling crack

cocaine to the defendant’s girlfriend, Sherri Clarke. The

defendant then beat the victim with a baseball bat and

stabbed him nineteen times with a knife, killing him.

The defendant then cut off the victim’s penis and left

the murder scene with Clarke, taking the victim’s penis,

identification, money, and drugs with him. The couple

went to their apartment in New Britain where the defendant flushed the victim’s penis down the toilet. The

couple also showered, changed clothing, and smoked

crack.

In the early morning of August 30, 2009, the defendant

and Clarke returned to the murder scene and set fire

to the victim’s car. Later that morning, the couple purchased two hand saws from The Home Depot and again

returned to the murder scene. There, they used the

hand saws to cut the victim’s body into fifteen pieces

and they then hid the victim’s remains in the nearby

woods.

The defendant subsequently was arrested in connection with the murder and dismemberment of the victim.

The state charged the defendant in a two count, single

long form information with murder in violation of § 53a54a in count one and tampering with physical evidence

in violation of § 53a-155 (a) (1) in count two. Following

a jury trial, the defendant was convicted on both

counts,1 and the court, D’Addabbo, J., sentenced the

defendantto a total effective sentence of sixty-five years

incarceration. This appeal followed. Additional facts

will be set forth as necessary.

I

The defendant first claims that the court abused its

discretion by denying his motion to sever the murder

count from the tampering count. His claim is twofold.

The defendant first relies on State v. Boscarino, 204

Conn. 714, 723, 529 A.2d 1260 (1987),2

to argue that the

denial of his motion to sever prejudiced his right to

a fair trial because the jury, after hearing the facts

underlying the tampering charge, which he argues were

particularly brutal, violent, and shocking, could not

fairly consider his guilt as to the murder charge. In
addition, the defendant argues that the court’s denial

of his motion to sever compromised his fifth amendment right to testify in connection with the murder

charge but to remain silent with respect to the tampering charge.

The following additional proceduralfacts are relevant

to the resolution of the defendant’s severance claims.

On May 10, 2012, the state filed a substitute long form

information charging the defendant in count one with

murder in violation of § 53a-54a and in count two with

tampering with physical evidence in violation of § 53a155 (a) (1). The factual underpinning of the tampering

charge related to the state’s claim that, on the day after

the murder, the defendant, with the help of his girlfriend, cut up and concealed the victim’s body by placing it in various locations in the woods. In response,

on May 15, 2012, the defendant filed a motion to sever

the murder charge from the tampering charge.

At the May 24, 2012 hearing on the severance motion,

the defendant made a twofold claim. First, he argued

that being required to defend the murder and tampering

charges in the same trial would substantially prejudice

him because the facts underlying the tampering charge

were too brutal, violent, and shocking to allow the jury

to consider fairly and independently his guilt as to the

murder charge.3 Second, he claimed that he wished to

testify in response to the murder charge but not in

regard to the tampering charge, and that being required

to defend both charges in the same trial prejudiced his

right, alternately to present a defense to the murder

charge while preserving his right to remain silent as to

the tampering charge. As to this second aspect of his

claim regarding severance, the defendant stated that

he had ‘‘substantial evidence to offer to the fact finder

related to the cause of death of [the victim]. If [his]

testimony is believed his conduct could be justified.’’

In addition, he stated that ‘‘[i]n contrast . . . there

[was] no advantage to him or incentive to him to testify

on the tampering case.’’

The state responded that severance was unwarranted

where the charges arise from the same criminal act or

transaction and the offenses are of the same character.

Specifically, the state argued that the burden rested on

the defendant to prove that he would be substantially

prejudiced by failing to sever the charges for trial and

that the defendant had not only failed to meet this

burden, but had overlooked it entirely because the evidence regarding each charge would, in fact, be admissible regarding the other charge. Thus, the state claimed,

because the evidence would, in any event, be cross

admissible, the defendant could not prove any prejudice

by the joinder of the charges. In making this assertion,

the state noted that the defendant had acknowledged

that the evidence underlying the two charges would be

cross admissible if the charges were tried separately.4
On May 30, 2012, the court denied the defendant’s

motion in an oralruling. The court noted that the burden

was on the defendant to prove that the charges should

be tried separately by establishing that the charges were

not of the same character and that the defendant had

not met this burden. As to the defendant’s first claim,

the court found that the ‘‘defendant [had] offered no

evidence or argument to support the proposition that

the offenses are not of the same character.’’ Further,

the court stated that ‘‘the evidence appears to be cross

admissible with respect to each count. Evidence that

a murder was committed appears to be admissible in

the count . . . alleging dismemberment and evidence

that the body was dismembered appears to be admissible in the count alleging murder, particularly the

expected testimony of the medical examiner.’’5

With respect to the defendant’s second claim, the

court concluded that the defendant had not met his

burden to prove that trying the cases together compromised his right to testify in the murder charge and to

refrain from testifying in the tampering charge. The

court explained that it could grant the defendant’s

motion on that ground only if the defendant made a

‘‘convincing showing that he has both important testimony to give concerning one count and strong need to

refrain from testifying on the other. In making such a

showing it is essential that the defendant present

enough information regarding the nature of the testimony which [he] is to give on one count, and his reasons

for not wishing to testify on the other . . . .’’ The court

then considered the defendant’s proffer and concluded

that the defendant had not met his burden. The court

noted that the defendant merely had stated that he

had ‘‘substantial information to present on [the murder]

count including information relevant to the defense of

justification; [but] other than this presentation, there is

no further information concerning the testimony as to

the murder count.’’ Additionally, the court stated that

the ‘‘defendant ha[d] indicated that he wishes to exercise his fifth amendment right on the tampering with

evidence count’’ and that ‘‘the defendant offer[ed] no

information to support his position of having a, quote,

unquote, strong need to refrain from testifying.’’ As

a result, the court denied the defendant’s motion for

severance. During the court’s final instructions to the

jury, it informed the jury that the defendant had been

charged in two counts and that it was the jury’s duty

to determine the guilt or nonguilt of the defendant as

to each count separately.6

Before we address the defendant’s claims, we set

forth the standard under which we review a trial court’s

denial of a defendant’s motion to sever for trial charges

already joined in a single information. Practice Book

§ 41-18 provides: ‘‘If it appears that a defendant is prejudiced by a joinder of offenses, the judicial authority
may, upon its own motion or the motion of the defendant, order separate trials of the counts or provide

whatever other relief justice may require.’’ The decision

to sever cases for trial ‘‘is within the sound discretion of

the trial court and that discretion must not be disturbed

unless it has been manifestly abused. . . . The discretion of a court to order separate trials should be exercised only when a joint trial will be substantially

prejudicial to the rights of the defendant, and this means

something more than that a joint trial will be less than

advantageous to the defendant. ‘‘ (Citation omitted;

internal quotation marks omitted.) State v. Rodgers, 198

Conn. 53, 63, 502 A.2d 360 (1985). On appeal, it is always

the defendant’s burden ‘‘to show thatthe denial of severance resulted in substantial injustice, and that any

resulting prejudice was beyond the curative power of

the court’s instructions.’’ (Internal quotation marks

omitted.) State v. Boscarino, supra, 204 Conn. 721; see

State v. Payne, supra, 303 Conn. 544 (‘‘[t]he defendant

bears a heavy burden of showing that [joinder] resulted

in substantial injustice, and that any resulting prejudice

was beyond the curative power of the court’s instructions’’ [internal quotation marks omitted]).

A

We first address the defendant’s contention that the

trial court improperly denied his motion to sever on

the grounds that the factual circumstances underlying

the tampering charge were so brutal, violent, and shocking that they tended to arouse the passions of the jury

and render it unable to consider fairly and independently the evidence against him in the murder charge.

See State v. Boscarino, supra, 204 Conn. 723 (‘‘acknowledg[ing] that evidence of a defendant’s brutal or shocking conduct in one case may compromise the jury’s

ability to considerfairly the charges against him in other

unrelated, but jointly tried cases’’). In response to this

claim, the state asserts that the court correctly denied

the defendant’s motion to sever because the defendant

did not make the threshold showing that the evidence

with respect to both charges was not cross admissible.

In short, the state argues that the court need only consider the Boscarino factors if the court first makes a

determination that the evidence would not be cross

admissible. Here, the state notes that the defendant has

acknowledged cross admissibility and that admission,

supported independently by facts in the record, should

conclude this court’s consideration of the propriety of

the trial court’s ruling on the motion to sever. We agree.

‘‘In the trial court, when multiple charges have

already been joined in a single information by the state

pursuant to [General Statutes] § 54-57, and the defendant has filed a motion to sever the charges for trial

pursuant to Practice Book § 41-18, the defendant bears

the burden of proving that the offenses are not of the

‘same character’; General Statutes § 54-57; and there-
fore that the charges should be tried separately.’’ State

v. Payne, supra, 303 Conn. 549. To meet this burden, the

defendant must prove that the evidence of the separate

charges would not be cross admissible if the cases were

tried separately. See State v. Fana, 109 Conn. App. 797,

804–805, 953 A.2d 898, cert. denied, 289 Conn. 936, 958

A.2d 1246 (2008). This is because ‘‘[when] evidence of

one incident would be admissible at the trial of the other

incident, separate trials would provide the defendant no

significant benefit. . . . Under such circumstances,

the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial. . . .

Accordingly, we have found joinderto be proper[when]

the evidence of other crimes or uncharged misconduct

[was] cross admissible at separate trials.’’ (Internal quotation marks omitted.) State v. Anderson, 318Conn. 680,

692, 122 A.3d 254 (2015); see also State v. Crenshaw, 313

Conn. 69, 84, 95 A.3d 1113 (2014) (‘‘[w]e consistently

have found joinder to be proper if we have concluded

that the evidence of other crimes or uncharged misconduct would have been cross admissible at separate trials’’ [internal quotation marks omitted]); State v.

Schroff, 198 Conn. 405, 409, 503 A.2d 167 (1986) (concluding that ‘‘[e]conomy and expedition of judicial

resources are not achieved when the same facts must

be proved to two different juries,’’ such as when one

charge directly resulted from other charge).

Once the defendant makes a threshold showing that

the evidence underlying the charges is not cross admissible, on appeal the defendant then must prove that the

balance of the Boscarino factors weighs in favor of

severance, meaning that the denial of severance

resulted in substantial prejudice to the defendant that

the court’s curative instructions could notremedy. State

v. LaFleur, 307 Conn. 115, 159, 51 A.3d 1048 (2012). In

other words, the Boscarino factors are assessed only

if the evidence underlying the charges is not cross

admissible. Id. (‘‘[w]here evidence is cross admissible,

. . . our inquiry ends’’); see also State v. Fana, supra,

109 Conn. App. 804 (‘‘[a]t least with regard to the first

Boscarino factor, a defendant will not be able to demonstrate prejudice by a consolidation of charges if the

evidence presented would have been cross admissible

at the two trials, were the charges tried separately’’).7

If the defendant fails to make either showing, the

motion to sever must be denied as the defendant has

not carried his burden.

In the present case, the defendant did not challenge

before the trial court the cross admissibility of the evidence if the charges were tried separately and makes

no attempt to do so before this court. Instead, he relies

solely on the second Boscarino factor to argue that the

court abused its discretion by denying his motion to

sever. This argument is not available to the defendant

because of the cross admissibility of the evidence. State

v. LaFleur, supra, 307 Conn. 155. Therefore, on review,
we need not discuss the comparative brutality of his

crimes or any of the Boscarino factors.

Our review of the record reveals that the defendant’s

acknowledgement at trial that the evidence would be

cross admissible was well supported. Accordingly, even

without the defendant’s concession of cross admissibility, it is likely that the court, on the basis of a proffer

from the state, reasonably would have been entitled to

come to the same conclusion. As the court explained

in its oral ruling denying the defendant’s motion for

severance, ‘‘the evidence appears to be cross admissible

with respect to each count. Evidence that a murder was

committed appears to be admissible in the count . . .

alleging dismemberment and evidence that the body

was dismembered appears to be admissible in the count

alleging murder, particularly the expected testimony of

the medical examiner.’’ See State v. Moye, 119 Conn.

App. 143, 150, 986 A.2d 1134 (‘‘A trial court may admit

[e]vidence that an accused has taken some kind of

evasive action to avoid detection for a crime, such as

. . . concealment of evidence . . . [which] is ordinarily the basis for a charge on the inference of consciousness of guilt. . . . In seeking to introduce

evidence of a defendant’s consciousness of guilt, [i]t is

relevant to show the conduct of an accused . . . which

may be inferred to have been influenced by the criminal

act.’’ [Internal quotation marks omitted.]), cert. denied,

297 Conn. 907, 995 A.2d 638 (2010). Therefore, because

the defendant has failed to show that the court’s denial

of his motion to sever caused him prejudice and that

the cases were not cross admissible, this aspect of his

severance claim fails.

B

The defendant next claims that the court’s denial of

his motion to sever violated his fifth amendment right

to remain silent with respect to the tampering charge

and to testify with respect to the murder charge. In

response, the state argues that the court did not abuse

its discretion in denying the defendant’s motion to sever

on this basis because the defendant did not sustain his

burden of demonstrating to the trial court that a joint

trial on both charges would impair his fifth amendment

right. We agree with the state.

In State v. Schroff, supra, 198 Conn. 409, our Supreme

Court decided that ‘‘no need for a severance exists until

the defendant makes a convincing showing that he has

both important testimony to give concerning one count

and strong need to refrain from testifying on the other.’’

(Internal quotation marks omitted.) ‘‘In making such a

showing, it is essential that the defendant present

enough information—regarding the nature of the testimony he wishes to give on [some counts] and his reasons for not wishing to testify on [others]—to satisfy

the court that the claim of prejudice is genuine and to

enable it intelligently to weigh the considerations of
economy and expedition in judicial administration

against the defendant’s interest in having a free choice

with respect to testifying.’’ (Internal quotation marks

omitted.) State v. Marsala, 43 Conn. App. 527, 535–36,

684 A.2d 1199 (1996), cert. denied, 239 Conn. 957, 688

A.2d 329 (1997).

From the record, we conclude that the defendant

failed to sustain his burden of showing that the denial

of his motion to sever resulted in substantial prejudice

to his fifth amendment rights. Specifically, the defendant provided the court with no information, let alone

enough information, for a convincing showing that he

had a genuine need to testify on the murder charge and

a strong need to refrain from testifying on the tampering

charge. The only information that the court had before

it from which to assess the nature and substance of the

defendant’s proposed testimony was defense counsel’s

statement that ‘‘[the defendant] intends to testify as to

the murder charge. He will testify, he will offer substantial evidence before the fact finder.’’ In its oral ruling

denying the defendant’s motion to sever, the court

noted that ‘‘other than this presentation, [the defendant

offered] no further information concerning [his proposed] testimony as to the murder count.’’ The defendant’s showing regarding his reason to refrain from

testifying on the tampering count was likewise nondescript. He merely informed the court, in conclusory

fashion, that he did not plan to testify as to the tampering charge if the charges were tried separately. At no

point did the defendant present any information as to

why he did not plan to testify regarding the tampering

charge and never identified a ‘‘strong need to refrain

from testifyng on the [tampering charge].’’ (Internal

quotation marks omitted.) State v. Schroff, supra, 198

Conn. 409.

The defendant’s general assertions, unsupported by

any specific proffer, were insufficient to meet his heavy

burden of demonstrating that the denial of his motion to

sever would substantially prejudice his right to remain

silent as to one charge and to testify as to the other.

See id. Therefore, ‘‘[t]he defendant’s complete failure

to substantiate his claim of prejudice falls far short of

the ‘convincing showing’ required by our cases.’’ Id.,

410. In sum, the court’s denial of the defendant’s motion

to sever was not an abuse of discretion.

II

The defendant next claims that the trial court improperly denied his motion to suppress certain incriminating

statements that he had made to correction officers at

the MacDougal-Walker Correctional Institution (Walker

facility), which he contends were the product of custodial interrogation and made without the benefit of having been accorded his Miranda rights. See Miranda v.

Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L.

Ed. 2d 694 (1966). The defendant also claims that his
statements were obtained in violation of his sixth

amendment right to counsel. See Massiah v. United

States, 377 U.S. 201, 205–206, 84 S. Ct. 1199, 12 L. Ed.

2d 246 (1964). To prevail on his claims, the defendant

must prove that state law enforcement officials purposefully elicited incriminating statements from him

while he was in their custody and subject to custodial

interrogation. Miranda v. Arizona, supra, 444. The state

responds that these claims must fail because the record

demonstrates that the defendant was never subject to

custodial interrogation. We agree with the state.

The following additional procedural history and facts,

as found by the trial court, are relevant to our disposition of the defendant’s suppression claims. The defendant was charged and arraigned on September 9, 2009,

in the Bristol Superior Court, at which time a public

defender was appointed for his representation and a

surety bond was set at five million dollars. On September 17, 2009, the case was transferred to the New Britain

judicial district and a New Britain public defender

entered an appearance on behalf of the defendant in

lieu of his prior counsel. On May 16, 2012, the defendant

filed a motion to suppress certain statements made to

correction officers at the Walker facility. The court held

an evidentiary hearing on the defendant’s motion on

May 24 and 25, 2012. On June 20, 2012, the parties

filed memoranda of law and the court heard argument

regarding the motion. On August 28, 2012, the court filed

a memorandum of decision denying the defendant’s

motion to suppress.

In its memorandum of decision, the court set forth

the following as part of its factual findings: ‘‘On September 25, 2009, the defendant was returning by marshal

transportation to the [Walker facility] after a G.A. 7

Meriden Superior Court appearance. Upon his return,

the defendant, as with all prisoners returning from court

appearances, was brought to the admitting and processing unit. Correctional Officer Kevin Cashman testified that when the defendant returned from his court

appearance, he and otherinmates entered the admitting

and processing unit ‘gang’ chained. These inmates,

including the defendant, were placed in a ‘gang cell’ for

identification purposes. At this location, the restraints

were removed from the defendant, and he and other

inmates proceeded to a smaller, separate cell area

where a strip search was conducted. The defendant

was not shackled, but under supervision. Following that

strip search, the inmates received a meal and were

directed to another holding cell, which was specific to

the inmate’s particular correctional center or housing

area. This ‘destination’ holding cell is approximately

twenty feet by fifty feet and is capable of holding up

to forty-eight inmates. [Cashman] testified that on September 25, 2009, the defendant, upon his return from his

court appearance, was processed at the Walker[facility]

admitting and processing unit in this fashion.
‘‘[Correctional] Officer[Serge] Duquette testified that

while assigned to the admitting and processing unit at

the Walkerfacility on September 25, 2009, he recognized

the defendant as someone from his hometown of New

Britain as he was taking him from the large holding

area to the strip search area. [Duquette] called the

defendant by his street name, ‘Percocet.’ Duquette testified that he also recognized the defendant’s girlfriend

from growing up in New Britain.

‘‘When the defendant was in the destination holding

cell, [Duquette] and the defendant had a conversation.

Duquette testified that during this conversation, the

defendant made incriminating statements to him about

a criminal act.

‘‘The defendant’s ‘destination’ holding cell was

approximately ten feet from the office of [Cashman].

While in his office, [Cashman] heard a ‘part of the conversation’ between [Duquette] and the defendant.

[Cashman] knew the defendant as an inmate, and was

aware that the defendant was familiar with Cashman

as a correctional officer. [Cashman] testified that as

part of that conversation, he heard the defendant use

the ‘N’ word.8 This immediately caused safety concerns

for Cashman, causing him to instruct [Duquette] to

remove the defendant from the holding area and bring

him to [Cashman’s] office, while the defendant was

waiting to be transported to his housing unit in the

Walker facility.

‘‘While in Cashman’s office, the defendant, unshackled, continued his conversation with [Duquette], making

what are described as incriminating statements. The

testimony indicated that [Cashman] made no inquiry of

the defendant while he was in his office. The defendant

remained in [Cashman’s] office for approximately five

minutes and then was transported by [Cashman] to

the defendant’s housing unit. There was no evidence

presented that [Cashman] or [Duquette] provided the

defendant with ‘Miranda warnings.’ ’’ (Footnote in

original.)

Before addressing the defendant’s claims, we set

forth the applicable standard of review and controlling

legal principles that guide our assessment. ‘‘[T]he prosecution may not use statements, whether exculpatory

or inculpatory, stemming from custodial interrogation

of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege

against self-incrimination.’’ Miranda v. Arizona, supra,

384 U.S. 444. These procedural safeguards are generally

referred to as Miranda warnings. See id., 444–45. A

defendant is entitled to Miranda warnings only if he

can prove that he was subject to custodial interrogation;

State v. Pinder, 250 Conn. 385, 409, 736 A.2d 857 (1999);

which requires the defendant to prove that two threshold conditions are satisfied: ‘‘(1) the defendant must
have been in custody; and (2) the defendant must have

been subjected to police interrogation.’’(Internal quotation marks omitted.) State v. Gonzalez, 302 Conn. 287,

294, 25 A.3d 648 (2011).

A person is in custody for Miranda purposes ‘‘only

if, in view of all the surrounding circumstances, a reasonable person would have believed that he was not

free to leave.’’ (Internal quotation marks omitted.) State

v. Kirby, 280 Conn. 361, 393, 908 A.2d 506 (2006). ‘‘Two

discrete inquiries are essential to determine custody:

first, what were the circumstances surrounding the

interrogation; and second, given those circumstances,

would a reasonable person have felt he or she was

not at liberty to terminate the interrogation and leave.’’

(Internal quotation marks omitted.) State v. Turner, 267

Conn. 414, 434–35, 838 A.2d 947, cert. denied, 543 U.S.

809, 125 S. Ct. 36, 160 L. Ed. 2d 12 (2004).

A defendant in custody is subject to interrogation not

only in the face of express questioning by police, but

also when subjected to ‘‘any words or actions on the

part of the police (other than those normally attendant

to arrest and custody) that the police should know are

reasonably likely to elicit an incriminating response

from the suspect.’’ Rhode Island v. Innis, 446 U.S. 291,

301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). ‘‘Whether

a defendant in custody is subject to interrogation necessarily involves determining first, the factual circumstances of the police conduct in question, and second,

whether such conduct is normally attendant to arrest

and custody or whether the police should know that

such conduct is reasonably likely to elicit an incriminating response. . . . A practice that the police should

know is reasonably likely to evoke an incriminating

response from a suspect thus amounts to interrogation.

But, since the police surely cannot be held accountable

for the unforeseeable results of their words or actions,

the definition of interrogation can extend only to words

or actions on the part of police officers that they should

have known were reasonably likely to elicit an incriminating response.’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Canady,

297 Conn. 322, 335–36, 998 A.2d 1135 (2010).

‘‘As a general matter, the standard of review for a

motion to suppress is well settled. A finding of fact will

not be disturbed unless it is clearly erroneous in view

of the evidence and pleadings in the whole record

. . . . [W]hen [however] a question of fact is essential

to the outcome of a particular legal determination that

implicates a defendant’s constitutional rights, and the

credibility of witnesses is not the primary issue, our

customary deference to the trial court’s factual findings

is tempered by a scrupulous examination of the record

to ascertain that the trial court’s factual findings are

supported by substantial evidence. . . . [When] the

legal conclusions of the court are challenged, [our
review is plenary, and] we must determine whether

they are legally and logically correct and whether they

find support in the facts set [forth] in the memorandum

of decision . . . .’’ (Internal quotation marks omitted.)

State v. Gonzalez, supra, 302 Conn. 295–96.

In the present case, the defendant does not challenge

the court’s factual findings. Instead, the defendant challenges only the court’s legal conclusions on the basis

of those findings. We conclude that the record supports

the conclusion that defendant was not interrogated as

that term is understood in Miranda, and, therefore, we

need not reach the question of whether he was held in

custody. In reaching this conclusion, we find State v.

Vitale, 197 Conn. 396, 497 A.2d 956 (1985), to be instructive. In Vitale, an incarcerated defendant made

unprompted inculpatory statements to a uniformed correction officer who, having attended high school with

that defendant, had started a conversation with him

about ‘‘ ‘high school and playing football and things.’ ’’

Id., 410. Despite the fact that the conversation in Vitale

had turned to ‘‘why that defendant had been arrested’’;

id.; before the defendant made the inculpatory statements, our Supreme Court concluded that that defendant’s statements were not made in response to

interrogation. Id., 412. Rather, the court determined that

the defendant’s inculpatory statements ‘‘were volunteered by the defendant during a general conversation

between him and [the correction officer], wherein the

defendant spoke freely about the offenses with which

he was charged.’’ Id.

The facts we confront in the present case are akin

to those found in Vitale. Here, the record demonstrates

that the defendant freely volunteered the statements

during a neutral conversation with Duquette, who initiated the conversation in order to relieve the tension

of a stressful and invasive intake process. Duquette

testified that he recognized the defendant from growing

up in the same town, called the defendant by his street

name, asked the defendant whether he was in court

for what had occurred in New Britain, and told the

defendant that he recognized his girlfriend from growing up in New Britain for the purpose of making an

uncomfortable situation more cordial. In our view,

those questions fairly can be construed as no more

than small talk initiated by a correction officer for the

purpose of defusing a stressful and invasive intake process and not for the purpose of soliciting incriminating

information from the defendant. See id., 412; see also

Rhode Island v.Innis, supra, 446 U.S. 300 (‘‘‘[i]nterrogation,’ as conceptualized in the Miranda opinion, must

reflect a measure of compulsion above and beyond that

inherent in custody itself’’). The record reveals that,

indeed, the only question that plausibly could have been

seen as focused on the defendant’s potential criminal

liability concerned whether the defendant had been in

court in connection with the New Britain murder. The
answer to that question, at its most harmfulness to

the defendant, could have elicited an answer that yes,

indeed, that was the reason for his presence in court

on that date. That answer, however, would not have

been inculpatory. The defendant’s affirmation of the

reason for his presence at court would have added

nothing to the state’s case; it would have contributed

nothing to satisfy the state’s burden of proving the

defendant’s guilt. The defendant’s frank answer to

Duquette’s question about his presence in court could

provide no proof of the defendant’s guilt. As such, the

question was not reasonably likely to elicit an incriminating response from the defendant.

In addition, the record does not disclose that Cashman, through direct questioning or other conduct, subjected the defendant to any questioning that elicited an

incriminating response.9 As with Duquette, Cashman

did not elicit from the defendant any of his unforeseeably volunteered statements regarding his culpability. State v. Canady, supra, 297 Conn. 335–36 (law

enforcement cannot be held accountable for unforeseeable results of their questions or conduct). On the basis

of the court’s findings, which are supported by the

record, we conclude that the trial court properly determined that the defendant had not been subject to interrogation for the purposes of Miranda when he made

the statements at the Walker facility. Having concluded

that the defendant was not subject to an interrogation

as contemplated in Miranda, we need not consider

whether, in addition, he was in custody for Miranda

purposes at the time of the conversations in question.

Similarly, our conclusion that the defendant was not

subject to interrogation belies his sixth amendment

claim that statements that were ‘‘deliberately elicited

from him after he had been indicted and in the absence

of his counsel’’; Massiah v. United States, supra, 377

U.S. 206; were used against him at trial. ‘‘Because the

right to counsel applies only when the government

deliberately elicits incriminating information, the defendant’s sixth amendment right to counsel was not violated. United States v. Henry, 447 U.S. 264, 270, 100 S.

Ct. 2183, 2186, 65 L. Ed. 2d 115 (1980); Massiah v.

United States, [supra, 206].’’ State v. Vitale, supra, 197

Conn. 412. Accordingly, we conclude that the court

properly denied the defendant’s motion to suppress

the statements.

The judgment is affirmed.

In this opinion the other judges concurred.

1 At trial, the defendant testified on his own behalf. He did not dispute

killing the victim, cutting off the victim’s penis and flushing it down the

toilet, burning the victim’s car, purchasing the hand saws and using them

to dismember the victim’s body, and hiding the body parts in the woods.

Instead, he testified that he happened to pass by the murder scene, where

the victim was selling crack cocaine to Clarke, and, believing that the victim

was sexually assaulting Clarke, went berserk and ‘‘blacked out.’’ The court

instructed the jury on the defense of others; see General Statutes § 53a-19;

and extreme emotional disturbance affirmative defenses along with the
lesser included offenses of intentional manslaughter in the first degree,

reckless indifference manslaughter in the first degree, and manslaughter in

the second degree.

2

‘‘In State v. Boscarino, supra, 204 Conn. 723, [our Supreme Court] applied

three factors to determine whether joinder was proper: (1) whether the

factual similarities . . . [although] insufficient to make the evidence in each

case substantively admissible at the trial of the others, were significant

enough to impair the defendant’s right to the jury’s fair and independent

consideration of the evidence in each case; (2) whether [t]he prejudicial

impact of joinder in these cases was exacerbated by the violent nature of

the crimes with which the defendant was charged . . . [giving] the state

the opportunity to present the jury with the intimate details of each of these

offenses, an opportunity that would have been unavailable if the cases had

been tried separately; and (3) whether [t]he duration and complexity of the

trial also enhanced the likelihood that the jury would weigh the evidence

against the defendant cumulatively, rather than independently in each case.’’

(Internal quotation marks omitted.) State v. Payne, 303 Conn. 538, 543 n.2,

34 A.3d 370 (2012).

3 Specifically, the defendant’s counsel stated: ‘‘Your Honor, having read

the long form information I think there will be evidence offered from the

state that the victim suffered twenty-two stab wounds and there [were] two

areas of blunt force trauma to the victim which could have caused his death.

That would be I anticipate what the medical examiner’s testimony will be.

That’s [the murder charge]. Okay. Ordinarily . . . I would say that’s a strong

showing of violent, brutal and shocking conduct. Okay. But arguably [the

tampering charge] is even more shocking because [the tampering charge]

alleges severance of . . . the victim into fifteen separate pieces . . . . [So]

I think clearly under any notion of what is brutal, violent or shocking [the

tampering charge] . . . meets that definition.’’

4 During the hearing, the court asked the defendant, ‘‘what if evidence of

the [tampering] count comes in even if the case is severed,’’ to which defense

counsel responded, ‘‘clearly I anticipate that regardless of the court’s ruling

that . . . the facts surrounding the tampering are going to be part of the

[murder charge’s] factual basis to the fact finder.’’

5 The court also considered, and rejected, the defendant’sBoscarino claim,

stating that the court ‘‘cannot say that one act is necessarily more brutal

or shocking than any other. In [any] event based on the arguments of the

parties it appears that evidence of both acts would be admissible in both

counts whether they were severed or not.’’

6 The court instructed: ‘‘Each count alleges a separate crime. It will be

your duty to consider each count separately and decide the guilt or nonguilt

of the defendant. This means that the determination on one count or charge

does not automatically make the defendant guilty or not guilty on any other

count or charge.’’

7

It is important to note that this case concerns the denial of a defendant’s

motion for severance rather than a court’s consideration of a motion for

joinder filed by the state. In Payne, our Supreme Court rejected the blanket

rule in favor of joinder, and, instead, adopted a test for determining which

party has the burden to join or sever charges for trial based on the form

of the charging document. State v. Payne, supra, 303 Conn. 548–50. As

previously stated, if the charges are joined in a single information, the

defendant bears the burden of proving that the charges should be tried

separately. Id., 549. In contrast, ‘‘when charges are set forth in separate

informations . . . and the state has moved in the trial court to join the

multiple informations for trial, the state bears the burden of proving that

the defendant will not be substantially prejudiced by joinder pursuant to

Practice Book § 41-19. The state may satisfy this burden by proving, by a

preponderance of the evidence, either that the evidence in the cases is cross

admissible or that the defendant will not be unfairly prejudiced pursuant

to the Boscarino factors.’’ (Footnote omitted.) Id., 549–50.

8 The descriptor ‘‘N’’ word signifies a racially offensive and inflammatory term.

9 The defendant argues that Cashman subjected the defendant to Miranda

interrogation by remarking ‘‘Really?’’ after the defendant had finished his

statements. This argument is unavailing, however, because the defendant

voluntarily made all of the statements he then sought to suppress prior to

Cashman’s remark. Therefore, assuming, arguendo, that the remark would

constitute interrogation—a doubtful assumption under the circumstances—

the remark prompted no statement that the state sought to use against the

defendant in violation of his fifth amendment rights.