2003 Ct. Sup. 5358
No. MV02 201141Connecticut Superior Court, Judicial District of Windham Geographic Area 11 at Danielson.
April 25, 2003
MEMORANDUM OF DECISION
FOLEY, JUDGE.
On August 10, 2002 at approximately 1:42 AM the Connecticut State Police responded to a one-car motor vehicle accident in the Town of Killingly. The roadway on which the accident occurred was dry and straight according to the arrest warrant. There were no skid marks and no evasive action was apparent to the investigating officer. The pick-up truck was impacted against a tree. The emergency response personnel labored for two hours to extricate the operator of the vehicle from the cab of the truck. The operator was later identified as the defendant, known as Roger Boisvert.
The defendant was transferred by Life-Star helicopter to Wm. T Backus Hospital in Norwich, later to Hartford Hospital and on a later date to St. Francis Hospital in Hartford. The defendant’s injuries which consisted mostly of severe fractures of his lower left leg and hip were serious although not life-threatening. While in the various hospitals the defendant was medicated with various medications including oxycodone, gabapentine, mirtazapine and vioxx. Approximately one month after the accident, two days before his discharge from the St. Francis rehabilitation unit, a Connecticut State trooper visited the hospital and took a statement from the defendant. The defendant also signed a release of medical records authorization. The defendant now seeks to suppress the statements and the records released pursuant to the release form.
While the burden was on the State to prove the voluntariness of the statement, it was the defendant who proceeded with the evidence by calling Alan Wu, Ph.D., director of toxicology at the Hartford Hospital to testify to the effects of these medications. Dr. Wu was not a treating physician nor did he ever see the defendant. He was asked which of the medications taken by the defendant, if any, would effect his cognitive abilities. Dr. Wu indicated the four previously mentioned medications would have an effect. CT Page 5359
Oxycodone, he described as a powerful analgesic for pain control, which disassociates the mind from the pain, a drug abused for those very purposes. Mirtazapine is an anti-depressant for manic-depression for pain control, and a very potent inducer of tiredness, delirium. It is used for pain relief. He testified that gabapentine is an anti-convulsive, used following surgical procedures, such as those involved in auto accidents. It is a pain reliever for relief of his bone injuries. This medication induces sleepiness, tiredness, delirium, dizziness and confusion. Vioxx similarly, can induce sleepiness and dizziness. It is used for osteo-arthritis and bone pain. The doctor indicated that some persons who abuse drugs or are on drugs over an extended period of time build up a tolerance for these drugs. Dr. Wu testified that usually several days prior to discharge from a hospital, the patient would be weaned from the drugs. He indicated that the half life of these drugs was six to twenty-four hours.
Hospital records from the hospital note that on September 5th, 2002 the patient was cognitively intact, motivated and cooperative with therapy. On the morning of September 8th at seven in the morning the patient was alert and responsive. The nurse’s notes, State’s Exhibit 2, show that between midnight and 11 am, no medication was administered. The statement of the defendant was started at 0906 AM and concluded at 0935 AM (State’s Exhibit 4). The nurse’s notes indicate that at 11 AM a Tylox tab was administered for pain. A second Tylox was administered at 4 PM in the afternoon.
Dr. Wu testified that a Tylox is a combination of Tylenol (acetophinomen) and oxycodone. For at least the 9 hours prior to the statement to the trooper, no cognitively impairing medication was administered. The nurse’s notes for the prior day, to determine the actual time of the administration of the last Tylox, were not offered into evidence, although they had been subpoenaed.
The defendant testified at the suppression hearing that he could remember nothing of what happened prior to the accident and nothing of what transpired in the hospital. He said he would not have knowingly made a statement to the police. He was able to recall that “people told me not to make no statement when I was in the hospital, if a trooper comes up don’t say nothing.” He further said he “would never have admitted to drinking a 12 pack of beer, that would just be hanging myself.”
The court finds the testimony of the defendant to be completely self-serving and non-credible. When the defendant was forthrightly answering preliminary questions of his attorney he was sitting quietly and up-right in the witness chair. When the questions were put to him, CT Page 5360 even by his own lawyer, regarding the accident and the statement he gave to the police, Mr. Boisvert robustly rocked back and forth in the witness box. His demeanor and conduct was extreme. Questions regarding his wife, his family, his job, his injuries, all achieved one form of response. Anything to do with the statement, the accident or his memory, all elicited an entirely different demeanor.
The testimony of the trooper was plausible, credible and consistent with objectively verifiable facts. The trooper’s candid admission that he was personally unfamiliar with the locations in the defendant’s statement, lend further credence to the notion that the information supplied came from the defendant himself.
“The use of drugs or the ingestion of alcoholic beverages does not in and of itself render a subsequent admission inadmissible. . . . It is one factor to be considered in determining the voluntariness of a statement.”State v. Stankowski, 184 Conn. 121, 134, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 588 (1981). State v. Wynter, 19 Conn. App. 654, 658 (1989).
An examination of the record reveals no evidence of coercive police activity. The trooper told he defendant that he was not there to arrest Mr. Boisvert. The trooper made no threats or promises to the defendant. The conversation was pleasant and cordial. Moreover, the evidence supports a conclusion that the defendant was alert and responsive. The defendant thanked the trooper for having delivered $1,500 to his wife which money had been in the defendant’s pocket at the time of the accident . . . It was early in the morning, the defendant appeared rested and not tired. The defendant did not appear to be in obvious pain; there was nothing coercive in the conduct of the trooper. The statement was coherent and voluntarily made. See State v. Samuel Davis, 69 Conn. App. 717
(2002).
The motion to suppress all statements made by the defendant while he was hospitalized and receiving pain medication is denied.
Foley, J. CT Page 5361