State v. ChiarizioState v. Chiarizio
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- Before:
- Borden
The defendant appeals from the judgment of conviction, after a jury trial, of three counts of professional gambling in violation of
The facts are not in dispute. Pursuant to
Drescher’s affidavit disclosed, inter alia, that the main business of the lounge was the service of food and of alcoholic beverages. The affidavit also stated that telephone company records revealed that telephone facility 666-4653 was located within the lounge premises, that it was leased to the business, and that there were two extensions to the facility within the lounge. The affidavit further disclosed that there were three telephones located on or behind the bar and in the *676kitchen, all being extensions of number 666-4653, and that the defendant was using these telephones to engage in professional gambling and to transmit and receive gambling information.
The application and affidavit were submitted to the wiretap panel of three judges, which ordered “the interception of the wire communications of [the defendant] and other unknown persons, and transmitted over facility no(s). 666-4653, located at 244 Hartford Avenue, Newington, Conn., The Ivy Hill Lounge.” The order contained the following language: “The panel, pursuant to Section 54-41d, of the General Statutes, has unanimously determined on the basis of the facts submitted by the applicant in [Drescher’s affidavit] that there is probable cause to believe that” the nine findings required by
The wiretap order was executed, resulting in three reels of tape recordings containing the defendant’s conversations over the telephones in the lounge. The defendant filed three separate motions to suppress his intercepted conversations. The first claim was, inter alia, that “[t]he facilities from which the wire communications were intercepted are public and the application for [the] order . . . makes no application of special need sufficient to support the [order] . . . .” The court, Hale, J., denied this motion. The second and third motions claimed, respectively, (1) that the order was facially invalid because the issuing panel failed to state the grounds for its determinations of probable cause *677as required by General Statues
I
The Defendant’s Motions to Suppress
A
THE PANEL’S FAILURE TO DETERMINE WHETHER THE FACILITY WAS PUBLIC AND, IF SO, WHETHER A SPECIAL NEED EXISTED
The defendant’s first claim of error involves
First, the statute does not, as the defendant argues, require that the issuing panel make a specific finding as to whether the facility is public and, if so, whether a special need exists.
There was nothing in the application or affidavit in this case to suggest to the panel that the telephone in *679the lounge was a public telephone. We simply do not find in the statute the investigative and two-step finding process which the defendant urges. The language of the panel, which tracked the language of the statute and added the caveat, “if applicable,” was quite proper. In State v. Levine, 5 Conn. App. 207, 209, 497 A.2d 774, cert. denied, 197 Conn. 816, 500 A.2d 1337 (1985), we held that a panel’s finding, which was in the alternative and tracked the statutory language, was proper. A panel’s finding which is in the subjunctive and tracks the statutory language is equally proper.
Second, the evidence adduced by the defendant at the hearing on this motion to suppress could not, even if taken as true, establish that any of the extensions of the tapped telephone facility in the lounge was a “public” facility as that term is used in
The word, “public,” must be interpreted according to its use in context. 73 C.J.S. 330, Public. One of *680its usual meanings as an adjective is, “operated for the benefit of the public, rather than for the benefit of a private individual, and it means the public generally has the free and unrestricted right to use it.” (Footnotes omitted.) Id., 331. “Public” means “accessible to or shared by all members of the community.” Webster’s Third International Dictionary. It is clear that this is the sense which the legislature intended by its reference in
One does not ordinarily consider a telephone leased to a private commercial establishment, even an establishment which is open to the public as in this case, and made available principally to the establishment’s patrons, as a public telephone. Statutory words and phrases, which are neither technical nor words and phrases of art, are construed “according to the commonly approved usage of the language . . . .”
In this case, none of the telephone extensions in the lounge was a “public” telephone facility. Although they were available to various patrons of the lounge within certain limitations set by the owner of the lounge, and although on occasion nonpatrons would use one of them within the same limitations, there was no showing here that the public had a free and unfettered right to use them, and that they were accessible to or shared by all members of the public.
*681B
THE DEFENDANT’S CLAIM OF FACIAL INVALIDITY OF THE ORDER
The defendant claims that the wiretap order was facially invalid. This claim has two facets: (1) the order of the panel contains findings in the alternative, some of which are inconsistent with each other; and (2) the order does not comply with the requirement of
The first facet of the defendant’s argument is disposed of by State v. Levine, supra. Specific written findings of the panel in the alternate are findings nonetheless; id.; and the fact that they tracked the statutory language and that some of them may appear inconsistent does not vitiate their validity as findings, as long as they meet the statutory requirements of
The second facet of the defendant’s argument is more troublesome, but has also been rejected by us. In State v. Mastrianni, 5 Conn. App. 634, 501 A.2d 772 (1985) (per curiam), we rejected a similar challenge to a wiretap order. We address the defendant’s claim here in less summary fashion, however, because of the recurring nature of the claim.
The wiretap order began by noting that the panel “by unanimous vote . . . orders the interception of the wire communications of [the defendant] and other unknown persons” transmitted over the lounge’s telephone facility. The order then stated, inter alia, as follows: “The panel, pursuant to
There can be no quarrel with the fact that the wiretap order was accompanied by a written statement of the panel which set forth in detail its determinations of probable cause as required by
“A statute, even [our wiretap statute] which has been held to be subject to strict construction; State v. Formica, [3 Conn. App. 477, 481, 489 A.2d 1060, cert. denied, 196 Conn. 806, 494 A.2d 903 (1985)]; must be read with common sense, so as to accomplish a reasonable result and not to thwart its purpose.” State v. *683Ralston, 7 Conn. App. 660, 682, 510 A.2d 1346 (1986). The purpose of the statutory requirement that the panel set forth in detail its grounds for the issuance of the order is two-fold: (1) to ensure that the panel will give its full attention to the issue of whether an order should issue; and (2) to permit a reasonable review by the trial court or an appellate court of the propriety of the order. The first purpose is fulfilled by the signed statement of the panel that it “has unanimously determined on the basis of the facts submitted by the applicant in [Drescher’s affidavit] that there is probable cause to believe that” the nine requirements of
This reading of
The defendant’s argument would require a panel to do more than to state its unanimous determination that probable cause exists based on the material presented to it, to state in detail its findings of probable cause as to the nine factors specified in
When a reviewing court, such as a trial court acting on a motion to suppress or an appellate court review*685ing a trial court’s decision on such a motion, issues a written decision in response to a defendant’s challenge to the validity of a wiretap order, it ordinarily does so in response to specific claims of defect. Thus, the issues addressed by the court are necessarily confined by the nature of the claims of defect. The defendant’s argument would require the panel to construct a written memorandum of decision in the absence of any such claims of defect and, presumably, to anticipate them before they are even made. We cannot attribute to the legislature the intent to create such an unprecedented and bizarre judicial procedure. See Connecticut Natural Gas Corporation v. DPUC, 1 Conn. App. 1, 4, 467 A.2d 679 (1983).
Furthermore, such a requirement would undoubtedly require time, a commodity which is ordinarily in short supply when the need for a wiretap is demonstrated. Several of the probable cause determinations required by
C
THE DEFENDANT’S CLAIM THAT THE STATE’S ATTORNEY WAS UNAUTHORIZED TO APPLY
The defendant’s third attack on the validity of the wiretap order is that the state’s attorney for the judicial district of Hartford-New Britain was not an authorized applicant for a wiretap order because he was not a “principal prosecuting attorney of any political subdivision” of the state within the meaning of
The basic authority of the states to conduct wiretapping derives from chapter 119 of the United States Code, entitled “Wire Interception and Interception of Oral Communications.” The interception and use of wire communications is deemed to be illegal unless specifically authorized by that chapter.
The defendant argues that since county government was abolished in Connecticut effective October 1,1960, *687the state’s attorney for the Hartford-New Britain judicial district is an official of the judicial district and not of a county, and that a judicial district is merely a geographical division without powers of legislation, taxation, appropriation or self-government. Therefore, he claims, a judicial district is not a “political subdivision” within the meaning of
It is clear from the legislative history of
*688This reading of the federal use of the term is fully consistent with Connecticut law. That law makes clear that “political subdivision” is a comprehensive term which refers to any division of the state made for the purpose of carrying out public governmental functions. State ex rel. Maisano v. Mitchell, 155 Conn. 256, 263, 231 A.2d 539 (1967). Certainly, the function of law enforcement, which our statutes have lodged in the offices of both the chief state’s attorney and the various state’s attorneys for the judicial districts, is such a function.
Indeed, in 1971, when our wiretap statute was first enacted, only the state’s attorneys were authorized to make applications.6 See
II
The Defendant’s Evidentiary Claims
The defendant makes three evidentiary claims of error. We find no merit to any of them.
A
The defendant claims that the court erred by admitting into evidence a copy of the order by the judicial panel to the telephone company requiring the company *689to provide technical assistance to the state in placing the wiretap. The defendant’s objection was that the exhibit was hearsay, that the statutory business entry exception to the hearsay rule was not complied with, and that the’.Mbit was irrelevant. The court overruled the defendant’s objection and the defendant duly excepted.
On appeal, the state concedes that it did not establish at trial all the necessary prerequisites of the business entry statute. We agree with the state, however, that the exhibit was properly admitted on other grounds.
The business entry statute;
The sole question on appeal, therefore, is whether the exhibit was relevant and, if so, whether its relevance outweighed the claimed prejudicial effect. Prior to the admission of the exhibit, a telephone company representive had testified to the actions of the telephone company in rendering assistance to the police in intercepting telephone calls. Such conduct would be criminal if not specifically authorized. 18U.S.C.
*690B
The defendant’s second evidentiary claim is a three-pronged challenge to the admission of the tape recordings of his intercepted telephone conversations. We reject this claim.
The defendant first argues that the tapes were admitted without sufficient authentication that they were fair and accurate reproductions of the intercepted conversations. Despite the unsupported assertion in his brief that he made this claim at the trial, he has not pointed to any transcript reference where he did so. Nor has he replied to the state’s argument in its brief and at oral argument that he made no such objection at the trial. Under these circumstances, therefore, we decline to review this prong of the defendant’s claim. Osborne v. Osborne, 2 Conn. App. 635, 641, 482 A.2d 77 (1984).
In this regard, the defendant also argues that the state did not sufficiently establish the chain of custody of the tapes so as to preclude the likelihood of tampering. It is not necessary to review this claim at any length. Suffice it to say that the trial court had ample evidence to support a finding of a reasonable probability that the tapes were not changed in significant respects. State v. Heinz, 1 Conn. App. 540, 544-45, 473 A.2d 1242, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984).
The defendant next argues that the tapes were not sealed in the time and manner required by
The hearing held by the trial court on this issue disclosed the following: Drescher monitored the wiretaps, which took place on October 20, 21 and 22, 1979, and made separate daily recordings of the intercepted conversations. He sealed each tape in a box with a fiber sealing tape, and sealed each box in a manila envelope with the same fiber tape. He kept the tapes of the October 20 and 21 conversations in his possession until October 22, when he delivered them to the criminal intelligence unit of the state police. He kept the tape of the October 22 conversations in his possession until October 23, when he delivered it to the criminal intelligence unit. On November 7,1979, the criminal intelligence unit made copies of the tapes and delivered the originals on November 9,1979, to Carl Testo, who was then the secretary to the judicial wiretap panel.
The evidence further established that the reason for the delay between October 23,1979, and November 9, 1979, was as follows: Detective Thomas Brady of the criminal intelligence unit received the tapes from Drescher and kept them in a special vault until they were copied. At that time, Brady had a new partner who was attending school in Florida and Brady’s unit was also busy working on three other wiretaps. Therefore, the tape in question could not immediately be copied and delivered to Testo.
When the tapes were delivered to Testo they were in envelopes which were sealed with a fiber tape. Testo did not open the envelopes. He signed his name, as secretary of the panel, along the edge of the sealing tape on each envelope, wrote the date on the envelope, and placed the envelopes in a vault designated for the *692use of the panel. He did all this pursuant to established procedures for handling wiretap material. He knew of no formal vote or written regulation of the panel establishing this procedure. In 1983, Testo was replaced as secretary to the wiretap panel by Daniel Horwitch, who was the secretary at the time of the trial of this case in 1984. During the time from November 9, 1979, through the time of trial only Testo and Horwitch, as secretaries to the panel, had access to the vault which contained the tapes.
The defendant claims (1) that the sealing of the tapes was not in accordance with the statute, (2) that they were sealed too late, and (3) that they were delivered to an unauthorized person. We disagree.
We agree with the defendant that the statute requires that the tapes be sealed upon receipt by the panel’s custodian. We do not agree, however, that the provision of the statute, namely, that the tapes be “sealed under [the panel’s] directions,” mandates that those directions be in any particular form. Those directions may be evidenced, as they were here, by an established procedure which bears more than ample indicia of safety and reliability. Testo received them in a safely sealed condition, adopted that sealing as his own by signing his name and the date along the edge of the sealing tape, and kept them in a designated, restricted and secure vault. Horwitch continued that process when he assumed his duties as secretary to the panel. This procedure comported with the sealing requirements of the statute.
With respect to the defendant’s claim of delay in transmission of the tapes from the police to Testo, the defendant concedes that the word, “immediately,” means without unreasonable delay, considering the nature of the task to be performed. Bailey v. Bruneau’s Truck Service, Inc., 149 Conn. 46, 52, 175 A.2d 372 *693(1961); Krattenstein v. Thomas, 7 Conn. App. 604, 609, 509 A.2d 1079 (1986). The federal wiretap statute contains language essentially identical to our statute. “Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.”
The defendant’s final challenge to the admission of the tapes is that Testo was not an authorized custodian of the tapes because there was no written directive or authorization to him to perform that function. This argument is without merit. The statute does not mandate that the authorization be in any particular form. The trial court found, on the basis of Testo’s testimony, that he had the requisite authority. Public officials are presumed, in the absence of evidence to the contrary, to have performed their functions lawfully. Patry v. Board of Trustees, 190 Conn. 460, 477, 461 A.2d 443 (1983). The trial court’s finding was not clearly erroneous.
*694c
The defendant’s final evidentiary claim is that the trial court erred in restricting his cross-examination of Drescher. This claim requires little discussion.
Drescher was able to identify the defendant’s voice on each tape because he had heard the defendant speak in the lounge several times, albeit not over the telephone. On cross-examination the defendant sought to challenge the credibility of Drescher’s identification of the defendant’s voice by asking Drescher to identify other voices on the tapes. The court sustained the state’s objection, and the defendant excepted.
There was no showing that Drescher had heard any of the other voices, which the defendant sought to have him identify, before hearing them on the tapes. Thus, it would have been a fruitless venture to ask him to identify them, and would have offered the jury nothing as a basis on which to test the credibility of his identification of the defendant’s voice on the tapes. Under these circumstances, the court’s ruling neither deprived the defendant of his constitutional right of cross-examination nor was it an abuse of the court’s discretion in limiting that cross-examination.
There is no error.
In this opinion the other judges concurred.
Notes
The reproduced trial court record supplied to us in this appeal does not indicate on its face any action by the court on the third motion to suppress, nor does the defendant in his brief supply a transcript reference to any oral decision by the trial court. See
At oral argument in this court, the defendant, for the first time, suggested that the word, “facilities,” as used in
There was also a pay telephone in the lobby of the lounge which is not involved in this case.
Senator Jay W. Jackson stated: “In effect, we have a search warrant procedure which will be done by the three judges. I think that the three judge panel will give the protection which is needed. You will have reason*684ing on the part of the three judges and you will not have a precipitous claim made by a law enforcement official to an individual judge who may perhaps, not be able to give adequate consideration to the application. . . . I would also point out that the three judge panel, must be unanimous before any wiretap can be instituted.” 14 S. Proc., Pt. 2, 1971 Sess., p. 870.
Representative Albert W. Cretella, Jr., stated: “I point out that in effect a wiretap as it is being used in this bill, has the same effect as a search warrant.” 14 H. Proc., Pt. 2, 1971 Sess., p. 845.
It is of no moment, moreover, that the initial version of the wiretap statute referred to the applicant as “[t]he state’s attorney for the county in which the interception is to be conducted”; (emphasis added),