51 Conn. App. 59 | Conn. App. Ct. | 1998
Opinion
The defendant, Luis Martinez, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a),
The following facts and procedural history are relevant to the resolution of this appeal. On September 15, 1994, the trial court issued a search and seizure warrant to search the first floor apartment at 54 Crown Street in Waterbury after determining that probable cause existed. The defendant’s arrest stemmed from the seizure of a handgun, ammunition, bloody clothing, photographs and a wallet from the apartment following the execution of the warrant.
The defendant filed a motion to suppress
I
The defendant claims that the trial court improperly denied his motion to suppress the sweatshirt seized within the apartment. Specifically, the defendant claims that the affidavit in support of the search warrant (1) failed to establish probable cause and (2), in the alternative, was based on “stale” information.
The warrant application affidavit set forth the following facts. On September 14, 1994, an investigation led the police to the Crown Street apartment, the possible location of robbery suspects. After the police discovered that one of the residents, Demarise Williams, fit
Williams revealed that on September 12, 1994, at approximately 10 p.m., the defendant came into the apartment in Waterbury where Williams and his girlfriend, Darlene Saunders, were watching television. The defendant told Williams that he wanted Williams to go with him to rob a man who was sitting on the wall by a nearby church. Williams noticed that the defendant was in possession of a gun. The defendant and Williams walked to the church wall, which was located at the corner of Beacon and Crown Streets, a short distance from the apartment. Williams walked part of the way across the street with the defendant. The defendant walked up to the victim, stood directly in front of him and told him to take everything out of his pockets. When the victim failed to follow the directions, the defendant shot him twice.
The affidavit also contained information provided by Saunders regarding the defendant’s presence in the apartment prior to and after the shooting. Saunders reported that upon the defendant’s return to the apartment after the shooting, the defendant told her that he had shot a man six times in the chest. Although the victim had claimed to have no money, the defendant
A
Initially, the defendant claims that the affidavit failed to set forth facts supporting a finding of probable cause for the seizure of the sweatshirt because there was no “credible or reliable information for the issuing magistrate to conclude there was a fair probability that bloody clothing would be found at that location.”
“In State v. Barton, [219 Conn. 529, 544, 594 A.2d 917 (1991)], our Supreme Court adopted the ‘totality of the circumstances’ standard for determining probable cause used by the federal courts pursuant to the decision of the United States Supreme Court in Illinois v.
“[0]ne of the most common factors used to evaluate the reliability of an informant’s information is the corroboration of the information by the police. . . . The theory of corroboration is that a statement [that] has been shown true in some respects is remarkably likely to be true in the remaining respects.” (Internal quotation marks omitted.) State v. Ruscoe, 212 Conn. 223, 230-31, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990). “ ‘When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the
“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched.” (Internal quotation marks omitted.) State v. Marsala, supra, 42 Conn. App. 6, quoting State v. Barton, supra, 219 Conn. 548. “Furthermore, it is axiomatic that [a] significantly lower quantum of proof is required to establish probable cause than guilt. . . . State v. Vincent, 229 Conn. 164, [172], 640 A.2d 94 (1994).” (Internal quotation marks omitted.) State v. Bova, 240 Conn. 210, 232, 690 A.2d 1370 (1997).
“This court’s scope of review, in evaluating the existence of probable cause, is limited to the facts that appear [within] the four comers of the affidavit or facts that may be properly inferred from those facts. State v. Couture, 194 Conn. 530, 536, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). In so doing, we must use common sense; State v. Castano, 25 Conn. App. 99, 101, 592 A.2d 977 (1991) ; and defer to the reasonable inferences drawn by the [issuing] magistrate. State v. Barton, supra, 219 Conn. 544-45. Our role is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed. State v. Johnson, supra, 219 Conn. 565. . . . State v. Anziano, [26 Conn. App. 667, 672, 603 A.2d 415 (1992) ].” (Internal quotation marks omitted.) State v. Marsala, supra, 42 Conn. App. 7. “[T]he resolution of doubtful or marginal cases . . . should be largely
In the present case, the magistrate reasonably could have inferred that the information provided by Williams and Saunders was reliable. First, the warrant affidavit indicates that the investigation led the police to obtain information from Saunders that corroborated the information provided by Williams. With respect to Saunders, a citizen informant is “considered more deserving of credibility than are underworld informers, and courts have accordingly tended to examine the basis and sufficiency of a citizen informer’s information more closely than his credibility.” State v. Barton, supra, 219 Conn. 542 n.10; see also State v. Daley, 189 Conn. 717, 723-24, 458 A.2d 1147 (1983). Second, the informants, Williams and Saunders, were not anonymous. “Because [their] identity was known to the police, the informants] could expect adverse consequences if the information that [they] provided was erroneous.” State v. Barton, supra, 550. In Williams’ case, his statement indicating his involvement in the events that transpired that evening constituted a declaration against penal interest. “Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility—sufficient at least to support a finding of probable cause to search. . . . Although the informant’s motive may be no loftier than the hope of leniency on other charges . . . courts have thought that one who knows the police are already in a position to charge him with a serious crime will not lightly undertake to divert the police down blind
Even if we assume, arguendo, that the police investigation did not provide any corroboration of Williams’ statement because, as the defendant claims, Williams’ information was corroborated by Saunders, Williams’ girlfriend. Because Saunders’ motive to shift blame to the defendant categorizes her as being between a first time informant and a citizen informant, the magistrate could still reasonably have inferred that their statements were credible. While the affiants could have strengthened the warrant application through independent corroboration of some of the details contained within the affidavit, the affidavit sufficiently set forth underlying factual circumstances from which the police could have concluded that the informants were credible or that the information was reliable. See State v. Barton, supra, 219 Conn. 551. A review of the facts contained within the four comers of the affidavit indicates that the defendant was at the apartment with a gun before the shooting, was positioned directly in front of the victim when he shot him, returned to the apartment immediately after the shooting and remained at the apartment until the following afternoon.
“The nexus between the items sought and the place to be searched may be inferred from the type of crime, the nature of the evidence, the extent of an opportunity for concealment and normal inferences as to where a criminal would likely hide the item. . . . State v. Vincent, 30 Conn. App. 249, 257, 620 A.2d 152 (1993), aff'd, 229 Conn. 164, 640 A.2d 94 (1994).” (Internal quotation marks omitted.) State v. Ives, 37 Conn. App. 40, 46, 654 A.2d 789, cert. denied, 234 Conn. 906, 659 A.2d 1209 (1995). Although this could be considered a marginal case if we accept the defendant’s argument that the information came from informants who were motivated to shift the blame to him and that there was a lack of
B
The defendant claims in the alternative that even if the information in the affidavit is found to provide a substantial basis for believing that bloody clothing would be found at the apartment, the information was stale and, consequently, could not provide probable cause. The defendant concedes that this claim was not properly preserved at trial. The defendant maintains, however, that his claim is reviewable pursuant to State
“It is undisputed that the determination of probable cause to conduct a search depends in part on the finding of facts so closely related to the time of the issuance of the warrant as to justify a belief in the continued existence of probable cause at that time. . . . Although it is reasonable to infer that probable cause dwindles as time passes, no single rule can be applied to determine when information has become too old to be rehable. The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating
“Consequently, whether a reasonable likelihood exists that evidence identified in the warrant affidavit will be found on the subject premises is a determination that must be made on a case-by-case basis. Accordingly, we have refused to adopt an arbitrary cutoff date, expressed ... in days, weeks or months, beyond which probable cause ceases to exist. . . . Moreover, we have recognized that [i]f items of property are innocuous in themselves or not particularly incriminating and are likely to remain on the premises, that fact is an important factor to be considered in determining the staleness of a warrant.” (Citation omitted; internal quotation marks omitted.) State v. Bova, supra, 240 Conn. 232-33.
In this case, the crimes occurred on September 12, 1994, the information was obtained from Williams and Saunders on September 14, 1994, and the search warrant was obtained on September 15, 1994. In that short period of time, it was not unreasonable for the magistrate to infer from the defendant’s remaining at the apartment and warning Saunders that she would not leave the apartment alive if she contacted the police that he was comfortable remaining there and felt it was a safe place and, therefore, that the apartment was a logical place for the defendant to conceal anything connected to the crimes. “Such an inference is not certainty, but a certainty is not required.” State v. Couture, supra, 194 Conn. 544.
The issuing magistrate, therefore, reasonably could have inferred that it was likely that the sweatshirt was in the apartment. Under the circumstances, we conclude that the three days between the night of the shooting and the challenged search did not render the information stale so as to preclude a finding that probable cause existed to issue a warrant. As a result, there was no clear constitutional violation, and the defendant was not clearly deprived of a fair trial.
II
The defendant finally claims that the trial court abused its discretion by (1) permitting the state to present the testimony of Chris Lovejoy when it was irrelevant and highly prejudicial and (2) admitting the testimony of a criminalist regarding the presence of blood and gunpowder residue on the sweatshirt because it was irrelevant and prejudicial. We disagree.
After Williams testified that the defendant was about four feet in front of the victim when he fired the gun and was wearing the Browns sweatshirt at the time of the
“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a show
A
The defendant claims that the trial court abused its discretion by permitting the state to present the testimony of Lovejoy because it was irrelevant and prejudicial to the defendant. Specifically, the defendant claims that the testimony was irrelevant because it was not connected to the issue of whether the defendant shot the victim on September 12, 1994.
Lovejoy’s testimony tended to support or corroborate the existence of other direct evidence in the case supplied by Williams and Saunders that the defendant wore a Browns sweatshirt on the evening of September 12, 1994. As such, it was relevant and properly admissible. We conclude, therefore, that the trial court did not abuse its discretion in permitting the state to present Lovejoy’s testimony.
The defendant claims that the trial court abused its discretion by admitting the testimony of Johannes because it was irrelevant and prejudicial. Specifically, the defendant argues that the testimony lacked a sufficient connection to the crimes or the defendant.
In State v. Jeffrey, supra, 220 Conn. 704-705, the defendant argued that a urine stained blouse should have been excluded as irrelevant because the state criminalist’s testimony did not exclude the possibility that the urine was from a source other than the defendant. The defendant argues that State v. Moody, 214 Conn. 616, 573 A.2d 716 (1990), rather than Jeffrey, controls this case. In Jeffrey, our Supreme Court distinguished Moody, as we do in this case, because in Moody it could not be determined whether a stain on the defendant’s shoe was blood. The Jeffrey court held that “[t]he uncontroverted evidence of urine, not just something that might or might not have been urine, distinguishes this case from Moody and leads us to conclude that the shirt and test results were properly admitted into evidence.” State v. Jeffrey, supra, 705.
In this case, while the findings were inconclusive as to the blood type, Johannes was able positively to identify human blood in the stain on the sweatshirt. Furthermore, while it is true that evidence of human blood on the sweatshirt does not by itself indicate that the defendant caused the stain or exclude other possible explanations for its presence, these objections do not require its exclusion because “evidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion, even to a slight degree.” (Internal quotation marks omitted.) Id., 706. As such, to be relevant and properly admissible, it was not necessary that the evidence prove conclusively that the defendant’s or the victim’s blood was on the
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”
General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”
General Statutes § 53a-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commit s or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of flight therefrom, he . . . causes the death of a person . . . .”
The trial court concluded that, since the defendant had his girlfriend’s permission to stay at the apartment when no one else was home and aut hority
The plain view doctrine establishes an exception to the warrant requirement and “is based upon the premise that the police need not ignore incriminating evidence in plain view while they are . . . entitled to be in a position to view the items seized.” (Internal quotation marks omitted.) State v. Eady, 245 Conn. 464, 470, 733 A.2d 95 (1998).
The defendant limits the present claim to the denial of the motion to suppress as to the sweatshirt.
When the defendant initially pulled the trigger, the gun clicked but did not fire. The defendant then opened the cylinder of the gun, shut it and began firing at the victim.
Although the defendant makes reference to federal case law that developed the “totality of the circumstances” standard; see Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); the defendant analyzes this claim using state case law. We, therefore, will analyze his claim as a matter of state law. See State v. Otero, 49 Conn. App. 459, 463 n.7, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998).
The defendant argues in his brief that Williams was motivated to shift blame to the defendant in light of the fact that the police had information independent of his admission that connected him to the shooting. Furthermore, Saunders’ motivation to shift blame to the defendant stemmed from her role as Williams’ girlfriend.
“Under Golding, a defendant can prevail on an unpreserved claim of constitutional error only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. ...” (Citations omitted; internal quotation marks omitted.) State v. Otero, 49 Conn. App. 459, 463 n.6, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998).
The defendant appears to assert in his brief that the admission of evidence that was improperly seized is subject to a claim that the seizure was done in violation of the fourth and fourteenth amendments to the United States constitution. Since the defendant analyzes his claim using state case law, however, we will analyze his claim as a matter of state law. See State v. Otero, 49 Conn. App. 459, 463 n.7, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998).
The defendant argues in his brief that State v. DeChamplain, 179 Conn. 522, 427 A.2d 1338 (1980), rather than State v. Couture, supra, 194 Conn.
Saunders also testified that the defendant was wearing a Browns brown and orange sweatshirt on the evening of September 12, 1994.
Prior to Johannes’ testimony, the defendant objected to the testimony that Johannes was about to provide because it called for speculation, as the blood could not be connected to the victim or the defendant and the nitrates and nitrites could not be connected to the gun or this type of gun. The trial court concluded that the “proffer reveals circumstantial evidence that the jury can ponder and determine and possibly make the inference that the state hopes for in terms of tying it to the defendant, and the imperfections, if any, as to certainty go to the weight and the cross-examination that may take place at the hands of the defendant.”
The following colloquy took place during the state’s direct examination of Johannes:
“Q. And on what location of [the sweatshirt] did you locate ... a stain [that tested positive for blood]?
“A. It was a stain that was located on the left cuff of the garment.
“Q. And did you . . . perform further testing?
“A. Yes, I did. . . . The next test that I performed was a test for human hemoglobin. ... If human hemoglobin was present in the sample, what I would see is a white band form between the two walls. And in this case, I did see that white band indicating to me that there was human blood in that stain.
“Q. And was your opinion based on a reasonable degree of scientific certainty?
“A. Yes, it was.
“Q. Did you perform additional testing . . . ?
“A. The next test that I performed was I was looking for the ABO antigens in order to try to determine what ABO blood type would be present in this stain. . . . My findings were inconclusive.
“Q. Did you also perform testing on the sweatshirt, for gun residue?
“A. Yes, I did.
“Q. And did you obtain any positive results in connection with that testing?
“A. Yes, I did. . . . Both of the cuffs were positive for nitrates and nitrites, and the front waistband area, just along the waistband.”
The trial court overruled the defendant’s objection to Lovejoy’s testimony and concluded: “The confrontation clause guarantees the defendant only an opportunity for effective cross-examination, not cross-examination that is effective as the defense might wish. . . . Here, the court has sustained the defendant’s objection to the state’s use of misconduct evidence through the witness Lovejoy. That court ruling does not preclude Lovejoy’s testifying that he saw a particular sweatshirt, which is already in evidence in this trial on [the defendant] the day before the crime alleged here. . . .”
The following colloquy took place on the state’s direct examination of Lovejoy:
“Q. And on Sunday, September 11 of 1994, where were you just before the noon hour?
“A. I was going toward my aunt’s house.
“Q. And what street were you on?
“A. At the time I thought it was Crown, but I later found out it was Beacon.
* ** *
“Q. And I’m going to ask you to look around the courtroom; do you see a person that you saw on September 11, 1994, in the courtroom today?
“A. Yes, I do.
“Q. And would you point out the person ....
* * *
“A. He’s seated on that side right there.
“[Assistant State’s Attorney]: Your Honor, I’d ask that the record reflect he has identified the defendant.
* * *
“The Court: It may so reflect.
“Q. And on September 11 of 1994, did you have a chance to observe any of the defendant’s clothing that day?
“A. Yes, I did.
“Q. And what parts of his clothing do you remember?
“A. His shirt.
“Q. Okay. Can you describe his shirt?
“A. It was a Cleveland Browns shirt. It was a brown shirt with orangishred letters.
“Q. And what kind of shirt was it, a button-down or—
“A. No, it was just like a sweatshirt, like a hooded sweatshirt.”
