83 Conn. App. 377 | Conn. App. Ct. | 2004
Opinion
The defendant, Robert Ward, appeals from the judgment of conviction, rendered after a jury trial, of
On appeal, the defendant claims that (1) the court improperly denied his motion to suppress evidence obtained as a result of an illegal Terry stop,
The jury reasonably could have found the following facts. The owner of an apartment building gave the Bridgeport police keys to the premises so that, as a part of their regular neighborhood police duties, they could patrol the hallways because of a number of break-ins, narcotics sales and rampant prostitution on the premises. After a walk-through of the building on December 26, 2000, Officer Adam Roscoe and Officer Martin Heaneu stationed themselves inside of the Washington Avenue entrance to the building.
A third officer, Jesse Pizarro, arrived as backup, enabling Heaneu to go upstairs to knock on the door of the apartment the defendant named as the one he was visiting. No one answered the door when Heaneu knocked. While Heaneu was upstairs, Roscoe obtained identification from the defendant and checked to see if he had any outstanding warrants. During this time, the defendant put his hands in his pockets. Roscoe, apparently for his own safety, asked him to keep his hands in sight, and when the defendant complied by removing his hands, a straw became visible, sticking out of his pocket. When asked what the straw was for, the defendant stated that he used it to snort heroin. When he was asked if he had any drugs on him, the defendant disobeyed the officer’s orders to keep his hands in sight, reached into his pocket and made a motion toward Roscoe’s head. The two officers attempted to grab the defendant, but he managed to slip out of his jacket and flee the scene. The officers
In the meantime, Heaneu returned downstairs to find that Roscoe, Pizarro and the defendant were gone, but that the defendant’s jacket had been left on the floor. Roscoe returned to the building and met Heaneu in the hallway. They brought the jacket outside and set it on the ground. On impact with the ground, a loaded gun hidden in the lining of the defendant’s jacket discharged and shot off a part of Heaneu’s finger. The defendant now appeals after being tried, convicted and sentenced. Further facts will be provided where pertinent.
I
The defendant first claims that the court improperly denied his motion to suppress because the police illegally detained him in an alleged investigative or Terry stop, and therefore, all evidence obtained as a result of that stop should have been suppressed. We disagree.
Our review standard for allegedly unlawful Terry stops is settled. “When considering the validity of a Terry stop, our threshold inquiry is twofold. . . . First, we must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure. . . . Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred. . . .
“We must first determine, therefore, at what point, if at all, a seizure occurred. [Our Supreme Court has] . . . defined a person as seized under our state constitution when by means of physical force or a show of authority, his freedom of movement is restrained. ... In determining the threshold question of whether there
If a seizure has occurred, we then turn to an analysis of “whether the trial court properly concluded that the seizure was based on a reasonable and articulable suspicion of criminal activity. The determination of whether a reasonable and articulable suspicion exists rests on a two part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct.” (Internal quotation marks omitted.) Id., 504-505.
“Under the fourth amendment to the United States constitution and article first, [§ 7] ... of our state constitution, a police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest.” (Internal quotation marks omitted.) State v. Gaston, 82 Conn. App. 161, 165, 842 A.2d 1171 (2004); see also Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
“[I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. . . . Terry v. Ohio, supra, 392 U.S. 21 .... In
In denying the defendant’s motion to suppress, the court made the following statements and noted the following facts, only some of which are challenged by the defendant. We analyze the findings made and the defendant’s claims as they arise.
The court stated: “The landlord testified that the apartment house that was his was a place where there’s a tremendous amount of drug activity going on.” The defendant does not claim this was an erroneous finding, but argues that “the assertion of generalized drug activity in the area was of no moment.” We disagree. The defendant is correct that his mere presence in a building in a high crime neighborhood, in itself, would be insufficient to uphold a reasonable and articulable suspicion and would be considered “profiling”; see State v. Donahue, 251 Conn. 636, 648, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000); State v. Oquendo, 223 Conn. 635, 655, 613 A.2d 1300 (1992); see also Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979); however, the fact that it was probable that drug dealers and others were using this particular entrance to trespass on the property was just one factor that the officers took into consideration when analyzing the defendant’s purpose on the property. Although presence in a high crime area alone cannot constitute a reasonable suspicion, an officer is not required to ignore the circumstances and area around the observed suspect. See United States v. Moore, 235 F.3d 700, 704 (1st Cir. 2000); see
The court also noted that the landlord “testified further that he had contacted the police hundreds of times, as often as . . . multiple times per day. The problem he indicated was so bad that he gave the police keys to get them in and ... by the officers’ testimony, they would be there often, almost daily, and they had made numerous arrests. One of the officers testified that there was drug consumption on all of the floors. All the tenants had the key they could use on any of the doors. The same key worked on any of the four doors.” The defendant does not challenge these findings, or the court’s findings that “[t]he defendant came in the side door on Washington Avenue by banging it several times trying to enter . . . which he eventually opened. A tenant would not need to do that. He or she would have a key. There were signs. Testimony indicat[ed] that there were signs indicating there was no trespassing, no loitering and so on.”
We next review the defendant’s claim that the court’s finding as to the mode of entry for visitors was clearly erroneous. The court found that “[a]ll visitors got buzzed in through the intercom at the main entrance at 25 Sanford [Place].” The defendant argues that “[t]o the exdent this meant that anyone not entering through the Sanford Place door was not a visitor, it is erroneous.” We are not persuaded. The court was free to
“[W]here [a defendant] trespasses in a building or on premises manifestly meant to exclude outsiders, the owner’s interest in the privacy of his own property justifies criminal penalties.” Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-109 (West 2001), commission comment, p. 212. The rationale underlying the crime of criminal trespass is “to protect one’s property from unwanted intruders.” Id., § 53a-110, commission comment. Although the defendant is correct that the posting of “No Trespassing” signs outside the Washington Avenue entrance did not specifically deny entrance to visitors or other legitimate licensees, the facts that a key was needed to open the door without force and that the door did not contain a buzzer entry system did deny visitor’s entrance. Additionally, tenants had keys to all four of the building doors. The defendant forcibly entered a building in which many drug arrests had been made, and which is located in a neighborhood known for its drug activity. The landlord had identified the building as having a high number of trespassers entering through this specific entrance. It was a reasonable inference that the defendant did not have a key and probably was not a visitor or a resident because he had to yank on the door multiple times to open it.
The defendant next challenges the court’s finding “based on the evidence and the reasonable inferences that can be drawn from that evidence, that the police stopped the defendant on a reasonable and articulable
The Terry stop did not occur immediately after the defendant entered the hallway. “Courts have made clear that police officers do not bring about a ‘seizure’ merely by asking questions of a citizen, even when the officer identifies himself as a police officer.” (Internal quotation marks omitted.) State v. Kidd, 59 Conn. App. 598, 602, 757 A.2d 1168 (2000), cert. denied, 255 Conn. 932, 767 A.2d 106 (2001). The officers merely questioned the defendant when he first opened the door. At that point, a seizure had not occurred. Our Supreme Court has determined that a seizure occurs when a reasonable person would believe that the defendant was not free to leave because his freedom of movement was restrained by means of physical force or a show of authority. State v. Santos, supra, 267 Conn. 503-504. The defendant was free to leave until the moment that the officers questioned the defendant and learned that he was not a tenant and could not or would not name the person he claimed to be visiting. It was at this time that a Terry stop occurred. The officers then obtained identification from the defendant to check for any outstanding warrants, had an officer arrive as backup and sent another officer upstairs to investigate the defendant’s story about his purpose in the building.
At the time the Terry stop occurred, the police had a reasonable and articulable suspicion that the defendant was committing criminal trespass. We first examine the elements of that statute. Section 53a-109 (a) provides
The officers knew before the defendant entered the building that the premises were posted in a manner prescribed by law or reasonably likely to come to the attention of intruders. The Washington Avenue entrance was clear ly marked with a “No Trespassing” sign. In addition, a key was needed to open the door without force, and the entrance lacked a buzzer entry system such as the one at the Sanford Place entrance. These facts support a reasonable inference that the door to the Washington Avenue entrance was not an authorized entrance for visitors.
The defendant does not contest that he entered the building. The officers observed the defendant’s entrance. The defendant forcibly had to yank on the door multiple times before he gained access. Once he entered the building, the defendant could have turned around and walked out. Instead, the defendant stayed and answered the officers’ questions.
The Terry stop was not conducted solely on the basis of the defendant’s entry through the posted door. Other
“The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” (Internal quotation marks omitted.) State v. Carcare, 75 Conn. App. 756, 768, 818 A.2d 53 (2003).
The officers already had called for backup. They asked the defendant for identification and sent an officer to the apartment, the number of which the defendant supplied, to see if his story checked out. “One function of a constitutionally permissible Terry stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. A police officer who has proper grounds for stopping a suspect has constitutional permission to immobilize the suspect briefly in order to check a description or an
In addition to his argument regarding the initial stop, the defendant contends that the stop was illegal because the defendant was detained for too long of a time. “In assessing whether a detention is too long in duration to be justified as investigative, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was only to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” (Internal quotation marks omitted.) State v. Bowden, 15 Conn. App. 539, 546, 545 A.2d 591, cert. denied, 209 Conn. 810, 548 A.2d 438 (1988). We find nothing in this record to persuade us that the duration of this stop was illegal. The defendant’s method of gaming entrance to the building and his refusal to state the name of the person whom he was visiting made the officers suspicious that the defendant was trespassing. The defendant’s detention was further prolonged by his conduct in exposing a straw he admitted was used for heroin snorting, his movement that the police objectively could have regarded as menacing to them and finally, his running when the officers attempted physically to restrain him, leaving behind the jacket with the concealed loaded gun, which subsequently fired and maimed one of the officers.
Upon the defendant’s forcible entrance into the building through a locked door, the police had reason to ask
II
The defendant next claims that the court improperly precluded him from testifying about the statements the police made during the Terry stop because the statements were essential to his defense that the police officers had a motive and a plan to accuse him falsely of possessing the pistol. The defendant also contends that the statements were admissible as inconsistent statements.
There are three statements that the court precluded the defendant during direct examination from attributing to the police officers. The defendant wanted to testify (1) that Roscoe said, “look what we have here,” (2) that Heaneu stated, “look at this piece of shit garbage” when referring to the pistol, and (3) that Roscoe asked the defendant, “you like to carry guns, don’t you?” As to the latter two statements, after the state’s hearsay objection was sustained, the defendant did not take exception to the ruling. When the defendant was asked if he wanted to make an objection on the record, defendant’s counsel stated that he would not claim an objection. “A party is not entitled to have a claim reviewed on appeal on grounds different from those presented at trial. ... To hold otherwise would result in trial
The first statement at issue allegedly made by the police was, “look what we have here.” We agree with the state that the defendant did not properly preserve his objection to this statement on the ground he now urges on appeal, namely, that the statement was evidence of motive or bias. Therefore, we will not review this portion of the defendant’s claim. We also are unpersuaded by the argument that the statement was admissible as an inconsistent statement because we conclude that the defendant did not lay the proper foundation to introduce the hearsay. Even if we were to determine that the three statements were excluded improperly, the defendant was not harmed because he was not precluded from confronting the declarants with their alleged statements and was able to introduce his defense through other evidence.
The state objected to the statement, “look what we have here,” as inadmissible hearsay. “An out-of-court statement offered to establish the truth of the matter asserted is hearsay. ... As a general rule, such hearsay statements are inadmissible unless they fall within a recognized exception to the hearsay rule.” (Citation omitted.) State v. Merriam, 264 Conn. 617, 633, 835 A.2d 895 (2003). The defendant’s counsel made a shifting argument regarding the propriety of the statement’s admission into evidence. Although the defendant argued that the statement was not hearsay, he also
The defendant did preserve his objection that this statement was an inconsistent statement made by a declarant. We agree with the state that a proper foundation was not laid and the court properly sustained the state’s objection. “We review evidentiary claims pursuant to an abuse of discretion standard. Generally, [t]rial courts have wide discretion with regard to evidentiary issues and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. . . . Every reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion.” (Internal quotation marks omitted.) Stanley v. Lincoln, 75 Conn. App. 781, 785, 818 A.2d 783 (2003).
Section 6-10 (c) of the Connecticut Code of Evidence provides in relevant part: “If a prior inconsistent statement made by a witness is shown to or if the contents of the statement are disclosed to the witness at the time the witness testifies, and if the witness admits to
However, “[u]sually, the foundation for introducing a prior inconsistent statement is laid by asking the witness on cross-examination whether he made the statement and alerting him to the time and place at which it was made. . . . Where the witness denies having made the statement or is unable to recall having done so, extrinsic evidence may be admitted to show it was made.” (Citations omitted.) Id.; see also C. Tait, Connecticut Evidence (3d Ed. 2001) § 6.35.5, p. 486.
The defendant contends that the statement, “look what we have here,” would “show that Officer Roscoe knew the defendant from prior occasions.” In order for this to have been an inconsistent statement, Roscoe would have had to have stated that he had not pre
Even if we were to determine that these three challenged statements should have been allowed, their preclusion was harmless error under the circumstances of this case. The defendant was not denied his right to present a defense or to confront witnesses. The court did not preclude the introduction of Roscoe’s statement. It did require that as a witness he be confronted with his statements before the defendant was allowed to testify to them. In addition, the defendant testified about his theory that he was set up by the police. He told the jury that Roscoe knew him, that he was searched immediately upon entry into the building, that he believed the police planted the gun on him and that he never had a straw in his pocket. His defense was placed
III
The defendant also claims that his conviction of carrying a pistol without a permit pursuant to § 29-35 (a) and criminal possession of a firearm pursuant to § 53a-217 (a) (1) constitutes multiple convictions for the same act and thus violates his federal and state constitutional right to be free from double jeopardy. See U.S. Const., amends. X, XTV; Conn. Const., art. I, § 8. The defendant notes that this court previously has decided that conviction of these offenses does not violate the proscription against double jeopardy and asks this court to reconsider the matter because those decisions were decided wrongly. See State v. Laws, 37 Conn. App. 276, 290, 295, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995); State v. Ortiz, 15 Conn. App. 749, 751, 546 A.2d 338, cert. denied, 209 Conn. 820, 551 A.2d 757 (1988); State v. King, 15 Conn. App. 330, 332, 544 A.2d 261 (1988). We are constrained by these precedents and decline to overturn them. Therefore, we conclude that the defendant’s right to be free from double jeopardy was not violated.
IV
The defendant’s last claim is that the evidence was insufficient to sustain his conviction of criminal trespass in the third degree in violation of § 53a-109 (a) (1). The state had to prove beyond a reasonable doubt that the defendant (1) entered or remained in the premises that were posted in a manner prescribed by law or reasonably likely to come to the attention of intruders and (2) knew he was not licensed or privileged to so
“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .
“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged [offense], each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . [I]n determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. . . . [A]n inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference.” (Citation omitted; internal quotation marks omitted.) State v. Moore, 82 Conn. App. 267, 270, 843 A.2d 652, cert. denied, 269 Conn. 904, 852 A.2d 734 (2004).
From the evidence presented at trial, read in the light most favorable to sustaining the verdict, the jury reasonably could have found that the entranceway was properly posted and that the defendant entered and remained in the premises knowing that he did not have a right to be in the building. The defendant does not
In addition, a jury reasonably could have found that the premises were posted in a manner prescribed by law or reasonably likely to come to the attention of
The judgment is affirmed.
In this opinion the other judges concurred.
See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Prior to entering the premises, the officers called Officer Jesse Pizarro, who was familiar with the building, to assist them in the walk-through.
At trial, the defendant changed the version of the story that he had told the police and testified that the Sanford Place entrance’s buzzer system was not working and that he was really at the building to visit a girl named Tasha. He also stated that the police set him up, that he was searched immediately upon his entry into the building and that he never had the gun or the straw on his person that the police claimed to have found.
Because we have concluded that the defendant was not deprived of his right to present a defense or to confront witnesses, the defendant’s claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), must also fail. Therefore, an analysis of this claim is not warranted.
The defendant also argues that the statement would give meaning and significance to the actions being taken by the police, illustrate the officer’s state of mind and show the effect on the hearer. These reasons do not further his argument that this statement is an inconsistent statement made by Roscoe, and they need not be addressed by this court.
The defendant testified that the buzzer system was not functioning. Without evidence that this was true, the jury was under no obligation to believe the testimony of the defendant. See State v. Robinson, 81 Conn. App. 26, 33, 838 A.2d 243, cert. denied, 268 Conn. 921, 846 A.2d 882 (2004).
The defendant chose not to present the affirmative defense embodied in General Statutes § 53a-110. This statute relieves a defendant of criminal liability if he believes that he is authorized or can prove that an authorized person would have given him permission to enter or remain at the premises. See General Statutes § 53a-110. “[The statute’s] purpose is to relieve from criminal liability one who is, in a sense, an innocent intruder.” Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-110 (West 2001), commission comment, p. 213.
