State v. Badgett

Decision Date08 July 1986
Citation512 A.2d 160,200 Conn. 412
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Earl BADGETT.

Martin Zeldis, Asst. Public Defender, with whom, on brief, was Joette Katz, Public Defender, for appellant (defendant).

Judith Rossi, Deputy Asst. State's Atty., with whom, on brief, were John T. Redway, State's Atty., and James G. Clark, Deputy Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, SANTANIELLO and CALLAHAN, JJ.

SHEA, Associate Justice.

The defendant, Earl Badgett, has appealed from his conviction upon a conditional plea of nolo contendere to a substitute information charging him with illegal possession and transportation of heroin with intent to sell in violation of General Statutes (Rev. to 1981) § 19-480(a). 1 The defendant has raised two claims of error: (1) that the trial court failed properly to ascertain whether his nolo contendere plea was knowingly, voluntarily and intelligently made and (2) that the trial court erroneously denied his motion to suppress evidence seized as a result of the warrantless search of the automobile that he was driving at the time of his arrest. 2 We find no error in the trial court's acceptance of the defendant's plea. Although we conclude that the evidence was illegally seized from the automobile, we remand the case to the trial court for further proceedings to consider whether the evidence would have been inevitably discovered legally.

The state recited the following factual basis for the defendant's plea at the time it was accepted by the trial court: On March 14, 1982, the defendant, driving a blue Cadillac Eldorado, was stopped for speeding while traveling north on Interstate 91 in Middletown by state trooper Peter Naples. After speaking with the defendant and obtaining his operator's license, Naples returned to his police cruiser to prepare the speeding ticket. He was then informed by the police dispatcher that there were outstanding arrest warrants for the defendant. The defendant was arrested pursuant to these warrants and was removed from his vehicle. A search of the vehicle was then conducted which uncovered a black bag containing a number of glassine envelopes holding a white powdery substance.

After laboratory tests established that the white substance in the black bag was heroin, the defendant was arrested on April 15, 1982, on charges of possession of narcotics, in violation of General Statutes (Rev. to 1981) § 19-481(a) and possession of narcotics with intent to sell by a non-drug dependent person, in violation of General Statutes (Rev. to 1981) § 19-480a(a). By a substitute information dated June 22, 1982, the state abandoned the simple possession count and charged the defendant only with possession with intent to sell by a non-drug dependent person. The defendant pleaded not guilty and elected a jury trial.

On April 25, 1982, the defendant filed a motion to suppress the heroin seized during the warrantless search of the vehicle he was driving. On February 17, 1983, after a full evidentiary hearing, the trial court denied the defendant's motion to suppress. On the same date, a second substitute information was filed, charging the defendant with illegal possession of heroin with intent to sell in violation of General Statutes (Rev. to 1981) § 19-480(a), to which the defendant entered a conditional plea of nolo contendere, specifically reserving the right to appeal the court's denial of his motion to suppress. General Statutes § 54-94a; State v. Madera, 198 Conn. 92, 98-99, 503 A.2d 136 (1985). On March 21, 1983, the trial court sentenced the defendant to fifteen years imprisonment.

I

The defendant first claims that his plea of nolo contendere was obtained in violation of due process because the trial court failed to ascertain whether the plea was knowingly, voluntarily and intelligently made. 3 Specifically, the defendant asserts that the plea canvass was inadequate because the trial court did not advise him of his rights in accordance with the strictures of Practice Book §§ 711 4 and 712 5 and also in accordance with federal constitutional principles as enunciated in Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). Neither the Practice Book violations nor the constitutional claims were raised by the defendant by a motion to withdraw his plea before sentence was imposed by the trial court. Practice Book § 720; State v. James, 197 Conn. 358, 360, 497 A.2d 402 (1985); State v. Martin, 197 Conn. 17, 495 A.2d 1028 (1985).

The acceptance of a plea of nolo contendere is governed by federal constitutional standards as well as state rules of practice. " 'Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination ... [s]econd, is the right to trial by jury ... [t]hird, is the right to confront one's accusers.' Boykin v. Alabama, [supra]. Further, under the Connecticut rules of practice, a trial judge must not accept a plea of nolo contendere without first addressing the defendant personally and determining that the plea is voluntarily made under Practice Book § 712 and that the defendant fully understands the items enumerated in Practice Book § 711. State v. Godek, 182 Conn. 353, 357, 438 A.2d 114 (1980), cert denied, 450 U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981); State v. Battle, 170 Conn. 469, 473, 365 A.2d 1100 (1976); State v. Bugbee, 161 Conn. 531, 533, 290 A.2d 332 (1971)." State v. Martin, supra, 22-23, 495 A.2d 1028.

Ordinarily, the defendant's failure to raise a timely claim of error before the trial court renders the claim unreviewable on appeal. Practice Book §§ 854, 3063. "Only in the most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court." State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). We have recognized, however, as an "exceptional circumstance" within this doctrine, certain claims involving colorable deprivations of fundamental constitutional rights. State v. Roma, 199 Conn. 110, 113, 505 A.2d 717 (1986); State v. Evans, supra, 165 Conn. at 70, 327 A.2d 576.

To the extent that the defendant's claim implicates the failure of the trial court to apprise him of the constitutionally mandated requirements for a valid plea, as delineated in Boykin, his claim is properly reviewable despite the absence of a timely motion to withdraw the plea. State v. Amarillo, 198 Conn. 285, 313 n. 16, 503 A.2d 146 (1986). While the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of the three core constitutional rights delineated in Boykin, it does not require that the trial court go beyond these "constitutional minima." United States v. Dayton, 604 F.2d 931, 935 n. 2 (5th Cir.1979) (en banc). A defendant can voluntarily and understandingly waive these rights without literal compliance with the prophylactic safeguards of Practice Book §§ 711 and 712. Therefore, although the Practice Book provisions were designed to reflect the principles embodied in Boykin; State v. Godek, 182 Conn. 353, 357, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981); Blue v. Robinson, 173 Conn. 360, 373, 377 A.2d 1108 (1977); precise compliance with the provisions is not constitutionally required. Thus, our analysis will focus on whether the federal constitutional principles of Boykin were satisfied rather than on meticulous compliance with the provisions of the Practice Book.

Under Boykin, in order for a plea to be knowingly, voluntarily and intelligently made, a trial court is required to advise a defendant that his plea operates as a waiver of three fundamental constitutional rights--jury trial, confrontation and self-incrimination. The defendant in this case does not claim that the trial court neglected to advise him concerning the right to confrontation, as the record expressly indicates that this condition was satisfied. 6 The defendant's principal constitutional claim is that the court did not inform him of his right to a trial by jury. During the plea canvass, the trial court asked the defendant if he understood that "you are giving up your right to trial at this present time?" Although the defendant responded affirmatively to that inquiry, he claims that the trial court's failure to utilize the term "jury trial" prevented him from making a knowing waiver of the right and, therefore, rendered his plea constitutionally defective. While we do not condone the court's failure expressly to reference the right to a "jury" trial, we conclude that the inquiry was constitutionally sufficient under the circumstances of this case.

At the time of his initial plea of not guilty to both the original and the first substituted informations, the defendant must have been advised of his right to a trial by either the court or a jury, because he elected a jury trial. We cannot imagine that the slight differences between the charges in the initial information and the second substituted information could reasonably have led the defendant to presume that his right to a jury trial would be altered. We also find it of no moment that the judge who presided at the time the original not guilty plea was entered did not also accept the defendant's plea of nolo contendere or that the initial plea was entered some ten months before the nolo contendere plea. The defendant's trial by jury was scheduled to begin at the time the defendant elected to withdraw his earlier plea of not guilty. The defendant, through counsel, informed the court that he desired to "withdraw the prior pleas and elections on the files as they stand and ... [enter] a conditional plea of nolo contendere." The court's response to this request, ...

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