State v. Biller

Decision Date17 December 1985
Docket NumberNo. 2073,2073
PartiesSTATE of Connecticut v. Meyer BILLER.
CourtConnecticut Court of Appeals

M. Mitchell Morse, New Haven, for appellant (defendant).

Christopher Malany, Sp. Deputy Asst. State's Atty., with whom, on the brief, were John Waddock and Carl Schuman, Asst. State's Attys., for appellee (state).

Before SPALLONE, DALY and BIELUCH, JJ.

BIELUCH, Judge.

This appeal arises out of the defendant's conviction, after a jury trial, on a charge of interfering with an officer in violation of General Statutes § 53a-167a. The defendant has raised eight claims of error with regard to his conviction. We find no error.

The jury could reasonably have found the following facts. On March 12, 1981, a fire took place at a house owned by Wilken Shaw located at 79 Hallock Street in New Haven. At the scene of the fire, Joseph Toscano, an arson control assistant inspector assigned to the office of the New Haven State's Attorney, saw the defendant approach Shaw and his daughter-in-law, Willa Shaw. Toscano watched as the defendant spoke to the Shaws and provided them with some documents which Wilken Shaw signed. Toscano then approached the defendant and the Shaws with another officer, Joseph Howard. As the officers approached the trio, they heard the defendant state to the Shaws that he would contact the insurance companies.

Toscano identified himself to the defendant who responded by acknowledging that he knew Toscano's identity. Toscano then asked the defendant if he was licensed to act as a public adjuster in this state. Toscano also, at that time, saw the documents which Shaw had signed. He believed that one of those documents was a retainer for the services of a public adjuster. Because he knew that the defendant no longer was licensed as a public adjuster, Toscano ordered the defendant's arrest for violating General Statutes § 38-71, which prohibits acting as a public adjuster without a license.

At some time during these events, 1 the defendant tore up certain documents which Shaw had signed and placed the pieces in his pocket. After the arrest, Howard handcuffed the defendant. When the officers attempted to search his pockets, however, the defendant resisted this effort and struggled to prevent them from doing so. The officers then led the defendant to a police car. There, the police succeeded in entering the defendant's pockets and retrieving the remnants of the torn documents.

The defendant was charged with violation of General Statutes § 38-71, acting as a public adjuster without a license, and of General Statutes § 53a-182, disorderly conduct. By substitute information, the second count was changed to interfering with a police officer in violation of General Statutes § 53a-167a. 2 The defendant pleaded not guilty to both counts of the substituted information and, after a trial, the jury was unable to agree on a verdict on the first count and a mistrial was declared as to that count. The jury, however, found the defendant guilty on the second count.

I

The defendant's first three claims of error are: (1) that the court erred in denying his motion to dismiss the substituted information against him based upon his claim that his original arrest had been illegal; (2) that the court improperly restricted the evidentiary hearing on the motion to dismiss so as to prevent the defendant from presenting evidence which would have demonstrated that the police originally lacked probable cause to arrest him; and (3) that because they were acting illegally, the police were not in the performance of their duties as required by General Statutes § 53a-167a. We find these claims to be without merit.

At the outset, we note that the defendant does not appeal from the mistrial declared on the first count of the information lodged against him. Only the charge upon which he was convicted and sentenced is at issue here. Since we conclude that the illegality of the defendant's initial arrest is not, per se, a defense to the charge of interfering with an officer, these claims of error must fail.

In State v. Privitera, 1 Conn.App. 709, 476 A.2d 605 (1984), this court held that "the legality of the police officer's conduct is not an element of the crime defined by General Statutes § 53a-167a(a), and that, in a prosecution under that statute, to the extent that the state's case is based on the conduct of a police officer in making an arrest, by virtue of General Statutes § 53a-23 the illegality of that arrest is not a defense [to that charge]." Id., 719, 476 A.2d 605. But even more so here, the defendant's conviction pursuant to the same statute as in Privitera bears no fundamental relationship to the legality of his initial arrest. Rather, it is his conduct after arrest which supported this charge and is at issue.

Our holding by no means renders any and all police misconduct irrelevant. A violation of General Statutes § 53a-167a only occurs when interference with the officer is "in the performance of his duties." "If [the officer] is acting under a good faith belief that he is carrying out that duty, and if his actions are reasonably designed to that end, he is acting in the performance of his duties." State v. Privitera, supra, 722, 476 A.2d 605. Thus, the question is not whether there was probable cause for the defendant's original arrest, or whether that arrest was otherwise illegal. The test is whether the officer is acting in good faith within the scope of his duties as an officer or is pursuing a personal intent or frolic of his own. Id. Thus, in the present case, the lack of probable cause to arrest the defendant on the original charges was irrelevant to the court's jurisdiction over his prosecution for violation of § 53a-167a, and his motion to dismiss this charge was properly denied. Similarly, the court's failure, at the hearing on the motion to dismiss the information, to admit further evidence on the issue of the officers' probable cause to arrest the defendant cannot be found to be improper, since such evidence was irrelevant to the court's jurisdiction over the charge now on appeal.

II

The defendant next claims that his actions in preventing the police from searching his pockets immediately after his arrest did not amount to a material interference with the performance of the duties of those officers. We disagree.

The defendant's argument is, essentially, that by his actions, he merely delayed the officers' search of his pockets until he was away from the public spotlight at the scene of the fire. That, he argues, does not constitute interference with the performance of the officers' duties, but merely with the timing thereof. We see no meaningful distinction in this case. The defendant's argument seems to be that unless he successfully prevented the police from obtaining the torn documents from his pockets, he merely attempted to interfere with the police, at best. General Statutes § 53a-167a, however, defines "interfering" to include obstruction, resistance, hindrance or endangerment. To "obstruct" is defined as "to be or come in the way of: hinder from passing, action, or operation." To "resist" is defined as "to withstand the force or the effect of: be able to repel or ward off." To "hinder" is defined as "to make slow or difficult the course or progress of." "Endangerment" is defined as "the act of placing in danger or the state of being placed in danger." Webster, Third New International Dictionary. At the very least, the delay caused to the officers in this case was sufficient to raise a jury question regarding whether there had been an interference in violation of General Statutes § 53a-167a.

III

The defendant next claims that the court erred in its charge to the jury. He claims that the court erred in four respects in charging the jury on the elements of General Statutes § 53a-167a and in referring to General Statutes § 53a-23, which abrogates the common law right to resist an illegal arrest. We have carefully reviewed the defendant's exceptions to the charge and we conclude that they are without merit. "In considering a charge, critical dissection is not required. The charge as a whole must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict." State v. Taxiltaridis, 2 Conn.App. 617, 620, 481 A.2d 98 (1984). The test must be whether "the court's instructions, taken as a whole, fairly and adequately presented the case in such a way that injustice was not done to either party under the established rules of law." Id. We conclude that the defendant's claims are based on a narrow reading of brief excerpts from the charge which are taken out of context and do not do justice to the parties. In this manner, the defendant incorrectly characterizes as error the court's proper and complete guidance of the jury to its verdict.

IV

The defendant next claims that the court erred in permitting the prosecutor to argue, in his closing remarks to the jury, facts which were not in evidence. This claim is made despite the defendant's failure to object to those remarks at trial 3 and despite his own prior statement to the jury which was to the same effect as that to which he now objects. The factual argument which the defendant raises by this issue was the prosecutor's comment that the defendant "tore up the documents when the police officers wanted them. " (Emphasis added.) This statement was made by the prosecutor in paraphrase of a written statement in evidence which Wilken Shaw had given to a private investigator for the defendant. That written statement was that "the men wanted the form he had, but, he tore it up rather than give it to them." We conclude that the prosecutor's comment was an accurate and unobjectionable paraphrasing of the original written statement given by Wilken Shaw to the defendant's investigator. His rephrasing of the evidence was proper summation or argument to the...

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  • Biller v. Lopes
    • United States
    • U.S. District Court — District of Connecticut
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    ...the police succeeded in entering the defendant's pockets and retrieving the remnants of the torn documents. State v. Biller, 5 Conn.App. 616, 618-19, 501 A.2d 1218 (1985) (hereinafter referred to as "Biller The defendant was charged with acting as a public adjuster without a license in viol......
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