State v. Blevins

• Decision Date: 09 February 1988
• Docket Number: No. 5242,5242
• Citation: 536 A.2d 1002,13 Conn.App. 413
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jerry BLEVINS.

Page 1002

536 A.2d 1002

13 Conn.App. 413

STATE of Connecticut v. Jerry BLEVINS.

No. 5242.

Appellate Court of Connecticut.

Argued Dec. 10, 1987.

Decided Feb. 9, 1988.

Eric D. Daniels, Sp. Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Deputy Asst. State's Atty., with whom, on the brief, was John H. Malone, Asst. State's Atty., for appellee (state).

Before DALY, NORCOTT and FOTI, JJ.

FOTI, Judge.

After a jury trial, the defendant was convicted of the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70, and burglary in the second degree in violation of General Statutes § 53a-102. ¹ The defendant claims on appeal that: (1) his constitutional rights were violated by a warrantless search; (2) he was not properly advised of his constitutional rights; (3) the court erred in denying his motion to suppress his identification; (4) the court erred in striking testimony regarding the physical condition of the defendant; (5) the court erred in failing to grant a mistrial; (6) there was insufficient evidence to convict; and (7) there was ineffective assistance of counsel. We find no error.

The jury could reasonably have found the following facts. On July 6, 1980, at about 3 a.m., the victim felt her bed move and opened her eyes to see the figure of a short black man on the bed. He placed a pillow over her head and said: "Shut up, don't move or I'll kill you." He then sexually assaulted her while holding a sharp instrument to her side.

The intruder spoke during the assault, and the victim thought that she recognized his voice as that of the man who lived in the apartment directly above her apartment. The intruder stayed in the victim's apartment for approximately fifteen minutes. Seconds after the intruder had left, the victim saw him run by her bedroom window toward the rear of the building. She then heard someone climb the back stairs of the building and slam the door and run through the kitchen of the upstairs apartment.

At about 4:00 a.m., while at New Britain General Hospital, the victim informed the police that she believed her assailant resided in the apartment directly above her apartment. The police went to that apartment and after knocking on the door heard a man's voice. A woman opened the door and told the police that there were no men residing in the apartment. The officers were admitted to the apartment where they found a man fully clothed in the shower; he was taken into custody after the police learned there were outstanding warrants for his arrest. The defendant subsequently came out of the bedroom and stated that he resided in the apartment. He was asked to accompany the police to the station, which he did.

The defendant, who was not handcuffed, was driven to the police station and asked to sit in the lobby near the door. He was not guarded, and sat alone. Thereafter, he was asked to step into a small room with a one-way mirror along with the man who had been taken into custody in the apartment.

The victim observed both men and identified the defendant as the man who had committed the assault. She asked to hear both suspects' voices to confirm her identification. Both men were removed from her vision and each was asked to repeat the words "shut up, don't move or I'll kill you." The second male spoke first and the victim stated that he was not her assailant. When the defendant spoke the same words, the victim immediately identified his voice as that of the intruder who had sexually assaulted her, and stated that she was 100 percent certain of this identification.

I

The defendant first claims that the trial court erred in denying his motion to suppress the defendant's out-of-court and in-court identifications as fruits of an unreasonable warrantless search in violation of his constitutional rights. We do not agree.

The state has the burden of showing the voluntariness of a claimed consent to the entry or search of a home by police. State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984). The state makes no claim that the entry into the defendant's apartment and the subsequent search was conducted pursuant to a warrant. "Although under the fourth amendment a warrantless entry into a suspect's home in order to make a routine felony arrest is presumptively unreasonable; Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371 [1380], 63 L.Ed.2d 639 (1980); a search which has been undertaken pursuant to consent of an occupant of the premises constitutes a waiver of the warrant requirement. United States v. Matlock, 415 U.S. 164, 169, 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974); State v. Gallagher, 191 Conn. 433, 437, 465 A.2d 323 (1983)." State v. Cobbs, 7 Conn.App. 656, 658, 510 A.2d 213 (1986); State v. Delgado, 13 Conn.App. 139, 147, 535 A.2d 371 (1987). The voluntary character of the consent is a question of fact to be determined from the totality of circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 221, 93 S.Ct. 2041, 2044, 36 L.Ed.2d 854 (1973); State v. Cardona, 6 Conn.App. 124, 134, 504 A.2d 1061 (1986). The trial court's ruling is not to be disturbed unless it is clearly erroneous. State v. Van Der Werff, 8 Conn.App. 330, 341, 513 A.2d 154, cert. denied, 201 Conn. 808, 515 A.2d 380 (1986). The ultimate question "is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice." State v. Cobbs, supra, 7 Conn.App. at 659, 510 A.2d 213.

The trial court found that the officers were voluntarily allowed into the apartment, and that finding is supported by the record. Although the woman who allowed them to enter was not advised that she need not comply with their request, and although knowledge of the right to refuse to consent to entry is an important element in the determination of voluntariness; Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978); such advice is not a prerequisite to voluntary consent. Schneckloth v. Bustamonte, supra. It is uniquely the function of the trier of facts to weigh the evidence and assess the credibility of witnesses. State v. Coriano, 12 Conn.App. 196, 203, 530 A.2d 197 (1987). We cannot conclude that the trial court's findings are clearly erroneous.

We note that even if the initial detention of the defendant had been illegal the subsequent identification of him was free from any taint of illegality under the circumstances present here. See United States v. Crews, 445 U.S. 463, 469, 100 S.Ct. 1244, 1248, 63 L.Ed. 2d 537 (1980); State v. Bruno, 1 Conn.App. 384, 387, 473 A.2d 311 (1984), aff'd, 197 Conn. 326, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S.Ct. 1635, 90 L.Ed.2d 181 (1986).

II

The defendant next claims that he was under an implied arrest and therefore should have been given his Miranda warnings. He asserts that his constitutional right to have counsel present attaches during a voice identification. We do not agree.

It is clear that identification procedures such as lineups and the taking of fingerprints and blood or voice samples do not violate fifth amendment rights. United States v. Wade, 388 U.S. 218, 221, 87 S.Ct. 1926, 1929, 18 L.Ed.2d 1149 (1967); Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966). The privilege against self-incrimination protected by the fifth amendment to the United States constitution cannot be invoked in a situation where a suspect is merely required to provide evidence of physical characteristics. The right to the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), had, therefore, not yet attached. Kirby v. Illinois, 406 U.S. 682, 687-88, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411 (1972). ²

III

The defendant next claims that the identification of his voice and his subsequent identification...