State v. Bonner, No. 28538.

• Decision Date: 30 September 2008
• Docket Number: No. 28538.
• Citation: 955 A.2d 625,110 Conn.App. 621
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Rhondell BONNER.

955 A.2d 625

110 Conn.App. 621

STATE of Connecticut v. Rhondell BONNER.

No. 28538.

Appellate Court of Connecticut.

Argued May 21, 2008.

Decided September 30, 2008.

Christopher Y. Duby, special public defender, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robin D. Krawczyk, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, HARPER and WEST, Js.

HARPER, J.

The defendant, Rhondell Bonner, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 21a-279(a) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279(d).¹ The defendant claims that the trial court improperly (1) failed to hold an evidentiary hearing related to his motion to suppress evidence, (2) denied his motion to suppress evidence and (3) denied his motion for a judgment of acquittal.² We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In the early afternoon of January 7, 2003, Andrew Jacobson, a Hartford police officer, was on patrol duty in his police cruiser. A police dispatcher provided information to Jacobson via his police radio that the defendant, who was wanted for questioning, was a passenger in a red Ford Probe, bearing out-of-state license plates, which was being operated on Albany Avenue. Soon thereafter, Jacobson observed an automobile matching this description enter the driveway of a gasoline station and stop alongside a gasoline pump. The station was located on Albany Avenue, within 1500 feet of a middle school at which the defendant was not enrolled as a student.

Jacobson drove his cruiser into the driveway of the station and observed a person, whom he suspected was the defendant, in the front passenger seat of the automobile. Jacobson parked his cruiser, and as he exited the cruiser, the defendant extended his hands from the automobile and stated, "I'm Rhondell." The defendant complied with Jacobson's request to exit the automobile. Jacobson placed handcuffs on the defendant and conducted a patdown search of the defendant that yielded a cellular telephone, $126.25 and several small pieces of paper that bore the word "Cream," which is a nickname used by the defendant, as well as a telephone number.

After additional officers arrived and the driver, as well as two other passengers, had exited the automobile, Jacobson searched the automobile. On the floor of the automobile in the vicinity of the front passenger seat, Jacobson discovered and seized a clear plastic bag containing a white, rock like substance similar in appearance to crack cocaine.³ The defendant was transported to the Hartford police department, where he was interviewed by police detectives. Prior to being interviewed, the defendant, complying with a request to give the police any items on his person, removed from his rear waistband a small plastic bag that contained a white, rock like substance. Subsequent testing revealed that one of the bags seized by the police contained a substance that included 1.31 grams of cocaine and that the other bag contained 1.23 grams of nicotinamide, a vitamin that is sometimes used as a "cutting agent" in the cocaine trade. During the course of a police interview, the defendant stated that he had been "picked up with some cocaine earlier in the day" and that he had sold cocaine in the vicinity of Albany Avenue just days earlier. Additional facts will be set forth as necessary.

I

First, the defendant claims that the court violated his right to due process, under the federal and state constitutions, when it declined to hold an evidentiary hearing related to his motion to suppress evidence. We disagree.

On July 5, 2006, the defendant filed a motion to suppress evidence that he alleged was obtained illegally by the police following his arrest on January 7, 2003. The motion stated: "The evidence in this case was obtained as a result of a warrantless arrest of the [d]efendant, and the subsequent warrantless search of his person and the automobile which he was allegedly operating. The arrest and subsequent search were done without probable cause to believe that the [d]efendant had committed any crime."

On November 15, 2006, during jury selection, the defendant's attorney reminded the court that he had filed a motion to suppress the drugs seized by police from the automobile and the defendant. The defendant's attorney requested a hearing related to that motion. The defendant's attorney also informed the court that in a separate proceeding in which the defendant stood trial for murder, the defendant's attorney had filed a motion to suppress statements made by the defendant to the police following his arrest on January 7, 2003, and that the court in that proceeding, Espinosa, J., had denied the motion to suppress. The court noted that because of the denial of the motion to suppress in the earlier proceeding, the defendant's motion could present an issue of collateral estoppel. The court stated that it would consider the issue after reviewing the file from the earlier proceeding, including Judge Espinosa's ruling.

The following day, November 16, 2006, the court informed the parties that it had reviewed Judge Espinosa's decision and that it appeared that Judge Espinosa had made factual findings on which she determined that the defendant's arrest on January 7, 2003, was lawful. The defendant's attorney disagreed that the earlier ruling had any preclusive effect on the present motion to suppress. He argued that the issue before Judge Espinosa was whether the defendant's statement to police following his arrest should be suppressed because the statement was the result of improper police coercion and that in the present case, the motion to suppress focused on the legality of the defendant's arrest. The defendant's attorney argued that to the extent that Judge Espinosa made any determinations concerning the legality of the arrest, they were unnecessary to a resolution of the issue before the court. The court disagreed with this characterization of Judge Espinosa's ruling, noting that the defendant's trial attorney in the earlier proceeding had, in fact, argued that the arrest was illegal. The court stated that on the following day, it would permit the defendant to present evidence "to make a record to show that Judge Espinosa's findings were not necessarily decided."

On November 17, 2006, the court revisited the issue. The defendant's attorney claimed that the defendant's arrest was illegal because it occurred without probable cause. The defendant's attorney argued that the discovery of drugs in the passenger area of the automobile did not give rise to probable cause to suspect that the defendant possessed the drugs. He argued: "There were a number of people in the car. The officer had ... not kept an eye on the people in the car while he was taking [the defendant] out of the car." The defendant's attorney argued that for these reasons, the drugs and "everything that follows" should be suppressed as the fruit of police illegality.

The court read aloud from Judge Espinosa's ruling, reciting factual findings that related directly to the circumstances of the defendant's arrest at the gasoline station on January 7, 2003. The court noted that on the basis of these detailed findings, Judge Espinosa concluded that "the cocaine that was found in the foot area of the car where the defendant was seated was in plain view [of the police], and there was probable cause to arrest him. Consequently, the search of the defendant's person at the scene and at the police station were justified as incident to his arrest."

The court stated: "[I]t's clear to me that Judge Espinosa has found the very things which you're arguing. [W]hat today was for, as I understood it, was to give you a chance to show me why the findings as to the legality of the arrest were not necessarily decided, were not necessarily included in what Judge Espinosa had to decide. I think we're all in agreement that if a decision about the legality of [the defendant's] arrest has been made by Judge Espinosa in another trial of [the defendant], then you're estopped from raising it at this trial because it's already decided."

The defendant's attorney stated that another hearing concerning the legality of the arrest was warranted because Judge Espinosa's findings were not binding on the court. The defendant's attorney argued that the drugs at issue in the present case were not evidence in the murder trial. He argued that the subject of the earlier motion to suppress, before Judge Espinosa, was the defendant's statement to the police. He argued that it was not necessary for Judge Espinosa to determine whether the defendant's arrest was lawful because the motion to suppress "could very well" have been denied on a finding that the defendant's statement to the police was knowing and voluntary.

The court ruled as follows: "I have gone through the transcripts, and it's clear to me what occurred at [the defendant's] previous hearing on the motion to suppress his statement in his previous trial.... [A]n issue is actually litigated if it is properly raised in the pleadings or otherwise submitted for determination and, in fact, determined.... [T]he issue of the legality of the arrest was raised by the defense in the murder trial of [the defendant]. It was actually litigated, it was submitted for determination and, in fact, determined by Judge Espinosa. For that reason, the doctrine of collateral estoppel does apply or perhaps even res judicata. But ... whether it's issue preclusion or claim preclusion the defense is not entitled to a hearing on that very same factual issue. And so the request for a hearing on the motion to suppress is denied. The ...