State v. Brocuglio

• Decision Date: 03 July 2001
• Docket Number: (AC 18520)
• Citation: 64 Conn. App. 93,779 A.2d 793
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. ANTHONY J. BROCUGLIO

64 Conn. App. 93

779 A.2d 793

STATE OF CONNECTICUT v. ANTHONY J. BROCUGLIO

(AC 18520)

Appellate Court of Connecticut.

Argued December 7, 2000.

Officially released July 3, 2001.

Pellegrino, Dranginis and Hennessy, Js. Jon L. Schoenhorn, special public defender, for the appellant (defendant).

Mitchell S. Brody, assistant state's attorney, with whom were Adam B. Scott, assistant state's attorney, and, on the brief, James E. Thomas, state's attorney, for the appellee (state).

Opinion

DRANGINIS, J.

The defendant, Anthony J. Brocuglio, appeals from the judgment of conviction, rendered after a jury trial, of two counts of interfering with an officer in violation of General Statutes § 53a-167a (a).¹ On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress certain evidence obtained as a result of a warrantless search and seizure, (2) violated his right to confront and to cross-examine a witness by restricting impeachment of the witness, (3) restricted the admission of evidence concerning the propensity of a police officer and his dog for violence, thereby undermining the defendant's right to present a defense, (4) failed to instruct the jury that it must unanimously agree on the factual basis for the offense before voting to convict the defendant, (5) refused to instruct the jury (a) on the right to resist an illegal entry into the curtilage of one's home and (b) that the officers' warrantless entry was unlawful, and (6) imposed vague and overbroad conditions of probation that were unrelated to the offense for which he was convicted and failed to apprise the defendant of the conduct he must avoid. We reverse the judgment of the trial court and order a new trial because we agree with the defendant's first claim, which is that the court improperly denied his motion to suppress evidence obtained from a warrantless search and seizure.²

The jury reasonably could have found the following relevant facts. On September 27, 1996, two officers of the East Hartford police department went to the defendant's house at 59 Church Street, at the request of the East Hartford mayor's office, to ticket abandoned and unregistered vehicles.³ While they were issuing citations, the officers went to areas contiguous to the defendant's residence. The areas consisted of the rear yard, which was protected by a fence, and an unprotected area near the front of the defendant's residence. The ticketing was done pursuant to East Hartford's Code of Ordinances, § 21-1 et seq.⁴ The officers had no search warrant, either administrative or otherwise.

The officers first began to ticket vehicles located in the driveway of the defendant's front yard. While the police were in the front of the house, the defendant's wife came outside and ordered the officers off her property. The officers responded that they had been sent by the town and were acting pursuant to one of its ordinances. The defendant's wife went back inside to call the officers' watch commander, and the defendant came outside. The defendant also ordered the officers off the property. The officers repeated that they were sent by the town and instructed the defendant to call the watch commander.

In response to the officers' comments, the defendant cursed about the mayor and threatened to bring his dog outside if the officers did not leave. The defendant also claimed that his dog would eat one of the police dogs present at the scene. One officer responded that he would shoot the defendant's dog if he let it come outside. The defendant went inside and returned to the front of the house holding his dog by the collar. One of the officers drew his gun, upon seeing the dog, and ordered the defendant to keep his dog away. The defendant and his dog went back inside the house.

The officers finished ticketing the vehicles in the front of the house and proceeded to the backyard of 59 Church Street to continue ticketing. To get to the backyard and driveway of the house, the officers had to bypass a six foot tall stockade fence that displayed "no trespassing" and "keep out" signs. That fence ran on both sides of the defendant's house. It blocked the back driveway and yard from sight from the street in front of the house. The officers entered through the portion of the fence that extended from the side of the house across the driveway to another home.

The officers then began ticketing vehicles in the backyard. The defendant and his dog again came outside, this time onto the back porch near where the officers were ticketing. He again threatened to release his dog if the officers did not leave. At that point, according to one of the officers, the defendant took his dog down the back steps and moved toward the two officers, as he yelled profanities and threatened to let his dog go.⁵ In response, one officer informed the defendant that he was under arrest. An altercation then ensued between the officers and the defendant. After the altercation, the defendant was arrested, driven to the police station and then taken by ambulance to a hospital.

The defendant was charged in a substitute information with two counts of assault of a peace officer in violation of General Statutes § 53a-167c (a) (1) and three counts of interfering with an officer.⁶ He was convicted of two counts of interfering with an officer. The jury acquitted the defendant of one count of interfering with an officer and one count of assault of a peace officer, and the court granted the defendant's motion for a judgment of acquittal, made at the conclusion of the state's case-in-chief, on the second count of assault of a peace officer. The defendant received a sentence of one year of incarceration and a penal fine of $1500 on one count of interfering with an officer, and one year of incarceration, execution suspended, and two consecutive years of probation, on another count of interfering with an officer. This appeal followed.

The defendant first claims that the court improperly denied his motion to suppress evidence derived from a warrantless entry onto his property.⁷ The defendant argues that the motion to suppress the evidence should have been granted because the search conducted by the police violated the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut.⁸ We agree in part. "Our standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... Practice Book § 4061 [now § 60-5]; State v. Oquendo, 223 Conn. 635, 645, 613 A.2d 1300 (1992); State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992). [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision...." (Internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997).

In its memorandum of decision on the motion to suppress, the court found that "[a]ny evidence that the state may seek to introduce was yielded voluntarily by the defendant. Any utterances were clearly of the accused's free will.... The accused was not in custody when he made his voluntary utterances. The evidence of utterances that the state may seek to introduce are not the product of an illegal search or seizure.... The dispositive issue is whether, even if the search was illegal, the evidence sought to be suppressed was gathered by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." (Citations omitted; internal quotation marks omitted.) The court found that the defendant's "independent and intervening actions broke the chain of causation and dissipated the taint of any alleged prior illegality."

"Subject to a few well defined exceptions, a warrantless search and seizure is per se unreasonable.... The state bears the burden of proving that an exception to the warrant requirement applies when a warrantless search has been conducted." (Citations omitted; internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 291, 764 A.2d 1251 (2001). "Under both the federal and the state constitutions, the police must first obtain a warrant before conducting a search, unless an exception to the warrant requirement applies." State v. Longo, 243 Conn. 732, 737, 708 A.2d 1354 (1998); see Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (warrant required before every search or seizure "subject only to a few specifically established and well-delineated exceptions"); State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

"Well known federal and state constitutional principles govern the exclusion of evidence derived from a warrantless entry into a home.... Entry by the government into a person's home ... is the chief evil against which the wording of the Fourth Amendment is directed.... [W]arrantless searches and seizures inside a home ... are presumptively unreasonable... and the state bears the burden of showing that an exception to the warrant requirement exists.... To discourage unreasonable searches and seizures, the evidence obtained as a direct result of that illegal search or seizure, as well as the fruits, or evidence derived therefrom, are excluded from evidence, unless the connection between the fruits and the illegal search has been sufficiently attenuated to be purged of its primary taint." (Citations omitted; internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 681-82, 610 A.2d 1225 (1992).

"Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality.... All evidence is not, however, a fruit of the poisonous tree simply...