State v. Brosnan, 14297

• Decision Date: 28 April 1992
• Docket Number: No. 14297,14297
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John J. BROSNAN.

Page 49

608 A.2d 49

221 Conn. 788

STATE of Connecticut v. John J. BROSNAN.

No. 14297.

Supreme Court of Connecticut.

Argued Dec. 3, 1991.

Decided April 28, 1992.

Marjorie Allen Dauster, Deputy Asst. State's Atty., with whom, on the brief, were C. Robert Satti, Sr., State's Atty., Peter McShane, Deputy Asst. State's Atty., and Sarah Taffel, Law Student Intern, for appellant (state).

Jacques J. Parenteau, New London, for appellee (defendant).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS, COVELLO, BORDEN and BERDON, JJ.

BORDEN, Associate Justice.

The principal issue in this appeal is whether an overnight guest in another's home has a limited right to resist an illegal entry by the police into the bedroom that he is occupying. After a jury trial, the defendant, John J. Brosnan, was convicted ¹ of two counts of interfering with an officer in violation of General Statutes § 53a-167a(a), ² and of one count of criminal mischief in the third degree in violation of General Statutes § 53a-117(a)(1)(A). ³ He appealed from that judgment of conviction to the Appellate Court, which reversed the judgment and ordered a new trial on the first count of interfering with an officer at 359 Long Hill Road in Groton. 24 Conn.App. 473, 589 A.2d 1234. With respect to the second and fifth counts of interfering with an officer and criminal mischief at the Groton police department respectively, the Appellate Court remanded the case to the trial court to hold a hearing in order to determine whether the erasure by the police of a certain videotape of the defendant's conduct at the police station had been done in bad faith. State v. Brosnan, 24 Conn.App. 473, 485, 589 A.2d 1234 (1991).

Upon our grant of certification to appeal; ⁴ State v. Brosnan, 219 Conn. 907, 593 A.2d 134 (1991); the state appealed to this court from the judgment of the Appellate Court. The state claims that the judgment should be reversed because: (1) that court improperly held that the fourth amendment both (a) makes the common law privilege to resist an unlawful entry available to a person when he is not in his own home, and (b) extends the common law privilege of resistance of an illegal entry to resistance of an illegal arrest; (2) if the fourth amendment controls who has a privilege to resist an illegal entry, the Appellate Court improperly determined that the defendant was an overnight guest at the place where he was arrested; (3) if the defendant was entitled to a jury instruction on the privilege to resist an illegal entry, the Appellate Court improperly determined as a matter of law that the entry by the police into the place in question and the subsequent arrest of the defendant were illegal; and (4) the Appellate Court improperly remanded the case to the trial court for further evidentiary findings on whether the police erased the videotape in bad faith. We affirm in part and reverse in part.

The conviction of the defendant arises out of his conduct in the early morning hours of September 23, 1989, while being arrested at the apartment of his neighbor, Lisa Joy Conti, at 359 Long Hill Road, Groton, and his subsequent conduct at the Groton police station following that arrest. As stated by the Appellate Court and as disclosed by the evidence, the jury could reasonably have found the following facts. At approximately 3:15 a.m. on September 23, 1989, Officer John W. Lambert of the Groton police department responded to a complaint that fireworks were being discharged at an apartment complex located at 359 Long Hill Road. Lambert saw the defendant in the parking area. In response to Lambert's questions, the defendant denied any involvement in discharging fireworks, and Lambert left the area. At approximately 4:15 a.m., four Groton police officers--Matthew Morton, William Jervis, Gary L. Pendleton and Timothy Wilbur--responded to a similar complaint. When they arrived at the apartment complex, the complainant directed the attention of Morton to a first floor window facing the parking lot, and told the officer that fireworks had been discharged from that window. The complainant also told the officers that the defendant had just run back into the building shortly before the police had arrived. After the police found pieces of paper from discharged firecrackers on the ground in front of the window and the remains of exploded bottle rockets in the parking lot, Morton looked in the window and saw red cellophane wrappings on a bedroom floor and the fully clothed defendant lying on a bed.

The officers determined that the window was located in apartment eleven. Morton and Jervis went to the front door of the apartment, while Pendleton and Wilbur knocked at the rear sliding door. The tenant, Conti, answered the rear door. As Pendleton and Wilbur entered through the rear door of the apartment, Morton and Jervis entered through the front door. Morton and Pendleton then entered the bedroom, while Jervis and Wilbur stood at the bedroom door. The defendant was asleep. ⁵ Morton and Pendleton shook the defendant to awaken him, and told him to get up because he was under arrest. The defendant was groggy and smelled of alcohol. When they attempted to pull him from the bed, the defendant attempted to break free and a struggle ensued. That struggle was the basis for the conviction on the first count of interfering with an officer.

The police took the defendant to the police station, where a second struggle ensued in the booking room. During that struggle, the defendant kicked a computer, breaking a key that was in the lock of the computer. That struggle and the damage to the computer and the key were the bases for the convictions of interfering with an officer, on the second count, and of criminal mischief, on the fifth count.

In his appeal to the Appellate Court, the defendant's principal claim was that the trial court "improperly refused to charge the jury on the common law privilege to resist an unlawful arrest in the home." State v. Brosnan, supra, 24 Conn.App. at 476, 589 A.2d 1234. The defendant had filed a request that the court charge the jury that, since the defendant was being arrested for misdemeanors only, and since the fourth amendment, in the absence of consent, prohibits police from entering a suspect's home, without a warrant, ⁶ to make an arrest, the jury must find that the arrest of the defendant was unlawful, and that his resistance was privileged so long as that resistance did not amount to an assault on the police officer. ⁷ The trial court declined to charge the jury in accordance with that request. ⁸ The Appellate Court agreed with the defendant that he was entitled to such an instruction. Id., at 477, 589 A.2d 1234.

The Appellate Court's conclusion was based upon certain facts that it took to have been established in a hearing on the defendant's unsuccessful motion to suppress evidence that the police had seized from the bedroom at the time of the defendant's arrest. ⁹ The Appellate Court reasoned that, because the defendant was an overnight guest in Conti's apartment, he had a reasonable expectation of privacy in the apartment; see Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); and, therefore, was entitled to claim the protection of the fourth amendment. State v. Brosnan, supra, 24 Conn.App. at 478-79, 589 A.2d 1234. The court reasoned further that, because the fourth amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony or misdemeanor arrest; see Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); State v. Gallagher, 191 Conn. 433, 437 n. 4, 465 A.2d 323 (1983); the arrest of the defendant in Conti's apartment was unlawful. State v. Brosnan, supra, 24 Conn.App. at 480, 589 A.2d 1234.

Since, in the Appellate Court's view, the arrest was unlawful and occurred within Conti's apartment where the defendant had a reasonable expectation of privacy, the court held that, under State v. Gallagher, supra, 191 Conn. at 441, 465 A.2d 323, General Statutes § 53a-23, ¹⁰ which prohibits the use of physical force to resist an arrest, whether legal or illegal, did not abrogate the defendant's common law privilege to resist an illegal entry into the home. The court read Gallagher to express a rule that "with respect to entries made into a place where the occupant enjoys a fourth amendment right, that occupant has the common law privilege to offer reasonable resistance, not rising to the level of an assault, to an unlawful entry. These issues, including any issue of consent, are properly issues to be resolved by the trier of fact under the totality of all of the circumstances." State v. Brosnan, supra, 24 Conn.App. at 482, 589 A.2d 1234. Accordingly, the court concluded that the trial court had "improperly refused to charge the jury with respect to the common law privilege on the charge of interfering that was alleged to have occurred at Conti's apartment." Id.

With respect to the convictions of interfering with an officer and criminal mischief at the Groton police station, the Appellate Court undertook plain error review of the defendant's claim, which he had not preserved at trial, and concluded that the case should be remanded to the trial court for a determination of whether the police, in bad faith, had erased a certain videotape of the defendant's conduct in the booking room of the police station. Id., at 484, 589 A.2d 1234. The Appellate Court read the trial court record to establish that, although the defendant had attempted to elicit testimony regarding the erasure of the videotape and the reasons for its erasure, the trial court had sustained the state's objections to such testimony and thus had deprived the defendant of an opportunity to establish that the destruction had been in bad faith. Id., at 483-84, 589 A.2d 1234; see Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), reh....