State v. Carter

• Decision Date: 05 April 1983
• Citation: 189 Conn. 611,458 A.2d 369
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Nathaniel J. CARTER.

Page 369

458 A.2d 369

189 Conn. 611

STATE of Connecticut v. Nathaniel J. CARTER.

Supreme Court of Connecticut.

Argued Dec. 1, 1982.

Decided April 5, 1983.

Eugene J. Riccio, Asst. Public Defender, with whom, on the brief, was Patricia McAllister, Deputy Asst. Public Defender, for appellant (defendant).

Jonathan C. Benedict, Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellee (state).

Before SPEZIALE, C.J., and ARTHUR H. HEALEY, PARSKEY, SHEA and GRILLO, JJ. SHEA, Associate Justice.

The jury found the defendant guilty of burglary in the first degree in violation of General Statutes § 53a-101(a)(1) and of sexual assault in the first degree in violation of General Statutes § 53a-70(a). He was sentenced to consecutive terms of imprisonment for each offense. In his appeal from the judgment of conviction he has raised four issues: (1) whether his confession was properly admitted into evidence; (2) whether a fingerprint found at the crime scene and identified as that of the defendant should have been excluded; (3) whether his request to charge upon intoxication in relation to the mental element required for the crime of burglary should have been granted; and (4) whether the instructions given to the jury on the elements required by the statutes for a conviction of each offense as charged were correct. We find error only in the failure to charge upon intoxication in relation to the specific intent required for burglary in the first degree.

From the evidence the jury could reasonably have found that in the early morning hours of May 16, 1979, the defendant entered the home of the victim in Greenwich through a rear window which was unlocked. He went upstairs to a bedroom where he found the victim sleeping. When she awoke the defendant threatened her with a knife and forced her to engage in sexual intercourse with him. He then left the premises. The victim could not identify her assailant, but gave a general description of him and said that he smelled of beer. The description was of a black male wearing dungaree type pants. A fingerprint found on the downstairs bathroom window sill of the house was found to be that of the defendant.

I

The circumstances surrounding his arrest about two weeks after the May 16, 1979 incident had occurred, which were thoroughly explored at the pretrial hearing on his motion to suppress, are relied upon by the defendant to support his claim that his confession, as well as his fingerprints taken after the arrest, were the fruit of an unlawful seizure of his person. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

Just before 2:30 a.m. on May 31, 1979, Officers Lawrence Conners and William Carroll of the Greenwich police department overheard a radio dispatch directing other policemen to investigate a burglary on Cary Road. Five to ten minutes later they heard a description of the suspect as a black male dressed in a dungaree type outfit. About 3 a.m. they received a dispatch ordering them to proceed to the eastern side of Greenwich and to investigate a second burglary on River Road. When the officers reached River Road about 3:10 a.m. they observed the defendant riding an unlighted bicycle near the center of the road in a southerly direction at a point about 100 yards south of the location of the second burglary. They beckoned the defendant to stop and he did so.

At the hearing on the motion to suppress, Conners testified that the defendant was riding his bicycle in a hazardous manner and also that he fit the description which had been broadcast earlier of the suspected Cary Road burglar. The scene of that burglary was approximately one-quarter mile away. The defendant was wearing a red sleeveless body shirt and dark pants. He also had a dark blue nylon windbreaker fastened to his bicycle. His clothing was dirty, with pine needles on it, as if he had been rolling on the ground. ¹ When he was asked what he was doing, the defendant responded that he had been assaulted by two white "dudes" in a station wagon and had been looking for a police officer. He said he had been traveling from Port Chester to his home in Stamford. This account aroused some suspicion on the part of the officers because the defendant had been proceeding in the wrong direction if he intended to return to Stamford. The defendant gave his name, but had no identification with him.

A call to headquarters was made to check for warrants outstanding against the defendant and also to advise the officers investigating the Cary Road burglary that a suspect had been found. A radio message from those officers was received inquiring whether the defendant was wearing sneakers or jogging shoes. The defendant was wearing athletic type sneakers similar to jogging shoes and this information was transmitted to the officers on Cary Road.

About five minutes after the defendant had been stopped he was placed in the police car. Before entering the vehicle the defendant was frisked for weapons. After the defendant was in the police car, the officers noticed that he resembled a composite picture made by the Greenwich police department of a suspect wanted for burglaries in the general area.

Within a period of less than ten minutes after the defendant was stopped, Officer Joseph Gavin, who had been investigating the Cary Road burglary, arrived on River Road where the defendant was being held. A distinctive sneaker print, which was believed to have been left by the burglar, had been discovered at the scene of the Cary Road burglary. After the defendant had lifted his foot as requested, Gavin observed that the sneaker tread was similar to the print at the crime scene.

The defendant and his bicycle were transported to Cary Road by Gavin, who then requested the defendant to remove his sneaker. After the police obtained the sneaker, its tread was compared to the print left on a sink in the kitchen of the burglarized residence and they were found to be identical.

The defendant was then taken to the Greenwich police station for further questioning. There, a summons for the infraction of operating an unlighted bicycle at night in violation of General Statutes § 14-288(a) was given to him. The normal police policy was to bring all violators who had no driver's license or other proof of identity to the police station before issuing a summons.

Although the defendant contends otherwise in his brief, ² we have concluded that Conners and Carroll were justified in stopping the defendant because of both the traffic law violation they observed and their knowledge of the circumstances of the nearby Cary Road burglary, which had been reported about forty minutes earlier. Proximity in time and place of the stop to the crime is highly significant. Luckett v. State, 259 Ind. 174, 180-81, 284 N.E.2d 738 (1972); Commonwealth v. Nastari, 232 Pa.Super. 405, 411, 335 A.2d 468 (1975); State v. Smith, 9 Wash.App. 279, 280-81, 511 P.2d 1032 (1973); 3 LaFave, Search and Seizure § 9.3(d). The description of a black male wearing dungaree type clothes might have been too general in other contexts. At 3 a.m. in a location close to the scene of two recent burglaries, one on Cary Road a quarter mile distant and the other, which Conners and Carroll had been ordered to investigate, about a hundred yards north on River Road, the description was sufficiently distinctive to give rise to a "reasonable and articulable" suspicion that the defendant had engaged in criminal activity. Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The defendant claims that even if his initial stop was not improper, the police exceeded the permissible scope and duration of such an investigative detention prior to the time when the facts known to them would support the inference of probable cause necessary for an arrest. We disagree. It is true that the traffic law infraction would not have been a sufficient basis for an arrest, since the issuance of a summons is the prescribed procedure. General Statutes § 51-164n(a); Practice Book §§ 1004, 1007. The failure of the defendant to produce some proof of his identity may have justified his detention until some further assurance of his name and residence could be obtained. The officers, however, were not interested in holding him at the scene for that purpose. For reasons we have found sufficient, they suspected that he had committed the burglaries which were under investigation and they wanted to keep him until their suspicions were confirmed or removed.

"A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). "The results of the initial stop may arouse further suspicion or may dispel the questions in the officer's mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer's suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances." State v. Watson, 165 Conn. 577, 585, 345 A.2d 532 (1973).

The procedure followed after the defendant was first accosted by Conners and Carroll was consistent with these principles. The initial investigation concerned only the identity of the defendant, a necessary inquiry for the issuance of a traffic violation summons, and his present activity. His response that he was going to Stamford, which the officers believed was untruthful because of the direction in which he was proceeding, was ground for additional suspicion. The inquiry from the Cary Road burglary unit as...