State v. Chiarizio, 3610
| Decision Date | 26 August 1986 |
| Docket Number | No. 3610,3610 |
| Citation | 514 A.2d 370,8 Conn.App. 673 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Michael CHIARIZIO. |
Syllabus by the Court
Convicted of the crimes of professional gambling, of using a telephone to transmit gambling information and of possession of gambling records, the defendant appealed to this court. At the defendant's trial, certain tape recordings, which had been obtained under a wiretap order issued by a three judge panel pursuant to statute (§ 54-41d) and which contained incriminating conversations the defendant had had on a telephone located in a Newington bar, were introduced into evidence. Held:
1. The defendant's challenge to the wiretap order on the grounds that the issuing panel had failed to determine whether the facility from which the interceptions were authorized was public and had failed to make the finding required by § 54-41d(7) that a special need existed to intercept communications over public facilities was unavailing; § 54-41d(7) does not require the panel to make a specific finding as to the public nature of the facilities and the evidence presented did not establish that the telephones here, which were leased to a private, commercial establishment, were public within the meaning of that statute.
2. The defendant's claim to the contrary notwithstanding, the issuing panel's written statement which accompanied the wiretap order satisfied the statute (§ 54-41e) which requires such a statement "setting forth in detail [the panel's] determination made in accordance with the provisions of section 54-41d and the grounds therefor...."
3. The defendant's claim that the state's attorney for the judicial district of Hartford-New Britain, who had applied for the wiretap order, was not authorized to make such an application was without merit; the federal wiretap statute (18 U.S.C. § 2516 authorizes application by "the principal prosecuting attorney of any political subdivision [of the state]" and a judicial district is a political subdivision for the purposes of that statute.
4. The trial court did not err in admitting into evidence an order by the judicial panel requiring the telephone company to assist the state in placing the wiretap.
5. The defendant's challenge to the admissibility of the tape recordings was without merit; the evidence presented concerning the chain of custody of the tapes was sufficient to support the finding that there was a reasonable probability that they had not been tampered with and, pursuant to statute (§ 54-41i), those tapes were delivered in a sealed condition to the panel's authorized custodian within a reasonable time from the expiration of the wiretap period.
6. The trial court did not abuse its discretion in restricting the defendant's cross-examination of the state's witness who had identified the defendant's voice on the tape; the defendant's attempt to impeach that witness's credibility by asking him to identify other voices with which, unlike that of the defendant, he was not familiar would not have afforded the jury any basis on which to judge his credibility.
Maxwell Heiman, with whom was William J. Tracy, Jr., Bristol, for appellant (defendant).
F. Kent Sistare, Jr., Sp. Asst. State's Atty., with whom, on brief, were John M. Bailey, State's Atty., Frank Ianotti, Asst. State's Atty. and James G. Clark, Deputy Asst. State's Atty., for appellee (state).
Before DUPONT, C.J., and BORDEN and SPALLONE, JJ.
The defendant appeals from the judgment of conviction, after a jury trial, of three counts of professional gambling in violation of General Statutes § 53-278d(b), three counts of using a telephone to transmit and receive gambling information in violation of General Statutes § 53-278d(a), and one count of possession of gambling records in violation of General Statutes (Rev. to 1979) § 53-278c(e). His conviction resulted in part from the introduction into evidence of tape recordings of his conversations, over a telephone located at a bar known as The Ivy Hill Lounge (the lounge), which were intercepted pursuant to a judicially authorized wiretap. The court denied the defendant's motions to suppress as evidence the tape recordings of his conversations. The principal issues are: (1) whether a telephone leased to a bar and made available for local calls to its patrons is a public telephone facility within the meaning of General Statutes § 54-41d(7); (2) whether General Statutes § 54-41e requires more from the judicial panel issuing a wiretap order than a written statement, based on the supporting affidavit and application, specifying in the language of the statute the findings required by the statute; and (3) whether the state's attorney for a judicial district is barred by federal law from applying for a wiretap order. The defendant also raises three evidentiary claims, one of which involves the nature and timing of the statutory requirement that tape recordings of the intercepted conversations be sealed. We find no error.
The facts are not in dispute. Pursuant to General Statutes § 54-41b, the state's attorney for the judicial district of Hartford-New Britain 1 applied to a judicial wiretap panel for permission to intercept the telephonic communications of the defendant and other unknown persons over telephone facility number 666-4653, located at the lounge, in Newington, described as a commercial location. Attached to the application and specifically incorporated by reference was the affidavit of Trooper John S. Drescher.
Drescher's affidavit disclosed, inter alia, that the main business of the lounge was the service of food and of alcoholic beverages. The affidavit also stated that telephone company records revealed that telephone facility 666-4653 was located within the lounge premises, that it was leased to the business, and that there were two extensions to the facility within the lounge. The affidavit further disclosed that there were three telephones located on or behind the bar and in the kitchen, all being extensions of number 666-4653, and that the defendant was using these telephones to engage in professional gambling and to transmit and receive gambling information.
The application and affidavit were submitted to the wiretap panel of three judges, which ordered "the interception of the wire communications of [the defendant] and other unknown persons, and transmitted over facility no(s). 666-4653, located at 244 Hartford Avenue, Newington, Conn., The Ivy Hill Lounge." The order contained the following language: "The panel, pursuant to Section 54-41d, of the General Statutes, has unanimously determined on the basis of the facts submitted by the applicant in [Drescher's affidavit] that there is probable cause to believe that" the nine findings required by General Statutes § 54-41d exist. The nine findings of probable cause made by the panel essentially tracked the statutory language of General Statutes § 54-41d. The seventh finding, which corresponded to General Statutes § 54-41d(7), was as follows: "(7) if the facilities from which the wire communication is to be intercepted are public, a special need exists to intercept wire communications over such facilities (if applicable)."
The wiretap order was executed, resulting in three reels of tape recordings containing the defendant's conversations over the telephones in the lounge. The defendant filed three separate motions to suppress his intercepted conversations. The first claim was, inter alia, that "[t]he facilities from which the wire communications were intercepted are public and the application for [the] order ... makes no application of special need sufficient to support the [order]...." The court, Hale, J., denied this motion. The second and third motions claimed, respectively, (1) that the order was facially invalid because the issuing panel failed to state the grounds for its determinations of probable cause as required by General Statutes § 54-41e, and (2) that the order was invalid because the state's attorney was not an authorized person to apply for it, pursuant to applicable federal law. The court, Byrne, J., denied these motions 2 and the evidence was admitted in the trial. This appeal followed.
THE DEFENDANT'S MOTIONS TO SUPRESS
THE PANEL'S FAILURE TO DETERMINE WHETHER THE FACILITY WAS
The defendant's first claim of error involves General Statutes § 54-41d(7), which authorizes the panel to issue a wiretap order "if the panel determines on the basis of the facts submitted by the applicant that there is probable cause to believe that: ... (7) if the facilities from which a wire communication is to be intercepted are public, a special need exists to intercept wire communications over such facilities...." The defendant argues that this language requires a specific finding by the panel of probable cause as to whether the facility 3 is public and, if so, a specific finding of probable cause that a special need exists. The defendant further argues that the evidence produced at the hearing on his motion to suppress indicates that the facility tapped was a public telephone, that a reasonable prior investigation by the applicant would have revealed that the telephone had sufficient indicia of publicity to warrant submission of the question of its character to the panel for determination, and that finding number seven of the panel's order was insufficient to meet the mandate of the statute. We reject the defendant's arguments.
First, the statute does not, as the defendant argues, require that the issuing panel make a specific finding as to whether the facility is public and, if so, whether a special need exists. General Statutes § 54-41d(7) requires, for wiretap authorization, that "the panel [determines] on the basis of the facts submitted by the applicant that there is probable cause to believe that: ... (7) if the facilities from...
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