State v. Coleman

Citation646 A.2d 213,35 Conn.App. 279
Decision Date04 October 1994
Docket NumberNo. 12287,12287
CourtAppellate Court of Connecticut
PartiesSTATE of Connecticut v. Charles COLEMAN.

Bonnie L. Amendola, Sp. Public Defender, with whom, on the brief, was Brian Preleski, Sp. Public Defender, for appellant (defendant).

Judith Rossi, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and John M. Waddock, Asst. State's Atty., for appellee (State).

Before LAVERY, HEIMAN and SPEAR, JJ.

SPEAR, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101(a)(1), 1 assault in the first degree in violation of General Statutes § 53a-59(a)(3), 2 and attempted robbery in the first degree in violation of General Statutes §§ 53a-134(a)(3) 3 and 53a-49(a). 4 The defendant claims that the trial court improperly (1) admitted testimony concerning three knives seized from the defendant's car, (2) instructed the jury with respect to the knives seized from the defendant's car and the partial palm print lifted from the bathtub in the victim's residence, and (3) concluded that the evidence presented by the state was sufficient to convict the defendant. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim was asleep in her bed during the early morning hours of June 23, 1986, when she was awakened by the touch of a knife on her throat and a hand placed over her mouth. The victim struggled with her assailant and tried to grab the knife from him. During the struggle, the victim sustained several lacerations on her right hand and was struck in the face several times. When the victim was finally able to break free, she ran to the kitchen and screamed for help. She then fled to the bathroom with her assailant in pursuit. The victim told her assailant that she was having an asthma attack and needed her medication. He then told her she could "take care of [her] business," and he returned to the bedroom in search of money.

The victim left the water running in the bathroom sink, wrapped a towel around her bleeding hand, ran to the front door, unlocked it and exited her first floor apartment. Once outside, she rang the bell for the upstairs apartment where her parents lived. When they failed to respond immediately, she ran to her father's parked car, and crawled underneath it. She remained there for "quite a while" before emerging to flag down a truck driver who radioed for police.

When the police arrived, they found the front door unlocked and no one inside the victim's apartment. They also discovered that the bathroom window was wide open even though the victim had left it open only a few inches before retiring to bed. At the scene, the victim described her attacker as a black male wearing a face cover that felt like a ski mask and a cotton sweatsuit. She estimated that he was about five feet eleven inches tall and of average weight.

The police obtained a partial latent palm print from the victim's bathtub that matched the defendant's left palm print. The location of the print indicated that it was placed there from inside the tub, consistent with someone entering through the bathroom window. On July 8, 1986, the police seized three knives from the defendant's car pursuant to a search warrant issued with respect to other crimes. The defendant was subsequently convicted and this appeal ensued.

I

The defendant first claims that the trial court improperly admitted testimony describing three knives seized from the defendant's car. In particular, the defendant argues (1) that the knives were seized in violation of the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the Connecticut constitution, and (2) that evidence of the knives was irrelevant and highly prejudicial. Although we agree that the trial court improperly admitted the testimony concerning the knives, we conclude that the error was harmless.

A

The defendant moved to suppress the three knives seized during the search of his car. The defendant argued that the search warrant, although it permitted a search of his residence, did not specify his car as a place to be searched. He claims that the only reference to his car is found on two pieces of paper appended to the affidavit and the search warrant. Thus, he argues that the authorization to search his car, if it existed at all, came from the attachments to the warrant. He claims that the attachments lack the necessary signatures and oaths required for the search of any premises and that they are not dated. In addition, he argues that because the warrant did not incorporate the attachments by reference, the court cannot consider them in determining the validity of the warrant.

At the suppression hearing, the trial court determined that the attachments to the search warrant were proper and authorized the search of the defendant's automobile and the seizure of the three knives therein. The trial court's determination was a finding of fact that will not be overturned unless it was clearly erroneous. Adriani v. Commission on Human Rights & Opportunity, 228 Conn. 545, 548, 636 A.2d 1360 (1994); State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985). "This court cannot retry the facts or pass upon the credibility of the witnesses...." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980). (Internal quotation marks omitted.) Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 41, 633 A.2d 1368 (1993). "When a factual issue implicates a constitutional claim, however, we review the record carefully to ensure that its determination was supported by substantial evidence. State v. Northrop, 213 Conn. 405, 414, 568 A.2d 439 (1990) (reviewing factual findings in fourth amendment claims)." State v. Greenfield, 228 Conn. 62, 68-69, 634 A.2d 879 (1993). Upon review, we conclude that the trial court correctly denied the motion to suppress.

The trial court found that the attachments to the affidavit contained the requisite initials of the affiants, two officers of the New Haven police department, and of Judge Ronan of the Superior Court after he found probable cause for the search and took the officers' oaths. The trial court also found that the attachments were affixed "at the precise spot on the first page [of the affidavit] where the description of the places to be ... searched is set forth and there is no more room in that space on the page and this is then attached adding some words describing the house ... and a 1968 Chevrolet two door sedan, color red, bearing identification number ... 344-DUP."

The court further found that although the warrant provided sufficient space to describe the victim's residence, it did not provide sufficient space to describe the defendant's automobile. The exact description of the automobile contained in the first attachment was thus placed in a second attachment and affixed to the portion of the warrant where the description of the places to be searched is located. This second attachment also contained the requisite initials of the affiants and of Judge Ronan.

Despite the defendant's contention to the contrary, the court found that the body of the affidavit contained a detailed description of the defendant's automobile. Although the court did concede that "it would be better practice to make some reference to the fact [that there are attachments] or put the date on the [attachments]," it nevertheless concluded that the attachments were clearly a part of the warrant and thus the automobile was specifically designated as a place to be searched.

The trial court's findings were supported by substantial evidence and therefore were not clearly erroneous.

B

Although the search of the defendant's vehicle was proper, the testimony concerning the three knives discovered therein should not have been admitted because the state failed to establish a nexus between those knives and the crimes with which the defendant was charged.

At trial, the state offered the testimony of Detective James Stephenson of the New Haven police department, a participant in the inventory search of the defendant's car on July 8, 1986. The defendant objected on the ground that there was no evidence connecting the knives found in his car to the crimes charged against him and that these knives were irrelevant and highly prejudicial. The objection was overruled on the ground that the knives were relevant to show the "accused possessed an article with which the particular crime charged may have been accomplished," and that "the accused had the means to commit the crime." Further, the court concluded that the probative value of such evidence outweighed its prejudicial nature. The defendant took an exception. Stephenson then testified that the knives found in the defendant's car were a survival knife with a sheath found in the front of the car on the left side, a Sheetrock knife with a blue handle found in the glove compartment, and a brown pocketknife found in a tool pouch in the trunk. The state chose not to offer the knives into evidence.

In determining the admissibility of evidence, "[t]he trial court has broad discretion to determine both the relevancy and remoteness of evidence." Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987). "In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling.... Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Citations omitted; internal quotation marks omitted.) Shaywitz v. Singing Oaks Day Camp, Inc., 8 Conn.App. 71, 74, 510 A.2d 1013 (1986); State v. Payne, 219 Conn. 93, 114, 591 A.2d 1246 (1991).

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