State v. D'Ambrosia

• Decision Date: 03 May 1988
• Docket Number: No. 5170,5170
• Citation: 14 Conn.App. 309,541 A.2d 880
• Parties: STATE of Connecticut v. Michael D'AMBROSIA.
• Court: Connecticut Court of Appeals

Page 880

541 A.2d 880

14 Conn.App. 309

STATE of Connecticut v. Michael D'AMBROSIA.

No. 5170.

Appellate Court of Connecticut.

Argued Oct. 8, 1987.

Decided May 3, 1988.

Susan M. Hankins, Asst. Public Defender, for appellant (defendant).

James A. Killen, Deputy Asst. State's Atty., with whom, on the brief, were Patrick J. Clifford and James G. Clark, Asst. State's Attys., for appellee (State).

Before BORDEN, DALY and O'CONNELL, JJ.

DALY, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103(a), conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-103(a) and 53a-48(a), criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49(a) and 53a-59(a)(1), and larceny in the sixth degree in violation of General Statutes § 53a-125b.

The defendant claims that the trial court erred (1) in failing to suppress evidence seized pursuant to an automobile search, (2) in denying the defendant access to the psychiatric records of a state's witness, (3) in admitting opinion evidence to hypothetical questions, and (4) in determining there was sufficient evidence to convict the defendant of criminal attempt to commit assault in the first degree.

The jury could reasonably have found the following facts. On October 29, 1985, the complainant, a seventy-nine year old woman, returned to her house on Leetes Island Road in Guilford and discovered that the rear door to the house had been smashed. Officer Michael Dennison of the Guilford police department investigated the break-in. One of the complainant's neighbors informed Dennison that she had observed a heavy set white male in dark clothing run down the driveway and enter a dark, older model American car with a white top. The neighbor stated that she also observed the passenger of the car, who was a heavy set white male with messy, dirty blonde hair and an unkempt beard, and who also wore dark clothing. The complainant mentioned to the officer that she had been involved in a motor vehicle accident the previous day.

Approximately forty-five minutes later, an officer observed a car being driven by the defendant and carrying a passenger, a defendant in a related action, Albert Knous, which matched the neighbor's description. The officer then processed the license plate number through the state department of motor vehicles and determined that the license plate was not registered to be on that particular car.

Another officer, Steven Spurrell, approached the vehicle which he found parked in front of the town hall and asked the defendant for his license and registration. The defendant was unable to produce either document, but indicated that the car belonged to Jonathan Schofield, a friend of his, who was working that day. At this time, another officer had arrived at the scene and both the defendant and Knous were searched for weapons. The defendant and Knous denied any knowledge of the reported burglary. Spurrell testified that he had known both the defendant and Knous as "regular customers" with the Guilford police department. On the basis of his knowledge of the two men's previous involvement with the police, including an arrest for carrying a weapon in a motor vehicle, Spurrell checked the vehicle for weapons. A hunting knife with a seven inch blade was found under the driver's seat. Both men were arrested for carrying a weapon in a motor vehicle.

The following day, October 30, 1985, John Schofield, the owner of the seized vehicle, indicated to the police that he had allowed the defendant permission to use his car. Schofield consented to a search of his car. The police seized a metal box from the trunk of the car and from the interior of the car, they seized a motor vehicle accident report concerning the accident the previous day involving the complainant.

At trial, Knous testified for the state and acknowledged that the defendant had approached him while he was picking apples on Long Hill Road. Knous testified that the defendant told him that he had broken into a garage at 98 Leetes Island Road and cut the brake lines to the car in the garage and stole a metal tool box from the garage. At that time, the defendant informed Knous of a television set that he observed at the premises and asked Knous if he wanted to join him, steal the television and divide the proceeds of its sale. The pair proceeded to 98 Leetes Island Road where Knous entered through the rear door which he claimed was previously smashed. Upon hearing a car coming up the driveway, Knous departed without taking anything.

Additionally, the state produced expert testimony which indicated that the brake line tubing of the complainant's car was cut by means of a knife-type instrument. Neither expert could, however, determine whether the knife which had been seized by the police was the cutting instrument used. Both experts testified that the complainant would not have been able to stop her vehicle upon descending her steep driveway which led to an intersection. Moreover, the experts testified as to what would happen when a driver applied his brakes, after the brake lines of a car had been cut.

I

In his first claim of error, the defendant claims that the trial court erred in refusing to suppress the evidence obtained from Schofield's car. Specifically, the defendant claims error in the seizure of the knife discovered underneath the seat and the seizure of the metal tool box recovered from the trunk. We find no merit in the defendant's argument.

A

The court did not err by allowing the knife seized from the car into evidence. The defendant maintains that a Terry stop was not justified in this case because the descriptions of the car and of the passenger were too general in nature. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In support of this argument, the defendant cites United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690 694-95, 66 L.Ed.2d 621 (1981), which states that, in order to have a Terry stop withstand challenge, the "detaining officers must have a particularized and objective basis for suspecting the particular person[s] stopped of criminal activity." The defendant argues that there was no such particularized description, such as the marker plate, the make of the car, the age of the passenger, his height, facial features, or clothing, that would supply a distinctive description to justify a Terry stop.

"[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, supra, 392 U.S. at 22, 88 S.Ct. at 1880. The United States Supreme Court has recognized that "it may be the essence of good police work to adopt an immediate response." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Although the defendant asserts that the police need a specific and particular description, our Supreme Court has stated that "[w]hat constitutes a reasonable and articulable suspicion depends on the totality of the circumstances." State v. Aillon, 202 Conn. 385, 399, 521 A.2d 555 (1987).

In the present case, Spurrell was justified in detaining the defendant and Knous to investigate both the misuse of the license plate and the burglary. See State v. Perez, 181 Conn. 299, 304, 435 A.2d 334 (1980). The car was stopped within two and one-half miles of the situs of the crime and within an hour of the time when the dispatcher had received the initial complaint. " 'Proximity in time and place of the stop to the crime is highly significant' in the determination of whether an investigatory detention is justified by reasonable and articulable suspicion." (Citations omitted.) State v. Aillon, supra, 202 Conn. at 400, 521 A.2d 555, quoting State v. Aversa, 197 Conn. 685, 691, 501 A.2d 370 (1985). Additionally, the similarities between the neighbor's description of the culprits and their car, with the actual appearance of the car and Knous was sufficient to warrant Spurrell in making an investigatory stop. See State v. Mitchell, 7 Conn.App. 46, 507 A.2d 1017, cert. granted, 200 Conn. 805, 512 A.2d 230 (1986). Furthermore, the officer would have been justified in making a stop of the vehicle for an apparent violation of improper use of registration. General Statutes § 14-147(c); State v. Mitchell, supra, 7 Conn.App. at 60, 507 A.2d 1017. Under the totality of circumstances, we cannot say that the police action was inappropriate or unreasonable under the fourth amendment.

Since the officer was justified in making the stop, he was justified in "patting down" the defendant and conducting a protective search of the passenger compartment of the car. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1879-80. Moreover, Spurrell's first hand knowledge of the criminal history of both the defendant and Knous justified the protective search. Michigan v. Long, supra, 463 U.S. at 1049-50, 103 S.Ct. at 3480-81.

B

The defendant claims that the trial court erred in admitting the gray metal tool box found in the trunk of the car pursuant to Schofield's consent to search the car the following day. Schofield reclaimed the car from the police station the day after it was impounded because he needed it for work. The defendant claims that Schofield's consent was involuntary and invalid. Because we find that the defendant is not entitled to challenge the search, we do not consider these issues.

In order for a defendant to challenge a search of an automobile, he must establish that he had a reasonable expectation of privacy in the area searched. State v. Manson, 13 Conn.App. 220, 535 A.2d 829 (1988). In this case, while there may be evidence that the defendant had an expectation of...