State v. Darwin

• Decision Date: 25 June 1971
• Citation: 161 Conn. 413,288 A.2d 422
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Roy F. DARWIN.

Page 422

288 A.2d 422

161 Conn. 413

STATE of Connecticut v. Roy F. DARWIN.

Supreme Court of Connecticut.

June 25, 1971.

John F. Shea, Jr., Sp. Public Defender, with whom was Scott B. Clendaniel, Manchester, for appellant (defendant).

Robert J. Pigeon, State's Atty., for appellee (state).

Before THIM, RYAN, SHAPIRO, FITZ GERALD ^* and KLAU, ^* JJ.

THIM, Associate Justice.

The defendant, Roy F. Darwin, was first arrested on December 6, 1963, on a coroner's warrant. He was held in the custody of the state police until the afternoon of December 8. On December 6 and 7 an automobile owned by the defendant's wife was searched, and property contained therein belonging to both the defendant and his wife was seized under the purported authority of the Tolland County coroner. Among the items taken from the vehicle were dust vacuumings from the floor and the front seat. Tests were made on the front seat at the laboratory of the state department of health. On December 8, 1963, the defendant was served with a bench warrant. On February 13, 1964, following a hearing on a motion to suppress, the December 6 and 7 search was held to be unconstitutional and all properties then seized were ordered returned. The vacuumings and the seat were replaced in the vehicle. On February 20, 1964, the vehicle was returned to the defendant's wife. That day, after the return, the state's attorney applied to the court for a search warrant for the same vehicle and for two flashlights contained therein. On that day, the warrant was issued and the vehicle was again seized. The vehicle was again vacuumed, and tests were done on the vacuumings and were redone on the seat. The results of the tests were introduced at the second trial. The vacuumings contained hairs almost identical to those found on the victim's clothing. The front seat of the car was stained with human blood.

On December 18, 1963, the defendant was indicted for first-degree murder, and on January 24, 1964, he entered a plea of 'Not Guilty.' After a jury trial, on March 25, 1964, a verdict was returned finding the defendant guilty of second-degree murder. That verdict was accepted and recorded, and on April 7, 1964, the defendant was sentenced to the Connecticut state prison for life. He appealed to this court from the judgment rendered and it was affirmed. State v. Darwin, 155 Conn. 124, 230 A.2d 573. The defendant then petitioned the United States Supreme Court for certiorari and it was granted. That court then reversed the conviction and remanded the case for further proceedings. Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630. On June 25, 1968, we remanded the case to the Superior Court for a new trial. State v. Darwin, 156 Conn. 661, 243 A.2d 82.

On December 10, 1968, the defendant filed a motion to suppress, requesting the return of the items seized under the February 20, 1964, search warrant and asking that the use of those items be suppressed due to inadequacies in the warrant and the issuance of that warrant. That motion was denied. The defendant moved for a dismissal of the indictment on December 23, 1968, alleging that the bench warrant was defective. That motion also was denied.

On January 15, 1969, after a second trial to a court of three judges pursuant to his election under General Statutes § 54-82, the defendant was again found guilty of second-degree murder, and on February 4, 1969, was sentenced to the state prison for life. From the judgment rendered the defendant has appealed, claiming errors in the denial of his motions to suppress and to dismiss, and in the trial. On the two motions, he has claimed as error (1) the refusal of the court to find certain admitted or undisputed material facts, (2) that certain conclusions were allegedly not supported by the facts found and (3) the court's failure to reach certain conclusions. On the trial, the defendant has assigned as error (1) the court's refusal to find certain admitted or undisputed material facts, (2) the finding of certain facts without evidence, (3) the finding of certain facts in language of doubtful meaning, (4) that certain conclusions were allegedly not supported by the facts found, (5) the overruling of the defendant's claims of law and (6) the court's failure to reach certain conclusions.

I

We begin with the motion to suppress. It is contended, inter alia, that the affidavit for the search warrant was insufficient to enable the judge to make an independent determination of probable cause. The purpose intended to be served by the affidavit 'is to enable the issuing authority to weigh the persuasiveness of the facts relied upon by the affiant or complainant and, from them, to determine whether the necessary probable cause exists for the issuance of the warrant.' State v. Allen, 155 Conn. 385, 391, 232 A.2d 315, 319; Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503; State v. DeNegris, 153 Conn. 5, 8, 212 A.2d 894. Thus, the underlying facts and circumstances as set forth in the affidavit must be sufficient to enable the issuing authority to perform its function. State v. Allen, supra; State v. DeNegris, supra.

The affidavit here gave four grounds for issuing the warrant. The four grounds state, basically, that a murder was committed, that the defendant was arrested on a bench warrant for that murder, that complaints from certain reputable individuals had been received, that the records of the Tolland County state's attorney's office indicate that the defendant committed the murder, and that the flashlights 'and the motor vehicle herein described . . .was (sic) used by said Roy F. Drawin in committing said crime of murder.'

Relative to this affidavit, the specific question which the court was required to answer was whether there was a valid reason for searching and seizing, inter alia, the described vehicle. Certainly the mere fact that one is charged with a crime does not give cause to search and seize anything he owns or has used. The court was, therefore, required to determine, independently, that it was likely that the defendant had used the vehicle and flashlights in committing the crime with which he was charged. The affidavit is totally devoid of any facts as to this. It states only the conclusion that the vehicle was used in the commission of the crime. This was clearly insufficient. The court could not possibly make an independent determination of the existence of probable cause from the facts stated in the affidavit. The search warrant was, therefore, defective.

While the state, during oral argument before us, conceded that the search warrant was defective, it contends that the defendant could not attack it for three reasons, (1) that by not attacking it before or during the first trial the defect was waived, (2) that the car was owned by Mrs. Darwin and thus the defendant had no standing and (3) that by reversing on the ground of an inadmissible confession, and by not mentioning the search warrant, the validity of which the defendant had raised before it, the United States Supreme Court implied an affirmance of this court's dicta which stated that the warrant was valid. State v. Darwin, 155 Conn. 124, 144-147, 230 A.2d 573, reversed and remanded, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630.

The first trial ended in a verdict of guilty and a judgment was rendered. That judgment was appealed, first to this court and then to the United States Supreme Court. The end result was a reversal and the ordering of a new trial. The purpose of a new trial is to have an error-free trial. The trial is 'new' in every sense. It is as if no trial had ever taken place. See State v. Adjmi, 170 So.2d 340 (Fla.App.); Cichos v. State,246 Ind. 680, 208 N.E.2d 685; People v. Corbo, 17 A.D.2d 351, 234 N.Y.S.2d 662. An invalid search, therefore which was not contested on the first trial may be contested by a motion to suppress prior to the second trial. United States v. Romano, 241 F.Supp. 933 (D.Me.); United States v. Watson, 146 F.Supp. 258 (D.D.C.). By the same token, evidence which was not objected to at the first trial may be contested at the second. It would not be compatible with the theory of a new trial to tie the hands of counsel so that any errors waived in the first trial are forever waived. Thus, the defendant did have a right to raise the issue of a defective search warrant; that right had not been waived.

As to the claim that the defendant had no standing to challenge the search and seizure, the general rule is that one must have been a victim of a search or seizure; the search and seizure must have been directed against him. Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697. It has often been stated that the challenger must show ownership or possession of the seized property, or have 'a substantial possessory interest in the premises searched.' Ibid. That possessory interest must be 'greater than the interest of an 'invitee or guest. " Id., 263, 80 S.Ct. 732. In Jones, however, that rule was modified. The court observed that private property law distinctions should not be applied to the administration of criminal law, for '(t)o do so would not comport with our justly proud claim of the procedural protections accorded to those charged with crime.' Jones v. United States, supra, 267, 80 S.Ct. 734. The court then enunciated the following rule: '(A)nyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him.' Ibid. It follows that one who has a substantial interest in the property searched, and who is absent therefrom because he is in the custody of the police, would have standing to challenge the validity of that search. Here, the car was registered in the defendant's wife's name. To hold, however, that a vehicle titularly owned by a wife is not also owned by the husband for purposes of search and seizure...