State v. Davis

• Decision Date: 31 July 2007
• Docket Number: No. 17271.,17271.
• Citation: 283 Conn. 280,929 A.2d 278
• Parties: STATE of Connecticut v. James L. DAVIS III.
• Court: Connecticut Supreme Court

929 A.2d 278

283 Conn. 280

STATE of Connecticut v. James L. DAVIS III.

No. 17271.

Supreme Court of Connecticut.

Argued January 5, 2007.

Decided July 31, 2007.

Elizabeth M. Inkster, senior assistant public defender, for the appellant (defendant).

Michael L. Regan, state's attorney, with whom, on the brief, were Kevin T. Kane, chief state's attorney, and Denise B. Smoker, senior assistant state's attorney, for the appellant (state).

Susan O. Storey, chief public defender, Martin Zeldis, chief of legal services, and Kevin Smith and Catherine Kollet, certified legal interns, filed a brief for the office of the chief public defender as amicus curiae.

Jon L. Schoenhorn, Hartford and Conrad Ost Seifert, Old Lyme, filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

Denise B. Smoker, Rocky Hill, filed a brief for the office of the chief state's attorney as amicus curiae.

BORDEN, NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and SULLIVAN, Js.

PALMER, J.

The principal issue in this appeal is whether a criminal defendant has a state constitutional right to challenge the legality of a search, notwithstanding the fact that he had no reasonable expectation of privacy in the subject of the search, if he was legitimately on the searched premises or was charged with an offense of which possession of the seized item is an element. A jury found the defendant, James L. Davis III guilty of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a,¹ three counts of assault in the first degree in violation of General Statutes § 53a-59 (a)(5),² and carrying a pistol without a permit in violation of General Statutes § 29-35(a).³ The trial court rendered judgment in accordance with the jury verdict,⁴ and the defendant appealed directly to this court pursuant to General Statutes § 51-199(b)(3). On appeal, the defendant claims that (1) the trial court improperly denied his motion to suppress certain evidence seized by the police on the ground that he did not have standing to challenge the legality of the search under article first, § 7, of the state constitution,⁵ (2) the evidence was insufficient for the jury to have found him guilty of the charges beyond a reasonable doubt, and (3) the trial court improperly charged the jury on reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The events in question took place in the early morning hours of November 14, 1999, at the Sportsmen's Athletic Club (club) at 40 High Street in Norwich. Joseph Ellis arrived at the club with Susan Gomez at approximately midnight. Ellis had arranged to meet Jermaine Floyd, Timothy McCoy and Xavier Cluff there. The defendant, Susan Gomez' estranged husband, and Ricky Gomez, Ron Pires, Clayton Ballinger and Yolanda Pires were in the pool room of the club when Ellis arrived. Ellis went to the bar area, accompanied by Floyd and McCoy, and saw Ricky Gomez and Ron Pires, both of whom he knew, looking at him through a service window between the bar and the pool room. Ellis then left the bar area and went to the club's office to make arrangements for a birthday party. When he came out of the office, Ellis saw Ricky Gomez, Ron Pires and a third person whom he could not clearly see walk in and out of the bathroom several times. Ricky Gomez left the club, came back with something concealed under his jacket and again entered the bathroom. Gomez then left the bathroom, and, shortly thereafter, another person came out and started shooting a gun. The shooter's face was covered with a cloth of some type.

The shooter first shot Joseph Dubose. He then shot Ellis in the left leg and went to the front door of the club, where he fired two more shots. He returned to Ellis and shot him in the right leg, upper right arm and armpit,⁶ and left forearm. At that point, the cloth over the shooter's face slipped, and Ellis recognized him as the defendant.

At approximately 1:16 a.m. on November 14, 1999, members of the Norwich police department responded to an alarm at the club. Upon entering the club, they observed Dubose and Ellis lying on the floor with apparent gunshot wounds. One of the officers also observed that Floyd, who was able to stand on his own, had been shot in the buttocks. Emergency medical personnel transported Dubose, Ellis and Floyd to William W. Backus Hospital in Norwich. Cluff, who had been shot in the arm during the incident, arrived at the hospital by other means of transportation. Dubose was declared dead at approximately 2:11 a.m.

Later on the day of the shooting, members of the Norwich police department, assisted by members of the state police eastern district major crime squad, recovered ten spent .40 caliber shell casings and eleven bullet fragments from the scene of the shooting. The Norwich police recovered two additional bullet fragments on November 16, 1999. All of the shell casings had been fired from the same .40 caliber Glock semiautomatic handgun.

Several months prior to the shooting, in September, 1999, Wilfred Pepin had reported the theft of several guns, including a .40 caliber Glock semiautomatic handgun, from his residence in Lisbon. After the shooting, the Norwich police department contacted Pepin and inquired if Pepin had retained possession of any casings that had been discharged from the Glock handgun. Pepin was able to find three casings that he thought may have been discharged from the gun and provided them to the police. Two of those casings matched the casings that had been recovered at the club.

On January 5, 2000, Adrianne Cook went to the Norwich police station and informed the police that the defendant was staying at her apartment at 29 Carpenter Street in Norwich and that he had refused to leave. The police went to the apartment and arrested the defendant for criminal trespassing. They also seized a black duffle bag from the room in which the defendant had been staying. The duffle bag contained a number of guns and gun paraphernalia that had been stolen from Pepin. Several of the items, including a gun case, a magazine clip, two screws, an Allen wrench and spare magazine holders, were linked to Pepin's .40 caliber Glock handgun, but the gun itself never was recovered.

Thereafter, the defendant was arrested and charged with the murder of Dubose by use of a firearm, the attempted murder of Ellis, three counts of assault in the first degree as to Ellis, Floyd and Cluff, and carrying a pistol without a permit. His first two jury trials ended in mistrials when the juries were unable to reach a unanimous verdict. After a third trial, the jury found the defendant guilty of the lesser included offense of manslaughter in the first degree with a firearm, three counts of assault in the first degree and carrying a pistol without a permit. The jury found the defendant not guilty on the attempted murder charge. This appeal followed.

On appeal, the defendant claims that the trial court improperly denied his motion to suppress the evidence seized from Cook's apartment on January 5, 2000, on the ground that, because he had no reasonable expectation of privacy in the searched premises, he had no right to challenge the legality of the search. Specifically he claims that he had standing to seek to suppress the fruits of the search under article first, § 7, of the state constitution. He further contends that there was insufficient evidence to support a finding of guilt beyond a reasonable doubt on the charges of which he had been convicted and that the trial court improperly charged the jury on reasonable doubt. We reject each of the defendant's claims.

I

We first address the defendant's claim that the trial court improperly concluded that the defendant did not have standing under article first, § 7, of the state constitution to challenge the legality of the police search of Cook's apartment. In support of his claim, he contends that article first, § 7, of the state constitution affords greater protection than the fourth amendment to the federal constitution,⁷ under which a defendant may challenge the legality of a search only if he had a reasonable expectation of privacy in the area or subject of the search. See, e.g., Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In particular, the defendant maintains that, under our state constitution, he had automatic standing to seek to suppress the seized evidence because he had a "participatory" interest in the black duffle bag. He further claims that he had standing to challenge the legality of the search under the state constitution because he was legitimately on the premises searched or, alternatively, because he was charged with an offense of which possession of the seized evidence is an element. We conclude that the state constitution does not embody any of these rules of standing.

The following additional facts and procedural history are relevant to this claim. Before his first trial, the defendant filed a motion to suppress the handguns seized by the Norwich police department at Cook's apartment on January 5, 2000. The defendant claimed that the evidence should be suppressed because, although the police had a warrant to search the duffle bag, "[t]he probable cause established in the warrant affidavit . . . was based exclusively on the warrantless search and seizure of [the duffle] bag by the police before applying for the warrant."

The trial court held a hearing on the defendant's motion to suppress at which the following evidence was presented. During their investigation into the shooting, Norwich police officers identified the defendant as a possible suspect. On January 5, 2000, Cook's mother⁸ and grandfather Richard Woodly, called Cook and told her that the police were looking for the defendant and wanted to speak to her. The defendant, who was a first cousin of Cook's half-brother and half-sister and had known Cook...