State v. Duntz, 13990
| Decision Date | 28 July 1992 |
| Docket Number | No. 13990,13990 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Richard DUNTZ. |
Denise Dishongh, Sp. Public Defender, with whom was Louis S. Avitabile, Sp. Public Defender, for appellant (defendant).
Harry Weller, Asst. State's Atty., with whom, on the brief, were Frank S. Maco, State's Atty., and David Shepack, Asst. State's Atty., for appellee (State).
Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.
The dispositive issue in this appeal is whether three searches of the defendant's apartment and van were constitutionally reasonable pursuant to article first, § 7, of the Connecticut constitution. Following a trial, the defendant, Richard Duntz, was convicted by a jury of the crime of murder in violation of General Statutes § 53a-54a (a) 1 in connection with the killing of Earl E. Morey II. He was, thereafter, sentenced to a term of imprisonment of sixty years. He has appealed his conviction to this court pursuant to General Statutes § 51-199(b). We reverse the judgment of the trial court and remand the case for a new trial.
The jury could reasonably have found the following facts. At approximately 7 a.m. on October 23, 1986, the victim's body was found near Long Pond in Salisbury. Investigation revealed that the victim had been shot three times in the back of the head with a nine millimeter pistol earlier that morning. Prior to his death, the victim had been found guilty of committing an arson in connection with the burning of the Salisbury town hall. In the course of a state police investigation of that crime, the victim had informed the police that the defendant's brother, Roy Duntz, had participated with him in the arson. The victim had been scheduled for sentencing for the arson offense on October 24, 1986, the day following his death.
During the initial phase of the defendant's murder trial, the state offered a significant amount of circumstantial physical evidence that tended to link the defendant to the victim's death. The state introduced into evidence a newspaper, found in the defendant's bedroom several days after the victim's death, that contained a front page article regarding the victim's conviction of the town hall arson. Additionally, the state introduced evidence that the victim's killer had left a hexagonal sneaker tread print at the murder scene and that the impression matched the tread design of a pair of Foot Joy sneakers that the defendant had possessed shortly before the crime. The state also produced evidence that fibers, microscopically similar to those in the carpet of the defendant's van, had been discovered on the victim's shoes. Regarding the murder weapon, the state introduced evidence that the victim had been killed with a nine millimeter Smith and Wesson pistol. It also offered proof that the defendant had possessed a pistol cleaning kit that could have been used to clean such a weapon, and that he had possessed a spandex belt that bore an impression of a nine millimeter Smith and Wesson pistol.
As the trial progressed, it became clear through the defendant's cross-examination of witnesses that one of his theories of defense was that his brother Roy had killed the victim to prevent the victim from further implicating Roy in the town hall arson. Midway through the presentation of the state's case, both Roy and another brother, Ronald Duntz, decided to testify against the defendant because they believed that the defendant was unfairly attempting to shift the culpability for the murder to Roy. Although neither Roy nor Ronald had implicated the defendant in the victim's murder prior to trial, at trial both brothers testified that the defendant had admitted to them that he had killed the victim. Roy and Ronald also provided an account of the events of October 22 and 23, 1986, that was indicative of the defendant's guilt.
On the other hand, the defendant in his testimony declared that he had not killed the victim and placed the blame on Roy. The defendant testified that his brother Roy had been afraid that the victim would testify against him regarding the town hall fire. The defendant further testified that, on the night of the victim's death, he had been present at Roy's home when he observed Roy and the victim leave together. The defendant testified that later that evening Roy had returned home alone and had said that he had killed the victim. Apparently crediting that evening Roy's testimony instead of that of the defendant, the jury found the defendant guilty of the victim's murder.
On appeal, the defendant claims that the trial court improperly: (1) failed to suppress evidence that the state had seized in violation of article first, § 7, of the Connecticut constitution; (2) limited the jury's consideration of several prior statements to impeachment, rather than substantive, purposes; (3) admitted irrelevant and prejudicial evidence that the victim had feared the defendant; (4) allowed the state to commit prosecutorial misconduct by commenting upon matters not in evidence and violating the defendant's attorney-client privilege; (5) barred the introduction of evidence indicating that a defense witness had been administered and had passed a polygraph examination; (6) broadened the charging document by allowing the state to prove a motive for the crime other than that set forth in the information; and (7) admitted evidence of uncharged misconduct.
The defendant first claims that the trial court improperly failed to suppress evidence that the state had obtained in violation of article first, § 7, of the Connecticut constitution. 2 As a result, he asserts that he is entitled to a new trial. We agree.
On October 24, 1986, members of the state police submitted an application for a search warrant and an attached affidavit to a judge of the Superior Court. The affidavit stated that, on the morning of October 23, 1986, the victim had been found dead as a result of multiple nine millimeter bullet wounds to his head, and that the state medical examiner had concluded that his death was a homicide. In their affidavit, the state police set forth information that they believed constituted probable cause to believe that the defendant had committed the homicide, and they requested authorization to search his apartment and van for specified evidence.
On October 24, 1986, the warrant application was approved and the search warrant was signed by the judge. The following day, the state police entered and searched the defendant's apartment and van. As a result of that search, the police observed and photographed hexagonal footwear impressions that were discovered in the dust inside the defendant's van. These impressions were similar to a sneaker impression that had been observed at the crime scene, near the victim's body. During their search, the police also photographed a pistol and revolver cleaning kit that could have been used to clean a nine millimeter pistol. Additionally, the police noticed a newspaper on the defendant's nightstand that contained an article about the victim's involvement in the town hall arson. Although the affidavit stated that a witness had informed the police that the defendant had been wearing blue sweat pants and a grey sweat shirt on the night of the offense, the police failed to discover any clothing matching that description. The police also failed to discover any footwear with a hexagonal tread pattern consistent with the impression discovered near the victim's body, and they also failed to discover a nine millimeter pistol.
Later that day, as a result of information gained in the initial search, the police applied for a second search warrant to authorize another search of the defendant's van. A Superior Court judge signed the second warrant and, on October 26, 1986, the police again searched the van. In the course of the second search, the police seized, inter alia, a sample of the van's carpet. The police also took additional photographs of the footwear impressions in the rear of the defendant's van. Additionally, using a lifting technique, the police physically removed and preserved the footwear impressions that had been discovered in the dust in the van.
Largely upon the basis of the evidence seized in the course of the searches conducted on October 25 and 26, 1986, the state police obtained a third search warrant authorizing a further inspection of the defendant's apartment. On December 2, 1986, the police executed that warrant. As a result, the police photographed two newspapers containing articles concerning the victim and his involvement in the town hall fire. The police also photographed and seized a spandex belt that bore the imprint of a nine millimeter Smith and Wesson pistol. Additionally, the police seized a pistol and revolver cleaning kit similar to the one that had been photographed in the course of the October 25, 1986 search. Having determined that the footwear impressions at the crime scene and in the defendant's van were made by Foot Joy brand sneakers, the police also seized numerous photographs and photographic negatives depicting the defendant wearing Foot Joy sneakers.
Prior to trial, the defendant moved to suppress all of the evidence that had been obtained as a result of the searches of his apartment and van on October 25, October 26, and December 2, 1986. The defendant contended that the original affidavit contained insufficient information to establish probable cause to support the authorization of the October 25, 1986 search, and that the subsequent warrants that had been issued were based upon tainted information acquired in the original illegal search. Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963).
Prior to the introduction of any evidence at trial, the court held a suppression hearing. Following...
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