State v. Fleming

• Decision Date: 07 January 1986
• Citation: 198 Conn. 255,502 A.2d 886
• Parties: STATE of Connecticut v. Luther FLEMING.
• Court: Connecticut Supreme Court

Page 886

502 A.2d 886

198 Conn. 255

STATE of Connecticut v. Luther FLEMING.

Supreme Court of Connecticut.

Argued Nov. 7, 1985.

Decided Jan. 7, 1986.

Richard Emanuel, Special Public Defender, for appellant (defendant).

Jonathan C. Benedict, Asst. State's Atty., with whom, on brief, was Donald A. Browne, State's Atty., for appellee (state).

Before PETERS, C.J., and HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

PETERS, Chief Justice.

The principal issue on this appeal is whether the alleged illegality of the defendant's arrest compels dismissal of the charges against him. After a trial to a jury, the defendant, Luther Fleming, was convicted of felony murder, in violation of General Statutes § 53a-54c, ¹ and sentenced to a term of imprisonment of twenty-five years to life. He appeals from the judgment of this conviction.

The jury could reasonably have found the following facts. On the evening of June 10, 1980, the defendant and an associate, Alphonzie Perry, drove to the Star Package Store in Bridgeport with the intention of robbing it. Arriving shortly before the 8:00 p.m. closing time, the two men parked the car on the street near the liquor store. While Perry remained in the car, the defendant entered the store with a loaded gun. He robbed the proprietor at gunpoint and, during a struggle for the gun, shot him in the abdomen. The victim died a short time later. Both the defendant and Perry were later arrested for this crime and were tried separately. ²

On appeal from his conviction, the defendant raises three claims of error. He claims that: (1) his motion to dismiss the indictment should have been granted because the indictment stemmed from an illegal arrest; (2) his motions for mistrial should have been granted because information which came before the jury was so prejudicial that it deprived him of a fair trial; and (3) the trial court erred in instructing the jury both on the elements of felony murder and on accessorial liability. We find no error.

I

In his initial claim of error, the defendant claims that the trial court should have dismissed the indictment charging him with felony murder. This claim has two components: first, that his arrest was illegal because the probable cause which supported it was the product of a series of intertwining illegalities; and second, that, because this arrest was illegal, the subsequent prosecution which stemmed from it should have been barred.

At a pretrial hearing on the defendant's motion to dismiss, the testimony revealed the following facts. A day or two after the incident at the Star Package Store, the defendant voluntarily went to police headquarters to discuss another unrelated incident which he had witnessed. At that time, he initiated conversation with the police about the package store incident. Subsequently, on June 20, 1980, during the course of their investigation into the robbery and murder at the package store, the police brought the defendant to police headquarters and questioned him there. He was not then placed under arrest or informed of his Miranda ³ rights. In response to police questions, the defendant gave a statement exculpating himself but implicating Alphonzie Perry in the crime. Later that day, the police arrested Perry and confronted him with the defendant's accusatory statement. Perry responded by implicating the defendant. As a result of this statement, the police arrested the defendant.

The defendant argues that his initial statement to police, made in the absence of Miranda warnings, was a violation of his fifth amendment rights and that his subsequent arrest was a direct product of that illegality. Thus, the defendant claims, the arrest itself was illegal and the charges against him should have been dismissed. ⁴ Although the trial court granted a defense motion to suppress the defendant's statements, it denied the motion to dismiss, finding that the arrest was legal and based on probable cause. The defendant now asks us to reverse the trial court's ruling and to order the charges against him dismissed.

The legality of the defendant's conviction could be sustained either by upholding the trial court's findings about the legality of the defendant's arrest or by determining that illegality of an arrest does not per se invalidate a subsequent conviction. In order to put to rest the controversy that has long surrounded the rule of State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), we have decided to take the latter route in finding no error on this claim.

The relationship between an illegal arrest and a subsequent prosecution under federal constitutional law is well settled. In an unbroken line of cases dating back to 1886, the federal rule has been that an illegal arrest will not bar a subsequent prosecution or void a resulting conviction. United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975); United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510 (1966); Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 440, 7 S.Ct. 225, 227, 30 L.Ed. 421 (1886).

If the defendant's claim of necessary linkage between the legality of arrest and legality of prosecution is to be sustained, therefore, that claim must find its predicate in state law. Such a state-based claim arguably arises from State v. Licari, supra, where this court ordered dismissal of criminal charges because the defendant had been arrested under a bench warrant insufficient to satisfy the requirements of the fourth amendment to the United States constitution. Our holding, in Licari, that an illegal arrest deprives the court of jurisdiction over the defendant's person, was, however, expressly derived from a misunderstanding of the federal cases, and this fragility in the Licari jurisdictional underpinnings has repeatedly been noted. See State v. Heinz, 193 Conn. 612, 629, 480 A.2d 452 (1984); State v. Gallagher, 191 Conn. 433, 438, 465 A.2d 323 (1983); Borden & Jaffe, "The Trouble with Licari; Irony and Anomaly," 55 Conn.B.J. 463, 465-69 (1981). As an interpretation of federal law, Licari can no longer stand.

Acknowledging this weakness in the relevant precedents, the defendant does not base his appeal on the federal constitution. Instead, he argues that provisions of article first, §§ 7 and 8, of the Connecticut constitution affording protection from unreasonable searches and seizures and defining the rights of the accused in criminal prosecutions ⁵ create a broad rule invalidating any prosecution which arises from an illegal arrest. There is no question, of course, that this court has the authority to determine what meaning to attribute to provisions contained in the constitution of this state. In this process of interpretation, we will often look to federal precedents when they are analytically persuasive. We are, however, free, in appropriate circumstances, to follow a different route and thus to recognize that the Connecticut constitution may provide for the people of this state greater rights and liberties than they are afforded under the federal constitution. State v. Kimbro, 197 Conn. 219, 234-35, 496 A.2d 498 (1985); Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984); Michigan v. Long, 463 U.S. 1032, 1038-39, 103 S.Ct. 3469, 3474-75, 77 L.Ed.2d 1201 (1983); see Howard, "Introduction: A Frequent Recurrence to Fundamental Principles," in Developments in State Constitutional Law xi, xvii-xxiii (1985); Mosk, "State Constitutionalism after Warren: Avoiding the Potomac's Ebb and Flow," in Developments in State Constitutional Law, 201 (1985).

In support of the position that we should relocate and revalidate State v. Licari in the law of our state constitution, the defendant relies principally on our holding in State v. Federici, 179 Conn. 46, 425 A.2d 916 (1979). In that case, the defendant was illegally arrested without probable cause, and evidence obtained as a result of that arrest was admitted against him in his subsequent trial. We held that the use of the illegally obtained evidence had tainted his subsequent prosecution, compromising his right to a fair trial. Consequently, citing the same Connecticut constitutional provisions herein invoked, as well as article first, § 9, ⁶ we ordered dismissal of the charges against him. The defendant suggests that this holding militates toward a similar result in his case. We disagree.

The issue presented by the rule of Licari and the facts of this case are entirely distinguishable from the holding of Federici. Here, the defendant has failed to allege, much less to show, how his allegedly illegal arrest tainted his trial. No evidence obtained as a result of the defendant's arrest was used to obtain his conviction. Further, the defendant has never challenged, either at trial or on this appeal, the admissibility of Alphonzie Perry's testimony at trial. In short, unlike the trial in Federici, the fairness of the defendant's trial was in no way compromised by the circumstances of his arrest. Federici, therefore, fails to supply state constitutional support for the continued viability of the rule of Licari. See State v. Heinz, supra, 193 Conn. at 629, 480 A.2d 452.

The defendant has provided no other state constitutional basis for continuation of the rule of State v. Licari. Nothing in the language of the constitutional provisions themselves sheds any light on the proper relationship between an illegal arrest and a subsequent conviction. Nothing in the constitutional history of this state, so far as we know, illuminates the issue. Courts in other jurisdictions, in decisions that are persuasive even though they are not binding, have followed the federal rule. ⁷ We therefore conclude that an illegal arrest imposes no jurisdictional barrier to a defendant's subsequent prosecution and overrule State v....