State v. Gallagher
| Decision Date | 16 April 1982 |
| Docket Number | 1058,Nos. 1057,s. 1057 |
| Citation | 38 Conn.Supp. 364,447 A.2d 1175 |
| Court | Connecticut Superior Court |
| Parties | STATE of Connecticut v. Richard E. GALLAGHER. STATE of Connecticut v. Carol A. GALLAGHER. |
William J. Curran, Bridgeport, for appellants (defendants).
Carl Schuman, Asst. State's Atty., for appellee (State).
A jury convicted the defendants of interfering with an officer in violation of General Statutes § 53a-167a, in connection with a neighborhood dispute in Milford. The defendants have each appealed from the judgment rendered thereon. 1
The jury could reasonably have found the following facts: At approximately 11 a. m. on December 28, 1979, the complainant, who is a neighbor of the defendants, was in her garage when she noticed the defendant husband, Richard E. Gallagher, who was some 75 to 100 feet away, looking at her. The defendant husband thereafter moved toward his front porch, stopped, turned around and directed an abusive statement toward the complainant. 2 The complainant immediately summoned the police. Officer Michael Hanlon responded to the call and conversed with the complainant for a short period of time. Although Hanlon took no written statement from the complainant, he requested backup assistance for a possible arrest.
Three police cruisers subsequently arrived on the scene and Hanlon proceeded to knock on the defendants' door. The defendant wife, Carol A. Gallagher, admitted Hanlon into the defendants' residence after he had explained to her that he was investigating a neighborhood dispute. When inside, Hanlon indicated that he was investigating a neighbor's complaint concerning the defendant husband. After questioning the defendant husband, the officer, without a warrant or written complaint, reached over, placed his hand on the defendant husband's shirt and placed him under arrest for breach of the peace. In response, the defendant husband raised his fists and lunged at Hanlon, while the defendant wife jumped on his arm, bringing him to his knees. Officer Osborn assisted in subduing the two defendants.
The defendants here appeal from their convictions on the charges of interfering with an officer and raise the following claims of error: (1) the court's failure to find that their warrantless arrest within their home violated their constitutional rights under the fourth and fourteenth amendments to the constitution of the United States; (2) the court's refusal to grant their requests to charge; (3) the court's denial of their motions for a new trial; and (4) the court's denial of their motions for acquittal.
The defendants contend that their warrantless arrest on a misdemeanor charge, effectuated in their home, violated their rights under the fourth and fourteenth amendments to the federal constitution. In support for this contention, they cite Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1374, 63 L.Ed.2d 639 (1980), in which the United States Supreme Court held that the fourth amendment, as applied to the states through the fourteenth amendment, prohibits police officers from making warrantless and nonconsensual entries into the home of a suspect for purposes of a routine felony arrest. The defendants also cite our decision in State v. Anonymous (1977-5), 34 Conn.Sup. 531, 375 A.2d 417 (1977).
Both Payton and Anonymous involved warrantless, forcible entries by the police into the homes of suspects. The defendants here have failed to establish that the entry by police in this instance was either forcible or nonconsensual; in fact, both defendants concede in their briefs that officer Hanlon "was invited in [to the residence] by the defendant's wife Carol Gallagher." Accordingly, we find that neither Payton nor Anonymous is relevant to the factual circumstances now before us and that no constitutional precept was violated.
Having gained entry with the consent of the defendant wife, Hanlon's conduct was governed by the provisions of General Statutes § 54-1f(a), which provides: "Peace officers ... in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others." We have previously construed this portion of the statute to impose the speedy information condition in arrests for both felonies and misdemeanors, in derogation of the common law rule that information forming the basis of a felony arrest need not be received soon after the commission of the crime. State v. Anonymous (1977-5), supra, 538, 375 A.2d 417. While at common law an officer could make a warrantless arrest for certain misdemeanors committed only in his presence, § 54-1f(a) extended that right to cases where the arrest is made on the speedy information of others. Sims v. Smith, 115 Conn. 279, 282, 161 A. 239 (1932).
Where, as here, the arrest took place approximately twenty minutes after the occurrence of the disputed incident, 3 it cannot be otherwise but that the officer acted on the speedy information of another. We conclude that the officer's entry onto the premises was lawful and in compliance with § 54-1f(a).
The defendants also aver that the trial court wrongfully refused to read to the jury their proposed requests to charge. As a rule, error in a refusal to charge occurs only where the court has not fairly covered the particular point raised and where the proffered request is both pertinent to the claims of proof and correct in law. State v. Vennard, 159 Conn. 385, 399, 270 A.2d 837 (1970); see State v. Tinsley, 181 Conn. 388, 394, 435 A.2d 1002 (1980) cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981).
The first of the two proposed requests to charge purported to instruct the jury concerning the speedy information statute, § 54-1f(a). 4 This suggested instruction, however, was both incomplete and inadequate because it failed to enlighten the jury that the arresting officer must be authorized to make an arrest on the speedy information of others. The trial court correctly refused to charge the jury as the defendants requested, for the proposed charge was incorrect as a matter of law.
In the second proposed instruction, 5 the defendants attempted to inject portions of the charge given to the jury in State v. Anonymous (1977-5), supra, 34 Conn.Sup. 546-47, 375 A.2d 417. As we have previously concluded, however, State v. Anonymous (1977-5) is inapposite where, as here, the challenged entry is consensual and not forcible.
Finally, the defendants contend that the trial court erroneously charged the jury concerning General Statutes § 53a-23, which provides that "[a] person is not justified in using physical force to resist an arrest by a reasonably identifiable peace officer, whether such arrest is legal or illegal." We are not bound to consider this claimed error, however, because the defendants did not except to the charge as read to the jury. 6 Practice Book § 854. Where there are no objections to a charge, we must presume that it is correct. Holden & Daly, Connecticut Evidence § 36. Moreover, the defendants have not briefed this issue and we consider it abandoned. State v. Daniels, 180 Conn. 101, 104, 429 A.2d 813 (1980); State v. Roberson, 173 Conn. 97, 98, 376 A.2d 1089 (1977). Accordingly, we find no error in the trial court's failure to charge as requested by the defendants.
The defendants filed motions for a new trial claiming that the state had not produced sufficient evidence to prove that they had the requisite intent to interfere with an officer. Practice Book § 902 provides that a defendant may receive a new trial "if it is required in the...
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State v. Gallagher
...the defendants appealed to the Appellate Session of the Superior Court. The Appellate Session found no error; State v. Gallagher, 38 Conn.Sup. 364, 447 A.2d 1175 (1982); and we granted The jury reasonably might have found the following facts. The defendants, who are husband and wife, had li......