State v. Guertin

• Decision Date: 21 June 1983
• Citation: 190 Conn. 440,461 A.2d 963
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Roland GUERTIN.

Page 963

461 A.2d 963

190 Conn. 440

STATE of Connecticut v. Roland GUERTIN.

Supreme Court of Connecticut.

Argued April 6, 1983.

Decided June 21, 1983.

[190 Conn. 441] Eugene J. Riccio, Asst. 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 SPEZIALE, C.J., and PETERS, PARSKEY, SHEA and GRILLO, JJ.

PARSKEY, Associate Justice.

The defendant was charged in two separate informations with the crimes of sexual assault in the first degree and burglary in the second degree in violation of General Statutes §§ 53a-70(a)(2) and 53a-102(a) respectively. After a trial to the jury the defendant was convicted of both crimes. From the judgment subsequently rendered the defendant has appealed.

Prior to trial, the defendant moved to dismiss the informations claiming that his warrantless arrest was without probable cause and that the manner of his arrest in his room was improper. Further, the defendant moved to suppress any identification testimony by the complainant on the ground that the pretrial identification procedure was unnecessarily suggestive. The defendant also moved to suppress those items seized from his person at the time of his arrest and from his room, pursuant to a warrant, seven days after the crime. He claimed that the arrest was illegal and that the information relied upon in the warrant was obtained by a violation of his constitutional rights against unreasonable search and seizure. After an evidentiary hearing, these motions were denied. In his appeal the defendant assigns error in these rulings.

I WARRANTLESS ARREST

The burglary and sexual assaults occurred in the early morning of December 6, 1979. The complainant had arrived at her apartment at 11 p.m. the night before from a Christian Science meeting and went to bed; however, before falling asleep, she heard loud footsteps on the porch outside her window and observed a man at that location. She alerted the apartment's doorman who was able to find nothing. She then retired for the night.

At about 1 a.m. the complainant awoke, having heard something that made her conscious of a form in her room. She called out to her roommate (who was not there), received no answer, and quickly sat up and turned on the floor lamp at the foot of her bed. At that, a form, obviously a man, raced across the room and knocked over the lamp, leaving the room in darkness except for light coming from a digital clock-radio located about eight feet from and facing toward the bed and whatever light may have emanated from a large window over the bed having transparent curtains and a venetian blind left about one-fourth up.

The intruder, subsequently identified as the defendant, remained in the room until leaving somewhere between 4:30 and 5 a.m. During this period the victim was subjected to repeated and varied sexual assaults committed under express and implied threats of violence. She was blindfolded with a scarf for between one-half and three-fourths of the time. For the remainder of the period she was able to observe the defendant's face from as close as two inches and, for approximately one-half hour of the nonblindfolded portion, talked with him while lying within inches of his face. She was able to make out the defendant's features very well, particularly once her eyes had adjusted to the darkness.

After the defendant's departure, the victim phoned the police and reported the sexual assault. Upon the arrival of the police at her apartment, she described her assailant as a caucasian male, five feet eight to five feet ten inches tall, having a very short, military-like haircut and a pig-type nose and wearing dark trousers and a dark shirt and shoes that made quite a bit of noise on the floor. She was unable to describe anything of the footwear other than that they made noise. She also stated that the rapist told her that he had been drinking scotch and had been arrogant to her in his mannerisms. At this point, Officer Lawrence Connors of the Greenwich Police Connors had his first contact with the defendant at about 9 p.m., December 5, at the Greenwich YMCA in regard to a disturbance complaint. Connors recalled the defendant as being approximately five feet ten inches tall, having very short hair, wearing brown boots, blue dungarees and a blue shirt. He recalled that the defendant stated that he had been drinking scotch. Connors also recalled that the defendant had a distinctive pig-type nose, that the boots made a lot of noise, and that the defendant had been very arrogant in manner.

                Department, one of the officers [190 Conn. 444] present, indicated that he thought he knew who it was.   Connors stated that he had picked up a man earlier that night who fit the victim's description;  who had mentioned that he had been drinking scotch and water;  and who lived at the Greenwich YMCA
                

When Connors heard the victim's description of her assailant he was immediately struck by the very short hair, the pig-type nose and the boots that made a lot of noise. He was also aware that the Greenwich YMCA was located only one hundred yards away from the victim's apartment and that the victim had further related that the rapist had left her apartment at 5 a.m. or shortly thereafter.

Because of the above information Connors came to suspect the defendant and sent an officer to the "Y" to check his whereabouts. The investigation there revealed that the defendant had returned at approximately 5:10 a.m. Connors and a fellow officer then proceeded to the YMCA, arriving there between 6:15 and 6:20 a.m.

Once at the YMCA, Connors with his partner, Officer William Carroll, and Sergeant Rocco Powell procured a passkey and went to the defendant's room, number 308. There they knocked on the door and the defendant answered almost immediately, asking, "Who is there?" Powell responded that it was the police and that they wanted to talk to him about an incident. The defendant answered that he was not dressed and would be a couple of minutes. Within fifteen seconds the officers heard a window being raised. The YMCA had old-fashioned windows with chains and sash weights that made a distinct sound when raised. The officers were familiar with the sound from previous investigations at the "Y."

The officers were also aware that immediately outside the window was a ledge twelve to eighteen inches wide that could provide access to either a fire escape or another room. The temperature outside at that time was below freezing. On hearing the window open, the officers made entry into the room with the passkey. The room was dark. By means of flashlights, they observed the defendant standing partially dressed in the center of the room approximately five to ten feet from the window and facing it. Connors observed fresh scratch marks on the defendant's lower back and also saw the clothing the defendant had been wearing earlier in the evening. He also saw two pairs of boots, one with wooden heels. There was also a partially consumed bottle of scotch on the table.

The fourth amendment to the constitution of the United States provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." A similar provision is contained in article first § 7 of the constitution of Connecticut. ¹ "It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100

                S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980).   Absent exigent circumstances the threshold of a person's home may not reasonably be crossed without a warrant.   Id., 590, 100 S.Ct. 1382;   State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980).   The defendant challenges his arrest without a warrant in this case because of the absence of probable cause and of exigent circumstances.   Although the arrest in this case occurred before  Payton v. New York, supra, was decided, because Payton has been held to apply to any convictions not finalized as of the decision's date;   United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 2594, 73 L.Ed.2d 202 (1982);  the defendant's challenge is properly before us
                

A

Probable Cause

To justify an arrest it must appear that the arresting officer had reasonable grounds to believe that a felony had been committed; State v. Hoffler, 174 Conn. 452, 460, 389 A.2d 1257 (1978); and that the person arrested committed it. General Statutes (Rev. to 1979) § 6-49; State v. Acquin, 187 Conn. 647, 656, 448 A.2d 163 (1983); State v. Cobuzzi, 161 Conn. 371, 376, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 677, 30 L.Ed.2d 664 (1972). The defendant does not question that a felony had been committed. There was also sufficient information pointing to the defendant as the probable felon. The victim's description of her assailant's features, especially his nose, his clothing and his noisy footwear, and the assailant's statement to her that he had been drinking scotch so closely matched the man that Connors had seen some eight hours earlier that he became an immediate suspect. The fact that he lived only 100 yards from the scene of the crime added another piece to the puzzle. The picture became even clearer when it was learned that the defendant had returned to the "Y" about five or ten minutes after the assailant was reported to have left the victim's apartment. Finally, when the defendant, with the knowledge that the police, who were at his door, wanted to question him about an incident, threw open the window in what could reasonably be regarded as an attempt to flee, the police had sufficient reason to believe that they had...