State v. Guess
| Decision Date | 27 October 1995 |
| Docket Number | No. 13321,13321 |
| Citation | 39 Conn.App. 224,665 A.2d 126 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Kevin GUESS. |
Donald J. Bowers, Milford, with whom, on the brief, was Sandra P. Lax, Bridgeport, for the appellant (defendant).
John A. East III, Deputy Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Cecilia Wiederhold, Assistant State's Attorney, for the appellee (state).
Before O'CONNELL, HEIMAN and SPEAR, JJ.
The genesis of this case is a substitute information charging the defendant with murder in violation of General Statutes §§ 53a-54a and 53a-8, conspiracy to commit murder in violation of General Statutes §§ 53a-48(a) and 53a-54a, criminal attempt to commit murder in violation of General Statutes §§ 53a-49(a)(2), 53a-8 and 53a-54a and carrying a pistol without a permit in violation of General Statutes §§ 29-28 and 29-35.
The jury returned a verdict of not guilty as to the charges of murder, conspiracy to commit murder and criminal attempt to commit murder, of guilty of what the court instructed were the lesser included offenses of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-8 and 53a-55a and conspiracy to commit manslaughter in the first degree with a firearm in violation of §§ 53a-48 and 53a-55a, and of guilty of the charged offense of carrying a pistol without a permit.
The trial court subsequently granted the defendant's motion for judgment of acquittal of the lesser included offense of conspiracy to commit manslaughter in the first degree with a firearm.
The defendant appeals from the conviction of the lesser included offense of manslaughter in the first degree with a firearm and carrying a pistol without a permit.
The defendant claims that the trial court improperly (1) denied his motion to suppress tangible evidence, (2) denied his motion to suppress the statement he gave to the police, (3) denied his motion to sever his joint trial, and (4) denied his postjudgment motion for judgment of acquittal of the lesser included offense of manslaughter in the first degree with a firearm because there was insufficient evidence to support the conviction. We affirm in part and reverse in part.
The jury could reasonably have found the following facts. Throughout the day on May 31, 1991, shooting erupted at the Quinnipiac Terrace housing project in New Haven as two rival gangs battled for control of the project's drug trade. While responding to a reported shooting at the project, investigating officers encountered sporadic gunfire. As police tried to defuse the situation, the defendant and a person later to be tried as the codefendant 1 concealed themselves behind a bush. One of the officers at the scene saw muzzle flashes from shots fired from behind the bush. One of these shots led to the death of Andre Moore, a member of one of the project's gangs.
Police recovered various 9mm and 10mm shell casings from behind the bush, including but not limited to Winchester brand 9mm casings. On June 5, 1991, police executed a search warrant for the defendant's apartment at 25 Donna Drive in New Haven. In the apartment, police found a Star 9mm semiautomatic pistol with live ammunition in the magazine, eight live rounds of ammunition, cash, records of drug transactions and a bullet-proof vest. After procuring a second warrant, police searched the basement storage bin at 25 Donna Drive and found the following: a 9mm semiautomatic firearm, three boxes of 9mm ammunition, 23,000 empty small plastic bags, and a quantity of cocaine. The defendant possessed neither state nor local permits to carry pistols or revolvers.
The fifteen Winchester shell casings found at the scene of the shooting had been ejected from the two weapons seized at the defendant's apartment. Moore was probably 2 killed by a Winchester brand bullet fired from one of the fifteen Winchester shell casings found at the scene.
On November 30, 1991, the defendant gave a statement to police in which he admitted firing four 9mm shots from behind a bush during the shootout, but denied that he directly aimed his pistol at anyone. The defendant explained that one other individual had been with him behind the bush, but he repeatedly refused to identify that person. The defendant further told police that the second individual had fired a weapon, but that he could not identify the type of weapon used, how many shots had been fired from it, or at whom the shots had been aimed. Additional facts are included in the analyses of individual claims.
The essence of the defendant's first claim is that the search warrant affidavit, based largely on facts supplied by confidential informants, did not support a conclusion of probable cause in violation of the fourth amendment of the United States constitution and article first, § 7, of the Connecticut constitution.
For a search warrant to issue, a neutral and detached judge must make an independent determination that the facts in the supporting affidavit constitute probable cause. State v. Delmonaco, 194 Conn. 331, 337, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). " 'Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction ... and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.' " State v. Vincent, 229 Conn. 164, 171, 640 A.2d 94 (1994), quoting State v. Weinberg, 215 Conn. 231, 238, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S.Ct. 430, 112 L.Ed.2d 413 (1990).
Under the fourth amendment to the federal constitution and article first, § 7, of our state constitution, the "totality of the circumstances" test is used to determine if there is probable cause to issue a search warrant that is based on the information of confidential informants. Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983); State v. Zarick, 227 Conn. 207, 222, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S.Ct. 637, 126 L.Ed.2d 595 (1993); State v. Barton, 219 Conn. 529, 544-45, 594 A.2d 917 (1991). When a search warrant affidavit is based on information provided to the police by a confidential informant, the magistrate must examine the affidavit to determine whether it adequately describes both the factual basis of the informant's knowledge and the basis for the belief that the information is reliable. Where the bases for crediting the source of the information are apparent, and when a magistrate has in fact found probable cause, the reviewing court will not invalidate a warrant by applying rigid analytical categories. State v. Barton, supra, at 544-45, 594 A.2d 917. Rather, we review an issuing judge's determination that probable cause existed by considering the information before the judge "at the time of the issuance of the warrant, together with the reasonable inferences drawn from such information, in the light most favorable to the issuing judge's determination of probable cause." State v. Zarick, supra, at 222, 630 A.2d 565; State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991).
The challenged affidavit in this case clearly provided a substantial factual basis from which the issuing judge could have reasonably inferred that 9mm guns were located in the defendant's apartment and that the defendant was himself connected to the shooting of Moore. Police drafted a thoroughly detailed search warrant based on the data supplied to them by two known The first informant telephoned the police each day with information relating to gang activity in the Quinnipiac Terrace projects. During the week of June 3, 1991, he informed the police that he had observed the defendant in possession of 9mm firearms at his residence, had personally observed the defendant storing various firearms at 126 Olive Street, and had been told by the defendant that Moore's death was a result of a shootout involving the defendant's gang.
confidential informants, each of whom had previously provided reliable, accurate information to the police.
The second informant, a gang member who had been working for the New Haven police department for more than six months, also provided information regarding the shooting death of Moore. That informant not only corroborated each piece of information supplied by the first informant, but also told police that he was present when the defendant admitted personal responsibility for the death of Moore.
In addition to relying on the tips supplied by the confidential informants, the officers also independently ascertained that both 9mm and 10mm shell casings were found at the scene of the shooting. They further consulted an agent of the federal Bureau of Alcohol Tobacco and Firearms to confirm that the types of weapons allegedly located at the defendant's apartment were capable of firing 9mm cartridges.
The trial court found that the reliability of each informant was amply demonstrated because each informant confirmed the information of the other, and because the remainder of the information was based on personal knowledge and police investigation. The warrant affidavit adequately described both the factual basis of the informants' knowledge and the basis on which the police concluded that the information was reliable. The trial court considered details provided by the confidential informants and the information yielded by independent police investigation.
We conclude that the trial court properly determined that the affidavit provided a substantial factual basis for its finding that there was probable cause to believe that the defendant was involved in Moore's shooting and that evidence of that crime was located at the defendant...
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