State v. Harris, 3855

• Decision Date: 17 March 1987
• Docket Number: No. 3855,3855
• Citation: 522 A.2d 323,10 Conn.App. 217
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Emmett HARRIS.

Page 323

522 A.2d 323

10 Conn.App. 217

STATE of Connecticut v. Emmett HARRIS.

No. 3855.

Appellate Court of Connecticut.

Argued Dec. 9, 1986.

Decided March 17, 1987.

Kenneth Rosenthal, Assistant Public Defender, with whom, on the brief, was Donald D. Dakers, Public Defender, for appellant (defendant).

Robert J. Murphy, Sp. Deputy Asst. State's Attorney, with whom, on the brief, were Arnold Markle, State's Atty., and Julia DiCocco Dewey and Robert Devlin, Asst. State's Attys., for appellee (state).

Before HULL, DALY and BIELUCH, JJ.

HULL, Judge.

After a trial to a jury, the defendant was convicted of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-70(a) and 53a-49(a)(2), and unlawful restraint in the first degree in violation of General Statutes § 53a-95. The defendant appeals from the judgment rendered thereafter, claiming that the trial court erred (1) in admitting into evidence photographs of the scene of the crime, (2) in admitting hearsay evidence unnecessarily prejudicial to the defendant, (3) in permitting the state to present evidence of the defendant's prior convictions for assault and larceny, (4) in precluding the defendant from introducing evidence of a criminal charge pending against the complainant, (5) in permitting the state to introduce and read to the jury the complainant's entire written statement to the police, and (6) in denying the defendant's motion to suppress evidence seized from the scene of the crime.

The jury could reasonably have found the following facts. On the afternoon of March 29, 1984, the complainant and the defendant, who knew each other from their mutual place of employment, accidentally met at the Chapel Square Mall in New Haven. After conversing with the defendant for approximately fifteen minutes, the complainant requested that he give her a ride to another location. On the way, the defendant stopped his car at a Hazel Street residence and invited the complainant inside. He led her to a bedroom located on the left side of the first floor hallway. After a brief conversation, the defendant indicated that he wanted to have sex. The complainant refused. The defendant then pushed the complainant down on the bed, tore her sweater, and attempted to remove her pants. When the complainant resisted, the defendant choked and punched her, leaving bruises along her neck and collar bone area. An unidentified man subsequently came to the bedroom door and requested that the defendant come out. Both the defendant and the complainant left the bedroom. The two struggled in the hallway for a brief time before one or two unidentified males restrained the defendant. The complainant was then able to run from the home.

The complainant ran to a nearby bar and called the police. An officer arrived approximately ten minutes later. After being joined by a police detective, the complainant led the officer and the detective to the Hazel Street residence. ¹ When they arrived, only Kevin Harris, the brother of the defendant, was at the residence. The police searched the house, but did not enter the bedroom in question.

The officers then obtained a written consent from Kevin Harris to search the bedroom. The officers recovered personal effects of the complainant, including her pocketbook, eyeglasses, cigarette lighter and earrings, which were scattered around the room. The detective then called the New Haven police department's bureau of identification to photograph the bedroom. While at the premises, the complainant identified a photograph of the defendant as that of the individual who attempted to rape her. The defendant was subsequently arrested when he went to the police station to arrange bail for his brother, who had been arrested on unrelated charges.

Prior to trial, the defendant moved to suppress the introduction of a photograph of the bedroom which revealed wall posters of "scantily-clad" women. That motion was denied without written opinion. A motion to suppress the physical evidence seized from the bedroom was also denied.

At trial, the photograph from which the complainant identified the defendant was introduced into evidence. The state was also permitted to introduce a signed statement, made by the complainant, recounting the details of the crime. Over the objection of the defendant, the court admitted the statement on the basis of the doctrine of constancy of accusation and as a prior consistent statement.

The defendant called a number of character witnesses to testify on his behalf. These included the defendant's girlfriend, Eva Bell. On cross-examination, the state was permitted to question this witness as to the defendant's prior convictions for assault and larceny. Over the defendant's objection, the testimony was permitted as character evidence.

At the conclusion of his case, the defendant attempted to introduce a copy of court records showing that there was a criminal charge pending against the complainant. The court sustained the state's objection to the introduction of this evidence.

I

Because of our decision with respect to the defendant's last claim of error, we will consider that issue first.

The defendant claims that the trial court erred in denying his motion to suppress tangible evidence seized from the crime scene pursuant to a warrantless search. We agree.

The facts related to this claim are as follows. After the victim met the police officer and detective at a nearby bar, the three went to the Hazel Street residence. The individual who opened the door, and was later discovered to be Kevin Harris, refused to identify himself. The detective briefly searched all the rooms on the first floor except the bedroom where the incident took place. The detective then questioned Kevin Harris, who stated that he owned the residence. The detective then asked for and obtained Kevin Harris' written consent to search the first floor bedroom. Kevin Harris opened the bedroom door and the detective was able to observe the complainant's pocketbook, eyeglasses and jewelry. The detective did not enter the room at that time, but called the New Haven police department bureau of identification to search the room. The room was subsequently searched and a number of items were seized.

The defendant argues that the tangible evidence should have been suppressed because the investigating officers failed to obtain the defendant's consent to search the bedroom, and because the warrantless search was not justified by any exigency. The state asserts that the trial court properly denied the defendant's motion to suppress because the defendant failed to assert a subjective expectation of privacy in the bedroom, and because the investigating officers lawfully obtained access to the scene of the crime under the "hot pursuit" and "consent" exceptions to the warrant requirement.

One of the most fundamental propositions of our criminal jurisprudence is that " 'searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.' " (Emphasis in original.) Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564, reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971).

As the state points out, however, before a "search and seizure" are said to be subject to the protection of the fourth amendment, a two-fold requirement must be met. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). The first question is whether the person who is the focus of the inquiry has "exhibited an actual (subjective) expectation of privacy and, second ... [whether] the expectation be one that society is prepared to recognize as 'reasonable.' " Katz v. United States, supra at 361, 88 S.Ct. at 516-17; State v. Zindros, 189 Conn. 228, 238-39, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1014, 79 L.Ed.2d 244 (1984).

The burden of proof as to whether the defendant had a reasonable expectation of privacy is on the defendant. Rawlings v. Kentucky, 448 U.S. 98, 104-105, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980); State v. Brown, 198 Conn. 348, 356, 503 A.2d 566 (1986). While we appreciate the state's assertion that the defendant did not clearly establish a subjective expectation of privacy in that he did not testify at the suppression hearing, we conclude that the defendant presumptively had an actual and legitimate expectation of privacy in what the state conceded was the defendant's bedroom. See United States v. Arboleda, 633 F.2d 985, 992 (2d Cir.1980); State v. Brown, supra, 198 Conn. at 357, 503 A.2d 566; State v. Benton, 10 Conn.App. 7, 10, 521 A.2d 204, 521 A.2d 204 (1987). There was testimony at the suppression hearing that Kevin Harris resided on the second floor of the Hazel Street residence, not the first floor, where the defendant's bedroom was located. Kevin Harris testified at the hearing that the bedroom in question was exclusively under the control of the defendant. We conclude that, despite the defendant's refusal to testify at the suppression hearing, it was established that he had an actual, subjective expectation of privacy in the room, and that the expectation was clearly a reasonable one.

"Two recognized exceptions to the warrant requirement are where searches have been undertaken pursuant to (1) 'exigent circumstances'; see, e.g., Mincey v. Arizona, 437 U.S. 385, 392-94, 98 S.Ct. 2408, [3413-14], 57 L.Ed.2d 290 (1978); Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868 [1882], 20 L.Ed.2d 889 (1968); State v. Runkles, 174 Conn. 405, 412, 389 A.2d 730, cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 168 (1978); and (2) consent. See, e.g., David v. United States, 328 U.S. 582, 593-94, 66 S.Ct. 1256 [1261-62], 90 L.Ed. 1453, reh. denied, 329 U.S. 824, 67 S.Ct. 107, 91 L.Ed. 700 (1946); ...