State v. Hill

• Citation: 237 Conn. 81,675 A.2d 866
• Decision Date: 21 May 1996
• Docket Number: No. 15011,15011
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Maxime HILL.

Page 866

675 A.2d 866

237 Conn. 81

STATE of Connecticut v. Maxime HILL.

No. 15011.

Supreme Court of Connecticut.

Argued Dec. 6, 1995.

Decided May 21, 1996.

Jon L. Schoenhorn, Hartford, with whom, on the brief, was Beth J. Rittenband, South Windsor, for appellant (defendant).

Mitchell S. Brody, Assistant State's Attorney, with whom, on the brief, were John A. Connelly, State's Attorney, and Maureen Keegan, Assistant State's Attorney, for appellee (state).

Before PETERS, C.J., and CALLAHAN, BERDON, NORCOTT and PALMER, JJ.

PALMER, Associate Justice.

A jury found the defendant, Maxime Hill, guilty of possession of more than one-half gram of crack cocaine with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(a) and possession of heroin with the intent to sell in violation of General Statutes § 21a-277(a). ¹ The defendant has appealed ² from the judgment of the trial court sentencing him to an effective term of imprisonment of thirteen years. ³ On appeal, he claims that: (1) the trial court improperly failed to suppress certain narcotics seized by the police in violation of his constitutional rights; (2) he was convicted and sentenced on the two separate narcotics offenses in violation of the constitutional prohibition against double jeopardy; and (3) the evidence adduced at trial was insufficient to establish that he intended to sell crack cocaine and heroin. We affirm the judgment of the trial court.

A jury reasonably could have found the following facts. On September 16, 1992, Sergeant Michael Ricci of the Waterbury police department was patrolling the north end of the city in a marked police cruiser. In the late morning, Ricci, who was alone in the vehicle, observed two men, the defendant and an unidentified male, engaged in conversation on the sidewalk opposite Ricci's cruiser, about 100 feet away, in front of 33 Irion Street. The unidentified male, who was facing in Ricci's direction, saw the cruiser approaching and hurriedly walked away, disappearing from Ricci's view into an adjacent alleyway. The defendant, who had been standing with his back to the cruiser, turned around and, upon observing the police vehicle, walked quickly toward the entrance to the first floor apartment at 33 Irion Street. Ricci, now about fifty feet away from the defendant, saw that he was holding a plastic "sandwich-type" baggie.

Ricci pulled his cruiser over to the opposite side of the road and parked it, against the traffic, in front of 33 Irion Street. As Ricci was exiting his vehicle, he observed the defendant enter the 33 Irion Street apartment and toss the plastic baggie to his right, just inside the doorway of the apartment. Ricci followed the defendant through the open doorway, observed the baggie on a couch located immediately to his right, and proceeded to the rear of the apartment, where he apprehended the defendant and detained him. Moments thereafter, a second police officer arrived at the apartment to assist Ricci, who then retrieved the baggie from the couch. A search of the baggie's contents revealed forty-four pink "zip-lock" bags, each containing a white, rock-like substance subsequently determined to be crack cocaine, ⁴ three small glassine packets, each containing a white powder subsequently determined to be heroin, ⁵ and several empty zip-lock bags. The defendant was then placed under arrest and transported to the police station. Additional facts will be set forth as they become relevant.

Prior to trial, the defendant moved to suppress the narcotics seized by the police at 33 Irion Street on the ground that the evidence had been obtained in violation of his rights under the federal and state constitutions. After an evidentiary hearing, the trial court denied the defendant's motion and the narcotics evidence was introduced by the state in its case-in-chief. At the conclusion of the trial, the jury found the defendant guilty as charged.

I

At the suppression hearing, the defendant claimed that he was illegally seized by Ricci while he was standing in front of 33 Irion Street because Ricci did not have a sufficient basis to detain him at that time as required under article first, §§ 7 and 9, of the Connecticut constitution. ⁶ The defendant further claimed that Ricci's warrantless entry into the 33 Irion Street apartment violated his rights under the fourth amendment to the United States constitution ⁷ and under article first, §§ 7 and 9, of the Connecticut constitution. ⁸ The defendant maintained that each of these allegedly illegal actions provided a separate and independent basis for the suppression of the narcotics evidence confiscated by the police from the 33 Irion Street apartment. The trial court disagreed, concluding, as to the first claim, that the defendant had not been seized by the police until he was detained by Ricci inside the apartment and, as to the second claim, that the defendant did not have standing to challenge the warrantless police entry into the apartment. On appeal, the defendant contends that the trial court's conclusions are not supported by the evidence and, accordingly, that the court's denial of his motion to suppress was improper. We disagree with the defendant.

A

The defendant first claims that the trial court improperly concluded that he was not seized within the meaning of article first, §§ 7 and 9, of the state constitution when Ricci approached him in the police cruiser while he was standing on the sidewalk in front of 33 Irion Street. ⁹ The defendant further maintains that all evidence obtained by the police subsequent thereto must be suppressed as the fruit of the illegal detention. We are not persuaded that the defendant was seized while he was on the sidewalk.

We have recently articulated the test for determining whether a person has been seized for purposes of the Connecticut constitution: "[A] person [is defined] as 'seized' under our state constitution when by means of physical force or a show of authority, his freedom of movement is restrained.... In determining whether a seizure has occurred, so as to invoke the protections of our state constitution ... a court is to consider whether in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.... Whether there has been such a seizure in an individual case is a question of fact." (Citations omitted; internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 647, 613 A.2d 1300 (1992). ¹⁰ Furthermore, "[t]he trial court's determination [of whether a seizure occurred] will not be overturned unless it was clearly erroneous.... When a factual issue implicates a constitutional claim, however, we review the record carefully to ensure that its determination was supported by substantial evidence." (Citation omitted.) State v. Greenfield, 228 Conn. 62, 68-69, 634 A.2d 879 (1993).

After a thorough review of the record, we conclude that the trial court's determination that the defendant was not seized until after he had entered the apartment at 33 Irion Street is amply supported by the evidence. ¹¹ As the trial court expressly found, ¹² Ricci's actions outside 33 Irion Street were limited to pulling up to the curb on the wrong side of the street and exiting his vehicle. ¹³ Although Ricci was in uniform and operating a marked police vehicle, Ricci testified that he never turned on his emergency lights, headlights, loudspeaker or siren, that he did not order the defendant to stop or otherwise attempt to communicate with the defendant in any way, and that he did not display a weapon. Thus, the evidence established that Ricci did not confront the defendant or engage in any other conduct that reasonably could have caused the defendant to believe that he was required to remain on the sidewalk in front of 33 Irion Street as Ricci's cruiser approached.

The defendant nevertheless contends that he was seized outside 33 Irion Street when Ricci "drove towards him on the wrong side of the road at a rapid speed and then exited the vehicle." Even if such conduct by the police could constitute a show of authority sufficient to cause a reasonable person to believe that he or she was not free to leave, the trial court was not bound to agree with the defendant's characterization of Ricci's conduct. Although Ricci stated that only a few seconds had elapsed from the moment he first saw the defendant until he exited his police vehicle, ¹⁴ he also testified that he traveled only about 100 feet in that brief period. Because Ricci's testimony is entirely consistent with the conclusion that he was traveling at a slow or moderate rate of speed, ¹⁵ the trial court was not required to conclude, contrary to the defendant's claim, that Ricci had proceeded on Irion Street toward the defendant at a high rate of speed.

Moreover, the defendant adduced no evidence to establish that he saw Ricci exit the police cruiser. In fact, Ricci's uncontradicted testimony suggests quite the opposite: according to Ricci, he observed the defendant enter the 33 Irion Street apartment and toss aside the plastic baggie before Ricci had opened the door to his cruiser. In the absence of proof that the defendant was aware that Ricci had exited his vehicle, the fact that Ricci did so provides no support for the defendant's claim that "a reasonable person in the defendant's position would have believed that he was not free to leave." State v. Oquendo, supra, 223 Conn. at 653, 613 A.2d 1300.

The only evidence that arguably supports the defendant's claim is Ricci's testimony that he drove down Irion Street in the direction of the defendant and parked on the wrong side of the street. We are unable to conclude, based solely upon those facts, that a person in the defendant's position reasonably would have concluded that he was required to remain on the sidewalk in front of 33 Irion Street. The mere approach by a police officer, either...