State v. Joyce

• Decision Date: 26 January 1993
• Docket Number: No. 9896,9896
• Citation: 619 A.2d 872,30 Conn.App. 164
• Parties: STATE of Connecticut v. Wallace JOYCE.
• Court: Connecticut Court of Appeals

Page 872

619 A.2d 872

30 Conn.App. 164

STATE of Connecticut v. Wallace JOYCE.

No. 9896.

Appellate Court of Connecticut.

Argued Sept. 14, 1992.

Decided Jan. 26, 1993.

Heiman, J., filed dissenting opinion.

John R. Williams, New Haven, for appellant (defendant).

James A. Killen, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Michael A. Pepper, Asst. State's Atty., for appellee (state).

Before DALY, EDWARD Y. O'CONNELL and HEIMAN, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of arson in the first degree in violation of General Statutes § 53a-111(a)(4). ¹ The defendant claims that (1) the trial court improperly denied his motion to suppress the results of a test performed on his clothing, (2) the trial court improperly refused to admit evidence implicating a third party as the perpetrator and (3) there was insufficient evidence to support his conviction. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. At approximately 4 p.m. on January 29, 1990, the defendant was severely burned in an explosion and fire at a house formerly owned by his father. ² A neighbor described a "whooshing sound" and an "orangey glow" in the house followed seconds later by the defendant in flames running out of the front door. The defendant then ran down an embankment and jumped into a nearby river. The neighbor observed that the defendant's face was "all burned," his pant leg was ripped open and his hands were so badly burned that they appeared as if "he almost had gloves on...." ³

The East Haven fire department arrived shortly thereafter and one of the firefighters, who was also a trained paramedic, observed the defendant standing waist deep in the river. The firefighter, Charles Licata, helped him out of the water and noticed that he had severe burns over a large portion of his body. ⁴ At the suppression hearing, Licata described the defendant's clothing as charred and "mostly burned off his body in all the areas where he had the third and second degree burns." Licata also remarked that the defendant's clothes were still smoldering and warm to the touch.

To facilitate treatment, Licata cut off all of the defendant's clothing. ⁵ What remained of the clothing was then left in a wet pile on the roadside. ⁶ Licata testified that the defendant did not resist treatment. After approximately ten or fifteen minutes of emergency treatment at the scene, the defendant was taken to the hospital by ambulance. A detective secured the defendant's clothing and wallet from the roadside, placed them in the trunk of his car, and brought them to the East Haven police department. The detective testified that he took them "[a]s a safekeeping process so they wouldn't be stolen or lost." The police did not consider the defendant to be a suspect at that time. At the police station, the clothes were hung to dry.

Later the same day, due to some concern that the defendant might be close to death, a police detective questioned him at the hospital. The detective explained that the questioning was initiated because "we didn't know who he was and to find out what transpired at the fire scene." The defendant was coherent and responsive to the detective's questioning. The detective also spoke to the defendant's wife and advised her that she could come to the station house and retrieve the clothing. Although his wallet was returned the next day, neither the defendant nor his wife made any attempt to retrieve the clothing in the several months between the time of the fire and the trial.

The state claims, as a result of ongoing investigation, that by the day after the fire the police had probable cause to believe that it had been started by the defendant. At that time, the clothing was transported to the state forensic laboratory in Meriden for analysis. Gas chromatography revealed the presence of either gasoline or a petroleum distillate similar to gasoline on some of the clothing. Thereafter, the clothing was returned to the East Haven police department.

After an extended period of hospitalization, the defendant was charged with one count of arson in the first degree under General Statutes §§ 53a-111(a)(3) and one count under 53a-111(a)(4). He was tried before a jury in November, 1990, and acquitted on the first charge but convicted on the second.

Additional facts will be set forth where they are relevant to each issue.

I

The defendant first claims that the test performed on his clothing constituted an illegal search and seizure in violation of the fourth amendment to the United States constitution ⁷ and article first, § 7, of the Connecticut constitution. ⁸

We start by recognizing that the first clause of the fourth amendment protects two different types of expectations: freedom from unreasonable searches and freedom from unreasonable seizures. "A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A 'seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property." Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2306, 110 L.Ed.2d 112 (1990); United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). Accordingly, the two concepts must be analyzed separately.

A

We first analyze the defendant's claim that his clothes were illegally seized. He does not appear to contend that the manner in which the clothes initially came into police custody was unconstitutional. The clothing was taken from the scene to protect it from possible loss or theft. Federal and state law both recognize that the police have a caretaking function relating to property exposed to possible loss, damage or theft. Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973); State v. Tully, 166 Conn. 126, 136-38, 348 A.2d 603 (1974).

The defendant contends that the illegal seizure occurred at the moment the clothes were transferred to the police laboratory for analysis. The gravamen of his argument is that, although the police needed no warrant when the clothing was drying in the detective division or when it was transferred to another area for storage, they did need a warrant to transfer the clothing temporarily to the laboratory.

By analogy to the cases dealing with seizure of persons, the clothing could not be considered seized absent some indication that the police, by a show of authority, restricted the defendant's right to exercise his dominion and control over it. See United States v. Jacobsen, supra; United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). There is no indication in the record that transferring the defendant's clothing to the laboratory provided any additional interference with the defendant's possessory interest. There is no evidence that the defendant was denied access to the clothing either before, during or after the testing. Indeed, neither he nor his family made any attempt to retrieve the clothing, although they were free to do so at any time. ⁹

The defendant's theory would mean that, whenever property is lawfully in the possession of the police, a seizure would arise each time something happens to that property thereby requiring a new warrant. For example, if the police legally seized a pistol during a search incident to an arrest, the pistol could not be taken to the police shooting range and fired for a ballistic test without a warrant's being issued. According to the defendant's argument, the transporting and firing of the pistol would constitute an additional and distinct seizure. We are not persuaded that the unwieldy burden placed on the police and the courts by this theory is justified by any concomitant benefit to the owner of the property. ¹⁰

B

Notwithstanding the absence of an illegal seizure, we proceed with our analysis to determine whether the scientific examination of the clothes constituted a search. In order to take advantage of the constitutional protection against unreasonable searches, the defendant has the burden of showing that he had a reasonable expectation of privacy in the item searched and that his expectation was one that society would recognize as reasonable. Rawlings v. Kentucky, 448 U.S. 98, 104-105, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); State v. Pittman, 209 Conn. 596, 601, 553 A.2d 155 (1989). We emphasize that although the burden is on the state to prove that a search falls within an exception to the warrant requirement; State v. Badgett, 200 Conn. 412, 424, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986); it is the defendant who must show that he had an actual subjective expectation of privacy. Rawlings v. Kentucky, supra, at 104, 100 S.Ct. at 2561; Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); State v. Brown, 198 Conn. 348, 356, 503 A.2d 566 (1986).

Whether the defendant has established a reasonable expectation of privacy is determined on a case by case basis; State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, --- U.S. ----, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991); by a factual inquiry into all of the relevant circumstances. State v. Reddick, 207 Conn. 323, 331, 541 A.2d 1209 (1988). The trial court's finding that the defendant had no reasonable expectation of privacy in the clothing may not be overturned on appeal "unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law." State v. Pittman, supra, at 601, 553 A.2d 155.

Although often referred to as a subjective expectation of privacy, the defendant must demonstrate an "exhibition of an actual expectation of privacy." (Emphasis in original.) United States v. Taborda, 635 F.2d 131, 137 (2d Cir.1980); California v. Greenwood, 486 U.S. 35, 39...