State v. Lee
| Decision Date | 24 September 1993 |
| Docket Number | Nos. 10836,10837,s. 10836 |
| Citation | 32 Conn.App. 84,628 A.2d 1318 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Dexter LEE. |
Christine Perra, Sp. Public Defender, for appellant (defendant).
Marjorie Allen Dauster, Deputy Asst. State's Atty., with whom, on brief, were John T. Redway, State's Atty., and Bernadette Conway, Asst. State's Atty., for appellee (state).
Before FOTI, LAVERY and HEIMAN, JJ.
The defendant appeals from judgments of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-278(b) and improper use of a motor vehicle registration in violation of General Statutes § 14-147(c) under one information, and of risk of injury to a child in violation of General Statutes § 53-21 and reckless endangerment in the first degree in violation of General Statutes § 53a-63 under a separate information. The jury acquitted him of criminal attempt to commit assault in the first degree and the lesser included offenses thereof.
On appeal, the defendant asserts that (1) the search of his car violated his state and federal constitutional rights to be free from unreasonable searches because (a) the actions of the Middletown police department constituted a search for fourth amendment purposes and (b) the search of his car did not fall within any of the recognized exceptions to the warrant requirement, (2) the narcotics that were found should have been excluded because the state failed to establish that the evidence was in an unchanged condition, (3) the state produced insufficient evidence to convict him under General Statutes § 21a-278(b), (4) the trial court's denial of his request to remove counsel and for a continuance denied him his due process rights, (5) the trial court's charge improperly highlighted the admission of a witness' inconsistent statement thereby prejudicing the defendant, and (6) the trial court improperly consolidated for trial two informations filed against him and the resulting prejudice was beyond the curative power of the court's instructions. We affirm the judgment of the trial court.
The jury could have reasonably found the following facts. On May 5, 1989, at approximately noon, Aleta Renee Jenkins, who lived at 12 Roosevelt Drive in Middletown, was walking home from her girlfriend's house. She saw her nine year old daughter across the street, waited until the daughter crossed the street and the two proceeded to their front door. At that moment, the defendant came out of the residence at 6 Roosevelt Drive. As Jenkins turned the doorknob to enter her house, she heard the defendant call her name. 1 She turned and saw the defendant squatting. She saw a gun in his hand and realized that he was aiming it at her. She also noticed that the defendant's cousin, Curtis Flood, was standing next to him. Jenkins grabbed her daughter who was standing behind her and ran into the house to hide. As she did this, she heard a gun shot. She testified that the defendant then got into his red Alfa Romeo Milano and drove away. Her daughter testified that she heard the defendant call her mother's name and saw the defendant holding a gun. Scott Jenkins, Aleta Jenkins' brother, who was inside the house at the time of the incident, also testified that he heard a shot and something hit the house. 2
During an investigation, Sergeant George Dingwell of the Middletown police found a copper coated lead bullet that was fired from a .38 caliber weapon lodged in the southwest corner of Jenkins' house.
On May 10, 1989, Glen Partridge, a self-employed automobile recovery agent at Coastal Auto Recovery, received an assignment from his client, Ford Motor Company (Ford), to repossess the defendant's 1988 silver four door Subaru GL. Ford supplied Partridge with the defendant's two known addresses in Middletown, 226 Ridgefield Drive and 54 Roosevelt Drive.
At 5 a.m., Partridge and an assistant went to Middletown to repossess the vehicle. As part of their normal course of business and out of courtesy, they notified the police of their intentions and showed the desk sergeant at the Middletown police department their order to repossess the vehicle. Partridge and his assistant then proceeded to the defendant's Roosevelt Drive address because Ford had informed them that the defendant was living there. Donald Anderson, a Middletown police officer, met Partridge and his assistant at the Roosevelt Drive address, where Partridge found the defendant's car. Partridge observed identifying characteristics including the vehicle identification number using the information that Ford provided him. Partridge hooked up the vehicle to a wrecker and towed the car away from Roosevelt Drive.
As they left Roosevelt Drive, Anderson stopped Partridge. Anderson checked the license plate numbers with the department of motor vehicles and discovered that the plate number did not match the registration for that vehicle. He removed the plate and Partridge replaced it with a transport plate. Partridge then towed the vehicle to the Middletown police department to inventory its contents and to fill out a report describing the condition of the vehicle and its mileage. Partridge testified that his company and Ford require that he inventory repossessed vehicles to ensure that the consumer's property is returned and that the vehicle does not contain any contraband or firearms. He also testified that he inventories the vehicle away from the location where he repossesses it to avoid breach of the peace. He further testified that he conducts an inventory of all of the vehicles he repossesses and that half of the time he conducts this inventory at the local police station.
While Partridge and his assistant gained entry to the locked passenger compartment of the vehicle and inventoried it, Anderson stood nearby. Anderson testified that he observed the inventory to ensure that if contraband were found he could preserve the chain of custody. He did not, participate, however, in the inventory process. Inside the Subaru, Partridge and his assistant found personal effects such as clothes, papers, a hard hat, a child's toy and safety glasses. Partridge also opened and inventoried the trunk. He then picked the lock to the locked glove compartment. Inside that compartment, he found personal papers, papers dealing with the vehicle, pens, pencils, and a partially opened tinfoil package that he thought might be a brownie. He handed the package to Anderson who opened it. Anderson discovered that the package contained a white substance in rock form. On the basis of his training and experience, Anderson thought that the package contained narcotics.
During the trial, Flood testified that the defendant had the only key to the automobile. This key opened the car's door, trunk and glove compartment, and started the ignition. While Flood testified that he often used the car for work and on weekends, he stated that he did so only with the defendant's permission and had to obtain the key from the defendant. He further testified that the narcotics found in the glove compartment were not his.
After a five day trial, in which two informations were consolidated, the jury found the defendant guilty of possession of narcotics with intent to sell, improper use of a motor vehicle registration, risk of injury to a child, and reckless endangerment. This appeal ensued. 3
The defendant first asserts that the trial court improperly denied his motion to suppress. He argues that the search of his automobile violated his federal and state constitutional rights to be free from unreasonable searches. 4 In making this claim, the defendant argues that the actions of the Middletown police department constituted a search for fourth amendment purposes and that that warrantless search did not fall within any of the recognized exceptions to the warrant requirement. We are not persuaded that the trial court improperly denied the motion to suppress. 5
At the suppression hearing, the court was presented with the following testimony. The defendant owned a 1988 Subaru that he purchased in New Hampshire and financed through the Ford Credit Company. He possessed the only key to the automobile. Because the defendant was delinquent in his payments for the car, Ford sought to repossess it.
On May 10, 1989, Partridge received a call and subsequently a facsimile from Ford instructing him to repossess the defendant's car. Following his usual practice, Partridge went to the local police station to inform the police that he would be repossessing an automobile. Dave Nicosia, an agent at Ford, had informed him that the owner of the car was dangerous and had previously been involved in a shooting. To avoid breaching the peace and for his own protection, Partridge occasionally requests that police accompany him to repossess a car. Partridge spoke with the desk sergeant and, at Partridge's request, an officer was sent to accompany him to repossess the defendant's automobile.
Partridge went to 54 Roosevelt Drive in Middletown, the defendant's girlfriend's address. He located the vehicle by its vanity license plate and vehicle identification number. Partridge then hooked up the vehicle to the wrecker and towed it to the Middletown police department.
Partridge testified that he normally tows an automobile to the local police station as he did here. There he fills out paperwork and inventories the repossessed automobile. Most of the companies that request his services require that Partridge inventory the contents of the car to determine the presence of firearms, narcotics, or other contraband. These companies also require that if firearms, narcotics, or other contraband are discovered during inventory that Partridge turn over the items to the police.
Partridge gained entry to the locked automobile and inventoried the passenger...
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