State v. Liam M.

• Decision Date: 03 October 2017
• Docket Number: AC 39337
• Citation: 172 A.3d 243,176 Conn.App. 807
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. LIAM M.

176 Conn.App. 807

172 A.3d 243

STATE of Connecticut

v.LIAM M.^*

AC 39337

Appellate Court of Connecticut.

Argued May 15, 2017

Officially released October 3, 2017

John R. Williams, for the appellant (defendant).

Sarah Hanna, assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, and James Dinnan, senior assistant state's attorney, for the appellee (state).

Sheldon, Keller and Bishop, Js.

BISHOP, J.

The defendant, Liam M., appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree with a dangerous instruement in violation of General Statutes § 53a–60 (a) (2)¹ and disorderly conduct in violation of General Statutes § 53a–182 (a) (1).² On appeal, the defendant claims that (1) his conviction for assault in the second degree should be reversed because there was insufficient evidence for the jury to determine that a polyvinyl chloride (PVC) pipe is a dangerous instrument within the meaning of General Statutes § 53a–3 (7), and (2) the trial court erred in denying his motion to suppress incriminating statements that he made to police on the ground that such statements should have been excluded as tainted fruit of an unconstitutional arrest. We agree that the trial court erred in denying the defendant's motion to suppress, and, accordingly, we reverse the judgment of conviction as to both charged offenses.

The jury reasonably could have found the following facts. At approximately 11:30 p.m. on October 4, 2014, the complainant provided a written statement to the North Haven Police Department alleging that her husband, the defendant, had assaulted her at approximately 4:30 p.m. that day. The statement reads: "[The defendant] followed me outside to my car yelling at me and he picked up a grey PVC pipe and swung it at me and hit me in the right hip on the side of my rear. Prior to swinging the pipe he threw a piece of wood at me and I had an open umbrella in my hand and used it as a shield and the umbrella broke. After he struck me with the PVC pipe he then blocked me from entering my house so I got my keys out of my car which was in the driveway and went up the stairs to enter from the deck thr[ough] my kitchen. He followed me up yelling at me but did not strike me again. I grabbed my makeup case and left the house and got in my car and headed to work. On my way to work I called the [North] Haven police main [phone] number to see if I could file a complaint over the phone just to have it on record and was told I needed to come down here and file it in person and I said [okay] I couldn't I had to go to work. I did get to work around 5 p.m. and headed to the [North] Haven Police [Department] after work [at approximately] 11:30 [p.m.]."

After the complainant provided her written statement, the officers photographed a bruise on her right hip, which she claimed resulted from the defendant striking her with the PVC pipe. The complainant also indicated to police that there was a history of domestic violence between her and the defendant, and that he became angry and violent when drinking alcohol.

Acting on the basis of the information that the complainant provided, Officers John Gaspar and Michael DiCocco of the North Haven Police Department went to the defendant's residence to question him. The defendant answered the door to his home, but remained inside the doorway and refused to speak with the officers. The defendant then attempted to close the door to his home, but Gaspar prevented him from doing so by stepping "inside with [his] foot at the base of the door ...." In his testimony, Gaspar acknowledged that he needed to step over the threshold to arrest the defendant, and described the place of arrest as in "the foyer." The defendant was placed under arrest and transported to the police station by DiCocco, while Gaspar remained at the residence to wait for the complainant to arrive home.³

While in custody, and after having received a Miranda⁴ warning at 1:34 a.m., the defendant made an oral statement to DiCocco. The officer testified at trial as to the contents of the statement, stating that the defendant said that during "an argument [the complainant] was very upset. And that she had taken a metal pipe and that she was hitting him with it. [The defendant] said that he then removed it from her hands, and he told me that he struck her with it once." When DiCocco tried to question him about the incident, the defendant stated that he did not strike the complainant. The defendant was released from police custody, and was charged subsequently with assault in the second degree in violation of § 53a–60 (a) (2) and disorderly conduct in violation of § 53a–182 (a) (1).⁵

Prior to trial, the defendant filed a motion to suppress the custodial statements that he made to police indicating that he had hit the complainant with a " ‘metal tube,’ " on the ground that the statements were the tainted fruit of an unconstitutional, warrantless arrest under the state and federal constitutions. The court heard the testimony of Gaspar and DiCocco, and Chris Zyck, a friend of the defendant who claimed to have been present during the arrest.⁶ Following the presentation of testimony, the court denied the defendant's motion to suppress, finding (1) "the officers had probable cause to effectuate a warrantless arrest of the defendant" from "the information the officers had from the [complainant]," and (2) "exigent circumstances existed at the time of the arrest." Thereafter, in their respective testimonies at trial, both the complainant and the defendant denied that the incident occurred.⁷ The complainant's statement to the police was admitted as a full exhibit pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). On April 7, 2016, the jury found the defendant guilty of assault in the second degree and disorderly conduct. On June 17, 2016, the court sentenced the defendant to five years incarceration, execution suspended after three years, and two years of probation on the count of assault in the second degree, and ninety days incarceration on the count of disorderly conduct, to be served concurrently. This appeal followed.

I

We address first the defendant's claim that the evidence was insufficient to support his conviction of assault in the second degree. Specifically, he argues that there was insufficient evidence that the PVC pipe was a dangerous instrument within the meaning of § 53a–3 (7) because "the state did not prove, and did not attempt to prove, that the ... PVC pipe ... in this case was capable under the circumstances in which it was used of causing ‘serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.’ " We are not persuaded.

We begin by setting forth our standard of review. "In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Jones, 289 Conn. 742, 754–55, 961 A.2d 322 (2008).

"A person is guilty of assault in the second degree when ... with intent to cause physical injury to another person, the actor causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm ...." General Statutes § 53a–60 (a) (2). Thus, the state bore the burden of proving beyond a reasonable doubt that "(1) the defendant intended to cause physical injury to another person, (2) he did in fact cause injury to such person and (3) he did so by means of a dangerous instrument." (Internal quotation marks omitted.) State v. Bosse, 99 Conn.App. 675, 678, 915 A.2d 932, cert. denied, 282 Conn. 906, 920 A.2d 310 (2007). The defendant claims that the state failed to meet its burden with regard to the third element because there was insufficient evidence to prove that a PVC pipe, as used in the present case, was a dangerous instrument.

Whether an instrument is a dangerous instrument is a question of fact for the jury. State v. Jones, 173 Conn. 91, 95, 376 A.2d 1077 (1977). "[F]indings of fact are entitled to great deference [on review] and will be overturned only on a showing that they were clearly erroneous." State v. Moreno–Cuevas, 104 Conn.App. 288, 291, 934 A.2d 260 (2007), cert. denied, 287 Conn. 901, 947 A.2d 344, cert. denied, 555 U.S. 947, 129 S.Ct. 400, 172 L.Ed.2d 293 (2008). Indeed, "[i]n reviewing factual findings, [w]e do not examine the record to determine whether the [finder of fact] could have reached a conclusion other than the one reached.... Instead, we make every reasonable presumption ... in favor of the [finder of fact] ...." (Internal quotation marks omitted.) Farren v. Farren, 162 Conn.App. 51, 66, 131 A.3d 253 (2015), cert. denied, 320 Conn. 933, 134 A.3d 622, 623, cert. denied, ––– U.S. ––––, 137 S.Ct. 296, 196 L.Ed.2d 215 (2016).

A " ‘[d]angerous instrument’ " is defined as "any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury ...." General Statutes § 53a–3 (7). " ‘Serious physical injury’ " is defined as "physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ ...." General Statutes § 53a–3 (4).

In determining whether an instrument is dangerous, a jury may find that an ordinary object is a dangerous instrument; State v. McColl, 74 Conn.App. 545, 554, 813 A.2d 107, cert. denied...