State v. Magnano, 12519

Decision Date07 July 1987
Docket NumberNo. 12519,12519
Citation204 Conn. 259,528 A.2d 760
CourtConnecticut Supreme Court
Parties, 56 USLW 2099 STATE of Connecticut v. Carol MAGNANO.

Suzanne Zitser, Asst. Public Defender, with whom, on the brief, were Joette Katz, Public Defender, and Kent Drager, Asst. Public Defender, for appellant (defendant).

Susan C. Marks, Deputy Asst. State's Atty., with whom, on the brief, was John T. Redway, State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, BORDEN and MENT, JJ.

BORDEN, Associate Justice.

The defendant appeals from a judgment of conviction, after a jury trial, of the crime of murder in violation of General Statutes § 53a-54a(a). 1 The defendant claims that the trial court erred: (1) in refusing to suppress certain photographs taken and diagrams made during a warrantless entry and search of her premises; and (2) in admitting into evidence communications between the defendant and a battered women's counselor in alleged violation of General Statutes § 52-146k(b). We find no reversible error.

I

At the suppression hearing the following facts were revealed. On October 13, 1982, three Middletown police department patrol officers, Sergeant Ralph Ward, Officer Jerry Artikes and Officer Luigi Liistro, were dispatched to the defendant's residence at 3 Woodlot Lane in Middletown in response to a report of a burglary in progress. The defendant had telephoned the police at approximately 3:45 a.m. to report that an intruder had entered her home, that her husband was asleep downstairs, and that she was upstairs with her three children. Ward arrived at aproximately 3:50 a.m. and began to walk around the house. As he was circling the house, he encountered Artikes. Together, they entered the patio, and through an open sliding glass door went into the dining room area of the house. They checked the kitchen, and observed that the cabinet doors were open and that the room was in disarray. They entered the living room in response to a noise, and discovered the defendant's husband, James Magnano, lying on a couch, unconscious but alive. An arrow protruded from his left temple, and blood covered the couch, blanket, sheets, pillow and rug. An ambulance was immediately summoned, and thereafter Artikes and Ward proceeded upstairs. They entered two bedrooms, and after noticing a light under a door entered a third bedroom where they found the defendant and her three children. Liistro, who had by now arrived on the scene, stayed with the defendant and her children while Ward and Artikes conducted a thorough search of the rest of the house for the presence of an intruder. By this time, the officers had concluded, from the condition of the house and the assault on James Magnano, that a burglary had taken place. The officers also concluded after this search that the intruder was no longer on the premises.

The defendant was informed that her husband had been injured and was being taken to the hospital. She was advised to call someone to take her to the hospital. She called her brother-in-law, Robert Magnano, who arrived about 4:15 a.m. Meanwhile, the ambulance had already arrived for the victim. The defendant and her three children left with Robert Magnano for his house. It is undisputed that at this time the defendant was not a suspect in the assault. It is also undisputed that by the time the defendant had left the premises, the emergency had terminated since the premises had been searched and secured and the victim was on the way to a hospital, where he later died.

The detective squad had been notified of the incident at 3 Woodlot Lane because it was standard operating procedure for it to conduct the investigation and process various items. Shortly after the defendant left, members of the detective squad began arriving on the scene. Sergeant Ronald Lee was the first to arrive, at approximately 4:25 a.m. His arrival was closely followed by those of Captain Salvatore Faraci, who was in charge of the investigation, and by Sergeant Robert Clayton. Faraci assigned Lee as the evidence officer, whose primary task was to take evidence into custody. Faraci assigned Clayton as the photography officer. Pursuant to these duties, the officers accompanied Ward as he reenacted his movements and recollected his observations from the moment of his arrival on the scene to his discovery of the defendant and her three children in the room upstairs, and thereafter during his search for intruders on the premises. The items which Ward observed in plain view were photographed 2 and taken into custody by the detectives. Additionally, either Lee or Clayton took photographs of various interior and exterior areas of the house, including the dinette and kitchen areas, and took measurements for the purpose of diagramming the crime scene. The photographs were taken between 4:40 and 6:30 a.m., although upon discovery that Clayton's photographs would be unusable because of a camera malfunction, replacement pictures were taken sometime prior to 10 a.m. Ward, Artikes and Liistro, the initial responding officers, left the defendant's house soon after the arrival of the members of the detective squad. By 10 a.m., all police officers had left the house.

The defendant filed a motion to suppress the evidence taken into custody by the detectives, claiming that it had been seized pursuant to a warrantless search which fell within none of the exceptions to the search warrant requirement. Specifically, the defendant sought to suppress tangible evidence, photographs of the interior and exterior of the premises as they appeared to the patrol officers on their initial entry, and sketches which incorporated measurements taken by Lee.

The trial court, Hale, J., granted the motion in part. Of relevance to this appeal is the following order: "Motion granted as to any pictures taken at the scene on October 13, 1982, by the detectives and any diagrams or sketches made by them from measurements or observations taken at the scene by them." In granting this part of the motion to suppress, the trial court rejected the state's argument that the search fell within the consent exception to the warrant requirement. 3 The court also rejected the application of the emergency or exigency exception to the search warrant requirement articulated in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The court reasoned that Mincey v. Arizona, supra, justified the admission of tangible evidence observed in the plain view of the responding officers, and that the legality of the seizure was not affected by the fact that the officers left it in place for processing by the detective squad. The court held, however, that once the premises had been secured, a search warrant was required for further seizures and, therefore, any photographs or diagrams incorporating measurements which were taken without a warrant must be suppressed.

The state requested and was granted permission to reargue the motion with respect to this ruling. After reargument, the court modified its earlier ruling, and permitted the state to introduce photographs taken and diagrams made by the detectives which depicted the plain view observations of the responding officers. The court reasoned: "[T]o the extent that the second group of officers enter upon the scene and do no more than the first group of officers would have been justified in doing, secure evidence in plain view and not expand the scope or nature of the original entry, the fruits of that action should be admissible.... [T]he Court finds that the motion to suppress photographs and diagrams or sketches taken by or made by detectives who arrived on the scene after the property had been secured, is denied, but only insofar as evidence indicates that those photographs, diagrams and sketches depict evidence on the scene as it was in the plain view of the uniformed officers who first came on the scene." As a result of this modified ruling, certain photographs, depicting evidence and the interior and exterior areas of 3 Woodlot Lane, and diagrams, incorporating measurements taken by Lee, were admitted into evidence. See footnote 2, supra.

The defendant claims that the court erred in modifying its original order, and that the photographs and diagrams were seized in violation of the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the Connecticut constitution. 4 Specifically, she claims that while the exigency or emergency exception to the search warrant requirement articulated in Mincey v. Arizona, supra, justified the initial entry of the responding officers, the limited search to secure the premises and the seizure of evidence in plain view, it did not justify the subsequent warrantless entry and search by the detectives after the emergency was terminated, the premises had been adequately secured, and the defendant had left the premises. Therefore, she claims, the photographs and diagrams arising from that illegal search should be suppressed. The state responds that the court's modified ruling was consistent with the doctrine enunciated in Mincey v. Arizona, supra, and its progeny, and constituted a finding that the reentry of the detectives was a mere continuation of the original legal entry of the responding officers. Therefore, the state claims, the detectives were permitted to seize evidence and memorialize it by photographs and diagrams so long as it coincided with the plain view observations of the responding officers. We agree with the state.

It is clear that " 'a search conducted without a warrant issued upon probable cause is "per se unreasonable ... subject only to a few specifically established and well-delineated exceptions." ' Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973), quoting Katz v. United States, [389 U.S. 347, 357 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) ]." State v....

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