State v. McClain

• Decision Date: 20 July 1976
• Citation: 370 A.2d 928,171 Conn. 293
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Henry A. McCLAIN.

Page 928

370 A.2d 928

171 Conn. 293

STATE of Connecticut v. Henry A. McCLAIN.

Supreme Court of Connecticut.

July 20, 1976.

John C. Archambault, Sp. Public Defender, for appellant (defendant).

C. Robert Satti, State's Atty., with whom, on the brief, was D. Michael Hurley, Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and COTTER, LOISELLE, BOGDANSKI and MacDONALD, JJ.

MacDONALD, Justice.

On a trial to a jury, the defendant was found guilty of the crime of illegal possession of narcotic drugs, to wit, heroin, cocaine and morphine, in violation of § 19-452 of the General Statutes, the punishment for which is provided in § 19-481(a). On his appeal to this court, he has raised five issues, having abandoned two of those originally contained in his preliminary statement of issues, and having added the claim of ineffective assistance of counsel as a claimed deprivation of his constitutional rights.

Two of the issues raised and briefed may be disposed of without extensive comment. The first claim, questioning the proper selection of the jury, asserts that the panel from which it was selected 'did not constitute a representative group of the residents in the community in that no black minority members were on the panel.' This claim simply is not supported by the record since no evidence pertinent to the issue was introduced. Defense counsel merely stated to the court that it was his belief that the entire jury panel was white and made no effort to substantiate this statement. On the other hand, the record does indicate that when it was noted that there might be a shortage of jurors on the available panel, it was stipulated that Circuit Court jurors might be used, if necessary, and defense counsel stated that he had no objection, but that the defendant wished to have the regular panel exhausted first. There is nothing in the record to indicate how many blacks were available on the Circuit Court panel or that the defendant even requested such information. Substantiation of the claim that the panel from which the jurors were drawn did not constitute a representative group 'requires something more than defense counsel's speculation.' State v. Bowen, 167 Conn. 526, 532, 356 A.2d 162, 165. 'Moreover, there is no indication in this record that the statutory selection process of which the defendant complains in any way operated to deny him a jury array representative of his community or, more particularly, resulted in an under -representation of blacks.' State v. Townsend, 167 Conn. 539, 550, 356 A.2d 125, 133. 'Since the defendant offered no evidence . . . he has not met his burden of proof, and therefore his claim must fail.' State v. Hart, 169 Conn. 428, 435, 363 A.2d 80.

A second issue raised which requires little comment is whether the court's order granting sequestration of the witnesses was properly enforced. In granting the defendant's motion to sequester the state's witnesses as well as the state's motion to sequester the defense witnesses, the court stated, in effect, that no witness who was going to testify would be permitted to remain in this courtroom. This order complied with our law. State v. Pikul, 150 Conn. 195, 200, 187 A.2d 442. As was stated in State v. Williams, 169 Conn. 322, 331, 363 A.2d 72 'a sequestration order merely prohibits a sequestered witness from being in the courtroom when he is not testifying.' The court's order was in accord with the motions made.

The first issue extensively briefed and argued by the defendant raises the question whether the search of the premises where the defendant was arrested and during which evidentiary material was seized was a proper search and not in violation of his constitutional rights. Although defense counsel made no objection as each item of the evidence seized during the search was offered into evidence and admitted by the court, we will consider the question, in accordance with our decision in State v. Evians, 165 Conn. 61, 70, 327 A.2d 576, whether such action by the court violated the defendant's constitutional rights. The factual background necessary for our consideration of this issue, as set forth in the briefs and not controverted, is as follows: State police officers, with a warrant for the arrest of one Dorothy Ellis on a narcotics charge, were advised that she was residing at 26 Brewer Street in New London, and went to that address armed with the warrant. A knock at the door was answered by one Rita Charette, who resided there and who, upon being advised that they were police officers with a warrant for the arrest of Dorothy Ellis, admitted them to the apartment and, when asked where Dorothy Ellis was, pointed to a bedroom door that was partially closed and said, 'She's in there.' A state policewoman, Doris Hughes, opened the partially closed door and entered the bedroom where she observed three persons seated on two beds upon and in front of which were open glassine bags containing substances later identified as heroin and cocaine, a 'cooker' and several sets of equipment, commonly referred to as the 'works,' for administering such drugs, all within reach of the defendant, Henry A. McClain, Dorothy Ellis and Sara Robinson, who were the three occupants of the room and who were within the unobstructed view of the officers. Policewoman Hughes identified and arrested Dorothy Ellis and then also arrested Sara Robinson and the defendant, having first observed a fresh needle puncture mark on the defendant's arm. Another police officer, at policewoman Hughes' order, took possession of the drugs, 'cookers,' 'works' and homemade tourniquets found in the room.

From the foregoing facts, it is clear that the arresting officers were properly on the premises, having been admitted to the dwelling unit by an occupant in residence there at the time after they had knocked at the door and stated their purpose. No forcible entry was involved nor was there even a search in this case since all of the items of contraband seized were in plain view of the officers as an arrest was being made with a warrant of unchallenged validity. The United States Supreme Court has held that under certain circumstances the police may seize evidence in 'plain view' without a warrant, the circumstances validating that seizure involving a prior justification for the officer's presence on the premises where he inadvertently observed the evidence tending to incriminate the accused. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564. The court also has held that, if incident to a lawful arrest, an officer may search the person being arrested and the area within his immediate control, including the room in which the arrest occurs. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685; United States v. Rabinowitz, 339 U.S. 56, 63, 64, 70 S.Ct. 430, 94 L.Ed. 653. And in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, the court held that the doctrine that a search without a warrant may lawfully be conducted if incident to an arrest is entirely consistent with the constitutional protection against unreasonable search and seizure. Here, during the execution of a valid warrant for the arrest of Dorothy Ellis, the defendant was found to be in possession of contraband drugs and equipment in clear view in the same room and at the same time that the arrest was made. 'In the case at bar, it is apparent from the facts . . . that the police officers were at a place where they had a right to be. . . . At the time, (the arresting officer) was not searching for evidence against the defendant but rather came on (it) inadvertently. He observed not only that items of contraband were in plain view but also that the parties were involved in the commission of a crime. . . . Thus, under the 'plain view' exception, we conclude that the evidence sought to be suppressed was properly seized and that there was no violation of the defendant's fourth amendment rights.' State v. Krause, 163 Conn. 76, 83-84, 301 A.2d 234, 237.

The fourth issue raises the question whether the trial court erred in holding the defendant in contempt in the presence of the jury without prior warning that he was subject to such action and in thereafter failing to instruct...