State v. McLucas

• Decision Date: 15 March 1977
• Citation: 375 A.2d 1014,172 Conn. 542
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Lonnie McLUCAS.

Page 1014

375 A.2d 1014

172 Conn. 542

STATE of Connecticut v. Lonnie McLUCAS.

Supreme Court of Connecticut.

Argued Dec. 10, 1976.

Decided March 15, 1977.

Michael P. Koskoff, Bridgeport, with whom were Lucy V. Katz, Bridgeport, and, on the brief, Theodore I. Koskoff and John D. Jessep, Bridgeport, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (state).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

BARBER, Associate Justice.

The defendant was charged with the following violations of the General Statutes (Rev. to 1968): by indictment with the crime of kidnapping resulting in death in violation of General Statutes § 53-27, and by information with the crimes of conspiracy to commit kidnapping in violation of § 53-27, conspiracy to commit murder in violation of § 54-197, and with the crime of binding with intent to commit crime in violation of § 53-19. A jury found the defendant guilty of conspiracy to commit the crime of murder and not guilty of the other crimes. The defendant has appealed from the judgment rendered, assigning as error a number of rulings by the trial court.

A brief statement of some of the background facts, not disputed by the parties, will put the issues in proper perspective. The charges against the defendant, Lonnie McLucas, all arose out of events culminating in the death of Alex Rackley. The defendant and others had established a branch of the Black Panther Party in New Haven. The conspiracy to murder Rackley was alleged to have developed during the period of May 18 through May 21, 1969, and was alleged to have included several members and affiliates of the Black Panther Party in New Haven. Those charged included the national party chairman, Bobby Seale, who was indicted for participation in the murder and was alleged to have given the order that Rackley be killed. The state contended that Rackley was tortured and killed because he was suspected of being a police informer. A number of those charged with being involved in the murder entered guilty pleas. Two pleaded guilty to second degree murder, two pleaded guilty to conspiracy to commit murder, three pleaded guilty to aggravated assault, and one pleaded guilty to conspiracy to commit kidnapping. All charges against Bobby Seale were dismissed after a lengthy trial ended in a hung jury. The defendant was tried alone after being denied a joint trial with several other defendants. It is undisputed that Rackley was "disciplined" by torture and then was bound and driven to a swamp in Middlefield. During the trial, the defendant described his participation in the events and admitted that after Rackley had been taken to a wooded area and had been shot once, he, McLucas, was given the gun and fired a second shot. The defendant's defense for his actions was predicated on the claim of an overwhelming fear of, and coercion by, another alleged participant, George Sams, whom the defendant sought to portray as a madman. The state contended that Rackley was tortured and killed not because of pressure from one individual, Sams, but because he was suspected of being a police informer within the Black Panther Party.

The court made a finding on each of the rulings involved in this appeal, which finding includes such facts as were considered incidental to each of the respective rulings.

I

Prior to the trial, the defendant moved to suppress as evidence a tape recorder, tape recordings and a .45 caliber revolver which had been seized from an apartment at 365 Orchard Street in New Haven. The motion was denied without prejudice to the defendant's right to renew it at the time of trial. There was subsequently a full hearing on the motion at the time of trial. The defendant claimed that he had standing to challenge the search on the basis of his membership on the central staff of the Black Panther Party. The court concluded that the defendant did not have standing to challenge the search and seizure in that he was not on the premises at the time of the seizure and had no possessory interest in either the premises or the articles seized. "(T) here is no standing to contest a search and seizure where . . . the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure." Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208. A person may have a possessory interest in the premises searched even though he has no title to the premises. Mancusi v. DeForte, 392 U.S. 364, 367-68, 88 S.Ct. 2120, 20 L.Ed.2d 1154; Jones v. United States, 362 U.S. 257, 265, 80 S.Ct. 725, 4 L.Ed.2d 697; State v. Darwin, 161 Conn. 413, 419, 288 A.2d 422. The defendant had the burden of establishing the facts necessary to demonstrate a basis for standing to attack the search and seizure. See Combs v. United States, 408 U.S. 224, 227, 92 S.Ct. 2284, 33 L.Ed.2d 308. It has been made clear that capacity to claim the protection of the fourth amendment depends not upon a property right in the premises searched but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion. Mancusi v. DeForte, supra, 392 U.S. 368, 88 S.Ct. 2120; Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 19 L.Ed.2d 576. It is evident that the defendant was not charged with an offense that had as an essential element the possession of seized evidence at the time of the search and seizure. See Brown v. United States, supra. In addition, it appears from the finding that the defendant was not at the apartment when the police entered and the seizure occurred, and the articles neither belonged to the defendant nor were they in his custody at the time they were seized.

In this case, the critical issue on the defendant's motion to suppress as evidence the property seized is whether, in light of all the circumstances, the defendant had a possessory interest in the searched premises at 365 Orchard Street such that those premises constituted an area in which the defendant had a "reasonable expectation of freedom from governmental intrusion." Mancusi v. DeForte, supra. In Mancusi, the defendant union official was found to have standing to object to the seizure of certain union records. The papers were taken from an office which was used for union purposes and which the defendant shared with several other union officials. It was stipulated that he spent a considerable amount of time in that office, and that he had custody of the papers at the moment of their seizure. He was present in the office during the seizure, and protested the taking of the papers. In marked contrast, it appears from the finding in the present case that Warren Kimbro was the person who resided in, and paid the rent for, the apartment at 365 Orchard Street; that the defendant did not live in this apartment, had no proprietary interest in it, and had only stayed overnight there once; that the defendant had no possessory interest in the articles seized; that the Black Panther group in New Haven held meetings at Warren Kimbro's apartment; and that the apartment was mainly a residence and only sometimes used for office purposes by the Black Panther group. In further contrast to the situation in Mancusi, in the present case there was no stipulation or finding that the defendant had custody of the items at the moment of seizure. The defendant's reliance on State v. Darwin, 161 Conn. 413, 288 A.2d 422, is also misplaced. In that case, we held (p. 420, 288 A.2d p. 426) that a husband had standing to challenge a search and seizure involving his wife's automobile because "(t)o hold . . . that a vehicle titularly owned by a wife is not also owned by the husband for purposes of search and seizure would seem to be an improper stretching of technicalities." Such a situation is clearly distinguishable from the remote connection which the defendant had with the premises in question here. The conclusions of the trial court set forth in the finding must stand if they are legally and logically consistent with the subordinate facts found unless they involve the application of some erroneous rule of law material to the case. State v. Bowen, 167 Conn. 526, 531, 356 A.2d 162; Consiglio v. Warden, 160 Conn. 151, 157, 276 A.2d 773. We have examined the subordinate facts in the finding relating to this issue and are of the opinion both that they support the conclusions reached and that those conclusions involve no erroneous rule of law.

II

The defendant moved to suppress statements made by him to officers in Salt Lake City, Utah, before voluntarily returning to this state, and a statement made by him to Sergeant Vincent J. DeRosa in New Haven on June 11, 1969. There was a full hearing on the motion to suppress statements at the time of trial. A detailed recital of all the facts contained in the voluminous finding would unduly lengthen this opinion, but we do include the following summary of the facts found by the court: On June 6, 1969, the Salt Lake City office of the Federal Bureau of Investigation (hereinafter referred to as the F.B.I.) had received a call from the bureau's New York office that two individuals for whom the New York office had fugitive warrants would possibly stop at the Western Union office in Salt Lake City. The bureau had a fugitive warrant for the defendant who arrived at the Western Union office on June 6, 1969. The defendant was taken into custody and advised of his rights. At the F.B.I. office in Salt Lake City, he was charged with unlawful flight to avoid prosecution and was informed of the Connecticut warrant charging him with conspiracy, murder, kidnapping and other...