State v. McNellis

• Court: Connecticut Court of Appeals
• Writing for the Court: Before DUPONT; DUPONT; The defendant's final claims of error concern the eighty year effective sentence imposed by the trial court. The defendant claims that one trial court, Quinn, J., erred in imposing sentence in an illegal manner, and that anothe
• Citation: State v. McNellis, 546 A.2d 292, 15 Conn.App. 416 (Conn. App. 1988)
• Decision Date: 20 September 1988
• Docket Number: No. 4558,4558
• Parties: , 79 A.L.R.4th 745 STATE of Connecticut v. William McNELLIS.

Page 292

546 A.2d 292

15 Conn.App. 416, 79 A.L.R.4th 745

STATE of Connecticut v. William McNELLIS.

No. 4558.

Appellate Court of Connecticut.

Argued April 12, 1988.

Decided Aug. 9, 1988.

Certification Denied Sept. 20, 1988.

James E. Swaine, New Haven, for appellant (defendant).

Judith Rossi, Deputy Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (state).

Before DUPONT, C.J., and DALY and EDWARD Y. O'CONNELL, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(2), larceny in the first degree in violation of General Statutes § 53a-122(a)(2), attempted assault in the first degree in violation of General Statutes §§ 53a-49(a)(2), 53a-59(a)(1), and 53a-8, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48(a)(2) and 53a-134(a)(2), and larceny in the first degree in violation of General Statutes §§ 53a-119(8) and 53a-122(a)(3).

The defendant claims that the trial court erred (1) in denying his motions to dismiss and to suppress physical evidence on the ground that his arrest was not based on probable cause, (2) by instructing the jury on the missing witness rule; Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960); and by allowing the state to argue missing witness inferences prior to the court's ruling on such inferences, (3) in denying the defendant a right to be present during the court's voir dire of the individual jurors concerning jury tampering, and in denying the defendant's subsequent motion for a mistrial, (4) in denying his motions for a mistrial filed on the ground that he was denied a fair trial by the trial court's allowing the testimony of a state trooper that a gun in evidence in this case was also testfired and compared to bullets in another criminal matter, and allowing the testimony of a criminalist, as to the existence of a red stain on an alleged accomplice's pants which were seized at the time of arrest, when the state had failed to disclose that evidence pursuant to discovery orders, (5) in refusing to allow the defendant to proceed on his motion to suppress identification testimony and in allowing into evidence identification testimony which had been tainted by a prior allegedly suggestive show up, and (6) in illegally imposing sentence upon the defendant and in refusing to hear the merits of his motion to vacate the alleged illegal sentence. We find no reversible error.

The jury reasonably could have found the following facts. Two men wearing ski masks and gloves robbed a branch office of the Jefferson Federal Savings Bank located at the Bella Vista apartment complex in New Haven. At the time of the robbery, three bank tellers and several customers were inside the bank. The tellers were able to testify as to the descriptions of the two robbers. One of the perpetrators was described as a tall, thin man, with mustache hairs protruding through his mask, wearing a green jump suit and blue and white high-topped sneakers. The other perpetrator was described as a shorter man with a heavier build, fair skin, very light eyes, and a harsh voice, wearing old, bell-bottomed blue jeans, a checked tweed coat over a dark sweatshirt, and grey suede shoes.

Both of the perpetrators were armed with handguns. They emptied the contents of the cash drawers and a vault drawer into a green duffel bag and a pillowcase. Among the stolen contents was bait money, which contained exploding red dye packets.

Maintenance personnel had seen two masked men get out of a green Thunderbird, which was parked in the bank driveway with its motor running, and then enter the bank. A building superintendent got into the Thunderbird and started to drive it away from the bank. When the robbers came out of the bank, they chased after the automobile, banged on it, and then fired several shots. At that time, the dye packets in the bait money exploded, discharging a red dye into the air. The perpetrators were then observed fleeing across the street and into a bushy area near a building diagonally across from the bank.

After the superintendent told a security guard to call the police, he and another superintendent saw the defendant, who was breathing heavily, perspiring, and had a leaf stuck to his cheek, emerge from the bushy area at the top of the embankment. It had been raining heavily that day, but at the time of the robbery it was only misting. Behind the defendant was a taller man, later identified as Raymond Flinter. The defendant stated: "Did you see 'em? They robbed the bank." The superintendent asked in which direction the robbers went, and the defendant responded that the robbers had gone down the hill, away from the area, and that one of the perpetrators was a black man.

Flinter, who was wearing white and blue high-topped sneakers, started walking rapidly toward another building. He was subsequently apprehended by a uniformed police officer responding to the robbery alarm. Upon noticing that Flinter was in police custody, the superintendent suggested that the defendant inform the police that his friend was not involved in the robbery incident. The defendant responded that he did not know the man, but had only just met him as they came up the hill. The defendant then walked hastily away. The superintendent and other persons congregating in the area pointed out to Officer George Hill, who had just arrived on the scene, that one of the perpetrators was around the corner of a building. Hill proceeded around the corner of the building and saw the defendant walking away from the commotion, looking wet or sweaty, muddy, and unkempt. Hill then identified himself as a police officer and took the defendant into custody. At the time of his arrest, the defendant was wearing a dark sweatshirt, denim jeans, and grey suede shoes. These articles of clothing were seized from his person pursuant to a search incident to his arrest.

I

The defendant first claims that the trial court erred in denying his motion to suppress evidence seized at the time of his arrest, on the ground that there was no probable cause to arrest him, as there existed no facts known to the officer to conclude that he was one of the bank robbery perpetrators. Accordingly, the defendant contends that the search incident to that arrest violated his right to be free of unreasonable searches and seizures under the federal ¹ and state ² constitutions. We disagree.

We recognize the principle that subject only to a few well defined exceptions, a search conducted without a warrant issued upon probable cause is an unreasonable search. State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986). A specifically established exception to this rule provides, however, that where evidence obtained without a warrant is obtained as a result of a valid search and seizure incident to a lawful arrest, such evidence is not illegally obtained and is therefore admissible. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); State v. Cobuzzi, 161 Conn. 371, 377-79, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 677, 30 L.Ed.2d 664 (1972). It is the state's burden at trial to establish this exception. State v. Badgett, supra, 200 Conn. at 424, 512 A.2d 160; State v. Lizotte, 11 Conn.App. 11, 17, 525 A.2d 971, cert. denied, 204 Conn. 806, 528 A.2d 1154 (1987). The issue that we must decide, then, is whether the search of the defendant was incident to a lawful warrantless arrest.

Pursuant to subsection (b) of General Statutes § 54-1f, a police officer is authorized to arrest, without a warrant, "any person who the officer has reasonable grounds to believe has committed or is committing a felony." The term "reasonable grounds," within the meaning of § 54-1f(b), has been interpreted to mean "probable cause," as that term has been defined by judicial opinion. State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983). Probable cause, sufficient to support a warrantless arrest, exists when " ' " 'the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony had been committed' " ' "; State v. Dennis, supra, at 431, 456 A.2d 333; State v. Gasparro, 194 Conn. 96, 105, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S.Ct. 90, 88 L.Ed.2d 74 (1985); State v. Wilson, 178 Conn. 427, 435-36, 423 A.2d 72 (1979); and that the person arrested committed the felony. State v. DeChamplain, 179 Conn. 522, 529, 427 A.2d 1338 (1980).

" 'The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction.' " State v. Dennis, supra. In this case, we consider solely the knowledge of Hill, the arresting officer, at the time of the arrest because that is the only evidence pertaining to the issue of probable cause. Hill was aware of certain facts prior to the defendant's arrest. On the day of the bank robbery, Hill was on duty and was assigned to the street crime division of the New Haven police department. As a member of the street crime division, Hill was mainly involved with crimes concerning robbery or narcotics. At approximately 1:30 p.m., on May 31, 1984, Hill and his partner heard a radio alarm that came over the police communication system, signalling them that a bank robbery had occurred at the Jefferson Federal Savings Bank located at the Bella Vista apartment complex. They responded to that location and Hill dropped off his partner at the bank. Hill had intimate knowledge of the Bella Vista housing complex because his mother lived there. Hill noticed that it had just stopped raining, that the air was moist, and the ground muddy. He then...