State v. Mitchell, 12977

Citation204 Conn. 187,527 A.2d 1168
Decision Date23 June 1987
Docket NumberNo. 12977,12977
CourtSupreme Court of Connecticut
PartiesSTATE of Connecticut v. Jeffrey MITCHELL. STATE of Connecticut v. Howard TINNEY, Jr.

Milo J. Altschuler, Seymour, for appellants (defendants).

Michael E. O'Hare, Asst. State's Atty., with whom were John M. Massameno, Wallingford, and, on brief, Gerard Esposito, Asst. State's Attys., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and MULCAHY, JJ. SHEA, Justice.

The Appellate Court set aside the judgments of the trial court granting the defendants' motions to exclude pretrial and in-court identifications, to suppress seized property, and to dismiss the information with prejudice in both cases. State v. Mitchell, 7 Conn.App. 46, 507 A.2d 1017 (1986). Having certified this combined appeal, we now conclude that the Appellate Court's judgment must be reversed with respect to the suppression of the identifications, which will therefore be excluded from evidence during further trial court proceedings in these cases.

Although the underlying facts are set forth in detail in State v. Mitchell, supra, we summarize those pertinent to the issues in this appeal. The defendants, Jeffrey Mitchell and Howard Tinney, Jr., were charged in two count informations with sexual assault in the second degree, in violation of General Statutes § 53a-71(a)(1), and risk of injury to or impairing the morals of a child, in violation of General Statutes § 53-21. These charges arose out of an alleged sexual assault occurring on Sunday evening, July 22, 1984, upon a fourteen year old girl, which she reported to the Ansonia police department. In response to the complaint, officer Michael J. Kennedy went to see the victim at her grandmother's home in Derby at approximately 11 p.m. Shortly thereafter, officers Peter Zaskiewicz and Mark Ptak, also of the Ansonia police department, joined Kennedy and then took the victim to the Griffin Hospital in Derby.

While at her grandmother's home, the victim told Kennedy that she had been assaulted in the parking lot of the Bradlees Department Store in Derby by two men riding in a Datsun. En route to the hospital, Zaskiewicz conversed further with the victim, who then described her assailants' car as "a white, bullet-shaped sportscar with white wheels, which she identified as a Mazda." State v. Mitchell, supra, 50, 507 A.2d 1017. Her assailants, she said, were two black men in their early twenties, one taller than the other.

Because the victim stated that she had been assaulted in Derby, the Ansonia officers contacted the Derby police department, which dispatched officers Joseph Iacuone and Eugene Mascolo to the hospital at approximately 11:30 p.m. The victim elaborated upon her rendition, telling the Derby officers that, "as she was walking through the Bradlees parking lot, two men got out of a white, torpedo-shaped sports car with shiny wheels, which she thought was a Mazda, and chased her to the end of the lot, where they caught her and assaulted her near the adjacent Baskin-Robbins ice cream store." Id. The victim stated that the taller man wore maroon sweatpants and a tee shirt, and that the shorter man wore jeans and a tee shirt. She further said that one of the men was named "Mike."

At the hospital, Zaskiewicz told Derby officer Robert Proto, who had also been assigned to investigate the incident, "that he knew that the defendant, Howard Tinney, Jr., drove a white Mazda RX-7 with silver wheels." Id., 51, 507 A.2d 1017. After Zaskiewicz had given Tinney's address on Scotland Road in Ansonia, Proto and Mascolo went to Scotland Road, arriving at the area of the Tinney residence about 2 a.m., the morning of July 23, 1984. A short while later, a white Mazda generally fitting the description given by the victim drove up followed by a white Thunderbird. Two black males exited the Mazda and entered the Thunderbird, which was being operated by a woman. Mascolo had recognized the shorter man as the defendant Tinney, who was wearing dark blue sweatpants and a tee shirt; the taller man was the defendant Mitchell, who wore jeans and a shirt. When the Thunderbird began to drive away, Proto pulled it over and advised the occupants that he was investigating a sexual assault.

Subsequently, in a ten minute talk with Zaskiewicz, who had joined the other officers, the defendants denied any involvement in the assault, claiming that they had spent the evening in Waterbury and in a bar in Ansonia. The defendants were told, nevertheless, that they "would have to go" to the Griffin Hospital for a field identification. Id. Upon arriving at the hospital between 2:15 and 2:30 a.m., the defendants were required to wait in the police car about twenty-five minutes while a physician treated the victim. When the victim, seated in a wheelchair, was brought within twenty feet of the defendants, as they stood in the emergency room, she positively identified Tinney as one of her assailants, and said she was "pretty sure" Mitchell was the other. 1 Id., 52, 507 A.2d 1017. At that point the defendants were arrested. The victim was next taken to Scotland Road, where she identified the white Mazda as the one driven by her assailants, and also claimed to recognize a helmet and a wicker basket visible through the rear window of the car.

Later, at approximately 4 a.m., at the Derby police headquarters, the victim retold her account of the assault. Upon being asked to sign the typewritten transcript of that account, she hesitated, and asked instead to talk to her mother. After speaking to her mother, the victim provided and then signed a version of the facts different from the one she had just given, claiming now that it was false. According to her new account, she had gone from her grandmother's house to Olson Drive in Ansonia at about 8:30 p.m. the previous evening . There she met a friend, who introduced her to two black men in a white sports car, whom she called "Jeff" and "Mike." Accepting the invitation of these two men to go for a ride, the victim was taken to Nolan Field, where, according to her statement, the men gave her cocaine and forced her to have sex with them. 2

The white Mazda, which was registered to Tinney's mother, was towed to the Ansonia police department at about 6:30 a.m. At about 9:30 a.m., a warrant was issued to search the car. Items seized during the subsequent search included "glassine bags and cellophane packages with white powder traces, other materials commonly associated with cocaine use, and a 'cigarette lighter phone with residue.' " Id., 54, 507 A.2d 1017.

The trial court ruled that, because "identification by one on one show-up is unnecessarily suggestive," the victim's identification of the defendants at the hospital was suppressible. The court further found the victim "not to be credible," referring to such factors as her admittedly fabricated first account of the crime and her confusion about the vehicle manufacturer, the color of the sweat pants, and the clothing in relation to the height of the assailants. As a result, the court also suppressed the photographic 3 and in-court identifications made by the victim, finding that they could not have been "wholly independent" of, but had been based upon, the earlier hospital identification.

Additionally, the trial court granted the defendants' motions to suppress evidence relating to the Mazda, the items found inside, and the property seized from the persons of the defendants. The court found that the defendants had been seized without probable cause. Calling the seizure of the car "warrantless and without justification," the court noted that no proof had been offered that "the Tinney vehicle was ever at the Baskin-Robbins or on Olson Drive," or that the helmet and wicker basket identified by the victim from outside the car, when she was taken from the hospital to view the Mazda as it was parked on Scotland Road, had previously been seen by her. Finally, the court granted the defendants' motions to dismiss the informations with prejudice, which motions claimed "insufficient reason or evidence to continue the prosecution...." See General Statutes § 54-56; Practice Book § 815(5). From the Appellate Court judgment setting aside the judgment of the trial court, the defendants have brought the present combined appeal.

I

The defendants first claim that the Appellate Court erred in concluding both that the police had made a valid investigative detention of the defendants on Scotland Road, and that the taking of the defendants to the hospital was within the permissible bounds of that detention. See State v. Mitchell, supra, 57-63, 507 A.2d 1017. The defendants contend that, because their detention was illegal, any evidence obtained thereby must be suppressed, including the hospital identification by the victim, "mug shots," fingerprints, and the defendants' clothing. 4 We find this ground for suppression of the evidence to be unpersuasive.

A

We first examine the reasonableness of the warrantless stop on Scotland Road of the defendants by officers Proto, Mascolo, and Zaskiewicz. We agree with the Appellate Court that "the stop of the defendants on Scotland Road was not an arrest, which would have required probable cause, but was an investigative stop requiring only reasonable and articulable suspicion." State v. Mitchell, supra, 58, 507 A.2d 1017; see Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); State v. Januszewski, 182 Conn. 142, 147-48, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981). The constitutional issue raised by this stop, therefore, is whether the actions of the Derby and Ansonia police officers exceeded the permissible limits of an investigative detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The state concedes on appeal that, as the trial court found, the defendants were ...

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