State v. Montgomery

• Citation: 254 Conn. 694,759 A.2d 995
• Parties: (Conn. 2000) STATE OF CONNECTICUT V. TYRONE MONTGOMERY SC 15880
• Decision Date: 17 October 2000
• Court: Supreme Court of Connecticut

759 A.2d 995 (Conn. 2000)

STATE OF CONNECTICUT

V.

TYRONE MONTGOMERY

SC 15880

THE SUPREME COURT OF THE STATE OF CONNECTICUT

Argued January 13, 2000

October 17, 2000

Kent Drager, senior assistant public defender, for the appellant (defendant).

Judith Rossi, executive assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Dennis O'Connor, senior assistant state's attorney, for the appellee (state).

Borden, Norcott, Katz, Palmer and Sullivan, Js.

Palmer, J.

OPINION

The defendant, Tyrone Montgomery, was charged with murder in violation of General Statutes §§ 53a-54a (a),¹ felony murder in violation of General Statutes §§ 53a-54c² and attempted murder in violation of General Statutes §§§§ 53a-54a (a) and 53a-49 (a) (2).³ The defendant also was charged under General Statutes §§ 53- 202k⁴ with using a firearm during the commission of a class A, B or C felony. A jury found the defendant guilty of murder and felony murder.⁵ The trial court rendered judgment in accordance with the jury verdict and sentenced the defendant to a prison term of sixty years.⁶ The court also determined, from the evidence presented at trial, that the defendant had used a firearm during the commission of the murder in violation of §§ 53-202k. Accordingly, the trial court, pursuant to §§ 53-202k, imposed a five year sentence to run consecutively to the defendant's sixty year sentence, for a total effective term of imprisonment of sixty-five years. On appeal,⁷ the defendant claims that the trial court improperly: (1) denied his motion to suppress certain handwritten notes that were seized from his car; (2) permitted the state to introduce evidence regarding his termination of a police interview prior to his arrest but after he had been advised of his Miranda⁸ rights; (3) permitted the state to introduce into evidence the testimony of a mental health worker regarding a statement that the defendant had made, which, he claims, was protected by the psychiatrist- patient privilege; (4) quashed a subpoena duces tecum issued by the defendant without conducting an in camera inspection of the materials sought thereunder; (5) instructed the jury on reasonable doubt; (6) concluded that the evidence was sufficient to support his conviction for felony murder; and (7) failed to instruct the jury regarding the elements of §§ 53-202k. We reject these claims and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Gayle Isleib, resided at 863 Tolland Turnpike in Manchester with her husband, Douglas Isleib. The victim was employed by a local Wal-Mart store, where she worked in the shoe department. On April 30, 1996, the victim worked the evening shift. The victim's husband expected the victim to return home from work at approximately 10:15 p.m. that evening.

At about 10:50 p.m., the victim drove her Jeep Cherokee (Jeep) hurriedly into her driveway. The defendant followed her into the driveway in his white Mitsubishi Mirage. The defendant, who worked with the victim in the Wal-Mart shoe department, exited his car and approached the victim's Jeep, carrying a twenty-two caliber Norinco rifle. The victim activated the automatic garage door and sounded her car horn for several seconds. The defendant then fired seven shots at the victim, five of which struck her in the head, three from very close range. The victim also suffered defensive gunshot wounds to her left hand.

After hearing the car horn and the gunshots, the victim's husband looked outside and saw the defendant standing next to the driver's side of the victim's car. The victim's husband immediately ran back inside to call 911. In the meantime, the defendant ran to his car, entered it and sped off. The victim's husband then went outside, where he found the victim unresponsive and slumped across the front seat of her Jeep. The victim died at the scene as a result of the bullet wounds to her head. Additional facts will be set forth as necessary.

I.

The defendant first contends that he is entitled to a new trial because the trial court improperly denied his motion to suppress three handwritten notes seized from his car⁹ in violation of the fourth amendment¹⁰ to the United States constitution. We disagree.

The trial court conducted an evidentiary hearing on the defendant's motion to suppress at which the following relevant facts were established. On May 2, 1996, officers of the Manchester police department obtained a search warrant for the defendant's impounded car.¹¹ In the course of executing the search warrant, the officers observed certain items that were not specifically mentioned therein, but which appeared to have evidentiary value, including a knife, an ice pick, duct tape, latex gloves, a cake dish and three handwritten notes. The notes were found in three separate locations in the defendant's car, namely, the glove compartment, an ashtray and under the front passenger seat.

Detective Joseph Amato of the Manchester police department found the first note in the front of the glove compartment as he opened the door to that compartment to search it.¹² After reading "[p]ortions" of the note, Amato concluded that it contained evidence relevant to the investigation and seized it.¹³ Amato then observed a second note, torn and partially burned, in an ashtray located immediately to the right of the driver's seat and in close proximity to the automatic gear shift.¹⁴ Amato did not attempt to read the note or remove it from the ashtray based on the note's condition. Instead, the police photographed the ashtray and its contents and removed the entire ashtray, including the note, from the car. Amato testified that he had seized the second note because of the likelihood that it contained trace evidence of the kind enumerated in the warrant. See footnote 11 of this opinion. The investigating officers also discovered a third handwritten note under the front passenger seat. Amato read portions of that note, but did not seize it at that time.

After seizing the first two notes, the police sought a second search warrant for the defendant's car. The application for the second warrant included the representation that, during the execution of the first warrant, several pieces of paper had been uncovered that contained information relating to a plan to kidnap the victim and to kill her husband.¹⁵ The police obtained the second warrant, which authorized the seizure of, among other things, "handwritten notes and instructions; cutting instruments; icepicks; rubber gloves; duct tape, glass cake dish... [and] wom[e]n's clothing...." The police then searched the defendant's car a second time and seized the third handwritten note that they had discovered under the front passenger seat while executing the first warrant.¹⁶

The defendant moved to suppress the notes discovered in the glove compartment and in the ashtray on the ground that the seizure thereof was not expressly authorized by the first search warrant.¹⁷ The defendant also sought to suppress the handwritten note found under the front passenger seat notwithstanding that the second search warrant authorized the seizure of that particular note. Specifically, the defendant maintained that the seizure of the third note was unlawful because the probable cause upon which the seizure of that note was predicated derived solely from the information contained in the notes that allegedly were seized illegally from the glove compartment and the ashtray, and from the information gleaned by the police in reading the third note prior to obtaining the second warrant.

At the conclusion of the suppression hearing, the trial court rejected the defendant's motion to suppress the three handwritten notes. With respect to the note that the police had discovered in the ashtray, the trial court determined that its seizure was authorized under the first search warrant because it "could reasonably be [a receptacle] for just the type of trace materials and fluids listed as the object of the warrant...." The court concluded that the police were authorized to seize the note found in the glove compartment under the plain view doctrine because that note had been discovered during the course of a lawful search and its evidentiary value was immediately discernible.¹⁸ Finally, although the trial court did not expressly state its reason for refusing to suppress the note that had been discovered under the front passenger seat, the defendant's failure to establish that the second search warrant was the product of prior police misconduct necessarily was fatal to his claim with respect to that note.¹⁹

We first address the defendant's claim regarding the seizure of the note found in the ashtray. The fourth amendment to the federal constitution requires that search warrants describe with particularity the place to be searched and the persons or things to be seized. "The [particularity requirement of the fourth amendment] was a direct response to the evil of the general warrant, one of the abuses by the Crown that led to the American revolution: [T]he problem [posed by the general warrant] is not that of intrusion per se, but of a general exploratory rummaging in a person's belongings.... [The fourth amendment addressed the problem] by requiring a particular description of the things to be seized. Andresen v. Maryland, 427 U.S. 463, 480, 96 S. Ct. 2737, 2748, 49 L. Ed. 2d 627 (1976)...."²⁰ (Citation omitted; internal quotation marks omitted.) State v. Hamilton, 214 Conn. 692, 706-707, 573 A.2d 1197, vacated on other grounds, 498 U.S. 933, 111 S. Ct. 334, 112 L. Ed. 2d 299 (1990). "This requirement makes general searches... impossible and prevents the seizure of one thing under a warrant describing another." (Internal quotation marks omitted.) Andresen v. Maryland, supra, 480.

However, "[t]he description of items to be seized in a warrant need only be as specific as the circumstances and...