State v. Mullins
| Decision Date | 12 August 2008 |
| Docket Number | No. 18097.,18097. |
| Citation | 952 A.2d 784,288 Conn. 345 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Kenneth MULLINS. |
Pamela S. Nagy, special public defender, for the appellant (defendant).
Nancy L. Chupak, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Joseph Valdes, assistant state's attorney, for the appellee (state).
ROGERS, C.J., and KATZ, PALMER, VERTEFEUILLE and SCHALLER, Js.
The defendant, Kenneth Mullins, appeals from the judgment of conviction, rendered after a jury trial, of: (1) possession of narcotics with intent to sell in violation of General Statutes § 21a-277(a);1 (2) possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a(b);2 and (3) possession of narcotics in violation of General Statutes § 21a-279(a).3 The defendant claims that the trial court improperly: (1) denied his motion to suppress the oral and written statements that he had made to the police; (2) permitted the police officers to testify that they had a valid legal reason for entering the defendant's home; and (3) denied the defendant's motion to disclose the identity of the confidential informant relied on by the police. The defendant also claims that his convictions for both possession of narcotics with intent to sell under § 21a-277(a) and possession of narcotics under § 21a-279(a) violate the guarantee against double jeopardy under the federal and state constitutions. We agree only with the defendant's double jeopardy claim, and we affirm the judgment in all other respects.
The record reflects the following undisputed facts and procedural history. On July 13, 2004, Stamford police officer Diedrich Hohn and seven other officers executed a search warrant for a residential property located at 33 Sheridan Street in Stamford. The warrant was supported by an affidavit attesting to information that had been provided by a confidential informant. The confidential informant had told the police that a person named "Kenny," later identified by the informant as the defendant, was selling heroin out of his home at 33 Sheridan Street. The search warrant affidavit described two controlled purchases of heroin from the defendant made by the confidential informant.
Hohn and his fellow officers arrived at the defendant's home on July 13, 2004, at approximately 7 p.m. to conduct the search. They entered through the front entry door of the row house apartment with weapons drawn and quickly swarmed through to secure the premises, yelling "police search warrant" and kicking in closed interior doors as they went. The defendant was found in an upstairs bedroom with his boyfriend, Dion McBride. As the men were being ordered to be handcuffed, Hohn saw the defendant throw a tissue to the floor. Both men were handcuffed and brought downstairs. Two other individuals who were present elsewhere in the house also were detained. Once the house had been secured, the police proceeded to search the bedroom. Evidence discovered in the search included a tissue on the floor containing eighteen bags of heroin, thirty bags of heroin found in a dresser drawer, approximately $900 in cash and a bank statement bearing the defendant's name. At the scene, under circumstances that are disputed, the defendant stated that the drugs were his and not McBride's. The defendant was then placed under arrest. At the police station, after receiving Miranda warnings,4 the defendant wrote and signed a statement attesting that the heroin the police had found was his and that he had been selling it.
On the basis of the evidence discovered in the search, the defendant was charged in a long form information with: (1) possession of narcotics within intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b);5 (2) possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of § 21a-278a(b); and (3) possession of narcotics in violation of § 21a-279(a). Prior to trial, the defendant filed: (1) a motion to suppress his oral and written statements to the police; (2) a motion in limine to prohibit witnesses from testifying that the police entry into the house had been pursuant to a search warrant; and (3) a motion to identify the confidential informant.
The trial court formally denied all three motions, but nonetheless precluded the state from eliciting testimony regarding the search warrant. See footnote 12 of this opinion and the accompanying text. During his jury trial, the defendant offered the defense that, although the narcotics were his, they were for his personal use and were not for sale. The jury found the defendant guilty of possession of narcotics and possession of narcotics with intent to sell within 1500 feet of a public housing project. The jury thereafter found the defendant not guilty of possession with intent to sell by a person who is not drug-dependent, but found him guilty of the lesser included offense of possession of narcotics with intent to sell. In accordance with the verdict, the trial court sentenced the defendant to a total effective sentence of five years imprisonment with five years special parole.6 The defendant thereafter appealed from the trial court's judgment to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.
On appeal, the defendant makes the following claims: (1) the trial court improperly denied his motion to suppress his oral and written statements because they were products of coercion, and because the oral statement was made without prior Miranda warnings; (2) the trial court improperly allowed the police to testify that they had a valid legal reason to enter the defendant's house despite the fact that this testimony was irrelevant and unfairly prejudicial; (3) the trial court improperly denied his motion to disclose the identity of the confidential informant despite the facts that the state had failed to invoke its privilege to protect the informant's identity and that the information may have been necessary for his defense; and (4) the convictions for possession of narcotics with intent to sell and possession of narcotics violate the guarantee against double jeopardy under the state and federal constitutions. The state disputes all of the defendant's claims, with the exception of the double jeopardy claim, which the state concedes. We agree with the state.
We first turn to the defendant's claims relating to whether the trial court improperly denied his motion to suppress his oral statement at the house and his written statement at the police station. First, the defendant asserts that both his oral and written statements were involuntary because they were the product of police coercion. Second, he contends that his oral statement was obtained illegally because it was the result of a custodial interrogation that occurred before he had been given Miranda warnings. Related to this second claim, although he does not dispute that he had received Miranda warnings before giving his later written statement, he also contends that the written statement was inadmissible "because the taint from the first illegal confession had not dissipated" by the time the written statement was taken. The state contends in response, inter alia, that the trial court properly denied the defendant's motion because the defendant did not preserve the issue of coercion and he had not been subjected to coercion or custodial interrogation with respect to either his oral or written statement.7 We agree with the state.
The record reveals the following additional facts and procedural history that are relevant to our resolution of these claims. At the hearing on the motion to suppress, Hohn offered the following testimony about the circumstances surrounding the defendant's oral statement. After Hohn found drugs in the defendant's bedroom pursuant to the search, he proceeded downstairs to arrest the defendant. Hohn first testified that he had told the defendant what the officers found in the bedroom, and then the defendant indicated that he wished to speak to Hohn. When later questioned, however, Hohn stated that he had planned to inform the defendant of his findings, but before he could do so, the defendant called Hohn over to speak with him. Hohn specified that the defendant had "motioned with his head, and then said that he wanted to speak with me," and that Hohn had not said anything before the defendant had motioned to him. According to Hohn, the defendant then stated that "all that stuff in that room is mine and not my boyfriend ... McBride's." Hohn asked the defendant if he was willing to give a voluntary statement, to which the defendant responded affirmatively. The defendant then was transported to the Stamford police department, and Hohn did not see him again.
Officer Steve Murphy and Sergeant Christopher Gioielli of the Stamford police department, both of whom also had been present at the defendant's house, offered the following testimony about the circumstances of the defendant's written statement at the police station. Murphy stated that, while the defendant was being processed at the police station, he said that he wanted to give a statement. Gioielli began the statement process with the defendant at approximately 11 p.m. The defendant read his Miranda rights from the statement form and Gioielli had him initial and sign a written acknowledgment of those rights on the form. Murphy came in later to complete the statement process with the defendant. After the defendant had completed his statement, the defendant and Murphy signed below the statement, and Gioielli notarized the statement. Murphy noted on the form the time that the statement was complete, 11:25 p.m., and the defendant and Murphy again signed the statement form.
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