State v. Oquendo, No. 14215

• Court: Supreme Court of Connecticut
• Writing for the Court: Borden, J., with whom Callahan; Before PETERS; GLASS; In this opinion PETERS, C.J., and BERDON; BORDEN, Associate Justice with whom CALLAHAN
• Citation: 613 A.2d 1300,223 Conn. 635
• Parties: , 61 USLW 2179 STATE of Connecticut v. Ferdinand OQUENDO.
• Decision Date: 25 August 1992
• Docket Number: No. 14215

Page 1300

613 A.2d 1300 223 Conn. 635, 61 USLW 2179 STATE of Connecticut
v.
Ferdinand OQUENDO. No. 14215. Supreme Court of Connecticut. Argued April 30, 1992.
Decided Aug. 25, 1992.

Borden, J., with whom Callahan, J., joined, dissented with opinion.

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[223 Conn. 637] Lauren Weisfeld, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Judith Rossi, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Herbert Carlson, Asst. State's Atty., for appellee (state).

Before [223 Conn. 635] PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

[223 Conn. 637] GLASS, Associate Justice.

After a trial to a jury, the defendant, Ferdinand Oquendo, was convicted of the crimes of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134(a)(4), burglary in the second degree in violation of General Statutes § 53a-102(a), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48(a) and 53a-134(a)(4) and conspiracy to commit burglary in the second degree in violation of General Statutes §§ 53a-48(a) and 53a-102(a). ¹ The defendant was acquitted of the charges of murder in violation of General Statutes § 53a-54(a), and conspiracy to commit murder in violation of General Statutes §§ 53a-48(a) and 53-54a(a). The trial [223 Conn. 638] court sentenced the defendant to a total effective term of imprisonment of fifty years. From this judgment of conviction, the defendant appealed pursuant to General Statutes § 51-199(b).

On appeal, the defendant claims that: (1) the trial court improperly denied his motions to suppress certain evidence and the identification of him as the fruits of an illegal stop and seizure; (2) the trial court denied him his constitutional right to confrontation when a hearsay statement made by his brother was admitted into evidence, because his brother did not testify and, therefore, could not be cross-examined; (3) the prosecutor improperly commented on the defendant's election not to testify, in violation of the defendant's constitutional and statutory right to remain silent; and (4) the trial court improperly instructed the jury on reasonable doubt. We find merit in the defendant's first [223 Conn. 639] claim and, therefore, we reverse the judgment of conviction and remand the case to the trial court for a new trial.

The jury could reasonably have found the following facts. In the early morning

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hours of August 25, 1988, the Wethersfield police department responded to a telephone call from the Almar Motel in Wethersfield. At the motel, police found a man, later identified as Domingo "Billy" Huertas, lying outside of room 107, bleeding from a wound in his chest. Huertas was taken to a local hospital and given emergency treatment, but he died shortly after his arrival. ² After securing aid for Huertas, the police followed a trail of blood to room 100. The doorjamb of room 100 had been broken and the lock plate was on the ground, indicating that the door had been forced open. Inside the room, police observed more blood and the room in disarray. They found two firearms, a .38 caliber semi-automatic handgun and a .22 caliber handgun. Behind the motel the police found a green cloth bag on the ground. The registration card for room 100 indicated that it had been rented for one week on August 22, 1988, by Charles Morales.

On the evening of August 24, 1988, Jose Huertas, who was the victim's brother, Morales, the victim and a man named "Edgar" were at Morales' home in Hartford. Morales gave the victim a .38 caliber handgun and put a .22 caliber handgun into a small box along with a kilogram of cocaine. The four men then went to the Almar Motel, where they drank beer and smoked "crack" cocaine. After approximately one and one-half hours, Jose, Edgar and Morales left the motel. The victim remained in the motel room with the cocaine and the handguns. Additional facts will be detailed in connection with the consideration of specific issues.

[223 Conn. 640] I

The defendant first claims that the trial court improperly denied his motions to suppress certain physical evidence and identification evidence. On August 29, 1988, four days after the homicide of Huertas, Wallingford police officer William Birney seized cocaine from a gym-type duffel bag he found in the woods off Center Street in Wallingford. Birney subsequently identified the defendant as the man whom he had seen toss the bag into the woods. The defendant sought to suppress the cocaine and Birney's identification of him on the basis that they were the fruits of an illegal seizure, in violation of the defendant's rights under the fourth amendment to the United States constitution and article first, §§ 7, 8 and 9 of the Connecticut constitution. ³ The trial court denied the defendant's motions to suppress. Relying on the provisions of our state constitution, we conclude that the trial court's ruling was improper.

The trial court held a hearing on the defendant's motions to suppress, at which Birney was the only witness. Birney, a patrolman with approximately two and one-half years of experience at the time relevant to this appeal, testified as follows. On August 29, 1988, at [223 Conn. 641] approximately 12:50 a.m., Birney was patrolling in the area of East Main Street and Center Street in Wallingford in a marked police cruiser. Birney was wearing a uniform and a badge and was armed with a nightstick and a firearm. Birney described the area as primarily residential, with a shopping plaza that contains several small businesses. At the time of the patrol, all of the businesses

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were closed. Birney was aware that there had recently been a series of burglaries on East Main Street.

As Birney drove east on East Center Street, he saw a man and woman walking toward him. He recognized the woman as Nanette Williams, whom he recognized as having recently been arrested on larceny and burglary charges. Although it was "very warm" out, Williams was wearing a "thick jacket." Her male companion, later identified as the defendant, was wearing a zipped "winter" jacket and carrying a tan, "gym-type" duffel bag. As Birney drove past Williams and the defendant, they "kind of looked at each other" and appeared to quicken their pace. Birney was familiar with Wallingford's "street people" and had never seen the defendant. Birney thought that it was "strange" that the defendant was wearing a winter jacket when it was "so warm out." It was not raining at the time. Birney knew from experience that burglars often wear heavy clothing to protect themselves from injury when they break windows. He had a "hunch" that Williams and the defendant had recently committed or were about to commit a burglary.

Birney turned the cruiser around and drove back in the direction of Williams and the defendant. He stopped about seven yards away from them, exited the cruiser and stood by the driver's side door. Birney asked Williams what she and the defendant were doing. She replied that they were coming from the Junction Cafe. Birney knew that they were, in fact, walking in the [223 Conn. 642] direction of the Junction Cafe and that the cafe had closed at 11 p.m., nearly two hours earlier. Birney then asked the defendant to identify himself and the defendant answered, "Freddy Velez." Both Williams and the defendant appeared nervous and kept glancing at each other. Birney asked the defendant to approach the cruiser. The defendant handed the duffel bag to Williams and stepped toward Birney. Birney instructed the defendant to bring the bag with him. The defendant then "grabbed the bag away from [Williams], gave a quick look up and down, and ran away." Birney yelled to the defendant to "stop" and pursued him on foot through a yard and into a wooded area. Birney saw the defendant throw down the duffel bag as he entered the wooded area. Birney retrieved the bag, which was open. Inside the duffel bag he saw two plastic bags containing white powder, which subsequently tested positive for cocaine.

The following morning, Birney and other Wallingford police officers searched the wooded area. In the area where Birney had last seen the defendant, another officer found a wallet containing a Connecticut identification card bearing the defendant's photograph and the name "Raphael Torres." As a result of the evidence retrieved by Birney and other Wallingford police officers, along with other evidence, the defendant was later arrested and charged with various crimes related to the homicide of Huertas.

The trial court concluded that an investigatory stop had occurred at some point after Birney exited his cruiser and began to question the defendant and Williams. The trial court found that Birney had based his conduct on his knowledge of recent burglaries in the area, his recognition of Williams as having been arrested recently for burglary and larceny, his experience that burglars often wear heavy outer garments and Williams' responses to his questions. The trial [223 Conn. 643] court found further that the defendant's flight had provided Birney with additional grounds to stop the defendant. The trial court concluded that Birney had had a reasonable and articulable suspicion to believe that the defendant had been, or was about to be, engaged in criminal activity and, therefore, his stop of the defendant had been justified. Finally, the trial court concluded that the defendant had retained no reasonable expectation of privacy in the duffel bag once he had discarded it. ⁴

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[223 Conn. 644] In his appeal to this court, the defendant claims that Birney made an investigatory stop without a reasonable and articulable suspicion, in violation of the fourth amendment to the United States constitution and article first, §§ 7, 8 and 9 of the Connecticut constitution. The state argues...