State v. Ostroski

Citation201 Conn. 534,518 A.2d 915
CourtSupreme Court of Connecticut
Decision Date09 December 1986
PartiesSTATE of Connecticut v. Richard OSTROSKI.

Page 915

518 A.2d 915
201 Conn. 534
STATE of Connecticut
Supreme Court of Connecticut.
Argued Sept. 30, 1986.
Decided Dec. 9, 1986.

[201 Conn. 535]

Page 916

Kathleen Eldergill, Manchester, for appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom, on brief, were John M. Bailey, State's Atty., and Edward F. Spinella, Former Asst. State's Atty., for appellee (state).

Before [201 Conn. 534] PETERS, C.J., and ARTHUR H. HEALEY, DANNEHY, CALLAHAN and HENDEL, JJ.

[201 Conn. 535] ARTHUR H. HEALEY, Associate Justice.

During the night of April 11-12, 1977, a nineteen year old woman was brutally stabbed to death. Following his indictment, the defendant, Richard Ostroski, was charged with her murder in violation of General Statutes (Rev. to 1977) § 53a-54a(a) and (c). 1 After a trial by a panel of three judges of the Superior Court, 2 the defendant was found guilty and [201 Conn. 536] sentenced to a prison term of not less than twenty-five years nor more than life. On appeal from this conviction, the defendant argued that the trial court erred in denying his motion to suppress "potential testimony or other evidence that was obtained in violation of the constitution or laws of the United States or the State of Connecticut." State v. Ostroski, 184 Conn. 455, 456, 440 A.2d 166 (1981) (Ostroski I ). This court remanded the case to the trial court for further articulation on the issue of the defendant's custody. Id. On remand, the trial court found that the defendant was not in police custody until his formal arrest

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following his confession. On the defendant's appeal after remand, this court reversed the defendant's conviction, ruling that the defendant had been in state police custody during interrogation, that such custody was without probable cause, and that the trial court had erred in admitting into evidence his confession and certain physical evidence obtained from the defendant as a result of the interrogation. State v. Ostroski, 186 Conn. 287, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982) (Ostroski II ). The judgment was set aside and a new trial ordered.

After retrial, the jury, on April 19, 1983, found the defendant guilty of murder. The defendant was sentenced to a prison term of not less than twenty-five years nor more than life. The defendant has appealed.

The defendant raises four issues on appeal. He claims that the trial court erred in granting the state's pretrial motions for nontestimonial evidence; in denying his motion to dismiss and motion to dismiss the indictment; and in denying his request to charge on the lesser included offense of manslaughter in the first degree. [201 Conn. 537] The defendant also claims that he was denied effective assistance of counsel. We find no error.


In his initial claim of error, the defendant maintains that the trial court erred in granting the state's motions for nontestimonial evidence. 3

Before the defendant's second trial, the state, pursuant to Practice Book § 776, 4 filed nine motions for nontestimonial evidence. Three of the motions were directed toward obtaining the defendant's palm print, three toward obtaining a blood sample, and three toward obtaining a saliva sample, from which his blood type could be determined. Although the state already had in its possession a palm print and blood sample, these samples could not be used at trial because of our ruling in Ostroski II. In these motions the state sought an untainted source for this same evidence.

Each of the three sets of motions relied, respectively, on three different affidavits filed by the state. The first affidavit contained twenty-four paragraphs [201 Conn. 538] and detailed all the information known by the police prior to the defendant's illegal arrest. 5 The second [201 Conn. 539] affidavit contained

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the twenty-four paragraphs of the first affidavit and four additional paragraphs.[201 Conn. 540] 6 These additional paragraphs stated that the defendant had confessed to killing the victim and had admitted the crime to his friend, Stanley Allen, who was also a prisoner at that time. The third affidavit contained the first twenty-four paragraphs, the second four paragraphs and eight additional paragraphs. 7 In relevant[201 Conn. 541] part, these eight additional paragraphs in the third affidavit asserted that the defendant had been convicted of killing the victim and had written an incriminating poem in a prison newsletter. The multiple motions were filed, according to the state, in order to distinguish among three alternate bases for the requests.

The defendant objected to all nine motions. For purposes of clarity in reviewing this issue, however, and because the trial court granted all nine motions at the same time, we will treat the defendant's claim as though made on the basis of the third and most comprehensive affidavit. We therefore do not decide the legal sufficiency of the first or second affidavit. The defendant argued that it would be improper to grant the motions in that the affidavits supporting the motions were insufficient. The defendant argued that the first twenty-four paragraphs, which referred only to information obtained prior to the defendant's illegal arrest, failed to support a finding of probable cause and that the remainder of the affidavit, paragraphs 25 through 36, could not be considered because it relied upon information seized pursuant to the defendant's illegal arrest and, therefore, was improperly included in the affidavit. Specifically, the defendant argued that the use of [201 Conn. 542] (1) the defendant's initial confession to the police following his illegal arrest (paragraph 25), (2) the subsequent admission made to Allen (paragraph 28), (3) the fact of the defendant's conviction in the first trial (paragraph 33), and (4) the fact that the defendant published a poem in a prison newsletter admitting his guilt (paragraph 35), to support a finding of probable cause was improper in that all of that information constituted "fruits" of the illegal arrest, and, therefore, could not be used as a basis for obtaining additional evidence.

The trial court reviewed the affidavits submitted by the state and, on the basis of the facts contained therein, found that the evidence included in the affidavits was adequate to support the motions. The court, without any articulation of the specific evidence in the affidavits upon which it was

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relying, ruled that the evidence included in the affidavits was sufficiently attenuated so as to be purged of the taint from the defendant's illegal arrest. Accordingly, the court granted all nine motions, thus allowing the state to acquire the nontestimonial evidence.

At the outset, we note that the fact that the state, at the time of its motions, had in its possession an illegally obtained palm print and a blood sample, both of which were inadmissible at trial on the basis of our decision in Ostroski II, does not preclude the state from acquiring, through an untainted source, a second palm print and blood sample. Bynum v. United States, 274 F.2d 767 (D.C.Cir.1960). The exclusionary rule applies to suppress evidence obtained in violation of the fourth amendment to the United States constitution. Its sweep is not so broad, however, that it mandates suppression of evidence obtained independently of the illegality. Segura v. United States, 468 U.S. 796, 813-16, 104 S.Ct. 3380, 3390, 82 L.Ed.2d 599 (1984); see Bynum v. United States, supra (fingerprints obtained independently of the illegality admissible, despite suppression [201 Conn. 543] of illegally obtained fingerprints); Commonwealth v. Davenport, 462 Pa. 543, 342 A.2d 67 (1975) (evidence of blood type admissible where blood type evidence gained from second blood sample was derived from source independent of the illegality); State v. Kelly, 718 P.2d 385, 392 (Utah 1986) (suppression properly denied where source of search warrant independently legal and unrelated to illegal impounding of premises).

In order to acquire the nontestimonial evidence, the state must overcome two hurdles. First, because the acquisition of the palm print, the blood sample and the saliva is a search; Davis v. Mississippi, 394 U.S. 721, 724, 89 S.Ct. 1394, 1396, 22 L.Ed.2d 676 (1969) (fingerprints); Schmerber v. California, 384 U.S. 757, 766-72, 86 S.Ct. 1826, 1833-37, 16 L.Ed.2d 908 (1966) (blood); the fourth amendment requires that the state establish probable cause. Assuming this requirement is satisfied, the state must also meet the requirements of Practice Book § 776, namely, that "(1) the evidence sought may be of material aid in determining whether the defendant committed the offense charged; and (2) the evidence sought cannot practicably be obtained from other sources." The defendant claims that the state has failed to meet the fourth amendment requirement because the affidavit supporting the state's motions fails to support the necessary finding of probable cause. The defendant also claims that the state has failed to satisfy the requirements of § 776. We will address the defendant's claims seriatim.


The defendant claims that the affidavit fails to support a finding of probable cause as required by the fourth amendment. The defendant concedes that the first twenty-four paragraphs of the affidavit are untainted by the illegal arrest and can be used to support a finding of probable cause. The thrust of the defendant's [201 Conn. 544] argument, however, is that the court erred in considering the information contained in paragraphs 25, 28, 33 and 35 because that information was tainted as a fruit of his illegal arrest and without this information the affidavit failed to support a finding of probable cause.

We first will address the defendant's claim as it relates to the information contained in paragraph 25, the defendant's confession to the state police, and paragraph 33,...

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