State v. Payne, (AC 29828) (Conn. App. 5/25/2010)

• Decision Date: 25 May 2010
• Docket Number: (AC 29828).
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT, <I>v.</I> FREDERICK PAYNE.

Page 1

STATE OF CONNECTICUT,v.

FREDERICK PAYNE.

(AC 29828).

Appellate Court of Connecticut.

Argued September 22, 2009.

Officially released May 25, 2010.

Appeal from Superior Court, judicial district of New Haven, Holden, J.

Christopher Y. Duby, special public defender, for the appellant (defendant).

Robin S. Schwartz, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Brian K. Sibley, Sr., assistant state's attorney, for the appellee (state).

Gruendel, Harper and Robinson, Js.

Opinion

HARPER, J.

The defendant, Frederick Payne, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree as an accessory in violation of General Statutes §§ 53a-103 and 53a-8 (a), larceny in the fifth degree as an accessory in violation of General Statutes §§ 53a-125a and 53a-8 (a), engaging the police in a pursuit in violation of General Statutes § 14-223 (b) and interfering with an officer in violation of General Statutes § 53a-167a (a).¹ The defendant claims (1) that the court improperly denied his motion to suppress evidence seized by the police from an automobile he had been driving during the events at issue and (2) that the court's consciousness of guilt instruction likely misled the jury. We decline to review either claim and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 4:25 a.m. on May 20, 2006, the defendant broke into a New Haven package store. The defendant removed alcoholic beverages and boxes of cigarettes from the store and placed them in the passenger compartment of an automobile parked nearby. After the defendant's activities tripped the store's alarm system and a resident living near the store dialed 911 to report the break-in, police officers headed to the store to investigate. A police officer en route to the scene in his police cruiser observed the defendant driving from the store at a high rate of speed. The officer, who had activated the siren and police lights on his cruiser, pursued the defendant for a brief period of time along city streets before the defendant crashed the automobile that he was operating into the front of a residence. The automobile came to rest on the steps and front porch of the residence, causing significant property damage.

Following the crash, the defendant exited the automobile and fled on foot into the backyard of the residence. The officer who was pursuing the defendant ordered the defendant to stop, but the defendant did not obey this command. The officer pursued the defendant on foot, and, following a brief struggle during which the defendant pushed and struck the officer, the officer physically restrained him. After searching the automobile driven by the defendant at the crash site following the defendant's apprehension, police seized several unopened containers of alcoholic beverages and cigarettes, valued at $301.13, from the passenger compartment of the automobile. The defendant's arrest followed.

I

First, the defendant claims that the court improperly denied his motion to suppress the evidence, including the alcoholic beverages and cigarettes, seized by the police following their warrantless search of the automobile he was driving. We conclude that the record is not adequate to review this claim.

The defendant filed the motion to suppress prior to the presentation of evidence, and, outside of the jury's presence, the court held an evidentiary hearing on the motion. The defendant claimed that the items seized were the fruits of an unlawful search under the federal and state constitutions.² At the conclusion of the hearing, the state argued that the police action was constitutionally permissible on a variety of grounds. In particular, the prosecutor asserted that the circumstances at issue, involving the defendant's flight from the crashed automobile, supported an "abandonment claim . . . ." In this regard, the prosecutor stated that, at the time of the search, the police did not have any information concerning the owner of the automobile, as "the [police check of the] registration did not come back to [the defendant]," and it was not until the suppression hearing that the defendant claimed ownership of the automobile.

In an oral ruling following the hearing, the court denied the motion to suppress. The record contains the unsigned transcript of that ruling. The transcript reflects the court's findings with regard to the circumstances surrounding the search and seizure generally, as well as the court's conclusion that four independent bases supported the legality of the search and seizure. The court referred to its reliance on the plain view exception to the warrant requirement, the automobile exception to the warrant requirement, the inevitable discovery doctrine and "abandonment . . . ." On appeal, the defendant challenges the court's conclusion that any of these four principles applied to the search and seizure at issue. To prevail, the defendant must demonstrate that none of the four legal bases on which the court relied supported the denial of his motion to suppress.

Under our rules of practice, the trial court is required to state its decision, either orally or in writing, in ruling on motions to suppress evidence. Practice Book § 64-1 (a) (4). The decision of the trial court "shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor. . . ." Practice Book § 64-1 (a). "It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. . . ." Practice Book § 61-10.

As a preliminary matter, the form of the court's decision that appears in the record is not proper; the defendant has not presented this court with a memorandum of the court's oral decision that has been signed by the trial judge in accordance with Practice Book § 64-1 (a). The record does not reflect that the defendant attempted to remedy this defect in accordance with the procedure set forth in Practice Book § 64-1 (b). This defect in the presentation of the appeal, however, does not hamper our review of the present claim because we are able to identify readily the court's decision, encompassing its findings, in the transcript before us. See, e.g., State v. Muhammad, 117 Conn. App. 181, 184 n.1, 979 A.2d 501 (2009).

With regard to its ultimate conclusion that "abandonment" was a ground on which to deny the motion to suppress, the court stated the following in its decision: "Counsel indicates for the state abandonment. Given the fact that the testimony reveals that upon attempting to elude the police and not responding to their call— to their stop, either in the automobile as well as on foot, that he, in fact, abandoned the property and therefore relinquished the knowing right to that property by his abandonment. Further testimony is that, at least he claims he purchased the vehicle . . . and it was not registered and the owner was unknown at the time. At any rate, to the extent that the motion to suppress the items seized in the search—there are a variety of bases to support the search, including the plain view, automobile exceptions, [that] support the police conduct in terms of the automobile, including if you will, abandonment as well as inevitable discovery and the plain view [exception to the warrant requirement] supporting the seizure by the patrol officer."

The defendant claims that the court improperly relied on the abandonment doctrine as such doctrine is applied in search and seizure law. The defendant argues that the court impermissibly concluded as a matter of law that, by virtue of his flight from the automobile, that he had relinquished a right to privacy in the items seized from the automobile. Essentially, the defendant argues that the court improperly concluded that his flight from the automobile "equate[d] to the abandonment of a privacy right for purposes of search and seizure analysis."

In reviewing the court's ultimate conclusion that the doctrine of abandonment legally justified the search and seizure, we first must ascertain the factual and legal basis of the court's decision. "Our standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . ." (Internal quotation marks omitted.) State v. Gonzalez, 278 Conn. 341, 347-48, 898 A.2d 149 (2006).

After carefully reviewing the court's entire decision, we are unable to ascertain the factual or legal basis for the court's reliance on the abandonment doctrine. The court concluded that the defendant had "relinquished the knowing right to [the] property by his abandonment." This statement, however, reasonably is susceptible to different interpretations. It is unclear whether the court's reference to "property" encompassed the automobile or the contents of the automobile. On a more fundamental level, it is unclear whether the court was referring to the defendant's privacy interest in the property or his possessory interest in the property. "[I]t is incumbent upon the [defendant] to take the necessary steps to sustain [his] burden of providing an adequate record for appellate review. . . . Our role is not to guess at possibilities . . . but to review claims based on a complete factual record developed by a trial court.. . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by [any appellate court] respecting [...