State v. Reddick

• Decision Date: 10 May 1988
• Docket Number: No. 13148,13148
• Citation: 541 A.2d 1209,207 Conn. 323
• Parties: , 56 USLW 2719 STATE of Connecticut v. Earl REDDICK.
• Court: Connecticut Supreme Court

Page 1209

541 A.2d 1209

207 Conn. 323, 56 USLW 2719

STATE of Connecticut v. Earl REDDICK.

No. 13148.

Supreme Court of Connecticut.

Argued Jan. 13, 1988.

Decided May 10, 1988.

Kent Drager, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).

Roland D. Fasano, Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (State).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

CALLAHAN, Associate Justice.

The defendant was charged in a substitute information with aiding and abetting a robbery in the first degree in violation of General Statutes §§ 53a-134(a)(4) and 53a-8, conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48, and possession of a sawed-off shotgun in violation of General Statutes § 53a-211. ¹ A jury acquitted him of aiding and abetting a robbery and of conspiracy but found him guilty of possession of a sawed-off shotgun. He was sentenced by the trial court to a term of five years imprisonment. We find error.

The robbery and conspiracy charges resulted from the robbery of Bask's Liquor Cabinet at 432 Shelton Avenue in New Haven at about 1:30 p.m. on June 28, 1985. In that robbery, a lone black male entered the liquor store carrying a double-barreled, sawed-off shot gun concealed in a green trash bag. Displaying the shotgun, he forced a clerk, Barbara DiBenedetto, into a back room where she was made to sit on the floor. While the black male with the shotgun stood guard, another person, whom DiBenedetto heard but did not see, entered the store and emptied the cash register. DiBenedetto later discovered that her handbag had also been taken.

The defendant was linked to the robbery as a result of the execution of a search warrant at a two-family house located at 124-126 Read Street in the Newhall section of New Haven. The information in the affidavit relied upon to secure the issuance of the search warrant was obtained by Detective Michael Bouchard of the Hamden police department and Detective Douglas McDonald of the New Haven police department who were jointly investigating a number of store holdups in the Hamden-New Haven area by a team of black males.

On July 3, 1985, at approximately 9:30 a.m., while conducting the investigation, Bouchard came upon an older, brown Cadillac parked in front of 125 Read Street in New Haven. The Cadillac fit the description of a car observed at the scene of the holdups that McDonald and Bouchard were investigating. Bouchard summoned McDonald and together they conducted a surveillance of the automobile until it was approached by the defendant and Terrance Bethea, both black males. The detectives confronted and questioned the two men briefly. It was then discovered, through a warrant check, that there was an outstanding arrest warrant for Bethea on a robbery charge. Bethea was taken into custody and brought to New Haven police headquarters where he subsequently spoke to police and gave a statement.

Bethea told the police that he had spent the previous night with the defendant in the defendant's bedroom on the third floor of the defendant's mother's apartment at 124-126 Read Street. While there, he had observed a double-barreled, sawed-off shotgun in the drawer of a dresser located in the defendant's third floor bedroom. He said that in the bedroom he had also seen a pair of sunglasses with bright red frames and a red safety strap. Similar glasses had been described as having been worn by one of the perpetrators of the robberies that were under investigation. Bethea also said that he had seen the glasses a few days earlier on Preston Wright, the boyfriend of the defendant's sister.

As a result of this and other information supplied by Bethea, McDonald and Bouchard obtained a search warrant for the defendant's person, the brown Cadillac and "[t]he premises of 124-126 Read Street, New Haven, Second and Third Floor." (Emphasis added.) When the detectives executed the search warrant they located the sunglasses in a woman's purse hanging on the wall of the third floor bedroom. Bouchard also found DiBenedetto's handbag, checkbook, and some of her personal papers, as well as the cash drawer from the liquor store register and a green trash bag inside another trash bag located directly outside the defendant's bedroom door. In addition, DiBenedetto's keys, which also had been taken in the robbery, were discovered on top of a dresser in the bedroom.

Despite a diligent search, however, the shotgun was not found on either the second or third floors of 124-126 Read Street. Those floors constituted the living area of the defendant's mother's apartment and were the only areas of the house the warrant authorized the police to search. McDonald, however, unilaterally decided to expand the search and descended to the basement. The basement was accessible from both the defendant's mother's second floor apartment and the first floor apartment that was occupied by an elderly woman, a double amputee, confined to a wheel chair. The basement was unpartitioned and housed a clothes washer and dryer. McDonald found the sawed-off shotgun hidden in the tub of the washer. After consulting with his superior and the judge who signed the search warrant, McDonald seized the shotgun. The defendant was subsequently charged with its possession.

Prior to trial, a motion to suppress the shotgun and the items recovered from the trash bag was heard and denied. ² At trial, the shotgun was admitted into evidence and identified by DiBenedetto as similar to the shotgun she saw during the robbery and by McDonald as the shotgun he had seized in the basement of the house where the defendant's mother lived. DiBenedetto also identified the personal property that was recovered in the search as hers and testified that the sunglasses found were similar to those worn by the robber who had confronted her. She testified further, however, that the defendant was definitely not the robber with the shotgun. ³

On appeal, the defendant has raised several claims of error. For the purposes of this appeal we think it necessary to address three of those claims.

I

We first address the defendant's claim that there was insufficient evidence to convict him of possession of the sawed-off shotgun.

In reviewing a sufficiency of the evidence claim, we view the evidence in the most favorable light possible, with a view toward sustaining the verdict of the jury. State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Gabriel, 192 Conn. 405, 421, 473 A.2d 300 (1984); State v. Raffone, 161 Conn. 117, 125, 285 A.2d 323 (1971). We cannot retry the case. State v. Rodriquez, 200 Conn. 685, 693, 513 A.2d 71 (1986); Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). Nor can we "sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury's opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility." State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984).

The state was not required to prove that the defendant had actual physical possession of the shotgun. State v. Gonski, 155 Conn. 463, 467, 232 A.2d 483 (1967). It was necessary only to prove that he had exercised dominion and control over it and had knowledge of its presence and character. State v. Kas, 171 Conn. 127, 130, 368 A.2d 196 (1976); State v. Williams, 169 Conn. 322, 335, 363 A.2d 72 (1975); State v. Harris, 159 Conn. 521, 531, 271 A.2d 74 (1970), cert. dismissed, 400 U.S. 1019, 91 S.Ct. 578, 27 L.Ed.2d 630 (1971).

After a careful review of the record we cannot say that the jury could not reasonably have concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify a verdict of guilty beyond a reasonable doubt.

II

We next address the defendant's claim that the trial court erred by denying his motion to suppress the shotgun that was seized as a result of McDonald's warrantless search of the basement. ⁴ The state contends that, because the defendant did not pay rent, had no possessory interest in his mother's apartment, and had no reasonable expectation of privacy in the basement, he "lacked standing to challenge the seizure of the sawed-off shotgun."

The defendant claims that as a resident of his mother's apartment he had a reasonable expectation of privacy in the apartment and its appurtenances. He argues, therefore, that absent exigent circumstances, or some other exception to the warrant requirement, not present here, the search of the basement and the seizure of the shotgun violated his rights under the fourth amendment to the United States constitution and the shotgun should not have been admitted into evidence. We agree with the defendant.

A person is entitled to fourth amendment protection anywhere he resides where he has a reasonable expectation of privacy. Commonwealth v. Strickland, 457 Pa. 631, 634, 326 A.2d 379 (1974); 4 W. LaFave, Search and Seizure § 11.3(a), p. 285. A person "who resides at a private residence with permission of the [lessee] as a guest or invitee may demonstrate an expectation of privacy in the premises legally sufficient to support a challenge to a police search." United States v. Cassity, 720 F.2d 451, 458 (6th Cir.1983), vacated and remanded, 468 U.S. 1212, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984), rev'd on other grounds, 604 F.Supp. 1566 (E.D.Mich.1985), aff'd, 807 F.2d 509 (6th Cir.1986); United States v. Underwood, 717 F.2d 482, 486 n. 1 (9th Cir.1983) (Skopil, J., dissenting), cert. denied, 465 U.S. 1036, 104 S.Ct. 1309, 79 L.Ed.2d 707 (1984); see also United States v. Torres, 705 F.2d 1287, vacated and remanded on other grounds, 718 F.2d 998 (11th...