State v. Rodriguez, 13900

• Decision Date: 26 September 1995
• Docket Number: No. 13900,13900
• Citation: 39 Conn.App. 579,665 A.2d 1357
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Richard RODRIGUEZ.

Page 1357

665 A.2d 1357

39 Conn.App. 579

STATE of Connecticut v. Richard RODRIGUEZ.

No. 13900.

Appellate Court of Connecticut.

Argued Feb. 16, 1995.

Decided Sept. 26, 1995.

Defendants Petition for Certification Granted, limited to

the following States Petition for Certification

Denied ^* Dec. 21, 1995.

Kent Drager, Assistant Public Defender, for appellant (defendant).

Nancy Gillespie, Deputy Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and David P. Gold, Supervisory Assistant State's Attorney, for appellee (state).

Before HEIMAN, SCHALLER and FRANCIS X. HENNESSY, JJ.

FRANCIS X. HENNESSY, Judge.

The defendant, Richard Rodriguez, appeals ¹ from the judgment of conviction, rendered after a trial by jury, of two counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(2), one count of conspiracy to commit robbery in the third degree in violation of General Statutes § § 53a-48(a) and 53a-136, one count of burglary in the third degree in violation of General Statutes § 53a-103, one count of conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-48(a) and 53a-103, two counts of kidnapping in the first degree in violation of General Statutes §§ 53a-92(a) and 53a-8, two counts of larceny in the second degree in violation of General Statutes §§ 53a-123(a) and 53a-8, and one count of larceny in the third degree in violation of General Statutes §§ 53a-124(a) and 53a-8. The defendant claims that the trial court improperly (1) denied his motion to suppress evidence, (2) found that there was sufficient evidence to support his convictions, (3) ruled on the admissibility of certain statements of the deceased victim, and (4) instructed the jury on intoxication in relation to the state's burden of proving specific intent. The defendant also claims that his due process rights were violated by (5) prosecutorial misconduct and (6) the imposition of improper sentences for his conspiracy conviction. ² Because we find that the trial court improperly denied the defendant's motion to suppress, we reverse the judgment of conviction.

The jury could reasonably have found the following facts. On December 2, 1991, Aimee Harris and William Harris, residents of 2330 Shepard Avenue in the town of Hamden, were victims of a robbery in their home perpetrated by two men wearing masks, one of whom was armed with a gun. During the course of the robbery, the victims had property taken from their persons as well as their home. In addition, the robbers bound the Harrises with neckties. Within minutes after the robbers left, the victims freed themselves and called 911. The Hamden police arrived shortly thereafter, and broadcast the details of the robbery over the police radio.

As Sergeant John Kennelly of the Hamden police department approached the area of the robbery, he observed a red car parked on the shoulder of the road approximately twenty-five feet from the Harris' driveway. Standing next to the passenger side of the car was Daniel Garrison, whom Kennelly had known for many years. A white female, later identified as Carol Orsene, was sitting in the driver's seat of the car and a Hispanic male, with dark hair and a mustache, was in the backseat. Kennelly spoke briefly with Garrison, warning him to leave the area because of a problem, and proceeded to the Harris home.

Later that evening, the defendant was arrested on unrelated charges. He was then identified by Kennelly as the Hispanic male from the red car parked near the Harris driveway. The next day the defendant was arraigned on charges relating to the robbery at the Harris home. He was convicted after a jury trial and this appeal followed.

I

The defendant first claims that the trial court improperly denied his motion to suppress evidence. The following additional facts are relevant to our discussion of this issue. Approximately twenty-five minutes after hearing the broadcast description of the perpetrators, Hamden police officer Gary Komoroski was patroling Shepard Avenue. He observed a man in the middle of the roadway, wearing jeans, and waving his hands at cars in an apparent attempt to get a ride. Komoroski drove past the man, pulled into the parking lot of a fire station, and waited for the man to approach the cruiser. When he approached, Komoroski got out of the cruiser and questioned him, thinking he might be a motorist in distress.

Upon questioning, Komoroski learned that the man did not know what town he was in, that he claimed to be on his way to Hartford from New Haven although Shepard Avenue was not a direct route between these locations, and that he had been put out of a car by two people whose names he did not know. Komoroski calculated that someone traveling on foot could have covered the distance between the Harris house and the fire station in the time that had elapsed since the robbery. On the basis of these facts, Komoroski radioed the officers at the Harris home to inform them that he was detaining a robbery suspect.

While waiting for someone to come from the Harris home, Komoroski decided to cite the man for the infraction of reckless use of a highway. See General Statutes § 53-182. Komoroski asked the man if he had any identification and, without checking his pockets, the man responded that he did not. Komoroski then either asked him to check his pockets for identification or told him to empty his pockets. ³ The man emptied his pockets onto the trunk of Komoroski's cruiser, and among the items was an identification card from a needle exchange program, a rubber glove, and a tin foil packet. The tin foil packet contained a glassine envelope of white powder, which the man stated was baking powder used in freebasing cocaine. Komoroski then arrested the man, who has been identified as the defendant in this case, for possession of drug paraphernalia and placed him in the cruiser.

Within a few minutes, Kennelly arrived at the fire station parking lot, looked into Komoroski's cruiser, and immediately recognized the defendant as the Hispanic male he had seen in the backseat of the red car near the Harris' driveway when he first responded to the reported robbery. Kennelly got into Komoroski's car, read the defendant Miranda ⁴ warnings, and questioned him. The defendant admitted that he had been in the backseat of the red car earlier in the evening. The defendant said the car had been pulled over near the Harris house so he and his companions could use cocaine. The defendant told Kennelly that he had argued with Garrison and had been forced to get out of the car. The defendant then changed his story to say that after the car was pulled over he remained in the car to use cocaine while Garrison and his female companion left the car and walked up the Harris' driveway.

At this time, Officer Nicholas Guerrera of the Hamden police, who had arrived at the scene during Kennelly's questioning, transported the defendant to the Harris house for a show-up identification. At the Harris home, the lighting was arranged so that the Harrises could see the defendant but the defendant could not see them. The Harrises were unable to identify the defendant as one of the perpetrators. Guerrera then transported the defendant to the Hamden police station. During the ride the defendant stated, "the old man and old woman couldn't pin me for this."

The next morning, the defendant was transported from the Hamden police station to a cell at the geographical area seven courthouse to await arraignment. Upon arrival, the sheriffs booked the defendant before assigning him to a cell. During the booking process, Deputy Sheriff William Joseph Benson noticed a ring on the defendant's pinky finger and asked him to remove the ring and to place it on the booking desk. The defendant removed the ring from his finger and placed it in his mouth. After the defendant repeatedly refused to produce the ring, Detective Thomas Rhone of the Hamden police department obtained a search and seizure warrant allowing X rays to be taken of the defendant in order to locate the ring. When Rhone initiated the transport of the defendant to a hospital for X rays, the defendant produced the ring and turned it over to Rhone. Later that morning, the ring was shown to Aimee Harris who identified it as one of the rings taken from her home during the robbery. On the afternoon of December 3, 1991, the defendant was arraigned for possession of drug paraphernalia and robbery.

The defendant claims that the trial court improperly denied his motion to suppress the following: (1) all items taken from his person on the evening of December 2, 1991, (2) all oral statements made by him after he was detained and arrested by Komoroski on December 2, 1991, (3) all oral statements made by him during the transport to and from the Harris home on December 2, 1991, (4) the ring seized while the defendant was in custody at the geographical area seven courthouse, and (5) a tape-recorded statement made by the defendant on December 3, 1991. We agree.

Although both the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution evince a clear preference for arrests pursuant to a warrant; State v. Heinz, 193 Conn. 612, 617, 480 A.2d 452 (1984); State v. Federici, 179 Conn. 46, 51-52, 425 A.2d 916 (1979); a warrantless arrest can be made in a public place if the arresting officer has probable cause to believe a felony has been committed by the suspect. State v. Conley, 31 Conn.App. 548, 554-55, 627 A.2d 436, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993); see General Statutes § 54-1f(b). "Probable cause means more than mere suspicion. There must be facts and circumstances within the officer's knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed." (Internal quotation marks omitted....