State v. Santiago

• Decision Date: 14 May 2013
• Docket Number: No. AC 33217.,AC 33217.
• Citation: State v. Santiago, 142 Conn.App. 582, 64 A.3d 832 (Conn. App. 2013)
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Vincent SANTIAGO.

142 Conn.App. 582

64 A.3d 832

STATE of Connecticut

v.Vincent SANTIAGO.

No. AC 33217.

Appellate Court of Connecticut.

May 14, 2013.

Argued Jan. 3, 2013.

Decided May 14, 2013.

Richard E. Condon, Jr., senior assistant public defender, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief were Brian W. Preleski, state's attorney, and Brett J. Salafia, senior assistant state's attorney, for the appellee (state).

LAVINE, SHELDON and PELLEGRINO, Js.

SHELDON, J.

The defendant, Vincent Santiago, appeals from the judgment of conviction rendered against him following a court trial on three counts of criminal possession of a firearm in violation of General Statutes § 53a–217 (a)(1)¹ and one count of possession of a sawed-off shotgun in violation of General Statutes § 53a–211 (a).² On appeal, the defendant contends that the trial court erred in (1) failing to hold a hearing on and make a finding as to his competency to stand trial after ordering that he be evaluated for that purpose under General Statutes § 54–56d, and (2) denying his motion to suppress certain physical evidence seized in the course of a warrantless search of his apartment. We reject the defendant's claims and, accordingly, affirm the judgment of the trial court.

At the conclusion of trial, the court made the following oral findings of fact. On May 14, 2008, New Britain police Officer Jerry Chrostowski received a tip from a confidential informant that the defendant, with whom Chrostowski had previously interacted in an unrelated police investigation, was willing to sell him firearms out of a garage on John Street in New Britain. The confidential informant further informed Chrostowski that he already had scheduled a meeting with the defendant for that purpose. On the basis of the tip, Chrostowski and Officer Adam Rembicz, also of the New Britain police department, drove together to a parking lot near 39 Whiting Street in New Britain, where they parked their unmarked police vehicle to observe the rendezvous between the defendant and the confidential informant. While at that location, the officers saw the confidential informant enter the defendant's car, then followed the car to 30 John Street in New Britain, where it stopped near a bank of garages. The officers next saw the confidential informant and the defendant enter one of the garages (garage), where they remained for approximately ten to fifteen minutes before exiting the garage, reentering the defendant's car and driving away. The officers followed the defendant and the confidential informant back to Whiting Street, where they parted ways.

The officers then returned to 30 John Street, where Chrostowski began to prepare a search warrant for the garage and the defendant's person based upon his recent observations and the information he had received from the confidential informant. The officers arranged for police surveillance of the garage while they left to obtain the warrant.

After procuring the warrant, Chrostowski and Rembicz drove to the defendant's residence at 55 Tremont Street in New Britain, where they parked in the southern parking lot. Thereafter, when the officers observed the defendant walking through the parking lot toward his car, they parked their unmarked police vehicle near the defendant's car, promptly exited it and approached the defendant while wearing football style jerseys with the words “New Britain Police” printed on the front and back. The officers told the defendant that they had a search warrant for him and his guns. In response, the defendant stated immediately that he had “some guns” in his apartment and spontaneously offered to show them to the officers.³

Rembicz performed a patdown search of the defendant, which did not reveal any weapons. The defendant then led the officers into his apartment building, where he conducted them to the door of his studio apartment, which he opened using his personal key. Once he and the officers entered the apartment, the defendant gestured with his hand toward the guns, stating simply, without prompting: “[T]here they are.” Chrostowski then noticed the stocks of two rifles protruding from the large assortment of motor vehicle parts that were scattered across the floor of the apartment. While Rembicz and the defendant stood in the kitchenette area of the apartment, Chrostowski first confirmed that the stocks were parts of two muzzleloader rifles, then found a Marlin .22 caliber rifle. Because the officers knew that the defendant was a convicted felon who was prohibited from possessing firearms,⁴ they arrested him on site.

Following his arrest, the defendant orally consented to a search of his entire apartment by the officers, which he later confirmed by signing a written consent to search form. The officers' ensuing search of the apartment led to the discovery of ammunition for a twelve gauge shotgun and a set of keys.

After Chrostowski and Rembicz secured the previously described weapons and ammunition at the defendant's apartment, they drove to the garage to execute the search warrant, while two other officers transported the defendant to that location.⁵ Upon arriving at the garage, the officers unlocked a padlock on the garage door using one of the keys they had found in the defendant's apartment. Inside the garage, the officers found a Chevrolet Corvette surrounded by another large assortment of motor vehicle parts scattered across the floor. Rembicz, while searching the garage floor on one side of the Corvette, found a Smith and Wesson .38 caliber revolver and a sawed-off Savage Arms twelve gauge shotgun.⁶ Subsequent inspections of and tests performed on the weapons at the New Britain police outdoor range revealed that the .22 caliber rifle seized from the defendant's apartment and the twelve gauge shotgun and .38 caliber revolver seized from his garage were operable.

By way of a substitute long form information, the state charged the defendant with five counts of criminal possession of a firearm in violation of § 53a–217 (a)(1) and one count of possession of a sawed-off shotgun in violation of § 53a–211(a) in connection with the seizures of the previously described weapons from his house and garage.⁷ Prior to trial, the defendant filed a motion to suppress, inter alia, all firearms and ammunition that Chrostowski and Rembicz had seized during their warrantless search of the defendant's apartment. The defendant argued that his statements regarding the presence of guns in his apartment had been made during a custodial interrogation, which was conducted before he was given his Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Accordingly, claimed the defendant, his purported consent to the search of his apartment was the product of “illegal, non-Mirandized admissions.”

After an evidentiary hearing on the motion to suppress, where the defendant, defense witness Luis Ocasio and the two arresting officers testified, the trial court denied the defendant's motion. The trial court found that the ammunition and firearms were lawfully seized from the defendant's apartment because he voluntarily had consented to both the initial entry of the apartment and the ensuing search thereof, during which the three rifles lawfully had been discovered in plain view.

At the end of trial, during which all of the seized firearms were introduced as evidence, the court found the defendant guilty of three counts of criminal possession of a firearm—in connection with the .22 caliber rifle (count one), the .38 caliber revolver (count four) and the twelve gauge shotgun (count five)—and one count of possession of a sawed-off shotgun (count seven). The trial court thereafter imposed a total effective sentence of fifteen years imprisonment, with the execution suspended after seven years, four of which are mandatory, followed by five years of probation.⁸ This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant's first claim on appeal is that the trial court committed reversible error by ordering a competency evaluation of him, but then failing to hold a hearing or to render a finding on the record as to his competency to stand trial. In response, the state argues that the trial court's failure to take such action was not improper in light of the defendant's waiver, through his counsel, of his rights to a full competency hearing and finding on the record as to his competency. Because the defendant did not raise this claim at trial, he asks this court to review it under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),⁹ and/or the plain error doctrine. Practice Book § 60–5. Concluding that the defendant effectively waived this claim, we decline to decide it on the merits.

At the outset, we recognize that, when a right has been affirmatively waived at trial, we generally do not afford review of its claimed denial on appeal, under either Golding or the plain error doctrine. State v. Bharrat, 129 Conn.App. 1, 17, 20 A.3d 9, cert. denied, 302 Conn. 905, 23 A.3d 1243 (2011). Thus, in State v. Fabricatore, 281 Conn. 469, 482, 915 A.2d 872 (2007), our Supreme Court held that “unpreserved, waived claims, fail under the third prong of Golding.... ” Similarly, in State v. Corona, 69 Conn.App. 267, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002), this court held that, “[j]ust as a valid waiver calls into question the existence of a constitutional violation depriving the defendant of a fair trial for the purpose of Golding review, a valid waiver also thwarts plain error review of a claim. [The] [p]lain [e]rror [r]ule may only be invoked in instances of forfeited-but-reversible error ... and cannot be used for the purpose of revoking an otherwise valid waiver. This is so because if there has been a valid waiver, there is no error for us to correct.... The distinction between a forfeiture of a...