State v. Smith

• Decision Date: 15 January 2008
• Docket Number: No. 28188.,28188.
• Citation: 105 Conn.App. 278,937 A.2d 1194
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Patrick D. SMITH.

937 A.2d 1194

105 Conn.App. 278

STATE of Connecticut v. Patrick D. SMITH.

No. 28188.

Appellate Court of Connecticut.

Argued September 5, 2007.

Decided January 15, 2008.

Auden Grogins, special public defender, for the appellant (defendant).

Timothy F. Costello, special deputy assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Robin Lipsky, former senior assistant state's attorney, for the appellee (state).

BISHOP, McLACHLAN and PELLEGRINO, Js.

McLACHLAN, J.

The defendant, Patrick D. Smith, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(3) and kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B). After further findings by the jury on a second part of the criminal information and a subsequent hearing by the court, the trial court enhanced the defendant's sentence for being a persistent dangerous felony offender in violation of General Statutes § 53a-40. On appeal, the defendant claims that (1) the court improperly denied his motion to suppress evidence seized as the result of an illegal warrantless search, (2) the one-on-one identification procedure used by the police violated his due process rights, (3) the court improperly permitted the state to introduce a witness' prior inconsistent written statement as substantive evidence and (4) the imposition of the enhanced sentence for being a persistent dangerous felony offender was contrary to our Supreme Court's recent holding in State v. Bell, 283 Conn. 748, 931 A.2d 198 (2007).¹ We reverse the judgment of conviction only as to the sentence imposed and affirm the judgment of the trial court in all other respects.

The jury reasonably could have found the following facts. Sometime around midnight on January 29, 2002, Andrew Cormier, a sergeant with the United States Army working as a recruiter in the Waterbury area, stopped to refuel his government van at a gasoline station in Waterbury. With him was his girlfriend, Catherine O'Brien, who went into the station's convenience store to purchase sodas. Cormier had finished filling the gasoline tank and was in the driver's seat when O'Brien returned to the vehicle. After she entered the passenger side of the van, but before she closed the door, the defendant appeared at the door and grabbed her with his right arm. He held a knife to her throat. Cormier briefly struggled with the defendant in an attempt to force the knife away from O'Brien, but the defendant had more leverage and Cormier ceased his resistance.

The defendant indicated that he needed a ride and assumed the front passenger seat, allowing O'Brien to move to the back bench seat behind Cormier. From the time the defendant entered the van, he never relinquished either of the two knives that he brandished throughout the ordeal. Most of the time, he pointed one at or held it against O'Brien. At some point, the defendant began making demands for money. Cormier had no money in his wallet, but the defendant took his automated teller machine (ATM) card and driver's license. O'Brien indicated that she had left her wallet and checkbook in her own vehicle parked at Cormier's office. They then proceeded to Cormier's office and drove into the parking lot. The defendant instructed Cormier to retrieve O'Brien's belongings from her vehicle and warned Cormier that he would hurt O'Brien if he tried "anything funny." O'Brien had no money in her wallet, but the defendant took her checkbook, credit card and driver's license.

The defendant became agitated. He told Cormier that he needed $300 to pay his drug dealer and that Cormier had better get the money for him. Cormier said that he could telephone his supervisor, Donald Jernigan, but that Jernigan certainly would become suspicious at a request for such a large sum of cash at that early hour in the morning. The defendant directed him to ask for $100. Cormier called Jernigan on O'Brien's cellular telephone and made that request, with the defendant listening to the conversation while holding the knife to Cormier's throat. Jernigan stated that he had only $60, and the defendant nodded his head in agreement. Cormier drove them to Jernigan's apartment and, after parking the van, exited the vehicle at the defendant's direction and proceeded to retrieve the money. The defendant again threatened O'Brien and held one of the knives to her wrists until Cormier returned to the van.

After putting the $60 in his pocket, the defendant directed Cormier to drive to the north end of Waterbury. At the intersection of Johnson and Sperry Streets, the defendant exited the van. Before he left, he also took O'Brien's cellular telephone. The entire incident, from the time the defendant entered the van until he exited and walked away, lasted approximately one hour and fifteen minutes to one hour and thirty minutes.

Cormier and O'Brien remained at the intersection for a few minutes to collect themselves and then drove to the Waterbury police station. At the station, they gave a physical description of the perpetrator. Cormier indicated that he had been wearing a black, knit hat with an emblem on it, a scarf around the face, a dark jacket, a red T-shirt and gloves. According to Cormier, the perpetrator was a middle-aged man in his forties or fifties, had white hair and very blue eyes. Although the hat was pulled down over the perpetrator's forehead, Cormier could see hair sticking out from beneath the hat and also noticed his large, unkempt eyebrows. O'Brien concurred with Cormier's description.

A radio dispatch relayed the information provided by Cormier and O'Brien, and shortly thereafter a patrolman noticed the defendant walking in the vicinity of Willow and Johnson Streets. Approximately forty-five minutes to an hour after the defendant had exited the van, Cormier and O'Brien were driven to the intersection where the defendant had been detained by the patrolman. From the backseat of the police vehicle, Cormier and O'Brien viewed the defendant, who then was standing in the road in the presence of several police officers. After Cormier and O'Brien identified the defendant as the perpetrator, he was arrested and taken to the police station.

At the time the defendant was detained, he indicated that he lived at an apartment at 80 Willow Street. After the defendant was arrested, Waterbury police officers went to the address he provided. When they arrived, Sergeant Timothy Wright knocked on the door to the apartment. Mark Casella, disheveled but dressed in street clothes, answered the door and indicated that the defendant lived at that apartment. Casella stated that he had been staying there, as a guest, for approximately three to four weeks. He allowed the officers into the apartment, where they saw two knives on top of the coffee table in the main room or living room. Wright then radioed another officer and asked her to dial the number of the cellular telephone taken from O'Brien. The officer did so, and the sound of a ringing phone was heard in the defendant's apartment, coming from the area of a mattress lying on the floor in the living room. Casella indicated that he had been sleeping on that mattress when the defendant, who had been out for the evening, returned to the apartment at approximately 1 a.m. and put something under the mattress. Wright then turned over the investigation to the detective unit in order that an application for a search warrant could be prepared.

Lucinda Lopes, a crime laboratory supervisor employed by the Waterbury police department, assisted in the execution of the search warrant at the defendant's apartment. In addition to the cellular telephone and the two knives located in the apartment, Lopes seized a black coat, black scarf and black gloves identified at trial as having been worn by the perpetrator. From a wastebasket located in the living room, Lopes seized a checkbook, driver's license and credit card belonging to O'Brien and a driver's license and an ATM card belonging to Cormier.

The jury returned its verdict on May 11, 2004, finding the defendant guilty of the crimes of robbery in the first degree and kidnapping in the first degree. At that point, additional evidence was presented to the jury on the second part of the information, charging the defendant with being a persistent dangerous felony offender in violation of § 53a-40. On May 12, 2004, the jury returned its verdict finding the defendant guilty of that charge. The court accepted the verdicts and rendered judgment accordingly. This appeal followed.

I

The defendant first claims that the court improperly denied his motion to suppress the evidence seized pursuant to the search warrant. Specifically, the defendant argues that the issuance of that warrant was based on information gathered by the police by virtue of their illegal warrantless entry and search of his apartment that was made after his arrest and without his consent.² The defendant claims that (1) the Waterbury police did not obtain consent to enter or to search his apartment, (2) Casella did not have the authority to consent to the entry or search of the apartment, (3) if Casella had the authority to consent, that consent was not given voluntarily and (4) any items seized pursuant to the search warrant issued on the basis of an illegal entry and search of his apartment should have been suppressed as the "fruits of the poisonous tree."

The defendant filed his pretrial motion to suppress on March 30, 2004. After hearing testimony over the course of three days and oral argument by counsel, and after reviewing the briefs submitted by the parties, the court issued an oral decision on April 30, 2004, granting in part and denying in part the motion.³ That decision was followed by a written memorandum of decision filed on July 22, 2004.

At the suppression hearing, Wright testified that in the early morning hours of ...