State v. Villafane

Decision Date21 September 1976
Citation171 Conn. 644,372 A.2d 82
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Maximino VILLAFANE.

L. Scott Melville, Sp. Public Defender, for appellant (defendant).

Joseph T. Gormley, Jr., Chief State's Atty., Woodbridge, with whom was Robert E. Beach, Jr., Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

BOGDANSKI, Associate Justice.

A jury found the defendant, Maximino Villafane, guilty of murder in the first degree in violation of General Statutes § 53-9 (repealed, 1969 Public Acts, No. 828, § 214, effective October 1, 1971). In his appeal from the judgment rendered the defendant has raised and briefed issues concerning alleged errors in the court's denial of several pretrial motions, in its rulings on evidence, and in its charge.

The basic facts of this case, as disclosed by the evidence referred to in the briefs, are summarized below. Other facts which are necessary to our determination of particular issues raised will be later set out where warranted.

Shortly before 1 a.m. on April 17, 1971, Mario Campolucci, the proprietor of Bud's Bar & Grill in Bridgeport, was preparing to close the bar for the night. Present in the bar at that time were Campolucci, Fred Jarvis, Donald Deno, a couple, and a man who turned out to be a robber. The latter person was sitting at the end of the bar farthest from the entrance. At approximately 12:50 a.m. Campolucci asked that man, 'What do you want? I am closing.' The man responded by placing a handgun in Campolucci's back and ordering him to empty the cash register. Campolucci obeyed: he removed money from the cash register and handed it to the gunman. The gunman then went to the front of the bar and grill, pointed his gun down the length of the bar, and warned everyone not to move.

At that point, Donald Deno, apparently unaware that the holdup had taken place, was preparing to leave. The gunman ordered him to remain where he was and to put his wallet on the bar. Deno complied. As the gunman left, Deno threw a jar at him and chased after him. Shortly thereafter, shots were heard and Deno was found wounded, lying in the street. On October 23, 1971, he died as a result of the bullet wounds.

Antonio Amaro, who on April 17, 1971, lived in the vicinity of Bud's Bar & Grill, heard the shots. He looked from his window and saw a man with a gun across the street from the bar. He went to his door, opened it less than halfway, and saw the man get into a car.

There were no significant developments in the case until April 28, 1971. On that day, Detective Donald R. Menard of the Bridgeport police was told by a confidential informant that 'the word on the streets' was that the person responsible for the shooting was named Max and that he was the same person who had been involved in a homicide in Easton. Menard relayed this information to his superiors, including Captain Willard Stevane. Stevane believed that the person referred to by the informant may have been the defendant, Maximino Villafane, who was involved in a prior homicide in Easton.

To locate the whereabouts of Villafane, Officers John J. Connors and Robert J. Cafferty went to the Juvenile Court in Bridgeport and talked with James Middleton, a parole officer with the state department of children and youth services (hereinafter DCYS). Middleton told them that Villafane was on parole and was presently living in Puerto Rico. The officers then went to Villafane's last Bridgeport address, which was his parents' home at 229 Olive Street, at noontime on April 28, and saw the defendant sitting there on the front porch. That same day, the police called David W. Scott, the supervisor of parole for DCYS, to ascertain Villafane's parole status and were informed that by being in Bridgeport, Villafane had violated his parole. Scott was aware that Villafane had previously been involved in a homicide and that he was considered to be dangerous, and he asked the police to pick him up for return to the reformatory.

On being informed that Villafane took his mother to work between 6 and 6:30 a.m., Officers Connors and Cafferty were dispatched to take him into custody on the following morning. On April 29, 1971, they arrived at the Villafane residence and waited outside in their car. At 6:30 a.m., the defendant's brother and mother came out of the house and started to get into a car. The officers approached and inquired as to the whereabouts of the defendant. They were told that the defendant was upstairs asleep and, accompanied by the mother and brother, they went into the bedroom, took Villafane into custody as a parole violator and read him his constitutional rights. He was handcuffed and transported to police headquarters.

As the officers were escorting Villafane into the area of the police station, Fred Jarvis, one of the witnesses to the holdup, happened to be passing by on his way to work and saw the trio. Jarvis immediately approached the officers and identified the defendant as the gunman who had held up Bud's Bar & Grill.

A lineup was then conducted. There was seven participants in the lineup. The witnesses Jarvis, Campolucci and Amaro viewed the lineup individually. All three identified the defendant. Shortly thereafter, the defendant was arrested for the shooting at Bud's Bar & Grill.

On December 6, 1971, Villafane was indicted by a grand jury for the crime of murder in the first degree. He thereafter filed a combined plea in abatement and motion to quash the indictment, which was granted by the trial court. On appeal to this court, the decision was reversed and the indictment was reinstated. State v. Villafane, 164 Conn. 637, 651, 325 A.2d 251.

I

Prior to trial, the defendant moved to suppress all identification evidence resulting from the lineup on the ground that the arrest leading to his presence at the lineup was illegal. That motion was denied. The defendant claims that the court erred in refusing to suppress that evidence.

Testimony at the hearing on the motion to suppress revealed that on October 10, 1967, Villafane had been adjudicated a delinquent by the Juvenile Court in Bridgeport and was committed to the Connecticut School for Boys. He was under the general supervision of David W. Scott. Beginning in 1969, the Connecticut School for Boys came under the jurisdiction of DCYS. On January 25, 1971, Villafane was granted a 'conditional release' to live with his grandparents in Puerto Rico on condition that he remain there and not return to Bridgeport unless given permission to do so. When Scott learned of the defendant's return to Bridgeport, he decided that parole should be revoked and asked the Bridgeport police to take Villafane into custody.

The defendant argues that when the officers arrived at his parents' house at 6 a.m. on April 29, 1971, they had no probable cause to arrest him for the shooting at Bud's Bar & Grill; that the police officers had no statutory authority to detain a juvenile parole violator without an arrest warrant; that even assuming that the commissioner of DCYS had legislative authority to authorize the police to pick up a juvenile parole violator, the detention in this case was accomplished through an unlawful delegation of that authority; that the defendant's arrest at 6:30 a.m. was therefore illegal; and that the subsequent identifications were obtained by virtue of that unlawful arrest and should have been suppressed.

The state agrees that there was no probable cause to arrest the defendant at 6:30 a.m. on April 29, 1971, on a charge concerning the shooting at Bud's Bar & Grill. The state contends, however, that the defendant's detention as a juvenile parole violator was lawful, but that even if it were not, the spontaneous identification by Jarvis outside the police station 'purged the taint' of the original detention.

Public Acts 1969, No. 664, created DCYS and repealed a number of statutes which granted specific powers and duties to a number of juvenile authorities. In place of those specific powers, the legislature granted flexible and broad authority to the commissioner of DCYS. The department was intended to provide 'a flexible, innovative and effective program for the placement, care and treatment of children and youth committed by any court to the department'; General Statutes § 17-412(b); the commissioner, or his designee, was given the power to transfer children to different facilities in or outside the state, but at all times the transferred children would be deemed to be in the custody of the commissioner. General Statutes §§ 17-418(a), 17-420. In addition, the commissioner was given 'such other powers and duties as are necessary to administer the department and implement the purposes of this chapter.' General Statutes § 17-415(r). The defendant concedes that under chapter 310 of the General Statutes, the commissioner had broad powers concerning children under his supervision. He maintains, however, that the commissioner did not have the authority to request the police to pick up a juvenile parole violator. He asserts that police officers can arrest for criminal offenses only; that no statute declares a juvenile parole violation a criminal offense; and that the defendant's arrest without a warrant was in violation of his fourth amendment rights. 1

While it is true that at the time when the defendant was initially taken into custody there was no express statutory authority permitting police officers to detain juvenile parole violators, we do not agree that the police were without the power to do so. To hold otherwise would be to deny the commissioner the power to enforce his decisions and render ineffective his power to implement the purposes of chapter 310 of the General Statutes. In the event that a juvenile parole violator is considered dangerous, it would be unreasonable to require a parole official, often...

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