State v. Vincent

• Decision Date: 25 March 1993
• Docket Number: No. 10688,10688
• Citation: 30 Conn.App. 249,620 A.2d 152
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Mark VINCENT.

Page 152

620 A.2d 152

30 Conn.App. 249

STATE of Connecticut v. Mark VINCENT.

No. 10688.

Appellate Court of Connecticut.

Argued Sept. 28, 1992.

Decided Feb. 9, 1993.

Certification Granted for limited issue March 25, 1993.

[30 Conn.App. 250] Michael K. Courtney, Asst. Public Defender, for appellant (defendant).

Leah Hawley, Asst. State's Atty., with whom, on the brief, were Walter Flanagan, State's Atty., and David Holzbach, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and FOTI and LAVERY, JJ.

LAVERY, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a revolver in violation of General Statutes § 53a-217. ¹ The defendant claims that the trial court (1) should have suppressed the revolver and ammunition seized during the execution of a search warrant because (a) there was no probable cause to believe that the items sought were present within the premises to be searched or that there was a nexus between such items and criminal activity, (b) the description of items authorized to be seized was overly broad and authorized a general warrant, (c) the trial court's conclusion that the seizure was valid because of the plain view exception was mistaken because The following facts could have reasonably been found by the jury. In June, 1988, the defendant's daughter Doreen disappeared from the defendant's home in Wallingford. On July 31, 1989, officers of the Wallingford police department were issued a search and seizure warrant for the defendant's mother's home in Bethel where the defendant was residing. The warrant authorized the officers to seize medical records, personal papers, clothing, artifacts and photographs of the defendant's daughter Doreen.

                the police had sufficient antecedent probable cause to obtain a search warrant for the revolver, and (d) the Connecticut constitution requires "inadvertence" for plain view seizure even if the United States constitution does not;  (2) should have excluded evidence regarding the investigation into the disappearance of the defendant's daughter;  (3) should have issued the preliminary voir dire oath to the first four jurors selected;  and (4) should have ruled on a pretext claim by the defendant.   We affirm the judgment of the trial court
                

During the execution of the warrant, one of the officers discovered a revolver under articles of clothing inside a paper bag between the studs of the garage. The defendant told the officers that they could not take his gun because it was not listed in the search warrant. Since the defendant had a prior felony record, it was illegal for him to have possession of a gun. The officers seized the gun as contraband. Other guns discovered during the search were not seized because the defendant's mother claimed ownership of them. As a result of the search, the police recovered photographs of the defendant's daughter and her birth certificate in addition to the gun. The defendant was subsequently arrested and charged with criminal possession of a firearm.

I

THE MOTION TO SUPPRESS

A

We must determine whether the facts that appear on the affidavit presented a substantial basis for the magistrate's conclusion that probable cause existed. State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991). We are confined to the facts that appear on the face of the affidavit and those facts that may properly be inferred therefrom, testing those facts with common sense and reality and with great deference to the fact that the issuing magistrate found probable cause. State v. Rodriguez, 27 Conn.App. 307, 316, 606 A.2d 22 (1992).

From the allegations set forth in the warrant affidavit, the issuing magistrate could reasonably conclude the following. On June 5, 1988, the defendant moved from Bridgeport to Whirlwind Hill Road in Wallingford with his wife Sharon, her children, and Doreen Vincent, the defendant's daughter from a previous marriage. Doreen's mother, Donna Jones, lived in Waterbury. On June 15, 1988, at approximately 11:30 p.m., Sharon Vincent returned home from church and was informed by the defendant that Doreen was missing. The defendant said that she had left through the front door. Sharon Vincent later stated that this was impossible because the door was locked with a deadbolt that required a key. Jones then called the defendant's Wallingford home and was told that Doreen was not at home. Jones attempted to contact Doreen several times on June 17, but the defendant had removed the phone from the wall. On Saturday evening, June 18, Jones arrived at the defendant's house to pick up Doreen and was then told that she had run away. Jones asked the defendant to alert the police, but he refused. Only at Jones' insistence did the defendant agree to report Doreen missing. He explained that he did not report her missing right away because he thought she had run away to Jones' house. Doreen had run away to Jones' house three times before, but on each occasion Jones had immediately called the defendant. The defendant also told police that he did not report Doreen missing because he thought Jones had come to get her when, in fact, he knew that at the time of the disappearance Jones did not know where he lived. The defendant did not tell his mother or a longtime family friend that Doreen was missing even though he visited those people on June 19, 1988.

In 1989, when Sharon Vincent moved from the Wallingford residence to Danbury, she gave Doreen's bedroom furniture and curtains to Jones. She told Jones that the defendant had thrown away Doreen's bedspread because Doreen had "messed it up." Sharon refused to turn over to police any of Doreen's school papers, clothing or personal effects.

On July 10, 1989, search and seizure warrants were issued to seize Doreen's personal effects from Sharon's home in Danbury and her brother's home in Newtown. Property of Doreen's that the defendant said she had taken with her was recovered pursuant to these warrants.

The defendant admitted to the police that he had a volatile temper and that on June 15, 1988, he had become angry with Doreen, had hit her and had pushed her into a window, breaking it.

In November, 1988, the defendant moved into a house he shared with Roseann Pelloni. He left no forwarding address with the police, Sharon Vincent or Jones. His whereabouts were discovered after he was involved in a domestic dispute to which the Wallingford police were called.

The defendant admitted to the police that he had taken photographs of Doreen in her underwear in the weeks prior to her disappearance. Pelloni stated that the defendant often took photographs, but that she searched his personal effects and was not able to find any. The defendant claimed that he no longer had any property of Doreen's when in fact, acting pursuant to a warrant, the police seized from the defendant's truck a jersey similar to Doreen's clothing. Jones consented to a search of her house and turned over to police papers, furniture and magazines belonging to Doreen. The police were unable to recover any personal or medical records of Doreen and believed it valuable to their investigation to obtain any personal articles that might contain fingerprints, hair samples, handwriting samples and medical records that might identify her, and personal artifacts that might contain information concerning her disappearance. Sharon Vincent told police that, after Doreen's disappearance, she found several letters that Doreen had written to her friends but had not mailed. Those letters were not recovered. The defendant had been living at his mother's house in Bethel for several weeks prior to the issuance of the warrant.

The defendant claims that there is nothing in the affidavit showing that the affiants or the parties supplying information had reason to believe that any of the items sought were in the house, and that the magistrate could not have reasonably concluded that there was a nexus between the objects sought and any crime because there was no crime under investigation. The defendant argues that the application does not mention a crime or offense but rather "the sudden disappearance of Doreen Vincent." We find no merit in the defendant's claims.

General Statutes § 54-33a ² permits the issuance of a search warrant if there is probable cause to believe that the property constitutes evidence of an offense. The government has an interest in solving crimes and may seize property solely for the purpose of proving a crime. Warden v. Hayden, 387 U.S. 294, 306, 87 S.Ct. 1642, 1649-50, 18 L.Ed.2d 782 (1967). For purposes of the fourth amendment "there is no viable reason to distinguish intrusions to secure 'mere evidence' from intrusions to secure fruits, instrumentalities, or contraband." Id., at 310, 87 S.Ct. at 1652. In the case of mere evidence, "[t]here must, of course, be a nexus--automatically provided in the case of fruits, instrumentalities, or contraband--between the item to be seized and criminal behavior." Id., at 307, 87 S.Ct. at 1650; General Statutes § 54-33a; State v. Gold, 180 Conn. 619, 650-51, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980). Consideration of police purposes is required to this end. Warden v. Hayden, supra.

We conclude, as did the trial court, that there was probable cause to believe that a crime had been committed, that the evidence sought would aid in a particular apprehension or conviction, and that the named items would be in the defendant's mother's house where the defendant was living.

The defendant was uncooperative and evasive regarding his daughter Doreen's disappearance. He delayed reporting the disappearance for three days and filed the report only after pressure from his former wife, Doreen's mother. He actually concealed her disappearance from family, friends and the girl's mother.

The defendant gave vague and contradictory information to the police. His accounts of how Doreen...