State v. Weaver

• Decision Date: 05 October 2004
• Docket Number: No. 23774.,23774.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Maurice WEAVER.

857 A.2d 376

85 Conn.App. 329

STATE of Connecticut v. Maurice WEAVER.

No. 23774.

Appellate Court of Connecticut.

Argued June 4, 2004.

Decided October 5, 2004.

Jeanne M. Zulick, special public defender, for the appellant (defendant).

Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence D. Mariani, assistant state's attorney, for the appellee (state).

FOTI, SCHALLER and PETERS, Js.

FOTI, J.

The defendant, Maurice Weaver, appeals from the judgments of conviction, rendered following a jury trial, under docket number CR01-302091, of burglary in the first degree, attempt to commit robbery in the first degree and conspiracy to commit robbery in the first degree and, under docket number CR01-302092, of two counts of burglary in the first degree and one count of attempt to commit robbery in the first degree. On appeal, the defendant claims that (1) the trial court should have suppressed certain evidence obtained following the defendant's allegedly unlawful arrest, (2) certain of the charges of which he was convicted were not supported by the evidence, and (3) his rights to due process and confrontation were violated as a result of the state's loss of certain evidence. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. At or around 5 p.m. on July 16, 2001, Walford Campbell and Nicole Johnson were watching television in Campbell's Waterbury condominium. Upon hearing a knock at the door, Campbell went to the door and opened it to see who was there. The defendant and Henry Echols forced their way into the condominium. Campbell and the defendant, who was armed with a gun, struggled briefly. The defendant went to Johnson and dragged her to an upstairs bedroom. Echols struck Campbell in the head with his gun when Campbell tried to protect Johnson.

Shortly thereafter, Echols brought Campbell upstairs to join the defendant and Johnson. The defendant asked Campbell and Johnson where they kept their money, and began pulling apart bedding in a search for money. The defendant then asked for the keys to a Lexus automobile. Campbell informed the defendant that he did not own a Lexus, but that his neighbor did. The defendant then addressed Echols, stating, "[W]e got the wrong house, we got the wrong house." The defendant asked Campbell and Johnson not to notify the police, and stated that he and Echols were going to leave. As the defendant and Echols left Campbell's condominium, they pulled the telephone jacks from the wall.

The defendant and Echols next entered the condominium of Thomas Palmieri, Campbell's neighbor. Palmieri was watching television with Mark Sherman, Anton Cross and Kenny Schofield when the defendant and Echols appeared in his condominium armed with guns. Echols was wearing a mask. The defendant, in an excited tone, asked, "Where is your money?" Sherman spoke with one of the intruders in the kitchen while the other intruder stood by a stairway to prevent anyone from leaving. Shortly thereafter, the defendant and Echols left Palmieri's condominium.

After the defendant and Echols had left Campbell's condominium, Campbell and Johnson drove to the Waterbury police department, where they reported the incident to Officers Richard Innaimo and Jason Davino. Innaimo and Davino accompanied Campbell and Johnson back to the condominium complex and investigated the crime scene. At that time, Innaimo and Davino encountered Palmieri, who reported the incident that had occurred in his unit. Palmieri accompanied the officers to the police department to assist in the investigation. The police arrested the defendant shortly thereafter. This appeal followed the defendant's conviction.

I

The defendant first claims that the court should have suppressed (1) evidence of Palmieri's identification of him and (2) his confession concerning his invasion of Campbell's residence because this evidence was obtained by the police following an unlawful arrest. We disagree.

At trial, Innaimo testified that, upon arriving at Campbell's condominium complex, he and Davino encountered Palmieri. Palmieri related to the officers what had occurred in his unit and told the officers that the defendant, to whom he referred by name, was one of the intruders. Innaimo obtained the defendant's address from police headquarters, and he and Davino immediately went to the defendant's residence. Upon finding the defendant at the residence. Innaimo and Davino took custody of him and put him in the back of their police cruiser. The officers brought the defendant to the front gate of his apartment complex, where Palmieri, who was with a detective in an unmarked police vehicle, positively identified the defendant.

The state also elicited evidence from John Kennelly, a detective with the Waterbury police department. Kennelly testified that, on July 17, 2001, following the defendant's arrest, he and another detective interviewed the defendant at police headquarters. Kennelly testified that, after advising the defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), he questioned the defendant, who related to him that he and Echols had forced their way into an apartment the day before. The defendant recalled that Echols had hit a man in the apartment with his gun, and that he himself had found a female victim upstairs in the apartment. The defendant further recalled that, when the male victim informed both him and Echols that the Lexus parked outside belonged to his neighbor, they realized that they were in the wrong apartment. The defendant told Kennelly that he and Echols left that apartment and went to the neighbor's apartment, but he would not relate any details of what occurred therein. The defendant argues that the police illegally seized him in violation of rights afforded to him under the fourth and fourteenth amendments to the United States constitution.¹ The defendant argues that the court should have suppressed evidence of Palmieri's identification of him and of the confession, which, he argues, was "gleaned from that illegal detention." The defendant did not raise this issue precisely at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The court's resolution of other claims raised at trial affords us an adequate record for review. At trial, the defendant filed a motion to dismiss the informations filed under both docket numbers on the grounds that a warrant had not been issued for his arrest and that he had been arrested without probable cause. The defendant also filed a motion to suppress "all of his alleged statements... concerning this case" because he did not give such statements voluntarily and they were taken in contravention of his Miranda rights. The court denied both of those motions. The defendant's claim is of constitutional magnitude, but fails under Golding's third prong because the defendant has failed to demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial.

"Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality.... On appeal, we apply a familiar standard of review to a trial court's findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision.... Because a trial court's determination of the validity of a ... search [or seizure] implicates a defendant's constitutional rights, however, we engage in a careful examination of the record to ensure that the court's decision was supported by substantial evidence.... However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Internal quotation marks omitted.) State v. Ramirez, 79 Conn.App. 572, 578, 830 A.2d 1165, cert. denied, 267 Conn. 902, 838 A.2d 211, 212 (2003).

On September 3, 2002, the court held an evidentiary hearing on the defendant's motions to suppress and to dismiss. In ruling on those motions, the court set forth detailed factual findings related to the circumstances of the defendant's detention by the police on July 16, 2001, as well as the circumstances under which the defendant gave his statement to the police on July 17, 2001. On the basis of the evidence adduced at the hearing, the court found that Innaimo went to the defendant's residence after speaking with Campbell, Johnson and Palmieri. Palmieri told Innaimo the defendant's name, and Innaimo thereafter obtained the defendant's address "from the police computer." The court further found that Innaimo and Davino arrived at the defendant's residence without an arrest or search warrant. They knocked at the door to the defendant's residence. A woman answered the door and the defendant voluntarily came to the door. The defendant did not attempt to close the door or otherwise to retreat back into his residence. The court noted that the evidence was uncontroverted that "initially the defendant's hands were concealed within his T-shirt [and] the officers drew their weapons and ordered the defendant to put his hands where they could be seen." The defendant complied with that request and, at that time, Innaimo and Davino took the defendant into custody at his front door "for the purpose of a show-up [identification]" by Palmieri. They brought the defendant approximately 300 feet away from his residence for security reasons. After Palmieri positively identified the defendant, the police, having "ample probable cause at this point...