State v. Weinberg

• Decision Date: 05 June 1990
• Docket Number: No. 13598,13598
• Citation: 575 A.2d 1003,215 Conn. 231
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. David J. WEINBERG.

Page 1003

575 A.2d 1003

215 Conn. 231

STATE of Connecticut v. David J. WEINBERG.

No. 13598.

Supreme Court of Connecticut.

Argued March 6, 1990.

Decided June 5, 1990.

John R. Williams, New Haven, for appellant (defendant).

Mary H. Lesser, Deputy Asst. State's Atty., with whom was John Connelly, State's Atty., for appellee (State).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

HULL, Associate Justice.

A jury found the defendant, David J. Weinberg, guilty of murder in violation of General Statutes § 53a-54a. ¹ The trial court thereupon sentenced him to a term of life imprisonment. ² On appeal from this judgment the defendant claims that the trial court should not have: (1) denied his request for an evidentiary hearing on a motion to suppress; (2) found an essential state's witness competent to testify at trial; (3) admitted into evidence certain testimony of an expert witness; (4) denied his request for a mistrial; (5) refused to require the state to prove venue; (6) denied his motions for judgment of acquittal; and (7) sentenced him without first affording him the right of allocution. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the evening of August 3, 1984, Joyce Stochmal was at her home in the town of Seymour, preparing to leave for an overnight stay at her place of employment, the Silver Hills Kennel, located in the town of Ansonia. In contemplation of working at the kennel the next morning, she packed a blue gym bag with the following items: an orange Silver Hills Kennel t-shirt, a pair of Calvin Klein cut-off jeans, a bra, underpants, socks, and a small zippered makeup bag containing an Estee Lauder eyeliner pencil and mascara. Stochmal left her home at approximately 10:30 p.m. and was last seen alive at approximately 10:45 p.m., walking along the nearby Squantuck Road in the direction of Ansonia.

That same night, August 3, 1984, the defendant was at the Prime Time Cafe, a bar located approximately one half mile from Squantuck Road. When he left the bar, he drove along Squantuck Road where he encountered Stochmal. The defendant, thereafter, beat Stochmal about her head and face and stabbed her repeatedly in the back, chest and neck. After inflicting these fatal wounds, he disposed of Stochmal's body in Lake Zoar and then started a fire along the banks of the Pomperaug River where he burned the contents of Stochmal's gym bag.

In the afternoon of the next day, August 4, 1984, the defendant indicated to his girlfriend, D, who had just returned from an overnight stay in New York, that he had discovered a dirt road near his place of employment and he wanted to go see what was there. D agreed to go along, and they drove in the defendant's car to a secluded area along the Pomperaug River. The defendant indicated that he had been at that location the night before and that his car had gotten stuck. D and the defendant then got out of the car, and the defendant started wading through the shallow water to cross the river. D followed him, and when they reached the opposite bank, she watched as the defendant began digging through the remains of a fire. Twenty to thirty minutes later they left.

On August 4, 1984, the defendant shaved off his beard and, from that date, stopped carrying in public a knife he had previously kept in a sheath on his belt. He also removed a large sticker from the hood of his car and painted the white wheels on his car black.

The defendant became a suspect in the murder of Joyce Stochmal following police investigation of information given to them by D. D, who has a long history of mental illness manifested in such symptoms as auditory and visual hallucinations and delusions, went to the police barracks in Southbury on August 17, 1984, to complain about the psychiatric treatment she was receiving at a particular clinic. In the course of her conversation with the police officers, she told them about the fire site to which the defendant had taken her on August 4. After describing the location of the site, its surroundings, and the details of what had occurred on the afternoon she and the defendant had gone there, she took the police to show them the area.

The police seized the charred remains from the fire site. The following items were found in those remains: an orange fabric that matched the weave, composition, melting point and dye of an orange Silver Hills Kennel t-shirt; a Calvin Klein button; some Calvin Klein rivets; bra hooks and eyes; a zipper fragment consistent with those found on small makeup bags; pieces of an eyeliner pencil that matched the dye and construction of the Estee Lauder eyeliner the victim was known to have used; a twisted wire containing fibers consistent with those found on a mascara brush; charred fabric that appeared to be from a sock; and a blue fiber.

The police interviewed the defendant on August 22, 1984, concerning his activities on the night of August 3, 1984. When asked if he had seen anyone walking along the road as he had left the Prime Time Cafe, the defendant volunteered that he had not driven on Squantuck Road. He explained that, due to transmission problems with his car, he had taken a route home that had fewer hills, a route police later discovered to be 6.7 miles longer than the Squantuck Road route to his home.

After further investigation, two warrants were issued, one for the search of the defendant's body and the other for the search of his residence and car. The police seized from the defendant's apartment a buck knife later determined to be similar in size and configuration to the murder weapon. Seized from the trunk of the defendant's car was a bloody hair fragment consistent with the unusually fine texture of the victim's hair and also a blue fiber that matched in dye and structure a fiber found in the charred remains at the fire site.

I

The defendant first challenges the court's refusal to conduct an evidentiary hearing concerning the truthfulness of the affidavits that served as the factual predicates for the issuance of warrants to search his body, residence and car. ³ Prior to trial, the defendant, as part of a motion to suppress, requested that the court conduct a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to address the defendant's allegations that material facts deliberately or recklessly had been omitted from the affidavits supporting the search warrants and that, had those facts been included, probable cause for the issuance of the warrants would not have existed. The defendant claimed that the following information had been excluded from the affidavits: (1) The police had been informed that D, who provided detailed information that ultimately inculpated the defendant in the murder, suffered from mental problems, including auditory and visual hallucinations; (2) A report written by one investigating officer characterized, in less incriminatory terms than did the affidavits, the statement made by the defendant concerning the road he had taken after leaving the Prime Time Cafe on August 3, 1984; (3) The police had obtained information from a variety of sources indicating that the victim had not been abducted while walking along Squantuck Road, but rather had come in contact with her attacker sometime later and at a different location; ⁴ and (4) The police had interviewed a woman who provided them with information indicating that another person might have killed the victim. ⁵ The trial court concluded that although certain information might have been excluded from the affidavits, the defendant had not established that he was entitled to a Franks hearing. We agree with the court's conclusion.

In Franks v. Delaware, supra, at 155-56, 98 S.Ct. at 2676, the United States Supreme Court held that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." (Emphasis added.) The court in Franks mentioned only "a false statement ... included ... in the warrant affidavit"; subsequent cases, however, have extended Franks to include material omissions from such an affidavit. See, e.g., United States v. Williams, 737 F.2d 594, 604 (7th Cir.1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985); United States v. Marin-Buitrago, 734 F.2d 889, 894-96 (2d Cir.1984); United States v. Martin, 615 F.2d 318, 328 (5th Cir.1980); State v. Stepney, 191 Conn. 233, 238, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772, reh. denied, 466 U.S. 954, 104 S.Ct. 2163, 80 L.Ed.2d 547 (1984). Although we are not convinced that the defendant made the substantial showing required by the first prong of the Franks test, we need not decide the issue since we hold that even had the challenged omissions been included in the affidavits, there was probable cause to support the issuance of the warrants. See State v. Just, 185 Conn. 339, 359-60, 441 A.2d 98 (1981).

"Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction ... and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched." (Emphasis in original; citations omitted.) State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980); see State v. Morrill, 205 Conn. 560, 564-65, 534 A.2d 1165 (1987); State v. Shifflett, 199 Conn. 718, 745-46, 508 A.2d 748 (1986).

A review of the averments contained within the affidavits, even after the challenged omissions are added, convinces us that there...