State v. Wilson-Bey, WILSON-BE

• Decision Date: 03 May 1990
• Docket Number: No. 7413,WILSON-BE,S,7413
• Citation: 21 Conn.App. 162,572 A.2d 372
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Virgilr.

Page 372

572 A.2d 372

21 Conn.App. 162

STATE of Connecticut v. Virgil WILSON-BEY, Sr.

No. 7413.

Appellate Court of Connecticut.

Argued Dec. 14, 1989.

Decided April 3, 1990.

Certification Denied May 3, 1990.

Mark S. Baldwin, Sp. Public Defender, with whom, on the brief, were William H. Narwold, and David D. Legere, Hartford, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., Bridgeport, and Kevin M. Kennedy, Law Student Intern, for appellee (State).

Before BORDEN, SPALLONE and LAVERY, JJ.

SPALLONE, Judge.

A jury convicted the defendant of the crimes of violation of the state dependency producing drug law; General Statutes § 21a-277(a); and possession of drug paraphernalia in a drug factory situation. General Statutes § 21-277(c). On appeal, the defendant claims that the trial court erred (1) in allowing into evidence items seized from the defendant's apartment in violation of his rights under the fourth and fourteenth amendments to the federal constitution and under article first, § 7, of the state constitution, (2) in admitting out-of-state laboratory reports without requiring the state to present testimony to indicate whether they were business records under General Statutes § 52-180, (3) in admitting the results of tests performed by an out-of-state laboratory in violation of his right to confront witnesses against him under the sixth and fourteenth amendments to the federal constitution and under article first, § 8, of the state constitution, (4) in failing to require the state to prove beyond a reasonable doubt that he was guilty of possession with intent to distribute cocaine in violation of § 21a-277(a); (5) in failing to comply with General Statutes § 54-84(b) ¹ concerning his failure to testify, and (6) in refusing to give the jury a cautionary instruction concerning the prosecutor's inflammatory remarks.

The evidence adduced at trial reasonably supports the facts as follows. Carolyn Hamrick and the defendant lived in an apartment in the city of Bridgeport with their son, Virgil Jr., and Hamrick's daughter. The apartment consisted of a living room, kitchen, bathroom and two bedrooms. On June 2, at about 6 a.m., the defendant and Frank Braswell, a neighbor, arrived at the apartment and smoked crack with a glass pipe and a propane torch. Braswell took the torch with him when he left. The defendant went to bed after informing Hamrick that she should expect John Lee to arrive at the apartment, and that she should give Lee $100 in return for vials of crack. Lee arrived at about 8 a.m. and the exchange transpired.

Hamrick then went to Braswell's apartment to get the propane torch and returned to her own apartment with Jennifer Braswell, where the two of them smoked crack. Just after 10 a.m., Hamrick left Virgil, Jr., watching television in the living room while she went to a convenience store across the street to buy milk. She left the lit propane torch on the washing machine in the kitchen. The apartment caught fire while she was out. The Bridgeport fire department arrived shortly thereafter and gained control of the blaze within twenty minutes. Firefighters rescued the defendant and Virgil, Jr., from the apartment, but Virgil, Jr., died after reaching the hospital.

Assistant Chief Encole Spinelli of the Bridgeport fire department was the officer in charge of the detail fighting the fire. Once the fire was extinguished, Spinelli examined the apartment. He found that the living room was thoroughly gutted. There was heat and flame damage in portions of the kitchen, and there was severe smoke damage throughout the apartment. Because the living room had apparently ignited very quickly, Spinelli suspected the presence of an accelerant and he called the arson squad. An arson investigator arrived minutes later.

The arson investigator, Spinelli and other firefighters conducted an "overhaul" of the apartment. The overhaul process, as explained by Spinelli, constitutes a search of the entire premises for smoldering cinders or other hazards. The purpose is to leave the premises in as safe a condition as possible. Firefighters also investigate the cause of the fire while conducting an overhaul.

The overhaul of the defendant's apartment revealed evidence of illegal drug activity. There were empty crack vials in a film container located on a dresser top in a rear bedroom. The metal surfaces of the kitchen refrigerator were warped by heat, prompting an inspection of the appliance, and inside the investigators found a plastic bag of white powder later determined to be cocaine. From the living room floor, the investigators seized a wallet containing $187 and the crack vials that had been delivered to the defendant by Lee.

There was further evidence that the defendant was involved in the use and sale of illegal drugs. The day before the fire, the defendant telephoned Hamrick and told her that he was selling cocaine at Jackson's poolroom. Also, about one week earlier, Hamrick's daughter had seen the defendant selling crack, and Hamrick's sister had seen the defendant smoking crack while she was visiting the apartment two weeks before.

The defendant first claims that the trial court erred by admitting into evidence items that were unlawfully seized from his apartment. The defendant maintains that the warrantless search of his apartment after the fire was excessive in scope and should have been restricted to the living room area of the apartment because the fire was confined to that area, because the cause of the fire was apparent, and because there was no need to search the remainder of the apartment to determine the cause of the blaze. We disagree.

It is well established that a burning building is an exigent circumstance that justifies warrantless entry by firefighters. Michigan v. Clifford, 464 U.S. 287, 299-300, 104 S.Ct. 641, 649-650, 78 L.Ed.2d 477 (1984); Michigan v. Tyler, 436 U.S. 499, 509-10, 98 S.Ct. 1942, 1949-50, 56 L.Ed.2d 486 (1978). Fire officials may remain at the scene without a warrant until all of their duties are completed. Among their duties, aside from dousing the blaze, are to conduct an overhaul; Steigler v. Anderson, 496 F.2d 793, 795 (3d Cir.1974); United States v. Johnson, 524 F.Supp. 199, 204 (D.Del.1981), rev'd in part, 690 F.2d 60 (3d Cir.1982), cert. denied 459 U.S. 1214, 103 S.Ct. 1212, 75 L.Ed.2d 450 (1983); and to investigate the cause of the fire. Michigan v. Tyler, supra.

The warrantless fire investigation that occurred in this case is closely analogous to that approved in United States v. Johnson, supra. In that case, there was a fire in the second floor front bedroom of a house. After overhaul procedures revealed controlled substances in the rear bedroom of the second floor, a federal drug enforcement officer was summoned. He finally arrived two and one-half hours after the fire had been extinguished. The fire investigator suspected that either arson or faulty wiring was the cause of the fire. While inspecting the wiring in the basement, the fire investigator noticed certain equipment, which the drug enforcement officer later identified as drug manufacturing equipment.

The defendant relies on the United States Supreme Court case of Michigan v. Clifford, supra, in which a fire investigation was held to be an unreasonable search. That case is distinguishable because there the investigation of the cause of the fire occurred when investigators returned to the scene six and one-half hours after the fire was suppressed. The fact that insurance agents had begun to board up the premises was a clear indication that the exigent circumstances had passed. In the present case, the overhaul was conducted immediately after the fire was extinguished while firefighters were still on the scene performing their duties.

We reject the defendant's argument that because the fire investigators in this case found the propane torch and the majority of fire damage in the living room they should not have entered the remainder of the apartment. Fire officials must search for possible victims, ventilate the entire premises, and check for smoldering embers or other hazards. Steigler v. Anderson, supra; United States v. Johnson, supra.

In the present case, all items were seized during the overhaul procedure, and all of the items were in plain view of the investigators. The bag of white powder in the refrigerator was not initially in plain view, but the investigators had a legitimate reason to inspect that appliance because it had sustained intense heat damage during the fire. Once the investigators were legitimately inspecting the refrigerator, the evidence they found therein was in plain view. See Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993-94, 19 L.Ed.2d 1067 (1968).

In his second and third claims of error, the defendant asserts that the trial court illegally admitted into evidence as business records certain test results from an out-of-state laboratory. Neither claim is persuasive.

When the defendant was treated for smoke inhalation and burns at Bridgeport Hospital, blood and urine tests were performed. The attending physician testified at trial that it is routine to check the bodily fluids of smoke inhalation victims for carbon monoxide deposits. He also stated that when a patient is agitated or semiconscious, the normal medical procedure is to perform a toxic screen of the bodily fluids in order to discover whether traces of drugs or alcohol are present, and thereby determine the medical reason for the patient's agitation or semiconsciousness. In the present case, the defendant appeared agitated, and the toxic screen of his bodily fluids revealed the presence of cocaine and coke metabolites. The results of the toxic screen were incorporated in the defendant's medical chart at the Bridgeport Hospital, and this chart was later admitted into evidence at trial.

Because the defendant's...