State v. Wright

Decision Date28 October 1999
CourtConnecticut Court of Appeals
Parties(Conn.App. 2000) STATE OF CONNECTICUT V. DAVID WRIGHT (AC 18649)

Kirstin B. Coffin, for the appellant (defendant). John A. East III, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Robin Lipsky, assistant state's attorney, for the appellee (state).

Spear, J.

Lavery, Landau and Spear, Js.1

OPINION

The defendant, David Wright, appeals from the judgment of the trial court, rendered after a jury trial, of possession of a narcotic substance with the intent to sell in violation of General Statutes §§ 21a-278 (a),2 possession of a narcotic substance with intent to sell in violation of General Statutes §§ 21a-277 (a)3 and possession of a narcotic substance with the intent to sell within 1500 feet of a school in violation of General Statutes §§ 21a-278a (b).4 The defendant claims that the court improperly (1) denied his motion to suppress statements that he allegedly made during the arrest, (2) denied his motion to suppress tangible evidence, (3) overruled his objection to a map offered into evidence by the state, (4) denied his motion for judgment of acquittal and (5) denied his motion in limine seeking to preclude the prosecution from impeaching him by introducing his prior felony record. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 28, 1996, Officers William Fox and Henry Racki of the Waterbury police department were patrolling Walnut Street and the surrounding area. At approximately 10:30 p.m., the officers drove onto Walnut Street and immediately smelled the odor of burning marijuana through the open window of their police cruiser. They saw four to five young males standing on the sidewalk near the homes at 19 through 23 Walnut Street. While driving past the group, Fox saw one of the young men smoking a cigarette-like object. The officers decided to circle back to Walnut Street to further investigate the group. When they returned, the young men were standing in the same place, and both officers noticed the same strong odor of marijuana. Fox drove past the group for the second time and quickly turned into the driveway of 23 Walnut Street.

The officers got out of the cruiser and walked toward the group, which was about fifteen feet from them. The men became visibly tense and stepped back from one another as the officers approached. No one in the group immediately attempted to flee. The defendant, however, turned and began to walk in the direction of 19 Walnut Street. Fox, who was carrying a flashlight, walked past the group of young men and followed the defendant. Racki maintained a distance of approximately ten feet between himself and Fox at all times.

When he was approximately ten feet from the defendant, Fox loudly commanded, "Stop! Police!" The defendant ignored Fox and continued walking toward 19 Walnut Street. With the aid of his flashlight, Fox was able to see a plastic bag in the defendant's right hand. Fox increased his pace and closed the distance between him and the defendant to approximately six feet. The defendant then entered the driveway of 19 Walnut Street and walked directly toward a garbage can that was approximately fifteen feet from the end of the driveway and near the front of the house. Fox, who was still following the defendant closely, was able to see that the defendant still possessed the bag that Fox had seen earlier. When the defendant reached the garbage can, Fox saw him dip his right hand into the can, then pull it out and spin around to display his empty hands. The defendant then addressed Fox and Racki, stating, "What's up?" or, "What's going on?"

Fox approached the garbage can and retrieved a clear plastic bag that was in plain view on top of the refuse. The bag contained twenty-six smaller ziplocked bags, each of which contained freebase cocaine, also known as crack.5

After Fox confiscated the drugs, he placed the defendant under arrest, charging him with possession of cocaine with intent to sell. The defendant stated that the bag was not his and that the officers did not have the right to enter his property6 without a search warrant. The officers searched the defendant and found $1130. While the officers were taking the defendant to the police car, the defendant asked Fox not to arrest him in connection with the drugs and said that he would make it worth his while.7

The jury returned verdicts of guilty on all three counts of the information. This appeal followed.

I.

The defendant first claims that the court improperly denied his motion to suppress statements that he allegedly made during and after his arrest. The defendant, who was not read his Miranda8 rights at the time of his arrest, claims that the statements resulted from a custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We do not agree.

"Our Supreme Court has consistently held that `two conditions must exist before a criminal suspect is entitled to Miranda warnings: (1) the defendant must be in the custody of law enforcement officials; and (2) the defendant must be subjected to interrogation. State v. Burak, 201 Conn. 517, 531, 518 A.2d 639 (1986); State v. Doehrer, 200 Conn. 642, 646, 513 A.2d 58 (1986); State v. Brown, 199 Conn. 47, 51, 505 A.2d 1225 (1986).' State v. Copeland, 205 Conn. 201, 206, 530 A.2d 603 (1987)." State v. Jackson, 28 Conn. App. 721, 725, 613 A.2d 846, cert. denied, 224 Conn. 904, 615 A.2d 1045 (1992). In this case, there is no question that the defendant was in the custody of law enforcement officials for Miranda purposes. The state also concedes, and the record reflects, that the officers did not advise the defendant of his Miranda rights. The sole issue is whether the defendant was subjected to interrogation at the time he made the statements.

"The term interrogation under Miranda refers both to express questioning and to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. State v. Vitale, 197 Conn. 396, 411, 497 A.2d 956 (1985), quoting Rhode Island v. Innis, 446 U.S. 291, [301], 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). A statement which is not elicited as a result of interrogation, but is given freely and voluntarily without any compelling influence, is admissible in evidence. State v. Copeland, supra, [205 Conn.] 207. It is the defendant's burden to show that he was interrogated. State v. Doehrer, supra, [200 Conn.] 647." (Internal quotation marks omitted.) State v. Jackson, supra, 28 Conn. App. 725.

The defendant claims that Fox's act of picking up the bag of crack cocaine in front of the defendant was coercive conduct designed to elicit an incriminating response. The defendant cites State v. Krajger, 182 Conn. 497, 438 A.2d 745 (1980), for this proposition, but the facts of Krajger are far different from those here.

In Krajger, our Supreme Court held that the action of a police officer constituted custodial interrogation for Miranda purposes when the officer held up a jacket in front of the defendant's cell and stated, "Bella, this is your jacket. You left it here last time you were here when you ran out of the building."9 (Internal quotation marks omitted.) Id., 499 and n.2. The defendant responded, "Yes, that's my jacket." Id., 499. The court further stated that "[a]lthough the query was not posed in the form of a question, it clearly was interrogation in that the police conduct was reasonably likely to elicit an incriminating response." (Internal quotation marks omitted.) Id., 499 n.2.

Fox testified at the suppression hearing as follows: "I picked up the bag. There was -- two of the smaller bags were falling out of the bag. I picked them up and put them in. At that time I stated something to the effect [of], `[Racki], watch him.' I searched a little bit more in the garbage can. I swirled it around. There was no other plastic bags. There was no other what appeared to be narcotics in there, and at that time I placed [the defendant] under arrest." The defendant claims that this testimony supports his assertion.

Fox's conduct in picking up the bag from the garbage can in the presence of the defendant was not designed to elicit an incriminating response. To hold otherwise would bar any law enforcement officer from retrieving the objects of his investigation in the presence of a suspect. There is nothing in the testimony that suggests that Fox, by his actions, was attempting to elicit any kind of response from the defendant. Because there was no interrogation, the defendant's statements were not subject to suppression pursuant to Miranda.

II.

The defendant next claims that the court improperly denied his motion to suppress the drugs seized by the police officer because the seizure violated the defendant's rights under the fourth amendment to the United States constitution and under article first, §§ 7, of the constitution of Connecticut. After examining the totality of the circumstances, the court, in its memorandum of decision denying the motion, found that "Fox had a reasonable and articulable suspicion that the defendant was engaging in or about to [engage] in criminal activity, namely possession or sale of illegal drugs. . . . Thus, Officer Fox's commands to halt were justified and his plain view of the defendant's disposal of the plastic bag into the garbage can in a public area justified its retrieving." We agree with the trial court.

"Under both the federal and state constitutions, police may detain an individual for investigative purposes if there is a reasonable and articulable suspicion that the individual is engaged in or about to engage in criminal activity. State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990). [T]he police officer must be able to point to...

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