State v. Zarick, 14465
| Decision Date | 17 August 1993 |
| Docket Number | No. 14465,14465 |
| Citation | 630 A.2d 565,227 Conn. 207 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Nikolai A. ZARICK. |
John R. Williams, New Haven, for the appellant (defendant).
Timothy J. Sugrue, Asst. State's Atty., with whom were John M. Massameno, Sr. Asst. State's Atty., and, on the brief, John M. Bailey, State's Atty., for the appellee (state).
Before BORDEN, BERDON, NORCOTT, KATZ and DUPONT, JJ.
The defendant, Nikolai A. Zarick, appeals from the judgment of conviction, following conditional pleas of nolo contendere pursuant to General Statutes § 54-94a, 1 to the following charges: (1) one count of employing a minor in an obscene performance in violation of General Statutes § 53a-196a; (2) one count of sexual assault in the first degree in violation of General Statutes § 53a-70; (3) four counts of being an accessory to risk of injury to a child in violation of General Statutes §§ 53a-8 and 53-21; (4) eight counts of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1); (5) three counts of risk of injury to a child in violation of General Statutes § 53-21; (6) one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(1)(A); (7) twelve counts of being an accessory to sexual assault in the second degree in violation of General Statutes §§ 53a-8 and 53a-71(a)(1); and (8) two counts of conspiracy to commit risk of injury to a child in violation of General Statutes §§ 53a-48 and 53-21. 2 Following this plea, the defendant was sentenced to a term of imprisonment of twenty-eight years. The defendant appealed to this court pursuant to General Statutes § 51-199(b)(3). 3
The defendant claims that the denial of his motion to suppress evidence seized pursuant to the search warrant was improper because: (1) the trial court refused the defendant's request to require the testimony of Judge Anne C. Dranginis, who had issued the search warrant, and Judge Charles D. Gill, who the defendant claims abandoned his judicial role by providing the police with a Federal Bureau of Investigation pamphlet concerning the preparation of warrants in child molestation cases; (2) the search warrant was issued by a judge who was not neutral and detached; (3) the issuance of the warrant and the seizures that were conducted pursuant to it violated the first amendment to the United States constitution as applied to the states by the due process clause of the fourteenth amendment; (4) the warrant was issued without probable cause; (5) the warrant was sufficiently vague to render it general and overbroad; (6) seizures were made by the police that were not authorized by the warrant; (7) development of film seized by the police constituted an additional search that required securing a second warrant to authorize that search under the United States and Connecticut constitutions; and (8) the acquisition by the Massachusetts police of 194 photographs constituted an illegal seizure of those photographs, thus tainting the subsequent issuance of the warrant. The defendant also claims that he was convicted of multiple crimes arising out of a single offense, which constituted a violation of the fifth amendment to the United States constitution as applied to the states by the due process clause of the fourteenth amendment and the separation of powers provisions of article second of the Connecticut constitution. We now affirm the judgment of the trial court.
The trial court found the following facts in connection with the defendant's motion to suppress. On or about August 19, 1987, Robin Zarick, the wife of the defendant, left several rolls of film at a Shop Rite supermarket in Bristol to be developed. The film was forwarded to Guardian Photo (Guardian), a commercial developing laboratory in Auburn, Massachusetts. Guardian had a company policy to bring to the attention of the police questionable photographs sent to it for development.
On August 21, 1987, Guardian's plant manager brought the Zarick photographs to the attention of the Auburn police department. On the basis of Robin Zarick's return address on the film developing envelopes, the Auburn police referred the matter to the police in Plymouth, Connecticut, and delivered the photographs to the Plymouth police department. These photographs (hereafter, the Massachusetts photographs) consisted of 194 photographs, some of which depicted breasts and genitalia of children, as well as naked boys and girls in sexually explicit positions and poses. In addition, some of the Massachusetts photographs depicted costumed children wearing heavy makeup in sexually suggestive poses.
After viewing these photographs, officers of the Plymouth police department prepared a search warrant application for the Zarick estate in Plymouth. One of the officers responsible for preparing the search warrant application consulted Superior Court Judge Charles D. Gill for advice in connection therewith. 4 Judge Gill was known by the officer to be an expert in the area of abused and neglected children. Judge Gill provided the officers with a Federal Bureau of Investigation pamphlet and an investigative manual from the Center for Missing and Exploited Children.
Subsequently, on the evening of August 22, 1987, the Plymouth police took the completed warrant application to Judge Anne C. Dranginis for her review. 5 In addition to the warrant application, the officers brought with them the Massachusetts photographs for Judge Dranginis to examine. Judge Dranginis concluded that the warrant application showed probable cause for the crime of risk of injury to a child and issued the search warrant. The record does not indicate whether Judge Dranginis examined the Massachusetts photographs prior to or subsequent to the issuance of the warrant.
The warrant was executed on the morning of August 23, 1987. The police seized numerous items of evidence, including sexually explicit photographs, undeveloped film, props and model release forms prepared by the defendant or Robin Zarick. The police also left a significant amount of evidence that they deemed not to fall within the ambit of items described in the warrant.
The defendant filed several motions to suppress evidence seized in connection with this search and to dismiss certain of the charges against him. The trial court denied these motions in part. 6 Following adverse rulings on these motions, the defendant entered pleas of nolo contendere to the above--referenced thirty-two charges. This appeal followed the ensuing judgment of conviction.
The defendant first claims that the trial court improperly refused to allow him to call Judge Dranginis and Judge Gill to testify at the suppression hearing. The defendant argued that such testimony was required to allow him to explore the extent and scope of assistance provided to the police by Judge Gill, and any possible communication between Judge Gill and Judge Dranginis that could have tainted the warrant process and Judge Dranginis' state of mind when she issued the warrant. We disagree.
The defendant sought to call Judge Gill to determine whether he had discussed the warrant affidavit with Judge Dranginis prior to its issuance. There is no evidence in the record to indicate that such a discussion occurred. 7 The record also indicates that Judge Gill's assistance to the police consisted solely of providing a Federal Bureau of Investigation pamphlet and a manual from the Center for Missing and Exploited Children. 8
The threshold for requiring the testimony of sitting Superior Court judges as witnesses is high. Such compulsion in Connecticut is disfavored because of concern with the interruption of court business as well as a desire to avoid abuse or harassment of sitting judges. Woodward v. Waterbury, 113 Conn. 457, 465, 155 A. 825 (1931); see also C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1988) § 7.8. To challenge the veracity or accuracy of statements made by an affiant in connection with the preparation of a warrant, a defendant must make a "substantial preliminary showing" of misconduct by the affiant. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978); State v. Rodriguez, 223 Conn. 127, 144, 613 A.2d 211 (1992). 9
A defendant challenging the role of an issuing judge in connection with the issuance of a warrant presents a claim analogous to the challenge of an affiant's statements under Franks v. Delaware, supra. Such a challenge requires at a minimum the same substantial preliminary showing of misconduct that is required in the case of a challenge to an affiant's statements. Our review of the record indicates that there has been no showing by the defendant of any misconduct on the part of Judge Gill that would have justified calling him as a witness. Unsubstantiated, purely speculative assertions cannot substitute for such a showing.
The defendant also sought to call Judge Dranginis to question her in connection with her viewing of the Massachusetts photographs. He claims that viewing the photographs may have influenced her decision as to the existence of probable cause by causing her to lose her neutrality. In the alternative, the defendant argues that viewing the photographs would have prevented a finding of probable cause by Judge Dranginis because the affidavit exaggerates the sexual content of the photographs. We disagree.
Although it is not in dispute that Judge Dranginis viewed some portion of the Massachusetts photographs, the record does not establish whether she viewed them before or after issuing the warrant. 10 Judge Dranginis' viewing of the photographs was irrelevant to the propriety of the issuance of the warrant, because the information contained within the four corners of the supporting affidavit was sufficient to allow a judge to find probable cause to issue the warrant. 11 State v. Couture, 194 Conn. 530, 536, ...
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