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State v. Wilson-Bey

Court of Appeals of Connecticut

April 3, 1990

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

Page 373

Argued Dec. 14, 1989.

Certification Denied May 3, 1990.

Page 374

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.

[21 Conn.App. 163] 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 [21 Conn.App. 164] failing to comply with General Statutes § 54-84(b) [1] concerning his failure to testify, and (6) in refusing to give the jury a

Page 375

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.

[21 Conn.App. 165] 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 .

[21 Conn.App. 166] 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 ...


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