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State v. Cane

Court of Appeals of Connecticut

September 24, 2019

STATE OF CONNECTICUT
v.
ROBERT A. CANE

          Argued April 10, 2019

         Two substitute informations charging the defendant, in the first case, with four counts of the crime of kidnapping in the first degree, two counts each of the crimes of kidnapping in the first degree with a firearm, assault in the first degree and intimidation of a witness, and with one count of the crime of assault in the second degree, and, in the second case, with three counts of the crime of criminal possession of ammunition, two counts of the crime of criminal possession of a firearm, and with one count each of the crimes of criminal possession of a pistol or revolver, possession of a controlled substance with intent to sell, operation of a drug factory and possession of a controlled substance with intent to sell within 1500 feet of a school, brought to the Superior Court in the judicial district of New Britain, geographical area number fifteen, where the court, Keegan, J., granted the state’s motion for joinder; thereafter, the court denied the defendant’s motion to suppress certain evidence; subsequently, the matter was tried to the jury; thereafter, the state filed a substitute information in the second case, charging the defendant with three counts of the crime of criminal possession of ammunition, two counts of the crime of criminal possession of a firearm, and one count each of the crimes of possession of a controlled substance with intent to sell and possession of a controlled substance with intent to sell within 1500 feet of a school; verdict of guilty of three counts of criminal possession of ammunition, two counts of criminal possession of a firearm, and one count each of possession of a controlled substance with intent to sell and possession of a controlled substance with intent to sell within 1500 feet of a school; subsequently, the court granted the defendant’s motion for a judgment of acquittal as to the charge of possession of a controlled substance with intent to sell within 1500 feet of a school and rendered judgment in accordance with the verdict, from which the defendant appealed to this court. Affirmed.

          Daniel M. Erwin, for the appellant (defendant).

          Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were Brian Preleski, state’s attorney, and Helen J. McLellan, senior assistant state’s attorney, for the appellee (state).

          Alvord, Moll and Flynn, Js.

          OPINION

          ALVORD, J.

         The defendant, Robert A. Cane, appeals from the judgment of conviction, rendered following a jury trial, of two counts of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), three counts of criminal possession of ammunition in violation of General Statutes § 53a-217 (a) (1), and one count of possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b).[1] On appeal, the defendant claims that the trial court (1) erroneously denied his motion to suppress evidence that was obtained in violation of his right to be free from unreasonable searches and seizures, (2) improperly granted the state’s motion for joinder of the two separate cases against him for trial, and (3) demonstrated judicial bias, thereby violating his right to due process. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. On October 7, 2013, the New Britain Police Department received a complaint that the defendant had kidnapped and assaulted two women, D and P, at his home, located at 830 Slater Road in New Britain, during the weekend of October 5 and 6, 2013. D’s son reported that D was in the intensive care unit at the Hospital of Central Connecticut in New Britain as a result of her injuries.

         At approximately 3:30 p.m. on October 7, 2013, as the police began to investigate these allegations, Michael Steele and Kyle Lamontagne, two plainclothes detectives with the New Britain Police Department, went to the defendant’s home. They conducted surveillance from an unmarked police vehicle parked across the street from the defendant’s home in order to determine whether the defendant was at his home and to secure the premises. At approximately 4 p.m., Karl Mordasiewicz, also a detective with the New Britain Police Department, relieved Detective Steele from his position in the unmarked vehicle. Detectives Lamontagne and Mordasiewicz eventually left the vehicle and began to surveil the defendant’s home from the rear porch of a neighboring property.[2]

         Additional police officers arrived shortly thereafter. The police wanted to speak to the defendant about the kidnapping and assault allegations and, because the defendant was reported to have had a firearm when the kidnappings and assaults were alleged to have occurred, they wanted to speak to the defendant outside of his home. Arthur Powers, Jr., a sergeant with the New Britain Police Department, who had known the defendant since the 1970s, called the defendant’s cell phone number to try to encourage him to speak voluntarily with the officers.[3]

         While Sergeant Powers was on the phone with the defendant, Detectives Lamontagne and Mordasiewicz watched the defendant exit his home several times, [4]walk in the area near his Cadillac, and reenter his home. At one point, Detectives Lamontagne and Mordasiewicz observed the lights on the Cadillac flash and heard the engine run for approximately fifteen seconds. Sergeant Powers asked the defendant if he had started the Cadillac, and the defendant responded that, although he had the keys, he had not started the car remotely. The defendant eventually walked toward the fence that bordered his property, at which time he was arrested.[5] After arresting the defendant, the police conducted a protective sweep of the defendant’s home.

         The next day, on October 8, 2013, the police applied for a search and seizure warrant pertaining to the defendant’s residence. The search warrant was issued at noon and executed at approximately 12:55 p.m. On the first floor of the defendant’s home, the police found a rifle, which was located in a closet, and glassine bags, which were found in the kitchen. In a bedroom on the second floor of the defendant’s home, the police found three boxes of Blazer Brass brand ammunition, a gun holster, a gun cleaning kit, a "loader" that assists with loading ammunition into a magazine for a firearm, and a plastic bag containing ten shotgun shells. In addition, the police found a metal box containing various types of ammunition in the closet of that bedroom. In a different bedroom also on the second floor of the defendant’s home, the police found a small amount of marijuana, various lighting and power sources, and a scale. In the attic, the police found a large bag, which weighed approximately ten pounds, containing marijuana, sticks and stems of marijuana plants, cardboard material, and soil.

         The police did not locate all of the evidence they had been seeking in the defendant’s home, including a firearm and clothing associated with the kidnapping and assault allegations. Therefore, later that same day, the police applied for a search warrant pertaining to a Cadillac owned by the defendant. Although there had been several additional vehicles on the defendant’s property, the police applied for a search warrant only with respect to the Cadillac because the police had observed the defendant walking in the area of that vehicle, and it had been the vehicle that appeared to have been remotely started. The warrant was issued and executed that evening. Inside a bag in the trunk of the Cadillac, the police found a nine millimeter Smith and Wesson handgun, two magazines loaded with ammunition, and a gun holster.

         The state initially charged the defendant in two separate informations. In the first information, filed in Docket No. CR-13-0270252-T, the defendant was charged with two counts of kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a (a), two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), two counts of kidnapping in the first degree in violation of § 53a-92 (a) (2) (C), one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), one count of assault in the first degree in violation of § 53a-59 (a) (3), one count of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and two counts of intimidation of a witness in violation of General Statutes § 53a-151a (a) (2). In the second information, filed in Docket No. CR-13-0270260-S, the defendant was charged with two counts of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), three counts of criminal possession of ammunition in violation of § 53a-217 (a) (1), one count of possession of a controlled substance with intent to sell in violation of § 21a-277 (b), and one count of possession of a controlled substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b) On September 29, 2016, the state filed a motion for joinder of the two informations.[6] At a hearing on October 24, 2016, the defendant stated that he had no objection to the joinder, and the court granted the state’s motion.

         A jury trial followed, at the conclusion of which the jury acquitted the defendant of the charges set forth in the first information and convicted him of the charges set forth in the second information. The court accepted the verdict but thereafter granted the defendant’s motion for a judgment of acquittal as to the count of possession of a controlled substance with intent to sell within 1500 feet of a school. The court imposed a total effective sentence of thirteen years of imprisonment. This appeal followed. Additional facts and procedural history will be set forth as necessary.

         I

         The defendant first claims that the court erroneously denied his motion to suppress evidence that was obtained in violation of his right to be free from unreasonable searches and seizures under the fourth amendment to the United States constitution[7] and article first, § 7, of the Connecticut constitution.[8] Specifically, he argues that the evidence should have been suppressed because (1) the police conducted an unlawful protective sweep of his home, (2) he was constructively seized by the police, and (3) the search warrant for his vehicle was not supported by probable cause.

         The following additional facts and procedural history are relevant to our resolution of these claims. On October 8, 2013, Adam Rembisz, a detective with the New Britain Police Department, and Michael Grossi, a sergeant with the New Britain Police Department (affiants), applied for a search and seizure warrant pertaining to the defendant’s residence. The affidavit in support of the application for the search warrant detailed the information that the police had received with respect to the kidnapping and assault allegations.

         In addition, it averred, in relevant part, that "a protective sweep of the house was conducted and in plain view a roll of duct tape, handcuffs, (2) laptop computers, and (1) [iPad] was observed inside the living room. In a second floor bedroom officers observed an ax handle, baseball bat, and a cane.[9] [Detective Kevin] Artruc also observed a green leafed substance, which through his past training, [he] believes to be marijuana."[10] (Footnote added.)

         As we previously have stated, the affiants applied for a search warrant pertaining to the defendant’s vehicle after they executed the search warrant pertaining to the defendant’s home. The affidavit submitted in support of the application for the second search warrant averred, in addition to the information that had been contained in the application for the first warrant, that: "[N]o handgun, yellow shirt, steel toe boots were located as described by the victim, however during the incident prior to [the defendant’s] being arrested he was observed to walk back and forth to a black Cadillac, bearing registration 137XHF. Responding officers heard the alarm that is commonly sounded when the vehicle is locked or unlocked with a remote as [the defendant] walked to the vehicle. [Department of Motor Vehicle] records show that the said vehicle is registered to the defendant. . . . [The] affiants believe that [the defendant] could have brought evidence to the vehicle from the crime scene within the home prior to surrendering to the police as the handgun, dog collar, yellow shirt, [and] steel toe boots were not located within the residence."

         Prior to trial, the defendant filed a motion to suppress "all evidence obtained through warrantless searches of his home and automobile on . . . October 7, 2013, " on the grounds that (1) "there were no exigent circumstances or any other reasons" to support the protective sweep, and the evidence would not be admissible under the inevitable discovery doctrine, and (2) "there were no exigent circumstances or any other reasons" to support the "warrantless search" of the defendant’s vehicle, and the evidence would not be admissible under the inevitable discovery doctrine.

         In his memorandum of law in support of his motion, the defendant argued that with respect to the protective sweep, "there is no evidence . . . that the police had any information whatsoever that there may have been any other people inside [the defendant’s] home . . . ." As to the search of the defendant’s vehicle, the defendant argued that "[t]here were no ‘exigent circumstances’ that would have allowed the police to perform the warrantless search of [the defendant’s] automobile."

         On November 1 and 2, 2016, the court held a hearing on the defendant’s motion to suppress. The court heard testimony from the defendant and several members of the New Britain Police Department. In addition, it admitted into evidence photographs of the defendant’s property, a recording of the phone conversation between Sergeant Powers and the defendant, and copies of the search warrants, which included the warrant applications and the affidavits supporting the applications.

         At the hearing, the defendant argued that there was no evidence that any other person was inside of the defendant’s home to justify the protective sweep. The defendant did not make any additional arguments with respect to the search of the vehicle.

         On November 3, 2016, the court issued its memorandum of decision denying the defendant’s motion to suppress. The court determined that (1) the protective sweep was lawful and, even if it were not lawful, the evidence would nonetheless be admissible pursuant to the inevitable discovery doctrine, and (2) the search of the defendant’s vehicle had been executed pursuant to a search warrant.

         The court made the following findings of fact in support of its determination: "On October 7, 2013, at approximately 1:30 p.m., the New Britain police were informed of a serious assault upon two women in a home located at 830 Slater Road. Officer Mark DePinto spoke with [D’s son], who relayed that his mother and another woman were tied up, severely beaten and ultimately escaped from 830 Slater Road. [D’s son] also relayed that his mother was currently in the hospital, in the intensive care unit. The location of the second female was unknown at this time. [D’s son] told DePinto that the home belonged to the defendant . . . and that [the defendant] had indicated he would engage in a shootout with the police if they came to the house.

         "The New Britain police patrol division prepared a plan of action: locate [the defendant], any witnesses, the second female injured and present this to the detectives for follow-up investigation. Plainclothes detectives were assigned to surveil 830 Slater Road, and other officers began to gather intelligence about [the defendant]. In reviewing his criminal history, the investigating officers learned [that the defendant] had serious felony convictions and, in light of that information that a weapon was used during the assaults and that [the defendant] possessed weapons in the house, the special response team was also called to the scene. At approximately 2:15 p.m., [Sergeant] Carlos Burgos met with officers in an area near 830 Slater Road to discuss potential scenarios and the safety concerns for the neighbors in the area as well as for the responding officers.

         "Photographs of the property confirm the testimony describing the area. There was a brick, two-story dwelling with a steel fence around a portion of the front yard, and enclosed part of the driveway, extending toward a garage in the rear of the property. A gate across the driveway was locked and from the street, a black car could be seen. There was no contact with [the defendant] up to this time. Simultaneous to the surveillance, other officers were gathering information and relaying it to Burgos and others at the Slater Road address. After 5:30 p.m., the police learned that a former girlfriend of [the defendant] had spoken to him, and the police attempted to reach the defendant over the telephone. The police then used sirens and other loud noises to see if anyone in the house would respond. [The defendant] then exited his house. A home phone number for [the defendant] was obtained, and verbal contact was made first by a dispatch officer and then by [Sergeant] Arthur Powers. Powers negotiated with [the defendant] for over thirty-five minutes to comply with police directives to go to the fence in the front of the house and speak with the police. The recording of the conversation was entered as an exhibit during the hearing. [The defendant] was angry, agitated and uncooperative with both Powers and the police at the house. [The defendant] repeatedly used profane and discriminatory language, often shouting his tirades. He threatened to loosen his dog upon the police officers and taunted the police to shoot him. [The defendant] was distrustful of the police. From the early moments of the recorded conversation, [the defendant] demeaned and blamed the two women victims.

         "On-scene officers observed [the defendant] pacing the property, going in and out of the house and, at one point, disrobing, purportedly to show [that] he was unarmed. He was seen holding a knife. One officer saw the rear taillights of the black automobile in the driveway turn on, and when Powers asked him if he turned the car on remotely, [the defendant] denied it. Other officers observed movement inside the house at multiple windows.

         "Other officers continued to seek information regarding the incident. DePinto learned from [the defendant’s] former girlfriend that she had been to 830 Slater Road over the preceding weekend and had seen the two females, who were still present when she left. She also indicated that [the defendant] was acting irrationally and out of control. A written statement by [D’s son] was taken from 5:15 to 5:50 p.m. There, the police learned that [D] had told him that [the defendant] was affiliated with the Outlaw motorcycle gang, he had guns in the house and that he had people watching his house when he wasn’t home. They also learned that items of potential evidentiary value could be found within the house.

         "At approximately 6:30 p.m., [the defendant] approached the fence to speak with the police, and he was seized by officers and arrested for breach of the peace, threatening and interfering with the police. [Lieutenant John] Rodriguez made the decision to conduct a protective sweep of the house. He wanted to ensure that there were no victims inside the home, he wanted to ensure that there was no one to endanger officers on the scene, and he wanted to ensure that any evidence would be secure. Within two to three minutes, the sweep was concluded. A search warrant for 830 Slater Road was secured on October 8, 2013, at noon; a search warrant for the Cadillac was secured on the same day at 5:17 p.m."[11]

         A

         The defendant first argues that the court erred in denying his motion to suppress because the protective sweep was unlawful. Specifically, he argues that the police had "no basis to believe a third party was in the home, " and, therefore, they lacked an articulable basis on which to justify the protective sweep. We disagree.

         The court, in its memorandum of decision denying the defendant’s motion to suppress, determined that the protective sweep was lawful. It found: "Based upon all of the articulable facts and rational inferences known to the New Britain police at the time of the defendant’s apprehension, a reasonably prudent officer would conclude the following: a serious assault of two women had occurred within the prior twenty-four to thirty-six hours at 830 Slater Road. One victim was being treated for serious injuries at the hospital. That victim told her son that she was tied up, beaten, hit with a pistol and physically degraded. She said that the defendant had guns in the house and he had people [who] watched his house. After several hours of no contact [between the police and] the defendant while the home was under surveillance, he exited the house. He was uncooperative with the police, and his behavior was erratic, agitated and at times bizarre. The defendant had a history of felony convictions. Movement was seen within the house and a car in the driveway was started, with the defendant denying that he did it. Based upon the defendant’s behavior on scene, the police were within their rights to disbelieve the defendant’s statements that he possessed no weapons and no[that] one else was inside the house."[12]

         "[T]he standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . . . . [W]here the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . ." (Internal quotation marks omitted.) State v. Kendrick, 314 Conn. 212, 222, 100 A.3d 821 (2014). Accordingly, the trial court’s legal conclusion regarding the applicability of the protective sweep doctrine is subject to plenary review. See id.; see also State v. Spencer, 268 Conn. 575, 585, 848 A.2d 1183 (2004).

         "It is axiomatic that the police may not enter the home without a warrant or consent, unless one of the established exceptions to the warrant requirement is met." (Internal quotation marks omitted.) State v. Kendrick, supra, 314 Conn. 224. "All three exceptions [to the warrant requirement], the exigent circumstances doctrine, the protective sweep doctrine and the emergency doctrine, must be supported by a reasonable belief that immediate action was necessary." Id., 225.

         "The protective sweep doctrine . . . is rooted in the investigative and crime control function of the police. . . . As its name suggests, the purpose of the doctrine is to allow police officers to take steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack." (Internal quotation marks omitted.) Id., 229. "Recognizing the often competing interests of the individual’s expectation of privacy and the officers’ safety, the court [in Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)] . . . determined that there were two levels of protective sweeps. Concerning the first tier of protective sweeps, the court concluded that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. . . . Concerning the second tier of protective sweeps, the court concluded: Beyond that . . . we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."[13] (Citation omitted; internal quotation marks omitted). State v. Spencer, supra, 268 Conn. 588.

         "Although the United States Supreme Court never has ruled on the constitutionality of a protective sweep of a home, incident to an arrest occurring just outside that home, the federal courts that have addressed the issue uniformly have held that the reasoning of Buie applies to that situation." Id., 589.

         In Spencer, our Supreme Court recognized "that Buie was grounded in the principle that arresting officers have an immediate interest in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. . . . This important safety interest is not diminished simply because the arrest has occurred just outside of the home." (Citation omitted; internal quotation marks omitted.) Id., 590; see also United States v. Colbert, 76 F.3d 773, 776 (6th Cir. 1996) ("in some circumstances, an arrest taking place just outside a home may pose an equally serious threat to the arresting officers").[14]

         Within the first tier of protective sweeps, arresting officers can "as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Maryland v. Buie, supra, 494 U.S. 334. In the present case, the defendant was arrested outside of his home, near the fence line bordering his property. Therefore, the defendant’s home cannot be characterized as a space " ‘immediately adjoining’ " the place of the arrest. See State v. Spencer, supra, 268 Conn. 591. We therefore must determine whether the search in the present case was justifiable as a second tier protective sweep.

         The second tier of protective sweeps under Buie encompasses searches of areas beyond those spaces immediately adjoining the place of arrest. To satisfy the fourth amendment, a second tier protective sweep must be supported by "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Maryland v. Buie, supra, 494 U.S. 334.[15] In this case, because the defendant was in custody, the focus of our inquiry is "whether the arresting officers reasonably believed that someone else inside the [home] might pose a danger to them. . . . In other words, we examine whether there were specific and articulable facts showing that another individual, who posed a danger to the officers or others, was inside the apartment at the time of the arrest. . . . Lack of information [concerning the presence of a third party] cannot provide an articulable basis upon which to justify a protective sweep." (Citations omitted; emphasis altered; internal quotation marks omitted.) State v. Spencer, supra, 268 Conn. 593–94.

         In the present case, the following facts are sufficiently specific and articulable to support a reasonable belief that the defendant’s home harbored a third party posing a danger to those on the arrest scene. First, the police reported that they saw movement within the defendant’s home.[16] Second, the police reported that there were multiple cars on the defendant’s property. Third, it was reported that a car in the driveway was started, and the defendant denied that he was the person who started it. There had been a report of a serious assault of two women that was alleged to have occurred within the prior twenty-four to thirty-six hours at the defendant’s home. One of the women was reportedly being treated for serious injuries and alleged that she was hit with a pistol, indicating the presence of a handgun inside the home that might be used by another individual within the home, thereby posing a danger to police officers and others. In addition, the woman had reported that the defendant had guns in the house and that he had people who watched his house.[17] The defendant’s behavior was erratic, agitated, and at times bizarre. On the basis of the defendant’s behavior on the scene, the court concluded that the police were within their right to discredit the defendant’s statements that he possessed no weapons and that no one else was inside the house.

         These facts are sufficiently specific and articulable to support a reasonable belief that a third party was inside of the home and, on the basis of the information that had been provided to the police regarding the presence of firearms at the home, that the third party posed a danger to those on the arrest scene. Accordingly, we conclude, on the basis of the totality of all the facts and the reasonable inferences drawn ...


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