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State v. Cane

Appellate Court of Connecticut

September 24, 2019

STATE of Connecticut
v.
Robert A. CANE

         Argued April 10, 2019

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         The Superior Court, Judicial District of New Britain, Keegan, J.

          Daniel M. Erwin, Bethany, 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.

         [193 Conn.App. 98] The defendant, Robert A. Cane, appeals from the judgment of conviction, rendered following a jury trial, of two counts of criminal possession of a

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[193 Conn.App. 99] 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 [193 Conn.App. 100] 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]

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          While Sergeant Powers was on the phone with the defendant, Detectives Lamontagne and Mordasiewicz watched the defendant exit his home several times,[4] [193 Conn.App. 101] 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 [193 Conn.App. 102] 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

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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 [193 Conn.App. 103] 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 [193 Conn.App. 104] 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

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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 [193 Conn.App. 105] 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 [193 Conn.App. 106] 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

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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 ...


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