State v. Brunetti
State v. Brunetti
Opinion of the Court
Opinion
The defendant, Nicholas A. Brunetti, appeals from the judgment of conviction, ren
The jury reasonably could have found the following facts. On the evening of June 23, 2000, thirty-five year old Doris Crain (victim) left her house and walked to Sonny’s Bar on Campbell Avenue in West Haven. After the victim left the bar, she encountered the nineteen year old defendant near the intersection of Campbell Avenue and Main Street. The victim approached the defendant and asked whether he had any marijuana. The defendant replied that he did and asked the victim to smoke with him behind the Washington Avenue Magnet School. After sharing a marijuana cigarette, the defendant and the victim began kissing and engaging in sexual foreplay. After a short time, the defendant
Following the discovery of the victim’s body the next day, the West Haven police department obtained information suggesting that the defendant might be involved in the victim’s murder. Detectives Anthony Buglione and Joseph Biondi (detectives) went to the defendant’s home to question the defendant. The detectives approached the defendant’s parents, who were sitting on the front porch of their home, and asked to speak with the defendant. Anthony Brunetti, Sr., the defendant’s father, went inside the house to find the defendant while the detectives remained outside with the defendant’s mother, Dawn Brunetti. The defendant emerged from the Brunetti home with his father ten to fifteen minutes later. The detectives then told the defendant that they wanted to bring him to the West
At the police station, the detectives questioned the defendant in an interrogation room, while the defendant’s parents remained in the station’s waiting area. Sometime during the questioning, Detective James Sweetman of the West Haven police department and State Trooper Mark Testoni approached the defendant’s parents and asked them to sign a consent form to allow the West Haven police to search the Brunetti residence. The defendant’s father signed the form
The defendant’s dispositive contention on appeal is that because his mother declined to consent to the search of his home, the search was illegal and the evidence found pursuant to the search improperly was admitted into evidence by the trial court. See, e.g., State v. Reynolds, 264 Conn. 1, 42, 836 A.2d 224 (2003) (“[u]nder the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality” [internal quotation marks omitted]), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). More specifically, the defendant contends that, under article first, § 7, of the constitution of Connecticut, when joint occupants have equal control over the premises, and both are present when consent to the search is sought, both joint occupants must give their consent in order for the ensuing search to be valid pursuant to the consent exception. We agree with the defendant.
The following additional facts are relevant to our resolution of this claim. Both of the defendant’s parents testified at trial that the defendant’s mother had been asked to sign a consent to search form, and that she had declined to sign the form. Specifically, when asked whether his wife signed the consent to search form, the defendant’s father stated that “they asked if we
Because the defendant did not preserve this claim properly at trial, he seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and the plain error doctrine. In Golding, we set forth the conditions under which a defendant can prevail on an unpreserved constitutional claim. Id., 239-40. A defendant can prevail only if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. “The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determina
We first conclude that the record in the present case is adequate for review of the defendant’s claim that the search of his home was illegal, and that he therefore has satisfied the first prong of Golding. The dissent criticizes this conclusion as an “egregious misapplication of the first prong of [Golding] . . . .” Application of the standards set forth in Golding itself, however, clearly indicates that the record is adequate for review of the defendant’s claim. In Golding, we stated that “[t]he defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” (Emphasis added.) State v. Golding, supra, 213 Conn. 240.
In the present case, the record is sufficiently clear and unambiguous and contains the factual background necessary for review of the defendant’s claim. Specifically, the trial court’s finding that “[¿]£ is clear that at least one of the parties, one of the parents, declined to consent to [the] search” indicates that the defendant’s mother refused to agree to a search of her home, which she owned jointly with her husband. (Emphasis added.) It is precisely this finding which perfects the record for review. The trial court made this finding after hearing testimony from both of the defendant’s parents concerning the mother’s failure to consent to the search and observing the demeanor of both witnesses as they testified. The trial court emphasized that the failure of the defendant’s mother to consent to the search was “clear.”
The dissent also contends that our conclusion that the record is adequate for review is “unfair to the state” because the state lacked notice that the issue of the defendant’s mother’s consent would be raised on appeal. We note that this view fails to account for the unique nature of a Golding review. Ordinarily, an objection to a particular statement at trial alerts the state to the possibility of the claim being raised on appeal. Because a Golding claim by definition is a claim that has not been raised explicitly at trial, the unavailability of explicit notice to the state is inherent in the exercise of a Golding review.
We turn next to the second prong of Golding, a determination of whether the unpreserved claim is of constitutional magnitude alleging the violation of a fundamental right. We conclude that the defendant’s claim is of constitutional magnitude. Article first, § 7, of our state constitution provides in relevant part: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures . . . .” Because the search of the defendant’s home conducted in the face of an objection by the defendant’s mother clearly implicates the defendant’s right to be 1'ree from unreasonable searches as set forth in article first, § 7, we find that the defendant has satisfied the second prong of Golding.
The third prong of Golding requires us to determine if the alleged constitutional violation exists and clearly deprived the defendant of a fair trial. Because the defendant’s claimed constitutional violation rests on our state constitution, we must employ the analytic framework that this court established in State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992).
The first Geisler factor we consider is the text of article first, § 7, of the constitution of Connecticut, which provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” This court consistently has concluded that the text of article first, § 7, is similar to the language of the fourth amendment to the United States constitution.
“Because the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution were enacted in response to the same historical experience and protect the same fundamental values, the early history of the provisions may be analyzed together.” State v. Miller, 29 Conn. App. 207, 217, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993); see State v. Marsala, supra, 216 Conn. 167-68 n.12. “The language of article first, § 7, which was based upon the fourth amendment, was adopted with little debate.” State v. Mikolinski, 256 Conn. 543, 548, 775 A.2d 274 (2001); see Moore v. Ganim, 233 Conn. 557, 600, 660 A.2d 742 (1995). “It is axiomatic that the right to be secure in one’s home is central to the prohibition of article first, § 7, of the state constitution, against unreasonable intrusions by the state.” State v. Bernier, 246 Conn. 63, 75, 717 A.2d 652 (1998). “This robust protection finds its roots in the fundamental importance of the home as the locus of privacy. The sanctity of the home has a well established place in our jurisprudence. The English common law, upon which much of this country’s constitutional and common law is based, recognized that intrusion into the home constituted especially egregious conduct. From earliest days, the common law drastically limited the authority of law officers to break the door of a house to effect an arrest. Such action invades the precious interest of privacy summed up in the ancient adage that a man’s house is his castle.” (Internal quotation marks omitted.) State
Both the text of article first, § 7, and its historical context ordain the fundamental significance of the constitutional right to privacy in the home. An examination of the third Geisler factor—relevant state precedent— reveals a long-standing recognition of the privacy rights of all occupants of the home, as well as a preference for obtaining warrants in order to conduct searches. Both this court and the United States Supreme Court consistently have stated that a “search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” (Internal quotation marks omitted.) State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). Relevant to the discussion in the present case is the exception for a search conducted pursuant to valid consent. It is well recognized that valid consent to enter and search a home is an exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Jones, supra, 193 Conn. 78-79; State v. Harris, 10 Conn. App. 217, 224, 522 A.2d 323 (1987). “[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party . . . .” United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). “In order for a third party’s consent to a search to be valid, the consenting party must have common authority over the premises to be entered or searched.” State v. Reagan, 11 Conn. App. 540, 544, 528 A.2d 846 (1987).
The common authority principle highlights a critical point in our analysis of the defendant’s claim. It is well
While this court previously has not considered this precise question, in balancing an individual’s rights against police expediency under article first, § 7, “[o]ur cases have consistently held that both the state and federal constitution evince a preference for warrants to protect the individual rights of our citizens.” State v. Trine, 37 Conn. App. 561, 567, 657 A.2d 675 (1995), rev’d on other grounds, 236 Conn. 216, 673 A.2d 1098 (1996). This preference flows from this court’s conjunctive reading of article first, § 7. In construing the provisions of article first, § 7, this court “readfs] the two clauses of article first, § 7, in conjunction—a warrantless search is per se unreasonable, justified only by limited exceptions—rather than in disjunction—a search is valid if it is reasonable, and the presence of
We turn next to the fourth and fifth Geisler factors, an examination of relevant precedent from federal courts and the courts of other states. The United States Supreme Court has not considered explicitly the issue of whether the consent to search of one present joint occupant can override the objection of another present joint occupant. It has considered, however, the issue of third party consent in general. United States v. Matlock, supra, 415 U.S. 164. The Supreme Court in Matlock concluded that a third party who had common authority over a home validly could consent to a search without the consent of the other joint occupant. Id., 169-70. The court further stated, however, that “the consent of one who possesses common authority over premises is valid as against the absent, nonconsenting person with whom that authority is shared.” (Emphasis added.) Id., 170. The Supreme Court has not subsequently elaborated on this statement. As a result, in interpreting Mat-lock, lower courts have reached conflicting conclusions as to whether the third party consent rule applies exclusively in situations where a joint occupant is absent, based on a strict reading of the sentence in Matlock, see id.; or whether the consent of one joint occupant is likewise valid against another joint occupant who is present and objects to the search.
While several federal courts of appeals and state courts seemingly have favored the latter position, we note that many of those cases are distinguishable from the present case. Specifically, several cases validating
In other cases, additional information offered by one joint occupant has affected the nature of the other joint occupant’s consent or objection. In United States v. Morning, 64 F.3d 531, 532 (9th Cir. 1995), the defendant denied the police officers’ request to search her home and replied that she preferred that they obtain a war
We find that after distinguishing many of the state and federal cases adverse to the defendant’s position, few cases supporting the application of the Matlock rule to the present facts remain. To the extent that
Some courts have based their application of the third party consent rule on the reasoning in Matlock that joint occupants “[assume] the risk that one of their number might permit the common area to be searched.” United States v. Matlock, supra, 415 U.S. 171 n.7. In People v. Cosme, 48 N.Y.2d 286, 292, 397 N.E.2d 1319, 422 N.Y.S.2d 652 (1979), the New York Court of Appeals noted that “an individual who possesses the requisite degree of control over specific premises is vested in his own right with the authority to permit an official inspection of such premises and . . . this authority is not circumscribed by any ‘reasonable expectation of privacy’ belonging to co-occupants. Whether the principle is characterized as an ‘assumption of risk’ or a relinquishment of the ‘expectation of privacy’ guaranteed
Several state courts, however, have rejected this broad application of the assumption of risk analysis. In addressing the applicability of Matlock's assumption of risk analysis to circumstances similar to those in the present case, the Washington Supreme Court noted that “since the rule enunciated in Matlock only refers to ‘absent, nonconsenting’ persons, we must determine whether the rationale upon which Matlock rests is equally applicable where the defendant is present at the time of the search. Arguably, one’s ability to control the premises is not subordinated to a joint occupant when one remains on the premises and is able to object to access by others.” State v. Leach, 113 Wash. 2d 735, 740, 782 P.2d 1035 (1989). In In the Matter of the Welfare of D.A.G., 484 N.W.2d 787, 790 (Minn. 1992), the Minnesota Supreme Court noted that “the risk that one co-inhabitant might permit the common area of a jointly occupied premises to be searched in the absence of another is qualitatively different from the risk that a warrantless search will be conducted over the objection of a present joint occupant . . . .”
Professor LaFave acknowledges the division of authority on the proper interpretation of Matlock when one co-occupant objects and the other consents, noting that “commentators have reached conflicting conclusions on the question of whether the consent or the objection must prevail.” 4 W. LaFave, Search and Seizure (4th Ed. 2004) § 8.3 (d), p. 159. He favors giving priority to the objection, noting “the point is that a person’s authority to consent in his ‘own right’ does not go so far as to outweigh an equal claim to privacy by a co-occupant on the scene, and that the risk assumed by joint occupancy is merely an inability to control access to the premises during one’s absence.” Id.
We find most persuasive the reasoning in several cases that focuses on the constitutional right of the present, objecting co-occupant. See, e.g., Silva v. State, 344 So. 2d 559, 562 (Fla. 1977) (“a present, objecting party should not have his constitutional rights ignored . . . [due to a] property interest shared with another”); State v. Leach, supra, 113 Wash. 2d 744 (“[S]hould the cohabitant be present and able to object, the police must also obtain the cohabitant’s consent. Any other rule exalts expediency over an individual’s Fourth Amendment guarantees.”). Such reasoning is consistent with our strong constitutional and historical prefer
Finally, we consider the sixth Geisler factor, the public policy implications of adopting the defendant’s position.
As is evident from our analysis of the defendant’s claim under the Geisler factors, our own constitution, case law, constitutional history, and public policy clearly favor searches conducted pursuant to a warrant where, as in the present case, the applicability of an exception to the warrant requirement, such as consent, is ambiguous or unclear. We find most persuasive the state court decisions that limit the application of the
We turn, finally, to the fourth prong of Golding. We conclude that the defendant’s claim satisfies the fourth prong of Golding because the state has failed to demonstrate the harmlessness of the constitutional violation beyond a reasonable doubt. State v. Golding, supra, 213 Conn. 240. Having conducted a thorough review of the record, we cannot say that the illegal search in the present case was a harmless violation. The defendant’s bloodstained clothing, which was discovered during the illegal search of the defendant’s home, was key evidence at trial. Some of the clothing was found to contain traces of the victim’s blood as determined by DNA testing.
Because we determine that the search of the defendant’s home was unlawful, the state’s claim that the search purged the taint of the initial unlawful seizure of the defendant must fail. Specifically, the state claims in its brief that “the police acquired probable cause to arrest the defendant through independent means when they lawfully searched his parents’ house and discovered his bloody clothing in their washing machine, a significant intervening circumstance which cut off any causal connection between the [initial unlawful] seizure and the confession.” Our determination that the search of the defendant’s home was unlawful prevents the state from relying on the search as the source of probable cause to arrest the defendant. Because the search cannot serve to purge the taint of the defendant’s initial unlawful seizure, all evidence obtained as fruit of that seizure must be suppressed.
The judgment is reversed and the case is remanded for a new trial.
In this opinion SULLIVAN, C. J., concurred.
The defendant also claims that the trial court: (1) abused its discretion by denying the defendant’s request for a one day continuance to locate a witness; and (2) improperly denied his motion to suppress his second statement to the police. Because our conclusion that the trial court improperly admitted into evidence the defendant’s bloodstained clothing results in this case being remanded for a new trial, we need not consider the first claim, which may not arise again at the new trial. We do not directly address the second claim because the defendant’s second statement to the police resulted from the discovery of the bloodstained clothing and therefore was inadmissible as fruit of the illegal search.
In this appeal, the defendant first contends that the search of his home was illegal because his father’s consent to the search was coerced. Because we conclude that under article first, § 7, of our state constitution, both present joint occupants must consent to the search of jointly controlled property to render the search valid, we need not address this claim.
Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The state claims that the defendant does not have standing to invoke his mother's privacy rights. We disagree. The touchstone to determining whether a person has standing to contest an allegedly illegal search is whether that person has “a legitimate expectation of privacy in the invaded area. . . . The determination of whether such an expectation exists is to be made on a case by case basis . . . and requires a two-part inquiry: first, whether the individual has exhibited an actual subjective expectation of privacy, and second, whether that expectation is one society recognizes as reasonable. . . . Whether a defendant’s actual expectation of privacy . . . is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances.” (Citations omitted; internal quotation marks omitted.) State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).
Indeed, the defendant faced two obstacles to challenging the search of his home: (1) that the warrant exception on which the police relied—consent—was not satisfied; and (2) that the search violated his rights under article first, § 7, of the state constitution. Our conclusion that consent is rendered invalid if any party with authority to object is present and does so addresses the first issue, and the dissent necessarily concedes the second by virtue of its statement that the defendant had a legitimate expectation of privacy in the house. See Rakas v. Illinois, 439 U.S. 128, 148, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978) (concluding that, in determining whether defendant was vicariously asserting another’s fourth amendment right, dispositive question is whether defendant had “legitimate expectation of privacy in the particular areas of the [place] searched”). In other words, by demonstrating his own legitimate expectation of privacy and challenging the search based on his mother’s refusal to consent, the defendant is not vicariously asserting his mother’s constitutional rights, but, rather, is vindicating his own.
At issue in Jones was the defendant’s claim that, although his parents had both signed the consent to search forms, they had merely acquiesced by signing the forms “because they believed that they had no choice.” State v. Jones, supra, 193 Conn. 78.
The dissent also contends that our conclusion that the record is adequate for review is “especially unfair because . . . the state never had any reason to address the issue of the mother’s consent.” An examination of the record, however, reveals that the state had reason to address the issue of the defendant’s mother’s consent at the suppression hearing. It is well established that the state bears the burden of proving lawful consent to a search. State v. Reynolds, supra, 264 Conn. 44. Though the defendant only explicitly challenged the validity of his father’s consent at the suppression hearing, it is clear that the issue of the defendant’s mother’s consent was also implicated in that claim. In the present case, it is undisputed that both the defendant’s mother and father were together when consent to search their home was sought. Because the state could not have foreseen whether it would prevail in establishing the voluntariness of the defendant’s father’s consent, it is clear that it had sufficient opportunity and incentive to address the issue of the defendant’s mother’s consent at the suppression hearing.
We do not conduct an analysis under the federal constitution for two reasons. First, the defendant has briefed his constitutional claim primarily and most substantially under the state constitution, employing the framework set forth in State v. Geisler, supra, 222 Conn. 672. Second, fourth amendment jurisprudence is not instructive with regard to the defendant’s claim in t he present case. The issue of whether the consent of both present joint occupants is required when authorities seek consent to search the occupants’ jointly controlled property has not been addressed directly by the United States Supreme Court. The concurring opinion suggests that we are “deviating from our normal course’’ in resolving this appeal solely under our state constitution. See footnote 4 of the concurring opinion. We disagree. This court, has employed various approaches in deciding whether to analyze a constitutional claim under the federal or our state constitution. See, e.g., State v. Spencer, 268 Conn. 575, 578 n.5, 848 A.2d 1183 (declining to reach
The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
While the central issue in In the Matter of the Welfare of D.A.G., supra, 484 N.W.2d 787, was the enforceability of the consent of an absent joint occupant against apresent objecting joint occupant, the Minnesota Supreme Court addressed in dicta issues relevant to the present case. See id., 789-90.
We note that the defendant’s claim is neutral with respect to the other elements of the sixth Geisler factor: economic and sociological considerations. See State v. Geisler, supra, 222 Conn. 685.
We emphasize that our conclusion leaves the applicability of the third party consent rule unchanged in most cases. As stated in Leach, “the point at which the difficult choice between consent and objection must be made is only where the occupants have equal use and control of the premises and where both are present . . . .” State v. Leach, supra, 113 Wash. 2d 741-42. Our conclusion in the present case only governs cases in which identically situated joint occupants, who are both present when consent is sought, offer conflicting responses when asked to consent to a search of their property.
Specifically, three items of clothing and a towel were removed from the defendant’s home during the search in question. Two items of clothing and the towel tested negative for blood. The third item of clothing, a tank top, tested positive for human blood.
Concurring Opinion
concurring. In this appeal, the state does not challenge the trial court’s finding that the defendant, Nicholas A. Brunetti, had been seized illegally by the police at his home and transported to the police station for interrogation in violation of his rights under the fourth amendment to the federal constitution.
Following an analysis pursuant to State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), the plurality in the present case concludes that, under the circumstances of this case, the defendant is entitled to the suppression of evidence seized from his home pursuant to the prohibition against unreasonable searches and seizures afforded by article first, § 7, of the Connecticut constitution. The plurality does not decide, however, whether the defendant could prevail under the federal constitution, concluding that “fourth amendment jurisprudence is not instructive,” and, therefore, does not decide whether the state constitution affords the defendant greater protection than its federal counterpart. See footnote 7 of the plurality opinion. Because I would conclude that the warrantless search of the defendant’s home was violative of the federal constitution, I write separately.
The defendant filed a motion to suppress the evidence seized from his family’s home in West Haven, claiming that the state could not demonstrate that the consent to search the home was given voluntarily. Following a hearing on the motion, the defendant argued that the state had not proven that the only consent given, the one provided by his father, Anthony Brunetti, Sr., had been the product of a free and voluntary choice because his father had been influenced improperly by the police—specifically, the defendant’s uncle, John Brunetti, a West Haven police detective. The trial court denied the defendant’s motion and, accordingly, allowed the state to introduce into evidence the items seized during that search.
It is clear that the defendant’s unpreserved claim raises an issue of constitutional magnitude. It is beyond dispute that one of the most fundamental propositions of our criminal jurisprudence is “that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); accord State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983). It is equally well settled that, “[a] warrantless search [or entry into one’s home] is not unreasonable under . . . the fourth amendment to the constitution of the United States ... if a person with authority to do so has freely consented .... The state bears the burden of proving that the consent was free and voluntary and that the person who purported to consent had the authority to do so.” (Citations omitted; internal quotation marks omitted.) State v. Reagan, 209 Conn. 1, 7, 546 A.2d 839 (1988). Such consent to search may not be established by mere acquiescence to police authority. State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984).
“ [Wjhether consent to a search has in fact been freely and voluntarily given, or was the product of coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. . . .
Against this backdrop, I turn to the record and the trial court’s findings in its decision regarding the search of the defendant’s home. At the hearing on the motion to suppress, the defendant’s father, Anthony Brunetti, related that West Haven police detectives Joseph Biondi and Anthony Buglione took the defendant to the police station and that he and his wife followed soon thereafter to wait for their son. According to Anthony Brunetti, while he and his wife were waiting at the station, they were approached by Detective James Sweetman and State Trooper Mark Testoni. Sweetman asked both of the defendant’s parents to sign a form giving the police their consent to search the family’s home. Sweetman explained what the form was and informed the defendant’s parents that they had the right not to sign it. Anthony Brunetti testified that, when his wife was asked to sign the consent form, she “declined. She did not want to sign it.” Dawn Brunetti also testified that she refused to sign the consent form.
The trial court denied the defendant’s motion to suppress from the bench, orally articulating the basis of its decision and making specific findings regarding the issue. Of note is the trial court’s discussion rejecting the defendant’s reliance on Jones. The court stated: “[T]his is not an issue as decided in [Jones], one of acquiescence to ... a claim of lawful authority. It is not that. It is clear that at least one of the parties [in the present case], one of the parents declined to consent to [the] search. . . . [The defendant’s father] sought information, information to decide whether or not he should sign the consent. He sought information to make an informed decision. He made it clear for the record that he knew he did not have to sign it. He made that quite clear. There was no coercion, there was no force, there was no mere acquiescence. [The defendant’s father] invited comment by his brother, sought his advice as he should. [His brother is] experienced in
In light of these factors, I would conclude that the record is sufficient for review of the defendant’s claim that his mother’s refusal to consent rendered the search invalid. Moreover, I disagree with the state’s contention that the record merely reflects that the defendant’s mother refused to sign the consent form and that such failure to sign is not tantamount to a refusal to consent. See State v. Harris, supra, 188 Conn. 580 (concluding that defendant’s “expressed willingness to speak constituted an explicit affirmative act evidencing waiver [of the right to refuse consent to the search], which the court could reasonably find persuasive despite the defendant’s initial refusal to sign the waiver form”). As a matter of law, a decision not to sign a consent form does not preclude a finding based on other conduct or statements that the person actually did consent. See id. Indeed, the trial court is bound to consider the totality of the circumstances. Schneckloth v. Bustamonte, supra, 412 U.S. 227. Conversely, however, in the absence of evidence to the contrary, a decision not to sign a consent form reasonably may lead to a finding that the person refused to give his or her consent. In either case, we cannot disturb the trial court’s finding of fact as to consent to search unless that finding is clearly erroneous. State v. Cobb, 251 Conn. 285, 315, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).
On the basis of the totality of the circumstances of the present case, the trial court’s statement that, “[i]t is clear that at least one of the parties, one of the parents declined to consent to [the] search,” reflected its finding that the defendant’s mother in fact had not consented, not that she merely had refused to sign the consent form. The context in which the trial court made that statement supports this conclusion because the court
Indeed, it is evident by comparing the trial court’s discussion of Dawn Brunetti’s consent or lack thereof with its discussion of Anthony Brunetti’s consent that, in the trial court’s view, the decision to sign or not to sign the consent form was synonymous with a decision whether to consent to the search, absent evidence to the contrary. The trial court found that Anthony Brunetti voluntarily had consented to the search of his home based solely on his decision to sign the consent form following a discussion with his brother. The trial court did not discuss consent based on conduct or verbal acquiescence. Rather, the court discussed consent only in the context of the signed form. As I previously have indicated, the court stated: “[Anthony Brunetti] sought information, information to decide whether or not he should sign the consent. He sought information to make an informed decision. He made it clear for the record that he knew he did not have to sign it. He made that quite clear. There was no coercion, there was no force, there was no mere acquiescence. [The defendant’s father] invited comment by his brother, sought his advice as he should. [His brother is] experienced in this area. And based upon that advice, [the defendant’s father] consented to [the] search.” (Emphasis added.) Therefore, the only evidence the trial court pointed to as evidence of Anthony Brunetti’s consent was his decision to sign the form. That decision to sign reflected his consent. Similarly, Dawn Brunetti’s decision not to
Finally, I note that it was the state’s burden to prove that the police had obtained consent to the search.
II
It is well recognized that the voluntary consent of any co-occupant of a residence to search premises jointly occupied is valid against the absent co-occupant, thereby permitting evidence discovered in the search to be used against him at a criminal trial. See Frazier v. Cupp, 394 U.S. 731, 740, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969) (rejecting petitioner’s claim that his cousin’s consent to search of duffel bag, which was being used jointly by both men and had been left in cousin’s home, would not justify seizure of petitioner’s clothing found inside; joint use of bag rendered cousin’s authority to consent to its search clear). In United States v. Matlock,
To date, the United States Supreme Court has not spoken directly on this issue, and other federal and state courts that have considered the issue are split
The minority view, that consent of a co-occupant does not negate the express objection of a present co-occupant, is premised on an understanding of two related principles underlying the majority view. In accordance with the Matlock assumption of risk theory, “the point is that a person’s authority to consent in his ‘own right’ does not go so far as to outweigh an equal claim to privacy by a co-occupant on the scene, and that the risk assumed by joint occupancy is merely an inability to control access to the premises during one’s absence.” (Emphasis added.) Id. Under this view, the courts “have recognized that the assumption of risk inherent in co-occupancy has its limits. An entry or search, even though authorized by a co-occupant, may be so intrusive that it belies the conclusion that the parties assumed or even contemplated the risk of its occurrence by deciding to jointly inhabit the subject residence.” People v. Haskett, 30 Cal. 3d 841, 857, 640 P.2d 776, 180 Cal. Rptr. 640 (1982). Indeed, it is reasoned that “the consent of both is required when both are present because ordinarily, persons with equal ‘rights’ in a place would accommodate each other by not admitting persons over another’s objection while he was present.” (Internal quotation marks omitted.) 3 W. LaFave, supra, § 8.3 (d), p. 159.
Under a related property based theory, an absent co-occupant assumes some risk that present co-occupants may permit others to enter the home, but only because the absent co-occupant has relinquished control over the premises by virtue of his or her absence. The California Court of Appeal has explained that, under the fourth amendment to the federal constitution, “[t]his rule of the authority of a co-occupant to give a consent to search is based upon the actual control which a co-occupant has over premises that are jointly occupied.
This same position, distinguishing between an absent and a present, objecting co-occupant, also has been adopted by the Washington Supreme Court: “Where the police have obtained consent to search from an individual possessing, at best, equal control over the premises, that consent remains valid against a cohabitant, who also possesses equal control, only while the cohabitant is absent. However, should the cohabitant be present and able to object, the police must also obtain the cohabitant’s consent. Any other rule exalts expediency over an individual’s Fourth Amendment guaranties.” (Emphasis added.) State v. Leach, 113 Wash. 2d 735, 744, 782 P.2d 1035 (1989); see State v. Walker, 136 Wash. 678, 684-86, 965 P.2d 1079 (1998) (reaffirming Leach, but refusing to extend it to circumstances in which co-occupant is present but not asked for consent); see also United States v. Impink, 728 F.2d 1228,
In a related context, the Minnesota Supreme Court has held that, when one co-occupant is present on the scene but not asked for his consent, the consent by an absent co-owner is not sufficient authorization to render the warrantless search constitutional. In In the Matter of the Welfare of D.A.G., 484 N.W.2d 787, 790 (Minn.
The present case does not involve a search pursuant to the consent of one absent co-occupant and silence by another co-occupant present at the scene. Nor does it involve the consent of one co-occupant and silence by another co-occupant, both present at the scene.
Surely, in the present case, the assumption of risk cannot be found by virtue of the marital bond between the defendant’s parents. Indeed, when two persons have forged a marital bond, as in this case, they retain their individual constitutional rights. One could argue that they remove any and all boundaries between them—in other words, that spouses surrender all privacy or other individual interests with respect to one another. “Some might [even] argue that this represents the ideal in marriage, and perhaps they are right. But although marriage
Therefore, I would decide the issue left open in Mat-lock and conclude that, under the federal constitution, a consent to search given by one co-occupant is invalid as against the other when both are on the scene and one has refused to consent. In my view, the courts that have sanctioned consent searches even when a co-occupant is present and objecting are unpersuasive because they invoke the third party consent doctrine from Matlock without properly considering a significant
Accordingly, I concur with the plurality that the express denial of consent in this case by the defendant’s mother rendered the search illegal. I similarly concur that “by demonstrating his own legitimate expectation of privacy and challenging the search based on his mother’s refusal to consent, the defendant is not vicariously asserting his mother’s constitutional rights, but, rather, is vindicating his own.” See footnote 4 of the plurality opinion. It is axiomatic that “[u]nder the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 42, 836
Ill
There are, however, further ramifications of the determination that the search was illegal. In this case, the state agrees that the defendant’s seizure was illegal because it was not supported by probable cause. Therefore, the state must demonstrate that the defendant’s second inculpatory statement to the police, a fruit of that illegality, was purged of the taint.
Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. State v. Reynolds, supra, 264 Conn. 42. “Application of the exclusionary rule, however, is not automatic. [E]vidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint . . . .” (Internal quotation marks omit
In the present case, because the clothing seized from the defendant’s family’s home should have been suppressed, it cannot serve as a significant intervening circumstance to cut off any causal connection between the seizure and the confession. In other words, the seizure of the clothing does not provide the probable cause needed to support the defendant’s initial illegal seizure. Because the defendant’s statement was the fruit of that illegality, and because the state could not demonstrate that the illegal seizure of the defendant’s person and his resulting statements were sufficiently attenuated so as to render his second statement admissible, its suppression was required. State v. Northrop, supra,
“The fourth amendment right to be free from unreasonable searches and seizures is made applicable to the states by incorporation through the due process clause of the fourteenth amendment. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).” State v. Mann, 271 Conn. 300, 302 n.1, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125 S. Ct. 1711, 161 L. Ed. 2d 527 (2005).
The state also claims that the defendant’s second statement in which he confessed to the police “was sufficiently attenuated to purge any taint flowing from the illegal seizure . . . [because] the defendant received Miranda warnings and waived his constitutional rights in writing before he agreed to speak to the detectives about the murder.” Reliance on this factor per se is insufficient. Dunaway v. New York, 442 U.S. 200, 216-19, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); State v. Luurtsema, 262 Conn. 179, 191-97, 811 A.2d 223 (2002).
Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
“It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . [Therefore] [w]e have frequently relied upon decisions of the United States Supreme Court interpreting the fourth amendment, as well as other amendments to the United States constitution, to define the contours of the protections provided in the various sections of the declaration of rights contained in our state constitution. We have also, however, determined in some instances that the protections afforded to the citizens of this state by our own constitution go beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court.” (Citations omitted; internal quotation marks omitted.) State v. Rizzo, 266 Conn. 171, 206, 833 A.2d 363 (2003).
I agree with the plurality that the defendant in the present case did an extensive analysis of the Geisler factors in briefing his state constitutional claim. The defendant did not concede, however, that he could not prevail under the federal constitution, but, rather, sought to assert claims under
Although two prongs of Geisler require a comparison of the treatment of the issue under the federal constitution and oar sister states’ constitutions to determine whether we should recognize an independent right under our constitution, none of the state court cases cited by the plurality analyzes the issue under the state constitution; rather, they treat the federal and state constitutions as providing coextensive rights or they rely solely on the federal constitution, thus providing none of the rationale for recognizing an independent right under our constitution. In the present case, because the cases upon which the plurality relies do not conduct an independent state constitutional analysis, I fail to see a persuasive justification for deviating from our normal course and deciding the issue under the state constitution alone.
To the extent, however, that the dissent claims that the state never had an opportunity to address the issue of the consent of the defendant’s mother, I disagree with that assertion. Because the defendant was contesting the validity of his father’s consent, the state had every incentive to prove under its theory of consent, if it could, that the defendant’s mother had acquiesced to the search and, thus, that her refusal to sign the consent form had no import.
The reasons often given to support searches conducted pursuant to a third party’s consent when one co-occupant is absent or unavailable and the third party is present are that: (1) the third party is waiving his own rights and not those of the co-occupant; and (2) the co-occupant has assumed the risk that the third person will waive his constitutional rights. See United States v. Matlock, supra, 415 U.S. 171 n.7; J. Wefing & J. Miles, “Consent Searches and the Fourth Amendment: Voluntariness and Third Party Problems,” 5 Seton Hall L. Rev. 211, 279 (1974).
The following cases exemplify the majority position that consent by only one joint occupant is necessary, even when another co-occupant objects to the search. See United States v. Morning, 64 F.3d 531, 536 (9th Cir. 1995) (upholding consent by co-occupant, despite refusal to consent by defendant), cert. denied, 516 U.S. 1152, 116 S. Ct. 1030, 134 L. Ed. 2d 108 (1996); Lenz v. Winburn, 51 F.3d 1540, 1548 (11th Cir. 1995) (“Matlock’s third-party consent rule applies even when a present subject of the search objects”); United States v. Donlin, 982 F.2d 31, 33 (1st Cir. 1992) (“[t]hird party consent remains valid even when the defendant specifically objects to it”); United States v. Hendrix, 595 F.2d 883, 884-85 (D.C. Cir. 1979) (wife’s consent prevailed over objection of husband who was arrested when he came out of apartment); People v. Sanders, 904 P.2d 1311, 1313 (Colo. 1995) (“[t]he valid consent of a person with ‘common authority’ will justify a warrantless search of a residence despite the physical presence of a nonconsenting co-occupant”); People v. Cosme, 48 N.Y.2d 286, 288-92, 397 N.E.2d 1319, 422 N.Y.S.2d 652 (1979) (presence of protesting occupant at scene does not invalidate co-occupant’s consent); Laramie v. Hysong, 808 P.2d 199, 204 (Wyo. 1991) (“we do not perceive a constitutional significance to the refusal to consent of a co-owner or occupant who is present”); see also United States v. Garcia, 57 M.J. 716, 719-20 (N.M. Crim. App. 2002) (“the majority of appellate cases . . . tend to indicate an accused’s presence and explicit refusal to consent is ‘constitutionally insignificant,’ so long as the consenting cotenant has equal access or control over the premises to be searched”), rev’d on other grounds and remanded, 59 M.J. 447 (A.F. Crim. App. 2004).
The following cases are ones in which consent has arisen in the context of criminal activity by the nonconsenting co-occupant: United States v. Donlin, 982 F.2d 31, 32-33 (1st Cir. 1992); United States v. Hendrix, 595 F.2d 883, 884-85 (D.C. Cir. 1979); People v. Sanders, 904 P.2d 1311, 1312-13 (Colo. 1995); People v. Cosme, 48 N.Y.2d 286, 288-89, 397 N.E.2d 1319, 422 N.Y.S.2d 652 (1979).
Therefore, the present case does not require that we decide whether, when one co-occupant has consented, the police actively must seek to obtain the consent of all occupants present on the premises. Cf. State v. Walker, supra, 136 Wash. 2d 684-85 (rejecting fourth amendment claim when police did not seek consent of present co-occupant).
As one commentator has noted, the point at which the difficult choice between consent and objection must be made is only where the occupants have equal use and control of the premises and where both are present. “When two or more persons have equal use of a place in which both are present, the consent of one does not normally eliminate the need for the consent of the other(s) before a search is made; ordinarily, persons with equal ‘rights’ in a place would accommodate each other by not admitting persons over another’s objection while he was present.” L. Weinreb, “Generalities of the Fourth Amendment,” 42 U. Chi. L. Rev. 47, 63 (1974-1975).
The state has argued not only that the evidence seized during the search of the family’s home was properly admitted, but it also has argued that the seized clothing provided probable cause for the defendant’s arrest, which in turn purged the taint of his unlawful seizure, thereby allowing the trial court properly to admit his confession into evidence.
Dissenting Opinion
with whom ZARELLA, J., joins, dissenting. The plurality today reverses the murder conviction of the defendant, Nicholas A. Brunetti, on the basis of an egregious misapplication of the first prong of State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989),
I
Because the plurality’s reversal of the defendant’s murder conviction hinges on the resolution of the defendant’s unpreserved constitutional claim, I address that issue first. Contrary to the conclusion of the plurality, the record is patently inadequate for appellate review of the merits of that claim.
The following additional factual and procedural background is necessary to a complete understanding of why the plurality’s conclusion regarding the adequacy of the record is so fundamentally flawed. The defendant filed motions to suppress certain bloody clothing belonging to him that the police had discovered during their search of the home in which he resided, as well as the confession that the defendant had given to the police, after his arrest, detailing his vicious and lethal attack upon the victim.
At the suppression hearing, defense counsel adduced testimony from several witnesses,
The defendant’s mother also testified briefly at the suppression hearing. In response to defense counsel’s question regarding whether she signed the consent to
The next day, immediately before trial commenced, the court issued a ruling from the bench on the defendant’s motions to suppress. After finding that the defendant was in police custody when he was questioned by the investigating officers, the court addressed the defendant’s claim that the search of his home was illegal. The court rejected the defendant’s claim, concluding that the defendant’s father’s consent to search was knowing and voluntary and, therefore, constitutionally valid. During its brief explanation of its ruling on that issue, the court referred to State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984), a case upon which the defendant had relied and in which we had explained that the mere acquiescence to a claim of lawful authority by the police is not enough to establish valid consent.
The case then proceeded to trial. At the conclusion of the trial, the jury found the defendant guilty of murder,
During the pendency of his appeal, the defendant filed a motion for articulation with the trial court in which he informed the court that, on appeal, he intended to challenge the propriety of the court’s rulings on his suppression motions. In his motion for articulation, the defendant, who then was represented by appellate counsel in lieu of trial counsel, requested that the court “articulate the factual bases of its decision with respect to” five specific questions, including the following: “Did the defendant’s mother . . . decline to give her consent for a search of the house?” “Did the trial court credit the testimony of the defendant’s father . . . with regard to the circumstances surrounding his signing of the consent to search form?”
The defendant then filed with this court a motion for review of the trial court’s denial of his motion for articulation. For the first time in that motion, the defendant explained that, “[o]n appeal, [appellate] counsel will seek to raise the claim that when two persons with equal authority to consent to a search of a residence, are both present when the police seek consent, the ‘consent’ given by one party should not prevail over the ‘refusal’ to consent by the other party.” (Emphasis in original.) In support of his motion, the defendant candidly conceded not only that the evidence he presented regarding his mother’s refusal to consent was “never rebutted or contradicted” by the state, but also that the state’s failure to challenge this evidence is insufficient to demonstrate that those facts were admitted or otherwise undisputed by the state.
The state opposed the defendant’s motion for review. The state argued that, “although the defendant now explains more precisely the purpose of his claimed need for an articulation as to the mother’s willingness to consent ... he is making improper use of a motion for articulation to obtain an answer to a factual question which simply cannot be answered on the basis of the testimony presented below. It would, in fact, be clear error for the trial court to find that there was sufficient
B
With this background in mind, I turn to the applicable legal principles. In State v. Golding, supra, 213 Conn. 239-40, this court set forth four conditions that a defen
Before applying that first Golding requirement to the facts of this case, it bears noting that Golding is a narrow exception to the general rule that an appellate court will not entertain a claim that has not been raised in the trial court. The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court or the opposing party to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party. E.g., State v. Sandoval, 263 Conn. 524, 556, 821 A.2d 247 (2003). Nevertheless, because constitutional claims implicate fundamental rights, it also would be unfair automatically and categorically to bar a defendant from raising a meritorious constitutional claim that warrants a new trial solely because the defendant failed to identify the violation below. Golding strikes an appropriate balance between these competing interests: the defendant may
C
Before I explain why the record is inadequate for our review of the defendant’s unpreserved claim, it is useful first to summarize why the plurality concludes otherwise. The plurality’s conclusion is predicated on its determination that the record demonstrates that the defendant’s mother affirmatively refused to consent to the search. This conclusion is based solely on: (1) the testimony of the defendant’s father that his wife declined to sign the consent to search form; (2) the testimony of the defendant’s mother that she did not sign the form; and (3) the statement made by the trial
D
It is undisputed that the only evidence adduced at the suppression hearing regarding the position that the defendant’s mother had taken with respect to the search
The plurality, however, equates the mother’s refusal to sign the consent form with her refusal to consent to the search. This inferential leap is patently unreasonable because it is axiomatic that refusing to sign a consent to search form is not tantamount to refusing to consent to the search; rather, it is simply one of several relevant factors that a court considers in determining the validity of a consent to search. See, e.g., United States v. Lattimore, 87 F.3d 647, 650-51 (4th Cir. 1996). Because the refusal to sign a consent to search form is one of several factors to be considered in determining the validity of consent, such refusal does not vitiate consent otherwise found to be valid in light of all of the circumstances. See, e.g., United States v. Price, 54 F.3d 342, 346-47 (7th Cir. 1995); United States v. Thompson, 876 F.2d 1381, 1384 (8th Cir.), cert. denied, 493 U.S. 868, 110 S. Ct. 192, 107 L. Ed. 2d 147 (1989);
The issue of the defendant’s mother’s consent, moreover, was not before the court, because, as I previously explained, only the consent of the defendant’s father was the subject of the defendant’s motion to suppress the bloody clothing. The facts relevant to the issue of the defendant’s mother’s consent, therefore, never were adduced in the trial court. Furthermore, as I also previously explained, because the defendant’s motion did not implicate the mother’s consent or lack thereof, the state was not on notice that it was required to establish, on the basis of the totality of the circumstances, that the defendant’s mother had consented to or acquiesced in the search.
The plurality makes the startling assertion that “[t]he adequacy of the record cannot turn, without more, on the mere choice of words used by witnesses or the trial court.” In other words, according to the plurality, insofar as the suppression hearing witnesses are concerned, we are not bound by their “mere choice of words” in evaluating the adequacy of the record. On the contrary, it is precisely the words of the witnesses that comprise the record to be evaluated. Moreover, other than the testimony of the suppression hearing witnesses, there is absolutely nothing in the record that bears upon the issue of the defendant’s mother’s consent to search. The plurality’s unprecedented and utterly unsupportable contention that the record cannot “turn ... on the mere choice of words used by witnesses” reflects the flaw in the plurality’s analysis, namely, the plurality’s refusal to acknowledge the fundamental distinction between refusing to sign a consent to search form and refusing to consent.
Finally, in support of its conclusion regarding the adequacy of the record, the plurality relies on the trial court’s statement that, “[i]t is clear that . . . one of
For a myriad of reasons, the plurality utterly fails in its attempt to elevate the trial court’s statement into a finding, let alone one entitled to deference on appeal. First, it bears emphasizing that the trial court issued its brief ruling denying the defendant’s motion to suppress the bloody clothing from the bench, immediately prior to the commencement of trial, and, further, that the only claim raised in that motion was the purported invalidity of the defendant’s father’s consent to search. Consequently, in fairness to the trial court, it is highly likely that the court’s passing and fleeting observation that the defendant’s mother had “declined to consent to [the] search” was intended as nothing more than a shorthand reference to the undisputed fact that the state had not established her consent. To conclude otherwise would be to presume that the trial court had reason to be careful about how it characterized the role of the defendant’s mother in the search; the court had no such reason because no issue relating to her involvement in the search was ever before the court.
Second, as the state notes, the court’s statement goes well beyond the record: the only evidence regarding the mother’s consent or lack thereof was her testimony and the testimony of her husband that she declined to sign the consent to search form. There was absolutely no other evidence in the record from which the trial court could have made a determination, one way or the
In light of the trial court’s statement in that broader context, it is preposterous to attribute significance to that statement for the reason given by the plurality, namely, because the trial court “observed firsthand the demeanor of the defendant’s parents when they testified and was best situated to evaluate the overall tenor of their testimony.” As I have explained, that testimony consisted of one sentence by the defendant’s father that his wife had declined to sign the consent form and one sentence by the defendant’s mother confirming that she had declined to sign the consent form. With respect to the mother’s failure to sign the consent form, what more could be gleaned—even by the most observant and acute fact finder—from the “demeanor” of those witnesses or the “overall tenor” of their testimony? Contrary to the bald assertion of the plurality: absolutely nothing.
Indeed, in his motion for review of the trial court’s denial of his motion for articulation, the defendant expressly acknowledged that, as this court has observed, “[f]acts are not admitted or undisputed merely because they are not contradicted.” (Internal quotation marks omitted.) State v. Watson, 165 Conn. 577, 589-90 n.1, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1947, 40 L. Ed. 2d 311 (1974); see also State v. Madera, 210 Conn. 22, 38, 554 A.2d 263 (1989) (trial court “not bound to accept testimony at face value merely because it might have been unrebutted”). This admonition is particularly compelling in the present circumstances because the state had absolutely no opportunity or reason to rebut, to contradict or even to explain any evidence that either was or might have been adduced concerning the role of the defendant’s mother in regard to the consent to search.
The plurality makes several additional points in response to my assertion that its Golding analysis is
A second point made by the plurality relates to my conclusion that it is unfair to the state to reach the merits of the defendant’s unpreserved constitutional claim. In particular, the plurality asserts that my “view fails to account for the unique nature of Golding review” in that, “[b]ecause a Golding claim by definition is a claim that has not been raised explicitly at trial, the unavailability of explicit notice to the state is inherent in the exercise of Golding review,” and, therefore, “[t]he state . . . must be mindful at trial of the potential that the defendant will raise unpreserved constitutional claims on appeal.” This assertion reveals the plurality’s fundamental misunderstanding of Golding. It is true, of course, that Golding review invariably involves a claim that was not raised in the trial court and, therefore, neither the state nor the court then will have had notice of the claim. It is equally true that this case shares that similarity. What the plurality fails to recognize, however, is the bedrock principle underlying Golding, namely, that the record must be adequate before an appellate court will review an unpreserved constitu
Finally, the plurality expressly notes that “three members of this court” have found that the record is not “unclear’ or ambiguous . . . .” That is the only argument raised by the plurality that is supported by the record. More importantly, however, a judicial opinion must be judged not on the number of votes that it has garnered but on its reasoning. In my view, the fact that a majority of the members of this panel has agreed that the defendant has satisfied the first prong of Golding merely serves to underscore the point that the majority sometimes is wrong. I submit that that is clearly the case here. I trust that my conclusion in that regard will be evaluated not on the basis that it is, at least among the members of the present panel, a minority view but, rather, on its merit or lack thereof.
F
Although I do not reach the merits of the defendant’s constitutional claim, I am compelled to address one aspect of the plurality’s analysis of that issue, namely, its response to the state’s contention that the defendant cannot piggyback on his mother’s purported refusal to consent, but, rather, that he is bound by his father’s valid consent to search. The plurality purports to answer that contention by asserting, contrary to the claim of the state, that the defendant has “standing to invoke his mother’s privacy rights.” Footnote 4 of the plurality opinion. The plurality then proceeds to justify this conclusion by explaining that the defendant has a reason
It is readily apparent why the plurality’s treatment of this question misses the mark. The defendant’s legitimate expectation of privacy in the home in which he resides is the reason why he has standing to challenge the validity of the search of that home. Whether, however, that search violated the defendant’s constitutional rights—that is, whether the search was constitutionally invalid as against him—is an altogether separate question. It is true, under the rule that the plurality adopts,
The plurality’s failure to address this question meaningfully is a critical one. Only a few states have adopted the constitutional principle that this court adopts today,
G
In sum, the plurality’s conclusion regarding the adequacy of the record is fatally flawed because it is predicated on a similarly flawed premise, namely, that the refusal to sign a consent to search form is the same as the refusal to consent to the search itself. Because the two cannot be equated, and because all we do know is that the defendant’s mother refused to sign the form,
II
The defendant claims that the trial court improperly denied his motion to suppress his confession and his motion to suppress the clothing seized from his home.
A
The defendant first contends that the trial court improperly failed to suppress his confession and the clothing that the police had seized from his home.
The following additional facts, which were adduced at the hearing on the defendant’s motions to suppress, are necessary to a resolution of these claims. On the morning of Saturday, June 24, 2000, the West Haven police received a report that a dead body had been discovered behind the Washington Avenue Magnet School. Joseph Biondi, a detective with the West Haven police department, and John Brunetti, also a detective with that department and the brother of the defendant’s father, found the victim’s body lying facedown in a wooded area behind the school. Later that day, the
On the evening of June 24, Biondi and Buglione went to the residence at 208 Center Street in West Haven where the defendant lived with his parents. The defendant’s parents were outside when the police arrived. The police informed them that they were investigating a homicide, that the defendant had been identified as a possible suspect in that homicide and that the detectives wanted to know of the defendant’s whereabouts on the preceding evening. The defendant’s father was cooperative and went inside to get the defendant, who emerged from the house with his father about fifteen minutes later. Biondi told the defendant why he and Buglione were there and asked whether the defendant would be willing to accompany them to the police station to answer some questions. According to Biondi, he told the defendant that he did not have to go with them, but the defendant agreed to do so, and the detectives then transported the defendant to the station. According to the defendant, however, he did not believe that he was free to refuse to go to the station with the detectives.
Upon arriving at the police station, Biondi and Buglione took the defendant to a small office in the detective
Buglione asked the defendant where he had been the previous evening. The defendant provided an alibi for the evening, explaining that he had been at a party with a friend. Buglione reduced the defendant’s statement to writing but doubted the veracity of the statement in light of the defendant’s overall demeanor and his inability to remember certain details regarding the evening’s events. The defendant eventually signed the statement.
While the defendant was still at the police station, Detective Mark Testoni of the Connecticut state police approached the defendant’s parents, who were at the station waiting for the defendant, and presented them with a consent to search form for their home. Testoni explained the form, told them that they had a right not to sign it and asked them if they nevertheless would be willing to do so. Detective Brunetti, the defendant’s father’s brother, was sitting with the defendant’s parents when Testoni approached them and requested their consent to search their home. The defendant’s father asked Detective Brunetti what could happen if he declined to sign the form, and Detective Brunetti stated that “they could obtain a search warrant and possibly keep you from going back into your home until the search warrant ... is obtained.” In addition, Detective Brunetti told the defendant’s father that he would be “better off complying. You know, do the right thing,
Upon learning that Testoni and Sweetman had found bloody clothing in the laundry area of the defendant’s home, Buglione informed the defendant of the discovery and told the defendant that he, Buglione, had a “problem” with the veracity of the statement that the defendant had provided. The defendant started to cry and asked for a Bible. Buglione left the room to find a Bible but, unable to locate one, soon returned to the interview room. Upon his return, Buglione read the defendant his Miranda rights from a state police waiver form. The defendant initialed each warning and signed the waiver form indicating that he had been advised of his constitutional rights and that he wished to waive them and to speak to the police. The defendant then admitted that he had killed the victim, explaining in detail why and how he had done so. See footnote 4 of this opinion. Buglione transcribed the defendant’s statement, which the defendant signed. The defendant then formally was placed under arrest and charged with the victim’s murder.
On the basis of the foregoing evidence, the trial court concluded that the detectives took the defendant into custody when they transported him to the police station and that he remained in their custody at all relevant
I turn now to the merits of the defendant’s claims that the trial court improperly denied his motions to suppress his confession and the clothing seized from his home. In view of the fact that both of those claims hinge, more or less, on the defendant’s contention that the search of his home was unlawful due to the alleged invalidity of his father’s consent to search, I address that issue first.
“Under both the fourth amendment to the federal constitution and article first, § 7, of the state constitution, a warrantless search of a home is presumptively unreasonable. E.g., Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Gant, 231 Conn. 43, 63 and n.15, 646 A.2d 835 (1994),
For purposes of this claim only, the defendant does not dispute that his father had authority to consent to the search of his home. The defendant also acknowledges that the record establishes that the police explained the consent to search form to the defendant’s father, that he was advised that he had the right not to sign it, that he understood that right, and that no one forced him to sign it. The defendant claims, rather, that his father’s consent was not voluntary “in the constitutional sense” because his father was “led to believe
It is true that, if the police had instructed the defendant’s father that they would obtain a search warrant if the defendant refused to give consent, then such consent would have been involuntary, for constitutional purposes, because “the intimation that a warrant will automatically issue is as inherently coercive as the announcement of an invalid warrant.” Dotson v. Warden, 175 Conn. 614, 621, 402 A.2d 790 (1978). In the present case, however, Detective Brunetti informed the defendant’s father not that the police would obtain a warrant but, rather, that they “could,” or might, obtain a warrant. This information was neither misleading nor inherently coercive,
The defendant next contends that the trial court improperly denied his motion to suppress his confession. The defendant’s claim is predicated on the assertion that his confession was the product both of his
The trial court concluded, and for purposes of this appeal the state does not dispute, that the defendant was in police custody when he arrived at the police station. Because the police lacked probable cause to arrest the defendant at that time, the state acknowledges that “the trial court implicitly found that the defendant’s initial confinement was illegal.” For purposes of this appeal, the state also does not challenge that conclusion. Rather, the state contends that the nexus between the defendant’s unlawful arrest and the confession that the police obtained from him while he was in their custody was sufficiently attenuated to warrant the state’s use of the confession. I agree with the state.”
“As a general principle, the exclusionary rule bars the government from introducing at trial evidence obtained in violation of the fourth amendment to the United States constitution. See Wong Sun v. United
In the present case, the defendant’s confession was sufficiently attenuated from his unlawful arrest to purge any taint that flowed from that arrest. With respect to the threshold consideration of voluntariness, although Buglione confronted the defendant with the discovery of the bloody clothing about one-half hour after the defendant had made his first statement,
In addition, the discovery of the bloody clothing at the defendant’s home was a significant intervening cir
Irrespective of whether the discovery of the bloody clothing gave rise to probable cause, the discovery itself constituted a significant intervening factor that tended to purge the taint of the underlying illegality. See, e.g., People v. White, 117 Ill. 2d 194, 224-25, 512 N.E.2d 677 (1987) (confrontation with untainted evidence may be legitimate intervening circumstance that induces voluntary desire to confess), cert. denied, 485 U.S. 1006, 108 S. Ct. 1469, 99 L. Ed. 2d 698 (1988). Although the defendant had given a statement to the police prior to being confronted with the discovery of the clothing, that statement was exculpatory in nature. When informed of the bloody clothing, however, the defendant confessed to the murder and described it in detail. In such circumstances, it is apparent that the incriminating statement was induced primarily by the lawful discovery of the damaging, untainted evidence and not by the initial, unlawful detention. See, e.g., State v. Stevens, 574 So. 2d 197, 204 (Fla. App. 1991); Thorson v. State, 653 So.
The final consideration, namely, the purpose and flagrancy of the official misconduct, also militates decisively in favor of a finding of attenuation. Although the conduct of the detectives was purposeful in the sense that they brought the defendant to the police station to question him, their conduct was neither flagrantly in violation of the defendant’s rights nor otherwise unduly intimidating or coercive. First, the record indicates that the detectives themselves did not believe that the defendant was under arrest when he accompanied them to the police station. Although the trial court concluded that the defendant reasonably did not believe that he was free to leave the station once he arrived there, the record also would have supported a contrary conclusion regarding the objective reasonableness of the defendant’s belief that he was in custody from the time that he accompanied the police to the station. Furthermore, the defendant’s father encouraged the defendant to speak with the police, and the defendant’s mother and father followed the defendant to the station and remained there while the police interviewed him. In addition, the suppression hearing testimony is devoid of any indication that the detectives threatened or otherwise attempted to intimidate the defendant, by show of force, or in any other way.
Upon consideration of all of the relevant factors, I would conclude that the defendant’s confession was sufficiently attenuated from the initial illegality such that the confession reasonably cannot be characterized
B
The defendant next contends that it was improper for the state to have adduced Detective Buglione’s testimony that the defendant asked for a Bible after being told of the discovery of the bloody clothing at his home.
“Two conditions . . . give rise to the requirement of advice of rights under Miranda: (1) the suspect must be in the custody of law enforcement officials; and (2) the suspect must be subjected to interrogation.” State v. Medina, supra, 228 Conn. 289. As I explained previously, the state does not challenge on appeal the trial court’s finding that the defendant was in custody when he asked for a Bible. With respect to the second requirement, “ ‘[t]he term “interrogation” under Miranda is not limited to questioning explicitly designed to elicit an incriminating response but extends 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 a suspect. The police, however, cannot be held accountable for the unforeseeable results of their words or actions.’ ” Id., 290. Even if we assume, arguendo, that Buglione’s statement informing the defendant of the discovery of the bloody clothing at his home constituted interrogation within the meaning of the second Miranda requirement, the state’s use of the defendant’s remark was harmless beyond a reasonable doubt. “The improper admission of a confession is harmless error [when] it can be said beyond a reasonable doubt that the confession did not contribute to the conviction.” State v. Hafford, 252 Conn. 274, 297, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000). In the present case, the evidence against the defendant was overwhelming: the defendant was seen in close proximity to the crime scene at the time of the victim’s murder, the victim’s blood was found on the defendant’s clothing, the defendant provided a detailed confession explaining how and why he had murdered the victim, a part of the defendant’s necklace was found in the victim’s hair and the defendant sought to cover up the crime by lying to his father
C
The defendant also claims that the trial court improperly denied his request, which he made near the close of the evidentiary portion of the trial, for a one day continuance of the trial. This claim also lacks merit.
The following additional facts are relevant to this claim. At trial, the defendant testified that he did not murder the victim. He explained, rather, that, at approximately 1 a.m. on June 24, 2000, he went to the area of the Washington Avenue Magnet School to meet Jerrell Credle. When the defendant arrived, Credle was there, along with Michael Banores, Jose Rivera and Michael Scott. According to the defendant, Credle and the three other men took him to a wooded area behind the school and showed him the victim’s body. At that time, the defendant removed his sweatpants and handed them to Credle, who dipped the pants in the victim’s blood. The men then returned to the immediate area of the school and smoked marijuana.
On March 7, 2002, prior to the conclusion of the defendant’s trial testimony, defense counsel made an offer of proof outside the presence of the jury. In connection with that offer of proof, the defendant testified that, at the time Credle and the others brought the defendant to the victim’s body, Credle bragged about killing the victim and explained how he had done so. The defendant also testified that Credle had “recited some kind of blessing or prayer in the name of the god ‘Mambay,’ saying that the blood of the sacrifice is acceptable . . . .” The trial court sustained the state’s objection to the proffered testimony on hearsay grounds, concluding that Credle’s statements did not
Trial resumed the following day, March 8, 2002, a Friday. Defense counsel did not provide the court with any law concerning the admissibility of the proffered hearsay testimony. Instead, the defendant requested a continuance until Monday, March 11, 2002, so that defense counsel could continue his efforts to locate Credle.
“It is well settled that [t]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. . . . Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives. . . . Therefore, on appeal, we . . . must determine whether the trial court’s decision denying the request for a continuance was arbitrary or unreasonabl[e].” (Citations omitted; internal quotation marks omitted.) State v. Delgado, 261 Conn. 708, 711, 805 A.2d 705 (2002).
“There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to [constitute a constitutional violation]. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. . . . We have identified several factors that a trial court may consider when exercising its discretion in granting or denying a motion for continuance. . . . These factors include the likely length of the delay . . . the impact of delay on the litigants, witnesses, opposing counsel and the court . . . the perceived legitimacy of the reasons proffered in support of the request . . . [and] the likelihood that the denial would substantially impair the defendant’s ability to
Under the circumstances, and with due regard for the broad leeway possessed by trial courts to grant or to deny continuances, it cannot be said that the court abused its discretion in denying the defendant’s request for a continuance. Although it is true that the length of the continuance that the defendant requested was relatively short and that the trial apparently was on or ahead of schedule, the court nevertheless was under no obligation to grant the request. As the trial court noted, defense counsel had known for a long time that Credle was likely to be a defense witness, yet the record is devoid of any indication that he took any action to locate Credle until very near the end of the trial.
D
The defendant finally claims that the trial court improperly permitted the state to present evidence of
As I previously explained, the defendant testified in his own defense and denied that he had anything to do with the victim’s murder. With respect to the victim’s blood that was found on his clothing, the defendant explained, for the first time at trial, that Credle had led him to the victim’s body. At that time, the defendant removed his sweatpants, which Credle dipped in the victim’s blood and then returned to the defendant, who put them back on. According to the defendant, the victim’s blood had found its way onto the defendant’s tank top because the defendant previously had removed the tank top and placed it in a pocket of his sweatpants. The defendant further testified that the tank top was in the pocket of his sweatpants when Credle dipped them in the victim’s blood.
At trial, the senior assistant state’s attorney (state’s attorney) asked the defendant, “[0]ther than your lawyer, could you please tell . . . the jury when is the first time that you told someone in authority, like a judge, a prosecutor or a police officer, this story about your sweatpants being dipped in blood?” Defense counsel objected to the state’s attorney’s question, and the trial court overruled the objection. After the state’s attorney repeated the question, the defendant responded that he had provided that version of the events for the first time “in this courtroom.” The state’s attorney then asked the defendant, “Now . . . you say the first time that you said this was in this courtroom. When in this courtroom was the first time this was said?” Defense counsel again objected, claiming that the question violated the defendant’s right to remain silent after having been advised of that right in accordance with Miranda. The trial court again overruled defense counsel’s objection. The defendant then answered, “It was yesterday.”
Like most other constitutional violations, “Doyle violations are . . . subject to harmless error analysis.” (Internal quotation marks omitted.) Id., 717. “A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant’s silence following a Miranda warning. Under such circumstances, the state’s use of a defendant’s [post-arrest] silence does not constitute reversible error. . . . The [error] has similarly been [found to be harmless] where a prosecutor does not focus upon or highlight the defendant’s silence in his cross-examination and closing remarks and where the prosecutor’s comments do not strike at the jugular of the defendant’s story. . . . The cases [in which] the error has been found to be prejudicial disclose repetitive references to the defendant’s silence, reemphasis of the fact on closing argument, and extensive, strongly-worded argument suggesting a connection between the defendant’s silence and his guilt.” (Internal quotation marks omitted.) Id., 718.
The state contends that Doyle is inapplicable because the defendant did not elect to exercise his right to remain silent after being advised of his Miranda rights but, rather, provided the police with a detailed confession. In State v. Silano, 204 Conn. 769, 778-84, 529 A.2d 1283 (1987), however, this court considered and rejected an argument by the state that Doyle is inapplicable in circumstances that were identical in all material respects to those of the present case. We explained: “The state may impeach a defendant by cross-examina
As in Silano, however, the Doyle violation in the present case was harmless. The improper questioning was relatively brief, and the state’s attorney’s closing argument contained no reference to the fact that the defendant had not contacted the authorities to correct
Ill
To maintain public confidence in our system of justice, judicial opinions must be true to the legal principles that they purport to apply, such that, at a minimum, those opinions must represent a reasoned attempt to decide the issues presented in accordance with those applicable principles. Regrettably, the plurality and concurring justice fail to meet this standard both with respect to their analyses and resolution of the Golding issue raised by this case, and with respect to their analyses and resolution of the issue of whether the defendant is entitled to piggyback on his mother’s purported refusal to consent.
Nevertheless, there may be some who hail today’s decision as a courageous vindication of an important constitutional right. Nothing could be farther from the truth. Even if there is merit to the constitutional principle recognized today by the plurality and concurring justice, they have achieved that end at the expense of fair and objective decision making. The result is a seri
In Golding, we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.
My comments in this dissent also are applicable to the concurring opinion. When necessary, however, I address the concurring opinion separately.
I note, preliminarily, that the plurality’s explication of the state constitutional principle that it adopts today—a principle that the defendant himself acknowledges is representative of the distinct minority view—is not clear because the plurality uses different, standards in articulating that principle. For example, the plurality states that the “Connecticut constitution requires that the police . . . obtain the consent of all joint occupants who are present when consent is sought in order for a search by consent to be valid.” The plurality also states “that the Geisler factors, viewed together, favor the rule requiring the consent of both co-occupants when both are present to consent to a search.” Yet, the plurality states that its “conclusion . . . only governs cases in which identically situated joint occupants, who are both
The defendant inflicted several potentially fatal injuries to the victim, including blunt trauma to the head resulting in bruising to the brain, blunt injury manual strangulation to the neck resulting in fracturing of the hyoid bone, and blunt trauma to the chest and abdomen resulting in fractured ribs and a laceration of the spleen. In his statement to the police, the defendant revealed how he had inflicted these injuries on the victim. The defendant explained that, on the night of the murder, he was walking near Campbell and Main Streets in West Haven when the victim, a white female unknown to the defendant and subsequently identified as Doris Crain, approached the defendant and asked him if he had any marijuana. The
When they finished the marijuana cigarette, the defendant and the victim began kissing and eventually engaged in sexual intercourse. At some point, the victim told the defendant that she wanted to stop because he was hurting her. The defendant, however, continued to engage in sexual intercourse with her, subsequently ejaculating inside her. The victim was very upset with the defendant and told him that she intended to call the police.
The defendant’s statement to the police contains the following account of what transpired next. “At this point, I got scared because I knew that I was on probation all ready [sic] and did not want to go back to jail. As the girl stood up, I grabbed her from behind and used both hands to put her in a choke hold. One arm was wrapped around her neck and my other arm/ hand was pushing on her neck. My intention at this point was to kill her so she could not tell anybody what happened. I continued to choke the girl out by placing her to 1he ground and wrapped [sic] my legs around her. As we went to the ground I went down first and she fell on top of me. At this point, the girl was gurgling and was trying to catch her breath.
“I thought the pressure I was applying was enough to kill her but she was still alive. I then threw her off me and she was laying [sic] on her back, and she was still making a gurgling sound.
“I then took my left hand and put my thumb into her throat area and was digging into her throat. At the same time, I punched her in the jaw with my right hand. I also used a ‘hammer’ fist punch and struck the girl in the skull area of the head. I don't know where she was bleeding from but there was a lot of blood. After all this punching and choking I believed that she was still alive. I also kicked the girl with the heel of my boot in the stomach. The girl somehow reacted to this and flipped on her stomach.
“I then proceeded to drag the girl by her hair for a short distance. The girl’s hair started to pull out so I stopped dragging her in this manner. I then grabbed the girl by her feet and dragged her into the high grass. When I got into the high grass the girl continued to grasp [sic] for air. I left the girl in the woods and saw an Olde English 40 [ounce beer] bottle (empty) that I had drank [sic] earlier in the day. I picked up the 40 [ounce] bottle and returned to the girl. I began to hit the girl with the 40 [ounce] bottle at least six times in the head. As I was striking the girl blood was flying in the air and getting all over my clothes. After hitting the girl all these times, she continued to gurgle, but I figured she had to be dead.
'1 then threw the 40 [ounce] bottle to the right side of the girl’s body. I returned to where the girl’s pants and shoes were and threw them in the same vicinity as the beer bottle.
“I then proceeded to leave the school by the picnic table and play area. When I reached the area, I saw several people rolling a ‘blunt’ (marijuana). I recognized these people as: Jerrell, Big Mike, and Fat Cat. I only know these people by their street names. As I walked by them Jerrell said ‘What
Shortly after giving this statement, the defendant provided an addendum to it. The addendum provides in relevant part: “[W]hen I was choking the girl my silver scorpion [pendant] got caught in the girl’s hair. I did not realize that I lost the pendant until this morning. I usually wear the pendant on my silver link necklace.”
The defendant maintained that his confession was the product of the allegedly unlawful search of his home because he gave the confession after being told of the bloody clothing that the police had discovered during their search of the home. At trial, the state established that at least one such article of clothing, a tank top, contained DNA identical to the DNA of the victim.
As the plurality has explained, the defendant’s mother and father were together at the police station, waiting for the defendant, when the police approached them to seek consent to search the family home.
Although the state bears the burden of establishing the voluntariness of a consent to search; e.g., State v. Cobb, 251 Conn. 285, 315, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); the suppression hearing in the present case commenced with the presentation of evidence by the defendant rather than by the state. Indeed, the state
The other witnesses whom the defendant called to testify at the suppression hearing were Joseph Biondi and James Sweetman, both detectives employed by the West Haven police department, and Anthony Buglione, a detective with the major crime unit of the Connecticut state police. The defendant also testified at the hearing.
Among other things, the defendant’s father indicated that, upon consenting to the search, he and his wife went back to their home to let the police in.
The defendant’s mother did indicate that she may have offered to make coffee for the police officers while they were conducting the search.
In Jones, the defendant, Reginald Jones, was residing with his father and stepmother when he became a suspect in the murder of a teacher at a high school in New Haven. State v. Jones, supra, 193 Conn. 73, 77. The police executed two separate consent searches of the family home, one predicated on the consent of Jones’ father and the other on the consent of his stepmother. Id., 77-78. Jones challenged the voluntariness of each such consent and adduced testimony from his father and stepmother that they had given their consent to search only because the police had led each of them to believe that a warrant inevitably would be issued if they declined to do so. See id., 78. In denying Jones’ motion to suppress certain physical evidence, the trial court rejected that testimony, however, crediting, instead, the contrary testimony of certain police officers. See id., 77, 78-79. We concluded that the trial court reasonably had credited the testimony of the state’s witnesses and, therefore, rejected the defendant’s claim on appeal that the trial court improperly had concluded that the searches were lawful. See id., 80-81.
The following is the court’s ruling on the defendant’s motion to suppress with respect to the issue of whether the consent search was illegal: “Regarding the consent to search, counsel—and I must place on the record that perhaps one reason for the state’s . . . [request for an immediate ruling on the suppression issues] was that the [state] had provided me at least a day or so earlier with the applicable case law in every aspect of the issue regarding voluntariness and custody as deemed appropriate for this issue. And the court—and also defense counsel as well provided the court with the case law. This is a courtroom of law. We are confined and operate in accordance with the law.
“Now in [State v. Jones, supra, 193 Conn. 70], cited by [defense counsel] in support of [the defendant’s] . . . motion to suppress the evidence in regard to the consent offered by the parents such as it was before the court, the court heard the evidence and indeed ordered the transcripts last night, and they were presented to the court this morning. The court distinguishes this case from [Jones}. It is clear to the court that this is not an issue as decided in [Jones], one of acquiescence to a lawful—-to a claim of lawful authority. It is not that. It is clear that at least one of the parties, one of the parents, declined to consent to [the] search.
“This was conducted at the police station. [The defendant’s father’s] brother is an officer. And, as he did, he sought information, information to decide whether or not he should sign the consent [form]. He sought information to make an informed decision. He made it clear for the record that he knew he did not have to sign it. He made that quite clear. There was no coercion. There was no force. There was no mere acquiescence. He invited comment by his brother, sought, his advice, as he should. He’s experienced in this area. And based upon that advice, he consented to [the] search.
“There is no issue of whether or not he had authority to consent to the search of the defendant’s bedroom, and it’s been an issue before [the] court., and that’s been satisfied. So, in regard to the search, the court finds that the consent to search was given knowingly and voluntarily. And the court is mindful of the fact that our courts look for warrants, [encourage] the use of warrants when going to persons’ homes in our country pursuant to our constitution. This is a matter where the consent to search was given freely . . . [and] voluntarily. It was not a product of coercion, [express] or implied. That motion is denied.”
The defendant testified in his own defense at trial. In that testimony, he disavowed the truth of the detailed confession that he had given to the police on the day following the murder, claiming, instead, that his confession was the product of police threats and intimidation. He further maintained
The other three questions for which the defendant sought an articulation were: 1. “At what point in time did the police have probable cause to arrest the defendant?” 2. “Did the police seize or obtain clothing and jewelry from the defendant in the early evening hours of June 24, 2000, shortly after they arrived at the defendant’s house?” 3. “Were the defendant’s parents allowed to talk to the defendant at the police station, while he was being interrogated?”
I note 1 hat the defendant’s motion for articulation contains no suggestion that the defendant was seeking to raise any issue on appeal that he had not raised in the trial court. Nevertheless, the concurring justice states that she is “mindful of the defendant’s efforts to perfect the record on [the] issue [of the validity of consent]—filing a motion for an articulation on .. . this issue and filing a motion for review of the trial court’s denial of that motion—and the state’s opposition to those efforts.” (Emphasis added.) This statement is, at best, misleading. As I explained previously, it is true that the defendant did seek to have the trial court render a further articulation in regard to whether the defendant’s mother had “decline[d] to give her consent for a search of the house.” Contrary to the suggestion of the concurring justice, however, the defendant’s motion for articulation did not indicate that the defendant was raising, or intended to raise, any new “issue” regarding the validity of the consent to search. In any event, even if the defendant had sought to raise a new issue regarding the validity of the consent to search in his motion for articulation, it is axiomatic that a trial court is under no obligation to render an articulation on a claim that had not been raised before it. See Practice Book § 66-5 (articulation appropriate when further facts are necessary for proper presentation, on appeal, of “the issues raised” in trial court); see also Cable v. Bic Corp., 270 Conn. 433, 444-45, 854 A.2d 1057 (2004) (“[p]roper utilization of the motion for articulation
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In concluding that appellate review of such a claim is appropriate, this court has noted the exceptional circumstances that warrant that review. See State v. Golding, supra, 213 Conn. 238-39.
Of course, if the record is inadequate for review, Golding prohibits a reviewing court from remanding to the trial court for the purpose of supplementing the record. Indeed, that is what the first prong of Golding was designed to avoid. State v. Medina, 228 Conn. 281, 301, 636 A.2d 351 (1994); State v. Stanley, 223 Conn. 674, 689-90, 613 A.2d 788 (1992). A contrary rule would promote ceaseless litigation by discouraging parties from raising claims in a timely manner, thereby seriously undermining the efficient administration of justice. I note that, consistent with this well founded rule, neither party in the present case has sought such a remand.
It is equally well established that an accused may be found to have knowingly and voluntarily waived his Miranda rights even though he has elected not to sign a waiver form. See, e.g., North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983). Similarly, an oral statement or confession will not be deemed to be involuntary merely because an accused has declined to reduce it to writing. E.g., State v. Barrett, 205 Conn. 437, 450-51, 534 A.2d 219 (1987).
The concurring justice acknowledges that the validity of a consent to search is determined on the basis of the totality of the circumstances. The concurring justice also indicates that such consent may be established even though the person consenting has declined to sign a consent to search form. Inexplicably, however, the concurring justice then proceeds to equate the defendant’s mother’s refusal to sign the form with her refusal to consent to the search even though (1) there is absolutely nothing in the record regarding the other circumstances that the concurring justice concedes are necessary to the determination of whether the defendant’s mother did consent to the search, and (2) the absence of that factual record is attributable to the defendant, and to the defendant alone, because the state never had any reason or opportunity to present those circumstances in view of the fact that the only claim that the defendant raised in the trial court implicated the consent of the defendant’s father and not the consent of his mother.
Although mere acquiescence to a claim of lawful authority is not sufficient to establish consent; see, e.g., State v. Jones, supra, 193 Conn. 79; to the extent that the constitutional principle adopted by the plurality bars the police from conducting a search only when one of the co-occupants present affirmatively objects to the search; see footnote 3 of this opinion; the state could have prevailed under the plurality’s new constitutional principle merely by showing that the defendant’s mother did not affirmatively object to the search. Thus, for example, under that constitutional principle, the state could have demonstrated that the search was lawful if it had established that the defendant’s mother had acquiesced in her husband’s consent.
In fact, to the extremely limited extent that the record contains any other evidence that may be deemed to bear upon the question of the defendant’s mother’s consent, that evidence, specifically, the fact that the defendant’s father and mother returned home together to let the police in, and the fact that the defendant’s mother may have offered coffee to the police during their search of her home; see footnotes 9 and 10 of this opinion; suggests that she did not oppose the search. This evidence, which was adduced by the parties during the litigation of the defendant’s claim challenging the validity of his father’s consent, merely underscores the obvious and undisputed fact that a person’s refusal to sign a consent to search form is one of several relevant factors to be considered in determining the broader issue of consent.
The concurring justice incorrectly postulates that the defendant’s mother’s lack of consent reasonably may be inferred from her refusal to sign the consent to search form. This conclusion, which fairly can be characterized as the product of a judicial sleight of hand, would be correct if the state had borne the burden of establishing that the defendant’s mother had consented. Indeed, in that case, the trial court would have been required to find that the mother had declined to consent because there is no other evidence in the record with respect to that issue. No such conclusion or inference may be drawn in the circumstances of the present case, however, because the issue of the mother’s consent never was before the court and, therefore, the state never had any reason to establish that the mother had consented or otherwise had not objected to the search, let alone any burden to do so. Indeed, the state satisfied the only burden that the defendant’s claim required it to shoulder, namely, to prove that the defendant’s father’s consent to search was valid. Consequently, as I have explained, we simply do not know what the mother did or said, aside from refusing to sign the form, in regard to granting or withholding her consent to the search. Like the plurality, the concurring justice simply ignores this fact, thereby placing the burden of the inadequate record on the state rather than on the defendant. In doing so, the concurring justice joins the plurality in rendering a decision that is patently in violation of the first prong of Golding.
The concurring justice seeks to remove the trial court’s statement from the realm of dicta by arguing that it was material to the court’s finding regarding the validity of the defendant’s father’s consent to search. Specifically, the concurring justice refers to the juxtaposition of the trial court’s statement that the defendant’s mother had “declined to consent to [the] search” with the court’s reference to State v. Jones, supra, 193 Conn. 70. The concurring justice’s labored effort to inject some significance into the trial court’s statement is entirely unavailing. The trial court adverted to Jones in reference to the defendant’s contention that his father’s consent was invalid because it was based on a claim of lawful authority by the police, the very argument that we had addressed in Jones. Indeed, there is
In a further effort to justify the conclusion that the trial court’s statement is entitled to weight, the concurring justice contends that, “it is evident by comparing the trial court’s discussion of [the defendant’s mother’s] consent or lack thereof with its discussion of [the defendant’s father’s] consent that, in the trial court’s view, the decision to sign or not to sign the consent form was synonymous with a decision whether to consent to the search, absent evidence to the contrary. The trial court found that [the father] voluntarily had consented to the search of his home based solely on his decision to sign the consent form following a discussion with his brother. The trial court did not discuss consent based on conduct or verbal acquiescence. Rather, the court discussed consent only in the context of the signed form.” The concurring justice then asserts that, because the defendant’s mother did not sign the form, the trial court must have viewed that conduct as reflecting her “refusal to consent to the search.” This argument also is baseless. First, it is a mischaracterization to describe the trial court’s comment regarding the mother’s conduct as a “discussion” of that conduct, and the concurring justice cannot transform that passing reference into something comparable to (he trial court’s findings and ruling on the issue of the father’s consent simply by asserting it to be so. Moreover, as I have explained, because the defendant never raised the issue of the mother’s consent in the trial court and the record never was developed regarding that issue, it is patently unreasonable to presume that the trial court nevertheless would have endeavored to make a “finding” with respect to that issue. The concurring justice completely overlooks that fact in contending that the trial court, found that the mother’s refusal to sign the consent form was tantamount to a refusal to consent “absent evidence to the contrary.” There was no such “evidence to the contrary” because, as the trial court well knew, the issue of the mother’s consent was not before the court,. Furthermore, in rejecting the defendant’s motion to suppress, the trial court properly focused on the fact that the defendant’s father had signed the consent form and that he had done so freely and with a full understanding of his rights. See footnote 25 of this opinion. Because the defendant’s father had signed the form, and because the defendant presented no evidence to suggest that his signature did not reflect his informed consent, the court had no reason otherwise to comment extensively on the father’s “conduct or verbal acquiescence.”
The plurality asserts that, “[b]ecause the state could not have foreseen whether it would prevail in establishing the voluntariness of the defendant’s father’s consent, it is clear that [the state] had sufficient opportunity and incentive to address (he issue of the defendant’s mother’s consent at the suppression hearing.” Footnote 6 of the plurality opinion. The plurality’s attempt to rationalize its conclusion in this manner is inexplicable in view
The plurality’s argument fails for a second reason. It may well be that the defendant’s mother neither affirmatively consented to the search nor affirmatively objected to it. For example, she simply may have acquiesced in the defendant’s father’s decision to consent. See footnote 21 of this opinion. In that case, it is likely that (1) the state could not have established a valid consent to search on the basis of the mother’s conduct and (2) the mother’s acquiescence in the father’s consent wouldforeclose a claim by the mother that the search violated her rights even under the new constitutional doctrine espoused by the plurality. In such circumstances, the state would have had no reason to adduce testimony demonstrating the mother’s acquiescence, yet such a showing would have defeated the constitutional claim that the defendant has raised for the first time on appeal. Due to the plurality’s terribly flawed Golding analysis, however, the state is forever barred from making such a showing.
I note, finally, the concurring justice’s suggestion that the state somehow bears responsibility “[t]o the extent that the record is not as complete as this court ideally would like . ...” In support of her assertion, the concurring justice observes that “it was the state’s burden to prove that the police [had] obtained consent to the search” and, further, that she is “mindful of the defendant’s efforts to perfect the record on this issue—filing a motion for an articulation on, inter alia, this issue and filing a motion for review of the trial court’s denial of that motion—and the state’s opposition to those efforts.” This contention is specious, at best, for a multitude of reasons. Before enumerating those reasons, however, I am constrained to comment on the concurring justice’s euphemistic characterization of the record as “not as complete as this court ideally would like . . . .” Under the first prong of Golding, the record either is adequate for review or it is not, and the defendant bears the burden of demonstrating that it is adequate. See State v. Golding, supra, 213 Conn. 240. Consequently, in fairness to the state, I see no reason why an appellate court ever should conduct a Golding
I turn now to the reasons why there is absolutely no merit to the argument of the concurring justice that the slate bears responsibility for the present state of the record. First, as the trial court found, the state clearly met its burden of establishing the validity of the search by demonstrating, contrary 1,o the defendant’s claim, that his father’s consent was voluntary. Having made that showing, there was nothing more for the state to prove in order to defeat the defendant’s motion to suppress. Second, as I previously have explained, ihe defendant’s motion for articulation contained no indication that the defendant intended to raise a claim on appeal that he had not raised in the trial court. See footnote 15 of this opinion. Third, even if the defendant had alerted the trial court that he was seeking an articulation because he intended to raise a new claim on appeal, the trial court would have been under no obligation to grant the defendant’s motion because it is axiomatic that a trial court is not required to render an articulation on a factual or legal claim that was not raised in the trial court. See id. Consequently, it is patently unreasonable for the concurring justice to intimate that the state’s objection to the defendant’s motion for articulation constituted an unwarranted attempt to block the defendant’s legitimate efforts to amplify the record. Fourth, it is undisputed that the trial court, properly denied the defendant’s motion for articulation because the trial court,’s findings and conclusion are fully sufficient for this court’s review of the sole claim that ihe defendant raised in the trial court, with respect to the validity of the search, namely, that his father’s consent to search was not valid. Fifth, the first time that the defendant indicated why he had sought an articulation regarding the question of his mother’s consent was in his motion for review, a motion that this court properly denied because, as I indicated previously, a trial court is under no obligation to file an articulation on an issue that was not raised in that court. Sixth, 1he concurring justice does not, because she legitimately cannot, question the propriety of this court’s determination, implicit, in our denial of the relief sought by the defendant in his motion for review, that the trial court properly had denied the defendant’s motion for articulation. Seventh, even if the trial court had granted the defendant’s motion for articulation with respect to the issue of defendant’s mother’s consent, that, articulation would have been unavailing because, as I have explained, the evidence presented at the hearing on the defendant’s motion to suppress simply was not adequate for any finding or determination regarding the mother’s consent or lack thereof in light of the fact that that issue was not the subject of the suppression hearing. For all these reasons, it is
The same may be said of the concurring opinion insofar as the concurring justice adopts the reasoning of the plurality on this point.
As I discussed previously in this dissent, the record does not establish that the defendant’s mother declined to consent, merely that she declined to sign the consent to search form. For purposes of this discussion only, however, I assume that the record establishes that the defendant’s mother declined to consent to the search itself.
See Silva v. State, 344 So. 2d 559, 563 (Fla. 1977); State v. Randolph, 278 Ga. 614, 604 S.E.2d 835 (2004), cert. granted, 544 U.S. 973, 125 S. Ct. 1840, 161 L. Ed. 2d 722 (2005); In re Welfare of D.A.G., 484 N.W.2d 787, 790 (Minn. 1992); State v. Leach, 113 Wash. 2d 735, 744, 782 P.2d 1035 (1989).
Indeed, in the seminal federal case in this area, United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974), the United States Supreme Court concluded that the consent of the defendant’s co-occupant was binding on the defendant, even though the defendant was present at the scene of the search and never was asked by the police whether he would consent to it. Id., 166-67, 177. Matlock and the present case, therefore, are factually very close; in fact, I do not believe that there is any meaningful factual distinction—that is, a factual distinction of federal constitutional significance—between the two cases.
I reiterate that the judgment of this court is fundamentally erroneous because Golding operates as a bar even to our consideration of the issue of whether the defendant is entitled to invoke his mother’s purported refusal to consent to the search.
As a consequence of the plurality’s holding that the defendant’s state constitutional rights were violated by the search of his house, the state will be precluded from using the fruits of that search, in its case-in-chief, at any future trial of the defendant. That evidence consists of the defendant’s bloody tank top, which contains the victim’s DNA, and his detailed confession, including his acknowledgment that the pendant that was found in the victim’s hair belonged to him. Although it is conceivable, of course, that the state may be able to salvage some of the evidence that the plurality concludes was obtained illegally by the police; see, e.g., State v. Clark, 255 Conn. 268, 280-81 n.29, 764 A.2d 1251 (2001) (“[u]nder the inevitable discovery rale, evidence illegally secured in violation of the defendant’s constitutional rights need not be suppressed if the state demonstrates by a preponderance of the evidence that the evidence would have been ultimately discovered by lawful means” and that those “lawful means which made discovery inevitable . . . were being actively pursued prior to the occurrence of the constitutional violation” [internal quotation marks omitted]); it is by no means clear from the record that the state will be able to demonstrate an exception to the suppression requirement.
Although the defendant invokes both the federal and state constitutions in support of his claim, he does not contend, with respect to this claim, that the state constitution affords him any greater rights than the federal constitution. Accordingly, for purposes of this appeal, I treat the applicable federal and state constitutional provisions as affording the defendant the same level of protection.
The police received this information about the defendant from Michael Scott, whom the defendant knew as “Big Mike.” In his confession, the defendant noted that, as he was leaving the scene of the crime, he saw Scott and several other men seated at a picnic table nearby and exchanged greetings with them.
As I previously noted, the defendant testified at the suppression hearing and at trial. See footnotes 8 and 13 of this opinion.
In light of the trial court’s conclusion that the defendant was in custody when he gave his first statement, and because the state conceded that the defendant had not been advised of his Miranda rights prior to that statement, the trial court granted the defendant’s motion to suppress that initial statement. Although the state does not concede that the trial court properly found that the defendant was in custody at that time, the state nevertheless has not challenged that finding on appeal. Consequently, the propriety of the court’s ruling with respect to the defendant’s motion to suppress his first statement is not the subject of this appeal.
The same is trae with respect to Detective Branetti’s further comment that the police “possibly” could bar the defendant’s parents from entering their home if the decision was made to seek a search warrant. That comment was an accurate representation of standard police practice and it carried no suggestion that the defendant’s father’s refusal to consent to a search of the home automatically would result in a bar to the defendant’s parents’ reentry.
The trial court did not explicitly address the state’s claim of attenuation. Both parties expressly agree, however, that the record nevertheless is fully adequate for our resolution of that issue on appeal.
I agree with the defendant’s assertion that “there was a close temporal sequence: (1) between the illegal seizure and the first statement, obtained less than two hours later . . . and (2) between the first and second statement, which commenced about thirty minutes after the first one was finished."
At the suppression hearing, the defendant did not indicate that the police had threatened him while he was at the police station. At trial, however, the defendant testified that the police had told him that he was “f-ed,” and that, unless he cooperated, he would spend the rest of his life in prison. According to the defendant, the police also told him that, if he cooperated, he would be charged with manslaughter and “probably [would] do ten years.”
The defendant relies on Brown v. Illinois, supra, 422 U.S. 590, and Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979), in support of his contention that his confession was the product of his first statement, which, for purposes of this appeal, the state concedes was the inadmissible fruit of the defendant’s unlawful arrest. This claim lacks merit. Brown and Dunaway each involved factual scenarios in which the petitioner, after being arrested illegally, gave two statements to the police, both of which were incriminating. Dunaway v. New York, supra, 203-204; Brown v. Illinois, supra, 591, 594-95. In each case, the prosecution claimed that the second statement was admissible, and, in each case, the United States Supreme Court disagreed, concluding that the second statement was “the result and the fruit of the first.” Brown v. Illinois, supra, 605; accord Dunaway v. New York, supra, 218 n.20. In the circumstances presented by Brown and Dunaway, the state has a heavy burden of establishing that the second statement is not the product of the first because a defendant who gives one incriminating statement is likely to believe that he has little to lose by giving a second such statement. In contrast to the statements in Brown and Dunaway, however, the defendant’s first statement in the present case was exculpatory, and, consequently, any relationship between that statement and the confession that followed necessarily was significantly less direct than that of the statements at issue in Brown and Dunaway.
The record indicates that the defendant did not preserve this claim in the trial court. Nevertheless, the record is adequate for our review of the claim.
According to defense counsel, he had sought to subpoena Credle earlier in the week by attempting to subpoena him at an address in West Haven. Those efforts were unsuccessful because Credle apparently had moved. Defense counsel noted that he had obtained a New Haven address for Credle, which the state indicated was consistent with the information that it had regarding Credle’s whereabouts. Moreover, both the state and the defendant indicated that Credle recently had been arrested.
The defendant suggests that defense counsel’s failure to attempt to locate Credle was due to 1he fact that Credle had been identified as a possible state’s witness. That fact alone does not help the defendant because the state had identified Credle as a potential witness only. In view of the fact that neither the state nor the defense was obligated to call any witness so identified, defense counsel’s failure to subpoena or otherwise to locate Credle cannot be excused merely because Credle appeared on the state’s witness list.
In Silano, we nevertheless concluded that the Doyle violation was harmless. State v. Silano, supra, 204 Conn. 782, 784.
The defendant asserts that, on four occasions during closing argument, the state’s attorney underscored the defendant’s failure to contact the authorities to correct his story. A careful review of the record, however, reveals that the comments on which the defendant relies pertained only to the patent inconsistencies between the confession that the defendant had given to police and his exculpatory trial testimony. That argument was proper because, as I explained previously, the state is free to impeach a defendant with such inconsistencies. See, e.g., State v. Silano, supra, 204 Conn. 780-81.
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