text:
    State of Connecticut v. Terence Trine
    (13194)
    O’Connell, Laveey and Heiman, Js.
    Argued November 29, 1994
    decision released April 18, 1995

      Dominic S. Piacenza, for the appellant (defendant).

      Kevin T. Kane, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from a judgment of conviction, rendered after a conditional plea of nolo contendere, of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that the trial court improperly denied his motion to suppress evidence that was seized without a warrant under circumstances that required a proper warrant. We agree with the defendant that the evidence seized should have been suppressed.

The facts necessary to a proper resolution of this appeal may be briefly summarized as follows. On March 26, 1993, Officers James Cash and Steven Sinagra of the statewide narcotics task force, a police squad consisting of officers of the Connecticut state and local police, applied for a search warrant authorizing the search of the person and residence of Marybeth Montesi. Partially on the basis of information given to them by two confidential informants, the officers stated that they had reason to believe that Montesi was involved in the sale of cocaine from her home in East Lyme. The warrant was issued the same day and entitled the officers to search Montesi’s person and residence for various items common to trafficking in narcotics, including weapons and handguns.

That afternoon, the team assigned to execute the search warrant met for a preraid briefing. Sergeant Lawrence Pagan, a member of the Connecticut state police with fifteen years experience as a state police officer and three years experience as the sergeant in charge of the eastern division of the statewide narcotics task force, led the team. Pagan was familiar with the contents of the affidavits used in connection with the application for the search warrant and was aware that those affidavits indicated a probability of weapons being found at the scene of the search. He was also aware that the warrant application sought an order of nondisclosure of the warrant and affidavits, alleging that there existed a risk that Montesi or an associate might seek reprisals against the confidential informants that had been the source of the information on which the application was predicated.

At approximately 3 p.m., the task force arrived at Montesi’s home. Because of the home’s location, the task force was unable to conduct surveillance of the area without discovery. As a consequence, the officers were unable to ascertain who or how many persons might be present on the premises when the warrant was executed.

The officers gained entrance to the premises by use of a battering ram and entered with their weapons drawn. Pagan was the second officer to enter the premises, and he observed that three persons were present: two men and one woman. Pagan immediately directed his attention to the man closest to him, later identified as the defendant. Pagan ordered the defendant to lie down on the floor on his stomach with his hands behind his head. The defendant complied with the officer’s direction. Pagan bolstered his weapon and handcuffed the defendant with his arms behind his back. He then patted down the defendant for the purpose of discovering whether the defendant was carrying a weapon. The search revealed that the defendant was not armed.

In the course of conducting his patdown of the defendant, Pagan felt a hard object in the area of the right front pocket of the defendant’s blue jeans and simultaneously heard a sound made by plastic. Pagan immediately concluded that the object that he felt was rock cocaine on the basis of his knowledge that rock cocaine was hard and often kept in small plastic bags, like the object that he felt in the defendant’s pocket. Pagan reached into the defendant’s pocket, seized the object and arrested him for a narcotics violation. It was later discovered that the bag recovered from the defendant’s pocket contained approximately one ounce of rock cocaine.

The defendant asserts that the cocaine seized from his pocket was obtained in violation of article first, § 7, of the Connecticut constitution and, therefore, should have been suppressed. The state, however, urges us to adopt the United States Supreme Court holding in Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), which permits law enforcement officers to seize, without a warrant, that which is determined to be contraband on the basis of an officer’s sense of touch during a legal patdown search of a suspect for weapons. The dispositive issue in this appeal is, therefore, whether the constitution of Connecticut, article first, § 7, contains sufficient elasticity to permit a new exception to the search warrant requirement similar to that created by the United States Supreme Court when it concluded that a “plain feel” exception was not violative of the fourth amendment to the constitution of the United States. We agree with the defendant that adoption of such a rule would be “incompatible with the fundamental precepts underlying [the constitution of Connecticut] article first, § 7.” State v. Miller, 29 Conn. App. 207, 223, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993).

We begin our analysis by restating the principles that govern the relationship between our state constitution and the federal constitution. “It is well established that federal constitutional . . . 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. . . .” (Citations omitted; internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 649, 613 A.2d 1300 (1992). “[W]e may [therefore] find greater protection of individual rights under our state constitution than that provided by the federal constitution.” State v. Miller, 227 Conn. 363, 379, 630 A.2d 1315 (1993).

“[I]n the area of fundamental civil liberties — which includes all protections of the declaration of rights contained in article first of the Connecticut constitution— we sit as a court of last resort [subject to the review of our decision only by our Supreme Court]. ... In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut citizens have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law.” (Internal quotation marks omitted.) Id., 379-80.

“Although our state constitutional decisional law is in its infancy, some distinct, principled jurisprudential theories are emerging for determining when it is appropriate to invoke our state constitution and to afford greater protections to Connecticut residents than those supplied by the United States Supreme Court’s interpretations of consonant provisions of the federal constitution. Although the basis for departure is perhaps most obvious where either the text or the historical setting of the Connecticut constitutional provision at issue varies materially from that of its federal counterpart, our courts have in some instances interpreted our state constitutional provisions more broadly than their federal counterparts even where, as is the case with the search and seizure provisions of the two documents, there is no material difference between either the texts or the historical backgrounds of the two provisions. . . . This has been particularly so where the United States Supreme Court has created exceptions to or deviated from rules previously enunciated by it . . . that are incompatible with the fundamental precepts underlying article first, § 7.” (Citations omitted; internal quotation marks omitted.) State v. Miller, supra, 29 Conn. App. 222-23 (holding that warrant-less searches of impounded automobiles violate Connecticut constitution despite United States Supreme Court holding in Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 [1970]); see also State v. Geisler, 222 Conn. 672, 695, 610 A.2d 1225 (1992) (holding that emergency exception to warrant requirements recognized under federal constitution would be adopted by state but in more limited form); State v. Marsala, 216 Conn. 150, 151, 579 A.2d 58 (1990) (holding that good faith exception to exclusionary rule recognized under federal constitution inimical to purposes of state constitution). We believe that this is such a case.

Our cases have consistently held that both the state and federal constitution evince a preference for warrants to protect the individual rights of our citizens. “It is a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are perse unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” (Emphasis in original; internal quotation marks omitted.) State v. Miller, supra, 29 Conn. App. 217, quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), and Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); see also State v. Lewis, 220 Conn. 602, 609, 600 A.2d 1330 (1991). The requirement that a warrant be obtained before conducting a search “reflects the sound policy judgment that, absent exceptional circumstances, the decision to invade the privacy of an individual’s personal effects should be made by a neutral magistrate .... The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” (Citations omitted; internal quotation marks omitted.) State v. Miller, supra, 219.

“Th[e] protection [afforded by both the federal and state constitution] is particularly important where searches are concerned. Unlike a seizure, which involves state interference with a person’s possessory interest, a search constitutes state interference with a person’s privacy interest. . . . Although an improper seizure can be undone by returning the seized property, privacy, once invaded, cannot be restored. Thus, the invasion of privacy occasioned by an illegal search cannot be remedied satisfactorily, even if a judge subsequently determines that the search was not supported by probable cause.” (Citation omitted.) Id., 220; see also Horton v. California, 496 U.S. 128, 133, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).

Despite the preference for warrants, both our state courts and the federal courts have recognized “a few specifically established and well-delineated exceptions” to that general rule. Katz v. United States, supra, 389 U.S. 357; State v. Lewis, supra, 220 Conn. 609. One of these exceptions was first enumerated in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In Terry, the United States Supreme Court held that the fourth amendment of the United States constitution permitted law enforcement officials to “stop and frisk” suspicious persons without a warrant. Id., 27. The Supreme Court recognized, however, that even a “limited search of [a person’s] outer clothing . . . constitute^] a severe, though brief, intrusion upon cherished personal security,” but determined that the intrusion was outweighed by the need of law enforcement officials to protect themselves and others from harm. Id., 24-25. The fourth amendment was, therefore, interpreted to provide law enforcement officials with “narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Id., 27.

The United States Supreme Court made clear in Terry that such a search could not be justified by “any need to prevent the disappearance or destruction of evidence of crime.” Id., 29. “The sole justification of the search [permitted by Terry] is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Id. The Supreme Court further reinforced the limitations of Terry in Sibron v. New York, 392 U.S. 40, 65-66, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968), where it made clear that a protective search that goes beyond that which is necessary to determine whether a person being detained is armed is constitutionally impermissible and the fruits of any seizure made thereunder must be suppressed.

Our Supreme Court adopted the ruling in Terry as a matter of state constitutional law in State v. Williams, 157 Conn. 114, 249 A.2d 245, cert. denied, 395 U.S. 927, 89 S. Ct. 1783, 23 L. Ed. 2d 244 (1968). Our Supreme Court stated: “We are in accord with the proposition [enumerated in Terry] that, as a matter of common law, [w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” (Internal quotation marks omitted.) Id., 118. The Williams court therefore held that, as a matter of state constitutional law, police officers were permitted to detain persons suspected of being dangerous or committing a crime and to “frisk” such persons for the purpose of determining whether they are carrying a weapon. Id., 118-19.

Our cases following Williams have consistently reemphasized the reasoning of Terry v. Ohio, supra, 392 U.S. 30, that the search permitted is limited in scope to a protective search for weapons and does not extend to a “general exploratory search for whatever evidence of criminal activity [an officer] might find.” See, e.g., State v. Mierez, 24 Conn. App. 543, 548, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991); Our cases have also made clear that a Terry stop that is justified at its inception can become constitutionally impermissive if it becomes more intrusive than needed to complete the investigation for weapons. State v. Edwards, 214 Conn. 57, 72, 570 A.2d 193 (1990); State v. Mitchell, 204 Conn. 187, 197, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987).

The United States Supreme Court, however, has been gradually moving away from the limitations enumerated by Terry v. Ohio, supra, 392 U.S. 1, and we are faced in this case with deciding whether our state constitution permits us to follow their lead. We conclude that the constitution of Connecticut, article first, § 7, does not permit the expansions recognized under the federal constitution in Minnesota v. Dickerson, supra, 508 U.S. 366.

In Dickerson, the United States Supreme Court held that the fourth amendment permits the seizure of contraband “detected during a protective patdown search of the sort permitted by Terry.” Id., 373. In arriving at its decision, the Supreme Court referred, by way of analogy, to the doctrine of “plain view.” Id., 374-75. “Under [the doctrine of plain view], if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” Id., 375. From that doctrine, the Supreme Court believed that their holding of “plain feel” logically flowed. Id., 375-76. The Dickerson court stated: “If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.” Id.

Although Connecticut has also adopted the plain view doctrine; State v. Krause, 163 Conn. 76, 82-83, 301 A.2d 234 (1972); we do not find it an apt analogy to the situation before us. Accordingly, we hold today that the “plain feel” doctrine enunciated in Minnesota v. Dickerson, supra, 508 U.S. 375-76, expands the permissible search beyond the bounds of the Connecticut constitution and ignores the rationale for the limited exception to the warrant requirement that was created in Terry v. Ohio, supra, 392 U.S. 1, and State v. Williams, supra, 157 Conn. 114.

In arriving at this result, we are mindful of the applicable factors enumerated in State v. Geisler, supra, 222 Conn. 685-86, as important to determining the contours of our state constitution. We have already set forth that the holdings of this court and of our Supreme Court have consistently limited Terry searches to a protective search for weapons and that the Terry exception to the warrant requirement must be narrowly drawn to protect officers and others from harm while not unnecessarily intruding on an individual’s right to privacy. See, e.g., State v. Williams, supra, 157 Conn. 114. We cannot ignore this long history in Connecticut and the rights that Connecticut citizens have thus come to expect as their due.

Our conclusion also finds support in the opinion of the Minnesota Supreme Court in its evaluation of Minnesota v. Dickerson, 481 N.W.2d 840 (Minn. 1992). The Minnesota Supreme Court, albeit under its interpretation of the fourth amendment to the federal constitution, and not as an interpretation of its own state charter, rejected the analogy of plain feel to the plain view doctrine on two bases: (1) “the sense of touch is inherently less immediate and less reliable than the sense of sight”; and (2) “touch is far more intrusive into the personal privacy that is the core of the fourth amendment.” Id., 845. We agree that the sense of touch is far more unreliable and touching far more intrusive into the right of personal privacy expected by our citizens and conclude that the concept of “plain feel” fails to comport with the mandate of article first, § 7, of the Connecticut constitution.

We note that in arriving at this decision, “[w]e are ever mindful of the legitimate needs of law enforcement officials and do not cavalierly restrict the investigative tools at their disposal. Nonetheless . . . [e]ven if the warrant requirement does inconvenience the police to some extent . . . [i]t is merely a part of the price that our society must pay in order to preserve its freedom.” (Internal quotation marks omitted.) State v. Miller, supra, 29 Conn. App. 235, quoting Justice Stevens’ dissent in California v. Acevedo, 500 U.S. 565, 601, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991).

Application of our holding today to the facts of the case before us mandates suppression of the cocaine seized from the defendant’s pocket. Pagan had reason to believe that he and his fellow officers may have been in danger upon entering Montesi’s home. Because of their inability to conduct a surveillance, they could not know how many people they would find in the home. In addition, the search warrant itself stated that weapons were likely to be found on the premises. Pagan and his fellow officers were surely aware that weapons are often used by those involved in the trafficking of narcotics. Furthermore, the warrant application requested nondisclosure of its contents because of a fear that Montesi or one of her associates might retaliate against the confidential informants that provided the police with information. Pagan, therefore, had every reason to detain the defendant in order to secure the premises and to ensure that the defendant was not armed. See State v. Williams, supra, 157 Conn. 118.

Pagan testified that his patdown search of the defendant revealed that the defendant was not in possession of any type of weapon. Once he was assured that the defendant was not armed and that he was not in danger, that search should have ended. There was no indication that Pagan believed that the hard object that he felt in the defendant’s front pocket was any sort of weapon. In fact, his testimony was to the contrary. Pagan’s search of the defendant was thus sufficient to secure his safety and the safety of the others in the Montesi home without reaching into the defendant’s pocket to remove contraband. The search of the defendant went beyond the permissible bounds of the Connecticut constitution and the evidence seized must therefore be suppressed. See State v. Edwards, supra, 214 Conn. 72.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to suppress.

In this opinion the other judges concurred.

       Practice Book § 4003 provides in pertinent part: “(a) When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such appeal shall be limited to whether it was proper for the court to have denied the motion to suppress . . . .” See also General Statutes § 54-94a.

       General Statutes § 21a-277 (a) provides in pertinent part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter . . . [shall be punished].”

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and 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.”

       The fourth amendment to the United States constitution, which was made applicable to the states in Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), 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.”

        State v. Geisler, supra, 222 Conn. 685-86, set forth six factors to consider when evaluating the rights afforded to Connecticut citizens under our constitution: (1) the text of the constitutional provisions; (2) holdings and dicta of the Supreme and Appellate Courts of this state; (3) federal precedent; (4) sister state decisions; (5) historical considerations; and (6) economic/sociological considerations. Only those factors relevant to the particular case need be addressed. State v. Miller, supra, 227 Conn. 381-82.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    State of Connecticut v. Troy Mozell
    (13828)
    Dupont, C. J., and Spear and Hennessy, Js.
    Argued February 7
    decision released April 25, 1995

      Gerald Bodell, special public defender, for the appellant (defendant).

      Ronald G. Weller, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John M. Waddock, assistant state’s attorney, for the appellee (state).
   Spear, J.

The defendant appeals from a judgment of conviction of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), and murder as an accessory in violation of General Statutes §§ 53a-8 and 53a-54a (a). On appeal, he claims that the trial court improperly (1) admitted prior inconsistent statements as substantive evidence and (2) denied his motion for judgment of acquittal, which alleged that (a) the convictions were improperly based solely on the prior inconsistent statements, (b) prosecutorial misconduct during closing arguments deprived him of a fair trial, (c) the evidence was insufficient to convict him of conspiracy to commit murder and (d) he was denied his right to a speedy trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 27,1989, Thomas Sanders was selling drugs in front of a house located at 2 Arthur Street in New Haven. Shelton Tucker, who lived in the house, told Sanders to leave. When Sanders refused, Tucker’s cousin, Rodney Lewis, came outside and pushed Sanders. Sanders then left the area.

On the next evening, Sanders returned with his brother, Robert Henderson, and some friends. Henderson confronted Tucker and asked him whether he had beaten up Sanders. When Tucker replied that he had not, Henderson and the others left the area. On December 29, 1989, Tucker and Lewis were in front of 2 Arthur Street when a Jeep Cherokee carrying four passengers, including the defendant, drove past them. The defendant fired approximately six to eight shots at Tucker and Lewis from the Jeep, but they were not injured. Later that same day, Tucker and Lewis saw the same jeep being driven on Arthur Street. Four members of the Island Brothers gang, one of whom was the defendant, exited the Jeep and commenced shooting at Tucker and Lewis. Although Tucker and Lewis escaped harm, Robert Coleman, an innocent bystander, was shot in the chest and died from that wound.

I

- The defendant’s first two claims, which involve the admission and use of prior inconsistent statements, will be discussed together because they both turn on the application oí State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The defendant argues that the trial court improperly admitted into evidence for substantive purposes the prior inconsistent statements of Lewis, Tucker and Larry Johnson. He argues that the statements were not given under circumstances reasonably assuring their reliability as required by State v. Whelan, supra, 743. We disagree.

The following additional facts are necessary for the disposition of this issue. Shortly after the shooting, three witnesses, Tucker, Lewis and Johnson, gave statements to the police implicating the defendant. At trial, the three witnesses were called to the stand to testify, but none implicated the defendant in the shooting. Lewis testified that he had not seen the defendant at the time of the shooting. Tucker testified that, although he could remember the defendant’s being involved in the shooting earlier that day, he could not remember if the defendant had been involved in the later shooting. Johnson testified that the defendant was not involved in the shooting.

The state then sought to introduce Lewis’ and Tucker’s prior inconsistent statements for substantive purposes. The trial court admitted into evidence a tape-recorded statement that Lewis gave to the police shortly after the fatal shooting in which he stated a number of times that the defendant was involved in the shooting. The trial court also admitted into evidence Tucker’s prior written statement, which was made shortly after the shooting. In the written statement, Tucker stated that the defendant was involved in the shooting.

It is well established in Connecticut that an exception to the hearsay rule allows the substantive use of prior inconsistent statements if certain conditions that tend to ensure their reliability have been satisfied. In State v. Whelan, supra, 200 Conn. 753, our Supreme Court adopted a rule “allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.” Whelan and its progeny make clear that this exception applies to tape-recorded statements as well because “prior tape recorded statements possess similar indicia of reliability and trustworthiness to allow their substantive admissibility as well.” Id., 754 n.9; see also State v. Borrelli, 227 Conn. 153, 158 n.5, 629 A.2d 1105 (1993); State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386 (1993).

The prior inconsistent statements admitted into evidence in this case fall squarely within the Whelan rule. Both declarants witnessed and had personal knowledge of the incident. They both testified and were available for cross-examination. Tucker’s prior statement was written and signed by him, and Lewis’ statement was tape-recorded.

Despite the fact that the Whelan criteria were met, the defendant claims that the statements were made under circumstances that would not guarantee their reliability. Specifically, he argues that the statement is inherently unreliable because Lewis was fifteen years old and his parents were not notified that he would be asked to give a statement. He also argues that Tucker’s prior statement is unreliable because it was “spoon-fed” by the police, and he wanted to change the statement both when it was given and later at court. We are unpersuaded by the defendant’s arguments.

Both statements were given under circumstances that reasonably assured their reliability. First, each statement was given on the day of the shooting when the event was fresh in the declarants’ memories. See State v. Whelan, supra, 200 Conn. 754. Second, each statement was given to a police officer. This adds to their reliability because, if the statements were false, the declarants could have faced criminal charges. Id., 754-55. Finally, the declarants testified at trial and were available for cross-examination by the defendant. This gave the jury “an adequate opportunity to observe and examine the demeanor of the witness[es], to hear the testimony and to assess [their] credibility.” Id., 755. As these factors assure the reliability of the declarants’ prior inconsistent statements, the trial court properly admitted them into evidence for their substantive use.

The defendant alternatively argues, without citing authority, that even if the prior inconsistent statements were properly admitted into evidence, they cannot be the sole basis of conviction. We conclude that the statements were supported by corroborating evidence: the nine millimeter bullets found at the defendant’s home matched the bullets from the earlier incident in which the defendant fired shots at Tucker and Lewis, and the same vehicle was used in both shooting incidents.

II

The defendant’s claims of prosecutorial misconduct, insufficiency of the evidence as to the conspiracy conviction and denial of his right to a speedy trial were inadequately briefed. The defendant’s failure to present an adequate brief precludes review of these claims. “We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991).

A

The defendant briefed the prosecutorial misconduct issue in one short paragraph. The prosecutor argued to the jurors that, on the basis of the evidence, they could find that Lewis, Tucker and Johnson had changed their stories out of concern for their personal safety. The defendant failed to cite a case or any other authority for his assertion that the prosecutor’s remarks constituted misconduct.

B

The defendant also claims that the evidence was insufficient to convict him of conspiracy to commit murder. The defendant also briefed this issue in one short paragraph and failed to provide any legal analysis or to cite any authority.

C

The defendant’s final claim is that his right to a speedy trial was violated, and, therefore, the trial court should have granted his motion for judgment of acquittal. We note that the defendant first asserted his right to a speedy trial after the trial. He argues that he was prejudiced by the three and one-half year delay between his arrest and trial because it prevented him from producing “certain witnesses.” The defendant has provided nothing to show who these witnesses were, to what they would have testified or why they were unable to be produced at trial.

To support this claim, the defendant cites two Connecticut cases. State v. Davis, 192 Conn. 739, 474 A.2d 776 (1984) (twenty-six month delay did not violate defendant’s right to speedy trial); and State v. Johnson, 190 Conn. 541, 461 A.2d 981 (1983) (no denial of right to speedy trial where there was sixteen month delay and defendant moved to dismiss fourteen months after arrest). He does not provide an analysis as to how these cases support his claim, nor does he attempt to analogize from these cases. The defendant also failed to address the test in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), which sets forth the four factors that the court must weigh to determine whether the defendant’s right to a speedy trial has been violated.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       See footnote 2.

       This claim also includes the admissibility of a photograph identified by a witness and a tape recording of the witness’ prior inconsistent statement.

       Although the defendant claims that prior inconsistent statements of three people were admitted into evidence, the record reflects that only the statements of Lewis and Tucker were admitted for substantive purposes. Therefore, we will review the admissibility of these statements only.

       The state also offered a photograph of the defendant that Tucker identified as the person involved in the shooting.

       The minor declarant could have faced delinquency charges.

       The heading to the defendant’s claim is: “The evidence was insufficient to support a conviction of the defendant for perjury and therefore it should be reversed.” As the defendant was never charged with perjury in this case and because the defendant refers to conspiracy in the body of this claim, it appears that the use of the word perjury in the heading was a mistake. We, therefore, regard this claim as a challenge to the sufficiency of the evidence on the conspiracy count.


author: Foti, J.

text:
    Ronald Schwartz et al. v. Reginald Stevenson et al.
    (13292)
    O’Connell, Foti and Heiman, Js.
    Argued January 4
    decision released April 25, 1995

      MichaelF. O’Connor, with whom, on the brief, was CarlE. Celia, for the appellant (third party defendant).

      Donald McPartland, for the appellees (third party plaintiffs).
   Foti, J.

The third party defendant, American States Insurance Company (American), appeals from the summary judgment rendered in favor of the third party plaintiffs, Ross Stevenson and Virginia Stevenson, and from the denial of its motion for summary judgment.

The plaintiff, Ronald Schwartz, a minor suing through his father, Philip Schwartz, and Philip Schwartz, individually, filed a two count complaint against the defendants, Reginald Stevenson, a minor, and his parents, Ross Stevenson and Virginia Stevenson. The complaint alleges that on May 26, 1990, Ronald Schwartz, then age sixteen, was a passenger in the rear of a Honda Trailblazer operated by fourteen year old Reginald Stevenson. The allegations are that Ronald sustained injuries and damages as a result of Reginald’s negligent operation of that vehicle, and because of the negligence of the parents in entrusting a dangerous instrumentality to their minor son. The Stevensons’ motion to implead American as a third party defendant was granted. American is the insurance carrier that issued a homeowner’s policy to the Stevensons. The third party complaint alleges that American breached its contract of insurance by refusing to comply with its duty to defend the defendants in the underlying action. American opposed the third party plaintiffs’ motion for summary judgment and, further, moved for summary judgment as to liability on the third party complaint.

Both parties claimed that there was no genuine issue of any material fact, and each claimed judgment as a matter of law. American claimed that it was entitled to summary judgment on the issue of liability. It argued that the insurance policy that it issued to the Steven-sons covers injuries incurred only as a result of the operation of a motorized land conveyance that is not owned by the insured. It noted that the original complaint contained no allegation as to the ownership of the Honda Trailblazer. American argued that unless and until the original plaintiffs allege that the vehicle operated by Reginald Stevenson was not owned by any of the defendant insureds, they have not stated a claim for an injury covered by the policy. In denying American’s motion for summary judgment, the court rejected American’s argument stating that “if adopted, [it] would place the court in the untenable position of assuming something not in the pleadings to the detriment of the parties.” (Emphasis in original.)

The standard of our review of the granting of a motion for summary judgment is well established. Summary judgment “shall be rendered . . . if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384. The presence of an alleged adverse claim is not sufficient to defeat a motion for summary judgment. Real Estate Auctions, Inc. v. Senie, 28 Conn. App. 563, 567, 611 A.2d 452 (1992).

The determination of the question whether American has a duty to defend the original action brought by the Schwartzes against the Stevensons depends on whether the complaint in that action stated facts that áppear to bring the plaintiffs’ claims of damages within the policy coverage. Schurgast v. Schumann, 156 Conn. 471, 489, 242 A.2d 695 (1968); Missionaries of the Co. of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 110, 230 A.2d 21 (1967). “[T]he duty to defend means ‘that the insurer will defend the suit, if the injured party states a claim, which, qua claim, is for an injury “covered” by the policy; it is the claim which determines the insurer’s duty to defend ....’” Keithan v. Massachusetts Bonding & Ins. Co., 159 Conn. 128, 139, 267 A.2d 660 (1970), quoting Lee v. Aetna Casualty & Surety Co., 178 F.2d 750, 751 (2d Cir. 1949); see also Alderman v. Hanover Ins. Group, 169 Conn. 603, 610, 363 A.2d 1102 (1975). “[A] duty to defend an insured arises if the complaint states a cause of action which appears on its face to be within the terms of the policy coverage. ’’ LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 255, 268 A.2d 663 (1970).

The matter before the trial court was one dealing with the insurer’s duty to defend where the sole issue was whether the policy “covered” the injury in dispute. See Smedley Co. v. Employers Mutual Liability Ins. Co. of Wisconsin, 143 Conn. 510, 516, 123 A.2d 755 (1956). “Thus, if the plaintiffs, in their original suit . . . stated a claim which is for an injury ‘covered’ by the policy, there would be no question of [American’s] duty to defend the action.” Tiedemann v. Nationwide Mutual Fire Ins. Co., 164 Conn. 439, 444, 324 A.2d 263 (1973). Here, the third party defendant argues that unless the original complaint is sufficient to demonstrate, by allegation, that the vehicle is not owned by an insured, it does not plead into the policy and, therefore, there is no duty to defend. American also argues that no duty to defend arises from a complaint that is “neutral,” or from one that alleges an injury that “may” be within the policy coverage. We do not agree.

Whether the third party defendant has a duty to defend the original action “depends on whether the complaint in that action stated facts which appeared to bring [the plaintiff’s] claimed injury within the policy coverage.” (Emphasis added.) Missionaries of the Co. of Mary, Inc. v. Aetna Casualty & Surety Co., supra, 155 Conn. 110. “If an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured. Lee v. Aetna Casualty & Surety Co., 178 F.2d 750 ([2d Cir.] 1949) (Hand, J.) . . . (Emphasis in original.) West Haven v. Liberty Mutual Ins. Co., 639 F. Sup. 1012 (D. Conn. 1986), citing Schurgast v. Schumann, supra, 156 Conn. 489, and Missionaries of the Co. of Mary, Inc. v. Aetna Casualty & Surety Co., supra, 110; see also West Haven v. Commercial Union Ins. Co., 894 F.2d 540, 544 (2d Cir. 1990). The appropriate test, as applied by the trial court, is whether the allegations of the complaint fairly state facts that appear to bring the injury complained of within the coverage. We agree with the trial court that the complaint states facts that appear to bring the injury complained of within the coverage.

We also conclude that the original complaint need not allege a negative, that is, that the vehicle was not owned by an insured. A complaint need not negate each and every exclusion within a policy in order to trigger a contractual obligation to defend. It is the allegations on the face of the complaint that govern the duty to defend. While the meaning of the exclusionary clause in the present policy is clear and unambiguous, its existence per se does not relieve an insurer’s duty to defend when an underlying complaint facially alleges facts that appear to bring the claimed injury within the policy coverage. Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 646 A.2d 806 (1994); Schurgast v. Schumann, supra, 156 Conn. 471.

We conclude that the trial court properly granted the third party plaintiffs’ motion for summary judgment as to American’s duty to defend.

The judgment is affirmed.

In this opinion the other judges concurred.

       A summary judgment rendered only on the issue of liability, without an award of damages, is usually not a final judgment from which an appeal lies. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84, 495 A.2d 1063 (1985). Here, we interpret the trial court’s decision as being limited to American’s duty to defend; the rights of the parties, as to the third party’s duty to defend, are concluded and further proceedings cannot affect them. See State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The contractual duty to defend exists regardless of the duty of the insurer to indemnify. Keithan v. Massachusetts Bonding & Ins. Co., 159 Conn. 128, 138, 267 A.2d 660 (1970).

       The policy in question contains the following exclusion:
      “1. Coverage E-Personal Liability and Coverage F Medical Payments to Others do not apply to bodily injury or property damage . . .
      “e. arising out of:
      “(1) the ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an insured;
      “(2) the entrustment by an insured of a motor vehicle or any other motorized land conveyance to any person ....
      “This exclusion shall not apply to . . .
      “(2) a motorized land conveyance designed for recreational use off public roads, not subject to motor vehicle registration and:
      “(a) not owned by an insured . . . .”


author: Per Curiam.

text:
    Patricia DeLuca v. Ferdinand DeLuca, Sr.
    (13253)
    Heiman, Schaller and Hennessy, Js.
    Argued March 13
    decision released April 25, 1995

      Margaret M. Dorsey, with whom, on the brief, was Frederic S. Brody, for the appellant (plaintiff).

      Joseph T. O’Connor, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the trial court’s modification of custody. The plaintiff claims that the trial court improperly found that there had been a material change in circumstances since the custody order was entered at the time of dissolution and, therefore, the trial court improperly granted the defendant’s motion for modification. We find the record inadequate to review the plaintiff’s claim and affirm the judgment of the trial court.

The marriage between the parties was dissolved by judicial decree on December 10, 1990. At the time of dissolution, the trial court incorporated the terms of a prior stipulation of the parties concerning custody of their sole minor child. On March 7,1992, the defendant moved for modification of custody. This motion was granted by the trial court in a written memorandum of decision dated January 10, 1994. In its memorandum of decision, the trial court expressly found that “there has been a substantial change in circumstances since the dissolution of the marriage on December 10, 1990. The child now attends school on a full-time basis and is involved in activities.” The court ordered that the parties share joint legal and physical custody and a specific visitation schedule was set in place.

The plaintiff argues that the child was in school on a full-time basis when the original custody order was incorporated in the judgment of dissolution. She also claims that the import of the phrase “involved in activities” was not adequately explained by the trial court. The plaintiff argues that the court abused its discretion in modifying custody because there was no basis for finding that a material change in circumstances had occurred.

Although the plaintiff claims that the trial court abused its discretion in finding a material change in circumstances, she failed to request that the trial court articulate the bases of its finding. “It is a well established principle of appellate procedure that the appellant has the duty of providing this court with a record adequate to afford review. Practice Book § 4061; Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). Where the factual or legal basis of the trial court’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § 4051. Matza v. Matza, 226 Conn. 166, 187-88, 627 A.2d 414 (1993).” State v. Marquis, 36 Conn. App. 803, 804, 653 A.2d 833 (1995). The plaintiff failed to do so.

Our review of the trial court’s memorandum of decision fails to enlighten us as to the factual basis for the conclusion that a material change in circumstances had occurred, although it is unquestionable that the trial court did reach such a conclusion. When the decision of the trial court does not make the factual predicates of its findings clear, we will, in the absence of a motion for articulation, assume that the trial court acted properly. Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 773-74, 646 A.2d 790 (1994); State v. Marquis, supra, 36 Conn. App. 804.

The judgment is affirmed.