author: Glass, J. Berdon, J.,

text:
    State of Connecticut v. Billy Waller, Jr.
    (14367)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.

      Argued March 31
    decision released August 4, 1992

      Stephen D. Brown, special public defender, with whom was Timothy Patrick Brady, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom were Margaret G. Rodionovas, deputy assistant state’s attorney, and, on the brief, Richard N. Palmer, chief state’s attorney, Donald A. Browne, state’s attorney, and Steven M. Sellers, assistant state’s attorney, for the appellee (state).
   Glass, J.

After a jury trial, the defendant, Billy Waller, Jr., was convicted of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and failure to appear in the first degree in violation of General Statutes § 53a-172 (a). The trial court imposed a total effective sentence of ten years imprisonment, execution suspended after six years, followed by five years probation. The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment. State v. Waller, 25 Conn. App. 575, 595 A.2d 916 (1991). We granted certification and now affirm the judgment of the Appellate Court.

The disposition of this appeal turns on the validity of a warrantless search of the defendant’s car by the police. That search led the police to discover and to seize certain contraband from the defendant’s car. The trial court denied the defendant’s motion to suppress the contraband on the following factual record. On August 12, 1987, several police officers were on routine patrol in Father Panik Village, a housing project in Bridgeport. At approximately 6:15 p.m., Sergeant Joe Convertito observed what he considered to be suspicious behavior by the driver of a blue or gray Lincoln automobile. Upon running a check of the license plate, Convertito discovered an outstanding arrest warrant for the vehicle’s owner. On the basis of information transmitted by Convertito over the police radio, Officer George Vivo stopped the vehicle, which was being driven by the defendant. Vivo requested the defendant’s license and, upon ascertaining that he was the party named in the warrant, asked him to step out of the car. The defendant complied, at which point Officers Nick Ortiz and John Loscak arrived. Vivo then conducted a pat down search of the defendant’s person, which yielded no weapons or incriminating evidence. Vivo informed the defendant that he was being arrested on the basis of an outstanding arrest warrant. The defendant told Vivo that he had taken care of the warrant. After confirming the validity of the warrant, Vivo arrested the defendant, handcuffed him and placed him in the police cruiser of Ortiz and Loscak. While the defendant remained at the scene in the cruiser, Vivo proceeded to secure the defendant’s car in accordance with orders from Convertito. He opened the driver’s side door of the defendant’s vehicle, and on the armrest on the inside of the door he observed in plain view a glassine envelope containing a white substance. Vivo then looked in the storage area beneath the armrest, where he discovered a brown paper bag. He opened the bag and found seven glassine envelopes similar to the one that he had found atop the armrest. Vivo then drove the defendant’s car to police headquarters, following Ortiz and Loscak, who had the defendant in their cruiser. The glassine envelopes found in the defendant’s vehicle were subsequently determined to contain narcotics.

The defendant moved to suppress the eight packets of narcotics seized as a result of the warrantless search of his automobile on the basis that the search violated his rights under the fourth and fourteenth amendments to the United States constitution, and article first, § 7, of the Connecticut constitution. The defendant argued that although the search was contemporaneous with his arrest, it nonetheless was unreasonable because he did not have access to his automobile and because no justification existed for a warrantless search. State v. Waller, supra, 576. The trial court, after a hearing, concluded that the search was lawful and denied the defendant’s motion to suppress. The court determined that the stop of the defendant’s car was proper, and that, because the defendant remained at the scene of the arrest while Vivo conducted the search, the search was a proper search incident to arrest pursuant to New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). The trial court concluded, moreover, that even if the search was not lawful as a search incident to arrest, it could, nevertheless, be upheld under the inevitable discovery rule. State v. Waller, supra.

On appeal, the Appellate Court affirmed the judgment of the trial court, concluding: “The facts of this case fall squarely within the boundaries established in State v. Badgett, [200 Conn. 412, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986)], and its progeny. In addition, the state constitution has been construed to allow warrantless searches incident to lawful arrests. State v. Delossantos, 211 Conn. 258, 266, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); State v. Lizotte, 11 Conn. App. 11, 12, 525 A.2d 971, cert. denied, 204 Conn. 806, 528 A.2d 1154 (1987). The defendant’s claim, therefore, is without merit.” Id., 578.

We granted the defendant’s petition for certification limited to two questions: “(1) [w]hether pursuant to article first, § 7, of the Connecticut constitution, Officer Vivo’s warrantless search of the defendant’s car was unreasonable since the defendant did not have access to a weapon or the ability to destroy evidence of a crime”; and “(2) [w]hether the warrantless search of the defendant’s car could be justified under any exception to the warrant requirement found in article first, § 7, of the Connecticut constitution, especially since the defendant was restrained from reaching his vehicle, and Officer Vivo lacked any reason to justify the search?” State v. Waller, 220 Conn. 920, 597 A.2d 343 (1991).

The defendant argues that the Appellate Court incorrectly upheld the trial court’s admission into evidence of the contraband seized during the warrantless search of his automobile, under an exception to the warrant requirement of article first, § 7, of the Connecticut constitution. The defendant acknowledges that pursuant to New York v. Belton, supra, the fourth amendment to the United States constitution permits a police officer who has made a lawful custodial arrest of the occupant of an automobile, to search the vehicle’s passenger compartment as a contemporaneous incident of the arrest. The defendant thus concedes that “[u]nder federal law, officer Vivo’s search of [his] car would be considered reasonable as a search incident to a lawful custodial arrest.” The defendant contends, however, that article first, § 7, of the state constitution affords greater protection against warrantless searches of automobiles to Connecticut’s citizens than does the federal constitution, where no independent probable cause to search exists. The state argues that the Appellate Court correctly held that the disposition of this case is controlled by our decisions in State v. Badgett, supra, and State v. Delossantos, supra. We agree with the state.

Recently, on two separate occasions, we have reviewed the status of our law regarding the warrantless search of an automobile stopped in a public area, that is conducted after the driver has been arrested, handcuffed and placed in a police cruiser. State v. Delossantos, supra; State v. Badgett, supra. In State v. Badgett, supra, in determining the validity of the warrantless search of a vehicle incident to a lawful custodial arrest, pursuant to the fourth amendment to the United States constitution, we stated: “Although [New York v. Belton, supra,] appears to have removed the necessity for factual analysis in each case of the actual likelihood that a person arrested may be able to obtain a weapon or destroy evidence contained in the passenger compartment of his vehicle, we construe it to allow a warrant-less search of a vehicle incident to a lawful custodial arrest only while the arrestee remains at the scene of the arrest at the time the search is conducted. ” (Emphasis added.) Id., 428. Thus, in Badgett, we followed the rationale of Belton to the extent that where the defendant is restrained as the result of a lawful custodial arrest and he remains at the scene of the arrest, his vehicle may legally be searched incident to the arrest. The defendant in Badgett, however, raised no state constitutional claim.

Our conclusion in Badgett was brought into sharper focus in State v. Delossantos, supra. In Delossantos, a state police trooper stopped the defendant for speeding. After the defendant had produced his operator’s license in response to the trooper’s request, the trooper, while standing at the side of the automobile, observed through the window what appeared to be the butt of a gun under the driver’s seat. The trooper ordered the defendant out of the vehicle, escorted him to the front and frisked him. The trooper then opened the front passenger door of the vehicle, reached beneath the driver’s seat and removed a fully loaded revolver. After discovering that the defendant had no permit for the gun, the trooper placed him under arrest, handcuffed him and searched him. Thereafter, another trooper arrived on the scene and watched the defendant while the arresting trooper searched the interior of the defendant’s automobile, including its hatchback area. In the hatchback area, the trooper found a brown paper bag, inside of which was a plastic bag that contained a white powdery substance, later determined to be cocaine.

Prior to trial, the defendant challenged the admission into evidence of the cocaine on the basis that the trooper’s search of the hatchback area was illegal. The trial court admitted the challenged evidence, however, on the ground that the search was valid as a search incident to arrest. On appeal, the defendant argued that “the warrantless search of the hatchback area exceeded the permissible scope of a search incident to arrest, in violation of his rights under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution.” Id., 263. We upheld the validity of the search under the federal constitution pursuant to New York v. Belton, supra, and its progeny. See United States v. Russell, 670 F.2d 323 (D.C. Cir.), cert. denied, 457 U.S. 1108, 102 S. Ct. 2909, 73 L. Ed. 2d 1317 (1982). In addressing the defendant’s claim under the state constitution, we stated: “The defendant urges us to hold that even if the hatchback search is permissible as a search incident to arrest under the federal constitution, it should not be permissible under article first, § 7, of the Connecticut constitution. It is beyond debate that each state has the ‘ “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980); see Oregon v. Hass, 420 U.S. 714, 718, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975).’ State v. Dukes, 209 Conn. 98, 104, 547 A.2d 10 (1988). In considering the level of individual protection and the scope of a warrantless search of an automobile under article first, § 7, of the Connecticut constitution, we have observed that ‘our automobile exception permits a warrantless search of an automobile whenever the police have probable cause to do so. See, e.g., State v. Badgett, [supra]. It is also correct that we have recognized that the police may make a search without a warrant incidental to a lawful custodial arrest. Id., 424; see New York v. Belton, supra; State v. Shaw, 186 Conn. 45, 48, 438 A.2d 872 (1982).’ State v. Dukes, supra, 120-21.” State v. Delossantos, supra, 265-66.

In Delossantos, therefore, we recognized that our state constitution permits law enforcement officers to conduct a warrantless search when it is done as a contemporaneous incident to a lawful custodial arrest. We held, accordingly, pursuant to article first, § 7, that “when police make a lawful custodial arrest of an occupant of an automobile, and the arrestee is detained at the scene, police may contemporaneously search without a warrant the interior passenger compartment of the automobile. State v. Dukes, supra; State v. Shaw, supra.” (Emphasis added.) Id., 266-67. We are persuaded, as was the Appellate Court, that the present case is governed by our holding in Delossantos.

The defendant attempts to distinguish Delossantos on the basis that the trooper in that case had independent probable cause to search the defendant’s car because he had found a gun under the driver’s seat. The defendant concedes, however, that the warrant-less search in Delossantos was not upheld by this court on the basis of probable cause, but rather as a valid search incident to arrest. While the defendant in Délossantos did not challenge the search of the vehicle interior other than the hatchback area, our holding in that case encompasses the facts in the present case. The defendant in this case does not contest the lawfulness of his arrest and the record, including the defendant’s own testimony, establishes that he remained at the scene while Vivo searched his car. In accordance with our holding in State v. Delossantos, supra, therefore, we conclude that the trial court properly admitted the evidence obtained as a result of the warrantless search of the defendant’s vehicle.

The judgment of the Appellate Court is affirmed.

In this opinion Peters, C. J., Callahan and Borden, Js., concurred.

Berdon, J.,

dissenting. We cherish our sacred constitutional right to privacy, which includes the right to be free from unreasonable searches and seizures under the fourth and fourteenth amendments to the federal constitution and under article first, § 7, of our state constitution. That right is protected by the requirement that before a police officer may search our homes or possessions, a warrant must be issued upon probable cause. 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, 423-24, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); see also Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971); Stoner v. California, 376 U.S. 483, 486, 84 S. Ct. 889, 11 L. Ed. 2d 856, reh. denied, 377 U.S. 940, 84 S. Ct. 1330, 12 L. Ed. 2d 303 (1964); State v. Zindros, 189 Conn. 228, 237, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).

There are three recognized exceptions to the warrant requirement: “(1) where searches have been undertaken incident to a lawful custodial arrest ... (2) where there is probable cause to believe that a motor vehicle contained contraband or evidence pertaining to a crime . . . and (3) where the search has been conducted in order to inventory personal property lawfully taken into police custody. . . . These exceptions have been jealously and carefully drawn . . . and the burden is on the state to establish the exception.” (Citations omitted; internal quotation marks omitted.) State v. Badgett, supra, 424. Today, the majority loses sight of the reasons why a search incident to a lawful arrest is an exception to the warrant requirement, which is, of course, to provide for the safety of the arresting officer and to preserve evidence that is easily concealable or destructible. Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Badgett, supra, 425.

In this case, the police officer arrested the defendant, handcuffed him and placed him in the police cruiser and then proceeded to search his car without a warrant. How, then, can the state justify this as a search incident to a lawful arrest? How could the search of the defendant’s car provide the police officer with any more safety than he already had once the defendant was handcuffed and placed in the police cruiser? How could the defendant conceal or destroy any evidence in his car once he was secured in such a manner?

Nevertheless, the Supreme Court of the United States adopted a bright-line test under the fourth amendment to the federal constitution. It states that when a police officer has made a “lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). As the majority of our court recognized in Badgett, the court in Belton adopted the fiction that the interior of a car is always within the immediate control of an arrestee who has recently been in the car. State v. Badgett, supra, 426. Today, however, the majority subscribes to this fiction and deprives our residents of the privacy that I feel is their constitutional right under our state constitution. “[S]earch and seizure law [becomes] uncontrollable when the rubric [is] adopted and the rationale discarded.” (Internal quotation marks omitted.) People v. Belton, 55 N.Y.2d 49, 53, 432 N.E.2d 745, 447 N.Y.S.2d 873 (1982).

The majority gives no practical or principled justification for taking this course, other than relying on the dictum in State v. Delossantos, 211 Conn. 258, 266, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). Surely, the majority cannot justify the Belton bright-line rule under our state constitution as a guide to police officers in the field. As Justice Brennan aptly noted in his dissent in Belton, this rule will create far more problems for the officers than it solves. New York v. Belton, supra, 469 (Brennan, J., dissenting). First, the rule does not indicate how long after the suspect’s arrest a search may be validly conducted. Id., 470. It does not say whether it matters if the police officer formed probable cause to arrest before or after the suspect left his or her car. Id. The majority in Belton “does not give the police any ‘bright-line’ answers to these questions. More important, because the Court’s new rule abandons the justifications underlying Chimel, it offers no guidance to the police officer seeking to work out these answers for himself [or herself]. ” (Emphasis in original.) Id.

“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.” . . . Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984).’ State v. Barton, 219 Conn. 529, 546, 594 A.2d 917 (1991). Justice Shea, when writing for an unanimous en banc court in State v. Marsala, 216 Conn. 150, 159-60, 579 A.2d 58 (1990), rejected the ‘good faith’ exception to the exclusionary rule adopted by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), and noted that ‘[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. State v. Dukes, 209 Conn. 98, 112, 547 A.2d 10 (1988); State v. Stoddard, 206 Conn. 157, 166, 537 A.2d 446 (1988); State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985).’ ” State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992).

Our state is rich in its history on the right to be free from unwarranted government intrusions. In the 1787 case of Frisbie v. Butler, 1 Kirby 213, 215 (1787), this court held that the general warrant authorizing the search of “all places, and arrest all persons, the complainant should suspect, [was] clearly illegal . . . .” See also Grumon v. Raymond, 1 Conn. 40, 43 (1814); Gray v. Davis, 27 Conn. 447, 450 (1858). Indeed, “[b]efore the fourth amendment’s search and seizure clause was made applicable to the states, much less the exclusionary rule, this court recognized the limits imposed on the government by the Connecticut search and seizure clause.” State v. Geisler, supra, 688. Within the context of this rich history in Connecticut, I find it troubling that the majority adopts under our state constitution the bright-line rule set forth in New York v. Belton, supra.

Other jurisdictions presented with the Belton issue under their state constitutions rejected the United States Supreme Court’s bright-line rule. See State v. Brooks, 452 So. 2d 149 (La. 1984) (following Chimel, the Supreme Court of Louisiana rejected Belton as the correct rule of police conduct under its state constitution); People v. Belton, supra (applying Chimel, the New York Court of Appeals upheld the warrantless search of the defendant’s car under the automobile exception to the warrant requirement, refusing to follow the Belton bright-line rule that, incident to a lawful arrest, the passenger compartment of a car can always be searched contemporaneously).

The practical aspects of adopting the bright-line rule of Belton, under our state constitution are frightening. This is especially so because the majority’s broad and sweeping language includes the right to search the car incident to a custodial arrest for a mere traffic violation. At least the court in State v. Dukes, supra, 125, left the question open when it stated that “[t]here is no need for us in this case to decide what authority the officer would have under our constitution to search the vehicle for contraband when the only provocation for that was a traffic violation.”

Is the majority giving a green light to police officers to invade a person’s privacy by allowing them to stop the person’s car for a mere traffic violation, make a custodial arrest of the driver and then search the car? Now, we all know that probably would not happen to the president of a “Fortune 500” company if he or she was stopped for speeding. But what about a minority member of our society who happens to be operating his or her car in Father Panik Village? Or the seedy looking kid with long hair who happens to be driving in an affluent neighborhood? “The Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness/or all of our citizens.” (Emphasis added.) State v. Dukes, supra, 115. By adopting this bright-line rule under our state constitution, the majority today adds to the perception that there is no such thing as “justice for all.”

Accordingly, I dissent.

       General Statutes § 21a-278 (b) provides: “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 narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       General Statutes § 53a-172 (a) provides: “Any person who, while charged with the commission of a felony and while out on bail or released under other procedure of law, wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear, is guilty of failure to appear in the first degree.”

       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.” The United States Supreme Court has held that the fourth amendment’s prohibition against the use of evidence obtained as the result of an illegal search is applicable to the states through the fourteenth amendment to the United States constitution. See Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, reh. denied, 368 U.S. 871, 82 S. Ct. 23, 7 L. Ed. 2d 72 (1961).

       Article first, § 7, of the Connecticut constitution 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.”

       The state argues, alternatively, that if this court concludes that the search of the defendant’s vehicle was not valid as a search incident to arrest pursuant to State v. Badgett, 200 Conn. 412, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), and State v. Delossantos, 211 Conn. 258, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989), the search should nonetheless be upheld under a “community caretaking function” exception to the warrant requirement. See Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973); State v. Tully, 166 Conn. 126, 136, 348 A.2d 603 (1974). In essence, the state contends that under the circumstances of this case, it was reasonable for Vivo to enter the defendant’s car in order to drive it from the scene. Therefore, the evidence that the defendant sought to suppress, which was in “plain view” when Vivo opened the car door, was properly admitted by the trial court. See Coolidge v. New Hampshire, 403 U.S. 443, 465-71, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971). As a second alternative argument, the state claims that the evidence would inevitably have been discovered in an inventory search pursuant to established police procedures and, therefore, was properly admitted by the trial court. See, e.g., State v. Roseboro, 221 Conn. 430, 445-46, 604 A.2d 1286 (1992). Because we conclude that Vivo’s search of the defendant’s automobile was proper as a search incident to arrest under State v. Badgett, supra, and State v. Delossantos, supra, we do not address these alternative claims of the state.

       In State v. Badgett, 200 Conn. 412, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), the defendant was being driven away from the scene in a police cruiser when the search of his car yielded the incriminating evidence. We held that “the right of a police officer to search the vehicle ceases the instant the arrestee departs the scene because the arrestee's removal forecloses any possibility that he could reach for an article within the vehicle.” Id., 428. The defendant asserts that Badgett “shows this court’s unwillingness to follow the dicta or extend the holding of [New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981)], authorizing, without limitation, all vehicle searches incident to a lawful arrest under all circumstances.” While this court in Badgett “refuse[d] . . . to extend the‘fiction’that the passenger compartment is always within reach of the arrestee ... to circumstances . . . where the defendant is no longer at the scene of the arrest when the warrantless search was undertaken”; (emphasis in original) State v. Badgett, supra, 427; implicit in that holding was the conclusion that a search undertaken while the defendant remains at the scene is a valid search incident to arrest. See id., 428.

         It is difficult for me to believe that the majority in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), would apply this bright-line test to the facts of this case. The United States Supreme Court stressed a “contemporaneous” search, which would imply a situation where the police officer had to make an immediate assessment of the danger because the accused was so near the car that it would be dangerous not to search. “During the thirty to forty-five minutes that elapsed between the arrest and the warrantless search, the Belton Court’s fear of forcing officers to make split second legal decisions during the course of an arrest evaporated and took with it the right of the officers to enter the vehicle under the guise of a search incident to [a lawful] arrest. Simply because the officers had the right to enter the vehicle during or immediately after the arrest, a continuing right was not established to enter the vehicle without a warrant.” United States v. Vasey, 834 F.2d 782, 787 (9th Cir. 1987).

       Interestingly, the court in Frisbie v. Butler, 1 Kirby 213 (1787), first raised the question of the remedy pertaining to the criminal proceedings. The court queried: “[Y]et, how far this [unlawful search] vitiates the proceedings upon the arraignment, may be a question, which is not necessary now to determine . . . .” Id., 215. Subsequently, in State v. Dukes, 209 Conn. 98, 110, 547 A.2d 10 (1988), this court recognized the exclusionary rule and expressly overruled a prior Connecticut case; State v. Reynolds, 101 Conn. 224, 237, 125 A. 636 (1924); that held to the contrary. In Dukes, we concluded that “the exclusionary rule is now widely recognized as an effective remedy for enforcement of the constitutional protection against unconstitutional searches and seizures.” State v. Dukes, supra.

       Moreover, the dangers of the rule were underscored when Justice Brennan asked the rhetorical question: “[W]hy is the rule . . . necessarily limited to searches of cars? What if a suspect is seen walking out of a house where the police, peering in from outside, had formed probable cause to believe a crime was being committed? Could the police then arrest that suspect and enter the house to conduct a search incident to arrest?” (Emphasis in original.) New York v. Belton, 453 U.S. 454, 470, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) (Brennan, J., dissenting).

       Cf., People v. Marsh, 20 N.Y.2d 98, 101, 228 N.E.2d 783, 281 N.Y.S.2d 789 (1967) (holding that a motorist stopped for a traffic infraction may not be searched unless, when the car is stopped, there exists reasonable grounds for believing that the driver is guilty of a crime, as distinct from a traffic offense).


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. James Esposito
    (14012)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.

      Argued April 30
    decision released August 4, 1992

      Richard Emanuel, assistant public defender, with whom, on the brief, was G. Douglas Nash, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom were James G. Clark, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Callahan, J.

After a jury trial, the defendant, James Esposito, was convicted of the crimes of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and burglary in the first degree in violation of General Statutes § 53a-101 (a) (1). He was sentenced to an effective term of thirty years imprisonment. The defendant appeals from that judgment of conviction, claiming entitlement to a new trial because the trial court: (1) improperly denied his motions during jury selection to excuse certain venirepersons for cause; (2) improperly allowed the state to exercise some of its peremptory challenges in a racially discriminatory manner; and (3) improperly admitted certain evidence and excluded other evidence. We agree with the first of these claims and grant the requested relief. It is therefore unnecessary for us to consider the second claim. We discuss the third claim involving certain evidentiary rulings insofar as the same evidentiary issues are likely to arise at retrial. State v. Rinaldi, 220 Conn. 345, 359-60, 599 A.2d 1 (1991).

At trial the state presented evidence tending to establish the following. On September 5, 1988, at approximately 11:30 p.m., the defendant and another man, Brian Greco, entered the Hamden home of Robert and Joyce Bessinger, where the Bessingers, their young daughter and a guest, Robert Yelardi, were present. While Greco accompanied Robert Bessinger, at gunpoint, upstairs to the room where the daughter was sleeping and where there were two safes containing valuables, downstairs the defendant stood guard over Joyce Bessinger and Velardi, whom Greco had ordered to lie face down on the floor. The defendant told them to remain still or he would “blow [their] head[s] off.” Meanwhile, Greco removed some items from the safes and then, in the course of a struggle, shot Robert Bessinger three times, inflicting wounds that proved fatal. The defendant and Greco then fled the scene together.

The defendant offered contrary testimony at trial. He admitted being with Greco on the night in question, but stated that he had entered the Bessinger home after Greco and that he had done so not to aid Greco in the commission of the crimes but rather to try to rescue Robert Bessinger, a friend of his family, once he had realized what Greco was doing. The defendant testified that he had initially denied being at the crime scene when questioned by the police because Greco had threatened to kill him and to “get” his family if he told anyone about the crimes.

I

The defendant first claims that, during jury selection, the trial court improperly denied his motions to excuse four venirepersons for cause. This claim is properly before us because the defendant exhausted his peremptory challenges before jury selection had been completed. See State v. Vitale, 190 Conn. 219, 224-25, 460 A.2d 961 (1983); State v. Hoyt, 47 Conn. 518, 529 (1880).

Some background information is necessary for the proper analysis of this claim. On the first day of jury selection, the defendant challenged for cause a prospective juror named Norman Wium. The court overruled the challenge, and the defendant removed Wium by exercising his second peremptory challenge. On the fourth day of the voir dire, the defendant challenged another juror, Lisa Zarny, for cause. When that challenge for cause was overruled he exercised his eleventh peremptory challenge to remove her. Four days later, after the twelfth juror had been accepted and as the alternates were being selected, the defendant challenged another venireperson, William Demmons, for cause. When the court overruled that challenge, the defendant exercised his final peremptory challenge to excuse Demmons. After the first alternate juror had been accepted, the defendant challenged another prospective juror, Richard Artkop, for cause. The trial court overruled the challenge for cause and denied the defendant’s subsequent motion for an extra peremptory challenge. Consequently, Artkop become the second alternate juror. Jury selection was completed when a third alternate juror was chosen.

Before the trial began, the trial court excused one of the twelve jurors and proposed replacing that juror with the first alternate juror. Defense counsel objected to that method, stating, “I want it done in the way an alternate juror is always chosen, and that is throw [their names] in a hat, pick one out.” When the prosecutor stated that he had no objection to that procedure, the court directed the clerk to select one alternate randomly. Artkop, the second alternate, was selected and then became a member of the jury that convicted the defendant.

The defendant argues that, although only one of the four persons challenged for cause actually sat on the jury that convicted him, he is entitled to a new trial if any one of the four should have been excused for cause because under such circumstances, the defendant would have had a peremptory challenge remaining to excuse Artkop, who was a juror in the case. The state does not dispute that general proposition, but argues that, in this case, the defendant waived this claim with respect to all four individuals because he could have avoided having Artkop empaneled on the jury if he had acquiesced in the trial court’s original plan to empanel the first alternate juror, whom both parties had accepted without controversy. The state contends that, by insisting that the replacement juror be selected randomly, resulting in the selection of Artkop for the jury, the defendant “manufactured” this claim and induced the very prejudice of which he now complains on appeal. See State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987) (“Action induced by [the defendant] cannot ordinarily be a ground of error.”). We do not agree that the defendant’s conduct constitutes a waiver of this claim.

General Statutes § 54-82h (c) provides in part: “If, at any time, any juror shall, for any reason, become unable to further perform his duty, the court may excuse him and, if any juror is so excused or dies, the court may order that an alternate juror who is designated by lot to be drawn by the clerk shall become a part of the regular panel and the trial shall then proceed as though such juror had been a member of the regular panel from the time when it was begun.” (Emphasis added.) Although defense counsel did not specifically cite § 54-82h (c) when he requested that the replacement juror be selected by lot, the statute suggests, at least by analogy, that such a procedure be followed if the court has decided to empanel an alternate juror after the completion of jury selection. Consequently, we agree with the defendant that under such circumstances he should not be faulted for insisting on a procedure that is arguably statutorily required. Indeed, had the trial court not followed the prescribed statutory procedure, the defendant might well have advanced an appellate claim on that basis. See State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981) (“a trial court’s failure to follow the mandatory provisions of a statute prescribing trial procedures is plain error”). Accordingly, we turn to the merits of the defendant’s argument.

We focus first on the defendant’s challenge to remove Lisa Zarny for cause because we find the claim with respect to Zarny to be dispositive. When first brought in for voir dire questioning, Zarny responded negatively when asked by the court whether she had thought of anything “bearing on [her] ability to be a fair juror in this case.” In the course of defense counsel’s questioning of her, Zarny stated that she lived on the same street where the Bessinger home is located and that she had lived there for approximately one and one-half years. She explained that the street is long and “L” shaped and that, because her home is toward one end of the “L,” she knew the neighbors on that part of the street. When asked whether the names of any prospective witnesses were familiar to her, she replied affirmatively. The court then interjected to ask Zarny whether her proximity to the crime scene or any discussions she had had about the crime would compromise her ability to be a fair juror in the case. She said no.

Defense questioning then resumed. Zarny recalled reading several newspaper accounts about the incident at the Bessinger home and about the defendant’s arrest in connection with it. She stated that, since she had moved to the neighborhood only a short time before the crimes were committed, “it was a shock” to her when she heard about the incident for the first time. Defense counsel then said, “And what is obviously going through my mind is you live on the street where the murder took place, and it sounds on the face of it that you would have a peculiar interest in this case because of that. Is that a fair statement?” (Emphasis added.) Zarny replied, “That’s a fair statement.” (Emphasis added.) Upon further questioning, Zarny stated that she had discussed the case with her husband and that together they had formed an opinion that the murder was drug-related. When asked whether she had formed any opinion about the defendant’s involvement in the murder she responded that she had not. In response to defense counsel’s inquiry about why Zarny had not mentioned her proximity to the crime scene and familiarity with the case when asked by the court whether anything might bear on her ability to sit as a juror, Zarny responded that she had assumed that her address would be noticed on the juror questionnaire form she had previously filled out.

Thereafter, the following colloquy occurred:

“[Defense Counsel:] Do you think it would put you in an awkward position going back to . . . [your street] if you found [the defendant] not guilty and therefore left the crime unsolved to that extent?
“[Lisa Zarny:] Yes.
“Q. It would put you in an awkward position?
“A. Yes. . . .
“Q. Since you think [that acquitting the defendant would put you in an awkward position], don’t you think you couldn’t be totally objective in sitting on this case ... in viewing his guilt or innocence?
“A. In terms of finding someone guilty or not guilty, would depend on the evidence, yes I feel uncomfortable with [the defendant] or the crime he committed in my neighborhood, yes. ” (Emphasis added.) After this exchange and at several other junctures during the voir dire questioning, Zarny assured defense counsel that she could, nevertheless, be completely fair and objective as a juror in the case.

After the state had finished its questioning of Zarny, defense counsel moved that she be removed for cause. In support of his motion, he reminded the court that Zarny lived on the same street where the murder had taken place, that several of her neighbors would be testifying as witnesses in the case, that she was shocked by the crime, that she felt it would put her in an awkward position if she were to acquit the defendant and that Zarny was not forthcoming about any of these facts when asked at the beginning of questioning whether she could think of anything that might compromise her ability to be a fair juror in the case. The state took no position on the challenge for cause. Relying on Zarny’s assurances that she could still be impartial, the trial court denied the motion for her removal. Defense counsel excepted and excused her with a peremptory challenge.

We begin our analysis by setting forth the sources in our law of the defendant’s right to an impartial jury and his correlative right to have a biased venireperson removed for cause. Both the federal and state constitutions guarantee to an accused the right to a public trial by an impartial jury. U.S. Const., amends. VI and XIV; Conn. Const., art. I, § 8. Furthermore, General Statutes § 54-82f provides in relevant part: “If the judge before whom the [voir dire] examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. . . .” Practice Book § 848 contains language virtually identical to that of the statute, and Practice Book § 843 similarly provides that “[a] person shall be disqualified to serve as a juror if such person is found by the judicial authority to exhibit any quality which will impair his capacity to serve as a juror . . . ."

Although the defendant bases his claim on statutory and Practice Book provisions, reference to common law principles regarding challenges for cause is instructive. At common law, “a challenge [for cause] to an individual juror for bias or prejudice can be either a principal challenge or a challenge to the favor. McCarten v. Connecticut Co., [103 Conn. 537, 542, 131 A. 505 (1925)]. A principal challenge may arise when the connection between the prospective juror and either party is of so close a nature that, when the facts concerning the relationship or interest are proven or when the prospective juror ‘has formed or expressed an opinion on the question at issue,’ the disqualification is conclusively presumed. Id.; see, e.g., State v. Kokoszka, 123 Conn. 161, 164, 193 A. 210 (1937). A challenge to the favor, on the other hand, is one where the connection, being more remote, tends to show bias but does not create a conclusive presumption of bias. McCarten v. Connecticut Co., supra, 542-43.” Johnson v. New Britain General Hospital, 203 Conn. 570, 581-82, 525 A.2d 1319 (1987).

In this case, the defendant’s claim with respect to Zarny is akin to a recognized ground for a principal challenge at common law, namely, “an interest in the outcome of the suit, either personal or as a member of a corporation.” McCarten v. Connecticut Co., supra, 542. We must, therefore, examine the record of the voir dire proceedings to determine whether it discloses such a personal interest on the part of Zarny and thereby raises a conclusive presumption of bias. In reviewing this claim, we recognize that “[t]he trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion.” State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987). “In exercising this discretion the trial court must zealously protect the rights of the accused.” Id., 89. We conclude that the trial court abused its discretion in this case when it overruled defense counsel’s challenge to remove Zarny for cause.

Zarny admitted that acquitting the defendant would put her in an awkward position because she would have to return to her neighborhood with the crimes still unresolved. This admission, made twice by Zarny, reveals that she had a personal stake in the outcome of the case and that she was, quite possibly, disinclined to find the defendant not guilty because of the discomfort such a result might have created for her in her neighborhood, where the crimes were committed. Indeed, Zarny agreed with defense counsel that she had a “peculiar interest” in the case and further admitted that she was “uncomfortable” with the defendant “or [with] the crime he committed in my neighborhood.”

In overruling the challenge for cause, the trial court relied on Zarny’s assurances that she could be evenhanded in spite of her other admissions indicating a personal interest. Although we have stated that “[t]he determination as to a potential juror’s impartiality, in which demeanor plays an important part, is particularly within the province of the trial judge”; Johnson v. New Britain General Hospital, supra, 584; there are limits to the deference we will afford such a judgment on appeal. See State v. Hammond, 221 Conn. 264, 270 n.2, 604 A.2d 793 (1992). As we noted recently in a related context, “[a] venireperson’s assessment of his own prejudices may be untrustworthy for a variety of reasons. For instance, he may be lying in an effort to be chosen for the jury, embarrassed to reveal unsavory truths publicly or simply unaware of the existence of bias.” State v. Smith, 222 Conn. 1, 14-15, 608 A.2d 63 (1992). Because of these practical realities, a prospective juror’s assessment of his or her own partiality must be carefully scrutinized on appeal and considered in the context in which it was uttered.

There are circumstances in which a trial court can reasonably credit assurances of fairness by a prospective juror and therefore properly conclude that the venireperson will be able to set aside any potential bias or prejudice to adjudge dispassionately the accused’s guilt or innocence. For example, in Johnson v. New Britain General Hospital, supra, this court upheld the trial court’s overruling of a challenge for cause in a medical malpractice action. The challenged juror was a dentist who had expressed general antagonism toward medical malpractice suits and large jury verdicts. In affirming the judgment, we emphasized that “the juror did make clear that this antagonism was a generalized opinion held in the abstract and that it would not enter into his consideration of this specific case” and that he “never indicated any antagonism toward this particular plaintiff.” Id., 584. Zarny, in contrast, indicated not only a personal interest in the outcome of the prosecution but also a discomfort with the defendant himself or, as she put it, with “the crime he committed in my neighborhood.” These statements distinguish the instant case from Johnson because they demonstrate that Zarny’s bias was particularized toward the defendant and not simply a general preexisting view.

The Alabama Court of Criminal Appeals upheld a decision overruling the defendant’s challenge for cause to a juror who worked at the same power company that employed the victim. Glenn v. State, 395 So. 2d 102 (Ala. Crim. App. 1980), cert. denied, 395 So. 2d 110 (Ala. 1981). The court specifically relied on the fact that, “[u]pon questioning by the trial court as to whether his employment with the [company] would cause him embarrassment, or place him in an awkward position . . . the juror replied in the negative.” (Emphasis added.) Id., 106-107. Conversely, the Supreme Court of Louisiana upheld the removal of a venireperson who had indicated during voir dire that he frequented the bar where the crime was committed, that he knew many of the people who would be testifying at trial and that he feared repercussions if he were to return a verdict of guilty. State v. George, 346 So. 2d 694, 698 (La. 1977). These factually similar cases from other jurisdictions provide further support for our conclusion that in this instance the challenge for cause should have been granted.

Having concluded that Zarny should have been removed by the trial court for cause, we must now consider the impact the court’s ruling had on the defendant at trial. As we noted previously, Zarny did not ultimately sit as a juror in the case because the defendant exercised a peremptory challenge to remove her. Artkop, however, did sit on the jury because the defendant, who had by then exhausted his peremptory challenges, was unable to remove him. That the defendant would have removed Artkop can hardly be doubted since he challenged him for cause and moved the court for an extra peremptory challenge in an attempt to do so. If Zarny had been properly removed by the court for cause, the defendant would have had one peremptory challenge remaining to remove Artkop from the jury-

The Connecticut constitution guarantees a criminal defendant the right to exercise peremptory challenges in the selection of his jury. Conn. Const., art. I, § 19, as amended by art. IV of the amendments to the constitution; see also General Statutes §§ 54-82g and 54-82h. We conclude that the trial court’s action abridged this constitutional and statutory right of the defendant. Accordingly, we agree with numerous other courts throughout the nation that “it is reversible error for a trial court to force an accused to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.” Hill v. State, 477 So. 2d 553, 556 (Fla. 1985); see also Wasko v. Frankel, 116 Ariz. 288, 290, 569 P.2d 230 (1977); Jones v. Cloud, 119 Ga. App. 697, 706-708, 168 S.E.2d 598 (1969); State v. Sugar, 408 So. 2d 1329, 1331 (La. 1982); State v. Ternes, 259 N.W.2d 296, 297 (N.D. 1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1524, 55 L. Ed. 2d 540 (1978); Commonwealth v. Jones, 477 Pa. 164, 167, 383 A.2d 874 (1978); State v. McQuesten, 151 Vt. 267, 269, 559 A.2d 685 (1989); Martin v. Commonwealth, 221 Va. 436, 444-45, 271 S.E.2d 123 (1980). The defendant is, therefore, entitled to a new trial.

II

The first evidentiary issue likely to arise at retrial involves the admissibility of an out-of-court statement of Greco introduced through the testimony of a Ham-den police officer. At trial, the court permitted the state to elicit from the officer Greco’s initial statement to the police regarding his whereabouts on the night the crimes were committed. According to the officer’s testimony, Greco told the police essentially what the defendant had told the police when he was initially questioned about his whereabouts, that he was with the defendant at a bar for most of the evening, that the two had left and driven to Newport, Rhode Island, and that they had later spent the night in a hotel together. Both statements omitted any reference to either man having been in Hamden at the Bessinger home that night. The state offered the evidence, claiming that the fact that the men had given substantially similar false exculpatory statements when questioned by the police tended to prove the defendant’s participation in the crimes. After the admission of Greco’s out-of-court statement, over the defendant’s objection, the trial court instructed the jury that the statement was not offered for its substantive truth but rather to show the men’s joint involvement in the crimes.

The defendant first claims that Greco’s out-of-court statement should have been excluded as hearsay because it was, in actuality, offered for its substantive truth since it inferentially asserted the proposition that Greco and the defendant committed the crimes and hence needed to concoct an alibi to conceal their involvement. See Lyle v. Koehler, 720 F.2d 426, 429-33 (6th Cir. 1983) (adopting broad view of what constitutes hearsay as discussed by E. Morgan in “Hearsay Dangers and the Application of the Hearsay Concept,” 62 Harv. L. Rev. 177 [1948]). In Connecticut, an out-of-court statement offered to prove the truth of the matter asserted is hearsay. Murray v. Supreme Lodge, N.E.O.P., 74 Conn. 715, 718, 52 A. 722 (1902). If such a statement is offered for a purpose other than establishing the truth of the matters contained in the statement, it is not hearsay. State v. Miller, 154 Conn. 622, 629, 228 A.2d 136 (1967).

In this case, the statement was offered to show that Greco gave a false alibi that was substantially similar to that given by the defendant. It was not offered to prove that Greco and the defendant actually were at a bar together or that they went to Newport or that they later spent the night in a hotel. We decline to adopt the broad view of hearsay taken by the majority in Lyle v. Koehler, supra, and agree, rather, with the dissenter in that case that “the ‘matter asserted’ [is] the matter asserted by the writing or speech, not the matter asserted by the proponent of the evidence.” Id., 436-37 (Porter, J., dissenting). Accordingly, if, on retrial, the state offers Greco’s out-of-court statement to prove that it was made and not for the truth of the matters asserted therein, it should not be excluded as hearsay.

To be admissible, Greco’s out-of-court statement must also be relevant, both in the sense that it must relate to a material issue in the case and that it must have a logical tendency to aid the trier in the determination of a material issue. State v. Marra, 222 Conn. 506, 521, 610 A.2d 1113 (1992); State v. Jeffrey, 220 Conn. 698, 704, 709, 601 A.2d 993 (1991). We believe that it meets both components of the test for relevancy. First, it was offered to prove that the defendant actively participated in the crimes contrary to his testimony that he had been a mere onlooker. The level of the defendant’s involvement was clearly a material issue in the case. As to the second component, logical relevancy, from the fact that Greco told the police the same false exculpatory story as the defendant, the jury could reasonably infer that the two had concocted a false alibi and agreed to adhere to it if questioned by the police. Although the jury could also reasonably infer that the men’s similar alibis were nothing more than a coincidence, that possibility does not make Greco’s statement irrelevant. “Evidence need not be conclusive to be relevant . . . and [t]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible.” (Internal quotation marks omitted.) State v. Joly, 219 Conn. 234, 252, 593 A.2d 96 (1991). If offered on retrial for the same purpose for which it was offered during the first trial, evidence of Greco’s statement would be relevant as tending to support, at least to some degree, the conclusion that the defendant colluded with Greco to commit the crimes. State v. Rinaldi, 220 Conn. 345, 353, 599 A.2d 1 (1991).

The final basis upon which the defendant argues that Greco’s statement should be excluded is that its admission would deprive him of his right of confrontation under the federal and state constitutions. See U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8. If the state again introduces Greco’s statement for the nonhearsay purpose of simply proving that it was made, the defendant’s right of confrontation will not be implicated. Under such circumstances, since the jury would not be asked to credit Greco’s statement for its truth, Greco’s credibility would not be in issue, and, therefore, the defendant would have no right to cross-examine him on the contents of his statement. Anderson v. United States, 417 U.S. 211, 220, 94 S. Ct. 2253, 41 L. Ed. 2d 20 (1974). If the defendant should wish to dispute that Greco made the statement, he should be afforded ample opportunity to cross-examine the testifying police officer regarding the officer’s credibility in asserting that Greco had made such a statement. Admission of Greco’s out-of-court statement would not, therefore, implicate the defendant’s constitutional right to confront the witnesses against him.

III

The defendant next claims that, under the rule announced in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), the state should be precluded from introducing testimony referring to his silence before he was arrested or given Miranda warnings. At trial, a police inspector testified that, on September 16, 1988, ten days after the commission of the crimes, the defendant had voluntarily spoken with members of the Hamden police after he had been advised that he was not under arrest, that he was free to leave the police station at any time and that he did not have to answer any questions put to him. He was not then advised of his Miranda rights. The inspector testified that the defendant indicated that he had been with Greco on the night in question and that he had done various things with Greco that night, but the statement omitted any reference to their having gone to the Bessinger home in Hamden. The defendant then refused to allow the police to take a formal statement from him as to what he had just said, but told the police that he would return to provide such a statement. He never returned to the police station to give a statement before he was arrested on September 20, 1988.

The defendant later took the stand and testified that he and Greco had been at the Bessinger home on September 6, 1988, that he had not participated with Greco in committing the crimes and that Greco had forced him to leave the scene with him and to stay overnight in the hotel. He also explained that he had not mentioned going to the Bessinger home when he first spoke with the police because Greco had threatened to kill him if he told the authorities about the incident. During cross-examination of the defendant, the state asked, referring to the defendant’s assertion that Greco had held him in the hotel against his will, “And did you ever give a thought to the fact that it might be useful to be able to recount this at some point to the police?” The state also referred to the defendant’s failure to mention his presence at the Bessinger home when he gave his first informal statement to the police.

In Doyle v. Ohio, supra, the United States Supreme Court held that the due process clause of the federal constitution prohibits the government’s use of a defendant’s postarrest silence to impeach his credibility because, once an accused is given Miranda warnings, which include the right to remain silent, he may not be penalized for exercising that right. In State v. Plourde, 208 Conn. 455, 466-67, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989), this court extended the Doyle prohibition to the use of a defendant’s silence after he had received Miranda warnings but before he was actually arrested. In reaching that conclusion, we relied upon language from a United States Supreme Court case decided after Doyle, in which the court explained: “The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony.” Wainwright v. Greenfield, 474 U.S. 284, 292, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986). Because it is the Miranda warning itself that carries with it the promise of protection, the United States Supreme Court has concluded that the prosecution’s use of silence prior to the receipt of Miranda warnings does not violate due process. Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982) (postarrest silence); Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980) (prearrest silence).

According to this precedent, if, on retrial, the prosecution should make mention of the defendant’s initial failure to tell the police that he was at the Bessinger home on the night the crimes were committed or of his subsequent failure to return to the police station to give a recorded statement before he was advised of his Miranda rights, the defendant’s right to due process of law would not be abridged. The state may not, however, impeach the defendant’s credibility by using his silence following his receipt of Miranda warnings. Since the state’s other cross-examination question-why the defendant did not tell the police “at some point” that he had gone with Greco against his will— was not uttered in the context of questions addressed to the defendant’s silence before he was arrested, it could reasonably have been understood to encompass the defendant’s silence both before and after his arrest. Compare State v. Jeffrey, supra, 721 (context indicated that state’s ambiguous question referred to the defendant’s prearrest silence). Accordingly, such a question should not be allowed on retrial unless its context clearly indicates that it refers only to the defendant’s prearrest silence.

IV

The next evidentiary issue likely to arise at retrial is whether the defendant should be allowed to present evidence of Greco’s conviction and fifty year sentence. At trial, the defendant offered the evidence on two different theories of admissibility: first, that it should be admitted to prove that someone else had already been convicted of murdering Robert Bessinger; and second, that it should be admitted as tending to support the defendant’s claim that, although he lied to the police initially because he was afraid Greco would kill him, he was testifying truthfully at trial because he no longer had to fear Greco’s threats since Greco was incarcerated and serving a fifty year sentence. The trial court rejected both grounds of admissibility. We conclude that, at the new trial, the evidence should not be admitted for the first purpose for which it was offered, but that it would be admissible under the second theory if the defendant’s other testimony advances the theory that Greco’s long incarceration enboldened him to testify truthfully.

If offered for the first purpose argued by defense counsel at trial, the conviction and sentence would clearly be inadmissible as irrelevant. As we noted previously in conjunction with another evidentiary issue, evidence is relevant if it has a logical tendency to aid the trier in the determination of a material issue. State v. Marra, supra; State v. Jeffrey, supra, 704, 709. The fact that Greco was convicted and sentenced in connection with the crimes committed at the Bessinger home does not tend to establish anything about whether the defendant was guilty of the crimes with which he was charged, relative to the same incident. That another man may have been punished for the crimes sheds no light on whether the defendant participated in the commission of the crimes. Consequently, Greco’s conviction and fifty year sentence should be excluded as irrelevant if offered at the new trial to show that another person had been convicted in connection with the incident at the Bessinger home.

If, however, the defendant should offer evidence that he knew of Greco’s conviction and fifty year sentence and that he was now, therefore, able to testify truthfully about the crimes since he believed that Greco, while in prison, would not be able to carry out death threats against him, such evidence would be admissible. It would tend to establish a material issue in the case, namely, that the defendant’s trial testimony is truthful despite his earlier inconsistent statement to the police. We emphasize that, although such evidence might not be credited by the jury or, if credited, might not conclusively establish the defendant’s veracity, it would, nevertheless, be admissible as relevant evidence since it tends to establish, even if only to a slight degree, a material proposition in the case. State v. Rinaldi, supra.

V

The final evidentiary issue likely to arise at retrial involves the admissibility of a letter written by an assistant state’s attorney and sent to defense counsel. The letter advised defense counsel that the state’s attorneys’ office for the judicial district of New Haven had learned that Greco had approached another inmate in jail to request that he arrange to have the defendant “hit” so that he would not divulge any information about the crimes at the Bessinger home. Upon receiving the letter, defense counsel forwarded a copy of it to the defendant. The defendant offered the letter at trial for two purposes: first, as relevant to the defendant’s state of mind in that his knowledge of the contents of the letter contributed to the fear that he harbored for Greco; and, second, as independent evidence that Greco was attempting to have the defendant killed. The trial court excluded the evidence as irrelevant.

The letter would be admissible if the defendant were to offer it upon retrial for the first purpose, that is, the limited purpose of proving that his knowledge of the contents of the letter contributed to his fear of Greco and kept him from coming forth with the truth about the crimes. If the defendant again acknowledges the inconsistency between his initial statement to the police and his trial testimony and attempts to explain that he failed to tell the truth because he was afraid of Greco’s threats, the letter should be admitted as tending to establish that the defendant did not come forth with the truth because he was afraid that Greco would kill him. State v. Rinaldi, supra. If offered for this purpose, the letter should be admitted into evidence, and the jury should be instructed as to its proper use. State v. Tryon, 145 Conn. 304, 309, 142 A.2d 54 (1958).

If offered at retrial for the second purpose, to prove that Greco had put a “hit” out on the defendant, the letter should be excluded as hearsay since it would be offered to prove the truth of its contents. As we noted previously, an out-of-court statement offered to prove the truth of the matter asserted is properly excluded as hearsay. Murray v. Supreme Lodge, N.E.O.P., supra. Although there are numerous exceptions to the hearsay rule, the defendant did not argue either at trial or on appeal that an exception to the hearsay rule would justify admission of the letter for its substantive truth. Accordingly, we shall not embark on an exegesis of whether the letter might be admissible on retrial under an exception to the hearsay rule.

The judgment is reversed, and the case is remanded for a new trial consistent with this opinion.

In this opinion the other justices concurred.

       General Statutes § 53a-54c provides: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
      General Statutes § 53a-134 (a) (2) provides: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... is armed with a deadly weapon.”
      General Statutes § 53a-101 (a) (1) provides: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument.”

       Prior to the defendant’s trial, Greco pleaded guilty to the crimes of felony murder, robbery in the first degree and burglary in the first degree pursuant to the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), and received a total effective sentence of fifty years imprisonment. Thereafter, he attempted, unsuccessfully, to withdraw his guilty plea. See State v. Greco, 216 Conn. 282, 579 A.2d 84 (1990).

       The state and the defendant each had eighteen peremptory challenges in this case. See General Statutes § 54-82h (a).

       The state conceded at oral argument that, once a defendant exhausts his peremptory challenges, he is entitled to raise a claim on appeal with respect to venirepersons whom he had sought to remove for cause before as well as after he exhausted the peremptory challenges.

       At oral argument, the state initially contended that, because General Statutes § 54-82h (c) contains the word “may,” it is directory rather than mandatory and that the trial court was, therefore, not required to follow the random selection procedure. It later retreated from that position, conceding that, if a party were to insist on the procedure set forth in the statute, as the defendant did in this case, the court would be bound to follow that procedure.
      Although the state did not pursue the argument further, we note that in the statute “may” is used in conjunction with the trial court’s decision whether to empanel an alternate juror in the first place and not in conjunction with the method to be used in selecting the replacement juror once the court has decided to do so: “[T]he court may order that an alternate juror who is designated by lot to be drawn by the clerk shall become a part of the regular panel. . . .” (Emphasis added.) General Statutes § 54-82h (c).

       The state has not argued that the statute is invalid because it unconstitutionally infringes on the court’s power to establish its own procedural rules. See State v. Clemente, 166 Conn. 501, 507, 353 A.2d 723 (1974); Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968).

       Grounds for a principal challenge include “relationship to either party to the suit, a former service as arbitrator on either side, an interest in the outcome of the suit, either personal or as a member of a corporation, or the relation of master or servant, steward, attorney, landlord or tenant to either party, or that the prospective juror has conversed with either party upon the merits of the case, or has formed or expressed an opinion on the question at issue.” McCarten v. Connecticut Co., 103 Conn. 537, 542, 131 A. 505 (1925).

       Artkop had an extensive law enforcement background, had testified in the same courthouse where this case was tried for the same state’s attorneys’ office that prosecuted this case and had served as court liaison officer for geographical area number seven, which included the Hamden police department.

       There were some differences between Greco’s statement and the defendant’s statement. For example, Greco said the two had been in an unnamed bar in Milford and that they had left the bar at 10:30 or 11 p.m. The defendant stated that he had been at the Orange Blossom Cafe in Orange and had left at 1 a.m. Greco also stated that he and the defendant had spent the night in a hotel in Niantic, but the defendant said the hotel where they had stayed was in Newport. Although the defendant argued at trial that Greco’s statement should be excluded because it was not sufficiently similar to the defendant’s initial statement, he has not pressed that claim on appeal.

       The jury could also reasonably infer that the defendant had given the false alibi out of fear that Greco would kill him, an inference supportive of the defendant’s version of the facts.

       The defendant concedes that, because Greco’s statement, on its face, did not inculpate the defendant, the holding of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), does not apply. In Bruton, the United States Supreme Court held that the defendant’s rights under the confrontation clause of the sixth amendment to the United States constitution were violated when the trial court admitted into evidence at a joint trial the confession of a nontestifying codefendant, which also incriminated the defendant.

       The text of the letter follows:
      “May 8, 1989
      Hugh F. Keefe, Esquire
      P.O. Box 1612
      New Haven, CT 06506
      RE: State v. James Esposito
      Dear Hugh,
      Please be advised that this office was informed of a jailhouse incident in which Brian Greco approached an inmate at the jail and requested that that inmate arrange to have James Esposito ‘hit,’ expressing concern that Mr. Esposito might divulge information pertaining to criminal involvement of the two, i.e., Esposito and Greco, additional [sic] to the Bessinger homicide.
      The inmate informed the police so that, needless to say, he has no intention of carrying out the request, but I feel that this is information you should be aware of.
      Very truly yours,
      /s/ Roland D. Fasano
      Assistant State’s Attorney”


author: Covello, J. Berdon, J.,

text:
    Edward Morin v. Bell Court Condominium Association, Inc.
    (14360)
    Peters, C. J., Callahan, Covello, Borden and Berdon, Js.

      Argued April 2
    decision released August 4, 1992

      John A. Blazi, with whom was Robert S. Cullen, for the appellants (plaintiff and intervening plaintiff).

      Ralph G. Eddy, with whom, on the brief, was Robert A. Byers, for the appellee (defendant).
   Covello, J.

This is an action to recover damages for personal injuries sustained as the resült of the defendant condominium association’s alleged negligence in the maintenance of a stairway in one of its buildings. The issue presented is whether the evidence at trial was sufficient as a matter of law to support the conclusion that the defendant had constructive notice of the plaintiff’s presence at the time and place of the accident. We conclude that the evidence was insufficient and, therefore, affirm the judgment of the Appellate Court that so held.

The evidence adduced at a trial to the jury indicated the following. On May 13, 1986, the plaintiff, Edward Morin, an East Hartford police officer, responded to a radio dispatch informing him of a fire on the premises of the defendant, Bell Court Condominium Association, Inc. The complex consisted of four buildings housing approximately 200 people. There was no evidence that an agent of the defendant had requested police presence on the premises on that day. Upon arriving at 10 Bell Court, a three story building served by front and rear common hallways and staircases, the plaintiff entered the unlocked rear entrance and proceeded to evacuate the occupants. In the course of descending from the third floor to the second floor, the plaintiff sustained injuries when he tripped on a defective stair. The plaintiff testified that he, or other police officers, had been on the premises approximately twenty to thirty times prior to this accident, but he could not cite specific dates, times or places of their visits to the condominium complex. The plaintiff also failed to establish that any of the visits had occurred subsequent to the time that the defendant assumed control of the common areas when the complex was converted from rental apartments to condominiums.

At trial, the jury returned a general verdict for the plaintiff. Thereafter, the trial court granted the defendant’s motion to set aside the verdict on the ground that there was insufficient evidence, as a matter of law, for the jury to have reasonably concluded that the defendant knew or should have known of the plaintiff’s presence on the premises at the time and place of the incident. The Appellate Court affirmed the judgment of the trial court; Morin v. Bell Court Condominium Assn., Inc., 25 Conn. App. 112, 593 A.2d 147 (1991); and we subsequently granted certification to appeal limited to the issue of the sufficiency of the evidence concerning constructive notice.

On appeal, the plaintiff claims that the judgment of the Appellate Court should be reversed because: (1) constructive notice of his presence was established since the condominium complex had high levels of traffic in the common areas and the police had been summoned to the premises many times in the past and it was, therefore, foreseeable that they might return; and (2) constructive notice should have been assumed since the premises were open to the public. The parties agree that the defendant never had actual knowledge of the plaintiff’s presence on the premises and that the plaintiff’s legal status as a police officer on the premises in his official capacity was that of a licensee.

I

The plaintiff first claims that constructive notice of his presence was established because the police had been summoned to the dwelling twenty to thirty times in the past and it was, therefore, reasonably foreseeable that they might return. The plaintiff further argues that even if the defendant did not anticipate this particular plaintiff, the defendant still should be liable because it should have reasonably anticipated that someone might be injured by the defective step given the high level of traffic in the common areas of the condominium.

In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee. Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971); see D. Wright, J. FitzGerald & W. Ankerman, Connecticut Law of Torts (3d Ed.) § 47, p. 109. A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. Warren v. Stancliff, 157 Conn. 216, 218, 251 A.2d 74 (1968). In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover. Id.; see generally D. Wright, J. FitzGerald & W. Ankerman, supra, § 49. “The duty that a . . . [possessor of land] owes to a licensee, [however,] does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he finds them. Dougherty v. Graham, 161 Conn. 248, 251, 287 A.2d 382 (1971).” Furstein v. Hill, 218 Conn. 610, 624, 590 A.2d 939 (1991); see generally D. Wright, J. FitzGerald & W. Ankerman, supra, § 48. In general, however, with respect to active operations that the occupier engages in, as opposed to passive conditions on the land, “there is an obligation to exercise reasonable care for the protection of a licensee. He must . . . [for example], run his train, operate his machinery, or back his truck with due regard for the possibility that the licensee may be present. The obligation is higher than that owed to a trespasser, because the possessor may be required to look out for licensees before their presence is discovered; but reasonable care will of course be affected by the probability that the licensee will come, whether he may be expected to follow a particular path, the time of day, and the nature of the danger.” W. Prosser & W. Keeton, Torts (5th Ed.) § 60, p. 416. Additionally, as with trespassers, there is a duty to refrain from injuring a licensee “intentionally, or by willful, wanton or reckless conduct.” W. Prosser & W. Keeton, supra, p. 415. As a general rule, “the possessor of real estate owes no duty to trespassers . . . to keep the property in a reasonably safe condition for their use . . . .” D. Wright, J. FitzGerald & W. Ankerman, supra, § 47, p. 110; see Carlson v. Connecticut Co., 95 Conn. 724, 730, 112 A. 646 (1921).

We treat as licensees police officers who are on private property in the exercise of their duties. Furstein v. Hill, supra, 615-16.

“The most compelling argument for the continuing validity of the rule is the recognition that . . . police officers often enter property at unforeseeable times and may enter unusual parts of the premises under emergency circumstances. Kreski v. Modern Wholesale Electric Supply Co., [429 Mich. 347, 368, 415 N.W.2d 178 (1987)]; Nared v. School District of Omaha, 191 Neb. 376, 379-80, 215 N.W.2d 115 (1974); 2 Restatement (Second), Torts (1965) § 345 (1), comment (c), p. 228. Such public officers enter the land regardless of the owner’s consent; indeed, if the conditions for the exercise of their public duty exist, the owner would not be privileged to exclude them. Shypulski v. Waldorf Paper Products Co., 232 Minn. 394, 396, 45 N.W.2d 549 (1951); Scheurer v. Trustees of the Open Bible Church, 175 Ohio St. 163, 168, 192 N.E.2d 38 (1963); 5 F. Harper, F. James & O. Gray, The Law of Torts (2d Ed. 1986) § 27.14, p. 260.” Fursteinv. Hill, supra, 616-17.

“Recognizing that only invitees may rely on an implied representation of safety, courts have considered it unreasonable to require landowners to undertake the same standard of care for public officers whose presence the landowners can neither predict nor interdict. ‘There would be an obvious hardship in holding otherwise, because landowners would then be under compulsion to keep all parts of their premises in a condition perhaps uncalled for by the normal use to which the premises are devoted.’ Shypulski v. Waldorf Paper Products Co., supra, 397; see also 2 Restatement (Second), Torts (1965) § 345 (1), comment (c), p. 228.” Furstein v. Hill, supra, 617.

If the licensor actually or constructively knows of the licensee’s presence on the premises, however, the licensor must use reasonable care “both to refrain from actively subjecting him to danger and to warn him of dangerous conditions which the possessor knows of but which he cannot reasonably assume that the licensee knows of or by reasonable use of his faculties would observe.” Lubenow v. Cook, 137 Conn. 611, 614, 79 A.2d 826 (1951); see Corcoran v. Jacovino, supra, 465. In order to establish that the defendant had constructive knowledge of the plaintiff’s presence on the premises, the plaintiff must prove a level of knowledge “equivalent to actual knowledge.” Corcoran v. Jacovino, supra, 468.

The seminal Connecticut decision on this issue is Haffey v. Lemieux, 154 Conn. 185, 244 A.2d 551 (1966). In Haffey, the plaintiff postal carrier’s injury was caused when a stair leading to the mailbox on the porch of the defendant’s single family home collapsed. Id., 187. The evidence adduced in Haffey established that the defendant had resided in his home for at least six months prior to the accident and that the plaintiff had delivered the mail daily, or at least whenever there was mail, at about the same time and at a specific place. Id., 189-90. We concluded that constructive knowledge had been established because the plaintiff had visited the house with such reasonable regularity that his use of the premises was reasonably predictable. Id., 188. In arriving at this conclusion, we stated that “where, as here, the presence of the licensee at the approximate time and place of injury reasonably could, and should, be anticipated by the licensor, this should be regarded as the equivalent of actual knowledge of the licensee’s presence at that time and place . . . .’’Id., 189.

The plaintiff argues that the Appellate Court should have limited Haffey’s focus upon the acts of the specific claimant to situations involving single family homes. The plaintiff contends that the Haffey rationale is inapplicable when the accident site is the common area of a condominium building. The plaintiff asserts that because many people, both invitees and licensees alike, utilized the common areas involved, a higher duty of care is required than that applicable to single family homes, which generally have far fewer visitors. The plaintiff maintains that this higher duty of care would involve focusing not just on himself or other police officers who may have previously visited the premises, but rather on the fact that many licensees use the premises and it was, therefore, foreseeable that some licensee, including himself, might be injured on the defective step. We disagree.

Unlike the minority of other states that have abolished distinctions between licensees and invitees in favor of the general duty of reasonable care that the plaintiff favors, we continue to adhere to the proposition that the defendant’s duty is based on the entry status of the particular person in question. See Furstein v. Hill, supra, 620-23. The prior presence of other licensees or invitees is, therefore, usually not relevant for purposes of the inquiry at hand. The prior presence of a person other than the plaintiff may, however, be relevant in cases in which such person is merely fulfilling the same function that another had previously done with reasonable regularity and predictability, e.g., a substitute or replacement postal carrier.

In this case, the plaintiff failed to establish that there was a predictable pattern of prior usage by himself or other police officers in his stead. See Haffey v. Lemieux, supra, 188-89. The plaintiff did not establish any dates for his or other officers’ visits to the premises nor did he prove that he or other officers had ever been to 10 Bell Court, one of four buildings on the grounds of the complex. The plaintiff also failed to offer any evidence that any of the visits occurred after the defendant took control of the premises following their conversion from apartments to condominiums. We agree with the plaintiff that constructive notice of a victim’s presence can be established without having to prove a frequency of visits akin to that of a mail carrier, but a plaintiff must still establish that the visits were reasonably regular and predictable such that they became the equivalent of actual knowledge. This the plaintiff failed to do. Although the plaintiff established that police officers had visited the premises twenty to thirty times prior to the incident, he established no pattern of regularity with respect to specific dates, times and places of their visits at the condominium complex.

The plaintiff further argues that even if a predictable pattern of use was not established, the defendant’s manager, Daniel Thibodeau, expected the plaintiff or another police officer to be on the premises at the approximate time and place of the plaintiff’s accident. The record fails to support this claim. On the contrary, Thibodeau testified that he had had no reason to believe that the plaintiff or any other police officer would be at the premises at the time of the plaintiffs accident. Thibodeau’s testimony, in response to a hypothetical question, that he reasonably expected the police to come to the premises and use the common areas if they were summoned for emergency aid, does not serve as an adequate basis for the plaintiff’s contention that Thibodeau expected the police at the time and place in question.

The plaintiff further argues that the Appellate Court decision produces the anomalous result that trespassers, to whom a lesser duty of care is owed, may recover when their presence is only reasonably anticipated whereas the plaintiff, as a licensee, cannot recover under similar circumstances. The plaintiff cites McPheters v. Loomis, 125 Conn. 526, 533, 7 A.2d 437 (1939) (trespassing child), Carlson v. Connecticut Co., 95 Conn. 724, 730, 112 A. 646 (1921) (adult trespassing on trolley tracks), and Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 202, 470 A.2d 705 (1984) (trespassing child), to support his proposition.

As noted above, “the possessor of real estate owes no duty to trespassers ... to keep the property in a reasonably safe condition for their use . . . .” D. Wright, J. FitzGerald & W. Ankerman, supra, § 47, p. 110; see Carlson v. Connecticut Co., supra. The cases cited by the plaintiff, however, fall within two of the exceptions to this general rule, i.e., trespassing children and dangerous conditions on property, which recognize an associated risk of death or serious bodily harm. In these cases, a higher duty of care has been imposed on the landowner. In Duggan v. Esposito, 178 Conn. 156, 158, 422 A.2d 287 (1979), we approved of the rule stated in § 339 of the Restatement (Second) of Torts, “with respect to the liability of the possessor of property for physical harm to children.” A possessor of land is liable for physical harm to child trespassers caused by an artificial condition thereon, if, inter alia, “the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass . . . .” 2 Restatement (Second), Torts (1965) § 339. Similarly, with respect to activities highly dangerous to constant trespassers, the rule as stated in Carlson v. Connecticut Co., supra, 730, follows the rule of § 334 of the Restatement (Second) of Torts: ‘ ‘A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.”

The plaintiff argues that these exceptions to the general rule with respect to trespassers impose on the possessor of land a more stringent standard of duty than that applicable to a police officer licensee because: (1) notice need only pertain to the presence of trespassers in general, not a specific party; and (2) at least with respect to the standard for trespassing children, the possessor of land need only have knowledge that the presence of children is likely rather than constructive knowledge equivalent to actual knowledge of their presence.

While there may be some overlap in the applicable duty of care owed to trespassers and licensees because of these special exceptions to the liability rules generally governing injuries to trespassers, this does not establish that the whole system of liability based on entrant status is fatally flawed or that the Appellate Court erred in holding that the defendant did not have constructive knowledge of the plaintiffs presence on the premises. Further, even if we were to use the standard for trespassing children, it is not clear that the plaintiff would have prevailed. As noted above, there was no evidence presented that showed that any of the police officers’ prior visits occurred after the defendant had taken control of the premises and, therefore, the defendant would not have had any way of knowing whether it was likely that the police officers would have been on the premises.

II

The plaintiff next claims that even if he failed to establish constructive notice by showing a predictable pattern of prior usage, constructive notice should be assumed because, according to § 345 (2) of the Restatement (Second) of Torts, there is an exception to the general rule that licensees are not afforded the implied representation of safety given to invitees when, as here, the premises were open to the public. The exception provides that “[t]he liability of a possessor of land to a public officer or employee who enters the land in the performance of his public duty, and suffers harm because of a condition of a part of the land held open to the public, is the same as the liability to an invitee.” (Emphasis added.) 2 Restatement (Second), Torts (1965) § 345 (2). The plaintiff argues that, although the individual condominium units are private, the common stairways and hallways should, for the purposes of this exception, be considered open to the public because they are burdened with far more traffic, both invitees and licensees, than the typical private, single family residence, and, therefore, the defendants should have reasonably anticipated the presence of licensees such as the plaintiff.

Although there is a paucity of case law on this specific issue, we approve of the result reached in Flowers v. Rock Creek Terrace, 308 Md. 432, 437-38, 520 A.2d 361 (1987), which specifically rejected a plaintiff firefighter’s argument that he should be considered an implied invitee because he was injured in an area open to the public, i.e, an apartment building’s common area. The fact that common areas of a condominium complex are open to the various condominium owners does not establish that they are, as a matter of law, open to the public. In situations in which the premises have been considered open to the public, there is generally some sort of public function or traditional business purpose being served. Public or business functions are conspicuously absent in a private residence such as a condominium building.

The plaintiff further contends that additional support for his argument can be based on the fact that the rear entrances to the premises were unlocked. The plaintiff cites no authority, nor are we aware of any, for the proposition that an unlocked door is evidence that the premises are open to the public. Moreover, although the plaintiff relies on the reasoning found in the dissent in Morin v. Bell Court Condominium Assn., Inc., 25 Conn. App. 112, 122, 593 A.2d 147 (1991) (Dupont, C. J., dissenting), to support his proposition that the premises were open to the public, the dissent correctly concedes that common areas of condominiums are not open to the general public. That dissent’s characterization of the premises as a “semipublic” area, while it may support the inference that the premises have more traffic than a single family home, does not support the proposition that they are actually open to the public. See id., 124.

The judgment of the Appellate Court is affirmed.

In this opinion Peters, C. J., Callahan and Borden, Js., concurred.

Berdon, J.,

dissenting. I agree with the well reasoned dissent of Chief Judge Dupont of the Appellate Court in Morin v. Bell Court Condominium Assn., Inc., 25 Conn. App. 112, 118-26, 593 A.2d 147 (1991). Accordingly, I respectfully dissent.

       We certified the following issue on appeal: “Did the Appellate Court correctly conclude that the plaintiff had introduced insufficient evidence at trial for the jury to find that the defendant had constructive notice of the plaintiff’s presence at the time and place of the accident?” Morin v. Bell Court Condominium Assn., Inc., 220 Conn. 908, 597 A.2d 334 (1991).

        In Haffey v. Lemieux, 154 Conn. 185, 188, 244 A.2d 551 (1966), we stated that a postal carrier “has been generally considered to be a business visitor rather than a mere licensee.” That case was tried, however, on the theory that the plaintiff, like a police officer, was a licensee, and we analyzed the defendant’s duty on that assumption.

       See Brady v. Consolidated Rail Corporation, 35 Ohio St. 3d 161, 163-64, 519 N.E.2d 387 (1988) (affirming reversal of summary judgment in favor of the defendant railroad corporation because the plaintiff police officer was injured in a railroad right-of-way through a public sidewalk that the defendant was statutorily obligated to keep in good repair for the benefit of all members of the public).

       The Restatement (Second) of Torts, § 345 (2), illustration five, offers as an example of premises open to the public a department store during business hours.