State v. Copeland

Page 567

576 A.2d 567

22 Conn.App. 98

STATE of Connecticut v. David COPELAND.

No. 8468.

Appellate Court of Connecticut.

Argued April 3, 1989.

Decided June 19, 1990.

Dennis C. La Ganza, for appellant (defendant).

Leah Hawley, Asst. State's Atty., with whom, on the brief, were John A. Connelly, State's Atty., and Karen Diebolt, Deputy Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and DALY and NORCOTT, JJ.

NORCOTT, Judge.

The defendant was convicted after a jury trial of first degree robbery in violation of General Statutes § 53a-134(a)(3). He challenges on appeal the trial court's rulings (1) denying his request for a Franks ¹ hearing, and (2) permitting an in-court identification by the victim after ruling an out-of-court identification inadmissible.

The following facts are undisputed. On February 27, 1988, John Trentalange was supervising the Michael Lange Music Shop in Waterbury. At approximately 10 a.m., a black male entered the shop and asked Trentalange about guitar lessons. The man was wearing a dark leather or vinyl hat, a black jacket, a yellow shirt and dark bluish pants. Trentalange spoke with this man for approximately ten to fifteen minutes, and then the man left.

Later that day, at about 3:15 p.m., the same man returned to the music shop. He was dressed in the same clothes he had worn in the morning, except that this time he was wearing a red wool ski cap. After the other customers left the store, the man pulled out a knife with a four inch blade and demanded the money in the cash register. He took approximately $250. Trentalange described the perpetrator as a brown-skinned male, about six feet tall and 160 pounds, with decayed and crooked teeth and no facial hair.

On February 29, 1988, the police obtained a warrant authorizing the search of the defendant's room for the clothing that Trentalange had described, the knife and certain items described by the manager of a McDonald's that had been robbed in a similar manner on January 29, 1988. The affidavit in support of the warrant was based on information given by David Waters, who lived in the same apartment building as the defendant. Waters told police that the defendant had come into his room on February 27, 1988, and informed him that he had robbed the Michael Lange Music Shop and a McDonald's. Waters said the defendant told him that he had robbed the music shop and had to "lay low," that he had pretended to want to buy something, then pulled a knife, threatened the man in the store, and robbed him of $125 to $130. Waters said the defendant then showed him a buck knife with a four inch chipped blade and brown handle. Waters also said that the defendant's teeth were decayed and crooked.

The search of the defendant's room resulted in the seizure of the shirt and jacket described by Trentalange and the knife believed to have been used in the robbery. The items seized were introduced at trial. Also at trial, Trentalange positively identified the defendant as the perpetrator, and, thereafter, the jury returned a verdict of guilty.

I

The defendant first claims that the trial court should have granted his request for a Franks hearing. He alleges that the affiants intentionally omitted material information from their affidavit.

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that a defendant may challenge the veracity of the affiants and obtain an evidentiary hearing on the issue if he can make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit"; id., at 155-56, 98 S.Ct., at 2676-77; and that "the allegedly false statement is necessary to the finding of probable cause...." Id., at 156, 98 S.Ct., at 2676; see also State v. Bergin, 214 Conn. 657, 666, 574 A.2d 164 (1990). This rule also applies where the claim is that facts were intentionally or recklessly omitted. State v. Bergin, supra; State v. Stepney, 191 Conn. 233, 238, 464 A.2d 758 (1083), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984).

" '[T]he Fourth Amendment requires that a hearing be held at the defendant's request' "; State v. Ruscoe, 212 Conn. 223, 232, 563 A.2d 267 (1989), cert. denied, --- U.S. ----, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990); only if the statements that were allegedly intentionally omitted would affect the finding of probable cause.

Specifically, the defendant claims that the affiants failed to include in the affidavit the fact that Waters, the person who supplied them with the tip about the defendant, had originally been a suspect in the case and had a prior felony record. ² The defendant contends that this information was material to a finding of probable cause because it affected Waters' credibility.

In denying the defendant's request, the trial court held that even if the information had been included in the warrant affidavit, it would not have affected the determination of probable cause, and a hearing was, therefore, unnecessary. We agree.

Under our state constitution, the warrant must pass the Aguilar- Spinelli ³ test. State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985). "The Aguilar- Spinelli test for reviewing a magistrate's finding of probable cause consists of two prongs: ' " 'The issuing [judge] must be informed of (1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.' " ' State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984)." State v. Morrill, 205 Conn. 560, 566, 534 A.2d 1165 (1987).

There is no question in this case that Waters satisfied the basis of knowledge prong of the Aguilar- Spinelli test. The affidavit states that Waters obtained his information about the crime directly from the defendant and that he had seen the knife that the defendant claimed to have used in the robbery. Waters' information was obtained through his direct observation, which is sufficient to satisfy the basis of knowledge requirement. See State v. Daley, 189 Conn. 717, 720, 458 A.2d 1147 (1983); see also State v. Morrill, supra; State v. Banta, 15 Conn.App. 161, 177, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988); cf. State v. Barton, 22 Conn.App. 62, 576 A.2d 561 (1990).

The defendant argues that if the omitted information, that is, that Waters had a criminal felony record and was originally a suspect, had been included in this affidavit, the affidavit could not have satisfied the second prong of Aguilar- Spinelli. He argues that with this additional information, a magistrate could not have found the informant to be credible or his information reliable. We find this argument to be unpersuasive.

"[A]n affiant may omit facts that he believes to be either immaterial or unsubstantiated." State v. Bergin, supra; see also People v. Stewart, 105 Ill.2d 22, 43, 85 Ill.Dec. 241, 473 N.E.2d 840 (1984), cert. denied, 471 U.S. 1131, 105 S.Ct. 2666, 86 L.Ed.2d 283 (1985). Even if he had read these additional facts, the magistrate in this case could have determined that the information was reliable. The first fact that verifies the reliability of the information is that the affiant here provided the name of the informant rather than employing "the common practice of referring to an anonymous informant, thereby exposing him to public view ... and to possible criminal and civil liability should his allegations prove false." State v. Daley, supra, 189 Conn. at 725, 458 A.2d 1147. In this light, Waters could be viewed as a citizen informer; see id., 189 Conn at 724, 458 A.2d 1147; and " '[i]t is generally agreed ... that a comparable showing is not needed to establish veracity when the information comes from an average citizen who is in a position to supply information by virtue of having been a crime victim or a witness.' 1 W. LaFave, Search and Seizure § 3.4, p. 587." Id.; State v. Banta, supra, 15 Conn.App. at 177-78, 544 A.2d 1226.

Further, even if we were to accept the defendant's argument that Waters could not be viewed as a citizen informer, the affidavit still verifies the reliability of his information. Waters' voluntary account of the crime comports completely with the victim's own account. While it is possible, as the defendant claims, that Waters knew the details of the robbery because he had committed the crime himself, we cannot ignore the additional facts involved here. Waters also described the defendant as having crooked and decayed teeth, the same distinct characteristic that the victim had described. The fact that the police corroborated this significant piece of information with the statement taken from the victim is enough to establish reliability. "If the police have evidence (such as from prior independent police work) which corroborates some of the details included in the affidavit, then an inference of reliability will arise.... In fact, if there has been sufficient corroboration, a statement may support a warrant regardless of its source." (Citations omitted; emphasis added.) State v. Ferguson, 185 Conn. 104, 113, 440 A.2d 841 (1981). Even if there were initially a suggestion that Waters fabricated his information, the suggestion was repudiated by the police investigation confirming its accuracy. See State v. Ruscoe, supra, 212 Conn. at 233, 563 A.2d 267. "Where many significant portions of a statement of an informant have been verified from independent reliable sources, it may be reasonable to infer the accuracy of the remainder." State v. Daley, supra, 189 Conn. at 721, 458 A.2d 1147; see also State v. Weinberg, 215 Conn. 231, 239-40, 575 A.2d 1003 (1990).

In reviewing the warrant affidavit, we...