State v. Crespo

145 Conn.App. 547

76 A.3d 664

STATE of Connecticut

v.Victor CRESPO.

No. 33493.

Appellate Court of Connecticut.

Argued Feb. 19, 2013.

Decided Sept. 10, 2013.

Megan L. Weiss, deputy assistant public defender, with whom was Martin Zeldis, public defender, for the appellant (defendant).

Leonard C. Boyle, deputy chief state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Nicholas J. Bove, Jr., senior assistant state's attorney, for the appellee (state).

BEAR, ALVORD and SHELDON, Js.

SHELDON, J.

The defendant, Victor Crespo, appeals from the judgment of conviction, rendered after a jury trial, of carrying a pistol or revolver without a permit in violation of General Statutes § 29–35, unlawful possession of a weapon in a motor vehicle in violation of General Statutes § 29–38 and possession of an assault weapon in violation of General Statutes § 53–202c. The defendant claims that (1) the trial court improperly denied his motion to suppress evidence; (2) the trial court improperly denied his motion to suppress oral and written statements; (3) the trial court improperly denied his motion to disclose the identity of a confidential informant; (4) there was insufficient evidence to sustain his conviction of carrying a pistol or revolver without a permit; and (5) the trial court improperly denied his motion for a mistrial, which was based on alleged judicial misconduct due to improper criticisms of defense counsel in the presence of the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 18, 2010, at approximately 10:45 p.m., Officer Hugo Stern of the Bridgeport Police Department received a tip from a confidential informant ¹ (informant) that he/she had been approached by a man seller) in the parking lot of the T Market in Bridgeport offering to sell the informant an Uzi-type pistol. The informant described the seller as a “Hispanic male” with a “[s]lender build, approximately five-seven, [wearing] a black jacket, blue jeans, and ... a multicolor knitted hat....” The informant stated that the gun was wrapped in a black plastic garbage bag. The informant told Stern that the seller had removed the gun from a white van bearing Connecticut registration plate 98CB28, which was parked in the parking lot of the T Market.² Armed with this information, Stern called Officer Frank Delbouno of the Bridgeport Police Department, requesting that Delbouno meet him at the T Market. Stern arrived at the T Market approximately ten minutes later to investigate the informant's tip.

Upon his arrival at the T Market, Stern immediately saw the defendant standing a few feet away from a white van, which was parked in the parking lot of the T Market. Satisfied that the defendant matched the informant's description of the seller, Stern exited his police cruiser, drew his weapon and ordered the defendant to raise his hands; the defendant complied. After conducting a patdown search of the defendant, which did not produce any weapons, Stern ordered the defendant to lie on the ground; the defendant again complied. Thereafter, Delbouno arrived at the scene to provide backup. Because the side door to the van was completely open, Stern was able to see a black plastic garbage bag inside it, which was similar to that which the informant had described. Stern ordered Delbouno to seize the bag, which he did. Inside the bag, Delbouno found a loaded, semiautomatic Uzi-type pistol.

While Delbouno was securing the gun, the defendant volunteered, without interrogation, that the van “was his vehicle....” Thereafter, Stern arrested the defendant. After Stern placed the defendant in the backseat of his police cruiser, the defendant voluntarily stated, again unprompted by interrogation, that “he was holding the weapon for Fats, who was supposed to meet him later ... in exchange for some heroin folds.” ³ The informant subsequently appeared on the scene and identified the defendant as the man who had attempted to sell him the gun. The informant further confirmed that the defendant's van was the vehicle from which the seller had retrieved the gun. The defendant was then transported to Bridgeport police headquarters.

At approximately 10 a.m. the following morning, January 19, 2010, Detective Paul Ortiz of the Bridgeport Police Department approached the defendant and asked him to make a statement.⁴ The defendant agreed and executed a waiver of rights, at which time Ortiz advised him of his Miranda rights. See footnote 3 of this opinion. The defendant then provided a written statement to Ortiz in which he stated that he had agreed to “hold the firearm” in exchange for heroin.

The defendant was charged on the basis of the previously described seizures and statements with one count each of carrying a pistol or revolver without a permit in violation of § 29–35, unlawful possession of a weapon in a motor vehicle in violation of § 29–38 and possession of an assault weapon in violation of § 53–202c. The defendant filed motions to suppress all physical evidence obtained by the police as well as all statements he had made to Stern and Ortiz. The defendant also moved for disclosure of the informant's identity. Following an evidentiary hearing, the trial court denied the defendant's motions.

The defendant was tried by a jury and found guilty on all counts. The court rendered judgment accordingly and sentenced the defendant to a total effective term of ten years incarceration, of which one year was a mandatory minimum that could not be suspended or reduced by the court, pursuant to General Statutes § 29–37. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the trial court improperly denied his motion to suppress evidence related to his possession of the gun, arguing that the officers lacked probable cause to believe that the van contained contraband or evidence of a crime when they searched it and found the gun. Specifically, the defendant contends that the information provided by the informant was insufficient to support a finding of probable cause, and, thus, that the evidence seized from his vehicle should have been suppressed as the fruit of an unlawful search and seizure. We disagree.

In denying the defendant's motion to suppress evidence, the trial court found the following relevant facts. Stern received a tip from a reliable informant that a man had attempted to sell an Uzi-type gun in the parking lot of the T Market. The informant described the seller's physical appearance, clothing and vehicle. The informant further stated that the gun had been wrapped in a black plastic garbage bag, located in the van. Stern previously had received accurate and useful information from the informant, which had led to approximately five arrests. The court found that the informant was not anonymous and that the informant's basis of knowledge for the tip was derived from his/her personal interaction with the defendant.

Within ten minutes of receiving the informant's tip, Stern arrived at the T Market to conduct an investigation into the proposed sale of the firearm. Stern immediately saw the defendant, who matched the informant's description of the seller, standing next to a van that matched the informant's description of the seller's vehicle. Stern subsequently secured the defendant on the ground. Because the side door of the van was completely open, Stern was able to observe a black plastic garbage bag inside it, which matched the informant's description of the bag containing the gun. Stern ordered Delbouno—who, at that moment, had arrived at the scene to provide backup—to seize the bag. Delbouno recovered an Uzi-type pistol containing live ammunition from inside the bag. In its oral decision, the trial court concluded “that the totality of the circumstances suggests that the police had probable cause to conduct a warrantless search of [the defendant's] vehicle.”

“It is axiomatic that [u]nder the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality.... As a general matter, the standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.... [W]hen a question of fact is essential to the outcome of a particular legal determination that implicates a defendant's constitutional rights, [however] and the credibility of witnesses is not the primary issue, our customary deference to the trial court's factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court's factual findings are supported by substantial evidence.... [W]here the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision....

“The [f]ourth [a]mendment to the United States constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable [searches] and seizures. Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing 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.... These exceptions have been jealously and carefully drawn ... and the burden is on the state to establish the exception.... One such exception is the automobile exception. In Carroll v. United States, 267 U.S. 132, 153, 155–56, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the United States Supreme Court held that, due to the inherent mobility of vehicles, it is permissible under that exception to the warrant requirement of the fourth amendment...