State v. Hoth

Page 28

718 A.2d 28

50 Conn.App. 77

STATE of Connecticut v. Craig HOTH.

No. 17615.

Appellate Court of Connecticut.

Argued May 26, 1998.

Decided Aug. 25, 1998.

Elizabeth M. Inkster, Assistant Public Defender, for appellant (defendant).

Paul Ferencek, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Michael Pepper, Former Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, C.J., and LAVERY and DUPONT, JJ.

LAVERY, Judge.

The defendant, Craig Hoth, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). ¹ On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress evidence derived from a warrantless entry into the home he shared with the victim pursuant to the emergency exception to the warrant requirements of both the federal and state constitutions and (2) admitted hearsay evidence concerning a statement the victim made to a witness. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. For a number of months prior to the murder, the victim and the defendant were roommates at the victim's condominium in Meriden. On Tuesday, December 20, 1994, at approximately 8:10 p.m., the Meriden police department was notified by Andrew Lucibello, 49, the victim's cousin, and Roger Turner, 27, the victim's former roommate, that the victim, Louis Perrotti, was missing. The complainants reported that the victim had not been seen or heard from by friends and relatives for the previous three days. The victim did not return telephone messages left on his answering machine or answer the door at his condominium. Such behavior on the part of the victim was highly unusual as he was known for his regular habits. The victim, a successful and well respected businessman, did not appear at work on Monday and Tuesday. Although he had recently sold his dry cleaning business in Wallingford, the victim continued to work at the business to help the new owner learn the trade.

In addition, Lucibello reported that the Wallingford police had attempted to reach the victim at his place of employment because a van registered in his name had been used in connection with a credit card scam in New Haven that day. Lucibello was concerned because the victim had no criminal record and would not have lent his van to anyone or permitted it to be used for criminal purposes. Also, the victim's van was not at his condominium. Sergeant Jeffrey Cossette of the Meriden police department confirmed the suspicious use of the van with the New Haven police.

Lucibello and Turner also informed Cossette that the defendant had an extensive criminal record. Cossette conducted a record check of the defendant and confirmed that the defendant had a criminal record consisting of multiple convictions. Lucibello persisted in his concern for the victim's welfare because his failure to go to work was completely out of character. He feared that the victim was disabled in his condominium. On the basis of that information, Cossette, Detective Patrick Hettrick and another officer went to the condominium. Turner had a key to the condominium and met the police there. When the police arrived at the condominium, they knocked on the door but received no answer. There were no signs of forced entry, and nothing unusual was apparent. Turner gave the police his key, which they used to enter the premises. While Turner and Lucibello remained outside, the police searched the top two floors of the three-story condominium. Cossette noticed a stain on the living room carpet and went to the lower-level garage, where the police found blood-like stains and footprints in the center of the floor. One of the officers noticed a blood-soaked sheet behind some boxes and found the victim's body there. The body had multiple stab wounds, including defensive wounds.

Lucibello identified the victim, and shortly thereafter the state's medical examiner arrived at the scene and pronounced the victim dead. ² The police secured the crime scene and sought a search warrant for the condominium. The police later obtained additional search warrants for the victim's van and the defendant's person. The defendant was arrested and charged with murder in May, 1995.

I

The defendant first claims that the trial court improperly denied his motion to suppress evidence derived from a warrantless entry into the home he shared with the victim pursuant to the emergency exception to the warrant requirement in violation of the fourth ³ and fourteenth ⁴ amendments to the United States constitution and article first, § 7, of the constitution of Connecticut. ⁵ We disagree.

The same standard of review applies to emergency doctrine claims under both the state and federal constitutions. State v. Blades, 225 Conn. 609, 624, 626 A.2d 273 (1993). "Warrantless searches and seizures inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Absent consent or exigent circumstances, a private home may not be entered to conduct a search or effect an arrest without a warrant. Steagald v. United States, 451 U.S. 204 [101 S.Ct. 1642, 68 L.Ed.2d 38] (1981); Payton v. New York, [supra]; Johnson v. United States, 333 U.S. 10 [68 S.Ct. 367, 92 L.Ed. 436] (1948)." Donovan v. Dewey, 452 U.S. 594, 598 n. 6, 101 S.Ct. 2535 [2534], 69 L.Ed.2d 262 (1981). State v. Reagan, [209 Conn. 1, 8, 546 A.2d 839 (1988) ]. The burden is on the state to show that an exception exists. State v. Harris, [10 Conn.App. 217, 224, 522 A.2d 323 (1987) ]." State v. Enright, 17 Conn.App. 142, 147, 550 A.2d 1095 (1988).

"The terms exigent circumstances and emergency doctrine are often used interchangeably when discussing warrantless entries into a home. The term exigent circumstances, however, generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization. United States v. Campbell, 581 F.2d 22, 25 (2d Cir.1978). State v. Guertin, 190 Conn. 440, 447, 461 A.2d 963 (1983); State v. Reagan, 18 Conn.App. 32, 556 A.2d 183 (1989); State v. Harris, [10 Conn.App. 217, 227, 522 A.2d 323 (1987) ]. The emergency exception refers to another type of warrantless entry that evolves outside the context of a criminal investigation and does not involve probable cause as a prerequisite for the making of an arrest or the search for and seizure of evidence. The present case is of the latter type.

"This second type of warrantless entry was recognized by the United States Supreme Court in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), and adopted by the Connecticut Supreme Court in State v. Magnano, 204 Conn. 259, 528 A.2d 760 (1987). In Mincey v. Arizona, [supra, at 385, 98 S.Ct. 2408], the United States Supreme Court recognized the exigency or emergency exception to the warrant requirement. The court held that the fourth amendment does not bar police officers when responding to emergencies, from making warrantless entries into premises and warrantless searches when they reasonably believe that a person within is in need of immediate aid. Id., [at] 392-93 . State v. Magnano, supra, [at] 266 .

"Our Supreme Court has defined the standard for determining what constitutes exigent circumstances allowing warrantless entries for arrests, searches and seizures based on probable cause of criminal activity. In State v. Guertin, supra, [190 Conn. at] 453 [461 A.2d 963], the court adopted the so-called Canby rule which requires that, under the totality of the given circumstances, a police officer has reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or other wise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others. The test is an objective one. [I]ts preeminent criterion is what a reasonable, well-trained police officer would believe, not what the arresting officer actually did believe.... Id., quoting State v. Canby, , 252 S.E.2d 164, 167 (W.Va.1979); State v. Enright, supra, [17 Conn.App. at] 148 [550 A.2d 1095].

"The present case raises the question of what test is to be employed in determining the reasonableness of the police officer's belief that a person within the home is in need of immediate aid--the situation in which that officer is faced with an emergency not involving a need for an immediate arrest or a search for evidence. We conclude that this test should be no less stringent than that adopted in Guertin.

"In reaching this conclusion, we note that there is a significant difference between a police entry for the purpose of making an arrest, or searching for evidence incident to a criminal investigation and an entry for the purpose of rendering aid or saving a human life. Although probable cause is the standard by which we judge the former situation, reasonable belief determines the latter. Mincey v. Arizona, supra, [437 U.S. at] 392 [98 S.Ct. 2408]; State v. Magnano, supra [204 Conn. 259, 528 A.2d 760]." (Emphasis in original; internal quotation marks omitted.) State v. Klauss, 19 Conn.App. 296, 300-302, 562 A.2d 558 (1989).

"[G]iven the rationale for this very limited exception, the state actors making the search must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat. Good v. Dauphin County Social Services, 891 F.2d 1087, 1094 (3d Cir.1989). The police, in order to avail themselves of this exception, must have valid reasons for the belief that an emergency exists, a belief that must be grounded in empirical facts rather than subjective feelings.... People v. Mitchell, 39...