State v. Kowalyshyn

985 A.2d 370

118 Conn.App. 711

STATE of Connecticut v. Michael KOWALYSHYN.

No. 29336.

Appellate Court of Connecticut.

Argued October 19, 2009.

Decided January 5, 2010.

Glenn W. Falk, special public defender, with whom, on the brief, was Emilia W. Vandenbroek, for the appellant (defendant).

James M. Ralls, senior assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, and Mark A. Stabile, supervisory assistant state's attorney, for the appellee (state).

LAVINE, BEACH and HENNESSY, Js.

BEACH, J.

The defendant, Michael Kowalyshyn, appeals from the judgment of conviction, following a jury trial, of attempt to commit assault in the second degree in violation of General Statutes §§ 53a-49 (a)(2) and 53a-60, threatening in the second degree in violation of General Statutes § 53a-62, reckless endangerment in the second degree in violation of General Statutes § 53a64, intimidation based on bigotry or bias in the second degree in violation of General Statutes § 53a-181k and disorderly conduct in violation of General Statutes § 53a-182.¹ The defendant claims that (1) the court improperly denied his motion to suppress certain statements he made following his arrest and (2) there was insufficient evidence to support his conviction of intimidation based on bigotry or bias in the second degree. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant. In September, 2005, Scott Beattie was living in Willimantic in a tent in a wooded area behind a museum. The defendant, with whom Beattie was acquainted, set up his tent in the same area. Beattie moved his tent to different spots in the wooded area numerous times, and the defendant persisted in moving his tent next to Beattie's tent.

On September 12, 2005, the defendant, Beattie and an unidentified man, who had indicated that he was homosexual, consumed alcohol together in a park for approximately one hour beginning at noon. The unidentified man indicated that he wanted to go to the campsite as well but did not go. While back at the campsite the defendant informed Beattie that he did not want "`fags'" around the campsite.

That evening, Beattie drank vodka and soda, along with beer, in his tent but was not drunk. Later in the evening, the defendant sat outside Beattie's tent, and they drank together. Between approximately 10:15 and 10:20 p.m., Beattie and the defendant began arguing. At some point, Beattie removed some or all of his clothes. The defendant began yelling at Beattie that "he must be a fag" because "[o]nly a fag would take his clothes off in front of another man" and because he had been "hanging around" with the unidentified man who had stated he was homosexual. Beattie yelled back at the defendant that he was not a "fag." The two men wrestled or fought for approximately fifteen to twenty minutes. Sometime during the argument, while Beattie was on his hands and knees with his back turned, the defendant poured vodka on Beattie. The defendant attempted to ignite a handheld lighter but was unable to do so. At that point, Beattie grabbed the defendant by the throat, and the defendant put Beattie in a headlock. Before leaving, the defendant told Beattie that he would be back to "burn you with gasoline; I'll do it right this time." Beattie was afraid that the defendant would return and, as a result, stayed awake during the night. Beattie did not try to leave the wooded area because he had night blindness, and the only exit was through a path that crossed in front of the defendant's tent.

The following morning, Beattie walked into town and told the director of a local soup kitchen about the incident, and subsequently Beattie telephoned the police. Beattie then went to the Willimantic police department, was interviewed and gave a statement. After an officer investigated the campsite, the police arrested the defendant.

After reviewing and executing a waiver of rights, the defendant made oral and written statements to the police. The defendant used the derogatory term "fag" numerous times in his statement and indicated that when Beattie removed his clothes, he yelled at Beattie that "he must be a fag" because "[o]nly a fag would take his clothes off in front of another man" and because he had been "hanging around" with the unidentified man who had stated he was homosexual.² Following a jury trial, the defendant was convicted of attempt to commit assault in the second degree, threatening in the second degree, reckless endangerment in the second degree, intimidation based on bigotry or bias in the second degree and disorderly conduct. The defendant was sentenced to eight years imprisonment followed by two years of special parole. This appeal followed.

I

The defendant first claims that that the court improperly denied his motion to suppress certain statements he made following his arrest. The defendant challenges the court's conclusion that probable cause existed to justify a warrantless arrest. He argues that probable cause did not exist because, in making the arrest, the police relied on Beattie's statement and Beattie was not reliable. The defendant argues that because the police lacked probable cause to arrest him, the statements he made following his arrest were fruit of the poisonous tree which should have been suppressed. We disagree.

Prior to trial, the defendant filed a motion to suppress his postarrest written and oral statements as "fruits of an unlawful arrest." After holding a hearing, the court, in its memorandum of decision on the motion to suppress, found the following facts. "[O]n September 13, 2005 ... Beattie came to the Willimantic police headquarters to complain that he had been assaulted by the defendant. In a written, notarized statement, Beattie claimed that the night before he and [the defendant], both homeless and drunk, argued and then engaged in physical fighting which, he said, [the defendant] initiated by dumping vodka on him and threatening to set him afire. After the investigating officer obtained Beattie's statement, he went to the scene of the crime. He observed the campsite area and an empty vodka bottle consistent with ... Beattie's sworn statement. ... The arresting officer found [the defendant] in a soup kitchen and placed him under arrest. Following his arrest, [the defendant] was brought to the Willimantic police department. After reviewing and executing a waiver of rights, [the defendant] made the oral and written statements which he [sought later] to suppress."

After setting forth the applicable law, the court, citing State v. Bolanos, 58 Conn. App. 365, 369, 753 A.2d 943 (2000), noted that citizen informers are presumptively reliable if they are identifiable. The court concluded that the officers had probable cause to arrest the defendant and, accordingly, denied his motion to suppress.

We first set forth our standard of review. "Our standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. 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]here the legal conclusions of the court are challenged, 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. ..." (Internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008).

Under the exclusionary rule, evidence must be suppressed if it is found to be the "`fruit'" of prior police illegality. Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). "[T]he [exclusionary] rule does not distinguish between physical and verbal evidence ... [it] extends to evidence that is merely derivative of the unlawful conduct, or what is known as the fruit of the poisonous tree." (Citations omitted; internal quotation marks omitted.) State v. Brunetti, 279 Conn. 39, 72, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007). "It is well established that statements obtained through custodial interrogation following the seizure of a person without probable cause, in violation of the fourth amendment, should be excluded unless intervening events break the causal connection between the arrest and the confession." State v. Northrop, 213 Conn. 405, 413, 568 A.2d 439 (1990).

"In order for a warrantless felony arrest to be valid, it must be supported by probable cause. ... The determination of whether probable cause exists under the fourth amendment to the federal constitution ... is made pursuant to a totality of circumstances test. ... Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed. ... The probable cause test then is an objective one." (Citations omitted; internal quotation marks omitted.) State v. Johnson, 286 Conn. 427, 435-36, 944 A.2d 297, cert. denied, ___ U.S. ___, 129 S.Ct. 236, 172 L.Ed.2d 144 (2008).

The defendant argues that certain factors undermine Beattie's reliability, such as the fact that he was trespassing by living in a tent on property owned by a power company and that he admitted drinking on the night in question. Trespassing, even if true, does not necessarily affect credibility. Consumption of alcohol, though relevant, does not necessarily destroy credibility. The investigating officer, John Reed, met with Beattie in person, took his statement and was able to observe his demeanor and to consider his credibility. Reed also investigated the campsite where he found corroborating evidence. He apparently deemed Beattie to have been credible.

Some factors support Beattie's reliability. A factor supporting an inference...