State v. Munoz

932 A.2d 443

104 Conn.App. 85

STATE of Connecticut v. Diego MUNOZ.

No. 27476.

Appellate Court of Connecticut.

Argued March 20, 2007.

Decided October 2, 2007.

Michael T. Meehan, with whom were Edward J. Gavin, Bridgeport and, on the brief, Christopher Y. Duby, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Kimberley N. Perrelli, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, LAVINE and DUPONT, Js.

DUPONT, J.

The defendant, Diego Munoz, appeals from the judgment of conviction rendered by the trial court following his conditional plea of nolo contendere¹ pursuant to General Statutes § 54-94a² to risk of injury to a child in violation of General Statutes § 53-21(a)(2).³ The plea followed the court's ruling that evidence of three incidents of prior uncharged sexual misconduct, involving two witnesses, was admissible to show the intent of the defendant to commit the crime and followed the court's determination that its ruling was dispositive of the case. The defendant claims that the court improperly determined that the evidence was admissible when it denied his motion to suppress the evidence and subsequently determined that its ruling was dispositive of the case. We affirm the judgment of the trial court.

I

The threshold question in this appeal is whether the conditions of § 54-94a have been satisfied, thereby allowing us to undertake a review of whether the trial court correctly denied the defendant's motion to suppress the evidence of prior uncharged misconduct.⁴ The answer lies in the wording of the statute, as amended effective October 1, 2001, by Public Acts 2001, No. 01-13 (P.A. 01-13), the amendment's legislative history and the particular record in this case.

To help us resolve the issue of the applicability of the statute, we asked the parties to file supplemental briefs as to these matters: (1) did the trial court correctly determine that its ruling on the motion to suppress was dispositive of the case; (2) should that determination be reviewed by this court; and (3) if the determination should be reviewed, what is the standard of review?

The use of § 54-94a by the defendant requires, as a mandatory precondition to our review, a finding by the trial court that its ruling on his motion to suppress was dispositive of the case. See State v. McGinnis, 83 Conn.App. 700, 705, 851 A.2d 349 (2004). If we assume that the precondition has been satisfied, the issue for our consideration on appeal, pursuant to the statute, is limited to whether it was proper for the court to have denied the motion to suppress. In this case, the state and the defendant at the time the plea was entered assumed that § 54-94a was operative and that its terms were satisfied. Both stipulated that the denial of the motion was dispositive. The court specifically found that its ruling on the motion to suppress was dispositive of the case.

The defendant in his initial appellate brief did not discuss the applicability of the statute, but the state, for the first time, in its supplemental appellate brief, argued that the defendant did not come within the terms of the statute because, it asserted, "the defendant's motion was neither a motion to suppress nor dispositive. . . ." The state, therefore, urged this court to use its supervisory powers to review the question of the admissibility of the defendant's uncharged misconduct.⁵

The defendant, in his supplemental brief, claims that the court correctly determined that its ruling was dispositive and that we should review the denial of the motion to suppress, pursuant to the statute or in accordance with our supervisory authority over the administration of justice. The state, in its supplemental brief, urges us to address the merits of the denial of the defendant's motion to suppress without addressing the court's finding that the issue was dispositive, but urges that if we were to review whether the issue was dispositive, we should conclude (1) that the court's ruling was improper because the introduction of the state's evidence was not dispositive of the case and (2) that the defendant's motion was not a motion to suppress, but a motion in limine.⁶

A brief review of the legislative history of P.A. 01-13 and its statutory antecedents is relevant and instructive. The legislation allowing conditional nolo contendere pleas was originally passed in 1982 as Public Acts 1982, No. 82-17. See State v. Madera, 198 Conn. 92, 98, 503 A.2d 136 (1985). As the legislation was enacted originally, a defendant could preserve his claim, after entering a conditional plea of nolo contendere, only if the claim arose from the trial court's denial of a "motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss . . . ." (Internal quotation marks omitted.) Id., at 97 n. 4, 503 A.2d 136. In 1988, the legislature expanded the circumstances in which a defendant could preserve a claim after having entered a conditional plea of nolo contendere. See Public Acts 1988, No. 88-19. The language of the statute was amended to provide that a defendant could also preserve an issue arising from the denial of a "motion to suppress statements and evidence based on the involuntariness of a statement." (Internal quotation marks omitted.) State v. Piorkowski, 236 Conn. 388, 404, 672 A.2d 921(1996). The statute was amended again in 2001, when the current language was adopted.

The House of Representatives, on May 2, 2001, passed Senate Bill No. 1383, "An Act Concerning a Plea of Nolo Contendere Conditional on the Right to Take an Appeal," with only one negative vote. 44 H.R. Proc., Pt. 6, 2001 Sess., pp. 1989-92. Representative Michael P. Lawlor stated, when he urged the passage of the bill, that the amendment both expanded the right to appeal beyond a claim of unreasonable search and seizure, or motions pertaining to statements or confession type motions, and narrowed the right to appeal by requiring the ruling on the motion to suppress to be dispositive of the case. Id. He noted that although the vast majority of the cases involved in a motion to suppress concern search and seizure or statements or confessions, there "are other motions to suppress which are taken up prior to trial and in the case that one of those might actually be dispositive of the case, the thinking is that by allowing the option to waive the trial and go directly to the appeal, [that] might free up some court time so that the court time can be expended on other cases." (Emphasis added.) Id., at pp. 1990-91.

The intent of the legislature in passing the amendment was summarized in the office of legislative research bill analysis of Senate Bill No. 1383. The amendment "adds to the circumstances under which a criminal defendant may enter a conditional nolo contendere . . . plea" and restricts "the circumstances under which judges can accept such pleas." (Internal quotation marks omitted.) Office of Legislative Research, Bill Analysis of Senate Bill No. 1383, p. 1. The summary specifically states that "[t]he bill would permit immediate appeal of a court's refusal to suppress evidence on non-constitutional grounds."⁷ Id. The trial court must determine that the "ruling is dispositive of the case.... [The] appellate court's review is limited to whether the trial court's ruling was supported by the record. Where error is found, the defendant may withdraw his plea and proceed to trial without the challenged evidence." Id.

The legislative history of the 2001 amendment to § 54-94a indicates that in limited instances, nonconstitutional grounds as well as constitutional grounds for the statute's use can be involved in motions to suppress and can be reviewed by us if the trial court has determined that the issue is dispositive of the case. The present statute as amended, however, does not give a carte blanche ticket to a defendant for review of all claims made prior to trial. See, e.g., State v. Commins, 276 Conn. 503, 515-20, 886 A.2d 824 (2005) (situations in which trial court did not deny motion to dismiss or motion to suppress or defendant did not clearly indicate plea conditional); State v. Lasaga, 269 Conn. 454, 478-80, 848 A.2d 1149 (2004) (denial of continuance as violation of defendant's right to counsel); State v. Potter, 95 Conn. App. 89, 92-94, 894 A.2d 1063 (2006) (denial of motion for treatment as youthful offender); State v. Jenkins, 82 Conn.App. 802, 812-15, 847 A.2d 1044 (denial of motion to open hearing to let defendant testify), cert. denied, 269 Conn. 915, 852 A.2d 745, cert. denied, 543 U.S. 1025, 125 S.Ct. 667, 160 L.Ed.2d 503 (2004).

In this case, the court found that the issue was dispositive, and both the state and the defendant stipulated that it was dispositive.⁸ Furthermore, the state by its original stipulation in the trial court that the motion to suppress fit under the terms of § 54-94a is now estopped from asserting otherwise. See Milner v. Commissioner of Correction, 63 Conn.App. 726, 732-35, 779 A.2d 156 (2001).

As we have noted, the state stipulated in the trial court that the court's ruling was dispositive. "[T]ypically, noncompliance with a mandatory statutory provision may be waived, either explicitly or implicitly, by the parties .... [A] party may relinquish its right to demand strict adherence to a mandatory statutory provision by virtue of its own failure to enforce that right." (Citations omitted.) Santiago v. State, 261 Conn. 533, 543, 804 A.2d 801 (2002). Here, the state has waived any right it may have had to dispute whether the court was correct in its determination.

Section 54-94a limits the "[t]he issue to be considered in [the] appeal ... to whether it was proper for the court to have denied the motion to suppress" the uncharged misconduct evidence, and the appeal cannot be expanded beyond that issue. State v. Commins, supra, 276 Conn. at 516, 886...