State v. Liam M. , 176 Conn. App. 807 ( 2017 )

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STATE OF CONNECTICUT v. LIAM M.*
(AC 39337)
Sheldon, Keller and Bishop, Js.
Syllabus
Convicted, following a jury trial, of the crimes of assault in the second degree
with a dangerous instrument and disorderly conduct, the defendant
appealed to this court. The defendant’s conviction stemmed from an
incident in which the complainant provided a written statement at the
police station claiming that the defendant had struck her with a pipe
seven hours earlier. After photographing her injuries, two officers went
to the defendant’s residence to question him. The defendant refused to
speak with the officers and attempted to close the door, but one officer
prevented him from doing so by stepping over the threshold and placing
his foot at the base of the door. The defendant was arrested in the foyer
of his residence and transported to the police station, where he made
certain incriminating statements. The trial court denied the defendant’s
motion to suppress those statements, finding that the warrantless arrest
did not violate either the federal or state constitutions because the
officers had probable cause to effectuate the warrantless arrest and
exigent circumstances had existed at the time of the arrest. On appeal,
the defendant claimed that there was insufficient evidence for the jury
to determine that the pipe used in the assault was a dangerous instrument
pursuant to the statute (§ 53a-3 [7]) defining a dangerous instrument as
any instrument capable of causing death or serious physical injury under
the circumstances in which it was used. He also claimed that the trial
court improperly denied his motion to suppress. Held:
1. The evidence was sufficient to support the defendant’s conviction of
assault in the second degree with a dangerous instrument, as the jury
reasonably could have found that the pipe used in the assault was a
dangerous instrument capable of causing serious physical injury under
the circumstances in which it was used by the defendant; the defendant’s
description of the pipe as metal, together with the photograph of the
bruise it inflicted on the complainant and a description of the manner
in which it was used, created the reasonable inference that the pipe
was capable of causing serious physical injury in the manner in which
it was used by the defendant, and notwithstanding the defendant’s claim
that the evidence showed only that the pipe was capable of inflicting
a bruise, the question of fact for the jury was whether the general manner
in which the pipe was used had the potential for causing serious physical
injury, and not whether a serious physical injury actually resulted.
(One judge dissenting)
2. The trial court erred in denying the defendant’s motion to suppress his
incriminating statements to the police: the record showed that the war-
rantless arrest occurred inside the defendant’s home, which rendered
it presumptively unreasonable unless one of the established exceptions
to the warrant requirement was met, and because probable cause for
a warrantless arrest in the home is not an exception to the exclusionary
rule under the state constitution (Conn. Const., art. I, § 7), which affords
greater protection than its federal counterpart, and the state did not
meet its burden of proving exigent circumstances to justify the war-
rantless arrest, the trial court should have excluded the defendant’s
incriminating, custodial statements as tainted fruit of the unconstitu-
tional warrantless arrest; moreover, the record did not support the trial
court’s determination that exigent circumstances existed at the time of
the arrest, as there was no evidence of a risk of danger to the complain-
ant, who had given her statement to the police at the police station
seven hours after the incident occurred, or that the defendant would
either destroy evidence or flee.
Argued May 15—officially released October 3, 2017
Procedural History
Substitute information charging the defendant with
the crimes of assault in the second degree with a danger-
ous instrument and disorderly conduct, brought to the
Superior Court in the judicial district of New Haven,
geographical area number seven, where the court,
McNamara, J., denied the defendant’s motion to sup-
press certain evidence; thereafter, the matter was tried
to the jury before McNamara, J.; verdict and judgment
of guilty, from which the defendant appealed to this
court; subsequently, the court, McNamara, J., issued
an articulation of its decision. Reversed; new trial.
John R. Williams, for the appellant (defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Patrick Griffin, state’s attorney, and
James Dinnan, senior assistant state’s attorney, for the
appellee (state).
Opinion
BISHOP, J. The defendant, Liam M., appeals from the
judgment of conviction, rendered after a jury trial, of
assault in the second degree with a dangerous instrue-
ment in violation of General Statutes § 53a-60 (a) (2)1
and disorderly conduct in violation of General Statutes
§ 53a-182 (a) (1).2 On appeal, the defendant claims that
(1) his conviction for assault in the second degree
should be reversed because there was insufficient evi-
dence for the jury to determine that a polyvinyl chloride
(PVC) pipe is a dangerous instrument within the mean-
ing of General Statutes § 53a-3 (7), and (2) the trial court
erred in denying his motion to suppress incriminating
statements that he made to police on the ground that
such statements should have been excluded as tainted
fruit of an unconstitutional arrest. We agree that the
trial court erred in denying the defendant’s motion to
suppress, and, accordingly, we reverse the judgment of
conviction as to both charged offenses.
The jury reasonably could have found the following
facts. At approximately 11:30 p.m. on October 4, 2014,
the complainant provided a written statement to the
North Haven Police Department alleging that her hus-
band, the defendant, had assaulted her at approximately
4:30 p.m. that day. The statement reads: ‘‘[The defen-
dant] followed me outside to my car yelling at me and
he picked up a grey PVC pipe and swung it at me and
hit me in the right hip on the side of my rear. Prior to
swinging the pipe he threw a piece of wood at me and
I had an open umbrella in my hand and used it as a
shield and the umbrella broke. After he struck me with
the PVC pipe he then blocked me from entering my
house so I got my keys out of my car which was in the
driveway and went up the stairs to enter from the deck
thr[ough] my kitchen. He followed me up yelling at me
but did not strike me again. I grabbed my makeup case
and left the house and got in my car and headed to
work. On my way to work I called the [North] Haven
police main [phone] number to see if I could file a
complaint over the phone just to have it on record and
was told I needed to come down here and file it in
person and I said [okay] I couldn’t I had to go to work.
I did get to work around 5 p.m. and headed to the
[North] Haven Police [Department] after work [at
approximately] 11:30 [p.m.].’’
After the complainant provided her written state-
ment, the officers photographed a bruise on her right
hip, which she claimed resulted from the defendant
striking her with the PVC pipe. The complainant also
indicated to police that there was a history of domestic
violence between her and the defendant, and that he
became angry and violent when drinking alcohol.
Acting on the basis of the information that the com-
plainant provided, Officers John Gaspar and Michael
DiCocco of the North Haven Police Department went
to the defendant’s residence to question him. The defen-
dant answered the door to his home, but remained
inside the doorway and refused to speak with the offi-
cers. The defendant then attempted to close the door
to his home, but Gaspar prevented him from doing so
by stepping ‘‘inside with [his] foot at the base of the
door . . . .’’ In his testimony, Gaspar acknowledged
that he needed to step over the threshold to arrest the
defendant, and described the place of arrest as in ‘‘the
foyer.’’ The defendant was placed under arrest and
transported to the police station by DiCocco, while
Gaspar remained at the residence to wait for the com-
plainant to arrive home.3
While in custody, and after having received a
Miranda4 warning at 1:34 a.m., the defendant made an
oral statement to DiCocco. The officer testified at trial
as to the contents of the statement, stating that the
defendant said that during ‘‘an argument [the complain-
ant] was very upset. And that she had taken a metal pipe
and that she was hitting him with it. [The defendant]
said that he then removed it from her hands, and he
told me that he struck her with it once.’’ When DiCocco
tried to question him about the incident, the defendant
stated that he did not strike the complainant. The defen-
dant was released from police custody, and was charged
subsequently with assault in the second degree in viola-
tion of § 53a-60 (a) (2) and disorderly conduct in viola-
tion of § 53a-182 (a) (1).5
Prior to trial, the defendant filed a motion to suppress
the custodial statements that he made to police indicat-
ing that he had hit the complainant with a ‘‘ ‘metal
tube,’ ’’ on the ground that the statements were the
tainted fruit of an unconstitutional, warrantless arrest
under the state and federal constitutions. The court
heard the testimony of Gaspar and DiCocco, and Chris
Zyck, a friend of the defendant who claimed to have
been present during the arrest.6 Following the presenta-
tion of testimony, the court denied the defendant’s
motion to suppress, finding (1) ‘‘the officers had proba-
ble cause to effectuate a warrantless arrest of the defen-
dant’’ from ‘‘the information the officers had from the
[complainant],’’ and (2) ‘‘exigent circumstances existed
at the time of the arrest.’’ Thereafter, in their respective
testimonies at trial, both the complainant and the defen-
dant denied that the incident occurred.7 The complain-
ant’s statement to the police was admitted as a full
exhibit pursuant to State v. Whelan, 200 Conn. 743, 753,
513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597,
93 L. Ed. 2d 598 (1986). On April 7, 2016, the jury found
the defendant guilty of assault in the second degree
and disorderly conduct. On June 17, 2016, the court
sentenced the defendant to five years incarceration,
execution suspended after three years, and two years
of probation on the count of assault in the second
degree, and ninety days incarceration on the count of
disorderly conduct, to be served concurrently. This
appeal followed.
I
We address first the defendant’s claim that the evi-
dence was insufficient to support his conviction of
assault in the second degree. Specifically, he argues
that there was insufficient evidence that the PVC pipe
was a dangerous instrument within the meaning of
§ 53a-3 (7) because ‘‘the state did not prove, and did
not attempt to prove, that the . . . PVC pipe . . . in
this case was capable under the circumstances in which
it was used of causing ‘serious disfigurement, serious
impairment of health or serious loss or impairment of
the function of any bodily organ.’ ’’ We are not per-
suaded.
We begin by setting forth our standard of review. ‘‘In
reviewing the sufficiency of the evidence to support a
criminal conviction we apply a two-part test. First, we
construe the evidence in the light most favorable to
sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the [finder of fact] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt.’’
(Internal quotation marks omitted.) State v. Jones, 289
Conn. 742, 754–55, 961 A.2d 322 (2008).
‘‘A person is guilty of assault in the second degree
when . . . with intent to cause physical injury to
another person, the actor causes such injury to such
person or to a third person by means of a deadly weapon
or a dangerous instrument other than by means of the
discharge of a firearm . . . .’’ General Statutes § 53a-
60 (a) (2). Thus, the state bore the burden of proving
beyond a reasonable doubt that ‘‘(1) the defendant
intended to cause physical injury to another person,
(2) he did in fact cause injury to such person and (3) he
did so by means of a dangerous instrument.’’ (Internal
quotation marks omitted.) State v. Bosse, 99 Conn. App.
675, 678, 915 A.2d 932, cert. denied, 282 Conn. 906, 920
A.2d 310 (2007). The defendant claims that the state
failed to meet its burden with regard to the third element
because there was insufficient evidence to prove that
a PVC pipe, as used in the present case, was a danger-
ous instrument.
Whether an instrument is a dangerous instrument is
a question of fact for the jury. State v. Jones, 173 Conn.
91, 95, 376 A.2d 1077 (1977). ‘‘[F]indings of fact are
entitled to great deference [on review] and will be over-
turned only on a showing that they were clearly errone-
ous.’’ State v. Moreno-Cuevas, 104 Conn. App. 288, 291,
934 A.2d 260 (2007), cert. denied, 287 Conn. 901, 947
A.2d 344, cert. denied, 555 U.S. 947, 129 S. Ct. 400, 172
L. Ed. 2d 293 (2008). Indeed, ‘‘[i]n reviewing factual
findings, [w]e do not examine the record to determine
whether the [finder of fact] could have reached a con-
clusion other than the one reached. . . . Instead, we
make every reasonable presumption . . . in favor of
the [finder of fact] . . . .’’ (Internal quotation marks
omitted.) Farren v. Farren, 162 Conn. App. 51, 66, 131
A.3d 253 (2015), cert. denied, 320 Conn. 933, 134 A.3d
622, 623, cert. denied, U.S. , 137 S. Ct. 296, 196
L. Ed. 2d 215 (2016).
A ‘‘ ‘[d]angerous instrument’ ’’ is defined as ‘‘any
instrument, article or substance which, under the cir-
cumstances in which it is used or attempted or threat-
ened to be used, is capable of causing death or serious
physical injury . . . .’’ General Statutes § 53a-3 (7).
‘‘ ‘Serious physical injury’ ’’ is defined as ‘‘physical injury
which creates a substantial risk of death, or which
causes serious disfigurement, serious impairment of
health or serious loss or impairment of the function of
any bodily organ . . . .’’ General Statutes § 53a-3 (4).
In determining whether an instrument is dangerous,
a jury may find that an ordinary object is a dangerous
instrument; State v. McColl, 74 Conn. App. 545, 554, 813
A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782(2003); and our case law recognizes a variety of ordinary
objects as dangerous instruments in certain circum-
stances. See id., 555 (‘‘ ‘feet and footwear’ ’’); see also
State v. Leandry, 161 Conn. App. 379, 390, 127 A.3d
1115 (hypodermic syringe), cert. denied, 320 Conn. 912,
128 A.3d 955 (2015); State v. Peay, 96 Conn. App. 421,
441, 900 A.2d 577 (defendant did not dispute that crow-
bar was dangerous instrument), cert. denied, 280 Conn.
909, 908 A.2d 541 (2006); State v. Brooks, 88 Conn. App.
204, 210, 868 A.2d 778 (four foot long steel pipe), cert.
denied, 273 Conn. 933, 873 A.2d 1001 (2005); State v.
Huff, 10 Conn. App. 330, 332, 335, 523 A.2d 906 (in
trial court, defendant did not dispute that ‘‘miniature
wooden baseball bat approximately sixteen inches long
and two and one-half inches in diameter’’ was danger-
ous instrument), cert. denied, 203 Conn. 809, 525 A.2d
523 (1987). Thus, ‘‘[e]ach case must be individually
examined to determine whether, under the circum-
stances in which the object is used or threatened to be
used, it has the potential for causing serious physical
injury.’’ (Internal quotation marks omitted.) State v.
McColl, supra, 554.
In the present case, the state presented a photograph
of the PVC pipe,8 and a photograph of the bruise on the
complainant’s hip, visible seven hours after the incident,
which the complainant alleged was caused by the pipe.
As to the character of the instrument itself, although
the jury did not have the PVC pipe in evidence,9 it had
a photograph of the PVC pipe, as well as a photograph
of the bruise that it caused. Additionally, the defendant
himself described the pipe as ‘‘ ‘metal.’ ’’10 Thus, even
though there was no testimony as to the rigidity or
weight of the pipe, the defendant’s description of the
pipe, together with the bruise inflicted by it, reasonably
created the inference that the pipe was capable of caus-
ing serious physical injury in the manner in which it
was used by the defendant.11
The defendant asserts that ‘‘the evidence showed only
that the [PVC] pipe was capable of inflicting a bruise.’’
In making this claim, the defendant conflates the actual
harm done with the potential harm created by his con-
duct. Significant to our analysis is the notion, embedded
in § 53a-3 (7), that an instrument may be characterized
as dangerous on the basis that it is capable of causing
serious physical injury by the manner in which it is
used apart from the actual injury that may have been
inflicted. See State v. Jones, supra, 173 Conn. 95. Thus,
the question is not whether a serious injury ensued but,
rather, whether the defendant’s general manner of using
the instrument created the risk of such an injury. Our
focus on the complainant’s bruise constitutes only a
part of our analysis.
Indeed, ‘‘it is not necessary . . . under the definition
of a dangerous instrument, that any physical injury actu-
ally have been inflicted.’’ State v. Jones, supra, 173
Conn. 95. Rather, as this court has previously opined,
for an instrument to be found to be dangerous it ‘‘need
only be used in a manner capable of causing serious
injury under the circumstances. Hence, the analysis
focuses on the actual circumstances in which the instru-
ment [was] used in order to consider the instrument’s
potential to cause harm. . . . The statute neither
restricts the inquiry to the exact manner in which the
object was actually used, nor requires any resulting
serious physical injury. . . . The facts and circum-
stances need show only that the general way in which
the object was used could potentially have resulted in
serious physical injury.’’ (Emphasis added; internal
quotation marks omitted.) State v. Brooks, supra, 88
Conn. App. 209–10.
Accordingly, in assessing whether the jury had suffi-
cient evidence to conclude that the instrument used by
the defendant was a dangerous instrument, we look not
only to the character of the instrument itself but also
to the general manner in which it was used together
with the resulting injury. In addition to the photographs
described previously, the state presented evidence of
the complainant’s statement, in which she alleged that
the defendant ‘‘swung’’ the PVC pipe at her, and struck
her on her ‘‘right hip on the side of [her] rear.’’ The jury
also heard DiCocco’s testimony that the defendant said
he ‘‘ ‘struck’ ’’ the complainant with a ‘‘ ‘metal tube.’ ’’
Thus, the jury was presented with evidence of the type
of instrument, the manner in which the instrument was
used, and the injury that resulted from the defendant’s
use of the instrument.
In sum, in undertaking the fact intensive question of
whether the PVC pipe was a dangerous instrument, the
significant inquiry for the jury was not whether a serious
physical injury actually resulted, but whether the gen-
eral manner in which the PVC pipe was used—swinging
the PVC pipe at the complainant and striking her—had
the potential for causing serious physical injury. See
State v. Brooks, supra, 88 Conn. App. 209–10; see also
State v. Jones, supra, 173 Conn. 95. ‘‘[D]raw[ing] reason-
able inferences from the evidence . . . [and] bring[ing]
to bear its common sense and experience of the affairs
of life’’; (internal quotation marks omitted) State v. Hur-
dle, 85 Conn. App. 128, 142, 856 A.2d 493, cert. denied,
271 Conn. 942, 861 A.2d 516 (2004); the jury determined
that the PVC pipe was a dangerous instrument.12
After thoroughly reviewing the record, we cannot
conclude that the jury’s determination was factually
unsupported. On the basis of the evidence, viewed in
the light most favorable to sustaining the verdict, we
conclude that the jury reasonably could have found that
the PVC pipe, under the circumstances in which it was
used by the defendant, was a dangerous instrument
capable of causing serious physical injury. Accordingly,
the evidence was sufficient to support the defendant’s
assault conviction.
II
We next address the defendant’s claim that the court
erred in denying his motion to suppress his incriminat-
ing statements to the police because his warrantless
arrest inside his home violated his constitutional rights
under the fourth amendment to the United States consti-
tution and article first, § 7, of the constitution of Con-
necticut. Specifically, the defendant argues that no
exigent circumstances existed to justify his warrantless
arrest, and, thus, the court should have excluded from
the evidence at trial his incriminating, custodial state-
ments as tainted fruit of the unconstitutional arrest.
We agree.
‘‘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 . . . . We undertake a
more probing factual review when a constitutional ques-
tion hangs in the balance.’’ (Internal quotation marks
omitted.) State v. Owen, 126 Conn. App. 358, 363, 10
A.3d 1100, cert. denied, 300 Conn. 921, 14 A.3d 1008(2011).
‘‘Well known federal and state constitutional princi-
ples govern the exclusion of evidence derived from a
warrantless entry into a home. The fourth amendment
to the United States constitution provides: ‘The right
of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.’ ’’
(Footnote omitted.) State v. Geisler, 222 Conn. 672, 681,
610 A.2d 1225 (1992). Article first, § 7, of the constitution
of Connecticut provides: ‘‘The people shall be secure
in their persons, houses, papers and possessions from
unreasonable searches or seizures; and no warrant to
search any place, or to seize any person or things, shall
issue without describing them as nearly as may be, nor
without probable cause supported by oath or affir-
mation.’’
‘‘[S]earches and seizures inside a home without a
warrant are presumptively unreasonable.’’ Payton v.
New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed.
2d 639 (1980). Thus, ‘‘[i]t is axiomatic that the police
may not enter the home without a warrant or consent,
unless one of the established exceptions to the warrant
requirement is met. Indeed, [p]hysical entry of the home
is the chief evil against which the wording of the fourth
amendment is directed.’’ (Internal quotation marks
omitted.) State v. Kendrick, 314 Conn. 212, 224, 100
A.3d 821 (2014).
To discourage warrantless arrests, ‘‘the exclusionary
rule bars the government from introducing at trial evi-
dence obtained in violation of the fourth amendment
to the United States constitution. . . . The rule applies
to evidence that is derived from unlawful government
conduct, which is commonly referred to as the fruit
of the poisonous tree . . . . [A]rticle first, § 7, of the
Connecticut constitution similarly requires the exclu-
sion of unlawfully seized evidence.’’ (Citations omitted;
internal quotation marks omitted.) State v. Brocuglio,
264 Conn. 778, 786–87, 826 A.2d 145 (2003).
The exclusionary rule under the state constitution
affords greater protection to individuals than its federal
counterpart. Under the federal standard, statements
made outside of the home incident to an illegal war-
rantless home arrest need not be excluded when the
officers had probable cause to make the warrantless
arrest. See New York v. Harris, 495 U.S. 14, 20–21, 110
S. Ct. 1640, 1644, 109 L. Ed. 2d 13 (1990); see State v.
Geisler, supra, 222 Conn. 682. ‘‘[A]rticle first, § 7 [of
the constitution of Connecticut, however] requires that
evidence derived from an unlawful warrantless entry
into the home be excluded unless the taint of the illegal
entry is attenuated by the passage of time or intervening
circumstances.’’ State v. Geisler, supra, 690. In sum,
the exclusionary rule, in the context of Connecticut’s
constitutional protection against warrantless arrests in
the home, does not contain a probable cause exception
akin to its federal constitutional counterpart.
In the present case, the record clearly reflects that
a warrantless arrest occurred inside the defendant’s
home. Gaspar testified that the defendant ‘‘attempted
to close the door to prevent the arrest. So, [Gaspar]
stepped inside with [his] foot at the base of the door
to prevent [the defendant] from closing it . . . .’’ He
further testified that the arrest took place in the foyer.
Such a warrantless arrest can only be effectuated if
an exception to the warrant requirement exists. In its
articulation of its denial of the motion to suppress,
the trial court determined that ‘‘exigent circumstances
existed at the time of the arrest’’ to support the war-
rantless arrest.13 The record does not support such a
finding.
Exigent circumstances 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, with-
out seeking prior judicial authorization.’’ (Internal quo-
tation marks omitted.) State v. Guertin, 190 Conn. 440,
447, 461 A.2d 963 (1983). Three categories of exigent
circumstances exist: ‘‘those that present a risk of danger
to human life; the destruction of evidence; or the flight
of a suspect.’’ State v. Kendrick, supra, 314 Conn. 227.
The exception is further limited by the context of the
situation, and ‘‘[c]ircumstances which may be regarded
as sufficiently exigent for a warrantless entry into an
automobile may not be sufficient for a warrantless entry
into a home.’’ State v. Guertin, supra, 447.
‘‘[W]hen there are reasonable alternatives to a war-
rantless search, the state has not satisfied its burden
of proving exigent circumstances.’’ (Internal quotation
marks omitted.) Id., 449. Indeed, given the strengthened
protections that the constitution of Connecticut grants
to its citizens under article first, § 7, and that the ‘‘excep-
tions [to the warrant requirement] have been jealously
and carefully drawn’’; (internal quotation marks omit-
ted) State v. Owen, supra, 126 Conn. App. 364; a war-
rantless arrest must be limited to situations that permit
it. This was not such a situation.
In the present case, the complainant gave her state-
ment to police approximately seven hours after the
incident occurred, a lapse of time which, itself, belies
any claim of urgency in effectuating the defendant’s
arrest. Once the complainant gave her statement to the
police, several hours after the incident, she did indicate
that she intended on returning to the residence that
evening, but she was at the police station at the time
of her statement. Under that circumstance, the police
readily could have instructed the complainant to remain
at the station until they obtained a warrant for the
defendant’s arrest. Instead, the police proceeded to the
residence, arrested the defendant, and waited for the
complainant to return home.
In sum, the court heard no evidence of a risk of
danger to human life, destruction of evidence, or flight
of the suspect to justify a warrantless arrest. Accord-
ingly, the state did not meet its burden of establishing
the existence of exigent circumstances in order to jus-
tify the warrantless arrest of the defendant. See State
v. Guertin, supra, 190 Conn. 447. Finally, the record
does not support the finding that the officers would
have been unable to arrest the defendant unless they
acted swiftly and without a warrant; see id.; and, thus,
the defendant’s warrantless arrest violated his state
constitutional rights. Because the defendant’s custodial
statements were borne of an illegal arrest under article
first, § 7, of the constitution of Connecticut, the state-
ments must be excluded as tainted ‘‘fruit of the poison-
ous tree.’’ (Internal quotation marks omitted.) State v.
Brocuglio, supra, 264 Conn. 786. Accordingly, the trial
court erred in denying the defendant’s motion to
suppress.14
The judgment is reversed and the case is remanded
for a new trial.
In this opinion KELLER, J., concurred.
* In accordance with our policy of protecting the privacy of the victims
of family violence, we decline to identify the complainant or others through
whom the complainant’s identity may be ascertained. See General Statutes
§ 54-86e.
1
General Statutes § 53a-60 (a) (2) provides in relevant part: ‘‘A person is
guilty of assault in the second degree when . . . with intent to cause physi-
cal injury to another person, the actor causes such injury to such person
or to a third person by means of a deadly weapon or a dangerous instrument
other than by means of the discharge of a firearm . . . .’’
2
General Statutes § 53a-182 (a) (1) provides: ‘‘A person is guilty of disor-
derly conduct when, with intent to cause inconvenience, annoyance or
alarm, or recklessly creating a risk thereof, such person . . . [e]ngages in
fighting or in violent, tumultuous or threatening behavior . . . .’’
3
Approximately one hour after the defendant was arrested, the complain-
ant returned to the residence. She spoke with Gaspar, who had remained
on-site, and the officer took photographs of a wooden shingle and the
PVC pipe.
4
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
5
On October 5, 2014, the defendant was initially charged with assault in
the third degree in violation of General Statutes § 53a-61. The charge was
increased to assault in the second degree in a long form information filed
March 15, 2016.
6
The court credited the testimony of the two officers, but not that of the
defendant’s friend. ‘‘As a reviewing court, we may not retry the case or pass
on the credibility of witnesses. . . . We must defer to the trier of fact’s
assessment of the credibility of the witnesses that is made on the basis of
its firsthand observation of their conduct, demeanor and attitude.’’ (Internal
quotation marks omitted.) State v. Kendrick, 314 Conn. 212, 223, 100 A.3d
821 (2014).
7
The complainant testified that she made a false statement because she
was angry with the defendant, and filing the complaint ‘‘was just a way to
get back at him.’’ The defendant later testified that, on the morning of
October 4, the complainant ‘‘had received a telephone call from one of her
friends . . . and she was invited out for drinks and cocktails in the afternoon
at a local establishment. And, prior to this, unfortunately, I found her in
bed with another man, and I made an agreement to resolve the issue based
on her not frequenting any bars or restaurants or anything like that. So . . .
the agreement was I was going to leave her, divorce her if the behavior
continued . . . . I told her that was it, I was going to file for divorce. I had
a place to stay, my sister’s residence. I was going to relocate while she did
her thing. And she got very enraged and said she was going to ruin me. She
knows the best way of ruining me is calling the police, because the police
and I don’t have a very good rapport . . . .’’
8
The photograph depicts the PVC pipe leaning against the wall near a
door and surrounded by a pile of objects. The state estimates that the pipe
was five feet long and two inches wide on the basis of the photograph.
Although we do not find support in the record for this precise estimate, the
photograph, in the context of other objects near to the pipe, readily supports
the conclusion that the pipe is in excess of four feet.
9
There is no indication in the record as to why the PVC pipe was not
taken into custody and offered as an exhibit at trial.
10
The jury heard conflicting testimony concerning the material of the PVC
pipe. The jury heard that, in his statement to police, the defendant described
the pipe as ‘‘ ‘metal.’ ’’ Gaspar, on the other hand, described the PVC pipe
as ‘‘grey plastic.’’
11
Although we determine in part II of this opinion that the defendant’s
statement should have been excluded, in determining the sufficiency of the
evidence, we look to both the properly and improperly admitted evidence
at trial. State v. Ricketts, 140 Conn. App. 257, 261 n.1, 57 A.3d 893, cert.
denied, 308 Conn. 909, 61 A.3d 531 (2013).
12
Furthermore, in addition to the elements for assault in the second degree,
the jury instructions also included the elements for the lesser included
offense of assault in the third degree, which does not require use of a
dangerous instrument. ‘‘[D]raw[ing] whatever inferences from the evidence
or facts established by the evidence it deem[ed] to be reasonable and logical’’;
State v. Jones, supra, 289 Conn. 755; the jury found the defendant guilty of
assault in the second degree, and not the lesser offense. This court will ‘‘not
sit as a [seventh] juror who may cast a vote against the verdict based upon
our feeling that some doubt of guilt is shown by the cold printed record
. . . .’’ (Internal quotation marks omitted.) State v. Ovechka, 292 Conn. 533,
547, 975 A.2d 1 (2009). Rather, we ‘‘construe the evidence in the light most
favorable to sustaining the verdict.’’ (Internal quotation marks omitted.) Id.13
The state asserts that the defendant’s claim as to the lack of exigent
circumstances is moot because he challenges only one of three bases on
which the court’s ruling on the motion to suppress could be affirmed. In
furtherance of this argument, the state claims that, in addition to exigent
circumstances, (1) ‘‘the officers had probable cause to effectuate a war-
rantless arrest of the defendant,’’ and (2) ‘‘based on [an] attenuation analysis
. . . the defendant’s ‘statements were not subject to exclusion [and] were
properly entered.’ ’’ (Internal quotation marks omitted.) We are not per-
suaded.
As noted, under the constitution of Connecticut, the existence of probable
cause alone does not allow for the admission of statements made following
a warrantless arrest within a defendant’s place of abode. Additionally, the
record reflects that the court made no attenuation analysis in either its oral
ruling or its written articulation. We also reject the state’s claim that an
attenuation analysis can be inferred from the court’s findings. ‘‘The factors
to be considered in determining whether the statement of an accused is
sufficiently attenuated from the original illegality to cleanse it of its taint
are (1) whether Miranda warnings had been issued, (2) the temporal proxim-
ity of the illegal police action and the statement, (3) the presence of interven-
ing circumstances, and (4) the purpose and flagrancy of the official
misconduct.’’ State v. Brunetti, 279 Conn. 39, 73, 901 A.2d 1 (2006), cert.
denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). Although the
court did note that the defendant had received a Miranda warning prior to
making his statement, the court did not analyze any of the other three
attenuation factors. In sum, the court made no finding of attenuation—
either expressly or impliedly. Indeed, the record would not support such a
finding. We note that the timing between the defendant’s arrest and his
custodial statements is similar to the interval found in Geisler, where our
Supreme Court, on review, found that: ‘‘the time between the defendant’s
arrest in the home and the defendant’s station house statements . . . was
minimal. . . . Furthermore, there were no intervening circumstances to
break the causal connection between the warrantless entry into the home
and the evidence in question.’’ (Internal quotation marks omitted.) State v.
Geisler, supra, 222 Conn. 683–84. In the present case, the defendant was
arrested after midnight, the police read him his Miranda rights as part of
the booking process at 1:34 a.m., and the defendant made incriminating,
custodial statements to police sometime after he received his Miranda
warnings. There was no evidence of intervening circumstances to break
the causal connection between the defendant’s warrantless arrest and his
subsequent custodial statements. Because the defendant challenged the
court’s ruling as to probable cause and exigent circumstances, the only two
bases relied upon by the court in ruling on the motion to suppress, the
defendant’s argument is not moot.
14
‘‘[M]ost constitutional violations are subject to . . . harmless error
review’’; State v. Artis, 314 Conn. 131, 153, 101 A.3d 915 (2014); and ‘‘the
state bears the burden of proving that the constitutional impropriety was
harmless beyond a reasonable doubt.’’ State v. Brown, 279 Conn. 493, 511,
903 A.2d 169 (2006). In the present case, the state makes no argument that
the admission of the defendant’s statement, if erroneous, was harmless
beyond a reasonable doubt as to either or both convictions. Because the
state bears the burden of demonstrating harmlessness in this circumstance,
and in light of the absence of such an argument, we do not undertake an
unbidden harmless error analysis on review.