State v. Manousos , 179 Conn. App. 310 ( 2018 )

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STATE OF CONNECTICUT v. ANTHONY C.
MANOUSOS
(AC 39376)
Keller, Prescott and Beach, Js.
Syllabus
Convicted of the crime of arson in the first degree, the defendant appealed
to this court, claiming, inter alia, that the trial court improperly denied
his motions to suppress certain statements that he had made to the
police and items that were confiscated from him during an investigatory
stop and subsequent patdown of his person for weapons. The investiga-
tory stop and subsequent patdown were conducted after an officer on
patrol received a report from a police dispatcher reporting a fire and
that the man suspected of starting the fire had taken off in a certain
direction. The officer saw the defendant 300 yards from the scene of
the arson, asked him where he was coming from, and noticed that the
defendant was wearing only jeans and a T-shirt in chilly weather, and
that he was out of breath, perspiring and had a deer in headlights look
about him. The police handcuffed the defendant and performed the
patdown after they noticed a bulge in his front left pocket. The police
searched the pocket and found certain items, which were seized along
with a hooded sweatshirt and an umbrella that the defendant was car-
rying. Held:
1. The defendant could not prevail on his claim that the trial court improperly
denied his motions to suppress the statements that he had made to the
police and the items seized during the investigatory stop and patdown,
which was based on his assertion that the police lacked a reasonable
and articulable suspicion that he was involved in criminal activity:
a. The trial court properly determined, under the totality of the circum-
stances, that the police had a reasonable and articulable suspicion to
conduct the investigatory stop; the defendant was in close proximity in
time and space to the fire, he was the only person on foot in the area,
he had a deer in headlights look about him when he saw the police
officer who stopped him, which heightened the officer’s suspicion, the
officer’s suspicion was further supported by his observations that the
defendant was breathing heavily and perspiring, and was wearing only
jeans and a T-shirt, despite chilly and rainy weather, and although the
defendant’s ethnicity and the color of his sweatshirt did not match the
description of the suspect given by the dispatcher, those factors were
unimportant in comparison to the factors that gave rise to a reasonable
and articulable suspicion on the part of the officer.
b. The limited patdown of the defendant for weapons was proper, as
the totality of the circumstances supported the trial court’s finding that
the officers reasonably believed that he may have been armed and
dangerous: the bulge in the defendant’s pocket observed by the police
was strong justification for the patdown, as it indicated that the defen-
dant may have been carrying a weapon, the officers had reason to
suspect that the defendant had set a house on fire while someone was
inside the house and then fled, the fact that the defendant was hand-
cuffed during the patdown did not automatically render it unlawful, and
his cooperation with the police during the patdown did not undermine
its legality, as a handcuffed suspect may still present a danger to the
police; moreover, because the investigatory stop and patdown were
proper, the seizure of the items from the defendant’s pocket as well as
his sweatshirt and umbrella was warranted, it having been reasonable
for the police to enlarge the scope of the search by detaining the defen-
dant for a showup identification and seizing the items he was carrying,
and, therefore, the defendant’s claim that his subsequent statements to
the police should not have been admitted into evidence as fruit of the
poisonous tree was unavailing.
2. The trial court did not violate the defendant’s right to a fair trial or to
the assistance of counsel by compelling the defendant to disclose to
the state prior to trial the substance of the opinions of his expert witness;
contrary to the defendant’s claim, the court’s action did not implicate
his right to the assistance of counsel, the court did not preclude the
testimony of the defendant’s expert, nor did it order the defendant to
make written disclosures, even though it was authorized to do so under
the applicable rule of practice (§ 40-27), the court acted within its broad
discretion to maintain the orderly procedure of the proceeding by order-
ing the defendant’s expert to appear to make an offer of proof regarding
the substance of the expert’s opinions to obviate the need, in the middle
of trial, for the state to request a continuance to prepare for cross-
examination, and the issue thereafter resolved itself when the defendant
voluntarily supplied the state with the expert’s written report.
Argued October 18, 2017—officially released January 23, 2018
Procedural History
Substitute information charging the defendant with
the crime of arson in the first degree, brought to the
Superior Court in the judicial district of Stamford-Nor-
walk, where the court, White, J., denied the defendant’s
motions to suppress certain evidence; thereafter, the
matter was tried to the jury; verdict and judgment of
guilty, from which the defendant appealed to this
court. Affirmed.
Stephan E. Seeger, with whom, on the brief, was Igor
G. Kuperman, for the appellant (defendant).
Linda F. Currie-Zeffiro, assistant state’s attorney,
with whom, on the brief, were Richard J. Colangelo, Jr.,
state’s attorney, and Paul J. Ferencek, senior assistant
state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Anthony C. Manousos,
appeals from the judgment of conviction, rendered after
a jury trial, of arson in the first degree in violation of
General Statutes § 53a-111 (a) (1). The defendant claims
that the trial court improperly (1) denied his motions
to suppress various tangible items collected from him,
as well as oral statements that he made to the police
during an investigatory stop and subsequent patdown
search for weapons; and (2) compelled him to disclose
prior to trial the substance of the opinions of the expert
witness he intended to call at trial. We disagree and,
accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following
facts on the basis of the evidence adduced at trial.
On December 3, 2014, at approximately 12:40 p.m., the
Stamford police received a 911 call from Brenda Ortiz.
Ortiz reported that the multifamily home located at
52 Highland Road, in which she rented the first floor
apartment, was on fire. The property was owned by the
defendant and was in need of substantial repairs. The
defendant had been unable to sell the house despite
repeated efforts to find a buyer.
On that day, Ortiz had been asleep on the couch in
her living room when she was awakened by a strong
smell of gasoline. Unsure of where the smell was coming
from, Ortiz headed toward the porch. The smell became
even stronger as she walked into the foyer, so she
propped open the foyer door to ventilate the area with
fresh air.
Ortiz then went back inside her apartment to call her
husband. Once inside, she heard the foyer door slam
shut, as well as footsteps on the stairs leading to the
second and third floor apartment units. Ortiz went back
into the foyer, where she saw ‘‘two legs and a pair of
boots’’ traversing up the stairs. She yelled out to the
defendant,1 who did not stop or respond. Although Ortiz
could not see the defendant’s face, she noticed that the
person was wearing jeans and black boots.
Ortiz went back inside her apartment and dialed 911.
As she was dialing, she heard a loud explosion. Ortiz
looked back into the foyer and saw a ‘‘fireball’’ coming
out of the stairwell. She also saw the defendant running
down the stairs wearing the same jeans and boots she
had observed just moments beforehand, as well as a
black hooded sweatshirt.
Ortiz then grabbed her car keys and ran outside,
where she saw the defendant walking quickly down the
sidewalk. She chased after him, yelling, ‘‘yo, what the
fuck you just did?’’ The defendant turned back, saw
Ortiz, and took off running toward Grove Street.
Ortiz then got into her truck and attempted to track
him down. Unable to locate him, Ortiz drove back to
52 Highland Road and parked on the street. She then
provided a description of the defendant to the 911 oper-
ator. Soon after, police and fire personnel arrived.
Meanwhile, Sergeant Russell Gladwin of the Stam-
ford Police Department was patrolling in his vehicle on
Grove Street when he received a dispatch reporting a
fire at 52 Highland Road. The dispatcher reported that
the man suspected of starting the fire had taken off
down Highland Road and was headed toward Grove
Street.
Gladwin responded to the call, as he was only a short
distance away. As Gladwin turned right from Grove
Street onto Highland Road, he encountered the defen-
dant coming out of an empty grassy lot to his left.
Gladwin stopped the defendant and asked where he
was coming from. The defendant spontaneously offered
to show Gladwin his driver’s license.
Officer Jonathan Rizzitello arrived in the area shortly
after Gladwin. As Rizzitello approached, Gladwin ges-
tured to him to handcuff the defendant. Rizzitello then
conducted a patdown search for weapons, and seized
the defendant’s hooded sweatshirt and umbrella, which
he was carrying, as well as two sets of keys and a box of
wooden matches found in the defendant’s jeans pocket.2
Edward Rondano, a Stamford police officer assigned
to the department’s crime scene unit, also reported to
the residence located at 52 Highland Road. A fire mar-
shal pointed out to Rondano that there were two used
matches on the floor in front of the stairway. Rondano
collected the matches and stored them in plastic bags.
At about 2:15 p.m., an arson investigator, Detective
Paul Makuc of the state police, arrived at the residence.
Upon entering the foyer, Makuc smelled gasoline.
Makuc also saw an irregular burn pattern on the carpet
covering the foyer stairwell. Specifically, Makuc noticed
that the carpet on the top of the stairs was intact,
although portions of the carpet on the lower half of the
stairs had been destroyed by fire.
Makuc believed that the irregular burn pattern indi-
cated that an accelerant may have been poured on the
staircase, suggesting arson. He therefore decided to
secure the scene and apply for a warrant to search the
residence, as well as the defendant’s clothing and his
girlfriend’s white Mercedes, which was found parked
a short distance down the street.
After the warrants were issued, Makuc and his team
reconvened and began their investigation. The team
concluded that the basement, attic unit, and second
floor units did not incur any interior fire damage, while
on the first floor the foyer stairwell and closet directly
beneath it were severely damaged.
A trained canine aided Makuc in detecting the possi-
ble origin of the fire. In the stairwell, the canine alerted
to both ends of the irregular burn pattern, indicating
the presence of an accelerant such as gasoline. The
canine did not alert to any other areas in the home,
including the closet underneath the foyer stairwell.
After completing their investigation of the residence,
Makuc and his team members concluded that the fire
originated in the foyer stairwell and was incendiary in
nature—meaning that it was ‘‘set by human hands with
the use of an ignitable liquid in conjunction with an
ignition source consistent with an open flame . . .
[such as] a match or a lighter.’’
Makuc and his team then returned to the Stamford
police station, where they executed search warrants
for the defendant’s clothing items and his girlfriend’s
vehicle. Makuc’s canine alerted to the defendant’s black
hooded sweatshirt, as well as to one of his boots. Makuc
then searched the pockets of the sweatshirt and found
two partially burnt wooden matches, a white cotton
mask, and two cotton gloves. Forensic testing later
confirmed the presence of gasoline on the gloves, boot,
and hooded sweatshirt.
In the trunk of the vehicle belonging to the defen-
dant’s girlfriend, Makuc found a white garbage bag con-
taining a red, plastic five gallon gasoline can, as well
as metal containers filled with Coleman fuel. Makuc
also found an opened five-pack of white masks con-
taining four of the five masks. Forensic testing later
confirmed that the fibers from the masks found in the
trunk were consistent with white fibers found in the
defendant’s beard.
In the front console of the vehicle, the investigators
found a receipt from Home Depot for a purchase dated
December 3, 2014—the same day of the fire—for a five
gallon plastic gasoline container. In addition, a pressure
sprayer was found in the backseat of the vehicle. Foren-
sic testing later confirmed the presence of gasoline in
both the five gallon plastic container and the pres-
sure sprayer.
The defendant was subsequently arrested and, fol-
lowing a jury trial, convicted of arson in the first degree
in violation of § 53a-111 (a) (1). He was sentenced to
fourteen years of incarceration, followed by eleven
years of special parole. This appeal followed.
I
The defendant first claims that the trial court improp-
erly denied his motion to suppress the tangible items
collected from his person, and oral statements that he
made to the police following the investigatory stop and
subsequent patdown for weapons conducted by officers
Gladwin and Rizzitello. Specifically, the defendant
argues that the police lacked a reasonable and articula-
ble suspicion to stop him, as well as a reasonable belief
that he may have been armed and dangerous. We
disagree.
The following additional facts, which the trial court
found following an evidentiary hearing, and procedural
history are relevant to this claim. On December 3, 2014,
at approximately 12:40 p.m., Gladwin responded to a
radio dispatch about a fire at 52 Highland Road. The
dispatcher reported that the woman who called 911 had
seen a Hispanic male wearing a gray sweater fleeing
the scene.
Gladwin, who was driving down Grove Street a short
distance away, responded to the call. He reached High-
land Road within twenty seconds of receiving the dis-
patch. Upon turning onto Highland Road, Gladwin saw
the defendant walking out of an empty grassy lot about
300 feet from the fire. Although it was forty degrees
and raining that day, the defendant was wearing only
jeans and a T-shirt. The defendant was also carrying
an umbrella and something that looked to Gladwin to
be an outer garment.
Gladwin rolled down his window and asked the
defendant where he was coming from. The defendant
gestured back toward the empty lot and stated ‘‘over
there.’’ The defendant then spontaneously offered to
show Gladwin his driver’s license, which listed a Nor-
walk address. Gladwin noticed that the defendant was
out of breath, perspiring, and had a ‘‘deer in head-
lights’’ look.
Shortly after Gladwin encountered the defendant,
Rizzitello arrived at the scene. At that point, Gladwin
believed that detaining the defendant was appropriate.
Gladwin therefore gestured to Rizzitello to handcuff
the defendant.
As he was approaching the defendant, Rizzitello
noticed a bulge in his front left pocket. Rizzitello then
performed a patdown on the outside of the defendant’s
clothing for weapons. In doing so, he felt something
‘‘sharp and hard’’ in the defendant’s front left pocket.
Rizzitello then searched the contents of that pocket and
found two sets of keys and a box of wooden matches.
Rizzitello informed Gladwin of what he found. Glad-
win instructed him to secure the items, as well as the
defendant’s umbrella and black hooded sweatshirt.
Gladwin also instructed Rizzitello to detain the defen-
dant in anticipation of a potential street showup identifi-
cation procedure.
As Rizzitello was escorting the defendant to his vehi-
cle, the defendant spontaneously asked, ‘‘What’s going
on?’’ Rizzitello told the defendant that the police had
received a report of a fire at 52 Highland Road, and
that a man suspected of possibly starting the fire was
seen fleeing down that street. Without being asked or
otherwise prompted, the defendant stated that he
owned that residence, his girlfriend had dropped him
off there to collect rent from his tenants, he knocked
began walking to meet his girlfriend at a mall.
A short while later, Officer Sean Boeger of the Stam-
ford Police Department’s major crimes unit asked Rizzi-
tello to show him the items taken from the defendant.
Boeger noticed that the defendant’s black hooded
sweatshirt smelled heavily of gasoline, and that the
wooden matches that the defendant was carrying in his
pocket were similar to the ones found on the floor of
the foyer at the residence.
Boeger then decided to question the defendant. After
Boeger properly apprised the defendant of his Miranda3
rights, the defendant voluntarily waived his rights and
agreed to talk to Boeger. In response to Boeger’s ques-
tions, the defendant made a number of statements,
including that (1) his girlfriend had dropped him off at
the corner of Highland Road and Grove Street; (2) he
was not wearing his jacket that day because he ‘‘ran
hot’’; (3) he had been walking in the empty grassy lot
to see how the ‘‘leaves were being piled up on the lot’’;
(4) his hooded sweatshirt smelled like gasoline because
he had been using a leaf blower; and (5) he was carrying
the box of matches because they had sentimental value
to him.
Furthermore, when Boeger asked the defendant why
the wooden matches in his pocket appeared to match
those found in the foyer of the residence, he told Boeger
to question Ortiz, who, he claimed, owed him $3000 in
unpaid rent and whom he had seen ‘‘speeding out of
the driveway’’ earlier that day. When Boeger told the
defendant that he thought the defendant had set the
fire, the defendant accused Boeger of trying to get him
to admit to something that he would not.
The defendant filed a motion to suppress the tangible
items collected from his person, as well as his girl-
friend’s vehicle, following his arrest. He also later filed
a second motion to suppress oral statements that he
made to various officers the day of his arrest.
On February 22, 2016, the trial court, White, J., issued
a memorandum of decision addressing both of the
defendant’s motions to suppress. The court concluded
that, on the basis of the totality of the circumstances,
the police had a reasonable and articulable suspicion
to conduct an investigatory stop and subsequent pat-
down of the defendant. Specifically, the court found
persuasive that (1) Gladwin responded to the dispatch
and, within twenty seconds, encountered the defendant
approximately 300 feet from the fire; (2) the defendant
was carrying a sweatshirt in accordance with the
description of the possible suspect relayed in the dis-
patch; (3) the defendant was winded and wearing only
a T-shirt even though it was cold and damp that day;
and (4) the defendant was the only person on foot in
the immediate area.
Furthermore, the court determined that the police
had a reasonable belief that the defendant may have
been armed and dangerous considering the serious
nature of the crime. The court also concluded that the
police were entitled to search the contents of the defen-
dant’s front left pocket after feeling something ‘‘sharp
and hard’’ during the patdown of the outside of his
clothes. The court therefore denied the defendant’s
motions, and the tangible items seized from the defen-
dant, as well as his statements, were later admitted as
evidence at trial.
We begin by setting forth the relevant standard of
review. ‘‘[O]ur standard of review of a trial court’s find-
ings 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 . . . .
[When] the legal conclusions of the court are chal-
lenged, [our review is plenary, and] we must determine
whether they are legally and logically correct . . . .’’
(Internal quotation marks omitted.) State v. Saturno,
322 Conn. 80, 87-88, 139 A.3d 629 (2016).
In evaluating the constitutionality of a search and
seizure, however, the court must ‘‘undertake a more
probing factual review . . . .’’ (Internal quotation
marks omitted.) State v. Edmonds, 323 Conn. 34, 39,
145 A.3d 861 (2016). Thus, ‘‘[a]lthough we must, of
course, defer to the trial court’s factual findings, our
usual deference . . . is qualified by the necessity for
a scrupulous examination of the record to ascertain
whether [each] finding is supported by substantial evi-
dence . . . .’’ (Internal quotation marks omitted.) Id.
A
The defendant argues that Gladwin lacked the requi-
site reasonable and articulable suspicion that the defen-
dant was involved in criminal activity in order to make
a lawful investigatory stop. The defendant maintains
that he was stopped ‘‘based on (1) his location near the
crime scene, (2) the fact that he was the only male on
the street in an otherwise wholly residential area during
daytime hours, (3) his choice of attire, and (4) . . .
his initial surprised reaction to being stopped by . . .
Gladwin,’’ and that such facts did not justify the investi-
gatory stop. We disagree.
‘‘Under the fourth amendment to the United States
constitution, and under article first, § 7, and article first,
§ 9, of the Connecticut constitution,4 a police officer
may briefly detain an individual for investigative pur-
poses if the officer has a reasonable and articulable
suspicion that the individual has committed or is about
to commit a crime.’’ (Footnotes added and omitted.)
State v. Trine, 236 Conn. 216, 223, 673 A.2d 1098 (1996).
‘‘Reasonable and articulable suspicion is an objective
standard that focuses not on the actual state of mind of
the police officer, but on whether a reasonable person,
having the information available and known by the
police, would have had that level of suspicion.’’ (Internal
quotation marks omitted.) State v. Nash, 278 Conn. 620,
633, 899 A.2d 1 (2006). ‘‘Courts have used a variety of
terms to capture the elusive concept of [reasonable and
articulable suspicion]. . . . But the essence of all that
has been written is that the totality of the circum-
stances—the whole picture—must be taken into
account.’’ (Internal quotation marks omitted.) Id.
The totality of the circumstances supports a finding
of reasonable and articulable suspicion. It is well estab-
lished that ‘‘[p]roximity in time and place of the stop
to the crime is highly significant in the determination
of whether an investigatory detention is justified by
reasonable and articulable suspicion.’’ (Internal quota-
tion marks omitted.) State v. Houghtaling, 155 Conn.
App. 794, 813, 111 A.3d 931 (2015), aff’d, 326 Conn.
330, 163 A.3d 563 (2017). The court found that it took
Gladwin no longer than twenty seconds to reach High-
land Road after receiving the dispatch, and that the
defendant was stopped 300 feet from the residence. See
Navarette v. California, U.S. , 134 S. Ct. 1683,
1689, 188 L. Ed. 2d 680 (2014) (reasonable suspicion
existed to stop suspected drunken driver eighteen
minutes after 911 caller reported his location, which
was roughly nineteen highway miles south of where he
was stopped; ‘‘[t]hat sort of contemporaneous report
has long been treated as especially reliable’’); see also
United States v. Jackson, 652 F.2d 244, 248 (2d Cir.)
(reasonable suspicion existed to stop suspect whose
vehicle was coming from direction in which robber had
fled on foot less than five minutes earlier), cert. denied,
454 U.S. 1057, 102 S. Ct. 605, 70 L. Ed. 2d 594 (1981);
State v. Kyles, 221 Conn. 643, 661, 607 A.2d 355 (1992)
(reasonable suspicion existed to stop suspect sighted
less than two miles from crime scene ten minutes after
commission of crime). Indeed, the fact that the defen-
dant was stopped in particularly close proximity in time
and space to the residence and the fire strongly supports
a finding of reasonable suspicion.
Furthermore, the defendant was the only person on
foot in the area. Gladwin testified that, ‘‘based on the
call we had, and the fact that there was no one else on
that street, [he] thought it was strange that there was
someone right there in close proximity to [the fire].’’
(Emphasis added.) This fact further supports a finding
of reasonable suspicion. See United States v. McCargo,
464 F.3d 192, 197 (2d Cir. 2006) (reasonable suspicion
existed to stop suspect, who was walking alone with
no other pedestrians about, approximately 200 feet west
of crime scene just minutes after reported burglary
attempt), cert. denied, 552 U.S. 1042, 128 S. Ct. 645, 169
L. Ed. 2d 515 (2007).
Moreover, the defendant had a ‘‘classic deer in head-
lights’’ look on his face when he saw Gladwin. This court
has previously held that ‘‘the reaction of the suspect to
the approach of police’’ is yet another factor that may
support a finding of reasonable suspicion. (Internal quo-
tation marks omitted.) State v. Houghtaling, supra, 155
Conn. App. 813. In particular, ‘‘nervous . . . behavior
is a pertinent factor in determining reasonable suspi-
cion.’’ Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct.
673, 145 L. Ed. 2d 570 (2000). The defendant’s apparent
surprise at seeing a police officer therefore heightened
Gladwin’s reasonable suspicion that the defendant was
involved in the arson.
Finally, Gladwin’s observations that the defendant
was wearing only jeans and a T-shirt, despite the chilly
and rainy weather, and was breathing heavily and per-
spiring supported Gladwin’s reasonable suspicion that
the defendant was running from the arson scene, as
the police dispatcher had reported. See State v. Brax-
ton, 196 Conn. 685, 691–92, 495 A.2d 273 (1985) (fact
that suspect, who was discovered near crime scene
within minutes of commission of crime, was perspiring
and breathing heavily supported inference that he had
been running to avoid apprehension); see also State v.
Wilson, 178 Conn. 427, 430, 436, 423 A.2d 72 (1979)
(officer had reasonable grounds to arrest two suspects
who had reportedly fled on foot and were sweating and
breathing heavily when apprehended on cold November
night two miles from attempted robbery); State v.
Miller, 137 Conn. App. 520, 539–40, 48 A.3d 748 (reason-
able suspicion existed to stop suspect who was sweat-
ing profusely and who was in close temporal and
physical proximity to scene of burglary), cert. denied,
307 Conn. 914, 54 A.3d 179 (2012).
The defendant also argues that Gladwin lacked the
‘‘requisite particularity of description’’ to stop the defen-
dant because the color of his sweatshirt, as well as his
ethnicity, did not match the description of the suspect
relayed by the dispatcher. Specifically, the dispatcher
described the suspect as a Hispanic male wearing a
gray sweater, while the defendant is a Caucasian male
who was carrying a black hooded sweatshirt.
Our Supreme Court, however, has held that ‘‘[t]he
police . . . are not required to confirm every descrip-
tion of the perpetrator that is broadcast over the radio.
What must be taken into account is the strength of
those points of comparison which do match up and
whether the nature of the descriptive factors which
do not match is such that an error as to them is not
improbable . . . .’’ (Internal quotation marks omitted.)
State v. Kyles, supra, 221 Conn. 663. As the trial court
correctly noted, ‘‘the defendant’s race, ethnicity and the
color of the garment he was carrying were relatively
unimportant [factors] in comparison to the fact that he
was a male, he was carrying an outer garment which
could have been a sweater or a sweatshirt, he was the
only person on the street and he was a short distance
from the scene of the fire at the time Gladwin saw him.’’
See State v. Gregory, 74 Conn. App. 248, 258–60, 812
A.2d 102 (2002) (reasonable suspicion existed even
though defendant was described by officer to dispatch
as having short hair and wearing gray pants, black
sneakers, gray jacket, and black hooded sweatshirt,
while defendant, whose hair was tightly braided in corn-
rows, was wearing jeans, brown boots, and black
hooded sweatshirt when stopped; description provided
was sufficiently similar taken together with additional
facts that supported reasonable suspicion), cert.
denied, 262 Conn. 948, 817 A.2d 108 (2003). Accordingly,
we conclude that the court properly determined that,
under the totality of the circumstances, the investiga-
tory stop was justified by a reasonable and articula-
ble suspicion.
B
The defendant next argues that the police lacked the
requisite reasonable belief that the defendant may have
been armed and dangerous to justify a patdown for
weapons. The defendant asserts that besides the serious
nature of the crime, there was ‘‘absolutely nothing in
the record that could explain why the police officers
thought that the defendant posed a threat to their safety
. . . .’’ We disagree.
‘‘If, during the course of a lawful investigatory deten-
tion, the officer reasonably believes that the detained
individual might be armed and dangerous, the officer
may undertake a patdown search of the individual to
discover weapons.’’ State v. Trine, supra, 236 Conn.
223–34. ‘‘In the case of the self-protective search for
weapons, [the officer] must be able to point to particular
facts from which he reasonably inferred that the individ-
ual was armed and dangerous. . . . The officer need
not be absolutely certain that the individual is armed;
the issue is whether a reasonably prudent [person] in
the circumstances would be warranted in the belief that
[the officer’s] safety or that of others was in danger.
. . . And in determining whether the officer acted rea-
sonably in such circumstances, due weight must be
given . . . to the specific reasonable inferences which
[the officer] is entitled to draw from the facts in light
of [the officer’s] experience.’’ (Citation omitted; internal
quotation marks omitted.) State v. Nash, supra, 278
Conn. 631–32.
Again, the totality of the circumstances supports a
finding that the officers reasonably believed that the
defendant may have been armed and dangerous. Before
the patdown, Rizzitello observed a bulge in the defen-
dant’s front left pocket, indicating that he may have
been carrying a weapon. This fact alone constitutes
strong justification for a patdown. See Pennsylvania
v. Mimms, 434 U.S. 106, 112, 98 S. Ct. 330, 54 L. Ed. 2d
331 (1977) (bulge in defendant’s jacket ‘‘permitted the
officer to conclude that [the defendant] was armed and
thus posed a serious and present danger’’); see also
United States v. Hamilton, 978 F.2d 783, 785 (2d Cir.
1992) (patdown was justified after officer observed
unidentifiable bulge in defendant’s pants).
Additionally, the officers had reason to suspect the
defendant of committing a serious crime—namely, set-
ting a house on fire while someone was inside—in broad
daylight, and then fleeing the scene. These facts support
the officers’ reasonable belief that they may have been
dealing with an armed and dangerous felon. See United
States v. Edwards, 53 F.3d 616, 618 (3d Cir. 1995) (pat-
down of individual suspected of credit card fraud was
reasonable because crime occurred ‘‘in broad daylight,’’
which could ‘‘lead [the officer] to believe that the perpe-
trators might have armed themselves to facilitate their
escape if confronted’’).
The defendant further argues that the patdown was
illegal because the defendant was cooperative and
already handcuffed by Rizzitello prior to being patted
down. Our Supreme Court, however, as well as federal
courts, have held that a handcuffed suspect may still
present a danger to the police. See United States v.
Wallen, 388 F.3d 161, 166 (5th Cir. 2004), (rejecting
argument that suspect in handcuffs does not present
danger to police), cert. denied, 544 U.S. 967, 125 S. Ct.
1747, 161 L. Ed. 2d 613 (2005); see also State v. Nash,
supra, 278 Conn. 645–48 (patdown conducted in lobby
of police station while defendant was handcuffed was
valid). Thus, the fact that the defendant was handcuffed
during the patdown does not automatically render it
unlawful.
Likewise, the defendant’s cooperation did not under-
mine the legality of the patdown. Certainly, a suspect’s
refusal to cooperate, as well as hostile, evasive behav-
ior, may further support an officer’s belief that a suspect
is armed and dangerous. See State v. Mann, 271 Conn.
300, 324, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949,
125 S. Ct. 1711, 161 L. Ed. 2d 527 (2005). That does not
mean, however, that the inverse is necessarily true—
that a suspect’s cooperation eliminates the officer’s
belief that the suspect is armed and dangerous. In the
present case, there were other facts present that justi-
fied the patdown, such as the fact that Rizzitello
observed a bulge in the defendant’s pocket, and the
serious and possibly violent nature of the crime. We
therefore conclude that the limited patdown of the
defendant for weapons was proper.
C
Having determined that the investigatory stop and
subsequent patdown of the defendant were proper, we
conclude that the seizure of the matchbox found in the
defendant’s front left pocket, as well as the defendant’s
sweatshirt and umbrella, was also warranted. It is well
established that ‘‘[t]he results of the initial [investiga-
tory] stop may arouse further suspicion or may dispel
the questions in the officer’s mind. If the latter is the
case, the stop may go no further and the detained indi-
vidual must be free to go. If, on the contrary, the officer’s
suspicions are confirmed or are further aroused, the
stop may be prolonged and the scope enlarged as
required by the circumstances.’’ (Internal quotation
marks omitted.) State v. DelValle, 109 Conn. App. 143,
155, 950 A.2d 603, cert. denied, 289 Conn. 928, 958 A.2d
160 (2008). Therefore, as the trial court correctly noted,
it was reasonable for the police to enlarge the scope
of the search by detaining the defendant for a showup
identification and seizing the items he was carrying
after discovering that he was in possession of matches
and had just come from 52 Highland Road, the location
of a suspected arson.
Finally, because we conclude that the officers law-
fully conducted an investigatory stop and patdown, the
defendant’s claim that his subsequent statements
should not have been admitted because they constitute
the ‘‘fruit of the poisonous tree’’ necessarily fails. To
the extent that the defendant argued to the trial court
that the statements were also inadmissible because they
resulted from an unlawful custodial interrogation, he
has not advanced that claim on appeal.
II
The defendant next claims that the trial court violated
his right to a fair trial and to the assistance of counsel
by compelling him to disclose, prior to trial, the opinions
of his expert witness. We disagree.
The following additional facts are relevant to the
resolution of the defendant’s claim. On October 8, 2015,
the state filed a discovery motion invoking Practice
Book §§ 40-265 and 40-276 in which it requested that the
defendant disclose in writing ‘‘any reports or statements
of experts made in connection with the case’’ as well
as any other ‘‘relevant material and information not
covered by Practice Book [§] 40-26 which the judicial
authority determines [on] good cause should be
made available.’’
In response to the state’s motion, the defendant filed
a disclosure identifying Michael K. Higgins, Sr., as his
expert witness. The defendant’s disclosure also stated
the various topics to which Higgins would testify,
including the origin and cause of the fire, burn pattern
recognition, and flammability of the materials involved,
among other topics. The disclosure, however, did not
provide any substantive information beyond the list
of topics.
On January 8, 2016, the state filed a motion in limine
to preclude Higgins from testifying until the sum and
substance of his testimony was disclosed to the state.
In its motion, the state posed six questions in response
to the topics listed by the defendant, such as whether
Higgins disagreed with the state investigators that the
fire was incendiary in nature, and Higgins’ opinion as
to the origin and cause of the fire. The defendant did
not respond.
On January 12, 2016, the court first addressed the
state’s motion in limine. The state argued that it was
entitled to have ‘‘some idea of what . . . particularly
the person is going to be testifying to . . . .’’ The
defense responded that it was not required to provide
an expert report because Higgins had not written one.
The court postponed deciding the state’s motion in
the hope that the parties would resolve the dispute
without its intervention. The court advised the parties
that if they had not come to an agreement by January
14, 2016, then it would set a date for Higgins to appear in
court to disclose the sum and substance of his testimony
regarding the cause and origin of the fire. On January
13, 2016, the court again addressed the state’s motion,
during which it repeated its warning that ‘‘if you don’t
[come to an agreement], then either Friday of this week
or Tuesday of next week . . . your expert should be
here and we’ll have a hearing outside the presence of
the jury, and we’ll take it from there.’’
On January 14, 2016, the parties told the court that
the defense had agreed to file a written response to the
state’s motion, including answers to the six questions
posed therein. On January 15, 2016, the state reported
that the defendant’s response to its motion in limine
failed to provide any substantive information regarding
Higgins’ testimony. The defense responded that it was
‘‘unprecedented in a criminal case that [the defense
was] being required to answer interrogatories,’’ and that
it was not required to reveal its strategy to the state or
provide ‘‘insight into the defense mind . . . .’’
The state responded that the questions in its motion
in limine were not interrogatories, but rather necessary
follow-up questions to the initial skeletal disclosure by
the defense. The state further responded that it simply
needed to have some understanding of the substance
of Higgins’ testimony so that it could avoid needing to
request a lengthy continuance in the middle of the trial.
The court then ordered Higgins to appear on January
19, 2016, so the defense could make an offer of proof
regarding his testimony.
Higgins, however, did not appear in court as ordered.
Rather, the defendant filed a supplemental disclosure
on that date, which included very brief responses to
each of the six questions posed in the state’s motion
in limine. The court advised the defendant that because
he failed to provide the ‘‘sum and substance of what
[Higgins] was going to testify about on various points,’’
it was going to ‘‘consider either preventing [Higgins]
from testifying at all or limiting his testimony.’’ The
court did not at any point, however, order Higgins to
generate an expert report.
The next day, the defense unexpectedly provided the
state with a report prepared by Higgins containing his
opinion as to the cause and origin of the fire. Higgins
was subsequently qualified as an expert witness and
testified for the defense during its case-in-chief.
The defendant argues that the court’s actions
‘‘coerced the defendant’s disclosure of information
regarding the anticipated testimony of his expert wit-
ness well in excess of what the rules of practice require
him to produce.’’ The defendant further argues that the
court left him no choice but to direct Higgins to draft
a report for the ‘‘benefit of the state.’’ We disagree.
We first turn to ascertaining the appropriate standard
of review for this claim. The defendant asserts that
the court impaired his ability to present a defense and
compelled him to disclose his trial strategy prematurely,
which diluted his right to the assistance of counsel.
Accordingly, the defendant contends, we should exer-
cise plenary review of his claim because it is of constitu-
tional magnitude. For the following reasons, we
disagree that the court’s actions in compelling the
defendant to disclose prior to trial the substance of the
opinions of his expert witness implicated his constitu-
tional rights and conclude that the defendant is simply
attempting to clothe a nonconstitutional claim in consti-
tutional garb. See, e.g., State v. Romero, 269 Conn. 481,
505, 849 A.2d 760 (2004).
First, the defendant concedes, as he must, that Hig-
gins’ testimony was not limited or precluded in any
way and that he was ‘‘ultimately allowed to present his
defense in full with the aid of his expert’s testimony.’’
Instead, the defendant argues, in essence, that he has a
constitutional right to present expert testimony without
first disclosing to the state any of the substance of his
expert’s opinion.
The defendant cites no authority—nor could we find
any—that supports his assertion. In fact, the few cases
the defendant does rely on only serve to reinforce our
conclusion that the court’s order in no way implicated
the defendant’s constitutional rights. With respect to
his argument that the court’s actions intruded on his
constitutional right to present a defense, the defendant
cites cases that discuss the court’s exclusion of certain
evidence at trial. See, e.g., State v. West, 274 Conn.
605, 622, 626–27, 877 A.2d 787 (trial court’s ruling that
unidentifiable fingerprints were inadmissible did not
violate defendant’s constitutional right to present
defense), cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163
L. Ed. 2d 601 (2005); State v. Cerreta, 260 Conn. 251,
259–63, 796 A.2d 1176 (2002) (trial court’s exclusion of
exculpatory hair and fingerprint evidence violated the
defendant’s constitutional right to present defense);
State v. Carter, 228 Conn. 412, 416–17, 426–27, 636 A.2d
821 (1994) (trial court’s exclusion of victim’s criminal
record that supported defendant’s claim of self-defense
violated defendant’s constitutional right to present
defense). As we have noted repeatedly, however, Hig-
gins’ testimony was not precluded, nor limited, in any
way, and the defendant himself concedes that he was
able to present his defense in full. ‘‘A defendant may
not successfully prevail on a claim of a violation of his
right to present a defense . . . if [the defendant] ade-
quately has been permitted to present the defense by
different means.’’ State v. Santana, 313 Conn. 461, 470,
97 A.3d 963 (2014). Therefore, his argument fails.
With respect to his assertion that the trial court
infringed on his sixth amendment right to the assistance
of counsel, the defendant relies heavily on State v. Len-
arz, 301 Conn. 417, 22 A.3d 536 (2011). In that case,
the state obtained and reviewed extensive privileged
communications between the defendant and his attor-
neys outlining the defense trial strategy, including how
the defense planned to undermine the complaining wit-
ness’ credibility. Id., 421, 444–46. The state then used
those privileged communications to ‘‘anticipate and
thereby neutralize’’ potential weaknesses in the com-
plainant’s testimony and avoid ‘‘what otherwise might
have been a devastating cross-examination of that wit-
ness.’’ Id., 446.
In the present case, unlike in Lenarz, the state did not
obtain any privileged material. The defendant himself
acknowledges this. Moreover, the defendant cites no
case law that suggests that, absent facts similar to those
in Lenarz, disclosure of an expert witness’ opinion prior
to trial violates the defendant’s right to assistance of
counsel.
Our appellate courts have repeatedly held that ‘‘[t]he
sixth amendment does not confer the right to present
testimony free from the legitimate demands of the
adversary system. . . . The adversary system of trial
is hardly an end in itself; it is not . . . a poker game in
which players enjoy an absolute right always to conceal
their cards until played. We find ample room in that
system [for a rule that] is designed to enhance the
search for truth in the criminal trial by insuring both
the defendant and the State ample opportunity to inves-
tigate certain facts crucial to the determination of guilt
or innocence.’’ (Citation omitted; internal quotation
marks omitted.) State v. Boucino, 199 Conn. 207, 213,
506 A.2d 125 (1986). Accordingly, we conclude that the
court’s actions did not implicate the defendant’s right
to the assistance of counsel and that plenary review is
not appropriate.
Instead, we emphasize that ‘‘[t]he purpose of criminal
discovery is to prevent surprise and to afford the parties
a reasonable opportunity to prepare for trial.’’ (Internal
quotation marks omitted.) State v. Wilson F., 77 Conn.
App. 405, 419, 823 A.2d 406, cert. denied, 265 Conn. 905,
831 A.2d 254 (2003). To that end, ‘‘[t]he trial court has
broad discretion in applying sanctions for failure to
comply with discovery orders.’’ (Internal quotation
marks omitted.) State v. Colon, 71 Conn. App. 217, 241,
800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d
1067 (2002); Practice Book § 40-5. We review the court’s
actions in managing discovery pursuant to the abuse
of discretion standard. State v. Colon, supra, 241–42.
Moreover, if the defendant has properly character-
ized his claim as one concerning the admissibility of
expert witness testimony, ‘‘[w]e [also] review a trial
court’s decision [regarding the admission of] expert
testimony for an abuse of discretion. . . . We afford
our trial courts wide discretion in determining whether
to admit expert testimony and, unless the trial court’s
decision is unreasonable, made on untenable grounds
. . . or involves a clear misconception of the law, we
will not disturb its decision.’’ (Internal quotation marks
omitted.) State v. Edwards, 325 Conn. 97, 123, 156 A.3d
506 (2017).
We turn then to the ultimate question of whether
the trial court abused its discretion in compelling the
defendant to disclose prior to trial the substance of the
opinions of his expert witness. We conclude that it
did not.
The state’s discovery motion invoked Practice Book
§§ 40-26 and 40-27. Practice Book § 40-27 expressly
authorizes the court to ‘‘direct the defendant to disclose
in writing to the prosecuting authority . . . relevant
material and information . . . which the judicial
authority determines on good cause shown should be
made available.’’ (Emphasis added.) Therefore, even if
the court had ordered the defendant to disclose in writ-
ing the expert opinions that he intended to offer through
the testimony of Higgins, the court would have been
authorized in doing so.
The court, however, never actually ordered the defen-
dant to make any written disclosures. Indeed, the record
shows that the court would have preferred that it not
get involved in the discovery dispute at all. The court
repeatedly instructed the defendant and the state to
resolve the issue without court interference. It was only
after it became apparent as a result of the defendant’s
continued incremental and incomplete disclosures that
the parties would not be able to resolve the dispute
that the court ordered Higgins to appear to make an
offer of proof outside the presence of the jury. More-
over, after the defendant voluntarily supplied Higgins’
report, the court did not have to conduct the offer of
proof or make a finding of good cause. Thus, the issue
resolved itself.
The defendant relies on State v. Genotti, 220 Conn.
796, 601 A.2d 1013 (1992), for the proposition that Prac-
tice Book § 40-26—which contains the language pre-
viously set forth in former Practice Book § 769, the
provision at issue in that case—does not require a defen-
dant’s expert witness to prepare a report or statement
in anticipation of trial. Id., 808–809. In Genotti, our
Supreme Court held that the trial court improperly
excluded the testimony of the defendant’s expert wit-
ness after the witness failed, pursuant to court orders,
to create a report summarizing the results of various
tests he had conducted in preparation for trial. Id.,
803, 808–809.
The defendant is correct that Practice Book § 40-26,
like former § 769, does not require an expert to generate
a report if he or she has not already done so. In the
present case, however, the state also invoked § 40-27,
which, unlike § 40-26, does in fact authorize a court to
order a defense expert to provide certain information,
in writing, to the state. More importantly, in the present
case, the court neither (1) ordered Higgins to generate
a report, nor (2) precluded Higgins’ testimony. Thus,
Genotti is not controlling here.
In sum, it is well established that the court has ‘‘broad,
general authority to act to maintain the orderly proce-
dure of the [proceeding], and to prevent any interfer-
ence with the fair administration of justice.’’ (Internal
quotation marks omitted.) Carmon v. Commissioner
of Correction, 148 Conn. App. 780, 786, 87 A.3d 595
(2014). The court was therefore authorized in ordering
Higgins to appear to make an offer of proof to obviate
the need, in the middle of trial, for the state to request
a continuance in order to prepare its cross-examination,
recall its own expert to testify regarding the opinions
offered by Higgins, and/or request a Porter7 hearing.
We are unpersuaded that the court abused its discretion
in any manner.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Ortiz initially did not know that this person was the defendant, her
landlord. Shortly after the police had taken the defendant into custody,
however, she identified the defendant at a street showup identification
procedure as the same person who had run from 52 Highland Road. At trial,
she identified the defendant as her landlord.
2
Additional facts regarding the investigatory stop and subsequent patdown
will be set forth in part I of this opinion.
3
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
4
We note that our appellate courts ‘‘repeatedly [have] observed that the
language of article first, § 7, of the state constitution closely resembles the
language of the fourth amendment to the federal constitution. . . . In light
of this textual similarity, it is not surprising that . . . we consistently have
recognized that, in determining whether article first, § 7, has been violated,
we employ the same analytical framework that would be used under the
federal constitution.’’ (Citation omitted; footnote omitted; internal quotation
marks omitted.) State v. Kelly, 313 Conn. 1, 15, 95 A.3d 1081 (2014).
5
Practice Book § 40-26 provides in relevant part that ‘‘[u]pon written
request by the prosecuting authority . . . the defendant . . . shall . . .
disclose in writing to the prosecuting authority the existence of and make
available for examination . . . the following items . . .
‘‘(2) [a]ny reports or statements of experts made in connection with the
case, including results of physical or mental examinations and of scientific
evidence at trial or relating to the anticipated testimony of a person whom
the defendant intends to call as a witness.’’
6
Practice Book § 40-27 provides in relevant part that ‘‘[u]pon written
request by a prosecuting authority . . . the judicial authority may direct
the defendant to disclose in writing . . . any other relevant material and
information not covered by Section 40-26 which the judicial authority deter-
mines on good cause shown should be made available.’’
7
See State v. Porter, 241 Conn. 57, 80–90, 698 A.2d 739 (1997), cert. denied,
523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).