181 Conn. 187 (1980) | Cited 100 times | Supreme Court of Connecticut | June 10, 1980

After a trial to the jury,the defendant Daryl Ruth was found guilty offelony murder under General Statutes 53a-54c. Thedefendant has appealed from the judgment renderedand claims that the trial court erred: (1) indenying his motion to suppress a writtenconfession that was allegedly obtained as theresult of his illegal arrest; (2) in refusing tocharge as requested on the matter of accomplicetestimony; and (3) in its charge to the jury onthe element of intent. This last claim of error isbased upon the United States Supreme Courtdecision in Sandstrom v. Montana, 442 U.S. 510, 99S.Ct. 2450, 61 L.Ed.2d 39 (1979).

From the evidence presented, the jury could havefound the following relevant facts: On December 9,1976, the defendant, David Coward, and DannyMiller went to a grocery store in Bridgeport operatedby the victim, Telefordo Diaz, with theintention of committing a robbery. The defendantand Coward entered the Diaz store while Milleracted as the lookout. Both Coward and Miller testifiedat the trial. Coward testified that in the course ofthe robbery the defendant shot the victim with asawed-off shotgun. A statement the defendant made tothe police after being arrested for the crime wasalso introduced at the trial. In that statement, the

[181 Conn. 189]

     defendant admitted entering the victim's store onthe evening of December 9, 1976, with theintention of committing a robbery. He also statedthat he fired his gun, although he claimed thatCoward, and not he, shot the victim with theshotgun. The pathologist who performed the autopsyon the victim testified that both a gunshot woundand a bullet wound had been inflicted and that theloss of blood from the gunshot wound was the causeof death.


We consider first the defendant's claim that thetrial court erred in denying his motion to suppressthe confession that he gave to the police.

On December 13, 1976, information given to theBridgeport police by the accomplice Danny Millerdirectly implicated the defendant in the Diazhomicide. The defendant claims, and the statedoes not dispute, that, on the basis of thisinformation, the police had probable cause tobelieve that the defendant had been a participantin a felony murder. On December 14, 1976, a searchwarrant for the apartment where the defendantresided was obtained by the police from a judge ofthe Court of Common Pleas. On December 17, 1976,at approximately 9 a.m., Inspector Anthony P.Fabrizi, who was in charge of the homicideinvestigation, went to the defendant's apartmentto execute the search warrant. In the process ofdoing so, the police discovered that the defendantwas in the apartment and proceeded to arrest him.After the defendant had been arrested, a search ofthe apartment was completed by other officers who hadaccompanied Fabrizi. The defendant was taken to policeheadquarters. A "Notification of Rights" form was

[181 Conn. 190]

     signed by the defendant at 9:45 a.m. And at 10:15a.m. the defendant gave the statement introducedat his trial.

The defendant claims that the trial court erredin denying his motion to suppress the confessionon the ground that it was obtained as the resultof an illegal arrest. We do not agree. Thedefendant argues that because he was arrestedwithout an arrest warrant, which was constitutionallymandated under the circumstances, and his confessionwas so causally connected to the illegal arrest,the fourth amendment of the United States constitutionrequired its suppression at his trial. See Dunawayv. New York, 442 U.S. 200, 99 S.Ct. 2248, 2259, 60L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590,602-604, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975);Wong Sun v. United States, 371 U.S. 471, 487-88,83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The defendantasserts that General Statutes 54-1f,1 which permitsthe warrantless arrest of a person when there is

[181 Conn. 191]

     probable cause to believe he has committed afelony, and upon which the state relies, cannotauthorize what the fourth amendment prohibits.Relying on United States v. Reed, 572 F.2d 412 (2dCir. 1978),2 and, in turn, its support fromCoolidge v. New Hampshire, 403 U.S. 443, 459-60,91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the defendantclaims that because he was arrested in his home, theexistence of exigent circumstances is the only basisupon which his arrest could be constitutionallyvalid.3 Since the police had probable cause tobelieve that the defendant was directly implicatedin the homicide on December 13, 1976, and therewas concededly no fear of his flight, thedefendant asserts that there were no exigentcircumstances to justify his arrest and that thearrest was, therefore, illegal.

The constitutional authority of the police toarrest a felony suspect in his home upon probablecause but without an arrest warrant or exigentcircumstances has been recently considered by theUnited States Supreme Court in Payton v. New York,445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).4

[181 Conn. 192]

     In that case, the court concluded that an arresteffected by the nonconsensual entry of the policeinto a suspect's dwelling, absent a warrant or"exigent circumstances,"5 violated the fourthamendment's prohibition against unreasonableseizures. Id., 4380. In so doing, the courtoverruled the decision of the New York Court ofAppeals, which had concluded that there was a"substantial difference" between police intrusionto search a home and police intrusion to arrest aresident. People v. Payton, 45 N.Y.2d 300, 310,380 N.E.2d 224 (1978). This difference, togetherwith other factors, said the Court of Appeals,justified warrantless entries into a suspect'shome to arrest even though entries to conduct aroutine search had to be accompanied by a searchwarrant under the fourth amendment. Id., 310-11.The Supreme Court disagreed and adopted the reasoningexpressed in Dorman v. United States,435 F.2d 385, 390-91 (D.C. Cir. 1970), by stating that"an entry to arrest and an entry to search for andto seize property implicate the same interest inpreserving the privacy and the sanctity of thehome, and justify the same level of constitutionalprotection." Payton v. New York, supra, 588.It went on to say that "any differences in theintrusiveness of entries to search and entries toarrest are merely ones of degree rather than kind.The two intrusions share this fundamental characteristic:the breach of the entrance to an individual's home." Ibid.The court concluded: "In terms that apply equally to

[181 Conn. 193]

     seizures of property and to seizures of persons,the Fourth Amendment has drawn a firm line at theentrance to the house." Id., 4380.

Although the court in Payton was not presentedwith the facts of the case before us, theunmistakable message conveyed in Payton is that,absent consent to entry or exigent circumstances,a judicial determination of probable cause muststand in between the police and the door of aperson's home, whether the object of an entry isto search and seize or to arrest. The evil to beguarded against is the unreasonable intrusion intothe sanctity of a person's home. Once a searchwarrant is obtained and the entry is lawful,however, the police are where they have a right tobe and may arrest a resident, provided they haveprobable cause to do so, under the authority ofGeneral Statutes 54-1f.6

An analogous situation is presented where policeofficers executing a valid search warrant seizeitems in "plain view" that are not, however,included in the items enumerated in the searchwarrant. The doctrine that permits such seizuresis based upon the premise that the police need notignore incriminating evidence in plain view whilethey are operating within the parameters of avalid search warrant or are otherwise entitled tobe in a position to view the items seized. SeeHarris v. United States, 390 U.S. 234, 236, 88S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v.Watson, 165 Conn. 577, 587, 345 A.2d 532 (1973);see annot., 29 L.Ed.2d 1067. In Coolidge v. NewHampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29L.Ed.2d 564 (1971), the Supreme Court stated:

[181 Conn. 194]

     "What the `plain view' cases have in common isthat the police officer in each of them had aprior justification for an intrusion in the courseof which he came inadvertently across a piece ofevidence incriminating the accused. The doctrineserves to supplement the prior justification . . .and permits the warrantless seizure.7 The courtjustified the doctrine by stating: "Where, once anotherwise lawful search is in progress, the policeinadvertently come upon a piece of evidence, itwould often be a needless inconvenience, andsometimes dangerous - to the evidence or to thepolice themselves - to require them to ignore ituntil they have obtained a warrant particularlydescribing it." Id., 467-68; see also 2 LaFave,Search and Seizure, A Treatise on the FourthAmendment (1978) 4.11.

The police in the case before us were in thedefendant's home pursuant to a valid search warrantissued by a neutral and detached magistrate.After entering to execute that warrant, the policediscovered the presence of the defendant.8Inasmuch as the police had already lawfully enteredthe defendant's home, it would be a fruitless exerciseto require them to obtain another warrant authorizingtheir re-entry of the home to arrest the defendant,who they had probable cause to believe hadcommitted a felony. Moreover, were such a procedurerequired, the police, as in the case of the

[181 Conn. 195]

     inadvertent discovery of incriminating evidence,would run the real risk that during the time thatit takes to obtain an arrest warrant a suspectmight flee, having been alerted that he has becomethe focus of police investigation.

We conclude that, as a matter of constitutionallaw, where the police enter a dwelling for thepurpose of conducting a search pursuant to a validsearch warrant, they may arrest a resident withinthat dwelling who they have probable cause tobelieve has committed a felony pursuant to GeneralStatutes 54-1f. Hence, the defendant's arrest didnot violate the fourth amendment and the court'srefusal to suppress the confession made followingthat arrest was proper.9


The defendant claims that the court erred inrefusing to charge the jury on the manner inwhich they should evaluate the credibility of thetwo self-confessed accomplices in the crime whotestified against him. The state concedes thetrial court's error, and properly so. Both Coward,who entered the store with the defendant, andMiller, who remained in the automobile used in therobbery, admitted their complicity in the crime.Miller was never arrested or charged with any offensearising from the incident, however. Coward had beenconvicted of felony murder prior to the defendant'strial and was awaiting sentencing. Although thestate had informed him that it would recommend

[181 Conn. 196]

     a sentence of eighteen years to life on the murderconviction, Coward testified at the defendant'strial that he was hoping to receive a more lenientsentence in return for his testimony. This courthas recently said that "where warranted by theevidence, it is the court's duty to caution thejury as to the testimony of an accomplice in itscharge." State v. Ferrara, 176 Conn. 508, 511,408 A.2d 265 (1979); see also Bruton v. United States,391 U.S. 123, 136, 88 S.Ct. 1620, 20 L.Ed.2d 476(1968); State v. Colton, 174 Conn. 135, 140,384 A.2d 343 (1977); 3 Wharton, Criminal Evidence(13th Ed.) 645. Because of the various motives anaccomplice may have for falsifying his testimony,the jury Should, where the evidence so warrants,be admonished to scrutinize that testimony withparticular care in light of any such disclosed orundisclosed, but apparent, motives. See State v.Ferrara, supra, 512. The evidence in this casewarranted such an instruction, and the defendanthad filed two requests to charge relating to thetestimony of the accomplices. The court's failureto charge on the subject was clearly in error.

We must now determine whether the court's errorin this regard was so prejudicial to the rights ofthe defendant as to deprive him of a fair trial,and so, to constitute harmful error. See State v.Daniels, 180 Conn. 101, 111, 429 A.2d 813 (1980);State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095(1977); State v. L'Heureux, 166 Conn. 312, 324,348 A.2d 578 (1974). Stated another way, thequestion is "whether the claimed erroneous actionof the court would have been likely to affect theresult." State v. McClain, 171 Conn. 293, 300,370 A.2d 92.8 (1976); see State v. Tropiano, 158 Conn. 412,427, 262 A.2d 147, cert. denied, 398 U.S. 949,

[181 Conn. 197]

     90 S.Ct. 1866, 26 L.Ed.2d 288 (1969). We notethat the defendant's claim does not involve theviolation of a constitutional right and, hence,the burden rests upon the defendant to demonstratethe harmfulness of the court's error. See State v.Pepe, 176 Conn. 75, 81, 405 A.2d 51 (1978); Statev. Sorbo, 174 Conn. 253, 257, 386 A.2d 221 (1978);cf. Chapman v. California, 386 U.S. 18, 24, 26, 87S.Ct. 824, 17 L.Ed.2d 705 (1967) (where constitutionalright violated by the trial court, burdenrests upon the state to demonstrate that the errorwas "harmless beyond a reasonable doubt").

We have concluded that it is not likely that theerror involved here affected the result and,therefore, that it did not rise to the level ofdepriving the defendant of a fair trial. Ourconclusion rests upon several factors. Theprincipal consideration upon which it is based isthe overwhelming nature of the evidence whichcorroborated the accomplice testimony. Thatevidence consists of the defendant's confessioncoupled with proof of the corpus delicti. Wherethe authenticity and reliability of a confessionare established, "it is certainly true that wehave before us the highest sort of evidence." 3Wigmore, Evidence (Chadbourn Ed.) 820b, p. 303.The defendant has not challenged either theauthenticity or the reliability of the statementhe made to the police. The confession was clearand detailed and without any self-contradiction.In it the defendant acknowledged the participants'joint objective of committing a robbery in thevictim's grocery store on the evening of December9, 1976, and that the victim was shot in thecourse of that robbery. Defendant's confessionconflicts with Coward's testimony only to theextent that each claimed to have fired the.32 caliber pistol, a bullet from which

[181 Conn. 198]

     inflicted only a minor wound on the victim, andasserted that the other fired the sawed-offshotgun, the discharge from which caused thevictim's fatal injury. In view of the offense(felony murder) of which the defendant wasconvicted, however, this divergence of accounts isof no consequence. The defendant's confession"covered all of the essential elements of thecrime charged." State v. Doucette, 147 Conn. 95,98, 157 A.2d 487 (1959); see General Statutes 53a-54c.

The confession cannot stand alone, however,but must be accompanied by sufficient evidenceof the corpus delicti. See State v. Doucette,supra, 99; State v. Tillman, 152 Conn. 15, 20,202 A.2d 494 (1964). In Tillman, we adopted ProfessorWigmore's definition of the term "corpus delicti,"and stated: "The corpus delicti consists of theoccurrence of the specific kind of loss or injuryembraced in the crime charged." Id., 20. Where ahomicide is charged, "the corpus delicti is thefact of the death, whether or not feloniouslycaused, of the person whom the accused is chargedwith having killed or murdered." Ibid., quoting 7Wigmore, Evidence (3d Ed.) 2072. The confession,then, as evidence tending to prove both the crimecharged and the corpus delicti, is not sufficientof itself to prove the former, and without evidencealiunde of facts tending to prove the corpus delicti,is not enough to warrant a conviction. There mustbe such extrinsic corroborative evidence as will,when viewed in connection with the confession, establishthe corpus delicti (fact of death) in the mind of thetrier beyond a reasonable doubt. See State v. Doucette,supra, 99, as qualified by State v. Tillman, supra, 20.

[181 Conn. 199]

In this case, there was more than ample evidenceof the corpus delicti. Ahmas Haghighat, a pathologist,performed an autopsy on the victim andtestified that he died primarily from a massiveloss of blood sustained as the result of a gunshotwound that severed his femoral artery. Thedefendant's confession, which is the most damagingevidence of guilt; State v. Vaughn, 171 Conn. 454,460, 370 A.2d 1002 (1976); together with evidenceof the corpus delicti and the accomplicetestimony, constitute overwhelming evidence ofguilt. See State v. Paluga, 171 Conn. 586, 596,370 A.2d 1049 (1976); State v. Taborsky, 139 Conn. 475,482-83, 95 A.2d 59 (1953); State v. Guastamachio,137 Conn. 179, 181-82, 75 A.2d 429 (1950); cf. Statev. Sorbo, 174 Conn. 253, 257, 386 A.2d 221 (1978).

Where accomplice testimony is corroborated bysubstantial independent evidence of guilt and isnot the sole basis of the government's case, it isconsistently held in the federal courts> that thetrial court's failure to give a cautionaryinstruction does not provide grounds for a newtrial. See annot., "Necessity of, and PrejudicialEffect of Omitting, Cautionary Instruction to Juryas to Accomplice's Testimony Against Defendant inFederal Criminal Trial," 17 A.L.R. Fed. 249, 6-10and cases there cited. A strong line of authorityto the same effect may be found in the decisionsof state courts>. See, e.g., People v. Terry,2 Cal.3d 362, 466 P.2d 961 (1970), cert. dismissed,406 U.S. 912, 92 S.Ct. 1619, 32 L.Ed.2d 112 (1972)(corroborating evidence included confession);People v. Powell, 53 Ill.2d 465, 292 N.E.2d 409(1973) (corroborating evidence includedconfession); People v. Ahmeti, 28 A.D.2d 1195,284 N.Y.S.2d 951 (1967) (corroboratingevidence included confession).

[181 Conn. 200]

We also base our conclusion on the followingadditional factors: the consistency of thetestimony of the two accomplices and thedefendant's confession, except in the matter notedabove; cf. Tillery v. United States, 411 F.2d 644,646-47 (5th Cir. 1969); the accomplices' potentialmotives for falsifying their testimony werebrought to the jury's attention during the courseof the trial; and the instructions given by thecourt to the jury did suggest that these witnessesmight have an interest in "coloring" theirtestimony.10 In view of the overwhelming evidenceof guilt and these additional considerations, wecannot say that the trial court's error deprivedthe defendant of a fair trial.


We turn briefly to the defendant's claim thatthe court's instructions on the element of intentviolated the principles set out by the UnitedStates Supreme Court in Sandstrom v. Montana,442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Asthe defendant concedes, the challenged language ofthe charge related only to that portion dealingwith the lesser crime of manslaughter in the firstdegree. See General Statutes 53a-45 (c), 53a-55(a)(1). Indeed, it is significant that thedefendant has not attacked any of the instructionson intent insofar as they relate to the crime ofwhich he was found guilty. Moreover, there is noindication that the instructions concerningmanslaughter in the first degree could have beenunderstood by the jury to apply to theinstructions on felony murder. Cf.

[181 Conn. 201]

     State v. Arroyo, 180 Conn. 171, 429 A.2d 457(1980). Inasmuch as the defendant was neverconvicted of manslaughter in the first degree, andhe raises no claim of error with respect to thecourt's instructions on the elements of the crimeof which he was convicted, any error that may havebeen committed by the court in this regard washarmless. See State v. Rogers, 143 Conn. 167, 177,120 A.2d 409, cert. denied, 351 U.S. 952, 76 S.Ct.850, 100 L.Ed. 1476 (1956).

There is no error.

In this opinion the other judges concurred.

1. General Statutes 54-1f (formerly 6-49)provides: "Sheriffs, deputy sheriffs, chiefinspectors and inspectors in the division ofcriminal justice, constables, borough bailiffs,police officers, special protectors of fish andgame and railroad and steamboat policemen, intheir respective precincts, shall arrest, withoutprevious complaint and warrant, any person for anyoffense in their jurisdiction, when such person istaken or apprehended in the act or on the speedyinformation of others, and members of the divisionof state police within the department of publicsafety or of any local police department or anychief inspector or inspector in the division ofcriminal justice shall arrest, without previouscomplaint and warrant, any person who such officerhas reasonable grounds to believe has committed oris committing a felony. Members of any localpolice department, when in immediate pursuit ofone who may be arrested under the provisions ofthis section, are authorized to pursue suchoffender outside of their respective precinctsinto any part of the state in order to effect thearrest. Such person may then be returned in thecustody of such officer to the precinct in whichthe offense was committed. Any person so arrestedshall be presented with reasonable promptnessbefore proper authority."

2. The Circuit Court in Reed held that "inthe absence of a warrant to arrest a suspect athome, and in the absence of exigent circumstances,federal law enforcement officers are prohibited bythe Fourth Amendment from entering the home of asuspect to effect a felony arrest for which theyotherwise have both statutory authority andprobable cause." United States v. Reed, 572 F.2d 412,424 (2d Cir. 1978).

3. The Second Circuit has said that "[t]he phrase`exigent circumstances' refers generally to thosesituations in which law enforcement agents will beunable or unlikely to effectuate an arrest, searchor seizure, for which probable cause exists,unless they act swiftly and without seeking priorjudicial authorization." United States v. Campbell,581 F.2d 22, 25 (2d Cir. 1978).

4. The Supreme Court decided Riddick v. NewYork together with Payton v. New York, both onappeal from the New York Court of Appeals; see45 N.Y.2d 300, 380 N.E.2d 224 (1978); as these casesinvolved the same fourth amendment issue.

5. In Payton, the court "as careful to pointout that it was addressing only" the narrow questionpresented by these appeals." Payton v. New York,445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639(1980). The majority noted in that regard that"[a]lthough it is arguable that the warrantlessentry to effect Payton's arrest might have beenjustified by exigent circumstances, none of theNew York relied on any such justification";ibid.; and that it would not do so either.

6. We conclude only that, under the facts ofthis case, General Statutes 54-1f does not operate inan unconstitutional manner or conflict with theholding of Payton v. New York, 445 U.S. 573, 100S.Ct. 1371, 63 L.Ed.2d 639 (1980).

7. The Supreme Court did point out in Coolidgethat "the `plain view' doctrine may not be used toextend a general exploratory search from oneobject to another until something incriminating atlast emerges." Coolidge v. New Hampshire, 403 U.S. 443,466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

8. The defendant suggests that the police,using the search warrant, entered his residencewith the "avowed intent to secure his arrest." Therecord does not support that claim, however. PracticeBook, 1978, 3060B.

9. Because of our conclusion on this ground,we need not determine whether the defendant'sconfession was so causally connected with hisarrest as to be the "fruit" of that arrest. SeeWong Sun v. United States, 371 U.S. 471, 487-88,83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. McLucas,172 Conn. 542, 556, 375 A.2d 1014, cert. denied,434 U.S. 855, 98 S.Ct. 174, 54 L.Ed.2d 126 (1977).

10. The

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