State v. Vaught

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STATE OF CONNECTICUT v. MATTHEW VAUGHT
(AC 35996)
Gruendel, Beach and West, Js.
Argued January 12—officially released May 5, 2015
(Appeal from Superior Court, judicial district of New
Haven, geographical area number seven, Oliver, J.)
Cody N. Guarnieri, with whom, on the brief, was
David K. Jaffe, for the appellant (defendant).
Lisa Herskowitz, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Seth R. Garbarsky, senior assistant
state’s attorney, for the appellee (state).
Opinion
WEST, J. The defendant, Matthew Vaught, appeals
from the judgment of conviction, rendered following a
jury trial, of attempt to possess one kilogram or more
of a cannabis-type substance with intent to sell by a
person who is not drug-dependent in violation of Gen-
eral Statutes §§ 53a-49 (a) (2) and 21a-278 (b), and crimi-
nal possession of a revolver in violation of General
Statutes § 53a-217c. On appeal, the defendant argues
that the court improperly (1) granted the state’s motion
for joinder of two cases against him and (2) denied his
motion to suppress evidence related to a warrantless
search of his home. We affirm the judgment of the
trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On June 10, 2011, members of the North Haven Police
Department, with the assistance of a trained canine
named Zeus, conducted a parcel interdiction at the
FedEx shipping facility in North Haven. During this
process, the police removed two packages from a con-
veyor belt for inspection.1 The packages had the same
FedEx tracking number and were addressed to Jennifer
Stewart, 110 Dexter Avenue in Meriden. Although the
shipping label indicated that the packages originated
in Jamaica, New York, FedEx was able to determine
that the packages originated in Phoenix, Arizona. A
senior manager with FedEx opened one of the pack-
ages, and it contained what was later determined to
be marijuana.2 At this point, the North Haven Police
Department contacted the statewide narcotics task
force, a division of the state police, which indicated
that it was going to conduct a controlled delivery of
the packages at 110 Dexter Avenue in Meriden.
Later that same day, Robert Lawlor, a sergeant with
the statewide narcotics task force, drove to 110 Dexter
Avenue in Meriden in a vehicle made to look like a
FedEx vehicle. Other members of the task force were
parked near that location conducting surveillance.
Upon arrival at 110 Dexter Avenue, Lawlor, dressed as
a FedEx delivery person, walked to the front door with
the packages and knocked on the door. When no one
answered, Lawlor left the packages and departed the
scene. A man identified as Nelson Johnson subse-
quently drove into the driveway, briefly went inside the
residence, and then came out and began to put the
packages in his vehicle. At this point, members of the
state police apprehended Johnson.
Johnson informed the police that he did not know
what was in the packages but was delivering them for
the defendant. The police asked Johnson to call the
defendant and to tell him that he had to come to the
residence to pick up the packages. Johnson complied,
and the defendant told Johnson to put the packages
under the back porch of the residence. When the defen-
dant arrived, he initially circled the neighborhood a few
times and then got out of his car, placed an envelope
in the mailbox, and knocked on the door. Two police
detectives opened the door and ordered the defendant
to put his hands up and get on the ground. When he
did not comply with these orders, one of the detectives
tasered the defendant, and he was taken into custody.
Once in custody, the defendant declined medical
attention and, upon inquiry, claimed to have no knowl-
edge of what was in the packages. The defendant indi-
cated that he resided on the second floor of a residence
located at 53 Sexton Street in New Britain. The defen-
dant verbally consented to a search of that residence
and signed a written consent form. The police then
transported the defendant to Meriden police headquar-
ters and proceeded to 53 Sexton Street in New Britain.
Upon arrival at 53 Sexton Street in New Britain, the
defendant’s mother-in-law consented to a search of the
second floor but informed the police that the defendant
lived on the first floor with his wife. While the police
were searching the second floor, the defendant’s wife
came home and informed the police that she lived on
the first floor of the residence and that the defendant
lived in the basement. Patrick Joseph Torneo, a master
sergeant with the statewide narcotics task force, then
called George DelMastro, a sergeant with the Meriden
Police Department, and asked him to clarify the consent
given by the defendant. DelMastro spoke with the defen-
dant, who indicated that he and his family lived on the
first and second floors, and that there had been a fire
on the third floor. The defendant indicated that he
owned the residence and informed DelMastro that the
police had his permission to search the whole house.
DelMastro then called Torneo and communicated this
consent to him. After receiving the call from DelMastro,
the police searched the basement at 53 Sexton Street
in New Britain and seized approximately $50,000 in
cash, a Ruger .357 caliber revolver, ammunition, and
digital scales and packaging material consistent with
that used by drug dealers to weigh marijuana or
other narcotics.
On the basis of the incident in Meriden, the defendant
was charged with attempt to possess one kilogram or
more of a cannabis-type substance with intent to sell
by a person who is not drug-dependent in violation of
§§ 53a-49 (a) (2) and 21a-278 (b), attempt to possess
more than four ounces of a controlled substance in
violation of General Statutes §§ 53a-49 and 21a-279 (b),
and interfering with an officer in violation of General
Statutes § 53a-167a (a). On the basis of the incident in
New Britain, the defendant was charged with posses-
sion of drug paraphernalia in violation of General Stat-
utes § 21a-267 and criminal possession of a revolver in
violation of § 53a-217c. Prior to trial, the court granted
the state’s motion for joinder of the Meriden and New
Britain cases for trial. The state then filed a five count
amended long form information that included both the
Meriden and New Britain charges. Following trial, the
defendant was convicted of attempt to possess one
kilogram or more of a cannabis-type substance with
intent to sell by a person who is not drug-dependent
based on the Meriden charges and criminal possession
of a revolver based on the New Britain charges.3 The
defendant then filed the present appeal.
I
The defendant first argues that the court abused its
discretion by granting the state’s motion for joinder of
the Meriden and New Britain cases for trial and denying
his motion for severance. We disagree.
The following additional facts are necessary for the
resolution of this issue. On March 11, 2013, the state
filed a motion for joinder of the Meriden and New Brit-
ain cases for trial. At a hearing on March 13, 2013,
defense counsel indicated that he was not prepared to
argue the joinder issue, as he had just received the
motion that morning. He also questioned the lateness
of the state’s motion, in light of the fact that the Meriden
case had been pending for approximately one year and
the motion for joinder was filed on the eve of trial. In
response, the prosecutor argued that the motion for
joinder was timely as the defendant’s motion for a
speedy trial was filed on February 22, 2013. The prose-
cutor also indicated that the parties had previously dis-
cussed the issue of transferring the New Britain case
to Meriden, but this had not occurred as the parties
could not reach an agreement. The court proceeded to
hear the merits of the motion for joinder, but indicated
to defense counsel that it would entertain a motion for
reconsideration should the defendant file such a
motion.
Following argument on the merits, the court granted
the motion for joinder. In doing so, the court noted that
the state had the burden of proving that the defendant
would not be substantially prejudiced by joinder. The
court further noted that the potential for prejudice
existed because a jury might consider a person charged
with so many crimes to be a bad person, and further
noted that a curative instruction might be necessary.
The court found that the state’s informations were of
the same character and that certain evidence might be
cross admissible. The court also considered the factors
set forth in State v. Boscarino, 204 Conn. 714, 722–24,
529 A.2d 1260 (1987), and ultimately concluded that
the joinder of the cases did not constitute substantial
prejudice to the defendant. Defense counsel immedi-
ately asked the court to reconsider its ruling, and the
court indicated that it would give counsel until the
following morning to research and argue the joinder
issue.4
The next day, defense counsel indicated that although
he had looked at State v. Payne, 303 Conn. 538, 34 A.3d
370 (2012), and State v. Boscarino, supra, 204 Conn.
714, he had not been able to do extended research as
he was suffering from a medical condition, and he,
therefore, requested permission to withdraw his motion
for a speedy trial. In response, the court noted that it
had not ‘‘seen any evidence of any compromised acuity’’
on the part of defense counsel. The court noted that
the defendant’s arrests seemed to be ‘‘if not factually
similar, factually identical, arising from the same trans-
action’’ and stated that it was ‘‘merely a matter of geog-
raphy that one case was brought in New Britain and
one case was brought in Meriden.’’ The court further
stated that ‘‘it certainly doesn’t seem to be anything
close to a close call on the issue of joinder. If [the
defendant] lived in Meriden, there wouldn’t be any
motion for joinder. It would be the same transaction.
And of course, they are clearly legally related.’’ The
court indicated that previously, in chambers, it had
offered defense counsel another day to supply a memo-
randum of law on the joinder issue, but counsel had
said that this was not enough time. The court ultimately
gave defense counsel until March 19, 2013 to prepare
a response or argument on the state’s motion for join-
der. In so ruling, the court noted that defense counsel
had represented the defendant from the beginning in
both cases and that the New Britain matter was also
on the jury list. The court also indicated that defense
counsel would have had notice that the state was going
to seek to have the cases tried together in light of the
state’s prior requests to transfer the New Britain matter
to Meriden.
On March 20, 2013, the court heard argument on the
defendant’s motion to reconsider joinder of the two
cases. At that time, defense counsel argued that the
state’s motion for joinder was filed on the eve of trial,
despite the fact that the cases had been pending for
approximately eighteen months. He claimed that
because of the joinder, the defendant was essentially
being forced to testify in one of the cases when he had
not planned to do so. Defense counsel also requested
permission to proceed with a jury trial on the Meriden
charges and a court trial on the New Britain charges.
Following argument, the court stated that there was no
substantial prejudice to the defendant as a result of the
joinder of the cases. The court found that the offenses
alleged were of the same character, and that they arose
or were related to the same course of conduct. The
court noted that it was the defendant’s strategic deci-
sion whether to testify, and that it would issue a curative
instruction if necessary. The court further found that
the evidence in both cases would likely be cross admis-
sible if the cases were tried separately, specifically not-
ing that the evidence in the New Britain case would
likely be admissible in the Meriden case regarding the
issue of intent. The court continued by noting that the
allegations were not of a violent nature and did not
concern brutal or shocking conduct by the defendant,
and that the charges were factually and legally related.
Finally, the court found that the defendant had suffi-
cient notice of the state’s desire for transfer or joinder.
Accordingly, the court did not change its decision
regarding joinder of the cases, and the cases proceeded
to trial.5
On appeal, the defendant argues that the court abused
its discretion by joining the Meriden and New Britain
cases. Specifically, the defendant argues that his attor-
ney was not given adequate notice of the motion for
joinder, or an adequate opportunity to argue the motion
and to prepare for trial. The defendant also argues that
the offenses should not have been joined pursuant to
State v. Boscarino, supra, 204 Conn. 714, and that the
joinder resulted in substantial prejudice, impacting the
essential fairness of his trial. The state argues in
response that the defendant’s claim is inadequately
briefed and, therefore, is unreviewable. If it is review-
able, the state argues that the court properly permitted
joinder because the evidence in the cases was cross
admissible in separate trials. Alternatively, the state
argues that the court properly concluded that joinder
was appropriate after applying the Boscarino factors.
We conclude that the defendant’s claim is reviewable,
but we agree with the state that the court properly
joined the cases because the evidence in the cases
would have been cross admissible in separate trials. In
light of this conclusion, we need not reach the issue of
whether the defendant has established the existence of
any of the Boscarino factors.
We initially consider the defendant’s claims regarding
lack of notice and opportunity to argue the motion. In
support of his claim, the defendant contends that the
opportunities given to him to reargue the motion for
joinder ‘‘were brief and illusory,’’ and that the court’s
decision was ‘‘set in stone’’ well before defense counsel
had an adequate opportunity to oppose the motion. The
defendant further contends that joinder of the cases
was not based on judicial economy but, rather, was
‘‘a weapon to negatively affect the defendant and his
chance of prevailing.’’ According to the defendant, in
light of the context and circumstances surrounding the
granting of the motion for joinder, as well as the sum
of the evidence that resulted from the granting of the
motion, he was prevented from receiving a fair trial.
Our review of the record, however, belies the defen-
dant’s claims.
The motion for joinder was filed on March 11, 2013.
The court granted the motion on March 13, 2013, but the
court also told defense counsel that it would entertain a
motion for reconsideration should the defendant file
such a motion, and that it would ‘‘give [defense counsel]
every opportunity to more fully research and argue’’
the issue of joinder, and ‘‘to look at’’ the controlling
case law. The court, therefore, gave the defendant until
the following morning to research and argue the motion.
The next day, when defense counsel indicated that he
had not been able to do extended research due to ongo-
ing medical issues, the court gave him until March 19,
2013, to prepare a response to the motion for joinder.
Full argument on the merits of the motion to reconsider
the granting of the motion for joinder did not take
place until March 20, 2013. At the conclusion of the
arguments, the court took a brief recess to review the
controlling case law again before ruling. In light of the
record, we cannot say that the court improperly joined
the Meriden and New Britain cases without providing
the defendant with sufficient notice and an opportunity
to argue against joinder of these matters.
We turn now to the merits of the motion for joinder.
Practice Book § 41-19 provides that ‘‘[t]he judicial
authority may, upon its own motion or the motion of
any party, order that two or more informations, whether
against the same defendant or different defendants, be
tried together.’’ ‘‘[I]n deciding whether to [join informa-
tions] for trial, the trial court enjoys broad discretion,
which, in the absence of manifest abuse, an appellate
court may not disturb.’’ (Internal quotation marks omit-
ted.) State v. Crenshaw, 313 Conn. 69, 83, 95 A.3d 1113(2014). ‘‘[W]hen charges are set forth in separate infor-
mations, presumably because they are not of the same
character, and the state has moved in the trial court to
join multiple informations for trial, the state bears the
burden of proving that the defendant will not be sub-
stantially prejudiced by joinder pursuant to Practice
Book § 41-19. The state may satisfy this burden by prov-
ing, by a preponderance of the evidence, either that the
evidence in the cases is cross admissible or that the
defendant will not be unfairly prejudiced pursuant to
the Boscarino factors.’’ (Footnote omitted.) State v.
Payne, supra, 303 Conn. 549–50. ‘‘On appeal, however,
the burden shifts to the defendant to show that joinder
was improper by proving substantial prejudice that
could not be cured by the trial court’s instructions to
the jury. . . . The defendant may establish that he was
substantially prejudiced by showing either that the evi-
dence would not have been cross admissible or that
one or more of the Boscarino factors6 were present.’’
(Citation omitted; internal quotation marks omitted.)
State v. Crenshaw, supra, 83. ‘‘The argument for joinder
is most persuasive when the offenses are based upon
the same act or criminal transaction, since it seems
unduly inefficient to require the state to resolve the
same issues at numerous trials.’’ (Internal quotation
marks omitted.) State v. LaFleur, 307 Conn. 115, 157,
51 A.3d 1048 (2012).
State v. Whittingham, 18 Conn. App. 406, 558 A.2d
1009 (1989), is instructive in the present cases. In Whit-
tingham, the police obtained a search warrant for the
defendant’s person and his van. Id., 408. After the police
located the van in front of an apartment house, they
noticed the defendant watching them from a nearby
apartment. Id. The police asked the defendant to come
down to the van, and, when he complied, the police
noticed an odor of marijuana on his person. Id. The
police found 1.16 ounces of marijuana in the van and
arrested the defendant. Id. When the police went inside
the apartment building to inform the defendant’s girl-
friend that the defendant was being taken into custody,
one of the officers noticed the odor of marijuana wafting
out of the defendant’s apartment. Id., 408–409. The
police returned to the apartment with a warrant two
hours later and, in searching the apartment, discovered
drug paraphernalia, a sawed-off shotgun and ammuni-
tion, a scale, and a locked briefcase containing an add-
ing machine, $700 in small denominations, a department
store receipt with the defendant’s name and seventeen
ounces of marijuana packaged for sale. Id., 409. The
defendant was charged with possession of marijuana
and possession of marijuana with intent to sell in con-
nection with the evidence found in the van; the defen-
dant was charged with possession of four or more
ounces of marijuana, possession of drug paraphernalia,
possession of a sawed-off shotgun, and possession of
marijuana with intent to sell based on the evidence
found in the apartment. Id. The informations were
joined for trial, and, following trial, the defendant was
convicted of possession of marijuana with intent to sell
in connection with the van, and acquitted of all charges
involving the apartment. Id.
In rejecting the defendant’s challenge to the joinder
of the informations, we stated that the offenses charged
in the two informations arose from what was essentially
a single transaction. Id., 411. Specifically, we stated that
‘‘contemporaneously with their search of the van, the
police uncovered the first link in the chain of evidence
leading to the search of the apartment, namely, that the
defendant’s odor of marijuana suggested that illegal
activity was taking place in the apartment. Although
the process of procuring a search warrant delayed the
search of the apartment for several hours, the crimes
were connected in time and place.’’ Id., 411–12. Simi-
larly, in the present cases, after the defendant was
arrested following the controlled delivery of the mari-
juana in Meriden, he informed the police of his address
in New Britain. The police then searched the defen-
dant’s home in New Britain and seized several items,
including a handgun, ammunition, and digital scales
and packaging material consistent with that used by
drug dealers to weigh marijuana or other narcotics. The
court specifically stated that the defendant’s arrests
seemed to be ‘‘if not factually similar, factually identical,
arising from the same transaction,’’ and that it was
‘‘merely a matter of geography that one case was
brought in New Britain and one case was brought in
Meriden.’’ On the basis of our review of the record, we
agree with the trial court and conclude that the conduct
giving rise to the charges arose from a single transac-
tion. See State v. Crenshaw, supra, 313 Conn. 84 (join-
der of two informations upheld where ‘‘the conduct
giving rise to the charges . . . constituted a single,
unbroken course of conduct’’).
In addition to finding that the cases were factually
similar and arose out of the same transaction, the court
noted that the evidence in the New Britain case would
‘‘very likely be admissible in the Meriden case, as intent.
It’s a state of mind issue . . . to be inferred from
conduct and circumstantial evidence. That circumstan-
tial evidence may likely come from what is alleged to
have been seized in New Britain.’’ We agree.7
We initially note that ‘‘[b]ecause of its prejudicial
impact, evidence of prior acts of misconduct is inadmis-
sible merely to show a defendant’s bad character or
tendency to commit criminal acts. . . . On the other
hand, such evidence may be offered in proof of an issue
in the case, such as intent, identity, malice, motive or
a system of criminal activity.’’ (Internal quotation marks
omitted.) State v. Crenshaw, supra, 313 Conn. 86–87.
We further note that the element of intent to sell mari-
juana may be proved by circumstantial evidence. See
State v. Avila, 166 Conn. 569, 576–77, 580, 353 A.2d 776(1974); State v. Whittingham, supra, 18 Conn. App. 412.
In addition to holding that the offenses arose from
a single transaction in State v. Whittingham, supra, 18
Conn. App. 412–13, we also held that the two informa-
tions were legally related, and that the seventeen
ounces of marijuana found in the briefcase that was
seized in the apartment was admissible in the van case
with regard to the issue of intent. Specifically, we stated:
‘‘In light of testimony by the state’s expert that drug
dealers routinely keep most of their inventory separate
from the smaller amount that they possess for sale on
the street, the evidence of the seventeen ounce quantity
was relevant to the issue of whether the defendant
intended to sell the 1.6 ounces of marijuana found in
the van. . . . Thus, the evidence of the seventeen
ounces of marijuana in the briefcase was admissible in
the van case.’’ (Citations omitted.) Id., 412–13. In the
present cases, Christopher McWilliams, a sergeant with
the Connecticut state police, testified that most people
involved in narcotics trafficking do not keep money,
drugs, and guns in the same location; these items,
rather, are placed in different locations. Torneo testified
that marijuana dealers often have large sums of money,
and that drug dealers are known to carry and possess
weapons or pistols for their own protection. He also
testified that scales and packaging material are indica-
tive of someone who sells drugs. The items seized in
New Britain, therefore, would have been relevant and
admissible as circumstantial evidence regarding the
defendant’s intent to sell the marijuana that was seized
in Meriden.8 See State v. Avila, supra, 166 Conn. 580(‘‘fact that a gun was . . . found with the heroin was
relevant to the issue of intent to sell’’); State v. Legnani,
109 Conn. App. 399, 424, 951 A.2d 674 (upholding join-
der when significant portion of evidence seized from
defendant’s home, including firearms and ammunition,
leading to charges in second case, would have been
admissible in first case charging defendant with, inter
alia, assault in first degree), cert. denied, 289 Conn. 940,
959 A.2d 1007 (2008); State v. Garcia, 108 Conn. App.
533, 539, 949 A.2d 499 (‘‘quantity of money seized from
[a] defendant [is] relevant to the issue of intent to sell
cocaine’’ [internal quotation marks omitted]), cert.
denied, 289 Conn. 916, 957 A.2d 880 (2008); State v.
Whittingham, supra, 18 Conn. App. 412–13 (seventeen
ounces of marijuana found in apartment relevant to
whether defendant intended to sell lesser amount found
in van).
‘‘[When] evidence of one incident can be admitted at
the trial of the other [incident], separate trials would
provide the defendant [with] no significant benefit. . . .
[U]nder such circumstances, the defendant would not
ordinarily be substantially prejudiced by joinder of the
offenses for a single trial. . . . Accordingly, [w]e con-
sistently have found joinder to be proper if we have
concluded that the evidence of other crimes or
uncharged misconduct would have been cross admissi-
ble at separate trials. . . . [When] evidence is cross
admissible, therefore, our inquiry ends.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Crens-
haw, supra, 313 Conn. 83–84; see also State v. Vere C.,
152 Conn. App. 486, 521, 98 A.3d 884, cert. denied, 314
Conn. 944, 102 A.3d 1116 (2014). In the present case,
because the evidence would have been cross admissible
in separate trials, the court did not abuse its discretion
in granting the state’s motion for joinder.9
II
The defendant next argues that the court erred in
denying his motion to suppress the evidence obtained
by the police as a result of the warrantless search of
his home. We disagree.
The following additional facts are necessary for the
resolution of this claim. Prior to trial, the defendant
filed a motion to suppress all tangible evidence taken
from his home at 53 Sexton Street in New Britain. Fol-
lowing a hearing on the motion, the court found that
the defendant told DelMastro that he owned the entire
property located at 53 Sexton Street in New Britain and
gave his verbal consent to the police to search the entire
property, including the basement area. On appeal, the
defendant challenges the court’s finding with regard to
the consent to search the basement, and argues that
there was no testimony or other evidence in the record
that draws particular attention to the basement area of
the home. We disagree and conclude that the court’s
factual finding with regard to consent is supported by
the evidence in the record.
‘‘On appeal, we apply a familiar standard of review
to a trial court’s findings and conclusions in connection
with a motion to suppress. A finding of fact will not be
disturbed unless it is clearly erroneous in view of the
evidence and pleadings in the whole record . . . . The
conclusions drawn by the trial court will be upheld
unless they are legally and logically inconsistent with
the evidence.’’ (Internal quotation marks omitted.) State
v. Mullien, 140 Conn. App. 299, 306, 58 A.3d 383 (2013).
‘‘It is axiomatic that searches and seizures inside a home
without a search warrant are presumptively unreason-
able. . . . A warrantless search or entry into a house
is not unreasonable, however, under the fourth amend-
ment to the United States constitution or article first,
§ 7, of the Connecticut constitution when a person with
authority to do so has freely consented. . . . The ques-
tion of whether a defendant has given voluntary consent
to enter or search his or her premises is a question of
fact to be determined by the trial court by considering
the totality of the circumstances surrounding the entry
or search.’’ (Internal quotation marks omitted.) Id., 305–
306. ‘‘Whether there was valid consent to search is a
factual question that will not be lightly overturned on
appeal.’’ (Internal quotation marks omitted.) State v.
Cobb, 251 Conn. 285, 314, 743 A.2d 1 (1999), cert. denied,
531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).
‘‘The standard for measuring the scope of a suspect’s
consent under the [f]ourth [a]mendment is that of objec-
tive reasonableness—what would the typical reason-
able person have understood by the exchange between
the officer and the suspect? . . . The scope of a search
is generally defined by its expressed object. . . .
Although objective reasonableness is a question of law
[over which our review is plenary], the factual circum-
stances are highly relevant when determining what a
reasonable person would have believed to be the outer
bounds of the consent that was given.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Jenkins,
298 Conn. 209, 255, 3 A.3d 806 (2010).
Application of these principles to the facts of this
case leads us to conclude that the court properly found
that the defendant voluntarily consented to a search of
his residence, including the basement. On March 26,
2013, at a hearing on the motion to suppress, Lawlor
testified that after the defendant was taken into custody
in Meriden, he told the police that he lived on the second
floor at 53 Sexton Street in New Britain, and consented
to a search of that residence. Lawlor further testified
that the defendant executed a consent form for the
search.10 According to Lawlor, upon arrival at 53 Sexton
Street, the defendant’s mother-in-law informed the
police that the defendant lived on the first floor with
his wife. The defendant’s wife, however, informed the
police that she and the defendant were having marital
issues, and that the defendant would either sleep on
the couch in the first floor residence, or in the basement.
Torneo testified that he was concerned that the defen-
dant had attempted to trick the police into believing
that he lived on the second floor, so he called DelMastro
at the Meriden Police Department and asked him to
clarify that the defendant’s consent for the search
included the entire residence. Torneo further testified
that once DelMastro called him back, the police
searched the basement. DelMastro testified that after
receiving the call from Torneo, he asked the defendant
if the police had permission to search the entire resi-
dence in New Britain, and the defendant said that they
did.11 DelMastro further testified that after he had this
conversation with the defendant, he called Torneo back
and told him what the defendant had said, specifically
‘‘that he owned the residence, and they had his permis-
sion to search the residence.’’
The defendant also testified at the suppression hear-
ing. On cross-examination, he stated that when DelMas-
tro asked for his consent to search the house, he did not
consent. The court then admitted DelMastro’s police
report into evidence as a prior inconsistent statement
of the defendant. The report indicates that the defen-
dant had consented to a search of the whole house.12
On March 27, 2013, prior to the commencement of
evidence, the court issued an oral ruling on the motion
to suppress.13 In its decision, the court stated that ‘‘the
defendant indicated to Sergeant DelMastro that he
owned the entire New Britain property and gave his
verbal consent for law enforcement to search the entire
New Britain property to include the basement area.’’
The court also credited the testimony of DelMastro,
with regard to consent, and did not credit the defen-
dant’s contrary testimony. Finally, the court found that
the search of the basement area was within the scope
of the consent given by the defendant to DelMastro.
On the basis of our review of the record, we cannot
say that the court’s factual finding that the defendant
consented to the search the entire residence, including
the basement, was clearly erroneous. When the police
were unsure regarding the scope of the defendant’s
consent, Torneo asked DelMastro to obtain clarification
from the defendant. DelMastro testified that he asked
the defendant if the police had his permission to search
the entire residence, and the defendant consented. Simi-
larly, DelMastro’s police report indicated that the defen-
dant was very clear when he gave the police permission
‘‘to search his whole house.’’ (Emphasis added.) The
court acted within its authority to credit the testimony
of DelMastro that the defendant consented to a search
of the entire house, and reasonably concluded that the
entire house included the basement. See State v.
DeMarco, 311 Conn. 510, 522–23, 88 A.3d 491 (2014)
(‘‘A finding of fact is clearly erroneous when there is
no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . Because it is the trial court’s function to weigh
the evidence and determine credibility, we give great
deference to its findings.’’ [Internal quotation marks
omitted.]). Accordingly, the defendant cannot prevail
on his claim that the trial court improperly denied his
motion to suppress.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The packages were selected for inspection based on certain criteria,
such as the weight distribution and origin of the packages, as well as how
they were taped and labeled.
2
One of the packages contained 9.32 pounds of marijuana, and the other
contained 10.3 pounds of marijuana.
3
With regard to the Meriden charges, the defendant was also convicted
of attempt to possess more than four ounces of a controlled substance in
violation of §§ 53a-49 and 21a-279. The court vacated that conviction in
accordance with State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013). The
defendant was acquitted of the charge of interfering with a police officer
in violation of § 53a-167a (a). With regard to the New Britain charges, the
jury could not reach a unanimous verdict on the charge of possession of
drug paraphernalia. The state nolled that charge, and the court thereafter
dismissed it.
4
The court stated: ‘‘Alright, as I have indicated, I will give you every
opportunity to more fully research and argue, although you have done a
fairly good job without being prepared according to your representations,
on the motion for joinder, to do the appropriate research, to look at [State
v. Payne, 303 Conn. 538, 34 A.3d 370 (2012)] and [State v. Boscarino, supra,
204 Conn. 714], to put something in writing, if you choose to. And to reargue
that tomorrow morning.’’
5
The court also denied the defendant’s oral motion to elect a court trial
on the New Britain charges.
6
‘‘When evidence is not cross admissible, several factors identified in . . .
Boscarino . . . are used to determine whether the defendant has suffered
substantial prejudice. These factors include: (1) whether the charges involve
discreet, easily distinguishable factual scenarios; (2) whether the crimes
were of a violent nature or concerned brutal or shocking conduct on the
defendant’s part; and (3) the duration and complexity of the trial. . . . If
any or all of these factors are present, a reviewing court must decide whether
the trial court’s jury instructions cured any prejudice that might have
occurred.’’ (Internal quotation marks omitted.) State v. Crenshaw, supra,
313 Conn. 83–84 n.8.
7
Although the defendant states in his appellate brief that the offenses
should not have been joined pursuant to Boscarino, he does not address
whether the evidence would have been cross admissible in separate trials.
We note, however, that ‘‘[when] evidence is cross admissible . . . our
inquiry ends.’’ (Internal quotation marks omitted.) State v. Crenshaw, supra,
313 Conn. 84.
8
We also agree with the state that evidence regarding the controlled
delivery in Meriden would have been admissible in the New Britain case to
prove that the digital scales and packaging materials were drug paraphernalia
and not, as the defendant’s wife and sister-in-law testified, items used in a
trinkets business.
9
In light of this conclusion, we need not reach the issue of whether any
of the Boscarino factors exist. See State v. Crenshaw, supra, 313 Conn. 82n.6; State v. Vere C., supra, 152 Conn. App. 521.
10
Lawlor also testified that he subsequently lost the signed consent form.
11
At the suppression hearing, DelMastro testified as follows:
‘‘Q. And what was the nature of your conversation with [the defendant]?
‘‘A. I was asking him if the [state police] and the officers in that unit
would have permission to search the residence he owned in New Britain.
‘‘Q. Okay. And how—what did [the defendant] respond to you?
‘‘A. Yes. I don’t know the exact wording, but it was, he owned the house
and they had permission to search the whole house. And—um—I don’t even
know the address at this time. I know it was in New Britain.
‘‘Q. And did you specifically ask [the defendant] if the statewide narcotics
task force had permission to search the entire residence?
‘‘A. Yes.
‘‘Q. And what did [the defendant] say?
‘‘A. Yes. I wrote a report on that.
‘‘Q. Would you say that [the defendant] was very clear in his response
to you?
‘‘A. Yes.’’
12
DelMastro’s police report stated in relevant part: ‘‘On 6/10/11 at about
1830 Hrs. I received a call from CSP Sgt. Torneo who is a member of the
Statewide Narcotics Unit. Sgt. Torneo stated that his unit had consent from
[the defendant] to search the 2nd Floor of his residence in New Britain,
CT. Sgt. Torneo asked me if I could ask [the defendant] if he would give
consent to search the rest of his residence in New Britain, CT. I went back
to cell #9 and spoke with [the defendant] concerning this. I asked him if
the officers he was dealing with had consent to search the rest of his house.
[The defendant] stated that he owned the house in New Britain and he
would give them consent to search the whole house. [The defendant] stated
that he lived on the first and second floor with his family and his mother
or mother in law. I’m not sure which one he said, lived with his immediate
family. [The defendant] stated that the third floor was vacant and that he
has to do work to that apartment due to a fire, but they could search that
also. [The defendant] was very clear when he said he gave permission to
search his whole house. I told [the defendant] I was going to let the officers
know. I called Sgt. Torneo and told him what [the defendant] had told me
concerning the consent to search at his residence.’’
13
The court later issued a written memorandum of decision.