State v. Mitchell

507 A.2d 1017, 7 Conn. App. 46, 1986 Conn. App. LEXIS 928
CourtConnecticut Appellate Court
DecidedApril 15, 1986
Docket3840
StatusPublished
Cited by21 cases

This text of 507 A.2d 1017 (State v. Mitchell) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mitchell, 507 A.2d 1017, 7 Conn. App. 46, 1986 Conn. App. LEXIS 928 (Colo. Ct. App. 1986).

Opinion

Borden, J.

The state appeals, with the permission of the trial court, from the judgments of the court dismissing the information against each defendant, Jeffrey Mitchell and Howard Tinney, Jr. The state had filed two-count informations against each defendant, charging them with sexual assault in the second degree, in violation of General Statutes § 53a-71 (a) (1), and risk of injury to or impairing the morals of a child, in violation of General Statutes § 53-21. The principal issue in these combined appeals involves the nature and length of an investigative detention of the defendants, as a result of which the victim identified them. We find error, and remand the cases for further proceedings.

Each defendant filed the following identical motions: a motion to suppress items seized from their persons and from Tinney’s automobile; a motion to suppress both pretrial and in-court identifications made of the defendants by the victim; and a motion to dismiss the information. The motions to suppress the seized items were based on claims that the items were seized without a warrant and without probable cause, that the items were seized illegally pursuant to a search warrant which was executed after the seizure, and that the affidavits supporting the warrant were flawed under the rule of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). The motions to sup[49]*49press the identifications were based on claims that the police lacked probable cause to take the defendants into custody and bring them to the victim for an identification, and that the ensuing show-up was unnecessarily suggestive and thus tainted a subsequent out-of-court photographic identification and any in-court identification. The motions to dismiss were based on claims that the defendants were arrested without probable cause, that the two charges constitute double jeopardy, and that there was insufficient reason or evidence to continue the prosecutions. After a lengthy evidentiary hearing, the court granted all of the defendants’ motions.

In its oral memorandum of decision the court made only limited factual findings and legal conclusions. We, therefore, must look to all the evidence produced in support of its decision. State v. Martin, 2 Conn. App. 605, 614, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). That evidence, those findings and the conclusions on those claims are as follows.

At about 11 p.m. on Sunday, July 22,1984, the Ansonia police department received a complaint of a sexual assault of the victim, who was a fourteen year old Caucasian girl. Officer Michael J. Kennedy went to the home of the victim’s grandmother in Derby and spoke to the victim. She gave him general details of the incident, including a claim that the assault took place in the parking lot of the Bradlees department store in Derby. Kennedy was then joined by officers Mark Ptak and Peter Zaskiewicz of the Ansonia police department, who took the victim to the Griffin Hospital in Derby, arriving there at about 11:25 p.m.

Kennedy’s written report of the incident indicated that the victim identified the car of the assailants as a Datsun. Zaskiewicz testified that en route to the [50]*50hospital the victim told him that the car was a white, bullet-shaped sportscar with white wheels, which she identified as a Mazda. She described the assailants to him as two black men in their early twenties, one taller than the other. When they arrived at the hospital, Zaskiewicz spoke to Kennedy and gave him the information which he had received from the victim on the trip to the hospital.

Meanwhile, because the victim had indicated that the scene of the assault was in Derby, the Ansonia officers contacted the Derby police department. Officers Joseph Iacuone and Eugene Mascolo of the Derby police department met at the hospital at about 11:30 p.m. and interviewed the victim. She told Iacuone and Mascolo that, as she was walking through the Bradlees parking lot, two men got out of a white, torpedo-shaped sports car with shiny wheels, which she thought was a Mazda, and chased her to the end of the lot, where they caught her and assaulted her near the adjacent Baskin-Robbins ice cream store. She described her assailants as two black males in their early twenties, between 5 feet 8 inches and 6 feet tall, weighing between 180 pounds and 200 pounds, and having short hair. She described one of the men as slightly taller than the other man, with a slender but muscular build, wearing maroon sweat pants and a white tee shirt and sneakers. She described the other man as slightly smaller but muscular, and wearing jeans and a tee shirt. She indicated that one of the men was named “Mike.”

Iacuone completed this interview of the victim and telephoned the descriptions of the assailants and the car to officer Robert Proto, who was then the desk officer of the Derby police department. At midnight, Proto was relieved .of his desk duties and was assigned, together with officer Maureen Menillo, to assist in the investigation of the alleged sexual assault on the victim. They arrived at the hospital at about 12:15 a.m. [51]*51At the hospital, Zaskiewicz told Proto that he knew that the defendant, Howard Tinney, Jr., drove a white Mazda RX-7 with silver wheels. Zaskiewicz gave Proto Tinney’s address on Scotland Road in Ansonia.

Proto and Mascolo went to the area of the Tinney residence, arriving there at about 2 a.m. The white Mazda was not there. They parked near the residence and waited. A few minutes later a white Mazda, generally fitting the physical description of the vehicle given by the victim, drove up followed by a white Thunderbird.

Two black males exited the white Mazda. One was about 5 feet 10 inches tall and was wearing dark blue sweat pants and a tee shirt; the other, about 6 feet tall, was wearing jeans, a shirt and sneakers. Proto was aware that the victim had said that the taller of the two assailants had been wearing maroon sweat pants and that the shorter of the two had been wearing jeans. Mascolo recognized the shorter man as the defendant Tinney. The taller man was the defendant Jeffrey Mitchell. The defendants entered the white Thunderbird, which was being operated by a woman, and the Thunderbird began to drive away. Proto pulled the Thunderbird over, radioed Ansonia for assistance, and advised the occupants that he was investigating a sexual assault. Zaskiewicz soon joined Proto and Mascolo.

Zaskiewicz talked with the defendants for about ten minutes. The defendants denied any involvement in the sexual assault, and stated that they had spent the evening in Waterbury, and then in a bar in Ansonia. The defendants were told that they would have to go with the officers to the hospital for a field identification. The defendants entered Proto’s police vehicle and were driven to the hospital. The drive took about four minutes. They arrived at the hospital between 2:15 a.m. and 2:30 a.m.

[52]*52When they arrived at the hospital the victim was being treated by a physician. The defendants were required to wait in the police car for about twenty-five minutes, during which time Tinney asked if he could call his father and was told by Proto that “as soon as we finish you can do anything you want . . . .”

When the victim’s treatment was completed, the defendants were brought into the foyer of the emergency room. The area was well lit.

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Bluebook (online)
507 A.2d 1017, 7 Conn. App. 46, 1986 Conn. App. LEXIS 928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mitchell-connappct-1986.