State v. Rios

Connecticut Appellate Court

State v. Rios

622 A.2d 618, 30 Conn. App. 712, 1993 Conn. App. LEXIS 154

CourtConnecticut Appellate Court

DecidedMarch 30, 1993

Docket10573; 10574

StatusPublished

Cited by53 cases

This text of 622 A.2d 618 (State v. Rios) 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. Rios, 622 A.2d 618, 30 Conn. App. 712, 1993 Conn. App. LEXIS 154 (Colo. Ct. App. 1993).

Pincite

Opinions

Cretella, J.

The defendants, Daniel and Gilberto Rios, who are brothers, appeal from convictions arising out of the possession and sale of narcotics in contravention of General Statutes §§ 21a-278 (b), 21a-279 (a), 53a-48 and 53a-167. The defendants filed motions to suppress that were denied after a hearing by the trial court, Freed, J. Subsequently, the defendants entered pleas of nolo contendere, reserving the right pursuant to General Statutes § 54-94a to appeal from the denial of their motions to suppress. On a finding of guilty, the trial court, Damiani, J., sentenced each defendant.

The defendants appeal from the trial court’s denial of their motions to suppress claiming (1) that the warrantless search of the defendants’ residence was con[714]*714ducted in the absence of exigent circumstances, and (2) that the search and seizure was of a pretextual nature in violation of both the state and federal constitutions. Conn. Const., art. I, § 7; U.S. Const., amend. IY.

After a hearing, the trial court apparently denied the motions to suppress, but diet not comply with Practice Book § 4059 in that the court did not issue a written memorandum or transcribe and sign its oral decision.¹ While we do not condone the court’s failure to comply with § 4059, and would decline in most instances to search the transcript to ascertain the factual basis in support of the trial court’s ruling, we would not exalt form over substance if the deficiency were of a technical nature. In this particular case, however, it is not simply the failure of the trial court to sign the transcript that causes the dilemma.

In State v. MacNeil, 28 Conn. App. 508, 515, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), this court noted that we “may resort to the evidence produced in support of the court’s ruling on a suppression motion when, as here, the court does not make detailed factual findings to support its decision.” We are quick to note, however, that in MacNeil the court had issued a memorandum of decision in ruling on the suppression motion and on appeal the court simply resorted to evidence as set forth in the transcript to ascertain the factual findings to support the decision. In the present case, as noted, there was no written memorandum of decision.

[715]*715Although the court concluded that the police did not unlawfully conduct a warrantless search but rather that the search was incident to the arrest and, therefore, did not require the obtaining of a search warrant, the only finding set forth in the transcript by the trial court was: “I will make a finding that this was not a pretextual advance by the police.” The transcript reveals no specific findings by the trial court that would support that conclusion.

The transcript further reveals that, notwithstanding the fact that both sides proceeded on the assumption that the trial court had denied the motion to suppress, the record is devoid of any such ruling by the trial court.

Despite the abundance of testimony adduced at the suppression hearing, we cannot review the merits of the defendants’ claim because we have no specific findings of fact to determine the basis of the court’s ruling. Although § 4059 requires that the trial court submit, within ten days of an appeal, a signed transcript of the factual issues and the factual basis of its decision, we recognize that in most instances, notwithstanding the provisions of Practice Book § 4012 that provide for notice of appeal, the trial court is usually not aware of the appeal until well after the ten day period has passed. It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § 4061; Walton v. New Hartford, 223 Conn. 155, 165-66, 612 A.2d 1153 (1992). Indeed, several rules of practice aim to facilitate the process by which an appealing party ensures the adequacy of the record. See Practice Book § 4051 (Rectification of Appeal, Articulation), § 4053 (Motion for Review — In General), § 4054 (Motion for Review — Review of Motion for Rectification of Appeal or Articulation). These rules foster the basic policy that an appellate tribunal cannot render a decision without first fully understanding the [716]*716disposition being appealed. State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). It is not the function of this court to find facts. State v. Reagan, 209 Conn. 1, 8, 546 A.2d 839 (1988).

The judgments are affirmed.

In this opinion Heiman, J., concurred.

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Cretella, J.

The defendants, Daniel and Gilberto Rios, who are brothers, appeal from convictions arising out of the possession and sale of narcotics in contravention of General Statutes §§ 21a-278 (b), 21a-279 (a), 53a-48 and 53a-167. The defendants filed motions to suppress that were denied after a hearing by the trial court, Freed, J. Subsequently, the defendants entered pleas of nolo contendere, reserving the right pursuant to General Statutes § 54-94a to appeal from the denial of their motions to suppress. On a finding of guilty, the trial court, Damiani, J., sentenced each defendant.

The defendants appeal from the trial court’s denial of their motions to suppress claiming (1) that the warrantless search of the defendants’ residence was con[714]*714ducted in the absence of exigent circumstances, and (2) that the search and seizure was of a pretextual nature in violation of both the state and federal constitutions. Conn. Const., art. I, § 7; U.S. Const., amend. IY.

After a hearing, the trial court apparently denied the motions to suppress, but diet not comply with Practice Book § 4059 in that the court did not issue a written memorandum or transcribe and sign its oral decision.¹ While we do not condone the court’s failure to comply with § 4059, and would decline in most instances to search the transcript to ascertain the factual basis in support of the trial court’s ruling, we would not exalt form over substance if the deficiency were of a technical nature. In this particular case, however, it is not simply the failure of the trial court to sign the transcript that causes the dilemma.

In State v. MacNeil, 28 Conn. App. 508, 515, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), this court noted that we “may resort to the evidence produced in support of the court’s ruling on a suppression motion when, as here, the court does not make detailed factual findings to support its decision.” We are quick to note, however, that in MacNeil the court had issued a memorandum of decision in ruling on the suppression motion and on appeal the court simply resorted to evidence as set forth in the transcript to ascertain the factual findings to support the decision. In the present case, as noted, there was no written memorandum of decision.

[715]*715Although the court concluded that the police did not unlawfully conduct a warrantless search but rather that the search was incident to the arrest and, therefore, did not require the obtaining of a search warrant, the only finding set forth in the transcript by the trial court was: “I will make a finding that this was not a pretextual advance by the police.” The transcript reveals no specific findings by the trial court that would support that conclusion.

The transcript further reveals that, notwithstanding the fact that both sides proceeded on the assumption that the trial court had denied the motion to suppress, the record is devoid of any such ruling by the trial court.

Despite the abundance of testimony adduced at the suppression hearing, we cannot review the merits of the defendants’ claim because we have no specific findings of fact to determine the basis of the court’s ruling. Although § 4059 requires that the trial court submit, within ten days of an appeal, a signed transcript of the factual issues and the factual basis of its decision, we recognize that in most instances, notwithstanding the provisions of Practice Book § 4012 that provide for notice of appeal, the trial court is usually not aware of the appeal until well after the ten day period has passed. It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § 4061; Walton v. New Hartford, 223 Conn. 155, 165-66, 612 A.2d 1153 (1992). Indeed, several rules of practice aim to facilitate the process by which an appealing party ensures the adequacy of the record. See Practice Book § 4051 (Rectification of Appeal, Articulation), § 4053 (Motion for Review — In General), § 4054 (Motion for Review — Review of Motion for Rectification of Appeal or Articulation). These rules foster the basic policy that an appellate tribunal cannot render a decision without first fully understanding the [716]*716disposition being appealed. State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). It is not the function of this court to find facts. State v. Reagan, 209 Conn. 1, 8, 546 A.2d 839 (1988).

The judgments are affirmed.

In this opinion Heiman, J., concurred.

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622 A.2d 618, 30 Conn. App. 712, 1993 Conn. App. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rios-connappct-1993.

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