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STATE OF CONNECTICUT v. DANTE SMITH

(AC 34529)

Lavine, Robinson and Peters, Js.*

Argued November 21, 2013—officially released April 1, 2014

(Appeal from Superior Court, judicial district of

Middlesex, Jongbloed, J.)

Raymond L. Durelli, assigned counsel, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state’s
attorney, with whom were Russell Zentner, senior assistant state’s attorney, and, on the brief, Peter A.

McShane, state’s attorney, for the appellee (state).
Opinion

LAVINE, J. The defendant, Dante Smith, appeals from

the judgment of conviction, rendered after a jury trial,

of two counts of assault in the second degree in violation of General Statutes § 53a-60 (a) (1). On appeal, the

defendant claims that the court improperly denied his

motion to suppress with respect to statements he made

(1) at the crime scene and (2) later at the police station

during his booking. We affirm the judgment of the

trial court.

The jury reasonably could have found the following

facts. On the night of March 9, 2010, the victim, Justin

Molinaro, was driving his Audi A4 in the vicinity of

Maplewood Terrace, a public housing complex in Middletown known to be a high crime area. As he drove

past the complex, two unidentified men flagged him

down and informed him that his cousin, the defendant,

wanted to speak with him. The victim drove his car

into a parking lot at Maplewood Terrace, where he saw

the defendant get into the backseat of another car. The

victim exited his Audi and asked the defendant what

he wanted. While the victim was waiting for the defendant, he saw Tykeem Privott, who was also in the car

with the defendant. The victim noticed that Privott had

a supply of marijuana on his lap and began to chastise

Privott for his drug use. As the victim talked to Privott,

the defendant got out of the car wielding a Louisville

Slugger aluminum baseball bat, which he used to strike

the victim on the head. The blow knocked the victim

to the ground, and the victim asked the defendant,

‘‘[W]hat the hell is going on?’’ The other occupants of

the vehicle then exited the car and began to kick and

punch the victim as he lay on the ground.

Privott picked up the Louisville Slugger and swung

it at the victim, striking him on the back of his neck.

The defendant choked the victim and told him to ‘‘go

to sleep, motherfucker.’’ The defendant ordered his

accomplices to go through the victim’s pockets, which

they did, taking his cell phone, wallet, and the keys to

the Audi.

As the assailants left, the victim stumbled to his feet.

He found his car keys in a patch of grass near the

parking lot. The defendant, however, reappeared and

said, ‘‘What, you didn’t have enough yet?’’ and pointed

a black handgun in the victim’s face. The defendant

took the keys to the Audi and said, ‘‘This shit is mine.’’

The victim then saw Privott, who was now also holding

a handgun. Privott asked the defendant, ‘‘Do you want

me to pop this motherfucker?’’ The defendant then

turned and left in the Audi.

The victim walked to a nearby house and called 911.

He reported to the dispatcher the details of the assault

and carjacking. While on the telephone with the dispatcher, the victim saw the Audi double back, headed
in the direction of Maplewood Terrace. He told the

dispatcher that six people were returning in his car

with guns, and he asked the dispatcher to send help.

The police arrived on the scene, and police officers

attended to the victim. One police officer later stated

that the victim looked ‘‘like an alien’’ because the area

around his left eye was bloodied, swollen, and disfigured. The swelling around the victim’s eyes rendered

him nearly blind. The victim was gasping for breath

and making statements to the effect of, ‘‘I don’t want to

die.’’ When asked what happened, the victim responded,

‘‘Dante Smith and Tykeem Privott did this. Dante had

a bat and Tykeem had a gun.’’ The victim faded in and

out of consciousness and his respiration was irregular.

Emergency workers arrived and transported him to

the hospital.

After treating the victim, the police processed the

crime scene and secured the area surrounding Maplewood Terrace, where a crowd had gathered. Approximately forty minutes after the assault took place, a

black male calmly approached police Officers Dan

Smith and Nicolas Puorro. As he drew near, he stated,

‘‘I am Dante Smith, my grandmother said the police

were looking for me.’’

On the basis of the information provided by the victim, the police had reason to believe that the defendant

was involved in an assault that involved both firearms

and a baseball bat. The police informed the defendant

that they had to place him in handcuffs for safety reasons, and that they had an obligation to protect both

themselves and the surrounding crowd. The defendant

stated that he understood, and that he also understood

that he was not under arrest.

The police asked the defendant whether he had any

weapons; he replied that he did not. The police frisked

the defendant, but found no weapons. The defendant

was asked whether he knew where the weapons were,

to which he responded, ‘‘What weapons?’’ When asked

about Privott, the defendant denied knowing him. The

defendant was then asked what happened that evening.

The defendant stated that he had been involved in a

fight with the victim, and that he and the victim were

cousins. He told the police that the victim had called

him and wanted to go for a ride. The defendant stated

that once he was in the car with the victim, the victim

wanted to go and buy drugs. The defendant stated that

he did not want to buy drugs and wanted to get out of

the car. When the victim did not stop the vehicle, the

defendant stated that he punched the victim in the face

several times.

Upon hearing the defendant’s narrative, the police

informed him that it appeared as if the victim had been

struck with a baseball bat, and that the injuries occurred

to the left side of his face, which was inconsistent with
the defendant’s story that the victim was driving. The

defendant grew frantic and stopped cooperating with

the police, stating, ‘‘Do what you got to do, arrest me,

arrest me.’’ The defendant was placed under arrest and

transported to police headquarters.

The defendant was charged in a seven count amended

information, which included two counts of assault in

the first degree in violation of General Statutes § 53a59 (a) (1). The defendant thereafter filed a motion to

suppress the statements he made to the police at the

crime scene and during his booking at the police station,

arguing that they were inadmissible pursuant to

Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct.

1602, 16 L. Ed. 2d 694 (1966). A hearing on the motion

to suppress was held during which the defendant argued

that the statements he made to the police while he was

handcuffed at the crime scene should be suppressed

because he was in police custody and interrogated without having received Miranda warnings. The court

denied the motion, finding that the defendant was not

in custody at the crime scene, and alternatively, that

the public safety exception to Miranda applied. The

court also found, with respect to the statements made at

the police station during his booking, that the defendant

was properly advised of his Miranda rights and that

he waived his rights when, during his booking, he

repeated the statement he made to the police at the

crime scene.

Following a trial, the jury found the defendant guilty

of two counts of the lesser included offense of assault

in the second degree in violation of § 53a-60 (a) (1),

and rejected the defendant’s claim of self-defense. The

defendant was found not guilty of all other charges. The

court merged the two assault convictions and sentenced

the defendant to a total effective term of five years

incarceration, execution suspended after forty months,

followed by five years probation with special conditions. This appeal followed.

On appeal, the defendant claims that the admission

of his statements to the police violated his fifth amendment rights and reasserts a claim he made at trial that

he was subjected to custodial interrogation without

Miranda warnings at the crime scene. The defendant

also claims that the statements he made at the police

station during his booking were inadmissible under the

doctrine established in Missouri v. Seibert, 542 U.S.

600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004). We affirm

the judgment of the trial court.

I

We begin by analyzing the defendant’s claim that the

trial court erred when it denied his motion to suppress

the incriminating statements that he made at the

crime scene.

‘‘Our standard of review of a trial court’s findings 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 . . . . [W]here the

legal conclusions of the court are challenged, we must

determine whetherthey are legally and logically correct

and whether they find support in the facts set out in

the [trial court’s] decision . . . .’’ (Citations omitted;

internal quotation marks omitted.) State v. Colvin, 241

Conn. 650, 656, 697 A.2d 1122 (1997).

The defendant argues that he was in custody as soon

as the police handcuffed him, and, therefore, he was

entitled to Miranda warnings when he was questioned.

The state, on the other hand, argues that the defendant

was not in custody, and, alternatively, that the public

safety exception to Miranda applies. Because we agree

with the state that the public safety exception applies

to the facts of this case, we do not need to decide

whether the defendant was in custody for the purposes

of Miranda.

As our Supreme Court has noted, ‘‘The United States

Supreme Court first articulated the public safety doctrine in New York v. Quarles, 467 U.S. 649, 104 S. Ct.

2626, 81 L. Ed. 2d 550 (1984). In Quarles, a young woman

approached two police officers in their patrol car and

informed them that a man armed with a gun had just

raped her. Id., 651. She described her assailant and told

the officers that the man had just entered a nearby

supermarket. Id., 651–52. The officers entered the

supermarket, located a man, Benjamin Quarles, who

matched the description given, and apprehended him

after a brief pursuit through the store. Id., 652. One

officer frisked Quarles and detected an empty shoulder

holster before handcuffing him. Id. Before reading him

his Miranda rights, the officer asked Quarles where

the gun was, and Quarles responded, ‘the gun is over

there.’ Id. Quarles subsequently was charged with criminal possession of a weapon. Id. The trial court granted,

and the New York Court of Appeals affirmed, Quarles’

motion to suppress both the gun and the statement

because the officer had not given him his Miranda

warnings. Id., 652–53.

‘‘The United States Supreme Court, however,

reversed the New York Court of Appeals’ decision. Id.,

660. It held that both the statement and the gun were

admissible under the public safety exception because

the ‘concern for public safety must be paramount to

adherence to the literal language of the prophylactic

rules enunciated in Miranda.’ Id., 653. The court reasoned that ‘the need for answers to questions in a situation posing a threat to the public safety outweighs the

need for the prophylactic rule protecting the Fifth

Amendment’s privilege against self-incrimination.’ Id.,

657. Furthermore, the court explained that the exception ‘simply [frees officers] to follow their legitimate
instincts when confronting situations presenting a danger to the public safety.’ Id., 659. The court ‘decline[d]

to place officers . . . in the untenable position of having to consider, often in a matter of seconds, whether

it best serves society for them to ask the necessary

questions without the Miranda warnings and render

whatever probative evidence they uncover inadmissible, orforthem to give the warnings in orderto preserve

the admissibility of evidence they might uncover but

possibly damage or destroy their ability to obtain that

evidence and neutralize the volatile situation confronting them.’ Id., 657–58. The court explained that questions must ‘relate to an objectively reasonable need to

protect the police or the public from any immediate

danger . . . .’ Id., 659 n.8’’ State v. Betances, 265 Conn.

493, 502–503, 828 A.2d 1248 (2003).

Quarles instructs that rigid adherence to the prophylactic rule enunciated in Miranda must be balanced

against the need for immediate information in a developing situation that may pose a threat to public safety.

In the present case, in the wake of a violent assault,

there was a need for information related to the location

of weapons and the whereabouts of the potentially

armed coassailants. We note that the defendant was

asked a few pointed questions specifically related to

the public safety concerns of the police.1 Aside from

the fact that the defendant was handcuffed, there were

no coercive or intimidating actions undertaken by the

police. In fact, the defendant voluntarily approached

the police and initiated a conversation with them near

the crime scene. He appeared to be calm, not under

the influence of drugs, and ready to tell his narrative.

The record reveals that the conversation the police had

with the defendant was initially relaxed, and that he

consented to and understood why he was being handcuffed. The questioning also took place in public, by

two police officers who did not display their weapons.

This initial interaction between the police and the defendant lasted for less than two minutes.2

Given the brutal nature of the assault on the victim

and the report that a baseball bat and firearms were

used, the police had a legitimate concern that there

were both unsecured weapons and as many as five

armed assailants in the vicinity of Maplewood Terrace.

As in Quarles, the police had information that the defendant had been armed, and therefore reasonably feared

that a gun could be in the vicinity. Furthermore, what

posed a particularly acute threat to public safety was

the large number of bystanders who had emerged from

their residences and gathered at the crime scene.

The defendant argues that as soon as the police

frisked him and found no weapons, any public safety

concerns were dispelled. We decline to take such a

view, which is based on 20/20 hindsight and information

not then known to the police. As the Supreme Court
noted in Quarles, ‘‘[i]n a kaleidoscopic situation such

as the one confronting these officers, where spontaneity

rather than adherence to a police manual is necessarily

the order of the day, the application of the exception

which we recognize today should not be made to

depend on post hoc findings at a suppression hearing

. . . .’’ New York v. Quarles, supra, 467 U.S. 656.

We therefore conclude, as the United States Supreme

Court did in Quarles, that the danger to innocent

bystanders, the investigating officers, and the defendant

himself constituted an objective threat to public safety.

See State v. Betances, supra, 265 Conn. 504 (‘‘the public

safety exception applies to individual members of the

public, including defendants, as well as to the public

at large’’ because ‘‘[w]hen a life is in danger, the law

should make no distinctions’’). Accordingly, on the

basis of our review of the record, we conclude that

the court properly determined that the public safety

exception to Miranda was applicable to the facts of this

case when it denied the defendant’s motion to suppress.

II

The defendant’s second claim is that, notwithstanding the fact that the police read him his rights prior to

his making incriminating statements during the police

booking procedure, those statements are inadmissible

under the doctrine established in Missouri v. Seibert,

supra, 542 U.S. 600. That doctrine stands for the narrow

proposition that, when the police deliberately violate

Miranda in the first instance, and then obtain the same

confession with proper Miranda warnings at a later

time, the defendant’s confession is tainted and inadmissible. See id., 613–14. Because we conclude that the

statements the defendant made at the crime scene were

admissible under the public safety exception to

Miranda, the doctrine enunciated in Seibert is inapplicable.

The judgment is affirmed.

In this opinion the other judges concurred.

* The listing of the judges reflects their seniority status on this court as

of the date of oral argument.

1 The defendant argues that the question ‘‘what happened here?’’ was

outside of the public safety exception because the question invited a

response that was broader than the specific concern for public safety. We

disagree. The overall nature and context of the questions the police asked

the defendant pertained to the safety and well-being of the public. At the

suppression hearing Officer Smith testified: ‘‘So, I basically started asking

[the defendant] are there any weapons that we should be aware of, is there

anything around on the complex. We felt that something may have been

discarded, somebody, a civilian could have come into possession of a gun

or weapon. He said no, there’s no weapons. I started asking him what

happened, if he knew anything, if he was involved in this assault because

this is what the victim had said and he said that he had been involved in

an assault with [the victim], but he had not used any weapons.’’

In our view, the focus of the questioning was still related to the location

of the weapons. We agree wholeheartedly with the United States Court of

Appeals for the Second Circuit that ‘‘a question need not be posed as narrowly as possible, because ‘[p]recision crafting cannot be expected’ in the

circumstances of a tense and dangerous arrest. . . . Thus, a question that
plainly encompasses safety concerns, but is broad enough to elicit other

information, does not necessarily prevent application of the public safety

exception when safety is at issue and context makes clear that the question

primarily involves safety.’’ (Citation omitted.) United States v. Estrada, 430

F.3d 606, 612 (2d Cir. 2005).

2 The trial court found that ‘‘[the defendant] immediately took responsibility for the assault on the [victim], admitting that he punched him in the face

several times.’’ The defendant claims that this finding was clearly erroneous

as it implies that the defendant made the statements at issue spontaneously

and not in response to police inquiries. Although it is true that the defendant

did not spontaneously launch into his account and that his responses followed police inquiry, the trial court’s finding does not impact our public

safety exception analysis, which allows for limited questioning.