193 Conn. 612

State of Connecticut v. Curtiss Heinz

(11930)

Speziale, C. J., Peters, Parskey, Shea and Grillo, Js.

*613Argued May 10

decision released July 10, 1984

Carl Schuman, assistant state’s attorney, with whom, on the brief, were Rosita Creamer, assistant state’s *614attorney, and Maureen Platt, deputy assistant state’s attorney, for the appellant-appellee (state).

Vincent J. Trantolo, for the appellee-appellant (defendant).

Peters, J.

The principal issue in this case is whether affidavits accompanying an application for a warrant for arrest established probable cause to arrest the defendant on a charge of promoting an obscene performance. The defendant, Curtiss Heinz, was charged with four counts of promoting an obscene performance in violation of General Statutes § 53a-194, the first two counts relating to events that occurred on December 19,1979, and the latter two counts relating to events that occurred on January 9,1980. After a trial to a jury, the defendant was convicted on all four counts. The Appellate Session of the Superior Court determined that counts two, three and four should be dismissed. Prosecution under count two was held barred, on double jeopardy grounds, because of the close factual nexus between that count and the first count. Prosecution under counts three and four was held barred because of the legal insufficiency of the warrant with respect to those counts. With respect to the remaining count, count one, the Appellate Session found that an evidentiary error on the part of the trial court required a new trial. We granted petitions for certification from both the defendant and the state and consequently have two appeals before us. We find no error on the defendant’s appeal, but error on the state’s appeal.

The facts of this case are set forth in the opinion of the Appellate Session. “In December, 1979, and January, 1980, the defendant was the liquor permittee of a cafe in East Hartford known as the Venus Lounge. The cafe consisted of a large room with a long bar opposite a small square stage which was raised approximately three feet above the floor. The stage was sur*615rounded on three sides by tables and chairs. The fourth side abutted a wall which was covered by a large mirror. As an attraction the business featured several female ‘exotic’ dancers who would each perform a solo dance routine on the stage to the music of a jukebox.

“On the evening of December 19,1979, Officer Robert Kenary of the East Hartford police department and Officer James Malcolm of the Hartford police department went to the Venus Lounge to investigate complaints by local residents of obscene dances taking place. Upon entering, the officers observed a woman take the stage fully dressed and proceed to remove all her clothes. She then put on a ‘G-string’ bikini and began her dance. During the course of her routine, several patrons sitting near the stage held up paper money. When this occurred the dancer would come over to the edge of the stage and squat or kneel in front of a patron, who would then ‘stuff’ the money into the bottom portion of her bikini. In addition, she allowed some of the patrons to fondle her breasts. She also briefly exposed her breasts and genital area several times during her dance. After she finished, another woman came on stage and performed a similar routine. The officers observed that the defendant was present on this occasion.

“On the evening of January 9, 1980, the officers returned to the cafe and again observed two similar dances. On this occasion, however, the defendant was not seen on the premises.

“Based on these observations, Kenary submitted an application for an arrest warrant with accompanying affidavits in which he attested that there was probable cause to believe the defendant was guilty of four counts of promoting an obscene performance, two on December 19, 1979, and two on January 9, 1980. The *616warrant was issued on January 17,1980, and executed the following day.” State v. Heinz, 38 Conn. Sup. 570, 571-72, 455 A.2d 346 (1982).

I

The defendant’s appeal questions the Appellate Session’s order granting him a new trial on the first count of the information. He maintains that: (1) his motion to dismiss should have been granted because there was no probable cause for his arrest; (2) his motions for acquittal should have been granted because the state failed to establish the essential elements of the crime beyond a reasonable doubt; and (3) disputed evidence about liquor control commission regulations should be entirely barred from his retrial. We find these claims of error unpersuasive.

A

The defendant argues that the application for the arrest warrant and the supporting affidavits of Officer Kenary failed to provide information sufficient to establish probable cause for his arrest for violation of General Statutes § 53a-194 (a). In the absence of probable cause, under the holding of State v. Licari, 153 Conn. 127, 132-34, 214 A.2d 900 (1965), he was, he claims, entitled to dismissal of count one. Although the state, in order to test the continuing validity of State v. Licari, concedes that the arrest warrant failed to recite probable cause, that concession cannot compel this court to find error in the judgment to the contrary reached by both the trial court and the Appellate Session. We have decided to consider this issue on the merits.

The validity of an arrest warrant depends upon whether the application for the warrant and the accompanying affidavit establish probable cause to believe that: (1) a crime has been committed; and (2) the per*617son to be arrested committed that crime. General Statutes § 54-2a (a) (1);1 Practice Book § 593; State v. Daley, 189 Conn. 717, 720, 458 A.2d 1147 (1983); State v. DeChamplain, 179 Conn. 522, 529, 427 A.2d 1338 (1980); 1 LaFave, Search and Seizure (1978) § 3.7. The affidavit must recite sufficient facts so that the judicial officer who issues the warrant can, relying solely on the information thus brought to his or her attention, make an independent determination that probable cause exists as to each element of every crime charged. U.S. Const., amends. IV and XIV; Conn. Const., art. I, § 7; Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983); Whiteley v. Warden, 401 U.S. 560, 565 n.8, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971); State v. Bember, 183 Conn. 394, 409-10, 439 A.2d 387 (1981); State v. Jackson, 162 Conn. 440, 443, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972).

In our review to determine the sufficiency of an affidavit to establish probable cause we operate under two constraints. One inheres in the standard of probable cause to arrest. That standard is less demanding than that which attends an inquiry into whether there has been a prima facie showing of criminal activity. See Practice Book § 815 (5). Instead, all that is required is that the affidavit, read in a common-sense manner, give objective evidence of a fair probability that proscribed activity has occurred. Illinois v. Gates, supra, 2330, 2332; Torres v. Puerto Rico, 442 U.S. 465, 471, 99 S. Ct. 2425, 61 L. Ed. 2d 1 (1979); Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 21 L. Ed. 2d *618637 (1969); State v. Jackson, supra, 445. The other constraint inheres in the substantial deference to be accorded to the decision of the judicial authority that issued the warrant. That deference is mandated by our constitutions’ strong preference that arrests, like searches, are normally to be conducted pursuant to a warrant. Massachusetts v. Upton, 466 U.S. , 104 S. Ct. 2085, 80 L. Ed. 2d 721 (1984); Illinois v. Gates, supra, 2331, United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); State v. Bember, supra, 412-13; State v. DeChamplain, supra, 527, 533; State v. Jackson, supra, 445.

Recognizing these constraints, we must examine the affidavits before us to determine whether they establish probable cause that the defendant committed the crime of promoting an obscene performance under General Statutes § 53a-194.2 The crime described by that stat*619ute contains three essential elements: (1) the accused must have knowledge of the content and character of the performance; (2) the accused must have promoted the performance; and (3) the performance must have been obscene. The defendant challenges the sufficiency of the affidavits with respect to each of these elements. He thus puts into issue both the commission of a crime and his own participation therein. We conclude that there was probable cause to issue a warrant with respect to the first count.

The two affidavits of Officer Kenary related to events that transpired on December 19,1979, and January 9, 1980.3 They indicated that, on each date, Kenary, *620accompanied by Hartford Police Officer Malcolm, had entered the Venus Lounge in East Hartford, and had there observed performances, specifically described, involving dancers who, while scantily clad, had engaged *621in repeated physical encounters with customers in exchange for gratuities. The affidavit concerning the December 19 incidents identified the defendant as the permittee of the Venus Lounge. The accompanying affidavit concerning the January 9 incidents did not *622expressly identify the defendant as the permittee but stated that “the permittee . . . was not seen” by the officers. On December 19,1979, the defendant was present during the performances, while on January 9, 1980, he was not.

*623A common-sense reading of the affidavits attests to probable cause to arrest the defendant for violation of § 53a-194 on December 19, 1979, the crime with which he was charged in the first count. From the representations concerning the defendant’s presence and his status as permittee, the judicial authority could reasonably infer that the defendant had knowledge of, and was promoting, the performances which had taken place. See General Statutes § 53a-193 (e).4 It is permissible to rely on circumstantial evidence of these elements to establish probable cause. State v. Andrews, 150 Conn. 92, 103, 186 A.2d 546 (1962); State v. Sul, 146 Conn. 78, 87, 147 A.2d 686 (1958). Finally, the detailed description of the performances sufficiently establishes probable cause that they were obscene as that term is defined in General Statutes § 53a-193 (a).5

We are unpersuaded by the defendant’s arguments to the contrary. The standard of proof when the issue is probability is not illuminated by reference to cases such as State v. Harrison, 178 Conn. 689, 694-96, 425 A.2d 111 (1979), where the issue was proof at trial. Correct interpretation of the obscenity statute is not assisted by references to unrelated civil regulatory statutes such as that involved in Mack v. Saars, 150 Conn. 290, 304, 188 A.2d 863 (1963). The clear-cut affida*624vits in this case cannot be faulted with being self-contradictory, as were those in State v. Saidel, 159 Conn. 96, 99, 267 A.2d 449 (1970). Finally, the issuance of the arrest warrant in this case does not violate the defendant’s constitutional right of free speech. The formal attributes of the arrest warrant minimize its potential for intrusion into constitutionally protected domains. The warrant was supported by affidavits which contain a detailed description of repeated performances viewed by the affiant himself at designated times in a designated place. This warrant is thus a far cry from the general warrants for search and seizure of obscene materials, based on conclusory allegations, which were condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979); and Marcus v. Search Warrant, 367 U.S. 717, 731-33, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961). As we have noted previously, because arrests are inherently less apt to be intrusive than are searches, there is a difference in the constitutional standards by which probable cause to arrest and probable cause to search are measured. The probable cause determination in the context of arrest warrants requires inquiries that are less complex constitutionally than are those that pertain to search warrants. State v. DeChamplain, 179 Conn. 522, 530, 427 A.2d 1338 (1980); 1 LaFave, Search and Seizure (1978) § 3.1 (b). The warrant was properly issued.

B

The defendant next claims that the trial court erred in failing to grant his motions for judgment of acquittal on count one. In this regard, the defendant no longer contests the sufficiency of the evidence at trial to prove that the performances at the Venus Lounge were obscene. On this appeal, he argues that there was insufficient evidence to establish beyond a reasonable *625doubt either his knowledge of the content and character of the performances, or of his promotion thereof. We find no error.

The standard by which we review motions for acquittal is not in doubt. “ ‘When a verdict is challenged because of insufficient evidence, the issue is whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Ruiz, 171 Conn. 264, 276-77, 368 A.2d 222 (1976); State v. Benton, 161 Conn. 404, 407, 288 A.2d 411 (1971). It is the province of the jury to draw reasonable and logical inferences from the facts proved. State v. Williams, 169 Conn. 322, 336, 363 A.2d 72 (1975). There is no distinction between direct and circumstantial evidence so far as probative force is concerned; State v. Cari, 163 Conn. 174, 179, 303 A.2d 7 (1972); and the evidence must be given a construction most favorable to sustaining the jury’s verdict. State v. Brown, 169 Conn. 692, 695, 364 A.2d 186 (1975).’ State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); see State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983). We do not sit as [an additional] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. See State v. Martin, 189 Conn. 1, 9, 454 A.2d 256 (1983); Kaplan v. Kaplan, [186 Conn. 387, 391, 441 A.2d 629 (1982)]; State v. Festo, 181 Conn. 254, 260-61, 435 A.2d 38 (1980).” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

The evidence adduced at trial with respect to the defendant’s knowledge of the content and character of the performance focused on his presence at the *626Venus Lounge during the obscene performances. The performances took place on an elevated stage at one end of a large room at a time when the defendant was seen sitting at the bar at the other side of the room. From where he was seated, the defendant could clearly see the stage, which was only fifteen feet away. Despite the fact that there was no direct evidence that the defendant was seen looking in the direction of the stage, the jury could reasonably and logically have inferred his knowledge. State v. Andrews, 150 Conn. 92, 103, 186 A.2d 546 (1962); State v. Sul, 146 Conn. 78, 87, 147 A.2d 686 (1958). There was no persuasive evidence that the performances represented aberrant isolated departures from previously established innocuous routines. The evidence clearly sufficed on this element of the crime with which the defendant was charged.

The evidence similarly sufficed to permit the jury to find that the defendant had promoted the performances. In its bill of particulars, the state alleged that the defendant had “provided, presented, exhibited, advertised, produced, directed, [and] participated in” the performances. The state’s evidence at trial showed that the defendant was the co-owner and permittee of the Venus Lounge. The defendant, through his manager, hired the performers. The defendant’s manager testified that, in the main, it was his job to watch the cash register rather than to mind the show. Although the defendant had posted rules forbidding some aspects of the obscene performances, and although, on occasion, the defendant or his manager had stopped the show when the performers were violating the rules, there was evidence from which the jury could have inferred that these control measures were not seriously or regularly enforced by the defendant. Taken together with the evidence relating to the defendant’s knowledge, this evidence met the requirements of our statute. See People v. Better, 33 Ill. App. 3d 58, 67, 337 N.E.2d 272 *627(1975); Seattle v. Marshall, 83 Wash. 2d 665, 672, 521 P.2d 693, cert. denied, 419 U.S. 1023, 95 S. Ct. 499, 42 L. Ed. 2d 297 (1974).

C

The defendant’s final claim of error relates to the admission, at his trial, of the testimony of Charles H. Holland, supervisor of the inspectors of the liquor control commission of the state of Connecticut. Holland testified that regulations of the liquor control commission which defined the status of a permittee made the defendant strictly accountable for the activities at the Venus Lounge. The Appellate Session agreed with the defendant that the testimony was improper as to its manner and form. Although the trial court would have been entitled to take judicial notice of the regulations of the liquor commission, it was improper to permit the witness to offer his expert interpretation of the regulations when that testimony was, in effect, the statement of a legal opinion about the guilt of the defendant. State v. Heinz, 38 Conn. Sup. 570, 577-78, 455 A.2d 346 (1982). On this appeal, the defendant argues that the Appellate Session did not go far enough in limiting the use of the liquor regulations upon retrial.

When this claim of error was presented to the Appellate Session, the defendant conceded, as he had at the trial, that the trial court was entitled to take judicial notice of the liquor control commission regulations. See States. Vachon, 140 Conn. 478, 483-84, 101 A.2d 509 (1953); Roden v. Connecticut Co., 113 Conn. 408, 416, 155 A. 721 (1931); Tait & LaPlante, Handbook of Connecticut Evidence § 6.3a (2) (1976). On this state of the record, the defendant cannot now be heard to say that the Appellate Session erred in concluding that the regulations, upon a new trial, might be relevant and admissible as probative of the defendant’s control over the premises, if evidentiary use of the regulations is *628properly limited. As the Appellate Session correctly held, testimony which purports to use the regulations as a basis for an expert opinion holding the defendant strictly accountable constitutes a misuse of the regulations, because it invades the defendant’s right to have a jury determine his guilt or innocence. See Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Reid, 154 Conn. 37, 40-41, 221 A.2d 258 (1966); Beckanstin v. Liquor Control Commission, 140 Conn. 185, 190-91, 99 A.2d 119 (1953). There was no error in the Appellate Session’s rulings on this point.

In summary, we reject each and every claim of error raised by the defendant on his appeal to this court on count one of the information. In accordance with the judgment of the Appellate Session, he is, however, entitled to a new trial on this count.

II

The state has appealed from that part of the judgment of the Appellate Session which, having found no probable cause to arrest the defendant on counts three and four of the information, relied upon State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), to dismiss those charges against him.6 The state again concedes the *629absence of probable cause. The thrust of its appeal is to urge us to reconsider and to overrule Licari’s holding that a defective arrest warrant requires a court to dismiss the information for lack of jurisdiction over the defendant’s person. Absent Licari, the state argues, the defendant’s conviction on counts three and four should be reinstated. We agree with the state that the Appellate Session erred in its judgment with respect to counts three and four, but for a somewhat different reason.

The present case does not require us to overrule Licari, although it does serve to illustrate the fragility of its jurisdictional underpinnings. Under federal law, the fact that a person has been illegally arrested or detained will not void a subsequent conviction. United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); State v. Gallagher, 191 Conn. 433, 438, 465 A.2d 323 (1983); State v. Haskins, 188 Conn. 432, 442, 450 A.2d 828 (1982); see Borden & Jaffe, “The Trouble with Licari: Irony and Anomaly,” 55 Conn. B.J. 463, 465-69 (1981). Under state law, whatever might be required by the state constitution in other circumstances; see, e.g., State v. Federici, 179 Conn. 46, 61-62, 425 A.2d 916 (1979); this defendant has no jurisdictional defense to his prosecution under counts three and four of the information against him. That conclusion follows inescapably from our holding, in part I of this opinion, that there was probable cause to arrest the defendant on count one of the information. Had the state elected in the first instance to charge the defendant with only this one count, the state might subsequently have amended the information to add counts two, three and four. See *630Practice Book § 623.7 The defendant might have objected to such an amendment, but not on jurisdictional grounds. The defendant would thereafter have been entitled to seek dismissal of the charges on counts three and four because of insufficiency of the evidence to justify the continuing of the information against him; Practice Book § 815 (5);8 but, again, not on jurisdictional grounds. It would be elevating form over substance to erect a jurisdictional barrier to the state’s prosecution because the state proceeded with one piece of paper rather than with two. We decline to extend Licari to a case such as this one, where an arrest warrant properly establishes probable cause for some of the counts of the information under which the defendant is charged.

The Appellate Session was therefore in error in concluding that, in the absence of probable cause, the charges in counts three and four had to be dismissed. We also disagree, however, with that court’s conclusion that there was insufficient probable cause.

The Appellate Session’s holding on probable cause focused on the defendant’s absence from the premises on January 9,1980, to conclude that the affidavits did *631not give rise to a reasonable inference that the defendant had knowledge that the content and the character of the performances at the Venus Lounge on this occasion were obscene. We believe that this conclusion fails to take into account the fact that the performances on that date were essentially similar to the performances which took place three weeks earlier, when he was present. Read in conjunction with each other, Officer Kenary’s two affidavits established probable cause to arrest the defendant for knowingly promoting obscene performances on both dates.

On the state’s appeal, therefore, the judgment of the Appellate Session with regard to counts three and four must be set aside. That court did not have the occasion to resolve other claims of error that the defendant raised when he appealed his conviction on these two counts. The case must therefore be remanded to the Appellate Court9 for further consideration on these unresolved claims.

There is no error in the defendant’s appeal to this court; there is error in the state’s appeal to this court; on counts three and four, the judgment is set aside and the case is remanded for further proceedings in the Appellate Court in accordance with this opinion.

In this opinion the other judges concurred.

State v. Heinz
193 Conn. 612

Case Details

Name
State v. Heinz
Decision Date
Jul 10, 1984
Citations

193 Conn. 612

Jurisdiction
Connecticut

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