Petition for Writ of Certiorari — Hobson v. Connecticut

—

Supreme Court. U.S.

86 8 78 EI1LED

NOV 22 1986

IN THE

JOSEPH F. SPANIOL, JR:

SUPREME COURT OF THE UNITED ST ES CLERK 4

) neal

OCTOBER TERM, 1986 :

NO.

GLADYS HOBSON,

Petitioner

Vv.

STATE OF CONNECTICUT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE APPELLATE COURT OF THE

STATE OF CONNECTICUT

JOHN R. WILLIAMS,

SUE L. WISE

WILLIAMS AND WISE

265 Church Street

New Haven, CT 06510

Counsel for Petitioner

November 20, 1986

—

i

QUESTION PRESENTED

) Did the Ccnnecticut Appellate

Court unconstitutionally dilute the

harmless error doctrine by failing to

require the State of Connecticut to prove

beyond a reasonable doubt that the

erroneous admission of illegally seized

evidence against petitioner did not

contribute to her conviction?

(i)

TABLE OF CONTENTS

Page

OPINION BELOW. .cccccccccccccccccccece 2

JURISDICTION. cccccccccccccccs eccccece 3

QUESTIONS PRESENTED... ...ccccccccccecs +

CONSTITUTIONAL PROVISION............4. 5

STATUTES INVOLVED. ..cccccccccccccccces 6

STATEMENT OF THE CASE... ccccccceccccces 7

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE CONNECTICUT

APPELLATE COURT CONFLICTS WITH

THE DECISION OF THIS COURT IN

DELAWARE V. VAN ARSDALL, U.S.

» ave S.C. 143i (1986)..... 12

(jj (]}j}]]}] tenet eeceeecececeseeeeees 19

(ii)

TABLE OF AUTHORITIES

CASES: Page

Bundy v. Florida,

U.S. ,

107 S.Ct. (1986)....-ee- 14

Chambers v. Maroney,

399 U.S. 42,

90 S.Ct. 1975 (1970).... 13

Chapman v. California,

386 U.S. 18,

87 S.Ct. 824 (1967)..... 13, 14,

15, 16

Delaware v. Van Arsdall,

Ff ar

106 S.Ct. 1431 (1986)... 12, 17

Fahy v. Connecticut,

357 0.8. $85,

84 S.Ct. 229 (1963)..... 15

Harrington v. California,

395 U.S. 250,

89 S.Ct. 1726 (1969).... 13, 16

Rose v. Clark,

U.S. ’

106 S.Ct. 3101 (1986)... 12

(iii)

ARTICLES: Page

Field, Assessing The Harm-

lessness Of Federal

Constitutional Error

-- A Process In Need

Of A Rationale, 125

U. Pa. L. Rev. 15

(E976) ccccecdsesseéeoses AS

Note, 83 Harv. L. Rev. 814,

876 th eg. | Perro ere 15

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

NO.

GLADYS HOBSON,

Petitioner

Vv.

STATE OF CONNECTICUT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE APPELLATE COURT OF THE

STATE OF CONNECTICUT

The petitioner, GLADYS HOBSON,

respectfully prays that a writ of

certiorari be issued to review the judg-

ment and opinion of the Appellate Court of

the State of Connecticut entered in this

proceeding on June 24, 1986.

2

OPINION BELOW

The opinion of the Appellate Court of

the State of Connecticut is reported at 8

Conn. App. 13 (1986) and appears in the

appendix hereto. The pertinent part of

that decision appears in the appendix

hereto at pages 14a~-22a.

JURISDICTION

The opinion of the Appellate Court of

the State of Connecticut was entered on

June 24, 1986. A timely motion to reargue

was denied on August 8, 1986, and a timely

petition for review of the Appellate Court

decision by the Supreme Court of the State

of Connecticut was denied on September 24,

1986. This petition for certiorari has

been filed within 60 days of that date.

This Court's jurisdiction is invoked under

28 U.S.C. §1257(3).

4

QUESTIONS PRESENTED

Bs Did the Connecticut Appellate

Court unconstitutionally dilute the

harmless error doctrine by failing to

require the State of Connecticut to prove

beyond a reasonable doubt that the

erroneous admission of illegally seized

evidence against petitioner did not

contribute to her conviction?

3

CONSTITUTIONAL PROVISION INVOLVED

AMENDMENT IV...The right of the people

to be secure in their persons, houses,

papers, and effects, against unreasonable

searches and seizures, shall not be

violated, and no warrants shall issue, but

upon probable cause, supported by oath or

affirmation, and particularly describing

the place to De searched, and the persons

or things to be seized.

6

STATUTES INVOLVED

General Statutes §53a-119(8) provides

in pertinent part: "A person is guilty of

larceny by receiving stolen property if he

receives, retains, or disposes of stolen

property knowing that it has probably been

stolen or believing that it has probably

been stolen, unless the property is

received, retained or disposed of with

purpose to restore it to the owner.”

General Statutes §53a-124(a) provides

in pertinent part: "A person is guilty of

larceny in the third degree when he

commits larceny as defined in section

53a-119 and: (1) The value of the property

or service exceeds one thousand dollars."

7

STATEMENT OF CASE

In September 1982, a New Haven police

officer obtained a search warrant to

authorize the search of Gladys Hobson's

home for drugs which the officer believed

were being sold by one of Mrs. Hobson's

adult sons who lived with her. While

executing that warrant, Officer Datillo

observed many articles of clothing of

differing sized, some with store tags

still attached, various kinds of consumer

goods, including stereo equipment, five

television sets, cameras, projectors and

numerous pieces of jewelry in various

rooms of the Hobson home. Because of the

quantity and diversity of goods, the

officer suspected that some of the

merchandise was stolen. Through a later

computer check the officer determined that

8

two of the items, a Sony television set

and a handgun had been reported stolen.

Based on this information, the officer

obtained a second warrant authorizing him

to search Mrs. Hobson's home and person

and to seize only the television set and

the gun.

On October 7, 1982 the officer,

accompanied by other New Haven police

officers, entered the Hobson home to

execute the second warrant. The two

items, the television and the gun, which

were specified in the warrant, the police

knew from their previous visit, were

located in Mrs. Hobson's bedroom. While

in Mrs. Hobson's bedroom, the police saw

on or around the Mrs. Hobson's dresser, a

pocket watch, a pin, a bracelet, an

earring, a few coins and a ring. The

9

police seized those items.

Despite the fact, that the television

and gun, the only two items specified in

the warrant, had been found in the

Mrs. Hobson's bedroom, the police went on

to search several rooms of the home in-

cluding the attic. They seized 148 items,

some of which appeared on their face to be

stolen. However, they seized from the

attic, a creamer, sugar bowl, gravy ladle

and tray. There was nothing about the

dresser items or the items seized from the

attic which in any way identified them as

stolen. The seized items were subsequent-

ly displayed at police headquarters and a

few of the items were identified as

stolen.

Prior to trial, the Hobson moved to

suppress all of the physical evidence

seized. (App. D), The trial court

10

denied the motion to suppress. (App. p.3d)

After a trial to the jury, the

petitioner was convicted of larceny in the

third degree in violation of General

Statutes §53a-119(8) and §53a-124.

On appeal, Gladys Hobson contended

that the trial Court erred in failing to

suppress the television set, the gun, the

items taken from her dresser, and the

items taken from the attic. The

Connecticut Appellate Court ruled that the

seizure of the dresser top items comported

with the plain view doctrine and was

permissible. However, the Appellate Court

determined that the search of the attic

and the seizure of several items located

in the attic, exceeded the scope of the

search as authorized in the warrant, and

that these items should have been

11

suppressed by the trial Court. The

Appellate Court found, however, that the

failure of the trial Court to suppress

these items was harmless error. The

Appellate Court opined, that since there

was expert testimony that the television

set, gun and items seized from the dresser

top were vaiued at "approximately

$1,042.63," there was sufficient evidence

from which the jury could have concluded

that the defendant committed larceny in

the third degree. (8 Conn. App. 13; App.

ppl4a-22a) The Appellate Court,

therefore, affirmed the conviction.

12

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE CONNECTICUT

APPELLATE COURT CONFLICTS WITH THE

DECISION OF THIS COURT IN

DELAWARE V. VAN ARSDALL, U.S. ’

106 S. Ct. 1431 (1986).

In Delaware v. Van Arsdall, U.8. ~*»

106 S.Ct. 1431 (1986) and in Rose v.

Clark, U.S. , 106 S.Ct. 3101 (1986)

this Court reaffirmed the principle "that

an otherwise valid conviction should not

be set aside if the reviewing court may

confidently say, on the whole record, that

the constitutional error was harmless

beyond a reasonable doubt." 106 S.Ct.

1431.

While agreeing with petitioner that

the seizure of certain items taken from

the attic of her home violated her Fourth

Amendment rights, the Connecticut

Appellate Court concluded that the

13

admission of these items in evidence was

harmless error. In deciding that this

Fourth Amendment error, obviously of

constitutional dimension, was harmless

error, the Appellate Court failed to

properly apply the harmless error standard

as promulgated by this Court.

It is well-established that Fourth

Amendment violations are subject to

harmless error analysis. Chambers v.

Maroney, 399 U.S. 42, 90 S.Ct. 1975 (1970);

Nevertheless, under Chapman v. California,

386 U.S. 18, 87 S.Ct. 824 (1967) and

Harrington v. California, 395 U.S. 250, 89

S.Ct. 1726 (1969) overwhelming evidence of

guilt must be present in order for a

reviewing court to find that error of

constitutional magnitude is harmless.

Chapman required that the beneficiary, the

14

State, of a constitutional error, prove

beyond a reasonable doubt that the error

complained of did not contribute to the

verdict obtained. See Bundy v. Florida,

0.8. , 107 S.Ct. (1986) (dissent

from denial of petition for certiorari,

Brennan, J.) Chapman also required the

reversal of a conviction where there was a

"reasonable possibility that the evidence

complained of might have contributed to

the conviction." The Connecticut

Appellate Court did not apply either of

these standards to the case at bar.

Chapman unequivocally required that

"before a federal constitutional error can

be held harmless, the Court must be able

to declare a belief that it was harmless

beyond a reasonable doubt." As this Court

has made clear, an error in admitting

15

plainly relevant evidence which possibly

influenced the jury adversely to a

litigant cannot be conceived of as

harmless. Fahy v. Connecticut, 357 U.S.

85, 84 S.Ct. 229 (1963) See Field,

Assessing The Harmlessness Of Federal

Constitutional Error -- A Process In Need

Of A Rationale, 125 U. Pa. L. Rev. 15

(1976). As Professor Field has noted

there is language in Chapman supporting

the position that "in assessing harmless-

ness of federal constitutional error, one

should focus on the incriminating quality

of the erroneously admitted evidence

instead of weighing the untainted evidence

in the case". See also, Note, 83 Harv. L.

Rev. 814, 876 (1970).

Because the Appellate Court failed to

make this crucial harmless error analysis,

16

this Court should grant certiorari to

properly apply the principles of Chapman

and Harrington.

Furthermore, in deciding that the

constitutional error was harmless, the

Appellate Court relied on expert testimony

to establish that the value of the “prop-

erly" seized items was “approximately

$1,042.65." On its face, the decision of

the Appellate Court fails to establish

either the overwhelming evidence of guilt

standard or guilt beyond a reasonable

doubt. As this Court made clear in

Chapman: "We must recognize that harmless-

error rules can work unfair and

mischievous results when, for example,

highly important and persuasive evidence

though legally forbidden, finds its way

into a trial in which the question of

17

guilt of innocence is a close one." 386

u.S. 18, 22 In the case at bar, the guilt

or innocence of Mrs. Hobson, after the

exclusion of the illegally seized items,

was by no means a foregone conclusion.

The Appellate Court based its harmlessness

analysis on the "approximate" valuation of

an expert witness who established that the

legally seized items may have been worth

forty-two dollars more than the statute

allowed. Furthermore, the Appellate Court

failed to consider the impact on the jury

of the cumulative admission of this body

of ostensibly stolen items.

As Chief Justice Rehnquist pointed out

(albeit in the Sixth Amendment) in

}

Delaware v. Van Arsdall, supra, "Whether

such an error is harmless in a particular

case depends upon a number of factors,

18

including the importance of the [illegal

evidence], whether the [illegal evidence]

was cumulative, the presence or absence of

corroborating or contradictory [evidence]

on material points, and the overall

strength of the prosecution's case." [In

the case at bar the evidence of guilt was

extremely slim; the illegally seized

evidence, which the jury was allowed to

consider, certainly unconstitutionally

contributed to the conviction. ze

certainly cannot be said that the error

was harmless beyond a reasonable doubt.

19

CONCLUSION

For these reasons, in order to prevent

dilution of the harmless error doctrine in

the context of the Fourth Amendment, a

writ of certiorari should issued to review

the judgment and opinion of the Appellate

Court of the State of Connecticut.

Respectfully submitted,

SUE L. WISE

51 Elm Street

New Haven, CT 06510

(203) 562-9931

November 21, 1986