State v. Eichstedt

Berdon, J.,

dissenting. Although the defendant clearly raises four claims of error, at least two of which have state constitutional underpinnings, her briefings of them do not warrant appellate review. The defendant’s initial brief contains a total of no more than three pages of argument, and her reply brief, one and one-half pages. Although “[bjrevity is the soul of wit,”1 there must be sufficient amplification to make an intelligent argument. The briefs fail in this regard.

*402The defendant makes broad recitations of law without attempting to relate them to the specific issues. In arguing that the court should have included the defendant’s request to charge on the defense of entrapment in its instruction to the jury, she neither explained how this constituted error nor demonstrated that the subject was inadequately covered by the court’s instructions. As the majority points out, the defendant raises the issue of the sufficiency of the evidence with a one sentence argument that does not specify in what manner the evidence was deficient. Her claim that the trial court erred in failing to grant her motion to suppress is supported only by general allegations. Finally, she does not cite authority or even attempt to explain why she should have been able to call Robert Schoolnick as a defense witness when Schoolnick would have invoked his fifth amendment privilege not to testify.

Failure to research the law or formulate sufficient legal argument; see State v. Smith, 10 Conn. App. 624, 635, 525 A.2d 116, cert. denied, 204 Conn. 809, 528 A.2d 1156 (1987); or the making of bare assertions of error without legal citations; see State v. Knighton, 7 Conn. App. 223, 226, 508 A.2d 772 (1986); or failure to relate the facts of the case to the claims of law or present the court “with any legal analysis whatsoever”; see State v. Nelson, 17 Conn. App. 556, 576, 555 A.2d 426 (1989); precludes this court from a meaningful appellate review. State v. Hernandez, 204 Conn. 377, 382, 528 A.2d 794 (1987). Indeed, the defendant’s briefs made no reference to the transcript, and her appendix included neither the relevant portions of the charge, nor the search warrant with its supporting affidavit, as mandated by Practice Book § 4065. See State v. Ramsundar, 204 Conn. 4, 17, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).

*403The majority, in an endeavor to do justice, attempts to review these inadequately briefed issues without the benefit of counsel’s reasoned analysis. “Legal claims raised but not substantially briefed are burdensome to meet and difficult to decide correctly.” State v. Kennedy, 295 Or. 260, 266, 666 P.2d 1316 (1983). This is particularly the case in areas of emerging law such as state constitutional law. See H. Macgill, “Upon a Peak in Darien: Discovering the Connecticut Constitution,” 15 Conn. L. Rev. 7 (1982). “[A] judge rarely performs his functions adequately unless the case before him [or her] is adequately presented.” L. Brandeis, “The Living Law,” 10 Ill. L. Rev. 461, 470 (1916). In a case such as this, where state constitutional issues are raised, the advocacy of the court’s majority is insufficient to protect the rights of the defendant.

Although the right to appeal is statutory; General Statutes § 54-95; and there is no federal constitutional right to an appeal; Abney v. United States, 431 U.S. 651, 656, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977); once it is granted, the right “invokes so significant a protection of liberty that it must be made available to all persons convicted of crimes.” Gaines v. Manson, 194 Conn. 510, 515, 481 A.2d 1084 (1984). When the defendant is indigent, as in the present case, she is entitled to the assistance of counsel appointed by the state in the presentation of her appeal. Paulsen v. Manson, 193 Conn. 333, 338, 476 A.2d 1057 (1984). Futhermore, counsel must be reasonably competent. State v. Lubesky, 195 Conn. 475, 485, 488 A.2d 1245 (1985). This competency includes appropriately raising and developing issues in a manner that can afford a meaningful appellate review. Counsel’s “role as advocate requires that he support his client’s appeal to the best of his ability.” Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493, reh. denied, 388 U.S. 924, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (1967).

*404The remedy for counsel’s failure to represent the defendant adequately in this appeal is suggested in recent decisions of the Vermont Supreme Court. In State v. Jewett, 146 Vt. 221, 229, 500 A.2d 233 (1985), the court held that when counsel fails to develop diligently and to maintain plausibly state constitutional issues on appeal and there is a demonstration of “possible merit,” the court should order supplemental briefs addressing these issues.2 Id; see State v. Muir, 150 Vt. 549, 551, 554 A.2d 671 (1988); see also State v. Kennedy, supra. This requirement of supplemental briefs not only protects the rights of the individual defendant, but also fosters the development of state constitutional law.3 “This generation of . . . lawyers has an unparalleled opportunity to aid in the formulation of a state constitutional jurisprudence that will protect the rights and liberties of our people, however the philosophy of the United States Supreme Court may ebb and flow.” State v. Jewett, supra, 224.

Applying the “possible merit” standard of Jewett, I conclude that at least two state constitutional issues raised by the defendant should be pursued. The defendant’s claim that the trial court erred in finding that the search warrant was based on sufficient probable cause *405under the provisions of the search and seizure clause of the Connecticut constitution; Conn. Const., art. I, § 7; deserves further briefing. “Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” (Citations omitted; emphasis in original.) State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980).

Our Supreme Court has rejected the “totality-of-the-circumstances” analysis developed in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), to test the sufficiency of probable cause for search and seizure under the federal constitution. Under the search and seizure clause of our state constitution4 we continue to require the stricter standard of AguilarSpinelli. State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985). “That test, which stemmed from the United States Supreme Court’s opinions in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), consists of two prongs: ‘The issuing [judge] must be informed of (1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.’ ” State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d *406401 (1984), quoting State v. Jackson, 162 Conn. 440, 446, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972).

The issue is whether there was probable cause on the date of the warrant to believe that the drugs would be found in the defendant’s automobile, and not probable cause to arrest her for the previous alleged sales she made to the undercover police. The state concedes that the search of the automobile was based upon the following paragraph in the supporting affidavit: “That during the early part of June, 1987, information was developed concerning the illegal narcotics trafficking of ANDREA L. EICHSTEDT, the manager of the Pateo Handy Shop located on Rt. 44 in North Canaan, Connecticut. This information was developed by the Western District Major Crime Squad of the Connecticut State Police Department. The information consisted of ANDREA EICHSTEDT dealing small quantities of cocaine from the backroom of the Pateo Handy Shop. That EICHSTEDT did not keep large quantities of cocaine at the store, but transport smaller quantities of cocaine to the store in her vehicle, which was reported to be a Pontiac Firebird, from her residence in Massachusetts.”

The affidavit does not indicate from whom the police obtained and developed the information that led the issuing magistrate to believe that the defendant would be transporting drugs in her automobile. The majority leaps to the conclusion that the information came from Leslie Norcia, a police undercover agent and one of the affiants on the search warrant. The affidavit, however, contains nothing that would indicate this information came from Norcia or any other informant. The majority seeks to bolster its conclusion that there was probable cause by stating that on July 9, 1987, one day before *407the issuance of the search warrant,5 the “defendant herself told Norcia of the planned trip to obtain more cocaine.” These facts are also not contained in the affidavit and were not before the magistrate. “The reviewing court may consider only the information that was actually before the issuing judge at the time he or she signed the warrant.” State v. Schifflett, 199 Conn. 718, 746, 508 A.2d 748 (1986).

Even if we assume that the “information developed” was from an informant, it is questionable whether the affidavit could pass state constitutional muster by satisfying both prongs of Aguilar-Spinelli test to support a search of the automobile on the date of the affidavit. See State v. Velez, 20 Conn. App. 168, 565 A.2d 542 (1989). The issuing magistrate was given no basis upon which he could evaluate the source of the information necessary to find probable cause to search the automobile. Furthermore “[i]t is axiomatic that hindsight may not be employed in determining whether a prior arrest or search was made with probable cause.” 1 W. LaFave, Search & Seizure: A Treatise on the Fourth Amendment (2d Ed.) § 3.2 (d). Surely, the issue has possible merit under our state constitution and should be argued by an advocate for the defendant, instead of being reviewed in a vacuum by this court.

The issue of whether the defendant was deprived of her state constitutional rights to bring witnesses before the jury, to present a defense and for compulsory process,6 when she was barred from calling Schoolnick as *408a witness, notwithstanding his claim that he would have refused to testify on the ground that it would tend to incriminate him, also deserves to be raised through appropriate legal analysis. Our Supreme Court, after taking into account a defendant’s sixth amendment federal constitutional rights, adopted the general rule set forth in Bowles v. United States, 439 F.2d 536 (D.C. Cir. 1970), cert. denied, 401 U.S. 995, 91 S. Ct. 1240, 28 L. Ed. 2d 533 (1971), that the defendant may not call a witness for the sole purpose of having him invoke his privilege against self-incrimination.7 State v. Bryant, 202 Conn. 676, 685, 523 A.2d 451 (1987). Justice Healey, however, writing for a unanimous court, stated that they could “imagine a case in which a defendant’s constitutional right to call witnesses on his behalf might arguably require that the witness who refuses to testify be called . . . .” Id., 686.8

In this case, the defendant took the witness stand and admitted the sale of drugs. She claimed, however, the defense of entrapment by Schoolnick who was acting on behalf of the state police. The defendant testified that she sold drugs only after the persistent insistence of her friend, Schoolnick, and only after he threatened to inform her employer that she used drugs. *409She further testified that Schoolnick supplied the drugs she sold to the undercover police officer and that Schoolnick received the proceeds of the sale. Evidence of unlawful inducement may be found where the police or an agent acting on their behalf appeal to the defendant’s sympathy or friendship, or where they repeatedly or persistently solicit the defendant to commit the crimes. State v. Fine, 159 Conn. 296, 300, 268 A.2d 649 (1970).

Unlike the paucity of the evidence in Bryant to implicate the witness as the culprit, there was substantial evidence in this case to indicate that Schoolnick was the agent of the state whose friendship with the defendant and persistence allegedly induced her to sell drugs for him. Because she could not call Schoolnick, her defense of entrapment was made to appear less credible in the eyes of the jury. See Bowles v. United States, supra, 544 (Bazelon, C. J., dissenting). This case might very well fit into the mold of the exception that the Supreme Court envisioned in Bryant, and the defendant should be given an opportunity to develop this argument.

The defendant, who received a sentence of two concurrent terms of eight years, is entitled to a meaningful appellate review of the issues she raised. Her liberty is at stake and we should not pass her claims off simply because some time down the road she may get relief through habeas corpus for ineffective assistance of counsel. It may be, when all is said and done, that there is no merit to her appeal, but at least it then could be said that the defendant had her day of justice before this court.

In summary, I would order the parties to prepare and file supplemental briefs and appendices addressing the state constitutional and other issues raised in the defendant’s brief, and that a copy of this court’s deci*410sion be directed to the chief public defender. Accordingly, I respectfully dissent.

W. Shakespeare, Hamlet, act 2, sc. 2, line 90.

The Vermont Supreme Court also reviewed the manner in which state constitutional issues should be developed through the historical (including legislative history), textual, sibling and economic and sociological approaches. State v. Jewett, 146 Vt. 221, 227, 500 A.2d 233 (1985); see E. Peters, State Constitutional Law: Federalism in the Common Law Tradition, 84 Michigan L. Rev. 583 (1986).

It would be consistent with the Connecticut rules of practice to order counsel to submit a supplemental brief on state constitutional issues inadequately treated in an initial brief. Practice Book § 4061 provides, in part, that “[i]t is the responsibility of the appellant to provide an adequate record for review.” Section 4065 provides, among other things, that the appellate court may refuse to receive a brief not accompanied by a concise statement of the principal issues in the appeal. No rule of practice, however, prevents this court from ordering defense counsel to submit supplemental briefs when the original is inadequate.

“The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” Conn. Const., art. 1, § 7.

The date of this conversation is set forth in the general facts recited on page 397, supra, of the majority opinion.

“Section 8 of article first of the constitution is amended to read as follows: In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to *408a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.” Conn. Const., amend. XVII.

At the very least, under the general rule, the defendant is entitled to “a neutralizing instruction, one calculated to reduce the danger that the jury will in fact draw an inference from the absence of such a witness.” Bowles v. United States, 439 F.2d 536, 542 (D.C. Cir. 1970).

The Court specifically pointed out that it was not addressing the state constitutional rights of the accused. State v. Bryant, 202 Conn. 676, 684 n.8, 523 A.2d 45 (1987).