This post examines an opinion from the Appellate Court of Connecticut: State v. Spence, 2016 WL 1567017 (2016). The opinion begins by explaining that the
facts,
which the jury reasonably could have
found, and procedural history are relevant to this appeal. The state police
began investigating the defendant's activities when they received a tip that a
person with a Connecticut Internet protocol (IP) address was downloading child pornography
over peer-to-peer file sharing networks. Using a computer program tailored
for law enforcement, the state police accessed the identified IP address and
downloaded images of child pornography. The state police applied for and were
granted an ex parte order to require the Internet service provider to reveal
the name and street address associated with the identified IP address. The
state police then obtained a search warrant for the defendant's home.
On June 13, 2012, state troopers and
local police executed a search and seizure warrant at the defendant's home at
34 May Street in Fairfield. Police entered the home shortly after 6 a.m. and
found the defendant, his wife, three children, and mother-in-law in the single-family
residence. At that time, the lead investigator, state police Detective David
Aresco, asked the defendant if he could explain why the state police were in
his home. In response, the defendant asked if `he could speak with Detective
Aresco in private.’ Once outside, the defendant received a Miranda warning and then provided an oral and written statement
acknowledging that he had downloaded more than 150 images and videos of child
pornography and that he had exclusive control of the computer where the files
were stored.
State v. Spence,
supra.
Spence was convicted, “after a jury trial, of possession of
child pornography in the first degree in violation of [Connecticut] GeneralStatutes § 53a–196d (a)(1).” State v.
Spence, supra. The opinion explains
that, on appeal, Spence claimed that the
trial court committed error by (1) `denying
the defendant's motion to suppress his statements’ made to the police prior to
his formal arrest; (2) `giving a constructive possession instruction that
treated a computer as the equivalent of a premises’; and (3) `permitting the
state to offer rebuttal evidence on matters that it knew were at issue during
the case-in-chief.’
State v. Spence,
supra.
Prior to his trial, Spence
moved to suppress the statements he
made to the state police on the day his home was searched. On September 6,
2013, the trial court conducted a hearing on the motion. Ultimately, the trial
court denied the motion and the defendant was convicted by a jury of possession
of child pornography in the first degree.
State v. Spence,
supra.
The Appellate Court began its analysis of Spence’s argument
concerning his motion to suppress by explaining that he claimed the
trial court improperly denied his
motion to suppress his statements to the police on the day the search warrant
was executed at his home. Specifically, the defendant argues that when the
police entered his home and gathered together the residents in one room, based
on the circumstances, a reasonable person in his situation would believe he was
in custody. Accordingly, he claims that the police should have provided a Miranda warning before they asked any
questions. Prior to trial, the defendant sought to suppress his initial response
to Detective Aresco asking if he could speak to the detective `in private.’ He
also sought to suppress the oral and written statements he made after receiving Miranda warnings. The defendant argued that the lack of a Miranda warning
prior to his initial request to speak with the police in private tainted the
statements that followed.
State v. Spence,
supra.
The Appellate Court began its analysis of Spence’s argument
by explaining that the
search warrant was executed at the
defendant's home at approximately 6:10 a .m. on June 13, 2012. Eight to ten
state troopers and police officers entered the home. The officers were wearing
standard issue side arms, bulletproof vests, and clothes that identified that
they were law enforcement. The defendant was sleeping on the second floor when
the police arrived. After the police conducted a protective sweep of the rooms
in the home, they gathered the entire family into the kitchen or dining room
area.
Without issuing a Miranda warning,
Aresco informed the residents that he was investigating a computer crime and
then asked the defendant if he could explain why the police were in his home.
The defendant responded by asking if they could speak in private. The defendant
therefore was brought outside to an unmarked police car. He was advised of his Miranda rights
and signed a waiver notice to confirm that he was aware of his rights. The
defendant was questioned and Aresco recorded notes and prepared a written statement. The
three page written statement was read back to the defendant. After rereading it
and making corrections, the defendant signed the statement and initialed each
page. The questioning lasted for approximately one and one-half hours and the
defendant was allowed to take a cigarette break. The court held a hearing on
the motion to suppress that included testimony from Aresco and another state
trooper who was involved with the execution of the search warrant at the
defendant's home. The court denied the defendant's motion after concluding that
the defendant was not in custody when he initially responded to Aresco's
inquiry.
State v. Spence,
supra.
As Wikipedia explains, officers are only required to give
Miranda warnings when a suspect is in “custody” and is subject to
“interrogation.” The Appellate Court
took up that issue, explaining, initially, that
a reasonable person in the defendant's
position would not have believed that he was in police custody of the degree
associated with a formal arrest. On the basis of the facts that the trial court
reasonably could have found, the police presence did not overwhelm the
defendant to the point that a reasonable person would believe that he was in
custody.
Any questioning that occurred in the
defendant's home was informal in nature and short in duration. Aresco advanced
a general question that introduced his presence in the home. The defendant did
not answer the question. Instead, he effectively put off any discussion by
requesting to speak with the investigators in private. While inside the home,
the defendant was not handcuffed or restrained. The surroundings were familiar
to the defendant. He was in an open area of the home, and he was surrounded by
his family including other adults. While there were as many as ten police
officers in the home assisting with the execution of the search warrant, they
were not brandishing their weapons.
Considering the totality of the
circumstances, the trial court properly determined that the defendant was not
in custody and therefore a Miranda warning was not required. We do
note that Aresco did initiate the questioning and the defendant was not
informed by police that he was free to leave. These . . . factors weigh in
favor of a custodial environment, however, a consideration of the remaining
factors applied to this case compels the conclusion that a reasonable person in
the defendant's position would not have believed that he was in police custody
of the degree associated with formal arrest.
State v. Spence,
supra.
The Appellate Court therefore held that the trial court
judge “properly denied the motion to suppress the defendant’s statements.” State
v. Spence, supra.
The court then took up Spence’s argument that the trial
judge
erroneously instructed the jury on
constructive possession. The trial court instructed the jury that it could
infer that the defendant possessed the images of child pornography if it found
that the defendant had control of the computer that contained the images. The
defendant argues that the trial court was required to instruct the jury that it
could infer possession of pornography only if it found that the defendant had
control over the computer and the premises within which it was
found.
State v. Spence,
supra.
The opinion goes on to explain that
following additional facts are relevant
to the defendant's claim. During the course of the trial, Detective Aresco
testified that one computer was removed from the defendant's home as a result
of the execution of the search warrant on June 13, 2012. The computer was found
in the defendant's bedroom, and he told police that he kept it under his bed.
The defendant lived in the home with his wife, three children, and his wife's
parents. Aresco testified that other computers also were found in the home and
examined for child pornography, but only the defendant's computer was found to
contain the illicit images. In his statement to the state police, the defendant
stated that his computer was password protected and `I am the only person that
has that computer—that uses that computer.’
State v. Spence,
supra.
The court also noted that
[a]t the close of the trial, the court
instructed the jury regarding constructive possession: `The state has submitted
evidence in order to show that the defendant had control over the computer
where the video files were found. Control of the computer gives rise to the
inference of unlawful possession. And the mere access by others is insufficient
to defeat this inference. If it is proven that the defendant is the exclusive
owner of the computer where the video files were found, then you may infer that
he controlled the computer. However, when it is shown that ownership or use of
the computer is not exclusive, you may no longer make this inference. The
ability to control the computer must be established by independent proof.’ The
court also instructed the jury that in order to convict the defendant, they
were required to find beyond a reasonable doubt that he `knowingly possessed
the child pornography.’
State v. Spence,
supra.
The Appellate Court found that the trial court’s jury
instruction included an explanation of
each of the elements the jury had to find present in order to convict the
defendant of the alleged crime. Finding control of the home in this case
is not a requirement to infer possession of the contraband when the contraband
is contained within another object, here the computer, that itself could be
controlled and secured through the use of a password. `To mitigate the
possibility that innocent persons might be prosecuted for . . . possessory
offenses. . . it is essential that the state's evidence include more than just
a temporal and spatial nexus between the defendant and the contraband. . .
While mere presence is not enough to support an inference of dominion or
control, where there are other pieces of evidence tying the defendant to
dominion and control, the [finder of fact is] entitled to consider the fact of
[the defendant's] presence and to draw inferences from that presence and the
other circumstances linking [the defendant] to the crime.’ (Internal quotation
marks omitted). State v. Smith, 94 Conn. App. 188, 891 A.2d 974
(Appellate Court of Connecticut 2006). . . . It was not necessary for the jury
to find that the defendant controlled the premises in order to infer that he
possessed the child pornography.
State v. Spence,
supra.
The court then took up Spence’s last argument, i.e., that
the trial court abused its discretion
when it allowed the state to present rebuttal evidence concerning the clock
settings on the defendant's computer. Although the state had the opportunity to
present this evidence during its case-in-chief, the evidence in question became
relevant only when the defendant opened the door by presenting an alibi defense
that he was working when the pornographic images were downloaded.
State v. Spence,
supra.
The court also pointed out that the
following additional facts are relevant
to the defendant's claim. During the presentation of the state's case-in-chief,
defense counsel cross-examined Detective Aresco about the dates and times that
the pornographic images were downloaded to the defendant's computer. Defense
counsel provided Aresco with a copy of the state police computer analysis
report that had been generated following an examination of the defendant's
computer. Using the report to refresh his memory, Aresco read the dates and
times captured in the report for when specific files were downloaded. On
redirect examination, Aresco testified that based on his training, the report's
recorded download time was not reliable evidence.
On recross-examination, Aresco
testified that the file download times captured in the report may have been off
by at least two hours from the time when the files were actually downloaded by
the defendant because Aresco observed that the clock in the computer was set to
the Pacific time zone. The next day, after the state rested and
prior to the defense presenting any witnesses, the state informed the court
that following his testimony, Aresco had further reviewed file download times
and found that his testimony regarding a two hour difference in time was
incorrect.
Aresco was now prepared to testify that
when he examined the computer he observed a nine hour difference between the
clock in the defendant's computer and the `actual time.’ The state informed the
court and defense counsel that Aresco would be presented as a rebuttal witness.
The defendant objected to any rebuttal testimony regarding the time to which
the clock in the computer was set because he considered it to be new forensic
evidence that was available to the state before it rested its case. The trial
court deferred making a ruling on the objection so it could consider the
defendant's argument.
The defendant then called as his first
witness a manager from the bus company where he was employed. The manager
testified to the dates and times when the defendant drove his bus route. The
defendant sought to establish that he was driving a bus at the time that the
child pornography images were downloaded to his computer. This theory was
predicated on Aresco's earlier testimony regarding when each illicit image was
downloaded to the defendant's computer.
State v. Spence,
supra.
Next, the opinion explains that after Spence rested his
defense case, the trial judge
found that the defendant would not be
prejudiced by rebuttal testimony from Aresco because the defendant had been
given notice of the state's claim that the time recorded on the computer was
inaccurate. Aresco returned to the witness stand and testified that he had
been mistaken in his prior testimony and that he had observed a nine hour
difference between the time on the clock in the defendant's computer and the
`actual time.’ The defendant cross-examined Aresco about why his testimony
changed and the difference in time.
State v. Spence,
supra.
The Appellate Court found that this procedure did not
prejudice Spence:
On the basis of our review, we conclude
that the trial court did not abuse its discretion by permitting the state to
recall the pertinent witness to clarify an earlier representation as to when
child pornography was downloaded to the defendant's computer. The testimony was
proper rebuttal evidence. The defendant was on notice of the timing issue and
was able to cross-examine the witness on rebuttal. See State v. Cavell,
supra, 235 Conn. 728 (state
forensic analysis that was not relevant during case-in-chief was allowed as
rebuttal evidence). The state was not required to prove the timing of when the
child pornography was downloaded, only that the defendant was in possession of
it. It was the defense that made relevant the computer recorded download times.
State v. Spence,
supra.
It also noted that
[f]ollowing the defendant's
cross-examination of Aresco, the state took immediate steps to determine the
actual temporal discrepancy and informed the trial court and the defendant that
it would seek to introduce rebuttal evidence. Prior to presenting his defense,
the defendant was aware that the state was prepared to offer rebuttal evidence
regarding the computer time. The defendant did not seek a continuance to afford
himself time to address the state's additional evidence. The trial court was
within its discretion to allow the state to refute the testimony presented by
the defendant.
State v. Spence,
supra.
So, for these and other reasons, the court affirmed Spence’s
conviction. State v. Spence, supra.
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