DOCKET NO. CR99‑97546	SUPERIOR COURT
STATE OF CONNECTICUT	JUDICIAL DISTRICT OF
	LITCHFIELD
V.
	AT LITCHFIELD
SCOTT SMITH	MARCH 26,1999

RULING RE: DEFENDANT’S OFFER OF PROOF

On March 17, 1999, after a preliminary hearing was held, the court found that probable cause exists to allow the state to try the defendant for the offense of murder. Immediately thereafter, the defendant made a specific offer of proof, consisting of a written offer of proof, a written addendum to the offer of proof and exhibits in support of his offer of proof A memorandum of law accompanied the offer of proof The state filed a memorandum of law in opposition to the defendant's introduction of evidence, On March 23, 1999, the court received a reply memorandum from the defendant dated March 19, 1999. On March 24, 1999 the court received an addendum to the defendant's reply memorandum dated March 23, 1999. Under General  Statutes § 54‑46a, at the close of the prosecution's evidence at the probable cause hearing:

if the court finds that, based on the evidence presented by the Prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. 'Me court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.

		As set forth in the Statute the defendant is not necessarily permitted to
	present evidence.  The  court must first determine that the proffered evidence
	would be sufficient to rebut the finding of probable cause. State v. Conn, 234
	Conn. 97, 110 (1996), The proffered evidence in this case concerns the objective
	reasonableness of the defendant’s use of force. (See defendant's memorandum of
	law, p. 17). The specific offer of proof includes the following witnesses:

		I ‑ New Milford police officer Robert Cramer would testify as to the
		contents of his February 2, 1999 police report;

		2. New Milford police officer David Shorn would testify as to the
		contents of his December 29, 1998 police report and his February 2,
		1999 police report;

		3. New Milford police officer Steven Jordan would testify as to the
		contents of his December 29, 1998 police report and his February 2,
		1999 police report;

		4. East Hartford police officer Robert Kenary would testify as to
		taking aerial photographs of Heacock‑Crossbrook Road and a
		portion of Route 202 in New Milford, Connecticut and preparing a
		sketch of those areas;

5. Reginald Allard of the Connecticut Police Academy in Meriden
would testify that he was the defendant's instructor in the subjects of
Ihe mechanics of arrest and the police use of force, including deadly
force and self‑defense for police officers and th2t included in that
instruction was the viewing of nine videos concerning those subjects,
a video of practical exercise in which the defendant and other
recruits participated, a video entitled "Surviving Edged Weapons"
and a video entitled "Ultimate Survivors." He would testify that
under  all the circumstances and having read the defendant's four
page statement, that the defendant's use of deadly force on Franklyn
Reid was reasonable,

6. Michael Gabriel, emergency medical technician, New Milford
Volunteer Ambulance Corporation would testify as to the contents of
his December 29, 1998 statement and as to the location of Franklyn
Reid's body. The testimony proposed to be relevant as to the
location of the jacket containing a folding knife.

7. Guy W_ Wolf, 111, Senior Assistant State's Attorney of the
Judicial District of Litchfield would testify that prior to December
29. 1998, he requested that the New Milford police department
increase their efforts to locate and arrest Franklyn Reid on several 
arrest or re‑arrest warrants because of Franklyn Reid’s danger to the
community

8. New Milford police officer Earl Wheeler would testify that on
May 29, 1998, he and another  police officer attempted to arrest
Franklyn Reid pursuant to a warrant for violation of probation and
that during the process of handcuffing Franklyn Reid, he placed his
right hand in his front pocket which contained a large pocket knife;

9. New Milford police officer Scott Smith would testify to the
contents of his four page signed and notarized statement dated
December 3 1, 1998

	The offer of proof also specifies the following documentary and physical evidence:

		I. Notarized four page statement dated December 31, 1998 of Scott
		Smith concerning his use of deadly force on Franklyn Reid;

		2 Arrest warrant and supporting affidavit charging Franklyn Reid
		with four counts of threatening in new Milford on or about October
		16, 1998

		3 Arrest warrant and supporting affidavit charging Franklyn Reid
		with breach of peace and threatening in New Milford on or about
		September 4, 1998;

			
4. Arrest warrant and supporting affidavit charging Franklyn Reid
with violation of probation in Danbury on or about May 11, 1998;

5. Arrest warrant and supporting affidavit charging Franklyn Reid
with violation of probation "in Danbury on or about May It, 1998

6. Arrest warrant and supporting affidavit charging FranklynReid
with six counts of harassment in the second degree in Kent between
March 17, 1999 and March 19, 1998)

7. Sexual assault convict registration form of Franklyn Reid dated
March 17, 1997;

8. A folding knife with a serrated blade 2 3/4 inches in length which
was in the exterior unzippered right hand front pocket of a jacket in
Franklyn Reid's possession on December 29, 1998 when the defendant
attempted to arrest him. The knife is proposed to be relevant as to the
defendant's knowledge of Franklyn Reid's commission of prior crimes of
violence with a weapon and whether Franklyn Reid posed an immediate
threat of harm to the defendant;

9. Pennsylvania license #26146684 with the name Venro Cornelius
Mayo, issued 9/23/98, expiring 11/30/01, with a photograph of
Franklyn Reid, The license was found near the body of Franklyn Reid on December 29, 1998. This evidence is proposed to be relevant and material because Franklyn Reid obtained it  in Pennsylvania  one, day after he failed to appear in court and was ordered rearrested so that the court could infer that he obtained his license by fraud in order to conceal his true identity in the event he was stopped by a police;

10. List of police recruits, including Scott Smith, who attended the 206th training session December 13, 1996 through April 1997 and curriculum.

The court has carefully reviewed the exhibits in support of the defendant's offer of proof and has read the several memoranda of law submitted by the defendant, In compliance with the statute, the defendant's offer of proof is specific and thorough in its names of witnesses, the substance of their testimony and the purpose behind the evidence offered. All the evidence offered by the defendant relates to the statutory defense  under General Statutes § 53a. 22. That statute reads in pertinent part:

(c) A peace officer or authorized official of the Department of Correction or the Board of Parole is justified in using deadly physical force upon another person for the purposes specified in subsection (b) of this section only when he reasonably believes such to be necessary to: (1) Defend himself or a third person from the use
or imminent use of deadly Physical force; or (2) effect an arrest or prevent the escape from custody of a person whom he reasonably believes has committed or attempted to commit a felony which involved the infliction or threatened infliction of serious physical injury and if, where feasible, he has given warning of his intent to use deadly physical force.

 General Statutes § 53a‑16 provides:

In any prosecution for an offense, justification as defined in sections 53a‑17 to 53a‑23, inclusive, shall be a defense. The two elements of murder are simply causation and intent. As to intent, the only element at issue in this case at this time. General Statutes § 53a‑54a states that a person is guilty of murder when with intent to cause the death of another person," he causes the death of that person. None of the proffered evidence rebuts the finding of probable cause as to the defendant's intent to cause the death of Franklyn Reid. Whether the defendant was justified in using the deadly force is not an issue to determine at this preliminary stage. See In re Daniel H. 47 Conn. App. 308, 316 (1997) ("The proffered evidence, however, does not rebut the elements of  murder  but, rather, seeks too justify the respondent's actions on the night in question"). This evidence may well be relevant to the defense under General Statutes § 53a‑22 that would be raised at trial. Under General Statutes § 5 3a‑12, "when a defense other than affirmative defense, is raised at trial, the state shall have the burden of disproving such defense beyond a reasonable doubt."

None of the authorities cited by the defendant stands for the proposition
	 that a justification defense, no matter how strong, should be considered at a
	probable cause hearing. What those cases discuss is the court's role in deciding
	summary judgment motions in the civil context of § 1983 actions. While the
	substantive law within those cases may well apply to the defense under General
	Statutes § 53a 22(c), it serves no purpose in the procedural context of this probable
	Cause hearing  to determine the objective reasonableness under the Fourth
	Amendment of the defendant's use of deadly force. See In re Daniel H., supra,
	47 Conn. App. 317 ("While evidence that the respondent was acting under extreme
	emotional disturbance or in self‑defense may be relevant at trial, it is not relevant
	for the purpose of rebutting the trial court's finding of probable cause as to the
	charge of murder."). In Waldo v.Spenser, 4 Conn. 71, 78 (1821), the Supreme
	Court described the limited function of the probable cause hearing:

		Waldo [the accused] was not on trial, and whether he was guilty or
		not, was no point on which the exercise of the justice's jurisdiction
		depended. It was merely his duty to make sufficient enquiry, and
		ascertain whether there was probable cause for remitting him To trial
		before a court which had cognizance of the offence, and could judge
		efficaciously.

	A more recent Supreme Court again noted that the probable cause hearing is "not
	designed to be a mini‑trial." State V. Conn, supra, 234 Conn. 110.

	The Proffered evidence, taken as believed, does not rebut the probable
	cause finding that the defendant intended to cause the death of Franklyn Reid. In
	the case In re Keijam T., 221 Conn  109, 126 (1992) the Supreme Court explained,

				The purpose of  this  procedure is to protect the proceeding
				from evidence that, even if believed, would not undermine
				the court's antecedent finding of probable cause while, at
				the same time, safeguarding the accused's interest in
				attempting to persuade the court that, despite the state's
				evidence, based upon all the available evidence probable
				cause is lacking.

			The proffered evidence may show that the defendant was justified in using
	deadly force under General Statutes § 53a‑22(c), but consideration of that evidence
	for that purpose is for the trier of fact in this case. Because the court determines
	that the evidence offered by the defendant is not sufficient to rebut the finding of
	probable cause, the court will not allow the defendant to present his evidence.

		So ordered.
					Dipentma,J.