State v. Crosby

• Decision Date: 05 June 2018
• Docket Number: AC 37523
• Citation: 182 Conn.App. 373,190 A.3d 1
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Darren Matthew CROSBY

182 Conn.App. 373

190 A.3d 1

STATE of Connecticut

v.Darren Matthew CROSBY

AC 37523

Appellate Court of Connecticut.

Argued November 27, 2017

Officially released June 5, 2018

Alec Gulash, certified legal intern, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom were Elizabeth S. Tanaka, assistant state's attorney, and, on the brief, Gail P. Hardy, state's attorney, for the appellee (state).

DiPentima, C.J., and Elgo and Bear, Js.

BEAR, J.

The defendant, Darren Matthew Crosby, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a–134 (a) (4)¹ and larceny in the third degree in violation of General Statutes (Rev. to 2007) § 53a–124 (a) (2).² On appeal, the defendant claims that the trial court erred in denying his motions to dismiss and his motion to suppress, and improperly concluded that (1) the state and the Massachusetts Department of Correction did not violate his rights under article IV, § 2, clause 2, of the United States constitution and the Interstate Agreement on Detainers (IAD), General Statutes § 54–186 et seq. ; (2) the state's delay in executing an arrest warrant against him did not violate his due process rights; (3) the witnesses' identification of him from a photographic array was not the product of an unreliable identifiable procedure; and (4) the jury charge on eyewitness identification was sufficient. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. On December 18, 2008, at approximately 1:44 p.m., a robbery took place at the Webster Bank in Enfield. The perpetrator of the robbery was described as a tall black male, clean cut, with an athletic build, and wearing a black hooded type jacket, eyeglasses, a white Red Sox ball cap with a black brim, and black gloves with a Cincinnati style "C" on the backs. Suzanne McVey, a bank teller, acknowledged the man's presence while she assisted another customer and told him that she would be with him shortly. When called forward to the teller window, the man approached McVey, mumbled something inaudible, and handed her a note, which stated, "this [is] a robbery, give [me] all [the] fifties and hundreds, and ... [I have] a gun." McVey complied with the demand and gave the man cash from her drawer, which later was determined to total $1730. After the man left the bank, McVey informed the bank manager, Kathleen Lee, that she had just been robbed. Lee had been standing behind the teller line, about a foot and one-half from McVey, during the robbery. In accordance with bank procedure, the doors of the bank were locked to prevent the perpetrator from returning, and Lee called 911.

Detective Michael Bailey of the Enfield Police Department arrived at the bank at about 2 p.m., approximately fifteen minutes after the robbery. Lee assisted Bailey in reviewing the bank's surveillance footage. Multiple images of the perpetrator were captured by the bank's security camera. Detective David Thomas of the Enfield Police Department also assisted with the investigation of the robbery. After arriving at the bank, Thomas took a sworn statement from McVey, in which she described the perpetrator as a "[b]lack male, six feet to six feet, five inches, about thirty years old, thin to a medium build, well groomed, no facial hair .... Wearing a white baseball type cap possibly with a Nike logo ... dark-rimmed regular eyeglasses, black fleece pullover and black pants." No written statement was taken from any other witness.

Detective William Cooper of the Enfield Police Department, who also responded to the bank on the day of the robbery, was assigned as the case officer for the investigation. On February 3, 2009, Cooper went to the bank to present a photographic array to the witnesses to the robbery. McVey and Lee viewed the photographic array separately, and each identified the defendant as the perpetrator of the robbery.

An arrest warrant for the defendant, charging him with larceny in the third degree in violation of § 53a–124 (a) (2), and robbery in the first degree in violation of § 53a–134 (a) (4), was issued on February 18, 2009. The defendant was taken into custody by the Enfield police on November 6, 2013.

On April 21, 2014, the defendant filed a motion to dismiss and an accompanying memorandum of law, asserting, inter alia, that the state's unreasonable and unjustifiable delay in executing the arrest warrant violated his rights under the sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution.³ Also on April 21, 2014, the defendant filed a motion to suppress the witnesses' identifications of him. Evidentiary hearings on the motion to dismiss and motion to suppress took place on April 24 and 25, 2014. On April 28, 2014, the court denied the defendant's motion to suppress the witnesses' identifications. The court did not render a decision on the defendant's motion to dismiss prior to trial.

Following a jury trial, on May 5, 2014, the defendant was found guilty of robbery in the first degree in violation of § 53a–134 (a) (4) and larceny in the third degree in violation of § 53a–124 (a) (2). On June 18, 2014, another hearing was held on the defendant's motion to dismiss. On July 1, 2014, the defendant filed a supplemental memorandum of law in support of his motion to dismiss, and he also filed a second motion to dismiss and supporting memorandum of law asserting a violation of his rights under the IAD. On July 9, 2014, the state filed an opposition to the defendant's second motion to dismiss. On August 13, 2014, the court denied the defendant's motions to dismiss. On August 15, 2014, the court sentenced the defendant to a total effective term of five years imprisonment, with five years of special parole, to run consecutively with sentences pursuant to which he was incarcerated in Massachusetts. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court erred in denying his motions to dismiss and improperly concluded that (1) the state and the Massachusetts Department of Correction did not violate his rights under article IV, § 2, clause 2, of the United States constitution and the IAD, § 54–186 ; and (2) the state's delay in executing an arrest warrant against him did not violate his due process rights. We are not persuaded.

The following additional facts, as set forth in the court's memorandum of decision and otherwise contained in the record, and procedural history are relevant to these claims. On February 18, 2009, a warrant was issued for the defendant's arrest in connection with the December 18, 2008 robbery. At that time, the defendant remained incarcerated in Massachusetts for multiple bank robberies committed in that state.⁴ On July 9, 2010, Enfield Police Detective Willie Pedemonti and James Howard, an inspector with the Hartford state's attorney's office, discussed, through facsimile transmissions, authorization to extradite the defendant from Massachusetts to Connecticut, and such extradition was authorized. Extradition, however, was not pursued at that time.

On September 1, 2010, the Enfield Police Department received a telephone request from "Rafael" of the MCI–Cedar Junction correctional facility at South Walpole in Massachusetts, for the defendant's warrant. The telephone call was followed by a facsimile transmission from the MCI–Cedar Junction records department, requesting a copy of the warrant for the defendant's arrest "[i]n order to be able to initiate the IAD process." In response to the request, Stephanie "Dee" Beninato, the records clerk for the Enfield Police Department, faxed a copy of the warrant that same day. It is undisputed that Massachusetts did not treat the faxed warrant as a detainer, and therefore, it did not provide the defendant with IAD forms at that time.

On or about October 13, 2011, in response to an inquiry by the defendant, the Massachusetts Department of Correction advised the defendant that an IAD detainer had not been lodged, and that he should submit a written request to the state to lodge a detainer. On or about December 19, 2011, the defendant sent a "Notice of Whereabouts & Demand for Speedy Trial" to the geographical area number thirteen court in Enfield. Maria Reed–Cook, deputy clerk for that court, advised the defendant in a letter dated December 19, 2011, instead to contact the state's attorney's office in Hartford. On or about April 30, 2012, the defendant sent a "Notice of Whereabouts and Demand for a Speedy Trial" and accompanying letter to Howard at the Hartford state's attorney's office, advising him of his location of incarceration and his efforts to have the arrest warrant served, and asserting his right to a speedy trial.⁵ On May 2, 2012, Howard responded to the defendant and notified him that, as an incarcerated prisoner in another state, his speedy trial request did not apply because he was incarcerated in another state, but that he should contact his prison counselor to assist him in making the necessary arrangements to be brought to Connecticut under the provisions of the IAD.

On or about January 28, 2013, the Massachusetts Department of Correction Souza–Baranowski Correctional Center records manager, Jamie Lewis, notified the defendant in a written letter that "[o]ur records ... indicate that you have been previously advised that in order to begin the IAD process a detainer must be lodged by the requesting state. A detainer has not been lodged. You have previously been advised that you must write to [Connecticut] and request that a detainer be lodged. Once a detainer is received the IAD process may be initiated." On February 1, 2013, in response to another inquiry from the defendant,...