State v. Arena

• Decision Date: 25 January 1994
• Docket Number: No. 11564,11564
• Citation: 33 Conn.App. 468,636 A.2d 398
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Anthony ARENA.

Page 398

636 A.2d 398

33 Conn.App. 468

STATE of Connecticut v. Anthony ARENA.

No. 11564.

Appellate Court of Connecticut.

Argued Oct. 26, 1993.

Decided Jan. 25, 1994.

Martin Zeldis, Asst. Public Defender, for appellant (defendant).

Marjorie Allen Dauster, Asst. State's Atty., with whom, on the brief, were James Thomas, State's Atty., and Herbert Carlson, Jr., and Kimberly Graham, Asst. State's Attys., for appellee (state).

Before LAVERY, FREDERICK A. FREEDMAN and SCHALLER, JJ.

FREDERICK A. FREEDMAN, Judge.

The defendant 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 second degree in violation of General Statutes § 53a-123(a)(3). ² The defendant claims that the trial court improperly (1) denied his motion to suppress a victim's out-of-court identification of him, (2) denied his motion for judgment of acquittal because the evidence was insufficient to support his conviction of robbery in the first degree, (3) refused to grant his request that it instruct the jury on the crime of robbery in the second degree in violation of General Statutes § 53a-135(a)(2), ³ as a lesser included offense of the crime of robbery in the first degree especially after the court permitted counsel to argue robbery in the second degree to the jury, (4) denied his motion for judgment of acquittal because the evidence was insufficient to support his conviction of larceny in the second degree, and (5) failed to charge as requested on the count of larceny in the second degree. The judgment of the trial court is affirmed.

The jury reasonably could have found the following facts. On August 13, 1991, at about 7:30 p.m., the defendant entered a Chucky's convenience store in Hartford. Two employees, Dhanwantie Ramdayal and Alexander Smolkin, were standing behind the counter. The defendant picked out a candy and took it to the counter. He then told Ramdayal to "put it in a bag." Ramdayal was confused by the defendant's statement and asked, "Put what in a bag?" The defendant answered, "Put all the money in a bag." As the defendant said that, he placed an opaque plastic shopping bag on the counter. His hand was at the top of the bag and he gripped an object inside the bag. He pointed the object in the bag at Ramdayal. Ramdayal testified that she thought it looked like a gun and that it was round and about fifteen or sixteen inches long.

As the defendant was asking for the money, Smolkin walked toward the phone. The defendant then said to Smolkin, "Don't call the police" and "Don't play cool." Smolkin turned and saw the object in the bag in the defendant's hand. Smolkin could see the shape of the object and thought it looked like a long barrelled weapon. Smolkin further testified that in trying to make light of the situation during the robbery he joked, "Is that a real gun?" and "Is it a real robbery?"

Ramdayal was nervous and had difficulty opening the cash register. The defendant told her to open the register fast and "hurry up" and "nothing will happen." When she opened the register, she withdrew the cash from the drawer. She did not know the precise amount of money she withdrew, but she knew it was less than $100, because it is the store's policy not to have more than $100 in the drawer. She extended her hand with the money in it and the defendant snatched the money out of her hand. The defendant turned and left the store quickly, and Ramdayal called the police. The incident was taped by security cameras and the tapes were shown to the jury and admitted into evidence.

On or about September 11, 1991, the defendant was arrested and charged with robbery in the first degree, larceny in the second degree and larceny in the sixth degree. He pleaded not guilty to those charges. The trial commenced on May 6, 1992. At the close of the state's case, the defendant filed a motion for judgment of acquittal and a motion for a new trial with respect to the robbery in the first degree and larceny in the second degree counts. The trial court denied the motion with respect to the robbery count and reserved judgment with respect to the count of larceny in the second degree. On May 15, 1992, the jury returned a verdict of guilty on all three charges. At the sentencing hearing, the defendant moved for a judgment of acquittal with respect to both larceny convictions. The trial court denied the motion with respect to the larceny in the second degree conviction and granted the motion with respect to the conviction of larceny in the sixth degree. This appeal by the defendant followed.

I

The defendant first claims that the trial court improperly denied the defendant's motion to suppress Smolkin's out-of-court identification of the defendant. The trial court held a pretrial hearing on the motion. The following additional facts are necessary for the disposition of this claim.

At the hearing, Smolkin testified that during the robbery he had a good opportunity to observe the defendant in that he was standing behind the counter and looking directly at the defendant's face. Smolkin described the defendant as being about five feet six inches tall with straight, short hair and light skin, wearing a short-sleeve T-shirt, and having callouses on his left hand.

On September 11, 1991, Hartford police officer Gary Smith showed Smolkin an array of eight photographs of similar looking men. The defendant's photograph was in position four, the right end of the top row. The photographs were located on one half of a manila folder and there were spaces for the signatures of witnesses on the other half. The signature spaces were arranged to correspond to the location of each photograph. When the folder was open, the photographs and the signature spaces were visible. When it was folded back, however, only the photographs were visible. When Smith showed the board to Smolkin, the signature spaces were folded under, and the folder was laid flat on the table in front of Smolkin. The signature spaces were not visible. Smolkin could have turned the folder over and viewed the signature spaces. Smith testified that at no time prior to his making the identification, however, did Smolkin turn the folder over.

The signature space corresponding to the photograph of the defendant contained the signature of Angel Gonzalez. This signature apparently related to an identification of the defendant, made earlier that day, as the perpetrator in an unrelated robbery. There were no other signatures in the spaces on the folder.

After the hearing on the motion to suppress, the trial court denied the motion, ruling that the procedures were not unnecessarily suggestive, and therefore declined to address the issue of the reliability of the identification.

"We have repeatedly held that a conviction based on an in-court identification which follows an out-of-court photographic identification will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Fullwood, 193 Conn. 238, 243-44, 476 A.2d 550 (1984), quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); State v. Vass, [191 Conn. 604, 609, 469 A.2d 767 (1983) ]; State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983). A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure. State v. Hinton, 196 Conn. 289, 293, 493 A.2d 837 (1985); State v. Fullwood, supra, 193 Conn. at 244, 476 A.2d 550. The determination whether an identification procedure has violated a defendant's due process rights must be made on an ad hoc basis. The inquiry is two-pronged: [F]irst, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the totality of the circumstances. State v. Hinton, supra, 196 Conn. at 292-93, 493 A.2d 837, quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985). State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985)." (Internal quotation marks omitted.) State v. Vaughn, 199 Conn. 557, 563, 508 A.2d 430, cert. denied, 479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 585 (1986).

With regard to the first prong, the defendant claims that Gonzalez' signature in the signature space corresponding to the defendant's photograph resulted in an unnecessarily suggestive identification. We disagree.

In State v. Vaughn, supra at 565, 508 A.2d 430, our Supreme Court held that a photographic array, containing a variety of photographs, was not unnecessarily suggestive, where the photograph of the defendant was marked with the date that the identifying witness had been notified by the police that a suspect had been apprehended. The court reasoned that the record did not indicate that the witness had noticed the date on the photograph when he viewed the array.

Here, there is nothing in the record to indicate that Smolkin saw Gonzalez' signature. In fact, the record indicates that Smolkin did not see the signature before identifying the defendant. Therefore, we hold that the array used in this case was not unnecessarily suggestive, and, thus, we need not consider the second prong regarding the reliability of the identification.

II

The defendant next claims that the trial court improperly denied the defendant's motion for judgment of acquittal because the evidence was insufficient to support the defendant's conviction of robbery in the first degree. The defendant claims that there was no evidence that he displayed or represented by his words or conduct that he had a firearm. We disagree.

"To determine the sufficiency...